[Cite as State v. Weimer, 2013-Ohio-5651.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2013-L-008
        - vs -                                   :

ZACHARY R. WEIMER,                               :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000425.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor and Karen A. Sheppert, Assistant
Prosecutor, Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Joseph R. Klammer, The Klammer Law Office, LTD., Lindsay II Professional Center,
6990 Lindsay Drive, #7, Mentor, OH 44060 (For Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Zachary R. Weimer, appeals his convictions,

following a jury trial in the Lake County Court of Common Pleas, for Aggravated Murder,

Murder, Aggravated Robbery, Aggravated Burglary, Felonious Assault, Tampering with

Evidence, Grand Theft of a Motor Vehicle, Theft from an Elderly Person, and Receiving

Stolen Property. The issues to be determined by this court are whether convictions for

murder charges are supported by the weight of the evidence when there is testimony
that the defendant had stolen property from the victim’s home and that he admitted

committing the murder to other inmates in jail; whether trial counsel was ineffective by

failing to file a motion to suppress based on the temporary detention of the defendant to

investigate potential stolen property and drug paraphernalia; and whether the statement

of a co-conspirator is admissible as a hearsay exception. For the following reasons, we

affirm the judgment of the court below.

       {¶2}   On August 14, 2012, the Lake County Grand Jury issued an Indictment,

charging Zachary with the following: two counts of Aggravated Murder (Counts One and

Two), unclassified felonies, in violation of R.C. 2903.01(B); two counts of Murder

(Counts Three and Four), unclassified felonies, in violation of R.C. 2903.02(A) and (B);

two counts of Aggravated Robbery (Counts Five and Six), felonies of the first degree, in

violation of R.C. 2911.01(A)(1) and (3); two counts of Aggravated Burglary (Counts

Seven and Eight), felonies of the first degree, in violation of R.C. 2911.11 (A)(1) and (2);

Felonious Assault (Count Nine), a felony of the second degree, in violation of R.C.

2903.11(A)(1); two counts of Tampering with Evidence (Counts Ten and Eleven),

felonies of the third degree, in violation of R.C. 2921.12(A)(1); Grand Theft of a Motor

Vehicle (Count Twelve), a felony of the fourth degree, in violation of R.C. 2913.02(A)(1);

Theft from an Elderly Person (Count Thirteen), a felony of the fourth degree, in violation

of R.C. 2913.02(A)(1) and (B)(3); three counts of Receiving Stolen Property (Counts

Fourteen-Sixteen), felonies of the first and fourth degree and a misdemeanor of the first

degree, in violation of R.C. 2913.51(A); and one count of Engaging in a Pattern of

Corrupt Activity (Count Seventeen), a felony of the first degree, in violation of R.C.

2923.32(A)(1).




                                             2
       {¶3}   On November 9, 2012, Zachary’s counsel filed two Motions in Limine.

One included a request that the State refrain from referencing the co-conspirator,

Danna Weimer’s, statements, which included handwritten letters Danna sent to Zachary

while he was incarcerated. Argument was presented regarding this issue at several

times during the course of the trial, but the Motion was ultimately denied.

       {¶4}   A jury trial was held in this matter between November 8-19, 2012. Prior to

the start of the trial, the State moved to dismiss Count Fifteen, Receiving Stolen

Property, a misdemeanor of the first degree, and Count Seventeen, Engaging in a

Pattern of Corrupt Activity. These two charges were dismissed and Count Sixteen was

renumbered as Count Fifteen.

       {¶5}   At trial, the following pertinent testimony and evidence were presented.

       {¶6}   On June 13, 2012, several individuals living on or near Canterbury Drive in

Madison, Ohio, neighbors of seventy-seven year old Eleanor Robertson, noticed that

Eleanor’s van was gone but her garage door was open, which was not normal behavior

for Eleanor. Jerry Deel testified that his wife had spoken to Eleanor at approximately

2:30 p.m. on June 12, but on June 13, at about 8 a.m. he noticed the open garage door.

Throughout the day, the neighbors attempted to contact Eleanor, who lives alone in her

home, but were unable to do so.         That evening, they called Eleanor’s son, Scot

Robertson, and were able to gain access to her home to investigate. They noticed that

the home was “ransacked,” items were strewn about Eleanor’s bedroom and other

rooms, and there were various lit candles sitting around the home. They also noted that

the front door was “barricaded” with chairs.




                                               3
      {¶7}   Upon entering the home, Scot saw a liquid squirted on the walls and floor

in his mother’s bedroom. He testified that the home was “trashed.” In his mother’s

room, the mattress had been slid over and there was a large pile of clothes on the floor.

      {¶8}   Meanwhile, at approximately 5:30 p.m. on June 13, Patrolman Don Ivory,

of the Euclid Police Department, was patrolling the area near the Gold Werks store in

Euclid, where individuals sell gold and other items. He testified that this area is known

for drug activity and that individuals often sell stolen property at the Gold Werks store.

Patrolman Ivory observed a woman, later identified as Danna Weimer, sitting in a

vehicle in the parking lot near the store, leaning from the driver’s seat into the

passenger seat. He thought that she may need assistance, and approached the car.

He noticed that she was leaning over to examine jewelry spread out on the passenger

seat, testing it with a magnet to determine if it was real. Patrolman Ivory also saw a

large box of the jewelry and that the back seat was stacked full of items. He asked who

the jewelry belonged to and she stated that it was her son’s. Patrolman Ivory asked for

her driver’s license, which she retrieved from her purse. At that time, he saw a syringe

in her purse, indicating possible drug use.

      {¶9}   Patrolman Ivory then called for backup and two officers responded.

Subsequently, Zachary, Danna’s son, exited the Gold Werks store and Patrolman Ivory

requested identification, which he did not produce. Patrolman Ivory asked for his name

and date of birth, but Zachary stated that he was “Gregory Weimer.” While Patrolman

Ivory was investigating his identity, Zachary put his hands in his pockets, was asked to

remove them, but continued placing them in his pockets. Zachary was handcuffed for

this reason. Patrolman Ivory also noted that, generally, to complete a transaction at




                                              4
Gold Werks, identification is required, so his failure to provide one to police was

suspicious.

        {¶10} Patrolman Ivory explained that Danna gave him permission to search the

car, in which he found various items of property, including the jewelry, a knife, and a

pellet gun.   Danna and Zachary were subsequently arrested and Patrolman Ivory

performed an inventory search of the car and took photographs of the items inside.

        {¶11} Patrolman Ivory was later informed of a missing person alert for an

individual named Eleanor Robertson.       He recognized this name from a lock box

recovered from the car and sent the photographs of the items to the Madison Police.

        {¶12} On that date, Scot was able to view the photographs that Patrolman Ivory

had sent to Madison Police, while he was still at Eleanor’s home. He identified most of

the recovered property as belonging to Eleanor, including baseball memorabilia, a knife,

jewelry, a lockbox, and various other items. Penny Borton, Eleanor’s daughter, was

also able to identify these items as belonging to her mother. She later identified these

items in person at the Madison Police Department.

        {¶13} Several employees of the Lake County Crime Lab testified regarding the

processing of the crime scene at Eleanor’s home on the evening of June 13.        While

conducting their examination of the home, forensics examiner Jamie Walsh discovered

Eleanor’s body under a pile of clothes in her bedroom, with a candle “tucked in her

arm.”   Upon completing the processing of the scene that evening, they dusted for

fingerprints, but were unable to recover any.

        {¶14} Dr. Erica Armstrong, a medical examiner, performed Eleanor’s autopsy.

Dr. Armstrong testified that Eleanor had been stabbed 94 times, had charring on her

back, and there were defensive wounds on her arms and forearm. She noted that the

                                            5
stab wounds could have been caused by a screwdriver, but she could not identify this

as the weapon used. Dr. Armstrong explained that Eleanor died approximately one or

two days prior to the autopsy conducted on the morning of June 14.

      {¶15} After discovering that Eleanor was deceased and finding the items in

Zachary and Danna’s possession, they were questioned by police as suspects in the

crime but made no admissions.

      {¶16} Several witnesses testified regarding the location and activities of Zachary

and Danna on June 12 and 13.

      {¶17} On the morning of June 12, Nestor Angula saw Danna and Zachary

together and Zachary wanted to purchase heroin, which Angula did not have.           He

observed that Zachary seemed “sick” because he needed heroin.

      {¶18} Gregory Weimer, Zachary’s brother, testified that he lived on Canterbury

Drive near the victim’s home and that he purchased the house from Joe Skillthorpe, his

mother’s boyfriend.    In June, including the date of Eleanor’s murder, Zachary was

staying in his home.

      {¶19} Erin Perkins, who was living with Gregory during the time the murder

occurred, noted that on the morning of June 12, Zachary and Danna were at Gregory’s

home, but they were not there at 2 p.m., when she returned.

      {¶20} A video from a surveillance system located at Joe Skillthorpe’s home,

where Danna lived, was played for the jury and described by Lieutenant Timothy Brown.

He explained that Zachary and Danna left Skillthorpe’s home in Danna’s car at

approximately 11:15 a.m. on June 12. Danna arrived back at the home at 9:46 p.m.,

and moved various items in and out of her car. At 4:44 a.m. Zachary arrived at the

home, driving what was identified as Eleanor’s minivan. He was then seen moving

                                          6
various items from the van to Danna’s car. The two carried items between the car and

home and also placed some items in a burn pile in the back yard. The van was later

driven away by Zachary and located in Ashtabula County on October 14, in a wooded

area.

        {¶21} Kenneth Larrick, an engineer with AT&T, testified regarding Zachary’s cell

phone use. Using the location of the cell phone towers, Larrick was able to explain that

the phone calls or messages transmitted by the phone occurred closest to the Madison

tower, the city where Eleanor’s home was located, from 3:41 p.m. on June 12 until 4:19

a.m. on June 13th. He explained that the towers cannot provide an exact location of

where cell phone calls originate from but that they transmit calls within a several mile

radius.

        {¶22} Detective Timothy Doyle recovered various items from Danna’s car, which

included a screwdriver in the passenger side.        This was tested and nothing of

evidentiary value was found.

        {¶23} David Green, a criminalist with the Lake County Crime Lab, testified

regarding shoe prints found on bedding in Eleanor’s bedroom. Using a chemical spray

on a dusty area of the bed covering, he developed four partial footwear impressions,

which appeared to be from the same type of shoe. Green noted that the size, tread

pattern, and wear pattern on the shoes worn by Zachary on the date he was arrested

matched the prints found on the bedding. He explained, however, that there were no

accidental characteristics, such as cuts or imperfections in the shoes, that he could use

to state that there was a positive match or identification. Based on all of the other

characteristics, however, he also could not exclude the shoes as a match to the prints

found at the scene.

                                            7
      {¶24} Patrick Sullivan, who was in the Lake County Jail for a probation violation

from a prior heroin trafficking charge, testified regarding conversations he had with

Zachary while they were both incarcerated.        After a preliminary hearing, Zachary

returned to the jail and noted that during the hearing, someone stated the victim had

been stabbed 90 times. Zachary told Sullivan “that he didn’t believe that he stabbed her

90 times. He believed it was closer to nine than 90.” Zachary also stated that no one

would ever find the murder weapon or the victim’s van, since Ashtabula was a large

county. Sullivan stated that he thought the weapon may have been a screwdriver, to

which Zachary nodded.

      {¶25} Sullivan testified that he did have access to newspaper articles which

discussed the case, while in jail. He also explained that in exchange for the information

regarding Zachary’s statements, the prosecutor recommended probation as his

sentence.

      {¶26} Richard Gould, also incarcerated at the Lake County Jail, spoke to

Zachary regarding the murder. Zachary told him that he went to the victim’s house “with

a buddy” to rob her, and knew her because his mother used to live next door. The

victim stated she was going to call 911, and Zachary stabbed her “until his arms got

tired,” using a screwdriver as the weapon. Zachary told Gould that he put the victim

next to the bed, squirted perfume and nail polish remover on her, lit candles to

“incinerate her,” and barricaded the house.

      {¶27} Gould explained that, upon providing the information about Zachary’s

statements, he was given credit for time served and probation for burglary charges.

      {¶28} Lieutenant James Turek, who works at the Lake County Jail, explained

that he found letters from Danna in Zachary’s cell, as well as a letter from Zachary to

                                              8
Danna. These letters were introduced into evidence. The letters included advice from

Danna that Zachary should take a plea bargain because his story would not stand up in

court, a statement that she was being “silent,” and went over her version of the facts of

the events that occurred on June 12 and 13.

      {¶29} On November 20, 2012, the jury found Weimer guilty of all 15 counts.

This verdict was memorialized in the trial court’s November 20, 2012 Judgment Entry.

      {¶30} A sentencing hearing was held on December 17, 2012, and a Judgment

Entry of Sentence was filed on December 21, 2012. The court merged Counts One,

Three, Four, Seven, Eight, and Nine with Count Two; Counts Five, Thirteen, and

Fourteen with Count Six, and Count Twelve with renumbered Count Fifteen. The court

sentenced Weimer to a term of life imprisonment without parole on Count Two, 11 years

in prison on Count Six, 36 months in prison on Count Ten, 36 months on Count Eleven,

and 18 months on renumbered Count Fifteen, with the sentences on Counts Six, Ten,

Eleven, and Fifteen to run consecutively and prior to the life imprisonment sentence.

Weimer was also ordered to pay restitution in the amount of $7,569.05.

      {¶31} Zachary timely appeals and raises the following assignments of error:

      {¶32} “[1.]   The defendant received ineffective assistance of counsel.

      {¶33} “[2.]   The trial court committed reversible error in admitting the letters

between Zachary and Danna Weimer.

      {¶34} “[3.]   Defendant’s conviction is against the manifest weight of the

evidence.”

      {¶35} In his first assignment of error, Zachary argues that trial counsel was

ineffective by failing to file a motion to suppress any evidence that was recovered as a

result of him being stopped and questioned in the parking lot of the Gold Werks store.

                                           9
He argues that Patrolman Ivory conducted an improper investigatory detention when

Zachary was required to provide his identification to police and was prevented from

leaving the parking lot.

       {¶36} The State argues that the police had reasonable suspicion to temporarily

detain Zachary for further investigation, based on Danna’s behavior and her possession

of drug paraphernalia in the vehicle.

       {¶37} The Ohio Supreme Court has adopted a two-part test to decide whether

an attorney’s performance is below the constitutional standard for effective assistance

of counsel.   To reverse a conviction due to ineffective assistance of counsel, the

defendant must prove “(1) that counsel’s performance fell below an objective standard

of reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”

State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland

v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶38} “When claiming ineffective assistance due to failure to file or pursue a

motion to suppress, an appellant must point to evidence in the record showing there

was a reasonable probability the result of trial would have differed if the motion had

been filed or pursued.” (Citation omitted.) State v. Walker, 11th Dist. Lake No. 2009-L-

155, 2010-Ohio-4695, ¶ 15. “If case law indicates the motion would not have been

granted, then counsel cannot be considered ineffective for failing to prosecute it.”

(Citations omitted.) Id.; State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d

858, ¶ 65 (“[t]o establish ineffective assistance of counsel for failure to file a motion to

suppress, a defendant must prove that there was a basis to suppress the evidence in

question”).

                                            10
       {¶39} Under the Fourth Amendment, warrantless searches and seizures are

unreasonable unless the search falls within an exception to this requirement. Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “There are

three general categories in which encounters between citizens and police officers are

classified. The first is a consensual encounter; the second is a brief investigatory stop

pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; and the

third is formal arrest. State v. Long (1998), 127 Ohio App.3d 328, 333, 713 N.E.2d 1.”

State v. Trevarthen, 11th Dist. Lake No. 2010-L-046, 2011-Ohio-1013, ¶ 12.

       {¶40} “It is well-settled that ‘[a]n encounter may be consensual when a police

officer approaches and questions individuals in or near a parked car.’”          (Citations

omitted.) State v. Ball, 11th Dist. Trumbull No. 2009-T-0013, 2010-Ohio-714, ¶ 12. “A

consensual encounter is not a seizure, therefore no Fourth Amendment rights are

invoked.” Id. at ¶ 14.

       {¶41} In the present case, following Patrolman Ivory’s interaction with Danna,

asking her about the items in the vehicle, Zachary exited the store and Patrolman Ivory

asked him to provide identification. Merely asking for identification would not be outside

of the scope of a consensual encounter. State v. Kock, 11th Dist. Lake No. 2008-L-067,

2008-Ohio-5859, ¶ 17 (“[p]olice may approach an individual, engage in conversation,

and request identification, all under the purview of a consensual encounter”).

       {¶42} Further, although Zachary argues that the presence of multiple police cars

caused Zachary and Danna’s “path to exit in the car they arrived in [to be] blocked,”

Patrolman Ivory’s testimony does not indicate that the cars were blocking the Weimers’

vehicle. However, it has been held that when circumstances are present, such as “the

threatening presence of several officers * * * or the use of language or tone of voice

                                           11
indicating that compliance with the officer’s request might be compelled,” a consensual

encounter may become a seizure or investigative detention.              United States v.

Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Here, both

Patrolman Ivory and two additional officers in separate police cruisers were present,

which may have led Zachary to believe he was not free to leave or decline the requests

for his identification. State v. Williams, 11th Dist. Lake No. 2008-L-182, 2009-Ohio-

4098, ¶ 23, citing Mendenhall at 554 (Fourth Amendment protections are implicated

when “the police officer has by * * * show of authority restrained the person’s liberty so

that a reasonable person would not feel free to decline the officer’s requests”). We also

note that the State concedes that the “encounter * * * was an investigative detention.”

      {¶43} Even when evaluating the temporary stop of Zachary to investigate further

under the purview of an investigative detention, however, we still cannot find that he

would have prevailed on a motion to suppress.

      {¶44} A police officer may detain a party for investigative purposes so long as he

or she has a reasonable, articulable suspicion of criminal activity. Terry, 392 U.S. at 21,

88 S.Ct. 1868, 20 L.Ed.2d 889. “The investigatory detention, however, must be limited

in duration and scope and can last only as long as is necessary for an officer to confirm

or dispel his or her suspicion of criminal activity.” (Citation omitted.) State v. Beaver,

11th Dist. Trumbull No. 2011-T-0037, 2012-Ohio-871, ¶ 31.           It is well-settled that

reasonable suspicion requires a minimal level of objective justification, i.e., “something

more than an inchoate and unparticularized suspicion or ‘hunch.’” (Citations omitted.)

Id.

      {¶45} Patrolman Ivory had suspicion of criminal activity, based on the large

quantity of items throughout the entire car, including the jewelry that Danna was testing

                                            12
to determine if it was real, which was suspicious in light of the likelihood of stolen items

being sold at Gold Werks. He also observed an unwrapped syringe in Danna’s purse,

which was possible drug paraphernalia, especially since the area was well-known for

drug activity. “An area’s reputation for criminal activity is an articulable fact which is a

part of the totality of circumstances surrounding a stop to investigate suspicious

behavior.” State v. Andrews, 57 Ohio St.3d 86, 88, 565 N.E.2d 1271 (1991). These

circumstances caused Patrolman Ivory to be concerned enough to request backup.

       {¶46} Furthermore, from the testimony, it appears that Zachary was detained

only to determine information about his identity, until the point that he failed to follow

police directions, continued to repeatedly place his hands in his pockets, and was

handcuffed. “[A] brief stop of a suspicious individual, in order to determine his identity

or to maintain the status quo momentarily while obtaining more information, may be the

most reasonable in light of the facts known to the officer at the time.” State v. Feliciano,

11th Dist. Lake No. 2004-L-205, 2006-Ohio-1678, ¶ 22, citing Adams v. Williams, 407

U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (the ‘“Fourth Amendment does not

require a policeman who lacks the precise level of information necessary for probable

cause to arrest to simply shrug his shoulders and allow a crime to occur’”).

       {¶47} Although the police ultimately conducted a pat-down of Zachary, based on

his behavior of repeatedly putting his hands in his pockets, which lead to the discovery

of his true identity, he does not argue that this pat-down was improper.

       {¶48} Finally, it is also noteworthy that, according to Patrolman Ivory’s

testimony, Danna consented to a search of the vehicle. Zachary asserts that the fruits

of the illegal seizure must be suppressed, but it appears that the relevant evidence

recovered was found in the car. Zachary does not clarify how the allegedly improper

                                            13
detention to request his identification caused the admission of evidence of the vehicle

search when police had already obtained Danna’s consent to perform the search.

        {¶49} Based on the foregoing, the evidence in the record does not support a

conclusion that a motion to suppress on these grounds would have been granted or that

counsel was ineffective by failing to file such a motion. To the extent that Zachary

argues there are additional facts, not in the record, to support a claim that counsel was

ineffective, these should be reviewed through post-conviction relief, not on direct

appeal. State v. Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983).

        {¶50} The first assignment of error is without merit.

        {¶51} In his second assignment of error, Zachary argues that the trial court erred

by admitting letters exchanged between himself and Danna while they were in jail. He

asserts that the co-conspirator exception to the hearsay rule does not apply, since

proper independent evidence of a conspiracy was not presented by the State.1

        {¶52} The State argues that the letters were properly admitted under Evid.R.

801(D)(2)(e), since there was evidence of a conspiracy and they were statements in

furtherance of the conspiracy.

        {¶53} “[A] trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised

in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d

269, 271, 569 N.E.2d 1056 (1991). Likewise, “[t]he trial court has broad discretion to




1. Although Zachary refers generally to the “letters,” he appears to be referring to the letters written by
Danna, since these fall under the Evid.R. 801(D)(2)(e) exception addressed in his brief. Evid.R.
801(D)(2)(a) allows the “party’s own statement” to be introduced against him, an issue which Zachary
does not dispute.


                                                   14
determine whether a declaration should be admissible as a hearsay exception.” State

v. Dever, 64 Ohio St.3d 401, 410, 596 N.E.2d 436 (1992).

      {¶54} “A statement is not hearsay if * * * the statement is offered against a party

and is * * * a statement by a co-conspirator of a party during the course and in

furtherance of the conspiracy upon independent proof of the conspiracy.”         Evid.R.

801(D)(2)(e). “[T]he statement of a co-conspirator is not admissible pursuant to Evid. R.

801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the

existence of the conspiracy by independent proof.” State v. Carter, 72 Ohio St.3d 545,

550, 651 N.E.2d 965 (1995).      To establish independent proof of a conspiracy, the

prosecution must provide proof: “(1) of the existence of a conspiracy; (2) of the

defendant’s participation in the conspiracy; (3) of the declarant’s participation in the

conspiracy; (4) that the statement was made during the course of the conspiracy; and

(5) that the statement was made in furtherance of the conspiracy.” (Citation omitted.)

State v. Baker, 137 Ohio App.3d 628, 653, 739 N.E.2d 819 (12th Dist.2000).

      {¶55} As an initial matter, Zachary points out that the conspiracy count was

dismissed from the indictment. However, the only count that was dismissed relating to

this was Engaging in a Pattern of Corrupt Activity, not conspiracy. Regardless, the

State was not required to charge Zachary with conspiracy to admit a co-conspirator’s

statement. State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019 (2000) (“[a]lthough the

substantive offense of conspiracy was not charged, the state could prove a conspiracy

in order to introduce out-of-court statements by conspirators in accordance with Evid.R.

801(D)(2)(e)”).

      {¶56} Zachary does not appear to argue that the State presented no evidence of

a conspiracy between Danna and Zachary to commit the crimes, but rather, that there

                                           15
was no separate evidence of a conspiracy “after the fact.” However, he fails to provide

case law supporting the conclusion that the State is required to present evidence both

of the conspiracy to commit the crime and to conceal the crime afterward. Instead, the

State is merely required to prove that a conspiracy existed.        “[A] declaration of a

conspirator, made subsequent to the actual commission of the crime, may be

admissible against any co-conspirator if it was made while the conspirators were still

concerned with the concealment of their criminal conduct.” (Citation omitted.) State v.

Daniels, 92 Ohio App.3d 473, 483, 636 N.E.2d 336 (1st Dist.1993). Courts have found

that letters related to attempts to avoid conviction were admissible under Evid.R.

801(D)(2)(e) in similar circumstances. See id. (holding that a letter written nine months

after a murder was a statement made in furtherance of the conspiracy, since it

suggested how the other defendant should testify and “was motivated by a desire to

avoid conviction for the crime”); State v. Keeton, 4th Dist. Richland No. 03 CA 43, 2004-

Ohio-3676, ¶ 24.

      {¶57} Zachary cites State v. Martin, 9 Ohio App.3d 150, 458 N.E.2d 898 (11th

Dist. 1983), in support of the proposition that the State was required to present separate

proof of the conspiracy “after the fact.” Martin, however, simply provides that the State

is required to produce prima facie evidence of a conspiracy and does not make a

distinction between evidence of a conspiracy during the crime or after the crime itself

has ended. Id. at 151-152.

      {¶58} Here, there was evidence in the record to establish a prima facie case of

the conspiracy between Zachary and Danna. Cell phone records indicated consistent

communication on the day of the crime between Zachary and Danna and the two were

seen together on that date by several witnesses.         Zachary drove Eleanor’s van,

                                           16
containing the stolen items, to Danna’s house, and she helped him move some of the

items into her car. Many of these items were also stored in a safe in Danna’s bedroom.

The two drove together to Gold Werks to sell some of the stolen items. These facts

were enough to establish a prima facie case of conspiracy and allow for the admission

of statements related to the conspiracy, i.e., Danna’s letters, under Evid.R. 801(D)(2)(e).

       {¶59} The second assignment of error is without merit.

       {¶60} In his third assignment of error, Zachary argues that his convictions for the

murder charges were against the manifest weight of the evidence, since the only

evidence that he committed the murder was the testimony of the two inmates regarding

Zachary’s admission to committing the crime.

       {¶61} A challenge to the manifest weight of the evidence involves factual issues.

The “weight of the evidence addresses the evidence’s effect of inducing belief.”

(Citation omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)

(“[w]eight of the evidence concerns ‘the inclination of the greater amount of credible

evidence, offered in a trial’”) (emphasis sic) (citation omitted).    “In other words, a

reviewing court asks whose evidence is more persuasive -- the state’s or the

defendant’s?” Wilson at ¶ 25.

       {¶62} Generally, the weight to be given to the evidence and the credibility of the

witnesses are primarily for the trier of fact to determine. State v. Thomas, 70 Ohio St.2d

79, 434 N.E.2d 1356 (1982), syllabus. When reviewing a manifest weight challenge,

however, the appellate court sits as the “thirteenth juror.” (Citation omitted.) Thompkins

at 387.    The reviewing court must consider all the evidence in the record, the

reasonable inferences, and the credibility of the witnesses, to determine whether, “in

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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. The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” (Citation

omitted.) Id.

       {¶63} For Zachary to be convicted of Aggravated Murder, the State was required

to prove that he “purposely cause[d] the death of another * * * while committing or

attempting to commit * * * aggravated robbery.” R.C. 2903.01(B). For the Murder

charges, the State was required to prove that he “purposely cause[d] the death of

another” and that he “cause[d] the death of another as a proximate result of * * *

committing or attempting to commit an offense of violence that is a felony of the first or

second degree.” R.C. 2903.02(A) and (B).

       {¶64} Zachary correctly points out that there was no DNA, fingerprint, or fiber

evidence to place him at the scene of the murder. However, there was evidence that

the shoe prints found in Eleanor’s bedroom were of the same size, type, and wear

pattern of Zachary’s shoes. Although they could not be positively matched due to the

lack of distinctive markings such as cuts or imperfections, this at least creates an issue

for the jury to consider in weighing the entirety of the evidence.

       {¶65} Furthermore, there is a great deal of circumstantial evidence connecting

Zachary to the crime. “Circumstantial evidence and direct evidence inherently possess

the same probative value.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph one of the syllabus; State v. Griesmar, 11th Dist. Lake No. 2009-L-061,

2010-Ohio-824, ¶ 50 “‘circumstantial evidence * * * may establish an element of the

charged offense’”) (citations omitted). Evidence and testimony showed that Zachary

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was living in the vicinity of the victim’s home and cell phone records show that he was in

the area on the date of the crimes, although a specific location could not be pinpointed.

Testimony was also presented that Zachary had a scratch on the inside of his arm,

which could be consistent with the fact that Eleanor had defensive wounds.

      {¶66} It is reasonable for a jury to infer that the person who was in possession of

the stolen property was the one who ransacked Eleanor’s home. Zachary was found in

possession of numerous pieces of Eleanor’s property on the day she was initially

discovered missing and was found dead. He had not only her property such as jewelry

and memorabilia, but was also in possession of her van.         These facts all point to

Zachary being in the home and stealing the property. It would be a far-fetched scenario

to believe that Zachary committed the burglary and a completely unrelated murder of

Eleanor coincidentally occurred on the same date.

      {¶67} In addition to the foregoing circumstantial evidence, two jail inmates,

Gould and Sullivan, testified that Zachary admitted to the murder.    Sullivan stated that

Zachary told him “that he didn’t believe that he stabbed [the victim] 90 times.        He

believed it was closer to nine than 90.” Gould explained various details of the crime that

Zachary described to him, including that Zachary did stab Eleanor. Zachary asserts that

this testimony does not prove that he confessed, since the newspapers accessible to

the inmates could have provided them with the details necessary to invent such a

confession and that the individuals had incentive to do so, based on the deals they

made with prosecutors. However, Lieutenant Brown testified that Gould told him some

details that were consistent with the police investigation and that were not mentioned in

a newspaper article, including that a screwdriver was the weapon rather than a stick or

a knife, there was nail polish remover used to help accelerate the fire, and that the door

                                           19
was barricaded with chairs. This lends credibility to Gould’s story and his assertion that

he received the information from Zachary rather than a newspaper article.

      {¶68} This court has noted that, even in cases involving “jailhouse snitch

testimony,” the court must be “mindful of the fact that questions of credibility of

witnesses are matters left to the trier of fact.” State v. Burrows, 11th Dist. Trumbull No.

2000-T-0089, 2002-Ohio-1961, ¶ 174.         The jury was aware of the circumstances

surrounding the testimony and was in the best position to determine if it was believable

and how much weight to give it.

      {¶69} Based on the foregoing, we cannot find that the jury clearly lost its way in

weighing the evidence and convicting Zachary of the murder charges in this case.

      {¶70} The third assignment of error is without merit.

      {¶71} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, finding Zachary guilty of Aggravated Murder, Murder, Aggravated

Robbery, Aggravated Burglary, Felonious Assault, Tampering with Evidence, Grand

Theft of a Motor Vehicle, Theft from an Elderly Person, and Receiving Stolen Property,

is affirmed. Costs to be taxed against appellant.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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