Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-633607-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Michael Lisk and Michael Barth, Assistant
Prosecuting Attorneys, for appellee.
E. Grube, for appellant.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE
1} D'Angelo Jamar Tyus appeals his convictions
for robbery, abduction, and theft entered upon a jury verdict
of guilt. The trial court imposed a three-year, aggregate
term of imprisonment. We affirm.
2} Tyus and codefendant Myranda Hyde knew the
victim. The three were together at a pavilion behind a church
in Parma Heights, Ohio, sharing an alcoholic beverage.
Surveillance video captured the entire encounter. According
to the victim, Tyus and Hyde were angered by comments the
victim made earlier in the day. After a brief period of
conversation, Tyus and Hyde physically attacked the victim
for approximately 30 minutes. The assault was interspersed
with Tyus and Hyde rummaging through the victim's
possessions and concluded with the codefendants walking away
after Tyus took a cigarette or other similar tobacco product
from the victim's possession. After the attack ceased,
the victim's cell phone, pocket change, and some of his
tobacco products were determined to be missing. Hyde was
found in possession of the victim's cell phone and had
used it to harass the victim and his friend following the
3} During the jury's deliberation, the jury
foreman asked the trial court for clarification on the
definition of robbery that was provided in the general
instructions. The trial court provided a written response,
but it does not appear from the record that the parties were
offered an opportunity to review the response before it was
sent to the jury. The jury was then in possession of the
original instructions and the trial court's written
response in continuing its deliberation.
4} In this appeal, Tyus claims that the trial court
erred by giving an incorrect and misleading instruction on
the elements of robbery that ultimately confused the jury.
5} It is well settled that "[j]ury instructions
must 'correctly and completely state the law.'"
State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562,
114 N.E.3d 1092, ¶ 123, quoting Groob v.
KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d
1170, ¶ 32. In reviewing jury instructions, it must be
decided "not only whether the instruction at issue is
correct in the abstract but also whether it is potentially
misleading." Id., citing State v.
White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939,
¶ 52. If an appellate court concludes that an
instruction is ambiguous, it must then be determined
"'whether there is a reasonable likelihood that the
jury has applied [it] in a way' that violates the
Constitution." Id., quoting Estelle v.
McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991), and Boyde v. California, 494 U.S. 370, 380,
110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). No single instruction
should be reviewed in isolation. Id. The particular
jury instruction being challenged must be viewed "in the
context of the overall charge." Id., citing
State v. Madrigal, 87 Ohio St.3d 378, 396,
2000-Ohio-448, 721 N.E.2d 52.
6} The jury was initially instructed that before it
could find Tyus guilty of robbery, it must be found, beyond a
reasonable doubt, that Tyus "while attempting
or committing a theft offense, or in fleeing immediately
after a theft attempt or offense, * * * did inflict
or attempt to inflict or threaten to inflict physical
harm" on the victim. (Emphasis added.) In seeking
clarification, the jury asked the trial court the following
question: "[i]n the definition [of robbery], does it
mean the 'attempting or committing a theft offense must
come [first], or be the primary aim of the defendant? Or
[sic] does it include the act at 'any point' during
the altercation?" The trial court offered the following
[t]he statute permits you to consider alternate methods for
the physical harm element - i.e., inflicting, attempting to
inflict or threatening to inflict physical harm - and
alternate methods for the temporal requirement - i.e.,
during or in fleeing immediately after. The statute
does not require you to decide the "primary aim" or
that events happened in any particular order. It only
requires that you must find all elements beyond a reasonable
7} Tyus claims that the jury was permitted to
conclude that the theft occurred as a mere afterthought to
the undisputed infliction of physical harm that occurred
throughout the victim's ordeal. According to Tyus, the
theft of the tobacco product as he was departing did not
occur concurrent with the infliction of physical harm and the