[Cite as State v. Stone, 2014-Ohio-4444.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                              :          APPEAL NO. C-140028
                                                       TRIAL NO. B-1300684
        Plaintiff-Appellee,                 :
                                                            O P I N I O N.
  vs.                                       :

LARRY STONE,                                :

      Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 8, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,


Michaela Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
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F ISCHER , Judge.

       {¶1}    Defendant-appellant Larry Stone appeals his convictions for six

counts of robbery, stemming from a series of robberies over a two-week period in

January 2013. Stone challenges the trial court’s denial of his motion to sever and

motion to suppress, the removal of a prospective juror for cause, the expert

testimony of a police officer, and the sufficiency and manifest weight of the evidence

adduced to support his convictions. Because we do not find merit in any of Stone’s

assignments of error, we affirm the judgment of the trial court.

                           Background Facts and Procedure

       {¶2}    The first of a series of robberies began on January 18, 2013, at

Thornton’s gas station on Colerain Avenue at 4:30 a.m. Stephanie Whitehead was

working at Thornton’s when a man entered the store, pulled out a gun, and

demanded money. Whitehead recognized the man as a previous customer who had

bought Black & Mild cigars. Whitehead complied with the man’s demand by opening

the cash register and giving him the cash before he fled.

       {¶3}    On January 21, 2013, at 6:15 p.m., a man wearing a hooded jacket

with a flame on the side entered the Fish Express on Harrison Avenue and

demanded cash from employee Dale Franklin. The man showed Franklin a gun.

When Franklin refused to give the man any money, the man took the entire cash

register and ran out the door.

       {¶4}    The day after the Fish Express robbery, on January 22, 2013, at 3:30

p.m., a man in a black, hooded jacket walked into the Family Dollar store on

Burlington Place and approached employee Larry Santana. Santana directed the

man to a product in the store, and the man then proceeded to the cash register.




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When Santana opened the cash register, Santana could see that the man had a gun.

The man lunged at the open cash register, grabbed the cash, and ran away.

       {¶5}    On January 24, 2013, a man in a black, hooded jacket walked into the

Sunoco gas station on Spring Grove Avenue at 9 p.m. and asked employee Leyumel

Feyissa for Black & Mild cigars. The man then displayed a gun and demanded cash

from the register. Feyissa gave the man the money in the register, and the man fled.

       {¶6}    On January 29, 2013, at 5:40 a.m., Cynthia Hartley was working at

the Shell gas station on Calhoun Street. Hartley’s fiancée, Amber Johnson, also

happened to be at the store during this time. A man walked in and asked Hartley for

Black & Mild cigars. The man showed Hartley a gun and demanded cash. Hartley

gave the man cash from the register, and he took off. Johnson saw a blue SUV speed

away from the station.

       {¶7}    The day after the Calhoun Street Shell station was robbed, on January

30, 2013, at 2:00 a.m., a man wearing a hooded coat with a black thermal shirt

underneath approached a pay window at the Shell gas station on Liberty Street. The

man asked employee Laquette Hill for Black & Mild cigars, and then displayed a gun

and demanded cash. Hill refused to comply with the man’s demands because the pay

window was made of bullet-proof glass. The man ran off.

       {¶8}    Police officers had little information regarding a suspect in these

robberies until Officer Kimberly Horning, who had investigated the Liberty Street

Shell station robbery, responded to a 911 call where a man had been threatening a

woman with a gun. When Horning arrived at the scene, the man identified himself

as Stone. Stone admitted that he had a BB gun, which he had thrown in a nearby

yard, and Stone stated that he had been arguing with the woman because she had

failed to return his blue Dodge Durango. Officer Horning recognized the black


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thermal shirt and the gold wedding band from the Shell station surveillance video.

Officer Horning arrested Stone for aggravated menacing and took him to the police

station.

       {¶9}      Officer Horning and others interviewed Stone following his

aggravated-menacing arrest. After reading Stone his Miranda rights, the officers

questioned Stone about the series of robberies. Stone denied involvement in the

robberies at first; however, according to Officer Horning, Stone later admitted to

using a BB gun in an attempt to rob the Liberty Street Shell station. According to

Officer Horning, Stone stated that he was addicted to crack cocaine, and Stone

offered to help police investigate drug dealers in exchange for case consideration.

       {¶10}     After his arrest, the police searched Stone’s home with the consent of

his wife. Police recovered a black bubble jacket and an orange thermal shirt, which

matched the clothing worn by the perpetrator in the Sunoco and Family Dollar

robberies, as seen on the surveillance videos, as well as a hooded jacket with a flame

on the side, which matched the jacket described in the Fish Express robbery. The

police also obtained the consent of Mary Engelman to search her home. Engleman’s

son is Stone’s friend. The police recovered an animal-figure coat, which matched the

description of the coat worn by the perpetrator in the robbery at the Calhoun Street

Shell station, and which can be seen from surveillance video of the Liberty Street

Shell station.

       {¶11}     The police also compiled a photo array containing Stone’s picture to

show to the eyewitnesses through a blind administrator.          Whitehead, Franklin,

Feyissa, and Johnson identified Stone as the perpetrator of the robberies at

Thornton’s, Fish Express, Sunoco, and the Calhoun Street Shell station. Santana




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identified Stone as the perpetrator of the Family Dollar robbery, but he could not

identify Stone with certainty. Hartley and Hill were unable to identify anyone.

       {¶12}   A Hamilton County grand jury indicted Stone in a 12-count

indictment for robbery, aggravated robbery, and having a weapon while under a

disability. Prior to trial, Stone moved to suppress the pretrial identifications made

by the witnesses and his statements to police. Stone also moved for separate trials

due to prejudicial joinder. The trial court denied all motions.

       {¶13}   At trial, the state presented the testimony of the witnesses to the

robberies. Whitehead, Franklin, Feyissa, Hartley, and Johnson identified Stone in

court as the person who had committed the robberies at Thornton’s, Fish Express,

Sunoco, and the Calhoun Street Shell station. Santana also identified Stone in court

as the robber at Family Dollar, but stated that he could not be 100 percent certain.

Hall could not identify Stone as the perpetrator of the Liberty Shell station robbery,

but she identified the animal-figure coat recovered from Engleman’s home as the

coat worn by the perpetrator.       The state also presented the testimony of the

responding and investigating officers, and the surveillance videos from all of the

robberies.

       {¶14}   Engleman also testified for the prosecution. Engleman stated that

Stone had been at her home on January 30, 2013, before police had arrived to

conduct a search. Stone had been wearing a coat with animal figures that day, which

he had left behind at her home. The police had taken the coat.

       {¶15}    Over Stone’s objection, the state presented expert testimony from

Officer Alice Stallcup. Officer Stallcup had been asked by the investigating officers to

compare the clothing seen in the surveillance videos of the Liberty and Calhoun

Street Shell stations to the animal-figure jacket recovered from Engleman’s home.


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Officer Stallcup testified that she worked in the “forensic video unit” for Cincinnati

police, and that part of her job entailed analyzing surveillance video of crime

suspects. Officer Stallcup testified that she had taken 400 hours of video training,

and that 40 of those hours pertained to “comparison work” for video.           Officer

Stallcup testified regarding the process she used to identify and compare unique

characteristics of the jackets, and ultimately determined that the jacket recovered

from Engleman’s home matched the jacket from the surveillance videos.

       {¶16}   The state also presented the testimony of Hermann Morris, who

claimed that Stone robbed Morris at gunpoint on January 18, 2013, while Morris

worked at Rent-A-Center. Stone had stolen Morris’s cell phone.

       {¶17}   Stone made a Crim.R. 29 motion as to all of the counts, but he

specifically argued that the state failed to prove that he had used a firearm in the

commission of the offenses. Stone argued that, at most, the state’s evidence showed

that Stone had used a BB gun, and not a firearm. The trial court granted Stone’s

Crim.R. 29 motion in part and dismissed the aggravated-robbery charges in Counts 7

and 9, and the weapons-under-disability charge in Count 11. The trial court also

dismissed Count 6, which related to a robbery of a BP gas station.

       {¶18}   In his defense, Stone took the stand and denied all involvement in the

robberies. He claimed that he had been with his family during the time of each

offense. Stone also testified that the blue Dodge Durango registered to his wife, and

linked to the crimes, had been in the repair shop until January 29, 2013. Stone

admitted that he had been convicted of robbery in 2007 and had been released from

prison in September 2012, and that he also had convictions for felony harassment,

trafficking in cocaine, misdemeanor obstruction of justice, and robbery in 1994.




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Stone also admitted that he had been to Engleman’s home where he had taken drugs

with Engleman and her son.

       {¶19}   The jury acquitted Stone of robbery in Counts 8 and 10, which related

to the robbery at Rent-A-Center. The jury found Stone guilty of Counts 1, 2, 3, 4, 5,

and 12, which related to the robberies at the Liberty and Calhoun Street Shell

stations, the Sunoco station, Family Dollar, Fish Express, and Thornton’s.

       {¶20}   The trial court sentenced Stone to four years in prison on each of the

six robbery counts, and imposed the sentences consecutively, for a total prison term

of 24 years. Stone now appeals.

                                     Motion to Sever

       {¶21}   In his first assignment of error, Stone argues that the trial court erred

by overruling his motion to sever the charges in the indictment for trial. Stone

argues that the evidence in relation to each robbery was not separate and distinct,

and that joinder of the offenses in a single trial prejudiced him. Stone argues that

trying the offenses together allowed the state to improperly portray him as a serial

robber in violation of Evid.R. 404(B).

       {¶22}   Crim.R. 8(A) permits joinder of offenses in a single indictment where

the offenses are “of the same or similar character, or are based on the same act or

transaction, or are based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan, or are part of a course of criminal

conduct.” Crim.R. 8(A). In each offense, Stone, while wearing a hood, walked up to

a store employee, displayed a gun, and demanded money from the cash register. In

four of the robberies, Stone asked the employee for a Black & Mild cigar. Thus, the

offenses in Stone’s indictment were “of the same or similar character,” so that joinder

was proper under Crim.R. 8(A).


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         {¶23}   Even if joinder is proper under Crim.R. 8(A), if joinder will prejudice

a defendant, Crim.R. 14 provides that a court must order separate trials. When a

defendant alleges prejudicial joinder, the state can rebut the defendant’s allegations

by demonstrating that the evidence related to each count is “simple and direct.”

State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189 (1st Dist.), quoting State v. Lott,

51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).

         {¶24}   The state negates Stone’s claim of prejudice by arguing that the

evidence pertaining to each robbery offense was simple and direct. We agree. Each

robbery occurred at a separate location and involved different victim-employees.

Although the crimes were similar in character, the jury could distinguish among each

robbery. The jury even acquitted Stone of the two counts related to the Rent-A-

Center robbery. Therefore, the trial court did not err in denying Stone’s motion to

sever.

         {¶25}   We overrule Stone’s first assignment of error.

                                Motions to Suppress

         {¶26}   In his second assignment of error, Stone argues that the trial court

erred by overruling his motion to suppress (1) the statements he made to police

following his arrest for aggravated menacing, and (2) the pretrial identifications

made by the robbery witnesses. We review a trial court’s findings of fact on a motion

to suppress to determine if the findings are supported by some competent, credible

evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

8. We then independently determine whether the facts satisfy the applicable legal

standard without deference to the trial court’s judgment. Id.

         {¶27}   Stone moved to suppress the statements he made to police at the

police station after his arrest for aggravated menacing. In particular, Stone argues


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that the trial court should have suppressed his statement to Officer Horning where

Stone implicated himself in the Liberty Street Shell station robbery. Stone contends

that the officers had continued to question him after he had invoked his right to

counsel. In denying the motion to suppress, the trial court determined that Stone

had invoked his right to counsel by stating, “I’m lawyering up,” during the police

questioning; however, Stone had then continued the conversation with police by his

own initiative.

       {¶28}      Under the Fifth Amendment, when an accused invokes his right to

counsel during a police officer’s custodial interrogation, the questioning must stop

unless the accused initiates further discussion with police and waives the earlier

request for counsel. State v. Kleingers, 1st Dist. Hamilton No. C-980764, 1999 Ohio

App. LEXIS 2889 (June 25, 1999), citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.

1880, 68 L.Ed.2d 378 (1981).

       {¶29}      The record demonstrates that Stone waived his Miranda rights at the

beginning of the police interview.      After the questioning turned away from the

aggravated-menacing charge to the robberies, Stone invoked his right to have an

attorney present, and the questioning stopped.         Stone then initiated further

discussions by talking to the officers about drug dealers that he knew and the

possibility of case consideration. Stone then requested to speak to Officer Horning

alone, and he admitted involvement in the Liberty Street Shell station robbery. We

believe that, under the facts of this case, the trial court properly determined Stone

had initiated conversations with police and had voluntarily, knowingly, and

intelligently waived the right to counsel under a totality of the circumstances. Thus,

the trial court properly denied Stone’s motion to suppress his statements.




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       {¶30}       In addition, Stone moved to suppress the witnesses’ pretrial

identifications.     A trial court must suppress a pretrial identification where the

identification procedure employed “ ‘was so impermissibly suggestive as to give rise

to a very substantial likelihood of irreparable misidentification.’ ” State v. Woods, 1st

Dist. Hamilton Nos. C-130413 and C-130414, 2014-Ohio-3892, quoting Neil v.

Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). A court employs a

two-part test to determine whether suppression is warranted: (1) Was the

identification procedure unnecessarily suggestive? (2) If so, was the identification

unreliable under the totality of the circumstances? See State v. Waddy, 63 Ohio

St.3d 424, 439, 588 N.E.2d 819 (1992).

       {¶31}       Stone argues that the photo-array procedure employed by the officers

was unduly suggestive, and, instead, the officers should have shown the witnesses

the photographs one at a time under the procedures provided for by R.C. 2933.83.

The remedy for an alleged violation of R.C. 2933.83 is cross-examination about the

police procedures at trial—not suppression of the witness’s identification.         R.C.

2933.83(C)(1); State v. Ruff, 1st Dist. Hamilton No. C-110250, 2012-Ohio-1910, ¶ 8.

       {¶32}       Stone also argues that a substantial likelihood of misidentification

occurred because the witnesses only saw the perpetrator for a matter of seconds

during the robberies, the perpetrator had a hood covering his head, and the

identifications occurred days or weeks after the incidents. Because Stone has failed

to demonstrate that the photo-array procedure was unduly suggestive, he cannot

meet the two-prong test under Neil v. Biggers, and this court need not reach the

reliability of the identifications. See Waddy at 439. Therefore, the trial court did not

err in overruling Stone’s motion to suppress the pretrial identifications.

       {¶33}       We overrule Stone’s second assignment of error.


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           Removing a Prospective Juror Based Upon a Felony Conviction

         {¶34}   In his third assignment of error, Stone argues that the trial court

erred by removing a prospective juror based upon that prospective juror’s prior

felony record.    Good cause exists to challenge a potential juror if that person’s

criminal conviction disqualifies the person to serve as a juror.              See R.C.

2313.17(B)(1); Crim.R. 24(C)(1). A trial court’s ruling on a challenge of a prospective

juror for cause will not be disturbed on appeal absent an abuse of discretion. State v.

Madrigal, 87 Ohio St.3d 378, 393, 721 N.E.2d 52 (2000).

         {¶35}   A convicted felon cannot serve as a juror unless the felon’s rights and

privileges have been restored through the following: (1) completion of a prison

sentence without placement on postrelease control; (2) final release by the adult

parole authority; (3) completion of any community-control sanctions.           See R.C.

2961.01 and 2967.16(C)(1).

         {¶36}   In this case, the record shows that Prospective Juror No. 3 had been

convicted of drug possession on two separate occasions. The prospective juror had

been sentenced to prison on the first conviction, and had been sentenced to three

years’ community control on the second conviction. The record shows that the

prospective juror had completed community-control sanctions to the satisfaction of

the court as to the most recent drug conviction, but nothing in the record indicated

that his rights had been restored on the first conviction. Therefore, we cannot say

that the trial court abused its discretion in dismissing Prospective Juror No. 3 for

cause.

         {¶37}   We overrule Stone’s third assignment of error.




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                                     Expert Testimony

       {¶38}   In his fourth assignment of error, Stone argues that the trial court

erroneously permitted Officer Stallcup to testify as an expert witness, and that the

error prejudiced Stone’s right to a fair and impartial trial. The trial court permitted

Officer Stallcup to offer an expert opinion that the jacket worn by the perpetrator at

the Liberty and Calhoun Street Shell station robberies, as seen from surveillance

videos, matched Stone’s jacket found by police in Engleman’s home.

       {¶39}   A witness may testify as an expert where (1) the testimony “relates to

matters beyond the knowledge or experience possessed by lay persons”; (2) the

witness is “qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony”; and (3) the

testimony is “based on reliable scientific, technical, or other specialized information.”

Evid.R. 702. We review a trial court’s determination under Evid.R. 702 as to the

admissibility of expert testimony for abuse of discretion. Woods, 1st Dist. Hamilton

Nos. C-130413 and C-130414, 2014-Ohio-3892, at ¶ 44.

       {¶40}   We need not reach whether Officer Stallcup was properly permitted to

testify as an expert under Evid.R. 702, because, even if the trial court erred in

permitting Officer Stallcup to testify as an expert, such error was harmless beyond a

reasonable doubt where Officer Stallcup’s testimony was cumulative of other

evidence. See State v. Brooks, 5th Dist. Richland No. 2011-CA-59, 2012-Ohio-1725, ¶

42. As to the Liberty Street Shell station robbery, Stone admitted to Officer Horning

that he had been involved, and the eyewitness, Hall, identified the animal-figure coat

recovered from Engleman’s home as the coat worn by the perpetrator. As to the

Calhoun Street Shell station robbery, one of the eyewitnesses, Johnson, identified




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Stone as the perpetrator from a photo array and identified Stone’s wife’s vehicle as

the SUV that she had seen speeding away after the incident.

       {¶41}   We overrule Stone’s fourth assignment of error.

                   Sufficiency and Manifest Weight of the Evidence

       {¶42}   In his fifth assignment of error, Stone argues that the evidence

adduced to support his convictions was insufficient, and that his convictions were

against the manifest weight of the evidence. Stone contends that the state did not

prove his identity as the perpetrator beyond a reasonable doubt.

       {¶43}   In reviewing a record for sufficiency, we must determine whether,

after viewing the evidence in the light most favorable to the state, any rational trier of

fact could have found the essential elements of the offense proved beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). In

reviewing a challenge to the weight of the evidence, this court must review the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

the witnesses, and determine whether in resolving conflicts in the evidence, the trier

of fact clearly lost its way and created a manifest miscarriage of justice such that the

conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶44}   As to Stone’s identity, in four of the six robberies, eyewitnesses

identified Stone from a photo array and identified him in court. The perpetrator

wore distinctive clothing that matched the clothing recovered from Stone’s and

Engleman’s homes.      Stone admitted his involvement in the Liberty Street Shell

station robbery. Stone presented an alibi to the jury, claiming that he had been with

his family during each of the offenses; however, none of his family members or

anyone else testified in his defense. Therefore, Stone’s argument that his convictions


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were against the sufficiency and manifest weight of the evidence because the state

failed to prove Stone’s identity as the perpetrator lacks merit. We overrule Stone’s

fifth assignment of error.

       {¶45}   The judgment of the trial court is affirmed.


                                                                     Judgment affirmed.



DINKELACKER, P.J., and DEWINE, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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