[Cite as State v. Payne, 2013-Ohio-3729.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99318



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                            KEVIN PAYNE
                                               DEFENDANT-APPELLANT




                        JUDGMENT:
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-568298

        BEFORE:           McCormack, J., Boyle, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: August 29, 2013
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Margaret A. Troia
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Kevin Payne, appeals from the judgment of the

Cuyahoga County Court of Common Pleas that convicted him of two counts of robbery

and sentenced him to four years in prison. He claims his convictions are not supported by

sufficient evidence and are against the manifest weight of the evidence.           He also

challenges the court’s imposition of court costs.   After a careful review of the record, we

affirm Payne’s convictions of robbery.    We reverse, however, the court’s imposition of

court costs and remand the matter for further proceedings consistent with this opinion.

                       Substantive Facts and Procedural History

       {¶2} Payne, 27, was indicted for two counts of robbery: the first count charged

him with robbery, in violation of R.C. 2911.02(A)(2), which was accompanied with a

notice of prior conviction and with a repeat violent offender specification; the second

count charged him with robbery, in violation of R.C. 2911.02(A)(3). The indictment

stemmed from a robbery incident on August 14, 2012, in East Cleveland. Payne waived

a jury trial.   At the bench trial, the state presented the testimony of the victim, the

victim’s girlfriend, and the police officer who chased him on foot and quickly

apprehended him minutes after the victim reported the incident.
                                  The Victim’s Testimony

       {¶3} The sole witness to the robbery is the victim, Kevin Hampton. He testified

to the following events on the evening of the incident: A friend dropped him off at

Butternut Apartments, an apartment complex in East Cleveland, where his girlfriend,

Ericka Garrison, lived.     There were about five people standing at a corner and drinking

when he arrived.     He called Ericka to let him in, but she was at the Family Dollar two

blocks away. While he waited for her in the parking lot outside the building’s main

entrance door, he talked to a man about finding a cable installer for his girlfriend’s

apartment. Another man, whom Hampton did not know and later identified in court as

Payne, walked up and approached both of them. Payne told them “he got loud,” meaning

a high potency of weed.      Hampton told Payne he did not “mess around,” but the other

man went inside the apartment building with Payne.

       {¶4} According to Hampton’s testimony, minutes later, Payne came out of the

building and said “Damn, I’m gonna leave,” because he found out East Cleveland police

were in the nearby Shaw High School parking lot.       Payne said he was “scared to leave”

because he “shot at the police before.”   Hampton started to walked away, and Payne went

back inside the building.

       {¶5} Hampton testified that a minute later, Payne emerged from the building with

a gun and pointed it at Hampton’s chest, demanding him to give him “everything,” saying

he didn’t have a problem shooting him and “going back to New York.”              Hampton

testified that he felt “scared, shocked, and overwhelmed.” Although he had $40 with
him, he did not give Payne the money, because, right at that moment, he spotted his

girlfriend Ericka’s vehicle in the turning lane waiting to pull into the apartment complex.

Payne turned to look in Ericka’s direction as well.     Just then, they heard police sirens

going off. Payne promptly walked away.       Hampton ran past him to the police vehicle to

report the robbery.

        {¶6} As it happened, Officer Telegdy was activating the sirens to pull a driver over

for a traffic violation in front of the apartment complex. Hampton told him he was just

robbed at gunpoint and pointed to Payne, who was walking across the street. Hampton

then watched from the apartment complex as the officer chased Payne on foot through a

residential street and a gas station. After the police apprehended Payne, Hampton went

inside his girlfriend’s apartment to avoid the police’s attention, because he had an

outstanding warrant for a traffic offense.   Shortly after, however, he decided to call the

police to report the robbery, an audio recording of which was submitted as a trial exhibit.

His girlfriend then drove him to the police station to provide a written statement of the

incident.

        {¶7} Hampton acknowledged he was convicted of drug offenses in 2008 and in

2009.    There was a pending charge of tampering with records against him, unrelated to

this case.

                             The Police Officer’s Testimony

        {¶8} Officer Telegdy, a patrol officer with the East Cleveland Police Department,

testified that at around 9:15 p.m. on August 14, he initiated a traffic stop in front of the
Butternut Apartments.    Before he exited his police vehicle to talk to the other vehicle’s

driver, Hampton     approached Officer Telegdy and stated he was just robbed at gunpoint

in the parking lot of the apartment complex.      Hampton identified Payne as the robber.

Payne was walking across the street to a gas station.     The officer quickly pulled into the

gas station. Payne pulled down his hoodie to cover his face. Officer Telegdy exited his

vehicle and said to Payne, “Police. Stop, I want to talk to you.” Payne took off, and the

officer ran after him.

       {¶9} Payne ran into a residential street behind the gas station.      He fell when he

jumped over a fence, but got back up and continued running, back toward the gas station.

When he jumped over the fence, the officer heard a noise that sounded like metals

clashing.   The officer jumped over the fence as well and continued his pursuit.        Payne

was apprehended when he slipped in front of a house behind the gas station.         The entire

foot chase lasted less than two minutes.       Officer Telegdy searched Payne and found

several pairs of latex gloves.     He then returned to the spot where Payne fell while

jumping over the fence, and found a gun broken in two pieces — the top of the slide had

come off the gun.    It turned out to be a starter pistol not capable of shooting a projectile.



                                  Girlfriend’s Testimony

       {¶10} Ericka Garrison, Hampton’s girlfriend, testified that Hampton called her

while she was at the Dollar Store. She was in the turn lane waiting to turn into her

apartment complex when she saw a police vehicle pulling a vehicle over.          She also saw
Hampton in the parking lot, “standing there with someone like they were talking,” but their

facial expressions “didn’t look like it was anything good.” As her vehicle pulled into the

parking lot, Hampton “goes running across the front of the parking lot to the police car,”

and seconds later, the other man ran as well.      She went inside her apartment.    Shortly

after, Hampton came inside as well, telling her “[t]his guy tried to rob me.”       After he

made the 911 call, she drove him to the police station to make a report.

       {¶11} The trial court found Payne guilty of both counts of robbery, and merged the

two counts for sentencing.       At the sentencing hearing, the court noted that he was

convicted of aggravated robbery twice in 2005 and committed the instant robbery within a

year of being released from prison.      The court imposed four years of imprisonment.

Although the court did not mention court costs at the sentencing hearing, it imposed court

costs in its sentencing entry.

       {¶12} Payne now appeals.      He raises three assignments of error.   He claims his

convictions are not supported by sufficient evidence and are against the manifest weight of

the evidence, and that the trial court erred by ordering him to pay costs.
                                 Sufficiency of Evidence

       {¶13} Under the first assignment of error, Payne claims his convictions of robbery

are not supported by sufficient evidence.   When reviewing a challenge of the sufficiency

of the evidence, a reviewing court examines the evidence admitted at trial and determines

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

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

sufficiency challenge requires us to review the record to determine whether the state

presented evidence on each of the elements of the offense. State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court is not to assess

“whether the state’s evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380,

390, 1997-Ohio-52, 678 N.E.2d 541.

       {¶14} Here, Payne was convicted of two counts of robbery as defined in section

(A)(2) and section (A)(3) of R.C. 2911.02, respectively.     Under section (A)(2), a person

commits a robbery if the person, in attempting or committing theft, “[i]nflict, attempt to

inflict, or threaten to inflict physical harm on another.”   Under section (A)(3), a person

commits a robbery, if they, in attempting or committing theft, “[u]se or threaten the

immediate use of force against another.”
       {¶15} The state presented the testimony from the victim, who testified Payne

pointed a gun at him, demanded “everything,” and threatened to shoot him.             A police

officer happened to be nearby, and the victim reported the incident to him.       The police

officer chased Payne on foot through a residential area and apprehended him within

minutes.   Shortly afterward, the officer also recovered a gun broken into two pieces from

an area where Payne jumped over a fence but fell.     A noise of metals crashing was heard

by the officer.   The victim identified Payne in court as the robber and also identified the

gun retrieved by the officer as the gun used by Payne. Although the gun turned out to be

a starter pistol not capable of firing a projectile, the victim testified he was in fear when

the gun was pointed at him.    “The use or threat of immediate use of force element of the

offense of robbery, as expressed in R.C. 2911.02(A), is satisfied if the fear of the alleged

victim was * * * likely to induce a person to part with property against his will * * *.”

State v. Davis, 6 Ohio St.3d 91, 451 N.E.2d 772 (1983), paragraph one of the syllabus.

       {¶16} As such, the testimony presented by the state, if believed, would convince the

reasonable mind that Payne committed robbery as defined in R.C. 2911.02(A)(2)

(threatening to inflict physical harm) and (A)(3) (threatening the immediate use of force).

Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of robbery as defined in these two sections proven

beyond a reasonable doubt.    Therefore, the first assignment of error lacks merit.

                                     Manifest Weight
       {¶17} Under the second assignment of error, Payne claims his convictions of

robbery are against the manifest weight of the evidence.            Unlike sufficiency of the

evidence, manifest weight of the evidence raises a factual issue.

       “The court, reviewing 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 jury clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must
       be reversed and a new trial ordered. The discretionary power to grant a new
       trial should be exercised only in the exceptional case in which the evidence
       weighs heavily against the conviction.”

Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 511, quoting Martin, 20

Ohio App.3d at 175, 485 N.E.2d 717.

       {¶18} In evaluating a manifest weight claim, “the weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of the facts.” State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

When examining witness credibility, “the choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.”   State v. Awan, 22 Ohio St.3d

120, 123, 489 N.E.2d 277 (1986). A factfinder is free to believe all, some, or none of the

testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No.

98538, 2013-Ohio-1184, ¶ 18.

       {¶19} Here, although no one but the victim witnessed the robbery, the victim’s

testimony was largely corroborated by two other witnesses despite minor discrepancies.

The testimony included that of the police officer who pursued Payne on foot and
apprehended him minutes after the victim reported the incident.       Although the victim had

prior felony drug convictions and a pending charge of tampering with records against him,

his credibility rests solely with the trier of fact, who was free to believe all or a part of his

testimony.    We will not substitute our own judgment in place of the factfinder’s

assessment of witness credibility.

       {¶20} After reviewing the entire record, therefore, we conclude this is not one of

the exceptional cases where the evidence weighs heavily against the conviction or where

the trier of fact lost its way and created a manifest miscarriage of injustice in convicting

the defendant. The second assignment of error is without merit.

                                         Court Costs

       {¶21} Under the third assignment of error, Payne claims the trial court erred in

ordering him to pay court costs in its judgment entry, without mentioning court costs at the

sentencing hearing.    This was in error, and the state concedes it on appeal.      See State v.

Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278. In Joseph, the Supreme

Court of Ohio explained that when a trial court failed to orally notify a defendant that it

was imposing court costs, such a defendant was unfairly denied the opportunity to claim

indigency and seek a waiver of the payment of court costs. Id. at ¶ 22.           The Supreme

Court of Ohio held that the defendant was not entitled to a complete resentencing but that

the case should be remanded to the trial court for the limited purpose of allowing the

defendant to move the court for a waiver of the payment of court costs. Id. at ¶ 23.         See

also State v. Roberts, 8th Dist. Cuyahoga No. 98973, 2013-Ohio-2202.
       {¶22} Adhering to Joseph, therefore, we reverse the portion of the trial court’s

judgment imposing court costs.       The matter is remanded for the limited purpose of

allowing Payne to move the court for a waiver of payment of court costs.           The third

assignment of error is sustained.

       {¶23} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MARY J. BOYLE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
