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State v. Walton , 2011 Ohio 5662 ( 2011 )


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  • [Cite as State v. Walton, 
    2011-Ohio-5662
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96133
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    NICHOLAS WALTON
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-534462
    BEFORE: Jones, P.J., Cooney, J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED:                     November 3, 2011
    ATTORNEY FOR APPELLANT
    John F. Corrigan
    19885 Detroit Road, #335
    Rocky River, Ohio 44116
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Vincent I. Pacetti
    Assistant Prosecuting Attorney
    The Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    LARRY A. JONES, P.J.:
    {¶ 1} Defendant-appellant, Nicholas Walton, appeals his aggravated robbery
    conviction.   We affirm.
    I
    {¶ 2} In 2009, Walton was charged with aggravated robbery and kidnapping with
    one- and three-year firearm specifications.   The charges stemmed from the May 15,
    2009 robbery of Becker’s Donuts in Cleveland.
    {¶ 3} Walton waived his right to a jury trial, and the case proceeded to a bench
    trial.   At the close of the state’s case, Walton made a Crim.R. 29 motion for acquittal,
    which was denied. Walton testified and at the conclusion of his testimony, renewed his
    Crim.R. 29 motion; the motion was again denied. The court found Walton guilty of both
    counts and the firearm specifications, but merged the aggravated robbery and kidnapping
    charges as allied offenses.    The state elected to proceed to sentencing on the aggravated
    robbery charge.      The trial court sentenced Walton to a nine-year prison term.
    {¶ 4} Walton raises the following assignments of error for our review:
    {¶ 5} “I.   The trial court erred in shifting the burden of persuasion to appellant to
    prove alibi.
    {¶ 6} “II. Appellant’s conviction for robbery was against the manifest weight of
    the evidence.”
    II
    {¶ 7} The state presented the testimony of Janice Schebek, who was the sole
    employee working at the donut shop at the time of the robbery. Schebek testified that on
    the day of the robbery, Walton came into the shop for donuts, but the shop was sold out.
    He asked if there were any cookies; there were not.       Schebek told him that there would
    not be any baked goods until the next morning. Walton left the shop.
    {¶ 8} Approximately ten minutes later, Walton returned to the shop, brandished a
    gun, and demanded the money from the cash register.         Walton jumped over the counter
    and took the money out of the register himself. He had the gun in his hand throughout
    the robbery. Walton and Schebek were the only two people in the shop during the
    incident.
    {¶ 9} According to Schebek, Walton had been in the shop before the day of the
    incident.    At one point, Schebek testified that she believed Walton had been there a
    “week or so earlier.”    Later in Schebek’s testimony, however, she clarified that she was
    “not exactly sure how long” ago Walton had been in the shop, but she had previously seen
    him there.
    {¶ 10} After the robbery, Schebek saw Walton run across the street where another
    man was “standing on the corner.”         When the police arrived on the scene, Schebek
    provided a physical description of the robber and his attire. Schebek later identified
    Walton from a photo array. She also identified him in court as the robber. She testified
    that she was “100 percent sure” that Walton was the perpetrator.         The robbery was
    captured on the shop’s security camera.
    {¶ 11} Detective Michael Kitchen of the Cleveland Police Department investigated
    the case.    He obtained the recording of the robbery and released it to the media with the
    hope that somebody would come forward with information on the perpetrator. After the
    recording aired on the news, two people identified Walton as the robber.
    {¶ 12} Detective Kitchen attempted to find more information on Walton and a
    “connection” to the shop’s neighborhood, but hit a “dead end.”      The detective testified
    that Walton’s last known addresses were for residences in Columbus, Ohio and Euclid,
    Ohio.    In July 2009, he composed a photo array that included Walton’s photo and
    presented it to Schebek, who “immediately” identified Walton as the perpetrator.
    {¶ 13} Evidence presented at trial demonstrated that Walton had been released
    from juvenile detention on May 12, 2009.
    {¶ 14} Walton testified that when he was released from detention on May 12, he
    had no place to go; he did not know where his mother resided, and he had previously been
    in the custody of Youth Services. So he spent that night on the “borderline of Euclid
    and Cleveland,” and arranged for a friend from Columbus to come to Cleveland the next
    morning (May 13) to get him.      The friend picked him up as arranged, and they drove
    back to Columbus that day where he stayed until the end of June.        Walton denied ever
    going to the donut shop or committing the robbery.
    {¶ 15} Walton further testified that he had several tattoos.     He had one on each
    hand and another on the right side of his neck.
    III
    {¶ 16} For his first assigned error, Walton contends that the trial court shifted the
    burden of persuasion to him to prove his alleged alibi. Specifically, Walton relies on the
    following comment made by the trial court in announcing its decision: “And given the
    circumstances here and the certainty of Miss [Schebek’s] testimony, I think that the
    Defendant has failed to overcome the strength of her identification.”
    {¶ 17} An alibi is not an affirmative defense, therefore, the burden of persuasion is
    not on the defendant, but remains with the state. State v. Robinson (1976), 
    47 Ohio St.2d 103
    , 108, 
    351 N.E.2d 88
    . An alibi is an acquitting factor in a case, but it is not the
    sole acquitting factor. State v. Sorrels (1991), 
    71 Ohio App.3d 162
    , 167, 
    593 N.E.2d 313
    . Therefore, any doubt arising from a defendant’s alibi goes to the weakness of the
    state’s case.   
    Id.
       If the doubt created either by the alibi, or the weakness of the state’s
    case, or both, rises to the level of reasonable doubt as to a defendant’s guilt, an acquittal
    is required. 
    Id.,
     citing State v. Childs (1968), 
    14 Ohio St.2d 56
    , 64, 
    236 N.E.2d 545
    .
    {¶ 18} When the statement Walton complains about is read in toto with the trial
    court’s comments, we find that the court held the state to its burden of proof and did not
    improperly shift the burden to Walton. Specifically, the court stated that the “standard
    of proof is beyond a reasonable doubt.”      The court noted that there “are some questions
    that remain[,]” but what it had to determine was “whether they amount to residual doubt
    or reasonable doubt.”      “And based upon the totality of the evidence, I will find the
    Defendant guilty as charged * * *.”
    {¶ 19} The trial court, as the trier of fact here, was free to believe the testimony
    offered by the state and reject that of the defense. State v. Cotton (Dec. 6, 1996),
    Montgomery App. No. 15115; State v. Antill (1964), 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
    .   “[A]libi testimony is weighed along with all of the other evidence offered.” In
    the Matter of K.E.J., Sandusky App. No. S-08-026, 
    2009-Ohio-1818
    , ¶27.
    {¶ 20} Further, this was a bench, not jury, trial.   In a bench trial the trial court is
    presumed to know the applicable law and apply it accordingly.               E. Cleveland v.
    Odetellah (1993), 
    91 Ohio App.3d 787
    , 794, 
    633 N.E.2d 1159
    ; State v. Waters, Cuyahoga
    App. No. 87431, 
    2006-Ohio-4895
    .
    {¶ 21} In light of the above, the first assignment of error is overruled.
    IV
    {¶ 22} For his second assigned error, Walton contends that the aggravated robbery
    conviction was against the manifest weight of the evidence. We disagree.
    {¶ 23} In reviewing a claim challenging the manifest weight of the evidence, the
    question to be answered is whether “there is substantial evidence upon which a jury could
    reasonably conclude that all the elements have been proved beyond a reasonable doubt.
    In conducting this review, we must examine the entire record, weigh the evidence and all
    reasonable inferences, consider the credibility of the witnesses, and determine whether
    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.”   (Internal citations and quotations
    omitted.) State v. Leonard, 
    104 Ohio St.3d 54
    , 
    2004-Ohio-6235
    , 
    818 N.E.2d 229
    , ¶81.
    {¶ 24} Walton contends that the conviction was against the manifest weight of the
    evidence because Schebek failed to notice his tattoos, thereby suggesting that her
    identification of him was unreliable. We do not find the failure to notice the tattoos
    unusual in this circumstance where Schebek made her observations while under
    considerable stress.   Further, Schebek never wavered about her identification of Walton.
    She “immediately” identified Walton as the perpetrator from the photo array, she
    identified him in court, and testified that she was “100 percent sure” that Walton was the
    perpetrator.   Moreover, two people provided tips that Walton was the robber.         The
    mere fact that Schebek did not notice his tattoos did not render her identification
    inaccurate or unreliable such that we would conclude that the court “clearly lost its way
    and created a manifest miscarriage of justice that the conviction must be reversed” under
    Leonard.
    {¶ 25} We are also not persuaded by Walton’s contention that his conviction was
    against the manifest weight of the evidence because “[a]n energetic detective failed to
    link [him] to the neighborhood[,]” and there was no fingerprint evidence.            Neither of
    these circumstances are so incredible such that the conviction created a manifest
    miscarriage of justice.
    {¶ 26} In light of the above, the second assignment of error is overruled and the
    trial court’s judgment is affirmed.
    {¶ 27} It is ordered that appellee recover of appellant costs herein taxed.
    {¶ 28} The court finds there were reasonable grounds for this appeal.
    {¶ 29} 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 conviction
    having been affirmed, any bail pending appeal 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.
    LARRY A. JONES, PRESIDING JUDGE
    COLLEEN CONWAY COONEY, J., and
    EILEEN A. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 96133

Citation Numbers: 2011 Ohio 5662

Judges: Jones

Filed Date: 11/3/2011

Precedential Status: Precedential

Modified Date: 10/30/2014