[Cite as State v. Duncan, 2013-Ohio-2384.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 8-12-15

        v.

KEVIN DUNCAN,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                            Trial Court No. 12-03-0066

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                             Date of Decision: June 10, 2013




APPEARANCES:

        Marc S. Triplett for Appellant

        William T. Goslee and Daniel J. LaRoche for Appellee
Case No. 8-12-15


SHAW, J.

        {¶1} Defendant-appellant Kevin L. Duncan (“Duncan”) appeals the

October 22, 2012, judgment of the Logan County Common Pleas Court sentencing

Duncan to five years in prison after a jury convicted Duncan of Robbery, in

violation of R.C. 2911.02(A)(2), a felony of the second degree.1

        {¶2} On March 27, 2012, Duncan was indicted in a two-count indictment

for Robbery (Count I), in violation of R.C. 2911.02(A)(2), a felony of the second

degree, and Trafficking in Drugs (Count II), in violation of R.C. 2925.03(A)(1), a

felony of the fifth degree. (Doc. 2).

        {¶3} On March 30, 2012, Duncan was arraigned and pled not guilty to the

charges. (Doc. 9). An entry reflecting this was filed April 9, 2012. (Id.)

        {¶4} On May 2, 2012, the State filed a Bill of Particulars. (Doc. 13). The

Bill of Particulars alleged as to Count I, the Robbery charge, that on February 2,

2012, Duncan forcibly took $20 cash and a digital recorder from a confidential

informant during a controlled drug buy. (Id.) It was alleged that the informant

had red marks on her neck from the force used by Duncan. (Id.) As to Count II of

the indictment, the Trafficking in Drugs charge, the State alleged that on January

19, 2012, the confidential informant purchased $20 worth of suspected crack

cocaine from Duncan. (Id.)


1
  Duncan was also sentenced to serve twenty-two months in prison for violating the terms of his post
release control, to be served consecutively to his five year prison term on the Robbery conviction.

                                                -2-
Case No. 8-12-15


       {¶5} On October 2-3, 2012, a jury trial was held. At trial, the State called

Stormi Kiser (“Kiser”), the confidential informant involved in this case, and

Detective Keith LeVan (“Detective LeVan”), the Detective that worked on this

case. Following the testimony of these two witnesses, the State rested. Duncan’s

counsel cross-examined both of the State’s witnesses but did not call any

witnesses in its case-in-chief, and rested. Following closing arguments and jury

instructions, the case was submitted to the jury.

       {¶6} After deliberating, the jury found Duncan guilty of the Robbery

charge, but found him not guilty of the Trafficking in Drugs charge. The court set

sentencing for October 8, 2012.

       {¶7} On October 8, 2012, the court sentenced Duncan to five years in

prison on the Robbery conviction. (Doc. 50). Finding that Duncan was also in

violation of his Post-Release Control on another charge out of Clark County, the

court also sentenced Duncan to twenty-two months in prison, to be served

consecutive to the Robbery charge in this case. (Id.) A judgment entry reflecting

this sentence was filed October 22, 2012. (Id.)

       {¶8} It is from this judgment that Duncan appeals, asserting the following

assignments of error for our review.

                    ASSIGNMENT OF ERROR 1
       COUNT I OF THE VERDICT IS NOT BASED UPON
       SUFFICIENT EVIDENCE.


                                         -3-
Case No. 8-12-15


                    ASSIGNMENT OF ERROR 2
        COUNT I OF THE VERDICT IS NOT SUPPORTED BY THE
        WEIGHT OF THE EVIDENCE.

                    ASSIGNMENT OF ERROR 3
        THE TRIAL COURT ERRED WHEN IT IMPOSED COSTS
        AND ADDITIONAL FEES IN ITS SENTENCING ENTRY.

                                    First Assignment of Error

        {¶9} In his first assignment of error, Duncan argues that there was

insufficient evidence to convict him. Specifically, Duncan claims that the State

failed to prove “venue” in his Robbery conviction, as there was no explicit

testimony that the crime occurred in Logan County. Duncan does not argue that

there was insufficient evidence to support the remaining elements of his

conviction.2

        {¶10} Sufficiency of the evidence is a test of adequacy rather than

credibility or weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). Whether the evidence is legally sufficient to sustain a verdict is a question

of law. Id. In reviewing the record for sufficiency, 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 proven beyond a

reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113 (1997).




2
 Rather, Duncan argues in the next assignment of error that his conviction was against the manifest weight
of the evidence.

                                                   -4-
Case No. 8-12-15


       {¶11} In a criminal case, venue is not a material element, but the State must

still prove venue beyond a reasonable doubt. State v. Headley, 6 Ohio St.3d 475,

477 (1983). “Venue is satisfied where there is a sufficient nexus between the

defendant and the county of the trial.” State v. Chintalapalli, 88 Ohio St.3d 43, 45

(2000). Venue need not be proven in express terms. Id. Rather, it can be

established by all of the facts and circumstances viewed in the light most favorable

to the state. Id. In addition, it has been stated that a trial court has broad

discretion to determine the facts which would establish venue. See, e.g., State v.

Mills, 6th Dist. No. WM–09–014, 2010-Ohio-4705, ¶ 22; State v. Gonzalez, 3d

Dist. No. 14-09-09, 2012-Ohio-982; State v. Issa, 8th Dist. No. 90622, 2008-Ohio-

5592, ¶ 12.

       {¶12} On appeal, Duncan claims that “venue” was not explicitly

established with regard to his Robbery conviction. At the outset, we would note

that Duncan is correct in arguing that there was no testimony specifically stating

the Robbery took place in Logan County.         However, there was a significant

amount of testimony from Detective LeVan from which it could be properly

deduced that the Robbery took place in Logan County.

       {¶13} Detective LeVan testified that he had been employed with the Logan

County Sherriff’s Office for over 31 years, which included 6 years as a detective.

(Tr. at 148). Regarding the incident in question, Detective LeVan testified that on


                                        -5-
Case No. 8-12-15


February 2, 2012, he picked up Kiser then drove to a “county” employee parking

lot where he prepared Kiser for the controlled buy. (Tr. at 161). Detective LeVan

testified that the parking lot was located “across the street * * * from the old

Logan County Sheriff’s Office, which is now the Logan County JDC.” (Tr. at

162). Detective LeVan testified that from there, he drove Kiser to the parking lot

of the Logan County Library and parked in that lot while Kiser walked to make the

drug buy. (Tr. at 162). Detective LeVan further testified that after exiting the

vehicle, Kiser returned approximately five minutes later. (Tr. at 163).

       {¶14} Detective LeVan testified that he understood the controlled purchase

was to occur at 120 West Brown Street. (Tr. at 162-63). Detective LeVan also

testified he was familiar with the area as his department had previously made drug

purchases there.   (Tr. at 163).    Finally, after the Robbery, Detective LeVan

testified that he contacted Officer Comstock of the Bellefontaine Police

Department to assist him in searching 120 West Brown Street for Duncan.

       {¶15} Although Detective LeVan may not have expressly stated that the

address where the Robbery occurred was in Logan County, his testimony

regarding the facts and circumstances surrounding the incident, including the

various Logan County locations and landmarks, was sufficient to support a

finding, beyond a reasonable doubt, that the Robbery occurred in Logan County.

Accordingly, the first assignment of error is overruled.


                                         -6-
Case No. 8-12-15


                            Second Assignment of Error

       {¶16} In his second assignment of error, Duncan argues that his Robbery

conviction was against the manifest weight of the evidence. Specifically, Duncan

argues that the testimony against him by Kiser was not credible, that the State did

not establish beyond a reasonable doubt that it was Duncan that robbed Kiser, and

that the State did not establish proof beyond a reasonable doubt that Kiser had

even been robbed.

       {¶17} The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus.

       {¶18} Unlike our review of the sufficiency of the evidence, an appellate

court's function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Volkman,

supra, at ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing

whether the trial court's judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

Id. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and


                                         -7-
Case No. 8-12-15


determine whether in resolving conflicts in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1–05–70,

2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983); Thompkins, 78 Ohio St.3d at 387.

       {¶19} Duncan was convicted of Robbery, in violation of R.C.

2911.02(A)(2), which reads as follows.

       (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:

       ***

       (2) Inflict, attempt to inflict, or threaten to inflict physical
       harm on another;

       {¶20} In order to prove that Duncan committed the Robbery as alleged, the

State first called Kiser, a confidential informant that had been working with

Detective LeVan to conduct controlled drug buys. Kiser testified that in 2007,

Detective LeVan approached her and asked her if she wanted to work as a

confidential informant. (Tr. at 70). Kiser testified at the time she did not accept

the offer. (Tr. at 70). Later, in early 2012, Kiser testified that she approached

Detective LeVan and began working for him as a confidential informant. (Tr. at

71).



                                         -8-
Case No. 8-12-15


          {¶21} According to Kiser, she brought up Duncan when speaking with

Detective LeVan as a person she believed to be selling drugs. (Tr. at 72). Kiser

testified that she then set up a buy with Duncan. (Tr. at 76). Kiser further testified

that on January 19, 2012, she proceeded to Duncan’s apartment behind Wal Mart

in Bellefontaine and purchased drugs from Duncan. (Tr. at 81). Kiser testified

that Detective LeVan drove her to the drug buy, searched her, and put an audio

recording device on her.3 (Tr. at 79). Kiser testified that she completed the buy in

Duncan’s apartment, purchasing $20 worth of crack-cocaine.

          {¶22} Kiser testified that she set up a second drug buy with Duncan on

February 2, 2012, which was to take place in a different location. (Tr. at 96). She

testified that Detective LeVan picked her up over by the library, searched her,

gave her money to purchase the drugs, placed two recording devices on her, and

then dropped her off at the library, near the location of the alleged drug buy. (Tr.

at 96).

          {¶23} Kiser testified that when she got to the designated house for the drug

buy, Vance Brown, a third party, began speaking with her through the window

about money that she purportedly owed him. Kiser testified that she met Duncan

on the enclosed back porch of Vance Brown’s residence. (Tr. at 98). Kiser

testified that she handed Duncan the $20 that Detective LeVan had given to her to


3
 This incident led to the “Trafficking in Drugs” charge that Duncan was charged with in this case. Duncan
was ultimately acquitted of that charge.

                                                  -9-
Case No. 8-12-15


buy drugs. (Tr. at 99). According to Kiser, Duncan then told her to “come here”

for a minute, so she moved back toward Duncan, and that Duncan then

“rough[ly]” grabbed the wire off of her left shoulder. (Tr. at 99). Kiser testified

that Duncan then “palmed” her ear, putting his palm to her ear with “strong force.”

(Tr. at 100). She testified that such a degree of force was used that she went to the

ground. (Id.) Further, Kiser testified that Duncan was then trying to “figure out

where the rest of the wire went because it came out of the top of [her] shirt.” (Tr.

at 100). Kiser testified that she struggled against Duncan trying to get away, and

ultimately ran back to Detective LeVan’s car. (Id.)

       {¶24} According to Kiser, Duncan had taken one of the audio recording

devices, and the money she had given Duncan to purchase drugs. (Tr. at 101).

Kiser testified that from the altercation her body was sore and her neck had red

marks on it, which was confirmed by a picture of the red marks entered into

evidence. (State’s Ex. 8).

       {¶25} Audio from the second recording device that was not taken by

Duncan was played at the trial. Two different male voices can be heard on the

recording. Kiser testified that the first male that can be heard talking to her is

Vance Brown, and the second is Duncan. A brief altercation can be heard between

Kiser and the second male voice, wherein Kiser shouts, and says “Quit playing,

man. Get the fuck off of me. Get off. Get off – off.” (State’s Ex. 5; Tr. at 107).


                                        -10-
Case No. 8-12-15


           {¶26} After Kiser testified, Duncan’s attorney cross-examined her.                  On

cross-examination, Kiser admitted to having a 2007 conviction for drug possession

and that she had off and on been using drugs. (Tr. at 117, 125). She also admitted

that she had recent felony convictions in Logan County for theft and obstruction of

justice, and that some charges against her had been dismissed. (Tr. at 117-18).

           {¶27} Once Kiser’s testimony was complete, the State called Detective

LeVan. Detective LeVan testified that at the time of this incident he was a

Detective with the Logan County Sheriff’s Office.4 (Tr. at 148). He testified that

he had worked in law enforcement for over 31 years, and that he had been a

detective for six years. (Id.)

           {¶28} Detective LeVan testified that he made a deal with Kiser that she

would act as a confidential informant doing controlled drug buys in exchange for

money, $50 per buy.                (Tr. at 150).           Detective LeVan testified that he never

approached the prosecutor on her behalf to get any charges pending against her

reduced or dropped and that approaching the prosecutor was never part of any deal

that he made with Kiser. (Id.)

           {¶29} Detective LeVan testified that Kiser brought Duncan’s name to her,

and that he had never heard of Duncan prior to Kiser bringing him up. (Tr. at




4
    Detective LeVan testified that he had since retired.

                                                      -11-
Case No. 8-12-15


152).    Detective LeVan testified that on January 19, 2012, he conducted a

controlled drug purchase along with Kiser.

        {¶30} Detective LeVan testified that on February 2, 2012, he and Kiser

convened to conduct a second controlled drug buy from Duncan.             Detective

LeVan testified that on February 2, 2012, he picked up Kiser and then drove her to

a parking lot where he searched Kiser, placed two audio recording devices on her,

and gave her money to purchase drugs with. (Tr. at 161). Detective LeVan

testified that he then drove Kiser to the Logan County Library’s parking lot and let

her out so that she could walk to the designated house to make the purchase. (Tr.

at 162).    According to Detective LeVan, Kiser got out of the car and walked

across the street. (Tr. at 163). Detective LeVan testified that Kiser returned about

five minutes later frantic, crying and out of breath. (Tr. at 163). Detective LeVan

testified that Kiser said she had been robbed and assaulted. (Tr. at 164). He

further testified that Kiser was “disheveled” and that “she had red marks around

the neck area of her face.” (Id.)

        {¶31} Detective LeVan testified that upon Kiser’s return he contacted local

law enforcement, which subsequently responded to the scene and helped him

search the Brown residence for Duncan. (Tr. at 166). Detective LeVan testified

that they found Brown at the residence but not Duncan. (Tr. at 165).




                                        -12-
Case No. 8-12-15


       {¶32} On cross-examination, Detective LeVan testified that he did not have

knowledge of Kiser’s pending legal trouble. (Tr. at 170). Detective LeVan also

admitted that he did not actually see Duncan enter or leave the Brown residence at

or around the time of the incident, though he was not parked in a position where

he could see the residence. (Tr. at 178). Detective LeVan further testified that

Brown was arrested and had a large sum of money and an EBT food stamp card.

(Tr. at 179).

       {¶33} After Detective LeVan testified, the State rested. Duncan did not call

any witnesses to testify on his behalf.

       {¶34} On appeal, Duncan claims that the State did not establish proof

beyond a reasonable doubt that Duncan was the individual who robbed Kiser, or

that Kiser was even the victim of the robbery. Duncan further argues that Kiser’s

testimony was not credible based on her struggles with drug addiction, and her

legal problems.

       {¶35} Despite Duncan’s arguments on appeal, the jury heard testimony

from Kiser that Duncan took the $20 that had been given to her to purchase drugs

and one of the two audio recording devices Kiser had placed on her by Detective

LeVan to record the controlled drug buy. The jury also heard Kiser testify that

Duncan palmed the side of her face, and saw photographs that Detective LeVan




                                          -13-
Case No. 8-12-15


took indicating the red marks that were left on her neck. The money and the audio

recording devices that Kiser claimed were taken by Duncan were not recovered.

      {¶36} In addition to Kiser’s testimony, the jury heard the audio recording

from the incident from the second audio recording device that was placed on

Kiser, wherein Kiser could be heard telling someone to “get off” of her. (State’s

Ex. 5). The audio is thus consistent with Kiser’s testimony regarding the events.

      {¶37} The jury also heard testimony from Detective LeVan regarding

Kiser’s physical and emotional state upon her return to his vehicle following the

robbery, including Detective LeVan’s observations regarding Kiser’s injuries from

the altercation. (Tr. at 163-64). The jury thus heard testimony of a theft that had

occurred and testimony of physical harm to Kiser.

      {¶38} While Duncan argues that Kiser’s testimony and identification of

Duncan as the perpetrator were not credible, the jury was completely apprised

through direct and cross-examination of the benefits Kiser was getting for acting

as a confidential informant, and her battles with drug addiction. Defense counsel

tried to make a connection between some charges that had been dropped that were

pending against Kiser and her testimony in the court. However, Detective LeVan

steadfastly testified that the only compensation he negotiated with Kiser was

financial in nature, and that he never stated or implied he would speak to the

prosecutor on Kiser’s behalf. (Tr. at 150, 170). In fact, Detective LeVan testified


                                       -14-
Case No. 8-12-15


that he did not know at the time he was working with Kiser that she had charges

pending against her. (Tr. at 170).

       {¶39} The jury, who saw and heard Kiser’s testimony for itself, found

Kiser’s retelling of the events credible. Under these circumstances, we cannot find

that the factfinder “clearly lost its way” or that there was a “manifest miscarriage

of justice.” Therefore, we do not find that Duncan’s conviction for Robbery was

against the manifest weight of the evidence. Accordingly, Duncan’s assignment

of error is overruled.

                            Third Assignment of Error

       {¶40} In his third assignment of error, Duncan argues that the trial court

imposed court costs and other financial sanctions in its sentencing entry that were

not addressed in open court at the sentencing hearing. Duncan cites the case of

State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, for the proposition that court

costs may not be imposed in a judgment entry when they were not imposed in

open court. According to Joseph, a case remanded to the trial court for this error

is done so for the limited purpose of informing a defendant of costs.

       {¶41} A review of the record indicates that court costs were imposed upon

Duncan in the court’s sentencing entry but were not addressed in open court. In its

brief, the State does not contest that there was an error in this instance and

concedes that the case should be remanded to the trial court so that the trial court


                                        -15-
Case No. 8-12-15


may address the issues of financial sanctions. Based upon our review of the

record and the State’s concession, Duncan’s third assignment of error is sustained.

       {¶42} For the foregoing reasons, the judgment of the Logan County

Common Pleas Court is affirmed in part and reversed in part, and remanded for

limited resentencing proceedings to address any potential court costs.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                               Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                       -16-
