[Cite as State v. Eckard, 2016-Ohio-5174.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-15-45

        v.

BRYSON A. ECKARD,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 15CR0206

                                      Judgment Affirmed

                             Date of Decision: August 1, 2016




APPEARANCES:

        Kevin P. Collins for Appellant

        Adam D. Meigs for Appellee
Case No. 9-15-45


PRESTON, J.

        {¶1} Defendant-appellant, Bryson A. Eckard (“Eckard”), appeals the

October 22, 2015 judgment entry of the Marion County Court of Common Pleas.

For the reasons that follow, we affirm.

        {¶2} On May 7, 2015, the Marion County Grand Jury indicted Eckard on

three counts, including:              Count One of burglary in violation of R.C.

2911.12(A)(2), a second-degree felony, Count Two of theft of firearms in

violation of R.C. 2913.02(A)(1), a third-degree felony, and Count Three of theft of

drugs in violation of R.C. 2913.02(A)(1), a fourth-degree felony. (Doc. No. 1).

The indictment contained a firearm specification as to Counts One and Two. (Id.).

        {¶3} On May 11, 2015, Eckard appeared for arraignment and entered pleas

of not guilty. (Doc. No. 5).

        {¶4} On August 21, 2015, Eckard filed a request for a bill of particulars,

which the State filed on September 16, 2015. (Doc. Nos. 25, 43).

        {¶5} On September 17, 2015, a jury trial was held. (Sept. 17, 2015 Tr. at

1). The jury found Eckard guilty of the burglary offense and not guilty of the

theft-of-firearms and theft-of-drugs offenses.1               (Sept. 17, 2015 Tr. at 175-176);

(Doc. Nos. 45, 46, 47). The trial court filed its judgment entry of conviction and

sentence on October 22, 2015. (Doc. No. 52). The trial court sentenced Eckard


1
 The State moved to amend the indictment by withdrawing the firearm specification as it applied to Count
One, and the indictment was amended. (Sept. 17, 2015 Tr. at 176).

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to three years in prison and ordered that Eckard serve the term consecutively to the

sentence imposed in another Marion County case. (Id.).

       {¶6} Eckard filed his notice of appeal on November 20, 2015. (Doc. No.

59). He raises two assignments of error for our review, which we will address

together.

                           Assignment of Error No. I

       The Record Contains Insufficient Evidence to Support
       Defendant-Appellant’s Conviction for Burglary in Violation of
       R.C. 2911.12(A)(2) and Therefore Violates the Constitutions of
       the United States and of the State of Ohio.

                           Assignment of Error No. II

       Defendant-Appellant’s Conviction for Burglary in Violation of
       R.C. 2911.12(A)(2) is Contrary to the Manifest Weight of the
       Evidence and Therefore Violates the Constitutions of the United
       States and of the State of Ohio.

       {¶7} In his first and second assignments of error, Eckard argues that his

burglary conviction is based on insufficient evidence and is against the manifest

weight of the evidence. In particular, Eckard argues that there is insufficient

evidence that he was the person who committed the burglary. In his manifest-

weight-of-the-evidence argument, Eckard challenges the weight that was accorded

to the DNA evidence.




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       {¶8} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389

(1997). As such, we address each legal concept individually.

       {¶9} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

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

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

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, “[t]he 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. “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts

nor assess the credibility of witnesses, as both are functions reserved for the trier

of fact.”   State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505,

2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No.

4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy

rather than credibility or weight of the evidence.”), citing Thompkins at 386.




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       {¶10} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine 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.’” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters

relating to the weight of the evidence and the credibility of the witnesses. State v.

DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.”

State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       R.C. 2911.12(A)(2) sets forth the offense of burglary and provides:

       (A) No person, by force, stealth, or deception, shall do any of the

       following:

       ***

       (2) Trespass in an occupied structure or in a separately secured or

       separately occupied portion of an occupied structure that is a


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       permanent or temporary habitation of any person when any person

       other than an accomplice of the offender is present or likely to be

       present, with purpose to commit in the habitation any criminal

       offense.

       {¶11} Eckard does not dispute the evidence concerning the underlying

elements of the burglary offense of which he was convicted; rather, he disputes the

issue of identity as to the conviction. See State v. Missler, 3d Dist. Hardin No. 6-

14-06, 2015-Ohio-1076, ¶ 13. See also State v. Littlejohn, 8th Dist. Cuyahoga No.

101549, 2015-Ohio-875, ¶ 30. As such, we will address only the identity element

of the offense. Missler at ¶ 13, citing State v. Carter, 2d Dist. Montgomery No.

25447, 2013-Ohio-3754, ¶ 9-12. “‘It is well settled that in order to support a

conviction, the evidence must establish beyond a reasonable doubt the identity of

the defendant as the person who actually committed the crime at issue.’” Id.,

quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27,

citing State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19, and

State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11.

       {¶12} At trial, the State offered the testimony of Lieutenant Shane Gosnell

(“Lieutenant Gosnell”) of the Marion Police Department. (Sept. 17, 2015 Tr. at

56-57). Lieutenant Gosnell testified that he responded to a burglary of a residence

located at 487 East Farming Street in Marion on November 25, 2014. (Id. at 57).


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He testified that he discovered a safe in the bedroom closet that was pried open

with “some type of tool.” (Id. at 59).

       {¶13} According to Lieutenant Gosnell, a witness reported to him that he

saw two suspicious people running from the backside of the house, and the witness

described a white van and its license-plate number that he believed was involved

in the burglary. (Id. at 58). Lieutenant Gosnell investigated the witness’s report

regarding the van by running the license-plate number provided by the witness,

which was associated with an address on Libby Lane in Marion. (Id. at 60).

Lieutenant Gosnell went to the Libby Lane address and observed a van at that

address, which was a different make and color than the description provided by the

witness. (Id. at 60-61).

       {¶14} While Lieutenant Gosnell was investigating the witness’s report, he

received a phone call from the victim homeowner, Gary Lanthron (“Gary”),

explaining that Gary discovered a crowbar that “was foreign to the scene and

probably brought by the people that were involved.” (Id. at 61). Lieutenant

Gosnell returned to the scene, and Gary brought the crowbar, which was

discovered in the bedroom, out to Lieutenant Gosnell. (Id.). Lieutenant Gosnell

identified State’s Exhibit 1 as the crowbar Gary discovered in the bedroom. (Id. at

62, 64). Lieutenant Gosnell identified State’s Exhibit 2 as photographs that he

took of the scene as it appeared on November 25, 2014. (Id. at 65, 69). In


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particular, of those photographs, Lieutenant Gosnell identified one photograph as

depicting a green gun safe with yellow paint transfer—matching the yellow paint

from the crowbar—on the area that was pried open. (Id. at 68). He also testified

that there is green paint transfer on the crowbar. (Id. at 69). Lieutenant Gosnell

testified that the crowbar appears to be the tool which was used to pry open the

gun safe. (Id.).

       {¶15} Lieutenant Gosnell testified that he sent the crowbar to the Bureau of

Criminal Investigation (“BCI”) to be tested for DNA evidence. (Id. at 69-71).

According to Lieutenant Gosnell, BCI identified Eckard’s DNA as being on the

crowbar. (Id. at 72). BCI identified the DNA as matching Eckard’s DNA because

Eckard’s DNA was in the “CODIS” database—the database used to collect DNA

samples from criminal offenders.      (Id. at 71-72).   Because BCI discovered

Eckard’s DNA on the crowbar, Lieutenant Gosnell testified that he asked Eckard

to voluntarily submit a “standard” DNA sample to compare to the DNA found on

the crowbar. (Id. at 72-73). At the time Lieutenant Gosnell asked Eckard to

submit his DNA sample, Lieutenant Gosnell also asked Eckard about the burglary

and why Eckard’s DNA was found on the crowbar to which Eckard responded,

respectively, that he was not involved in the burglary and that he did not know

how his DNA got onto the crowbar. (Id.). Lieutenant Gosnell testified that,

because Eckard did not voluntarily provide a DNA sample, law enforcement


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obtained a search warrant for Eckard’s DNA and obtained the sample of Eckard’s

DNA, which matched the DNA found on the crowbar. (Id. at 75).

       {¶16} Lieutenant Gosnell testified that he spoke with Gary to see if there

would be any reason why Eckard’s DNA would be found in his house, but Gary

told him that “he was not familiar with [Eckard].” (Id.). According to Lieutenant

Gosnell, Gary had a video surveillance system surveilling his residence. (Id. at

60).

       {¶17} On cross-examination, Lieutenant Gosnell testified that the crowbar

appears to be a used crowbar exhibiting a lot of wear. (Id. at 76). Lieutenant

Gosnell testified that the witness described that he saw “two * * * white male

subjects run from the area, then he saw the white van leave, believing that they got

into it, with a female driver, and * * * he also saw a black male in the area, but * *

* wasn’t sure [of] his involvement.” (Id. at 77). Lieutenant Gosnell further

testified that the witness described one of the white males as wearing a black shirt

and the other as wearing a white shirt. (Id.). He testified that the white van

described by the witness was not connected to Eckard. (Id. at 78). Lieutenant

Gosnell testified that the burglars appeared to have worn gloves because law

enforcement were unable to find any fingerprint evidence. (Id. at 79). According

to Lieutenant Gosnell, one of the burglars was identified as Zach Ballard

(“Ballard”) from the distinctive clothing he was wearing during the burglary,


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which matched the clothing that the suspect in a different theft was wearing. (Id.

at 80).

          {¶18} On redirect examination, Lieutenant Gosnell testified that the white

van that the witness described was determined not to be involved with the

burglary—it is registered to a woman who provided law enforcement an alibi for

the time of the burglary. (Id. at 85). He also testified that the information

provided to him by the witness “didn’t pan out.” (Id.).

          {¶19} On re-cross examination, Lieutenant Gosnell testified that he

observed “both suspects wearing gloves” from Gary’s surveillance video. (Id. at

86-87).

          {¶20} The State also called Lieutenant Matt Bayles (“Lieutenant Bayles”)

of the Marion Police Department who testified that he responded to the Farming

Street burglary. (Id. at 87-88). Lieutenant Bayles testified that he copied with his

phone’s video camera the video depicting the burglary from Gary’s surveillance

system. (Id. at 88). Lieutenant Bayles identified State’s Exhibit 3 as the video he

recorded with his phone of the surveillance video. (Id. at 90). According to

Lieutenant Bayles, the video depicts three burglars in the house—one wearing a

light-colored jacket with black gloves, one with a light-colored jacket carrying

something in his left hand, and one wearing a plaid coat or sweater. (Id. at 90-92).

He testified that it did not appear that the burglar carrying the object in his left


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hand was wearing gloves. (Id. at 91). He also testified that he could not identify

from the video what that burglar was carrying in his left hand. (Id. at 91-92).

       {¶21} On cross-examination, Lieutenant Bayles testified that he assumed

that the burglars were familiar with the house because they were wearing masks,

and typical home burglars do not wear masks “unless they knew that there was

[sic] cameras in the house.” (Id. at 93). Also, Lieutenant Bayles testified that he

assumed that the burglars were familiar with the house because a hinged-top

coffee table was opened during the burglary, which Gary pointed out to him “that

only somebody that knew this was this way would ever do that.” (Id. at 94).

       {¶22} The State called as its next witness, Timothy Augsback

(“Augsback”), a DNA analyst with BCI. (Id. at 102). Augsback testified that he

tested the “evidence sample”—the crowbar—for DNA evidence. (Id. at 109). He

testified, “Eckard was included as the major donor of the DNA and the statistic,

based on the national database provided by the FBI, the expected frequency of

occurrence of the DNA profile is 1 in 37 billion 130 million unrelated

individuals.” (Id. at 112). Augsback explained, “[I]f I were to test five times the

word population[, of] that number of individuals I would expect to encounter this

DNA profile one time.” (Id.). However, according to Augsback, the FBI updated

its database after he first prepared his report. (Id. at 111). Augsback retested the

DNA profile in accordance with the updated FBI database and produced the same


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statistic. (Id. at 113). Augsback testified that, as a result of his DNA analysis,

“Eckard was included in the DNA profile from the crowbar.” (Id.). Augsback

identified as State’s Exhibit 4 the report he prepared reflecting his DNA analysis.

(Id. at 114).

       {¶23} On cross-examination, Augsback testified that “major donor” means

“that the DNA profile was a mixture, the major donor was consistent with Bryson

Eckard, and then there was additional minor data that was not suitable for

comparison.” (Id. at 116-117). Augsback testified that it is possible that DNA

could be transferred to the crowbar if it was handled by someone wearing

gloves—a secondary DNA transfer, which is “not necessarily a good source of

DNA on evidentiary items.” (Id. at 117). Augsback testified that he does not

know when Eckard’s DNA was deposited on the crowbar and that DNA does not

have a “shelf life.” (Id. at 117-118). He further testified that Eckard was not the

only person to touch the crowbar. (Id. at 118).

       {¶24} On redirect examination, Augsback clarified that his conclusion that

Eckard was a major donor meant

       that there’s a mixture, meaning multiple contributors to the DNA

       profile, and a major indicates that one contributor was stronger than

       the rest of the information. So one of the individuals, pieces of

       information stood out, and then the remaining pieces of information


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       were not sufficient for comparison, so I would not be able to make

       any assessments as to who else had contributed to that DNA.

(Id. at 119).

       {¶25} As its next witness, the State called Gary, who testified that his home

was burglarized just before Thanksgiving in 2014. (Id. at 121). Gary testified that

he discovered the crowbar “laying on the bed” and that his gun safe had been pried

open. (Id. at 123-124). Gary identified as State’s Exhibit 1 the crowbar that he

discovered on his bed.       (Id. at 124).       Gary testified that he reviewed the

surveillance video and saw from the video that three people burglarized his house.

(Id. at 125). Gary identified as State’s Exhibit 3 the surveillance video which was

then played for the jury. (Id. at 126).

       {¶26} On cross-examination, Gary testified that he is not familiar with

Eckard. (Id. at 129).

       {¶27} Finally, the State called Connie Lanthron (“Connie”) who testified

that she and Gary discovered the crowbar at the foot of their bed. (Id. at 130,

133). Connie testified that she did not recognize the crowbar and told Gary “to

call the Officer back out because [she] knew it wasn’t [theirs].” (Id. at 133).

Connie identified as State’s Exhibit 1 the crowbar that she and Gary discovered at

the foot of their bed. (Id. at 134). Connie testified that she did not know Eckard

but that she has “seen him down the street a couple times.” (Id.).


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       {¶28} Thereafter, the State moved to admit its exhibits, which were

admitted without objection, and rested. (Id. at 135-136). Next, Eckard made a

Crim.R. 29(A) motion, which the trial court denied. (Id. at 136-137). Eckard did

not provide any evidence, rested, and renewed his Crim.R. 29(A) motion, which

was denied. (Id. at 137-138). The case was submitted to the jury, which found

Eckard guilty as to Count One of the indictment and not guilty as to Counts Two

and Three of the indictment. (Id. at 174-176).

       {¶29} We first review the sufficiency of the evidence supporting Eckard’s

burglary conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-

1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL

355190, *1 (Mar. 26, 1999).       In support of his sufficiency-of-the-evidence

challenge, Eckard argues that a rational trier of fact could not have found that he

“was present in the Lanthron residence and committed a burglary.” (Appellant’s

Brief at 10). In particular, Eckard argues that: (1) “[t]he video provides no

evidence sufficient to support [his] conviction”; (2) the testimony of the State’s

witnesses “provides no evidence to connect [him] to the burglary”; and (3) the

DNA evidence recovered from the crowbar is not sufficient to support his

conviction because the crowbar “exhibited quite a bit of wear” and because his

DNA profile was not the only DNA profile found on the crowbar. (Appellant’s

Brief at 10-14).


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      {¶30} Despite Eckard’s argument that his conviction is based on

insufficient evidence because none of the State’s witnesses identified him as the

person who committed the burglary, “[t]here is no requirement that a defendant be

specifically identified as the perpetrator of a crime by a witness in testifying in

court to uphold his conviction for that crime.” Littlejohn, 2015-Ohio-875, at ¶ 37,

citing State v. Brown, 8th Dist. Cuyahoga No. 98881, 2013-Ohio-2690, ¶ 30 and

State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19. Rather,

“‘direct or circumstantial evidence is sufficient to establish the identity of a

defendant as the person who committed a crime.’” Missler, 2015-Ohio-1076, ¶

13, quoting Collins at ¶ 19, citing Lawwill, 2008-Ohio-3592, at ¶ 11.

“‘Circumstantial evidence’ is the ‘proof of facts by direct evidence from which the

trier of fact may infer or derive by reasoning or other facts.’” Lawwill at ¶ 12,

quoting State v. Wells, 12th Warren No. CA2006-02-029, 2007-Ohio-1362, ¶ 11,

citing State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶

26. Circumstantial evidence has no less probative value than direct evidence.

Griesheimer at ¶ 26, citing Jenks, 61 Ohio St.3d 259, at paragraph one of the

syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court

has long held that circumstantial evidence is sufficient to sustain a conviction if

that evidence would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.”).


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      {¶31} Viewing the evidence in a light most favorable to the prosecution, a

rational trier of fact could have found that Eckard was the person who committed

the burglary. Gary and Connie testified that they found a crowbar, which they did

not recognize as belonging to them, in their bedroom after the burglary.

Lieutenant Gosnell testified that he observed yellow paint transfer, matching the

paint color of the crowbar, on Gary’s green gun safe, which was pried open during

the burglary.   Lieutenant Gosnell also testified that he observed green paint

transfer, matching the paint color of the gun safe, on the crowbar. Based on the

reciprocating paint transfer, Lieutenant Gosnell testified that it appeared that the

crowbar was used to pry open the gun safe. (See also State’s Exs. 1, 2).

      {¶32} Eckard’s DNA was discovered on the crowbar. Although multiple

DNA profiles were on the crowbar, Eckard’s DNA profile was the only DNA

profile determined to be a major contributor. Augsback testified that a major-

contributor profile means that DNA profile is “stronger” than the other profiles on

the crowbar—that is, the major DNA profile “stood out” while the other profiles

were insufficient for comparison. Eckard provided to law enforcement a standard

DNA sample, which matched the DNA profile found on the crowbar. Augsback

testified that the major contributor to the DNA profile on the crowbar has a

frequency of occurrence of 1 in 37,130,000,000—that is, the major contributor to




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the DNA profile on the crowbar would be encountered once in a test of five times

the world population.

      {¶33} DNA evidence identifying a defendant as a major contributor to the

DNA profile found on an object linked to a crime is sufficient evidence to sustain

a conviction. Brown at ¶ 31, 35 (concluding that Brown’s convictions were based

on sufficient evidence because his DNA profile was the major contributor to the

DNA profile discovered on a shirt connected to the crimes even though the DNA

profile on the shirt also revealed the DNA of unidentified minor contributors);

State v. Crabtree, 9th Dist. Summit No. 24946, 2010-Ohio-2073, ¶ 17, 19

(concluding that a rational trier of fact could have concluded that Crabtree

committed the crimes because his DNA was consistent as the major contributor to

the DNA profile discovered on a gun that was connected to the crimes); State v.

Bridgeman, 2d Dist. Champaign No. 2010 CA 16, 2011-Ohio-2680, ¶ 16, 18

(concluding that a reasonable trier of fact could have concluded that Bridgeman

committed the bank robbery because DNA testing of a ski mask and glove

connected to the robbery revealed Bridgeman as the major contributor to the DNA

profile discovered on the glove and the ski mask). See also State v. Johnson, 5th

Dist. Stark No. 2012 CA 00054, 2012-Ohio-5621, ¶ 25 (concluding that “the jury

could have concluded that [Johnson] and his cohort invaded the home” because




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Johnson’s DNA was discovered on a hat that the victim identified as the hat “worn

by the man who held the gun to his head”).

        {¶34} The surveillance video of the burglary depicts one of the burglars

carrying an object in his left hand. Further, it is not apparent from the video

whether that burglar is wearing gloves. Even if the surveillance video is alone

insufficient to identify Eckard as the person who committed the burglary, the

totality of the State’s evidence, particularly considering the DNA evidence, “could

well have convinced the jury that ‘the application of various facts formed a larger

picture that, when viewed as [a] whole, made a compelling case for [Eckard’s]

guilt.’” Littlejohn, 2015-Ohio-875, at ¶ 39, quoting State v. Cassano, 8th Dist.

Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 19.

        {¶35} Accordingly, a rational trier of fact have found beyond a reasonable

doubt that Eckard was the person who committed the burglary based on the

testimony of the State’s witnesses, the scientific evidence establishing that Eckard

was the major contributor to the DNA profile found on the crowbar, and the

surveillance video. That is, a rational trier of fact could have found that Eckard

used the crowbar to pry open the gun safe during the burglary and was one of the

men seen in the surveillance video burglarizing the Lanthron residence. See id. at

¶ 39.




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       {¶36} Having concluded that Eckard’s conviction is based on sufficient

evidence, we next address Eckard’s argument that his convictions are against the

manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76. Eckard makes

many of the same arguments that he makes in support of his sufficiency-of-the-

evidence assignment of error.      In particular, Eckard points to the following

evidence as weighing against his conviction: (1) there were other contributors to

the DNA profile discovered on the crowbar; (2) the conflicting testimony that the

burglars were familiar with the residence and Gary and Connie’s testimony that

they did not know Eckard; (3) none of the State’s witnesses identified Eckard as

the person who committed the burglary; (4) there is no evidence as to how long

Eckard’s DNA evidence had been on the crowbar or where Eckard was when it

was deposited on the crowbar; and (5) the report of the witness did not implicate

Eckard.

       {¶37} “Even removing the lens of favorability in favor of the prosecution,

through which we examine the sufficiency of the evidence, this is not an

exceptional case where the evidence weighs heavily against the convictions.”

State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 33. Although

the State’s case against Eckard is not overwhelming, the evidence that we

summarized in our sufficiency-of-the-evidence analysis supporting Eckard’s

conviction is weightier than the evidence against it.


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       {¶38} Eckard focuses the majority of his manifest-weight argument

challenging the weight that should be afforded to the DNA evidence. While there

was DNA of unidentified individuals as “minor” contributors to the DNA profile

discovered on the crowbar, the evidence that Eckard’s DNA being the major

contributor to the DNA profile discovered on the crowbar is weightier than those

other minor profiles. See Bridgeman, 2011-Ohio-2680, at ¶ 36, 40. Eckard’s

DNA was determined to be the only major contributor to the DNA profile

discovered on the crowbar—the other “minor” DNA data was not suitable for

comparison. Littlejohn, 2015-Ohio-875, at ¶ 34 (concluding that “the fact that the

DNA profile on the gloves was a mixture of major and minor contributors—

including in addition to Littlejohn’s DNA as the major contributor, the DNA of at

least one other, unidentified individual as a minor contributor—does not warrant

overturning Littlejohn’s convictions”).        Likewise, Augsback’s testimony

established that, out of the entire population of the world five times over, only one

person would be expected to match the major contributor to the DNA profile

discovered on the crowbar—Eckard. Compare Crabtree, 2010-Ohio-2073, at ¶ 23

(concluding that it was reasonable for the jury to conclude that Crabtree was

responsible for the crimes since “the DNA evidence was consistent with

Crabtree’s, and testimony establishing that out of the entire population alive, only

one person would be expected to match the DNA profile on the gun”). Despite


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Lieutenant Gosnell informing Eckard that his DNA was discovered on a crowbar

found at a crime scene, Eckard denied to Lieutenant Gosnell any knowledge of

how his DNA was deposited on the crowbar. The jury did not need to guess how

Eckard’s DNA was deposited on the crowbar and can infer from the totality of the

evidence presented at trial that Eckard was one of the men who participated in the

burglary. See Brown, 2013-Ohio-2690, ¶ 33.

       {¶39} Furthermore, because Eckard’s DNA was found on the crowbar that

was found at the crime scene, it was permissible for the jury to infer a link

between Eckard and the crime scene. See James, 2012-Ohio-966, at ¶ 23; Brown

at ¶ 42. Although the crowbar exhibited a lot of wear, as we stated above, Eckard

was identified as the major contributor to the DNA profile discovered on the

crowbar. That the State’s witnesses did not identify Eckard as the person who

committed the burglary is a matter for the trier of fact to weigh. See Williams,

2011-Ohio-4760, at ¶ 24. Also for the jury to weigh is the witness’s report to law

enforcement that did not implicate Eckard. See Bridgeman at ¶ 35, 40.

       {¶40} Likewise, the jury did not consider the DNA evidence in a vacuum—

rather, the jury weighed the DNA evidence with the testimony of the State’s

witnesses and the surveillance video. See Littlejohn at ¶ 36, 39; State v. Campbell,

2d Dist. Montgomery No. 26575, 2016-Ohio-598, at ¶ 13. Indeed, the jury could




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infer from the evidence presented at trial that Eckard was the most recent person to

handle the crowbar. See Bridgeman, 2011-Ohio-2680, at ¶ 40; Brown at ¶ 35.

      {¶41} Although the surveillance video clearly depicts the first burglar to

enter the house wearing gloves, it is unclear from the video whether the second

burglar is wearing gloves. The second burglar is shown carrying an object that

could be the crowbar. The third burglar was identified as Ballard. The jury could

infer that Eckard was the second burglar. See State v. Gray, 9th Dist. Summit No.

27365, 2015-Ohio-1248, ¶ 53 (concluding that Gray’s conviction was not against

the manifest weight of the evidence even though the jury was required to infer

“from Mr. Gray’s conduct on the video as to his actions outside the eye of the

camera” because “[t]he jury was able to view the surveillance video in conjunction

with the various witnesses’ testimony”).

      {¶42} Eckard’s reliance on the conflicting testimony concerning the

burglars’ familiarity with the Lanthron residence also does not demonstrate that

the jury clearly lost its way creating a manifest miscarriage of justice. Despite

Gary’s testimony that he did not know Eckard and Connie’s testimony that she

recognized him only from seeing him down the street from her home, there were

at least two other individuals that participated in the burglary that could have had

knowledge about the Lanthron residence.




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       {¶43} For these reasons, we cannot conclude that the jury clearly lost its

way and created such a manifest miscarriage of justice that Eckard’s convictions

must be reversed and a new trial ordered.

       {¶44} Eckard’s assignments of error are overruled.

       {¶45} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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