[Cite as State v. Spoon, 2012-Ohio-4052.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 97742



                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      LEROY SPOON
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-553134

        BEFORE:              Boyle, P.J., Sweeney, J., and Jones, J.

        RELEASED AND JOURNALIZED:                         September 6, 2012
[Cite as State v. Spoon, 2012-Ohio-4052.]
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Lauren Bell
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Spoon, 2012-Ohio-4052.]
MARY J. BOYLE, P.J.:

        {¶1} Defendant-appellant, Leroy Spoon, appeals his conviction for robbery, raising the

following three assignments of error:

                                        Assignment of Error One

        The trial court erred in denying appellant’s Criminal Rule 29 motion for
        acquittal when there was insufficient evidence to prove the elements of robbery.

                                        Assignment of Error Two

        The appellant’s conviction for robbery was against the manifest weight of the
        evidence.

                                       Assignment of Error Three

        The trial court erred in admitting improper other acts evidence.

        {¶2} We find Spoon’s arguments unpersuasive and affirm.

                                      Procedural History and Facts

        {¶3} Spoon was indicted on two counts: robbery, in violation of R.C. 2911.02, and

felonious assault, in violation of R.C. 2903.11.      Spoon pleaded not guilty to the charges, and

the matter proceeded to a jury trial where the following evidence was presented.

        {¶4} On July 29, 2011, at approximately 3:00 a.m., Michael Kimmie was “driving

around” in East Cleveland when he encountered 20-year-old Ashley Manning.            According to

Kimmie, he asked Manning if she was interested in taking off her clothes in exchange for

money.     The two ultimately returned to Manning’s apartment, which she shared with Spoon.
Kimmie testified that Manning “kept trying to talk [him] into staying longer,” despite him

wanting to leave.   While they were inside the apartment for only about “three, four minutes,”

Spoon returned home.

       {¶5} According to Kimmie, as soon as Spoon entered the apartment, Manning’s

entire attitude and demeanor changed — turning on him and threatening him, at which point,

Kimmie “knew [he] was in trouble,” believing that the situation “was a planned setup.”

Next, Spoon walked toward him and searched his pockets, taking his computer thumb drives,

keys, and approximately ten dollars.       Kimmie testified that Spoon and Manning were

dissatisfied with the contents of his pockets, resulting in them wanting to search his car.   At

this point, Kimmie attempted to flee the apartment but Spoon grabbed him by the shirt,

keeping his hand on Kimmie’s shirt while they walked down the stairs.           Once they got

outside, “[Spoon] said he think I’m playing with him.     He grab me, lift me up, slammed me

on my shoulder.”

       {¶6} Kimmie further testified that Spoon held him down on the ground while

Manning searched his car, finding an envelope with his girlfriend’s address.           Kimmie

testified that Spoon told him that he could leave as long as he came back with money.

According to Kimmie, after Spoon and Manning saw his work identification card, they

“threatened me and they said they knew my address and where I worked and they could come

any time they wanted.”    Kimmie testified that he was scared, and instead of going home to
get money, he went to the police station, reported the incident, and then sought medical

treatment for his shoulder.

       {¶7} On cross-examination, Kimmie testified that Manning kept negotiating to do

more than just take off her clothes but that he was not interested.    Kimmie admitted that he

initially lied to the police when reporting the incident; he told police that Manning had

approached him and asked for a ride home when, in fact, he was the one who approached

Manning and asked her to take off her shirt.   He further admitted that Manning had started to

perform oral sex on him despite his constant protesting of “no” but that it was interrupted

when Spoon arrived home.       According to Kimmie, Manning had further threatened that she

would report him as having raped her if he did not return with $100.

       {¶8} The state also presented the testimony of Manning, who was also charged in

connection with the events testified to by Kimmie.   Manning pled guilty to a lesser offense of

attempted robbery.    Manning admitted that she testified in the hopes of getting probation in

connection with her plea.

       {¶9} According to Manning, she danced for Kimmie but he failed to pay her the full

amount that he owed her.      He paid her only ten dollars up front but promised her a total of

fifteen dollars.   While she was dancing for Kimmie with her shirt off, Spoon arrived home,

knocking on the door.       Manning told Kimmie to “pull up his pants” and “just don’t say

nothing.”    She then let Spoon into the apartment, at which point he asked about Kimmie
being in the apartment.    Manning told Spoon that she danced for Kimmie but that he still

owed her more money.       She told Spoon this so that he could get the rest of her money.

According to Manning, “Spoon is very intimidating.         He doesn’t have to lay his hands on

nobody.   All the neighborhood people is scared of him because of how big he is.”

       {¶10} Manning further testified that Spoon then checked Kimmie’s pockets for money

but did not find any dollar bills, only change.    She eventually checked Kimmie’s car after he

represented that there was money in there.        Manning corroborated Kimmie’s testimony that

Spoon ultimately fought Kimmie when Kimmie attempted to flee.          Manning further testified

that Spoon threatened Kimmie if he did not return with money, stating that “[w]e don’t want

to have to come find you.”     Kimmie then gave the “two computer things” as collateral to

hold while he offered to leave and return with money.         According to Manning, however,

Spoon was merely trying to collect on the debt that Kimmie owed.

       {¶11} The state also offered the testimony of East Cleveland detective Kevin Hones,

who interviewed Spoon and Manning after warrants had been issued for their arrest.         Det.

Hones testified that Spoon waived his right to counsel and agreed to speak about the

underlying incident.   Spoon stated that he came home to find Kimmie in his apartment and

that Manning was upset because Kimmie failed to pay the full $20 that he promised in

exchange for her dancing.     Spoon further stated that Kimmie volunteered to retrieve more

money from his car but merely stated that as a ploy to escape.       Spoon admitted to tackling
Kimmie after Kimmie pushed him but that it was Kimmie who offered to go get more money

and that Spoon did not prevent him from leaving.       Finally, Det. Hones testified that Spoon

admitted that Manning has previously brought people up to the apartment for sex with the

intent of Spoon robbing them before anything takes place.     Spoon stated, however, that “this

incident was not one of those times.”

       {¶12} The jury ultimately found Spoon guilty of the first count of robbery and the

lesser included offense of simple assault under the second count.     The trial court sentenced

Spoon to two years in prison.

       {¶13} Spoon appeals, raising three assignments of error.

                           Sufficiency and Weight of the Evidence

       {¶14} In his first and second assignments of error, Spoon argues that the state failed to

present sufficient evidence to support the robbery conviction and that the conviction is against

the manifest weight of the evidence.    We disagree.

       {¶15} When an appellate court reviews a record upon a sufficiency challenge, “‘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.’”     State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235,

818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.    Conversely, in reviewing a claim challenging the manifest
weight of the evidence, the question to be answered is “whether there is substantial evidence

upon which a jury could reasonably conclude that all the elements have been proved beyond a

reasonable doubt.”     Leonard, 104 Ohio St.3d at ¶ 81. This review entails the following:

       we must examine the entire record, weigh the evidence and all reasonable
       inferences, consider the credibility of the witnesses, and determine whether 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.

(Internal quotes and citations omitted.) Id.

       {¶16} Spoon was convicted of robbery, in violation of R.C. 2911.02(A)(2), which

provides that “[n]o 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.”

       {¶17} Spoon contends that “the record more reflects a failed deal with a prostitute than

a robbery.”      Spoon does not challenge the sufficiency of the evidence as to the underlying

theft offense.     Instead, he argues that the state failed to produce evidence that Spoon

“inflicted or attempted to inflict physical harm” to support the robbery conviction.           We

disagree.

       {¶18} Here, Kimmie’s testimony established that Spoon took $10 from him, and then

he proceeded to escort Kimmie outside to search Kimmie’s car for additional money.           Prior

to reaching the car and after Kimmie attempted to flee, Spoon slammed Kimmie on the
ground, apparently believing that Kimmie was not taking him seriously.        Further, Manning

corroborated Kimmie’s testimony that Spoon physically searched Kimmie’s pockets and

ultimately fought Kimmie when Kimmie attempted to flee.          Construing this evidence in a

light most favorable to the state, we find that the state met its burden of proof and established

that Spoon inflicted physical harm in attempting or committing a theft offense.

       {¶19} Relying on the same arguments advanced in his sufficiency challenge, Spoon

contends that the jury’s verdict should not stand.    We disagree.   We cannot say that this is

the exceptional case where the jury “lost its way.”   Indeed, Kimmie’s testimony, if believed,

revealed that Manning lured Kimmie to her apartment with the expectation of Spoon arriving

for the purpose of robbing Kimmie.       Even if the jury did not believe Kimmie and found

Manning’s account of the events more credible, her testimony merely revealed that she

believed Spoon was justified in his actions of trying to recover on a debt owed to her.      But

the “enforcement on a debt” does not negate the elements of robbery —         all of which were

proven by the state in this case.

       {¶20} The first and second assignments of error are overruled.
[Cite as State v. Spoon, 2012-Ohio-4052.]
                                            Other Acts Evidence

          {¶21} In his final assignment of error, Kimmie argues that the trial court abused its

discretion in allowing East Cleveland detective Kevin Hones to testify as to Spoon engaging in

this same conduct on an earlier occasion.            He contends that such evidence was overly

prejudicial, offered solely to prove that Spoon acted in conformity with his prior bad conduct.

The state counters that the evidence was properly admitted to demonstrate Spoon’s motive and

intent.

          {¶22} Evid.R. 404(B) provides:

          Evidence of other crimes, wrongs, or acts is not admissible to prove the
          character of a person in order to show action in conformity therewith. It may,
          however, be admissible for other purposes, such as proof of motive,
          opportunity, intent, preparation, plan, knowledge, identity, or absence of
          mistake or accident.

          {¶23} This rule is consistent with R.C. 2945.59, which states:

          In any criminal case in which the defendant’s motive or intent, the absence of
          mistake or accident on his part, or the defendant’s scheme, plan, or system in
          doing an act is material, any acts of the defendant which tend to show his
          motive or intent, the absence of mistake or accident on his part, or the
          defendant’s scheme, plan, or system in doing the act in question may be proved,
          whether they are contemporaneous with or prior or subsequent thereto,
          notwithstanding that such proof may show or tend to show the commission of
          another crime by the defendant.

          {¶24} “Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the common

law with respect to evidence of other acts of wrongdoing, they must be construed against

admissibility, and the standard for determining admissibility is strict.”   State v. Broom, 40
Ohio St.3d 277, 281-282, 533 N.E.2d 682 (1988).          But if the enumerated matter is a material

issue at trial and the other acts evidence tends to show that matter by substantial proof, then

the evidence of the other acts may be admissible for that limited purpose.                State v.

Wightman, 12th Dist. No. CA2006-12-045, 2008-Ohio-95, ¶ 26, citing Broom at 281-282;

see also State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345, 634 N.E.2d 616.             Like all

evidence, however, other acts evidence is still subject to the limitations provided in Evid.R.

402 and 403; therefore, the proffered evidence must be relevant and its probative value must

outweigh its potential for unfair prejudice.         State v. Gaines, 8th Dist. No. 82301,

2003-Ohio-6855, ¶ 16.

       {¶25} Specifically, Spoon challenges the following testimony that the state offered in

examining Det. Hones on direct:

       [Det. Hones]:     I then made a statement to Mr. Spoon through              different
                             CI’s I had —

       [Defense Counsel]: Objection.

       The Court:                      It’s overruled.

       [Det. Hones]:    I made the statement to Mr. Spoon —

       The Court:                   You can just tell us what your statement was.

       [Det. Hones]: The statement was, I said, “We have received information that
                            you and Miss Manning have performed this before where
                            you’ve allowed people up to Miss Manning’s room for
                            sex. You come in before the sex is performed, you’re
                              the male in the apartment.”    Mr. Spoon —

           [Defense Counsel]: Objection

       The Court:                   It’s overruled.

       {¶26} We cannot say that the trial court abused its discretion in allowing the state to

introduce this evidence for the sake of proving Spoon’s motive.               Contrary to Spoon’s

assertion, we do not agree that “the jury heard this other conduct and could only have

understood it as proof of [Spoon’s] bad character and that he had been involved in criminal

conduct previously.”    Here, the defense took the position that Manning was not expecting

Spoon to come home, that Kimmie had essentially fabricated most of the story for the sake of

protecting himself, and that Spoon coincidentally came home at the time that he did.       Indeed,

while Manning’s account of the events painted a picture of Spoon merely assisting on a

payment due, Kimmie’s testimony portrayed a much different account.             Thus, evidence of

Manning and Spoon conspiring and luring people to the apartment in the past was relevant to

the issue of motive and to negate the defense’s theory.       Further, the trial court specifically

instructed the jury that it could only consider the evidence for the purpose of deciding Spoon’s

motive and intent and not as character evidence.

       {¶27} The final assignment of error is overruled.

       {¶28} Judgment affirmed.

       It is ordered that appellee recover of appellant 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.   The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.     Case remanded to the trial court for execution of

sentence.

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

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, SR., J., CONCUR
[Cite as State v. Spoon, 2012-Ohio-4052.]
