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State v. McClelland

December 4, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KEVIN D. MCCLELLAND, DEFENDANT-APPELLANT.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 06CR02-1048).

The opinion of the court was delivered by: Sadler, J.

(REGULAR CALENDAR)

OPINION

{¶1} Defendant-appellant, Kevin D. McClelland ("appellant"), appeals from the judgment of the Franklin County Court of Common Pleas, entered upon a jury verdict finding appellant guilty of one count of felonious assault, a felony of the first degree, and one count of assault, a felony of the fourth degree.

{¶2} This case began on February 9, 2006, when the Franklin County Grand Jury indicted appellant on one count of felonious assault, a felony of the first degree, and one count of assault, a felony of the fourth degree. Trial commenced on January 23, 2008, and on January 30, 2008, the jury found appellant guilty on both counts. The trial court immediately imposed a sentence of four years of incarceration on count one and a concurrent sentence of 18 months on count two. The trial court journalized appellant's conviction on February 1, 2008, and appellant filed a motion for delayed appeal on March 12, 2008, which we granted.

{¶3} On appeal, appellant advances a single assignment of error for our review:

THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING APPELLANT GUILTY OF FELONIOUS ASSAULT AS THAT VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶4} "A conviction based on insufficient evidence constitutes a denial of due process." State v. Rawls, Franklin App. No. 03AP-41, 2004-Ohio-836, ¶25, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. The Supreme Court of Ohio outlined the role of an appellate court presented with a sufficiency of evidence argument in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus:

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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.

See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.

{¶5} This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717. Rather, the sufficiency of evidence test "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, supra, at 319. Accordingly, the weight given to the evidence and the credibility of witnesses are issues primarily for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 80, 24 O.O.3d 150, 434 N.E.2d 1356. The reviewing court does not substitute its judgment for that of the fact finder. Jenks, supra, at 279.

{¶6} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a "thirteenth juror." Under this standard of review, the appellate court weighs the evidence in order to determine whether the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins, supra, at 387. The appellate court, however, must bear in mind the trier of fact's superior, first-hand perspective in judging the demeanor and credibility of witnesses. See State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. The power to reverse on "manifest weight" grounds should only be used in exceptional circumstances, when "the evidence weighs heavily against the conviction." Thompkins, supra, at 387.

{¶7} We begin by recapitulating the facts adduced at trial. On August 26, 2005, at approximately 4:45 p.m., appellant boarded a Central Ohio Transit Authority ("COTA") bus at the intersection of Woodruff and High Streets in the University District of Columbus. Upon boarding the bus, appellant swiped a discount card and deposited the discount fare of 60 cents. However, the fare box indicated that appellant's discount card was invalid. The bus driver, Mia McBride ("McBride"), asked to see appellant's pass, whereupon he replied, "bitch, I already told you the pass isn't no good." (Tr. Vol. I, 59.) When McBride informed appellant that he was required to deposit an additional 10 cents, appellant replied that McBride either needed to refund his 60 cents or give him his desired transfer or, "if you don't, I am going to fuck you up." Id. at 61, 77. McBride testified, "he kept telling me he was going to kill me * * *." Id. at 75. However, the fare box did not allow her to refund appellant's money.

{ΒΆ8} During this argument, McBride became concerned and pushed a "priority" button and requested assistance from COTA's radio room. McBride pulled the bus over, opened the doors and asked appellant to exit the bus. She informed him that she was calling the police, whereupon appellant walked to the back of the bus, took a seat, and stated, "I am not going anywhere. You can call the white pigs." Id. at 62. When McBride resumed talking to radio room personnel, appellant walked back toward the front of the bus and, according to McBride, told her to get out of her seat and that "he was going to fuck me up." Id. McBride hit a panic button, which activated a two-way walkie talkie feature that allowed the ...


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