State v. Davis

[Cite as State v. Davis, 2021-Ohio-142.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28796
:
v. : Trial Court Case No. 2019-CR-1829
:
WALTER DAVIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 22nd day of January, 2021.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
.............
DONOVAN, J.
-2-
{¶ 1} Defendant-appellant Walter Davis appeals his conviction for one count of
theft (stolen property as defined in R.C. 2913.71), in violation of R.C. 2913.02(A)(1), a
felony of the fifth degree; and one count of theft ($1,000 without consent), in violation of
R.C. 2913.02(A)(1), also a felony of the fifth degree. Davis filed a timely notice of appeal
on May 7, 2020.
{¶ 2} The incident which formed the basis for Davis’s convictions occurred on May
25, 2019, when the victim, Rodell Burton, was gambling at the Hollywood Gaming Dayton
Raceway in Dayton, Ohio. Burton testified that when he arrived at the casino, he was
carrying a cellphone and a black Gucci wallet containing several debit cards and $4,900
in cash. After being at the casino for only 15 minutes, Burton realized that his phone and
wallet were missing from the pockets of his pants. Burton testified that he immediately
approached casino security and asked if they had found a cellphone or wallet. After a
short time, security personnel returned Burton’s phone to him, but he never got his wallet
back. Burton testified that he looked around the area where he had been seated at the
casino but could not find his wallet.
{¶ 3} In security camera footage introduced at trial, Davis can be seen walking by
the area where Burton was gambling and also where the cellphone and wallet ostensibly
fell out of Burton’s pockets. Davis can be seen stopping in that area and picking up items
off the floor. Davis then walked back the way he had come and continued on his way,
eventually approaching casino employees and turning in the cellphone but not the wallet.
Davis then left the casino and walked to the VIP parking lot. Shortly thereafter, Davis
returned from the VIP parking lot and sat on a bench outside the casino; he then reentered
the casino, and a casino supervisor approached him. After being questioned, Davis was
-3-
ordered to leave the premises by casino personnel.
{¶ 4} Davis was indicted for two counts of theft on July 29, 2019. At his
arraignment on August 27, 2019, Davis stood mute, and the trial court entered a plea of
not guilty on his behalf. A jury trial was held on March 10, 2020. At trial, Davis testified
on his own behalf. Specifically, Davis testified that he found and returned Burton’s
cellphone to casino personnel. With respect to Burton’s wallet, Davis simply testified that
he never found it. Davis was found guilty of both counts of theft.
{¶ 5} On April 13, 2020, the trial court sentenced Davis to community control
sanctions for a period not to exceed five years. Significantly, Davis’s community control
sanctions did not include a period of local incarceration, residential treatment, or home
confinement.
{¶ 6} It is from this judgment that Davis now appeals.
{¶ 7} Davis’s first assignment of error is as follows:
THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY BECAUSE
THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 8} Davis contends that his convictions for two counts of theft were against the
manifest weight of the evidence. We note that Davis also challenges the sufficiency of
the evidence used to convict him. We will address both arguments, beginning with
sufficiency argument.
{¶ 9} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is
whether, after reviewing 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
-4-
a reasonable doubt.’ ” (Citations omitted.) State v. Crowley, 2d Dist. Clark No. 2007-CA-
99, 2008-Ohio-4636, ¶ 12.
{¶ 10} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-
6046, 837 N.E.2d 315, ¶ 69. “A claim that a jury verdict is against the manifest weight of
the evidence involves a different test. ‘The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered. The discretionary power to grant a new trial should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction.’ ”
(Citations omitted.) Id. at ¶ 71.
{¶ 11} This court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510, *4 (Oct. 24, 1997).
{¶ 12} “ ‘Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.’ ” State v. Flores-Lopez, 2d Dist. Montgomery No. 26964, 2016-
Ohio-7687, ¶ 26, quoting State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-
3161, ¶ 11. (Other citations omitted.) “Consequently, ‘a determination that a conviction
is supported by the weight of the evidence will also be dispositive of the issue of
-5-
sufficiency.’ ” Id., quoting State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-
2198, ¶ 15.
{¶ 13} In support of his first assignment, David specifically alleges that the
evidence presented by the State in the form of the security camera footage failed to prove
that he took Burton’s wallet, which contained cash and debit cards, so as to satisfy the
necessary elements of R.C. 2913.02(A)(1) or R.C. 2913.51(A). He asserts, therefore,
he could not be convicted of the theft counts.
{¶ 14} A “theft offense” includes, but is not limited to, a violation of R.C. 2913.02,
which provides that a person commits theft if he or she knowingly obtains or exerts control
over property without the consent of the owner with the purpose to deprive the owner of
the property. R.C. 2913.02(A)(1). “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 probably be of a certain nature. A person has knowledge of circumstances when
the person is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶ 15} For the first count of theft, the State was required to prove that the property
stolen was one or more credit cards. R.C. 2913.71(A). “ ‘Credit card’ includes, but is
not limited to, a card, code, device, or other means of access to a customer's account for
the purpose of obtaining money, property, labor, or services on credit, or for initiating an
electronic fund transfer at a point-of-sale terminal, an automated teller machine, or a cash
dispensing machine.” R.C. 2913.01(U). For the second count of theft, the State was
required to prove that the value of the property stolen was at least worth $1,000 but less
than $7,500.
{¶ 16} At trial, Burton testified that he did not know Davis and that Davis did not
-6-
have his permission or consent to take possession of Burton’s wallet or its contents.
Furthermore, Burton testified that, when he arrived at the casino, he was carrying a black
Gucci wallet containing several debit cards and $4,900 in cash, thus establishing the
value of the wallet and its contents to be over $1,000 but less than $7,500. Burton also
testified that his wallet contained two debit cards from Fifth Third Bank and two debit
cards from Regents Bank. One card from each bank was linked to Burton’s personal
accounts while the other cards were linked to business accounts. Burton testified that
any of the debit cards could be used to withdraw cash from an ATM and/or make
purchases, thus satisfying the definition of a credit card pursuant to R.C. 2913.01(U).
{¶ 17} The remaining elements of the charged offenses were satisfied by the
security camera footage introduced into evidence at trial. As previously stated, the
security footage depicted Davis walking by the area where Burton was gambling and
where the cellphone and wallet ostensibly fell out of Burton’s pockets. Davis can be seen
stopping in that area and picking items up off the floor. Davis then walked back the way
he had come, eventually approaching casino employees and turning in the cellphone but
not the wallet. Davis then left the casino and walked to the VIP parking lot, returned from
the VIP parking lot and sat on a bench outside the casino, then reentered the casino. A
casino supervisor then approached and questioned him regarding the wallet. Upon
review of the record, we find that the State presented sufficient evidence to support a
finding of each of the elements of the theft offenses contained in R.C. 2913.02(A)(1).
{¶ 18} Furthermore, having reviewed the record, we find no merit in Davis’s
manifest-weight challenge. It is well-settled that evaluating witness credibility is primarily
for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080,
-7-
¶ 7. Here the jury reasonably credited the testimony provided by the State's witnesses,
applied that evidence and all reasonable inferences to the elements of the offense, and
found Davis guilty. Additionally, the jury was free to discredit Davis’s testimony that he
only found Burton’s cellphone but not his wallet. Having reviewed the entire record, we
cannot find that the evidence weighed heavily against conviction or that a manifest
miscarriage of justice occurred.
{¶ 19} Davis’s first assignment of error is overruled.
{¶ 20} Davis’s second and final assignment of error is as follows:
THE TRIAL COURT FAILED TO ADEQUATELY CONSIDER THE
SENTENCING STATUTES PURSUANT TO O.R.C. 2929.11-2929.12,
ABUSING ITS DISCRETION IN SENTENCING APPELLANT.
{¶ 21} In his second assignment, Davis argues that the trial court erred when it
sentenced him to community control because it failed to properly consider all of the
relevant factors enumerated in R.C. 2929.11 and R.C. 2929.12.
{¶ 22} As this Court has previously noted:
“The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any
findings or give its reasons for imposing maximum or more than minimum
sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).
However, in exercising its discretion, a trial court must consider the statutory
policies that apply to every felony offense, including those set out in R.C.
2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-
Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
-8-
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.
{¶ 23} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender's conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 24} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct
is more serious than conduct normally constituting the offense. These factors include
whether the physical or mental injury to the victim was exacerbated because of the
physical or mental condition of the victim; serious physical, psychological, or economic
harm suffered by the victim as a result of the offense; whether the offender's relationship
with the victim facilitated the offense; and whether the offender committed the offense for
hire or as a part of an organized criminal activity.
{¶ 25} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct
is less serious than conduct normally constituting the offense, including whether the victim
-9-
induced or facilitated the offense, whether the offender acted under strong provocation,
whether, in committing the offense, the offender did not cause or expect to cause physical
harm to any person or property, and the existence of substantial grounds to mitigate the
offender's conduct, although the grounds are not enough to constitute a defense. R.C.
2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the
offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the
sentencing court to consider the offender's military service record.
{¶ 26} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,
only if it “clearly and convincingly” finds either (1) that the record does not support certain
specified findings or (2) that the sentence imposed is contrary to law.
{¶ 27} In his sentencing memorandum, Davis specifically requested that the trial
court sentence him to a period of community control not to exceed five years. The trial
court imposed that very sentence. “ ‘The doctrine of invited error is a corollary of the
principle of equitable estoppel. Under the doctrine of invited error, an appellant, in either
a civil or a criminal case, cannot attack a judgment for errors committed by himself or
herself; for errors that the appellant induced the court to commit; or for errors into which
the appellant either intentionally or unintentionally misled the court, and for which the
appellant is actively responsible. Under this principle, a party cannot complain of any
action taken or ruling made by the court in accordance with that party's own suggestion
or request.’ ” Daimler/Chrysler Truck Fin. v. Kimball, Champaign App. No. 2007-CA-07,
-10-
2007-Ohio-6678, ¶ 40, quoting 5 Ohio Jurisprudence 3d (1999, Supp.2007) 170-171,
Appellate Review, Section 448. Here, Davis received the specific sentence that he
requested. Therefore, Davis cannot now challenge his sentence as being contrary to
law. Nevertheless, we find that the trial court complied with R.C. 2929.11 and R.C.
2929.12 when it sentenced Davis to community control sanctions. To the extent that
Davis explicitly challenges the revocation of his Hollywood Gaming Dayton Raceway
Player’s card as a condition of his community control, such a condition was reasonably
related to his theft convictions.
{¶ 28} Davis’s second assignment of error is overruled.
{¶ 29} Both of his assignments of error having been overruled, the judgment of the
trial court is affirmed.
.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Thomas M. Kollin
Hon. Timothy N. O’Connell