Ohio Appellate Reports

Unpublished

STATE v. FULTON, Unpublished Decision (12-22-2006)
2006-Ohio-6807 State of Ohio, Appellee, v. Thomas Fulton,
Appellant. No. E-05-027. Court of Appeals of Ohio, Sixth
District, Erie County. Decided: December 22, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Trial Court No. 2004-CR-181.

Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary
Ann Barylski, Assistant Prosecuting Attorney for appellee.

David H. Bodiker, State Public Defender, and John A. Bay,
Chief Counsel, for appellant.

DECISION AND JUDGMENT ENTRY

GLASSER, J.

{¶ 1} This is an appeal from a judgment of the Erie
County Court of Common Pleas that found appellant guilty of
one count of having a weapon while under disability, one
count of aggravated burglary, three counts of felonious
assault and three counts of attempted kidnapping. The trial
court ordered appellant to serve a total of 35 years
imprisonment. For the following reasons, this court affirms
appellant’s convictions but remands the matter to the trial
court for resentencing pursuant to State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856.

{¶ 2} In support of his appeal, appellant sets forth
the following assignments of error:

{¶ 3} “First Assignment of Error

{¶ 4} “The trial court violated Mr. Fulton’s rights
to due process and fair trial when it convicted and
sentenced him, even though the conviction was against the
manifest weight of the evidence. (Tr., passim; Apr. 8, 2005
Judgment Entry).

{¶ 5} “Second Assignment of Error

{¶ 6} “The trial court denied Mr. Fulton due process
of law and the right to a jury trial, in violation of the
Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution, by sentencing him to prison based on
facts not found by the jury or admitted by him. (Tr.,
passim; Apr. 8, 2005 Judgment Entry).”

{¶ 7} After all briefs were submitted, appellant
requested and was granted leave to supplement briefing.
Appellant then filed the following additional assignments
of error:

{¶ 8} “Supplemental Assignment of Error I:

{¶ 9} “The trial court violated Fulton’s
constitutional right to confront witnesses by allowing the
State to introduce testimonial hearsay statements through
the testimony of Officer DeFelice. Sixth and Fourteenth
Amendments to the United States Constitution, Section 10,
Article I of the Ohio Constitution. Crawford v. Washington
(2004), 541 U.S. 36. (Vol. III, Tr. 472 and 474)

{¶ 10} “Supplemental Assignment of Error II:

{¶ 11} “Thomas Fulton was denied the effective
assistance of counsel. Sixth and Fourteenth Amendments to
the United States Constitution, Section 10, Article I of
the Ohio Constitution. (Vol. III, Tr. 54; Vol. IV, Tr.
6-11, 48; Vol. IV, Tr. 19-37)

{¶ 12} “Supplemental Assignment of Error III:

{¶ 13} “The trial court erred by imposing a six year
term of imprisonment for a repeat violent offender
specification on the basis of findings made by the trial
court pursuant to an unconstitutional statutory felony
sentencing scheme. Sixth and Fourteenth Amendments to the
United States Constitution, Section 10, Article I of the
Ohio Constitution. Blakely v. Washington (2004), 542 U.S.
296, 124 S.Ct. 2531, State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-845. (Vol. VI, Tr. 1053-54; Judgment Entry State
v. Fulton, Fulton County C.P. Case No. 2004-CR-181)”

{¶ 14} The facts relevant to the issues raised on
appeal are as follows. On April 16, 2004, appellant was
indicted on one count of having a weapon while under
disability in violation of R.C. 2923.13(B), one count of
aggravated burglary in violation of R.C. 2911.11(A)(2),
three counts of felonious assault in violation of R.C.
2903.11(A)(2), and three counts of kidnapping in violation
of R.C. 2905.01(A)(2). Each count except the first carried
a firearm specification and all eight counts carried repeat
violent offender specifications. The charges arose from the
state’s allegations that on March 12, 2004, appellant broke
into the home of Paul and Thelma Carol Ebinger while the
Ebingers and their adult daughter Doreen were present,
assaulting the family and preventing them from leaving.

{¶ 15} Appellant entered pleas of not guilty to each
count in the indictment and the matter proceeded to a jury
trial. During trial, the state moved to amend the three
kidnapping charges in the indictment to attempted
kidnapping. The motion was granted. On April 5, 2005, the
jury found appellant guilty of all counts. Appellant’s
aggregate sentence was 35 years. This timely appeal
followed.

{¶ 16} In his first assignment of error, appellant
asserts that his conviction was against the manifest weight
of the evidence. Appellant argues that the evidence
presented by the state was contradictory and confusing and
more consistent with his version of events than with the
state’s account.

{¶ 17} The “weight of the evidence” refers to the
jury’s resolution of conflicting testimony. State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In
determining whether a verdict is against the manifest
weight of the evidence, the appellate court sits as the
“thirteenth juror” and “* * * weighs the evidence and all
reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in
the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” Id. If the
prosecution presented substantial evidence upon which the
trier of fact reasonably could conclude, beyond a
reasonable doubt, that the essential elements of the
offense had been established, a reviewing court will not
reverse the judgment of conviction as against the manifest
weight of the evidence. State v. Eley (1978), 56 Ohio St.2d
169, syllabus.

{¶ 18} We note that appellant does not present
specific arguments as to each of the separate charges
against him, but claims in general that the evidence
supported his defense that he went to the victims’ home to
discuss money Paul Ebinger owed him for guns he said he sold
Paul nearly 20 years ago.

{¶ 19} It is primarily for the factfinder to
determine the credibility of the witnesses and the weight
to be given to their testimony, because the factfinder has
the opportunity to see and hear the witnesses and observe
their demeanor. State v. DeHass (1967), 10 Ohio St.2d 230,
231.

{¶ 20} Paul, Thelma and Doreen Ebinger all testified
as to the events of March 12, 2004, and identified
appellant as the person who broke into their home.
Appellant was wearing a ski mask which he pulled down after
he entered the house. Paul Ebinger, who was 69 years old at
the time, testified that after appellant came through their
back door and into the kitchen, he and appellant struggled,
both ending up on the kitchen floor. Paul attempted to grab
the gun from appellant and picked it up after it fell to
the floor. Paul recalled shooting appellant several times
before appellant ran out the back door, got into his car and
drove away.

{¶ 21} Thelma Ebinger, 66 at the time of the
burglary, testified that she had walked into the kitchen
when she heard appellant come in and said he ordered her to
go to the living room. She stated he was wearing jeans, a
denim jacket and a dark ski cap which he pulled over his
face as he walked in. Appellant told Thelma and Doreen to
sit in the living room. After her husband and appellant
began to struggle she heard two gunshots. She then went
into the bedroom and got a gun, at the same time telling
Doreen to call 9-1-1. Thelma went into the kitchen, aimed
the gun and pulled the trigger but the gun was not loaded.
She hit appellant on the head with the gun and then went
back to the bedroom, returning with another gun. When the
second gun failed to fire, she again struck appellant on
the head several times until his gun fell on the floor. She
testified that she recalled hearing four gunshots in the
kitchen during the struggle.

{¶ 22} Doreen Ebinger testified that she was in her
parents’ bedroom when appellant came in. He was wearing a
ski mask, but did not pull it over his face right away. As
she walked into the living room, appellant told her to stay
there. She further testified that she saw appellant take a
gun out of his pocket as he and her father walked into the
living room. She stated that when appellant pointed the gun
at her father, the men began to struggle, ending up in the
kitchen. Doreen then called 9-1-1. She testified that she
heard two gunshots come from the kitchen. She further
stated that while her father and appellant were fighting
she saw her mother go into the bedroom twice, coming out
with a gun each time. Doreen testified that she heard at
least five gunshots.

{¶ 23} Deputy Beth Beatty testified that she was the
first officer to arrive on the scene. Thelma Ebinger, who
was frantic and visibly shaken, met her in the driveway.
One of Thelma’s hands was bloody. As they walked to the
house, Doreen came out and also appeared shaken and upset.
When Beatty and Sergeant Kautz, the next officer to arrive,
walked in the back door they saw Paul Ebinger standing
there with a gun in his hand. The deputy testified that
Paul did not want to hand over the gun and “appeared to be
in fear of his life.” Sergeant Kautz had to grab Paul’s arm
in order to remove the gun from his hand, which was covered
in blood. Beatty observed a handgun on the kitchen floor,
which she was later told was the gun used in the shooting.
Doreen gave Beatty a description of the vehicle driven by
their assailant, which the officer relayed to dispatch.
Paul told the officers he thought he had shot the intruder.
Beatty spoke to Thelma, who also was frantic and visibly
shaken. Sergeant Kautz testified that when he arrived on the
scene, Thelma and Doreen were “highly excited to the point
of being terrified.” He testified further that when he saw
Paul in the doorway the man was shaking. He ordered Paul to
put the gun down but Paul was afraid the intruder was going
to return. Kautz told Paul the officers had secured the
scene and pulled the gun from his hand.

{¶ 24} Detective Robert Lippert testified that
shortly after he arrived on the scene he received a call
telling him that an ambulance had been dispatched to an
auto dealership about ten miles from the Ebingers’ home
after a man drove up and told someone he had been shot. The
detective later determined the injured individual was
appellant. When the detective processed the scene, he found
several bullet holes in the kitchen but was unable to
recover any slugs. Lippert testified that when he searched
appellant’s car he found a denim jacket matching the
description given by the victims soaked in blood with
several bullet holes in it. In the jacket pocket was a roll
of duct tape and in the car was a receipt for duct tape
purchased the morning of the burglary. The fresh roll of
tape was opened and folded back on the end to make it
easier to unroll. He also found a gun holster under the
driver’s side of the front seat and a black or navy blue
ski mask on the seat. The gun found on the kitchen floor
fit perfectly into the holster. Lippert confirmed that none
of appellant’s blood was found at the scene. He testified
there were several reasons for that: appellant was shot with
a .22 caliber round, which does not normally cause a lot of
damage; none of appellant’s major arteries were hit; he
left the house right after he was shot, and his several
layers of clothing — a thermal shirt, sweatshirt and
jacket — absorbed a lot of blood initially. The
detective testified that Paul Ebinger was not able to
recall exactly how many times he fired the gun at
appellant. {¶ 25} Appellant testified that in April
2003, he called Paul Ebinger inquiring about $5,000 Paul
owed him. He testified he saw Paul again in November 2003
and January 2004, when he and two other men went to Paul’s
house to deliver firewood. Appellant testified that he
robbed a gun shop in 1987, and sold the guns and some other
items to Paul for $6,500. He stated that Paul gave him
$1,500 at that time and agreed to give him the remaining
$5,000 within a few weeks. Appellant testified that shortly
thereafter he was arrested and convicted for the robbery
and served 16 years in prison. He further testified that
Paul never gave him the rest of the money. He stated that
in February 2004, after he was released from prison, he went
to Paul’s house to try to get the money but was
unsuccessful. Appellant further testified that he went to
Paul’s house again on March 12, 2004, to try to “smooth
things over.” He stated that when he drove up to the house,
Paul was in his garage working on a car. He testified that
as he walked toward the garage, Paul reached for a gun and
the two men struggled, ending up on the ground in the
garage. He testified further that as they struggled Paul’s
wife attempted to shoot him but missed. Appellant stated
that he stepped away from Paul and was shot several times
when he tried to get the gun. He denied taking a gun with
him to the Ebingers’ home. Appellant further testified that
the gun holster found in the car he was driving on the day
of the robbery belonged to his girlfriend’s sons.

{¶ 26} On cross-examination, appellant admitted he
had a prior conviction for aggravated robbery and two
counts of kidnapping. In that offense, the victims were
elderly and he admitted he sprayed one of them in the eyes
with mace. He also admitted to convictions for theft of a
firearm and grand theft, as well as another aggravated
robbery in which the victims were two elderly men who were
assaulted and bound with duct tape.

{¶ 27} When the prosecutor informed appellant she
had an audiotape of phone calls he made from jail that
morning, appellant admitted calling his ex-wife, who was
going to be one of his witnesses, and telling her to be
sure to “study [her] notes” before testifying.

{¶ 28} The jurors in this case obviously chose to
believe the version of events as relayed by the victims and
the other witnesses introduced by the state. Contrary to
appellant’s assertion, the evidence presented by the state
was not contradictory or confusing and did not support his
claim that he merely went to the Ebingers’ home to talk to
Paul. Upon thorough review of the transcript of the trial,
we are unable to find that the trial court lost its way or
created a manifest miscarriage of justice by finding
appellant guilty of having a weapon under disability,
aggravated burglary, attempted kidnapping, felonious
assault, having a firearm under his control while
committing the offenses, and being a repeat violent
offender. Based on the foregoing, appellant’s first
assignment of error is not well-taken.

{¶ 29} In the interest of clarity, we will address
the remainder of appellant’s assignments of error out of
order.

{¶ 30} In his first supplemental assignment of
error, appellant asserts that his right to confront
witnesses was violated when the court allowed the state,
through the testimony of one of the investigating officers,
to introduce statements he claims constituted hearsay.
Appellant argues that Officer DeFelice improperly recounted
testimony given by one of appellant’s co-defendants at
appellant’s 1987 trial for robbing a gun shop. Appellant
cites Crawford v. Washington (2004), 541 U.S. 36, for its
holding that the Confrontation Clause bars the introduction
of testimonial out-of-court statements made by a witness
not present at trial unless the declarant is unavailable and
the defendant had a prior opportunity to cross-examine.

{¶ 31} At trial, the state questioned Officer
DeFelice about appellant’s prior record in order to prove
the repeat violent offender specifications attached to each
of the eight counts. In so doing, the state asked the
officer about his investigation several years earlier of a
theft which led to appellant’s convictions for aggravated
robbery, kidnapping, theft of firearm with a specification
of a prior offense of violence, and grand theft with a
specification of a prior offense of violence. The state
then asked the officer if any of the stolen firearms were
recovered. Officer DeFelice answered that only one was
recovered and stated that he did not know what happened to
the others. The state then asked, “Was there any indication
that they were taken to Michigan?” Officer DeFelice
responded, “There was a statement by a codefendant that
they were taken to Michigan.”

{¶ 32} Appellant asserts that the statement that his
codefendant said the firearms were taken to Michigan
violated his right of confrontation.

{¶ 33} First, we note that trial counsel did not
object to the prosecutor’s question about the stolen guns
or the officer’s answer. Because defense counsel failed to
object to the alleged improper testimony, appellant waived
all but plain error. State v. Slagle (1992), 65 Ohio St.3d
597, 604, certiorari denied (1996), 516 U.S. 1052; Crim.R.
52(B). “When a court of appeals engages in a plain-error
analysis, it must conduct a complete review * * * in order
to determine whether a manifest miscarriage of justice has
occurred that clearly affected the outcome of the trial.”
State v. Hill (2001), 92 Ohio St.3d 191, 2001-Ohio-141,
syllabus. In other words, we must determine whether the
jury would have convicted appellant even if the alleged
errors had not occurred. Slagle, supra, at 605. “Notice of
plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Long
(1978), 53 Ohio St.2d 91, paragraph three of the syllabus.

{¶ 34} This court has considered the entire record
of proceedings that was before the trial court and, upon
consideration of the abundant testimony supporting
conviction, we find no indication that a manifest
miscarriage of justice occurred that clearly affected the
outcome of appellant’s trial. We are unable to find that
the statement referring to some stolen guns being taken to
Michigan 20 years ago affected the outcome of appellant’s
trial. Accordingly, Officer DeFelice’s statement does not
rise to the level of plain error. Appellant’s first
supplemental assignment of error is not well-taken.

{¶ 35} In his second supplemental assignment of
error appellant asserts he was denied effective assistance
of counsel because counsel did not object to the testimony
discussed above. Because we determined that the statement
was not prejudicial and did not affect the outcome of the
trial, defense counsel’s decision not to object to the
testimony does not mandate a finding of ineffective
assistance of counsel. See State v. Smith (2000), 87 Ohio
St.3d 424, 440, 2000-Ohio-450. Appellant’s second
supplemental assignment of error is not well-taken.

{¶ 36} We will address appellant’s second assignment
of error in his original brief and the third assignment of
error in his supplemental brief together as both raise
sentencing issues. Appellant’s original second assignment
of error was filed January 17, 2006, which was five weeks
before the decision of the Supreme Court of Ohio in State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 was released. In
that assignment of error, appellant asserts the trial court
relied at sentencing on findings that had not been made by
a jury or admitted by him. Since it was drafted pre-Foster,
appellant’s original argument relied on the decision of the
United States Supreme Court in Blakely v. Washington
(2004), 542 U.S. 296, which held that a sentencing court
may not impose a non-minimum sentence based on factual
findings neither admitted by the defendant nor found by a
jury. In response to appeals based on Blakely, this court
subsequently determined that the Blakely decision was not
applicable to Ohio’s sentencing statutes. See, e.g., State
v. Curlis, 6th Dist. No. WD-04-032, 2005-Ohio-1217.
However, in February 2006, the Supreme Court of Ohio
followed Blakely and held that portions of this state’s
sentencing statutes violated a defendant’s Sixth Amendment
right to a trial by jury. State v. Foster, 109 Ohio St.3d
1, 2006-Ohio-856. The Foster court severed those statutes,
thereby allowing trial courts full discretion when imposing
prison sentences in most situations. Foster at ¶ 100.
Foster directed that any case pending on direct review
at the time of its release be remanded to the trial court
for a new sentencing hearing in accordance with its
holding. Foster at ¶ 104. Foster was decided on
February 27, 2006; appellant’s appeal was pending before
this court at that time.

{¶ 37} As his third supplemental assignment of
error, filed after the Foster decision was released,
appellant asserts on authority of Foster that the trial
court erred by relying on one of the severed statutes when
it imposed sentence for the repeat violent offender
specification.

{¶ 38} The trial court, in reliance on now-severed
statutes, sentenced appellant to the maximum sentences for
having a weapon while under disability, aggravated
burglary, felonious assault and attempted kidnapping.
Appellant also was sentenced to three years for a firearm
specification and six years for the repeat violent offender
specification. Some of the sentences were ordered served
concurrently and others were ordered to be served
consecutively. When imposing appellant’s sentences, the
trial court referenced R.C. 2929.14(B), (C), (D) and (E),
all of which were severed by the Foster decision.

{¶ 39} Because Foster followed Blakely, we find
appellant’s second original assignment of error well-taken.
Additionally, appellant’s third supplemental assignment of
error is well-taken in light of State v. Foster, supra.

{¶ 40} On consideration whereof, the judgment of the
Erie County Court of Common Pleas is affirmed as to
appellant’s conviction but reversed as to his sentence and
remanded for a new sentencing hearing in conformity with
Foster, supra. Appellant and appellee are ordered to share
equally the costs of this appeal pursuant to App.R. 24.

Judgment for the clerk’s expense incurred in preparation of
the record, fees allowed by law, and the fee for filing the
appeal is awarded to Erie County.

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.

Peter M. Handwork, J., William J. Skow, J., George M.
Glasser, J., CONCUR.

Judge George M. Glasser, retired, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio.

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.sconet.state.oh.us/rod/newpdf/?source=6.