Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-568298
ATTORNEY FOR APPELLANT Joseph Vincent Pagano
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, Margaret A. Troia Assistant County Prosecutor
BEFORE: McCormack, J., Boyle, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
TIM McCORMACK, J.
(¶1} Defendant-appellant, Kevin Payne, appeals from the judgment of the Cuyahoga County Court of Common Pleas that convicted him of two counts of robbery and sentenced him to four years in prison. He claims his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. He also challenges the court's imposition of court costs. After a careful review of the record, we affirm Payne's convictions of robbery. We reverse, however, the court's imposition of court costs and remand the matter for further proceedings consistent with this opinion.
Substantive Facts and Procedural History
(¶ 2} Payne, 27, was indicted for two counts of robbery: the first count charged him with robbery, in violation of R.C. 2911.02(A)(2), which was accompanied with a notice of prior conviction and with a repeat violent offender specification; the second count charged him with robbery, in violation of R.C. 2911.02(A)(3). The indictment stemmed from a robbery incident on August 14, 2012, in East Cleveland. Payne waived a jury trial. At the bench trial, the state presented the testimony of the victim, the victim's girlfriend, and the police officer who chased him on foot and quickly apprehended him minutes after the victim reported the incident.
The Victim's Testimony
(¶ 3} The sole witness to the robbery is the victim, Kevin Hampton. He testified to the following events on the evening of the incident: A friend dropped him off at Butternut Apartments, an apartment complex in East Cleveland, where his girlfriend, Ericka Garrison, lived. There were about five people standing at a corner and drinking when he arrived. He called Ericka to let him in, but she was at the Family Dollar two blocks away. While he waited for her in the parking lot outside the building's main entrance door, he talked to a man about finding a cable installer for his girlfriend's apartment. Another man, whom Hampton did not know and later identified in court as Payne, walked up and approached both of them. Payne told them "he got loud, " meaning a high potency of weed. Hampton told Payne he did not "mess around, " but the other man went inside the apartment building with Payne.
(¶4} According to Hampton's testimony, minutes later, Payne came out of the building and said "Damn, I'm gonna leave, " because he found out East Cleveland police were in the nearby Shaw High School parking lot. Payne said he was "scared to leave" because he "shot at the police before." Hampton started to walked away, and Payne went back inside the building.
(¶ 5} Hampton testified that a minute later, Payne emerged from the building with a gun and pointed it at Hampton's chest, demanding him to give him "everything, " saying he didn't have a problem shooting him and "going back to New York." Hampton testified that he felt "scared, shocked, and overwhelmed." Although he had $40 with him, he did not give Payne the money, because, right at that moment, he spotted his girlfriend Ericka's vehicle in the turning lane waiting to pull into the apartment complex. Payne turned to look in Ericka's direction as well. Just then, they heard police sirens going off. Payne promptly walked away. Hampton ran past him to the police vehicle to report the robbery.
(¶ 6} As it happened, Officer Telegdy was activating the sirens to pull a driver over for a traffic violation in front of the apartment complex. Hampton told him he was just robbed at gunpoint and pointed to Payne, who was walking across the street. Hampton then watched from the apartment complex as the officer chased Payne on foot through a residential street and a gas station. After the police apprehended Payne, Hampton went inside his girlfriend's apartment to avoid the police's attention, because he had an outstanding warrant for a traffic offense. Shortly after, however, he decided to call the police to report the robbery, an audio recording of which was submitted as a trial exhibit. His girlfriend then drove him to the police station to provide a written statement of the incident.
(¶ 7} Hampton acknowledged he was convicted of drug offenses in 2008 and in 2009. There was a pending charge of tampering with ...