[Cite as State v. Roth, 2014-Ohio-4273.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. CT2013-0040
JOSEPH ROTH

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County Court
                                               of Common Pleas, Case No. CR2013-0012


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         September 25, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RON WELCH                                      ERIN ALLEN
Assistant Prosecuting Attorney                 The Law Offices of Eric J. Allen, LTD
27 North Fifth Street                          713 South Front
Zanesville, Ohio 43701                         Columbus, Ohio 43206
Muskingum County, Case No. CT2013-0040                                                 2

Hoffman, P.J.


       {¶1}   Defendant-appellant Joseph Roth appeals his conviction entered by the

Muskingum County Court of Common Pleas for aggravated robbery and theft. Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 10, 2013, Officer Scott Caldwell of the Dresden Police

Department, while patrolling a location known for illegal drug activity, observed a car

drive through the area slowly and stop near the suspect location.        Officer Caldwell

returned to the area five minutes later, and observed a group of people in the middle of

the street. He then witnessed a bloody, black male run away from the others. The

black male was later identified as Jeff Body, the victim in this case. Officer Caldwell

notified the Muskingum County Sheriff's Office, requesting assistance.

       {¶3}   Jeff Body testified at trial herein, he went to Amy Johnson's house in the

early morning hours of January 10, 2013, after she contacted him numerous times

about coming to her home. Shortly after his arrival, Body heard a loud noise and four

men with masks burst into the bedroom. Body tried to run, but at least one of the men

with masks had a gun. Body was beaten inside the residence, and again as he exited

the residence. He testified the beating only stopped once the police arrived. Body

testified his wallet and vehicle were stolen during the altercation.

       {¶4}   In the early morning hours of January 10, 2013, Deputy Ryan Williams of

the Muskingum County Sheriff's Office arrested Appellant in the victim's car a short

distance from the scene. Deputy Williams observed two masks and a pair of gloves in
Muskingum County, Case No. CT2013-0040                                                     3


the car. The victim testified the mask and gloves did not belong to him, and were not in

the car when he was driving.

       {¶5}   Amy Johnson testified she had been in contact with Adam Poulton, and

Poulton had discussed robbing Body on several occasions. Johnson identified all three

men involved in the robbery, including Appellant. She explained Adam Poulton beat

Body, and Appellant demanded she give him the "F-ing keys."

       {¶6}   Chad Bocook, another defendant, testified he was with Appellant during

the planning stages earlier in the night and throughout the commission of the offense.

He testified he rode in the car with Appellant to Johnson's house. He indicated Adam

Poulton had a .40 caliber Smith and Wesson to be used as Poulton and Appellant

robbed the victim. He further testified Appellant stole the victim's car.

       {¶7}   Following a jury trial, Appellant was convicted of aggravated robbery, a

felony of the first degree, in violation of R.C. 2911.01(A)(1); theft, a felony of the fourth

degree, in violation of R.C. 2913.02(A)(1); and theft, a felony of the fifth degree, in

violation of R.C. 2913.02(A)(1). At sentencing, the trial court merged the aggravated

robbery and fifth degree theft charges, sentencing on the aggravated robbery count.

Appellant was sentenced to an aggregate prison term of eight years.

       {¶8}   Appellant appeals, assigning as error:

       {¶9}   "I. THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO

CONVICT       THE    APPELLANT        OF    AGGRAVATED          ROBBERY,       THE     GUN

SPECIFICATION, FELONIOUS ASSAULT AND THE THEFT CHARGES THUS

VIOLATING APPELLANT'S RIGHT TO DUE PROCESS PURSUANT TO THE FIFTH
Muskingum County, Case No. CT2013-0040                                                4


AMENDMENT TO THE FEDERAL CONSTITUTION MADE APPLICABLE TO THE

STATES BY THE FOURTEENTH.

      {¶10} "II. THE JUDGMENT OF CONVICTION FOR FELONIOUS ASSAULT,

AGGRAVATED ROBBERY WITH A GUN SPECIFICATION, AND THEFTS IS

AGAINST THE WEIGHT OF THE EVIDENCE."

                                            I. and II.

      {¶11} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

      {¶12} Appellant maintains his convictions are against the manifest weight and

sufficiency of the evidence. We disagree.

      {¶13} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (stating that “sufficiency is

a test of adequacy”); State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991).

The standard of review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any rational

trier of fact could have found all the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. Furthermore, a reviewing

court is not to assess “whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.” Thompkins, 78

Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring).
Muskingum County, Case No. CT2013-0040                                                     5


       {¶14} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate

court must construe the evidence in a light most favorable to the prosecution. State v.

Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d

465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could not reach the

conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749

N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

       {¶15} When an appellate court considers a claim a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record,

weigh the evidence, and consider witness credibility. A reviewing court must bear in

mind, however, that credibility generally is an issue for the trier of fact to resolve. E.g.,

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio

St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Once

the reviewing court finishes its examination, the court may reverse the conviction only if

it appears that the fact-finder, when resolving the conflicts in evidence, “clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered." Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶16} If the prosecution presented substantial evidence upon which the trier of

fact reasonably could conclude, beyond a reasonable doubt, the essential elements of

the offense had been established, the judgment of conviction is not against the manifest

weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),

syllabus. Generally, a reviewing court should find a conviction against the manifest
Muskingum County, Case No. CT2013-0040                                                  6


weight of the evidence only in the “exceptional case in which the evidence weighs

heavily against the conviction." Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey, 87

Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

       {¶17} Appellant was convicted of aggravated robbery, in violation of R.C.

2911.01(A)(1),

       {¶18} "(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:

       {¶19} "(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;"

       {¶20} Appellant was convicted of theft, in violation of R.C. 2913.02, which reads,

       {¶21} "(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:

       {¶22} "(1) Without the consent of the owner or person authorized to give

consent;"

       {¶23} R.C. § 2923.03 defines complicity as,

       {¶24} "(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

       {¶25} "(1) Solicit or procure another to commit the offense;

       {¶26} "(2) Aid or abet another in committing the offense;
Muskingum County, Case No. CT2013-0040                                                   7


       {¶27} "(3) Conspire with another to commit the offense in violation of section

2923.01 of the Revised Code;

       {¶28} "(4) Cause an innocent or irresponsible person to commit the offense.

       {¶29} "***

       {¶30} "(F) Whoever violates this section is guilty of complicity in the commission

of an offense, and shall be prosecuted and punished as if he were a principal offender.

A charge of complicity may be stated in terms of this section, or in terms of the principal

offense." (Emphasis added.)

       {¶31} At trial, the trial court instructed the jury as to complicity pursuant to the

statute:

       {¶32} "Complicity. No person acting with the kind of culpability required for the

commission of an offense shall do any of the following:          Aid or abet another in

committing the offense.     Whoever violates this section is guilty of complicity in the

commission of an offense and shall be prosecuted and punished as if he were a

principal offender.

       {¶33} "Aided or abetted means supported, assisted, encouraged, cooperated

with, advised or incited.

       {¶34} "You have heard the testimony from Amy Johnson and Chad Bocook who

pleaded guilty to the same crimes charged in this case and both are said to be

accomplices. An accomplice is one who purpose Lee [sic] knowingly assists or joins

another in the commission of a crime. Whether Amy Johnson and Chad Bocook were

both an accomplice and the wait [sic] to give his or her testimony are matters for you to

determine from all the facts and circumstances in evidence.
Muskingum County, Case No. CT2013-0040                                                      8


       {¶35} "The testimony of an accomplice does not become inadmissible because

of his or her complicity, moral turpitude, or self-interest, but the admitted or claimed

complicity of a witness may affect his or her credibility and make his or her testimony

subject to grave suspicion and require that it be weighed with great caution.

       {¶36} "It is for you, as jurors, in the light of all of the facts presented to you from

the witness stand to evaluate such testimony and to determine its quality and worth or

its lack of quality and worth."

       {¶37} The victim testified he was beaten inside and outside the residence, and

his car and wallet were stolen. In addition, the corroborating testimony of Amy Johnson

and Chad Bocook, both codefendants of Appellant, testified as to the planning and

commission of the offense, including the indication of a firearm during the offense.

       {¶38} Upon review of the evidence, including the testimony of the accomplices,

we find, Appellant's convictions are not against the manifest weight nor the sufficiency

of the evidence, as Appellant acted in complicity and aided and abetted the commission

of the offenses. Both assignments of error are overruled.
Muskingum County, Case No. CT2013-0040                                    9


      {¶39} Appellant's convictions entered by the Muskingum County Court of

Common Pleas, Criminal Division, are affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
