State v. BraswellState v. Braswell
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Nicole I. Khoury, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Aрpellant, Mydrell Braswell (also known as Homer Smith), appeals a judgment of the Lucas County Court of Common Pleas convicting him of the offense of burglary, a violation of
{¶ 2} Appellant‘s counsеl filed an appellant‘s brief on his behalf but has also requested leave of court to withdraw as counsel in this appeal, pursuant to the procedure
{¶ 3} Where these requirements are met, an appellate court must conduct а full examination of the proceedings to determine whether the appeal is wholly frivolous. Id. Where the court concludes that the appeal is wholly frivolous, it may grant the motion to withdraw and dismiss the appeal. Id.
{¶ 4} Counsel for appellant has presented two potential grounds for appeal: that the evidence at trial was insufficient to support a guilty verdict and that the verdict was against the manifest weight of the evidence. We consider the issue of the sufficiency of the evidence to support a conviction first.
{¶ 5} A challenge to a conviction based upon a claim of insufficiency of the evidence presents a question of law on whether the evidence at trial is legally adequate to support a jury verdiсt on all elements of a crime. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. An appellate court does not weigh credibility when reviewing the sufficiency of evidence to support a verdict. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of syllabus. A rеviewing court considers whether the evidence at trial “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.” Id.
{¶ 6} Appellant‘s conviction is based upon a burglary at the apartment of Raymond Hordak, Jr. on or about November 12, 2007. Hordak testified at trial that he left his apartment in the aftеrnoon of November 11, 2007, and returned the next day. He testified that when he returned he found the apartment in a “shambles.” When he entered the apartment, “everything was on the floor.” His television аnd stereo were missing. A coin collection and money were gone.
{¶ 7} He found that, in his absence, an exterior screen to a bedroom window had been cut from top to bottom -- abоut one and one-half feet in length. A police investigation led to the discovery of latent fingerprints on the inside of the window glass at the bottom and side of the window. Detective Scott Smith of thе Toledo Police Department testified that the prints matched fingerprints taken from the middle and ring fingers of appellant‘s left hand.
{¶ 8} Hordak testified that he did not know the appellant and that he kept the window and apartment locked. Hordak had allowed few, other than his sister, to enter his
{¶ 9} There were no witnesses to the burglary. Counsel for appellant identified the issue of sufficiency of the evidence as a potential issue for appeal due to the state‘s reliance on fingerprint evidence to prove appellant‘s guilt at trial.
{¶ 10} The Supreme Court of Ohio considered challenges to the sufficiency of the evidence to support convictions based largely or exclusively on fingerprint evidence in State v. Miller (1977), 49 Ohio St.2d 198. The court outlined the analysis required:
{¶ 11} “In determining the sufficiency of the fingerprint evidence, a reviewing court must examine this evidence on a case-by-case basis. The crucial issue is whether attendant circumstances, such as the location of the accused‘s alleged fingerprint, the сharacter of the premises where the print was found, and the accessibility of the general public to the object on which the print was impressed are sufficient to justify the trier of fact to conclude not only that the accused was at the scene of the crime when it was committed, but also that the accused was the criminal agent.” Id. at 202-03.
{¶ 12} The standard for the sufficiency of such evidence to support a conviction is set forth in the syllabus to the opinion:
{¶ 13} “Fingerprints corresponding to those of the accused are sufficient proof of this identity to sustain his сonviction, where the circumstances show that such prints, found at the scene of the crime, could only have been impressed at the time of the commission of the crime.” Id. at syllabus.
{¶ 15} The circumstances presented here also involve a residential apartment with restricted access to the public. Raymond Hordak had resided in the apartment ten years before the burglary and had never met the appellant. Hordak never allowed appellant access to the apartment.
{¶ 16} Construing the evidence most favorably to the state, a trier of fact could reasonably conclude that access to the apartment for the burglary was gained through a bеdroom window to the apartment. Hordak testified that he left the apartment locked before the burglary. The exterior screen to the bedroom window was found after the burglary to havе been cut one and one-half feet in length. Appellant‘s fingerprints were found on the interior surface of the window glass to that window.
{¶ 17} Under such an analysis, a rational factfinder could conclude that the fingerprints were located on a fixed object directly related to the crime – the window
{¶ 18} Where it is claimed that a verdict is against the manifest weight of the evidence, an appellate court acts as a “thirteenth juror,” reweighs the evidence, аnd may disagree with a factfinder‘s conclusions on conflicting testimony. Thompkins at 387; State v. Lee, 6th Dist. No. L-06-1384, 2008-Ohio-253, ¶ 12. “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the сredibility 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 revеrsed and new trial ordered.” Thompkins at 387, quoting with approval, State v. Martin (1983), 20 Ohio App.3d 172, 175. Reversals on this ground are granted “only in the exceptional case in which the evidence weighs heavily against conviction.” Id.
{¶ 19} We have reviewed the record and find no manifest miscarriage of justice in appellant‘s conviction for burglary.
{¶ 20} We conclude that no meritorious issue for appeal is presented in the potential issues raised by appellant‘s counsel in his Anders brief. We have conducted our
{¶ 21} On consideration whereof, this court finds that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
State v. Braswell
C.A. No. L-08-1405
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Richard W. Knepper, J. JUDGE
CONCUR. _______________________________
JUDGE
Judge Richard W. Knepper, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.