[Cite as State v. Godsey, 2020-Ohio-4223.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 20-COA-008
ISSAC GODSEY                                   :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland County
                                                   Court of Common Pleas, Case No. 19-CRI-
                                                   209

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            August 27, 2020

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CHRISTOPHER R. TUNNELL                             BRIAN SMITH
Ashland County Prosecuting Attorney                755 White Pond Drive, Ste. 403
VICTOR R. PEREZ                                    Akron, OH 44320
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, OH 44805
[Cite as State v. Godsey, 2020-Ohio-4223.]


Gwin, P.J.

        {¶1}     Defendant-appellant Issac Godsey [“Godsey”] appeals his convictions and

sentences after a jury trial in the Ashland County Court of Common Pleas.

                                         Facts and Procedural History

        {¶2}     On September 20, 2019, Neil Burdick was visiting his son and his family in

Miamisburg, Montgomery County, Ohio. Miamisburg is just south of Dayton, Ohio. Mr.

Burdick drove from Pennsylvania with his daughter in his 1997 grey Jeep Grand

Cherokee. Mr. Burdick checked in at the Studio 6 across from the Dayton Mall on that

day between 3:30 pm and 4:00 pm. Mr. Burdick's daughter stayed with his son. The

license plate to Mr. Burdick’s Jeep Cherokee was Pennsylvania plate number “FVE

2250.” The license plate was attached to the Jeep when Mr. Burdick checked in to the

Studio 6 Motel. Mr. Burdick backed into a parking spot. After checking in, Mr. Burdick

visited with his son and his family. Mr. Burdick returned to the Studio 6 Motel and parked

in the same manner. The next day Mr. Burdick visited with his son and his family again.

When he returned to Studio 6 Motel, he pulled into a parking spot nose first and noticed

that his license plate was missing. Mr. Burdick walked to where he had previously parked

and did not find the license plate. Mr. Burdick went into the lobby, contacted the clerk

and called 911.

        {¶3}     Officer Brian Brenneman from the Miami Township Police Department

responded to the Studio 6 Motel. Mr. Burdick filed a stolen license plate police report with

Officer Brenneman. Mr. Burdick returned to Pennsylvania on Sunday, September 22,

2019. Mr. Burdick did not know Godsey and did not give anyone permission to take the

license plate from his Jeep Cherokee.
Ashland County, Case No. 20-COA-008                                                   3


      {¶4}   Officer Brenneman entered Pennsylvania license plate number “FVE 2250”

as stolen into LEADS. Officer Brenneman met with the owner of the Studio 6 Motel and

reviewed the motel's security video footage for the period that Mr. Burdick was a

registered guest of the motel. Officer Brenneman did not see anything of consequence

during the period when the license plate was reported stolen. He then reviewed the

motel's security video from the night before. At about 3:30 a.m. on the video, Officer

Brenneman observed a similar Jeep to Mr. Burdick's Jeep pull in next to Mr. Burdick's

Jeep. Officer Brenneman observed a man get out of the other Jeep and walk off towards

a nearby Speedway gas station. Officer Brenneman then observed the same man come

back to the area behind Mr. Burdick's Jeep and, after a few minutes being behind Mr.

Burdick's Jeep, the male got back into the other Jeep. Officer Brenneman noticed that

the other Jeep that parked next to Mr. Burdick's Jeep on September 21, 2019 was very

similar to Mr. Burdick's Jeep. Officer Brenneman noticed that the other Jeep was lifted

and had larger tires. Officer Brenneman was also able to see how the other Jeep pulled

out of the parking spot next to Mr. Burdick and drove away from the area. Officer

Brenneman then observed that the other Jeep Cherokee pulled into another parking spot,

the male got out of the vehicle, and the male went to the back of the vehicle. Officer

Brenneman then observed the other Jeep Cherokee leave the parking lot.           Officer

Brenneman did not see the other person remove the license plate from Mr. Burdick’s

Jeep. The license plate is not seen in the possession of the other driver or attached to

his Jeep in the video footage.

      {¶5}   On September 21, 2019, Ms. Jasia Rivers accompanied her partner Don

Williams from Columbus to the Cleveland area to buy a customized car. The couple
Ashland County, Case No. 20-COA-008                                                         4


rented a car to make the trip to Cleveland. After picking up the car, Ms. Rivers drove the

rental car while Mr. Williams drove the car on their return trip to Columbus via I-71. Ms.

Rivers noticed that Mr. Williams started having problems with the car. Mr. Williams pulled

over to try to fix it. Not being able to fix the car, they decided to secure the car, leave it

on the roadside of I-71, and return the next day with a car hauler to take the broken down

car to Columbus. Before they returned to Columbus, an unidentified officer stopped by

to assist them and told them that it was o.k. to leave the car there for a day.

       {¶6}   On September 22, 2019, Mr. Williams and Ms. Rivers rented a truck with a

car hauler and returned to where they had left the car. As they were traveling northbound

on I-71 Ms. Rivers saw that the passenger door to the car was up and open. Ms. Rivers

also saw an SUV in front of the car. Ms. Rivers called 911. Mr. Williams drove to the

next highway break on I-71 turned around and started driving southbound on I-71. Mr.

Williams pulled up in front of the SUV and the car and parked on the roadside of I-71.

Ms. Rivers jumped out of the rental truck and saw that someone was still inside of the

car. Ms. Rivers could still see legs hanging out of the passenger side of the car. Ms.

Rivers saw two women in the SUV and they started yelling. Ms. Rivers started running

towards the car so she could slow down the person in the car. As she was running

towards the car, Ms. Rivers saw Godsey had the car's expensive after-market car radio

in his hands. Ms. Rivers ran towards the back of the SUV and the car to stop Godsey

from stealing the radio and he pushed her out of the way. On cross-examination, Ms.

Rivers testified that Godsey “stiff-armed” her when he pushed her out of the way. Ms.

Rivers tried to punch Godsey to slow him down. After pushing Ms. Rivers out of the way,

Godsey ran towards the SUV's driver's side. Godsey then started tussling with Mr.
Ashland County, Case No. 20-COA-008                                                        5


Williams over the radio. Ms. Rivers was still on the phone with 911 and was giving the

call taker a description of what was happening.        Ms. Rivers then opened the front

passenger door to the SUV and tried to take the keys out of the ignition of the SUV to

stop Godsey and his companions from attempting to leave. However, Godsey was able

to get inside of the SUV and drove off after fighting off Mr. Williams. Ms. Rivers gave 911

the license plate number on the SUV, Pennsylvania plate number “FVE 2250.” Ms. Rivers

received a bruise to her arm and scars to her hand during the altercation. Ms. Rivers had

never met Godsey before that day and did not give him permission to take the radio out

of the car.

       {¶7}   On September 21, 2019, after renting a truck and a car hauler, Mr. Williams

was driving Northbound on I-71 when Ms. Rivers saw that the 1987 Chevy Caprice's

passenger door was open. Ms. Rivers also told Mr. Williams that someone was inside of

the car, and that there was a Jeep in front of the car. Ms. Rivers called 911 as Mr. Williams

was concentrating on driving and looking for the closest turn around. Mr. Williams did not

recognize the Jeep stopped in front of the car and had never seen it before. Mr. Williams

got out of the rented truck and saw that Godsey was out of the car. Mr. Williams heard

the women in the Jeep screaming for Godsey to get back in the Jeep. Mr. Williams saw

that Godsey had in his hands the radio taken from Mr. Williams’s broken-down car. Mr.

Williams saw Godsey put a move on Ms. Rivers. Mr. Williams intercepted Godsey by the

Jeep's driver's side door. Mr. Williams tried to take the radio back from Godsey. Godsey

tussled with Mr. Williams for the radio. During the struggle Godsey was able to get inside

of the Jeep; however, he continued to fight with Mr. Williams. Mr. Williams was trying to

stop Godsey from leaving the scene; however, Godsey was able to drive off in the Jeep.
Ashland County, Case No. 20-COA-008                                                      6


Mr. Williams hurt his ribs and received scratches to his hands during the scuffle for the

radio when Godsey kicked and threw punches at him.

          {¶8}   Trooper Richard Pollard from the Ohio State Highway Patrol was working

on Saturday, September 21, 2019 when he came across a customized 1987 Chevy

Caprice at the shoulder of Southbound I-71 near milepost 194 in Ashland County. The

car appeared to be disabled and abandoned. Trooper Pollard put a 48-hour removal tag

on the 1987 Chevy Caprice and continued with his shift. While he was having lunch with

other Ohio State Highway Patrol Officers, Trooper Pollard received a call for a

theft/physical altercation around 194 milepost. Dispatch provided the description of the

vehicle as a tan or brown Jeep Cherokee with Pennsylvania plate “FVE 2250.” Dispatch

also informed them that a black male, who was later identified as Godsey, was driving the

Jeep Cherokee.        The Troopers attempted to stop the Jeep Cherokee but Godsey

continued driving southbound on I-71. During the chase, Trooper Pollard observed the

Pennsylvania license plate “FVE 2250” on the Jeep. Dispatch informed the Troopers

involved in the chase that the license plate on the Jeep Cherokee had been reported

stolen.

          {¶9}   Godsey eventually stopped the Jeep Cherokee and the Troopers

proceeded to conduct a felony stop. After Godsey was taken into custody, he was

advised of his rights. Godsey told Trooper Pollard that he was driving southbound on I-

71 when he saw the 1987 Chevy Caprice on the side of the road and believed that it

belonged to someone that he knew. Godsey stopped to check on the car and was jumped

by other people. During the video playback of the felony traffic stop Godsey told Trooper

Pollard that he had "found the license plate" but that he knew that it went to a Jeep.
Ashland County, Case No. 20-COA-008                                                    7


      {¶10} On October 10, 2019, the Ashland County Grand Jury returned a three-

count indicted against Godsey. Godsey was charged with Robbery, a second-degree

felony in violation of R.C. 2911.02(A)(2); Robbery, a third-degree felony in violation of

R.C. 2911.02(A)(3); and Receiving Stolen Property, a fifth-degree felony in violation of

R.C. 2913.51(A).

      {¶11} The case proceeded to a trial by jury on December 10, 2019. On December

11, 2019, the jury found Godsey guilty of all counts. On January 6, 2020, following a

sentencing hearing, the trial court sentenced Godsey to an indefinite sentence of 6 to 9

years in prison on Count One; 24 months in prison on Count Two; and 9 months in prison

on Count Three. The trial court ordered that the sentences on Counts Two and Three be

served concurrently to Godsey's sentence on Count One. The trial court credited Godsey

with 106 days served, and ordered that Godsey's supervision on post-release control be

revoked and that 789 days of Godsey's prior, suspended prison sentence be re-imposed.

                                     Assignments of Error

      {¶12} Godsey raises three Assignments of Error,

      {¶13} “I. APPELLANT’S CONVICTIONS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE.

      {¶14} “II. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

      {¶15} “III. THE TRIAL COURT'S DECISION NOT TO GIVE THE JURY AN

INSTRUCTION ON ATTEMPTED THEFT, OR THEFT, ON COUNT TWO OF THE

INDICTMENT WAS AN ABUSE OF DISCRETION.”
Ashland County, Case No. 20-COA-008                                                         8


                                               I. & II.

                                                  I.

       {¶16} In his First Assignment of Error, Godsey argues that there was insufficient

evidence to support his convictions. In his Second Assignment of Error, Godsey contends

his convictions are against the manifest weight of the evidence.

       1.1. Standard of Appellate Review– Sufficiency of the Evidence.

       {¶17} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

       {¶18} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the

evidence in the 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
Ashland County, Case No. 20-COA-008                                                                         9


paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97

N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess

the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]

would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”

State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at

paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on

sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by

the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,

¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.

Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

        1.1.1 Issue for Appeal: Whether, after viewing the evidence in the light most

favorable to the prosecution, the evidence, if believed, would convince the average mind

of Godsey’s guilt on each element of the crimes for which he was convicted beyond a

reasonable doubt.

        1.1.2 Count 1 – Robbery - Inflict, attempt to inflict, or threaten to inflict

physical harm on Donald Williams and/ or Jasia Rivers.

        {¶19} To find Godsey guilty of Robbery as alleged in Count I of the indictment, the

jury would have to find beyond a reasonable doubt that Godsey, in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense inflicted,

attempted to inflict, or threaten to inflict physical harm on Donald Williams and/or Jasia

Rivers. R.C. 2911.02(A)(2); 2T. at 2721. R.C. 2901.01 states, in relevant part, "'Physical




        1For clarity, references to Godsey’s jury trial will be referred to as “__T.__,” signifying the volume
and the page number.
Ashland County, Case No. 20-COA-008                                                     10


harm to persons' means any injury, illness, or other physiological impairment, regardless

of its gravity or duration."

       {¶20} In the case at bar, the evidence established that Godsey did not have an

ownership or possessory interest in the broken down car or the radio contained inside the

car. Nor did Godsey have consent of the owner or person authorized to give consent to

remove the radio from the broken down car owned by Williams and his partner Rivers.

See, R.C. 2913.02.

       {¶21} Godsey was inside the car when Williams and Rivers first saw him. 1T. at

144; 146. Rivers immediately called 911. Godsey pushed Rivers out of his way as he

clutched the radio he had removed from the car. 1T. at 148; 157. Rivers remained on

the telephone with 911. 1T. at 151. As Rivers reached inside Godsey’s SUV in an attempt

to take the keys from the ignition, Godsey was pushing her off and swinging “my way to

keep my arm from getting across.” 1T. at 154. Rivers received scars on her hand and

bruises on her arm. 1T. at 154.

       {¶22} Williams testified that he was half inside Godsey’s vehicle and Godsey was

fighting him in an attempt to flee the scene. 1T. at 166. Godsey started the vehicle and

began to drive away and Williams testified that he was either kicked or struck by the

vehicle. 1T. at 166-168; 179. Godsey was also throwing punches at Williams. Williams

received scratches on his knuckles and sore ribs. 1T. at 168; 179.

       {¶23} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Godsey in attempting or committing a theft offense or in fleeing immediately after the

attempt or offense inflicted, attempted to inflict, or threaten to inflict physical harm on
Ashland County, Case No. 20-COA-008                                                    11


Donald Williams and/or Jasia Rivers. We hold, therefore, that the state met its burden of

production regarding the element of Robbery and, accordingly, there was sufficient

evidence to support Godsey’s conviction.

          1.1.3. Count 2 – Robbery-use of force or threatened the use of force against

Donald Williams.

          {¶24} To find Godsey guilty of Robbery as alleged in Count II of the indictment,

the jury would have to find beyond a reasonable doubt that Godsey, in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense Godsey

used force or threatened the use of force against Donald Williams. R.C. 2911.02(A)(3).

2T. at 279. R.C. 2901.01 states, in relevant part, “force” is defined as "any violence,

compulsion, or constraint physically exerted by any means upon or against a person or

thing."

          {¶25} Godsey took the radio from Williams’s car without permission. 1T. at 164.

Godsey tussled with Williams while clutching the radio and attempting to make his

escape. 1T. at 165. Williams testified that he was half inside Godsey’s vehicle and

Godsey was fighting him in an attempt to flee the scene. 1T. at 166. Godsey started the

vehicle and began to drive away and Williams testified that he was either kicked or stuck

by the vehicle. 1T. at 166-168; 179. Godsey was also throwing punches at Williams.

Williams received scratches on his knuckles and sore ribs. 1T. at 168; 179.

          {¶26} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Godsey in attempting or committing a theft offense or in fleeing immediately after the

attempt or offense used force or threatened the use of force against Donald Williams. We
Ashland County, Case No. 20-COA-008                                                     12


hold, therefore, that the state met its burden of production regarding the element of

Robbery and, accordingly, there was sufficient evidence to support Godsey’s conviction.

      1.1.4. Count 3 – Receiving stolen property –Pennsylvania License Plate

Number FVE 2250.

      {¶27} To find Godsey guilty of receiving stolen property, the trier of fact would

have had to find that Godsey received, retained, or disposed of the property of another,

knowing or having reasonable cause to believe the property had been obtained through

the commission of a theft offense. R.C. 2913.51(A). A theft offense includes “theft,” which

involves knowingly obtaining control over the property of another without that person’s

consent. R.C. 2913.02(A)(1).

      {¶28} The criteria for determining whether a defendant knew or should have

known that property has been stolen were set forth in State v. Davis, 49 Ohio App.3d 109,

550 N.E.2d 966(8th Dist. 1988); State v. Yeargan, 5th Dist. Delaware No. 16CAA060028,

2017-Ohio-1325, ¶19. The factors include: 1) the defendant’s unexplained possession of

the merchandise; 2) the nature of the merchandise; 3) the frequency with which such

merchandise is stolen; 4) the nature of the defendant’s commercial activities; and 5) the

relatively limited time between the theft and the recovery of the merchandise. Id. at 112,

550 N.E.2d 966; Yeargan, ¶19. Knowledge that property is stolen may be inferred from

circumstantial evidence, such as a defendant’s unexplained possession of stolen

property. State v. Hankerson, 70 Ohio St.2d 87, 92, 434 N.E.2d 1362 (1982). R.C.

2901.22(B) sets forth the definition of how and when a person acts knowingly,

             A person acts knowingly, regardless of purpose, when the person is

      aware that the person’s conduct will probably cause a certain result or will
Ashland County, Case No. 20-COA-008                                                         13


       probably be of a certain nature. A person has knowledge of circumstances

       when the person is aware that such circumstances probably exist. When

       knowledge of the existence of a particular fact is an element of an offense,

       such knowledge is established if a person subjectively believes that there is

       a high probability of its existence and fails to make inquiry or acts with a

       conscious purpose to avoid learning the fact.

       {¶29} Whether a person acts knowingly can only be determined, absent a

defendant’s admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Johnson, 56 Ohio St.3d 35, 38,381 N.E.2d 637(1978)

citing State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313(1936): State v. Rojas, 64 Ohio

St.3d 131, 139, 592 N.E.2d 1376(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763

N.E.2d 695(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant

acted knowingly is a subjective one, but it is decided on objective criteria.” Id. citing State

v. Adams, 4th Dist. Ross No. 94 CA 2041, 1995 WL 360247(June 8, 1995) and State v.

Paidousis, 10th Dist. Franklin No. 00AP–118, 2001 WL 436079 (May 1, 2001). See also,

State v. Butler, 5th Dist. Holmes No. 2012–CA–7, 2012–Ohio–5030, ¶ 25.

       {¶30} In this case, Mr. Burdick did not give permission to Godsey to retain Mr.

Burdick's stolen license plate. When questioned by Trooper Pollard about the stolen

license plate Godsey responded that "he found the license plate" but he also knew that it

went to a Jeep. Accordingly, there is an inference that Godsey could not know that the

Pennsylvania license plate on the Jeep that he was driving belonged to another Jeep if

he just found it laying alongside the road or in a parking lot. Further, the video surveillance
Ashland County, Case No. 20-COA-008                                                         14


footage shows an SUV similar to Godsey’s is parking next to Mr. Burdick’s Jeep. The

male driver exited that vehicle and acted suspiciously at the back of Mr. Burdick’s Jeep.

         {¶31} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio

St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus, superseded by

State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct evidence inherently

possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the

syllabus.     Furthermore, “[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury’s fact-finding function is concerned, all that is required

of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.” Jenks, 61 Ohio St.3d at 272, 574 N.E. 2d

492. While inferences cannot be based on inferences, a number of conclusions can result

from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990),

citing   Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d

820(1955). Moreover, a series of facts and circumstances can be employed by a jury as

the basis for its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d

293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

         {¶32} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Godsey committed the crimes of receiving stolen property. We hold, therefore, that the

state met its burden of production regarding each element of the crimes of receiving stolen
Ashland County, Case No. 20-COA-008                                                       15


property and, accordingly, there was sufficient evidence to support Godsey’s convictions

for receiving stolen property.

       1.2. Standard of Appellate Review – Manifest Weight.

       {¶33} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                            ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with

       the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶34} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Ashland County, Case No. 20-COA-008                                                          16


Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

       {¶35} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

       1.2.1. Issue for Appellate Review: Whether the jury clearly lost their way and

created such a manifest miscarriage of justice that the convictions must be reversed and

a new trial ordered.

       {¶36} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of
Ashland County, Case No. 20-COA-008                                                        17


fact 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. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

       {¶37} In the case at bar, the jury heard the witnesses and viewed the evidence.

The jury saw and heard Williams, Rivers, and Burdick subject to cross-examination. The

jury heard Godsey’s attorney’s arguments and explanations about the evidence and his

actions. The trial judge instructed the jury on the lesser offense of Theft in relation to

Count I of the Indictment finding that the jury could find from the evidence that the state

failed to prove that Godsey inflicted, attempted to inflict, or threatened to inflict physical

harm on Donald Williams and/or Jasia Rivers. 2T. at 239-240; 278. Thus, a rational basis

exists in the record for the jury’s decision.
Ashland County, Case No. 20-COA-008                                                       18


       {¶38} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Godsey’s convictions are not

against the sufficiency or the manifest weight of the evidence. To the contrary, the jury

appears to have fairly and impartially decided the matters before them. The jury heard

the witnesses, evaluated the evidence, and was convinced of Godsey’s guilt. The jury

neither lost his way nor created a miscarriage of justice in convicting Godsey of the

offenses.

       {¶39} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes for which Godsey was convicted.

       {¶40} Godsey’s First and Second Assignments of Error are overruled.

                                                III.

       {¶41} In his Third Assignment of Error, Godsey contends that the trial judge

abused his discretion by failing to instruct the jury on the lesser-included offense of theft

on Count II of the Indictment.

       3.1 STANDARD OF APPELLATE REVIEW.

       {¶42} We review a trial court’s refusal to provide a requested jury instruction for

an abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).

Generally, “a trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh evidence and discharge its duty as the fact
Ashland County, Case No. 20-COA-008                                                      19


finder.” State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the

syllabus.

       {¶43} “Even though an offense may be statutorily defined as a lesser included

offense of another, a charge on such lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio

St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. In making this determination,

the court must view the evidence in a light most favorable to defendant. State v. Smith,

89 Ohio St.3d 323, 331, 731 N.E.2d 645(2000); State v. Wilkins, 64 Ohio St.2d 382, 388,

415 N.E.2d 303(1980). Nevertheless, an instruction is not warranted every time any

evidence is presented on a lesser-included offense. There must be “sufficient evidence”

to “allow a jury to reasonably reject the greater offense and find the defendant guilty on a

lesser included (or inferior-degree) offense.” State v. Shane, 63 Ohio St.3d at 632-633,

590 N.E.2d 272; State v. Conway, 108 Ohio St.3d at 240,842 N.E.2d at 1027, 2006-Ohio-

791 at ¶ 134. The Ohio Supreme Court has cautioned,

              Past decisions of this court have sometimes given the erroneous

       impression that, whenever there is “some evidence” that a defendant in a

       murder prosecution may have acted in such a way as to satisfy the

       requirements of the voluntary manslaughter statute, an instruction on the

       inferior-degree offense of voluntary manslaughter must always be given.

       See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201, 9 O.O.3d 148, 378

       N.E.2d 738, paragraph four of the syllabus. See, also, Tyler, supra, 50 Ohio

       St.3d at 37, 553 N.E.2d at 592. That clearly never has been the law in this
Ashland County, Case No. 20-COA-008                                                     20


       state, nor is it the law today. The “some evidence” referred to in those cases

       is simply an abbreviated way of saying that a jury instruction must be given

       on a lesser included (or inferior-degree) offense when sufficient evidence is

       presented which would allow a jury to reasonably reject the greater offense

       and find the defendant guilty on a lesser included (or inferior-degree)

       offense.

              To require an instruction to be given to the jury every time “some

       evidence,” however minute, is presented going to a lesser included (or

       inferior-degree) offense would mean that no trial judge could ever refuse to

       give an instruction on a lesser included (or inferior-degree) offense. Trial

       judges are frequently required to decide what lesser-included (or inferior-

       degree) offenses must go to the jury and which must not. The jury would

       be unduly confused if it had to consider the option of guilty on a lesser

       included (or inferior-degree) offense when it could not reasonably return

       such a verdict.

State v. Shane, 63 Ohio St.3d at 632-633, 590 N.E.2d 272 (emphasis in original).

       {¶44} In our disposition of Godsey’s First and Second Assignments of Error we

found that there was sufficient evidence that Godsey used force or threatened the use of

force against Donald Williams in violation of R.C. 2911.02(A)(3). Accordingly, to be

entitled to a jury instruction on the lesser offense of Theft, the record must contain

sufficient evidence which would allow a jury to reasonably reject the greater offense and

find the defendant guilty on a lesser included (or inferior-degree) offense.
Ashland County, Case No. 20-COA-008                                                      21


       {¶45} There is no question that Godsey committed a theft offense when he stole

the radio from Williams’s car. The question is therefore, whether the record contains

sufficient evidence for a jury to reasonably reject the greater offense by finding that

Godsey did not use force or threatened the use of force against Donald Williams in

attempting or committing a theft offense or in fleeing immediately after the attempt or

offense.

       {¶46} “Force” means any violence, compulsion, or constraint physically exerted

by any means upon or against a person or thing. R.C. 2901.01(A)(1). In the case at bar,

evidence was presented that Godsey took the radio from Williams’s car without

permission. 1T. at 164. Godsey tussled with Williams while clutching the radio and

attempting to make his escape. 1T. at 165. Godsey presented no evidence to controvert

the fact that he did not have a right to remove the radio from Williams’s car. Godsey did

not present any evidence to controvert the testimony of Williams that Godsey struggled

to maintain control of the radio and to prevent Williams from obtaining the radio as Godsey

tried to make his escape.

       {¶47} Under these particular facts and circumstances we cannot find that the trial

court abused its discretion in determining that there was not sufficient evidence for a jury

to reasonably reject the greater offense, in this instance robbery pursuant to R.C.

2911.02(A)(3), and find Godsey guilty of the lesser offense of theft pursuant to R.C.

2913.02.

       {¶48} Godsey’s Third Assignment of Error is overruled.
Ashland County, Case No. 20-COA-008                                              22


       {¶49} The judgment of the Ashland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Wise, John, J., and

Wise, Earle, J., concur
