[Cite as State v. Swiggett, 2017-Ohio-8203.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2017-T-0003
        - vs -                                  :

MARLON A. SWIGGETT,                             :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR
00528.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Marlon A. Swiggett, appeals from the judgment of the Trumbull

County Court of Common Pleas convicting him, after a trial to the bench, of robbery, a

felony of the second degree. We affirm the judgment of the trial court.

        {¶2}     On April 20, 2015, Walmart Loss Prevention officers Brittany Placer and

Jared Korbini were monitoring the sales floor for potential shoplifters.      Ms. Placer

observed two males; one African-American, appellant; and one Hispanic, near the lawn
and garden section selecting merchandise with no regard for the price. According to

Ms. Placer, the individuals were just “putting anything in the buggy.” Once their

shopping cart was full, the individuals proceeded to the front of the store, bypassed the

cash registers, and left through the general-merchandise exit.

       {¶3}    Ms. Placer and Mr. Korbini confronted the men at the exit and identified

themselves as loss-prevention officers. The men were asked to accompany the officers

to their office.   At first, the men were non-compliant and standoffish; ultimately,

however, they agreed to go with the officers.       Ms. Placer, with another Walmart

employee, Greg Hagee, entered the office, with the suspects, which was near the exit

where the men were confronted.       And Mr. Korbini remained outside the door and

phoned the police. While in the office, appellant remained antsy and refused to sit.

Suddenly, he grabbed Ms. Placer and pushed her aside to flee the office. The men

subsequently ran out and an altercation ensued with Mr. Korbini.         As Ms. Placer

attempted to assist, appellant punched her in the stomach. Both men successfully fled

the store and left in a vehicle. Ms. Placer and Mr. Hagee were able to get a vehicle

description, a white Lexus, and a license plate number, which they provided to police.

Ultimately, the men attempted to take $383.38 of Walmart merchandise. Approximately

two and one-half minutes elapsed between the initial stop of the suspects and their

ultimate flight.

       {¶4}    Detective Joe Sofcheck of the Bazetta Township Police Department was

dispatched to the store. Upon arriving, he spoke with Ms. Placer and Mr. Korbini. He

noticed Ms. Placer’s and Mr. Korbini’s shirts were somewhat disheveled. Detective

Sofcheck also took a statement from Mr. Hagee. The detective retrieved and reviewed




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the video surveillance from the store’s closed-circuit monitoring system.        He also

obtained a copy of the register receipt prepared by the store. The detective ran the

license plate number and found the vehicle in question.       He determined the plate

belonged to a black Tahoe, which did not match the witness’ description. The Tahoe,

however, was registered to a female with the last name “Swiggett.”

      {¶5}   Detective Sofchek and Detective Shawn Rentz attempted to identify the

subjects using Facebook.      After an unsuccessful photographic lineup, the police

department received a tip from a bonding company, identifying appellant as a potential

suspect. From the tip, officers produced a second photo lineup which included a photo

of appellant and his accomplice. Ms. Placer positively identified both individuals as the

suspects.

      {¶6}   Appellant was indicted on one count of robbery, a felony of the second

degree, in violation of R.C. 2911.01(A)(2) and (B). Appellant pleaded not guilty to the

charge. He later entered a plea of guilty to the charge, which he subsequently sought to

withdraw. A hearing on his motion to withdraw was held and the trial court granted the

same. The matter proceeded to a bench trial at which appellant’s defense conceded a

theft occurred, but denied appellant committed a robbery.     After trial, the court found

appellant guilty on the charged count of felony-two robbery. Appellant was sentenced

to a three-year term of incarceration, to run consecutively with a federal sentence he

was serving in a separate matter and concurrently with a sentence in a separate

Trumbull County case. Appellant now appeals and assigns two errors, which provide:

      {¶7}   “[1.]The trial court’s finding that appellant had committed [the] crime of

robbery was not supported by sufficient evidence.




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       {¶8}   “[2.] Appellant’s conviction is against the manifest weight of the evidence.”

       {¶9}   When a defendant moves the trial court pursuant to Crim.R. 29, he or she

is challenging the sufficiency of the evidence. A “sufficiency” argument raises a question

of law as to whether the prosecution offered some evidence concerning each element of

the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-

4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably to the

prosecution, whether the jury could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-

6062, ¶9 (11th Dist.).

       {¶10} In contrast, a court reviewing the manifest weight observes the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses and determines 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. Schlee, 11th Dist. Lake

No. 93-L-082, 1994 WL 738452, *5 (Dec. 23, 1994).

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

which provides:

       {¶12} (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:

       {¶13} * * *

       {¶14} (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

       {¶15} Appellant asserts the state failed to present sufficient evidence that any

infliction or attempt to inflict physical harm on Ms. Placer or Mr. Korbini occurred




                                              4
immediately after the theft. He contends there were significant intervening events prior

to appellant fleeing the store. To wit, he was stopped, taken into the loss-prevention

office, addressed by Walmart employees, and only after these events, did he flee. In

appellant’s view, these facts demonstrate the lack of “immediacy” required by the

statute. In support, appellant cites State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-

4106.

        {¶16} In Thomas, the defendant left a grocery store with stolen merchandise,

dropped it, and continued to walk away from the store by entering a nearby laundromat.

Id. at ¶2. The defendant was then approached by a security guard from the grocery

store. The guard asked the defendant to return to the store, to which he agreed. Id. As

the defendant and security guard approached the grocery store, however, the defendant

struck the security guard in the face and attempted to flee. Id. The defendant was

charged with robbery and convicted. The Supreme Court, in reversing the defendant’s

robbery conviction, noted that there had been a lapse of time between the theft and the

defendant’s attempt to flee, so that the defendant’s flight could not have been said to

have immediately followed the theft. Id. at ¶16. The Court observed:

        {¶17} 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. 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. Thomas, supra, at ¶15.




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       {¶18} The Court determined “[i]t is readily apparent to us that the evidence was

insufficient to show that [the defendant] was ‘fleeing immediately after’ a theft when he

inflicted harm on [the officer.]” Id. at ¶16. The court underscored that there was a delay

or lapse of time between the theft offense and the attempt to flee and, as a result, the

defendant’s actions upon returning with the officer to the store was not immediately after

the theft offense.

       {¶19} In response, the state contends this matter is distinguishable from

Thomas, and is more akin to this court’s holding in State v. Brown, 11th Dist. Lake No.

2013-L-120, 2014-Ohio-5702. In Brown, an Old Navy loss-prevention officer observed

the defendant selecting various items and a shopping cart full of clothes. The video

from the store revealed the defendant’s midsection appeared to significantly expand,

while the contents of her cart reduced.           The defendant left the store and was

apprehended by the officer. The officer spent approximately 15-20 seconds asking the

defendant to return to the store, but she refused and ran. The officer pursued her and

the defendant commenced dropping clothing.           The defendant then turned around and,

upon confronting the officer, struck him in an attempt to prevent him from contacting

police. Id. ¶2-6. This court held that there was “no time lapse between the theft offense

and [the defendant’s] flight to when she inflicted physical harm. The infliction of physical

harm occurred during a continuous effort to flee that involved [the defendant]

backtracking to accost [the officer.]. Id. at ¶18.

       {¶20} The state contends the instant case is akin to Brown in that appellant was

engaged in a “continuous effort to flee” when he inflicted or attempted to inflict harm of

Ms. Placer and/or Mr. Korbini. The state emphasizes that the entire incident, from the




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time appellant was stopped by Ms. Placer and Mr. Korbini until appellant’s flight was

less than two and one-half minutes.

       {¶21} We do not agree that this case is analogous to Brown. In this matter,

appellant and his accomplice were not engaged in a continuing effort to flee Walmart

loss prevention staff when the infliction or attempt to inflict physical harm occurred.

Nevertheless, we also maintain the instant matter is factually distinct from Thomas. In

Thomas, the defendant abandoned the property in the store’s parking lot, entered a

separate establishment, and then, after exiting that establishment agreed to accompany

the guard, who he subsequently assaulted in an effort to flee. The trial court, as the

arbiter of fact in this matter, concluded:

       {¶22} “[a]s to the issue of immediacy, the Court finds that as to the Defendant

there was an ongoing course of action with no change in intent. The Court notes that

the Defendant never completely complied, never sat down, never stopped moving[,]

the[n] accosted all three store employees before escaping. The Court finds this to be

one continuous offense without a change in Defendant’s state of mind, and without any

substantial duration.”

       {¶23} We recognize that the Supreme Court ruled that “immediately,” in the

context of the robbery statute, means “without delay” or “without any delay or distance,”

the finder of fact in this matter specifically found there was no “substantial duration”

between the theft and the flight during which he inflicted or attempted to inflict harm. In

our view, the language “without substantial duration” is tantamount to the term

“immediately.” This finding is sufficient to meet the basic element of immediacy to prove




                                             7
the crime of robbery. We further hold the trier of fact did not clearly lose its way in

drawing the foregoing conclusion.

       {¶24} Appellant next argues, under his manifest-weight challenge, that the state

failed to present credible evidence that appellant employed force and threw punches in

exiting the store. Video evidence demonstrates that appellant shoved Ms. Placer as he

fled the interview room. She further testified appellant punched her as he was fleeing

and, after exiting the room, engaged in a physical confrontation with Mr. Korbini. The

trial court found “it is quite apparent from the video that Defendant attempted, inflicted,

or threatened to inflict physical harm on Placer [and] Hagee * * *.” This conclusion was

supported by credible evidence and, as such, the trier of fact did not lose its way in

convicting appellant of robbery.

       {¶25} Appellant’s assignments of error lack merit.

       {¶26} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                                   ___________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶27} Because this humble writer finds appellant’s conviction for robbery is not

supported by sufficient evidence and the trial court’s judgment should be reversed and

vacated, I respectfully dissent.




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       {¶28} Appellant raises two assignments of error on appeal: a sufficiency

argument in his first and a manifest weight argument in his second.

       {¶29} “‘“Sufficiency” challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the [trier of fact], while

“manifest weight” contests the believability of the evidence presented.

       {¶30} “‘“‘The test (for sufficiency of the evidence) is whether after viewing the

probative evidence and the inference(s) drawn therefrom in the light most favorable to

the prosecution, any rational trier of fact could have found all of the elements of the

offense beyond a reasonable doubt.         The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence.’”’” (Emphasis sic.) State v. Honzu, 11th Dist.

Trumbull No. 2016-T-0056, 2017-Ohio-626, ¶19-20, quoting State v. Schlee, 11th Dist.

Lake No. 93-L-082, 1994 WL 738452, *4–5 (Dec. 23, 1994).

       {¶31} Appellant was convicted of robbery in violation of R.C. 2911.02(A)(2)

which states: “[n]o person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten

to inflict physical harm on another[.]”

       {¶32} “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




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delay.’ Black’s Law Dictionary (8th Ed.2004) 764.” State v. Thomas, 106 Ohio St.3d

133, 2005-Ohio-4106, ¶15.

       {¶33} Based on the facts in this case and pursuant to the Ohio Supreme Court’s

definition of “immediately” in Thomas, this writer determines that the near two and one-

half minutes that elapsed between the theft and the flight cannot be deemed

“immediately after” the theft. See R.C. 2911.02(A)(2). “Immediate” or “immediately”

means “without delay” or “without any delay” “or distance.” Although two and one-half

minutes is not especially long, I find it is a delay.

       {¶34} Appellant did not attempt to flee when he was stopped. In fact, appellant

agreed to accompany Walmart employees into an office where the door was closed. I

believe this is an intervening event, thereby representing a break in any alleged effort to

flee. There was no initial flight, let alone a continuum of flight, from the encounter to the

ultimate escape. Only after some two and one-half minutes did appellant commence

flight. This temporal gap precludes the conclusion that appellant inflicted or attempted

to inflict harm immediately after committing the theft offense.           Thus, this writer

determines the state failed to present sufficient evidence that appellant was “fleeing

immediately” after the theft to sustain his R.C. 2911.02(A)(2) robbery conviction.

       {¶35} Because I find merit in appellant’s first assignment of error, I likewise find

his second assignment of error, challenging the manifest weight of the evidence, to be

moot. See App.R. 12(A)(1)(c).

       {¶36} I respectfully dissent.




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