State v. ColegroveState v. Colegrove
{¶1} Appellant, Jamar Colegrove, appeals his robbery conviction claiming it is unsupported by sufficient evidence, against the manifest weight of the evidence, and the court improperly allowed other acts evidence to taint his trial. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} An indictment was filed on March 13, 2014, charging appellant with two counts of robbery — violations of
{¶3} On August 11, 2014, after a jury waiver was executed, a bench trial commenced. There, Hancock, Sampson, and a number of police officers testified. At the close of the state‘s case, the trial court granted appellant‘s
I. The trial court erred in denying Appellant‘s motion for acquittal as to the charge when the state failed to present sufficient evidence to sustain a conviction.
II. Appellant‘s conviction is against the manifest weight of the evidence.
III. The trial court erred when it admitted other acts testimony in violation of
R.C. 2945.59 ,Evid.R. 404(B) and Appellant‘s rights under Article I, Section 10 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.
II. Law and Analysis
A. Sufficiency
{¶4} Appellant first argues his robbery conviction is not supported by sufficient evidence and, therefore, the court erred in denying his
{¶5} A
{¶6} The state has the burden of proving each element of a charged offense. A claim that a conviction is unsupported by sufficient evidence tests whether the state has met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). This court must determine “‘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.‘” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25.
{¶7} In support of its case, the state presented the testimony of Dale Hancock. He testified that he dated appellant‘s mother for a short period of time before July 28, 2013, but had known her for many years. Hancock stated appellant had argued with him about the romantic relationship that existed between Hancock and appellant‘s mother. In
{¶8} A woman stopped her car and shouted at the two males to stop beating Hancock. Someone also called 911 and reported that three men were beating up an individual at the corner of Bellaire and Guardian. According to Hancock, appellant and the other male then walked away. Hancock remained on the ground and waited for police and emergency personnel to arrive. He was transported to Lakewood Hospital and treated for multiple contusions to his head and body.
{¶9} Hancock‘s testimony clearly establishes a violation of
B. Manifest Weight
{¶10} In contrast to a challenge based on sufficiency of the evidence, a manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion rather than production. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When considering a claim that a conviction is against the manifest weight of the evidence, this court sits as a “thirteenth juror” and may disagree “with the factfinder‘s resolution of conflicting testimony.” Thompkins at 387. The weight-of-the-evidence standard “addresses the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387.
{¶11} This court reviews the entire record, weighs the evidence and all reasonable inferences, considers the witnesses’ credibility 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. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In conducting such a review, this court remains mindful that the credibility of the witnesses are primarily for the trier of fact to assess. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to make credibility determinations because this court cannot view the demeanor of a witness while testifying. Therefore, the trier of fact is in the best position to determine if the proffered testimony is credible. State v. Holloway, 8th Dist. Cuyahoga No. 101289, 2015-Ohio-1015, ¶ 42, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26. Reversal on manifest weight grounds is reserved for the “‘exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins at 387, quoting Martin at 175.
{¶12} Appellant claims there is no evidence of robbery because Hancock‘s testimony is unbelievable, contradicted by other evidence, and wholly unreliable.
{¶13} First, appellant argues that Hancock‘s criminal history casts doubt on the veracity of his testimony. Hancock does indeed have a lengthy criminal history that was explored on cross-examination. Nothing in that history would lead this court to conclude
{¶14} Even if he attacked Hancock, appellant argues that the only evidence that he took anything from Hancock was concocted by Hancock long after the attack. He claims, pointing to the medical records generated by Lakewood Hospital, that Hancock did not inform anyone there that he had been robbed.
{¶15} The medical records admitted as evidence at trial include a narrative describing the events that caused Hancock to need treatment. This intake narrative includes a statement that Hancock had been beaten and his “cast” stolen. Because Hancock did not have a cast, it is likely that Hancock indicated his “cash” was stolen and the person dictating the narrative misunderstood the word as “cast” or a clerical error occurred. Even if the statement was accurately recorded, it is still a statement that property was taken. In any event, Hancock testified he told hospital personnel he had been beaten and robbed.
{¶16} The medical records also indicated that Hancock told medical personnel that he was hit with a rock or brick. This account conflicts with his trial testimony where he said he was punched, kicked, and stomped. The police report that was used on cross-examination also indicated that Hancock reported to police that he was pulled from his bike by the two attackers. This also conflicts with his trial testimony where he stated that he was walking with his bike because it had a flat tire.
{¶17} These inconsistencies, however, do not cast serious doubt on appellant‘s role in the beating and robbery of Hancock. The important aspects of Hancock‘s testimony remained largely consistent over time, including the identity of appellant as one of his attackers. Appellant‘s conviction for robbery is not against the manifest weight of the evidence.
C. Other Acts Evidence
{¶18} Appellant finally claims that the court erred in allowing the state to elicit improper other acts testimony that prejudiced him and created an unjust result.
{¶19} The complained of evidence largely consists of jail-house recordings of phone conversations appellant had with his brother and Hancock‘s testimony that appellant‘s brother attempted to prevent him from testifying. Monique Sampson also testified to being contacted by people claiming to be appellant‘s family members and being pressured not to testify against him but that she did not feel intimidated.
{¶20} This is not other acts evidence. With limited exception outlined in the rule,
{¶21} Further, acts committed by appellant‘s brother or other family members to suppress witness testimony are admissible against appellant. State v. Williams, 8th Dist. Cuyahoga No. 89461, 2008-Ohio-1948, ¶ 25 (“Attempts by persons other than the accused to suppress evidence is admissible against the accused where the accused is connected to such attempts.“). Here, appellant made jailhouse phone calls where he asked others to attempt to influence the testimony of victims in the criminal case. Appellant can fairly be said to be connected to attempts made to influence the witnesses against him. Therefore, the complained of evidence does not qualify as prohibited
{¶22} The only argument left is that the court improperly admitted or allowed Hancock‘s testimony that appellant‘s whole family is “wild.” Hancock testified “they are all wild, his whole family. It‘s ridiculous. They are all the same. They are all just
{¶23} The question, when read in context, was not designed to elicit improper testimony. The state did not draw attention to the answer or comment on it. There is also no suggestion in the record that the court considered this improper comment when rendering its decision. Appellant has not rebutted the above presumption that the court considers only proper evidence. See State v. Campbell, 8th Dist. Cuyahoga Nos. 100246 and 100247, 2014-Ohio-2181, ¶ 20-23.
{¶24} Appellant‘s third assignment of error is overruled.
III. Conclusion
{¶25} Appellant‘s robbery conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. Appellant‘s acts and evidence related to
{¶26} Judgment affirmed.
{¶27} It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR