State v. Bunkley , 2020 Ohio 6675 ( 2020 )

[Cite as State v. Bunkley, 2020-Ohio-6675.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-024
- vs - :
JEROME L. BUNKLEY, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2019 CR
000094.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, Ohio 44077 (For Plaintiff-Appellee).
Dennis P. Levin, Landerbrook Corporate Center, 5910 Landerbrook Drive, Suite 200,
Cleveland, Ohio 44124 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Jerome L. Bunkley (“Mr. Bunkley”), appeals his convictions for
forgery and passing bad checks following a jury trial in the Lake County Court of Common
Pleas.
{¶2} Mr. Bunkley argues that (1) the state failed to present sufficient evidence to
support his convictions because there was no proper evidence establishing his identity
as the offender and because copies of checks admitted into evidence were not properly
authenticated; (2) the jury’s verdicts were against the manifest weight of the evidence;
and (3) he was denied due process of law as a result of cumulative error.
{¶3} After a careful review of the record and pertinent law, we find as follows:
{¶4} (1) The state presented direct and circumstantial evidence, which, if
believed, was sufficient to establish Mr. Bunkley’s identity as the person who committed
the offenses of forgery and passing bad checks. Mr. Bunkley’s arguments are based on
an inaccurate and incomplete characterization of the witnesses’ testimony.
{¶5} (2) The state presented sufficient evidence to prove that the check was
“spurious” under R.C. 2913.31(A)(2) and “dishonored” under R.C. 2913.11(B). Mr.
Bunkley’s arguments are premised on the inadmissibility of the state’s evidence. This
court reviews all evidence admitted at trial in a sufficiency analysis, and Mr. Bunkley’s
evidentiary arguments are without merit.
{¶6} (3) Mr. Bunkley’s convictions are not against the manifest weight of the
evidence. Mr. Bunkley has not established that the jury clearly lost its way and created a
manifest miscarriage of justice in its credibility determinations and weighing of the
evidence.
{¶7} (4) Finally, since we do not find multiple instances of harmless error, the
doctrine of cumulative error is inapplicable.
{¶8} Thus, we affirm the judgment of the Lake County Court of Common Pleas.
Substantive and Procedural History
{¶9} On October 24, 2018, Mr. Bunkley had warranty repair work performed on
his vehicle at Classic BMW (“Classic”), which is a car dealership located in Willoughby
Hills, Ohio. Upon completion of the repairs, the service department provided Mr. Bunkley
with quotes regarding the costs of parts and labor for additional repairs.
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{¶10} Subsequently, Classic received a phone order for some of the quoted
vehicle parts. The person provided a vehicle identification number (“VIN”) so that Classic
could locate and retrieve the parts associated with the vehicle’s make and model. The
cost to purchase the parts was much less expensive without the service department’s
associated labor costs.
{¶11} On November 8, 2018, a man who the state alleges was Mr. Bunkley visited
Classic’s parts department to complete the purchase of the ordered vehicle parts. Daniel
Palermo, a parts representative at Classic, assisted him. The man identified himself as
“Jerome Jones,” and he signed and presented a personal check drawn from US Bank in
the amount of $311.19 for the purchase. Mr. Palermo stamped the back of the check with
“pay to the order of Key Bank” and put it in Classic’s safe.
{¶12} “Jerome Jones” provided Mr. Palermo with contact information for the
creation of a new customer account. He also signed an invoice on which Mr. Palermo
had written the last seven digits of the associated VIN, which Classic used as the invoice
number for record-keeping purposes.
{¶13} Classic’s video surveillance system recorded the interaction between Mr.
Palermo and “Jerome Jones,” which lasted approximately 15 to 20 minutes. According
to Mr. Palermo, “Jerome Jones” was more inquisitive during the transaction than typical
customers.
{¶14} A short time later, Classic’s general office notified Paul Pennington, the
parts manager at Classic, that Key Bank had returned the check from “Jerome Jones”
because the US Bank account did not exist. Mr. Pennington obtained the invoice number
relating to the transaction with “Jerome Jones.” Upon searching Classic’s records, he
discovered that it matched the VIN associated with Mr. Bunkley’s vehicle, which Classic
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had repaired on October 24. He further noted that the service department had
recommended to Mr. Bunkley some of the same parts that “Jerome Jones” later
purchased.
{¶15} Mr. Pennington notified the Willoughby Hills Police Department, and Officer
Randy Mullenax responded to the call. Mr. Pennington showed Officer Mullenax the
invoice and returned check documentation relating to the purchase by “Jerome Jones” on
November 8 and the service order relating to Mr. Bunkley’s warranty repairs on October
24. Upon review, Officer Mullenax noticed that the first names of “Jerome” and the
associated VINs were the same but that the last names and addresses were different.
{¶16} Mr. Pennington also showed Officer Mullenax the surveillance video
recording of the November 8 transaction with “Jerome Jones.” Officer Mullenax ran the
VIN and plate number through the state database on his cruiser’s computer and pulled
up a photo of Mr. Bunkley as the registered owner. Officer Mullenax determined that it
was “evident” that the video depicted Mr. Bunkley. He showed the photo to a few Classic
employees, including Mr. Palermo, and they confirmed that it depicted the man who
presented himself as “Jerome Jones.”
{¶17} Sometime later, a man wearing a coat and hood dropped off a box at
Classic’s counter that contained some of the parts that “Jerome Jones” had purchased.
{¶18} The Lake County Grand Jury indicted Mr. Bunkley on one count of forgery,
a fifth-degree felony, in violation of R.C. 2913.31(A)(2) (count 1), and one count of passing
bad checks, a first-degree misdemeanor, in violation of R.C. 2913.11(B) (count 2). Mr.
Bunkley waived his right to be present at his arraignment, and the trial court entered not
guilty pleas on his behalf.
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{¶19} Following a hearing, the trial court granted Mr. Bunkley’s oral motion to
represent himself and appointed stand-by counsel.
{¶20} Mr. Bunkley filed a pretrial motion to suppress evidence relating to the
Classic employees’ identification of him from his license photo, which the state opposed.
The trial court issued a judgment entry denying Mr. Bunkley’s motion on substantive and
procedural grounds.
{¶21} The matter proceeded to a jury trial, where the state presented testimony
from Mr. Palermo, Mr. Pennington, and Officer Mullenax, as well as the surveillance video
recording, the check from “Jerome Jones,” the returned check documentation, and the
documents relating to the October 24 and November 8 transactions.
{¶22} On at least three instances during his testimony, Mr. Palermo identified Mr.
Bunkley as the man who presented himself as “Jerome Jones” on November 8. During
cross-examination, Mr. Bunkley presented Mr. Palermo with a copy of his vehicle title.
Mr. Palermo testified that its last seven digits matched the invoice number for the
transaction with “Jerome Jones.”
{¶23} Officer Mullenax testified that in his opinion, Mr. Bunkley appeared to be the
man in the surveillance video recording.
{¶24} Mr. Bunkley obtained admission of the vehicle title he presented during
cross-examination but presented no witness testimony or other evidence.
{¶25} Following deliberations, the jury found Mr. Bunkley guilty of both offenses.
{¶26} The trial court held a sentencing hearing where it sentenced Mr. Bunkley to
concurrent prison terms of six months on count 1 (forgery) and 90 days on count 2
(passing bad checks); ordered restitution to the victim in the amount of $85.58; and
assessed court costs and the costs of prosecution against him. The trial court
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subsequently issued judgment entries memorializing the guilty verdicts and Mr. Bunkley’s
sentences.
{¶27} Mr. Bunkley filed a notice of appeal and a motion for an appeals bond. The
trial court stayed execution of his sentence during the pendency of his appeal.
{¶28} Mr. Bunkley presents the following four assignments of error for our review:
{¶29} “[1.] The state of [O]hio failed to present sufficient evidence to support the
trial court’s convictions as to the charges of forgery and/or passing bad checks inasmuch
as there was no proper evidence as to the identification of appellant at trial.
{¶30} “[2.] The state of [O]hio failed to present sufficient evidence to support the
trial court’s convictions inasmuch as the copies of the checks admitted into evidence as
exhibits ‘1a’ and ‘1b’ were not properly authenticated.
{¶31} “[3.] The verdicts of the trial court were against the manifest weight of the
evidence.
{¶32} “[4.] The Appellant was denied due process of law as a result of the
cumulative errors that occurred in this case.”
Sufficiency of the Evidence
{¶33} We review Mr. Bunkley’s first and second assignments of error together,
where he contends that the state did not present sufficient evidence to support his
convictions.
Standard of Review
{¶34} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio
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St.3d 380, 386 (1997), quoting Black's Law Dictionary 1433 (6th Ed.1990). “In essence,
sufficiency is a test of adequacy.” Id.{¶35} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence
in a light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” Id.{¶36} The claim of insufficient evidence raises a question of law, the resolution of
which does not allow us to weigh the evidence. State v. Lee, 11th Dist. Lake No. 2010-
L-084, 2011-Ohio-4697, ¶9, quoting State v. Davis, 49 Ohio App.3d 109, 113 (8th
Dist.1988).
Forgery; Passing Bad Checks
{¶37} Mr. Bunkley was convicted of forgery in violation of R.C. 2913.31(A)(2),
which states that “[n]o person, with purpose to defraud, or knowing that the person is
facilitating a fraud, shall do any of the following: * * * [f]orge any writing so that it purports
to be genuine when it actually is spurious, or to be the act of another who did not authorize
that act, or to have been executed at a time or place or with terms different from what in
fact was the case, or to be a copy of an original when no such original existed[.]”
{¶38} Mr. Bunkley was also convicted of passing bad checks in violation of R.C.
2913.11(B), which states that “[n]o person, with purpose to defraud, shall issue or transfer
or cause to be issued or transferred a check or other negotiable instrument, knowing that
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it will be dishonored or knowing that a person has ordered or will order stop payment on
the check or other negotiable instrument.”
{¶39} In addition, every criminal prosecution requires proof that the person
accused of the crime is the person who committed the crime. State v. Tate, 140 Ohio
St.3d 442, 2014-Ohio-3667, ¶15. This truism is reflected in the state’s constitutional
burden to prove the guilt of “the accused” beyond a reasonable doubt. (Citation omitted.)
Id. Like any fact, the state can prove the identity of the accused by circumstantial or direct
evidence. (Citation omitted.) Id.Identity
{¶40} Mr. Bunkley first asserts that the state did not present sufficient evidence to
prove his identity as the offender. Mr. Bunkley argues that there was “no affirmative
testimony” that he committed the offenses.
{¶41} According to Mr. Bunkley, Mr. Palermo testified that he never had any
contact with Mr. Bunkley. Rather, Mr. Palermo’s “boss,” who did not testify at trial,
identified “Jerome Jones” to Mr. Palermo as “Jerome Bunkley.”
{¶42} Mr. Bunkley misconstrues Mr. Palermo’s testimony. Mr. Palermo initially
testified that the man with whom he interacted on November 8 presented himself as
“Jerome Bunkley.” Upon being presented with the check, however, Mr. Palermo
corrected his prior testimony and stated that the man actually presented himself as
“Jerome Jones.” He explained that he had mistakenly said “Jerome Bunkley” as a result
of hearing the name “over the last few months” from his “boss,” presumably during
preparation for trial.
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{¶43} Although Mr. Palermo referred only to his “boss” in this portion of his
testimony, he later identified his “boss” as “Paul Pennington.” As indicated, Mr.
Pennington did testify at trial.
{¶44} Further, an appellate court must review “all of the evidence” admitted at trial
in a sufficiency analysis. (Emphasis sic.) Tate at ¶18, quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979). Mr. Bunkley’s argument does not acknowledge Mr. Palermo’s other
testimony, which included his multiple identifications of Mr. Bunkley in the courtroom as
being “Jerome Jones” and his statement that nothing in the surveillance video presented
at trial contradicted what he saw of Mr. Bunkley in the courtroom. Therefore, contrary to
Mr. Bunkley’s assertions, Mr. Palermo positively identified Mr. Bunkley as the offender,
and he did so multiple times.
{¶45} Mr. Bunkley states that Mr. Pennington was “another Classic BMW
employee” and that he testified that he was told by Mr. Palermo, who had been told by
his “boss,” that Mr. Bunkley was the offender.
{¶46} Mr. Pennington actually testified that he was the parts manager in charge
of nine employees, not simply a Classic “employee.” His and Mr. Palermo’s testimony
established that he was the “boss” to whom Mr. Palermo referred.
{¶47} In addition, Mr. Pennington testified he did not have contact with Mr.
Bunkley on October 24 or with “Jerome Jones” on November 8, but his “parts employee,”
Mr. Palermo, identified the offender as Mr. Bunkley. Mr. Pennington was unable to
positively identify Mr. Bunkley in the courtroom from the surveillance video.
{¶48} Instead, the crux of Mr. Pennington’s testimony related to his role in
personally investigating the transaction following the return of the check, where he
discovered that the invoice number matched the VIN associated with Mr. Bunkley’s
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recently repaired vehicle and that Classic had previously recommended some of the
purchased parts to Mr. Bunkley.
{¶49} Finally, according to Mr. Bunkley, Officer Mullenax testified that he showed
Mr. Bunkley’s license photo to a few “unidentified” Classic employees who positively
identified Mr. Bunkley, but these employees did not testify at trial. He also asserts that
Officer Mullenax’s opinion that Mr. Bunkley was the man in the surveillance video was
“tainted” by the employees’ positive identification.
{¶50} Officer Mullenax actually testified that he viewed Mr. Bunkley’s license
photo and determined Mr. Bunkley was the person in the surveillance video before
showing the photo to Classic employees. Mr. Palermo was one of the Classic employees
to whom he showed the license photo. Officer Mullenax also testified that in his opinion,
Mr. Bunkley appeared to be the man in the surveillance video recording. Whether Officer
Mullenax’s identification of Mr. Bunkley was “tainted” relates to the weight of his
testimony, which we may not consider in our sufficiency analysis. See Lee, supra, at ¶9;
State v. Reed, 10th Dist. Franklin No. 08AP-20, 2008-Ohio-6082, ¶48 (“[T]he credibility
of witnesses and their degree of certainty in identification are matters affecting the weight
of the evidence”).
{¶51} In sum, we find that the state presented direct and circumstantial evidence,
which, if believed, was sufficient to establish Mr. Bunkley’s identity as the person who
committed the offenses of forgery and passing bad checks.
Meanings of Spurious and Dishonored
{¶52} Mr. Bunkley next contends that the state did not present sufficient evidence
to establish that the check was “spurious” under R.C. 2913.31(A)(2), for the offense of
forgery, or “dishonored” under R.C. 2913.11(B), for the offense of passing bad checks.
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{¶53} Since neither term is defined by their respective statutes, we refer to their
common, everyday meanings. See Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d 374,
2010-Ohio-1468, ¶24. The dictionary definitions of “spurious” include “outwardly similar
or corresponding to something without having its genuine qualities: FALSE” and “of
falsified or erroneously attributed origin: FORGED.” See Merriam-Webster,
http://www.merriam-webster. com/dictionary/spurious (accessed December 2, 2020).
{¶54} The dictionary definition of “dishonored” includes “the nonpayment or
nonacceptance of commercial paper by the party on whom it is drawn.” See Merriam-
Webster, https://www.merriam-webster.com/dictionary/dishonored (accessed December
2, 2020). In addition, “a person who issues * * * a check * * * is presumed to know that it
will be dishonored” for purposes of R.C. 2913.11 “if * * * [t]he drawer had no account with
the drawee at the time of issue or the stated date, whichever is later[.]” R.C.
2913.11(C)(1).
{¶55} Mr. Palermo testified that he observed “Jerome Jones” sign and present a
personal check, which he stamped “pay to the order of Key Bank” and put in Classic’s
safe. Mr. Palermo identified exhibit 1B as the check “Jerome Jones” presented.
{¶56} Mr. Pennington identified exhibit 1A as the documents he received from
Classic’s general office regarding the return of “Jerome Jones’” check. Exhibit 1A
consists of a document from Key Bank addressed to Classic and a copy of a check. The
document indicates the return of one check totaling $311.19 from “Jerome Jones” that
was deposited on November 9, 2018. Under “reason,” it states “UTLA – UNABLE TO
LOCATE ACCOUNT.” The check copy is stamped with the following: “Return Reason
E, UTLA – Unable to Locate Account.”
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{¶57} Mr. Bunkley argues that exhibits 1A and 1B were inadmissible at trial and,
thus, insufficient to support his convictions. According to Mr. Bunkley, the state was
required to present testimony from a Key Bank representative to establish that the check
was “spurious” and “dishonored.”
{¶58} Mr. Bunkley acknowledges that he did not object to the admission of this
evidence at trial. This court has explained that “[w]hile one has the right to represent
himself or herself * * *, the pro se litigant is to be treated the same as one trained in the
law as far as the requirement to follow procedural law and the adherence to court rules.”
(Citations omitted.) State v. Ober, 11th Dist. Portage Nos. 2018-P-0034 & 2018-P-0035,
2019-Ohio-843, ¶12.
{¶59} In addition, when conducting a sufficiency of the evidence analysis, this
court is to look at the actual evidence admitted at trial, both admissible and inadmissible.
(Citations omitted.) State v. Rose, 11th Dist. Lake No. 2014-L-086, 2015-Ohio-2607, ¶34;
see State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶20.
{¶60} Therefore, to the extent Mr. Bunkley’s assignment of error is dependent on
the exclusion of evidence, it is without merit.
{¶61} Further, as demonstrated below, Mr. Bunkley’s admissibility arguments are
also without merit.
Authentication
{¶62} Mr. Bunkley argues that exhibits 1A and 1B were inadmissible because they
were copies and were not properly authenticated. We disagree.
{¶63} Evid.R. 901(A) states that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims.” As this court
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has recognized, “[t]his low threshold standard does not require conclusive proof of
authenticity, but only sufficient foundational evidence for the trier of fact to conclude that
the document is what its proponent claims it to be.” (Citations omitted.) State v. Miller,
11th Dist. Trumbull No. 2014-T-0061, 2015-Ohio-956, ¶21. “A proponent may
demonstrate genuineness or authenticity through direct or circumstantial evidence.”
(Citations omitted.) State v. Jaskiewicz, 11th Dist. Trumbull No. 2012-T-0051, 2013-Ohio-
4552, ¶12.
{¶64} For instance, in State v. Shaw, 4th Dist. Ross No. 11CA3288, 2013-Ohio-
5503, the Fourth District held that a bank representative’s testimony was not required to
authenticate checks at trial to prove a passing bad checks offense. Id. at ¶8. The court
found that testimony from employees who viewed the original and returned check was
sufficient to satisfy the authentication requirement of Evid.R. 901(A). Id. at ¶9.
{¶65} In addition, this court has recognized that “[c]ommercial paper, which by
definition includes bank checks and drafts, the signatures thereon, and the documents
relating thereto, are self-authenticating pursuant to Evid.R. 902(9).” State v. Doane, 11th
Dist. Trumbull No. 91-T-4639, 1994 WL 721648, *2 (Dec. 16, 1994); State v. Carroll, 11th
Dist. Ashtabula Nos. 2017-A-0030 & 2017-A-0031, 2018-Ohio-1884, ¶43.
{¶66} Further, “[a] duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.” Evid.R.
1003; Doane at *3; Carroll at ¶43.
{¶67} Mr. Palermo identified exhibit 1B as being the check “Jerome Jones”
presented to him, which he recognized from the signature he had observed and the stamp
he had affixed.
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{¶68} Mr. Pennington identified exhibit 1A as being the documents he received
from Classic’s general office. Mr. Pennington also identified exhibit 1B as being the
original check that he subsequently received from Classic’s general office.
{¶69} Thus, both exhibits were properly authenticated pursuant to Evid.R. 901(A)
and were also self-authenticating pursuant to Evid.R. 902(9).
{¶70} Although exhibit 1A depicts a copy of the returned check rather than the
original, Mr. Bunkley has not asserted, much less established, that there is a genuine
question regarding the authenticity of the original document or that it was unfair to admit
a copy instead of the original.
Hearsay
{¶71} Mr. Bunkley also argues that exhibit 1A contains inadmissible hearsay.
Again, we disagree.
{¶72} “Hearsay” is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). A “statement” includes “an oral or written assertion.” Evid.R.
801(A)(1).
{¶73} The general rule is that hearsay is not admissible. See Evid.R. 802. There
are exceptions, however, which are set forth in Evid.R. 803 and 804. The business
records exception is found in Evid.R. 803(6), which provides as follows:
{¶74} “The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
{¶75} “* * *
{¶76} “Records of Regularly Conducted Activity. A memorandum, report, record,
or data compilation, in any form, of acts, events, or conditions, made at or near the time
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by, or from information transmitted by, a person with knowledge, if kept in the course of
a regularly conducted business activity, and if it was the regular practice of that business
activity to make the memorandum, report, record, or data compilation, all as shown by
the testimony of the custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term ‘business’ as used in this
paragraph includes business, institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit.”
{¶77} In addition, R.C. 1303.65, which is part of Ohio’s adoption of the Uniform
Commercial Code, states, in relevant part, as follows:
{¶78} “(A) The following are admissible as evidence and create a presumption of
dishonor and of any notice of dishonor stated:
{¶79} “* * *
{¶80} “(2) A purported stamp or writing of the drawee, payor bank, or presenting
bank on or accompanying the instrument stating that acceptance or payment has been
refused unless reasons for the refusal are stated and the reasons are not consistent with
dishonor;
{¶81} “(3) A book or record of the drawee, payor bank, or collecting bank, kept in
the usual course of business that shows dishonor, even if there is no evidence of who
made the entry.” R.C. 1303.65(A)(2) and (3).
{¶82} Mr. Pennington testified that state’s exhibit 1A was a document he received
from Classic’s general office that is kept in the usual practice of Classic’s business. Since
bank checks and related documents are self-authenticating, the state was not required to
present testimony from Key Bank regarding its record-keeping practices. See Carroll at
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¶42-43; Doane at *3. According to the drafters of Evid.R. 803, “[t]he record keeper,
absent self-authenticating provisions must testify that the records are such as are
routinely kept as a part of the business and that the entrant (declarant) is under a duty to
record the items contained in the record, and that the records are maintained accurately
in accordance with a custom or routine.” (Emphasis added.) 1980 Staff Note to Evid.R.
803.
{¶83} In sum, we find that the state presented sufficient evidence to prove that the
check was “spurious” under R.C. 2913.31(A)(2) and “dishonored” under R.C. 2913.11(B).
{¶84} Mr. Bunkley’s first and second assignments of error are without merit.
Manifest Weight of the Evidence
{¶85} In his third assignment of error, Mr. Bunkley asserts that his convictions
were against the manifest weight of the evidence.
Standard of Review
{¶86} “[W]eight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶25, citing Thompkins at
386-87. “In other words, a reviewing court asks whose evidence is more persuasive—
the state’s or the defendant’s?” Id.{¶87} “The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of the witnesses and determines whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
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{¶88} “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 factfinder’s resolution of the conflicting testimony.”
(Citations omitted.) Id. “The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the conviction.”
Id., quoting Martin at 175.
Analysis
{¶89} Mr. Bunkley asserts that his convictions were against the manifest weight
of the evidence “for the same reasons” set forth in his first and second assignments of
error, i.e., because the state failed to prove his identity as the offender and because
exhibits 1A and 1B were not admissible. As explained above, however, Mr. Bunkley’s
arguments are without merit.
{¶90} Based on our review of the record, we conclude there is nothing to indicate
the jury clearly lost its way or created a manifest miscarriage of justice.
{¶91} As indicated, the state’s identification evidence included (1) Mr. Palermo’s
testimony, on multiple occasions, that Mr. Bunkley was the man who presented himself
as “Jerome Jones” on November 8; and (2) Mr. Palermo’s and Officer Mullenax’s
testimony that Mr. Bunkley was the man depicted in the surveillance video. The weight
of their testimony involves matters of credibility.
{¶92} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. “The choice between credible witnesses and their
conflicting testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” (Citations omitted.) State v.
17
Awan, 22 Ohio St.3d 120, 123 (1986). A fact finder is free to believe all, some, or none
of the testimony of each witness appearing before it. (Citation omitted.) State v. Fetty,
11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶58. Juries are not so susceptible
that they cannot measure intelligently the weight of identification testimony that has some
questionable feature. (Citations omitted.) State v. Tucker, 10th Dist. Franklin Nos. 15AP-
434 & 15AP-435, 2016-Ohio-1033, ¶13.
{¶93} Both Mr. Palermo and Officer Mullenax explained the bases of their
identifications. According to Mr. Palermo, he recalled details of the 15 to 20-minute
transaction because “Jerome Jones” was more inquisitive than the traditional customer.
According to Officer Mullenax, the surveillance video contains “several decent profile
shots” where you can see “Jerome Jones’” face.
{¶94} Mr. Bunkley had the opportunity to attack the reliability of the witnesses’
identifications at trial. Plus, the jury was able to personally observe Mr. Bunkley during
trial, view the surveillance video, and draw their own conclusions.
{¶95} Accordingly, we see no compelling reason to disturb the jury’s credibility
determinations.
{¶96} The state’s identification evidence also included several pieces of
circumstantial evidence connecting Mr. Bunkley to “Jerome Jones.” A prerequisite for
any reversal on manifest-weight grounds is conflicting evidence weighing heavily against
the conviction. (Citations omitted.) Tate, supra, at ¶20. Mr. Bunkley has not asserted,
much less established, that the circumstantial evidence is subject to conflicting inferences
or that it is unbelievable or incredible. Therefore, we see no compelling reason to disturb
the jury’s determinations.
{¶97} Mr. Bunkley’s third assignment of error is without merit.
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Cumulative Error
{¶98} In his fourth and final assignment of error, Mr. Bunkley contends that he
was denied due process of law as a result of cumulative error.
{¶99} Under the doctrine of cumulative error, “a conviction will be reversed where
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to
a fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995). In other
words, if this court finds various errors to be harmless error, we may reverse based upon
the effect of all of these harmless errors together. State v. Donkers, 170 Ohio App.3d
509, 2007-Ohio-1557, ¶202 (11th Dist.).
{¶100} The doctrine is not applicable to this case as we do not find multiple
instances of harmless error. See Garner at 64.
{¶101} Mr. Bunkley’s fourth assignment of error is without merit.
{¶102} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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