Appeals Court affirms conviction of Highland County jury

The Fourth District Court of Appeals has upheld the conviction of a Highland County man on charges of breaking and entering and theft, in regard to a break-in at the Ole Depot Carry-Out and Tavern in April 2009.

Justin Hill, represented by attorney Susan Zurface Daniels, appealed the conviction from a jury trial in Highland County Common Pleas Court. 

The state was represented by the Highland County Prosecutor's Office. 

According to a judgment entry from the court of appeals posted June 8, Hill filed three assignments of error in his appeal, including: 

"The trial court erred in overruling the defendant's motion for acquittal on the grounds that when viewed in a light most favorable to the prosecution, the state had failed at the close of its evidence to meet its burden on essential elements of each charge;" "The verdicts finding defendant guilty to breaking in entering ... and theft ... were against the manifest weight of the evidence;" and "The verdicts finding defendant guilty of forgery in violation of breaking and entering ... and of theft ... were not supported by sufficient evidence."

According to the judgment, on April 29, 2009, someone gained entry to the Ole Depot and "the intruder stole cash, several cartons of cigarettes and lottery tickets. A surveillance camera captured the event. Later that day, Bo Burns (an employee) phoned his cousin, Amy Ames, and asked her to view the tape to identify the perpetrator. Ames identified appellant as the individual on the tape. Several law enforcement officers then visited Latisha Price’s apartment, where appellant had spent the night, and after Price gave the authorities permission to search her residence, they found cash, cigarettes and lottery tickets. On June 2, 2009, (a) Highland County grand jury returned an indictment charging appellant with the theft and breaking and entering. Appellant requested and received a jury to hear the matter. At the conclusion of the State’s case, appellant moved for a judgment of acquittal on grounds that the prosecution had not carried its burden of proof as to the perpetrator's identity. The trial court denied appellant's motion, however. After hearing the evidence and counsels' arguments, the jury returned guilty verdicts on both counts. The trial court sentenced appellant to serve eleven months on each count, with the sentences to be served consecutively for a total of 22 months imprisonment."

The court wrote that Hill's arguments on the assignments of error are "premised on the issue of the perpetrator's identification. (Hill) argues that the evidence is insufficient to establish that he was, in fact, the perpetrator of the break-in. We disagree with appellant."

According to the judgment there was testimony as to the identity of the person on the surveillance tape, and that clothing matching that of the individual on the tape matched clothing in Price's apartment. 

"After our review of the record, we readily conclude that the evidence is sufficient to defeat a motion for judgment of acquittal and support the jury verdict," according to the court, and the first and third assignments of error were overruled.

The court also disagreed with the third assignment of error. 

"Our review of the record, including and the evidence that we discussed with respect to appellant's first and third assignments of error, reveals that in this matter the jury did not lose its way. We believe that the record contains substantial evidence upon which the trier of fact could reasonably conclude that the elements of the offense have been proven beyond a reasonable doubt. To the extent that appellant attacks the verdicts as based on circumstantial evidence, we note that this is only partially true. Ames’s identification of the surveillance video constitutes direct, rather than circumstantial, evidence. Although appellant argues that her testimony is an “obvious misidentification,” we find no merit to that argument. Again, any problems with the identification involves evidence weight and credibility that the trier of fact must consider and decide. Similarly, we are not persuaded that any arguable discrepancies in Ames' identification resulted in a 'manifest miscarriage of justice.' Moreover, as appellant accurately notes, criminal convictions may in fact be based on circumstantial evidence alone."

The court of appeals affirmed the trial court's judgment, stating, "Having reviewed all the errors assigned by appellant and argued in his brief, and having found merit in none," it was ordered that the state recover from Hill the costs of the appeal.