State v. Jeter

2019 Ohio 2391

• Court: Ohio Court of Appeals
• Decided: June 14, 2019
• Docket: 2018CA00145
• Status: Published

Opinion

[Cite as State v. Jeter, 2019-Ohio-2391.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2018CA00145 JENNIFER JETER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2018CR0920

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 14, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO RICK PITINII STARK COUNTY PROSECUTOR Chase Tower BY: RONALD MARK CALDWELL 101 Central Plaza South, Ste. 1000 110 Central Plaza South Canton, OH 44702 Canton, OH 44702 [Cite as State v. Jeter, 2019-Ohio-2391.]

Gwin, P.J.

{¶1} Defendant-appellant Jennifer Jeter [“Jeter”] appeals from her conviction and

sentence after a jury trial in the Stark County Court of Common Pleas on one count of

robbery, a felony of the third degree.

Facts and Procedural History

{¶2} On Friday, May 18, 2018, Katie Chandler, the store manager for the Family

Dollar store in Canton, Ohio opened the store as usual. After opening the store, Chandler

saw Jeter entered the store. Chandler told Jeter, "Jennifer Jeter you know you're not

allowed in here, please leave.” T. at 161.1 Jeter was known to have stolen from the store

numerous times, so she was not welcome. Jeter responded to Chandler, "Bitch, how do

you know my name." She walked past Chandler toward the back of the store where the

coolers were located. T. at 162. Chandler directed another store employee, Crystal

Dickson, to walk back to this part of the store to watch Jeter. Dickson saw Jeter stash

trash bags and candy into a shoulder bag. After Dickson reported this to Chandler,

Chandler told Dickson to go to the back door of the store to stand guard. Chandler waited

for Jeter at the front of the store. Chandler was hoping to stop Jeter from stealing anything

without having to call the police.

{¶3} Shortly afterwards, Jeter came to the front of the store, walking past the

checkout points and cash registers. According to Chandler, the following confrontation

took place between her and Jeter,

She gets in my face. And, then, it’s – I consider it a chest bump, she,

you know we’re women…And then she swings and I swing...

1 For clarity, the transcript of the September 10, 2018 jury trial will be referred to by volume and page number as “T.” Stark County, Case No. 2018CA00145 3

T. at 165. Chandler testified that she and Jeter touch chests. T. at 182. Jeter then swung

at Chandler and missed. T. at 183. A seven-minute altercation beginning inside the store

and spilling out into the parking lot then ensued. T. at 165-166. The incident was

captured by the store video surveillance system. State’s Exhibit 1.

{¶4} Jeter did not testify or present evidence.

{¶5} The trial court instructed the jury on the lesser-included offense of petty

theft. The jury, upon reviewing the instructions and the evidence presented at trial, found

Jeter guilty of the robbery charge. The trial court sentenced Jeter to a prison term of 36

months.

Assignment of Error

{¶6} Jeter raises one assignment of error,

{¶7} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE SUFFICIENCY

AND MANIFEST WEIGHT OF THE EVIDENCE.”

Law and Analysis

STANDARD OF APPELLATE REVIEW.

Sufficiency of the Evidence.

{¶8} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, Stark County, Case No. 2018CA00145 4

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

{¶9} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus: Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the 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.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio

St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency

we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if

believed, [the evidence] would convince the average mind of the defendant's guilt beyond

a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),

quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶31. We

will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could

not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,

430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶74.

ISSUE FOR APPEAL

A. Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of the

defendant's guilt on each element of the crimes beyond a reasonable doubt.” Stark County, Case No. 2018CA00145 5

{¶10} In her assignment of error, Jeter contends that her “Chest bump” was not a

use of force sufficient to support a conviction for robbery. Jeter contends that the store

manager initiated the physical confrontation.

{¶11} Jeter was convicted of Robbery. R.C. 2911.02(A)(3) provides,

(A) No person, in attempting or committing a theft offense or in

fleeing immediately after the attempt or offense, shall do any of the

following:

***

(3) Use or threaten the immediate use of force against another.

{¶12} “Force” is defined as “any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1).

{¶13} The Ohio Supreme Court has held:

The use or threat of immediate use of force element of the offense

of robbery * * * is satisfied if the fear of the alleged victim was of such a

nature as in reason and common experience is likely to induce a person to

part with property against his will and temporarily suspend his power to

exercise his will by virtue of the influence of the terror impressed.

State v. Davis, 6 Ohio St.3d 91, 451 N.E.2d 772 (1983), paragraph one of the syllabus.

{¶14} In State v. Hoskin the Court of Appeals noted,

Courts have also held that a defendant’s actions and demeanor may

support a finding of a threat of force. State v. Bentley, 69 Ohio App.3d 33,

36, 590 N.E.2d 21 (9th Dist.1990), citing State v. Carter, 29 Ohio App.3d

148, 150, 504 N.E.2d 469 (9th Dist.1985). The threat of violence, Stark County, Case No. 2018CA00145 6

compulsion, or constraint need not be direct and explicit. State v. Bush,

119 Ohio App.3d 146, 150, 694 N.E.2d 984 (2nd Dist.1997). With respect

to whether a criminal defendant charged with robbery has threatened an

immediate use of force, “evidence of whether the victim actually perceived

a threat is not necessary; evaluation of the nature of a threat is subject to

an objective, not subjective, test.” State v. Sumlin, 8th Dist. Cuyahoga No.

76261, 2000 WL 776986(June 15, 2000), citing Davis at 94, 451 N.E.2d

772; State v. Habtemariam, 103 Ohio App.3d 425, 429, 659 N.E.2d 850

(10th Dist.1995). The test for force or threat of force is based on the totality

of the circumstances. Habtemariam at 429, 659 N.E.2d 850.

8th Dist. Cuyahoga No. 107315, 2019-Ohio-1987, ¶39. This Court has recognized,

The use of force element is satisfied “if the fear of the alleged victim

was of such a nature as in reason and common experience is likely to

induce a person to part with property against his will and temporarily

suspend his power to exercise his will by virtue of the influence of the terror

impressed.” State v. Davis (1983), 6 Ohio St.3d 91, 451 N.E.2d 772. The

test for force is objective and relies on the totality of the circumstances.

State v. Habtemariam (1995), 103 Ohio App.3d 425, 659 N.E.2d 850. A

victim’s fear of harm must be objectively reasonable under the

circumstances. State v. Bush (1997), 119 Ohio App.3d 146, 694 N.E.2d

984.

State v. Trice, 5th Dist. Fairfield No. 12-CA-42, 2004-Ohio-2004, ¶16. A review of the

record in this case viewing the totality of the circumstances we find that the evidence Stark County, Case No. 2018CA00145 7

supports a finding under the objective test that Jeter used or threaten the immediate use

of force. The state presented evidence that Jeter refused all requests to put the

merchandise back and leave the store peaceably. She continued to put items in her purse

even when directly confronted by the store clerk. Dickson testified that Jeter got in her

face at which time Dickson left her alone. T. at 190-191; 193-194. Jeter told Chandler

“I’m not going to put it back. Fuck You!” T. at 165. She then bumped Chandler and

attempted to punch her.

{¶15} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Jeter had committed the crime of Robbery.

{¶16} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Robbery and, accordingly, there was sufficient evidence to

submit the charge to the jury and to support Jeter’s conviction.

Manifest weight of the evidence.

{¶17} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every Stark County, Case No. 2018CA00145 8

reasonable presumption must be made in favor of the judgment and the

finding of facts.

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶18} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In

other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–

Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th

Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24. Stark County, Case No. 2018CA00145 9

{¶19} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.” Id.

ISSUE FOR APPEAL.

B. Whether the jury court clearly lost their way and created such a manifest

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

{¶20} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. “While the trier of

fact may take note of the inconsistencies and resolve or discount them accordingly * * *

such inconsistencies do not render defendant’s conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996

WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although

the evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574 Stark County, Case No. 2018CA00145 10

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

{¶21} In the case at bar, the jury heard the witnesses, viewed the evidence and

viewed a video of the events as they occurred in real time. The jury further heard Jeter’s

arguments and explanations about her actions. Thus, a rational basis exists in the record

for the jury’s decision.

{¶22} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Jeter’s conviction is not against

the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears

to have fairly and impartially decided the matters before them. The jury was instructed

on the lesser theft offense. The jury heard the witnesses, evaluated the evidence, and

was convinced of Jeter’s guilt of the robbery offense. The jury neither lost his way nor

created a miscarriage of justice in convicting Jeter of Robbery.

{¶23} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime for which Jeter was convicted.

{¶24} Jeter’s First Assignments of Error is overruled. Stark County, Case No. 2018CA00145 11

{¶25} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Delaney, J., concur