[Cite as State v. Berry, 2015-Ohio-4320.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :     OPINION

                 Plaintiff-Appellee,             :
                                                       CASE NO. 2015-A-0005
        - vs -                                   :

AARON A. BERRY,                                  :

                 Defendant-Appellant.            :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00308.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Edward M. Heindel, 450 Standard Building, 1370 Ontario Street, Cleveland, OH 44113
(For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Aaron A. Berry, appeals from the judgment of conviction,

entered after a trial by jury, by the Ashtabula County Court of Common Pleas, on one

count of robbery. We affirm the judgment of the trial court.

        {¶2}     On June 26, 2014, appellant was charged with two counts of robbery, in

violation of R.C. 2911.02(A)(2), felonies of the second degree. Appellant pleaded not

guilty and the matter proceeded to jury trial.
        {¶3}   The following facts were adduced at trial: On May 13, 2014, Anthony

Sposito, a loss prevention associate at K-Mart in Ashtabula Township was observing

customers with the store’s camera system when he noticed a male behaving

suspiciously in the health and beauty department. The male was surveying the area

when he selected a box of Claritin-D from the shelf and concealed it in his pants. He

walked into and browsed the shoe section before leaving the store through the mall exit.

The male was identified by Sposito as appellant.

        {¶4}   Sposito paged Jacob Lovejoy, a co-worker, to assist him in confronting

appellant. When the two men initiated contact, Sposito identified himself and explained

what he observed on camera. Appellant denied selecting and concealing the pills and

became aggressive and confrontational. Sposito asked appellant to return to the store,

but appellant declined, still denying the allegation.

        {¶5}   Sposito, who had not touched appellant, remained in front of appellant.

Appellant, in an attempt to bypass Sposito spun and delivered an elbow to Lovejoy’s

face.   Both Sposito and Lovejoy testified the elbow strike was “no accident.” After

striking Lovejoy, Sposito took appellant to the ground and asked Lovejoy to assist him

because he believed appellant was a threat to their safety.           During the struggle,

appellant struck Sposito a “couple times in the face” with his elbow. Appellant also

struck Lovejoy several additional times.          Eventually, Sposito and Lovejoy allowed

appellant off the ground and appellant fled east through the mall.

        {¶6}   Sposito   immediately     contacted      the   Ashtabula   County   Sheriff’s

Department. While speaking to the dispatcher, Sposito stepped outside and observed

appellant running through a parking lot near an abandoned building, south of the mall.




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He observed appellant climb a hill at the west end of that building, but then lost sight of

him. Sposito gave dispatch a description of appellant along with his last known location.

       {¶7}    Deputy Evan Wolff of the Ashtabula County Sheriff’s Department arrived

at the scene approximately five minutes after being dispatched.            The deputy was

approached by a civilian who advised him that an individual matching appellant’s

description had entered a Rent One store near the mall.              When he entered the

business, he observed appellant sitting at a table. The deputy identified himself and

asked appellant to stand. Appellant did not look at Deputy Wolff and did not stand.

Appellant was subsequently detained and Mirandized. Appellant advised the deputy he

had been assaulted by K-Mart employees and explained he did not take anything from

the store.

       {¶8}    Deputy Wolff brought appellant back to K-Mart.         He asked Sposito to

recount what occurred. Sposito provided a statement, but appellant continued to deny

the theft as well as striking Sposito and Lovejoy. Deputy Wolff viewed the surveillance

video of the theft and also reviewed a video of the physical confrontation. After viewing

the video, appellant admitted to the theft, but denied facilitating the physical

confrontation.     Instead, he claimed he was assaulted and was merely defending

himself.     Appellant was arrested based upon the video and the statements of the

victims.

       {¶9}    At trial, appellant admitted to the theft. He testified that, after leaving the

store, he was approached by Sposito. When he attempted to leave, appellant claimed

Sposito put his hand on his chest and pushed him. He asserted he never pushed either




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of the K-Mart employees; instead, he claimed Sposito picked him up off the ground and

Lovejoy grabbed him by the throat. Appellant testified he was not trying to hurt anyone.

       {¶10} After trial, the jury found appellant guilty on count one of the lesser

included offense of felony-three robbery, in violation of R.C. 2911.02(A)(3), but not guilty

of the other lesser included offense of theft. On count two, the jury found appellant not

guilty of felony-two robbery, and not guilty of the lesser included offense of felony-three

robbery; the jury, however, found appellant guilty of misdemeanor-one theft, in violation

of R.C. 2913.02(A)(1). The court merged the theft offense with the robbery and the

state elected to proceed to sentencing on the robbery count. Appellant was sentenced

to 18-months imprisonment for robbery. Appellant now appeals assigning three errors

for this court’s review. His first assignment of error provides:

       {¶11} “The conviction for robbery, in violation of R.C. 2911.02(A)(3) was against

the manifest weight of the evidence and not supported by sufficient evidence.”

       {¶12} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence relating to each element of the charged offense.

State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper

inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury

could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Troisi 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9 (11th Dist.).

       {¶13} In contrast, a court reviewing the manifest weight observes the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses and determines whether, in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction




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must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-

082, 1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23, 1994).

       {¶14} Under this assignment of error, appellant first asserts the jury lost its way

in convicting him of robbery when it found he was not guilty of the lesser included

offense of theft on the same count. Appellant claims these verdicts are inconsistent

and, due to this apparent inconsistency, they are against the weight of the evidence.

We do not agree.

       {¶15} The jury, in this matter, found appellant guilty of robbery, a felony of the

third degree, and petty theft, a first degree misdemeanor. It found him not guilty of the

following: two counts of felony-two robbery, one count of felony-three robbery, and

another M-1 petty theft. Contrary to appellant’s assertion, therefore, the jury found him

guilty of both robbery and petty theft.     While the jury did acquit appellant of the

remaining petty theft count, this simply suggests that, given the facts of the case, it was

not disposed to hold appellant accountable merely for petty theft on each count. This,

however, does not constitute reversible error.

       {¶16} “[T]he sanctity of a jury verdict should be preserved despite potential

inconsistencies.” State v. Brown, 11th Dist. Lake No. 2014-L-032, 2015-Ohio-950, ¶55,

citing Dunn v. United States, 284 U.S. 390, 393 (1932).      The facts in this case could

have supported felony-three robbery convictions committed against both victims. The

jury, however, through apparent lenity, determined appellant’s conduct did not merit this

outcome. Appellant was not entitled to a verdict of petty theft on each count simply

because the jury determined that lesser included offense was proper on count two.

Even though both robberies were premised upon the same conduct, the jury was free to




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weigh the evidence and arrive at a conclusion that reflected its perception of the facts of

this particular case. Although the verdict may appear inconsistent, we discern no error

in the jury’s conclusions.

       {¶17} Next, appellant argues the state introduced no evidence that appellant

used, or threatened to use, immediate force against the victims in this case. Moreover,

appellant asserts the evidence did not support the conclusion that he was fleeing

immediately after the offense. Thus, he concludes, the jury erred in finding him guilty of

felony-three robbery.

       {¶18} Appellant was convicted of robbery, in violation of R.C. 2911.02(A)(3).

That statute provides:

       {¶19} “(A) No person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall do any of the following:

       {¶20} “* * *

       {¶21} “(3) Use or threaten the immediate use of force against another.”

       {¶22} “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).

       {¶23} Here, both victims testified that, upon encountering appellant at the exit,

appellant became belligerent and eventually struck Lovejoy with an elbow.             And,

although Sposito took appellant to the ground after delivering the blow, appellant

proceeded to struggle, striking both Sposito and Lovejoy during the scuffle. Finally,

once Sposito and Lovejoy withdrew, the evidence demonstrated appellant ran east

through the mall, across the parking lot, and into a nearby business.




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      {¶24} The foregoing demonstrates there was sufficient evidence that appellant

used force in fleeing immediately after committing the theft offense. We therefore

conclude there was sufficient, persuasive evidence to support the jury’s verdict

convicting appellant of felony-three robbery.

      {¶25} Appellant’s first assignment of error lacks merit.

      {¶26} Appellant’s second assignment of error provides:

      {¶27} “The trial court erred when it misstated the purposes of felony sentencing

and sentenced Berry to eighteen months in prison.”

      {¶28} At the sentencing hearing, the trial court stated, “[t]he overriding purposes

[of felony sentencing] are to punish offenders and, most importantly, to protect the

public.” Appellant claims this statement does not accurately reflect the stated purposes

of felony sentencing as codified under R.C. 2929.11. Accordingly, he argues the matter

should be reversed and remanded for resentencing. We do not agree.

      {¶29} R.C. 2929.11(A) provides, in relevant part:

      {¶30} A court that sentences an offender for a felony shall be guided by

             the overriding purposes of felony sentencing. The overriding

             purposes of felony sentencing are to protect the public from future

             crime by the offender and others and to punish the offender using

             the minimum sanctions that the court determines accomplish those

             purposes without imposing an unnecessary burden on state or local

             government resources.

      {¶31} A sentencing court must consider the overriding purposes of felony

sentencing in calculating an appropriate sentence. And, while it may be prudent for the




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sentencing court to paraphrase the language of a sentencing statute, “‘the exact

language [of] the sentencing statute is not “talismanic,” and therefore, the trial court

need not recite the exact language * * * as if it amounted to the “magic words”

necessary to impose a prison term on an offender.” State v. Nichols, 195 Ohio App.3d

323, 2011-Ohio-4671, ¶40 (2d Dist.), quoting State v. Marple, 12th Dist. Clermont No.

CA2004-09-073, 2005-Ohio-6272, ¶30.          Even where a sentencing court makes no

mention of R.C. 2929.11 on the record, reviewing courts presume the court gave proper

consideration to the statute. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶18,

fn. 4.

         {¶32} Here, the mere fact that the trial court did not provide a full and complete

statement of the purposes of felony sentencing does not render appellant’s 18-month

term of imprisonment contrary to law. The court’s statement relating to the purposes of

felony sentencing highlights the primary guiding policies upon which felony sentencing

is premised. That the court asserted that protecting the public is more important than

punishing an offender does not suggest bias or a misunderstanding of the law; rather,

under these circumstances, it indicates the court’s concern with appellant’s conduct that

led to the charges. To wit, after making the statement relating to the purposes of

sentencing, the court continued:

         {¶33} K-Mart and the stores are not out there to give their merchandise

               away free. They have employees, they have stockholders, people

               they have to account for, and you just can’t go into those places of

               business, take what you want and walk out, and then get physical

               with the employees when they try to detain you.




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       {¶34} The record demonstrates the court properly considered all statutory

factors in arriving at appellant’s statutorily-authorized sentence.

       {¶35} One final point must be addressed. The concurring judge fulminates over

our citation to Kalish because, in her view, the cite may somehow mislead readers into

believing that we are utilizing the Kalish standard for reviewing appellant’s felony

sentence. While we mention Kalish, we cite the case for a separate proposition; namely

that the failure to mention R.C. 2929.11 on record, results in a presumption that a trial

court adequately considered the overriding purposes of felony sentencing as set forth

under the statute. Even though the Kalish standard has been abrogated, the principle

for which we cite the case has not. And, most importantly, we make no mention of the

Kalish standard and do not evaluate the instant assigned error using that standard.

Appellant’s argument asserts his sentence was contrary to law; as discussed in our

analysis, we find no basis for this challenge. Notwithstanding the concurring judge’s

enlightened observations regarding the “audience” to whom we speak and “best

practices” for legal opinion drafting, there is absolutely no risk that a reader of this

opinion could reasonably mistake the proposition for which we cite Kalish or otherwise

misunderstand “the controversy at hand.”

       {¶36} Appellant’s second assignment of error lacks merit.

       {¶37} Appellant’s third assignment of error alleges:

       {¶38} “The trial court committed plain error when it provided a flight instruction to

the jury.”

       {¶39} Appellant asserts the flight instruction misled the jury because it did not

differentiate between his “consciousness of guilt” on the theft charge or the robbery




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charge.   By instructing the jury that flight tended to show consciousness of guilt,

appellant argues, the trial court confused the issue of which crime appellant was fleeing

from, the theft or robbery. We do not agree.

       {¶40} The decision to issue a flight instruction is a matter within the trial court’s

discretion and will not be reversed save an abuse of discretion. State v. Jeffries, 182

Ohio App.3d 459, 2009-Ohio-2440, ¶79 (11th Dist.), citing State v. Davilla, 9th Dist.

Lorain No. 03CA008413, 2004-Ohio-4448, ¶12.

       {¶41} “[I]t is * * * well established that the flight of an accused from justice is

admissible as evidence of the consciousness of guilt. * * * ‘It is to-day [sic] universally

conceded that the fact of an accused’s flight, escape from custody, resistance to arrest,

concealment, assumption of a false name, and related conduct, are admissible as

evidence of consciousness of guilt, and thus of guilt itself.’” State v. Cline, 11th Dist.

Trumbull No. 2007-T-0052, 2008-Ohio-1500, ¶60. (Citations and emphasis omitted). An

instruction on flight is proper if there is sufficient evidence to support the charge.

Jeffries, supra, at ¶80.

       {¶42} Appellant argues the flight instruction was improper because it potentially

misled the jury insofar as the court did not make it clear whether it pertained to the theft

charge or the robbery charge. This argument makes little sense. Because appellant

was charged with both theft and robbery and the circumstances of the case indicated

appellant fled after being confronted on the theft and fighting with the employees, the

flight charge related to both crimes. This case did not present an instance in which the

jury was forced to choose which crime the instruction related to because it was

necessarily applicable to both. We therefore conclude there was no possibility of jury




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confusion on this issue as it was required to consider the instruction as it applied to

each discrete crime with which appellant was charged.

       {¶43} With respect to the propriety of the instruction, the state introduced

evidence that appellant, after committing the theft and fighting with Sposito and Lovejoy,

ran through the mall, a parking lot, and disappeared near an abandoned building; he

was later found inside a local business.              Appellant’s actions after the theft were

sufficient to justify the flight instruction in this matter.

       {¶44} Appellant’s third assignment of error lacks merit.

       {¶45} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

                                   _____________________


COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


       {¶46} I concur in the majority’s reasoning and disposition of the assignments of

error. I am aware that the majority cites to Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

for the following proposition, namely: “Even where a sentencing court makes no

mention of R.C. 2929.11 on the record, reviewing courts presume the court gave proper

consideration to the statute.”

       {¶47} I write separately simply to note that Kalish, as of the date of this writing,

contains the following “Warning Analyses” on LexisNexis: abrogated 7 times; overruled




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2 times; superseded 55 times; questioned 3 times; and criticized 11 times. I am puzzled

why the majority desires to continue to cite to such a case when there is a stronger

authority which renders a clearer, more valid citation for the underlying proposition.

See, e.g., State v. Blair-Walker, 11th Dist. Portage No. 2012-P-0125, 2013-Ohio-4118,

¶7-20; State v. Grodzik, 11th Dist. Portage No. 2012-P-0111, 2013-Ohio-5364, ¶21-22

(O’Toole, J., concurring in judgment only with a Concurring Opinion).

      {¶48} We try to write for an audience and for the litigants’ understanding of the

controversy at hand. It only makes sense we use best practices and cite to the best

cases. Kalish is no longer good law. It is so much simpler to use another case.




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