[Cite as State v. Sutton, 2014-Ohio-1074.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100037
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
TIMOTHY SUTTON, JR. DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-543964
BEFORE: McCormack, J., Keough, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: March 20, 2014 ATTORNEY FOR APPELLANT
Thomas A. Rein Leader Building, Suite 940 526 Superior Ave. Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Jeffrey S. Schnatter Joseph J. Ricotta Assistant County Prosecutors 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} Defendant-appellant, Timothy Sutton, Jr., appeals his conviction for
breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth degree, and
assigns five errors for our review. For the reasons that follow, we affirm the conviction.
Procedural History
{¶2} Initially, on November 17, 2010, Sutton was indicted for one count of
burglary, in violation of R.C. 2911.12(A)(2), with notice of a prior conviction and a
repeat violent offender specification, alleging that Sutton was convicted of burglary and
vandalism in a previous matter in 2006, and one count of vandalism, in violation of R.C.
2909.05(A). Sutton pleaded not guilty to the charges, and the matter proceeded to a jury
trial on January 19, 2011. At the close of the state’s case, the state dismissed the
vandalism charge. The jury subsequently found Sutton guilty of burglary, and the trial
court convicted him of the notice of prior conviction and the repeat violent offender
specification. The court sentenced Sutton to eight years for the burglary and three years
for the repeat violent offender specification.
{¶3} Sutton appealed his conviction to this court in State v. Sutton, 8th Dist.
Cuyahoga No. 96408, 2011-Ohio-6270. On appeal, we reversed Sutton’s conviction and
remanded for a new trial, finding that the trial court’s allowance of “other acts” evidence
was prejudicial and a violation of Evid.R. 404(B). Id. {¶4} On May 20, 2013, Sutton was tried for a second time for burglary, in
violation of R.C. 2911.12(A)(2), the vandalism count having been dismissed by the state
in the first trial. He waived his right to a jury trial, and the matter was tried to the bench.
At trial, defense counsel moved for dismissal under Crim.R. 29, which the court
overruled. The defense subsequently requested the court consider the lesser included
offenses of breaking and entering, in violation of R.C. 2911.13, and criminal trespass, in
violation of R.C. 2911.21. The court then found Sutton guilty of the lesser included
offense of breaking and entering.
{¶5} The court ordered a presentence investigation report and continued the
matter for sentencing. On May 22, 2013, the court sentenced Sutton to 12 months
incarceration, subject to a potential three-year period of postrelease control.
Substantive Facts
{¶6} On October 4, 2010, at around 5:00 p.m., Larry Philpotts, who resided at
3647 Martin Luther King Blvd., in Cleveland, Ohio, was watching television in the back
room of his house when he observed a thin black male break the window of the back door
at 3641 Martin Luther King Blvd. Philpotts testified that he saw the male stick his hand
in the broken window and unlock the door while standing on a five-gallon bucket in order
to reach inside. He stated that he then saw the male enter the residence.
{¶7} While the male was inside, Philpotts called the Cleveland police and
reported that a man was breaking into his neighbor’s home and had entered through the
back door. Philpotts called the police a second time, approximately six minutes later, and reported that the male was still inside the house. After placing the second call,
Philpotts went outside and observed the male coming out of the neighbor’s driveway.
He testified that he asked the male why he went in the house, to which the male
responded that “he was just looking around.” While he was unable to identify Sutton at
trial, Philpotts testified that the male he saw breaking into the house next door, the one
who also admitted to Philpotts that he was inside the home, is the same male the police
took into custody that day.
{¶8} At approximately 5:00 p.m., on the date in question, Cleveland Police
Officer Jovan Larkin, along with her partner, Officer Thelemon Powell, responded to a
code one high priority call from dispatch concerning a male breaking into a vacant house
located at 3641 Martin Luther King Blvd. Officer Larkin testified that she and her
partner arrived at the house in less than ten minutes. Upon arriving, Officer Larkin
observed two males standing in front of the residence next to the house to which they
were responding.
{¶9} Officer Larkin approached the two men, learned that Philpotts was the next
door neighbor, and inquired as to what was going on. Philpotts indicated that the man
with whom he was standing, later identified as Sutton, was the man who had broken into
3641 Martin Luther King Blvd. Officer Larkin went to the rear of the home and
observed the broken window of the rear door, broken glass on the porch in front of the
door, and pieces of glass in the entranceway inside the home. The officer further
investigated the view of the back door that Philpotts had when he observed the male breaking the window, and determined that Philpotts had a clear, unobstructed view of the
back door from his back room.
{¶10} Upon further investigation, the officer learned that the house in question was
listed for sale and the realtor was Pearlie Durrah. Her name and phone number were
listed on the sign. Officer Larkin attempted to contact Durrah to no avail. She included
Durrah’s name as the victim in the police report.
{¶11} Officer Larkin testified that once Sutton was detained in the officer’s zone
car, Sutton indicated that he was interested in purchasing the property. The officer stated
that what Sutton told her was inconsistent with what she learned from Philpotts. Based
upon her investigation, the evidence on the scene, and her conversations with Philpotts
and Sutton, Officer Larkin made a decision to place Sutton under arrest. At trial, Officer
Larkin identified Sutton as the man she saw standing with Philpotts on the day in
question.
{¶12} Pearlie Durrah, the real estate broker who had listed the property for sale,
testified that she received a phone call from Philpotts, who informed her that someone
had broken into the vacant property she had listed. She and her husband, Donald Durrah,
arrived on the scene within 15 minutes of receiving the phone call. Upon arriving, she
observed broken glass on the inside of the back door as well as glass on the porch floor
immediately outside the door.
{¶13} Durrah testified that she and her husband would visit the home
approximately two times per week, at different times of the day. The last time she was on the property was within one week of the incident on October 4. She stated that she
always inspected the property on each visit, and the last time she was on the property, she
did not recall seeing damage to any of the doors. She testified that some clothes, a piano,
an organ, and some lamps were in the house at the time. She did not believe the items,
with the exception of the piano and the organ, had any significant value. She did not
believe that the piano and the organ, the only items of value, could be lifted by a single
person. She stated that in order to open the back door without a key, one would need to
break the glass window.
{¶14} Durrah testified that she was the only person authorized to show the
property in question. She further testified that she had no appointments to show the
property on October 4, was never contacted by Sutton for purposes of viewing the
property, and had never seen Sutton in relation to showing the home. She did not give
anyone permission to enter the home on October 4.
{¶15} Donald Durrah testified that the security gate on the property was unlocked
when he arrived to inspect the home after the incident in question. He stated that the
security gate could be opened by sticking a hand through the gate and pulling the slide
bolt out. When he arrived, the rear door with the broken window was unlocked. It
would ordinarily have been locked. He observed broken glass on the floor inside the
door.
Assignments of Error1
For ease of discussion, we will discuss the assignments of error out of sequence. 1 I. The trial court erred in denying appellant’s motion for acquittal when the state failed to present sufficient evidence to sustain a conviction.
II. Appellant’s conviction is against the manifest weight of the evidence.
III. The trial court erred in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution which provide rights to confrontation and cross-examination, and Ohio [Evid.R.] 801 and 802, when it permitted state witnesses to testify with inadmissible hearsay statements.
IV. Appellant was denied effective assistance of counsel as guaranteed by Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution.
V. Appellant was denied a fair trial by the police officer’s improper
comments while testifying.
Right of Confrontation
{¶16} In his third assignment of error, Sutton claims that the trial court violated his
right of confrontation when it allowed Officer Larkin to testify regarding Philpotts’s
out-of-court identification of Sutton as the person who broke into the house at 3641
Martin Luther King Blvd. Sutton contends that this statement is inadmissible hearsay.
{¶17} A trial court has broad discretion in admitting evidence; absent an abuse of
that discretion and a showing of material prejudice, a trial court’s ruling on the
admissibility of evidence will be upheld. Fackelman v. Micronix, 8th Dist. Cuyahoga
No. 98320, 2012-Ohio-5513, ¶ 17; State v. Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d
1157 (1985). {¶18} Evid.R. 801(C) defines hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” A statement is not hearsay if “[t]he declarant testifies at trial or
hearing and is subject to cross-examination concerning the statement, and the statement is
* * * one of identification of a person soon after perceiving the person, if the
circumstances demonstrate the reliability of the prior identification.” Evid.R.
801(D)(1)(c); State v. Houston, 8th Dist. Cuyahoga No. 64574, 1994 Ohio App. LEXIS
52 (Jan. 13, 1994) (evidence of prior identification is not hearsay pursuant to Evid.R.
801(D)(1)(c) if the identification carries traditional indicia of trustworthiness and
reliability). In a case of prior identification, it matters not that the witness cannot
subsequently identify the offender at trial. Staff Note, Evid.R. 801(D)(1)(c); see also
State v. King, 8th Dist. Cuyahoga No. 61040, 1993 Ohio App. LEXIS 1130, * 10 (Feb.
25, 1993).
{¶19} Here, Officer Larkin testified that upon arriving on the scene within ten
minutes of receiving the call from dispatch, she observed two men standing in front of the
residence next to the house to which the officers were responding. Officer Larkin
approached the two men and inquired as to what was going on. At this point, Philpotts,
who had placed the initial call to the police, told the officer that the man with whom he
was standing was the man who had broken into 3641 Martin Luther King Blvd.
Philpotts’s statement to Officer Larkin was one of identification and was reported within
minutes of personally witnessing Sutton enter his neighbor’s home. The statement was therefore trustworthy and reliable. Philpotts also testified at trial and was subject to
cross-examination. Officer Larkin’s statement in court as to Philpotts’s identification of
Sutton was therefore admissible under Evid.R. 801(D)(1)(c).
{¶20} Furthermore, Officer Larkin’s testimony does not violate the Confrontation
Clause. The Sixth Amendment to the United States Constitution grants the accused the
right “to be confronted with the witnesses against him * * *.” In Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United
States Supreme Court held that the Confrontation Clause bars “testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant
had a prior opportunity for cross-examination.” A defendant’s constitutional right of
confrontation is therefore not violated when the accuser is available for cross-examination
at trial. State v. Collins, 8th Dist. Cuyahoga No. 89668, 2008-Ohio-2363, ¶ 57.
{¶21} In this case, Philpotts appeared at trial and was subject to cross-examination.
Therefore, Officer Larkin’s testimony concerning Philpotts’s identification of Sutton as
the man who entered his neighbor’s home did not violate the Confrontation Clause.
{¶22} Sutton’s third assignment of error is overruled.
Ineffective Assistance of Counsel
{¶23} In his fourth assignment of error, Sutton argues that he was denied a fair
trial because his trial counsel failed to object to Officer Larkin’s alleged hearsay
statements regarding Philpotts’s identification of Sutton as outlined in his third
assignment of error. {¶24} In order to establish a claim of ineffective assistance of counsel, a defendant
must demonstrate: (1) his counsel was deficient in some aspect of his representation, and
(2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶25} The first element requires a showing that counsel made errors “so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. It necessarily requires that when a defendant complains of the
ineffectiveness of counsel’s assistance, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 687-688.
{¶26} Regarding the second element, the defendant must demonstrate that there is
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142, 538
N.E.2d 373 (1989), citing Strickland at 694. Moreover, a defendant’s failure to satisfy
one element of the Strickland test negates the court’s need to consider the other. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
{¶27} As we previously determined in Sutton’s third assignment of error, Officer
Larkin’s testimony in court as to Philpotts’s identification of Sutton as the man he saw
enter his neighbor’s home was admissible under Evid.R. 801(D)(1)(c). Philpotts’s
statement to Officer Larkin was one of identification, it was given within moments of
Philpotts’s personal observation of Sutton’s actions, and Philpotts was available at trial
and subject to cross-examination. As such, trial counsel’s failure to object to such testimony did not constitute deficient performance. Absent a showing of deficient
representation, Sutton’s claim of ineffective assistance of counsel must fail.
{¶28} Sutton’s fourth assignment of error is overruled.
Sufficiency of the Evidence
{¶29} In his first assignment of error, Sutton contends that the trial court erred in
denying his Crim.R. 29(A) motion for acquittal because there was insufficient evidence to
support his conviction for breaking and entering.
{¶30} A Crim.R. 29(A) motion challenges the sufficiency of the evidence. When
reviewing a challenge of the sufficiency of the evidence, an appellate court examines the
evidence admitted at trial and determines whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The
relevant inquiry is whether, after viewing the evidence in a 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.” Id. A sufficiency challenge requires us to review
the record to determine whether the state presented evidence on each of the elements of
the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
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.”
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). {¶31} Sutton was convicted of breaking and entering in violation of R.C.
2911.13(A), which states that “[n]o person by force, stealth, or deception, shall trespass in
an unoccupied structure, with purpose to commit therein any theft, offense, or felony.”
Sutton argues that the state failed to show that: he was the person Philpotts saw breaking
into the home at 3641 Martin Luther King Blvd., he trespassed, or he intended to commit
a theft offense on the property because there was no evidence that he took anything. We
find no merit to this argument.
{¶32} First, Sutton claims that the state failed to establish that he was the person
who entered the vacant home. The evidence, however, demonstrates as follows:
Philpotts testified that he saw a thin black male break the window of the back door at
3641 Martin Luther King Blvd., stick his hand in the broken window, and unlock the door
while standing on a five-gallon bucket in order to reach inside. He then saw the male
enter the home. After he phoned police for the second time, Philpotts observed this same
male coming out of the neighbor’s driveway. Philpotts confronted the male and asked
him why he went in the house, and the male told him “he was just looking around.”
While he could not positively identify Sutton in court, Philpotts testified that the male he
saw breaking into the house next door, the one who also admitted to Philpotts that he was
inside the home, is the same male the police took into custody that day. Officer Larkin
testified that, upon arriving on the scene, Philpotts indicated that the man with whom he
was standing was the man who had broken into 3641 Martin Luther King Blvd. At trial,
Officer Larkin identified Sutton as the man she saw standing with Philpotts on October 4. {¶33} When viewing this evidence in a light most favorable to the state, we find
sufficient evidence identifying Sutton as the perpetrator. As we previously determined,
Officer Larkin’s testimony concerning Philpotts’s identification of Sutton as the man he
saw enter his neighbor’s house was properly admitted as a statement of identification
permitted under Evid.R. 801(D)(1)(c).
{¶34} We also find sufficient evidence to demonstrate that Sutton trespassed on
the property. Trespass can be shown by circumstantial evidence, real evidence, and
direct evidence, or any combination of the three. State v. Collins, 8th Dist. Cuyahoga
No. 98350, 2013-Ohio-488, ¶ 15. Direct evidence exists when “a witness testifies about
a matter within the witness’s personal knowledge such that the trier of fact is not required
to draw an inference from the evidence to the proposition that it is offered to establish.”
State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. In contrast,
“circumstantial evidence requires the drawing of inferences that are reasonably permitted
by the evidence.” Id. Circumstantial evidence carries the same weight as direct
evidence. Id., citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).
{¶35} Here, as previously stated, Philpotts testified that he saw a male break a
window on the rear door, reach his hand inside the window to unlock the door, and enter
the home. Pearlie Durrah, the only person authorized to show the property, testified that
she had no appointments to show the property on October 4, was never contacted by
Sutton for purposes of viewing the property, and had never seen Sutton in relation to
showing the home. She further testified that she did not give anyone permission to enter the home on October 4. There was also evidence of a broken window in the back door
and broken glass both inside the door and on the outside. We find this evidence is
sufficient to show that Sutton trespassed.
{¶36} Finally, we find the evidence is sufficient to show that Sutton entered the
property with the purpose to commit a theft. Sutton argues that there was no evidence
that he took anything from the home. However, the intent to commit a theft can be
inferred from the fact of forcible entry, absent circumstances giving rise to a different
inference. State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233,
¶ 47 (8th Dist.), citing State v. Flowers, 16 Ohio App.3d 313, 315, 475 N.E.2d 790 (10th
Dist.1984), overruled on other grounds, State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d
1037 (2000); State v. Powers, 8th Dist. Cuyahoga No. 86365, 2006-Ohio-2458, ¶ 23;
State v. Turner, 8th Dist. No. 78630, 2001 Ohio App. LEXIS 3718 (Aug. 23, 2001).
{¶37} In this case, it is reasonable to infer that Sutton entered the home with the
intent to commit theft. The evidence showed that Sutton broke a window in a back door
in order to enter the home. Unbeknownst to Sutton, the only items of value in the home
were a piano and an organ, which were too large for a single person to carry. Sutton
therefore left the home with nothing in his hands. The fact that Sutton’s purpose may
have been frustrated by the contents in the home, or lack thereof, does not alter his intent.
The state was not required to show that he actually stole something in order to convict
him of breaking and entering under R.C. 2911.13(A). State v. Russell, 12th Dist. Butler
No. CA2012-08-156, 2013-Ohio-3079, ¶ 38. {¶38} According to Philpotts, Sutton told him that he was only “looking around,”
when Philpotts confronted Sutton soon after he exited the home. However, the finder of
fact is not required to accept a “competing inference of innocence” when the same
circumstances could also infer guilt beyond a reasonable doubt. State v. Galloway, 10th
Dist. Franklin No. 03AP-407, 2004-Ohio-557, ¶ 25, citing Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492.
{¶39} In light of the above, it is reasonable to infer that Sutton’s purpose in
breaking into the home on Martin Luther King Blvd. was to commit a theft offense.
{¶40} Viewing all of the evidence in the light most favorable to the prosecution,
we find that there was sufficient evidence supporting Sutton’s conviction for breaking
and entering. Accordingly, Sutton’s first assignment of error is overruled.
Manifest Weight of the Evidence
{¶41} In his second assignment of error, Sutton contends that his conviction is
against the manifest weight of the evidence.
{¶42} Unlike sufficiency of the evidence, manifest weight of the evidence raises a
factual issue.
“The court, 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 reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.”
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).
{¶43} In evaluating a manifest weight claim, “the weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of the facts.” State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
When examining witness credibility, “the choice between credible witnesses and their
conflicting testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d
120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some, or none of the
testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No.
98538, 2013-Ohio-1184, ¶ 18.
{¶44} In support of his argument, Sutton once again argues that the state failed to
provide sufficient, or “requisite,” evidence to support a conviction. He relies on his
claim that Philpotts, the sole eyewitness, was unable to identify Sutton at trial as the
person who broke into the home.
{¶45} While it is true that Philpotts was unable to positively identify Sutton in the
courtroom as the perpetrator, he made a prior identification of Sutton at the
scene. Philpotts testified at trial that he saw a male break the window of the back door at
3641 Martin Luther King Blvd. and stick his hand inside the broken window, while standing on a bucket in order to reach inside. He further testified that he saw the male
then enter the home. After calling the police, Philpotts observed this same male coming
out of the neighbor’s driveway. Upon confronting him, the male admitted to being inside
the home. Philpotts testified that the male he saw break into the home is the same male
the police took into custody on October 4. Officer Larkin testified that, upon arriving on
the scene, Philpotts indicated that the male with whom he was standing was the same man
who had broken into his neighbor’s home. Officer Larkin testified at trial that Sutton
was the man she saw standing with Philpotts on that day. The fact that Philpotts could
not identify Sutton at trial, more than two and one-half years after the incident, is not fatal
to Sutton’s identity as the perpetrator where Philpotts made a prior identification to
Officer Larkin at the scene within minutes of the alleged crime. Officer Larkin’s
testimony relating to Philpotts’s identification is sufficient to establish Sutton’s identity.
{¶46} Sutton also claims that the trial court “had plenty of tainted evidence from
the first trial to rely upon[,] causing it to reach improper conclusions and thus an incorrect
verdict” and it “wanted to hold someone accountable.” He fails, however, to support his
allegations with evidence from the record that would indicate the trial court considered
anything other than the evidence presented at trial. Appellate courts will presume that a
trial court considered only relevant and admissible evidence in a bench trial. State v.
Crawford, 8th Dist. Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 61.
{¶47} In light of the above, we cannot find that the factfinder clearly lost its way in
convicting Sutton of breaking and entering and created such a manifest miscarriage of justice that the conviction must be reversed. Sutton’s second assignment of error is
therefore overruled.
Officer Larkin’s Testimony Regarding Sutton’s “Inconsistent” Statement
{¶48} In his fifth assignment of error, Sutton argues that the trial court erred by
allowing Officer Larkin to testify about Sutton’s stated reason for being on the property
as being “inconsistent.” He claims that Officer Larkin’s testimony was a comment on
the truthfulness of Sutton’s statement and was therefore improper.
{¶49} This court has held that it is improper for a witness to vouch for the
credibility of another witness. State v. Young, 8th Dist. Cuyahoga No. 79243,
2002-Ohio-2744 (holding that it was plain error when a detective testified that a witness
was “telling the truth”). An officer is not vouching for witness credibility, however, by
explaining the investigative procedure he followed. State v. Monroe, 8th Dist.
Cuyahoga No. 94768, 2011-Ohio-3045, ¶ 34 (finding the detective’s testimony that
defendant’s comment was inconsistent with other evidence did not invade the province of
the jury); see also State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051
(finding that the detective’s testimony that one statement corroborated another is not to
say that either was true, but rather that they were consistent).
{¶50} On cross-examination, in response to defense counsel’s question, “He told
you he was interested in the property, did he not?” — and over the state’s objection,
Officer Larkin indicated that she had spoken with Sutton once he was detained in her
zone car and Sutton offered an explanation as to why he was on the property. On redirect, the following exchange took place between the prosecutor and the officer:
Q: With what you learned from Mr. Philpotts, was it consistent with what Mr. Sutton’s statement was?
A: No, sir, it was not consistent.
Q: After hearing from Mr. Philpotts and Mr. Sutton, did you make a decision that day in terms of whether or not to arrest?
A: Yes, I did, sir.
Q: What decision did you make?
A: I made a decision that day to place Mr. Sutton under arrest.
Q: Okay. And what in total went into that decision?
A: Based upon the evidence at the vacant property, sir.
Q: And [defense counsel] asked you if you collected any evidence as to whether or not Mr. Sutton committed a crime that day. Do you recall that?
A: Yes, that is correct.
Q: Okay. And you took a statement from Mr. Philpotts[. W]ould you consider that evidence?
A: Yes, sir.
{¶51} The above exchange reveals that Officer Larkin did not vouch for the
credibility of one witness versus the other. She testified that in the course of her
investigation, she received two statements that were inconsistent with each other — one
from Philpotts and one from Sutton. Officer Larkin did not testify that either Philpotts
or Sutton was telling the truth, nor did she give her opinion as to the veracity of their
respective statements. Rather, Officer Larkin testified that what Sutton said was inconsistent with what she learned during her investigation, which consisted of evidence
she gathered from the scene, including Philpotts’s statement. The officer’s testimony
regarding her investigative procedure and the decision to place Sutton under arrest was
not a comment on the truthfulness of Sutton’s statement and was therefore proper.
{¶52} Sutton’s fifth assignment of error is overruled.
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.
______________________________________________ TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and MARY EILEEN KILBANE, J., CONCUR