[Cite as State v. McCloud, 2018-Ohio-3291.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27825
                                                    :
 v.                                                 :   Trial Court Case No. 2017-CR-1956/2
                                                    :
 ALFORD McCLOUD                                     :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 17th day of August, 2018.

                                               ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 345 North Main Street, Unit 2,
Springboro, Ohio 45066
      Attorney for Defendant-Appellant

                                              .............



TUCKER, J.
                                                                                        -2-




       {¶ 1} Defendant-appellant, Alford McCloud, appeals from his conviction on one

count of robbery, a second degree felony in violation of R.C. 2911.02(A)(2). McCloud

argues that his conviction should be overturned because the State’s evidence did not

suffice to prove every element of the offense, and because the jury’s verdict was against

the manifest weight of the evidence. We find that McCloud’s arguments lack merit, and

therefore, we affirm his conviction.

                            I. Facts and Procedural History

       {¶ 2} Between eight and nine o’clock in the morning on June 22, 2017, Jermaine

Dawson travelled by bus from the homeless shelter where he was living to a bus stop on

Main Street in Dayton. Trial Tr. 135:9-136:3 and 194:23-195:19. Dawson went to the

stop to meet a friend who had offered transportation and help finding a job. Id. at 136:12-

136:18 and 164:12-165:7.

       {¶ 3} An hour earlier, Dawson had consumed marijuana. Id. at 156:5-156:13 and

165:8-165:21. Having reached the bus stop roughly 45 minutes before he expected his

friend to arrive, Dawson purchased two, 24-ounce cans of beer at the nearby United

Foods store and returned to the stop to drink them. Id. at 136:12-136:18, 144:6-144:10,

156:19-156:24 and 164:12-166:5. When asked later whether his sensory perception

was impaired as a result, Dawson answered that he “was perfectly fine [while he] was at

the bus stop,” inasmuch as consuming alcohol and marijuana was a “normal activity” for

him at the time. See id. at 156:14-157:7.

       {¶ 4} At some point thereafter, two men approached the bus stop: McCloud, whom

Dawson recognized from the homeless shelter, and Charles McAlister. Id. at 137:22-
                                                                                      -3-


138:20 and 165:22-166:9.        A conversation ensued, and Dawson asked whether

McCloud knew where he could purchase more marijuana.              Id. at 139:14-139:25.

Because McCloud “made references [to being] hungry,” Dawson gave him five dollars for

food. Id. at 140:8-141:6. This left Dawson with an estimated $36 to $38 on his person,

which he kept in his right sock. Id.

       {¶ 5} McAlister, however, irritated Dawson, at least partly because McAlister

“wouldn’t stop talking.” 1   Id. at 140:8-141:17.     Dawson’s temper thus aroused, he

announced his intention to leave, and McAlister then said to McCloud, “[y]ou know what

you got to do.” Id. at 141:21-142:19. Alarmed by what he perceived to be the hostile

implications of McAlister’s remark, Dawson “made a beeline towards the alley” behind the

United Foods store. Id. at 142:20-144:8. Apart from his desire to avoid McAlister and

McCloud, Dawson acknowledged afterwards that he sought refuge in the alley because

he needed a place to urinate in which he would be screened from the view of passers-by.

Id. at 144:1-144:24.

       {¶ 6} McAlister and McCloud followed; Dawson estimated that McAlister followed

him at a distance of approximately 50 feet, and McCloud at a distance of approximately

five feet.    Id. at 144:25-146:9.     As he trailed Dawson toward the alley, McCloud

demanded money, to which Dawson replied, “I ain’t got no money for you.” Id. at 145:3-

145:12.      McCloud responded by accusing Dawson of lying, and Dawson “took [the

accusation] as a form of [further] aggression.” Id.

       {¶ 7} Once in the alley, Dawson proceeded to relieve himself near an external


1 Dawson had the impression that McAlister expected an invitation to join him and
McCloud in consuming any marijuana that he managed to purchase, though he did not
recall McAlister saying as much. Trial Tr. 139:14-140:4 and 141:21-142:4.
                                                                                         -4-

cabinet freezer. See id. at 147:23-148:13 and 151:1-151:6. Although McAlister was still

approaching the alley, McCloud had followed Dawson very closely, prompting Dawson to

request a little privacy. Id. at 149:9-149:21. Dawson apparently lost consciousness at

that moment. Id. at 151:4-151:14.

         {¶ 8} When he regained consciousness, Dawson felt disoriented and discovered

that the money he kept in his right sock had been taken. Id. at 151:12-152:9. He was

helped into the United Foods store by an employee. Id. at 150:13-150:23 and 211:17-

213:2.    At nearly the same moment, an officer with the Dayton Police Department

reported to the store to view security video of an unrelated incident from the day before;

the officer was consequently present as Dawson entered the store with the employee’s

assistance.2 See id. at 211:17-213:2. The officer described Dawson as “disoriented

[and] covered in blood” and upon investigating the alley, observed blood spatters on the

ground and one of the walls, along with “bloody handprints” on the cabinet freezer. Id.

at 212:22-213:19. In addition, the officer reviewed the store’s external security video,

which had captured images of Dawson, McCloud and McAlister.3 Id. at 216:8-216:25.

Dawson was taken to Grandview Medical Center for treatment, where the officer

interviewed him. Id. at 217:12-218:24.

         {¶ 9} McAlister and McCloud were arrested later that day. See id. at 227:24-

230:19 and 240:18-244:1. On July 10, 2017, McCloud was indicted on a single count of


2The officer reported to the store with her partner, who did not testify at McCloud’s trial.
See Trial Tr. 216:11-216:22 and 221:9-222:2.
3 Dawson and McCloud seem to have been slightly outside of the security system’s field
of view at the critical moment, though they were seen entering the alley. See Trial Tr.
147:23-150:10. The security video also showed Dawson lying on the ground, and the
United Foods employee finding him and helping him into the store. Id. at 150:1-150:23.
                                                                                      -5-


robbery pursuant to R.C. 2911.02(A)(2), and his case proceeded to a trial by jury. Before

the reading of the verdict, McCloud offered two motions for acquittal under Crim.R. 29 in

quick succession, both of which the trial court overruled. Id. at 256:12-256:18, 258:11-

259:3 and 264:2-264:16. The jury found McCloud guilty as charged. On November 30,

2017, the trial court filed a termination entry reflecting the verdict and the sentence

imposed, and on December 5, 2017, McCloud timely filed his notice of appeal.

                                      II. Analysis

      {¶ 10} We address McCloud’s first and second assignments of error together

because they are interrelated. For his first assignment of error, McCloud contends that:

             THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

      MOTION FOR ACQUITTAL MADE AT THE CONCLUSION OF THE

      STATE’S CASE AND AT THE CONCLUSION OF THE EVIDENCE

      ENTERED AT TRIAL ON THE GROUND THAT THERE WAS

      INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR

      ROBBERY BEYOND A REASONABLE DOUBT WHEN ONE OF THE

      ESSENTIAL ELEMENTS CHARGED, NAMELY, THAT APPELLANT HAD

      ATTEMPTED OR COMMITTED A THEFT OFFENSE AT THE TIME OF

      THE INCIDENT, HAD NOT BEEN PROVEN BEYOND A REASONABLE

      DOUBT.

And for his second assignment of error, McCloud contends that:

             THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

      MOTIONS FOR ACQUITTAL MADE AT THE CONCLUSION OF THE

      STATE’S CASE AND AT THE CONCLUSION OF THE EVIDENCE
                                                                                             -6-


       ENTERED AT TRIAL ON THE GROUND THAT THERE WAS

       INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR

       ROBBERY BEYOND A REASONABLE DOUBT WHEN ONE OF THE

       ESSENTIAL ELEMENTS CHARGED, NAMELY, THAT APPELLANT HAD

       INFLICTED, ATTEMPTED TO INFLICT, OR THREATENED TO INFLICT

       PHYSICAL HARM TO ANOTHER, AT THE TIME OF THE INCIDENT, HAD

       NOT BEEN PROVEN BEYOND A REASONABLE DOUBT.

       {¶ 11} McCloud argues that the evidence did not suffice to establish that he

committed a theft offense because “the alleged victim, Jermaine Dawson, did not know

how much money [he had,] if any.” Appellant’s Br. 7. Likewise, McCloud argues “that

the State did not prove beyond a reasonable doubt that he caused harm” to Dawson. Id.

Noting that Dawson was “impaired by alcohol and [marijuana],” McCloud posits that

Dawson might merely “have fallen against the wall” in the alley, adding that Dawson’s

“injuries were inconsistent with being hit in the face.”        Id.   On the basis of these

purported deficiencies in the evidence, McCloud maintains that the trial court should have

sustained his motions for acquittal.

       {¶ 12} An appellate court reviews a trial court’s ruling on a motion under Crim.R.

29 by the same standard applicable to a challenge based on the sufficiency of the

evidence. State v. Scott, 2018-Ohio-198, ___ N.E.3d ___, ¶ 37 (2d Dist.), citing State v.

Bailey, 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, ¶ 17.                Sufficiency of the

evidence “is the legal standard applied to determine whether * * * the evidence [in a given

case] is legally sufficient as a matter of law to support the jury[’s] verdict.” State v. Smith,

80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins, 78 Ohio St.3d
                                                                                                 -7-


380, 386, 678 N.E.2d 541 (1997). On review of a challenge to a conviction based upon

the sufficiency of the evidence, 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.’ ” Id.,

quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

         {¶ 13} R.C. 2911.02(A)(2) states that “[n]o person, in attempting or committing a

theft offense * * * shall * * * inflict, attempt to inflict, or threaten to inflict physical harm on

another.”     The applicable meaning of the term “theft offense” is provided by R.C.

2913.01(K)(1) and includes violations of R.C. 2913.02(A). Under R.C. 2913.02(A)(1),

“[n]o person, with purpose to deprive the owner of property or services, shall knowingly

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

of the owner * * *.” See also R.C. 2901.01(A)(3) (defining “physical harm to persons” as

“any injury, illness, or other physiological impairment, regardless of its gravity or

duration”).

         {¶ 14} Regarding the first part of McCloud’s argument, Dawson reportedly told an

officer while being interviewed at Grandview Medical Center that he had had “$70 in his

sock and $180 in his back pocket,” rather than the $36-38 to which Dawson testified at

trial.   Trial Tr. 225:13-226:7.      The precise amount of money Dawson had in his

possession, however, is effectively irrelevant. Compare R.C. 2911.02(A) and (C)(2),

with R.C. 2913.02(A)(1) and (B)(2). Dawson himself admitted that he asked McCloud

about the possibility of purchasing marijuana, and he testified without contradiction that

he gave McCloud five dollars for food and purchased two cans of beer at the United Foods
                                                                                         -8-


store. Trial Tr. 136:12-136:18, 139:14-141:1, 144:6-146:9, 151:1-151:14, 156:19-156:24

and 164:12-166:5. Furthermore, the testimony established that McCloud knew Dawson

had money in his possession; that McCloud knew where Dawson was keeping the money;

and that McCloud was within arm’s reach of Dawson immediately before Dawson lost

consciousness. See id.

       {¶ 15} Presented with this testimony and significant circumstantial evidence,

including the security video and the contemporaneous observations of a police officer,

the jury could have reasonably concluded that: (1) Dawson had some amount of money

on his person before being rendered unconscious; (2) McCloud caused Dawson to

become unconscious; and (3) while Dawson was unconscious, McCloud took Dawson’s

money. See, e.g., State v. Hopfer, 112 Ohio App.3d 521, 558, 679 N.E.2d 321 (2d

Dist.1996) (stating that “circumstantial evidence is sufficient to prove the essential

elements in a criminal case”).     For that matter, having been apprised that Dawson

alleged on one occasion prior to trial that he had had $250 in his possession, rather than

$36-38, the jury heard his explanation for the inconsistency and, as was within its purview,

chose to credit his testimony. (Citations omitted.) State v. Flores-Lopez, 2017-Ohio-

690, 85 N.E.3d 534, ¶ 63 (noting that a jury may believe all, part or none of a witness’s

testimony).

       {¶ 16} Regarding the second part of McCloud’s argument, McCloud speculates

that Dawson might “have fallen against the wall” in the alley, thereby causing his injuries,

and suggests that the “injuries [themselves] were inconsistent with being hit in the face.”

Appellant’s Br. 7. Speculation aside, the jury heard testimony from Dawson and received

circumstantial evidence that, as noted, strongly supported the inference that McCloud
                                                                                      -9-


was responsible. Moreover, McCloud’s assertion about the nature of Dawson’s injuries

is founded on a fallacy—the officer who interviewed Dawson at Grandview Medical

Center saw “a large laceration on the back of his head.” (Emphasis added.) Trial Tr.

217:17-218:4.

      {¶ 17} We hold that the State presented sufficient evidence with respect to each

of the elements of robbery under R.C. 2911.02(A)(2) to permit the jury to find McCloud

guilty beyond a reasonable doubt. McCloud’s first and second assignments of error are

overruled.

      {¶ 18} For his third assignment of error, McCloud contends that:

             THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST

      WEIGHT OF THE EVIDENCE.

      {¶ 19} McCloud argues in the alternative that the jury’s verdict was against the

manifest weight of the evidence. Appellant’s Br. 8. Specifically, McCloud faults the jury

for overlooking Dawson’s “impairment [as the result of his] alcohol and [marijuana

consumption]” on the morning of June 22, 2017, and critiques Dawson’s reliability as a

witness because Dawson did not know “what time * * * the incident took place”; because

Dawson “did not know how much money, if any” he had on his person; because Dawson

did “not know who, if anybody, hit him”; because Dawson did “not know how he [was]

injur[ed]”; and because Dawson did “not know who, if anybody,” took his money while he

was unconscious. Id.

      {¶ 20} In a challenge based on the weight of the evidence, an “appellate court acts

as a ‘thirteenth juror.’ ” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 49 (2d

Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
                                                                                         -10-


Accordingly, the appellate court must review the 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 a manifest

miscarriage of justice warranting a new trial. Thompkins at 387, citing State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist.

Montgomery No. 25172, 2013-Ohio-717, ¶ 8. The appellate court “may determine which

of several competing inferences suggested by the evidence should be preferred,”

although it “must defer to the factfinder’s decisions whether, and to what extent, to credit

the testimony of particular witnesses.” (Citation omitted.) State v. Cochran, 2d Dist.

Montgomery No. 27023, 2017-Ohio-216, ¶ 5.           A trial court’s “judgment should be

reversed as being against the manifest weight of the evidence ‘only in the exceptional

case in which the evidence weighs heavily against the conviction.’ ” Hill at ¶ 8, quoting

Martin at 175.

       {¶ 21} Recognizing that the reliability of Dawson’s recollections was not without

question, the jury heard his testimony and evaluated his reliability in the context of

corroborative circumstantial evidence. We may not simply substitute our judgment for

that of the jury, especially as it relates to the assessment of a witness’s credibility. On

our review of the record, we hold that the jury did not clearly lose its way in finding

McCloud guilty. McCloud’s third assignment of error is overruled.

                                     III. Conclusion

       {¶ 22} We hold that the State presented sufficient evidence to prove McCloud’s

guilt with respect to each of the elements of robbery pursuant to R.C. 2911.02(A)(2), and

further, that the jury did not clearly lose its way in finding McCloud guilty. Therefore,
                                                                                -11-


McCloud’s assignments of error are overruled, and his conviction is affirmed.



                                    .............



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michael P. Allen
Pamela L. Pinchot
Hon. Erik R. Blaine
