IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, CASE NO.: vs. On Appeal from the Union County Court of Appeals, Third Appellate District KEVIN GILLMAN, Court of Appeals Defendant-Appellant. Case No PLAINTIFF-APPELLEE, STATE OF OHIO'S MEMORANDUM IN OPPOSITION TO SUPREME COURT JURISDICTION Kevin Gillman # R.C.I. P.O. Box 7010 Chillicothe, Ohio Defendant-Appellant, Pro Se Melissa A. Chase ( ) Assistant Prosecuting Attorney Union County, Ohio 221 West Fifth Street, Suite 333 Marysville, Ohio Telephone No.: (937) Facsimile No.: (937) Counsel for Plaintiff-Appellee, State of Ohio CLERK OF COURT SUPREME GOURT OF OHIO

2 STATEMENT OF FACTS AND THE CASE The Defendant-Appellant, Kevin E. Gillman, was a resident of Bellefontaine, Logan County, Ohio (Transcript at pp. 86). On September 28, 2006, the Defendant-Appellant, along with his sister, Marsha L. Siebeneck, travelled from Bellefontaine, Ohio to the Wal-Mart Store in Marysville, Ohio located on Coleman's Crossing Blvd. in the City of Marysville, Union County, Ohio (Transcript at pp. 73). The Defendant-Appellant and his sister entered the Wal-Mart store separately. Video surveillance at the Marysville Wal-Mart store captured the image of the Defendant-Appellant entering the store from the general merchandise entrance on September 28, 2006 at 6:45 P.M. (Transcript at pps ). His sister, Marsha L. Siebeneck, walked into the store at approximately the same time; however, she entered through the grocery entrance to the store (Transcript at pp. 49). Marsha L. Siebeneck obtained a shopping cart after she entered the store and met the Defendant-Appellant in the main aisle of the store (Transcript at pps ). Approximately eighteen minutes after the couple entered the store, the Defendant- Appellant and his sister traveled to the electronics aisle in the Marysville Wal-Mart store at 7:03 P.M. (Transcript at pp. 59). Thereafter, the Defendant-Appellant began looking at glass display case where the laptop computers were stored (Transcript at pp. 52). At one point while customers were walking up and down the electronics aisle looking at merchandise, the Defendant-Appellant and his sister moved their shopping cart into position by the glass laptop case in order to hide the movements of the Defendant-Appellant from the shoppers (Transcript at pp. 52). The Defendant-Appellant knelt down in front of the glass laptop case and began "messing with the door" to the case (Transcript at pp. 52). In other words, the Defendant-Appellant attempted to shift the locked glass doors so as to remove them from the 1

3 track (Transcript at pp. 52). The Defendant-Appellant used enough force that the glass doors actually bowed under the pressure as seen in the video surveillance (Transcript at pp. 53). At approximately 7:05 P.M., the Defendant-Appellant and his sister left the electronics aisle and travelled to the aisle where plastic storage containers were displayed and stored (Transcript at pp. 53). The Defendant-Appellant examined and rejected several storage containers before deciding on a yellow Rubbermaid tote with a silver or grey storage lid (Transcript at pp. 53). The Defendant-Appellant placed the storage container and lid in the cart and the couple then travelled back to the electronics aisle where they had previously been loitering (Transcript at pp. 53). The couple arrived back on the electronics aisle at 7:08 P.M. (State's Exhibit 1). Once they returned to the electronics aisle, Marsha L. Siebeneck placed the shopping cart in the same position in front of the glass laptop case she had previously used to hide the Defendant-Appellant's movements. The Defendant-Appellant once again knelt in front of the laptop case and attempted to move the locked glass doors out of their track (Transcript at pps ). The couple walked away from the electronics aisle at approximately 7:15 P.M., leaving their shopping cart with the Rubbermaid tote and lid still positioned in front of the laptop display case (Transcript at pp. 54). The couple returned a few minutes later pushing a second shopping cart with merchandise in the basket (Transcript at pp. 54). Marsha L. Siebeneck placed the second shopping cart to the right of the laptop display case, leaving just enough room so that the Defendant-Appellant was able to kneel in front of the laptop case. His movements were then blocked on each side by a shopping cart (Transcript at pp. 54). The Defendant-Appellant knelt once again in front of the laptop display case and forcibly moved the glass doors (Transcript at pp. 54, State's Exhibit 1). At approximately 2

4 7:38 P.M., the Defendant-Appellant forcibly moved the glass doors out of the track on the laptop display case and pulled them away from the case (State's Exhibit 1). The Defendant- Appellant leaned the glass doors back against the display cabinet and then he and his sister walked away from the electronics aisle (State's Exhibit 1). A few minutes after the couple left the aisle, Jack Carpenter, a Wal-Mart employee working in the electronics department, walked down the aisle and observed the unattended shopping carts (Transcript at pp. 54, State's Exhibit 1). Mr. Carpenter took the unattended shopping carts back to the store's main aisle (Transcript at pps. 54). Video surveillance showed that the couple returned to the electronics aisle several minutes later, pushing their original shopping cart with the Rubbermaid tote and lid (State's Exhibit 1). Marsha L. Siebeneck positioned the shopping cart back in front of the laptop display case while the Defendant-Appellant knelt and removed the glass doors from the display case (Transcript at pp. 54). Beginning at approximately 7:44 P.M., the Defendant- Appellant then removed five laptop computers from the display case individually and placed each of them in the yellow Rubbermaid storage tote (Transcript at pps , 60). His sister stood in front of the shopping cart and held the lid to the tote while the Defendant-Appellant placed all five laptop boxes in the container (Transcript at pp. 55). The couple departed from the electronics aisle after they secured the fifth laptop computer in the storage container (Transcript at pp. 55). The Defendant-Appellant and his sister were present on the electronics aisle for approximately forty-five minutes while the Defendant-Appellant removed each of the five laptop computers (Transcript at pp. 55). After leaving the electronics aisle with the laptop computers in the Rubbermaid tote, video surveillance revealed that the couple returned to the storage container aisle where they 3

5 obtained the tote (Transcript at pp. 55). At approximately 8:11 P.M., the Defendant- Appellant took one of the laptop computer boxes and placed it on the shelf where the Rubbermaid storage containers were located in the store (Transcript at pps ). This was a location where a store employee discovered an empty laptop box (Transcript at pp. 55). The next time the Defendant-Appellant and his sister appeared on the video surveillance they were pushing a shopping cart containing a box with a purported unassembled office chair inside and some pink plastic hangers (Transcript at pp. 56). The Defendant-Appellant and his sister checked out at the cash register and he purchased the unassembled office chair box and the pink hangers (Transcript at pp. 56). The cashier walked around to the Defendant-Appellant's shopping cart and scanned the UPC code for the office chair with a hand-held scanner; however, she never examined the box (Transcript at pps. 56, 68, State's Exhibit 1). The Defendant-Appellant and his sister left the store at approximately 8:17 P.M., immediately after paying for the office chair and the hangers (Transcript at pps. 56, 60). Approximately ninety minutes later after the Defendant-Appellant and his sister departed the Wal-Mart store, employees discovered four empty laptop boxes situated in various locations in the general merchandise section of the store (Transcript at pp. 46). A fifth empty laptop box was also recovered in the store that next day as well (Transcript at pp. 66). The store employees also found the parts of an unassembled office chair inside the Rubbermaid tote that the Defendant-Appellant used to conceal the laptop computers (Transcript at pp. 62). The contents of the storage container, consisting of parts of a disassembled office chair in a plastic bag, were discovered in the same area where the empty 4

6 laptop boxes were found (Transcript at pps ). An employee called the police after these discoveries were made. Officers from the Marysville Division of Police came to the Wal-Mart store in response to the emergency call from the employees. Detective Chad Seeburg processed the scene and took photographs of the laptop display case, the empty laptop boxes and the Rubbermaid tote with the unassembled chair parts (Transcript at pps ). Detective Seeburg also processed the glass doors on the laptop display case for latent fingerprints (Transcript at pp ). The fingerprints that were lifted by Detective Seeburg were sent to the Bureau of Criminal Identification and Investigation and examined by Robin Roggenbeck, a forensic scientist with the latent print division (Transcript at pps ). Ms. Roggenbeck identified five different latent print lifts belonging to the Defendant-Appellant (Transcript at pps ). Nine of the prints identified as the Defendant-Appellant's were located on the interior of the glass display case doors (Transcript at pp. 101). Timothy Stewart, the Market Asset Protection Manager, testified that no laptop computers were purchased or put in layaway for the store on September 28, 2006 (Transcript at pp. 57). On May 21, 2007, the Union County Court of Common Pleas Grand Jury returned a two count Indictment against the Defendant-Appellant, Kevin E. Gillman, charging him with one count of Theft in violation of Ohio Revised Code Section (A)(1), (B)(2), a felony of the fifth degree, and one count of Receiving Stolen Property in violation of Ohio Revised Code Section (A), (C), also a felony of the fifth degree (Indictment). A warrant for the arrest of the Defendant-Appellant was issued by the Union County Court of Common Pleas on May 21, 2007 (Warrant on Indictment). The arraignment in this case was scheduled 5

7 for June 4, 2007 at 1:30 P.M.; however, the Defendant-Appellant did not appear. The Defendant-Appellant was subsequently arrested pursuant to the Court's Warrant and he appeared for his arraignment on July 16, 2007 (Journal Entry filed on July 16, 2007). At the arraignment, the Defendant-Appellant entered a plea of "not guilty" to each count in the Indictment and requested legal counsel. The Defendant-Appellant was released on his own recognizance in this case; however, after the arraignment, he was transferred back to the Ross County Jail (Journal Entry filed on July 16, 2007). The Court set the Scheduling Conference in the case for August 21, 2007 at 9:30 A.M. The Appellee-State of Ohio filed its Bill of Particulars and Discovery in this matter on July 16, 2007 (Bill of Particulars and State's Discovery). The parties were unable to reach any resolution at the Scheduling Conference on August 21, 2007 and therefore, the Court set the case for a Jury Trial on October 5, 2007, beginning at 9:00 A.M. (Hearing Notice filed August 22, 2007). This matter proceeded to a Jury Trial on October 5, At the conclusion of all of the testimony and evidence presented by each party, the Jury deliberated for approximately nineteen minutes and returned a verdict of guilty on the charge of Theft, in violation of Ohio Revised Code Section (A)(1), (B)(2), a felony of the fifth degree (Verdict, filed on October 5, 2007). The Jury also found that the Defendant-Appellant was guilty of the offense of Receiving Stolen Property in violation of Ohio Revised Code Section (A), (C) (sic), a felony of the fifth degree (Verdict, filed on October 5, 2007). On January 11, 2008, the Defendant-Appellant filed a Notice of Appeal from the Journal Entry filed on December 27, 2007 to the Court of Appeals of the Third Appellate Judicial District of Ohio (Notice of Appeal, 1/11/08, Trial Court Record 75). Defendant-Appellant was appointed legal counsel 6

8 to prosecute his appeal. On appeal to the Third District, he claimed that the jury's verdicts were not supported by sufficient evidence (Appellant's Brief). The Defendant-Appellant and the State of Ohio each filed briefs in the appeal and the matter was set for oral argument. The Third District Court of Appeals filed its Opinion and Journal Entry on June 2, 2008 (Court of Appeals' Opinion and Journal Entry, dated June 2, 2008). The Third District Court of Appeals overruled the Defendant-Appellant's sole assignment of error and affirmed the judgment of the trial court (Court of Appeals' Opinion and Journal Entry, dated June 2, 2008). On June 30, 2008, the Defendant-Appellant filed an appeal of the Third District's decision to this Court along with a Memorandum in Support of Jurisdiction. EXPLANATION WHY THIS CASE IS NOT OF GREAT PUBLIC INTEREST AND DOES NOT PRESENT A SUBTANTIAL CONSTITUIONAL OUESTION This case, while purporting to involve a violation of the Defendant-Appellant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and a betrayal of the public trust, is, in actuality, the Defendant-Appellant's attempt to once again prosecute his appeal, this time in the Supreme Court of Ohio. It does not present a substantial constitutional question, nor does it present a question of great public interest. In a carefully reasoned decision, the Third District Court of Appeals addressed each issue raised in this Court and affirmed the Defendant-Appellant's conviction. Defendant-Appellant raises no new or novel issues in his Memorandum which require this Court's attention. The State of Ohio respectfully requests this court decline to accept jurisdiction. The Defendant-Appellant initially argues that he has been wrongfully convicted because of his physical proximity to the stolen laptop computers and that his wrongful 7

9 conviction is a matter of great public interest. The subject of the Defendant-Appellant's conviction was fully reviewed by the Third District Court of Appeals. In his brief, the Defendant-Appellant assigned as error the sufficiency of the evidence presented by the State of Ohio at the trial, specifically focusing on the State's use of circumstantial evidence to prove elements of the offenses. As is evident in the Opinion issued by the Third District Court of Appeals, the transcript and the exhibits introduced at the trial were reviewed in depth, particularly the video surveillance of the Defendant-Appellant and his sister inside the Marysville Super Wal-Mart store, State's Exhibit 1. The parties were also given the opportunity to orally argue the case in the Third District Court of Appeals before they issued their opinion. The Defendant-Appellant availed himself of all of these opportunities; however, he was unsuccessful in persuading the Justices that his convictions for Theft and Receiving Stolen Property were not supported by sufficient evidence. In an effort to raise the same issue again in this Court, the Defendant-Appellant states that there is a substantial constitutional question in this case claiming that the decisions of the jury and the Third District Court of Appeals violate his due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. In analyzing his argument, it is clear that the Defendant-Appellant is once again raising the issue that his conviction was not based upon sufficient evidence. The Defendant-Appellant believes that direct evidence or testimony is superior to, or has more probative value, than circumstantial evidence. He argues that for the Third District Court of Appeals rendering an opinion based upon, as the Defendant-Appellant perceives, largely circumstantial evidence "manipulates the reasoning of Due Process." This is not a constitutional issue but another attempt to attack the Defendant- Appellant's conviction based upon the State's use of circumstantial evidence in its case in 8

10 chief. As previously stated, this is an issue that has already been fully evaluated and reviewed by the Third District Court of Appeals and is not a constitutional issue by nature. The State therefore submits that there is no necessity for review of this matter and that, in the absence of a showing of prejudice which presents a separate issue of public interest or constitutional significance, this Court should dismiss the appeal. ARGUMENT RESPSONSE TO APPELLANT'S PROPOSITION OF LAW NO. 1: The Jury's verdicts on the felony Theft and Receiving Stolen Property counts are supported by sufficient evidence. A defendant's guilt may be established by the State using real evidence, direct or testimonial evidence, circumstantial evidence, or any combination of these three classes of evidence. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph 4 of the syllabus. The Supreme Court of Ohio has previously held that there can be no bright-line distinction regarding the probative force of circumstantial and direct evidence. In State v. Lott (1990), 51 Ohio St. 3d 160, 167, 555 N.E. 2d 293, 302, "*** circumstantial evidence *** may also be more certain, satisfying or persuasive than direct evidence." The Court in State v. Nicely (1988), 39 Ohio St. 3d 147, 529 N.E.2d 1236, 1239 that "***circumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable ***" The Jenks Court also determined that "where the state relies on circumstantial evidence to prove an element of the offense, and where the jury is properly instructed on the standards for reasonable doubt, an additional instruction on circumstantial evidence is not required." Jenks, supra, at paragraph 6 of the syllabus. Further, the Court found that "once the jury is properly instructed as to the heavy burden the state bears under the "guilt beyond a reasonable doubt" 9

11 standard, the jury is then free to choose between competing constructions of the evidence." Id. at paragraph 6 of the syllabus. Appellate Courts have routinely upheld convictions in cases based at least in part on circumstantial evidence. In State v. Abdul-Rahman (2007) 2007 Ohio App. LEXIS 2217, the Appellate Court upheld the Defendant's convictions for breaking and entering, safecracking and theft when the case based largely on circumstantial evidence was challenged for sufficiency. The Defendant in the Abdul-Rahman case was an employee with a chain of automotive retail stores. After the Defendant's employment was terminated, three of the retail stores reported money missing from their safes. The testimony and circumstantial evidence at trial presented by the State was that all three stores were broken into in the hours after the Defendant was terminated from his employment; that none of the stores showed any signs of forced entry; that the Defendant was the only individual to possess keys to all three locations that were broken into; that the Defendant knew the location of the keys to the safes located in each store; and that the Defendant was seen at two of the three locations in the evening hours after his employment was terminated. The jury returned a verdict of guilty on nine counts in the indictment and the Defendant appealed his conviction on the basis of the sufficiency of the evidence. The Appellate Court upheld the Defendant's conviction based primarily on circumstantial evidence because "viewing the testimony and evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found the essential elements of the crimes of which appellant was convicted proven beyond a reasonable doubt." Id. at pp. 15. In the instant matter, the Defendant-Appellant argues that the State failed to present sufficient evidence to prove all of the elements necessary for the Defendant-Appellants theft 10

12 and receiving stolen property convictions. In essence, the Defendant-Appellant's argument is simply that because there was no direct or testimonial evidence that the laptop computers were hidden in the office chair box and secreted out of the Marysville Wal-Mart, his convictions are not supported by sufficient evidence. The Defendant-Appellant argues that the basis of the State's case is "really all circumstantial" and that this evidence is not sufficient to sustain his convictions. To support his argument, the Defendant-Appellant cites the case of State v. Kulig (1974), 37 Ohio St. 2d 157, 309 N.E.2d 897. As this Court is aware, the Kulig decision, as well as the other cases cited by the Defendant-Appellant, were overruled by the Supreme Court's decision in State v. Jenks, discussed above. Since 1991, Kulig and its progeny are no longer the law in the State of Ohio. To accept the Defendant-Appellant's argument that the case against him is "really all circumstantial" without question ignores the foundation of the State's case presented at trial. Specifically, the State presented video surveillance footage tracking the movements of the Defendant-Appellant and his sister, Marsha L. Siebeneck at various locations in the store and the physical evidence of the crime and its disguise found throughout the store. The State presented a combination of three different types of evidence at the Defendant-Appellant's trial. It presented direct or testimonial evidence in the form of video surveillance and eyewitness testimony which documented the Defendant-Appellant and his sister's movements throughout the Wal-Mart store. A description of the Defendant-Appellant and his sister's actions throughout the Wal-Mart store caught on video surveillance is listed in detail in the Appellee's Statement of Facts. The State presented video evidence that the Defendant-Appellant and his sister entered the Marysville Wal-Mart store at approximately 6:45 P.M. through two separate entrances. The Defendant-Appellant and his sister appeared 11

13 on the electronics aisle at approximately 7:03 P.M. At that time, the Defendant-Appellant knelt next to the laptop display case and made his first attempt to remove the glass doors on the case. The surveillance footage showed the Defendant-Appellant pulling so forcefully on the glass doors that he caused the doors to bow out under the pressure. The Defendant-Appellant and his sister left the electronics aisle and travelled to the storage container section in general merchandise. At that location, the Defendant-Appellant chose the yellow Rubbermaid tote with the grey or silver lid and placed it in the cart. This was also the location where the Defendant-Appellant later returned to store an empty laptop box. After selecting the yellow storage container and grey lid, the Defendant-Appellant and his sister returned to the electronics aisle. For another half hour, the Defendant-Appellant continued to work at removing the glass doors. Finally, he was able to remove the doors from the cabinet's track. Thereafter, the Defendant-Appellant placed five laptop computers in the Rubbermaid storage tote and covered them with the tote's lid. The Defendant-Appellant left the electronics aisle immediately thereafter. Later in the video surveillance, the Defendant- Appellant returns to the plastic container storage area and places a laptop box on the shelf. The final video surveillance shows the Defendant-Appellant at the cash register purchasing an unassembled office chair in a box and some pink plastic hangers. The Defendant-Appellant and his sister then left the store at approximately 8:17 P.M. pushing his cart containing the office chair box and the plastic hangers. The State presented testimonial evidence from Timothy Stewart, the Loss Prevention Manager, that store employees discovered four empty laptop boxes located in the general merchandise portion of the Wal-Mart store. A fifth empty laptop box was located in the 12

14 general merchandise section of the store the next day. Mr. Stewart also testified that store employees discovered a yellow Rubbermaid tote and grey lid located in the general merchandise section containing the contents of an office chair box. Detective Seeburg testified concerning the photographs of the evidence that he had taken and described the latent fingerprints that he was able to lift from the exterior and the interior of the glass panels of the laptop display case which matched the Defendant-Appellant's fingerprints. The State also presented direct evidence from Robin Roggenbeck, a forensic scientist with the Bureau of Criminal Identification and Investigation. Ms. Roggenbeck testified that five sets of the latent prints submitted to her for analysis belonged to the Defendant- Appellant. In fact, nine of the prints identified as belonging to the Defendant-Appellant were found on the interior of the glass doors of the laptop display case. Despite all of this real, direct and testimonial evidence, the Defendant-Appellant argues that there is no evidence that he left the Wal-Mart store with the five laptop computers secreted in his office chair box. The direct and circumstantial evidence presented by the State in this case overwhelmingly refutes that claim. The Defendant-Appellant and his sister spent approximately forty-five minutes in the electronics aisle during which time the Defendant- Appellant repeatedly attempted to remove the glass doors from the display case. When he was successful in removing the doors, the Defendant-Appellant took five laptop computers from the display case and placed them in the yellow Rubbermaid tote with the grey lid. This same distinctive "yellow Rubbermaid tote with the grey lid" is later discovered by store employees containing the packaged office chair parts. These packaged chair parts are only discovered by store employees after the Defendant-Appellant had purchased an "office chair" and left the store. The store employees discovered five empty laptop boxes in the general 13

15 merchandise section; however, these empty laptop boxes are only found after the Defendant- Appellant has left the store. Similar to the Appellant in the Abdul-Rahman case, there is only one logical perpetrator- and that individual is the Defendant-Appellant. The Defendant-Appellant and his sister were in the store approximately an hour and a half be ore the store employees discovered the empty boxes and the storage container. The video surveillance captured the image of the Defendant-Appellant loading the five laptop boxes into the yellow Rubbermaid storage container. The five laptop computers were never purchased or put into layaway on September 28, The video surveillance also shows the Defendant-Appellant dumping one of the empty laptop computer boxes on the shelf in the general merchandise area. Finally, the Defendant-Appellant purchased an office chair; however, the parts of an office chair are discovered by store employees in the yellow storage container after the Defendant-Appellant has left the store. To give credence to the Defendant-Appellant's argument would require the Court to accept the theory that some other individual or individuals stole the five laptops once the Defendant-Appellant worked so hard to remove them from the display case. In addition, the Court would have to accept that in an unrelated action some individual decided to remove the parts of an unassembled chair and steal the box. The only feasible theory of the case is that the Defendant-Appellant and his sister emptied the chair box, placed the five laptop computers in the box, purchased the chair box and secreted the computers out of the store. Viewing all of the evidence in a light most favorable to the prosecution, the rational trier of fact not only could have found, but did find the essential elements of the crime proven beyond a reasonable doubt. Furthermore it took the jury nineteen minutes to so find. 14

16 CONCLUSION For the reasons set forth in more detail in the Plaintiff-Appellee State of Ohio's Memorandum in Opposition, the Plaintiff-Appellee respectfully requests that the Court overrule the Defendant-Appellant's Motion for Jurisdiction. Respectfully Submitted, DAVID W. PHILLIPS, III UNION CO TY PROS UF'ING ATTORNEY Melissa A. Chase ( ) Assistant Prosecuting Attorney 221 West Fifth Street, Suite 333 Marysville, Ohio Telephone No.: (937) Facsimile No.: (937) CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Memorandum in Opposition to Jurisdiction of the Plaintiff-Appellee, State of Ohio, was served upon Kevin E. Gilman, , the Defendant-Appellant, at his address of R.C.I., P.O. Box 7010, Chillicothe, Ohio 45601by ordinary U.S. Mail, postage prepaid this 30"day of July, Respectfully Submitted, DAVID W. PHILLIPS, III UNION COUNTY PROSECUT Melissa A. Chase ( ) Assistant Prosecuting Attorney 221 West Fifth Street, Suite 333 Marysville, Ohio Telephone No.: (937) Facsimile No.: (937)