State v. JacksonState v. Jackson
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 08CR161.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Thomas Strauss, Prosecuting Attorney, Attorney Michael Calabria, Assistant Prosecuting Attorney, 16001 State Route Seven, Steubenville, Ohio 43952
For Defendant-Appellant: Attorney Eric Reszke, Suite 810, Sinclair Building, Steubenville, Ohio 43952
Dated: December 2, 2009
¶{1} Defendant-appellant Sheldon Jackson appeals from his conviction in the Jefferson County Common Pleas Court of burglary, a violation of
STATEMENT OF THE FACTS AND CASE
¶{2} On September 22, 2008, at around 5:00 a.m., Sheldon Jackson allegedly burglarized Judith Davis’ home located on 28 Township Road 281, Lot 20, Steubenville, Jefferson County, Ohio. Davis called 911 after the alleged burglary and identified Jackson, her neighbor, as the intruder. The two deputies that responded to the call arrested Jackson that morning at his home.
¶{3} As a result of the occurrences that allegedly happened that morning, Jackson was indicted for burglary, a violation of
¶{4} Following trial, the court proceeded to sentencing. Jackson received 15 months for the burglary conviction and 12 months for each of the assault convictions. The sentences for the assault convictions were ordered to be served concurrent to each other. The sentence for the burglary conviction was ordered to be served consecutive to the sentences for the assault convictions. Accordingly, Jackson received an aggregate sentence of 27 months.
¶{5} Jackson timely appeals from the jury conviction for burglary; the convictions and sentences for the assaults on a police officer are not appealed.
¶{6} “THE JURY VERDICT OF GUILTY FOR THE OFFENSE OF BURGLARY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
¶{7} Weight of the evidence deals with the inclination of the greater amount of credible evidence to support one side of the issue over the other. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In reviewing a manifest weight of the evidence argument, the reviewing court examines 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 trial court clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. That said, determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
¶{8} A reversal on weight of the evidence is ordered only in exceptional circumstances. Thompkins, 78 Ohio St.3d at 387.
¶{9} Jackson was convicted of burglary, a violation of
¶{10} “(A) No person, by force, stealth, or deception, shall do any of the following:
¶{11} “* * *
¶{12} “4) Trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.”
¶{13} Jackson‘s argument focuses on the fact that there was no physical evidence recovered from the scene, such as DNA, fingerprints or footprints; and that Davis was allegedly not credible because some of her trial testimony conflicted with the testimony she offered at the preliminary hearing.
¶{14} It is true that no physical evidence was recovered from the scene. Deputy Christopher Papendry explained that physical evidence could not be collected because there was “contamination” throughout the residence. For instance, Davis herself had touched light switches and door knobs after Jackson had allegedly touched them. (Tr. 120). Furthermore, there were no apparent footprints. (Tr. 120).
¶{16} Davis’ identification of Jackson as the intruder and her testimony concerning what occurred that night establishes the elements of burglary. If her testimony is believed then the lack of fingerprints, DNA, footprints or any other type of physical evidence does not render the conviction against the manifest weight of the evidence.
¶{17} Jackson asserts Davis is not credible because there were inconsistencies between her preliminary hearing testimony and her trial testimony. During trial, the alleged discrepancies were brought to the attention of the jury. She admitted that at the preliminary hearing she testified that the gun she used was a 45 mm not a 9 mm. (Tr. 105). She also admitted that at the preliminary hearing she testified that after running out of the bedroom to the living room to get the gun she did not turn on any of the lights in the trailer. (Tr. 107). However, at the trial she testified
¶{18} Jackson appears to believe that these minor discrepancies show her testimony to not be credible. We disagree. The trier of fact is free to believe or disbelieve all or any of the testimony. State v. Long (1998), 127 Ohio App.3d 328, 335. While it is true that under a manifest weight analysis we consider the credibility of the witnesses, it must be remembered that primarily witness credibility is left to the trier of fact, which in this case was the jury. Or in other words, although an appellate court must act as a “thirteenth juror” when considering whether the manifest weight of the evidence requires reversal, it must give great deference to the fact finder‘s determination of the witnesses’ credibility. State v. Deltoro, 7th Dist. No. 07MA90, 2008-Ohio-4815, ¶62. The jury saw the witness‘s demeanor, gestures and voice inflections, and, as such, is in the best position to determine witness credibility. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.
¶{19} Consequently, considering Davis’ testimony and the fact that the jury could believe any, part, or all of her testimony, we find that the decision is not against the manifest weight of the evidence. This assignment of error lacks merit.
¶{20} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.