[Cite as State v. Romine, 2011-Ohio-6774.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     PICKAWAY COUNTY

STATE OF OHIO,                                    :      Case No. 11CA1
                                                  :
        Plaintiff-Appellee,                       :
                                                  :      DECISION AND
        v.                                        :      JUDGMENT ENTRY
                                                  :
ALLEN W. ROMINE,                                  :
                                                  :      RELEASED 12/22/11

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Michael D. Hess, Circleville, Ohio, for appellant.

Judy C. Wolford, Pickaway County Prosecutor, and Matthew L. O’Leary, Pickaway
County Assistant Prosecutor, Circleville, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}    Following a jury trial, Allen Romine was convicted of complicity to burglary

and complicity to theft. The charges stemmed from an incident in which Romine, Sandy

Au Yeung, and two others purportedly went to the home of Ray Bean to steal a safe and

ultimately took three televisions. On appeal, Romine contends that his conviction for

complicity to burglary was against the manifest weight of the evidence because the

State failed to show that he purposely aided and abetted Au Yeung in committing

burglary. Romine contends that the jury lost its way in crediting witness testimony

connecting him to the crime. However, we leave credibility determinations to the finder

of fact. And because the jury could reasonably return a guilty verdict based on the

State’s version of events, we cannot say that the jury clearly lost its way and created

such a manifest miscarriage of justice that we must reverse the conviction.
Pickaway App. No. 11CA1                                                                     2


                                         I. Facts

       {¶2}   A grand jury indicted Romine on one count of complicity to burglary, a

third-degree felony, and one count of complicity to theft, a fifth-degree felony. Romine

pleaded not guilty to the charges, and the matter proceeded to a jury trial.

       {¶3}   Ray Bean testified that Heaven Smith lived with his family as a foster child

until around August 13, 2010 when a court sent her to live with her grandmother. On

August 22, Bean and his wife went to a car show. Bean’s adopted children and other

foster children were not home either. Bean told Smith about the car show before she

moved out. As they prepared to leave the show, an officer arrived and said Bean’s

home had been broken into. Bean testified that he kept his bedroom door locked, but

the door was kicked in and a television was missing. Bean testified that he had a safe

in his bedroom; however, he did not testify that the safe or its contents were missing.

He did testify that a television was missing from his son’s bedroom. In addition, a

$3,000, 250 pound, 65 inch plasma television was missing from the family room. Bean

testified that Romine came to his home once “sometime in the summer time” to “see

[Smith] or he was driving down the street and saw her or something.” Bean saw

Romine in the driveway talking to Smith and spoke to him for a few minutes.

       {¶4}   Officer Justin Kaszycki of the Ashville Police Department testified that on

August 22, 2010 he was on patrol with Officer Donald Mayse. As they drove near the

Bean residence, Kaszycki did not see any familiar vehicles in the driveway but instead

saw a black, two door Monte Carlo with the trunk open. He looked at the front door and

saw two white males wearing white tee shirts and black gym shorts carrying a large

television out of the house. Kaszycki found it suspicious that they were moving such a
Pickaway App. No. 11CA1                                                                      3


large television in a two door vehicle. Both men had brown hair and buzz cuts. One

man was facing Kaszycki and the other had his back to him. The man facing Kaszycki

had a surprised look on his face. Because of the distance and similar appearance of

the men, Kaszycki could not say whether Romine was the man facing him or not.

Kaszycki alerted Officer Mayse to the suspicious activity, and Mayse turned the cruiser

around. By the time they started to re-enter the roadway, the two men loaded the

television in the trunk (where it stuck out about three feet) and exited the driveway at a

“high rate of speed.” By the time they caught up to the vehicle, the men were gone.

Both doors were “wide open,” and the front seats were pushed forward. Kaszycki saw

two females “scatter around [a] house” – he apprehended one and Mayse apprehended

the other. He assumed the women were in the back seat based on the position of the

front seats.

       {¶5}    Officer Mayse testified that while on patrol, Kaszycki said he saw two men

carrying a television from the Bean residence and that it looked suspicious. Mayse

glanced back and saw two men carrying something but could not tell from his angle

what. He turned the cruiser around in a parking lot, but before he returned to the road

he saw a Chevy backing out of the driveway at a “very high rate of speed.” He also saw

something, which appeared to be a large television, hanging out of the trunk. By the

time he caught up to the vehicle, the occupants had already bailed out and left the car

running. Mayse saw a female to the right of the vehicle walking away briskly. He saw a

male and another female run behind a house. Mayse approached the walking female,

who he later identified as Au Yeung. He found a small weapon in the area where he

stopped her. Mayse noted the “grips were coming off of it.” Mayse testified that Officer
Pickaway App. No. 11CA1                                                                       4


David Woodie found the missing grip on Romine.

       {¶6}   Officer Woodie testified he responded to a call for a burglary in progress

and went to Mayse’s location. He saw a black, two door vehicle with no occupants. He

learned officers had two females in custody and started to search for two male

suspects. Woodie saw a man two houses east of where the alleged burglary occurred

wearing clothing that met the description of the suspects’ clothing, i.e. a white shirt and

dark colored shorts. Woodie identified the man as Romine. They made eye contact

and Romine started walking west while Woodie turned his cruiser around. By the time

Woodie made contact with Romine, he was walking on the sidewalk in front of the Bean

residence. Romine was sweating and breathing heavily as though he had been

running. Woodie asked Romine why he was running, and Romine said he “didn’t want

to get caught up with what the others were doing.” During a pat down search, Woodie

found a “side of a grip” from a small handgun on Romine and put him in the cruiser for

safety purposes. Woodie testified that Romine was not wearing gloves, and he did not

recall finding gloves in his pockets. Woodie testified that he later apprehended

Roderick Carmichael, who was hiding in a bush near the area he found Romine.

       {¶7}   Smith testified that she is 17 years old and spent six months as a foster

child living with the Beans. She moved out on August 10, 2010 but returned to “do the

robbery” with Au Yeung, Carmichael, and Romine. Smith testified that she is not related

to Au Yeung, but refers to her as “Aunt Sandy.” In addition, Smith testified that Romine

was Au Yeung’s boyfriend, and Carmichael was her mother’s boyfriend. According to

Smith, on the day of the incident she and Carmichael went to his grandmother’s house.

She called Romine and Au Yeung to see where they were. Romine said “I’ve got your
Pickaway App. No. 11CA1                                                                   5


cousin’s car and I’ll be there to pick you up.” Romine and Au Yeung picked up Smith

and Carmichael. Romine asked Smith if they were “still going to do it,” and she said

yes. Smith testified that she knew the Beans would be at a car show that day, so the

four went to their house to look for a safe. While Romine drove, he explained the plan.

Smith testified: “[Romine] said [Au Yeung] was going to go up and knock on the door,

and him and [Carmichael] was going to go in, and I said well, their son might be home.

And so, well I’ve got a gun and I’ll just show him the gun.” Smith stayed in the car.

Romine and Carmichael carried two small televisions, and as they carried a 55 inch flat

screen outside, officers went by, saw them, and did a u-turn. According to Smith, the

men got in the car, and they “took off.” They hit a dead end, so Romine told them to get

out and run. Everyone ran except Au Yeung, so Smith walked back to her because she

“didn’t want [Au Yeung] to go down by herself * * *.” Smith testified that she admitted to

theft and complicity to burglary charges. Smith acknowledged that the day of her arrest,

she told police that “it was all [Au Yeung]” and Romine knew nothing about the plan.

       {¶8}   Au Yeung testified she used to date Romine. The day in question,

Romine borrowed someone’s car, and the pair picked up Smith and Carmichael and

went to the Bean house “[t]o commit burglary and theft.” Earlier that day, Au Yeung’s

grandmother kicked her out, and she needed money for a place to live and to feed her

addiction to pain pills. Smith was not supposed to come to the house, but Romine had

only been to the Bean residence once when Smith was a foster child there and did not

know exactly how to get there. Au Yeung thought they would find two safes in the

home, but they did not. Instead, she and Carmichael each took a small television out of

the house. Then while Romine and Carmichael carried a big television out together, an
Pickaway App. No. 11CA1                                                                     6


officer drove by and looked right at them. The men rushed to put the television in the

trunk, everyone got in the car, and Romine sped off. Au Yeung had a gun at the Bean

house, but it fell out of her waist band. She yelled to Romine when she saw it on the

ground. He picked the gun up and put it in his pocket. Then as he drove, he took the

gun out and threw it on her lap. Au Yeung testified that she entered a plea to the

burglary but had not been sentenced yet.

       {¶9}   Au Yeung admitted that after her arrest, she told detectives that she

“committed the burglary and stuff” and that Romine had no knowledge of it. She also

admitted that she wrote letters to Romine apologizing for pointing a gun at him.

However, Au Yeung claimed she lied because she still cared about Romine, and he

convinced her that because she had not been in trouble before, if she took all the blame

she would not get into trouble. According to her, Romine made statements in letters to

her indicating that she needed to lie to keep him out of trouble.

       {¶10} Amy Jones, Romine’s girlfriend, testified that she was at his home the

morning of the burglary. They heard someone knock on a window but ignored the

person. When the person knocked on the door, Romine went outside. She looked out,

saw Au Yeung, and eavesdropped on their conversation. Au Yeung was “crying

hysterical, you know, and he was telling her that it’s over, it’s been over, and she said

well, would you do one last thing for me, help me move some of [Smith’s] things that

she needed moved, and then I’ll leave you two love birds alone.” When Jones left,

Romine and Au Yeung were getting in a car to leave together.

       {¶11} The jury found Romine guilty of both charges. After sentencing, Romine

filed this appeal.
Pickaway App. No. 11CA1                                                                                 7


                                       II. Assignment of Error

        {¶12} Romine assigns the following error for our review:

        APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
        OF THE EVIDENCE.

                               III. Manifest Weight of the Evidence

        {¶13} In his sole assignment of error, Romine contends that his conviction for

complicity to burglary was against the manifest weight of the evidence.1 “In determining

whether a criminal conviction is against the manifest weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses and determine 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.” State v. Brown, Athens

App. No. 09CA3, 2009-Ohio-5390, at ¶24, citing State v. Thompkins, 78 Ohio St.3d 380,

387, 1997-Ohio-52, 678 N.E.2d 541. A reviewing court “may not reverse a conviction

when there is substantial evidence upon which the trial court could reasonably conclude

that all elements of the offense have been proven beyond a reasonable doubt.” State v.

Johnson (1991), 58 Ohio St.3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988),

38 Ohio St.3d 56, 526 N.E.2d 304, at paragraph two of the syllabus.

        {¶14} Even in acting as a thirteenth juror we must still remember that the weight

to be given evidence and the credibility to be afforded testimony are issues to be

determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235,

652 N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620

N.E.2d 50. The fact finder “is best able to view the witnesses and observe their

1
  In this assignment of error, Romine focuses on the complicity to burglary conviction and does not argue
that the complicity to theft conviction was against the manifest weight of the evidence.
Pickaway App. No. 11CA1                                                                      8


demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. City of Cleveland (1984), 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we will only interfere if the fact

finder clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the judgment

results from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of

the syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.

       {¶15} R.C. 2923.03(A)(2), the complicity statute, provides: “No person, acting

with the kind of culpability required for the commission of an offense, shall do any of the

following: * * * Aid or abet another in committing the offense[.]” Here, the State argued

that Romine purposely aided or abetted Au Yeung in committing burglary under R.C.

2911.12(A)(3), which provides: “No person, by force, stealth, or deception, shall do any

of the following: * * * Trespass in an occupied structure * * * with purpose to commit in

the structure * * * any criminal offense[.]” The “criminal offense” Au Yeung allegedly had

purpose to commit was theft under R.C. 2913.02(A)(1), which states: “No person, with

purpose to deprive the owner of property or services, shall knowingly obtain or exert

control over either the property or services in any of the following ways: * * * Without

the consent of the owner or person authorized to give consent[.]”

       {¶16} Romine contends that the jury should not have believed Smith’s and Au

Yeung’s trial testimony that he knowingly participated in the crimes because they initially

told police Romine had no knowledge of the plan. Romine argues their first version was

the only one worthy of credibility because the women “were apprehended shortly after
Pickaway App. No. 11CA1                                                                      9


the burglary and had no time to fabricate their stories[.]” (Appellant’s Br. 4). He claims

that “[o]nly after time to reflect on their stories and plea offers by the State do both

Smith and Au Yeung change their original story.” (Appellant’s Br. 4).

       {¶17} Romine also contends that his behavior was “inconsistent with someone

committing a burglary.” (Appellant’s Br. 4). He points out that the burglary occurred

during the daytime, he did nothing to conceal his identity, he carried a television out a

front door facing a busy street with no effort to hide his activity, and he did not wear

gloves or anything else that would prevent him from leaving fingerprints behind.

Romine also argues that it is unlikely that he would return to the Bean residence if he

thought he committed a crime there.

       {¶18} However, as we explained in State v. Murphy, Ross App. No. 07CA2953,

2008-Ohio-1744, at ¶31:

       It is the trier of fact’s role to determine what evidence is the most credible
       and convincing. The fact finder is charged with the duty of choosing
       between two competing versions of events, both of which are plausible
       and have some factual support. Our role is simply to insure the decision is
       based upon reason and fact. We do not second guess a decision that has
       some basis in these two factors, even if we might see matters differently.

For the jury to conclude Romine committed complicity to burglary, it had to assess the

credibility of the witnesses and accept testimony regarding Romine’s participation in the

events at the Bean residence. Having heard the testimony and having observed the

demeanor of the witnesses, the jury could choose to believe all, part, or none of the

testimony presented by any witnesses. State v. Parish, Washington App. Nos. 05CA14

& 05CA15, 2005-Ohio-7109, at ¶15.

       {¶19} The jury chose to believe the State’s version of events, and we will not

substitute our judgment for that of the finder of fact under these circumstances. The
Pickaway App. No. 11CA1                                                                     10


evidence reasonably supports the conclusion that Au Yeung intended to trespass in the

Bean residence with purpose to take a safe, i.e. commit a theft offense, and that

Romine purposely aided and abetted her. Au Yeung and Smith testified that Romine

drove the foursome to the Bean residence, and Smith testified that Romine explained

the plan to get the safe to the group. Although they did not find a safe in the house, Au

Yeung and Smith testified that Romine actually carried a large television from the

house. The women also testified that Romine drove the vehicle during their effort to

evade the police. “Flight from justice may be indicative of a consciousness of guilt.”

State v. Santiago, Cuyahoga App. No. 95516, 2011-Ohio-3058, at ¶30, citing State v.

Taylor, 78 Ohio St.3d 15, 27, 1997-Ohio-243, 676 N.E.2d 82. In addition, law

enforcement testified that at the time of his arrest, Romine had part of a handgun.

       {¶20} The jury was free to believe this testimony and believe Au Yeung and

Smith when they testified that they were lying to police when they said Romine did not

know they were planning to steal from the Bean residence. Likewise, the jury was free

to reject Jones’ testimony indicating Romine believed he was moving Smith’s

possessions, especially given the unlikelihood that a 17 year old foster child left a

$3,000, 65 inch plasma television in the Bean’s family room. And even though Romine

points out behavior inconsistent with him having a criminal intent, the jury could easily

conclude that Romine was careless or intentionally acted in this manner hoping to avoid

suspicion. Thus, after reviewing the entire record, we cannot say that the jury lost its

way or created a manifest miscarriage of justice when it found Romine guilty of

complicity to burglary. Accordingly, we overrule Romine’s sole assignment of error and

affirm the trial court’s judgment.
Pickaway App. No. 11CA1                   11


                          JUDGMENT AFFIRMED.
Pickaway App. No. 11CA1                                                                     12


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Pickaway
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court



                                            BY: _____________________________
                                                William H. Harsha, Presiding Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
