[Cite as State v. Miller, 2019-Ohio-5024.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                    :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
JUSTIN MILLER                                 :       Case No. 2019 CA 00022
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Municipal Court,
                                                      Case No. 2018 CRB 01896




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     December 3, 2019




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

J. MICHAEL KING                                       TODD W. BARSTOW
40 West Main Street                                   538 South Yearling Road
Fourth Floor                                          Suite 202
Newark, OH 43055                                      Columbus, OH 43213
Licking County, Case No. 2019 CA 00022                                                      2



Wise, Earle, J.

       {¶ 1} Defendant-appellant Justin Miller appeals the March 19, 2019 judgment of

conviction and sentence of the Licking County Municipal Court. Plaintiff-appellee is the

state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On July 11, 2019, appellant was employed by Englefield Oil Company which

operates the Duke and Duchess gas stations. Appellant worked third shift, from 10:00

p.m. to 6:00 a.m., at the Newark Duke and Duchess on Mt. Vernon Road.

       {¶ 3} On that evening, store manager Chris Maring was awakened around 12:45

a.m. by Tyco Security alerting him to the fact that there was an alarm pulled at his store.

       {¶ 4} Newark Police Department Officer James Wells was the first officer on the

scene. Maring provided Wells with the store security video. Wells and Newark Police

Detective Jarrod Conley reviewed the video. The officers noted several oddities.

Appellant appeared calm and was smiling during the robbery, and the robber laid his gun

on the counter in order to take cash from the register. Then, after the robber left, appellant

waited 5 minutes to activate the security alarm. After viewing the video, and after Conley

had a conversation with appellant, both officers suspected the robbery had been staged.

       {¶ 5} After further investigation, Anthony Marshall, a friend of appellant, became

a person of interest. When Conley found Marshall, he was wearing the same pants he

wore during the robbery. Marshall initially denied any involvement. But once advised that

a staged robbery would carry less serious charges than an actual robbery, and after he

consulted with his mother, Marshall admitted that he, appellant, and another friend,

Joseph Wymer, had staged the robbery. Marshall admitted he was the robber in the store
Licking County, Case No. 2019 CA 00022                                                  3


surveillance video and that Wymer had drove him to and from the scene. Wymer later

admitted his role as well. The three men split the proceeds of the robbery.

      {¶ 6} Leann Horwell, director of retail operations for Englefield Oil was tasked

with calculating the loss resulting from the robbery. She determined a total of $675 was

taken from two registers and the safe.

      {¶ 7} Appellant was later charged by complaint with one count each of complicity

to commit theft, making false alarms, and falsification, misdemeanors of the first degree,

and obstructing official business, a misdemeanor of the second degree.

      {¶ 8} Appellant pled not guilty to the charges and opted to proceed to a jury trial,

which took place on March 7, 2019. The jury found appellant guilty as charged.

      {¶ 9} On March 19, 2019, the trial court conducted a sentencing hearing. The

court merged complicity to theft, falsification and obstructing official business and

imposed an aggregate sentence of 180 days with 170 days suspended.

      {¶ 10} Appellant filed an appeal, and the matter is now before this court for

consideration. He raises one assignment of error:

                                            I

      {¶ 11} "THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO

CONSTITUTION BY FINDING HIM GUILTY OF THEFT; COMPLICITY; OBSTRUCTING

OFFICIAL BUSINESS; FALSIFICATION OF MAKING FALSE ALARMS AS THOSE

VERDICTS WERE NOT SUPPORTED BY THE SUFFICIENT EVIDENCE AND WERE

ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
Licking County, Case No. 2019 CA 00022                                                      4


       {¶ 12} In his sole assignment of error, appellant argues his convictions are against

the manifest weight and sufficiency of the evidence. We disagree.

       {¶ 13} On review for sufficiency, a reviewing court is to examine the evidence

presented at trial to determine whether such evidence, if believed, would support a

conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant

inquiry is whether, after viewing the evidence in a 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." Jenks at paragraph two of the syllabus, following Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest

weight, a reviewing court is to examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine "whether in

resolving conflicts in the evidence, the 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. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should

be exercised only in the exceptional case in which the evidence weighs heavily against

the conviction." Martin at 175.

                                  MAKING FALSE ALARMS

       {¶ 14} Appellant argues the state failed to prove his actions caused "public

inconvenience or alarm" and that therefore his conviction for making false alarms is not

supported by sufficient evidence.

       {¶ 15} Appellant was charged with making false alarms pursuant to R.C.

2917.32(A)(1) which provides no person shall "[i]nitiate or circulate a report or warning of
Licking County, Case No. 2019 CA 00022                                                  5


an alleged or impending fire, explosion, crime, or other catastrophe, knowing that the

report or warning is false and likely to cause public inconvenience or alarm; * * *"

Emphasis added.

      {¶ 16} Appellant compares this matter to our decision in State v. Wetherby, 5th

Dist. Licking No. 12CA69, 2013-Ohio-3442. In Wetherby, the appellant was living with his

friend Lee whose home was sold at sheriff's auction. When deputies arrived at the home

on a pre-arranged eviction date, Lee and Wetherby were still occupying the home, and

refused to let deputies inside or vacate the premises. The pair held officers at bay for 9

hours with threats of gun violence, and threats of suicide. Some 25 employees of the

Sheriff's Department and fire department were dispatched to Lee's home, including the

SWAT team and the hostage negotiation team.

      {¶ 17} Wetherby was charged with various crimes in connection with the incident

including inducing panic pursuant to R.C. 2917.31. That section provides:

             (A) No person shall cause the evacuation of any public place, or

             otherwise cause serious public inconvenience or alarm, by doing any

             of the following:

             (1) Initiating or circulating a report or warning of an alleged or

             impending fire, explosion, crime, or other catastrophe, knowing that

             such report or warning is false;

             (2) Threatening to commit any offense of violence;

             (3) Committing any offense, with reckless disregard of the likelihood

             that its commission will cause serious public inconvenience or alarm.
Licking County, Case No. 2019 CA 00022                                                   6


              Emphasis added.

       {¶ 18} Wetherby appealed, challenging among other things, his conviction

for inducing panic. We found the evidence presented in that matter was insufficient

to prove "that Wetherby's actions in concert with Lee or alone caused serious

public inconvenience or alarm. Officers acting in their official capacity could not

have been inconvenienced within the contemplation of R.C. 2917.31(A), simply

because they had responded to the residence, as their duties required them to do."

Whetherby, supra at ¶ 40.

       {¶ 19} This matter is distinguishable. First, making false alarms does not

require that its commission "will cause serious inconvenience or alarm," but rather

simply that it is "likely to cause public inconvenience or alarm."

       {¶ 20} Second, while appellant argues no member of the public was

inconvenienced or alarmed, the record reflects that a least 2 people were at

minimum, inconvenienced. The store manager was rousted from sleep by the

alarm call at 12:45 a.m. and required to go to the scene. T. 81, 88-89. The following

day, a retail director for Englefield Oil Company who oversees 60 stores was

required to ascertain the total loss of the alleged robbery. T. 106, 111. We therefore

find the state produced sufficient evidence to support appellant's conviction for

making false alarms.

                               REMAINING CONVICTIONS

       {¶ 21} As for his remaining convictions, appellant does not argue the state failed

to prove any one element of any offense. Rather, appellant argues the testimony of his

co-conspirators was inconsistent and incredible. It is well settled, however, that the
Licking County, Case No. 2019 CA 00022                                                      7


credibility of witnesses is a matter for the trier of fact to determine. “A defendant is not

entitled to reversal on the grounds of sufficiency of the evidence and manifest weight of

the evidence merely because inconsistent testimony was offered at trial.” State v. Garner,

10th Dist. Franklin No. 07AP-474, 2008-Ohio-944, ¶ 19, citing State v. Raver, 10th Dist.

Franklin No. 02AP-604, 2003-Ohio-958. Challenges to the sufficiency of the evidence

based upon instances of inconsistent testimony, memory defects, and the like are witness

credibility issues which are properly resolved by the trier of fact. See State v. Daniel, 10th

Dist. Franklin No. 95APA05-657, 1996 WL 11268. The jury was free to accept or reject

any or all of the testimony of the co-conspirators and to assess the credibility of those

witnesses accordingly. Moreover, the jury viewed the security video in this matter, and

were able to watch the robbery as it occurred, and could use that information to assist in

its credibility determinations.
Licking County, Case No. 2019 CA 00022                                                 8




      {¶ 22} Based on the facts noted in our statement of facts supra, and the entire

record, we find appellant's convictions are supported by sufficient evidence, and are not

against the manifest weight of the evidence. Appellant's assignment of error is therefore

overruled, and the judgment of the Licking County Court of Common Pleas is affirmed.




By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.



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