[Cite as State v. Ingram, 2011-Ohio-6629.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96509



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      JAMES INGRAM
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-541399

        BEFORE:           Boyle, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                        December 22, 2011
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ATTORNEY FOR APPELLANT

Michael V. Heffernan
75 Public Square
Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Brett Kyker
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

      {¶ 1} Defendant-appellant, James Ingram, appeals his conviction for theft, raising

the following two assignments of error:

      {¶ 2} “I.    Mr. Ingram’s conviction was against the manifest weight of the

evidence.

      {¶ 3} “II.   The inconsistent verdict in this case requires reversal.”

      {¶ 4} Finding no merit to the appeal, we affirm.

                                 Procedural History and Facts

      {¶ 5} In September 2010, Ingram was indicted on four counts: two counts of

burglary — one in violation of R.C. 2911.12(A) and one in violation of R.C.
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2911.12(A)(3); one count of theft in violation of R.C. 2913.02(A)(1); and one count of

safecracking in violation of R.C. 2911.31(A).        Ingram pleaded not guilty to the

indictment, and the matter proceeded to a jury trial where the following evidence was

presented.

      {¶ 6} The victim, Marjorie Dixon, age 80, lived in Cleveland, where she had

resided for the last 40 years. In lieu of an insurance policy, Dixon stored $11,000 in

cash in a Brink’s home safe, unlocked, in her home. Dixon testified that the money was

intended to cover her funeral expenses following her death.

      {¶ 7} Dixon is Ingram’s paternal grandmother.           According to Dixon, no one

other than Ingram had a key to her house.    She further testified that Ingram knew that

she kept $11,000 in cash in her house.

      {¶ 8} On July 1, 2010, Dixon returned home from a weekend in Michigan and

found no signs of forced entry into her home but noticed that “somebody [had] been

rambling around.”    She later checked her safe and discovered that the $11,000 was

missing. Dixon testified that, upon discovering that her money was gone, she “knew

James had taken it.”      Dixon, however, decided not to confront Ingram.         Shortly

thereafter, a bank statement addressed to Ingram was sent to Dixon’s residence.   (Ingram

had used his grandmother’s address for purposes of the account.) Dixon opened the

bank statement and discovered that Ingram had over $9,000 in the bank, despite not

having ever held a job.
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       {¶ 9} The state also offered the testimony of Sandra Monsman, a Charter One

Bank representative from the Euclid office.      Monsman testified that Ingram opened an

account with Charter One on June 28, 2010, depositing $9,900 in cash. Since that time,

there have been no other deposits made but several withdrawals.          Monsman further

testified that “any deposit of $10,000 or more needs to be reported” to the federal

agencies and that Ingram’s deposit fell below that threshold.

       {¶ 10} The state further offered as an exhibit a certified record showing that

Ingram had not filed any tax returns for 2007, 2008, or 2009.

       {¶ 11} Shirley Ingram testified on her son’s behalf, stating that her son was a good

person who saved his money. Although she never knew her son to have a permanent

job, she testified that he had done “odds-and-ends jobs” and that he earned money selling

“oils and CDs.”       On cross-examination, she acknowledged that Ingram’s last

employment was probably 20 years ago and that he had a prior felony conviction for drug

trafficking.

       {¶ 12} Ingram testified on his own behalf, stating that he was 40 years old and that

he had always had a good relationship with Dixon — his grandmother. He explained

that he has always helped her and his father with the properties that they owned and

managed.

       {¶ 13} In describing his current source of income, Ingram testified as follows:
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       {¶ 14} “Well, actually, what I do, I do landscaping for one of the persons at the

church. He got his own little landscaping thing, different houses. I sell oils always,

T-shirts, you know, mix tapes that DJs make and I save money. I mean, I don’t — it’s

not like, you know, I could save 3,000 or 4,000 a year, it’s a period of time, you know.”

       {¶ 15} On cross-examination, Ingram clarified that he has not done odd jobs for his

father since the 1990s but that he has been earning money buying items wholesale, i.e.,

purses, t-shirts, oils, mix tapes, and selling them. He acknowledged that he opened the

Charter One account in June 2010 and that his other accounts had been nearly depleted at

that time.   The activity on the other accounts revealed a consistent stream of withdrawals

but no deposits.

       {¶ 16} Ingram further testified that he did not steal any money from his

grandmother.       While he acknowledged that he did have a key to his grandmother’s

house, he testified that he returned the key “around” June 2010 and that other people had

keys to his grandmother’s house.

       {¶ 17} The jury found Ingram guilty of a single count of theft with the furthermore

clauses that the victim was elderly and that the value of the property was more than

$5,000 but less than $25,000. The jury acquitted Ingram of the other counts, and the

trial court subsequently sentenced him to one year in prison.       The trial court further

informed Ingram that he would be subject to three years of mandatory postrelease control.

                                 Manifest Weight of the Evidence
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      {¶ 18} In his first assignment of error, Ingram argues that his conviction is against

the manifest weight of the evidence.       He contends that the jury wrongly believed

Dixon’s testimony that he was the only one with a key to her house when there was

evidence demonstrating otherwise.

      {¶ 19} In reviewing a claim challenging the manifest weight of the evidence, “[t]he

question to be answered is whether there is substantial evidence upon which a jury could

reasonably conclude that all the elements have been proved beyond a reasonable doubt.

In conducting this review, we must examine the entire record, weigh the evidence and all

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

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.” (Internal quotes and citations

omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.

      {¶ 20} The gravamen of Ingram’s argument is that the jury wrongly believed his

grandmother over him.      But it is entirely within the jury’s province to assess the

credibility of the witnesses and believe one over another.   Here, we cannot say that the

jury lost its way simply because it found Ingram’s testimony not credible. Indeed,

Ingram’s testimony was inconsistent with his own actions leading to his arrest, including

his claim that he “saved” the $9,900 over time despite his near depletion of his other bank

accounts and his lack of any consistent employment.      Accordingly, after reviewing the

entire record, we conclude that this case is not the “exceptional case in which the
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evidence weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d

380, 387, 1997-Ohio-52, 678 N.E.2d 541.

       {¶ 21} The first assignment of error is overruled.

                                      Inconsistent Verdicts

       {¶ 22} In his second assignment of error, Ingram argues that the jury’s guilty

finding on the theft count cannot stand because it is inconsistent with the jury’s acquittal

on the two burglary counts. He contends that, because the jury found him not guilty of

the burglary counts, it should have also acquitted him of the theft count. We disagree.

       {¶ 23} First, we fail to see any inconsistency between these verdicts.    The jury’s

finding of guilt on the theft count did not preclude a not guilty finding on the burglary

counts. Indeed, the jury could have easily believed that Ingram was not trespassing in

his grandmother’s home when he stole the money.

       {¶ 24} Second, even assuming that these verdicts were inconsistent, this is not

grounds for reversal.      Inconsistent verdicts on different counts of a multicount

indictment do not justify overturning a verdict.    State v. Gapen, 104 Ohio St.3d 358,

2004-Ohio-6548, 819 N.E.2d 1047, ¶137. “The several counts of an indictment

containing more than one count are not interdependent and an inconsistency in a verdict

does not arise out of inconsistent responses to different counts, but only arises out of

inconsistent responses to the same count.” Id., quoting State v. Adams (1978), 53 Ohio

St.2d 223, 374 N.E.2d 137, paragraph two of the syllabus.
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      {¶ 25} The second assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
