[Cite as State v. Sizemore, 2013-Ohio-3749.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case No. 12CA3510
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
ANTHONY S. SIZEMORE, :
: RELEASED: 08/22/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Christopher T. Travis, Stevensville, Michigan, for appellant.
Mark Kuhn, Scioto County Prosecuting Attorney, and Joseph L. Hale, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Anthony Sizemore appeals his convictions for theft from an elderly person
and burglary, arguing that the jury’s verdict was against the manifest weight of the
evidence. Sizemore contends it was undisputed that he was previously invited into the
victim’s home, thus providing a legitimate reason for why his blood was found at the
scene. However, the victim testified that the blood was not there before the burglary
and credibility is generally an issue for the trier of fact, so we reject this argument.
{¶2} Sizemore also contends that law enforcement never recovered any of the
stolen items and there were no eye witnesses to the crime. However, the victim
testified about the items taken from her home, including a drill and type of liverwurst.
The victim’s neighbor also testified that after the burglary Sizemore showed him a drill
case and asked if he knew anyone who would want to purchase a drill. Moreover,
Sizemore was living with another of the victim’s neighbors at the time of the offense and
Scioto App. No. 12CA3510 2
after the burglary the victim identified liverwurst found in the neighbor’s refrigerator as
the same kind taken from her home. Because the state presented credible evidence
upon which the jury could have reasonably concluded that Sizemore committed the
essential elements of the offenses, his convictions are not against the manifest weight
of the evidence. Accordingly, we affirm the trial court’s judgment.
I. FACTS
{¶3} Sizemore was convicted of the burglary and theft of Gladys Love’s home
while she was out of town. At the time of the offense, Sizemore and his girlfriend were
living with his friend, Arnett Hogston. Hogston was a long time neighbor to 78-year-old
Love and regularly helped her with home improvement projects. On the day in
question, Sizemore accompanied Hogston to paint several rooms in Love’s home. A
few hours after they arrived, Love received a phone call and requested that they leave
because she had to visit her grandson. Love returned the next morning to discover that
her house had been burglarized and several items of her property were missing.
{¶4} The state charged Sizemore with one count of burglary, in violation of R.C.
2911.12(A)(2) and (C), and one count of theft of an elderly person, in violation of R.C.
2913.01(A)(1) and (B)(3). He pleaded not guilty and the matter proceeded to a jury trial.
{¶5} At trial, the state alleged that Sizemore forced entry into Love’s home
through a bedroom window and took several items, including food, money and tools.
The state also introduced evidence that two blood stains found on a bed sheet under
the broken window matched Sizemore’s DNA. The jury found Sizemore guilty of both
counts and after merging his convictions, the trial court imposed sentence. This appeal
followed.
Scioto App. No. 12CA3510 3
II. ASSIGNMENT OF ERROR
{¶6} Sizemore raises one assignment of error for our review:
1. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT-
DEFENDANT BY ENTERING A GUILTY FINDING UPON A VERDICT
THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. LAW AND ANALYSIS
{¶7} To determine whether a conviction is against the manifest weight of the
evidence, we review the entire record, weigh the evidence and all reasonable
inferences, and consider the credibility of witnesses to 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.”
State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.
{¶8} The reviewing court must bear in mind however, that credibility generally
is an issue for the trier of fact to resolve. See State v. Burke, 4th Dist. Washington No.
12CA39, 2013-Ohio-2888, ¶ 8, citing State v. Frazier, 73 Ohio St.3d 323, 339, 652
N.E.2d 1000 (1995). “‘If the prosecution presented substantial evidence upon which the
trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential
elements of the offense had been established, the judgment of conviction is not against
the manifest weight of the evidence.’” State v. Tyler, 196 Ohio App.3d 443, 2011-Ohio-
3937, 964 N.E.2d 12, ¶ 43 (4th Dist.), quoting State v. Puckett, 191 Ohio App.3d 747,
2010-Ohio-6597, 947 N.E.2d 730, ¶ 32 (4th Dist.). Thus, we will exercise our
discretionary power to grant a new trial only in the exceptional case where the trier of
fact clearly lost its way and the evidence weighs heavily against the conviction.
Drummond at ¶ 193.
Scioto App. No. 12CA3510 4
{¶9} The jury convicted Sizemore of burglary in violation of R.C. 2911.12(A)(2)
which states:
No person, by force, stealth, or deception, shall * * * [t]respass 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[.]
{¶10} The jury also convicted him of theft from an elderly person or disabled
adult in violation of R.C. 2913.02, which states in part:
(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services
* * * (1) Without the consent of the owner or person authorized to give
consent [.]
***
(B)(3) * * * [I]f the victim of the offense is an elderly person or disabled
adult, a violation of this section is theft from an elderly person or disabled
adult, and division (B)(3) of this section applies. Except as otherwise
provided in this division, theft from an elderly person or disabled adult is a
felony of the fifth degree.
{¶11} At trial, Hogston testified that at the time of the offense Sizemore was
living with him and on the day in question he and Sizemore went to Love’s house to
paint several interior rooms. Hogston had painted Love’s bedroom several months
before and they were not working in her bedroom on that day. After painting for a few
hours, Love received a telephone call and told them she had to leave to visit her
grandson. The men then cleaned up and left Love’s home. Hogston further testified
that after the burglary he found Braunschweiger, a type of liverwurst, in his refrigerator.
He had not purchased it and showed it to Love. She identified it as the same type taken
from her home.
Scioto App. No. 12CA3510 5
{¶12} Love testified that she is 78 years of age and lives in the same
neighborhood as Hogston. She had hired him to work in her home several times before
and on the day in question he arrived with Sizemore to paint her bathroom and second
bedroom. This was the first time Love had met Sizemore. While the men were
painting, Love sat in the hallway so she could watch them work. She explained that she
watched Sizemore because she did not know him and did not trust anyone she did not
know in her home. She never saw Sizemore enter her bedroom. After they began
painting, she received a call and told them they had to leave because she needed to
visit her grandson in Waverly, Ohio. Love returned the next morning and discovered
someone had burglarized her home.
{¶13} Love also testified that after examining her home, she discovered several
items missing, including her VCR, a “weed eater,” a drill, a clock, $25 in change, her
purse and “a lot of food.” She estimated that these items were worth in excess of $500.
Love stated after the burglary she told Hogston that the offender even took her
Braunschweiger from the refrigerator and explained to him what it was. About a week
later Hogston brought over a small piece of Braunschweiger left in the package and told
her he found it in his refrigerator. Love identified it as the same kind taken during the
burglary. The window in Love’s bedroom had also been broken and Love found blood
stains on her bed sheets. She testified that the stains were not there before she left to
visit her grandson.
{¶14} Deputy Paula Gibson testified that she received a call to respond to Love’s
home due to a reported burglary. When Deputy Gibson arrived she determined that the
point of entry into the home was Love’s bedroom window. There was broken glass on
Scioto App. No. 12CA3510 6
the floor and pry marks on the window frame. She also found bloodstains on the sheet
and mattress pad of Love’s bed, which were sent to the Ohio Bureau of Criminal
Investigation for testing. Deputy Gibson explained that because the bed was positioned
under the window, the offender would have come in contact with the bed when entering
the home.
{¶15} Gary Howard, a neighbor of Love and Hogston, testified that his niece,
Deanna Dawson, is Sizemore’s girlfriend and he has known Sizemore for about three
years. On the night in question, Sizemore was throwing rocks at his window and asking
to use the telephone, but he did not let him in the house. The following morning Howard
woke up and found Sizemore on the front porch. Sizemore asked Howard if he knew
“anybody that would buy a drill” and showed him a blue drill case, but never opened it.
Howard stated that Sizemore also had a bandaged cut on his leg that he claimed “came
from mowing grass.” Howard also testified that he has taken money from Love in the
past and is currently incarcerated for an unrelated burglary conviction, but was not
indicted in this case.
{¶16} Emily Draper, a DNA forensic scientist at the Ohio Bureau of Criminal
Investigation, testified that she analyzed a sample of blood found on Love’s bed sheet
and compared it to Sizemore’s DNA. Her professional opinion was that the DNA on the
sheet matched Sizemore’s DNA.
{¶17} Deanna Dawson, Sizemore’s girlfriend, testified for the defense that her
grandmother and Love were good friends and regularly got Braunschweiger from a local
food pantry. She explained that the Braunschweiger found in Hogston’s refrigerator
could have come from her grandmother because she often sent food over to Hogston.
Scioto App. No. 12CA3510 7
Dawson further explained that Sizemore cut his leg doing electrical work prior to the
burglary and he had the cut while he was painting Love’s house with Hogston. She also
denied that Sizemore ever had a cordless drill or offered to sell one to Howard.
{¶18} Sizemore denied that he was involved in the burglary of Love’s home and
testified that while he was helping Hogston paint Love’s house, he went into her
bedroom to inject heroin. He theorized that his blood could have gotten on her bed
sheet at that time. He also stated that he cut his leg doing electrical work and the
dressing needed to be changed two to three times a day due to continuous bleeding.
He further testified that while he and Dawson were staying with Hogston, Dawson’s
grandmother would give them food and they would keep it at Hogston’s house. He also
denied ever having a cordless drill in a blue case.
{¶19} Sizemore argues that “the jury clearly lost its way” because it was
undisputed that he was legitimately in Love’s home helping Hogston paint before the
crime and he explained at trial how his blood could have been found at the scene.
However, as we have stated:
It is the trier of fact’s role to determine what evidence is the most credible
and convincing. The fact finder is charged with the duty of choosing
between two competing versions of events, both of which are plausible
and have some factual support. Our role is simply to insure the decision is
based upon reason and fact. We do not second guess a decision that has
some basis in these two factors, even if we might see matters differently.
State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31
Having heard the testimony and observed the demeanor of the witnesses, the jury may
choose to believe all, part, or none of their testimony. State v. Nguyen, 4th Dist. Athens
No.12CA14, 2013-Ohio-3170, ¶ 80. Here, the jury chose to believe Love’s testimony
regarding the blood on her bed sheet and we will not substitute our judgment for that of
Scioto App. No. 12CA3510 8
the trier of fact under circumstances where the evidence reasonably supports the
conclusion that Sizemore left his blood at the scene while committing the offense.
{¶20} Sizemore also argues that law enforcement never recovered any of the
stolen items, specifically the Braunschweiger and the drill, nor was there any “actual
testimony of an actual witness to the burglary.” However, Love testified about the items
taken from her home, including the drill and Braunschweigher, and Howard stated that
he saw Sizemore with a drill case after the burglary. And although Sizemore claims that
Howard provided “the self serving testimony of an incarcerator burglar,” as we have
already explained credibility is generally an issue for the trier of fact. Finally, Sizemore
was living with Hogston at the time of the offense and Love testified that the
Braunschweiger found in Hogston’s refrigerator was the same kind taken from her
home.
IV. CONCLUSION
{¶21} Based on the credible evidence presented by the state the jury could
have reasonably concluded that Sizemore committed the essential elements of theft
from an elderly person and burglary. Accordingly, we cannot say that this is an
exceptional case where the trier of fact clearly lost its way and the evidence weighs
heavily against the conviction. We overrule Sizemore’s assignment of error and affirm
the trial court’s judgment.
JUDGMENT AFFIRMED.
Scioto App. No. 12CA3510 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing Scioto
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.