[Cite as State v. Simonis, 2014-Ohio-5091.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-14-05

        v.

JAMES E. SIMONIS,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 13-CR-0149

                                      Judgment Affirmed

                          Date of Decision: November 17, 2014




APPEARANCES:

        Gene P. Murray for Appellant

        Derek W. DeVine for Appellee
Case No. 13-14-05


SHAW, J.

       {¶1} Defendant-appellant James E. Simonis (“Simonis”) appeals the

January 29, 2014 judgment of the Seneca County Common Pleas Court sentencing

Simonis to four years in prison after Simonis was found guilty in a jury trial of

Robbery in violation of R.C. 2911.02(A)(2).

       {¶2} The facts relevant to this appeal are as follows. On September 10,

2013, Simonis was indicted for one count of Robbery in violation of R.C.

2911.02(A)(2), a felony of the second degree. (Doc. 1). On September 26, 2013,

a Bill of Particulars was filed indicating that the charge stemmed from an August

21, 2013, incident wherein Simonis allegedly inflicted or attempted to inflict

physical harm on a Kroger employee while fleeing from a theft offense at Kroger.

(Doc. 11).

       {¶3} On October 8, 2013, Simonis was arraigned and pled not guilty to the

charge. (Doc. 14).

       {¶4} On December 3, 2013, Simonis filed a “Motion for Copy of Kroger

Stores’ Employee Policy of Stopping Persons in Cases of Suspected Thefts.”

(Doc. 26). In the motion Simonis contended that the evidence was discoverable

under Crim. R. 16(B)(5). (Id.)

      {¶5} On December 5, 2013, the State filed a response in opposition to

Simonis’s motion, arguing that the policy was not part of the State’s case-in-chief,


                                        -2-
Case No. 13-14-05


that it was not relevant or favorable to Simonis, that the State did not possess the

policy and that the State had no duty to provide the policy. (Doc. 28).

       {¶6} On December 12, 2013, the trial court filed an entry denying

Simonis’s motion for a copy of the employee policy reasoning that Simonis “has

the right to subpoena the requested information from the Kroger Store.” (Doc.

31). After the trial court’s ruling, Simonis filed a subpoena duces tecum addressed

to “Kroger’s Manager” requesting a copy of the store’s employee policy. (Doc.

30).

       {¶7} On December 13, 2013, the State filed a “Motion in Limine to exclude

evidence relating to Kroger Store Policy” arguing that the policy was irrelevant as

“[w]hether [the employee] followed store policy when he confronted [Simonis]

regarding the theft has nothing to do with the elements of the offense.” (Doc. 31).

       {¶8} On December 16, 2013, Kroger filed a “Motion to Quash Subpoena of

Non-Party Pursuant to Ohio Criminal Rule 17[.]” (Doc. 34). In the motion

Kroger argued that the subpoena was defective for not naming a person who was

supposed to respond to the subpoena, and that the policy was irrelevant as it only

governed Kroger’s employees and not its presumed customers. (Id.)

       {¶9} On December 16-17, 2013, the case proceeded to a jury trial. Prior to

the commencement of the trial, the court addressed Kroger’s motion to quash, the

subpoena duces tecum, and the State’s motion in limine. The trial court stated that


                                        -3-
Case No. 13-14-05


it wanted to see Kroger’s policy and review it in camera before ruling on the

motions. The court ultimately did receive the policy, reviewed it in camera, and

granted Kroger’s motion to quash. The trial court stated that the policy was not

relevant, and that the court’s ruling on the motion did not prevent Simonis from

subpoenaing witnesses from Kroger. (Tr. at 42). Based on the court’s ruling on

the motion to quash, the court determined that the State’s motion in limine was

rendered moot. An entry reflecting this ruling was filed December 17, 2013.

(Doc. 35).

       {¶10} Also prior to commencement of the trial, Simonis made a request for

a jury instruction on the lesser included offense of theft. The trial court stated at

that time it had not heard the evidence and would rule on the request after hearing

the evidence.

       {¶11} Simonis’s jury trial then commenced. The testimony and exhibits

introduced at trial indicated that Simonis went into Kroger at around 12:30 a.m.

and took a twelve pack of Corona Light and a twelve pack of Bud Light Lime

Straw-ber-itas without paying for them and walked out of the store. This was

witnessed by Diana Edinger, a night cashier at Kroger. Edinger testified that she

was the only cashier on duty at that time and that she called the police when

Simonis left the store without paying for the beer. (Tr. at 97).




                                         -4-
Case No. 13-14-05


       {¶12} Shawn Craig, a grocery clerk at Kroger, testified that he was “doing

tags” when he also witnessed Simonis take the beer without paying. (Tr. at 100-

101). Craig testified that he ran after Simonis as Simonis exited Kroger with the

beer. (Tr. at 101). Craig testified that as Simonis got into the parking lot, a white

Jeep SUV pulled up to the front of the Kroger and Simonis put the beer in the

front seat through an open window. (Tr. at 101). Craig testified that Simonis was

then trying to open the passenger side door when Craig caught up to Simonis. (Tr.

at 102). Craig testified that he shut Simonis’s door and then tried to grab the beer

through the open window. (Id.) Craig testified that Simonis then put an arm

around Craig’s neck and took him to the ground. (Tr. at 102). Craig testified that

as a result of being taken to the ground his “inner lip broke,” though he testified it

was “not serious.” (Tr. at 103).

       {¶13} Craig testified that after taking him to the ground, Simonis got up

and ran to the white Jeep. (Tr. at 103). Craig testified that he got a partial license

plate number as the Jeep drove off. (Id.)

       {¶14} During Craig’s testimony the State played surveillance video of

Simonis passing the point of sale in Kroger without paying for the beer in his

hands, and of Craig running after Simonis. (State’s Ex. 4). The surveillance video

shows Simonis taking Craig to the ground in the parking lot after Craig reached




                                         -5-
Case No. 13-14-05


the passenger side door of the white Jeep SUV, and it also shows Simonis getting

back into the Jeep. (State’s Ex. 4).

           {¶15} Two officers also testified at trial, Officer Evan Ely and Officer

Dennis.1 Officer Ely testified that he got a call from a dispatcher about an incident

at Kroger involving a white Jeep SUV. (Tr. at 87). Officer Ely testified that he

stopped a vehicle he suspected to have been involved in the incident and

recognized the driver from previous dealings. (Tr. at 88). Officer Ely testified

that he asked why the passenger, Simonis, was so sweaty and then called for

assistance and Officer Dennis responded. (Tr. at 90).

           {¶16} Officer Dennis testified that he responded to assist Officer Ely and

identified the passenger of the vehicle as Simonis, noticing that Simonis was

drenched in sweat. Officer Dennis made an in-court identification of Simonis.

(Tr. at 57). Officer Dennis testified that he looked into the vehicle and saw a

twelve pack of Corona Light on the floor of the passenger side of the vehicle, and

a twelve pack of Bud Light Lime Straw-ber-itas in the backseat behind the

passenger’s side. (Tr. at 57-58). Officer Dennis testified that he asked Simonis

where Simonis got the beer, and Simonis said he got the beer “from a guy.” (Tr. at

58). Simonis told Officer Dennis that he had not been to Kroger that night/early

morning. (Tr. at 60). Officer Dennis testified that he subsequently took Simonis



1
    Officer Dennis’s full name is never given in the transcript.

                                                        -6-
Case No. 13-14-05


back to Kroger to have employee Shawn Craig identify him, which he did. (Tr. at

60).

       {¶17} Officer Dennis testified that he thought he was initially investigating

a theft from Kroger, but learned while speaking with Craig that Simonis had put

Craig in a “headlock” and took him to the ground outside of the Kroger store when

Craig chased Simonis into the parking lot. (Tr. at 62). Officer Dennis testified

that Craig ended up with a split lip, or an abrasion on his lip, as a result of being

taken to the ground.      (Tr. at 74).   Officer Dennis further testified that he

photographed Craig’s split lip and that photograph was introduced into evidence.

(Tr. at 82).

       {¶18} At the conclusion of the State’s case, Simonis’s counsel made a

Criminal Rule 29 motion for acquittal, which was denied by the trial court.

Simonis’s counsel then requested that the court issue a lesser included offense

instruction on “Assault” in violation of R.C. 2903.13(A), and the court denied this

request. Simonis’s counsel subsequently stated that he misspoke and wanted a

lesser included offense instruction on theft in violation of R.C. 2913.02(A). The

court also denied that request.

       {¶19} The parties then proceeded to closing arguments. Afterward, the jury

was given instructions and the case was submitted to the jury. The jury found




                                         -7-
Case No. 13-14-05


Simonis guilty of Robbery in violation of R.C. 2911.02(A)(2), a felony of the

second degree.

           {¶20} A sentencing hearing was held January 28, 20142 and Simonis was

sentenced to four years in prison. A judgment entry reflecting this sentence was

filed January 29, 2014.

           {¶21} It is from this judgment that Simonis appeals, asserting the following

assignments of error for our review.

                       ASSIGNMENT OF ERROR 1
           THE TRIAL COURT ABUSED ITS DISCRETION BY
           DENYING THE DEFENDANT’S MOTION FOR A COPY OF
           THE KROGER STORE’S EMPLOYEE POLICY OF
           STOPPING PERSONS IN CASES OF SUSPECTED THEFTS;
           AND THE TRIAL COURT ALSO ABUSED ITS DISCRETION
           BY QUASHING THE DEFENDANT’S SUBPOENA DUCES
           TECUM FOR A COPY OF THE KROGER STORE’S
           EMPLOYEE POLICY OF STOPPING PERSONS IN CASES
           OF SUSPECTED THEFTS; AND AS A COROLLARY, THE
           TRIAL COURT SIMILARLY ABUSED ITS DISCRETION BY
           NOT ALLOWING THE DEFENSE TO READ AND REVIEW,
           TO WIT, TO DISCOVER, THE KROGER STORE’S
           EMPLOYEE POLICY OF STOPPING PERSONS IN CASES
           OF SUSPECTED THEFTS.

                       ASSIGNMENT OF ERROR 2
           THE TRIAL COURT ABUSED ITS DISCRETION BY
           DENYING THE DEFENDANT’S MOTION FOR A JURY
           INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF
           MISDEMEANOR THEFT, THEREBY RESULTING IN
           REVERSIBLE ERROR.




2
    No transcript of this hearing was provided.

                                                  -8-
Case No. 13-14-05


                   ASSIGNMENT OF ERROR 3
       THE JURY’S VERDICT OF GUILTY OF ROBBERY WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
       THEREBY RESULTING IN REVERSIBLE ERROR.

       {¶22} For the sake of clarity, we elect to address the assignments of error

out of the order in which they were raised.

                            Third Assignment of Error

       {¶23} In Simonis’s third assignment of error, he argues that his conviction

for Robbery was against the manifest weight of the evidence. An appellate court’s

function when reviewing the weight of the evidence is to determine whether the

greater amount of credible evidence supports the verdict. State v. Thompkins, 78

Ohio St.3d 380, 387 (1997). In doing so, this Court must review the entire record,

weigh the evidence and all of the reasonable inferences, consider the credibility of

witnesses, and determine whether in resolving conflicts in the evidence, the

factfinder “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.    Because reversals based upon the manifest weight are for

exceptional circumstances, as the Ohio Supreme Court held in Thompkins, Section

3(B)(3), Article IV of the Ohio Constitution mandates the unanimous concurrence

of all three judges on the reviewing panel to reverse a defendant’s conviction.

Thompkins at 389.



                                        -9-
Case No. 13-14-05


       {¶24} In this case Simonis was convicted of Robbery in violation of R.C.

2911.02(A)(2), which reads, “No person, in attempting or committing a theft

offense or in fleeing immediately after the attempt or offense, shall * * * [i]nflict,

attempt to inflict, or threaten to inflict physical harm on another[.]” (Emphasis

added.)

       {¶25} The evidence in this case is uncontroverted that Simonis committed a

theft offense at the Kroger store by taking the two twelve packs of beer. Both the

cashier, Edinger, and the grocery clerk, Craig, testified that they saw Simonis pass

the point of sale with the two twelve packs of beer without paying for them. The

surveillance video from Kroger, which was introduced by the State, corroborates

these witnesses’ testimony. In fact, while he did not put forth any evidence,

Simonis seemed to concede that there was a theft committed in his opening and

closing statements, and he does not challenge the theft element of Robbery in his

brief to this Court. (Tr. at 53); (Tr. at 167).

       {¶26} However, Simonis does challenge whether he inflicted or attempted

to inflict physical harm on Craig while fleeing from the theft offense. Simonis

contends that the pictures of Craig did not show physical harm occurred, and that

the video of the incident showed that Simonis was punched in the face by Craig

and thus Simonis was not the aggressor.




                                          -10-
Case No. 13-14-05


      {¶27} Despite Simonis’s arguments, Craig testified that his lip was split as

Simonis took him to the ground. Officer Dennis testified that he saw the abrasion

and that he photographed it. Officer Dennis also testified that the picture did not

do justice to what he saw in person.          “Physical harm” is defined in R.C.

2901.01(A)(3) as “any injury * * * regardless of its gravity or duration.”

(Emphasis added.) While Craig’s injury may not have been severe, as he himself

testified, there was clearly testimony indicating from Craig and Officer Dennis

that Craig had an abrasion and a split lip as a result of Simonis taking him to the

ground.

      {¶28} Moreover, not only does the evidence support a finding of physical

harm, however slight, a jury could certainly conclude based on the fact that

Simonis wrapped his arm around Craig’s neck and pulled him to the ground that

Simonis attempted to cause physical harm to Craig, which would also satisfy the

elements of Robbery under R.C. 2911.02(A)(2).

      {¶29} Furthermore, we would note that there is no indication from the

video that Craig ever punched Simonis or that Craig initiated physical contact with

Simonis as Simonis suggests on appeal. The video supports Craig’s testimony that

Craig shut Simonis’s door and then Simonis wrapped an arm around Craig’s neck

and took him to the ground. In addition to the video evidence, Craig specifically




                                       -11-
Case No. 13-14-05


testified that he never struck Simonis. Thus Simonis’s argument on this issue is

not well-taken.

       {¶30} Accordingly we cannot find that under the facts and circumstances of

this case that the jury clearly lost its way in finding Simonis guilty of Robbery.

Therefore Simonis’s third assignment of error is overruled.

                            Second Assignment of Error

       {¶31} In Simonis’s second assignment of error, he argues that the trial court

erred by denying his request for a jury instruction on the lesser included offense of

theft. “When reviewing a court's refusal to give a requested jury instruction, an

appellate court considers whether the trial court’s refusal to give said instruction

was an abuse of discretion under the facts and circumstances of the case.” State v.

Kunz, 6th Dist. Wood No. WD-10-047, 2011-Ohio-3115, ¶ 30, citing State v.

Wolons, 44 Ohio St.3d 64, 68 (1989).

       {¶32} It is not disputed that theft is a lesser included offense of robbery.

State v. Smith, 117 Ohio St.3d 447, 2008–Ohio–1260, paragraph two of the

syllabus. However, the mere fact that an offense is a lesser included offense of the

charged offense does not mean that the trial court must instruct on both offenses.

State v. Keith, 10th Dist. Franklin No. 08AP–28, 2008–Ohio–6122, ¶ 35, citing

State v. Wilkins, 64 Ohio St.2d 382, 387 (1980). A party is not entitled to an

instruction on a lesser included offense unless the evidence presented at trial


                                        -12-
Case No. 13-14-05


would reasonably support both an acquittal on the crime charged and a conviction

on the lesser included offense. State v. Trimble, 122 Ohio St.3d 297, 2009–Ohio–

2961, ¶ 192.

       {¶33} The lesser-included-offense instruction is not warranted every time

“some evidence” is presented to support the lesser offense. Trimble at ¶ 192 citing

State v. Shane, 63 Ohio St.3d 630, 632 (1992). “Rather, a court must find

‘sufficient evidence’ to ‘allow a jury to reasonably reject the greater offense and

find the defendant guilty on a lesser included (or inferior degree) offense.’ ”

(Emphasis sic.) Trimble at ¶ 192 quoting Shane at 632–633. In making this

determination, the court must view the evidence in the light most favorable to the

defendant. Trimble at ¶ 192; State v. Timmons, 10th Dist. Franklin No. 13AP-

1038, 2014-Ohio-3520, ¶ 37.

       {¶34} In this case, Simonis first requested a jury instruction on the lesser

included offense of theft prior to the commencement of the trial. At that time the

trial court stated, “I can’t talk about lesser included until I hear the evidence. * * *

But at the appropriate time, [defense counsel], we will.” (Tr. at 7). Simonis’s

counsel renewed his request for a lesser included offense instruction at the close of

evidence, before closing arguments and final instructions were given to the jury.

At that time, the following conversation was had between the trial court and the

parties.


                                         -13-
Case No. 13-14-05


      [SIMONIS’S COUNSEL]: I move, Your Honor, that we would
      respectfully ask for jury instructions for a lesser included to the
      offense of assault under 29.0213A, [sic] a misdemeanor of the
      first degree.

      THE COURT: Okay.           Thank you.    And [prosecutor], your
      argument on assault.

      [PROSECUTOR]:           Your Honor, we would oppose that
      instruction, the robbery charge that has been indicted in this
      case encompasses that the theft and the assault are what makes
      it a robbery in this case, so we see no need for a lesser included
      instruction on assault in this case and we would ask the Court
      not to instruct assault. Thank you.

      THE COURT: And the Court perhaps could be persuaded on
      that argument by the defendant if it found no concurrence in
      this case, and the concurrence is the act of inflicting or
      attempting to inflict physical harm that must occur during or
      immediately after the theft offense. And the testimony and the
      DVD of the video surveillance clearly indicates to this Court that
      any act of inflicting or attempting to inflict physical harm did
      occur during or immediately after the theft offense. And
      therefore, Mr. Murray’s request for lesser included offense of
      assault is denied based upon the evidence before this Court.

      ***

      THE COURT: Very fine. Thank you. That being completed,
      we’re ready to bring in the jury at this time for the final jury
      instruction and the closing arguments.

      [SIMONIS’S COUNSEL]: I’m sorry, Your Honor, I misspoke
      that wouldn’t be assault but theft, Your Honor, if I may correct
      that on the record.

      THE COURT: In either case it’s the same ruling that I’m going
      to deny your request.



                                     -14-
Case No. 13-14-05


       [SIMONIS’S COUNSEL]: That would be theft under 2913A2,
       A1. [sic]

(Tr. at 136-138).

       {¶35} On appeal, Simonis argues that the trial court should have given the

lesser-included offense instruction on theft. Simonis contends that the jury could

have reasonably found him guilty of theft but not guilty of physically harming the

victim, Craig. Simonis contends that Craig was the aggressor and that Simonis

made “no attempt to cause any physical harm, but simply [tried] to get away from

[Craig].” (Appt’s Br. at 14).

       {¶36} Despite Simonis’s arguments, the evidence presented on the issue of

physical harm or an attempt to cause physical harm at trial was clear. The Kroger

surveillance video clearly showed Simonis taking Craig to the ground. Craig

testified that he had a split-lip as a result and Officer Dennis testified that he saw

the abrasion and photographed it, but that the photograph did not do a good job

showing the abrasion. While the physical harm may not have been severe, it was

not required to be to sustain a conviction. In addition, Simonis taking Craig to the

ground was strongly indicative of an attempt to cause physical harm.

       {¶37} Simonis produced no evidence to controvert the testimony of Craig

and Officer Dennis that physical harm occurred. Rather, he merely argued that the

photograph of Craig did not show a split lip and that Craig did not originally write

down the harm on the first page of his police report. Under these particular facts

                                        -15-
Case No. 13-14-05


and circumstances we cannot find that the trial court abused its discretion in

determining that there was not sufficient evidence for a jury to reasonably reject

the greater offense in this instance. Accordingly, Simonis’s second assignment of

error is overruled.

                             First Assignment of Error

       {¶38} In Simonis’s first assignment of error, he argues that the trial court

erred by granting Kroger’s motion to quash Simonis’s subpoena duces tecum for a

copy of Kroger’s employee policy regarding stopping people in cases of suspected

thefts. Specifically, Simonis contends that the contents of the policy were relevant,

and that the policy was not otherwise procurable, that the evidence was favorable

to Simonis, and that the trial court did not hold an evidentiary hearing to decide

the motion to quash.

       {¶39} A subpoena may be used to command a person to produce in court

books, papers, documents, and other objects. Crim.R. 17(C). However, the trial

court upon motion of a party may quash or modify the subpoena if compliance

would be unreasonable or oppressive. Id. An appellate court applies an abuse of

discretion standard when reviewing a trial court’s decision to quash a subpoena.

State v. Blair, 3d Dist. Marion No. 9–12–14, 2013–Ohio–646, ¶ 44, citations

omitted; State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735.




                                        -16-
Case No. 13-14-05


       {¶40} In this case Simonis contends that the Kroger store policy was

relevant and would have aided his defense. The trial court reviewed Kroger’s

policy in camera and found the policy to be irrelevant. The policy is not included

in the record before this court. However, even assuming that the policy stated

Craig should not have followed Simonis out of the store, the policy does not

govern or control Simonis’s conduct. Any policy in place at Kroger that governs

Kroger employees would not constitute a legal defense to the offense of Robbery

under R.C. 2911.02(A)(2) as a matter of law. The Kroger’s employee was the

victim in this case and any protocol that he breached with Kroger in following

Simonis out of the store has no bearing on Simonis’s culpability for taking the

beer and then taking Simonis to the ground in order to flee from his theft offense.

Thus we fail to see how the Kroger policy could be at all relevant to Simonis’s

defense. As a result, we cannot find that the trial court abused its discretion in

granting Kroger’s motion to quash. Therefore, Simonis’s first assignment of error

is overruled.

       {¶41} For the foregoing reasons Simonis’s assignments of error are

overruled and the judgment of the Seneca County Common Pleas Court is

affirmed.

                                                              Judgment Affirmed

ROGERS and PRESTON, J.J., concur.
/jlr

                                       -17-
