[Cite as State v. Tate, 2014-Ohio-2394.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100348




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           ANTOINE TATE
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-569766

        BEFORE: Rocco, P.J., Blackmon, J., and McCormack, J.

        RELEASED AND JOURNALIZED: June 5, 2014

                                                -i-
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, OH 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:    Carl Sullivan
       Andrew T. Gatti
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, P.J.:

       {¶1} Defendant-appellant Antoine Tate appeals from his convictions and the

sentences imposed after the trial court found him guilty of aggravated robbery,

kidnapping, and drug possession, all with firearm specifications, and theft, possession of

criminal tools, and tampering with evidence.

       {¶2} Tate presents two assignments of error. He claims his convictions for

aggravated robbery and kidnapping, with firearm specifications, are unsupported by the

manifest weight of the evidence. He further claims that the eight-year total sentence that

the trial court imposed was improper because it was not the minimum term for his

convictions.

       {¶3} Upon a review of the record, this court disagrees with Tate’s claims.

Consequently, his convictions and sentences are affirmed.

       {¶4} Tate’s convictions result from an incident that occurred shortly after 10:00

p.m. on December 10, 2012. The state’s witnesses provided the following account of the

incident.

       {¶5} The victim, Demetrius Patterson, drove with his girlfriend, Charise Littlejohn,

and another friend to his cousin’s apartment located at 4908 Quincy Avenue. Patterson

wanted his cousin to repair Littlejohn’s computer.

       {¶6} Upon their arrival, Patterson exited his car and approached his cousin’s

building as Littlejohn was gathering the items she intended to take inside.         Before

Littlejohn joined him, Patterson saw two men come around the corner of the building.
One of the men, whom Patterson later identified as Tate, put a gun to Patterson’s head

and demanded that Patterson “[g]ive [him] everything.”

       {¶7} As Littlejohn watched, Tate struck Patterson with the gun and knocked him

down. Tate then handed the gun to his companion, later identified as Demetrius Smith,

and began “beating” Patterson. Both assailants “were hitting him, kicking him, going

through his pockets.” The men removed Patterson’s wallet and cell phone.

       {¶8} Littlejohn called 911 as the incident took place. She told the dispatcher that

Patterson was being robbed and beaten and provided her location and a description of the

assailants. She was speaking with the dispatcher when Smith returned the gun to Tate

and the men simply walked away.

       {¶9} The incident occurred within a short distance of the headquarters of the

Cleveland Metropolitan Housing Authority (“CMHA”) police department. Thus, two

police patrol cars arrived near the scene within a minute of the incident. While CMHA

Officer Kyle Flagg spoke to Patterson and Littlejohn, officer Demetrius Jackson and his

partner officer Larry Jones noticed “less than a hundred feet” from the scene, “two men

walking northbound on [East] 55th.” The two men wore clothing that matched the

description provided of the assailants.

       {¶10} Jackson, who was driving, stopped the patrol car in front of the men and

exited; Tate “took off running.” Jones ordered Jackson to pursue Tate while he detained

Smith. Jones was in the process of escorting Smith to the patrol car when Patterson

drove up to that location. Patterson jumped out of his vehicle and exclaimed, “That’s
him. * * * I called you. * * * That’s one of them.” After identifying Smith, Patterson

found his cell phone within a few feet of the place where Jones had detained Smith.

       {¶11} In following Tate, Jackson saw him remove a gun from his waistband and

toss it “on top of an overhang” belonging to one of the houses on the street. Jackson

caught up to Tate, ordered him to stop and demanded to see his hands. Although Tate

stopped, he did not obey the other command. Jackson “then tased him.”

       {¶12} By this point, Flagg arrived at Jackson’s location to help him make the

arrest. The officers found a bag of crack cocaine in Tate’s jacket pocket. Tate also

carried over $200 in cash.

       {¶13} After Tate was placed next to Smith in the rear of Jones’s CMHA patrol car,

the two men whispered to each other briefly, then Smith stated, “All right. The gun’s

mine and the drugs is his.” Jackson and Flagg located the weapon and took it into

evidence.

       {¶14} Tate and Smith subsequently were indicted together. Tate was charged

with aggravated robbery, kidnapping, theft, drug possession, drug trafficking, possession

of criminal tools, and tampering with evidence. Three of the counts contained firearm

specifications.

       {¶15} Both defendants executed jury waivers and tried their cases to the bench.

At the conclusion of the state’s case-in-chief, the trial court granted Tate’s motion for

acquittal only as to the drug trafficking count.
       {¶16} Tate then testified in his own behalf. He claimed that he and Smith had

been called to the address to sell drugs, encountered Patterson, and, after receiving the

drugs, Patterson tried to pull out a gun. Tate stated that he and Smith tried to wrest the

gun away from Patterson; after they succeeded, they ran away.

       {¶17} The trial court found Tate guilty of the remaining charges. After the state

elected the counts that were to be merged for sentencing purposes, the court imposed a

sentence on Tate of three years for the firearm specification to be served prior to and

consecutive with five years for the aggravated robbery conviction; the other sentences

were ordered to be served concurrently.

       {¶18} Tate now appeals and presents two assignments of error for this court’s

review.

              I.   The Appellant’s convictions for aggravated robbery and

       kidnapping with firearm specifications were against the manifest weight of

       the evidence.

             II. The trial court erred in sentencing the Appellant by imposing
       more than the minimum sentence.
       {¶19} In his first assignment of error, Tate argues that the version of the incident

that he provided during his testimony is the more believable one; therefore, his

convictions for aggravated robbery and kidnapping with firearm specifications are not

supported by the manifest weight of the evidence. A review of the record does not

compel this court to agree.
       {¶20} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

¶ 25, the Ohio Supreme Court addressed the standard of review when a challenge to the

manifest weight of the evidence is presented in a criminal case, stating:

              The criminal manifest-weight-of-the-evidence standard was
       explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997-Ohio-52,
       678 N.E.2d 541. In Thompkins, the court distinguished between sufficiency
       of the evidence and manifest weight of the evidence, finding that these
       concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d
       541. The court held that sufficiency of the evidence is a test of adequacy as
       to whether the evidence is legally sufficient to support a verdict as a matter
       of law, but weight of the evidence addresses the evidence’s effect of
       inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing
       court asks whose evidence is more persuasive — the state’s or the
       defendant’s? We went on to hold that although there may be sufficient
       evidence to support a judgment, it could nevertheless be against the
       manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. “When 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.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457
       U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.


       {¶21} The weight to be given to the evidence and the credibility of the witnesses

are matters primarily for the trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus. Therefore, an appellate court may

not merely substitute its view for that of the factfinder; instead, this court must determine

whether, in resolving conflicts in the evidence, the factfinder “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.Thompkins, at 387.          Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case that the evidence weighs heavily

against the conviction.” Id. This case does not present such an “exceptional” one.

       {¶22} In this case, the state’s witnesses provided a logical, compelling account of

the incident. Patterson testified that he saw his assailants clearly, and he never wavered

in his identification of Tate as the one who held the gun on him and struck him to the

ground with it before searching his person and taking his wallet and cell phone. Littlejohn

corroborated nearly every detail of Patterson’s description of his ordeal.

       {¶23} Moreover, each of the CMHA officers provided details that also

corroborated Patterson’s and Littlejohn’s accounts. They spotted Tate mere minutes

after the incident in the same area where it occurred. Tate wore clothing that matched

the description of the suspects. When the police stopped to investigate his presence near

the scene, Tate fled.

       {¶24} Tate’s version of the events, on the other hand, was obviously self-serving.

If he and Smith were the victims of an attack by an opportunistic drug buyer as Tate

claimed, there would have been little reason for Tate to run from the officers while

Patterson stayed, and less reason to throw the gun away but not the drugs.

       {¶25} On the basis of the evidence adduced at trial, this court cannot say that the

trial court “clearly lost its way” when it found Tate guilty of aggravated robbery and

kidnapping with firearm specifications. State v. Johnson, 8th Dist. Cuyahoga No. 99656,

2013-Ohio-5430; State v. Tart, 8th Dist. Cuyahoga No. 76223, 2000 Ohio App. LEXIS

2474 (June 9, 2000). Tate’s first assignment of error, accordingly, is overruled.
      {¶26} Tate argues in his second assignment of error that his ten-year total sentence

for his convictions must be reversed because the trial court failed to provide a “specific

analysis as to its consideration of any of the statutory [sentencing] factors.” Tate’s

argument is rejected.

      {¶27} This court acknowledges that not all districts in Ohio are applying R.C.

2953.08(G)(2) to the exclusion of State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, which indicated that felony sentences are reviewed under an abuse of

discretion standard. However, this court applies the statutory standard, which requires

the appellate court to clearly and convincingly find that the sentence is contrary to law.

State v. Holmes, 8th Dist. Cuyahoga No. 99783, 2014-Ohio-603, ¶ 7, citing State v.

Kopilchak, 8th Dist. Cuyahoga No. 98984, 2013-Ohio-5016, ¶ 10.

      {¶28} A trial court has full discretion to impose a prison sentence within the

statutory range. Holmes at ¶ 8. Nevertheless, the court must still consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11, and the sentencing factors

set forth in R.C. 2929.12. Id., citing State v. Hodges, 8th Dist. Cuyahoga No. 99511,

2013-Ohio-5025, ¶ 7.

      {¶29} R.C. 2929.11 provides that a sentence imposed for a felony shall be

reasonably calculated to achieve the two overriding purposes of felony sentencing and

shall be “commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact on the victim,” while being “consistent with sentences imposed for

similar crimes committed by similar offenders.” In determining the most effective way
to comply with the purposes and principles of sentencing, the court must consider the

seriousness, recidivism, and mitigating factors set forth in R.C. 2929.12, and may

consider “any other” relevant factors.

       {¶30} R.C. 2929.11 and 2929.12 are not “fact finding” statutes. Thus, this court

may presume a trial court has considered these factors absent an affirmative

demonstration by a defendant to the contrary. Holmes, 8th Dist. Cuyahoga No. 99783,

2014-Ohio-603, ¶ 8, citing State v. Stevens, 1st Dist. Hamilton No. C-130278,

2013-Ohio-5218, ¶ 12.

       {¶31} In this case, Tate cannot overcome the presumption that the trial court

considered the appropriate statutory factors in imposing sentence. The record reflects

that the trial court heard the arguments of counsel, Tate’s version of the incident, and the

fact that Tate had no prior felony convictions. The trial court specifically stated on the

record and in its journal entry that it had considered the required factors of the law and

had concluded that Tate’s prison sentence was consistent with the purpose of R.C.

2929.11.

       {¶32} Moreover, the trial court imposed a sentence that was within the statutory

limits. As a result, this court cannot clearly and convincingly find that Tate’s sentence is

contrary to law. Tate’s second assignment of error is also overruled.

       {¶33} Tate’s convictions and sentences are affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      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 convictions 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.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR
