[Cite as State v. Graves, 2012-Ohio-4798.]


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

STATE OF OHIO                                          C.A. No.      26292

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RALPH E. GRAVES                                        COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 11 02 0393

                                 DECISION AND JOURNAL ENTRY

Dated: October 17, 2012



        BELFANCE, Judge.

        {¶1}     Ralph Graves appeals from his convictions for aggravated robbery and felonious

assault. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}     Scott Stewart and Andrew Finley were smoking outside the Adams Street Bar

when a man approached them and asked for directions to Spellman Court. Mr. Stewart and Mr.

Finley were unable to help the man, and he left. He returned a short time later, struck Mr. Finley

in the face with a gun, and demanded Mr. Stewart hand over his money. Mr. Stewart emptied his

pockets and the robber took his wallet and his keys.

        {¶3}     A few days after the robbery, Deidre Scott contacted the police to report that her

cousin, Mr. Graves, had stolen money from her. When the police came to take a report, Ms.

Scott reported that, a few days earlier, Mr. Graves had come to her house and told her that he had

just robbed two men outside the Adams Street Bar.
                                                2


       {¶4}   Mr. Graves was indicted for felonious assault and two counts each of aggravated

robbery and robbery with an underlying firearm specification on each count. A jury found him

guilty on all counts, and the trial court, after merging the robbery counts with the aggravated

robbery counts, sentenced Mr. Graves to an aggregate term of 13 years in prison.

       {¶5}   Mr. Graves has appealed, raising four assignments of error for our review.

                                              II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
       ACQUITTAL, AND HIS CONVICTION IS VOID, WHERE THE STATE
       FAILED TO ESTABLISH VENUE IN SUMMIT COUNTY.

       {¶6}   In Mr. Graves’ first assignment of error, he argues that his convictions are void

because the State failed to establish that he committed the crimes in Summit County, Ohio.

       Although it is not a material element of the offense charged, venue is a fact which
       must be proved in criminal prosecutions unless it is waived by the defendant. The
       standard of proof is beyond a reasonable doubt, although venue need not be
       proved in express terms so long as it is established by all the facts and
       circumstances in the case.

(Internal citation omitted.) State v. Headley, 6 Ohio St.3d 475, 477 (1983). Relying on State v.

Myers, 9th Dist. No. 21874, 2004-Ohio-4195, Mr. Graves argues that there was insufficient

evidence to demonstrate that the robberies occurred in Summit County, Ohio.

       {¶7}   The evidence in Myers established that “(1) the victim lived on Arlington Avenue

Northwest in North Canton, (2) he was at the Suburb Inn on Arlington Street where the incident

occurred, (3) the victim was treated at Akron General Hospital, and (4) the incident was

investigated by officers of the Akron Police Department.” Id. at ¶ 7. However, this Court

concluded that the State had failed to establish venue because “[t]here was no evidence presented
                                                 3


that [the] Suburb Inn on Arlington Street was in Summit County. In fact, there was no evidence

presented by the State as to where the assault took place in terms of city, county or state.” Id.

       {¶8}    Unlike Myers, however, the State in this case established that the crimes occurred

in Summit County, Ohio. When asked if “the Adams Street Bar is located in the city of Akron,

Summit County, Ohio[,]” Officer Karleton Starks answered affirmatively. Ms. Scott testified

that she lived on Spellman Court, which she identified on a map the State introduced into

evidence. Ms. Scott testified that the map showed her house and the Adams Street Bar where the

crimes occurred.    The map is captioned “United States[,] OH[,] Summit Co[,] Akron[.]”

Furthermore, Mr. Finley, who lived above the bar, also referenced living in Akron at the time of

the robbery, and Officer Dana Murphy testified that the Adams Street Bar and Spellman Court

were within the district she patrolled as part of her duties for the Akron Police Department.

Numerous witnesses also testified that a hospital was just down the street from the bar, which

Detective Jason Hill testified was Akron City Hospital.

       {¶9}    Accordingly, we conclude that the State sufficiently established venue, and, thus,

Mr. Graves’ first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       APPELLANT’S CONVICTIONS ARE UNCONSTITUTIONAL AS THEY ARE
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED ON
       INSUFFICIENT EVIDENCE, IN VIOLATION OF THE FIFTH AND
       FOURTEENTH     AMENDMENTS      TO     THE    UNITED     STATES
       CONSTITUTION, ARTICLE I, SECTIONS 10 AND SIXTEEN OF THE OHIO
       CONSTITUTION, AND SECTION 2921.12(A)(1) OF THE REVISED CODE.

       {¶10} Mr. Graves argues that his convictions for aggravated robbery and felonious

assault are supported by insufficient evidence and are against the manifest weight of the

evidence. He reiterates his venue argument, but, as we concluded above, his argument is without

merit. He also argues that the State failed to establish that he was the person who robbed and
                                                 4


assaulted Mr. Stewart and Mr. Finley. Because Mr. Graves limits his arguments to the issue of

identity, we confine our analysis accordingly.

       {¶11} In determining whether the evidence presented was sufficient to sustain a

conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v.

Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:

       [a]n 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.

Id. at paragraph two of the syllabus. In reviewing a challenge to the weight of the evidence, the

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).

       {¶12} Mr. Stewart testified that he and Mr. Finley were smoking outside the Adams

Street Bar when a man wearing dark sweat pants and a dark hoodie approached them and asked

for directions to Spellman Court. Mr. Stewart was unable to give him directions but suggested

that someone on the bar’s patio might know. The man walked away from Mr. Stewart and Mr.

Finley, and they resumed their conversation. The man returned and pistol-whipped Mr. Finley in

the face, breaking his nose. Mr. Stewart testified that Mr. Finley fell to the ground before getting

up and running into the bar. According to Mr. Stewart, he heard what sounded like a gunshot,

and then the man then pointed the gun at him and demanded his money. Mr. Stewart complied,
                                                 5


giving the man his wallet as well as his car keys, and the man told him to go back in the bar,

which he did.

        {¶13} Similarly, Mr. Finley testified that he was smoking outside the Adams Street Bar

with Mr. Stewart when a man in a black or dark-blue hoodie approached them and asked if they

could give him directions to Spellman Court. The man walked away but returned soon after and

pistol-whipped Mr. Finley. He fell to the ground. When he had recovered, he got to his feet and

ran into the bar.

        {¶14} Ms. Scott testified that, at the time of the robbery, she lived on Spellman Court.

According to Ms. Scott, Mr. Graves came to her house late at night wearing a black hoodie and

told her that he had just robbed two people up the street outside a bar. She testified that he

pulled out a gun and told her that he had hit one of the people in the face with it. He also told her

that he tried to shoot the gun, but it jammed. She also testified that, as he spoke to her, Mr.

Graves had keys in his hand that he claimed to have acquired during the robbery.

        {¶15} Mr. Stewart and Mr. Finley both testified that a man wearing a dark hoodie came

up to them while standing outside a bar and asked for directions to Spellman Court. They also

both testified that the man hit Mr. Finley with the gun, and Mr. Stewart testified that the man

took his wallet and his car keys. According to Ms. Scott, Mr. Graves told her that he had robbed

two people outside of a bar, hitting one with a gun, and taking a set of keys from one of the

people. Viewed in the light most favorable to the State, there was sufficient evidence to

conclude that Mr. Graves robbed Mr. Stewart and Mr. Finley.

        {¶16} Mr. Graves argues that his convictions were against the manifest weight of the

evidence because Mr. Stewart and Mr. Finley could not identify him as the man who robbed

them and because Ms. Scott was not a credible witness. According to Mr. Graves, Ms. Scott’s
                                                  6


testimony lacks credibility because she wanted to get back at him for stealing money from her.

However, as Mr. Graves notes in his brief, the jury was well-aware of Ms. Scott’s potential bias

against Mr. Graves. She testified at length about Mr. Graves stealing money from her, Mr.

Graves’ attorney thoroughly cross-examined her on the issue, and Mr. Graves testified that Ms.

Scott was upset because he had stolen money from her. Furthermore, Mr. Stewart and Mr.

Finley testified that the robber had asked for directions to Spellman Court, which was where Ms.

Scott lived at the time, and Mr. Graves testified that he was unfamiliar with Akron and that he

often needed directions to find his way around.

       {¶17} Mr. Graves suggests that Ms. Scott merely heard the details of the robbery and

then told the police a story inserting him in as the robber. However, in weighing the evidence

and assessing credibility, the jury could have found it significant that the robber asked Mr.

Stewart and Mr. Finley for directions to Spellman Court, which is where Ms. Scott lived and

where Mr. Graves was staying. Having reviewed the record, we cannot conclude that the jury

lost its way when it determined that Mr. Graves was the man who robbed Mr. Stewart and Mr.

Finley. Accordingly, we cannot say that Mr. Graves’ convictions are against the manifest weight

of the evidence.

       {¶18} Mr. Graves’ second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND COMMITTED REVERSIBLE ERROR
       WHEN IT ADMITTED CHARACTER EVIDENCE, EVIDENCE OF OTHER
       ACTS, AND IRRELEVANT EVIDENCE AGAINST APPELLANT.

       {¶19} Mr. Graves argues that the trial court committed plain error when it allowed Ms.

Scott to testify that he stole money from her and that other male members of her family had

committed crimes.
                                                  7


        {¶20} Mr. Graves asserts that Ms. Scott’s testimony that he stole money from her was

impermissible evidence of other acts. See Evid.R. 404(B). However, Mr. Graves admitted to

stealing money from Ms. Scott, and his attorney cross-examined her on this point at length. Far

from being prejudicial, most of Mr. Graves’ defense centered on the fact that he stole money

from her and, therefore, her testimony was not credible, a position he reargues in his second

assignment of error. Based on the facts of this case, we cannot say that the admission of the

testimony affected Mr. Graves’ substantial rights. See Crim.R. 52(A) (“Any error, defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”).

        {¶21} Mr. Graves also argues that Ms. Scott’s references to the legal troubles of her

cousin and her brother were improper. His precise argument is unclear, but he appears to suggest

that this is character evidence prohibited by Evid.R. 404(A). Because Mr. Graves’ counsel did

not object to the testimony, he has forfeited all but plain error on review. See Crim.R. 52(B). To

establish plain error,

        “[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second,
        the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an
        error must be an ‘obvious' defect in the trial proceedings. * * * Third, the error
        must have affected ‘substantial rights[ ]’ [to the extent that it] * * * affected the
        outcome of the trial.”

State v. Hardges, 9th Dist. No. 24175, 2008–Ohio–5567, ¶ 9, quoting State v. Barnes, 94 Ohio

St.3d 21, 27 (2002). However, “[n]otice of plain error under Crim.R. 52(B) is to be taken with

the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

        {¶22} Initially, we note that Ms. Scott’s testimony is not character evidence against Mr.

Graves but, rather, about her brother and another cousin. Furthermore, Mr. Graves, in explaining

that he had come to Akron to attend Ms. Scott’s brother’s trial, also testified that Ms. Scott’s
                                                8


brother was facing criminal charges, and Ms. Scott’s reference to the older cousin was fleeting.

Thus, given the testimony, Mr. Graves has not explained how it was improper under Evid.R.

404. Even assuming that Ms. Scott’s testimony was improper, we cannot say that the brief

reference affected the outcome of the trial or caused a manifest miscarriage of justice. Barnes at

27; Long at paragraph three of the syllabus.

       {¶23} Mr. Graves also suggests that Ms. Scott’s testimony that, “if you don’t tell, it’s

just going to keep happening, and * * * crimes will continue to be committed[]” was improperly

admitted because it referred to his family members. However, Ms. Scott was responding to the

prosecutor’s question about why she felt compelled to report Mr. Graves’ involvement in the

Adams Street Bar robbery, and her response, when read in context, is clearly about her feeling

that it is a civic duty to report crimes generally rather than a statement that her family will

continue to commit crimes. Thus, in this case, we cannot say that this testimony prejudicially

affected Mr. Graves’ substantial rights. See Civ.R. 52(A).

       {¶24} Accordingly, Mr. Graves’ third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN
       VIOLATION OF STRICKLAND V. WASHINGTON, THE SIXTH AND
       FOURTEENTH    AMENDMENTS    TO   THE    UNITED  STATES
       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶25} In Mr. Graves’ fourth assignment of error, he argues that his counsel was

ineffective for not moving to dismiss on the venue grounds raised in his first two assignments of

error. However, as discussed above, this argument is without merit. He also argues that his

counsel was ineffective for failing to object to Ms. Scott’s testimony about Mr. Graves stealing
                                                  9


money from her and her testimony concerning the criminal histories of other members of their

family.

          {¶26} In order to prevail on an ineffective assistance of counsel claim, a defendant

“must show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio

St.3d 22, 2007–Ohio–4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687–688, 694

(1984).

          {¶27} It is clear from the record that Mr. Graves’ counsel allowed Ms. Scott to testify

about Mr. Graves stealing from her because he believed that it would undermine her credibility.

Counsel cross-examined Ms. Scott about her reasons for coming forward and accusing Mr.

Graves of robbing Mr. Stewart and Mr. Finley. Mr. Graves also admitted to stealing the money

from her and testified that she had threatened him if he did not return the money. Given that Ms.

Scott was the only witness who tied Mr. Graves to the robbery, we cannot say that counsel was

ineffective for attempting to undermine her credibility by establishing her bias against Mr.

Graves. See State v. Elmore, 111 Ohio St.3d 515, 2006–Ohio–6207, ¶ 116 (“Debatable trial

tactics generally do not constitute ineffective assistance of counsel.”).

          {¶28} Mr. Graves also argues that his counsel was ineffective for not objecting to Ms.

Scott’s testimony that she felt compelled to testify because otherwise “crimes will continue to be

committed.” Contrary to Mr. Graves’ assertion that his counsel failed to object to the testimony,

not only did his counsel object to the testimony, he actually objected immediately before Ms.

Scott made the comment. However, the trial court overruled the objection. Thus, to the extent

that the testimony was improper, we cannot conclude that Mr. Graves’ counsel was ineffective
                                                10


because he timely objected to the testimony and Mr. Graves has not suggested any other action

his counsel could or should have taken after his objection had been overruled. See Cardone v.

Cardone, 9th Dist. No. 18349, 1998 WL 224934, * 8 (May 6, 1998) (noting that it is not this

Court’s duty to create an appellant’s argument).

       {¶29} Finally, Mr. Graves argues that his counsel should have objected to Ms. Scott’s

testimony that she had “an older cousin and a brother and now a younger cousin [(Mr. Graves)]

that[ are] all facing the same fate.” However, even assuming that Mr. Graves’ counsel was

deficient for not objecting to Ms. Scott’s testimony, we cannot conclude that Ms. Scott’s

reference to Mr. Graves, her brother, and her older cousin prejudiced Mr. Graves. Mr. Graves

testified that he had come down to visit Ms. Scott so that he could attend her brother’s trial.

Given that Mr. Graves himself brought up Ms. Scott’s brother’s legal problems, it is difficult to

how Ms. Scott mentioning him was prejudicial.           Furthermore, as discussed in the third

assignment of error, the reference to the older cousin was fleeting. Given that Mr. Stewart and

Mr. Finley testified that the robber was looking for Spellman Court, where Ms. Scott lived, thus

bolstering Ms. Scott’s testimony that Mr. Graves was the man who robbed them, we cannot

conclude that, but for the fleeting reference to Ms. Scott’s older cousin, there was a reasonable

probability that the outcome of the trial would have been different.

       {¶30} Mr. Graves’ fourth assignment of error is overruled.

                                              III.

       {¶31} Mr. Graves’ assignments of error are overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.
                                                11




       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.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

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