[Cite as State v. Jordan, 2013-Ohio-4172.]


STATE OF OHIO                     )                      IN THE COURT OF APPEALS
                                  )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                            C.A. No.    26598

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
MICHAEL D. JORDAN                                        COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellant                                        CASE No.   CR 12 03 0590 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: September 25, 2013



CARR, Judge.

        {¶1}     Appellant Michael Jordan appeals his conviction in the Summit County Court of

Common Pleas. This Court affirms.

                                                    I.

        {¶2}     Minutes after Jordan helped Sharda Elmore load two large boxed flat screen

televisions onto a shopping cart in WalMart, Elmore pushed the cart out of the store without

paying for the televisions as Jordan engaged the store’s elderly greeter in conversation. Jordan

was later indicted on one count of theft of property worth $1000.00 or more but less than

$7500.00, a felony of the fifth degree. He pleaded not guilty and the matter was tried to a jury

that found him guilty. The trial court sentenced him to 12 months in prison. Jordan appealed

and raises four assignments of error for review. This Court consolidates some assignments of

error and rearranges others to facilitate review.
                                                2


                                               II.

                                ASSIGNMENT OF ERROR I

       THE STATE OF OHIO FAILED TO ESTABLISH BEYOND A REASONABLE
       DOUBT WHEN VIEWED BY THE MANIFEST WEIGHT OF THE
       EVIDENCE THAT MICHAEL D. JORDAN EITHER PARTICIPATED OR
       WAS AN ACCOMPLICE IN THE THEFT AT THE WALMART STORE;
       THERE IS INSUFFICIENT EVIDENCE TO SUPPORT MR. JORDAN’S
       CONVICTION OF THEFT AND THUS APPELLANT’S CONVICTION IS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED ON
       INSUFFICIENT EVIDENCE AS PERTAINS TO THE FINDING THAT HE
       COMMITTED THEFT. THE COURT ERRED IN OVERRULING MR.
       JORDAN’S RULE 29 MOTION FOR ACQUITTAL.

                                ASSIGNMENT OF ERROR II

       THE COURT ERRED IN DENYING DEFENDANT’S CRIMINAL RULE 29
       MOTION FOR ACQUITTAL ON THIS CHARGE.

       {¶3}    Jordan argues that his conviction was not supported by sufficient evidence, that

the trial court erred by denying his motions for acquittal pursuant to Crim.R. 29, and that his

conviction was against the manifest weight of the evidence. This Court disagrees.

       {¶4}    Jordan was charged with theft in violation of R.C. 2913.02(A)(1) which provides:

“No person, with purpose to deprive the owner of property or services, shall knowingly obtain or

exert control over either the property or services * * * [w]ithout the consent of the owner or

person authorized to give consent[.]” Pursuant to R.C. 2901.22(A): “A person acts purposely

when it is his specific intention to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is his specific intention to engage in conduct of that nature.” “A person

acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause

a certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
                                                   3


       {¶5}    “Deprive” means to do any of the following:

       (1) Withhold property of another permanently, or for a period that appropriates a
       substantial portion of its value or use, or with purpose to restore it only upon
       payment of a reward or other consideration;

       (2) Dispose of property so as to make it unlikely that the owner will recover it;

       (3) Accept, use, or appropriate money, property, or services, with purpose not to
       give proper consideration in return for the money, property, or services, and
       without reasonable justification or excuse for not giving proper consideration.

R.C. 2913.01(C). An “owner” is “any person, other than the actor, who is the owner of,

who has possession or control of, or who has any license or interest in property or

services, even though the ownership, possession, control, license, or interest is unlawful.”

R.C. 2913.01(D).

       {¶6}    Theft from a retail establishment is completed not only upon the

defendant’s leaving the premises with the merchandise. State v. Cadle, 9th Dist. Summit

No. 24064, 2008-Ohio-3639, ¶ 7. This Court, along with several others, has recognized

that “[t]he state need only prove that appellant exerted control over the merchandise with

the intent to deprive the store owner of its property, regardless of whether [the defendant]

was still in the store. The slightest act of removal or hiding of property, coupled with the

requisite intent, is a sufficient asportation in the eyes of the law.” (Alteration in original.)

Id., quoting State v. Arthur, 4th Dist. Scioto No. 01CA2818, 2002-Ohio-3764, ¶ 17, and

citing State v. McGhee, 6th Dist. Lucas No. L-06-1210, 2007-Ohio-6527, ¶ 23; State v.

Bean, 2d Dist. Montgomery Nos. 22035, 22036, 2007-Ohio-6132, ¶ 19-20; State v. Peak,

11th Dist. Lake No. 2004-L-124, 2005-Ohio-6422, ¶ 33-34; State v. Randazzo, 8th Dist.

Cuyahoga No. 79667, 2002-Ohio-2250, ¶51; State v. Dozier, 2d Dist. Montgomery No.

11398, 1989 WL 150805 (Dec. 12, 1989). The intent to deprive the owner of the
                                                 4


property may be established by circumstantial evidence. Cadle at ¶ 7, citing Arthur at ¶

17.

       {¶7}    The jury was further instructed that it could consider whether Jordan acted in

complicity with another in committing the theft, i.e., whether Jordan aided or abetted another in

committing the theft. See R.C. 2923.03(A)(2). A person who is guilty of complicity is guilty as

if he were the principal offender. R.C. 2923.03(F). A criminal defendant may be charged with

complicity pursuant to the complicity statute or simply in terms of the principal offense. Id.

       Sufficiency of the evidence

       {¶8}    Crim.R. 29 provides, in relevant part:

       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.

       {¶9}    “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In

reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is whether, after

viewing the evidence in the 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.” Diar

at ¶ 113, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus,

following Jackson v. Virginia, 443 U.S. 307 (1979).

       {¶10} Deputy Nancy Mundy of the Summit County Sheriff’s Department testified that

one of her duties includes recording telephone calls made by inmates housed in the county jail.

She explained the method used to ensure proper identification of all inmate calls. She further
                                                 5


explained that all calls are recorded for purposes of safety, security, and collecting information;

and that inmates are notified at the beginning of every call that their call is being recorded.

Deputy Mundy authenticated a compact disc of telephone calls made by Jordan from jail, and

parts of two calls were played for the jury. In one call, Jordan explained to a child on the other

end of the phone call that he was in jail because he was bad. In the other call, he admitted

helping Elmore load televisions onto a shopping cart and later picking Elmore up in his car after

Elmore ran away from the store after being stopped by a WalMart asset protection associate.

Jordan told the woman on the other end of the phone that he had gone through one of the store’s

checkout registers and paid for a Sprite and a Take Five candy bar before being informed by

store security that Elmore had attempted to pay for the televisions with a fraudulent credit card.

       {¶11} Chad Gibson testified that he was working as an asset protection associate at the

Macedonia, Ohio, WalMart around noon on February 15, 2012, when he noticed three men,

including Jordan, enter the store and walk to the electronics department. Mr. Gibson, who was

wearing street clothes, followed and observed the men based on his suspicions that they may be

shoplifters. He testified that he saw Jordan help Elmore lift a 42-inch and a 46-inch television

onto a shopping cart. Mr. Gibson went to the next aisle and waited for the two men to leave the

area. After hearing some muffled sounds, Mr. Gibson watched Jordan join up with the third

man, Yushon White, and walk down an aisle toward the front of the store. He watched Elmore

push the cart with the televisions down another aisle towards the front of the store. As all three

men reached the front of the store near the exit, Mr. Gibson saw Jordan engage the elderly store

greeter in conversation and direct his attention to a display so that his back remained to the exit.

Mr. Gibson then saw Elmore push the cart with the television sets out the store exit door. Mr.

Gibson testified that he ran after Elmore, who abandoned the shopping cart with the televisions
                                               6


on the sidewalk outside the store. He testified that Elmore fled the scene on foot. Mr. Gibson

asked to speak to Jordan and White, who had also exited the store, but Jordan responded, “Who

me?” and “Not me.” Jordan and White walked to a car in the parking lot and drove away.

       {¶12} Mr. Gibson testified that he downloaded store surveillance video footage from

February 15, 2012, to a DVD. The State played the DVD for the jury. The video showed Jordan

and White entering the store together at 11:57 a.m. and walking to the electronics department.

There was no camera footage of Jordan helping Elmore load televisions onto a cart because no

cameras were directed to that specific area, but Mr. Gibson testified that he personally observed

that. Mr. Gibson testified that Jordan and Elmore were in the electronics area together at 12:02

p.m. The video footage showed Jordan and Elmore standing together in electronics and talking

as Elmore held onto a shopping cart with televisions on it. The video further showed Jordan and

White walking toward the front of the store via one aisle, as Elmore pushed the cart toward the

front of the store via another aisle at 12:04 p.m. At 12:05 p.m. on the video, Elmore was seen

walking towards the general merchandise exit as White walked behind him. At 12:06 p.m. on

the video, Jordan was seen engaging the elderly store greeter in conversation and directing him

down a side aisle away from the exit to a product display, as White stood at the greeter’s back,

turning to watch as Elmore walked behind the greeter and pushed the cart with the televisions out

the exit door. The video further showed Mr. Gibson abandoning his own shopping cart and

running after Elmore. Jordan was then seen walking out of the store. There is no video footage

showing that Jordan stopped at any checkout register to pay for any item. Video footage from

outside the store and in the parking lot showed Elmore running away through the parking lot as

Jordan and White walked casually to a car. Mr. Gibson was then seen pushing the cart with the

televisions back inside the store.
                                                  7


       {¶13} Mr. Gibson testified that neither Elmore, nor Jordan, nor White ever went through

any checkout line to pay for the televisions. He further testified that none of the three men had

permission to take the televisions without paying for them. Nor did any of the three men make

any attempt after leaving the store to reenter and pay for the televisions.

       {¶14} Mr. Gibson authenticated a WalMart training receipt, i.e., an invalid receipt used

by the store to obtain the value of items stolen from the store. The receipt reflected the value of

the two televisions at issue in this incident. The Vizio M420SV television in Elmore’s cart had a

value of $698.00, while the 46-inch Samsung television had a value of $1098.00, for a total value

of $1796.00.

       {¶15} Detective Donavin Paquette of the Macedonia police department testified that

around noon on February 15, 2012, he responded to a call from WalMart loss prevention about a

theft in progress. He testified that the dispatcher advised him that three suspects exited the

WalMart, and that two of them drove away toward state route 82, north of the store, in a maroon

Ford Fusion with Florida license plates. Within a minute, Detective Paquette initiated a traffic

stop of a maroon Ford Fusion with Florida license plates less than one quarter of a mile from the

store. He confirmed the identities of the now-three occupants of the car: Jordan was driving,

White was the front seat passenger, and Elmore was the back seat passenger.

       {¶16} In investigating the incident, Detective Paquette interviewed Mr. Gibson,

reviewed the store security video, and attempted to interview Jordan and Elmore. Based on his

investigation, and considering the interaction of Jordan and Elmore in WalMart, Elmore’s flight

from the scene, Jordan’s and White’s refusal to speak with the loss prevention associate at

WalMart, and Elmore’s occupancy in Jordan’s car after the incident within a short distance from
                                                 8


the store, the detective charged Jordan and Elmore with theft. When Detective Paquette testified,

he was not aware of the disposition of Elmore’s case.

       {¶17} Jordan moved for a judgment of acquittal at the close of the State’s case in chief,

and the trial court denied the motion. He then rested without presenting any evidence and

renewed his Crim.R. 29 motion, which the court denied.

       {¶18} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found that the essential elements of the charge

of complicity to commit theft were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d

at paragraph two of the syllabus.    The State presented evidence that Jordan assisted Elmore in

loading television sets onto a shopping cart at WalMart. The two then had a short conversation

before leaving the electronics department via separate aisles and meeting again near the store

exit. Mr. Gibson’s testimony that Jordan distracted the store greeter near the exit as Elmore

pushed the shopping cart out of the store was corroborated by store security video. Accordingly,

the State presented sufficient evidence of the crime of theft.

       Manifest weight of the evidence

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review 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 trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a “thirteenth
       juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.
                                               9


State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, at ¶ 5. This discretionary

power should be exercised only in exceptional cases where the evidence presented weighs

heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.


       {¶19} Jordan did not present a case in chief and he did not cross-examine Deputy

Mundy.

       {¶20} Mr. Gibson conceded that it is not unusual for people to help one another lift

heavy items like televisions onto shopping carts. Mr. Gibson estimated that the televisions at

issue were between thirty and fifty pounds each and the boxes measured two feet by three feet

and three feet by four feet. He further conceded that he personally could not see what Jordan and

Elmore were doing in the next aisle over from where Mr. Gibson positioned himself after Jordan

and Elmore loaded the televisions, although the store security video captured the two talking

together. Mr. Gibson could not hear their conversation and, therefore, did not hear the two

making any plans to steal the televisions.

       {¶21} A thorough review of the record indicates that this is not the exceptional case

where the evidence weighs heavily in favor of Jordan. The weight of the evidence supports the

conclusion that he assisted Elmore’s theft of the televisions. The evidence demonstrated that

Jordan helped Elmore load the televisions onto a shopping cart, and that he distracted the store

greeter as Elmore pushed the cart out the exit. Jordan abandoned the televisions on the sidewalk

outside the store after being confronted by Mr. Gibson. Jordan refused to speak with Mr. Gibson

and walked to a car. Within a minute of Jordan’s leaving the store parking lot with only White,

the police stopped Jordan’s car. By that time, Jordan had picked up Elmore after his flight from

the scene, evidencing their relationship and raising the reasonable inference that the two had
                                                10


planned to work together to steal the televisions. Accordingly, Jordan’s conviction for theft is not

against the manifest weight of the evidence.

       {¶22} Jordan’s first and second assignments of error are overruled.

                                ASSIGNMENT OF ERROR IV

       THE COURT ERRED IN NOT CHARGING THE JURY ON A LESSER
       INCLUDED OFFENSE OF ATTEMPTED THEFT AND SUCH FAILURE IS
       PLAIN ERROR.

       {¶23} Jordan argues that the trial court committed plain error by failing to instruct the

jury on the lesser included offense of attempted theft. This Court disagrees.

       {¶24} This Court has long held that “an appellate court will not consider as error any

issue a party was aware of but failed to bring to the trial court’s attention[]” at a time when the

trial court might have corrected the error. State v. Dent, 9th Dist. Summit No. 20907, 2002-

Ohio-4522, ¶ 6. “[F]orfeiture is a failure to preserve an objection[.] * * * [A] mere forfeiture

does not extinguish a claim of plain error under Crim.R. 52(B).” (Internal citations omitted.)

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. Pursuant to Crim.R. 52(B), “[p]lain

errors or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.” To constitute plain error, the error must be obvious and have a

substantial adverse impact on both the integrity of, and the public’s confidence in, the judicial

proceedings. State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). A reviewing court

must take notice of plain error only with the utmost caution, and only then to prevent a manifest

miscarriage of justice. State v. Bray, 9th Dist. Lorain No. 03CA008241, 2004-Ohio-1067, ¶ 12.

This Court may not reverse the judgment of the trial court on the basis of plain error unless

Jordan has established that the outcome of the trial clearly would have been different but for the
                                                11


alleged error. State v. Kobelka, 9th Dist. Lorain No. 01CA007808, 2001-Ohio-1723, citing State

v. Waddell, 75 Ohio St.3d 163, 166 (1996).

       {¶25} R.C. 2945.74 enunciates the lesser included offense doctrine and states: “The jury

may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if

such attempt is an offense at law. When the indictment or information charges an offense,

including different degrees, or if other offenses are included within the offense charged, the jury

may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or

lesser included offense.” See also Crim.R. 31(C).

       {¶26} The Ohio Supreme Court has enunciated the following test:

       The question of whether a particular offense should be submitted to the finder of
       fact as a lesser included offense involves a two-tiered analysis. State v. Evans,
       122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 13. The first tier, also called the
       “statutory-elements step,” is a purely legal question, wherein we determine
       whether one offense is generally a lesser included offense of the charged offense.
       State v. Kidder, 32 Ohio St.3d 279, 281 (1987). The second tier looks to the
       evidence in a particular case and determines whether “‘a jury could reasonably
       find the defendant not guilty of the charged offense, but could convict the
       defendant of the lesser included offense.’” Evans at ¶ 13, quoting Shaker Hts. v.
       Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, ¶ 11. Only in the second tier of
       the analysis do the facts of a particular case become relevant.

State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, ¶ 6.

       {¶27} Jordan argues that the trial court erred by failing to instruct on the lesser included

offense of attempted theft. Attempt crimes constitute lesser offenses. See State v. Pleban, 9th

Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 9. This Court has written that, “if during the

course of trial the defendant presents sufficient evidence that his conduct was unsuccessful in

constituting the indicted offense, an instruction to the jury on attempt would be proper.” Id.,

quoting State v. Deem, 40 Ohio St.3d 205, 208 (1988).
                                                12


       {¶28} Jordan argues that the evidence established that his conduct, at most, rose to the

level of attempted theft because there was no evidence that he deprived, as that term is defined,

WalMart of the televisions. Jordan misunderstands the essential elements of the crime of theft.

Pursuant to R.C. 2913.02(A)(1), a defendant need only have “purpose” to deprive the owner of

property; he need not actually permanently withhold or dispose of the property. The evidence

established that Jordan helped Elmore load the televisions onto a cart and then distracted the

store greeter to allow Elmore to leave the store with the televisions without paying for them.

Accordingly, the evidence established that Jordan acted with the requisite purpose to deprive

WalMart of its property, i.e., appropriate the televisions. Moreover, Elmore left the physical

premises of the store with the televisions without paying for them and without any indication that

he would return to pay for them. Instead, he fled when Mr. Gibson attempted to question him.

Jordan, too, left the premises without indicating that he would return to the store to pay for the

televisions. Jordan’s theft was completed upon Elmore’s moving the televisions throughout the

store with the intent to deprive WalMart of that property. Cadle at ¶ 7; see also Peak, 2005-

Ohio-6422, at ¶ 34 (“The law does not require the store to wait until a defendant leaves the

premises with merchandise to apprehend a suspect for shoplifting.”). Under these circumstances,

a jury could not reasonably find Jordan not guilty of theft but guilty of the lesser offense of

attempted theft. Jordan’s fourth assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING MR.
       JORDAN TO A MAXIMUM SENTENCE. THIS SENTENCE WAS A GREAT
       DISPARITY OF THE SENTENCE GIVEN THE CO-DEFENDANT IN THIS
       CASE.

       {¶29} Jordan argues that the trial court abused its discretion by sentencing him to the

maximum term of 12 months because it did not sufficiently consider (1) the statutory purposes
                                                 13


and principles of sentencing, (2) the statutory seriousness and recidivism factors, and (3) the

disparity between Jordan’s and Elmore’s sentences. This Court disagrees.

       {¶30} Jordan does not argue that the trial court did not consider the statutory factors in

R.C. 2929.11(A) (regarding the purposes of felony sentencing), R.C. 2929.11(B) (requiring

consistency in “sentences imposed for similar crimes committed by similar offenders”), and R.C.

2929.12 (regarding seriousness of the conduct and likelihood of recidivism).             Instead, he

effectively argues that the court’s findings were “not supported in sound discretion,” i.e., that the

court’s application of those factors to the facts was unreasonable. This Court continues to

recognize that a trial court, after proper adherence to applicable rules and statutes, retains

discretion in the imposition of sentences. State v. Weems, 9th Dist. Summit No. 26532, 2013-

Ohio-2673, ¶ 18-19.

       {¶31} Jordan’s argument is not supported by the record. First, the trial court proceeded

directly to sentencing after the jury found Jordan guilty upon defense counsel’s assertion that a

presentence investigation report was not necessary and upon Jordan’s assertion that he wished to

immediately proceed to sentencing. Accordingly, Jordan effectively requested that the trial court

proceed to sentencing in the absence of additional information that might have affected the trial

court’s consideration of the relevant statutory factors. He cannot now be heard to complain that

additional information might have compelled the trial court to impose a less severe sanction.

       {¶32} Second, defense counsel did not challenge the State’s recitation of Jordan’s

criminal history, including 13 prior felony theft convictions; 6 misdemeanor theft convictions;

numerous pending felonies, including theft charges, in other jurisdictions; and numerous prior

incarcerations in both state and federal prisons. Defense counsel argued that probation for

Jordan was appropriate given that Elmore only received probation for his role in this theft. She
                                                14


conceded, however, that she did not know the details of Elmore’s criminal history. Jordan

himself told the court during sentencing that “My past speaks for itself[.]”

       {¶33} Based on the circumstances of Jordan’s conduct in the instant case, coupled with

his criminal history and apparent complacency with regard to that history, the trial court found

that the maximum sentence was necessary to protect the public and that it would not place an

unnecessary burden on state and local resources. In addition, the trial court expressly stated that

it was not imposing a 12-month sentence as a penalty for Jordan’s exercising his right to trial, but

rather that the sentence was “reflective of Mr. Jordan’s criminal history and also for his inability

to take responsibility for any of these actions.” This Court cannot conclude that the trial court

did not sufficiently consider the appropriate statutory factors or that its findings were

unreasonable.

       {¶34} Moreover, there is nothing in the record to indicate that the court imposed a

disparate sentence. Jordan’s argument at sentencing that Elmore’s actions were worse than his

because he was not the one who pushed the televisions out of the store ignores the legal principle

that a complicitor is equally as culpable as a principal offender. R.C. 2923.03(F). In addition,

the record is devoid of evidence of the specifics of Elmore’s criminal history. Accordingly, it

was not possible for the trial court to determine whether Jordan and Elmore were similar

offenders. For the above reasons, we conclude that the trial court did not abuse its discretion by

imposing the maximum sentence in this case. Jordan’s third assignment of error is overruled.

                                                III.

       {¶35} Jordan’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                15




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                     DONNA J. CARR
                                                     FOR THE COURT




HENSAL, J.
CONCURS.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
