[Cite as State v. Stults, 2019-Ohio-657.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio Court of Appeals Nos. L-18-1036 

 

 Appellee Trial Court Nos. CR0201703012 

v. 

Ricky Kenneth Stults DECISION AND JUDGMENT

Appellant Decided: February 22, 2019 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. 

 Laurel A. Kendall, for appellant. 

* * * * * 

 SINGER, J. 

{¶ 1} Appellant, Ricky Stults, appeals the April 9, 2018 judgment of the Lucas 

County Court of Common Pleas, where he was convicted of burglary in violation of R.C. 

2911.12(A)(1) and (D), a felony of the second degree. Finding no error, we affirm. 
2.

Assignments of Error 

I. The court abused its discretion by denying appellant’s motion for 

acquittal pursuant to Crim.R. 29 when there was no positive identification 

of appellant in the court room. 

II. Appellant’s conviction for burglary, a felony of the second 

degree, was against the sufficiency and manifest weight of the evidence. 

III. Appellant received ineffective assistance of counsel because 

defense counsel did not file a motion in limine objecting to the introduction 

of evidence which was intended to implicate defendant in a prior criminal 

matter. 

Background 

 

{¶ 2} On August 12, 2017, appellant was alleged to have entered into the business 

establishment NINE in Toledo, Ohio, without authorization. The restaurant building 

(“building”) was closed to the public, and various employees were present. Appellant 

was allegedly captured on video by security cameras consuming and taking various 

items. 

{¶ 3} On November 17, 2017, appellant was indicted for burglary in violation of 

R.C. 2911.12(A)(1) and (D), a felony of the second degree. Appellant pled not guilty and 

the matter proceeded to trial. 

{¶ 4} At trial, a NINE staff member, a patrol officer, and a detective testified. 

Photographic evidence from the scene of the crime was presented and submitted in the 
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record and, on February 14, 2018, the jury found appellant guilty of burglary. The matter 

was set for sentencing on February 23, 2018. 

{¶ 5} At sentencing, the trial court determined that, because appellant had been 

previously found guilty and convicted of burglary, R.C. 2929.13(F)(6) applied. As a 

result, the trial court sentenced appellant to a mandatory prison term of eight years. 

{¶ 6} The sentencing entry was journalized on February 26, 2018. This journal 

entry incorrectly reflected that appellant was convicted under R.C. 2911.12(A)(2) and 

(D). A nunc pro tunc entry reflecting the proper code section was journalized April 9, 

2018. Appellant now appeals. 

Assignment of Error Nos. I and II 

{¶ 7} In his first and second assigned errors, appellant asserts there was neither 

sufficient nor competent, credible evidence for the court to have proceeded to the jury, 

for the jury to have found him guilty, or for the court to have convicted him. Appellee 

asserts there was sufficient and competent, credible evidence to support the verdict and 

conviction. 

{¶ 8} Crim.R. 29 motions for acquittal are reviewed under the same standard as a 

sufficiency of the evidence claim. State v. Hollstein, 6th Dist. Lucas No. L-08-1184, 

2009-Ohio-4771, ¶ 28. Whether there is sufficient evidence to support a conviction is a 

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In 

reviewing a challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether, 

after viewing the evidence in a light most favorable to the prosecution, any rational trier-
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of-fact could have found the essential elements of the crime proven beyond a reasonable 

doubt.” (Internal quotations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 

668 (1997). Appellate courts will not weigh evidence or assess credibility of the 

witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978). 

{¶ 9} In reviewing the manifest weight of the evidence, the court is to determine 

whether the greater amount of credible evidence supports the conviction. See Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, citing Thompkins

at 387. This court, as if the “thirteenth juror” must review the record, weigh the evidence 

and all reasonable inferences drawn from it, consider the witnesses’ credibility and 

decide, in resolving any conflicts in the evidence, whether the trier-of-fact “clearly lost its 

way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.” See State v. Steed, 6th Dist. Wood No. WD-15-069, 

2016-Ohio-8088, ¶ 51, citing State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio 6048, 

943 N.E.2d 1092 (6th Dist.). 

{¶ 10} In this case, appellant specifically challenges the sufficiency and manifest 

weight of the evidence because he argues appellee failed to provide an open court, 

positive identification of him as the perpetrator shown in the surveillance video and 

photos submitted in the record. Appellant asserts no other evidence, including 

fingerprints or DNA test results, linked him to the crime. Appellant argues that 

appellee’s entire case depended on the developed description of the perpetrator from the 

camera footage, and that at trial no one properly identified him as the individual in the 
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footage. Appellant notes that it is axiomatic that a conviction requires an identification of 

the accused. 

{¶ 11} Appellee counters, specifically arguing that Ohio law imposes no 

requirement that a criminal defendant be visually identified in court. Appellee asserts 

that the photographic evidence is a silent witness which speaks for itself and is 

substantive evidence of what it portrays independent of a sponsoring witness. Appellee 

further notes that Detective William White testified about appellant’s appearance, 

clothing, personal belongings, and demeanor, and testified that he was sure appellant was 

the perpetrator seen in the video. 

{¶ 12} White’s identification was based on appellant having matching clothing, 

backpack, and flashlight. Appellee, lastly, concludes that the jury was left to determine 

what weight to give the photographic evidence and identification because the evidence 

was admitted without objection. 

{¶ 13} R.C. 2911.12(A)(1) provides that “[n]o person, by force, stealth, or 

deception, shall * * *[t]respass in an occupied structure * * *, when another person other 

than an accomplice of the offender is present, with purpose to commit in the structure * * 

* any criminal offense[.]” See State v. McCreary, 6th Dist. Lucas No. L-15-1206, 2016-

Ohio-4753, ¶ 11. Division (D) of that section follows with, “[w]hoever violates division 

(A) of this section is guilty of burglary, and a “violation of division (A)(1) or (2) of this 

section is a felony of the second degree.” An “occupied structure” is any building when 
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“any person is present or likely to be present in it.” See R.C. 2911.12(D); R.C. 

2909.01(C)(4). 

{¶ 14} Here, we find surveillance recordings and photographs submitted in the 

record show the perpetrator entering and roaming the building, and helping himself to 

items while there. Testimony from the operation manager for NINE, Joshua Porter, 

revealed that the perpetrator was not welcomed as he entered an unlocked door of the 

building and while employees were present, all in an effort to commit numerous thefts. 

We are satisfied the perpetrator committed a burglary as defined in R.C. 2911.12(A)(1). 

The question then becomes was there sufficient and competent, credible evidence to 

support that the perpetrator was indeed appellant. 

{¶ 15} Detective White testified he was 100 percent sure that the individual in the 

photographs and recordings was appellant. Our review of the record reveals White based 

his identification on a past interview and investigation of another crime appellant 

allegedly committed. White testified appellant had the same clothing, backpack, 

flashlight, and demeanor as the perpetrator, and we find no issue with the identification. 

See R.C. 2945.55 (“When identification of the defendant is an issue, a witness who has 

on previous occasion identified such person may testify to such previous identification.”). 

{¶ 16} The jury agreed with White and determined the circumstantial evidence 

was sufficient to find appellant was indeed the perpetrator. 

{¶ 17} With respect to the sufficiency of the evidence in the record, we note that 

“[c]ircumstantial evidence of a crime has the same probative value as direct evidence and 
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is sufficient to prove the elements of a criminal case.” McCreary, 6th Dist. Lucas No. L15-1206, 2016-Ohio-4753, at ¶ 20, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 

492 (1991), paragraph two of the syllabus. We find the circumstantial evidence in the 

record sufficient, because viewing it in a light favorable to the prosecution leads us to 

determine that any rational trier-of-fact could have found the essential elements of 

burglary proven beyond a reasonable doubt. See R.C. 2911.12(A)(1), supra. 

{¶ 18} With respect to our analysis of the manifest weight of the evidence, it is 

understood that “[w]hen considering circumstantial or direct evidence, ‘a jury is asked to 

weigh the chances that the evidence correctly points to guilt against the possibility of 

inaccuracy or ambiguous inference.’” Id., quoting Holland v. United States, 348 U.S. 

121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Moreover, this court “must give due 

deference to the findings made by the jury.” Id., citing Thompkins, 78 Ohio St.3d at 387, 

678 N.E.2d 541. Consequently, we cannot say that the circumstantial evidence weighs 

heavily against convicting appellant, and there is nothing in the record to find the jury 

lost its way or that a manifest miscarriage of justice resulted in the jury’s finding of guilt. 

{¶ 19} Accordingly, appellant’s first and second assignments of error are not welltaken. 

Assignment of Error No. III 

{¶ 20} In appellant’s third assigned error, he asserts he had no effective assistance 

of counsel because appellee failed to provide notice of its plan to use 404(B) evidence, 

and that his counsel did not file a motion in limine to preclude admission of such 
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evidence. Appellee contends the 404(B) evidence was offered to show identity of the 

perpetrator and that, because appellant had access to appellee’s open file during 

discovery, any error related to its failure to notify of such use of the 404(B) evidence was 

cured. 

{¶ 21} In evaluating ineffective assistance of counsel claims, the test is “whether 

the accused, under all the circumstances, * * * had a fair trial and substantial justice was 

done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the 

syllabus; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 

L.Ed. 2d 674, 693 (1984). A court must determine “whether there has been a substantial 

violation of any of defense counsel’s essential duties to his client” and “whether the 

defense was prejudiced by counsel’s ineffectiveness.” State v. Calhoun, 86 Ohio St.3d 

279, 289, 714 N.E.2d 905 (1999). 

{¶ 22} In this case, appellant specifically argues that he did not receive effective 

assistance because counsel “made no attempt to suppress the testimony about [his] 

identification being linked to a suspect in a different case who was wearing substantially 

the same clothing, and which Detective William White in the case used as the basis for 

his identification.” Appellant notes how White testified that he had interviewed appellant 

a day or two before viewing the surveillance video, and that appellant was wearing 

similar clothing to those worn by the suspect in the video. Appellant argues counsel’s 

failure to object to this testimony resulted in prejudice because, “without the testimony 
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about similar clothing, and without a positive identification in the court room, there was 

no evidence introduced that appellant was the suspect in the case.” 

{¶ 23} Appellee responds, specifically asserting that the video spoke for itself and 

that counsel did not commit error in failing to challenge the 404(B) evidence because 

such challenge would have been futile. Appellee notes that it provided appellant with 

open-file discovery, which it argues, provided “reasonable notice in advance of trial” of 

its intent to use the 404(B) evidence. Appellee otherwise concedes it used 404(B) 

evidence, and that it did not provide formal notice of its intent to introduce that evidence. 

(B) Other crimes, wrongs or acts. Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a person in order 

to show action in conformity therewith. It may, however, be admissible for 

other purposes, such as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. In criminal 

cases, the proponent of evidence to be offered under this rule shall provide 

reasonable notice in advance of trial, or during trial if the court excuses 

pretrial notice on good cause shown, of the general nature of any such 

evidence it intends to introduce at trial. (Emphasis added.) 

Compare State v. Nuzum, 6th Dist. Lucas No. L-15-1122, 2016-Ohio-2744, with State v. 

Kelley, 2017-Ohio-4475, 83 N.E.3d 990 (6th Dist.). 

{¶ 24} We first note that we are not persuaded by appellee’s contention that openfile discovery cures any failure to provide notice in compliance with Evid.R. 404(B). As 
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articulated in dicta of State v. Plevyak, 11th Dist. Trumbull No. 2013-T-0051, 2014-

Ohio-2889, “[t]here is a difference between a defendant knowing the state possesses 

‘other acts’ evidence and a defendant knowing the state intends to use it at trial.” Plevyak

at ¶ 18. Moreover, “[a] defendant’s decision to go forward at trial may well depend on 

what evidence the state intends to introduce[,] and “[i]f providing discovery alone were 

sufficient to satisfy the notice requirements of Evid.R. 404(B)[,] the rule would be 

superfluous.” Id. 

{¶ 25} Nevertheless, even accepting that appellee here failed to provide proper 

notice of its intent to use 404(B) evidence, and that appellant’s counsel failed to meet an

essential duty to his client by not objecting to such use, appellant has to show he was 

prejudiced. To do so, appellant must prove “that there exists a reasonable probability 

that, were it not for counsel’s errors, the result of the trial would have been different.” 

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the 

syllabus. 

{¶ 26} Here, appellant argues that appellee’s evidence which referenced the 

perpetrator’s possible prior criminal involvement in an unrelated matter constituted 

prejudicial error. He specifically points to testimony of Detective White, arguing that it 

provided the jury with impermissible inferences. At trial, the testimony was elicited and 

set forth in the record, as follows: 

[Appellee]: Okay. So Officer Eilerts said he completed a general 

offense report? 
11.

[White]: Correct. 

[Appellee]: And passed it on to you, did you review that report? 

[White]: I did. 

[Appellee]: Okay. And had as a detective, I’m sorry, Officer Eilerts 

said it had a name in it; is that correct? 

[White]: It did. 

[Appellee]: That was for Ricky Stults? 

[White]: Correct. 

[Appellee]: And it had a description of his clothing? 

[White]: Yes. 

[Appellee]: And a description of him? 

[White]: Yes. 

[Appellee]: And you said you had encountered the defendant a 

couple days prior; is that correct? 

[White]: The day prior. 

[Appellee]: The day prior, okay. And you had a chance to either 

interview him or watch him being interviewed; is that correct? 

[White]: Correct. 

[Appellee]: Okay. And during that interview was there anything 

about his appearance that seemed relevant to the case that we had before the 

jury today? 
12.

[White]: Yes. 

[Appellee]: And what was the relevance and what did you see? 

[White]: During the interview I was assisting another detective, 

actually training him, on a theft case from a store where he was 

apprehended. And during that interview I recall that he was wearing a very 

similar, if not identical, clothing that was described in the general offense 

report as well as the fact that he appeared to be the same person in the 

video, in that video that I watched when I finally did get it, and in that 

video he was wearing a mustache at that time. 

[Appellee]: Okay. So summarize what you’re saying there a little 

bit. You saw him the day prior, the defendant? 

[White]: Correct. 

[Appellee]: And he was wearing clothing that seemed to match the 

clothing that he was wearing in the burglary in your case? 

[White]: Correct. 

{¶ 27} In addition to this testimony, White further elaborated on appellant’s 

appearance based on his past investigatory interview. 

{¶ 28} Appellant argues that absent impermissible inferences relating to criminal 

propensities and linking past criminality derived from this testimony, his trial outcome 

would have been different. Appellant hence concludes that the failure to object or 
13.

attempt to suppress the evidence was prejudicial. He directs this court to State v. 

Breedlove, 26 Ohio St.2d 178, 271 N.E.2d 238 (1971), to support his position. 

{¶ 29} The Breedlove court found that “under the circumstances” in that case, it 

was “unjustifiable for the state, on direct examination, to present police mug shots, 

bearing police identification numbers, from which a reasonable inference can be drawn 

that the defendant, at some indefinite time in the past had had trouble with the law.” Id. 

at 184. 

{¶ 30} In Breedlove, the prosecution, “in an effort [to] bolster the in-court 

identification by the state’s witnesses of Breedlove as the perpetrator[,]” presented 

“evidence of an out-of-court selection by the witnesses of appellant’s photograph from a 

group of mug shots[.]” Id. at 181. Mr. Breedlove argued the trial court allowing the 

testimony and pictures into evidence resulted in reversible error. Id. The Breedlove court 

agreed. Id. at 184. 

{¶ 31} The Breedlove court began its analysis by referencing R.C. 2945.55, infra, 

there recognizing that “[u]nder proper circumstances, an out-of-court identification is 

admissible when defendant’s identity is an issue.” Id. at 181. The court stated that the 

“first question” was “whether, under R.C. 2945.55, testimony concerning an out-of-court 

identification of the accused from a selection of photographs is admissible in evidence.” 

Id. The follow-up question was: “if such identification is admissible, may mug shot from 

police files, with police numbers thereon, be so used and later admitted in evidence?” Id. 

at 182. 
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{¶ 32} In answering these questions, the Breedlove court held that it was 

unjustifiable for the state to present the evidence. Id. at 184. The court stated that 

“[e]vidence of prior criminal involvement must satisfy the requirements of R. C. 

2945.59,” which the court found the photographs submitted in the record did not. Id. 

{¶ 33} Appellee counters by pointing to State v. Grega, 11th Dist. Ashtabula No. 

2012-A-0036, 2013-Ohio-4094, where the trial court’s ruling that an officer’s 

identification of the defendant despite reference to the defendant’s prior criminality was 

not reversible error. The Grega court, after recognizing the exceptions stated in 404(B), 

explained that “[u]nder the ‘identity’ exception in the foregoing rule, testimony regarding 

a police officer’s prior encounter with the defendant is admissible for purposes of 

showing why the officer was able to recognize him.” Id. at ¶ 41, citing State v. Tuff, 11th 

Dist. Lake Nos. 2010-L-082 and 2010-L-083, 2011-Ohio-6846, ¶ 46. 

{¶ 34} Appellant urges us to apply the rationale and holding of Breedlove, and 

appellee urges us to apply the rationale and holding of Grega. 

{¶ 35} Initially, we agree the photographic evidence and testimony submitted in 

the record in this case were admissible under the “identity” exception recognized in 

Evid.R. 404(B). We note Evid.R. 404 was not enacted in 1971, when Breedlove was 

released. 

{¶ 36} Further, we find that appellee failed to notify appellant of its intended use 

of the 404(B) evidence, but that there exists no reasonable probability that the result of 

the trial would have been different. 
15.

{¶ 37} We look to two of our recent cases to reach this determination. 

{¶ 38} First, in State v. Kelley, 2017-Ohio-4475, 83 N.E.3d 990 (6th Dist.), we 

reversed the trial court’s holding and determined that in those unique circumstances the 

prosecution’s introduction, without notice, of evidence of acts germane to the offense 

charged, which occurred outside the period set forth in the indictment, constituted plain 

error. Id. at ¶ 1. 

{¶ 39} In an effort to prove Kelley took part in fraudulently applying and 

maintaining Medicaid benefits, the state introduced evidence of other allegedly 

fraudulent acts of his. These other acts were wholly unrelated to the charges in the case 

and were actually from a time period outside of the dates of the indictment. Kelley 

argued in relevant part that “admission of the evidence was prejudicial and would have 

‘confused the jury as to [his] guilt on the conduct charged.’” See id. at ¶ 43. The state 

countered, arguing that the other acts evidence was admissible under Evid.R. 404(B) and 

R.C. 2945.59. The state further argued that notice of its intent to use the 404(B) evidence 

was not required because R.C. 2945.59 did not explicitly say the requirement. 

{¶ 40} We disagreed and found that notice of intent to use 404(B) evidence was 

indeed required despite R.C. 2945.59 not explicitly stating it. Id. at ¶ 46. We found that 

“the state ran afoul of the notice requirement in Evid.R. 404(B)[.]” Under the plain-error 

standard, we determined that “the failure to provide pretrial disclosure of the above other 

acts evidence substantially impaired [Kelley]’s rights to due process of law.” Id. at ¶ 49. 
16.

Hence we found that “the error [of not providing notice] affected the accused’s 

substantial rights.” 

{¶ 41} The stated policy and rationale behind our decision in Kelley was 

summarized as “[n]ot only does the notice requirement found in Evid.R. 404(B) facilitate 

litigation of the magnitude of the offense charged, it provides the person against whom 

such evidence may be admitted with a fair opportunity to prepare to meet the impact of 

evidence of uncharged offenses.” However, we note this overarching policy and 

rationale does not apply in all instances the state fails to notify of its intent to use 404(B) 

evidence. 

{¶ 42} For example we point to State v. Nuzum, 6th Dist. Lucas No. L-15-1122, 

2016-Ohio-2744, where we held that despite the state’s failure to provide notice of its 

intent to use 404(B) evidence, “such error was harmless in light of our conclusion that the 

state’s alleged introduction of other acts evidence did not affect the outcome of the trial 

or otherwise prejudice appellant.” Id. at ¶ 21. 

{¶ 43} We found that, despite the 404(B) evidence or lack of notice thereof, the 

outcome of the case would not have been different because there was otherwise sufficient 

and competent, credible evidence to support Nuzum was the perpetrator. Id. at ¶ 17. In 

specific, there was witness testimony from those at the scene of the crime, and we found 

it demonstrated Nuzum committed the burglary for which he was charged. Id. 

{¶ 44} Consistent with Nuzum and Grega, yet distinguishable from Kelley and

Breedlove, we find appellant in this case cannot show the outcome of his case would have 
17.

been different had he been notified of the 404(B) evidence, or had that evidence not been 

introduced. As noted above, we found that circumstantial evidence in the record supports 

appellant was the perpetrator, and that the trier-of-fact properly evaluated the 

photographic evidence and weighed it to determine that it spoke for itself. 

{¶ 45} As a result, we now hold that even if appellant would have received proper 

notice of appellee’s intent to use the 404(B) evidence or, alternatively, even if White did 

not testify and the clothing evidence was excluded, there was sufficient and competent, 

credible evidence to find appellant guilty and convict him. Therefore, we cannot say that 

the introduction of the 404(B) evidence prejudiced appellant, or that his trial counsel was 

ineffective for failing to challenge the introduction of that evidence. 

{¶ 46} Accordingly, appellant’s third assigned error is not well-taken. 

Conclusion 

{¶ 47} The April 9, 2018 judgment of the Lucas County Court of Common Pleas 

is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 
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This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.