[Cite as State v. Jordan, 2014-Ohio-3208.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 14AP-01 

v. : (C.P.C. No. 13CR-3386)

Jason R. Jordan, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on July 22, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for 

appellee. 

Todd W. Barstow, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Defendant-appellant, Jason R. Jordan, appeals from a judgment of the 

Franklin County Court of Common Pleas, finding him guilty, pursuant to jury verdict, of 

two counts of robbery, both in violation of R.C. 2911.02. Because (1) both sufficient 

evidence and the manifest weight of the evidence support defendant's convictions, and (2) 

the court did not violate defendant's Crim.R. 43(A) right to be present, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On June 25, 2013, the state indicted defendant on one count of robbery, a 

felony of the second degree, and one count of robbery, a felony of the third degree. The 

events giving rise to the indictment occurred on June 10, 2013. 
No. 14AP-1 2 

{¶ 3} On June 10, 2013, Zachary West was working as a mail carrier for the 

United States Postal Service. He wore his mail carrier's uniform and carried his mail bag 

on his shoulder. At around noon that day, West was delivering mail to homes and 

businesses located around the 2600 block of North High Street, in the Clintonville area of 

Columbus, Ohio. West was walking on foot delivering mail and had almost completed his 

route. Before returning to his vehicle, he had to "go down a back alley towards another 

back alley to do a business drop in their back of the business." (Tr. 73.) It was a rainy day 

and there were few people outdoors. 

{¶ 4} As West turned the corner to go from one alley to the next, defendant 

confronted him. West stated that defendant initially was four or five feet away from him, 

but that defendant then approached West, coming close enough to West that the men 

were "face to face." (Tr. 75.) Defendant reached for West's mail bag, "grabbed the bag, and 

said, 'Give me the bag.' " (Tr. 75.) West told defendant " 'No,' " and defendant then struck 

West in the face and ran off. (Tr. 75.) 

{¶ 5} After the altercation, West went back to his vehicle and called his manager 

to report the incident. West's manager said that he would call the police, and told West 

that the police would meet West at his vehicle. When the police arrived, West spoke to 

Detective Kim Atwood of the Columbus Police Department. Detective Atwood noted that 

when she encountered West he had "a small laceration below his right eye" and his "cheek 

was a little puffy," injuries which West attributed to defendant striking him. (Tr. 39.) West 

provided Detective Atwood with a description of the individual who struck him. West 

described the suspect as a short, black male, in his mid to late thirties, with an unruly Afro 

and a long goatee. Detective Atwood placed West's description of the suspect into her 

report, and provided the description to other uniformed officers in the area. 

{¶ 6} When Officer Daniel Brown began his shift later that day, he saw Detective 

Atwood's description of the robbery suspect. Officer Brown explained that defendant 

came to his mind as a potential suspect, as Officer Brown had come into contact with 

defendant on other occasions, and knew that defendant's features matched Detective 

Atwood's description of the suspect. Accordingly, the police compiled a photo array which 

included defendant's photograph, and a blind administrator who was unfamiliar with the 

case presented the photo array to West the following day. The blind administrator told 
No. 14AP-1 3 

West that if he saw the person who had assaulted him in the photo array to circle that 

person's photo, but emphasized that West "did not have to circle anybody" if he was 

uncertain. (Tr. 87.) West selected defendant's photo from the array. West testified at trial 

that, as a result of this incident, he resigned from the post office because he "felt [he] was 

unsafe" at his job. (Tr. 91.) 

{¶ 7} The jury heard the above noted evidence, and found defendant guilty on 

both counts of robbery charged in the indictment. At the sentencing hearing, the court 

determined that the third degree felony robbery count merged into the second degree 

felony robbery count, and sentenced defendant to a four-year term of imprisonment on 

the second degree felony robbery conviction. 

II. ASSIGNMENTS OF ERROR 

{¶ 8} Defendant appeals, assigning the following errors: 

I. THE TRIAL COURT ERRED AND DEPRIVED 

APPELLANT OF DUE PROCESS OF LAW AS 

GUARANTEED BY THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ARTICLE 

ONE SECTION TEN OF THE OHIO CONSTITUTION BY 

FINDING HIM GUILTY OF ROBBERY AS THAT VERDICT 

WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND 

WAS ALSO AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

II. APPELLANT WAS DENIED OF HIS RIGHT TO BE 

PRESENT AND THE PRESENCE AND ASSISTANCE OF 

HIS COUNSEL DURING A CRITICAL STAGE OF HIS JURY 

TRIAL, AND HIS RIGHT TO DUE PROCESS AND A 

FUNDAMENTALLY FAIR JURY TRIAL AS REQUIRED BY 

THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND ARTICLE 

ONE SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIO 

CONSTITUTION AND OHIO RULE OF CRIMINAL 

PROCEDURES 43(A). 

III. FIRST ASSIGNMENT OF ERROR – SUFFICIENCY AND MANIFEST 

WEIGHT 

{¶ 9} Defendant's first assignment of error asserts that neither sufficient evidence 

nor the manifest weight of the evidence support his convictions. 
No. 14AP-1 4 

{¶ 10} Whether evidence is legally sufficient to sustain a verdict is a question of 

law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. 

Id. The evidence is construed in the light most favorable to the prosecution to determine 

whether a rational trier of fact could have found the essential elements of the offense 

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph 

two of the syllabus; State v. Conley, 10th Dist. No. 93AP-387 (Dec. 16, 1993). When 

reviewing the sufficiency of the evidence the court does not weigh the credibility of the 

witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79. 

{¶ 11} Sufficiency of the evidence and manifest weight of the evidence are distinct 

concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When 

presented with a manifest weight argument, we engage in a limited weighing of evidence 

to determine whether sufficient competent, credible evidence permits reasonable minds 

to find guilt beyond a reasonable doubt. Conley; Thompkins at 387 (noting that "[w]hen a 

court of appeals reverses a judgment of a trial court on the basis that the verdict is against 

the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees 

with the factfinder's resolution of the conflicting testimony"). In the manifest weight 

analysis the appellate court considers the credibility of the witnesses and determines 

whether the jury "clearly lost its way and created such a manifest miscarriage of justice 

that the conviction must be reversed and a new trial ordered." Id., quoting State v. 

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Determinations of credibility and weight 

of the testimony remain within the province of the trier of fact. State v. DeHass, 10 Ohio 

St.2d 230 (1967), paragraph one of the syllabus. The jury may take note of any 

inconsistencies and resolve them accordingly, "believ[ing] all, part or none of a witness's 

testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. 

Antill, 176 Ohio St. 61, 67 (1964). 

{¶ 12} Defendant was convicted of two counts of robbery, both in violation of R.C. 

2911.02. R.C. 2911.02(A)(2) and (3) provides, in relevant part, that "[n]o person, in 

attempting or committing a theft offense or in fleeing immediately after the attempt or 

offense, shall do any of the following: * * * [i]nflict, attempt to inflict, or threaten to inflict 

physical harm on another," or "[u]se or threaten the immediate use of force against 

another." 
No. 14AP-1 5 

{¶ 13} The evidence presented at trial established that, as West was delivering 

mail, he turned a corner and was "face to face" with defendant. (Tr. 75.) Defendant 

grabbed West's mail bag and said " 'Give me the bag.' " (Tr. 75.) West said that defendant 

pulled on the bag and tried to take the bag off of West's person. When defendant tried to 

take West's mail bag, West said " 'No,' " and defendant then "struck [West] in the face and 

took off." (Tr. 75.) West stated that defendant hit him with a closed fist, causing a "bruise 

and swelling on [West's] right cheek." (Tr. 79.) Photos taken immediately after the 

incident showed an abrasion just below West's right eye and swelling on his cheek. This 

evidence was sufficient to establish that defendant, in attempting to deprive West of his 

mail bag, used force against West and inflicted physical harm on West. Accordingly, 

sufficient evidence supported defendant's robbery convictions. 

{¶ 14} Defendant notes in his brief that West described the encounter as being 

quite brief, that it was raining when the incident occurred, and that the robbery occurred 

in an alley. Defendant asserts that "[t]hose factors cast doubt on West's identification and 

render it not worthy of belief." (Appellant's brief, 2-3.) 

{¶ 15} Although West testified that the entire encounter with defendant lasted 

approximately two seconds, he also stated that he had ample opportunity to look at 

defendant's face and stature. West stated that he completely saw defendant's face, noting 

that defendant was not wearing anything to conceal his face. West stated that he was 

"[e]ye to eye" with defendant. (Tr. 79.) West also indicated that, despite the rain, the light 

was not bad that day. When the blind administrator showed West a photo array 

containing defendant's photo, West stated that he was able to select defendant "[b]ased 

on the facial features" and "because of the triangular face and the eyes and nose." (Tr. 87.) 

Accordingly, there was ample evidence in the record to support the jury's determination 

that defendant was the individual who attempted to deprive West of his mail bag and 

struck West in the face on June 10, 2013. 

{¶ 16} Moreover, although under a manifest weight of the evidence analysis we are 

able to consider the credibility of the witnesses, "in conducting our review, we are guided 

by the presumption that the jury, * * * is best able to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in weighing the 

credibility of the proffered testimony." State v. Tatum, 10th Dist. No. 10AP-626, 2011-
No. 14AP-1 6 

Ohio-907, ¶ 5, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The 

jury was in the best position to judge West's credibility, and the jury found West to be a 

credible witness, as they were entitled to do. Engaging in the limited weighing of the 

evidence which we are permitted, we cannot say the jury clearly lost its way when it found 

defendant guilty of robbery beyond a reasonable doubt. The manifest weight of the 

evidence supports defendant's convictions. 

{¶ 17} Based on the foregoing, defendant's first assignment of error is overruled. 

IV. SECOND ASSIGNMENT OF ERROR – RIGHT TO BE PRESENT 

{¶ 18} Defendant's second assignment of error asserts that the trial court 

committed reversible error when it denied defendant his right to be present at a critical 

stage of the proceedings. 

{¶ 19} A defendant has a fundamental right to be present at all critical stages of his 

criminal trial. State v. Hill, 73 Ohio St.3d 433, 444 (1995), citing Crim.R. 43(A) and the 

Ohio Constitution, Article I, Section 10. The United States Supreme Court has stated that 

an accused is guaranteed the right to be present at all stages of a criminal proceeding that 

is critical to its outcome when his or her absence may frustrate the fairness of the 

proceedings. Kentucky v. Stincer, 482 U.S. 730, 745 (1987). This right is embodied in 

Crim.R. 43(A). Crim.R. 43(A) provides that, "the defendant must be physically present at 

every stage of the criminal proceeding and trial, including the impaneling of the jury, the 

return of the verdict, and the imposition of sentence, except as otherwise provided by 

these rules." 

{¶ 20} Defendant asserts that his Crim.R. 43(A) right to be present was violated 

when he was not present during the discussion between the court and counsel regarding 

the answers the court should provide to the jury's questions. The jury sent three questions 

out to the court during their deliberations, and defendant's counsel, the prosecutor, and 

the court discussed the questions and amicably determined how the court should answer 

the questions. Indeed, defendant notes that "[c]ounsel and the trial court conferred and 

agreed on answers to each question without objection from either side." (Appellant's brief, 

4.) 

{¶ 21} Defendant asserts that he was not present during the discussion between 

the court and counsel regarding the jury's questions. Initially, we note that there is 
No. 14AP-1 7 

nothing in the record to indicate either that defendant was or was not present during 

these discussions. The court reporter noted that the discussion of the jury's questions 

occurred in open court, out of the presence and hearing of the jury, but did not note 

whether defendant was present. However, we discern nothing from the court reporter's 

omission, as the court reporter did not note defendant's presence at any point in the trial. 

{¶ 22} Regardless, even if we were to assume that defendant was absent from the 

discussion regarding the jury's questions, we would not find that defendant's absence 

amounted to reversible error. The Supreme Court of Ohio has already addressed the issue 

of whether a defendant must be present for the discussion between counsel and the court 

regarding the answer to a jury's question. In State v. Campbell, 90 Ohio St.3d 320 

(2000), the court found no error where a capital murder defendant was absent from an 

in-chambers discussion between the court and counsel regarding the trial court's response 

to a jury question. The Supreme Court of Ohio held as follows: 

Campbell had no right to be present at the legal discussion of 

how the question should be answered. Nor did he have a 

right to be present when the judge sent the note to the jury 

room. Although the oral delivery of jury instructions in open 

court is a critical stage of trial, the trial court here did not 

instruct the jury in open court; instead, he sent a note. A 

defendant benefits from his presence, and may be harmed by 

his absence, when instructions are given in open court. But 

these potential benefits and harms do not exist when the 

judge merely sends a note to the jury room. We therefore 

hold that the sending of the note was not a critical stage of 

the trial. 

(Citations omitted.) Id. at 346. See also State v. Ferguson, 8th Dist. No. 86439, 2006-

Ohio-799, ¶ 56 (noting that "the discussion regarding the jury question was not a critical 

stage of the trial"). 

{¶ 23} Defendant asserts that State v. Shenoda, 10th Dist. No. 01AP-1409, 2002-

Ohio-4296, supports his contention that he had a right to be present when counsel and 

the court discussed the answers to the jury questions. In Shenoda, the jury presented 

several written questions to the trial court during their deliberations. In response, the trial 

judge "entered the jury room with the court reporter," but without either counsel or 

defendant, "and provided the jury with an oral summary of the testimony of * * * a 
No. 14AP-1 8 

witness for the state, and reinstructed the jury as to its duty to consider each count 

separately." Id. at ¶ 16. This court noted that "where a trial court provides the jury with 

further instructions or other substantive information out of the presence of the 

defendant, prejudice is presumed and a new trial must be ordered." Id. at ¶ 18. Shenoda 

is inapplicable to the instant case, as the trial judge herein did not speak directly to the 

jury. Rather, the record demonstrates that after counsel and the court determined the 

appropriate answers to the jury's questions, the court's bailiff wrote the answers down, 

and delivered the written answers to the jury. Pursuant to Campbell, the discussion 

between the court and counsel regarding the answers to the jury's questions, and the 

sending of the written answers back to the jury room, were not critical stages of the 

proceedings to which defendant was entitled to be present. 

{¶ 24} Based on the foregoing, defendant's second assignment of error is 

overruled. 

V. DISPOSITION 

{¶ 25} Having overruled defendant's first and second assignments of error, we 

affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

TYACK and BROWN, JJ., concur. 

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