[Cite as State v. Blankenship, 2017-Ohio-7267.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                          JUDGES:
STATE OF OHIO                                     :       Hon. W. Scott Gwin, P.J.
                                                  :       Hon. John W. Wise, J.
                         Plaintiff-Appellee       :       Hon. Earle E. Wise, J.
                                                  :
-vs-                                              :
                                                  :       Case No. 16 CAA 0024
JAMES BLANKENSHIP                                 :
                                                  :
                    Defendant-Appellant           :       OPINION




CHARACTER OF PROCEEDING:                              Criminal appeal from the Delaware County
                                                      Court of Common Pleas, Case No. 15CR-I-
                                                      070327

JUDGMENT:                                             Affirmed in part; Reversed and Remanded
                                                      in part




DATE OF JUDGMENT ENTRY:                               August 16, 2017




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

CAROL HAMILTON O’BRIEN                                TODD WORKMAN
DOUGLAS DUMOLT                                        Workman Law Office
Delaware County Prosecutor’s office                   P.O. Box 687
140 North Sandusky Street, 3rd Fl.                    Delaware, OH 43015
Delaware, OH 43015
Delaware County, Case No. 16 CAA 0024                                                   2

Gwin, P.J.

       {¶1}   Defendant-appellant James Blankenship [“Blankenship”] appeals his

conviction and sentence entered by the Delaware County Court of Common Pleas.

Plaintiff-appellee is the State of Ohio.

                                   Facts and Procedural History

       {¶2}   Beginning in January of 2015, law enforcement in the northern Central Ohio

area began receiving reports of break-ins in county animal shelters and humane societies.

The first break-in occurred on January 9, 2015 in Morrow County and the second occurred

on January 12, 2015 in Marion County. The third and fourth break-ins occurred on the

night on January 19, 2015 in Union and Logan Counties. The fifth break-in occurred on

February 1, 2015 in Knox County. The sixth break-in occurred on February 4, 2015 in

Ashland County. The seventh break-in occurred on February 10, 2015 in Delaware

County. The eighth and ninth break-ins occurred on February 13, 2015 in Hardin and

Seneca Counties. On February 15, 2015, the tenth, eleventh and twelfth break-ins

occurred in Medina, Wayne, and Huron Counties. On February 16, 2015, the thirteenth

and fourteenth break-ins occurred in Champaign and Madison Counties. On February

17, 2015, the fifteenth break-in occurred in Muskingum County. Finally, on February 18,

2015 the sixteenth break-in occurred in Hardin County.

       {¶3}   On February 19, 2015, Detective Viloria from the Ashland County Sheriff’s

office sent out a LEADS teletype directed to law enforcement agencies around Ohio

attempting to find out if humane societies or dog shelters in other jurisdictions were aware

of similar break-ins. Detective Marissa Gibson of the Morrow County Sheriff’s Office

contacted Detective Viloria to advise her that a similar break in had recently occurred in
Delaware County, Case No. 16 CAA 0024                                               3


Morrow County. Detective Gibson learned that sixteen counties had experienced similar

break-ins of their humane societies since January 3. Based upon the number of counties

affected within such a short time, a meeting was scheduled to discuss the cases and

share information.

      {¶4}      At that meeting, law enforcement from around Ohio shared video footage

and still images from a number of the establishments that employed video surveillance

security systems. From that footage and initial investigation, the police were able to

identify a suspect vehicle. Detective Brian Beach had received a license plate number

and a car make and model from Patrolman Taylor of the Kenton Police Department. (2

T. at 401). Detective Beach relayed that information to Detective Gibson. (2T. at 403).

Using that information, Detective Gibson began conducting surveillance of Blankenship’s

residence and discovered that the license plate they were looking for had been

transferred to a white Pontiac at his residence. The white Pontiac had been observed in

surveillance footage from a break-in that occurred in Huron County.

      {¶5}      After Detective Gibson developed Blankenship as a possible suspect, she

obtained his phone number from his probation officer who worked for Morrow County

Adult Court Services. She provided that phone number to Detective Beach of the Kenton

Police department who was responsible for obtaining cellular phone records which might

show the location of Blankenship’s phone at times near when the break-ins had been

occurring. Ultimately, these records showed Blankenship's phone present in the same

geographic area as a number of the humane societies around the time at which the break-

ins occurred.
Delaware County, Case No. 16 CAA 0024                                                  4


      {¶6}   Toni Beers and Corby Creech were also viewed as potential suspects at

that time because they lived with Blankenship, were dating each other, and because the

license plate that had been identified in this case was registered to Toni Beers. Corby

Creech was apprehended attempting to break into a car wash on February 28, 2015 by

the Bucyrus Police Department. At that time, he was found to be wearing a pair of boots

with similar tread pattern to what had been observed at a number of the humane society

break-ins; moreover, he had distinctive orange walkie-talkie on his person that had been

observed on video surveillance during the Knox County Animal Shelter break-in.

      {¶7}   When Corby Creech was taken into custody, various Detectives from

around the state interviewed him. Creech explained that he and Blankenship would travel

around Ohio and break into humane societies and animal shelters looking for money,

safes, or other items worth stealing. He initially denied involvement in many of the break-

ins but admitted involvement in others. He explained that neither he nor Blankenship

were working and broke into these shelters to buy drugs and to support themselves.

      {¶8}   On July 24, 2015, Blankenship was indicted on fourteen counts - Count

One, Engaging in a Pattern of Corrupt Activity R.C. 2923.32(A)(1); Count Two, Breaking

and Entering in violation of R.C. 2911.13(A); Count Three, Safecracking in violation of

R.C. 2911.31(A); Count Four, Breaking and Entering in violation of R.C. 2911.13(A);

Count Five, Breaking and Entering in violation of R.C. 2911.13(A); Count Six,

Safecracking in violation of R.C. 2911.31(A); Count Seven, Breaking and Entering in

violation of R.C. 2911.13(A); Count Eight, Breaking and Entering in violation of R.C.

2911.13(A); Count Nine, Breaking and Entering in violation of R.C. 2911.13(A); Count

Ten, Safecracking in violation of R.C. 2911.31(A); Count Eleven, Breaking and Entering
Delaware County, Case No. 16 CAA 0024                                                 5


in violation of R.C. 2911.13(A); Count Twelve, Breaking and Entering in violation of R.C.

2911.13(A); Count Thirteen, Breaking and Entering in violation of R.C. 2911.13(A); Count

Fourteen, Breaking and Entering in violation of R.C. 2911.13(A).

       {¶9}   The jury trial commenced on April 25, 2016. Prior to the start of trial, the

state dismissed Count Fourteen. At the conclusion of the state’s case, the court granted

Blankenship’s Criminal Rule 29 motion to dismiss Count Thirteen of the Indictment. The

jury later returned a verdict of guilty on all twelve remaining charges.

       {¶10} On May 2, 2016, Blankenship appeared before the court for purposes of

sentencing. Blankenship was ordered to serve a seven year prison sentence on Count

One; a 12 month prison sentence on Count Two; an 18 month prison sentence on Count

Three; an 18 month prison sentence on Count Four; a 12 month prison sentence on Count

Five; an 18 month prison sentence on Count Six; a 12 month prison sentence on Seven;

a 12 month prison sentence on Count Eight; a 12 month prison sentence on Count Nine;

an 18 month prison sentence on Count Ten; a 12 month prison sentence on Count

Eleven; and, a 12 month prison sentence on Count Twelve. Counts One, Two, and Three

were all ordered to be served consecutive to each other for an accumulated sentence of

nine and one-half years in prison. The remaining seven counts were all concurrent to

Counts One, Two, and Three.

       {¶11} On July 18, 2015, this Court granted Blankenship leave to file his delayed

appeal.

                                      Assignments of Error

       {¶12} Blankenship presents four assignments of error for our consideration,
Delaware County, Case No. 16 CAA 0024                                             6


      {¶13} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO RULES OF

CRIMINAL PROCEDURE RULE 29 WHEN THE STATE FAILED TO PROVIDE

SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT.

      {¶14} “II. THE DEFENDANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

      {¶15} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO RULES OF

CRIMINAL PROCEDURE RULE 29 WHEN THE STATE FAILED TO PROVE BEYOND

A REASONABLE DOUBT THAT THE CRIMINAL CONDUCT (OR ANY PART

THEREOF) WAS COMMITTED IN DELAWARE COUNTY.

      {¶16} “IV. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN

THE COURT FAILED TO PROPERLY INFORM HIM OF THE DETAILS OF POST-

RELEASE CONTROL AT THE TIME OF SENTENCING AND WHEN THE COURT

FAILED TO PROPERLY INCORPORATE THE TERMS OF POST-RELEASE CONTROL

INTO THE SENTENCING.”

                                           I & II.

      Introduction.

      {¶17} In his First, Second and Third Assignments of Error, Blankenship

challenges only his conviction on Count VII of the Indictment. Count VII of the

Indictment provided,

             Count Seven:
Delaware County, Case No. 16 CAA 0024                                                    7


              THE JURORS OF THE GRAND JURY of the State of Ohio, within

       and for the body of the County of Delaware, on their oaths, in the name and

       by the authority of the State of Ohio, do find and present that on or about

       the 10th day of February, 2015 in Delaware County, Ohio, or by some

       manner enumerated in Section 2901.12 of the Ohio Revised Code whereby

       proper venue is placed in Delaware County, Ohio, JAMES BLANKENSHIP

       AND CORBY CREECH, by force, stealth, or deception, did trespass in an

       unoccupied structure, with purpose to commit therein any theft offense, as

       defined in Section 2913.01 of the Revised Code, or any felony, this being

       Breaking And Entering in violation of Section 2911.13(A) of the Ohio

       Revised Code, a Fifth Degree Felony and against the peace and dignity of

       the State of Ohio.

       {¶18} In response to Blankenship’s request, the state provided the following

information in the Bill of Particulars filed February 4, 2016,

              Count 7: (Delaware County)

              On February 10, 2015, the defendant, in conjunction with Corby

       Creech, in a continuing course of criminal conduct, did, by force, stealth, or

       deception, trespass in an unoccupied structure, 4920 State Route 37 E,

       Delaware, OH 43015, with the purpose to commit a theft offense therein.

       Blankenship’s contentions.

       {¶19} In his First Assignment of Error, Blankenship alleges that the trial court erred

in not granting his Crim. R. 29 motion for acquittal on Count VII of the Indictment at the

conclusion of the state’s case. In determining whether a trial court erred in overruling an
Delaware County, Case No. 16 CAA 0024                                                    8


appellant's motion for judgment of acquittal, the reviewing court focuses on the sufficiency

of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965,

974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991).

       {¶20} In his Second Assignment of Error, Blankenship argues that his conviction

for Count VII of the Indictment is against the weight of the evidence.

       {¶21} Blankenship argues that there is no evidence that he “or any other individual

associated with Appellant (under the State’s argument of Engaging in Criminal

Activity)committed a Breaking and Entering in regards to Count Seven of the

Indictment(Allegedly occurring at the Delaware County Humane Society) there is

absolutely zero evidence of this.” [Appellant’s Brief at 11].

       Standard of Review.

       {¶22} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,

¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.

       {¶23} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of
Delaware County, Case No. 16 CAA 0024                                                       9


the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue, which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.”   (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law

Dictionary (6th Ed. 1990) at 1594.

       {¶24} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982).          However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

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

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

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

       the weight of the evidence, every reasonable intendment and every

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

       finding of facts.
Delaware County, Case No. 16 CAA 0024                                                        10


                                               ***

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

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

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

          judgment.”

          {¶25} Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192

(1978).

          {¶26} To be convicted of breaking and entering pursuant to R.C. 2911.13(A) the

trier of fact would have to find beyond a reasonable doubt that Blankenship by force,

stealth, or deception trespassed in an unoccupied structure, with purpose to commit

therein any theft offense, as defined in section 2913.01 of the Revised Code, or any

felony.

          {¶27} On February 10, 2015, Deputy Robert Curren responded to the Delaware

County Humane Society at approximately 1:16 a.m. A loud, audible alarm had been

tripped. He had been dispatched when the Vector alarm company called to report a

possible break-in at that location. Upon his arrival, he located a door that had pry marks

and evidence of forcible entry. Part of the dead bolt was lying on the ground and the door

was ajar. Deputy Curren walked through the business, took photographs of the damage,

and made contact with the key holder Misty Bay.

          {¶28} Ms. Bay testified that she was a manager at the Delaware County Humane

Society. After she received a call regarding a suspected break-in from Vector security,

she went to the location. She arrived approximately twenty-five minutes after the alarm.
Delaware County, Case No. 16 CAA 0024                                                   11


After Deputy Curren cleared the building, she walked through and discovered that the

east wing cat door had been broken. She discovered that some file cabinets and drawers

had been pulled out in the lobby, two of the dogs were not in their kennels and a set of

keys were not on the hook where they were customarily located.

       {¶29} Ms. Bay testified that it appeared someone had forced entry, searched the

building, and moved property. Ms. Bay testified that she ultimately found nothing to be

missing. Ms. Bay testified there were motion sensors inside the business. She was able

to determine that the suspects entered through the east wing door, then moved

throughout the shelter, and ultimately exited through the dog room door. She testified the

damage present on the doors was not present prior to the break-in. She was further able

to tell by the timing of the security codes that the suspects were only in the shelter for

perhaps five minutes. Finally, she testified no one had authority to enter the shelter on

the date in question and no one had permission to cause the damage.

       {¶30} A witness need not physically point out the defendant in the courtroom as

long as there is sufficient direct or circumstantial evidence proving that the defendant was

the perpetrator. See, State v. Jenks, 61 Ohio St.3d 259, 272–273, 574 N.E.2d 492 (1991);

United States v. Boyd, 447 Fed.Appx. 684, 690 (6th Cir. 2011) (collecting examples of

when “in-court identification is not required”).

       {¶31} Circumstantial evidence is defined as ‘testimony not based on actual

personal knowledge or observation of the facts in controversy, but of other facts from

which deductions are drawn, showing indirectly the facts sought to be proved.’” State v.

Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black’s Law Dictionary

221 (5th Ed.1979). “Circumstantial evidence and direct evidence inherently possess the
Delaware County, Case No. 16 CAA 0024                                                     12

same probative value.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph one of the syllabus.      “‘[C]ircumstantial evidence is sufficient to sustain a

conviction if that evidence would convince the average mind of the defendant’s guilt

beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005–Ohio–6046,

837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026

(1990).

       {¶32} “For other-acts evidence to be admissible to prove identity, the ‘other-acts

evidence must be related to and share common features with the crime in question.’”

State v. Massey, 10th Dist. No. 99AP–1355, 2000 WL 1742072 (Nov. 28, 2000), quoting

State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the syllabus.

Evidence of other acts is admissible to prove identity if there is “substantial proof that the

alleged other acts were committed by the defendant.” Lowe at 530, 634 N.E.2d 616. See

also State v. Parnell, 10th Dist. No. 11AP–257, 2011-Ohio-6564, 2011 WL 6647293, ¶

31. Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts is

permitted to show proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, of the absence of mistake or accident. State v. Kirkland, 140 Ohio St.3d 73,

2014–Ohio–1966.

       {¶33} In the case at bar, ample circumstantial evidence existed to allow the jury

to conclude that Blankenship and Creech were the individuals who gained access to the

Delaware County Humane Society on February 10, 2015.

       {¶34} Beginning on January 19, 2015, break-ins began to occur in animal shelters

and humane societies. By February 18, 2015, sixteen such establishments had been

broken into in sixteen different counties in the state. Some of the premises had video
Delaware County, Case No. 16 CAA 0024                                                   13


surveillance, which consistently showed two males with their faces covered inside the

buildings. In some pictures, a white car similar to Blankenship’s could be seen in the

vicinity. Either Blankenship’s or Creech’s cell phones were determined to be in the vicinity

at the time of approximately eight of the break-ins. Creech was in possession of an orange

walkie-talkie at the time of his arrest. Creech testified that they tried using the walkie-

talkies to communicate with the driver during the break-ins. (T. at 696). Surveillance

footage from the Knox County break-in showed a suspect with an orange walkie-talkie.

(1T. at 99).

       {¶35} Toni Beers testified that she was Creech’s girlfriend and the couple lived

with Blankenship during the time that the break-ins were occurring. Neither Beers,

Creech, nor Blankenship was working at the time. However, Blankenship and Creech

would pay the bills. Blankenship and Creech would leave the residence around 9:00 p.m.

and return around 3:00 a.m. on many days. In exchange for a guarantee of immunity

from prosecution by the state, Beers testified that on several days she went with them.

Blankenship and Creech would break in to humane society buildings. That was the only

type of business they broke into while she was present. She would drive them to various

humane societies in Blankenship’s white Grand Prix on some occasions, drop them off,

and pick them up after the commission of the offense. When they signaled her to pick

them up, they would often have money, medication, and pills.

       {¶36} Beers testified that they were living in Morrow County at the time of the

offense and hit pretty much all of the adjoining counties around Morrow County at some

point. While Ms. Beers was able to specifically recall driving Blankenship and Creech to

the Ashland County and Marion County animal shelters, she could not recall all of the
Delaware County, Case No. 16 CAA 0024                                                 14


others. Finally, she testified she went out with Creech and Blankenship approximately

five to seven times, but Creech and Blankenship went out "a lot" without her to break into

businesses.

      {¶37} Similarly, Creech testified that he was charged, pled guilty, and was

sentenced by Delaware County for his involvement in this case. He testified to breaking

into dog pounds and car washes during the relevant period. The following exchange took

place during Blankenship’s jury trial between the prosecutor and Creech,

      Q.      Let’s talk about your Delaware case here then if we can. What did

      you do that caused you to get charged with a number of offenses in that

      case?

      A.      Breaking into dog pounds and car washes.

      Q.      Okay. And were dog shelters and dog pounds and car washes the

      only places you broke into during that time?

      A.      Yes.

      Q.      Do you recall some of the counties that you broke into businesses

      in?

      A.      Hardin County, Morrow County, Marion County. I did Delaware

      County.

4T. at 684-685. Further, Creech testified,

              Q.     And what did you go to prison for?

              A.     I went to prison out of Morrow County for burglary and

      Delaware County breaking and entering.
Delaware County, Case No. 16 CAA 0024                                                  15


4T. at 683. Creech testified that after they had tried the break-in in Morrow County he

and Blankenship decided to keep going. (4T. at 687-688). They began to drive further

outward in search of dog shelters to break-in. Creech testified that Toni Beers would

accompany him and Blankenship to break-ins on occasion. Creech testified that he and

Blankenship broke into the Hardin County animal shelter and stole a dog during the

process because Blankenship wanted the animal. (4T. at 690). Creech plead guilty to

the break-in of the Delaware County Humane Society. (See, State’s Exhibit 20; 4T. at

701).

        {¶38} In the case at bar, the break-ins involved a unique type of establishment.

They further occurred over a short period.        Each offense involved a similar modus

operandi. Creech and Beers each admitted to committing a number of the break-ins and

were unsure as to others. Corroborating evidence as to the identity of the perpetrators

was presented in the form of cellular telephone records that pinpointed the location of

Blankenship and Creech near the location of several of the break-ins at or near the time

of the break-in. Identification of a vehicle matching the description of Blankenship’s car

at several of the sites was presented. Two humane societies in different counties were

broken into on January 19, 2015. Two more in different counties were broken into on the

same night on February 13, 2015. Three humane societies in different counties were

broken into on February 15, 2015. Two humane societies in two different counties were

broken into on February 16, 2015. The break-ins of humane society’s and animal shelters

appear to have stopped with the arrest of Creech and Blankenship. From this evidence,

the jury could find proof of motive, opportunity, intent, preparation, plan, knowledge, and

identity were the same or similar for all of the break-ins.
Delaware County, Case No. 16 CAA 0024                                                                16


        {¶39} Competent, credible evidence was presented when viewed in the light most

favorable to the prosecution, that provides sufficient circumstantial evidence that

Blankenship was a participant in the break-in of the Delaware County Humane Society

on February 10, 2015. We hold, therefore, that the state met its burden of production

regarding each element of the crime of breaking and entering and, accordingly, there was

sufficient evidence to support Blankenship’s conviction on Count VII of the Indictment.1

        {¶40} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

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

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d

517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th




        1  Appellant does not challenge his convictions on any other count upon which the jury returned a
guilty verdict.
Delaware County, Case No. 16 CAA 0024                                                    17

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227

N.E.2d 212(1967).

       {¶41} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

       {¶42} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

       {¶43} Although Creech testified at trial that he did not believe he had committed

the break-in of the Delaware County Humane Society, the jury as the trier of fact was free

to accept or reject any and all of the evidence offered by the parties and assess the

witness’s credibility. The jury was also aware that Creech had pled guilty to the break-in

of the Delaware County Humane Society.            "While the jury may take note of the
Delaware County, Case No. 16 CAA 0024                                                  18


inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23,

2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714

(May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-

Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.

Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79

Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have

been circumstantial, we note that circumstantial evidence has the same probative value

as direct evidence. State v. Jenks, supra.

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

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor

created a miscarriage of justice in convicting Blankenship of the charge.

      {¶45} Based upon the foregoing and the entire record in this matter, we find

Blankenship’s conviction on Count VII of the Indictment was not against the sufficiency

or the manifest weight of the evidence. To the contrary, the jury appears to have fairly

and impartially decided the matters before them. The jury as a trier of fact can reach

different conclusions concerning the credibility of the testimony of the state’s witnesses

and Blankenship and his witnesses. This court will not disturb the jury's finding so long

as competent evidence was present to support it. State v. Walker, 55 Ohio St.2d 208,
Delaware County, Case No. 16 CAA 0024                                                    19


378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was

convinced of Blankenship’s guilt.

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

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

crime beyond a reasonable doubt.

       {¶47} Blankenship’s First and Second Assignments of Error are overruled.

                                                 III.

       {¶48} Because there is no evidence to connect Blankenship to the Delaware

County break-in, Blankenship posits in his Third Assignment of Error that it was improper

to conduct the jury trial on his Indictment in Delaware County.

       {¶49} Section 10 of Article I of the Ohio Constitution requires that: “* * * [i]n any

trial, in any court, the party accused shall be allowed * * * a speedy public trial by an

impartial jury of the county in which the offense is alleged to have been committed * * *.”

Crim.R. 18(A) states that, “(t)he venue of a criminal case shall be as provided by law.”

       {¶50} “Venue is not a material element of any offense charged. The elements of

the offense charged and the venue of the matter are separate and distinct. State v.

Loucks (1971), 28 Ohio App.2d 77, 274 N.E.2d 773, and Carbo v. United States (C.A.9,

1963), 314 F.2d 718. Yet, in all criminal prosecutions, venue is a fact that must be proved

at trial unless waived. State v. Nevius (1947), 147 Ohio St. 263, 71 N.E.2d 258.” State

v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343, 1345(1981).

       {¶51} R.C. 2901.12 contains the statutory foundation for venue. The relevant

provisions of this section read, in pertinent part, as follows:
Delaware County, Case No. 16 CAA 0024                                                 20


            (A) The trial of a criminal case in this state shall be held in a court

     having jurisdiction of the subject matter, and in the territory of which the

     offense or any element of the offense was committed.

                                          ***

            (D) When the offense is conspiracy, attempt, or complicity cognizable

     under division (A) (2) of section 2901.11 of the Revised Code, the offender

     may be tried in any jurisdiction in which the conspiracy, attempt, complicity,

     or any of its elements occurred.

             (E) When the offense is conspiracy or attempt cognizable under

     division (A)(3) of section 2901.11 of the Revised Code, the offender may be

     tried in any jurisdiction in which the offense that was the object of the

     conspiracy or attempt, or any element of that offense, was intended to or

     could have taken place. When the offense is complicity cognizable under

     division (A) (3) of section 2901.11 of the Revised Code, the offender may

     be tried in any jurisdiction in which the principal offender may be tried.

                                          ***

            (G) When it appears beyond a reasonable doubt that an offense or

     any element of an offense was committed in any of two or more jurisdictions,

     but it cannot reasonably be determined in which jurisdiction the offense or

     element was committed, the offender may be tried in any of those

     jurisdictions.

            (H) When an offender, as part of a course of criminal conduct,

     commits offenses in different jurisdictions, the offender may be tried for all
Delaware County, Case No. 16 CAA 0024                                                    21


       of those offenses in any jurisdiction in which one of those offenses or any

       element of one of those offenses occurred* * *

       {¶52} As we have found in our disposition of Blankenship’s First and Second

Assignments of Error, sufficient, credible evidence supports Blankenship’s conviction on

Count VII of the Indictment. As Blankenship was convicted of breaking-in to the Delaware

County Humane Society, venue for purposes of Blankenship’s jury trial was proper.

       {¶53} Blankenship’s Third Assignment of Error is overruled.

                                                IV.

       {¶54} In his fourth assignment of error Blankenship asserts that the trial court

erred by failing to notify him at his sentencing hearing that his sentence included the

mandatory three-year term of post-release control and that the court failed to incorporate

that notice in its sentencing entry.

       {¶55} Blankenship was convicted of multiple felonies, the most serious of which

is Count I of the Indictment, Engaging in a Pattern of Corrupt Activity. That offense is a

second-degree felony. R.C. 2923.32(B)(1). R.C. 2967.28(B)(2) mandates a mandatory

three-year period of post-release control be imposed upon a conviction for a second-

degree felony.

       {¶56} In cases where, as here, an offender is subject to multiple periods of post-

release control, “the period of post-release control for all of the sentences shall be the

period of post-release control that expires last, as determined by the parole board or court.

Periods of post-release control shall be served concurrently and shall not be imposed

consecutively to each other.” R.C. 2967.28(F)(4)(c). Thus, in multiple-offense cases, the

sentencing court need only notify the defendant of the longest applicable period of post-
Delaware County, Case No. 16 CAA 0024                                                  22

release control. State v. Darks, 10th Dist. Franklin No. 12AP-578, 2013-Ohio-176, ¶11;

State v. Reed, 6th Dist. No. E–11–049, 2012–Ohio–5983, ¶ 12; State v. Buckner, 1st Dist.

No. C–100666, 2011–Ohio–4358, ¶ 18; State v. Ballou, 8th Dist. No. 95733, 2011–Ohio–

2925, ¶ 16, citing Durain v. Sheldon, 122 Ohio St.3d 582, 913 N.E.2d 442, 2009–Ohio-

4082, ¶ 1.

       {¶57} Blankenship was not informed at the sentencing hearing or in the court’s

judgment entry that he is subject to a mandatory three-year period of post release control.

       {¶58} Blankenship’s Fourth Assignment of Error is sustained.

       {¶59} For the foregoing reasons, Blankenship’s convictions and sentence are

affirmed. However, we vacate the post release control portion of Blankenship’s sentence

and remand the matter for a hearing limited to the proper imposition of post release

control.

By Gwin, P.J.,

Wise, John, J., and

Wise, Earle, J., concur
