[Cite as State v. Keller, 2019-Ohio-1397.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Appellee,                                  :     CASE NO. CA2018-07-137

                                                   :            OPINION
    - vs -                                                       4/15/2019
                                                   :

RONDALE E. KELLER,                                 :

        Appellant.                                 :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2018-02-0293



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Rondale E. Keller, appeals his conviction in the Butler County Court

of Common Pleas for robbery. For the reasons stated below, we affirm his conviction.

        {¶ 2} In February 2018, appellant approached a woman as she was opening the

driver's side door of her vehicle which was parked on the street in front of her house.

Appellant pressed against the door to pin the victim to the frame of the vehicle and then used

his arm to sweep the victim away from the door. During the sweeping motion, the victim fell
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to the ground. As the victim was falling, appellant entered the vehicle, secured the keys, and

started the ignition. Appellant drove away while the victim was still on the ground. After

appellant drove away, the victim picked herself off the ground, walked toward the sidewalk,

and called 911.

       {¶ 3} Responding police officers were able to quickly locate the vehicle a few blocks

away. Officers used a police dog to track appellant to a nearby house. As law enforcement

converged on the house, a resident exited the front door to inquire about the police presence.

Those officers asked to search the home and the resident consented. Officers entered the

house and found appellant in an upstairs bedroom. Officers later found the victim's car keys

partially concealed in an eyeglass case in the closet of the same bedroom in which they

found appellant. The victim positively identified appellant as the perpetrator after an officer

brought her to the house. Appellant was arrested and taken into custody.

       {¶ 4} Based on those facts, appellant was indicted for robbery, a second-degree

felony, in violation of R.C. 2911.02(A)(2). The case proceeded to a jury trial. The jury found

appellant guilty as charged and the court sentenced him to five years in prison.

       {¶ 5} Appellant appeals the conviction raising one assignment of error:

       {¶ 6} MR. KELLER'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 7} In his sole assignment of error, appellant argues that his conviction was against

the manifest weight of the evidence because he testified that he did not touch the victim.

Specifically, appellant asserts he took the vehicle because he found it unlocked, with the

engine running, and no other people around. We find that appellant's argument lacks merit.

       {¶ 8} An appellate court reviews a manifest weight of evidence challenge by

examining the "inclination of the greater amount of credible evidence, offered in a trial, to

support one side of the issue rather than the other." State v. Cobb, 12th Dist. Butler No.
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CA2007-06-153, 2008-Ohio-5210, ¶ 94. To determine whether a jury verdict is against the

manifest weight of the evidence, the reviewing court must examine the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, and determine

whether in resolving conflicts in the evidence, the jury clearly lost its way and created a

manifest miscarriage of justice that requires the reversal of the conviction and an order for a

new trial. State v. Wilks, 154 Ohio St. 3d 359, 2018-Ohio-1562, ¶ 168. While an appellate

court review must consider witness credibility and weight of the evidence, those factors are

primarily for the jury to decide. State v. Gerdes, 12th Dist. Butler No. CA2018-03-056, 2019-

Ohio-913, ¶ 10. Only in the exceptional instance where the evidence weighs heavily against

the conviction will an appellate court overturn the conviction on a manifest weight challenge.

State v. Griffin, 12th Dist. Clermont No. CA2017-10-150, 2018-Ohio-3119, ¶ 7.

       {¶ 9} Relevant to this review, a person commits robbery when he inflicts, attempts to

inflict, or threatens to inflict physical harm on another, while committing, attempting to

commit, or fleeing a theft offense. R.C. 2911.02(A)(2). Physical harm to a person is any

injury, illness, or other physiological impairment, regardless of its gravity or duration. R.C.

2901.01(A)(3). A theft offense is, inter alia, a violation of R.C. 2913.02(A)(1), which prohibits

the purposeful deprivation of property from another by knowingly exerting or obtaining control

over that property without consent of the owner. R.C. 2913.01(K)(1).

       {¶ 10} At trial, appellant testified on his own behalf. During his testimony, appellant

admitted that he stole the victim's vehicle, thereby committing a theft offense. Therefore, the

only question for us to decide is whether the appellant inflicted physical harm on the victim

during the commission of the theft.

       {¶ 11} After our review of the record, we cannot find that the jury clearly lost its way in

convicting appellant of robbery. The prosecutor presented credible evidence of the victim's

injury. This evidence included photographs and testimony from multiple witnesses.
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       {¶ 12} At trial, the victim testified that she was able to accurately identify appellant as

the perpetrator because she clearly saw him before and during the attack. The victim stated

that appellant used his arm to push her away from the car and because of that force she fell

hard on the street. The victim experienced soreness in her arms and legs and a minor

abrasion to her right elbow because of the fall. The 911 call by the victim was admitted into

evidence, in which the victim can be heard saying in a frantic voice that she was just pushed

down while someone stole her vehicle.

       {¶ 13} Both the victim and another witness testified that the victim did not suffer any

pain or abrasions prior to her contact with appellant. The first responding patrol officer also

testified that he saw the injury to the victim. Furthermore, a police detective testified that

when he interviewed the victim a few hours after the incident, he saw blood on the elbow

portion of the victim's shirt sleeve that indicated to him the injury was fresh. Finally, the

prosecutor presented photographs of the victim taken shortly after the event that clearly

showed the elbow injury.

       {¶ 14} In addition to his testimony that he found the vehicle unattended with the

engine running, appellant testified that he was "intoxicated" when he committed the offense,

because he had consumed alcohol the night before. However, on cross-examination

appellant wavered on both the quantity and type of alcohol he consumed the previous night.

Moreover, he admitted that he had stopped drinking and slept for several hours before

encountering the victim. Despite claiming intoxication, appellant was able to give a detailed

account of the time leading up to and after the offense.

       {¶ 15} It is not against the manifest weight of the evidence when a trier of fact believes

the testimony of the prosecution's witness. State v. Martino, 12th Dist. Butler No. CA2017-

09-139, 2018-Ohio-2882, ¶ 13. While appellant testified in his defense that he did not even

see another person around the vehicle, it is apparent the jury found that portion of his
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testimony unbelievable. As noted above, it is the province of the jury to make credibility

determinations. The jury is free to believe or disbelieve the testimony of any witness at trial.

State v. Erickson, 12th Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 42.

       {¶ 16} Accordingly, appellant's conviction was not against the manifest weight of the

evidence and his sole assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       RINGLAND and M. POWELL, JJ., concur.




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