[Cite as State v. Martin, 2014-Ohio-4447.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :         No. 14AP-189
                                                         (C.P.C. No. 13CR-5354)
v.                                                 :
                                                       (REGULAR CALENDAR)
Iramac S. Martin,                                  :

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                     Rendered on October 7, 2014


                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellee.

                 Richard Cline & Co., LLC, and Richard A. Cline, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, Iramac S. Martin, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which appellant was found guilty of aggravated robbery and
robbery.
        {¶ 2} On October 8, 2013, appellant was indicted on one count of aggravated
robbery, in violation of R.C. 2911.01, and two counts of robbery, in violation of R.C.
2911.02. Prior to trial, on motion of plaintiff-appellee, State of Ohio, the trial court
dismissed Count 3 of the indictment (third-degree felony robbery).
        {¶ 3} The matter came for trial before a jury on Counts 1 and 2 beginning
February 3, 2014. The first witness for the state was James Taylor, age 30. Taylor, an
No. 14AP-189                                                                               2

employee of the Limited Brands in Reynoldsburg, typically works third-shift hours from
8:30 p.m. to 5:00 a.m.     On September 27, 2013, Taylor arrived at work at 8:30 p.m.
Because of a lack of work on that date, Taylor's employer released him from work early, at
approximately 11:30 p.m.
       {¶ 4} Taylor utilized the Central Ohio Transit Authority ("COTA") bus line for
transportation between his home and work, and that evening he took a bus from the
Limited Brands to the downtown area, intending to transfer to another COTA bus. Upon
arriving downtown, Taylor learned that the last available bus had already left. Taylor was
carrying $60 at the time and needed more cash for a cab ride home. He walked to a
nearby ATM bank machine, located near the intersection of High Street and Broad Street,
and withdrew $40 from the machine.
       {¶ 5} While standing near the ATM machine, Taylor heard "someone from my
right side" asking: "Can I get $5"? (Tr. Vol. I, 42.) Taylor "ignored" the person, "withdrew
the money and proceeded to walk over to the bus stop." (Tr. Vol. I, 42.) Taylor described
this individual, who he later identified as appellant, as a black male, wearing a black and
red hat with the letter "C" on it. (Tr. Vol. I, 43.) The man had "a really long goatee and he
was wearing a * * * red-and-white checkered shirt, and he had grills, silver teeth,
something silver in his mouth." (Tr. Vol. I, 42.) The man was also wearing black pants
and black shoes. Taylor estimated the individual was approximately 5 foot 7 inches tall,
weighing between 150 to 160 pounds, and between 21 to 25 years of age.
       {¶ 6} As Taylor stood near the bus stop, the man continued to ask him for money.
Taylor eventually agreed to give him a dollar, and he reached into his pocket and handed
the man a dollar bill. Taylor then phoned a cab but the man "wouldn't leave," and Taylor
"started getting uncomfortable." (Tr. Vol. I, 44.)
       {¶ 7} Taylor walked to the next bus stop located a short distance away. The man
then came "kind of fast behind" Taylor and "put something" against Taylor's upper back
and neck area. (Tr. Vol. I, 44.) The man told Taylor to "give me what you got, give me
everything." (Tr. Vol. I, 44.) Taylor asked the man: "What are you talking about"? (Tr.
Vol. I, 44.) The man said: "Dude, I don't want to kill you. Give me everything that you
got." (Tr. Vol. I, 44.) The man reached into Taylor's left pocket. Taylor started to move
and the man said: "Bro, bro, I don't want to kill you. I'm in a bad place right now." (Tr.
No. 14AP-189                                                                                  3

Vol. I, 45.) At that point, Taylor reached into his right pocket, pulled out his wallet and
the man "saw the money and he took it all." (Tr. Vol. I, 45.)
       {¶ 8} Taylor, who was carrying a book bag that evening, reached into the bag for a
stun gun he kept in the front pouch for protection. Taylor pulled out the case and "pushed
the button," producing a spark and causing the man to jump and move back. (Tr. Vol. I,
48.) Taylor then "went at him with it. That's when he ran. And [Taylor] kind of chased
him down the street." (Tr. Vol. I, 48.) The man "kept running and looking back," heading
north on High Street, and then proceeding west "around the corner on Gay Street." (Tr.
Vol. I, 48.)
       {¶ 9} Taylor walked back to his book bag and phoned the police. A police officer
soon arrived, and Taylor gave the officer a description of the man; approximately six
minutes later, the officer told Taylor that officers had apprehended a suspect matching
the description. The officer drove the victim up the street to where officers had detained
appellant. Officers at the scene took appellant out of a police cruiser, and Taylor testified:
"When they took him out I * * * recognized him right away, but he didn't have his hat."
(Tr. Vol. I, 49.) Taylor told the officer "that was him." (Tr. Vol. I, 50.) Taylor recognized
him by "the long goatee, the checkered shirt and his face." (Tr. Vol. I, 50.)
       {¶ 10} At trial, Taylor identified appellant as the individual who took $100 from his
wallet. Taylor identified State's exhibit No. 17 as the hat worn by the assailant that
evening.       During Taylor's testimony, the state introduced video captured by COTA
security cameras on the night of the incident; Taylor identified himself and appellant as
appearing on the surveillance video. The state also introduced several photographs taken
of appellant after his arrest. Taylor stated that the photographs depicted the clothing
appellant was wearing at the time of the robbery.
       {¶ 11} Columbus Police Officer Kimberly Hollander was on duty during the early
morning hours of September 28, 2013 and responded to a dispatch reporting a robbery.
The officer spoke with the victim, who reported that a man had taken $100 from him; the
victim last observed the man near Gay Street. Officer Hollander testified the victim
described the suspect as a black male, 5 foot 7 inches tall, "thin, a long goatee, silver teeth,
* * * red-and-white plaid shirt and jeans." (Tr. Vol. I, 87.) A short time later, Officer
Hollander received information that a police officer had stopped a suspect matching the
No. 14AP-189                                                                               4

description. Officer Hollander drove Taylor to a location near the intersection of Rich and
High Streets where officers had detained appellant. Officer Hollander rolled down the
window of the cruiser and Taylor, after observing the suspect, told the officer "that is the
person." (Tr. Vol. I, 89.)
       {¶ 12} Columbus Police Officer Ronnie Lucas was on patrol when he received a
dispatch regarding a robbery, including a description of a suspect. The officer observed a
man matching that description walking southbound on High Street. Officer Lucas turned
his vehicle around but when he came back up the street he no longer saw the man. Officer
Lucas proceeded southbound on High Street and "caught a glimpse of him [lying] on a
COTA bus bench" near the intersection of Rich and High Streets. (Tr. Vol. I, 96.) The
officer stopped his vehicle, drew his weapon and asked the suspect to "show * * * his
hands." (Tr. Vol. I, 96.) The suspect "got a little belligerent, and shortly thereafter other
officers arrived, handcuffed him, put him in the cruiser." (Tr. Vol. I, 96.)
       {¶ 13} Columbus Police Officer Wesley Williams received a dispatch regarding a
robbery in the vicinity of High and Broad Streets; the officer subsequently received
information that officers had detained a suspect. Officer Williams and Columbus Police
Officer Brian Feldhaus began searching the area of High Street on foot, looking for a
possible weapon. Officer Feldhaus subsequently discovered a knife inside a recycling
receptacle located near the front of the Palace Theater on Broad Street. The knife was
found "in the middle" of the recycling bin "by itself." (Tr. Vol. I, 111.)
       {¶ 14} On the date of the incident, Columbus Police Officer Edward Powell was
working a special duty assignment at a bar located at 40 Long Street. Officer Powell was
dressed in a street uniform, and stood near the front door as patrons waited to enter the
bar. At approximately 11:45 p.m. that evening, the officer observed appellant outside the
bar. Specifically, appellant "came up to the front door and didn’t want to pay the cover
charge, so he had some verbal altercation with the door person at the bar and he argued
for a couple of minutes about how he knew the owner and didn't want to pay the cover."
(Tr. Vol. I, 116-17.) Appellant continued to argue about the $30 cover charge, and Officer
Powell "asked for his ID because I was going to issue a criminal trespassing warning." (Tr.
Vol. I, 117.) The officer returned appellant's identification information to him and told
appellant "he needed to move on, and he did." (Tr. Vol. I, 117.) Approximately 15 minutes
No. 14AP-189                                                                                 5

later, Officer Powell heard a radio dispatch of a robbery suspect, and the description
"matched [appellant's] description to a T," including the "clothing he was wearing," as
well as the "scruffy beard and silver gold teeth in his mouth." (Tr. Vol. I, 120.)
       {¶ 15} Columbus Police Detective Todd Cress investigated the robbery incident
and interviewed Taylor who told the detective he had observed "a small black metallic
object" in appellant's hand at the time of the incident. (Tr. Vol. I, 127.) At trial, the state
introduced, as exhibit No. 14, a black, metallic knife recovered by police officers from a
recycling bin. Detective Cress took photographs of appellant following his arrest. The
detective testified that the clothing appellant was wearing matched the clothing described
by Taylor. Appellant was also wearing "[f]rontals," which the detective described as "like
false teeth you put over top of your teeth. It's usually gold or silver." (Tr. Vol. I, 133.) At
the time he was detained, appellant was wearing a hat, which the state introduced at trial
as State's exhibit No. 17. Police officers also recovered $67 from appellant.
       {¶ 16} At the close of the state's evidence, appellant made a Crim.R. 29 motion for
judgment of acquittal as to both the aggravated robbery count and the robbery count,
which the trial court denied. Following the presentation of evidence, the jury returned
verdicts finding appellant guilty of both counts. By judgment entry filed February 28,
2014, the trial court merged the two counts and sentenced appellant to three years
incarceration on Count 1 (aggravated robbery). The court also ordered appellant to pay
restitution in the amount of $33.
       {¶ 17} On appeal, appellant sets forth the following assignment of error for this
court's review:
               The trial court erred in denying Defendant's Criminal Rule 29
               Motion for Acquittal of the Aggravated Robbery and Robbery
               charges because insufficient evidence existed to show that
               Defendant committed the offenses charged. Alternatively, the
               Aggravated Robbery and Robbery convictions were against
               the manifest weight of the evidence.

       {¶ 18} Under his single assignment of error, appellant asserts the trial court erred
in denying his Crim.R. 29 motion for judgment of acquittal. Alternatively, appellant
contends that his convictions are against the manifest weight of the evidence.
       {¶ 19} Crim.R. 29(A) states in part: "The court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
No. 14AP-189                                                                                6

of acquittal of one or more offenses charged in the indictment, information, or complaint,
if the evidence is insufficient to sustain a conviction of such offense or offenses." A
motion for acquittal under Crim.R. 29 "challenges the legal sufficiency of the evidence."
State v. Carter, 2d Dist. No. 21145, 2006-Ohio-2823, ¶ 40. Further, such motion "is
governed by the same standard as the one for determining whether a verdict is supported
by sufficient evidence." State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37. In
reviewing the "record for sufficiency, '[t]he 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.,
quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
       {¶ 20} In contrast to a sufficiency argument, a reviewing court considering a
manifest weight challenge "may not merely substitute its view for that of the trier of fact."
State v. Vasquez, 10th Dist. No. 13AP-366, 2014-Ohio-224, ¶ 49. Rather, an appellate
court "must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether in resolving conflicts in the
evidence, the trier 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." Id.
       {¶ 21} R.C. 2911.01 sets forth Ohio's aggravated robbery statute. Pursuant to R.C.
2911.01(A)(1), "[n]o person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or
offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that the offender
possesses it, or use it."      Appellant's conviction for robbery was based on R.C.
2911.02(A)(2), which states in part: "No 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."
       {¶ 22} In challenging the sufficiency of the evidence to support his convictions,
appellant focuses on the evidence presented by the state with respect to issues of identity
and the deadly weapon element of aggravated robbery. As to the issue of identity,
appellant cites the fact that Taylor did not mention that appellant had a tattoo on his left
cheek near his eye, as well as a tattoo on his neck. Appellant further argues that police
No. 14AP-189                                                                                  7

officers, while recovering $67 from appellant, never accounted for the remaining $33 that
was reportedly stolen from the victim.
       {¶ 23} In considering appellant's sufficiency challenge as to identity, the record
reveals the following evidence presented by the state. The victim described the man who
robbed him as a black male, 5 foot 7 inches in height, weighing approximately 150 to 160
pounds. The suspect was wearing a red and white checkered shirt, dark pants, black
shoes, and a black hat with the letter "C" displayed. The individual had a "long goatee"
and "something silver in his mouth," which Taylor identified as "grills." (Tr. Vol. I, 42.)
       {¶ 24} Shortly after Taylor contacted police, a police dispatcher aired a description
and police officers apprehended appellant in the general vicinity of the robbery. A police
officer drove Taylor to the area where the officers had detained appellant, and Taylor
positively identified him as the individual who committed the robbery.               The state
introduced photographs taken of appellant at the time, depicting a black male with a
goatee, wearing a red and white checkered shirt, dark pants, and black shoes. At trial,
Taylor identified appellant as the individual who robbed him. Here, construing the
evidence most strongly in favor of the state, as we are required to do in considering a
sufficiency argument, the prosecution presented evidence sufficient to establish
appellant's identity as the individual who committed the robbery.
       {¶ 25} Appellant challenges the identity testimony as against the manifest weight
of the evidence on the basis that the victim failed to mention appellant had a tattoo on his
face. As noted by the state, however, a review of State's exhibit Nos. 8 and 9, photographs
taken by the detective of appellant shortly after his arrest, reveal that the "teardrop" tattoo
near appellant's right eye is not easily discernible. With respect to the neck tattoo, the
detective noted that appellant was wearing a shirt with a collar at the time of his arrest.
       {¶ 26} As noted above, in addressing appellant's sufficiency argument, Taylor
provided a detailed description of the suspect to police officers, and made a positive
identification of appellant shortly after the incident; he also identified appellant at trial as
the individual who robbed him. In light of the photographic evidence submitted, it is
reasonable to infer that the victim may not have noticed the small tattoo near appellant's
eye, or the tattoo on appellant's neck due to the shirt collar. Based on our review of the
No. 14AP-189                                                                                 8

record, we are unable to conclude that the victim's failure to identify appellant's facial or
neck tattoos rendered the identification evidence unreliable.
       {¶ 27} Appellant further contends the evidence was insufficient to establish
aggravated robbery with a deadly weapon. He similarly challenges the manifest weight of
the state's evidence as to aggravated robbery, asserting alleged discrepancies regarding
the purported weapon used in the robbery.
       {¶ 28} In considering the sufficiency of the evidence of a deadly weapon necessary
to constitute the aggravated robbery offense, the state presented testimony by Taylor that
appellant came up behind him and put a black metallic object against his back and neck
area during the robbery.     Taylor further testified that appellant stated: "I don't want to
kill you. Give me everything that you got." (Tr. Vol. I, 44.) Shortly after the incident, the
detective interviewed Taylor, who told the detective the assailant had "a small black
metallic object" in his hand during the robbery. (Tr. Vol. I, 127.) During the interview,
the detective asked Taylor: "Was it like a gun or something? And [Taylor] said: Yes." (Tr.
Vol. I, 74.) At trial, Taylor testified that he did not know what the object was "right away"
when appellant put the object to his back, "but when I turned a little bit and I was able to
get a look and I saw, I remember it was black and it was a gun. I saw the barrel and it was
metallic." (Tr. Vol. I, 72.) At trial, the state admitted as an exhibit a black metallic knife,
found by police officers in the vicinity of the crime.
       {¶ 29} R.C. 2923.11(A) defines "[d]eadly weapon" to mean "any instrument, device,
or thing capable of inflicting death, and designed or specifically adapted for use as a
weapon, or possessed, carried, or used as a weapon." As noted by the state, either a knife
or a gun would be sufficient to satisfy the definition of a deadly weapon for purposes of
aggravated robbery. See, e.g., State v. Rogers, 8th Dist. No. 77723 (Nov. 16, 2000)
(evidence that defendant either used knife in his possession as a simulated gun during the
robbery or, in the alternative, discarded a real gun during his attempted escape, sufficient
to support conviction for aggravated robbery). Here, testimony by the victim, stating that
appellant placed a gun against his neck and back during the robbery, if believed, was
sufficient to establish the deadly weapon element of aggravated robbery under R.C.
2911.01(A)(1).
No. 14AP-189                                                                                 9

       {¶ 30} Appellant also contends the manifest weight of the evidence fails to support
the deadly weapon element of aggravated robbery, claiming a discrepancy in the state's
evidence as to whether the assailant had a knife or gun. Appellant cites the victim's
testimony that the assailant possessed a gun, while noting that the state's theory was that
the robber must have used the knife found by officers to commit the robbery. Appellant
further contends the evidence failed to link the knife admitted at trial to the assailant.
       {¶ 31} As to evidence regarding the knife, part of the state's theory of the case was
that appellant, after robbing Taylor, initially fled north on High Street, but then proceeded
west on Gay Street, and then backtracked south (on Wall Street) past the area where
police officers recovered a black, metallic knife in an empty recycling bin. As noted under
the facts, Taylor testified that appellant ran north on High Street, and then turned west,
"around the corner on Gay Street." (Tr. Vol. I, 48.) The state also presented evidence that
police officers discovered a knife in that vicinity (i.e., in a recycle bin on Broad Street),
approximately one block south of Gay Street.          Police officers subsequently arrested
appellant further south of that location, near the intersection of High and Rich Streets.
       {¶ 32} Upon consideration of the record, we find the state presented evidence
permitting the trier of fact to reasonably infer that appellant, after initially fleeing north,
turned back and proceeded south past the area where the officers recovered the knife.
Further, the jury could have found that the victim was mistaken as to his belief that the
"small black metallic object" he observed in appellant's hand during the robbery was a
gun (instead of a knife), and concluded that the knife admitted as evidence (i.e., a small
black, metallic object), recovered by police officers in the vicinity of the crime, was the
weapon used to facilitate the robbery. While appellant claims there was a lack of credible
evidence linking the knife to the crime, we note that appellant did not challenge the
admissibility of the knife at trial. Further, given the description by the victim of a small
black metallic object, similar in size and color to the knife found by police officers, it was
within the province of the jury to consider the probative value of such evidence.
Accordingly, we find appellant's conviction for aggravated robbery is not against the
manifest weight of the evidence.
       {¶ 33} Finally, appellant points to the fact that police officers recovered only $67
from appellant following his arrest and that the state never accounted for the remaining
No. 14AP-189                                                                               10

$33 allegedly taken from the victim. However, the fact some of the money taken during
the robbery was not recovered does not render the evidence presented insufficient to
support the guilty verdict. See, e.g., State v. Newbern, 10th Dist. No. 03AP-977, 2004-
Ohio-3694, ¶ 20 (appellant's claim that no money or weapon was recovered does not
establish evidence was insufficient to convict). Rather, testimony by the victim that
appellant, after placing a weapon against his neck and back, reached into his wallet and
took all of the money inside was sufficient to support the conviction for aggravated
robbery.
       {¶ 34} Based on this court's review of the record, we find the state presented
sufficient, competent, credible evidence to support the convictions. Further, we conclude
the trier of fact did not lose its way and create a manifest miscarriage of justice in finding
appellant guilty of the offenses and, therefore, the convictions are not against the manifest
weight of the evidence. Accordingly, the trial court did not err in denying appellant's
Crim.R. 29 motion for acquittal.
       {¶ 35} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                        Judgment affirmed.

                       KLATT and LUPER SCHUSTER, JJ., concur.

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