[Cite as State v. Sutton, 2014-Ohio-1074.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100037



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                TIMOTHY SUTTON, JR.
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CR-10-543964

        BEFORE: McCormack, J., Keough, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Ave.
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Jeffrey S. Schnatter
Joseph J. Ricotta
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Timothy Sutton, Jr., appeals his conviction for

breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth degree, and

assigns five errors for our review. For the reasons that follow, we affirm the conviction.

                                    Procedural History

       {¶2} Initially, on November 17, 2010, Sutton was indicted for one count of

burglary, in violation of R.C. 2911.12(A)(2), with notice of a prior conviction and a

repeat violent offender specification, alleging that Sutton was convicted of burglary and

vandalism in a previous matter in 2006, and one count of vandalism, in violation of R.C.

2909.05(A). Sutton pleaded not guilty to the charges, and the matter proceeded to a jury

trial on January 19, 2011. At the close of the state’s case, the state dismissed the

vandalism charge. The jury subsequently found Sutton guilty of burglary, and the trial

court convicted him of the notice of prior conviction and the repeat violent offender

specification. The court sentenced Sutton to eight years for the burglary and three years

for the repeat violent offender specification.

       {¶3} Sutton appealed his conviction to this court in State v. Sutton, 8th Dist.

Cuyahoga No. 96408, 2011-Ohio-6270. On appeal, we reversed Sutton’s conviction and

remanded for a new trial, finding that the trial court’s allowance of “other acts” evidence

was prejudicial and a violation of Evid.R. 404(B). Id.
       {¶4} On May 20, 2013, Sutton was tried for a second time for burglary, in

violation of R.C. 2911.12(A)(2), the vandalism count having been dismissed by the state

in the first trial. He waived his right to a jury trial, and the matter was tried to the bench.

 At trial, defense counsel moved for dismissal under Crim.R. 29, which the court

overruled. The defense subsequently requested the court consider the lesser included

offenses of breaking and entering, in violation of R.C. 2911.13, and criminal trespass, in

violation of R.C. 2911.21. The court then found Sutton guilty of the lesser included

offense of breaking and entering.

       {¶5} The court ordered a presentence investigation report and continued the

matter for sentencing. On May 22, 2013, the court sentenced Sutton to 12 months

incarceration, subject to a potential three-year period of postrelease control.

                                     Substantive Facts

       {¶6} On October 4, 2010, at around 5:00 p.m., Larry Philpotts, who resided at

3647 Martin Luther King Blvd., in Cleveland, Ohio, was watching television in the back

room of his house when he observed a thin black male break the window of the back door

at 3641 Martin Luther King Blvd. Philpotts testified that he saw the male stick his hand

in the broken window and unlock the door while standing on a five-gallon bucket in order

to reach inside. He stated that he then saw the male enter the residence.

       {¶7} While the male was inside, Philpotts called the Cleveland police and

reported that a man was breaking into his neighbor’s home and had entered through the

back door. Philpotts called the police a second time, approximately six minutes later,
and reported that the male was still inside the house. After placing the second call,

Philpotts went outside and observed the male coming out of the neighbor’s driveway.

He testified that he asked the male why he went in the house, to which the male

responded that “he was just looking around.” While he was unable to identify Sutton at

trial, Philpotts testified that the male he saw breaking into the house next door, the one

who also admitted to Philpotts that he was inside the home, is the same male the police

took into custody that day.

       {¶8} At approximately 5:00 p.m., on the date in question, Cleveland Police

Officer Jovan Larkin, along with her partner, Officer Thelemon Powell, responded to a

code one high priority call from dispatch concerning a male breaking into a vacant house

located at 3641 Martin Luther King Blvd. Officer Larkin testified that she and her

partner arrived at the house in less than ten minutes. Upon arriving, Officer Larkin

observed two males standing in front of the residence next to the house to which they

were responding.

       {¶9} Officer Larkin approached the two men, learned that Philpotts was the next

door neighbor, and inquired as to what was going on. Philpotts indicated that the man

with whom he was standing, later identified as Sutton, was the man who had broken into

3641 Martin Luther King Blvd.       Officer Larkin went to the rear of the home and

observed the broken window of the rear door, broken glass on the porch in front of the

door, and pieces of glass in the entranceway inside the home.         The officer further

investigated the view of the back door that Philpotts had when he observed the male
breaking the window, and determined that Philpotts had a clear, unobstructed view of the

back door from his back room.

       {¶10} Upon further investigation, the officer learned that the house in question was

listed for sale and the realtor was Pearlie Durrah. Her name and phone number were

listed on the sign. Officer Larkin attempted to contact Durrah to no avail. She included

Durrah’s name as the victim in the police report.

       {¶11} Officer Larkin testified that once Sutton was detained in the officer’s zone

car, Sutton indicated that he was interested in purchasing the property. The officer stated

that what Sutton told her was inconsistent with what she learned from Philpotts. Based

upon her investigation, the evidence on the scene, and her conversations with Philpotts

and Sutton, Officer Larkin made a decision to place Sutton under arrest. At trial, Officer

Larkin identified Sutton as the man she saw standing with Philpotts on the day in

question.

       {¶12} Pearlie Durrah, the real estate broker who had listed the property for sale,

testified that she received a phone call from Philpotts, who informed her that someone

had broken into the vacant property she had listed. She and her husband, Donald Durrah,

arrived on the scene within 15 minutes of receiving the phone call. Upon arriving, she

observed broken glass on the inside of the back door as well as glass on the porch floor

immediately outside the door.

       {¶13} Durrah testified that she and her husband would visit the home

approximately two times per week, at different times of the day. The last time she was
on the property was within one week of the incident on October 4. She stated that she

always inspected the property on each visit, and the last time she was on the property, she

did not recall seeing damage to any of the doors. She testified that some clothes, a piano,

an organ, and some lamps were in the house at the time. She did not believe the items,

with the exception of the piano and the organ, had any significant value. She did not

believe that the piano and the organ, the only items of value, could be lifted by a single

person. She stated that in order to open the back door without a key, one would need to

break the glass window.

        {¶14} Durrah testified that she was the only person authorized to show the

property in question. She further testified that she had no appointments to show the

property on October 4, was never contacted by Sutton for purposes of viewing the

property, and had never seen Sutton in relation to showing the home. She did not give

anyone permission to enter the home on October 4.

        {¶15} Donald Durrah testified that the security gate on the property was unlocked

when he arrived to inspect the home after the incident in question. He stated that the

security gate could be opened by sticking a hand through the gate and pulling the slide

bolt out. When he arrived, the rear door with the broken window was unlocked. It

would ordinarily have been locked. He observed broken glass on the floor inside the

door.

                                        Assignments of Error1


            For ease of discussion, we will discuss the assignments of error out of sequence.
        1
      I.       The trial court erred in denying appellant’s motion for acquittal when
               the state failed to present sufficient evidence to sustain a conviction.

      II.      Appellant’s conviction is against the manifest weight of the
               evidence.

      III.     The trial court erred in violation of the Sixth and Fourteenth
               Amendments to the United States Constitution, and Article I, Section
               10 of the Ohio Constitution which provide rights to confrontation
               and cross-examination, and Ohio [Evid.R.] 801 and 802, when it
               permitted state witnesses to testify with inadmissible hearsay
               statements.

      IV.      Appellant was denied effective assistance of counsel as guaranteed
               by Section 10, Article I, of the Ohio Constitution and the Sixth and
               Fourteenth Amendments of the U.S. Constitution.

      V.       Appellant was denied a fair trial by the police officer’s improper

               comments while testifying.

                                  Right of Confrontation

      {¶16} In his third assignment of error, Sutton claims that the trial court violated his

right of confrontation when it allowed Officer Larkin to testify regarding Philpotts’s

out-of-court identification of Sutton as the person who broke into the house at 3641

Martin Luther King Blvd. Sutton contends that this statement is inadmissible hearsay.

      {¶17} A trial court has broad discretion in admitting evidence; absent an abuse of

that discretion and a showing of material prejudice, a trial court’s ruling on the

admissibility of evidence will be upheld. Fackelman v. Micronix, 8th Dist. Cuyahoga

No. 98320, 2012-Ohio-5513, ¶ 17; State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d

1157 (1985).
        {¶18} Evid.R. 801(C) defines hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” A statement is not hearsay if “[t]he declarant testifies at trial or

hearing and is subject to cross-examination concerning the statement, and the statement is

* * * one of identification of a person soon after perceiving the person, if the

circumstances demonstrate the reliability of the prior identification.”              Evid.R.

801(D)(1)(c); State v. Houston, 8th Dist. Cuyahoga No. 64574, 1994 Ohio App. LEXIS

52 (Jan. 13, 1994) (evidence of prior identification is not hearsay pursuant to Evid.R.

801(D)(1)(c) if the identification carries traditional indicia of trustworthiness and

reliability).   In a case of prior identification, it matters not that the witness cannot

subsequently identify the offender at trial. Staff Note, Evid.R. 801(D)(1)(c); see also

State v. King, 8th Dist. Cuyahoga No. 61040, 1993 Ohio App. LEXIS 1130, * 10 (Feb.

25, 1993).

        {¶19} Here, Officer Larkin testified that upon arriving on the scene within ten

minutes of receiving the call from dispatch, she observed two men standing in front of the

residence next to the house to which the officers were responding.           Officer Larkin

approached the two men and inquired as to what was going on. At this point, Philpotts,

who had placed the initial call to the police, told the officer that the man with whom he

was standing was the man who had broken into 3641 Martin Luther King Blvd.

Philpotts’s statement to Officer Larkin was one of identification and was reported within

minutes of personally witnessing Sutton enter his neighbor’s home. The statement was
therefore trustworthy and reliable. Philpotts also testified at trial and was subject to

cross-examination. Officer Larkin’s statement in court as to Philpotts’s identification of

Sutton was therefore admissible under Evid.R. 801(D)(1)(c).

       {¶20} Furthermore, Officer Larkin’s testimony does not violate the Confrontation

Clause. The Sixth Amendment to the United States Constitution grants the accused the

right “to be confronted with the witnesses against him * * *.”            In Crawford v.

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United

States Supreme Court held that the Confrontation Clause bars “testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the defendant

had a prior opportunity for cross-examination.” A defendant’s constitutional right of

confrontation is therefore not violated when the accuser is available for cross-examination

at trial. State v. Collins, 8th Dist. Cuyahoga No. 89668, 2008-Ohio-2363, ¶ 57.

       {¶21} In this case, Philpotts appeared at trial and was subject to cross-examination.

 Therefore, Officer Larkin’s testimony concerning Philpotts’s identification of Sutton as

the man who entered his neighbor’s home did not violate the Confrontation Clause.

       {¶22} Sutton’s third assignment of error is overruled.

                            Ineffective Assistance of Counsel

       {¶23} In his fourth assignment of error, Sutton argues that he was denied a fair

trial because his trial counsel failed to object to Officer Larkin’s alleged hearsay

statements regarding Philpotts’s identification of Sutton as outlined in his third

assignment of error.
      {¶24} In order to establish a claim of ineffective assistance of counsel, a defendant

must demonstrate: (1) his counsel was deficient in some aspect of his representation, and

(2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      {¶25} The first element requires a showing that counsel made errors “so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687. It necessarily requires that when a defendant complains of the

ineffectiveness of counsel’s assistance, “the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 687-688.

      {¶26} Regarding the second element, the defendant must demonstrate that there is

a “reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989), citing Strickland at 694. Moreover, a defendant’s failure to satisfy

one element of the Strickland test negates the court’s need to consider the other. State v.

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.

       {¶27} As we previously determined in Sutton’s third assignment of error, Officer

Larkin’s testimony in court as to Philpotts’s identification of Sutton as the man he saw

enter his neighbor’s home was admissible under Evid.R. 801(D)(1)(c).            Philpotts’s

statement to Officer Larkin was one of identification, it was given within moments of

Philpotts’s personal observation of Sutton’s actions, and Philpotts was available at trial

and subject to cross-examination. As such, trial counsel’s failure to object to such
testimony did not constitute deficient performance.        Absent a showing of deficient

representation, Sutton’s claim of ineffective assistance of counsel must fail.

       {¶28} Sutton’s fourth assignment of error is overruled.

                               Sufficiency of the Evidence

       {¶29} In his first assignment of error, Sutton contends that the trial court erred in

denying his Crim.R. 29(A) motion for acquittal because there was insufficient evidence to

support his conviction for breaking and entering.

       {¶30} A Crim.R. 29(A) motion challenges the sufficiency of the evidence. When

reviewing a challenge of the sufficiency of the evidence, an appellate court examines the

evidence admitted at trial and determines 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. “The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” Id. A sufficiency challenge requires us to review

the record to determine whether the state presented evidence on each of the elements of

the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

A reviewing court is not to assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
       {¶31} Sutton was convicted of breaking and entering in violation of R.C.

2911.13(A), which states that “[n]o person by force, stealth, or deception, shall trespass in

an unoccupied structure, with purpose to commit therein any theft, offense, or felony.”

Sutton argues that the state failed to show that: he was the person Philpotts saw breaking

into the home at 3641 Martin Luther King Blvd., he trespassed, or he intended to commit

a theft offense on the property because there was no evidence that he took anything. We

find no merit to this argument.

       {¶32} First, Sutton claims that the state failed to establish that he was the person

who entered the vacant home.         The evidence, however, demonstrates as follows:

Philpotts testified that he saw a thin black male break the window of the back door at

3641 Martin Luther King Blvd., stick his hand in the broken window, and unlock the door

while standing on a five-gallon bucket in order to reach inside. He then saw the male

enter the home. After he phoned police for the second time, Philpotts observed this same

male coming out of the neighbor’s driveway. Philpotts confronted the male and asked

him why he went in the house, and the male told him “he was just looking around.”

While he could not positively identify Sutton in court, Philpotts testified that the male he

saw breaking into the house next door, the one who also admitted to Philpotts that he was

inside the home, is the same male the police took into custody that day. Officer Larkin

testified that, upon arriving on the scene, Philpotts indicated that the man with whom he

was standing was the man who had broken into 3641 Martin Luther King Blvd. At trial,

Officer Larkin identified Sutton as the man she saw standing with Philpotts on October 4.
       {¶33} When viewing this evidence in a light most favorable to the state, we find

sufficient evidence identifying Sutton as the perpetrator. As we previously determined,

Officer Larkin’s testimony concerning Philpotts’s identification of Sutton as the man he

saw enter his neighbor’s house was properly admitted as a statement of identification

permitted under Evid.R. 801(D)(1)(c).

       {¶34} We also find sufficient evidence to demonstrate that Sutton trespassed on

the property. Trespass can be shown by circumstantial evidence, real evidence, and

direct evidence, or any combination of the three. State v. Collins, 8th Dist. Cuyahoga

No. 98350, 2013-Ohio-488, ¶ 15. Direct evidence exists when “a witness testifies about

a matter within the witness’s personal knowledge such that the trier of fact is not required

to draw an inference from the evidence to the proposition that it is offered to establish.”

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. In contrast,

“circumstantial evidence requires the drawing of inferences that are reasonably permitted

by the evidence.”     Id.   Circumstantial evidence carries the same weight as direct

evidence. Id., citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).

       {¶35} Here, as previously stated, Philpotts testified that he saw a male break a

window on the rear door, reach his hand inside the window to unlock the door, and enter

the home. Pearlie Durrah, the only person authorized to show the property, testified that

she had no appointments to show the property on October 4, was never contacted by

Sutton for purposes of viewing the property, and had never seen Sutton in relation to

showing the home. She further testified that she did not give anyone permission to enter
the home on October 4. There was also evidence of a broken window in the back door

and broken glass both inside the door and on the outside. We find this evidence is

sufficient to show that Sutton trespassed.

       {¶36} Finally, we find the evidence is sufficient to show that Sutton entered the

property with the purpose to commit a theft. Sutton argues that there was no evidence

that he took anything from the home. However, the intent to commit a theft can be

inferred from the fact of forcible entry, absent circumstances giving rise to a different

inference. State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233,

¶ 47 (8th Dist.), citing State v. Flowers, 16 Ohio App.3d 313, 315, 475 N.E.2d 790 (10th

Dist.1984), overruled on other grounds, State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d

1037 (2000); State v. Powers, 8th Dist. Cuyahoga No. 86365, 2006-Ohio-2458, ¶ 23;

State v. Turner, 8th Dist. No. 78630, 2001 Ohio App. LEXIS 3718 (Aug. 23, 2001).

       {¶37} In this case, it is reasonable to infer that Sutton entered the home with the

intent to commit theft.   The evidence showed that Sutton broke a window in a back door

in order to enter the home. Unbeknownst to Sutton, the only items of value in the home

were a piano and an organ, which were too large for a single person to carry.         Sutton

therefore left the home with nothing in his hands. The fact that Sutton’s purpose may

have been frustrated by the contents in the home, or lack thereof, does not alter his intent.

 The state was not required to show that he actually stole something in order to convict

him of breaking and entering under R.C. 2911.13(A).       State v. Russell, 12th Dist. Butler

No. CA2012-08-156, 2013-Ohio-3079, ¶ 38.
       {¶38} According to Philpotts, Sutton told him that he was only “looking around,”

when Philpotts confronted Sutton soon after he exited the home. However, the finder of

fact is not required to accept a “competing inference of innocence” when the same

circumstances could also infer guilt beyond a reasonable doubt. State v. Galloway, 10th

Dist. Franklin No. 03AP-407, 2004-Ohio-557, ¶ 25, citing Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492.

       {¶39} In light of the above, it is reasonable to infer that Sutton’s purpose in

breaking into the home on Martin Luther King Blvd. was to commit a theft offense.

       {¶40} Viewing all of the evidence in the light most favorable to the prosecution,

we find that there was sufficient evidence supporting Sutton’s conviction for breaking

and entering. Accordingly, Sutton’s first assignment of error is overruled.

                           Manifest Weight of the Evidence

       {¶41} In his second assignment of error, Sutton contends that his conviction is

against the manifest weight of the evidence.

       {¶42} Unlike sufficiency of the evidence, manifest weight of the evidence raises a

factual issue.

       “The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

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

       be reversed and a new trial ordered. The discretionary power to grant a new
      trial should be exercised only in the exceptional case in which the evidence

      weighs heavily against the conviction.”

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

      {¶43} In evaluating a manifest weight claim, “the weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of the facts.” State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

When examining witness credibility, “the choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d

120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some, or none of the

testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No.

98538, 2013-Ohio-1184, ¶ 18.

      {¶44} In support of his argument, Sutton once again argues that the state failed to

provide sufficient, or “requisite,” evidence to support a conviction. He relies on his

claim that Philpotts, the sole eyewitness, was unable to identify Sutton at trial as the

person who broke into the home.

      {¶45} While it is true that Philpotts was unable to positively identify Sutton in the

courtroom as the perpetrator, he made a prior identification of Sutton at the

scene. Philpotts testified at trial that he saw a male break the window of the back door at

3641 Martin Luther King Blvd. and stick his hand inside the broken window, while
standing on a bucket in order to reach inside. He further testified that he saw the male

then enter the home. After calling the police, Philpotts observed this same male coming

out of the neighbor’s driveway. Upon confronting him, the male admitted to being inside

the home. Philpotts testified that the male he saw break into the home is the same male

the police took into custody on October 4. Officer Larkin testified that, upon arriving on

the scene, Philpotts indicated that the male with whom he was standing was the same man

who had broken into his neighbor’s home. Officer Larkin testified at trial that Sutton

was the man she saw standing with Philpotts on that day. The fact that Philpotts could

not identify Sutton at trial, more than two and one-half years after the incident, is not fatal

to Sutton’s identity as the perpetrator where Philpotts made a prior identification to

Officer Larkin at the scene within minutes of the alleged crime. Officer Larkin’s

testimony relating to Philpotts’s identification is sufficient to establish Sutton’s identity.

       {¶46} Sutton also claims that the trial court “had plenty of tainted evidence from

the first trial to rely upon[,] causing it to reach improper conclusions and thus an incorrect

verdict” and it “wanted to hold someone accountable.” He fails, however, to support his

allegations with evidence from the record that would indicate the trial court considered

anything other than the evidence presented at trial. Appellate courts will presume that a

trial court considered only relevant and admissible evidence in a bench trial. State v.

Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 61.

       {¶47} In light of the above, we cannot find that the factfinder clearly lost its way in

convicting Sutton of breaking and entering and created such a manifest miscarriage of
justice that the conviction must be reversed. Sutton’s second assignment of error is

therefore overruled.

      Officer Larkin’s Testimony Regarding Sutton’s “Inconsistent” Statement

       {¶48} In his fifth assignment of error, Sutton argues that the trial court erred by

allowing Officer Larkin to testify about Sutton’s stated reason for being on the property

as being “inconsistent.” He claims that Officer Larkin’s testimony was a comment on

the truthfulness of Sutton’s statement and was therefore improper.

       {¶49} This court has held that it is improper for a witness to vouch for the

credibility of another witness.       State v. Young, 8th Dist. Cuyahoga No. 79243,

2002-Ohio-2744 (holding that it was plain error when a detective testified that a witness

was “telling the truth”). An officer is not vouching for witness credibility, however, by

explaining the investigative procedure he followed.            State v. Monroe, 8th Dist.

Cuyahoga No. 94768, 2011-Ohio-3045, ¶ 34 (finding the detective’s testimony that

defendant’s comment was inconsistent with other evidence did not invade the province of

the jury); see also State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051

(finding that the detective’s testimony that one statement corroborated another is not to

say that either was true, but rather that they were consistent).

       {¶50} On cross-examination, in response to defense counsel’s question, “He told

you he was interested in the property, did he not?” — and over the state’s objection,

Officer Larkin indicated that she had spoken with Sutton once he was detained in her

zone car and Sutton offered an explanation as to why he was on the property. On
redirect, the following exchange took place between the prosecutor and the officer:

        Q:   With what you learned from Mr. Philpotts, was it consistent with
             what Mr. Sutton’s statement was?

        A:   No, sir, it was not consistent.

        Q:   After hearing from Mr. Philpotts and Mr. Sutton, did you make a
             decision that day in terms of whether or not to arrest?

        A:   Yes, I did, sir.

        Q:   What decision did you make?

        A:   I made a decision that day to place Mr. Sutton under arrest.

        Q:   Okay. And what in total went into that decision?

        A:   Based upon the evidence at the vacant property, sir.

        Q:   And [defense counsel] asked you if you collected any evidence as to
             whether or not Mr. Sutton committed a crime that day. Do you recall
             that?

        A:   Yes, that is correct.

        Q:   Okay. And you took a statement from Mr. Philpotts[. W]ould you
             consider that evidence?

        A:   Yes, sir.

      {¶51} The above exchange reveals that Officer Larkin did not vouch for the

credibility of one witness versus the other. She testified that in the course of her

investigation, she received two statements that were inconsistent with each other — one

from Philpotts and one from Sutton. Officer Larkin did not testify that either Philpotts

or Sutton was telling the truth, nor did she give her opinion as to the veracity of their

respective statements.    Rather, Officer Larkin testified that what Sutton said was
inconsistent with what she learned during her investigation, which consisted of evidence

she gathered from the scene, including Philpotts’s statement.      The officer’s testimony

regarding her investigative procedure and the decision to place Sutton under arrest was

not a comment on the truthfulness of Sutton’s statement and was therefore proper.

      {¶52} Sutton’s fifth assignment of error is overruled.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR
