[Cite as State v. Octavio, 2016-Ohio-7661.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Sheila G. Farmer, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00092
TYLER OCTAVIO                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Canton Municipal
                                                   Court, Case No. 2016CRB00640




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            November 7, 2016



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

TASHA FORCHIONE                                    CRISTIN ROUSH
Assistant Prosecutor                               Stark County Public Defender
City Hall – 7th Floor                              201 Cleveland Avenue S.W., Ste. 104
Canton, OH 44701                                   Canton, OH 44702
Stark County, Case No. 2016CA00092                                                       2

Gwin, J.,

       {¶1}   Appellant Tyler Octavio [“Octavio”] appeals his conviction and sentence for

theft after a jury trial in Canton Municipal Court.

                                   Facts and Procedural History

       {¶2}   Jared Smith lives with his grandmother in Uniontown, Ohio. His bedroom

and living space is in the basement of the home. On January 30, 2016, Jared was visiting

a friend in Akron. When he returned home the next day, he and his grandmother learned

that his laptop was missing.

       {¶3}   Jared learned that his cousin, Alec, and Octavio were staying in his room

the previous night. Jared assumed that Alec and Octavio took the laptop. Neither Alec

nor Octavio had permission to take the laptop. Alec told Jared that he and Octavio were

both at fault for taking the laptop.

       {¶4}   Jared's grandmother, Donna Larson, stated that Alec and Octavio came

over to her home between 11:00 and 11:30 p.m. They were playing video games in

Jared's room. Around 3:00 a.m., Alec and Octavio left the home headed toward Canton.

The two returned to Ms. Larson’s home around 4:30 a.m. Donna heard them talking about

a password. Specifically, she heard Octavio ask Alec for a password. The next day,

Monday, Donna was cleaning and noticed that Jared's laptop was missing. Donna was

suspicious that Alec and Octavio took the laptop because they were the only other people

in the home that weekend.

       {¶5}   The co-defendant, Alec Zugeic, testified about the incident. Alec stated that

he and Octavio were using cocaine at his grandmother's house together on January 30,

2016. At some point, the two wanted to get more drugs and they discussed exchanging
Stark County, Case No. 2016CA00092                                                        3


a laptop for drugs. Alec told Octavio to text the dealer and asks if they could exchange

the laptop for drugs. Octavio asked if anyone would notice the laptop was missing, and

Alec said, "No, nobody uses it.” He insisted it was a family laptop. Alec never told Octavio

that the family gave him permission to take the laptop. Alec never told Octavio that the

laptop belonged to him. Octavio then drove himself and Alec to Canton, and Octavio

took the laptop into the dealer's house and exchanged it for cocaine. Later that morning,

the dealer contacted Alec and Octavio because he wanted the password for the laptop.

       {¶6}   Sergeant Nathan Weidman, of the Uniontown Police Department,

investigated this incident. He learned through speaking with Alec and Octavio that they

took the computer and exchanged it for drugs in Canton. On February 2, 2016, Octavio

went to the police station for an interview with Sergeant Weidman. During that interview,

Octavio denied involvement in the crime. The sergeant also interviewed Alec and he

admitted that he and Octavio exchanged the laptop for drugs.

       {¶7}   Sergeant Weidman asked Octavio to come in for a second interview on

February 3, 2016. During the second interview, Octavio stated, "I knew, but I didn't ask,"

referring to whether the computer was stolen. Octavio also stated, "I did find out the

computer was stolen when we got down there.” Octavio further said, "I had a good idea

it was stolen because of everything seemed fishy on the way down." A body camera

video, Exhibit 1, was presented to the jury, which documented Sergeant Weidman's

interview with Octavio. In the video, Octavio states, (1) I did find out the computer was

stolen when we got down there; (2) I had a good idea it was stolen because everything

seemed fishy; (3) I knew it was stolen when I got there; (4) I had thoughts it was stolen;
Stark County, Case No. 2016CA00092                                                           4


(5) Everything didn't add up; (6) I had a good idea it was stolen; and (7) I knew, but I didn't

ask.

       {¶8}   The jury found Octavio guilty of theft. The trial court sentenced Octavio to

serve one hundred eighty days in the Stark County Jail with all but twenty days

suspended on condition of Octavio's good behavior for two years. Octavio was also

sentenced to pay court costs and restitution if necessary to Jared Smith. Furthermore,

Octavio was referred to TASC for an evaluation and was ordered to direct probation for

two years.

                                        Assignment of Error

       {¶9}   Octavio raises one assignment of error,

       {¶10} “I. THE TRIAL COURT ERRED IN ADOPTING THE GUILTY FINDINGS

THE FINDING WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.”

                                              Analysis

       {¶11} In his sole assignment of error, Octavio argues that his conviction is against

the manifest weight of the evidence produced by the state at trial and further, Octavio

challenges the sufficiency of the evidence.

       {¶12} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming
Stark County, Case No. 2016CA00092                                                            5

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,

¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.

       {¶13} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 684 N.E.2d 668, 1997-Ohio–355. 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. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue, which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law

Dictionary (6th Ed. 1990) at 1594.

       {¶14} 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 fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982).          However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,
Stark County, Case No. 2016CA00092                                                       6


reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

                                           ***

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent with

      the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶15} R.C. 2913.02 theft, provides,

             (A) 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:

             (1) Without the consent of the owner or person authorized to give

      consent;

             (2) Beyond the scope of the express or implied consent of the owner

      or person authorized to give consent;

             (3) By deception;

             (4) By threat;
Stark County, Case No. 2016CA00092                                                           7


              (5) By intimidation.

       {¶16} Ohio Revised Code Section 2901.22(B) sets forth the definition of how and

when a person acts knowingly,

              A person acts knowingly, regardless of purpose, when the person is

       aware that the person's conduct will probably cause a certain result or will

       probably be of a certain nature. A person has knowledge of circumstances

       when the person is aware that such circumstances probably exist. When

       knowledge of the existence of a particular fact is an element of an offense,

       such knowledge is established if a person subjectively believes that there is

       a high probability of its existence and fails to make inquiry or acts with a

       conscious purpose to avoid learning the fact.

       {¶17} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Johnson, 56 Ohio St.3d 35, 38,381 N.E.2d 637(1978)

citing State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313(1936): State v. Rojas, 64 Ohio

St.3d 131, 139, 592 N.E.2d 1376(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763

N.E.2d 695(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant

acted knowingly is a subjective one, but it is decided on objective criteria.” Id. citing State

v. Adams, 4th Dist. Ross No. 94 CA 2041, 1995 WL 360247(June 8, 1995) and State v.

Paidousis, 10th Dist. Franklin No. 00AP-118, 2001 WL 436079 (May 1, 2001). See also,

State v. Butler, 5th Dist. Holmes No. 2012-CA-7, 2012-Ohio-5030, ¶25.

       {¶18} In the case at bar, the record shows that Octavio knew the laptop did not

belong to him or the co-defendant. Further, Octavio was aware that the co-defendant did
Stark County, Case No. 2016CA00092                                                        8


not reside at the home where the laptop was taken. Additionally, Octavio made several

statements to the investigating sergeant that he knew the laptop was stolen.            For

example, Octavio stated, "I knew, but I didn't ask," referring to whether the computer was

stolen. During the video of his second statement to Sergeant Weidman, Octavio states,

(1) I did find out the computer was stolen when we got down there; (2) I had a good idea

it was stolen because everything seemed fishy; (3) I knew it was stolen when I got there;

(4) I had thoughts it was stolen; (5) Everything didn't add up; (6) I had a good idea it was

stolen; and (7) I knew, but I didn't ask. Octavio’s statements are evidence that he and

his co-defendant did with purpose to deprive the owner of property or services knowingly

obtained or exerted control over the laptop without the consent of the owner or person

authorized to give consent; Octavio’s failure "to make inquiry" or act "with a conscious

purpose to avoid learning the fact" do not excuse this criminal behavior. See R.C.

2901.22(B).

       {¶19} Octavio took the laptop inside the dealer’s home, exchanged the laptop for

drugs, returned to Ms. Larson’s home and consumed the drugs with his co-defendant.

Octavio was present when an individual called the home and requested the password for

the computer. Neither he nor his co-defendant knew the laptop’s password.

       {¶20} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Octavio committed the offense of theft.

       {¶21} We hold, therefore, that the state met its burden of production regarding

each element of the crime of theft and, accordingly, there was sufficient evidence to

support Octavio’s conviction.
Stark County, Case No. 2016CA00092                                                         9


       {¶22} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.

2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212(1967).

       {¶23} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
Stark County, Case No. 2016CA00092                                                      10


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. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

      {¶24} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

      {¶25} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).           Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
Stark County, Case No. 2016CA00092                                                       11

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

       {¶26} In the case at bar, the jury heard the witnesses, viewed the video of

Octavio’s statements and heard Octavio’s arguments concerning his lack of knowledge.

       {¶27} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Octavio of the

charge.

       {¶28} Based upon the foregoing and the entire record in this matter, we find

Octavio’s conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the jury appears to have fairly and impartially decided the matters before

them. The jury as a trier of fact can reach different conclusions concerning the credibility

of the testimony of the state’s witnesses and Octavio and his arguments. This court will

not disturb the jury's finding so long as competent evidence was present to support it.

State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978).            The jury heard the

witnesses, evaluated the evidence, and was convinced of Octavio’s guilt.

       {¶29} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime of theft beyond a reasonable doubt.

       {¶30} Octavio’s first assignment of error is overruled.
Stark County, Case No. 2016CA00092                                             12


      {¶31} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio is affirmed.




By Gwin, J.,

Farmer, P.J., and

Wise, J., concur
