[Cite as State v. Jones, 2011-Ohio-4013.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :   C.A. CASE NO. 24075

vs.                                              :    T.C. CASE NO. 09CR2740/1

BRANDON D. JONES                                  :   (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                       :

                                       . . . . . . . . .

                                            O P I N I O N

                   Rendered on the 12th day of August, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Atty. Reg.
No.0069384, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422
     Attorneys for Plaintiff-Appellee

Christopher W. Thompson, Atty. Reg. No.0055379, 130 W. Second
Street, Suite 2050, Dayton, OH 45402
     Attorney for Defendant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Brandon Jones, appeals from his conviction

and sentence for aggravated robbery and possession of crack

cocaine.

        {¶ 2} On August 21, 2009, between 3:00 and 4:00 a.m., Antanyis
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Alston stepped outside his brother’s apartment at 2905 Wexford

Place in Dayton to smoke a cigarette.      While outside, Alston was

beaten and robbed by three men.   Defendant, who Alston recognized

from the neighborhood and knew only as “B,” pointed a gun at Alston

and demanded that Alston “give him everything.”       Defendant and

his accomplices took Alston’s money, cigarettes, cell phone and

other items.    Defendant pistol whipped Alston.     Another of the

men Alston knew as “D’AK” hit Alston with a mop.     The third man,

who Alston did not know, punched Alston.    Finally, Defendant fired

a shot into the ground near Alston’s feet before all three suspects

ran off.

     {¶ 3} Alston’s brother, Kion, was inside his apartment and

heard the gunshot.    When Kion Alston opened the door, he saw

Antanyis Alston’s face was injured and that he was bleeding.   Kion

Alston told his brother to run to their sister’s house in case

the assailants returned.     Antanyis Alston called his sister,

Monique Boykin, told her what had happened, and then ran over to

her house, which was only ten minutes away by foot.     After Alston

arrived at Boykin’s house, paramedics were called and they took

Alston to the hospital.   Alston talked with Dayton police at the

hospital, and from the information Alston provided police began

searching for D’Akshun Winston, whom police found and arrested

the next day.   Alston’s cell phone was found in Winston’s pocket.
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     {¶ 4} Alston was subsequently shown a set of photographs by

Detective Ritchey in an effort to identify the person Alston knew

as “B.”    Alston identified Defendant as “B,” the gunman who pistol

whipped him and fired the shot.           After his arrest, Defendant

admitted to police that he hangs around the neighborhood where

Alston was robbed and that he knows “D’AK,” but he denied any

involvement in Alston’s robbery.      Defendant was unable to recall

where he was at the time of the robbery.

     {¶ 5} Defendant was indicted on one count of aggravated

robbery,    R.C.    2911.01(A)(1),   with    a   three   year     firearm

specification, R.C. 2941.145, and one count of possessing crack

cocaine, less than one gram, in violation of R.C. 2925.11(A).

Following a jury trial, Defendant was found guilty of the aggravated

robbery    charge   and   the   firearm   specification.        Defendant

subsequently entered a guilty plea to the cocaine possession

charge.    The trial court sentenced Defendant to three years on

the aggravated robbery charge, plus an additional and consecutive

three years on the firearm specification.         The court imposed a

concurrent six months sentence on the cocaine possession charge,

for a total sentence of six years.

     {¶ 6} Defendant timely appealed to this court.

     FIRST ASSIGNMENT OF ERROR

     {¶ 7} “THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
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THE EVIDENCE.”

      {¶ 8} A   weight   of    the   evidence   argument    challenges      the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive.     State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563.      The proper test to apply to that inquiry is the one

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:

      {¶ 9} “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the

evidence, the jury lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.”         Accord: State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52.

      {¶ 10} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve.     State v. DeHass (1967), 10 Ohio St.2d 230.               In State

v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:

      {¶ 11} “Because the factfinder . . . has the opportunity to

see   and   hear   the   witnesses,     the   cautious     exercise    of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial      deference     be    extended   to   the     fact     finder’s
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determinations of credibility.   The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the fact finder, who has seen and heard

the witness.”

     {¶ 12} This court will not substitute its judgment for that

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict.      State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

     {¶ 13} Defendant argues that his conviction for aggravated

robbery in violation of R.C. 2911.01(A)(1) is against the manifest

weight of the evidence because it is based entirely upon the

testimony of the victim, Antanyis Alston, which is inconsistent,

contradicts the testimony of other witnesses, and not worthy of

belief.

     {¶ 14} The pivotal issue at Defendant’s trial was whether he

was one of the three assailants who robbed and beat Antanyis Alston.

 Defendant argues that since there was no physical evidence or

other witnesses that corroborated Alston’s identification of

Defendant, and because Alston’s testimony was not worthy of belief,

the jury lost its way in finding Defendant guilty.

     {¶ 15} Alston consistently acknowledged from the beginning that

he did not know Jones’ real name, but that he had seen him in the
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neighborhood several times, recognized him, and knew him as “B.”

 In talking with police, Defendant admitted that he hangs around

the neighborhood where this robbery occurred.          Alston’s sister,

Monique Boykin, confirmed that when Alston called to tell her that

he had been beaten and robbed, he said: “‘B’ hit me with a gun.”

 The   next   day   Alston   positively   identified    Defendant   from

photographs as “B,” one of the three assailants who beat and robbed

him.

       {¶ 16} In attempting to discredit Alston’s identification of

him, Defendant points out that Alston’s brother, Kion, testified

that Alston never told him the names of the persons who robbed

him.    That is understandable given that Alston did not know their

real names.    Defendant further points to the testimony of Officer

Watkins that while speaking with Alston at the hospital, Alston

gave the name “D’AK,” but was unable to give the names of any of

the other assailants.        Alston acknowledged, however, that he

provided only descriptions of the other two assailants because

he did not know their real or street names.

       {¶ 17} Defendant   argues   that    Alston’s     testimony   was

inconsistent regarding the place where this robbery occurred.

Alston consistently testified that he was robbed outside his

brother’s apartment, which is in the Hilltop Homes neighborhood.

 Alston’s brother, Kion, testified that he heard a gunshot outside
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his door at 2905 Wexford Place, which is in the Hilltop Homes

neighborhood, and when he opened the door Alston, who had been

beaten, told him he had just been robbed.       Alston’s sister, Monique

Boykin, testified that Alston told her he had been robbed outside

his brother’s apartment.          It was Officer Watkins who gave

conflicting testimony regarding what Watkins remembered Alston

saying about where the robbery took place.           In any event, where

the robbery took place has little or nothing to do with the

reliability of Alston’s identification of Defendant as one of the

perpetrators.

     {¶ 18} With   respect   to   the   time   of   the   robbery,   Alston

consistently testified that it occurred between 3:00 and 4:00 a.m.

on August 21, 2009.     Alston’s brother, Kion, testified that he

heard the gunshot around 4:00 a.m.             Alston’s sister, Monique

Boykin, testified that Alston called her between 3:00 and 4:00

a.m. and told her about the robbery that had just happened.              It

was Officer Watkins who created a conflict in the time frame by

testifying that he was dispatched at 8:46 a.m.            Once again, this

has little or nothing to do with the reliability of Alston’s

identification of Defendant as one of the assailants.

     {¶ 19} Finally, even assuming that Alston did misidentify a

person from some photographs as the third assailant, whom Alston

consistently claimed he had never seen before and did not know,
                                                                        8

Alston nevertheless did not misidentify Defendant or D’AK, persons

he knew and recognized.

      {¶ 20} Defendant also points to other inconsistencies in

Alston’s testimony and conflicts between Alston’s testimony and

the testimony of other witnesses.         Those matters are peripheral

to the critical issue: whether Alston was beaten and robbed by

Defendant.       The jury resolved the issue of Alston’s credibility

in his favor.       We find no basis to disturb that finding.

      {¶ 21} The credibility of the witnesses and the weight to be

given to their testimony were matters for the trier of facts, the

jury, to decide.      DeHass.   The jury did not lose its way simply

because it chose to believe the State’s witnesses and theory of

the case, rather than Defendant’s, which it had a right to do.

Id.

      {¶ 22} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or    that   a   manifest   miscarriage   of   justice    has   occurred.

Defendant’s conviction for aggravated robbery is not against the

manifest weight of the evidence.

      {¶ 23} Defendant’s first assignment of error is overruled.

      SECOND ASSIGNMENT OF ERROR

      {¶ 24} “THE     DEFENDANT-APPELLANT      RECEIVED     INEFFECTIVE
                                                                              9

ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT

TO COUNSEL.”

     {¶ 25} Counsel's performance will not be deemed ineffective

unless and until counsel's performance is proved to have fallen

below an objective standard of reasonable representation and, in

addition,       prejudice     arose     from       counsel's     performance.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674.     To show that a defendant has been prejudiced by

counsel’s deficient performance, the defendant must affirmatively

demonstrate to a reasonable probability that were it not for

counsel’s errors, the result of the trial would have been different.

 Id., State v. Bradley (1989), 42 Ohio St.3d 136.

     {¶ 26} Detective Ritchie testified on cross-examination that

 when Officer Watkins showed Alston photographs in an attempt to

identify his third assailant, Alston chose an individual who turned

out not to be the correct person.           Defendant claims that his trial

counsel   performed     deficiently         by   failing   to   introduce   the

photospread that was the subject of Alston’s misidentification

of the third assailant, and further by failing to cross-examine

Alston    and    Officer    Watkins     about      that    misidentification.

Defendant argues that the key piece of evidence to attack Alston’s

identification     of   him   was     the    photospread     from   which   the

misidentification of the third assailant was made, because that
                                                                          10

exhibit   undermines       the    reliability    of   the    State’s    only

identification witness.          That evidence was never introduced at

trial, however.

     {¶ 27} The jury was made aware of the fact of Alston’s

misidentification of the third assailant.             Any relevance the

evidence concerning Alston’s misidentification might have in terms

of negatively impacting the reliability of Alston’s identification

of Defendant as one of his assailants would be marginal at best,

given that Defendant consistently maintained that he had never

seen the third assailant before and did not know him, but that

he had seen Defendant several times before in the neighborhood

and knew him as “B.”     Defendant’s contention about what might have

happened had defense counsel introduced the photographs associated

with Alston’s misidentification of the third assailant is too

speculative to demonstrate that Defendant was prejudiced by

counsel’s failure.

     {¶ 28} Defendant      has    failed   to    demonstrate       deficient

performance by defense counsel, much less that but for counsel’s

failure   to   introduce    the    photographs   connected    to    Alston’s

misidentification of the third suspect, Defendant would have been

found not guilty.       No prejudice, as defined by Strickland, has

been demonstrated.

     {¶ 29} Defendant’s second assignment of error is overruled.
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     THIRD ASSIGNMENT OF ERROR

     {¶ 30} “THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING

PORTIONS   OF   THE   TRANSCRIPT    TO    BE    READ   TO    THE    JURY   DURING

DELIBERATIONS THEREBY DENYING APPELLANT’S SIXTH AMENDMENT RIGHT

TO A FAIR TRIAL.”

     {¶ 31} During deliberations the jury sent a note to the trial

court asking to have read to them Alston’s testimony from the start

of his direct examination to the point where he testifies that

D’AK said: “Kill that n---a.”             The jury also requested all

cross-examination of Alston concerning the gun.               Over Defendant’s

objection, the trial court had the court reporter read to the jury

the requested portions of Alston’s testimony.

     {¶ 32} Defendant   argues     that   the    trial      court    abused   its

discretion      because, by reading only a portion of Alston’s

testimony to the jury, the trial court unfairly emphasized that

portion of Alston’s testimony, to the exclusion of other portions

of Alston’s testimony that Defendant claims were inconsistent and

contradictory.

     {¶ 33} A trial court possesses broad discretion in deciding

whether to permit a jury to re-hear all or part of a witness’s

testimony during its deliberations.            State v. Frazier, Clark App.

No. 2008CA0118, 2010-Ohio-1507 at ¶53, citing State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, at ¶123.                 Absent an abuse of
                                                                 12

discretion, a reviewing court may not reverse the trial court’s

decision.    Id.

     {¶ 34} “Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482

N.E.2d 1248, 1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or

arbitrary.

     {¶ 35} “A decision is unreasonable if there is no sound

reasoning process that would support that decision.      It is not

enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive,

perhaps in view of countervailing reasoning processes that would

support a contrary result.”   AAAA Enterprises, Inc. v. River Place

Community Redevelopment (1990), 50 Ohio St.3d 157, 161.

     {¶ 36} Defendant argues that the testimony read to the jury

unfairly prejudiced him because it clearly implies that Alston

knew Defendant’s name, when other portions of Alston’s testimony

that were not read to the jury clearly demonstrate that Alston

did not know Defendant’s name until after he had identified

Defendant from photographs and Detective Ritchie told Alston

Defendant’s name.
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     {¶ 37} The    critical   issue     was    whether       Alston   recognized

Defendant as one of the perpetrators of this crime and could

identify him as such, not whether he knew Defendant’s real or street

name.   Furthermore, the request to have this portion of Alston’s

testimony re-read was made by the jury, which determined that it

would be helpful to their deliberations.             This is not a case where

the trial court on its own emphasized or pointed the jury to anything

particular in Alston’s testimony.

     {¶ 38} The jury’s request was detailed, seeking very specific

parts of Alston’s testimony, and the trial court strictly limited

its response to what was requested by the jury.                 The trial court

acted well within its discretion in allowing                   the portions of

Alston’s testimony requested by the jury to be re-read to the jury.

 No abuse of discretion is demonstrated.

     {¶ 39} Defendant’s third assignment of error is overruled.

     FOURTH ASSIGNMENT OF ERROR

     {¶ 40} “THE    TRIAL     COURT     ERRED       IN   DISAPPROVING     SHOCK

INCARCERATION, INTENSIVE PROGRAM PRISON AND TRANSITIONAL CONTROL

ARGUMENT.”

     {¶ 41} Defendant    argues       that    the    trial    court   erred   in

disapproving shock incarceration, intensive program prison, and

transitional control, and that the court further erred in not

putting its reasons for the disapproval on the record.                See: State
                                                                   14

v. Howard, Montgomery App. No. 23815, 2010-Ohio-5283.

     {¶ 42} At the sentencing hearing and again in its judgment entry

of conviction, the trial court did not “disapprove” Defendant for

shock incarceration, intensive program prison and transitional

control, and then fail to put its reasons for the disapproval on

the record.   Rather, the court concluded that Defendant was “not

eligible” for shock incarceration, intensive program prison, or

transitional control.

     {¶ 43} R.C. 5120.032(B)(2)(a) provides that a prisoner who is

serving a prison term for a felony of the first degree is not

eligible to participate in an intensive program prison.    Defendant

was convicted and sentenced for aggravated robbery, a felony of

the first degree.    R.C. 2911.01(C).   Therefore, as the trial court

correctly found, Defendant is not eligible for intensive program

prison.

     {¶ 44} R.C. 5120.031(A)(4) indicates that a person is not

eligible for shock incarceration if he is ineligible to participate

in an intensive program prison under R.C. 5120.032.        As stated

above, Defendant is not eligible to participate in an intensive

program prison.     Therefore, as the trial court correctly found,

Defendant is not eligible for shock incarceration.

     {¶ 45} R.C. 2967.26(A)(1)(b) provides that no prisoner who is

serving a mandatory prison term is eligible for the transitional
                                                                 15

control program until after expiration of the mandatory term.

Defendant was sentenced to a mandatory three year prison term on

the firearm specification attached to the aggravated robbery

charge.    Accordingly, Defendant is not eligible for transitional

control until after his completion of the mandatory three year

term, and therefore at the time of sentencing Defendant was, as

the trial court correctly found, ineligible for transitional

control.

     {¶ 46} In State v. Howard, supra, we held that the trial court

erred by disapproving transitional control in the judgment entry

of conviction because the court is able to approve or disapprove

transitional control only after a person has been incarcerated

and the adult parole authority sends the required three weeks’

notice to the trial court indicating its intention to grant

transitional control.    Id., at ¶2, 40-44.   In the present case,

the court instead held that Defendant is not eligible, which is

correct.    After Defendant completes his mandatory three year

prison term on the firearm specification, and if and when the trial

court receives notice that the adult parole authority intends to

grant Defendant transitional control, the trial court will have

an opportunity at that appropriate time to approve or disapprove

transitional control.

     {¶ 47} Defendant’s fourth assignment of error is overruled.
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The judgment of the trial court will be affirmed.



HALL, J. And DONOFRIO, J., concur.


(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)


Copies mailed to:

Andrew T. French, Esq.
Christopher W. Thompson, Esq.
Hon. Dennis J. Langer
