State v. Ivy

2021 Ohio 3970

• Court: Ohio Court of Appeals
• Decided: November 4, 2021
• Docket: 21 CAA 09 0034
• Status: Published

Opinion

[Cite as State v. Ivy, 2021-Ohio-3970.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 20 CAA 09 0034 BRANDON T. IVY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County Court of Common Pleas, Case No. 20CR I 06 0375

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 4, 2021 APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA SCHIFFEL Delaware County Prosecutor WILLIAM T. CRAMER By: Elizabeth Matune 470 Olde Worthington Road 149 North Union Street Suite 200 Delaware, OH 43015 Westerville, OH 43082 Delaware County, Case No. 20 CAA 09 0034 2

Gwin, J.,

{¶1} Defendant-appellant Brandon T. Ivy [“Ivy”] appeals his convictions and

sentences after a jury trial in the Delaware County Court of Common Pleas.

Facts and Procedural History

{¶2} Stephanie Hunter met Ivy while she was living in Chicago. 3T. at 394.1

Shortly after Stephanie returned to her mother Carolyn Hunter's home in Powell, Ohio,

Ivy came to visit her. Eventually Ivy relocated. Ivy and Stephanie initially lived with

Carolyn.

October 20, 2017: Stephanie reports that Ivy refuses to leave and that Ivy

had damaged her car

{¶3} On October 20, 2017, Stephanie went to the City of Powell police station

to complain that Ivy had kicked her car and caused damage. She said that Ivy was

staying at her house on Thornbury and she wanted him to leave, but he would not.

9T. at 1116-1117. Stephanie told the police that she felt trapped in the garage by Ivy

and had to spray mace to escape. 9T. at 1120. Stephanie believed that she had locked

Ivy in the garage; however, when officers arrive at the address he was not there. 9T.

at 1120-1121. Officers found Ivy in Stephanie’s bedroom inside of the house. 9T. at

1121.

{¶4} The police escorted Ivy out of the house with a tub of his personal

items. Stephanie called a cab for Ivy. Ivy said he wanted to work things out with

1The transcript of Ivy’s jury trial will be referred to as “__T. at __”, signifying the volume number and the page number. Delaware County, Case No. 20 CAA 09 0034 3

Stephanie and did not want to go. Ivy tried to talk with Stephanie, but she said no.

9T. at 1123-1125.

{¶5} That evening, the police were called back to the residence because Ivy

was back on the property. 9T. at 1125. Ivy was outside the house and said he wanted

to get his phone. Everyone at the residence wanted him gone, so he was arrested for

trespass and taken to jail. 9T. at 1126.

January 2018: Ivy refuses to leave and makes threats

{¶6} On January 5, 2018, Officer Matt Cook of the Powell Police Department

responded to a call at the Thornbury address alleging that Ivy was refusing to leave and

making threats. 9T. at 1131. Stephanie was afraid and emotional. Stephanie told

Officer Cook that she and Carolyn both wanted Ivy to leave, but he refused.

Stephanie claimed that Ivy threatened to harm her and kill her son Brandon, and she

believed him. 9T. at 1132.

February 2018: Ivy ejected from Young's office

{¶7} Leslie Young had been with Carolyn for fourteen years and lived with her

and Stephanie's adult son, Brandon. After moving out of Carolyn’s home, Ivy and

Stephanie resided for a time at Young’s office. 3T. at 396-397. The couple was asked to

leave the office after other tenant’s complained that the couple were up all night arguing.

3T. at 398.

{¶8} During this time, Ivy worked for Young at the office. 3T. at 401. Sometime

during this period, Stephanie became angry at Ivy for constantly calling her. She

confronted Ivy at the office. Young saw the en suing argument between I v y and

Stephanie outside the office devolve into a shoving match, which resulted in Ivy Delaware County, Case No. 20 CAA 09 0034 4

pushing Stephanie down to the ground. 3T. at 401-403. Young told the police that Ivy

was sleeping at the office, calling Stephanie, getting really loud, and. upsetting the

other businesses. The officers from the City of Powell police department helped Ivy leave

and took him to his car. 9T. at 1127-1128.

Late 2018: Stephanie and Ivy share an apartment

{¶9} The couple next moved to the Montgomery Court apartment complex. 3T.

at 370; 398. Carolyn witnessed Ivy for no particular reason pick up a chair and throw it

across the room. 3T. at 370-371. He then threw a small table.

{¶10} Jennifer Parker a neighbor of the couple at the Montgomery Court

apartments saw the police escort Ivy off the property three times. 8T. at 999. She saw Ivy

return to the property after the police had gone. Id. Parker recalled seeing a broken

window at the couple’s apartment and hearing Ivy screaming in pain for her to call 9-1-1

because he had a piece of the glass from the window lodged in his buttocks. 8T. at 1000.

{¶11} Several times Stephanie came to Parker upset, telling her that she wanted

to get away from Ivy. 8T. at 998. Stephanie began bringing small items to Parker’s

apartment for Parker to hold until Stephanie could move out. Parker claimed that

Stephanie did this to keep Ivy from destroying the property.

{¶12} Aaron Channell the maintenance technician for the Montgomery Court

apartments helped Stephanie try to fix her damaged property multiple times. The

maintenance man had to fix Stephanie's door after it had been kicked in and fix a

broken window. 8T. at 1008-1009. On one occasion, Channell heard a commotion,

walked up to the apartment, and overheard Ivy threatening to kill Stephanie's family

and then Stephanie. 8T. at 1013. Delaware County, Case No. 20 CAA 09 0034 5

{¶13} Ivy threatened Channell when he found Stephanie hanging out with him

and other residents. 8T. at 1009. Ivy told Channell stay away, called him names,

and said he would put him under. Ivy backed down when the maintenance man stood

up to him. Id.

{¶14} When Stephanie decided to move out in late 2018, Channell helped her

plan the move. Stephanie was in tears and it looked like it had been a rough evening. She

said she was done dealing with Ivy and was leaving. They arranged for a moving company

that helped people move in a hurry while somebody was away. 8T. at 1010. Ivy continued

to stay at the apartment even after Stephanie turned in her keys. Ivy was still getting

mail there and locked himself in to try to avoid getting kicked out.

{¶15} The state presented recorded phone calls between Stephanie and Ivy from

January 27, 2019. During the calls, Ivy told Stephanie that if she did not do what he

wanted, he would hit her. The state also presented text messages from Ivy saying that

she had him "so mad right now." T. at 816-821. The state presented recordings of Ivy

threatening to kill Stephanie after she moved out of their apartment. 8T. at 825-826. Ivy

can be heard threatening to kick in Carolyn's door and kill everyone, including himself.

Ivy said that Stephanie had ruined his opportunities, and all he wanted to do was kill her

and that was the only thing that made him feel better. State’s Exhibits 14, 15 and 16.

{¶16} After Stephanie moved out of their apartment, Ivy asked Young where she

was, but he did not know. Ivy told Young that he wished Carolyn would die because she

was in the way of his relationship with Stephanie. Ivy said that if he did not find out where

Stephanie was living, he was going to get into Carolyn's house and kill Carolyn and

Brandon. Young warned Carolyn and Stephanie about the threat. 3T. at 407-410. Delaware County, Case No. 20 CAA 09 0034 6

February 2019: Ivy breaks into Carolyn's house

{¶17} On February 8, 2019, Stephanie filed for a protection order against Ivy. 12T.

at 828-829. She was granted an ex parte protection upon filing. Id. A full protection order

would later be granted on April 8, 2019.

{¶18} On February 28, 2019, officers responded to a call that Ivy was an unwanted

person at Carolyn’s house. The officers also had the protection order to be served on Ivy.

The officers were told that Ivy was upstairs. The officers went inside and called for Ivy to

come down but he did not. They eventually found him hiding upstairs in a bedroom closet.

Stephanie and Carolyn just wanted Ivy given a trespass warning, so the officers warned

Ivy and served the protection order. 3T. at 38; 4T. at 531-532; 9T. at 1135-1137.

March 2019: Ivy again breaks into Carolyn's house

{¶19} In March 2019, Carolyn and Brandon came home to find damage to the

back door and the basement door cracked open. They thought someone was inside the

house and called the police. Before the police arrived, Ivy came running out of the house.

They told him they had called the police and he disappeared. 3T. at 377-379.

{¶20} On March 22, 2019, police officers and a K-9 officer, Axle, responded to

Carolyn's house for a reported burglary in progress. Carolyn reported that Ivy had run

from their house, but she was not sure if he had left. The officers began searching the

outside of the house with Axle and found nothing but a damaged door, which appeared

to be the point of entry. They called for Ivy inside the house and went inside with Axle.

While Axle was searching, Ivy came up from the basement. The officers handcuffed Ivy

and took him to the police station. At the station, Ivy asked if they could get him out of the

burglary charge and claimed that Stephanie set him up. Ivy told the detective that he just Delaware County, Case No. 20 CAA 09 0034 7

wanted to talk to Stephanie and admitted to hiding in a box in the basement. 11T. at

1138-1140; 11T. at 1145; 11T. at 1149-1150; 12T. at 1204-1206.

{¶21} The prosecution presented a series of text messages from Ivy to

Stephanie in February and March 2019. 7T. at 831-837. A sampling of these

messages include,

“I rather die before I go to jail”

“This is the end of the rope for me you know I don’t want to go back

to Chicago I’ll die first”

“You gotta think about your family before you try to fuck somebody

up because if they can’t get you they going to get your family calling the

police is not the answer”

“I’m ready to kill myself" followed by "U first"

"I really hate u I wish u wood [sic.] die the thing a make me fill

[sic.]better"

"I don’t care if I'm free I don't care if I get locked up only thing I want

to see is you in a casket"

"Only thing a [sic.] make me feel better is me driving a knife threw

[sic.]your chest"

7T. at 831-837; State’s Exhibit 128.

{¶22} After Ivy broke into Carolyn's home, Stephanie told Ivy where she was living

because she was afraid Ivy would kill Carolyn. 3T. at 409-410.

June 2019: Ivy arrested at Powell Festival; holds Stephanie at knifepoint Delaware County, Case No. 20 CAA 09 0034 8

{¶23} On June 21, 2019, Carolyn went with Stephanie to the Powell Festival. Ivy

went to the festival separately, but met with them to get something to eat. While they were

eating, the police arrested Ivy for violating the protection order. When Ivy was arrested,

Stephanie told the police that she believed the protection order was cancelled.

{¶24} While Ivy was in jail, he asked Young whether Stephanie was seeing

someone else because she had not been answering his calls. Ivy told Young that he

would rather see Stephanie dead than have her be with someone else. 3T. at 408-409.

{¶25} On June 24, 2019, a couple days after the Powell Festival, Carolyn and

Young picked Ivy up from the jail to take him to a shelter. Ivy told them he had a job at a

local restaurant, so they dropped him off and proceeded to Stephanie’s apartment. When

they got there, they saw Ivy walk up and enter the apartment. Ivy saw them sitting in their

car, but did not say anything to them. Carolyn went up to the apartment, but the door was

locked. She could hear things being thrown inside the apartment and became worried.

She pounded on the door and tried to call Stephanie.

{¶26} Young testified that when they got to Stephanie's apartment, Ivy was

running in ahead of them. Stephanie opened the door. When she saw Ivy she tried

to close the door and told him he was not supposed to be there. Ivy pushed his way

in and locked the door. Carolyn and Young banged on the door until Stephanie

eventually spoke with them through the door to say she was fine and they should go

home. They refused to leave until they saw her and eventually called the police. 3T.

at 411-416.

{¶27} When police arrived, they could not get any response from inside the

apartment. The officers kicked the door in and found that chairs and a table had been Delaware County, Case No. 20 CAA 09 0034 9

pushed against the door. The officers cleared the apartment and found one of the

bedrooms was locked. An officer called through the door and this time Stephanie

responded. Within a few seconds, Stephanie cracked open the door and was pulled

from the room. Ivy then opened the door and came out. The bed and box spring had

been pushed against the bedroom door. Ivy acted nonchalant and said he was just

there to get some of his belongings. The police subsequently learned that Ivy was

holding Stephanie hostage with a steak knife, which they found hidden under the

mattress. Stephanie was in shock and had a bruise forming on her face. Stephanie

said Ivy repeatedly punched her in the face. Stephanie thanked the officers for

coming because she was not sure what may have happened otherwise. 4T. at 533-

534; 10T. at 1215-1227, 1234. While incarcerated for this offense, I v y told Young that

he would rather see Stephanie dead than with someone else. 3T. at 408-409.

November 22, 2019: Ivy strangles Stephanie causing her death

{¶28} Ivy was released from jail on November 14, 2019. 3T. at 336; 354-356.

Carolyn was staying with Stephanie at her apartment at this time, recuperating from a

hospital stay. Ivy had been left at a grocery store near Stephanie's apartment, so she

picked him up. Carolyn and Stephanie tried to get Ivy somewhere else to stay, like a

shelter, however, it was too late in the evening.

{¶29} Aaron Howard, Ivy's probation officer from a prior conviction involving

Stephanie, testified that when Ivy first reported for community control supervision, he said

that his sister was taking him to a shelter to stay, but he could not identify the shelter. Ivy

was supposed to call back the next day with the name of the shelter, but did not. The

probation officer called Ivy's sister and learned that he was staying with Stephanie. The Delaware County, Case No. 20 CAA 09 0034 10

probation officer then called Stephanie, who put Ivy on the phone. Ivy said he was going

to stay with Stephanie until he could find a shelter and Stephanie did not object. At that

time, there was no protection order in place or any other orders that would prevent Ivy

from having contact with Stephanie. 3T. at 335-339.

{¶30} On November 22, 2019, Stephanie called Ivy’s probation officer and said

she wanted Ivy to move out because he was doing things that concerned her. Stephanie

was at a funeral at the time of the call and Ivy was with her. Stephanie had the phone on

speaker so that the probation officer could speak directly with Ivy. Ivy initially denied that

he was asked to leave, but Ivy agreed to leave after Stephanie confirmed that she wanted

him to leave. At the time, the probation officer had no basis to charge Ivy with a

violation, but he called the sheriff and local police to warn them of the situation. 3T. at

339-343.

{¶31} On the way home from the funeral, the plan was to try and find a shelter for

Ivy because he needed to leave Stephanie's apartment. 3T. at 361. They did, however,

stop by Stephanie's apartment at her request. Id. Carolyn was the driver that day.

{¶32} When they pulled up to the apartment, Stephanie got out of the car and

went upstairs to the apartment. A few minutes later, Ivy said something to the effect of

needing to use the bathroom and proceeded to exit the car and into the apartment. 3T. at

362-363. Believing Stephanie only intended to be there a few minutes, Carolyn remained

in the car.

{¶33} After about fifteen minutes or more passed, Carolyn had grown concerned

enough to get out of the car and see what was going on. When she arrived at the

apartment door, the door was locked. 3T. at 363. Carolyn used her key to unlock the door. Delaware County, Case No. 20 CAA 09 0034 11

Id. When she opened the door, she saw Ivy standing right in front of the door. He did not

say a word to Carolyn, but instead brushed right past her and fled the apartment.

{¶34} Carolyn was worried because Stephanie's pocketbook was open on a

table. Carolyn called for Stephanie, searched the apartment, and found the bathroom

door locked. Carolyn called Young and the police.

{¶35} Deputy Maxwell Newman from the Delaware County Sherriff’s Office arrived

first. 2T. at 230. When he tried and failed to get a response from behind the locked

bathroom door, he forced his way into the bathroom where he found Stephanie's body

lying on the bathroom floor. She was unresponsive and did not have a pulse, although

her body was warm to the touch. Id. at 232-233. Deputy Newman began CPR while he

waited on medics. Id. at 233-234. Once Deputies Siegel and Lee arrived, Deputy Newman

used an automated external defibrillator to again check for a pulse. Id. at 234-235. There

was none detected. Id. at 236. Because the device found no heart activity the machine

advised no shock was recommended.

{¶36} Deputy Lee noticed swelling to Stephanie's cheekbone area that was

turning purple. While doing CPR, the deputy noted ligature marks on Stephanie’s neck.

A second deputy also saw ligature marks on Stephanie’s neck and maybe some light

abrasions on her face. 4T. at 444-445. Deputy Aaron Siegel retrieved an Automatic

External Defibrillator [“AED’] device and applied it to Stephanie; however, the machine

advised no shock. 4T. at 446-447. The machine issues a “no shock’ advisement when

the machine is unable to detect any heart activity. 4T. at 446- 47; 466-467.

{¶37} Benjamin Lovell a firefighter paramedic with the Liberty Township Fire

Department helped carry Stephanie from the bathroom to the hallway to continue Delaware County, Case No. 20 CAA 09 0034 12

resuscitation efforts. 4T. at 464. The paramedics placed their own more advanced AED

machine on Stephanie. Id. at 466-467. The machine found no electrical activity in the

heart. Id. at 465-466. Lovell then attempted an endotracheal intubation. In doing so, he

noticed abnormal swelling and blood within the upper airway of Stephanie’s throat. 4T. at

474. Endotracheal intubation requires the paramedic to insert a polished piece of metal

with rounded edges referred to as a “Mac blade” just above the epiglottis and raising the

epiglottis up to expose the vocal cords. 4T. at 471-472. A soft tube is then maneuvered

into the trachea, where a small balloon is inflated to seal the trachea. Id. A bag is then

squeezed to push air into the lungs to breath for the patient. 4T. at 472. Lovell attempted

to get the tube into the trachea, but missed the first time and ended up in the

esophagus. 4T. at 475. When the paramedics were unable to get any lung sounds,

they realized they were in the wrong tube in the throat and pulled it out to try again.

They resumed pumping air with a bag valve mask and were going to try again to

intubate Stephanie in the truck. Id. Lovell admitted that putting the tube in the wrong

way can cause swelling and some bleeding. 4 T . a t 5 0 1 . However in his opinion,

there was no injury from the failed attempt in this case. 4T. at 518-519.

{¶38} When the paramedics got Stephanie into the ambulance, another

paramedic, in accordance with standard protocol, attempted the intubation. 4T. at

477. This attempt was successful. The team of paramedics began IVs with

epinephrine and utilized a mechanical device for CPR chest compressions. 4T. at

478-480. Once they had the equipment in place, they proceeded to a medical facility

and arrived within five minutes. Delaware County, Case No. 20 CAA 09 0034 13

{¶39} As they arrived at the emergency room, Lovell began noticing blood

coming up the tube when air would come out. The medic testified that the blood had

to be coming from below the tube and could not have been from anywhere that they

made contact with while intubating Stephanie. The medic explained that once the

tube is in place, there is a small air balloon that is inflated around it that seals the air

passage. As a result, it was impossible for blood to have come from anywhere other

than below the tube. 4T. at 485-487. The paramedic further noted injuries to the head

and neck, including red splotches, or petechial, around the eyes and cheeks, which

is normally a sign of strangulation. The paramedic noted a ring of discoloration with

abrasions around the neck and multiple contusions and bruises around the face. 4T.

at 493-495.

{¶40} The Dr. Imran Shaikh the emergency room physician who attend

Stephanie noted blood in the tube, but did not know where it came from. The doctor

verified that the tube was in the right location and suctioned out the tube to make sure

Stephanie was getting oxygen. The doctor said blood in the tube during a cardiac

arrest was common and not a concern for treatment purposes. 5T. at 576-580. The

emergency room team worked on Stephanie for nineteen minutes but were unable to

restart her heart and declared her deceased. 5T. at 587-588. Dr. Shaikh testified that

when someone is strangled, it cuts off oxygen to the brain and causes their heart to

stop. 5T. at 593.

Ivy goes to the police station

{¶41} Ivy rode a bike to the Powell Police Department. Ivy’s arrival at the

Powell Police Department was captured on State's Exhibit 161. Upon arrival, Ivy set Delaware County, Case No. 20 CAA 09 0034 14

his bicycle down. Ivy disregards an emergency call box and instead looks in a

window. Ivy walks away from the Police Department fifty seconds into the video. After

approximately six minutes, Ivy pulled the fire alarm in the lobby in order to get the

attention of an officer.

{¶42} As the first officer entered the lobby, he saw Ivy stepping from a

community room into the lobby. 4T. at 536; 539. The officer asked Ivy if he had any

weapons on him. Id. at 539. Ivy responded “no”; however, Ivy then asked the officer

to handcuff him. Id. The officers again asked if he had any weapons on him, and he

again asked to be placed in handcuffs. Id. at 539-540. This time the officers obliged

and placed Ivy in handcuffs. Id. at 540. Once handcuffed, officers asked Ivy what

happened. Id. He answered that he went through Stephanie's phone, got into an

argument with her about what he saw, he told her he still wanted a relationship, she

told him to leave, she "swung on him," and then he "blacked out." Id.

{¶43} Ivy was held at the Powell station until the Delaware County Sheriff's

Office came to take custody of him. Detective Rusty Yates interviewed Ivy and noticed

that he had scratches on his arms and face. 6T. at 762. Ivy admitted choking Stephanie,

but denied hitting her. 6T. at 785; 816. After the interview, Ivy was served with charges

and agreed to provide DNA and urine samples. Id. at 777-778. At that point, Ivy said that

he was not completely honest because there would be evidence of messages of him

begging Stephanie to take him back. Ivy also made a call to his sister and told her that he

strangled Stephanie. 6T. at 786.

{¶44} After additional investigation, Detective Yates returned to the jail and

interviewed Ivy a second time. 6T. at 782. During the second interview, Ivy said he Delaware County, Case No. 20 CAA 09 0034 15

would have called for help but his phone did not have service because his phone

was prepaid and was out of minutes. Detective Yates testified that cell phone analysis

provided GPS activity for Ivy's phone and the GPS would not be available if his phone

were dead. Yates later testified that Ivy said he tried to power his phone on to get

help for Stephanie, but his phone was dead.

{¶45} The jury was shown video of Ivy's police interview. During the video, Ivy

claimed he just went to the bathroom and Stephanie burst in on him complaining that he

was taking too long. He cussed her out and she hit him in the face. Ivy claimed he blanked

out, but admitted choking Stephanie. Ivy said he tried to call the police, but his phone was

dead and Stephanie's phone was locked. Ivy said he loved Stephanie, did not mean for

this to happen, and cried during the interview. During the video, Ivy called his sister and

told her that he got into an argument with Stephanie, Stephanie hit him, and then he

strangled her, and the police were saying Stephanie was dead. At the end of the

video, Ivy cried and said he has "mental health" and needs medicine. State’s Exhibit

147; 6T. at 775.

{¶46} The jury also heard recordings of jail phone calls from a few days after

Ivy's arrest. During the calls, Ivy said they were arguing because he went through

Stephanie's phone and found her boyfriend. At the funeral, Stephanie told him he

had to leave. When Ivy was in the bathroom after the funeral, Stephanie busted in.

They argued a little and Stephanie swung at him. Ivy grabbed her by the neck and

choked her. Ivy said it was not long, but she could not breathe after he let go. Ivy said

his phone was dead and he could not access her phone, so he rode a bike to the

police station, banged on the windows, and pulled the fire alarm. Ivy said he closed Delaware County, Case No. 20 CAA 09 0034 16

the door so that Carolyn would not see Stephanie and have a heart attack. State’s

Exhibit 133; 150.

The Forensic Evidence

{¶47} Stephanie's autopsy revealed a number of external injuries. She

exhibited petechial hemorrhages, or small hemorrhages on the face that are

commonly seen in victims of strangulation. 8T. at 930; 945. The skin on her face was

mottled and purple, a contrast to the skin elsewhere on Stephanie's body. Id. at 947.

Her neck displayed some bruises and small abrasions. Id. at 948. She had linear

contusions on both sides of her neck and contusions on both sides of her chin. Id. at

948-949. There were bilateral scleral hemorrhages on both upper and lower eyelids.

Id. at 955. All of these external injuries were consistent with a strangulation death. Id.

at 930, 945-955. She also had some abrasions on her abdomen. Id. at 952.

{¶48} The muscles in the area of Stephanie's temple showed a hemorrhage

that correlated to some kind of injury to the area. Id. at 965-967. Her lungs were filled

with blood and fluid, so much so that they were more than twice the weight of normal,

healthy adult lungs. Id. at 968. Pulmonary edema has a number of causes, one of

which is strangulation. Id. at 969-970.

{¶49} The combination of these injuries led Dr. Russell Uptegrove the forensic

pathologist at the Montgomery County Coroner’s Office to the conclusion that

Stephanie was strangled to death. Id. at 975-976. The pathologist found no injuries

to the trachea or esophagus. 8T. at 959-960; 977 DNA samples taken from

Stephanie's fingernails contained two major contributors, which were consistent with Delaware County, Case No. 20 CAA 09 0034 17

Stephanie and Ivy. 9T. at 1077-1080. Dr. Mark Hickman, the Delaware County

Coroner agreed with the cause of death as strangulation. 10T. at 1192-1193.

{¶50} Dr. William Smock, an expert on strangulation testified on behalf of the

state. Dr. Smock opined that, based on his extensive training and experience, the

injuries to Stephanie’s neck muscles uncovered in the layered neck dissection

demonstrate that a significant amount of pressure was exerted on her neck during

the strangulation. 10T. at 1284-1285. Dr. Smock also related a general timeline of

how strangulation effects an individual:

After 5 to 10 seconds, a victim will lose consciousness; the

average time to unconsciousness is 6.8 seconds.

Shortly after that, the victim may experience an anoxic seizure as

brain damage begins to set in

At 15 seconds, the victim may lose bladder control and urinate

At 30 seconds, the victim may lose bowel control and defecate

At some point between 62 seconds and 157 seconds, the victim

will die

10T. at 1266-1267. He further explained that if the perpetrator lets go of the victim’s

neck, the timeline starts over before these points are reached. Id. at 1288. In addition

to those timed events, Dr. Smock also explained that as a person is strangled, their

eyes bulge and their face turns blue. Id. at 1272; 1282.

{¶51} After reviewing all evidence related to Stephanie’s death, Dr. Smock's

expert opinion was that she was strangled to death via continuous pressure applied

to her neck for over a full minute. Id. at 1296-1297. Delaware County, Case No. 20 CAA 09 0034 18

Ivy is Indicted

{¶52} In November 2019, Ivy was indicted in case number 19 CRI 11 0789

with felony murder in violation of R.C. 2903.02(B) and murder in violation of R.C.

2903.02(A), both unclassified felonies and both with repeat violent offender

specifications under R.C. 2941.149.

{¶53} In June 2020, an indictment was filed in the current case alleging five

counts: (1) aggravated murder in violation of R.C. 2903.01(A), an unclassified felony;

(2) felony murder in violation of R.C. 2903.02(B), an unclassified felony; (3) murder

in violation of R.C. 2903.02(A), an unclassified felony; (4) felonious assault in violation

of R.C. 2903.11(A)(1), a second degree felony; and (5) menacing by stalking in

violation of R.C. 2903.211(A)(1), a fourth degree felony. All counts included a repeat

violent offender specification under R.C. 2941.149.

{¶54} The state was permitted to amend the indictment to remove the

specification from count five and to correct case numbers listed for prior offenses in

the other specifications. The 19 CRI 11 0789 case was subsequently dismissed

without prejudice and those filings were transferred to the current case.

{¶55} Ivy entered a not guilty plea on the superseding indictment, and he later

officially withdrew his intention to pursue his not guilty by reason of insanity plea.

Judgment Entries filed June 26 and July 20, 2020.

Ivy decides to represent himself

{¶56} Just prior to trial, defense counsel moved to withdraw, noting that Ivy

expressed a desire to replace defense counsel but then Ivy said he wanted to keep

counsel so he could claim ineffective assistance of counsel on appeal. Motion to Delaware County, Case No. 20 CAA 09 0034 19

Withdraw, filed July 7, 2020. [Docket Entry No. 33]. On the first day of trial, after jury voir

dire and during the first witness, Ivy interrupted the proceedings to complain that his

attorneys did not ask the questions he wanted. Ivy asked to represent himself. 2T. at 247-

250; 263-277. During a sidebar, the trial court decided to complete the last witness for

the day before addressing Ivy's request in detail. Id. The next day, after extensive

questioning and admonishing from the trial judge, Ivy filed a written waiver of his right

to counsel. 3T. at 282- 319. [Docket Entry No. 54]. Ivy thereafter proceeded pro se

with standby counsel appoint by the trial court.

The jury finds Ivy guilty of all counts

{¶57} At the end of trial, Ivy reiterated his prior attorneys' requests for jury

instructions on self-defense and involuntary manslaughter as a lesser included

off ense. The trial court granted the request and instructed the jury accordingly.

{¶58} The jury found Ivy guilty of all five charges. The trial court took evidence on

the repeat violent offender specifications at the August 10, 2020, sentencing hearing.

Finding the specifications proven, the court merged Counts One, Two, Three, and Four.

The state elected to proceed on Count One, Aggravated Murder, for which the Court

imposed life without the possibility of parole. The repeat violent offender specification was

subsumed by the life sentence. Ivy was also ordered to serve 18 months on the Menacing

by Stalking charge.

Assignments of Error

{¶59} Ivy raises three Assignments of Error, Delaware County, Case No. 20 CAA 09 0034 20

{¶60} “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE FEDERAL

AND STATE CONSTITUTIONS WERE VIOLATED BY A CONVICTION FOR

AGGRAVATED MURDER THAT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶61} “II. APPELLANT’S CONVICTION FOR AGGRAVATED MURDER WAS

NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

{¶62} “III. APPELLANT'S CONVICTION FOR MURDER IN COUNT THREE

BASED ON A PURPOSEFUL KILLING WAS NOT SUPPORTED BY THE WEIGHT OF

THE EVIDENCE.”

I & II.

{¶63} In his First Assignment of Error, Ivy argues that there is insufficient evidence

to support his conviction for Aggravated Murder as set forth in Count I of the Indictment.

In his Second Assignment of Error, Ivy contends his conviction for aggravated murder is

against the manifest weight of the evidence. Specifically, Ivy contends that there is

insufficient evidence of prior calculation and design and that the jury’s finding he acted

with prior calculation and design is against the manifest weight of the evidence.

[Appellant’s Brief at 21-24].

Standard of Appellate Review– Sufficiency of the Evidence.

{¶64} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a Delaware County, Case No. 20 CAA 09 0034 21

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

{¶65} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is 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 proven beyond a reasonable doubt.” Jenks at

paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97

N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess

the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]

would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”

State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at

paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on

sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by

the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,

¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.

Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the light most

favorable to the prosecution, the evidence, if believed, would convince the average Delaware County, Case No. 20 CAA 09 0034 22

mind that Ivy purposely, and with prior calculation and design, caused the death of

Stephanie beyond a reasonable doubt.

{¶66} R.C. 2903.01 defines the crime of aggravated murder, “(A) No person shall

purposely, and with prior calculation and design, cause the death of another or the

unlawful termination of another's pregnancy…” Pursuant to R.C. 2901.22(A), “[a] person

acts purposely when it is his specific intention to cause a certain result, or, when the gist

of the offense is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is his specific intention to engage in conduct of

that nature.”

{¶67} There is no bright-line test to determine whether prior calculation and design

are present. Rather, each case must be decided on a case-by-case basis. State v.

Taylor, 78 Ohio St.3d 15, 18-20, 676 N.E.2d 82(1997). The Ohio Supreme Court has

held, “Where evidence adduced at trial reveals the presence of sufficient time and

opportunity for the planning of an act of homicide to constitute prior calculation, and the

circumstances surrounding the homicide show a scheme designed to implement the

calculated decision to kill, a finding by the trier of fact of prior calculation and design is

justified.” State v. Cotton, 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190(1978),

paragraph three of the syllabus. Accord, State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d

439, 2003-Ohio-325 at ¶ 61.

{¶68} Accordingly, to sustain Ivy’s aggravated murder conviction, the state had

the burden of proving beyond a reasonable doubt that, under the facts and circumstances

of this case, Ivy had sufficient time and opportunity to plan Stephanie’s death, and that, Delaware County, Case No. 20 CAA 09 0034 23

under the surrounding circumstances, Ivy had a scheme designed to implement a

calculated decision to kill Stephanie.

{¶69} “[P]rior calculation and design can be found even when the killer quickly

conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio

St.3d 253, 264, 2001-Ohio-1340, 754 N.E.2d 1129. In State v. Conway, 108 Ohio St.3d

214, 2006-Ohio-791, 842 N.E.2d 996, the Ohio Supreme Court held that one's actions

could display a plan to kill. In Conway, upon hearing that his brother had been stabbed,

Conway retrieved a gun from his car and began shooting at the alleged perpetrator. The

Court held that “[a]lthough they took only a few minutes, Conway's actions went beyond

a momentary impulse and show that he was determined to complete a specific course of

action. Such facts show that he had adopted a plan to kill.” Id. at ¶ 46, 842 N.E.2d 996.

If the victim is killed in a cold-blooded, execution-style manner, the killing bespeaks

aforethought, and a jury may infer prior calculation and design. See State v. Campbell,

90 Ohio St.3d 320, 330, 738 N.E.2d 1178(2000); State v. Palmer, 80 Ohio St.3d 543, 570,

687 N.E.2d 685(1997); State v. Taylor, 78 Ohio St.3d 15, 21, 676 N.E.2d 82(1997); State

v. Mardis, 134 Ohio App.3d 6, 19, 729 N.E.2d 1272(10th Dist. 1999).

{¶70} In Taylor the Supreme Court of Ohio set forth three factors to be used when

reviewing whether there is sufficient evidence of prior calculation and design. Taylor, 78

Ohio St.3d at 19, citing State v. Jenkins, 48 Ohio App.2d 99, 355 N.E.2d 825 (8th Dist.

1976). These factors are: "(1) Did the accused and victim know each other, and if so, was

that relationship strained? (2) Did the accused give thought or preparation to choosing

the murder weapon or murder site? and (3) Was the act drawn out or 'an almost

instantaneous eruption of events?"' Id.; Accord, State v. Franklin, 97 Ohio St.3d 1, 2002- Delaware County, Case No. 20 CAA 09 0034 24

Ohio-5304, 776 N.E.2d 26, ¶56. In the case at bar, the facts demonstrate prior calculation

and design.

{¶71} Ivy and Stephanie knew each other, and they had a tremendously strained

relationship. The prosecution presented a series of text messages from Ivy to

Stephanie in February and March 2019 which included what can be inferred to be

death threats by Ivy to Stephanie, as well as threat to harm Stephanie’s family. On

June 24, 2019, a couple days after the Powell Festival, Ivy held Stephanie at knife point.

While Ivy was in jail, he asked Young whether Stephanie was seeing someone else

because she had not been answering his calls. Ivy told Young that he would rather see

Stephanie dead than have her be with someone else. 3T. at 408-409. The state presented

recordings of Ivy threatening to kill Stephanie after she moved out of their apartment. 8T.

at 825-826. Ivy can be heard threatening to kick in Carolyn's door and kill everyone,

including himself. Ivy said that Stephanie had ruined his opportunities, and all he wanted

to do was kill her and that was the only thing that made him feel better. State’s Exhibits

14, 15 and 16.

{¶72} In his statements to the police and his sister, Ivy stated that he got into an

argument with Stephanie, Stephanie hit him, and then he strangled her.

{¶73} On the day of her death, the plan was to try and find a shelter for Ivy

because he needed to leave Stephanie's apartment. After Stephanie had gone into her

apartment alone, Ivy followed shortly thereafter. When Carolyn entered the

apartment, Ivy said nothing and hurriedly left. Ivy waited over six minutes before he

contacted the police. Delaware County, Case No. 20 CAA 09 0034 25

{¶74} Finally, it does not appear that the murder was an instantaneous event, but

instead were carried out over a period of time. “[T]he jury could find prior calculation and

design, * * * based on the protracted nature of the murder.” State v. Allen, 73 Ohio St.3d

626, 632, 653 N.E.2d 675(1995). Dr. Smock explained that the average person who is

strangled will lose consciousness within 6.8 seconds, although it can take as long as 10

seconds. Both Dr. Smock and the forensic pathologist explained the outward

physiological changes that Stephanie would have displayed as time passed, including

turning blue or purple and petechiae forming. Further, Ivy had scratches on his arms and

Stephanie had his DNA under her fingernails. Dr. Smock testified that it is not uncommon

for victims of strangulation to scratch at their assailant in an effort to break the

strangulation hold. Because strangulation does not cause instantaneous death, a

defendant has “sufficient time and opportunity to contemplate his actions during the

course of the murder, and could have chosen to stop the strangulation” prior to the victim’s

death. State v. Mount, 9th Dist. No. 26941, 2014-Ohio-5334, 2014 WL 6783113, ¶ 31;

State v. Malyshev, 7th Dist. Jefferson No. 17 JE 0029, 2019-Ohio-1087, ¶78.

{¶75} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that Ivy

purposely, and with prior calculation and design, caused the death of Stephanie.

{¶76} We hold, therefore, that the state met its burden of production regarding the

elements of aggravated murder and, accordingly, there was sufficient evidence to support

Ivy’s conviction. Delaware County, Case No. 20 CAA 09 0034 26

Standard of Appellate Review – Manifest Weight.

{¶77} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. 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; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

“[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.

***

“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.”

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).

{¶78} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the Delaware County, Case No. 20 CAA 09 0034 27

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. 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). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶79} Once the reviewing court finishes its examination, 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.

Issue for Appellate Review: Whether the jury clearly lost their way and created

such a manifest miscarriage of justice that the conviction for aggravated murder must

be reversed and a new trial ordered.

{¶80} 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. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or Delaware County, Case No. 20 CAA 09 0034 28

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 trier of fact 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, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

{¶81} In the case at bar, the jury heard the witnesses and viewed the evidence.

The jury saw Ivy’s videotaped statements to the police, viewed the video footage of his

actions at the police station, and heard recordings of his telephone conversations while

he was incarnated. The jury heard the medical experts’ testimony subject to cross-

examination. Thus, a rational basis exists in the record for the jury’s decision.

{¶82} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Ivy’s conviction is 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 heard the Delaware County, Case No. 20 CAA 09 0034 29

witnesses, evaluated the evidence, and was convinced of Ivy’s guilt. The jury neither lost

their way nor created a miscarriage of justice in convicting Ivy of aggravated murder.

{¶83} 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 of aggravated murder for which Ivy was convicted.

{¶84} Ivy’s First and Second Assignments of Error are overruled.

III.

{¶85} In his Third Assignment of Error, Ivy argues that his conviction for Murder

in violation of R.C. 2903.02(A) as set forth in Count III of the Indictment is against the

manifest weight of the evidence. Specifically, Ivy maintains that he did not purposely kill

Stephanie.

{¶86} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. 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; State v.

“[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

*** Delaware County, Case No. 20 CAA 09 0034 30

“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

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).

{¶87} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. 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). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶88} Once the reviewing court finishes its examination, 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 Delaware County, Case No. 20 CAA 09 0034 31

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.

Issue for Appellate Review: Whether the jury clearly lost their way and created

such a manifest miscarriage of justice that the conviction for murder must be reversed

and a new trial ordered.

{¶89} Pursuant to R.C. 2901.22(A), “[a] person acts purposely when it is his

specific intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is his specific intention to engage in conduct of that nature.” As the Ohio

Supreme Court stated in paragraph four of the syllabus in State v. Huffman, 131 Ohio St.

27, 1 N.E.2d 313(1936):

The intent of an accused person dwells in his mind. Not being

ascertainable by the exercise of any or all of the senses, it can never be

proved by the direct testimony of a third person, and it need not be. It must

be gathered from the surrounding facts and circumstances under proper

instructions from the court.

State v. Johnson, 56 Ohio St.2d 35, 38, 381 N.E.2d 637, 640 (1978).

{¶90} It is a fundamental principle that a person is presumed to intend the natural,

reasonable and probable consequences of his voluntary acts. State v. Nabozny, 54 Ohio

St.2d 195, 375 N.E.2d 784(1978); State v. Lockett, 49 Ohio St.2d 48, 358 N.E.2d

1062(1976); State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040(1976); and State v. Delaware County, Case No. 20 CAA 09 0034 32

Eato, 19 Ohio St.2d 145, 249 N.E.2d 897(1969). In the case at bar, Ivy admitted to

strangling Stephanie. The state presented evidence as to the amount of time necessary

to cause death by strangulation, the changes in Stephanie during this period that would

be evident to Ivy that death was imminent, and the fact that Ivy could have stopped

strangling Stephanie. His continued efforts evidenced his purpose. Further, evidence was

presented that Stephanie fought back in an effort to prevent her death, and that Ivy had

threatened to kill Stephanie on numerous occasions before Ivy carried out his intent.

{¶91} During Ivy’s trial, the jury heard the witnesses and viewed the evidence.

The jury saw Ivy’s videotaped statements to the police, viewed the video footage of his

actions at the police station, and heard recordings of his telephone conversations while

he was incarnated. The jury heard the medical experts’ testimony subject to cross-

examination. Thus, a rational basis exists in the record for the jury’s decision.

{¶92} 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. “While the trier of

fact may take note of the 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 trier of fact 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 Delaware County, Case No. 20 CAA 09 0034 33

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

{¶93} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Ivy’s conviction for murder is not

against the manifest weight of the evidence. To the contrary, the jury appears to have

fairly and impartially decided the matters before them. The jury heard the witnesses,

evaluated the evidence, and was convinced of Ivy’s guilt. The jury neither lost their way

nor created a miscarriage of justice in convicting Ivy of murder. Delaware County, Case No. 20 CAA 09 0034 34

{¶94} 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 of murder for which Ivy was convicted.

{¶95} Ivy’s Third Assignment of Error is overruled.

{¶96} The judgment of the Delaware County Court of Common Pleas is affirmed.

By Gwin, J.,

Baldwin, P.J., and

Wise, J., concur