[Cite as State v. Robinson,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-20-013

Appellee Trial Court No. 18 CR 909

v.

Michael W. Robinson DECISION AND JUDGMENT

Appellant Decided: December 30, 2020

*****

Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

ZMUDA, P.J.

I. Introduction

{¶ 1} Appellant, Michael Robinson, appeals the judgment of the Sandusky County

Court of Common Pleas, sentencing him to three years in prison after a jury found him

guilty of one count of attempted grand theft and one count of breaking and entering.

Because we find that appellant’s convictions were supported by sufficient evidence and were not against the manifest weight of the evidence, and in light of our determination

that the trial court’s imposition of costs was not contrary to law, we affirm.

A. Facts and Procedural Background

{¶ 2} On December 18, 2019, appellant was indicted on one count of attempted

grand theft in violation of R.C. 2913.02(A)(1) and (B)(4), and R.C. 2923.02(A), a felony

of the second degree, and one count of breaking and entering in violation of R.C.

2911.13(A), a felony of the fifth degree. The charges were based upon an incident in

which appellant was found alone inside a federally licensed firearms dealer, Associated

Buyers, early in the morning on June 2, 2018.

{¶ 3} On September 25, 2018, appellant appeared before the trial court for

arraignment, at which he entered a plea of not guilty to the aforementioned charges.

Thereafter, the parties conducted pretrial motion practice and discovery. On

December 19, 2019, a two-day jury trial commenced.

{¶ 4} During its case-in-chief, the state called four witnesses. The state’s first

witness was officer Samantha Lewis of the Fremont Police Department. On June 2,

2018, at 1:15 a.m., Lewis, along with other officers, responded to Associated Buyers in

Fremont, Sandusky County, after being alerted that the alarm was triggered at that

address. Lewis described Associated Buyers as a “small little store” that sells “a whole

bunch of different things, like firearms to things like pillows, it’s an interesting little

shop.”

2. {¶ 5} Upon arrival at Associated Buyers, Lewis and other law enforcement

officers proceeded to check to see whether any of the doors and windows were unlocked

or broken. Lewis testified that her check of the premises revealed that “there was an

open window which had been broken open.” Lewis stated that she stood at the window

and listened for noise emanating from inside Associated Buyers. After a few moments,

Lewis heard the sound of someone “scuffling around inside, at which point it was

decided that we would make contact with [officer] Bush to bring in K-9 Woody as well

as the key holder to get into the building under the assumption that there might be

somebody inside that shouldn’t be.” Lewis testified that Associated Buyers was not open

for business at the time.

{¶ 6} Thereafter, the officers surrounded the premises in order to prevent the

suspected intruder from escaping unnoticed. After further scanning of the area, Lewis

noticed a muddy shoeprint on the north side of an alley adjacent to the building, which

she photographed. Matching muddy shoeprints were subsequently discovered inside

Associated Buyers and around the exterior area near the broken window.

{¶ 7} As its second witness, the state called one of the owners of Associated

Buyers, Edward Schultz. At 1:30 a.m. on June 2, 2018, Schultz was awoken when he

received a phone call notifying him that the alarm at Associated Buyers had been

triggered. Schultz testified that Associated Buyers was a federally licensed firearm

dealer at the time of the incident, and indicated that the store was closed to the public at

the time the alarm was triggered. Schultz went on to state that he did not give anyone

3. permission to be in the store at the time of the incident, and thus nobody should have

been inside the store.

{¶ 8} Later in his testimony, Schultz explained that he was the one who closed

Associated Buyers at the end of business hours on June 1, 2018. According to Schultz,

everything was in order and the store was secured prior to his departure from the store on

June 1. Schultz testified that none of the store’s windows were broken and he did not

track the muddy shoeprints into the store.

{¶ 9} Schultz noted that muddy shoeprints were discovered around the area of

Associated Buyers where the firearms are located. Further, Schultz examined

photographs of the store taken by law enforcement and noted that two rifles had been

repositioned from their ordinary location. According to Schultz, the rifles “weren’t there

when I closed the business.” Schultz testified that one of the rifles, a Ruger 10/22, was

operable.

{¶ 10} As he was examining the photographs of the interior of Associated Buyers,

Schultz noticed a set of pliers sitting atop the locked display case where the store’s

handguns are stored. Schultz explained that he had never seen those particular pliers

before. Further, Schultz observed what appeared to him as “marks, like, pry marks” on

the back of the display case, which he had not seen prior to the incident, and he also

noticed that the sliding glass panel on the back of the display was off its track.

{¶ 11} At the conclusion of Schultz’s testimony, the state called officer Brian

Kingsborough of the Fremont Police Department for its third witness. During his

4. testimony, Kingsborough stated that he, along with other officers, made entry into

Associated Buyers and discovered appellant alone inside the building. Kingsborough

proceeded to take appellant into custody. Kingsborough testified that appellant was in

possession of an empty duffle bag large enough to contain a handgun, and he was laying

on the bottom of a display shelf in the area where the firearms were located when he was

discovered by police.

{¶ 12} As its fourth and final witness, the state called detective Clayton Holskey

of the Fremont Police Department. On June 2, 2018, Holskey received a call from his

sergeant alerting him to the alarm call at Associated Buyers. Holskey responded to the

scene and conducted an investigation.

{¶ 13} As part of his investigation, Holskey noticed what he described as “drips of

what appear[ed] to be blood from the broken window down onto the floor.” More drops

of blood were found inside Associated Buyers. Holskey collected a sample of the blood

and had it compared to blood that was drawn from appellant pursuant to a search warrant.

Additionally, Holskey swabbed skin cells from the pliers that were lying on a shelf in the

area in which appellant was located. The blood sample and the skin cell sample were

sent to the Bureau of Criminal Investigations for testing. Ultimately, it was determined

that both samples matched appellant’s DNA.

{¶ 14} During his testimony, Holskey stated that he suspected that the pliers were

used by appellant to “pry open the doors on the handgun display case.” Holskey

compared his measurements of the width of the pliers against the marks made on the

5. wood of the handgun display case, determined that the sizes matched up, and thus

concluded that the pliers were used in an effort to pry open the display case.

{¶ 15} Subsequently, Holskey executed a search warrant relating to appellant’s

mobile phone. During his examination of the phone, Holskey found a Facebook

Messenger thread between appellant and his friend, Don, that took place starting at

11:07 p.m. on the evening prior to the incident at Associated Buyers. During the message

thread, appellant wrote to Don, “Need an all by.” Don replied, “You were here,” and

appellant responded that he was “[a]bout to do something bad.” Don then encouraged

appellant to “get it, Bro.” Appellant replied, “You got me,” and Don said “yep, we

playing cards.”

{¶ 16} At the close of the state’s case-in-chief, appellant moved for an acquittal

under Crim.R. 29, arguing that the state’s evidence failed to establish that appellant

intended to steal a firearm from Associated Buyers. The trial court summarily denied

appellant’s Crim.R. 29 motion, and the matter proceeded to appellant’s case-in-chief.

{¶ 17} Appellant took the stand as the only witness during his case-in-chief. For

his part, appellant testified that he suffers from post-traumatic stress disorder following

his military service. Appellant stated that he experiences blackouts due to his condition,

and insisted that he could not recall the events that transpired on the morning of June 2,

2018. Appellant went on to deny that the pliers found inside Associated Buyers belonged

to him. When asked about the bag he was carrying, appellant explained that he is a

blacksmith and was planning to repair a knife for Don.

6. {¶ 18} Regarding his Facebook Messenger conversation with Don, appellant

testified: “From what I – from earlier in that night before I went to sleep at home, I

texted Don about going to a card game, and it’s an all buy in, not a – what they were

referring to, because I didn’t have enough money on me at the time to even buy in, which

you had to buy into the game and get everything squared away.” On cross-examination,

the state asked appellant about his message to Don indicating that he was “[a]bout to do

something bad.” Appellant responded that “usually when you do something bad, that

means you’re going to clean up at the card game.”

{¶ 19} At the conclusion of his testimony, appellant rested and renewed his

Crim.R. 29 motion, which was again denied by the trial court. Thereafter, the parties

provided their closing arguments and the trial court instructed the jury. Following its

deliberations, the jury returned with a guilty verdict as to the charges of attempted grand

theft and breaking and entering. The trial court ordered the preparation of a presentence

investigation report, and the matter was continued for sentencing.

{¶ 20} At a sentencing hearing held on February 18, 2020, the trial court heard

statements from the state, appellant’s counsel, and appellant. Thereafter, the trial court

addressed appellant and informed him that it considered the principles and purposes of

sentencing under R.C. 2929.11, as well as the seriousness and recidivism factors under

R.C. 2929.12. The court ultimately ordered appellant to serve three years in prison for

attempted grand theft and one year in prison for breaking and entering, to be served

concurrently. The court went on to order appellant to pay restitution and “pay the court

7. costs,” and followed up in its sentencing entry to indicate that appellant “is ordered to pay

all court costs * * *.” Appellant’s timely notice of appeal followed.

B. Assignments of Error

{¶ 21} On appeal, appellant assigns the following errors for our review:

Assignment of Error One: Appellant’s convictions are not supported

by sufficient evidence in violation of the Due Process Clauses of the U.S.

Constitution and the Ohio Constitution, and are against the manifest weight

of the evidence.

Assignment of Error Two: The imposition of “costs” is contrary to

law.

II. Analysis

A. Sufficiency and Manifest Weight

{¶ 22} In his first assignment of error, appellant argues that his convictions are not

supported by sufficient evidence and are against the manifest weight of the evidence.

{¶ 23} In reviewing a record for sufficiency, “[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. Jenks,

,

(1991), paragraph two of the

syllabus.

{¶ 24} When reviewing a manifest weight claim, we sit as a “thirteenth juror.”

State v. Thompkins,

,

(1997). That is, we review

8. the entire record, weigh the evidence and all reasonable inferences, and consider the

credibility of witnesses.

Our role is to determine “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.”

We reverse a conviction on manifest weight grounds for only the most “exceptional case

in which the evidence weighs heavily against the conviction.”

.

{¶ 25} In the present case, appellant was convicted of attempted grand theft and

breaking and entering. The theft statute, R.C. 2913.02, provides, in relevant part:

(A) No person, with purpose to deprive the owner of property or

services, shall knowingly obtain or exert control over either the property or

services in any of the following ways:

(1) Without the consent of the owner or person authorized to give

consent;

***

(B)(1) Whoever violates this section is guilty of theft.

***

(4) If the property stolen is a firearm or dangerous ordnance, a

violation of this section is grand theft. Except as otherwise provided in this

division, grand theft when the property stolen is a firearm or dangerous

ordnance is a felony of the third degree, and there is a presumption in favor

of the court imposing a prison term for the offense. If the firearm or

9. dangerous ordnance was stolen from a federally licensed firearms dealer,

grand theft when the property stolen is a firearm or dangerous ordnance is a

felony of the first degree. The offender shall serve a prison term imposed

for grand theft when the property stolen is a firearm or dangerous ordnance

consecutively to any other prison term or mandatory prison term previously

or subsequently imposed upon the offender.

{¶ 26} On appeal, appellant argues that the state’s evidence was insufficient to

establish that he attempted to steal an “operable” firearm, or that Associated Buyers is a

federally licensed firearms dealer.

{¶ 27} R.C. 2913.01(EE) provides that the word “firearm” used in Chapter 2913

has the same meaning as in R.C. 2923.11. Under R.C. 2923.11(B)(1), a firearm is

defined as “any deadly weapon capable of expelling or propelling one or more projectiles

by the action of an explosive or combustible propellant. ‘Firearm’ includes an unloaded

firearm, and any firearm that is inoperable but that can readily be rendered operable.”

Further, R.C. 2923.11(B)(2) provides that circumstantial evidence including “the

representations and actions of the individual exercising control over the firearm” is

sufficient to determine whether the firearm is operable.

{¶ 28} “In determining whether a firearm is operable, the trier of fact examines the

totality of the circumstances.” State v. Johnson, 9th Dist. Lorain No. 14CA010688, 2016-

Ohio-872, ¶ 8, citing State v. Hughes, 9th Dist. Summit No. 27061,

,

and Thompkins, supra,

,

(“In determining * * *

10. whether the firearm was operable or capable of being readily rendered operable at the time

of the offense, the trier of fact may consider all relevant facts and circumstances

surrounding the crime * * *.”).

{¶ 29} At trial, the state argued that the firearms in the display case and the “rifles,

including the Ruger, which were moved, were the items appellant intended to steal.”

Schultz testified at trial that two rifles, including a Ruger 10/22 that was capable of being

taken apart and stored in a bag, had been repositioned from their ordinary location.

Schultz explained that the rifles “weren’t there when I closed the business,” and he

specifically stated that the Ruger 10/22 rifle was operable.

{¶ 30} Testimony from a gun shop owner that a firearm is operable is clearly

sufficient to establish operability under R.C. 2923.11(B). See State v. Stodgel, 12th Dist.

Fayette No. CA2012-04-010,

, citing State v. Hughes, 3rd Dist.

Allen No. 1-94-81,

(June 29, 1995) (“The testimony of a gun shop

owner that the firearms stolen from his gun shop were capable of firing a projectile by the

action of an explosive or combustible propellant was sufficient to show that the guns

were operable even though they were not test fired.”); State v. Ross, 4th Dist. Ross No.

94 CA 2019,

(Dec. 21, 1994) (finding sufficient evidence of operability

where the gun shop owner testified that he received the firearm from the wholesaler in

assembled condition and noticed nothing wrong with the firearm). Given Schultz’s

testimony that the Ruger 10/22 rifle was operable, we reject appellant’s contention that

the state failed to introduce sufficient evidence as to the operability of the firearm at issue

11. in this case. Moreover, appellant does not challenge the state’s evidence regarding the

remaining elements of attempted grand theft. Therefore, we find no merit to appellant’s

sufficiency argument concerning the charge of attempted grand theft.

{¶ 31} As to the breaking and entering charge, appellant was convicted under R.C.

2911.13(A), which provides: “No person by force, stealth, or deception, shall trespass in

an unoccupied structure, with purpose to commit therein any theft offense, as defined in

section 2913.01 of the Revised Code, or any felony.”

{¶ 32} Appellant acknowledges, as he did at trial, that he was found inside

Associated Buyers on the morning of June 2, 2018. The evidence of a broken window

and his blood around the area of the broken glass demonstrates that he forced his way

into the store. Further, Schultz testified that nobody had permission to be in the store at

the time. Nonetheless, appellant argues that the state’s evidence was insufficient to

demonstrate that he broke into Associated Buyers with the purpose to commit a theft

offense. In support, appellant relies upon his testimony that he suffers from post-

traumatic stress disorder and blackouts, and could not recall anything that happened prior

to or during his time inside Associated Buyers.

{¶ 33} Under R.C. 2901.22(A), “[a] person acts purposely when it is the person’s

specific intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is the offender's specific intention to engage in conduct of that nature.”

12. {¶ 34} Here, the state introduced evidence that established that appellant, after

entering into Associated Buyers through a window he had broken, proceeded to the area

of the store where the firearms were kept, removed two rifles from their shelf, and

attempted to pry open the handgun display case. Two hours prior to the break-in,

appellant messaged Don and told him that he needed an “all by,” which in the context of

the conversation seemed to be a reference to an alibi given appellant’s follow up message

indicating that he was getting ready to “do something bad.”

{¶ 35} The foregoing evidence, viewed in a light most favorable to the

prosecution, is sufficient to prove that appellant’s specific intention in breaking into

Associated Buyers was to steal firearms. This is true regardless of the veracity of

appellant’s claim that he cannot remember the goings-on at Associated Buyers because

he blacked out.

{¶ 36} Appellant’s blackout defense is an affirmative defense that would allow

him to avoid liability even if the state produced sufficient evidence to support a

conviction. State v. Ireland,

,

,

.

“A sufficiency-of-the-evidence review does not apply to affirmative defenses because

such a review does not consider the strength of defense evidence.” State v. McBride, 5th

Dist. Stark No. 2019CA00038,

, citing State v. Oates, 2013-Ohio-

2609,

, ¶ 10 (3d Dist.), and State v. Hancock,

,

, ¶ 37. Therefore, appellant’s blackout defense is immaterial to whether

the state introduced sufficient evidence to support appellant’s breaking and entering

13. conviction. Because we find that the state did introduce sufficient evidence to support

the conviction, we reject appellant’s sufficiency argument.

{¶ 37} Furthermore, in light of the evidence introduced by the state going to all of

the elements of the offenses of attempted grand theft and breaking and entering, we do

not find that appellant’s blackout defense and his explanation of the statements he made

to Don over Facebook Messenger constitute evidence that bring this case into the

category of the exceptional case in which the evidence weighs heavily against the

conviction. Consequently, we conclude that appellant’s convictions were not against the

manifest weight of the evidence.

{¶ 38} Accordingly, we find appellant’s first assignment of error not well-taken.

B. Imposition of Costs

{¶ 39} In his second assignment of error, appellant argues that the trial court erred

in its imposition of costs.

{¶ 40} “An appellate court may not modify a financial sanction unless it finds by

clear and convincing evidence that it is not supported by the record or is contrary to law.”

State v. Farless, 6th Dist. Lucas Nos. L-15-1060 and L-15-1061,

,

citing State v. Collins,

,

, ¶ 30 (12th Dist.). Therefore,

“our standard of review on this issue is whether the imposition of costs was contrary to

law.” State v. Haynes,

,

(6th Dist.), citing R.C.

2953.08(A)(4) and (G)(2)(b).

14. {¶ 41} At sentencing, the trial court simply ordered appellant to “pay the court

costs.” Likewise, in its sentencing entry, the trial court indicated that appellant “is

ordered to pay all court costs * * *.” Appellant notes that the trial court failed to notify

him of precisely what costs it was ordering him to pay, and challenges the trial court’s

general imposition of costs that was unaccompanied by a finding that he is able to pay

such costs.

{¶ 42} In State v. Jones, 6th Dist. Sandusky No. S-18-036,

, we

explained that “R.C. 2929.28 defines ‘court costs’ as costs imposed pursuant to R.C.

2947.23, i.e., costs of prosecution.” Id. at ¶ 15. R.C. 2947.23(A)(1)(a) provides that

“[i]n all criminal cases, including violations of ordinances, the judge or magistrate shall

include in the sentence the costs of prosecution * * * and render judgment against the

defendant for such costs.” We have previously held that trial courts are obligated to

impose the costs of prosecution irrespective of a defendant’s ability to pay such costs.

See State v. Trimpe, 6th Dist. Wood No. WD-18-048,

, ¶ 29; State v.

Dotson, 6th Dist. Wood No. WD-15-060,

; State v. Tucker, 6th

Dist. Wood No. WD-16-063,

; State v. Hughes, 6th Dist. Wood No.

WD-16-056,

. Thus, we find that the trial court did not err in

imposing the costs of prosecution without finding that appellant is able to pay such costs.

{¶ 43} Besides the mandatory costs of prosecution, the trial court did not impose

any costs for which it must first determine whether appellant is able to pay. Therefore,

contrary to the argument raised by appellant in his brief, the trial court was not required

15. to make a determination of appellant’s ability to pay, and its imposition of costs was not

contrary to law.

{¶ 44} Accordingly, appellant’s second assignment of error is not well-taken.

III. Conclusion

{¶ 45} In light of the foregoing, the judgment of the Sandusky County Court of

Common Pleas is affirmed. The costs of this appeal are assessed to appellant under

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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