[Cite as State v. Powell, 2018-Ohio-4693.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27951
                                                   :
 v.                                                :   Trial Court Case No. 2017-CR-0887
                                                   :
 RODNEY POWELL                                     :   (Criminal Appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 21st day of November, 2018.

                                              ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
    Attorney for Defendant-Appellant

                                             .............
                                                                                         -2-


FROELICH, J.

       {¶ 1} Rodney Powell was convicted after a jury trial in the Montgomery County

Court of Common Pleas of robbery, a second-degree felony, and domestic violence, a

first-degree misdemeanor.       The trial court sentenced him to up to five years of

community control.

       {¶ 2} Powell appeals from his convictions, claiming that his conviction for robbery

was based on insufficient evidence and against the manifest weight of the evidence, that

the trial court should have instructed the jury on the lesser included offense of theft, and

that cumulative errors denied him a fair trial. For the following reasons, the trial court’s

judgment will be affirmed.

                             I. Factual and Procedural History

       {¶ 3} The State’s witnesses at trial consisted of the complainant, Heather Kurtz,

her brother, Richard (whom she called “Brother”), and Dayton Police Officer Zach Banks.

Their testimony and supporting exhibits established the following facts.

       {¶ 4} Powell and Heather Kurtz were in a relationship for more than ten years, and

they have a son together. While they were together, they resided in the Kurtz family’s

home with Kurtz’s father and brother. According to Kurtz, Powell moved many of his

belongings out of Kurtz’s home around April 2016. After that time, Kurtz usually would

take their son to school, and Powell would pick the son up from school and take him back

to Kurtz’s residence; Powell left the residence before Kurtz got home from work.

       {¶ 5} On March 21, 2017, Kurtz went to a doctor appointment and then went to

work, which began at 10:30 a.m. Powell took their son to school, and he and Kurtz texted

several times during the day.      In the afternoon, Powell showed up unexpectedly at
                                                                                       -3-


Kurtz’s place of employment. The two talked for a few minutes, and Powell left; Kurtz

stated that Powell “was just acting really weird. I could tell he’d been drinking.”

       {¶ 6} Kurtz returned home from work at approximately 7:00 p.m. and found Powell

sitting on her porch, talking on his cell phone. Kurtz went inside and then upstairs to

check on her son; she found the son asleep in a room off of her bedroom. Powell

followed Kurtz inside and asked Brother, who was in the dining room, where Kurtz had

gone; Brother responded, “Upstairs.” When Kurtz turned to leave her bedroom, she

found Powell standing in the doorway. Kurtz asked Powell what he was doing there, and

Powell responded, “It’s really over, isn’t it?” Kurtz accused Powell of being drunk and

told him to leave. Powell did not leave, so Kurtz gathered her purse, coat, cell phone,

and keys, told Powell that she was leaving instead, and headed downstairs.

       {¶ 7} Powell followed Kurtz and told her that he would leave, but once downstairs,

Powell walked around Kurtz and sat in a chair in the living room. Powell accused Kurtz

of cheating on him. Kurtz again said that she was leaving, and she called to Brother,

who was now in the kitchen, that she would be back in a few minutes.

       {¶ 8} Kurtz walked out of the house to her minivan. As she was preparing to grab

the van’s door handle, she sensed someone behind her and began to turn. Powell, who

had followed her outside, grabbed the back of her head and started “slamming” her head

into the back window of the van. With his other hand in a fist, Powell also punched Kurtz.

Powell said to Kurtz repeatedly, “I know what you did.”

       {¶ 9} After slamming Kurtz’s head against the van window numerous times, Powell

pushed Kurtz onto the street. Kurtz landed on her elbows, with her back toward the

ground. Powell “snatched” Kurtz’s cell phone from her hand and told her that he was
                                                                                        -4-


going to “find out who it is.”     Powell then hit Kurtz with the phone and his fist

approximately 10 to 15 times.

        {¶ 10} Brother heard Kurtz yelling and looked out the door to see what was

happening.    Brother saw his sister on the ground and Powell hitting her head and

punching her with his fist.   Brother went outside and yelled at Powell.       Powell and

Brother tried to hit each other, but both slipped on the wet ground and fell. Brother saw

Powell holding Kurtz’s cell phone. Brother got up and ran to a neighbor’s house to seek

help. Kurtz got up from the ground and ran back to her house; Powell followed her inside.

Powell grabbed something from the living room, exited the residence, and left in his truck.

Powell still had Kurtz’s cell phone in his hand when he left. Kurtz called the police from

the house phone. That evening, Powell attempted to call Kurtz on her house phone

several times.

        {¶ 11} Officer Banks responded to the 911 call and spoke with Kurtz on her front

porch. He noticed redness or a scrape on the right side of her forehead. Banks saw

that Kurtz had her house phone with her; the officer did not see a cell phone in the front

yard.

        {¶ 12} Kurtz testified that she was in “severe” pain that night and her hand hurt.

Kurtz went to urgent care the following day. The police took photographs of various

bruises. Kurtz contacted Sprint to suspend service on her cell phone so that Powell

could not use it, and she reported the cell phone stolen to her insurance company. Kurtz

testified that her cell phone had an “almost neon green” case on it.

        {¶ 13} At the end of the State’s case, Powell made a Crim.R. 29 motion regarding

the robbery charge, arguing that there was no evidence that Powell had left with Kurtz’s
                                                                                        -5-


phone. The trial court denied the motion.

      {¶ 14} Powell testified on his own behalf and presented four additional witnesses.

His aunt testified that Powell came to her house at approximately 8:00 p.m. on March 21,

2017, which was after the altercation. She saw Powell with his cell phone, which she

recognized, and did not see him with any other cell phone. The aunt testified that Powell

had a royal blue case on his phone.

      {¶ 15} Eric Copher, a long-time friend of Powell’s, testified that Powell called him,

upset, in the evening of March 21, 2017; Powell asked Copher to pick him up from his

aunt’s house.   Copher and his cousin, Derrick, picked up Powell and drove to the

residence of Jerrell Brown, Powell’s brother, arriving around 8:15 p.m. The four men

were together until approximately 10:00 p.m. Powell told them that he and Kurtz had

“got into it,” which Copher understood as an argument, not an altercation.          Brown

testified that Powell had said that he (Powell) and Kurtz had an argument about Powell’s

catching her cheating and that Powell “shook her up.” Copher and Brown saw Powell

with his cell phone, but not with another cell phone. Brown testified that Powell had a

“kinda dark” blue case on his phone.

      {¶ 16} Powell testified that he had been living with Kurtz on March 21, 2017.

Powell stated that Kurtz took their son to school that day. At approximately 8:30 a.m.,

Powell received a phone call from a friend, who told Powell that he (the friend) had seen

Kurtz getting into someone else’s car. Powell drove down to where Kurtz’s car was

parked and took a photograph of her van. Powell texted Kurtz and asked if she had

gotten to work on time; Kurtz responded that she “had barely made it.” Shortly before

10:30 a.m., Powell went to watch Kurtz’s parked car. He testified that he saw Kurtz get
                                                                                        -6-


out of someone’s car, get into her own car, and drive away. Powell and Kurtz texted

throughout the day while Kurtz was at work, as was their routine.

      {¶ 17} Powell stated that he picked up his son from school and brought him home.

Powell indicated that he was recently home from the grocery store, was on the phone,

and was leaving the house to go back to the store when Kurtz came home from work.

He stated that Kurtz went upstairs and changed her clothes. A few minutes later, he

went upstairs to the bedroom with his cell phone in his hand. Powell showed Kurtz the

photograph of her van and asked her if she wanted to explain what was going on and if

their relationship was over. Powell stated that Kurtz refused to talk about it and started

to leave. Powell responded to her that he would leave, but he needed to know what was

going on because he would need to get his belongings out of the house.

      {¶ 18} Powell stated that the argument continued as they went out of the house to

Kurtz’s van. Powell testified that he “just grabbed [Kurtz] by her coat, turned her around,

* * * grabbed her other shoulder and * * * started shaking her.” Powell stated that Kurtz

“flopped” to the ground and started yelling. Powell denied that he had slammed Kurtz’s

head against the van’s window or punched her in the face.

      {¶ 19} Powell testified that he heard Brother yelling at him; Powell turned, swung

at Brother, and fell down. Powell explained that Brother ducked and fell down, and he

(Powell) fell down from swinging. Powell testified that he picked up his cell phone, which

he had dropped when he fell, and left in his truck. Powell testified that he and Kurtz had

the same kind of cell phones and that his phone had a blue case. Powell denied that he

had taken Kurtz’s phone. He noted that he had texted Kurtz’s cell phone once around

11:00 a.m. the following morning, which was reflected in Kurtz’s cell phone records.
                                                                                           -7-


       {¶ 20} After closing arguments, the trial court, without objection, instructed the jury

on robbery and domestic violence. After deliberations, the jury convicted Powell of both

offenses. The court subsequently sentenced Powell to community control sanctions.

                 II. Sufficiency and Manifest Weight of the Evidence

       {¶ 21} We will address Powell’s first, second, and third assignments of error

together. They claim that his conviction for robbery was based on insufficient evidence

(first assignment), that his conviction for robbery was against the manifest weight of the

evidence (second assignment), and that the trial court erred in denying his Crim.R. 29

motion for acquittal on the robbery charge at the conclusion of the State’s case (third

assignment).

       {¶ 22} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court

applies the same standard as is used to review a claim based on the sufficiency of the

evidence. State v. Page, 2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 7, citing

State v. Sheppeard, 2d Dist. Clark No. 2012 CA 27, 2013-Ohio-812, ¶ 51. “A sufficiency

of the evidence argument disputes whether the State has presented adequate evidence

on each element of the offense to allow the case to go to the jury or sustain the verdict

as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525,

¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The

relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light

most favorable to the State, could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096

(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could

not reach the conclusion reached by the trier-of-fact.” Id. In reviewing the trial court’s
                                                                                          -8-


denial of a Crim.R. 29(A) motion at the end of the State’s case, we consider only the

evidence then available to the trial court. Sheppeard at ¶ 51.

       {¶ 23} In contrast, when reviewing an argument challenging the weight of the

evidence, an appellate court reviews the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses, and determines whether, in

resolving conflicts in the evidence, the finder 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. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

       {¶ 24} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at

¶ 14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

       {¶ 25} As an initial matter, the State asserts that Powell has waived his sufficiency

argument by failing to renew his Crim.R. 29 motion after all evidence had been presented

at trial. In support of this argument, the State cites State v. Edwards, 3d Dist. Marion No.

9-03-63, 2004-Ohio-4015, which states that, “[i]n order to preserve a sufficiency of the

evidence challenge on appeal once a defendant elects to present evidence on his behalf,

the defendant must renew his Crim.R. 29 motion at the close of all the evidence.” Id. at

¶ 6, citing Helmick v. Republic-Franklin Ins. Co., 39 Ohio St.3d 71, 529 N.E.2d 464 (1988),
                                                                                        -9-


paragraph one of the syllabus. The State thus claims that, at most, we can review

Powell’s sufficiency argument only for plain error.

       {¶ 26} We have expressly rejected the contention that a defendant must make a

Crim.R. 29 motion at trial in order to challenge on appeal the sufficiency of the State’s

evidence regarding the elements of the offense of which the defendant was convicted.

State v. Short, 2017-Ohio-7200, __ N.E.3d __, ¶ 23-26 (2d Dist.). Although this court

had previously espoused that a Crim.R. 29 motion was required to raise a sufficiency

argument on appeal, we noted in Short that the Ohio Supreme Court had since stated

that the failure to file a Crim.R. 29(A) motion during a trial does not waive an appellate

argument concerning the sufficiency of the evidence. Short at ¶ 24, citing State v. Jones,

91 Ohio St.3d 335, 346, 744 N.E.2d 1163 (2001), and State v. Carter, 64 Ohio St.3d 218,

223, 594 N.E.2d 595 (1992). We have also repeatedly recognized that, “[e]ven where

no Crim.R. 29 motion was made in the trial court, * * * ‘a defendant’s “not guilty” plea

preserves the right to object to an alleged insufficiency of evidence.’ ” State v. Erby, 2d

Dist. Montgomery No. 27799, 2018-Ohio-3695, ¶ 17, quoting State v. Hill, 2d Dist.

Montgomery No. 25274, 2013-Ohio-2016, ¶ 28. See also, e.g., Short at ¶ 24; State v.

Osterfeld, 2d Dist. Montgomery No. 20677, 2005-Ohio-3180, ¶ 8, citing Jones and Carter.

       {¶ 27} Powell was convicted of robbery in violation of R.C. 2911.02(A)(2). That

statute provides: “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[.]”

       {¶ 28} Viewing the State’s evidence in the light most favorable to the State, the

jury could have reasonably found that Powell committed the offense of robbery. First,
                                                                                          -10-


the State presented sufficient evidence that Powell committed a theft offense. Kurtz

testified that she carried her cell phone to the van, and that Powell forcibly took the cell

phone from her hand after he pushed her to the ground. She indicated that Powell had

said that he was going to “find out who it is.” Kurtz further testified that Powell still had

her cell phone in his hand when he swung at Brother, when he went back into the house

after the assault, and when he left the residence in his truck. Kurtz testified, “Once he

initially took it from me – that’s the thing. I never got it back. He kept it.” Brother also

saw Powell with Kurtz’s cell phone after the altercation.

       {¶ 29} Kurtz’s and Brother’s testimony was supported by the fact that, shortly after

the altercation, Powell tried to call Kurtz on the home telephone, not her cell phone. Cell

phone records for Kurtz’s cell phone displayed no incoming calls from Powell to Kurtz’s

cell phone on March 21, 2017 after the incident occurred and no outgoing calls or texts

by Kurtz. (Powell and Kurtz had texted each other more than 60 times that day prior to

the incident.) Powell further testified that she reported her phone as stolen and had her

service suspended. The jury could have reasonably concluded that Powell took Kurtz’s

cell phone with the purpose to deprive her of that phone.

       {¶ 30} Second, the State presented ample evidence that Powell inflicted physical

harm in committing the theft offense. Powell claims that the only force involved in the

alleged robbery was his snatching the cell phone out of Kurtz’s hand. However, Kurtz

testified that Powell banged her head against a van window numerous times, forced her

to the ground, took her cell phone from her hand, and began to hit her with the phone and

his fist. Kurtz testified that she had pain in her elbows and hand, and she had bruises

and red marks from the assault. Kurtz complained of “severe” pain and went to urgent
                                                                                      -11-


care the following day. Although Powell suggests that the violence involved with the

domestic violence “had no nexus to the alleged theft” of the cell phone, the jury could

have reasonably concluded that Powell’s actions in banging Kurtz’s head against the van,

hitting her with her cell phone, and punching her with his fist occurred as part of the

commission of the theft of the cell phone.

       {¶ 31} Given the State’s evidence, the trial court did not err in denying Powell’s

Crim.R. 29(A) motion on the robbery charge, and Powell’s conviction for robbery was

based on sufficient evidence.

       {¶ 32} As for Powell’s manifest-weight argument, the jury was free to believe all,

part, or none of the testimony of each witness and to draw reasonable inferences from

the evidence presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-

3163, ¶ 28. It was the province of the jury to weigh the evidence and determine whether

the State had proven, beyond a reasonable doubt, that Powell had committed the charged

offenses.

       {¶ 33} Powell testified that he did not take Kurtz’s cell phone, and his witnesses

testified that they did not see Powell with Kurtz’s cell phone. There was also evidence

that Powell sent a text to Kurtz’s cell phone number on March 22, 2017, the day after the

incident.   Nevertheless, the jury could have reasonably concluded that Powell’s

witnesses, who saw him after the incident in a different location, had no knowledge about

whether Powell had taken Kurtz’s cell phone. Moreover, the jury could have reasonably

found, as argued by the State during closing arguments, that Kurtz’s cell phone records

for March 21, 2017, demonstrated that Kurtz no longer had her cell phone after the

altercation with Powell and that Powell had the cell phone, as evidenced by the fact that
                                                                                          -12-


he called Kurtz’s house phone rather than her cell phone. The jury was not required to

accept Powell’s denial of any theft based solely on the fact that he once texted her the

following day. In summary, we cannot conclude that the jury lost its way in crediting the

State’s version of events and finding Powell guilty of robbery and domestic violence.

Powell’s conviction for robbery was not against the manifest weight of the evidence.

       {¶ 34} Powell’s first, second, and third assignments of error are overruled.

                    III. Jury Instruction on Lesser Included Offense

       {¶ 35} In his fourth assignment of error, Powell claims that the trial court erred in

failing to give a jury instruction on the lesser included offense of theft.

       {¶ 36} Powell did not request a jury instruction on theft or object to the instructions

that were given. Accordingly, Powell has forfeited all but plain error with respect to the

jury instructions. In order to constitute plain error, the error must be an obvious defect in

the trial proceedings, and the error must have affected Powell’s substantial rights. State

v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). Plain

error should be noticed “with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus; State v. Singleton, 2d Dist.

Montgomery No. 26889, 2016-Ohio-5443, ¶ 45.

       {¶ 37} “An offense may be a lesser included offense of another if (i) the offense

carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily

defined, * * * be committed without the lesser offense, as statutorily defined, also being

committed; and (iii) some element of the greater offense is not required to prove the

commission of the lesser offense.” State v. Deem, 40 Ohio St.3d 205, 206, 533 N.E.2d
                                                                                           -13-

294 (1988), paragraph three of the syllabus, as modified by State v. Evans, 122 Ohio

St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 26; State v. Callahan, 2d Dist.

Montgomery No. 24595, 2012-Ohio-1092, ¶ 31.

       {¶ 38} “If the evidence is such that a jury could reasonably find the defendant not

guilty of the charged offense, but could convict the defendant of the lesser included

offense, then the judge should instruct the jury on the lesser offense.” Shaker Hts. v.

Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11, citing State v.

Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992); State v. Trimble, 122 Ohio St.3d 297,

2009-Ohio-2961, 911 N.E.2d 242, ¶ 192. In deciding whether to instruct the jury on a

lesser included offense, the trial court must view the evidence in a light most favorable to

the defendant.     Trimble at ¶ 192.        “The lesser-included-offense instruction is not

warranted every time ‘some evidence’ is presented to support the lesser offense. * * *

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.) Id., quoting Shane at 632-633.

       {¶ 39} In State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633 (2d Dist.), the trial court

denied a defendant’s request for a jury instruction on theft during his jury trial for robbery.

In denying the request, the trial court noted that the entire incident occurred on an RTA

bus and involved a continuous interaction, where the defendant took the victim’s e-

cigarette and refused to return it; only a few minutes elapsed from the defendant’s

obtaining the e-cigarette and the assault on the victim. Id. at ¶ 62. Throughout that

time, the defendant continued to exercise control over the e-cigarette and the victim

repeatedly demanded its return.       Id.   The trial court concluded that the infliction of
                                                                                            -14-


physical harm was contemporaneous with the theft and was “intricately connected to the

theft and that enable[d] the theft to be successfully accomplished.” Id. We found no

abuse of discretion in the trial court’s decision, concluding that the trial court reasonably

concluded that the facts did not warrant an instruction on the lesser included offense of

theft. Id. at ¶ 63.

       {¶ 40} Upon review of the law and the evidence before us, we find no error, plain

or otherwise, in the trial court’s failure to instruct the jury on the lesser included offense

of theft in this case. Powell seized Kurtz’s cell phone from her hand while he was

assaulting her. As in Frazier, the infliction of physical harm was contemporaneous with

the theft and enabled the theft to be successfully accomplished. Although Powell’s

underlying motivation behind the assault may have been his anger at Kurtz, rather than

a means to effectuate the theft, motive is not an element of the offense; Powell cannot

divorce his repeated assaultive behavior from his taking Kurtz’s cell phone from her hand.

       {¶ 41} Powell’s fourth assignment of error is overruled.

                                    IV. Cumulative Error

       {¶ 42} In his fifth assignment of error, Powell claims that “other errors were

committed at trial not raised herein but apparent on the record and the cumulative effect

of all the errors occurring at trial deprived appellant of a fair trial and due process.”

       {¶ 43} The cumulative error doctrine provides that a conviction may be reversed

“where the cumulative effect of errors in a trial deprives a defendant of the constitutional

right to a fair trial[,] even though each of numerous instances of trial court error does not

individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656

N.E.2d 623 (1995); see State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-
                                                                                    -15-


8366, ¶ 129.      Powell has raised only one possible error, namely the lack of a jury

instruction on theft, and we have concluded that no error occurred. In the absence of a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), it is not the role of an appellate court to independently review the record for

additional potential errors that were not raised by counsel. Consequently, Powell has

not demonstrated that multiple errors occurred. Under these circumstances, the doctrine

of cumulative error does not apply. See Moody at ¶ 129, citing Garner at 64.

      {¶ 44} Powell’s fifth assignment of error is overruled.

                                     V. Conclusion

      {¶ 45} The trial court’s judgment will be affirmed.

                                     .............



DONOVAN, J. and TUCKER, J., concur.


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Mathias H. Heck
Heather N. Jans
Carlo C. McGinnis
Hon. Michael W. Krumholtz
