State v. DepinaState v. Depina
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 8, 2015
APPEARANCES:
For Plaintiff-Appellee:
JOHN D. FERRERO, JR. STARK CO. PROSECUTOR RENEE M. WATSON 110 Central Plaza South - Ste. 510 Canton, OH 44702-1413
For Defendant-Appellant:
MATTHEW PETIT 116 Cleveland Ave. NW - Ste. 808 Canton, OH 44702
Delaney, J.
{¶1} Appellant Dwayne S. DePina appeals from the May 19, 2014 Judgment Entry of conviction and sentence entered in the Stark County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on December 22, 2013 around 12:30 p.m. at the Wal-Mart store at “The Strip” in Jackson Township, Stark County, Ohio.
{¶3} Sporting goods manager Lenny Woods observed appellant walking quickly in the store with a cart full of merchandise. Woods watched appellant take the cart behind the row of 26 registers and started following him. Appellant said, “Don‘t worry, I‘m going to pay” but then proceeded past all the registers and headed for the exit with the loaded cart. Woods grabbed the front of the cart and told appellant he needed to see his receipt. The two “tussled” briefly over the cart and some of the merchandise spilled out. Appellant put his hand in his pocket and said “Come on, man, I‘ve got a gun.” Woods immediately backed off and appellant grabbed a single item out of the cart and walked quickly out of the store with it.
{¶4} Woods and several other Wal-Mart employees and customers walked outside to watch where appellant went and saw him get into a vehicle parked in the crosswalk. Employees wrote down the license plate number of the vehicle as it pulled away. Police later traced the vehicle to Patricia DePina and through her to appellant.
{¶5} Several witnesses overheard the threat. A hotel manager was shopping in the store and observed Woods and appellant fight over the cart from about 20 feet away. She heard appellant say “Come on, man, I‘ve got a gun” and saw Woods back
{¶6} The husband, Woods, and another Wal-Mart manager identified appellant in a photo lineup. These witnesses also identified appellant in the courtroom as the man who robbed the store.
{¶7} Appellant was charged by superseding indictment with one count of robbery pursuant to
{¶8} Appellant now appeals from the judgment entry of his conviction and sentence.
ASSIGNMENTS OF ERROR
{¶10} “I. THE APPELLANT‘S CONVICTION FOR ONE COUNT OF ROBBERY IN VIOLATION OF
{¶11} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S RULE 29 MOTION FOR ACQUITTAL BASED ON A FAILURE TO PROVE VENUE.”
ANALYSIS
I., II.
{¶12} Appellant‘s two assignments of error are related and will be considered together. Appellant argues his conviction upon one count of robbery is against the manifest weight and sufficiency of the evidence. We disagree.
{¶13} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to 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
{¶14} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶15} Appellant was convicted of one count of robbery1 pursuant to
{¶16} Appellant acknowledges several witnesses heard him say he had a gun during the incident, but argues this is insufficient to establish the use or threat of immediate use of force required by the statute. We note appellant is charged pursuant
{¶17} The issue is whether appellant‘s statement that he had a gun, as heard by several witnesses, is a sufficient threat of physical harm pursuant to
{¶18} Appellee directs us to State v. Ellis, which contrasts the two sections of robbery. 10th Dist. Franklin No. 05AP-800, 2006-Ohio-4231, ¶ 5:
R.C. 2911.02(A)(2) requires proof of infliction or attempted infliction or threatened infliction of physical harm.R.C. 2911.02(A)(3) requires use or threatened use of force against another. These are
distinct and separate acts and may be proven by essentially the same evidence but may be offenses of similar import. Appellant made an implied threat of physical harm to Ware when he told her he had a gun, was on drugs and needed the money. Telling a person that you have a gun in connection with a demand for money permits a reasonable inference of a threat of physical harm, which is sufficient for
R.C. 2911.02(A)(2) . (Emphasis added).
{¶19} To establish a violation of
{¶20} In this case, Woods testified appellant told him he had a gun during the tussle over the cart, causing Woods to let go of the cart. The hotel manager, husband, and wife also heard the statement. We find appellant‘s statement, especially coupled with the circumstances of tussling with Woods over a cart filled with unpaid merchandise, “permits a reasonable inference of a threat of physical harm.” Ellis, supra. Appellee thus presented sufficient evidence of this element of simple robbery.
{¶21} We turn next to appellant‘s second assignment of error, in which he argues appellee did not establish the element of venue. At trial, this was the basis of appellant‘s motion for judgment of acquittal pursuant to
{¶22} We have previously held a trial court has broad discretion to determine facts which would establish venue, and venue need not be proven in express terms but may be established by the totality of facts and circumstances. State v. Walker, 5th Dist. Licking No. 01-CA-00091, 2002-Ohio-5101, ¶ 8, citing City of Toledo v. Taberner, 61 Ohio App.3d 791, 573 N.E.2d 1173 (6th Dist.1989).
{¶23} In State v. Barr, the Seventh District Court of Appeals exhaustively identified the myriad ways venue may be established at trial. If the state has demonstrated that the alleged crime occurred in a particular location but failed to provide direct evidence that the location is in the appropriate county,
{¶24} We find appellant‘s conviction upon one count of robbery is supported by sufficient evidence and is not against the manifest weight of the evidence. Appellant‘s two assignments of error are thus overruled.
{¶25} Appellant‘s two assignments of error are overruled and the judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.