[Cite as Sate v. Caldwell, 2018-Ohio-2593.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-17-1054

        Appellee                                  Trial Court No. CR0201602723

v.

Jason Caldwell                                    DECISION AND JUDGMENT

        Appellant                                 Decided: June 29, 2018

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Karin L. Coble, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal brought by appellant from the judgment of the Lucas

County Court of Common Pleas. In this case, appellant was indicted on September 20,

2016, on a singular count. The grand jury charged appellant with a violation of R.C.

2911.01(A)(1) and (C), aggravated robbery, a felony of the first degree, in addition to a
specification that the offender displayed, brandished, indicated possession or used a

firearm, pursuant to R.C. 2941.145.

       {¶ 2} On February 6, 2017, the case proceeded to trial before a jury. The jury

returned a verdict of guilty.

       {¶ 3} On February 28, 2017, appellant was sentenced to four years for the robbery

count, in addition to a mandatory and consecutive three years of incarceration for the gun

specification for a total term of imprisonment of seven years. Appellant was also ordered

to pay all costs and further ordered to pay restitution to the victim, a carryout store, in the

amount of $1,615.

       {¶ 4} Appellant sets forth three assignments of error:

              I. Appellant’s convictions are not supported by sufficient evidence

       and are against the manifest weight of the evidence.

              II. The trial court erred in imposing the costs of confinement.

              III. The trial court erred in imposing restitution.

                                        Background

       {¶ 5} The following facts were adduced at trial. On September 10, 2016, a

cashier, while working at the Stop & Go Carryout located at 1801 Arlington in Toledo,

Lucas County, Ohio, witnessed two men enter the store at approximately 8:00 p.m. Each

had black ski masks over their heads with holes uncovering their eyes and their mouths.

After initially reporting to the police that both men were African-American, he realized

after watching the surveillance video that one was a caucasian. The caucasian brandished




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a gun in the face of the cashier and indicated that if he did not “hurry it up that I was

going to be shot in the face, something around those words.”

       {¶ 6} The cashier believed that approximately $800 was taken. The two men fled

out the door.

       {¶ 7} Toledo police received a report of a robbery in progress at the Stop & Go

carryout on Arlington and arrived at the scene at approximately 8:15 p.m. The police

immediately secured the location preventing anyone from entering the premises.

Detectives were immediately summoned and arrived shortly thereafter. The store has a

video surveillance system and the video was played for the detectives. Detective Cousino

noticed that a still frame from the video clearly showed that one of the perpetrators had

placed his right hand on a section of plexiglass on the counter. The video also showed a

gun in the left hand of the person.

       {¶ 8} The detective was able to lift two fingerprint samples form that plexiglass

and enter those samples into the national Automated Fingerprint Identification System

(AFIS) for comparison. After receiving a list of possible candidates with known

fingerprints, an analysis was undertaken. A match was made with Jason Caldwell’s

known right little fingerprint with the fingerprint lifted from the plexiglass at the scene of

the robbery.

       {¶ 9} Based upon this fingerprint match, appellant was arrested at his home. He

had $597 in cash in small bills in his possession at the time of his arrest.




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       {¶ 10} The jury viewed the video evidence and heard testimony from the carryout

cashier, the Toledo police officers at the scene as well as the investigating detectives.

The arresting officer also testified as well as appellant’s girlfriend.

                    Sufficiency and Manifest Weight of the Evidence

       {¶ 11} Appellant’s first assignment of error challenges the sufficiency of the

evidence as well as the manifest weight of the evidence. In reviewing a challenge to the

sufficiency of 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. State v. Smith, 80

Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, appellate

courts will not weigh evidence or assess credibility of the witnesses. State v. Walker, 55

Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978).

       {¶ 12} R.C. 2911.01 states:

              (A) No person, in attempting or committing a theft offense, as

       defined in section 2913.01 of the Revised Code, or in fleeing immediately

       after the attempt or offense, shall do any of the following:

              (1) Have a deadly weapon on or about the offender’s person or under

       the offender’s control and either display the weapon, brandish it, indicate

       that the offender possesses it, or use it;




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            (2) Have a dangerous ordnance on or about the offender’s person or

     under the offender’s control;

            (3) Inflict, or attempt to inflict, serious physical harm on another.

            (B) No person, without privilege to do so, shall knowingly remove

     or attempt to remove a deadly weapon from the person of a law

     enforcement officer, or shall knowingly deprive or attempt to deprive a law

     enforcement officer of a deadly weapon, when both of the following apply:

            (1) The law enforcement officer, at the time of the removal,

     attempted removal, deprivation, or attempted deprivation, is acting within

     the course and scope of the officer’s duties;

            (2) The offender knows or has reasonable cause to know that the law

     enforcement officer is a law enforcement officer.

            (C) Whoever violates this section is guilty of aggravated robbery, a

     felony of the first degree.

            (D) As used in this section:

            (1) “Deadly weapon” and “dangerous ordnance” have the same

     meanings as in section 2923.11 of the Revised Code.

            (2) “Law enforcement officer” has the same meaning as in section

     2901.01 of the Revised Code and also includes employees of the

     department of rehabilitation and correction who are authorized to carry

     weapons within the course and scope of their duties.




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         {¶ 13} In the case now before this court, appellant argues that the evidence

presented against him consists mainly of fingerprints. He further argues that the state

could not establish that the fingerprint was left at the scene at the time of the robbery.

         {¶ 14} The video shows a perpetrator clearly placing his hand on the plexiglass.

The testimony of the responding officer was that he arrived within minutes of the call

being made to 911. He then secured the scene preventing others from entering. He

called the detectives who then arrived while he remained. Detectives watched the video

and fingerprints were lifted from the plexiglass. Given this evidence, we find that there

was sufficient evidence for the trier of fact to conclude that the fingerprints lifted from

the plexiglass belonged to appellant and that they were impressed at the time of the

commission of the crime. A rational trier-of-fact could have found the essential elements

of aggravated robbery while brandishing a firearm to be proven beyond a reasonable

doubt.

         {¶ 15} Appellant also claims that the finding of guilty by the jury was against the

manifest weight of the evidence. In a manifest weight challenge, we must determine

whether the greater amount of credible evidence supports the conviction. Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12. This court sits as

if the “thirteenth juror” and must review the record, weigh the evidence and all

reasonable inferences drawn from it, consider the witnesses’ credibility and decide, in

resolving any conflicts in the evidence, whether the trier-of-fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a




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new trial ordered. See State v. Leech, 6th Dist. Lucas No. L-13-1156, 2015-Ohio-76,

¶ 32, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 16} The thrust of appellant’s argument here is that appellant had a tattoo

between his thumb and index finger that could not be seen on the videotape. However,

appellant acknowledges that there was testimony that, when holding a handgun, the

“loop” of the gun would obscure and cover appellant’s tattoo. The videotape and

testimony of the witnesses provide competent, credible evidence appellant committed

aggravated robbery with a specification that he brandished a firearm during the

commission of this offense. Accordingly, this assigned error is found not well-taken.

       {¶ 17} Appellant’s second assignment of error asserts that the trial court erred in

the imposition of costs of confinement as a financial penalty. Specifically, appellant

argues that the trial court erred when it failed to specify the actual costs of confinement at

the time of sentencing.

       {¶ 18} At the outset, we note that appellant failed to seek a waiver of costs at

sentencing. Therefore, although the issue is waived and the matter of costs are

considered res judicata, appellant cites to our case of State v. Warnka, 6th Dist. Lucas No.

L-15-1108, 2016-Ohio-7423. In Warnka, we remanded to the trial court because the

court imposed the costs of confinement without specifying the actual costs of

confinement and the amount Warnka was able to pay at the time of sentencing.




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         {¶ 19} We have more thoughtfully reviewed our holding in Warnka and have

concluded that it is in conflict with our earlier holding in State v. Anderson, 6th Dist.

Lucas Nos. L-01-1239, L-01-1248, 2004-Ohio-1188.

         {¶ 20} In Anderson, we held that “while R.C. 2929.18(A)(4) provides the trial

court with the authority to order the reimbursement by the offender of costs for sanctions

incurred by the government, it does not require the trial court to specify the amount of

those costs at sentencing.” Id. at ¶ 45.

         {¶ 21} Therefore, we now explicitly overrule Warnka with respect to our holding

on the issue requiring a trial court to specify actual costs at the time of sentencing and

reaffirm our holding in State v. Anderson, supra.

         {¶ 22} As we held in Anderson, the trial court is not required to state the actual

costs of confinement at sentencing. Therefore, this assignment of error is found not well-

taken.

         {¶ 23} Appellant’s third assignment of error claims error in the imposition of

restitution.

         {¶ 24} R.C. 2929.18(A)(1)states:

                (1) Restitution by the offender to the victim of the offender’s crime

         or any survivor of the victim, in an amount based on the victim’s economic

         loss. If the court imposes restitution, the court shall order that the

         restitution be made to the victim in open court, to the adult probation

         department that serves the county on behalf of the victim, to the clerk of




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       courts, or to another agency designated by the court. If the court imposes

       restitution, at sentencing, the court shall determine the amount of restitution

       to be made by the offender. If the court imposes restitution, the court may

       base the amount of restitution it orders on an amount recommended by the

       victim, the offender, a presentence investigation report, estimates or

       receipts indicating the cost of repairing or replacing property, and other

       information, provided that the amount the court orders as restitution shall

       not exceed the amount of the economic loss suffered by the victim as a

       direct and proximate result of the commission of the offense. If the court

       decides to impose restitution, the court shall hold a hearing on restitution if

       the offender, victim, or survivor disputes the amount. All restitution

       payments shall be credited against any recovery of economic loss in a civil

       action brought by the victim or any survivor of the victim against the

       offender.

       {¶ 25} Our review of the record establishes that the presentence report provides

ample evidence of the amount of restitution that is owed to the carryout. We note that

when the trial court imposed the restitution at the sentencing hearing, appellant raised no

objection. Therefore, the objection must be considered to have been waived except for

plain error. State v. Peck, 6th Dist. Sandusky No. S-12-046, 2013-Ohio-4835, ¶ 21.

Only when an award of restitution is not supported by credible, competent evidence from

which the court can discern the amount of restitution will we find plain error. In this




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instance, we have found competent, credible evidence in the record from which the trial

court could have made such a determination. This assignment of error is found not well-

taken.

                                         Conclusion

         {¶ 26} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, J.                                          JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


              This decision is subject to further editing by the Supreme Court of
         Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
              version are advised to visit the Ohio Supreme Court’s web site at:
                       http://www.supremecourt.ohio.gov/ROD/docs/.




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