[Cite as State v. Webb , 2021-Ohio-3323.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 20CA64 : JAMES D. WEBB JR. : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2018CR1070

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: September 21, 2021

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP R. JOSHUA BROWN RICHLAND CO. PROSECUTOR 32 Lutz Ave. VICTORIA MUNSON Le xington , OH 44904 38 South Park St., #2 Mansfield, OH 44902Richland County, Case No. 20CA64 2

Delaney, J. {¶1} Appellant James D. Webb Jr. appeals from the October 24, 2 019 Sentencing Entry of the Richland County Court of Common Pleas. Appellee is the state

of Ohio.

FACTS AND PROC EDURAL HISTORY {¶2} This case arose on September 26, 2018, when appellant robb ed W.N. after W.N. bought pills in appellant’s sister’s apartment. The follo wing evidence is adduced from the record of appellant’s jury trial. W.N. is robbed after buying pills {¶3} W.N. is an admitted oxycodone addict. As of September 2018 , he was taking pills “at high levels” and often bought pills at the apa rtment of a woman named Bercha who lived in Apartment 4 in a complex on Kentucky Avenue . Bercha is now deceased. Customarily, “Detroit boys” would bring large amounts of pills to Bercha’s apartment and “set up” in her back bedroom. Buyers would come t o the apartment at all hours to buy pills, often more than once a day. {¶4} On September 26, 2018, W.N. went to Bercha’s apartment sev eral times. The first time was in the early afternoon, and in the apartment W.N. found Bercha, an unknown man in the kitchen, and the “Detroit boys” in the back bedroom. W.N. later learned the man in the kitchen was appellant, Bercha’s brother. As W.N. transacted the purchase of a “large amount” of pills, a neighbor, Jane Doe, ca me to the door of the apartment. Doe didn’t have a place to park and asked if someon e could move their car. W.N. agreed to do so. He finished his transaction, left the apa rtment, and drove off in his

car.Richland County, Case No. 20CA64 3

{¶5} Jane Doe was a witness for appellee at trial. She arrived home to the apartment complex shortly after 3:00 pm and no parking spots we re available. When she asked the occupants of Apartment 4 to move a car, W.N. and appe llant exited the apartment. Doe didn’t know W.N.’s name but described him as “th e bigger guy.” Doe knew appellant to be Bercha’s brother. {¶6} W.N. returned after dark to buy more pills. Again, he park ed in the small lot and walked down the sidewalk in the direction of Apartment 4. H e noticed a man standing against the door, the same man he saw in Bercha’s kitchen earli er that day. The man asked, “Are you coming here?” and W.N. said yes. The man then “ wielded a large knife,” according to W.N.’s testimony, and said, “Give me everything yo u got. I know why you’re

here.” {¶7} The man—appellant—poked at W.N.’s stomach with the knife, and W.N. kept moving back from him. W.N. tripped and fell as he attempte d to get away. He got up again to run. He dug in his pockets and realized his hand w as bleeding profusely. W.N. ran to his car, but realized he didn’t have his keys. He w ent back toward the grassy area near the apartments to look for his keys, and noticed a ne ighbor, Jane Doe, standing at her door. W.N. asked Doe if she could help him find his keys and told her he was bleeding and needed help. Doe appeared to be holding a phone in her hand and went back inside her apartment. {¶8} Then appellant “came back out of the darkness,” according to W.N., and said, “Didn’t I tell you to get out of here?” W.N. took off run ning down Ashland Road, toward downtown Mansfield. He approached a Marco’s Pizza and sa w a man and woman in the parking lot. He asked if they could give him a ride and they agreed. The coupleRichland County, Case No. 20CA64 4

insisted that W.N. needed to go to the hospital because he was bleeding profusely, but he wanted to go home to see his wife first. The couple dropped him off at a friend’s house who immediately took W.N. home and his wife brought him to the hospital. {¶9} Police met W.N. at the hospital and he described what happ ened. He had severe cuts to his hand and a stab wound in his back, near his spine. {¶10} In the meantime , Jane D oe had witnessed most of the incid ent between appellant and W.N. She was sitting on a couch near a window whe n she saw appellant walking on the sidewalk outside the apartments, along with the man she saw earlier— W.N. She didn’t know W.N.’s name but recognized him from the ea rlier encounter at Bercha’s apartment. Doe heard appellant say words to the effect of “Give me that” and the other man said “No.” Doe looked out the window and saw appe llant with a large knife in his hand. Doe remained inside her apartment, terrified, and heard appellant stop outside her door before he kept walking in the direction of Ber cha’s apartment. Doe later saw appellant running behind the building. {¶11} Doe opened her apartment door and W.N. came up the sidewa lk covered in blood, stating the he couldn’t find his keys. Doe said nothi ng and slammed her apartment door shut. She called 911 and a recording of her call was played during her testimony. Doe spoke very quietly because she was afraid appell ant might still be close by. She described two people “fighting around,” and explained s he meant appellant tried to take something from W.N., then everything went quiet. At tri al, Doe identified appellant

as the man with the knife. {¶12} Deputies from the Richland County Sheriff’s Department we re dispatched to the apartment building and upon arrival found a trail of blo od near the sidewalk.Richland County, Case No. 20CA64 5

Following the blood trail to Marco’s Pizza, one deputy learned that the stabbing victim obtained a ride from a couple picking up a pizza. The deputy ob tained their contact information and spoke to the couple about the man they gave a r ide to. He observed a bloodstain and a blood-soaked blanket in the couple’s car. Depu ties spoke to W.N. at the hospital and to Jane Doe at the apartment building. They learne d the suspect in the stabbing was appellant, Bercha’s brother. They knocked on Berch a’s door that night, but

no one answered. {¶13} Deputies collected evidence from the scene that night and the next day in daylight. They found a bloodstained Avia athletic shoe and pac kaging and a sheath for a Good Cook brand knife. They found the knife itself stuck into the ground approximately 10 feet from Bercha’s apartment, with the handle sticking out o f the ground. The evidence was photographed, collected, and submitted to BCI for DNA analy sis. A forensic scientist testified that DNA on the knife handle matched appellant’s prof ile, and the bloodstain on the outside of the Avia shoe matched W.N.’s profile. DNA from t he collar of the shoe matched appellant. Deputies showed W.N. a photo lineup and he i dentified appellant as the person who stabbed him. {¶14} Appellant was eventually arrested on September 29, 2018, and investigators obtained a taped statement from him at the Richla nd County Jail. Appellant told them W.N. came to his sister’s apartment to buy pills from “the Detroit boys.” He admitted he was wearing Avia athletic shoes on the night of the incident. He admitted stealing the knife from Kroger. Appellant also told deputies he smoked crack cocaine on the day of the stabbing and that he gets violent when he doesn’ t take his medicine. He denied attacking W.N.Richland County, Case No. 20CA64 6

{¶15} A loss-prevention officer from Kroger testified that appe llant stole a large

knife from the Mansfield store and identified the stolen knife as the knife found by deputies stuck in the ground. During her testimony, appellee presented a video of appellant stealing the knife. Appellant’s testimony {¶16} Appellant was the only defense witness at trial. He readi ly admitted he is a convicted felon and crack cocaine addict. Appellant testified t he “Detroit boys” frequently “set up” at Bercha’s apartment to sell drugs, and she was scare d and wanted it to stop. Appellant therefore went to the apartment in an attempt to prot ect his sister. He admitted he stole the knife from Kroger and concealed it in a flower bed outside the apartment “for protection.” {¶17} On the day in question, appellant had been out with frien ds and returned to the apartment building after dark. He observed a man hunched ov er in the grass, looking for something. Appellant helped the man find his hat, keys, cel l phone, and wallet. Appellant testified the man said, “I’m leaking,” which appellan t understood to mean he was bleeding. Appellant entered Bercha’s apartment intending to call an ambulance, but when he came back outside, the man was gone. {¶18} Appellant denied stabbing W.N. He admitted he and Bercha didn’t open the door when deputies knocked, but said it was because “the De troit boys” were around. Upon cross-examination, appellant acknowledged W.N. came to the apartment earlier that day and then returned to “re-up,” or get more pills. Appel lant acknowledged he knew W.N. would therefore have money in his pockets. Appellant denie d that the bloodstained Avia shoe was his despite the discovery of his DNA on the colla r of the shoe.Richland County, Case No. 20CA64 7

Indictment, trial, conviction, and sentence {¶19} Appellant was charged by indictment with one count of agg ravated robbery pursuant to R.C. 2911.01(A)(1), a felony of the first degree [C ount I] and one count of aggravated robbery pur suant to R.C. 2911.01(A)(3), also a felon y of the first degree [Count II]. Appellant entered pleas of not guilty and the matte r proceeded to trial by jury. Appellant was found guilty as charged and sentenced to a prison term of 11 years upon

Count I. The trial court found t hat Count II mer ged with Count I. {¶20} Appellant now appeals from the judgment entry of his conv iction and

sentence. {¶21} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR {¶22} “THE VERDICTS FOR AGGRAVATED ROBBERY WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

ANALYSIS {¶23} In his sole assignment of error, appellant argues his con victions upon two counts of aggravated robbery are against the manifest weight of the evidence. We disagree. {¶24} In determining whether a conviction is against the manife st weight of the evidence, the court of appeals functions as the “thirteenth jur or,” and after “reviewing the entire record, weighs the evidence and all reasonable inference s, considers the credibility of witnesses and determines whether in resolving conflicts in t he evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.Richland County, Case No. 20CA64 8

Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case i n which the evidence weighs heavily against the conviction.” Id. {¶25} Appellant was found guilty upon one count each of aggrava ted robbery pursuant to R.C. 2911.01(A)(1) and (3). Those sections state: 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 f ollowing: (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 ; * * * *. (3) Inflict, or attempt to inflict, serious physical harm on

another. {¶26} Appellant argues his aggravated-robbery convictions are a gainst the manifest weight of the evidence because appellee’s witnesses fa iled to identify him as the perpetrator and there is no evidence of a theft offense. Up on our review of the record, we disagree. {¶27} Appellant asserts W.N. was unable to identify appellant a s the man who stabbed him until he was “prompted” by the prosecutor. First, w e note W.N. unequivocally identified appellant during his testimony as the man he first s aw in the kitchen of Bercha’s apartment and who approached him upon his later return to the a partment. T. 196, 208,

212. W.N. also i dentified appell ant in a photo lineup during th e investigation. T. 319-320.Richland County, Case No. 20CA64 9

Moreover, we disagree with appellant’s erroneous characterizati on of W.N.’s testimony and the alleged “prompting” by the prosecutor which appellant c ites at page 4 of his brief. The cited testimony, in context, is below:

* * * *. [PROSECUTOR]: Is [appellant] the person that was outside that Apartment 4 that night that confronted you with the knife and then ultimately stabbed you? Do you see him in court today? [W.N.]: He appears a little different, but yes, I do. [PROSECUTOR]: And can you indicate where he is seated and what he is wearing? [W.N.]: He is wearing a blue-and-white striped shirt with a tie , gray hair, and glasses. [PROSECUTOR]: You say he looks a little different. Do you

mean he seems to be in deteriorated health? [W.N.]: Uhm, he seems to be a little lighter and actually looks a little more healthy. [PROSECUTOR]: But he is in fact the person who demanded money and then ultimately stabbed you that night? [W.N.]: Yes, he is. [PROSECUTOR]: That’s all I have. THE COURT: The record will reflect the witness did identify

the defendant at this time.

* * * *.Richland County, Case No. 20CA64 10

T. 208. {¶28} Appellant also argues Jane Doe was unable to identify app ellant as the person who stabbed W.N. While it is true Jane Doe did not obser ve the actual stabbing, she observed appellant with the knife and with W.N. on the side walk. She heard appellant demand something from W.N. and W.N. refused. T. 224-2 28, 236. She identified appellant at trial as the man she saw with the knife . T. 238. {¶29} Appellant cites State v. Anderson , 191 Ohio App.3d 110, 2010-Ohio-6234, 944 N.E.2d 1224 (1st Dist.), for the proposition that a convict ion was reversed as against the manifest weight of the evidence after a witness had to be r ecalled to identify the defendant. Upon our review of the case, the appellate court re versed and remanded for a new trial because the trial court abused its discretion in pe rmitting the witness to be recalled to identify the defendant. Id., ¶ 19. The appellate court explicitly did not reach the issue of manifest weight of the evidence because of its res olution of the witnesstestimony issue. Id., ¶ 21. Anderson’s conclusion that the trial court abused its discretion is premised upon unique facts that bear no resemblance to the i nstant case. Nor does

Anderson involve a manifest-weight claim resting upon identification of the defendant. {¶30} The jury was free to accept or reject the testimony of W. N. and Jane Doe, just as the jury was free to reject appellant’s self-serving te stimony. Ultimately, the weight of the evidence and the credibility of the witnesses are determ ined by the trier of fact. State v. Yarbrough , 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. In the instant case, W.N. and Doe un equivocally iden tified appella nt as the man with a knife

who stabbed W.N.Richland County, Case No. 20CA64 11

{¶31} Appellant further argues his conviction is against the ma nifest weight of the

evidence because there is no evidence a theft occurred. We disa gree. The jury was instructed that a “theft offense” is to knowingly obtain or exe rt control over property owned by another, without the person’s consent or by threat or by int imidation, and with the purpose to deprive another of his or her property. T. 382. The jury was also instructed that a “criminal attempt” occurs when one purposely does anythi ng that is an act constituting a substantial step in a course of conduct planned to culminate in his

commission of the offense. T. 382. {¶32} Appellee could thus establish aggravated robbery premised upon an attempted theft offense. R.C. 2911.01(A)(1) and (3), the aggrav ated robbery, require appellee to prove appellant “attempt[ed] or commit[ed]” a theft offense. The jury could reasonably find appellant attempted to commit a theft offense b ased upon W.N.’s testimony that appellant said “Give me everything you got” whil e brandishing the knife, and from Doe’s testimony that appellant said words to the effec t of “give me that.” {¶33} We cannot find the jury cle arly lost its way and created a manifest miscarriage of justice in convicting appellant of two counts of aggravated robbery. Appellant's convictions are not against the manifest weight of the evidence and the sole assignment of error is therefore overruled.Richland County, Case No. 20CA64 12

CONCLUSION {¶34} Appellant’s sole assignment of error is overruled and the judgment of the Richland County Court of Common Pleas is affirmed. By: Delaney, J., Wise, John, P.J. and Wise, Earle, J., concur.