[Cite as State v. Jackson, 2017-Ohio-635.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.       28192

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RESHARD JACKSON                                        COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 14 11 3501 (I)

                                 DECISION AND JOURNAL ENTRY

Dated: February 22, 2017



        CARR, Judge.

        {¶1}     Defendant-Appellant, Reshard Jackson, appeals from his conviction in the

Summit County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     On the evening of November 15, 2014, multiple law enforcement agencies

conducted a raid at a home in Akron. The raid occurred because the police suspected that a large

scale, illegal dogfight was set to occur on the property. As a result of the raid, the police arrested

more than 45 individuals in connection with dogfighting. Jackson was one of the individuals

whom the police arrested.

        {¶3}     A grand jury indicted Jackson on one count of dogfighting, in violation of R.C.

959.16(A)(5). Jackson waived his right to a jury and went to trial along with two of his co-

defendants. At the conclusion of trial, the court found Jackson guilty of dogfighting. The court

sentenced him to three years of community control.
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       {¶4}    Jackson now appeals from his conviction and raises one assignment of error for

our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FOUND THE ACCUSED GUILTY, AS THE STATE FAILED TO PROPERLY
       IDENTIFY THE ACCUSED AT TRIAL AND THE STATE OFFERED NO
       EVIDENCE TO SUPPORT A FINDING THAT THE ACCUSED PAID TO BE
       PRESENT AT A DOGFIGHT.

       {¶5}    In his assignment of error, Jackson argues that his conviction is based on

insufficient evidence and, alternatively, is against the manifest weight of the evidence.

Specifically, he argues that the State failed to prove either identity or the fact that he knowingly

paid money or gave something of value to be present at a dogfight. We reject Jackson’s

assignment of error.

       {¶6}    “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The State’s evidence is sufficient if it allows the trier of

fact to reasonably conclude that the essential elements of the crime were proven beyond a

reasonable doubt. Id.
                                                 3


Identification

       {¶7}      The identity of a perpetrator must be proved by the State beyond a reasonable

doubt. State v. Flynn, 9th Dist. Medina No. 06CA0096-M, 2007-Ohio-6210, ¶ 12. Like any

other element of an offense, identity may be established through direct or circumstantial

evidence. Id., citing State v. Gorgan, 9th Dist. Medina No. 1824, 1990 WL 1771, *1 (Jan. 10,

1990). “A witness need not physically point out the defendant in the courtroom as long as there

is sufficient direct or circumstantial evidence proving that the defendant was the perpetrator.”

State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 19. Accord Akron v. Capanna, 9th Dist.

Summit No. 14104, 1989 WL 108785, *2 (Sept. 20, 1989), quoting State v. Scott, 3 Ohio App.2d

239, 244 (7th Dist.1965) (“‘* * * It is not necessary that the identification be made positively by

a witness, * * *. Lack of positiveness does not destroy the value of the identification, but goes to

the weight of the testimony.’”).

       {¶8}      Jackson argues that his conviction is based on insufficient evidence because the

State never successfully established the element of identification at trial. He argues that the

State’s first identification witness, Detective Mildred Morris, confused him with one of his co-

defendants at trial such that she was unable to offer a positive identification. He further argues

that the trial court sustained his objection when the State attempted to identify him through a

second witness, Detective Mark Hockman.

       {¶9}      Detective Morris testified that she was a member of the Akron Police

Department’s Crime Scene Unit and, on the night of the raid, she came on scene and

photographed multiple individuals who had been arrested. She identified three photographs,

Exhibits 5, 6, and 7, as pictures of three of the individuals that she photographed that evening.

There was much confusion, however, when the State attempted to use the photographs to have
                                                4


Detective Morris identify Jackson and his two co-defendants as three of the arrestees that she

photographed. Detective Morris changed her initial identification of the particular defendant

depicted in Exhibit 5 after the State asked her to look at the defendants again.1 When Jackson’s

counsel repeatedly drew attention to Detective Morris’ misidentification on cross-examination,

she testified that she had made a mistake because she could not clearly see all three co-

defendants when the State initially asked her to identify them.

        {¶10} Detective Hockman, a member of the Akron SWAT team, testified that he

primarily conducted surveillance on the evening of the raid, but also completed booking slips

and a report of investigation following the raid. He testified, however, that he did not personally

complete Jackson’s booking slip. Accordingly, when the prosecutor asked him to identify

Jackson as an individual who was booked at the scene, the court sustained Jackson’s objection to

that identification on the basis of hearsay.     Subsequently, the prosecutor asked Detective

Hockman whether he had included Jackson’s booking information and photograph in the report

of investigation that he completed after the raid. Detective Hockman confirmed that he had

reviewed Jackson’s booking information and photograph before including it in his report. He

testified that Jackson was the person he saw in the booking photograph and that Jackson was

present in the courtroom. Jackson did not object when the detective confirmed that he was the

man in the photograph, testified that he was present in the courtroom, and described his clothing

for the court.

        {¶11} The State here was not required to present the court with an in-court identification



1
  We would note that Detective Morris used each defendant’s physical location in the courtroom
and physical description when making her identifications. The State never asked for the record
to reflect the name of each individual defendant Detective Morris was identifying when she
relied upon Exhibits 5, 6, and 7 to make her identifications.
                                                  5


of Jackson so long as there was sufficient direct or circumstantial evidence in the record to

connect him with his dogfighting charge. See Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 19.

Even so, the State was able to elicit in-court identification testimony from Detective Hockman.

Although Detective Hockman did not interact with Jackson at the scene of the crime, he testified

that Jackson went through the booking process at the jail and that he had reviewed Jackson’s

booking information and photograph for purposes of drafting his report of investigation. He then

testified that Jackson was the man who he saw in the booking photograph. Any issue regarding

his ability to positively identify Jackson based on the information he reviewed went to the weight

of his identification rather than its admissibility. See Capanna, 1989 WL 108785, at *2, quoting

Scott, 3 Ohio App.2d at 244. Viewing the evidence in a light most favorable to the State, we

must conclude that it set forth evidence from which a rational trier of fact could have concluded

that it satisfied its burden to prove Jackson’s identity.    See Jenks, 61 Ohio St.3d at 273.

Jackson’s argument to the contrary lacks merit.

Knowingly Paid Money or Gave Anything of Value

       {¶12} R.C. 959.16(A)(5) provides that “[n]o person shall knowingly * * * [p]ay money

or give anything else of value in exchange for admission to or be present at a dogfight.” This

Court recently examined the foregoing statute and found it to be ambiguous. See State v. Taylor,

9th Dist. Summit No. 28091, 2016-Ohio-7953. We, therefore, conducted a statutory analysis and

determined that R.C. 959.16(A)(5)’s legislative history supports a disjunctive reading of the

statute. Id. at ¶ 12-15. We held that, to support a conviction under R.C. 959.16(A)(5), the State

may prove either that a person (1) knowingly paid money or gave something of value for

admission to a dogfight, or (2) knowingly was present at a dogfight. Id. at ¶ 15. “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a
                                               6


certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” Former R.C. 2901.22(B).

       {¶13} Jackson argues that his dogfighting conviction is based on insufficient evidence

because the State failed to set forth any evidence that he paid to be present at a dogfight. To

sustain a conviction, however, the State was not required to prove that he paid money or gave

something of value for admission to a dogfight. The State could prove either that he (1)

knowingly paid money or gave something of value for admission to a dogfight, or (2) knowingly

was present at a dogfight. Taylor at ¶ 15. Jackson has not set forth any argument regarding

whether he was knowingly present at a dogfight. See App.R. 16(A)(7). He has not argued that

there was insufficient evidence of his mens rea. Nor has he made any argument regarding

whether a dogfight, in fact, occurred at the subject property that evening.          This Court

acknowledges that Jackson did not have the benefit of State v. Taylor when drafting his brief. It

is not uncommon, however, for litigants to have to contend with changes in the law. Moreover,

Jackson was aware that the interpretation of the dogfighting statute was an issue of much debate

in the court below and would likely be litigated on appeal. In drafting his brief, there was

nothing to prevent him from arguing that the State also failed to prove that he was knowingly

present at a dogfight. Because he did not do so, this Court will not construct that argument on

his behalf. See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,

1998) (“If an argument exists that can support this assignment of error, it is not this [C]ourt’s

duty to root it out.”). See also State v. Webb, 9th Dist. Summit No. 27424, 2015-Ohio-2380, ¶ 6.

Jackson’s sufficiency argument lacks merit.

       {¶14} Jackson’s brief also includes a blanket statement that his conviction is against the

manifest weight of the evidence. He has not, however, challenged any of the evidence the State
                                                 7


set forth as “unreliable or lacking credibility.” State v. Smith, 9th Dist. Summit No. 27877,

2016-Ohio-7278, ¶ 16. “[S]ufficiency and manifest weight are two separate, legally distinct

arguments.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20.

This Court will not develop a manifest weight argument on Jackson’s behalf. See State v.

Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32. Jackson has not shown that this

is the exceptional case where the trier of fact lost its way in convicting him. See id. Thus, his

assignment of error is overruled.

                                                III.

       {¶15} Jackson’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                              DONNA J. CARR
                                              FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
