IN THE SUPREME COURT OF OHIO

STATE OF OHIOPlaintiff-Appellee Case No.

vs.

BLAKE A. RILEYDefendant-Appellant

/drp

-0712

On Appeal from the MuskingumCounty Court of Appeals,Fifth Appellate DistrictCourt of Appeals Case No.CT 2012-0022

2013-Ohio-1332(Trial Court No. CR 2011-0122)

MEMORANDUM IN SUPPORT OF JURISDICTIONOF DEFENDANT-APPELLANT

BLAKE A. RILEY

ELIZABETH N. GABA (0063152)Attorney at Law1231 East Broad StreetColumbus, Ohio 43205(614) 586-1586Facsimile (614) 586-0064gabalaw@aol.comCOUNSEL FOR DEFENDANT-APPELLANT

D. MICHAEL HADDOX (0004913)Muskingum County Prosecuting Attorney

27 North 5th Street, 2nd FloorZanesville, Ohio 43702(740) 455-7123Facsimile (740) 455-7141COUNSEL FOR PLAINTIFF-APPELLEE

^^^ ^^ ^^^^

^^^RK OF COURTSUPREME C'UURI OF OUlO

TABLE OF CONTENTS .......................................................... ............. 1

Table of Authorities .. . . .. . . .. . . . . . . . . .. . . . . . . . . . . .. . .. . . . . . . . .. . . .. . . . . .. . . . ... .. . . .. . . . . .. . . . . . .ii

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTERE S T . . .. . . .. ... .. . . ... . .... . . . . . .. . .. . .. .. . . . . . . . .. .. . . . . .. . . . . . . . . . . . ... . . . . ..... .. . . .. .. . .. .. .. . . ..... .... .. . ... ..... . . . .1

STATEMENT OF FACTS .............................................................................................1

STATEMENT OF THE CASE ..................................................................3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ........................................6

Proposition of Law No. I : . . . .. . . . . . . . . .. . .. . . . . . . . .. ... ... . . . . . . .. . . . . . . . . .. ... .. . ... . .. ... . . . . . .6

PROPOSITION OF LAW 1. THE TRIAL COURT COMMITTED PLAIN ERRORIN ITS INSTRUCTION TO THE JURY IN 1) FAILING TO GIVE THE JURYTHE REQUIRED CAUTIONARY INSTRUCTION REGARDING THETESTIMONY OF AN ALLEGED ACCOMPLICE UNDER R.C.2923.03(D) ASTO THE TESTIMONY OF RYAN BARLOW AND JAMIE HUTTON; AND 2)FAILING TO IDENTIFY BRITTANY FUNK AS A THIRD POTENTIALACCOMPLICE IN A CAUTIONARY INSTRUCTION. AS SUCH APPELLANTWAS DENIED A FAIR TRIAL.

Proposition of Law No. 2 : . ..... ... ...... .... . ... .... ..... .... ...... .... .........................7

PROPOSITION OF LAW 2. THE TRIAL COURT ERRED TO THE PREJUDICEOF APPELLANT WHEN IT SENTENCED APPELLANT TO CONSECUTIVESENTENCES ON COUNTS 4,5 AND 6 OF THE INDICTMENT INVIOLATION OF R.C. 2941.25 - ALLIED OFFENSES OF SIMILAR IMPORT-AND THE DOUBLE JEOPARDY CLAUSES OF THE OHIO AND UNITEDSTATES CONSTITUTIONS.

Proposition of Law No. 3 ... . .. ...... ......... . ....... . ... ...... ... ... ... ......... ... ... ........8PROPOSITION OF LAW 3. THE COURT OF COMMON PLEAS DID NOTHAVE SUBJECT MATTER JURISDICTION OVER THE CRIlV1INAL TRIALBECAUSE BLAKE RILEY WAS UNDER EIGHTEEN YEARS OLD AT THETIME OF THE ALLEGED OFFENSE AND WAS NOT PROPERLY BOUNDOVER FROM THE JUVENILE COURT. AS SUCH APPELLANT WASDENIED A FAIR TRIAL.

Proposition of Law No. 4 . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .10

PROPOSITION OF LAW 4. THE COURT ERRED TO THE PREJUDICE OFAPPELLANT WHEN IT FAILED TO RECORD ALL THE PROCEEDINGS INTHIS CASE. AS SUCH DEFENDANT WAS DENIED A FAIR TRIAL.

Proposition of Law No. 5 ... ... ... .. .. . . ....... .... . ... . ..... ... . ..... .. . .. .... . .. ........ . .. . . ..10

PROPOSITION OF LAW 5. APPELLANT WAS DEPRIVED OF THEEFFECTIVE ASSISTANCE OF COUNSEL DUE TO NUMEROUS ERRORSAND OMISSIONS WHICH PREJUDICED APPELLANT'S TRIAL

Proposition of Law No. 6 ............ ......... ... ... . .... . ............ ...... ............ ...... ....12

PROPOSITION OF LAW 6. THE TRIAL COURT ERRED AS A MATTER OFLAW, TO THE PREJUDICE OF APPELLANT, BY CONVICTINGAPPELLANT, BECAUSE THIS CONVICTION WAS BOTH AGAINST THEMANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WASINSUFFICIENT TO SUPPORT THE CONVICTION.

CONCLUSION ................................................................................................................13

PROOF OF SERVICE .....................................................................................................13

APPENDIX Opinion and Entry of the Muskingum County, Fifth District Court of

Appeals, March 22, 2013 ......... ...... .......................................... .....app.p.l

TABLE OF AUTHORITIES

CASES

Crawford v. Washington, 541 U.S. 36 (2004) .......................................12

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) ..........................12

State, ex rel. Parsons, v. Bushong (1945), 92 Ohio App. 101 .....................9

State v. Clark (1995), 101 Ohio App. 3d 389 ........................................13

State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791 .............................13

State v. Crawford, 10th Dist. No. O1AP-1428, 2003-Ohio-1447 ....................7

State v. Getsy ( 1998), 84 Ohio St. 3d 180 ............................................13

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.......8

State v Pore, 2012-Ohio-3660 ...........................................................8

State v. Said (1994), 71 Ohio St.3d. 473 ...............................................10

State v. Wilson (1995), 73 Ohio St.3d 40 ..............................................9

OHIO REVISED CODE

ii

R.C. 2151.23(A) (1) ..................................................................... 9

R.C. 2151.26 ..............................................................................9

R.C. 2152.03 ...............................................................................9

R.C. 2923.03(D) ... ... ...... ... .......... . . ... . ..... .. ... . ...................... .. . .. .....1, 6,7

R.C. 2941.25 ..............................................................................7, 8

OHIO RULES OF PROCEDURE

CRIM.R. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

CRIM R. 52(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Juv. R. 30 . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...9

iii

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALINTEREST

This case began as an improperly filed and improperly bound-over Juvenile case

alleging Aggravated Burglary and Kidnapping, where the Defendant was a short, 5'3" 17

year old boy whose physical description did not match the description of any of the

perpetrators. In Common Pleas Court, numerous errors occurred, including but not

limited to that co-defendants and the female get-away driver, who got deals specifically if

they testified against Riley, were allowed to testify without the R.C. 2923.03(D)

cautionary instruction, and with a misleading explanation of their deals with the State and

a misleading explanation of their incentives to testify - indeed, it was implied to the jury

that they had no incentive to testify other than "the public good". Further, much of the

trial was not recorded. This boy is now sentenced to 23 years in prison, in part because

of these and other errors, and in part because counts that should have merged did not at

sentencing. Defendant's Federal and State Constitutional rights were violated.

STATEMENT OF FACTS

On the night of December 12 and into the early morning of December 13, 2008

while Larry and Becky Omdorff were sleeping, Ryan Barlow and Jamie Hutton, entered

the Omdorff home and stole from them. After they went back to Jamie Hutton's

apartment, there was a decision to go back to the Orndorffs to get more money and

property and pills. The State alleged that Blake Riley accompanied Barlow and Hutton

and participated in the thefts and home invasion. The Orndorffs were held at gunpoint,

and money and guns were stolen. The police investigated but were stymied until August

2010, when a woman named Keela Davis, supposedly angered that Ryan Barlow would

not allow her to move to Texas with their child in common, told her mother Kim Wells,

1

that Ryan Barlow, Jamie Hutton and Blake Riley were involved in the Omdorff

burglaryr. Kim Wells then informed Becky Orndorff of what Keela had stated. At the

time of these events in December 2008 Blake Riley was 17 years old.2

The testimony against Blake Riley primarily came from Ryan Barlow, Jamie

Hutton, and Brittany Funk - who supposedly was the "getaway driver". Jamie Hutton

on March 11, 2011 in Case CR2011-0049, pled to a Bill of Information and pled to an F 1

Aggravated Burglary with a 3 year Firearm Spec, two F 1 Aggravated Robberies each

with a 3 year firearm spec, two Fl Kidnappings each with a 3 year firearm spec., an F3

Theft of Firearms, and an F4 Theft. Depending on how one views the merger and allied

offense issues here, Jamie Hutton could have received 46 r/z years plus, presumably one

firearm spec. His plea agreement was for 16 years on this case and 2 years on an

unrelated theft case. His plea agreement further required that he "testify against co-

defendant(s), including but not limited to, providing a tape-recorded statement of his

involvement and the involvement of others in the crime(s) charged herein, participate in

pre-trial preparation, and provide in-court testimony of his involvement and the

involvement of others in the crime(s) charged herein3."

Similarly, Ryan Barlow, on March 9, 2011, in Case CR2011-0050, pled to a Bill

of Information and pled to an F 1 Aggravated Burglary and one F3 Theft of a Firearm,

and one F4 Theft. His plea agreement was for 7 years.4

1 Trial Tr. p.3461.8-14; p.3501.8-10; p.481.2 Trial Tr. p.188 1.4, p.4171.15.3 State v Hutton, CR2011-0049, Waiver and Plea of Guilty to Prosecutor's Bill of

Information, and Tr. tr. p. 4241.14.4 State v Barlow, CR2011-0050, Sentencing Entry, Tr. tr. p.416 1.2-25.

2

Considering that these two young men faced very significant time, they had a

profound motive to testify against Blake Riley - indeed to say whatever it was that the

State wanted them to say.

Moreover, Brittany Funk, the "getaway driver"5 and Ryan Barlow's sometime

girlfriend, was never charged6. She too had a profound motive to testify against Blake

Riley.

So these three people, who had all made deals with the prosecutor, Ryan Barlow7

Jamie Hutton8 and Brittany Funk9, said Blake was present at the Orndorff burglaries.

Of the group, only Blake Riley went to trial. Blake had two alibis. His first was a

"time and place" alibi. Blake's other alibi was a "physical" alibi. Blake's physical

description did not match the description of the intruder or intruders given by Larry and

Becky Orndorff10. Detective Todd Mahle told Blake's mother, after seeing Blake in

2010, "my question's answered. The guys that did this were tall, and one had real bright

blue eyes, and he said he [Blake} is just a little guy.lt

STATEMENT OF THE CASE

In December 2008, Blake Riley was a juvenile, 17 years old. On April 11, 2011,

Det. Mahle filed a seven-count Complaint in the Muskingum County Juvenile Court,

5 Trial Tr., p.374 - 377.6 Trial Tr., p. 381,1.21-25; p.382,1.2-10,1.21-25.7 Trial Tr., p.412-416.8 Trial Tr., p.4341.12-13, p.4441.12-13.9 Trial Tr. p.374-379.10 Tr. tr. p.199, p.2311.20 to 2321.7, p.221 1.22-25, p. 2281.4, p.2511.24, p.2521.22,p.2591.10-14, p.479 1.11, p.485-486, p.4871.21-24, p.488-490, p.4931.1-4.11 Tr. tr. p.5291.17-25.

3

Case No. 2112028112. He alleged that Blake Riley had committed the offenses of 2

counts of Aggravated Robbery (F l); 1 County of Aggravated Burglary (F 1), 2 Counts of

Kidnapping (F1), 1 count of Grand Theft of Firearm (F3), and 1 Count of Grand Theft

(F4). Nowhere in the Complaint is it stated that the offenses occurred in Muskingum

County Ohio, or even in Ohio at all13. There is no address listed for the place of the

offense. On May 12, 2011, the Juvenile Prosecutor filed a Motion for Transfer of

Jurisdiction and Bindover Hearing. Det. Mahle testified at the Bindover hearing that

Keela Davis the mother of Ryan Barlow's childl4, and Brittany Funk the girlfriend of

Ryan Barlow, named Blake Riley15. Further Brittany placed Ryan in the car with her,

making him a lesser player16. And Det. Mahle told Blake's mother that the physical

description of the perpetrators did not match Blake Riley17. And there was no forced

entryr8. Defense counsel argued that there was not enough evidence for probable cause

for -a bindover'9, including but not limited to because the Complaint did not give the court

jurisdiction. Nevertheless on May 17, 2011 Judge Hooper signed a Judgment Entry for

Bindover and transferred jurisdiction to the Court of Common Pleas20.

On May 18, 2011, a 10-count Indictment was filed against Blake Riley in

Common Pleas Court21. He was charged with Aggravated Burglary F 1 with a firearm

12 Complaint, In the Matter of Blake A. Riley, Muskingum County Juvenile Court,

21120281, 4-7-11.13 Id., also Bindover tr., p.42 1.7-11.14 Bindover tr. p.21 1.8-1615 Bindover tr. p.181.22-23, p.211.17-2316 Bindover tr. p. 231.5-1017 Bindover tr. p.401.17-22.18 Bindover tr. p.41 1.14-17.19 Bindover tr. p.49 1.2-9.20 In the Matter of Blake A. Riley 21120281, Judgment Entry Order of Transfer

21 Indictment State v Blake A. Riley.

4

spec, Theft F3, Theft F4, Aggravate Burglary F 1 with a firearm spec, Aggravated

Robbery F 1 with a firearm spec, Aggravated Robbery F 1 with a firearm spec,

Kidnapping F 1 with a firearm spec., Kidnapping F 1 with a firearm spec, Theft, and Theft.

Before the jury trial started, the State moved to dismiss the two Aggravated

Robbery charges and moved to dismiss the firearm spec on the Aggravated Burglary

count 1. They amended the two F4 thefts to say $1000 to $7500, and amended the last

theft to say $7500 to $100,000. And so his charges were now, Count 1: Agg Burg F 1,

Count 2: Theft of firearm F3, Count 3: Theft F5, Count 4: Ag Burg firearm spec Fl,

Count 5: Kidnapping firearm spec F 1, Count 6: Kidnapping firearm spec F 1, Count 7:

Theft of firearm F3, Count 8: Theft F422.

On January 20, 201.2, the jury convicted Blake on all counts23. At a merger

hearing held February 6, 2012, the Court ruled that Counts 2 and 3 merged with Count 1

and he was sentenced on Countl; Counts 7 and 8 merged with Count 4 and he was

sentenced on Count 4; and Counts 5 and 6 did not merge. The firearm specs on Counts

4, 5 and 6 merged and he was sentenced on one24. The Court sentenced him to an

aggregate term of 23 years, Count 1 - 4 years, Count 4 - 10 years, Firearm spec 3 years,

Count 5 - 6 years and Count 6 - 6 years. Counts 1 and 4 ran consecutive, Counts 5 and 6

ran concurrent to each other but consecutive to Counts 1 and 4, and the 3-year firearm

spec was consecutive to all the other counts25.

22 Tr. tr. p.106 1.10 to p.107 1.12.23 Tr. tr. p.7371.22 to p.7411.9.24 Merger tr., p.16 1.25 to p.21 1.4.25 Sentencing Entry.

5

The Defendant timely appealed to the Fifth District Court of Appeals, but they

aff^rmed the convictions on March 22, 2013. (Exhibit 1, State v Riley opinion and entry

2013-Ohio-1332).

PROPOSITION OF LAW 1. THE TRIAL COURT COMMITTED PLAIN ERRORIN ITS INSTRUCTION TO THE JURY IN 1) FAILING TO GIVE THE JURYTHE REQUIRED CAUTIONARY INSTRUCTION REGARDING THETESTIMONY OF AN ALLEGED ACCOMPLICE UNDER R.C. 2923.03(D) ASTO THE TESTIMONY OF RYAN BARLOW AND JAMIE HUTTON; AND 2)FAILING TO IDENTIFY BRITTANY FUNK AS A THIRD POTENTIALACCOMPLICE IN A CAUTIONARY INSTRUCTION. AS SUCH APPELLANT

WAS DENIED A FAIR TRIAL.

Defendant contends that the trial court committed plain error in its jury instructions

because it failed to give the cautionary instruction regarding the testimony of an alleged

accomplice required under R.C. 2923.03(D). Pursuant to Crim.R. 52(B), a plain error

that affects a substantial right may be noticed by an appellate court despite not being

brought to the attention of the trial court. When an accomplice testifies against a

defendant, R.C. 2923.03(D) requires that the trial court instruct the jury as follows:

"`The testimony of an accomplice does not become inadmissible because of hiscomplicity, moral turpitude, or self-interest, but the admitted or claimed complicity of awitness may affect his credibility and make his testimony subject to grave suspicion, and

require that it be weighed with great caution."It is for you, as jurors, in the light of all the facts presented to you from the witnessstand, to evaluate such testimony and to determine its quality and worth or its lack of

quality and worth."'

It is undisputed that the trial court failed to give the R.C. 2923.03(D) instruction.26

It is also undisputed that no objection was made by trial counsel27 to the absence of this

instruction and that plain error is the appropriate standard. The failure of the trial court to

include the cautionary instruction when it had an affirmative duty to do so was clearly

26 Trial Tr., Jury Instructions, p.689 1.25 to 719 1.9.

27 Trial Tr., p.719 1.2.

6

prejudicial and therefore substantially affected the outcome of the trial. Although the

jury was told that Hutton and Riley pled guilty, they were not given the details of the plea

agreements. On the contrary, it was implied that they had nothing to gain by testifying

against Riley28. The jury instructions did not contain the required warning that the

accomplice's testimony be viewed with "grave suspicion" and "great caution." R.C.

2923.03(D). Rather, the jury was instructed to consider Barlow, Hutton and Funk's

credibility in the identical manner it judged the testimony of all other witnesses. While

the victims did testify at trial regarding the events in question, they did not identify the

perpetrator as Blake Riley; indeed the physical descriptions they gave of the perpetrators

did not match Riley's description. As such, there was not sufficient corroborative

evidence to support Riley's conviction. Without the required jury instruction, a failure to

properly weigh the accomplice's testimony would have a significant impact in assessing

Riley's guilt. See State v. Crawford, 10th Dist. No. O1AP-1428, 2003-Ohio-1447.

Accordingly, there is plain error in the trial court's failure to give the mandatory jury

instruction on accomplice testimony under R.C. 2923.03(D).

PROPOSITION OF LAW 2. THE TRIAL COURT ERRED TO THE PREJUDICEOF APPELLANT WHEN IT SENTENCED APPELLANT TO CONSECUTIVESENTENCES ON COUNTS 4,5 AND 6 OF THE INDICTMENT INVIOLATION OF R.C. 2941.25 - ALLIED OFFENSES OF SIMILAR IMPORT-AND THE DOUBLE JEOPARDY CLAUSES OF THE OHIO AND UNITEDSTATES CONSTITUTIONS.

R.C 2941.25, Multiple counts states:

(A) Where the same conduct by defendant can be construed to constitute two or moreallied offenses of similar import, the indictment or information may contain counts for allsuch offenses, but the defendant may be convicted of only one.(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import,or where his conduct results in two or more offenses of the same or similar kind

28 Tr. tr. p.4241.14-15

7

committed separately or with a separate animus as to each, the indictment or informationmay contain counts for all such offenses, and the defendant may be convicted of all ofthem.

As recited in State v Pore, 2012-Ohio-3660, in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme Court revised its allied-offense

jurisprudence. Justice Brown's plurality opinion sets forth a new two-part test for

determining whether offenses are allied offenses of similar import under R.C. 2941.25.

The first inquiry focuses on whether it is possible to commit both offenses with the same

conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one

offense will always result in the commission of the other. Id. Rather, the question is

whether it is possible for both offenses to be committed by the same conduct. Id. If it is

possible to commit both offenses with the same conduct, the court must next determine

whether the offenses were in fact committed by a single act, performed with a single state

of mind. Id. at ¶ 49. Under Justice Brown's plurality opinion in Johnson, "the court need

not perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger." Id. at ¶ 47, 942 N.E. 2d 1061. Rather,

the court simply must ask whether the defendant committed the offenses by the same

conduct. Id. Justice O'Connor's plurality opinion advocates that the proper inquiry under

R.C. 2941.25(A) is not whether the two offenses can be committed with the same

conduct, but whether the convictions "arose from the same conduct that involves similar

criminal wrongs and similar resulting harm." Johnson at ¶ 70 (O'Connor, J., concurring in

judgment.) Under the facts of this case the second Aggravated Burglary is an allied

offense of the two Kidnapping charges.

PROPOSITION OF LAW 3. THE COURT OF COMMON PLEAS DID NOT

8

HAVE SUBJECT MATTER JURISDICTION OVER THE CRIMINAL TRIALBECAUSE BLAKE RILEY WAS UNDER EIGHTEEN YEARS OLD AT THETIME OF THE ALLEGED OFFENSE AND WAS NOT PROPERLY BOUNDOVER FROM THE JUVENILE COURT. AS SUCH APPELLANT WASDENIED A FAIR TRIAL.

The common pleas court lacked jurisdiction to indict, convict and sentence Blake

Riley due to an improper bindover from the Muskingum County Juvenile Court in 2011.

The Juvenile complaint never established jurisdiction because it never said where the

offense took place. Defendant contends also that the Juvenile court failed to consider the

statutory factors concern.ing amenability and failed to have a mental examination of the

child conducted before determining amenability. The Juvenile Division of the Court of

Common Pleas has exclusive original jurisdiction under the Ohio Revised Code

concerning any child who, on or about the date specified in the complaint, is alleged to be

a delinquent child for committing an act that would be an offense if committed by an

adult. R.C. 2151.23(A) (1); 2152.03; State v. Wilson (1995), 73 Ohio St.3d 40,43. The

issues of jurisdiction arise because of the undisputed record as to the failure on the filing

of the original complaint in juvenile court and the concurrent filing of the motion to

relinquish jurisdiction. Defendant further states that the juvenile court abused its

discretion in its lack of determination of the issue of the amenability of the juvenile to

treatment as prescribed by Juv. R. 30(C)(1) and 30(E)(1) through (5). Juvenile courts are

courts of limited and special jurisdiction. No presumption exists in favor of the

jurisdiction of such courts. The record below must show upon its face full compliance

with jurisdictional elements. State, ex rel. Parsons, v. Bushong (1945), 92 Ohio App. 101

[49 O.O. 245]. R.C. 2151.26(C) As the record does not reflect compliance therewith, the

juvenile court was without jurisdiction to effect a transfer of jurisdiction to the common

9

pleas court in the first instance.

PROPOSITION OF LAW 4. THE COURT ERRED TO THE PREJUDICE OFAPPELLANT WHEN IT FAILED TO RECORD ALL THE PROCEEDINGS INTHIS CASE. AS SUCH APPELLANT WAS DENIED A FAIR TRIAL.

Rule 22 of the Ohio Rules of Criminal Procedure provides: "In serious offense

cases all proceedings shall be recorded." Yet in this serious felony case, nearly all of the

colloquy between counsel and the court was not recorded. The transcript of proceedings

repeatedly shows that counsel would make an objection or need to discuss an evidentiary

issue and the court would direct the lawyers to a bench conference where presumably the

objections and evidentiary matters were discussed. (See e.g. Tr. 181, 279, 334, 371, 396,

423, 424, 448, 451, 458, 466, 470, 493, 510, 511, 521, 543, 545, 552, 553, 561, 565, 583,

611, 626, 646, 679). None of these discussions and issues were recorded, nor is it clear

that the Defendant was present by way of being within earshot for these discussions.

Months later, it is almost impossible to remember what was said during numerous

unrecorded bench discussions.

Failing to record the proceedings puts the Defendant in a particularly vulnerable

position for it is up to him to establish error below. If significant parts of the proceedings

are not recorded, it makes his task impossible. He is forced to guess as to the positions

taken by his counsel during these conferences and must speculate in part as to whether

his interests were adequately and constitutionally protected. Rule 22 is mandatory. This

was a serious case. All of the proceedings should have been recorded. Defendant was

denied his right to a complete transcript of proceedings and the convictions must be

reversed. State v. Said (1994), 71 Ohio St.3d. 473.

PROPOSITION OF LAW 5. APPELLANT WAS DEPRIVED OF THEEFFECTIVE ASSISTANCE OF COUNSEL DUE TO NUMEROUS ERRORS

10

AND OMISSIONS WHICH PREJUDICED APPELLANT'S TRIAL

The day after the burglaries, Larry Orndorff's daughter's friend Rod Copeland

walked under the Orndorffs' high deck, where ladders, a stove, and many other things

were stored, and he found a steel bar and a radio29. That bar supposedly had Blake's

DNA on it, along with Larry Orndorff s, and some other person.30 The defense argued

that Blake knew Ashley Orndorff, they had gone to prom, and he had worked on her car

more than once31. Although there were many footprints in other areas, there were no

fresh footprints in the snow from the house to the deck where the bar was found32. It is

thus unlikely that if Blake touched this bar, that it was at the time of the burglary. Further

there was no forced entry and the State developed no theory as to why a bar would have

been necessary.

The other piece of evidence was a footprint found for a size 12 shoe33. Many

people walked around the Omdorff home, including Mrs. Orndorff, the burglars, and the

police34. The Assistant Prosecutor had pictures taken of Blake's shoes at trial that had

been purchased for him years after the event, when Blake was three years older35. They

were size 9 ^/2 shoes, and measured 12 inches from toe to hee136. There was no discussion

at trial of the shoe sizes of Jamie Hutton and Ryan Barlow, and whether or not they wore

29 Tr. tr. p.324.30 Tr. tr. p.469.31 Tr. tr. p.460 1.1-9.32 Tr. tr. p.319 1.16.33 Tr. tr. p.269-270.34 Tr. tr. p.287-293.35 Tr. tr. p.3981.8-15.36 Tr. tr. p.450 1.10-22.

11

12 inch shoes, and Defense Counsel, surprised in the middle of trial with the "shoe

picture"37, had no time to investigate and did not ask for a continuance.

Defense counsel made, at minimum, the following errors and Defendant's

conviction must be reversed: Defense counsel failed to object to the use of the size 9 1/2

shoe/ 12 inch long shoe photographs and failed to continue to investigate the shoe sizes

of Barlow, Hutton and others. Counsel ineffectively cross-examined the State's primary

witnesses Barlow, Hutton and Funk by not confronting Barlow and Hutton with their

written plea agreements, and by not requiring the proffers and deals in writing for all of

them, and their recordings, to be presented by the State. He further failed to secure the

appropriate jury instructions regarding these witnesses.

Defense counsel stipulated to DNA evidence of Shawn Weiss38 from LabCorp,

regarding the so-called presence of Blake Riley's DNA on a steel bar, when in fact

Shawn Weiss was not the person who tested the steel bar, and had Shawn Weiss testified,

his testimony would have been excluded as a Crawford v. Washington, 541 U.S. 36

(2004), Confrontation Clause violation. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527

(2009). But for counsel's unprofessional errors, the result of the trial would have been

different.

PROPOSITION OF LAW 6. THE TRIAL COURT ERRED AS A MATTER OFLAW, TO THE PREJUDICE OF APPELLANT, BY CONVICTINGAPPELLANT, BECAUSE THIS CONVICTION WAS BOTH AGAINST THEMANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WASINSUFFICIENT TO SUPPORT THE CONVICTION.

Detective Todd Mahle testified that Blake Riley was not a strong suspect. In

August 2010, Kim Wells called the Omdorffs and said her daughter Keela Davis told her

37 Tr. tr. p.4501.10-22.38 Tr. tr. p.468 1.16 to 469 1.22.

12

that Blake Riley, Jamie Hutton, and Ryan Barlow were involved in the home invasion.

Blake Riley was not a strong suspect because he did not fit the initial description of the

intruders. Mrs. Orndorff initially said the intruder was not wearing glasses, had reddish-

brown blonde eyebrows, and she never said bright blue eyes. On Dec 13, 2008 she said

there was a second intruder. She described a five-eight to 6'0 slender built person with

"weird eyes". On December 18, 2008 Becky Orndorff called again and said he had

bushy eyebrows. In February 2009 Det Mahle told Blake's mother that Blake did not fit

the description of the intruders. In December 2008, Blake Riley, according to his mother

was 51391.

State v. Getsy (1998), 84 Ohio St. 3d 180, 193 describes that as to manifest

weight: "This inquiry requires an examination of the entire record and a determination of

whether the evidence produced attains the high degree of probative force and certainty

required for a criminal conviction." Looking at criminal cases regarding manifest weight

and its investigation, we turn to State v. Clark (1995), 101 Ohio App. 3d 389. 407-409

which directs us to examine "(5) the certainty of the evidence; (6) the reliability of the

evidence; (7) the extent to which a witness may have a personal interest to advance or

defend by his testimony." When observing these items - it is clear that Blake Riley did

not burglarize, did not steal, did not kidnap and did not possess a gun in this matter - the

result is against the manifest weight of the evidence.

Looking at criminal cases regarding sufficiency of evidence, we turn to State v.

Conway, 108 Ohio St. 3d 214, 2006-Ohio-791 ¶36. The evidence is insufficient to find

that Blake Riley burglarized, stole, kidnapped or possessed a gun.

13

CONCLUSION AND REQUEST FOR RELIEF

For the reasons, facts and law recited above, and any other reasons, Defendant-

Appellant requests that this Court accept this case, reverse the Fifth District Court of

Appeals, vacate the conviction of Defendant-Appellant and dismiss the case and/or

reverse the decision of the trial court and remand for new trial.

Respectfully Submitted,

Elizab N. Gaba (00631 2)Attor y for Defendant-Appellant1231 East Broad St.Columbus, Ohio 43205Telephone (614) 586-1586Fax: (614) 586-0064gabalaw@aol.com

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing document was served uponPlaintiff by tendering a copy to the Muskingum County Prosecutor, D. Michael Haddox,Esq., at 27 North Fifth Street, P.O. Box 189, Zanesville, Ohio 43702-0189, by ordinaryU.S. Mail, postage prepaid and/or hand delivery and or facsimile transmission, and/oremail transmission this 6th day of May, 2013.

s

ELIZ ETH N. GABA (0063152)Atto for Defendant-Appellant

14

^

COURT OF APPEALSMUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

MAR 22 2013

TY, OHIOOLERK

Hon. Patricia A. Delaney, P.J.Plaintiff-Appellee : Hon. William B. Hoffman, J.

Hon. Sheila G. Farmer, J.

-vs-Case No. CT2012-0022

BLAKE A. RILEY

Defendant-Appellant OPiNION

CHARACTER OF PROCEEDING

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Appellant:

ELIZABETH N. GABA1231 East Broad StreetColumbus, OH 43205

Appeal from the Muskingum County Courtof Common Pleas, Case No. CR2011-0122

AFFIRMED

For Appellee:

D. MICHAEL HADDOXMUSKINGUM CO. PROSECUTORRON WELCH27 N. 5th Street, Suite 201Zanesville, OH 43702-0189

,Fxcfre 11- 1

Aeio. r

V Muskingum County, Case No. CT2012-0022

Delaney, P.J.

2

{¶1 } Appellant Blake A. Riley appeals from the March 16, 2012 judgment

entry of conviction and sentence of the Muskingum County Court of Common Pleas.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{T2} Appellant is the former boyfriend of Ashley Orndorff, the granddaughter

of Larry and Becky Orndorff. Appellant was aware the Orndorffs generously

supported Ashley. They had cash on hand in their home which was available to

Ashley anytime. Appellant knew where the Orndorffs kept their cash and knew the

home was usually unlocked. He also knew the Orndorffs had many firearms in their

home.

{¶3} This case arose in the late-night hours of December 12, 2008 when

intruders broke into the home of Larry and Becky Orndorff while the Orndorffs were

sleeping and stole cash and property.

{¶4} The intruders decided to return in the early morning hours of December

13, 2008, and this time awakened Larry Orndorff. Both Orndorffs were held at

gunpoint and their home was ransacked; they were forced to turn over cash, firearms,

medication, and other property. The Orndorffs believed there were two intruders in

their home during the robbery, and Becky Orndorff heard one place a phone call

instructing someone to come pick them up and to "pop the trunk." Although most of

the telephones in the house had been disabled, Becky Orndorff was able to call 911 at

1:59 a.m.

` Muskingum County, Case No. CT2012-0022 3

{¶5} The Orndorffs did not get a good look at the intruders. Becky was aware

that the one who led her to the garage at gunpoint had blue eyes and was taller than

her husband, and of slender build, but he was wearing a ski mask or other type of

head covering, black clothing, and gloves. Investigators were not able to find any

useful fingerprints and did find marks in dust that confirmed the intruders wore gloves

during the robbery.

{T6} The Muskingum County Sheriff's Office immediately focused on the

phone call that had been placed during the robbery. They narrowed down the cell

phone towers that picked up calls from the Orndorffs' residence. Next they narrowed

down calls within twenty minutes of Becky Orndorff's 911 call, which were likely to be

the intruders calling their getaway driver. Eventually this investigative work led to a list

of six telephone numbers. Those telephone numbers led to interviews with several

individuals including appellant, Ryan Barlow, and Jamie Hutton, among others. AIl

denied their involvement in the home invasion.

{¶7} The investigation yielded few leads until a woman named Keela Davis

came forward in 2010 and told her mother that appellant, Ryan Barlow, and Jamie

Hutton were the three who had perpetrated the Orndorff home invasion. A fourth

individual, Brittany Funk, was the getaway driver. Law enforcement interviewed

Barlow, Hutton, and Funk and developed additional leads to confirm their suspicion of

appellant's involvement.

{%8} Appellant was initially charged as a juvenile and bound over to the

Muskingum County Court of Common Pleas. After indictment and before the start of

trial, the State dismissed two aggravated robbery charges and amended others with

° Muskingum County, Case No. CT2012-0022 4

the result that appellant stood trial upon one count of aggravated burglary [R.C.

2911.11 (A)(2)], theft of a firearm [R.C. 2913.02(A)(1)], theft in an amount greater than

$1000 and less than $7500 [R.C. 2913.02(A)(1)], aggravated burglary [R.C.

2911.11(A)(2)] with a firearm specification [R.C. 2941.145], two counts of kidnapping

[R.C. 2905.01(A)(2)] with a firearm specification [R.C. 2941.145], one count of theft of

firearms [R.C. 2913.02(A)(1)], and one count of theft in an amount greater than $7500

and less than $150,000 [R.C. 2913.02(A)(1)].

{¶9} The State's evidence at trial included the testimony of the Orndorffs and

the investigators. Ryan Barlow and Jamie Hutton, appellant's accomplices, also

testified, as did Brittany Funk. A former girlfriend of appellant's testified he admitted

his involvement in the home invasion to her when she asked him about it, and said

Jamie Flutton forced him into it.

{¶10} Appellant presented a number of alibi witnesses who claimed the night of

the robbery he was present at a peri'ormance by his sibling "Ciaudia" in Columbus,

Ohio. The State presented some evidence to indicate this show was performed a

different weekend than the one in question.

{¶1 1} Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at

the close of appellee's evidence and at the close of all of the evidence; the motions

were overruled. Appellant was found guilty as charged. The trial court determined

that a number of the counts and firearm specifications merged,' and sentenced

appellant to an aggregate prison term of 23 years.

' Counts two and three (two counts of theft) merged with count one (aggravated burglary);Counts seven and eight (theft) merged with count four (aggravated burglary); the firearmspecifications merge and appellant was sentenced on only one.

Muskingum County, Case No. CT2012-0022 5

{712} Appellant now appeals from the judgment entry of his conviction and

sentence.

{¶13} Appellant raises seven Assignments of Error:

{¶14} "I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS

INSTRUCTION TO THE JURY IN 1) FAILING TO GIVE THE JURY THE REQUIRED

CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF AN ALLEGED

ACCOMPLICE UNDER R.C. 2923.03(D) AS TO THE TESTIMONY OF RYAN

BARLOW AND JAMIE HUTTON; AND 2) FAILING TO IDENTIFY BRITTANY FUNK

AS A THIRD POTENTIAL ACCOMPLICE IN A CAUTIONARY INSTRUCTION."

{¶1 5} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES ON

COUNTS 4, 5, AND 6 OF THE INDICTMENT IN VIOLATION OF R.C. 2941.25-

ALLIED OFFENSES OF SIMILAR IMPORT-AND THE DOUBLE JEOPARDY

CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS."

{¶16} "Ill. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE

PREJUDICE OF APPELLANT, BY CONVICTING APPELLANT, BECAUSE THIS

CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION."

{¶17} "IV. THE COURT OF COMMON PLEAS DID NOT HAVE SUBJECT

MATTER JURISDICTION OVER THE CRIMINAL TRIAL BECAUSE BLAKE RILEY

WAS UNDER EIGHTEEN YEARS OLD AT THE TIME OF THE ALLEGED OFFENSE

AND WAS NOT PROPERLY BOUND OVER FROM THE JUVENILE COURT."

Muskingum County, Case No. CT2012-0022 6

{¶18} "V. DEFENDANT'S JUVENILE COURT BINDOVER TO ADULT COURT

VIOLATED THE PRINCIPLES SET FORTH IN APPRENDI V. NEW JERSEY 530 U.S.

466 (2000), AND THUS VIOLATED HIS RIGHTS TO DUE PROCESS AND TO A

JURY TRIAL."

{¶19} "VI. THE COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT FAILED TO RECORD ALL THE PROCEEDINGS IN THIS CASE."

{¶20} "VII. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE

OF COUNSEL DUE TO NUMEROUS ERRORS AND OMISSIONS WHICH

PREJUDICED APPELLANT'S TRIAL."

1.

{¶21 } Appellant argues in his first assignment of error the trial court erred in its

jury instructions with respect to accomplice testimony. We disagree.

{¶22} Ohio Revised Code Section 2923.03(D) provides:

if an alleged accomplice of the defendant testifies against the

defendant in a case in which the defendant is charged with

complicity in the commission of or an attempt to commit an

offense, an attempt to commit an offense, or an offense, the court,

when it charges the jury, shall state substantially the following:

"The testimony, of an accomplice does not become inadmissible

because of his complicity, moral turpitude, or self-interest, but the

admitted or claimed complicity of a witness may affect his

credibility and make his testimony subject to grave suspicion, and

require that it be weighed with great caution.

Muskingum County, Case No. CT2012-0022 7

"It is for you, as jurors, in the light of all the facts presented to you

from the witness stand, to evaluate such testimony and to

determine its quality and worth or its lack of quality and worth."

{123} In this case, no instruction on accomplice testimony was given.

Appellant's trial counsel did not request an instruction nor object to the instructions as

given, and appellant concedes he has therefore waived all but plain error. Pursuant to

Crim.R. 52(B), "plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court." The rule places several

limitations on a reviewing court's determination to correct an error despite the absence

of timely objection at trial: (1) "there must be an error, i.e., a deviation from a legal

rule," (2) "the error must be plain," that is, an error that constitutes "an `obvious' defect

in the trial proceedings," and (3) the error must have affected "substantial rights" such

that "the trial court's error must have affected the outcome of the trial." State v. Dunn,

5th Dist. No. 2008-CA-00137, 2009-Ohio-1 688, citing State v. Morales, 10 Dist. Nos.

03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 1.9 (citation omitted). The decision to

correct a plain error is discretionary and should be made "with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of

justice." Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus.

{¶24} In determining whether the trial court committed plain error by failing to

give the jury an accomplice instruction under R.C. 2923.03, an appellate court

generally examines several specific factors. See, State v. Simpson, 9th Dist. No.

25363, 2011-Ohio-2771, ¶ 19. In State v. Davis, the Ninth District Court of Appeals

Muskingum County, Case No. CT2012-0022 8

articulated a number of factors to review when the trial court fails to give an instruction

on accomplice testimony in the absence of a request to do so.

When determining whether the trial court committed plain

error by failing to comply with R.C. 2923.03(D), this Court

examines several factors. We look to the record to

determine the scope of cross-examination of the

accomplice that was permitted by the trial court.* **

Further, we review whether the details of the accomplice's

plea agreement were presented to the jury and whether the

jury instructions that were actually given contain much of

the substance of the instructions mandated by R.C.

2923.03(D). Finally, we examine whether the accomplice's

testimony was favorable to the defendant, justifying

defense counsel's failure to request the required instruction

as a tactical decision. * * *. [Internal citations omittedl.

State v. Davis, Ninth Dist. No. 22395, 2005-Ohio-4083, ¶

16.

{¶25} We find no plain error with regard to the testimony of Barlow and Hutton.

The scope of cross examination of both was extensive and without constraint by the

trial court. The jury was told the lengths of their sentences due to their involvement in

this crime. The jury instructions, as in Davis, contained only the standard language

about witness credibiiity. Barlow and Hutton's testimony was also unfavorable to

appellant: both put him squarely in the midst of both aggravated robberies, suggesting

Muskingum County, Case No. CT2012-0022 9

the iocale, in the residence, holding a shotgun to the Orndorffs and carrying out

firearms and other property. However, we find this case distinguishable from Davis,

supra, and more akin to State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087,

817N.E.2d 845, ¶ 83, because the evidence of appellant's involvement in the home

invasion did not rest solely upon the accomplices' testimony. Other evidence of

appellant's involvement existed and therefore the trial court's failure to give the

accomplice jury instruction was not plain error.

{¶26} With regard to the testimony of Brittany Funk, we find no plain error.

Appellant has not explained how Brittany Funk was an accomplice. She was not

charged as a result of her involvement. Generally, "[a]t minimum, an accomplice must

be someone who has been indicted for the crime of complicity." State v. Smith, 9th

Dist. No. 25650, 2012-Ohio-794, ¶ 22. Otherwise, an accomplice instruction may

become necessary only in certain "rare circumstances" where a person might have

been an accomplice, but was never indicted, such as a situation in which he or she

received immunity in exchange for his or her testimony. Id. Funk was never charged

as an accompiice and received no special treatment for her cooperation and

testimony. Funk testified she was unaware of any plans to rob the Orndorff home; and

denied any involvement in the crime. Appellant has not shown Funk was actually an

accomplice or that her status was such that this was one of the "rare circumstances"

where an accomplice instruction was warranted. See Id.

{¶27} Funk was not indicted for complicity, nor was any evidence presented to

show that she received any type of favorable treatment in exchange for testifying

against appellant. Therefore, the trial court was not required to give the cautionary

Muskingum County, Case No. CT2012-0022 10

instruction to the jury. State v. Howard, 5th Dist. No. 06CAA100075, 2007-®hio-3669,

¶ 60.

{¶28} The trial court did not commit plain error in failing to give an accomplice

instruction and appellant's first assignment of error is overruled.

I!.

{T29} In his second assignment of error, appellant argues his convictions for

kidnapping and the second count of aggravated burglary shouid have merged for

purposes of sentencing because they are allied offenses of similar import. We -

disagree.

{¶30} With respect to victims Larry and Becky Orndorff, appellant was indicted

upon, convicted of, and sentenced upon one count each of kidnapping pursuant to

R.C. 2905.01(A)(2). Appellant argues the trial court should have merged the second

count of aggravated. burglary pursuant to R.C. 2911.11(A)(2) (Count Four) for

purposes of sentencing.

{¶31 } R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be

construed to constitute two or more allied offenses of

similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be

convicted of oniy one.

(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in

two or more offenses of the same or similar kind committed

Muskingum County, Case No. CT2012-0022

separately or with a separate animus as to each, the

indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of

them.

11

{Iff32} In State v. Johnson, the Ohio Supreme Court modified the test for

determining whether offenses are allied offenses of similar import. 128 Ohio St.3d

1405, 2010-Ohio-6314. The Court directed us to look at the elements of the offenses

in question and determine whether or not it is possible to commit one offense and

commit the other with the same conduct. If the answer to such question is in the

affirmative, the court must then determine whether or not the offenses were committed

by the same conduct. If the answer to the above two questions is yes, then the

offenses are allied offenses of similar import and will be merged. If, however, the court

determines that commission of one offense will never result in the commission of the

other, or if there is a separate animus for each offense, then the offenses will not

merge according to Johnson, supra.

{¶33} Count Four, aggravated burglary pursuant to R.C. 2911.11(A)(2), states

in pertinent part, "No person, by force, stealth, or deception, shall trespass in an

occupied structure or in a separately secured or separately occupied portion of an

occupied structure, when another person other than an accomplice of the offender is

present, with purpose to commit in the structure or in the separately secured or

separately occupied portion of the structure any criminal offense, if * **[t]he offender

has a deadly weapon or dangerous ordnance on or about the offender's person or

under the offender's control." Appellant was also convicted of one count of kidnapping

Muskingum County, Case No. CT2012-0022 12

pursuant to R.C. 2905.01(A)(2), which states, "No person, by force, threat, or

deception * * * shall remove another from the place where the other person is found or

restrain the liberty of the other person, for any of the following purposes: [t]o facilitate

the commission of any felony or flight thereafter."

{734} Under the facts of this case, the aggravated burglary was complete when

appellant entered the house for the second time. Upon awakening the Orndorffs and

subjecting them to prolonged restraint, and forcing Becky Orndorff into the garage at

gunpoint, the offense of kidnapping was committed with a separate animus. The

aggravated burglary offense is not an allied offense of kidnapping under these

circumstances.

{¶35} Appellant's second assignment of error is overruled.

911.

{T36} In his third assignment of error, appellant argues summarily his

convictions are against the manifest weight and sufficiency of the evidence. We

disagree.

{¶37} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the

syllabus, in which the Ohio Supreme Court held, "An appellate court's function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

Muskingum County, Case No. CT2012-0022 13

convince the average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential eiements of the

crime proven beyond a reasonable doubt."

{¶38} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the "thirteenth juror," and after "reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered." State v. Thompkins, supra,

78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of

the evidence and ordering a new trial should be reserved for only the "exceptional

case in which the evidence weighs heavily against the conviction." Id.

{^j39} Appellant was convicted upon one count of aggravated burglary, one

count of theft of firearms, and one count of theft in an amount greater than $1000 and

less than $7500 related to the first entrance into the home on December 12, 2008. He

was convicted of one count of aggravated burglary, one count of theft of firearms, one

count of theft in an amount greater than $7500 and less than $150,000 and two counts

of kidnapping for the return to the home in the early morning hours of December 13,

2008 and encounter with the Orndorffs.

{¶40} Appellee's evidence consisted of the testimony of the Orndorffs, who

were not able to specifically identify appellant but did provide a link to him because he

dated their granddaughter, had been in their home, and was aware they had ready

Muskingum County, Case No. CT2012-0022 14

cash and firearms. Hutton, Barlow, and Funk detailed the events the night of the

home invasion and appellant's involvement therein. DNA consistent with appellant

was found on a metal bar under the deck of the residence, found with a radio removed

from the Orndorffs' daughter's car. Appellant's girlfriend testified about his admissions

to her. The cell phone evidence implicated Barlow and Hutton, which led to appellant.

{¶41 } Appellant does not indicate which element of which offense' appellee

faiied to present sufficient evidence of. Nor does he point to any evidence in the

record that the jury lost its way. Appellant's convictions are not against the manifest

weight or sufficiency of the evidence and appellant's third assignment of error is

overruled.

IV.

{¶42} in his fourth assignment of error, appellant argues the common pleas

court lacked jurisdiction to indict, convict, and sentence him. We disagree.

{T43} It is undisputed appellant was age 17 at the time of the offense

Pursuant to R.C. 2152.10(A)(2)(b), appellant was subject to mandatory transfer. "A

chiid who is alleged to be a delinquent child is eligible for mandatory transfer and shall

be transferred as provided in section 2152.12 of the Revised Code in any of the

following circumstances: The child is charged with a category two offense, other than

a violation of section 2905.01 of the Revised Code, the child was sixteen years of age

or older at the time of the commission of the act charged, and either or both of the

following apply: The child is alleged to have had a firearm on or about the child's

person or under the child's control while committing the act charged and to have

displayed the firearm, brandished the firearm, indicated possession of the firearm, or

Muskingum County, Case No. CT2012-0022 15

used the firearm to facilitate the commission of the act charged." Appellant was

charged with a number of Category Two offenses pursuant to R.C. 2152.02(CC)(1),

including aggravated burglary and kidnapping.

{¶44} Appellant argues, though, the juvenile court failed to. consider

amenabiiity factors and failed to order a mental health eva.luation. We find no

authority for such requirement for mandatory transfers, nor does appellant offer any.

{¶45} Appellant also argues the juvenile complaint was improper because it

does not state where the offense took place. It is well established, though, that failure

to object or otherwise raise venue issues in a juvenile complaint waives the matter on

appeal. See, e.g., State v. Loucks, 28 Ohio App.2d 77, 82, 274 N.E.2d 773 (4th

Jist.1971).

{¶46} Appellant's fourth assignment of error is overruled.

v

{T47} In his fifth assignment of error, appellant argues Ohio's juvenile transfer

statute violates the Sixth Amendment right to trial by jury as set forth in Apprendi v.

New Jersey, 530 U.S. 466 (2000). We disagree.

{¶48} In Apprendi v. New Jersey, the United State Supreme Court determined

that other than the fact of a prior conviction, any fact which increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury and

proven beyond a reasonable doubt. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000). Appellant apparently argues Ohio's juvenile bindover procedure violates

Apprendi because juvenile bindover proceedings should be held to a reasonable-

doubt standard.

Muskingum County, Case No. CT2012-0022 16

{¶49} We reject appellant's argument as a misunderstanding of Ohio criminal

procedure. The juvenile bindover procedure is analogous to the adult preliminary

hearing: both evaluate probable cause, neither is a determination of a defendant's

guilty beyond a reasonable doubt. Appellee points out that Juv.R. 27(A) and R.C.

2151.35(A) require the juvenile division to determine cases without a jury, but this was

a case of mandatory transfer to the (adult) Court of Common Pieas and the matter

was, in fact, tried to a jury.

{¶50} Appellant's fifth assignment of error is overruled.

Vi.

{151 } In his sixth assignment of error, appellant argues his conviction must be

reversed because bench conferences and other colloquy between counsel and the

court was not recorded. We disagree.

{152} Appellant failed to object or ask that sidebar discussions be recorded

and therefore waived the issue. State v. Drummond, 1 11 Ohio St.3d 14, 2006-®hio-

5084, 854 N.E.2d 1038, 7 134. We will not reverse where an appellant failed to object

and fails to demonstrate material prejudice. Ed. Nothing in the record supports

appellant's speculationthe sidebar discussions dealt with matters relevant to appellate

review. See, id.

{¶53} Appellant's sixth assignment of error is overruled.

Vli.

{¶'54} In his seventh assignment of error, appellant asserts he received

ineffective assistance of trial counsel. We disagree.

Muskingum County, Case No. CT2012-0022 17

{%55} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, "a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy."' Id. at 689, citing Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158 (1955).

{¶56} "There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way." Strickland, 466 U.S. at 689. The question is whether counsel acted

"outside the wide range of professionally competent assistance." Id. at 690.

{¶57} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this "actual prejudice"

prong, the defendant must show that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694.

{T58} Appellant summarily asserts trial counsel made the following strategic

errors: he failed to object to use of photographs of a shoe and to investigate shoe

sizes of witnesses; he didn't effectively cross-examine the accomplices on their plea

agreements or seek appropriate accomplice jury instructions, and finally he stipuiated

to the testimony of a forensic witness.

Muskingum County, Case No. Cl"2012-0022 18

{759} Each of the decisions cited by appellant, with the exception of trial

counsel's failure to seek accomplice jury instructions, constitutes a matter of trial

strategy, for which we generally afford counsel a broad range of deference. Tactical

or strategic trial decisions, even if ultimately unsuccessful, do not generally constitute

ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965

(1995).

{¶60} Counsel's failure to seek an accomplice instruction was arguably

ineffective under the first prong of Strickland, supra, but appellant has not even

attempted to make an argument under the second prong, and therefore fails to show

the result of the proceeding would have been different had an accomplice instruction

been given. As we have stated infra, appellant's convictions were not against the

manifest weight of the evidence. We are unable to find appellant suffered actual

prejudice as a result of counsel's failure to seek an accomplice jury instruction.

{T6 "s } Appeilant's sevent h assignment of error is therefore overruled.

Muskingum County, Case No. CT 2012=0022 19

{162} Having overruled appeiiant's seven assignments of error, the judgment

of the Muskingum County Court of Common Pleas is therefore affirmed.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.

HON. PATRICIA A. DELANEY

aHON. VVILI^IAM S. H® AI\I

•^,,. r^

HON. SHEIL6 G. FARMER

PAD:kgb

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT PILDFIFT'f-i DISTFtiCCOURT OF APPE,

STATE OF OHIO MAR,22 2013

Plaintiff-Appellee

-vs-

BLAKE A. RILEY

L MUSKINGf^^^^ 00UN`I'Y, OHIOTOPP A, 510KLEm OLEBK

JUDGMENT ENTRY

Case No. CT2012-0022Defendant-Appeliant

For the reasons stated in our accompanying Opinion on file, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY

- - - - --- aHON. WILLIAM B. H AN

ON. SHEI"wA G. FARMER