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State v. Curley

Court of Appeals of Ohio, Ninth District, Summit

June 28, 2019

STATE OF OHIO Appellee
v.
RICHARD L. CURLEY Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2017-09-3307-A

          ALAN M. MEDVICK, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDGE.

         {¶1} Appellant, Richard Curley, appeals his conviction in the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} At approximately 3:45 a.m. on September 16, 2017, two armed individuals robbed two pedestrians at the intersection of Kirn Avenue and Power Street in Akron. One of the victims pursued the gunmen when they fled on foot, but lost sight of them near the intersection of Power Street and Brown Street. Seconds later, the victim saw a vehicle speed away from a nearby parking lot. At the same time, that victim, who was also a member of the University of Akron off-campus civilian patrol, contacted the University of Akron's dispatch using a walkie-talkie.

         {¶3} A University of Akron ("University") police officer in the vicinity heard the resulting dispatch. As he turned left from Wolf Ledges Parkway to Thornton Street, he noted that an oncoming vehicle traveling "at a good rate of speed" lifted off the ground as it went through the intersection of Thornton Street and Grant Street. The officer observed that the front seat occupants and the vehicle matched the description provided in the dispatch call, so he performed a U-turn and followed the vehicle. When the vehicle accelerated through a yellow light, the officer activated his overhead lights and went through the intersection in pursuit. The vehicle travelled approximately one-half mile before stopping near the intersection of Wolf Ledges Parkway and South Street, where the officer waited for backup to arrive before approaching the vehicle.

         {¶4} At 3:54 a.m., police officers from the City of Akron were dispatched to assist officers from the University with an incident that was reported as "a suspicious person with a gun." When they arrived at the scene of the traffic stop at 3:56 a.m., University police officers had already initiated a traffic stop and detained four individuals suspected of being involved in the robbery. Because the incident had occurred on private property, the University officers turned the investigation over to the officers from the City of Akron, who drove the victims to the scene of the traffic stop to identify the occupants of the vehicle. The victims identified the front-seat passenger, Hayden Fife, as one of the gunmen with certainty. They did not identify the second gunman with certainty. During a search of the vehicle, officers found several items of the victims' personal property and two guns that matched the description of those used in the robbery.

         {¶5} Mr. Curley was charged with two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), accompanied by firearm specifications pursuant to R.C. 2941.145; one count of having weapons under disability in violation of R.C. 2923.13(A)(2); and one count of gross sexual imposition in violation of R.C. 2907.05(A)(1). The State dismissed the charge of gross sexual imposition before trial. A jury found Mr. Curley guilty of both counts of aggravated robbery, but not guilty of the firearm specifications and the remaining charge. The trial court sentenced Mr. Curley to consecutive five-year prison terms, and Mr. Curley filed this appeal. His three assignments of error are rearranged for purposes of discussion.

         II.

         ASSIGNMENT OF ERROR NO. 2

         APPELLANT'S CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE TO SUSTAIN [A] CONVICTION. THE TRIAL COURT ERRED BY DENYING APPELLANT'S CRIM.R. 29 MOTION.

         {¶6} Mr. Curley's first assignment of error argues that the State did not produce sufficient evidence to convict him of aggravated robbery as an accomplice. This Court disagrees.

         {¶7} "Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo." State v. Williams, 9th Dist Summit No 24731, 2009-Ohio-6955, ¶ 18, citing State v Thompkins, 78 Ohio St.3d 380, 386 (1997) The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction Thompkins at 390 (Cook, J, concurring). In reviewing the evidence, we do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proven beyond a reasonable doubt. Id.

         {¶8} R.C. 2911.01(A)(1), which prohibits aggravated robbery, provides that "[n]o person, in attempting or committing a theft offense * * * or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]" A "theft offense" includes a violation of R.C. 2913.02(A), which prohibits theft. R.C. 2913.01(K)(1). Theft occurs when any person, "with purpose to deprive the owner of property or services, * * * knowingly obtain[s] or exert[s] ...


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