[Cite as State v. Clark,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. CT2018-0006 : ZAIRE L. CLARK : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2017-0173

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 29, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

D. MICHAEL HADDOX OHIO PUBLIC DEFENDER MUSKINGUM CO. PROSECUTOR NIKKI TRAUTMAN BASZYNSKI GERALD V. ANDERSON 250 East Broad St. – Ste. 1400 27 North Fifth St., P.O. Box 189 Columbus, OH 43215 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2018-0006 2

Delaney, J.

{¶1} Appellant Zaire L. Clark appeals from the November 17, 2017 Judgment

Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} Appellant and Vincent Brown have an on-again, off-again relationship;

Brown describes appellant as his fiancée. In 2016, the two had a number of “legal issues”

with each other that resulted in Brown’s conviction for violation of a temporary protection

order. Brown served a prison term and was on post-release control as of May 7, 2017.

Brown was ordered not to have contact with appellant, but he was admittedly staying with

appellant at her home at least periodically.

{¶3} Appellant at the time was living at 1236 Putnam Avenue. This residence is

very close to 1227 Moxahala and 1227½ Moxahala. 1227½ is an in-law suite occupied

by Jennie Uhlman. Uhlman is a longtime neighbor and friend of both appellant and

Brown. Uhlman’s daughter Sylvia lives at 1227.

Brown’s account

{¶4} Brown asked Uhlman if he could occasionally sleep on her couch so he

could remain close to appellant but avoid being in violation of the terms of his post-release

control.1 Uhlman agreed.

{¶5} Brown testified at trial for appellee and acknowledged appellant has a

“mercurial temperament” with swift, drastic mood changes. Brown testified these are

symptoms of her mental illness and are exacerbated by drug abuse. On May 6, 2017,

1 Testimony varied as to where Brown lived. He told law enforcement he was living at 1227½ Moxahala, but the evidence indicated he lived with appellant and tried to hide the fact so as to not be in violation of the terms of his post-release control. Muskingum County, Case No. CT2018-0006 3

appellant had not slept for a long period of time and became upset when she went through

Brown’s phone. Brown woke up in the late night hours of May 6 as appellant ordered him

to leave and threatened to call police to have him sent back to prison.

{¶6} Brown asked Uhlman if he could sleep on her couch and she helped him

move a few belongings over to her residence. The items Brown brought with him included

a small flat-screen T.V. Brown testified he didn’t tell appellant where he was going.2 Once

he moved his items to Uhlman’s, he laid down on the couch and fell asleep. He woke up

to find appellant carrying the small T.V. out the door of Uhlman’s residence. Brown

testified he didn’t see appellant enter the residence; the door had been closed and dead-

bolted but it wasn’t secure because the window in the door was broken and had Plexiglass

taped over it.

{¶7} Upon the commotion in the living room, Uhlman also woke up and came

into the room. Brown told her appellant had come to take the T.V. back and that he was

going back to sleep. He and Uhlman closed the door and put a curio cabinet against the

door to keep it closed. Brown testified he wanted to avoid an altercation with appellant

because he didn’t want to return to prison. He was unconcerned about the T.V. and went

back to sleep.

{¶8} Appellant returned and knocked on the door. In Brown’s account, Uhlman

came to the door and told her to go home. At some point appellant was back inside the

house, the curio cabinet was overturned, and Uhlman was attempting to push her out.

Brown claimed not to have seen appellant enter the residence. According to Brown,

2Minor inconsistencies are throughout the witnesses’ accounts. For example, Brown said he didn’t tell appellant where he was going, but Uhlman said appellant called her and asked if Brown could stay there. Muskingum County, Case No. CT2018-0006 4

appellant and Uhlman ended up fighting outside the house. Brown claimed he “didn’t

know who started what,” and he could only confirm that Uhlman asked appellant to leave.

Uhlman’s account

{¶9} Uhlman testified that appellant called her in the evening hours of May 6,

2017, and was very upset because she wanted Brown out of the house. Uhlman agreed

Brown could sleep on her couch and helped him gather some belongings including a

small T.V.

{¶10} Uhlman awoke in the early morning hours of May 7 to the sound of glass

shattering and Brown yelling. Uhlman put on a housecoat and went into the living room

to discover her door had been “busted in,” appellant was in the living room, and Brown

was upset that she was there. Someone called the police or claimed to have called police,

so appellant left. Uhlman suspected appellant would return so she and Brown placed a

curio cabinet in front of the door.

{¶11} Appellant did return and knocked over the curio cabinet. Brown told Uhlman

appellant took the T.V. According to Uhlman, she herself stumbled over the curio cabinet

as she went to look out the door. As she looked out, Uhlman said she was suddenly

struck across the face with a metal pole. The pole turned out to be the handle of a steam

mop, without the mop-head attachment. A photo of the mop handle was admitted as

appellee’s exhibit C-26. Appellant and Uhlman then struggled with each other, fighting.

Uhlman testified her daughter and other bystanders broke up the fight. Appellant

retreated to her own residence.

{¶12} Uhlman further testified that the “pole” or “mop handle” she was struck with

did not come from her house; the door to her home was dead bolted but not secure due Muskingum County, Case No. CT2018-0006 5

to the Plexiglass taped over the window; and she didn’t give appellant permission to enter

her home.

Additional witnesses

{¶13} Sylvia Myers, Uhlman’s daughter, testified she was awakened by a friend

telling her appellant was beating up Myers’ mother. Myers ran outside and tried to

separate the two. Myers testified appellant struck Uhlman across the face with a metal

“cleaning tool” which she then threw to the ground. Appellant then walked back to her

own residence. Myers added that appellant seemed to be angry with Uhlman because

she accused Brown of being involved with another of Uhlman’s daughters.

{¶14} Zanesville police were brought to the area of Putnam and Moxahala by

multiple 911 calls. The first caller alleged a black male with a gun was in the area. This

911 call was played at trial and witnesses identified the caller as appellant. Detective Jon

Hill testified the call was determined to be “fake;” no man with a gun was found, no gun

was found at the scene, and no one else reported a man with a gun.

{¶15} Police took statements from the witnesses and photographed Uhlman’s

injuries.

{¶16} Police went to appellant’s residence to investigate. While speaking with

appellant, Ptl. Brian Ruff observed her demeanor was very erratic; she was speaking

quickly and disjointedly. He believe appellant was under the influence of narcotics. Inside

appellant’s residence, Ruff observed the butt of a firearm on a chair in the living room.

He asked whether it had been left behind by Brown and appellant said no, it was a BB

gun. She then showed him a stun gun she used for “safety.” Ruff observed drug Muskingum County, Case No. CT2018-0006 6

paraphernalia in plain view throughout the living room, including a spoon with black

residue on the coffee table and a loaded syringe.

{¶17} Law enforcement obtained a search warrant for appellant’s residence.

Drugs and drug paraphernalia were found throughout the residence, photographed, and

collected. The parties jointly stipulated that substances found in the residence tested as

4.31 grams of methamphetamine and 2.08 grams of heroin and fentanyl.

{¶18} Appellant was charged by indictment as follows: Count I, burglary pursuant

to R.C. 2911.12(A)(1), a felony of the second degree; Count II, aggravated burglary

pursuant to R.C. 2911.11(A)(1), a felony of the first degree; Count III, aggravated burglary

pursuant to R.C. 2911.11(A)(2), a felony of the first degree; Count IV, felonious assault

pursuant to R.C. 2903.11(A)(2), a felony of the second degree; and Count V, drug

possession (methamphetamine) pursuant to R.C. 2925.11(A), a felony of the third degree.

{¶19} Appellant entered pleas of not guilty and the matter was scheduled for trial

by jury to proceed on September 6, 2017.

{¶20} On August 31, 2017, appellant filed a motion to “relinquish” her counsel.3

The trial court addressed the matter at a hearing on September 5, 2017, and ordered a

competency evaluation of appellant prior to determining her motion to waive her right to

counsel.

{¶21} A competency hearing was held on October 27, 2017, and the parties

stipulated to admission of an expert report finding appellant is “with a reasonable degree

of psychological certainty, [ ] presently capable of assisting in her defense * * *.” Also on

3 Attorney Keith Edwards was appointed defense trial counsel. Muskingum County, Case No. CT2018-0006 7

that date, the trial court denied appellant’s request to waive counsel and ordered that

Edwards would continue as defense trial counsel.

{¶22} The matter proceeded to trial by jury. Appellant was found guilty upon

Counts III and V (aggravated burglary and drug possession) and not guilty upon Counts

II and IV (aggravated burglary and felonious assault).4

{¶23} On December 11, 2017, appellant filed a pro se “motion for acquittal.”

{¶24} A sentencing hearing was held on December 18, 2017. The trial court

overruled appellant’s motion for acquittal and imposed, e.g., an aggregate prison term of

10 years.

{¶25} Appellant now appeals from the trial court’s entry of conviction and

sentence dated December 19, 2017.

{¶26} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶27} “I. THE TRIAL COURT ERRED WHEN IT DENIED [APPELLANT] HER

RIGHT TO SELF-REPRESENTATION.”

{¶28} “II. [APPELLANT’S] AGGRAVATED-BURGLARY CONVICTION WAS

BASED UPON INSUFFICIENT EVIDENCE.”

{¶29} “III. [APPELLANT’S] AGGRAVATED-BURGLARY CONVICTION WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

4 Appellee moved to dismiss Count I, burglary, prior to commencement of closing arguments, and the trial court granted the motion to dismiss. Muskingum County, Case No. CT2018-0006 8

{¶30} “IV. THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE

SENTENCING HEARING, WHICH RESULTED IN THE IMPOSITION OF A TEN-YEAR

TERM OF IMPRISONMENT UPON [APPELLANT].”

ANALYSIS

I.

{¶31} In her first assignment of error, appellant argues the trial court erred in

denying her motion to represent herself. We disagree.

{¶32} The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution provides that a criminal defendant has a right to counsel.

Crim.R. 44(A) provides that a defendant is entitled to counsel “unless the defendant, after

being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily

waives his right to counsel.”

{¶33} A criminal defendant also has the constitutional right to waive counsel and

to represent herself at trial. Faretta v. California,

,

,

(1975). The waiver of counsel has been described as “a stormy sea for a trial court

to navigate.” State v. Gatewood, 2nd Dist. Clark No. 2008 CA 64,

, ¶ 34.

{¶34} “[T]he Constitution * * * require[s] that any waiver of the right to counsel be

knowing, voluntary, and intelligent * * *.” Iowa v. Tovar,

, 87–88,

,

(2004). “In order to establish an effective waiver of [the] right to

counsel, the trial court must make sufficient inquiry to determine whether defendant fully

understands and intelligently relinquishes that right.” State v. Gibson,

,

(1976), paragraph two of the syllabus. The defendant must make an

intelligent and voluntary waiver with the knowledge [s]he will have to represent [her]self, Muskingum County, Case No. CT2018-0006 9

and that there are dangers inherent in self-representation. State v. Ebersole,

,

(3rd Dist. 1995), citing

{¶35} In Gibson, the Ohio Supreme Court applied the test set forth in Von Moltke

v. Gillies,

,

,

(1948), which established the

requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:

To be valid such waiver must be made with an apprehension

of the nature of the charges, the statutory offenses included within

them, the range of allowable punishments thereunder, possible

defenses to the charges and circumstances in mitigation thereof, and

all other facts essential to a broad understanding of the whole matter.

A judge can make certain that an accused's professed waiver of

counsel is understandingly and wisely made only from a penetrating

and comprehensive examination of all the circumstances under

which such a plea is tendered.

State v. Gibson,

,

(1976).

{¶36} The right of self-representation is not absolute. Indiana v. Edwards,

,

,

(2008); see also, Martinez v. Court of Appeal

of Cal., Fourth Appellate Dist.,

,

,

(2000)

[no right of self-representation on direct appeal]; McKaskle v. Wiggins,

, 178-

179,

,

(1984) [appointment of standby counsel over self-

represented defendant's objection is permissible];

,

,

[no right ‘to abuse the dignity of the courtroom’].” Muskingum County, Case No. CT2018-0006 10

{¶37} Moreover, the U.S. Supreme Court has held the right of self-representation

does not exist to “avoid compliance with ‘relevant rules of procedural and substantive law’

or to ‘engage[e] in serious and obstructionist misconduct.’“ Indiana v. Edwards,

,

,

(2008), citing

. “A trial

court must be permitted to distinguish between a manipulative effort to present particular

arguments and a sincere desire to dispense with the benefits of counsel.” U.S. v. Frazier-

El,

(2000); see also, State v. Norris, 5th Dist. Stark No. 2007CA00101,

,

,

,

[defendant's

failure to comply with procedural rules demonstrated manipulation, not desire to invoke

right of self-representation].

{¶38} Courts are to indulge in every reasonable presumption against the waiver

of a fundamental constitutional right such as the right to be represented by counsel. State

v. Dyer,

,

(2d Dist. 1996) (emphasis added). A

criminal defendant must “unequivocally and explicitly invoke” her right to self-

representation. State v. Cassano,

,

,

, ¶

38. When a request for self-representation is not unequivocally and timely made, the trial

court may, in its discretion, deny the request. State v. Halder, 8th Dist. Cuyahoga No.

87974,

.

{¶39} There is no prescribed colloquy to establish an effective waiver; the

information a defendant must possess to make an intelligent election “‘depend[s] on a

range of case-specific factors, including the defendant's education or sophistication, the

complex or easily grasped nature of the charge, and the stage of the proceeding.’” State Muskingum County, Case No. CT2018-0006 11

v. Johnson,

,

,

, quoting Iowa

v. Tovar,

,

,

(2004).

{¶40} The trial court is in the best position to determine whether appellant’s waiver

of counsel is knowing and intelligent. “The trial court was not required to surrender the

courtroom to a defendant who wished to represent [herself] but failed to demonstrate that

[she] waived the right to counsel knowingly and intelligently.” State v. Buchanan, 8th Dist.

No. 104500,

,

, ¶ 17, appeal not allowed,

,

,

.

{¶41} In the instant case, we disagree with appellant’s characterization of her

actions as an unequivocal, explicit invocation of her right to represent herself. Appellant

asked to “relinquish” counsel with her letter to the trial court of August 31, 2017. The trial

court addressed the request at the hearing on September 5, noting that appellant’s

communication with the court about several issues led the court to seriously question her

competency. The trial court therefore ordered a competency evaluation and held the

remainder of appellant’s requests in abeyance, including the request to represent herself.

{¶42} On October 27, 2017, the parties appeared for a competency hearing and

stipulated to the expert report. The hearing continued as follows:

* * * *.

THE COURT: The Court has before it the report of Dr.

Shannon Porter indicating that she finds that the defendant is

competent to—has the ability to work with counsel and assist in her

defense, should she choose to do so. And it did indicate that her Muskingum County, Case No. CT2018-0006 12

personality style may pose a challenge for any attorney that may be

involved in the case.

The Court finds, based upon the stipulation of the report, that

the defendant is competent to stand trial, and the matter will proceed

according to law.

Next, the Court will deal with the issue of her request to

represent herself. This indicates that you are competent to assist an

attorney but not that you’re an attorney. It is not indicated in this

report.

Obviously, the problems that you have led me to have this

evaluation done because you have sent out numerous letters to

myself, to the prosecutor, and everybody else that indicates that you

are not aware of what could hurt you and what could help you.

Therefore, you need an attorney to represent you.

You requested Mr. Edwards the first time they went to talk to

you about getting an attorney. Mr. Edwards is your attorney. He will

assist you. You will work with him, and you will not get mad and yell

and scream and rant and rave. Do you understand?

THE DEFENDANT: Yes, Your Honor.

THE COURT: He will assist you. He will let you know when

the trial has been set, and he’ll help you prepare your defense and

let you proceed to trial. You cooperate with him. He is an excellent

attorney, handles numerous cases, as you just saw in this courtroom. Muskingum County, Case No. CT2018-0006 13

He knows what he’s doing. Listen to him, and he will help you. You’ll

be remanded to the custody of the sheriff, and your new trial date will

be set.

THE DEFENDANT: May I say something?

THE COURT: Yes, you may.

THE DEFENDANT: Can—may I have the evidence he denied

me of, the pictures that has to do with my case that he denied me on

a phone call?

THE COURT: Mr. Edwards, what pictures is she talking

about?

MR. EDWARDS: I have provided her all of the—a full copy of

any non-counsel-only paper discovery. And then the electronic

discovery, I took my laptop in to the jail and showed her all the

pictures. She wants printouts of additional pictures in addition to

what was provided in paper discovery. I told her I’m not giving her

those.

THE COURT: Are there other pictures?

MR. EDWARDS: She’s seen every single piece of discovery.

We’ve gone through every page of it carefully.

THE DEFENDANT: Your Honor, he gave me pictures that—

two of them’s not even has anything to do with my case because the

charges was dropped. (Sic throughout.)

THE COURT: He gave you what the prosecutor gave him. Muskingum County, Case No. CT2018-0006 14

THE DEFENDANT: He said he was going to give them to me-

-

THE COURT: He cannot create something he does not have.

THE DEFENDANT: --and then he said he was not because I

was acting like a lunatic. So he denied me my evidence one—over

the phone call, recorded phone call. He said he’s not giving me my

evidence. He told me he was going to give them to me, have them

in color, instead of distorted.

THE COURT: This is why you can’t represent yourself. Hold

on one second. He just stated in this courtroom he has shown you

all the evidence he has. Is that correct?

MR. EDWARDS: That’s right.

THE DEFENDANT: He did state that, but he was supposed

to give me copies of the pictures and he stated that also.

THE COURT: Have you given her copies?

MR. EDWARDS: I’ve given her a copy of all the paper

discovery, and I’ve shown her all of the electronic discovery, played

every interview that was recorded. I believe I’ve given her and shown

her and shared with her and made her aware of everything the State

has given me on two occasions. And we’ll do it again with her before

trial.

THE COURT: Obviously, in prepping for trial, you will review

everything all over again. Muskingum County, Case No. CT2018-0006 15

THE DEFENDANT: Well, he’s saying something different

beside what he said on the phone. If you go back to the phone call,

you will hear it.

THE COURT: Well, it doesn’t matter what he said on the

phone call. That is what he’s saying now, and that is what he’s going

to do. You just assured me you will cooperate with him.

THE DEFENDANT: I did, but that’s--

THE COURT: That’s what you two are going to do. And

you’re going to be quiet and go have a seat, and they’ll take you back

to the jail.

T. II, 3-7.

{¶43} We review a trial court's denial of a request for self-representation asserted

prior to the commencement of trial de novo. See, State v. Degenero, 11th Dist. Trumbull

No. 2015-T-0104,

, appeal not allowed,

, 2017-

Ohio-4038,

.

{¶44} In the instant case, we find appellant revoked her request to represent

herself and accepted the representation of appointed counsel. State v. Cook, 5th Dist.

No. 2015CA00090,

,

, ¶ 90. We do not find, and appellant

does not point to, any renewal of her request to represent herself after the letter of August

31, 2017.

{¶45} Appellant argues she should have been permitted to represent herself, but

as of the competency hearing of October 27, and again by the time of trial on November

14, there is no evidence appellant sought to proceed pro se. Nor was counsel forced upon Muskingum County, Case No. CT2018-0006 16

her. Appellant agreed to the appointment of Attorney Edwards, who continued to

represent her at trial. We are thus unable to find that appellant voluntarily, knowingly, and

intelligently elected to represent herself because the record establishes her acceptance

of court-appointed counsel. Id. at ¶ 91.

{¶46} Our conclusion is in accord with the decision of the Ohio Supreme Court

finding if the record definitively demonstrates a defendant abandoned her request to

represent herself, as it does here, there is no violation of the Sixth Amendment right to

self-representation.

, citing State v. Obermiller,

,

,

.

{¶47} The trial court was patient with, and respectful of, appellant; listened to her

arguments; attempted to explain the process; and permitted appellant to raise the

discovery issues she was concerned about. State v. West, 2nd Dist. Greene No. 2015-

CA-72,

. The court also diligently attempted to ascertain whether

appellant truly wanted to represent herself or whether she wanted to proceed with

counsel; but she was not clear and unequivocal about her desire to proceed on her own

behalf.

As is evident from the exchange cited supra, appellant’s concern was access

to the alleged missing discovery.

{¶48} We are unable to conclude the trial court erred in keeping Edwards in place

as court-appointed counsel. We conclude appellant waived the request to represent

herself because she consented to Edwards’ representation, did not renew her request to

represent herself, and permitted counsel to act on her behalf at trial.

{¶49} The expert assessment of appellant’s competence has been made part of

the record for our review. The report states in pertinent part, “* * *[I]t is also my opinion, Muskingum County, Case No. CT2018-0006 17

with a reasonable degree of psychological certainty, that the defendant is currently

capable of understanding the nature and objective of the legal proceedings and assisting

counsel in her own defense (if she chooses to do so.) * * * *. [Emphasis in original.] In

this case, after the trial court observed appellant’s erratic behavior in open court and

through her pro se communications, the court determined that it was necessary for

appellant to undergo an evaluation to determine whether she fully understood and

intelligently relinquished her right to counsel. See, State v. Cedeno, 8th Dist. Cuyahoga

No. 102327,

, appeal not allowed,

, 2016-Ohio-

2807,

. The parties stipulated to the report finding appellant competent to

stand trial. “Nevertheless, a trial court may rely on its own observations to determine

whether to grant a defendant's request to proceed pro se, which may be contrary to the

expert reports.”

, citing State v. Were,

, 2008–Ohio–2762,

[court may rely on own observations to

determine competency]. In this case, the trial court relied on its own observations and

interactions with appellant, appellant did not renew her request to represent herself, and

consented to representation by appointed counsel.

{¶50} Appellant’s first assignment of error is overruled.

II., III.

{¶51} Appellant’s second and third assignments of error are related and will be

considered together. She argues her aggravated-burglary conviction is not supported by

sufficient evidence and is against the manifest weight of the evidence. We disagree.

{¶52} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins,

, Muskingum County, Case No. CT2018-0006 18

,

, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

,

(1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

{¶53} 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, supra, 78 Ohio St.3d at 387.

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.

{¶54} Sufficiency of the evidence is a legal question dealing with whether the state

met its burden of production at trial. State v. Murphy, 5th Dist. Stark No. 2015CA00024,

2015–Ohio–5108, ¶ 13, citing State v. Thompkins,

,

(1997). “Specifically, an appellate court's function, when reviewing the sufficiency of

the evidence to support a criminal conviction, is to examine the evidence admitted at trial Muskingum County, Case No. CT2018-0006 19

to determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt.” Murphy at ¶ 15. The test for sufficiency of

the evidence raises a question of law and does not permit the court to weigh the evidence.

State v. Martin,

,

(1st Dist. 1983).

{¶55} The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. Murphy at ¶ 15, citing

Thompkins at 386.

{¶56} In the instant case, appellant was convicted of aggravated burglary

pursuant to R.C. 2911.11(A)(2), which states in pertinent part: “No person, by force,

stealth, or deception, shall trespass in an occupied structure * * *, when another person

other than an accomplice of the offender is present, with purpose to commit in the

structure * * * any criminal offense, if any of the following apply: [t]he offender has a

deadly weapon or dangerous ordnance on or about the offender's person or under the

offender's control.”

{¶57} Appellant argues appellee’s evidence failed to meet two elements: no

evidence exists she trespassed inside Uhlman’s home, and the mop handle was not a

deadly weapon.

{¶58} The jury could reasonably find the mop handle wielded in the instant case

was a “deadly weapon” and the finding is not against the manifest weight of the evidence.

A “deadly weapon” is any instrument, device, or thing capable of inflicting death, and

designed or specially adapted for use as a weapon, or possessed, carried, or used as a

weapon. R.C. 2923.11(A). An instrument, no matter how innocuous when not in use, is Muskingum County, Case No. CT2018-0006 20

a deadly weapon if it is of sufficient size and weight to inflict death upon a person, when

the instrument is wielded against the body of the victim or threatened to be so wielded.

State v. Deboe,

, 193–94,

(6th Dist. 1977). The

manner of use of the instrument, its threatened use, and its nature determine its capability

to inflict death.

A factfinder may “infer the deadly nature of an instrument from the

facts and circumstances of its use.” State v. Vondenberg,

,

(1980). Examples of deadly weapons vary. See, State v. Deboe,

, 193–94,

(6th Dist. 1977) [bat “wrapped with something

spongy”]; State v. Pope, 3rd Dist. Logan No. 8-89-19,

, *4 [toilet plunger

handle]; State v. Ford, 2nd Dist. Montgomery No. CA 14389,

, *2 [metal

bar]; State v. Smith, 8th Dist. Cuyahoga No. 103676,

[chair leg]; State v.

Redmon, 5th Dist. Stark No. CA-7938,

, *2, appeal dismissed,

,

(1990) [wicker rocking chair].

{¶59} In the instant case, Uhlman testified appellant struck her hard across the

face with the mop handle. Uhlman was not rendered unconscious but she did sustain

bruising and injury to her face as illustrated by appellee’s exhibit B-4. She still suffered

pain from the incident as of the date of trial six months later. It was a question of fact for

the jury to determine whether the mop handle was a deadly weapon within the definition

of R.C. 2923.11(A), and upon the evidence, this court is not in a position to disturb its

conclusion. State v. Pope, supra, 3rd Dist. Logan No. 8-89-19,

, *4.

{¶60} Appellant next argues there is insufficient evidence she entered Uhlman’s

residence with the mop handle, although she acknowledges a police officer testified

witnesses told him that night appellant entered the residence with some type of sweeper Muskingum County, Case No. CT2018-0006 21

or broomstick. We have held that the testimony of one witness, if believed by the

factfinder, is enough to support a conviction. See, State v. Dunn, 5th Dist. Stark No. 2008–

CA–00137, 2009–Ohio–1688, ¶ 133. Appellee’s photographs demonstrate appellant

entered the residence by thrusting her hand through the Plexiglass-covered window in

the door, as shown in appellee’s exhibits C-7 and C-13. The curio cabinet was knocked

over and broken (appellee’s exhibits C-8, C-9, and C-11). The small T.V. Brown brought

with him was gone and later found in appellant’s residence.

{¶61} Appellant’s specific argument is that the evidence does not establish she

trespassed in Uhlman’s residence with the mop handle. The mop handle came from

appellant’s residence. Uhlman was struck with it as she looked out her door. Myers saw

appellant holding the cleaning tool as she fought with Uhlman. The sticker from the mop

handle was found on the ground right outside 1227½. Appellee’s exhibits C-5 and C-6

show the sticker just outside the threshold.

{¶62} The weight to be given the evidence introduced at trial and the credibility of

the witnesses are primarily for the trier of fact to determine. State v. Thomas,

,

(1982), syllabus. It is not the function of an appellate court to

substitute its judgment for that of the factfinder. State v. Jenks,

,

(1991).

{¶63} Any inconsistencies in the witnesses’ accounts were for the trial court to

resolve. State v. Dotson, 5th Dist. Stark No. 2016CA00199,

. “The

weight of the evidence concerns the inclination of the greater amount of credible evidence

offered in a trial to support one side of the issue rather than the other.” State v. Brindley,

10th Dist. Franklin No. 01AP–926, 2002–Ohio–2425, ¶ 16. We defer to the trier of fact as Muskingum County, Case No. CT2018-0006 22

to the weight to be given the evidence and the credibility of the witnesses. State v.

DeHass,

,

(1967), at paragraph one of the syllabus.

When assessing witness credibility, “[t]he choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan,

,

(1986). “Indeed, the factfinder is free to believe all, part, or

none of the testimony of each witness appearing before it.” State v. Pizzulo, 11th Dist.

Trumbull No. 2009–T–0105, 2010–Ohio–2048, ¶ 11. Furthermore, if the evidence is

susceptible to more than one interpretation, a reviewing court must interpret it in a manner

consistent with the verdict.

{¶64} The finder of fact may take note of the inconsistencies and resolve or

discount them accordingly, but such inconsistencies do not render defendant's conviction

against the manifest weight of the evidence. State v. Nivens, 10th Dist. Franklin No.

95APA09–1236,

, at *3 (May 28, 1996).

{¶65} Upon our review of the entire record, we conclude appellant's aggravated

burglary conviction is supported by sufficient evidence and is not against the manifest

weight of the evidence. Appellant's second and third assignments of error are overruled.

IV.

{¶66} In her fourth assignment of error, appellant argues the prosecutor

committed misconduct during the sentencing hearing. We disagree.

{¶67} Appellant points to several instances of alleged prosecutorial misconduct at

the sentencing hearing, when the prosecutor referenced the following: she assaulted

Uhlman despite acquittal upon the charges related to the assault; appellant was “beating Muskingum County, Case No. CT2018-0006 23

up” people in jail; heroin was found in the apartment but she wasn’t charged for it; and

she “set up” Brown to get shot by police with the false 911 call.

{¶68} The statement about appellant’s conduct in jail is merely an allegation, and

the Rules of Evidence do not apply at sentencing hearings. State v. Jackson, 6th Dist.

No. E–01–024, 2002–Ohio–2359, ¶ 38; Evid.R. 101(C)(3) (“These rules * * * do not apply

in the following situations: * * * sentencing * * *.”).

{¶69} The remaining statements are arguable characterizations of the evidence

at trial. The test for prosecutorial misconduct is whether the prosecutor's remarks and

comments were improper and if so, whether those remarks and comments prejudicially

affected the substantial rights of the accused. State v. Lott,

, 555 N.E

.2d 293 (1990), cert. denied,

,

, 112 L.Ed .2d 596 (1990). In

reviewing allegations of prosecutorial misconduct, we must review the complained-of

conduct in the context of the entire trial. Darden v. Wainwright,

,

,

(1986). Prosecutorial misconduct will not provide a basis for

reversal unless the misconduct can be said to have deprived appellant of a fair trial based

on the entire record.

. In assessing the existence of

prosecutorial misconduct, we are mindful that “the touchstone of this analysis is the

fairness of the [proceeding], not the culpability of the prosecutor.” State v. Twyford,

(2002).

{¶70} We note appellant did not object to these statements during the sentencing

hearing. State v. Snyder, 3rd Dist. Seneca No. 13-12-38,

. If trial

counsel fails to object to the alleged instances of prosecutorial misconduct, the alleged

improprieties are waived, absent plain error. State v. White,

, 1998– Muskingum County, Case No. CT2018-0006 24

Ohio–363,

(1998), citing State v. Slagle,

,

(1992).

{¶71} We therefore review appellant's allegations under the plain-error standard.

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” The rule places

several limitations on a reviewing court's determination to correct an error despite the

absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a

legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious'

defect in the trial proceedings,” and (3) the error must have affected “substantial rights”

such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,

5th Dist. Stark No. 2008–CA–00137, 2009–Ohio–1688, citing State v. Morales, 10 Dist.

Franklin Nos. 03–AP–318, 03–AP–319, 2004–Ohio–3391, at ¶ 19. The decision to correct

a plain error is discretionary and should be made “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.

Long,

,

(1978), paragraph three of the syllabus.

{¶72} Appellant points to no authority supporting her position that the contested

statements at sentencing rose to the level of prosecutorial misconduct. Moreover, we

disagree with appellant’s conclusion that the trial court relied upon these statements to

the prejudice of appellant. The trial court heard the evidence and the jury’s verdict. The

trial court noted the P.S.I. factored in the sentencing and it has been included in the record

for our review. The trial court was more concerned with appellant’s lengthy criminal

record including 2 prior felony and 19 misdemeanor convictions. “In light of the trial court's

consideration of the entire record, we cannot find that several sentences spoken by the Muskingum County, Case No. CT2018-0006 25

prosecutor amount to prosecutorial misconduct that affected the outcome of [appellant’s]

sentence.” State v. Snyder, 3rd Dist. Seneca No. 13-12-38,

.

{¶73} We find no evidence in the record that the trial court relied on the

prosecutor’s comments in imposing appellant's sentence. The P.S.I. and the testimony

and information presented at the sentencing hearing supports the trial court's decision.

See, State v. Warwick, 12th Dist. Preble No. CA2017-01-001,

, ¶ 31

{¶74} Assuming for the sake of argument that the prosecutor's remarks were

improper, appellant has not demonstrated prejudice. It is well-established that pursuant

to R.C. 2929.12(A), the trial court may consider “any relevant factors in imposing a

sentence.” State v. Hurst, 12th Dist. Brown No. CA2014-02-004,

,

citing State v. Birt, 12th Dist. Butler No. CA2012–02–031, 2013–Ohio–1379, ¶ 64. The

trial court expressly stated on the record that it formulated the sentence based upon the

P.S.I. and appellant’s history of violence as documented therein, and appellant has not

pointed to anything in the record that would suggest that the trial court relied on the

prosecutor's statements when it sentenced her. State v. Reed, 9th Dist. Medina No.

11CA0080-M,

, citing State v. Dennis,

(1997)

[The trial court is presumed to consider “only the relevant, material, and competent

evidence in arriving at a judgment, unless the contrary affirmatively appears from the

record.”].

{¶75} Appellant does not dispute any of the convictions identified by the trial court

during the sentencing hearing or in the P.S.I., nor does she claim that her sentence is

contrary to law.

. We are thus unable to find that the

statements reach the level of plain error and prosecutorial misconduct. State v. Snyder, Muskingum County, Case No. CT2018-0006 26

3rd Dist. Seneca No. 13-12-38,

, citing State v. Combs,

, 283 *** (1991) [finding that the prosecutor's “gross speculation” was improper

but that it did not rise to the level of plain error since the statement did not make a “crucial

difference”]. See also, State v. Thompson, 11th Dist. Geauga No. 1378,

,

*3 [“The court made it clear that it was imposing punishment only for the crime with which

appellant had been charged * * * and did not improperly impose a sentence longer than

that sentence recommended by the parties].

{¶76} Appellant’s fourth assignment of error is overruled.

CONCLUSION

{¶77} Appellant’s four assignments of error are overruled and the judgment of the

Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, Earle, J., concur.