State v. Thomas

[Cite as State v. Thomas, 2016-Ohio-6996.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 15 JE 0013
V. )
) OPINION
DOREN T. THOMAS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of County, Ohio
Case No. 14 CR 102, 14 CR 98
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Jane Hanlin
Prosecutor
Edward L. Littlejohn Jr.
Assistant Prosecutor
16001 S.R. 7
Steubenville, Ohio 43952
For Defendant-Appellant Attorney Bernard C. Battistel
2021 Sunset Blvd.
Steubenville, Ohio 43952
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: September 22, 2016
[Cite as State v. Thomas, 2016-Ohio-6996.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, Doren Thomas, appeals from Jefferson County
Common Pleas Court judgments convicting him of burglary in one case and
aggravated burglary and robbery in another case.
{¶2} On June 23, 2011, Wintersville police responded to a burglary call at
John Mavromatis’s home. Two firearms were stolen from Mavromatis’s house. The
officer who responded to the burglary noticed the deadbolt on the basement door had
been tampered with and the lock was “beat up.” The officer also found a blood
splatter on the door. DNA testing indicated that the blood belonged to appellant.
{¶3} On April 14, 2014, Cross Creek Township police responded to a home
invasion call at the home of Robert and Harriet Coker. The Cokers reported to police
that three men broke into their home through their basement door while they were
home. The men threatened the Cokers and ran out of their house with two jewelry
boxes and a laptop computer. A fourth man was waiting in a getaway car. One of
the men dropped a jewelry box and the computer in the street. A fingerprint and
palm print found on the dropped jewelry box was later identified as belonging to
appellant.
{¶4} On August 6, 2014, a Jefferson County Grand Jury indicted appellant
on one count of burglary, a second-degree felony in violation of R.C. 2911.12(A)(2),
and two counts of theft, third-degree felonies in violation of R.C. 2913.02(A)(1) and
(B)(4), arising from the crimes at the Mavromatis home.
{¶5} That same day, in a separate indictment, the grand jury indicted
appellant on one count of aggravated burglary, a first-degree felony in violation of
R.C. 2911.11(A)(1), and one count of robbery, a second-degree felony in violation of
R.C. 2911.02(A)(2), arising from the crimes at the Coker home.
{¶6} The cases proceeded to two separate jury trials. In the first case
involving the crimes at the Mavromatis home, the jury found appellant guilty of
burglary but not guilty of the two theft charges. In the second case involving the
crime at the Coker home, the jury found appellant guilty of both aggravated burglary
and robbery.
{¶7} At a subsequent sentencing hearing, the trial court sentenced appellant
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to three years for the burglary conviction. It sentenced him to seven years on the
aggravated burglary conviction and seven years on the robbery conviction, to run
concurrently with each other. The court then ordered the three-year sentence to run
consecutive to the concurrent seven-year sentences for a total prison term of ten
years.
{¶8} Appellant filed a timely notice of appeal on June 9, 2015. He now
raises three assignments of error. Appellant’s first two assignments of error deal with
his burglary conviction. His third assignment of error deals with his aggravated
burglary and robbery convictions. We will address the first two assignments of error
in reverse order for ease of discussion.
{¶9} Appellant’s second assignment of error states:
THE STATE PRESENTED INSUFFICIENT EVIDENCE TO
SUPPORT A CONVICTION OF BURGLARY.
{¶10} Here appellant contends there was no evidence that he entered or
trespassed into Mavromatis’s house. He states the only evidence that connected him
to the crime scene was a drop of blood that was found on the outside of an exterior
door. Appellant also argues the state failed to prove that he had the purpose to
commit a criminal offense in the house. He points out that the jury found him not
guilty of the two theft charges that were allegedly committed inside the house.
{¶11} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio
St.3d at 113.
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{¶12} The jury convicted appellant of burglary in violation of R.C.
2911.12(A)(2), which provides that no person, by force, stealth, or deception, shall
trespass in an occupied structure with the purpose to commit a criminal offense
therein.
{¶13} Wintersville Police Officer Chris Wright testified that he responded to a
burglary call on June 23, 2011, at Mavromatis’s house. (April 21, Tr. 65-66). Officer
Wright was able to determine that the burglar or burglars gained entrance to the
house at the basement door. (April 21, Tr. 67). He noticed that the lock was beat up
and the dead bolt had been tampered with. (April 21, Tr. 67). He also noticed
broken glass. (April 21, Tr. 73-74). Officer Wright also found a blood splatter on the
basement door. (April 21, Tr. 69). He then contacted the Ohio Bureau of Criminal
Identification and Investigation (BCI) to process the scene. (April 21, Tr. 70).
{¶14} Officer Wright also testified that a neighbor reported seeing a white
male (appellant is a black male) leaving Mavromatis’s house at approximately 10:30
p.m. the previous night. (April 21, Tr. 71). The white male was carrying a rug with
something in it. (April 21, Tr. 72). The white male got into a white Mitsubishi. (April
21, Tr. 72). Officer Wright testified that in 2011, appellant owned a white Mitsubishi.
(April 21, Tr. 77-78).
{¶15} Mavromatis testified that two guns were stolen from his home. (April
21, Tr. 86-87).
{¶16} Edward Lulla is the BCI crime scene investigator who responded to the
Mavromatis burglary. Lulla testified that he observed a small amount of what
appeared to be blood on the exterior side of Mavromatis’s back door. (April 21, Tr.
93-94). He collected the substance so that it could be transported to the crime
laboratory. (April 21, Tr. 94). Lulla also stated the window was broken, which
appeared to be the point of entry. (April 21, Tr. 94). Lulla testified that the suspected
blood was dry when he observed it. (April 21, Tr. 98). But he stated the blood was
bright red, as opposed to dark red, which indicated to him that it was not very old
because blood gets darker the longer it has been sitting on an object. (April 21, Tr.
98-99).
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{¶17} Heather Bizub is the BCI forensic scientist who tested the blood found
at the scene. Bizub testified that the substance recovered was in fact blood. (April
21, Tr. 107-108). She stated that after confirming the substance was blood, she
compared the DNA from the blood to a known sample of appellant’s DNA. (April 21,
Tr. 108). Bizub testified that the DNA in the blood matched appellant’s DNA. (April
21, Tr. 112). She testified the frequency of that particular DNA profile was 1 in 3
sextillion, 797 quintillion unrelated individuals. (April 21, Tr. 111).
{¶18} In addition to instructing the jury on the elements of burglary, the court
also instructed the jury on aiding and abetting. Thus, the jury was able to convict
appellant if they found that he supported, assisted, encouraged, cooperated with,
advised, or incited the principal offender in committing the burglary.
{¶19} The state presented sufficient evidence to support appellant’s burglary
conviction. The evidence demonstrated the following. Someone broke into
Mavromatis’s back/basement door by breaking a window and tampering with the
lock. Blood was found on the door that was used to gain access to the house. The
DNA from the blood matched appellant’s DNA. Two guns were stolen from
Mavromatis. A white male, which could not have been appellant, was seen leaving
Mavromatis’s house carrying a rug with something in it. The white male got into a
white Mitsubishi. Appellant owned a white Mitsubishi at that time. Construing this
evidence in the light most favorable to the state, as is required in a sufficiency of the
evidence review, demonstrates that the state presented evidence going to each of
the elements of burglary.
{¶20} Appellant asserts there was no evidence that he actually entered or
trespassed into Mavromatis’s house. But he could be convicted of burglary without
ever setting foot into the house by way of aiding and abetting the white male who
was seen leaving Mavromatis’s house with something rolled up in a rug. At the very
least, the evidence was sufficient to prove that appellant helped the white male break
into Mavromatis’s basement door and then drove the getaway car after the white
male burglarized the house. This evidence is sufficient to convict appellant of
burglary by way of aiding and abetting.
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{¶21} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶22} Appellant’s first assignment of error states:
THE DEFENDANT-APPELLANT’S CONVICTION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶23} In this assignment of error, appellant contends the evidence weighed
heavily against his conviction.
{¶24} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶25} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[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. No. 99-CA-149, 2002-Ohio-1152.
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{¶26} Appellant contends the only evidence against him in this case was a
drop of blood on an exterior door. But what appellant does not mention is that this
drop of blood was matched to his DNA at the frequency of one in
3,797,000,000,000,000,000,000. Thus, the evidence demonstrated that it was his
blood on the door. Additionally, this was the door that was tampered with and used
to gain entry into Mavromatis’s house.
{¶27} Appellant also argues there was no evidence that he entered the house
and stole the guns. But the evidence did not have to prove that appellant entered the
house and stole the guns. It was enough that appellant aided and abetted a white
male who stole the guns by helping him gain access to the house and by providing
the white Mitsubishi getaway car.
{¶28} Finally, appellant asserts there were no eyewitnesses to place him at
the scene. Appellant is correct that no eyewitnesses placed him at the scene. But
appellant’s DNA placed him at the scene.
{¶29} Based on the above, the jury’s verdict was supported by the manifest
weight of the evidence. Accordingly, appellant’s first assignment of error is without
merit and is overruled.
{¶30} Appellant’s third assignment of error deals with his aggravated burglary
and robbery convictions. Appellant’s third assignment of error states:
THE DEFENDANT-APPELLANT’S CONVICTION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶31} Appellant argues his convictions for aggravated burglary and robbery
were against the manifest weight of the evidence.
{¶32} In this case, the jury convicted appellant of aggravated burglary in
violation of R.C. 2911.11(A)(1), which provides:
(A) No person, by force, stealth, or deception, shall trespass in
an occupied structure or in a separately secured or separately occupied
portion of an occupied structure, when another person other than an
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accomplice of the offender is present, with purpose to commit in the
structure or in the separately secured or separately occupied portion of
the structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict
physical harm on another[.]
{¶33} The jury also convicted appellant of robbery in violation of R.C.
2911.02(A)(2), which provides that no person in attempting or committing a theft
offense or in fleeing immediately after the attempt or offense, shall inflict, attempt to
inflict, or threaten to inflict physical harm on another.
{¶34} We must consider all of the evidence and determine if the jury clearly
lost its way in finding appellant guilty of these offenses.
{¶35} Cross Creek Township Police Officer T.J. Weyand testified that he
responded to a call of a home invasion at the Coker home on April 14, 2014. (May 5,
Tr. 85). When he arrived, Officer Weyand found Mrs. Coker in the middle of the
street pointing to a jewelry box with its contents scattered about. (May 5, Tr. 85-86).
Mrs. Coker advised Officer Weyand that one of the people involved carried the
jewelry box out of the house. (May 5, Tr. 86). Officer Weyand secured the jewelry
box in the back of his cruiser. (May 5, Tr. 86). Mrs. Coker advised Officer Weyand
that three males entered her home, two black and one mixed, while one white male
was the driver of their car. (May 5, Tr. 87).
{¶36} Bill Koniski lives across the street and one door down from the Cokers.
Koniski testified that on the day in question he was waxing his car when he heard a
car drive up the road and turn around. (May 5, Tr. 100). He noticed the car stop at
the Cokers’ driveway. (May 5, Tr. 100). Koniski saw three men get out of the car
and run toward the Cokers’ garage man door. (May 5, Tr. 100). After the three men
ran toward the Cokers’ door, the car drove up the road and turned into a church
parking lot from where the driver could see the Cokers’ house. (May 5, Tr. 101-102).
The car then drove back toward the Cokers’ house as the three others came running
down the Cokers’ driveway toward the street. (May 5, Tr. 102-103). Koniski stated
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that one of the men tripped and dropped something he had been carrying. (May 5,
Tr. 103). After the men left, Koniski saw that the items the one man dropped were a
jewelry box and a laptop computer. (May 5, Tr. 104).
{¶37} Mr. Coker testified that he and his wife were in their kitchen when the
door that led in from their basement opened. (May 5, Tr. 109). Three men ran from
the door into the kitchen. (May 5, Tr. 110-113). One of the men pushed Mr. Coker
and knocked him over out of his chair. (May 5, Tr. 110). All three men had
handkerchief masks on their faces. (May 5, Tr. 112). Additionally, Mr. Coker stated
the men had latex medical gloves on. (May 5, Tr. 118-119). One of the men put his
hand in his pocket as if he might have a gun and ordered Mr. Coker not to move.
(May 5, Tr. 111-112). Mr. Coker stated the men then ran out of his house with two
jewelry boxes and a laptop computer. (May 5, Tr. 113-114). Mr. Coker was not able
to identify appellant. (May 5, Tr. 125).
{¶38} Mrs. Coker corroborated her husband’s testimony. Additionally, she
testified that when the men ran out of her house, she went to a window that looks out
at the street and she saw the three men get into a car. (May 5, Tr. 141). On their
way to the car, Mrs. Coker saw one of the men trip and drop her jewelry box and
laptop in the street. (May 5, Tr. 141). After she saw the men drive away, Mrs. Coker
went outside to pick up her belongings that were in the street. (May 5, Tr. 141).
Finally, Mrs. Coker testified that she never gave appellant permission to be in her
house or to touch her jewelry box. (May 5, Tr. 142-143).
{¶39} Edward Lulla, the BCI crime scene investigator, processed the crime
scene. Lulla testified that he was able to lift fingerprints from the jewelry box that
Officer Weyand recovered from the middle of the street. (May 5, Tr. 129). The
fingerprints were then sent to BCI for analysis. (May 5, Tr. 129).
{¶40} Ashley Owen analyzes latent fingerprints at BCI. Owen testified that
when she received the fingerprints in this case, she ran them through the Automated
Fingerprint Identification System (AFIS). (May 5, Tr. 156). AFIS provided her with a
list of 20 candidates for the fingerprints, one of which was a match. (May 5, Tr. 156).
Owen was able to determine that the left middle fingerprint she provided matched a
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fingerprint on file for appellant. (May 5, Tr. 156-157). She was also able to match a
palm print to appellant. (May 5, Tr. 157). Owen was able to testify to a reasonable
degree of forensic certainty that the prints from the jewelry box belonged to appellant.
(May 5, Tr. 159). On cross-examination, Owen stated it would be very rare that a
person wearing latex gloves would leave a fingerprint on a surface. (May 5, Tr. 160).
{¶41} Loreal Payton was the last witness. Payton described appellant as
being “like a brother” to her. (May 5, Tr. 165). Payton testified that appellant was at
her house on April 14, 2014, when she overheard him saying on the phone that he
was going to “hit a lick” in Wintersville. (May 5, Tr. 165-166). This meant he was
going to rob someone. (May 5, Tr. 166). Appellant asked Payton for a pair of gloves.
(May 5, Tr. 167). Payton stated that she gave appellant hospital gloves. (May 5, Tr.
167). She stated she knew he was going to use them to rob someone. (May 5, Tr.
167). Payton testified that later that day she heard on the news that the Cokers’
house was robbed. (May 5, Tr. 168). She stated that the Cokers are her cousins.
(May 5, Tr. 168). When she heard the news, Payton called Mr. Coker and asked if
the robbers had gloves and trash bags. (May 5, Tr. 169). When appellant came
back to Payton’s house, she told him to leave and not come back. (May 5, Tr. 169).
{¶42} Appellant argues that no witnesses identified him as one of the
individuals that burglarized the Coker house. While no eyewitness identified
appellant, his fingerprint and palm print were both found on Mrs. Coker’s jewelry box,
which was dropped by one of the robbers when fleeing from the scene. Thus,
appellant’s finger and palm prints identified him.
{¶43} Appellant next claims he had previously done work at the Coker house,
so his fingerprints could have been left on the jewelry box during a prior visit. But
appellant never presented any evidence that he actually worked at the Coker house.
On cross-examination of the Cokers, appellant’s counsel tried to elicit testimony that
appellant could have worked at their house previously. (May 5, Tr. 122-123, 143-
145). But Mr. Coker testified that he did not remember appellant ever being at his
house. (May 5, Tr. 122). And Mrs. Coker stated that to her knowledge appellant had
never been to her house. (May 5, Tr. 145). Thus, there was never any evidence that
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appellant had actually ever been to the Coker house on another occasion.
{¶44} Moreover, it was not appellant’s fingerprints alone that incriminated him.
In addition to his fingerprints on the jewelry box, the jury heard Payton’s testimony.
According to Payton, on the day of the robbery she overheard appellant saying to
someone on the phone that he was going to “hit a lick,” which meant he was going to
rob someone. And appellant admitted to Payton he was going to commit a robbery
and asked her for gloves for that purpose. Payton gave him latex hospital gloves.
The men who robbed the Cokers were wearing latex hospital gloves. After learning
that her cousins were the victims of the robbery, Payton made appellant leave her
house.
{¶45} Taking all of the evidence into consideration, we cannot conclude that
the jury clearly lost its way and created a manifest miscarriage of justice. The weight
of the evidence supports appellant’s convictions for aggravated burglary and robbery.
Accordingly, appellant’s third assignment of error is without merit and is overruled.
{¶46} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.