[Cite as State v. Ayers, 2020-Ohio-2943.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 108741
                 v.                               :

DEONTE L. AYERS,                                  :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 14, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-630601-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Michael Barth, Assistant Prosecuting
                 Attorney, for appellee.

                 Jerome M. Emoff, for appellant.


RAYMOND C. HEADEN, J.:

                   Defendant-appellant Deonte L. Ayers (“Ayers”) appeals from his

conviction for aggravated robbery. For the reasons that follow, we affirm.
Procedural and Substantive History

               On July 26, 2018, the Cuyahoga County Grand Jury indicted Ayers on

one count of aggravated robbery in violation of R.C. 2911.01(A)(1) with one- and

three-year firearm specifications, and one count of having weapons while under

disability in violation of R.C. 2923.13(A)(3). Ayers pleaded not guilty to the charges.

               On October 19, 2018, Ayers filed a motion to suppress. The motion

argued that the search of the residence, the seizure of the automobile, and his own

arrest were done without warrants and, therefore, violated his constitutional rights.

On April 25, 2019, the court held a hearing on the motion to suppress.

               The state called North Olmsted Police Officer Hasim Welch-Bey

(“Officer Welch-Bey”), who testified that on July 4, 2018, he responded to a call of a

robbery that had been committed with a firearm in the area of the Jamestown

Apartments in North Olmsted, Ohio. Officer Welch-Bey met with the victim, Ahmir

Hawthorne (“Hawthorne”), who lived in the Jamestown Apartments.

               Hawthorne told Officer Welch-Bey that he was robbed at gunpoint

inside of a vehicle. Hawthorne described the suspect as a black male, approximately

six-feet tall, with tattoos on both of his arms, wearing jeans and a black shirt.

Hawthorne also told Officer Welch-Bey that he got into the suspect’s tan four-door

vehicle to sell the suspect drugs, and that is where the robbery occurred. Initially,

Hawthorne did not explain why he got into the suspect’s vehicle, but he ultimately

admitted to Officer Welch-Bey that he was engaged in a drug transaction. According

to Hawthorne, the suspect took $30 worth of marijuana, a Star Wars wallet
containing his driver’s license and debit card, and a Nike backpack containing a

Crown Royal bag containing between $700 and $1,000 in cash.

              Officer Welch-Bey obtained surveillance footage from a nearby

apartment building showing a tan Nissan Altima pull into the parking lot. The video

also showed a man exit the vehicle, open the hood, and then get back into the vehicle.

Officer Welch-Bey conducted a partial license plate search based on the surveillance

footage and ultimately identified an address to which the vehicle was registered,

10803 Manor Drive in Cleveland, Ohio. He then provided this information to

Cleveland police, who went to the address on July 6, 2018, and located the vehicle

parked on the street in front of the address. Police confirmed to Officer Welch-Bey

that the vehicle had the same damage to the front bumper that he had observed on

the surveillance video.

              Later that day, Officer Welch-Bey, another North Olmsted police

officer, and a detective responded to the listed address. Officer Welch-Bey knocked

on the front door of the residence and spoke with a man who identified himself as

the husband of the vehicle’s listed owner. Officer Welch-Bey told the man that a

younger male had been driving the vehicle when it was used in a hit and run

accident, and the man responded that would have been his daughter’s boyfriend,

Ayers.1 The man informed Officer Welch-Bey that Ayers was upstairs and offered to




      1  Officer Welch-Bey explained that he told the man that the vehicle had been
involved in a hit and run because he felt that the man was not being very forthcoming
with information, although the vehicle had not been involved in such an accident.
get him. Officer Welch-Bey asked if he and the other officers could accompany the

man upstairs, and they were then invited inside.

              Ayers and his girlfriend, Patrice Warren (“Warren”), were sleeping in

an upstairs bedroom. Officer Welch-Bey testified that when Ayers woke up and got

out of bed, he saw his face and recognized him from the surveillance footage. He

also identified Ayers at the suppression hearing.

              Officer Welch-Bey arrested Ayers, informed him of his Miranda

rights, and placed him in a patrol car. He told Ayers that he believed a firearm was

involved, and Ayers stated that he did not own any firearms. Officers then spoke to

Warren, who provided written consent to search the home. Upon searching the

home, no firearm was recovered. Officers then asked Ayers and Warren for keys to

the Altima, but neither was able to produce keys for the vehicle. Officer Welch-Bey

had the vehicle towed to the North Olmsted Police Department to wait for a search

warrant for the vehicle. He then transported Ayers to the police department as well.

Subsequently, another officer administered a photo lineup to Hawthorne, who

identified Ayers as the individual who robbed him on July 4, 2018.

              The state also called North Olmsted Detective Michael Gasdick

(“Detective Gasdick”), who testified that he responded to the Manor Drive address

and assisted in the search of the residence. Detective Gasdick testified that he did

not recover a firearm from the residence, and the only thing of note from that search

was a large amount of cash. Officers did not count or collect the cash. Detective

Gasdick also testified that on July 9, 2018, a search warrant was obtained and
executed for the Altima, and that this search resulted in the seizure of a Nike

backpack, a Star Wars wallet containing a Speedway card, and a rust-colored six-

inch knife. On May 1, 2019, the court denied the motion to suppress.

              On May 20, 2019, the case proceeded to a jury trial. The state called

Hawthorne, who testified that around 11:30 a.m. on July 4, 2018, he was standing

outside of his apartment complex smoking when he was approached by a car driven

by an older black man wearing black pants and a black shirt. Hawthorne testified

that the vehicle stopped and he got into the back of the car because he was interested

in buying a video game from the man and selling marijuana to the man. At trial,

Hawthorne identified Ayers as the man who approached him on July 4, 2018.

              Hawthorne testified that Ayers got out of his car to check something

under the hood, and then got into the front passenger seat. Hawthorne testified that

Ayers pulled a gun on him, and he let Ayers take his Nike backpack. When the

prosecutor showed him photos of items seized from the Altima, Hawthorne

identified his backpack and wallet. Hawthorne testified that he did not remember

what exactly Ayers said to him when he pulled out the gun, but he understood that

he was getting robbed. Hawthorne described the gun as black and “kind of rusted.”

Hawthorne testified that after he gave Ayers his bag, Ayers told him to get out of the

car, so he got out of the car and called the police. Ayers drove away.

              The state also called North Olmsted Detective William Saringer

(“Detective Saringer”), who testified that he obtained a search warrant for the Altima

and interviewed Ayers in connection with this case. He testified that the search of
the vehicle revealed a Star Wars wallet in the front passenger door, a knife under the

driver’s seat, and a Nike backpack in the vehicle’s trunk.        Detective Saringer

described the knife as approximately six inches, with a rust-colored blade and black

handle.

              Detective Saringer also described how he prepared the photo lineup

that another officer administered to Hawthorne, and testified that Hawthorne

identified Ayers as the individual who robbed him. At trial, Detective Saringer

identified Ayers. He also testified that he interviewed Ayers, who told him that on

July 4, 2018, he had been visiting a female friend who lived in the Jamestown

Apartment complex. Detective Saringer testified that Ayers told him that he had

been interested in buying marijuana and he met someone he referred to as “A.”

During the interview, Ayers told the detective that A. had robbed him with a gun.

When Detective Saringer asked Ayers about the items recovered in the Altima, Ayers

was unable to provide an explanation as to how they ended up in the vehicle. Finally,

Detective Saringer testified that no firearm was found in the vehicle or otherwise

recovered during the investigation of this case.

              At the end of Detective Saringer’s testimony, the court permitted

jurors to submit additional questions for him. One juror question was “is having the

knife — is it in violation of his parole?” Both the prosecutor and defense counsel

objected to the question, and the court sustained the objections, noting that the

question assumed something not in evidence. As a result, this question was not

asked to Detective Saringer.
              The state also called Officer Welch-Bey, who provided testimony

similar to his aforementioned testimony at the suppression hearing. Officer Welch-

Bey testified that he responded to a report of an armed robbery, and described

Hawthorne as “shaken up” and “emotional.” He also described how he spoke with

the building manager of a nearby apartment building and obtained surveillance

footage showing the area where the robbery was alleged to have taken place.

              The state played the surveillance video for the jury. The video showed

a tan Nissan Altima pull into the driveway of the apartment building and park, and

then a man got out of the vehicle, opened its hood, and get back into the vehicle

before driving away. Officer Welch-Bey identified Ayers in the video. He also

testified that when he reviewed the surveillance video, he observed that there was

also an occupant in the backseat of the vehicle. Officer Welch-Bey also testified that

Ayers initially denied robbing anyone, and then said that he was actually the one

who had been robbed.

              The state called Detective Gasdick, who provided testimony similar to

his aforementioned testimony at the suppression hearing. The state also called

North Olmsted Police Officer Ryan Dimatteo (“Officer Dimatteo”), who testified that

he administered a photo lineup to Hawthorne, who was able to positively identify

Ayers as the individual who robbed him on July 4, 2018.

              At the close of the state’s case, Ayers made a Crim.R. 29 motion for

acquittal. The court denied this motion. Ayers called Warren as a witness. Warren

testified that she had two children with Ayers and she previously lived in the two-
family home at 10801 Manor Avenue. Warren testified that on July 6, 2018, police

came to this address because her car, the Nissan Altima, had been used in a hit and

run. Warren explained that Ayers, along with numerous other family members, had

permission to use the Altima. Warren testified that Ayers did not have a gun in the

home, and that she gave police permission to search her home. Warren testified that

on July 4, 2018, she was in the hospital having her appendix removed, and Ayers

had the Altima that morning but she did not know where was going. Ayers picked

up Warren from the hospital around 5 p.m. on July 4 and they went straight home.

According to Warren, Ayers did not say anything to her about being robbed.

              Ayers renewed his Crim.R. 29 motion, and the court denied this

motion. On May 22, 2019, the jury returned a guilty verdict on the aggravated

robbery charge, and not guilty verdicts as to the firearm specifications and the

having weapons while under disability charge.

              On May 30, 2019, the court held a sentencing hearing. The court

heard from the prosecutor, defense counsel, a detective who spoke on behalf of Ayers

and asked for a minimal prison sentence, and Ayers. The court sentenced Ayers to

four years in prison and imposed court costs. Ayers appeals, presenting four

assignments of error for our review.

Law and Analysis

I. Sufficiency and Manifest Weight of the Evidence

              In his first assignment of error, Ayers argues that his conviction is

against the manifest weight of the evidence. In his second assignment of error, Ayers
argues that his conviction was not supported by sufficient evidence. In support of

both assignments of error, he points to the alleged inconsistency in the jury’s verdict.

We will address these assignments of error together.

               A sufficiency challenge requires a court to determine whether the

state has met its burden of production at trial and to consider not the credibility of

the evidence but whether, if credible, the evidence presented would support a

conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

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. State v. Jenks, 61 Ohio St.3d 259,

273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

               Unlike a challenge to the sufficiency of evidence, a manifest weight

challenge attacks the quality of the evidence and questions whether the state met its

burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-

Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-

3598, ¶ 13. When reviewing a manifest weight challenge, a court reviews the entire

record, weighing all evidence and reasonable inferences and considering the

credibility of the witnesses, to determine whether the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed. Thompkins at 387.
               Ayers was found guilty of aggravated robbery, in violation of

R.C. 2911.01(A)(1), which provides that:

      [n]o 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 * * * 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.

The indictment alleged that the deadly weapon was “to wit[, a] firearm.” The

entirety of Ayers’s arguments for both his sufficiency and manifest weight claims

rests on an alleged inconsistency in the jury verdicts. Specifically, Ayers asserts that

the jury determined that no firearm was involved in the incident, as evidenced by its

not guilty verdicts on the firearm specifications and the having weapons while under

disability offense. Ayers further asserts that the jury essentially found that an

aggravated robbery had been committed, but not with a firearm as alleged in the

indictment and by the victim in his trial testimony. We disagree.

               As an initial matter, the alleged inconsistency has no bearing on our

analysis with respect to sufficiency of the evidence. At trial, Hawthorne testified that

Ayers robbed him at gunpoint, taking his backpack and wallet. This evidence would

be sufficient to sustain a conviction for aggravated robbery on its own. Here, though,

the victim’s testimony was corroborated by video surveillance footage placing Ayers

near the scene of the crime at the approximate time of the incident. It was also

corroborated by the physical evidence — Hawthorne’s backpack and wallet — that

was recovered in the vehicle Ayers used on the day of the incident. Viewing this

evidence in the light most favorable to the state, we conclude that any rational trier
of fact could have found the essential elements of aggravated robbery proven beyond

a reasonable doubt. Finding sufficient evidence to support his conviction, we

overrule Ayers’s second assignment of error.

              With respect to Ayers’s argument regarding the allegedly inconsistent

jury verdicts, in general, consistency in a jury verdict is not necessary. Dunn v.

United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Ohio courts

have consistently held that the counts of an indictment are not interdependent, and

an impermissible inconsistency in a verdict only arises out of inconsistent responses

to the same count, not inconsistent responses to different counts. State v. Houser,

8th Dist. Cuyahoga No. 69639, 1996 Ohio App. LEXIS 2285, 22 (May 30, 1996),

citing State v. Brown, 12 Ohio St.3d 147, 147, 465 N.E.2d 889 (1984). “[J]uries can

reach inconsistent verdicts for any number of reasons, including mistake,

compromise, or leniency,” and such an inconsistency does not justify overturning a

guilty verdict. State v. Taylor, 8th Dist. Cuyahoga No. 89629, 2008-Ohio-1626,

¶ 10, citing United States v. Powell, 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461

(1984).

              Beyond this general rule, Ohio courts have specifically held that a not

guilty verdict on firearm specifications is not inconsistent with a guilty verdict for

aggravated robbery. State v. Williams, 8th Dist. Cuyahoga No. 95796, 2011-Ohio-

5483, ¶ 41, citing State v. Vaughn Hardware, 8th Dist. Cuyahoga No. 93639, 2010-

Ohio-4346, ¶ 17, citing State v. Fair, 8th Dist. Cuyahoga No. 89653, 2008-Ohio-
930, ¶ 24. In those cases, as in the instant case, the crime of aggravated robbery is

not dependent on a firearm specification, or any other offense.

               In challenging the jury’s verdicts, Ayers emphasizes a comment the

court made at sentencing. In response to defense counsel’s statement that the

verdict was inconsistent, the court remarked that the jury could have concluded that

the deadly weapon Ayers used was the knife recovered in the Altima and not a

firearm. On appeal, Ayers characterizes the court’s comments as inappropriate fact-

finding. The state, in turn, argues that the jury clearly considered Hawthorne’s

testimony that he was robbed at gunpoint in the context of the evidence that a knife,

and not a firearm, was recovered from the vehicle. Neither argument is relevant to

our analysis here.

               “‘An appellate court is not permitted to speculate about the reason for

the inconsistency when it determines the validity of a verdict.’” State v. Morris, 8th

Dist. Cuyahoga No. 94923, 2011-Ohio-824, ¶ 12, quoting State v. Trewartha, 165

Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218, ¶ 16 (10th Dist.), discretionary

appeal not allowed, State v. Trewartha, 108 Ohio St.3d 1475, 2006-Ohio-665, 842

N.E.2d 1054. As discussed above, because the aggravated robbery is a separate

offense and not dependent on the firearm specifications or the having weapons

under disability count, consistency is not required. This is true “irrespective of [the

conviction’s] rational incompatibility with the acquittal.” Morris at id., citing State

v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th Dist.1985), and State v.
Adams, 53 Ohio St.2d 223, 228, 374 N.E.2d 137 (1978). Therefore, speculation as

to the jury’s rational, if any, is outside the scope of our review.

               Further, the jury can believe all, part, or none of the testimony of each

witness who appears at trial. State v. Mackey, 8th Dist. Cuyahoga No. 75300, 1999

Ohio App. LEXIS 5902, 22 (Dec. 9, 1999), citing State v. Nichols, 85 Ohio App.3d

65, 76, 619 N.E.2d 80 (4th Dist.1983). Ayers argues that based on the verdicts, the

jury ultimately concluded that Hawthorne’s testimony lacked credibility.            We

disagree.

               As discussed above, the jury could have found Ayers guilty based

solely on Hawthorne’s testimony. In addition, the main way in which Hawthorne

lacked credibility, according to Ayers, is based on his initial reluctance to tell the

police that he was selling marijuana to Ayers. We do not find this reluctance so

significant as to undermine Hawthorne’s credibility. First, there are numerous

reasons that an individual would be reluctant to admit criminal behavior to a law

enforcement officer. Second, although the initial reason for the encounter is helpful

in establishing the context in which the aggravated robbery occurred, the reason that

Hawthorne got into the car with Ayers does not address any of the elements of the

crime of aggravated robbery. Finally, although Hawthorne was not immediately

forthcoming regarding the nature of his initial interaction with Ayers, he admitted

this to police upon further questioning. The majority of Hawthorne’s account of the

events was not changed by his initial omission. This is not the exceptional case in

which the jury lost its way and created a manifest miscarriage of justice. Ayers’s
conviction for aggravated robbery was not against the manifest weight of the

evidence. Therefore, his first assignment of error is overruled.

II. Juror Misconduct

               In his third assignment of error, Ayers argues that he was denied his

right to a fair and impartial trial because of a question submitted to the court by a

juror during the trial. According to Ayers, the unasked juror question shows that

the jury was impartial, in violation of his constitutional rights. Ayers argues that the

court should have conducted an inquiry to determine how exactly the juror acquired

information about Ayers’s parole status, how that information impacted the juror’s

thinking, and whether the information had been communicated to the other jurors.

               At trial, the prosecutor and defense counsel both objected to the

question about parole. The court sustained both objections and declined to ask the

question to the witness. At no point during trial did Ayers request that the court

either replace the juror or conduct an inquiry of the juror. Further, “there is no per

se rule requiring an inquiry in every instance of alleged [juror] misconduct.” State

v. Sanders, 92 Ohio St.3d 245, 253, 2001-Ohio-189, 750 N.E.2d 90, quoting United

States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir.1991). Where the defense did not

request a remedy at trial and expressed no dissatisfaction with the trial court’s

handling of alleged juror misconduct, we review for plain error. State v. McKnight,

107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 185.

               Pursuant to Crim.R. 52(B), notice of plain error is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 91, 372 N.E.2d 804 (1978).

Generally, a court will not reverse a judgment based upon juror misconduct unless

the complaining party shows they were prejudiced by the misconduct. State v.

Mack, 8th Dist. Cuyahoga No. 93091, 2010-Ohio-1420, ¶ 16, citing State v. Keith, 79

Ohio St.3d 514, 526, 684 N.E.2d 47 (1997).

               Ayers argues that the prejudicial nature of the information about his

parole status cannot be disputed. Specifically, Ayers asserts that the jurors could

have determined that he must have done something wrong in this case because he

had committed a crime in the past. We disagree. Ayers supports his argument by

asserting that the juror who asked the question uncovered extraneous information

about him and was therefore improperly influenced by something not in evidence.

It is perhaps theoretically possible that the juror did inappropriate outside research

before formulating their question. It appears more likely, though, that the juror

made an inference as to Ayers’s parole status based on the fact that he was on trial

for having weapons while under disability. At the outset of trial, the jury was

informed of the elements of the charges Ayers faced. One of the elements of having

weapons while under disability as charged in this case is that the defendant is under

indictment for or has been convicted of a felony drug offense. Although the parties

agree that Ayers’s parole status was not in evidence, we find no plain error in the

court’s decision not to conduct an inquiry here. Therefore, Ayers’s third assignment

of error is overruled.
III. Motion to Suppress

              In his fourth assignment of error, Ayers argues that the trial court

erred in determining that he did not have standing to contest the seizure of the

Altima. In support of his argument challenging the denial of a pretrial motion to

suppress, Ayers points to testimony from trial that he had permission to use the

vehicle.

              The Fourth Amendment to the United States Constitution protects

the people’s right to privacy in their person, places, and things against government

intrusion in the form of unreasonable searches and seizures. One is afforded this

protection “only to the extent that they have a reasonable expectation of privacy in

the property at issue.” State v. Polk, 150 Ohio St.3d 29, 2017-Ohio-2735, 78 N.E.3d

834, ¶ 27, citing Athens v. Wolf, 38 Ohio St.2d 237, 240, 313 N.E.2d 405 (1974).

Because Fourth Amendment rights are personal and cannot be asserted vicariously,

a defendant bears the burden of proving that the seizure was illegal and that they

had a legitimate expectation of privacy in the property. State v. Lumbus, 2016-Ohio-

380, 59 N.E.3d 580, ¶ 72 (8th Dist.), citing Rakas v. Illinois, 439 U.S. 128, 133-134,

99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and State v. Dennis, 79 Ohio St.3d 421, 426,

683 N.E.2d 1096 (1997).

              Ayers argues that the testimony at the suppression hearing was

sufficient to establish that he had a reasonable expectation of privacy in the Altima.

The specific testimony he points to from the suppression hearing is Officer Welch-

Bey’s testimony that, upon being told that the Altima was involved in an accident on
July 4, and was driven by a young male, Warren’s father said that Ayers must have

been driving the vehicle. This is testimony that Ayers had been driving the vehicle,

not that he owned the vehicle or even that he had been driving the vehicle with

permission. Further, this statement was not made by the owner of the vehicle; the

vehicle’s owner did not testify at the suppression hearing or at trial, and there is

nothing in the record indicating that anyone involved in this case ever

communicated with the owner. Further, when officers asked for keys to the Altima,

no one in the home, including Ayers, was able to produce the keys. Considering the

evidence presented at the suppression hearing, we conclude that the trial court

properly denied the motion to suppress. Ayers’s fourth assignment of error is

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 out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending appeal 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.



RAYMOND C. HEADEN, JUDGE

MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
