State v. Walker

378 N.E.2d 1049, 55 Ohio St. 2d 208, 9 Ohio Op. 3d 152, 1978 Ohio LEXIS 637
Ohio Supreme Court·Decided July 26, 1978·No. No. 77-984·Published·Cited by 269 cases

Opinions

Per Curiam.

I.

Appellant, in his first proposition of law, essentially asserts that the evidence presented at trial did not attain the requisite degree of proof needed to support his conviction. Our consideration of this proposition is limited to an examination of the record at the trial to determine whether the evidence presented, “which, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” Atkins v. State (1926), 115 Ohio St. 542, 546. This review is thus confined to a determination of whether there was substantial evidence. State v. Sheppard (1956), 165 Ohio St. 293, paragraph five of the [211] syllabus; State v. Stewart (1964), 176 Ohio St. 156, 160.

A review of the record reveals that appellee produced the testimony of two accomplices, Davidson and Ogeltree, as to appellant’s participation in the crime. Ogeltree testified that he saw appellant shoot the decedent. The record also contains the in-trial identification of appellant as the decedent’s murderer by Rene Clark, an uninterested eyewitness. Her in-court identification of appellant withstood a vigorous cross-examination by appellant’s counsel. Furthermore, the decedent’s wife, Mrs. Mack, testified that the appellant looked “very much like the man” who shot her husband. The testimony of Mrs. Hart, introduced by the appellee, corroborated the testimony of Davidson and Ogeltree with respect to their and appellant’s fleeing the scene of the crime. Mrs. Hart, who lives in the proximity of the A & P food store, testified that on the morning of July 22, 1972, she observed two ears traverse the street where she lives at a very high rate of speed. Mrs. Hart stated that the first ear was white and occupied by two males, and the second was a brown compact and was driven by a man with a rough complexion similar to the appellant’s. Appellee also produced, in addition to the testimony of Davidson and Ogeltree, three other witnesses, who stated at trial that they had seen the appellant in Cleveland and free of custody during the period the records of the Cuyahoga County jail reflect his confinement therein.

Appellant, in his first proposition of law, does not argue the inadmissibility of any of the preceding evidence. Instead, appellant at first reiterates the evidence that was produced during the trial with respect to his alibi of incarceration in the Cuyahoga County jail on the date of the murder, i. e.: (1) The court and jail records show he was in jail on that date; (2) inmates testified that he was in jail continuously during the period of confinement; and (3) no evidence of appellant’s escape from or surreptitious re-entering into the jail was produced at the trial. Appellant then proceeds to recount the evidence presented against him. He argues with respect to the' testimony of [212] Davidson and Ogeltree that they testified with the hope of leniency, referring to the Stark County prosecutor’s promise to send a recommendation to the Governor. Appellant also states that Ogeltree bore malice toward him because of appellant’s involvement with Ogeltree’s former wife. Furthermore, appellant argues that it was revealed at trial that Ogeltree had told three people that appellant was not involved in the robbery and murder. Concerning the testimony of Rene Clark, appellant cites her earlier identification of a person other than appellant as the decedent’s murderer. Moreover, appellant states that there was testimony that, after Rene Clark failed to identify appellant in a lineup, she was verbally abused by Sergeant William Newkirk of the Canton Police Department. Appellant thus implies intimidation with respect to her in-trial identification of appellant, but the record reveals that she denied this and stated that her earlier misidentification was the intentional product of her fear. Appellant continues to proceed with his refutation of appellee’s evidence. This court, however, discerns little utility in complete reiteration of appellant’s argument.

It is readily apparent that appellant, in his first proposition, is not asserting the insufficiency of the evidence presented at trial, but is engaging in an attack on the credibility of the evidence. Clearly, the evidence produced by the appellee, “if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” At-him, supra, at page 546. Credibility is a question of fact to be determined by the jury and a reviewing court should not substitute its judgment for that of the jury. State v. Kehn (1977), 50 Ohio St. 2d 11; State v. Wolery (1976), 46 Ohio St. 2d 316. This court’s recent statement in Feliciano v. Kreiger (1977), 50 Ohio St. 2d 69, 72, is controlling in this cause:

“Since reasonable minds could reach different conclusions concerning this testimony, determination as to what occurred was a question of fact for the jury. * * * State v. Antill (1964), 176 Ohio St. 61. This court on review will [213] not disturb this jury finding so long as there was competent evidence to support it. * * *”

Determining, therefore, upon our review of the record that there was substantial evidence presented which, if believed, would convince the average mind of defendant’s guilt beyond a reasonable doubt, we find no merit to appellant’s first proposition of law.

II.

Appellant, in his second proposition of law, alleges that for the reasons stated in his first proposition the verdict in the instant cause was clearly against the weight of the evidence and that the Court of Appeals failed to weigh the evidence.

We find no merit to appellant’s second proposition of law. It is the function of the jury to resolve the facts of the case and determine the credibility of the witnesses before it. State v. Clay (1972), 34 Ohio St. 2d 250. Thus, it is the accepted rule in Ohio that, where there is a conflict of evidence, the jury is to resolve the conflict, and its judgment will be affirmed if there is substantial evidence which, if accredited, would prove all elements of the crime. State v. Clay (1972), 29 Ohio App. 2d 206, affirmed State v. Clay, supra (34 Ohio St. 2d 250). In the instant cause, the Court of Appeals stated, in its opinion:

“Upon a careful consideration of the entire evidence, we find ample competent evidence, which if believed by the triers of fact, warrants a finding of guilty beyond a reasonable doubt of the crime as charged. * * *”

The second assignment of error is, accordingly, overruled.

III.

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State v. Walker, 378 N.E.2d 1049, 55 Ohio St. 2d 208, 9 Ohio Op. 3d 152, 1978 Ohio LEXIS 637 (Ohio 1978).

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