[Cite as State v. Grigsby, 2013-Ohio-2300.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 13-CA-11
ZACHARIAH GRIGSBY                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No. 12CRB2306

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            June 3, 2013


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

MICHAEL KING                                       PHILIP L. PROCTOR
Assistant Law Director                             Box 4803
40 West Main Street, 4th Floor                     Newark, OH 43058
Newark, OH 43055
[Cite as State v. Grigsby, 2013-Ohio-2300.]


Gwin, P.J.

        {¶1}     Defendant-appellant Zachariah Grigsby [“Grigsby”] appeals his conviction

and sentence after a bench trial in the Licking County Municipal Court on one count of

receiving stolen property a misdemeanor of the first degree.

                                          Facts and Procedural History

        {¶2}     On October 13, 2013, Grigsby and an individual known only as "Brad,"

were at the home of the victim, Harry Weger negotiating a deal to exchange Weger’s

non-operational cell phone for Grigsby’s cell phone.

        {¶3}     Weger contended that he made clear to Grigsby and Brad that his phone

was on the glass table. Weger testified that he had not agreed to trade at that time

because Grigsby did not have a telephone to trade. Weger did not see either individual

take the phone; however, about 10-15 minutes after they left Weger noticed the phone

had been taken. Grigsby had previously indicated he intended to sell the phone at Best

Buy. Accordingly, Weger called Best Buy as well as T-Mobile and reported the theft of

his phone. A customer service representative of Best Buy, Hailee Grove, took down the

serial number. He had also called "Brad," who denied any knowledge of the phone.

Attempts to reach Grigsby and his girlfriend were unsuccessful.

        {¶4}     When Grigsby entered Best Buy, Ms. Grove relayed the information to

James Horton, who works in the cell-phone department. Mr. Horton, who knew Grigsby

from prior dealings, proceeded to stall while the police were called. Sergeant Chad Hunt

of the Heath Police Department responded to the call. He recovered the phone and,

after processing it as evidence, returned the phone to Weger.
Licking County, Case No. 13-CA-11                                                       3


       {¶5}      Grigsby testified that he had taken the phone, but did give Weger the

phone he had promised.

       {¶6}      On October 24, 2012, the state filed a criminal complaint against Grigsby

for receiving stolen property in violation of R.C. 2913.51, a misdemeanor of the first

degree. On December 13, 2012, Grigsby requested a continuance to submit an

application for a court appointed attorney. Grigsby stated that he had sent an

application to the court, but because the court had not received it, he wanted a

continuance to submit another application. On December 14, 2012, the motion for

continuance was granted. In that Order, the court stated that no more continuances

would be granted to obtain counsel. Trial was set for January 8, 2013.

       {¶7}      On January 7, 2013, Grigsby filed a second request for a court appointed

attorney. He also submitted another pro se continuance request wherein he stated that

he had sent in a request for appointed counsel on January 2, 2013 but the court did not

receive it. The trial court denied Grigsby’s requests.

       {¶8}      On January 8, 2013, counsel appeared at the courthouse upon request to

be there by Grigsby and suggestion of the court.1 However, the court denied Grigsby’s

request for court appointed counsel. Grigsby then retained the attorney privately in the

hallway a few minutes before the trial was to begin. Counsel requested a continuance

both orally on the record and by submitting a written request for continuance. The trial

court denied counsel’s requests.

       {¶9}      After the state rested their case in chief, Grigsby moved for a directed

verdict pursuant to Criminal Rule 29. He argued that because he was charged with

receiving stolen property, as opposed to theft, there was insufficient evidence to sustain
       1
           Counsel is the same counsel who represents Grigsby on this appeal.
Licking County, Case No. 13-CA-11                                                    4


a conviction. The trial court denied the motion. Grigsby then requested a break to make

a phone call to get a witness to the courthouse who would support his position that the

property was not stolen. That motion was also denied. At the conclusion of the case,

Grigsby again argued, in his summation, that there was no proof of the charge of

receiving stolen property.

      {¶10} On January 8, 2013, the court filed a Judgment Entry of Conviction finding

Grigsby guilty of receiving stolen property and sentenced him to ninety days in the

Licking County Jail.

      {¶11} On January 25, 2013, Grigsby filed a motion to review the previous order

and that counsel be allowed to be appointed counsel. By Judgment Entry filed January

29, 2013, the motion was denied. On February 6, 2013, Grigsby filed a Motion to

Supplement the Record and attached a copy of the proposed court appointed attorney

fees showing that the fees, if granted, would have been $212.00. By Judgment Entry

dated February 25, 2013, the motion to supplement the record was granted.

                                    Assignments of Error

      {¶12} Grigsby raises three assignments of error,

      {¶13} “I.   BECAUSE     APPELLANT'S      REASONABLE        REQUEST      FOR    A

CONTINUANCE TO PREPARE FOR TRIAL AND TO CALL WITNESSES WAS

DENIED, APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR

TRIAL, A TRIAL BY JURY, TO CALL WITNESSES ON HIS OWN BEHALF, AND

OTHER SUCH RIGHTS.
Licking County, Case No. 13-CA-11                                                                       5


        {¶14} “II. BECAUSE APPELLANT WAS CHARGED WITH RECEIVING

STOLEN PROPERTY AND NOT THEFT, THE STATE FAILED TO PROVE ITS CASE

BEYOND A REASONABLE DOUBT.

        {¶15} “III. THE TRIAL COURT ERRED WHEN IT DENIED THE INDIGENT

APPELLANT APPOINTED COUNSEL.”

                                                        I.

        {¶16} In his first assignment of error, Grigsby argues that the trial court abused

its discretion when it denied his attorney’s request for a continuance made the morning

of trial.2

        {¶17} The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S.

CONST. amend. VI. This right “guarantees a defendant the right to be represented by

an otherwise qualified attorney whom that defendant can afford to hire, or who is willing

to represent the defendant even though he is without funds.” Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528

(1989). “A criminal defendant who desires and is financially able to retain his own

counsel ‘should be afforded a fair opportunity to secure counsel of his own choice.’”

Ibid. (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

        {¶18} In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964),

the Court considered the matter under a due process analysis. It said:

                The matter of continuance is traditionally within the discretion of the

        trial judge, and it is not every denial of a request for more time that


        2
          Grigsby is not alleging in the Assignment of Error the trial court erred in denying his previous
requests for a continuance.
Licking County, Case No. 13-CA-11                                                        6


       violates due process even if the party fails to offer evidence....

       Contrariwise, a myopic insistence upon expeditiousness in the face of a

       justifiable request for delay can render the right to defend with counsel an

       empty formality.... There are no mechanical tests for deciding when a

       denial of a continuance is so arbitrary as to violate due process. The

       answer must be found in the circumstances present in every case,

       particularly in the reasons presented to the trial judge at the time the

       request is denied....” (Emphasis added)

Id. at 589, 84 S.Ct. at 849.

       {¶19} In addition, the Supreme Court in United States v. Gonzalez–Lopez, 548

U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) explicitly upheld its previous

holding in Morris v. Slappy, 461 U.S. 1, 11–12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983),

where the Court “recognized a trial court's wide latitude in balancing the right to counsel

of choice ... against the demands of its calendar.” Gonzalez–Lopez, 548 U.S. at 152.

The trial court's difficult responsibility of assembling witnesses, lawyers and jurors for

trial “counsels against continuances except for compelling reasons.” Morris, 461 U.S. at

11.

       {¶20} On November 7, 2012, the court scheduled the trial date for December 14,

2012. On December 13, 2012, Grigsby asked for a continuance contending that he had

mailed his request for appointed counsel form to the court on December 3, 2012, but it

did not arrive. The court granted that continuance with the caveat that no further

continuances to obtain counsel would be granted. Trial was scheduled for January 8,

2013. On January 7, 2013, Grigsby again asked the court for a continuance. Grigsby
Licking County, Case No. 13-CA-11                                                         7


claimed that he “turned in” his request for appointed counsel form on January 2, 2013,

but it never showed up. The trial court denied Grigsby’s request.

       {¶21} Grigsby offered no explanation concerning his efforts to obtain counsel or

contact the trial court to obtain appointed counsel between December 13, 2011 and

January 7, 2013. Grigsby had acknowledged in writing that he had been advised of

where to obtain the forms needed to request counsel and for the need to do so

expeditiously. Grigsby was further advised that applications for appointed counsel made

on the day of trial are not looked upon favorably by the court. (Your Rights in Court, filed

November 13, 2012 at 4 “COURT APPOINTED ATTORNEY”).

       {¶22} In the landmark decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799(1963), the United States Supreme Court held an indigent defendant

was entitled to court appointed counsel. Subsequently, the High Court narrowed this

Right, holding “the Sixth and Fourteenth Amendments to the United States Constitution

require only that no indigent criminal defendant be sentenced to a term of imprisonment

unless the state has afforded him the right to assistance of appointed counsel in his

defense.” Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed. 2d 383(1979). Accord,

Nichols v. United States, 511 U.S. 738, 743 114 S.Ct. 1921, 1926(1994); State v.

Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501, 503(1989). (“This is not to say that

counsel is required in all instances. Indeed, in Scott, supra, the court essentially held

that unconcealed misdemeanor convictions are constitutionally valid if the offender is

not actually incarcerated.”).

       {¶23} Crim.R. 44 states:

              (B) Counsel in petty offenses
Licking County, Case No. 13-CA-11                                                         8

              Where a defendant charged with a petty offense is unable to obtain

       counsel, the court may assign counsel to represent him. When a

       defendant charged with a petty offense is unable to obtain counsel, no

       sentence of confinement may be imposed upon him, unless after being

       fully advised by the court, he knowingly, intelligently, and voluntarily

       waives assignment of counsel.” (Emphasis added)

       {¶24} The word “shall” is usually interpreted to make the provision in which it is

contained mandatory. Dorrian v. Scioto Conservancy District, 27 Ohio St. 2d 102, 107,

271 N.E. 2d 834(1971). In contrast, the use of the word “may” is generally construed to

make the provision in which it is contained optional, permissive, or discretionary. Id. The

words “shall” and “may” when used in statutes are not automatically interchangeable or

synonymous. Id. To give the “may” as used in a statute a meaning different from that

given in its ordinary usage, it must clearly appear that the Legislature intended that it be

so construed from a review of the statute itself. Id. at 107– 108, 271 N.E. 2d 834. In re:

McClanahan, 5th Dist. No. 2004AP010004, 2004–Ohio–4113 at ¶ 17.

       {¶25} Pursuant to Crim. R. 44(B) rule, the trial court has discretion whether to

appoint counsel where a defendant is charged with a petty offense. However, the trial

court could impose a term of imprisonment for a petty offense under only two

circumstances: (1) Grigsby was actually represented by counsel during his trial; or (2)

he decided to represent himself and properly waived his right to counsel.

       {¶26} In the case at bar, we note that counsel admits that he was retained by

Grigsby. (Appellant’s Brief at 1; 4; 11). Thus, this is not a case in which the trial court

forced the defendant to go to trial with an inadequately prepared attorney or no attorney
Licking County, Case No. 13-CA-11                                                         9


at all. Rather, in the case at bar Grigsby exercised his Sixth Amendment right by

independently retaining attorney Procter.

                                       A. Right to Jury Trial.

       {¶27} Grigsby contends that he was denied his right to a jury trial because the

trial court denied his request for a continuance.

       {¶28} The Sixth Amendment to the Constitution of the United States guarantees

a jury trial to defendants charged with “serious” offenses. Defendants charged with

“petty” offenses are not constitutionally entitled to a jury trial. Duncan v. Louisiana, 391

U.S. 145, 159, 161, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Generally, petty offenses are

those with a maximum penalty of up to six months imprisonment and a $500.00 fine.

See Baldwin v. New York, 399 U.S. 66, 71, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970);

Duncan v. Louisiana, 391 U.S. at 159, 88 S.Ct. 1444; District of Columbia v. Clawans,

300 U.S. 617, 626-628, 57 S.Ct. 660, 81 L.Ed. 843 (1937); Crim.R. 2(D). In

misdemeanor cases, the state does not violate a defendant's constitutional rights when

it conditions the right upon the filing of a written demand for a jury trial. Mentor v.

Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343(1967), at paragraph one of the syllabus.

       {¶29} In Cassidy v. Glossip, the Supreme Court held,

              A rule of a Common Pleas Court, providing that a party shall

       request a jury not later than the third day prior to the date of the

       commencement of the trial or shall be deemed to have waived a jury trial,

       is a procedural rule that does not deny a party his right to a jury trial or

       otherwise conflict with Section 5 of Article I of the Ohio Constitution.

12 Ohio St.2d 17, 231 N.E.2d 64(1967), paragraph four of the syllabus.
Licking County, Case No. 13-CA-11                                                        10


       {¶30} In the case at bar, Grigsby did not file a written demand for a jury trial.

Grigsby acknowledged in writing that he was advised by the court that he must file a

written demand for a jury trial no less than ten days before the date set for trial. See,

Your Rights in Court, filed November 13, 2012. Grigsby initialed that he understood he

must demand a jury trial in writing. (Id. at 4, “Not Guilty Plea, ¶2. Grigsby further signed

acknowledging that he understood his rights.

       {¶31} In the case at bar, Grigsby was represented by counsel. Counsel did not

file a written jury demand or orally request a jury trial on the morning of trial. Nor did

Grigsby or his counsel specify in his request for a continuance that he needed additional

time to allow him to file a written jury demand.

       {¶32} In these circumstances, the trial to the court without a jury was proper.

                                  B. Right to present a defense.

       {¶33} Grigsby next contends that the trial court refused to grant a continuance to

allow him to call witnesses in his defense.

       {¶34} Every criminal defendant has a constitutional right to present a meaningful

defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636(1986).

Ordinarily a reviewing court analyzes a denial of a continuance in terms of whether the

court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11

L.Ed.2d 921(1964). If, however, the denial of a continuance is directly linked to the

deprivation of a specific constitutional right, some courts analyze the denial in terms of

whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772(6th

Cir.1986). A defendant has an absolute right to prepare an adequate defense under the

Sixth Amendment of the United States Constitution and a right to due process under the
Licking County, Case No. 13-CA-11                                                     11

Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854(6th

Cir.2000). The United States Supreme Court has recognized that the right to offer the

testimony of witnesses and compel their attendance is constitutionally protected.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019(1967).

The Ohio Supreme Court recognized that the right to present a witness to establish a

defense is a fundamental element of due process of law. Lakewood v. Papadelis, 32

Ohio St.3d 1, 4–5, 511 N.E.2d 1138(1987). A trial court's failure to grant a continuance

to enable a defendant to exercise his constitutionally protected right to offer the

testimony of witnesses and compel their attendance may, in some circumstances,

constitute a denial of due process. Mackey v. Dutton, 217 F.3d 399, 408(6th Cir.2000);

Bennett v. Scroggy, supra, 793 F.2d at 774. See also, State v. Wheat, 5th Dist. No.

2003-CA-00057, 2004–Ohio–2088, ¶16.

      {¶35} Among the factors to be considered by the court in determining whether

the continuance was properly denied are: (1) the length of the requested delay, (2)

whether other continuances had been requested and granted, (3) the convenience or

inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was

for legitimate reasons or whether it was “dilatory, purposeful or contrived”, (5) whether

the defendant contributed to the circumstances giving rise to the request, (6) whether

denying the continuance will result in an identifiable prejudice to the defendant's case,

and (7) the complexity of the case. Powell v. Collins, 332 F.3d 376, 396(6th Cir.2003);

State v. Unger, 67 Ohio St.2d 65, 67–68, 423 N.E.2d 1078, 1080(1981); State v. Wheat,

supra at ¶ 17.
Licking County, Case No. 13-CA-11                                                       12

       {¶36} In Wheat, supra, the appellant argued that the trial court erred when it

failed to continue his trial to secure witnesses he had subpoenaed. This court found no

abuse of discretion because the request for a continuance did not demonstrate the

amount of time necessary to secure the attendance of the witnesses, or the nature of

their testimony. 2004–Ohio–2088 at ¶21. Citing State v. Brooks, 44 Ohio St.3d 185, 542

N.E.2d 636(1989), we held that because defense counsel failed to proffer what the

desired testimony of the absent witnesses would have been and how it was relevant to

the defense, we could not find prejudice from the denial of the motion to continue. Id. at

¶ 22–24, 542 N.E.2d 636.

       {¶37} “When the reason for a continuance is to secure the attendance of a

witness, ‘it is incumbent upon the moving party to show that such witnesses would have

given substantial favorable evidence and that they were available and willing to testify.’”

State v. Komadina, 9th Dist. No. 02CA008104, 2003–Ohio–1800, ¶32, quoting State v.

Mills, 5th Dist. No. 01–COA–01444, 2002–Ohio–5556. Because Grigsby’s counsel did

not make a timely proffer of any anticipated testimony, the trial court could not have

known how or why said testimony was vital to Grigsby's defense when it denied the

continuance. State v. Snowden, 49 Ohio App.2d 7, 17, 359 N.E.2d 87(1st Dist. 1976)

(not an abuse of discretion to deny continuance due to absence of purportedly “critical

defense witness” where no proffer made of witness' anticipated testimony at the time of

decision). The trial court was not told the name of the “witnesses” that Grigsby wished

to call, the nature of his or her testimony or the length of time it would take to produce

any witness. (T. at 45). Grigsby did testify that he wanted Brad to testify, but “he [Brad]

didn’t want anything to do with it.” (T. at 53).
Licking County, Case No. 13-CA-11                                                          13


       {¶38} Given that the trial court was never specifically advised as to the name of

the witnesses or the purported content of his or her testimony, we do not have anything

by way of evidence by which to demonstrate that Grigsby was prejudiced by the failure

to present testimony during his trial.

                                         C. Time to prepare.

       {¶39} Grigsby next argues that he was prejudiced by the trial court’s refusal to

grant his request for a continuance made the morning of trial because his attorney

needed more time to prepare for trial.

       {¶40} Grigsby created the circumstances giving rise to his need for a

continuance by his repeated attempts to continue the case prior to trial and his failure to

either retain counsel or submit the appropriate documents so that the court could

determine whether he was entitled to appointed counsel. The evidence was

uncomplicated, straightforward, and related to whether Grigsby traded his phone for

Weger’s. Grigsby has not claimed in his appeal that trial counsel was ineffective.

       {¶41} The record further shows that Grigsby made his third motion to continue

on the very date and time for trial. Thus, the other participants in the trial, including the

trial court and the various witnesses, would have been inconvenienced by any

continuance because they were already prepared to go forward. On November 7, 2011,

Grigsby was aware he was charged with a first-degree misdemeanor and that he

needed to request or retain counsel. Grigsby was dilatory in waiting to contact counsel

until the morning of the trial.

       {¶42} Grigsby has failed to demonstrated prejudice from the court's denial of his

motion to continue, and the court did not abuse its discretion in overruling the motion.
Licking County, Case No. 13-CA-11                                                         14


       {¶43} Accordingly, Grigsby’s first assignment of error is overruled in its entirety.

                                                 II.

       {¶44} In his second assignment of error, Grigsby contends that his conviction is

against the sufficiency and the weight of the evidence.

       {¶45} 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.

       {¶46} 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 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
Licking County, Case No. 13-CA-11                                                            15


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.

       {¶47} 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. * * *

               “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.”

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).
Licking County, Case No. 13-CA-11                                                      16


      {¶48} R.C. 2913.51 states, in part,

             (A) No person shall receive, retain, or dispose of property of

      another knowing or having reasonable cause to believe that the property

      has been obtained through commission of a theft offense.

      {¶49} Grigsby’s reliance upon State v. Kulig, 37 Ohio St. 2d 157, 309 N.E.2d

897 is misplaced. In Kulig, the prior law was that “circumstantial evidence relied upon to

prove an essential element of a crime must be irreconcilable with any reasonable theory

of an accused's innocence in order to support a finding of guilt.” This premise was

overruled in 1991 when the Court stated that circumstantial evidence and direct

evidence inherently possess the same probative value and therefore should be

subjected to the same standard of proof. State v. Jenks, 61 Ohio St.3d 259, 274, 574

N.E.2d 492(1991) superseded by State constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997).

      {¶50} In the case at bar, the owner of the phone, Weger, testified that he did not

give either the Grigsby or "Brad" permission to take the phone. A short time later,

Grigsby had the phone in question in his possession at Best Buy, attempting to obtain a

gift card. Grigsby testified that he had swapped phones, and therefore he had

permission to possess it.

      {¶51} If the State relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “‘such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.’” State v. Jenks,

61 Ohio St. 3d 259, 272, 574 N.E.2d 492(1991) at paragraph one of the syllabus.
Licking County, Case No. 13-CA-11                                                        17


“‘Circumstantial evidence and direct evidence inherently possess the same probative

value [.]’” Jenks, 61 Ohio St .3d at paragraph one of the syllabus.

       {¶52} Furthermore,

               “[s]ince   circumstantial    evidence   and   direct   evidence    are

       indistinguishable so far as the jury's fact-finding function is concerned, all

       that is required of the jury is that i[t] weigh all of the evidence, direct and

       circumstantial, against the standard of proof beyond a reasonable doubt’

       Jenks, 61 Ohio St. 3d at 272, 574 N.E. 2d 492. While inferences cannot

       be based on inferences, a number of conclusions can result from the

       same set of facts. State v. Lott (1990), 1 Ohio St.3d 160, 168, 555 N.E.2d

       293, citing Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St.

       329, 331, 130 N.E.2d 820. Moreover, a series of facts and circumstances

       can be employed by a jury as the basis for its ultimate conclusions in a

       case.

Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing Hurt v. Charles J. Rogers Transp. Co.

(1955), 164 Ohio St. 329, 331, 130 N.E.2d 820(1955).

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

conclude that a reasonable person could have found beyond a reasonable doubt that

Grigsby committed the crime of receiving stolen property. We hold, therefore, that the

state met its burden of production regarding each element of the crime of receiving

stolen property and, accordingly, there was sufficient evidence to support Grigsby's

conviction for receiving stolen property.
Licking County, Case No. 13-CA-11                                                         18


       {¶54} 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. 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 Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).

       {¶55} 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 State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). The judge neither lost his way nor created a miscarriage of justice in convicting

Grigsby of the charge.
Licking County, Case No. 13-CA-11                                                       19


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

Grigsby's conviction was not against the manifest weight of the evidence. To the

contrary, the judge appears to have fairly and impartially decided the matters before it.

The judge as a trier of fact can reach different conclusions concerning the credibility of

the testimony of Grigsby and Weger. This court will not disturb the judge's finding so

long as competent evidence was present to support it. State v. Walker, 55 Ohio St.2d

208, 378 N.E.2d 1049 (1978). The judge heard the witnesses, evaluated the evidence,

and was convinced of Grigsby's guilt.

      {¶57} 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.

      {¶58} Grigsby’s second assignment of error is overruled.

                                                 III.

      {¶59} In his third assignment of error, Grigsby argues he was denied his right to

appointed counsel.

      {¶60} In the case at bar, we note that counsel admits that he was retained by

Grigsby. (Appellant’s Brief at 1; 4; 11). Counsel further admits that he accepted

payment from Grigsby. (Appellant’ Brief at 4).

      {¶61} The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S.

CONST. amend. VI. This right “guarantees a defendant the right to be represented by

an otherwise qualified attorney whom that defendant can afford to hire, or who is willing

to represent the defendant even though he is without funds.” Caplin & Drysdale,
Licking County, Case No. 13-CA-11                                                       20

Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528

(1989). “A criminal defendant who desires and is financially able to retain his own

counsel ‘should be afforded a fair opportunity to secure counsel of his own choice.’”

Ibid. (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

      {¶62} As counsel did accept representation of Grigsby, and was paid by

Grigsby, we find that Grigsby’s rights have not been abridged. The same counsel

cannot be both “retained” and “appointed.”

      {¶63} Grigsby’s third assignment of error is overruled.

      {¶64} For the foregoing reasons, the judgment of the Licking County Municipal

Court, Licking County, Ohio is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. JOHN W. WISE

WSG:clw 0517
[Cite as State v. Grigsby, 2013-Ohio-2300.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ZACHARIAH GRIGSBY                                 :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 13-CA-11




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Licking County Municipal Court, Licking County, Ohio is affirmed.            Costs to

appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. JOHN W. WISE
