[Cite as State v. Fields, 2014-Ohio-299.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99593




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                            TAHJ FIELDS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-570087

        BEFORE: Keough, J., Boyle, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: January 30, 2014
ATTORNEY FOR APPELLANT

James C. Young
75 Public Square, Suite 600
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary Weston
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

        {¶1} Defendant-appellant, Tahj Fields, appeals his conviction for robbery. For

the reasons that follow, we affirm.

        {¶2} In 2012, Fields was charged with aggravated robbery, robbery, kidnapping,

and possession of criminal tools.     The matter proceeded to trial where the jury heard the

following evidence.

        {¶3} On September 24, 2012, police officers Montijo and Jones responded to a call

regarding a robbery in Tremont.       While en route, Officer Montijo observed suspicious

activity of two young males, who fit the description of the suspects to the robbery,

walking behind another male. Officer Montijo testified that she observed the two males

gaining ground on the male in front of them and when the males were approximately five

feet behind the male, they covered their heads with hoodies and walked even closer to the

male.   At that point, the officers turned their zone car around and exited the car with

their guns drawn.     The two males immediately crossed the street and when the offices

ordered the males to stop, they complied.      The males were secured, taken back to the

zone car, and patted down for officer safety.     Officer Montijo discovered and removed

money, a gun, and an iPhone from the pocket of the male later identified as Jamahl

Cunningham. The other arrested male was identified as Tahj Fields.

        {¶4} Jack Ricchiuto testified that he was taking a walk after dinner when he was

approached and surrounded by three young men, who he described as “kids” — “late

teens early 20’s.” Ricchiuto stated that one of the males stood in front of him, putting a
gun to his chest, while the other two stood behind Ricchiuto. According to Ricchiuto, he

believed the gun to be real and he gave the men his cell phone, lighter, cigar, and wallet.

Ricchiuto testified that one of the males standing behind him grabbed his ear, which

caused pain and redness.       After the males took the items, they walked away and

Ricchiuto went to a local establishment to call the police.       After calling the police,

Ricchiuto went home, got on his scooter, and was headed back to the area where he was

robbed when he encountered Officer Francis McManamon who told him that the suspects

were arrested.   He followed Officer McManamon to the location where other officers

had two men in a police cruiser.

       {¶5} Ricchiuto testified that he stood behind the cruiser, and although he did not

look at the faces of the arrested individuals, he positively identified the arrested males as

two of the males that robbed him based on their “figures” — “they looked exactly like the

figures that I had seen, you know, ten minutes before that.” Ricchiuto also identified the

cell phone that was recovered as his iPhone.

       {¶6} Detective Dale Moran testified that he received the assignment of

investigating the robbery.     After interviewing Jamahl Cunningham, he received the

names of three more suspects involved in the robbery — Jerome Cunningham, Hector

Delvalle, and Juan Fontenaz.

       {¶7} Jerome Cunningham testified at trial that he and Fields acted as “look-outs”

from behind a house while Jamahl, Hector, and Juan robbed Ricchiuto. According to

Jerome, earlier that day, they all met up on Holmden Avenue and planned on robbing
someone. He testified that they did not discuss the roles they each would play, but just

discussed the robbery would be in Tremont because they could walk there.        He testified

that Hector, Juan, and Jamahl each had a gun in their possession. In court, he identified

the gun that Jamahl had in his possession that evening.

          {¶8} Jerome testified that although he did not actually see Jamahl, Hector, and

Juan rob someone, he did see in Jamahl’s possession after the robbery money, a phone,

cigar, and lighter.    Afterwards, he, Hector, and Juan were going to head home, whereas

Jamahl “was going to rob someone else” and Fields went with him. According to

Jerome, Fields did not say anything or indicate what he was planning on doing, but just

went with Jamahl. Jerome admitted he pled guilty to robbery in connection with this

case.

          {¶9} Hector’s testimony greatly differed from Jerome’s testimony. He testified

that there was no plan to rob anyone; rather, they were all walking to Tremont to visit a

friend.     According to Hector, Jamahl and Juan ran across the street in the direction of a

man on a cell phone, with Fields following behind them. Hector and Jerome walked by

the three others as they robbed Ricchiuto.       Hector testified that Jamahl had the gun

pointed at the man, while Juan was standing behind the man searching through the man’s

pockets. According to Hector, Fields was just standing next to the victim. Hector

testified that as he looked back to see what was going on, Fields started walking towards

him and Jerome.        After the robbery, they were all walking back towards Holmden

Avenue when they passed a guy on the corner who was talking on his cell phone.
Hector testified that Fields stated: “That was easy. Look at this guy.” Hector testified

that he understood Tahj’s statement to mean that the “first robbery was easy and let’s try

it again.”   According to Hector, Jamahl and Fields left the group and walked in the

direction of the guy on the phone. Hector admitted to pleading guilty to robbery.

       {¶10} The jury found Fields not guilty of aggravated robbery, kidnapping, and

possession of criminal tools, but guilty of robbery. The court sentenced Fields to two

years in prison. Fields appeals, raising five assignments of error for our review.

                                I.   Inadmissible Evidence

       {¶11} Fields’s first assignment of error states:      “[t]he trial court abused its

discretion and violated appellant’s right to due process by allowing the state to introduce,

in the absence of any predicate activity connected to him, testimony about an unrelated

and unsubstantiated robbery.” Fields argues that the testimony regarding an alleged

second robbery given by Officer Montijo and Hector was impermissible under Evid.R.

403(A) and 404(B).

       {¶12} Trial court decisions regarding the admissibility of any evidence, including

Evid.R. 404(B) “other acts” evidence are determinations that rest within the sound

discretion of the trial court and will be reviewed for an abuse of discretion. State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14. An abuse of

discretion implies that a court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). It has “also

been described as including a ruling that lacks a ‘sound reasoning process.’” Morris,
quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50

Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶13} Evid.R. 403(A) provides that “although relevant, evidence is not admissible

if its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.”

       {¶14} Evid.R. 404(B) provides that “evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show that he acted in

conformity therewith.    It may however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.”    Similarly, R.C. 2945.59 provides that evidence of other crimes

may be admissible to show “motive or intent, the absence of mistake or accident on

[defendant’s] part, or the defendant’s scheme, plan, or system in doing the act in

question.”

       {¶15} Hector testified about what occurred following the robbery of Ricchiuto.

According to Hector, after the robbery, they were walking back to Holmden Avenue and

while they were standing on the corner, a guy on a cell phone walked passed them.

Hector testified that Fields stated to the group, “That was easy. Look at this guy.”

       {¶16} While defense counsel initially objected to Hector’s testimony about how

Fields responded as the man walked by, no objection was made to the testimony and

statement now challenged on appeal.     Accordingly, we may review the argument under a

plain error standard of review. State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545
(1968), paragraph three of the syllabus.    Whether we review this testimony for plain

error or for an abuse of discretion, we find that the testimony was admissible as

non-hearsay under Evid.R. 801(D)(2).      Under Evid.R. 801(D)(2)(a), a statement is not

hearsay if it is offered against a party and is his own statement. State v. Kimmie, 8th

Dist. Cuyahoga No. 99236, 2013-Ohio-4034, ¶ 91. Accordingly, the statement was not

“other acts” under Evid.R. 404(B) because “That was easy” was an admission to the

robbery of Ricchiuto.

       {¶17} We also find that the probative value of the statement was not substantially

outweighed by the danger of unfair prejudice or misleading the jury to render the

testimony inadmissible under Evid.R. 403(A). Contrary to the argument on appeal, the

evidence in this case is overwhelming of Fields’s guilt. The jury heard testimony from

two of Fields’s codefendants that he played some role in the robbery.    Whether he acted

as a lookout as Jerome testified, or as a direct player as Hector testified, he planned and

participated in the robbery of Ricchiuto. Moreover, Fields was arrested with Jamahl

who had Ricchiuto’s property on him, directly after the robbery.         Accordingly, we

cannot say that the outcome of the trial would have been different absent the challenged

limited testimony of Hector.

       {¶18} Fields also challenges the testimony given by Officer Montijo regarding

what she observed as they were responding to a robbery call.    She testified she observed

two males, who fit the description of the suspects to the robbery, walking quickly behind

another male and as they got closer they put their hoodies up over their heads.   When the
prosecutor asked the officer what happened to the male that was walking ahead of the two

males that were subsequently arrested, she responded, “He continued to walk.         He didn’t

stop. At that point, we had to make a decision. We either stopped and talked to the

person in front or we talked to the two that were obviously observed putting up their

hoodies, what appeared to be, going to be another robbery.”

       {¶19} The record clearly demonstrates that the trial court sustained defense

counsel’s objection made regarding the officer’s answer. Accordingly, there was no error

by the trial court regarding Officer Montijo’s testimony.

       {¶20} Insofar as Fields argues that the trial court should have granted his motion

for a mistrial because of this testimony, the objection made to her testimony was

sustained.   The fact that defense counsel did not move to strike Officer Montijo’s

response from the record or request that the court instruct the jury to disregard the answer

is not raised as an issue before this court.

       {¶21} Furthermore, at the request of defense counsel, the trial court gave a

“curative instruction” to the jury during its final charge that the jury was only to consider

the incident involving Ricchiuto.       The court specifically stated:   “The charges set forth

in this case pertain to a single incident involving a single victim, namely Jack Ricchiuto.

Disregard any testimony regarding any other incident.”                   Moreover, the record

demonstrates that defense counsel helped prepare the instruction and agreed to the

instruction given by the trial court.
       {¶22} In light of the trial court’s instruction, which the jury is presumed to follow,

it cannot be said that Fields’s ability to receive a fair trial was compromised as he claims.

 See State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d 623. The

instruction given by the trial court was clear and specifically addressed the arguments

Fields now makes on appeal. Accordingly, we find no abuse of discretion. Fields’s first

assignment of error is overruled.

                              II. Prosecutorial Misconduct

       {¶23} In his second assignment of error, Fields contends that the state’s

introduction of speculative statements by police officers about his commission of an

uncharged, unsubstantiated robbery that supposedly occurred immediately after the one

which he was on trial, constituted prosecutorial misconduct and denied him due process

and equal protection under the law.

       {¶24} The test for prosecutorial misconduct is whether the conduct was improper

and, if so, whether it prejudicially affected the substantial rights of the accused. State v.

Jones, 90 Ohio St.3d 403, 420, 2000-Ohio-187, 739 N.E.2d 300. The effect of the alleged

misconduct must be judged in the context of the entire trial, and not treated as an isolated

incident in an otherwise properly tried case. State v. Singleton, 8th Dist. Cuyahoga No.

98301, 2013-Ohio-1440, ¶ 58. Accordingly, an appellate court should only reverse a

conviction if the effect of the misconduct “permeates the entire atmosphere of the trial,”

such that the defendant has been denied a fair trial. Id., citing State v. Tumbleson, 105

Ohio App.3d 693, 696, 664 N.E.2d 1318 (12th Dist.1995). In analyzing whether a
defendant was deprived of a fair trial, an appellate court must determine beyond a

reasonable doubt whether, absent the improper questions or remarks, the jury would have

found the defendant guilty. State v. Maurer, 15 Ohio St.3d 239, 266-267, 473 N.E.2d

768 (1984).

       {¶25} In this case, Fields contends that the prosecutor engaged in misconduct by

asking questions that “the prosecutor knew the prejudicial effect of [when] asking the

police what happened after the robbery.”      It appears that Fields is arguing that the

prosecutor purposefully asked questions to illicit inadmissible answers. We disagree.

       {¶26} During Officer Montijo’s testimony, she explained what she observed as

they were responding to a robbery call.   She testified she observed two males, who fit

the description of the suspects to the robbery, walking quickly behind another male and as

they got closer they put their hoodies up over their heads.   When the prosecutor asked

the officer what happened to the male that was walking in front of the two males that

were subsequently arrested, she responded, “He continued to walk.    He didn’t stop.    At

that point, we had to make a decision. We either stopped and talked to the person in

front or we talked to the two that were obviously observed putting up their hoodie, what

appeared to be, going to be another robbery.”         The trial court sustained defense

counsel’s objection made regarding the officer’s answer, but the defense did not move to

strike the response.

       {¶27}   Reviewing the prosecutor’s entire examination of Officer Montijo, the

prosecutor’s question was not improper. It would be unfair for this court to impute
misconduct on a prosecutor when a witness supplies an answer that goes beyond the

question asked, without any additional evidence of impropriety.               Moreover, as

previously discussed, the trial court sustained defense counsel’s objection to Officer

Montijo’s response and instructed the jury at the close of trial that they were only

considering one incident and to disregard any other incident.

       {¶28} Fields’s second assignment of error is overruled.

                             III.   Sufficiency of the Evidence

       {¶29} In his third assignment of error, Fields contends that his conviction for

robbery was not supported by sufficient evidence.

       {¶30} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12.     An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

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

provides that “no person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * * inflict, attempt to inflict, or threaten

to inflict physical harm on another.”

       {¶32} Fields argues the evidence was insufficient because “no evidence other than

Hector’s testimony supports the idea that [he] was involved at all.”     Under our standard

of review, Hector’s testimony alone is sufficient evidence to support Fields’s conviction

for robbery.    Hector testified that Jamahl, Fields, and Juan approached and surrounded

the victim. According to Hector, Fields stood directly to the side of the victim while

Jamahl pointed the gun at the victim and searched through the victim’s pockets, taking his

property.      Hector testified that Juan was standing behind the victim and then

subsequently struck the victim on the side of his face causing him physical harm.

       {¶33} Accordingly, viewing the evidence in light most favorable to the

prosecution, we find that sufficient evidence was presented supporting Fields’s robbery

conviction.

                          IV. Manifest Weight of the Evidence

       {¶34} In his fourth assignment of error, Fields contends that his conviction for

robbery was against the manifest weight of the evidence.

       {¶35} “‘A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion.’”       State v. Ponce, 8th Dist. Cuyahoga No.

91329, 2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d

1356 (1982).     The manifest-weight-of-the-evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the evidence, 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. State v. Otten, 33 Ohio App.3d

339, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary

power to grant a new trial should be exercised only in exceptional cases where the

evidence weighs heavily against the conviction.        Thompkins, 78 Ohio St.3d at 386,

1997-Ohio-52, 678 N.E.2d 541.

       {¶36} Fields argues that his convictions are against the manifest weight of the

evidence because the victim’s on-scene identification of Fields was unreliable and the

police did not conduct a thorough investigation.         However, the jury heard all the

evidence, including conflicting testimony by the codefendants and police officers, and

considered the circumstances surrounding the victim’s identification.

       {¶37}   Under well-settled precedent, we are constrained to adhere to the principle

that the credibility of witnesses and the weight to be given to their testimony are matters

for the trier of fact to resolve. See State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967). Although we consider the credibility of witnesses in a manifest weight

challenge, we are mindful that the determination regarding witness credibility rests

primarily with the trier of fact because the trier of fact is in the best position to view the

witnesses and observe their demeanor, gestures, and voice inflections — observations that

are critical to determining a witness’s credibility. State v. Clark, 8th Dist. Cuyahoga No.

94050, 2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205,
1996-Ohio-222, 661 N.E.2d 1068, and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d

548 (1964).    The trier of fact is free to accept or reject any or all the testimony of any

witness.   State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16. As this

court has previously recognized, a defendant is not entitled to a reversal on

manifest-weight grounds merely because inconsistent evidence was presented at trial.

State v. Gaughan, 8th Dist. Cuyahoga No. 90523, 2009-Ohio-955, ¶ 32, citing State v.

Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958 at ¶ 21.

      {¶38} Regardless which testimony is believed, Fields’s conviction for robbery was

not against the manifest weight of the evidence. Jerome testified that he and Fields

were acting as look-outs while the other three approached the victim and robbed him.

Hector testified that Fields was an active participant by approaching the victim with Juan

and Jamahl.    Under the state’s theory of the case, Fields’s actions — either as a look-out

or as an active participant, demonstrated that he aided and abetted in the commission of

the robbery.

      {¶39} The jury could not ignore that Fields was arrested with Jamahl, who had the

gun and the victim’s property on him. Moreover, the jury consistently heard that Fields

played some role in the robbery.    Based on the record before us, we cannot say that this

is the exceptional case where the court clearly lost its way in finding Fields guilty of

robbery.   The jury’s verdict demonstrates that it considered all the evidence, weighed the

testimony of all the witnesses, and discounted and accepted testimony where the jury

determined it was appropriate. Accordingly, his fourth assignment of error overruled.
                                V.   Cumulative Effect of Errors

          {¶40} In his fifth assignment of error, Fields contends that the cumulative effect of

the errors at trial violated his right to due process and rendered the trial fundamentally

unfair.

          {¶41} The “cumulative error” doctrine states that a “conviction will be reversed

where the cumulative effect of errors in a trial deprives a defendant of the constitutional

right to a fair trial even though each of the numerous instances of the trial court error does

not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64,

1995-Ohio-168, 656 N.E.2d 623. In order to find cumulative error, we must find: (1)

that multiple errors were committed at trial, and (2) there is a reasonable probability that

the outcome of the trial would have been different but for the combination of the

separately harmless errors.          State v. Viceroy, 8th Dist. Cuyahoga No. 97031,

2012-Ohio-2494, ¶ 21, citing State v. Clark, 8th Dist. Cuyahoga No. 89371,

2008-Ohio-1404, ¶ 62.

          {¶42} Having found no causes for reversal, this doctrine is not applicable to this

case. Accordingly, Fields’s fifth assignment of error is overruled.

          {¶43} 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.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
