State v. Sturgeon , 2013 Ohio 1389 ( 2013 )


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  • [Cite as State v. Sturgeon, 
    2013-Ohio-1389
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    MARION COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 9-12-39
    v.
    MICHELLE STURGEON,                                        OPINION
    DEFENDANT-APPELLANT.
    Appeal from Marion Municipal Court
    Trial Court No. CRB113301
    Judgment Affirmed
    Date of Decision: April 8, 2013
    APPEARANCES:
    Jeff Ratliff for Appellant
    Steven E. Chaffin for Appellee
    Case No. 9-12-39
    SHAW, J.
    {¶1} Defendant-appellant, Michelle L. Sturgeon (“Sturgeon”), appeals the
    June 20, 2012 judgment of the Marion Municipal Court journalizing her
    conviction by a jury for theft.
    {¶2} On November 18, 2011, Heather Todd, an “Asset Protection
    Associate” with Wal-Mart security, was reviewing the security cameras when she
    noticed Sturgeon exhibiting suspicious behavior in the self-checkout line. Heather
    observed Sturgeon had three belts in her possession; one belt had a clearance
    sticker on it and the other two belts did not. Heather saw Sturgeon scan the
    clearance belt twice and set it aside. She then observed Sturgeon place the two
    regular-priced belts in a shopping bag. Heather decided to walk onto the floor to
    get a closer view of Sturgeon’s activities.
    {¶3} There, Heather observed Sturgeon’s mother standing next to Sturgeon
    in the self-checkout line with a cart full of bagged groceries. Sturgeon had a
    second cart in her possession which contained several unbagged items. Heather
    observed Sturgeon scan a few of the items and complete the transaction. However,
    Heather noticed that Sturgeon did not scan several items in the cart, including an
    eight-pack of Mtn Dew, a 24-pack of water, a large container of Hawaiian Punch,
    a turkey, a bottle of Excedrin, Dulcolax tablets, and a small container of ground
    sage. Heather watched Sturgeon pay cash for the scanned items and place the
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    items into bags. The unscanned items remained in Sturgeon’s cart and were not
    bagged. Heather observed Sturgeon take the unscanned eight-pack of Mtn. Dew
    and place it in the other cart.
    {¶4} When the two women pushed the carts past the point of sale, Heather
    and another Wal-Mart security associate confronted Sturgeon and her mother and
    asked to see their receipts, which both women produced. After reviewing the
    receipts, it became apparent to Heather that the bagged items in the second cart,
    with the exception of the unscanned Mtn. Dew, had been purchased in a prior
    transaction in a cashier’s checkout line. However, the unbagged items Heather
    observed in Sturgeon’s cart in the self-checkout line were not listed on the
    receipts. Heather also discovered that the clearance belt Sturgeon scanned twice
    rang up as $3.00; however the belts she placed into her shopping bag rang up as
    $10.00 apiece.
    {¶5} Sturgeon and her mother were taken to the Wal-Mart security office
    where law enforcement was notified. Heather determined that the value of the
    unscanned items in Sturgeon’s cart was $34.47, and that the difference between
    the values of the clearance belt that Sturgeon scanned twice and the ones she
    placed in her shopping bag was $14.00.
    {¶6} Sturgeon was subsequently charged with theft, in violation of R.C.
    2913.02, and pleaded not guilty to the charge.
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    {¶7} On June 20, 2012, a jury trial was held. Several witnesses testified for
    the prosecution, including Heather, a second Wal-Mart Asset Protection Associate,
    and the Wal-Mart cashier who rang up the bagged items contained in the other
    cart.   Sturgeon and her mother testified in Sturgeon’s defense.           Sturgeon
    maintained that the entire incident was an accident and that she mistakenly
    believed the items in her cart had been purchased in the prior transaction in the
    cashier’s checkout line. Sturgeon also maintained that the belts she placed into a
    shopping bag were on clearance, but did not have a clearance tag. After hearing
    the evidence, the jury returned a verdict of guilty.
    {¶8} The trial court sentenced Sturgeon to serve 90 days in jail and to pay a
    fine of $400.00, however, the trial court suspended 80 days of the jail time and
    $250.00 of the fine. Sturgeon was given the option of serving 33 days of house
    arrest instead of the jail time. The trial court also ordered Sturgeon to stay away
    from all Wal-Mart Stores.
    {¶9} Sturgeon now appeals, asserting the following assignments of error.
    ASSIGNMENT OF ERROR NO. I
    THE TRIAL COURT ERRED WHEN IT STARTED
    APPELLANT’S JURY TRIAL IN VIOLATION OF
    CRIMINAL RULE 43(A) AND R.C. 2945.12, WHEN IT DID
    NOT ADDRESS APPELLANT ON THE RECORD, AND
    WHEN IT DID NOT OBTAIN A WRITTEN WAIVER IN
    VIOLATION OF APPELLANT’S CONSTITUTIONAL
    RIGHTS.
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    ASSIGNMENT OF ERROR NO. II
    APPELLANT’S COUNSEL WAS INEFFECTIVE WHEN SHE
    ALLOWED THE APPELLANT’S JURY TRIAL TO START
    WITHOUT APPELLANT’S PRESENCE, DID NOT OBTAIN
    A WRITTEN WAIVER FROM APPELLANT, AND DID NOT
    SEQUESTER THE PROPOSED JURORS REGARDING
    APPELLANT’S ABSENCE.
    ASSIGNMENT OF ERROR NO. III
    THE RECORD CONTAINED INSUFFICIENT EVIDENCE
    TO SUPPORT A CONVICTION FOR THEFT UNDER OHIO
    REVISED CODE SECTION 2913.02.
    ASSIGNMENT OF ERROR NO. IV
    THE CONVICTION FOR THEFT UNDER OHIO REVISED
    CODE SECTION 2913.02 WAS CONTRARY TO THE
    MANIFEST WEIGHT OF [SIC] EVIDENCE.
    First Assignment of Error
    {¶10} In her first assignment of error, Sturgeon asserts that the trial court
    erred when it began voir dire prior to her being present in the courtroom and when
    it did so without obtaining a valid waiver of her presence. Sturgeon claims that
    she suffered a violation of her constitutional and statutory right to be present at all
    stages during the trial proceedings.
    {¶11} At the outset, we note that the record indicates Sturgeon’s jury trial
    was scheduled to commence at 9:30 a.m. on July 20, 2012. (Doc Nos. 34, 35). As
    of 9:55 a.m., Sturgeon had yet to appear in the courtroom. The following are
    excerpts from the trial transcript regarding the circumstances surrounding the trial
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    court’s decision to commence voir dire in Sturgeon’s absence and Sturgeon’s trial
    counsel’s handling of the matter. This discussion was held outside the presence of
    the jury.
    TRIAL COURT: It’s obvious that the defendant is not here,
    and so I want to know if it’s okay to move forward without her.
    DEFENSE COUNSEL: Obviously, I would prefer that she be
    here. However, I also don’t want the Court calling attention to
    the fact that she’s not here in front of the jury. Since that is my
    alternative, I would—if there’s the admonishment of it being in
    front of the jury, certainly I would rather go forward with the
    voir dire.
    TRIAL COURT: Okay.
    PROSECUTOR: Well, she’s—it’s obvious the jury can see she’s
    not here, so I don’t think she’s going to be concerned with that.
    DEFENSE COUNSEL: Well, I understand that but—
    PROSECUTOR: We’re ready to go forward.
    DEFENSE COUNSEL:—we don’t want to be—I don’t want her
    admonished or anything.
    PROSECUTOR: I don’t want to inconvenience this jury any
    more. Let’s move forward.
    DEFENSE COUNSEL: Okay.
    TRIAL COURT: Okay. I won’t say anything.
    (Tr. Trans. at 5-6)
    {¶12} The trial transcript indicates that the trial court then began its
    introductory instructions to the jury prior to commencing voir dire.      Shortly
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    thereafter, the record indicates that Sturgeon appeared in the courtroom when one
    of the jurors states on the record that she recognizes Sturgeon.
    {¶13} After the jury is selected, Sturgeon’s trial counsel states the
    following on the record outside the presence of the jury.
    DEFENSE COUNSEL:             I do want to put something on the
    record, though—
    TRIAL COURT: Okay.
    DEFENSE COUNSEL:—if we could. For the record, my client
    was not present when you started the instructions and we began
    here today.
    TRIAL COURT: Uh-huh.
    DEFENSE COUNSEL: However, you had just completed the
    instructions—[the Prosecutor] had just gotten up. I don’t think
    he’d even gotten more than one or two sentences out when she
    appeared.
    TRIAL COURT: That’s correct.
    DEFENSE COUNSEL: And so I just wanted to make sure for
    the record that it was clear that she was here for all of the voir
    dire. And [Sturgeon], you were okay with me—
    STURGEON: Yes.
    DEFENSE COUNSEL:—going ahead with that? Okay.
    TRIAL COURT: Okay. Great. I actually made a note in my—
    on my notes when she came in, so—
    DEFENSE COUNSEL: Okay. Thank you.
    (Tr. Trans. at 76-77).
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    Case No. 9-12-39
    {¶14} Initially, we note that trial counsel did not object to the trial court
    commencing the trial proceedings without Sturgeon present. In the absence of
    objected error, we review this matter under a plain error analysis. Plain error does
    not exist unless it can be said that, but for the error, the outcome of the trial clearly
    would have been otherwise. State v. Long, 
    53 Ohio St.2d 91
     (1978), paragraph
    two of the syllabus. In order to have plain error under Crim.R. 52(B), there must
    be an error, the error must be an “obvious” defect in the trial proceedings, and the
    error must have affected “substantial rights.” State v. Barnes, 
    94 Ohio St.3d 21
    ,
    27, 2002–Ohio–68.
    {¶15} It remains axiomatic that a criminal defendant has a fundamental
    right to be present at all critical stages of his criminal trial. See Section 10, Article
    I of the Ohio Constitution; Crim.R. 43(A) (stating “the defendant must be
    physically present at every stage of the criminal proceeding and trial[.]”). “An
    accused’s absence, however, does not necessarily result in prejudicial or
    constitutional error. ‘[T]he presence of a defendant is a condition of due process to
    the extent that a fair and just hearing would be thwarted by his absence, and to that
    extent only.’ ” State v. Davis, 
    116 Ohio St.3d 404
    , 
    2008-Ohio-2
    , ¶ 90, quoting,
    Snyder v. Massachusetts, 
    291 U.S. 97
    , 107–108, 
    54 S.Ct. 330
    , (1934), overruled
    on other grounds, Malloy v. Hogan, 
    378 U.S. 1
    , 2, 
    84 S.Ct. 1489
    , (1964).
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    Case No. 9-12-39
    {¶16} Furthermore, even where compliance with the notice and waiver
    rules of Crim.R. 43(A)(2) and (3) is not found in the record, a defendant’s absence
    may be improper and yet not rise to the level of plain error where the defendant
    suffers no prejudice. State v. Warren, 10th Dist. No. 10AP–376, 
    2010-Ohio-5718
    ,
    ¶ 7, citing State v. Williams, 
    6 Ohio St.3d 281
    , 285–87 (1983).
    {¶17} Here, the record clearly indicates that Sturgeon was present for all of
    the trial court proceedings but the trial court’s introductory instructions to the jury
    and one or two sentences spoken by the prosecutor at the beginning of voir dire.
    While it is generally error for a trial court to commence the trial proceedings in the
    defendant’s absence without first obtaining a valid waiver, we find nothing in the
    record to indicate that Sturgeon suffered actual prejudice by not being present for
    the initial minutes of the trial court proceedings. Moreover, the record establishes
    that Sturgeon acquiesced to her trial counsel’s tactical decision to permit the trial
    court to proceed in her absence. Notably, it was also well within the trial court’s
    inherent authority to issue a bench warrant for Sturgeon’s arrest once it was
    apparent that she failed to appear to court on time.
    {¶18} For all of these reasons, we conclude that Sturgeon failed to
    demonstrate the trial court committed reversible error in this instance. Sturgeon’s
    first assignment of error is overruled.
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    Case No. 9-12-39
    Second Assignment of Error
    {¶19} In her second assignment of error, Sturgeon asserts that her trial
    counsel was ineffective for failing to object to the trial court’s commencement of
    voir dire in her absence, for not obtaining a valid waiver of her presence, and for
    failing to question proposed jurors regarding Sturgeon’s absence during the
    commencement of voir dire.
    {¶20} At the outset, we note that attorneys licensed by the State of Ohio are
    presumed to provide competent representation.        State v. Hoffman, 
    129 Ohio App.3d 407
     (1998). To prevail on a claim of ineffective assistance of counsel, a
    defendant must prove that trial counsel’s performance fell below objective
    standards of reasonable representation and that the defendant was prejudiced as a
    result. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); State v. Bradley, 
    42 Ohio St.3d 136
    , paragraph two of the syllabus (1989). This requires showing that
    counsel made errors so serious that counsel was not functioning as the “counsel”
    guaranteed the defendant by the Sixth Amendment. Strickland, 
    466 U.S. at 687
    .
    {¶21} Also, in order to show that a defendant has been prejudiced by
    counsel’s deficient performance, the defendant must prove that there exists a
    reasonable probability that, but for counsel’s errors, the outcome at trial or in his
    legal proceedings would have been different. Bradley, 42 Ohio St.3d at paragraph
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    three of the syllabus.    “Reasonable probability” is a probability sufficient to
    undermine confidence in the result. Id. at 142.
    {¶22} When considering a claim of ineffective assistance of counsel, the
    court “must indulge a strong presumption that counsel’s conduct falls within the
    wide range of reasonable professional assistance.” Strickland, 
    466 U.S. at 689
    .
    Accordingly, courts are to afford a high level of deference to the performance of
    trial counsel. Bradley, 42 Ohio St.3d at 142. Tactical or strategic trial decisions,
    even if unsuccessful, do not generally constitute ineffective assistance. State v.
    Carter, 
    72 Ohio St.3d 545
    , 558, 1995–Ohio–104. Rather, the errors complained of
    must amount to a substantial violation of counsel’s essential duties to his client.
    See Bradley at 141–142.
    {¶23} The trial transcript excerpts discussed in our resolution of the first
    assignment of error demonstrate that it was trial counsel’s tactical trial decision to
    avoid the trial court explicitly bringing Sturgeon’s absence to the jury’s attention.
    Trial counsel specifically requested that the trial court not admonish Sturgeon in
    front of the jury when she appeared late to court. Moreover, trial counsel noted on
    the record when Sturgeon actually appeared, and documented that the amount of
    court proceedings which occurred in Sturgeon’s absence was minimal.
    {¶24} In sum, Surgeon simply fails to meet her burden in showing that
    there exists a reasonable probability that, but for the alleged errors of her trial
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    counsel, the outcome at trial would have been different.       Therefore, we find
    Sturgeon’s ineffective assistance of counsel claim to be meritless and the second
    assignment of error is overruled.
    Third and Fourth Assignments of Error
    {¶25} In her third and fourth assignments of error, Sturgeon claims that the
    prosecution failed to present sufficient evidence to establish that she knowingly
    obtained or exerted control over the items in her cart without paying for them.
    Additionally, Sturgeon argues that the prosecution failed to present sufficient
    evidence of the value of the belts which were alleged to be regular price and not
    on clearance. Sturgeon also maintains that the jury’s verdict convicting her of
    theft was against the manifest weight of the evidence because she testified at trial
    that she believed the items in question were already paid for and the belts were on
    clearance, demonstrating that the entire incident was a misunderstanding.
    {¶26} When reviewing the sufficiency of the evidence, “[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.” State v. Jenks, 
    61 Ohio St.3d 259
    (1981), paragraph two of the syllabus.
    {¶27} In determining whether a conviction is against the manifest weight of
    the evidence, a reviewing court must examine the entire record, “‘[weigh] the
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    evidence and all reasonable inferences, consider the credibility of witnesses and
    [determine] whether in resolving conflicts in the evidence, the [trier of fact]
    clearly lost its way and created such a manifest miscarriage of justice that the
    conviction must be reversed and a new trial ordered .’” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387 (1997), 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, 
    227 N.E.2d 212
     (1967).
    {¶28} Sturgeon was convicted of theft, in violation of R.C. 2913.02, which
    states in pertinent part:
    (A) No person, with purpose to deprive the owner of property
    or services, shall knowingly obtain or exert control over either
    the property or services in any of the following ways:
    (1) Without the consent of the owner or person authorized to
    give consent;
    {¶29} The crux of Sturgeon’s argument on appeal is that the prosecution
    failed to prove that she acted “knowingly.” Notably, a “person acts knowingly,
    regardless of his purpose, when he is aware that his conduct will probably cause a
    certain result or will probably be of a certain nature.” R.C. 2901.22(B).
    {¶30} The following testimony was presented at trial.
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    Case No. 9-12-39
    {¶31} Rhonda Houseworth, a cashier at Wal-Mart testified for the
    prosecution. Rhonda testified that Sturgeon arrived at her register with a cart
    “completely full” of groceries. (Tr. Trans. at 178). Rhonda testified that during
    the transaction Sturgeon left to get another cart. Rhonda recalled Sturgeon being
    focused on getting through the checkout line, and that she did not appear to be
    confused and was cautious to make sure all the items were scanned. Rhonda
    remembered Sturgeon assisting her with the transaction by lifting up some of the
    larger items from the cart for her to scan. Rhonda recalled that Sturgeon paid for
    the items with a food stamp card. Rhonda testified that Sturgeon’s cart was empty
    after the transaction was complete.
    {¶32} Rhonda also testified that Sturgeon’s mother was pushing another
    cart behind Sturgeon which contained a few items. Rhonda specifically recalled
    seeing the Turkey, the 24-pack of water, and other items in this second cart.
    Rhonda testified that she did not ring-up any of the items in the second cart
    because Sturgeon’s mother turned the cart around and did not go through the
    checkout line. Rhonda recalled Sturgeon and her mother walking toward the
    jewelry counter after Sturgeon paid for the items in the first cart.
    {¶33} The prosecution also presented the testimony of Heather Todd, a
    Wal-Mart “Asset Protection Associate.” Heather narrated for the jury her initial
    observations of Sturgeon’s suspicious behavior at the self-checkout line using
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    Case No. 9-12-39
    footage from one of Wal-Mart’s security cameras. The footage depicts Sturgeon
    holding three belts above the self-checkout scanner; a pink clearance-priced belt
    and two regular-priced belts, one silver and one black. Sturgeon is seen scanning
    the pink clearance belt once, placing it back into the cart and then placing one of
    the regular-priced belts in the bagging area. The footage then depicts Sturgeon
    again taking the pink clearance-priced belt from the cart, scanning it a second
    time, and then placing the other regular-priced belt in the bagging area. Near the
    end of the transaction, Sturgeon is seen placing the two regular-priced belts into a
    bag.
    {¶34} Heather testified that eventually Sturgeon gave the clearance-priced
    belt to the clerk at the self-checkout podium. Heather testified that the price of the
    clearance belt was $3.00, and the price of the regular-priced belts was $10.00
    each. Heather authenticated a receipt which documented value of each belt. This
    receipt was admitted as an exhibit by the prosecution at trial.
    {¶35} Heather testified that when she walked onto the floor to the self-
    checkout line, she observed Sturgeon standing next to a cart containing several
    items that were not bagged.      Heather also recalled seeing Sturgeon’s mother
    standing near another cart loaded with bagged items.              Heather noticed that
    Sturgeon did not show any signs of confusion when she operated the self-checkout
    register.
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    Case No. 9-12-39
    {¶36} As Heather continued to observe Sturgeon, she watched Sturgeon
    scan a few more items, bag the items, and complete the transaction by paying
    cash. However, Heather noticed that Sturgeon did not scan several items in the
    cart. Heather observed Sturgeon move one of the unscanned items from her cart
    to the other cart near her mother. She also noticed Sturgeon attempt to hide some
    of the smaller items in the cart between her purse and a roaster pan she had
    purchased.
    {¶37} Heather testified that once Sturgeon passed the point of sale, she and
    another Asset Protection Associate, John Maddox, confronted Sturgeon and her
    mother, reviewed their receipts, and discovered that the items in question had not
    been purchased. Heather testified that the total value of the items not scanned was
    $34.47. Heather authenticated a receipt which documented the value of the items
    and this receipt was admitted as an exhibit by the prosecution at trial.
    {¶38} Heather’s testimony was corroborated by the testimony of John
    Maddox, who is also an Asset Protection Associate at Wal-Mart. John testified
    that he was in the security office with Heather when she asked him to review the
    security camera footage of Sturgeon in the self-checkout line.         John recalled
    Sturgeon’s suspicious behavior of “under-ringing” the belts. (Tr. Trans. 164).
    John testified that he joined Heather on the floor and observed Sturgeon attempt to
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    Case No. 9-12-39
    leave the store without paying for some items.            John assisted Heather in
    confronting Sturgeon and her mother and detaining them for further investigation.
    {¶39} In her defense, Sturgeon tried to establish through her own testimony
    and the testimony of her mother that Sturgeon did not intend to take the items in
    the cart without paying for them. Collectively, Sturgeon and her mother testified
    that the two carts were used to separate the “taxable” and “non-taxable” items for
    purposes of using the food stamp card and that they both believed the items in
    dispute had been purchased in the first transaction through Rhonda’s checkout
    line. The defense also tried to establish that Sturgeon was an easily-distracted
    shopaholic who lost track of which items had been purchased.
    {¶40} As for the belts, Sturgeon maintained that she selected all three belts
    from the clearance area. She explained that there were several belts of the same
    style in the clearance area with clearance tags, but the ones in her size did not have
    a clearance tag. Sturgeon claimed that she grabbed a belt with a clearance tag that
    was not her size so she could scan it for the only two belts in her size that did not
    have the clearance tags. Sturgeon testified that the clerk at the self-checkout
    podium told her to scan the belts this way.
    {¶41} Based on the foregoing testimony, we believe that the prosecution
    presented sufficient evidence establishing all the elements of theft that, if believed,
    would convince a jury of Sturgeon’s guilt beyond a reasonable doubt.
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    Case No. 9-12-39
    Furthermore, we emphasize that the weight to be given to the evidence and the
    credibility of witnesses are primarily reserved for the trier of fact.       State v.
    DeHass, 
    10 Ohio St.2d 230
     (1967), paragraph one of the syllabus; see also State v.
    Awan, 
    22 Ohio St.3d 120
    , 123 (1986) (stating that “[t]he 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”).
    {¶42} Here, the jury chose to believe the testimony of the prosecution’s
    witnesses over the testimony of Sturgeon and her mother. Because the jury was in
    the best position to weigh the credibility of the testimony, we find that the jury’s
    verdict was not against the manifest weight of the evidence.            Accordingly,
    Sturgeon’s third and fourth assignments of error are overruled.
    {¶43} For all these reasons the judgment and sentence of the Marion
    Municipal Court is affirmed.
    Judgment Affirmed
    PRESTON, P.J. and WILLAMOWSKI, J., concur.
    /jlr
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Document Info

Docket Number: 9-12-39

Citation Numbers: 2013 Ohio 1389

Judges: Shaw

Filed Date: 4/8/2013

Precedential Status: Precedential

Modified Date: 3/3/2016