State v. O'Malley, 109454

2021-Ohio-2038

STATE OF OHIO, Plaintiff-Appellee, v. CHRISTOPHER J. O'MALLEY, Defendant-Appellant.

No. 109454

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 17, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639114-A

JUDGMENT AFFIRMED

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Allison M. Cupach, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Noelle A Powell, Assistant Public Defender, for appellant

MARY EILEEN KILBANE, J.

JOURNAL ENTRY AND OPINION

{¶ 1} Defendant-appellant Christopher J. O'Malley ("O'Malley") appeals his conviction for having weapons while under disability. For the reasons that follow, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

{¶ 2} On May 16, 2020, a Cuyahoga County Grand Jury returned a two-count indictment against O'Malley charging him on Count 1 with grand theft in violation of R.C. 2913.02(A)(1) and on Count 2 with having weapons while under disability in violation of R.C. 2923.13(A)(3). Both are third-degree felonies. O'Malley elected to try Count 1, the grand theft charge in violation of R.C. 2913.02(A)(1) to a jury. As to Count 2, having weapons while under disability in violation of R.C. 2923.13(A)(3), O'Malley waived his right to a jury and elected to try Count 2 to the bench.

{¶ 3} These charges arose from a missing firearm, owned by the victim Tiffany Holstein ("Holstein"), that allegedly went missing from her home after her birthday celebration on November 24, 2018. As of November 2018, Holstein was living with her boyfriend Robert Higgins ("Higgins"), at 4529 West 130th Street in Cleveland, a home owned by Higgins's uncle, who lived in the basement. She had been living there for four to five months at that time. Higgins's cousin "Fluffy," whose real name is unknown to Holstein, and his friend "Dalton" also lived in the house. The home had three bedrooms upstairs and one on the main floor, in addition to the living quarters in the basement. There was only one stairway to the second floor, which was opposite the front door of the home.

{¶ 4} Holstein testified that she and Higgins shared a bedroom on the second floor, which they kept padlocked unless one of them was home. The couple shared a pitbull that was kept in the bedroom when they were not home as well. Holstein also kept two firearms in her bedroom, a semiautomatic .22 caliber handgun and a 9 mm Hi-Point. Holstein testified that both firearms were loaded at all times. Holstein testified she kept the .22 caliber firearm out most of the time, either next to her or with her. When she was not home, she kept the .22 caliber firearm in her bedroom closet on the top shelf behind other objects. She kept the 9 mm firearm on the side table next to her bed under coloring books.

{¶ 5} On November 24, 2018, the day before Holstein's birthday, she, Higgins, Holstein's cousin Brandon Williamson ("Williamson"), and O'Malley gathered at their house before they went downtown to celebrate. Holstein testified that she had met O'Malley through Williamson and considered him a friend. Higgins also considered him a friend. O'Malley and Holstein would see each other a few times a week, sometimes at Holstein's house. She testified that O'Malley was familiar with her firearms.

{¶ 6} That night, before the party, Holstein had covered her 9 mm firearm with coloring books in its usual spot on top of her bedside table. Once people arrived but before they all went downtown that night, O'Malley put his belongings, which included a duffel bag, in Holstein's room for safekeeping. While O'Malley was in the room with her, she placed the .22 caliber firearm up in her closet where she normally stored it and closed the closet door.

{¶ 7} The group left the house to go downtown at 10:00 or 11:00 p.m. and returned to the home at about 2:00 a.m. At some point during the evening, Holstein and O'Malley got into an argument. When they got back to the house, the argument escalated to the point where Holstein punched O'Malley in the face. Holstein then went upstairs and unlocked her bedroom door to let her dog out while everyone was downstairs. She eventually brought the dog back upstairs, shut her door, and went back downstairs without locking her door. Holstein and O'Malley continued to argue in the living room with Higgins, while Williamson was asleep on the couch. Fluffy was in his room upstairs and Higgins's uncle was in the basement. Holstein was unsure if Dalton was in his room.

{¶ 8} At some point during the argument, O'Malley abruptly went upstairs to retrieve his belongings and left the house when his mother arrived. Holstein felt the way he left was suspicious, so after O'Malley departed, she went to her room, where she noticed the closet door was open. Holstein could not remember if she had opened it since being home, but she knew she had closed it before they went out. She checked on her .22 caliber firearm and when she could not find it, she immediately suspected O'Malley stole it. Higgins testified that he called O'Malley and asked O'Malley if he had it, and O'Malley denied having the firearm. Holstein and Higgins then looked for the firearm but were unable to find it. Holstein called the police to report it missing and told the police O'Malley had taken it. The next day, Higgins found the "missing".22 caliber firearm underneath a glass table at the bottom of the stairs by the front door.

{¶ 9} It was not until one week later, on November 30, 2018, that Holstein noticed her 9 mm firearm was missing from the table next to her bed.^[1] The coloring books were undisturbed, so it was not until Holstein was looking for her 9 mm firearm to go to the shooting range that she noticed it was not there. She searched the house for the firearm for a day before contacting the police about this second missing firearm on December 1, 2018. The following day, Officer Wise from the Cleveland Police Department responded to her call. Holstein told Officer Wise that she believed O'Malley took the 9 mm firearm.

{¶ 10} Holstein then testified that on December 27, 2018, she received Facebook messages from O'Malley. They often communicated through Facebook's Messenger application. Holstein claimed to have taken screenshots of the messages between her and O'Malley that occurred on December 27th, 28th, and 31st as well as an additional message from March 7, 2019. She provided these screenshots to Detective Holt, from the Cleveland Police Department's First District, who was assigned to her case on February 21, 2019. At trial, the state had the screenshots admitted into evidence as state's exhibit No. 4.

{¶ 11} Throughout the messages, O'Malley apologizes and vaguely references an "it" that he should not have touched, that he was going to bring "it" back the next day, but "it" was stolen from him that night and sold before he could. He then offers to buy her a new "it." Throughout the conversation, O'Malley refers to a few specific events from the evening of November 24, 2018, such as his argument with Holstein, her punching him, and how his mother picked him up. In one message on December 27, 2018, he mentions a "hy point [sic]," and on the December 28, 2018, he states his mom has the $200.00 he wants to give Holstein to buy a new one, but he would "really like to just get [Holstein] the gun instead." O'Malley even mentions getting her a firearm that does not jam, as Holstein testified her Hi-Point would jam on occasion. On March 7, 2019, O'Malley messaged Holstein again through Facebook Messenger and this time, rather than reply with a message, Holstein testified that she called him through Facebook Messenger and they discussed the missing 9 mm firearm over the phone. Holstein testifies that O'Malley offered again to pay for a new firearm, but she told him she just wanted her firearm back.

{¶ 12} The defense only called one witness, Dana Driver ("Driver"), who testified that, while not currently dating, she and O'Malley had been dating on and off for years. In November 2018, they were dating, although they were not on the best of terms. Driver testified that she suspected Holstein and O'Malley were romantically involved. Looking to upend this potential relationship, she testified that she began messaging Holstein in late December 2018, posing as O'Malley through his Facebook Messenger account. Driver testified that O'Malley's phone was not password protected, so she could easily message Holstein through his phone without his knowledge on his Facebook account.

{¶ 13} Driver testified that she messaged Holstein through O'Malley's account, posing as him, to tell Holstein that O'Malley stole her firearm. She stated she was aware of Holstein's accusation of the missing firearm through reading their prior messages. Driver testified that she messaged Holstein, as O'Malley, saying whatever she thought would make Holstein angry with O'Malley, based on what she could glean from their prior messages. The details provided in the messages, according to Driver, were all things Driver made up based on what she knew about what happened on November 24, 2018, from O'Malley, mutual friends, and O'Malley's mother.

{¶ 14} Driver testified that she broke up with O'Malley in February 2019 because she was still convinced he was romantically involved with Holstein. Because of this separation, she was unaware O'Malley was being prosecuted for allegedly stealing Holstein's firearm. She testified that once she found out he was being prosecuted, she decided to come forward, two months before trial, to admit to falsely messaging Holstein through O'Malley's account. To that end, she met with both defense counsel and the assistant county prosecutor at a pretrial hearing to...