State v. Razey

2023 Ohio 4190

• Court: Ohio Court of Appeals
• Decided: November 21, 2023
• Docket: 23CAC030021
• Status: Published

Opinion

[Cite as State v. Razey, 2023-Ohio-4190.]

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. Patricia A. Delaney, J. -vs- Case No. 23CAC030021 JEFFREY RAZEY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 22CRB01081

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 21, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ALICIA HARRIS WILLIAM CRAMER ASSISTANT PROSECUTOR 470 Olde Worthington Road CITY OF DELAWARE Suite 200 70 North Union Street Westerville, Ohio 43082 Delaware, Ohio 43015 Delaware County, Case No. 23CAC030021 2

Wise, J.

{¶1} Appellant Jeffrey Razey appeals his conviction on one count of theft, entered

in the Delaware Municipal Court, following a jury trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} By Complaint filed September 14, 2022, Appellant Jeffrey Razey was

charged with theft, in violation of R.C. §2913.02(A)(1), a first-degree misdemeanor.

{¶5} On March 7, 2023, the matter proceeded to a jury trial.

{¶6} At trial, Meijer loss prevention employee Amy Macklin testified that she was

contacted about a theft at a store in Delaware County and pulled surveillance video.

Macklin saw Appellant in the footage. (T. at 111-113). Macklin testified that the video

starts at around 9:30 p.m. on the general merchandise side of the store. At that time of

night, the general merchandise side of the store usually does not have any open registers

and no greeters. (T. at 115-116).

{¶7} A video shows Appellant exiting a white minivan in the parking lot and then

walking in to the store. As Appellant enters the store through a door on the general

merchandise side, another individual named Shawn Packer exited the minivan and also

started walking toward the store. (T. at 123-124).

{¶8} Another video shows Appellant enter the store, get a shopping cart, and

proceed to the baby department. Appellant selects some items, which appear to be baby

gates, and places them in the cart. Appellant then moved the cart to the women's

department and left it between two racks of clothing. (T. at 116-118). Delaware County, Case No. 23CAC030021 3

{¶9} Appellant then exited the store and walked to the white minivan, while Packer

exited the minivan and walked past Appellant and into the store. Packer went to the cart

and pushed it to the exit without paying. Appellant drove the minivan to the general

merchandise exit just as Packer exited the store with the cart. Packer loaded the

merchandise into the minivan and got into the passenger side, and Appellant drove

away. Two store employees saw Packer and followed him outside to the minivan. (T. at

119-124).

{¶10} Ms. Macklin confirmed that the merchandise was not paid for, and that the

value of the merchandise was $219.97. (T. at 126-127).

{¶11} Officer Curtis Myers of the Westerville Division of Police testified that he was

called in to investigate the theft offense. Officer Myers stated that he reviewed the video

footage and compared it to a BMV photo to confirm that it was Appellant Razey in the

video. Based on what he saw in the video, Officer Myers issued a criminal Complaint

and Summons for Appellant. (T. at 134-135).

{¶12} The videos were played for the jury and admitted as exhibits. (T. at 140).

{¶13} The jury was instructed on complicity over the objection of the defense. (T.

at 145- 146, 161).

{¶14} Following deliberations, the jury found Appellant guilty as charged. (T. at

169).

{¶15} The trial court sentenced Appellant to fifteen (15) days in jail, one year of

community control, a fine of $500, and restitution of $219.97 to Meijer. (T. at 175). (See

3/7/23 Final Judgment Entry).

{¶16} Appellant now appeals, raising the following errors for review: Delaware County, Case No. 23CAC030021 4

ASSIGNMENT OF ERROR

{¶17} “I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE INFRINGED BY PROSECUTORIAL

MISCONDUCT.

{¶18} “II. THE CONVICTION FOR THEFT WAS NOT SUPPORTED BY THE

WEIGHT OF THE EVIDENCE.”

I.

{¶19} In his first assignment of error, Appellant argues that he was denied due

process by prosecutorial misconduct at trial. We disagree.

{¶20} Specifically, Appellant argues that prosecutorial misconduct occurred when

the prosecutor asked the Meijer loss prevention employee the following question:

Q: Prior to this case, did you know Mr. Razey by name?

A: I did.

{¶21} (T. at 125).

{¶22} Appellant argues that this question amounted to misconduct because prior

to the commencement of trial, the trial court granted a motion in limine to exclude

evidence regarding prior incidents of theft from Meijer involving Appellant and Packer

which the State had intended to use to prove identity and absence of mistake

pursuant to Crim.R. 404(B).

{¶23} Counsel for Appellant immediately objected, and the trial court sustained the

objection. During jury instructions, the trial court provided a standard instruction that the

jury must not speculate as to why the court sustained objections, what the answers to

those questions would have been, or on the truth of any suggestions included in a Delaware County, Case No. 23CAC030021 5

question that was not answered, and the jury must disregard any statements or answers

that were stricken by the court. (T. at 156).

{¶24} The test for prosecutorial misconduct is whether the prosecutor's comments

and remarks were improper and if so, whether those comments and remarks prejudicially

affected the substantial rights of the accused. Sunbury v. Sullivan, 5th Dist. Delaware

No. 11CAC030025, 2012-Ohio-3699, 2012 WL 3525617, ¶ 30 citing State v. Lott, 51

Ohio St.3d 160, 555 N.E.2d 293 (1990).

{¶25} In reviewing allegations of prosecutorial misconduct, it is our duty to consider

the complained of conduct in the context of the entire trial. Darden v. Wainwright, 477

U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial is not unfair, if, in the context of

the entire trial, it appears clear beyond a reasonable doubt the jury would have found the

defendant guilty even without the improper comments. State v. Treesh, 90 Ohio St.3d

460, 464, 2001-Ohio-4, 739 N.E.2d 749.

{¶26} Allegations of prosecutorial misconduct implicate due process concerns, and

the touchstone of the analysis is the “ ‘fairness of the trial, not the culpability of the

prosecutor.’ ” State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, ¶ 92,

quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

If any misconduct occurred, the court must consider the effect it had

on the jury “in the context of the entire trial.” State v. Keenan, 66 Ohio St.3d

402, 410, 613 N.E.2d 203 (1993). With regard to each allegation of

misconduct, we must determine whether the conduct was “improper, and, if

so, whether [it] prejudicially affected substantial rights of the defendant.”

State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[A] Delaware County, Case No. 23CAC030021 6

defendant's substantial rights cannot be prejudiced when the remaining

evidence, standing alone, is so overwhelming that it constitutes defendant's

guilt, and the outcome of the case would have been the same regardless of

evidence admitted erroneously.” State v. Hicks, 194 Ohio App.3d 743,

2011-Ohio-3578, 957 N.E.2d 866, ¶30 (8th Dist. 2011), citing State v.

Williams, 38 Ohio St.3d 346, 349–350, 528 N.E.2d 910 (1988).

{¶27} State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051,

¶ 109.

{¶28} Whether statements made by a prosecutor amount to misconduct and

whether such statements render a trial fundamentally unfair are mixed questions of law

and fact, which we review de novo. United States v. Carson, 560 F.3d 566, 574 (6th Cir.

2009) citing United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999) citing United

States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993).

{¶29} Our inquiry is guided by four factors: (1) the nature of the remarks; (2)

whether an objection was made by counsel; (3) whether corrective instructions were

given by the court; and (4) the strength of the evidence against the defendant. Sidney v.

Walters, 118 Ohio App.3d 825, 829, 694 N.E.2d 132 (3d Dist.1997)

{¶30} Upon review, we find that alleged misconduct was just a single question to

which Appellant’s counsel objected and the trial court sustained the objection. The trial

court instructed the jury not to speculate as to why it sustained any objections. A

presumption always exists that the jury followed the trial court's instructions. State v.

Loza (1994), 71 Ohio St.3d 61, 79, 641 N.E.2d 1082; Pang v. Minch, 53 Ohio St.3d 186,

187, 559 N.E.2d 1313 (1990), at paragraph four of the syllabus, rehearing denied, 54 Delaware County, Case No. 23CAC030021 7

Ohio St.3d 716, 562 N.E.2d 163. Further, based on our review of the entire case, we do

not find that the contested question was outcome determinative or denied Appellant a

fair trial. We cannot conclude, based on all of the evidence produced at trial, that there

was a reasonable probability that, but for the prosecutor's question, the result of the trial

would have been different.

{¶31} Appellant’s first assignment of error is overruled.

II.

{¶32} In his second assignment of error, Appellant argues that his conviction is not

supported by the weight of the evidence. We disagree.

Standard of Review

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

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541, 547 (1997) quoting State v. Martin (1983), 20 Ohio

App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720–721. Reversing a conviction

as being against the manifest weight of the evidence and ordering a new trial should be

reserved for only the “exceptional case in which the evidence weighs heavily against the

conviction.” Id. See State v. Acker, 5th Dist. Holmes No. 22CA008, 2023-Ohio-2085, ¶

36. Delaware County, Case No. 23CAC030021 8

{¶34} The trial court's decision should not be disturbed as against the manifest

weight of the evidence if the decision is supported by some competent and credible

evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578

(1978). A reviewing court should not reverse a decision simply because it holds a

different opinion concerning the credibility of the witnesses and evidence submitted

before the trial court. Geary v. Geary, 5th Dist. Delaware, 2015-Ohio-259, 27 N.E.3d

877.

{¶35} Appellant herein was convicted of Theft, in violation of R.C. §2913.02, which

provides:

(A) No person, with purpose to deprive the owner of property or

services, shall knowingly obtain or exert control over either the property or

services in any of the following ways:

(1) Without the consent of the owner or person authorized to give

consent;

{¶36} At trial, the state presented testimony and evidence from which the jury could

have found all the essential elements of theft, proven beyond a reasonable doubt. The

jury heard the witnesses, watched the video surveillance tapes, evaluated the evidence,

and was convinced of Appellant's guilt.

{¶37} Upon review of the entire record, weighing the evidence and all reasonable

inferences as a thirteenth juror, including considering the credibility of witnesses, we

cannot reach the conclusion that the jury, as the trier of fact, lost its way and created a

manifest miscarriage of justice. Taken as a whole, the testimony and record contains

ample evidence of Appellant's involvement in the alleged crime. Delaware County, Case No. 23CAC030021 9

{¶38} The record is devoid of any evidence the jury lost its way in resolving conflicts

in the evidence, and Appellee's evidence supports the guilty verdict of the jury.

{¶39} Appellant’s second assignment of error is overruled.

{¶40} For the forgoing reasons, the judgment of the Municipal Court of Delaware

County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

JWW/kw 1117