[Cite as State v. Wells, 2019-Ohio-1276.]


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

STATE OF OHIO                                          C.A. No.        18CA0026-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TARA WELLS                                             COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   17CR0608

                                  DECISION AND JOURNAL ENTRY

Dated: April 8, 2019



        HENSAL, Judge.

        {¶1}     Tara Wells appeals her convictions for robbery and felonious assault in the

Medina County Court of Common Pleas. For the following reasons, this Court affirms.

                                                  I.

        {¶2}     D. Clark wanted to wire bail money to a friend in California, but could not find

his identification card, so he asked Samantha Brown to send it for him. Ms. Brown met him at a

store, and he gave her the money. When Ms. Brown got to the front of the line, however, she

told Mr. Clark that she had left her identification at her grandmother’s house. She gave him his

money back and asked him to take her to get it. While they were exiting the store, Ms. Brown

ran into a friend and talked to him for a little while. Once outside, Ms. Brown saw her mother,

Ms. Wells, in the parking lot and went over to talk to her for a little while as well.

        {¶3}     After leaving the parking lot of the store in Mr. Clark’s truck, Ms. Brown directed

him toward her grandmother’s house. Because he was driving and had a cast on one of his
                                                2


hands, Mr. Clark handed his money back to Ms. Brown, who tucked it inside her purse. When

Ms. Brown told Mr. Clark that they had reached her grandmother’s house, he stopped to let her

out. Instead of walking up to the house, however, Ms. Brown began walking up the road. It

made him suspicious, so he got out and followed her. Around that time, he noticed a car going

slowly down the road. When it reached Ms. Brown, she got into it and told the driver, Ms.

Wells, to go.

       {¶4}     Mr. Clark ran after the car. He forced himself partially through an open back

window and began struggling with Ms. Brown. According to Mr. Clark, the friend Ms. Brown

had encountered in the store, her brother, and another man were also in the car and tried assisting

her. Meanwhile, the car continued down the street, dragging Mr. Clark’s feet along the road.

When the car finally slowed, Mr. Clark grabbed the purse and rolled away from the car, causing

the money to scatter on the ground. As Mr. Clark collected the money, Ms. Brown’s brother got

out of the car and began attacking him. Mr. Clark hobbled back to his truck and drove to an

open field where police found him and took him to a hospital.

       {¶5}     The Grand Jury indicted Ms. Wells on one count of robbery and two counts of

felonious assault. A jury found her guilty of the offenses, and the trial court sentenced her to a

total of five years imprisonment. Ms. Wells has appealed, assigning four errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       WELLS’ CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS A
       MATTER OF LAW AND THE COURT ERRED BY DENYING WELLS’
       CRIM. R. 29, MOTION.

       {¶6}     Ms. Wells argues that the State did not introduce enough evidence to convict her

of robbery. Specifically, she argues that there was insufficient evidence to show that she had any
                                                3


knowledge that a theft offense was being committed. 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,
       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}    The jury found Ms. Wells guilty of committing robbery under Revised Code

Section 2911.02(A)(2), which 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[.]” The definition of “[t]heft offense”

includes a violation of Section 2913.02, which provides, in relevant part, that “[n]o person, with

purpose to deprive the owner of property * * *, shall knowingly obtain or exert control over * * *

the property * * * [w]ithout the consent of the owner * * *.” R.C. 2913.01(K)(1); R.C.

2913.02(A)(1). “A person acts knowingly, regardless of purpose, when the person is aware that

the person’s conduct will probably cause a certain result or will probably be of a certain nature.

A person has knowledge of circumstances when the person is aware that such circumstances

probably exist.” R.C. 2901.22(B). Recognizing that establishing someone’s mental state is

“often difficult to prove directly,” the Ohio Supreme Court has held that it can “be inferred from

the surrounding circumstances.” State v. Logan, 60 Ohio St.2d 126, 131 (1979).
                                                 4


       {¶8}    Ms. Brown testified that, after Mr. Clark called her, she called Ms. Wells and

asked her to help take his money. When she talked to Ms. Wells in the parking lot, she told her

to follow Mr. Clark’s truck. After the money fell on the road, the men in the car got out and

collected what they could. The five of them later met at Ms. Brown’s friend’s apartment and

divided the money. According to Ms. Brown’s friend, when they were at his apartment, he heard

Ms. Brown and Ms. Wells discussing how they had “hit a lick.” He also observed Ms. Wells

helping count out the recovered money.

       {¶9}    Upon review of the record, we conclude that, viewing the evidence in a light most

favorable to the State, the testimony of Ms. Brown and her friend provided sufficient evidence to

convince a rational trier of fact that Ms. Wells knowingly committed a theft offense.

Accordingly, we conclude that there is sufficient evidence to support Ms. Wells’ conviction for

robbery. Ms. Wells’ first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       WELLS’ CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
       CONSTITUTION.

       {¶10} Ms. Wells next argues that her convictions are against the weight of the evidence.

If a defendant asserts that a 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). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d 380, at 387. An appellate court should only exercise its power to
                                                  5


reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v.

Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶11} Ms. Wells argues that Ms. Brown’s testimony was not credible. She notes that

Ms. Brown testified that she had not taken any of her prescribed medicine for months and did not

know whether it was affecting her testimony. Ms. Brown admitted that she could not remember

some of the details of the day of the robbery because she had used a lot of drugs since then,

including methamphetamine just three days earlier. She also admitted that she was hoping to

receive some sort of benefit for her testimony.

       {¶12} Ms. Wells also argues that the testimony of Ms. Brown’s friend was not credible

because he had pleaded guilty to an amended indictment, giving him a motive to implicate her.

He also admitted that he had lied to the police three times about what happened. Even if his

testimony is accepted as true, Ms. Wells notes that Ms. Brown’s friend testified that the robbery

was not pre-planned and that he had simply gone along to keep Ms. Brown safe from Mr. Clark.

He also testified that he never heard anyone in Ms. Wells’ vehicle talk about robbing Mr. Clark.

       {¶13} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of

the syllabus. “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29.

       {¶14} Upon review of the record, we note that Ms. Brown did not identify what

medication she had been prescribed. She also testified that the only effect of her not taking her

medication was that it made her scared. She further testified that, although she had used

methamphetamine three days earlier, she was not under its effects at that time. Regarding Ms.
                                                6


Brown’s friend, we note that, although he admitted lying to police, he testified that once they

showed him evidence implicating him in the offenses, he decided that he would tell the truth.

Accordingly, we cannot say that the jury lost its way when it decided to accept the testimony of

Ms. Brown and her friend over the testimony of Ms. Wells. We conclude that this is not the

exceptional case in which we should exercise our power to reverse a judgment as against the

manifest weight of the evidence. Ms. Wells’ second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       WELLS’ RIGHT TO A FAIR TRIAL WAS VIOLATED BECAUSE THE
       TRIAL COURT ALLOWED THE TESTIMONY OF AN INCOMPETENT
       WITNESS.

       {¶15} Ms. Wells next argues that the trial court should not have allowed Ms. Brown to

testify because she was incompetent.      She argues that, considering Ms. Brown’s difficulty

remembering things, her mental health issues, and her use of methamphetamine, the court should

have at least conducted an in camera interview to determine her competency to testify.

       {¶16} Ms. Wells did not object to Ms. Brown’s competency during the trial, so she has

“forfeited all but plain error[.]” State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 67. We

note that she has not developed a plain-error argument in her appellate brief, and we decline to

construct one for her. State v. Thomas, 9th Dist. Summit No. 27266, 2015-Ohio-2935, ¶ 15.

Accordingly, we conclude that Ms. Wells has failed to establish that the trial court incorrectly

allowed Ms. Brown to testify. Ms. Wells’ third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON
       DEFENSE OF OTHERS.

       {¶17} Ms. Wells’ final argument is that the trial court incorrectly denied her request for

an instruction on the defense of others. “A criminal defendant has a right to expect that the trial
                                                 7


court will give complete jury instructions on all issues raised by the evidence.” State v Williford,

49 Ohio St.3d 247, 251 (1990). “This Court reviews a trial court’s decision to give or decline to

give a particular jury instruction for an abuse of discretion under the facts and circumstances of

the case.” State v. Sanders, 9th Dist. Summit No. 24654, 2009-Ohio-5537, ¶ 45; State v.

Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 152. “An abuse of discretion is more than an

error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in

its ruling.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶18} “Under Ohio law, self-defense is an affirmative defense.” Williford at 249. To

establish self-defense, the defendant must show: “(1) [she] was not at fault in creating the

situation giving rise to the affray; (2) [she] ha[d] a bona fide belief that [s]he was in imminent

danger of death or great bodily harm and that h[er] only means of escape * * * was in the use of

such force; and (3) [she] must not have violated any duty to retreat or avoid the danger.” State v.

Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus. “A person who asserts that

[s]he was defending another and ‘intervenes in a struggle and has no duty to do so, acts at h[er]

own peril if the person assisted was in the wrong.’” State v. Campbell, 9th Dist. Lorain No.

97CA006973, 1999 WL 492595, *5 (July 14, 1999), quoting State v. Wenger, 58 Ohio St.2d 336,

339 (1979).

       {¶19} Ms. Wells argues that she was entitled to a defense of others instruction because

she, Ms. Brown, and Ms. Brown’s friend each testified that, when Mr. Clark pushed his torso

through the window of her car, he began punching Ms. Brown. Ms. Wells testified that the car

was already moving and that she did not know what to do, she only knew was that her daughter

was under attack. Mr. Clark told her that if she slowed down, he would get off, so she stopped
                                                 8


the car. When the car stopped, however, Mr. Clark started punching Ms. Brown again, so she

started going again.

       {¶20} Although Ms. Wells may have been concerned about her daughter, Ms. Brown

admitted that she was at fault for creating the situation by taking Mr. Clark’s money. Ms. Wells

did not have a greater right to defend Ms. Brown than Ms. Brown had to defend herself. Wenger

at 340. Accordingly, upon review of the record, we conclude that the trial court exercised

appropriate discretion when it declined to instruct the jury on defense of others. Ms. Wells’

fourth assignment of error is overruled.

                                                III.

       {¶21} Ms. Wells’ assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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 Medina, 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.
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      Costs taxed to Appellant.




                                             JENNIFER HENSAL
                                             FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
