[Cite as State v. Brown, 2014-Ohio-5702.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2013-L-120
        - vs -                                   :

SHANIKA BROWN,                                   :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR
000221.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Lake County Court of Common Pleas. Appellant

 Shanika Brown was found guilty of two counts of robbery in violation of R.C.

 2911.02(A)(2), a second degree felony, and R.C. 2911.02(A)(3), a third degree felony.

 Brown timely appeals. She claims that her convictions are against the sufficiency and

 manifest weight of the evidence. For the following reasons, we affirm.
      {¶2}   On March 9, 2013, Drew Anderson worked at Old Navy as a loss

prevention officer trained to detect and prevent shoplifting. In determining whether a

customer is a shoplifting threat, Anderson looks for the absence of a wallet or purse on

the customer or a customer carrying a big empty purse.          In regard to customer

behavior, Anderson generally looks for customer attempts at finding an area to conceal

merchandise, selecting merchandise without regard to price, looking at cameras,

dumping hangers, removing tags, trying to get to quiet areas, and paying more

attention to security than to merchandise.

      {¶3}   On the date in question, Anderson watched Brown enter the store on the

video camera feed and saw that she did not have a purse or an outline of a wallet in

her clothing. Another clip of the video store feed shows Brown going to the girl's

department with a shopping cart full of clothes and stopping behind a rack of clothes.

The rack obscured all but her head, and according to Anderson, Brown was searching

for video cameras to determine whether this location was a safe place to conceal

various pieces of clothes.

      {¶4}   Although one cannot see Brown’s body or hands during the next several

minutes, her body is slowly shifting side to side.     Anderson claims that Brown is

concealing various pieces of clothes by hiding them in the waistband of her pants.

Eventually Brown leaves the area behind the rack and pushes her cart forward. It is

apparent from the video that her midsection appears to have significantly expanded

and the contents of her shopping cart have reduced. Anderson also claims that Brown

was taking clothes off of hanging and discarding the hangers during this time. All of

these facts led Anderson to suspect Brown of shoplifting.




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      {¶5}   After Brown left the store, Anderson ran out after her. After approximately

15-20 seconds, Anderson caught up to Brown, introduced himself as a loss prevention

officer for Old Navy and asked Brown to accompany him back to the store. When

Anderson first made contact with Brown he claimed it occurred within the first row of

cars next to the Old Navy. Brown responded that she would not come back in the

building and then ran off through the parking lot toward a restaurant called “Melt.”

Anderson ran after her keeping a 10 to 15 foot distance from her for safety. He also

informed her that he was going to call the police, a threat which he followed up on by

calling a 911 dispatcher on his cell phone. As Brown was running through the parking

lot, she began to dump some of the clothes she had taken from the store.

      {¶6}   Near the corner of Melt, Brown began to walk back toward Anderson,

causing Anderson to stop. However, upon Brown reaching Anderson she began to hit

Anderson in the check where his cell phone was located. Anderson testified that he

believed she was hitting him to prevent him from communicating with the police.

Ultimately, Brown is unsuccessful in obtaining Anderson’s cell phone and runs into

Adam Gacnik, a pedestrian who happened to be taking a smoking break near the Melt.

Both Anderson and Gacnik testified that Brown ran toward a field east of the Melt and

started to shed more Old Navy clothes with the tags still on them from under her

clothes. Brown stayed in the field until police arrived and apprehended her.

      {¶7}   Brown did not testify or call any witnesses in her defense, or testify on her

behalf.   Rather, her defense consisted of pointing out that not all of the red flags

indicating shoplifting were present, such as no store alarms went off when Brown

walked out of the store, and that she may have run away from Anderson because she

did not know him.


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      {¶8}   Because both of Brown’s assignments of error are interrelated, we review

them together. Brown asserts:

      {¶9}   “The trial court erred to the prejudice of the defendant-appellant when it

denied her motion for acquittal on two counts of robbery made pursuant to Crim.R.

29(A).

      {¶10} “The trial court erred to the prejudice of the defendant-appellant when it

returned a verdict of guilty against the manifest weight of the evidence.”

      {¶11} “In determining whether evidence is sufficient to sustain a conviction, the

reviewing court asks whether reasonable minds could differ as to whether each

material element of a crime has been proven beyond a reasonable doubt. State v.

Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978). If reasonable minds could

differ as to whether each material element has been proven, a Crim.R. 29 motion for

acquittal must be overruled. Id. at 263-64. The evidence adduced at trial and all

reasonable inferences must be viewed in the light most favorable to the state. State v.

Maokhamphiou, 11th Dist. Portage No. 2006-P-0046, 2007-Ohio-1542, ¶20.

      {¶12} “In contrast, a manifest weight challenge requires the reviewing court to

play the role of a ‘thirteenth juror.’ State v. Thompkins, 78 Ohio St.3d 380, 387, 1997

Ohio 52, 678 N.E.2d 541 (1997). A reviewing court should be cognizant of the fact that

the jury is in the best position to assess the credibility of the witnesses. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus (1967).

For an appellate court to overturn a conviction as being against the manifest weight of

the evidence, it must be found that ‘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. The discretionary power to grant a new trial should be exercised only in the


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exceptional case in which the evidence weighs heavily against the conviction.’

Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 20

Ohio B. 215, 485 N.E.2d 717 (1983).” State v. Lynch, 11th Dist. Ashtabula No. 2013-A-

0039, 2014-Ohio-1775, ¶20-21.

      {¶13} Robbery under R.C. 2911.02(A)(2) & (A)(3) is defined as follows:

      {¶14} “(A) No person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall do any of the following: * * * (2) Inflict,

attempt to inflict, or threaten to inflict physical harm on another; (3) Use or threaten the

immediate use of force against another.”

      {¶15} “Neither ‘fleeing’ nor ‘immediately’ is defined in the Revised Code. We

begin, therefore, ‘with the time-honored rule that words used by the General Assembly

are to be construed according to their common usage.’ Van Fossen v. Babcock &

Wilcox Co. (1988), 36 Ohio St.3d 100, 103, 522 N.E.2d 489. To ‘flee’ is ‘[t]o run away

from,’ ‘to try to escape,’ ‘[t]o hasten for safety,’ or ‘[t]o withdraw hastily.’ V Oxford

English Dictionary (2d Ed.1989) 1037. ‘Immediately’ means ‘[w]ith no person, thing, or

distance, intervening in time, space, order, or succession,’ or ‘[w]ithout any delay or

lapse of time.’ Id. at VII, 682. Black's Law Dictionary does not define the word ‘flee.’ It

defines ‘immediate’ as ‘[o]ccurring without delay.’ Black's Law Dictionary (8th Ed.2004)

764.” State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-4106, ¶15.

      {¶16} In Thomas, the defendant stole items from a grocery store, dropped the

bags containing the stolen items outside of the store and walked to a laundry mat. Id.

¶2. A uniformed off-duty police officer, who was working security for the grocery store

followed the defendant into the laundry mat and asked him to come back to the grocery

store. Id. The defendant complied initially; however, upon reaching the front door of


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the grocery store he headbutted the security guard and ran away. Id. The Supreme

Court overturned his conviction for robbery because a significant lapse of time occurred

between the theft and his flight, thereby negating the “immediately after” element to

robbery. Id., ¶16. The court noted that its holding was fact specific, and it noted that

“[h]ad Thomas struggled with [the security guard] in an attempt to flee immediately after

Thomas left the store, or after he dropped the stolen goods, or after being forced by

[the security guard] to return to the store, then an ensuing injury, attempt to injure, or

threat to injure might justify elevation of the offense from theft to robbery.” Id.

         {¶17} Brown’s sole contention on appeal is that the evidence was insufficient to

demonstrate that Brown assaulted Anderson immediately after the commission of the

theft.

         {¶18} However, R.C. 2911.02 prohibits a person from inflicting physical harm,

immediately after a theft offense and unlike Thomas, there is no time lapse between

the theft offense and Brown’s flight to when she inflicted physical harm. The infliction

of physical harm occurred during a continuous effort to flee that involved Brown

backtracking to accost Anderson.

         {¶19} Both assignments of error are without merit. The judgment of the Lake

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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