[Cite as State v. Tillis, 2017-Ohio-9010.]



                             STATE OF OHIO MAHONING COUNTY
                                    IN THE COURT OF APPEALS
                                             SEVENTH DISTRICT

STATE OF OHIO,                                        )
                                                      )
         PLAINTIFF-APPELLEE,                          )
                                                      )            CASE NO. 16 MA 0130
V.                                                    )
                                                      )                  OPINION
TERRENCE TILLIS,                                      )
                                                      )
         DEFENDANT-APPELLANT.                         )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Court of Common
                                                      Pleas of Mahoning County, Ohio
                                                      Case No. 14 CR 1132

JUDGMENT:                                             Affirmed

APPEARANCES:
For Plaintiff-Appellee                                Paul Gains
                                                      Prosecutor
                                                      Ralph M. Rivera
                                                      Assistant Prosecutor
                                                      21 W. Boardman St., 6th Floor
                                                      Youngstown, Ohio 44503

For Defendant-Appellant                               Attorney Donna Jewell McCollum
                                                      3685 Stutz Drive, Suite 100
                                                      Canfield, Ohio 44406

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                      Dated: December 8, 2017
[Cite as State v. Tillis, 2017-Ohio-9010.]
DONOFRIO, J.

         {¶1}     Defendant-appellant, Terrence Tillis, appeals from a Mahoning Country
Common Pleas Court judgment convicting him of burglary, following a jury trial.
         {¶2}     On October 21, 2014, Crystal Jefferson left her house in Youngstown at
approximately 10:30 a.m. to give a friend a ride. Upon her return home, around
11:00 a.m., Jefferson went back to sleep. According to Jefferson, she was asleep for
ten to fifteen minutes when she “felt something” in the bedroom with her. Jefferson
awoke to see appellant standing in her bedroom doorway. Jefferson recognized
appellant because she has known him for years and appellant resided next door with
his girlfriend. Upon seeing appellant in her bedroom, Jefferson began yelling and
cursing at him to leave. It was at this point that Jefferson saw appellant grab her
Michael Kors purse and flee from her residence.
         {¶3}     Jefferson got dressed and went next door where appellant was staying
and banged on the door. Appellant did not open the door or acknowledge Jefferson.
One of the neighbors heard the commotion and approached Jefferson. The neighbor
permitted Jefferson to use his phone to call the police. Youngstown Police Officer
Richard Baldwin and Detective-Sergeant Chad Zubal responded. Officer Baldwin
took a report on what had transpired. When Detective Zubal heard Jefferson explain
the situation, and realized the suspect lived next door, Detective Zubal and a few
other officers approached the house where appellant resided. Appellant answered
the door for the officers and invited them into the foyer. While inside, the officers did
not conduct a search because Detective Zubal believed they did not have enough
evidence to search the residence. Despite the officers not conducting a search of the
residence, they did conduct a protective sweep to ensure no one else was inside the
house. The officers did not see Jefferson’s purse during the protective sweep. The
officers subsequently arrested appellant.
         {¶4}     Jefferson’s purse was not located until Brenda Reed (appellant’s
girlfriend) went to Jefferson’s house and returned the purse to Jefferson. Jefferson’s
friend, Laponica Lampley, witnessed Reed give the purse to Jefferson.
         {¶5}     A Mahoning County Grand Jury indicted appellant on one count of
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burglary, a second-degree felony in violation of R.C. 2911.12(A)(1)(D). The matter
proceeded to a jury trial. The jury found appellant guilty as charged. The trial court
subsequently sentenced appellant to six years’ incarceration.
       {¶6}   This court granted appellant leave to file a delayed appeal on October
25, 2016. He now raises one assignment of error.
       {¶7}   Appellant’s sole assignment of error states:

       THE COURT DENIED APPELLANT DUE PROCESS UNDER THE
       FOURTEENTH AMENDMENT DUE TO THE FACT THAT HIS
       CONVICTION FOR BURGLARY WAS AGAINST THE MANIFEST
       WRIGHT [SIC] OF THE EVIDENCE AND THE JURY’S VERDICT WAS
       INCONSISTENT        WITH      THE     EVIDENCE        AND    TESTIMONY
       PRESENTED AT TRIAL.

       {¶8}   In his assignment of error, appellant asserts both that there was
insufficient evidence to support his conviction and that his conviction was against the
manifest weight of the evidence. We will address his arguments separately.
       {¶9}   Appellant argues there was insufficient evidence to support his
conviction.   He contends that the officers arrested him solely on Jefferson’s
eyewitness testimony. He notes that the police did not collect DNA or fingerprint
evidence and no one else testified as to seeing him in Jefferson’s home or having
possession of the purse. Appellant argues that Jefferson’s testimony is insufficient
evidence for a reasonable trier of fact to find the essential elements of burglary.
       {¶10} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy.               State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a
                                                                               -3-


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. Smith, 80 Ohio
St.3d at 113.
       {¶11} The jury convicted appellant of burglary in violation of R.C.
2911.12(A)(1), which provides: “No person, by force, stealth, or deception, shall * * *
[t]respass in an occupied structure * * * when another person other than an
accomplice of the offender is present, with purpose to commit in the structure * * *
any criminal offense[.]”
       {¶12} We must examine the evidence to determine if it was sufficient to
convict appellant of burglary. Plaintiff-appellee, the State of Ohio, presented five
witnesses.
       {¶13} Jefferson was the first witness. Jefferson testified that on the morning
in question she left her house at approximately 10:30 a.m. to drop a friend off. (Tr.
108-109). She then returned home and got back into bed at approximately 11:00
a.m. (Tr. 109). Jefferson estimated that she was asleep for ten to 15 minutes when
she “felt something” in the room with her. (Tr. 109-110). She stated that she woke
up to find appellant was in the room with her. (Tr. 110). Jefferson testified that she
has known appellant for years. (Tr. 110). At that time, appellant was living next door
to Jefferson with his girlfriend, Brenda Reed. (Tr. 111).
       {¶14} Jefferson testified that she began “cussing” at appellant and asking him
why he was in her house. (Tr. 113). She stated that appellant then grabbed her
purse and ran out of her front door. (Tr. 113). Jefferson stated that she chased after
appellant but was unable to catch him. (Tr. 116). She then went back inside her
house to put some clothes on. (Tr. 116-117). Jefferson then went next door to
Reed’s house and banged on the door. (Tr. 117). No one answered. (Tr. 118).
Another neighbor saw the commotion, came over, and offered Jefferson his cell
phone to call the police. (Tr. 118). Jefferson called 911 and the police responded.
(Tr. 118). She told the police what happened. (Tr. 118-119). Jefferson stated that
the police eventually brought appellant out of his girlfriend’s house. (Tr. 126). And
                                                                               -4-


when Jefferson went back inside of her house, she noticed that the lock on her
bedroom window had been broken. (Tr. 120). She testified that it was not broken
earlier that day. (Tr. 120).
       {¶15} Several days later, Jefferson testified, appellant’s girlfriend came to her
house and returned the purse that appellant had stolen. (Tr. 127-128). She then
took the purse to the Youngstown Police Department. (Tr. 132).
       {¶16} On cross examination, Jefferson stated that while appellant was leaving
her house, she was “pulling” on him. (Tr. 138).
       {¶17} Youngstown Police Officer Richard Baldwin was the second witness.
Officer Baldwin testified that he responded to a call at approximately 11:00 a.m.
regarding a burglary. (Tr. 145). When he arrived on the scene, Jefferson explained
to him that: appellant broke into her house through her bedroom window; he grabbed
her purse; he started running; she grabbed him but he broke loose; and he ran out of
the front door. (Tr. 145-146). While Officer Baldwin was taking Jefferson’s report, he
saw other officers step out onto Reed’s porch with appellant.            (Tr. 148-149).
Jefferson yelled out that appellant was the man who broke into her house. (Tr. 150).
Officer Baldwin stated that he did not see the purse during this time. (Tr. 151).
       {¶18} The third witness was Detective-Sergeant Chad Zubal. Detective Zubal
also responded the burglary call at approximately 11:00 a.m.         (Tr. 161).     Upon
learning that appellant lived next door to Jefferson, Detective Zubal, along with other
officers, knocked on Reed’s door.       (Tr. 162).   Appellant answered.     (Tr. 162).
Detective Zubal testified that he explained to appellant why they were there. (Tr.
163). He did not conduct a search of the house because the detective did not think
they had enough reason to search the entire house. (Tr. 163). The police only
conducted a protective sweep. (Tr. 163). Detective Zubal did not notice the purse
during the protective sweep. (Tr. 163-164).
       {¶19} Lieutenant Ramon Cox was the fourth witness. He testified that he met
with Jefferson to file the charge against appellant. (Tr. 175-176). A few days later,
Lt. Cox stated, Jefferson returned with the stolen purse and gave it to him. (Tr. 176).
                                                                              -5-


      {¶20} Laponica Lampley was the final witness. Lampley is Jefferson’s friend.
She testified she was at Jefferson’s house in the days following the burglary when
Reed came to the house. (Tr. 186-187). She saw Reed return Jefferson’s stolen
purse to her. (Tr. 187-189).
      {¶21} This evidence was sufficient to support appellant’s burglary conviction.
The broken lock on Jefferson’s bedroom window indicates a forced entry. Jefferson
testified that the bedroom window lock was intact when she left her residence that
morning, but after appellant fled her residence she noticed that the lock was broken.
Additionally, Jefferson knew appellant and identified him as the man she found in her
bedroom who fled from her house with her purse. This evidence, construed in the
light most favorable to the prosecution, establishes each element of burglary. Thus,
appellant’s conviction is supported by sufficient evidence.
      {¶22} Appellant also argues his conviction is against the manifest weight of
the evidence. Appellant contends the discrepancies in Jefferson’s testimony make it
unreliable. Appellant argues that Jefferson changed her account of what happened
by originally testifying that she was unable to catch appellant while he was fleeing
and then testifying that she caught him and pulled on him as he fled her residence.
In addition, appellants points out, the timeline given by Jefferson and the timeline
given by the police do not correspond. Jefferson testified that she left her residence
around 10:30 a.m. and returned around 11:00 a.m. Jefferson further testified that
she was asleep for ten to fifteen minutes before she “felt something” in the room with
her. Jefferson being asleep for ten to fifteen minutes prior to seeing appellant places
the time of the encounter around 11:15 a.m. This does not take into account the time
it took Jefferson to chase appellant out of her residence, get dressed, go next door
and pound on the door, the neighbor coming over to see what is wrong, and the
neighbor allowing Jefferson to call the police using his phone. Despite all of these
things, Officer Baldwin testified that he arrived on scene at 11:00 a.m. Appellant
argues that the timeline discrepancy in Jefferson’s testimony destroys her credibility
as a witness.
                                                                                 -6-


       {¶23} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
       {¶24} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
       {¶25} In order to reverse a jury verdict as against the manifest weight of the
evidence, all three appellate judges must concur. Thompkins, 778 Ohio St.3d at 389.
       {¶26} Appellant urges that the inconsistencies in Jefferson’s testimony render
her unreliable. But the inconsistencies are minimal. Jefferson’s recollection of the
time may have been off by fifteen minutes or so compared to the officers’ account of
when they responded to the scene.          Additionally, Jefferson may have grabbed
appellant as he fled from her house or she may not have grabbed him. Neither of
                                                                               -7-


these inconsistencies go to the ultimate issue in this case, however.                The
inconsistencies relate to Jefferson’s credibility. And her credibility was a matter for
the jury to weigh.
       {¶27} The jury is in the best position to judge witnesses' credibility and
conflicting testimony. Rouse, 2005-Ohio-6328, at ¶ 49, citing Hill, 75 Ohio St.3d at
205. That is because the jurors can observe witnesses' gestures, voice inflections,
and demeanor. Id. We will not second-guess the jury's determinations of credibility.
       {¶28} Based on the above, we cannot conclude that the jury lost its way in
finding appellant guilty of burglary. Appellant’s conviction is not against the manifest
weight of the evidence.
       {¶29} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
       {¶30} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.
