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Man who tried to steal woman’s prescription medication loses appeal

ANNIE YAMSON
Special to the Legal News

Published: July 14, 2014

The 11th District Court of Appeals recently affirmed the judgment of the Portage County Court of Common Pleas, overruling a defendant’s arguments that his trial was subject to prosecutorial misconduct and that his convictions were against the sufficiency and manifest weight of the evidence.

Marcus Coleman was convicted of second-degree robbery after he tried to steal a woman’s prescription medication.

The victim, Crystal Zwarton, testified at trial that “a white guy” knocked on her door one night.

She answered the door and Coleman pushed his way into her apartment with an accomplice.

He declared he was there to collect a debt from Zwarton’s recently-jailed ex-boyfriend.

Coleman than proceeded to Zwarton’s bedroom where he picked up a bottle of her prescription Percocet.

She attempted to grab the bottle from Coleman and the pills scattered on the floor.

Coleman then forcefully grabbed Zwarton’s arm and moved her aside in order to exit the apartment.

Patrolman Andrew Wert of the city of Ravenna Police Department also testified at trial.

When he arrived, Wert took pictures of the scattered pills on the floor as well as bruising on Zwarton’s arm.

Wert told the court that Zwarton was hysterical and could not stop shaking and crying. She was also concerned for her pills because she was on a pain management regimen.

Kenneth Park, Coleman’s co-defendant, testified that Zwarton walked to her bedroom with Coleman voluntarily, offered the men some “Percs” and asked if they wanted to get high.

After an argument ensued, Park claimed that they left the apartment.

Coleman was found guilty of aggravated robbery and the trial court sentenced him to two years in prison.

In his direct appeal to the 11th District, Coleman argued that the comments made by the prosecutor during the state’s closing remarks were improper.

Coleman pointed a specific portion of the remarks where the prosecutor stated, “There’s four people there that night; Crystal, her daughter, Kenneth Park and this defendant. I believe after you consider all the evidence you’ll find him guilty of aggravated burglary and robbery.”

Coleman’s trial counsel immediately objected and requested a mistrial, maintaining that the prosecutor improperly commented on the right of a defendant to remain silent and not testify at trial.

Coleman presented the same argument in his assignment of error on appeal but the district’s three-judge appellate panel disagreed.

“Contrary to trial counsel’s argument at sidebar and on appeal, the prosecutor did not comment on appellant’s right to remain silent and to not testify at trial,” wrote Presiding Judge Timothy Cannon on behalf of the court of appeals. “The prosecutor was simply outlining the parties present at Ms. Zwarton’s apartment, which included appellant.”

The appellate panel concluded that nowhere in the record did the prosecutor comment on Coleman’s failure to testify.

It proceeded to address Coleman’s claims that his conviction was against the sufficiency and manifest weight of the evidence.

“Under his sufficiency argument, appellant argues the state failed to present evidence to satisfy the elements of theft and physical harm under the robbery statute,” wrote Judge Cannon.

The court of appeals noted that the jury heard Zwarton’s 911 call, the testimony of Wert and testimony regarding Zwarton’s bruising.

It held that there was sufficient evidence to support a conviction of robbery.

Likewise, the panel ruled the conviction was supported by the weight of the evidence despite conflicting witness testimony from Park.

“In weighing the evidence in a criminal case, an appellate court must defer to the factual findings of the trier of fact regarding the weight to be given the evidence and credibility of the witnesses,” wrote Judge Cannon.

After reviewing the record, the appellate panel concluded that the evidence presented, if believed by a jury, supported a conclusion that Coleman committed the offense for which he was found guilty.

The judgment of the Portage County court was affirmed with judges Diane Grendell and Thomas Wright concurring.

The case is cited State v. Coleman, 2014-Ohio-2708.

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