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State v. Flemming9/5/1996
r husband. These articles included his hat, the cigarette papers, the church card and the comb. Defense counsel questioned Mrs. Batista's recollection about the cigarette papers because she testified at a prior proceeding that she could not recall the exact brand used by her husband. This "discrepancy" was brought out at trial, and obviously did not affect the jury's guilt determining process. There was also testimony that the Fulton Road bridge was not filled with debris so as to infer that these belongings were just coincidentally present. The closeness of the articles to Batista's body would allow any reasonable trier of fact to find that they belonged to him.
As to appellant's claim that the items fell from Batista during the struggle, it is just as easy to infer that the items fell during the struggle as appellant was attempting to remove them from Batista's possession. As to the claim that the officers could have caused the items to fall to the ground as they assisted Batista, testimony was offered that the items were already on the ground when the officers arrived at the scene, and moreover that nothing was seen falling from the victim as he was moved to a zone car.
Finally, the fact that none of Batista's belongings were found on appellant or Gant does not conclusively establish that they did not attempt to commit a theft offense. Det. Kunz testified that appellant admitted during his second interview that he and Gant did not get anything from Batista.
When the foregoing evidence is coupled with appellant's statement to Det. Kunz that he only meant to rob Batista, not shoot him, any reasonable trier of fact could find beyond a reasonable doubt that appellant attempted to commit a theft offense, defined in R.C. 2913.02(A), with a deadly weapon in his possession. The jury, therefore, did not lose its way in rendering a guilty verdict to the charged offense of aggravated robbery, R.C. 2911.01(A)(1), and appellant's convictions are thus not against the manifest weight of the evidence. Antill; Martin.
Appellant's eighth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Cuyahoga County 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.
JOSEPH J. NAHRA, J., CONCURS; TIMOTHY MCMONAGLE, J., CONCUR IN JUDGMENT ONLY.
PRESIDING JUDGE SARA J. HARPER
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