[Cite as State v. Grooms,
2024-Ohio-6021.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113739
v. :
GERALD GROOMS, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 26, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-681450-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Courtney M. Kirven, Assistant Prosecuting
Attorney, for appellee.
The Law Office of Schlachet and Levy and Eric M. Levy,
for appellant.
EMANUELLA D. GROVES, P.J.:
Defendant-appellant, Gerald Grooms, Jr. (“Grooms”), appeals, alleging
that the trial court erred in its restitution order, his conviction is against the manifest
weight of the evidence, and his sentence is contrary to law. We affirm for the
following reasons.
Procedural History and Facts
Grooms was indicted on one count of theft in violation of R.C.
2913.02(A)(1), a fifth-degree felony, for conduct that occurred on May 5, 2023. On
January 10, 2024, the trial court continued the scheduled trial at the request of
Grooms, noting that the reason for the continuance was for “[Grooms] to make full
restitution of $4,300 to Saks 5th Avenue or the trial will begin . . . .” (Journal Entry,
01/10/24.) A jury trial commenced on February 21, 2024. The State called three
witnesses, and the following evidence was adduced.
On May 5, 2023, Grooms and a female accomplice entered Saks 5th
Avenue and went to the handbag display. An employee observed Grooms putting
two Burberry designer bags, valued at $2,150 each, in a Dillard’s bag. When the
employee attempted to confront Grooms, he told her to mind her own business and
exited the store. The employee observed Grooms and the accomplice getting into a
gray Nissan. Beachwood police investigated, discovered that Grooms was the owner
of the gray Nissan, and obtained video footage of him in Saks 5th Avenue with his
accomplice. The store’s video footage placed Grooms at the handbag display.
The jury returned a guilty verdict, and Grooms was sentenced. The
sentencing entry states, “The court considered all required factors of the law. The
court finds that prison is consistent with the purposes of R.C. 2929.11. The court
imposes a prison sentence at Lorain Correctional Institution of 11 months.” (Journal
Entry, 02/22/24.) Grooms appealed and raised the following assignment of errors.
Assignment of Error No. 1
The trial court committed plain error in ordering restitution prior to
any trial or conviction.
Assignment of Error No. 2
Grooms’ theft conviction was entered against the manifest weight of the
evidence.
Assignment of Error No. 3
The trial court sentenced Grooms clearly and convincingly contrary to
law where it did not consider the principles and purposes of felony
sentencing or applicable sentencing factors prior to imposing sentence.
Law and Analysis
Restitution
Grooms argues that the trial court committed plain error in ordering
restitution prior to any trial or conviction. Plaintiff-appellee, State of Ohio (“State”),
responds that the order of restitution was made in plea-negotiation efforts and
indicated that if restitution was not paid then trial would proceed.
It is well established in Ohio that a court of record only speaks through
its journal. Reynolds v. Nibert, 2002-Ohio-6133, ¶ 13 (4th Dist.). See In re Adoption
of Gibson,
23 Ohio St.3d 170 (1986); accord Schenley v. Kauth,
160 Ohio St. 109
(1953), paragraph one of the syllabus. Here, a review of the trial court’s journal
clearly indicates that either restitution was to be paid, or the trial would proceed.
Since Grooms’ trial proceeded, the trial court’s January 10, 2024 journal entry is
moot and the restitution order is no longer in effect. We further note that the trial
court’s sentencing entry is silent as to restitution. Consequently, there is no existing
restitution order. Accordingly, we overrule Grooms’ first assignment of error.
Manifest Weight
In his second assignment of error, Grooms argues that the weight of the
evidence did not establish Saks 5th Avenue was the owner of the two purses that are
the subject of the theft. Grooms claims there was only testimony that Saks 5th
Avenue held the purses in inventory. Grooms further asserts that the value of the
purses could be calculated differently because purses that are sold are not taken
from the display, rather they are sold from the back.
In order to evaluate whether a judgment or verdict is against the
manifest weight of the evidence, an appellate court must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether the jury clearly lost its way in resolving conflicts
in the evidence and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Jordan, 2023-Ohio-3800, ¶ 17,
citing State v. Thompkins,
78 Ohio St.3d 380, 387 (1997), and State v. Martin,
20
Ohio App.3d 172 (1st Dist. 1983). The Ohio Supreme Court has repeatedly held that
“[a] manifest-weight challenge should be sustained ‘“‘only in the exceptional case in
which the evidence weighs heavily against the conviction.’”’” State v. Nicholson,
2024-Ohio-604, ¶ 71, quoting Thompkins at
id., quoting Martin at 175; State v.
Hundley,
2020-Ohio-3775, ¶ 80.
R.C. 2913.02(A)(1) provides: “No person, with the purpose to deprive
the owner of property . . . shall knowingly obtain or exert control over either the
property . . . without the consent of the owner or person authorized to give
consent[.]” According to R.C. 2913.01(D), “owner” means “unless the context
requires a different meaning, any person, other than the actor, who is the owner of,
who has possession or control of, or who has any license or interest in property . . .,
even though the ownership, possession, control, license, or interest is unlawful.”
Based on our review of the record, this is not the exceptional case
contemplated by the Ohio Supreme Court where the evidence weighs heavily against
conviction. Two Saks 5th Avenue employees testified that the theft took place at
Saks 5th Avenue and from its display table. Thus, Saks 5th Avenue was the “owner”
because it had possession or control of the purses and had a license or interest in the
property. The Saks 5th Avenue employees also testified that each purse was valued
at $2,150. Accordingly, we cannot say that the jury clearly lost its way in resolving
conflicts in the evidence and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Accordingly, Grooms’ second
assignment of error is overruled.
Sentencing
In his third assignment of error, Grooms argues that the trial court’s
sentence was contrary to law because it did not consider the principles and purposes
of felony sentencing or the applicable sentencing factors prior to imposing a
sentence.
A sentence is clearly and convincingly contrary to law if (1) the
sentence falls outside the statutory range for the particular degree of offense, or (2)
the trial court failed to consider the purposes and principles of sentencing set forth
in R.C. 2929.11, and the sentencing factors set forth in R.C. 2929.12. State v. Evans,
2021-Ohio-1411, ¶ 12 (8th Dist.), citing State v. Thompson,
2018-Ohio-1393, ¶ 7 (8th
Dist.).
With respect to the first prong, the trial court sentenced Grooms to 11
months on his fifth-degree felony theft charge. Under R.C. 2929.14(A)(5), the term
of imprisonment for a felony of the fifth degree is “a definite term of six, seven, eight,
nine, ten, eleven, or twelve months.” Consequently, the trial court’s sentence of 11
months was within the statutory range.
The second prong addresses whether the trial court failed to consider
the purposes and principles of sentencing under R.C. 2929.11 and 2929.12.
Under R.C. 2929.11(A), when sentencing for a felony, the trial court “shall be guided
by the overriding purposes of felony sentencing” i.e., (1) “to protect the public from
future crime by the offender and others,” (2) “to punish the offender,” and (3) “to
promote the effective rehabilitation of the offender using the minimum sanctions
that the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources.” Additionally, R.C.
2929.11(B) states:
A sentence imposed for a felony shall be reasonably calculated to
achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.
R.C. 2929.12 provides further instruction, detailing seriousness and recidivism
factors the trial court should consider when imposing a felony sentence.
However, “neither R.C. 2929.11 nor 2929.12 requires a trial court to
make any specific factual finding on the record.” State v. Phillips, 2021-Ohio-2772,
¶ 8 (8th Dist.), citing State v. Jones,
2020-Ohio-6729, ¶ 20, citing State v. Wilson,
2011-Ohio-2669, ¶ 31; State v. Arnett,
88 Ohio St.3d 208, 215 (2000). While the
trial court must consider the factors delineated in R.C. 2929.11 and 2929.12, it “is
not required to make specific findings on the record regarding its consideration of
those factors, even when imposing a more-than-minimum sentence.” Phillips at
id.,
citing State v. Keith,
2016-Ohio-5234, ¶ 11 (8th Dist.). Furthermore, the trial court
is presumed to have considered the factors unless the defendant affirmatively
demonstrates otherwise.
Id., citing State v. Wright,
2018-Ohio-965, ¶ 16 (8th Dist.).
Here, Grooms claims that the trial court failed to consider the
principles and purposes of felony sentencing pursuant to R.C. 2929.11 and the
sentencing factors under R.C. 2929.12 prior to imposing his sentence. Grooms
argues that because “no consideration was actually given,” “no findings were
actually made rendering the sentence contrary to law.” Grooms also compares his
sentence to his accomplice’s two-year community-control sentence. We find
Grooms’ arguments are without merit.
Before sentencing, the trial court stated, “You’ve got a very extensive
record. You have at least 20 priors, many of which included theft. We talked about
this before trial.” This statement demonstrates that the court considered Grooms’
lengthy criminal background. The trial court further stated in its sentencing entry
that it “considered all required factors of the law.” Since no findings are required,
Grooms cannot support his claim that the trial court did not consider the purposes
of sentencing and sentencing factors prescribed by R.C. 2929.11 and 2929.12.
Consequently, we cannot say that Grooms’ sentence is contrary to law. Accordingly,
Grooms’ third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending 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.
________
EMANUELLA D. GROVES, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., and
ANITA LASTER MAYS, J., CONCUR
