The Akron Legal News

Appeal denied for burglar whose accomplices testified against him

ANNIE YAMSON
Special to the Legal News
Published: December 17, 2014

A panel of three judges in the 9th District Court of Appeals recently affirmed the judgment of the Summit County Court of Common Pleas in a burglary case.

Lamar Pierce appealed his conviction for burglary, arguing that the guilty verdict was not supported by the manifest weight of the evidence.

Case summary states that, on Oct. 25, 2011, a homeowner called the Bath Police Department to report that there were men trying to get into her house.

The men fled when they spotted the homeowner through the window but she was able to provide the police with a description of the getaway vehicle.

Officers located the vehicle shortly thereafter and a chase ensued. The pursuit came to an end when the burglars’ vehicle crashed into a ditch.

It was determined that Pierce was the driver of the vehicle and the Summit County Grand Jury subsequently indicted him on two counts of burglary, two counts of failure to comply with the order or signal of a police officer and one count of driving under suspension.

At his trial, Pierce’s accomplices, Michael Davis and Antonio Jones, testified against him.

He was found guilty of one count of burglary and one count of failure to comply along with the driving under suspension count and was sentenced to a total of eight years in prison.

In his sole assignment of error on direct appeal to the 9th District court, Pierce stated, “The jury clearly lost its way when it found appellant guilty of burglary where the evidence was not credible or reliable and consisted of snitch testimony.”

“Weight of the evidence pertains to the greater amount of credible evidence produced in a trial to support one side over the other side,” wrote Judge Jennifer Hensal on behalf of the appellate panel. “An appellate court should only exercise its power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.”

The reviewing court noted that Pierce was found guilty of burglary under Revised Code Section 2911.12(A)(1), which provides, “No person by force, stealth or deception shall trespass in an occupied structure ... when another person other than an accomplice of the offender is present, with purpose to commit in the structure ... any criminal offense.”

Pierce argued that his burglary conviction should be reversed because there was no physical evidence tying him to the crime and because the testimony of Davis and Jones “cannot be believed.”

He also noted that the homeowner did not testify and her observations were admitted through the second-hand testimony of law enforcement.

At best, Pierce contended that the evidence presented at trial supported a trespassing or attempted burglary conviction.

Davis and Jones each testified they drove with Pierce from Cleveland to Bath in order to commit a burglary.

Davis testified that they wanted to target a home where nobody was present, so when they got to the victim’s home, Pierce knocked on the door.

When no one answered, Davis and Pierce went around the house to the back patio where they spotted the homeowner looking at them through a back window and they ran back to their vehicle.

Jones testified that Pierce and Davis approached the victim’s home while he stayed in the vehicle. He corroborated Davis’ testimony that Pierce knocked in the front door and then headed to the backyard.

About 30 seconds after they disappeared to the back of the home, Pierce and Davis came running back to the vehicle, according to Jones.

Davis and Jones each admitted in the courtroom that the state reduced its charges against them in exchange for their testimony against Pierce.

“In determining whether a conviction is against the manifest weight of the evidence, this court has recognized that issues of credibility are primarily reserved for the trier of fact,” wrote Judge Hensal. “This court will not overturn the trial court’s verdict on a manifest weight of the evidence challenge only because the trier of fact chose to believe certain witness testimony over the testimony of others.”

The appellate panel held that the fact that an accomplice of the defendant received leniency in exchange for his testimony does not necessarily make his testimony incredible.

It also pointed out that the trial court instructed the jury that the testimony of Davis and Jones “should be viewed with grave suspicion and weighed with great caution.”

“We presume that (the jury) followed the court’s instruction,” wrote Judge Hensal.

Following its review of the case, the court of appeals ruled that Pierce’s burglary conviction would stand and it affirmed the judgment of the Summit County court.

Presiding Judge Eve Belfance and Judge Carla Moore joined Judge Hensal to form the majority.

The case is cited State v. Pierce, 2014-Ohio-5258.

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