[Cite as State v. North, 2015-Ohio-4526.]




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




STATE OF OHIO,                                            CASE NO. 13-15-16

       PLAINTIFF-APPELLEE,

       v.
                                                          OPINION
WILLIAM R. NORTH,

       DEFENDANT-APPELLANT.



                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 14 CR 0326

                                      Judgment Affirmed

                           Date of Decision: November 2, 2015



APPEARANCES:

        Mark D. Tolles for Appellant

        Brian O. Boos for Appellee
Case No. 13-15-16



WILLAMOWSKI, J.

      {¶1} Defendant-appellant William R. North (“North”) brings this appeal

from the judgment of the Court of Common Pleas of Seneca County convicting

him of robbery. North claims that 1) the trial court erred by denying his motion

for Judgment of Acquittal and 2) that the verdict is against the manifest weight of

the evidence. For the reasons set forth below, the judgment is affirmed.

      {¶2} Shortly after midnight on September 4, 2014, North and William

Mahan (“Mahan”) went to a field in Seneca County with the intent of stealing

marijuana that had been planted in a secluded section of the field. Tr. 111, 123.

Due to the darkness, North and Mahan were unable to find the marijuana, so they

went to an adjacent residence occupied by Robert Tanner (“Tanner”). Tr. 91.

North and Mahan then began throwing rocks and bricks at the windows of the

home in an attempt to get Tanner to come outside. Tr. 48. One brick went

through the kitchen window and shattered it. Tr. 48. North and Mahan were

yelling at Tanner to exit the home. Tr. 49. Believing that he was in danger of

being harmed or killed, Tanner called 911. Tr. 50. Tanner then exited the home

with a shotgun and fired at North and Mahan, striking Mahan. Tr. 55. North then

was picked up by a friend, but they were unable to locate Mahan. Tr. 36.

      {¶3} While leaving the scene, the vehicle in which North was a passenger

was stopped by a Deputy Matthew Huffman (“Huffman”). Tr. 34. Huffman


                                        -2-
Case No. 13-15-16


questioned the occupants of the vehicle about why they were there and was told

that they had picked North up from a party. Tr. 36. No one informed Huffman

about the shooting or that Mahan was missing and possibly injured. Tr. 37. North

was later questioned by Detective Kevin Reinbolt (“Reinbolt”) and confessed that

he had been in the field to steal the marijuana. Tr. 123.

       {¶4} The Seneca County Grand Jury indicted North with one count of

Robbery, in violation of R.C. 2911.02(A)(2),(B), a felony of the second degree.

Doc. 1 A jury trial was later held and North was found guilty. Doc. 29. North

filed a timely appeal and raises the following assignments of error on appeal. Doc.

36.

                            First Assignment of Error

       The decision of the jury was against the manifest weight of the
       evidence.

                           Second Assignment of Error

       The trial court erred in overruling the motion for judgment of
       acquittal.

For the purpose of clarity, we will address the second assignment of error first.

                         Motion for Judgment of Acquittal

       {¶5} In the second assignment of error, North claims that the trial court

erred by denying his motion for acquittal.

       The court on motion of a defendant * * * , after the evidence on
       either side is closed, shall order the entry of a judgment of
       acquittal of one or more offenses charged in the indictment,

                                         -3-
Case No. 13-15-16


       information, or complaint, if the evidence is insufficient to
       sustain a conviction of such offense or offenses.

Crim.R. 29. A motion for acquittal thus tests the sufficiency of the evidence.

State v. Kaczmarek, 3d Dist. Hancock No. 5-12-32, 2013-Ohio-5658, ¶ 20, 5

N.E.3d 1045. “When an appellate court reviews a record for sufficiency, 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. at ¶ 21.

       {¶6} North was indicted on one count of robbery in violation of R.C.

2911.02(A)(2)(B).    Thus, the State was required to prove that North, while

attempting to commit a theft offense, used or threatened the immediate use of

force against another. Based upon North’s own statement to the police, as shown

in Exhibit 3, he went to the home looking to steal marijuana from the field.

Tanner testified that North and Mahan were throwing rocks and bricks at his

window and yelling at him to come out. Tr. 48-49. Tanner was afraid that he

would be injured or killed. Tr. 49. Although there is no direct evidence that North

threatened to use force against another, a reasonable juror could infer that the

threat was there by the actions of North in using force to try and cause Tanner to

exit the home. Viewing the evidence in a light most favorable to the State, there is

sufficient evidence to support all of the elements of robbery for which North was




                                        -4-
Case No. 13-15-16


convicted. The trial court did not err in denying the motion for acquittal and the

second assignment of error is overruled.

                         Manifest Weight of the Evidence

      {¶7} North claims in the first assignment of error that his conviction was

against the manifest weight of the evidence. When reviewing a conviction to

determine if it is against the manifest weight of the evidence, an appellate court

“review[s] 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.” State v. Mendoza, 137 Ohio App.3d 336, 2000-Ohio-1689, 738 N.E.2d

822 (3d Dist.). see, also, State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-

52, 678 N.E.2d 541. A new trial should be granted only in the exceptional case in

which the evidence weighs heavily against conviction.          Thompkins at 387.

Although the appellate court acts as a “thirteenth juror,” due deference to the

findings made by the fact-finder must still be given. State v. Moorer, 3d Dist.

Seneca No. 13-12-22, 2013-Ohio-650, ¶ 29.

      {¶8} In this case, Reinbolt testified that North told him he went to the site

with the intent of stealing marijuana and North admitted as much in his own

statement.   Reinbolt testified that the marijuana was difficult to find in the

daylight, so would have been nearly impossible to find after midnight. Tanner

                                        -5-
Case No. 13-15-16


testified that while he was sitting in his home his windows were struck with rocks

and shattered. At the same time, he heard two voices yelling at him to come out of

the home and he was afraid he would be harmed. Tanner went out of the home

and fired at the two shadows he saw. Mahan was injured by the shots. North

admitted in his statement that he was shot at by Tanner and that he ran. Based

upon this evidence, a reasonable juror could conclude that North was at the home

to steal the marijuana and could infer that while North was attempting to commit

the theft offense, he threatened the immediate use of force against Tanner by

throwing rocks at and through windows while yelling at Tanner to come out of the

home.     This court does not find that the evidence weighs heavily against

conviction or that there was a manifest miscarriage of justice.         The first

assignment of error is overruled.

        {¶9} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Seneca County is affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hlo




                                       -6-
