[Cite as State v. Holliday, 2017-Ohio-2581.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-15-1264

        Appellee                                   Trial Court No. CR0201501384

v.

Benjamin Holliday                                  DECISION AND JUDGMENT

        Appellant                                  Decided: April 28, 2017

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Stephen D. Long, for appellant.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Benjamin Holliday, appeals from the September 30, 2015

judgment of the Lucas County Court of Common Pleas convicting him of robbery, a

violation of R.C. 2911.02(A)(2), and sentencing him to a six-year term of imprisonment.
For the reasons which follow, we affirm. Appellant asserts the following assignments of

error:

                A. MR. HOLLIDAY’S CONVICTION IN CASE NO. CR 15-1384

         FOR ROBBERY IN VIOLATION OF 2911.02(A)(2), A FELONY OF

         THE SECOND DEGREE, IS AGAINST THE MANIFEST WEIGHT OF

         THE EVIDENCE AND THE SUBSTANTIAL WEIGHT OF THE

         EVIDENCE AND [SIC] TRIAL COURT ERRED IN DENYING MR.

         HOLLIDAY’S MOTION FOR ACQUITTAL AND RENEWED MOTION

         FOR ACQUITTAL.

                B. THE TRIAL COURT ERRED IN ALLOWING A JURY

         INSTRUCTION ON “FEAR AND APPREHENSION” WHERE THE

         PRESENCE OR ABSENCE OF FEAR AND/OR APPREHENSION WAS

         IRRELEVANT TO THE QUESTION OF WHETHER PHYSICAL HARM

         WAS INFLICTED, ATTEMPTED TO BE INFLICTED, OR THREATEN

         TO BE INFLICT [SIC] UPON THE VICTIM.

         {¶ 2} The indictment arose out of a robbery at a Subway franchise located at the

Glenbryne Shopping Center in Toledo, Ohio, on November 15, 2014. Appellant was

identified as the perpetrator by the employees and through a surveillance video.

         {¶ 3} In his first assignment of error, appellant argues that his conviction of

robbery is contrary to the manifest weight of the evidence and the trial court erred by

denying appellant’s motion for acquittal. Appellant argues the prosecution failed to




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present evidence that a threat of physical harm was made to the victim and the jury lost

its way in making such a finding.

       {¶ 4} When an appellate court reviews a ruling on a Crim.R. 29(A) motion, it

employs the same standard used to determine whether the evidence was sufficient to

sustain a conviction. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d

959, ¶ 39-40. Under the sufficiency standard, we must determine whether the evidence

admitted at trial, “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, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Therefore, “[t]he

verdict will not be disturbed unless the appellate court finds that reasonable minds could

not reach the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St.3d

421, 430, 683 N.E.2d 1096 (1997), quoting Jenks at 503.

       {¶ 5} Even when there is sufficient evidence to support the verdict, a court of

appeals may decide that the verdict is against the weight of the evidence. State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. A

challenge to the weight of the evidence questions whether or not the greater amount of

credible evidence was admitted to support the conviction. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19; Thompkins at 386-390. When

weighing the evidence, the court of appeals must consider whether the evidence in a case




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is conflicting or where reasonable minds might differ as to the inferences to be drawn

from it, consider the weight of the evidence, and consider the credibility of the witnesses

to determine if “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. at 387, quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “[I]n

determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be made

in favor of the judgment and the finding of facts.” Eastley at ¶ 21, quoting Seasons Coal

Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984) (citation

omitted).

       {¶ 6} Appellant was charged with physical-harm robbery. Pursuant to R.C.

2911.02(A)(2), the prosecution was required to prove beyond a reasonable doubt that

appellant, “in attempting or committing a theft offense or in fleeing immediately after the

attempt or offense, * * * [i]nflict[ed], attempt to inflict, or threaten[ed] to inflict physical

harm on another.” Physical harm is defined as “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).

       {¶ 7} The following evidence was admitted at trial. Shanelle Smith, a shift leader

at the Subway franchise, testified that while she was working with a coworker, appellant

entered the franchise and asked for cookies. He was wearing a blue and orange hoodie,

gray sweatpants, and Chuck Taylor shoes. After she prepared the cookies for sale, he

asked her to do him a favor and open the drawer and give him all the money inside. She




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was afraid when she saw appellant had his hand in his pocket like he had a gun. Since

she was afraid and had only been employed for two months, she called her coworker over

to do it. Her co-worker told appellant that the drawer could not be opened. Appellant

told him to ring up the cookies to open the drawer. Her co-worker did so, and he placed

the drawer on the counter. Appellant used his hand that was not in his pocket to grab the

money. He told the victims to walk to the back and turn around until he left.

       {¶ 8} Appellant argues that based on this evidence, no reasonable inference could

have been made that appellant threatened physical harm. We disagree.

       {¶ 9} While we agree with appellant that possession of a weapon alone is

insufficient to establish physical-harm robbery, the relevant issue is whether the

defendant threatened to inflict physical harm. State v. Page, 5th Dist. Licking No.

10-CA-80, 2010-Ohio-6569, ¶ 28. The state must show the actions of the perpetrator led

the victim to reasonably believe the perpetrator had a weapon and the victim was in

danger of physical harm unless he complied with the perpetrator’s demands. State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 23; State v. Ripinski, 6th

Dist. Lucas No. L-10-1255, 2012-Ohio-5111, ¶ 8 (for purposes of entering a no contest

plea, it was sufficient that the state alleged that the victim feared for her safety); State v.

Reed, 6th Dist. Lucas No. L-97-1133, 1998 Ohio App. LEXIS 2621, *12-14 (June 12,

1998) (“[a]ll that is necessary * * * is proof that appellant threatened to inflict physical

harm on another”).




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       {¶ 10} Therefore, we find the victim’s testimony that she was afraid because she

thought appellant would harm her unless she complied with his demands was sufficient to

submit the case to the jury. Furthermore, the jury’s finding that the offense of physical-

harm robbery was proven is not contrary to the manifest weight of the evidence. It was

reasonable for the jury to infer from appellant’s behavior that he was threatening to harm

her if she did not comply with his demand for money. Therefore, appellant’s first

assignment of error is not well-taken.

       {¶ 11} In his second assignment of error, appellant argues that the trial court erred

in instructing the jury that it could consider the victim’s fear and apprehension in order to

determine whether physical harm was threatened.

       {¶ 12} The trial court instructed the jury as follows:

              Physical harm to persons means any injury, illness, or other

       physiological impairment regardless of its gravity or duration. * * * [T]he

       act of threatening to inflict physical harm must occur during or immediately

       after the offense of theft. * * * [A]lthough the state is not required to

       present proof of fear or apprehension on the part of the victim, evidence has

       been admitted to prove that [the victim] was put in fear. The evidence was

       offered by the state to prove that the defendant threatened to inflict physical

       harm. If you find that [the victim] was placed in fear and that her fear was

       reasonable under the circumstances, and that this fear would cause a

       reasonable person to give up the property of [her employer], and she would




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       do this against her will, then you may find that the state has proved the

       elements of threat to inflict physical harm. The threat to inflict physical

       harm need not be explicit, but rather it can be implied from the defendant’s

       demeanor and tone of voice.

       {¶ 13} On appeal, the court’s determination of what instructions to include will be

reviewed under an abuse of discretion standard. State v. Wolons, 44 Ohio St.3d 64, 541

N.E.2d 443 (1989), paragraph two of the syllabus. Therefore, we must determine

whether the trial court’s decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 14} Appellant objected at trial to this jury instruction arguing that “fear and

apprehension” applied only to a determination of whether robbery by force, R.C.

2911.02(A)(3), had been proven, not physical-harm robbery, R.C. 2911.02(A)(2).

Appellee argues the instruction is not erroneous because there was no mention of “force”

and it was proper for the jury to consider the victim’s “fear and apprehension” in

determining whether appellant had threatened to inflict physical harm. We agree with

appellee. The victim’s state of mind was relevant to the jury in determining whether

there was an implicit threat of physical harm. State v. Evans, 122 Ohio St.3d 381, 2009-

Ohio-2974, 911 N.E.2d 889, ¶ 23; State v. Elsberry, 12th Dist. Butler No. CA2011-12-

221, 2013-Ohio-1378, ¶ 40. We find the trial court did not abuse its discretion in

instructing the jury. Appellant’s second assignment of error is not well-taken.




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       {¶ 15} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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