Youngstown Daily Legal News

Man in robbery spree loses appeal

ANNIE YAMSON
Special to the Legal News
Published: July 28, 2015

A panel of three judges in the 11th District Court of Appeals ruled recently that Michael McCollins was properly convicted on two counts of aggravated robbery and a firearm specification.

Appealing from the judgment of the Portage County Court of Common Pleas, McCollins asserted his convictions were against the manifest weight and sufficiency of the evidence and he should have been granted a judgment of acquittal.

Case summary states that McCollins was at the home of Tre Nichols with Gary Bacchus and Chris Mason in the early afternoon of Oct. 26, 2013.

According to Nichols’ testimony at trial, one of the men said they were going to “hit a lick,” meaning rob people, so the four men drove to Kent in Mason’s car and eventually went to a party on College Street.

Sometime between 2 and 3 a.m. McCollins and Bacchus were speaking with Dustin Friel and Joseph Bevacqua on the back porch while Mason and Nichols were on the lower steps.

Bevacqua testified that “the short black guy” hit him in the face twice with a gun, went into his pockets and grabbed his phone.

Friel maintained that the “bigger black guy” was the one who robbed Bevacqua and the shorter man was the one who robbed him.

Pursuant to proffered plea agreement, Bacchus testified for the state at McCollins’ trial.

He explained that he and McCollins robbed two “white guys” at the College Street party after asking for marijuana.

Bacchus consistently denied that McCollins was carrying a gun and claimed that McCollins only punched one of the victims and took his phone.

Later that same night, Bacchus and McCollins made their way to Main Street where, according to McCollins, he purchased a gun from a man named Terry. The police were never able to confirm that information.

Eventually, the four men reunited and drove around Kent until Bacchus and McCollins spotted three people — Jennifer Starner, Tyler Beal and Scott Kennedy — walking down the street.

Bacchus testified that he asked to be let out of the car so that he could rob those people.

Beal testified that he saw a short male with a hooded sweatshirt drawn over his face following him and his friends.

When they reached a post office, Beal claimed that the man in the hooded sweatshirt pulled out a dark revolver with a wooden handle and said “give me everything you have.”

Beal took everything out of his pockets and put it on the ground, Starner dropped her purse but Kennedy, who was wearing a gorilla suit as a Halloween costume, informed his robber that he did not have any pockets.

Beal stated that, at that point, another man appeared out of the alleyway and kit Kennedy in the face near his jaw, causing Kennedy to fall to the ground.

After ripping Kennedy’s pants and taking his wallet and phone, the two assailants ran away.

The testimony of Starner, Kennedy and Bacchus corroborated Beal’s testimony.

Bacchus admitted that he was the man who hit the man in the gorilla suit and McCollins was the one who initiated the robbery.

McCollins made several statements to the police after his arrest including that it was possible that he had a gun on the night of the robberies, but he claimed that he was too intoxicated to remember.

He did admit to punching and robbing someone at a party.

McCollins never testified in his defense, instead relying on the victims’ inconsistent descriptions of the height and weight of their assailants as a defense strategy.

Nevertheless, the jury found McCollins guilty of two counts off aggravated robbery and a firearm specification and the trial court subsequently sentenced him to 10 years for the robberies and three years for the specification.

On direct appeal to the 11th District court, McCollins challenged the sufficiency and manifest weight of the evidence supporting his conviction.

According to McCollins, Bevacqua and Friel both alleged that the smaller individual robbed them, therefore it could not have been him.

He also claimed he was too intoxicated to form the requisite mental state to commit robbery.

“In determining whether evidence is sufficient to sustain a conviction, the reviewing court asks whether reasonable minds could differ as to whether the material element of a crime has been proven beyond a reasonable doubt,” Judge Thomas Wright wrote on behalf of the court of appeals. “In contrast, a manifest weight challenge requires the reviewing court to play the role of a thirteenth juror.”

The appellate panel held that there was sufficient evidence to prove that McCollins carried out the robberies.

It pointed out that Bacchus’ testimony, combined with McCollins’ statements to the police, confirmed that McCollins used force to steal items on College Street, that he purchased a gun from Terry and that he then robbed three other people.

“Furthermore, although Bacchus was potentially biased against McCollins, his testimony is largely corroborated by the victims,” Wright wrote. “Moreover, the glovebox contained stolen items and McCollins was the front seat passenger.”

Wright also held that the jury was free to credit Bacchus’ testimony and convict McCollins and that voluntary intoxication is never a defense to aggravated robbery.

The court of appeals went on to overrule McCollins’ final claim that his statements to the police should have been suppressed at trial.

It held that McCollins was given proper Miranda warnings before he made those statements.

“The judgment of the trial court is affirmed,” Wright concluded.

Presiding Judge Timothy Cannon and Judge Diane Grendell joined Wright to form the majority.

The case is cited State v. McCollins, 2015-Ohio-2815.

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