FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2016 04 1206
M. MEDVICK, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, Judge.
Appellant, Daniel L. Bitting, appeals from his convictions in
the Summit County Court of Common Pleas. This Court affirms.
Mr. Bitting entered the Barberton Mini Mart and purchased a
Black & Mild cigar. Seconds later, Mr. Bitting's
juvenile cousin, T.J., entered the store, pointed a gun at
the clerk, demanded all of the money, and threatened to shoot
her. Mr. Bitting did not leave the store during the robbery,
but stood near T.J. and paced back and forth with his hands
up. Mr. Bitting went to the front door at one point and
looked outside, but he did not leave. After the robbery, Mr.
Bitting and T.J. left the store within seconds of one another
and ran off in the same direction.
Mr. Bitting was arrested and charged with complicity to
commit aggravated robbery. The indictment was later
supplemented with a complicity to commit robbery charge and
two repeat violent offender specifications. The repeat
violent offender specifications were bifurcated and the case
proceeded to trial on the two complicity charges. After a
jury trial, Mr. Bitting was convicted of both complicity to
commit aggravated robbery and complicity to commit robbery.
The trial judge then found Mr. Bitting to be a repeat violent
offender. The two complicity counts were found to be allied
offenses of similar import and were merged for sentencing.
Mr. Bitting was sentenced to a mandatory term of six years in
prison. No sentence was imposed for the repeat violent
Mr. Bitting now appeals from his convictions and raises three
assignments of error for this Court's review.
OF ERROR ONE
CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE TO SUSTAIN
CONVICTION. THE TRIAL COURT ERRED BY DENYING APPELLANT'S
CRIM.R. 29 MOTION.
In his first assignment of error, Mr. Bitting argues that
there was insufficient evidence to show that (1) he assisted
in the robbery in any way, and (2) the BB gun was a deadly
weapon capable of inflicting death. We disagree with both
"We review a denial of a defendant's Crim.R. 29
motion for acquittal by assessing the sufficiency of the
State's evidence." State v. Frashuer, 9th
Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. "A
sufficiency challenge of a criminal conviction presents a
question of law, which we review de novo." State v.
Spear, 9th Dist. Summit No. 28181, 2017-Ohio-169, ¶
6, citing State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). "Sufficiency concerns the burden of production
and tests whether the prosecution presented adequate evidence
for the case to go to the jury." State v.
Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211,
¶ 25, citing Thompkins at 386. "The
relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proven beyond a reasonable doubt." Id., quoting
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. But, "we do not resolve evidentiary
conflicts or assess the credibility of witnesses, because
these functions belong to the trier of fact." State
v. Hall, 9th Dist. Summit No. 27827,
2017-Ohio-73, ¶ 10.
Mr. Bitting was convicted of complicity to commit aggravated
robbery and complicity to commit robbery. The ...