[Cite as State v. Pierce, 2014-Ohio-5258.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                        C.A. No.      27204

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
LAMAR A. PIERCE                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 11 11 3005(C)

                                  DECISION AND JOURNAL ENTRY

Dated: November 26, 2014



        HENSAL, Judge.

        {¶1}     Lamar Pierce appeals his conviction for burglary in the Summit County Court of

Common Pleas. For the following reasons, this Court affirms.

                                                I.

        {¶2}     On October 25, 2011, a homeowner called the Bath police department to report

that there were men trying to get into her house. Although the men left when they saw the

homeowner through a window, she provided the police with a description of their vehicle.

Officers located the vehicle shortly thereafter and a chase ensued, which ended when the vehicle

crashed into a ditch. The Grand Jury indicted Mr. Pierce, the driver of the vehicle, for two

counts of burglary, two counts of failure to comply with the order or signal of a police officer,

and one count of driving under suspension. At trial, Mr. Pierce’s accomplices, Michael Davis

and Antonio Jones, testified against him. The jury found him guilty of one burglary count, the

failure to comply counts, and the driving under suspension count, and the trial court sentenced
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him to a total of eight years imprisonment. Mr. Pierce has appealed, arguing that his conviction

for burglary is against the manifest weight of the evidence.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE JURY CLEARLY LOST ITS WAY WHEN IT FOUND THE APPELLANT
       GUILTY OF BURGLARY WHERE THE EVIDENCE WAS NOT CREDIBLE OR
       RELIABLE AND CONSISTED OF SNITCH TESTIMONY.

       {¶3}    Mr. Pierce argues that his burglary conviction is against the manifest weight of

the evidence. If a defendant asserts that a conviction is against the manifest weight of the

evidence:

       [A]n 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 and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its

power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.

State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785, ¶ 32, citing Otten at 340.

       {¶4}    The jury found Mr. Pierce guilty of burglary under Revised Code Section

2911.12(A)(1). That section provides:

       No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure
       or in a separately secured or separately occupied portion of an occupied structure, when
       another person other than an accomplice of the offender is present, with purpose to
       commit in the structure or in the separately secured or separately occupied portion of the
       structure any criminal offense[.]

R.C. 2911.12(A)(1).
                                                 3


       {¶5}    According to Mr. Pierce, his burglary conviction is against the manifest weight of

the evidence because there was no physical evidence to establish that he burglarized the house

and the testimony of Mr. Davis and Mr. Jones cannot be believed. He notes that Mr. Davis and

Mr. Jones both admitted that they received favorable treatment from the State in exchange for

their testimony. He also notes that, because the homeowner did not testify, her observations

were admitted only second-hand through law enforcement officers. He argues that the evidence

supports, at best, a conviction for trespassing or attempted burglary.

       {¶6}    Mr. Davis and Mr. Jones testified that they drove with Mr. Pierce from Cleveland

to Bath in order to commit a burglary. Mr. Davis testified that they wanted to target a house

where nobody was home, so when they got to the victim’s house, Mr. Pierce knocked on the

door. When no one answered, he and Mr. Pierce went around to the back of the house, looking

for a way in. At the back of the house was an enclosed patio. According to Mr. Davis, Mr.

Pierce entered the patio while he stayed on the staircase. When they spotted the homeowner

looking at them through a back window, however, they ran back to the vehicle.

       {¶7}    Mr. Jones testified that, when they arrived at the house, Mr. Pierce and Mr. Davis

got out of the vehicle while he remained inside. He corroborated that Mr. Pierce knocked on the

front door then headed to the backyard. Mr. Jones testified that, 30 seconds after Mr. Pierce and

Mr. Davis disappeared behind the house, they came rushing back to the vehicle. Both Mr. Davis

and Mr. Jones admitted that the State reduced its charges against them after they agreed to testify

against Mr. Pierce.

       {¶8}    Officer Scott Borton testified that, when he arrived at the scene, the homeowner

was still stressed and a little scared. She told him that, although she heard the men at her front

door, she did not answer it because she was in her pajamas. Shortly thereafter, she heard
                                                4


someone pulling on the rear doors of the house, so she went to look out a back window and saw

a man coming from her enclosed porch. When the men noticed her, they ran back to their

vehicle.

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

evidence, this Court has recognized that issues of credibility are primarily reserved for the trier

of fact. State v. Carr, 9th Dist. Summit No. 26661, 2014-Ohio-806, ¶ 42. “This Court will not

overturn the trial court’s verdict on a manifest weight of the evidence challenge only because the

trier of fact chose to believe certain witness[es]’ testimony over the testimony of others.” State

v. Hill, 9th Dist. Summit No. 26519, 2013–Ohio–4022, ¶ 15. The fact that an accomplice of the

defendant has received leniency in exchange for his testimony does not, necessarily, make his

testimony incredible. See State v. Abel, 9th Dist. Lorain No. 08CA009506, 2009-Ohio-2516, ¶

34; State v. Figueroa, 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 11.

       {¶10} Mr. Pierce argues that Mr. Davis’s and Mr. Jones’s testimony cannot be believed.

The trial court warned the jury that their testimony “should be viewed with grave suspicion and

weighed with great caution,” See R.C. 2923.03(D). We presume that it followed the court’s

instruction. See State v. Garner, 74 Ohio St.3d 49, 59 (1995). It, nevertheless, found Mr. Pierce

guilty of the offenses. Upon careful review of the record, we conclude that this is not the

exceptional case where the jury lost its way when it found Mr. Pierce guilty of burglary. Mr.

Pierce’s assignment of error is overruled.

                                               III.

       {¶11} Mr. Pierce’s burglary conviction is not against the manifest weight of the

evidence. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                 5




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

PATRICIA J. SMITH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
