State v. Taylor

[Cite as State v. Taylor, 2011-Ohio-6493.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2011CA00090
PIERRE R. TAYLOR :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Case No. 2010CR1817
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 12, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD MARK CALDWELL BERNARD L. HUNT
Assistant Prosecuting Attorney 2395 McGinty Road N.W.
110 Central Plaza, South-Suite 510 North Canton, Ohio 44720
Canton, Ohio 44702
[Cite as State v. Taylor, 2011-Ohio-6493.]
Delaney, J.
{¶1} This is an appeal from a judgment of the Stark County Court of Common
Pleas following a jury verdict finding Defendant-Appellant Pierre Taylor guilty of robbery,
resisting arrest and unauthorized use of a motor vehicle.
{¶2} Appellant was indicted on January 3, 2011 and charged with theft, R.C.
2913.02(A)(1), a felony of the fifth degree, resisting arrest, R.C. 2921.33(A), a
misdemeanor of the second degree, and unauthorized use of a motor vehicle, R.C.
2913.03(A), a misdemeanor of the first degree. By superceding indictment, the charge
of theft was changed to robbery, R.C. 2911.02(A)(3), a felony of the third degree, on
February 23, 2011.
{¶3} Appellant entered a plea of not guilty of all charges and exercised his right
to a jury trial. By verdicts rendered on March 4, 2011, Appellant was found guilty of all
charges. Appellant was sentenced to a total prison term of 5 years.
{¶4} Appellant timely filed a notice of appeal and sets forth a single assignment
of error:
{¶5} “I. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.
{¶6} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeal functions as a “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
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.” State v. Thompkins (1997), 78
Stark County, Case No. 2011CA00090 3
Ohio St. 3d 380, 387, 678 N.E.2d 541. Reversing a conviction as being against the
manifest weight of the evidence and ordering a new trial should be reserved for only the
“exceptional case in which the evidence weights heavily against the conviction” Id.
{¶7} Appellant’s challenge to the evidence is general in nature and not specific
as to any element of the offenses of which he was convicted. The State has construed
Appellant’s assignment of error to challenge only his robbery conviction, and this Court
will do so as well.
{¶8} Appellant was convicted of robbery, pursuant to R.C. 2911.02(A)(3), which
states:
{¶9} “No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following:
{¶10} “ * * * Use or threaten the immediate use of force against another.”
{¶11} A “theft offense” under the robbery statute includes the taking of property
without the consent of the owner. R.C. 2913.02(A)(1).
{¶12} At trial, the State presented the testimony of Wal-Mart Loss Prevention
Officer Jessica Trusty, a six-year employee. Trusty testified that she working at the
Wal-Mart store in Alliance, Ohio in the afternoon of November 27, 2010, when she
observed the Appellant placing an unusual amount of sportswear into a shopping cart.
She also observed Appellant select a pair of shoes from the shoe department, put them
on, and put his old shoes into the shoe box. Appellant also placed two large totes in the
cart and placed merchandise into the totes. He put on a Pittsburgh Steelers jacket and
hat, and placed merchandise into the coat pockets.
Stark County, Case No. 2011CA00090 4
{¶13} Trusty contacted the Alliance Police Department as she proceeded to
observed Appellant, who appeared very nervous and skittish.
{¶14} Trusty followed Appellant as he wheeled the cart past the checkout
counters and exit through the first set of store doors. At this point, Trusty and another
Loss Prevention Officer Tobias Young attempted to stop Appellant and told him they
wished to talk with him. Appellant stated he did not have anything to talk about and
pushed the cart towards them.
{¶15} Officer Jeff Cook from the Alliance police arrived at that moment and told
Appellant he was going to be placed under arrest. An off-duty Alliance detective
shopping at the store, Steven Minich, also observed the incident and attempted to assist
Officer Cook before other police arrived. Appellant attempted to push away from the
officers and he was taken to the ground. He attempted to kick the officers and was
stunned with a taser.
{¶16} Officer Michael Donley testified he was working patrol and received a
shoplifting report from Wal-Mart and went to the scene. He observed Officer Cook and
Detective Minich attempt to subdue Appellant in the vestibule area of the store after the
first set of doors. He tasered Appellant due to this combative behavior so he could be
handcuffed. He acknowledged on cross-examination that a person can move
involuntarily when tasered.
{¶17} An inventory of the merchandised taken by Appellant was rung up by Wal-
Mart employees. The receipt totaled 47 items valued at $815, not including tax.
Stark County, Case No. 2011CA00090 5
{¶18} In addition to the above testimony, portions of the Appellant’s activities in
the store and arrest were captured on store surveillance cameras and introduced into
evidence on a DVD (State’s Exhibit 1).
{¶19} On appeal, Appellant argues Officer Trusty’s testimony was not credible
and should be disregarded. First, he contends that Officer Trusty conceded that other
customers who leave the store with unpaid merchandise have not been arrested.
Second, her testimony of certain prices on the receipt was incorrect (i.e. the Steelers
jacket rang up as $50 when it actually cost $52; the pair of shoes rang up as $30.85 but
listed on the police report as $30.87).
{¶20} However, based upon a thorough review of the record, there is no
indication that the jury clearly lost its way in determining that the State’s evidence, as a
whole, was believable.
{¶21} Appellant’s actions, as shown on the DVD and through the testimony of
Officer Trusty, in putting on and wearing store clothes, placing merchandise in his
pockets, and then proceeding through the door without paying supports the jury’s
finding that Appellant took Wal-Mart property without consent. Appellant then pushed
the store cart toward the officers and physically attempted to thwart the officers’ efforts
to detain him. Thus, evidencing the use of force while attempting or committing a theft
offense.
{¶22} In reviewing the weight of the evidence, we determine that the greater
amount of credible evidence supports the verdict and, therefore, we cannot say that the
factfinder clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.
Stark County, Case No. 2011CA00090 6
{¶23} The Assignment of Error is overruled.
{¶24} Appellant’s conviction in the Stark County Court of Common Pleas is
affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
[Cite as State v. Taylor, 2011-Ohio-6493.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
PIERRE R. TAYLOR :
:
Defendant-Appellant : Case No. 2011CA00090
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER