[Cite as State v. Peterson, 2012-Ohio-250.]


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

STATE OF OHIO                                         C.A. No.      25592

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CHARLES R. PETERSON                                   COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 10 02 0316 (B)

                                  DECISION AND JOURNAL ENTRY

Dated: January 25, 2012



        MOORE, Judge.

        {¶1}     Appellant, Charles R. Peterson, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms in part, reverses in part and remands this matter to

the trial court further proceedings consistent with this opinion.

                                                 I.

        {¶2}     Abdulmahdi Al Garawi sold “knock-off” Air Jordan tennis shoes out of his van at

various locations. On January 30, 2010, three men robbed Al Garawi at gunpoint in Akron,

Ohio. The men absconded with Al Garawi’s van, his inventory of shoes, and various other items

that were on his person and in his vehicle. Several months later, Al Garawi passed away due to

circumstances unrelated to the January 30, 2010 robbery. Thus, he was unavailable to testify in

the prosecution of this case.

        {¶3}     On February 17, 2010, Charles Peterson, Edroy “Buddy” McCormick, and

Stephan “Tone/Tony” Green were indicted on the following charges in relation to the January
                                                2


30, 2010 robbery: (1) aggravated robbery, in violation of R.C. 2911.01(A)(1), with an attendant

firearm specification pursuant to R.C. 2941.141, (2) robbery, in violation of R.C.

2911.02(A)(1)/(2), (3) grand theft, in violation of R.C. 2913.02(A)(1), and (4) disrupting public

services in violation of R.C. 2909.04(A)(3). Peterson was further indicted on two counts of

receiving stolen property, in violation of R.C. 2913.51(A). The defendants were tried separately.

Prior to Peterson’s jury trial and upon motion of the State, the trial court dismissed the charge

against him for disrupting public services. The jury returned guilty verdicts on each of the

remaining counts. The trial court merged the robbery count with the aggravated robbery count

for sentencing purposes and imposed a three-year term of incarceration on the aggravated

robbery count, a one-year term of incarceration on the grand theft count, and a one-year term of

incarceration on each of the receiving stolen property counts, to be served concurrently. The

trial court further imposed a mandatory three-year term of incarceration for the firearm

specification, to be served consecutively with the above sentences, for a total term of

incarceration of six years.

       {¶4}    Peterson timely filed a notice of appeal and presents three assignments of error for

our review.

                                                II.

                                ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED IN DENYING [PETERSON]’S CRIM. R. 29
       MOTION AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO
       SUSTAIN A CONVICTION.”

       {¶5}    In his first assignment of error, Peterson argues that his convictions were not

supported by sufficient evidence. We do not agree.
                                                3


       {¶6}    A motion pursuant to Crim.R. 29 tests the sufficiency of the evidence presented

by the State. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The issue of whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

Id. When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In

making this determination, an appellate court 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,
       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.

       {¶7}    Here, Peterson was convicted of aggravated robbery, theft, and receiving stolen

property. R.C. 2911.01 (A)(1) sets forth the offense of aggravated robbery as follows,

       “(A) No 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 do any of the following:

       “(1) Have 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[.]”

       {¶8}    The offense of grand theft is set forth within R.C. 2913.02(A)(1), which provides,

       “(A) No person, with purpose to deprive the owner of property or services, shall
       knowingly obtain or exert control over either the property or services in any of the
       following ways:

       “(1) Without the consent of the owner or person authorized to give consent[.]”

       {¶9}    Peterson was additionally convicted of receiving stolen property in violation of

R.C. 2913.51(A), which provides,
                                                 4


       “(A) No person shall receive, retain, or dispose of property of another knowing or
       having reasonable cause to believe that the property has been obtained through
       commission of a theft offense.”

       {¶10} Further, the trial court instructed the jury on complicity. Peterson’s convictions

based upon a theory of complicity are permissible under R.C. 2923.03(F), which provides that

“[a] charge of complicity may be stated in terms of this section, or in the terms of the principal

offense.” Ohio’s complicity statute provides,

       “(A) No person acting with the kind of culpability required for the commission of
       an offense, shall do any of the following:

       “(1) Solicit or procure another to commit the offense;

       “(2) Aid or abet another in committing the offense;

       “(3) Conspire with another to commit the offense in violation of section 2923.01
       of the Revised Code;

       “(4) Cause an innocent or irresponsible person to commit the offense.” R.C.
       2923.03(A).

       {¶11} In order to support a conviction based upon a defendant’s complicity through

“aiding and abetting,”

       “[T]he evidence must show that the defendant supported, assisted, encouraged,
       cooperated with, advised, or incited the principal in the commission of the crime,
       and that the defendant shared the criminal intent of the principal. Such intent may
       be inferred from the circumstances surrounding the crime.” State v. Johnson, 93
       Ohio St.3d 240, 245 (2001).

       {¶12} Therefore, to be complicit through aiding and abetting, the accused must have

taken some role in causing the commission of the offense. “[T]he mere presence of an accused

at the scene of the crime is not sufficient to prove, in and of itself, that the accused was an aider

and abettor.” State v. Widner, 69 Ohio St.2d 267, 269 (1982).

       {¶13} As part of the State’s case-in-chief, it produced the testimony of McCormick,

Raed Mansour, Officer Daniel Murphy, Officer Todd Sinsley, Sergeant Patrick Dugan, Dennis
                                               5


Miller, and Sergeant David Garro. McCormick testified that on January 30, 2010, he called Al

Garawi and arranged to meet him on Seward Street in Akron, Ohio to purchase some shoes.

Repeatedly in his testimony, McCormick denied that the he, Green and Peterson had “a plan” to

rob Al Garawi. However, during redirect examination McCormick affirmed that the three had

spoken about robbing Al Garawi.

       {¶14} McCormick, Green, and Peterson then met with Al Garawi at his van on Seward

Street. Green had a gun, which he pointed at Al Garawi. McCormick grabbed Al Garawi and

went through his pockets. McCormick, Green, and Peterson then left Seward Street in Al

Garawi’s van, which contained many pairs of shoes. Green drove the van to Bisson Avenue,

approximately one block from Peterson’s home on Bellevue Avenue. Green, McCormick and

Peterson then carried the shoes that Al Garawi had in his van into Peterson’s basement. After

dividing the shoes among them, McCormick left on foot with approximately twenty pairs of

shoes. McCormick threw out in Peterson’s trash can the shoes he had been wearing prior to the

robbery. McCormick testified that his shoe size is between a 12 and a 13.

       {¶15} Raed Mansour testified that he is Al Garawi’s brother-in-law. After Al Garawi

was robbed, he obtained a ride to Mansour’s place of business. Al Garawi told Mansour that he

had just been robbed at gun point. Mansour called 911 and handed the telephone to Al Garawi,

who reported the robbery to law enforcement.

       {¶16} Officer Daniel Murphy testified that he is a patrolman for the Akron Police

Department. While on duty on January 30, 2010, he received a “Be On the Look-Out for”

(“BOLO”) alert regarding a van that was stolen during a robbery that afternoon. During his

patrol, he noticed a van matching the description in a driveway at a vacant residence on Bisson

Avenue. He verified the license plate number of the van matched the license plate number of the
                                                 6


stolen vehicle, and radioed the match into the police station. There was snow on the ground that

day, and he could see footprints leading westbound from the vehicle. Other officers arrived to

assist Officer Murphy’s investigation.

       {¶17} Officer Todd Sinsley testified that he is one of the officers who arrived at Bisson

Avenue to assist Officer Murphy.         He saw the footprints in the snow, one pair of prints

containing a distinctive “circle pattern.” He and his partner followed the prints which eventually

led to a trash can at 792 Bellevue Avenue. Inside the trash can were several shoeboxes and two

pairs of tennis shoes, which were marked as size 9 and size 13.

       {¶18} Officer Sinsley and his partner secured the 792 Bellevue residence, and, upon the

arrival of other officers, Officer Sinsley knocked at the side door of the residence. Gussy

Peterson answered the door and confirmed that three young men, her grandsons, lived in her

home. Gussy Peterson agreed to allow the officers to enter her home to verify that her grandsons

were not at home. In the basement, the officers saw a pill bottle with Al Garawi’s name on it and

shoeboxes. Officer Sinsley then left to obtain a search warrant, and after a search of the home,

the officers found several pairs of new tennis shoes of the type that Al Garawi sold, Al Garawi’s

wallet, and other personal effects and papers that belonged to Al Garawi in the basement and

bedrooms of the Peterson home.

       {¶19} Sergeant Patrick Dugan testified that he is an officer with the Akron Police

Department and heard that officers had located a stolen vehicle on January 30, 2010. Sergeant

Dugan went to 792 Bellevue and spoke with Gussy Peterson after the officers had secured the

house to await the search warrant. At this time, Gussy Peterson told Sergeant Dugan that, earlier

that day, she had witnessed two of her grandsons and a third party that she did not know carry

boxes into her basement. Gussy Peterson was called by the State to testify, but on the stand she
                                                 7


stated that she could not recall this conversation with Sergeant Dugan and denied making this

statement to him.

       {¶20} Dennis Miller testified that he is the grandson of Gussy Peterson and the brother

of Charles Peterson. On January 30, 2010, he and Charles were at home most of the day. Miller

left once to go play basketball, but, upon finding the gym closed, returned home. Later, he and

Charles purchased some shoes from McCormick and another man who had come to their house.

Miller stated that he and Peterson purchased eight pairs of shoes for a total of $200.00 from

McCormick. Miller then threw out his old basketball shoes in the trash can, and left again to

play basketball in a pair of his newly purchased shoes. Finding the gym to still be closed, Miller

returned home, and the police were surrounding his house. After confirming that he lived there,

police arrested Miller. Miller identified one pair of shoes that police had found in the trash as the

shoes he had thrown out.       Miller testified that he and Peterson wear the same size shoe,

approximately 8.5 to 9.

       {¶21} Sergeant David Garro testified that he is an officer with the Akron Police

Department. On January 30, 2010, he interviewed Al Garawi after the robbery. Al Garawi was

able to provide only a few descriptive details regarding the three men who robbed him.

However, while they were speaking, Sergeant Garro received notification that officers had

located Al Garawi’s van and that footprints from the van led to 792 Bellevue Avenue. Sergeant

Garro obtained the names of three men residing at 792 Bellevue from a computer search and then

constructed three photo arrays, each including one of the men living at the Bellevue address:

Charles Peterson, Deon Miller, and Dennis Miller. Al Garawi was not able to identify any of the

men. Sergeant Garro then drove to the Bellevue residence to check in with the investigating

officers, and he then learned that police had taken Dennis Miller into custody. Sergeant Garro
                                                8


returned to the police station to await Dennis Miller’s arrival. When Dennis Miller was brought

into the police station, Officer Garro interviewed him.      Dennis Miller denied that he had

committed a robbery and stated that he did not know anything about the shoes found in his home.

       {¶22} Later, Sergeant Garro received a call from Charita Peterson, the mother of Charles

Peterson and Dennis and Deon Miller. Charita Peterson told him that he had the “wrong son” in

custody. She had learned that “Buddy” had carried items into the Bellevue residence on January

30, 2010, and she identified “Buddy” as a friend of her son Charles Peterson.           With the

assistance of Charita Peterson, Sergeant Garro was able to identify “Buddy” as Edroy

McCormick and to locate Stephan Green. Al Garawi identified both McCormick and Green as

two of the men who robbed him. Sergeant Garro later interviewed McCormick, who eventually

told him that he, Green and Peterson robbed “the shoe man,” and afterward went to Peterson’s

house. The State called Charita Peterson to testify, and she confirmed much of her assistance in

the robbery investigation, but denied that her statements were meant to implicate any

involvement of Charles in the robbery.

       {¶23} Based upon the above testimony and exhibits, when viewed in the light most

favorable to the State, there was sufficient evidence to support Peterson’s convictions. The State

provided evidence sufficient for a reasonable jury to determine that Peterson cooperated with

Green and McCormick in the gun-point robbery of Al Garawi, in the theft of Al Garawi’s van,

shoes, and other belongings, and that Peterson received or retained Al Garawi’s property which

he knew or had reason to know belonged to Al Garawi.

       {¶24} Accordingly, Peterson’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       “THE JURY CREATED A MANIFEST MISCARRIAGE OF JUSTICE AS THE
       VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
                                                 9


       {¶25} In his second assignment of error, Peterson argues that his convictions were

against the manifest weight of the evidence. We do not agree.

       {¶26} When a defendant asserts that his conviction is against the manifest weight of the

evidence,

       “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.” State v. Otten, 33 Ohio App.3d 339, 340 (9th
       Dist. 1986).

       {¶27} In making this determination, this Court is mindful that “[e]valuating evidence

and assessing credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459,

466 (9th Dist. 1994), citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.

1982) and Crull v. Maple Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist. 1987).

       {¶28} At trial, Charles Peterson testified on his own behalf. On the morning of January

30, 2010, he received a telephone call from McCormick, who inquired as to whether Peterson

was interested in purchasing some shoes. Peterson and his brother had previously purchased

“knock-off” Air Jordan tennis shoes from McCormick and were interested in purchasing more.

Later that day, McCormick and another man that Peterson did not know came to his house in a

blue van. They carried several trash bags full of shoes into Peterson’s basement, which they

emptied onto the floor. Peterson saw a pill bottle fall out of a bag, but did not know anything

about it. Peterson and his brother Dennis Miller selected eight pairs of shoes. They paid

McCormick $200.00 for the shoes, and they took the shoes that they had purchased upstairs to a

bedroom that they shared. The unknown man then left in the van, and McCormick left on foot

after using Peterson’s house phone. Peterson threw away the shoeboxes from the shoes he and

Miller had purchased and then left the residence to walk to his girlfriend’s home.
                                                10


       {¶29} The State moved for Peterson’s testimony to be excluded in whole or in part due

to the defense’s failure to file a notice of alibi. At the close of the evidence, the trial court

instructed the jury to disregard Peterson’s testimony that he was home at the time of the robbery.

       {¶30} In support of his manifest weight argument, Peterson argues that the State’s

witnesses were not credible.       Specifically, Peterson cites to numerous discrepancies in

McCormick’s testimony. Peterson also argues that McCormick’s testimony was unreliable due

to his incentive to testify unfavorably toward Peterson based upon McCormick’s plea agreement.

Peterson lastly argues that Charita and Gussy Peterson’s testimony and their prior statements to

law enforcement were unreliable because neither individual witnessed the robbery of Al Garawi.

       {¶31} However, the jury is in the best position to judge the credibility of witnesses

because the jury “is best able to view witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered testimony.”

State v. Cook, 9th Dist. No. 21185, 2003-Ohio-727, at ¶30, quoting Giurbino v. Giurbino, 89

Ohio App.3d 646, 659 (8th Dist. 1993). As to the inconsistencies in the testimony, “the jury is

free to believe all, part, or none of the testimony of each witness.” State v. Cross, 9th Dist. No.

25487, 2011-Ohio-3250, at ¶35, quoting Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-

Ohio-7184, at ¶35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist. 1993). We cannot

say the jury’s resolution of these inconsistencies was unreasonable. See State v. Peasley, 9th

Dist. No. 25062, 2010-Ohio-4333, at ¶18, citing State v. Morgan, 9th Dist. No. 22848, 2006-

Ohio-3921, at ¶35 (“A conviction is not against the manifest weight because the jury chose to

credit the State’s version of events.”).    Further, the evidence does not support Peterson’s

argument that McCormick was induced to testify unfavorably toward Peterson. Instead, the
                                                 11


record indicates only that McCormick’s plea agreement was conditioned upon his testifying

“truthfully.”

       {¶32} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that this is the exceptional case where the jury clearly lost

its way and created a manifest miscarriage of justice in finding Peterson guilty. Accordingly,

Peterson’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       “THE COURT’S JURY INSTRUCTION, VERDICT, AND SENTENCE ON
       THE GUN SPECIFICATION WAS CONTRARY TO LAW AND AMOUNTED
       TO PLAIN ERROR.”

       {¶33} In his third assignment of error, Peterson argues, and the State concedes that,

because his indictment did not include a three-year firearm specification, the instruction, verdict,

and sentence on the three-year firearm specification constituted plain error. We agree.

       {¶34} No objection was made as to the jury instructions, verdict form, or sentence

relative to the three-year firearm specification. Where a party has failed to raise an objection in

the trial court, the objection may still be assigned as error on appeal if a showing of plain error is

made. State v. Hairston, 9th Dist. No. 05CA008768, 2006-Ohio-4925, at ¶9; Crim.R. 52(B).

However, notice of a plain error is taken with the utmost caution and only to prevent a manifest

miscarriage of justice. State v. Bray, 9th Dist. No. 03CA008241, 2004-Ohio-1067, at ¶12.

Therefore, we will not reverse the trial court decision unless it has been established that the trial

court outcome would have clearly been different but for the alleged error. Id.

       {¶35} Within Peterson’s indictment, the Summit County Grand Jury charged Peterson

with a firearm specification attendant to the aggravated robbery charge as follows,

       “The Grand Jurors further find and specify that * * * Charles R. Peterson * * *
       had a firearm, as defined in Section 2923.11 of the Ohio Revised Code, on or
                                                 12


       about [his] person or under [his] control while committing the offense, in
       violation of Section 2941.141 of the Ohio Revised Code, contrary to the form of
       the statute in such a case made and provided and against the peace and dignity of
       the State of Ohio.”

       {¶36} R.C. 2941.141(A) provides,

       “Imposition of a one-year mandatory prison term upon an offender under division
       (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the
       indictment, count in the indictment, or information charging the offense specifies
       that the offender had a firearm on or about the offender’s person or under the
       offender’s control while committing the offense.”

       {¶37} In contrast, R.C. 2941.145(A) provides,

       “Imposition of a three-year mandatory prison term upon an offender under
       division (B)(1)(a) of Section 2929.14 of the Revised Code is precluded unless the
       indictment, count in the indictment, or information charging the offense specifies
       that the offender had a firearm on or about the offender’s person or under the
       offender’s control while committing the offense and displayed the firearm,
       brandished the firearm, indicated that the offender possessed the firearm, or used
       it to facilitate the offense.”

       {¶38} Here, the trial court imposed a mandatory three-year prison term for “possession

of a firearm.” However, this sentence is precluded by law pursuant to R.C. 2941.145 because the

indictment referenced R.C. 2941.141 and it did not set forth the proper specification that

Peterson displayed, brandished, indicated that he possessed, or used the firearm in the

commission of the offense.

       {¶39} Accordingly, Peterson’s third assignment of error is sustained, the three year

sentence on the firearm specification is reversed, and this matter is remanded to the trial court for

further proceedings consistent with this opinion.

                                                III.

       {¶40} Peterson’s first and second assignments of error are overruled. Peterson’s third

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas
                                                13


is affirmed in part, reversed in part and remanded to the trial court for further proceedings

consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.



       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(E). 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 equally to both parties.



                                                     CARLA MOORE
                                                     FOR THE COURT

BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

MARTHA HOM, Attorney at Law, for Appellant.

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