State v. Shabazz , 2011 Ohio 2260 ( 2011 )


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  • [Cite as State v. Shabazz, 
    2011-Ohio-2260
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 95021
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    KAREEM SHABAZZ
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-532608
    BEFORE:             Blackmon, P.J., Celebrezze, J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED:                       May 12, 2011
    -i-
    2
    ATTORNEY FOR APPELLANT
    Stephen L. Miles
    20800 Center Ridge Road
    Suite 405
    Rocky River, Ohio 44116
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    Jeffrey S. Schnatter
    Brad S. Meyer
    Assistant Prosecuting Attorneys
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    PATRICIA ANN BLACKMON, P.J.:
    {¶ 1} Appellant Kareem Shabazz appeals the trial court’s denial of his
    motion to dismiss and his subsequent convictions.      Shabazz assigns the
    following errors for our review:
    “I. The trial court erred by denying the appellant’s motion
    to dismiss because his right to a speedy trial was
    violated.”
    “II. Appellant’s convictions were against the manifest
    weight of the evidence.”
    3
    {¶ 2} Having reviewed the record and pertinent law, we affirm the trial
    court’s decision and Shabazz’s convictions. The apposite facts follow.
    {¶ 3} On December 30, 2009, as a result of a burglary at a home in
    Maple Heights, Ohio and a robbery1 of a Dollar General store in the same
    city, a Cuyahoga County Grand Jury issued a multi-count indictment against
    Shabazz and his codefendant, David Merritt.            The grand jury indicted
    Shabazz on six counts of kidnapping, two counts of aggravated robbery, four
    counts of felonious assault, and two counts of receiving stolen property. The
    foregoing charges had one and three-year firearm specifications attached.
    {¶ 4} The grand jury also indicted Shabazz on one count of having
    weapons while under disability. Shabazz pleaded not guilty at his
    arraignment and numerous pretrials and continuances followed.                   On
    February 22, 2010, Shabazz waived his right to a jury trial on the charge of
    having weapons while under disability. The state dismissed the four counts
    of felonious assault.   On March 15, 2010, a jury trial commenced on the
    remaining charges; the next day, the trial court denied Shabazz’s motion to
    dismiss for speedy trial violation.
    Jury Trial
    1
    The jury subsequently found Shabazz not guilty of all the charges relating to
    the robbery of the Dollar General store; thus, this opinion will contain only a
    limited discussion of the testimony relating to the robbery.
    4
    {¶ 5} At trial, the state presented the testimony of 16 witnesses
    including Kenneth Dostie, who testified that on April 21, 2009, his home in
    Maple Heights, Ohio was burglarized. Dostie also testified that the burglary
    must have taken place between the hours of 7:30 AM and 3:00 PM, while his
    daughter was at school. Dostie stated that numerous items were taken from
    the house including, but not limited to, a red 1995 Ford Mustang automobile,
    rare gold and silver coins, handcuffs, several watches, a television set, and a
    black Harley Davidson leather jacket.
    {¶ 6} In addition, the burglar took a prescription bottle containing
    Dostie’s medication, passports belonging to him and his daughter, vehicle
    registration and insurance card for the 1995 Ford Mustang, the garage door
    opener, keys to his 1999 Harley Davidson motorcycle and 2004 Dodge Ram
    truck.       Further, the burglar took a paycheck stub and other personal
    papers.
    {¶ 7} Finally, after reporting the burglary to the Maple Heights Police
    Department and providing them with a list of the rare coins that were taken
    from the home, Dostie also contacted coin dealers, as well as pawn shops
    throughout the area, to alert them of possible sales of his property.
    {¶ 8} Dostie’s daughter, Michelle, 2 testified that she returned home
    from school on April 21, 2009, and found the garage door opened. Michelle
    We will refer to this witness by her first name because of the shared last
    2
    5
    immediately noticed that the red 1995 Ford Mustang was missing and that
    the Harley Davidson motorcycle had been moved to the opposite side of the
    garage. Michelle called her father to inquire whether her aunt had borrowed
    the Mustang. Michelle’s father indicated that her aunt had not borrowed the
    car and instructed her to check the house, while he called the police.
    {¶ 9} Rebecca Masters, the manager of Bedford Jewelry and Coin,
    testified that on April 22, 2009, Shabazz, accompanied by another male,
    entered her shop and attempted to sell her gold and silver coins, as well as a
    silver bar. Masters stated that Shabazz indicated that the items were from
    an inheritance.    Masters had been alerted earlier that day by Dostie, who
    faxed her a list of the coins that had been stolen from his home.
    {¶ 10} Masters testified that the individual who accompanied Shabazz to
    the store asked to use her restroom, but she told him he could not, and
    suggested he go to the restaurant next door.           Masters surreptitiously
    signaled her niece to summon the police, while she feigned interest in the
    coins by having Shabazz fill out paperwork and provide identification.    The
    police arrived a short time later, arrested Shabazz and the other male, who
    had gone next door to the restaurant.
    {¶ 11} Matthew Berger and William Blaha, officers with the Maple
    Heights Police Department, testified that on April 22, 2009, they responded to
    name with her father.
    6
    the Bedford Coin and Jewelry where they arrested Shabazz, as well as the
    other male that had accompanied him to the store, and confiscated the items
    Shabazz was trying to sell.
    {¶ 12} Patrolmen Berger and Blaha conducted an inventory tow sheet of
    the vehicle Shabazz and his companion had traveled in to the coin store. The
    patrolmen found several items in the vehicle that had been taken from
    Dostie’s home, including, but not limited to rolls of coins, passports belonging
    to Dostie and his daughter, a prescription bottle, a Dell computer, garage door
    opener, and four sets of keys.
    {¶ 13} Patrolman Justin Ludwig, also of the Maple Heights Police
    Department, testified that on April 21, 2009, he responded to Dostie’s home
    on report of a burglary. Patrolman Ludwig testified that while he was at
    Dostie’s home, he heard over the radio that a robbery had taken place at a
    Dollar General store and the suspects had driven away in a red sports car.
    Due to the very close vicinity of the burglary and the robbery, Patrolman
    Ludwig notified dispatch that the vehicle involved in the robbery might be the
    one that had been taken from Dostie’s home.          Patrolman Ludwig later
    discovered Dostie’s red Ford Mustang a few blocks away from the Dollar
    General store.
    {¶ 14} Crystal Gibson testified that she is the manager of the Dollar
    General store located on Lee Road South in Maple Heights, Ohio. Gibson
    7
    testified that on April 21, 2009, two individuals entered the store and robbed
    them at gunpoint. Gibson stated that a tall, heavy set, black male, who was
    wearing a sweatshirt with a flame on the front, brandished a shotgun, while
    the other individual was wearing a black leather jacket and a bandana over
    his face. Gibson testified that the second individual did not have a gun, but
    came behind the counter and took the money out of the cash register.
    Gibson stated the two individuals fled in a red sports car.
    {¶ 15} Shabazz’s codefendant, Merritt, testified that he agreed to testify
    against Shabazz in exchange for a total prison sentence of 18 months.
    Merritt testified that on April 21, 2009,        Shabazz contacted him and
    indicated that he intended to commit a robbery.      Merritt met with Shabazz
    around 11:00 in the morning, drove past a house that Shabazz indicated he
    had just burglarized, and where he had obtained the red Ford Mustang.
    {¶ 16} Merritt stated that Shabazz gave him a shotgun and they drove
    to the Dollar General store in the red Ford Mustang.      Merritt and Shabazz
    entered the store, Merritt held the gun while Shabazz emptied the cash
    register. They both fled the scene and returned to Shabazz’s apartment in
    Maple Heights.
    {¶ 17} The jury found Shabazz guilty of one count of receiving stolen
    property, but acquitted him of the remaining charges. The trial court found
    Shabazz guilty of having weapons while under disability.        On March 31,
    8
    2010, the trial court sentenced Shabazz to prison terms of five years for
    having weapons while under disability and one year for receiving stolen
    property. The trial court ordered the sentences to run concurrently.
    Speedy Trial
    {¶ 18} In the first assigned error, Shabazz argues the trial court erred
    when it denied his motion to dismiss for a violation of his right to a speedy
    trial.
    {¶ 19} When an appellate court reviews an allegation of a speedy trial
    violation, it “should apply a de novo standard of review to the legal issues but
    afford great deference to any findings of fact made by the trial court.” State v.
    Barnes, Cuyahoga App. No. 90847, 
    2008-Ohio-5472
    , ¶17.
    {¶ 20} The Sixth and Fourteenth Amendments to the United States
    Constitution, and Section 10, Article I of the Ohio Constitution, guarantee a
    criminal defendant the right to a speedy trial. See, e.g., Barker v. Wingo
    (1972), 
    407 U.S. 514
    , 
    92 S.Ct. 2182
    , 
    33 L.Ed.2d 101
    ; State v. O’Brien (1987),
    
    34 Ohio St.3d 7
    , 
    516 N.E.2d 218
    . In Barker, the United States Supreme
    Court stated that “[a] balancing test necessarily compels courts to approach
    speedy trial cases on an ad hoc basis.” Id. at 530. The court identified four
    factors that courts should consider in determining whether the right to a
    speedy trial has been violated: (1) the length of the delay; (2) the reason for
    9
    the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the
    defendant. Id. at 530.
    {¶ 21} The Barker court determined, however, that the states are free to
    prescribe a reasonable period within which to bring criminal defendants to
    trial consistent with constitutional standards.      To that end, in order to
    comply with the Barker decision, the Ohio General Assembly enacted R.C.
    2945.71. State v. Lewis (1990), 
    70 Ohio App.3d 624
    , 
    591 N.E.2d 854
    , citing
    O’Brien.
    {¶ 22} R.C. 2945.71 requires that felony charges be brought to trial
    within 270 days after a person’s arrest. R.C. 2945.71(C)(2). Once the statutory
    limit has expired, the defendant has established a prima facie case for
    dismissal. State v. Howard (1992), 
    79 Ohio App.3d 705
    , 
    607 N.E.2d 1121
    . At
    that point, the burden shifts to the state to demonstrate that sufficient time
    was tolled pursuant to R.C. 2945.72. State v. Geraldo (1983), 
    13 Ohio App.3d 27
    , 
    468 N.E.2d 328
    . If the state has violated a defendant’s right to a speedy
    trial, then the court must dismiss the charges against the defendant. R.C.
    2945.73(B).
    {¶ 23} Pursuant to R.C. 2945.72, however, speedy trial time may be
    tolled by several events, including the following:
    “(D) Any period of delay occasioned by the neglect or
    improper act of the accused;
    10
    “(E) Any period of delay necessitated by reason of a plea in
    bar or abatement, motion, proceeding, or action made or
    instituted by the accused;
    “***
    “(G) Any period during which trial is stayed pursuant to
    an express statutory requirement, or pursuant to an order
    of another court competent to issue such order;
    “(H) The period of any continuance granted on the
    accused’s own motion, and the period of any reasonable
    continuance granted other than upon the accused’s own
    motion[.]”
    {¶ 24} In accordance with the speedy trial provisions, the statutory time
    period begins to run on the date the defendant is arrested; however, the date
    of arrest is not counted when computing the time period. State v. Masters, 
    172 Ohio App.3d 666
    , 
    2007-Ohio-4229
    , 
    876 N.E.2d 1007
    , citing State v. Stewart
    (Sept. 21, 1998), 12th Dist. No. CA98-03-021.             If the defendant is
    incarcerated following his arrest, each day spent in jail “on a pending charge”
    acts as three days toward speedy trial time. R.C. 2945.71(E). If he is not
    incarcerated following his arrest, the speedy trial time is counted on a
    one-for-one basis. State v. Thieshen (1977), 
    55 Ohio App.2d 99
    , 
    379 N.E.2d 622
    .
    {¶ 25} If the defendant is not arrested for the offense, speedy trial time
    begins on the day he is served with the indictment. State v. Pirkel, Cuyahoga
    App. No. 93305, 
    2010-Ohio-1858
    . If a capias must be issued for the accused,
    11
    speedy trial time is tolled for this time period. State v. Ennist, Cuyahoga App.
    No. 90076, 
    2008-Ohio-5100
    .
    {¶ 26} A defendant’s demand for discovery or a bill of particulars tolls
    the speedy trial period for a “reasonable time,” which this court has
    interpreted to mean 30 days. State v. Byrd, Cuyahoga App. No. 91433,
    
    2009-Ohio-3283
    ; State v. Barb, Cuyahoga App. No. 90768, 
    2008-Ohio-5877
    .
    Conversely, a defendant’s failure to respond to a prosecution’s request for
    reciprocal discovery, beyond a “reasonable time” for doing so, tolls the
    running of speedy trial time pursuant to R.C. 2945.72(D). Byrd at ¶15, citing
    State v. Palmer, 
    112 Ohio St.3d 457
    , 
    2007-Ohio-374
    , 
    860 N.E.2d 1011
    .
    {¶ 27} Motions filed by the defendant tolls the speedy trial time under
    R.C. 2945.72(E) for a “reasonable period” to allow the state an opportunity to
    respond and the court an opportunity to rule. State v. Sanchez, 
    110 Ohio St.3d 274
    , 
    2006-Ohio-4478
    , 
    853 N.E.2d 283
    .      In addition, the period is also
    tolled by “[t]he period of any continuance granted on the accused’s own
    motion, and the period of any reasonable continuance granted other than
    upon the accused’s own motion[.]” R.C. 2945.72(H); State v. Baker (1993), 
    92 Ohio App.3d 516
    , 
    636 N.E.2d 363
    .
    {¶ 28} Further, pursuant to R.C. 2945.72(H), sua sponte continuances
    requested by the court may toll speedy trial time. Pirkel.      “A sua sponte
    continuance must be properly journalized before the expiration of the speedy
    12
    trial period and must set forth the trial court’s reasons for the continuance.”
    
    Id.,
       quoting   State   v.   Weatherspoon,   5th   Dist.   No.    2006CA0013,
    
    2006-Ohio-4794
    . “The record of the trial court must * * * affirmatively
    demonstrate that a sua sponte continuance by the court was reasonable in
    light of its necessity or purpose.” State v. Lee (1976), 
    48 Ohio St.2d 208
    , 209,
    
    357 N.E.2d 1095
    .
    {¶ 29} Finally, a motion to continue that is filed by the state may toll
    speedy trial time so long as the trial record affirmatively demonstrates the
    necessity for a continuance and the reasonableness thereof. State v. Myers,
    
    97 Ohio St.3d 335
    , 
    2002-Ohio-6658
    , 
    780 N.E.2d 186
    .                A prosecuting
    attorney’s motion to continue based on the unavailability of a witness acts to
    extend the speedy trial provisions if the length of the delay is reasonable.
    State v. Saffell (1988), 
    35 Ohio St.3d 90
    , 
    518 N.E.2d 934
    . Moreover, if the
    state’s continuance is not reasonable, the continuance must be charged
    against the state for speedy trial purposes. State v. Nelson, 12th Dist. No.
    CA2007-11-046, 
    2009-Ohio-555
    , citing State v. Baker, 12th Dist. No.
    CA2005-05-017, 
    2006-Ohio-2516
    .
    {¶ 30} Applying all of the foregoing, we note that Shabazz was arrested
    in Case No. CR-524126 on April 22, 2009. Applying the speedy trial period
    from the day after Shabazz’s arrest, the state was required to bring him to
    13
    trial no later than Monday, January 18, 2010, unless that period was tolled
    by some event as outlined above.
    {¶ 31} The record indicates that Shabazz was held in jail without bail
    solely on the pending charges from April 23, 2009, until May 19, 2009, when
    he filed a motion for discovery. During this 27 day period, the time ran on a
    three-for-one basis bringing the total to 81 days. R.C. 2945.71(E).   Shabazz’s
    motion for discovery, filed on May 19, 2009, tolled the speedy trial time until
    the state answered or for a reasonable time. Sanchez, supra.
    {¶ 32} On June 1, 2009, a pretrial was held and Shabazz requested a
    continuance until June 18, 2009, citing further discovery.        On June 18,
    2009, the previously scheduled pretrial was continued to July 1, 2009, at
    defendant’s request because his attorney was engaged in trial.        On July 1,
    2009, a pretrial was held, but continued to July 14, 2009, at Shabazz’s
    request. On July 14, 2009, the pretrial was continued at Shabazz’s request
    until July 22, 2009. The above continuances at Shabazz’s request tolled the
    time until July 22, 2009. Thus, as of July 22, 2009, 81 days of Shabazz’s
    speedy trial time had been exhausted.
    {¶ 33} On July 22, 2009, a pretrial was held, trial was scheduled for July
    28, 2009, and Shabazz’s speedy trial began running again on a three-for-one
    basis. On July 28, 2009, the previously scheduled trial was reset to August
    13, 2009, because the trial court was engaged in another trial. As of August
    14
    13, 2009, 22 calendar days elapsed on a three-for-one basis, for a total of 66
    speedy trial days. Thus, by August 13, 2009, 147 days of Shabazz’s speedy
    trial time had been exhausted.
    {¶ 34} On August 13, 2009, pursuant to a joint request of the state and
    Shabazz, the trial was continued to August 31, 2009. The joint request tolled
    the running of the speedy trial time. In addition, the record indicates that as
    of August 13, 2009, a foreign warrant 3 was filed against Shabazz, which
    means that he was no longer being held in jail solely on the pending charges.
    Thus, from this point forward, the speedy trial days were counted
    one-for-one.
    {¶ 35} On August 31, 2009, the state requested a continuance to
    September 9, 2009. Shabazz’s speedy trial time began running again and
    ran for a total of 10 days.      Thus, as of September 9, 2009, 157 days of
    Shabazz’s speedy trial time had been exhausted.
    {¶ 36} On September 9, 2009, Shabazz requested a continuance to
    September 25, 2009, which operated to toll the speedy trial time.          On
    September 29, 2009, Shabazz requested a continuance until October 6, 2009,
    which further tolled the speedy trial time. In addition, on September 29,
    2009, Shabazz was arraigned on a new case.
    3
    Shabazz was indicted on a separate case in another jurisdiction, which
    triggered the one-for-one count.
    15
    {¶ 37} On October 6, 2009, a pretrial was conducted and Shabazz
    requested a continuance until October 14, 2009, which continued the tolling of
    his speedy trial time.     On October 14, 2009, a pretrial was conducted;
    Shabazz requested a continuance until October 27, 2009, further tolling his
    speedy trial time.      On October 27, 2009, Shabazz requested another
    continuance to November 10, 2009, because of two new pending cases, which
    continued the tolling of his speedy trial time.
    {¶ 38} On November 10, 2009, a pretrial was conducted and Shabazz
    requested a two day continuance, which further tolled his speedy trial time.
    On November 12, 2009, a pretrial was conducted and Shabazz’s trial was
    scheduled for January 4, 2010. Thus, as of November 12, 2010, Shabazz’s
    speedy trial time began running again and continued running until the
    scheduled date of trial. Between November 12, 2009 and January 4, 2010,
    63 calendar days had passed.       Thus, as of January 4, 2010, 220 days of
    Shabazz’s speedy trial time had been exhausted.
    {¶ 39} On January 4, 2010, Shabazz requested a one day continuance of
    trial, which again served to toll the running of his speedy trial time.    On
    January 5, 2010, the trial was rescheduled to January 27, 2010, Shabazz’s
    speedy trial time began running, and ran for 23 calendar days. Thus, as of
    January 27, 2010, 243 days of Shabazz’s speedy trial time had been
    exhausted.
    16
    {¶ 40} On January 27, 2010, the case was called for trial, but Shabazz
    requested a continuance to February 16, 2010, which operated to toll his
    speedy trial time. On February 9, 2010, Shabazz filed a motion to dismiss
    for violation of his right to a speedy trial. This motion to dismiss operated to
    continue the tolling of his right to a speedy trial. R.C. 2945.72(E).
    {¶ 41} On February 16, 2010, Shabazz requested a one day continuance
    of the scheduled trial.      On February 17, 2010, Shabazz requested a
    continuance until February 22, 2010, which operated to further toll the
    running of his speedy trial time.     On February 22, 2010, the trial court
    continued the trial to February 25, 2010, because it was engaged in another
    trial. On February 25, 2010, the trial court continued the trial to March 1,
    2010, because it was still engaged in trial. These two continuances operated
    to restart the running of Shabazz’s speedy trial time. Between February 22,
    2010 and March 1, 2010, 8 calendar days elapsed. Thus, as of March 1, 2010,
    251 days of Shabazz’s speedy trial time had been exhausted.
    {¶ 42} On March 1, 2010, Shabazz requested a continuance of trial until
    March 15, 2010, in order to obtain an expert consultation on the DNA
    evidence. Shabazz’s continuance operated to toll the running of his speedy
    trial time. On March 15, 2010, Shabazz’s trial commenced. Thus, as of that
    date, based on our review of the docket, 251 days of Shabazz’s speedy trial
    time had been exhausted.
    17
    {¶ 43} In accordance with all of the foregoing, we conclude the trial court
    properly denied Shabazz’s motion dismiss the indictment.          Based on our
    calculation, and recognizing tolling events to the extent permitted by law,
    events largely occasioned by Shabazz’s numerous continuances, 251 speedy
    trial days elapsed in this matter, which is inside the statutory limit of 270
    days. Accordingly, we overrule the first assigned error.
    Manifest Weight
    {¶ 44} In the second assigned error, Shabazz argues his convictions were
    against the manifest weight of the evidence.
    {¶ 45} In State v. Wilson, 
    113 Ohio St.3d 382
    , 
    2007-Ohio-2202
    , 
    865 N.E.2d 1264
    , the Ohio Supreme Court addressed the standard of review for a
    criminal manifest weight challenge, as follows:
    “The criminal manifest-weight-of-the-evidence standard
    was explained in State v. Thompkins, 
    78 Ohio St.3d 380
    ,
    
    1997-Ohio-52
    , 
    678 N.E.2d 541
    . In Thompkins, the court
    distinguished between sufficiency of the evidence and
    manifest weight of the evidence, finding that these
    concepts differ both qualitatively and quantitatively. Id.
    at 386, 
    678 N.E.2d 541
    . The court held that sufficiency of
    the evidence is a test of adequacy as to whether the
    evidence is legally sufficient to support a verdict as a
    matter of law, but weight of the evidence addresses the
    evidence’s effect of inducing belief. Id. at 386-387, 
    678 N.E.2d 541
    . In other words, a reviewing court asks whose
    evidence is more persuasive — the state’s or the
    defendant’s? We went on to hold that although there may
    be sufficient evidence to support a judgment, it could
    nevertheless be against the manifest weight of the
    evidence. Id. at 387, 
    678 N.E.2d 541
    . ‘When a court of
    18
    appeals reverses a judgment of a trial court on the basis
    that the verdict is against the weight of the evidence, the
    appellate court sits as a ‘thirteenth juror’ and disagrees
    with the factfinder’s resolution of the conflicting
    testimony.’ Id. at 387, 
    678 N.E.2d 541
    , citing Tibbs v.
    Florida (1982), 
    457 U.S. 31
    , 42, 
    102 S.Ct. 2211
    , 
    72 L.Ed.2d 652
    .”
    {¶ 46} In the instant case, Shabazz claims the jury lost its way in convicting him of
    receiving stolen property and, likewise, the trial court lost its way in
    convicting him of having weapons while under disability. In making these
    claims, Shabazz contends that both the trial court and the jury lost their way
    by relying on the testimony of Merritt, who was promised an 18 month
    sentence in exchange for his testimony, when, in reality, Merritt was facing
    up to 90 years in prison on all the charges.
    {¶ 47} Preliminarily, we note the determination of weight and credibility of the
    evidence is for the trier of fact.         State v. Chandler, 10th Dist. No. 05AP-415,
    
    2006-Ohio-2070
    , citing State v. DeHass (1967), 
    10 Ohio St.2d 230
    , 
    227 N.E.2d 212
    .            The
    rationale is that the trier of fact is in the best position to take into account inconsistencies,
    along with the witnesses’ manner and demeanor, and determine whether the witnesses’
    testimonies are credible.   State v. Williams, 10th Dist. No. 02AP-35, 
    2002-Ohio-4503
    .
    {¶ 48} Accordingly, an appellate court may not substitute its view for that of the jury,
    but our role “in resolving conflicts in the evidence” is to determine whether the jury lost its
    19
    way thereby creating a manifest miscarriage of justice that requires a new trial.   Thompkins
    at 387.
    {¶ 49} Here, we are not disposed to reach such a conclusion.    At trial, Merritt
    admitted that he was testifying against Shabazz in exchange for an 18 month
    sentence, admitted that he had lied to detectives about his involvement in the
    robbery, and admitted that he had previous convictions including, but not
    limited to aggravated robbery, aggravated burglary, and assault on a peace
    officer.     Both the jury and the trial court were in a position to observe
    Merritt’s manner and demeanor and take into account any inconsistencies in
    his testimony.
    {¶ 50} Significantly, given that the jury acquitted Shabazz on all the
    charges relating to the robbery of the Dollar General store, they evidently
    chose not to believe all of Merritt’s testimony. Moreover, it is undisputed
    that when Shabazz was arrested, while attempting to sell the coins, he was
    found in possession of many of the other items that were taken from Dostie’s
    home. Thus, whether the jury believed that it was Shabazz or Merritt who
    burglarized Dostie’s home, it is without question that Shabazz was
    attempting to sell and was in possession of property that was stolen. As
    such, Shabazz’s claim that the jury lost its way in finding him guilty of
    receiving stolen property is unfounded.
    20
    {¶ 51} As it relates to Shabazz’s conviction for having weapons while
    under disability, regardless of whether Merritt’s overall testimony was
    suspicious, the trial court at least believed Merritt’s testimony that Shabazz
    had a shotgun and gave it to him to use in the robbery. State v. Morris,
    Cuyahoga App. No. 94923, 
    2011-Ohio-824
    .         This possession by Shabazz is
    enough to convict him of having a weapon while under disability. 
    Id.
    Accordingly, we overrule Shabazz’s second assigned error.
    Judgment affirmed.
    It is ordered that appellee recover of appellant its costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said court to carry this
    judgment into execution. The defendant’s conviction having been affirmed,
    any bail pending appeal is terminated. Case remanded to the trial court for
    execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    PATRICIA ANN BLACKMON, PRESIDING JUDGE
    FRANK D. CELEBREZZE, JR., J., and
    EILEEN A. GALLAGHER, J., CONCUR