State v. Morris , 2019 Ohio 3184 ( 2019 )

[Cite as State v. Morris, 2019-Ohio-3184.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107674
v. :
DEL RICCO D. MORRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 8, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-617940-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kelly Needham, Assistant Prosecuting
Attorney, for appellee.
Kelly Zacharias, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Del Ricco Morris (“Morris”), appeals from his
convictions following a bench trial. He raises the following assignments of error for
review:
1. The trial court was without jurisdiction to conduct a bench trial
because the requirements of R.C. 2945.05 were not strictly followed.
2. Insufficient evidence supported appellant’s convictions.
3. Appellant’s convictions are against the manifest weight of the
evidence.
After careful review of the record and relevant case law, we affirm
Morris’s convictions and sentence.
I. Procedural and Factual History
In June 2017, Morris and his codefendants, Denzel Carr (“Denzel”)
and Rai’Shoun Morris (“Rai’Shoun”), were named in a 14-count indictment,
charging them each with aggravated robbery in violation of R.C. 2911.01(A)(1), with
one- and three-year firearm specifications (Count 1); robbery in violation of R.C.
2911.02(A)(1), with one- and three-year firearm specifications (Count 2); robbery in
violation of R.C. 2911.02(A)(2), with one- and three-year firearm specifications
(Counts 3-6); robbery in violation of R.C. 2911.02(A)(3), with one- and three-year
firearm specifications (Counts 7-10); and kidnapping in violation of R.C.
2905.01(A)(2), with one- and three-year firearm specifications (Counts 11-14). The
charges brought against Morris stemmed from allegations that he participated in
the armed robbery of a jewelry store located in Richmond Heights, Ohio.
In February 2018, Morris pleaded guilty to aggravated robbery and
kidnapping, as amended in Counts 1 and 11 of the indictment. The remaining counts
were nolled. Prior to the imposition of a sentence, however, Morris filed a motion
to withdraw his plea. The trial court granted Morris’s motion to withdraw and the
matter was scheduled for trial.
In August 2018, Morris appeared before the court and executed a
written waiver of his right to a trial by jury. In open court, Morris orally confirmed
that he signed the written waiver, that he understood the rights he was waiving, and
that it was his desire to waive a jury trial. The matter then proceeded to a bench
trial, where the following evidence was adduced.
On May 22, 2017, Susan Kozlowski, Steve Kozlowski, Erica Hollar,
Sydney Givens, and Bill Mavrakis (“Mavrakis”) were working at Sands Jewelry
Company in Richmond Heights, Ohio. At approximately 4:19 p.m., two masked men
entered the store with guns. Video footage of the incident was captured by the
store’s surveillance cameras.
Erica Hollar testified that she was working in the store’s main
showroom at the time of the incident. Hollar stated that when the masked men
walked inside the store, she noticed that each man had a gun. Hollar described the
first man as “a thin-build black man with a mask on, dark clothes.” She testified that
the second masked man was wearing “a very similar ensemble” and was
approximately the same height as the first man. Hollar estimated that the men were
“young adults.”
Hollar testified that when she encountered the masked men, she
“froze because they were saying, Don’t move.” Hollar stated that one of the men
then pointed his gun at her and ordered her to get on the ground. Hollar testified
that she was terrified and stayed on the ground and faced the wall until her boss,
Susan Kozlowski, told her to run out of the store. Hollar did not observe anything
while she was facing the wall, but heard one of the individuals tell Mrs. Kozlowski
“you have to give us something or we’re going to shoot somebody.”
Mrs. Kozlowski is the co-owner of the jewelry store. She testified that
at approximately 4:19 p.m. on May 22, 2017, she was working in the jewelry store
when she heard a commotion and saw her husband, Steven Kozlowski, running
towards the back of the building. Mrs. Kozlowski testified that when she realized
the store was being robbed, she confronted one of the masked men and yelled at him
to get out of her store. As the robbery was occurring, Mrs. Kozlowski observed
Hollar “on her knees with her hands over her head to protect herself.” Mrs.
Kozlowski also observed another store employee, Sydney Givens, hiding under a
table. When one of the masked men pointed his gun at the back of Hollar’s head,
Mrs. Kozlowski attempted to persuade him that it was “not worth killing somebody
over this.” The masked man responded, “I’m going to get me some.” Despite this
threat, Mrs. Kozlowski boldly told the masked man that they “aren’t going to get a
thing.” Ultimately, the masked men fled the scene without taking any of the store’s
property.
Mrs. Kozlowski testified that the masked men were African-
American. She further stated that “they were just wearing dark, head to toe, and
something over their faces.” Mrs. Kozlowski testified that the gun she observed
pointed at Hollar was “a silver color.” However, Mrs. Kozlowski admitted that she
was not wearing her eyeglasses at the time of the robbery and, therefore, was not
able to see the two men clearly.
Steven Kozlowski testified that on the day of the incident, he was
working in the front main showroom of the store with Hollar and Givens. Mr.
Kozlowski testified that he began to walk towards the back of the store to speak with
Mrs. Kozlowski when he was suddenly confronted by a masked man holding a gun.
Mr. Kozlowski testified that he saw two masked men in the store and that both men
were in possession of a gun. One of the masked men pointed a gun directly at Mr.
Kozlowski and stated, “Don’t move, don’t move.” Despite the masked man’s
directives, however, Mr. Kozlowki ran down the hallway towards the back of the
building. Once inside a secure location, Mr. Kozlowski called 911. The 911 call was
played during trial.
While standing by the backdoor of the store, Mr. Kozlowski noticed a
suspicious car that was parked near the back of the property that “certainly didn’t
belong there.” Mr. Kozlowski suspected the car was the “get-away car” and had store
employee, Bill Mavrakis, take photographs of the car and its license plate. While this
was occurring, Mr. Kozlowski suddenly observed “the two guys walk right by us
fairly slowly, masks are off.” Mr. Kozlowski clarified that his statement regarding
“the two guys” referred to “the two guys that were in the store with the guns.” Mr.
Kozlowski explained that he was able to identify the men as the masked robbers
because “they had masks and they were dressed exactly the same.” Mr. Kozlowski
noted their dark clothing, their gloves, and the stripe on one of the men’s pants. Mr.
Kozlowski further stated that he could see that the men still had their masks and
that they attempted to “try to make a move to put [their] masks back up” once they
noticed Mr. Kozlowski and Mavrakis. Mr. Kozlowski testified that he was able to get
a good look at one of the individuals, whom he identified in court as being Morris.
In addition, Mr. Kozlowski expressed that he was confident Morris was the
individual who pointed a gun at him inside the jewelry store because the
perpetrator’s face was only covered from his nose down, and Morris has “very
distinctive eyes.”
When the two men “started to run” from the scene, Mavrakis
immediately began chasing them on foot. At that point, Mr. Kozlowski got into his
own vehicle and followed the two men as they ran. Mr. Kozlowski testified that he
observed the men get into a “gold colored car” that was driven by a third individual.
Mr. Kozlowski stated that he provided the 911 dispatcher the license plate number
of the gold car and proceeded to follow the gold car through the streets of Cleveland
until he was ordered by the police to stand down.
Mavrakis testified that he was working as an independent contractor
at the jewelry store on May 22, 2017. During the robbery, Mavrakis was located in
the rear repair shop of the store with Mrs. Kozlowski. Mavrakis testified that he and
Mrs. Kozlowski “heard a noise” and saw Mr. Kozlowski “running down the hallway,
which was very odd.” When they went to the nearby hallway to investigate, Mavrakis
observed a masked man with a gun. Mavrakis testified that while Mrs. Kozlowski
was confronting a masked man, Mr. Kozlowski grabbed him, took him outside, and
stated, “We’re being robbed.” Once outside, Mavrakis took photographs of a
suspicious vehicle. Shortly thereafter, Mavrakis observed a man walking near the
back of the property. Mavrakis testified that he “assumed” that the man he observed
walking was the masked gunman he previously observed in the store. Mavrakis
testified that the man was not wearing the mask over his face at that time. However,
when the man noticed Mavrakis, “he pulled a mask back onto his head.” Mavrakis
stated that the man “was struggling to pull it (the mask) on because he still had the
gun in his hand.” Mavrakis stated that a second individual joined the walking man
several seconds later. Once the men noticed Mavrakis, “they both ran.” Mavrakis
attempted to chase after them but quickly “lost track of them.”
Detective Charles Duffy of the City of Richmond Heights Police
Department, testified that he was assigned to investigate the jewelry store robbery.
In the course of his investigation, Det. Duffy used the license plate number provided
by Mr. Kozlowski to determine that the gold car was registered to Lamar Carr. Upon
contacting Carr, Det. Duffy learned that either Carr’s parents or brother,
codefendant Denzel Carr, were in possession of the car on the day of the robbery.
Det. Duffy testified that Lamar Carr provided him with Denzel’s cell-phone number.
In turn, Det. Duffy contacted Denzel’s cell-phone provider and “sent an exigent
circumstance request for immediate pings and traces on that cell phone.” Shortly
thereafter, the cell-phone provider sent Det. Duffy “longitude and latitude pings
from [Denzel’s] cell phone” which led to the recovery of the unoccupied vehicle in
Cleveland, Ohio.
Denzel was eventually brought into the police station by his father.
Det. Duffy testified that Denzel provided an alibi and indicated that he had
previously reported the vehicle as stolen. However, after Denzel was released, Det.
Duffy investigated Denzel’s alibi and determined that his statements were false.
Accordingly, Det. Duffy issued a warrant for Denzel’s arrest.
When Denzel was arrested several days later, he provided a second
written statement to Det. Duffy, implicating Rai’Shoun Morris and Morris as the two
men who robbed the jewelry store. Following Denzel’s arrest, Det. Duffy obtained a
search warrant to conduct a forensic examination of Denzel’s cell phone. In
addition, Det. Duffy used information provided by Denzel to locate a cell phone
behind Denzel’s home that was “believed to be [Morris’s] phone.” Det. Duffy
testified that he also obtained a warrant to have Morris’s cell phone manually
searched.
At that point, Det. Duffy was able to see the text message and call
records from Denzel and Morris’s personal cell phones. Det. Duffy testified that the
phone records corroborated Denzel’s statement that he had conversations with
Morris leading up to the robbery. Relevant to this appeal, the following text
messages were exchanged between Denzel and Morris:
DENZEL: gotchu [May 21, 2017 at 10:49 a.m.]
MORRIS: Ima bless you. You tryna drive me to hit this lick on
Monday? [May 21, 2017 at 10:49 a.m.]
DENZEL: Lee Road. Where the play at? [May 22, 2017 at 11:06 a.m.]
MORRIS: In Richmond it’s for the bands too. [May 22, 2017 at 11:22
a.m.]
DENZEL: Wya [May 22, 2017 at 1:25 p.m.]
MORRIS: My bad I was on the toilet lol here I come. [May 22, 2017 at
1:25 p.m.]
DENZEL: lol bet [May 22, 2017 at 1:25 p.m.]
Det. Duffy testified that the term “bands” refers to a large amount of
money. He further testified that the terms “play” or “lick” refer to criminal activity,
and that Denzel’s use of the term “bet” meant he and Morris had a deal.
Det. Duffy also testified about a series of text messages sent between
Morris and an individual listed as “Lil Bit.” In a text message sent at 4:11 p.m. on
May 22, 2017, Lil Bit asked Morris “where’s my gun at?” Just before the robbery
occurred, Morris responded, “I’m on my way. Where you at[?]” and “It took a
minute.” Morris also received a text message on May 19, 2017, from a person listed
as “Momma Digga” asking “you got my gun rico [sic]?” In addition, the phone
records reflect that after the robbery occurred, Denzel received a text message on
May 22, 2017, at 5:02 p.m. from Rai’Shoun’s cell phone that stated, “Call me this
Ricco.” At 5:03 p.m., Denzel called Rai’Shoun’s cell phone.
Det. Duffy then provided extensive testimony concerning the
information he gathered from the data obtained from his exigent circumstances
request. Using cell-phone tower pings from Denzel’s cell phone, Det. Duffy was able
to construct a map of his travel on May 22, 2017. In summary, Det. Duffy testified
that during a time period immediately following the robbery, the cell phone ping
data indicated that Denzel’s phone traveled “from Richmond Heights westbound
towards Cleveland in the direction of where Denzel said he dropped off [Morris] and
his brother. And then from there they headed in an easterly direction towards
Warrensville Heights to where [Denzel’s] vehicle was recovered.”
In the course of his investigation, Det. Duffy also obtained and
reviewed surveillance footage taken from inside the jewelry store during the
robbery. A still photograph of one of the masked men was generated from the video
footage. Det. Duffy testified that he was able to identify Morris as the masked man
based on Morris’s distinct eyes, forehead, and hairline.
Following his investigation, Det. Duffy obtained warrants for the
arrest of Morris and his brother, Rai’Shoun. When Rai’Shoun was brought into the
police station, he denied having any involvement in the robbery. At trial, Rai’Shoun
testified that on the day of the robbery, he left his home to go to a local convenient
store. When he came home, he discovered Morris in his bedroom “around five
o’clock.” Morris had a gun in his hand and asked Rai’Shoun to “hold” the gun for
him. Rai’Shoun testified that Morris was upset and agitated, but would not tell
Rai’Shoun what was wrong. Morris then asked to borrow Rai’Shoun’s cell phone.
Rai’Shoun testified that he believed Morris texted Denzel, but that Morris deleted
the text message before giving Rai’Shoun his phone back. In addition, Rai’Shoun
heard Morris talking on the phone with “somebody.” When presented with phone
records, Rai’Shoun testified that he did not place any outgoing calls while Morris
was in his home.
During his direct examination, Rai’Shoun admitted that he previously
made statements to the police that implicated Morris in the robbery. For instance,
he conceded that he told the police “they told me what they did, and after, I kicked
both of them out.” However, Rai’Shoun testified that when he spoke with the police,
he was “nervous and just wanted to get out of the situation that [he] was in.”
Rai’Shoun denied having any involvement in the robbery and insinuated that the
statements he made to the police that were used to implicate Morris were lies.
Denzel testified on behalf of the state. Denzel testified that he pleaded
guilty to offenses for his involvement as the getaway driver of this robbery. However,
throughout his direct examination, Denzel denied having any knowledge of the
robbery and alleged that his statement to Det. Duffy was the product of coercion.
With that said, Denzel admitted that on May 22, 2017, he picked up
Morris and Rai’Shoun in his vehicle and drove them to the area where the jewelry
store is located. He stated that Morris and Rai’Shoun then got out of his car.
According to Denzel, he did not know what Morris and Rai’Shoun were planning to
do when they left his car. However, he admitted that he “sort of had an idea” and
believed it “was going to be a drug deal.” When Morris and Rai’Shoun finally
returned to his car, they were being followed by a truck. Denzel testified that the
truck followed them until he managed to lose the truck on the freeway. After Denzel
dropped Morris and Rai’Shoun off, Denzel noticed that someone had left a cell
phone in his car. Denzel stated that he threw the cell phone in the back yard of his
house “just in case.”
Morris testified on his own behalf. At all times, Morris has denied
participating in the robbery of the jewelry store. However, Morris admitted that he
was with Denzel on May 22, 2017. Regarding their text message conversations,
Morris stated that he and Denzel orchestrated a plan to burglarize the home of a
local drug dealer. Morris testified that the plan stalled when he told Denzel that he
did not want to rob the drug dealer at gunpoint. Although Morris admitted that he
had a gun in his possession that day, he testified that it was not in his nature to rob
someone at gunpoint. According to Morris, Denzel became very upset when he
refused to participate in the armed robbery. He stated that he got out of Denzel’s
car to avoid a confrontation, but accidently left his cell phone inside Denzel’s car.
Morris testified that he later used his brother’s cell phone to call Denzel in the
attempt to retrieve his phone from Denzel. Morris testified that he was not in
Richmond Heights on the day of the jewelry store robbery and that Denzel never
returned his cell phone.
At the conclusion of trial, the court found Morris guilty of all counts
and accompanying firearm specifications. He was sentenced to an aggregate 12-year
prison term.
Morris now appeals from his convictions.
II. Law and Analysis
A. Jury Waiver
In his first assignment of error, Morris argues the trial court was
without jurisdiction to conduct a bench trial without strictly following the
requirements of R.C. 2945.05.
A criminal defendant’s right to a jury trial is guaranteed in the Sixth
and Fourteenth Amendments to the United States Constitution and Article I,
Sections 5 and 10, of the Ohio Constitution. State v. Burnside, 186 Ohio App. 3d 733,
2010-Ohio-1235, 930 N.E.2d 372, ¶ 45 (2d Dist.). Regarding serious offenses, an
accused may not be deprived of this right unless it is knowingly, intelligently, and
voluntarily waived. See Duncan v. Louisiana, 391 U.S. 145, 154, 88 S. Ct. 1444, 20
L. Ed. 2d 491 (1968); R.C. 2945.05; Crim.R. 23(A).
Crim.R. 23(A) provides, in relevant part:
In serious offense cases the defendant before commencement of the
trial may knowingly, intelligently and voluntarily waive in writing his
right to trial by jury. Such waiver may also be made during trial with
the approval of the court and the consent of the prosecuting attorney.
R.C. 2945.05 sets forth the manner in which a defendant may waive
his or her right to a jury trial. State v. Lomax, 114 Ohio St. 3d 350, 2007-Ohio-4277,
872 N.E.2d 279, ¶ 6. The statute provides as follows:
In all criminal cases pending in courts of record in this state, the
defendant may waive a trial by jury and be tried by the court without a
jury. Such waiver by a defendant, shall be in writing, signed by the
defendant, and filed in said cause and made a part of the record thereof.
It shall be entitled in the court and cause, and in substance as follows:
“I ____, defendant in the above cause, hereby voluntarily waive and
relinquish my right to a trial by jury, and elect to be tried by a Judge of
the Court in which the said cause may be pending. I fully understand
that under the laws of this state, I have a constitutional right to a trial
by jury.”
Such waiver of trial by jury must be made in open court after the
defendant has been arraigned and has had opportunity to consult with
counsel. Such waiver may be withdrawn by the defendant at any time
before the commencement of the trial.
Under the plain language of Section 2945.05, the entirety of a
defendant’s jury-trial waiver must be in writing. R.C. 2945.05; Lomax at ¶ 9. The
Ohio Supreme Court explained that “to be valid, a waiver [under Section 2945.05]
must meet five conditions. It must be (1) in writing, (2) signed by the defendant, (3)
filed, (4) made part of the record, and (5) made in open court.” Id.
The Ohio Supreme has held that, “[a]bsent strict compliance with the
requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant
without a jury.” State v. Pless, 74 Ohio St. 3d 333, 658 N.E.2d 766 (1996), paragraph
one of the syllabus. Although “Ohio courts have declined to find that the language
of the waiver must be a verbatim recitation of R.C. 2945.05,” the content of the
waiver must be in “[s]ubstantial compliance” with the suggested language. State v.
Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 32, quoting State v.
Woodbridge, 9th Dist. Summit No. 26911, 2014-Ohio-1338, ¶ 6, citing State v.
Webb, 10th Dist. Franklin No. 10AP-289, 2010-Ohio-6122, ¶ 26-27.
On appeal, Morris argues his written waiver did not strictly comply
with R.C. 2945.05 because it contained language that varied from the language set
forth in the statute. Here, Morris’s jury waiver provided, in its entirety:
I, Del Ricco Morris, the Defendant in this cause, hereby voluntarily
waive and relinquish my right to a jury by trial, and elect to be tried to
a judge of this Court of Common Pleas. I understand that I have a right,
under the Constitutions and laws of both the United States and the
State of Ohio, to a trial by a jury of twelve, and that no verdict could be
made by a jury, except by agreement of all twelve members of that jury.
I further state that no threats or promises have been made to induce
me to waive this right, and that I am not under the influence of any
drugs, alcohol, or medication that would affect my decision.
After careful consideration, we are unpersuaded by Morris’s
argument. Undoubtedly, Morris’s written jury waiver does not track the language
used in R.C. 2945.05 verbatim. However, viewing the waiver in its entirety, it is clear
the language used therein incorporates the strict requirements of R.C. 2945.05. In
our view, the additional terms contained in Morris’s written jury waiver did not
impair the trial court’s jurisdiction to try Morris without a jury. At the very least,
Morris’s written waiver substantially complied with the language of R.C. 2945.05.
In addition, our review reflects that the waiver was (1) in writing, (2) signed by the
defendant, (3) filed, (4) made part of the record, and (5) made in open court. We
further note that Morris specifically confirmed in open court that he signed the
written waiver, that he understood the rights he was waiving, and that it was his
desire to waive a jury trial. Thus, the record demonstrates that Morris knowingly,
intelligently, and voluntarily waived his right to a jury trial in writing. See Crim.R.
23(A).
Under the foregoing circumstances, we are unable to conclude that
the trial court erred by proceeding with the bench trial. Morris’s first assignment of
error is overruled.
B. Sufficiency and Manifest Weight of the Evidence
In his second assignment of error, Morris argues his convictions were
not supported by sufficient evidence. In his third assignment of error, Morris argues
his convictions were against the manifest weight of the evidence. Because Morris
raises similar arguments in each, we address these assigned errors together for
clarity.
When assessing a challenge to the sufficiency of the evidence, a
reviewing court examines the evidence admitted at trial and determines whether
such evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. “The 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.” Id. A reviewing court is not to assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Thompkins, 78 Ohio St. 3d 380, 390, 678
N.E.2d 541 (1997).
It is well established that the elements of an offense may be proven by
direct evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St. 3d
86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness testifies about a
matter within the witness’s personal knowledge such that the trier of fact is not
required to draw an inference from the evidence to the proposition that it is offered
to establish.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047,
¶ 13. Circumstantial evidence, on the other hand, is evidence that requires “the
drawing of inferences that are reasonably permitted by the evidence.” Id. See also
State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37
(“[c]ircumstantial evidence is the proof of facts by direct evidence from which the
trier of fact may infer or derive by reasoning other facts in accordance with the
common experience of mankind.”).
Circumstantial and direct evidence are of equal evidentiary value.
State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. “Although
there are obvious differences between direct and circumstantial evidence, those
differences are irrelevant to the probative value of the evidence.” Cassano at ¶ 13,
citing State v. Treesh, 90 Ohio St. 3d 460, 485, 739 N.E.2d 749 (2001). In some
cases, circumstantial evidence may be “‘more certain, satisfying and persuasive than
direct evidence.’” State v. Lott, 51 Ohio St. 3d 160, 167, 555 N.E.2d 293 (1990),
quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S. Ct. 6, 5 L. Ed. 2d
20 (1960).
Circumstantial evidence is sufficient to establish the identity of the
accused as the person who committed the crime. In re A.W., 8th Dist. Cuyahoga No.
103269, 2016-Ohio-7297, ¶ 28, citing State v. Lawwill, 12th Dist. Butler No.
CA2007-01-014, 2008-Ohio-3592, ¶ 11. And “[a] conviction can be sustained based
on circumstantial evidence alone.” State v. Franklin, 62 Ohio St. 3d 118, 124, 580
N.E.2d 1 (1991), citing State v. Nicely, 39 Ohio St. 3d 147, 154-155, 529 N.E.2d 1236(1988).
A manifest weight challenge questions whether the state met its
burden of persuasion. State v. Freeman, 8th Dist. Cuyahoga No. 106374, 2018-
Ohio-3587, ¶ 18. To determine whether a conviction is against the manifest weight
of the evidence, the reviewing court must look at the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. Thompkins, 78 Ohio St. 3d 380, at 388, 678
N.E.2d 541. An appellate court will reverse a conviction as against the manifest
weight of the evidence only in the most exceptional case in which the evidence
weighs heavily against the conviction. Id.
Although we review credibility when considering the manifest weight
of the evidence, we are cognizant that determinations regarding the credibility of
witnesses and the weight of the testimony are primarily for the trier of fact. State v.
Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v.
DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to
view the witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” State
v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. “The jury
may take note of any inconsistencies and resolve them accordingly, ‘believ[ing] all,
part, or none of a witness’s testimony.’” State v. Burks, 8th Dist. Cuyahoga No.
106639, 2018-Ohio-4777, ¶ 48, quoting State v. Raver, 10th Dist. Franklin No.
02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
In this case, Morris was convicted of aggravated robbery in violation
of R.C. 2911.01(A)(1), with one- and three-year firearm specifications (Count 1);
robbery in violation of R.C. 2911.02(A)(1), with one- and three-year firearm
specifications (Count 2); robbery in violation of R.C. 2911.02(A)(2), with one- and
three-year firearm specifications (Counts 3-6); robbery in violation of R.C.
2911.02(A)(3), with one- and three-year firearm specifications (Counts 7-10); and
kidnapping in violation of R.C. 2905.01(A)(2), with one- and three-year firearm
specifications (Counts 11-14).
R.C. 2911.01(A)(1) defines aggravated robbery as:
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after
the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under
the offender’s control and either display the weapon, brandish it,
indicate that the offender possesses it, or use it.
Morris’s robbery offenses are governed by R.C. 2911.02. The statute
provides, in relevant part:
(A) No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under
the offender’s control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on
another;
(3) Use or threaten the immediate use of force against another.
Finally, R.C. 2905.01(A)(2), prohibiting kidnapping, provides:
(A) No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall
remove another from the place where the other person is found or
restrain the liberty of the other person, for any of the following
purposes:
***
(2) To facilitate the commission of any felony or flight thereafter[.]
On appeal, Morris does not dispute any specific element of his
convictions. Rather, he broadly disputes the state’s identification evidence, arguing
that the state failed “to prove, beyond a reasonable doubt, that [he] was one of the
persons who entered the jewelry store.” Morris notes that “four of the five
eyewitnesses” were unable to identify the perpetrators inside the store because they
were wearing masks. In an effort to avoid the implications of Mr. Kozlowski’s
identification testimony, Morris argues that Mr. Kozlowski could only identify
persons observed outside the store after the robbery occurred. Morris further
maintains that the state “relied heavily on the self-serving testimony” of his
codefendants, who admitted that they only told the police what they wanted to hear
in order to mitigate the charges pursued against them individually.
In challenging the weight of the evidence supporting his convictions,
Morris relies on “the reasons outlined as to why the evidence adduced at trial was
insufficient.” He further reiterates that the state’s case relied heavily on the “self-
serving testimony of Rai’Shoun and Denzel.”
After careful review of the record in its entirety, we find Morris’s
arguments to be unpersuasive. Here, the evidence presented at trial indicated that
in the midst of the incident, Mr. Kozlowski made his way to the back of the building
and called 911. While standing near the back door of the building, Mr. Kozlowski
observed two men walking towards the back of the property. The men were
approximately 20 feet away from Mr. Kozlowski and he was able to clearly observe
one of the men’s faces. In court, Mr. Kozlowski identified Morris as the man who
“he was able to get a good look at.” Mr. Kozlowski indicated that he was certain the
two men were the same individuals that had just brandished firearms in his store
moments earlier.
In an effort to explain the basis of his identification testimony, Mr.
Kozlowski testified that the two men he observed walking were wearing the same
clothing as the two masked men. In addition, Mr. Kozlowski expressed that the two
men were still wearing their masks, although they were now pulled down and no
longer covering their faces. Mr. Kozlowski further noted that Morris has “very
distinctive eyes,” and identified Morris in court as the individual who pointed a gun
at him inside the jewelry store. Mr. Kozlowski explained that even though Morris
was wearing a mask inside the store, his eyes were not covered. Significantly, Mr.
Kozlowski’s description of the men seen walking outside the store just moments
after the robbery, including their skin tone, clothing, and body type, matched the
video images of the masked men captured on the surveillance footage of the robbery.
Mr. Kozlowski’s testimony was corroborated by Mavrakis, who
testified that he also observed two men walking towards the back of the property
moments after the robbery. Mavrakis testified that he assumed the men were the
same individuals who had just brandished firearms in the store. Mavrakis testified
that although the men did not have their masks on while they were walking, one of
the men “pulled the mask back onto his head” once he “saw us out there.” Mavrakis
even stated that the man struggled to pull his mask over his face because he still had
his gun in his hand.
Viewing this evidence in a light most favorable to the prosecution, we
find a reasonable factfinder could find the state presented sufficient evidence of
identification. However, we note that the state’s case did not rely exclusively on
identification testimony. Here, Det. Duffy provided extensive testimony concerning
the scope of his investigation, including the recovery of phone records, phone data,
and his interviews of Rai’Shoun and Denzel. The relevant phone records
demonstrated that shortly before the robbery occurred, Morris and Denzel
exchanged text messages regarding their plan to “hit a lick” in Richmond Heights.
Denzel further provided testimony indicating that he drove Morris and Rai’Shoun
in a gold-colored vehicle to an area located near the jewelry store and dropped them
off. Denzel then waited in his car for an unspecified period of time. When Morris
and Rai’Shoun finally returned to Denzel’s car, they were being followed by another
vehicle that chased them until they reached the interstate. This corresponds with
Mr. Kozlowski’s testimony that he chased the suspects and their getaway car until
he was ordered by the police to stand down.
The state further introduced cell-phone tower data that mapped the
location of Denzel’s cell phone on May 22, 2017. Collectively, the data corroborated
Denzel’s testimony that he was in Richmond Heights during the approximate time
of the robbery and subsequently drove westbound towards the location where he
stated he dropped Morris and Rai’Shoun off after the robbery occurred.
Finally, the state introduced testimony from Morris’s brother,
Rai’Shoun. In relevant part, Rai’Shoun testified that he discovered Morris in his
bedroom shortly after the robbery took place. According to Rai’Shoun, Morris was
in possession of a firearm, asked him to hold the firearm, was agitated, and indicated
that “something had gone wrong.” Morris then borrowed Rai’Shoun’s cell phone to
contact Denzel. Rai’Shoun further admitted that in his written police statement, he
had told the police that Morris had told him “about the incident” and “what they had
did.”
Viewing this evidence together with the identification testimony, we
find the state presented sufficient evidence to support Morris’s aggravated robbery,
robbery, and kidnapping convictions.
Moreover, we are unable to conclude that this is the exceptional case
in which the evidence weighs heavily against Morris’s convictions. Regarding Mr.
Kozlowski’s testimony, we find his identification of Morris was supported by
reasonable inferences. Here, Mr. Kozlowski consistently stated that Morris was the
masked man who pointed a gun at him inside the store during the robbery and the
individual he observed walking outside the jewelry store moments after the robbery.
Mr. Kozlowski explained that Morris was just feet away from him at the time the gun
was pointed at him during the robbery and that he was able to get a good look at
Morris’s eyes, which he described as being “very distinctive.” In addition, Mr.
Kozlowski testified that he clearly observed Morris’s face as he walked past him
without his mask on after the robbery occurred. Mr. Kozlowski stated that he was
confident the two men were the same individuals who carried out the robbery, as
they were dressed exactly the same, were still wearing masks and gloves, and fled
the scene once they noticed Mr. Kozlowski and Mavrakis.
Similarly, we find no merit to Morris’s contention that the state’s case
relied on the fabricated statements of his codefendants. On appeal, Morris
continuously references the fact that Rai’Shoun and Denzel testified that their
statements to the police implicating Morris were the product of coercion and were
made in an effort to protect themselves. While the record clearly reflects that
Rai’Shoun and Denzel’s testimony was inconsistent with the statements they
originally made to the police, defense counsel had the opportunity to thoroughly
cross-examine the witnesses about their motives at the time their original
statements were made. On this record, it is evident that Rai’Shoun and Denzel did
not wish to participate or cooperate with the prosecution of Morris. The trial court,
as the trier of fact, was in the best position to weigh their testimony and was free to
believe all, part, of none of their testimony. Here, while portions of Rai’Shoun and
Denzel’s testimony contained inconsistent or intentionally vague statements, their
testimony collectively provided the trier of fact with information concerning
Morris’s involvement in the planning of the robbery, his presence at the scene of the
robbery, and the actions he took after the robbery occurred. Deferring to the trial
court’s assessment of credibility, we find Morris’s convictions were supported by the
manifest weight of the evidence
Morris’s second and third assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR