[Cite as State v. Colegrove,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102173

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

JAMAR COLEGROVE

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-583355-A

BEFORE: Celebrezze, A.J., E.A. Gallagher, J., S. Gallagher, J.

RELEASED AND JOURNALIZED: August 27, 2015 ATTORNEY FOR APPELLANT

Thomas A. Rein 700 W. St. Clair Suite 212 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Ashley B. Kilbane Stephanie Anderson Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., A.J.:

{¶1} Appellant, Jamar Colegrove, appeals his robbery conviction claiming it is

unsupported by sufficient evidence, against the manifest weight of the evidence, and the

court improperly allowed other acts evidence to taint his trial. After a thorough review

of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} An indictment was filed on March 13, 2014, charging appellant with two

counts of robbery — violations of R.C. 2911.02(A)(2). Appellant was declared indigent,

and counsel was assigned. The indictment and bill of particulars alleged that appellant

robbed Dale Hancock on July 28, 2013, and Monique Sampson on July 30, 2013.

Discovery was exchanged, and a trial date was set. However, on the eve of trial, the

prosecutor was informed by the victims that they would not testify because appellant’s

family members were attempting to prevent them from appearing. Relying on recordings

of appellant’s jailhouse phone calls, the state filed a motion seeking to have hearsay

statements of the victims admitted as a result of appellant’s improper attempts to prevent

them from testifying at trial. The court did not grant this motion, but did grant the state’s

other motions seeking material-witness warrants to compel the victims to testify.

{¶3} On August 11, 2014, after a jury waiver was executed, a bench trial

commenced. There, Hancock, Sampson, and a number of police officers testified. At

the close of the state’s case, the trial court granted appellant’s Crim.R. 29 motion in part by dismissing the count of robbery related to Sampson. At the close of trial, appellant

was found guilty of the remaining count of robbery. The trial court ordered a

presentence investigation report and set a sentencing date. The trial court conducted a

combined sentencing hearing encompassing this case as well as several other pending

cases. Relevant to this appeal, appellant received a five-year prison term for the robbery

conviction and was informed of a three-year term of postrelease control following release

from prison. Appellant filed the instant appeal assigning three errors for review:

I. The trial court erred in denying Appellant’s motion for acquittal as to the charge when the state failed to present sufficient evidence to sustain a conviction.

II. Appellant’s conviction is against the manifest weight of the evidence.

III. The trial court erred when it admitted other acts testimony in violation

of R.C. 2945.59, Evid.R. 404(B) and Appellant’s rights under Article I,

Section 10 of the Ohio Constitution and the Fourteenth Amendment to the

United States Constitution.

II. Law and Analysis

A. Sufficiency

{¶4} Appellant first argues his robbery conviction is not supported by sufficient

evidence and, therefore, the court erred in denying his Crim.R. 29 motion for acquittal.

{¶5} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.

State v. Hill, 8th Dist. Cuyahoga No. 98366,

. Crim.R. 29 requires

the trial court to issue a judgment of acquittal where the evidence presented by the state is insufficient to sustain a conviction for an offense. State v. Taylor, 8th Dist. Cuyahoga

No. 100315,

. This court reviews the denial of such a motion using

the same standard employed in a sufficiency claim. Id. at ¶ 21-23, citing Cleveland v.

Pate, 8th Dist. Cuyahoga No. 99321,

, citing State v. Mitchell, 8th Dist.

Cuyahoga No. 95095,

.

{¶6} The state has the burden of proving each element of a charged offense. A

claim that a conviction is unsupported by sufficient evidence tests whether the state has

met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048,

, citing State v. Thompkins,

,

(1997). This court must determine “‘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. Leonard,

,

,

, ¶ 77, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. In a sufficiency inquiry, an

appellate court does not assess whether the state’s evidence is to be believed but whether,

if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th

Dist. Cuyahoga No. 91682,

, ¶ 25.

{¶7} In support of its case, the state presented the testimony of Dale Hancock.

He testified that he dated appellant’s mother for a short period of time before July 28,

2013, but had known her for many years. Hancock stated appellant had argued with him

about the romantic relationship that existed between Hancock and appellant’s mother. In the early morning hours of July 28, 2013, Hancock had been drinking at a friend’s house

on Guardian Boulevard in Cleveland, Ohio. He left after midnight and was walking

toward Bellaire Road to catch a bus. He was walking with his bicycle, which he testified

had a flat tire. As he passed a friend’s house, he said hello to some people on the porch.

Hancock testified he saw Anthony Smith, who lived in the home, and stopped to say

hello. When Smith responded by using Hancock’s first name, two men who were with

Smith started to come toward Hancock threatening him. Hancock identified one of the

males as appellant. Appellant was shouting “you better stop messing with my mom.”

Hancock began to walk as quickly as he could toward Bellaire. However, Hancock

testified he recently had surgery and could not go very fast. When appellant and the

other unknown individual were about to catch up to Hancock, he testified he dropped his

bike and turned to square up to the individuals pursuing him. He slipped on the curb and

fell to the ground. The two men then starting hitting and kicking him. Appellant then

went through his pockets and stole roughly $180, a pack of cigarettes, a lighter, and his

keys.

{¶8} A woman stopped her car and shouted at the two males to stop beating

Hancock. Someone also called 911 and reported that three men were beating up an

individual at the corner of Bellaire and Guardian. According to Hancock, appellant and

the other male then walked away. Hancock remained on the ground and waited for

police and emergency personnel to arrive. He was transported to Lakewood Hospital and

treated for multiple contusions to his head and body. {¶9} Hancock’s testimony clearly establishes a violation of R.C. 2911.02(A)(2)

for robbery. This statute provides in pertinent part that “[n]o person, in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense, shall * *

* [i]nflict, attempt to inflict, or threaten to inflict physical harm on another * * *.”

Hancock’s testimony satisfies all of these elements. He positively identified appellant as

one of his attackers on July 28, 2013.1 He testified appellant caused physical harm by

hitting and kicking him. Appellant took money and other items from him. Therefore,

appellant’s conviction for robbery is supported by sufficient evidence.

B. Manifest Weight

{¶10} In contrast to a challenge based on sufficiency of the evidence, a manifest

weight challenge attacks the credibility of the evidence presented and questions whether

the state met its burden of persuasion rather than production. State v. Whitsett, 8th Dist.

Cuyahoga No. 101182,

, citing Thompkins,

,

; State v. Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 13.

When considering a claim that a conviction is against the manifest weight of the

evidence, this court sits as a “thirteenth juror” and may disagree “with the factfinder’s

resolution of conflicting testimony.”

. The weight-of-the-evidence

standard “addresses the evidence’s effect of inducing belief.” State v. Wilson,

,

,

, ¶ 25, citing

.

1 This includes both an in court identification as well as a previous photo array lineup as testified to by Cleveland Police Detective Robert Miles. {¶11} This court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the witnesses’ credibility and determines whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

, citing State v. Martin,

,

(1st

Dist. 1983). In conducting such a review, this court remains mindful that the credibility

of the witnesses are primarily for the trier of fact to assess. State v. Bradley, 8th Dist.

Cuyahoga No. 97333,

, citing State v. DeHass,

,

(1967), paragraph one of the syllabus. The trier of fact is in the best

position to make credibility determinations because this court cannot view the demeanor

of a witness while testifying. Therefore, the trier of fact is in the best position to

determine if the proffered testimony is credible. State v. Holloway, 8th Dist. Cuyahoga

No. 101289,

, ¶ 42, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103,

. Reversal on manifest weight grounds is reserved for the

“‘exceptional case in which the evidence weighs heavily against the conviction.’”

, quoting

.

{¶12} Appellant claims there is no evidence of robbery because Hancock’s

testimony is unbelievable, contradicted by other evidence, and wholly unreliable.

{¶13} First, appellant argues that Hancock’s criminal history casts doubt on the

veracity of his testimony. Hancock does indeed have a lengthy criminal history that was

explored on cross-examination. Nothing in that history would lead this court to conclude that appellant was not attacked on July 28, 2013, by appellant and at least one other man.

Hancock established that he knew appellant and that appellant had confronted Hancock

about his displeasure that Hancock was romantically involved with appellant’s mother.

Hancock testified that appellant had warned him to stay away from the area where his

mother lived — a short distance from where he was attacked. Someone called 911 and

the tape of that call was played in court. The caller described the attack. It differed

somewhat from Hancock’s account in that the caller indicated three men, rather than two,

had jumped an individual and were beating him up, but that does not diminish Hancock’s

identification of appellant as one of those men.

{¶14} Even if he attacked Hancock, appellant argues that the only evidence that he

took anything from Hancock was concocted by Hancock long after the attack. He

claims, pointing to the medical records generated by Lakewood Hospital, that Hancock

did not inform anyone there that he had been robbed.

{¶15} The medical records admitted as evidence at trial include a narrative

describing the events that caused Hancock to need treatment. This intake narrative

includes a statement that Hancock had been beaten and his “cast” stolen. Because

Hancock did not have a cast, it is likely that Hancock indicated his “cash” was stolen and

the person dictating the narrative misunderstood the word as “cast” or a clerical error

occurred. Even if the statement was accurately recorded, it is still a statement that

property was taken. In any event, Hancock testified he told hospital personnel he had

been beaten and robbed. {¶16} The medical records also indicated that Hancock told medical personnel that

he was hit with a rock or brick. This account conflicts with his trial testimony where he

said he was punched, kicked, and stomped. The police report that was used on

cross-examination also indicated that Hancock reported to police that he was pulled from

his bike by the two attackers. This also conflicts with his trial testimony where he stated

that he was walking with his bike because it had a flat tire.

{¶17} These inconsistencies, however, do not cast serious doubt on appellant’s

role in the beating and robbery of Hancock. The important aspects of Hancock’s

testimony remained largely consistent over time, including the identity of appellant as one

of his attackers. Appellant’s conviction for robbery is not against the manifest weight of

the evidence.

C. Other Acts Evidence

{¶18} Appellant finally claims that the court erred in allowing the state to elicit

improper other acts testimony that prejudiced him and created an unjust result.

{¶19} The complained of evidence largely consists of jail-house recordings of

phone conversations appellant had with his brother and Hancock’s testimony that

appellant’s brother attempted to prevent him from testifying. Monique Sampson also

testified to being contacted by people claiming to be appellant’s family members and

being pressured not to testify against him but that she did not feel intimidated.

{¶20} This is not other acts evidence. With limited exception outlined in the rule,

Evid.R. 404(B) prohibits the introduction of other acts that “prove the character of a person in order to show that he acted in conformity therewith.” This relates only to acts

wholly independent of the charged crimes. State v. Woodard,

,

(1993). “[E]vidence of threats or intimidation of witnesses reflect a

consciousness of guilt and are admissible as admission by conduct.” State v. Soke,

,

(8th Dist. 1995), citing State v. Richey,

,

(1992). Intimidation of a witness is not independent of

the charged offense; it is an indicator of guilt.

citing State v. Leonard, 4th Dist.

Lawrence No. CA92-12,

(May 21, 1993); State v. Reese,

8th Dist. Cuyahoga Nos. 53115 and 53116,

(Jan. 7, 1988).

{¶21} Further, acts committed by appellant’s brother or other family members to

suppress witness testimony are admissible against appellant. State v. Williams, 8th Dist.

Cuyahoga No. 89461,

(“Attempts by persons other than the

accused to suppress evidence is admissible against the accused where the accused is

connected to such attempts.”). Here, appellant made jailhouse phone calls where he

asked others to attempt to influence the testimony of victims in the criminal case.

Appellant can fairly be said to be connected to attempts made to influence the witnesses

against him. Therefore, the complained of evidence does not qualify as prohibited

Evid.R. 404(B) evidence.

{¶22} The only argument left is that the court improperly admitted or allowed

Hancock’s testimony that appellant’s whole family is “wild.” Hancock testified “they

are all wild, his whole family. It’s ridiculous. They are all the same. They are all just wild.” This isolated comment about appellant and his family members does not reflect

that a manifest injustice occurred that unfairly prejudiced appellant. This was a bench

trial where the trial judge is presumed to consider only proper evidence. State v.

Chandler, 8th Dist. Cuyahoga No. 81817,

, citing State v. Post,

,

(1987). Appellant’s counsel objected to the

question posed by the prosecutor about whether Hancock felt intimidated. The question

was not improper. The resultant answer was objectionable, but counsel did not move to

strike. Therefore, it is not a situation where the court overruled an objection to improper

evidence as was the case in State v. Schillo, 8th Dist. Cuyahoga No. 100080,

.

{¶23} The question, when read in context, was not designed to elicit improper

testimony. The state did not draw attention to the answer or comment on it. There is

also no suggestion in the record that the court considered this improper comment when

rendering its decision. Appellant has not rebutted the above presumption that the court

considers only proper evidence. See State v. Campbell, 8th Dist. Cuyahoga Nos. 100246

and 100247,

.

{¶24} Appellant’s third assignment of error is overruled.

III. Conclusion

{¶25} Appellant’s robbery conviction is supported by sufficient evidence and is

not against the manifest weight of the evidence. Appellant’s acts and evidence related to the attempted interference with the testimony of witnesses was not improper other acts

evidence. It is admissible evidence of consciousness of guilt.

{¶26} Judgment affirmed.

{¶27} It is ordered that appellee recover of 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 conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

_________________________________________________________ FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and SEAN C. GALLAGHER, J., CONCUR