State v. Tillison

2019 Ohio 1395

• Court: Ohio Court of Appeals
• Decided: April 15, 2019
• Docket: 18AP0047
• Status: Published

Opinion

[Cite as State v. Tillison, 2019-Ohio-1395.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 18AP0047

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MARCUS D. TILLISON COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO Appellant CASE No. 2016 CRC-I 000371

DECISION AND JOURNAL ENTRY

Dated: April 15, 2019

CALLAHAN, Judge.

{¶1} Appellant, Marcus Tillison, appeals his convictions for aggravated robbery and

robbery. This Court affirms.

I.

{¶2} On October 24, 2016, a man contacted Wooster Taxi, LLC to arrange for

transportation from the Buehler’s parking lot in Wooster. The man instructed the driver to drive

to Orrville then gave directions that led to a dead-end street. When the taxi reached its

destination, the man stole cash from the driver and fled on foot. After calling the cell phone

number from which the ride had been requested several times, the driver contacted the Orville

Police Department to report the crime and drove to the police station. Police officers used a

phone number provided by the driver to identify Mr. Tillison as a suspect, and the driver selected

his picture from a photo array. 2

{¶3} Mr. Tillison was charged with aggravated robbery in violation of R.C.

2911.01(A)(1) and robbery in violation of R.C. 2911.02(A)(1), R.C. 2911.02(A)(2), and R.C.

2911.02(A)(3). A jury found him guilty of all charges and, after merging the robbery

convictions with the aggravated robbery conviction for purposes of sentencing, the trial court

sentenced Mr. Tillison to a seven-year prison term. Mr. Tillison filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1

APPELLANT’S CONVICTIONS FOR AGGRAVATED ROBBERY, R.C. 2911.01(A)(1); ROBBERY, R.C. 2911.02(A)(1); ROBBERY, R.C. 2911.02(A)(2); AND ROBBERY, R.C. 2911.02(A)(3), WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶4} Mr. Tillison’s first assignment of error argues that his convictions are based on

insufficient evidence. This Court does not agree.

{¶5} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt. Id.

{¶6} Mr. Tillison’s first argument is that his conviction for robbery in violation of R.C.

2911.02(A)(1) and his conviction for aggravated robbery are supported by insufficient evidence

because the State did not prove that he used a deadly weapon in commission of the offenses. 3

{¶7} R.C. 2911.02(A)(1) provides that “[n]o person, in attempting or committing a

theft offense * * * shall * * * [h]ave a deadly weapon on or about the offender’s person or under

the offender’s control.” Similarly, R.C. 2911.01(A)(1) provides that “[n]o person, in attempting

or committing a theft offense * * * shall * * * [h]ave a deadly weapon on or about the offender’s

person or under the offender’s control and either display the weapon, brandish it, indicate that

the offender possesses it, or use it[.]” For purposes of both R.C. 2911.02(A)(1) and R.C.

2911.01(A)(1), the term “deadly weapon” is defined by R.C. 2923.11(A) as “any instrument,

device, or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon.” See R.C. 2911.02(C)(1) and R.C.

2911.01(D)(1).

{¶8} “[A] knife is not presumed to be a deadly weapon, even if it is concealed.”

Columbus v. Dawson, 28 Ohio App.3d 45, 46 (10th Dist.1986), citing Columbus v. Davis, 10th

Dist. Franklin No. 75AP-624, 1976 WL 189643 (May 6, 1976) and State v. Colston, 10th Dist.

Franklin Nos. 77AP-734 and 77AP-735, 1978 WL 216660 (Feb. 16, 1978). For purposes of R.C.

2923.11, the State must therefore prove beyond a reasonable doubt “either (1) that the knife was

designed or specifically adapted for use as a weapon, or (2) that the defendant possessed, carried,

or used the knife as a weapon.” State v. Cathel, 127 Ohio App.3d 408, 412 (9th Dist.1998),

citing Dawson at 46. Circumstantial evidence that is relevant to determining whether a knife was

possessed, carried or used as a weapon includes the physical characteristics of the knife at issue;

the reasons that the defendant articulated for carrying the knife, if any; evidence that the

defendant possessed the knife for a purpose commonly associated with it; and the manner in

which the defendant possessed the knife. See State v. Workman, 84 Ohio App.3d 534, 536 (9th

Dist.1992). 4

{¶9} In this case, the taxi driver testified that when he requested the fare, Mr. Tillison

“was demanding my money[,]” and he noted that Mr. Tillison’s voice was “aggressive.” The

driver recalled that he could tell that Mr. Tillison was serious from the tone of his voice, and he

testified that he clearly saw a knife blade protruding from Mr. Tillison’s sleeve when he

demanded the money. The driver also noted that the incident occurred near midnight on a dead-

end street. This testimony that Mr. Tillison carried the knife in his sleeve in a manner that

displayed it as he demanded money from the driver in a dark location is sufficient for a jury to

reasonably conclude that Mr. Tillison “possessed, carried, or used the knife as a weapon.”

Cathel at 412.

{¶10} Mr. Tillison’s second argument is that his convictions for robbery in violation of

R.C. 2911.02(A)(2) and R.C. 2911.02(A)(3) are supported by insufficient evidence because the

State did not prove that he “harmed, attempted to harm, threatened to harm, used force against,

or threatened to use force against” the taxi driver.

{¶11} R.C. 2911.02(A)(2) provides that “[n]o person, in attempting or committing a

theft offense * * * shall * * * [i]nflict, attempt to inflict, or threaten to inflict physical harm on

another[.]” The term “Physical harm” includes “any injury * * * regardless of its gravity or

duration.” R.C. 2901.01(A)(3). An implied threat of physical harm is sufficient to support a

conviction under R.C. 2911.02(A)(2), and “[i]t is the very act of * * * indicating possession[] or

using the weapon that constitutes the threat to inflict harm because it intimidates the victim into

complying with the command to relinquish property without consent.” State v. Evans, 122 Ohio

St.3d 381, 2009-Ohio-2974, ¶ 23. “One cannot display, brandish, indicate possession of, or use a

deadly weapon in the context of committing a theft offense without conveying an implied threat

to inflict physical harm.” Id. Testimony that a defendant communicated that he had a weapon in 5

connection with a demand for money “permits a reasonable inference of a threat of physical

harm, which is sufficient for R.C. 2911.02(A)(2).” State v. Ellis, 10th Dist. Franklin No. 05AP-

800, 2006-Ohio-4231, ¶ 7. In addition, a victim’s testimony regarding fear that a defendant

would cause physical harm if the victim did not comply indicates that force was threatened under

R.C. 2911.02(A)(2). See State v. Holliday, 6th Dist. Lucas No. L-15-1264, 2017-Ohio-2581, ¶

10. See also State v. Hodges, 9th Dist. Medina No. 15CA0056-M, 2016-Ohio-5461, ¶ 19-20.

{¶12} The taxi driver noted that a knife blade was visible in Mr. Tillison’s sleeve when

he extended his hand and demanded money, and the driver testified that fear motivated by the

sight of the knife compelled him to give Mr. Tillison the money that he was carrying. This

testimony was sufficient to establish a threat to cause physical harm for purposes of R.C.

2911.02(A)(2).

{¶13} R.C. 2911.02(A)(3) provides that “[n]o person, in attempting or committing a

theft offense * * * shall * * * [u]se or threaten the immediate use of force against another.”

“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).

{¶14} For purposes of R.C. 2911.01(A)(3), the element of force is established “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 (1983), paragraph one of the syllabus. Force is evaluated under an objective standard. Id. at

93-94. In other words, “evidence of whether the victims 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, *2, citing Davis at 94. See 6

also State v. Smith, 9th Dist. Summit No. 27389, 2015-Ohio-2842, ¶ 18. The actions and

demeanor of a defendant may support the conclusion that force was threatened. Smith at ¶ 18.

{¶15} The taxi driver characterized Mr. Tillison’s voice as “aggressive” and noted that

he was certain from Mr. Tillison’s tone that his demand was serious. As mentioned above, Mr.

Tillison demanded money from the driver as he demonstrated that he carried a knife in his

sleeve. This evidence of Mr. Tillison’s demeanor, in conjunction with the testimony that he

displayed a knife while making a demand for money, is of a character that would be “likely to

induce a person to part with property against his will[.]” Davis at paragraph one of the syllabus.

The State, therefore, produced sufficient evidence that Mr. Tillison threatened the immediate use

of force against the taxi driver as prohibited by R.C. 2911.02(A)(3).

{¶16} Mr. Tillison’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

APPELLANT’S CONVICTIONS FOR AGGRAVATED ROBBERY, R.C. 2911.01(A)(1), AND ROBBERY, R.C. 2911.02(A)(1), WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶17} Mr. Tillison’s second assignment of error argues that his convictions for

aggravated robbery and for robbery in violation of R.C. 2911.02(A)(1) are against the manifest

weight of the evidence because the taxi driver’s testimony that Mr. Tillison used a deadly

weapon was not credible.

{¶18} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and 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. 7

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Otten at 340,

citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶19} In support of this assignment of error, Mr. Tillison points to alleged

inconsistencies between the taxi driver’s previous statements and his testimony and to aspects of

the driver’s account that, in Mr. Tillison’s estimation, defy common sense. Mr. Tillison argues

that the driver testified that he could not see anything but the tip of the knife but, in a statement

to police, testified that the knife had a “rounded bottom” and was “silver in color.” The driver’s

recorded verbal statement was not admitted into evidence at trial. His written statement,

however, was consistent with his testimony that he saw the tip of a knife, but not any part of the

handle. The officer who took his written statement also confirmed that the driver could not

describe the handle because it was tucked into Mr. Tillison’s sleeve and that the driver did not

specify which hand held the knife.

{¶20} The driver also acknowledged at trial that he did not tell the police at the time of

the incident that he attempted calls to the phone number from which Mr. Tillison called him, but

he also testified that he did provide that information to police at a later date. Sergeant Cory

Seiler of the Orville Police Department testified that the driver volunteered the information

during a follow-up interview when asked an open-ended question about whether there was

anything else that he needed to tell police about the incident. According to Sergeant Seiler’s

recollection, the driver provided the same rationale for calling Mr. Tillison’s phone number

during that interview that he articulated at trial: that he was unsure whether the call had been

from a telephone using a “spoofing” application that would mimic an incoming call from a

different device. 8

{¶21} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest

weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175.

Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the

best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No.

18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-

Ohio-3296, ¶ 15. Given the evidence in this case, this Court cannot conclude that this is the

exceptional case in which the evidence weighs heavily against the convictions.

{¶22} Mr. Tillison’s second assignment of error is overruled.

III.

{¶23} Mr. Tillison’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 9

Costs taxed to Appellant.

LYNNE S. CALLAHAN FOR THE COURT

TEODOSIO, P. J. CARR, J. CONCUR.

APPEARANCES:

MATTHEW J. MALONE, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.