[Cite as State v. Brothers, 2014-Ohio-3132.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 100163 and 100164




                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                    DEVIN BROTHERS

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                           Case Nos. CR-12-564362 and CR-12-561089

        BEFORE:           Jones, P.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED: July 17, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mahmoud Awadalla
        Lindsay Raskin
        Margaret A. Troia
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant Devin Brothers appeals his convictions in Case No.

CR-561089 as it relates to one of the victims, and his convictions in Case No.

CR-564362, which relate to a single victim. We affirm.

                                      I.   Procedural History

       {¶2} In April 2012, Brothers was indicted in Case No. CR-561089. The victim,

relative to this appeal, was M.M.1 In regard to M.M., Brothers was charged with two

counts of rape by force or threat of force, both with one- and three-year firearm and

sexually violent predator specifications; aggravated robbery with one- and three-year

firearm specifications; and two counts of kidnapping with one- and three-year firearm,

sexual motivation, and sexually violent predator specifications.

       {¶3} In July 2012, Brothers was indicted in Case No. CR-564362. The victim in

that case was A.B.     Brothers was charged with rape by force or threat of force with one-

and three-year firearm and sexually violent predator specifications; three counts of

kidnapping with one- and three-year firearm, sexual motivation, and sexually violent

predator specifications; aggravated robbery with one- and three-year firearm

specifications; theft; and petty theft.

       {¶4} The cases were consolidated and proceeded to a jury trial with the exception

1
 There were three other victims listed in the case. Brothers was acquitted of the charges relative to
one victim (Counts 1 through 4), found guilty of the charge, menacing by stalking (Count 10), relative
to the second victim, J.R., and guilty of the charges, aggravated robbery, kidnapping, robbery, and
aggravated menacing (Counts 11 through 14), relative to the third victim, B.W. We will discuss the
facts relative to the second and third victim, because they provide additional background of the case.
of the sexually violent predator specifications that were tried to the bench.   In Case No.

CR-561089, the jury returned a guilty verdict on all the crimes committed against M.M.

In Case No. CR-564362, the jury found Brothers guilty of all the crimes committed

against A.B. The trial court found Brothers guilty of all the sexually violent predator

specifications.

       {¶5} Several of the charges in each of the cases merged for the purposes of

sentencing and the state elected which counts it wished the trial court to sentence on; the

trial court also merged the gun specifications.       The court sentenced Brothers to an

aggregate 45 years-to-life sentence, which included life sentences on the rapes and

consecutive sentences on some of the underlying counts.

                                        II. Facts

October 23, 2011: Victim A.B.

       {¶6} A.B. testified that she was raped in the early morning as she was walking to a

bus stop to go to work. As she was walking, a man approached her from behind and

started talking sexually to her. A.B. started walking faster in an attempt to get away

from him, but was unsuccessful. The man grabbed her, pointed a gun to her head, and

pulled her behind an abandoned house. A.B. testified that she could see the outline of

the gun and feel the metal on the back of her head.

       {¶7} After the man got A.B. behind the house, he vaginally raped her while he

threatened that if she screamed he would kill her.    A.B. testified that the man ejaculated

on the sidewalk.   After he raped her, he stole her bank card and iPod.     Prior to leaving
the scene, the man demanded that A.B. remain there quietly until she counted to 100, and

he threatened that if he heard her, he would kill her.

       {¶8} After the attack, A.B. made her way to a nearby gas station, where the police

were called.    Upon arrival of the police, A.B. identified the location where the

perpetrator had ejaculated.     Law enforcement collected evidence from the area for

testing. A.B. was transported to the hospital, where a sexual assault examination was

performed and evidence, including vaginal cavity, anal cavity, and buttocks swabs, were

collected.

       {¶9} Law enforcement compiled a photo array, which included Brothers’ photo.

A.B. selected another individual from the array and indicated at that time that she was

“very sure” of her identification.   In court, however, she stated that she was not able to

identify the man who had raped her.

       {¶10} Christopher Smith, a forensic scientist for the Bureau of Criminal

Identification (“BCI”), testified as an expert witness in DNA analysis.     Smith testified

that semen was present on both the vaginal and anal swabs taken from A.B.         Samples

had also been taken from Brothers and they were tested against A.B.’s samples.       Three

tests were conducted and Smith testified as to their results.

       Test 1

       The proportion of the population that cannot be excluded as possible
       contributors to the mixture of DNA profiles in the non-sperm fractions of
       the skin stain swabs buttocks * * * is 1 in 551,600 unrelated individuals.

       Test 2
       The proportion of the population that cannot be excluded as possible
       contributors to the mixture of DNA profiles in the sperm fraction of this
       skin stain swabs, buttocks lower * * * is 1 in 2,677,000 unrelated
       individuals.

       Test 3

       The expected frequency of occurrence in the DNA profile on the sperm
       fraction of the swab of the stain on the ground * * * is 1 in 6 quintillion 609
       quadrillion unrelated individuals.

       {¶11} Based on the testing, Smith opined as follows:

       We were able to conclude that Devin Brothers cannot be excluded as the
       source of the semen from the swab from the stain on the ground and he
       cannot be excluded as a contributor to the DNA on the skin stain swabs
       from the buttocks or the skin stain swabs from the lower buttocks * * *.

       It would indicate that it would be highly unlikely that the DNA profile from
       the stain on the ground would be from another individual that is present on
       the planet at this time. It would be — for the skin stain swabs, it would be
       somewhat unlikely that it would not be his DNA. In my expert opinion, I
       would include him as a contributor to the DNA in the samples and the
       statistical analysis gives weight to that inclusion.

       {¶12} On this testimony, Brothers was convicted of rape, three counts of

kidnapping, aggravated robbery, theft, and petty theft relative to A.B.



November 3, 2011: Victim M.M.

       {¶13} M.M. testified that she was walking to school on the morning of November

3, when she saw Brothers walking with his arm around a girl. Shortly thereafter, M.M.

saw Brothers alone; she made eye contact with him.         As she continued walking, she

heard someone behind her, turned around, and saw that it was Brothers. M.M. testified

that she started walking faster, but Brothers caught up to her, put a gun to her neck and
demanded her money. Brothers then dragged her behind an abandoned house, and took

her money out of her pockets and her iPod from her bookbag.      He threw the victim to the

ground, put a hat over her head, and raped her vaginally and anally. He threatened to kill

her when she attempted to escape.      When he had finished, Brothers grabbed his hat and

ran.

       {¶14} M.M. went to school, where she reported the rape to school authorities.

She was taken to the hospital and a sexual assault examination was performed.       Brenda

Gerardi, from BCI, testified about the results of M.M.’s rape kit testing. Regarding the

swabs in comparison with Brothers’ sample, she testified as follows:

       Devin Brothers cannot be excluded as the source of the semen on the anal
       swabs. Based on national database provided by the Federal Bureau of
       Investigation, the expected frequency of occurrence of the DNA profile
       from the sperm fraction of the anal swabs not attributed to [M.M.] is 1 in 1
       quintillion 95 quadrillion unrelated individuals.

       {¶15} Law enforcement presented a photo array to M.M.; she identified Brothers

as her raper, to a “one hundred percent” of certainty.   M.M. testified that she had several

opportunities to see Brothers’ face both leading up to and during the attack. She also

identified Brothers in court as her attacker.

       {¶16} On this testimony, Brothers was convicted of two counts of rape, aggravated

robbery, and two counts of kidnapping relative to M.M.

November 7, 2011: B.W.

       {¶17} B.W. testified that early in the morning of November 7, as she walked to

school, she was approached by Brothers.         She had recognized him as the man who,
several weeks prior, walked behind and “followed” her as she had walked to school.       On

November 7, Brothers approached her from behind and attempted to speak to her.           She

kept walking, but would turn around to see exactly where he was.

       {¶18} At one point, Brothers grabbed her hood and forced her into a yard behind

an abandoned house.      Brothers had a beer bottle in one hand and he told B.W. that if she

said anything he was going to “crack” her with it. As he was dragging her, Brothers

asked her if she “had anything,” to which B.W. replied that she only had a dollar.

       {¶19} The attack ended when a woman on a porch saw what was occurring and

yelled out at Brothers to let B.W. go. Brothers shaped his hand like he had a gun, raised

that arm at the woman, made a shooting motion, and then ran off.

       {¶20} After the attack, B.W. called her mother and talked to her as she made her

way back home.         B.W. told her mother that her attacker looked similar to her

stepbrother.    After hearing the description, B.W.’s brother left on his bicycle to look for

the attacker.   The brother encountered Brothers nearby, and finding him to fit his sister’s

description, approached him.     A physical confrontation between the two ensued.      After

the confrontation, Brothers ran to a house and entered it.      The brother, who followed,

later identified the house to the police.     The brother also identified Brothers from a

photo array.

       {¶21} On this testimony, Brothers was convicted of aggravated robbery,

kidnapping, robbery, and aggravated menacing relative to B.W.

October 17 to November 3, 2011: Victim J.R.
          {¶22} J.R. testified that during the above-referenced time frame, she was stalked

by Brothers in the general area where the other attacks occurred as she would walk to

school. She testified that Brothers would approach her from behind, talk about sex, and

try to get her to go with him behind abandoned homes. J.R. would repeatedly tell

Brothers to leave her alone, but he persisted.    She even several times changed the route

she would walk to school, but would still encounter Brothers. J.R. identified Brothers in

court as her stalker.

          {¶23} On this testimony, Brothers was convicted of menacing by stalking relative

to J.R.

Apprehension of Brothers

          {¶24} Based on the victims’ descriptions of their attacker, detectives assigned to

the case began searching in the area where all the crimes occurred for the suspect.     On

the morning of November 10, 2011, a detective observed a male matching the

descriptions of the suspect walking behind a female.           As the detective drove her

unmarked car down the street where the suspect was, the suspect fled.             The man,

Brothers, was shortly thereafter apprehended.       A box cutter was recovered from his

person.

Brothers’ Testimony

          {¶25} According to Brothers, his DNA that was found on the ground in A.B.’s

case was because he had consensual sex with another female in that location the night

before after he had been at a party. He testified that “if I had knew [sic] it would have
been a crime scene, I would have picked it up and cleaned it up.”      He further testified

that he did not believe his DNA was really on the victim. Brothers was unable to provide

the name, age, phone number, or address of his alleged consensual partner.        Brothers

was also unable to provide the exact location of the party where he claimed to have been.

      {¶26} In regard to the presence of his DNA on M.M., Brothers testified that the

two had had consensual sex. According to Brothers, it was M.M. who had actually

pursued him. He testified that he went behind the abandoned house to urinate and M.M.

followed him.   On cross-examination, however, Brothers described that he “caught her

from behind.”

                               III. Assignments of Error

      I. Because the evidence was insufficient to prove that Mr. Brothers
      committed the offenses charged in Case 564362, the convictions violated
      his rights to fair trial and due process as protected by the Fifth, Sixth, and
      Fourteenth Amendments to the U.S. Constitution.

      II. Mr. Brothers’s conviction of the offenses charged in Case [5]64362 is
      not supported by the manifest weight of the evidence.

      III. Mr. Brothers’s Sixth and Fourteenth Amendment rights to fair trial and
      to confront witnesses against him and his due process right to have the state
      obey its own evidentiary rules were violated when the state presented, over
      objection and without adequate foundation, testimony indicating DNA
      frequency rates derived from population studies by and programming
      developed and maintained by the FBI without presenting any witness to
      testify about how those studies were conducted and why they and the
      related database are valid and about how the programming was developed
      and why it is reliable and accurate.

                                 IV.   Law and Analysis

Sufficiency of the Evidence
       {¶27} For his first assigned error, Brothers contends that the state failed to present

sufficient evidence of the crimes against A.B. because she was unable to identify him.

And according to Brothers, his DNA evidence recovered from the scene of the crime

“provided no evidence that he raped” A.B.      Thus, Brothers contends that the trial court

erred in denying his Crim.R. 29 motions for acquittal. We disagree.

       {¶28} A Crim.R. 29(A) motion challenges the sufficiency of the evidence.       When

reviewing a challenge of the sufficiency of the evidence, an appellate court examines the

evidence admitted at trial and determines whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.        “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.” Id. A sufficiency challenge requires us to review

the record to determine whether the state presented evidence on each of the elements of

the offense.   State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

 A reviewing court is not to assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

       {¶29} As Brothers aptly notes, in-court identification of the defendant by a victim

of crime is not essential to proving that the defendant actually committed the crime.

This court addressed that point in Cleveland Metroparks v. Lawrence, 8th Dist. Cuyahoga
No. 98085, 2012-Ohio-5729, stating the following: “The failure to conduct an in-court

identification is not fatal to the state’s case when the circumstances of the trial indicate

that the accused is indeed the person about whom the witnesses are testifying.” Id. at ¶

14, citing State v. Melton, 8th Dist. Cuyahoga No. 87186, 2006-Ohio-5610.

       {¶30} Although A.B. was not able to identify Brothers as her attacker, the state

presented other evidence that sufficiently identified Brothers as A.B.’s attacker.

Brothers’ DNA was found at the scene where A.B. was attacked.          Brothers’ explanation

for the presence of his DNA being at the scene, that is, that he had had a sexual encounter

there the evening before, was an issue of credibility for the jury to determine.           On

sufficiency review, we do not address matters of credibility.         Rather, we review to

determine if the state presented evidence that, if believed, would support the conviction.

The presence of Brothers’ DNA at the crime scene, coupled with A.B.’s testimony and

the testimony of the other state witnesses, was sufficient evidence to support the

conviction.

       {¶31} In light of the above, the first assignment of error is overruled.

Manifest Weight of the Evidence

       {¶32} In his second assigned error, Brothers challenges the conviction rendered

against him for the crimes relative to A.B. as being against the weight of the evidence.

       {¶33} A manifest weight challenge questions whether the state met its burden of

persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶

13, citing Thompkins, 78 Ohio St.3d 380 at 390, 678 N.E.2d 541. When a conviction is
challenged on appeal as being against the manifest weight of the evidence, the reviewing

court must examine the entire record, weigh the evidence and all reasonable inferences,

consider the witnesses’s credibility, 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. Thompkins at 387.

       {¶34} In considering a manifest weight challenge, this court must remain mindful

that the credibility of the witnesses and the weight to be given the evidence are primarily

for the trier of fact to assess.     State v. Bradley, 8th Dist. Cuyahoga No. 97333,

2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus. The trier of fact is in the best position to take into

account inconsistencies, along with the witnesses’s manner, demeanor, gestures, and

voice inflections, in determining whether the proffered testimony is credible. State v.

Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26; see also State v. Lilliard,

8th Dist. Cuyahoga Nos. 99382, 99383, and 99385, 2013-Ohio-4906, ¶ 93 (In considering

the credibility of witnesses on a manifest weight challenge, an appellate court is “guided

by the presumption” that the jury, or the trial court in a bench trial, is “‘best able to view

the witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.’”), quoting Seasons

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Reversal on

manifest weight grounds is reserved for the “‘exceptional case in which the evidence

weighs heavily against the conviction.’” Thompkins at id., quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶35} Brothers contends that the presence of his DNA at the scene of A.B.’s rape

“provided compelling evidence that [he] ejaculated at that spot, [but] provided no

evidence that he raped [A.B.].”    We disagree.

       {¶36} The presence of Brothers’ DNA at the scene coupled with the presence of

his DNA on A.B.’s person, and A.B.’s testimony provided compelling evidence to

support the conviction. We are not persuaded by Brothers’ contention that the DNA

found on the ground was unreliable because there were three samples that were collected,

but only one was tested.    Brothers motioned for an expert at the state’s expense and the

trial court granted his motion. His expert could have had the other samples tested.

Further, his expert did not refute the sample that was tested.

       {¶37} As already mentioned, Brothers contended that he had had a sexual

encounter at the scene the night before A.B. was raped.          However, he could not provide

any corroborating evidence, such as the name, address, or phone number of the female, or

even the name or address of the person whose party he alleged he had attended.            The

jury obviously did not believe Brothers. On this record, we find nothing incredible

about the jury’s decision and, therefore, will not disturb it.

       {¶38} Moreover, the testimony of the other state’s witnesses provided compelling

evidence against Brothers in that it showed his modus operandi in committing his crimes.

       {¶39} In light of the above, the second assignment of error is overruled.

Admissibility of DNA Evidence
       {¶40} In his third assignment of error, Brothers contends that the DNA testimony,

which was presented through the BCI forensic examiners Christopher Smith and Brenda

Gerardi, was improperly admitted.          Smith and Gerardi testified about population

frequency statistics.   The data used and the database maintained for calculating those

statistics, as well as the software used in obtaining the statistics, was developed and

maintained by the FBI. No one from the FBI testified at trial. Brothers contends that

his right to confrontation was therefore violated. We disagree.

       {¶41} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the United States Supreme Court held that testimonial statements of a witness

who does not appear at trial may not be admitted or used against a criminal defendant

unless the declarant is unavailable to testify, and the defendant has had a prior opportunity

for cross-examination.       Thus, Crawford involved the admissibility under the

Confrontation Clause of recorded testimonial statements of a person who did not testify at

the trial.   The holding in Crawford was that such statements, regardless of their

reliability, are not admissible unless the defendant was able to cross-examine their maker.

       {¶42} In Crawford, the United States Supreme Court stated that business records,

which are analogous to public records are “by their nature * * * not testimonial” and not

subject to the requirements of the Confrontation Clause. Id. at 56.

       To its credit, the Court’s analysis of “testimony” excludes at least some
       hearsay exceptions, such as business records and official records. * * *
       To hold otherwise would require numerous additional witnesses without
       any apparent gain in the truth-seeking process.

Id. at 76 (Rehnquist, C.J., concurring).
      {¶43} In State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-6840, 879 N.E.2d 745,

the Ohio Supreme Court addressed Crawford in examining whether the admission of

DNA reports without the testimony of the analyst who prepared the report violated the

Confrontation Clause.    The court found the essential inquiry under Crawford was

whether a particular statement was testimonial or non-testimonial.        Id. at ¶ 41.   It

determined that the reports of DNA analysis prepared by an analyst at BCI were business

records that fell under the hearsay exception of Evid.R. 803(6) and, therefore, were not

testimonial under Crawford.

      {¶44} DNA samples have also been held to be non-testimonial evidence with

respect to the Fifth Amendment privilege against self-incrimination.      For example, a

DNA sample obtained from a state prisoner, pursuant to an Ohio statute requiring the

collection of DNA specimens from convicted felons, was physical, rather than testimonial

evidence, and thus did not implicate the prisoner’s Fifth Amendment privilege against

self-incrimination. Wilson v. Collins, 517 F.3d 421, 431 (6th Cir.2008). The Sixth

Circuit reasoned that a DNA sample was analogous to a photograph or fingerprint

identifying an individual. Id., citing United States v. Zimmerman, 514 F.3d 851, 853

(9th Cir.2007); see also Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 16

L.Ed.2d 908 (1966) (holding that “blood test evidence, although an incriminating product

of compulsion, [is] neither * * * testimony nor evidence relating to some communicative

act or writing” and is therefore not protected by the Fifth Amendment).

      {¶45} This court addressed the issue of the use of statistical evidence not prepared
by the testifying witness in State v. Bolton, 8th Dist. Cuyahoga No. 96385,

2012-Ohio-169. This court held as follows:

       Many Ohio jurisdictions, including this one, have allowed expert opinion
       testimony under Evid.R. 703, even though the expert’s opinion was based in
       part on statistics published by other sources. State v. Ervin, 8th Dist.
       [Cuyahoga] No. 80473, 2002-Ohio-4093, 2002 WL 1824977; State v.
       Flowers, 10th Dist. [Franklin] No. 99AP-530, 2000 Ohio App. LEXIS
       1933, 2000 WL 552197 (May 4, 2000); State v. Powell, 2d Dist.
       [Montgomery] No. 18095, 2000 Ohio App. LEXIS 5829, 2000 WL
       1838716 (Dec. 15, 2000); State v. Stokes, 8th Dist. [Cuyahoga] No. 71654,
       1997 Ohio App. LEXIS 5530, 1997 WL 764815 (Dec. 11, 1997); State v.
       Drain, 10th Dist. [Franklin] No. 95APA03-351, 1995 Ohio App. LEXIS
       5899, 1995 WL 765169 (Dec. 29, 1995). Furthermore, courts have
       addressed and rejected appellant’s argument raised herein, holding that the
       statistical DNA evidence derived from the FBI database is not “testimonial”
       under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
       177 (2004). Powell, supra; State v. Bruce, 5th Dist. [Fairfield] No.
       2006-CA-45, 2008-Ohio-5709, 2008 WL 4801648; State v. Breeze, 10th
       Dist. [Franklin] No. 92AP-258, 1992 Ohio App. LEXIS 6147, 1992 WL
       356269 (Nov. 24, 1992). Accordingly, we find no error in the trial court’s
       acceptance of [the] expert testimony and reliance on the FBI database.

Id. at ¶ 64.
        {¶46} In light of the above-mentioned case law, Smith and Gerardi properly

testified as to the DNA evidence in this case.   The third assignment of error is, therefore,

overruled.

       {¶47} 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
