{¶ 2} According to the state's evidence, Nassir Abdi and his 12-year-old daughter were robbed at gunpoint on July 26, 2006 when Abdi was picking his daughter up from an apartment complex. The robbery began when a red sport utility vehicle ("SUV") pulled in *2 next to Abdi's car in the parking lot. The driver of the SUV asked Abdi for directions. When Abdi responded, the five occupants of the SUV exited the vehicle simultaneously and so smoothly they looked like they received "training for that mission." (Tr. 55.) The robbers seized Abdi and his daughter. Abdi described one robber, who was holding a rifle, as light-skinned with braided hair. After taking Abdi's wallet, between $700 and $800 from his pocket, and a cell phone from the car, the robbers told Abdi and his daughter to get back inside his car and to stay there. The robbers then fled in their vehicle.
{¶ 3} Contrary to the instructions, Abdi did not stay where he was, but followed the robbers to a nearby gas station and then followed again as the robbers began to leave the area. Using a cell phone the robbers did not take, Abdi called 911 and informed the operator of the robbery and the location of the robbers. Police units soon responded, and the robbers were pulled over.
{¶ 4} Inside the SUV, police found credit cards and other personal property belonging to Abdi. Defendant was found sitting in the SUV's rear seat. The rifle used in the robbery was discovered directly behind that seat, and one of the credit cards was found lying on the floor in front of defendant's seat. Abdi was present at the scene when the police arrested the robbers, and he was able to identify each one at that time. He told the arresting officers that during the robbery, defendant, while holding the gun, pulled Abdi from Abdi's car. After defendant was transported to jail, $639 was found in his shoe.
{¶ 5} By indictment filed October 17, 2006, defendant was charged with two counts of aggravated robbery in violation of R.C.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT-APPELLANT OF DUE PROCESS OF LAW BY ENTERING A JUDGMENT OF CONVICTION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT COMMITTED PLAIN ERROR AND DEPRIVED DEFENDANT-APPELLANT OF SUBSTANTIVE RIGHTS UNDER CRIMINAL RULE 52 BY FAILING TO GIVE A CHARGE OF DURESS IN THE JURY INSTRUCTIONS.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR BY ADMITTING EVIDENCE OF AN UNRELIABLE IDENTIFICATION.
ASSIGNMENT OF ERROR FOUR
DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED UNDER THE
FIFTH ,SIXTH , ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLEI , SECTION10 , OF THE OHIO CONSTITUTION.
I. First and Third Assignments of Error
{¶ 6} Because defendant's first and third assignments of error both concern Abdi's identifying defendant as the gunman during the robbery, we address them *4 together. Defendant's third assignment of error contends the trial court erred in admitting Abdi's identification evidence because Abdi's inconsistent testimony rendered the identification unreliable. His first assignment of error asserts his conviction is against the manifest weight of the evidence because Abdi's conflicting testimony left the state unable to prove defendant was the gunman. {¶ 7} When considering whether to admit identification evidence, the trial court utilizes a two-step analysis. Neil v. Biggers (1972),
{¶ 8} Generally, a defendant has the burden of proving both an identification procedure was impermissibly suggestive and the identification was unreliable. See State v. Albert, Franklin App. No. 06AP-439,
{¶ 9} Here, Abdi identified defendant in a one-person "show up," or "cold stand," an identification procedure where the victim, in a relatively short time after the incident, is shown only one person and is asked whether the victim can identify the perpetrator of the crime. See State v. Patton, Cuyahoga App. No. 88199,
{¶ 10} The "show up" in this case differs from the usual. Here, the victim led the police to the suspects, remaining in visual contact with the robbers as they drove away from the crime scene, save for a short interval of less than one minute. Under such circumstances, the "show up" was not inherently suggestive. Since the first prong of the two-partNeil test was not fulfilled, the trial court did not need to consider whether the identification was reliable; the identification evidence could be admitted simply on that basis. See Merriman, supra.
{¶ 11} Even if the "show up" were inherently suggestive, the totality of the circumstances demonstrates the identification was reliable. Four of the five factors set forth in Neil to determine the likelihood of misidentification favor the accuracy of Abdi's *6 identifying defendant as the gunman. Abdi had ample opportunity to view defendant during the robbery: defendant and another man held Abdi as a third pilfered his car. While Abdi testified "there was not enough time that I can watch those who were handling me, who was catching me, and those who was catching my daughter," the circumstances led to "confusion" only about the identification of those who held his daughter, not about the men who held him. (Tr. 54.) As to the suspects who restrained Abdi and went through his car, Abdi testified, "[t]hat three, I can tell like 95 percentage who and who and who." (Tr. 54.) Lighting was also not an issue, as Abdi testified that light posts, the nearest of which "was close up to" the crime scene, lit the parking lot where the robbery took place. (Tr. 59.) Such testimony indicates that Abdi had plenty of opportunity to view defendant at the time of the crime.
{¶ 12} Abdi was also attentive during the robbery, as the details he remembered about the robbers demonstrated. Although he did not get a good look at the faces of the robbers, he testified he was able to identify them to the police based on "[a]s much as I could remember their faces, their body, physically how they were looks like [sic], like the one who has the gun has braid hairs." (Tr. 52.)
{¶ 13} In addition, Abdi expressed a high degree of certainty in identifying the robbers on the night of the robbery, although he admitted at trial he was no longer sure he could identify them. Abdi testified that on the night of the robbery he was 95 percent sure which robber carried the gun, an assertion supported in the testimony of Detective Gary Bowman, who interviewed Abdi on the night of the robbery. Bowman testified that when Abdi identified defendant as the gunman, "[h]e was very certain. There was no hesitation in his identification. He pointed his finger and said, `That's the gunman right there. He's *7 the one that robbed me.'" (Tr. 179.) Finally, the identification of defendant as the gunman occurred only about 90 minutes after the robbery, during which Abdi remained in visual contact with the suspects save for a brief interval lasting at most one minute.
{¶ 14} The only question concerning Abdi's identification arises from a statement made during Abdi's trial testimony that is inconsistent with his statement on the night of the incident. At trial, he identified the driver of the robbers' car as the gunman, while his prior statement described defendant, who was not the driver, as the gunman. Although his testimony may raise some concern about the accuracy of Abdi's description of defendant as the gunman, the totality of the circumstances fails to support defendant's contention that the identification was unreliable. Since the "show up" was not impermissibly suggestive, and because the totality of the circumstances support the reliability of the identification, the trial court did not err in admitting Abdi's "show up" identification of defendant as the gunman. Defendant's third assignment of error is overruled.
{¶ 15} Defendant next contends that even if Abdi's identification was not impermissibly suggestive and unreliable, Abdi's testimony so varied from his statement to police that defendant's convictions are against the manifest weight of the evidence.
{¶ 16} When presented with a manifest weight argument, we engage in a limited weighing of the evidence to determine whether sufficient competent, credible evidence supports the jury's verdict to permit reasonable minds to find guilt beyond a reasonable doubt. State v.Conley (Dec. 16, 1993), Franklin App. No. 93AP-387; State v.Thompkins (1997),
{¶ 17} The inconsistencies in Abdi's testimony are insufficient to support defendant's contention. While Abdi identified defendant as the gunman on the night of the robbery, at trial he testified the SUV driver was the gunman. According to Abdi's testimony, the driver at the time of the robbery was also driving the vehicle when the police pulled the robbers over; that individual was not defendant. Abdi, however, also testified the gunman had braided hair and was light-skinned, both characteristics that uniquely identify defendant. Moreover, the arresting officers testified that Abdi identified defendant as the gunman on the night of the robbery. While the state's identification evidence was not entirely consistent, the jury was charged with the responsibility to determine the credibility and weight of the evidence. From this record, we cannot say the jury so lost its way in resolving the credibility issues as to render its verdict against the manifest weight of the evidence. Defendant's first assignment of error is overruled. *9
II. Second and Fourth Assignments of Error
{¶ 18} Because defendant's second and fourth assignments of error are related, we discuss them together. In his second assignment of error, defendant contends the trial court erred by failing to instruct the jury on the affirmative defense of duress, while his fourth assignment of error argues he was denied effective assistance of counsel because his trial counsel neither asserted duress as an affirmative defense nor objected when the trial court failed to include a duress charge in the jury instructions. {¶ 19} Because defendant did not request an instruction on duress and did not object when the trial court failed to include a duress charge in the jury instructions, he waived all but plain error in his second assignment of error. State v. Locklear, Franklin App. No. 06AP-259,
{¶ 20} One of the essential features of the defense of duress is the sense of immediate, imminent death or serious bodily injury if the actor does not commit the act as instructed. State v. Shirk (Nov. 4, 1997), Franklin App. No. 97APA03-390; see, also, State v. Cross (1979),
{¶ 21} The evidence in the record does not support defendant's claim of duress. Defendant contends he acted under duress because he feared Antwuan Hunter, the driver of the robbers' vehicle. He testified he initially "denied it all" when the police questioned him because "I was afraid that if I would tell on Antwuan that I don't know what might have happened to me, you know. I was feared for my life, and I was feared for my family's life because * * * [h]e just pulled a shotgun out on a man and a woman for no reason. What would he do to me if I told the police what he did?" (Tr. 217-218.)
{¶ 22} Although defendant's statements may explain that defendant's actions after the traffic stop resulted from duress, his convictions arise not out of what he did after the police pulled over the suspects, but out of his actions during the robbery itself. He offered no evidence that his actions during the robbery resulted from duress; nor could he, as he denied any participation in the robbery. Likewise, defendant's testimony that Hunter was "crazy" and "brazen" in pumping gas at a nearby gas station just minutes after the robbery fails to show that at the time of the robbery defendant was acting under duress due to his fear of Hunter. (Tr. 214.) Since his defense strategy at trial was to argue that he was innocently present at the robbery but refused to participate, the record presents no basis to support his claim of duress. Accordingly, the trial court did not err in failing to include a duress instruction in the jury charge. Defendant's second assignment of error is overruled. *11
{¶ 23} Similarly, defendant's claim that his trial counsel was ineffective is without merit. To prove ineffective assistance of counsel, defendant first must demonstrate that counsel's performance was deficient. Strickland v. Washington (1984),
{¶ 24} Having overturned defendant's four assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
*1SADLER, P.J., and McGRATH, J., concur.