[Cite as State v. Walton, 2011-Ohio-5662.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96133




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 NICHOLAS WALTON
                                                           DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-534462

        BEFORE: Jones, P.J., Cooney, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                     November 3, 2011
ATTORNEY FOR APPELLANT

John F. Corrigan
19885 Detroit Road, #335
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Vincent I. Pacetti
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, P.J.:

      {¶ 1} Defendant-appellant, Nicholas Walton, appeals his aggravated robbery

conviction.   We affirm.

                                                I

      {¶ 2} In 2009, Walton was charged with aggravated robbery and kidnapping with

one- and three-year firearm specifications.   The charges stemmed from the May 15,

2009 robbery of Becker’s Donuts in Cleveland.
         {¶ 3} Walton waived his right to a jury trial, and the case proceeded to a bench

trial.   At the close of the state’s case, Walton made a Crim.R. 29 motion for acquittal,

which was denied. Walton testified and at the conclusion of his testimony, renewed his

Crim.R. 29 motion; the motion was again denied. The court found Walton guilty of both

counts and the firearm specifications, but merged the aggravated robbery and kidnapping

charges as allied offenses.    The state elected to proceed to sentencing on the aggravated

robbery charge.      The trial court sentenced Walton to a nine-year prison term.

         {¶ 4} Walton raises the following assignments of error for our review:

         {¶ 5} “I.   The trial court erred in shifting the burden of persuasion to appellant to
prove alibi.

       {¶ 6} “II. Appellant’s conviction for robbery was against the manifest weight of
the evidence.”

                                                  II

         {¶ 7} The state presented the testimony of Janice Schebek, who was the sole

employee working at the donut shop at the time of the robbery. Schebek testified that on

the day of the robbery, Walton came into the shop for donuts, but the shop was sold out.

He asked if there were any cookies; there were not.       Schebek told him that there would

not be any baked goods until the next morning. Walton left the shop.

         {¶ 8} Approximately ten minutes later, Walton returned to the shop, brandished a

gun, and demanded the money from the cash register.         Walton jumped over the counter

and took the money out of the register himself. He had the gun in his hand throughout

the robbery. Walton and Schebek were the only two people in the shop during the
incident.

        {¶ 9} According to Schebek, Walton had been in the shop before the day of the

incident.    At one point, Schebek testified that she believed Walton had been there a

“week or so earlier.”    Later in Schebek’s testimony, however, she clarified that she was

“not exactly sure how long” ago Walton had been in the shop, but she had previously seen

him there.

        {¶ 10} After the robbery, Schebek saw Walton run across the street where another

man was “standing on the corner.”         When the police arrived on the scene, Schebek

provided a physical description of the robber and his attire. Schebek later identified

Walton from a photo array. She also identified him in court as the robber. She testified

that she was “100 percent sure” that Walton was the perpetrator.         The robbery was

captured on the shop’s security camera.

        {¶ 11} Detective Michael Kitchen of the Cleveland Police Department investigated

the case.    He obtained the recording of the robbery and released it to the media with the

hope that somebody would come forward with information on the perpetrator. After the

recording aired on the news, two people identified Walton as the robber.

        {¶ 12} Detective Kitchen attempted to find more information on Walton and a

“connection” to the shop’s neighborhood, but hit a “dead end.”      The detective testified

that Walton’s last known addresses were for residences in Columbus, Ohio and Euclid,

Ohio.    In July 2009, he composed a photo array that included Walton’s photo and

presented it to Schebek, who “immediately” identified Walton as the perpetrator.
       {¶ 13} Evidence presented at trial demonstrated that Walton had been released

from juvenile detention on May 12, 2009.

       {¶ 14} Walton testified that when he was released from detention on May 12, he

had no place to go; he did not know where his mother resided, and he had previously been

in the custody of Youth Services. So he spent that night on the “borderline of Euclid

and Cleveland,” and arranged for a friend from Columbus to come to Cleveland the next

morning (May 13) to get him.      The friend picked him up as arranged, and they drove

back to Columbus that day where he stayed until the end of June.        Walton denied ever

going to the donut shop or committing the robbery.

       {¶ 15} Walton further testified that he had several tattoos.     He had one on each

hand and another on the right side of his neck.

                                                  III

       {¶ 16} For his first assigned error, Walton contends that the trial court shifted the

burden of persuasion to him to prove his alleged alibi. Specifically, Walton relies on the

following comment made by the trial court in announcing its decision: “And given the

circumstances here and the certainty of Miss [Schebek’s] testimony, I think that the

Defendant has failed to overcome the strength of her identification.”

       {¶ 17} An alibi is not an affirmative defense, therefore, the burden of persuasion is

not on the defendant, but remains with the state. State v. Robinson (1976), 47 Ohio

St.2d 103, 108, 351 N.E.2d 88. An alibi is an acquitting factor in a case, but it is not the

sole acquitting factor. State v. Sorrels (1991), 71 Ohio App.3d 162, 167, 593 N.E.2d
313. Therefore, any doubt arising from a defendant’s alibi goes to the weakness of the

state’s case.   Id.   If the doubt created either by the alibi, or the weakness of the state’s

case, or both, rises to the level of reasonable doubt as to a defendant’s guilt, an acquittal

is required. Id., citing State v. Childs (1968), 14 Ohio St.2d 56, 64, 236 N.E.2d 545.

       {¶ 18} When the statement Walton complains about is read in toto with the trial

court’s comments, we find that the court held the state to its burden of proof and did not

improperly shift the burden to Walton. Specifically, the court stated that the “standard

of proof is beyond a reasonable doubt.”      The court noted that there “are some questions

that remain[,]” but what it had to determine was “whether they amount to residual doubt

or reasonable doubt.”      “And based upon the totality of the evidence, I will find the

Defendant guilty as charged * * *.”

       {¶ 19} The trial court, as the trier of fact here, was free to believe the testimony

offered by the state and reject that of the defense. State v. Cotton (Dec. 6, 1996),

Montgomery App. No. 15115; State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d

548.   “[A]libi testimony is weighed along with all of the other evidence offered.” In

the Matter of K.E.J., Sandusky App. No. S-08-026, 2009-Ohio-1818, ¶27.

       {¶ 20} Further, this was a bench, not jury, trial.   In a bench trial the trial court is

presumed to know the applicable law and apply it accordingly.               E. Cleveland v.

Odetellah (1993), 91 Ohio App.3d 787, 794, 633 N.E.2d 1159; State v. Waters, Cuyahoga

App. No. 87431, 2006-Ohio-4895.

       {¶ 21} In light of the above, the first assignment of error is overruled.
                                               IV

       {¶ 22} For his second assigned error, Walton contends that the aggravated robbery

conviction was against the manifest weight of the evidence. We disagree.

       {¶ 23} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether “there is substantial evidence upon which a jury could

reasonably conclude that all the elements have been proved beyond a reasonable doubt.

In conducting this review, we must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine 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.”   (Internal citations and quotations

omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.

       {¶ 24} Walton contends that the conviction was against the manifest weight of the

evidence because Schebek failed to notice his tattoos, thereby suggesting that her

identification of him was unreliable. We do not find the failure to notice the tattoos

unusual in this circumstance where Schebek made her observations while under

considerable stress.   Further, Schebek never wavered about her identification of Walton.

 She “immediately” identified Walton as the perpetrator from the photo array, she

identified him in court, and testified that she was “100 percent sure” that Walton was the

perpetrator.   Moreover, two people provided tips that Walton was the robber.         The

mere fact that Schebek did not notice his tattoos did not render her identification

inaccurate or unreliable such that we would conclude that the court “clearly lost its way
and created a manifest miscarriage of justice that the conviction must be reversed” under

Leonard.

       {¶ 25} We are also not persuaded by Walton’s contention that his conviction was

against the manifest weight of the evidence because “[a]n energetic detective failed to

link [him] to the neighborhood[,]” and there was no fingerprint evidence.            Neither of

these circumstances are so incredible such that the conviction created a manifest

miscarriage of justice.

       {¶ 26} In light of the above, the second assignment of error is overruled and the

trial court’s judgment is affirmed.

       {¶ 27} It is ordered that appellee recover of appellant costs herein taxed.

       {¶ 28} The court finds there were reasonable grounds for this appeal.

       {¶ 29} It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR
