State v. Flickinger , 2021 Ohio 3261 ( 2021 )

[Cite as State v. Flickinger, 2021-Ohio-3261.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2021 AP 01 0003
ERIC FLICKINGER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas
County Court of Common Pleas, Case No.
2019 CR 10 0438
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 17, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTINE BEARD DAN GUINN
Assistant Prosecutng Attorney 232 West 3d Street, Suite 312
125 E. High Avenue Dover, OH 44622
New Philadelphia, OH 44663
[Cite as State v. Flickinger, 2021-Ohio-3261.]
Gwin, J.,
{¶1} Appellant Eric Flickinger appeals from the December 17, 2020 judgment
entry of the Tuscarawas County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On October 28, 2019, appellant was charged with two counts of burglary,
each in violation of R.C. 2911.12(A)(2) and (D), felonies of the second degree, and one
count of theft, in violation of R.C. 2913.02(A)(1) and (B)(2), a felony of the fifth degree.
Appellant’s co-defendant, Misty Neff (“Neff”), was similarly charged and pled guilty.
{¶3} The trial court held a jury trial beginning on September 9, 2020.
{¶4} Officer James Miller (“Miller”) of the New Philadelphia Police Department
responded to a call on Hilltop and Countryside roads on October 10, 2018. He located
Neff sitting at the bottom of the yard of Marty and Shirley Kamban with a pile of luggage,
a wheelbarrow with property inside of it, and miscellaneous items hidden underneath tree
branches and leaves. Miller knew Neff because he had dealt with her numerous times in
the past. Neff told Miller she didn’t know why the property was there, and that she was
waiting for appellant. Another officer completed the process of searching Neff; while this
was going on, Miller saw appellant running from the direction of the Kambans’ house.
Miller and Officer Boyd engaged in a foot chase and caught appellant on Wabash Avenue.
{¶5} Miller testified he did not actually see appellant come out of the house, but
he saw appellant running from the direction of the house. When Miller caught up to him,
he determined it was appellant. The person he saw running from the home was the same
person he apprehended wearing the same clothes. Miller did not find any stolen property
on appellant.
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{¶6} Miller identified numerous photographs of the items he located in the piles.
Miller testified the tracts from the wheelbarrow led directly up the hill to Mr. Kennedy’s
house. When Miller followed the wheelbarrow tracks, he discovered there was a window
in Mr. Kennedy’s garage that was pried open.
{¶7} Miller did not see if appellant threw anything during the chase, but on his
way back from detaining appellant, Miller located a phone card with Shirley Kamban’s
name on it on the ground. Before Miller took appellant to the station, Alexis Kamban
came down the hill and realized there was property from her parents’ house in the piles.
She accused appellant of taking the property. She said appellant had been in the house
that morning and, upon further investigation, the basement window was open and the
basement was ransacked.
{¶8} Officer Andrew Boyd (“Boyd”) is a police officer for the City of New
Philadelphia who responded to a phone call regarding suspicious behavior on Hilltop
Road, in the area of Countryside Road. When Boyd got out of the car, he followed the
subject leaving the scene. Boyd identified appellant as the person he apprehended.
Boyd picked up a card with Shirley Kamban’s name on it on his way down the hill to
apprehend appellant. Boyd identified several photographs of the items he located hiding
in the woods.
{¶9} Boyd confirmed that the Kambans’ acknowledged appellant was in their
house that morning with their daughter in the downstairs bedroom.
{¶10} Lisa Ferris (“Ferris”) lives on Countryside Road in New Philadelphia. On
October 10, 2018, between 1:00 p.m. and 2:00 p.m., Ferris saw a man wandering around
the foot of her driveway carrying a bag. He continued to wander around with a woman,
Tuscarawas County, Case No. 2021 AP 01 0003 4
walking back and forth up and down the hill to and from the Kennedy and Kamban houses.
Ferris saw piles of items on the hillside. Ferris called the police. Ferris identified several
photographs that she took of the man and woman in the road that day while she was
waiting for the police.
{¶11} Ferris did not know the man in the photographs she took. She was
approximately one hundred yards away from the man.
{¶12} Donald Kennedy (“Kennedy”) lives on Hilltop Road. Marty and Shirley
Kamban are his next-door neighbors to the south of his property. The police asked him
to come to the scene to see if he could identify any items. At the scene, he saw a
wheelbarrow and other items from his garage, including an insulated cooler, a sound bar,
a battery charger, a hand sander, some jumper cables, and an electric drill. Kennedy
also noticed the screen was out of his garage window. Kennedy did not give anyone
permission to take any of these items out of his garage. Kennedy does not know
appellant, and does not know who came into his home and took the items.
{¶13} Marty Kamban lives on Hilltop Road. When Marty entered his home on
October 10, 2018, he noticed his diabetic medicine was missing. He noticed multiple
other items missing from his home, including: keys to his rental properties, a leaf blower,
tools, clothes, and electrical items. Later that day, Marty and Mr. Kennedy used a pickup
truck to recover the stolen items, which had been located in the woods and at the bottom
of the hill. Marty stated the person who took the items appeared to have entered and
exited from a basement window that leads to the woods.
{¶14} On cross-examination, Marty stated his daughter invited appellant into his
house occasionally prior to October 10th, but appellant was not permitted into his home
Tuscarawas County, Case No. 2021 AP 01 0003 5
after some items were stolen in the weeks prior to October 10th. Marty did not see
appellant that day.
{¶15} Shirley Kamban noticed several items missing from her car, including a gift
card. She was asleep on October 10th when the police came, so she did not know who
came into the house that day.
{¶16} The jury found appellant not guilty of the two counts of burglary, and guilty
of one count of theft. The jury additionally found the value of the property involved was
$1,000 or more and less than $7,500. The trial court memorialized the jury’s verdict in a
September 15, 2020 judgment entry. The trial court ordered a pre-sentence investigation,
and set sentencing for October 28, 2020.
{¶17} Appellant failed to report to probation for a PSI interview and failed to return
the probation officer’s call. The trial court thus set a review hearing for October 21, 2021,
and ordered appellant to appear. Appellant failed to appear for the October 21st review
hearing. The trial court issued a capias for appellant’s arrest.
{¶18} Appellant was arrested on October 26, 2020. The trial court sentenced
appellant on December 15, 2020, and issued a judgment entry of sentence on December
17, 2020. The trial court imposed a sentence of 120 days in jail with 74 days of jail time
credit.
{¶19} Appellant appeals the December 17, 2020 judgment entry of the
Tuscarawas County Court of Common Pleas and assigns the following as error:
{¶20} “APPELLANT’S CONVICTION FOR THEFT WAS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
Tuscarawas County, Case No. 2021 AP 01 0003 6
I.
{¶21} Appellant contends his conviction was against the manifest weight and
sufficiency of the evidence.
{¶22} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), in which the Ohio
Supreme Court held, “an appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶23} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, 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 overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.{¶24} It is well-established, though, that the weight of the evidence and the
credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95
Tuscarawas County, Case No. 2021 AP 01 0003 7
Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The jury is free to accept or reject any
and all of the evidence offered by the parties and assess the witness’s credibility. Id.{¶25} Appellant was found guilty of one count of theft pursuant to R.C.
2913.02(A)(1) and (B)(2), which provide, in pertinent part:
(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services
in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent.
***
(B)(2) * * * If the value of the property or services stolen is one thousand dollars or
more and is less than seven thousand five hundred dollars * * * a violation of this
section is theft, a felony of the fifth degree.
{¶26} Appellant first contends since the jury found him not guilty of the burglary
charges, the jury could not find him guilty of theft; thus, the theft conviction is against the
manifest weight of the evidence. We disagree.
{¶27} “Inconsistent verdicts on different counts of a multi-count indictment do not
justify overturning a verdict.” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819
N.E.2d 1047. We have previously cited the Ohio Supreme Court’s decision in State v.
Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), holding that, “the several counts of
an indictment containing more than one count are not interdependent, and an
inconsistency in a verdict does not arise out of inconsistent responses to different counts,
but only arises out of inconsistent responses to the same count.” “An inconsistent verdict
may very well be the result of leniency and compromise by the jurors, rather than being
Tuscarawas County, Case No. 2021 AP 01 0003 8
caused by jury confusion.” State v. Fraley, 5th Dist. Perry No. 03CA12, 2004-Ohio-4989;
State v. Carson, 5th Dist. Licking No. 18-CA-25, 2018-Ohio-5303.
{¶28} Because appellant’s argument is that the jury’s verdicts were inconsistent
across multiple counts rather than within a single count, based on the law as set forth
above, we cannot justify overturning the jury verdict. See State v. Rardon, 5th Dist.
Delaware No. 17 CAA 04 0027, 2018-Ohio-1935. The jury could reasonably find the
evidence supported the theft conviction, but also find the evidence did not reasonably
support convictions on the burglary counts.
{¶29} Appellant next argues the evidence presented was insufficient for the jury
to identify him as the person who committed the theft offense.
{¶30} Every criminal prosecution requires proof that the person accused of the
crime is the person who committed the crime. State v. Tate, 140 Ohio St.3d 442, 2014-
Ohio-3667, 19 N.E.3d 888. This truism is reflected in the state’s constitutional burden to
prove the guilt of the “accused” beyond a reasonable doubt. In re Winship, 397 U.S. 358,
90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Like any fact, the state can prove the identity of
the accused by circumstantial or direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991). A witness need not physically point out the defendant in the
courtroom as long as there is sufficient direct or circumstantial evidence proving that the
defendant was the perpetrator. Id.{¶31} If the State relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” Id. The relevant
question in a sufficiency-of-the-evidence review is whether, after viewing the evidence in
Tuscarawas County, Case No. 2021 AP 01 0003 9
a light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. Id.{¶32} In this case, Ferris took a cell phone photograph of a man carrying a bag
containing what was later determined to be stolen property. The same man was also in
a cell phone photograph with Neff, who was well-known to Miller. Ferris testified she saw
this same man and woman wander up and down the hill, carrying household items and
covering the items with branches in the woods.
{¶33} Miller saw appellant running from the direction of the victims’ house. Miller
and Boyd engaged in a foot chase and caught appellant on Wabash Avenue. When Miller
caught up to him, he determined it was appellant. The person he saw running from the
home was the same person he apprehended and was wearing the same clothes. Miller
confirmed the man in Ferris’ photograph was appellant, the man they apprehended. Boyd
identified a stolen credit card with Shirley Kamban’s name on it in the path of appellant’s
flight. On his way back from detaining appellant, Miller located a phone card with Shirley
Kamban’s name on it. During his investigation, Miller determined the tracts from the
wheelbarrow led directly up the hill to Mr. Kennedy’s house. When he followed the
wheelbarrow tracts, he discovered there was a window in Mr. Kennedy’s garage that was
pried open.
{¶34} We find the evidence presented was sufficient for the jury to identify
appellant as the person who committed the theft offense beyond a reasonable doubt.
{¶35} Appellant contends the testimony of Marty Kamban as to whether he saw
appellant on the morning of October 10, 2018 was contradictory and brings his credibility
Tuscarawas County, Case No. 2021 AP 01 0003 10
into question; thus, his conviction is against the manifest weight of the evidence. We
disagree.
{¶36} The jury, as the trier of fact, was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render [a] defendant’s conviction against the manifest weight
of the evidence.” State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-Ohio-3113,
citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28,
1996). The jury need not believe all of a witness’s testimony, but may accept only portions
of it as true. Id.{¶37} Appellant contends since there was no property found on him at the time of
his arrest, his theft conviction is against the manifest weight of the evidence. We
disagree.
{¶38} The fact that appellant was not in possession of the property when he was
arrested is not determinative of whether he exerted control over it without the owners’
consent. State v. Fornash, 5th Dist. Stark No. 2019CA00145, 2020-Ohio-3265; State v.
Brownlee, 9th Dist. Summit No. 27255, 2015-Ohio-2616 (upholding theft conviction when
appellant stood 15-20 feet from the stolen merchandise in the cart); State v. McKinney,
11th Dist. Lake No. 2006-L-169, 2007-Ohio-3389 (stating, “that appellant did not
physically carry the merchandise is immaterial, as the state presented sufficient evidence
from which the jury could find that appellant exerted control over the stolen
merchandise”).
Tuscarawas County, Case No. 2021 AP 01 0003 11
{¶39} In this case, appellee presented sufficient evidence from which the jury
could find that appellant exerted control over the stolen items. Ferris saw the man she
took the photograph of taking household items up and down the hill, and hiding them in
the woods. When appellant was apprehended, he was positively identified as the man in
Ferris’ photographs. There were cards with Shirley Kamban’s name on them in the path
of appellant’s flight. Neff told officers she was waiting for appellant to come down from
the victims’ house. The weight of the evidence and the credibility of the witnesses are
determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,
767 N.E.2d 216.
{¶40} Finally, appellant contends there was no evidence presented to establish
the value of the stolen property was more than $1,000, but less than $7,500, and thus his
conviction is against the manifest weight of the evidence.
{¶41} R.C. 2913.61 establishes how the value of property is to be determined. It
states, in pertinent part:
(D) The following criteria shall be used in determining the value of property
or services involved in a theft offense:
(2) The value of personal effects and household goods, and of materials,
supplies, equipment, and fixtures used in the profession, business, trade,
occupation, or avocation of its owner, which property is not covered under
division (D)(1) of this section and which retains substantial utility for its
purpose regardless of its age or condition, is the cost of replacing the
property with new property of like kind and quality.
Tuscarawas County, Case No. 2021 AP 01 0003 12
(3) The value of any real or personal property that is not covered under
division (D)(1) or (2) of this section, and the value of services, is the fair
market value of the property or services. As used in this section, “fair market
value” is the money consideration that a buyer would give and a seller would
accept for property or services, assuming that the buyer is willing to buy and
the seller is willing to sell, that both are fully informed as to all facts material
to the transaction, and that neither is under any compulsion to act.
{¶42} “To establish value in theft offenses, the state need not prove value to an
exact amount. Rather, all that is required is that some evidence be admitted to establish
value.” State v. Pesec, 11th Dist. Portage No. 2006-P-0084, 2007-Ohio-3846. Moreover,
“[a]n owner of personal property is qualified to given an opinion as to the value of personal
property.” Id., citing Bishop v. East Ohio Gas, 143 Ohio St. 541 (1944). Circumstantial
evidence, including photographs of personal property, may be used to prove the value of
stolen items in a theft offense. Id.; State v. Jennings, 8th Dist. Cuyahoga No. 99631,
2013-Ohio-5428; State v. Jones, 5th Dist. Tuscarawas No. 2002-AP-05-0041, 2003-Ohio-
445; State v. Allen, 5th Dist. Stark No. 2002CA00059, 2003-Ohio-229.
{¶43} This case involved the theft of common household items. Kennedy and
Kamban testified to and identified what specific items were missing or taken from their
homes. Appellee introduced multiple photographs of the items that had been taken from
the homes, including bags of clothing, small tools, yard equipment, personal items, cash,
and power tools. The jurors also heard testimony about items that had been taken and
never recovered, such as diabetic medicine, money, and a passport. This evidence was
sufficient, in a light most favorable to the state, for the jurors to conclude beyond a
Tuscarawas County, Case No. 2021 AP 01 0003 13
reasonable doubt that the aggregate value of the stolen property was more than $1,000
but less than $7,500. The verdict forms required the jurors to consider different values,
including a value less than $1,000, in reaching their decision.
{¶44} After weighing the evidence and evaluating the credibility of the witnesses,
with appropriate deference to the trier of fact’s credibility determination, we cannot say
the jury clearly lost its way and created a manifest miscarriage of justice with regard to
the theft.
{¶45} Similarly, we find that sufficient evidence exists to support appellant’s
conviction. This is not the case where the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be overturned and a new trial
ordered.
{¶46} Upon our review of the entire record, we find appellant’s theft conviction is
supported by sufficient evidence and is not against the manifest weight of the evidence.
Appellant’s assignment of error is overruled.
Tuscarawas County, Case No. 2021 AP 01 0003 14
{¶47} The December 17, 2020 judgment entry of the Tuscarawas County Court
of Common Pleas is affirmed.
By Gwin, J.,
Baldwin, P.J., and
Wise, Earle, J., concur