[Cite as State v. Sullivan, 2012-Ohio-4358.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :     Hon. William B. Hoffman, J.
                                               :     Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :
LEONARD M. SULLIVAN                            :     Case No. 12CAA020009
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 11CRI040237A



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    September 24, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DOUGLAS DUMOLT                                       O. ROSS LONG
140 North Sandusky Street                            125 North Sandusky Street
Third Floor                                          Delaware, OH 43015
Delaware, OH 43015
Delaware County, Case No. 12CAA020009                                                  2

Farmer, J.

      {¶1}   On April 22, 2011, the Delaware County Grand Jury indicted appellant,

Leonard Sullivan, on two counts of aggravated robbery in violation of R.C. 2911.01, one

count of theft in violation of R.C. 2913.02, and two counts of conspiracy in violation of

R.C. 2923.01. Said charges arose from the robbery of Sabrina Terry of deposit bags

which she had just picked up from two different McDonald's restaurants to transport to

the bank. Appellant was the morning manager of the first McDonald's restaurant, and

was the brother of Adam Sullivan who was involved in the robbery with Hubert Chafins

and Kenneth Page. Appellant was accused of texting/telephoning Adam and informing

him of who the courier would be.

      {¶2}   A jury trial commenced on November 9, 2011. At the conclusion of the

state's case-in-chief and again at the conclusion of the case, appellant moved for a

Crim.R. 29 motion for acquittal. The motions were denied. The jury found appellant

guilty as charged. By judgment entry filed February 14, 2012, the trial court merged the

counts and sentenced appellant to five years in prison.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

BY DENYING APPELLANT'S RULE 29 MOTION AT THE CLOSE OF BOTH THE

STATE'S EVIDENCE AND AT THAT CLOSE OF THE DEFENSE EVIDENCE."
Delaware County, Case No. 12CAA020009                                                    3


                                              II

         {¶5}   "THE APPELLANT'S CONVICTION FOR ROBBERY IS UNSUPPORTED

BY SUFFICIENT EVIDENCE."

                                              III

         {¶6}   "THE APPELLANT'S CONVICTION FOR ROBBERY IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

                                           I, II, III

         {¶7}   Appellant claims the trial court erred in denying his motions for acquittal

pursuant to Crim.R. 29, and the verdict was against the sufficiency and manifest weight

of the evidence. We disagree.

         {¶8}   Because all three assignments involve a review of the evidence, we will

discuss them jointly.

         {¶9}   Crim.R. 29 governs motion for acquittal.       Subsection (A) states the

following:

         {¶10} "The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of acquittal of one

or more offenses charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses. The court may not

reserve ruling on a motion for judgment of acquittal made at the close of the state's

case."

         {¶11} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus:
Delaware County, Case No. 12CAA020009                                                     4


       {¶12} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions

as to whether each material element of a crime has been proved beyond a reasonable

doubt."

       {¶13} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

       {¶14} We note circumstantial evidence is that which can be "inferred from

reasonably and justifiably connected facts." State v. Fairbanks (1972), 32 Ohio St.2d

34, paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain,

satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353,
Delaware County, Case No. 12CAA020009                                                     5


1992-Ohio-44. It is to be given the same weight and deference as direct evidence.

Jenks, supra.

       {¶15} Appellant was convicted of two counts of aggravated robbery in violation

of R.C. 2911.01, one count of theft in violation of R.C. 2913.02, and two counts of

conspiracy in violation of R.C. 2923.01.       Pursuant to R.C. 2941.25, the trial court

merged the counts and sentenced appellant on Count 2, aggravated robbery:

       {¶16} "(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:

       {¶17} "(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;

       {¶18} "(2) Have a dangerous ordnance on or about the offender's person or

under the offender's control;

       {¶19} "(3) Inflict, or attempt to inflict, serious physical harm on another."

       {¶20} Appellant does not contest the fact that the aggravated robbery of Sabrina

Terry occurred and that Hubert Chafins and Kenneth Page were involved in the crime.

Appellant also appears not to contest that his brother Adam was involved.              What

appellant does contest is the sole evidence that the state contends connects him to the

crime: text and telephone messages between him and his brother made at the time of

robbery. Appellant argues it is only "conjecture and speculation" that connects him to

the crime. Appellant's Brief at 18. Appellant argues although there was direct testimony

about the robbery, the jury was called upon to make an inference upon an inference in
Delaware County, Case No. 12CAA020009                                                    6


determining that he was the "inside man" who set up the robbery and informed his

brother Adam of the deposit procedures and the descriptions of the courier and her

vehicle.

       {¶21} Apart from appellant's testimony wherein he denied involvement in the

robbery, all the evidence was presented in the state's case-in-chief.

       {¶22} The direct evidence established that Adam, Mr. Chafins, and Mr. Page

staked out the first McDonald's on Orion until the courier, Sabrina Terry, was seen

leaving. T. at 158-159, 178, 189. They knew her by a description given to them of her

vehicle. T. at 158, 178, 189. They followed Ms. Terry and when she completed her

second pick up at the Gemini McDonald's, Mr. Page robbed her at gunpoint. T. at 160,

179-180. The identity and description of the courier and her vehicle were unknown until

the time immediately preceding the first pick up. T. at 155, 157, 167, 178, 189. The

three then proceeded to Mr. Chafins's house to split the proceeds four ways, as Adam

took one-fourth of the proceeds for the "other guy." T. at 161-162, 182.

       {¶23} It is the state's position that the "other guy" was appellant. To support this

theory is the testimony of the courier, Ms. Terry. Ms. Terry was a former employee of

McDonald's who on the day of the robbery, was filling in for the usual money courier. T.

at 16. She had not done it in the recent past. As a money courier, she wore regular

clothes, not a McDonald's uniform, and was driving her own vehicle. T. at 19, 167. To

anyone staking out the McDonald's, they would have no prior knowledge of her or her

vehicle. No one would be able to identify her as the money courier except that the

normal Monday morning procedure included a money pick up. T. at 19, 30. Ms. Terry

carried the money in an oversized "Jessica Simpson" bag. T. at 19. Her first stop was
Delaware County, Case No. 12CAA020009                                                   7


to the Orion McDonald's wherein appellant was the morning supervisor. T. at 19-21.

Her second stop was the Gemini McDonald's. T. at 28-29.

       {¶24} Appellant's brother Adam was the initiator of the plan to rob the courier for

McDonald's. T. at 168. Adam, Mr. Chafins, and Mr. Page met at 8:30 a.m. and about

fifteen minutes later, drove to the Orion McDonald's to wait and watch for the courier. T.

at 155-156. Ms. Terry arrived at the Orion McDonald's between 10:00/10:30 a.m. T. at

19. Adam and appellant texted at 8:27/8:29 a.m. and several more times between 9:52

a.m. and 10:26 a.m. T. at 86, 92-93, 135; State's Exhibit 9. At 10:28 a.m., appellant

called Adam, almost an hour and a half before the robbery, and then they texted at

10:46/10:47 a.m. and again at 12:25/12:27 p.m., approximately twenty minutes after the

robbery.   T. at 101; State's Exhibit 9.    The mapping of the cell phone towers and

telephone calls established Adam and Mr. Chafins were in the area of the robbery at the

time in question and appellant was at the Orion McDonald's. T. at 103-104; State's

Exhibit 10. Adam was on the telephone with someone just prior to telling Mr. Chafins

the description of the courier's vehicle. T. at 167.

       {¶25} It is clear from the direct evidence that Adam, Mr. Chafins, and Mr. Page

did not know the identity of the courier. They only way they could have known was with

some inside information. The police immediately suspected there was an inside person,

but eliminated the owners and Ms. Terry and her boyfriend. T. at 65, 67-68. The only

suspects left were the employees at the Orion McDonald's. The only person at the

Orion McDonald's who was in constant contact with Adam was appellant.
Delaware County, Case No. 12CAA020009                                                  8


       {¶26} We find the sufficient credible direct evidence, coupled with the

circumstantial evidence, leads to the identity of appellant as the fourth suspect and the

insider who supplied the information about the identity of the courier.

       {¶27} Upon review, we find the trial court did not err in denying appellant's

Crim.R. 29 motions for acquittal, and find no manifest miscarriage of justice.

       {¶28} The sole assignment of error is denied.

       {¶29} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




                                             s / Sheila G. Farmer_______________



                                             _s/ W. Scott Gwin________________



                                             s/ William B. Hoffman_____________

                                                            JUDGES



SGF/sg
[Cite as State v. Sullivan, 2012-Ohio-4358.]


                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
LEONARD M. SULLIVAN                            :
                                               :
        Defendant-Appellant                    :        CASE NO. 12CAA020009




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                               s / Sheila G. Farmer_______________



                                               _s/ W. Scott Gwin________________



                                               s/ William B. Hoffman_____________

                                                           JUDGES
