[Cite as State v. Guildoo , 2021-Ohio-4553.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

v. STEVEN GUILDOO, Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 20 MA 0124

Criminal Appeal from the Mahoning County Court No. 3, of Mahoning County, Ohio Case Nos. 2020 CRB 00103, 2020 TRD 00587, 2019 CRB 00234

BEFORE: Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Jud g es.

JUDGMENT: Affirmed

A tty. Michael A. Rich, Atty. Ralph Rivera , Assistant Prosecutors, Mahoning Count y Prosecutor’s Office, 21 West Boardman Street, 6 th Floor, Youngstown, Ohio 44503, fo r Plaintiff-Appellee and

A tty. John A. McNally, IV , Roth, Blair, Roberts, Strasfeld & Lodge, 100 Federal Street East, Suite 600, Youn g stown, Ohio 44503, for Defendant-Appellant.– 2 –

Case No. 20 MA 0124 Dated: December 22, 2021
Donofrio, J.
{¶1} Defendant-appellant, Steven Guildoo, appeals from Mahoning Coun ty Court No. 3 judgments finding him guilty of criminal trespass, theft, receiving stolen property, and failing to stop afte r an accident on public roads , following a bench trial. {¶2} This case involves two unrelated incidents occurring on two sep arate dates. Both incidents involve appellant and led to criminal charges be ing filed against him. {¶3} In the first incident, on August 4, 2019, Christopher Kleinhans reported some of his stereo equipment stolen to Sebring Police Officer D omenico Marchionda. He provided the officer with receipts and serial numbers. Kleinha ns also reported that sometime prior, his car had broken down. Kleinhans had left hi s car, which had his stereo equipment in it, somewhere in Columbiana County and appellant h ad given him a ride home. As a result of Kleinhans’ report, Officer Marchionda the n went to a yard sale at appellant’s brother’s house. The officer located a car speaker at the sale that he suspected might be stolen. Upon confirming that the speaker wa s stolen, Officer Marchionda placed appellant under arrest. {¶4} On August 8, 2019, appellant was charged in Case No. 2019 CRB 0 0234 with receiving stolen property less than $300 in violation of R .C. 2913.51(A). {¶5} In the second incident, on April 2, 2020, William Baird called the police to report that he had seen a man take a catalytic converter and a “sawzall” from a truck located on his deceased neighbor’s property. Baird also report ed that after he confronted the man, they each got into their own vehicle and the man drove through a ditch, out of the driveway and struck Baird’s vehicle. The man then drove aw ay. {¶6} On April 3, 2020, appellant was charged in Case No. 2020 TRD 58 7 with failing to stop after an accident on public roads in violation of R.C. 4549.02, driving under a suspended license in violation of R.C. 4510.11, and failure t o keep an assured clear distance in violation of R.C. 4511.21(A).– 3 –

Case No. 20 MA 0124 {¶7} Also on April 3, 2020, appellant was charged in Case No. 2020 C RB 00103 with criminal trespass in violation of R.C. 2911.21 and theft o f less than $500 in violation
of R.C. 2913.02. {¶8} All cases proceeded to a bench trial on the same day. {¶9} In Case No. 2020 TRD 587, the trial court found appellant guilt y of failing to stop after an accident on public roads and not guilty of drivin g under a suspended license and failure to keep an assured clear distance. The court sente nced him to 180 days in jail, all suspended; a one-year driver’s license suspension; 24 months of reporting probation; and a $500 fine. {¶10} In Case No. 2020 CRB 00103, the trial court found appellant gu ilty of both criminal trespass and theft. On the criminal trespass convicti on, the court sentenced appellant to 30 days in jail, 30 days suspended; 24 months of r eporting probation; and a $150 fine. On the theft conviction, the court sentenced him to 180 days in jail; 90 days suspended; and a $250 fine. {¶11} In Case No. 2019 CRB 00234, the trial court found appellant gu ilty of receiving stolen property less than $300. The court sentenced appellant to 180 days in jail; 90 days suspended; to be served concurrent with his sente nce in 2020 CRB 00103; 24 months of reporting probation; and a $250 fine. {¶12} Appellant filed timely notices of appeal on November 2, 2020. He also filed motions to stay his sentences pending this appeal, which the tr ial court granted. Appellant now raises five assignments of error. {¶13} Appellant’s first four assignments of error assert that there was insufficient evidence to sustain his convictions. Thus, we will apply the s ame standard of review to each of these assignments of error. {¶14} Sufficiency of the evidence is the legal standard applied to d etermine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Dickson , 7th Dist. Columbiana No. 12 CO 50, 2013-Ohio-5293, ¶ 10 citing State v. Thompkins , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). The same standard applies when the conviction resu lts from a bench trial. State v. Nunnally , 6th Dist. Lucas No. L-89-039, 1989 WL 155213 (Dec. 22, 1989) *1. Sufficiency is a test of adequacy. Dickson, at ¶ 10, citing Thompkins , at 386. Whether– 4 –

Case No. 20 MA 0124 the evidence is legally sufficient to sustain a verdict is a qu estion of law. Id . In reviewing the record for sufficiency, the relevant inquiry is whether, af ter viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements proven beyond a reasonable doubt. Id ., citing State v. Goff , 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). When evaluating the suf ficiency of the evidence to prove the elements, it must be remembered that circumstantia l evidence has the same probative value as direct evidence. Id ., citing State v. Jenks , 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991) (superseded by state constitutional amend ment on other grounds). {¶15} Appellant’s first assignment of error states:

THE TRIAL COURT ERRED IN DENYING DEFENDANTAPPELLANT’S MOTION FOR ACQUITTAL AS TO THE CHARGE OF VIOLATION OF R.C. 2913.02 WHERE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION BY THE TRIAL COURT.

{¶16} Appellant asserts here that there was insufficient evidence to support his conviction for theft. He claims there was no evidence concerni ng where the stolen property came from and no evidence that it came from any of the vehicles located on Daryl Koran’s property. {¶17} The trial court convicted appellant of theft in violation of R .C. 2913.02(A), which provides:

No person, with purpose to deprive the owner of property or ser vices, shall knowingly obtain or exert control over either the property or s ervices in any of the following ways:
(1) Without the consent of the owner or person authorized to gi ve consent;
(2) Beyond the scope of the express or implied consent of the o wner or person authorized to give consent;– 5 –

Case No. 20 MA 0124 (3) By deception;
(4) By threat;
(5) By intimidation.

{¶18} In reviewing a sufficiency of the evidence challenge, we must examine the evidence presented by the state to determine if it presented ev idence as to each element of each offense. {¶19} The state’s first witness was Kimberly Mitchell. Mitchell’s d eceased son, Daryl Koran, had been the owner of 10040 Oyster Road. (Tr. 8). Koran died on March 6, 2020. (Tr. 8). Mitchell stated that she is the administrat or of Koran’s estate. (Tr. 9). On April 2, 2020, Koran’s estate had yet to be resolved and num erous vehicles that had belonged to Koran were still located on his Oyster Road propert y. (Tr. 9). Mitchell testified that she had never seen appellant before and she neve r gave him permission to enter her son’s property or to remove anything from it. (Tr. 1 0). {¶20} Christina Koran, Koran’s ex-wife, testified next. Christina t estified that the only people who had lived at the Oyster Road property were Kora n and their daughter. (Tr. 13). She stated she had never seen appellant before, did not know him, and that he did not have permission to be on the property. (Tr. 14). {¶21} Koran’s friend and neighbor, William Baird, was the next witne ss. Baird stated that he lived three lots down on Oyster Road from Koran. (Tr. 17). Baird testified that since Koran’s death, he had been watching over Koran’s pro perty. (Tr. 17). He stated that on April 2, 2020, he saw appellant walking on Koran ’s property with a catalytic converter and a “sawzall” in his arms. (Tr. 18). Appellant wa s about 20 feet from one of the trucks located on Koran’s property and was walking toward a ppellant’s own vehicle. (Tr. 19). Baird approached appellant and inquired as to what h e was doing there. (Tr. 20). Appellant told Baird he was visiting a friend, which Bair d knew to be untrue. (Tr. 20). {¶22} Baird testified that appellant then got into appellant’s vehicl e to get away. (Tr. 20). He stated that appellant drove through a ditch, onto the road, and then struck the rear of Baird’s car. (Tr. 20-21). Baird testified that he had been able to take photographs of appellant’s vehicle, a white suburban, and its l icense plate number. (Tr.– 6 –

Case No. 20 MA 0124 20). He then reported the incident to Smith Township Police Of ficer George Starr. (Tr. 21-22). {¶23} Officer Starr was the final witness. He stated that Baird had reported to him that appellant had taken a catalytic converter and a “sawza ll” from Koran’s property and subsequently struck his car after pulling out of Koran’s dr iveway. (Tr. 30-31). Officer Starr testified that he ran the license plate number Baird prov ided him, which revealed the vehicle was registered to Christopher Guildoo who is appell ant’s brother. (Tr. 29). The next day, the officer located appellant operating the suspe cted vehicle at a gas station. (Tr. 33). The officer observed damage on the vehicle consistent with the damage to Baird’s car. (Tr. 33). He also located a catalytic convert er in the vehicle. (Tr. 34). {¶24} Based on the above testimony, the state provided sufficient evi dence to convict appellant of theft. Baird testified that he saw appell ant on Koran’s property carrying a catalytic converter and a “sawzall.” He further tes tified that appellant fled with that property. And Officer Starr testified that he located app ellant the next day, driving the vehicle Baird had identified, with a catalytic converter in the vehicle. This evidence could lead a reasonable person to find each of the elements of R.C. 2913.02(A) proven beyond a reasonable doubt. {¶25} Accordingly, appellant’s first assignment of error is without merit and is
overruled. {¶26} Appellant’s second assignment of error states:

THE TRIAL COURT ERRED IN DENYING DEFENDANTAPPELLANT’S MOTION FOR ACQUITTAL AS TO THE CHARGE OF VIOLATION OF R.C. 2911.21 WHERE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION BY THE TRIAL COURT.

{¶27} Here appellant contends his conviction for criminal trespass w as not supported by sufficient evidence. {¶28} The court convicted appellant of criminal trespass in violatio n of R.C 2911.21(A)(1), which states:– 7 –

Case No. 20 MA 0124 (A) No person, without privilege to do so, shall do any of the following:
(1) Knowingly enter or remain on the land or premises of anothe r[.]

{¶29} Considering the evidence set out above, the state presented su fficient evidence going to each element of theft. Mitchell, Koran’s mot her and the administrator of his estate, testified that appellant did not have permission to be on the Oyster Road property. And Baird identified appellant as the person he saw on the property on the day in question. Additionally, appellant fled from the property wh en confronted by Baird, showing he knew he was on someone else’s property. {¶30} Accordingly, appellant’s second assignment of error is without merit and is
overruled. {¶31} Appellant’s third assignment of error states:

THE TRIAL COURT ERRED IN DENYING DEFENDANTAPPELLANT’S MOTION FOR ACQUITTAL AS TO THE CHARGE OF VIOLATION OF R.C. 4549.02 WHERE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION BY THE TRIAL COURT.

{¶32} Appellant argues there was insufficient evidence to support hi s conviction for failing to stop after an accident on public roads. He clai ms there was no evidence to show that any collision occurr ed on a public road or highway. {¶33} The trial court convicted appellant of failing to stop after a n accident on public roads in violation of R.C. 4945.02(A), which provides:

(1) In the case of a motor vehicle accident or collision with p ersons or property on a public road or highway, the operator of the motor vehicle, having knowledge of the accident or collision, immediately shal l stop the operator's motor vehi cle at the scene of the accident or collis ion. The operator shall remain at the scene of the accident or collision until the operator has given the operator's name and address and, if the operator is not the owner, the name and address of the owner of that motor vehicle,– 8 –

Case No. 20 MA 0124 together with the registered number of that motor vehicle, to a ll of the following:
(a) Any person injured in the accident or collision;
(b) The operator, occupant, owner, or attendant of any motor ve hicle damaged in the accident or collision;
(c) The police officer at the scene of the accident or collisio n.
{¶34} As demonstrated from the evidence set out above, the state pre sented sufficient evidence going to each element of failing to stop af ter an accident on public roads. Mitchell and Baird both testified that Koran’s property was located on Oyster Road. Baird testified that appellant drove through a ditch and then h it the rear of his car after pulling out of Koran’s driveway. Officer Starr testified that Baird reported these same facts to him. Since the accident occurred after appellant pull ed out of the driveway, it is reasonable to conclude that it occurred while appellant was on a public road. Additionally, Baird testified that appellant did not stop after the collision

. {¶35} Accordingly, appellant’s third assignment of error is without merit and is
overruled. {¶36} Appellant’s fourth assignment of error states:

THE TRIAL COURT ERRED IN DENYING DEFENDANTAPPELLANT’S MOTION FOR ACQUITTAL AS TO THE CHARGE OF VIOLATION OF R.C. 2913.51 WHERE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION BY THE TRIAL COURT.

{¶37} Appellant claims the state failed to present any evidence that he brought the stolen car speaker to his brother’s garage sale or that he knew the speaker was stolen. {¶38} The trial court convicted appellant of receiving stolen proper ty in violation of R.C. 2913.51(A), which states:– 9 –

Case No. 20 MA 0124 No person shall receive, retain, or dispose of property of anot her knowing or having reasonable cause to believe that the property has bee n obtained through commission of a theft offense.

{¶39} In the second case, the state called just one witness, Officer Domenico Marchionda. Officer Marchionda testified that on August 4, 201 9, Christopher Kleinhans came into the police station to report that a speaker system wa s stolen from his vehicle. (Tr. 54-55). As a result, Officer Marchionda started an invest igation and went to Kleinhans’ house to gather product information and serial numbe rs. (Tr. 56). Kleinhans’ statements then led the officer to a yard sale. (Tr. 57). App ellant and his brother, Christopher Guildoo, were having the yard sale. (Tr. 57). Off icer Marchionda found a stereo speaker for sale on a table. (Tr. 57). Upon double-che cking serial numbers, Officer Marchionda determined the speaker was one that was stol en from Kleinhans. (Tr. 58-59). After speaking to both brothers, the officer arrested appellant. (Tr. 60). Officer Marchionda testified that Kleinhans pointed him in appellant’s direction, in regards to who could have taken the missing stereo part. (Tr. 68). He stated that Kleinhans reported that his car had broken down prior to this day and appellant ga ve him a ride. (Tr. 70-71). Kleinhans reported that he had left his car at a location in Co lumbiana County and when he eventually went back to his c ar, the speaker was missing. ( Tr. 70-71). {¶40} Appellant now claims he did not know the speaker was stolen. But sufficient circumstantial evidence exists to support appellant’ s conviction for receiving stolen property. {¶41} Circumstantial evidence and direct evidence have the same prob ative
value. State v. Dodds , 7th Dist. Mahoning No. 05 MA 236, 2007-Ohio-3403, ¶ 88, citin g Jenks , 61 Ohio St.3d at 272. “A conviction based on purely circumst antial evidence is no
less sound than a conviction based on direct evidence.” State v. Begley , 12th Dist. Butler No. CA92-05-076, 1992 WL 379379, *2 (Dec. 21, 1992), citing State v. Apanovitch , 33 Ohio St.3d 19, 27, 514 N.E.2d 394 (1987). {¶42} The evidence in this case demonstrated that appellant gave Kle inhans a
ride when his car broke down. When Kleinhans later returned to his car, he found that stereo equipment had been stolen from it. Kleinhans reported t he stolen stereo equipment, providing receipts and serial numbers, to Officer Ma rchionda. The officer then– 10 –

Case No. 20 MA 0124 located one of the stolen items at a yard sale being held by ap pellant and his brother. This evidence, when viewed in the light most favorable to the s tate as is required in a sufficiency of the evidence determination, was sufficient on wh ich to convict appellant of receiving stolen property. {¶43} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled. {¶44} Appellant’s fifth assignment of error states:

THE TRIAL COURT ERRED IN DENYING DEFENDANTAPPELLANT’S ORAL MOTION FOR RECUSAL PRIOR TO TRIAL.

{¶45} Appellant argues that the judge should have recused himself du e to impartiality against him. Appellant claims that he has appeare d in the same court over 50 times for traffic and criminal cases and the judge would use this prior knowledge against him. {¶46} Pursuant to R.C. 2701.031:

If a judge of a municipal or county court allegedly is interest ed in a proceeding pending before the judge, allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending bef ore the judge or to a party's counsel, or allegedly otherwise is disqualified to preside in a proceeding pending before the judge, any party to the proceedin g or the party's counsel may file an affidavit of disqualification with the clerk of the supreme court.

{¶47} R.C. 2701.031 is the exclusive means by which a litigant may a ssert that a municipal court judge is biased or prejudiced. State v. Varouh , 9th Dist. Lorain, No. 18CA011415, 2020-Ohio-528, ¶ 27. When the litigant fails to fil e an affidavit of disqualification of the trial court judge with the clerk of the Supreme Court, the litigant forfeits its complaint on this subject on appeal. State v. Rhoades , 10th Dist. Franklin No. 19AP-93, 2020-Ohio-2688, ¶ 22.– 11 –

Case No. 20 MA 0124 {¶48} In this case, appellant did not file the necessary affidavit c hallenging the alleged judicial bias. Consequently, appellant has forfeited h is argument of judicial bias on appeal. {¶49} Moreover, the trial court addressed appellant’s concerns just p rior to trial. {¶50} Appellant first indicated to the court that he was worried he w ould not get a fair trial because the court had previously rejected a proposed plea deal in the case . (Tr. 4-5). The court addressed appellant’s concern stating that it has rejected many pleas when it did not feel that they were just. (Tr. 5). The court told appellant that it would not use the plea as an admission of guilt. (Tr. 5). The court tol d appellant: “I’m going to apply the law and will determine what the outcome is after hear ing all of that. So I’m going to deny that motion. I don’t believe I have any sort of conflict or any inherent bias towards you.” (Tr. 5). {¶51} Second, appellant voiced his concern that because he and his fa mily had been before the court on numerous occasions, he felt he would n ot get a fair trial. (Tr. 6). Again the court addressed appellant’s concern. The Court told him that it was not uncommon for families to have multiple members appear before a particular judge. (Tr. 6). The court told appellant: “I’m not going to look at your history. I’m not going to look at your family’s history. I’m simply going to look at the fact s of this case, apply the law and then make a fair decision.” (Tr. 6). {¶52} Here the trial court considered appellant’s concerns and assu red him that he would receive a fair and unbiased trial. Appellant has not pointed to anything in the record to demonstrate bias on the part of the court or to indic ate that he did not receive a fair trial. {¶53} Accordingly, appellant’s fifth assignment of error is without merit and is
overruled. {¶54} For the reasons stated above, the trial court’s judgements ar e hereby affirmed.

Robb, J., concurs. D’Apolito, J., concurs.[Cite as State v. Guildoo , 2021-Ohio-4553.]

For the reasons stated in the Opinion rendered herein, the assi gnments of erro r are overruled and it is the final judgment and order of this Co urt that the judgments of the Mahoning County Court No. 3, of Mahoning County, Ohio, are affirmed. Costs to be
waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.