[Cite as State v. Atkins, 2017-Ohio-7282.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 10-17-04

        v.

CASEY L. ATKINS,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Mercer County Common Pleas Court
                            Trial Court No. 16-CRM-139

                                       Judgment Affirmed

                            Date of Decision:   August 21, 2017




APPEARANCES:

        Richard M. Delzeith for Appellant

        Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Case No. 10-17-04


ZIMMERMAN, J.,

       {¶1} Defendant-appellant, Casey Atkins (“Atkins”) appeals the judgment

and sentence of the Mercer County Common Pleas Court wherein he was found

guilty of one count of Robbery in violation of 2911.02(A)(3) by R.C. 2911.02(B), a

felony of the third degree, and one count of Theft in violation of 2913.02(A)(1) and

2913.02(B)(2), a felony of the fifth degree.

                          Facts and Procedural History

       {¶2} On November 17, 2016, Atkins was indicted on two criminal counts in

Mercer County: Count One, Robbery, in violation of R.C. 2911.02(A)(3) by R.C.

2911.02(B), a felony of the third degree; and Count Two, Theft, in violation of R.C.

2913.02(A)(1) and (B)(2), a felony of the fifth degree. The charges stem from a

bank robbery that occurred at the Second National Bank in Celina, Ohio on

September 23, 2016. Atkins pled not guilty to each count on November 28, 2016.

       {¶3} On January 18-19, 2017, the case proceeded to a trial to the court. At

trial the State called ten (10) witnesses. However, only the testimonies of the

following witnesses are relevant in our appellate review as the appellant has only

appealed the trial court’s verdict on his robbery conviction: Allison Byron

(“Byron”), the bank teller at Second National Bank; Atkins’ two co-defendants,

Timothy Rios (“Rios”) and Joshuia Bursey (“Bursey”); and Detective Ron Waltmire

(“Detective Waltmire”), with the Celina Police Department.


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        {¶4} At the conclusion of the State’s case in chief, defense counsel made a

Criminal Rule 29 motion for acquittal arguing that the State failed to prove all of

the elements of robbery. The trial court overruled the Rule 29 motion and Atkins

did not present a defense thereafter.

        {¶5} The trial court found Atkins guilty of Robbery and Theft and sentenced

him to thirty months in prison.1 On March 22, 2017, the trial court filed its judgment

entry memorializing Atkins’ sentence. It is from this judgment that Atkins appeals,

asserting the following assignment of error for our review.

                                ASSIGNMENT OF ERROR

        THE STATE FAILED TO INTRODUCE SUFFICIENT
        EVIDENCE OF THE CHARGE OF ROBBERY, A RESULTING
        CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
        THE EVIDENCE AND DEPRIVED THE DEFENDANT OF
        SUBSTANTIVE AND PROCEDURAL DUE PROCESS IN
        VIOLATION OF THE FOURTEENTH AMENDMENT TO
        THE UNITED STATES CONSTITUTION.

        {¶6} In his sole assignment of error, Atkins argues that his conviction for

robbery was not supported by sufficient evidence and is against the manifest weight

of the evidence. Specifically, Atkins contends that the element of “force” was not

proven by the State to satisfy that particular element of robbery. Because we apply

different standards of review for sufficiency and manifest weight of the evidence,

we will discuss those standards separately. However, we will analyze appellant’s


1
 Atkins was given credit for 153 days served. Atkins was also sentenced to pay $6,692 in restitution to
Second National Bank.

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arguments together. We note that the trial court found the theft and robbery

convictions were merged. Atkins does not contest his conviction and sentence for

Theft under Count Two, so we will just review the evidence as it relates to his

Robbery conviction.

                               Sufficiency of Evidence

       {¶7} When reviewing a case to determine whether the record contains

sufficient evidence to support a conviction, our role “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, at

paragraph two of the syllabus.

       {¶8} The claim of insufficient evidence raises a question of law and does not

allow the court to weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 175.

Thus, this standard “gives full play to the responsibility of the trier of fact * * * to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts”. Jackson v. Virginia, 443 U.S. 307,

319 (1979). Accordingly, the weight given to the evidence and the credibility of




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witnesses are issues for the trier of fact. State v. Thomas, 70 Ohio St.2d 79, 79-80

(1982), State v. DeHass, 10 Ohio St.2d 230 (1967).

                                  Manifest Weight

       {¶9} When determining whether a conviction is against the manifest weight

of the evidence, we “will not reverse a conviction where there is substantial evidence

upon which the court could reasonably conclude that all the elements of an offense

have been proven beyond a reasonable doubt”. State v. Eskridge, 38 Ohio St.3d 56

(1988), at paragraph two of the syllabus.

       {¶10} In reviewing whether the trial court’s judgment was against the weight

of the evidence, the appellate court sits as the “thirteenth juror” and examines the

conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387. In taking on

this role, this court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

whether, in reviewing the evidence, the trial court clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed. Id. In

making this analysis, we must be mindful that determinations of credibility and

weight of the testimony remain within the jurisdiction of the trier of fact. DeHass,

supra, paragraph one of the syllabus.

       {¶11} When applying the manifest weight standard, “[o]nly in exceptional

cases, where the evidence ‘weighs heavily against the conviction’, should an


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appellate court overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen

No. 1-11-34, 2012-Ohio-5233, ¶9, quoting State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, ¶119. “Weight of the evidence concerns ‘the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party having the

burden of proof will be entitled to their verdict, if, on weighing the evidence in their

minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics,

but depends on its effect in inducing belief.’ ” (Emphasis omitted.) Thompkins,

quoting Black’s Law Dictionary 1594 (6th Ed.1990).

                                       Analysis

       {¶12} In this case, Atkins was indicted for Robbery in violation of R.C.

2911.02(A)(3) which reads:

       (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:

             ***

       (3)    Use or threaten the immediate use of force against another.

Force is defined by R.C. 2901.01(A)(1) as, “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing”. (Emphasis

added.) “By its plain language, the definition provides ‘any’ violence, compulsion


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or constraint by ‘any means.’ ” State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-

Ohio-446, citing State v. Euton, 3d Dist. Auglaize No. 2-06-35, 2007-Ohio-6704,

quoting R.C. 2901.01(A)(1). “Simply put, ‘any’ means ‘any’. Id. “As used in R.C.

291.01(A)(1) ‘any’ is an adjective.” Id. “As an adjective, ‘any’ is defined as: [o]ne

or some, regardless of kind, quantity, or number; an indeterminate number or

amount.’ ” Id., quoting The American Heritage Dictionary 117 (2d College Ed.

1985).

         {¶13} The definition of force includes force by any violence, compulsion or

constraint. Black’s Law Dictionary defines compulsion as “[t]he act of compelling;

the quality, state, or condition of being compelled.” Stevens, supra, quoting Black’s

at 348. “Black’s Law Dictionary also describes, ‘[c]ompulsion can take other forms

than physical force, but in whatever form it appears * * * [i]t can best be considered

under the heads of obedience to orders, material coercion, duress per minas, and

necessity.” Stevens, quoting Turner, Kenny’s Outlines of Criminal Law 54 (16th

Ed. 1952).

         {¶14} Historically this Court has determined that “the key inquiry for

determining whether the State presented sufficient evidence on the element of force

is whether the ‘victim’s will was overcome by fear or duress.’ ” Stevens, Id., citing

State v. Wine, 3d Dist. Auglaize No. 2-12-01, 2012-Ohio-2837, at ¶40, quoting In

re Forbess, 3d Dist. Auglaize No. 02-09-20, 2010-Ohio-2826, citing State v. Heft,


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3d Dist. Logan No. 08-09-08, 2009-Ohio-5908, ¶88, citing State v. Eskridge, supra.

Further, we have found that, “[w]hile this inquiry is taken from State v. Eskridge

where the victim was a young child, this inquiry is not limited to such cases since

Eskridge cited to State v. Martin, 77 Ohio App. 553 (9th Dist. 1946), where the

victim was an adult, and stated this standard was a general rule of law”. Stevens,

Id. quoting Wine, citing State v. Rupp, 7th Dist. Mahoning No. 05 MA 166, 2007-

Ohio-1561, ¶25-28.

       {¶15} In our review of the record, the State produced evidence that on

September 23, 2016, Joshuia Bursey (“Bursey”) entered the Second National Bank

in Celina, Ohio, handed the bank teller, Allison Byron, a bag and said “this is a

robbery, put the money in the bag”. (Tr. 13). Without hesitation, Byron complied

with Bursey’s demand by placing the money from her bank drawer in the bag.

Bursey then asked Byron if she was working alone, and ordered her to put the money

from another teller’s bank drawer in the bag as well. (Tr. 13-14). When Byron

finished, she returned the bag (filled with money) to Bursey, who then fled the bank.

Bursey was in the bank for less than three minutes.

       {¶16} The State’s evidence revealed that Bursey had a long history of drug

abuse and the demanding debt associated with it. It was after Bursey robbed a bank

in Fort Wayne, Indiana (on or about September 19, 2016) to pay off his then existing

drug debt that he met Casey Atkins (“Atkins”). At this point, Atkins began to supply


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Bursey with heroin which resulted in Bursey owing Atkins money. So, in order to

pay this debt (to Atkins), the two planned for Bursey to rob another bank. (Tr. 250-

251).

        {¶17} Bursey testified that Atkins chose a bank in Michigan for him (Bursey)

to rob. Atkins then rented a car to be used in the robbery. (Tr. 251). Bursey further

testified that co-defendant, Timothy Rios (“Rios”), a friend of Atkins’, joined to

assist in the planning and execution of the robbery. However, Bursey got a “bad

feeling” about traveling to Michigan to rob a bank, so, on the evening of September

22, 2016 and into the early morning hours of September 23, 2016, the three men

decided to look for a different bank to rob. (Tr. 252 – 254).

        {¶18} Bursey’s testimony revealed that on the morning of September 23,

2016, Atkins gave money to Bursey for heroin. (Tr. 256). Thereafter, Atkins,

Bursey and Rios left Ft. Wayne, together in the same car, followed by Kathryn

Howard (“Howard”) and Samantha Craft (“Hula”), friends of Atkins, in another car,

looking for a bank to rob.

        {¶19} Eventually, the group ended up in Celina, Ohio where they stopped to

eat at a Burger King, but only Howard and Hula entered the restaurant. While

Howard and Hula were in the restaurant, Atkins moved their car while Rios and

Bursey went across the street to a Sunoco gas station to get bags for the robbery.




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Rios and Bursey then drove by Second National Bank to arrange a getaway plan and

then met back at Burger King with Atkins to put their plan into action.

      {¶20} Pursuant to their plan, Rios and Bursey left Burger King and drove to

Second National Bank for Bursey to commit the robbery while Atkins left the area

with Howard and Hula. The group planned to meet after the robbery. Thereafter,

while Rios waited in the getaway car, Bursey entered Second National Bank,

committed the robbery, and fled the scene (with Rios). When they returned to Fort

Wayne, Bursey and Rios met up with Atkins, and the money was divided. (Tr. 280).

      {¶21} When questioned, Bursey admitted to robbing the bank testifying as

follows:

      Q. (Prosecuting Attorney)          When you went in, did you see
      anybody working?
      A. Yeah. There was just one lady.
      Q. And did you talk to her?
      A. Yeah. I walked in, and I - -I - - I said, I walked in, and I - - I
      can’t remember my exact words, but I basically said, you know,
      this is a robbery, or you know, I’m here to rob you, or whatever,
      you know? And she just kind of looked at me at first, kind of like
      dumbfounded, you know? And then I pulled the bag out of my
      sleeve, and she is like, you know, she is like really scared, like - -
      not like shaking, trembling, but kind of trembling, you know, that
      really nervous feeling and - -
      Q. She appeared scared to you?
      A. Yes. * * * And so I said, okay, is there - - basically is there
      more money, some more money, and she said the lady’s name’s
      drawer. And I said okay, you know, give that to me too. And so -
      -
      Q. Is she still shaking a little bit?
      A. Yeah. She - -
      Q. Trembling?

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       A.    She’s scared to death. She was really scared.

(Tr. 264-265). However, Bursey’s testimony as far as the planning of the robbery,

revealed the following:

       Q. (Prosecuting Attorney)        * * * What about the Celina one,
       was that your idea to rob a bank?
       A. (Bursey)         No. I mean - -
       Q. Whose idea was it?
       A. It was me and Casey’s, and like, you know, I didn’t have any
       money, I didn’t have nowhere to go, and Casey is like, hey, you
       know, I’ll help you out, we can rob another bank, and I’ll get you
       set up.
       Q. And did you owe Casey money?
       A. I mean, he was investing a lot of money. He had given me
       some drugs and rented a car and all that, and had mentioned a
       few times that, you know, he’s invested all his money in this.
       Q. And so did you feel like you had to?
       A. Pretty much.

(Tr. 275-276).

       {¶22} And, when questioned further, Bursey testified:

       Q. (Prosecuting Attorney)       I don’t want to speculate about
       banks you didn’t rob. The Celina bank, whose idea?
       A. Casey Atkins.
       Q. Who’s in charge?
       A. Casey Atkins.
       Q. What did he invest in ahead of time?
       A. The driver, the car and - - pretty much all the money and the
       driver and drugs.

(Tr. 318).

       {¶23} Additionally, Atkins’ presence in Celina at the time of the robbery was

also established through Detective Waltmire’s testimony. Detective Waltmire’s


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testimony revealed that in the course of his investigation of this case, he viewed the

surveillance videos from Second National Bank, Burger King and the Sunoco gas

station. In reviewing these videos, and with the help of other witnesses, he was able

to identify Atkins, Rios and Bursey at the above locations at, or near, the time the

bank was robbed.

       {¶24} The trial court, in its judgment entry, found that “Bursey, in

committing a theft offense upon Second National Bank, threatened the immediate

use of force against Allison Byron in her capacity as teller of the bank and did

knowingly obtain $6,692 in cash from the bank with purpose to deprive the bank of

that money without the bank’s consent or without the consent of any person

authorized to give consent, that sum being more than $1,000, but less than $7,500”.

(Doc. 92). The trial court further found, beyond a reasonable doubt, that Atkins was

also guilty in the Robbery and Theft stating “because with the same knowledge and

purpose displayed by Mr. Bursey and acknowledged by him in his testimony, Mr.

Atkins solicited, procured, or caused Mr. Bursey; conspired with him, and aided and

abetted him to commit these offenses”. (Id.).

       {¶25} Based upon our review of the record, we find that Atkins was

intricately involved with a conspiracy to rob the Second National Bank in Celina

with Bursey and Rios. Atkins provided a vehicle to Bursey and helped develop the

plan to rob the bank. Thus, the sole issue remaining is to determine whether


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sufficient evidence exists in the record as to whether Bursey’s conduct while in the

bank supports the trial court’s finding that a robbery occurred.

       {¶26} We find that the State’s evidence was sufficient for the trial court to

find that Bursey’s conduct while in the bank satisfied the element of “force” (beyond

a reasonable doubt). Even though Bursey did not brandish a weapon, such is not

required to prove the element of “force”. As we noted above, “force” means “any

compulsion” by “any means”. Stevens, Id. And “compulsion” occurs “under the

heads of obedience to orders”. Id. Thus, we find Bursey’s statement to the bank

teller (Byron) of “this is a robbery, put the money in the bag”, under the

circumstances of this case, meets the definition of “force”. Moreover, we find that

Bursey’s statement was a command (to Byron) that she obeyed because she was

afraid. As proven through Bursey’s testimony, Byron was “scared to death” as a

result of his demand for money. As such, competent and credible evidence exists

in the record justifying that the element of “force” was proven by the State beyond

a reasonable doubt.

       {¶27} “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.” State v. Schaeffer, 3d

Dist. Seneca No. 13-14-34, 2015-Ohio-3531, ¶15, citing Thompkins. In reviewing

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


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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 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. Holmes, 3d Dist. Hancock No. 5-15-

06, 2015-Ohio-5050, ¶46, quoting Thompkins at 387.

       {¶28} In the case sub judice, we cannot say that the trier of fact lost its way

or committed a manifest injustice in making its determination of Atkins’ guilt. At

trial, both Rios and Bursey testified of planning the robbery (with Atkins) (Tr. 179,

250-257, 263), that Atkins was the “mastermind” behind the robbery (Tr. 179, 190,

195, 250) and that Atkins rented them a car to use in the robbery. (Tr. 251). The

State also produced the videotape surveillance recordings that placed Atkins with

Rios and Bursey in Celina just moments before the robbery. Lastly, the State

produced evidence as to the bank teller’s state of mind during the robbery, as being

“scared to death” (Tr. 265) establishing that Bursey used force while committing

his theft offense at the bank in Celina. Therefore, we cannot say that Atkins’

robbery conviction was against the manifest weight of the evidence.

       {¶29} Atkins’ sole assignment of error is overruled.




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       {¶30} Having found no error prejudicial to the appellant herein in the

particular assignment of error, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur in Judgment Only.

/jlr




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