[Cite as State v. Moorer, 2016-Ohio-5216.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      27843

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DEQUANTE D. MOORER                                   COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2015 01 0076

                                 DECISION AND JOURNAL ENTRY

Dated: August 3, 2016



        HENSAL, Judge.

        {¶1}     Defendant-Appellant, Dequante Moorer, appeals his convictions for robbery,

aggravated burglary, and kidnapping in the Summit County Court of Common Pleas. For the

following reasons, this Court affirms.

                                                I.

        {¶2}     On the evening of December 18, 2012, Earl Walker was at home with his elderly

grandmother. While his grandmother was upstairs lying down, Mr. Walker heard a knock at the

front door. The individual outside identified himself as Marty, which is Mr. Walker’s cousin’s

name. Upon opening the door, four or five men “rushed” Mr. Walker. According to Mr.

Walker, the men threw him on the couch, and duct taped his hands and feet. They also put duct

tape over Mr. Walker’s mouth. The men then went through the house and stole several items,

including a large flat-screen television valued at over $2,000.00. After the men left, Mr. Walker

freed himself from the duct tape and called the police.
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       {¶3}    When the police arrived, Mr. Walker directed them to the duct tape that had been

used, as well as a tissue lying on the floor, which he indicated was not present prior to the men

entering the home. The police collected these items and submitted them for DNA testing.

Although the DNA results initially did not produce any suspects, the DNA later matched a

sample submitted by Mr. Moorer in a separate criminal matter.

       {¶4}    A grand jury indicted Mr. Moorer on counts for aggravated robbery in violation of

Revised Code Section 2911.01(A)(3), aggravated burglary in violation of Section 2911.11(A)(1),

and kidnapping in violation of Sections 2905.01(A)(2)/(A)(3). Mr. Moorer pleaded not guilty.

At trial, the State amended the aggravated robbery charge to robbery under Section

2911.02(A)(2), thereby eliminating the need for the State to prove that Mr. Moorer “[i]nflict[ed],

or attempt[ed] to inflict, serious physical harm[,]” and instead requiring the State to prove that

Mr. Moorer “[i]nflict[ed], attempt[ed] to inflict, or threaten[ed] to inflict physical harm[.]” See

R.C. 2911.01(A)(3); R.C. 2911.02(A)(2).

       {¶5}    The State presented testimony from several witnesses, including Mr. Walker,

police officers, and forensic scientists. After the State rested, the defense moved for dismissal

under Criminal Rule 29, arguing, in part, that the State failed to present any evidence of physical

harm. The trial court denied defense counsel’s motion in that regard.

       {¶6}    Mr. Moorer then testified on his own behalf, asserting that he had never been to

Mr. Walker’s home, and that he was being framed for these crimes. The jury found Mr. Moorer

guilty of robbery, aggravated burglary, and kidnapping. The trial court concluded that the

offenses merged for purposes of sentencing, and the State elected to proceed with sentencing as

to the aggravated burglary charge. The trial court sentenced Mr. Moorer to a mandatory prison

term of eleven years.
                                                  3


       {¶7}    Mr. Moorer now appeals his convictions and sentence, raising three assignments

of error for our review. For ease of consideration, we will address Mr. Moorer’s second and

third assignments of error together, and first.

                                                  II.

                                  ASSIGNMENT OF ERROR II

       MR. MOORER’S CONVICTION[S] FOR COUNTS ONE AND TWO ARE
       NOT SUPPORTED BY SUFFICIENT EVIDENCE BECAUSE THERE WAS
       NO EVIDENCE OF PHYSICAL HARM.

                                  ASSIGNMENT OF ERROR III

       BECAUSE MR. MOORER’S KIDNAPPING CONVICTION WAS BASED
       UPON HIS CONVICTIONS FOR ROBBERY AND AGGRAVATED
       BURGLARY, THE KIDNAPPING CONVICTION MUST BE VACATED IF
       THE ROBBERY AND AGGRAVATED BURGLARY CONVICTIONS ARE
       REVERSED.

       {¶8}    In his second assignment of error, Mr. Moorer argues that his convictions for

robbery and aggravated burglary are not supported by sufficient evidence because the State

presented no evidence of physical harm. At best, he argues, the State presented evidence of

force, which is legally distinct from harm. In response, the State argues that “[t]he action[s] of

throwing [Mr.] Walker to the [c]ouch and binding him with duct tape are sufficient to prove that

[Mr.] Moorer inflicted, attempt[ed] to inflict, or threaten[ed] to inflict physical harm.”

       {¶9}    Whether a conviction is supported by sufficient evidence is a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
                                                 4


       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶10} The jury found Mr. Moorer guilty of robbery and aggravated burglary under

Sections 2911.02(A)(2) and 2911.11(A)(1), respectively. Section 2911.02(A)(2) 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[.]” Section 2911.11(A)(1) provides that “[n]o person, by force, * * * shall trespass in an

occupied structure * * * , when another person other than an accomplice of the offender is

present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he

offender inflicts, or attempts or threatens to inflict physical harm on another[.]” Thus, both

statutes required the State to prove that Mr. Moorer inflicted, attempted to inflict, or threatened

to inflict physical harm. Section 2901.01(A)(3) defines “[p]hysical harm” as “any injury, illness,

or other physiological impairment, regardless of its gravity or duration.”

       {¶11} Our review of the record indicates that the State presented sufficient evidence to

allow the jury to infer that Mr. Moorer inflicted, threatened to inflict, or attempted to inflict

physical harm on Mr. Walker. See In re L.M., 9th Dist. Summit No. 25693, 2012-Ohio-1025, ¶

12; State v. Ross, 12th Dist. Clinton No. CA2005-08-015, 2006-Ohio-3780, ¶ 17; State v. Ellis,

10th Dist. Franklin No. 05AP-800, 2006-Ohio-4231, ¶ 5, 7 (addressing robbery under Section

2911.02(A)(2) and noting that the trier of fact can infer from the facts that the defendant

inflicted, attempted to inflict, or threatened to inflict physical harm on the victim). While Mr.

Moorer argues that the State simply presented evidence of force as defined under Section

2901.01(A)(1), we disagree.      See Section 2901.01(A)(1) (defining “[f]orce” as “violence,

compulsion, or constraint physically exerted by any means upon or against a person * * *.”).
                                                   5


       {¶12}     Here, Mr. Walker testified that the men “rushed” him, threw him to the couch,

and duct taped his hands, feet, and mouth. Mr. Walker’s testimony certainly demonstrates that

the men used force, but it was also sufficient to allow the jury to infer that the men attempted to

inflict, or inflicted physical harm, that is, “any injury, * * * regardless of its gravity or duration.”

Section 2901.01(A)(3); See In re L.M. at ¶ 12 (overruling the defendant’s sufficiency argument

and holding that “[i]t is reasonable to infer that the act of pushing another person to the ground

would cause some type of physical harm, however slight[,]” for purposes of robbery under

Section 2911.02(A)(2)); State v. Warren, 4th Dist. Athens No. 02CA29, 2003-Ohio-1196, ¶ 22

(holding that a “rational jury could find that [the defendant] was aware that his conduct of tightly

binding [the victim’s] feet and her hands with sticky duct tape and placing sticky duct tape over

her mouth would probably cause [the victim] physical harm while it was on and when it was

removed.”). Accordingly, Mr. Moorer’s second assignment of error is overruled.

       {¶13} In his third assignment of error, Mr. Moorer argues that, if the robbery and

aggravated burglary convictions are reversed, then this Court must vacate his conviction for

kidnapping, which is premised upon his convictions for robbery and aggravated burglary. In

light of our disposition of Mr. Moorer’s second assignment of error, Mr. Moorer’s third

assignment of error is overruled as moot. App.R. 12(A)(1)(c).

                                   ASSIGNMENT OF ERROR I

       THE JURY INSTRUCTION FOR COUNTS ONE AND TWO FAILED TO
       MINIMALLY INSTRUCT THE JURY REGARDING THE ELEMENTS
       NECESSARY TO FIND MR. MOORER GUILTY OF THESE COUNTS.

       {¶14} In his first assignment of error, Mr. Moorer argues that the trial court failed to

properly instruct the jury on each element of the crimes of robbery and aggravated burglary.
                                                  6


Specifically, Mr. Moorer argues that the trial court omitted the following language from its

instruction of theft for purposes of the robbery charge:

       knowingly obtained or exerted control over the…specific property…(A)(1)
       without the consent of the (owner) (person authorized to give consent); (or)
       (A)(2) beyond the scope of the (express) (implied) consent of the (owner) (person
       authorized to give consent); (or) (A)(3) by deception; (or) (A)(4) by threat; (or)
       (A)(5) by intimidation.

See R.C. 2913.02(A).

       {¶15} Instead, the trial court instructed the jury regarding theft as follows:

       Theft offense. Before you can find the defendant was committing or attempting
       to commit the offense of robbery, you must find beyond a reasonable doubt that
       the defendant did commit the offense of theft.

       You must find beyond a reasonable doubt that on or about the 18th day of
       December, 2012, in Summit County, Ohio, the defendant, with purpose to deprive
       the owner of property; specifically, money, television, jewelry and a sound
       system.

       Property means property, real or personal, tangible or intangible, and any interest
       or license in that property.

       {¶16} The trial court then proceeded to define other terms. Mr. Moorer argues that the

trial court committed the same error in its instruction for aggravated burglary because it

incorporated its previous definition of theft. In sum, Mr. Moorer argues that, “[a]t no point in the

Court’s instructions * * * is the jury instructed that it must find that [he] knowingly obtained or

exerted control over the property by any of the means provided in the statute.” Mr. Moorer

concedes that his trial counsel did not object to the jury instructions at trial and, therefore, that

this Court reviews the matter for plain error.

       {¶17} The doctrine of plain error requires that there must be: (1) a deviation from a legal

rule; (2) that is obvious, and; (3) that affects the appellant’s substantial rights. State v. Hardges,

9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9. An error affects the appellant’s substantial
                                                 7


rights if it affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶18} The Ohio Supreme Court has held that “relieving the state of its burden of proving

an element of the offense violates a defendant’s right to due process.” State v. Steele, 138 Ohio

St.3d 1, 2013-Ohio-2470, ¶ 31, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶

97. “[S]uch an error in jury instructions[, however,] is waived when there was no objection and

when the outcome of the trial was not affected.” Steele at ¶ 31, citing Adams at ¶ 100, 102. We,

therefore, must “review the instructions as a whole and the entire record to determine whether a

manifest miscarriage of justice has occurred as a result of the error in the instructions.” Steele at

¶ 33, quoting State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, ¶ 17.

       {¶19} Mr. Moorer argues that the trial court’s instruction does not simply omit an

element of the crime of theft; it omits a substantial portion of the jury instruction, which resulted

in a manifest miscarriage of justice. The State, on the other hand, argues that the trial court

correctly instructed the jury regarding robbery and aggravated burglary, and that its theft

instruction provided above did not affect the outcome of the trial.

       {¶20} Our review of the record indicates that the trial court did, in fact, err by failing to

properly instruct the jury as to all the elements of theft under Section 2913.02(A). See State v.

Wamsley at ¶ 17. We, however, do not find that this error affected the outcome of the trial. In

this regard, the record indicates that Mr. Walker did not consent to the men forcing their way

into his home, duct taping his hands, feet, and mouth, and taking items from his home. Thus, the

record indicates that the men knowingly obtained the items without Mr. Walker’s consent. See
                                                   8


State v. Mcgee, 2d Dist. Montgomery No. 6631, 1981 WL 5301, *5 (Jan. 14, 1981) (finding “no

prejudicial error in the failure of the court to instruct the jury that ‘theft’ means knowingly

obtaining property of another with purpose to deprive the owner thereof of the property without

his consent[,]” and stating that “[a]ny juror knows that when a robber points a gun at another and

demands and receives his money, it has been obtained without the owner’s consent.”). Further,

the record indicates that Mr. Moorer did not dispute that a theft occurred. Indeed, in his closing

argument, Mr. Moorer’s counsel indicated that he is “not disputing anything that happened to

Mr. Walker.” Instead, his argument focused on the alleged lack of evidence regarding physical

harm for purposes of the robbery and aggravated burglary charges, and the fact that there was no

evidence as to whether Mr. Moorer was actually involved in the home invasion, or what role he

played if he was, among other arguments.

        {¶21} Based upon the totality of the instructions and the record before us, we do not find

that the trial court’s error clearly and substantially affected the outcome of the trial. Steele at ¶

33; See State v. Byrd, 2d Dist. Montgomery No. 6600, 1980 WL 352572, * 4-5 (Dec. 12, 1980)

(addressing aggravated robbery and holding that, although the trial court failed to properly

instruct the jury on all of the elements of theft, its error did not affect the outcome of trial); State

v. Wilkerson, 10th Dist. Franklin No. 79AP-813, 1980 WL 353499, *2-4 (June 12, 1980)

(holding same). Accordingly, Mr. Moorer’s first assignment of error is overruled.

                                                  III.

        {¶22} Mr. Moorer’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                   Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CONCURS.

CARR, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

ANDREA L. WHITAKER and WILLIAM T. WHITAKER, Attorneys at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
