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State of Ohio v. Michael J. Underwood

October 21, 2011

STATE OF OHIO : PLAINTIFF-APPELLEE :
v.
MICHAEL J. UNDERWOOD
DEFENDANT-APPELLANT :



Trial Court Case No. 10-CR-281 (Criminal Appeal from (Common Pleas Court)

The opinion of the court was delivered by: Fain, J.

Cite as State v. Underwood,

OPINION

{¶1} This matter is before the Court on the direct appeal of Defendant-appellant Michael Underwood from his conviction and sentence for Aggravated Robbery. Underwood argues that his conviction is against the manifest weight of the evidence and that he was denied the effective assistance of trial counsel. He maintains that the trial court erred in refusing to allow police dispatch records into evidence and that the trial court erred in overruling his motion for a judgment of acquittal because the jury verdicts were inconsistent. Underwood also claims that the State committed prosecutorial misconduct during closing arguments.

{¶2} We conclude that Underwood's conviction is not against the manifest weight of the evidence and that he was not denied the effective assistance of trial counsel. We conclude that the trial court did not err in its evidentiary rulings, nor did the court err in denying Underwood's motion for acquittal. We also conclude that the State did not commit prosecutorial misconduct. Accordingly, the judgment of the trial court is Affirmed.

I

{¶3} On a January evening in 2010, Underwood and his girlfriend Amber Shatto were smoking crack cocaine at her trailer. Underwood left around 8:00 or 9:00 p.m. and did not return until 5:00 a.m. the next morning.

{¶4} Shortly before 10:00 p.m. on the same evening, Kurtis Wallace was headed to The Men's Club. As he drove, he spoke on the phone with Shatto, whom he had recently met, and told her where he was going. In the parking lot of the club, Wallace was approached by Underwood, whom Wallace had known for many years. Underwood asked Wallace for a couple of dollars. As Wallace pulled his money out of his pocket, he saw that Underwood was holding a black handgun. Underwood demanded that Wallace give him all of his money. Underwood grabbed Wallace's $270 and ran away, heading into a nearby trailer park. Initially, Wallace chased Underwood, but then stopped and called the police.

{¶5} When deputies arrived on the scene, Wallace explained what had occurred and provided the officers with Underwood's name and his physical description. A canine unit was requested, and the canine was able to track Underwood to the area of a trailer in which his girlfriend Amber Shatto lived. A black coat was found in the street next to the trailer; Wallace identified it as being the coat Underwood was wearing during the robbery. However, the deputies were unable to find Underwood that night.

{¶6} The following day, Wallace identified Underwood in a photo spread. Underwood was arrested a couple of weeks later.

{¶7} Underwood was indicted on one count of Aggravated Robbery with a firearm specification. A jury found him guilty of Aggravated Robbery, but not guilty of the specification. Underwood filed a motion for a judgment of acquittal, arguing that the jury's verdicts were inconsistent. The trial court overruled his motion and sentenced Underwood to five years incarceration. From his conviction and sentence, Underwood appeals.

II

{¶8} Underwood's First Assignment of Error is as follows:

{¶9} "THE GUILTY JURY VERDICT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

{¶10} In his First Assignment of Error, Underwood argues that his conviction for Aggravated Robbery is against the manifest weight of the evidence. When reviewing a judgment under a manifest weight standard of review, "[t]he court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which evidence weighs heavily against the conviction." State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.

{ΒΆ11} Underwood was convicted of Aggravated Robbery, in violation of R.C. 2911.01(A)(1), which states in pertinent part, "No person, in attempting or committing a theft offense * * *, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control and either ...


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