[Cite as State v. Gilliam, 2016-Ohio-2950.]


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

STATE OF OHIO,                                   :              Case Nos. 15CA19
                                                                          15CA20
        Plaintiff-Appellee,                      :

v.                                               :              DECISION AND
                                                                JUDGMENT ENTRY
CHARLES R. GILLIAM, II                           :

        Defendant-Appellant.                     :              RELEASED 05/09/2016


                                              APPEARANCES:

Jesse A. Atkins, Atkins And Atkins, Attorneys At Law, LLC, Circleville, Ohio, for appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather M.J. Armstrong,
Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellee.


Hoover, J.
        {¶1}     Defendant-appellant, Charles R. Gilliam, II (“Gilliam”), appeals the judgments of

the Pickaway County Common Pleas Court, finding him guilty of one count of intimidating a

witness, a third degree felony; and two counts of theft, one being a fifth degree felony, and one

being a first degree misdemeanor. Gilliam was sentenced to 18 months in prison for the

intimidation offense and to community control for the theft offenses.

        {¶2}     In this consolidated appeal, Gilliam contends that the trial court erred by not

declaring a mistrial after it was disclosed at his jury trial that during the course of the State’s

investigation he had agreed to participate in a polygraph examination. However, because the trial

court immediately instructed the jury to disregard any mention of the polygraph test, it did not

abuse its discretion in denying Gilliam’s motion for a mistrial.
Pickaway App. Nos. 15CA19 and 15CA20                                                                   2


       {¶3}    Gilliam also contends that his theft convictions are inconsistent with his acquittal

on a burglary charge and must be set aside. Because inconsistency between several counts of a

multi-count indictment is not the type of inconsistency that warrants setting aside a jury’s

verdict, we disagree.

       {¶4}    Next, Gilliam contends that his theft convictions and intimidation of a witness

conviction are against the manifest weight of the evidence. However, the State presented an

abundance of evidence establishing Gilliam’s guilt; and even in the face of contradicting

evidence, we cannot say that the record indicates that the jury clearly lost its way in reaching its

conclusions. Accordingly, we reject this argument.

       {¶5}    Finally, Gilliam argues that his trial counsel rendered ineffective assistance of

counsel by failing to disclose a key defense exhibit to the State prior to trial thereby causing its

exclusion at trial. Because Gilliam has failed to demonstrate how the admittance of the trial

exhibit would have resulted in a different outcome, we disagree.

       {¶6}    Accordingly, we overrule all four of Gilliam’s assignments of error and affirm the

trial court’s judgments.


                                     I. Facts and Procedural History


       {¶7}    On December 5, 2014, in trial court case number 2014 CR 303, Gilliam was

indicted on charges of one count of burglary in violation of R.C. 2911.12(A)(1), a felony of the

second degree, and two counts of theft in violation of R.C 2913.02(A)(1), felonies of the fifth

degree. On April 10, 2015, he was separately indicted in trial court case number 2015 CR 136,

on a single count of intimidating a witness in violation of R.C. 2921.04(B)(2), a felony of the

third degree. Gilliam pleaded not guilty to all counts in both indictments; and the trial court

consolidated the indictments for the purpose of trial.
Pickaway App. Nos. 15CA19 and 15CA20                                                               3


       {¶8}    The matter proceeded to a two-day jury trial on May 14th and 15th, 2015. Several

witnesses testified during the State’s case-in-chief, and during Gilliam’s case-in-chief. It was

adduced at trial that between 4:00 a.m. and 4:30 a.m. on September 9, 2014, someone entered the

home of P.D. and G.G. while they slept and took numerous items of personal property including:

a laptop computer, a television, a Coach purse, two wallets, two cell phones, credit cards, $70.00

cash, and a Coach checkbook holder. Upon waking up and noticing the missing items, G.G.

called law enforcement authorities. As a result, a deputy from the Pickaway County Sheriff’s

Office was dispatched to the home and arrived around 5:45 a.m. The deputy testified that he

observed a set of footprints in the dew-covered yard and a puddle of liquid on the street near the

victims’ driveway. No signs of forced entry were observed; however, a back door of the home

was unlocked. The victims’ home is located in Orient, Ohio.

       {¶9}    P.D. testified that in the days following the burglary he discovered suspicious

activity on his checking account. He called the Pickaway County Sheriff’s Office and reported

that his debit card had been used at several locations. He was able to provide officers with

locations, times, and transaction amounts. Ultimately, it was determined that his card had been

used at Meijers, Sterling One Stop (a gas station), The Buckeye Store, Family Dollar, Walmart,

and Raising Canes restaurant.

       {¶10} Detective Rex Emrick of the Pickaway County Sheriff’s Office also testified at

trial. Emrick, the lead detective investigating the burglary, was able to obtain a receipt and video

surveillance from Sterling One Stop and Walmart, and a video from Meijers. Emrick testified

that after viewing the videos he determined that the individual using the card was Gilliam. The

videos from Sterling One Stop and Meijers were played for the jury and admitted as evidence.
Pickaway App. Nos. 15CA19 and 15CA20                                                              4


       {¶11} According to Emrick, he and Detective Rob Reeser interviewed Gilliam on

September 19, 2014. Gilliam was accompanied at the Sheriff’s Office by his mother, Lynn

Lambert, and his then girlfriend, Miriah Crissinger. A recording of the interview was played at

trial. A transcript of the interview also exists in the record. During the interview, Gilliam denied

any personal knowledge about the burglary; instead indicating that he had only heard about it

from his mother. Gilliam was also shown still shots from the store videos where P.D.’s debit card

was used. Gilliam then admitted to using a debit card; however, he claimed that he had received

the card from Tyler Stone and was told to use it. At the conclusion of the interview, Gilliam

indicated that Stone had “set [him] up” by giving him the card to use.

       {¶12} Detective Emrick also interviewed Crissinger on September 19, 2014. According

to Emrick, on that day, Crissinger denied having any knowledge about the burglary or knowing

of any possible involvement by Gilliam.

       {¶13} Based on the video surveillance and a tip from Mandie Clayton, Crissinger’s

mother, Emrick obtained a warrant to search Gilliam’s home. The search did not turn up

evidence of the burglary; however, Gilliam’s cell phone was seized based on information that

there were text messages in reference to the burglary on the phone. A subsequent search warrant

was then obtained to search the contents of the cell phone. Located within the phone were

photographs of the purse and wallet belonging to G.G.

       {¶14} During the course of the investigation, Emrick also interviewed Tyler Stone.

When Stone came for his interview he brought a flat screen television and indicated that Gilliam

had sold him the television. The television was subsequently identified as the television taken

from the victims’ home.
Pickaway App. Nos. 15CA19 and 15CA20                                                               5


         {¶15} Finally, Emrick testified that he was able to confirm that Gilliam had rented a

room from the Star City Inn in Grove City, Ohio, on the day the search warrant was executed at

his house. A receipt from the Star City Inn, bearing Gilliam’s name, was admitted as evidence at

trial.

         {¶16} Crissinger also testified at trial. Crissinger and Gilliam had ended their

relationship some time after the September 19th interview with Emrick; and Crissinger admitted

at trial that she lied during her September 19th interview. According to Crissinger, a short time

after the burglary, Gilliam told her that he walked into the home, grabbed as much as he

physically could, heard a dog bark, and then left the residence. Crissinger also stated that Gilliam

told her that he had taken purses, wallets, cell phones, a laptop, a television, and credit cards. On

the day of the incident, Crissinger claimed that she, Kaylie Schooley, and Stone accompanied

Gilliam to downtown Columbus so he could sell the cell phones. Crissinger also testified that

Gilliam sold some of the other stolen items, that the purses were disposed of at a hotel in Grove

City, Ohio, and that she witnessed Gilliam destroying the credit cards.

         {¶17} Schooley also testified during the State’s case-in-chief. Schooley indicated that

she and Gilliam were friends. According to Schooley, on September 9, 2014, she travelled to

Gilliam’s home with Stone and Crissinger. While she was outside of the home, she witnessed

Stone exit the Gilliam home with a television and also witnessed Stone place the television in the

vehicle. Schooley also testified that on that same day, she, Stone, Crissinger, and Gilliam all

drove to Columbus so Gilliam could sell two cell phones. Schooley denied knowing how Gilliam

had acquired the cell phones.

         {¶18} The State also presented Clayton’s testimony at trial. Clayton testified that

Gilliam had admitted to her that he was responsible for the burglary and that he was by himself
Pickaway App. Nos. 15CA19 and 15CA20                                                                  6


on the night of the incident. Clayton stated that Gilliam had texted her requesting that she help

him dispose of items from the burglary, specifically the purse and laptop. According to Clayton,

Gilliam indicated that the items should not be sold to anyone she cared about. Clayton described

her relationship with Gilliam as rocky, one in which they would often fight and then make-up.

       {¶19} Clayton also testified that on February 27, 2015, she, her stepfather, Donald

Wallen, and her mother stopped at a gas station in Harrisburg, Ohio, to purchase gas. As Clayton

exited the gas station store she heard someone yell “bitch”. She then turned and saw Gilliam,

who continued to yell at her, calling her a “snitch”. Clayton testified, specifically, that Gilliam

told her she was lucky “he didn’t have a female with him right then to kick [her] ass * * * for

being a snitch.” Clayton admitted at trial that she yelled back at Gilliam and got caught up in the

moment, but that she also felt threatened and afraid. She also testified that Gilliam knew she was

going to testify against him at trial when the confrontation occurred.

       {¶20} Wallen also testified at trial. He testified that he broke-up the confrontation

between Clayton and Gilliam at the gas station. According to Wallen, he heard Gilliam say to

Clayton “bring dad out here and I’ll kick his ass” and “I’ll get some bitch to kick your ass”.

       {¶21} In his case-in-chief, Gilliam presented the testimony of several witnesses

including Abid Hussain, an employee of the Harrisburg gas station. Hussain testified that he

witnessed the confrontation between Gilliam and Clayton. According to Hussain, Clayton

instigated the confrontation by screaming at Gilliam and Gilliam said nothing other than “leave

me alone”. Hussain testified that law enforcement never took a statement from him or otherwise

questioned him about the incident.

       {¶22} Gilliam also testified during his case-in-chief and denied any involvement in the

burglary and theft. According to Gilliam, Stone was his “pot dealer”, and Stone would often
Pickaway App. Nos. 15CA19 and 15CA20                                                              7


supply him with property to sell on his behalf. In exchange for selling the items of property,

Gilliam would be allowed to keep the profits over a set amount; and he received a reduction in

the price of marijuana. Gilliam testified that on the day of the incident Stone showed him two

cell phones and he agreed to sell the cell phones for Stone. He, Stone, Schooley, and Crissinger

then travelled to Columbus to sell the cell phones. He did not believe the cell phones were stolen.

After selling the phones, Gilliam testified that he returned to his home briefly, and then later met

with Stone at Stone’s residence. It was at Stone’s residence that Gilliam claimed to have first

seen the rest of the stolen property. According to Gilliam, it was at that time that Stone solicited

him to sell the rest of the property. Gilliam agreed to sell the property, took pictures of the

property with his cell phone, and listed the items for sale on Craig’s List.

       {¶23} Gilliam also testified that Stone gave him the debit card to use. Gilliam admitted

to using the card at Sterling One Stop, Meijers, Raising Canes restaurant, and Walmart. He

claimed that he used the card to purchase items for Stone, and in exchange, Stone allowed him to

keep a few of the items. He was also present when Stone used the card at Family Dollar but he

denied having used the card at The Buckeye Store. Gilliam claimed that he did not know the card

was stolen when he used it; and he thought the card belonged to Stone’s parents even though the

last name on the card differed from Stone’s last name. Gilliam also testified about renting a room

at the Star City Inn. According to Gilliam, he rented the room because he felt “caught off guard”,

and unsafe in his own home after the Sheriff’s Office arrived with the search warrant. He denied

bringing any of the stolen items to the hotel.

       {¶24} Gilliam also testified at trial that he never confessed to Clayton that he was

responsible for the burglary. He also denied threatening Clayton at the gas station. Instead,

Gilliam testified that he tried to ignore Clayton at the gas station but she confronted him and
Pickaway App. Nos. 15CA19 and 15CA20                                                               8


called him an “F—er”. He did admit to saying some things back, but denied he ever threatened

her. He specifically denied saying he was going to kick her ass or that he was going to find a

bitch to whip her ass. He also denied calling her a snitch or saying he was going to whip her

dad’s ass.

       {¶25} Finally, Gilliam testified that he was involved in a serious car accident on January

9, 2014, wherein he shattered his hip and pelvis, and was in a coma for 18 days. As a result of

the accident Gilliam walks with the aid of a brace. Gilliam testified that in September 2014, he

was still getting familiar with the brace, was in extreme pain, had trouble lifting objects, and

could not walk long distances.

       {¶26} Gilliam’s mother Lynn Lambert and stepfather Corky Lambert also testified

during the defense’s case-in-chief. Corky testified that the family owns two vehicles, and that

both vehicles were present at their home when he awoke at approximately 5:00 a.m. on

September 9, 2014. Lynn testified that Gilliam was present and drove her to work on the

morning of the burglary. Both claimed that Gilliam did not have access to any other vehicles.

       {¶27} At the conclusion of trial, the jury found Gilliam not guilty of burglary, but guilty

of two counts of theft, one a felony of the fifth degree, the other a misdemeanor of the first

degree. The jury also found Gilliam guilty of one count of intimidating a witness, a felony of the

third degree. The trial court sentenced Gilliam to 18 months in prison on the intimidating a

witness count, and to community control on the two counts of theft. The trial court further

ordered that the prison term be served consecutively with the community control sentence.

       {¶28} Shortly thereafter, the trial court journalized sentencing entries in each case.

Gilliam filed timely notices of appeal from both trial court cases. We consolidated the appeals.


                                        II. Assignments of Error
Pickaway App. Nos. 15CA19 and 15CA20                                                               9


         {¶29} Gilliam assigns the following errors for our review:


First Assignment of Error:

         The Appellant’s convictions for Theft and Intimidation of a Witness were against
         the manifest weight of the evidence.

Second Assignment of Error:

         Appellant’s convictions for Theft are the result of the erroneous presentation of
         offenses of similar import, as well as the failure to provide the jury the
         opportunity to convict for receiving stolen property, both of which resulted in an
         inconsistent and erroneous verdict and should be accordingly overturned.

Third Assignment of Error:

         Appellant’s representation during the trial phase of this matter was ineffective and
         appellant’s conviction should be reversed.

Fourth Assignment of Error:

         The disclosure of a request for polygraph examination was prejudicial error
         requiring a mistrial.



                                       III. Law and Analysis


         {¶30} For ease of analysis, we elect to address Gilliam’s assignments of error out of

order.


                              A. Mention of Polygraph Examination


         {¶31} In his fourth assignment of error, Gilliam contends that the trial court erred in

overruling his request for a mistrial. Specifically, Gilliam argues that a disclosure during the

State’s case-in-chief that investigators requested that Gilliam submit to a polygraph examination

was prejudicial error requiring a mistrial.
Pickaway App. Nos. 15CA19 and 15CA20                                                                 10


       {¶32} When the recording of Gilliam’s interview with law enforcement officers was

played for the jury, it was disclosed that the officers requested that Gilliam submit to a polygraph

examination; and Gilliam indicated he would be willing to do so. Upon the disclosure of this

information, the trial court immediately excused the jury from the courtroom for a brief recess.

Defense counsel then moved for a mistrial and argued that the mention of a request for polygraph

examination constituted prejudicial error that could not be cured by a jury instruction. The State,

on the other hand, argued that a curative instruction would be sufficient to cure the error. The

trial court expressed dissatisfaction with the State’s decision to play an un-redacted version of

the recording to the jury, but ultimately decided that a curative instruction would be an

appropriate resolution. Thus, the trial court overruled the motion for a mistrial and instructed the

jury that it was “to completely disregard and not give any consideration to the fact the defendant

was asked to take a polygraph.” The trial court also instructed the jury that the polygraph “has

nothing to do with this case, and you will disregard that and act as though you never heard that.”

       {¶33} Whether or not to grant a mistrial is within the sound discretion of the trial court,

and its decision will not be reversed absent an abuse of that discretion. State v. Koon, 4th Dist.

Hocking No. 15CA17, 2016-Ohio-416, ¶ 26. An abuse of discretion occurs when the trial court

makes a decision that is unreasonable, arbitrary, or unconscionable. Id. “In general a mistrial

should not be granted based on an error or irregularity unless an accused's substantial rights are

adversely affected.” Id. at ¶ 27.

       {¶34} Generally, “polygraph test results are admissible into evidence only when the

defense and prosecution agree to its admissibility.” State v. Landrum, 4th Dist. Highland No.

14CA12, 2014-Ohio-5714, ¶ 9, citing State v. Dutiel, 5th Dist. Perry No.2012–CA–11, 2012–

Ohio–5349, ¶ 20, and State v. Wine, 3d Dist. Auglaize No. 2–12–01, 2013–Ohio–2837, ¶ 23.
Pickaway App. Nos. 15CA19 and 15CA20                                                                 11


“Ohio law also precludes the admission of the willingness or unwillingness of a party to take a

polygraph examination.” State v. Graves, 1st Dist. Hamilton No. C-950022, 1995 WL 540115,

*3 (Sept. 13, 1995). “However, the mere mention of the phrase ‘polygraph examination’ by a

witness testifying on behalf of the state does not necessarily result in prejudice to the accused.”

Id. And the Supreme Court of Ohio, in a case where a detective made a spontaneous comment

that the defendant had taken a lie detector test and failed it, found there was no abuse of

discretion in not declaring a mistrial because the trial court promptly instructed the jury to

disregard the comment and erase it from their minds. State v. Holt, 17 Ohio St.2d 81, 83-84, 246

N.E.2d 365 (1969). The Court noted that: “In view of the court’s immediate action in this

respect, we do not feel justified in holding that the judge’s refusal to order a mistrial was

prejudicial error.” Id. at 84. Thus, “[i]mplicit in the holding in Holt, is that the court must clearly

instruct the jury to disregard the inadmissible comment.” State v. Storms, 4th Dist. Meigs No.

492, 1993 WL 49445, *2 (Feb. 19, 1993). Finally, jurors are presumed to follow curative

instructions. State v. Mockbee, 2013-Ohio-5504, 5 N.E.3d 50, ¶ 39 (4th Dist.).

       {¶35} In the case sub judice, the trial court promptly and clearly gave a curative

instruction to the jury to disregard any mention of the request for polygraph examination. We

also note that the reference at issue did not state the result of any polygraph examination that

Gilliam might have taken. Accordingly, the trial court’s decision to overrule the motion for a

mistrial and to rely on the curative instruction was not an abuse of discretion. Gilliam’s fourth

assignment of error is not well taken and is overruled.


                                      B. Inconsistent Verdicts


       {¶36} In his second assignment of error, Gilliam contends that the jury's verdicts

regarding the burglary and theft charges are inconsistent. Specifically, he asserts that the jury’s
Pickaway App. Nos. 15CA19 and 15CA20                                                                12


theft convictions contradict its burglary acquittal and argues that the jury was forced to render

inconsistent and erroneous verdicts because the State presented offenses of similar import to the

jury, and because the jury was not afforded the opportunity to convict on the lesser offense of

receiving stolen property.

       {¶37} First, we note that “ ‘[i]nconsistent verdicts on different counts of a multi-count

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

2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138, quoting State v. Hicks, 43 Ohio St.3d 72, 78, 538

N.E.2d 1030 (1989). “ ‘The several counts of an indictment containing more than one count are

not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses

to different counts, but only arises out of inconsistent responses to the same count.’ ” Id., quoting

State v. Adams, 53 Ohio St.2d 223, 374 N.E.2d 137 (1978), paragraph two of the syllabus.

“Thus, a verdict will not be set aside merely because the findings necessary to support the

conviction are inconsistent with the findings necessary to acquit the defendant of another

charge.” State v. Reine, 4th Dist. Scioto No. 06CA3102, 2007-Ohio-7221, ¶ 68, citing Browning

v. State, 120 Ohio St. 62, 71, 165 N.E. 566 (1929). “[T]he sanctity of the jury verdict should be

preserved and could not be upset by speculation or inquiry into such matters to resolve the

inconsistency.” State v. Lovejoy, 79 Ohio St.3d 440, 444, 683 N.E.2d 1112 (1997).

       {¶38} The cases are clear that consistency between two verdicts in a multi-count

indictment is not necessary. Thus, even if such an inconsistency exists in the case sub judice,

such inconsistency does not mandate a reversal of Gilliam’s conviction.

       {¶39} Furthermore, Gilliam’s contention that the jury was forced to render inconsistent

verdicts by his being indicted and tried for allied offenses of similar import is also misplaced.

Even if we were to assume that the theft and burglary counts in this case were allied offenses of
Pickaway App. Nos. 15CA19 and 15CA20                                                                13


similar import, we note “[a] defendant may be indicted and tried for allied offenses of similar

import, but may be sentenced on only one of the allied offenses.” State v. Whitfield, 124 Ohio

St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 17. In other words, “a defendant may be found guilty

of allied offenses but not sentenced on them.” Id. “R.C. 2941.25(A)’s mandate that a defendant

may be ‘convicted’ of only one allied offense is a protection against multiple sentences rather

than multiple convictions.” Id. at ¶ 18. “Nothing in the plain language of the statute or in its

legislative history suggests that the General Assembly intended to interfere with a determination

by a jury or judge that a defendant is guilty of allied offenses. * * * [B]y enacting R.C.

2941.25(A), the General Assembly condemned multiple sentences for allied offenses, not the

determinations that the defendant was guilty of allied offenses.” Id. at ¶ 26. Thus, “[b]ecause

R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the

determination of the defendant’s guilt for committing allied offenses remains intact, both before

and after the merger of allied offenses for sentencing.” Id. at ¶ 27 and paragraph three of the

syllabus.

       {¶40} As the Supreme Court of Ohio makes abundantly clear in Whitfield, the State may

indict and try a defendant for allied offenses of similar import. Thus, Gilliam’s contention that

the jury should not have been given the opportunity to deliberate on both the burglary and theft

counts because they are allied offenses of similar import is misplaced. Moreover, we fail to

comprehend how the State’s decision to try Gilliam on both offenses forced the jury to render

inconsistent verdicts.

       {¶41} Finally, we disagree with Gilliam’s contention that the jury should have been

given the opportunity to convict him of receiving stolen property, rather than theft, and that the

failure to provide such opportunity forced the jury to render inconsistent verdicts. First, the State
Pickaway App. Nos. 15CA19 and 15CA20                                                                 14


“ ‘has great discretion in deciding which charges should be filed and may decide, for a myriad of

reasons, not to prosecute on certain charges notwithstanding that sufficient evidence exists to

support a conviction.’ ” State v. Conklin, 12th Dist. Butler No. CA94-03-064, 1995 WL 128388,

*3 (Mar. 27, 1995), quoting State ex rel. Tipton v. Schisler, 4th Dist. Scioto No. 90CA1926,

1991 WL 192733, *3 (Sept. 24, 1991). Moreover, “[t]he mere fact that appellant’s conduct

violates more than one statute does not force the state to prosecute him under the lesser statute.”

State v. Cooper, 66 Ohio App.3d 551, 553, 585 N.E.2d 868 (4th Dist.1990); see also State v.

Spearman, 6th Dist. Lucas No. L-01-1373, 2004-Ohio-1641, ¶ 37, and State v. Jackson, 10th

Dist. Franklin No. 96APA04-504, 1996 WL 684135, *4 (Nov. 26, 1996). More importantly,

even if we were to assume, as Gilliam argues, that the failure to present the offense of receiving

stolen property to the jury led to inconsistent verdicts, such a result does not constitute reversible

error. As discussed above, inconsistency between verdicts does not mandate a reversal of

Gilliam’s conviction.

         {¶42} For all of the foregoing reasons, we overrule Gilliam’s second assignment of

error.


                                   C. Manifest Weight of the Evidence


         {¶43} In his first assignment of error, Gilliam contends that his convictions for theft and

intimidation of a witness are against the manifest weight of the evidence. Gilliam argues that the

evidence adduced at trial does not support the theft convictions because it does not demonstrate

that he knowingly obtained or exerted control over the victims’ property without their consent, or

that he purposefully acted to deprive the victims of their property. This argument is consistent

with Gilliam’s theory that he should have been charged with receiving stolen property rather than

theft. In regards to his conviction for intimidation of a witness, Gilliam argues that the greater
Pickaway App. Nos. 15CA19 and 15CA20                                                                  15


weight of the evidence demonstrates that Clayton was the instigator of the confrontation, and that

he did not threaten her during the confrontation. In support of this argument, Gilliam cites the

testimony of Hussain, the gas station employee. He also argues that he had “no real motive to

threaten or intimidate anyone in this matter for a crime he did not commit.”

        {¶44} In determining whether a criminal conviction is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6254, 960 N.E.2d 955, ¶

119. “Although a court of appeals may determine that a judgment of a trial court is sustained by

sufficient evidence, that court may nevertheless conclude that the judgment is against the weight

of the evidence.” Thompkins at 387. But the weight and credibility of evidence are to be

determined by the trier of fact. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d

818, ¶ 132. “A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony

of any witness who appears before it.” State v. West, 4th Dist. Scioto No. 12CA3507, 2014–

Ohio–1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues

because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice

inflections, and to use these observations to weigh their credibility. Id.

        {¶45} The jury found Gilliam guilty of two counts of theft and a single count of

intimidating a witness. Theft is defined as: “[n]o person, with purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or services *

* * [w]ithout the consent of the owner or the person authorized to give consent”. R.C.
Pickaway App. Nos. 15CA19 and 15CA20                                                              16


2913.02(A)(1). In defining intimidation of a witness, R.C. 2921.04(B)(2) states: “[n]o person,

knowingly and by force or by unlawful threat of harm to any person or property or by unlawful

threat to commit any offense or calumny against any person, shall attempt to influence,

intimidate, or hinder * * * [a] witness to a criminal or delinquent act by reason of the person

being a witness to that act”.

       {¶46} Here, the State’s evidence presented at trial, which included testimony from law

enforcement officers, the victims, and associates of Gilliam, supported the jury’s conclusion that

Gilliam knowingly exerted control over the victims’ property without their consent and with

purpose to deprive them of their property. For instance, Clayton testified at trial that Gilliam had

told her that he had stolen items in Orient, Ohio. Further, Clayton testified that Gilliam had asked

for her help in selling the stolen purse and laptop belonging to the victims. Crissinger, Gilliam’s

ex-girlfriend, provided more details about Gilliam’s involvement. Specifically, Crissinger

testified that Gilliam had told her that he had taken purses, wallets, cell phones, a laptop, a

television, and credit cards from the victims’ home. Crissinger also claimed to have seen Gilliam

destroy credit cards and dispose of a purse at a hotel in Grove City, Ohio. Moreover, both

Crissinger and Schooley testified that Gilliam possessed and sold two cell phones on the same

day that the victims reported the theft of two cell phones from their home. Finally, video and still

shots from various stores was presented at trial that showed Gilliam using the debit card of one

of the victims. The State also presented photographs of the stolen purse and wallet taken from

Gilliam’s cell phone shortly after the items were stolen.

       {¶47} Gilliam testified at trial that he did not steal the items; instead, he only agreed to

sell the items for Stone. However, the jury was free to believe all, part, or none of Gilliam’s

testimony. West at ¶ 23; see also State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-
Pickaway App. Nos. 15CA19 and 15CA20                                                                     17


2996, ¶ 29. Moreover, when conflicting evidence is presented at trial, a conviction is not against

the manifest weight of the evidence simply because the jury believed the testimony presented by

the State. State v. Tyson, 4th Dist. Ross No. 12CA3343, 2013–Ohio–3540, ¶ 21.

        {¶48} Likewise, while conflicting testimony was presented regarding the intimidation of

a witness charge, we reiterate that the jury was in the best position to judge and weigh the

credibility of the witnesses. Furthermore, Gilliam’s argument that he had no motive to threaten

or intimidate Clayton because he was innocent of the burglary charge is misplaced. At the time

of the threats, Gilliam did not know that he would be acquitted of the burglary charge.

        {¶49} Based on the evidence before it, the jury neither clearly lost its way nor created a

manifest miscarriage of justice in finding Gilliam guilty of the two counts of theft and the

intimidation of a witness count. Accordingly, we overrule Gilliam’s first assignment of error.


                                          D. Assistance of Counsel


        {¶50} Finally, in his third assignment of error, Gilliam alleges that he received

ineffective assistance of counsel. Specifically, Gilliam contends that he was prohibited from

introducing a defense exhibit containing his phone records from the morning of the burglary

because his trial counsel failed to disclose the existence of the exhibit to the State prior to trial.

Gilliam claims that the exhibit “might very well have led to a different outcome in this case”

because the phone records “might have provided insight into [his] whereabouts, mental state, and

other potential suspects in this case.”

        {¶51} Criminal defendants have a right to counsel, including a right to the effective

assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d

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

establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)
Pickaway App. Nos. 15CA19 and 15CA20                                                               18


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

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

2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State

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

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

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

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

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

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

2008-Ohio-968, ¶ 14. In Ohio, there is a presumption that a properly licensed attorney is

competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

       {¶52} Here, even if we were to assume that counsel’s performance was deficient,

Gilliam still cannot establish that his counsel’s performance resulted in prejudice – i.e. the result

of the proceedings would have been different. At trial, even though the trial court did not allow

the phone records to be displayed or admitted as an exhibit, it did allow Gilliam’s mother to

testify about the phone records. Specifically, Gilliam’s mother testified that she viewed her son’s

phone records from the day of the incident and that there was “activity from 2:08 A.M. to about

9:00 something or 8:00”. She also testified that there were a number of calls that morning from a

number associated with Stone. Thus, the evidence that was contained within the phone records

was presented to the jury, albeit, in an alternative form. Moreover, we fail to see how this piece

of evidence would have altered the outcome of Gilliam’s trial even if presented in exhibit form.

The fact that Gilliam was active on his cell phone near the time of the burglary does not prove, as

Gilliam would like this Court to believe, that he could not have committed the offenses. If
Pickaway App. Nos. 15CA19 and 15CA20                                                            19


anything, the evidence is inculpatory and proves that Gilliam was awake during the time the

offenses were committed. In short, there is no indication that the results of the proceeding would

have been different even if defense counsel had properly assured the admittance of the exhibit at

trial.

         {¶53} For the forgoing reasons, we overrule Gilliam’s third assignment of error.


                                         IV. Conclusion


         {¶54} Having overruled all of Gilliam’s assignments of error, we affirm the judgments

of the trial court.


                                                                     JUDGMENTS AFFIRMED.
Pickaway App. Nos. 15CA19 and 15CA20                                                                  20


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENTS ARE AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Pickaway County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.


                                                For the Court


                                                BY: ____________________________
                                                    Marie Hoover, Judge




                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
