STATE OF OHIO, Plаintiff-Appellee, vs. JEFFERY A. LEFFINGWELL, Defendant-Appellant.
Case No. 12CA1
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
4-2-13
2013-Ohio-1421
Abele, J.
COUNSEL FOR APPELLANT: Brian A. Smith, 503 West Park Avenue, Barberton, Ohio 442031
COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney, Lawrence County Courthouse, One Veterans Square, Ironton, Ohio 45638
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-2-13
Abele, J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment of conviction and sentence. A jury found Jeffery A. Leffingwell, defendant below and appellant herein, guilty of burglary in violation of
FIRST ASSIGNMENT OF ERROR:
“APPELLANT‘S CONVICTION FOR BURGLARY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT‘S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED THE OBJECTIONS OF APPELLANT TO THE STATE‘S QUESTIONING OF ITS WITNESS, CHELSA WATKINS, AS LEADING.”
FOURTH ASSIGNMENT OF ERROR:
“APPELLANT‘S SENTENCE WAS AN ABUSE OF DISCRETION.”
FIFTH ASSIGNMENT OF ERROR:
“THE COURT ERRED WHEN IT FAILED TO IMPOSE POST-RELEASE CONTROL AS REQUIRED BY THE OHIO STATUTES.”
{¶ 2} On May 7, 2011, Kevin McWhorter went fishing and returned home around 2:30 AM on May 8th. McWhorter watched television for about half an hour, then went to bed. When McWhorter awoke later that morning, he found that his home had been brokеn into and a number of items had been stolen including, inter alia, an X Box game console, several X-Box games, his wallet, a watch and a ring.
{¶ 3} Appellant, whose grandmother lives several houses away from the victim, celebrated his twenty-fifth (25th) birthday on the day of the robbery. His on-again/off-again girlfriend, Chelsa Watkins, characterized him that day as being particularly happy and, when asked why, said it was because he had some money. Appellant also sold to Watkins a ring,
{¶ 4} On August 29, 2011, the Lawrence County Grand Jury returned an indictment that charged appellant with burglary. Appellant pled not guilty and the matter proceeded to a jury trial. Chelsa Watkins, the State‘s primary witness, admitted at the outset that she was “not happy” to be there. Nevertheless, she described how appellant sold to her the stolen goods and that appellant admitted that he had entered the victim‘s home when the victim was asleep. A recording of her statement further revealed that she was concerned that appellant might even target her own family for theft offenses in the future.
{¶ 5} After hearing the evidence, the jury returned a guilty verdict. The next day, the trial court sentenced appellant to sеrve a definite term of eight years in prison. This appeal followed.
I
{¶ 6} We first consider, out of order, appellant‘s second assignment of error wherein he
{¶ 7} Our analysis begins with the well-settled proposition that when reviewing for thе sufficiency of evidence, appellate courts look to the adequacy of the evidence and whether such evidence, if believed by the trier of fact, supports a finding of guilt beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). In other words, after viewing the evidence, and each inference that can reasonably drawn therefrom in a light most favorable to the prosecution, could any rational trier of fact have found all essential elements of the offense beyond a reasonable doubt? See State v. Were, 118 Ohio St.3d 448, 890 N.E.2d 263, 2008-Ohio-2762; at ¶132; State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, at ¶34.
{¶ 8}
{¶ 9} Appellant counter-argues the State‘s evidence “was limited primarily to circumstantial evidence.” However, even if we accept appellant‘s argument, we note that in a criminal case no distinction is made between circumstantial evidence and direct evidence. State v. Blackshear, 5th Dist. App. No. 2012-CA-84, 2013-Ohio-77, at ¶43; State v. DiBiase, 11th Dist. No. No. 2011-L-124, 2012-Ohio-6125; State v. Moten, 2nd Dist. No. 2011CA37, 2012-Ohio-6046, at ¶43. In any event, whether the evidence adduced at trial was direct,
{¶ 10} Accordingly, we hereby overrule appellant‘s second assignment of error.
II
{¶ 11} We now turn to appellant‘s first assignment of error wherein appellant asserts that his conviction is against the manifest weight of the evidence. Once again, we disagree with appellant.
{¶ 12} Generally, a reviewing court will not reverse а criminal conviction on grounds that the conviction is against manifest weight of the evidence unless it is obvious that the jury clearly lost its way and created such a manifest miscarriage of justice that reversal of the judgment and a new trial are required. See e.g. State v. Earle, 120 Ohio App.3d 457, 473, 698 N.E.2d 440 (11th Dist. 1997); State v. Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814 (4th Dist. 1995); State v. Daniels, 4th Dist. No. 11CA3423, 2011-Ohio-5603, at ¶22. If substantial, competent, evidencе is adduced at trial upon which a trier of fact could reasonably conclude that all elements of the offense have been proven beyond a reasonable doubt, the conviction is supported by the manifest weight of the evidence. State v. Johnson (1991), 58 Ohio St.3d 40, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304.
{¶ 13} The gist of appellant‘s argument is that too many inconsistenciеs exist in Chelsa‘s testimony and in her statements for her to be considered a credible witness.2 It is axiomatic
{¶ 14} In the case sub judice, it is apparent that the jury, sitting аs the trier of fact, found Watkins’ testimony, and her statements to authorities, to be credible. We recognize that some inconsistencies exist with regard to Watkins’ testimony and previous statements. Nevertheless, the jury, sitting as the trier of fact, had to opportunity to take those matters into consideration prior to reaching its verdict. We will not second-guess that determination on appeal.
{¶ 15} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s first assignment of error.
III
{¶ 16} In his third assignment of error, appellant asserts that the trial court erred when it permitted the State to ask Chelsa “leading questions.” Our review of the transcript shows that
{¶ 17} Our analysis begins by noting that generally leading questions should not be used on the direct examination of a witness. Evid.R. 611(C). The decision to allow leading questions on direct examination, however, is in the sound discretion of the trial court. State v. Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038, 2006-Ohio-5084, ¶138. In addition, trial court judges enjoy broad discretiоn in the manner by which they conduct proceedings in their courtrooms. State v. Malloy, 2nd Dist. No. 11CA21, 2012-Ohio-2664, at ¶23; State v. Messer, 12th Dist. No. CA2004-03-020, 2005-Ohio-2501, at ¶14. Similarly, trial courts have discretion in the manner by which they allow the questioning of witnesses. See generally In re Kister, 194 Ohio App.3d 270, 2011-Ohio-2678, 955 N.E.2d 1029, at ¶¶48-49; State v. Schandel, 7th Dist. No. 07-CA-848, 2008-Ohio-6359, at ¶71. Thus, a court‘s decision on such matters will not be reversed absent an abuse of that discretion. Generally, an abuse of discretion mеans more than an error of law or judgment; rather, it implies that the trial court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994); State v. Moreland, 50 Ohio St.3d 58, 61, 552 N.E.2d 894 (1990). In reviewing for an abuse of discretion, appellate courts must not substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
{¶ 18} Chelsa Watkins admitted at the outset of her testimony that she was “not happy”
{¶ 19} Furthermore, even if we assume, arguendo, that the trial court erred by not ruling on one objection, or in overruling another objection, we believe such alleged errоrs constitute harmless error. See Crim.R. 52(A). Our review reveals that the remainder of Chelsea‘s testimony, as well as her audio taped statements to investigators, incriminated appellant and provided details of the events.
{¶ 20} Accordingly, based upon the foregoing reasons we hereby overrule appellant‘s third assignmеnt of error.
IV
{¶ 21} In his fourth assignment of error, appellant asserts that the trial court abused its discretion by sentencing him to serve eight years in prison.
{¶ 22} Appellate review of criminal sentences typically involves a two step process. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124; State v. Pearson, 4th Dist. No. 10CA17, 2011-Ohio-5910, at ¶5. First, an appellate court will determine whether the trial court
{¶ 23} Appellant makes no argument under the first part of Kalish, but rather directs his argument to the second step and argues that the trial court abused its discretion in meting out an eight year term of imprisonment.
{¶ 24} Our review of the record in the case at bar indicates that appellant has a priоr criminal background. Moreover, the transcript of the December 21, 2011 sentencing hearing reveals that appellant continued to deny that he was responsible for the burglary and a failed to display “genuine remorse.” These are all factors that the trial court may consider for purposes of gauging the likеlihood of recidivism when considering what penalty to impose.
{¶ 25} The trial court did not expressly cite any of these factors as justification for its decision to impose the sentence, but then again, neither is it required to do so. Still, the court may well have considered these factors when it determined the appropriate prison term to impose. In any event, having reviewed the record ourselves, we cannot conclude that the prison sentence the trial court imposed is arbitrary, unreasonable or unconscionable.
V
{¶ 27} In his fifth assignment of error, appellant asserts that the trial court erred when it imposed post-release control. In particular, appellant contends that the trial court did not inform him at his sentencing hearing of the consequences should he violate post-release control. The State offers no rebuttal to this argument and, after we reviewed the sentencing hearing transcript, we agree that the trial court erred in this respect.
{¶ 2} Indeed, the transcript indicates that court held two separate hearings hеld on December 21, 2011. No mention was made of post-release control during the first hearing. A second hearing was apparently held shortly thereafter, wherein the court went on the record to inform appellant that he would be subject to post-release control once out of prison. The transcriрt does not show, however, that the court informed him of what might happen should he violate that sanction.
{¶ 1}
{¶ 2} We parenthetically note that the sentencing entry does, in fact, provide notice of the consequences for violating post-release control. But, as mentioned above, the warning must also be given at the sentencing hearing. Accordingly, based upon the foregoing reasons we sustain appellаnt‘s fifth assignment of error.
{¶ 3} Therefore, we hereby affirm the trial court‘s judgment of conviction, but reverse and remand for the limited purpose of correcting appellant‘s sentence.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND THE CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered the judgment be affirmed in part, reversed in part and the case be remanded for further proceedings consistent with this oрinion. Appellant to recover of appellee the 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 Lawrence County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proсeedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supremе Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutеs a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.