[Cite as State v. Proctor, 2019-Ohio-3259.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. W. Scott Gwin, P.J
         Plaintiff-Appellee                     Hon. William B. Hoffman, J.
                                                Hon. Patricia A. Delaney, J.
 -vs-
                                                Case No. 2018CA00160
 KEVIN R. PROCTOR

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Stark County Court of
                                                Common Pleas, Case No. 2018CR1152B


 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        August 12, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 JOHN D. FERRERO                                DONAVAN R. HILL
 Prosecuting Attorney                           116 Cleveland Ave. – Ste. 808
 Stark County, Ohio                             Canton, Ohio 44702

 KRISTINE W. BEARD
 Assistant Prosecuting Attorney
 Appellate Section
 110 Central Plaza, South – Ste. 510
 Canton, Ohio 44702-1413
Stark County, Case No. 2018CA00160                                                    2

Hoffman, J.
       {¶1}   Appellant Kevin R. Proctor appeals the judgment entered by the Stark

County Common Pleas Court convicting him of robbery (R.C. 2911.02(A)(2)) and assault

(R.C. 2903.13(A)) and sentencing him to an aggregate term of incarceration of six years.

Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Diana Johnson met Sean Jefferson through an online dating service in early

May, 2018. They frequently talked and hung out together thereafter. Diana attended a

party at her cousin’s duplex on May 23, 2018. She called Sean to ask him to come to the

party in the 3100 block of Kalahari St. in Canton, Ohio. She asked him to bring her a

Black and Mild cigarette and to park behind the duplex, near a dumpster.

       {¶3}   Sean arrived between 6:30-7:00 p.m., and parked where instructed. Diana

was outside waiting for him. He gave her the Black and Mild, which she smoked outside.

She told Sean smoking was not permitted at the party. While standing outside, Sean saw

a man approaching from the left, and two men approaching from the other direction. Sean

had a bad feeling about the situation.

       {¶4}   According to Diana, two men, Brandon Malik Fields and Appellant, were at

the party and approached her and Sean outside. Appellant asked Sean for a cigarette.

Sean told Appellant he didn’t smoke. Appellant then asked for a “buck.” Tr. 132. Sean

said he didn’t have a buck, but he had hundreds, referring to money. Appellant and Sean

started to walk to Sean’s car, when Appellant threw Sean to the ground. Fields kicked

Sean several times, and Appellant punched Sean. When Diana ran to kick Appellant,

Fields picked her up and slammed her to the ground. She got up and ran to her mother’s

house. Before she left, she saw keys in Appellant’s hand.
Stark County, Case No. 2018CA00160                                                      3


       {¶5}   According to Sean’s recollection of the evening, one of the men who

approached him outside asked for money. Sean replied he didn’t have any money. The

man told Sean he needed a “band,” or one thousand dollars. Tr. 175. Sean walked to

his car to get a crow bar for protection. As he was walking, he was thrown to the ground

and kicked by two men – one wearing boots, and one wearing gym shoes. The men

kicked Sean multiple times. He did not recognize any of the men. He lost consciousness,

and woke up as the men were attempting to use the fingers of his left hand to unlock his

cell phone. While lying on the ground, he saw Diana walk away. After the men left in his

car, Sean got up and walked toward the road. A girl stopped to help him. He next woke

up in the back of an ambulance. The men who assaulted him took his wallet, cell phone,

keys, and rental vehicle. Sean was not able to identify Appellant nor Fields.

       {¶6}   Detective Joseph Pileggi of the Canton Police Department was assigned to

the case. In speaking with Sean, he learned Sean believed Diana set him up for the

robbery. Detective Pileggi’s attempts to contact Diana were unsuccessful. Det. Pileggi

issued a warrant for Diana’s arrest for complicity to commit robbery, and she was arrested

by a U.S. Marshall in June of 2018.

       {¶7}   Diana identified Appellant to Det. Pileggi by name. She told the detective

the other man went by the name “Mozzy Mac” on Facebook, and his first name was

Brandon. Det. Pileggi circulated a photograph of the man Diana knew as Mozzy around

the police department, and a patrol officer identified the man as Fields. Diana identified

photos of both men.

       {¶8}   Sean’s rental vehicle was recovered two weeks later. Two juveniles were

arrested in conjunction with the stolen vehicle.
Stark County, Case No. 2018CA00160                                                         4


       {¶9}   Appellant was indicted by the Stark County Grand Jury with complicity with

Brandon Fields and Diana Johnson in the commission of robbery and assault. Appellant

and Fields were tried jointly by jury trial in the Stark County Common Pleas Court.

Appellant was convicted as charged and sentenced to six years incarceration for robbery

and thirty days incarceration for assault, to be served concurrently.

       {¶10} It is from the October 5, 2018 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:



              WHETHER THE DEFENDANT’S CONVICTIONS FOR ROBBERY

       AND ASSAULT WERE AGAINST THE MANIFEST WEIGHT AND

       SUFFICIENCY OF THE EVIDENCE.



       {¶11} Appellant argues the judgment of conviction is against the manifest weight

and sufficiency of the evidence because Diana Johnson’s testimony was inconsistent and

inaccurate, and she testified solely to lessen her own culpability.

       {¶12} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
Stark County, Case No. 2018CA00160                                                            5


       {¶13} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶14} Appellant was convicted of robbery in violation of R.C. 2911.02(A)(2), which

provides:



              (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:

              (2) Inflict, attempt to inflict, or threaten to inflict physical harm on

       another[.]



       {¶15} He was also convicted of assault in violation of R.C. 2903.13(A), which

states, “No person shall knowingly cause or attempt to cause physical harm to another or

to another's unborn.”

       {¶16} Appellant argues the only person who identified him as one of the men

involved in the theft and assault on Sean Jefferson was Diana Johnson, and her testimony

was inconsistent, inaccurate, and self-serving, and therefore not credible. He argues the

simple fact none of her story came to light until after she was charged, arrested, and

sitting in jail is indicative of her desire to “create a story about this unfortunate incident.”
Stark County, Case No. 2018CA00160                                                           6


Brief of Appellant, p. 10. He argues based on the lack of credibility of her identification

testimony, the judgment is against the manifest weight and sufficiency of the evidence.

       {¶17} Diana identified Appellant and Fields as the two men involved in the assault

and robbery. She had previously identified the men to police, naming Appellant and

stating she knew the second man by the name “Mozzy.” After police identified “Mozzy”

as Fields, she was able to identify both men from photographs presented to her by

Detective Pileggi. Her identification testimony was sufficient, if believed by the jury, to

support the convictions of robbery and assault.

       {¶18} Further, we find the jury did not lose its way in finding her testimony credible

as to the identification of Appellant as one of the men involved in the assault and robbery

of Sean Jefferson.     The jury was made aware of the inconsistencies between her

testimony and Sean’s testimony, and further was aware she previously told police a third

man was present, who tried to break up the assault. The jury was aware she was charged

as an accomplice in the incident. Counsel for Appellant and Fields criticized her actions

in running from the scene, failing to call the police, and refusing to talk to police until she

was arrested for the crime. In spite of the concerns placed before the jury concerning her

credibility, the jury chose to believe her identification testimony. Because the trier of fact

is in a better position than this Court to observe the witnesses' demeanor and weigh their

credibility, the weight of the evidence and the credibility of the witnesses are primarily for

the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212,

paragraph one of the syllabus (1967).
Stark County, Case No. 2018CA00160                                             7


      {¶19} The assignment of error is overruled.

      {¶20} The judgment of the Stark County Common Pleas Court is affirmed.




By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
