[Cite as State v. Henry, 2018-Ohio-2174.]


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

STATE OF OHIO                                          C.A. No.        28764

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RONALD HENRY                                           COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2017-04-1194-A

                                 DECISION AND JOURNAL ENTRY

Dated: June 6, 2018



        HENSAL, Judge.

        {¶1}     Ronald Henry appeals his conviction and sentence for robbery in the Summit

County Court of Common Pleas. For the following reasons, this Court affirms.

                                                  I.

        {¶2}     A.P. testified that, while proceeding back to his car after buying some items at a

gas station, a man from a car parked next to him shut A.P.’s car door just as he started to open it.

He further testified that, contemporaneously, another man, Mr. Henry, demanded his money.

When A.P. refused, Mr. Henry threatened him with what appeared to be a gun inside his pocket.

A.P. pulled out a pocket knife from his pants and retreated around the back of his car towards the

gas station entrance, where he asked employees to call the police. Officers arrested Mr. Henry

and his co-defendant later that evening at a nearby hotel after seeing their car in its parking lot.
                                                2


       {¶3}    The Grand Jury indicted Mr. Henry for robbery under Revised Code Section

2911.02(A)(3). A jury found him guilty of the offense, and the trial court sentenced him to three

years imprisonment. Mr. Henry has appealed, assigning two errors.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE
       STATE FAILED TO ESTABLISH ON THE RECORD SUFFICIENT
       EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST MR. HENRY
       IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
       AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
       1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶4}    Mr. Henry argues that his robbery conviction is not supported by sufficient

evidence. Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. 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.

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

       {¶5}    The jury found Mr. Henry guilty of robbery under Section 2911.02(A)(3). That

section provides that “[n]o person, in attempting or committing a theft offense * * * shall * * *

[u]se or threaten the immediate use of force against another.” “‘Force’ means any violence,

compulsion, or constraint physically exerted by any means upon or against a person or thing.”

R.C. 2901.01(A)(1).
                                                3


       {¶6}    Mr. Henry argues that the State failed to present any evidence that a theft offense

or attempted offense occurred. He also argues that the State failed to present sufficient evidence

that he used or threatened the immediate use of force against A.P. He overlooks the testimony of

A.P., however, who stated that Mr. Henry and his co-defendant confronted him at his car and

ordered him to “give us the bag.” When A.P. asked whether the man was referring to the bag

that A.P. had in his pocket, Mr. Henry’s co-defendant replied “[y]eah. Just give us the bag.”

A.P. then asked the men whether they were really “going to rob me for $200?” Mr. Henry

replied “[d]on’t make us pull the hammer.” A.P. testified that Mr. Henry had one of his hands in

the pocket of his hooded sweatshirt, so he understood Mr. Henry’s statement to mean that Mr.

Henry had a gun in the pocket. Viewed in a light most favorable to the State, we conclude that

A.P.’s testimony was sufficient to establish that Mr. Henry attempted to commit a theft offense.

See R.C. 2913.02(A)(4) (“No person, with purpose to deprive the owner of property * * * shall

knowingly obtain or exert control over * * * the property * * * [b]y threat[.]”); R.C.

2911.02(C)(2); R.C. 2913.01(K) (including a violation of R.C. 2913.02 in the definition of

“[t]heft offense”).

       {¶7}    Regarding the use of force, Mr. Henry’s statement that he would “pull the

hammer” if A.P. did not turn over his money could reasonably be construed as a threat to commit

violence on A.P. A.P.’s testimony, therefore, was also sufficient to establish that Mr. Henry

threatened the use of force against him. Accordingly, upon review of the record, we conclude

that Mr. Henry’s robbery conviction is supported by sufficient evidence. Mr. Henry’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       MR. HENRY’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE POSSESSION IN VIOLATION OF THE DUE PROCESS
                                                   4


         CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND
         ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

         {¶8}   Mr. Henry also argues that his conviction was against the manifest weight of the

evidence. If a defendant asserts that his conviction was 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 pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d 380, at 387. An appellate court should only exercise its power to

reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v.

Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

         {¶9}   Mr. Henry argues that the only person who threatened the use of force was A.P.

who pulled a pocket knife on him and his friend. He notes that his friend described the incident

differently than A.P. According to his friend, as Mr. Henry and he were entering the gas station

store, they heard A.P. say a racial slur about them under his breath, which upset Mr. Henry.

While the friend admitted that they confronted A.P. at his car, it was only in response to A.P.’s

racial slur. The friend testified that A.P. immediately drew his pocket knife on them and started

backing up towards the store. The friend denied that Mr. Henry and he ever requested A.P.’s

money.

         {¶10} A security video of the front of the gas station shows the incident at A.P.’s car. It

shows Mr. Henry and his co-defendant approach A.P., who pulls a knife out of his pocket shortly

thereafter and proceeds to back around the rear of his car and toward the door of the gas station.
                                                 5


Mr. Henry follows A.P. around the car and has his right hand in the pocket of his hooded

sweatshirt throughout the confrontation. Unfortunately, there is no audio of the exchange.

While some of the video recordings inside the store include audio, they did not capture any

statements between A.P. and Mr. Henry or his co-defendant.

       {¶11} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of

the syllabus. “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the

record, we cannot say that the jury lost its way when it chose to believe A.P.’s version of the

facts over the testimony of Mr. Henry’s co-defendant. Mr. Henry’s second assignment of error is

overruled.

                                                III.

       {¶12} Mr. Henry’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       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.
                                                6


       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.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

PAUL M. GRANT, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
