State v. Thompson , 2020 Ohio 5257 ( 2020 )

[Cite as State v. Thompson, 2020-Ohio-5257.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109110
v. :
MICHAEL THOMPSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-633180-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian D. Kraft and Mary Weston, Assistant
Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Aaron T. Baker and Francis Cavallo, Assistant Public
Defenders, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Michael Thompson (“appellant”) brings the
instant appeal arguing that the trial court erred by admitting evidence of prior bad
acts under Evid.R. 404(B) and further that the trial court’s decision was not
supported by sufficient evidence and was against the manifest weight of the
evidence. After a thorough review of the record and law, this court affirms the
judgment of the trial court.
I. Factual and Procedural History
The instant matter arose after appellant contacted the Cleveland Police
Department on August 20, 2018. Members of the Cleveland Police Department
responded to a call for unknown trouble and went to appellant’s residence at 1802
E. 13th Street, Cleveland, Ohio. Appellant came outside of his apartment and spoke
with officers, at which time appellant stated that he wanted to confess to a homicide,
saying that he could no longer live with himself.
Appellant told the officers that he had killed a woman twenty years
before and buried her on Train Avenue in Cleveland, Ohio. Following further
discussion, officers transported appellant to the Homicide Unit of the Cleveland
Police Department, where he was interviewed by Detectives David Shapiro and Tom
Lynch. Regarding the murder, appellant stated that the victim was an African-
American prostitute that he had picked up on Fulton Avenue and took her back to
his Cloud Avenue home where they engaged in sexual relations.
Appellant asserted that the two argued about payment and that the
victim stated that she was going to make a false allegation of rape. Appellant
confessed that this made him upset and that he grabbed a knife and stabbed the
victim in the back of the head. He said that he then wrapped her in plastic bags and
transported her body to the intersection of Train Avenue and Richner, where he
buried her in a shallow grave.
Appellant sketched a map for the officers depicting where the victim’s
body was located. After the interview, the detectives took appellant to the location
where he stated that he had buried the victim. Appellant was subsequently released
while law enforcement investigated his claims. Because appellant suffered from
chronic alcoholism, he was released to Lutheran Hospital.
The detectives, along with the FBI, arranged to excavate the area where
appellant indicated the victim’s body was buried. On September 24, 2018, members
of the Cleveland Police Department and the FBI were present when a body was
recovered in the area where appellant indicated that he had buried the victim. The
bones that were recovered were wrapped in bags and then in a sleeping bag. A
necktie was observed knotted and believed to be around the victim’s neck. Further,
an electrical cord appeared to be wrapped around the victim’s arms, a rope was
wrapped around the victim’s legs, and her wrists were bound.
The victim’s remains were sent to the Cuyahoga County Medical
Examiner’s Office, where an autopsy was performed along with DNA testing to
identify the remains.
Appellant was arrested on September 27, 2018, and transported to the
homicide unit for additional questioning. The officer asked appellant about the
binding found with the remains, but appellant denied any binding. Appellant was
also questioned about the sleeping bag located with the remains, but he denied
wrapping the victim in a sleeping bag. Despite these denials, appellant maintained
that he was the person responsible for the homicide.
Law enforcement investigated the circumstances surrounding the
victim’s death and learned that the recovered remains belonged to an African-
American female named D.G., who had last been seen alive in the summer months
of 1996. At that time, D.G. had been residing with her boyfriend and daughter,
Robin, in Lakewood.
D.G.’s daughter, Darnita Pollard, testified about her mother’s
disappearance and about her mother’s struggles with drug use and history of
prostitution. Ms. Pollard was 21 years old when her mother disappeared. Because
her mother had previously disappeared for extended periods, at times because she
was in jail, Ms. Pollard waited approximately seven months to file a missing person’s
report. In 2009, during the investigation of Cleveland serial killer Anthony Sowell,
Ms. Pollard and her sister Robin had provided DNA samples to the Medical
Examiner’s Office, who later compared these samples to identify D.G. from the
skeletal remains.
Appellant was indicted on charges of aggravated murder (prior
calculation and design), in violation of R.C. 2903.01(A), aggravated murder (during
commission of kidnapping), in violation of R.C. 2903.01(B), and kidnapping, in
violation of R.C. 2905.01(A)(3). During the pendency of this case, appellant’s
counsel requested that appellant be referred for a competency evaluation. The trial
court granted the request, and appellant was evaluated and ultimately found
competent to stand trial.
Appellant waived his right to a jury and elected to proceed with a
bench trial. Prior to trial, the state had filed a motion to use evidence of prior bad
acts under Evid.R. 404(B) relating to incidents involving appellant and two other
African-American females that occurred in 1989 and 1995. The trial court heard
arguments on the motion and ruled that the evidence would be permitted within the
scope of Evid.R. 404(B).
At trial, Dr. Felo of the Cuyahoga County Medical Examiner’s Office
testified that D.G. had a stab wound to the right temple region of her skull, which
was deep enough to penetrate her brain and was a fatal wound. Dr. Felo opined that
the weapon used was a knife, wide screwdriver, or some other edged-type metal. Dr.
Felo further testified that D.G. also had a stab wound to her right shoulder area,
which was nonfatal. In addition, there was a superficial injury to the left side of the
victim’s skull, but Dr. Felo was unable to determine if this wound was related to the
victim’s death or was a prior injury. D.G.’s manner of death was ultimately ruled a
homicide.
The state presented Evid.R. 404(B) evidence relating to incidents with
appellant and two separate women, one in 1989 and one in 1995. With regard to the
1989 incident, retired Cleveland Police Department Officer Dale Moran testified that
appellant approached an African-American female, T.H., who was alone on the
street. Appellant drove her to his home, where he tied her up with shoelaces. T.H.
subsequently escaped and went to the hospital, where her clothes were collected.
T.H. showed police appellant’s home as the place she was attacked.
Police knocked on the door of the residence, and appellant answered. Officers
searched for the shoelaces that the victim stated were used in the crime, but did not
locate them. They collected a gun and a knife from appellant’s home. T.H. identified
appellant as her attacker.
Officer Moran testified as to what appellant told him about the
incident. Appellant stated T.H. was a prostitute, and after he had sexual relations
with her, the two argued about price. Appellant claimed that T.H. had threatened
to call the police and report that he raped her, which angered him, so he tied her up
and attacked her. Appellant then stated that he went into his bedroom, grabbed his
gun, came out, and hit her in the head with the gun. He then admitted that he tied
T.H. up at that point and drove her back downtown to a parking lot and released
her. He stated that he cut the strings and threw them out the window when he was
driving home.
With regard to the 1995 incident, the court heard testimony from
Cleveland Police Officer Maria Matos, Dr. Elise Brown of MetroHealth, BCI analyst
Emily Feldenkris, Prosecutor’s Office Investigator Nicole Disanto, and a neighbor of
the victim, Alfred Feliciano.
On September 17, 1995, E.D., an African-American female, went to the
MetroHealth emergency department. She stated that a man offered her a ride and
took her to his house, where he pulled a knife on her. He forced her to undress,
taped her eyes and mouth shut, taped her wrists and legs together, and sexually
assaulted her. E.D. was able to escape and run to a neighbor, who called 911. The
neighbor, Mr. Feliciano, testified that he observed E.D. running toward him,
screaming for help, completely nude with her wrists bound.
Police responded to Mr. Feliciano’s residence and spoke with him, the
victim, and another individual. Officer Matos took a report from E.D., and then
went to appellant’s residence. The police knocked on appellant’s door, but there was
no answer. They observed the vehicle that E.D. had described sitting in the driveway
of appellant’s residence and towed it as evidence. They also collected gray duct tape,
a shoelace, a knife, and a sock.
E.D. was then transported to the hospital. Dr. Brown testified that
healthcare providers observed welts on E.D.’s wrists and legs and that adhesive
remained on her body where the tape had been. A sexual assault kit was collected
at the hospital.
Investigator Nicole Disanto collected appellant’s DNA for comparison
to the sexual assault kit. BCI analyst Emily Feldenkris testified that appellant’s DNA
was found on E.D.’s vaginal and anal areas and in pubic hair combings.
At the conclusion of the case, appellant’s counsel moved for dismissal
of the charges, under Crim.R. 29. The trial court dismissed the element of “prior
calculation and design” from Count 1, but allowed the remainder of the charge,
which effectively reduced the charge from aggravated murder to murder. The
motion was denied as to the remainder of the counts.
The trial court found appellant guilty of murder, aggravated murder,
and kidnapping. The court later sentenced appellant to an aggregate term of life in
prison with a chance of parole after 20 years.
Appellant now appeals, assigning three errors for our review:
I. The trial court erred in admitting improper character and prior bad
acts evidence under Evid.R. 404(B), violating appellant’s right to a fair
trial under the Fifth, Sixth, and Fourteenth Amendments to the U.S.
Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
II. There was insufficient evidence produced at trial to support a
finding of guilt.
III. The trial court erred by finding appellant guilty against the
manifest weight of the evidence.
II. Law and Analysis
A. Evid.R. 404(B)
In his first assignment of error, appellant argues that the trial court
erred by unlawfully admitting into evidence testimony and exhibits of prior bad acts.
The evidence at issue involved two separate incidents against African-American
females who were both bound and attacked.
We review a trial court’s evidentiary rulings for an abuse of discretion.
In re J.P., 8th Dist. Cuyahoga No. 81486, 2003-Ohio-3522, ¶ 24. A trial court abuses
its discretion when its decision is unreasonable, arbitrary, or unconscionable. State
v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34; Blakemore
v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts
“is not admissible to prove the character of a person in order to show action in
conformity therewith” but may be admissible to show “proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or the absence of mistake or
accident.” Similarly, R.C. 2945.59 permits the admission of other acts evidence
tending to show a defendant’s “motive or intent, the absence of mistake or accident
on his part, or the defendant’s scheme, plan, or system in doing the act in question.”
The Supreme Court of Ohio has set forth the following three-step
analysis for determining whether other acts evidence is admissible:
The first step is to consider whether the other acts evidence is relevant
to making any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the
accused in order to show activity in conformity therewith or whether
the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step is to consider whether
the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice. See Evid.R. 403.
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.
Appellant argues that the evidence was not relevant because his
identity as the perpetrator was not in question and that the other acts have nothing
to do with the crimes charged in the present matter. Appellant argues that any
evidence of binding from the prior cases is not relevant to this case because, due to
the decomposed condition of D.G.’s remains, it was not possible to tell if the ropes
had been used around her body.
Moreover, appellant argues that there are not enough similarities
between the current case and the prior cases to demonstrate any kind of plan or
scheme. Finally, appellant contends that the probative value of the other acts
evidence was substantially outweighed by the danger of unfair prejudice.
The state asserts that the evidence of the prior attacks was relevant
and was introduced for a proper purpose under Evid.R. 404(B), to wit: to
demonstrate appellant’s intent, modus operandi, preparation, and plan to physically
attack and bind D.G. The state argues that the facts of the prior cases are remarkably
similar to the facts of the case sub judice, in that the other acts evidence tends to
prove appellant’s modus operandi of bringing lone females to his house, binding
them, and assaulting them. The state maintains that any prejudicial effect of
admission of the evidence outweighs its probative value.
The use of other acts evidence to demonstrate a plan or scheme has
recently been addressed by the Supreme Court of Ohio in State v. Hartman, Slip
Opinion No. 2020-Ohio-4440. The Hartman court discussed the admission of
other acts evidence and preclusion of improper character evidence, stating:
Courts have long struggled with differentiating between the two types
of evidence. This is in large part because “other-act evidence is usually
capable of being used for multiple purposes, one of which is
propensity.” United States v. Gomez, 763 F.3d 845, 855 (7th Cir.2014)
(en banc) (applying Fed.R.Evid. 404(b), which is substantively
analogous to Ohio’s Evid.R. 404(B)). For that reason, it is “not enough
for the proponent of the other-act evidence simply to point to a purpose
in the ‘permitted’ list and assert that the other-act evidence is relevant
to it.” Id. at 856. The rule is concerned not only with the ultimate
justification for admitting the evidence but also “with the chain of
reasoning that supports the non-propensity purpose for admitting the
evidence.” Id. To properly apply the rule, then, courts must scrutinize
the proponent’s logic to determine exactly how the evidence connects
to a proper purpose without relying on any intermediate improper-
character inferences. Id.
Hartman at ¶ 23.
In Hartman, the defendant was charged with raping a female
acquaintance in her hotel room. In order to counter defendant’s denial and version
of events, the state presented evidence of the defendant’s having entered the
bedroom of his 12-year-old stepdaughter to molest her. The defendant was found
guilty, but his conviction was reversed by this court after the panel found that the
other acts evidence was improperly admitted.
On review, the Ohio Supreme Court upheld the ruling of this court,
holding that the evidence of the defendant’s other acts constituted impermissible
propensity evidence. The court noted that “[the defendant’s] having entered the
bedroom of his 12-year-old stepdaughter does not support an inference that [he]
entered [the victim’s] hotel room with the intent to rape her.” Id. at ¶ 63. This
inference, that the defendant preys on sleeping or impaired females, is not permitted
by Evid.R. 404(B).
The state attempted to make a similar inference here — that appellant
has a propensity to bind and attack women. In applying the test set forth above, we
find that the evidence of the prior attacks by appellant was not relevant in this
matter. As noted by the Hartman court, the proper question is not whether the
evidence of other bad acts is relevant to the ultimate determination of guilt.
Hartman, Slip Opinion No. 2020-Ohio-4440, at ¶ 26. “[T]he relevance
examination asks whether the proffered evidence is relevant to the particular
purpose for which it is offered, as well as whether it is relevant to an issue that is
actually in dispute.” State v. Smith, Slip Opinion No. 2020-Ohio-4441, ¶ 37, citing
Hartman at ¶ 26-27; Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496,
99 L.Ed.2d 771 (1988). The Evid.R. 404(B) evidence is required to be “probative of
a ‘purpose other than the person’s character or propensity to behave in a certain
way.’” Hartman at ¶ 26, quoting Gomez, 763 F.3d at 860 (7th Cir.2013).
The evidence offered in this matter goes strictly to attempt to
demonstrate that appellant has a propensity to bind women. Further, the evidence
cannot be used for the nonpropensity purposes cited by the state, to wit: modus
operandi, plan, or scheme. A modus operandi provides a “behavioral fingerprint”
for the other acts, which can be compared to the behavioral fingerprint for the crime
in question. State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). The state
may use a common modus operandi to prove identity by showing that the accused
has committed similar crimes and used the same distinct, identifiable scheme or
plan as was used in the commission of the charged offense. Id., citing State v. Smith,
49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990). Consequently, evidence of a modus
operandi is generally used only if the identity of the perpetrator is at issue. Id.; see
also Hartman at ¶ 39. Because appellant confessed to killing D.G., identity is not
an issue.
Further, with regard to use of other acts to demonstrate a plan or
scheme, the Hartman court stated as follows:
Evidence of a plan or common design “refers to a larger criminal
scheme of which the crime charged is only a portion.” [People v.]
Barbour, 106 Ill.App.3d [993,] 999, 436 N.E.2d 667 [(1982)]. Thus,
* * * evidence of a common design will more often be relevant to show
the motive for the crime charged, see McCormick, Evidence, Section
190, at 448-449 (2d Ed.1972).
Common-plan evidence generally concerns events that are
“inextricably related” to the crime charged. Weissenberger [Federal
Evidence,] Section 404.18; [State v.] Curry, 43 Ohio St.2d [66,] 73,
330 N.E.2d 720. The other acts form the “immediate background” of
the present crime: they are typically either part of the “same
transaction” as the crime for which the defendant is on trial or they are
part of “a sequence of events” leading up to the commission of the
crime in question. Weissenberger at Section 404.18. * * *
Id. at ¶ 40-41.
Thus, other acts evidence is admitted to demonstrate the larger plan
or scheme to which the current crime is connected and is relevant to show motive,
identity, and/or intention, if any are disputed. Id., citing McCormick at 448-449.
The other acts evidence in this matter did not constitute evidence of a
common plan or scheme. The attacks of the other women took place years prior to
when appellant stated that he killed D.G. There is no direct connection between the
other acts and the charged crime, and the evidence therefore does not demonstrate
a plan or scheme. See Smith, Slip Opinion No. 2020-Ohio-4441, at ¶ 41.
As noted above, identity is not an issue in the instant matter. Further,
the other acts evidence was not admissible to establish motive. Appellant’s prior
acts of binding and attacking women does not provide any evidence of any motive
to bind and attack D.G. beyond that which can be inferred from any other attack and
binding of a victim. See id. at ¶ 49. Moreover, appellant did not claim that the harm
done to D.G. was the result of a mistake or accident; thus, the other acts were not
admissible to demonstrate intent.
Accordingly, the other acts evidence was not relevant nor was it
presented for a legitimate purpose under Evid.R. 404(B) and should not have been
admitted in this matter. We note, however, that appellant elected to try his case
before the trial judge who also served in the dual role as finder of fact. The Supreme
Court of Ohio has recognized that, in bench trials, trial judges are ‘“presumed to
consider only the relevant, material and competent evidence in arriving at a
judgment unless the contrary affirmatively appears from the record.”’ State v.
Colegrove, 140 Ohio App.3d 306, 317, 747 N.E.2d 303 (8th Dist.2000), quoting
State v. Eubank, 60 Ohio St.2d 183, 187, 398 N.E.2d 567 (1979).
While the other acts evidence was admitted during the trial, the record
in this case does not affirmatively show that the trial court considered any
inadmissible evidence. Indeed, in rendering his finding of guilt, the trial judge
stated that “I think there was plenty of information here, even without the 404(B),
that in those bags were several ropes, she was tied up.”
Accordingly, we agree the other acts evidence was admitted in error
but find the error was harmless because the trial court, as the trier of fact, did not
consider any improper evidence. Appellant’s first assignment of error is overruled.
B. Sufficiency of the Evidence
In his second assignment of error, appellant argues that the trial court
erred in denying his Crim.R. 29 motions because his convictions were not supported
by sufficient evidence.
“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. Driggins, 8th
Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing State v. Thompkins, 78
Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable
doubt. State v. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-
1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
Cleveland v. Battles, 8th Dist. Cuyahoga No. 104984, 2018-Ohio-267, ¶ 12.
Appellant asserts that, with regard to the charges of kidnapping and
murder during the course of kidnapping, the physical evidence was inconclusive.
Appellant argues that the ropes found with D.G.’s remains could have been placed
there postmortem. Appellant further asserts that it is plausible that D.G. and
appellant engaged in a wholly consensual encounter, that could have even included
consensual rope binding.
The state points out that evidence was presented demonstrating that
D.G.’s remains were found with binding wrapped around her wrists, legs, and neck.
We find that there was sufficient evidence to support a conviction of
kidnapping and murder in the course of kidnapping. Kidnapping is a violation of
R.C. 2905.01(A)(3), which provides that “[n]o person, by force, threat, or deception,
* * * shall remove another from the place where the other person is found or restrain
the liberty of the other person” with the purpose to “terrorize, or to inflict serious
physical harm on the victim or another.” Appellant was further charged with
aggravated murder under R.C. 2903.01(B), with the state alleging that he purposely
caused the death of D.G. “while committing or attempting to commit, or while
fleeing immediately after committing or attempting to commit,” kidnapping.
Having viewed the evidence presented at trial in a light most favorable
to the prosecution, we conclude that any rational trier of fact could have found the
essential elements of R.C. 2905.01(A)(3) and 2903.01(B) proven beyond a
reasonable doubt. There was testimony by the medical examiner and other forensic
witnesses that the binding was around the limbs and neck of D.G. This evidence was
sufficient to establish that appellant restrained D.G.’s liberty in order to inflict
serious physical harm upon her and further purposely caused her death while doing
so.
Appellant further asserts that there was insufficient evidence to
support his conviction of murder in violation of R.C. 2903.02(A). To obtain a
conviction under this statute, the state was required to prove that appellant
purposely caused the death of D.G.
The evidence presented showed that appellant used a knife to stab
D.G. in the right temple region of her head and also inflicted other nonfatal wounds.
Moreover, there was evidence that D.G.’s body was bound. From this evidence, the
factfinder could infer purpose. See State v. Franklin, 11th Dist. Geauga No. 2010-
G-2979, 2012-Ohio-1267, ¶ 100. In addition, while appellant stated that he attacked
D.G. with the knife to stop her from making a false report of rape, the factfinder in
this case was free to disregard appellant’s version of events. “The trier of fact is free
to believe or disbelieve all, part, or none of each witness’s testimony.” State v.
Williams, 8th Dist. Cuyahoga No. 106266, 2018-Ohio-3368, ¶ 67, citing State v.
Sheppard, 1st Dist. Hamilton No. C-000553, 2001 Ohio App. LEXIS 4590, 22
(Oct. 12, 2001).
We find that there was also sufficient evidence to support appellant’s
conviction of murder, and appellant’s second assignment of error is overruled.
C. Manifest Weight of the Evidence
Finally, appellant argues that his convictions were against the
manifest weight of the evidence.
In contrast to a challenge based on sufficiency of the evidence, a
manifest weight challenge attacks the credibility of the evidence presented and
questions whether the state met its burden of persuasion at trial. State v. Whitsett,
8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-
Ohio-3598, ¶ 13. In our manifest weight review of a bench trial verdict, we recognize
that the trial court is serving as the factfinder, and not a jury:
“Accordingly, to warrant reversal from a bench trial under a manifest
weight of the evidence claim, this court must review the entire record,
weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in
evidence, the trial court clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed and a new
trial ordered.”
State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41, quoting State v.
Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.).
See also State v. Kessler, 8th Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13.
Appellant contends that the greater weight of the evidence produced
at trial established that appellant killed D.G., but that he did so in a fit of anger as a
result of her threat to file a false rape allegation against him. Appellant
acknowledges that the physical and forensic evidence presented in this matter
establish D.G.’s death, the location and condition of her remains, and the method by
which she was killed; however, everything else that transpired that night could only
be testified to by appellant. Appellant asserts that the state was unable to contradict
his firsthand statements and instead merely offered supposition and speculation.
We simply cannot say that the trial judge lost his way in believing the
case presented by the state and disregarding the self-serving statements made by
appellant. “A defendant is not entitled to a reversal on manifest weight grounds
merely because inconsistent evidence was presented at trial.” Williams, 8th Dist.
Cuyahoga No. 106266, 2018-Ohio-3368, at ¶ 67, citing State v. Raver, 10th Dist.
Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. Moreover, a conviction is not against
the manifest weight of the evidence simply because the trier of fact chose to believe
the state’s version of events over that of the appellant. Id., citing State v. Williams,
10th Dist. Franklin No. 08AP-719, 2009-Ohio-3237, ¶ 17.
This is not an exceptional case in which the evidence weighs heavily
against the convictions. Accordingly, we cannot say that appellant’s convictions
were against the manifest weight of the evidence, and appellant’s third assignment
of error is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm the judgment of the
trial court. The trial court erred by admitting other acts evidence; however, the error
was harmless because the evidence was not ultimately considered by the court in
rendering its decision. Appellant’s convictions were supported by sufficient
evidence and not against the manifest weight of the evidence.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
RAYMOND C. HEADEN, J., CONCUR