[Cite as State v. Alexander, 2018-Ohio-1433.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                   )   CASE NO. 16 MA 0113
                                                )
        PLAINTIFF-APPELLEE                      )
                                                )
VS.                                             )   OPINION
                                                )
THEODORE ALEXANDER                              )
                                                )
        DEFENDANT-APPELLANT                     )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 13 CR 1154

JUDGMENT:                                           Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Atty. John P. Laczko
                                                    3685 Stutz Drive, Suite 100
                                                    Canfield, Ohio 44406


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                    Dated: April 12, 2018
[Cite as State v. Alexander, 2018-Ohio-1433.]
WAITE, J.


        {¶1}     Appellant Theodore Alexander was convicted of murder and felonious

assault following a jury trial in the Mahoning County Court of Common Pleas. The

charges stem from an incident that occurred on September 29, 2013, after the body

of Ivan West (“West”) was found dead from a stab wound to the chest in the dining

room of Appellant’s apartment.

        {¶2}     Appellant timely raises two assignments of error on appeal. First, he

alleges that statements he made to the police on the night of the incident and on

October 22, 2013 should have been suppressed since he did not knowingly,

voluntarily or intelligently waive his Miranda rights. Second, Appellant alleges that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence. The record reflects that Appellant’s statements to the police

were made after he executed a form waiving his Miranda rights and that Appellant

acknowledged he understood the rights he was waiving. Further, the state presented

sufficient evidence that Appellant committed murder and the manifest weight of the

evidence established beyond a reasonable doubt that Appellant committed the

offenses for which he was convicted. Accordingly, his arguments on appeal lack

merit and are overruled. The judgment of the trial court is affirmed.

                                  Factual and Procedural History

        {¶3}     At 1:19 a.m. on September 29, 2013, Youngstown Police Department

Officer Anthony Congemi (“Congemi”) responded to a report that there had been a

stabbing at 107 Hilton Avenue in Youngstown. Congemi proceeded to the address,

the upper floor of a duplex, where he found West lying face down on the dining room
                                                                                -2-

floor. West appeared to be alive when Congemi arrived. Appellant and his neighbor,

Mario Townsend (“Townsend”) were also present in the apartment.           Congemi

determined that Appellant resided at the apartment. Emergency services arrived and

Congemi and another officer, Anthony Marzullo (“Marzullo”), began to process the

crime scene.        A call was also placed to Detective Sergeant Ronald Rodway

(“Rodway”), who was assigned to investigate the incident. When Rodway arrived at

the scene he spoke to Appellant. Appellant told Rodway that he heard a knock at his

downstairs door. Answering the knock, he saw West, whom he knew, at the door.

West was holding his chest but did not speak. After they walked upstairs, West

informed Appellant he had been stabbed “down the street” and then collapsed on the

dining room floor. Appellant went next door to get his neighbor, Townsend, who

instructed Appellant to call 911.    Townsend and Appellant proceeded back to

Appellant’s dining room and awaited the arrival of emergency services. Appellant

indicated to Rodway that before the stabbing occurred, he had not seen West for a

week.

        {¶4}   Rodway also spoke to Townsend and Cathy Howell (“Howell”),

Appellant’s girlfriend who also resided at the apartment. Townsend confirmed that

Appellant had come to his apartment looking for help.      Contrary to Appellant’s

statement, however, Howell told Rodway that West had been at the apartment just

two days earlier.

        {¶5}   Rodway testified that due to the conflicting statements as to when

Appellant had last seen West, and Appellant’s nervous appearance at the scene, he
                                                                                    -3-

asked Appellant to accompany him to the police station to make a formal statement.

During this second interview, Appellant told Rodway that once he and West walked

up to the dining room together, West took off his shirt before he collapsed on the

floor. Appellant went into his bathroom and got dressed before going to Townsend’s

apartment for help. When Appellant and Townsend came back to the apartment,

West appeared to still be alive. Appellant then said that West may have spent the

night at his apartment two days earlier, but Appellant was not sure because he was

staying at another house in the neighborhood, putting up drywall. Rodway asked for

information about the homeowners of this property so that they could be interviewed.

Appellant stated that he did not want to give this information, because he did not

want these homeowners to become involved. After being pressed further by Rodway

for the information, Appellant changed his story, now saying that he was home on the

night that Howell told police West spent the night, but that he was in the other

bedroom with his girlfriend and did not know for sure whether West was there.

      {¶6}   On October 22, 2013, Appellant was summoned to the Youngstown

Police Department for a third interview with Rodway. During this interview, Appellant

told Rodway that after West arrived at his apartment, he sent West upstairs alone

while he went to Townsend’s apartment for help. When Appellant arrived back at his

apartment with Townsend, they found West lying on the dining floor with his shirt off,

bleeding but apparently still alive. Appellant stated at this interview that West never

told him that he had been stabbed, but Appellant noticed West was holding his chest

when he arrived.
                                                                                   -4-

       {¶7}   On October 31, 2013, Appellant was charged with two counts of murder

and one count of felonious assault. On December 10, 2014, Appellant’s counsel filed

a motion to suppress, seeking to suppress four separate pieces of evidence: (1) the

statements Appellant made to police officers on September 29, 2013 and October

22, 2013; (2) evidence collected from Appellant’s apartment on the night of the

incident; (3) evidence obtained from Appellant’s shirt which was seized from

Appellant on the night of the incident; and (4) evidence obtained from a search of

Appellant’s cell phone.

       {¶8}   A hearing on the motion to suppress was held on April 2, 2015. The

trial court ordered both parties to file post hearing memorandums. The trial court

denied all of the requests with the exception of the request to suppress evidence

from Appellant’s cell phone. Following a jury trial, Appellant was convicted of murder

in violation of R.C. 2903.02(B) and felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree. The trial court merged the counts and

sentenced Appellant to a prison term of fifteen years to life.

                           ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE

       PREJUDICE OF APPELLANT AND VIOLATED HIS RIGHT TO DUE

       PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT BY

       OVERRULING         APPELLANT'S      MOTION       TO       SUPPRESS   AND

       ADMITTING INTO EVIDENCE APPELLANT'S STATEMENTS GIVEN

       TO POLICE ON SEPTEMBER 29, 2013, AND OCTOBER 22, 2013.
                                                                                      -5-

      {¶9}   Appellant’s first assignment of error addresses the trial court’s failure to

grant his motion to suppress as it relates to the interviews conducted by police on

September 29, 2013 and October 22, 2013. Appellant asserts that the state failed to

establish that he possessed a full awareness of his Miranda rights, or of the

consequences of waiving those rights, prior to speaking with police.

      {¶10} The hearing on the motion to suppress was held on April 2, 2015. The

trial court denied all of Appellant’s requests to suppress evidence with the exception

of the evidence retrieved from his cell phone. Testimony was provided by Rodway.

Two written Miranda waivers were admitted into evidence at the hearing. Rodway

testified about obtaining a search warrant and providing Appellant with Miranda

warnings before each interview. The court held that based on the totality of the

circumstances, Appellant knowingly waived his Miranda rights prior to making his

statements to the police on September 29, 2013 and October 22, 2013. While the

trial court concluded that all of the evidence gathered from Appellant’s apartment,

including Appellant’s shirt, was properly obtained by the police through valid

searches, because the police lacked probable cause to search his phone any

evidence resulting from the cell phone search would be suppressed.

      {¶11} An appellate court review of a ruling on a motion to suppress involves

mixed questions of law and fact. “In a hearing on a motion to suppress evidence, the

trial court assumes the role of trier of fact and is in the best position to resolve

questions of fact and evaluate the credibility of witnesses.” State v. Venham, 96 Ohio

App.3d 649, 653, 645 N.E.2d 831 (1994). We must accept the trial court’s findings
                                                                                  -6-

as true if they are supported by competent, credible evidence. State v. Winand, 116

Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996), citing Tallmadge v. McCoy, 96

Ohio App.3d 604, 608, 645 N.E.2d 82 (9th Dist.1994). Thereafter, an appellate court

must independently determine whether the facts satisfy the applicable legal standard.

State v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141 (4th Dist.1993), overruled

on other grounds as stated in Village of McComb v. Andrews, 3d Dist. No. 5-99-41,

2000-Ohio-1663 (Mar. 22, 2000).

      {¶12} A review of the record reveals that it contains Miranda waivers signed

by Appellant on September 29, 2013 and again on October 22, 2013. Despite the

undisputed existence of these signed waivers, Appellant argues that the statements

he made to the police should be suppressed. Appellant argues that waiver of his

Miranda rights could not have been voluntary for three reasons: (1) Appellant was

under the influence of alcohol on the night of the incident; (2) Appellant was

inappropriately transferred from jail on October 22, 2013 for the interview with

Rodway, because he had not asked to speak with Rodway; and (3) the police video

of this interview contains no discussion about Appellant’s decision to waive his

Miranda rights, but only about whether he understood those rights.

      {¶13} A suspect’s waiver of his right not to incriminate himself must be made

voluntarily, knowingly and intelligently. State v. Shakoor, 7th Dist. No. 01 CA 121,

2003-Ohio-5140, ¶ 18, citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966). The record reveals that Appellant executed a written waiver of

his Miranda rights on both September 29, 2013 and October 22, 2013. “[E]vidence of
                                                                                      -7-

a written waiver form signed by the accused is strong proof that the waiver is valid.”

State v. Eley, 77 Ohio St.3d 174, 178. 672 N.E.2d 640 (1996).

      {¶14} “A suspect’s decision to waive his privilege against self-incrimination is

made voluntarily absent evidence that his will was overborne and his capacity for

self-determination was critically impaired because of coercive police conduct.” State

v. Otte, 74 Ohio St.3d 555, 562, 660 N.E.2d 711 (1996), citing Colorado v. Connelly

479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Evidence of coercive

police activity is a necessary predicate to finding that a confession is not voluntary

pursuant to Miranda. Connelly, supra.

      {¶15} A trial court must consider the totality of the circumstances in making a

determination as to whether the defendant has validly waived his Miranda rights.

State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), judgment vacated on

other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). The totality of

the circumstances includes the age, mentality, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; whether any physical

deprivation or mistreatment existed; and the existence of threat or inducement. Id.

      {¶16} Appellant contends there was evidence that he was under the influence

of alcohol on the night of the incident. He states that he consumed two beers before

the incident, and that his physical appearance in the videotaped interview lends

credence to his claim that he was intoxicated.     He claims that because he was

intoxicated, he could not have validly waived his Miranda rights. This Court has held

that the mere presence of drugs or alcohol in a person’s system will not, in itself,
                                                                                   -8-

render a confession inadmissible. State v. Foden, 7th Dist. No. 08 CO 44, 2009-

Ohio-6532, ¶ 22.    Evidence must be presented that drugs or alcohol “sufficiently

impaired the confessor’s ability to reason.” Id.

       {¶17} Appellant’s assertion that he was sufficiently impaired by alcohol on the

night of the incident is not borne out by the evidence in the record. There was no

testimony at either the suppression hearing or at trial that Appellant was under the

influence of drugs or alcohol. Three police officers testified at trial. None of them

were asked on direct or cross-examination about Appellant’s appearance or whether

he appeared to be under the influence of drugs or alcohol. There is nothing in the

record to indicate that Appellant consumed any alcohol on the night in question which

might impair his ability to waive his Miranda rights.

       {¶18} Appellant contends his second Miranda waiver was invalid because

when he was summoned for a second interview with Rodway, while he was

admittedly read his Miranda rights, there “were no safeguards herein to insure

Appellant comprehended those rights or validly waived them.” (8/22/17 Appellant’s

Brf., p. 8.)   He appears to complain that he was compelled to speak to police,

because he was taken to see Rodway and had not first voluntarily asked to speak

with Rodway. Appellant presents no evidence that the signed waiver executed by

him on either September 29, 2013 or October 22, 2013 was obtained by use of any

coercive police activity. Appellant does not cite to anything in the record which may

indicate that the police engaged in any activity that could be deemed coercive.
                                                                                    -9-

       {¶19} Rodway’s testimony at the suppression hearing was virtually identical to

his testimony. A review of his testimony reveals that Appellant made the statements

he sought to suppress during three different conversations with Rodway. Rodway

testified that Appellant gave him three different variations of the incident in each of

the interviews. Rodway testified that since Appellant’s comments to him at the scene

appeared to differ from those of his live-in girlfriend, he elected to have Appellant

come to the station that night to give a formal statement. (6/28/16 Tr., p. 342.) Also,

at the scene Appellant told Rodway that he had not seen West in a week. Howell

stated that West had been at the apartment two days earlier.

       {¶20} Rodway testified that prior to the interview at the police station on the

night of the incident, Appellant was read his Miranda rights and that Appellant agreed

to talk with police officers. (6/28/16 Tr., p. 350.) Appellant does not dispute this

evidence. Nor does he dispute that he signed a written waiver of his Miranda rights

that night before providing his statement to the police. Appellant changed his story

during his second interview with regard to when he last saw West.

       {¶21} Rodway testified that he interviewed Appellant again on October 22,

2013 at the Youngstown police station. Rodway again read Appellant his Miranda

rights and Appellant again agreed to talk to him. Appellant does not contest this

evidence or that he executed a second written waiver of his Miranda rights. During

this third encounter, Appellant changed his story again regarding how the events

transpired on the night of the incident.
                                                                                     -10-

       {¶22} The trial court clearly believed Rodway’s testimony at the suppression

hearing was credible.     There was no conflicting evidence presented.         Rodway’s

testimony at the suppression hearing was the same as his trial testimony. Based on

the record before us, the trial court committed no error in refusing to grant Appellant’s

motion to suppress his statements to police. Appellant’s first assignment of error

lacks merit and is overruled.

                           ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER

       THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS

       CONVICTIONS FOR MURDER AND FELONIOUS ASSAULT WERE

       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE

       JURY'S VERDICT WAS INCONSISTENT WITH THE EVIDENCE AND

       TESTIMONY PRESENTED AT TRIAL.

       {¶23} Appellant appears to argue both sufficiency and manifest weight of the

evidence in his second assignment in that he mentions both.

       {¶24} Sufficiency of the evidence is a legal question dealing with adequacy.

State v. Pepin–McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476,

¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).

       {¶25} “Sufficiency is a term of art meaning that legal standard which is applied

to determine whether a case may go to the jury or whether evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. No.
                                                                                   -11-

07 JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124

N.E.2d 148 (1955). To discharge the state's burden when prosecuting a criminal

offence, “ ‘probative evidence must be offered’ on ‘every material element which is

necessary to constitute the crime.’ ” State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO

5, 2013-Ohio-5774, ¶ 8, citing State v. Martin, 164 Ohio St. 54, 57, 128 N.E.2d 7

(1955). In a sufficiency review, a reviewing court does not determine “whether the

state's evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.” State v. Rucci, 7th Dist. No. 13 MA 34, 2015-

Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468, ¶ 34.

       {¶26} Appellant was convicted of violating both R.C. 2903.02(B) and R.C.

2903.11(A)(2). R.C. 2903.02(B) states: “No person shall cause the death of another

as a proximate result of the offender’s committing or attempting to commit an offense

of violence that is a felony of the first or second degree.”

       {¶27} R.C. 2903.11(A)(2) provides in relevant part that:

       No person shall knowingly do either of the following:


       ***


       (2) Cause or attempt to cause physical harm to another or to another’s

       unborn by means of a deadly weapon or dangerous ordnance.

       {¶28} Appellant contends the state failed to present sufficient evidence at trial

showing that he committed the offense.          He complains that only circumstantial
                                                                                   -12-

evidence was presented, but no direct eyewitness or other direct evidence to link

Appellant to this crime.

       {¶29} The state highlights the testimony from a number of police officers that

were present at the scene and assisted in conducting the investigation. Marzullo and

Congemi both testified that they conducted a thorough search of Appellant’s

residence including the exterior and stairwell, looking for blood evidence with which

to corroborate Appellant’s account that West told him he was stabbed elsewhere.

Rodway testified that the area outside was “very well lit” on the night of the incident

and no blood evidence was found outside or in the stairwell. (Tr., p. 344.) The only

blood evidence that was found was located in Appellant’s dining area and the kitchen

sink near where West’s body was found. (Tr., p. 212.) Marzullo testified that a

number of knives were discovered in Appellant’s apartment, including a knife in the

kitchen sink which appeared to have a number of blood droplets nearby, a knife in

one bedroom of Appellant’s apartment, and a third in a second bedroom.

       {¶30} Andrea Weisenburger, a forensic scientist assigned to the case,

testified that she analyzed two of the knives and a swab of the blood from the kitchen

sink area. She also had DNA standards from both West and Appellant. The kitchen

knife blade results were inconclusive, because there was insufficient DNA for testing.

The DNA profile on the kitchen knife handle was consistent with Appellant’s DNA

profile. (Tr., pp. 322-323.) West’s DNA profile was excluded from the handle of the

kitchen knife and from a knife found in one of the bedrooms. (Tr., pp. 330-331.)
                                                                                  -13-

        {¶31} Rodway testified that he spoke with Appellant on three occasions. The

first was at the scene, where Appellant gave information as to when he last saw West

that differed from the information provided by his neighbor and from his live-in

girlfriend.   For that reason, Rodway conducted a formal interview at the station.

Appellant’s story at the station changed in regard to when he last saw West and also

as to how the events unfolded at the scene. Appellant originally stated that West

showed up at his door claiming to be stabbed in the street and that he had not

previously seen West in a week. Appellant and West walked upstairs together where

West took off his shirt and collapsed on the floor. Appellant said he then went to get

Townsend for help.       During the second interview, Appellant stated that West

appeared at his door but said nothing. The two went upstairs together where West

took off his shirt and collapsed on the floor.    Appellant went to the bathroom to

change and then went to get Townsend.

        {¶32} We note that this second statement of events differs only slightly to the

information provided at the scene. However, when confronted by Rodway during the

interview with information that Appellant may have seen West only a few days prior to

the incident, rather than a week as Appellant earlier stated, Appellant said that he

had been drywalling someone’s house and did not know whether West had made an

overnight stay at Appellant’s home. When questioned about contact information for

the homeowners for whom Appellant was allegedly hanging drywall, Appellant initially

refused to answer, saying he wanted to avoid getting those individuals involved.

Appellant then changed his story again, dropping his story about drywalling and now
                                                                                   -14-

saying that West may have made an overnight visit to Appellant’s home a few days

earlier, but Appellant had stayed in his bedroom and did not see West.

      {¶33} Rodway testified that he spoke with Appellant a third time on October

22, 2013, at which point Appellant changed his story again.         (Tr., pp. 365-366.)

Appellant now claimed that he sent West upstairs alone while Appellant went to

Townsend’s apartment to seek help. Appellant and Townsend returned together to

find a shirtless West, collapsed on Appellant’s dining room floor but still breathing.

Appellant stated in this interview that West did not say anything about being stabbed

when Appellant initially encountered him, but was holding his chest.

      {¶34} The state also presented testimony of Dr. Joseph Ohr (“Ohr”) who had

performed the autopsy on West. Ohr testified that West died from a stab wound

which penetrated his heart and went into the right ventricle. (Tr., p. 284.) Ohr also

testified that the knife found in Appellant’s kitchen sink was “most consistent with the

decedent’s death.” (Tr., p. 289.)

      {¶35} Appellant contends that his story of events remained consistent

throughout, but this is clearly contradicted by Rodway.          The state presented

testimony from at least three other witnesses which contradicted Appellant’s

statements to the police, and Appellant’s statements continued to change over time.

The kitchen knife found in Appellant’s kitchen sink was consistent with the decedent’s

wounds. No blood was found outside the apartment or in the stairwell, but was found

in Appellant’s dining room and kitchen. This record reflects that the state presented

sufficient circumstantial evidence that, if believed, would lead a reasonable person to
                                                                                    -15-

conclude that Appellant caused West’s death. Appellant’s sufficiency of the evidence

argument is without merit.

       {¶36} Appellant also contends his convictions were against the manifest

weight of the evidence.      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.” (Emphasis deleted.) Thompkins at 387. “Weight is not

a question of mathematics, but depends on its effect in inducing belief.” (Emphasis

deleted.) Id.

       {¶37} When reviewing a manifest weight of the evidence argument, a

reviewing court must examine the entire record, consider the credibility of the

witnesses 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.         Id. at 387, 389.    Only in

exceptional circumstances will a conviction be reversed as against the manifest

weight of the evidence. Id. This strict test for manifest weight acknowledges that

credibility is generally the province of the factfinder, who sits in the best position to

accurately assess the credibility of the witnesses. State v. Hill, 75 Ohio St.3d 195,

204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967).

       {¶38} When, as here, there are two fairly reasonable versions of the events

which occurred and neither is wholly unbelievable, it is not the province of the
                                                                                     -16-

appellate court to determine which version should be believed. State v. Walenciej,

7th Dist. No. 07 JE 006, 2007-Ohio-7206, ¶ 42.

       {¶39} In the instant matter the jury heard all of the testimony, including

Appellant’s, and was presented with all of the evidence.          Despite Appellant’s

assertion, a lack of direct evidence is inconsequential in a manifest weight challenge

as it does not undermine credible testimony and other circumstantial evidence. State

v. Frye, 11th Dist. No. 2005-A-12, 2006-Ohio-1857, ¶ 41. This record also shows

that the manifest weight of the evidence presented by the state supported Appellant’s

convictions. Accordingly, Appellant’s second assignment of error is without merit.

       {¶40} Based on the foregoing, Appellant’s assignments of error lack merit and

the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
