[Cite as State v. Ingram, 2011-Ohio-6629.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96509
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES INGRAM DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-541399
BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 22, 2011 2
ATTORNEY FOR APPELLANT
Michael V. Heffernan 75 Public Square Suite 700 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Brett Kyker Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, James Ingram, appeals his conviction for theft, raising
the following two assignments of error:
{¶ 2} “I. Mr. Ingram’s conviction was against the manifest weight of the
evidence.
{¶ 3} “II. The inconsistent verdict in this case requires reversal.”
{¶ 4} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶ 5} In September 2010, Ingram was indicted on four counts: two counts of
burglary — one in violation of R.C. 2911.12(A) and one in violation of R.C. 3
2911.12(A)(3); one count of theft in violation of R.C. 2913.02(A)(1); and one count of
safecracking in violation of R.C. 2911.31(A). Ingram pleaded not guilty to the
indictment, and the matter proceeded to a jury trial where the following evidence was
presented.
{¶ 6} The victim, Marjorie Dixon, age 80, lived in Cleveland, where she had
resided for the last 40 years. In lieu of an insurance policy, Dixon stored $11,000 in
cash in a Brink’s home safe, unlocked, in her home. Dixon testified that the money was
intended to cover her funeral expenses following her death.
{¶ 7} Dixon is Ingram’s paternal grandmother. According to Dixon, no one
other than Ingram had a key to her house. She further testified that Ingram knew that
she kept $11,000 in cash in her house.
{¶ 8} On July 1, 2010, Dixon returned home from a weekend in Michigan and
found no signs of forced entry into her home but noticed that “somebody [had] been
rambling around.” She later checked her safe and discovered that the $11,000 was
missing. Dixon testified that, upon discovering that her money was gone, she “knew
James had taken it.” Dixon, however, decided not to confront Ingram. Shortly
thereafter, a bank statement addressed to Ingram was sent to Dixon’s residence. (Ingram
had used his grandmother’s address for purposes of the account.) Dixon opened the
bank statement and discovered that Ingram had over $9,000 in the bank, despite not
having ever held a job. 4
{¶ 9} The state also offered the testimony of Sandra Monsman, a Charter One
Bank representative from the Euclid office. Monsman testified that Ingram opened an
account with Charter One on June 28, 2010, depositing $9,900 in cash. Since that time,
there have been no other deposits made but several withdrawals. Monsman further
testified that “any deposit of $10,000 or more needs to be reported” to the federal
agencies and that Ingram’s deposit fell below that threshold.
{¶ 10} The state further offered as an exhibit a certified record showing that
Ingram had not filed any tax returns for 2007, 2008, or 2009.
{¶ 11} Shirley Ingram testified on her son’s behalf, stating that her son was a good
person who saved his money. Although she never knew her son to have a permanent
job, she testified that he had done “odds-and-ends jobs” and that he earned money selling
“oils and CDs.” On cross-examination, she acknowledged that Ingram’s last
employment was probably 20 years ago and that he had a prior felony conviction for drug
trafficking.
{¶ 12} Ingram testified on his own behalf, stating that he was 40 years old and that
he had always had a good relationship with Dixon — his grandmother. He explained
that he has always helped her and his father with the properties that they owned and
managed.
{¶ 13} In describing his current source of income, Ingram testified as follows: 5
{¶ 14} “Well, actually, what I do, I do landscaping for one of the persons at the
church. He got his own little landscaping thing, different houses. I sell oils always,
T-shirts, you know, mix tapes that DJs make and I save money. I mean, I don’t — it’s
not like, you know, I could save 3,000 or 4,000 a year, it’s a period of time, you know.”
{¶ 15} On cross-examination, Ingram clarified that he has not done odd jobs for his
father since the 1990s but that he has been earning money buying items wholesale, i.e.,
purses, t-shirts, oils, mix tapes, and selling them. He acknowledged that he opened the
Charter One account in June 2010 and that his other accounts had been nearly depleted at
that time. The activity on the other accounts revealed a consistent stream of withdrawals
but no deposits.
{¶ 16} Ingram further testified that he did not steal any money from his
grandmother. While he acknowledged that he did have a key to his grandmother’s
house, he testified that he returned the key “around” June 2010 and that other people had
keys to his grandmother’s house.
{¶ 17} The jury found Ingram guilty of a single count of theft with the furthermore
clauses that the victim was elderly and that the value of the property was more than
$5,000 but less than $25,000. The jury acquitted Ingram of the other counts, and the
trial court subsequently sentenced him to one year in prison. The trial court further
informed Ingram that he would be subject to three years of mandatory postrelease control.
Manifest Weight of the Evidence 6
{¶ 18} In his first assignment of error, Ingram argues that his conviction is against
the manifest weight of the evidence. He contends that the jury wrongly believed
Dixon’s testimony that he was the only one with a key to her house when there was
evidence demonstrating otherwise.
{¶ 19} In reviewing a claim challenging the manifest weight of the evidence, “[t]he
question to be answered is whether there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt.
In conducting this review, we must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
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.” (Internal quotes and citations
omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.
{¶ 20} The gravamen of Ingram’s argument is that the jury wrongly believed his
grandmother over him. But it is entirely within the jury’s province to assess the
credibility of the witnesses and believe one over another. Here, we cannot say that the
jury lost its way simply because it found Ingram’s testimony not credible. Indeed,
Ingram’s testimony was inconsistent with his own actions leading to his arrest, including
his claim that he “saved” the $9,900 over time despite his near depletion of his other bank
accounts and his lack of any consistent employment. Accordingly, after reviewing the
entire record, we conclude that this case is not the “exceptional case in which the 7
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[Cite as State v. Ingram, 2011-Ohio-6629.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96509
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES INGRAM DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-541399
BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 22, 2011 2
ATTORNEY FOR APPELLANT
Michael V. Heffernan 75 Public Square Suite 700 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Brett Kyker Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, James Ingram, appeals his conviction for theft, raising
the following two assignments of error:
{¶ 2} “I. Mr. Ingram’s conviction was against the manifest weight of the
evidence.
{¶ 3} “II. The inconsistent verdict in this case requires reversal.”
{¶ 4} Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶ 5} In September 2010, Ingram was indicted on four counts: two counts of
burglary — one in violation of R.C. 2911.12(A) and one in violation of R.C. 3
2911.12(A)(3); one count of theft in violation of R.C. 2913.02(A)(1); and one count of
safecracking in violation of R.C. 2911.31(A). Ingram pleaded not guilty to the
indictment, and the matter proceeded to a jury trial where the following evidence was
presented.
{¶ 6} The victim, Marjorie Dixon, age 80, lived in Cleveland, where she had
resided for the last 40 years. In lieu of an insurance policy, Dixon stored $11,000 in
cash in a Brink’s home safe, unlocked, in her home. Dixon testified that the money was
intended to cover her funeral expenses following her death.
{¶ 7} Dixon is Ingram’s paternal grandmother. According to Dixon, no one
other than Ingram had a key to her house. She further testified that Ingram knew that
she kept $11,000 in cash in her house.
{¶ 8} On July 1, 2010, Dixon returned home from a weekend in Michigan and
found no signs of forced entry into her home but noticed that “somebody [had] been
rambling around.” She later checked her safe and discovered that the $11,000 was
missing. Dixon testified that, upon discovering that her money was gone, she “knew
James had taken it.” Dixon, however, decided not to confront Ingram. Shortly
thereafter, a bank statement addressed to Ingram was sent to Dixon’s residence. (Ingram
had used his grandmother’s address for purposes of the account.) Dixon opened the
bank statement and discovered that Ingram had over $9,000 in the bank, despite not
having ever held a job. 4
{¶ 9} The state also offered the testimony of Sandra Monsman, a Charter One
Bank representative from the Euclid office. Monsman testified that Ingram opened an
account with Charter One on June 28, 2010, depositing $9,900 in cash. Since that time,
there have been no other deposits made but several withdrawals. Monsman further
testified that “any deposit of $10,000 or more needs to be reported” to the federal
agencies and that Ingram’s deposit fell below that threshold.
{¶ 10} The state further offered as an exhibit a certified record showing that
Ingram had not filed any tax returns for 2007, 2008, or 2009.
{¶ 11} Shirley Ingram testified on her son’s behalf, stating that her son was a good
person who saved his money. Although she never knew her son to have a permanent
job, she testified that he had done “odds-and-ends jobs” and that he earned money selling
“oils and CDs.” On cross-examination, she acknowledged that Ingram’s last
employment was probably 20 years ago and that he had a prior felony conviction for drug
trafficking.
{¶ 12} Ingram testified on his own behalf, stating that he was 40 years old and that
he had always had a good relationship with Dixon — his grandmother. He explained
that he has always helped her and his father with the properties that they owned and
managed.
{¶ 13} In describing his current source of income, Ingram testified as follows: 5
{¶ 14} “Well, actually, what I do, I do landscaping for one of the persons at the
church. He got his own little landscaping thing, different houses. I sell oils always,
T-shirts, you know, mix tapes that DJs make and I save money. I mean, I don’t — it’s
not like, you know, I could save 3,000 or 4,000 a year, it’s a period of time, you know.”
{¶ 15} On cross-examination, Ingram clarified that he has not done odd jobs for his
father since the 1990s but that he has been earning money buying items wholesale, i.e.,
purses, t-shirts, oils, mix tapes, and selling them. He acknowledged that he opened the
Charter One account in June 2010 and that his other accounts had been nearly depleted at
that time. The activity on the other accounts revealed a consistent stream of withdrawals
but no deposits.
{¶ 16} Ingram further testified that he did not steal any money from his
grandmother. While he acknowledged that he did have a key to his grandmother’s
house, he testified that he returned the key “around” June 2010 and that other people had
keys to his grandmother’s house.
{¶ 17} The jury found Ingram guilty of a single count of theft with the furthermore
clauses that the victim was elderly and that the value of the property was more than
$5,000 but less than $25,000. The jury acquitted Ingram of the other counts, and the
trial court subsequently sentenced him to one year in prison. The trial court further
informed Ingram that he would be subject to three years of mandatory postrelease control.
Manifest Weight of the Evidence 6
{¶ 18} In his first assignment of error, Ingram argues that his conviction is against
the manifest weight of the evidence. He contends that the jury wrongly believed
Dixon’s testimony that he was the only one with a key to her house when there was
evidence demonstrating otherwise.
{¶ 19} In reviewing a claim challenging the manifest weight of the evidence, “[t]he
question to be answered is whether there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt.
In conducting this review, we must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
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.” (Internal quotes and citations
omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.
{¶ 20} The gravamen of Ingram’s argument is that the jury wrongly believed his
grandmother over him. But it is entirely within the jury’s province to assess the
credibility of the witnesses and believe one over another. Here, we cannot say that the
jury lost its way simply because it found Ingram’s testimony not credible. Indeed,
Ingram’s testimony was inconsistent with his own actions leading to his arrest, including
his claim that he “saved” the $9,900 over time despite his near depletion of his other bank
accounts and his lack of any consistent employment. Accordingly, after reviewing the
entire record, we conclude that this case is not the “exceptional case in which the 7
evidence weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d
380, 387, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 21} The first assignment of error is overruled.
Inconsistent Verdicts
{¶ 22} In his second assignment of error, Ingram argues that the jury’s guilty
finding on the theft count cannot stand because it is inconsistent with the jury’s acquittal
on the two burglary counts. He contends that, because the jury found him not guilty of
the burglary counts, it should have also acquitted him of the theft count. We disagree.
{¶ 23} First, we fail to see any inconsistency between these verdicts. The jury’s
finding of guilt on the theft count did not preclude a not guilty finding on the burglary
counts. Indeed, the jury could have easily believed that Ingram was not trespassing in
his grandmother’s home when he stole the money.
{¶ 24} Second, even assuming that these verdicts were inconsistent, this is not
grounds for reversal. Inconsistent verdicts on different counts of a multicount
indictment do not justify overturning a verdict. State v. Gapen, 104 Ohio St.3d 358,
2004-Ohio-6548, 819 N.E.2d 1047, ¶137. “The several counts of an indictment
containing more than one count are not interdependent and an inconsistency in a verdict
does not arise out of inconsistent responses to different counts, but only arises out of
inconsistent responses to the same count.” Id., quoting State v. Adams (1978), 53 Ohio
St.2d 223, 374 N.E.2d 137, paragraph two of the syllabus. 8
{¶ 25} The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of 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 conviction having
been affirmed, any bail pending appeal 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.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR