[Cite as State v. Collins, 2013-Ohio-5579.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99659




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      TRAVIS COLLINS
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-568552

        BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: December 19, 2013
ATTORNEY FOR APPELLANT

John T. Castele
614 West Superior Avenue, Suite 1310
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Alison Foy
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN T. GALLAGHER, J.:
      {¶1} Defendant-appellant, Travis Collins (“Collins”), appeals his robbery

convictions. We find no merit to the appeal and affirm.

      {¶2} Collins was charged with one count of aggravated robbery, one count of

felonious assault, two counts of robbery, and one count of having a weapon while under

disability. At a bench trial, the victim, Oliver Cardona (“Cardona”), testified that on

October 30, 2012, he took the bus from his home to West 25th Street where he cashed his

paycheck at a bank. He subsequently paid his gas bill and purchased a bucket of chicken

from KFC. He had approximately $700 on his person after paying his gas bill.

      {¶3} Cardona intended to take the bus back home, but missed the bus and decided

to stop for drinks at the Ice Box Tavern (“Ice Box”). While he was sitting at the bar,

Collins walked in and the bartender, Theresa Fatica (“Fatica”), told him to leave because

he was banned from the bar. Collins exited the building only to return moments later.

While Collins was inside the bar, Cardona walked to the jukebox to choose some music,

and Fatica again instructed Collins to leave. As Cardona walked back to his seat, Collins

insulted him before leaving the bar. After this brief exchange, Cardona remained at the

bar and had a few more drinks before asking Fatica to call a cab.

      {¶4} Cardona asked the cab driver to stop at a gas station to buy cigarettes. At

some point, Collins entered the cab with Cardona.         Cardona testified that he was

counting his money to set some aside to pay for cigarettes and the cab ride when he

suddenly felt something hard hit the right side of his head on the temple, and Collins

grabbed his money. The two men were struggling when the cab pulled into a nearby gas
station. The cab door opened, and the two men spilled out of the door and onto the

ground where they continued to wrestle. Bystanders broke up the fight, which was

captured on the gas station’s surveillance camera.       According to Cardona, Collins

escaped with his money.

      {¶5} Cardona returned to the Ice Box, and Fatica called the police.          Fatica

testified that only 11 minutes elapsed from the time Cardona left in the cab and the time

he returned. When Cardona re-entered the bar, his shirt was inside out and soaking wet,

and Fatica noticed a large bump near his temple. His face was red and “all scratched and

muddy.” Fatica testified that Cardona was “frantic,” appeared “afraid,” “shaken,” and

“confused,” and reported that Collins had robbed him.

      {¶6} Detective John Lally (“Det. Lally”) responded to the Ice Box and met with

Cardona, who explained what happened and gave Det. Lally a description of Collins’s

appearance. Cardona and Lally drove around the neighborhood looking for the suspect.

They stopped at the gas station and viewed the surveillance video and obtained the cab

driver’s name from the cab company. On the way back to the Ice Box, Cardona observed

Collins walking toward the Ice Box at the intersection of Walton Avenue and West 25th

Street. They followed Collins back to the Ice Box where Det. Lally arrested him.

      {¶7} Collins, who testified in his own defense, stated that after being asked to

leave the Ice Box, he searched for a “dope boy” to buy a rock of crack. A short time

later, as Collins was walking back to the Ice Box, he observed Cardona getting into a taxi

van. Cardona saw Collins, asked “What’s up?” and invited him into the cab. Collins
testified that on the way to the gas station, he showed Cardona a rock of crack hoping

Cardona would be interested in buying crack because the dealer offered Collins a free

rock if he referred a new customer.

       {¶8} According to Collins, Cardona snatched the crack out of his hand and put it in

his mouth. Collins told Cardona that it was not for sale and that he wanted it back, but

Cardona refused to return the crack and a physical altercation ensued.         In the end,

Cardona never returned the crack but gave Collins $18. Collins got back in the cab and

drove away but later bought another rock of crack for $18, which he smoked shortly

before his arrest.

       {¶9} Based on this evidence, the court found Collins guilty of two counts of

robbery in violation of R.C. 2911.02(A)(2) and 2911.01(A)(3) and not guilty of

aggravated robbery, felonious assault, and having weapons while under disability. It also

found Collins not guilty of any of the firearm specifications. The court merged the two

robbery convictions and sentenced Collins to a three-year prison term for robbery in

violation of R.C. 2911.02(A)(2). This appeal followed.

       {¶10} In his sole assignment of error, Collins argues the guilty verdict was against

the manifest weight of the evidence. A challenge to the manifest weight of the evidence

attacks the verdict in light of the state’s burden of proof beyond a reasonable doubt.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997).              When

reviewing a claim that the judgment was against the manifest weight of the evidence, we

review the entire record, weigh both the evidence and all the reasonable inferences,
consider the credibility of witnesses and 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. Id. at ¶ 387.

Therefore, an appellate court will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances to correct a manifest miscarriage of justice,

and only when the evidence presented at trial weighs heavily in favor of acquittal. Id.

       {¶11} Collins was convicted of robbery in violation of R.C. 2911.02(A)(2), which

states that “[n]o person, in attempting to commit a theft offense or in fleeing immediately

after the attempt or theft offense shall * * * inflict * * * or threaten to inflict physical

harm on another.”

       {¶12} Collins contends the inconsistencies between Cardona’s testimony and the

other witnesses’ testimony “cast a large shadow of doubt on the veracity of [Cardona’s]

testimony.” He also argues Cardona was highly intoxicated and the inconsistencies in

his testimony coupled with his impaired condition rendered his testimony less than

credible.

       {¶13} We agree there were inconsistencies in some of the witnesses’ testimony.

Cardona testified that Collins flagged the cab down. Collins testified that Cardona

invited him into the cab. The cab driver testified that the cab was already moving when

Cardona opened the door and “hollered” at Collins. Nevertheless, it is undisputed that

Collins was in the cab with Cardona and the surveillance video from the gas station

showed Cardona and Collins fall out of the van in the midst of a struggle.
        {¶14} Cardona testified that Collins hit him on the temple on the right side of his

head and robbed him of his money. Cardona’s testimony, if believed, established that

Collins inflicted physical harm on him while committing a theft offense. Fatica and Det.

Lally corroborated this testimony, stating that they observed a large bump on the side of

Cardona’s face near the temple. Fatica also stated that Cardona’s face was “all scratched

and muddy.” Fatica testified that only 11 minutes passed between the time Cardona left

the Ice Box and the time he returned. When he returned, he was “frantic,” appeared

“afraid,” and reported that Collins had just robbed him. Thus, Cardona reported the

robbery while still under the stress caused by the event and his statements constituted an

“excited utterance” as defined by Evid.R. 803(2).1

        {¶15} Excited utterances are admissible as an exception to the hearsay rule

because they are “the product of reactive rather than reflective thinking and thus, are

believed inherently reliable.”         State v. Ducey, 10th Dist. Franklin No. 03AP-944,

2004-Ohio-3833, ¶ 17, citing State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316

(1993). “Reactive excited statements are considered more trustworthy than hearsay

generally on the dual grounds that, first, the stimulus renders the declarant incapable of

fabrication and, second, the impression on the declarant’s memory at the time of the

statement is still fresh and intense.” Taylor at 300, quoting Weissenberger, Evidence,



        1   Evid.R. 803(2) defines an “excited utterance” as a “statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.”
Section 803.16, at 1 (1992).      Therefore, Fatica’s testimony corroborated Cardona’s

testimony.

       {¶16} The court explained on the record that it did not find Collins’s testimony

credible. Collins admitted that he purchased crack cocaine before the robbery occurred

and that he smoked crack before he was arrested. Evidence of Collins’s prior robbery

and drug convictions were admitted into evidence. Indeed, Collins admitted during trial

that he had a significant drug problem. Collins also admitted that even though he was

banned from the Ice Box for having caused trouble there in the past, he continuously

“cuts through” the bar “to check on the ladies.” When Collins’s testimony is weighed

against Cardona’s testimony, which was corroborated by two other disinterested

witnesses, it is reasonable that the trial court chose to believe Cardona’s version of the

events. We therefore cannot say the trial court clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed.

       {¶17} Accordingly, we overrule the sole assignment of error.

       {¶18} Judgment 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 conviction having

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

pleas 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.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
