State v. McCall, Unpublished Decision (9-23-2003)
State v. McCall, Unpublished Decision (9-23-2003)
Opinion of the Court
OPINION
{¶ 1} Barshon McCall, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty of theft, a violation of R.C.{¶ 2} The testimony during trial regarding the timeline of events and the underlying allegations was somewhat confusing, and the following version is a general account of the facts necessary for the purposes of this appeal. In approximately April or May 2002, appellant and Lori Howard began a relationship, and appellant started staying overnight at Howard's apartment. On the evening of June 1, 2002, while at the apartment, Howard claims she told appellant that she wished to end the relationship after they argued about appellant's ex-girlfriend. Howard testified that appellant became angry, brandished a knife, and held her at knifepoint for about four to five hours. Howard stated that, during this period, appellant cut the phone cords downstairs, threw objects at her, and told her he was going to stab her. Although she escaped once and phoned 911 from upstairs, appellant made her hang up. When 911 called back, she told the operator that her daughter had been playing with the phone. Howard testified that, after they argued more, appellant told her to go upstairs and get ready so he could have sex with her one more time. She said when she was upstairs, she heard appellant leave the residence and discovered he had taken $1,200 in cash, jewelry, and her rental car. After driving around in her other car looking for appellant, she returned home and called 911. The police arrived, and she told them what had happened. She testified that she saw appellant at least once, and he called numerous times, before he was arrested on July 25, 2002.
{¶ 3} Appellant's version of the events was very different than Howard's. Appellant testified that, after he came back from a dance club in the early morning hours of June 2, 2002, he argued with Howard. He claims that Howard struck him in the face and asked him to leave. Appellant stated that he left the residence in the rental car, which he had been using for several days with Howard's permission. He denied taking any jewelry or money from Howard or threatening her with a knife.
{¶ 4} Authorities located appellant driving Howard's rental car on June 8, 2002, but released him because Howard told an officer over the phone that she did not wish to prosecute. Howard testified at trial that she told the officer on the phone she did not want to prosecute because somebody had called her on call waiting at the same time and threatened her. Appellant testified that, at the time he was stopped, he had been on the way to the grocery store to buy cheese for Howard because she was cooking them dinner, and he had stayed at her house on several occasions since the June 2, 2002 incident. The police impounded the vehicle, and appellant testified that he walked to Howard's house, where Howard denied that she had reported the car stolen. Appellant testified that he stayed at Howard's house that night, but they had an argument the next day, so he left. He said he went back to her house on June 13, 2002, to get his belongings at Howard's request. Appellant testified that, although Howard had given him a key to the house on May 31, 2002, she had changed the locks, and he could not get in. After appellant arrived at her apartment, she and appellant had an argument, and appellant left without his clothes. Howard, however, testified that appellant broke into her house on June 13, 2002, and stole several more items.
{¶ 5} Appellant testified Howard asked him back to her apartment in the early morning hours of July 24, 2002, and he stayed there until the evening, when they got into another argument. Appellant stated that Howard told him to leave, so he packed his clothes in duffle bags and started walking down the road. Howard then apparently left her house and waived down a passing police officer. She told the officer that appellant had stolen things from her and had outstanding warrants. The police officer eventually located appellant walking down the street, and he was subsequently arrested.
{¶ 6} On August 2, 2002, appellant was charged with one count of aggravated robbery, two counts of robbery, one count of kidnapping, one count of abduction, and one count of theft. A trial was held November 4 through November 8, 2002. Testifying on behalf of the state were Wendell Tolber, an officer for the Columbus Police Department; Sarita Garrett-Brown, Howard's neighbor who testified that Howard told her on the evening of June 1, 2002, that appellant had just threatened her with a knife and who called 911 in the early morning hours of June 2, 2002, after hearing screams coming from Howard's apartment; and Howard. Christina Whitacre, a detective with the Columbus Police Department; Todd Agee, an officer for the Columbus Police Department; and appellant testified on behalf of the defense. The jury found appellant guilty of one count of theft and not guilty on all other charges. The trial court sentenced appellant to a term of community control and ordered restitution. Appellant appeals the judgment of the trial court, asserting the following assignment of error:
THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 7} Appellant argues in his sole assignment of error the trial court's judgment was based upon insufficient evidence and was against the manifest weight of the evidence. When determining whether a conviction is against the manifest weight, the 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction. State v. Thompkins (1997),
{¶ 8} Appellant makes no distinction between the manifest weight and sufficiency of the evidence arguments in his brief. His basic ground for reversing the trial court is a general argument that Howard's testimony with regard to the taking of the cash and jewelry was not credible. However, with regard to the sufficiency of the evidence claim, an appellate court does not weigh credibility. See State v. Coit, Franklin App. No. 02AP-475, 2002-Ohio-7356, citing Ruta v. Breckenridge-Remy Co. (1982),
{¶ 9} R.C.
{¶ 10} With regard to the manifest weight of the evidence argument, appellant claims that Howard's testimony was "severely undermined" during cross-examination, and she gave testimony that was inconsistent with the statement she gave to police. However, appellant fails to cite to or describe a single inconsistency specifically regarding the theft of the cash and jewelry. Our review of the record reveals that the only major inconsistencies with regard to the facts surrounding this charge are the amount and source of the cash Howard reported stolen. She initially told one detective on videotape that $1,000 in cash was stolen, but testified at trial and claimed for insurance purposes that it was $1,200. Such inconsistency does not necessarily undermine her entire testimony on whether a theft took place. Howard explained that, at the time she spoke to the police, she had not been certain how much money her family had given her, and she claimed she told the police officer before they began the videotape interview that she would have to check with her family. She said she told the police it had been at least $1,000 before they began taping the interview. She also testified that, although she told the officer that the money was from her mother, but stated at trial that it was from her grandmother, the money was actually from her family, in general, which included both her grandmother and mother.
{¶ 11} Our review of the record does reveal some other general inconsistencies in Howard's overall testimony. However, these inconsistencies mainly concern the other crimes alleged by Howard. Although the jury may have found Howard's testimony less credible than appellant's testimony with regard to the facts surrounding the other counts, the law is clear that a jury is free to believe all, some, or none of the testimony of any witness. See State v. Antill (1964),
{¶ 12} Even though a manifest weight of the evidence challenge requires us to review the record and weigh the evidence, our review of appellant's nonspecific argument that Howard's testimony was not credible is tempered by the principle that questions of weight and credibility are primarily for the trier of fact. State v. DeHass (1967),
{¶ 13} After reviewing the entire record, weighing the evidence and all reasonable inferences, we find that the jury did not clearly lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The jury apparently found Howard's testimony credible. Thus, appellant's conviction was not against the manifest weight of the evidence. Therefore, appellant's assignment of error is overruled.
{¶ 14} Accordingly, appellant's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BOWMAN and WATSON, JJ., concur.
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