State v. Mack

2014 Ohio 4552

Procedural entryThis page is a short order in State v. Mack. Read the opinion of the Court — 2014 Ohio 4817 →

Ohio Court of Appeals·Decided October 13, 2014·No. 13 CAA 11 0080·Published

Opinion

[Cite as State v. Mack, 2014-Ohio-4552.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 13 CAA 11 0080 MARK E. MACK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 13 CRI 030102

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 13, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN MICHAEL A. MARROCCO DOUGLAS N. DUMOLT 98 North Union Street Delaware County Prosecutors Office Delaware, Ohio 43015 140 North Sandusky Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 13 CAA 11 0080 2

Hoffman, P.J.

{¶1} Defendant-appellant Mark Mack appeals his conviction entered by the

Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant, along with co-defendants Pamela Webb and Tarra Wright, is

alleged to have stolen credit/debit cards from various individuals, and to have

immediately made unauthorized purchases and cash advances on the stolen cards.

The victims, all women, positioned their purses on the back of their chairs or nearby

while eating at restaurants in highly frequented shopping areas.

{¶3} Appellant was indicted on one count of engaging in a pattern of corrupt

activity, in violation of R.C. 2923.32(A)(1); twenty counts of identity theft, in violation of

R.C. 2913.49(B)(1); ten counts of receiving stolen property, in violation of R.C.

2913.51(A); a single count of theft, in violation of R.C. 2913.02(A)(3); and one count of

possession of criminal tools, in violation of R.C. 2923.24(A).

{¶4} Following a jury trial, Appellant was found guilty of all but counts nine, ten

and eleven.

{¶5} Appellant appeals, assigning as error:

{¶6} "I. THE JURY'S GUILTY VERDICT AND THE TRIAL COURT'S

ENTERING A JUDGMENT OF CONVICTION AGAINST DEFENDANT/APPELLANT

WHEN THE EVIDENCE WAS INSUFFICIENT TO SUPPORT HIS CONVICTION WAS

IN ERROR. Delaware County, Case No. 13 CAA 11 0080 3

{¶7} "II. THE JURY'S GUILTY VERDICT AND THE TRIAL COURT'S

ENTERING A JUDGMENT OF CONVICTION AGAINST DEFENDANT/APPELLANT

WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE WAS IN ERROR."

I. and II.

{¶8} Appellant's assigned errors raise common and interrelated issues;

Therefore, we will address the arguments together.

{¶9} Appellant maintains the testimony linking Appellant to the crimes for which

he was convicted was not credible and was elicited from a convicted liar. Accordingly,

Appellant asserts the jury clearly lost its way in convicting Appellant of the crimes.

Specifically, Appellant argues the State's case against Appellant relies on the testimony

of convicted felon, Pamela Webb.

{¶10} Initially, we note, as an appellate court, our role is not to judge the

credibility of the evidence; rather, to determine whether the evidence, if believed, would

support a conviction. The evidence is to be viewed in a light most favorable to the

prosecution. When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (stating that “sufficiency is

a test of adequacy”); State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991).

The standard of review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any rational

trier of fact could have found all the essential elements of the offense beyond a Delaware County, Case No. 13 CAA 11 0080 4

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. Furthermore, a reviewing

court is not to assess “whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.” Thompkins, 78

Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring).

{¶11} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate

court must construe the evidence in a light most favorable to the prosecution. State v.

Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d

465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could not reach the

conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749

N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

{¶12} When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record,

weigh the evidence, and consider witness credibility. A reviewing court must bear in

mind, however, that credibility generally is an issue for the trier of fact to resolve. E.g.,

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio

St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Once

the reviewing court finishes its examination, the court may reverse the conviction only if

it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’" Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Delaware County, Case No. 13 CAA 11 0080 5

{¶13} If the prosecution presented substantial evidence upon which the trier of

fact reasonably could conclude, beyond a reasonable doubt, the essential elements of

the offense had been established, the judgment of conviction is not against the manifest

weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),

syllabus. Generally, a reviewing court should find a conviction against the manifest

weight of the evidence only in the “‘exceptional case in which the evidence weighs

heavily against the conviction.’" Tompkins 78 Ohio St.3d at 387,

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