[Cite as State v. Dzelajlija, 2013-Ohio-4589.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 95851 

 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JAMES DZELAJLIJA

DEFENDANT-APPELLANT 

JUDGMENT:

CONVICTIONS AFFIRMED; REMANDED

FOR RESENTECING

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-478630 

BEFORE: Kilbane, J., Boyle, P.J., and Rocco, J. 

RELEASED AND JOURNALIZED: October 17, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Chief Public Defender 

Cullen Sweeney 

John T. Martin 

Assistant Public Defenders 

310 Lakeside Avenue - Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

T. Allan Regas 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

{¶1} This cause is before this court on remand from the Ohio Supreme Court in 

State v. Dzelajlija, Slip Opinion No. 2012-0651, 2013-Ohio-3724, for further review of 

our decision released March 8, 2012,1

 on reconsideration. The Ohio Supreme Court, 

having reversed our judgment in this case, has remanded it to us with instructions to 

determine whether James Dzelajlija’s convictions for two counts of robbery are against 

the manifest weight of the evidence. For the reasons set forth below, we conclude that 

the convictions are not against the manifest weight of the evidence. Accordingly, we 

affirm Dzelajlija’s convictions and remand to the trial court for resentencing. 

{¶2} These protracted proceedings stem from the September 30, 2005 robbery of 

a furniture store employee who was making a night deposit. On March 23, 2006, 

defendant, the boyfriend of a store employee, was indicted on two counts of robbery and 

receiving stolen property. A jury trial began on August 31, 2006, and the defendant was 

convicted of the robbery charges. He was sentenced to concurrent seven-year terms of 

imprisonment, plus five years of postrelease control. On appeal, this court determined 

that the trial court admitted inadmissible and prejudicial opinion evidence as to a 

witness’s truthfulness and the case was reversed and remanded for a new trial. State v. 

Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050 (“Dzelajlija I”). 

{¶3} A retrial began on February 12, 2008. The defendant was convicted of 

both robbery charges. He was again sentenced to a seven-year term of imprisonment and 
a concurrent five-year term of imprisonment, plus three years of postrelease control, to be 

served consecutively to an unrelated conviction in Case No. CR-475938. On appeal, the 

defendant asserted that the indictments were defective under State v. Colon, 118 Ohio 

St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (“Colon I”) and State v. Colon, 119 Ohio 

St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (“Colon II”), and that his convictions were 

against the manifest weight of the evidence. This court concluded that the indictments 

were defective under Colon I and Colon II for failing to charge the defendant with the 

requisite mens rea of recklessness. Therefore, this court again reversed defendant’s 

convictions and remanded the matter for a new trial. In light of that conclusion, this 

court held that the defendant’s challenge to the weight of the evidence supporting his 

convictions was moot. State v. Dzelajlija, 8th Dist. Cuyahoga No. 91115, 

2009-Ohio-1072 (“Dzelajlija II”). 

{¶4} On May 20, 2009, the matter was returned to the docket of the trial judge. 

On August 27, 2010, however, the Ohio Supreme Court overruled Colon I and Colon II, 

and held that where an indictment charges an offense by tracking the language of the 

criminal statute, it is not defective for failure to identify a culpable mental state when the 

statute itself fails to specify a mental state. State v. Horner, 126 Ohio St.3d 466, 

2010-Ohio-3830, 935 N.E.2d 26. 

{¶5} On September 14, 2010, the trial court held a hearing in this matter to 

determine the effect of the Horner decision. The trial court concluded that the Horner

 1State v. Dzelajlija, 8th Dist. Cuyahoga No. 95851, 2013-Ohio-913.
decision constituted extraordinary circumstances that justified the reimposition of the 

sentence that had been imposed on February 21, 2008, without holding another trial. On 

appeal, this court concluded that under Horner, the trial court properly concluded that the 

robbery charges herein are not defective, but that the sentence could not be reimposed in 

light of the earlier challenge to the manifest weight of the evidence that had earlier been 

declared moot and had never been resolved. State v. Dzelajlija, 8th Dist. Cuyahoga No. 

95851, 2011-Ohio-6445 (“Dzelajlija III”). 

{¶6} On March 8, 2012, this court granted the state’s motion for reconsideration 

and ruled that, even though Horner had overruled the Colon cases, the structural error 

analysis from Colon was still applicable to this case. State v. Dzelajlija, 8th Dist. 

Cuyahoga No. 95851, 2012-Ohio-913 (“Dzelajlija IV”). 

{¶7} On discretionary appeal to the Ohio Supreme Court, the matter was 

reversed and remanded to this court stating: 

Dzelajlija’s convictions were vacated in Dzelajlija II based on two cases 

from this court that we have repudiated. On remand, the trial court 

resentenced Dzelajlija. The sentence was improper because Dzelajlija’s 

manifest-weight argument had not yet been resolved. Accordingly, we 

remand this case to the court of appeals with instructions to consider this 

outstanding issue. 

{¶8} In determining whether a conviction is against the manifest weight of the 

evidence, the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s 

resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 

1997-Ohio-52, 678 N.E.2d 54, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 
72 L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the 

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

determine 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.’ ” Thompkins, 

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶9} The appellate court may not merely substitute its view for that of the jury, 

and reversal on manifest weight grounds is reserved for “the exceptional case in which 

the evidence weighs heavily against the conviction.” Thompkins, quoting Martin. 

{¶10} In this matter, William Bond (“Bond”), assistant manager of Elgin’s 

Furniture Store, testified that shortly after 9:00 p.m., on September 30, 2005, he drove to 

National City Bank, directly across the street from the furniture store, to make the night 

deposit of $1,570.10 in cash, and $1,874.12 in checks. As Bond parked next to the night 

deposit box and got out of his car, an assailant in a black and white ski cap approached 

from behind a nearby dumpster. The assailant repeatedly punched Bond in the face and 

head, forcing him to the ground behind his car. Bond threw the bag of deposits toward 

the assailant who then fled. 

{¶11} Bond immediately drove to the North Randall Police Department and gave a 

written statement regarding the robbery to Lieutenant Harry Rose (“Lieutenant Rose”). 

Bond sustained a large bruise to his right eye and a cut underneath his eye. He was 

treated by North Randall paramedics. Bond also testified that prior to the robbery, the 
defendant had been to the furniture store on two occasions to speak with cashier Jennifer 

Martin (“Martin”). 

{¶12} Martin testified that she had worked as a cashier at Elgin’s and was living 

with the defendant at the time of the robbery. The defendant visited her at work a 

couple of times per week as the store was closing for the evening. The defendant 

subsequently asked Martin where the store deposits were taken, and she told him that they 

were taken across the street to National City Bank. Shortly before the robbery, Martin 

came home from work and complained to the defendant that Bond had not helped her. 

The defendant then jokingly stated that he should rob Bond, and Martin replied that she 

did not think that was a good idea. 

{¶13} Martin further stated that on the day of the robbery, the defendant’s best 

friend, Bobby Jones (“Jones”), arrived at the store shortly before closing time and said 

something that caused her concern. When she arrived home later, the defendant and 

Jones were getting out of Jones’s truck. Martin inquired about whether the defendant 

had gone ahead with the robbery, and he stated that he did not because a police car was 

parked nearby. A few minutes later, however, the defendant threw an envelope at her 

that contained an Elgin’s bank deposit slip and $500 in cash. He reportedly told her that 

he had given the assistant manager a “shiner,” and told her not to say anything. They 

then used the cash to purchase two money orders to pay their rent. 

{¶14} When Martin arrived at work the next week, she saw that Bond had two 

black eyes. She did not report the matter to the police because she was in shock and 
fearful of losing her job. Several weeks later, however, the police questioned her. 

Martin gave police a six-page statement regarding the robbery and information 

concerning the defendant. Several weeks later, on December 5, 2005, Martin recorded a 

phone message that the defendant left on her cell phone. In this call, the defendant 

informed her that he was the man who had robbed the store manager, and that he had 

spoken with the police and explained to them that she was not involved in the offense. 

The defendant then apologized to Martin, told her that he loved her, and apologized if his 

actions caused her to lose her job. Martin also told the jury that she had been charged 

with receiving stolen property, and that she participated in a diversion program. She 

further stated that the case against her is now resolved. 

{¶15} During interviews with the North Randall Police Chief, Ronald Mosley, and 

Lieutenant Rose, the defendant at first denied knowing anything about the robbery. 

However, after learning that Martin may be indicted, he told the officers, “I did it, I 

robbed [Bond].” Bank surveillance photos depict an individual in the area shortly before 

Bond arrived at the bank. The police obtained no additional information regarding the 

identification or whereabouts of Jones. 

{¶16} From the foregoing, we cannot say that the jury lost its way in convicting the 

defendant of the offenses. The record establishes that the defendant had been in the 

store prior to the robbery, expressed an interest in the deposits, and spoke of robbing the 

manager. On the date of the robbery, he gave Martin money and a store receipt. He 

also left a message for Martin in which he inculpated himself and stated that Martin was 
uninvolved in the crime. The defendant did not present evidence. On this record, and 

weighing the evidence and all reasonable inferences, we are unable to conclude that the 

court clearly lost its way and created such a manifest miscarriage of justice in convicting 

the defendant of the robbery charges. 

{¶17} The convictions are not against the manifest weight of the evidence. 

{¶18} The judgment of the trial court is affirmed, and this case is remanded to the 

trial court for resentencing 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s convictions having 

been affirmed, any bail pending appeal is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 

MARY J. BOYLE, P.J., and 

KENNETH A. ROCCO, J., CONCUR