[Cite as State v. Miller,
2024-Ohio-3182.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
JAMES MILLER : Case No. 2023 CA 00167
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2023 CR 1788
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 21, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE DONOVAN R. HILL
PROSECUTING ATTORNEY 122 Market Avenue North
Dewalt Building, Suite 101
CHRISTOPHER A. PIEKARSKI Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2023 CA 00167 2
King, J.
{¶ 1} Defendant-Appellant, James Miller, appeals his November 16, 2023
robbery conviction in the Court of Common Pleas of Stark County, Ohio. Plaintiff-
Appellee is the State of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 10, 2023, the Stark County Grand Jury indicted Miller on one
count of aggravated robbery in violation of R.C. 2911.01, one count of felonious assault
in violation of R.C. 2903.11, one count of attempted felonious assault in violation of
R.C.2903.11 and 2923.02, one count of resisting arrest in violation of R.C. 2921.33, one
count of criminal trespass in violation of R.C. 2911.21, one count of obstructing official
business in violation of R.C. 2921.31, and one count of possession of a fentanyl-related
compound in violation of R.C. 2925.11. The charges arose from an incident at a Walmart
store.
{¶ 3} On July 31, 2023, a loss prevention officer observed Miller cutting open
packages of baseball/trading cards with a pocketknife, removing the cards from the
packaging, and placing them in a box in his cart. A uniformed security officer approached
Miller and a scuffle between the two ensued. The loss prevention officer was also
present. Knives were observed on the ground coming from Miller, including one hanging
from a lanyard around his neck. The loss prevention officer kicked the knives out of
Miller's reach. The security officer removed the knife from around Miller's neck. Other
officers arrived to assist and Miller was secured in handcuffs. A search of Miller's person
produced two additional knives.
Stark County, Case No. 2023 CA 00167 3
{¶ 4} On October 23, 2023, the trial court dismissed the attempted felonious
assault count at the state's request. Also on October 23, 2023, Miller pled guilty to the
counts of criminal trespass, obstructing, and possession. The trial court found him guilty
of those charges.
{¶ 5} On October 25, 2023, a jury trial commenced on the remaining charges,
aggravated robbery, felonious assault, and resisting arrest. After the state rested, Miller
moved for acquittal under Crim.R. 29. The trial court granted the motion as to the resisting
count, but denied the motion on the remaining two counts. At the state's request, the trial
court instructed the jury on the lesser included offense of robbery in violation of R.C.
2911.02. The jury found Miller not guilty of the two indicted counts, but found him guilty
of the offense of robbery. By judgment entry filed November 16, 2023, the trial court
sentenced Miller to an aggregate indefinite term of a minimum of six years to a maximum
of nine years in prison.
{¶ 6} Miller filed an appeal with the following assignments of error:
I
{¶ 7} "APPELLANT'S CONVICTION OF ROBBERY WAS NOT SUPPORTED BY
LEGALLY SUFFICIENT EVIDENCE."
II
{¶ 8} "APPELLANT'S CONVICTION OF ROBBERY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
I, II
{¶ 9} In his two assignments of error, Miller claims his conviction of robbery was
against the sufficiency and manifest weight of the evidence. We disagree.
Stark County, Case No. 2023 CA 00167 4
{¶ 10} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "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."
Id. at
paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307 (1979). "In
essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to
sustain a verdict is a question of law." State v. Thompkins,
78 Ohio St.3d 380, 386 (1997).
{¶ 11} On review for manifest weight, a reviewing court is to examine 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 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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.
1983). See also Thompkins. The granting of a new trial "should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction."
Martin at
175.
{¶ 12} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).
The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page." Davis v.
Flickinger,
77 Ohio St.3d 415, 418 (1997).
{¶ 13} Miller challenges his conviction of robbery in violation of R.C. 2911.02(A)(1):
"No person, in attempting or committing a theft offense or in fleeing immediately after the
Stark County, Case No. 2023 CA 00167 5
attempt or offense, shall . . . have a deadly weapon on or about the offender's person or
under the offender's control." It is uncontested Miller committed a theft offense. The
question Miller poses is whether he did so with a deadly weapon.
{¶ 14} First, Miller cites Crim.R. 29(A) and argues the trial court erred in not
dismissing the charge of aggravated robbery and in instructing the jury on robbery. He
does not elaborate any further. Miller was not convicted of aggravated robbery and
therefore, the issue is moot. State v. Williams, 74 Ohio St.3d 569, 576 (1996) (defendant
was acquitted of rape, rendering the Crim.R. 29 motion on that charge moot). The
sufficiency of the robbery charge will be addressed further in the opinion.
{¶ 15} Next, Miller argues the elements of aggravated robbery in violation of R.C.
2911.01, specifically arguing there was no evidence that he had a deadly weapon on or
about his person or under his control and either displayed the weapon, brandished it,
indicated that he possessed it, or used it. Appellant's brief at 10. But again, Miller was
not convicted of aggravated robbery, only robbery. The jury did not find Miller guilty of
the elements of aggravated robbery, so whether or not there was evidence that he "either
displayed the weapon, brandished it, indicated that he possessed it, or used it" is
immaterial.
{¶ 16} As to robbery, Miller argues there was no evidence that he had a deadly
weapon on his person during the incident. He argues a knife is not presumed to be a
deadly weapon and the state concedes "a knife is not, per se, a deadly weapon."
Appellee's Brief at 12. A "deadly weapon," for purposes of robbery, "means any
instrument, device, or thing capable of inflicting death, and designed or specially adapted
for use as a weapon, or possessed, carried, or used as a weapon." R.C. 2923.11(A) and
Stark County, Case No. 2023 CA 00167 6
2911.02(C)(1). Miller does not argue that any knives found during the incident were not
capable of inflicting death. Appellant's Brief at 12. Rather, he argues the relevant inquiry
is whether he "possessed, carried, or used his knives as weapons." Id. He argues he
never used his knives as weapons. He used one to open packages and that was his only
use. Thus, he argues, the evidence is insufficient to prove the knives found at the scene
were "deadly weapons."
{¶ 17} The loss prevention officer testified she observed Miller slicing open
baseball/trading card packages with a pocketknife. Vol. II T. at 20-21. Because he
possessed a knife, she decided to ask Miller to leave the store to avoid a confrontation.
Id. at 23-24, 42-43. She asked the security officer working the store to accompany her.
Id. at 24. Upon contact, Miller immediately started resisting and a scuffle ensued between
Miller and the security officer. Id. at 25-26. The loss prevention officer grabbed Miller by
the back of the shirt to try to pull him off of the security officer "and knives start popping
out everywhere, he had a knife around his neck." Id. at 26. She kicked "three to four"
knives out of Miller's reach except for the one around his neck. Id. at 26, 30, 32; State's
Exhibit 4. She was worried about that knife because "it was still attached." Id. at 32.
{¶ 18} On cross-examination, she testified the last time she observed Miller on the
security camera, he had a knife in his hand, but as she approached Miller, she lost the
visual and the situation "went from zero to 100 that quick." Id. at 43-44. She did not know
where that knife was. Id. at 44. She could not say definitively whether Miller had a knife
in his hand during the scuffle. Id. at 48.
{¶ 19} The security officer corroborated the loss prevention officer's testimony. Id.
at 55-56, 58-59. He testified during the scuffle, he was on Miller's back and Miller "was
Stark County, Case No. 2023 CA 00167 7
almost on all fours, but he kept moving his arm up, his left arm, towards that knife to grab
the knife that was around his neck. I was able to move his hand away, grab the knife out
of the sheath and then throw it down an aisle." Id. at 60. From the security officer's
perspective, it looked like Miller was going for the knife around his neck. Id. at 60-61. He
testified he felt Miller's intention was to slice or stab him. Id. at 61. The security officer
was hit with Miller's elbow and received a bloody nose and cuts and swelling on the right
side of his face. Id. at 64-65.
{¶ 20} On cross-examination, the security officer testified he did not see a knife in
Miller's hand upon his initial approach, but after the scuffle started, he observed Miller's
hand on the handle of the knife around his neck. Id. at 68, 71. The security officer
admitted he did not include this fact in his report, but could have included it his "Use of
Force" report. Id. at 73. His report did note that Miller was reaching for "something in the
front of his body" and bystanders told him Miller "had a knife around his neck and tried to
grab it." Id. At no time did the security officer see Miller pull the knife from the sheath.
Id. at 74.
{¶ 21} Miller argues "it is telling that Appellant had opportunities to put a knife in
his hands and attempt to use it as a weapon, but he never did." Appellant's Brief at 13.
But the security officer testified to seeing Miller move his arm up towards the knife around
his neck and at some point, observed his hand on the handle. The security guard was
challenged on cross-examination as to why the hand on the knife was not included in the
report. The jury was free to believe or disbelieve the security officer's testimony and
consider any discrepancies between his testimony and his report.
Stark County, Case No. 2023 CA 00167 8
{¶ 22} Miller conceded to committing a theft offense and was observed with
multiple knives, including one around his neck within his reach. Vol. II T. at 145. During
the scuffle with the security officer, he was observed reaching for that knife and his hand
on the handle. We find sufficient evidence was presented to support a finding that Miller
committed a theft offense with a deadly weapon on or about his person or under his
control.
{¶ 23} After viewing the evidence in a light most favorable to the prosecution, we
find any rational trier of fact could have found the essential elements of robbery were
proven beyond a reasonable doubt.
{¶ 24} Miller's argument on manifest weight is a general assertion that the jury lost
its way. We disagree. We find the jury's verdict was consistent with the weight of credible
evidence presented.
{¶ 25} Upon review, we find sufficient evidence, if believed, to support the
conviction for robbery, and do not find the jury clearly lost its way nor created a manifest
miscarriage of justice.
{¶ 26} Assignments of Error I and II are denied.
{¶ 27} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By King, J.
Delaney, P.J. and
Baldwin, J. concur.
