Friday, June 26, 2015

The Thief, the iPhone and the Phone Tracking Program

After a jury convicted Tracy T. Rowe of one count of burglary, in violation of Ohio Revised Code § 2911.12, and the judge sentenced him to “eight years in prison for the conviction”, he appealed.  State v. Rowe, 2015 WL 3757301 (Ohio Court of Appeals – Franklin County 2015). 
The Court of Appeals begins its opinion by explaining that Rowe was indicted for burglary on April 30, 2015, after which the case was "`tried to a jury in November 2014."  State v. Rowe, supra. 
The court goes on to outline the evidence that was presented at Rowe's trial: 
On April 21, 2014, Cassondra Denniston, returned to her residence at 385 East 16th Avenue, Columbus, Ohio, after attending classes at The Ohio State University (`OSU’). Denniston arrived at the house shortly before 4:00 p.m., and entered through the back door near the kitchen.’

`She put down her phone and other items, and then she noticed a stranger standing in the living room of the house, which she shares with nine roommates. Suspecting that the man was not supposed to be there, Denniston began to say something. But when the man started to `shuffle’ his feet, Denniston knew he was an intruder. . . . The man ran to the kitchen, picked up Denniston's iPhone, and exited the house. The man ran through an alley toward the OSU campus.’      
State v. Rowe, supra.
The court then explains that Denniston
immediately left the house, got in her car, and went to a café a few blocks away. From the café, she called the police and opened a phone tracking program on her laptop computer. Such a program enables the owner of a GPS equipped phone to identify or track the location of the phone. Denniston returned to her house where she met Officer Jenna Arthur of the Columbus Division of Police. Denniston provided a description of the intruder to Officer Arthur. Denniston described the intruder as an African–American male, wearing a black `hoodie,’ a hat turned backwards, yellow tinted sunglasses, `cardigan’ shorts, and sneakers. . . .

Denniston provided the laptop, with its phone tracking program running, to Officer Arthur. Arthur relayed information out by radio relating to the description provided by Denniston and the location of the phone. When Arthur began tracking the phone on Denniston's laptop, the phone was at 13th Avenue and High Street. Arthur observed that the phone was moving south on High Street.
State v. Rowe, supra.
The opinion then explains how the officers found, and arrested, Rowe:
Officers Steven Baird and Shannon Dearwester of the Columbus Division of Police were dispatched to attempt to locate Denniston's phone. Baird determined that each update regarding the phone's location was at a Central Ohio Transit Authority bus stop, likely indicating the phone was on a bus. Based on the tracking information provided by Arthur, Officers Baird and Dearwester stopped a bus traveling south on High Street. Baird testified that the bus had already been stopped and boarded by two other Columbus police officers approximately four or five minutes before Baird and Dearwester stopped and boarded the bus.

After Baird and Dearwester boarded the bus, they located a man in the back of the bus generally matching the description provided by Denniston. The officers asked the man, who was later identified as Rowe, to exit the bus with them. When Rowe was removed from the bus, he was not wearing a dark `hoodie’ as reported by Denniston. Rowe was carrying a backpack, which the police searched. The officers found several phone charging cords, among other items such as clothes and headphones.

According to Officer Baird's testimony, once the officers began removing Rowe from the bus, they noticed a phone under the seat where Rowe had been sitting. The phone was being `pinged’ by another source, that is, it was `vibrat[ing] and flash[ing] and kind of mak[ing] a funny noise.’ . . . Dearwester testified that he did not locate the phone until the officers and Rowe exited the bus. Dearwester further testified he again boarded the bus to look for the phone and found it under the seat where Rowe had been sitting. The phone was emitting a sound but it was not ringing.

Daniel Jensen was on the bus when the police removed Rowe. Jensen was taking the bus downtown to attend a Columbus Blue Jackets game. According to Jensen's testimony, at a stop just south of the OSU campus, a police officer boarded the bus, walked up and down the aisle, and then exited the bus. When this occurred, Rowe was on the bus, sitting near Jensen. After the first police officer boarded the bus, Rowe was `ruffling around with the [book]bag’ he was carrying. . . . At the next bus stop, two police officers boarded the front of the bus and two boarded at the rear of the bus. At that time, the police removed Rowe from the bus, and the bus continued southbound.

At the next stop, another police officer boarded the bus and asked Jensen where Rowe had been sitting. Jensen informed the police officer, who then searched under the seats in that area. The police officer found a phone under the seat adjacent to where Rowe had been sitting. During Jensen's time on the bus, he did not see anyone else sit in the area where Rowe had been sitting. Additionally, Jensen did not see Rowe in possession of the phone that was discovered under the seat.
State v. Rowe, supra.
The next thing that happened was that after the officers removed Rowe from
the bus, Arthur took Denniston to the apprehension location to make an identification. At that location, Denniston identified Rowe as the man who had been in her house. Denniston was `very confident’ of her identification. . . . Once Denniston made the identification, Rowe was handcuffed and placed in a police vehicle. At trial, Denniston again identified Rowe as the man who had been in her house.
State v. Rowe, supra.
At some point later, Denniston
confirmed with her roommates that none of them had given anyone permission to be at the house on the afternoon of April 21, 2014.
Additionally, Denniston learned that one of her roommates was missing a phone charger after the burglary, which the police recovered and returned to Denniston's roommate. Lastly, a couple days after the burglary, one of Denniston's roommates discovered that a basement window to the house was shattered.
State v. Rowe, supra.
On appeal, Rowe argued that “his conviction for burglary was not supported by sufficient evidence and was against the manifest weight of the evidence.”  State v. Rowe, supra.
In a criminal prosecution, of course, the prosecution has the burden to prove all the elements of the crime charged beyond a reasonable doubt.  The Court of Appeals began its analysis of his argument with the issue of whether the evidence presented at trial was sufficient to prove Rowe’s guilty beyond a reasonable doubt, explaining that whether
there is legally sufficient evidence to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380 (Ohio Supreme Court 1997). Sufficiency is a test of adequacy. State v. Thompkins, supra. The relevant inquiry for an appellate court is whether the evidence presented, when viewed in a light most favorable to the state, would allow any rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt. State v. Mahone, 2014 WL 1350969 (Ohio Court of Appeals  2014). `[I]n a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime.’ State v. Bankston, 2009–Ohio–754 (Ohio Court of Appeals 2009).
State v. Rowe, supra.
It went on to explain that in order to prove that Rowe
committed burglary as charged in the indictment, the state was required to show that Rowe, by force, stealth, or deception, trespassed in an occupied structure `that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense.’ Ohio Revised Code § 2911.12(A)(2).

Viewed in a light most favorable to the state, the evidence at trial demonstrated Rowe committed burglary, as charged in the indictment. When Denniston returned home from classes at OSU, she encountered Rowe standing in her living room. Denniston shares her house with nine roommates, but none of them authorized Rowe to be in the house. When Rowe saw Denniston, he quickly exited the house stealing Denniston's phone on his way out. Rowe then fled on foot to the OSU campus and boarded a bus travelling south on High Street. Later, it was discovered that a basement window to Denniston's house had been smashed, providing Rowe a means of entrance into the house. In view of the foregoing evidence, the state established the essential elements of the crime of burglary as charged in the indictment.
State v. Rowe, supra.
The Court of Appeals then took up the other issue Rowe raised on appeal – whether his conviction was “against the manifest weight of the evidence.”  State v. Rowe, supra. It began its analysis of the argument by noting that when a court is presented with a
manifest weight argument, an appellate court engages in a limited weighing of the evidence to determine whether sufficient competent, credible evidence supports the jury's verdict. State v. Salinas, 2010–Ohio–4738 (Ohio Court of Appeals 2010). . . . When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “`thirteenth juror’” and disagrees with the factfinder's resolution of the conflicting testimony.’ State v. Thompkins, supra, quoting Tibbs v. Florida, 457 U.S. 31 (1982). Determinations of credibility and weight of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (Ohio Supreme Court 1967). . . .

The jury, or the trial court in a bench trial, “`is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’”   State v. Cattledge, 2010–Ohio–4953 (Ohio Court of Appeals 2010), quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (Ohio Supreme Court 1984). Thus, the jury may take note of the inconsistencies and resolve them accordingly, `believ[ing] all, part, or none of a witness's testimony.’ State v. Raver, 2003–Ohio–958 (Ohio Court of Appeals 2003).

An appellate court considering a manifest weight challenge `may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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 ordered.’ State v. Harris, 2014–Ohio–2501 (Ohio Court of Appeals 2014). . . . Appellate courts should reverse a conviction as being against the manifest weight of the evidence in only the most `”exceptional case in which the evidence weighs heavily against the conviction.”’ State v. Thompkins, supra, quoting State v. Martin, 20 Ohio App.3d 172 (Ohio Court of Appeals1983).
State v. Rowe, supra.
The court then began the process of applying these standards to Rowe’s arguments on appeal, noting, first, that he
challenges Denniston's identification of him because she only saw the intruder in her house for a few seconds. Rowe also argues the evidence was conflicting regarding when he boarded the bus and the circumstances surrounding the recovery of Denniston's phone. These arguments are unavailing.

As the trier of fact, the jury was charged with evaluating the strength of Denniston's identification of Rowe as the person who stole her phone, based on such factors as her capacity and opportunity to observe the intruder and the interval of time between the event and the identification. To reverse on manifest weight grounds on the issue of Denniston's identification of Rowe, we would need to find that a reasonable juror could not find Denniston's testimony credible. See State v. Brown, 2002–Ohio–5345 (Ohio Court of Appeals 2002) (`it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact which accepted the testimony of such witness unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible’).

The evidence did not, however, discredit Denniston's identification of Rowe. Denniston observed Rowe in her living room, at a relatively close distance, and she provided a confident in-person identification of him shortly after the burglary. Additionally, Denniston's identification of Rowe was strongly corroborated by the evidence indicating the discovery of Denniston's phone under the seat of a bus on which Rowe had boarded shortly after the burglary. Thus, it was reasonable for the jury to believe Denniston.
State v. Rowe, supra.
And, finally, the Court of Appeals noted that Rowe
correctly observes the testimony at trial was inconsistent as to the circumstances relating to the discovery of the phone on the bus. The testimony of the officers indicated the phone was discovered almost immediately after Rowe was removed from the bus. But Jensen's testimony indicated after Rowe was removed from the bus, the bus continued southbound to the next stop, and the police discovered the phone at that stop.

Rowe argues the evidence regarding when he boarded the bus was also inconsistent. Rowe cites the evidence indicating an officer boarded the bus, walked up and down the aisle, and then exited without locating Rowe. Rowe argues this evidence is inconsistent with other evidence indicating Rowe's presence on the bus at the time the first officer boarded the bus. These apparent inconsistencies do not, however, demonstrate the conviction was against the manifest weight of the evidence.
State v. Rowe, supra.
The court went on to find that,
[f]irst, regardless of whether Denniston's phone was discovered immediately after Rowe was removed from the bus, or at the next bus stop, undisputed evidence indicated that the police found the phone in close proximity to where Rowe had been sitting on the bus.

Second, the officer or officers who initially boarded the bus did not testify. The jury could have reasonably determined that the police officer or officers who first boarded the bus did not see anyone matching the description of the burglar due to the number of people on the bus and because Rowe's appearance had somewhat changed. Finally, it was within the province of the jury to resolve or discount any inconsistences in the testimony at trial, including the discrepancy regarding the discovery of the phone and why the police did not initially see Rowe on the bus. . . . In sum, Rowe fails to show 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 ordered.

Because Rowe's conviction for burglary was supported by sufficient evidence and was not against the manifest weight of the evidence, his sole assignment of error is overruled.
State v. Rowe, supra.
The Court of Appeals therefore affirmed Rowe’s conviction and sentence.  State v. Rowe, supra.

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