[Cite as State v. Pierce, 2014-Ohio-5258.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27204
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LAMAR A. PIERCE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 11 3005(C)
DECISION AND JOURNAL ENTRY
Dated: November 26, 2014
HENSAL, Judge.
{¶1} Lamar Pierce appeals his conviction for burglary in the Summit County Court of
Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} On October 25, 2011, a homeowner called the Bath police department to report
that there were men trying to get into her house. Although the men left when they saw the
homeowner through a window, she provided the police with a description of their vehicle.
Officers located the vehicle shortly thereafter and a chase ensued, which ended when the vehicle
crashed into a ditch. The Grand Jury indicted Mr. Pierce, the driver of the vehicle, for two
counts of burglary, two counts of failure to comply with the order or signal of a police officer,
and one count of driving under suspension. At trial, Mr. Pierce’s accomplices, Michael Davis
and Antonio Jones, testified against him. The jury found him guilty of one burglary count, the
failure to comply counts, and the driving under suspension count, and the trial court sentenced
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him to a total of eight years imprisonment. Mr. Pierce has appealed, arguing that his conviction
for burglary is against the manifest weight of the evidence.
II.
ASSIGNMENT OF ERROR
THE JURY CLEARLY LOST ITS WAY WHEN IT FOUND THE APPELLANT
GUILTY OF BURGLARY WHERE THE EVIDENCE WAS NOT CREDIBLE OR
RELIABLE AND CONSISTED OF SNITCH TESTIMONY.
{¶3} Mr. Pierce argues that his burglary conviction is against the manifest weight of
the evidence. If a defendant asserts that a conviction is against the manifest weight of the
evidence:
[A]n appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of 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 ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the
greater amount of credible evidence produced in a trial to support one side over the other side.
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its
power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.
State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785, ¶ 32, citing Otten at 340.
{¶4} The jury found Mr. Pierce guilty of burglary under Revised Code Section
2911.12(A)(1). That section provides:
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, 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[.]
R.C. 2911.12(A)(1).
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{¶5} According to Mr. Pierce, his burglary conviction is against the manifest weight of
the evidence because there was no physical evidence to establish that he burglarized the house
and the testimony of Mr. Davis and Mr. Jones cannot be believed. He notes that Mr. Davis and
Mr. Jones both admitted that they received favorable treatment from the State in exchange for
their testimony. He also notes that, because the homeowner did not testify, her observations
were admitted only second-hand through law enforcement officers. He argues that the evidence
supports, at best, a conviction for trespassing or attempted burglary.
{¶6} Mr. Davis and Mr. Jones testified that they drove with Mr. Pierce from Cleveland
to Bath in order to commit a burglary. Mr. Davis testified that they wanted to target a house
where nobody was home, so when they got to the victim’s house, Mr. Pierce knocked on the
door. When no one answered, he and Mr. Pierce went around to the back of the house, looking
for a way in. At the back of the house was an enclosed patio. According to Mr. Davis, Mr.
Pierce entered the patio while he stayed on the staircase. When they spotted the homeowner
looking at them through a back window, however, they ran back to the vehicle.
{¶7} Mr. Jones testified that, when they arrived at the house, Mr. Pierce and Mr. Davis
got out of the vehicle while he remained inside. He corroborated that Mr. Pierce knocked on the
front door then headed to the backyard. Mr. Jones testified that, 30 seconds after Mr. Pierce and
Mr. Davis disappeared behind the house, they came rushing back to the vehicle. Both Mr. Davis
and Mr. Jones admitted that the State reduced its charges against them after they agreed to testify
against Mr. Pierce.
{¶8} Officer Scott Borton testified that, when he arrived at the scene, the homeowner
was still stressed and a little scared. She told him that, although she heard the men at her front
door, she did not answer it because she was in her pajamas. Shortly thereafter, she heard
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someone pulling on the rear doors of the house, so she went to look out a back window and saw
a man coming from her enclosed porch. When the men noticed her, they ran back to their
vehicle.
{¶9} In determining whether a conviction is against the manifest weight of the
evidence, this Court has recognized that issues of credibility are primarily reserved for the trier
of fact. State v. Carr, 9th Dist. Summit No. 26661, 2014-Ohio-806, ¶ 42. “This Court will not
overturn the trial court’s verdict on a manifest weight of the evidence challenge only because the
trier of fact chose to believe certain witness[es]’ testimony over the testimony of others.” State
v. Hill, 9th Dist. Summit No. 26519, 2013–Ohio–4022, ¶ 15. The fact that an accomplice of the
defendant has received leniency in exchange for his testimony does not, necessarily, make his
testimony incredible. See State v. Abel, 9th Dist. Lorain No. 08CA009506, 2009-Ohio-2516, ¶
34; State v. Figueroa, 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 11.
{¶10} Mr. Pierce argues that Mr. Davis’s and Mr. Jones’s testimony cannot be believed.
The trial court warned the jury that their testimony “should be viewed with grave suspicion and
weighed with great caution,” See R.C. 2923.03(D). We presume that it followed the court’s
instruction. See State v. Garner, 74 Ohio St.3d 49, 59 (1995). It, nevertheless, found Mr. Pierce
guilty of the offenses. Upon careful review of the record, we conclude that this is not the
exceptional case where the jury lost its way when it found Mr. Pierce guilty of burglary. Mr.
Pierce’s assignment of error is overruled.
III.
{¶11} Mr. Pierce’s burglary conviction is not against the manifest weight of the
evidence. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
PATRICIA J. SMITH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.