State v. StrongState v. Strong
Rendered on March 8, 2011
Ron O‘Brien, Prosecuting Attorney, and Kimberly Bond, for appellee.
Robert B. Barnhart, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶1} Defendant-appellant, Willy A. Strong, Jr. (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas, entered upon a jury verdict convicting appellant of one count of aggravated robbery with a three-year firearm specification. For the following reasons, we affirm that judgment.
{¶2} Appellant‘s conviction arises from an aggravated robbery that occurred on November 7, 2008, when Clarence Cannon (“Mr. Cannon“) was robbed at gun point inside at an apartment complex on Belcher Drive, in Franklin County, Ohio.
{¶3} On December 24, 2008, appellant was indicted for one count of aggravated robbery and two counts of robbery, all of which were indicted with firearm specifications. This matter proceeded to trial on May 26, 2009. During the trial, the State of Ohio (“the State“) introduced testimony from four witnesses: Mr. Cannon, Officer Ian Pruitt, Detective Todd Cress, and Christine Mauer, a representative from Verizon Wireless. Appellant did not present any witnesses.
{¶4} Mr. Cannon testified that he and appellant had both attended Westerville North High School and had contact with one another during school hours, but had only been casual acquaintances. Mr. Cannon knew appellant by the name “Chill.” Mr. Cannon testified that his contact with appellant essentially ceased after Mr. Cannon graduated in 2005, although he admitted on cross-examination that there had been a few unplanned, random encounters over the next few years. The two reconnected in August or September 2008, when Mr. Cannon saw appellant at his place of business and the two exchanged numbers with plans to get together to hang out some time in the future.
{¶5} Mr. Cannon and appellant communicated via cell phone on November 7, 2008, and made plans to have drinks and go to a club. The two met in the parking lot of an apartment complex located at 1859 Belcher Drive between 4:00 and 4:30 p.m. The two men talked briefly before heading inside the apartment building so that appellant could introduce Mr. Cannon to a friend. They climbed a short flight of stairs. As appellant approached a door to one of the apartments and appeared ready to knock, he suddenly turned and pointed a gun at Mr. Cannon and demanded Mr. Cannon‘s property. Mr. Cannon described the gun as a small, black, automatic pistol.
{¶6} Shocked by his demand, Mr. Cannon froze as appellant came towards him with the gun, which was already cocked. Appellant went through Mr. Cannon‘s pockets, taking the money he found in one of the pockets. Appellant also searched Mr. Cannon‘s wallet, but did not take it. In addition, appellant took Mr. Cannon‘s gold jewelry, which included a ring and bracelet, but declined to take Mr. Cannon‘s silver watch. Appellant then left the building.
{¶7} Mr. Cannon testified he used his cell phone to call 911 as he exited the building and returned to the parking lot. The police arrived within approximately two minutes. After they arrived and began searching for appellant, Mr. Cannon attempted to call appellant on his cell phone and tried to lure him back to the scene by asking him to return the property. Mr. Cannon eventually spoke with appellant on the phone and observed appellant standing in the doorway of one of the apartment buildings. Upon reporting that to the police, they searched for him again, but were unsuccessful.
{¶8} Mr. Cannon testified that at the time of the robbery, he knew appellant as “Chill” but testified he later gave the detective additional information, informing him he believed appellant‘s first name was “William.” He testified the police later advised him appellant‘s name was Willy Strong. During the trial, Mr. Cannon made an in-court identification of appellant by pointing to him and also confirmed his out-of-court identification, which had previously been made using a photo array.
{¶9} Mr. Cannon also admitted that he had not appeared in court, pursuant to subpoena, to testify the previous day and consequently had been arrested. He testified he feared retaliation as a result of his testimony, but conceded that he had not discussed this fear with the prosecution prior to his arrest.
{¶10} Officer Pruitt was the first responding officer who made contact with Mr. Cannon in the parking lot of the Woods of Northland apartment complex. He testified he and other officers searched for appellant but did not locate him and never witnessed anyone running away from the scene. Officer Pruitt testified that Mr. Cannon gave him the cell phone number of appellant, and Officer Pruitt also called appellant from his personal cell phone to try to determine if appellant was still in the area. The person who answered the call claimed his name was “Mike” and hung up when Officer Pruitt asked about his location.
{¶11} Officer Pruitt, who was assigned to Columbus’ two precinct, also testified regarding the boundaries of that precinct. Included within those boundaries were 4472 Fairview Avenue and 4795 Evanswood Drive. He described both of those locations as being within one-half mile to one mile of 1859 Belcher Drive.
{¶12} Christine Mauer (“Ms. Mauer“) testified she worked for Verizon Wireless and was the custodian of records for Verizon Wireless in Columbus. She testified regarding cell phone records for appellant and for Vickie Cannon, the mother of Mr. Cannon. Testifying from the records, she stated the records documented numerous calls between appellant‘s phone number and Mr. Cannon‘s phone number on November 7, 2008. Specifically, she testified that calls occurred between the two numbers at 10:48 a.m., 3:30 p.m., 4:20 p.m, 4:31 p.m., 4:42 p.m. 4:53 p.m., 4:54 p.m., 4:55 p.m., 4:57 p.m., 5:02 p.m., and 5:35 p.m. The records also reflected a call to appellant‘s cell phone at 5:33 p.m. from Officer Pruitt‘s cell phone.
{¶13} Additionally, Ms. Mauer testified there are hundreds of Verizon cell tower sites in Columbus, Ohio and two specific Verizon cell tower sites are located at 4472
{¶14} Detective Cress testified he was the investigating detective assigned to the robbery at issue. He was advised of the incident by Officer Pruitt, but did not respond to the scene, as there was no evidence to be collected. Neither the firearm used during the robbery nor the stolen property were recovered.
{¶15} Detective Cress testified he was advised that Mr. Cannon knew the person that robbed him. He generated a photo array containing a picture of the robbery suspect and showed the array to Mr. Cannon, who selected the photo of appellant as the person who had robbed him. Detective Cress testified Mr. Cannon did not know appellant‘s full name, but knew appellant by his street name of “Chill.” (Tr. 173-74.) Detective Cress made an in-court identification of appellant and described his clothing.
{¶16} On cross-examination, Detective Cress responded “yes” to the question, “So the name of William Strong has been known to Mr. Cannon before he got to you?” (Tr. 185.) This response appears to be contradictory to his earlier testimony and to the testimony of Mr. Cannon.
{¶17} At the end of the State‘s case and prior to instructing the jury, the State chose to proceed on only the aggravated robbery with firearm specification charge and requested the two robbery charges be dismissed.
{¶18} On June 2, 2009, the jury returned a guilty verdict as to the aggravated robbery charge with the firearm specification. A sentencing hearing was held on
{¶19} On September 18, 2009, appellant filed this timely appeal and asserts the following assignment of error for our review:
ASSIGNMENT OF ERROR #1
APPELLANT‘S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1 & 16 OF THE OHIO CONSTITUTION AND THE CONVICTIONS WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶20} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. We examine the evidence in the light most favorable to the state and conclude whether any rational trier of fact could have found that the state proved, beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶78; State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396.
{¶21} In determining whether a conviction is based on sufficient evidence, an appellate court does not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. See Jenks, paragraph two of the syllabus; Thompkins at 390 (Cook, J., concurring); Yarbrough at ¶79
{¶22} In his sole assignment of error, appellant first argues the evidence presented at trial is insufficient to support his conviction because the State failed to present sufficient evidence to prove identity. Appellant contends that while the record reflects the witnesses’ identification of someone in the courtroom, it fails to reflect that the person identified in the courtroom is in fact the appellant.
{¶23} The identification of the accused as the perpetrator of the crime is an essential element which must be proven by the State at trial. Here, appellant appears to be arguing that because the prosecutor failed to request that the record reflect that the person pointed to and identified in the courtroom by Mr. Cannon and Detective Cress is appellant, the evidence is insufficient. However, in reviewing the entire record, we reject this claim as meritless.
{¶24} During the proceedings, the prosecution referred to the accused as “Mr. Strong.” Defense counsel referred to him as “Willy.” At the outset of his testimony, Mr. Cannon clearly stated that he had been robbed by “Willy Strong.” (Tr. 22.) He also indicated that he saw Willy Strong in the courtroom, and he pointed to him and identified him as wearing a striped shirt. (Tr. 22.) Later, he was shown a photo array from which he had previously selected photo number four and identified that person as the perpetrator of the crime. During the trial, he again identified the person in photo number four as the
{¶25} A short time later, Mr. Cannon was asked if he was certain that the person located in position number four of the photo array was the person who robbed him, and he answered yes. (Tr. 56.) When asked if the robber was seated in the courtroom, Mr. Cannon replied yes. (Tr. 56.) When asked where he was seated, Mr. Cannon stated: “[t]o my left.” (Tr. 56.)
{¶26} In addition, Detective Cress testified that he prepared a photo array and included a photo of Willy Strong in position number four of the array. He testified that Mr. Cannon identified the robber as the person in position number four. Detective Cress then had Mr. Cannon circle the photo and sign and date it. When asked by the prosecutor if he saw Willy Strong seated in the courtroom, Detective Cress responded affirmatively and pointed to the location where he was seated and described him as wearing a tan and white striped shirt. (Tr. 182.)
{¶27} We also note that Mr. Cannon testified that he was casually acquainted with appellant in high school and had recently renewed that acquaintance. This familiarity certainly assisted Mr. Cannon in his identification of appellant as the robber. Furthermore, we are cognizant of the fact that for a sufficiency argument, evidence must be construed in a light most favorable to the State.
{¶28} Based upon all of this, we find appellant‘s claim that the State failed to present sufficient evidence to prove the element of identity is without merit.
{¶29} Next we address the second part of appellant‘s claim, in which he challenges his conviction on manifest weight grounds, arguing the jury clearly lost its way in believing the testimony of a single witness whose statements were incredible, unreliable, and conflicting, and thus against the manifest weight of the evidence.
{¶30} While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, at ¶25, citing Thompkins at 386. Under the manifest weight of the evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive - the state‘s or the defendant‘s? Id. at ¶25. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387; See also State v. Robinson (1955), 162 Ohio St. 486 (although there is sufficient evidence to sustain a guilty verdict, a court of appeals has the authority to determine that such a verdict is against the weight of the evidence); State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276.
{¶31} “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Wilson at ¶25, quoting Thompkins at 387. In determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving any conflicts in the evidence, the jury clearly lost its
{¶32} A conviction should be reversed on manifest weight grounds only in the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175. Moreover, ” ‘it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.’ ” State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶10, quoting State v. Long (Feb. 6, 1997), 10th Dist. No. 96APA04-511.
{¶33} Appellant urges us to analyze the manifest weight of the evidence by using factors set forth by the Eighth District in State v. Jordan (1992), 73 Ohio App.3d 524, 538-39. These factors require a court to consider: (1) the fact that a reviewing court is not required to accept the incredible as true; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proven; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness’ testimony is self-serving; and (8) whether the evidence is vague, uncertain, conflicting or fragmentary.
{¶34} In the instant case, appellant argues that numerous statements made by Mr. Cannon are incredible. For example, appellant argues Mr. Cannon‘s testimony asserting that appellant did not take his watch, wallet or cell phone, and that appellant remained at the scene and answered calls from his robbery victim are too incredible to believe.
{¶35} Appellant argues that the entire case rests on Mr. Cannon‘s testimony, which is fraught with a mass of contradictions, exaggerations, and misstatements, and therefore is not credible or reliable. Appellant argues Mr. Cannon gave contradictory testimony about the number of times he had contact with appellant after high school graduation and about whether he knew appellant‘s real name or simply his nickname. Appellant argues this testimony was also in conflict with the testimony provided by Detective Cress. In addition, appellant points to Mr. Cannon‘s testimony about the gun used in the robbery and notes that he made conflicting and exaggerated statements about his familiarity with guns by referencing his “hunting days,” and then later denied that he went hunting.
{¶36} Finally, appellant argues Mr. Cannon‘s testimony is highly self-serving, due to the fact that he was testifying as a result of being arrested for failing to appear in court pursuant to a subpoena, but then claimed for the first time that his failure to appear was due to a fear of retaliation.
{¶37} “The weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other.” State v. Brindley, 10th Dist. No. 01AP-926, 2002-Ohio-2425, ¶16, citing State v. Gray (Mar. 28, 2000), 10th Dist. No. 99AP-666; See also State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶8. The weight to be given to the evidence, as well as the credibility of the witnesses, are issues which are primarily to be determined by the trier of fact. State v. Hairston, 10th Dist. No. 05AP-366, 2006-Ohio-1644, ¶20, citing State v. DeHass (1967), 10 Ohio St.2d 230.
{¶38} A defendant is not entitled to a reversal on manifest weight grounds simply because there was inconsistent evidence presented at trial. State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶21; State v. Stewart, 10th Dist. No. 08AP-33, 2009-Ohio-1547, ¶17. The trier of fact is in the best position to take into account any inconsistencies, along with the witnesses’ demeanor and manner of testifying, and determine whether or not the witnesses’ testimony is credible. Chandler at ¶9, citing State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶58; Stewart at ¶17.
{¶39} “While the jury may take note of the inconsistencies and resolve or discount them accordingly, see DeHass, supra, such inconsistencies do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence.” State v. Nivens (May 28, 1996), 10th Dist. No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, at *7, 1996 WL 284714, at *3. A jury, as the finder of fact and the sole judge of the weight of the evidence and the credibility of the witnesses, may believe or disbelieve all, part, or none of a witness‘s testimony. State v. Antill (1964), 176 Ohio St. 61, 67; State v. Jackson, 10th Dist. No. 01AP-973, 2002-Ohio-1257; Chandler at ¶13; Raver at ¶21.
{¶40} A conviction is not against the manifest weight of the evidence merely because the jury believed the prosecution testimony. State v. Houston, 10th Dist. No. 04AP-875, 2005-Ohio-4249, ¶38 (reversed and remanded in part on other grounds); Stewart at ¶22. An appellate court must give great deference to the factfinder‘s determination of the witness credibility. Chandler at ¶19; State v. Webb, 10th Dist. No. 10AP-189, 2010-Ohio-5208, ¶16.
{¶41} The State‘s case is mostly premised upon Mr. Cannon‘s testimony. Appellant‘s defense was focused on attacking the credibility of Mr. Cannon and arguing
{¶42} Ohio courts have held that the testimony of one witness, if believed by the jury, is enough to support a conviction. See State v. Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, ¶133. It was in the province of the jury to assess the credibility of Mr. Cannon and to determine which part or parts of his testimony it found to be believable. The jury was free to determine that the exact number of times Mr. Cannon had contact with appellant after high school was not determinative of either his credibility nor of what actually happened here. Likewise, the jury could have decided the same thing with respect to whether or not Mr. Cannon knew appellant‘s full name or just his nickname. Or, the jury could have determined Detective Cress misunderstood the question on that issue. These are all determinations within the province of the jury.
{¶43} We also note that Mr. Cannon was unwavering in his identification of appellant as the perpetrator of the crime. Based upon his testimony, the evidence demonstrated that he was familiar with appellant and was within very close proximity of the robber while his pockets were being searched. He was also able to provide a description of the gun used to facilitate the robbery.
{¶44} In addition, Mr. Cannon‘s testimony was subject to cross-examination, at which point appellant‘s counsel had the opportunity to attempt to undermine Mr. Cannon‘s credibility. Based upon the evidence presented, the jury was free to decide that Mr. Cannon had no motive to lie, despite the fact that he had been arrested and taken to jail for failing to appear to testify.
{¶45} While there were some inconsistencies in his testimony, much of the testimony was consistent in significant areas, such as Mr. Cannon‘s recitation of the property that was stolen, the manner in which he was robbed, and his contact with the police following the robbery. Furthermore, the cell phone records introduced at trial corroborate Mr. Cannon‘s testimony regarding his contact with appellant and allow the inference to be drawn that appellant was in fact in the area with his cell phone at the time the robbery occurred and immediately thereafter. It was within the province of the jury to decide whether or not they believed that appellant would stick around the scene of the crime and take phone calls after the incident. Based upon the testimony presented, we cannot find that the jury clearly lost its way.
{¶46} Despite some of the conflicts in the evidence, this is not the exceptional case in which the evidence weighs heavily against the conviction, and therefore, the conviction is not against the manifest weight of the evidence.
{¶47} In conclusion, we overrule, in its entirety, appellant‘s single assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT, P.J., and BROWN, J., concur.
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