[Cite as State v. Blankenship, 2017-Ohio-7267.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 16 CAA 0024 JAMES BLANKENSHIP : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 15CR-I- 070327
JUDGMENT: Affirmed in part; Reversed and Remanded in part
DATE OF JUDGMENT ENTRY: August 16, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O’BRIEN TODD WORKMAN DOUGLAS DUMOLT Workman Law Office Delaware County Prosecutor’s office P.O. Box 687 140 North Sandusky Street, 3rd Fl. Delaware, OH 43015 Delaware, OH 43015 Delaware County, Case No. 16 CAA 0024 2
Gwin, P.J.
{¶1} Defendant-appellant James Blankenship [“Blankenship”] appeals his
conviction and sentence entered by the Delaware County Court of Common Pleas.
Plaintiff-appellee is the State of Ohio.
Facts and Procedural History
{¶2} Beginning in January of 2015, law enforcement in the northern Central Ohio
area began receiving reports of break-ins in county animal shelters and humane societies.
The first break-in occurred on January 9, 2015 in Morrow County and the second occurred
on January 12, 2015 in Marion County. The third and fourth break-ins occurred on the
night on January 19, 2015 in Union and Logan Counties. The fifth break-in occurred on
February 1, 2015 in Knox County. The sixth break-in occurred on February 4, 2015 in
Ashland County. The seventh break-in occurred on February 10, 2015 in Delaware
County. The eighth and ninth break-ins occurred on February 13, 2015 in Hardin and
Seneca Counties. On February 15, 2015, the tenth, eleventh and twelfth break-ins
occurred in Medina, Wayne, and Huron Counties. On February 16, 2015, the thirteenth
and fourteenth break-ins occurred in Champaign and Madison Counties. On February
17, 2015, the fifteenth break-in occurred in Muskingum County. Finally, on February 18,
2015 the sixteenth break-in occurred in Hardin County.
{¶3} On February 19, 2015, Detective Viloria from the Ashland County Sheriff’s
office sent out a LEADS teletype directed to law enforcement agencies around Ohio
attempting to find out if humane societies or dog shelters in other jurisdictions were aware
of similar break-ins. Detective Marissa Gibson of the Morrow County Sheriff’s Office
contacted Detective Viloria to advise her that a similar break in had recently occurred in Delaware County, Case No. 16 CAA 0024 3
Morrow County. Detective Gibson learned that sixteen counties had experienced similar
break-ins of their humane societies since January 3. Based upon the number of counties
affected within such a short time, a meeting was scheduled to discuss the cases and
share information.
{¶4} At that meeting, law enforcement from around Ohio shared video footage
and still images from a number of the establishments that employed video surveillance
security systems. From that footage and initial investigation, the police were able to
identify a suspect vehicle. Detective Brian Beach had received a license plate number
and a car make and model from Patrolman Taylor of the Kenton Police Department. (2
T. at 401). Detective Beach relayed that information to Detective Gibson. (2T. at 403).
Using that information, Detective Gibson began conducting surveillance of Blankenship’s
residence and discovered that the license plate they were looking for had been
transferred to a white Pontiac at his residence. The white Pontiac had been observed in
surveillance footage from a break-in that occurred in Huron County.
{¶5} After Detective Gibson developed Blankenship as a possible suspect, she
obtained his phone number from his probation officer who worked for Morrow County
Adult Court Services. She provided that phone number to Detective Beach of the Kenton
Police department who was responsible for obtaining cellular phone records which might
show the location of Blankenship’s phone at times near when the break-ins had been
occurring. Ultimately, these records showed Blankenship's phone present in the same
geographic area as a number of the humane societies around the time at which the break-
ins occurred. Delaware County, Case No. 16 CAA 0024 4
{¶6} Toni Beers and Corby Creech were also viewed as potential suspects at
that time because they lived with Blankenship, were dating each other, and because the
license plate that had been identified in this case was registered to Toni Beers. Corby
Creech was apprehended attempting to break into a car wash on February 28, 2015 by
the Bucyrus Police Department. At that time, he was found to be wearing a pair of boots
with similar tread pattern to what had been observed at a number of the humane society
break-ins; moreover, he had distinctive orange walkie-talkie on his person that had been
observed on video surveillance during the Knox County Animal Shelter break-in.
{¶7} When Corby Creech was taken into custody, various Detectives from
around the state interviewed him. Creech explained that he and Blankenship would travel
around Ohio and break into humane societies and animal shelters looking for money,
safes, or other items worth stealing. He initially denied involvement in many of the break-
ins but admitted involvement in others. He explained that neither he nor Blankenship
were working and broke into these shelters to buy drugs and to support themselves.
{¶8} On July 24, 2015, Blankenship was indicted on fourteen counts - Count
One, Engaging in a Pattern of Corrupt Activity R.C. 2923.32(A)(1); Count Two, Breaking
and Entering in violation of R.C. 2911.13(A); Count Three, Safecracking in violation of
R.C. 2911.31(A); Count Four, Breaking and Entering in violation of R.C. 2911.13(A);
Count Five, Breaking and Entering in violation of R.C. 2911.13(A); Count Six,
Safecracking in violation of R.C. 2911.31(A); Count Seven, Breaking and Entering in
violation of R.C. 2911.13(A); Count Eight, Breaking and Entering in violation of R.C.
2911.13(A); Count Nine, Breaking and Entering in violation of R.C. 2911.13(A); Count
Ten, Safecracking in violation of R.C. 2911.31(A); Count Eleven, Breaking and Entering Delaware County, Case No. 16 CAA 0024 5
in violation of R.C. 2911.13(A); Count Twelve, Breaking and Entering in violation of R.C.
2911.13(A); Count Thirteen, Breaking and Entering in violation of R.C. 2911.13(A); Count
Fourteen, Breaking and Entering in violation of R.C. 2911.13(A).
{¶9} The jury trial commenced on April 25, 2016. Prior to the start of trial, the
state dismissed Count Fourteen. At the conclusion of the state’s case, the court granted
Blankenship’s Criminal Rule 29 motion to dismiss Count Thirteen of the Indictment. The
jury later returned a verdict of guilty on all twelve remaining charges.
{¶10} On May 2, 2016, Blankenship appeared before the court for purposes of
sentencing. Blankenship was ordered to serve a seven year prison sentence on Count
One; a 12 month prison sentence on Count Two; an 18 month prison sentence on Count
Three; an 18 month prison sentence on Count Four; a 12 month prison sentence on Count
Five; an 18 month prison sentence on Count Six; a 12 month prison sentence on Seven;
a 12 month prison sentence on Count Eight; a 12 month prison sentence on Count Nine;
an 18 month prison sentence on Count Ten; a 12 month prison sentence on Count
Eleven; and, a 12 month prison sentence on Count Twelve. Counts One, Two, and Three
were all ordered to be served consecutive to each other for an accumulated sentence of
nine and one-half years in prison. The remaining seven counts were all concurrent to
Counts One, Two, and Three.
{¶11} On July 18, 2015, this Court granted Blankenship leave to file his delayed
appeal.
Assignments of Error
{¶12} Blankenship presents four assignments of error for our consideration, Delaware County, Case No. 16 CAA 0024 6
{¶13} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT
APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO RULES OF
CRIMINAL PROCEDURE RULE 29 WHEN THE STATE FAILED TO PROVIDE
SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT.
{¶14} “II. THE DEFENDANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶15} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT
APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO RULES OF
CRIMINAL PROCEDURE RULE 29 WHEN THE STATE FAILED TO PROVE BEYOND
A REASONABLE DOUBT THAT THE CRIMINAL CONDUCT (OR ANY PART
THEREOF) WAS COMMITTED IN DELAWARE COUNTY.
{¶16} “IV. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN
THE COURT FAILED TO PROPERLY INFORM HIM OF THE DETAILS OF POST-
RELEASE CONTROL AT THE TIME OF SENTENCING AND WHEN THE COURT
FAILED TO PROPERLY INCORPORATE THE TERMS OF POST-RELEASE CONTROL
INTO THE SENTENCING.”
I & II.
Introduction.
{¶17} In his First, Second and Third Assignments of Error, Blankenship
challenges only his conviction on Count VII of the Indictment. Count VII of the
Indictment provided,
Count Seven: Delaware County, Case No. 16 CAA 0024 7
THE JURORS OF THE GRAND JURY of the State of Ohio, within
and for the body of the County of Delaware, on their oaths, in the name and
by the authority of the State of Ohio, do find and present that on or about
the 10th day of February, 2015 in Delaware County, Ohio, or by some
manner enumerated in Section 2901.12 of the Ohio Revised Code whereby
proper venue is placed in Delaware County, Ohio, JAMES BLANKENSHIP
AND CORBY CREECH, by force, stealth, or deception, did trespass in an
unoccupied structure, with purpose to commit therein any theft offense, as
defined in Section 2913.01 of the Revised Code, or any felony, this being
Breaking And Entering in violation of Section 2911.13(A) of the Ohio
Revised Code, a Fifth Degree Felony and against the peace and dignity of
the State of Ohio.
{¶18} In response to Blankenship’s request, the state provided the following
information in the Bill of Particulars filed February 4, 2016,
Count 7: (Delaware County)
On February 10, 2015, the defendant, in conjunction with Corby
Creech, in a continuing course of criminal conduct, did, by force, stealth, or
deception, trespass in an unoccupied structure, 4920 State Route 37 E,
Delaware, OH 43015, with the purpose to commit a theft offense therein.
Blankenship’s contentions.
{¶19} In his First Assignment of Error, Blankenship alleges that the trial court erred
in not granting his Crim. R. 29 motion for acquittal on Count VII of the Indictment at the
conclusion of the state’s case. In determining whether a trial court erred in overruling an Delaware County, Case No. 16 CAA 0024 8
appellant's motion for judgment of acquittal, the reviewing court focuses on the sufficiency
of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965,
974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991).
{¶20} In his Second Assignment of Error, Blankenship argues that his conviction
for Count VII of the Indictment is against the weight of the evidence.
{¶21} Blankenship argues that there is no evidence that he “or any other individual
associated with Appellant (under the State’s argument of Engaging in Criminal
Activity)committed a Breaking and Entering in regards to Count Seven of the
Indictment(Allegedly occurring at the Delaware County Humane Society) there is
absolutely zero evidence of this.” [Appellant’s Brief at 11].
Standard of Review.
{¶22} Our review of the constitutional sufficiency of evidence to support a criminal
conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also
McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming
this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,
¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.
{¶23} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by
constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d
89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of Delaware County, Case No. 16 CAA 0024 9
the greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other. It indicates clearly to the jury that the party having the burden of
proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue, which is to be established
before them. Weight is not a question of mathematics, but depends on its effect in
inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law
Dictionary (6th Ed. 1990) at 1594.
{¶24} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,
reversal on manifest weight grounds is reserved for “‘the exceptional case in which the
evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. Delaware County, Case No. 16 CAA 0024 10
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
{¶25} Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192
(1978).
{¶26} To be convicted of breaking and entering pursuant to R.C. 2911.13(A) the
trier of fact would have to find beyond a reasonable doubt that Blankenship by force,
stealth, or deception trespassed in an unoccupied structure, with purpose to commit
therein any theft offense, as defined in section 2913.01 of the Revised Code, or any
felony.
{¶27} On February 10, 2015, Deputy Robert Curren responded to the Delaware
County Humane Society at approximately 1:16 a.m. A loud, audible alarm had been
tripped. He had been dispatched when the Vector alarm company called to report a
possible break-in at that location. Upon his arrival, he located a door that had pry marks
and evidence of forcible entry. Part of the dead bolt was lying on the ground and the door
was ajar. Deputy Curren walked through the business, took photographs of the damage,
and made contact with the key holder Misty Bay.
{¶28} Ms. Bay testified that she was a manager at the Delaware County Humane
Society. After she received a call regarding a suspected break-in from Vector security,
she went to the location. She arrived approximately twenty-five minutes after the alarm. Delaware County, Case No. 16 CAA 0024 11
After Deputy Curren cleared the building, she walked through and discovered that the
east wing cat door had been broken. She discovered that some file cabinets and drawers
had been pulled out in the lobby, two of the dogs were not in their kennels and a set of
keys were not on the hook where they were customarily located.
{¶29} Ms. Bay testified that it appeared someone had forced entry, searched the
building, and moved property. Ms. Bay testified that she ultimately found nothing to be
missing. Ms. Bay testified there were motion sensors inside the business. She was able
to determine that the suspects entered through the east wing door, then moved
throughout the shelter, and ultimately exited through the dog room door. She testified the
damage present on the doors was not present prior to the break-in. She was further able
to tell by the timing of the security codes that the suspects were only in the shelter for
perhaps five minutes. Finally, she testified no one had authority to enter the shelter on
the date in question and no one had permission to cause the damage.
{¶30} A witness need not physically point out the defendant in the courtroom as
long as there is sufficient direct or circumstantial evidence proving that the defendant was
the perpetrator. See, State v. Jenks, 61 Ohio St.3d 259, 272–273, 574 N.E.2d 492 (1991);
United States v. Boyd, 447 Fed.Appx. 684, 690 (6th Cir. 2011) (collecting examples of
when “in-court identification is not required”).
{¶31} Circumstantial evidence is defined as ‘testimony not based on actual
personal knowledge or observation of the facts in controversy, but of other facts from
which deductions are drawn, showing indirectly the facts sought to be proved.’” State v.
Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black’s Law Dictionary
221 (5th Ed.1979). “Circumstantial evidence and direct evidence inherently possess the Delaware County, Case No. 16 CAA 0024 12
same probative value.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph one of the syllabus. “‘[C]ircumstantial evidence is sufficient to sustain a
conviction if that evidence would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005–Ohio–6046,
837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026
(1990).
{¶32} “For other-acts evidence to be admissible to prove identity, the ‘other-acts
evidence must be related to and share common features with the crime in question.’”
State v. Massey, 10th Dist. No. 99AP–1355, 2000 WL 1742072 (Nov. 28, 2000), quoting
State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the syllabus.
Evidence of other acts is admissible to prove identity if there is “substantial proof that the
alleged other acts were committed by the defendant.” Lowe at 530, 634 N.E.2d 616. See
also State v. Parnell, 10th Dist. No. 11AP–257, 2011-Ohio-6564, 2011 WL 6647293, ¶
31. Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts is
permitted to show proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, of the absence of mistake or accident. State v. Kirkland, 140 Ohio St.3d 73,
2014–Ohio–1966.
{¶33} In the case at bar, ample circumstantial evidence existed to allow the jury
to conclude that Blankenship and Creech were the individuals who gained access to the
Delaware County Humane Society on February 10, 2015.
{¶34} Beginning on January 19, 2015, break-ins began to occur in animal shelters
and humane societies. By February 18, 2015, sixteen such establishments had been
broken into in sixteen different counties in the state. Some of the premises had video Delaware County, Case No. 16 CAA 0024 13
surveillance, which consistently showed two males with their faces covered inside the
buildings. In some pictures, a white car similar to Blankenship’s could be seen in the
vicinity. Either Blankenship’s or Creech’s cell phones were determined to be in the vicinity
at the time of approximately eight of the break-ins. Creech was in possession of an orange
walkie-talkie at the time of his arrest. Creech testified that they tried using the walkie-
talkies to communicate with the driver during the break-ins. (T. at 696). Surveillance
footage from the Knox County break-in showed a suspect with an orange walkie-talkie.
(1T. at 99).
{¶35} Toni Beers testified that she was Creech’s girlfriend and the couple lived
with Blankenship during the time that the break-ins were occurring. Neither Beers,
Creech, nor Blankenship was working at the time. However, Blankenship and Creech
would pay the bills. Blankenship and Creech would leave the residence around 9:00 p.m.
and return around 3:00 a.m. on many days. In exchange for a guarantee of immunity
from prosecution by the state, Beers testified that on several days she went with them.
Blankenship and Creech would break in to humane society buildings. That was the only
type of business they broke into while she was present. She would drive them to various
humane societies in Blankenship’s white Grand Prix on some occasions, drop them off,
and pick them up after the commission of the offense. When they signaled her to pick
them up, they would often have money, medication, and pills.
{¶36} Beers testified that they were living in Morrow County at the time of the
offense and hit pretty much all of the adjoining counties around Morrow County at some
point. While Ms. Beers was able to specifically recall driving Blankenship and Creech to
the Ashland County and Marion County animal shelters, she could not recall all of the Delaware County, Case No. 16 CAA 0024 14
others. Finally, she testified she went out with Creech and Blankenship approximately
five to seven times, but Creech and Blankenship went out "a lot" without her to break into
businesses.
{¶37} Similarly, Creech testified that he was charged, pled guilty, and was
sentenced by Delaware County for his involvement in this case. He testified to breaking
into dog pounds and car washes during the relevant period. The following exchange took
place during Blankenship’s jury trial between the prosecutor and Creech,
Q. Let’s talk about your Delaware case here then if we can. What did
you do that caused you to get charged with a number of offenses in that
case?
A. Breaking into dog pounds and car washes.
Q. Okay. And were dog shelters and dog pounds and car washes the
only places you broke into during that time?
A. Yes.
Q. Do you recall some of the counties that you broke into businesses
in?
A. Hardin County, Morrow County, Marion County. I did Delaware
County.
4T. at 684-685. Further, Creech testified,
Q. And what did you go to prison for?
A. I went to prison out of Morrow County for burglary and
Delaware County breaking and entering. Delaware County, Case No. 16 CAA 0024 15
4T. at 683. Creech testified that after they had tried the break-in in Morrow County he
and Blankenship decided to keep going. (4T. at 687-688). They began to drive further
outward in search of dog shelters to break-in. Creech testified that Toni Beers would
accompany him and Blankenship to break-ins on occasion. Creech testified that he and
Blankenship broke into the Hardin County animal shelter and stole a dog during the
process because Blankenship wanted the animal. (4T. at 690). Creech plead guilty to
the break-in of the Delaware County Humane Society. (See, State’s Exhibit 20; 4T. at
701).
{¶38} In the case at bar, the break-ins involved a unique type of establishment.
They further occurred over a short period. Each offense involved a similar modus
operandi. Creech and Beers each admitted to committing a number of the break-ins and
were unsure as to others. Corroborating evidence as to the identity of the perpetrators
was presented in the form of cellular telephone records that pinpointed the location of
Blankenship and Creech near the location of several of the break-ins at or near the time
of the break-in. Identification of a vehicle matching the description of Blankenship’s car
at several of the sites was presented. Two humane societies in different counties were
broken into on January 19, 2015. Two more in different counties were broken into on the
same night on February 13, 2015. Three humane societies in different counties were
broken into on February 15, 2015. Two humane societies in two different counties were
broken into on February 16, 2015. The break-ins of humane society’s and animal shelters
appear to have stopped with the arrest of Creech and Blankenship. From this evidence,
the jury could find proof of motive, opportunity, intent, preparation, plan, knowledge, and
identity were the same or similar for all of the break-ins. Delaware County, Case No. 16 CAA 0024 16
{¶39} Competent, credible evidence was presented when viewed in the light most
favorable to the prosecution, that provides sufficient circumstantial evidence that
Blankenship was a participant in the break-in of the Delaware County Humane Society
on February 10, 2015. We hold, therefore, that the state met its burden of production
regarding each element of the crime of breaking and entering and, accordingly, there was
sufficient evidence to support Blankenship’s conviction on Count VII of the Indictment.1
{¶40} As an appellate court, we are not fact finders; we neither weigh the evidence
nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
competent and credible evidence, upon which the fact finder could base his or her
judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376
N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether
the judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d
517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is
in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th
1 Appellant does not challenge his convictions on any other count upon which the jury returned a guilty verdict. Delaware County, Case No. 16 CAA 0024 17
Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227
N.E.2d 212(1967).
{¶41} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.
99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722
N.E.2d 125(7th Dist. 1999).
{¶42} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),
paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86
L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d
646 (1983).
{¶43} Although Creech testified at trial that he did not believe he had committed
the break-in of the Delaware County Humane Society, the jury as the trier of fact was free
to accept or reject any and all of the evidence offered by the parties and assess the
witness’s credibility. The jury was also aware that Creech had pled guilty to the break-in
of the Delaware County Humane Society. "While the jury may take note of the Delaware County, Case No. 16 CAA 0024 18
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
not render defendant's conviction against the manifest weight or sufficiency of the
evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23,
2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714
(May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may
accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-
Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.
Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
{¶44} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor
created a miscarriage of justice in convicting Blankenship of the charge.
{¶45} Based upon the foregoing and the entire record in this matter, we find
Blankenship’s conviction on Count VII of the Indictment was not against the sufficiency
or the manifest weight of the evidence. To the contrary, the jury appears to have fairly
and impartially decided the matters before them. The jury as a trier of fact can reach
different conclusions concerning the credibility of the testimony of the state’s witnesses
and Blankenship and his witnesses. This court will not disturb the jury's finding so long
as competent evidence was present to support it. State v. Walker, 55 Ohio St.2d 208, Delaware County, Case No. 16 CAA 0024 19
378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was
convinced of Blankenship’s guilt.
{¶46} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime beyond a reasonable doubt.
{¶47} Blankenship’s First and Second Assignments of Error are overruled.
III.
{¶48} Because there is no evidence to connect Blankenship to the Delaware
County break-in, Blankenship posits in his Third Assignment of Error that it was improper
to conduct the jury trial on his Indictment in Delaware County.
{¶49} Section 10 of Article I of the Ohio Constitution requires that: “* * * [i]n any
trial, in any court, the party accused shall be allowed * * * a speedy public trial by an
impartial jury of the county in which the offense is alleged to have been committed * * *.”
Crim.R. 18(A) states that, “(t)he venue of a criminal case shall be as provided by law.”
{¶50} “Venue is not a material element of any offense charged. The elements of
the offense charged and the venue of the matter are separate and distinct. State v.
Loucks (1971), 28 Ohio App.2d 77, 274 N.E.2d 773, and Carbo v. United States (C.A.9,
1963), 314 F.2d 718. Yet, in all criminal prosecutions, venue is a fact that must be proved
at trial unless waived. State v. Nevius (1947), 147 Ohio St. 263, 71 N.E.2d 258.” State
v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343, 1345(1981).
{¶51} R.C. 2901.12 contains the statutory foundation for venue. The relevant
provisions of this section read, in pertinent part, as follows: Delaware County, Case No. 16 CAA 0024 20
(A) The trial of a criminal case in this state shall be held in a court
having jurisdiction of the subject matter, and in the territory of which the
offense or any element of the offense was committed.
(D) When the offense is conspiracy, attempt, or complicity cognizable
under division (A) (2) of section 2901.11 of the Revised Code, the offender
may be tried in any jurisdiction in which the conspiracy, attempt, complicity,
or any of its elements occurred.
(E) When the offense is conspiracy or attempt cognizable under
division (A)(3) of section 2901.11 of the Revised Code, the offender may be
tried in any jurisdiction in which the offense that was the object of the
conspiracy or attempt, or any element of that offense, was intended to or
could have taken place. When the offense is complicity cognizable under
division (A) (3) of section 2901.11 of the Revised Code, the offender may
be tried in any jurisdiction in which the principal offender may be tried.
(G) When it appears beyond a reasonable doubt that an offense or
any element of an offense was committed in any of two or more jurisdictions,
but it cannot reasonably be determined in which jurisdiction the offense or
element was committed, the offender may be tried in any of those
jurisdictions.
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be tried for all Delaware County, Case No. 16 CAA 0024 21
of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred* * *
{¶52} As we have found in our disposition of Blankenship’s First and Second
Assignments of Error, sufficient, credible evidence supports Blankenship’s conviction on
Count VII of the Indictment. As Blankenship was convicted of breaking-in to the Delaware
County Humane Society, venue for purposes of Blankenship’s jury trial was proper.
{¶53} Blankenship’s Third Assignment of Error is overruled.
IV.
{¶54} In his fourth assignment of error Blankenship asserts that the trial court
erred by failing to notify him at his sentencing hearing that his sentence included the
mandatory three-year term of post-release control and that the court failed to incorporate
that notice in its sentencing entry.
{¶55} Blankenship was convicted of multiple felonies, the most serious of which
is Count I of the Indictment, Engaging in a Pattern of Corrupt Activity. That offense is a
second-degree felony. R.C. 2923.32(B)(1). R.C. 2967.28(B)(2) mandates a mandatory
three-year period of post-release control be imposed upon a conviction for a second-
degree felony.
{¶56} In cases where, as here, an offender is subject to multiple periods of post-
release control, “the period of post-release control for all of the sentences shall be the
period of post-release control that expires last, as determined by the parole board or court.
Periods of post-release control shall be served concurrently and shall not be imposed
consecutively to each other.” R.C. 2967.28(F)(4)(c). Thus, in multiple-offense cases, the
sentencing court need only notify the defendant of the longest applicable period of post- Delaware County, Case No. 16 CAA 0024 22
release control. State v. Darks, 10th Dist. Franklin No. 12AP-578, 2013-Ohio-176, ¶11;
State v. Reed, 6th Dist. No. E–11–049, 2012–Ohio–5983, ¶ 12; State v. Buckner, 1st Dist.
No. C–100666, 2011–Ohio–4358, ¶ 18; State v. Ballou, 8th Dist. No. 95733, 2011–Ohio–
2925, ¶ 16, citing Durain v. Sheldon, 122 Ohio St.3d 582, 913 N.E.2d 442, 2009–Ohio-
4082, ¶ 1.
{¶57} Blankenship was not informed at the sentencing hearing or in the court’s
judgment entry that he is subject to a mandatory three-year period of post release control.
{¶58} Blankenship’s Fourth Assignment of Error is sustained.
{¶59} For the foregoing reasons, Blankenship’s convictions and sentence are
affirmed. However, we vacate the post release control portion of Blankenship’s sentence
and remand the matter for a hearing limited to the proper imposition of post release
control.
By Gwin, P.J.,
Wise, John, J., and
Wise, Earle, J., concur