State v. Roth , 2014 Ohio 4273 ( 2014 )

[Cite as State v. Roth, 2014-Ohio-4273.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2013-0040
JOSEPH ROTH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2013-0012
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 25, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH ERIN ALLEN
Assistant Prosecuting Attorney The Law Offices of Eric J. Allen, LTD
27 North Fifth Street 713 South Front
Zanesville, Ohio 43701 Columbus, Ohio 43206
Muskingum County, Case No. CT2013-0040 2
Hoffman, P.J.
{¶1} Defendant-appellant Joseph Roth appeals his conviction entered by the
Muskingum County Court of Common Pleas for aggravated robbery and theft. Plaintiff-
appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 10, 2013, Officer Scott Caldwell of the Dresden Police
Department, while patrolling a location known for illegal drug activity, observed a car
drive through the area slowly and stop near the suspect location. Officer Caldwell
returned to the area five minutes later, and observed a group of people in the middle of
the street. He then witnessed a bloody, black male run away from the others. The
black male was later identified as Jeff Body, the victim in this case. Officer Caldwell
notified the Muskingum County Sheriff's Office, requesting assistance.
{¶3} Jeff Body testified at trial herein, he went to Amy Johnson's house in the
early morning hours of January 10, 2013, after she contacted him numerous times
about coming to her home. Shortly after his arrival, Body heard a loud noise and four
men with masks burst into the bedroom. Body tried to run, but at least one of the men
with masks had a gun. Body was beaten inside the residence, and again as he exited
the residence. He testified the beating only stopped once the police arrived. Body
testified his wallet and vehicle were stolen during the altercation.
{¶4} In the early morning hours of January 10, 2013, Deputy Ryan Williams of
the Muskingum County Sheriff's Office arrested Appellant in the victim's car a short
distance from the scene. Deputy Williams observed two masks and a pair of gloves in
Muskingum County, Case No. CT2013-0040 3
the car. The victim testified the mask and gloves did not belong to him, and were not in
the car when he was driving.
{¶5} Amy Johnson testified she had been in contact with Adam Poulton, and
Poulton had discussed robbing Body on several occasions. Johnson identified all three
men involved in the robbery, including Appellant. She explained Adam Poulton beat
Body, and Appellant demanded she give him the "F-ing keys."
{¶6} Chad Bocook, another defendant, testified he was with Appellant during
the planning stages earlier in the night and throughout the commission of the offense.
He testified he rode in the car with Appellant to Johnson's house. He indicated Adam
Poulton had a .40 caliber Smith and Wesson to be used as Poulton and Appellant
robbed the victim. He further testified Appellant stole the victim's car.
{¶7} Following a jury trial, Appellant was convicted of aggravated robbery, a
felony of the first degree, in violation of R.C. 2911.01(A)(1); theft, a felony of the fourth
degree, in violation of R.C. 2913.02(A)(1); and theft, a felony of the fifth degree, in
violation of R.C. 2913.02(A)(1). At sentencing, the trial court merged the aggravated
robbery and fifth degree theft charges, sentencing on the aggravated robbery count.
Appellant was sentenced to an aggregate prison term of eight years.
{¶8} Appellant appeals, assigning as error:
{¶9} "I. THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO
CONVICT THE APPELLANT OF AGGRAVATED ROBBERY, THE GUN
SPECIFICATION, FELONIOUS ASSAULT AND THE THEFT CHARGES THUS
VIOLATING APPELLANT'S RIGHT TO DUE PROCESS PURSUANT TO THE FIFTH
Muskingum County, Case No. CT2013-0040 4
AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH.
{¶10} "II. THE JUDGMENT OF CONVICTION FOR FELONIOUS ASSAULT,
AGGRAVATED ROBBERY WITH A GUN SPECIFICATION, AND THEFTS IS
AGAINST THE WEIGHT OF THE EVIDENCE."
I. and II.
{¶11} Appellant's assigned errors raise common and interrelated issues;
therefore, we will address the arguments together.
{¶12} Appellant maintains his convictions are against the manifest weight and
sufficiency of the evidence. We disagree.
{¶13} When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt. State v.
Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997) (stating that “sufficiency is
a test of adequacy”); State v. Jenks, 61 Ohio St. 3d 259, 274, 574 N.E.2d 492 (1991).
The standard of review is whether, after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution, any rational
trier of fact could have found all the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979); Jenks, 61 Ohio St. 3d at 273, 574 N.E.2d 492. Furthermore, a reviewing
court is not to assess “whether the state's evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.” Thompkins, 78
Ohio St. 3d at 390, 678 N.E.2d 541 (Cook, J., concurring).
Muskingum County, Case No. CT2013-0040 5
{¶14} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate
court must construe the evidence in a light most favorable to the prosecution. State v.
Hill, 75 Ohio St. 3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St. 3d
465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds could not reach the
conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St. 3d 146, 162, 749
N.E.2d 226 (2001); State v. Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749 (2001).
{¶15} When an appellate court considers a claim a conviction is against the
manifest weight of the evidence, the court must dutifully examine the entire record,
weigh the evidence, and consider witness credibility. A reviewing court must bear in
mind, however, that credibility generally is an issue for the trier of fact to resolve. E.g.,
State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio
St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Once
the reviewing court finishes its examination, the court may reverse the conviction only if
it appears that the fact-finder, when resolving the conflicts in evidence, “clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶16} If the prosecution presented substantial evidence upon which the trier of
fact reasonably could conclude, beyond a reasonable doubt, the essential elements of
the offense had been established, the judgment of conviction is not against the manifest
weight of the evidence. State v. Eley, 56 Ohio St. 2d 169, 383 N.E.2d 132 (1978),
syllabus. Generally, a reviewing court should find a conviction against the manifest
Muskingum County, Case No. CT2013-0040 6
weight of the evidence only in the “exceptional case in which the evidence weighs
heavily against the conviction." Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717; accord State v. Lindsey, 87
Ohio St. 3d 479, 483, 721 N.E.2d 995 (2000).
{¶17} Appellant was convicted of aggravated robbery, in violation of R.C.
2911.01(A)(1),
{¶18} "(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:
{¶19} "(1) Have a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that the offender
possesses it, or use it;"
{¶20} Appellant was convicted of theft, in violation of R.C. 2913.02, which reads,
{¶21} "(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services in any of the
following ways:
{¶22} "(1) Without the consent of the owner or person authorized to give
consent;"
{¶23} R.C. § 2923.03 defines complicity as,
{¶24} "(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
{¶25} "(1) Solicit or procure another to commit the offense;
{¶26} "(2) Aid or abet another in committing the offense;
Muskingum County, Case No. CT2013-0040 7
{¶27} "(3) Conspire with another to commit the offense in violation of section
2923.01 of the Revised Code;
{¶28} "(4) Cause an innocent or irresponsible person to commit the offense.
{¶29} "***
{¶30} "(F) Whoever violates this section is guilty of complicity in the commission
of an offense, and shall be prosecuted and punished as if he were a principal offender.
A charge of complicity may be stated in terms of this section, or in terms of the principal
offense." (Emphasis added.)
{¶31} At trial, the trial court instructed the jury as to complicity pursuant to the
statute:
{¶32} "Complicity. No person acting with the kind of culpability required for the
commission of an offense shall do any of the following: Aid or abet another in
committing the offense. Whoever violates this section is guilty of complicity in the
commission of an offense and shall be prosecuted and punished as if he were a
principal offender.
{¶33} "Aided or abetted means supported, assisted, encouraged, cooperated
with, advised or incited.
{¶34} "You have heard the testimony from Amy Johnson and Chad Bocook who
pleaded guilty to the same crimes charged in this case and both are said to be
accomplices. An accomplice is one who purpose Lee [sic] knowingly assists or joins
another in the commission of a crime. Whether Amy Johnson and Chad Bocook were
both an accomplice and the wait [sic] to give his or her testimony are matters for you to
determine from all the facts and circumstances in evidence.
Muskingum County, Case No. CT2013-0040 8
{¶35} "The testimony of an accomplice does not become inadmissible because
of his or her complicity, moral turpitude, or self-interest, but the admitted or claimed
complicity of a witness may affect his or her credibility and make his or her testimony
subject to grave suspicion and require that it be weighed with great caution.
{¶36} "It is for you, as jurors, in the light of all of the facts presented to you from
the witness stand to evaluate such testimony and to determine its quality and worth or
its lack of quality and worth."
{¶37} The victim testified he was beaten inside and outside the residence, and
his car and wallet were stolen. In addition, the corroborating testimony of Amy Johnson
and Chad Bocook, both codefendants of Appellant, testified as to the planning and
commission of the offense, including the indication of a firearm during the offense.
{¶38} Upon review of the evidence, including the testimony of the accomplices,
we find, Appellant's convictions are not against the manifest weight nor the sufficiency
of the evidence, as Appellant acted in complicity and aided and abetted the commission
of the offenses. Both assignments of error are overruled.
Muskingum County, Case No. CT2013-0040 9
{¶39} Appellant's convictions entered by the Muskingum County Court of
Common Pleas, Criminal Division, are affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur