[Cite as State v. Coleman, 2014-Ohio-2708.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-P-0072
- vs - :
MARCUS D. COLEMAN, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas.
Case No. 2013 CR 0261.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Matthew P. Gaeckle, 209 South Main Street, Suite 801, Akron, OH 44308 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Marcus D. Coleman, appeals his conviction, following a jury
trial, for robbery, a felony of the second degree. The issues before this court are
whether the conviction was supported by the sufficiency and the weight of the evidence;
whether the prosecutor’s closing argument rose to the level of prosecutorial misconduct;
and whether the trial court abused its discretion in not allowing appellant to explore the
reasons for the victim’s prescription. For the following reasons, we affirm the decision
of the court below.
{¶2} Appellant was charged with aggravated burglary pursuant to R.C. 2911.11
and robbery under R.C. 2911.02. Appellant pled not guilty to both charges, and a jury
trial ensued. The jury rendered a guilty verdict on the robbery charge and a not guilty
verdict on the aggravated burglary charge. Appellant was sentenced to a two-year term
in prison.
{¶3} At trial, the jury heard the testimony of Crystal Zwarton, the victim. Ms.
Zwarton testified that a “white guy” knocked at her door. Ms. Zwarton stated she was
expecting a subpoena in relation to her recently jailed ex-boyfriend. Ms. Zwarton
answered the door and maintained that appellant pushed his way into her apartment
declaring he was there to collect a debt owed by her ex-boyfriend. Ms. Zwarton relayed
that appellant went to her room and picked up a prescription bottle filled with
Oxycodone/Percocet. Ms. Zwarton grabbed the prescription bottle from appellant, and
the pills scattered on her apartment floor. Ms. Zwarton indicated that appellant grabbed
her arm and moved her aside in order to exit her apartment. The grabbing of Ms.
Zwarton’s arm caused bruising. Appellant fled the scene of the incident by vehicle, and
Ms. Zwarton called 9-1-1 to make a report. The jury heard the recording of the 9-1-1
tape.
{¶4} Patrolman Andrew Wert of the City of Ravenna Police Department also
testified. Patrolman Wert arrived at Ms. Zwarton’s apartment and took pictures of the
pills on the ground as well as the pill bottle, which were admitted into evidence.
Patrolman Wert also took a picture of Ms. Zwarton’s arm, which had a small, circular red
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bruise; this picture was also admitted into evidence. Patrolman Wert described Ms.
Zwarton as crying and visibly upset: “Her hands were trembling. She was crying. She
couldn’t stop crying. She was very upset.” Concerned for her pills because she was on
pain management, Ms. Zwarton and Patrolman Wert began picking up the pills. Based
on Patrolman Wert’s count, approximately 29 pills were missing.
{¶5} Mr. Kenneth Park, the co-defendant, also testified. Mr. Park testified that
he and appellant entered Ms. Zwarton’s apartment. Mr. Park stated that appellant
informed him that appellant had to get money or drugs from Ms. Zwarton. Mr. Park
testified that appellant asked Ms. Zwarton if she wanted to get high; Ms. Zwarton
informed the two that she had some “Percs.” She and appellant went into her bedroom.
Mr. Park noted that he heard commotion coming from the bedroom and pills scattering
on the floor. The two then left Ms. Zwarton’s apartment.
{¶6} On appeal, appellant raises the following assignments of error:
[1.] The prosecutor’s remarks during closing argument rose to the
level of prosecutorial misconduct which deprived Mr. Coleman of
his right to a fair trial in violation of his 5th, 6th, and 14th
Amendment Rights under the U.S. Constitution and Article I,
Section 10 of the Ohio Constitution.
[2.] The Trial Court abused its discretion when it sustained the
state’s objection and did not permit Mr. Coleman from exploring a
relevant line of questioning of the victim.
[3.] The trial court erred as a matter of law because the state failed
to establish on the record sufficient evidence to support a
conviction of [robbery] in violation of the Due Process Clause of the
14th Amendment to the U.S. Constitution and Article I, Sections 1,
10 & 16 of the Ohio Constitution.
[4.] Mr. Coleman’s conviction is against the manifest weight of the
evidence in violation of the Due Process Clause of the 14th
Amendment to the U.S. Constitution and Article I, Sections 1, 10 &
16 of the Ohio Constitution.
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{¶7} We first address appellant’s third and fourth assignments of error. In
these assigned errors, appellant argues that his conviction is against both the manifest
weight and sufficiency of the evidence.
{¶8} When measuring the sufficiency of the evidence, an appellate court must
consider whether the state set forth adequate evidence to sustain the jury’s verdict as a
matter of law. Kent v. Kinsey, 11th Dist. Portage No. 2003-P-0056, 2004-Ohio-4699,
¶11, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A verdict is supported
by sufficient evidence when, after viewing the evidence most strongly in favor of the
prosecution, there is substantial evidence upon which a jury could reasonably conclude
that the state proved all elements of the offense beyond a reasonable doubt. State v.
Schaffer, 127 Ohio App.3d 501, 503 (11th Dist.1998), citing State v. Schlee, 11th Dist.
Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994).
{¶9} Under his sufficiency argument, appellant argues the state failed to
present evidence to satisfy the elements of theft and physical harm under the robbery
statute. Appellant was convicted of robbery, in violation of R.C. 2911.02(A)(2), which
states:
{¶10} “No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following:
{¶11} “Inflict, attempt to inflict, or threaten to inflict physical harm on another[.]”
{¶12} The culpable mental state for the act of “inflict[ing], attempt[ing] to inflict, or
threaten[ing] to inflict physical harm” under this statute is recklessness, which is an
essential element of the crime. State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624,
¶14. In finding appellant guilty, the jury was required to find, beyond a reasonable
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doubt, that appellant acted recklessly in his attempt, infliction, or threat of physical harm.
“A person acts recklessly when, with heedless indifference to the consequences, he
perversely disregards a known risk that his conduct is likely to cause a certain result or
is likely to be of a certain nature.” R.C. 2901.22(C).
{¶13} Physical harm to persons means “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).
{¶14} The state presented the recording of the 9-1-1 telephone call made by Ms.
Zwarton, who relayed that an individual came into her apartment and stole her
prescription pills. Further, the jury heard the testimony of Ms. Zwarton, Patrolman Wert,
and Mr. Park. Patrolman Wert testified that after counting each pill strewn on the floor,
approximately 29 pills were missing.
{¶15} Further, the jury heard testimony regarding Ms. Zwarton’s bruise, as well
as the exhibits depicting such. Ms. Zwarton testified that appellant grabbed her arm
and pushed her to the side: appellant “left a thumb print on [her] arm from holding so
tight.” Ms. Zwarton also stated that she injured her leg when appellant nudged her to
the side while fleeing from her apartment. Ms. Zwarton noted that she was very upset
and frightened; this evidence was corroborated by Patrolman Wert’s testimony that she
was unable to stop crying and her hands were trembling.
{¶16} There was sufficient evidence to find appellant guilty of robbery, in
violation of R.C. 2911.02(A)(2).
{¶17} Appellant also argues that his conviction was against the manifest weight
of the evidence. “To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
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credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact ‘lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” Willoughby Hills v. Lyons, 11th Dist. Lake
No. 2012-L-136, 2013-Ohio-4099, ¶18, citing State v. Thompkins, 78 Ohio St.3d 380,
387 (1997). In weighing the evidence in a criminal case, “an appellate court must defer
to the factual findings of the trier of fact regarding the weight to be given the evidence
and credibility of the witnesses.” Id., citing State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus.
{¶18} In challenging the manifest weight of the evidence, appellant argues that
Ms. Zwarton’s testimony contradicts Mr. Parks’ testimony. Appellant maintains that Mr.
Parks testified that appellant and Ms. Zwarton moved voluntarily into the bedroom, while
Ms. Zwarton testified that appellant walked alone into her bedroom. Additionally,
appellant alleges that Ms. Zwarton’s testimony contradicts that of Patrolman Wert. Ms.
Zwarton testified that she began picking up the pills off the floor and putting them in a
pile, but was scolded by Patrolmen Wert. Patrolman Wert, however, did not testify to
this fact, but stated that Ms. Zwarton relayed that she had not touched any of the pills.
While there may be some contradictory statements amongst the witnesses, on a
manifest weight challenge we must defer to the fact finder’s factual determinations on
the weight of evidence and credibility of witnesses. Thompkins, supra, 387.
Furthermore, we note that, in addition to the testimony of the witnesses, the jury listened
to the 9-1-1 recording and reviewed the photographs depicting the scene of the incident
and Ms. Zwarton’s bruised arm. Therefore, evidence was presented that, if believed by
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the fact finder, supported a conclusion that appellant committed the offense for which he
was found guilty.
{¶19} Under these circumstances, we hold that the jury did not “lose its way” or
create a “manifest miscarriage of justice” in finding that appellant was guilty of robbery.
Thompkins, supra, 387.
{¶20} Appellant’s third and fourth assignments of error are without merit.
{¶21} Under his first assignment of error, appellant contends the comments
made by the prosecutor during the state’s closing argument at trial were improper. “The
test regarding prosecutorial misconduct in closing arguments is whether the remarks
were improper and, if so, whether they prejudicially affected substantial rights of the
defendant.” State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing US v. Dorr, 636 F.2d
117, 120 (5th Circ.1981). Appellant points to the following portion of the prosecutor’s
closing argument:
{¶22} “There’s four people there that night; Crystal, her daughter, Kenneth Park
and this Defendant. I believe after you consider all the evidence you’ll find him guilty of
Aggravated Burglary and Robbery. Thank you.”
{¶23} Appellant’s trial counsel immediately objected and, at a sidebar,
maintained the prosecutor improperly commented on the right of a defendant to remain
silent and not testify during trial. Trial counsel requested a mistrial, which was denied.
At sidebar, trial counsel argued that the prosecutor “said there were four people that
knew what was going on and he specifically named Mr. Coleman, which is not allowed.”
(Emphasis added.)
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{¶24} “Comments by prosecutors on the post-arrest silence or refusal to testify
by defendants have always been looked upon with extreme disfavor because they raise
an inference of guilt from a defendant’s decision to remain silent. In effect, such
comments penalize a defendant for choosing to exercise a constitutional right.” State v.
Thompson, 33 Ohio St.3d 1, 4 (1987). Thus, a prosecutor “may jeopardize the integrity
of a trial by commenting on a criminal defendant’s decision not to testify.” State v.
Collins, 89 Ohio St.3d 524, 528 (2000) (citations omitted).
{¶25} Contrary to trial counsel’s argument at sidebar and on appeal, the
prosecutor did not comment on appellant’s right to remain silent and to not testify at
trial. The prosecutor was simply outlining the parties that were present at Ms. Zwarton’s
apartment, which included appellant. Nowhere does the record reveal that the
prosecutor commented on appellant’s failure to testify. We further note there was
substantial evidence of appellant’s guilt, including the testimony of the witnesses and
the admitted exhibits. Thus, any error was harmless beyond a reasonable doubt. See
Thompson, supra, 5.
{¶26} Additionally, the trial court instructed the jury that appellant has a right not
to testify and they were not to consider the fact that he did not testify. The Supreme
Court of Ohio has noted that “[t]he jury is presumed to have followed the court’s
instructions.” State v. Jones, 91 Ohio St.3d 335, 344 (2001), citing State v. Raglin, 83
Ohio St.3d 253, 264 (1998). This instruction weighs against a finding of reversible error.
See Collins, supra, 528.
{¶27} Appellant’s first assignment of error is without merit.
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{¶28} In his second assignment of error, appellant maintains the trial court erred
when it did not allow trial counsel to explore the reasons for Ms. Zwarton’s prescription.
{¶29} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of
the syllabus. A trial court’s decision to exclude evidence will not be overturned absent
an abuse of discretion. State v. Benson, 11th Dist. Portage No. 2001-P-0086, 2002-
Ohio-6942, ¶7, citing State v. Kinley, 72 Ohio St.3d 491, 497 (1995).
{¶30} Here, the trial court was faced with weighing the potentially probative
value of the testimony against its relevance and potential prejudicial value. Trial
counsel attempted to question Ms. Zwarton regarding why she had a prescription for
Percocet. A sidebar was held. The trial court stated the following:
{¶31} “Just ask her a question. The injury that she got was it from this incident
or were you taking something before that? You can ask that. And I don’t think – I don’t
know anything about her personal life and I’m not going to subject her to that. I have no
idea what the answer would be.”
{¶32} Trial counsel then stated, “[t]hat’s why I asked the question, Your Honor.”
{¶33} The court replied, “[w]ell, you’ve got an appealable issue then.”
{¶34} On appeal, appellant maintains he wanted to explore the source of the
prescription to determine if the prescription was a result of the bruise she claimed she
recently received or whether it was a condition that would have affected her ability to
wrestle with appellant when she pulled her prescription bottle from his hand. Appellant
stated that if he would have been allowed to question Ms. Zwarton regarding the
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reasons for her Percocet prescription it would have revealed any injuries she received
prior to the night of the incident or her ability to pull the bottle from appellant’s hand.
{¶35} Although on appeal appellant asserts his reasons for wanting to explore
this line of questioning, trial counsel failed to make such a record below. The trial court
explicitly stated that trial counsel was permitted to ask Ms. Zwarton whether the source
of her bruising and Percocet prescription was from this incident or whether she was
taking Percocet prior to the incident due to a previously-sustained injury. Trial counsel,
however, neither asked this question of Ms. Zwarton nor proffered on the record why
this line of questioning would have led to relevant evidence. We cannot say the trial
court abused its discretion in limiting the questioning of Ms. Zwarton.
{¶36} Appellant’s second assignment of error is without merit.
{¶37} The judgment of the Portage County Court of Common Pleas is hereby
affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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