QRIGINAI. - sconet.state.oh.us QRIGINAI. State of Ohio, PlairstS:ff•Appellee James J..rciiy...

QRIGINAI.

State of Ohio,PlairstS:ff•Appellee

James J.

.rciiy Wolford

Pickaway Cozsrty Praacev.ztbr

203 S. Scioto Olt. Box 910

Circlevi22e, ihi.e, 43113

Counsel £csr. 4ppe? 1ee

James J. Hollis 606-669

P.O. Bo

telanc?n, Oh.io 45036

Pro-se

SEP 2 0 2010

Ci?G'R.T OF APF'k'ALS, 'TM KVRTt3 APPELL.A.TE

DTS`TP,TC'T< MT[dT OF APMLS CAaSF N"F:R

fA. t^ap. M-CA-3120

SEP 2 0 2010

F;L60 OF COURTSUPRLivlE t;OURT OF OHIO

^Ui r-

SEP t

CLERK W f;t;SUPREMECOuR?'

,

CLERK OF COURTSUPREME COURT OF OHIO

2ARE OF pMCEM

Exialmatian of vhy, ti-zi,s case is a case of great rubl.ic or general interest and

involves a substant;.al canstituti.csnal m^cst3.cn

reftsses 4.40 grant the appellant's rtile 29 niati.ors to

:quit whwn t?ie State fails to ataff.ic3.erst: ev9..denee to support a

conviction far, Casrap13.c3,t,y to Cammi.t Murderf th^ appellant's right's under the

5th, 6th and 14th amendments of t.'ie U.S. constitution ^rd under'the equivalent

articles of the Ohio constitution

Second on of Law

Wherz a Court of Iaw sust^,ains a convic

the evidence it violates

n' &s dG3e process e1.a.asses

C&DI2G.lUSifSTf

Certificate of Service

Appenciix

4tY: District Court of Appeals dea'

.5

EKk'LANATION OF WHY THIS CASE IS A CASE OF GRFAT PUBLIC OB GENERAL IIffi'EREST AND

INVOLVES A SUBSrANTIAL COlVSTI2VfI0NAL Qt1ESTI0N

This case involves the worst possible nightmare anyone in Ohio or the

United States even the world could possibly have. The fear that they will be put

into prison for life for a crime that they did not commit. A life sentence for a

crime that occurred 18 years before the prosecution charged him based on DNA

evidence that shows the Appellant to be a 1 in 642 chance of being the killer

when in fact not only did he not conanit the crime but has no knowledge of it.

Has the due process requirements mandated in both our State and Federal

Constitutions, determined specifically in RE WINSHIP 397 US 358, 90 Sct 1068,

(1970) and Jackson v Virginia 443 US 307, 99Sct 2781, (1979) been relaxed even

deteriorated in Ohio to the point that a conviction can be obtained against a

person who is a 1-642 to be the killer and placed in prison for the rest of his

life? This is hardly conclusive proof beyond a reasonable doubt as required in

Jenks, Winship and Jackson and both the constitutions of Ohio and the United

States. Surely this Cflurt will not stand idlely by and allow the standard

required by law to deteriorate to this low level. If allowed to stand as it is

nobody in this State will be safe from a wrongful conviction and all citizens

will most likely flee from the State. It is difficult enough to defend yourself

against a set of charges stemming from a crime that occurred 18 years earlier

but how does one defend themselves against the possibility they are guilty in a

group of possible candidates of 642. Both the Ohio and US Constitutions are

offended by this proposition and this court should accept jurisdiction and

correct this unconstitutional erosion of the Beyond a reasonable doubt standard

applied and upheld in Pickaway County.

(1)

The State of Ohio brouot this

County Gam.trt of Common Pleas. The Appellant

COmplicity to Aggravated Murder, O.R.C. 2903.01 (E>)

O.R.G. 2903.02 (A). The case was tried to a jury. -,vall<swir,p, t;:h

chief, Appellant's c.ausssel properly brought a Gr3.m, R. ?k>tiori to Acquit.

uia Ywas sustairted as to Co

;ravated Murder), but was denie.i as to C:aun

hiurder). 'It^e a

of Appeals uhi^h den

STAT

Somet.ime on July 20, 1990, ^Iary Clark w

lm-i.l.2.e, *iica. She wss 82 years old at

following u,ra c

ax

r

d r-,.harged with CaMlicity to the c

iin 642 vah3.eh is far frcxrr,

d was found

3.ndict "-n;

P

.n Pe.r. 'hr,

ty to

Vter match to the Appelant bwy* evon it is I

Appellant was tried before sit,tcy on May

(2)

the State

:arnrie.tion for eamplf.c3ty to c

under tfite. 5th, 6th and 14

equivalent Articles of the ChiO ODta

I.S. Gotts

R. 29 motit

2d 261. Pursuant to this rule aCoejrt

sball not order an e of acquittal if the evidence presented d is

sezeb that reasonable minds can reach different corie,

bIe doubt as

e.er3.d e. in the light most favorable to the prosecu

} 86 Chits App. 3d 546. Also see State v

ter the Rcale 29 motion was raised by the defmae

denied the matt

Riesti

?smilar and if the

of guilt cm one why then did it

aided or abet

did not taro" the essential el.onerit

er shoLild also have appli

At the close of the State's case in ohfef, tho- Appe1'

y ta

n the murder of Mary Csatt had not bew seaffic.isratly provw by the

State,

did not suppart a poss9.Ti,

State was required to prav+s

(3)

A close reading of tt

on a €ow pubic hairs found at the acame wi.l

the appellarat ° a DNA profile. ^ ver the &

ia solely

y of'

ndicatiN that the appellant

was not the rapist or ttae killer in this case is substantial. First i

that the saliva that was €atmdd in the area of ft bite mmrk on

breast couczt AiC1i' have e.nrne from tt-a a

a.s blood type throcgh his saliva, (T.p. 249). '3he s

aporaon who does sacrote his blood type, This testimny ..

direotly frcm the Stata`s own expert witness. In faet the testimony frcm the

Stata itness ssaa that the saliva on the victim must have can €aon

another peescm ('I'.g. 250). ISurthermore evw though the rnes3ir.al e. mi:ner

testified he was unable to obtain a semen : la €rcm tio '€ody of the victim,

one was ave.ntually ohta3ned €ran the ,rict3.rn°a nightgown. This sonen was tested

for D'tlA and the T1MA did not inateh the appellant at all.

The appollant had 3 wi.tnesses testify that he caaas sa re other than the

the night of the rnwder and rape. That in fact

did not lowe the witnesses home till 4s00 AM.

as in Washington

a$ses have no rea.sm to lie after 18 years to prestmt a mn who

myh something to do with such a terrible crime. The Jury clearly lost

it's raaw and placed to much emphasis on the ptib3.c hairs u+dch did not prove

l+ to murder and are not a d f:

the

.y the p

ly a "saiale match.

At the close of the State's case the State W yet to . a

reAEonable doubt as required by law that the appellant had even any 9ncrfsl vmt

in the crlme. Even in a light m,aet faSrorable to the State, there was only a

may have kriaum the victim not killed or raped her as

those possi"esl5.t3ces were proven not to be possible.

(4)

lusively the

ever was F

day in qr^^tie

sa .

ay in Uash4.r.gtan GoaxrLhcacaê where it ld

plming the

clles^ of 50hat light the evidence is viewed iri it vas r^^^ sufficient to

conviction for either Cwpticity to C^.ûit .. Mu.r(ler or Cmplieity

to +" . it N4arder: The Court ir this egs

4th D3.strkt C<aa^t of Appeals ar4°,

ti^ appe1.1an

jurWi.c t4oa and u

sufficie.-mgr of the ev

I,* the rest of his

tent evs..da 4

P#.e

send a mgt^ to prism for u

When a court of law sustains a cc^r°,,ction wAi%kc is

of the ec^denae it v3.elates the. Appe3.lmt`s rights

and the 4blo Cbnstieutfesci Due r-rocess Clauses.

When the appe3.Iant raises the qu

nust view ckae evidence h.t zxost faro:ratsle to the prosecution and

cl îave. foLaxi the essential el. ts

of ttae ar:^me proven beyo

St. 3d 259 (ci

provided foa re^.=

as mly if vie. e.

9

(5)

he iS.S. 0

ht

nrr9.atiori was against

the Court met mpa.oy a specific 3est. The

^^Vie douiat°'. ^êue v .: s> {1991} 61 Ohio

ly the saw as the test

a R. 29 t4catian to Acquit. This was nok properl±

no light at all it sbould be obviou€z that with no

only dismissing one and the

Id ha

:gr

wtskin^ the ap „ 11oat to t

A pp...llmt

y against the manifest

at the evidence c2airrs, the Ar p.llste Court

in this ^,as^ îad the azide3 bene£it of hav3.tay„ seen the appellant's case. As

° dismussed etme the State¢s evidersrr^,ra cva virtually non-exi

deli^ ratioas it was even further in doLita

verified the

appe3l^.^t°s alibi the night in q

.7ohn Keaton,

he -was

Moc2 that he and the appellant kao

êll.esl preacher" (T.p. 416

wene of the erim, at the t. m It

atlser'". (T.p. 404)

rty with „ , frieods. (T.A. 409

.he night, find

asleep the next morning in the ame el

415). While the S^^te so. t to question his r.. years

:

his propensity for truthfulness was rever broitzght i.ntes question. (T.p. 422,426).

Mr. itemton eewsc1b#.ecd that he and the appellant were in Wash4tigtsars Courthouse on

day in question until 4 AM the next morning.

The a :.llant's next witness testi.fied that the appa23.

3u,

that the a_ liacat

Again on cross-examination the

l.y. (T.p. 438).

The finat witness âlLed by t

witn

story of tt^.a two defe

ck the witnesses : w ry

in Washington Cer.srthause. She further

wit'nesses with slightly less detail.

y In question.

t about 4 Am the next mornitg. (T.p. 4335).

he had

(6)

When taken as a whole, the testimony of all three witnesses tells the same

basic story. The appellant could not have committed or participated in the rape

and killing of Mary Clark due to the fact he was in Washington Courthouse the

night of the crime. The minor discrepancies in the small details of the

witnesses is to be expected after twenty years but the testimony of where the

appellant was is identical in all three witnesses. The State was imable to show

any unreliability in these witnesses.

Viewing the evidence in the light most favorable to the prosecution, no

rational trier of fact could have found. the State proved it's case against the

appellant beyond a reasonable doubt. There was no evidence, except for a pubic

hair possibly belonging to the appellant that placed him at the scene at some

time. Further, there is no timeline on when this hair could have been lost at

the victim's house. The appellant himself offered several possible scenarios for

how this could have happened. (T.p. 338,344). What was shown by uncontroverted

evidence was that the saliva on the victim and the semen on the victim's

nightgown did not belong to the appellant in this case. The State was unable to

bring any evidence showing the presence of the appellant in the home of the

victim the night of the attack. Most importantly to this case the State failed

in it's duty to show any involvement whatsoever of the appellant in any crime

much less a murder. This contention is heightened by the fact the trial court

properly dismissed the nearly identical charge of Complicity to Commit

Aggraveted Murder. The testimony of the appellant's witnesses all clearly shows

that the appellant was out of town on the night of the attack on Mrs. Clark. In

light of the evidence presented, or in this case the lack of it, no rational

trier of facts could find the State had proved the material elements of the

crime alleged and as such this conviction is clearly against the manifest weight

and this Court should accept jurisdiction and properly maintain the standard

required in this State for a conviction of this nature.

(7)

EONCLlJSION

'Ibis appellant respectfully requests this Court accept jurisdiction in this

case as the standard. of evidence used to obtain a conviction has severely eroded

in Pickaway County and most specifically in this case. The Counties need to

solve this 18 year old case is no excuse for obtaining a conviction. with the

evidence or the lack of it as done in this case. A manifest miscarriage of

justice has occurred in this case and this Court can correct it and set an

innocent man free.

Respectfully Submitted;

Jaines J. Hollis

P.O. Box 56 LECI

Lebanon, Ohio 45036

CEIta.T.f'ICATE OF SERVICE

I, James J. Hollis, hereby certify that a true and accurate copy of the

above filing has been sent to opposing counsel, Judy Wolford Pickaway County

Prosecutor, 203 S. Scioto St. Box 910, Circleville Ohio 43113 on this 16th day

of Sept. 2010.

(8)

E1LE0-COLIRi OE A^PE:.LS

IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT

PICKAWAY COUNTY

STATE OF OHIO,

Plaintiff-Appellee, Case No. 09CA9

vs.

JAMES J. HOLLIS, DECISION AND JUDGMENTENTRY

Defendant-Appellant.

APPEARANCES:

Benjamin J. Partee, Chillicothe, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, Circleville, Ohio, for

Appellee.

McFarland, P.J.:

{¶1} This is an appeal from a Pickaway County jury verdict finding

Appellant guilty of complicity to murder, an unspecified felony, in violation

of R.C. 2923.03 and 2903.02(A). On appeal, Appellant raises two

assignments of error, contending that (1) the trial court erred in denying his

Criminal Rule 29 motion for acquittal as the state failed to present sufficient

evidence to support a conviction for complicity to murder; and (2) that his

conviction was against the manifest weight of the evidence. Because we

conclude that Appellant's conviction was supported by sufficient evidence,

f

Pickaway App. No. 09CA9 2

we cannot conclude that the trial court erred in denying Appellant's Crim.R.

29 motion for acquittal as to the charge of complicity to murder. As such,

we overrule Appellant's first assignment of error. Further, in light of our

conclusion that Appellant's conviction was supported by competent, credible

evidence, we overrule Appellant's second assigmnent of error. Accordingly,

the judgment of the trial court is affirmed.

FACTS

{12} The victim, an 83 year-old woman named Mary E. Cook, lived at

213 W. Corwin St. in Circleville, Ohio. She had an arrangement with her

neighbor whereby she would pin her drapes closed each night and then

unpin them each morning, to signal that she was okay. When her neighbor

arrived home in the late aftemoon on July 21, 1990, he noticed that Mary's

drapes were still closed and he called the police. The Circleville police

arrived soon after to conduct a well-being check. Upon arriving, the

responding officers found the doors to Mary's house locked, no signs of

forced entry, and an open window with an overtumed bucket placed under it

in the back of the house.' With one officer hoisting the other officer through

the window, entry was gained into the house where Mary was found dead in

her bed. Her body was nude and blood-soaked linens were found wrapped

1 The record indicates that this was not unusual as Mary normally left the window open in order for cats togo in and out of the house.


around her head. Her house appeared to have been ransacked. All of the

bed linens were removed, packaged and sent to BCI for analysis, which

identified the presence of pubic hairs that did not belong to the victim. Also,

it was determined that saliva located on bite marks left on the victim

belonged to someone other than the victim.

{13} Although several individuals, including Appellant, were

questioned as part of the police investigation surrounding Mary's murder, no

charges were brought. Appellant, when questioned, offered an alibi,

claiming to have been with friends at a party in Washington Court House at

the time of the victim's murder. Two years later, when questioned again

after committing other various crimes, Appellant voluntarily submitted pubic

hair and saliva standards. Test results based upon these standards indicated

that Appellant was not a match to the evidence recovered from the crime

scene and as such, he was removed from the suspect list for the murder of

Mary Cook.

{¶4} It was not until several years later, sometime in late 2005 or early

2006, once DNA analysis had become available, that some of the evidence

gathered at the crime scene, specifically the pubic hairs, were resubmitted

for testing. In July of 2007, the Circleville police department was notified

that a match had been identified, linking Appellant's DNA to the crime.


Specifically, the testing indicated that pubic hairs found on the bedding

wrapped around the victim's head which had been recovered from the crime

scene were a low level match to Appellant's DNA profile.2 Based upon this,

Appellant was arrested.

{¶5} At this point, all of the evidence gathered on the day of the crime

was resubmitted to BCI for retesting. During this process, additional pubic

hairs were identified in the bedding that was wrapped around the victim's

head. This additional testing indicated there was only a 1 in

28,340,000,000,000 chance that the newly identified pubic hairs did not

belong to Appellant.3 Additional DNA evidence in the form of semen and

saliva were discovered at this time also. Testing on these samples did not

match Appellant, and instead indicated that another individual was also

present at the scene of the crime.

{¶6} On June 6, 2008, Appellant was indicted for complicity to

aggravated murder, an unspecified felony, in violation of R.C. 2923.03 and

2903.01(B), and complicity to murder, an unspecified felony, in violation of

R.C. 2923.03 and 2903.02(A). Appellant pled not guilty to the charges and

the matter proceeded to a jury trial.

2 This initial testing indicated there was a 1 in 682 chance that the recovered pubic hairs did not belong to

Appellant.3 Although Appellant challenged the collection, handling and aualysis of this DA'A evidence at the trial ofthis matter, he does not raise such challenges on appeal and instead argues alternative theories as to how it

could have legitimately gotten there.


{¶7} At trial, the State presented multiple witnesses, including Officer

Tom Royster, Sergeant Donald Barton, Dr. Michael Geron, Dr. Patrick

Fardal, Detective Kevin Clark, Michelle Yezzo and Mark Losko. Officer

Royster testified to being contacted to conduct a well-being check on Mary

Cook on July 21, 1990, pursuant to a call from Mary's neighbor. He

testified that upon arriving at the house, he found newspapers from the last

two days on Mary's front porch, and he also found an open window in the

rear with an overturned bucket beneath it. He explained that he hoisted

another officer through the window in order to enter the house. Upon

entering the house the officers found Mary Cook's body in her bedroom.

{18} Sergeant Barton testified to being dispatched to Mary Cook's

home. He testified that when he arrived Officer Royster was present, as well

as a Lieutenant Kinney, and that Coroner Geron, assistant prosecutor Gene

Long and BCI arrived while he was there. He testified that the condition of

Mary's house indicated signs of struggle. He testified that the bed spread,

mattress cover, pink fitted bed sheet, nightgown and pillow case that were

wrapped around the victim's head were removed and placed into a large

plastic bag to be held as evidence, and were sent to BCI for testing.

Sergeant Barton testified a second time at trial, explaining that as part of the

murder investigation, Appellant was questioned approximately three days


after the murder because his name had been provided as someone who had

done yard work for Mary. He stated that Appellant provided an alibi during

the interview, which was verified, and that as a result they focused on other

suspects.

{19} Pickaway County Coroner Michael Geron, M.D. also testified.

He testified that the victim was found dead, nude and "spread eagled" in the

bed, her head wrapped in blood-soaked clothing. He testified that the victim

appeared to have suffered multiple blows to her head by a blunt object and

also stated that the victim had bite marks on her right breast and lower right

leg. He testified that the exact time of death was unknown, but that in his

opinion she had been dead at least 12 to 14 hours.

{¶10} Dr. Patrick Fardal, retired chief forensic pathologist for

Franklin County who performed the autopsy on the victim, also testified at

trial, He testified that the victim had sustained traumatic injuries from a

foreign object to her head, face and eye had sustained a broken neck. He

also testified that her autopsy indicated that she has sustained injuries in her

vaginal and anal areas from apparent insertion of a foreign object. Dr.

Fardal testified that swabs were taken to test for saliva and semen. He

testified that the victim's cause of death was a fracture of her sixth cervical

vertebra.


{¶11} Detective Kevin Clark testified that he spent days after the

victim's murder canvassing the neighborhood to develop a list of potential

suspects, compiling names of over forty individuals who were questioned.

He explained that after two years, Appellant's name kept coming up and that

in 1992 Appellant was brought back in for questioning. It was during this

round of questioning that Appellant voluntarily submitted saliva and pubic

hair standards, which were sent to BCI. The form submitted to BCI along

with the standards indicated that Appellant was a black male, rather than

accurately stating he was a biracial male. Based upon the results of this

submission, Appellant was ruled out as a suspect.

{¶12} Detective Clark further testified that a decision was made in

2006 to resubmit the hairs that had been recovered from the crime scene for

additional testing, due to the availability of new DNA test'_ng methods. At

that point, an initial, although low-level, match was made with Appellant,

indicating that the hairs submitted had a 1 in 682 chance of not belonging to

Appellant. Detective Clark explained that Appellant was arrested based

upon the information and that Appellant was again intervii;wed. The record

reflects that a tape recording of Appellant's interview was played for the

jury. In the recording, Appellant acknowledges having known Mary Cook

and that he performed various odd jobs for her. He stated that he had been

Pickaway App. No. 09CA9 g

in her house on several occasions prior to her death and had used her

bathroom. As such, he offered some theories as to how hi.; pubic hair may

have legitimately gotten into her house and once again claimed to have been

at a party in Washington Court House on the night of the victim's murder.

{113} Additional testing was ordered after this interview.

Specifically, all of the materials that were wrapped around the victim' head

were resubmitted to BCI. Michelle Yezzo, retired forensic scientist from

BCT also testified on behalf of the State at trial, explaining her role in testing

the samples submitted right after the crime, prior to the availability of DNA

testing. She testified that she initially determined, based upon the

information provided to her which stated that Appellant was a black male,

that the hairs recovered from the crime scene were not his., as they were

Caucasian hair. She explained that had she known that Appellant was

biracial, she would not have excluded him at that time.

{¶14} Finally, Mark Losko, a DNA forensic scienti>t at BCI, testified

for the State. He explained his role in re-testing the hairs :•ecovered from the

crime scene, once the evidence was resubmitted to BCI. lie testified that his

initial tests indicated there was a 1 in 682 chance that the hairs recovered did

not belong to Appellant. After obtaining these initial results, all of the items

that had been wrapped around the victim's head on the night of her murder

Pickaway App. No. 09CA9

were resubmitted to BCI for additional testing. Mark Los{co testified that in

examining these items he found additional pubic hairs, as well as semen.

Losko testified that DNA comparison performed on the hairs indicated only

a 1 in 28,340,000,000,000 chance that they did not belong to Appellant,

explaining that such a match is a`°very rare profile." However, as with the

saliva evidence, the semen did not match Appellant's DNA profile.

{¶15} After the completion of the State's case, Appellant moved for

acquittal pursuant to Crim. R. 29. The trial court sustaine(I the motion as to

the complicity to aggravated murder count, but allowed the case to proceed

as to the complicity to murder count, after which Appellant presented three

alibi witnesses, including John Keaton, Timothy Buell and Lovie Marie

Buell.

{¶16} Each of Appellant's alibi witnesses confirmed that Appellant

was at a party in Washington Court House on the night of the victim's

murder. John Keaton testified that he, Appellant and a few others left

Circleville at approximately 5:00 p.m. on the evening of July 20, 1990, and

went to a party at Timothy Buell's house in Washington C'ourt House. He

testified that they stayed there until approximately 3:00 in the morning, at

which point they left and returned to Circleville. Keaton testified that the

group returned to his house, where Appellant "crashed" in a chair and was

9


still there sleeping when Keaton later awoke. He also adrriitted on cross

examination that he drank a lot that evening and smoked niarijuana. Tim

Buell and his wife, Lovie Marie Buell, essentiallyconfirmed Appellant's

alibi with their testimony, although in less detail.

{¶17} After hearing the evidence, the jury returned a verdict, finding

Appellant guilty of complicity to murder. The trial court sentenced

Appellant to an indefinite term of imprisonment of fifteen years to life. It is

from this conviction that Appellant now brings his timely appeal, assigning

the following errors for our review.

ASSIGNMENTS OF ERROR

"I. THE TRIAL COURT ERRED IN DENYING APPELLANT'SCRIMINAL RULE 29 MOTION TO ACQUIT AS THE STATEFAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT ACONVICTION FOR COMPLICITY TO MUR[DEItI.

Il. APPELLANT'S CONVICTION WAS AGAINST THE MANIFESTWEIGHT OF THE EVIDENCE."

ASSIGNMENT OF ERROR I

{¶18} In his first assignment of error, Appellant coritends that the trial

court erred in denying his Crim.R. 29 motion for acquittal, arguing that the

State failed to produce sufficient evidence to support a conviction for

complicity to murder.

Pickaway App. No. 09CA9 I 1

{¶19} The standard of review for a Crim.R. 29(A) niotion is generally

the same as a challenge to the sufficiency of the evidence. See State v.

Hairston, Scioto App. No. 06CA3081, 2007-Ohio-3880, at ¶ 16; State v.

Brooker, Washington App. No. 06CA19, 2007-Ohio-588, at ¶ 8. Appellate

courts must determine whether the evidence adduced at trial, if believed,

supports a finding of guilt beyond a reasonable doubt. See State v.

Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.B.2d 541;

State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.

{120} In other words, when reviewing a case to determine if the

record contains sufficient evidence to support a criminal conviction, we must

"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." State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-

502, at ¶ 33, quoting State v. Jenks at paragraph two of the syllabus. See,

also, Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781.

{¶21} The sufficiency of the evidence test "raises a question of law

and does not allow us to weigh the evidence." Smith at 13 4, citing State v.

Pickaway App. No. 09CA9

Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. Instead, the

12

sufficiency of the evidence test "`gives full play to the responsibility of the

trier of fact [to fairly] resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate

facts .' " Smith at ¶ 34, quoting Jackson at 319. This court will "reserve the

issues of the weight given to the evidence and the credibility of witnesses for

the trier of fact." Smith at ¶ 34, citing State v. Thomas (1982), 70 Ohio St.2d

79, 79-80, 434 N.E.2d 1356; State v. DeHass (1967), 10 Ohio St.2d 230, 227

N.E.2d 212, paragraph one of the syllabus.

{¶22} Appellant was convicted of complicity to murder, in violation

of R.C. 2923.03 and 2903.02(A). The version of R.C. 2903.02 that was in

effect at the time of the victim's murder provided in section (A) that "[n]o

person shall purposely cause the death of another." R.C. 2923.03, forbidding

complicity, states that "[n]o person, acting with the kind o f culpability

required for the commission of an offense, shall do any of the following: **

* (2) Aid or abet another in committing the offense; ***." Thus, in order to

support a conviction for complicity to murder by aiding and abetting, it must

be shown that the defendant "supported, assisted, encouraged, cooperated

with, advised, or incited the principal in the commission of the crime, and

that the defendant shared the criminal intent of the principal." State v.


Johnson (2001), 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796,

syllabus. The defendant's "intent may be inferred from the circumstances

surrounding the crime." Id.

{123} Appellant argues that the State's only evidence consisted of a

few of his pubic hairs found at the crime scene and that thq; presence of a

second person's semen and saliva at the crime scene indicated that another

individual actually raped and murdered the victim. Further, while Appellant

concedes that his pubic hair was found in the victim's bedding, he argues

that no evidence was presented placing him at the scene oi'the crime on the

day in question, offering instead alternative theories as to l-iow his pubic

hairs might have been lost in the victim's house.4

{124} Despite the arguments advanced by Appellant, we find

sufficient evidence to support Appellant's conviction for complicity to

murder. The State argues that because Appellant's pubic hairs, not arm,

head or beard hair, were found in the bedding that was wrapped around the

victim's head, that Appellant's presence and involvement in the crime were

established. The State acknowledges the presence of DNA of another

individual and argues that although it was unable to establish which

perpetrator performed which act against the victim, it was able to show that

^ As previously noted, Appellant was familiar with the victim in that he had occasionally perfonned odd

jobs for her, As such, he claimed that he had been in her house and had used her bathroom on previous

occasions.


two people were present at the scene of the crime. The jui y reasonably

inferred, no doubt based upon the DNA evidence, that Appellant was one of

the two individuals.

{125} On appeal, the State focuses its argument on :he fact that the

specific DNA of Appellant's that was found at the crime scene was in the

form of pubic hair, as opposed to any other type of hair. At trial, the State

emphasized that the pubic hair was found in the victim's bedding, which was

found wrapped around her head, as opposed to being fouiid in bathroom,

where Appellant claimed he had been on prior visits to the victim's house.

Further, at trial the State also placed much emphasis on the fact that an

overturned bucket was found underneath an open window to the victim's

house, which was the determined point of entry. The StaG; demonstrated at

trial that even with the bucket placed under the window, erntry through the

window required one individual to hoist the other individual up and through

the window.5 The State argued, and the jury apparently agreed, that this

evidence indicated that two individuals, one of which was Appellant,

cooperated together in entering the victim's residence, anco ultimately

murdering her.

5 This was demonstrated through the testimony of the officers that initially responded to the victim's homefor what began as a well-being check.


{¶26} As such, after reviewing the foregoing evidence in a light most

favorable to the State, we believe that any rational trier of fact could have

found the essential elements of complicity to murder proven beyond a

reasonable doubt. Thus, we find sufficient evidence to support Appellant's

conviction and, as a result, conclude that the trial court did not err in denying

Appellant's Crim.R. 29 motion for acquittal. Accordingly, we overrule

Appellant's first assignment of error.

ASSIGNMENT OF ERROR 11

{127} In his second assignment of error, Appellant (;ontends that his

conviction is against the manifest weight of the evidence.

{¶28} "The legal concepts of sufficiency of the evidence and weight

of the evidence are both quantitatively and qualitatively different." State v.

Thompkins at 386. Sufficiency is a test of the adequacy of the evidence,

while "[w]eight of the evidence concerns `the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other[.]' " State v. Sudderth, Lawrence App. No.

07CA38, 2008-Ohio-5115, at ¶ 27, quoting Thompkins at 387.

{¶29} "Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is muah broader than


that for sufficiency of the evidence." Smith at ¶ 41. When determining

whether a criminal conviction is against the manifest weight of the evidence,

we "will not reverse a conviction where there is substantial evidence upon

which the [trier of fact] could reasonably conclude that all the elements of an

offense have been proven beyond a reasonable doubt." State v. Eskridge

(1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus.

See, also, Smith at ¶ 41. We "must review the entire recorcl, weigh the

evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether, in resolving conflicts in the evidence, 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 granted." Smith

at ¶ 41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 659

N.E.2d 814; State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. However, "[o]n the trial of a case, *** the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the

facts." State v. DeHass at paragraph one of the syllabus.

{¶30} In support of this assignment of error, Appellant reminds us that

he presented three alibi witnesses, all of which told the saine basic story. He

also challenges the jury's determination of guilt, which he claims was based

solely upon the presence of his pubic hair at the crime sce-ie. Appellant


argues that he presented several different scenarios as to huw his pubic hair

may have been lost in the victim's home. He also argues that while the State

proved that another person was present at the scene of the crime, by virtue of

the presence of another person's semen and saliva on the victim's person

and bedding, that it failed to prove that Appellant was present on the night of

the crime. Thus, Appellant essentially argues that no rational trier of fact

could have found that the State proved all of the essential elements of the

crime.

{¶31} Despite these arguments, we find that Appellant's coriviction is

not against the manifest weight of the evidence. In making this finding, we

considered much of the same evidence that we discussed in our resolution of

Appellant's sufficiency of the evidence challenge. Most importantly, the

DNA evidence links Appellant to the crime. Further, the additional DNA

evidence which indicated the presence of another individual at the scene of

the crime, as well as the testimony indicating that two people were necessary

in order to gain access to the victim's residence through the open window,

allowed the jury to infer that Appellant, at the very least, assisted and/or

cooperated with another individual to enter the victim's home and

participate in her murder.


{1[32} In light of this evidence, we cannot conclude that the jury lost

its way and created a manifest miscarriage ofjustice by finding Appellant

guilty of complicity to murder. We acknowledge that Appellant denied any

involvement in the commission of the crime, presented alternative theories

as to how his DNA could have gotten into the victim's residence, and

offered three alibi witnesses. However, it is obvious that the jury did not

find those theories or evidence to be credible, but rather relied on the

evidence presented by the State, which is well within its province as the trier

of fact. As such, we overrule Appellant's second assignment of error.

Accordingly, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED.

Pickaway App. No. 09CA9 19FILFU-COURT OFAPPEALS

JUDGMENT ENTRYIt is ordered that the JUDGMENT BE AFFIRMED and that the

Appellee recover of Appellant costs herein taxed. `^'_t)l.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directiiigthe Pickaway County Common Pleas Court to carry this judgment intoexecution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASEUPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIALCOURT OR THIS COURT, it is temporarily continued for a period not toexceed sixty days upon the bail previously posted. The puLpose of acontinued stay is to allow Appellant to file with the Supreine Court of Ohio

an application for a stay during the pendency of proceedings in that court. Ifa stay is continued by this entry, it will terminate at the earlier of theexpiration of the sixty day period, or the failure of the Appellant to file anotice of appeal with the Supreme Court of Ohio in the forty-five day appealperiod pursuant to Rule II, Sec. 2 of the Rules of Practice of the SupremeCourt of Ohio. Additionally, if the Supreme Court of Ohio dismisses theappeal prior to expiration of sixty days, the stay will terminate as of the dateof such dismissal.

A certified copy of this entry shall constitute the mandate pursuant toRule 27 of the Rules of Appellate Procedure.Exceptions.

Abele, J. and Kline, J.: Concur in Judgment and Opinion.

For the Court,

BY:.eVi :IA`^^^^

, 32

Matthew W. McFarlandPresiding Judge ^^

c^v rl ?^ S^-NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a fmaljudgment entry and the time period for further appeal commences fromthe date of filing with the clerk.

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