[Cite as State v. Fox, 2015-Ohio-3892.]


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

STATE OF OHIO,                                :               Case No. 14CA36

        Plaintiff-Appellee,                   :

v.                                            :               DECISION AND
                                                              JUDGMENT ENTRY
MINDY S. FOX,                                 :

        Defendant-Appellant.                  :               RELEASED 09/18/2015


                                          APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.


Hoover, P.J.

        {¶1} Defendant-appellant, Mindy S. Fox, appeals from her convictions of aggravated
robbery (two counts), kidnapping, and intimidation entered by the Washington County Court of

Common Pleas following a jury trial.

        {¶2} On appeal, Fox contends that her convictions are against the manifest weight of
the evidence because there is no physical evidence linking her to the crimes and because the

testimony from an alleged accomplice identifying her as the perpetrator of the crimes should not

be believed based on the accomplice’s admission that he received favorable treatment from the

State in order to testify. However, a conviction is not against the manifest weight of the evidence

or otherwise improper because it is supported by the testimony of an accomplice. In addition,

because the jury, as the trier of fact, was in the best position to observe the accomplice’s
Washington App. No. 14CA36                                                                        2


testimony and to evaluate his credibility, we cannot say that the jury clearly lost its way and

created a manifest miscarriage of justice. Thus, we reject the manifest weight argument.

        {¶3} Fox next argues that trial counsel rendered ineffective assistance by failing to
make a Crim.R. 29(A) motion for acquittal on the charges, i.e. counsel failed to challenge the

sufficiency of the evidence supporting the convictions. However, the failure to raise a sufficiency

argument at trial does not waive that argument on appeal. Moreover, in concluding that Fox’s

convictions were not against the manifest weight of the evidence, we necessarily concluded that

sufficient evidence supported the convictions. Thus, such a motion would have been futile; and

Fox cannot establish deficient performance or prejudice.

        {¶4} Finding no merit to Fox’s assignments of error, we affirm the judgment of the
trial court.

                                             I. FACTS

        {¶5} On January 30, 2014, Fox was indicted on two counts of aggravated robbery, in
violation of R.C. 2911.01(A)(1), each felonies of the first degree, one count of kidnapping, in

violation of R.C. 2905.01(A)(2) and (C)(1), a felony of the second degree, and one count of

intimidation, in violation of R.C. 2921.04(B)(1), a felony of the third degree. The indictment

arose from two incidents that occurred on December 26 and 27, 2013, in Marietta, Ohio.

        {¶6} Fox pleaded not guilty to all counts of the indictment; and a jury trial was held on
September 16, 2014. A review of the record and the transcript from the jury trial reveals the

following facts pertinent to this appeal.

        {¶7} Matthew Bailey testified that on December 26, 2013, a woman approached him
when he was at an ATM in Marietta, held a knife to his chest, and demanded that he give her

money. The perpetrator was wearing a black ski mask with holes for the eyes and mouth; but
Washington App. No. 14CA36                                                                             3


Bailey could tell by the person’s voice that she was a woman. Bailey described the woman as

slender build, standing about five feet two or five feet four inches tall. Notably, Bailey testified

that when he first arrived at the bank, he saw a red Chevy S-10 or similar type pickup truck

sitting in the back parking lot. The woman took $260 and Bailey’s wallet before leaving on foot.

       {¶8} Darrell Ashby testified that he is a general contractor who was remodeling the
inside of a dental office building in Marietta on December 27, 2013. At about 6:45 a.m., Ashby

saw a red pickup truck parked near the building. Soon thereafter, Ashby entered the building and

a masked woman approached him with a knife and ordered him to come with her. Ashby

testified that based on the perpetrator’s voice, he believed the individual to be a woman. Ashby

estimated that the woman stood four feet nine inches tall to five feet tall. The woman was

wearing a toboggan type mask with holes cut in it. Ashby testified that the woman held the knife

near his bellybutton.

       {¶9} The masked woman led Ashby by knifepoint to his car and demanded that he
drive her to an ATM. The woman told Ashby that she wanted $300. Ashby complied with the

woman’s orders but was only able to retrieve $200 from the ATM. The woman then asked

Ashby for his driver’s license, telling him that if he informed authorities of the incident, she

would come to his house and hurt his family. Ashby refused to turn over his license and the

woman left with the $200.

       {¶10} Soon after the woman left Ashby, he saw a red, small-sized pickup truck leave
the area. A heavyset bearded man drove the truck, and Ashby could see someone else ducked

down in the passenger seat. While Ashby testified that he did not see the woman enter the truck,

he indicated that he did not see anywhere else she could have gone. Ashby also testified that the

truck was the same red pickup truck he had seen earlier in the morning at the dental office.
Washington App. No. 14CA36                                                                             4


       {¶11} Officer Katherine Warden of the Marietta Police Department investigated the
two incidents. On December 28, 2013, Warden received an anonymous tip stating that James

Augenstein owned a red pickup truck matching the description of the suspicious vehicle and that

he had a short, slender girlfriend who matched the description of the suspect. Warden testified

that after receiving the anonymous tip she obtained a photograph of Augenstein and presented

the photograph to Ashby in a photo line-up. Ashby picked Augenstein’s photograph out of the

line-up, and indicated that he was 75% certain that Augenstein was the driver of the red truck he

saw leaving the scene. Warden and another officer then initiated contact with Augenstein.

According to Warden, Augenstein admitted involvement in the crimes and identified Fox as the

masked perpetrator.

       {¶12} Augenstein also testified at trial. Augenstein testified that he and Fox were in an
“on again, off again”, “boyfriend-girlfriend” type of relationship at the time of the incidents. He

noted that Fox was about five foot, five foot one inches tall. He also testified that Fox had a thin

build in December 2013.

       {¶13} Augenstein indicated that he owned a red 1992 Dodge Dakota pickup truck, and
that he drove Fox to the area of the ATM at the time of the first robbery on December 26. He

said that she left him for about five minutes, with a black toboggan on her head, and returned

with a wallet and about $250 or $260 in cash. The two then spent the money on “pills and weed”.

       {¶14} Augenstein also drove Fox, in his red pickup truck, to downtown Marietta on the
morning of December 27. He indicated that he dropped Fox off near a business for a job

interview, and then circled the block a few times. Eventually, he located Fox and picked her up

near Fourth Street. The two then bought gas and went to Walmart to buy DVDs and clothes. Fox
Washington App. No. 14CA36                                                                           5


paid for the gas and Walmart purchases with cash. Augenstein claimed that he did not know Fox

intended to rob anyone when he dropped her off downtown.

        {¶15} Augenstein also testified that he admitted to Officer Warden that he was involved
in the crimes, and that Fox was the perpetrator of the crimes. Finally, Augenstein, who was also

indicted on two counts for his involvement in the robberies, testified in great detail about his plea

deal with the State. Specifically, Augenstein testified that in exchange for his testimony at Fox’s

trial and for his guilty plea to a reduced charge, the State agreed to dismiss the remaining count

of his indictment. The State also agreed to recommend no more than four years imprisonment at

Augenstein’s sentencing hearing. The deal was conditioned upon him providing truthful

testimony.

        {¶16} Immediately following Augenstein’s testimony, and again in the trial court’s
general jury instructions, the trial court gave an instruction on accomplice testimony.

Specifically, the trial court instructed the jury that:


        [T]he testimony of an accomplice does not become inadmissible because of his

        complicity, moral turpitude, or self interest. But the admitted or claimed

        complicity of a witness may affect his credibility and make his testimony subject

        to grave suspicion and require that it be weighed with great caution. It is for you

        as jurors in the light of all the facts presented to you from the witness stand, to

        evaluate this testimony and determine its quality and worth or its lack of quality

        and worth.


        {¶17} Ultimately, the jury found Fox guilty of all counts as charged in the indictment.
A sentencing hearing was held on October 30, 2014, and Fox was sentenced to an aggregate

nine-year term of imprisonment. Fox then filed a timely notice of appeal.
Washington App. No. 14CA36                                                                                6


                                  II. ASSIGNMENTS OF ERROR

        {¶18} Fox assigns the following errors for our review:
        1. THE CONVICTIONS OF DEFENDANT-APPELLANT ARE AGAINST
           THE MANIFEST WEIGHT OF THE EVIDENCE.

        2. TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE
           ASSISTANCE UNDER THE OHIO AND UNITED STATES
           CONSTITUTIONS BY FAILING TO MOVE FOR ACQUITAL UNDER
           CRIMINAL RULE 29.

                                     III. LAW AND ANALYSIS

        {¶19} In her first assignment of error, Fox contends that her convictions are against the
manifest weight of the evidence because there is no physical evidence linking her to the crimes

and because Augenstein’s testimony identifying her as the culprit of the crimes is not credible

given his role as an accomplice and his plea deal with the State. In other words, Fox contends

that the jury should not have believed Augenstein’s testimony; and without his testimony the

State failed to prove that she was the perpetrator of the crimes.

        {¶20} “When an appellate court considers a claim that a conviction is against the
manifest weight of the evidence, the court must dutifully examine the entire record, weigh the

evidence, and consider the credibility of witnesses.” State v. Topping, 4th Dist. Lawrence No.

11CA6, 2012–Ohio–5617, ¶ 60. “The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve.” Id., citing State v. Issa, 93 Ohio

St.3d 49, 67, 752 N.E.2d 904 (2001), and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. This is so because “[t]he trier of fact ‘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.’ ” State v. Pippen, 4th Dist.
Washington App. No. 14CA36                                                                         7


Scioto No. 11CA3412, 2012–Ohio–4692, ¶ 31, quoting Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶21} “Once the reviewing court finishes its examination, the court may reverse the
judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in

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

conviction must be reversed and a new trial ordered.” (Quotations omitted.) State v. Davis, 4th

Dist. Ross No. 12CA3336, 2013–Ohio–1504, ¶ 14.

       {¶22} If the prosecution presented substantial evidence upon which the trier of fact
reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense

had been established, the judgment of conviction is not against the manifest weight of the

evidence. State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 16 (4th

Dist.). A reviewing court should find a conviction against the manifest weight of the evidence “

‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see also State v. Lindsey, 87 Ohio St.3d

479, 483, 721 N.E.2d 995 (2000).

       {¶23} As an initial matter, we note that even when a conviction is based solely or
substantially upon accomplice testimony, it is not necessarily improper or against the manifest

weight of the evidence. See State v. Jazdzewski, 4th Dist. Washington No. 14CA15, 2015-Ohio-

2416, ¶¶ 42-44 (rejecting argument that defendant’s conviction was improper inasmuch as it

rested completely on the testimony of an accomplice); State v. Rougeau, 2nd Dist. Montgomery

No. 21705, 2007-Ohio-2603, ¶ 9 (“Rougeau's conviction was well-supported by the evidence

and, even though it was substantially based upon accomplice testimony, it clearly was not against
Washington App. No. 14CA36                                                                                       8


the manifest weight of the evidence.”); State v. Taylor, 10th Dist. Franklin No. 10AP-939, 2011-

Ohio-3162, ¶ 24 (“As the Supreme Court of Ohio has recognized * * * a jury is not precluded

from basing a criminal conviction on the uncorroborated testimony of an accomplice.”); State v.

Pierce, 9th Dist. Summit No. 27204, 2014-Ohio-5258, ¶ 9 (“The fact that an accomplice of the

defendant has received leniency in exchange for his testimony does not, necessarily, make his

testimony incredible.”).

           {¶24} Here, both the State and defense counsel had the opportunity to examine
Augenstein concerning his involvement as an accomplice, his agreement with the State, and any

other bias he may have had in testifying at Fox’s trial and in identifying Fox as the perpetrator of

the crimes. Moreover, the trial court on more than one occasion gave the required cautionary

instruction1, warning the jury to view Augenstein’s testimony with great suspicion and to weigh

it with great caution given his status as an alleged accomplice. We also note that the jury was

able to view Augenstein’s direct and cross-examination, and was in the best position to observe

his demeanor, gestures, and voice inflections. Thus, the jury had before it sufficient facts to

ascertain Augenstein’s credibility and to weigh it accordingly. We will not substitute our

judgment for that of the jury.

1
    R.C. 2923.03, the complicity statute, states as follows:

           If an alleged accomplice of the defendant testifies against the defendant in a case in which the
           defendant is charged with complicity in the commission of or an attempt to commit an offense, an
           attempt to commit an offense, or an offense, the court, when it charges the jury, shall state
           substantially the following:
           “The testimony of an accomplice does not become inadmissible because of his complicity, moral
           turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his
           credibility and make his testimony subject to grave suspicion, and require that it be weighed with
           great caution.
           It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to
           evaluate such testimony and to determine its quality and worth or its lack of quality and worth.”

R.C. 2923.03(D).
Washington App. No. 14CA36                                                                           9


        {¶25} Furthermore, the victims’ description of the build and height of the suspect, and
of the suspicious red pickup truck seen during both incidents, corroborates Augenstein’s account

that Fox was the perpetrator of the crimes and that he facilitated the crimes by driving her to and

from the crime scenes. Augenstein’s testimony was also consistent with the confession he gave

to the investigating officer; and this fact was highlighted at trial.

        {¶26} In sum, the jury was aware of the potential credibility concerns surrounding
Augenstein’s testimony, but, nonetheless, chose to believe his version of events. “ ‘[A]

conviction is not against the manifest weight of the evidence simply because the jury believed

the prosecution testimony.’ ” State v. Fletcher, 4th Dist. Lawrence No. 14CA14, 2015-Ohio-

1624, ¶ 28, quoting State v. Cooper, 170 Ohio App.3d 418, 2007–Ohio–1186, 867 N.E.2d 493, ¶

17 (4th Dist.). Reviewing the record as a whole, we cannot say that this is an exceptional case

where the evidence weighs heavily against the convictions, that the trier of fact lost its way, or

that a manifest miscarriage of justice has occurred. Accordingly, the verdict was not against the

manifest weight of the evidence. Fox's first assignment of error is overruled.

        {¶27} In her second assignment of error, Fox contends that her trial counsel rendered
ineffective assistance.

        {¶28} Criminal defendants have a right to counsel, including a right to the effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d

763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–Ohio–1366, ¶ 21. To

establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)

that his counsel's performance was deficient and (2) that the deficient performance prejudiced the

defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State
Washington App. No. 14CA36                                                                         10


v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient

performance, the defendant must prove that counsel's performance fell below an objective level

of reasonable representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel's errors, the result of the proceeding would have been different.”

State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95. “Failure to

establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,

2008–Ohio–968, ¶ 14.

       {¶29} Fox contends that her trial counsel rendered ineffective assistance by not making
a Crim.R. 29(A) motion for acquittal because there was no evidence identifying her as the

perpetrator except for the testimony of Augenstein – an accomplice and co-defendant who had

reached a plea agreement with the State. A motion for acquittal brought pursuant to Crim.R.

29(A) tests the sufficiency of the evidence presented at trial. State v. Williams, 74 Ohio St.3d

569, 576, 660 N.E.2d 724 (1996); State v. Blevins, 4th Dist. Scioto No. 10CA3353, 2011-Ohio-

3367, ¶ 28. Under Crim.R. 29(A), the trial court must enter a judgment of acquittal when the

State’s evidence is insufficient as a matter of law to sustain a conviction.

       {¶30} “However, the failure to raise a sufficiency argument at trial does not waive that
argument on appeal.” Blevins at ¶ 29, citing Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186,

867 N.E.2d 493, at ¶ 13. “Moreover, ‘[w]hen an appellate court concludes that the weight of the

evidence supports a defendant’s conviction, this conclusion necessarily includes a finding that

sufficient evidence supports the conviction.’ ” Id., quoting State v. Puckett, 191 Ohio App.3d

747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 34 (4th Dist.). “ ‘Thus, a determination that [a]

conviction is supported by the weight of the evidence will also be dispositive of the issue of

sufficiency.’ ” Id., quoting Puckett at ¶ 34.
Washington App. No. 14CA36                                                                     11


        {¶31} Here, we have already determined, in resolving Fox’s first assignment of error,
that her convictions were not against the manifest weight of the evidence. Thus, any attempt by

trial counsel to move for acquittal under Crim.R. 29(A) would have been futile. Accordingly,

trial counsel’s failure to make the Crim.R. 29(A) motion was not deficient; and we overrule

Fox’s second assignment of error. See Blevins at ¶ 30 (“Because the law does not require counsel

to take a futile act, the failure to make the Crim.R. 29(A) motion was not deficient.”).

                                       IV. CONCLUSION

        {¶32} Having overruled both of Fox’s assignments of error, we affirm the judgment of
the trial court.

                                                                        JUDGMENT AFFIRMED.
Washington App. No. 14CA36                                                                            12


                                       JUDGMENT ENTRY

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

        The Court finds that reasonable grounds exist for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Washington
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.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                                For the Court


                                                BY: ________________________
                                                    Marie Hoover
                                                    Presiding 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.
