State v. Stewart

[Cite as State v. Stewart, 2018-Ohio-3517.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1107
Appellee Trial Court No. CR0201603360
v.
Marcus Stewart DECISION AND JUDGMENT
Appellant Decided: August 31, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Stephen D. Long, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Marcus Stewart, appeals the April 18, 2017 judgment of the
Lucas County Court of Common Pleas, where he was sentenced to two years of
incarceration, after he was found guilty of burglary. For the reasons which follow, we
affirm.
[Cite as State v. Stewart, 2018-Ohio-3517.]
Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
1. The trial court erred in allowing the victim to testify as to
statements purportedly told to her by her neighbors, over the objection of
appellant.
2. Appellant was denied the effective assistance of counsel where
counsel open [sic] the door for the admission of hearsay testimony and
waived appellant’s right to confront witness against him.
3. The trial court erred in denying appellant’s motion for acquittal
and renewed motion for acquittal and the verdict was not supported by
sufficient evidence.
4. The verdict was against the manifest weight of the evidence.
Background
{¶ 3} The victim’s home was burglarized on the afternoon of December 19, 2016.
Items which were stolen from the victim’s home included a flat screen television,
videogame consoles, controllers and games. Shortly after the burglary, and in close
proximity to the victim’s home, appellant was found in possession of the flat screen
television.
{¶ 4} On December 28, 2016, appellant was indicted for burglary, in violation of
R.C. 2911.12(A)(2) and (D). He entered a plea of not guilty to the charge.
{¶ 5} The case went to trial on April 17, 2018. Toledo Police Department
(“TPD”) Officer David Donovan testified that on the day of the burglary, he was flagged
down by a frantic individual and informed that a male was walking down the alley
carrying a large television. The concerned citizen said the man was wearing a blue and
white baseball jacket. Officer Donovan alerted nearby units of the suspicious activity,
gave a description of the suspect, and proceeded to search for the subject. The officer
noted “[t]hat time of the year was very, very thick with snow, and they don’t plow
alleys.”
{¶ 6} TPD Officer Michael Garcia testified he spotted a male in the alley wearing
a blue baseball style coat. Officer Garcia was unable to turn into the alley immediately,
but when he entered the alley from the opposite side, “[he] saw a gray car facing towards
[him], and the truck closes, and we see a male, the male that had [a] blue baseball style
coat standing at the truck.” Officer Garcia pulled his vehicle next to the gray car and
asked the occupants of the gray car what they were doing. Appellant answered he was
getting a ride. Appellant entered the backseat of the car, and the car drove off. Officer
Garcia’s vehicle got stuck in the snow so he relayed a description of the gray car and its
direction of travel to Officer Donovan’s unit. In court, Officer Garcia identified appellant
as the man he saw that day.
{¶ 7} Officer Donovan located the gray car and stopped it approximately 50 feet
away from the alley. The officer noted the man in the backseat of the car was wearing
the same clothes described by the concerned citizen, and the man was making “very
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frantic furtive movements.” When Officer Donovan opened the back door of the car
“there were controllers from Play Stations being removed from his person and shoved
under seats.” At trial, Officer Donovan identified appellant as the man he saw wearing
the blue and white baseball jacket that day.
{¶ 8} The three individuals in the gray car were questioned, and permission was
granted to search the car. A gun was discovered on the floorboard so the three men were
detained. The victim’s large, black flat screen television was recovered from the car’s
trunk.
{¶ 9} Meanwhile, Officer Garcia started walking properties to see if any house
was broken into. The sergeant he was with told him a neighbor “a couple houses down”
saw a male carrying a television. The sergeant then located a house with pry marks on
the rear door frame, with the door ajar. Officer Garcia and the sergeant searched the
home and determined no one was there. The victim then arrived home.
{¶ 10} TPD Officer Denise Fischer testified she was Officer Garcia’s partner on
December 19, 2016, when she heard on the radio the description of a black male wearing
a blue jacket that had a sports team on it carrying a television in an alley. Within a very
short time, the officer saw a black male standing in the alley with a sports jacket with
blue sleeves. The man did not have a television, but he was standing in the alley looking
around. Officer Fischer testified to the same events which occurred in the alley as
Officer Garcia. When the traffic stop of the gray car occurred, Officer Fischer assisted.
She helped to search the car and located a television in the trunk.
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{¶ 11} Appellant was placed in the back of Officer Fischer’s patrol vehicle.
Appellant initially provided a false name. While in the patrol vehicle, appellant threw a
bag of marijuana through the screen guard between the seats.
{¶ 12} Officer Fischer brought the television to the victim’s home and the victim
identified it as her television. Officer Fischer estimated the victim’s home was within a
house or two of the alley where she first saw appellant. In court, Officer Fischer
identified appellant as the man he saw that day.
{¶ 13} TPD Detective Greg Mattmore testified he interviewed appellant, and
appellant said he was walking when a guy walked up to him and offered him the
television for $40. Appellant did not have $40, so he gave the guy $20 and a bag of weed
and the guy gave appellant the television. Appellant said he was homeless and needed
money to survive. Appellant adamantly told the detective that the two men who were in
the car with him had nothing to do with the television.
{¶ 14} The victim testified she did not know appellant and did not give him
permission to be in her home or take her television. On December 19, 2016, the victim
left her home at about 3:15 p.m., briefly stopped back home to pick up a form, made sure
her home was securely locked, went to the doctor’s office and a restaurant, then returned
home at about 4:30 to 5:00 p.m. at the latest. When she arrived home, the police were
there. The victim looked around her house and noticed her door was damaged and a
screen was broken on the dining room window, neither of which was in that condition
when she left home. The victim discovered there were several items missing from her
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home, including her television. The victim also observed, outside of her house, that there
was a bucket turned upside-down underneath her dining room window, and there were
footprints in the snow around the bucket.
{¶ 15} The victim testified she spoke with a neighbor who knew appellant, and the
neighbor saw appellant leaving the victim’s front porch. The victim further testified
another neighbor saw appellant knocking on the side door of the victim’s home, and
trying to open the door.
{¶ 16} On April 18, 2018, the jury found appellant guilty of burglary. The court
sentenced appellant to two years of incarceration. The judgment was journalized
April 27, 2018, and appellant timely appealed.
Analysis
First Assignment of Error
{¶ 17} Appellant argues the trial court erred in allowing the victim to testify about
her neighbors’ accounts of events after appellant objected, as this constituted
inadmissible hearsay. Appellant takes issue with two instances of testimony.
{¶ 18} The first instance involved the prosecution’s questioning of what the
victim’s neighbor told the victim. The victim testified, “I went to them and they were
upset because they said that they knew the kid,” referring to appellant. The victim
continued, “the neighbor said that they drove up and seen him coming off my front
porch.” Appellant’s counsel objected to this testimony, but the trial court overruled the
objection.
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{¶ 19} The second instance occurred during cross-examination of the victim.
Appellant’s attorney asked the victim, “according to your neighbor [appellant] was on
your front porch, but not in the back or at the bucket, correct?” The victim responded she
was not able “to speak on he said[,] she said,” but then added that “the neighbor across
the street said he seen him knocking and trying to open up the side door.” This testimony
referenced a different neighbor. Appellant’s counsel did not object to this testimony.
{¶ 20} The state maintains the present sense impression exception applies to the
neighbor’s hearsay statement because, at the time the statement was made, the neighbor
was upset after observing appellant leave the porch of the victim’s residence. According
to the state, the emotional upset would indicate and permit a reasonable inference that the
neighbor’s statement was made either contemporaneously with the burglary or very soon
thereafter, thus the statement was trustworthy and admissible.
{¶ 21} Under Evid.R. 801(C), hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Hearsay is inadmissible “except as otherwise provided by the
Constitution of the United States, by the Constitution of the State of Ohio, by statute
enacted by the General Assembly not in conflict with a rule of the Supreme Court of
Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.”
Evid.R. 802. Exceptions to hearsay are enumerated in Evid.R. 803.
{¶ 22} Evid.R. 803(1) states the present sense impression is “a statement
describing or explaining an event or condition made while the declarant was perceiving
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the event or condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.” A present sense impression does not need to be made while under the
influence of emotion or trauma. 2016 Staff Note, Evid.R. 803(1).
{¶ 23} The principle underlying the present sense impression exception “‘is the
assumption that statements or perceptions, describing the event and uttered in close
temporal proximity to the event, bear a high degree of trustworthiness.’” (Citation
omitted.) Abraham v. Werner Enters., 6th Dist. Erie No. E-02-013, 2003-Ohio-3091,
¶ 26. “‘By making the statement at the time of the event or shortly thereafter, the minimal
lapse of time between the event and statement reflects an insufficient period to reflect on
the event perceived.’” Id. However, the present sense impression exception does not
apply in a situation when the period of time that elapsed between the event in question
and the statement sought to be admitted is not known or is not clear. State v. Carter, 3d
Dist. Seneca No. 13-17-10, 2017-Ohio-7443, ¶ 13-14.
{¶ 24} Here, it is undisputed that the victim’s testimony regarding what the
neighbors told her is hearsay. Upon review, appellant’s counsel objected to the first
instance of hearsay, but did not object to the second instance. Accordingly, appellant’s
challenge to the first instance of hearsay is subject to de novo review under the applicable
hearsay rule. See State v. Richcreek, 196 Ohio App. 3d 505, 2011-Ohio-4686, 964 N.E.2d
442, ¶ 32 (6th Dist.). We review appellant’s challenge to the second instance of
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hearsay using the plain error standard. See State v. Thompson, 141 Ohio St. 3d 254, 2014-
Ohio-4751, 23 N.E.3d 1096, ¶ 73; State v. Scott, 10th Dist. No. 05AP-1144, 2006-Ohio-
4981, ¶ 21.
Standards
{¶ 25} Applying the de novo standard of review, “‘errors relating to the trial
court’s admission of hearsay must be reviewed in light of Evid.R. 103(A) and
the standard established in Crim.R. 52(A), providing that such errors are harmless unless
the record demonstrates that the errors affected a party’s substantial right.’” (Citation
omitted.) Richcreek at ¶ 32. See also In re Dor B., 6th Dist. Wood No. WD-18-013,
2018-Ohio-2666, ¶ 60. “[A]n error may be harmless if the state’s case against the
accused is overwhelming.” State v. Ferguson, 5 Ohio St. 3d 160, 166, 450 N.E.2d 265
(1983), fn. 5. “[T]he cases where imposition of harmless error is appropriate must
involve either overwhelming evidence of guilt or some other indicia that the error did not
contribute to the conviction.” Id.
{¶ 26} Plain error is an obvious defect in the trial proceeding which affects
substantial rights. State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002). Plain
error does not exist unless it can be shown that but for the error, the outcome at trial
“‘clearly would have been otherwise.’” (Citation omitted.) State v. Lang, 129 Ohio St. 3d
512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108.
9.
First and Second Instances of Hearsay
{¶ 27} Our review of the record reveals that when the victim arrived home on the
afternoon of December 19, 2016, police were at her home conducting an investigation of
a burglary which had occurred while the victim was away. The police informed the
victim of the burglary. At some point, the victim spoke with neighbors and learned the
information concerning appellant, about which she testified at trial. There is no
indication in the record when the victim spoke with the neighbors. As such, the present
sense impression exception does not apply. See Carter, supra. We therefore find the
hearsay statements are not admissible under Evid.R. 803(1), and the trial court erred in
admitting the hearsay statements.
{¶ 28} Nevertheless, any error caused by the admission of the first instance of
hearsay was harmless in light of the overwhelming evidence of appellant’s guilt. The
state presented evidence, including the testimony of police officers and the crime victim
that: appellant was in a snow-covered alley within a house or two of the victim’s home
carrying a large, flat screen television during the time the victim was not home; appellant
was seen standing by a car’s trunk where the victim’s television was later found; when
stopped by police, appellant made furtive movements and gave a false name; appellant
was unknown to the victim; there was damage to the door frame and window screen of
the victim’s home and the door was open; appellant was apprehended within two hours of
the burglary; appellant was homeless; appellant told police he bought the television from
some guy walking down the street for $20 and a bag of weed; and, appellant was adamant
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when he told police the two men in the car with him had nothing to do with the
television.
{¶ 29} As to the second instance of hearsay, appellant has not demonstrated that
the result of his trial would have been different absent this statement. The record shows
the jury had sufficient, credible evidence to support its decision to convict appellant such
that this inadmissible evidence did not undermine the jury’s verdict. Thus, based on
properly admitted evidence, as set forth above, and disregarding the victim’s testimony
relating to what the neighbors said to her, we find the jury could conclude appellant
committed the burglary. Accordingly, the admission of the second instance of hearsay
did not rise to the level of plain error. Appellant’s first assignment of error is not well-
taken.
Second Assignment of Error
{¶ 30} Appellant contends he was denied the effective assistance of trial counsel
because counsel opened the door for the admission of hearsay testimony and waived
appellant’s right to confront witnesses against him.
Law
Ineffective Assistance of Counsel
{¶ 31} To prevail on an ineffective assistance of counsel claim, appellant must
show trial counsel’s performance fell below an objective standard of reasonable
representation and prejudice resulted from counsel’s deficient performance. State v.
Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus, citing
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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
“Because a court cannot second guess trial strategies and it has the benefit of hindsight,
there is a strong presumption that appointed counsel acted in a reasonable and competent
manner.” State v. Gaston, 6th Dist. Lucas No. L-06-1183, 2008-Ohio-1856, ¶ 31, citing
State v. Mason, 82 Ohio St. 3d 144, 157-158, 694 N.E.2d 932 (1998), and Strickland at
689. “Generally, when the action of the appointed counsel amounts to a trial tactic, it
cannot later be used in a challenge that the trial counsel rendered ineffective assistance of
counsel.” Gaston at ¶ 31.
{¶ 32} Here, appellant argues his trial counsel was ineffective because “counsel
opened the door for the admission of hearsay statements by [the victim]’s neighbors by
their questioning” during cross-examination. Appellant takes issue with the specific
question: “according to your neighbor [appellant] was on your front porch, but not in the
back * * * correct?” The victim responded by stating “the neighbor across the street said
he seen (sic) him knocking and trying to open up the side door.”
{¶ 33} A review of the record indicates trial counsel’s decision to ask the question
on cross-examination which prompted the victim’s response was within the scope of trial
strategy. Since the trial court had ruled during the preceding direct examination of the
victim that the victim’s statement about what the neighbor told her was admissible,
counsel may have tried to mitigate that testimony by emphasizing that the neighbor saw
appellant near the front door, as there was no evidence of damage to the victim’s front
door. The fact that counsel’s strategy ultimately was unsuccessful does not mean that
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counsel was ineffective. See State v. Wilkes, 6th Dist. Lucas No. L-12-1119, 2013-Ohio-
2369, ¶ 10. Moreover, given the significant circumstantial evidence of appellant’s guilt,
appellant cannot establish he was prejudiced by counsel’s conduct. Accordingly, we
conclude trial counsel was not ineffective.
Confrontation Clause
{¶ 34} The Sixth Amendment to the United States Constitution, the Confrontation
Clause (“the clause”), preserves the right of a criminal defendant “to be confronted with
the witnesses against him.” The United States Supreme Court stated the clause does not
allow “admission of testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). The main method for determining if the clause is involved, is to
resolve whether the statement is testimonial or non-testimonial. State v. Crager, 116
Ohio St. 3d 369, 2007-Ohio-6840, 879 N.E.2d 745, ¶ 41.
{¶ 35} A testimonial statement is in the nature of a solemn declaration or
affirmation which is made to establish or to prove a fact, such as ex parte in-court
testimony, affidavits, custodial examinations, depositions, confessions or statements
which are made under circumstances that would lead a witness to reasonably believe the
statements would be available for use at a later trial. Crawford at 51-52. However, a
“casual remark to an acquaintance” does not “bear testimony” as contemplated by the
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clause. Id. at 51. Such nontestimonial statements are governed by a state’s rules of
evidence on hearsay, and are exempted from scrutiny under the clause. Id. at 68.
{¶ 36} A reviewing court applies a de novo standard when assessing a claim that a
criminal defendant’s rights were violated under the clause. State v. McClain, 10th Dist.
Franklin No. 13AP-347, 2014-Ohio-93, ¶ 16.
{¶ 37} Here, the neighbors’ statements about which the victim testified at trial are
not comparable to nor do they fall under any of the investigative or prosecutorial
categories of the testimonial statements set forth in Crawford. Therefore, the neighbors’
statements to the victim are nontestimonial, and are exempted from scrutiny under the
clause. As such, appellant’s right to confront witnesses against him was not violated.
{¶ 38} In light of the foregoing, appellant’s second assignment of error is not well-
taken.
Third Assignment of Error
{¶ 39} Appellant claims the trial court erred in failing to grant his Crim.R. 29
motion. Appellant argues his Crim.R. 29 motion was meritorious because a jury cannot
reasonably infer a burglary occurred, despite the television being found in appellant’s
possession, where there is insufficient evidence to show “other circumstances indicative
of guilt.” In support, appellant cites to Methard v. State, 19 Ohio St. 363 (1869).
14.
Law
{¶ 40} Crim.R. 29(A) provides:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such
offense or offenses. The court may not reserve ruling on a motion for
judgment of acquittal made at the close of the state’s case.
{¶ 41} When reviewing a Crim.R. 29 motion, “[t]he 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.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “Circumstantial evidence and direct evidence inherently possess the same
probative value and therefore should be subjected to the same standard of proof.” Id. at
paragraph one of the syllabus. “It is fundamental that the weight to be given the evidence
and credibility of the witnesses are primarily for the trier of the facts.” State v. Thomas,
70 Ohio St. 2d 79, 79-80, 434 N.E.2d 1356 (1982). “Thus, in reviewing the legal
sufficiency of evidence to support a jury verdict, it is the minds of the jurors rather than a
reviewing court which must be convinced.” Id. at 80.
{¶ 42} In Methard, the Supreme Court of Ohio held that possession of stolen
goods soon after a theft of those goods does not raise a presumption of law that the
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possessor is guilty of the theft. Id. at paragraph three of the syllabus. A smokehouse was
burglarized, and goods were stolen. The defendant sold the goods the next day, then was
caught and charged with theft. The trial court articulated the law on theft for the jury as
follows:
[W]here there has been a larceny of goods, a person found in the possession
of the stolen goods recently thereafter is, in law, presumed to have
committed the larceny; and if there was a burglary and entry of said smoke-
house, in the night season, as charged, and a larceny of goods therein, and
the goods stolen, or any part thereof, were found in the possession of the
defendant the next day, the law presumes that he not only stole the
property, but that he also committed the burglary; and it is for the defendant
to show that he came honestly by the goods. Id. at 368.
{¶ 43} The Supreme Court took issue with the law as stated by the trial court, and
reversed, stating it was “not prepared to say that the facts of burglary, of larceny, and of
possession of the stolen goods soon thereafter by the accused, alone raise a presumption
of law that he is guilty of both the burglary and larceny.” Id. However, the Supreme
Court also stated:
The facts that a building was burglariously entered, goods stolen therefrom,
and the possession by the accused, soon thereafter, of the goods stolen, are
competent evidence to go to the jury, and, in connection with other
circumstances indicative of guilt, such as giving a false account, or refusing
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to give any account, of the manner in which, or the means by which, he
came into possession of the stolen goods, they may afford a strong
presumption of fact of the guilt of the accused, and warrant the jury in
finding him guilty of both the burglary and larceny. (Emphasis omitted.)
Id.
{¶ 44} We note Methard was issued in 1869, whereas R.C. 2911.12, which
abrogated the common law of Methard, was first promulgated in 1974. R.C. 2911.12(A)
sets forth the elements of burglary, and states in relevant part:
(A) No person, by force, stealth, or deception, shall * * *
(2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or
temporary habitation of any person when any person other than an
accomplice of the offender is present or likely to be present, with purpose
to commit in the habitation any criminal offense[.]
{¶ 45} The approach consistently taken by Ohio courts, since the passage of R.C.
2911.12, allows a jury to infer that “a defendant committed theft or burglary where there
is both a close temporal proximity between the commission of the crime and the
defendant’s possession of the stolen items, and the defendant fails to provide a credible
explanation for his possession of the stolen items or ‘other circumstances indicative of
guilt’ exist.” State v. Smith, 6th Dist. Lucas Nos. L-16-1113, L-16-1114, L-16-1115,
2017-Ohio-5762, ¶ 47.
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{¶ 46} Here, the state introduced the following evidence at trial: (1) appellant was
observed in the snowy alley close to the victim’s home carrying a large, flat screen
television during the time the victim was away from her home; (2) appellant was seen by
police standing by the trunk of a car, before getting into the backseat of the car; (3) when
police stopped the car, appellant was making frantic, furtive movements; (4) appellant
initially gave the police a false name; (5) police searched the car and found a television in
the trunk; (6) the victim identified the television as her property which had been stolen
from her home; (7) the victim did not know appellant nor did she give him permission to
go into her home and take her television; (8) the door frame and window screen of the
victim’s home were damaged and the door was ajar; (9) outside of the victim’s home was
an upside-down bucket underneath the window with the damaged screen; (10) the period
of time between when the burglary occurred and appellant was apprehended was less
than two hours; (11) appellant was seen in the alley within a house or two of the victim’s
home; (12) appellant admitted to police that he was homeless; (13) appellant told police
he bought the television from some guy walking down the street for $20 and a bag of
weed; and (14) appellant was adamant when he told police that the two men in the car
with him had nothing to do with the television.
{¶ 47} Construing the evidence in a light most favorable to the prosecution, we
find the circumstantial evidence presented by the state was sufficient to establish all of
the elements of burglary as set forth in R.C. 2911.12(A)(2). Accordingly, we find no
merit in appellant’s third assigned error, and it is found not well-taken.
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Fourth Assignment of Error
{¶ 48} Appellant asserts his conviction is against the manifest weight of the
evidence. Appellant argues “the evidence establishes at best that [appellant] was in
possession of a television which had been taken from a residence in a burglary, near
where the burglary occurred at approximately the time the burglary occurred.” Appellant
relies on the lack of direct evidence placing him at or inside the burglarized premises.
{¶ 49} The standard of review for manifest weight is the same in a criminal case
and a civil case, and the function of an appellate court is to determine whether the greater
amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St. 3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St. 3d 380, 387,
678 N.E.2d 41 (1997). “‘A manifest weight of the evidence challenge contests the
believability of the evidence presented.’” (Citation omitted.) State v. Liggins, 6th Dist.
Sandusky No. 16 CAS 32, 2018-Ohio-2431, ¶ 14. Since “[c]ircumstantial evidence and
direct evidence inherently possess the same probative value,” no distinction should be
made between the weight given to circumstantial and direct evidence. Jenks, 61 Ohio
St.3d at 272, 574 N.E.2d 492.
{¶ 50} When determining whether a conviction is against the manifest weight, we
must review the record, weigh the evidence and all reasonable inferences drawn from it,
consider the witnesses’ credibility and decide, in resolving conflicts in the evidence, if
the jury “clearly lost its way and created such a manifest miscarriage of justice that the
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conviction must be reversed and a new trial ordered.” State v. Prescott, 190 Ohio App. 3d
702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387.
{¶ 51} Here, after thoroughly reviewing the record, we conclude the evidence
weighs heavily in support of a burglary conviction. A significant amount of credible,
circumstantial evidence placed appellant near the burgled home and in possession of the
stolen television. Considering the admissible testimony and evidence presented at trial,
we cannot say the jury lost its way or created a manifest miscarriage of justice by
convicting appellant. Accordingly, the fourth assignment of error is not well-taken.
{¶ 52} Conclusion
{¶ 53} For the foregoing reasons, the April 18, 2017 judgment of the Lucas
County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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