[Cite as State v. King, 2017-Ohio-7731.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 16 CAA 11 0050
CALLISTA KING

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 16 CR I 03 0155


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 21, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         JOEL M. SPITZER
PROSECUTING ATTORNEY                           97 South Liberty Street
AMELIA BEAN-DEFLUMER                           Powell, Ohio 43065
ASSISTANT PROSECUTOR
140 N. Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 16 CAA 11 0050                                                   2

Wise, J.

       {¶1}   Defendant-appellant Callista King appeals her conviction entered in the

Delaware County Common Pleas Court on one count each of breaking and entering, theft,

possessing criminal tools and criminal damaging, following a jury trial.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                                  STATEMENT OF THE CASE

       {¶3}   The relevant facts are as follows:

       {¶4}   On or about January 19, 2016, Aspen Ski and Board was broken into. (T.

at 188-191). The burglary was captured on video and showed two men getting out of a

vehicle in the Aspen Ski and Board parking lot, throwing an object through the door of the

business and stealing property from inside. (T. at 147-148). The vehicle was identified as

belonging to Appellant Callista King. (T. at 149-152).

       {¶5}   At trial, testimony was presented that a person matching Appellant's

description was in the vehicle shortly before the crime was committed. (T. at 470-471).

Testimony further established that Appellant was the girlfriend of one of the co-

defendants. (T. at 262). Testimony was also admitted that Appellant stated she was

present at the scene of the burglary, that she exited her vehicle to shut the trunk, and that

she observed clothing in her trunk. (T. at 275). Finally, multiple items of clothing still

bearing Aspen Ski and Board tags were found in her vehicle by police. (T. at 262).

       {¶6}   On March 23, 2016, Defendant-Appellant Callista M. King was indicted on

Count One (1): Breaking and Entering, in violation of R.C. §2911.13(A), a Fifth Degree

Felony; Count Two (2): Theft, in violation of R.C. §2913.02(A)(1), a Fifth Degree Felony;

Count Three (3): Possessing Criminal Tools, in violation of R.C. §2923.24(A), a Fifth
Delaware County, Case No. 16 CAA 11 0050                                                 3


Degree Felony; and Count Four (4): Criminal Damaging, in violation of R.C.

§2909.06(A)(1), a Second Degree Misdemeanor. Defendant-Appellant was indicted

along with two other Co-Defendants, Mark E. Basford, Jr. and Jason S. Manley.

        {¶7}   Defendant-Appellant King was offered the option of filing a Motion for

Intervention in Lieu of Conviction but summarily dismissed that offer, electing to proceed

to trial.

        {¶8}   Defendant-Appellant proceeded to a jury trial July 28, 2016.

        {¶9}   At trial, the State presented the testimony of Detective Chadwick Sloan,

Hannah Rice, Gil Harris, Stacey Kapella, and Detective Rusty Yates. Counsel for

Defendant-Appellant called Jeffrey Mabrey, an employee of Auto Rescue.

        {¶10} The jury trial concluded on August 1, 2016. Following deliberations, the jury

found Defendant-Appellant guilty on all four counts as charged.

        {¶11} On October 6, 2016, the matter proceeded to sentencing. The trial court

sentenced Defendant-Appellant to Community Control Sanctions for a period not to

exceed two (2) years. The trial court imposed a Residential Community Sanction of 30

days in the Delaware County Jail.

        {¶12} Defendant-Appellant now appeals, assigning the following errors for review:

                                  ASSIGNMENTS OF ERROR

        {¶13} “I. DEFENDANT-APPELLANT'S CONVICTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

        {¶14} “II. DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL AND A FAIR TRIAL UNDER THE SIXTH AND
Delaware County, Case No. 16 CAA 11 0050                                                   4


FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE

OHIO CONSTITUTION, ARTICLE I, SECTION 10.

       {¶15} “III. DEFENDANT-APPELLANT WAS DEPRIVED OF HER RIGHTS TO

DUE PROCESS AND A FAIR TRIAL UNDER THE FEDERAL AND STATE

CONSTITUTIONS BY THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN

THIS CASE.”

                                                 I.

       {¶16} In her First Assignment of Eror, Appellant argues that her conviction was

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

       {¶17} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶18} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶19} Here, Appellant concedes that the evidence established that Aspen Ski and

Board was broken into and that her two male co-defendants were present at the scene of
Delaware County, Case No. 16 CAA 11 0050                                                 5


the crime. However, Appellant argues that the evidence failed to establish that she knew

or should have known that her co-defendants were planning to commit the charged

offenses. Instead, she claims that the evidence supports her defense that she was either

asleep or passed out for the duration of the crime.

       {¶20} Upon review, we find that the State presented sufficient evidence that

Appellant was complicit in aiding and abetting in the offenses charged. The investigating

detective testified that Appellant admitted to him that she was present in the car at the

time the offense was being committed, and that she helped close the trunk after the stolen

goods were placed there. (T. at 275). Testimony was also presented that the property

stolen from Aspen Ski and Board was found in Appellant’s vehicle. (T. at 262). Further,

the security video footage reveals that the item used to smash the door was transported

to the crime scene in Appellant’s vehicle.

       {¶21} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witnesses' 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. McGregor, 5th Dist. Ashland No. 15–COA–023, 2016-Ohio-3082,

2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000

WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness'

testimony, but may accept only portions of it as true. Id. Our review of the entire record

reveals no significant inconsistencies or other conflicts in appellee's evidence that would

demonstrate a lack of credibility of appellee's witnesses.
Delaware County, Case No. 16 CAA 11 0050                                                 6


      {¶22} Based upon the evidence presented at trial, Appellant’s convictions were

not against the manifest weight nor based upon insufficient evidence.

      {¶23} Appellant’s First Assignment of Error is overruled.

                                                II.

      {¶24} In her Second Assignment of Error, Appellant claims that she was denied

the effective assistance of counsel. We disagree.

      {¶25} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955).

      {¶26} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

      {¶27} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.
Delaware County, Case No. 16 CAA 11 0050                                                    7


       {¶28} Here, Appellant first argues that her counsel was ineffective in failing to

raise a Crim.R. 29 motion for acquittal at the close of the State’s case.

       {¶29} As we have resolved Appellant's contention her conviction was not

supported by sufficient evidence and against the manifest weight of the evidence;

Appellant cannot demonstrate the outcome of the proceeding would have been different

had her counsel made a motion for acquittal.

       {¶30} Appellant also argues that her counsel was ineffective in failing to request

that the trial court sever her trial from the trial of her co-defendants. However, Appellant

has failed to present any argument in support of such a motion or any supporting

argument or evidence regarding the reasonable probability of a different outcome as a

result of a separate trial.

       {¶31} Ultimately we find no reasonable probability the outcome of the trial would

have been different had such motions been raised. See, State v. Graber, 5th Dist. No.

2002CA00014, 2003–Ohio–137, ¶154, appeal not allowed, 101 Ohio St.3d 1466, 2004–

Ohio–819, 804 N.E.2d 40.

       {¶32} Appellant’s Second Assignment of Error is overruled.

                                                 III.

       {¶33} In her Third and final Assignment of Error, Appellant argues that the

cumulative effect of the errors in this case deprived her of a fair trial, warranting reversal

of her convictions. We disagree.

       {¶34} Based upon our analysis and disposition of the First and Second Assigned

Errors, we overrule Appellant’s Third Assignment of Error.
Delaware County, Case No. 16 CAA 11 0050                                       8


      {¶35} For the foregoing reasons, the judgment of the Court of Common Pleas,

Delaware County, Ohio, is affirmed.


By: Wise, J.

Delaney, P. J., and

Baldwin, J., concur.




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