[Cite as State v. Binford, 2016-Ohio-7678.]


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

STATE OF OHIO                                        C.A. No.      27950

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ALLEN BINFORD                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2015 04 1082

                                  DECISION AND JOURNAL ENTRY

Dated: November 9, 2016



        CARR, Presiding Judge.

        {¶1}     Appellant, Allen Binford, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     On April 17, 2015, the Summit County Grand Jury indicted Binford on one count

of aggravated robbery and one count of felonious assault. Binford pleaded not guilty to the

charges at arraignment. The matter proceeded to a jury trial and Binford was found guilty of the

lesser included offenses of robbery and assault. Binford contended that because the verdict form

for robbery did not specify the degree of the offense or identify an aggravating element, he could

only be convicted of the lowest degree of the offense under State v. Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256. After permitting the parties to brief the issue, the trial court concluded that

Binford was guilty of robbery as a felony of the second degree. Binford received a three-year
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prison sentence for robbery and a 180-day jail sentence for assault. The trial court ordered that

the sentences run consecutively to each other.

       {¶3}    On appeal, Binford raises two assignments of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       MR. BINFORD’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶4}    In his first assignment of error, Binford argues that his convictions for robbery

and assault were against the weight of the evidence. This Court disagrees.

       {¶5}    When a defendant argues that his convictions were contrary to the weight of the

evidence, this Court must review all of the evidence before the trial court:

       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.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), 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.

       {¶6}    Binford was convicted of assault in violation of R.C. 2903.13(A), which states,

“No person shall knowingly cause or attempt to cause physical harm to another[.]” “A person

acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will
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probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when the person is aware that such circumstances probably exist.” R.C.

2901.22(B). Binford was also convicted of robbery in violation of R.C. 2911.02(A), which

states:

          No person, in attempting or committing a theft offense or in fleeing immediately
          after the attempt or offense, shall do any of the following:

          **

          (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

          (3) Use or threaten the immediate use of force against another.

“Physical harm” is defined as “any injury, illness, or other physiological impairment, regardless

of its gravity or duration.”         R.C. 2901.01(A)(3).       “Force” is defined as “any violence,

compulsion, or constraint physically exerted by any means upon or against a person or thing.”

R.C. 2901.01(A)(1).

          {¶7}    The central tenet of Binford’s manifest weight challenge is that the testimony of

the alleged victim, A.H., was not credible. With respect to both of his convictions, Binford

asserts that a review of the record in its entirety demonstrates that he did not cause physical harm

to A.H., nor did he attempt to injure her in any way. In specific regard to his robbery conviction,

Binford contends that there was no evidence in the record that he committed a theft offense.

          {¶8}    A review of the transcript reveals that on the evening of April 6, 2015, A.H.

encountered Binford while walking near her house on Henry St., in Akron, Ohio. According to

A.H., she invited Binford into her house where they smoked crack cocaine. He grew paranoid

and began “acting like [A.H.] was the enemy.” Binford’s aggression caused A.H. to become

uncomfortable and she asked him to leave. Binford was angered by her request and he walked

out of the house to a car in the driveway. When A.H. arrived at the doorway, Binford asked if he
                                                4


could smoke the crack in his hand before departing. A.H. reluctantly agreed, reasoning, “it was

just easier to say yes to let him smoke that crack and not cause any problems.” After Binford

pushed A.H. out of the way and reentered the house, he accused her of stealing $20 from him.

A.H. denied that she had taken any money. Binford proceeded to smoke the crack cocaine. A.H.

grew fearful as Binford became increasingly more aggressive. In light of Binford’s behavior and

the dispute about the money, A.H. attempted to hide in the back of the house. When Binford

found A.H., he punched her in the face. A.H. fell to the ground and Binford started kicking her

in the head and stomach. A.H. testified that there was blood all over her body. Though she

begged Binford to stop striking her, he hit her “at least 50 times.” Photographs introduced as

exhibits at trial demonstrated that A.H. suffered significant injuries. When police arrived at the

scene, A.H. identified her attacker as a man named “Al.” She provided a description and pointed

the officers in the direction the man had fled. Shortly thereafter, police encountered Binford,

who matched the description provided by A.H. When the officers encountered Binford, “his

hands were covered in blood and he was carrying a bloody rag in his hand.” One officer testified

that, when Binford noticed the officers, he attempted to discard a cell phone. Police recovered

the cell phone and discovered that it belonged to A.H.

       {¶9}    Binford testified in his own defense at trial and sharply disputed A.H.’s version of

events. Binford admitted that he drank beer at A.H.’s house but he denied smoking crack

cocaine. Binford also denied that he and A.H. were involved in a violent confrontation. With

respect to the cell phone, Binford testified that he gave A.H. $50 with the understanding that she

would go to the store and then return the change. According to Binford, when A.H. was unable

to produce the change, she agreed to give Binford her cell phone as collateral until she was able

to procure money the following day.
                                                  5


       {¶10} A thorough review of the record reveals that this is not the exceptional case where

the trier of fact clearly lost its way. A.H.’s testimony indicated that she suffered a brutal attack

at the hands of Binford. The evidence at trial further revealed that A.H. and Binford had a

dispute about money and Binford left her house with her cell phone in his possession. While

Binford challenges the credibility of A.H.’s testimony, the issue of her credibility was placed

squarely before the jury at trial.     A.H. admitted that she suffered from an on-going drug

addiction.    Moreover, both A.H. and Binford were cross-examined regarding potential

inconsistencies and inaccuracies in their testimony. This Court has consistently held that the

trier of fact is in the best position to evaluate the credibility of witnesses and resolve factual

disputes. State v. McNeil, 9th Dist. Summit No. 27720, 2016-Ohio-4669, ¶ 16, citing State v.

Velez, 9th Dist. Lorain No. 14CA010683, 2016-Ohio-2875, ¶ 11. “[T]his Court will not overturn

the trial court’s verdict on a manifest weight of the evidence challenge simply because the jury

chose to believe certain witnesses’ testimony.” Velez at ¶ 11, citing State v. Ross, 9th Dist.

Wayne No. 12CA0007, 2013-Ohio-522, ¶ 16. Under these circumstances, where there was

ample evidence that Binford physically attacked A.H. and then stole her cell phone, we cannot

say that the jury clearly lost its way and created a manifest miscarriage of justice.

       {¶11} Binford’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       SENTENCED MR. BINFORD TO A FELONY OF THE SECOND DEGREE
       ON COUNT ONE WHERE THE JURY VERDICT FORMS FAILED TO
       CONFORM WITH STATE V. MCDONALD, STATE V. PELFREY, AND R.C.
       2945.75(A)(2).

       {¶12} In his second assignment of error, Binford contends that the trial court erred when

it categorized his robbery conviction as a felony of the second degree, instead of a felony of the
                                                  6


third degree, when the jury verdict forms did not either contain an enhancing element or state the

degree of the offense. This Court disagrees.

       {¶13} R.C. 2945.75(A)(2) states that “[w]hen the presence of one or more additional

elements makes an offense one of more serious degree * * * [a] guilty verdict shall state either

the degree of the offense of which the offender is found guilty, or that such additional element or

elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least

degree of the offense charged.” The Supreme Court of Ohio has held that “[p]ursuant to the

clear language of R.C. 2945.75, a verdict form signed by a jury must include either the degree of

the offense of which the defendant is convicted or a statement that an aggravating element has

been found to justify convicting a defendant of a greater degree of a criminal offense.” State v.

Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, syllabus. With respect to R.C. 2945.75, “[i]ts

dictates are simple, and the resolution of cases that do not meet its requirements is also

straightforward: The statute provides explicitly what must be done by the courts [when R.C.

2945.75(A)(1) is not followed]: the guilty verdict constitutes a finding of guilty of the least

degree of the offense charged. R.C. 2945.75(A)(2).” (Internal quotations omitted.) State v.

McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, ¶ 14, quoting Pelfrey at ¶ 13.

       {¶14} As noted above, Binford was convicted of robbery in violation of R.C.

2911.02(A), which states:

       No person, in attempting or committing a theft offense or in fleeing immediately
       after the attempt or offense, shall do any of the following:

       (1) Have a deadly weapon on or about the offender’s person or under the
       offender’s control;

       (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

       (3) Use or threaten the immediate use of force against another.
                                                   7


R.C. 2911.02(B) specifies that [w]hoever violates this section is guilty of robbery. A violation of

division (A)(1) or (2) of this section is a felony of the second degree. A violation of division

(A)(3) of this section is a felony of the third degree.”

       {¶15} After the conclusion of the State’s case-in-chief, defense counsel informed the

trial court that it would be requesting a jury instruction on the lesser-included offense of robbery

in regard to the aggravated robbery charge. The trial court responded, “Having to do with the

definition of serious physical harm?” Defense counsel answered in the affirmative and stated he

hoped to “look at all the different alternatives there are.” The trial court ultimately gave an

instruction on the lesser included offense of robbery as defined by R.C. 2911.02(A)(2), stating,

“The offense of robbery is defined as the defendant, in committing or attempting to commit a

theft offense, or in fleeing immediately thereafter, did inflict or attempt to inflict or threaten to

inflict physical harm on A.H. The only difference between aggravated robbery and robbery is

the level of harm. One is serious physical harm and the lesser included offense is simply

physical harm. * * * You will use all the same definitions for aggravated robbery you will for

robbery with that one exception as to the physical harm.” Though the jury ultimately acquitted

Binford of aggravated robbery, it convicted Binford of the lesser included offense of robbery.

The verdict form merely stated, “We, the Jury, in this case being duly impaneled and sworn to

well and truly try and true deliverance make between the State of Ohio and the Defendant, do

find the Defendant ALLEN D. BINFORD guilty of the lesser offense of Robbery.” The verdict

form did not set forth the level of the offense, nor did it contain any discussion of the elements of

the offense. Prior to sentencing, Binford filed a brief asserting that, in light of the verdict form,

he could only be sentenced on the least degree of the offense. The trial court rejected Binford’s

contention and sentenced him on second-degree felony robbery.
                                                8


       {¶16} On appeal, Binford relies on the Third District’s decision in State v. Duncan, 3d

Dist. Logan No. 8-12-15, 2014-Ohio-2720, and several other cases, in support of the proposition

that in order to raise the degree of the offense for robbery from a third degree to a second degree

felony, the State must prove additional elements. Duncan at ¶ 11. Binford reasons that because

the verdict form did not identify these additional elements or the degree of the offense, he could

only have been found guilty of a felony of the third degree under R.C. 2945.75(A)(2).

       {¶17} We conclude Binford’s argument to be without merit.              R.C. 2945.75(A)(2)

applies under circumstances where “the presence of one or more additional elements makes an

offense one of more serious degree[.]” This Court has concluded that R.C. 2945.75(A)(2) is

inapplicable where a criminal statue contains multiple subsections and each subsection contains a

separate and distinct set of elements. State v. Edwards, 9th Dist. Lorain No. 12CA010274, 2013-

Ohio-3068, ¶ 34, citing State v. Crosky, 10th Dist. Franklin No. 06AP-065, 2008-Ohio-145, ¶

147-148; State v. Randles, 9th Dist. Summit No. 26629, 2013-Ohio-4681, ¶ 8-9. Though the

jury found Binford not guilty of aggravated robbery, which required the State to demonstrate that

Binford inflicted “serious physical harm” on A.H., the jury found Binford guilty of the lesser

included offense of robbery which, pursuant to R.C. 2911.02(A)(2), only required the State to

demonstrate that Binford inflicted “physical harm.” While R.C. 2911.02 “does contain other

subsections, * * * each has their own separate elements.” Randles at ¶ 9, quoting Edwards at ¶

35. It follows that R.C. 2945.75(A)(2) was not applicable under these circumstances.

       {¶18} The second assignment of error is overruled.

                                               III.

       {¶19} Binford’s first and second assignments of error are overruled. The judgment of

the Summit County Court of Common Pleas is affirmed.
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                                                                              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 Summit, 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.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JASON D. WALLACE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
