        [Cite as State v. Lee, 2017-Ohio-7377.]

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




STATE OF OHIO,                                    :   APPEAL NO. C-160294
                                                      TRIAL NO. B-1406069
    Plaintiff-Appellee,                           :

  vs.                                             :     O P I N I O N.

LAMONT FERNANDO LEE,                              :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 30, 2017



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

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Following a jury trial, defendant-appellant Lamont Fernando Lee was

found guilty of aggravated robbery and robbery. The trial court merged the robbery

charge with the aggravated-robbery charge and sentenced Lee to eight years. This

appeal followed.

                                I.     Background Facts


       {¶2}   Jeremiah Anderson and his wife responded to a Craigslist ad selling

two iPhones. They agreed to meet the seller at an address on Bluelark Drive in

Colerain. Anderson drove with his family to the address and got out of his truck. His

stepdaughter, T.T., watched from the back seat on the driver’s side. Two young men

approached Anderson and one pulled out a gun. He shoved the gun into Anderson’s

groin area and demanded money. Anderson gave them the cash he had brought for

the iPhones, and then the two assailants ran into a wooded area behind a nearby

house. Anderson instructed his wife to dial 911. He and his family met the police to

complete a police report. Then, Anderson started driving around the neighborhood

slowly, and T.T. saw one of the robbers wearing different clothing in a nearby park.

Anderson drove by the park again to make sure and called the police. Anderson met

the police at a nearby store.

       {¶3}   The police brought two suspects to the store separately. Anderson

stated that the first suspect was not involved. Both Anderson and T.T. identified the

second suspect as one of the robbers. That suspect was Lamont Lee. Officer Eric

Renner read Lee his Miranda rights and collected two cell phones in Lee’s

possession. Officer Renner gave those phones to Detective David Hubbard.



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       {¶4}    Detective Hubbard interviewed Lee later that day. After obtaining a

search warrant for the contents, Detective Hubbard recovered photos of a green

iPhone 5C from Lee’s phone. He testified that the scratches on the phone in the

photo on Lee’s phone matched the phone depicted in the Craigslist ad, except for a

small mark on the photo that did not appear on the Craigslist phone. Detective

Hubbard also found a photo of an unidentified man holding a handgun. Anderson

testified that this gun looked similar to the gun used in the robbery. Additionally,

Detective Hubbard located a note that had been saved approximately two hours

before the robbery. The note appeared to be rap lyrics about robbery and needing

money.

       {¶5}    Lee was indicted in October 2014 for a violation of R.C. 2911.01(A)(1),

aggravated robbery, with gun specifications, and for a violation of R.C.

2911.02(A)(2), robbery. Lee’s case proceeded to a jury trial in October 2015. At the

conclusion of the trial, the jury found Lee guilty of robbery and aggravated robbery,

but found he did not have or use a firearm in the commission of the aggravated

robbery. The court merged the robbery count with the aggravated-robbery count and

imposed an eight-year prison sentence. Lee now appeals.

         II.     The Prosecutor’s Use of Irrelevant and Prejudicial Evidence


       {¶6}    In his first assignment of error, Lee argues that the trial court

improperly admitted a photo and a note from Lee’s phone. The photo contained an

unidentified individual holding a gun taken on an unidentified date. The note was

typed into the “Notes” section of the phone about two hours before Anderson was




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robbed and included statements about trying to get money and looking in someone’s

pockets or wallet.

       {¶7}   Lee first argues that the photograph and rap lyrics lacked probative

value. He claims that, even though the photograph was found in his phone, there

was no evidence that he had taken the photograph, the person in the photograph was

never identified, the gun was never identified as the weapon used in the robbery, and

the detective had admitted that the rap song was not evidence of Lee’s guilt in the

robbery.   Lee further claims any probative value this evidence carried was

substantially outweighed by the risk of unfair prejudice and inadmissible “other acts”

evidence. See Evid.R. 403 and 404(B).

       {¶8}   “The admission or exclusion of relevant evidence rests within the

sound discretion of the trial judge.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-

2577, 971 N.E.2d 865, ¶ 108. An appellate court should not disturb a trial court’s

decision to admit evidence unless it has clearly abused its discretion and the

defendant has been materially prejudiced as a result. State v. Obermiller, 147 Ohio

St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61, quoting State v. Issa, 93 Ohio St.3d

49, 64, 752 N.E.2d 904 (2001). An abuse of discretion constitutes more than a mere

error of law or judgment; instead, it means that a trial court's decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

       {¶9}   Relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Evid.R. 401. Here,

the assistant prosecuting attorney asked whether the gun in the photo looked similar


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to the gun used in the robbery, and Anderson said it did.        Immediately before

entering that photo, the assistant prosecuting attorney admitted a different photo

depicting Lee’s accomplice, Caronta Lackey, holding a gun. Anderson testified that

that photo appeared to have been taken in the same location as the robbery and

included the same gun. The assistant prosecuting attorney then used that testimony

to highlight the fact that it was Lee, not Lackey, who had actually used the gun

during the robbery. Although the photo of the unidentified man may have had

limited probative value, in conjunction with the first photo and witness testimony, it

tended to lend credibility to the assistant prosecuting attorney’s theory that Lee had

access to a gun and possessed a gun during the robbery.

       {¶10} Detective Hubbard testified that Lee’s phone contained a note

seemingly containing rap lyrics, which he read aloud during direct examination. The

note included several references to robbery and needing to get money. Detective

Hubbard stated that the note was dated October 25, 2014, at 3:45 p.m.           After

Detective Hubbard read the note to the jury, the assistant prosecuting attorney

clarified that the note had been created within two hours before Anderson was

robbed. The subject of the note and its temporal proximity to Anderson’s robbery is

sufficient to demonstrate its probative value.

       {¶11} Lee next argues that the photo and note were unfairly prejudicial.

Relevant evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Evid.R. 403. The trial court is vested with broad discretion when weighing evidence

under Evid.R. 403. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d

596, ¶ 87.    “A reviewing court will not interfere absent a clear abuse of that


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discretion.” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶

171.

       {¶12} “Logically, all evidence presented by a prosecutor is prejudicial, but

not all evidence unfairly prejudices a defendant.” State v. Wright, 48 Ohio St.3d 5,

8, 548 N.E.2d 923 (1990). Relevant evidence may be excluded only when the risk of

unfair prejudice, confusion of the issues, or misleading the jury substantially

outweighs its probative value. Evid.R. 403. Lee argues that the only purpose the

photo could have had was to demonstrate that Lee may have associated with

individuals who possessed guns and to imply that Lee committed this robbery

because he had a photo of someone with a gun on his phone. But at no point did the

assistant prosecuting attorney suggest that that is what the photo demonstrates. The

photo was found on Lee’s personal cellphone, and Anderson stated that the gun

looked similar to the gun Lee had used to rob him. Lee contends that the note was

prejudicial because it used the word “rob,” which the assistant prosecuting attorney

used to show that Lee wanted to commit a robbery that day. However, the very

nature of the prejudice of which Lee complains–his potential motive–is the same as

its probative value.

       {¶13} After reviewing the disputed evidence and the record, we cannot say

that the trial court’s decision to admit the photo and note was arbitrary,

unreasonable, or unconscionable.

       {¶14} Lee also asserts that the photo and note constitute improper “other

acts” evidence. See Evid.R. 404(B). However, he did not object to the note at all and

thus did not object to the photo on that basis. He has therefore forfeited all but plain

error on appeal. See Crim.R. 52(B); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-


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                     OHIO FIRST DISTRICT COURT OF APPEALS



2459, 38 N.E.3d 860, ¶ 22-23. Lee does not explain how this evidence constitutes

impermissible “other acts” evidence. He has therefore failed to meet his burden to

demonstrate error, let alone plain error.

       {¶15} We overrule the first assignment of error.

                            III.    Prosecutorial Misconduct


       {¶16} In his second assignment of error, Lee contends that the assistant

prosecuting attorney engaged in misconduct when he (1) improperly introduced the

photograph and note discussed above, (2) led every witness—to the point of

testifying himself—and characterized one piece of evidence as “damning” during his

direct examination of the detective, and (3) accused defense counsel of coaching

witnesses and made other improper statements during closing. Lee admits that his

counsel did not object to this alleged misconduct. Therefore, he must demonstrate

plain error. See State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d

1023, ¶ 109. To constitute plain error, an error must be an obvious defect that would

clearly, but for the error, have resulted in a different outcome of the trial. State v.

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 177, quoting State v.

Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).

       {¶17} To reverse a conviction based on prosecutorial misconduct, the alleged

misconduct must have deprived the defendant of a fair trial. State v. Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 140; State v. Neeley, 143 Ohio

App.3d 606, 621, 758 N.E.2d 745 (1st Dist.2001). This analysis turns on whether the

trial was fair, not the prosecutor’s culpability. Neeley at 621. Thus, the impact of the

alleged misconduct must be considered in the context of the whole trial. Id. Further,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



a prosecutor has wide latitude in summation to describe what the evidence shows

and the reasonable inferences that may be drawn from such evidence. Id.

       {¶18} We have already determined that the trial court did not abuse its

discretion in admitting the photograph and note.        Therefore, there can be no

prosecutorial misconduct in introducing those pieces of evidence.

       {¶19} Lee also argues that the assistant prosecuting attorney committed

misconduct when he characterized a piece of evidence as “damning” during a direct

examination.    However, Lee did not object and has not explained how he was

prejudiced. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d

508, ¶ 264. As a result, he has not demonstrated that the outcome of the trial would

have been different but for the use of that term.

       {¶20} Lee further contends he was deprived of a fair trial because the

assistant prosecuting attorney asked leading questions during the direct

examinations of all four state witnesses. Evid.R. 611(C) states that “[l]eading

questions should not be used on the direct examination of a witness except as may be

necessary to develop the witness’ testimony.” The trial court has discretion to permit

leading questions on direct examination. Diar, 120 Ohio St.3d 460, 2008-Ohio-

6266, 900 N.E.2d 565, at ¶ 149. However, a prosecutor commits prosecutorial

misconduct when leading questions pervade the entire trial in the face of a sustained

objection. See id. at ¶ 205. Here, the assistant prosecuting attorney led witnesses

and testified during examinations. Lee’s counsel raised objections to leading twice

during the three days of witness testimony, which the court overruled. But because

defense counsel failed to object to the allegedly pervasive leading, Lee concedes that

he must demonstrate plain error. See State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d


                                               8
                     OHIO FIRST DISTRICT COURT OF APPEALS



545 (1968), paragraph three of the syllabus. Lee has not demonstrated that the

questioning rose to the level of plain error because there is no reason to believe that

improper questioning affected the outcome of the trial.

       {¶21} Furthermore, Lee has not analyzed any specific questions or explained

how he was prejudiced. See McKelton at ¶ 264. As a result, he has not demonstrated

that the outcome of the trial would have been different if the assistant prosecuting

attorney had not used leading questions.

       {¶22} Lee also complains that the assistant prosecuting attorney committed

prosecutorial misconduct during his closing argument.     Lee’s defense hinged a large

portion of its argument on Lee’s three friends, who provided similar alibi testimony.

The assistant prosecuting attorney could properly respond to the defense’s argument

that Lee had been somewhere else at the time of the crime by challenging the

credibility of Lee’s friends and the identical nature of their testimony. However, he

went too far when he suggested that the reason their testimony had been so similar

was because defense counsel had coached them:

       PROSECUTOR: And it’s clear each of these stories were rehearsed.

       What am I supposed to do with these guys, they are his friends. They

       obviously talked several times with a lawyer. This is where we are. I

       was with him all day. What am I supposed to say? Just say maybe

       you’re lying, maybe you’re not being truthful? We know that he was in

       the neighborhood. We know he was there.

It is improper to denigrate defense counsel in the jury’s presence. State v. Davis, 116

Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 304. However, a closing argument

must be reviewed in its entirety when determining whether the misconduct was


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                        OHIO FIRST DISTRICT COURT OF APPEALS



prejudicial. State v. Moritz, 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). A

prosecutor is permitted to draw reasonable inferences from the evidence and present

those inferences during closing argument. State v. Treesh, 90 Ohio St.3d 460, 466,

739 N.E.2d 749 (2001).

       {¶23} Our review of both closing arguments convinces us that many of the

statements Lee now complains of were fair arguments based on the evidence or

responsive to his case theories. Further, the impact of any improper statements was

appropriately assuaged by the trial court’s instruction to the jury that closing

arguments were not evidence. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900

N.E.2d 565, at ¶ 211.

       {¶24} Thus, most of Lee’s claims of prosecutorial misconduct do not involve

error. Where the misconduct rose to the level of error, Lee’s counsel did not object,

and Lee has failed to demonstrate that, but for these errors, the jury’s verdicts would

have been different. As a result, we overrule Lee’s second assignment of error.

                          IV.   Ineffective Assistance of Counsel


       {¶25} In his third assignment of error, Lee claims that his trial counsel was

ineffective when (1) he failed to object to the state’s witness testifying that the gun

depicted in the photos was the same gun used in the robbery, (2) his cross-

examination elicited incriminating information from Detective Hubbard that

supported the state’s case, (3) he permitted the assistant prosecuting attorney to lead

and testify for his witnesses, (4) he failed to file a motion to suppress the eyewitness

identification of Lee, and (5) he failed to object to the improper statements by the




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                      OHIO FIRST DISTRICT COURT OF APPEALS



assistant prosecuting attorney in his closing argument.          Lee argues that the

accumulation of all these errors prejudiced his defense, denying him a fair trial.

       {¶26} To prevail on an ineffective-assistance claim, an appellant must

demonstrate that his counsel’s performance was deficient, and that, in the absence of

counsel’s errors there is a reasonable probability that the result of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373

(1989). “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland at 694. Our review of counsel’s performance must be

“highly deferential.” Id. at 689.

       {¶27} No objection to testimony about the gun in exhibits two and three.

Lee complains that his counsel did not object to testimony indicating that the gun in

the photos on his phone had been the same gun that was used in the robbery. Lee

does not explain what objection his counsel should have made to exclude this

testimony, nor does he describe how this testimony was prejudicial; he only states

that his counsel was ineffective for failing to object.     Further, the victim never

testified that the gun in the photos was the gun used. Anderson first testified that the

gun in exhibit two “looks exactly the same, same color, same size” as the one used to

rob him. Then he agreed that the gun in exhibit three looked similar to the gun used

in the robbery.    In fact, when defense counsel cross-examined him, Anderson

repeatedly stated that the gun in both pictures looked “fairly” or “pretty” similar to

the gun used to rob him, but that he could not say for certain that either were the

same gun. The record does not support Lee’s assertion that witnesses testified that




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                      OHIO FIRST DISTRICT COURT OF APPEALS



the exhibits contained the actual gun used in the robbery, and we cannot say that his

counsel was ineffective in failing to object.

       {¶28} Defense counsel elicited incriminating evidence. Lee contends that

defense counsel’s cross-examination of Detective Hubbard elicited testimony that

helped make the state’s case against him. He claims that his counsel provided

Detective Hubbard the opportunity to testify to what Lee’s codefendant had said

during his interview, and that he believed Lee had planned the robbery and held the

gun that day.

       {¶29} On cross-examination, Lee’s counsel asked Detective Hubbard if he

had any evidence that Lee had planned the robbery. Detective Hubbard answered, “I

have had a statement that was given to me about that.” The statement Detective

Hubbard was referring to was from an interview he had conducted with Lee’s

codefendant, Caronta Lackey, who was charged separately and pled guilty to the

robbery. When the assistant prosecuting attorney objected to the attempt to elicit

testimony about the interview, Lee’s counsel explained that he was trying to

challenge the existence of evidence of complicity. Lee is correct that his counsel

afforded Detective Hubbard the opportunity to testify that he believed Lee had

planned the robbery and held the gun. However, Lee’s counsel also cross-examined

Detective Hubbard extensively on his qualifications to conduct an interrogation, the

effectiveness of his interrogation and investigation, the credibility of Lackey and the

evidence against Lee, and the possibility of the involvement of another individual,

Raymond Minnifield.

       {¶30} “The scope of cross-examination falls within the ambit of trial strategy,

and debatable trial tactics do not establish ineffective assistance of counsel.” State v.


                                                12
                     OHIO FIRST DISTRICT COURT OF APPEALS



Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. We are not

persuaded that Lee’s counsel was ineffective for the decisions he made while

conducting cross-examination.

       {¶31} Failure to object to assistant prosecuting attorney’s leading

questions. We are not persuaded that Lee’s counsel’s conduct was ineffective because

he did not object to the assistant prosecuting attorney’s use of leading questions. A

review of the record demonstrates that the assistant prosecuting attorney stepped

beyond the line of appropriate use of leading questions. Lee is correct that the

assistant prosecuting attorney essentially testified for the state’s witnesses—

including Anderson and his daughter.       We are troubled by his use of his own

testimony to make the case against Lee under the guise of direct examinations.

However, whether to permit leading questions on direct examination is within the

trial court’s discretion. State v. Jackson, 92 Ohio St.3d 436, 449, 751 N.E.2d 946

(2001) (holding that failure to object to excessive leading questions by the state

during direct examination did not constitute ineffective assistance of counsel). In

spite of this misconduct, each witness provided consistent and certain testimony,

and the overwhelming evidence against Lee demonstrates that there is not a

reasonable probability of a different result had counsel objected to the improper use

of leading questions. See id.

       {¶32} Failure to file a motion to suppress. Next, Lee argues that his counsel

was ineffective because he did not file a motion to suppress the “show up”

identification. Lee asserts that the identification did not follow procedure. However,

he does not explain which procedural requirements were lacking. Failure to file a

motion to suppress constitutes ineffective assistance of counsel only when the record


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                     OHIO FIRST DISTRICT COURT OF APPEALS



establishes that the motion would have been granted. In re M.E., 1st Dist. Hamilton

No. C-140586, 2015-Ohio-3663, ¶ 7.

       {¶33} Anderson testified that the robbers ran between yards toward a

wooded area after the robbery. He and his wife had both called 911. After they

talked to the police in person, Anderson started driving around the neighborhood at

about three m.p.h. T.T. saw the gunman in a nearby park. Anderson drove around

the block to make sure it was the gunman, who was now wearing different clothing.

This occurred less than 30 minutes after they had talked to the police the first time.

Anderson then called the police again and reported that he was 100 percent sure he

had located the gunman.

       {¶34} The police met Anderson at a nearby store. The police brought one

young man to Anderson, which Anderson said was not the perpetrator. Then, the

police brought Lee over to Anderson. When the police took Lee out of the police

cruiser, Anderson immediately began walking toward the cruiser, pointing at Lee,

and saying that Lee was the person that had robbed him at gunpoint. Officer Renner

asked Anderson if he was positive that Lee was the robber and Anderson responded,

“Absolutely.” T.T. saw Lee sitting in the back of the police cruiser. The officers asked

her twice whether Lee was the robber and both times she said, “Yes.”

       {¶35} Detective Hubbard testified that this procedure had not been a “show

up” identification. He explained that this situation had been different because a

victim actually identified Lee as the robber independent of police involvement. He

stated that because T.T. and Anderson had already positively identified Lee as the

robber when they saw him in the park, Officer Renner was merely verifying that the

individual in custody was the individual that they had previously identified as the


                                              14
                      OHIO FIRST DISTRICT COURT OF APPEALS



robber.   Officer Renner, however, did characterize this process as a “show up”

identification.

       {¶36} The question of whether a “one-on-one show up” identification

violates due process hinges on whether there was a “very substantial likelihood of

misidentification” based on the totality of the circumstances. State v. Madison, 64

Ohio St.2d 322, 331, 415 N.E.2d 272 (1980); see State v. Ward, 1st. Dist. Hamilton

No. C-140721, 2015-Ohio-2260, ¶ 17-18. The factors the court should consider in

determining the likelihood of misidentification include (1) the opportunity of the

witness to view the suspect at the time of the offense, (2) the witness’s degree of

attention, (3) the accuracy of the witness’s prior description of the suspect, (4) the

level of certainty demonstrated by the witness at the confrontation, and (5) the

length of time between the offense and the confrontation. Madison at 331-332; State

v. Echols, 146 Ohio App.3d 81, 89, 765 N.E.2d 379 (1st Dist.2001).

       {¶37} Anderson was in close proximity to the robbers, and T.T. watched the

robbery unfold from Anderson’s nearby truck.              T.T. testified that she had

remembered Lee’s face and identified him in the park within 30 minutes. When T.T.

saw Lee in the park, Anderson drove by again so that they could be certain. Both

Anderson and T.T. identified Lee with certainty. Anderson even told the officers that

the first individual they brought had not been one of the robbers. After considering

these factors we cannot conclude that the identification was so flawed as to create a

“substantial likelihood of misidentification” based on the totality of the

circumstances.    See id.   Thus, even if this procedure qualified as a “show up”

identification, Lee’s counsel was not ineffective for failing to file a motion to suppress




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the identification. See In re M.E., 1st Dist. Hamilton No. C-140586, 2015-Ohio-3663,

at ¶ 7.

          {¶38} Improper statements made by assistant prosecuting attorney during

closing arguments.         The assistant prosecuting attorney’s improper remarks

denigrating defense counsel and suggesting that defense counsel had coached the

witnesses went beyond fair comment and rose to the level of prosecutorial

misconduct. However, we have already explained that Lee has not demonstrated

that he was prejudiced by this misconduct. Further, “[a] reasonable attorney may

decide not to interrupt his adversary’s argument as a matter of strategy.” State v.

Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 42. Because Lee has

not demonstrated prejudice, he cannot demonstrate that the outcome of the trial

would have been different had his counsel objected.

          {¶39} Therefore, we cannot say that counsel’s representation fell below an

objective standard of reasonable representation. See Strickland, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674, at 687-688; Bradley, 42 Ohio St.3d 136, 141-142, 538

N.E.2d 373, at 380. We overrule the third assignment of error.

                      V.      Weight and Sufficiency of the Evidence


          {¶40} In his third assignment of error, Lee challenges the weight and

sufficiency of the evidence upon which his aggravated-robbery conviction was based.1

          {¶41} In a challenge to the sufficiency of the evidence, the question is

whether, after viewing the evidence in the light most favorable to the state, any



1 Lee contends that the state failed to prove that he committed aggravated robbery and robbery.
Because the robbery count was merged with the aggravated-robbery count, he was not convicted
of robbery and we address only his conviction for aggravated robbery.


                                                  16
                      OHIO FIRST DISTRICT COURT OF APPEALS



rational trier of fact could have found all the essential elements of the crime proved

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. When considering a challenge to the weight of

the evidence, the 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. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485

N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

       {¶42} The aggravated-robbery statute, R.C. 2911.01(A)(1), provides:

               No person, in attempting or committing a theft offense, as

               defined in section 2913.01 of the Revised Code, or in fleeing

               immediately after the attempt or offense shall * * * [h]ave a

               deadly weapon on or about the offender’s person or under the

               offender’s control and either display the weapon, brandish it,

               indicate that the offender possesses it, or use it.

In this case, the jury was entitled to disbelieve Lee’s alibi witnesses and to believe

Anderson’s and T.T.’s testimony that Lee had participated in the robbery. As a

result, Lee’s conviction was not against the manifest weight of the evidence and was

supported by sufficient evidence. We overrule the fourth assignment of error.

                                 VI.    Motion for Acquittal


       {¶43} In his fifth assignment of error, Lee contends the trial court erred by

overruling his motion for acquittal after the verdict, pursuant to Crim.R. 29. Lee



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                     OHIO FIRST DISTRICT COURT OF APPEALS



argues that the jury returned inconsistent verdicts when it found him guilty of

aggravated robbery, but not guilty of the accompanying firearm specification. The

conviction on a principal charge and acquittal on a specification for identical

behavior is not invalid. State v. Allen, 1st Dist. Hamilton No. C-060239, 2006-Ohio-

6822, ¶ 32, citing State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040

(1976), paragraph three of the syllabus, vacated in part on other grounds, 438 U.S.

911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978). Here, the jury was instructed to consider

the aggravated-robbery charge separately from the corresponding specifications.

We cannot say why the jury returned its verdict in this way, but such a result does

not mean the jury was not convinced that Lee was guilty of aggravated robbery.

       {¶44} We overrule Lee’s fifth assignment of error.

                                    VII.   Sentencing


       {¶45} In his sixth assignment of error, Lee argues that his sentence is

contrary to law because the trial court failed to consider the purposes and principles

of sentencing. Under R.C. 2953.08(G)(2), this court may vacate or modify a sentence

only if we clearly and convincingly find that the record does not support the

mandatory sentencing findings, or that the sentence is otherwise contrary to law.

See State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22;

State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

       {¶46} Lee complains that his sentence is contrary to law because the trial

court failed to consider the purposes and principles of sentencing, and his eight-year

sentence was two years more than the sentence given his codefendant, who received

an aggregate term of six years for this robbery and two subsequent robberies.



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       {¶47} “The overriding purposes of felony sentencing are to protect the public

from future crime by the offender and others and to punish the offender using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.” R.C.

2929.11(A). In sentencing a felony offender, a court must consider these purposes, as

well as the seriousness and recidivism factors set forth in R.C. 2929.12.         R.C.

2929.12(A).

       {¶48} Here, Lee’s sentence for the aggravated robbery fell within the

statutory range for a first-degree felony.     R.C. 2929.14(A)(1).    The trial court

explicitly considered the purposes of felony sentencing detailed in R.C. 2929.11(A)

and the seriousness of Lee’s offense. The court also considered that Lee had been on

community control for a theft conviction when he was arrested for this offense. It

reviewed Lee’s juvenile record, which included multiple adjudications for burglary,

theft, delinquency, criminal trespass, criminal damaging, and obstructing official

business. The court also considered Lee’s codefendant’s sentence and the fact that

Lackey had admitted to criminal conduct. Lee’s sentence is not contrary to law.

       {¶49} Finally, Lee complains that the trial court failed to notify him that he

was required to submit a DNA specimen and of the consequences for failing to

comply. This court has previously held that the failure to provide this notification is

harmless error. State v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548,

¶ 6. Therefore, we overrule Lee’s sixth assignment of error and affirm the trial

court’s judgment.

                                                                  Judgment affirmed.




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ZAYAS, P.J., MYERS and GORMAN, JJ.

ROBERT GORMAN, retired, from the First Appellate District, sitting by assignment.

Please note:

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




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