State v. Bitting

2011 Ohio 5892

• Court: Ohio Court of Appeals
• Decided: November 16, 2011
• Docket: 25774
• Status: Published

Opinion

[Cite as State v. Bitting, 2011-Ohio-5892.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25774

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DANIEL L. BITTING COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 10 09 2592

DECISION AND JOURNAL ENTRY

Dated: November 16, 2011

WHITMORE, Judge.

{¶1} Defendant-Appellant, Daniel Bitting, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

I

{¶2} At approximately 3:00 a.m. on August 25, 2010, Cho’ice Wright was awakened

when her boyfriend, Darnell Bitting, came into her bedroom. Darnell stayed for a little over an

hour, received a phone call, and left. Wright then fell back asleep, but woke again at some point

after 5:30 a.m. because she heard one of the floorboards outside her room creak. Wright got out

of bed and heard her backdoor slam. She walked over to a window that faced her backyard and

saw that someone had activated her motion light. Wright saw a man in her backyard and yelled

down to him. When the man turned to look in Wright’s direction, she recognized him as

Darnell’s brother, Daniel Bitting. Bitting then turned and ran. 2

{¶3} Wright found her purse in her kitchen and realized the purse was empty. The

purse had been next to Wright’s bed along with five other purses when she went to sleep.

Further, Wright had placed $1,200 in cash in that particular purse. Wright called Darnell,

believing that he had told his brother that she had a large amount of cash in the house and where

to find it. According to Wright, Darnell admitted that Bitting had taken the money.

{¶4} On September 29, 2010, a grand jury indicted Bitting on one count of burglary, in

violation of R.C. 2911.12(A)(1). A bench trial began on December 6, 2010, at the conclusion of

which the court found Bitting guilty. On December 27, 2010, the court sentenced Bitting to

three years in prison.

{¶5} Bitting now appeals from his conviction and raises two assignments of error for

our review.

II

Assignment of Error Number One

“APPELLANT BITTING’S CONVICTION MUST BE REVERSED AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶6} In his first assignment of error, Bitting argues that his conviction is against the

manifest weight of the evidence. We disagree.

{¶7} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

“[M]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.

A weight of the evidence challenge indicates that a greater amount of credible evidence supports

one side of the issue than supports the other. State v. Thompkins (1997), 78 Ohio St.3d 380, 387. 3

Further, when reversing a conviction on the basis that the conviction was against the manifest

weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the

factfinder’s resolution of the conflicting testimony. Id. Therefore, this Court’s “discretionary

power to grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175; see,

also, Otten, 33 Ohio App.3d at 340.

{¶8} “No person, by force, stealth, or deception, shall *** [t]respass in an occupied

structure *** when another person other than an accomplice of the offender is present, with

purpose to commit in the structure *** any criminal offense[.]” R.C. 2911.12(A)(1). Whoever

commits the foregoing offense is guilty of burglary. R.C. 2911.12(D).

{¶9} Wright testified that she placed $1,200 in a purse that she then put next to her bed

along with several other purses. Wright testified that she had the money at home because she

had recently cashed a check she received for her student loan and did not have a bank account.

Wright found her empty purse in her kitchen after she saw Bitting in her backyard and he ran

from her. She testified that she knew Bitting because he was her boyfriend’s brother. Further,

she testified that she was able to see Bitting after she yelled because her motion light illuminated

his face when he turned to face her. Wright opined that her boyfriend, Darnell, told his brother

that she had a large amount of cash in her bedroom. According to Wright, Darnell admitted to

her on the phone that Bitting had stolen her money.

{¶10} Bitting presented several alibi witnesses and testified in his own defense. Bitting,

his sister, and Denise Edwards, the mother of Bitting’s child, all testified that Bitting was at

Edwards’ residence from approximately 10:30 p.m. on August 24, 2010 until the following

morning. According to Bitting and several defense witnesses, Wright purposely accused Bitting 4

of burglary because she was angry. Darnell testified that Wright became angry with Bitting after

she heard him call her an “ugly b***h” while she was on the phone with Darnell. Darnell

claimed that he had ended his relationship with Wright several months before this incident and

that she did not react well to their breakup. Darnell also denied having gone to Wright’s home

several hours before the burglary occurred. Both Darnell and Bitting admitted that they had prior

convictions. In particular, Bitting admitted that he had a prior conviction for robbery and was

out on bond for attempted burglary at the time Wright accused him of burglarizing her.

{¶11} Bitting argues that his conviction is against the manifest weight of the evidence

because multiple people testified that he was with them at the time the burglary occurred. Yet,

“the trier of fact is in the best position to determine the credibility of witnesses and evaluate their

testimony accordingly.” State v. Johnson, 9th Dist. No. 25161, 2010-Ohio-3296, at ¶15. The

trial court here chose to believe the victim rather than Bitting’s alibi or his assertion that the

victim fabricated criminal charges against him out of anger over an off-color remark. We do not

find its resolution of credibility to be unreasonable. Based on our review of the record, we

cannot conclude that Bitting’s conviction is against the manifest weight of the evidence simply

because the court found the victim more credible. See State v. Jarvis, 9th Dist. No. 25481, 2011-

Ohio-4491, at ¶14. Bitting’s first assignment of error is overruled.

Assignment of Error Number Two

“APPELLANT BITTING’S SENTENCE MUST BE VACATED, AS THE TRIAL COURT RELIED UPON IMPERMISSIBLE FACTORS WHEN IT IMPOSED BITTING’S SENTENCE, THEREBY ABUSING ITS DISCRETION.”

{¶12} In his second assignment of error, Bitting argues that the trial court abused its

discretion when it sentenced him to three years in prison. Specifically, he argues that the court

allowed improper factors to influence its sentencing decision. 5

{¶13} Trial courts have “full discretion *** to sentence defendants within the bounds

prescribed by statute.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, at ¶32,

citing State v. Foster, 109 Ohio St.3d 1, paragraphs one through seven of the syllabus. Appellate

courts apply a two-step approach in reviewing the sentence that a trial court has imposed upon a

defendant. Evans at ¶32, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶4.

“First, they must examine the sentencing court’s compliance with all applicable rules and statutes

in imposing the sentence to determine whether the sentence is clearly and convincingly contrary

to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-

of-discretion standard.” Kalish at ¶4. An abuse of discretion implies an attitude on the part of

the trial court that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219.

{¶14} Bitting concedes that his three-year prison sentence is not contrary to law, as it

falls within the statutory sentence range for his offense. See R.C. 2929.14(A)(2). He argues,

however, that the court abused its discretion in imposing his sentence because it relied upon

improper factors in issuing his sentence. Specifically, Bitting argues that the court punished him

for his lifestyle choices in sentencing him.

{¶15} In Bitting’s sentencing entry, the trial judge explicitly noted that she had

considered the principles and purposes of sentencing set forth in R.C. 2929.11 as well as the

seriousness and recidivism factors set forth in R.C. 2929.12. The trial judge listened to

arguments from both the State and defense counsel, heard from Bitting, and indicated that she

had read letters submitted on Bitting’s behalf. The court noted that Bitting had prior convictions

for similar conduct. The court further noted that Bitting showed an “utter disregard” for the

consequences of his actions, as he committed the burglary against Wright while out on bond for 6

another pending burglary charge to which he later pleaded guilty. Even so, the trial judge did not

sentence Bitting to the five-year term that the State requested. Instead, she chose to sentence him

to three years.

{¶16} The record reflects that, in sentencing Bitting, the court commented that he had

finally suffered consequences as a result of his poor judgment. Bitting had testified at trial that

he had a child with Edwards, with whom he claimed to have spent the night at the time of the

burglary. He indicated, however, that he only arrived at Edwards’ home after leaving a different

woman’s apartment. He indicated at trial that he did not know the woman’s last name and

described her as his “little lady friend[.]” He also acknowledged at sentencing that he was

involved with Edwards despite the fact that she had brought domestic violence charges against

him. During sentencing, the trial judge referenced what she perceived to be a certain penchant

Bitting had for “play[ing] people,” particularly women, and noted his choice to act the way that

he did rather than be a responsible father for his daughter. See generally State v. O’Dell (1989),

45 Ohio St.3d 140, 147 (concluding that a sentencing court may “consider evidence heard during

the trial as well as the demeanor of the accused”). Bitting’s counsel did not enter any objections

at the sentencing hearing.

{¶17} Bitting argues that his choice of lifestyle is not a factor that the court could

consider in sentencing him. Yet, even assuming that the court erred here and that Bitting did not

forfeit any objection to that error by failing to object, the record does not support the conclusion

that Bitting suffered any prejudice. The court considered the factors set forth in R.C. 2929.11

and R.C. 2929.12, emphasized that Bitting had history of similar conduct that resulted in prior

convictions, and ultimately issued him a sentence of three years in prison out of a possible eight- 7

year term. Bitting’s argument that his sentence must be vacated lacks merit. His second

assignment of error is overruled.

III

{¶18} Bitting’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

BELFANCE, P. J. CARR, J. CONCUR 8

APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.