State v. WilliamsState v. Williams
Rendered on September 20, 2011
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
Blaise G. Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} This is an appeal by defendant-appellant, Anthony N. Williams, from a judgment of sentence and conviction entered by the Franklin County Court of Common Pleas following a jury trial in which appellant was found guilty of kidnapping, aggravated robbery, and robbery. During a separate bench trial, the court found appellant guilty of a charge of having a weapon while under disability.
{¶3} The first witness for the state was Keri Richardson, an employee of Donato‘s. On the evening of December 10, 2008, Richardson was working at the Donato‘s on Noe Bixby Road when two men entered the store carrying guns. The men were wearing gloves, dark clothing and hoods, and had coverings on their faces; Richardson noted that one of the men was shorter than the other.
{¶4} Mark Kipple, a Donato‘s delivery driver, was getting ready to leave the store to make a delivery when the two men entered the store. The shorter man held a gun to Kipple, while the taller man held a gun to the back of Richardson‘s head. The men ordered Kipple, Richardson, and another employee, Mary Call, to go to the back of the store. The shorter man began to search Kipple and Call. According to Richardson, thе shorter man told the store employees that he “wasn‘t going to shoot us.” (Tr. 46.) After waiting for several minutes, the employees walked out toward the front of the store and discovered the men had left; the workers immediately placed a call to the police.
{¶5} Richardson testified that the shorter man reminded her of a customer who had been in the store earlier that day. Specifically, Richardson thought the man‘s eyes looked familiar. Several days after the incident, a detective showed Richardson a photo
{¶6} Michael Harrison, a Donato‘s delivery driver, was standing behind the counter emptying a trash can when he noticed a man enter the store. The man “was detaining the other driver [Kipple] as he was going out the door.” (Tr. 83.) The man pointеd a gun at Harrison and ordered him to the back room. Harrison walked to the back of the store and “just kept on going out the backdoor.” (Tr. 83.) Harrison then jumped a fence, went to a nearby apartment complex and asked a resident to dial 911. After the call was made, Harrison went out to the street and observed two men running. Harrison heard one of the men say “hurry up, let‘s get out of here.” (Tr. 84.) One man was holding а pizza bag in his hand, and Harrison then realized “that‘s the robbers.” (Tr. 84.) The man threw the bag in the back of a white Ford pickup truck, and the two individuals jumped inside the truck and drove away without turning the headlights on.
{¶7} Harrison described the man who held him at gunpoint as a black male, “all dressed in black,” with a stocking over his face. (Tr. 88.) Harrison did not observe the other man involved in the robbery until the two men were getting inside the truck; he described this mаn as appearing to be “really light skinned.” (Tr. 88.) Harrison was unable to make a positive identification of anyone involved in the incident. At trial, Harrison identified State‘s Exhibit No. 5 as a picture of the truck involved in the incident.
{¶9} Courtney Gomez, an employee of Donato‘s, was also working at the restaurant on the date of the incident. Gomez was standing near the drive-thru window when two men wearing black clothing, with masks on their faces and carrying guns, came inside the store and pushed everyone to the back of the building. One of the men asked Gomez for money, and Gomez gave the man cash from the drive-thru window register. The man directed Gomez to the front register, and the man also took money out of that register. He then ordered Gomez to go to the back of the store with the other employees.
{¶10} Gomez stated that the two men were both black males, similar in height. One of the men had a lighter skin color and was wearing black pants and a black hoodie. The darker-skinned man was wearing a black hoodie, black pants, and a dark blue scarf. Several days after the incident, detectives showed Gomez a photo array. Gomez chose the individual depicted in position No. 2 of the array as the man who held the other employees at gunpoint. Gomez wаs later shown another array, and she told detectives
{¶11} On December 10, 2008, Columbus Police Officer Dan Edelsburg was on duty in the 14th prеcinct with his partner, Officer Jeff Jones. The officers received a dispatch at approximately 9:00 p.m. regarding a robbery at a Donato‘s store on Noe Bixby Road. The officers were given a description of a silver or gray Ford Ranger pickup truck. While en route to the pizza store, the officers observed a vehicle matching that description near Livingston Avenue and Woodcrest Road. The officers pursued the vehicle, activating the cruiser‘s overhead beacons and red and blue lights. The truck came to a stop near an intersection, and the officers exited their cruiser, ordering the driver to put the truck in park. There were two individuals inside the truck; the driver appeared to be a light-skinned black male, and the passenger was a black male. The passenger‘s window was dоwn, and Officer Jones approached the passenger side of the vehicle. As Officer Edelsburg approached the driver‘s side of the vehicle, “the car takes off.” (Tr. 171.) Fearing that his partner was being dragged by the vehicle, Officer Edelsburg took his flashlight and hit the driver‘s side window, attempting to break the window or get the driver‘s attention.
{¶12} The officers then returned to their cruiser and engaged in pursuit of the vehicle. The officers drove westbound on Livingston Avenue and followed the vehicle through a residential area. Officer Edelsburg momentarily lost control of his cruiser because of snow on the road, delaying pursuit of the truck. The officers lost sight of the
{¶13} Columbus Pоlice Officer Jason Burkey and his partner also pursued the suspect‘s vehicle on the evening of December 10, 2008. Officer Burkey placed a computer search of the license plate number and determined the vehicle was registered to an individual named Lowell Poulson. The officers drove to an address on Venice Drive, and observed a vehicle matching the description with the same license number. The driver‘s side window of the vehicle was broken, with glass inside the car, including glass on the driver‘s seat. The officers noticed “pizza stuff” inside the vehicle. (Tr. 188.) The officers discovered a blue toboggan-type hat in the back of the truck, and they also collected a pair of gloves from the vehicle. The truck was impounded, and the officers turned the items collected over to the propеrty room.
{¶14} At trial, a stipulation was entered that, on December 11, 2008, police officers found pieces of broken glass in Lowell Poulson‘s shirt pocket, consistent with broken glass from the truck window. Columbus Police Detective Michael Longworth conducted an investigation of the robbery. As part of the investigation, he prepared a photo array, admitted at trial as State‘s Exhibit No. 21, which included a photograph of Lowell Poulson in the No. 2 position. The detective showed the array to Keri Richardson, and she identified Poulson‘s photograph from the array and signed a statement indicating: “I am one hundred percent positive that number two is the guy that held us in the back of the store.” (Tr. 232.)
{¶16} Dr. Ramen Tejwani, a forensic scientist with the Columbus Police Department‘s crime lab, testified that DNA analysis was conducted on the items collected by police. Specifically, DNA testing was performed on a pair of gloves recovered from the vehicle, as well as a blue knit hat, and samples of DNA from Poulson and appellant were taken for comparison. Tejwani testified that the DNA obtained from the gloves matched the DNA type obtained from Poulson, and that the DNA types collected from the knit hat matched DNA types obtained from the oral swab of appellant.
{¶17} Following the presentation of evidence, the jury returned verdicts finding appellant guilty of four counts of kidnapping, one count of aggravated robbery, and two counts of robbery. Additionally, the trial court found appellant guilty of one count of having a weapon while under disability. The trial court sentenced appellant by entry filed July 16, 2010.
{¶18} On appeal, аppellant sets forth the following two assignments of error for this court‘s review:
Assignment of Error No.1: The trial court erred in that Appellant‘s conviction was against the manifest weight of the evidence in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and Article 1, Sections 1, 10, and 16 of the Ohio Constitution.
Assignment of Error No. 2: The trial court erred when it improperly exposed the jury to inadmissible hearsay in violation of the Ohio Rules of Evidence.
{¶19} Under the first assignment of error, appellant contends that his conviction was against the manifest weight of the evidence because the state failed to prove his identity as one of the robbers.1 Appellant argues there are several important conflicts in the testimony presented at trial with respect to the issue of identity. Hе further asserts that the state presented no direct evidence proving that he was present at the Donato‘s Pizza store on the night of the robbery, arguing that none of the state‘s witnesses positively identified him as one of the robbers. Appellant maintains that, because of the lack of testimony positively identifying him as the robber, conflicts of evidence in this case caused the jury to lose its way and crеate a manifest miscarriage of justice requiring reversal of the conviction and ordering a new trial.
{¶20} In considering a defendant‘s claim that a jury verdict is against the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. Martin (1983), 20 Ohio App.3d 172, 175. Further, “[t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶22} With respect to the issue of identity, the state presented evidence that one of the robbers wore a blue “scarf-like mask.” (Tr. 141.) The state also presented testimony identifying the blue mask used in the robbery, as well as evidence that the mask was discovered in the back of the vehicle used by the two men in fleeing the scene of the rоbbery. During the testimony of Gomez, the state played a video surveillance tape taken during the incident, and Gomez identified on the tape the individual wearing a “dark blue” scarf. (Tr. 136.) The mask was discovered in the back of a Ford pickup truck registered to Lowell Poulson, whose truck was identified by witnesses as the vehicle leaving the scene of the robbery. Pizza items were also found inside the truck. The driver‘s side window was broken, and window glass was discovered inside the vehicle. At trial, a stipulation was entered that police officers discovered glass in the pocket of Poulson‘s shirt. DNA testing was conducted on a pair of gloves found inside the truck, and the DNA of Poulson was found on those gloves. Gomez positively identified Poulson from a photo array, and she chose a picture of appellant from an array as looking the most like one of the suspects. The blue mask recovered from Poulson‘s truck was also
{¶23} Appellant points to the lack of positive identification by the witnesses, and argues that many of the witnesses could not give a physical description of the perpetrators. However, “[t]he identity of the accused may be established by direct or circumstantial evidence.” State v. Harris, 12th Dist. No. CA2007-11-280, 2008-Ohio-4504, ¶12. See also State v. Liggins, 9th Dist. No. 24220, 2009-Ohio-1764, ¶11 (“Circumstantial and direct evidence have equal probative values [and] [c]ircumstantial evidence alone can be used to establish the identity of a perpetrator“). At trial, while the evidence indicated that the perpetrators covered their faces during the incident, several of the witnesses testified as to physical characteristics of the two men, including height, weight, and skin tone. Further, while Gomez was not 100 percent certain of any of the six photographs in the array, she narrowed down her choices to two, one of which depicted appellant (in the third position), and she told the detective that the individual in position No. 3 “looks the most like * * * one of the suspects.” (Tr. 236.)
{¶24} Here, the jury was free to consider the testimony of Gomez, as well as other evidence which included testimony thаt the blue mask used in the robbery and found in the vehicle pursued by police moments after the robbery contained the DNA of appellant. The lack of a “positive identification” was a matter for the trier of fact to weigh but, in light of the evidence presented, a reasonable jury could have concluded that appellant was
{¶25} Accordingly, finding that the convictions are not against the manifest weight of the evidence, appellant‘s first assignment of error is overruled.
{¶26} Under the second assignment of error, appellant argues that the trial court erred in exposing the jury to inadmissible hearsay evidence. Appellant points to the testimony of Detective Longworth regarding statements made to him by Donato‘s employee Richardson regarding the suspect‘s eyes. Specifically, at trial, the prosecutor asked the detective whether Richardson said “anything about one of the suspects’ eyes reminding her of somebody?” (Tr. 225.) Over an objection, the detective respondеd: “Yes. She said that one of the suspects’ eyes reminded her of a customer that came in the store.” (Tr. 226.) Richardson further stated that she gave the detective the name of an individual (Rogers), but that the detective did not follow-up with that information because of information pursued with respect to Poulson. Appellant argues that the testimony regarding Richardson‘s statements constituted inadmissible hearsay, asserted to show the truth of Richardson‘s identifying statements.
{¶27} At the time of the objection, the trial court determined that the statement was “not being offered for the truth of the matter asserted.” (Tr. 226.) Rather, the court agreed with the prosecutor‘s contention that the statement was being offered for purposes of investigation. In conjunction with its ruling, the court instructed the jury that “you should not consider what * * * Keri Richardson said that it‘s true, оnly to explain what actions this
{¶28}
{¶29} In the present case, we find no error with the trial court‘s determination that the statement at issue was not being offered for its truth, but rather to explain the course of the investigation and why the detective did not pursue a particular individual as a suspect. Further, as noted above, the court gave a cautionary instruction to the jury to “not consider” what Richardson told the detective as true, but rather “only to explain what actions this officer may have taken” and not for any other purpose. A jury is presumed to follow instructions provided by the court. State v. Williams, 10th Dist. No. 02AP-730, 2003-Ohio-5204, ¶49. Upon review, we agree with the trial court‘s determination that the statement was not hearsay, and we conclude that the trial court did not abuse its discretion in allowing its admission. Appellant‘s second assignment of error is without merit and is overruled.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.
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