2004 Ohio 3690 | Ohio Ct. App. | 2004
{¶ 2} On August 9, 2002, appellant was indicted by the Lake County Grand Jury on the following five counts: (1) one count of aggravated robbery, in violation of R.C.
{¶ 3} On November 14, 2002, this matter went to trial before a jury. The following facts were disclosed during trial. On May 5, 2002, Robert Bene ("Mr. Bene") arrived at his place of employment, The Willoughby Brewing Company. Mr. Bene drove a van to the back parking lot and parked near an employee's entrance. He then exited the van and entered The Willoughby Brewing Company via the employee's entrance. Mr. Bene left the doors of the van unlocked.
{¶ 4} When Mr. Bene returned to the van, he was carrying three tripod microphone stands. As he approached, Mr. Bene saw an intruder inside the van near the passenger and driver seats. He yelled at the intruder and proceeded to drop two of the microphone stands, while holding the third microphone stand in his left hand for protection. Unbeknownst to Mr. Bene, the intruder had parked a car adjacent to the van. Mr. Bene ran around the back of the van to approach the intruder. By the time Mr. Bene ran around the back of the van, the intruder had exited the van and was seated in the driver's seat of the adjacent car. The intruder's vehicle had been backed in next to the van so it was facing forward toward Mr. Bene. Mr. Bene made eye contact with the intruder and yelled at him to stop and get out of the car. The intruder's vehicle then rapidly accelerated, striking Mr. Bene. The force of the impact sent Mr. Bene, while still holding the microphone stand, on to the hood of the vehicle and to the ground.
{¶ 5} As the intruder's vehicle exited the parking lot, Mr. Bene's gym bag, which had previously been in the van, was thrown from the vehicle onto the pavement of the parking lot. Although shaken, Mr. Bene was able to obtain the license plate number of the intruder's vehicle. Immediately thereafter, Mr. Bene reported the incident and informed the police that he was uninjured with the exception of a bruised left thigh and scraped left elbow.
{¶ 6} On May 6, 2002, Mr. Bene selected appellant's picture out of a photo line-up as the intruder. Based upon Mr. Bene's identification of both the intruder and the vehicle's license plate number, appellant was arrested as a suspect and subsequently indicted.
{¶ 7} Following trial, the jury rendered a verdict of not guilty with respect to the counts of aggravated robbery, felonious assault, and robbery, in violation of R.C.
{¶ 8} From this judgment, appellant filed a timely notice of appeal and sets forth the following three assignments of error for our consideration:
{¶ 9} "[1.] The Defendant-Appellant was prejudiced when he was convicted of robbery and the conviction is against the manifest weight of the evidence.
{¶ 10} "[2.] The trial court erred to the prejudice of the Defendant-Appellant when it overruled her [sic] motion for acquittal made pursuant to Crim.R. 29 of the Ohio Rules of Criminal Procedure.
{¶ 11} "[3.] The trial court erred to the prejudice of the Defendant-Appellant when it sentenced Defendant-Appellant to a definite sentence of three (3) years in a correctional institution and failed to review all of the statutory factors announced in R.C.
{¶ 12} Under his first assignment of error, appellant contends that his conviction was against the manifest weight of the evidence. Appellant challenges the testimony of Mr. Bene, arguing that the events that occurred and the injuries that were sustained do not correlate with Mr. Bene's statements at trial. As a result, appellant concludes that the state failed to prove, beyond a reasonable doubt, that appellant used force against Mr. Bene while committing or attempting to commit a theft offense.
{¶ 13} As an initial matter, we are inclined to note that appellant has incorrectly framed his argument regarding Mr. Bene's testimony as a manifest weight of the evidence argument. Appellant's argument should have been framed in regards to sufficiency of the evidence, as "[t]he legal concepts of `sufficiency of the evidence' and `weight of the evidence' are quantitatively and qualitatively different." State v. Miller,
{¶ 14} In any event, we will review appellant's first assignment of error under both a sufficiency of the evidence standard and manifest weight standard. When reviewing the sufficiency of the evidence to support a criminal conviction, a court must examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average trier of fact of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991),
{¶ 15} To convict a defendant of robbery pursuant to R.C.
{¶ 16} "Force" is broadly defined under R.C.
{¶ 17} Appellant first argues that the injury to Mr. Bene's left thigh does not correlate with his testimony, as the point of impact of the vehicle's bumper was too low to cause an injury to the thigh. Thus, appellant concludes that the state failed to establish the use of "force."
{¶ 18} Appellant's contentions attack the credibility of Mr. Bene's testimony with respect to the existence or non-existence of a physical injury. This argument fails to recognize that testimony regarding the existence or non-existence of a physical injury is irrelevant to the state's burden to demonstrate "force." Specifically, R.C.
{¶ 19} Nevertheless, the testimony at trial clearly demonstrated the use of "force," as Mr. Bene testified that appellant rapidly accelerated his vehicle towards Mr. Bene in an attempt to escape the scene of the robbery. Mr. Bene's testimony demonstrates a violent action, during flight, exerted by appellant, which exposed Mr. Bene to actual or potential harm. Such testimony was credible and sufficient to conclude that appellant had used "force" as defined by R.C.
{¶ 20} Appellant further submits it is unfeasible that "force" was demonstrated, beyond a reasonable doubt, based upon the absence of any damage to the microphone stand and based upon Mr. Bene's ability to hold on to the microphone stand throughout the ordeal. Again, the state was not required to show that there was any physical damage to appellant's property to establish the use of "force." As previously indicated, Mr. Bene provided credible testimony that appellant, in an attempt to escape, rapidly accelerated his car toward Mr. Bene. Even assuming that appellant's car never came into contact with Mr. Bene, there was sufficient evidence demonstrating appellant used "force" while fleeing from the robbery.
{¶ 21} The foregoing analysis has determined there was sufficient evidence presented which would allow any rational trier of fact to conclude, beyond a reasonable doubt, that appellant had used "force" as defined by R.C.
{¶ 22} When reviewing a claim that a judgment was against the manifest weight of the evidence, an appellate court must review the entire record, weigh both the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that a new trial must be ordered. State v. Martin (1983),
{¶ 23} "The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. The role of the appellate court is to engage in a limited weighing of the evidence introduced at trial in order to determine whether the state appropriately carried its burden of persuasion. Thompkins
at 390 (Cook, J., concurring). The reviewing court must defer to the factual findings of the trier of fact as to the weight to be given the evidence and the credibility of the witnesses. Statev. DeHass (1967),
{¶ 24} Although appellant attempts to argue that Mr. Bene's testimony and the factual events depicted at trial are unfathomable, our foregoing analysis has demonstrated that the relevant events portrayed at trial were feasible. Accordingly, this court will not disturb those findings on appeal, as the credibility of each witness was a critical issue for the trier of fact to determine. State v. Ready (2001),
{¶ 25} Further, in addition to witness testimony, the state presented the results of a lab analysis. This analysis established that a sample of material taken from a scuff mark on the hood of appellant's vehicle was identical to the material found on Mr. Bene's microphone stand Such evidence further corroborates that appellant exerted "force" against Mr. Bene. Thus, this portion of appellant's first assignment of error is also not well taken.
{¶ 26} Appellant has failed to demonstrate that his robbery conviction was supported by insufficient evidence or was against the manifest weight of the evidence. Accordingly, appellant's first assignment of error is without merit.
{¶ 27} Under his second assignment of error, appellant contends that the trial court erred when it overruled his motion for acquittal pursuant to Crim.R. 29. Appellant again argues the state failed to prove, beyond a reasonable doubt, that "force" was used during the robbery. In support of his argument, appellant asserts that the jury chose to ignore Mr. Bene's testimony regarding his injured left thigh and, as a result, acquitted him of aggravated robbery, felonious assault, and robbery, in violation of R.C.
{¶ 28} Under Crim.R. 29, the trial court "shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978),
{¶ 29} Our analysis of appellant's first assignment of error has determined that Mr. Bene's testimony provided the jury with sufficient evidence to find, beyond a reasonable doubt, that appellant had used "force" during the attempted theft. Appellant's second assignment of error again argues that because the state was unable to show physical harm, it did not provide the jury with sufficient evidence to demonstrate force and, therefore, failed to establish a robbery conviction under R.C.
{¶ 30} As previously indicated, the state provided sufficient evidence of "force" to sustain a robbery conviction regardless of the existence or non-existence of physical harm. Therefore, appellant's second assignment of error is without merit.
{¶ 31} Under his third assignment of error, appellant submits that the trial court erred in sentencing him to a three-year prison term. Appellant challenges his sentence based on the following: (1) the court's failure to consider and announce its findings of the relevant statutory factors under R.C.
{¶ 32} A reviewing court will not reverse a sentence unless an appellant establishes that the trial court failed to comply with the applicable statutory requirements or that it abused its discretion by failing to consider sentencing factors. State v.Rupert, 11th Dist. No. 2001-L-169, 2002-Ohio-7268, at ¶ 5. "The term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams
(1980),
{¶ 33} Under R.C.
{¶ 34} Appellant first argues that the trial court erred by failing to consider the relevant statutory factors prior to sentencing. In State v. Comer,
{¶ 35} We first note that appellant's robbery conviction was a felony of the third degree and a consecutive sentence was not imposed. Pursuant to R.C.
{¶ 36} R.C.
{¶ 37} "* * * [I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{¶ 38} "The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term."
{¶ 39} The trial court noted in both the record of the sentencing hearing and its judgment entry of sentence that appellant had served a previous prison term. Such a finding represents an adequate reason, pursuant to R.C.
{¶ 40} Moreover, appellant erroneously argues that the trial court was required to specify its findings in relation to each of the factors set forth under R.C.
{¶ 41} Within the record of the sentencing hearing and the judgment entry of sentence, the trial court noted that it had considered the statutory factors of R.C.
{¶ 42} Next, appellant argues that in sentencing him to a three-year prison term, the trial court failed to consider his remorse. Under R.C.
{¶ 43} As the trial court was in the best position to evaluate the sincerity of appellant's alleged remorse, we hold that the court adequately considered remorse as a factor for sentencing. This portion of appellant's third assignment of error is not well taken.
{¶ 44} Moreover, the record before us substantiates the trial court's conclusion in this regard as appellant had a prior criminal history of convictions similar to the conviction in the instant case. Any remorse seemed to be short-lived. For this additional reason, this portion of appellant's third assignment of error is not well taken.
{¶ 45} Finally, appellant argues that the trial court erred in sentencing him to a three-year prison term based upon its erroneous factual finding that Mr. Bene had sustained serious physical injuries. After reviewing the transcript of the sentencing hearing, it is clear that the trial court mistakenly stated that Mr. Bene had incurred serious physical injuries. At trial, Mr. Bene testified that the only injuries incurred were a bruised left thigh and a scraped elbow, neither of which required medical attention. Furthermore, the jury obviously found that Mr. Bene had not sustained serious physical harm based upon its acquittal of appellant's aggravated robbery and felonious assault charges.
{¶ 46} Although the trial court erred in finding that Mr. Bene suffered serious physical harm, we conclude that such error is harmless. This erroneous factual conclusion was one of many factors the court considered under R.C.
{¶ 47} The aforementioned analysis has demonstrated that the trial court did not abuse its discretion in sentencing appellant to a three-year prison term. Appellant's third assignment of error is without merit.
{¶ 48} Based upon the foregoing analysis, appellant's three assignments of error are without merit. We hereby affirm appellant's conviction and sentence.
Ford, P.J., O'Neill, J., concur.