State v. Sewell

Citations

• 2018 Ohio 2027
• 112 N.E.3d 1277

Syllabus

The trial court did not err in denying Appellant's motion for acquittal. Appellant 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 Appellant had intent to deprive the victim of a lighter and caused physical harm to the victim as he was committing the theft or fleeing immediately after the theft. The State also did not change its theory of the case during trial. In addition, Appellant's 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 Appellant credible. We defer to the trier of fact on credibility issues, and there was no manifest miscarriage of justice. 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 of particulars, there is no reasonable probability that the result of the trial would have been different. Appellant 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 Appellant credible. Trial counsel also 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. Affirmed.