State v. MillerState v. Miller
Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Matthew C. Bangerter, 1360 West 9th Street, Suite 200, Cleveland, OH 44113 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Kenneth S. Miller appeals from a judgment of the Lake County Court of Common Pleas which convicted him of two counts of robbery and sentenced him to 16 years in prison. The convictions stem from his involvement in two robberies which occurred within 72 hours at a Subway shop and a Clark gas station in Lake County. On appeal, Mr. Miller claims that his convictions are not supported by sufficient evidence
Substantive Facts and Procedural History
{¶2} On February 23, 2011, two men robbed a Subway shop in Willoughby by displaying a gun. Two days later, a man robbed a Clark gas station in Mentor, also by displaying a gun. On May 20, 2011, a grand jury indicted Mr. Miller for four counts of robbery for his involvement in these two robberies: counts one and three charged with him with robbery, a second degree felony, in violation of
{¶3} The matter was tried to a jury. At trial, the state presented testimony from 19 witnesses, and the defense presented one witness.
The Willoughby Subway Robbery
{¶4} Heather Vasilko, an employee of the Willoughby Subway shop on Euclid Avenue was working on the evening of February 23, 2011. Around 8 p.m., two men, one in red hat and black jacket and one in a gray hooded jacket, came in and ordered sandwiches. When they approached the register, the man in the red hat pulled a gun out of his waistband and demanded all the money from the cash register. A video from the store‘s security camera captured the incident, and the video was played for the jury. Ms. Vasilko testified that she handed all the cash from the register, about $400, to the men, and then laid down on the ground as ordered.
{¶5} Willoughby Police Officer Davis responded to the dispatch regarding the Willoughby Subway robbery that evening. He arrived at the scene and interviewed Ms.
{¶6} A few days after the Willoughby Subway robbery, the police showed Ms. Vasilko some photograph lineups, but she was unable to identify either man involved in the robbery.
{¶7} Willoughby Detective Knack was also involved in the investigation of the Subway robbery and testified in great detail regarding the procedure employed in the photograph lineups. He explained that he compiled six photos, placed each in a separate folder, and gave these folders to a “blind” administrator not involved in the investigation. The blind administrator gave the witness one folder at a time, and noted any comment made by the witness when viewing a photo. Detective Knack used pictures from Ohio BMV to compile the two photograph lineups – one lineup contained a BMV picture of the second suspect, Bret Dixon, the other Mr. Miller. No witnesses, however, identified either man from the photograph lineups.
The Other Subway Robbery Suspect Testifies for the State
{¶8} After reaching an agreement with the prosecutor, Bret Dixon, one of the two suspects in the Subway robbery, testified against Mr. Miller, and later pled to a lesser charge for his involvement in the Subway robbery. Mr. Dixon described the events surrounding the robbery. He and Mr. Miller had taken heroin and then drove around in a green Durango belonging to Mr. Miller‘s mother. Mr. Miller wanted to “hit a lick” together and gave Mr. Dixon a fake gun to use. They parked at a Chick-fil-A and walked to a Subway shop. After ordering a sandwich, Mr. Dixon displayed the fake gun and demanded money from the employee. According to Mr. Dixon, Mr. Miller also had
{¶9} Mr. Dixon admitted he had served six months in prison for breaking and entering, and had also committed three theft offenses.
{¶10} Detective Knack interviewed Mr. Dixon in jail, and Mr. Dixon told him about his involvement in the Subway robbery and also implicated Mr. Miller. In addition, Detective Knack, a range instructor, testified the gun in the state‘s exhibit was a fake gun, but more advanced than a typical toy gun.
{¶11} On cross-examination, Detective Knack admitted the jail‘s phone monitor system never registered the phone call allegedly placed by Mr. Miller to Mr. Dixon, even though Mr. Dixon testified Mr. Miller called him a month after the robbery incidents, at a time when Mr. Miller was in the county jail.
The Ring Finger Tattoo
{¶12} Mr. Miller has a tattoo on his left ring finger that became the focus of testimony presented by Willoughby Detective Trem. Detective Trem explained that he used a computer program to create still photographs from the Subway surveillance video which captured the robbery. He magnified the portion depicting the suspect‘s left ring finger, which showed a narrow dark area where a ring would be, and created an
{¶13} Rich Kish, a tattoo parlor owner, was the sole defense witness. He testified he had personally performed 28 ring finger tattoos, and estimated his establishment performed between 100 and 120 such tattoos in the past year alone. He also testified that he could not tell whether the dark shadow in the ring finger captured in the Willoughby Subway and Mentor Clark gas station surveillance videos were tattoos.
The Mentor Clark Gas Station Robbery
{¶14} Two days after the Willoughby Subway robbery, Suzanne Miranda, a clerk at a Clark gas station in Mentor, was outside the station smoking a cigarette around 1:20 p.m. A man, who had been pacing in front of a FedEx box, approached her and tried to strike a conversation with her, saying he worked at the nearby sub shop and was on break. When she went back to the gas station, he followed her inside. As soon as she got to the register, he pulled his turtleneck over his face and put a gun on the counter pointing at her, demanding all the money from the drawer. She gave him all the money, about $275. He left the store immediately, and she saw him running passing the sub shop.
{¶15} At the lunch hour on the day of the gas station robbery, Christopher Maio, a manager of a nearby sub shop was serving a frequent customer when he noticed a
{¶16} That frequent customer, bank manager Chientai Ranallo, described a “strange gentleman” who walked into the store and she looked right at him. He asked for an employment application, but left before getting the application. She saw him again standing outside the shop when she walked to her car. After eating lunch, she noticed the police cars arriving at the gas station. She immediately went to the sub shop to talk to Mr. Maio. She then saw Officer Grecco and described to him what she had seen at the sub shop earlier.
{¶17} The robbery was also captured on the surveillance camera, and was played for the jury. The video showed a man wearing a hat, a two-toned blue-and-gray jacket, and jeans. When the police arrived, the station clerk, Ms. Miranda, described the suspect as red-haired and wearing a hat, jacket, and jeans. Mentor Detective Collins came to the gas station and showed her two photo lineups; she identified an individual from the second lineup as resembling the suspect, but she was not “one hundred percent sure.” When the police showed Mr. Maio two photograph lineups hours later, he, too, was unable to identify with certainty the man he had seen in his shop.
{¶18} Ms. Ranallo described the man as blue-eyed and red-haired, but she also was unable to identify him from two photograph lineups shown to her by the police. A few days later, however, when she read a News-Herald article online regarding the Clark gas station robbery, she recognized the man whose photograph appeared in the
{¶19} At the Mentor police station next day, Ms. Miranda, the gas station clerk, was shown a hat and a black turtleneck. She recognized the turtleneck, which the robber had pulled over his face, as similar to that worn by the robber. When Detective Collins showed her a photograph taken at Mr. Miller‘s booking which depicted him in the two-toned blue-and-gray fleece jacket, she broke down; she “began to hyperventilate and started to cry uncontrollably,” identifying Mr. Miller as the robber.
{¶20} These clothing items, which Mr. Miller wore when he was taken into custody, were introduced as exhibits, and Ms. Miranda identified them in court as those items worn by the robber. She also recognized an air pistol shown to her by the officers at the police station as very similar to the gun used in the robbery, based on a distinctive white spot on the top of the gun.
Phone Calls Led to Mr. Miller
{¶21} A series of phone calls led to the discovery of a weapon and Mr. Miller. Bruce Bishop, who lived with Vanessa Santini, an acquaintance of Mr. Miller, described a series of phone calls Ms. Santini received the day after the robberies. Based on the information revealed in the phone calls, he followed the tracks in the snow and found a gun buried in the snow behind his trailer. He contacted the police.
{¶22} Mentor Patrolman Danzey described that contact from Mr. Bishop, through which the police were alerted that a gun had been left at the Mentor Avenue trailer park.
{¶23} Patrolman Danzey, along with two other officers, went to the trailer park. While the police were there, Mr. Miller telephoned Ms. Santini, and the police recorded
{¶24} Patrolman O‘Brien also responded to Mr. Bishop‘s telephone call and went to the trailer park. The gun found there “looked to be the same gun” he had seen on the store surveillance video.
{¶25} Wickliffe Detective Dondrea described how Mr. Miller was apprehended. He had heard on a police radio about a search by the Mentor police for a Kenneth Miller, who was on a pay phone in the area of Lakeland Road and Route 305. He ran a search on the name and printed a picture of him, and then drove to the area. A dispatch, based on the call the suspect made from a pay phone, informed Detective Dondrea that the suspect, driving a green Dodge Durango, was outside a cash-for-gold store around 200th and Euclid Avenue. Knowing the area well, Detective Dondrea drove to Gold Works on 200th Street, and found the green Durango parked outside a convenience store, several blocks north of Gold Works,
{¶26} Among the items found inside the vehicle was a copy of the day‘s News-Herald, which had the gas station robbery as its cover story.
{¶27} When Patrolman Danzey returned to the police station, Officer Bruening had already arrived with Mr. Miller in custody. Both officers testified Mr. Miller wore a dark or black turtleneck and a blue-and-gray fleece jacket. During booking, Mr. Miller was asked to remove his clothing. When putting his clothes back on, he claimed the black turtleneck did not belong to him. Patrolman O‘Brien took photographs of Mr. Miller during his booking. He identified the state‘s exhibit 7, which was the two-toned
A Jailhouse Phone Call
{¶28} Mr. Miller called his mother from the Lake County jail. Lake County Detective Seamon recorded Mr. Miller‘s jailhouse phone conversations, specifically, the May 13, 2011 call, which was transcribed. During the phone call, Mr. Miller told his mother that the police only had witnesses on the Mentor case but not the Willoughby case, and therefore it was important for her to call a certain individual and tell him to “lawyer the f--up” if arrested. Mr. Miller was also heard saying that the police had a picture of his hand with a tattoo on his ring finger, but “there‘s f--ing 100,000 people in a f--ing ten mile square radius that have ring finger tattoos. There is thirty people in the jail right now that have them * * *.”
{¶29} After trial, the jury found Mr. Miller guilty of all four counts. The trial court sentenced him to eight years in prison each for counts one and three; count two was merged with one and count four merged with three. The two eight-year terms are to be served consecutively, for a total of 16 years.
{¶30} Mr. Miller now appeals his convictions and sentence, raising the following assignments of error:
{¶31} “[1.] Defendant-appellant was denied effective assistance of counsel, in violation of the Sixth Amendment of the United States Constitution.”
{¶32} “[2.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence.”
{¶33} “[3.] The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to
{¶34} “[4.] The trial court erred when it imposed a prison term where its findings under
Identification Evidence
{¶35} Under the first assignment of error, Mr. Miller argues his trial counsel provided ineffective assistance because counsel failed to attempt to suppress the photographic identification of him by Ms. Miranda and Ms. Ranallo. Mr. Miller claims the photographic identification in these instances does not comport with
{¶36}
{¶37} Because
{¶38} Showing a witness a single photograph of the defendant is highly suggestive and gives rise to a “very substantial likelihood of irreparable misidentification.” State v. Battee, 72 Ohio App.3d 660, 662 (11th Dist.1991), citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, a suggestive or improper identification would be admissible if it is found reliable after consideration of the totality of circumstances. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). “The test for determining the admissibility of a photographic identification is ‘whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive.‘” (Citation omitted.) Id.
{¶39} In Biggers, which involved a “showup” identification, the court adopted a totality-of-the-circumstances test for determining whether the identification was reliable, and therefore, admissible, despite the suggestiveness of the identification procedure. Factors bearing on the reliability of identification evidence include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Biggers at 199-200.
The Single Photo Identification by Ms. Miranda
{¶40} Here, Detective Collins testified that after Mr. Miller was taken into custody, he went to see Ms. Miranda, the gas station victim, and showed her a booking photograph of Mr. Miller wearing the clothing he was found in, as well as photographs of the various individual clothing items. When Ms. Miranda was shown the photograph of
{¶41} On direct examination, the prosecutor did not elicit testimony from Ms. Miranda regarding the photograph shown to her by Detective Collins. Instead, the prosecutor showed her the two-toned jacket worn by Mr. Miller when he was found by the police, and she testified that the jacket was the same as one worn by the robber. Under cross-examination, Ms. Miranda testified she wrote a statement after viewing the photos shown to her by the police, stating that she recognized the jacket. She admitted she did not state specifically that she recognized Mr. Miller, only that she recognized the jacket.
{¶42} We applied the Biggers two-part test to identification evidence in a recent decision, State v. Stetz, 11th Dist. No. 2011-A-0008, 2011-Ohio-6516. There, a witness saw the back of a man in red shorts and red t-shirt walking near the scene of a reported car theft. The police later encountered the defendant walking near the scene, in gray shorts and shirtless, while carrying a red t-shirt. The gray shorts were reversible, with the red on the inside. The police asked the defendant to reverse his shorts and put on the red t-shirt for a showup identification by the witness.
{¶43} Affirming the trial court‘s suppression of the identification evidence, we determined that the “showup” identification employed in that case, where the suspect was made to conform his clothing to the witness’ description, was inherently and impermissibly suggestive. We then applied the totality-of-the-circumstances test and
{¶44} In this case, although the facts are dissimilar – Mr. Miller was not “dressed” for the booking photo to be subsequently used for a showup while the defendant in Stetz was made to conform his clothing to the witness‘s description, we reiterate that showing a witness a single photograph of the defendant is highly suggestive and gives rise to a “very substantial likelihood of irreparable misidentification.”
{¶45} Applying the Biggers analysis, we find that the identification evidence in the present case should have similarly been excluded as unreliable, because Ms. Miranda‘s own testimony appeared to indicate that she recognized Mr. Miller‘s clothing rather than his face. Although her recognition of the clothing is circumstantial evidence establishing the similarity of the clothing worn by the robber and Mr. Miller when he was found, we find it to be unreliable identification evidence under the Biggers test, as the level of certainty in Ms. Miranda‘s identification of Mr. Miller being the individual wearing the clothing she did identify has not been demonstrated.
{¶46} Therefore, the single photograph identification evidence is not admissible and Mr. Miller‘s trial counsel should have filed a motion to suppress the evidence.
{¶47} However, to establish his claim that his counsel provided ineffective assistance, Mr. Miller must show that there is a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984). As we explain in the following, there is an overwhelming amount of circumstantial evidence presented by the state in this case,
The Single Photo Identification by Ms. Ranallo
{¶48} As to Mr. Miller‘s contention that Ms. Ranallo‘s identification of him was inadmissible because the identification was not in compliance with
{¶49} Next, under the second and third assignments of error, Mr. Miller claims his convictions are not supported by sufficient evidence and are against manifest weight of the evidence.
Sufficiency of Evidence
{¶50} A trial court shall grant a motion for acquittal when there is insufficient evidence to sustain a conviction.
{¶51} A sufficiency challenge requires this court to review the record to determine whether the state presented evidence on each of the elements of the offense. This test involves a question of law and does not permit us to weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 175 (1983).
{¶52} It is undisputed a robbery occurred in the Willoughby Subway and Mentor Clark gas station. The only issue in this case is the identify of the offender(s). In order to warrant a conviction, the evidence must establish beyond a reasonable doubt the identity of the accused as the person who committed the crime. State v. Scott, 3 Ohio App.2d 239, 244 (1965).
{¶53} We recognize that none of the witnesses were able to identify Mr. Miller from the photograph lineups, and further that the evidence the state used to prove the identity of the suspect involved in the robberies is mostly circumstantial evidence. However, there is no general requirement that the defendant must be identified in photograph lineups. Instead, “direct or circumstantial evidence is sufficient to establish
{¶54} The courts have always recognized that “circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶75, quoting State v. Heinish, 50 Ohio St.3d 231, 238 (1990). Circumstantial evidence may be sufficient to establish the identity of the accused. Lawwill, supra. See also State v. Brown, 10th Dist. No. 07AP-244, 2007-Ohio-6542, ¶19; State v. Kiley, 8th Dist. Nos. 86726 and 86727, 2006-Ohio-2469, ¶9. Circumstantial evidence is “the proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning other facts.” (Citations omitted.) Lawwill at ¶12
{¶55} Here, the state presented ample evidence, although mostly circumstantial, linking Mr. Miller to both robberies. For the Willoughby Subway robbery, the evidence included the surveillance video showing one of the robbers had a dark area in his left ring finger resembling Mr. Miller‘s ring finger tattoo, and Mr. Dixon‘s testimony that Mr. Miller was his accomplice in the robbery. For the Clark gas station robbery, the surveillance video showed the robber wearing a two-toned blue and gray fleece jacket very similar to what Mr. Miller wore when he was found by the police three days later.
{¶56} The third assignment of error is not well taken.
Manifest Weight
{¶57} “Unlike sufficiency of the evidence, manifest weight of the evidence raises a factual issue. ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines 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.‘” State v. Higgins, 11th Dist. No. 2005-L-215, 2006-Ohio-5372, ¶35, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1987).
{¶58} “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Fritts, 11th Dist. No. 2003-L-026, 2004-Ohio-3690, ¶23, citing State v. Martin, 20 Ohio App.3d 172, 175 (1983).
{¶59} “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. When examining witness credibility, “the choice
{¶60} “When reviewing a judgment under a manifest-weight-of-the-evidence standard, a court has an obligation to presume that the findings of the trier of fact are correct. * * * This presumption arises because the trial judge had an opportunity to view the witnesses and observe their demeanor in weighing the credibility of the witnesses.” State v. Reeves, 11th Dist. No. 2006-T-0099, 2007-Ohio-4765, ¶14, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 79-81 (1984).
{¶61} Here, the state presented a significant amount of circumstantial evidence linking Mr. Miller to both robberies. Circumstantial evidence and direct evidence inherently possess the same probative value. State v. Treesh, 90 Ohio St. 3d 460, 485 (2001), citing Jenks, supra, at paragraph one of the syllabus. There is a significant amount of circumstantial evidence in this case.
{¶62} For the Willoughby Subway robbery, the evidence included the surveillance video showing Mr. Dixon‘s accomplice had a dark area in his left ring finger, which resembled Mr. Miller‘s ring finger tattoo on his left hand; Mr. Dixon‘s testimony regarding Mr. Miller‘s role in the robbery; and Mr. Miller‘s telephone call to his mother from the jail referencing the subway robbery.
{¶63} For the Mentor Clark gas station robbery, the surveillance video showed the suspect wore the same two-toned blue and gray fleece jacket Mr. Miller wore when
{¶64} Mr. Miller maintains the only evidence linking him to the crimes is the clothing and the finger ring tattoo, and he claims none of it is unique. It is conceivable that Mr. Miller happened to wear the same two-toned blue-and-gray fleece jacket worn by the Clark gas station robber, and the subway robber happened to have a dark mark in his left ring finger which resembled the tattoo on Mr. Miller‘s left ring finger. However, the other evidence presented by the state lead these circumstances beyond mere coincidences to the establishment of circumstantial evidence. As to Mr. Miller‘s claim that Mr. Dixon‘s testimony about Mr. Miller‘s telephone call to him a month after the incidents where he implicated himself in the Willoughby Subway robbery is contradicted by a lack of jail record, we note that a fact finder is free to believe all, some, or none of the testimony of each witness appearing before it.
{¶65} The weight to be given the evidence presented by the state in this case, whether direct or circumstantial, as well as the credibility of the witnesses, were exclusively for the jury to determine, sitting as the trier of fact.
{¶66} After reviewing the entire record, weighing the direct and circumstantial evidence before the jury, and all reasonable inferences to be drawn therefrom, we are not persuaded that in resolving potential conflicts and limitations in the testimony, the jury clearly lost its way and created such a manifest miscarriage of justice that Mr. Miller‘s conviction must be reversed and a new trial ordered. Given the strength of both direct and circumstantial evidence, this case does not fall into the category of the “exceptional case in which the evidence weighs heavily against the conviction.” State v. Thompkins, supra, at 387. The second assignment of error is without merit.
Reviewing Sentences Post Foster
{¶67} In the fourth assignment of error, Mr. Miller claims the court erred by sentencing him to maximum and consecutive terms of imprisonment.
{¶68} The Supreme Court of Ohio, in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, provided a two-step analysis for an appellate court to apply when reviewing felony sentences.
{¶69} First, the reviewing court must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the appellate court then reviews the trial court‘s decision under an abuse-of-discretion standard. Id. at ¶4. The first prong of the analysis instructs that “the appellate court must ensure that the trial court has adhered to all applicable rules and statutes in
{¶70} If the first prong is satisfied, that is, the sentence is not “clearly and convincingly contrary to law,” the appellate court must then engage in the second prong of the analysis, which requires an appellate court to determine whether the trial court abused its discretion in selecting a sentence within the permissible statutory range. Id. at ¶17. The Kalish court explained the effect of
{¶71} ”
{¶72} Here, Mr. Miller claims his sentence is contrary to law because the trial court failed to consider the seriousness and recidivism factors set forth in
{¶73} The record shows that at sentencing, his counsel stated that Mr. Miller has always maintained his innocence and noted the lack of physical harm to the victims. The prosecutor, on the other hand, noted the psychological harm the victims suffered, the short span of time the two robberies occurred in, and his prior conviction of bank robbery in the federal court for which he served 63 months, as well as multiple convictions in the state courts.
{¶74} The trial court stated it had reviewed a presentence report, which was incomplete due to Mr. Miller‘s lack of cooperation, and an old presentence report dated September of 1993 covering Mr. Miller‘s criminal activities from July 1993 to September 1993. The court had also reviewed a victim impact statement from Ms. Miranda. Prior to sentencing Mr. Miller, it stated it considered the purposes of felony sentencing set forth in
{¶75} “In this case the Court finds that the victims suffered serious psychological harm. That there are no factors which would make the offense less serious. The
{¶76} Having reviewed the record, we are satisfied that the trial court considered the
{¶77} Our review of the record indicates the trial court‘s sentence is not clearly and convincingly contrary to law. The fourth assignment of error is without merit.
{¶78} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.