[Cite as State v. Brown, 2013-Ohio-2665.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26409
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROBERT D. BROWN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 10 2767
DECISION AND JOURNAL ENTRY
Dated: June 26, 2013
CARR, Presiding Judge.
{¶1} Appellant, Robert Brown, appeals his conviction for aggravated robbery with a
firearm specification. Because Brown’s conviction is against the manifest weight of the
evidence, this Court reverses and remands for a new trial.
I.
{¶2} On September 3, 2011, someone robbed the EuroGyro restaurant’s “chuck
wagon” at gunpoint. The robber wore a mask that obscured the lower half of his face and was
dressed as though he had been playing basketball. A EuroGyro employee estimated that the
robber was about his own weight, but shorter. The employee could not identify a suspect from a
photo array.
{¶3} With no leads to go on, the police turned to reports of recent arrests within a one-
block radius of the robbery. Investigating officers learned that Brown, who “relatively matched”
the description given by the EuroGyro employee, had been arrested two times in the
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neighborhood. Both times, he had been in possession of a firearm. That information led police
to arrest him in connection with the EuroGyro robbery. He was charged with two counts of
aggravated robbery accompanied by firearm specifications and found guilty of one of the charges
after a bench trial. The trial court sentenced Brown to six years in prison. Brown appealed,
raising two assignments of error. Because his second assignment of error is dispositive of this
appeal, we address it first.
II.
ASSIGNMENT OF ERROR II
THE CONVICTIONS OF THE TRIAL COURT ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WAS
INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTIONS
BEYOND A REASONABLE DOUBT.
{¶4} Brown’s second assignment of error argues that the State did not produce
sufficient evidence demonstrating that he was the man who robbed EuroGyro and that even if the
evidence was sufficient, his conviction is against the manifest weight of the evidence. With
respect to the weight of the evidence, we agree.
{¶5} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether
the prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins, at 390 (Cook, J., concurring). In reviewing the evidence, we do not
evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks,
61 Ohio St.3d 259, 273 (1991). The State’s evidence is sufficient if it allows the trier of fact to
reasonably conclude that the essential elements of the crime were proven beyond a reasonable
doubt. Id.
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{¶6} The identity of a perpetrator must be proved by the State beyond a reasonable
doubt. State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, ¶ 12. As with any other
element, identity may be proved by direct or circumstantial evidence, which do not differ with
respect to probative value. State v. Gibson, 9th Dist. No. 23881, 2008-Ohio-410, ¶ 8. A
reviewing court, however, cannot “fill in the blanks” when the State fails to produce evidence
related to an essential element of an offense. Akron v. Garrett, 9th Dist. No. 24412, 2009-Ohio-
1522, ¶ 12, quoting State v. Heinish, 50 Ohio St.3d 231, 239 (1990).
{¶7} In this case, the evidence presented by the State would permit a trier of fact to
conclude beyond a reasonable doubt that Brown committed the crimes. Benjamin Poole, an
employee of EuroGyro, testified that he was working in the chuck wagon on September 3, 2011,
when the restaurant was robbed. Mr. Poole described the robber as a black male dressed as if he
had been playing basketball. The robber wore a mask on the lower half of his face.
{¶8} Akron Police Detective Robert Richardson testified that because there were no
leads to follow with respect to the robbery, he looked for possible suspects by reviewing “field
interviews” of individuals arrested near EuroGyro. In the course of his review, he discovered
that Brown had been arrested twice within a block radius of the robbery while in possession of a
firearm. Although Brown has challenged the admission of this testimony as other acts evidence
under Evid.R. 404(B), we must consider all of the evidence presented in evaluating the
sufficiency of the evidence. See generally State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593,
¶ 20, citing Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988). According to Detective Richardson,
Brown “relatively matched” Mr. Poole’s description of the robber. In this respect, the parties
stipulated that Brown is left-handed, and an employee of the Summit County Sheriff’s Office
testified that according to Brown’s booking sheet, he is five feet eleven inches tall.
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{¶9} Detective Michael Klein, an expert in forensic video image analysis, testified
about his expertise in his field, his methodology, and his observations after viewing the
surveillance video related to this case. Detective Klein noted two “possible identifiable features”
that the robber shared with the known images of Brown: “some curvature” to the right thumb and
“what [he] believe[d] to be tattooing” on the robber’s left arm. Viewing this video and still
frame evidence along with the testimony at trial in the light most favorable to the State, the
finder of fact could conclude beyond a reasonable doubt that Brown was the man who robbed
EuroGyro. With respect to the sufficiency of the evidence, therefore, Brown’s second
assignment of error is overruled.
{¶10} A conviction that is supported by sufficient evidence may nonetheless be against
the manifest weight of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
¶ 12. This is because the issues of sufficiency and weight are “both quantitatively and
qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the
syllabus. With respect to the weight of the evidence, the Ohio Supreme Court has explained:
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.
It indicates clearly to the jury that the party having the burden of proof will be
entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends on
its effect in inducing belief.”
Id. at 387, quoting Black’s Law Dictionary (6 Ed.1990) 1594. When an appellate court reverses
a conviction as against the manifest weight of the evidence, it views the record from the
perspective of the finder of fact without affording deference to the State and disagrees with the
factfinder’s resolution of conflicting evidence. See id. Consequently, this Court must:
review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether, in resolving conflicts
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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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing
State v. Martin, 20 Ohio App.3d 172, 175 (1st. Dist.1983). This is one such case.
{¶11} Benjamin Poole, who witnessed the robbery, estimated that the robber was shorter
than him, between five feet six inches and five feet seven inches tall, and that he weighed about
170-180 pounds. Brown, however, is about five feet eleven inches tall and of a lean build. Mr.
Poole did not notice any tattoos on the robber’s body, and when asked to consider a photo array,
he did not identify a suspect. Mr. Poole recognized Brown at trial because he lived across the
street from the chuck wagon and Mr. Poole knew him as a customer who frequented EuroGyro
on a regular basis. Mr. Poole testified that he did not think Brown was the robber.
{¶12} This Court has reviewed the video and the still frame photographs that were the
subject of Detective Klein’s testimony, and they do not reveal distinct similarities between
Brown and the robber. They do show shadows on the robber’s arm that could be explained as
tattoos, but they are not clearly so. In Detective Klein’s own words, the still frame photographs
depict “a blur pattern down the arm.” He further explained that “I can’t even tell you in the
video those are separate tattoos, yet in the known images [of Brown] we can see they are
separate tattoos.” In addition to expressing his inability to state with certainty what the video
depicts, this statement makes it plain that the assumption underlying his examination of the video
was that Brown is the person pictured. Indeed, Detective Klein agreed that his task as to inquire
whether there “is something on the unknown to compare to something on the known.” In other
words, Detective Klein examined the surveillance video with Brown in mind.
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{¶13} Assuming that the shadowed areas represent tattoos, the photographs seem to
indicate that the robber lacked tattoos in places in which Brown has them, and there is not
sufficient detail to demonstrate that the tattoos are the same. Similarly, it is not immediately
apparent that the photographs represent the same curvature of the right thumbs. Significantly,
the record does not contain any testimony explaining the significance of the curvature, such as
how frequently a curvature of this nature might be expected to occur in the population at large.
Although Detective Klein testified about his expertise, methodology, and observations, pursuant
to a ruling in limine he did not describe his conclusions regarding whether Brown is the man
pictured on the surveillance video. In addition, Brown’s own expert testified that the known
images of Brown are dissimilar from the surveillance images, containing more tattoos, tattoos
with different details, and different levels of consistency regarding ink patterns.
{¶14} The State introduced testimony related to a stipulated polygraph examination of
Brown, the results of which were consistent with deception. The results of a stipulated
polygraph examination, however, are only admissible to corroborate other evidence and to
impeach the defendant. State v. Souel, 53 Ohio St.2d 123 (1978), syllabus. The testimony of a
polygraph examiner does not tend to prove or disprove any element of the crime. Id.
{¶15} Brown is a black male who is left-handed. He owns a gun, and he lived near the
EuroGyro chuck wagon. He has tattoos on his arms and torso, and the robber might also have
tattoos in some of the same places – but there is little evidence from which one could conclude
that the tattoos are the same. Both may have some curvature in their thumbs, but there is no
evidence in the record that this is unique among the population as a whole. The only eyewitness
to the robbery does not believe that Brown is the robber. For these reasons, we conclude that this
is an exceptional case in which the weight of the evidence at trial weighs heavily against the
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conclusion that Brown is the person who robbed EuroGyro. Accordingly, although there was
sufficient evidence supporting Brown’s conviction, this Court concludes that his conviction is
against the manifest weight of the evidence, and his second assignment of error is sustained in
that respect.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE
OTHER ACTS EVIDENCE.
{¶16} Brown’s first assignment of error is moot, and we decline to address it. See
App.R. 12(A).
III.
{¶17} Brown’s second assignment of error is sustained with respect to the manifest
weight of the evidence. His first assignment of error is moot. The judgment of the Summit
County Court of Common Pleas is reversed, and this matter is remanded for a new trial.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
RODNEY A. BACA, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.