[Cite as State v. Bybee, 2017-Ohio-8869.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105165




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                       DEJUAN BYBEE
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-602798-A

             BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.

             RELEASED AND JOURNALIZED:                 December 7, 2017
ATTORNEY FOR APPELLANT

Brian McGraw
55 Public Square, Suite 2100
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Carl J. Mazzone
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Plaintiff-appellant, DeJuan Bybee (“Bybee”), appeals from his convictions

for aggravated robbery, robbery, and other offenses.     He assigns the following errors for

our review:

       I. Bybee’s convictions were not supported by sufficient evidence.

       II.     Bybee’s convictions were against the manifest weight of the evidence.

       {¶2} Having reviewed the record and pertinent law, we affirm the decision of the

trial court.    The apposite facts follow.

       {¶3} Bybee and codefendant, Gary Hall (“Hall”), were indicted in a 16-count

indictment in connection with the armed robberies of two men outside of a bar in

Cleveland Heights.        As is relevant herein, Counts 1 and 2 charged Bybee with

aggravated robbery, with one-year and three-year firearm specifications.          Counts 3

through 6 charged him with robbery, with one-year and three-year firearm specifications.

Counts 7 and 8 charged him with kidnaping            with one-year and three-year firearm

specifications.     Counts 9 and 10 charged him with theft, with one-year and three-year

firearm specifications.     Count 13 charged him with carrying a concealed weapon, Count

14 charged him with improperly handling firearms in an automobile, and Count 15

charged him with having a weapon while under disability. All of the counts also set

forth a forfeiture specification for a firearm.
       {¶4} Bybee waived his right to a jury trial, and the matter against him proceeded

to a bench trial on September 4, 2016.1

       {¶5} The testimony of victims Joseph Walker (“Walker”) and Rameal Eaddy

(“Eaddy”)    established    that   after   completing     their   shifts   at     work,   around

11:45 p.m., on January 15, 2016, Walker drove them to Winners Bar in Cleveland

Heights.    They next went to Helen’s Game Time where they stayed until approximately

2:00 a.m. when the bar closed.     As they walked back to Walker’s car, two men who had

been in a dark sedan parked nearby, approached Walker and Eaddy.

       {¶6} Walker was accosted by a man in a white hooded sweatshirt, who patted

him down, and took the keys to his Hyundai Sonata, bank card, and several dollars from

his pockets. Walker testified that the man was not armed, and said “Don’t move too

much, you’re making me nervous.” Walker did not get a good look at the man, or his

accomplice, and he made no identifications in this matter.

       {¶7} Eaddy was accosted by a man in a gray hooded sweatshirt.              Eaddy testified

that this assailant put a gun to his chest and demanded that Eaddy give him everything he

had.   The assailant, identified as Hall, took Eaddy’s bank card, wallet, keys, and phone,

after the other man in the white hooded sweatshirt patted him down.             The man with the

gun then entered the passenger side of the dark sedan, and the man with the white

sweatshirt entered the driver’s side, and drove off.


       1
         Hall pled guilty to aggravated robbery with a three-year firearm specification, robbery,
carrying a concealed weapon, and having a weapon while under disability. The remaining charges
were dismissed. Hall was sentenced to prison for six years.
        {¶8} Walker and Eaddy went back inside the bar and called Cleveland Heights

Police at 2:18 a.m.      Cleveland Heights police officers responded within minutes.

Eaddy informed police that his iPhone was equipped with “Find My iPhone,” which could

determine the device’s location.     Officer Brian Ondercin (“Officer Ondercin”) began

tracking the iPhone     around 2:27 a.m.      He determined that the phone was at the

intersection of Euclid and Strathmore Avenues in East Cleveland, and was moving

westbound toward Eddy Road.         Officer Ondercin advised other units to be on the

lookout for a black sedan in this area.    Officer Ondercin later reported that the iPhone

was at the intersection of Eddy Road at Euclid Avenue, heading northward.

        {¶9}    After approximately fifteen minutes of tracking, Cleveland Heights Police

Officer Robert Sheid (“Officer Sheid”) spotted a black BMW sedan with two occupants

on Eddy Road at Euclid Avenue. Officer Sheid began following this car, the only car in

the area.   At approximately 2:45 a.m., Officer Sheid stopped the vehicle and waited for

assistance. At 2:50 a.m., the officers used Find My iPhone to verify that Eaddy’s phone

was inside the stopped car. Bybee, the driver of the car, was patted down. He did not

have a gun or other items from the robberies on his person.       Hall, who had been seated

in the passenger seat, had Eaddy’s iPhone. Other items, including the keys to both of the

victims’ cars, were in plain view inside the car.

        {¶10} The police obtained a search warrant for the car.     A loaded semiautomatic

handgun was recovered from an orange and black backpack on the floor of the passenger

side.   Eaddy’s wallet, cigarettes, and lighter were also recovered from the BMW.
      {¶11}    The officers brought Walker and Eaddy to the scene of the stop for a “cold

stand.”   Both men indicated that the black BMW was the vehicle driven by the

assailants. Eaddy identified Hall as the man with the gun who robbed him. However,

neither man was able to identify Bybee as the other assailant.       Additionally, Eaddy

learned that his credit card had been used for an online $200 purchase at Best Buy.

Officer Lewis Alvis (“Officer Alvis”) testified that he recovered both sets of keys stolen

from the victims.

      {¶12}    DNA analysis of the stolen keys recovered from inside the BMW

contained a mixture of major and minor components.        The major contributor was an

unknown male        and was determined not to be Bybee.      The minor contributor was

inconclusive due to insufficient information. DNA swabs from the magazine of the

weapon were also inconclusive, and DNA analysis of the gun and money had an

insufficient amount of DNA to complete testing.

      {¶13} Bybee agreed to be interviewed by police.      Bybee told Cleveland Heights

Police Detective Brett Billi (“Det. Billi”) that earlier in the day, he had been with his

girlfriend and was driving a silver Blazer SUV. The black BMW sedan was owned by

his brother, Dwayne.    Title evidence demonstrated, however, that the BMW was owned

by Todd Onley, who apprised police that Hall had rented it from him. Bybee stated that

he borrowed the black BMW from Dwayne then loaned it to Hall.       Bybee got a call from

Hall at approximately 2:00 a.m., regarding meeting and returning the BMW to Dwayne.
       {¶14} Bybee also told police that at the time of his arrest he had planned to go to

Euclid and Strathmore to meet his girlfriend.      He later changed his mind and was en

route to the area of East 55th Street to take Hall home when he was stopped by the police.

 Bybee acknowledged that the backpack in which the gun was found belongs to his

girlfriend.

       {¶15}   Det. Billi informed Bybee that he intended to obtain a search warrant for

his cell phone data to determine his location at the time of the robbery.     At that point,

Bybee told Det. Billi that he had stopped at Madison Avenue, a South Euclid bar located

approximately 3/4 mile away from Helen’s Game Time.

       {¶16} Det. Billi spoke with Bybee’s girlfriend in order to corroborate Bybee’s

statement, but she did not verify Bybee’s statement.        Det. Billi also determined that

Hall’s phone number was stored in Bybee’s phone under the name “Gutta.” Review of

the call logs revealed several calls between this number    and   Bybee    between     11:47

 p.m. on January 15, and 1:17 a.m. on January 16, 2016. Bybee also sent

text messages to his girlfriend at 1:37 a.m. indicating that he and “Gutta,” i.e., Hall, were

at the Sunny Spot lounge on Noble Road, approximately ten minutes north of Helen’s

Game Time.     Det. Billi   obtained video surveillance footage from Helen’s Game Time

that depicted a dark BMW backing into a parking spot near where Walker had been

parked.

       {¶17} The court subsequently convicted Bybee of all counts and specifications

except having a weapon while under disability.             The court merged the robbery
convictions, and the firearm specifications of Counts 1 and 2, and the firearm

specifications on the remaining offenses.    Bybee was sentenced to a total of nine years

of imprisonment.

                                Sufficiency of the Evidence

       {¶18} In his first assigned error, Bybee argues that the evidence is insufficient to

support his conviction for armed robbery and other offenses because neither victim

identified him, and the state’s DNA evidence does not show that he handled the victims’

property.

       {¶19}    The question of whether the evidence is legally sufficient to sustain a

verdict is a question of law.   State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52,

678 N.E.2d 541. It is “an inquiry about due process, * * * the resolution of which does

not allow the court to weigh the evidence.” State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983). In a sufficiency inquiry, an appellate court does not

assess whether the state’s evidence is to be believed but whether, if believed, the evidence

admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No.

91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. “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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77;

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
       {¶20}   The key question in this case is the identity of Hall’s codefendant who

robbed Walker and assisted with the aggravated robbery of Eaddy.        In this regard, we

note that generally, there is no requirement that a witness must make an in-court

identification of a defendant in criminal cases. State v. Collins, 8th Dist. Cuyahoga No.

98350, 2013-Ohio-488, ¶ 19, citing State v. Scott, 3 Ohio App.2d 239, 244, 210 N.E.2d

289 (11th Dist.1965); State v. Muhammad, 8th Dist. Cuyahoga No. 104111,

2016-Ohio-8322, ¶ 23.     Rather, circumstantial evidence may be sufficient to establish

the identity of the accused. Collins at ¶ 1; In re A.W., 8th Dist. Cuyahoga No. 103269,

2016-Ohio-7297; see also State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837

N.E.2d 315,     ¶ 75; State v. Kiley, 8th Dist. Cuyahoga Nos. 86726 and 86727,

2006-Ohio-2469, ¶ 10; Cleveland v. Williams, 8th Dist. Cuyahoga No. 101588,

2015-Ohio-1739, ¶ 25.

       {¶21} In this matter, Bybee complains that Walker and Eaddy testified that they

were “one hundred percent sure” that Bybee was not the assailant.       However, Walker

and Eaddy both testified that they did not see the man’s face, and Walker testified that

during Officer Lewis’s questioning, he was not the person who said “a hundred percent,

no.”   Instead, according to Walker, this was part of the police officer’s question to him.

Our review of the record indicates that the witnesses simply stated that they could not

make an identification; they did not exonerate Bybee.

       {¶22} Further, both victims identified Hall as the person with the gun, and the

state’s evidence demonstrated that Bybee and Walker were together shortly before and
after the robbery.    During his police interview, Bybee also admitted that at around the

time of the robbery, he was involved in loaning the BMW to Hall. Later, when Bybee

was made aware of cell phone information demonstrating his location at around the time

of the robbery, Bybee added that he was at Madison Avenue, another bar about three

quarters of a mile away from Helen’s Game Time at this time.              Approximately 27

minutes after the robbery, the car was being tracked as it traveled westbound.     When it

was stopped approximately 15 minutes later, it was being driven by Bybee. Walker’s

keys and Eaddy’s keys and wallet were inside the car, and Bybee’s girlfriend owned the

bag in which the gun was found.

       {¶23}     Therefore, after viewing     the evidence in a light most favorable to the

prosecution, despite the lack of DNA and identification testimony, we conclude that a

rational trier of fact could have found the essential elements of the crimes proven beyond

a reasonable doubt. See State v. Emanuel, 10th Dist. Franklin No. 96APA01-59, 1996

Ohio App. LEXIS 4054 (Sept. 19, 1996) (felonious assault conviction affirmed where

defendant was one of occupants of vehicle linked to offense a “relatively short time”

later; but robbery conviction reversed where defendant was one of the occupants of a

vehicle linked to this offense three hours later). Accord Kiley, 2006-Ohio-2469; Collins,

2013-Ohio-488.       The circumstantial evidence was sufficient in this case.

       {¶24}   This assigned error is without merit.

                              Manifest Weight of the Evidence
      {¶25}     Bybee next argues that his convictions are against the manifest weight of

the evidence.

      {¶26}     In Thompkins, the court explained a challenge to the manifest weight of

the evidence as follows:

      Weight of the evidence concerns “the inclination of the greater amount of

      credible evidence, offered in a trial, to support one side of the issue rather

      than the other. It indicates clearly to the jury that the party having the

      burden of proof will be entitled to their verdict, if, on weighing the evidence

      in their minds, they shall find the greater amount of credible evidence

      sustains the issue which is to be established before them. Weight is not a

      question of mathematics, but depends on its effect in inducing belief.”

      (Emphasis added.) Black’s [Law Dictionary (6th Ed.1990) 1594].

      When a court of appeals reverses a judgment of a trial court on the basis

      that the verdict is against the weight of the evidence, the appellate court sits

      as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of the

      conflicting testimony. [Quoting Tibbs v. Florida, 457 U.S. 31, 45, 102 S.

      Ct. 2211, 2220, 72 L.Ed.2d 652 (1982)]. See also State v. Martin (1983),

      20 Ohio App.3d 172, 175, * * *, 485 N.E.2d 717, 720-721 (“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 clearly lost its way and created
       such a manifest miscarriage of justice that the conviction must be reversed

       and a new trial ordered. The discretionary power to grant a new trial

       should be exercised only in the exceptional case in which the evidence

       weighs heavily against the conviction.”).

Id., 78 Ohio St.3d at 386.

       {¶27}    In this matter, the state presented evidence that both Walker and Eaddy

identified Hall as the assailant with the gun and the state presented text evidence that

Bybee and Walker were together shortly before and right after the robbery.           Bybee

loaned the BMW to Hall, and admitted that he was within a short distance of Helen’s

Game Time.      When the BMW was stopped a short time after the robbery, it was being

driven by Bybee.    Walker’s keys and Eaddy’s keys and wallet were inside the car.

       {¶28} Reviewing the entire record, weighing the evidence and all reasonable

inferences, considering the credibility of witnesses and resolving conflicts in the

evidence, we cannot say that the trial court clearly lost its way and created a manifest

miscarriage of justice in determining that Bybee was one of          Walker’s and Eaddy’s

assailants.   Bybee’s convictions for aggravated robbery, robbery, kidnaping, and other

offenses in connection with this matter are not against the manifest weight of the

evidence. Accord Muhammad, 2016-Ohio-8322 at ¶ 23.

       {¶29}    The second assigned error is without merit.

       {¶30}    Judgment affirmed.

       It is ordered that appellee recover of 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.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

TIM McCORMACK, P.J., and
MELODY J. STEWART, J., CONCUR
