State v. Sewell

[Cite as State v. Sewell, 2018-Ohio-2027.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27562
:
v. : Trial Court Case No. 2015-CR-3390
:
KENNETH L. SEWELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of May, 2018.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 61 North Dixie Drive, Suite B,
Vandalia, Ohio 45377
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} This case is before us on the appeal of Defendant-Appellant, Kenneth
Sewell, from his conviction and sentence for robbery, following a bench trial. In support
of his appeal, Sewell contends that the court erred in denying his motion for acquittal
under Crim.R. 29(A), and that his conviction was against the manifest weight of the
evidence. Sewell further contends that he received ineffective assistance of counsel
when his trial counsel failed to request a bill of particulars and failed to cross-examine a
key State witness.
{¶ 2} We conclude that the trial court did not err in denying Sewell’s motion for
acquittal. Sewell had notice of the robbery charge against him pursuant to the
indictment, and the State did not commit to a specific theory of the case during opening
statement with respect to whether the underlying theft offense for robbery was of a
backpack or of a lighter, or both. Furthermore, during its case, the State presented
sufficient evidence to prove that Sewell had intent to deprive the victim of a lighter, and
that Sewell caused physical harm to the victim as he committed the theft or was fleeing
immediately after the theft. The State also did not change its theory of the case during
trial.
{¶ 3} We further conclude that the conviction for robbery was not against the
manifest weight of the evidence. The trial judge was the fact-finder and found the victim
credible. In contrast, the trial judge did not find Sewell credible. We defer to the trier of
fact on credibility issues, and there was no manifest miscarriage of justice.
{¶ 4} Finally, trial counsel did not provide ineffective assistance of counsel.
Assuming for purposes of argument that trial counsel should have filed a motion for a bill
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of particulars, there is no reasonable probability that the result of the trial would have been
different. Sewell did not deny striking the victim; his defense was that the lighter that
was allegedly taken belonged to him. However, the trial court did not find Sewell
credible. In addition, trial counsel did not provide ineffective assistance by discontinuing
his cross-examination of the victim with respect to ownership of the lighter. While the
victim had a hearing problem and some difficulty in communicating, he clearly indicated
the facts as to his ownership of the lighter during both direct and cross-examination.
Moreover, in view of the trial court’s credibility decisions, there is no reasonable
probability that the result of the trial would have been otherwise if counsel had persisted.
Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 5} On February 2, 2016, an indictment was filed charging Sewell with one count
of robbery (physical harm), in violation of R.C. 2911.02(A)(2), a second degree felony.
Sewell pled not guilty to the charge in September 2016, and trial was ultimately set for
March 28, 2017. On the day of trial, Sewell filed a waiver of jury trial, and the court
conducted a bench trial.
{¶ 6} At trial, the State presented testimony from the following individuals: two
employees of the Greater Dayton Regional Transit Authority (“RTA”); the director of
security for the Schuster Center; the alleged victim of the robbery; and two officers of the
Dayton Police Department (“DPD”). The evidence that the State presented indicated
that on November 4, 2015, Amy Davis was working as a transit ambassador for the RTA
and was stationed at the Wright Stop Plaza (also called the “Hub”) in downtown Dayton,
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Ohio. As part of her duties, Davis walked around the Hub helping people get on buses
and seeing to passenger safety. She also walked along the street in the general area to
make sure no one was smoking against the RTA building.
{¶ 7} On November 4, 2015, Davis was watching a group of four people who were
huddled together on the platform and were acting a little strange. These four individuals
were later identified as Kenneth Sewell and three of his friends, Deonte, Adara, and Tion.
At the time, Sewell was wearing turquoise scrubs, Deonte was wearing a black hat, and
Adara had on a red Ace Hardware vest.
{¶ 8} Davis followed these four individuals as they walked away from the platform
and down Main Street, toward Third Street. While they were walking down Main Street,
Davis saw the group encounter an older man and begin to converse. The older man was
Stanley Rutlin, and he was wearing a black backpack. Davis knew Rutlin by name
because he was a regular at the Hub. Although Rutlin was deaf, Davis was able to
communicate with him because Rutlin could read lips. Davis could not tell what the
people were saying, but she saw one of the individuals (not Sewell) holding something
above Rutlin’s head, and saw Rutlin trying to get the object from that person. Davis
stated that the individuals were holding something away from Rutlin.
{¶ 9} After this occurred, Davis saw Sewell and Rutlin circling each other. Rutlin
set his backpack down, and he and Sewell began throwing punches at each other. Davis
saw Sewell hit Rutlin in the mouth and saw Rutlin attempt to hit Sewell, but Rutlin never
actually made contact. At that point, Davis called Gerry Gustin, who was the RTA
manager of safety and security, to let him know there was a fight on the corner of Third
and Main Streets. She also alerted RTA dispatch, because some DPD officers were
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specifically assigned to the Hub.
{¶ 10} Davis saw Sewell grab a backpack and run across Third Street. As soon
as Gustin received Davis’s call, he ran out the Third Street doors of the Hub. Davis
pointed to an individual wearing turquoise scrubs (Sewell), who was going down the
sidewalk holding what appeared to be a book bag. Gustin ran after Sewell and made
eye contact with him. Sewell turned north through a parking lot and then ran up an alley
that went back towards Main Street. During the pursuit, Gustin fell off a little concrete
wall, and by that time, Sewell had a good lead. Gustin also had a muscle disease and
did not have good running abilities.
{¶ 11} Gustin could see Sewell across Main Street, going in the direction of the
Schuster Center. However, when he looked up again, Sewell was gone. While running
in the direction where he had last seen Sewell, Gustin happened on an alley that went
down to the Schuster Center. The alley contained an open entrance into a parking
garage. After entering the garage, Gustin saw some items that looked like they had been
dumped on the ground, but did not touch them. He then went up an elevator and exited
on the ground floor of a building (Performance Place) that is located next to the Schuster
Center and contains apartments and offices. The elevator that Gustin took did not
contain any discarded items, but Rutlin’s backpack was later found in an elevator at the
Schuster Center. Gustin had no further contact with Sewell.
{¶ 12} There are camera security systems in the Schuster Center, at the Arts
Garage on Ludlow Street, at the Victoria Theater, and at Performance Place, which is the
tower that houses residences and some law offices. After speaking with a police officer
on November 4, 2015, Braxton Gilkey, the director of security for the Schuster Center,
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checked the security footage for the Performance Place alley and garage. Gilkey then
made two still photos. One photo was of a man in turquoise clothing in the alley next to
Performance Place, and the other was of a man in turquoise clothing inside the lower
level of the parking garage. Because the camera revolved, Gilkey had to capture a
picture of the man when he was in view of the camera.
{¶ 13} Rutlin also testified, and there was some difficulty in understanding him
because he was deaf. Rutlin stated that on November 4, 2015, he was at the RTA Hub
and was walking downtown, on Third and Main Streets. He was walking with someone
and talking, but that person left to go to work. Subsequently, Sewell and his friends came
up to Rutlin, and one of Sewell’s friends (later identified as Deonte) asked to use Rutlin’s
lighter. Rutlin gave Deonte the lighter to use, but Deonte did not give it back. Sewell
then took the lighter from Deonte and also did not give it back. Rutlin told Sewell to give
him back his lighter, but Sewell would not give it back. Sewell kept moving around.
Sewell then put up his fists. When Sewell did that, Rutlin took off his backpack and put
it down next to him. He told Sewell to “come on and do this,” because Sewell would not
give him back his lighter. Sewell then hit Rutlin in the face with his fist. Rutlin stated
that Sewell hurt him and that he had a sore inside his mouth as a result.
{¶ 14} After Sewell hit Rutlin, Sewell was running around and took Rutlin’s
backpack. Rutlin saw Sewell running over the streets, by a bank, and through a parking
lot. The police then came and put Rutlin in a cruiser. They also chased Sewell. Rutlin
did not see Sewell again, but the police later returned the backpack, and nothing in the
backpack was missing. Rutlin further stated that he had purchased the lighter at a store
and had not been near Riverscape that day.
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{¶ 15} Shaun Olinger, a DPD officer, was assigned to the RTA Hub on an overtime
contract on November 4, 2015, and was working with another DPD officer patrolling the
block encompassed by the RTA. At about 1:30 p.m., Gustin told Olinger that a robbery
had taken place and that a gentleman had taken off with a backpack. Olinger received
a description that the man was dressed in blue scrubs and was going northbound, which
would be up toward Main Street. After retrieving his patrol car, Olinger traveled
westbound onto Third Street toward Main Street. When Olinger reached Ludlow Street,
he saw a man (later identified as Sewell), and assumed Sewell had seen his cruiser,
because Sewell took off at a dead sprint. Sewell was in the area of Second Street and
Ludlow Street, about a block away. Because Ludlow was a one-way street, Olinger
activated his lights and went the wrong way on Ludlow to pursue Sewell. He then
apprehended Sewell at 34 West Second Street, near Boston Stoker.
{¶ 16} When Olinger first saw Sewell, Sewell did not match the original description,
as he was not wearing turquoise or blue scrubs; he was wearing black pants and a black
shirt. Olinger stated that it was obvious that Sewell had been running – and not just from
seeing Olinger, as Sewell was sweating and had an elevated heartbeat.
{¶ 17} After Olinger apprehended Sewell, an additional call was received from the
Schuster Center, where a backpack had been found. Subsequently, Olinger met with
Rutlin, who confirmed that nothing was missing from the backpack. Olinger then
returned the backpack to Rutlin.
{¶ 18} On November 5, 2015, DPD Detective Doug Hall became aware of the
robbery. Hall met with the alleged victim, Rutlin, who explained what had happened. Hall
took photos, which demonstrated a cut, abrasion, and some redness inside Rutlin’s
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mouth. Hall then went to the jail, where Sewell was being held on a robbery charge.
After Sewell’s rights were read to him, Sewell indicated he was willing to talk. Sewell
told Hall that he had missed an appointment the previous day and had decided to hang
out at the RTA with some friends. According to Sewell, Rutlin was badgering Sewell and
his friends and wanted a lighter. Sewell stated that he kept telling Rutlin no, that he was
not going to give him a lighter. Eventually, they engaged in a fight, with Rutlin taking the
first swing. As a result, Sewell decided to defend himself.
{¶ 19} Sewell indicated he had taken the backpack to get Rutlin to stay away from
him. He said he had not taken anything from the backpack and had discarded it
somewhere.
{¶ 20} After speaking with Sewell, Hall viewed videos of the incident obtained from
RTA cameras and police cameras, and spoke with RTA employees, including Davis and
Gustin. He also obtained a couple of still photos from Gilkey. At trial, Hall indicated that
Sewell had property in his possession when he was arrested. Hall was most concerned
with any cigarette lighters. Sewell had said he had two lighters when he came into the
jail, and two separate lighters had been logged into the property room. Hall took pictures
of two BIC lighters that he recovered from the property room after questioning Sewell.
{¶ 21} After the State rested, Sewell moved for a Crim.R. 29(A) acquittal, alleging
that the State failed to present the lighter theft as a basis for the robbery charge during
opening statement. Sewell also maintained that the alleged theft of the backpack could
not sustain a robbery conviction because of the lack of evidence that physical force was
used in connection with the backpack. The trial court agreed with the latter proposition
and granted the motion with respect to the backpack. However, the court concluded that
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there was sufficient proof of the physical fight over the lighter and overruled the motion
for acquittal on this basis.
{¶ 22} As was noted, Sewell offered his own testimony at trial. Sewell claimed
that the lighter belonged to him. His story was that he and his friends had encountered
Rutlin earlier in the day at Riverscape. At that time, Rutlin walked up to them and asked
if anyone had a lighter. Deonte had Sewell’s lighter at that point, and let Rutlin use it.
Sewell then started talking to Adara (the woman in the Ace Hardware vest), and lost track
of Rutlin. Subsequently, Sewell noticed that Rutlin was gone. When he asked Deonte
if he had gotten the lighter back, Deonte said, “Oh, my bad.” Transcript of Trial
Proceedings, p. 182.
{¶ 23} Eventually, the four friends went to the Hub area. They were there for
about ten to fifteen minutes before seeing Rutlin. At that point, they had walked up Main
Street towards Third and Main. Rutlin was walking west on Third Street, and Deonte
recognized him as the man who had Sewell’s lighter. When they arrived at the corner of
Third and Main Streets, Deonte asked Rutlin if he could use his lighter. In response,
Rutlin pulled out Sewell’s lighter. According to Sewell, he quickly noticed that the lighter
belonged to him because his initials are on the bottom of all his lighters. Sewell
described a process by which he scratches his initials, “K.S,” on the bottom edge of all
his lighters by using his fingernails.
{¶ 24} Deonte got the lighter from Rutlin and used it to light a cigar that the group
of friends intended to share. Sewell walked past Rutlin and told him that the lighter was
his because he had noticed his initials. Sewell then took the lighter from Deonte. They
were laughing at Rutlin because he kept “going off”; Rutlin wanted the lighter back, and
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they were not giving it to him. Sewell admitted holding the lighter in his hand and said
he had no intention of giving the lighter back to Rutlin because he (Sewell) owned the
lighter. Sewell told Rutlin that the lighter was the one Rutlin had gotten from them at
Riverscape.
{¶ 25} According to Sewell, Rutlin tried to fight him to get the lighter back. Sewell
admitted punching Rutlin in the face. Sewell also said he eventually picked up the
backpack and ran away because he was trying to get away from Rutlin. Sewell further
said that he knew Rutlin was chasing him, but was unaware that he was being chased by
anyone else. Sewell admitted running into the garage at Performance Place because
he had seen the police and was trying to hide and get away. And finally, Sewell admitted
changing out of his blue scrubs.
{¶ 26} Two lighters were found in Sewell’s pocket when he was arrested. One
was a tall red BIC lighter and the other was a smaller BIC lighter. As to the presence of
these two lighters in his pocket, Sewell claimed the smaller lighter was one he had
borrowed from Adara that did not work. On rebuttal, Hall presented the two lighters that
he had retrieved from the property room and demonstrated that the smaller lighter, in fact,
was operational. Hall also testified that he could not see any initials scratched on the
taller lighter (the one in dispute), nor could he see any markings that did not appear to be
part of the original packaging. On surrebuttal, Sewell stated that he was having difficulty
seeing the mark he made in the plastic part of the lighter. He then looked at the lighter
with a magnifying glass and stated that he could see a scratch on the plastic.
{¶ 27} After hearing the evidence, the trial court found Sewell guilty of robbery and
imposed community control sanctions, including intensive probation supervision for up to
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five years. Sewell timely appealed from his conviction and sentence.
II. Denial of Motion for Acquittal
{¶ 28} Sewell’s First Assignment of Error states that:
The Trial Court Erred to the Prejudice of the Appellant When It
Improperly Denied Defendant’s Motion for Acquittal in Violation of the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution.
{¶ 29} Under this assignment of error, Sewell contends that the trial court erred by
denying his Crim.R. 29(A) motion for acquittal after he was acquitted of robbery based on
the alleged theft of the backpack. Sewell’s argument is premised on an allegation that
the State only mentioned the backpack during its opening statement, and failed to assert
the theory that the theft of the lighter satisfied the underlying predicate for a robbery
conviction.
{¶ 30} Under Crim.R. 29(A), a trial court may order a judgment of acquittal if the
evidence is not sufficient to sustain a conviction for the charged offense. When
sufficiency of the evidence is at issue, the pertinent “inquiry is, after viewing the evidence
in the light most favorable to the prosecution, whether any reasonable trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.”
(Citation omitted.) State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991).
{¶ 31} Sewell was charged with a violation of R.C. 2911.02(A)(2), which provides,
in relevant part, that:
No person, in attempting or committing a theft offense or in fleeing
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immediately after the attempt or offense, shall do any of the following:
***
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on
another * * *.
{¶ 32} As was noted, the trial court conducted a bench trial on March 28, 2017.
R.C. 2945.10 governs the order of proceedings at trial, and provides, in pertinent part,
that:
The trial of an issue upon an indictment or information shall proceed
before the trial court or jury as follows:
(A) Counsel for the state must first state the case for the prosecution,
and may briefly state the evidence by which the counsel for the state
expects to sustain it.
***
The court may deviate from the order of proceedings listed in this
section.
{¶ 33} An acquittal may be granted after the State’s opening statement if the State
indicates that no offense was committed or that an accused was not guilty of the crime
charged. See, e.g., State v. Karcher, 155 Ohio St. 253, 98 N.E.2d 308 (1951), paragraph
one of the syllabus. Nonetheless, the requirement of making opening statements has
been held discretionary for both the State and the defense, despite the mandatory
language in R.C. 2945.10. This is because the statute also gives courts discretion to
deviate from the order of proceedings. State v. Shaker, 68 Ohio App.2d 135, 138, 427
N.E.2d 537 (8th Dist.1980). Accord City of Centerville v. Locker, 2d Dist. Montgomery
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No. 6835, 1981 WL 5355, *3 (Dec. 2, 1981).
{¶ 34} We have also noted that it is not unusual for opening statements to be
waived when trial is to the bench, rather than a jury. State v. Brickman, 2d Dist. Greene
No. 85-CA-20, 1986 WL 2365, *4 (Feb. 20, 1986) (waiver by defense of opening
statement). See also Springfield v. Pullins, 130 Ohio App.3d 346, 352, 720 N.E.2d 138(2d Dist.1998) (both sides waived opening statements in trial to court); State v. New, 197
Ohio App.3d 718, 2012-Ohio-468, 968 N.E.2d 607, ¶ 2 (10th Dist.) (both sides waived
opening statements in bench trial).
{¶ 35} In the case before us, the prosecutor did not waive opening statement, but
instead made a brief presentation to the trial court. During his opening statement, the
prosecutor noted that Rutlin had been approached by Sewell and several other young
men who asked to borrow his lighter. Transcript of Trial Proceedings, p. 7. The
prosecutor then briefly outlined the testimony of anticipated witnesses, who would
indicate that Sewell began to badger Rutlin, punched Rutlin, and then took a backpack
that Rutlin had put down when the assault began. Id. After outlining testimony about
the chase, including video surveillance that showed an individual matching Sewell’s
description entering the parking garage “immediately after the robbery took place,” the
prosecutor noted Sewell’s statement to the police that he took Rutlin’s bag so Rutlin would
leave him alone. Id. at p. 8.
{¶ 36} Finally, the prosecutor said, “At the end of this trial, after you’ve heard all
the evidence that will be presented to you, the State asks that you find the defendant
guilty of robbery.” Id. The prosecutor did not specifically state that either the lighter or
the backpack was the underlying theft offense for the robbery charge.
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{¶ 37} During trial, the State elicited evidence during its case that the lighter
belonged to Rutlin, that it was taken from him and not returned, despite his request, and
that it came into Sewell’s possession prior to the fight. Sewell did not dispute that he hit
Rutlin; his eventual defense was that the lighter belonged to him and that he was
defending himself.
{¶ 38} At the end of the State’s case, Sewell asked the court to acquit him of the
robbery charge because the State failed to indicate during opening statement that the
robbery charge was based on the theft of the lighter. The trial court rejected this
argument, noting that opening statements are not evidence. A lengthy discussion then
ensued concerning whether, for purposes of the underlying theft offense, there was
sufficient evidence to indicate that Sewell had the intent to deprive Rutlin of either the
lighter or backpack, and whether the physical harm that was inflicted took place as Sewell
committed the theft or was fleeing immediately after the theft. Transcript of Trial
Proceedings, pp. 156-176. Ultimately, the court concluded that the evidence was
sufficient regarding the theft of the lighter, but not the backpack. The court also
commented that the indictment did not speak to either the backpack or the lighter, and
again stressed that opening statements are not evidence. Id. at p. 176.
{¶ 39} After the motion was overruled with regard to the lighter, Sewell testified
and indicated, as noted above, that the lighter belonged to him. Sewell renewed his
motion for acquittal at the close of his own evidence, and the court again overruled the
motion. Id. at p. 206.
{¶ 40} “When a defendant challenges the sufficiency of the evidence, the
defendant is arguing that the State presented inadequate evidence on an element of the
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offense to sustain the verdict as a matter of law.” State v. Griffith, 2015-Ohio-4112, 43
N.E.3d 821, ¶ 26 (2d Dist.), citing State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d
594 (2d Dist.2000). “An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The 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.”
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph two of the syllabus.
{¶ 41} After considering the matter, we agree with the trial court. We have said
before that “[o]pening statements are not ‘evidence.’ ” State v. Smith, 84 Ohio App.3d
647, 662, 617 N.E.2d 1160 (2d Dist.1992). Accord State v. Ramey, 2015-Ohio-5389, 55
N.E.3d 542, ¶ 40 (2d Dist.); State v. Taylor, 2d Dist. Montgomery No. 23990, 2014-Ohio-
3647, ¶ 36. See also Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d
155, ¶ 29 (“Opening statements are not evidence; they serve merely as previews of a
party's claims and are designed to help the jury follow the evidence as it is presented later
in the trial.”)
{¶ 42} In Shaker, 68 Ohio App.2d at 138, 427 N.E.2d 537, the Eighth District Court
of Appeals rejected a defendant's contention that the prosecution's opening statement
was required because it would provide necessary notice to the defendant of the charges
against him. In this regard, the court stated:
[T]here is ample notice of the charges against a defendant by virtue of the
complaint or indictment filed against the defendant by the state. A
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defendant has significant discovery rights under Crim.R. 16 to enable him
to obtain necessary evidence to properly prepare a defense. R.C.
2945.10(A) does not require the state prosecutor to state any evidence by
which he expects to sustain his case against a defendant.
Id.{¶ 43} In State v. Cass, 10th Dist. Franklin No. 99AP-1422, 2000 WL 1678024(Nov. 9, 2000), the court of appeals held that defense counsel did not commit ineffective
assistance by waiving an opening statement, because “[i]n a bench trial, the judge is
aware of the nature of the case, so he can anticipate what the attorney is trying to prove.”
Id. at *3. This court has also concluded that defense counsel did not render ineffective
assistance by failing to make an opening statement because the “case was tried to an
experienced judge, who was familiar with the issues and the law.” In re Robert B., 186
Ohio App.3d 389, 2009-Ohio-3644, 928 N.E.2d 746, ¶ 46 (2d Dist.). While these cases
deal with waiver of opening statements, the point is that in a bench trial, the court is well-
aware of the legal requirements of offenses that have been charged.
{¶ 44} The indictment charged that Sewell “on or about November 4, 2015 * * *, in
attempting or committing a theft offense, or in fleeing immediately after the attempt or
offense, did inflict, attempt to inflict, or threaten to inflict physical harm on another, to wit,
STANLEY RUTLIN; contrary to the form of the statute, (in violation of Section
2911.02(A)(2) of the Ohio Revised Code) * * *.” Doc. #11, p. 1. This wording was
appropriate under Crim.R. 7(B), which indicates that the statement in the indictment “may
be in the words of the applicable section of the statute, provided the words of that statute
charge an offense, or in words sufficient to give the defendant notice of all the elements
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of the offense with which the defendant is charged.” In the case before us, the indictment
tracked the statutory language in R.C. 2911.02(A)(2), and was sufficient to put Sewell on
notice of the charge. (Citations omitted.) See, e.g., State v. Jackson, 134 Ohio St.3d
184, 2012-Ohio-5561, 980 N.E.2d 1032, ¶ 14. If Sewell wanted further specificity, he
could have requested a bill of particulars. Id. at ¶ 15, citing State v. Sellards, 17 Ohio
St.3d 169, 171, 478 N.E.2d 781 (1985).
{¶ 45} Furthermore, there is no indication that the State changed its theory of the
case during trial. In responding to the motion for acquittal, the State referenced the
testimony that Rutlin’s lighter had been taken from him, that Sewell would not give it back
after Rutlin requested that he do so, and that an altercation then ensued. The State
further noted that Sewell had moved the backpack away while fighting with Rutlin and
had eventually scooped it up as he ran away. After making these observations, the State
commented that “[t]hose facts, at this juncture, show that the defendant in the commission
of a theft offense, either the taking of the lighter or the taking of the backpack, punched
Mr. Rutlin in the face and inflicted physical harm, however slight that physical harm might
be.” Transcript of Trial Proceedings, pp. 155-156.
{¶ 46} As was noted, an acquittal may be granted after the State’s opening
statement if the State indicates that no offense was committed or that an accused was
not guilty of the crime charged. Karcher, 155 Ohio St. 253, 98 N.E.2d 308, at paragraph
one of the syllabus. That did not occur during this case. The State made no such
admissions. In addition, Sewell failed to make such a motion – and for the reasons
mentioned, the motion would have been without merit, anyway.
{¶ 47} Accordingly, the trial court did not err in overruling Sewell’s Crim.R. 29(A)
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motion for acquittal concerning the robbery charge. The First Assignment of Error,
therefore, is overruled.
III. Manifest Weight Analysis
{¶ 48} Sewell’s Second Assignment of Error states as follows:
The State Failed to Meet Its Burden of Proof by the Manifest Weight
of the Evidence.
{¶ 49} Under this assignment of error, Sewell contends that the judgment is
against the manifest weight of the evidence because there was a dispute about ownership
of the lighter, and the trial court lost its way by crediting Rutlin’s statements over Sewell’s
testimony. Sewell also argues that even if a theft offense may have occurred, it took
place prior to the assault. Thus, when the assault occurred, Sewell already had the
lighter in his possession.
{¶ 50} “When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, 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. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should
be reversed as being against the manifest weight of the evidence ‘only in the exceptional
case in which the evidence weighs heavily against the conviction.’ ” Id., quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
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{¶ 51} Furthermore, “ ‘[b]ecause the factfinder * * * has the opportunity to see and
hear the witnesses, the cautious exercise of the discretionary power of a court of appeals
to find that a judgment is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder's determinations of credibility. The
decision whether, and to what extent, to credit the testimony of particular witnesses is
within the peculiar competence of the factfinder, who has seen and heard the witness.’ ”
State v. Flores-Lopez, 2017-Ohio-690, 85 N.E.3d 534, ¶ 50 (2d Dist.), quoting State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 52} Our review of the record reveals that the judgment was not against the
manifest weight of the evidence. The trial court specifically stated that it found Rutlin’s
testimony credible and believed that Rutlin owned the lighter. See Transcript of Trial
Proceedings, p. 163. The court reiterated this credibility finding in its written decision.
Doc. #68, Verdict and Judgment of Guilty on Count One, p. 3. The court further stated
that Sewell’s testimony was not credible. Id. at p. 5. As was noted, we must give these
credibility decisions deference. Furthermore, we see no basis for concluding that the
trial court lost its way. There was evidence in the record to support the trial court’s
findings. A factual dispute existed, and the court resolved it by choosing to believe the
witness it found more credible.
{¶ 53} We also disagree with Sewell’s contention that a robbery did not take place
because he already had the lighter in his possession when the assault occurred. In this
regard, R.C. 2911.02(A)(2) prohibits persons from inflicting or attempting to inflict physical
harm on another “in attempting or committing a theft offense or in fleeing immediately
after the attempt or offense * * *.” As a result, a violation can occur in several situations.
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{¶ 54} We have previously rejected the type of argument that Sewell is making.
See State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633 (2d Dist.). In Frazier, the defendant
grabbed an e-cigarette from the victim while they were riding on an RTA bus. The
defendant (Frazier) refused to return the e-cigarette, and as he was about to exit the bus,
told the victim that he would have to fight him for it. Id. at ¶ 5-6. Frazier then lunged at
the victim, punched him, exited the bus, and left the scene. Id. at ¶ 7.
{¶ 55} After being convicted of robbery, Frazier contended on appeal that his
conviction was against the manifest weight of the evidence because “the State failed to
present sufficient evidence that he inflicted physical harm as part of or immediately after
the theft offense * * *.” Id. at ¶ 36. In particular, Frazier focused on the fact that the fight
occurred at least two or three minutes after he took the e-cigarette, and there was no
evidence that he had inflicted physical harm on the victim at the time the e-cigarette was
taken. Id.
{¶ 56} We noted that the Supreme Court of Ohio had “explained that the force or
physical harm attendant to the theft offense does not need to be inflicted in furtherance
of a purpose to deprive another of property.” Id. at ¶ 37, citing State v. Thomas, 106
Ohio St.3d 133, 2005-Ohio-4106, 832 N.E.2d 1190, ¶ 13. Thus, it was not necessary
that Frazier have assaulted the victim to obtain the e-cigarette; it would be sufficient if he
assaulted the victim after obtaining possession of an object that he knew did not belong
to him, and fled immediately thereafter. The same observations apply here. Sewell did
not need to assault Rutlin prior to obtaining the lighter.
{¶ 57} In Frazier, we also considered the issue of whether the physical harm had
been committed while the defendant was fleeing immediately after the attempt or offense.
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In connection with this point, we commented that:
Focusing on the phrase “or in fleeing immediately after the attempt or
offense,” the supreme court noted that neither “fleeing” nor “immediately” is
defined by the Ohio Revised Code. Thomas at ¶ 15. The supreme court
defined “to flee” as “ ‘[t]o run away from,’ ‘to try to escape,’ ‘[t]o hasten for
safety,’ or ‘[t]o withdraw hastily.’ ” Id., quoting V Oxford English Dictionary
(2d Ed.1989) 1037. The Court further defined “immediately” as “ ‘[w]ith no
person, thing, or distance, intervening in time, space, order, or succession,’
or ‘[w]ithout any delay or lapse of time.’ ” Id., quoting at VII Oxford English
Dictionary (2d Ed.1989) 682.
Id. at ¶ 37.
{¶ 58} We concluded that whether force has been used “as part of or while fleeing
immediately after an offense is fact-specific.” Id. at ¶ 38. After discussing the facts in
Frazier, we held that the conviction was not against the manifest weight of the evidence
because the assault occurred within minutes of the theft. Id. at ¶ 42. We contrasted the
situation in Frazier with Thomas, where the defendant had stolen some groceries and
had dropped them soon after exiting the store. The defendant was then followed into a
nearby laundromat by an off-duty police officer who worked for the store. After the
defendant agreed to return to the store, a scuffle ensued when they arrived back at the
front door of the store. Frazier at ¶ 38-39, citing Thomas, 106 Ohio St.3d 133, 2005-
Ohio-4106, 832 N.E.2d 1190, at ¶ 16. Under these circumstances, the Supreme Court
of Ohio concluded that physical harm did not occur while the defendant was fleeing
immediately after the theft. Id. at ¶ 39.
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{¶ 59} The facts in the case before us are comparable to those in Frazier; and they
are not like the facts in Thomas. The State notes in its brief (and Sewell does not
dispute) that only about 45 seconds elapsed between the time Rutlin made contact with
Sewell’s group and when Sewell took the lighter and punched Rutlin in the face. State’s
Brief, p. 14, citing State’s Ex. 1 at 13:31:40-13:32:24. This is even less than the two or
three minute time lapse that the defendant relied on in Frazier (and that we rejected).
Frazier at ¶ 36 and 41-42. Even if more time had elapsed, however, the testimony
indicated that a fight occurred over the lighter, and Sewell ran away immediately after
causing physical harm to Rutlin.
{¶ 60} Accordingly, the trial court’s decision was not against the manifest weight
of the evidence, and the Second Assignment of Error, therefore, is overruled.
IV. Ineffective Assistance of Counsel
{¶ 61} Sewell’s Third Assignment of Error states that:
The Appellant Received Ineffective Assistance of Counsel When
Counsel Failed to Request a Bill of Particulars and Failed to Cross-Examine
a Key Witness of the State.
{¶ 62} In contending that trial counsel provided ineffective assistance, Sewell
relies on two points. The first is that trial counsel erred in failing to request a bill of
particulars, which allegedly would have mentioned that the item stolen was the backpack,
not the lighter, and would have resulted in a complete acquittal.
{¶ 63} Claims of ineffective assistance of trial counsel are reviewed under the
analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
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674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989). Under this analysis, “[c]ounsel's performance will not be
deemed ineffective unless and until counsel's performance is proved to have fallen below
an objective standard of reasonable representation and, in addition, prejudice arises from
counsel's performance.” Bradley, at paragraph two of the syllabus. To establish
prejudice, “the defendant must prove that there exists a reasonable probability that, were
it not for counsel's errors, the result of the trial would have been different.” Id. at
paragraph three of the syllabus.
{¶ 64} We accord trial counsel with “a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” (Citation omitted.) Strickland, 466 U.S. at
689. And finally, we are not allowed to use hindsight “to distort the assessment of what
was reasonable in light of counsel's perspective at the time.” State v. Cook, 65 Ohio
St.3d 516, 524-525, 605 N.E.2d 70 (1992).
{¶ 65} “In a criminal prosecution the state must, in response to a request for a bill
of particulars or demand for discovery, supply specific dates and times with regard to an
alleged offense where it possesses such information.” Sellards, 17 Ohio St.3d 169, 478
N.E.2d 781, at syllabus. See also Crim.R. 7(E). “A bill of particulars is not designed to
provide the accused with specifications of evidence or to serve as a substitute for
discovery.” State v. Smith, 2d Dist. Montgomery No. 19370, 2003-Ohio-903, ¶ 20, citing
State v. Wilson, 29 Ohio St.2d 203, 280 N.E.2d 915 (1972).
{¶ 66} Even if we assumed that trial counsel should have requested a bill of
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particulars, Sewell provides no reason why this would have affected the trial. Sewell
admitted that he hit Rutlin; his defense was that the lighter belonged to him, not to Rutlin,
and that, as a consequence, he could not be guilty of an underlying theft offense.
Compare State v. Kisseberth, 2d Dist. Montgomery No. 20500, 2005-Ohio-3059, ¶ 65,
reversed in part on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109
Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174, ¶ 86 (defense counsel lacked
compelling reasons to file motion for bill of particulars, where defendant’s testimony in
case involving sexual battery was that he had not engaged in sexual conduct with victims;
filing motion for bill of particulars would have had “no discernible effect on the outcome of
the trial”).
{¶ 67} We have also previously observed that details provided by a bill of
particulars would not have resulted in a reasonable probability of a different outcome
where the fact-finder found the victim’s testimony more credible. State v. Hartman,
2016-Ohio-2883, 64 N.E.3d 519, ¶ 47 (2d Dist.). In addition, we have said that “while it
is true that counsel did not request a bill of particulars, the record demonstrates that
counsel did seek all available discovery under both Crim.R. 16 and under the broader
discovery provisions of the local court management plan. When the State allows open-
file discovery, as it did in this case, a bill of particulars is not required.” State v. Evans,
2d Dist. Montgomery No. 20794, 2006-Ohio-1425, ¶ 24, citing State v. Tebcherani, 9th
Dist. Summit No. 19535, 2000 WL 1729456 (Nov. 22, 2000) (finding no prejudice in
counsel’s failure to request a bill of particulars). See also State v. Jamison, 9th Dist.
Summit No. 27664, 2016-Ohio-5122, ¶ 6. There is no indication in the record that
defense counsel failed to receive all available discovery.
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{¶ 68} While the Supreme Court of Ohio has said that bills of particulars should be
provided if requested (which Sewell did not do here), the court has also stressed that the
real question is whether the defendant’s “lack of knowledge concerning the specific facts
a bill of particulars would have provided him actually prejudiced him in his ability to fairly
defend himself.” State v. Chinn, 85 Ohio St.3d 548, 569, 709 N.E.2d 1166 (1999). As
was noted, we find no possible way in which trial counsel’s failure to file a motion for a bill
of particulars prejudiced Sewell.
{¶ 69} Sewell’s second ground for ineffective assistance of counsel is that trial
counsel was ineffective during his cross-examination of the victim. This assertion is
based on the following exchange:
Q [MR. HODGE] Okay. The lighter that you gave to his friend –
A (indiscernible).
Q Okay. Do you know whether that was Mr. Sewell’s lighter before
you got it?
A (indiscernible) he came (indiscernible) his friend (indiscernible)
what he’s doing. He (indiscernible).
THE COURT: Mr. Rutlin, go ahead, say that again. I couldn’t
understand you.
MR. HODGE: I (indiscernible).
THE WITNESS: (indiscernible) he come to me, his friend
(indiscernible). I (Indiscernible) and he’s (indiscernible) my face. You
know, (indiscernible) lighter with his hands (indiscernible), walk away from
(indiscernible), and I (indiscernible) my lighter.
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THE COURT: Go ahead. Vick, if you would, re-ask the question.
MR. HODGE: Yeah, he didn’t answer Judge. I’m going to give up.
THE WITNESS: (indiscernible).
MR. HODGE: I’ll give up on that.
THE COURT: Okay.
MR. HODGE: Thank you.
Transcript of Trial Proceedings, pp. 94-95.
{¶ 70} According to Sewell, trial counsel was ineffective because he did not
complete cross-examination on this point, and should not have given up on his attempt
to determine if Rutlin would have admitted that the lighter belonged to Sewell.
{¶ 71} After examining the record, we do not find that trial counsel was ineffective,
nor do we find any prejudice. As was noted, Rutlin was deaf and both the State and
defense had some difficulty during their examinations. However, Rutlin clearly stated
the following: Sewell’s friends came up to him on the day of the incident near the RTA
station and asked him for a lighter; he gave Sewell’s friend, Deonte, the lighter; Deonte
did not give the lighter back to Rutlin; Sewell came up and took the lighter away from
Deonte; even though Rutlin asked Sewell for the lighter back, Sewell would not give it
back; Sewell kept moving around and put up his fists; Rutlin took off his book bag and
told Sewell to “come on and do this” because Sewell would not give him back his lighter,
people were laughing; Sewell hit Rutlin in the face and hurt him; and Sewell grabbed
Rutlin’s book bag and ran off. Id. at pp. 81-86. Rutlin further stated that Sewell hit him
over the lighter. Id. at p. 91.
{¶ 72} Despite Rutlin’s hearing problems, this testimony was quite clear. During
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cross-examination, Rutlin also stated that he had gone to the store and bought the lighter.
He also denied being at Riverscape earlier that day (which is where Sewell claimed Rutlin
had been when he borrowed Sewell’s own lighter). Id. at pp. 93-94. Again, this
testimony was very clear. After receiving these responses, defense counsel attempted,
as indicated above, to question Rutlin about whether he knew the lighter belonged to
Sewell before he got it. As an additional matter, even during the above exchange,
Rutlin specifically referred to “my lighter.” Id. at p. 95.
{¶ 73} Since Rutlin had clearly indicated previously that the lighter belonged to
him, that he had bought it at a store, and that he did not meet Sewell and his friends
earlier that day at Riverscape, defense counsel’s failure to further persist does not mean
that counsel was ineffective. There is no indication that Rutlin would have contradicted
his prior testimony, which was well-understood.
{¶ 74} However, even if counsel should have persisted further, the failure to do so
was not prejudicial, because the trial court found Rutlin credible and believed that the
lighter belonged to Rutlin. The trial court also did not find Sewell credible. In view of
these facts, there is no reasonable probability that the outcome of the trial would have
been different.
{¶ 75} Accordingly, the Third Assignment of Error is overruled.
V. Conclusion
{¶ 76} All of Sewell’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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.............
DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Heather N. Jans
Enrique G. Rivera-Cerazo
Hon. Michael W. Krumholtz