[Cite as State v. Stapleton, 2012-Ohio-4964.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

STATE OF OHIO,                        :    Case No. 12CA3477
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JEFFREY K. STAPLETON,                 :
                                      :    RELEASED 10/23/12
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecutor, and Matthew A. Wisecup, Scioto County
Assistant Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     This case stemmed from an incident in which Jeffrey Stapleton allegedly

took a guitar from the home of Donald Burke, an 84-year-old man. After a jury found

Stapleton guilty of burglary and theft from an elderly person, the trial court merged the

offenses for sentencing purposes. On appeal, Stapleton contends that the jury’s

findings of guilt were against the manifest weight of the evidence because certain

witnesses were not credible, the state’s witnesses gave conflicting testimony about the

date the incident occurred, and other people had access to the guitar. Contrary to his

argument, the state’s witnesses gave fairly consistent accounts of when the incident

happened. Moreover, we leave credibility determinations to the finder of fact. And

because the jury could reasonably return a guilty verdict based on the state’s version of

events, we cannot say that the jury clearly lost its way and created such a manifest

miscarriage of justice that we must reverse the judgment below.
Scioto App. No. 12CA3477                                                                     2


                                          I. Facts

       {¶2}   The Scioto County grand jury indicted Stapleton on one count of burglary,

a second degree felony, and one count of theft from an elderly person or disabled adult,

a fourth degree felony. Stapleton pleaded not guilty to the charges, and the matter

proceeded to a jury trial. Before trial concluded, the court granted the state’s motion to

amend the theft from an elderly person or disabled adult charge to a fifth degree felony.

       {¶3}   Donald Burke, age 84, testified he hired Stapleton to mow his lawn.

Stapleton worked one week and used Burke’s tools. One day, Burke let Stapleton in

the house for water. This was the only time he had Burke’s permission to come inside.

Stapleton walked around the house and then approached Burke and said, “[I]s that a

guitar laying in there on the bed in that case?” Burke said that it was, and Stapleton

dropped the subject. Stapleton had referred to a guitar Burke had on the bed in a spare

bedroom. Burke could not recall what kind of guitar it was but testified that it was “brand

new” and in a black case. Before Stapleton went back outside, Burke told Stapleton

that he planned to take a nap. Sometime after his nap, Burke discovered the guitar was

missing and contacted law enforcement. He could not recall the exact date this incident

occurred. Burke testified that a day or two later, he noticed other items were missing

from the home, like tools and a bank with money in it. Burke testified that he never had

contact with Stapleton after the guitar disappeared. On cross-examination, defense

counsel asked Burke who else had been to his home. Burke responded, “No one. No

one.” Then defense counsel asked if Burke had “a health care provider, a lady that

helps you -- [.]” Burke stated that he did.

       {¶4}   Sonia Floyd testified that Burke is a customer of her garbage collection
Scioto App. No. 12CA3477                                                                    3


business. She also knows Stapleton because they live in the same neighborhood. One

rainy day, she saw Stapleton coming from Burke’s driveway on a bicycle with a black

guitar case. He flagged her down for a ride. The “first thing” Floyd asked him was

whether the guitar was stolen. Stapleton said if it was, he “wouldn’t have it out in the

broad daylight.” She drove him to the trailer of someone with the last name Steele.

About an hour later, Floyd saw Stapleton again, and he flagged her down for another

ride. He no longer had the guitar case; Stapleton said he sold the guitar. Sometime

later, Burke told her that Stapleton had stolen his guitar and other items. Floyd told

Burke about her encounter with Stapleton.

       {¶5}   Afterwards, Floyd went to the hotel where Stapleton lived at to confront

him, but he was not there. She eventually did talk to Stapleton. Floyd testified that she

thought the conversation occurred after she gave law enforcement a written statement

on May 30, 2011. Floyd told him she was upset and did not appreciate “being used for

rides for stolen goods.” Stapleton denied stealing the guitar and claimed someone else

gave it to him nine years ago. Floyd testified, without objection, that she asked that

person about the guitar, and he denied giving it to Stapleton. Initially, Floyd testified

that she saw Stapleton with the case a “couple days” before she gave her statement.

Later, Floyd testified that she saw Stapleton with the guitar “a couple of weeks” before

she gave the statement. In her written statement, Floyd wrote that the incident occurred

“[a]bout two weeks ago.” Floyd denied loaning Stapleton money. Floyd testified that

she provided Stapleton with “$5 here, $7 there” in the past as gifts but would never loan

him money because “I know [Stapleton’s] not going to pay anything back.”

       {¶6}   Matthew Steele testified that he used to be friends with Stapleton. He
Scioto App. No. 12CA3477                                                                      4


testified that in May or June of 2011, Stapleton came to his home and tried to sell an

Esteban guitar to him or trade it “[f]or whatever he could get out of [it].” Steele claimed

the guitar was in “good shape” and stored in a black case. Steele declined the offer,

and Stapleton left. Steele believed he headed toward Steele’s dad’s house. Steele

later learned Stapleton sold the guitar to one of Steele’s dad’s friends. At some point,

Stapleton talked to Steele because he was “concerned about getting [the guitar] back.”

The prosecutor asked Steele why Stapleton wanted it back, and Steele testified without

objection, “I guess the gentleman that [Stapleton] stole it from filed charges and he got

in trouble for it, so he needed to get it back.” Steele admitted that a few days prior to

trial, he was arraigned, apparently for drug possession and drug trafficking charges. He

entered into an agreement with the prosecutor whereby he would plead guilty to the

drug possession charges, receive a three-year sentence, and the prosecutor’s office

would recommend his release after a year if he testified truthfully in this case and met

other requirements. Steele also admitted that he had previous convictions for breaking

and entering, assault, drug trafficking, and tampering with evidence.

       {¶7}   Steven VanHoose, a Scioto County Sheriff’s Office deputy, testified that

on May 18, 2011, he responded to a call about a theft at Burke’s home, which he

believed occurred the day before. Burke said he let Stapleton, who mowed his lawn,

inside the house for a glass of water. Once inside, Stapleton started roaming through

the house out of Burke’s sight. Later, Burke discovered his guitar missing. VanHoose

testified that it was an Esteban or Estebon guitar that Burke kept in a black case.

       {¶8}   Matthew Spencer, a Scioto County Sheriff’s Office detective, testified that

he spoke to Stapleton about the guitar in June 2011. Stapleton denied taking it. He
Scioto App. No. 12CA3477                                                                  5


admitted going to Burke’s home, where he mowed the grass and did some air

conditioning work. Stapleton claimed Floyd saw him carrying a weed eater and told law

enforcement it was a guitar case because she was mad he had not repaid a $40 loan.

       {¶9}   Stapleton testified that he worked for Burke almost two months, starting

April 26, 2011. Stapleton denied taking a guitar or any other item from Burke. One day,

Burke let him come in the kitchen for water. Burke’s nurse was present, and Burke

asked her to put an air conditioner in a window in the spare bedroom. The nurse said it

was too heavy, so Stapleton did it. Burke stood next to him the whole time and handed

him the screws and screwdriver; the nurse was also present for the installation.

Stapleton did not see a guitar on the bed. Stapleton claimed Burke had nurses in the

house every day. Stapleton denied leaving Burke’s house with a black guitar case. He

claimed he rode his bike to Burke’s house every day and “always carried a weed eater

on the front of the handlebars.” Stapleton claimed that Burke’s weed eater did not work.

He recalled seeing Floyd drive by Burke’s house “about the 18th of May,” but did not

flag her down. He rode his bicycle, with a weed eater, to Steele’s home and cut the

grass there. Stapleton claimed that on March 23, 2011, he did travel on the road in

front of Burke’s home with “an old guitar” someone named Kyle Goodrich gave him, and

Floyd passed him. He claimed that when he worked for Burke in June, Burke never

said anything about a missing guitar. Stapleton admitted that he was convicted of fifth

degree felony theft in 2007 and misdemeanor theft in 2009.

       {¶10} The jury found Stapleton guilty of both counts. The court concluded that

his crimes constituted allied offenses of similar import, and the state elected to proceed

on the burglary charge for sentencing purposes. This appeal followed.
Scioto App. No. 12CA3477                                                                     6


                                  II. Assignment of Error

       {¶11} Stapleton assigns one error for our review: “THE VERDICT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                           III. Manifest Weight of the Evidence

       {¶12} In his sole assignment of error, Stapleton contends that the jury’s verdict

was against the manifest weight of the evidence. Even though the trial court only

sentenced Stapleton on the burglary offense, we construe this assignment of error as a

challenge to the jury’s adjudication of guilt on both the burglary and theft from an elderly

person or disabled adult charges. “In determining whether a criminal conviction is

against the manifest weight of the evidence, an appellate court must review 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 trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, ¶ 24, citing

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A reviewing court

“may not reverse a conviction when there is substantial evidence upon which the trial

court could reasonably conclude that all elements of the offense have been proven

beyond a reasonable doubt.” State v. Johnson, 58 Ohio St.3d 40, 42, 567 N.E.2d 266

(1991), citing State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph

two of the syllabus.

       {¶13} Even when acting as a thirteenth juror we must still remember that the

weight to be given evidence and the credibility to be afforded testimony are issues to be

determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d
Scioto App. No. 12CA3477                                                                    7


1000 (1995). The fact finder “is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. City of Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984). Thus, we will only interfere if the fact finder

clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the judgment

results from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of

the syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.

       {¶14} The jury found Stapleton guilty of burglary, in violation of R.C.

2911.12(A)(1), which provides: “No person, by force, stealth, or deception, shall do any

of the following: * * * Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, when another person other than

an accomplice of the offender is present, with purpose to commit in the structure or in

the separately secured or separately occupied portion of the structure any criminal

offense[.]” The jury also found him guilty of the offense the state claimed he had

purpose to commit in Burke’s house, i.e., theft from an elderly person or disabled adult,

in violation of R.C. 2913.02(A)(1) and (B)(3). Under R.C. 2913.02(A)(1): “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: * * *

Without the consent of the owner or person authorized to give consent[.]” R.C.

2913.02(B)(3) provides that, with certain exceptions not relevant here: “[I]f the victim of

the offense is an elderly person or disabled adult, a violation of this section is theft from
Scioto App. No. 12CA3477                                                                      8


an elderly person or disabled adult * * *. Except as otherwise provided in this division,

theft from an elderly person or disabled adult is a felony of the fifth degree.” An elderly

person is someone “who is sixty-five years of age or older.” R.C. 2913.01(CC).

       {¶15} Stapleton contends that he did not sneak back into Burke’s home while he

slept and take his guitar. He claims the state’s witnesses lack credibility and that their

varying testimony about the specific day the guitar went missing, coupled with testimony

that “other people had regular access to the guitar,” should have “created reasonable

doubt as to whether Stapleton was actually the one who took it.” (Appellant’s Br. 7).

Specifically, Stapleton argues that Burke is an “older gentleman with very faulty memory

who never actually saw Stapleton with the guitar.” (Appellant’s Br. 6). Stapleton

complains that Burke could not recall the exact date the guitar went missing. He claims

that Burke initially testified that no one was in the house except Stapleton but later

admitted that “in fact he had home health aides in his home.” (Appellant’s Br. 6).

Stapleton also argues that Burke claimed “numerous other items were missing,

although that apparently was not of enough concern to tell the police.” (Appellant’s Br.

6). Stapleton suggests that Steele is not credible because he is a “career criminal” and

had an incentive to lie because of his plea agreement. He argues that Steele “even

places the supposed offer to sell in June, which would have been impossible according

to the other testimony.” (Appellant’s Br. 6). Stapleton argues that Floyd could not “pin

down the date” she allegedly saw him with a guitar case. (Appellant’s Br. 6). “First she

says it was a day or two before May 30[th], then she says it was actually a couple of

weeks before. But a couple of weeks before would have placed the date on a different

date than when Burke claimed the guitar to be missing.” (Appellant’s Br. 6).
Scioto App. No. 12CA3477                                                                    9


       {¶16} Stapleton mischaracterizes some of the evidence. Burke never admitted

that he had home health aides in his home. Defense counsel asked if Burke had “a

health care provider, a lady that helps you,” and Burke stated that he did. However,

Burke never testified that this person assisted him at home or testified about when he

received assistance. In addition, it is unclear from the testimony whether Burke ever

reported to law enforcement that other items were missing from the home. It is possible

that he did but law enforcement chose not to pursue the matter because unlike with the

missing guitar, they had no witnesses who claimed to actually see Stapleton with the

other items. Also, contrary to Stapleton’s argument, Steele testified that Stapleton

offered him the guitar in May or June 2011.

       {¶17} Moreover, “[h]aving heard the testimony and having observed the

demeanor of the witnesses, the jury could choose to believe all, part, or none of the

testimony presented by any of the witnesses.” State v. Delawder, 4th Dist. No.

10CA3344, 2012-Ohio-1923, ¶ 18. Aside from Stapleton’s self-serving testimony, no

evidence indicates that anyone other than Stapleton was in Burke’s home the day the

guitar went missing. And the fact that several of the state’s witnesses could not recall

the specific day this incident occurred is not dispositive. As the state correctly points

out, the exact date the alleged offense occurred is not an element of either of the crimes

charged. And the state’s witnesses gave fairly consistent accounts on the timeframe in

which the incident occurred. Although Burke could not recall the exact date, Deputy

VanHoose testified that he spoke to Burke on May 18, 2011, and VanHoose believed

the theft happened the day before. Floyd did give conflicting testimony about when she

saw Stapleton with the guitar case. First, she said it was a few days before her
Scioto App. No. 12CA3477                                                                     10


statement of May 30, 2011; then she said it was a few weeks prior to that. However, in

her written statement, she said it was “[a]bout two weeks ago.” This timeframe fits with

VanHoose’s testimony. The jury could find the written statement more accurate than

Floyd’s testimony because her memory of events would likely be fresher at the time she

gave it than at trial several months later. In addition, Steele testified that his encounter

with Stapleton could have occurred in May 2011, which is consistent with the other

evidence.

       {¶18} Other evidence also supports the jury’s conclusion that Stapleton was

guilty of the charged offenses. Burke testified that Stapleton saw his black guitar case,

inquired about it, and knew it would be unattended in the spare bedroom while Burke

napped. Floyd saw Stapleton leave Burke’s driveway with a black guitar case and

dropped him and the case off at Steele’s home. Steele testified that Stapleton tried to

sell him the guitar, later sold it one of Steele’s dad’s friends, and wanted it back after

law enforcement began to investigate Burke’s claim. The jury was free to believe this

testimony despite the fact that Steele had a criminal history and testified as part of plea

bargain. Moreover, Stapleton gave different versions of what happened. When Floyd

confronted him, he told her someone gave him the guitar. When Detective Spencer

spoke to Stapleton, he claimed that Floyd saw him with a weed eater, not a guitar. He

accused her of lying because she was mad he had not repaid a $40 loan. Yet at trial,

he testified that in March 2011, before he worked for Burke, Floyd did see him with a

guitar near Burke’s house. The jury was free to discredit Stapleton’s testimony about

what transpired, particularly in light of his history of theft convictions.

       {¶19} The jury chose to believe the state’s version of events, and we will not
Scioto App. No. 12CA3477                                                                 11


substitute our judgment for that of the finder of fact under these circumstances. The

evidence reasonably supports the conclusion that Stapleton snuck into Burke’s home

and took the guitar. After reviewing the entire record, we cannot say that the jury lost its

way or created a manifest miscarriage of justice when it found Stapleton committed

burglary and theft from an elderly person or disabled adult. Accordingly, we overrule

Stapleton’s sole assignment of error and affirm the trial court’s judgment.

                                                                 JUDGMENT AFFIRMED.
Scioto App. No. 12CA3477                                                                    12


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.

                                            For the Court



                                            BY: ____________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
