State v. Godsey ( 2020 )

[Cite as State v. Godsey, 2020-Ohio-4223.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 20-COA-008
ISSAC GODSEY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 19-CRI-
209
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 27, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL BRIAN SMITH
Ashland County Prosecuting Attorney 755 White Pond Drive, Ste. 403
VICTOR R. PEREZ Akron, OH 44320
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, OH 44805
[Cite as State v. Godsey, 2020-Ohio-4223.]
Gwin, P.J.
{¶1} Defendant-appellant Issac Godsey [“Godsey”] appeals his convictions and
sentences after a jury trial in the Ashland County Court of Common Pleas.
Facts and Procedural History
{¶2} On September 20, 2019, Neil Burdick was visiting his son and his family in
Miamisburg, Montgomery County, Ohio. Miamisburg is just south of Dayton, Ohio. Mr.
Burdick drove from Pennsylvania with his daughter in his 1997 grey Jeep Grand
Cherokee. Mr. Burdick checked in at the Studio 6 across from the Dayton Mall on that
day between 3:30 pm and 4:00 pm. Mr. Burdick's daughter stayed with his son. The
license plate to Mr. Burdick’s Jeep Cherokee was Pennsylvania plate number “FVE
2250.” The license plate was attached to the Jeep when Mr. Burdick checked in to the
Studio 6 Motel. Mr. Burdick backed into a parking spot. After checking in, Mr. Burdick
visited with his son and his family. Mr. Burdick returned to the Studio 6 Motel and parked
in the same manner. The next day Mr. Burdick visited with his son and his family again.
When he returned to Studio 6 Motel, he pulled into a parking spot nose first and noticed
that his license plate was missing. Mr. Burdick walked to where he had previously parked
and did not find the license plate. Mr. Burdick went into the lobby, contacted the clerk
and called 911.
{¶3} Officer Brian Brenneman from the Miami Township Police Department
responded to the Studio 6 Motel. Mr. Burdick filed a stolen license plate police report with
Officer Brenneman. Mr. Burdick returned to Pennsylvania on Sunday, September 22,
2019. Mr. Burdick did not know Godsey and did not give anyone permission to take the
license plate from his Jeep Cherokee.
Ashland County, Case No. 20-COA-008 3
{¶4} Officer Brenneman entered Pennsylvania license plate number “FVE 2250”
as stolen into LEADS. Officer Brenneman met with the owner of the Studio 6 Motel and
reviewed the motel's security video footage for the period that Mr. Burdick was a
registered guest of the motel. Officer Brenneman did not see anything of consequence
during the period when the license plate was reported stolen. He then reviewed the
motel's security video from the night before. At about 3:30 a.m. on the video, Officer
Brenneman observed a similar Jeep to Mr. Burdick's Jeep pull in next to Mr. Burdick's
Jeep. Officer Brenneman observed a man get out of the other Jeep and walk off towards
a nearby Speedway gas station. Officer Brenneman then observed the same man come
back to the area behind Mr. Burdick's Jeep and, after a few minutes being behind Mr.
Burdick's Jeep, the male got back into the other Jeep. Officer Brenneman noticed that
the other Jeep that parked next to Mr. Burdick's Jeep on September 21, 2019 was very
similar to Mr. Burdick's Jeep. Officer Brenneman noticed that the other Jeep was lifted
and had larger tires. Officer Brenneman was also able to see how the other Jeep pulled
out of the parking spot next to Mr. Burdick and drove away from the area. Officer
Brenneman then observed that the other Jeep Cherokee pulled into another parking spot,
the male got out of the vehicle, and the male went to the back of the vehicle. Officer
Brenneman then observed the other Jeep Cherokee leave the parking lot. Officer
Brenneman did not see the other person remove the license plate from Mr. Burdick’s
Jeep. The license plate is not seen in the possession of the other driver or attached to
his Jeep in the video footage.
{¶5} On September 21, 2019, Ms. Jasia Rivers accompanied her partner Don
Williams from Columbus to the Cleveland area to buy a customized car. The couple
Ashland County, Case No. 20-COA-008 4
rented a car to make the trip to Cleveland. After picking up the car, Ms. Rivers drove the
rental car while Mr. Williams drove the car on their return trip to Columbus via I-71. Ms.
Rivers noticed that Mr. Williams started having problems with the car. Mr. Williams pulled
over to try to fix it. Not being able to fix the car, they decided to secure the car, leave it
on the roadside of I-71, and return the next day with a car hauler to take the broken down
car to Columbus. Before they returned to Columbus, an unidentified officer stopped by
to assist them and told them that it was o.k. to leave the car there for a day.
{¶6} On September 22, 2019, Mr. Williams and Ms. Rivers rented a truck with a
car hauler and returned to where they had left the car. As they were traveling northbound
on I-71 Ms. Rivers saw that the passenger door to the car was up and open. Ms. Rivers
also saw an SUV in front of the car. Ms. Rivers called 911. Mr. Williams drove to the
next highway break on I-71 turned around and started driving southbound on I-71. Mr.
Williams pulled up in front of the SUV and the car and parked on the roadside of I-71.
Ms. Rivers jumped out of the rental truck and saw that someone was still inside of the
car. Ms. Rivers could still see legs hanging out of the passenger side of the car. Ms.
Rivers saw two women in the SUV and they started yelling. Ms. Rivers started running
towards the car so she could slow down the person in the car. As she was running
towards the car, Ms. Rivers saw Godsey had the car's expensive after-market car radio
in his hands. Ms. Rivers ran towards the back of the SUV and the car to stop Godsey
from stealing the radio and he pushed her out of the way. On cross-examination, Ms.
Rivers testified that Godsey “stiff-armed” her when he pushed her out of the way. Ms.
Rivers tried to punch Godsey to slow him down. After pushing Ms. Rivers out of the way,
Godsey ran towards the SUV's driver's side. Godsey then started tussling with Mr.
Ashland County, Case No. 20-COA-008 5
Williams over the radio. Ms. Rivers was still on the phone with 911 and was giving the
call taker a description of what was happening. Ms. Rivers then opened the front
passenger door to the SUV and tried to take the keys out of the ignition of the SUV to
stop Godsey and his companions from attempting to leave. However, Godsey was able
to get inside of the SUV and drove off after fighting off Mr. Williams. Ms. Rivers gave 911
the license plate number on the SUV, Pennsylvania plate number “FVE 2250.” Ms. Rivers
received a bruise to her arm and scars to her hand during the altercation. Ms. Rivers had
never met Godsey before that day and did not give him permission to take the radio out
of the car.
{¶7} On September 21, 2019, after renting a truck and a car hauler, Mr. Williams
was driving Northbound on I-71 when Ms. Rivers saw that the 1987 Chevy Caprice's
passenger door was open. Ms. Rivers also told Mr. Williams that someone was inside of
the car, and that there was a Jeep in front of the car. Ms. Rivers called 911 as Mr. Williams
was concentrating on driving and looking for the closest turn around. Mr. Williams did not
recognize the Jeep stopped in front of the car and had never seen it before. Mr. Williams
got out of the rented truck and saw that Godsey was out of the car. Mr. Williams heard
the women in the Jeep screaming for Godsey to get back in the Jeep. Mr. Williams saw
that Godsey had in his hands the radio taken from Mr. Williams’s broken-down car. Mr.
Williams saw Godsey put a move on Ms. Rivers. Mr. Williams intercepted Godsey by the
Jeep's driver's side door. Mr. Williams tried to take the radio back from Godsey. Godsey
tussled with Mr. Williams for the radio. During the struggle Godsey was able to get inside
of the Jeep; however, he continued to fight with Mr. Williams. Mr. Williams was trying to
stop Godsey from leaving the scene; however, Godsey was able to drive off in the Jeep.
Ashland County, Case No. 20-COA-008 6
Mr. Williams hurt his ribs and received scratches to his hands during the scuffle for the
radio when Godsey kicked and threw punches at him.
{¶8} Trooper Richard Pollard from the Ohio State Highway Patrol was working
on Saturday, September 21, 2019 when he came across a customized 1987 Chevy
Caprice at the shoulder of Southbound I-71 near milepost 194 in Ashland County. The
car appeared to be disabled and abandoned. Trooper Pollard put a 48-hour removal tag
on the 1987 Chevy Caprice and continued with his shift. While he was having lunch with
other Ohio State Highway Patrol Officers, Trooper Pollard received a call for a
theft/physical altercation around 194 milepost. Dispatch provided the description of the
vehicle as a tan or brown Jeep Cherokee with Pennsylvania plate “FVE 2250.” Dispatch
also informed them that a black male, who was later identified as Godsey, was driving the
Jeep Cherokee. The Troopers attempted to stop the Jeep Cherokee but Godsey
continued driving southbound on I-71. During the chase, Trooper Pollard observed the
Pennsylvania license plate “FVE 2250” on the Jeep. Dispatch informed the Troopers
involved in the chase that the license plate on the Jeep Cherokee had been reported
stolen.
{¶9} Godsey eventually stopped the Jeep Cherokee and the Troopers
proceeded to conduct a felony stop. After Godsey was taken into custody, he was
advised of his rights. Godsey told Trooper Pollard that he was driving southbound on I-
71 when he saw the 1987 Chevy Caprice on the side of the road and believed that it
belonged to someone that he knew. Godsey stopped to check on the car and was jumped
by other people. During the video playback of the felony traffic stop Godsey told Trooper
Pollard that he had "found the license plate" but that he knew that it went to a Jeep.
Ashland County, Case No. 20-COA-008 7
{¶10} On October 10, 2019, the Ashland County Grand Jury returned a three-
count indicted against Godsey. Godsey was charged with Robbery, a second-degree
felony in violation of R.C. 2911.02(A)(2); Robbery, a third-degree felony in violation of
R.C. 2911.02(A)(3); and Receiving Stolen Property, a fifth-degree felony in violation of
R.C. 2913.51(A).
{¶11} The case proceeded to a trial by jury on December 10, 2019. On December
11, 2019, the jury found Godsey guilty of all counts. On January 6, 2020, following a
sentencing hearing, the trial court sentenced Godsey to an indefinite sentence of 6 to 9
years in prison on Count One; 24 months in prison on Count Two; and 9 months in prison
on Count Three. The trial court ordered that the sentences on Counts Two and Three be
served concurrently to Godsey's sentence on Count One. The trial court credited Godsey
with 106 days served, and ordered that Godsey's supervision on post-release control be
revoked and that 789 days of Godsey's prior, suspended prison sentence be re-imposed.
Assignments of Error
{¶12} Godsey raises three Assignments of Error,
{¶13} “I. APPELLANT’S CONVICTIONS WERE NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶14} “II. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶15} “III. THE TRIAL COURT'S DECISION NOT TO GIVE THE JURY AN
INSTRUCTION ON ATTEMPTED THEFT, OR THEFT, ON COUNT TWO OF THE
INDICTMENT WAS AN ABUSE OF DISCRETION.”
Ashland County, Case No. 20-COA-008 8
I. & II.
I.
{¶16} In his First Assignment of Error, Godsey argues that there was insufficient
evidence to support his convictions. In his Second Assignment of Error, Godsey contends
his convictions are against the manifest weight of the evidence.
1.1. Standard of Appellate Review– Sufficiency of the Evidence.
{¶17} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,
621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶18} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the
evidence in the 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.” Jenks at
Ashland County, Case No. 20-COA-008 9
paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess
the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]
would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”
State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at
paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on
sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by
the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
1.1.1 Issue for Appeal: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
of Godsey’s guilt on each element of the crimes for which he was convicted beyond a
reasonable doubt.
1.1.2 Count 1 – Robbery - Inflict, attempt to inflict, or threaten to inflict
physical harm on Donald Williams and/ or Jasia Rivers.
{¶19} To find Godsey guilty of Robbery as alleged in Count I of the indictment, the
jury would have to find beyond a reasonable doubt that Godsey, in attempting or
committing a theft offense or in fleeing immediately after the attempt or offense inflicted,
attempted to inflict, or threaten to inflict physical harm on Donald Williams and/or Jasia
Rivers. R.C. 2911.02(A)(2); 2T. at 2721. R.C. 2901.01 states, in relevant part, "'Physical
1For clarity, references to Godsey’s jury trial will be referred to as “__T.__,” signifying the volume
and the page number.
Ashland County, Case No. 20-COA-008 10
harm to persons' means any injury, illness, or other physiological impairment, regardless
of its gravity or duration."
{¶20} In the case at bar, the evidence established that Godsey did not have an
ownership or possessory interest in the broken down car or the radio contained inside the
car. Nor did Godsey have consent of the owner or person authorized to give consent to
remove the radio from the broken down car owned by Williams and his partner Rivers.
See, R.C. 2913.02.
{¶21} Godsey was inside the car when Williams and Rivers first saw him. 1T. at
144; 146. Rivers immediately called 911. Godsey pushed Rivers out of his way as he
clutched the radio he had removed from the car. 1T. at 148; 157. Rivers remained on
the telephone with 911. 1T. at 151. As Rivers reached inside Godsey’s SUV in an attempt
to take the keys from the ignition, Godsey was pushing her off and swinging “my way to
keep my arm from getting across.” 1T. at 154. Rivers received scars on her hand and
bruises on her arm. 1T. at 154.
{¶22} Williams testified that he was half inside Godsey’s vehicle and Godsey was
fighting him in an attempt to flee the scene. 1T. at 166. Godsey started the vehicle and
began to drive away and Williams testified that he was either kicked or struck by the
vehicle. 1T. at 166-168; 179. Godsey was also throwing punches at Williams. Williams
received scratches on his knuckles and sore ribs. 1T. at 168; 179.
{¶23} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Godsey in attempting or committing a theft offense or in fleeing immediately after the
attempt or offense inflicted, attempted to inflict, or threaten to inflict physical harm on
Ashland County, Case No. 20-COA-008 11
Donald Williams and/or Jasia Rivers. We hold, therefore, that the state met its burden of
production regarding the element of Robbery and, accordingly, there was sufficient
evidence to support Godsey’s conviction.
1.1.3. Count 2 – Robbery-use of force or threatened the use of force against
Donald Williams.
{¶24} To find Godsey guilty of Robbery as alleged in Count II of the indictment,
the jury would have to find beyond a reasonable doubt that Godsey, in attempting or
committing a theft offense or in fleeing immediately after the attempt or offense Godsey
used force or threatened the use of force against Donald Williams. R.C. 2911.02(A)(3).
2T. at 279. R.C. 2901.01 states, in relevant part, “force” is defined as "any violence,
compulsion, or constraint physically exerted by any means upon or against a person or
thing."
{¶25} Godsey took the radio from Williams’s car without permission. 1T. at 164.
Godsey tussled with Williams while clutching the radio and attempting to make his
escape. 1T. at 165. Williams testified that he was half inside Godsey’s vehicle and
Godsey was fighting him in an attempt to flee the scene. 1T. at 166. Godsey started the
vehicle and began to drive away and Williams testified that he was either kicked or stuck
by the vehicle. 1T. at 166-168; 179. Godsey was also throwing punches at Williams.
Williams received scratches on his knuckles and sore ribs. 1T. at 168; 179.
{¶26} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Godsey in attempting or committing a theft offense or in fleeing immediately after the
attempt or offense used force or threatened the use of force against Donald Williams. We
Ashland County, Case No. 20-COA-008 12
hold, therefore, that the state met its burden of production regarding the element of
Robbery and, accordingly, there was sufficient evidence to support Godsey’s conviction.
1.1.4. Count 3 – Receiving stolen property –Pennsylvania License Plate
Number FVE 2250.
{¶27} To find Godsey guilty of receiving stolen property, the trier of fact would
have had to find that Godsey received, retained, or disposed of the property of another,
knowing or having reasonable cause to believe the property had been obtained through
the commission of a theft offense. R.C. 2913.51(A). A theft offense includes “theft,” which
involves knowingly obtaining control over the property of another without that person’s
consent. R.C. 2913.02(A)(1).
{¶28} The criteria for determining whether a defendant knew or should have
known that property has been stolen were set forth in State v. Davis, 49 Ohio App.3d 109,
550 N.E.2d 966(8th Dist. 1988); State v. Yeargan, 5th Dist. Delaware No. 16CAA060028,
2017-Ohio-1325, ¶19. The factors include: 1) the defendant’s unexplained possession of
the merchandise; 2) the nature of the merchandise; 3) the frequency with which such
merchandise is stolen; 4) the nature of the defendant’s commercial activities; and 5) the
relatively limited time between the theft and the recovery of the merchandise. Id. at 112,
550 N.E.2d 966; Yeargan, ¶19. Knowledge that property is stolen may be inferred from
circumstantial evidence, such as a defendant’s unexplained possession of stolen
property. State v. Hankerson, 70 Ohio St.2d 87, 92, 434 N.E.2d 1362 (1982). R.C.
2901.22(B) sets forth the definition of how and when a person acts knowingly,
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will
Ashland County, Case No. 20-COA-008 13
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶29} Whether a person acts knowingly can only be determined, absent a
defendant’s admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Johnson, 56 Ohio St.3d 35, 38,381 N.E.2d 637(1978)
citing State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313(1936): State v. Rojas, 64 Ohio
St.3d 131, 139, 592 N.E.2d 1376(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763
N.E.2d 695(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant
acted knowingly is a subjective one, but it is decided on objective criteria.” Id. citing State
v. Adams, 4th Dist. Ross No. 94 CA 2041, 1995 WL 360247(June 8, 1995) and State v.
Paidousis, 10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1, 2001). See also,
State v. Butler, 5th Dist. Holmes No. 2012–CA–7, 2012–Ohio–5030, ¶ 25.
{¶30} In this case, Mr. Burdick did not give permission to Godsey to retain Mr.
Burdick's stolen license plate. When questioned by Trooper Pollard about the stolen
license plate Godsey responded that "he found the license plate" but he also knew that it
went to a Jeep. Accordingly, there is an inference that Godsey could not know that the
Pennsylvania license plate on the Jeep that he was driving belonged to another Jeep if
he just found it laying alongside the road or in a parking lot. Further, the video surveillance
Ashland County, Case No. 20-COA-008 14
footage shows an SUV similar to Godsey’s is parking next to Mr. Burdick’s Jeep. The
male driver exited that vehicle and acted suspiciously at the back of Mr. Burdick’s Jeep.
{¶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.” State v. Jenks, 61 Ohio
St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus, superseded by
State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct evidence inherently
possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the
syllabus. Furthermore, “[s]ince circumstantial evidence and direct evidence are
indistinguishable so far as the jury’s fact-finding function is concerned, all that is required
of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the
standard of proof beyond a reasonable doubt.” Jenks, 61 Ohio St.3d at 272, 574 N.E. 2d
492. While inferences cannot be based on inferences, a number of conclusions can result
from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990),
citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d
820(1955). Moreover, a series of facts and circumstances can be employed by a jury as
the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d
293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶32} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Godsey committed the crimes of receiving stolen property. We hold, therefore, that the
state met its burden of production regarding each element of the crimes of receiving stolen
Ashland County, Case No. 20-COA-008 15
property and, accordingly, there was sufficient evidence to support Godsey’s convictions
for receiving stolen property.
1.2. Standard of Appellate Review – Manifest Weight.
{¶33} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶34} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Ashland County, Case No. 20-COA-008 16
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶35} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
1.2.1. Issue for Appellate Review: Whether the jury clearly lost their way and
created such a manifest miscarriage of justice that the convictions must be reversed and
a new trial ordered.
{¶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
Ashland County, Case No. 20-COA-008 17
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶37} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw and heard Williams, Rivers, and Burdick subject to cross-examination. The
jury heard Godsey’s attorney’s arguments and explanations about the evidence and his
actions. The trial judge instructed the jury on the lesser offense of Theft in relation to
Count I of the Indictment finding that the jury could find from the evidence that the state
failed to prove that Godsey inflicted, attempted to inflict, or threatened to inflict physical
harm on Donald Williams and/or Jasia Rivers. 2T. at 239-240; 278. Thus, a rational basis
exists in the record for the jury’s decision.
Ashland County, Case No. 20-COA-008 18
{¶38} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find Godsey’s convictions are not
against the sufficiency or the manifest weight of the evidence. To the contrary, the jury
appears to have fairly and impartially decided the matters before them. The jury heard
the witnesses, evaluated the evidence, and was convinced of Godsey’s guilt. The jury
neither lost his way nor created a miscarriage of justice in convicting Godsey of the
offenses.
{¶39} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which Godsey was convicted.
{¶40} Godsey’s First and Second Assignments of Error are overruled.
III.
{¶41} In his Third Assignment of Error, Godsey contends that the trial judge
abused his discretion by failing to instruct the jury on the lesser-included offense of theft
on Count II of the Indictment.
3.1 STANDARD OF APPELLATE REVIEW.
{¶42} We review a trial court’s refusal to provide a requested jury instruction for
an abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).
Generally, “a trial court must fully and completely give the jury all instructions which are
relevant and necessary for the jury to weigh evidence and discharge its duty as the fact
Ashland County, Case No. 20-COA-008 19
finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the
syllabus.
{¶43} “Even though an offense may be statutorily defined as a lesser included
offense of another, a charge on such lesser included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio
St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. In making this determination,
the court must view the evidence in a light most favorable to defendant. State v. Smith,
89 Ohio St.3d 323, 331, 731 N.E.2d 645(2000); State v. Wilkins, 64 Ohio St.2d 382, 388,
415 N.E.2d 303(1980). Nevertheless, an instruction is not warranted every time any
evidence is presented on a lesser-included offense. There must be “sufficient evidence”
to “allow a jury to reasonably reject the greater offense and find the defendant guilty on a
lesser included (or inferior-degree) offense.” State v. Shane, 63 Ohio St.3d at 632-633,
590 N.E.2d 272; State v. Conway, 108 Ohio St.3d at 240,842 N.E.2d at 1027, 2006-Ohio-
791 at ¶ 134. The Ohio Supreme Court has cautioned,
Past decisions of this court have sometimes given the erroneous
impression that, whenever there is “some evidence” that a defendant in a
murder prosecution may have acted in such a way as to satisfy the
requirements of the voluntary manslaughter statute, an instruction on the
inferior-degree offense of voluntary manslaughter must always be given.
See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378
N.E.2d 738, paragraph four of the syllabus. See, also, Tyler, supra, 50 Ohio
St.3d at 37, 553 N.E.2d at 592. That clearly never has been the law in this
Ashland County, Case No. 20-COA-008 20
state, nor is it the law today. The “some evidence” referred to in those cases
is simply an abbreviated way of saying that a jury instruction must be given
on a lesser included (or inferior-degree) offense when sufficient evidence is
presented which would allow a jury to reasonably reject the greater offense
and find the defendant guilty on a lesser included (or inferior-degree)
offense.
To require an instruction to be given to the jury every time “some
evidence,” however minute, is presented going to a lesser included (or
inferior-degree) offense would mean that no trial judge could ever refuse to
give an instruction on a lesser included (or inferior-degree) offense. Trial
judges are frequently required to decide what lesser-included (or inferior-
degree) offenses must go to the jury and which must not. The jury would
be unduly confused if it had to consider the option of guilty on a lesser
included (or inferior-degree) offense when it could not reasonably return
such a verdict.
State v. Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272 (emphasis in original).
{¶44} In our disposition of Godsey’s First and Second Assignments of Error we
found that there was sufficient evidence that Godsey used force or threatened the use of
force against Donald Williams in violation of R.C. 2911.02(A)(3). Accordingly, to be
entitled to a jury instruction on the lesser offense of Theft, the record must contain
sufficient evidence which would allow a jury to reasonably reject the greater offense and
find the defendant guilty on a lesser included (or inferior-degree) offense.
Ashland County, Case No. 20-COA-008 21
{¶45} There is no question that Godsey committed a theft offense when he stole
the radio from Williams’s car. The question is therefore, whether the record contains
sufficient evidence for a jury to reasonably reject the greater offense by finding that
Godsey did not use force or threatened the use of force against Donald Williams in
attempting or committing a theft offense or in fleeing immediately after the attempt or
offense.
{¶46} “Force” means any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing. R.C. 2901.01(A)(1). In the case at bar,
evidence was presented that Godsey took the radio from Williams’s car without
permission. 1T. at 164. Godsey tussled with Williams while clutching the radio and
attempting to make his escape. 1T. at 165. Godsey presented no evidence to controvert
the fact that he did not have a right to remove the radio from Williams’s car. Godsey did
not present any evidence to controvert the testimony of Williams that Godsey struggled
to maintain control of the radio and to prevent Williams from obtaining the radio as Godsey
tried to make his escape.
{¶47} Under these particular facts and circumstances we cannot find that the trial
court abused its discretion in determining that there was not sufficient evidence for a jury
to reasonably reject the greater offense, in this instance robbery pursuant to R.C.
2911.02(A)(3), and find Godsey guilty of the lesser offense of theft pursuant to R.C.
2913.02.
{¶48} Godsey’s Third Assignment of Error is overruled.
Ashland County, Case No. 20-COA-008 22
{¶49} The judgment of the Ashland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Wise, Earle, J., concur