State v. Gibson

[Cite as State v. Gibson, 2016-Ohio-8552.]

STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT

STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 15 MA 0074
VS. )
) OPINION
RYAN GIBSON )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 14 CR 1123A

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee Attorney Paul Gains
Mahoning County Prosecutor
Attorney Ralph Rivera
Assistant Prosecutor
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426

For Defendant-Appellant Attorney Lynn Maro
7081 West Boulevard, Suite 4
Youngstown, Ohio 44512-4362

JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: December 29, 2016
[Cite as State v. Gibson, 2016-Ohio-8552.]
DeGENARO, J.

{¶1} Defendant-Appellant Ryan Gibson appeals the judgment of the trial
court convicting him of one count of burglary and sentencing him accordingly. On
appeal, Gibson contends the trial court erred by admitting recordings of his jailhouse
phone calls. He also asserts his convictions are against the manifest weight of the
evidence and that his sentence was erroneous. For the following reasons, Gibson's
assignments of error are meritless and the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} Gibson was indicted by a grand jury of aggravated robbery, R.C.
2911.01(A)(1) and (C), and of aggravated burglary, R.C. 2911.11(A)(2) and (B), both
first-degree felonies and each with a firearm specification, R.C. 2941.145(A). He and
several accomplices were accused of entering the apartment of Michael Deiley by
deception and taking his property at gunpoint. Gibson pled not guilty, and upon his
motion, Gibson's trial was severed from his co-defendants, one of whom had agreed
to testify against him.
{¶3} The matter proceeded to a jury trial, where the following evidence was
adduced. The victim, Michael Deiley, testified that Nafeesa Fareed, Daisy Robinson,
and Gibson, Robinson's boyfriend, were coming to Deiley's apartment in Austintown
to buy $10 worth of marijuana. Deiley was acquainted with all three individuals, and
had known them for some time. Deiley admitted that he regularly bought and sold
marijuana, but denied selling other illegal narcotics such as heroin, cocaine, or LSD.
{¶4} Later that night, there was a knock on Deiley's front door. Deiley saw
the two women, Fareed and Robinson, through the peephole, but did not see Gibson.
When Deiley opened the door, Gibson rushed in and put a gun to his head.
According to Deiley, two other males came in and ransacked his apartment while
Gibson stood "over" and "behind" him, holding him down, first on the couch and then
on the floor, with the gun to his head. He also testified that someone held a knife to
his throat for at least part of the time.
{¶5} According to Deiley, Gibson and the other two men stole his Xbox
gaming console, "maybe a half ounce" of marijuana and two cell phones, one of
 -2-

which had recently been taken out of service. He described the gun Gibson used as
being "silver" in color. Later, he reported to the Austintown police that they had also
stolen a video game for the Xbox.
{¶6} Deiley did not call the police to report the incident until 8:30 p.m. the
following day, about 21 hours after it occurred. Austintown Township Officer Daniel
Burial testified he was dispatched to Deiley's apartment and took the report. Deiley
told Burich that Gibson, Robinson, Fareed, and two to three unknown males had
robbed him the previous night. Deiley also stated that Gibson had a handgun.
{¶7} Deiley explained that he did not contact the police earlier, because he
was afraid that Gibson would retaliate against him. During his initial report, Deiley
failed to tell Burich that marijuana was among the stolen items. He did eventually
report the marijuana stolen during a later telephone conversation initiated by police.
{¶8} Deiley said that in the past, he had freely let Gibson into his apartment
on at least a dozen occasions to buy marijuana. When asked if Gibson's presence
outside his door would have caused him not to open it, Deiley said no. When asked
why Gibson would have to hide behind the door if he wanted to rob him, Deiley said
he did not know.
{¶9} Shortly after the incident, Deiley obtained another cell phone and used
that phone to text a message to one of his phones that had been stolen. He received
three responses from the stolen phone: (1) "Where u stay u scary white boy stop
textin my new phone before I lay yo ass down[;]" (2) "Bye bitch u called da cops nd u
forgot nigga we all kno where u stay u a scary white boy so[;] and(3) "Nd not to
mention u was cryin."
{¶10} Deiley said those responses indicated that the sender or senders knew
where he lived and would come back if he called the police. Deiley testified that the
last person he had seen with his stolen phone was Gibson.
{¶11} Deiley also sent a Facebook message to Robinson after the incident
stating the following: "I just wanna let you know bitch I got bullets for all yall broke ass
niggaz bodys will be down…yall wana rob me when I always looked out for yall well
 -3-

now yall gonna be dead cuz ik where yall new place is and ik where nafeesa stay at
so yall fucked and the cops have yall info and names and the info to the xbox and
phones too so yall really fucked either way yall dead or behind bars so hows that fat
ass cunt."
{¶12} Gibson's co-defendant, Nafeesa Fareed, agreed to testify against him
as part of a plea deal, in which she agreed to plead to a lesser felony charge with a
recommendation of probation. Fareed testified that earlier on the day of the incident,
a group that included herself, Robinson, Gibson, Gibson's two half-brothers, Savon
and Javon Wesley, and another man she knew only as "Dude" had gathered at the
apartment shared by Gibson and Robinson and planned the robbery. Fareed and
Robinson texted Deiley later that evening to see if he was at home. Then she and
Robinson took Robinson's car to Deiley's apartment while Gibson, the Wesley
brothers and "Dude" took Gibson's car. They met up behind the apartment building
where Deiley lived before going in.
{¶13} Fareed further testified that Gibson and the other men stood behind a
wall where Deiley "probably couldn't see them" while the two women knocked on the
door. When Deiley opened it, the women entered followed by Gibson, who pointed a
gun at Deiley. Gibson then "held Mike [Deiley] down," first on the couch and then on
the floor at gunpoint while the other three men entered and searched the apartment
for "weed and money." The three men found and took "weed, money, an Xbox and a
phone."
{¶14} Fareed also testified that she had never seen the gun until Gibson
pointed it at Deiley. She described the gun she saw Gibson point at Deiley as a
"black small gun." She did not know if it was a real gun or not. She also asserted
that she never saw a knife at all during the incident.
{¶15} Fareed said a substantial amount of marijuana and an indeterminate
amount of money were taken along with the Xbox and a phone. She also testified
that after the robbery, she and Robinson drove to Savon and Javon Wesley's
apartment, where they all "split the money" and the marijuana. When asked if she
 -4-

ever saw the gun again after leaving Deiley's apartment, she said that she did not.
{¶16} Fareed stated she had known Deiley for "about a year" at the time of
the robbery. She further testified that on prior visits to Deiley's apartment to buy
marijuana, she and the others who had been to his apartment had seen "a lot of
money and weed."
{¶17} Fareed admitted that she agreed to testify against Gibson while she
was being held in jail on the same charges. She further admitted that she had
desperately wanted to get out of jail, and that she told her boyfriend in a phone
conversation that if she didn't get out, she would kill herself. She conceded that she
wanted a plea deal and would take any offer that involved no jail time for her.
{¶18} She also told her boyfriend that the allegations were "some bullshit" and
that she would do whatever she had to do to get out of jail. She also admitted telling
her boyfriend "emphatically" while still in jail that there was no gun involved in the
incident. However, she later testified that she had told him there was no gun
"because I knew my conversation was being recorded."
{¶19} Gibson took the stand in his own defense and testified that on the day
in question, his brother Savon Wesley called and asked him for a ride home from
work. As they were driving to Wesley's apartment, Wesley asked Gibson if he
wanted to "smoke." Gibson said he did. When they arrived at the apartment Wesley
shared with his brother Javon, the Wesley brothers asked Gibson to "mesh with
them," meaning to contribute an equal amount of marijuana to what they were
offering for smoking. Gibson then went home to get money from Robinson, his
girlfriend, to buy marijuana and said he would call them from her phone.
{¶20} Later that evening, Gibson took his mother to work in Austintown.
After he dropped her off, Robinson and Fareed pulled up behind him in Robinson's
car. Both cars then pulled into the parking lot of a nearby McDonald's where a
conversation and an argument ensued. Gibson asked Robinson if she still wanted to
smoke marijuana and told Fareed she could join them. The three of them then drove
to Deiley's apartment to buy marijuana. Robinson had already texted Deiley to let
 -5-

him know they wanted a dime bag.
{¶21} Gibson testified that before he and the two women arrived at Deiley's
apartment, he had told them that if the bag of marijuana came up short, as it had in
the past, that he planned to take it without paying.
{¶22} According to Gibson, he and the two women all stood right in front of
the door while they knocked and Deiley let them all in. He testified that Deiley then
said, "Let me go get it real quick" and went into a back room to get the bag of
marijuana. Deiley returned with a dime bag that Gibson felt was smaller than it
should have been. Gibson said he then took the bag and put it in his pocket and left
without paying.
{¶23} Gibson admitted he should not have done what he did, but denied
planning a robbery, or taking Deiley's jars of marijuana, his Xbox, or his cell phones.
Gibson further denied having a gun on him that evening, or even owning a gun.
{¶24} On cross-examination, Gibson admitted that he spoke to Robinson
while he was incarcerated and discussed what her testimony should be. He also
admitted he told his sister that it was a "drug deal gone wrong."
{¶25} No forensic evidence was presented from the crime scene. Detective
Yacovone testified that he never went to Deiley's apartment, but since most of those
involved knew each other, fingerprint and/or DNA evidence would have been of little
value. He also indicated that there were time constraints on his investigation
because he had a busy caseload. He said he attempted to subpoena phone records
for the stolen cell phones and to have the phones "pinged" to determine their
location, but was told by phone company representatives that the records sought
were unavailable and that "pinging" could not be done in this case because the
phones were pay-for-use phones. Detective Yacovone also testified that police did
not recover a gun, an Xbox or any Xbox games.
{¶26} Following foundation testimony by Mahoning County Sheriff's Deputy
Joseph Duarte, a CD containing 90 phone calls made by Gibson while in jail, totaling
more than 600 minutes, was admitted into evidence as a State's exhibit. The State
 -6-

sought to play 10 of these calls for the jury. Apparently, when counsel were arguing
admissibility, they were working from a summary that identified the 10 calls at issue;
however, that summary was not made a part of the record on appeal. Further, the
transcript is devoid of information directing us to which 10 of the 90 calls on the CD
were played for the jury because they were not transcribed by the court reporter while
they were played, nor were they isolated onto a separate CD and admitted into
evidence. A list of the 90 calls can be found in the record, but again, where to find
the pertinent 10 on that list is not noted.
{¶27} After considering all the evidence and deliberating for approximately 90
minutes, the jury acquitted Gibson on the indicted charges and firearm specifications,
but found him guilty of theft, R.C. 2913.02(A), a first-degree misdemeanor, a lesser-
included charge to count one, and guilty of burglary, R.C. 2911.12(A)(1), a second-
degree felony, a lesser-included charge to count two. Sentencing was continued so
that a pre-sentence investigation could be prepared.
{¶28} Following a hearing, the trial court found that the two offenses were
allied offenses of similar import and therefore merged for purposes of sentencing.
The prosecutor elected that the burglary charge survive the merger, and Gibson was
sentenced to three years in prison with 140 days of jail-time credit and a discretionary
three-year term of post-release control.
{¶29} This timely appeal followed.
Jailhouse Phone Calls
{¶30} In his first of three assignments of error, Gibson asserts:

The trial court erred in admitting hearsay evidence through recordings
of jail conversations.

{¶31} While he was incarcerated in the county jail Gibson made or received
90 phone calls totaling over 600 minutes, which were recorded. Although the CD
containing the entire 600 minutes was ultimately admitted into evidence, the State
proposed using only 10 of the 90 calls at trial. The trial court ruled that three calls
 -7-

entirely or in part could not be played for the jury. Regarding five other calls, either
defense counsel withdrew any objection or the prosecutor stated the call would not
be used. Finally, the trial court ruled that only two calls could be played in their
entirty for the jury, over Gibson's objection.
{¶32} Gibson raises several arguments under this assignment of error, which
will be discussed out of order for clarity of analysis. Gibson first contends the
recordings of his jailhouse calls were inadmissible because the State failed to
properly authenticate them. Rulings regarding authentication, like evidentiary rulings
more generally, are reviewed for an abuse of discretion. State v. Lallathin, 7th Dist.
No. 299, 2003-Ohio-3478, ¶ 34-36. An abuse of discretion means the trial court's
decision is unreasonable based upon the record; that the appellate court may have
reached a different result is not enough to warrant reversal. State v. Dixon, 7th Dist.
No. 10 MA 185, 2013–Ohio–2951, ¶ 21.
{¶33} Evid.R. 901(A) requires evidence to be properly authenticated prior to
its admission into evidence: "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). Such
evidence may be authenticated by a witness with knowledge that the matter is what it
claims to be. Evid.R. 901(B)(1).
{¶34} Specific to admitting a recorded phone call, the recording must be
"authentic, accurate, and trustworthy." State v. Tyler, 196 Ohio App.3d 443, 450, 964
N.E.2d 12 (4th Dist.2001), quoting State v. Were, 118 Ohio St.3d 448, 2008 Ohio
2762, 890 N.E.2d 263, ¶ 109, citing State v. Rogan, 94 Ohio App.3d 140, 148, 640
N.E.2d 535 (2d Dist.1994). "First, Evid.R. 901(B)(5) provides for authentication by
voice identification 'whether heard firsthand or through mechanical or electronic
transmission or recording.' Second, under Evid.R. 901(B)(9), a sound recording may
be authenticated through evidence that demonstrates a process or system used that
produces an 'accurate result.' " Tyler at 450.
{¶35} Here, Mahoning County Sheriff's Deputy Joseph Duarte, who is
 -8-

employed with the technical services unit at the department, testified that as part of
his job responsibilities he is familiar with the recording of phone calls that occur at the
jail. Duarte explained that the phone calls are "recorded digitally on hard disk on a
server that resides inside the secure IT room." He stated that phone calls can be
retrieved using the inmate's identification number, the actual target number, or by the
inmate's name. Once he has the information, Duarte would "log into a secure portal
which is provided by the company that has the phone system. We log in with our I.D.
It's tracked. Locate the numbers, verify, you know, that there are recordings,
download those recordings, and we basically check to see if there's audio."
{¶36} Duarte identified State's Exhibits 1 and 1A as a CD recording1 of some
of Gibson's phone calls, which included Gibson's name and corresponding pin
number. Duarte stated that the CD is a true and accurate representation of the calls
recorded from Gibson corresponding to his pin number, 0057847 during a specified
time period. Further, Gibson admitted during his testimony that it was his voice on the
jailhouse phone calls that were played for the jury. Accordingly, based on all of the
above, the calls were properly authenticated.
{¶37} Gibson next argues the trial court erred by permitting some calls to be
played for the jury—without specifying which of 10 calls disputed by the parties at
trial—because they violate his Confrontation Clause rights or alternatively that they
constitute inadmissible hearsay. Importantly, none of these 10 calls, save one, were
identified with specificity in the trial record, and the trial court sustained Gibson's
objection regarding that call. None were specified on appeal. Only after our review of
the trial transcript were we able to glean that the trial court sustained Gibson's
objections regarding three calls, ruling that all or part of those three calls could not be
played for the jury. Further, regarding five calls, either defense counsel withdrew any
objection or the prosecutor stated the call would not be used. Thus, it appears that
over defense counsel's objections, the trial court ruled that two calls could be played

1For purposes of clarity, the CD itself bears a sticker indicating State Exhibit 1A and the envelope the
CD is in bears a sticker indicating State Exhibit 1.
 -9-

in their entirety for the jury.
{¶38} A de novo standard of review is applied to a claim that a criminal
defendant's Confrontation Clause rights have been violated. State v. Barnette, 7th
Dist. No. 11 MA 196, 2014–Ohio–5673, ¶ 26. "If the admission of the statements did
not violate the Confrontation Clause, then the trial court's decision to admit the
statements under the rules of evidence is reviewed for an abuse of discretion." State
v. Toney, 7th Dist. No. 14 MA 0083, 2016-Ohio-3296, ¶ 45.
{¶39} The Confrontation Clause in the United States Constitution preserves
the right of a criminal defendant "to be confronted with the witnesses against him."
U.S. Constitution, Sixth Amendment. The United States Supreme Court has
explained that the Confrontation Clause bars "admission of testimonial statements of
a witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination." Crawford v.
Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The key
issue is what constitutes a testimonial statement: "It is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis
v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006).
{¶40} To determine whether a statement made to non-law-enforcement
officers is testimonial, Ohio courts apply the objective-witness test. See State v.
Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36. In Stahl, the
Supreme Court of Ohio held that a testimonial statement is "one made 'under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.' " Id., quoting Crawford, 541 U.S.
at 52.
{¶41} However, Gibson's brief makes only general arguments; he fails to
state which specific calls and which statements in those calls he finds objectionable,
explaining only that they were statements made by Robinson, a co-defendant, or by
third parties referring to Robinson's statements or Gibson recounting what he was
 - 10 -

told. More problematic is the total lack of specificity regarding where the
objectionable conversations can be found on the CD that was admitted into evidence;
it contains 90 phone calls totaling over 600 minutes. In a similar vein, a list of the 90
calls was filed by the State and is in the record, but again, that document fails to
specifically identify the 10 calls debated by counsel. It is likewise unclear which calls,
or portions thereof, the jury heard during trial.
{¶42} A review of the transcript reveals there was extensive discussion about
the content of the calls and arguments regarding their admissibility. The trial court
and counsel used written summaries of the calls to aid in their discussion, but those
written summaries were not made a part of the record. A careful examination of the
arguments made by counsel and the organization of the calls on the CD fails to
elucidate these issues. In the transcript, counsel does make statements such as
"starting with the first one." However, we have no way to determine which of the 90
calls is "the first one." The CD does group the calls by date, but within a specific
date, the calls are not listed in chronological order. Instead, each call has a specific
identification number; for example, AO0L1001 is the first call listed on the CD.
{¶43} This court has reviewed both the first call in time, and the first call listed
on the CD and neither relates to counsels' arguments regarding "the first one."
Instead, it appears they were referring to the first call listed on the summary, which is
not included in the record before us. Had counsel referred to the calls by their specific
identification numbers during arguments at trial, this court could have evaluated the
admissibility of each call. An even simpler manner to make a record would have
been to request that the court reporter transcribe each call as it was played for the
jury.
{¶44} This court made an attempt to find the proverbial needles in this
haystack; ultimately the trial record and Gibson's lack of specificity on appeal fails to
provide us with the ability to undertake a meaningful review. Thus, we cannot test the
propriety of what was played for the jury, and we will not hunt through over 600
minutes of calls in the hope of being able to divide, and then find, which calls were
 - 11 -

debated by the parties, and which Gibson challenges on appeal. "It is not the duty of
this court to search the record for evidence to support an appellant's argument as to
alleged error." Shumate v. City of Gahanna, 10th Dist. No. 02AP-881, 2003-Ohio-
1329, ¶ 6. See also App.R. 16(A)(7).
{¶45} Notably, the trial court did sustain three of Gibson's objections in
whole or in part—including the only call identified by the numbering system testified
to by Deputy Duarte—and the State agreed on the record to limit the playback of the
audio so as not to include any inadmissible statements. Regarding five other calls,
either defense counsel withdrew any objection or the prosecutor stated the calls
would not be used. Over Gibson's objections, the trial court ruled that two calls could
be played for the jury in their entirety. However, the trial record fails to identify which
specific calls were played and the court reporter did not transcribe the contents of the
calls as they were played for the jury. Without being able to discern which specific
calls or portions of calls Gibson objects to, we are unable to review the merits of
Gibson's Confrontation Clause arguments.
{¶46} Even if we were able to discern which statements were problematic and
deem them testimonial, "there is no dispute the Confrontation Clause 'does not bar
the use of testimonial statements for purposes other than establishing the truth of the
matter asserted.' " State v. Ricks, 136 Ohio St.3d 356, 995 N.E.2d 1181, ¶ 18, citing
Crawford, 541 U.S. at 59, fn. 9. Further, we recently noted, "many courts have
concluded that phone calls placed from prison between co-defendants are not
testimonial." State v. Toney, 7th Dist. No. 14 MA 0083, 2016-Ohio-3296, ¶ 50, citing
United States v. Thurman, 915 F.Supp.2d 836, 854–55 (W.D.Ky.2013); State v.
Dennison, 10th Dist. No. 12AP–718, 2013–Ohio–5535, ¶ 64; Saechaeo v. Oregon,
249 Fed.Appx 678, 679 (9th Cir.2007); Malone v. Kramer, E.D.Cal. No. 1:07–cv–
00743 AWI SMS (HC), 2010 WL 1404286 (Apr. 6, 2010) (involving jail phone
conversations between accused and his wife); Ibarra v. McDonald, N.D.Calif. No.
C10–01145 (Apr. 26, 2011). Given the state of the record and the manner in which
Gibson framed his challenge on appeal, we cannot make this assessment. Thus,
 - 12 -

Gibson's Confrontation Clause arguments are meritless.
{¶47} Turning to Gibson's final argument, in a typical case, we would then go
on to review whether the out-of-court statements are admissible under the rules of
evidence. See, e.g., Toney supra at ¶ 45, 55-70. Again, we are precluded from
analyzing this argument. Hearsay is an out-of-court statement, offered to prove the
truth of the matter asserted and is inadmissible unless subject to a relevant
exception. Evid.R. 802. Absent reference to specific statements, let alone the inability
to review the contents, we cannot tell which statements on the recordings were
objectionable and whether they were offered for their truth or for some other purpose.
Moreover, even if some of the statements were hearsay, they would fall under the
Evid.R. 801(D)(2)(e) exception, which provides a statement is not hearsay if the
statement is offered against a party and is "a statement by a co-conspirator of a party
during the course and in furtherance of the conspiracy upon independent proof of the
conspiracy."
{¶48} In sum, given the absence of a transcription of the disputed calls as
they were played for the jury, or any record of which 10 calls were contested by the
parties at trial, coupled with the lack of specificity in Gibson's appellate brief, we
cannot evaluate the merits of this assignment of error under any theory. Trial
counsel's recounting of a summary of the disputed calls woven in with legal argument
to the trial court is an insufficient record for meaningful appellate review.
Accordingly, Gibson's first assignment of error is meritless.
Manifest Weight
{¶49} In his second assignment of error, Gibson asserts:

Appellant's conviction and sentence violate the Fourteenth Amendment
to the United States Constitution and Article I, § 16 of the Ohio
Constitution as the conviction was against the manifest weight of the
evidence.

{¶50} "Weight of the evidence concerns the inclination of the greater amount
 - 13 -

of credible evidence, offered in a trial, to support one side of the issue rather than the
other." (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). A conviction will only be reversed as against the manifest weight of the
evidence in exceptional circumstances. Id. This is so because the triers of fact are in
a better position to determine credibility issues, since they personally viewed the
demeanor, voice inflections and gestures of the witnesses. State v. Hill, 75 Ohio
St.3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231,
227 N.E.2d 212 (1967).
{¶51} Thus, 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 at
387. However, "[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, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th
Dist.1999). Under these circumstances, the verdict is not against the manifest weight
and should be affirmed.
{¶52} Gibson was convicted of one count of burglary, a violation of R.C.
2911.12(A)(1), which provides:

No person, by force, stealth, or deception, shall do any of the
following: * * * 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[.]

{¶53} There were at least two conflicting versions of the events presented at
trial, and it was within the province of the fact-finder to resolve matters of credibility.
 - 14 -

See Hill, supra at 204. The jury believed Deiley's account that Gibson gained entry
into Deiley's apartment, either by deception, intimidation or force, while Deiley was
present, with the intention to steal, at least marijuana from him. This is supported by
the text messages, Fareed's testimony, and most notably, by Gibson's own
testimony.
{¶54} Notably the jury acquitted Gibson of the more serious charges,
including aggravated burglary and the firearm specifications, thus resolving
conflicting evidence about Gibson's use of a weapon in his favor. Again, this
determination rests upon witness credibility, which lies within the province of the jury.
{¶55} Accordingly, the jury clearly did not lose its way so as to create a
miscarriage of justice, and Gibson's second assignment of error is meritless.
Sentence
{¶56} In his third and final assignment of error, Gibson asserts:

The trial court's sentencing of Appellant to prison was contrary to law
and an abuse of discretion.

{¶57} The abuse-of-discretion standard is no longer applicable to felony-
sentencing challenges; appellate courts review a felony sentence to determine
whether the trial court's findings—or where findings are not required, the sentence
itself—are clearly and convincingly unsupported by the record, or whether the
sentence is otherwise contrary to law. R.C. 2953.08(G)(2); State v. Marcum, Slip
Opinion 2016-Ohio-1002, ¶ 1; ¶ 23. Marcum does not permit appellate courts to
independently weigh the sentencing factors in R.C. 2929.12 on review. State v.
Davis, 2016-Ohio-7319, --- N.E.3d ---, ¶ 5 (7th Dist.), citing State v. Ongert, 8th Dist.
No. 103208, 2016-Ohio-1543, ¶ 14. In other words, reversal or modification of a
sentence in the wake of Marcum, "applies to situations in which not one sentencing
factor supports a stated prison term or the trial court erroneously relied on factors that
did not exist." Davis at ¶ 5, quoting Ongert at ¶ 13.
{¶58} Here, the trial court was not required to make any findings under the
 - 15 -

statutes referenced by R.C. 2953.08(G). Therefore, Gibson's sentence may be
overturned only if that sentence was contrary to law or we clearly and convincingly
determine that the record does not support the sentence. Marcum at ¶ 23.
{¶59} The trial court specifically concluded that Gibson's crime was more
serious because, among other reasons, it "was certainly facilitated by the prior
relationship with the victim." R.C. 2929.12(B)(6). Though not required to do so, the
trial court further explained its reasons for deciding that Gibson was not amenable to
community control even though he was a first-time offender and the PSI report
recommended community control. These reasons included the fact that "* * * the
testimony showed that there was, number one, illegal activity going on at the time
that put the defendant in the place where he was, that the burglary was calculated
and planned, that it was based upon intimidation* * *."
{¶60} Nor is Gibson's sentence otherwise contrary to law. "A trial court's
sentence would be contrary to law if, for example, it were outside the statutory range,
in contravention to a statute, or decided pursuant to an unconstitutional statute."
State v. Wolters, 7th Dist. No. 14 NO 417, 2014-Ohio-5515, ¶ 9. Gibson was found
guilty of a second-degree felony, which carries with it a prison term range of two to
eight years. See R.C. 2911.12(A)(1), R.C. 2929.14(A)(2). Gibson was sentenced to
three years, within the permitted range. He was afforded his allocution rights. Crim.R.
32(A)(1). The trial court properly imposed post-release control and jail-time credit,
and considered the principles and purposes of felony sentencing and the sentencing
factors. R.C. 2929.11 and R.C. 2929.12.
{¶61} Thus, the sentence is not clearly and convincingly unsupported by the
record; nor is the sentence otherwise contrary to law. Therefore, Gibson's third
assignment of error is meritless.
Conclusion
{¶62} In sum, the trial court did not abuse its discretion by admitting Gibson's
jail-house calls into evidence. Gibson's burglary conviction is not against the manifest
weight of the evidence and the sentence imposed by the trial court was proper.
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Accordingly, the judgment of the trial court is affirmed.

Donofrio, P. J., concurs.

Waite, J., concurs.