State v. Spires

[Cite as State v. Spires , 2011-Ohio-3661.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA10
:
vs. : Released: July 14, 2011
:
JACK R. SPIRES, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Michael L. Barr, Little & Sheets, LLP, Pomeroy, Ohio, for Appellant.

C. Jeffrey Adkins, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

{¶1} Appellant, Jack Spires, appeals from his conviction in the Gallia

County Court of Common Pleas after a jury found him guilty of four counts

of burglary in violation of R.C. 2911.12, felonies of the second degree, and

one count of breaking and entering in violation of R.C. 2911.13, a fifth

degree felony. On appeal, Appellant contends that 1) the trial court

committed plain error in permitting hearsay testimony to be entered into the

record; 2) the trial court committed plain error in permitting unauthenticated

pictures and objects to be entered as evidence; 3) the trial court committed
Gallia App. No. 10CA10 2

plain error in not issuing a jury instruction that no adverse inferences were to

be drawn from defendant’s exercise of his right to not testify; 4) he received

ineffective assistance of counsel; 5) his conviction was against the manifest

weight of the evidence; 6) the State failed to produce sufficient evidence to

sustain convictions of burglary and breaking and entering; and 7) the

cumulative error in the trial deprived him of a fair trial.

{¶2} We cannot conclude that the trial court erred or abused its

discretion in admitting certain testimony, pictures and objects and, as such,

Appellant’s first and second assignments of error are overruled.

Additionally, as we find no error, plain or otherwise, related to the

instructions provided to the jury, Appellant’s third assignment of error is

overruled. Likewise, based upon our determination that Appellant did not

receive ineffective assistance of counsel, Appellant’s fourth assignment of

error is overruled.

{¶3} Further, in light of our determination that Appellant’s

convictions were supported by sufficient evidence and were not against the

manifest weight of the evidence, Appellant’s fifth and sixth assignments of

error are overruled. Finally, as Appellant has failed to demonstrate any

error, let alone multiple errors, his seventh assignment is overruled. Having
Gallia App. No. 10CA10 3

overruled all of Appellant’s assignments of error, we affirm the judgment of

the trial court.

FACTS

{¶4} A review of the record reveals that on or about October 15, 2009,

Appellant was stopped in Gallia County, while driving a white vehicle

owned by Jessica Duncan, who was a passenger in the vehicle. Appellant

was stopped after a high speed chase spanning twelve to fourteen miles.

Once stopped, Ms. Duncan, the owner of the vehicle, provided consent to

search the vehicle. There in, law enforcement recovered various items,

including computers, tools, a shotgun, a purse, and jewelry, later determined

to be stolen property, which was linked to multiple reported burglaries that

had occurred throughout the day.

{¶5} Appellant and Ms. Duncan were arrested. Although Appellant

refused to provide a statement, Ms. Duncan provided two taped statements

to law enforcement. In her second statement, she essentially stated that she

and Appellant had been riding around all afternoon and that while she

remained in the vehicle, Appellant burglarized several residences and broke

into an outbuilding. She attributed the pair’s activities to their drug

addictions and stated that they needed money to buy drugs.
Gallia App. No. 10CA10 4

{¶6} A criminal complaint was filed against Appellant on October 19,

2009, and Appellant was subsequently indicted on four counts of burglary

and one count of breaking and entering. Appellant pled not guilty to the

charges and the matter proceeded to a jury trial on May 18, 2010. At trial,

the State’s primary witness was Jessica Duncan. The record reveals that Ms.

Duncan was offered a plea agreement in exchange for testifying against

Appellant at trial. The State also introduced multiple other witnesses,

including the crime victims, neighbors who were witnesses to the events, as

well as law enforcement involved in Appellant’s stop and investigation of

the crimes.

{¶7} The jury found Appellant guilty of all four counts of burglary

and the breaking and entering count. The trial court sentenced Appellant to

eight year prison terms on each burglary count and a twelve month term on

the breaking and entering count, to be served consecutively for an aggregate

prison term of thirty three years. Appellant was also ordered to pay

restitution in the amount of $1,078.50. It is from this conviction and

sentence that Appellant now brings his timely appeal, assigning the

following errors for our review.
Gallia App. No. 10CA10 5

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT COMMITTED PLAIN ERROR IN
PERMITTING HEARSAY TESTIMONY TO BE ENTERED ONTO
THE RECORD.

II. THE TRIAL COURRT [SIC] COMMITTED PLAIN ERROR IN
PERMITTING UNAUTHENTICATED PICTURES AND OBJECTS
TO BE ENTERED AS EVIDENCE.

III. THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT
ISSUING A JURY INSTRUCTION THAT NO ADVERSE
INFERENCES WERE TO BE DRAWN FROM DEFENDANT’S
EXERCISE OF HIS RIGHT TO NOT TESTIFY.

IV. DEFENDANT JACK SPIRES RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR THE FOLLOWING REASONS:

A. HIS ATTORNEY REFUSED TO ALLOW HIM TO TESTIFY
TO ALIBI OF ON HIS OWN BEHALF, THEREBY
LEAVING THE STATE’S EVIDENCE UNCONTESTED;

B. HIS ATTORNEY FAILED TO MOVE THE COURT FOR AN
ACQUITAL [SIC] PURSUANT TO OHIO CRIMINAL RULE
29.

V. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.

VI. THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE
TO SUSTAIN CONVICTIONS OF BURGLARY AND BREAKING
AND ENTERING.

VII. THE CUMULATIVE ERROR IN THE TRIAL DEPRIVED THE
DEFENDANT OF A FAIR TRIAL.”
Gallia App. No. 10CA10 6

ASSIGNMENT OF ERROR I

{¶8} In his first assignment of error, Appellant contends that the trial

court committed plain error in permitting hearsay testimony to be entered

into the record. Under this assignment of error, Appellant challenges four

specific instances of testimony, which he contends constituted hearsay. Two

of the instances were objected to below and two were not. Thus, our review

of these statements will involve different standards of review.

{¶9} “The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court[.]” State v. Haines, 112 Ohio St.3d 393,

2006-Ohio-6711, 860 N.E.2d 91, at ¶ 50, citing State v. Robb, 88 Ohio St.3d

59, 68, 2000-Ohio-275, 723 N.E.2d 1019. An abuse of discretion connotes

more than an error of judgment; it implies that the trial court's attitude was

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

{¶10} Evid.R. 801(C) defines “hearsay” as “a statement, other than

one made by the declarant while testifying at trial or hearing, offered in

evidence to prove the truth of the matter asserted.” A witness is barred from

testifying as to the statements made by another only when the statement is

offered to prove the truth of the matter asserted in the statement, and only

where the statement falls outside any exceptions to the rule against hearsay
Gallia App. No. 10CA10 7

as set forth in Evid.R. 803 and 804. See State v. Davis (1991), 62 Ohio St.3d

326, 344, 581 N.E.2d 1362. Evid.R. 802 contains the general prohibition

against the admission of hearsay and provides: “Hearsay is not admissible

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.”

{¶11} We will first address the statements Appellant challenges that

he objected to below. Appellant objects to a statement provided by Monica

Helms in which Ms. Helms stated that she received a call at work from her

mother informing her that her house alarm was going off. Appellant claims

that this statement constituted inadmissible hearsay. The State contends that

the statement was not offered for the truth of the matter asserted, but rather

was offered for the effect on the listener, to show why she went home and

discovered items had been stolen, and is therefore not considered to be

hearsay under Evid.R. 801(C). We agree. See, State v. Wente (Cuyahoga

App. No. 85501, 2005-Ohio-4825 at ¶ 8-10 (statement by burglary victim

that she received a call from her mother informing her that her house had

been broken into was not offered for the truth of the matter asserted and

therefore was not inadmissible hearsay).
Gallia App. No. 10CA10 8

{¶12} Appellant also objected at trial to testimony provided by Lisa

Harmon in which Harmon described the various items of property stolen

from each house, as identified by Ms. Duncan during the course of the

investigation. The State contends that this testimony simply duplicated the

direct testimony of Ms. Duncan, which had already been entered into the

record and had been heard by the jury. As such, the State contends that if

the statements were admitted in error, such error was harmless. Based upon

the following, we agree with the State.

{¶13} Not only were the details of Harmon’s testimony already in

evidence by virtue of Ms. Duncan’s testimony, Harmon’s testimony served

to illustrate the steps taken during the course of her investigation. “[I]t is

well-settled that statements offered by police officers to explain their

conduct while investigating a crime are not hearsay because they are not

offered for their truth, but rather, are offered as an explanation of the process

of investigation.” State v. Warren Cuyahoga App. No. 83823, 2004-Ohio-

5599 at ¶ 46; citing State v. Price (1992), 80 Ohio App.3d 108, 110, 608

N.E.2d 1088; State v. Braxton (1995), 102 Ohio App.3d 28, 49, 656 N.E.2d

970; State v. Blevins (1987), 36 Ohio App.3d 147, 149, 521 N.E.2d 1105.

Thus, we find no error related to the admission of these statements.
Gallia App. No. 10CA10 9

{¶14} Appellant challenges two additional statements to which he did

not object below. As Appellant failed to object to the admission of the

testimony below, our review is limited to a plain error analysis. For a

reviewing court to find plain error: (1) there must be an error, i.e., “a

deviation from a legal rule;” (2) the error must be plain, i.e., “an ‘obvious'

defect in the trial proceedings;” and (3) the error must have affected

“substantial rights,” i.e., it must have affected the outcome of the

proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759

N.E.2d 1240. Furthermore, the Supreme Court of Ohio has admonished

courts that notice of plain error under Crim.R. 52(B) is to be taken “with the

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” Id., quoting State v. Long (1978), 53 Ohio

St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.

{¶15} Appellant first objects to a statement provided by Sergeant Eric

Werry wherein the sergeant testified that one of the victims, Mr. Saunders,

told him he accidentally left his back door unlocked. Appellant objects to

another statement of Sergeant Werry wherein the sergeant testified regarding

information he had received from a Jackson County deputy during his

investigation. Specifically, Sergeant Werry testified that he contacted

Jackson County when he discovered that the tags to the suspect white
Gallia App. No. 10CA10 10

vehicle were linked with Ms. Duncan. He testified that Deputy Bartles with

Jackson County informed him “he was working similar cases with that same

vehicle and them two people.” The State contends that these statements

were not offered for the truth of the matter asserted and instead were offered

to establish the investigative steps taken by the sergeant in connection with

the burglary investigations. We agree with the State.

{¶16} As set forth above, “it is well-settled that statements offered by

police officers to explain their conduct while investigating a crime are not

hearsay because they are not offered for their truth, but rather, are offered as

an explanation of the process of investigation.” State v. Warren, supra, at ¶

46. Further, considering that our standard of review under this portion of the

assignment of error is plain error, we note that Mr. Saunders himself also

testified regarding the door being unlocked. Thus, this evidence would have

properly been before the jury whether Sergeant Werry’s testimony had been

admitted or not. As such, the inclusion of this evidence did not affect the

outcome of the proceedings. Accordingly, Appellant’s first assignment of

error is overruled.

ASSIGNMENT OF ERROR II

{¶17} In his second assignment of error, Appellant contends that the

trial court committed plain error in permitting unauthenticated pictures and
Gallia App. No. 10CA10 11

objects to be entered as evidence. The record reflects that Appellant’s

counsel objected to the admission of Exhibits 13 and 14, and that the trial

court admitted those exhibits over the objection. Exhibit 13 was a

photograph of a Harley Davidson watch and ring recovered from the vehicle

Appellant was driving when he was arrested. Exhibit 14 consisted of the

actual watch and ring. As Appellant’s counsel objected to the admission of

these items of evidence below, we conclude that our standard of review is

one of abuse of discretion, rather than plain error.

{¶18} The admission of photographic evidence is a matter within the

sound discretion of the trial court. State v. Awkal (1996), 76 Ohio St.3d 324,

333, 1996-Ohio-395, 667 N.E.2d 960; see, also, State v. Wray, Gallia App.

No. 00CA08, 2001-Ohio-2356. Thus, we will not reverse a decision to

admit photographic evidence unless we find that decision to be an abuse of

discretion. An abuse of discretion involves more than an error of judgment;

it connotes an attitude on the part of the court that is unreasonable,

unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp.

Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24. When

applying the abuse of discretion standard, a reviewing court is not free to

merely substitute its judgment for that of the trial court. In re Jane Doe 1

(1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181.
Gallia App. No. 10CA10 12

{¶19} Evid.R. 901 governs authentication and identification of

evidence and provides in (A) that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its

proponent claims.” The rule further provides as follows:

“(B) Illustrations

By way of illustration only, and not by way of limitation, the following are
examples of authentication or identification conforming with the
requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it
is claimed to be.”

{¶20} Thus, the requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.

Evid.R. 901(A), see, also, State v. Wray, supra; citing State v. Aliff (Apr. 12,

2000), Lawrence App. No. 99CA8, 2000 WL 378370. In Wray, we noted

that “[a] photograph is authenticated or identified by evidence establishing

that it is a fair and accurate representation of that which it is purported to

depict. Citing, State v. Hill (1967), 12 Ohio St.2d 88, 90, 232 N.E.2d 394.

Furthermore, as noted in Wray, “no chain of evidence is required when

admitting photographs because they normally are not susceptible to

tampering, alteration or substitution when properly authenticated.” Wray,
Gallia App. No. 10CA10 13

supra; citing State v. Clark (May 17, 1988), Pike App. No. 408, 1988 WL

50506.

{¶21} In the case sub judice, Vicki Mulholand testified that the

photograph labeled as Exhibit 13 offered into evidence fairly and accurately

depicted the Harley Davidson watch and ring she had seen her son wear on

more than one occasion.1 The State then followed with Exhibit 14, which

was the actual watch and ring recovered from the vehicle. Ms. Mulholand

again testified that it looked like her son Justin’s watch and ring, saying that

it “looks just exactly like the ones he owned.” Appellant contended below

that because the watch and ring were not engraved or personalized, and

could have been bought by anyone at a Harley shop that they were

“unauthenticateable.” Appellant further claims that Ms. Mulholland

admitted “Exhibits 13 and 14, might not have come from her house.” The

State counters by directing our attention to Ms. Mulholands actual testimony

on cross examination, which was as follows:

“Q. * * * Uh, I apologize for picking on the ring and stuff, but that is
something, the ring and the watch, those are things that you can buy at
the Harley shop aren’t they?

A. Yes.

1
To be specific, Ms. Mulholand testified, when asked what Exhibit 13 appeared to be a picture of, that “it
looks like my son’s watch and ring.”
Gallia App. No. 10CA10 14

Q. So what’s here in the envelope could have come from a Harley shop,
not from your house?

A. I suppose.”

{¶22} Given the evidence presented, the trial court did not abuse its

discretion by admitting the photographs, or the actual items, over Appellant's

objection concerning the proper foundation. In our view, Ms. Mulholand

was a witness with knowledge who testified that the items of evidence in

question were what they claimed to be, in accordance with the requirements

of Evid.R. 901. Further, her acknowledgment that these particular items

could possibly also be purchased at a Harley shop do not diminish her

opinion that these particular items looked exactly like the ones she had seen

her son wear on prior occasions and which were missing from her house.

Thus, Appellant’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶23} In his third assignment of error, Appellant contends that the

trial court committed plain error in not issuing a jury instruction that no

adverse inferences were to be drawn from his exercise of his right not to

testify. The State responds by pointing out that the trial court gave a special

instruction regarding Appellant’s failure to testify and, as such, did not err.

{¶24} “A trial judge has the constitutional obligation, upon proper

request, to minimize the danger that the jury will give evidentiary weight to
Gallia App. No. 10CA10 15

a defendant's failure to testify. Upon proper request, defendant has a right,

under the privilege against compulsory self-incrimination guaranteed by the

Fifth Amendment, to have the judge instruct the jury that the defendant's

failure to testify cannot be considered for any purpose.” State v. Fanning

(1982), 1 Ohio St.3d 19, 437 N.E.2d 583, paragraph one of the syllabus,

following Carter v. Kentucky (1981), 450 U.S. 288, 101 S.Ct. 1112; See,

also State v. Mullins, Montgomery App No. 21277, 2007-Ohio-1051 at ¶ 17;

State v. Hill (Aug. 5, 1994), Washington App. No. 93CA35, 1994 WL

419985. (Emphasis added).

{¶25} As indicated above, Carter requires such an instruction only

“upon proper request.” State v. Hill; citing State v. Fanning at 21. As in

Fanning, here, a review of the record indicates that Appellant did not file a

written special jury instruction request at the close of the evidence pursuant

to Crim.R. 30, which requires that the request must be in writing and made

at the close of the evidence or at such earlier time as the court reasonably

directs in order to be proper. As such, Appellant was not entitled to a special

instruction under Carter, concerning the jury's consideration of his failure to

testify.

{¶26} Appellant contends that the trial court committed plain error in

failing to provide a special instruction to the jury despite his failure to
Gallia App. No. 10CA10 16

request a special instruction. As set forth above, for a reviewing court to

find plain error: (1) there must be an error, i.e., “a deviation from a legal

rule”; (2) the error must be plain, i.e., “an ‘obvious' defect in the trial

proceedings”; and (3) the error must have affected “substantial rights,” i.e., it

must have affected the outcome of the proceedings. State v. Barnes, supra,

at 27. Furthermore, the Supreme Court of Ohio has admonished courts that

notice of plain error under Crim.R. 52(B) is to be taken “with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id., quoting State v. Long, supra, at paragraph three

of the syllabus.

{¶27} Despite the fact that Appellant was not entitled to a special

instruction, the trial court instructed the jury as follows:

“Now it is not necessary that the defendant take the witness stand in his own

defense. He has a Constitutional right not to testify. The fact that the

defendant did not testify must not be considered for any purpose.”

Thus, we find no error, plain or otherwise, in the instructions provided by

the trial court. Accordingly, Appellant’s third assignment of error is

overruled.
Gallia App. No. 10CA10 17

ASSIGNMENT OF ERROR IV

{¶28} In his fourth assignment of error, Appellant contends that he

received ineffective assistance of counsel. Specifically, Appellant argues

that his counsel was ineffective in refusing to allow him to testify to an alibi

or testify on his own behalf, and was ineffective for failing to move for an

acquittal pursuant to Crim.R. 29. The State disagrees, arguing that

Appellant has failed to demonstrate how his counsel’s performance was

deficient or prejudiced him.

{¶29} In order to prevail on a claim of ineffective assistance of

counsel, an appellant must show that (1) his counsel's performance was

deficient, and (2) the deficient performance prejudiced his defense so as to

deprive him of a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-

Ohio-5084, 854 N.E.2d 1038, at ¶ 205, citing Strickland v. Washington

(1984), 466 U.S. 668, 687, 104 S.Ct. 2052. To establish deficient

performance, an appellant must show that trial counsel's performance fell

below an objective level of reasonable representation. State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 95. To establish

prejudice, an appellant must show a reasonable probability exists that, but

for the alleged errors, the result of the proceeding would have been different.

Id. “ ‘In Ohio, a properly licensed attorney is presumed competent and the
Gallia App. No. 10CA10 18

appellant bears the burden to establish counsel's ineffectiveness.’ ” State v.

Countryman, Washington App. No. 08CA12, 2008-Ohio-6700, at ¶ 20,

quoting State v. Wright, Washington App. No. 00CA39, 2001-Ohio-2473;

State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476, cert.

den. Hamblin v. Ohio (1988) 488 U.S. 975, 109 S.Ct. 515.

{¶30} Appellant first asserts that his counsel was ineffective for

refusing to allow him to testify to an alibi, or on his own behalf, thereby

leaving the State’s evidence uncontested. We first note that “[g]enerally,

decisions to call witnesses is within the purview of defense counsel's trial

strategy and is not considered deficient performance absent a showing of

prejudice.” State v. Jackson, Lawrence App. No. 97CA2, 1997 WL 749480;

citing, State v. Hunt (1984), 20 Ohio App.3d 310, 312, 486 N.E.2d 108.

Further, as noted by the State, Appellant has offered no evidence to

demonstrate that his trial counsel actually blocked him from testifying, either

on his own behalf or with regard to an alibi.2 To the extent that this

occurred, it must have occurred off the record. “We may not consider

matters outside the record on a direct appeal. Instead, an appellant may raise

matters outside the record by filing a postconviction relief petition in the

trial court.” State v. Hoke, Lawrence App. No. 10CA32, 2011-Ohio-1221 at

2
In addition, there was no notice of alibi filed in the record, in accordance with Crim.R. 12.1, to even
indicate that Appellant had an alibi.
Gallia App. No. 10CA10 19

¶ 10; See, e.g., State v. Nichols (1984), 11 Ohio St.3d 40, 42, 463 N.E.2d

375. Accordingly, we reject the first argument advanced under Appellant’s

fourth assignment of error.

{¶31} Next, Appellant asserts that his counsel was ineffective for

failing to move for an acquittal pursuant to Crim.R. 29. As we discuss later

in the resolution of Appellant’s fifth assignment of error, the State presented

sufficient evidence to sustain Appellant’s convictions for burglary and

breaking and entering. Therefore, a Crim.R. 29 motion for acquittal would

have been fruitless in this case. As a result, trial counsel's failure to move for

acquittal under Crim.R. 29 did not constitute ineffective assistance of

counsel. State v. Norman, Ross App. Nos. 08CA3059, 08CA3066, 2009-

Ohio-5458 at ¶ 72; See, also, State v. Murphy, Washington App. No.

03CA12, 2003-Ohio-4939, at ¶ 21 (citations omitted).

{¶32} Accordingly, Appellant’s fourth assignment of error is

overruled.

ASSIGNMENT OF ERROR V

{¶33} In his fifth assignment of error, Appellant contends that his

conviction was against the manifest weight of the evidence. “The legal

concepts of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different.” State v. Thompkins (1997), 78
Gallia App. No. 10CA10 20

Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the

adequacy of the evidence, while weight tests “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other[.]” State v. Sudderth, Lawrence App. No 07CA38,

2008-Ohio-5115, at ¶ 27, quoting Thompkins at 387.

{¶34} “Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence.” State v. Smith, Pickaway App. No.

06CA7, 2007-Ohio-502 at ¶ 41. When determining whether a criminal

conviction is against the manifest weight of the evidence, we “will not

reverse a conviction where there is substantial evidence upon which the

[trier of fact] could reasonably conclude that all the elements of an offense

have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38

Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. See, also,

Smith at ¶ 41. We “must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, 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 granted.” Smith at ¶ 41,
Gallia App. No. 10CA10 21

citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d

814; State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

However, “[o]n the trial of a case, * * * the weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of the facts.”

State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 at paragraph one

of the syllabus.

{¶35} Appellant was convicted of one count of burglary under R.C.

2911.12(A)(1) and three counts of burglary under R.C. 2911.12(A)(2). R.C.

2911.12(A)(1) and (2) provide as follows:

“(A) No person, by force, stealth, or deception, shall do any of the
following:

(1) Trespass in an occupied structure or in a separately secured or separately
occupied portion of an occupied structure, when another person other than
an 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;

(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[.]” (Emphasis added).

Appellant was also convicted of one count of breaking and entering, in

violation of R.C. 2911.13(A), which provides that “[n]o person by force,

stealth, or deception, shall trespass in an unoccupied structure, with purpose
Gallia App. No. 10CA10 22

to commit therein any theft offense, as defined in section 2913.01 of the

Revised Code, or any felony.”

{¶36} Here, the State presented several witnesses in support of their

theory that Appellant burglarized four houses. First and foremost, Jessica

Duncan testified on behalf of the State. Ms. Duncan was Appellant’s

girlfriend and accomplice in the crimes. The State agreed to allow her to

plead to a charge of complicity in exchange for her testimony against

Appellant at trial. Ms. Duncan testified that she was in the car with

Appellant when he drove her car around Gallia County on the day of the

crime spree. She testified that the two of them had drug problems and they

were trying to come up with money to buy drugs. She testified that she

remained in the car while Appellant entered several residences and one

outbuilding and took various different items throughout the day. Ms.

Duncan further testified that after being stopped, she provided law

enforcement consent to search her vehicle. She also gave a statement to law

enforcement.3

{¶37} The vast majority of Appellant’s argument under this

assignment of error is premised on an assertion that Ms. Duncan’s testimony

3
The record indicates that Ms. Duncan provided two taped interviews on the day she was arrested. Her
testimony indicates that she provided a second statement because the first statement she provided was not
truthful, explaining that she was scared that she was in trouble. Both of these taped interviews were played
for the jury.
Gallia App. No. 10CA10 23

was not credible and should have been “zero credibility” by the jury.

However, the weight to be given evidence and the credibility to be afforded

testimony are issues to be determined by the trier of fact. State v. Frazier, 73

Ohio St.3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing State v.

Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The fact

finder “is best able to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland

(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Thus, we will only interfere

if the fact finder clearly lost its way and created a manifest miscarriage of

justice. Here, the jury chose to believe Ms. Duncan’s testimony, as well as

the testimony of the State’s other witnesses, which will be more fully

discussed herein, and we will not substitute our judgment for that of the jury

under these circumstances.

{¶38} Appellant further argues under this assignment of error that

aside from Ms. Duncan’s testimony, which he deems unreliable, the State’s

evidence was “indirect, circumstantial, and of little probative value.”

Appellant argues that absent Ms. Duncan’s testimony, the State could not

place him inside any of the occupied structures. To the contrary, a review of

the trial transcript reveals that the State presented testimony from Haskell
Gallia App. No. 10CA10 24

Saunders, Monica Helms, Teresa Reynolds, Kendra Bence, Phyllis Hash,

Vicki Mulholand, John Manley, Oak Hill Patrolman Chris Gruber, Sergeant

Eric Werry, and Detective Lisa Harmon. Haskell Saunders, the victim of

burglary count 1, testified that he returned to his home on October 15, 2009,

to find lights on, doors unlocked, and a shotgun and his wife’s purse were

missing. Monica Helms, the victim of burglary count 2, testified that after

receiving a phone call from her mother telling her that her house alarm was

going off, she went home to find her playstation 2 was missing. Teresa

Reynolds, Helms’ aunt who lives near her also testified. She testified that

when she heard the alarm she looked out her window and observed a man

and woman and white car outside of Helms’ house.

{¶39} Kendra Bence, the victim of burglary count 3, testified that she

left her house briefly on the afternoon of October 15, 2009, and returned to

find her back door open. Upon entering she discovered that two laptop

computers and a pocketwatch were missing. Phyllis Hash, Bence’s

neighbor, also testified. She testified that during the afternoon in question,

she saw Appellant go around back of Bence’s house. Vicki Mulholand, the

victim of burglary count 4, testified that her sons were home sleeping on the

afternoon in question. She testified that when she left for work that morning

her computer was at the house and when her son’s awoke that afternoon, it
Gallia App. No. 10CA10 25

was missing, along with a Harley Davidson watch and ring. John Manley,

the victim of the breaking and entering count, testified that when he arrived

home on the afternoon in question he noticed that the door to his outbuilding

was damaged. Upon entering the building he found that his air compressor

and two boxes of tools were missing.

{¶40} Oak Hill Patrolman Chris Gruber also testified at trial. He

testified that he was contacted by dispatch and was provided with a license

plate number to a white vehicle, the owner of which was Jessica Duncan,

that had been seen in the area of a burglary on October 15, 2009. After

passing the vehicle in Oak Hill that evening, he testified that he attempted to

initiate a traffic stop, which turned into a high speed chase spanning twelve

to fourteen miles. Patrolman Gruber testified that when he was eventually

able to stop Appellant, upon approaching the vehicle he observed a shotgun

in the backseat.

{¶41} Sergeant Eric Werry also testified at trial. He testified that after

the stop, he obtained Jessica Duncan’s permission to search the vehicle.

Further, Detective Lisa Harmon testified at trial. She testified that she was

called in after the stop to help inventory the contents of the vehicle. The

record further reflects that the stolen items mentioned above, belonging to
Gallia App. No. 10CA10 26

the various victims, were located in Duncan’s vehicle, which Appellant was

driving.

{¶42} In light of this evidence, we cannot conclude that the jury lost

its way and created a manifest miscarriage of justice by finding Appellant

guilty of four counts of burglary and one count of breaking and entering.

Further, we conclude that there was substantial evidence upon which the

jury could have reasonably concluded that all the essential elements of the

crimes charged had been proven beyond a reasonable doubt. As such, we

overrule Appellant's fifth assignment of error.

ASSIGNMENT OF ERROR VI

{¶43} In his sixth assignment of error, Appellant contends that the

State failed to produce sufficient evidence to sustain convictions of burglary

and breaking and entering. When reviewing the sufficiency of the evidence,

an appellate court examines the evidence admitted at trial to determine

whether that evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio

St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The test is one of

legal adequacy, not rational persuasiveness. The relevant question is, after

viewing the evidence in a light most favorable to the prosecution, whether

any rational trier of fact could have found the essential elements of the crime
Gallia App. No. 10CA10 27

proven beyond a reasonable doubt. Id., citing Jackson v. Virginia (1979),

443 U.S. 307, 99 S.Ct. 2781.

{¶44} This test raises a question of law and does not allow us to

weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717. Rather, the test “gives full play to the responsibility of the trier

of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Jackson at

319. The issues of the weight given to the evidence and the credibility of

witnesses are for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,

79-80, 434 N.E.2d 1356; State v. DeHass at paragraph one of the syllabus.

{¶45} We reject Appellant’s sufficiency argument for many of the

same reasons that we rejected his argument that his conviction was against

the manifest weight of the evidence. Here, as detailed above, the State

presented sufficient direct and circumstantial evidence that if believed,

would convince the average mind of the defendant's guilt beyond a

reasonable doubt as to all four burglary counts as well as the breaking and

entering count. As such, the trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. Accordingly,

Appellant’s sixth assignment of error is overruled.
Gallia App. No. 10CA10 28

ASSIGNMENT OF ERROR VII

{¶46} In his seventh assignment of error, Appellant contends that the

cumulative error in the trial deprived him of a fair trial. Under the

cumulative-error doctrine, “a conviction will be reversed where the

cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of

trial court error does not individually constitute cause for reversal.” State v.

Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623, 1995-Ohio-168; State v.

DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, at paragraph two of

the syllabus.

{¶47} If “a reviewing court finds no prior instances of error, then the

[cumulative-error] doctrine has no application.” State v. McKnight, Vinton

App. No. 07CA665, 2008-Ohio-2435, at ¶ 108; State v. Hairston, Scioto

App. No. 06CA3089, 2007-Ohio-3707, at ¶ 41. We have already found no

error related to the sufficiency of the evidence, the weight of the evidence,

the effectiveness of Appellant’s trial counsel, the admission of evidence or

the provision of jury instructions. As such, Appellant has not demonstrated

that any errors occurred, let alone multiple errors. Therefore, Appellant’s

seventh assignment of error is without merit.
Gallia App. No. 10CA10 29

{¶48} Having overruled all of Appellant’s assignments of error, we

affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Gallia App. No. 10CA10 30

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Gallia County Common Pleas Court 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.
Exceptions.
Kline, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error
II, III, IV, V, VI, & VII and Concurs in Judgment Only as to Assignment of
Error I.
For the Court,

BY: _________________________
Matthew W. McFarland, 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.