State v. Tyus

2020 Ohio 103

• Court: Ohio Court of Appeals
• Decided: January 16, 2020
• Docket: 108270
• Status: Published

Opinion

[Cite as State v. Tyus, 2020-Ohio-103.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108270 v. :

D’ANGELO JAMAR TYUS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 16, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633607-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael Lisk and Michael Barth, Assistant Prosecuting Attorneys, for appellee.

Louis E. Grube, for appellant.

SEAN C. GALLAGHER, P.J.:

D’Angelo Jamar Tyus appeals his convictions for robbery, abduction,

and theft entered upon a jury verdict of guilt. The trial court imposed a three-year,

aggregate term of imprisonment. We affirm. Tyus and codefendant Myranda Hyde knew the victim. The three

were together at a pavilion behind a church in Parma Heights, Ohio, sharing an

alcoholic beverage. Surveillance video captured the entire encounter. According to

the victim, Tyus and Hyde were angered by comments the victim made earlier in the

day. After a brief period of conversation, Tyus and Hyde physically attacked the

victim for approximately 30 minutes. The assault was interspersed with Tyus and

Hyde rummaging through the victim’s possessions and concluded with the

codefendants walking away after Tyus took a cigarette or other similar tobacco

product from the victim’s possession. After the attack ceased, the victim’s cell

phone, pocket change, and some of his tobacco products were determined to be

missing. Hyde was found in possession of the victim’s cell phone and had used it to

harass the victim and his friend following the attack.

During the jury’s deliberation, the jury foreman asked the trial court

for clarification on the definition of robbery that was provided in the general

instructions. The trial court provided a written response, but it does not appear from

the record that the parties were offered an opportunity to review the response before

it was sent to the jury. The jury was then in possession of the original instructions

and the trial court’s written response in continuing its deliberation.

In this appeal, Tyus claims that the trial court erred by giving an

incorrect and misleading instruction on the elements of robbery that ultimately

confused the jury. It is well settled that “[j]ury instructions must ‘correctly and

completely state the law.’” State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114

N.E.3d 1092, ¶ 123, quoting Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-

1189, 843 N.E.2d 1170, ¶ 32. In reviewing jury instructions, it must be decided “not

only whether the instruction at issue is correct in the abstract but also whether it is

potentially misleading.” Id., citing State v. White, 142 Ohio St.3d 277, 2015-Ohio-

492, 29 N.E.3d 939, ¶ 52. If an appellate court concludes that an instruction is

ambiguous, it must then be determined “‘whether there is a reasonable likelihood

that the jury has applied [it] in a way’ that violates the Constitution.” Id., quoting

Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and Boyde

v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). No single

instruction should be reviewed in isolation. Id. The particular jury instruction being

challenged must be viewed “in the context of the overall charge.” Id., citing State v.

Madrigal, 87 Ohio St.3d 378, 396, 2000-Ohio-448, 721 N.E.2d 52.

The jury was initially instructed that before it could find Tyus guilty

of robbery, it must be found, beyond a reasonable doubt, that Tyus “while

attempting or committing a theft offense, or in fleeing immediately after a theft

attempt or offense, * * * did inflict or attempt to inflict or threaten to inflict physical

harm” on the victim. (Emphasis added.) In seeking clarification, the jury asked the

trial court the following question: “[i]n the definition [of robbery], does it mean the

‘attempting or committing a theft offense must come [first], or be the primary aim of the defendant? Or [sic] does it include the act at ‘any point’ during the

altercation?” The trial court offered the following response:

[t]he statute permits you to consider alternate methods for the physical harm element — i.e., inflicting, attempting to inflict or threatening to inflict physical harm — and alternate methods for the temporal requirement — i.e., during or in fleeing immediately after. The statute does not require you to decide the “primary aim” or that events happened in any particular order. It only requires that you must find all elements beyond a reasonable doubt.

(Emphasis added.)

Tyus claims that the jury was permitted to conclude that the theft

occurred as a mere afterthought to the undisputed infliction of physical harm that

occurred throughout the victim’s ordeal. According to Tyus, the theft of the tobacco

product as he was departing did not occur concurrent with the infliction of physical

harm and the jury’s request for clarification demonstrated confusion as to the proper

elements of the crime.

The incident in this case was not as fleeting as crimes of this nature

tend to be. Instead, the defendants assaulted and restrained the victim for a

prolonged period of time, and at the same time they physically assaulted the victim

while rummaging through his belongings with Tyus asking for everything the victim

had on him. At one point during the prolonged attack, the victim’s cell phone and

tobacco products were stolen. Tyus’s appeal primarily focuses on the theft of the

tobacco product to the exclusion of the missing cell phone. This is for good reason.

Standing alone, the theft of the tobacco product immediately before Tyus’s

departure closely resembles the facts of State v. Ballard, 14 Ohio App.3d 59, 469 N.E.2d 1334 (8th Dist.1984). In Ballard, the defendant took the victim’s purse but

promised to return it. The defendant found a firearm inside the purse, removed the

weapon and returned the purse. According to Ballard, and other similar cases,

because the theft occurred after the force was exerted, the theft did not occur

contemporaneously with the alleged attempt to inflict physical harm on the victim.

But in this case, there is a distinguishing fact — the theft of the cell phone occurred

during the infliction of physical harm.

Regardless, when the trial court’s response to the jury’s request for

clarification is read in the context of the overall instructions, the jury’s question was

not focusing on the temporal relationship between the harm and the theft element

of robbery. Instead, the jury was asking for clarification on whether the defendants

had to form the intent to commit a theft offense before the physical violence began

or whether the theft offense must be the primary factor behind the violence. The

trial court correctly instructed that the motive for the physical harm and a

premeditated intent to commit a theft offense are not part of the statutory elements

of robbery. That statement accurately reflects the law.

With respect to the temporal connection between the inflicting harm

theft elements, the jury was initially told that the robbery statute requires the state

to prove beyond a reasonable doubt, that the defendants “while attempting or

committing a theft offense, or in fleeing immediately after a theft attempt or offense,

* * * did inflict or attempt to inflict or threaten to inflict physical harm” on the victim.

(Emphasis added.) See, e.g., Ballard at syllabus. Thus, the jury was properly instructed that the infliction of harm must occur while the theft offense is being

committed or while the defendant is fleeing the scene of the crime. The trial court’s

written response to the jury’s mid-deliberation question further reinforced the

correct temporal connection between the inflicting physical harm and the theft

elements: according to the trial court’s responsive instruction to the jury, the

inflicting physical harm must occur “during or in fleeing immediately after” the theft

offense.

The jury instructions and the trial court’s response to the jury’s

request for clarification accurately and completely stated the law, and it cannot be

concluded that the trial court improperly instructed the jury to eliminate the

temporal connection between the theft and physical harm elements of robbery. Tyus

has not demonstrated any error with the instructions.

For a similar reason, Tyus’s second claim, that his conviction for

robbery is based on insufficient evidence, is without merit.

A claim of insufficient evidence raises the question whether the

evidence is legally sufficient to support the verdict as a matter of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a

sufficiency challenge, “[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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

In order to substantiate the robbery charge in this case, the state must have demonstrated beyond a reasonable doubt that Tyus “in attempting or committing a

theft offense or in fleeing immediately after the attempt or offense, * * * [i]nflicted,

attempted to inflict, or threatened to inflict physical harm on another.”

R.C. 2911.02(A)(2).

According to Tyus, the state’s evidence solely demonstrated that a

theft was completed after he and Hyde had already assaulted the victim, and

therefore, the state failed to prove that Tyus inflicted the physical harm while

committing or attempting the theft offense. Tyus frames his argument based on his

confession of taking the tobacco products from the victim after the assault had

ceased and immediately before Tyus departed the scene. Tyus’s argument, however,

ignores the theft or attempted theft that occurred while Tyus and Hyde physically

assaulted the victim during the lengthy altercation.

The criminal conduct lasted for over 30 minutes. It is impossible to

segregate the defendants’ overall conduct into discrete acts. Both the physical attack

and the theft offense were ongoing through the entire encounter. Throughout the

incident, Tyus physically attacked the victim while rummaging through his personal

belongings and telling the victim he wanted everything the victim had. It is

reasonable to conclude that Tyus and Hyde were looking for something they

intended to steal — there is no evidence that either of the defendants had permission

to take anything from the victim after the defendants began assaulting the victim.

At one point, about halfway through the ordeal, the kneeling victim held his cell

phone as if he were attempting to show Tyus something. After that, the cell phone was stolen, and it was later discovered to be in Hyde’s possession. The victim did

not give either defendant permission to take the cell phone.

Thus, when all the evidence is considered in a light most favorable to

the state, it was demonstrated beyond a reasonable doubt that Tyus, while

attempting or committing a theft offense, inflicted physical harm on the victim.

There is sufficient evidence in support of the conviction irrespective of Tyus’s claim

that the stolen cigarette or other tobacco product could not substantiate the robbery

offense in and of itself.

In the final assignment of error, Tyus claims that there are errors in

the itemization of the costs of prosecution that was generated by the clerk of courts

after Tyus appealed his final entry of his convictions. That final entry contained a

generic reference to the trial court entering “judgment against the defendant in an

amount equal to the costs of this prosecution.”

“In all criminal cases, costs must be included in the sentencing entry.”

State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 19, citing

R.C. 2947.23(A). The responsibility for itemizing the costs of prosecution falls onto

the clerk of courts. Id., citing R.C. 2949.14. “[E]ven if the itemized bill is ready at

the time of sentencing, ‘the specific amount due is generally not put into a judgment

entry.’” Id., quoting State v. Glosser, 157 Ohio App.3d 588, 2004-Ohio-2966, 813

N.E.2d 1, ¶ 27 (5th Dist.) (Edwards, J., concurring). Consistent with that black-letter

law, the typical sentencing entry assesses unspecified costs, with the itemized bill generated at a later date. Id. The practice of generically imposing costs without the

itemization does not affect the finality of the final entry of conviction. Id.

This is because a “judgment for costs in a criminal case is a civil, not

a criminal, obligation, and may be collected only by the methods provided for the

collection of civil judgments.” Strattman v. Studt, 20 Ohio St.2d 95, 103, 253 N.E.2d

749 (1969); State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432,

¶ 11. Further, until the clerk attempts to collect or issues a certificate of judgment

upon the imposed costs, any attempt to challenge the itemization process is

generally deemed premature. State ex rel. West v. McDonnell, 139 Ohio St.3d 120,

2014-Ohio-1563, 9 N.E.3d 1030, ¶ 7; see also Abrams v. Fuerst, 5th Dist. Richland

No. 10-CA-146, 2011-Ohio-1641; State v. Murillo, 2d Dist. Montgomery No. 21919,

2008-Ohio-201, ¶ 3 (defendant’s appeal of the clerk’s attempt to collect court costs

four years after the final conviction was ripe for review); State v. Mamontov, 6th

Dist. Lucas No. L-06-1261, 2007-Ohio-1863, ¶ 2 (clerk was not permitted to collect

court costs over two years after the final conviction because the trial court waived

those costs in the final sentencing entry); see also State v. White, 103 Ohio St.3d

580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 15 (discussing several of the potential civil

remedies available for the clerk of courts to collect imposed court costs).

In this case, the statutorily required itemization of court costs was

completed after Tyus filed his notice of appeal. Tyus is not appealing the imposition

of court costs in general, i.e., his future ability to pay those costs, which must be

addressed in the direct appeal or within the court’s continuing jurisdiction under R.C. 2947.23(C). State v. Braden, Slip Opinion No. 2019-Ohio-4204, ¶ 30; see also

State v. Walker, 8th Dist. Cuyahoga No. 96305, 2011-Ohio-5270, ¶ 11; State v.

Pettway, 8th Dist. Cuyahoga No. 98836, 2013-Ohio-1348.

Tyus is challenging the itemization of the costs of prosecution that

occurred following the issuance of the final entry of conviction, and he is raising

these issues in the first instance with this court sitting in review of the final

conviction. Although Tyus refers to that itemization in his appellate briefing, it is

not part of the appellate record. As a result, we are unable to review the composition

of the final costs the clerk of courts is seeking to collect in order to determine

whether the specific portions Tyus is challenging comply with the relevant statutory

provisions. See State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, 966

N.E.2d 958, ¶ 126 (12th Dist.) (noting that any premature challenges of the

itemization process in the direct appeal is hampered by the lack of a record). The

final assignment of error is overruled. Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____ SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and RAYMOND C. HEADEN, J., CONCUR