State v. Cundiff, Unpublished Decision (9-9-2002)
State v. Cundiff, Unpublished Decision (9-9-2002)
Opinion of the Court
{¶ 3} Upon arriving at the scene, the officers were informed by a group of people screaming that someone's purse had been stolen. (T. II at 146, 147, 156.)
{¶ 4} Detective Bartolet testified that he observed Defendant-Appellant with a purse in hand, walking away from the group of people and he was asked Officer Hilles to stop Defendant-Appellant while they investigated further. Id.
{¶ 5} Officer Hilles testified that as he was approaching Defendant-Appellant he saw him reach into his left front pocket and the throw something down on the ground, which was then discovered to be a glass crack pipe. (T. II at 157-158, 162).
{¶ 6} Detective Bartolet also testified that he observed the Defendant-Appellant reach into his left front pocket but could did not see if he removed and/or discarded anything. (T. II at 147-148, 152-153).
{¶ 7} Officer Hilles dropped the crack pipe which caused same to break, revealing what was later determined to be crack cocaine inside the pipe. (T. II at 162-163, 165, 174, 178), 185).
{¶ 8} Appellant was arrested and charged with one count of Possession of Cocaine, in violation of R.C. §
{¶ 9} The matter proceeded to jury trial on January 25, 2002, with the jury returning a verdict of guilty on the same day.
{¶ 10} Immediately following the verdict, the trial court sentenced Appellant to a term of imprisonment of 12 months. It was further ordered that Appellant's driver's license be suspended for five years.
{¶ 11} Appellant filed a timely notice of appeal, assigning the following errors:
{¶ 12} "APPELLANT'S CONVICTION FOR POSSESSION OF COCAINE, IN VIOLATION OF OHIO REVISED CODE
2925.11 (a), WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
II.
{¶ 13} "THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM SENTENCE IN VIOLATION OF OHIO REVISED CODE SECTION
2929.14 (C)."
{¶ 15} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991),
{¶ 16} In reviewing whether a conviction is against the manifest weight of the evidence, our standard of review is stated as follows: The court, 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 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. Martin (1983),
{¶ 17} Appellant, in the case sub judice, was convicted of one count of possession of cocaine violation of R.C. §
{¶ 18} Based upon the evidence which is set forth in detail in the statement of facts, we cannot say that the jury lost its way so as to create a manifest miscarriage of justice.
{¶ 19} At trial, the jury heard testimony from Detective Bartolet and Officer Hilles which supported the charge of possession of cocaine. The jury chose to believe said testimony.
{¶ 20} Based on the foregoing, we find that appellant's conviction was not against the manifest weight and sufficiency of the evidence. The jury, as trier of fact, clearly found the witness to be credible.
{¶ 21} Appellant's first assignment of error is, therefore, overruled.
{¶ 23} Revised Code §
{¶ 24} We read this statute in the disjunctive. See State v.Comersford (June 3, 1999), Delaware App. No. 98CA01004, unreported, at 2. Consequently, a maximum sentence may be imposed if the trial court finds any of the above-listed offender categories apply.
{¶ 25} In the case sub judice, the trial court made all the required findings at the sentencing hearing as required by R.C. §
{¶ 26} At the sentencing hearing the trial court not only found that Appellant had served a previous prison term but found that Appellant, who is currently 47 years old, by his own admission has been in prison fourteen times and has been in jail more times than he can remember (T. II at 261-262, 264-267). The court also found that Appellant was not amenable to community control. (T. II at 266).
{¶ 27} Upon review of the aforesaid and the remainder of the record of the sentencing hearing, we hold that the court made the required statutory findings before sentencing appellant to the maximum term. Cf. State v. Klink (Oct. 11, 2000), Richland App. No. 00-CA-16, unreported.
{¶ 28} Appellant's second assignment of error is overruled.
{¶ 29} The judgment of the Stark County Common Pleas Court is affirmed.
Boggins. J., Farmer, P.J., and Wise, J., concur.
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