[Cite as State v. Razey, 2023-Ohio-4190.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 23CAC030021
JEFFREY RAZEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 22CRB01081
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 21, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ALICIA HARRIS WILLIAM CRAMER
ASSISTANT PROSECUTOR 470 Olde Worthington Road
CITY OF DELAWARE Suite 200
70 North Union Street Westerville, Ohio 43082
Delaware, Ohio 43015
Delaware County, Case No. 23CAC030021 2
Wise, J.
{¶1} Appellant Jeffrey Razey appeals his conviction on one count of theft, entered
in the Delaware Municipal Court, following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} By Complaint filed September 14, 2022, Appellant Jeffrey Razey was
charged with theft, in violation of R.C. §2913.02(A)(1), a first-degree misdemeanor.
{¶5} On March 7, 2023, the matter proceeded to a jury trial.
{¶6} At trial, Meijer loss prevention employee Amy Macklin testified that she was
contacted about a theft at a store in Delaware County and pulled surveillance video.
Macklin saw Appellant in the footage. (T. at 111-113). Macklin testified that the video
starts at around 9:30 p.m. on the general merchandise side of the store. At that time of
night, the general merchandise side of the store usually does not have any open registers
and no greeters. (T. at 115-116).
{¶7} A video shows Appellant exiting a white minivan in the parking lot and then
walking in to the store. As Appellant enters the store through a door on the general
merchandise side, another individual named Shawn Packer exited the minivan and also
started walking toward the store. (T. at 123-124).
{¶8} Another video shows Appellant enter the store, get a shopping cart, and
proceed to the baby department. Appellant selects some items, which appear to be baby
gates, and places them in the cart. Appellant then moved the cart to the women's
department and left it between two racks of clothing. (T. at 116-118).
Delaware County, Case No. 23CAC030021 3
{¶9} Appellant then exited the store and walked to the white minivan, while Packer
exited the minivan and walked past Appellant and into the store. Packer went to the cart
and pushed it to the exit without paying. Appellant drove the minivan to the general
merchandise exit just as Packer exited the store with the cart. Packer loaded the
merchandise into the minivan and got into the passenger side, and Appellant drove
away. Two store employees saw Packer and followed him outside to the minivan. (T. at
119-124).
{¶10} Ms. Macklin confirmed that the merchandise was not paid for, and that the
value of the merchandise was $219.97. (T. at 126-127).
{¶11} Officer Curtis Myers of the Westerville Division of Police testified that he was
called in to investigate the theft offense. Officer Myers stated that he reviewed the video
footage and compared it to a BMV photo to confirm that it was Appellant Razey in the
video. Based on what he saw in the video, Officer Myers issued a criminal Complaint
and Summons for Appellant. (T. at 134-135).
{¶12} The videos were played for the jury and admitted as exhibits. (T. at 140).
{¶13} The jury was instructed on complicity over the objection of the defense. (T.
at 145- 146, 161).
{¶14} Following deliberations, the jury found Appellant guilty as charged. (T. at
169).
{¶15} The trial court sentenced Appellant to fifteen (15) days in jail, one year of
community control, a fine of $500, and restitution of $219.97 to Meijer. (T. at 175). (See
3/7/23 Final Judgment Entry).
{¶16} Appellant now appeals, raising the following errors for review:
Delaware County, Case No. 23CAC030021 4
ASSIGNMENT OF ERROR
{¶17} “I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE INFRINGED BY PROSECUTORIAL
MISCONDUCT.
{¶18} “II. THE CONVICTION FOR THEFT WAS NOT SUPPORTED BY THE
WEIGHT OF THE EVIDENCE.”
I.
{¶19} In his first assignment of error, Appellant argues that he was denied due
process by prosecutorial misconduct at trial. We disagree.
{¶20} Specifically, Appellant argues that prosecutorial misconduct occurred when
the prosecutor asked the Meijer loss prevention employee the following question:
Q: Prior to this case, did you know Mr. Razey by name?
A: I did.
{¶21} (T. at 125).
{¶22} Appellant argues that this question amounted to misconduct because prior
to the commencement of trial, the trial court granted a motion in limine to exclude
evidence regarding prior incidents of theft from Meijer involving Appellant and Packer
which the State had intended to use to prove identity and absence of mistake
pursuant to Crim.R. 404(B).
{¶23} Counsel for Appellant immediately objected, and the trial court sustained the
objection. During jury instructions, the trial court provided a standard instruction that the
jury must not speculate as to why the court sustained objections, what the answers to
those questions would have been, or on the truth of any suggestions included in a
Delaware County, Case No. 23CAC030021 5
question that was not answered, and the jury must disregard any statements or answers
that were stricken by the court. (T. at 156).
{¶24} The test for prosecutorial misconduct is whether the prosecutor's comments
and remarks were improper and if so, whether those comments and remarks prejudicially
affected the substantial rights of the accused. Sunbury v. Sullivan, 5th Dist. Delaware
No. 11CAC030025, 2012-Ohio-3699, 2012 WL 3525617, ¶ 30 citing State v. Lott, 51
Ohio St.3d 160, 555 N.E.2d 293 (1990).
{¶25} In reviewing allegations of prosecutorial misconduct, it is our duty to consider
the complained of conduct in the context of the entire trial. Darden v. Wainwright, 477
U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial is not unfair, if, in the context of
the entire trial, it appears clear beyond a reasonable doubt the jury would have found the
defendant guilty even without the improper comments. State v. Treesh, 90 Ohio St.3d
460, 464, 2001-Ohio-4, 739 N.E.2d 749.
{¶26} Allegations of prosecutorial misconduct implicate due process concerns, and
the touchstone of the analysis is the “ ‘fairness of the trial, not the culpability of the
prosecutor.’ ” State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 92,
quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
If any misconduct occurred, the court must consider the effect it had
on the jury “in the context of the entire trial.” State v. Keenan, 66 Ohio St.3d
402, 410, 613 N.E.2d 203 (1993). With regard to each allegation of
misconduct, we must determine whether the conduct was “improper, and, if
so, whether [it] prejudicially affected substantial rights of the defendant.”
State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[A]
Delaware County, Case No. 23CAC030021 6
defendant's substantial rights cannot be prejudiced when the remaining
evidence, standing alone, is so overwhelming that it constitutes defendant's
guilt, and the outcome of the case would have been the same regardless of
evidence admitted erroneously.” State v. Hicks, 194 Ohio App.3d 743,
2011-Ohio-3578, 957 N.E.2d 866, ¶30 (8th Dist. 2011), citing State v.
Williams, 38 Ohio St.3d 346, 349–350, 528 N.E.2d 910 (1988).
{¶27} State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051,
¶ 109.
{¶28} Whether statements made by a prosecutor amount to misconduct and
whether such statements render a trial fundamentally unfair are mixed questions of law
and fact, which we review de novo. United States v. Carson, 560 F.3d 566, 574 (6th Cir.
2009) citing United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999) citing United
States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993).
{¶29} Our inquiry is guided by four factors: (1) the nature of the remarks; (2)
whether an objection was made by counsel; (3) whether corrective instructions were
given by the court; and (4) the strength of the evidence against the defendant. Sidney v.
Walters, 118 Ohio App.3d 825, 829, 694 N.E.2d 132 (3d Dist.1997)
{¶30} Upon review, we find that alleged misconduct was just a single question to
which Appellant’s counsel objected and the trial court sustained the objection. The trial
court instructed the jury not to speculate as to why it sustained any objections. A
presumption always exists that the jury followed the trial court's instructions. State v.
Loza (1994), 71 Ohio St.3d 61, 79, 641 N.E.2d 1082; Pang v. Minch, 53 Ohio St.3d 186,
187, 559 N.E.2d 1313 (1990), at paragraph four of the syllabus, rehearing denied, 54
Delaware County, Case No. 23CAC030021 7
Ohio St.3d 716, 562 N.E.2d 163. Further, based on our review of the entire case, we do
not find that the contested question was outcome determinative or denied Appellant a
fair trial. We cannot conclude, based on all of the evidence produced at trial, that there
was a reasonable probability that, but for the prosecutor's question, the result of the trial
would have been different.
{¶31} Appellant’s first assignment of error is overruled.
II.
{¶32} In his second assignment of error, Appellant argues that his conviction is not
supported by the weight of the evidence. We disagree.
Standard of Review
{¶33} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541, 547 (1997) quoting State v. Martin (1983), 20 Ohio
App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720–721. Reversing a conviction
as being against the manifest weight of the evidence and ordering a new trial should be
reserved for only the “exceptional case in which the evidence weighs heavily against the
conviction.” Id. See State v. Acker, 5th Dist. Holmes No. 22CA008, 2023-Ohio-2085, ¶
36.
Delaware County, Case No. 23CAC030021 8
{¶34} The trial court's decision should not be disturbed as against the manifest
weight of the evidence if the decision is supported by some competent and credible
evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578
(1978). A reviewing court should not reverse a decision simply because it holds a
different opinion concerning the credibility of the witnesses and evidence submitted
before the trial court. Geary v. Geary, 5th Dist. Delaware, 2015-Ohio-259, 27 N.E.3d
877.
{¶35} Appellant herein was convicted of Theft, in violation of R.C. §2913.02, which
provides:
(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 in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
{¶36} At trial, the state presented testimony and evidence from which the jury could
have found all the essential elements of theft, proven beyond a reasonable doubt. The
jury heard the witnesses, watched the video surveillance tapes, evaluated the evidence,
and was convinced of Appellant's guilt.
{¶37} Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we
cannot reach the conclusion that the jury, as the trier of fact, lost its way and created a
manifest miscarriage of justice. Taken as a whole, the testimony and record contains
ample evidence of Appellant's involvement in the alleged crime.
Delaware County, Case No. 23CAC030021 9
{¶38} The record is devoid of any evidence the jury lost its way in resolving conflicts
in the evidence, and Appellee's evidence supports the guilty verdict of the jury.
{¶39} Appellant’s second assignment of error is overruled.
{¶40} For the forgoing reasons, the judgment of the Municipal Court of Delaware
County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.
JWW/kw 1117