[Cite as State v. DeBorde,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2013-04-058 Plaintiff-Appellee, : OPINION : 3/3/2014 - vs - :

TOMMY DeBORDE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-10-1716

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Tommy DeBorde, appeals his conviction in the Butler

County Court of Common Pleas for one count of robbery. For the reasons detailed below,

we affirm appellant's conviction.

{¶ 2} On December 12, 2012, appellant was indicted on one count of robbery under

R.C. 2911.02(A)(1). The charge arose out of allegations that on October 14, 2012, appellant

stole approximately $34.00 in cash from a wallet and, in fleeing from the owner of the wallet Butler CA2013-04-058

and the owner's girlfriend, brandished a knife.

{¶ 3} A two-day jury trial was held beginning on January 7, 2013. At trial, the state

presented the eyewitness testimony of the victims, Michael Atwood and Brittany Smith.

Smith testified that on October 14, 2012, she and Atwood went to the Circle K convenience

store located in Butler County, Ohio to purchase a fountain drink. Smith stated that she

waited in the passenger side seat of Atwood's automobile while Atwood went inside the store.

{¶ 4} While waiting in the vehicle, Smith observed appellant approach the driver's

side of Atwood's vehicle and bend over to pick up an object on the ground. Smith testified

that she believed appellant had picked up a wallet and became concerned that the wallet

belonged to Atwood. Smith stated that she then went inside the store to locate Atwood,

where she confirmed that Atwood was indeed missing his wallet. Atwood and Smith

immediately exited the store and went to the rear of the building where they found appellant.

After inspecting the area, Smith testified that she located Atwood's wallet in some nearby

bushes with all of the money missing. Appellant denied taking Atwood's money and then fled

the scene.

{¶ 5} Following the initial encounter with appellant, Atwood and Smith stated that

they chased appellant a few blocks down the street where they caught up to him. According

to Atwood and Smith, appellant then held out a handful of money, brandished a knife and

stated "[t]his is my effing money." Atwood and Smith retreated from the scene and called

911. Appellant was later arrested and found in possession of $35.00. The knife was not

recovered.

{¶ 6} At the close of the state's evidence, the defense made a Crim.R. 29 motion for

acquittal, which the trial court denied. The defense then rested without calling any witnesses.

Following closing arguments, the jury found appellant guilty of robbery. Appellant was

subsequently sentenced to a five-year prison term. Appellant now appeals his conviction, -2- Butler CA2013-04-058

raising two assignments of error for review:

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT

APPELLANT OF ROBBERY, IN VIOLATION OF R.C. 2911.02(A)(1).

{¶ 9} Under his first assignment of error, appellant argues his conviction is based on

insufficient evidence. Specifically, appellant contends the state failed to offer sufficient

evidence that appellant (1) committed a theft offense, (2) possessed a deadly weapon, or (3)

possessed a deadly weapon while fleeing immediately after a theft offense within the

meaning of R.C. 2911.02.

{¶ 10} A determination as to whether the evidence presented at trial is legally sufficient

to sustain a verdict is a question of law. State v. Thompkins,

(1997).

"When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate

court examines the evidence to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt." State v.

Paul, 12th Dist. Fayette No. CA2011-10-026,

, ¶ 9. Accordingly, "[t]he

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. Dixon, 12th Dist. Clermont No. CA2007-01-

012,

, quoting State v. Jenks,

(1991), paragraph two

of the syllabus.

{¶ 11} As previously noted, appellant was convicted of robbery. The crime of robbery

is defined under R.C. 2911.02 and provides: "[n]o person, in attempting or committing a theft

offense or in fleeing immediately after the attempt or offense shall * * * [h]ave a deadly

weapon on or about the offender's person or under the offender's control." R.C.

2911.02(A)(1). -3- Butler CA2013-04-058

{¶ 12} Appellant first argues that his conviction must be reversed because the state

failed to provide sufficient evidence that he committed a "theft offense." Specifically,

appellant alleges the state failed to provide evidence that the money found in appellant's

possession belonged to Atwood.

{¶ 13} The term "theft offense" is defined in R.C. 2913.01(K), which provides a list of

crimes that constitute theft offenses. In this case, appellant was charged with committing a

theft offense in violation of R.C. 2913.02, which provides:

No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [w]ithout the consent of the owner or person authorized to give consent.

{¶ 14} Based on our review of the record, we find the state presented sufficient

evidence to support a finding that appellant committed a theft offense. During appellant's

trial, the state presented the testimony of Smith, Atwood, and the two investigating police

officers. Smith testified that she observed appellant pick an object off the ground, shuffle

through the contents, and then walk behind the store. Smith also testified that she located

Atwood's wallet behind the store in the vicinity of appellant. Furthermore, Atwood clearly

testified that he was missing approximately $34.00 from his wallet. Atwood's testimony was

further corroborated by the investigating police officers who testified that appellant was

arrested with $35.00 in his possession.

{¶ 15} The testimony introduced by the state gives rise to a reasonable inference that

appellant picked up Atwood's wallet, removed Atwood's money that was contained therein,

and then fled the scene for the purpose of obtaining control of the money. A rational trier of

fact, relying on common knowledge and experience, could have found that appellant

committed a theft offense beyond a reasonable doubt. Therefore, the state presented

sufficient evidence that appellant committed a theft offense within the meaning of R.C.

-4- Butler CA2013-04-058

2911.02. Appellant's arguments to the contrary are without merit.

{¶ 16} Appellant next contends that the state failed to provide sufficient evidence that

he possessed a "deadly weapon." In support, appellant argues the state failed to provide

sufficient evidence that the knife was capable of inflicting death because the weapon was

never recovered, there was no testimony about the size or weight of the weapon and "[a]t no

point was the instrument at-issue 'wielded against the body of the victim or threatened to be

so wielded.'"

{¶ 17} Pursuant to R.C. 2923.11(A), a "deadly weapon" is defined as "any instrument,

device, or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon." The definition of deadly weapon in

R.C. 2923.11(A) imposes two requirements of proof. "First, the article must be capable of

inflicting death. Second, the article must either (1) have been designed or specially adapted

for use as a weapon or (2) possessed, carried, or used as a weapon." State v. Woodruff,

12th Dist. Butler No. CA2008-11-284,

, ¶ 21, quoting State v. Cramer, Butler

App. No. CA2003-03-078,

. "Either alternative branch of the second

requirement can be employed to prove the proposition."

"When use is a factor, the

manner of its use and the nature of the instrument itself determines its capacity to inflict

death." Cramer at ¶ 26.

{¶ 18} Under Ohio law, a knife is not presumed to be a deadly weapon. State v.

Pringle, 12th Dist. Butler Nos. CA2007-08-193, CA2007-09-238,

.

"However, a knife is an instrument readily identifiable as one capable of inflicting death."

State v. Watters, 8th Dist. Cuyahoga No. 82451,

; State v. Cattledge,

10th Dist. Franklin No. 10AP-105,

.

{¶ 19} As an initial matter, the fact that the knife was never recovered is not dispositive

of the issue of whether appellant possessed a deadly weapon. Cramer,

at ¶ -5- Butler CA2013-04-058

31; State v. Hunter, 8th Dist. Cuyahoga No. 90126,

; State v. Hill, 5th

Dist. Stark No. 1998CA0083,

, *10 (March 8, 1999). The undisputed facts

show that appellant brandished a weapon, which caused the victims to retreat and call 911.

The police later located appellant at his residence where he was arrested. Accordingly,

appellant clearly had sufficient time to dispose of the weapon or conceal its location.

{¶ 20} In the present case, both Smith and Atwood testified that appellant brandished

a "knife" or "razorblade knife" during the altercation in a threatening manner to prevent them

from recovering the stolen money. Smith testified "[w]ell, at first [appellant] was holding [the

knife] kind of like to his side, just to his side. And then [appellant] pulled out the money, * * *

and that's when he kind of raised it a little bit. And then that's when * * * [appellant] kept

telling us to stay away from him and he was going to use it." Additionally, Atwood testified

"[appellant] had * * * pulled out the money and flashed it to us and had had [sic] a knife on his

side and just * * * made it pretty clear that * * * if we came any closer possibly he'd use it or

so." The state also provided the tape recorded 911 call made by Smith, in which she stated

that appellant had a knife.

{¶ 21} We find the testimony provided by Atwood and Smith was clearly sufficient to

establish that appellant possessed a "deadly weapon" within the meaning of R.C. 2923.11.

The state presented uncontested evidence that appellant possessed a knife and wielded it in

a threatening manner to prevent the victims from recovering the stolen money. Indeed,

Smith acknowledged during her testimony that appellant brandished the weapon and stated

that he was "going to use [the knife]." The testimony provided by the state clearly indicates

that appellant used the knife as a deadly weapon when he brandished it and threatened the

victims. See, e.g., State v. Pringle, 12th Dist. Butler Nos. CA2007-08-193, CA2007-09-238,

(affirming a finding that a knife was a deadly weapon when appellant

picked up a knife and threatened to "cut [the victim's] insides out"); State v. Robinson, 4th -6- Butler CA2013-04-058

Dist. Lawrence No. 10CA6,

(appellant's statement to victim "I'm going

to cut you up" demonstrated that appellant intended to use the knife as a deadly weapon);

State v. Workman,

(9th Dist. 1992) (affirming a finding that a knife

was a deadly weapon when appellant brandished a knife after being chased and confronted

by police officers). Therefore, we find that there was sufficient evidence that appellant

possessed a deadly weapon as defined under R.C. 2923.11(A).

{¶ 22} Finally, appellant argues that the state failed to provide sufficient evidence that

he possessed the weapon while "fleeing immediately" from the scene of the theft offense.

Specifically, appellant contends that his alleged possession of the knife was not

simultaneous with the theft offense or while "fleeing immediately" from the theft offense. In

addition, appellant alleges that his conviction should be reversed because there was a

significant lapse in time and a number of intervening events between the time appellant

picked up the money in the parking lot and when appellant was seen holding a knife. In

support of his argument appellant cites the Ohio Supreme Court's decision in State v.

Thomas,

,

.

{¶ 23} The terms "fleeing" and "immediately" are not defined in the Ohio Revised

Code. Thomas at ¶ 15. However, in an effort to define "fleeing immediately," the Ohio

Supreme Court has defined the term "flee" as "to run away from, to try to escape, to hasten

for safety, or to withdraw hastily,' and 'immediate' as 'occurring without delay.'" State v.

Whitaker, 12th Dist. Butler No. CA2008-01-034,

, quoting Thomas at ¶

15. The determination of whether a "person is 'fleeing immediately' is 'fact-specific, as all

determinations under [R.C. 2911.02(A)] must be.'" State v. Hoskins, Warren No. CA2013-02-

013,

, quoting Thomas at ¶ 16.

{¶ 24} In Thomas, the Ohio Supreme Court reversed a defendant's conviction for

robbery. Thomas at ¶ 17. There, the defendant left a grocery store with stolen merchandise, -7- Butler CA2013-04-058

dropped it, and then continued to walk away from the store by entering a nearby laundromat.

Id. at ¶ 12. The defendant was subsequently approached by a security guard from the

grocery store who asked the defendant to return to the store, to which he agreed. Id.

However, as the defendant and security guard approached the grocery store, the defendant

struck the security guard in the face and attempted to flee. Id. In reversing the defendant's

robbery conviction, the Ohio Supreme Court noted that there had been a significant lapse of

time between the theft offense and the defendant's attempt to flee, so that the defendant's

flight could not have immediately followed the theft. Id. at ¶ 16. However, the Court also

acknowledged that under slightly different circumstances, the defendant's conduct could

have elevated the theft offense to robbery. Id. For example "had [the defendant] struggled

with [the security guard] in an attempt to flee immediately after [the defendant] left the store,

or after he dropped the stolen goods, or after being forced by [the security guard] to return to

the store, then an ensuing injury, attempt to injure, or threat to injure might justify elevation of

the offense from theft to robbery." Id.

{¶ 25} We find the facts in this case are sufficient to sustain appellant's robbery

conviction. In this case, both Atwood and Smith testified that appellant fled from the scene

almost immediately after Atwood's wallet was discovered in the nearby bushes. Following a

brief chase, Atwood and Smith again encountered appellant in an alley a few blocks from the

Circle K convenience store. At that point, appellant brandished the knife and threatened the

victims. According to Smith's testimony, less than five minutes had elapsed from the time

appellant took Atwood's wallet to the time appellant brandished the weapon. Despite

appellant's arguments, there was not a significant lapse in time or numerous intervening

events between the time of the theft offense and the time in which appellant brandished the

knife. The evidence reflects that the entire incident lasted a short period of time and involved

one continuous event whereby appellant committed a theft offense, attempted to flee from -8- Butler CA2013-04-058

the victims, and then brandished a deadly weapon when confronted by the victims.

{¶ 26} The testimony provided by Atwood and Smith gives rise to a reasonable

inference that appellant possessed the knife while attempting to flee from the theft offense

and therefore was based on sufficient evidence. Accordingly, appellant's argument that his

conviction was based on insufficient evidence based on a "significant lapse in time" and "a

number of intervening events" is without merit.

{¶ 27} Furthermore, although we have found the evidence supports the jury's verdict

that appellant brandished a deadly weapon while "fleeing immediately" from the commission

of the theft offense, we also note that the evidence was sufficient to support a finding that

appellant possessed a deadly weapon while committing the theft offense. The record reflects

that appellant retained possession and "exert[ed] control" of the stolen money throughout the

entire chain of events and the theft offense was still in progress when appellant was

confronted by Atwood and Smith behind the Circle K convenience store. While being chased

by Atwood and Smith, appellant brandished the weapon, which caused the victims to leave

and call 911. See State v. Beasley, 8th Dist. Cuyahoga No. 87070,

; see

also State v. Collins, 10th Dist. Franklin No. 10AP-835,

. Therefore,

appellant's possession of a deadly weapon also satisfied the immediacy element contained

within R.C. 2911.01(A)(1).

{¶ 28} Appellant's first assignment of error is overruled.

{¶ 29} Assignment of Error No. 2:

{¶ 30} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶ 31} Under his second assignment of error, appellant alleges that his conviction is

against the manifest weight of the evidence. Specifically, appellant argues that Atwood and

Smith were not credible witnesses because both witnesses avoided their subpoenas and -9- Butler CA2013-04-058

were only present in court after material witness warrants were issued and they were

arrested. Appellant maintains that, in addition to various deficiencies in the evidence

presented by the state, the unreliability of the witnesses caused the jury to issue an

erroneous verdict. Accordingly, appellant contends that the jury "clearly lost its way" and his

conviction must be reversed.

{¶ 32} "While the test for sufficiency requires a determination of whether the state has

met its burden of production at trial, a manifest weight challenge 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." State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-

2298, ¶ 34; State v. Gray, 12th Dist. Butler No. CA2011-09-176,

, ¶ 78. In

determining whether the conviction is against the manifest weight of the evidence, an

appellate court "must weigh the evidence and all reasonable inferences from it, consider the

credibility of the witnesses and determine whether in resolving conflicts, the [fact finder]

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. Coldiron, 12th Dist. Clermont Nos.

CA2003-09-078, CA2003-09-079,

. "This discretionary power should

be exercised only in the exceptional case where the evidence weighs heavily against

conviction." Id; Gray at ¶ 78.

{¶ 33} Based on our review of the record, appellant's argument is without merit. As

previously noted, the state presented sufficient, uncontested evidence that appellant

committed the crime of robbery. While it is true that the two eyewitnesses, Atwood and

Smith, were issued material witness warrants and were arrested in order to secure their

testimony, the jury was made well-aware of that fact during the trial. Nevertheless, the jury

chose to believe the testimony offered by the state.

{¶ 34} In light of the evidence presented, the jury did not clearly lose its way in - 10 - Butler CA2013-04-058

concluding that appellant was guilty of robbery. See State v. Dandridge, 12th Dist. Butler No.

CA2003-12-330,

("A conviction is not against the manifest weight of

the evidence simply because the jury believed the prosecution testimony"); see also State v.

Walker, Butler App. No. CA2006-04-085,

, quoting State v. DeHass,

(1967) (credibility of the witnesses and the weight to be given the evidence

presented are primarily matters for the trier of fact to decide). The undisputed evidence

offered by the state supports the finding that appellant committed a theft offense while in

possession of a deadly weapon, attempted to flee from the victims, and then brandished a

weapon when confronted by the victims. Accordingly, appellant's conviction was not against

the manifest weight of the evidence and the second assignment of error is overruled.

{¶ 35} Judgment affirmed.

RINGLAND, P.J., and HENDRICKSON, J., concur.

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