[Cite as State v. Lewis, 2011-Ohio-5392.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96234




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     CAMERON LEWIS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-537874

        BEFORE: Rocco, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: October 20, 2011

                                               -i-
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ATTORNEY FOR APPELLANT

John T. Castele
1310 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Erica Barnhill
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Cameron Lewis appeals from his conviction for

aggravated theft. Upon a review of the record, we affirm.

      {¶ 2} On June 11, 2010, appellant was indicted on one count of burglary in

violation of R.C. 2911.12(A)(1); one count of intimidation of a crime victim or witness in

violation of R.C. 2921.04(B); and one count of theft in violation of R.C. 2913.02(A)(1).

Appellant pled not guilty to the indictment. Prior to the commencement of trial, the state

dismissed the intimidation charge and appellant waived his right to a jury trial. The case

proceeded to a bench trial on November 3, 2010.
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         {¶ 3} Angela Allen testified that on April 27, 2010, she resided in an apartment

located at East 71st Street and Park Avenue with her husband, Preston Allen, her ten

year-old son, David Anderson, and her fourteen year-old daughter.           On that day a

recently purchased flat-screen television was located in the living room of her apartment.

Angela explained that during the early morning hours of the day in question, she went to

sleep following an overnight visit to the hospital.       Before retiring, she gave David

permission to play with a friend down the street. She directed him to lock the door on

his way out. Angela then went to bed after taking a prescription drug to assist her with

sleep.    Her husband also slept nearby.

         {¶ 4} When Angela awoke, she noticed that the television was missing.          She

testified that she did not grant anybody permission to come into her home that day or to

take the television.

         {¶ 5} Angela’s son, David, testified next.   He confirmed that on April 27, 2010,

he returned home from being at the hospital with his mother and stepfather and that he

asked whether he could visit a friend down the street.

         {¶ 6} Later at his friend’s house, the friend’s uncle Jeff told David and his young

friend to clean the garage.   Also at the friend’s house at the time were the appellant and

a pregnant girl, whose name was unknown to David.        Later   while cleaning the garage,

David’s pants became wet, which prompted him to return home to change his clothes.
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         {¶ 7} As David was walking near his home, he witnessed appellant carrying the

flat-screen television covered with a white sheet.     David’s testimony was unclear as to

whether he saw appellant carrying the television before or after he had    changed his wet

pants; whether he saw appellant leaving David’s home or merely on the street carrying the

television; and as to the level of involvement of Jeff and the pregnant girl. David’s

testimony, nonetheless, was clear and unwavering that appellant was the individual he

saw carrying the television on the day in question.

         {¶ 8} David further testified, and Detective Joel Campbell confirmed, that he

positively identified appellant in a photo array as the individual carrying the flat-screen

television.

         {¶ 9} Finally, David testified that the day prior to this incident, Jeff was at

David’s house with David’s stepfather and Jeff observed the new flat-screen television in

the living room.

         {¶ 10} Based upon the aforementioned evidence, the trial court found appellant not

guilty of burglary, but guilty of aggravated theft.   The court later sentenced appellant on

November 30, 2010, to one year of community control sanctions.

         {¶ 11} Appellant now appeals his conviction with the following assignment of

error:

         “I. The defendant’s conviction was against the manifest weight of the

         evidence.”
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       {¶ 12} Appellant argues in his sole assignment of error that his conviction for

aggravated theft is not supported by the manifest weight of the evidence. We find that

appellant’s argument is without merit.

       {¶ 13} In considering a challenge to the manifest weight of the evidence, the

reviewing court examines the entire record, weighs the evidence and all reasonable

inferences, 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 judgment

must be reversed.    State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d

229, ¶81. The discretionary power to grant a new hearing should be exercised only in the

exceptional case in which the evidence weighs heavily against the judgment. State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Moreover, this court

must remain mindful that the weight of the evidence and the credibility of the witnesses

are matters primarily for the trier of fact to assess. State v. DeHass (1967), 10 Ohio

St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.

       {¶ 14} Upon review of the record, we cannot conclude that the trial court lost its

way.   The evidence demonstrated that appellant knowingly obtained control of the

television without the consent of the owners. Angela testified that she purchased a

flat-screen television for $600. When she went to sleep that morning the television was

present in her living room.   When she awoke later that morning, she discovered that her
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new television was missing, and she had not authorized or invited anyone other than her

family in her home on the day in question.

      {¶ 15} David testified that he saw appellant walking down the street with a flat-

screen television covered by a white sheet.    Admittedly, the testimony of the ten year-old

boy was unclear on certain points. David’s testimony, however, identifying appellant as

the individual carrying the television was clear and unwavering.      Furthermore, the trial

court, which is in a better position to determine witness credibility, believed David’s

testimony in this regard. Keeping in mind that the weight of the evidence and the

credibility of the witnesses are matters primarily for the trier of fact to assess, we find

appellant’s conviction for aggravated theft is not against the manifest weight of the

evidence.   See State v. DeHass, supra.

      It is ordered that appellee recover from 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

Rule 27 of the Rules of Appellate Procedure.


______________________________
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KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
