[Cite as State v. Jordan, 2014-Ohio-3208.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                      No. 14AP-01
v.                                                 :               (C.P.C. No. 13CR-3386)

Jason R. Jordan,                                   :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                       Rendered on July 22, 2014


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Todd W. Barstow, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.

        {¶ 1} Defendant-appellant, Jason R. Jordan, appeals from a judgment of the
Franklin County Court of Common Pleas, finding him guilty, pursuant to jury verdict, of
two counts of robbery, both in violation of R.C. 2911.02. Because (1) both sufficient
evidence and the manifest weight of the evidence support defendant's convictions, and (2)
the court did not violate defendant's Crim.R. 43(A) right to be present, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On June 25, 2013, the state indicted defendant on one count of robbery, a
felony of the second degree, and one count of robbery, a felony of the third degree. The
events giving rise to the indictment occurred on June 10, 2013.
No. 14AP-1                                                                                  2


       {¶ 3} On June 10, 2013, Zachary West was working as a mail carrier for the
United States Postal Service. He wore his mail carrier's uniform and carried his mail bag
on his shoulder. At around noon that day, West was delivering mail to homes and
businesses located around the 2600 block of North High Street, in the Clintonville area of
Columbus, Ohio. West was walking on foot delivering mail and had almost completed his
route. Before returning to his vehicle, he had to "go down a back alley towards another
back alley to do a business drop in their back of the business." (Tr. 73.) It was a rainy day
and there were few people outdoors.
       {¶ 4} As West turned the corner to go from one alley to the next, defendant
confronted him. West stated that defendant initially was four or five feet away from him,
but that defendant then approached West, coming close enough to West that the men
were "face to face." (Tr. 75.) Defendant reached for West's mail bag, "grabbed the bag, and
said, 'Give me the bag.' " (Tr. 75.) West told defendant " 'No,' " and defendant then struck
West in the face and ran off. (Tr. 75.)
       {¶ 5} After the altercation, West went back to his vehicle and called his manager
to report the incident. West's manager said that he would call the police, and told West
that the police would meet West at his vehicle. When the police arrived, West spoke to
Detective Kim Atwood of the Columbus Police Department. Detective Atwood noted that
when she encountered West he had "a small laceration below his right eye" and his "cheek
was a little puffy," injuries which West attributed to defendant striking him. (Tr. 39.) West
provided Detective Atwood with a description of the individual who struck him. West
described the suspect as a short, black male, in his mid to late thirties, with an unruly Afro
and a long goatee. Detective Atwood placed West's description of the suspect into her
report, and provided the description to other uniformed officers in the area.
       {¶ 6} When Officer Daniel Brown began his shift later that day, he saw Detective
Atwood's description of the robbery suspect. Officer Brown explained that defendant
came to his mind as a potential suspect, as Officer Brown had come into contact with
defendant on other occasions, and knew that defendant's features matched Detective
Atwood's description of the suspect. Accordingly, the police compiled a photo array which
included defendant's photograph, and a blind administrator who was unfamiliar with the
case presented the photo array to West the following day. The blind administrator told
No. 14AP-1                                                                                  3


West that if he saw the person who had assaulted him in the photo array to circle that
person's photo, but emphasized that West "did not have to circle anybody" if he was
uncertain. (Tr. 87.) West selected defendant's photo from the array. West testified at trial
that, as a result of this incident, he resigned from the post office because he "felt [he] was
unsafe" at his job. (Tr. 91.)
       {¶ 7} The jury heard the above noted evidence, and found defendant guilty on
both counts of robbery charged in the indictment. At the sentencing hearing, the court
determined that the third degree felony robbery count merged into the second degree
felony robbery count, and sentenced defendant to a four-year term of imprisonment on
the second degree felony robbery conviction.
II. ASSIGNMENTS OF ERROR
       {¶ 8} Defendant appeals, assigning the following errors:
               I. THE TRIAL COURT ERRED AND DEPRIVED
               APPELLANT OF DUE PROCESS OF LAW AS
               GUARANTEED BY THE FOURTEENTH AMENDMENT TO
               THE UNITED STATES CONSTITUTION AND ARTICLE
               ONE SECTION TEN OF THE OHIO CONSTITUTION BY
               FINDING HIM GUILTY OF ROBBERY AS THAT VERDICT
               WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND
               WAS ALSO AGAINST THE MANIFEST WEIGHT OF THE
               EVIDENCE.

               II. APPELLANT WAS DENIED OF HIS RIGHT TO BE
               PRESENT AND THE PRESENCE AND ASSISTANCE OF
               HIS COUNSEL DURING A CRITICAL STAGE OF HIS JURY
               TRIAL, AND HIS RIGHT TO DUE PROCESS AND A
               FUNDAMENTALLY FAIR JURY TRIAL AS REQUIRED BY
               THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS
               TO THE UNITED STATES CONSTITUTION AND ARTICLE
               ONE SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIO
               CONSTITUTION AND OHIO RULE OF CRIMINAL
               PROCEDURES 43(A).

III.   FIRST ASSIGNMENT OF ERROR – SUFFICIENCY AND MANIFEST
       WEIGHT

       {¶ 9} Defendant's first assignment of error asserts that neither sufficient evidence
nor the manifest weight of the evidence support his convictions.
No. 14AP-1                                                                                       4


       {¶ 10} Whether evidence is legally sufficient to sustain a verdict is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The evidence is construed in the light most favorable to the prosecution to determine
whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus; State v. Conley, 10th Dist. No. 93AP-387 (Dec. 16, 1993). When
reviewing the sufficiency of the evidence the court does not weigh the credibility of the
witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79.
       {¶ 11} Sufficiency of the evidence and manifest weight of the evidence are distinct
concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When
presented with a manifest weight argument, we engage in a limited weighing of evidence
to determine whether sufficient competent, credible evidence permits reasonable minds
to find guilt beyond a reasonable doubt. Conley; Thompkins at 387 (noting that "[w]hen a
court of appeals reverses a judgment of a trial court on the basis that the verdict is against
the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees
with the factfinder's resolution of the conflicting testimony"). In the manifest weight
analysis the appellate court considers the credibility of the witnesses and determines
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." Id., quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Determinations of credibility and weight
of the testimony remain within the province of the trier of fact. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus.             The jury may take note of any
inconsistencies and resolve them accordingly, "believ[ing] all, part or none of a witness's
testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.
Antill, 176 Ohio St. 61, 67 (1964).
       {¶ 12} Defendant was convicted of two counts of robbery, both in violation of R.C.
2911.02. R.C. 2911.02(A)(2) and (3) provides, in relevant part, that "[n]o person, in
attempting or committing a theft offense or in fleeing immediately after the attempt or
offense, shall do any of the following: * * * [i]nflict, attempt to inflict, or threaten to inflict
physical harm on another," or "[u]se or threaten the immediate use of force against
another."
No. 14AP-1                                                                                  5


       {¶ 13} The evidence presented at trial established that, as West was delivering
mail, he turned a corner and was "face to face" with defendant. (Tr. 75.) Defendant
grabbed West's mail bag and said " 'Give me the bag.' " (Tr. 75.) West said that defendant
pulled on the bag and tried to take the bag off of West's person. When defendant tried to
take West's mail bag, West said " 'No,' " and defendant then "struck [West] in the face and
took off." (Tr. 75.) West stated that defendant hit him with a closed fist, causing a "bruise
and swelling on [West's] right cheek." (Tr. 79.) Photos taken immediately after the
incident showed an abrasion just below West's right eye and swelling on his cheek. This
evidence was sufficient to establish that defendant, in attempting to deprive West of his
mail bag, used force against West and inflicted physical harm on West. Accordingly,
sufficient evidence supported defendant's robbery convictions.
       {¶ 14} Defendant notes in his brief that West described the encounter as being
quite brief, that it was raining when the incident occurred, and that the robbery occurred
in an alley. Defendant asserts that "[t]hose factors cast doubt on West's identification and
render it not worthy of belief." (Appellant's brief, 2-3.)
       {¶ 15} Although West testified that the entire encounter with defendant lasted
approximately two seconds, he also stated that he had ample opportunity to look at
defendant's face and stature. West stated that he completely saw defendant's face, noting
that defendant was not wearing anything to conceal his face. West stated that he was
"[e]ye to eye" with defendant. (Tr. 79.) West also indicated that, despite the rain, the light
was not bad that day. When the blind administrator showed West a photo array
containing defendant's photo, West stated that he was able to select defendant "[b]ased
on the facial features" and "because of the triangular face and the eyes and nose." (Tr. 87.)
Accordingly, there was ample evidence in the record to support the jury's determination
that defendant was the individual who attempted to deprive West of his mail bag and
struck West in the face on June 10, 2013.
       {¶ 16} Moreover, although under a manifest weight of the evidence analysis we are
able to consider the credibility of the witnesses, "in conducting our review, we are guided
by the presumption that the jury, * * * is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony." State v. Tatum, 10th Dist. No. 10AP-626, 2011-
No. 14AP-1                                                                                 6


Ohio-907, ¶ 5, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The
jury was in the best position to judge West's credibility, and the jury found West to be a
credible witness, as they were entitled to do. Engaging in the limited weighing of the
evidence which we are permitted, we cannot say the jury clearly lost its way when it found
defendant guilty of robbery beyond a reasonable doubt. The manifest weight of the
evidence supports defendant's convictions.
      {¶ 17} Based on the foregoing, defendant's first assignment of error is overruled.
IV. SECOND ASSIGNMENT OF ERROR – RIGHT TO BE PRESENT
       {¶ 18} Defendant's second assignment of error asserts that the trial court
committed reversible error when it denied defendant his right to be present at a critical
stage of the proceedings.
       {¶ 19} A defendant has a fundamental right to be present at all critical stages of his
criminal trial. State v. Hill, 73 Ohio St.3d 433, 444 (1995), citing Crim.R. 43(A) and the
Ohio Constitution, Article I, Section 10. The United States Supreme Court has stated that
an accused is guaranteed the right to be present at all stages of a criminal proceeding that
is critical to its outcome when his or her absence may frustrate the fairness of the
proceedings. Kentucky v. Stincer, 482 U.S. 730, 745 (1987). This right is embodied in
Crim.R. 43(A). Crim.R. 43(A) provides that, "the defendant must be physically present at
every stage of the criminal proceeding and trial, including the impaneling of the jury, the
return of the verdict, and the imposition of sentence, except as otherwise provided by
these rules."
       {¶ 20} Defendant asserts that his Crim.R. 43(A) right to be present was violated
when he was not present during the discussion between the court and counsel regarding
the answers the court should provide to the jury's questions. The jury sent three questions
out to the court during their deliberations, and defendant's counsel, the prosecutor, and
the court discussed the questions and amicably determined how the court should answer
the questions. Indeed, defendant notes that "[c]ounsel and the trial court conferred and
agreed on answers to each question without objection from either side." (Appellant's brief,
4.)
       {¶ 21} Defendant asserts that he was not present during the discussion between
the court and counsel regarding the jury's questions. Initially, we note that there is
No. 14AP-1                                                                                   7


nothing in the record to indicate either that defendant was or was not present during
these discussions. The court reporter noted that the discussion of the jury's questions
occurred in open court, out of the presence and hearing of the jury, but did not note
whether defendant was present. However, we discern nothing from the court reporter's
omission, as the court reporter did not note defendant's presence at any point in the trial.
       {¶ 22} Regardless, even if we were to assume that defendant was absent from the
discussion regarding the jury's questions, we would not find that defendant's absence
amounted to reversible error. The Supreme Court of Ohio has already addressed the issue
of whether a defendant must be present for the discussion between counsel and the court
regarding the answer to a jury's question. In State v. Campbell, 90 Ohio St.3d 320
(2000), the court found no error where a capital murder defendant was absent from an
in-chambers discussion between the court and counsel regarding the trial court's response
to a jury question. The Supreme Court of Ohio held as follows:
               Campbell had no right to be present at the legal discussion of
               how the question should be answered. Nor did he have a
               right to be present when the judge sent the note to the jury
               room. Although the oral delivery of jury instructions in open
               court is a critical stage of trial, the trial court here did not
               instruct the jury in open court; instead, he sent a note. A
               defendant benefits from his presence, and may be harmed by
               his absence, when instructions are given in open court. But
               these potential benefits and harms do not exist when the
               judge merely sends a note to the jury room. We therefore
               hold that the sending of the note was not a critical stage of
               the trial.

(Citations omitted.) Id. at 346. See also State v. Ferguson, 8th Dist. No. 86439, 2006-
Ohio-799, ¶ 56 (noting that "the discussion regarding the jury question was not a critical
stage of the trial").
       {¶ 23} Defendant asserts that State v. Shenoda, 10th Dist. No. 01AP-1409, 2002-
Ohio-4296, supports his contention that he had a right to be present when counsel and
the court discussed the answers to the jury questions. In Shenoda, the jury presented
several written questions to the trial court during their deliberations. In response, the trial
judge "entered the jury room with the court reporter," but without either counsel or
defendant, "and provided the jury with an oral summary of the testimony of * * * a
No. 14AP-1                                                                                8


witness for the state, and reinstructed the jury as to its duty to consider each count
separately." Id. at ¶ 16. This court noted that "where a trial court provides the jury with
further instructions or other substantive information out of the presence of the
defendant, prejudice is presumed and a new trial must be ordered." Id. at ¶ 18. Shenoda
is inapplicable to the instant case, as the trial judge herein did not speak directly to the
jury. Rather, the record demonstrates that after counsel and the court determined the
appropriate answers to the jury's questions, the court's bailiff wrote the answers down,
and delivered the written answers to the jury. Pursuant to Campbell, the discussion
between the court and counsel regarding the answers to the jury's questions, and the
sending of the written answers back to the jury room, were not critical stages of the
proceedings to which defendant was entitled to be present.
       {¶ 24} Based on the foregoing, defendant's second assignment of error is
overruled.
V. DISPOSITION
       {¶ 25} Having overruled defendant's first and second assignments of error, we
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                            TYACK and BROWN, JJ., concur.
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