UIR.IGdNAL

IN T4-IE StJI?REME COURT OF t)fIl€J

ST^-^`['.E OF 01-1I0,

Plaantaff Appellee,

vs,

C'ase No.

011 Appeal from theC-OiIntV C.^uft of Appe,,ils

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Ct^ErIK OF COURTPREME COURT OF C

TABLE OF C:`Olod'I'ENTS

t a gL- _No.

EXPLANATIC.7N OF WFIY T.[:IIS IS A CASE OF PUBLIC OR. GREATGENERAL IN^EREST AN1rJ INVOLVES A SLiI3STANTIAl ,CONSTITUTIONAL QUFSI IC.9N ................................ ......... .................................... . .............. ...

S TA1EMEN"1 Ol". ,1 HE CASE ANTD FAC f S..... ..... .. ..... ... . .................................. .... .. .. r^..

ARCxL)MENT IN SLPPC}R`l` OF 1'ROi'(3SyTIt}N OF LAW ........ ......................... .. ^.'.,

PRt3I'OSI`I'ION OF LAW: . .... ............ ................ . .... ............. .................... . ......^ ^..

C'ON(;`LUSION ................................ ................................ .... ..................................... .....^..^

CER'I'IFICAI'E OF SERVICE ... . .... ... ....................

APPENDIX

........ ..... ........ .. ........................ .^. ^...

Tucf^rne^lt I^^tt^' ^^nti C^^Si^^ic^ri, Cc^LIzt of Appeals, ^ ct>L6lYtv,{ DATE ................... . ............A-I

i

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC:' OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTION QUESTION.

"Ineffective Assistance Of Appellate Council"

Effective assistance of council is vitally important during the appeal process.Issue and errors need to be bought forth concerning the original trial otherwisea case may -sM be rendered meritl.ess without reviewing all facts.

I

STATEMENT OT+̀ THE CASE AND THE FACTS

STATEMENT OF TBE CASE

On November 25, 2012, a Portage County Grand Jury indicted the defendant-appellant,

Patricia Stephenson, (hereinafter appellant) for one count of Felonious Assault in violation of

ORC 2903.1 I with a three year gun specification and for one coiuit of Ki.dnapping in violation of

ORC 2907 with a three year gun specification. (T.d.1).

On November 16, 2012, the appellant entered a plea of not guilty at her arra btrnn7ent.

(T.d.6). On March 12, 2013, a ju -̂^°y trial ensued. (T.d.49). On March 15, 2013, the ji:ry returned

its verdict. (T.d.53-55). The jury returned a verdict of not guilty to count one and guilty to count

two along with a guilty verdict on the gun specification.

On. April 8, 2013, the trial court sentenced the appellant as follows: four years on count

two, Kidnapping plus three years for the ,^un specification for a total term of incarceration at a

state penal institution of seven years. (T.d.60,63)>

A timely notice of appeal was filed. This brief and assignment of error follows.

4 ° '̂

STATEINIENT OF T'HE FACTS

This case arose from an incident which occurred in Kent, Ohio at the Campus Pointe

Apartments. The victim, Jawn Holmes, argued that he had a gun pointed at him and during his

struggle to relieve the weapon from the appellant that a shot was fired into the cei.ling. .He was

held in the apartment against his will by the appellant and a male named Antonio.

The defense argued that both Jawn Holmes and Grace Warren set them up after a

confrontation that went awry. Grace lured Antonio to her home to pick up a speakCr. Holmes

was to confront Antonio for having spent the night with his girl-friend Grace Warren. Holmes

was the only one who brought a weapon to the altercation. The appellant was an tu-iwztting

person who was merely a bystander. She had simply provided a ride to Antonio that evening.

State's Case

Grace Warren, lived in Campus Pointe Apart ments. On the Saturday prior to the

incident, she had a party at her apartment. Someone had brought a speaker to her party

(T.p.194). On October 29, 2012, she came home from work and parked her car. She ran into the

appellant and Antonio Stephenson on the steps (T.p.158). She knew Antonio from school. Had

no relationship with him other than friendship (T.p.159).

Antonio was looking for her boyfriend, Jawn Holmes. Warren let the appellant and

Antonio into her apartment while she called Holmes (T.p. 170). Holmes came upstairs. When he

entered her apartment the appellant pointed the gun to Holmes' head and said "You're not goiilg

to mess -Mth my cousin" (T.p. 172). Warren was standing in the kitchen at that point.

Holmes raised his hands and went towards the door (T.p.175). The appellant stopped

him from leaving by following him and blocking the door with her body (T.p.176). The

appellant and Holmes began wrestling for the gun (T.p. 176). The gun went off and was fired at

#4

the ceiling (T,p.179), Antonio jumped on top of Holmes and choked and punched him (T.p. 180).

Hohnes pretended to have been shot and the appellant and Antonio ran out the door (T.p,181).

Warren called the police (T.p.181).

Warren at first thought the appellant was a rnan. She appeared manly and dressed like a

man (T.p. 183). Warren picked the appellant from a photo array (T.p. 198).

Antonio had attended her party. He had spent the night in her bed (T.p. 194). When

Warren went to work the next day, she left the speaker outside of her apartment and asked

Holmes to call police to come pick it up (T.p.195).

On cross examination, Warren admitted that Antonio had come to pick up his speaker

that he had left at her home the day before (T.p.201). A guy named Austin, who is Antonio's

friend, was the DJ at the party and brought the speaker (T.p.203). Warren denied telling

everyone at the party that she had broken up with Holmes (T.p.205). Warren was unable to

remember anything that she had told the Sheriff's department (T.p.209).

Warren admitted that she had texted Christopher Anderson and a guy named Austin but

that none of those text messages had anything to do with the speakers (T.p.9, Vol. 2). She

admitted that she deleted all of the texts prior to giving her phone to lau^ enforcement (T.p. 10,

Vol. 2).

Warren stated that Holmes did not know Antonio, Chris or Austin. (T.p. 1S, vol 2).

Warren identifies the video in which HoL^nes has a gun. However, she denied that he had ever

brought that gun into her apartment (T.p. 18, Vol 2), Holmes had stopped at his apartment after

the altercation to get his gun. Warxen denied concocting this story to protect Holmes (T.p.21,

Vol 2).

It 5

Jawn Holmes works maintenance at Campus Pointe Apartments. He had called the

Sheriff's department on October 29, 2012 to report a speaker left on the property (T.p.27, Vo12).

Sherzff's Uepartme.nt picked it up and took it to evidence room.

At approximately 11:00 pm, Warren called hi~n and said that two people were upstairs in

her apartment and she sounded worried (T.p.33, Vo12). When he arxived in Warren's apartment,

a feznale pulled a gun on him (T.p.33, Vol 2). He put up his hands, and started to back up.

The appellant came around the counter and said "you ain't going nowhere and put the

gun to his head (T.p.34; Vo12). She blocked the exit. He grabbed for her wrist and they

struggled (T.p.34, Vol 2). The male grabbed him from behind and tried to choke him (T.p.34,

Vol 2). Holmes pretended to have been shot when the gun went off. The appellant and the male

ran out (T.p.35, Vol 2).

Holmes ran down to his apartment to grab his gun. Attempted to chase them but was

unable to locate the two people (T.p.40, Vol 2). Holmes put the gun away prior to the police

arriving (T.p., Vol 2).

Holmes stated that the speaker was never mentioned while he was in the apartment

(T.p.48, Vol 2). Holmes admitted that he and Warrer_ had been fighting (T.p.59, Vol 2). They

argued about Warren cheating on him in, their relationship (T.p.60, VoI2). He did not attend her

party. Holmes admitted that he was aware that Antorzio had spent the night with Warren (T.p.60,

Vol 2). Holmes denied that he was seeking revenge against Antonio for sleeping with Warren

(T.p.69, Vo12). Holmes admitted to lying to law enforcement. He told them that he had a black

pipe in his hand then later admitted it was a gun (T.p.72).

46

Deputy Ryan Schindler was dispatched to Campus Pointe two separate t^mes on October

29, 2012. First he was called to pick up found property. Jawn Hoh-xzes turned in a speaker

(T.p.94, Vo12). The second call was a disturbance with a shot fired (T.p.97, Vol 2).

Detective Daniel Burns showed the photo array to both Grace Warren and Jawn Holmes.

They picked the appellant with 100% confidence (T.p.127-9, Vol 2).

Heather Leventry, the appellant's cellm:ate testified that the appellant admitted to having

a gun and firing the gun (T.p.138, Vol 2). The appellant claim:ed that Holmes and Warren set up

the appellant's brother, Antonio because he had slept with Warren (T.p.136, Vo12). The

appellant told her that Holmes had been threatening her brother via text messages (T.p.136, Vol

2).

Lieutenan.t Gregory Johnson found out that there were text messages sent between

Warren and the two other males. Chris Anderson, a 1'riend of Antonio, brought his phone in so

that Lt. could process the phone (T.p.145, Vo12). Lt. interviewed the appellant. He told the

appellant that there was a video that showed her leaving the apartment putting a gun in her

pocket (T.p.148, Vol 2). The appellant did not deny having a gun. She indicated that the gun

could be retrieved (T.p. 152, Vo12). She also admitted to being at the incident (T.p. 152, Vol 2).

Lt. Johnson admitted that no gun shot residue had been tested for. He confirmed that

Holmes did in fact lie about having a gun (T.p.171, Vol 2). He also confirmed that Warren had

lied about the text messages (T.p. 172, Vo12). Lt. Johnson confimed that it was known at the

party that Waz:en was broken up with Holmes (T.p.172, Vol 2).

Lt. John.son retrieved the text messages. One of them from Warren stated that if Antonio

did not come and pick up the speaker by 11 pm it would be gone (T.p. 176, Vol 2). There was a

,6 *7-

text that stated "He said he beating somebody's ass" (T.p.178, Vo12). There was a total of a b

text messages going back and forth (T.p.181, Vol 2).

Defense Case

Christopher Anderson was friends with both Grace Waxren and Antonio Stephenson. He

attended Warren's party (T.p.201, Vol 2). He was aware ofher relationship with Jawn. Holmes.

He relayed the text messages that she had sent to him to Antonio (T.p.204, Vol 2). He met with

Lt. Johnson to give him the text messages.

Tosha Jones lived in Campus Pointe Apartments. She heard the fight that night. She

looked out her door but did not see anyone with a gun (T.p.21 S, Vo12).

The facts will be niore fully discussed in the following assignment of error.

4 IF

PROPOSITION OF LAW

I i

TAi3LE OF CONTENTS ANll ASSIGNMF1VT OF ERR(JR

STATEiVfENT OF THE CASE .................................... ........e............................... ............... . . ,....1

STATEiVIENT OF THE FACTS.............. .......... ............. .......... ................................ .... ....,....,..2

LAW AND ARGUiV1ENT..., .. .... ............... ...... ................................. ,..<.,............,.,..7

ASSIGNMENT OF ERROR............. .. . ..................................... .....,.......................,..,....7

The verdict was against the manifest weight of the evidence where the victim and witnesswere dishonest throughout the testimony and no other evidence could support theirinconsistent and unbelievable version of events.

ISSUE PRESENTED FOR REVIEW AND ARGUMEiv'T ........................ . ......... ......... .. ......7

Whether the jury verdict was against the weight of the evidence where thewitness and witness victim lied to law enforcement during the investigationand during trial. The testimony was unreliable and should not have beenrelied upon to reach a guilty verdiet.

AUTHORITIES

Cases

Glasser v. United States (1942); a 14 U.S. 60 ...................................... ................. ..... ............,...8

Jackson v. Virainia (1979), 44 3 U.S. 307 ..................... .............. 9

State V. DeHass (1967), 10 Ohio St.2d 230 ........................................----- ....................................... . ...9

State v. Get^ (1998), 84 Ohio St. 3d 180, 193 ...................... ....:.... . ....................... .. .....,.10

State v. Martin ( 1983), 20 Ohio App.3d 172 ............

State v. Mattison (1985), 23 Ohio App. 3d 10 .......... ........... ........... ............ ............ ..... 0...9

State v. Robinson (1955), 162 Ohio St. 486 ................. ...... ..._ ,......,....... ... ..................... .....,.. 8

State v. Robinson. (1976), 47 Ohio St.2d 103 .... ......... .:....:...... 9

State v. Thompkins (1997), 78 Ohio St.3d 380 .............................. .......... ............... ..9

State v. Thom kins, supra....................... ........................................... . ............................... ...11

StateLex rel. Squire v. City of Cleveland (1948), 150 Oliio St. 303 .......................... 8

Tibbs v. lr•lorida (1982), 457 U.S. 31 ...... ........: .................:.................... ........,:9

16.

Section 3(B)(3), Article IV, Ohio Constitution ...................................... g

CONCLUSION........ ... .. .. .. ..... ............................ ........ .............................. ... ... ............13

SERVICE ...... ......... ...................<... . ...,. . ...............,..............<. . ...,. .,....,.......,..,,......... .14

APP1•3NDIX.......................... ... .. .. ....................................... ........................... ...... ...........15

j]

LAW AND ARGUMENT

.A.S SIG?y1VIENT OF ERROR

The verdict was against the manifest weight of the evidence where the victimand witness were dishonest throughout the testimony and no other evidencecould support their inconsistent and: unbel°aevabie version of events.

ISSUE PRESENTED FOR REVIEW AND ARGUMENT

Whether the jury verdict was against the weight of the evidence where thewitness and witness victim lied to law enforcement during the investigationand during trial. The testimony was unreliable and should not have beenrelied upon to reach a guilty verdict.

Trial court verdicts are assailable. Although a sufficient legal basis may arguably exist to

sustain a convictiort, the evidence forming that basis must be credible. If the verdict is based on

evidence so incredulous or incongruous that no reasonable juiy could rest the verdict upon its

legitimacy beyond a reasonable doubt, a reviewing court must reverse the conviction and order a

new trial.

Thejury verdict finding of guilt is against the weight of the evidence. The jury

necessarily relied upon the testimony of Grace Warren and Jawn Holrnes to reach its verdict.

There is simply no other evidence. Objectively, the evidence establishes that the appellant was at

the apartmnt of Grace Warren with her brother Antonio. Both Warren and Holmes admittedly

lied to law enforcement during the investigation of the incident. There was simply no credible

evidence to support a verdict of guilty for kidnapping with a gun specification. There was no

physical evidence consistent with the appellant's guilt adduced by the state, No gun was ever

found. It could not be deterrnined how long the bullet was in that ceiling, or even if it had been

^ I ^L

fired by a gun in the possession of the a.ppellant.

The testimony of Grace Warren and Jawn Holmes cannot be believed. It is inherently

inconsistent with the facts. By their ow-n admissions they lied to law enforcement. The

testimony could not be believed beyond a reasonable doubt.

Weight - Case Law

A challenge to a conviction upon the grounds that it is contrary to the weight of the

evidence, unlike a challenge based on insufficiency, has no basis in the Federal Constitution,

e.g., Glasser v. United States (1942), 314 U.S. 60, 80. Rather, it is an additional safeguard which

Ohio and other states erected long ago to act as further restraint on fact-finders. Section 3(B)(' )),

Art. IV of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence

andependently of the fact-finder. This authority gives the courts of appeals the "power to decide

that such verdict is a,gainst the weight of theevidence." State v. Robinson (1955), 162 Ohio St.

486, 487, (emphasis in original).

The appellate court's power to weigh the evidence is not discretionary. The Ohio

Supreme Court has held that a court of appeals "has the authority and the duty to weigh the

evidence and to determine whether the findings of ... the trier of fact were so against the weight

of the evidence as to require a reversal and a remanding of the case for retrial." State, ex re1_

^uxre ti e Cit T^of Cleveland (1948), 1.50 Ohio St. 303, 345 (emphasis added). When an appellant

properly raises the question of the weight of the evidence, an appellate court must make its own

weighing of the evidence.

A reviewing court can review that wl2ich is normally entrusted to the fact-fin:der: to

determine the believability of the evidence in the record and to make a judgment as to where the

4':-1

"weight" of the testimony lies. In making this decision, the court is required to utilize the normal

tests for considering the believability of testimony:

1) certainty of the evidence;

2) reliability of the evidence;

3) interests of the witnesses;

4) whether the witnesses were impeached;

5) whether the evidence was uncontradicted;

6) consideration of what was not proved; and

7) which evidence was vague, uncertain, conflicting, fragmented, or not fitting together in alogical order.

State v. Mattison (1985), 23 Ohio App. 3d 10.

In other words, the reviewing court sits as the "thirteenth juror." If it disagrees with the

jury's resolution of the conflicting testimony, a new trial is in order. Moreover, by definition,

such reversal can only occur after the state has presented sufficient evidence and the jury returns

a conviction. Tibbs v. Florida (1982), 457 U.S. 31, 42.

A suf.f.iczency appeal challenges the uantit of the evidence; it asserts that there was not

enough evidence to prove the elements of the crime charged. Jackson v. Virginia (1979), 443

U.S. 307; State v. Robinson (1976), 47 Ohio St.2d 103. An appeal attacking the weight of the

evidence, on the other hand, challenges the ualitv of the evidence; it says the evidence was of

such poor or unreliable quality that, regardless of its quantity, it cannot support a guilty verdict.

Tibbs v. Florida (1982), supra. A conviction that is against the weight of the evidence nnust be

reversed and remanded to the trial court for a new trial. State v; Thom kins (1997). 78 Ohio

St.3d 380.

f i,4

Present Case

It is important to note that the weight of the evidence and the credibility of the witnesses

are issues primarily for the trier of Iact. State v. DeHass (1967)9 10 Ohio St.2d 230.

Nevertheless, appellate court are required to determine whether there is substantial evidence in

the record upon which a j ury could reasonably conclude that all the elements have been proved

beyond a reasonable doubt. State v. Getsy (1998), 84 Ohio St. 3d 180, 193. In this case, there is

not. Even giving due deference to the fact-finder, it mL1st be determined that this verdict is

against the manifest weight of the evideilce. I'he only evidence at trial which pointed to the

appellant as the perpetrator of a kidnapping in this case came from the testimony of Grace

Warren and Jawn Holmes. Both are admitted liars. They were in a relationship together and had

been fighting. Warren slept with Antonio, the appellant's brother the evening before. Holmes

was aware of that and was angry. They set up Antonio to show up that night to pick up a

speaker. The appellant was sirnply present to give her brother a ride.

A thorough review of the record will indicate that the appellant simply had nothing to do

with this entire matter other than being present. The drama was between Antonio, Warren and

Holmes. Warren and Holmes admittedly fought over her cheating on him. She had Antonio

spend the night in her bed that evening.

According to Lto Johnson, everyone at the pai-iy was aware that Warren and Holmes had

broken up (T.p.172, Vo12). I.A. Johnson confirmed that Warren had lied about having texted

Antonio and his friend about the speaker, In fact, Lt. Johnson was able to retrieve those texts

from the recipient's phone (T.p. 176, Vol 2). There were not just a few text messages, they

totaled 36 in number> Warren did not just lie about text messages, but in fact deleted all of the

texts from her phone including the contact information.

4JO 1

Just as incredible is thati-J:olmes lied about having a gun that night. His excuse was that

he was worried about getting fired. Holmes lied to law enforcement who were investi;ating this

incident about having a gun that night. He told them he had a pipe (T.p.72, Vol 2). When

confronted with the video tape that clearly showed he had a gun, he fina.lly adm:itted:

A rational trier-of-fact should not have relied on the testimony of those two people. No

real investigation was doneo No gun-shot residue tests were done on either Holmes or Warren.

No gun was ever recovered. Law enforcement did not bother to take Holmes' gun to test to see

if it had been the gun fired that evening.

Aside from the significant inconsistencies in Holmes and Warren's testimony, there is

simply no reason for the appellant to have been involved in the altercation at all. The appellant

was simply there to give a ride to her brother.

It is just as consistent with the lies and set up that Hlmes and Warren wanted both

Antonio and his sister, the appellant to get in trouble. They lured Antonio to the apartment to

pick up the speaker. LTnbeknownst to thern, his sister drove hirn< Holmes was angry that

Antonio had spent the night with his girlfriend and planned to seek his revenge. Unfortunately

for the appellant she happer_ed to agree to drive Antonio to pick up the speaker. After the many

lies told by Holmes and Warren it is simply irrational for the jury to have believed any part of

their unbelievable story.

Sunun.ary

In State v. Thonnpkins, supra, the Ohio Supreme Court noted that a weight review should

be conducted as follows:

The Court, reviewing the entire record, weighs the evidence and all reasonable

4 ► zp

inferences, considers the credibility of witnesses and determines whether inresolving conflicts in the evidence, the jury clearly lost its way and created such amanifest miscarriage of justice that the conviction must be reversed and a newtrial ordered. The discretionary power to grant a new trial should be exercisedonly in the exceptional case in wMch the evidence weighs heavily against theconviction. Id, citing State v. Martin (1983), 20 Ohio App.3d 172.

In the presetlt case, after a review of the record and weighing the evidence, this Court will

find that the jury clearly lost its way. In finding the appellant guilty of kidnapping with a gun

specification; a manifest miscarriage ofjustice was done and the conviction should be reversed

and a new trial ordered. The evidence in this case weighs heavilv against the conviction. The

appellant's rights under the Fiifth, Sixth and. Eighth Amendments of the United States

Constitution and the respective sections of the Ohio Constitution were violated.

Is ^t -1

APPENl11Y

The Prosecutors failure to properly investigateviolated my 14th Amendment Constitutional rights.

It is a violation of "due process" of Appelant when the prosecution failed toretrieve the gun the Victim (Holmes) had during the commencement of the accusedcrime. Victim and witness was allowed by prosecutors to give false testimony regard-ing evidence misleading the jury to verdict in error. Gun in question was then notin evidence for testing.

The investigation was limited by the police uncritical readiness to accept thestory and suggestions of witness and victim who's account were inconsistent to thepoint.

A prosecutor remains responsible for gauging that effect regardless of anyfailure by the police to bring any favorable evidence to the prosecutors attention.

The prosecutors failure to disclose the evidence that would have supported"fairness" cannot be stretched to the point of calling this a fair trial (6th Amend.-ment) under such circumstances the state did not have a "massive" case.

The prosecution alone which knew what is disclosed is assigned the respon-sibility of the evidence and to make disclosure when the point of "reasonable"probability" is reached. The individual prosecutor has the duty to learn of anyfavorable evidence known to others on behalf of the government including police.whether they succeed or fail at this in good faith or bad faith. The prosecutorsresponsibility for failing to investigate or disclose known, favorable evidenceraises to material level of importance is inescapable. (Kyles vs. Whitley 514 us419 (1995).

The question is not whether the Appellate would more likley than not havereceived a different verdict with evidence, but whether in it's absence to receivea fair trial. Understand as a trial resulting in a verdict worthy of confidence. A"reasonable probability" of a different result is accordingly shown.

When the government evidentiary suppression underminds confidence in the outcomeof the trial, the prosecutor must be assigned the responsibility of gauge to thelikely net effect of all evidence.

CONCLUSION

:IGNATURL

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CERTIFICATE OF SER4'ICE

I hereb^-° cet-tify^ that a^..c^py of tlle fo3-e^;®ing .^Te13ic^^^aradurr^ in SuPpc,rt of Jurisdiction was

forwarded bv regular U.S. Mail to Prosecasti7ig Attorney.,.e(" 'Y

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DEFENDAId T tA1'PEL,LARI T, PRO SE

-0 E'4

IN TI-IE SUPREME COURT (3F{3:1-II0

STATE OF OHIO,

Plaintiff-Appellee,

Vs.

C' *^ ., '- 'i I:-: 4t''; '.,.;^l rf

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Det'enda,nt-Appe1(ant.

Case No.

On Appeal f'rorri the :> -C;oLint^^ C;c^tai-t of Appeals °

r'1ppellate District

C.A. Ca.se No.

APPENDIX TO

Ib1EMORANDIJM I-N SI.TPPOR`^ OF JI:1RISDICTIONOF APPELLANT 00,

32014; M ON 0 11 3 A, PM COM PLEAS CLERK FAX Iv'o. 33C 297 4554 f. 001f006

..,;:^i-,

iN THE COURT OF APPEALS FlLEJ)COURT OF APPF-A{S

ELEVENTH APPELLATE DISTRICT MAR 3 1 2014

PORTAGE COUNTY, OHIO IiNDA K FANKNAUSER, CtFRt{POPTAGE CO(lNTY. QHIO

STATEOFCHIO, .OPINION

Plaintiff-Appellee,

- vs - CASE NO. 2013-P-0044

PATRICIA J. STEPHENSL)N,

Defendant-Appellant.

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR0752.

Judgnlent: Affirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, AssistantProsecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Patricia J. Smith, 9442 State Route 43, Streetsboro, OH 44241 (For Defenrjant-Appellant).

THOMAS R. WRIGHT, J.

(¶1j rhis appeal is from the Portage County Court of Common Pleas.

Appellant Patricia J. Stephenson was convicted of kidnapping, a first degree felony, in

violation of R.C. 2905.01(A)(3) with a firearm specification in violation of R.C. 2929.14

and R.C. 2941.145. At issue is whether appellant's conviction was against the

manifest weight of the evidence. For the following reasons, we affirm.

{12} On October 27, 2012 Grace Warren held a party at her apartment. A DJ

brought speakers to the party; however, after the party ended, one speaker was left at

An>'3 1 /2 014i'iG90 N Ci; : 3 4 pIM, CCJM PLEAS CLERK N1 N3. 330 207 4554 F, 002!00E

Warren's apartment. On October 29, 2012, Antonio Stephenson and appellant came to

Grace Warren's apartment to retrieve the speaker. After this point, appellant's and the

state's version of events diverge.

f¶3} According to the state, once Antonio and appellant were insi(le the

apartment, Antonio asked Warren where her boyfriend Jawn Holmes was Iocated.

Warren then called Holmes, who lived on a floor below her apartment, to come up to

her apartment. When Holmes arrived, he walked toward Antonio and said, "irdhat's

up?" At this point, appellant pulled out a gun, pointed it at Holmes' head ard told

Holmes, "You're not going to mess with my cousin, "'

(14} In response Holmes indicated that he was going to leave, put his hanos

above his head and walked to the door; however, appellant blocked his access to the

door with her body. Halmes. reached for the gun and a fight ensued. At some point

during the struggle, appellant fired a shot that went into the ceiling of Warren's

apartment. Holmes, however, pretended that he got shot, and appellant and Antonio

subsequently fled. When the police arrived at the apartment, they discovered a .22

caliber casing near the door.

{¶5} At trial, appellant presented a different story. On cross-examination of the

state's witnesses, appellant attempted to illustrate that Holmes had pressured Warren

to help him violently confront Antonio when Antonio came to the apartrnent. Appellant

sought to show that Holmes' motive for staging the attack originated frorl his

discontent that Antonio slept with Warren on the night of the party. Consequently,

1. There is some confusion about whether Antonio was appellant's cousin or brother. Aside from thisinstance, we wilf refer to Antonio as appeUant's brother as that is how he was portrayed the majority of thetirrte.

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appellant maintained that she was an innocent bystander that, through bad luck,

became a victim in Holmes' and Warren's setup.

{1fO Appellant also attacked the credibitity of the prosecution's witnesses.

Specifically, appellant attacked Warren's credibility because she lied to the police

during the investigation. When the police requested Warren's cell phone as evidence,

Warren told the police that she had not deleted any text messages from her phone.

However, later it was discovered that she had sent some text messages to a friend

shortly after the incident that were not in the police's log of her text messages,

According to Warren, she had forgotten about deleting the text messages.

{¶7} Appellant challenged Holmes' credibility because he lied about possessing

a gun. Specifically, after appellant and Antonio fied the apartment, Holmes went back

to his apartment and grabbed a firearm to go after the Stephensons. However, when

he was questioned by the police, Holmes initially lied about possessing a gun. Holmes

stated that he lied because gun possession would be grounds to be fired from his job.

{¶S) Finally, appellant also questioned why the police officers did not perform a

gunpowder residue test to determine who fired the gun.

{yj9} As her sole assignment of error, appellant alleges that:

(¶10} "The verdict was against the manifest weight of the evidence where the

victim and witness were dishonest throughout the testimony and no other eviclence

could support their inconsistent and unbelievable version of events."

{111) Within this assignmen't of error, appellant claims that Warren's and

Holmes' entire testimony was incredible because each had lied to the police.

Specifically, appellant claims that Warren lied about deleting text messages frorn her

phone near the time of the incident and that Holmes lied about possessing a gun on

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the night in question. Appellant also claims that because the gun she allegedly used

was never found, reasonable doubt exists as to whether she was responsible for the

bullet hole in Warren's ceiling. Instead, appellant claims that the jury should have

believed that (1) Warren and Holmes were planning on seeking revenge on appi'llant's

brother because Holmes was upset that Antonio allegedly slept with Warren and (2)

appellant happened to be an innocent bystander in the set up.

(T12} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994

Ohio App. LEXIS 5862, "13-15 (Dec. 23, 1994):

(¶13} "'Sufficiency' challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the jury, while 'manifest

weight' contests the believability of the evidence presented.

{$14} "'[M]anifest weight' requires a review of the weight of the evidence

presented, not whether the state has offered sufficient evidence on each element of the

offense.

(¶15) "In determining whether the verdict was against the manifest weight of the

evidence, '*"'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. (Citations omitted.) (Emphasis added.)` Davis, 49 Ohio App.3d at 113.

{J[16) Under R.C. 2905.01, kidrtiapping,is defined as follows:

(117) "(A) No person, by force, threat, or deception, or, in the case of a victim

under the age of thirteen or mentally incompetent, by any means, shall remove another

from the place where the other person is found or restrain the liberty of the other

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person, for any of the following purposes: '**(3) To terrorize, or to inflict serious

physicai harm on the victim or another."

{¶18} Under R.C. 2929.14(B)(1)(a)(ii), to prove the firearm specification, the

prosecution needs to show that "°the offender with having a firearm on or about the

offender's person or under the offender's control while committing the offense and

displaying the firearm, brandishing the firearm, indicating that the offender pos:>essed

the firearm, or using it to facilitate the offense."

(119) Upon reviewing the evidence, the verdict is not against the manifest

weight. None of the inconsistencies in the prosecution's key witnesses went to

elements of the crime, nor do these inconsistencies demonstrate the witnesses are too

incredible to be believed on any matter. Furthermore, there is evidence from a

jailhouse informant, Warren, and Holmes, as well as a .22 caliber casing found near

the doorway in Warren's apartment indicating that Stephenson fired a shot from a.22

caliber gun into the ceiling of Warren's apartment. The jury did not lose its way

resolving the witnesses' credibility the way it did.

f¶20} The sole assignment , of error, - is without merit.

Portage County Court of Common Pleas is therefore affirmed.

TIMOTHY P. CANNON, P,J., concurs,

COLLEEN MARY O'TOOLE, J., concurs in judgment only.

The judgment of the

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^AR;1/20?4/^G^GI^{ 0; 3^ ^T,rI COM PLEF^S CLERY rP,;{ ha. 3^D l^i? 4554 1 006/006J

STATE OF OHIO

COUNTY OF PORTAGE

STATE OF OHIO,

Plaintiff-Appellee,

l IN THE COURT OF AP^PEALS) SS.

ELEVENTH DISTRICT

JUDGMENT ENTRI(

FtLEUSE NO. 2013-P-0044vs - COURT OF ,APPEAl:,fi,

PATRICIA J. STEPHENSON, MAR 3 12014

Llefendant-AppeflariW^DA K aANhHAUaER, CLERKPORTAGE CC3UNTY, UHiQ

For the reasons stated in the opinion of this court, appellant's assignment

of error is without merit. It is the judgment and order of this court that the

judgment of the Portage County Court of Common Pleas is affirmed.

Costs are taxed against appellant.

7a &HOMA.WRIGHT

TIMOTHY P. CANNON, P;J., concurs,

COLLEEN MARY O'TOOLE, J., concurs in judgment only.