[Cite as State v. Wright, 2011-Ohio-5761.]



                             STATE OF OHIO, HARRISON COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )      CASE NO.     11 HA 2
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS. -                                )      OPINION
                                               )
CURTIS WRIGHT,                                 )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
                                                   Court, Case No. CRI-2010-14.

JUDGMENT:                                          Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney T. Shawn Hervey
                                                   Prosecuting Attorney
                                                   111 West Warren Street
                                                   P.O. Box 248
                                                   Cadiz, Ohio 43907

For Defendant-Appellant:                           Attorney Timothy Young
                                                   Ohio Public Defender
                                                   Attorney E. Kelly Mihocik
                                                   Assistant Ohio Public Defender
                                                   250 East Broad Street, Suite 1400
                                                   P.O. Box 272
                                                   Columbus, Ohio 43215

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                   Dated: November 4, 2011
                                                                                          -2-



VUKOVICH, J.


       ¶{1}   Defendant-appellant Curtis Wright appeals from his burglary conviction
entered in the Harrison County Common Pleas Court. Appellant argues that the trial
court should have granted him a new trial based upon the post-trial confession of a
defense witness. However, it was within the trial court’s province to disbelieve this
witness’s post-trial version of events.
       ¶{2}   Appellant then raises evidentiary issues such as the refusal to allow him
to ask about police reports which he and a defense witness caused to be filed and the
alleged admission of hearsay and other acts testimony. These decisions were within
the trial court’s sound discretion.
       ¶{3}   Finally, he alleges that the verdict was against the manifest weight of the
evidence. However, the jury did not clearly lose its way in evaluating the evidence.
For the following reasons, the judgment of the trial court is affirmed.
                               STATEMENT OF THE CASE
       ¶{4}   Appellant was indicted for burglarizing a neighbor’s house while they
were on vacation. At a jury trial, nineteen-year-old Shawn Ellenbaugh testified that
appellant was his mother’s live-in boyfriend.         He stated that on the night of the
burglary, he and appellant walked to the neighbor’s house because appellant wished
to break in. (Tr. 216). He testified that appellant threatened to kill him if he told
anyone. (Tr. 217). When they arrived, appellant tried to pry open the window but then
used a rock to break the window. Shawn stated that he climbed through the window
and unlocked the door for appellant. (Tr. 217-218). He testified that they went through
the house stealing jewelry and money. (Tr. 221).
       ¶{5}   According to Shawn, they then walked to his uncle’s house where
appellant borrowed a car. He said they drove to Steubenville where appellant bought
crack with the stolen money and was told that the jewelry was fake. (Tr. 225). They
went back to the burglarized house and stole a big screen television. When it would
not fit in the trunk, they put it in the front seat, and drove back to Steubenville to sell it.
Shawn testified that no one wanted an old model television, so they left it at a car
wash. (Tr. 228). He stated that they arrived home just before 7:00 a.m. (Tr. 229).
                                                                                    -3-


        ¶{6}   A cousin testified that she arrived at the house where Shawn and
appellant lived at 6:30 a.m. after a night-shift at work. She stated that she saw the car
pull in the drive with appellant in the driver’s seat and Shawn in the passenger seat.
(Tr. 254-256).
        ¶{7}   The owner of the vehicle testified that appellant arrived at his house at
midnight on January 17, 2010 and borrowed his car. (Tr. 165). The next morning he
went to the house where appellant lived to retrieve his car and noticed the trunk latch
was broken and the dashboard was scratched. (Tr. 169-170). In the vehicle, he found
a screwdriver, a broken necklace, and a gift card holder addressed to the person
whose house had been burglarized. (Tr. 171, 173). His girlfriend confirmed that it was
appellant who borrowed their vehicle. (Tr. 188).
        ¶{8}   Appellant’s girlfriend, who is Shawn’s mother, testified that appellant
arrived home at 11:00 p.m. (Tr. 337). She claimed that she went with appellant to her
brother’s house to borrow his car, they went to Wintersville, and they returned home at
1:00 a.m. at which point they went to bed. (Tr. 339). She testified that appellant never
left the bed that night. (Tr. 341).
        ¶{9}   Her fourteen-year-old son, Brandon Ellenbaugh, testified for the defense
that his mother and appellant went to his uncle’s to borrow a car and arrived home at
midnight or 1:00 a.m. (Tr. 373). Brandon said that his brother Shawn then asked him
if he wanted to take a ride in their uncle’s car but he refused to accompany Shawn. He
testified that he saw Shawn return with the vehicle in the morning.        According to
Brandon, the next day, Shawn brought him to the house he had burglarized the night
before, but Shawn noticed that someone had cleaned up the glass so they left. (Tr.
376).
        ¶{10} On September 30, 2010, the jury found appellant guilty of third-degree
felony burglary in violation of R.C. 2911.12(A)(3). On October 28, 2010, appellant filed
a motion for a new trial based upon newly discovered evidence. Brandon Ellenbaugh
had delivered a written statement to the police station on October 26, 2010, claiming
that it was he and Shawn who burglarized the house in the early morning hours of
January 17, 2010.
                                                                                      -4-


       ¶{11} At a hearing, Brandon testified that they pushed their uncle’s car out of
their drive and drove to the neighbor’s house. He described how they went through
the house and what they stole. He said that Shawn went into an apartment in Cadiz
for thirty minutes and reported that no one wanted to buy the television and the jewelry
was fake. He stated that they left the television at a car wash in Cadiz. (Tr. 19).
       ¶{12} The detective who took Brandon’s statement testified that Brandon told
him that he missed appellant at their house and that he wanted to get him released.
Brandon disclosed his belief that he would not be incarcerated because he was a
juvenile. (Tr. 8-9). The detective believed that the child had been coached or that he
fabricated the story to assist appellant. (Tr. 9).
       ¶{13} On December 28, 2010, the court denied the motion for a new trial. The
court opined that Brandon’s new story was not credible. The court noted that both of
Brandon’s stories lacked detail. The court pointed out that the jury did not place much
weight on Brandon’s original testimony when he testified for the defense and that this
new story was also not credible. Appellant was then sentenced to five years in prison,
and he filed a timely notice of appeal.
                       ASSIGNMENT OF ERROR NUMBER ONE
       ¶{14} Appellant’s first assignment of error provides:
       ¶{15} “A TRIAL COURT MUST GRANT A DEFENDANT’S MOTION FOR A
NEW TRIAL WHEN A WITNESS RECANTS HIS TESTIMONY AND THAT WITNESS
CONFESSES THAT HE COMMITTED THE CRIME.”
       ¶{16} Pursuant to Crim.R. 33(A)(6), a new trial may be granted on motion of a
defendant whose substantial rights are materially affected by newly discovered
evidence material to the defense which could not with reasonable diligence have been
discovered and produced at the trial. A new trial cannot be granted on these grounds
unless the following factors are met: (1) the evidence discloses a strong probability
that it will change the result; (2) the evidence has been discovered since trial; (3) the
evidence could not in the exercise of due diligence have been discovered before trial;
(4) the evidence is material to the issues; (5) the evidence is not merely cumulative to
former evidence; and (6) the evidence does not merely impeach or contradict former
evidence. State v. Petro (1947), 148 Ohio St. 505, syllabus.
                                                                                    -5-


      ¶{17} The decision to grant or deny a new trial based upon newly discovered
evidence falls within the trial court’s sound discretion. State v. LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, ¶85.      Said decision should not be reversed absent a gross
abuse of that discretion. Petro, 148 Ohio St. at 507-508.
      ¶{18} Merely because an important witness recants does not per se entitle a
defendant to a new trial. State v. Perdue, 7th Dist. No. 04MA119, 2005-Ohio-2703,
¶16; State v. Willard (Jan. 10, 1991), 7th Dist. Nos. 88C57, 89C59. See, also, State v.
Walker (1995), 101 Ohio App.3d 433, 435 (8th Dist.); State v. Pirman (1994), 94 Ohio
App.3d 203, 209 (11th Dist.); State v. Tijuerina (1994), 99 Ohio App.3d 7, 12 (3d Dist.).
Rather, where a witness recants and/or offers a post-trial confession, the trial court
must determine which of the contradicting testimonies of that witness are credible. Id.
See, also, State v. Pasco (Sept. 10, 1987), 7th Dist. Nos. 82C40, 83C28 (trial court
has discretion to determine whether later confession of another person is credible). It
is only if the trial court determines that the recantation is believable, must the court
then consider whether the confession would materially affect the outcome of trial.
Perdue, 7th Dist. No. 04MA119 at ¶18, 27; Willard, 7th Dist. Nos. 88C57, 88C59.
      ¶{19} Some relevant considerations in weighing the competing versions of
testimony are: whether the judge reviewing the new trial motion also presided over the
trial; whether the witness is a relative of the defendant or otherwise interested in his
success; and whether the new testimony contradicts evidence proffered by the
defense at trial.   State v. Shakoor, 7th Dist. No. 10MA64, 2010-Ohio-6386, ¶27.
According to the Ohio Supreme Court:
      ¶{20} “The trial judge is in a peculiarly advantageous position, under the
prevailing circumstances, to pass upon the showing made for a new trial. He has the
benefit of observing the witnesses at the time of the trial, is able to appraise the
variable weight to be given to their subsequent affidavits, and can often discern and
assay the incidents, the influences, and the motives that prompted the recantation. He
is, therefore, best qualified to determine what credence or consideration should be
given to the retraction, and his opinion is accordingly entitled to great weight. If the
rule were otherwise, the right of new trial would depend on the vagaries and
vacillations of witnesses rather than upon a soundly exercised discretion of the trial
                                                                                    -6-


court.” Taylor v. Ross (1948), 150 Ohio St. 448, 452, quoting State v. Wynn, 178
Wash. 287, 34 P.2d 900, 901.
      ¶{21} Here, the child told the detective that he missed appellant. Appellant
was his mother’s live-in boyfriend. Other testimony established that appellant was his
mother’s cousin and thus a relative of the child. As such, the child has an interest in
appellant’s success. See Shakoor, 7th Dist. No. 10MA64 at ¶27. In fact, he told the
detective his theory that a juvenile such as himself would not be incarcerated for the
offense like appellant would. The detective did not believe that the child was present
at the burglary with Shawn.
      ¶{22} Upon questioning at the new trial hearing, there were many details about
the house and the location of items that the child did not know. He brought a hand
drawn map with him in an attempt to prove that he knew the house’s layout; however,
he could have been coached on the map drawing as he did not draw it at trial. Even
so, the stairs were not located in the correct place on the child’s map.        (Tr. 50).
Moreover, the child did not describe how there was an attempt to pry open the
window.    (Tr. 16).   However, testimony by those who discovered the burglary
establishes that there were fresh pry marks at the scene which corresponded with
Shawn’s testimony that appellant tried to pry open the window.             Moreover, a
screwdriver was found in the borrowed vehicle which could have been used in an
attempt to pry open the window.
      ¶{23} The trial judge determined that the fourteen-year-old child’s confession
was not credible. The court noted that the child’s attempted alibi for appellant at the
first trial was not found to be credible either, where he stated that Shawn left in the
vehicle after his mother and appellant brought it home and that only Shawn returned in
the car the next morning. The same judge presided over the trial and the new trial
hearing and heard the child testify both times. See Shakoor, 7th Dist. No. 10MA64 at
¶27. The child testified for the defense at the trial, and thus, his new story conflicted
with prior defense evidence. See id.
      ¶{24} The trial court was in the best position to determine whether the child’s
confession was credible. The court heard him testify twice and was able to view his
demeanor, voice inflection, eye movements, and gestures. The court did not commit a
                                                                                      -7-


gross abuse of discretion in determining that the child first attempted to provide
appellant with a defense by implicating only Shawn and then, when that did not work,
attempted to provide appellant with a better defense by filing a false confession,
knowing that a child under his brother’s influence would be treated more leniently than
an adult with a lengthy criminal record. As such, the trial court properly denied the
motion for a new trial, and this assignment of error is overruled.
                      ASSIGNMENT OF ERROR NUMBER TWO
       ¶{25} Appellant’s second assignment of error alleges:
       ¶{26} “MR. WRIGHT’S CONSTITUTIONAL RIGHTS TO CONFRONT THE
WITNESSES AGAINST HIM WERE VIOLATED WHEN THE TRIAL COURT
PROHIBITED HIM FROM CROSS-EXAMINING PENNY WILSON AND BRITTANI
RILEY ON MATTERS THAT WOULD HAVE IMPACTED THEIR CREDIBILITY AND
EXPOSED BIAS, PREJUDICE, AND ULTERIOR MOTIVES AND SUPPORTED HIS
DEFENSE.”
       ¶{27} On the second morning of trial, a bench conference was held where the
court stated that it had a copy of a police report filed the evening before alleging that
Bridget Ellenbaugh (appellant’s girlfriend’s daughter) received threatening comments
from her aunt (Penny Wilson) and her cousin (Brittani Riley), two witnesses who would
be testifying for the state. (Tr. 204). The report was retained as a court exhibit for
purposes of appeal. According to the exhibit, appellant called the police to report that
Bridget told him that Penny and Brittani were threatening her about her testimony to be
presented the next day. The police obtained a statement from Bridget, who reported
that her aunt and cousin asked her if appellant was threatening her and asked her to
sign a paper stating the appellant was threatening her. At one point, while Penny was
in the car, Brittani told Bridget that her kids could be taken away from her if she did not
recant her statement, at which point Penny instructed Brittani to get in the car. Brittani
then asked Bridget if she could call her later.
       ¶{28} The state asked that the trial court prohibit the defense from raising
these allegations during the witnesses’ testimony, stating that the claim had not yet
been investigated and the witnesses could end up pleading the Fifth Amendment. (Tr.
                                                                                                   -8-


205). The defense argued that the allegations were relevant to the veracity of Penny
and Britanni. (Tr. 205-206).
        ¶{29} The court ruled that the probative value of the allegations was
outweighed by the prejudicial effect since no investigation had yet taken place, noting
that a trial could be interrupted merely by a defendant filing a report during trial. (Tr.
207). The court later examined Bridget to ensure that she had not been threatened
into testifying and that she would testify truthfully. (Tr. 207, 386). Bridget then testified
that her cousin, Brittani, did not sleep over on the night of the burglary. (Tr. 392).
        ¶{30} Brittani Riley, however, testified that, because she had to work until 6:00
a.m. that Saturday morning and had to return to work at 2:00 p.m., she slept over at
the house where appellant lived because it was closer to work than her own home. (Tr.
254). She arrived at 6:30 a.m. and about twenty minutes later, she saw a vehicle pull
in with appellant in the driver’s seat and Shawn Ellenbaugh in the passenger seat. (Tr.
256). She noticed that the trunk was open and that they could not shut it. (Tr. 256-
257).
        ¶{31} Brittani then testified that later that evening, she asked Shawn why they
came in so late.       He told her that appellant would kill him if he told anyone but
eventually started crying and told her about the burglary. (Tr. 263). (Testimony such
as this and the court’s cautionary instructions thereon are issues addressed in the next
assignment of error.) She told her mother, Penny Wilson, in hopes that her mother
could help because she was formerly a police officer. Her mother testified that when
she spoke with Shawn, he was crying and shaking. She asked him to do the right
thing, and he agreed to confess to the police. (Tr. 285).
        ¶{32} Appellant argues that by refusing to allow questioning of these two
witnesses about the allegation that they tried to intimidate Bridget Ellenbaugh into
changing her testimony,1 he was denied the right to meaningful cross-examination. He
urges that if the jury heard about the police report, it would not only have damaged the
credibility of these two witnesses but it also would have reinforced that they were
biased against him.


        1
         Appellant does not argue that Bridget’s testimony was actually influenced; rather, the argument
is focused on the character of Penny and Brittani.
                                                                                      -9-


       ¶{33} Initially, we note that an appellate court need not determine the propriety
of an order granting or denying a motion in limine, which is merely a preliminary ruling,
unless the claimed error is preserved by an objection, proffer, or ruling on the record at
the proper point during the trial. State v. Maurer (1984), 15 Ohio St.3d 239, 259-260
(the failure to preserve a preliminary ruling constitutes waiver). Although the matter
was discussed and ruled upon on the record mid-trial, this was specifically presented
as and labeled in limine ruling on the state’s request to exclude evidence. (Tr. 207).
After the in limine bench conference, Shawn testified about the details of the burglary
he helped commit. Then, Brittani and Penny testified. Nowhere during the testimony
of Penny or Britanni was the in limine ruling sought to be changed into a final ruling.
       ¶{34} One of rationales behind the rule is that the court should make its final
ruling in context. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶59 (objecting
party must challenge evidence during trial when issue is presented in full context);
State v. Grubb (1986), 28 Ohio St.3d 199, 201-202 (it is the potential treatment of an
issue to be later resolved when it arises in the context of the trial where the trial court
may change its mind based upon circumstances that are developed). Here, this would
refer to the direct testimony of these witnesses being presented in order to determine
the whole context of the contested items said to have bearing on their credibility. See
State v. Menton, 7th Dist. No. 07MA70, 2009-Ohio-4604, ¶58 (raised before nurse’s
testimony but not during).
       ¶{35} In any event, the court’s ruling was not erroneous. Appellant does not
cite Evidentiary Rules here. However, he argues the evidence could have shown bias
and could have exposed that the witnesses were not credible. Evid.R. 403, 608 and
616 appear most relevant.
       ¶{36} Evid.R. 608(B) provides that specific instances of the conduct of a
witness, for the purposes of attacking the witness’ character for truthfulness may in the
discretion of the court, if clearly probative of untruthfulness, be inquired into on cross-
examination of the witness concerning the witness's character for untruthfulness.
Pursuant to Evid.R. 616(A), “Bias, prejudice, interest, or any motive to misrepresent
may be shown to impeach the witness either by examination of the witness or by
extrinsic evidence.”
                                                                                    - 10 -


       ¶{37} Appellant states that the allegations would have helped establish his
belief that the family was biased against him because they wanted him out of Pam
Wilson’s life. However, he did not ask either Penny or Bridget about this theory of his.
Defense counsel did begin asking Penny whether she disliked appellant but then
discontinued this line of questioning without attempting to elicit evidence on his theory.
(Tr. 288). He could have questioned them on this topic but did not.
       ¶{38} We also note that appellant’s brief does not provide specifics or explain
how exactly credibility or bias would be established. The only reason we know about
the contents of the report was from ordering the exhibit from the trial court, not from
the contents of appellant’s brief, which only mentioned a general allegation of
threatening by Penny and Brittani.
       ¶{39} Notably, nothing in the report influences Penny’s character for
truthfulness.   In fact, it states that Penny was concerned that Bridget was being
untruthful and expressed worry that appellant was coercing her niece’s testimony.
And, Penny was in the car when Brittani allegedly made the unfortunate statement
about the possibility that Bridget’s children could be taken away.
       ¶{40} Although appellant views the statement allegedly made by Bridget as
threatening, it could be construed as a concerned cousin expressing what could
happen for perjuring oneself in order to remain under a roof with a burglar who is
dating your mother even though they are said to be first cousins.         This does not
establish a specific instance of untruthfulness or significantly affect her credibility.
Rather, it is a family member taking one person’s side over another’s and an
admonition to tell the truth.
       ¶{41} Evidence Rule 403(A) requires the court to exclude the evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” A criminal defendant's right to
confront and cross-examine a witness is not unlimited, and the trial court retains wide
latitude under the Confrontation Clause to impose reasonable limits on cross-
examination due to concerns regarding issues such as harassment, prejudice, and
confusion of issues. Delaware v. Van Arsdall (1986), 475 U.S. 673, 679; State v.
Green (1993), 66 Ohio St.3d 141, 147. The limitation of cross-examination lies within
                                                                                    - 11 -


the sound discretion of the trial court, viewed in relation to the particular facts of the
case.    State v. Acre (1983), 6 Ohio St.3d 140, 145 (such a decision will not be
disturbed in the absence of a clear showing of an abuse of discretion).
        ¶{42} As the state urges, the trial court placed a reasonable limit on cross-
examination. The state points out that the allegations of intimidation were in a police
report that had not yet been investigated and they are appellant’s interpretation of an
event occurring between a defense witness who lived with appellant and her
concerned aunt and cousin. As the trial court noted, a defendant could file a report
mid-trial to generate new, uninvestigated evidence to use to impeach a witness.
Considering the particular concerns in this case and incorporating the review
conducted supra, we conclude that the trial court did not clearly abuse its discretion in
granting the state’s motion to exclude this evidence from trial, especially where Bridget
did not change her statement and maintained her stance in favor of appellant’s
defense. For all of these reasons, this assignment of error is overruled.
                     ASSIGNMENT OF ERROR NUMBER THREE
        ¶{43} Appellant’s third assignment of error states:
        ¶{44} “THE     TRIAL     COURT’S        CURATIVE       INSTRUCTIONS         WERE
INSUFFICIENT TO CURE THE REPEATED, IMPROPER ALLEGATIONS THAT MR.
WRIGHT ENGAGED IN OTHER BAD ACTS, INCLUDING, MAKING THREATS
AGAINST CERTAIN WITNESSES AND ENGAGING IN OTHER CRIMINAL
CONTACT.”
        ¶{45} Appellant complains that witnesses were permitted to provide hearsay
testimony and testimony on other bad acts in violation of Evid.R. 404(B). He urges
that the court’s instructions did not cure the prejudicial effect on his defense.
        ¶{46} According to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in conformity
therewith but may be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. It is well-established that the admission or exclusion of evidence rests within
the sound discretion of the trial court and an evidentiary decision, such as one
regarding other acts evidence, will not be reversed absent an abuse of discretion that
                                                                                   - 12 -


causes material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815,
¶62. An abuse of discretion connotes more than an error of law or judgment; it implies
that the court's attitude was unreasonable, arbitrary, or unconscionable.       State v.
Adams (1980), 62 Ohio St.2d 151, 157.
      ¶{47} First, Shawn testified that appellant ordered him to assist in the burglary,
disclosing that he feared appellant and that appellant had told him that he would kill
him if he ever revealed any acts that Shawn had ever witnessed. This is not hearsay
as it was a statement of the opposing party offered against that party.          Evid.R.
801(D)(2).    In fact, it was an inculpatory statement by the defendant made
contemporaneously with the commission of the offense. Thus, it was not “other acts”
evidence. Rather, Shawn could testify that appellant threatened to kill him as it is part
of the immediate background of the alleged act which forms the foundation of the
crime charged in the indictment. State v. Curry (1975), 43 Ohio St.2d 66, 73 (scheme,
plan, or system evidence in acts leading up to offense). The statement was part of the
background of carrying out the offense. See State v. Gonzalez, 7th Dist. No. 06MA58,
2008-Ohio-2749, ¶109 (evidence of the defendant threatening a witness is relevant as
it links him to the offense for purposes of identity). In any event, no objection was
entered to that portion of Shawn’s testimony.
      ¶{48} Next, when asked why he took this threat seriously, Shawn responded
that appellant had “been in trouble his whole life, in and out of prison.” (Tr. 216-217).
Pursuant to Evid.R. 404(A), evidence of a defendant's character or a trait of character
offered by the state is not admissible for the purpose of proving action in conformity
therewith on a particular occasion (unless offered in rebuttal of the defendant’s
evidence of his character). Thus, the defense objected to this answer and moved to
strike it. The court sustained the objection, and ordered the jury to put it out of their
mind and disregard the last comment. (Tr. 217). We presume that the jury followed
the court's curative instruction. See State v. Loza (1994), 71 Ohio St.3d 61, 75; State
v. Young, 7th Dist. No. 09MA100, 2011-Ohio-2646, ¶49.
      ¶{49} Appellant next complains that Bridget testified that Shawn told her that
appellant would kill him if he told anyone about the burglary.       Appellant originally
objected to this. (Tr. 260). The state then pointed out that Shawn had already testified
                                                                                     - 13 -


to this statement made directly by the defendant. Thus, it was only coming in to show
how Shawn came to the decision to confess and why the witness involved her mother.
At that point, defense counsel stated that the court could give a curative instruction to
tell that jury that the statement was not to prove the truth but would only be used to
show a timeline. (Tr. 261). The court then overruled the objection and instructed the
jury that Shawn already testified, that they should consider the strength of Shawn’s
testimony on its own without considering that the present witness was repeating what
Shawn told her. The court explained that the testimony was being presented only to
lay a groundwork for what actions other people took after their conversation with
Shawn. (Tr. 262). The witness then continued telling the story of what Shawn told her
without further objection. The court reiterated its cautionary instruction. Similarly,
Penny Wilson related the story she heard as background for why she asked Shawn to
confess.   Once again, the court gave a limiting instruction, pointing out that the
testimony was only provided for background and not to prove the truth of Shawn’s
testimony. (Tr. 270-271).
       ¶{50} The testimony protested here was hearsay if offered to prove the truth of
the matter asserted. See Evid.R. 801(C). Yet, Shawn had already testified to this,
and his testimony was not hearsay. Although the defense objected at first, counsel
then seemed to acknowledge that the evidence could be presented as long as the jury
was informed that it was only Shawn’s testimony about the burglary that could be
evaluated for determining the truth of the burglary allegations. The trial court provided
a cautionary instruction that such testimony was not to be considered as the truth but
was only being permitted to show why the cousin involved her mother and why the
aunt brought Shawn to the police station.
       ¶{51} In conclusion of this topic, we presume that the jury followed the court's
curative instruction. See Loza, 71 Ohio St.3d at 75; Young, 7th Dist. No. 09MA100 at
¶49. Moreover, the defense did not enter further objections. Finally, because Shawn
already testified to his version of the night’s events, a partial reiteration of what Shawn
told his cousin and aunt was not prejudicial.
       ¶{52} On another topic, appellant notes that on cross-examination, the defense
tried to discredit Bridget for not making an official statement right away. At one point,
                                                                                   - 14 -


she stated that appellant had threatened her.      As this was not responsive to the
particular question asked, the court sustained the defense’s objection. (Tr. 274). A
discussion was had about whether the state could delve into the matter on redirect,
and the defense seemed to agree that she could be asked why she did not file a report
immediately. (Tr. 275). The witness then testified that appellant threatened her and
she was afraid. (Tr. 277). This is not hearsay. See Evid.R. 801(D)(2). Moreover, it
was a response to a door opened on cross-examination.
      ¶{53} Finally, appellant takes issue with two witnesses who disclosed that
appellant had been accused of stealing gas. Penny mentioned that she went over to
see Shawn as she knew appellant would not be home because he had to go to court
for stealing gas. The court sustained the objection and told the jury that her statement
was not pertinent and that the jury must disregard the answer. (Tr. 281-283). Later, in
testifying about how he verified some of Shawn’s statements after Shawn confessed, a
detective mentioned, “there was an arrest in Steubenville for theft of gasoline”. (Tr.
321). After a sustained objection, the court instructed the jury that they must disregard
the testimony concerning that matter.
      ¶{54} Initially, we note that Shawn had already testified without objection that
appellant’s truck had been impounded in Steubenville in providing background for why
they had to borrow a vehicle for the burglary. (Tr. 214). Additionally, evidence of a
police report concerning the impoundment of appellant’s truck hours before the
burglary also came in during the testimony of appellant’s girlfriend, a defense witness.
(Tr. 353). Thus, it was not prejudicial when mentioned and struck later. Lastly, we
presume the jury followed the court’s instructions to disregard the testimony. See
Loza, 71 Ohio St.3d at 75; Young, 7th Dist. No. 09MA100 at ¶49. As such, this
assignment of error is overruled.
                     ASSIGNMENT OF ERROR NUMBER FOUR
      ¶{55} Appellant’s fourth assignment of error contends:
      ¶{56} “MR. WRIGHT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
      ¶{57} Weight of the evidence deals with the inclination of the greater amount of
credible evidence to support one side of the issue over the other. State v. Thompkins
                                                                                   - 15 -


(1997), 78 Ohio St.3d 380, 387.      In reviewing a manifest weight of the evidence
argument, the reviewing court examines the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether
in resolving conflicts in the evidence, the trial court clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. Id.
       ¶{58} A reversal on weight of the evidence is ordered only in exceptional
circumstances. Id. In fact, where a criminal case has been tried by a jury, only a
unanimous appellate court can reverse on the ground that the verdict was against the
manifest weight of the evidence. Id. at 389, citing Section 3(B)(3), Article IV of the
Ohio Constitution (and noting that the power of the court of appeals is limited in order
to preserve the jury's role with respect to issues surrounding the credibility of
witnesses).
       ¶{59} In conducting our review, we proceed under the theory that when there
are two conflicting versions of events, neither of which is unbelievable, it is not our
province to choose which one should be believed. State v. Gore (1999), 131 Ohio
App.3d 197, 201.     Rather, we defer to the jury who was best able to weigh the
evidence and judge the credibility of witnesses by viewing the demeanor, voice
inflections, and gestures of the witnesses testifying before it. See Seasons Coal Co. v.
Cleveland (1994), 10 Ohio St.3d 77, 80; State v. DeHass (1967), 10 Ohio St.2d 230,
231.
       ¶{60} Contrary to a suggestion in appellant’s brief, we do not consider
Brandon’s post-trial confession under this assignment of error.       The effect of the
confession was considered in the first assignment of error; this assignment of error
deals with reviewing the weight of the evidence to support the jury verdict. As the jury
verdict had nothing to do with Brandon’s post-trial confession, it is irrelevant to this
assignment.
       ¶{61} Here, the jury had before it the testimony of Shawn Ellenbaugh, a
nineteen-year-old who voluntarily turned himself into the police despite the fact that he
was not viewed as a suspect. He incriminated himself for burglary in testifying against
his mother’s live-in boyfriend (who is also said to be his mother’s cousin).          He
                                                                                    - 16 -


described the roles that he and appellant played in the night’s events. He stated that
he waited at the end of his uncle’s drive while appellant borrowed the car from him.
       ¶{62} The jury believed this testimony over the testimony of Shawn’s mother,
who stated that she was the one who waited around the corner of the house while
appellant borrowed the car from her brother. She also stated that she and appellant
were together from when they borrowed the car until they went to bed at 1:00 a.m. and
that he never left the bed. (Tr. 337-33-341). The jury apparently disbelieved this
testimony.
       ¶{63} Shawn stated that he and appellant walked to the neighbor’s house and
burglarized it, then borrowed the car. A cousin testified that she saw both appellant
and Shawn return to their house in the car in the morning. The jury believed this
testimony over the testimony of Brandon, who stated that Shawn left the house in the
car that night after his mother and appellant brought it home and that Shawn returned
alone in the car the next morning.
       ¶{64} As appellant points outs, Shawn had two prior juvenile felony
adjudications, including breaking and entering and making a bomb threat, and he
admitted that he did not like appellant or his mother. (Tr. 212-213, 247-248). The jury
heard this. Still, they found his testimony believable. The jury saw him testify live;
they witnessed his voice inflection, demeanor, eye movements, and gestures. Thus,
they were in the best position to judge his credibility on whether appellant assisted him
(or directed him) in burglarizing the neighbor’s house. As Shawn’s testimony was not
incredible or unrealistic, there is no reason to find that the verdict was contrary to the
manifest weight of the evidence.
       ¶{65} Moreover, under all versions, it was appellant who at midnight borrowed
the vehicle that was used in transporting the items away from the burglary. (Tr. 165).
Appellant had promised to return the vehicle in two hours. However, at 7:30 a.m., it
was parked in appellant’s driveway with a broken trunk latch and a scratched
dashboard, both the result of forcing the oversized television into the car. (Tr. 169). In
reading the entire transcript and weighing all the evidence, we cannot sit as the
thirteenth juror and say that the jury clearly lost its way and created such a manifest
                                                                                     - 17 -


miscarriage of justice in finding appellant guilty of burglary. This assignment of error is
overruled.
       ¶{66} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, P.J., concurs.
DeGenaro, J., concurs.
