[Cite as State v. Phillips, 2014-Ohio-3670.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 16-13-09 

 v. 

ROGER A. B. PHILLIPS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Wyandot County Common Pleas Court 

Trial Court No. 12-CR-0050 

Judgment Affirmed 

Date of Decision: August 25, 2014 

 

APPEARANCES: 

 

Shane M. Leuthold for Appellant 

Jonathan K. Miller for Appellee 

 
Case No. 16-13-09 

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WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Roger Adam Blake Phillips (“Phillips”) brings 

this appeal from the judgment of the Common Pleas Court of Wyandot County, 

Ohio, sentencing him to eight years in prison after a jury convicted him of 

aggravated burglary, a felony of the first degree in violation of R.C. 

2911.11(A)(1). Phillips challenges his conviction based on sufficiency and 

manifest weight of the evidence. He further asserts that his trial counsel was 

ineffective. He also argues that the trial court erred by denying his motions for 

acquittal and for a new trial, as well as by imposing a sentence that was more 

severe than the sentences imposed on his accomplices. For the reasons that 

follow, we affirm the trial court’s judgment. 

Statement of Facts 

{¶2} On April 4, 2012, in Carey, Ohio, Mrs. Cleo Turnbell (“Mrs. 

Turnbell”), a seventy-nine-year-old widow, who lived alone on Crabapple Drive, 

was awakened in the early morning hours by the sound of something falling in her 

house. When she got up to check on the origin of the noise, she discovered a man 

with a flashlight in her utility room. She started screaming and the intruder 

appeared before her. He was wearing a dark hooded sweatshirt, a face mask, and 

gloves, and he was carrying a gun. The intruder asked Mrs. Turnbell for money 

and immediately after obtaining it, he fled through the door leading to her garage. 
Case No. 16-13-09 

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Mrs. Turnbell then realized that the intruder had broken in through her garage 

door, took the money from her car, and then entered the house through the door 

leading to the house from the garage. She also noticed that, in addition to the 

garage door, her front door had been opened from the inside and left wide open. 

Other rooms in her house bore signs of an intrusion and money was missing from 

her desk. She called 911 and reported the incident. 

{¶3} During an investigation following the incident, the police recovered 

physical evidence, including an empty Red Bull can, a pair of rubber gloves, and a 

shoe impression on a white bank envelope from which the money was taken. The 

scene was photographed. The investigation revealed that more than one intruder 

was in Mrs. Turnbell’s residence on the morning of April 4, 2012. Initially, two 

individuals were charged for their involvement in this crime, Brendan Hoffman 

(“Hoffman”) and Jeremy Ritter (“Ritter”). The two admitted that they were 

responsible for the offense and they revealed that they had one more accomplice. 

The two men implicated Phillips in the crime and agreed to testify against him in 

exchange for more beneficial sentences for them. 

{¶4} An indictment by the grand jury against Phillips was filed on August 

28, 2012, charging him with aggravated burglary, a felony of the first degree in 

violation of R.C. 2911.11(A)(1). (R. at 1.) Phillips was arrested on the same day 

and arraigned on August 29, 2012. He pled not guilty and received the assistance 
Case No. 16-13-09 

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of an appointed attorney, Todd A. Workman. (R. at 9.) On January 22, 2013, 

attorney Merle R. Dech Jr. entered his appearance as counsel for Phillips, 

substituting for attorney Workman. (R. at 25.) The matter went to trial by jury. 

The testimony relevant to the issues raised by Phillips on appeal can be 

summarized as follows. 

State’s Case in Chief

Mrs. Turnbell 

{¶5} Mrs. Turnbell testified about her recollection of the night in question. 

She recalled that as she walked into her kitchen to investigate the source of the 

noise in her house, she realized that someone was in there and she started 

screaming, “What do you want? What are you doing in my house?” (Trial Tr. at 

111.) She then described the following, 

And so here comes this person all masked, hooded mask. He walked 

right past my refrigerator and appeared and said, “Put your hands in 

the air.” I said, “I will, I will, I will.” I started screaming, begging, 

“Please don’t hurt me. Please don’t hurt me.” I saw he had a gun in 

his left hand. 

And he said, “I’m not going to hurt you.” He said, “Just tell me”—

he said, “All I want is your money. Just tell me where you keep it.” 

And I said, “Well, all I have is what’s in my wallet.” Little did I 

know they were already in the two bedrooms and got what they 

wanted. And so I said, “Well, I’ll give you what’s in my wallet.” So 

he backed up, and we went right down—there is one step down into 

my family room. And the picture you saw was my purse hanging on 

the arm of my chair where I usually kept it. I got my wallet out, and 

it was dark. I couldn’t see what I was giving him, because I had 
Case No. 16-13-09 

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night lights on. And he assured me twice that he wasn’t going to 

hurt me; he just wanted my money. 

(Id. at 112.) Mrs. Turnbell then testified that the offender kept the gun in view so 

that she could see it. (Id. at 113.) When asked by the prosecutor whether she felt 

threatened by it, she responded, “Well, yes. That’s why I was begging for my 

life.” (Id.) She stated that “[b]y this time, [she] didn’t see a flashlight. [She] just 

saw the gun.” (Id. at 130.) She described the gun as black but not a revolver type. 

(Id. at 113-115.) 

{¶6} Mrs. Turnbell only saw one intruder, who was of small build and 

approximately her height, which was about 5 feet and 6 inches. (Id. at 115, 131, 

136.) She thought the individual’s weight was about “155 or something,” but she 

admitted that she initially had indicated that the intruder weighed about 180 

pounds. (Id. at 115, 131-132, 135.) Referring to the discrepancy, Mrs. Turnbell 

explained, “I said he was small, small built [sic]. I knew he wasn’t a big person.” 

(Id. at 115.) Mrs. Turnbell testified that the intruder was wearing a dark hooded 

sweatshirt, a mask that covered all of his face except for the eyes, and black 

gloves. (Id. at 115, 132.) The individual’s voice was young, but she did not 

recognize it. (Id. at 114, 130, 133, 135.) She admitted, however, that in her initial 

statement to the police, she had indicated that the intruder’s voice sounded like she 

had heard it before and she had suspected an individual called Dustin Dyer. (Id. at 

135-136.) 
Case No. 16-13-09 

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{¶7} Mrs. Turnbell testified that after she had given the offender the 

money, he left without physically harming her. (Id. at 114.) Although the intruder 

left through the door leading to her garage, she noticed that her front door had 

been unlocked and left standing open. (Id. at 106, 114, 133.) As Mrs. Turnbell 

was waiting for the police, she was looking out of her utility door glass, and in the 

driveway across the street, she saw a man with a hooded sweatshirt on, whose 

clothes resembled the individual she had seen in her house. (Id. at 125-126.) Mrs. 

Turnbell found a footprint on one of the empty bank envelopes left on the floor 

and she reported it to the police. (Id. at 119.) 

{¶8} Mrs. Turnbell testified that she had known Phillips through his 

parents. Phillips and his father had done her yard work in the past, but the most 

recent service by them was about four years before the burglary. (Id. at 136-137.) 

Jeremy Ritter 

{¶9} Ritter testified that he was incarcerated and was serving six years as a 

result of the burglary in Mrs. Turnbell’s house. (Id. at 145-146.) He also admitted 

to having prior felony convictions for trafficking in drugs. (Id. at 162.) Ritter 

testified that he had been a friend of Phillips for a number of years. (Id. at 145.) 

He disclosed that he had agreed to testify against Phillips about his involvement in 

the crime in exchange for a reduced sentence for himself; but he denied trying to 

“frame” Phillips. (Id. at 162, 171.) 
Case No. 16-13-09 

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{¶10} Ritter testified that the burglary was Phillips’ idea and he first heard 

about it when he was drinking with Hoffman in Findlay. (Id. at 145-147.) 

According to Ritter, Phillips told them that there was a lot of money in Mrs. 

Turnbell’s residence and that he knew exactly where it was. (Id. at 151.) That 

same night, Hoffman and Ritter went to Ritter’s house, which was also on 

Crabapple Drive. (Id. at 147-148.) Phillips joined them and brought a book bag 

with two guns in it. (Id. at 149.) Ritter testified that one of the guns was a black 

BB gun, which looked like a semi-automatic weapon, and the other one, Ritter was 

“pretty sure” was “a .38,” a revolver. (Id. at 149-150.) According to Ritter, 

Hoffman took the BB gun and Phillips took the other gun into the burglary, while 

Ritter did not have any weapons with him. (Id. at 150, 165-166, 171.) 

{¶11} They got ready at Ritter’s house by putting “gloves on and stuff,” 

and putting socks over their shoes in order to cover up the footprints. (Id. at 148, 

150-151.) Ritter had a mask on and a pair of Cleveland Brown winter gloves. (Id.

at 150.) He stated that one of the other men had latex gloves on but he did not 

remember whether it was Phillips or Hoffman. (Id. at 150.) He later said that 

Hoffman was the one wearing blue latex gloves. (Id. at 171.) 

{¶12} Ritter stayed in the garage during the burglary, while Phillips and 

Hoffman rifled through Mrs. Turnbell’s car and then went inside the house, with 

Hoffman leading the way. (Id. at 153-154, 156, 166-167.) After about five or ten 
Case No. 16-13-09 

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minutes, Ritter heard a scream and he heard someone yell “put your hands up.” 

(Id. at 157.) He also heard someone say, “Get the fuck down.” (Id. at 167.) He 

did not know whose voice he had heard. (Id. at 157.) He ran out of the garage 

door, and ran back to his house through backyards. (Id. at 157, 168.) He saw that 

Hoffman was already 30 to 40 feet in front of him, although Hoffman did not 

come out through the garage door with him. (Id. at 157-158.) He later clarified 

that Hoffman was 30 to 40 yards ahead of him. (Id. at 168.) Ritter was “pretty 

sure” that Hoffman had left the house through the front door. (Id. at 158.) Ritter 

testified that Hoffman “was stopped behind a shed,” hiding and waiting for him to 

catch up. (Id. at 169.) He caught up to Hoffman and the two men ran into Ritter’s 

house. (Id. at 158-159.) Ritter recalled that, as they were running by Snyder Park 

where Crabapple Drive ends, a black truck drove by. (Id. at 171-172.) Hoffman 

and Ritter waited at Ritter’s house for Phillips, who took longer to get back. (Id. 

at 158-159.) 

{¶13} Ritter testified that after the robbery, he disposed of evidence. (Id. at 

154-155, 161, 170.) He was nervous about getting caught and was worried that 

someone would recognize him, given his considerable height and weight. (Id. at 

159.) He later learned that someone had seen him running down his street at about 

5:00 or 5:30 that morning. (Id. at 159.) Ritter testified that he had met with 
Case No. 16-13-09 

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Phillips and Phillips’ father at some point to “talk about what happened,” meaning 

“the crime, itself.” (Id. at 160.) 

{¶14} Ritter admitted that after being arrested, he talked to Hoffman 

through the vents in Wyandot County Jail. (Id. at 172.) He acknowledged that he 

had not come forward to the police about the facts of this crime until about three 

or four months after his incarceration. (Id.) 

Brendan Hoffman 

{¶15} Brendan Hoffman testified that he was in prison for a number of 

charges, including six years for the burglary of Mrs. Turnbell’s residence. (Id. at 

209.) Hoffman admitted that he had entered into an agreement for a sentence 

recommendation so that sentences for all his convictions would run concurrently, 

which was very beneficial to him. (Id. at 230-231.) He came forward with 

evidence about this case to “try to make amends.” (Id. at 209.) 

{¶16} Hoffman’s testimony in many respects confirmed Ritter’s version of 

events. Some of their statements differed, however. Hoffman testified that it was 

all three of them who came up with the idea to burglarize Mrs. Turnbell’s home 

after “a source” told them that there was a large amount of money there. (Id. at 

210-211.) On cross-examination, Hoffman confirmed that he had previously told 

Lieutenant Frey that Phillips was the alleged source because he knew about the 

money being at Mrs. Turnbell’s residence after having mowed her grass. (Id. 215-
Case No. 16-13-09 

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216.) Similarly to Ritter, Hoffman testified that he was in Findlay with Ritter 

when the idea came up, and then went to Carey to Ritter’s house, where they 

“suited up and headed over to Snyder Park where Cleo Turnbell lives.” (Id. at 

211.) 

{¶17} Hoffman confirmed Ritter’s testimony regarding preparations at his 

garage and claimed that he wore a black zip up, socks over his shoes, a mask, and 

blue rubber gloves. (Id. at 212, 214.) He claimed that Phillips also wore latex 

gloves. (Id. at 222.) Hoffman denied having a gun or anything that could look 

like a gun, but confirmed that Phillips had a black BB gun. (Id. at 212, 219, 222.) 

He testified that the only gun he saw that night was the BB gun. (Id. at 229.) 

Hoffman testified that prior to the robbery, he had drunk from a Red Bull can, 

which he threw away, and which was later found by the police. (Id. at 214, 221-

222, 229-230.) He claimed that he had shared the drink with Phillips. (Id.) 

{¶18} Hoffman admitted that he and Phillips went into Mrs. Turnbell’s 

house, while Ritter stayed in the garage for a lookout. (Id. at 212.) He admitted 

that he had taken money from the bank envelope that was later found on the floor 

in Mrs. Turnbell’s house, and that it was his footprint that was found on the bank 

envelope. (Id. at 217, 221.) He heard someone in the house say “Freeze bitch,” 

and when he heard Mrs. Turnbell scream, he ran away through the front door, 

leaving it open, without checking what had happened. (Id. at 212-213, 220-221.) 
Case No. 16-13-09 

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He ran around the house and saw Ritter who had left through the back door and 

was already running too. (Id. at 227.) Hoffman passed Ritter and ran ahead of 

him, straight to Ritter’s house. (Id. at 213, 227-228.) He denied hiding in a shed 

on the way. (Id. at 228.) Hoffman remembered seeing a pickup truck on the way 

to Ritter’s house. (Id. at 229.) 

{¶19} Hoffman testified that after the crime, he spoke to Phillips about it, 

“but not much,” and they encouraged each other to keep this all secret.” (Id. at 

231-232.) Phillips told him, however, that he had talked about the crime to his 

father, who was a former police chief. (Id. at 232.) 

{¶20} Hoffman admitted that although the burglary at Mrs. Turnbell’s 

house was his first, he did “a couple more” afterwards. (Id. at 225.) He was 

apprehended by Lieutenant Frey on April 10, 2012. (Id. at 225.) He did not talk 

to Lieutenant Frey about Phillips at that time. (Id. at 226.) During the trial, 

Hoffman did not remember statements that he had made to Lieutenant Frey; he 

claimed that he had been “really high on drugs” at the time. (Id. at 225-226.) He 

did remember reading a statement in his discovery pack indicating that he had 

implicated another individual, Jeremy Walters, in the burglary. (Id. at 226.) He 

admitted that he did not mention Phillips until August 2012, after he “had taken 

care of other matters,” and before proceedings on this case against him started. 
Case No. 16-13-09 

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(Id. at 226-227.) Hoffman tried to keep Phillips’ name “out of this as long as [he] 

could.” (Id. at 232.) 

{¶21} Hoffman admitted that after his arrest, he talked to Ritter through the 

vents of Wyandot County Jail. (Id. at 223.) He also wrote a letter to Phillips from 

jail, in which he requested Phillips to provide him with drugs. (Id. at 224.) 

Phillips did not bring the drugs to him. (Id. at 224-225.) 

Kyle Shaw 

{¶22} Kyle Shaw (“Shaw”), who grew up next to Phillips “for like twenty 

years,” testified that he had sold Phillips a black BB gun, which looked like a 

semi-automatic pistol, sometime in the end of March or early April 2012. (Id. at 

176.) The sale occurred before the burglary at issue. (Id. at 177.) He admitted 

that he had stolen the BB gun from Walmart before selling it to Phillips. (Id. at 

178.) He also admitted that he had been convicted of grand theft motor vehicle 

and of arson in 2006. (Id. at 177.) He contended that he was telling the truth on 

the stand. (Id. at 178.) 

Deputy Christopher Verhoff 

{¶23} Deputy Christopher Verhoff (“Deputy Verhoff”), who was a Carey 

police officer at the time of the burglary, testified about his investigation of the 

incident and about the evidence obtained as a result. (Id. at 179.) He testified that 

after receiving a call about the burglary, he patrolled the general area prior to 
Case No. 16-13-09 

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going to Mrs. Turnbell’s house. (Id. at 197-198.) During that time, he came into 

contact with Richard Siefert (“Siefert”), who had flagged him down and 

volunteered information about what he had seen that morning. (Id. at 198.) Based 

on the information learned from Siefert, Deputy Verhoff developed one suspect, 

Ritter. (Id. at 199.) He asked Siefert to submit a written statement as to what he 

had seen that morning. (Id. at 208.) Siefert never submitted a statement in spite of 

Deputy Verhoff’s attempts to obtain one from him. (Id. at 208.) 

{¶24} After talking to Siefert, Deputy Verhoff went to Mrs. Turnbell’s 

residence, where he learned that the suspect was about 5’7” tall, approximately 

180 pounds, and had a gun in his left hand. (Id. at 200.) Mrs. Turnbell thought 

that she had heard the intruder’s voice before and she thought it belonged to one 

Dustin Dyer. (Id. at 202-203.) Deputy Verhoff remained in contact with Mrs. 

Turnbell after the initial investigation and he later learned that the weight of the 

suspect was more like 160 pounds rather than 180 pounds. (Id. at 205.) 

{¶25} Deputy Verhoff located “a couple foot tracks” leading away from the 

home. (Id. at 181.) It appeared to be two sets of footprints leading away from the 

garage door, “where the home was broken into,” into the grass behind the 

residence. (Id. at 181, 203.) He found several items, which were located along the 

path from Mrs. Turnbell’s residence to Ritter’s home, including a Red Bull can 

and blue latex gloves. (Id. at 182-185.) Deputy Verhoff testified that the two 
Case No. 16-13-09 

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rubber gloves were different in shape, one was “more extended” while the other 

one was more “crumpled up.” (Id. at 188.) No fingerprints or tool marks were 

found in the residence. (Id. at 190.) The DNA found on the Red Bull can and the 

gloves implicated Hoffman. (Id. at 195.) 

{¶26} There was a partial fingerprint on the Red Bull can, which did not 

match Phillips’ fingerprints. (Id. at 194.) Testifying about the shoe impression 

found on the bank envelope, Deputy Verhoff confirmed that it was consistent with 

the shoes and socks obtained from Hoffman. (Id. at 193.) Deputy Verhoff 

testified that Phillips’ home was located very close to Ritter’s home, stating, 

“possibly the backyards are catty-corner to each other.” (Id. at 185-186.) 

Motion for Acquittal

{¶27} At the end of the State’s case in chief, the defense moved for an 

acquittal pursuant to Crim.R. 29, asserting that the State had not put forth enough 

evidence to sustain a conviction. (Tr. at 242.) The trial court overruled the motion 

and the defense proceeded with its case in chief. 

Defendant’s Case in Chief

Richard Siefert 

{¶28} Siefert testified that he had known Phillips for over twenty years; he 

also knew Phillips’ father. (Id. at 246-247.) He lived by Phillips’ house in April 

2012. On April 4, 2012, Siefert came home from work at about 1:00 a.m. and 
Case No. 16-13-09 

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stayed up for the rest of the night. (Id. at 248.) He was outside of his house at 

around 6:00 in the morning, waiting to take his son to his brother-in-law. (Id. at 

247-249.) He testified that “[t]he windows had frosted that morning, so [he] went 

out and started the truck about 20 till 6.” (Id. at 249.) It was dark outside and he 

was standing about 75-80 feet away from Phillips’ house. (Id. at 250, 252-253.) 

Siefert testified, “I looked up because the lights are never on over there that early 

in the morning. That morning they were on.” (Id. at 249.) He saw Phillips 

“walking from the fridge to the kitchen table putting stuff on the table like he was 

getting something to eat that morning.” (Id. at 249-250.) This was at about 5:40 

in the morning. (Id. at 250.) He also saw Phillips’ mother and sister at the kitchen 

table. (Id.) Siefert further testified that as he was getting into his vehicle at about 

6:05 that morning, he saw Phillips on the front porch of his house letting the dogs 

out, and he waved to him. (Id. at 249-250.) 

{¶29} The defense admitted into evidence a photograph depicting Phillips’ 

house in the early morning hours, as seen from where Siefert was standing in the 

morning on April 4, 2012, which was a reasonable depiction of the lighting 

conditions on the date. (Id. at 251-253, 257; Def.’s Ex. A.) The photograph 

visibly showed Phillips standing in his kitchen, where the lights were on, 

illustrating for the jury Siefert’s ability to observe into Phillips’ kitchen without 

obstructions. (Id.) 
Case No. 16-13-09 

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{¶30} After observing the scene, Siefert left his home around 6:00 or 6:05 

a.m. and drove to his brother-in-law’s home. (Id. at 248, 253-254.) As he drove 

his ’91 Chevy pickup truck down Crabapple Drive, he saw two men “coming 

across the field from Crabapple and the old Snyder Park over to the new one.” (Id.

at 253-254.) Siefert recognized one of the men due to his considerable size, and 

identified him as Jeremy Ritter. (Id. at 254-255.) As he was driving “uptown,” he 

saw “all the police officers headed down toward the house and the area there.” 

(Id. at 254.) He dropped off his son and after he got back on the road about fifteen 

minutes later, he saw a police officer and told him about the two men he had seen, 

identifying one of them as Ritter. (Id. at 254-255.) He also told the officer that 

the two men “went right down to Jeremy’s house.” (Id. at 255.) He went home 

after that and saw Phillips and his father loading their pickup truck. (Id. at 255-

256.) He went to bed after that. (Id. at 256.) 

{¶31} Following the event, Siefert was contacted by the police with a 

request to fill out a report regarding his statements to the police officer on April 4, 

2012. (Id. at 256.) He responded, “I told you everything I know. I’ll think about 

filling it out.” (Id.) Siefert testified that when the police came again to ask about 

the report, “it made [him] mad, so [he] didn’t fill it out.” (Id. at 256.) 

{¶32} On cross-examination, Siefert stated that he had known about 

Phillips facing burglary charges since August 2012, when he had seen it in the 
Case No. 16-13-09 

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papers. (Id. at 260.) In spite of that, he never contacted the law enforcement to 

tell them that he had seen Phillips that morning in his house. (Id.) 

Roger Phillips 

{¶33} Defendant’s father, Roger Phillips (“Roger”), testified that he ran a 

lawn and snowplow service, in which he employed his son. (Id. at 262-263.) He 

admitted that he and his son had been to the Turnbell residence numerous times, 

but the last time they worked there was about five years prior to trial. (Id. at 270-

271, 273.) Roger confirmed that Phillips was friends with Hoffman and Ritter, but 

he denied ever speaking with either Hoffman or Ritter personally. (Id. at 270.) 

{¶34} Roger testified that on April 4, 2012, he got up shortly after five in 

the morning and woke up Phillips, who was sleeping in his bedroom, so they could 

get ready for work. (Id. at 263, 273.) His wife and his daughter, Tammy Risner, 

were up that morning when he woke up. (Id. at 272.) Roger testified that Phillips 

did not leave the house at all between waking up and packing the pickup truck to 

go to work. (Id. at 273.) Later that morning, Roger noticed multiple police 

cruisers “going up and down the side streets and [his] street.” (Id. at 263.) 

{¶35} Roger testified that in the morning of April 4, 2012, he and Phillips 

mowed all athletic fields at Hopewell Loudon School, which was about 17 acres. 

(Id. at 265-268.) Roger testified that it took approximately 35 to 40 minutes to get 

there from his house and it was an all-day job, which had to be started “as close to 
Case No. 16-13-09 

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7 o’clock as possible.” (Id.) Although he did not know for certain what time he 

got to Hopewell that morning, he stated that they always started there at around 

7:00. (Id. at 271.) An invoice depicting charges for mowing Hopewell Loudon 

School by Roger’s business that day was submitted into evidence. (Id. at 265-268; 

Ex. B.) On cross-examination, Roger acknowledged that the invoice submitted as 

Exhibit B did not have any times on it and that the times given by him in his 

testimony were approximate. (Id. at 269.) 

{¶36} Roger admitted that he never explained to law enforcement what his 

son did on April 4, 2012. (Id. at 270.) He did not prepare any written statements 

about the events of that day. (Id.) 

Brenda Phillips 

{¶37} Brenda Phillips (“Brenda”), defendant’s mother, testified that she 

assisted Roger in bookkeeping for his business and preached at a Christian radio 

station about once a month. (Id. at 274-275.) She had prepared the invoice that 

was submitted as Exhibit B. (Id. at 275-276.) Brenda testified that Phillips was 

about 5’10” tall and he weighed about 140 pounds. (Id. at 281.) He worked with 

his father every day in the lawn care service. (Id. at 280.) Brenda confirmed that 

Mrs. Turnbell had been a customer of her husband’s business in the past. (Id. at 

280.) 
Case No. 16-13-09 

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{¶38} Brenda remembered the morning of April 4, 2012, because there had 

been a lot of police around the area that morning. (Id. at 279.) She testified that 

on the night of April 3, 2012, her family had a “game night” and multiple people 

participated until late, including her niece Randy Guzman, her daughter Tammy, 

her daughter Chelsea, and Phillips, who was home that night. (Id. at 276-277.) 

Brenda testified that Phillips went to bed for a couple of hours, but she was still 

up, playing games when he got up a little after five in the morning. (Id. at 277.) 

She testified that Phillips came to the table and had his breakfast; he also let the 

dogs out that morning. (Id. at 278.) After that, he got dressed and went to load the 

equipment on the truck. (Id. at 279.) 

{¶39} On cross-examination, Brenda confirmed that there were about two 

hours during the night, when Phillips was not involved in the games. (Id. at 282.) 

She explained that he went to his bedroom and could not have left the house 

without her seeing him. (Id. at 283.) When asked by the State, Brenda confirmed 

that her husband was convicted of felony theft in January 2005. (Id. at 283.) 

State’s Rebuttal

{¶40} After Brenda’s testimony, the defense renewed its motion for 

acquittal, which was denied. The defense then rested and the State presented 

rebuttal witnesses. 
Case No. 16-13-09 

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Tamara J. Risner 

{¶41} Tamara J. Risner (“Tamara”), Phillip’s sister, confirmed that she was 

at Phillips’ parents’ residence in the early morning hours of April 4, 2012. (Id. at 

285-286.) She testified that Phillips came home around 2:00 or 3:00 o’clock in the 

morning wearing a gray sweatshirt and saying that he had been at Ritter’s. (Id. at 

286.) She claimed that Phillips was home for the rest of the night and she did not 

see him leave again. (Id. at 288.) Tamara remembered being interviewed by 

Lieutenant Frey and Angela Fultz, but denied telling them that Phillips “came 

running into the front door of the house” in the middle of the night or early 

morning hours. (Id. at 287.) She denied telling them that Phillips “was sweating, 

his hair was wet, and that he had sweat running down his face.” (Id. at 289.) 

Lieutenant Todd Frey 

{¶42} Lieutenant Todd Frey (“Lieutenant Frey”), from the Wyandot 

County Sheriff’s office, testified that he had interviewed Tamara about the events 

of April 4, 2012. (Id. at 289-290.) He prepared a written report concerning that 

interview, which he had brought with him to the stand. (Id. at 290.) During the 

interview with Lieutenant Frey Tamara did not specifically mention the times 2:00 

or 3:00 a.m., but she stated that Phillips “had come in the door, front door” in the 

middle of the night or early morning hours of April 4, 2012. (Id.) According to 

the report, Phillips “had sweat running down his face” and “his hair was wet.” 
Case No. 16-13-09 

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(Id.) Phillips told her that he had come from Ritter’s house and he then went to his 

bedroom. (Id. at 290-291.) After that, “she observed cops go by the house.” (Id.

at 291.) 

Deputy Verhoff 

{¶43} Deputy Verhoff testified again and explained that he had come into 

contact with Siefert between approximately 6:25 and 6:30, after he had responded 

to the call about the burglary at 6:19 a.m. (Id. at 293.) Siefert was coming from 

the direction of his home, rather than going toward his home at that time. (Id.) 

Deputy Verhoff also stated that he had not observed any frost on windshields or 

the grass in the morning of April 4, 2012. (Id. at 294.) 

Eric Risner 

{¶44} Eric Risner (“Eric”), Phillips’ brother-in-law, was allowed to testify 

for the purpose of impeachment. He heard his wife Tamara talk about that night, 

saying that Phillips was sweating and that “he was probably out jogging.” (Id. at 

297-298.) He observed Phillips burning “a little brown bag” the following day on 

the porch. (Id. at 298.) Several days later, he observed Roger carrying out “stuff 

that was wrapped up in a tablecloth,” which he described as “big things.” (Id.) 

Rebuttal by the Defense

{¶45} Roger was called by the defense and asked whether he remembered 

carrying anything out with tablecloth or moving any big objects around April 4 
Case No. 16-13-09 

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through 7, 2012. (Id. at 300.) Roger denied doing anything like that. (Id.) Roger 

stated that he used to have guns in the home in the past, “but not for the last ten 

years.” (Id.) Although he had a gun cabinet, it was empty and just used as 

storage. (Id. at 301.) 

Conclusion of the Trial and Post-Trial Proceedings

{¶46} The defense renewed its motion for acquittal, which was again 

denied by the trial court. The jury returned a unanimous verdict, finding Phillips 

guilty of aggravated burglary. (R. at 71.) The court ordered a presentence 

investigation and continued the matter for sentencing. (R. at 73.) 

{¶47} Before the sentencing in this case occurred, Phillips filed “Motion for 

Judgment of Acquittal Rule 29 or in the Alternative Rule 33 Motion for New 

Trial.” (R. at 77.) This document was filed by Phillips pro se, although it does not 

appear that attorney Merle Dech had been discharged at that point. (See R. at 75.) 

As evidence in support of his motion, Phillips attached several documents that had 

not been submitted into evidence previously. 

{¶48} Attorney Dech withdrew as counsel of record in this matter and 

Phillips filed multiple other documents pro se. (See R. at 81, Ex. A; R. at 88, 89.) 

He included additional exhibits, including letters, statements, and affidavits, which 

had not been provided to the trial court before, and which concerned alleged 
Case No. 16-13-09 

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irregularities during proceedings in the trial court.1

 (See, e.g., R. at 81, Ex. A; R. 

at 90, Ex. B, C.) The trial court assigned Phillips’ motions for a hearing and 

appointed another attorney, Shane Leuthold, to represent Phillips at the hearing. 

(See R. at 95, 97.) 

{¶49} On August 19, 2013, the trial court conducted a hearing on Phillips’ 

motion for acquittal and the alternative motion for a new trial. The trial court 

denied both motions and sentenced Phillips to eight years in prison. (R. at 110.) 

From that ruling Phillips now appeals raising the following as his assignments of 

error. 

FIRST ASSIGNMENT OF ERROR: THERE WAS 

INSUFFICIENT EVIDENCE TO SUSTAIN THE 

CONVICTION OF AGGRAVATED BURGLARY 

SECOND ASSIGNMENT OF ERROR: THE CONVICTION 

[FOR] AGGRAVATED BURGULARY [sic] WAS AGAINST 

THE MANIFEST WEIGHT OF THE EVIDENCE 

THIRD ASSIGNMENT OF ERROR: COUNSEL FOR THE 

DEFENDANT PROVIDED INEFFECTIVE ASSISTANCE OF 

COUNSEL 

FOURTH ASSINGMENT [sic] OF ERROR: THE COURT 

ERRED BY OVERRULING THE APPELLANT’S MOTION 

FOR RULE 29 DIRECTED AQUITTAL [sic] 

FIFTH ASSINGMENT [sic] OF ERROR: THE COURT 

ERRED BY OVERRULING THE DEFENDANT’S MOTION 

 

1

 Not all of the arguments made in Phillips’ trial court motions are before us on appeal. Therefore, we 

express no opinion on the arguments concerning irregularities at the arraignment, jury selection, and the 

trial, which were alleged in the trial court’s motions but are not raised here. 
Case No. 16-13-09 

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FOR NEW TRIAL PURSUANT TO CRIMINAL RULE OF 

PROCEDURE 33 

SIXTH ASSINGMENT [sic] OF ERROR: THE TRIAL COURT 

ERRED BY SENTENCING THE APPELLANT TO A TERM 

OF INCARCERATION OF EIGHT YEARS AND TRIAL 

TAXED HIM FOR EXERCISNG [sic] HIS RIGHT TO A JURY 

TRIAL 

1. First Assignment of Error—Sufficiency of the Evidence 

{¶50} In his first assignment of error, Phillips asserts that the evidence was 

insufficient to convict him of aggravated burglary. Under the indictment filed in 

this case, the State was required to prove that on or about the fourth day of April 

2012, Phillips by force, stealth, or deception, trespassed, by knowingly entering or 

remaining on the land or premises of Mrs. Turnbell, without privilege, when Mrs. 

Turnbell was present, with purpose to commit a criminal offense there, and that 

Phillips inflicted, or attempted or threatened to inflict physical harm on Mrs. 

Turnbell. (R. at 1, Indictment.) Phillips does not challenge all of the elements of 

the crime at issue. In this assignment of error Phillips only challenges the element 

concerning infliction and attempt or threat to inflict physical harm, as required by 

the indictment and by R.C. 2911.11(A)(1). Arguing that there is no evidence of 

any threat taking place, Phillips claims that the aggravating element is missing and 

demands reversal of his conviction. 

{¶51} When reviewing a criminal case for the sufficiency of the evidence, 

“our inquiry focuses primarily upon the adequacy of the evidence; that is, whether 
Case No. 16-13-09 

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the evidence submitted at trial, if believed, could reasonably support a finding of 

guilt beyond a reasonable doubt.” In re Willcox, 3d Dist. Hancock No. 5-11-08, 

2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 

N.E.2d 541 (1997). We look at the evidence in the light “most favorable to the 

prosecution” and we will affirm the conviction if “any rational trier of fact could 

have found the essential elements of the crime proven beyond a reasonable doubt.” 

State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118. 

Importantly, this test raises a question of law and does not allow us to weigh the 

evidence. In re Willcox at ¶ 10. “In essence, sufficiency is a test of adequacy”—

i.e., whether the evidence is legally sufficient to sustain a verdict as a matter of 

law. Thompkins, 78 Ohio St.3d at 386. 

{¶52} Phillips relies on the parts of Mrs. Turnbell’s testimony where she 

quoted the intruder as saying that he was not going to hurt her, to argue that there 

can be no finding of threat. He asserts that the intruder’s assurances that he was 

not going to hurt Mrs. Turnbell contradict the threat element. For that reason, he 

argues that the evidence was insufficient to convince an average mind beyond a 

reasonable doubt that the threat of harm occurred. 

{¶53} Nevertheless, Mrs. Turnbell testified that the intruder kept his gun 

constantly in her view and asked her for the money. The Ohio Supreme Court has 

recognized that, 
Case No. 16-13-09 

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[o]ne cannot display, brandish, indicate possession of, or use a 

deadly weapon in the context of committing a theft offense without 

conveying an implied threat to inflict physical harm. It is the very act 

of displaying, brandishing, indicating possession, or using the 

weapon that constitutes the threat to inflict harm because it 

intimidates the victim into complying with the command to 

relinquish property without consent. 

State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 23. 

Therefore, for the purpose of conviction for aggravated burglary a defendant’s act 

of brandishing a weapon “is legally sufficient to support the jury’s finding of a 

threat of physical harm.” State v. Brewer, 2d Dist. Montgomery No. 24109, 2011-

Ohio-2966, ¶ 14. The fact that the defendant subsequently assures the victim that 

they will not hurt her, “does not negate the existence of the threat,” because 

“[o]nce [the defendant] brandished the weapon, a threat to inflict physical harm 

had occurred.” Id. 

{¶54} Further in support of the threat element, Hoffman and Ritter both 

testified that they had heard the orders given to Mrs. Turnbell and heard her 

scream. (Id. at 157, 167, 212, 219-221.) Ritter specifically testified that he had 

heard a scream and a yell “put your hands up,” although he did not know whose 

voice it was. (Id. at 157.) He also heard someone say “Get the fuck down.” (Id.

167.) Hoffman heard someone yell “Freeze bitch” and he heard Mrs. Turnbell 

scream. (Id. at 220-221.) 
Case No. 16-13-09 

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{¶55} Therefore, there is sufficient evidence to conclude that the intruder 

brandished a weapon at Mrs. Turnbell and otherwise intimidated her into being 

submissive. The intruder’s actions, as described by the State’s witnesses, and 

viewed in the light most favorable to the prosecution, can certainly be construed as 

threatening Mrs. Turnbell with physical harm, in spite of his assurances to the 

contrary. 

{¶56} We recognize that Mrs. Turnbell never identified Phillips as the 

intruder who brandished the weapon at her. Yet, both Hoffman and Ritter testified 

that Phillips was the third person in Mrs. Turnbell’s house on the night in question 

and no other people were alleged to be present during the encounter with Mrs. 

Turnbell. (Trial Tr. at 149, 156, 210, 212.) Both accomplices testified that 

Phillips had a gun going into Mrs. Turnbell’s residence. Hoffman testified that 

Phillips had the black BB gun going into the burglary. (Id. at 212, 219.) There 

was also testimony of Phillips’ acquaintance, Kyle Shaw, who had sold Phillips 

the black BB gun, which looked like a semi-automatic pistol, sometime in the end 

of March or early April 2012. (Id. at 176.) 

{¶57} Furthermore, although the State did not provide the three men’s 

physical descriptions, the trial court pointed out that the jury was able to view 

them and recognize that neither Hoffman nor Ritter matched the description of the 

intruder given by Mrs. Turnbell. (See R. at 110, J. Entry, Aug. 22, 2013.) Mrs. 
Case No. 16-13-09 

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Turnbell described the intruder as being approximately 5 feet and 6 inches tall and 

weighing about 155 or 160 pounds, although she initially claimed that the weight 

was something about 180 pounds. In his testimony, Hoffman acknowledged that 

Ritter is “kind of a big guy,” while he (Hoffman) is “a little bit lighter.” (Id. at 

227-228.) Under the standard for reviewing sufficiency of the evidence, looking 

at the evidence in the light most favorable to the prosecution, this provided 

sufficient evidence for the jury to conclude that Phillips was the person 

brandishing a weapon in Mrs. Turnbell’s house and otherwise threatening her on 

April 4, 2012. 

{¶58} For all of the above reasons, we overrule Phillips’ first assignment of 

error, which challenges the sufficiency of the evidence for the threat of harm 

element of aggravated burglary. 

2. Second Assignment of Error—Manifest 

Weight of the Evidence 

{¶59} In this assignment of error, Phillips does not dispute any of the 

elements of aggravated burglary. Rather, he claims that because of his multiple 

alibi witnesses, doubtful credibility of the State’s witnesses, and lack of physical 

evidence placing him on the scene, the jury could not have reasonably found him

guilty beyond a reasonable doubt. Here, Phillips challenges his involvement in 

this crime as being against the manifest weight of the evidence. 
Case No. 16-13-09 

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{¶60} The question of manifest weight of the evidence concerns an “effect 

in inducing belief.” Thompkins, 78 Ohio St.3d at 387. Therefore, it is not subject 

to a mathematical analysis. Id. When reviewing a conviction challenged for the 

manifest weight of the evidence, an appellate court acts as a “thirteenth juror” and 

may disagree with the jury’s resolution of the conflicting testimony. Id., quoting 

Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the 

appellate court must give due deference to the findings of the jury, because 

[t]he fact-finder occupies a superior position in determining 

credibility. The fact-finder can hear and see as well as observe the 

body language, evaluate voice inflections, observe hand gestures, 

perceive the interplay between the witness and the examiner, and 

watch the witness’s reaction to exhibits and the like. Determining 

credibility from a sterile transcript is a Herculean endeavor. A 

reviewing court must, therefore, accord due deference to the 

credibility determinations made by the fact-finder. 

(Alteration omitted.) State v. Dailey, 3d Dist. Crawford, No. 3-07-23, 2008-Ohio274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 

(8th Dist.1998). Therefore, an argument that a conviction is against the manifest 

weight of the evidence will only succeed if the appellate court finds that “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 reversed and a new trial 

ordered.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 
Case No. 16-13-09 

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{¶61} Both sides presented evidence relevant to the issue of Phillips’ 

involvement in the crime and his presence at Mrs. Turnbell’s residence on the 

night in question. As cited above, the State provided evidence implicating Phillips 

in the crime through the testimony of Hoffman and Ritter. The two gave details of 

the crime, which were in many ways consistent with the testimony of Mrs. 

Turnbell and with the results of the investigation conducted by the police. 

{¶62} Phillips points to some irregularities in Hoffman and Ritter’s 

depictions of the crime, such as the discrepancy regarding whether Hoffman had a 

gun or whether he waited for Ritter behind the shed. (App’t Br. at 7-8.) Yet, in 

spite of the variations in Hoffman and Ritter’s testimony in describing some 

details of the crime, both were consistent in stating that Phillips told them about 

the money in Mrs. Turnbell’s residence, that Phillips was with them that night and 

he had a gun, that Phillips and Hoffman entered Mrs. Turnbell’s house while 

Ritter waited in the garage, and that Phillips stayed in Mrs. Turnbell’s residence 

after the two had fled. (Trial Tr. at 149-151, 153-156, 158-159, 212, 215-216, 

219, 222.) The jury was allowed to sort through the evidence and determine 

whether in view of the prior criminal history of the witnesses and the 

discrepancies in their testimony, Hoffman and Ritter’s statements about Phillips’ 

involvement in the crime were believable. Unlike us, the jurors heard and saw 

Hoffman and Ritter at trial and had additional indicia of the witnesses’ 
Case No. 16-13-09 

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truthfulness, such as their behavior at trial, “body language,” “voice inflections,” 

“hand gestures,” “interplay between the witness and the examiner,” and their 

“reaction to exhibits and the like.” Dailey, 2008-Ohio-274, at ¶ 7. We do not find 

that the discrepancies in the two accomplices’ testimonies were so significant as to 

render their statements utterly unreliable and the jury’s reliance on them, 

unreasonable. 

{¶63} Phillips alleges that Hoffman and Ritter could not be trusted because 

they had criminal records and “were willing to lie and say whatever they could to 

get a good deal.” (App’t Br. at 6.) We note that the jury was instructed that 

Hoffman and Ritter’s testimony “should be viewed with great suspicion and 

weighed with great caution.” (Trail Tr. at 343.) The trial court further instructed 

the jury that they were “not required to believe the testimony of any witness 

simply because he or she was under oath” and that they had to “determine what 

testimony is worthy of belief and what testimony is not worthy of belief.” (Id. at 

342.) It does not appear that the jury disregarded these instructions. 

{¶64} Hoffman and Ritter’s testimony regarding Phillips’ involvement in 

the crime was corroborated by other witnesses. For example, Shaw testified that 

he had sold Phillips a BB gun shortly before the burglary. Tamara stated that 

Phillips came home in the early morning hours on April 4, 2012, saying that he 

had been at Ritter’s house. Lieutenant Frey testified about Tamara’s prior 
Case No. 16-13-09 

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statement that Phillips had come home that night sweaty, shortly before the police 

went by their house. Mrs. Turnbell testified about the height and weight of the 

intruder. Those features were similar to Phillips’ characteristics, as given by 

Phillips’ mother. Furthermore, as noted by the trial court, the jury could observe 

Phillips and consider whether his appearance matched the descriptions given by 

Mrs. Turnbell. (See R. at 110, at 3.) 

{¶65} Phillips further argues that the evidence at trial contradicted Hoffman 

and Ritter’s testimony about his involvement in the crime. For example, Mrs. 

Turnbell saw only one intruder and Siefert saw only two individuals coming from 

Crabapple Drive on the night in question. Apart from Hoffman and Ritter, no 

other witness attested to three individuals being involved in the crime. He claims 

that the police investigation did not reveal involvement of a third individual either, 

because there were only two sets of foot tracks leading from Mrs. Turnbell’s 

house. He emphasizes the fact that no physical evidence places him on the crime 

scene. While multiple pieces of evidence pointed to Hoffman being present at 

Mrs. Turnbell’s house, and a witness saw Ritter close to the crime scene, nothing 

implicated Phillips, other than the testimony of the two criminals. He further 

points to the fact that the forensic tests only found Hoffman’s DNA on the Red 

Bull can, although Hoffman testified that Phillips had drunk from it too. 
Case No. 16-13-09 

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{¶66} Nevertheless, there was circumstantial evidence corroborating 

Hoffman and Ritter’s testimony, as detailed above. Furthermore, the front door 

found open after the burglary corroborates Hoffman and Ritter’s statements that 

Hoffman ran through the front door; while the two sets of foot tracks leading from 

the garage indicate that two more individuals used that avenue of escape, showing 

that there were at least three intruders in Mrs. Turnbell’s house. “Circumstantial 

evidence and direct evidence have the same probative value.” State v. Adams, 3d 

Dist. Crawford No. 3-06-24, 2007-Ohio-4932, ¶ 21, citing State v. Jenks, 61 Ohio 

St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. Therefore, 

while the jury was allowed to infer a reasonable doubt from the lack of direct 

physical evidence placing Phillips on the scene, its reliance on Hoffman and 

Ritter’s testimony and on the circumstantial evidence to infer Phillips’ 

involvement in the crime beyond a reasonable doubt was not prohibited. 

{¶67} Phillips claims that he had multiple alibi witnesses—Siefert and his 

parents saw him at home during the time when the burglary was taking place. 

(App’t Br. at 9.) Nevertheless, as the State pointed out to the jury, all three of 

these witnesses waited until the day of trial to disclose the alibi, rather than make 

the statements to the police earlier to exculpate Phillips, even though they knew 

that Phillips had been charged with this crime in August 2012. 
Case No. 16-13-09 

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{¶68} Phillips argues that Siefert and his family members’ statements were 

more credible than Hoffman and Ritter’s. Nevertheless, Siefert’s testimony, or at 

least his recollection of the order and timing of the events, was called into question 

by the statements of Deputy Verhoff, who stated that Siefert was coming from the 

direction of his home, rather than going toward his home at the time when he 

talked to him at about 6:30 in the morning. Deputy Verhoff also contradicted 

Siefert’s claim that there was frost on the windshields on the morning of April 4, 

2012, which would require Siefert to go outside of his house twenty minutes prior 

to 6:00 a.m. to warm up his car. Siefert’s refusal to make a written statement to 

the police, in spite of multiple requests to do so, might also have affected the 

jury’s receptiveness to his testimony at trial. 

{¶69} Roger and Brenda’s testimony that Phillips was at home all night 

was directly contradicted by their daughter Tamara’s testimony, who saw Phillips 

come home from Ritter’s house at some time in the early morning hours of April 

4, 2012. In turn, Tamara’s testimony that Phillips was home on April 4, 2012, 

since around 2:00 or 3:00 in the morning, was undermined by Lieutenant Frey and 

her husband Eric, both testifying that Tamara gave prior inconsistent statements 

about that night. Roger’s credibility was undermined in other ways as well. Ritter 

claimed that he had met with Roger and talked to him about the crime, but Roger 
Case No. 16-13-09 

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testified that he had never talked to Ritter. Roger’s wife indicated that Roger had 

a prior felony theft conviction. 

{¶70} Although Phillips claims that his witnesses were more credible than 

Hoffman and Ritter, we do not find that the jury lost its way in believing Hoffman 

and Ritter rather than Siefert, Roger, and Brenda. The jury, as the trier of facts, 

“may believe or disbelieve any witness or accept part of what a witness says and 

reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State 

v. Davis, 3d Dist. No. 9-06-56, 2007-Ohio-4741, ¶ 40. The alibi testimony 

presented by defense witnesses was undermined in multiple ways, while Hoffman 

and Ritter’s testimony regarding Phillips’ participation in the burglary was 

corroborated by other evidence and by Tamara and Eric’s testimony. 

{¶71} Phillips claims that he could not have committed the crime because 

he went to work at Hopewell Loudon School, which was located about 35-40 

minutes away from Phillips’ house, and that he left shortly after 6:00 to be there 

by 7:00 a.m. Nevertheless, an invoice introduced as a proof of this fact merely 

showed that Roger’s business performed yard work at Hopewell Loudon School 

on April 4, 2012. The invoice did not exhibit the time at which the work started 

and it did not show that Phillips was actually the person performing the work on 

that day. Furthermore, the invoice was prepared by Phillips’ mother, whose 

credibility was undermined by her own daughter’s testimony. In addition, the 
Case No. 16-13-09 

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invoice, even if believed by the jury, did not contradict their finding that Phillips 

was at Mrs. Turnbell’s residence prior to 6:19 a.m. Phillips could have been 

involved in the burglary, which had occurred prior to 6:19 a.m., when it was 

reported to Deputy Verhoff, and still have gone to Hopewell Loudon School, 

which was located about 35-40 minutes away, to work there at approximately 7:00 

a.m. 

{¶72} Although the trial transcript shows many deficiencies in both parties’ 

versions of events, we cannot say that the jury clearly lost its way in resolving 

conflicts in evidence and finding that Phillips was involved in the burglary of Mrs. 

Turnbell’s residence. Therefore, the conviction was not against the manifest 

weight of the evidence and the second assignment of error is overruled. 

3. Third Assignment of Error—Ineffective 

Assistance of Counsel 

{¶73} In his third assignment of error, Phillips asserts that his trial counsel, 

Mr. Dech, was ineffective in several respects, which we discuss separately below 

in parts a-c of this assignment of error. In order to prevail on a claim of 

ineffective assistance of counsel, a criminal defendant must first show that the 

counsel’s performance was deficient in that it fell “below an objective standard of 

reasonable representation.” State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47 

(1997). Second, the defendant must show “that the deficient performance 

prejudiced the defense so as to deprive the defendant of a fair trial.” Id., citing
Case No. 16-13-09 

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Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). In order to demonstrate prejudice, the defendant must prove a reasonable 

probability that the result of the trial would have been different but for his or her 

counsel’s errors. Id. In applying these standards, the court must “indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 

772 N.E.2d 81, ¶ 108, quoting Strickland, 466 U.S. at 669. Therefore, the court 

must be highly deferential in its scrutiny of counsel’s performance. State v. 

Walker, 90 Ohio App.3d 352, 359, 629 N.E.2d 471 (3d Dist.1993), quoting 

Strickland, 466 U.S. at 689. 

a. Failure to Remove a Juror 

{¶74} As his first claim under this assignment of error, Phillips alleges that 

his counsel was ineffective by failing to remove a member of the jury. During the 

examination of the jury, the prosecutor asked many questions, including whether 

anyone of the prospective jurors had done any investigation on their own or had 

heard anything about this case. (Trial Tr. at 33-34.) The prosecutor then read a 

list of potential witnesses in the case, asking whether any of the jurors knew the 

witnesses and whether they would be able to judge their testimony impartially and 

fairly. (Id. at 36.) The defense counsel asked, among others, whether the jury 

would follow the instructions of the trial court and consider the case carefully, 
Case No. 16-13-09 

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holding the State to its burden of proof, and whether they could be fair jurors to 

Phillips as well as to the State. (Id. at 48, 51.) After the defense had exercised all 

of its peremptory challenges, Ms. Lynn Payton was called in to the jury box. The 

trial court and the two attorneys had an opportunity to question her as a 

prospective juror. The following exchange occurred: 

THE COURT: Lynn, now that you’re up there, do you wish you 

would have responded to any of the questions? 

MS. PAYTON: No. 

THE COURT: Okay. Mr. Miller. 

MR. MILLER: Ms. Payton, can you judge this case and base a 

verdict on the evidence that you here [sic] within the four walls of 

this courtroom? 

MS. PAYTON: Yes. 

MR. MILLER: Nothing further. 

THE COURT: Mr. Dech. 

MR. DECH: Thank you. Ms. Payton, do you feel you could be a fair 

and impartial juror in this case? 

MS. PAYTON: I do. 

MR. DECH: And if we were to reverse the roles, would you want 

someone in your present mental disposition to sit as a juror in this 

case? 

MS. PAYTON: Sure. 

MR. DECH: Okay. And you’ll uphold the State of Ohio to its 

burden of proof? 

MS. PAYTON: Yes. 

MR. DECH: And if they don’t prove this case beyond a reasonable 

doubt, your finding must be not guilty. You can follow that? 

MS. PAYTON: Yes, I can. 

MR. DECH: Okay. If you see anybody, can you say—if you make a 

finding of not guilty, you’ll stand by it; you wouldn’t be reluctant 

about it? 

MS. PAYTON: Yes. 

MR. DECH: Okay. Is there any reason you would not be a fair and 

impartial juror in this case? 

MS. PAYTON: No. 
Case No. 16-13-09 

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MR. DECH: Okay. Thank you. 

THE COURT: Ms. Payton I would be remiss if I did not bring this 

out. You work in the Clerk of Court’s office, correct? 

MS. PAYTON: Yes, I do. 

THE COURT: Papers involving this case have been filed through 

that office? 

MS. PAYTON: I’m involved in the paper flow, yes. 

THE COURT: Has there been anything that has come through your 

hands about this case or been said about this case in your presence 

that sticks with you that would influence you one way or the other? 

MS. PAYTON: I don’t believe so. 

THE COURT: So you’re assuring us you could be fair and 

impartial? 

MS. PAYTON: I think so. 

THE COURT: Okay. Pass for cause? 

MR. MILLER: Yes, Your honor. 

THE COURT: Mr. Dech? 

MR. DECH: I pass for cause, too. 

(Id. at 68:6-70:13.) 

{¶75} In his brief, Phillips speculates that the defense counsel did not know 

about Ms. Payton’s occupation prior to the trial judge bringing it to his attention 

and that Ms. Payton “chose to withhold this information.” (See App’t Br. at 11-

12.) The record does not support this speculation. Nevertheless, even assuming 

that the defense counsel was indeed unaware of Ms. Payton’s employment at the 

Clerk of Court’s office and that his performance was deficient for not informing 

himself about her occupation ahead of time, there is no prejudice alleged or shown 

by this fact. The trial court disclosed Ms. Payton’s occupation in open court and 

the defense counsel had an opportunity to question her about her ability to judge 

this case. 
Case No. 16-13-09 

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{¶76} Phillips alleges that the trial counsel “didn’t even notice that Lynn 

Payton had affixed her signature on the indictment itself,” to certify that it was “a 

full, true and correct copy of the original Indictment.” (App’t Br. at 13; id. Ex. A.) 

We note that the indictment provided in the record does not have Ms. Payton’s 

signature affixed to it. (R. at 1.) Yet, assuming that Ms. Payton’s signature did 

appear on the indictment’s certification, there is no support for the allegation that 

the trial counsel “didn’t even notice” it, or that he was deficient in this respect. 

Furthermore, as the trial court noted in its judgment entry denying Phillips’ 

motions for acquittal and for new trial, there could have been no prejudice from 

Ms. Payton’s signing of the indictment. (R. at 110, J. Entry at 6-7.) Ms. Payton 

attested that she was not familiar with the case. But, even if she had read the 

indictment previously, she would not have obtained any knowledge outside of the 

record because, as the trial court noted, the indictment was a public record and was 

read to the entire jury during the trial. (Id.; Trial Tr. at 344-345.) 

{¶77} Phillips alleges that the defense counsel was ineffective “for not at 

least trying to have [Ms. Payton] removed for cause.” (App’t Br. at 13.) In order 

to win a challenge based on ineffective assistance due to the trial counsel’s failure 

to “at least try” to remove Ms. Payton for cause, Phillips would have to show (1) 

the trial counsel’s failure to “at least try” fell below an objective standard of 

reasonable representation. See Keith, 79 Ohio St. 3d at 534. He then would have 
Case No. 16-13-09 

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to show a reasonable probability that (2) the result of the trial would have been 

different had the trial counsel “at least tried” to remove Ms. Payton for cause. See 

id. Phillips fails to do so. 

{¶78} We have previously repeatedly held that a prospective juror will not 

be excused from a criminal trial for cause by a virtue of his or her employment 

with the State of Ohio where no bias by the juror is shown. State v. Sims, 20 Ohio 

App.2d 329, 332, 253 N.E.2d 822 (3d Dist.1969); see also State v. Allsup, 3d Dist. 

Hardin No. 6-10-09, 2011-Ohio-404, ¶¶ 46-52. Even the fact that the juror is a 

state employee and knows witnesses or attorneys involved in the case does not 

render the juror automatically biased against the criminal defendant. State v. 

Stockton, 3d Dist. Shelby No. 17-96-15, 1997 WL 232245, *5 (May 5, 1997). In 

order to excuse a juror for cause, something more is needed. A list of possible 

causes for juror challenges is provided in R.C. 2313.17 and Crim.R. 24.2

 Phillips 

does not assert that any of those causes existed in this case. 

 

2

 R.C. 2313.17 states, 

(B) The following are good causes for challenge to any person called as a juror: 

(1) That the person has been convicted of a crime that by law renders the person 

disqualified to serve on a jury; 

(2) That the person has an interest in the cause; 

(3) That the person has an action pending between the person and either party; 

(4) That the person formerly was a juror in the same cause; 

(5) That the person is the employer, the employee, or the spouse, parent, son, or daughter 

of the employer or employee, counselor, agent, steward, or attorney of either party; 

(6) That the person is subpoenaed in good faith as a witness in the cause; 

(7) That the person is akin by consanguinity or affinity within the fourth degree to either 

party or to the attorney of either party; 

(8) That the person or the person’s spouse, parent, son, or daughter is a party to another 

action then pending in any court in which an attorney in the cause then on trial is an 

attorney, either for or against any such party to another such action; 
Case No. 16-13-09 

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{¶79} Phillips alleges no bias stemming from Ms. Payton’s occupation or 

the fact that her signature appeared on the certification to the copy of the original 

indictment. Ms. Payton admitted that she was involved in the paper flow in the 

 (9) That the person discloses by the person’s answers that the person cannot be a fair and 

impartial juror or will not follow the law as given to the person by the court. 

(C) Each challenge listed in division (B) of this section shall be considered as a principal 

challenge, and its validity tried by the court. 

(D) In addition to the causes listed in division (B) of this section, any petit juror may be 

challenged on suspicion of prejudice against or partiality for either party, or for want of a 

competent knowledge of the English language, or other cause that may render the juror at 

the time an unsuitable juror. The validity of the challenge shall be determined by the 

court and be sustained if the court has any doubt as to the juror's being entirely unbiased. 

Crim.R. 24(C) states that a “person called as a juror may be challenged for the following causes:” 

(1) That the juror has been convicted of a crime which by law renders the juror 

disqualified to serve on a jury. 

(2) That the juror is a chronic alcoholic, or drug dependent person. 

(3) That the juror was a member of the grand jury that found the indictment in the case. 

(4) That the juror served on a petit jury drawn in the same cause against the same 

defendant, and the petit jury was discharged after hearing the evidence or rendering a 

verdict on the evidence that was set aside. 

(5) That the juror served as a juror in a civil case brought against the defendant for the 

same act. 

(6) That the juror has an action pending between him or her and the State of Ohio or the 

defendant. 

(7) That the juror or the juror’s spouse is a party to another action then pending in any 

court in which an attorney in the cause then on trial is an attorney, either for or against 

the juror. 

(8) That the juror has been subpoenaed in good faith as a witness in the case. 

(9) That the juror is possessed of a state of mind evincing enmity or bias toward the 

defendant or the state; but no person summoned as a juror shall be disqualified by reason 

of a previously formed or expressed opinion with reference to the guilt or innocence of 

the accused, if the court is satisfied, from the examination of the juror or from other 

evidence, that the juror will render an impartial verdict according to the law and the 

evidence submitted to the jury at the trial. 

(10) That the juror is related by consanguinity or affinity within the fifth degree to the 

person alleged to be injured or attempted to be injured by the offense charged, or to the 

person on whose complaint the prosecution was instituted; or to the defendant. 

(11) That the juror is the person alleged to be injured or attempted to be injured by the 

offense charged, or the person on whose complaint the prosecution was instituted, or the 

defendant. 

(12) That the juror is the employer or employee, or the spouse, parent, son, or daughter of 

the employer or employee, or the counselor, agent, or attorney, of any person included in 

division (C)(11) of this rule. 

(13) That English is not the juror's native language, and the juror’s knowledge of English 

is insufficient to permit the juror to understand the facts and the law in the case. 

(14) That the juror is otherwise unsuitable for any other cause to serve as a juror. 
Case No. 16-13-09 

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Clerk of Court’s office, but she did not believe that she had been exposed to any 

information that would give her special prior knowledge of this case. During the 

trial, the court stated for the record that the evidence, which was filed and sealed 

by the clerk’s office, was not given to Ms. Payton to file. (Trial Tr. at 189.) The 

defense counsel confirmed his understanding of that fact and stipulated to it. (Id.) 

{¶80} The trial counsel could have reasonably relied on Ms. Payton’s 

answers to multiple questions from the trial court, the prosecution, and from 

himself, where Ms. Payton indicated that she did not know anything about the case 

and she could be fair and impartial. Accordingly, the defense counsel’s failure to 

“at least try” to remove her for cause is not sufficient to rebut the “strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Cassano, 2002-Ohio-3751, at ¶ 108. 

{¶81} Phillips does not provide any law to support even the possibility that 

the trial court would have removed Ms. Payton from the jury for cause had 

defense counsel requested it. The Second District Court of Appeals was faced 

with an allegation of ineffective assistance of counsel were the trial attorney 

allowed a juror employed as a deputy clerk in the county’s municipal court to 

serve on a jury. State v. McKinney, 80 Ohio App.3d 470, 609 N.E.2d 613 (2d 

Dist.1992). That appellate court refused to infer prejudice and bias so as to render 

the clerk “an unfit juror,” without any assertion that the clerk had prior knowledge 
Case No. 16-13-09 

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of the case. Id. at 476-477. Similarly, in spite of the possibility that Ms. Payton 

had signed the certification of the indictment in her professional capacity, Phillips 

does not allege that she had any prior knowledge of the case. Conversely, the 

transcript of the jury voir dire reflects that Ms. Payton was not familiar with the 

case. 

{¶82} Moreover, there is no prejudice, alleged or shown, from Ms. 

Payton’s participation in the jury deliberations. “Neither the Ohio Rules of Civil 

Procedure nor the Ohio Revised Code contains a provision that a court employee 

is presumed to be biased as a juror. See R.C. 2313.42 [recodified as RC 2313.17]; 

Crim.R. 24.” McKinney, 80 Ohio App.3d at 476; accord State v. Saunders, 4th 

Dist. Ross No. 1896, 1993 WL 524968, *7-8 (Dec. 1, 1993) (rejecting a claim that 

a juror employed as a deputy clerk of courts in the same county’s juvenile court or 

a juror employed as assistant to the warden at a correctional institution should 

automatically be rendered “biased against a criminal defendant”). The burden of 

showing a juror’s bias is upon the challenger. State v. Warner, 55 Ohio St.3d 31, 

47, 564 N.E.2d 18 (1990), quoting Reynolds v. United States, 98 U.S. 145, 157, 25 

L.Ed. 244 (1878). Phillips does not allege that Ms. Payton’s occupation or her 

signature on the certification page for the indictment influenced her or the jury in 

any way, resulting in the finding of guilty. The voir dire examination of Ms. 

Payton does not reveal any bias or prejudice against Phillips. On the contrary, Ms. 
Case No. 16-13-09 

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Payton repeatedly assured the court, the prosecutor, and the defense counsel that 

she could be impartial and that she would follow the law in this case. 

{¶83} Therefore, even if the defense counsel had requested removal of Ms. 

Payton for cause, there is no reasonable probability that the trial court would have 

granted the request and no reasonable probability that the result of the jury 

deliberations would have been different. In view of these facts and the lack of any 

indication of bias, we reject Phillips’ argument that his trial counsel was 

ineffective by failing to remove Ms. Payton from the jury. 

b. Failure to Request a Copy of Hoffman and Ritter’s 

Grand Jury Testimony 

{¶84} Phillips argues that his trial counsel was ineffective because he had 

not ordered the transcript of Hoffman and Ritter’s grand jury testimony. We reject 

this allegation for several reasons. 

{¶85} Phillips does not submit why the grand jury testimony was essential 

to his defense and does not even allege that the grand jury testimony would have 

revealed anything that would support his acquittal. He argues that the defense 

counsel should have requested the grand jury testimony because if he had, the 

State would have been required to turn it in under Crim.R. 16. (App’t Br. at 14.) 

Of note, Phillips does not allege that the grand jury testimony would have showed 

inconsistencies in Hoffman and Ritter’s stories. Rather he suggests that the trial 

counsel should have obtained Hoffman and Ritter’s grand jury testimony to 
Case No. 16-13-09 

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“compare it to their original statements to police as well as what they said at trial.” 

(Id.) This statement, in itself, shows that Phillips’ allegation of ineffective 

assistance must fail, as the claim that “the result of the trial would have been 

different” if the trial counsel had requested the grand jury testimony, is completely 

speculative. See Keith, 79 Ohio St. 3d at 534. 

{¶86} Furthermore, the inconsistencies in Hoffman and Ritter’s accounts of 

the events on April 4, 2012, were revealed at trial and weighed by the jury. As 

stated above, those inconsistencies did not go to the elements of aggravated 

burglary or to the issue of Phillips’ involvement in the crime. The jury was 

informed that the two accomplices had prior criminal records and were offered 

more beneficial sentences in exchange for their testimony against Phillips. The 

jury was then instructed on how to weigh their testimony. The claim that the 

grand jury testimony would have further undermined their credibility in such a 

manner that the jury would have acquitted Phillips does not amount to “a 

reasonable probability that the result of the trial would have been different.” 

Keith, 79 Ohio St. 3d at 534. 

{¶87} Accordingly, Phillips cannot satisfy a claim of ineffective assistance 

of counsel based on the alleged failure to request a copy of the grand jury 

testimony. 
Case No. 16-13-09 

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c. Failure to Object or Call Witnesses 

{¶88} As his next contention under this assignment of error, Phillips asserts 

that the trial counsel should have objected to the State’s question directed to 

Brenda about Roger’s 2005 conviction for felony theft. “[F]ailure to object to 

error, alone, is not enough to sustain a claim of ineffective assistance.” State v. 

Campbell, 69 Ohio St.3d 38, 52-53, 630 N.E.2d 339 (1994), quoting State v. 

Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). “Because ‘objections 

tend to disrupt the flow of a trial, and are considered technical and bothersome by 

the fact-finder,’ competent counsel may reasonably hesitate to object in the jury’s 

presence.” (Alterations omitted.) Id. at 53, quoting Jacobs, Ohio Evidence 

(1989), at iii-iv. 

{¶89} Like with the prior arguments regarding the counsel’s deficiency, 

Phillips fails to show how this alleged error deprived him of a fair trial. Even if 

the trial counsel had objected to the State’s question and Brenda’s testimony about 

Roger’s 2005 conviction had not been heard by the jury, Roger’s truthfulness was 

otherwise undermined by Tamara, Eric, and Ritter, who gave statements 

contradicting Roger’s various declarations. Roger’s testimony as an alibi witness 

was further undermined by the fact that he had waited for months to disclose the 

purported alibi, while knowing about his son facing charges for this felony since 

August 2012. 
Case No. 16-13-09 

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{¶90} Under this assignment of error Phillips also claims that his defense 

counsel failed to “call important witnesses.” (App’t Br. at 14.) No argument is 

provided to support this claim so as to rebut the “strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional 

assistance,” or to show that the result of the trial would have been different if the 

trial counsel had called more witnesses, raised more objections, or provided more 

evidence. Cassano, 2002-Ohio-3751, at ¶ 108, quoting Strickland, 466 U.S. at 

689; Keith, 79 Ohio St. 3d at 534. 

{¶91} For all of the foregoing reasons, Phillips’ third assignment of error is 

overruled. 

4. Fourth Assignment of Error—Motion for Acquittal 

{¶92} Phillips’ argument in his fourth assignment of error, states, in its 

entirety 

The facts and arguments for a Rule 29 motion for directed acquittal 

have been set forth under the assignments of error for sufficiency 

and manifest weight of the evidence. Appellate counsel incorporates 

those arguments as fully restated herein. 

(App’t Br. at 15.) In response to this legal argument, based upon our previous 

discussion of the first and second assignment of error, we overrule the fourth 

assignment of error. 
Case No. 16-13-09 

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5. Fifth Assignment of Error—Motion for New Trial 

{¶93} In support of his contention that his motion for new trial should have 

been granted, Phillips asserts two grounds under Crim.R. 33: (1) misconduct of the 

jury due to the inclusion of Ms. Payton on the jury panel, and (2) prosecutorial 

misconduct due to the State allegedly allowing perjured testimony at trial. See 

Crim.R. 33(A)(2). 

{¶94} As to the first claim, no misconduct of the jury has been alleged or 

proved. We have already discussed above that no basis for excluding Ms. Payton 

from the jury has been provided to the trial court and no evidence about Ms. 

Payton’s bias or improper effect on the jury has been revealed. With respect to the 

second claim, Phillips continues to argue that Hoffman and Ritter lied on the stand 

and alleges that the State engaged in misconduct by offering their testimony, 

which the State allegedly knew to be false. 

{¶95} The Ohio Supreme Court held that, a prosecutorial misconduct and a 

denial of due process occurs when the state knowingly uses false or perjured 

testimony “if there is any reasonable likelihood that the false testimony could have 

affected the judgment of the jury.” State v. Iacona, 93 Ohio St.3d 83, 97, 752 

N.E.2d 937 (2001), quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th 

Cir.1989). In order to prove the denial of due process as a result of prosecutorial 

misconduct, the defendant must show that “(1) the statement was actually false; 
Case No. 16-13-09 

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(2) the statement was material; and (3) the prosecution knew it was false.” Id.; see 

also State v. Snyder, 3d Dist. Seneca No. 13-12-38, 2013-Ohio-2046, ¶ 43, quoting 

State v. Twyford, 94 Ohio St.3d 340, 355, 763 N.E.2d 122 (2002) (“In assessing 

the existence of prosecutorial misconduct, we are mindful that ‘the touchstone of 

this analysis is the fairness of the [proceeding], not the culpability of the 

prosecutor.’ ”). Under this standard, we hold that there was no due process 

violation and Phillips is not entitled to new trial. 

{¶96} On appeal, Phillips does not specify which of the purportedly false 

statements were intentionally introduced by the State in spite of its alleged 

knowledge that they were not true. His pro se motion in the trial court, however, 

alleged that the State engaged in misconduct by failing to impeach Hoffman, who 

had supposedly previously stated that he had carried a .32 pistol during the 

robbery on Mrs. Turnbell’s residence, but then testified differently at trial. (R. at 

77 at 5, 32, 35). We note that there is no evidence that Hoffman or Ritter lied on 

the stand. No proof has been introduced that Hoffman did indeed carry a gun into 

the burglary or that the State knew about it and allowed Hoffman to testify that he 

did not have a gun. 
Case No. 16-13-09 

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{¶97} Phillips relies on statements that he claims had been made, but were 

not before the trial court,3

 such as “brag[ging] to a fellow inmate” or giving prior 

inconsistent statements in a recorded interview. (R. at 77, at 5, 32; App’t Br. at 

17.) These statements, even if true, would not warrant a reversal of Phillips’ 

conviction because they were not material to his prosecution. The statements did 

not concern any of the elements of the crime, or Phillips’ involvement in the 

burglary. Although Phillips might argue that pointing out another inconsistency in 

Hoffman’s testimony would have resulted in jury’s disbelieving his statement 

about Phillips’ involvement in the crime, both accomplices were subject to crossexamination and were asked about their prior inconsistent statements. Their 

credibility was challenged multiple times by the defense counsel through pointing 

out that they had had prior felony convictions and had agreed to testify against 

Phillips in exchange for more beneficial sentences. Hoffman’s testimony that he 

did not have a gun during the burglary was undermined by Ritter’s testimony to 

the contrary. We therefore cannot say that the State’s failure to correct Hoffman’s 

answer regarding his use of a gun during the burglary would have changed the 

jury’s evaluation of his credibility. See Iacona, 93 Ohio St.3d at 97 (reaching 

similar conclusion where the state failed to correct its witness’s answer that was 

contrary to facts). 

 

3

 After trial, Phillips moved to supplement the trial court’s record with CDs of, what he had claimed to be, 

interviews of Hoffman and Ritter. (R. at 114.) The trial court denied the request and therefore, this 

evidence is not before us. (See J. Entry, Sept. 17, 2013.) 
Case No. 16-13-09 

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{¶98} Concluding, Phillips fails to satisfy any of the three elements 

required for a new trial based on prosecutorial misconduct and he does not show 

any misconduct by the jury. Accordingly, his motion for new trial was properly 

denied and his fifth assignment of error is overruled. 

6. Sixth Assignment of Error—Improper Sentencing 

{¶99} In this assignment of error, Phillips does not allege that his sentence 

was improper under the statutory guidelines. Rather, he claims that it was too 

harsh when compared to the sentences received by Hoffman and Ritter. Phillips 

asserts that the circumstances of the crime were the same for all three offenders 

and the victim suffered one, indivisible harm as a result of the burglary. He 

further highlights the fact that unlike Hoffman and Ritter, he had no prior criminal 

record. He contends that in view of these facts, the discrepancy between his 

sentence and sentences of his accomplices can only be explained as a “ ‘trial tax[]’ 

for exercising his constitutional right to a jury trial,” and is unconscionable. 

(App’t Br. at 18-19.) 

{¶100} Phillips cites City of Columbus v. Bee, where the Tenth District 

Court of Appeals reversed a sentence imposed by the trial court, upon finding that 

the lower court had ignored the sentencing guidelines in arbitrarily imposing the 

maximum allowed penalty “as a price of ignoring the court’s plea bargaining 

recommendation.” 67 Ohio App.2d 65, 425 N.E.2d 409 (10th Dist.1979), 
Case No. 16-13-09 

- 53 - 

paragraph 2 of the syllabus. The facts of Bee were significantly different than 

Phillips’ case and his reliance on the opinion of the Tenth District Court of 

Appeals in requesting reversal is meritless. In Bee, the trial court participated in 

the plea negotiations and indicated “that probation was a possibility if there was a 

plea of no contest (and therefore no trial), but would probably not be given if [the 

defendant] went to trial and was convicted.” Id. at 74. The defendant “ultimately 

received the maximum sentence without any consideration of statutory sentencing 

guidelines,” which made it “clear that [she] was penalized for insisting on a trial.” 

(Emphasis added.) Id. at 74-75. Here, the record does not reflect that any plea 

negotiations took place and no allegations are made that the trial court participated 

in such negotiations. Phillips did not receive the maximum sentence for the crime, 

which was up to eleven years. R.C. 2929.14. The record reflects that the trial 

court did consider the statutory sentencing guidelines. (See, e.g., R. at 109, at 3-4; 

Sentencing Tr.) Therefore, there is no support for Phillips’ assertion that his case 

is similar to Bee and that he was penalized for going to trial. 

{¶101} We previously rejected an allegation that a trial court was imposing 

“a trial tax” when it sentenced a defendant to a longer prison term than the term 

given to his companions who pled guilty to the same crime. See State v. Shoe, 3d 

Dist. Hancock No. 5-92-12, 1992 WL 380267, *2 (Dec. 16, 1992). In Shoe, we 

reiterated the standard for reviewing the trial court’s sentence, holding that “a 
Case No. 16-13-09 

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reviewing court ‘cannot invade the province of the trial court by setting aside a 

sentence [imposed within statutory guidelines] if there is no clear showing that the 

trial court abused its discretion.’ ” Id., quoting Bee, 67 Ohio App.2d at 77. 

Phillips does not allege that his sentence was contrary to the statutory guidelines 

and it appears that the record supports the trial court’s analysis of those guidelines. 

Accordingly, we follow our reasoning in Shoe and reject Phillips’ contention that 

he was “trial taxed” merely because he received a harsher sentence than his 

accomplices. 

{¶102} We further note that although Phillips claims that all three offenders 

committed the same crime, the record does not reflect whether Hoffman and Ritter 

were charged with the same offense, being aggravated burglary, a felony of the 

first degree. Hoffman and Ritter’s sentencing transcripts are not before us and we 

will not speculate about the trial court’s reasoning when imposing the six-year 

prison terms on them. We note, however, that although all three offenders 

participated in the same crime, each of them was involved in a different way. 

According to the testimony found by the jury to be true, Phillips was the only one 

who actually faced the victim and threatened her by brandishing the weapon in 

front of her. He was the only one who did not flee the scene when Mrs. Turnbell 

started screaming. Also, as the trial court noted in its sentencing judgment entry, 

Phillips “was the only one who had a connection, no matter how remote, to this 
Case No. 16-13-09 

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victim.” (R. at 109, J. Entry at 3.) Therefore, his actions had more serious impact 

on Mrs. Turnbell than the actions of Hoffman and Ritter. 

{¶103} Concluding, no facts support Phillips’ contention that he was 

penalized for exercising his right to a jury trial. Because no irregularities appear 

with respect to Phillips’ sentencing, we hold that the trial court did not abuse its 

discretion in sentencing Phillips to eight years in prison and we overrule the sixth 

assignment of error. 

Conclusion

{¶104} Having reviewed the arguments, the briefs, and the record in this 

case, we find no error prejudicial to Appellant in the particulars assigned and 

argued herein. The judgment of the Common Pleas Court of Wyandot County, 

Ohio is therefore affirmed. 

Judgment Affirmed 

ROGERS and PRESTON, J.J., concur. 

/jlr