COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71619, 71748 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : HOPE DICKERSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 16, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CP-CR-337440 CP-CR-338524 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 4403 St. Clair Avenue BY: JAMES E. VALENTINE, ESQ. Cleveland, Ohio 44103 ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J. Defendant Hope Dickerson appeals from her conviction in case no. 337440 for one count of aggravated burglary and one count of theft. In a consolidated appeal, Dickerson challenges her conviction in case no. 338524 for two counts of aggravated burglary and one count of theft. For the reasons set forth below, we affirm both matters. On April 15, 1996, defendant was indicted in case nos. 337440, 338514 and 338515. Each matter charged defendant with one count of aggravated burglary and one count of theft (less than $300). Case no. 337440, which is relevant to the instant appeal, charged defendant with offenses at the home of Irene McCord on March 12, 1996 and contained a furthermore clause alleging that defendant had been convicted of theft in October 1976. Case no. 338514 charged defendant with offenses at the home of Agnes Prochaska and case no. 338515 charged defendant with offenses at the home of Agnes Case. On May 9, 1996, defendant was indicted in case no. 338524. This matter, which is also the subject of the instant appeal, set forth one count of aggravated burglary, at the home of Ella Mae Hunter on March 5, 1996, one count of theft from Hunter (less than $300), and one count of aggravated burglary at the home of Sarah Parks on March 5, 1996. Defendant pleaded not guilty to all charges and the state moved to consolidate the four matters for trial pursuant to Crim.R. 13. The trial court granted the motion and the consolidated matters proceeded to trial on September 10, 1996. - 3 - The state and the defense stipulated that defendant had been convicted of theft in 1976 as set forth in the furthermore clause of case no. 337440 and also stipulated that a time sheet from a McDonald's restaurant and a letter from a veterinarian were authentic. The state's evidence demonstrated that on March 12, 1996, defendant went to the home of Irene McCord and indicated that she was there to renew her bus pass. Defendant asked Miss McCord for her bus pass and Social Security card. She then asked for a glass of water and asked to use the telephone several times. Defendant told Mrs. McCord that the cost for the renewal was $3.00. Miss McCord paid this sum and defendant prepared a receipt for her. As defendant stepped to the door to leave, she stated that her grandchild had been in the car and that he probably went to the home of a friend. After defendant left, Miss McCord noticed that the receipt which defendant had prepared was gone. Miss McCord became suspicious and telephoned the Regional Transit Authority (hereafter referred to as RTA ) to report the incident. She also reported it to the Cleveland Police Department and eventually identified defendant from police photographs. On March 5, 1996, at approximately 7:00 p.m. or 7:30 p.m., defendant went to the home of Sarah Parks and stated that she was a bus driver with RTA. Miss Parks asked defendant for identification and defendant quickly flashed some form of identification. Miss Parks let her into her apartment and - 4 - defendant asked Parks for her Social Security card. As Parks retrieved the card from a wallet in the pocket of a pair of pants, she exposed money from within the wallet. Defendant asked Miss Parks for tampons and Parks went into the bathroom. Parks felt that there was something suspicious about defendant, however, and she quickly turned around to look at her. Parks observed defendant leaning toward the pants with her hips tilted and arm extended as if to reach for the wallet. The women subsequently returned to the living room and defendant copied Miss Parks' Social Security number and left a number for Parks to call for response transportation for medical appointments.Defendant then asked if there were any other people in the building needing RTA services and Parks mentioned Ella Mae Hunter. Later that night, Parks spoke to Mrs. Hunter, then called the Cleveland police and RTA police. She subsequently identified defendant from police photographs. Also in the evening on March 5, 1996, defendant went to Mrs. Hunter's home. Defendant explained that she was employed by RTA and was there at the request of Miss Parks to provide assistance with transportation problems. Mrs. Hunter had been having difficulty arranging transportation for a medical appointment and let defendant into her apartment. Defendant subsequently asked to see her Social Security card. As Mrs. Hunter began to remove the card from a sleeve in her billfold, defendant said that she could see the numbers from within the billfold. Mrs. Hunter handed her the billfold containing the card, and defendant turned away to - 5 - write at a nearby table. Defendant then asked for a cigarette and left a short while later. After defendant left, Mrs. Hunter realized that five twenties which her son had given her were no longer in the billfold. Mrs. Hunter subsequently spoke with the Cleveland police and identified defendant from police photographs. The state's evidence also indicated that at approximately 3:15 p.m., on March 9, 1996, defendant went to the apartment of Agnes Case. According to Miss Case, defendant came in, observed $2.00 on a table and said that she needed this money for a green card. Defendant then indicated that the card would be ready on the following Monday and asked to use the bathroom before leaving the apartment. Shortly after defendant left her apartment, a woman named Joanne and Cleveland Police Detective Chojnowski arrived and obtained a statement from Miss Case. Agnes Prochaska testified that on February 27, 1996, while she was preparing for a community relations meeting, defendant came to her home, explained that she was a bus driver for RTA, and stated that Martha Wells had left her purse on the bus. Miss Prochaska allowed defendant into her home then called St. Andrews Towers to locate Wells. While Miss Prochaska was on the telephone, defendant asked to use the bathroom. She then asked if there was a side window in the home so that she could look out and check on her grandchild who was in the car. Miss Prochaska told her to go out the side door and have the child come in. Defendant did not comply but instead ran into Miss Prochaska's bedroom yelling the child's name. She exited the room as Miss Prochaska completed her - 6 - telephone call then left after obtaining Wells' address. Later that evening, Miss Prochaska noticed that her purse was missing from her bedroom. Finally, Miss Prochaska testified that the purse contained three two dollar bills of sentimental value, a rosary, her glasses, keys, and credit cards. She reported the incident to the police and later identified defendant from police photographs. The purse was subsequently found near East 71st Street and St. Clair Avenue. The $2.00 bills, rosary, glasses and identification were missing, however. Cleveland Police Detective Joseph Chojnowski of the Financial Crimes Unit investigated the matters and ascertained a pattern which tended to indicate that the suspect had an awareness of RTA procedures and routes. He spoke with RTA officials and eventually designated defendant, a former RTA employee, as a suspect. He then prepared an eight photograph photo array for each of the complaining witnesses and executed a search at the home of defendant's ex-husband and son. Defendant eventually turned herself in to the police on March 20, 1996. She appeared to be under the influence of alcohol at this time. The next morning, she explained that she was employed at McDonald's and could not have committed the offenses at issue. She stated, however, that there were no time cards available as employees checked in and out of the restaurant through the honor system. Defendant elected to present evidence. Defendant demonstrated the McDonald's restaurant where she worked as a cashier until March 20, 1996, did not use time cards to monitor employee work hours. - 7 - Rather, the managers keep a written record which lists employee arrivals and departures. According to these records, defendant worked from 6:00 a.m. until 1:00 p.m. on February 27, 1996. Defendant's mother further established that defendant had been ill in mid-March 1996 and missed two days of work. At this time, defendant did not leave her home. Defendant's mother also established that defendant takes the bus to and from work. Defendant testified that she was ill on March 11, 1996 and March 12, 1996. She also testified that she brought her dog to the veterinarian on March 9, 1996, and remained there until approximately2:00 p.m. She produced a note from the veterinarian which indicated that she had a scheduled appointment at 12:45 p.m. on this date, which would be expected to last from thirty minutes to one hour. Defendant was subsequently acquitted of the charges set forth in case nos. 338514 and 338515 which alleged offenses against Miss Prochaska and Miss Case. Defendant was convicted of the charges set forth in case nos. 337440, which involved Irene McCord, and 338524, which involved Ella Mae Hunter and Sarah Parks. The trial court sentenced defendant in case no. 337440 to eight to twenty-five years imprisonment on count one and a concurrent term of six months on count two. In case no. 338524, the court sentenced defendant to concurrent terms of eight to twenty-five years imprisonment on the aggravated burglary counts and six months on the theft count. The court also ordered the sentence in case no. 337440 to run concurrently with the sentence - 8 - in case no. 338524. Defendant now appeals and assigns two errors for our review. Defendant's first assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. In State v. Thompkins (1997), 78 Ohio St.3d 380, 387, the Supreme Court set forth the role of an appellate court in determining whether a judgment is against the manifest weight of the evidence: When a court of appeals reverses the judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31,] at 42, 102 S.Ct at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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. The discretionary power to grant a new trial should only be granted in the exceptional case in which the evidence weighs heavily against the conviction. ) Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 267, paragraph one of the syllabus. - 9 - Applying the foregoing, we are unable to conclude that the jury lost its way and created a manifest miscarriage of justice in convicting defendant of the instant offenses. Irene McCord credibly, clearly, and certainly established that defendant went to her home, stating that she was there to renew her bus pass. During this time, defendant asked Miss McCord for her bus pass, Social Security card and $3.00, which the jury could have reasonable interpreted as attempts to determine the location of money within the home. Defendant also asked for a glass of water and to use the telephone several times, requests which would divert McCord's attention. Although fingerprint analysis did not yield conclusive evidence of guilt, Miss McCord identified defendant from police photographs and established that defendant was the woman who had come to her house regarding the bus pass. Likewise, Parks credibly and clearly indicated that defendant came to her apartment and stated that she was a driver with RTA. She then asked for Parks' Social Security card which in turn revealed the location of Parks' wallet. Thereafter, defendant asked Parks to get her tampons, which the jury could infer was intended to divert Parks' attention. When Parks returned, she observed defendant bent over the pants from which the wallet was retrieved. Parks identified defendant from police photographs and again in court. Mrs. Hunter testified that defendant came to her apartment in order to provide information regarding response transportation. Defendant asked for her Social Security card, then handled the - 10 - wallet and turned away. Thereafter, one hundred dollars was missing from the wallet. Mrs. Hunter identified defendant from police photographs and also stated in court, Who could forget a pretty face like that[?] (Tr. 79). Defendant's evidence did not effectively negate the state's evidence of guilt for these charges, as it was vague and self- serving and incomplete. Further, while defendant relies upon the fact that fingerprint and handwriting analysis did not establish her guilt, it is clear that these matters were simply inconclusive and therefore neither militate for or against conviction. We therefore conclude that the convictions are not against the manifest weight of the evidence. The first assignment of error is overruled. Defendant's second assignment of error states: THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION TO CONSOLIDATE THE CASES FOR TRIAL. Crim.R. 13 provides for the Trial Together of Indictments or Informations or Complaints and provides in relevant part as follows: The court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information. Thus, two or more indictments may be tried together if the offenses could have been joined in a single indictment. State v. Cotton (July 14, 1994), Cuyahoga App. Nos. 64361, 64378, unreported. - 11 - Crim.R. 8(A) in turn governs the charging of multiple offenses and provides in relevant part as follows: Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged *** are of the same or similar character, or are based on the same act or transaction, or are based on two or more transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. Pursuant to this rule, multiple offenses may be charged in the same instrument if they are of the same or similar character or are separate transactions which are parts of either a common scheme or are part of a course of criminal conduct. State v. Lott (1990), 51 Ohio St.3d 160, 163. Moreover, the law favors joinder as it conserves time and expense, diminishes inconvenience to public authorities and witnesses, promptly brings the accused to trial, and minimizes the possibility of incongruous results in successive trials before different juries. See State v. Cotton, supra; State v. Schaim (1992), 65 Ohio St.3d 51, 58. In evaluating a claim that offenses were erroneously joined, the reviewing court must consider (1) whether the defendant's rights were prejudiced; (2) whether, prior to trial, the defendant presented the trial court with sufficient information to weigh the considerations favoring joinder against the defendant's right to a fair trial; and (3) whether, in light of the information presented to the court, it abused its discretion in refusing to separate the charges for trial. See State v. Czajka (1995), 101 Ohio App.3d 564, 577. Key issues are the complexity of the evidence and - 12 - whether the jury is able to segregate the proof required on each charge. Id.; State v. Lott, supra, 163-164. In this matter, we are unable to conclude that defendant's rights were prejudiced or that the trial court abused its discretion in evaluating the considerations favoring joinder against defendant's right to a fair trial. Defendant at no time objected to the joinder and there is no basis from which we may determine that plain error has occurred. The offenses were of similar character and they occurred within a relatively short time period. The evidence pertaining to the offenses was not confusing or complex, but rather, was simple and direct. Most significantly, the jury acquitted defendant of the charges set forth in case no. 338514 and case no. 338515, clearly demonstrating that it was able to segregate and separately consider the evidence adduced in relation to each individual charge. The second assignment of error is overruled. Affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, C.J. McMONAGLE, J. .