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State of Ohio v. Sean M. Swarthout

September 30, 2011

STATE OF OHIO APPELLEE
v.
SEAN M. SWARTHOUT APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 10CR0231

The opinion of the court was delivered by: Whitmore, Judge.

Cite as State v. Swarthout,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Sean Swarthout, appeals from his conviction in the judgment of the Medina County Court of Common Pleas. This Court affirms.

I

{¶2} At approximately 1:00 a.m., Brendan McDonald and Rachel Cihlar walked to their cars together, having just attended the late movie showing at the Regal Cinema. The two were home on break from their respective colleges and had not seen each other for some time, so they stood outside their cars talking in the parking lot. On that evening, McDonald drove a BMW and Cihlar drove a Chevy Cobalt to the theater. Because their cars were positioned next to each other, but facing opposite directions, McDonald and Cihlar stood in between the cars while they spoke. After a short while, they both saw a silver car emerge from the back of the theater at a high rate of speed and abruptly stop in a side parking lot.

{¶3} Swarthout, the driver of the silver car, and his passenger, Lucas Carter, exited the car briefly before reentering it. Swarthout then sped over to McDonald and Cihlar and slammed on the brakes as he pulled close to where they were standing. Swarthout rolled down his window and accused McDonald of "mean mugging" him from across the parking lot. McDonald understood Swarthout to be asking why he had been staring at Swarthout and Carter, so McDonald denied doing so. Both Swarthout and Carter then exited their car, and Carter removed a baseball bat from the backseat. As they approached, Carter used the baseball bat to strike Cihlar's car. Meanwhile, McDonald removed his smartphone from his pocket and began to dial 911.

{¶4} Swarthout ripped McDonald's phone from his hand and informed him that he was "not calling anybody." Believing that Swarthout and Carter meant to rob him, McDonald offered Swarthout his wallet, and Swarthout accepted it. Swarthout asked if there was money in the wallet and looked through it. After finding only two dollars in cash, Swarthout dropped the wallet and money on the ground. Swarthout "flip[ped] through" and "play[ed] with" McDonald's smartphone while Carter approached McDonald. Carter placed his fist on McDonald's chin and knocked his head back several times. Swarthout continued to "look[] through" McDonald's phone during the encounter. He then lofted the phone into the air, causing McDonald to look up. Carter took advantage of McDonald's distraction and punched him in the face. McDonald fell against the BMW before falling to the ground. Swarthout and Carter fled, entered their car, and sped off. McDonald retrieved his phone and soon used it to call the police, giving them a description of Swarthout, Carter, and the silver car.

{¶5} The police received a phone call from another complainant in the area not long after McDonald called them. Specifically, a man named Thomas Archer called to notify them that Swarthout had repeatedly hit him and had kicked his truck before driving away in a Dodge Neon. Swarthout and Carter, an acquaintance of Archer's, found Archer sitting in his vehicle in a parking lot nearby the movie theater. Archer indicated that Swarthout threatened him with a baseball bat and claimed to have a handgun in his car while he tried to get Archer to engage in a fight with him. Based on the descriptions that McDonald and Archer gave, the police were able to apprehend Swarthout and Carter in the parking lot of a gas station in the same area. The police found a baseball bat in the back of their car.

{¶6} On May 20, 2010, a grand jury indicted Swarthout on two counts of robbery, in violation of R.C. 2911.02(A)(2) and R.C. 2911.02(A)(3), respectively. A bench trial took place on August 10, 2010. The trial court granted Swarthout's motion for acquittal on the count arising from R.C. 2911.02(A)(2), but denied the motion on the remaining count. Subsequently, the trial court found Swarthout guilty of robbery and sentenced him to jail and community control.

{¶7} Swarthout now appeals from his conviction and raises one assignment of error for our review.

II

Assignment of ...


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