State v. Morris

[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