The Akron Legal News

Flimsy alibi leads court to affirm conviction for Richland County man

ANNIE YAMSON
Special to the Legal News
Published: August 5, 2013

The 5th District Court of Appeals recently affirmed the decision of the Richland County Court of Common Pleas convicting George Troche of burglary and theft of drugs.

Troche appealed from the judgment entry of the county court after a jury trial resulted in a guilty verdict and he was sentenced to an aggregate sentence of three years’ incarceration.

The charges stemmed from a Nov. 7, 2011 break-in at the residence of Richard Minor.

Money, medications, liquor, jewelry and purses were among the things stolen from the home in Mansfield, Ohio.

Tina Wischhusen, who lived across the street from Minor, testified at trial that she observed two stocky men of mixed race walking down the street on that day.

One of the men was wearing a yellow shirt and appeared to be her neighbor, Jared Williams.

The other, a stockier man, was in a red shirt and had a backpack.

Wischhusen recounted that she saw the two men walk around the residence and then go up onto the porch.

Williams then backed down onto the steps of the porch as the man in the red shirt smashed in the front window and opened the door.

Williams proceeded to run off down the street while the other man went inside.

Five minutes later, the red-shirted bandit emerged from the back of the residence carrying the same backpack which appeared to be much heavier, according to the eye-witness testimony.

Williams affirmed in his testimony that he was the man in the yellow shirt.

He claimed that he was walking with Troche from a local convenience store and that they were walking around Minor’s residence as a shortcut.

Williams confirmed Troche was wearing a red shirt and carrying a backpack.

The two men walked onto the porch so Williams could attempt to contact his cousin, who lived in the adjoined apartment.

It was at this point that Williams observed Troche pull out gloves from his back pocket and smash the window in the door of Minor’s residence.

Williams ran away when he saw Troche break the glass but the police caught him a short time later. While in custody, he gave the police a statement.

About two weeks after the break-in, Williams received a message from Troche on Facebook stating “R.I.P.”

During his testimony, Minor spoke extensively about the damage to his home and his stolen items.

He also revealed that, shortly before trial, Troche called Minor on his home phone two nights in a row and threatened him with death, should he testify.

Testifying in his own defense, Troche denied ever being at the scene of the burglary.

Upon a direct appeal to the 5th District, Troche argued that he had an alibi and that his trial counsel was ineffective by failing to file a notice.

Likewise, he claimed his counsel was ineffective for failing to object to cross-examination regarding his alibi.

In writing the opinion on behalf of the 5th District’s three-judge appellate panel, Judge Scott Gwin cited Crim.R.12.1.

The rule states, “Whenever a defendant in a criminal case proposes to offer testimony to establish an alibi on his behalf, he shall, not less than seven days before trial, file and serve upon the prosecuting attorney a notice in writing of his intention to claim alibi.”

At trial, Troche testified on cross-examination that he was at Lamont Miller’s house recording music with two other men.

“Thus, Troche was not denied the right to testify concerning his whereabouts at the time covered by the indictment,” wrote Judge Gwin. “What Troche cannot do is present corroborating or extrinsic evidence for the purpose of proving his alibi.”

According to the record, Troche’s attorney was never given an address to locate the alibi witnesses.

The court of appeals included a partial transcript of the jury trial in its opinion.

The transcript indicates Troche did not specify to his counsel where to find Lamont Miller: “I would like an attempt to find this Lamont Miller. He gave me a general address, but he just said about where he was ... So I go knocking on doors and nobody knows where he is.”

The appellate panel determined that when the address of a witness is unknown, trial counsel can not be faulted for failing to give notice of an alibi.

“Having failed to find that the outcome of the trial would have been different, we do not therefore find that actions of counsel in failing to file the notice of alibi prejudiced Troche,” held Judge Gwin.

In addition, the appellate panel determined that the defense’s failure to object to error, alone, was not enough to sustain a claim of ineffective assistance of counsel.

Since Troche testified he was not the person who broke into Minor’s residence, the appellate panel found that the state was allowed to ask Troche where he was and who he was with at the time of the crime.

The only impropriety the court of appeals found on the part of the prosecution was that it notified the jury evidence would be offered to prove an alibi when such a notice had not been filed.

“However, in the present case, this court finds that the prosecutor’s questioning of Troche on this issue is harmless error,” wrote Judge Gwin.

Considering the neighbor’s testimony corroborated that of Williams and Minor and the threats Troche sent concerning their testimony at trial, the appellate panel held that Troche’s arguments had no merit.

“Accordingly, we hold that Troche has not met the burden of demonstrating that the decision reached would reasonably likely have been different absent the errors of defense counsel,” wrote Judge Gwin.

Judges Sheila Farmer and Jon Wise joined Judge Gwin in a unanimous affirmation of the Richland County court’s decision.

The case is cited State v. Troche, 2013-Ohio-3110.

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