State v. Stevens

2013 Ohio 5218

• Court: Ohio Court of Appeals
• Decided: November 27, 2013
• Docket: C-130278
• Status: Published

Opinion

[Cite as State v. Stevens, 2013-Ohio-5218.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130278 TRIAL NO. B-1208390 Plaintiff-Appellant, :

vs. : O P I N I O N.

RAYMOND STEVENS, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 27, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Christine Jones and Angela Glaser, Assistant Hamilton County Public Defenders, for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

F ISCHER , Judge.

{¶1} Following a bench trial, defendant-appellant Raymond Stevens was

found guilty of the robbery of Brooke Huerkamp. The trial court sentenced him to

three years in prison. Stevens now appeals. In three assignments of error, he argues

that his robbery conviction is against the weight and sufficiency of the evidence and

that the trial court erred in imposing a three-year prison term. Finding none of his

arguments meritorious, we affirm the trial court’s judgment.

The Robbery

{¶2} At trial, Huerkamp testified that she was walking from one bar to

another around 1:30 a.m. when Stevens approached her in the parking lot of a local

business and asked her for a cigarette. She was alone and didn’t want any trouble,

so she gave Stevens a cigarette. She talked with Stevens for approximately five

minutes. After Stevens had smoked his cigarette, he punched Huerkamp under her

left eye and took her wallet. Huerkamp ran after Stevens and punched him. Stevens

then slid her wallet across the ground. When Huerkamp looked inside her wallet, all

her cash was gone. She immediately called 911 and reported the incident.

{¶3} The tape of Huerkamp’s 911 call was played at trial. On the tape,

Huerkamp states at one point that she “went to chase after him and he punched me

in the face and ran down Findlay. But [he] took the money out of my wallet.” Then

she says, “He punched me in the face and took the money out of my wallet.” She

later states that Stevens “was in her wallet.” She punched him and said, “No, just

leave my wallet. Get off my wallet. And I punched him in the face. I said leave my

wallet and got the cash out of it and I punched him in the parking lot. * * * I

punched him and then he punched me back.”

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{¶4} During cross-examination at trial, Huerkamp was asked if she

punched Stevens first. She stated that Stevens had punched her first, grabbed her

wallet, and ran. She said her statement to the 911 operator that she had punched

Stevens first and that he had then punched her back, would have been false.

{¶5} The state and Stevens’s counsel stipulated that the police officer

who responded to the scene would have testified that Huerkamp had identified

Stevens as the perpetrator of the robbery shortly after the offense and that the officer

had not noticed any injuries to Huerkamp.

{¶6} Stevens also testified at the trial. He provided a different version of

events. Stevens testified that Huerkamp was so drunk that she had had difficulty

walking. He stated that he had approached Huerkamp and they had smoked a joint

together. Huerkamp had then offered to give him six $1 bills, which he had declined.

He had then grabbed Huerkamp’s wallet from her purse, had taken the money from

inside her wallet, and had tossed it back to her. He started walking away.

Huerkamp had then run after him, hitting him in the head multiple times. He

denied punching Huerkamp in the face.

Weight and Sufficiency of the Evidence

{¶7} In his first and second assignments of error, Stevens challenges the

weight and sufficiency of the evidence adduced to support his robbery conviction.

{¶8} When a defendant claims that a conviction is supported by

insufficient evidence, this court must review the evidence in the light most favorable

to the prosecution and determine whether any rational trier of fact could have found

all the elements of the crime proved beyond a reasonable doubt. State v. Eley, 56

Ohio St.2d 169, 383 N.E.2d 132 (1978). When a defendant claims that his conviction

is against the manifest weight of the evidence, this court must weigh the evidence

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and the credibility of the witnesses to determine if the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed.

Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{¶9} Stevens argues that the state failed to prove that he had “inflicted

or attempted to inflict any physical harm” on Huerkamp while committing a theft

offense or while fleeing immediately after committing a theft offense. See R.C.

2911.02(A)(2). We disagree. Huerkamp’s trial testimony, if believed, was sufficient

to prove that Stevens had inflicted physical harm on her while committing the theft

offense. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

While Stevens testified that he did not punch Huerkamp, the trial court was free to

reject his testimony. Given our review of the record, we cannot conclude that

Huerkamp’s testimony was so unreliable or unworthy of belief that the trial court lost

its way and created a manifest miscarriage of justice in finding Stevens guilty. We,

therefore, overrule Stevens’s first and second assignments of error.

Three-Year Prison Sentence

{¶10} In his third assignment of error, Stevens challenges his three-year

prison sentence. He argues that the trial court abused its discretion in imposing

more than the minimum prison term for the robbery offense because Huerkamp did

not suffer any significant physical harm, and that the trial court failed to make the

proper findings before imposing his sentence.

{¶11} But after the effective date of 2011 Am.Sub.H.B. 86, we no longer

review sentences under an abuse of discretion standard. State v. White, 1st Dist.

Hamilton No. C-130114, 2013-Ohio-4225, ¶ 9. Rather, we apply the standard

articulated in R.C. 2953.08(G)(2). “Under R.C. 2953.08(G)(2), we may only modify

or vacate [a defendant’s] sentence if we ‘clearly and convincingly find’ that either (1)

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the record does not support the mandatory sentencing findings or (2) that the

sentence is ‘otherwise contrary to law.’ ” Id. at ¶ 11.

{¶12} Stevens does not argue what findings the trial court failed to make.

This court has repeatedly held that R.C. 2929.11 and 2929.12 are not “fact finding”

statutes, and that we may presume a trial court has considered these factors absent

an affirmative demonstration by a defendant to the contrary. State v. Kennedy, 1st

Dist. Hamilton No. C-120337, 2013-Ohio-4221, ¶ 118. The record, moreover, reflects

that the trial court considered Stevens’s extensive prior criminal history, and that his

three-year prison sentence was within the range of prison sentences for a second-

degree felony. As a result, we cannot clearly and convincingly find that his sentence

is contrary to law. We, therefore, overrule his third assignment of error and affirm

the judgment of the trial court. Judgment affirmed.

HENDON, P.J, and CUNNINGHAM, J., concur.

Please note: The court has recorded its own entry this date.