[Cite as State v. Bryant, 2013-Ohio-4446.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 12CAA120088
EDWARD R. BRYANT

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 12CR-I-010013A


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         October 7, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL O'BRIEN                                  JOHN R. CORNELY
Delaware County Prosecuting Attorney           21 Middle Street
                                               PO Box 248
ERIC PENKAL                                    Galena, Ohio 43021
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 12CAA120088                                                   2

Hoffman, P.J.


       {¶1}   Defendant-appellant Edward R. Bryant appeals his conviction entered by

the Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The following evidence was adduced as testimonial evidence at trial

herein: On October 11, 2011, Rickie Sivert arranged to meet with Appellant, known on

the street as “Black Rob,” to purchase heroine. Rather than purchasing the heroine, he

and a friend went to Columbus and stole $150.00 worth of heroine from Appellant.

Sivert then used the heroine.

       {¶3}   Appellant contacted his cousin, Joseph Barchetti, and told him he needed

a ride to Sivert’s apartment due to the theft.       Barchetti and his girlfriend, Chloe

Chambers, drove Appellant and his co-defendant, Avery Brock, known on the street as

“Buck,” to Sivert’s apartment. At the time, Sivert also owed Barchetti money for drugs

Barchetti had fronted to Sivert two months prior.

       {¶4}   On the same date of October 10, 2011, Sivert overheard Barchetti and

other individuals outside his residence knocking on the door and asking him to come

outside.   When he refused, the individuals threw a grill at the back window of the

residence and kicked in the front door.

       {¶5}   Sivert, his girlfriend, Cassandra Wooten, and their infant son hid in the

attic of the residence during the incident and called 911.

       {¶6}   Wooten testified she saw Barchetti and Chambers outside the house

during the incident, and heard two male voices inside her home destroying the first floor,

and coming upstairs.     Various items in the residence were destroyed and upset,
Delaware County, Case No. 12CAA120088                                                     3


including a television, which was thrown to the ground, a fish tank which was broken,

and furniture which was destroyed. Appellant and the other individuals fled the scene

as the police arrived.

          {¶7}   Following the incident, Barchetti and Chambers cooperated with the police

investigating the home invasion. Both identified Appellant as the perpetrator. Barchetti

and Chambers provided a detailed description of the events occurring at the apartment

as related to the burglary. Barchetti described Appellant, indicating he had a tattoo on

his right arm stating “DDBLOCK.”         Both also identified Appellant from an OHLEG

photograph.

          {¶8}   Appellant was indicted on one count of aggravated burglary, in violation of

R.C. 2911.11(A)(2), a felony of the first degree and a firearm specification; one count of

having a weapon under disability, in violation of R.C. 2923.13(A)(2), a felony of the third

degree; and one count of vandalism, in violation of R.C. 2909.05(A), a fifth degree

felony.

          {¶9}   On February 22, 2012, Appellant filed a motion to suppress challenging

the out of court identification. The trial court denied the motion.

          {¶10} The matter proceeded to a jury trial. Appellant was tried together with his

co-defendant Avery Brock. Following the presentation of the state’s evidence, Appellant

filed a Criminal Rule 29 motion for acquittal. The trial court granted the motion

dismissing the firearm specification and reduced the charge of aggravated burglary to a

charge of burglary, a felony of the second degree, in violation of R.C. 2911.12(A)(1).

The trial court dismissed the weapons under disability charge and reduced the
Delaware County, Case No. 12CAA120088                                                   4


vandalism charge to criminal damaging, in violation of R.C. 2909.06(A)(1), a

misdemeanor of the second degree.

      {¶11} Appellant was convicted on all counts. Appellant’s co-defendant, Avery

Brock, was acquitted of the charges. The trial court sentenced Appellant to six years in

prison as to the burglary count, and sixty days in jail on the criminal damaging count, to

run concurrently.

      {¶12} Appellant now appeals, assigning as error:

      {¶13} “I. APPELLANT’S CONVICTION IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

      {¶14} “II. THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION TO

SUPPRESS THE OUT OF COURT IDENTIFICATION BY MR. JOSEPH BARCHETTI

AND MS. CHLOE CHAMBERS VIOLATED HIS RIGHT TO A FAIR TRIAL AND DUE

PROCESS OF LAW.”

                                               I.

      {¶15} In the first assignment of error, Appellant maintains his convictions for

burglary and criminal damaging are against the manifest weight of the evidence.

      {¶16} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
Delaware County, Case No. 12CAA120088                                                  5


evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶17} Appellant was convicted of burglary, in violation of R.C. 2911.12(A)(1),

and criminal damaging, in violation of R.C. 2909.06(A)(1).

       {¶18} R.C. 2911.12(A)(1) reads,

       {¶19} “(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶20} “(1) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, when another person other than

an accomplice of the offender is present, with purpose to commit in the structure or in

the separately secured or separately occupied portion of the structure any criminal

offense;”

       {¶21} R.C. 2909.06(A)(1) reads,

       {¶22} “(A) No person shall cause, or create a substantial risk of physical harm to

any property of another without the other person's consent:

       {¶23} “(1) Knowingly, by any means;”

       {¶24} Appellant argues the substantive evidence presented at trial as to

Appellant and his co-defendant Avery Brock was identical on both counts. Only Joseph

Barchetti testified Appellant and Brock were present when the incident occurred.

Appellant was convicted of burglary and criminal damaging, while Avery was acquitted

of the charges.

       {¶25} In   State   v.   Hurt,   (October   11,   1979),   Cuyahoga   No.   39389,

1979WL210430, the Eighth District Court of Appeals held,
Delaware County, Case No. 12CAA120088                                                     6

       {¶26} “The basic rule as to inconsistent verdicts was originally stated in Griffin v.

State (1868), 18 Ohio St. 438. This rule is: ‘A verdict will not be set aside as

inconsistent, or uncertain, because it finds differently as to counts in which there is no

material difference.’ This rule of not requiring consistency in the verdicts as to different

counts of an indictment has been regularly adhered to in Ohio. Browning v. State

(1929), 120 Ohio St. 62, 165 N.E. 566; State v. McNicol (1944), 143 Ohio St. 39, 47, 53

N.E.2d 808; State v. Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137.

       {¶27} “In the instant case, however, the alleged inconsistency occurred in the

different verdicts as to the three codefendants on the same [Illegible text]. Generally,

there is no requirement that judgments on the same count of an indictment be

consistent as to codefendants. See State v. Morris (1975), 42 Ohio St.2d 307, 325, 329

N.E.2d 85; State v. Hirsch (1956), 101 Ohio App. 425, 131 N.E.2d 419; Cleveland v.

Ryan (1958), 106 Ohio App. 110, 148 N.E.2d 691. This appears to be the majority rule

even where two or more codefendants are tried together on the same charges and

where one codefendant is convicted of a lesser included offense. See Annot. 22 A.L.R.

3d 717, 734, 735.”

       {¶28} Where multiple issues are presented before a jury with regard to

codefendants, consistent verdicts are not required.         Here, Appellant and Brock’s

participation and identity were at issue; therefore, there is no requirement as to

consistent verdicts between the codefendants.           While the substantive evidence

presented on the counts was identical, the issues presented and developed varied in

scope and degree as to each defendant. Testimony was offered at trial as to Appellant,

including a specific motive to burglarize the residence, irrelevant to his codefendant. A
Delaware County, Case No. 12CAA120088                                                     7


review of the record demonstrates the jury was properly instructed as to motive and as

to an accomplice jury instruction.

       {¶29} We find Appellant’s conviction is not against the manifest weight of the

evidence.

       {¶30} The first assignment of error is overruled.

                                                II.

       {¶31} In the second assignment of error, Appellant argues the trial court erred in

allowing evidence as to the out of court photo identification of Appellant.

       {¶32} Here, the State concedes lack of compliance with R.C. 2933.83.

However, maintains the identification was otherwise reliable.

       {¶33} An identification of a defendant is unreliable only if the photographic

identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.        Photographic identification

procedures must be viewed under the totality of the circumstances. Stoval v. Denno

(1967), 388 U.S. 296. The practice of showing only one photograph to a potential

eyewitness is not encouraged; however, such measures have been shown to be both

reliable and necessary. State v. Battee (1991), 72 Ohio App.3d 660.

       {¶34} In Neil v. Biggers (1972), 409 U.S. 188, the Supreme Court set forth a set

of guidelines to assist in weighing the totality of circumstances,

       {¶35} "[T]he factors to be considered in evaluating the likelihood of

misidentification include the opportunity of the witness to view the criminal at the time of

the crime, the witness' degree of attention, the accuracy of the witness' prior description
Delaware County, Case No. 12CAA120088                                                    8


of the criminal, the level of certainty demonstrated by the witness at the confrontation

and the length of time between the crime and the confrontation."

       {¶36} Here, viewing the photographic identification made by Barchetti under the

totality of the circumstances, while only one photograph was shown, Barchetti is

Appellant's cousin; therefore, there was not a substantial likelihood of misidentification.

Further, Chambers' identification of Appellant, assuming there was a substantial

likelihood of misidentification, was cumulative to the identification of Barchetti, and,

therefore, not prejudicial.

       {¶37} The second assignment of error is overruled.

       {¶38} Appellant’s conviction in the Delaware County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY
Delaware County, Case No. 12CAA120088                                             9


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
EDWARD R. BRYANT                          :
                                          :
       Defendant-Appellant                :        Case No. 12CAA120088


       For the reasons stated in our accompanying Opinion, Appellant’s conviction in

the Delaware County Court of Common Pleas is affirmed. Costs to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. SHEILA G. FARMER


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY
