State v. GriggsState v. Griggs
Allison S. Breneman, 1220 West Sixth Street, Suite 303, Cleveland, OH 44113 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Valaugn D. Griggs, appeals his convictions and sentence, following a trial to the court, in the Lake County Court of Common Pleas, for ten counts of Robbery. The issues to be determined by this court are whether Robbery convictions are against the weight and sufficiency of the evidence when a witness identifies a perpetrator other than the defendant and the co-defendant’s testimony was inconsistent on various details, and whether it is improper when a defendant receives a
{¶2} On August 8, 2014, Griggs was indicted by the Lake County Grand Jury for five counts of Robbery, felonies of the second degree, in violation of
{¶3} A trial to the court was held in this matter on October 6-8, 2014. The following testimony and evidence were presented:
{¶4} Henry Ivezzy, Griggs’ stepbrother, testified regarding his participation with Griggs in four robberies, explaining that his testimony was given in cooperation with the State. On the weekend prior to June 2, 2014, Griggs told Ivezzy he needed money to pay bills and brought up the idea of doing a robbery. On June 2, Griggs told Ivezzy that he and another person had robbed a GP Express in Parma, using a gun.
{¶5} On June 2, shortly after 1 p.m., Meghna Patel was working in her husband’s gas station, GP Express. Two black males came in, one holding a gun, and ordered her to give them her money. The one without the gun grabbed the drawer and put it in a bag.
{¶6} Patel testified that she later looked at a photo lineup. During this testimony, there was a discussion on the record that the State was unaware of a photo lineup and it had not been provided by police, and, thus, had not been provided in discovery to Griggs’ counsel. Defense counsel moved to dismiss “if there is an actual identification of somebody other than my client.” Detective Thomas Connor met with
{¶7} Connor testified that after Griggs was arrested, he generated a photo lineup with Griggs’ picture, which was shown to Patel by another detective, John Porec. Porec presented the photo lineup to Patel, she selected an individual in the lineup, and Porec returned the lineup to Detective Connor. Connor explained that some records relating to the lineup had been misplaced and he was unsure why the prosecutor had not received this information prior to trial.
{¶8} After Porec’s testimony, cross-examination of Patel resumed. She testified that the signature on the copy of the photo lineup in evidence was her husband’s. She did testify, however, that she reviewed a photo lineup and selected an individual who was not Griggs.
{¶9} Detective Connor then testified that he did show either Patel or her husband still shots from the robbery in Macedonia but that no photo lineup was prepared other than the one showed to Meghna Patel.
{¶10} Michael Rolle, who works at the Fraternal Order of Police located near GP Express, testified that on June 2, while sitting inside of his parked car, he saw two black men wearing hats and carrying a “package” running to a silver Mercedes with temporary tags in the area of the nearby DMV parking lot. He identified the car as an E Class Mercedes after calling a dealer and describing it. He also noted that he saw a police canine follow the robbers’ path from the gas station to where the Mercedes had been parked.
{¶12} After Griggs told Ivezzy that he had received $1,000 from the Parma robbery, Ivezzy decided to also participate in robberies. The two agreed to split the money obtained equally.
{¶13} According to Ivezzy, on June 2, at approximately 7:50 p.m., the two men went to a Speedway in Macedonia. Griggs asked an employee inside for directions to a liquor store, the two men exited, waited for customers to leave, and reentered. Ivezzy began to purchase a Mountain Dew, pulled out a gun, and robbed the cashier. Ivezzy, pursuant to Griggs’ instruction, took the whole drawer and put it in a pillowcase held by Griggs. Ivezzy testified that the gun used in the robbery was a BB gun that belonged to Griggs.
{¶14} Anesha Rogers, a Speedway employee, testified that the man in a yellow hoodie (which Ivezzy admitted was him), came to the register to make a purchase, held a gun toward her and asked for money. Both men threatened to shoot her before taking the entire cash register tray. Regarding Griggs, Rogers believed that he looked “similar” to the second man who robbed the store but she could not positively identify him.
{¶15} Fingerprints recovered by the Macedonia police were tested by Sarah Pivovar, a forensic scientist at BCI. She was able to determine that fingerprints found
{¶16} Later on June 2, the pair robbed the Ohio Gas gas station in Wickliffe, following a similar pattern as the prior robbery. They entered, requested directions, exited, returned, and began to purchase items. Ivezzy then pulled out the gun and took the money tray when the register was opened, which was placed in the pillowcase held by Griggs.
{¶17} Timothy Gordon, an employee at Ohio Gas, testified that, at around 10:00 p.m. on June 2, two men came into the store, asking for directions. They left and returned, purchasing gum and a Black and Mild cigar. The men placed money on the counter, Gordon opened the drawer, and the man wearing a yellow hoodie with the word “Thiel” on it, pushed a gun into his chest, telling him not to move. One of the men grabbed the tray from the drawer and put it into a bag. Both men wore hats and sunglasses.
{¶18} Anthony DiDona, a Patrolman at the Wickliffe Police Department, responded to the Ohio Gas robbery. He was flagged down near the gas station and told two black males were running eastbound, but no suspects were located that night.
{¶19} Dr. Karen Zavarella, a DNA analyst at the Lake County Crime Laboratory, testified that the DNA evidence collected from the gas station door by the Wickliffe Police Department did not have sufficient DNA to perform an analysis.
{¶20} Eon testified that, less than 45 minutes before the Wickliffe robbery, calls made from Griggs’ cell phone placed it near a tower in Wickliffe.
{¶22} Hengst disseminated photographs of the suspects and was contacted by an officer from Mentor, who provided the photograph to the football coach at Thiel College. This led to an investigation of Ricardo Mardamus, who was eventually excluded as a suspect based on his lack of a vehicle matching the description and an alibi.
{¶23} Wickliffe Police Detective Dan Moreland stated that another reason for ruling out Mardamus was that, although some individuals such as his coach believed he may have been the robber without the gun, that man had no facial hair, while Mardamus had thick facial hair, which was present three days after the robberies.
{¶24} Chief of the Thiel College Police Eric Allen testified for the defense. Allen became aware that a suspect in the robberies was wearing a Thiel sweatshirt and explained that Thiel College is a small private college in Pennsylvania. Allen provided the name of Mardamus as a potential suspect. Allen believed Mardamus may have committed the robberies based on the fact that he drove a silver or green Chrysler 300 similar to the initial police description, and the man in the videos of the robbery, holding the money bag, resembled him.
{¶25} Hengst later received an anonymous tip leading to the discovery of Ivezzy’s identity. Hengst verified that Ivezzy was working from 11:30-3:00 p.m. on June 2. Ivezzy’s employer verified that he wore a Thiel sweatshirt like the one in the robbery,
{¶26} Following the robberies on June 2, Ivezzy and Griggs went to Horseshoe Casino to gamble. Mickey Atchley, a gaming enforcement agent, verified the men’s presence based on casino records.
{¶27} According to Ivezzy’s testimony, on June 4, the two robbed a Sunoco in Independence. They followed the same pattern of initially entering the store to “case” it, exited, and then performed the robbery, pointing the gun at the cashier, removing the register drawer, and placing the money in a pillowcase.
{¶28} Frank Kordas, a Sunoco employee, described the robbery and stated that the gun was held to his stomach. No physical evidence was recovered by the Independence Police Department.
{¶29} On June 6, the two men robbed Star Value in Cleveland at a little after 2:00 p.m., which followed the same fact pattern as the prior robbery, according to Ivezzy and employee Michael Napier.
{¶30} Eon testified regarding a text message exchange between Ivezzy and Griggs’ phones at approximately 12:20 p.m. on June 6, where Griggs inquired as to Ivezzy’s location, Ivezzy responded “at the crib,” and Griggs stated he was “about to pull up.”
{¶31} Surveillance camera video of varying quality was played and submitted into evidence from the robberies the two men committed together, which was generally consistent with Ivezzy’s description of the robberies.
{¶33} At the conclusion of the testimony, Griggs’ counsel made a Crim.R. 29 motion and a motion to dismiss under Brady based on the fact that the defense did not receive the results of the lineup. These were denied by the trial court.
{¶34} On October 14, 2014, the court found Griggs guilty of each of the ten counts of Robbery, as charged in the Indictment. It found him not guilty of Engaging in a Pattern of Corrupt Activity. This verdict was memorialized in an October 16, 2014 Judgment Entry.
{¶35} Following a sentencing hearing on November 21, 2014, a Judgment Entry of Sentence was issued by the trial court. The Court merged counts two, four, six, eight, and ten with the remaining counts. Griggs was sentenced to a total term of imprisonment of 17 years.
{¶36} Griggs timely appeals and raises the following assignments of error:
{¶37} “[1.] The judge found, against the manifest weight of the evidence, that the Appellant committed the acts alleged in the indictment.
{¶38} “[2.] The evidence was not legally sufficient to sustain a guilty verdict.
{¶39} “[3.] The Trial Court abused its discretion by imposing a prison sentence contrary to
{¶41} In reviewing the sufficiency of the evidence, “[t]he 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶42} Whereas “sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “In other words, a reviewing court asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An appellate court considering whether a verdict is against the manifest weight of the evidence must consider all the evidence in the record, the reasonable inferences, the credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶43} In order to convict Griggs of Robbery, the State was required to prove, beyond a reasonable doubt, that “in attempting or committing a theft offense” he did “[i]nflict, attempt to inflict, or threaten to inflict physical harm on another” (for second-
{¶44} Griggs first argues that the testimony of Meghna Patel that he was not one of the robbers at the GP Express in Parma and she did not select him in the photo lineup, rendered the convictions against both the weight and sufficiency of the evidence.
{¶45} Initially, we recognize that there were unusual and problematic circumstances surrounding the photo lineup, including that the lineup form in evidence contained Meghna Patel’s husband’s signature instead of hers, which was not supported by the testimony that only Meghna was presented with a lineup, as well as that the lineup was not disclosed to defense counsel prior to trial. Griggs does not raise an assignment of error arguing that this failure to disclose should be cause for reversal. There is also no argument that it was purposeful, as the State expressed genuine surprise as to the police’s failure to disclose the evidence.
{¶46} Regardless, it was clearly before the trier of fact that Meghna identified someone other than Griggs as participating in the robbery, an issue which defense counsel more than competently pointed out during cross-examination. The court was able to fully evaluate this issue and determine the weight to give her identification. See Foster v. California, 394 U.S. 440, 442, fn. 2, 22 L.Ed.2d 402, 89 S.Ct. 1127 (1969) (“the reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution’s case is a matter for the jury“).
{¶47} There are many other facts in the record supporting the conclusion that Griggs committed the robbery of GP Express in Parma. Ivezzy testified that Griggs admitted to committing the robbery and was able to describe details which were
{¶48} Griggs next argues that Ivezzy’s testimony was impeached. He points to specific examples, including conflicting statements regarding the place where a conversation about the Parma robbery took place, the car in which the two were driving during the Wickliffe robbery and to the casino, the time at which Griggs made a car payment, and Ivezzy’s failure to disclose the Cleveland robbery during his proffer.
{¶49} While it is clear that there were some inconsistencies in Ivezzy’s testimony and prior statements, none of these instances are particularly relevant to the robberies themselves. Each of these issues relate to minor details, some of which had little to do with the robberies, and may be more easily forgotten than the events of the crimes. There was no evidence disproving the truth of Ivezzy’s testimony regarding the details of the robberies themselves, which were consistent with the videos and the victims’ testimony.
{¶51} Griggs also argues that Ivezzy’s testimony was self-serving, since he had an interest in implicating someone in order to receive a lower sentence. The facts in the record indicate that Ivezzy did take awhile to indentify Griggs and he explained that he struggled with revealing his identity. While the two men may have previously had some problems in their relationship, they spent time together before the robberies occurred, as documented by photographs and cell phone records. In addition, there is other evidence placing Griggs near the scene of at least some of the robberies, corroborating Ivezzy’s testimony, including the facts relating to the Parma robbery, text messages showing that Ivezzy and Griggs met up prior to the Cleveland robbery, and cell phone records for the Wickliffe robbery. Again, the court was in the best position to determine Ivezzy’s credibility.
{¶52} Griggs next takes issue with Rolle’s testimony regarding the silver Mercedes, noting that, although Rolle stated that it had temporary tags, he did not notice they were expired, as well as the fact that Rolle and the police did not know the car was a Mercedes until Rolle did further investigation.
{¶54} Griggs also asserts that Rolle works for the Fraternal Order of Police and that his statement was not provided to the police until over a week after the robbery, both in an attempt to attack his credibility. We fail to see how the delay in the police receiving the statement, without more, indicates untruthfulness. Rolle explained that he had a limited relationship with police officers and demonstrated no reason for being dishonest in this matter. The court, as the trier of fact, was entitled to determine his credibility.
{¶55} Griggs argues that Eon’s testimony regarding the cell phone records should be questioned, given that she was not deemed an expert on cell phone pings. Defense counsel did not object on this ground and had the ability to raise issues regarding the validity and reliability of this evidence.
{¶56} Griggs next contends that the existence of Mardamus as a suspect created reasonable doubt about Griggs’ participation in the robberies. This is based on testimony from individuals who knew Mardamus and believed he looked like one of the robbers. This information alone, given that police discovered he had an alibi, did not
{¶57} Griggs also argues generally that the police investigation was weak, including the issues with the photo lineup, the failure to obtain physical evidence at most of the robbery locations, and failure to subpoena witnesses to determine if Griggs had actually been using the phone at the times it pinged off cell phone towers.
{¶58} The fact that police did not investigate every possible piece of evidence does not change the evidence that was presented at trial linking Griggs to the robberies. Given that the evidence was more than sufficient for his convictions, it was not necessary to obtain additional evidence. See State v. Ballard, 5th Dist. Stark No. 1998CA00311, 1999 Ohio App. LEXIS 2812, 6-7 (June 1, 1999) (“we will not speculate on what further police investigation may or may not have discovered,” given the existence of sufficient credible evidence). Defense counsel was free to subpoena any witness he chose to prove Griggs had not been the one making phone calls and also to emphasize during cross-examination the lack of physical evidence (which he did).
{¶59} Finally, Griggs argues that his convictions were based on weak circumstantial evidence. “Circumstantial evidence and direct evidence inherently possess the same probative value.” State v. Sanders, 11th Dist. Lake No. 2011-L-024, 2012-Ohio-400, ¶ 34, citing Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph
{¶60} The first and second assignments of error are without merit.
{¶61} In his third assignment of error, Griggs argues that the trial court abused its discretion in imposing a prison sentence, including consecutive sentences, that was inconsistent with the felony guidelines.
{¶62} The overriding purposes of felony sentencing in Ohio “are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”
{¶63} It is well-recognized that a sentencing court “has discretion to determine the most effective way to comply with the purposes and principles of sentencing.”
{¶65} Specifically, Griggs takes issue with the fact that Ivezzy was sentenced to a term of 10 years, given his criminal history of theft, while Griggs received 17 years and had no prior convictions. He asserts that the sentences were inconsistent and he was punished for going to trial.
{¶66} There is no question that the lower court considered the necessary factors in reaching its sentence, stating that it had considered
{¶67} “[T]his court has repeatedly held that consistency in sentencing is accomplished by the trial court’s application of the statutory sentencing guidelines” and, “to show a sentence is inconsistent, a defendant must show the trial court failed to properly consider the statutory purposes and factors of felony sentencing.” State v. Brody, 11th Dist. Lake Nos. 2010-L-095, et al., 2011-Ohio-4884, ¶ 43; State v. Delmanzo, 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, ¶ 37 (“we do not believe
{¶68} Griggs fails to recognize that, even comparing the two sentences, he was convicted of and sentenced for five robbery offenses, while Ivezzy was convicted of only four. This alone justifies a greater sentence. Further, although Griggs takes issue with the recommendation of a shorter sentence in return for Ivezzy’s cooperation, this was not uncommon or contrary to law.
{¶69} Griggs also argues that the trial court erred in ordering consecutive sentences.
{¶70} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶71} Pursuant to
At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
{¶72} Here, Griggs concedes that the court “put the required factors on the record” but argues that the facts did not support consecutive sentences, noting his lack of a criminal record and that he was “the least culpable of the men involved.”
{¶73} The court properly followed the requirement to find that consecutive sentences were necessary to protect the public and that the conduct was serious enough to warrant multiple sentences. The court was not required to make factual findings to support this conclusion, but the record demonstrates that Griggs participated in a course of conduct including five robberies, where a weapon was used to threaten victims, and that this caused harm to the victims. The lower court did not err in ordering that Griggs serve consecutive sentences.
{¶74} To the extent that Griggs again argues the different sentences given to the two defendants were inconsistent, this is not relevant to the application of the consecutive sentencing factors and this issue has been fully addressed above.
{¶75} The third assignment of error is without merit.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.