State v. Powell

2024 Ohio 5122

Opinion

[Cite as State v. Powell, 2024-Ohio-5122.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2024-CA-8 : v. : Trial Court Case No. 23-CR-0488 : PAUL POWELL, JR. : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on October 25, 2024

MARY ADELINE R. LEWIS, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

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WELBAUM, J.

{¶ 1} Appellant Paul Powell, Jr. appeals from his conviction for robbery following a

jury trial in the Clark County Court of Common Pleas. In support of his appeal, Powell

contends that the jury’s verdict finding him guilty of felony theft (an offense which merged -2-

into his robbery conviction at sentencing) was not supported by sufficient evidence.

Powell also contends that the trial court’s order for him to pay $3,500 in restitution for the

victim’s economic loss was not supported by sufficient evidence. In addition, Powell

contends that the trial court erred by failing to make a determination on the record about

whether he was entitled to any jail-time credit. The State concedes error with regard to

Powell’s jail-time credit argument. For the reasons outlined below, we agree that the trial

court erred by failing to make a jail-time-credit determination; however, we find that both

of Powell’s sufficiency arguments lack merit. Therefore, the judgment of the trial court

will be affirmed in part and reversed in part, and the matter will be remanded to the trial

court for the purpose of holding a resentencing hearing that addresses jail-time credit.

Facts and Course of Proceedings

{¶ 2} On August 1, 2023, a Clark County grand jury returned an indictment

charging Powell with one second-degree-felony count of robbery and one fifth-degree-

felony count of theft. The charges stemmed from allegations that Powell offered to pay

the $3,500 asking price for a diamond ring that was for sale on Facebook Marketplace,

but that he only gave the owner of the ring an envelope containing a one-dollar bill when

they met in person to complete the transaction. It was also alleged that Powell ran over

the owner of the ring and the owner’s niece with his vehicle while he was in the process

of fleeing with the ring.

{¶ 3} Powell pled not guilty to the indicted charges and the matter proceeded to a

jury trial. During trial, the State presented testimony from the owner of the ring, the -3-

owner’ s niece, and the investigating police officers. The following is a summary of the

evidence that was elicited at trial.

{¶ 4} The owner of the diamond ring in question purchased the ring in 2021 from

JCPenney for $6,249.98. Photographs of the ring and its ring box showed price-tag

stickers listing the $6,249.98 purchase price. See State’s Ex. Nos. 3 and 4. The owner

purchased the ring as an engagement ring for his wife, who died of lung cancer a year

after they were married. Given his wife’s death and his need to pay for medical bills, the

owner of the ring asked his niece to help him sell the ring on the Internet via Facebook

Marketplace.

{¶ 5} Per her uncle’s request, the owner’s niece took pictures of the ring in question

and posted it for sale on Facebook Marketplace. Their initial asking price for the ring

was $4,000; however, after three months without any serious interest in the ring, they

reduced the price to $3,500. After the price had been reduced, on January 9, 2023, an

individual named Jacob Jordan, later identified as Powell, sent the owner’s niece a

message on Facebook asking if the ring was still available. The owner’s niece sent a

response indicating that the ring was still available and that she would only accept an in-

person, cash transaction. In response, Powell asked if he could meet her that day to

purchase the ring, and the niece agreed. Powell suggested they meet outside his

mother’s hair salon in Springfield, Ohio.

{¶ 6} At 6:30 p.m. the same day, the owner of the ring and his niece met Powell in

the parking lot of the Springfield hair salon to complete the transaction. The owner of

the ring and Powell parked their vehicles in the salon’s parking lot and met in the middle -4-

of their two vehicles. Powell asked the owner of the ring whether the ring was real, and

the owner responded that it was. Thereafter, Powell handed the owner an envelope and

the owner handed Powell the ring.

{¶ 7} After the exchange was made, Powell took off running and went back inside

his vehicle. As the owner of the ring began to open the envelope, Powell kept saying the

money was “in the fold.” Trial Tr. p. 149. While trying to tear the envelope open, the

owner of the ring walked in front of Powell’s vehicle with his niece by his side. Powell

then started his vehicle, told them to “move out of the way,” and began driving forward.

Id. at 113. In doing so, Powell knocked the owner of the ring and his niece onto the hood

of his vehicle. While on the hood of the vehicle, the owner of the ring got his fingers

stuck in the area between the vehicle’s hood and windshield wipers. As a result, the

owner of the ring was dragged 200 to 300 yards down the street before his fingers came

loose and he fell off the vehicle. The owner’s niece, who was dragged a shorter distance,

was able to free herself from the hood of Powell’s vehicle before it reached the street.

The envelope that Powell had given the owner of the ring fell onto the ground during the

incident. After the owner was hit, he realized that there was only blank paper and a one-

dollar bill inside the envelope. Both the owner of the ring and his niece sustained scrapes

to their feet and hands as a result of the incident. The owner of the ring also sustained

an abrasion on his stomach where the tire of Powell’s vehicle had rubbed against him as

he was being dragged down the street.

{¶ 8} After hearing the foregoing evidence, the jury deliberated and found Powell

guilty as charged. At sentencing, the trial court determined that Powell’s theft and -5-

robbery offenses were allied offenses of similar import that merged for sentencing. In

light of that decision, the State elected to have Powell sentenced for robbery. Thereafter,

the trial court sentenced Powell to an indefinite term of six to nine years in prison. The

trial court ordered Powell’s sentence to be served consecutively to a 12-month prison

term that Powell had received in Clark C.P. No. 23-CR-0461, and an eight-month prison

term that Powell had received in Clark C.P. No. 23-CR-0844. The trial court also ordered

Powell to pay $3,500 in restitution to the owner of the ring. Although Powell had been in

jail the entire time his case was pending, the trial court did not address whether Powell

was entitled to any jail-time credit at the sentencing hearing or include any reference to

jail-time credit in the judgment entry.

{¶ 9} Powell now appeals from his conviction, raising two assignments of error for

review.

First Assignment of Error

{¶ 10} Under his first assignment of error, Powell contends that the evidence was

insufficient for the jury to find him guilty of felony theft in violation of R.C. 2913.02(A)(1).

Upon review, we find his argument lacks merit.

{¶ 11} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2009-Ohio-525, ¶ 10

(2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380 (1997). “When reviewing a claim

as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing -6-

the evidence in a light most favorable to the state could have found the essential elements

of the crime proven beyond a reasonable doubt.” (Citations omitted.) State v. Dennis,

79 Ohio St.3d 421, 430 (1997). “The verdict will not be disturbed unless the appellate

court finds that reasonable minds could not reach the conclusion reached by the trier-of-

fact.” (Citations omitted.) Id.

{¶ 12} In this case, Powell is not arguing that the State failed to present sufficient

evidence of any of the essential elements of theft, i.e., that Powell knowingly obtained or

exerted control over the property of another with the purpose to deprive the owner of the

property without the owner’s consent. See R.C. 2913.02(A)(1). Rather, Powell argues

that the State’s evidence was insufficient for the jury to find that the value of the stolen

ring satisfied the $1,000 threshold for the offense to be considered a fifth-degree-felony,

as R.C. 2913.02(B)(2) provides, in relevant part, the following:

[A] violation of [R.C. 2913.02] is misdemeanor theft, a misdemeanor

of the first degree. If the value of the property or services stolen is one

thousand dollars or more and is less than seven thousand five hundred

dollars . . . a violation of [R.C. 2913.02] is theft, a felony of the fifth degree.

{¶ 13} Powell’s argument is flawed because the conviction from which he appeals

was for robbery, not felony theft. “[A] ‘conviction’ consists of a guilty verdict and the

imposition of a sentence or penalty.” (Emphasis in original.) State v. Whitfield, 2010-

Ohio-2, ¶ 12, citing State v. Gapen, 2004-Ohio-6548, ¶ 135 and State v. McGuire, 80

Ohio St.3d 390, 399 (1997). (Other citations omitted.) Therefore, merged counts, like

Powell’s felony theft offense, are not convictions. See State v. Worley, 2016-Ohio-2722, -7-

¶ 23 (8th Dist.).

{¶ 14} “ ‘When a trial court dispatches with a count through merger, any error in

the jury’s verdict on the merged count is rendered harmless beyond a reasonable doubt.’ ”

State v. Stargell, 2016-Ohio-5653, ¶ 57 (2d Dist.), quoting State v. Wolff, 2009-Ohio-2897,

¶ 70 (7th Dist.), citing State v. Powell, 49 Ohio St.3d 255, 263 (1990); accord State v.

Adkins, 2020-Ohio-3296, ¶ 8 (2d Dist.); State v. Rodgers, 2023-Ohio-734, ¶ 85 (2d Dist.).

Therefore, appellate courts do not review the evidence supporting the findings of guilt on

merged counts. See Worley at ¶ 23, citing State v. McKinney, 2008-Ohio-6522, ¶ 39

(10th Dist.) (only reviewing the sufficiency of the evidence for the crime for which the

sentence was imposed and not the counts merged into that crime); Rogers at ¶ 85

(explaining that this court did not need to consider all 20 counts for which the defendant

was found guilty, but only those counts for which the defendant received a sentence after

the counts were merged).

{¶ 15} Here, Powell was convicted of robbery in violation of R.C. 2911.02(A)(2),

which prohibits a person from inflicting or attempting to inflict physical harm on another

while “attempting or committing a theft offense or in fleeing immediately after[.]” Powell

concedes, and we agree, that robbery can be established via misdemeanor-level theft,

which does not require evidence of the stolen property’s value. See R.C. 2913.02(B)

and R.C. 2911.02(A). Therefore, the value of the ring in question was immaterial to

Powell’s robbery conviction. Because Powell is not challenging the sufficiency of the

evidence supporting his robbery conviction, and because any error pertaining to Powell’s

merged theft offense amounts to harmless error, Powell’s sufficiency of the evidence -8-

argument lacks merit.

{¶ 16} Under this assignment of error, Powell also tangentially argues that there

was insufficient evidence supporting the trial court’s order for him to pay $3,500 in

restitution for the victim’s economic loss. Powell has waived all but plain error for appeal

on that issue, as he did not challenge the amount of restitution at sentencing or request

a hearing on the matter. See State v. Donaldson, 2023-Ohio-234, ¶ 54 (2d Dist.) (“ ‘[a]

defendant who does not dispute an amount of restitution, request a hearing, or otherwise

object waives all but plain error in regards to the order of restitution.’ ”), quoting State v.

Snowden, 2019-Ohio-3006, ¶ 88 (2d Dist.), citing State v. Woods, 2016-Ohio-1103, ¶ 12

(2d Dist.). To show plain error, Powell must demonstrate that “an error occurred, that

the error was obvious, and that there is ‘a reasonable probability that the error resulted in

prejudice,’ meaning that the error affected the outcome of the [proceeding].” (Emphasis

deleted.) State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting State v. Rogers, 2015-Ohio-

2459, ¶ 22.

{¶ 17} With regard to restitution, the Supreme Court of Ohio has explained that:

R.C. 2929.18(A)(1) gives a sentencing court discretion to order

restitution but not in an amount greater than the amount of economic loss

suffered by the victim as a direct and proximate result of the commission of

the offense. The court may base the amount of restitution on an amount

recommended by the victim, the offender, a presentence investigation

report, estimates or receipts indicating the cost of repairing or replacing

property, and other information. Further, the statute mandates that the -9-

court must conduct a hearing if the offender, victim, or survivor disputes the

amount.

State v. Lalain, 2013-Ohio-3093, ¶ 3.

{¶ 18} This court has explained that: “ ‘[T]here must be competent, credible

evidence in the record to support the trial court’s order of restitution “to a reasonable

degree of certainty.” The amount of restitution requested should, if necessary, be

substantiated through documentary or testimonial evidence.’ ” State v. Hess, 2012-

Ohio-961, ¶ 35 (2d Dist.), quoting State v. Bender, 2005-Ohio-919, ¶ 10 (2d Dist.), quoting

State v. Hooks, 135 Ohio App.3d 746, 749 (10th Dist. 2000). “[A]s long as competent

and credible evidence was presented during trial upon which a restitution order could be

based, a separate restitution hearing may not be required.” State v. Lenard, 2018-Ohio-

3365, ¶ 72 (8th Dist.).

{¶ 19} “The testimony of a victim, if determined to be credible, is sufficient to

support a restitution order; no documentation is required to substantiate the victim’s

testimony.” State v. Graham, 2014-Ohio-4250, ¶ 57 (2d Dist.), citing State v. Dolphin,

2014-Ohio-3434 ¶ 29 (2d Dist.); State v. McClain, 2010-Ohio-6413, ¶ 34 (5th Dist.)

(“R.C.2929.18(A)(1) allows the trial court to rely upon the amount of restitution

recommended by the victim, and does not require written documentation.”); State v.

Bowman, 2009-Ohio-1281, ¶ 12 (2d Dist.) (“Documentary and/or testimonial evidence

must be introduced to demonstrate the victim’s economic loss.”).

{¶ 20} Here, the owner of the ring—the victim in this case—testified that he had

paid $6,249.98 for the ring in 2021 and that he had attempted to sell the ring in 2023 for -10-

$3,500. The owner of the ring also identified photographs showing price tags on the

ring’s box, which listed the purchase price as $6,249.98. The testimony of the owner’s

niece also established that Powell had agreed to pay $3,500 for the ring. Because the

trial court was free to base its order of restitution on the victim’s testimony, we find no

error, let alone plain error, with regard to the amount of restitution ordered.

{¶ 21} Powell’s first assignment of error is overruled.

Second Assignment of Error

{¶ 22} Under his second assignment of error, Powell contends that the trial court

erred by failing to make a determination on the record about whether he was entitled to

any jail-time credit. The State concedes error and we agree that the trial court erred by

failing to make a jail-time-credit determination.

{¶ 23} “When a defendant is incarcerated prior to sentencing, ‘he must be given

credit on the sentence . . . imposed for all periods of actual confinement on that charge.’ ”

State v. Clark, 2024-Ohio-751, ¶ 7 (2d Dist.), quoting State v. Russell, 2015-Ohio-3373,

¶ 37 (2d Dist.), citing State v. Coyle, 2010-Ohio-2130, ¶ 5 (2d Dist.). “It is the duty of the

trial judge to determine the amount of jail-time credit to which a prisoner is entitled.”

State v. Williams, 2018-Ohio-1297, ¶ 14 (8th Dist.), citing State ex rel. Rankin v. Ohio

Adult Parole Auth., 2003-Ohio-2061, ¶ 7; R.C. 2929.19(B)(2)(g)(i). “[T]he trial court’s

obligation in calculating jail-time credit is limited to calculating the total number of days

the defendant was confined prior to sentencing.” State v. Dearmond, 2022-Ohio-3252,

¶ 13 (2d Dist.). -11-

{¶ 24} More specifically, “Ohio Adm.Code 5120-2-04(B) provides that the trial

court is required to determine ‘the amount of time the offender served locally before being

sentenced’ and ‘must make a factual determination of the number of days credit to which

the offender is entitled by law and include this information within the sentencing entry[.]’ ”

Clark at ¶ 7, quoting Ohio Adm.Code 5120-2-04(B). In contrast, “it is the duty of the Ohio

Department of Rehabilitation and Correction [‘ODRC’] to reduce the offender’s sentence

‘by the number of days the offender was confined as a result of the offense, between the

date of the sentencing entry and the date committed to the [ODRC.]’ ” Id., quoting Ohio

Adm.Code 5120-2-04(A); R.C. 2967.191. As a result, the calculation of the total number

of days a defendant was confined “must be present in the sentencing entry so the ODRC

can properly apply credit to any prison sentence.” State v. Gates, 2022-Ohio-1666, ¶ 8

(8th Dist.), citing Williams at ¶ 14, R.C. 2929.19(B)(2)(g)(i), R.C. 2949.12, and R.C.

2967.191.

{¶ 25} Upon review, the record establishes that Powell was confined in jail during

the entire pendency of his case. Based on the aforementioned requirements, we find

that the trial court was obligated to calculate Powell’s jail-time credit at the time of

sentencing, notify Powell of the number of days of jail-time credit that he was to receive,

and memorialize that information in the judgment entry. See Clark at ¶ 8. In this case,

the trial failed in all those respects. Accordingly, Powell’s argument is well taken.

{¶ 26} Powell’s second assignment of error is sustained. -12-

Conclusion

{¶ 27} Having overruled Powell’s first assignment of error and sustained his

second assignment of error, the judgment of the trial court is affirmed in part and reversed

in part, and the matter is remanded to the trial court for resentencing to address jail-time

credit.

EPLEY, P.J. and TUCKER, J., concur.