[Cite as State v. Welch, 2014-Ohio-3349.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25921
Plaintiff-Appellee :
: Trial Court Case No. 2012-CR-3396/2
v. :
:
STEVEN WELCH : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 1st day of August, 2014.
...........
MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
DANIEL A. PERRY, Atty. Reg. #0087548123 Boggs Lane, Cincinnati, Ohio 45246
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Steven Welch appeals his convictions for obstructing justice and tampering with
evidence for helping his son bury a safe that his son had stolen. We affirm.
I. FACTS
{¶ 2} At Welch’s jury trial, the state presented the testimony of two Dayton police
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officers who were involved in the case. Officer Jeffrey Vance testified that, in the early morning
hours one day in September 2012, he was dispatched to a Dayton home on a burglary call. The
homeowner told Officer Vance that she had returned home around 4 a.m. and discovered that a
safe containing, among other valuables, about $18,000 in cash was missing. Officer Vance was
told that Christopher Welch was a probable suspect. Christopher lived nearby with his father,
Steven Welch. So Vance went to Welch’s house, where he spoke with Steven. Officer Vance told
him that his son was suspected of burglarizing a nearby house and stealing a safe and that Vance
was looking for both his son and the safe. Welch told the officer that “he was already aware of
that.” (Tr. 72). Welch said that someone had been by his house earlier and told him and that he
had been out looking for his son without success. Officer Vance gave Welch Detective Jason
Neubauer’s business card and told Welch that his son should contact the detective as soon as
possible.
{¶ 3} Detective Neubauer testified that he interviewed Welch’s son at the police
department where the son admitted that the safe was buried in the backyard of his father’s house.
The detective then took him to the house. While Welch was signing a form that gave his consent
to search his property, Detective Neubauer asked him about his involvement in the matter. It was
then that Welch admitted that “he had helped his son help bury the safe * * * in order to protect
his son * * *.” (Tr. 84). Welch’s son dug up the safe, but they had buried the safe’s door in
another spot. He was having difficulty finding it until Welch told him where to dig. Later,
Detective Neubauer interviewed Welch at the police department. Welch again admitted that he
had helped bury the safe because he wanted to protect his son. Welch told the detective that “after
Christopher had informed him that the safe was in the backyard, he instructed Christopher to wait
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until it got dark, at which point after nightfall Christopher got a shovel and began digging. He
said once Christopher got tired of digging, he actually helped him and started digging himself.
And that was merely when asked why he did that, it was in case anybody was snooping around
they wouldn’t be able to see it.” (Tr. 93). Welch indicated to Detective Neubauer that he was
aware that there had been a burglary in which a safe was stolen.
{¶ 4} After presenting the testimony of the two police officers, the state rested its case.
Welch moved for acquittal under Crim.R. 29, and the trial court denied the motion. Welch then
presented the testimony of his son, Christopher. Christopher testified that he buried the safe
alone, that his father did not help him, and that his father did not even know about the buried
safe. When the defense rested, the state presented rebuttal testimony from Detective Neubauer.
The detective testified that, during an interview, Christopher told police that his father had helped
him bury the safe.
{¶ 5} The jury found Welch guilty. He was convicted, receiving a sentence of
community control.
{¶ 6} Welch appealed.
II. ANALYSIS
{¶ 7} Welch assigns two errors to the trial court. The first alleges that the trial court
erred by not granting Welch’s Crim.R. 29 motion for acquittal. And the second alleges that
Welch’s convictions are against the manifest weight of the evidence.
{¶ 8} Crim.R. 29 provides that a trial court must enter a judgment of acquittal “if the
evidence is insufficient to sustain a conviction of such offense or offenses.” Crim.R. 29(A).
“When reviewing the sufficiency of evidence, the relevant inquiry is whether any rational finder
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of fact, viewing the evidence in a light most favorable to the state, could have found the essential
elements of the crime proven beyond a reasonable doubt. A guilty verdict will not be disturbed on
appeal unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”
(Citation omitted.) State v. Knight, 2d Dist. Greene No. 2003CA14, 2004-Ohio-1941, ¶ 15,
quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).
{¶ 9} Although the state does not raise the issue, we note that Welch did not renew his
Crim.R. 29 motion for acquittal at the close of all the evidence in his jury trial. “An accused
waives his or her right to a directed verdict of acquittal at the close of the state’s case by
thereafter introducing evidence and then failing to renew the motion at the close of all the
evidence.” (Citation omitted.) State v. Butler, 10th Dist. Franklin No. 98AP-55, 1998 WL
733762, *4 (Oct. 22, 1998), citing Dayton v. Rogers, 60 Ohio St.2d 162, 163, 398 N.E.2d 781
(1979). Here, Welch moved for acquittal at the close of the state’s case-in-chief, the trial court
denied the motion, and Welch then presented the testimony of his witness. After resting, Welch
did not renew the motion. The state then presented the testimony of a rebuttal witness. After the
rebuttal testimony, Welch again did not renew the motion. Welch has therefore waived any
challenge to the trial court’s overruling of his motion for acquittal. Compare State v. Wright, 9th
Dist. Lorain No. CIV.A. 04CA008490, 2004-Ohio-7162, ¶ 4 (concluding the same on the same
facts, mutatis mutandis). Consequently, we will reverse only if the trial court’s action “rises to the
level of ‘plain error.’” (Citation omitted.) State v. Engle, 2d Dist. Montgomery No. 15293, 1997
WL 205994, *2 (Apr. 25, 1997) (finding that the defendant waived any error in overruling his
Crim.R. 29 motion for acquittal at the close of the state’s case because he failed to renew the
motion at the close of all the evidence in his jury trial), citing Dayton. “In order to find plain
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error, this court must be convinced that, but for the error the outcome of the proceeding would
clearly have been different.” (Citation omitted.) Id. The key issue with respect to the first
assignment of error, then, is whether the trial court clearly would have granted the motion for
acquittal had Welch renewed it at the close of all the evidence. See id.
{¶ 10} Our review is different with respect to Welch’s manifest-weight challenge. In that
regard, we review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact
“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, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). “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,’ we must afford substantial deference
to its determinations of credibility.” State v. Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867
N.E.2d 474, ¶ 78 (2d Dist.), rev’d on other grounds sub nom, In re Ohio Criminal Sentencing
Cases, 116 Ohio St. 3d 31, 2007-Ohio-5551, 876 N.E.2d 528, quoting State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). A judgment should be reversed as
being against the manifest weight of the evidence “only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175.
{¶ 11} Welch argues that the evidence does not show that he obstructed
justice–specifically, does not show that he helped bury the safe “with purpose to hinder the
discovery, apprehension, prosecution, conviction, or punishment,” R.C. 2921.32(A), of his
son–or that he tampered with evidence–specifically, does not show that he helped bury the safe
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“knowing that an official proceeding or investigation [wa]s in progress, or [wa]s about to be or
likely to be instituted,” R.C. 2921.12(A). Welch contends that the state failed to prove that he
knew about a criminal investigation and acted with a purpose to hinder the prosecution of his
son’s crime. Welch points out that there is no evidence corroborating his confession and that no
recording or signed statement of his confession was presented. He also points out that no physical
evidence was presented that shows he helped bury the safe.
{¶ 12} Welch cites no authority for the proposition that a confession must be
corroborated or memorialized.1 Nor does he cite authority for the necessity of physical evidence
in this case. The jury’s verdict reflects that it found the testimony of the state’s witnesses
credible–more credible than that of the defense’s witness. “A jury does not lose its way simply
because it chooses to believe the state’s witness over the defendant.” (Citation omitted.) State v.
Davis, 193 Ohio App.3d 130, 2011-Ohio-1280, 951 N.E.2d 138, ¶ 45 (2d Dist.). Viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could have found
proven beyond a reasonable doubt that Welch’s purpose in helping to bury the safe was to hinder
the discovery, apprehension, prosecution, conviction, or punishment of his son and that, when he
helped bury the safe, Welch knew that it was stolen and that there would be an investigation.
Therefore, the trial court would not have granted Welch’s motion for acquittal had he renewed it
at the close of all the evidence. Welch’s admissions to police both are sufficient to support his
convictions and render his convictions consistent with the manifest weight of the evidence.
1
Appellant’s argument about the lack of corroboration of the confession challenges the believability of whether the confession
occurred, that is whether the occurrence of the confession is against the manifest weight of the evidence. What appellant does not argue, and
what we do not address, is the corpus delicti rule, which requires “some evidence” to establish an offense before a confession is admissible.
State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).
7
Compare Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867 N.E.2d 474, at ¶ 78 (concluding
that the defendant’s admissions to police were sufficient to support his conviction for tampering
with evidence and the conviction was not against the weight of the evidence).
{¶ 13} The two assignments of error are overruled.
{¶ 14} The trial court’s judgment is affirmed.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
April F. Campbell
Daniel A. Perry
Hon. Gregory F. Singer