[Cite as State v. Martin, 2014-Ohio-875.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.      13CA010356

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ROBERT H. MARTIN                                    COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   12CR086124

                                  DECISION AND JOURNAL ENTRY

Dated: March 10, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Robert Martin, appeals from the judgment of the Lorain County Court

of Common Pleas. This Court affirms.

                                                I

        {¶2}     On September 27, 2012, Paul Allgood and his wife were in front of a high-rise

apartment building on East Avenue in Elyria, Ohio. Allgood had arranged to meet Brandon

Green there to collect money to deposit into Allgood’s step-son’s jail account. Green arrived in

a car with Maurice Newell and Martin. Newell parked the car in the back parking lot, and

Allgood approached the car to talk to Green. While Allgood was talking to Green, Martin

jumped out of the car and shoved a gun into Allgood’s neck. Martin then robbed Allgood of

$180 cash, a cell phone, and a necklace. Martin got back into the car, and Newell drove away.

        {¶3}     Brandon Leety, a Time Warner Cable employee, was in the parking lot and

noticed a man standing outside of a nearby car pointing a gun at a passenger in the back seat.
                                                  2


Leety then went inside the apartment building and asked the secretary to call the police. The

police arrived on scene and interviewed Leety and Allgood. Allgood was then transported to the

police station, where he gave written and oral statements.

       {¶4}    Martin was indicted on aggravated robbery, in violation of R.C. 2911.01(A)(1), a

felony of the first degree, and robbery, in violation of R.C. 2911.02(A)(2), a felony of the second

degree. A jury found Martin guilty on both counts. At sentencing, the court found that the two

crimes were allied offenses of similar import and merged the robbery into the aggravated

robbery. The court then sentenced Martin to four years in prison for aggravated robbery.

       {¶5}    Martin now appeals and raises two assignments of error for our review. To

facilitate the analysis, we rearrange his assignments of error.

                                                 II

                                Assignment of Error Number Two

       THERE WAS NOT SUFFICIENT EVIDENCE TO ESTABLISH PROOF
       BEYOND A REASONABLE DOUBT.

       {¶6}    In his second assignment of error, Martin argues that his convictions are not

supported by sufficient evidence. We disagree.

       {¶7}     “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Carson, 9th Dist. Summit No. 26900,

2013-Ohio-5785, ¶ 23, quoting State v. Slevin, 9th Dist. Summit No. 25956, 2012-Ohio-2043, ¶

15. “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine

whether the case may go to the jury or whether the evidence is legally sufficient to support the

jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting

Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy.”

Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be viewed in a
                                                 3


light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two

of the syllabus. The pertinent question is whether “any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” Id.

       {¶8}    “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955).             This Court,

therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,

2008-Ohio-3721, ¶ 4 (9th Dist.).

       {¶9}    A person is guilty of aggravated robbery if he or she, in “committing a theft

offense * * * [has] a deadly weapon on or about [his or her] person * * * and either display[s] the

weapon[ or] brandish[es] it * * *.” R.C. 2911.01(A)(1). A person is guilty of theft if he or she,

with the purpose to deprive the owner of property, knowingly obtains or exerts control over the

property without the consent of the owner. R.C. 2913.02(A)(1). “A person acts knowingly,

regardless of his purpose, when he is aware that his conduct will probably cause a certain result

or will probably be of a certain nature. A person has knowledge of circumstances when he is

aware that such circumstances probably exist.” R.C. 2901.22(B).

       {¶10} A person is guilty of robbery if, in “committing a theft offense * * * [he or she]

[i]nflict[s], attempt[s] to inflict, or threaten[s] to inflict physical harm on another * * *.” R.C.

2911.02(A)(2).

       {¶11} At trial, Allgood testified that he arranged to meet Green at a high-rise apartment

building on East Avenue in Elyria. Allgood explained that he was collecting money to deposit

into his step-son’s jail account so that his step-son could purchase items from the commissary

while incarcerated. According to Allgood, Green was friends with his step-son and wanted to

contribute.
                                                  4


          {¶12} Allgood testified that he was standing in front of the high-rise apartment building

when a car pulled up. Allgood recognized the three men inside the car as Newell, Martin, and

Green. Allgood explained that Newell was driving, Martin was sitting in the front passenger

seat, a child was sitting in the back seat behind Newell, and Green was sitting behind Martin.

Allgood testified that the car was blocking traffic so Newell pulled into the apartment’s parking

lot and Allgood followed on foot. When Allgood reached the car, Green moved over and told

Allgood to get in. Allgood testified that he got into the back seat on the passenger’s side, behind

Martin.

          {¶13} According to Allgood, he had a brief conversation with Green before removing

$180 in cash from his pants’ pocket. Allgood explained that Green wanted to contribute to his

step-son’s jail account, but wanted change for a $50. Allgood testified that as soon as he

removed the cash from his pocket, Martin exited the car, opened the passenger’s side rear door

where Allgood was sitting, and shoved a gun into his neck. Martin then said, “[g]ive me my

s***,” snatched the money from Allgood’s hand, grabbed his cell phone from the clip on the

right side of his hip, and removed his necklace. Martin then ordered Allgood out of the car and

told him to take off. Allgood testified that he was too scared to run, but did leave the scene

quickly after Martin threatened him again with the gun.

          {¶14} Viewing the evidence in a light most favorable to the State, a rational juror could

have found that Martin knowingly took Allgood’s cash, cell phone, and necklace without

Allgood’s permission and with the purpose to deprive Allgood of his property.            See R.C.

2913.02(A)(1). Further, a rational juror could have found that Martin displayed a weapon and

threatened to inflict physical harm while committing the theft offense. See R.C. 2911.01(A)(1)
                                                 5


and 2911.02(A)(2). Because there was sufficient evidence to support his convictions, Martin’s

second assignment of error is overruled.

                                Assignment of Error Number One

       THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶15} In his first assignment of error, Martin argues that his convictions are against the

manifest weight of the evidence. We disagree.

       {¶16} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387. “Weight of the

evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,

to support one side of the issue rather than the other.’” (Emphasis sic.) Thompkins at 387,

quoting Black’s at 1594.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “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 fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.

       {¶17} Martin argues that Allgood was not a credible witness because of his criminal past

and inconsistent statements regarding the details of the robbery.
                                               6


       Criminal Past

       {¶18} At trial, Allgood testified about his criminal convictions, which included domestic

violence, drug trafficking, theft, and nonsupport. Allgood admitted that while he did not have

any felony convictions in the past five years, he was under indictment for breaking and entering.

His convictions were discussed on both direct and cross-examination.

       Inconsistent Statements

       {¶19} Martin argues that Allgood gave inconsistent versions of the robbery in his

written and oral statements to the police, testimony at the preliminary hearing, and testimony at

trial. We discuss each statement in turn.

               a. Written Statement

       {¶20} Allgood provided the following written statement to the police shortly after the

robbery.

       I was standing with my wife and some friends, visiting and having fun. When a
       car pulled up with 3 people in it. Brandon Green, Masson and Bobby Martin was
       in the car. One of the passagers asked me about my step-son Dominique when
       Bobby Martin jumped out the car and pulled a 357 pistol on me and took my
       money, $180 cash, my cell phone and a $700 necklace. (Sic.)

       {¶21} At trial, Allgood admitted that he mistakenly wrote 225 Eighth Street, instead of

222 Eighth Street, on the bottom of the statement as his home address. Allgood explained that

he was still “shook” up from the robbery when he wrote his statement and does not know why he

wrote the wrong address.

               b. Audio Statement

       {¶22} In addition to a written statement, Allgood provided the police with a verbal

statement of the incident shortly after the robbery. The recording of Allgood’s statement is 8

minutes and 40 seconds long.
                                                  7


          {¶23} Allgood said that he and his wife were out front of the high-rise apartment

building visiting friends when a car pulled up and one of the passengers shouted Allgood’s name.

Allgood recognized the three men in the car as Newell, Martin, and Green. Newell was driving,

Martin was in the front passenger seat, Green was sitting behind Martin, and a baby, in a car seat,

was behind Newell. Allgood described the car as a foreign dark blue sports car. Allgood said

the car had tinted windows, nice rims, and looked “racy.”

          {¶24} Allgood told the police that the car was blocking traffic so it pulled into the back

parking lot of the apartment building and Allgood followed. Allgood said he was standing at the

back passenger window talking to Green when Martin jumped out of the car, put a gun to

Allgood’s neck, and said, “mother f******, where’s my s***.” Allgood thought the gun was

something like a .357 or .44. He described the gun as a long barrel revolver, not solid black,

silver, or chrome, but “greyish” in color with a red mark on the sight.

          {¶25} Allgood said that as soon as Martin pulled his gun, Green climbed over the front

seat, exited the front passenger door, and fled. Green could not exit out of the back doors

because the baby seat was blocking the driver’s side and Allgood was blocking the passenger’s

side. Meanwhile, Newell was saying, “hey, hey, I got my baby in here.” Martin then took

Allgood’s phone from the clip on his right hip, his necklace from around his neck, and $180 in

cash from his right front pants’ pocket. Allgood said Martin checked all of his pockets before

telling him to leave the area. Allgood explained that he was scared to run away and did not leave

until Martin again pointed the gun at him and told him to take off running. Allgood then quickly

made his way back to the front of the apartment building, where he found Green. Allgood said

Martin got back into the car and Newell drove out of the parking lot, heading toward Broad

Street.
                                                  8


        {¶26} Green told Allgood that he would try to get his property back and began walking

up the street. Allgood said he followed Green for a while, but decided he did not want to

confront Martin because he had a gun. At that point, Green’s girlfriend pulled up in her car and

Green got in. Allgood returned to the high-rise and spoke to the police officers that had arrived.

        {¶27} After Allgood provided the police with his written and oral statement at the police

station, he signed a complaint against Newell for aggravated robbery. At trial, Allgood testified

that the police prepared the complaint and he just signed it. He did not discuss the complaint

with the officers or request that the police charge Newell.

                c. Preliminary Hearing

        {¶28} Approximately one month after the robbery, Allgood testified at a preliminary

hearing. Allgood testified that on the evening of September 27, he and his wife walked up to the

high-rise apartment building on East Avenue. Allgood stated that he had spoken to Green earlier

and the two had arranged to meet there. He testified that a car pulled up with Newell, Martin,

and Green inside. Allgood explained that Newell was driving, Martin was in the front passenger

seat, Green was sitting behind Martin, and a baby was sitting behind Newell. Allgood testified

that he was not sure what kind of car it was and could not recall its color. He said that it was a

four door car, not a sports utility vehicle.

        {¶29} He testified that the car parked in the back parking lot, behind the apartment

building, and he approached the car alone. He then got in the back seat of the car next to Green.

Allgood said that he was talking to Green about his step-son that was incarcerated and was trying

to collect money to deposit into his jail account. The next thing Allgood knew, Martin exited the

car, opened Allgood’s door, and shoved a pistol into his neck. Allgood could not remember the

caliber or color of the gun, but was pretty sure it was a revolver.
                                                 9


       {¶30} Allgood testified that when Martin pulled out his gun Newell seemed genuinely

surprised and concerned for his baby, who was in the car, and Green jumped out of the car and

ran. Allgood said that Martin snatched $180 in cash from his hand, removed his cell phone from

the clip on his right hip, and took his necklace from around his neck. Martin then told Allgood

to get out of the car and run. Allgood testified that he exited the car and left the scene. Allgood

said that he did not see where the car went, but he knows the car left the area.

               d. Trial

       {¶31} A trial began on January 7, 2013, approximately three months after the robbery.

At trial, Allgood testified that on September 27, 2012, he and his wife were out walking and

stopped at various places to talk to family and friends. He had arranged to meet Green at the

high-rise apartments because Green wanted to contribute to Allgood’s step-son’s jail account.

Allgood testified that he was standing in front of the high-rise when a car pulled up. Allgood

said he recognized the occupants as Newell, Martin, and Green. Allgood testified that Newell

was driving, Martin was in the front passenger seat, a baby was directly behind Newell, and

Green was behind Martin. Allgood explained that because the car was blocking traffic, it pulled

around back and he followed on foot.

       {¶32} When Allgood got to the parked car, Green slid over and Allgood got into the

back seat on the passenger’s side. Allgood testified that when he pulled money out of his pants’

pocket to give Green change Martin suddenly jumped out of the car, opened the back door, and

put a gun to Allgood’s neck. Allgood said he did not know the “exact make and model” of the

gun, but knew that it was a long barrel revolver. Allgood testified that when Martin drew his

gun, Green jumped over the front seat, exited the car out of the front passenger door, and fled the
                                                10


scene. Newell, meanwhile, looked surprised and expressed concern about his baby being in the

car.

       {¶33} Allgood stated that after Martin placed the gun to his neck, Martin snatched the

$180 from his hand, a cell phone from a clip on his right hip, and removed his necklace from

around his neck. Martin then ordered Allgood out of the car and told him to “[g]et the f*** up

out of [t]here.” Allgood testified that he did not leave until Martin pointed the gun at him again,

and told him he had “better get the F up out of [t]here.” Allgood then quickly returned to the

front of the apartment building.

       {¶34} Allgood testified that Green was at the front of the apartment building when he

arrived. Allgood spoke to Green and told Green he wanted his property back. According to

Allgood, Green was going to meet up with Martin to try to get Allgood’s belongings returned.

Allgood testified that Green began walking toward a meeting spot. Allgood followed Green for

a while, but thought better of confronting a man with a gun and decided to turn around. When

Allgood arrived back at the high-rise apartment building, the police were there. Allgood spoke

with the officers on the scene and accompanied them to the police station where he gave his

written and oral statements.

Other Testimony at Trial

       {¶35} The State also called Brandon Leety as a witness. Leety, a Time Warner Cable

employee, was at the high-rise apartment building to install service to one of the residents. He

testified that he was parked in the back parking lot, backed into a parking space. Leety explained

that while he was standing on the passenger’s side of his van collecting his equipment, he heard

shouting from a nearby car. He looked to his right and saw an individual leaning into the open

rear passenger door and pointing a gun at the person in the back seat. Leety explained that the
                                                  11


car was directly across from him, facing the opposite direction. Leety thought the car was a

Chrysler 300, and remembered that one of the taillights was out and covered by red tape. Leety

further testified that he thought the car might have been green, but that he was not paying much

attention to that detail. After seeing the gunman, Leety said he immediately locked his van and

went into the apartment building where he asked the secretary to call the police.

       {¶36} Leety testified that he did not see the faces of any of the people involved, but

provided a description of their physique. Leety said he thought the driver was female, but

admitted that the driver was facing the opposite direction and could have been a male with long

hair. Leety also noticed a baby was in the car.

       {¶37} The defense called Jacqueline Martin, Martin’s mother, to testify. According to

Jacqueline, Allgood asked her to pay for “a watch, a phone, a necklace, and $180 that had

supposedly been taken from him.” In exchange, Jacqueline understood that Allgood would drop

the charges against Martin. Allgood testified that he never offered to drop the charges if his

property was returned.

       {¶38} Jacqueline testified that she has prior convictions for assault on a police officer,

receiving stolen property, forgery, possession of cocaine, and theft. She further testified that she

is bipolar and schizophrenic.

Conclusion

       {¶39} A review of the evidence does show some inconsistencies between Allgood’s

various accounts, e.g., Allgood was standing outside of the car when Martin went through his

pockets and retrieved his cash versus Allgood was sitting inside the car when Martin snatched

the cash from his hand.         However, the inconsistencies were thoroughly vetted on cross-

examination. Allgood never wavered in his statement that Martin, a man he knew, pointed a gun
                                                 12


at him and stole $180 in cash, his cell phone, and necklace. Additionally, Allgood’s criminal

history was fully disclosed to the jury. “[C]redibility determinations are primarily for the trier of

fact.” State v. Browning, 9th Dist. Summit No. 26687, 2013-Ohio-2787, ¶ 18. Despite the

inconsistencies between Allgood’s statements, this is not the exceptional case where the jury lost

its way. See State v. Harris, 9th Dist. Summit No. 25364, 2011-Ohio-4066, ¶ 31.

       {¶40} Martin’s first assignment of error is overruled.

                                                 III

       {¶41} Martin’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                       BETH WHITMORE
                                                       FOR THE COURT
                                        13




BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

KENNETH N. ORTNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
