State v. Henson

[Cite as State v. Henson, 2019-Ohio-1966.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-695
(C.P.C. No. 18CR-1573)
v. :
(REGULAR CALENDAR)
Michael W. Henson, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 21, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
On brief: Jeremy A. Roth, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Michael W. Henson, appeals from a judgment entry of
the Franklin County Court of Common Pleas convicting him of two counts of robbery. For
the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In April 2018, plaintiff-appellee, State of Ohio, indicted Henson on two
counts of robbery in violation of R.C. 2911.02, one as a second-degree felony and the other
as a third-degree felony. Henson pleaded not guilty and waived his right to be tried by jury.
The matter was tried before the court in July 2018. As pertinent to this appeal, the following
evidence was adduced at trial.
{¶ 3} Eighty-two year old Jean Hazell testified that she went to the Kroger grocery
on Eakin Road in Franklin County, Ohio on March 13, 2018. After placing her groceries in
her car, she took the shopping cart to the cart return area. As she turned around to go to
No. 18AP-695 2
her car, a man, later identified as Henson, stood in front of her. Her purse was over her left
shoulder and she was holding it with her left hand. When Henson grabbed for her purse,
she hit him with her right hand. Henson took hold of the purse and pushed Hazell in the
middle of her chest. Hazell lost her balance and fell backward, but not "all the way to the
ground," causing her to release the purse. (July 17, 2018 Tr. at 15.) Henson ran with the
purse to a nearby car and drove away. When the responding police officer asked Hazell if
she needed medical assistance, she said that was unnecessary. Hazell indicated at trial that
she has arthritis in her hands, but she also described continued swelling and soreness in
one of her hands as a result of the robbery. In particular, she testified that "this middle
finger has been bothering me since the incident and the swelling has not gone down. * * * I
know ever since then my hand has been sore. But on a whole, I wasn't, you know, sore or
hurt." (Tr. at 19, 20.)
{¶ 4} Columbus Police Officer Robert Altherr responded to the scene of the
robbery. Hazell was visibly shaken but was able to give Officer Altherr a description of the
suspect and his vehicle. He asked her if she was injured. She responded that she was sore,
"that she had been thrown down and that her hand hurt, but she did not request a medic at
the time." (Tr. at 28.) Thus, while Hazell reported injuries, she did not require immediate
medical attention. Based on the information provided to Officer Altherr, which he aired
over the police radio, Columbus Police Officer Timothy Maclellan soon located Henson and
detained him.
{¶ 5} Columbus Police Detective Bradley Thomas took a photograph of Hazell's
injured left hand approximately one week after the incident. Hazell identified her left
middle finger as the injured finger. A few days later, Detective Thomas interviewed Henson
at police headquarters. During the recorded interview, which was played at trial, Henson
confessed to forcibly taking Hazell's purse.
{¶ 6} Based on the evidence at trial, the court found Henson guilty on the two
counts of robbery. For the purpose of sentencing, the court merged the two counts. The
court imposed a sentence of 30 months of community control with a suspended prison
sentence of 4 years. The court further certified that Henson had been in jail for 138 days as
of the date of sentencing.
{¶ 7} Henson timely appeals.
No. 18AP-695 3
II. Assignment of Error
{¶ 8} Henson assigns the following error for our review:
The trial court erred when it entered judgment against
appellant when the evidence was insufficient to sustain the
convictions and was against the manifest weight of the
evidence.
III. Discussion
{¶ 9} In Henson's sole assignment of error, he alleges his robbery convictions were
not supported by sufficient evidence and were against the manifest weight of the evidence.
This assignment of error lacks merit.
{¶ 10} Henson was convicted of committing robbery in violation of R.C.
2911.02(A)(2), a second-degree felony, and robbery in violation of R.C. 2911.02(A)(3), a
third-degree felony. The second-degree felony statute, 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 "[p]hysical harm"
includes "any injury * * * regardless of its gravity or duration." R.C. 2901.01(A)(3). The
third-degree felony statute, 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).
{¶ 11} While Henson's sole assignment of error generally alleges both of his
convictions were not supported by sufficient evidence and were against the manifest weight
of the evidence, his arguments only relate to his second-degree felony robbery conviction
on sufficiency and manifest weight grounds. He concedes he committed a theft offense and
that he used force against the victim as part of that theft; thus, he admits that he committed
a third-degree felony robbery. At issue in this appeal is whether there was sufficient
evidence to support the physical harm element of Henson's second-degree felony robbery
conviction, and whether the trial court's finding that he committed the second-degree
felony robbery was against the manifest weight of the evidence.
A. Sufficiency of the Evidence
{¶ 12} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
No. 18AP-695 4
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37. "[I]n a sufficiency of the evidence review, an appellate
court does not engage in a determination of witness credibility; rather it essentially assumes
the state's witnesses testified truthfully and determines if that testimony satisfies each
element of the crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 13} We find the evidence reasonably supported a determination that Henson
inflicted physical harm on Hazell when he stole her purse. After Hazell loaded her car with
groceries and placed the shopping cart in the return area, Henson confronted her and
grabbed at her purse. She initially was able to resist by hitting him with her right hand.
However, the struggle ended when Henson pushed Hazell in the chest and she fell
backward. It is unclear whether Hazell fell all the way to the ground when Henson pushed
her. She told the responding officer that she had been "thrown down," but at trial she did
not recall being pushed all the way to the ground. Even so, the evidence demonstrated that
Henson struggled with Hazell and then pushed her with sufficient force that she fell
backward and lost hold of the purse. Hazell reported to the responding officer that she had
injured her hand in the incident, and the photographic evidence presented at trial showed
swelling in her left hand middle finger. Thus, the evidence at trial reasonably demonstrated
that Henson inflicted physical harm on Hazell when he stole her purse. Consequently, we
conclude that sufficient evidence supported Henson's second-degree felony robbery
conviction.
B. Manifest Weight of the Evidence
{¶ 14} Determinations of credibility and weight of the testimony are primarily for
the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
The jury, or the court in a bench trial, may take note of inconsistencies at trial and resolve
them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver,
10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67
(1964). Therefore, "[w]hen a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the appellate court sits as a
No. 18AP-695 5
' "thirteenth juror" ' and disagrees with the factfinder's resolution of the conflicting
testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982); see State
v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 20 ("a prerequisite for any reversal on
manifest-weight grounds is conflicting evidence"). However, an appellate court
considering a manifest weight challenge "may not merely substitute its view for that of the
trier of fact, but 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." State
v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387.
Appellate courts should reverse a conviction as being against the manifest weight of the
evidence only in the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
{¶ 15} While Henson generally asserts a manifest weight challenge, he does not
identify any evidence in conflict with the evidence supporting his second-degree robbery
conviction. He simply asserts the totality of evidence demonstrates that his second-degree
felony conviction is against the manifest weight of the evidence. Based on our review of the
record, however, we do not find the trial court clearly lost its way in finding Henson guilty
of committing a second-degree felony robbery. Considering Hazell's unrebutted testimony
regarding the robbery, the photographic evidence supporting her testimony regarding her
injured finger, and Henson's recorded admission that he committed the underlying theft,
the weight of the evidence overwhelmingly supported this conviction.
{¶ 16} Because Henson fails to demonstrate that his convictions were not supported
by sufficient evidence or were against the manifest weight of the evidence, we overrule his
sole assignment of error.
IV. Disposition
{¶ 17} Having overruled Henson's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and SADLER, JJ., concur.