[Cite as State v. Smith, 2014-Ohio-4945.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                   No. 14AP-240
v.                                                :            (C.P.C. No. 12CR-1600)

Star C. Smith,                                    :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                    Rendered on November 6, 2014



                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 Yeura R. Venters, Public Defender, and David L. Strait, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

O'GRADY, J.

        {¶ 1} Defendant-appellant, Star C. Smith, appeals from a judgment of conviction
and sentence entered by the Franklin County Court of Common Pleas. For the following
reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On March 29, 2012, appellant was indicted on two counts of failure to
appear on recognizance bond, in violation of R.C. 2937.29 and 2937.99, both felonies of
the fourth degree. A jury trial was conducted on count one, and, pursuant to the state's
request, the court entered a nolle prosequi for count two.
No. 14AP-240                                                                                2


       {¶ 3} At the beginning of trial, the following stipulation was entered by the parties
and read to the jury:
              Star Smith was released on a recognizance bond on Franklin
              County Court of Common Pleas Case 12CR-804. She was
              charged with a felony. While being out on said recognizance
              her case was set for trial on March 26, 2012, at 9:00 a.m.
              before Judge Kimberly Cocroft in courtroom 4E. She received
              notice and was aware of her scheduled trial date.

(Tr. Vol. I, 24.) The following facts were adduced at trial.
       {¶ 4} Appellant testified she was anxious about her trial date and could not sleep
the night before. She eventually fell asleep at 7:00 a.m. that morning. Appellant's alarm
clock was set for 7:35 a.m.; she slept through it and missed multiple phone calls.        She
woke up at approximately 10:00 a.m. and contacted the bailiff, who advised her to call her
attorney for further assistance. Appellant's attorney told her to turn herself in to the jail.
She attempted to do so, but the jail staff was not aware of a warrant for her arrest.
Appellant testified she spoke with her attorney again, and he advised her to appear in
court the next morning, which she did. The case did not proceed.
       {¶ 5} Amy Flowers was Judge Cocroft's bailiff on March 26, 2012, when
appellant's case was set for trial. Ms. Flowers testified that the case had been continued
numerous times, but the parties knew March 26, 2012 was a "for-sure" trial date. (Tr. Vol.
I, 27.) Trial was set to begin at 9:00 a.m. The assistant prosecutor, defense attorney,
judge, and court staff were all present and ready to proceed, but appellant was not. Judge
Cocroft determined the trial could not go forward. Ms. Flowers remembered receiving
telephone calls from both appellant and her defense attorney later in the day on
March 26, 2012, but she could not recall the explanation either gave for appellant's
absence. Ms. Flowers added that appellant appeared in court the next day, but the trial
could not proceed at that time. Upon cross-examination, Ms. Flowers testified that, to her
knowledge, appellant was present on all of the past trial dates that were continued.
       {¶ 6} The jury found appellant guilty of failure to appear as charged in the
indictment, and the trial court sentenced appellant accordingly. We granted appellant's
request for leave to appeal from the trial court's decision.
II. ASSIGNMENTS OF ERROR
No. 14AP-240                                                                                  3


       {¶ 7} Appellant raises two assignments of error for us to review:
              [I.] The judgment of the trial court is not supported by
              sufficient, credible evidence.

              [II.] The judgment of the trial court is against the manifest
              weight of the evidence.

III. DISCUSSION
       {¶ 8} We consider appellant's assignments of error together for ease of
discussion. Under her two assignments of error, appellant argues her conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence
produced at trial. We disagree.
       {¶ 9} "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
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. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus, superseded by constitutional amendment on other grounds as
recognized in State v. Smith, 80 Ohio St.3d 89, 102 (1997).
       {¶ 10} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25,
citing Thompkins at 386-87. "When a court of appeals reverses a judgment of a trial court
on the basis that the verdict is against the weight of the evidence, the appellate court sits
as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting
testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). " 'The
court, 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 reversed and a new trial ordered.' " Id., quoting State v.
No. 14AP-240                                                                                                4


Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.' " Id., quoting Martin at 175.
          {¶ 11} R.C. 2937.99, failure to appear, provides in relevant part:
                 (A) No person shall fail to appear as required, after having
                 been released pursuant to section 2937.29 of the Revised
                 Code. Whoever violates this section is guilty of failure to
                 appear and shall be punished as set forth in division (B) or (C)
                 of this section.

                 (B) If the release was in connection with a felony charge or
                 pending appeal after conviction of a felony, failure to appear is
                 a felony of the fourth degree.

          {¶ 12} In order to prove appellant failed to appear, the prosecution was required to
show: (1) appellant was released on her own recognizance, and (2) recklessly1 failed to
appear at her required court proceeding. State v. Hicks, 4th Dist. No. 08CA6, 2009-Ohio-
3115, ¶ 31-32; State v. Treft, 6th Dist. No. WD-07-085, 2009-Ohio-1127, ¶ 25-27.
"Recklessness" is defined in R.C. 2901.22(C), which states: "A person acts recklessly
when, with heedless indifference to the consequences, he perversely disregards a known
risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.
A person is reckless with respect to circumstances when, with heedless indifference to the
consequences, he perversely disregards a known risk that such circumstances are likely to
exist."
          {¶ 13} While appellant concedes she failed to appear, she contends she did not act
recklessly by missing her court date. We disagree. Appellant had notice of her trial date
and time. She knew her trial would go forward on that day. The jury had no obligation to
believe appellant's testimony that she slept through her alarm clock and missed multiple
phone calls. Even if the jury believed her testimony, the jury still could have found
appellant acted recklessly when, after not sleeping all night, she allowed herself to fall
asleep just prior to the time she needed to prepare for court. Viewing the evidence in a
light most favorable to the state, the evidence was sufficient to justify appellant's

1Although the statute does not specify a culpable mental state for this crime, recklessness is the appropriate
standard. R.C. 2901.22(B).
No. 14AP-240                                                                               5


conviction. Further, we cannot find that the jury, as the trier of fact, clearly lost its way
and created such a manifest miscarriage of justice that appellant's conviction must be
reversed and a new trial granted. See State v. Platz, 4th Dist. No. 00CA36, 2001-Ohio-
2541 (affirming failure to appear conviction because jury obviously gave little weight to
defendant's explanations, such as his assumption that his attorney obtained a
continuance, and health problems, which was within the jury's province).
       {¶ 14} Accordingly, having concluded that appellant's conviction is supported by
sufficient evidence and is not against the manifest weight of the evidence, we overrule
appellant's first and second assignments of error.
IV. CONCLUSION
       {¶ 15} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                           KLATT and DORRIAN, JJ., concur.

DORRIAN, J., concurring.

       {¶ 16} Appellant presented evidence that she contacted the bailiff and her attorney
upon waking and realizing she missed court. She also presented evidence that she tried to
turn herself into jail, but the jail had no record of a warrant. She also appeared in court
the very next day and had no prior history of non-appearance on trial dates previously
scheduled for this case. While these circumstances certainly suggest that appellant was
not acting recklessly when she failed to appear, given the deference this court must give to
the jury, I cannot say that the verdict was against the manifest weight of the evidence.
Therefore, I concur with the majority and would affirm.


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