[Cite as State v. Gibson, 2018-Ohio-4454.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                          Court of Appeals No. L-17-1212

        Appellee                                       Trial Court No. CR0201701850

v.

Joshua Gibson                                          DECISION AND JUDGMENT

        Appellant                                      Decided: November 2, 2018

                                                *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, for appellee.

        Patricia Horner, for appellant.

                                                *****

        JENSEN, J.
                                             I. Introduction

        {¶ 1} Appellant, Joshua Gibson, appeals the judgment of the Lucas County Court

of Common Pleas, sentencing him to a total of 22.5 years in prison after a jury found him

guilty of aggravated robbery. Finding no error in the proceedings below, we affirm.
                          A. Facts and Procedural Background

       {¶ 2} On May 18, 2017, appellant was indicted on one count of aggravated

robbery in violation of R.C. 2911.01(A)(1) and (C). The indictment included an attached

firearm specification under R.C. 2941.145(D), (E), and (F), and a repeat violent offender

specification under R.C. 2941.149.

       {¶ 3} Following pretrial discovery, a jury trial commenced on July 11, 2017. The

following facts were established at trial.

       {¶ 4} On May 8, 2017, A.M. was working as a pharmacist at the Toledo Family

Pharmacy. A customer in a black jacket and red hat approached the counter of the

pharmacy. The pharmacy section is surrounded by bullet proof glass, except for a

window at the counter where the pharmacists can communicate with the customers. The

man in the red hat gave A.M. a false name. As A.M. looked for the name in the

computer, the man in the red hat jumped onto the counter and brandished a black

handgun. The man pointed the gun at A.M. and demanded that he be given all the pills or

“I’ll kill somebody today.” The man in the red hat then attempted to fire his gun at the

floor three times, but it did not fire. A.M. was able to locate and press the emergency

button to alert police. Having observed the gun malfunction, the manager tried to tackle

the man in the red hat. This caused the man to stumble and he grabbed the inside of the

glass to gain his balance. After this, he fell down from the counter and fled.

       {¶ 5} The man in the red hat was pursued by both the manager and A.M. into the

parking lot. This entire incident was captured on the pharmacy’s surveillance video. The




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manager and A.M. followed the man in the red hat down the street and into a yard before

losing track of him. A.M. and the manager then returned to the pharmacy to wait on the

arrival of the police.

       {¶ 6} Once police arrived, A.M. discussed the matter and described the suspect as

a short, black, male, with a tattoo under his eye. A.M. informed police that the suspect

was wearing a red hat and black jacket. The police proceeded to examine the pharmacy’s

video surveillance footage. The surveillance footage confirms that the suspect touched

the glass as he was attempting to regain his balance.

       {¶ 7} On May 9, 2017, police returned to the pharmacy to collect fingerprints from

the glass that was touched by the suspect. The police were able to recover two prints and

found no other prints on the glass. These two prints were later matched to appellant’s

middle and ring fingers. Appellant’s prints were obtained from appellant at the Lucas

County Corrections Center.

       {¶ 8} Subsequently, A.M. was shown an array of six people, including appellant.

A.M. could not be certain of the suspect’s identity, but was able to narrow the identity to

two of the individuals, one of which was appellant.

       {¶ 9} During trial, the investigating officers testified to recovering a hat, coat, gun,

and magazine with 3 bullets from various yards in the neighborhood surrounding the

pharmacy. These items appeared to be the same items used in the robbery, and witnesses

saw the assailant pass through the areas where the items were found. The gun was found

to be operable. At no time did the prosecution claim any of these items belonged to




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appellant, and there were no fingerprints or DNA on any of these items that could be used

to identify appellant.

       {¶ 10} At the conclusion of the jury trial, appellant was found guilty of aggravated

robbery with an attendant firearm specification. Appellant was also found to be a repeat

violent offender. Ultimately, appellant was sentenced to ten years for the aggravated

robbery count, plus an additional consecutive sentence of 54 months for the firearm

specification. The court further ordered appellant to serve eight years for the repeat

violent offender specification, to be served consecutive to the aforementioned prison

terms, for a total prison term of 22.5 years.

                                 B. Assignments of Error

       {¶ 11} Appellant has timely appealed his conviction, and assigns as error the

following:

              1. Appellant’s conviction was against the manifest weight of the

       evidence.

              2. Appellant’s trial attorney was ineffective.

                                        II. Analysis

     A. Was the trial court’s decision against the manifest weight of the evidence?

       {¶ 12} In his first assignment of error, appellant argues that his conviction was

against the manifest weight of the evidence. In a manifest weight challenge,

              this court sits as if the “thirteenth juror” and must review the record,

       weigh the evidence and all reasonable inferences drawn from it, consider




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       the witnesses’ credibility and decide, in resolving any conflicts in the

       evidence, whether the trier-of-fact clearly lost its way and created such a

       manifest miscarriage of justice that the conviction must be reversed and a

       new trial ordered. See State v. Leech, 6th Dist. Lucas No. L-13-1156,

       2015-Ohio-76, ¶ 32, citing State v. Martin, 20 Ohio App.3d 172, 175, 485

       N.E.2d 717 (1st Dist.1983).

       {¶ 13} Appellant does not dispute that the state’s evidence demonstrates the

commission of an aggravated robbery as alleged in the indictment. Instead, appellant

argues that the evidence does not demonstrate that he was the perpetrator of the

aggravated robbery.

       {¶ 14} In support of his argument, appellant claims that A.M. made inconsistent

identifications in this case. However, the record lacks any identification of appellant

made by A.M. Rather, the identification of appellant as the perpetrator of the robbery

was established by the state utilizing the fingerprints found at the scene of the robbery.

       {¶ 15} Fingerprint evidence has long been seen as a reliable form of identification.

State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 122, citing State

v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 93. The Supreme

Court of Ohio has recognized the use of fingerprints for identification purposes in

criminal cases, stating “fingerprints corresponding to those of the accused are sufficient

proof of his identity to sustain his conviction, where the circumstances show that such

prints, found at the scene of the crime, could only have been impressed at the time of the




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commission of the crime.” State v. Miller, 49 Ohio St.2d 198, 361 N.E.2d 419 (1977),

syllabus.

         {¶ 16} Here, the surveillance video from the pharmacy confirms that the

perpetrator of the aggravated robbery touched the glass at a location not ordinarily

touched by customers or pharmacy staff. When examined, the glass contained only

appellant’s fingerprints. Further, appellant was the only individual observed touching the

spot on the glass from which the fingerprints were lifted. Under these circumstances, the

state’s fingerprint evidence, paired with the surveillance video, demonstrate that appellant

was the perpetrator of the aggravated robbery at the pharmacy. We find that the trier-of-

fact did not clearly lose its way. Thus, appellant’s first assignment of error is not well-

taken.

                      B. Was trial counsel for appellant ineffective?

         {¶ 17} In his second assignment of error, appellant argues that his trial counsel

was ineffective for failing to request the suppression of the jacket, hat, gun, and

ammunition clip, all of which were found in the area around the crime scene.

                A convicted defendant’s claim that counsel’s assistance was so

         defective as to require reversal of a conviction or death sentence has two

         components. First, the defendant must show that counsel’s performance

         was deficient. This requires showing that counsel made errors so serious

         that counsel was not functioning as the “counsel” guaranteed the defendant

         by the Sixth Amendment. Second, the defendant must show that the




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       deficient performance prejudiced the defense. This requires showing that

       counsel’s errors were so serious as to deprive the defendant of a fair trial, a

       trial whose result is reliable. Unless a defendant makes both showings, it

       cannot be said that the conviction or death sentence resulted from a

       breakdown in the adversary process that renders the result unreliable.

       Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

       674 (1984).

       {¶ 18} Here, appellant claims that since there was no DNA evidence tying the

jacket, hat, gun, and ammunition clip to him, the evidence should have been suppressed

in a motion in limine. Appellant cites no authority to support his claim that this evidence

was inadmissible. The extent to which the state failed to directly link this evidence to

appellant goes to the weight of the evidence, not its admissibility, and whether the items

belonged to appellant was a question for the trier-of-fact. Moreover, we find that the

fingerprint evidence, standing alone, was sufficient for the trier-of-fact to identify

appellant as the man in the video. Therefore, we conclude that the outcome of this case

would not have been altered had trial counsel filed a motion in limine in an effort to

prevent the state’s admission of the jacket, hat, gun, and ammunition clip into evidence.

       {¶ 19} Accordingly, appellant’s second assignment of error is not well-taken.




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                                     III. Conclusion

       {¶ 20} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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