[Cite as State v. Wood, 2012-Ohio-1780.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.     24749

v.                                                     :            T.C. NO.   11CR429

DONALD G. WOOD                                         :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                 :

                                                       :

                                           ..........

                                           OPINION

                         Rendered on the        20th       day of      April     , 2012.

                                           ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BYRON K. SHAW, Atty. Reg. No. 0073124, 4800 Belmont Place, Huber Heights, Ohio
45424
      Attorney for Defendant-Appellant

                                           ..........

FROELICH, J.

        {¶ 1}      Donald Wood was found guilty by a jury of one count of burglary in

violation of R.C. 2911.12(A)(3), and was sentenced to community control sanctions for a
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period not to exceed five years.1 He appeals from his conviction.

         {¶ 2}        Wood was arrested on February 4, 2011, on suspicion of the burglary of a

house on Claybeck Drive in Huber Heights earlier that day. Wood was later indicted for

burglary,2 and the case was tried to a jury.

         {¶ 3}        The State presented testimony from several neighbors of the burglarized

house, the officers who investigated the crime, and the officers who arrested and interviewed

Wood. After the State’s evidence was presented, Wood made a Crim.R. 29(A) motion for

acquittal, which was overruled. The defense did not call any witnesses. The jury found

Wood guilty of burglary, and he was sentenced as described above.

         {¶ 4}        Wood raises one assignment of error on appeal, which states:

         APPELLANT’S CONVICTION AND SENTENCING IS AGAINST THE

         MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 5}        Wood claims that his conviction was against the manifest weight of the

evidence because none of the State’s witnesses “could identify [him] as being the person

they saw” near the scene of the burglary. The State responds that this argument – that the

State failed to identify him as the person who committed the burglary – actually challenges

the sufficiency of the evidence, rather than its weight, and that the argument is without merit.

         {¶ 6}        An argument based on the sufficiency of the evidence challenges whether

the State presented adequate evidence on each element of the offense to allow the case to go



             1
             Wood’s brief erroneously states that the sentence for the burglary was ninety days in jail and five years of community
   control. Although a jail sentence was imposed at the same hearing, it related to a probation violation in Case No. 2008CR3991.
             2
              Wood’s brief alleges that Wood was indicted on an additional count, “Criminal Tools,” which was later dismissed.
                                                                                                    3

to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1999). “An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶ 7}          “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.”                      State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest

weight of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

 Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983); State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44.

         {¶ 8}          Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). However, we may determine which of several competing inferences suggested

by the evidence should be preferred. Id.


   The record reflects neither an indictment for nor a dismissal of a count of criminal tools.
                                                                                             4

       {¶ 9}     The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 10}    The parties did not dispute that the house of Donald Barnes on Claybeck

Drive was burglarized on the afternoon of February 4, 2011. At trial, the State presented

testimony from several neighbors.

       {¶ 11}    Linda Roberts testified that, when she came home from work around 2:00

p.m., she saw a full-sized van in front of her driveway with two occupants; one was a large,

African-American man and the other was a woman. The man walked away from the

passenger side of the van with a shovel, then rang Barnes’s doorbell. Roberts testified that

Wood was the man she had seen that day.

       {¶ 12}    Dan Haliburnt and his wife, Victoria Haliburnt, also lived on Claybeck.

Mr. Haliburnt testified that, on the afternoon of February 4, 2011, he saw a full-sized, blue

and silver Econoline van parked near his house. A large African-American man got out of

the van wearing a dark burgundy hoodie sweatshirt and carrying a snow shovel; the man

walked toward Barnes’s house. Mr. Haliburnt also saw a woman inside the van; she never

left the van, but she did switch from the front passenger’s seat to the driver’s seat after the

man exited the van. The woman left in the van after fifteen to twenty minutes. A few

minutes later, Mrs. Hailburnt arrived home and stated to her husband that she thought she

“saw someone breaking into [Barnes’s] house.” Mr. Haliburnt then saw that the Econoline

van was parked in Barnes’s driveway with the back doors open.
                                                                                               5

        {¶ 13}   Mrs. Haliburnt testified that she saw a big van in Barnes’s driveway when

she came home from picking up her grandchildren from school on the afternoon of February

4, 2011. She also saw a large man in a maroon hoodie with his back to the street holding a

large, rectangular, heavy object that reflected light; the man appeared to be struggling a little

to carry the object. Mrs. Hailburnt wrote down the license plate of the van and saw the man

put the rectangular object inside the van before driving away. She did not see the man’s

face.

        {¶ 14} Huber Heights Police Officer Bryan Doyle testified that, when he responded

to a call of a suspected burglary on Claybeck Drive on February 4, 2011, he saw that the

back door of Barnes’s house was standing open. He also observed distinctive footprints

with a circular pattern in the treads in the snow on the front sidewalk and leading around the

corner of the house to the rear. Barnes and the officers ascertained that a flat-screen

television was missing from a bedroom of the house.

        {¶ 15}   Detective Mike Noll of the Huber Heights police department responded to

Claybeck Drive on the afternoon of February 4, on a call of a suspected burglary. He

testified that there was some confusion about the address at which the burglary had allegedly

occurred, because the license plate that had been given to the officers was registered to a

woman who lived at an address on Claybeck. Detective Noll first responded to the house of

the suspect vehicle (the van). There, he made contact with the owner of the van, who stated

that her daughter, Brianna Seers, was out in the van and had been “living on and off” with

someone on Harshmanville Road “south of Kittredge, south of Powell.” A young man at

the home, who stated that he was Seers’s brother, told Noll that his sister (Seers) was out
                                                                                          6

with Donald Wood, who was “a black male.” The young man called Seers and told her that

the police were at their mother’s house, but she hung up on him; police officers also talked

with Seers by phone while they were at her mother’s house, but they were unsuccessful in

getting her to come there.    Noll concluded that the “vehicle license plate, the vehicle

description, the description of the two people seen, everything matched.”

       {¶ 16}      Detective Noll testified that he was familiar with the house on

Harshmanville Road described by Seers’s mother. When Seers refused to come to her

mother’s house, Noll proceeded to the house on Harshmanville, made contact with the

owner of that house, and waited for the van. He observed shoeprints matching those at

Barnes’s house in the snow outside the Harshmanville house.

       {¶ 17}    A van matching the description of the van seen on Claybeck and with the

reported license plate number arrived at the Harshmanville house about one hour after

Detective Noll’s contact with Seers’s mother. Seers, Wood, and another man who lived at

the Harshmanville house were inside the vehicle. Wood and Seers were arrested. Noll

testified that the officers conducted an inventory of the van; inside, they found two snow

shovels, a large flat-screen television, garden gloves, and clothing that matched the

description of what the burglar had been wearing on Claybeck. Noll observed that Seers

was wearing shoes with a circular tread, but they were not the same size as the prints at

Barnes’s house. Wood was wearing shoes that were “bone dry” and looked “like they’d

come out of a closet or out of a box.” Noll found the condition of Wood’s shoes “unusual,”

given the snow on the ground outside.        The television in the van was not Barnes’s

television.
                                                                                              7

       {¶ 18}    Wood was interviewed by Detective Gephardt of the Huber Heights police

department, and a video showing portions of this interview was played for the jury by

agreement of the parties. In the video, Wood stated that he had been going door to door

offering to shovel driveways on Claybeck earlier that day, but he denied taking a television.

He stated, “it’s all a misunderstanding.”

       {¶ 19}    The State’s evidence included eyewitness identification of Wood and of

Seers’s van, a neighbor’s testimony that the van was parked in Barnes’s driveway around the

time of the burglary and that a large, reflective rectangular object was loaded into the back of

the van, and a detective’s testimony linking the van identified by the neighbors to Wood’s

girlfriend, who was in possession of the van at the time of the offense. The State’s evidence

further established that Wood was found in possession of clothing that matched the

description of the suspected burglar, along with a snow shovel, gloves, and a large television

(albeit not Barnes’s television). Although much of this evidence was circumstantial, a jury

may view circumstantial evidence as having the same probative value as direct evidence.

State v. Baird, 8th Dist. Cuyahoga No. 96352, 2011-Ohio-6268, ¶ 23, citing Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. This evidence was sufficient to

support the jury’s verdict, and the verdict was not against the manifest weight of the

evidence.

       {¶ 20} Wood’s assignment of error is overruled.

       {¶ 21}    The judgment of the trial court will be affirmed.

                                            ..........

HALL, J. and FISCHER, J., concur.
                                                                                           8

(Hon. Patrick F. Fischer, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).



Copies mailed to:

Michele D. Phipps
Byron K. Shaw
Hon. Frances E. McGee
