[Cite as State v. Turner, 2018-Ohio-3898.]


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

STATE OF OHIO                                          C.A. No.     28775

          Appellee

          v.                                           APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TRENT D. TURNER                                        COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
          Appellant                                    CASE No.   CR-2015-11-3653-C

                                 DECISION AND JOURNAL ENTRY

Dated: September 26, 2018



          SCHAFER, Presiding Judge.

          {¶1}     Defendant-Appellant, Trent D. Turner, appeals from his convictions in the

Summit County Court of Common Pleas. For the reasons that follow, we affirm.

                                                  I.

          {¶2}     In September of 2016, the Summit County Grand Jury indicted Turner1 for the

following offenses: Count 7 - aggravated murder in violation of R.C. 2903.01(B), a special

felony; Count 8 - murder in violation of R.C. 2903.02(A), a special felony; Count 9 - murder in

violation of R.C. 2903.02(B), a special felony; Count 10 - aggravated robbery in violation of

R.C. 2911.01(A)(3), a first-degree felony; Count 11 - aggravated robbery in violation of R.C.

2911.01(A)(1),        a first-degree felony; Count 12 - aggravated robbery in violation of R.C.

2911.01(A)(1), a first-degree felony; Count 13 - aggravated burglary in violation of R.C.




          1
              Counts 1-4 and 5-6 of the indictment charged two co-defendants not relevant to this
appeal.
                                                2


2911.11(A)(1),    a first-degree felony; Count 14 - aggravated burglary in violation of R.C.

2911.01(A)(2), a first-degree felony; Count 15 - trespass in a habitation in violation of R.C.

2911.12(B), a fourth-degree felony; Count 16 - felonious assault in violation of R.C.

2903.11(A)(2), a second-degree felony; Count 17 - felonious assault in violation of R.C.

2903.11(A)(1), a second-degree felony; Count 18 - grand theft in violation of R.C.

2913.02(A)(1), a third-degree felony; Count 19 - having weapons while under disability in

violation of R.C. 2923.13(A)(3), a third-degree felony; and Count 20 - carrying concealed

weapons in violation of R.C. 2923.12(A)(2), a fourth-degree felony. Counts 7-18 each included

a firearm specification pursuant to R.C. 2941.145. Counts 7-17 each included a repeat offender

specification pursuant to R.C. 2941.149.

       {¶3}    The indictment arose from a shooting that occurred during a drug transaction,

resulting in the death of C.S. on or about the night of November 8, 2015. Turner entered a plea

of not guilty to all charges. The trial court held a hearing on Turner’s motion to suppress, and

overruled the motion prior to trial.

       {¶4}    The matter proceeded to a jury trial. At trial, 12 witnesses testified on behalf of

the State. At the close of the State’s case-in-chief, Turner made a Crim.R. 29 motion for

judgment of acquittal, renewed all prior motions, and, after resting without calling witnesses,

renewed all motions again prior to closing arguments. The trial court summarily denied these

motions.

       {¶5}    After deliberations, the jury returned its verdicts finding Turner not guilty of the

offenses of aggravated murder in Count 7 and murder in Count 8. The jury found Turner guilty

of the offenses in all twelve of the remaining counts and all firearm specifications attached

thereto. The trial court accepted the jury’s verdicts and entered judgment accordingly. Based on
                                                 3


the finding that Turner was not guilty on Counts 7 and 8, the trial court dismissed the attached

repeat violent offender specifications. The trial court considered the repeat violent offender

specifications attached to Counts 9, 10, 11, 12, 13, 14, 16, and 17, and made the finding that

Turner is a repeat violent offender with respect to each of those specifications. The trial court

then sentenced Turner according to law.

       {¶6}    Turner timely appealed his conviction, presenting three assignments of error for

our review.

                                                 II.

                                      Assignment of Error I

       The trial court erred when it failed to suppress all evidence and statements
       obtained in violation of [Turner]’s Fourth, Fifth and Sixth Amendment
       rights under the United States Constitution and Article I, Sections Ten and
       Fourteen of the Ohio Constitution.

       {¶7}    In his first assignment of error, Turner contends the trial court erred when it

denied his motion to suppress all out-of-court and in-court identification by State’s witness,

Andrew Scovern, an eye-witness to the shooting. Turner argues that, during the investigations,

Mr. Scovern was exposed to an impermissibly suggestive and tainted photo array. Turner further

argues that this Court should reverse the trial court’s denial of the motion to suppress and order

the charges against him to be dismissed. We disagree.

       {¶8}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When the trial court considers a motion to

suppress, it assumes the role of trier of fact and, therefore, it is in the “best position to resolve

factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio

St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Id. This Court must “then independently
                                                  4


determine, without deference to the conclusion of the trial court, whether the facts satisfy the

applicable legal standard.” Id.

       {¶9}    The trial court held a hearing on Turner’s motion to suppress eyewitness

identification. At the hearing, the court heard testimony from two detectives of the Summit

County Sheriff’s Office investigating the shooting death of C.S.—Detective Jeff Franklin and

Detective Jason Kline—and admitted State’s Exhibits A and B. After the conclusion of the

hearing, the trial court issued a decision denying the motion to suppress, and finding that the

photo array presented to Mr. Scovern was not unnecessarily suggestive, nor was Mr. Scovern’s

identification of Turner as the shooter unreliable.

       {¶10} This Court engages in a two-part analysis to determine whether photo array

procedures were unnecessarily suggestive, such that due process requires suppression of the

identification. State v. Johnson, 9th Dist. Summit No. 22688, 2006-Ohio-1313, ¶ 8, citing State

v. Waddy, 63 Ohio St.3d 424, 438 (1992).              First, the court must determine whether the

identification procedure was unnecessarily suggestive. Waddy at 438, citing Neil v. Biggers, 409

U.S. 188, 196-198 (1972); Manson v. Brathwaite, 432 U.S. 98, 116 (1977). If the procedure was

unnecessarily suggestive, the court must then determine whether the identification was ultimately

unreliable under the all of the circumstances. Waddy at 439. The court must consider the

relevant factors to assess reliability and determine whether the circumstances of the identification

created “‘“a very substantial likelihood of irreparable misidentification.”’”      Waddy at 439,

quoting Simmons v. United States, 390 U.S. 377, 384 (1968), quoting Neil at 198. Those factors

include:

       (1) the witness’s opportunity to view the defendant at the time of the incident, (2)
       the witness’s degree of attention, (3) the accuracy of the witness’s prior
       description, (4) the witness’s certainty when identifying the suspect at the time of
                                                5


       the confrontation, and (5) the length of time elapsed between the crime and the
       identification.

Johnson, 2006-Ohio-1313 at ¶ 9, quoting State v. Davis, 76 Ohio St.3d 107, 113 (1996).

       {¶11} In his merit brief, Turner reiterates the arguments made in the motion to the trial

court in addition to raising new arguments based on testimony at trial. However, Turner has not

directly challenged any of the trial court’s findings of fact or conclusions of law in the journal

entry denying the suppression motion. Turner argues that Mr. Scovern gave “vague, inconsistent

and grossly racist descriptions of the shooters” and claims that it is, therefore, “impossible that

Mr. Scovern identified [Turner] based only on his memory of the events of November 8, 2015.”

Turner also argues that “Mr. Scovern had conducted an independent ‘Facebook research’ to

identify [Turner] after learning that he was a possible suspect.” These new arguments were not

raised before the trial court and are not based on evidence or testimony from the suppression

hearing; rather they are based entirely on trial testimony. However, trial testimony has no

bearing upon the trial court’s ruling on a pretrial suppression motion. State v. Jackson, 9th Dist.

Summit No. 26234, 2012-Ohio-3785, ¶ 14. When reviewing the trial court’s decision to deny a

motion to suppress, this Court must confine our review to the evidence presented during the

pretrial suppression hearing, “because such evidence was the only evidence before the trial court

when it ruled on the motion.” State v. Weese, 9th Dist. Summit No. 20769, 2002-Ohio-3750, fn.

2. Accordingly, we decline to address those arguments as they are not within the scope of this

Court’s review.

       {¶12} Turner also argues that the photo array was “‘so impermissibly suggestive’ that it

gave rise to a very substantial likelihood of irreparable misidentification.” Turner contends that

officers used “several biasing techniques” to pick Turner as the perpetrator.     Turner does not

specify the nature of these alleged biasing techniques or indicate any other procedural
                                                 6


deficiencies, aside from asserting that Mr. Scovern “had seen the surveillance video multiple

times prior to attempting his identification” and that detectives replayed “the surveillance video

to improperly steer [Mr. Scovern] to select [Turner]” in the photo array.

       {¶13} In its ruling on the motion to suppress, the trial court acknowledged that Mr.

Scovern viewed surveillance footage firsthand, viewing it live on a screen in the room just prior

to, and just after, the shooting occurred. A monitor, located in the same room where Mr.

Scovern was confronted face to face with the shooter, displayed a multi-view live feed of the

exterior of the victim’s residence. Mr. Scovern later reviewed the recorded surveillance video

and still images taken from the footage on the phone of the victim’s brother prior to his initial

interview with the detectives. “The rationale for excluding a tainted pretrial identification[,]”

however, “is to protect the defendant from misconduct by the state.” (Emphasis added.) State v.

Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 19, quoting State v. Brown, 38 Ohio St.3d 305,

310 (1988). The facts regarding Mr. Scovern’s observations of surveillance video and images

with C.S.’s brother prior to his initial interview with detectives do not implicate state action and,

therefore, are not relevant to the procedure detectives used in the confrontation. See Brown at

310-311.

       {¶14} Turner also maintains his contention that the detectives’ review of the

surveillance video with Mr. Scovern was impermissibly suggestive. In its decision, the trial

court recognized that detectives reviewed the surveillance video with Mr. Scovern during his

initial interview on November 9, 2015. In addition to finding that Mr. Scovern had already

viewed the surveillance video on the live-feed and on the phone of C.S.’s brother, the trial court

also correctly noted that Turner was present, in a room with good lighting, and face-to-face with

the shooter from a distance of approximately four feet.
                                                 7


       {¶15} Furthermore, the trial court observed that Turner had not yet been identified as a

suspect when Mr. Scovern reviewed the surveillance video with detectives. At a later interview

on November 13, 2015, after Turner was named as a suspect, police presented Mr. Scovern with

another photo array. Mr. Scovern identified Turner as the shooter based on this photo array,

twice selecting Turner’s photo and indicating a high degree of certainty with his selection. We

conclude that the trial court determined, based on competent and credible evidence in the record,

that detectives had followed standard procedures in the assembly and presentation of that photo

array to Mr. Scovern.

       {¶16} Although the trial court was not required to continue in its analysis, the court went

on to find in the alternative that “even if it could be said that the photo array was in some way

unduly suggestive, it was still appropriate.” The trial court based this determination on findings

relevant to the five factors used to assess reliability of a suggestive identification. See Johnson,

2006-Ohio-1313 at ¶ 9. The trial court found that Mr. Scovern had ample opportunity to observe

the shooter during the incident, and that he witnessed from a close proximity when the shooter

pulled out a gun, shot C.S., and then instructed Mr. Scovern himself to turn and face the wall.

Although Mr. Scovern’s initial description of the shooter was somewhat vague, the trial court

found that Mr. Scovern indicated certainty in his identification of Turner in the photo array and,

moreover, Mr. Scovern made his identification a mere four days after the incident.

       {¶17} Upon review, this Court agrees with the trial court’s conclusion that there was no

evidentiary support in the record to suggest that the eyewitness identification procedure was “so

impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification[,]” and that, based on the totality of the circumstances, the identification was
                                                  8


reliable. Therefore, we conclude that the trial court did not err in denying the motion to

suppress. Turner’s first assignment of error is overruled.

                                      Assignment of Error II

       The evidence in this case was insufficient as a matter of law to support the
       convictions and, as a result, [Turner]’s rights as protected by Article I,
       Section 16 of the Ohio Constitution and Fifth Amendment of the United
       States Constitution were violated.

       {¶18} In his second assignment of error, Turner contends his convictions are not

supported by sufficient evidence and argues that his convictions were based on “defective

eyewitness testimony.” Turner claims that, “[w]ithout forensic evidence to connect him to the

scene of the shooting and with no reliable eyewitness identification, there was simply no

evidence to convict [him] of the alleged crimes.” We disagree.

       {¶19} A challenge to the sufficiency of a criminal conviction presents a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out

this review, our “function * * * is to examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to the prosecution,

we must decide whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id. Although we conduct a de novo review when

considering a sufficiency of the evidence challenge, the appellate court does not resolve

evidentiary conflicts or assess the credibility of witnesses as those functions belong to the trier of

fact. State v. Tucker, 9th Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.

       {¶20} This matter involves Turner’s convictions for murder, aggravated robbery,

aggravated burglary, trespass in a habitation, felonious assault, grand theft, having weapons
                                                  9


while under disability, and carrying concealed weapons, along with the related firearm and

repeat offender specifications. Turner does not challenge the sufficiency of the evidence with

respect to any particular offense or offenses for which he was convicted. Instead, Turner focuses

on the issue of identification, arguing that the “State’s entire case against [him] hinged on

eyewitness identifications[,] each of which was defective and unreliable” and challenging that

there was “absolutely no forensic evidence” connecting him to the scene of the shooting.

       {¶21} “[I]dentity of the perpetrator is an essential element that must be proved beyond a

reasonable doubt.” State v. Johnson, 9th Dist. Lorain No. 13CA010496, 2015-Ohio-1689, ¶ 13.

“As with any other element, * * * identity may be proved by direct or circumstantial evidence,

which do not differ with respect to probative value.” State v. Taylor, 9th Dist. Summit No.

27273, 2015-Ohio-403, ¶ 9.       Turner has limited his sufficiency challenge to the issue of

identification; accordingly, we limit our review to that issue.     Because it is unclear from his

merit brief the scope of Turner’s argument (i.e. whether he means to challenge the sufficiency of

the evidence specifically implicating Turner as the shooter, or more broadly as it relates to all of

his convictions), we confine our analysis to the specific issues Turner has raised in his brief.

       {¶22} Turner argues that the testimony of State’s witnesses, Mr. Sims and Ty’Shawn

Henderson, is unreliable because each received favorable treatment from the State in exchange

for their testimony. During trial, both Mr. Sims and Mr. Henderson testified before the jury

regarding their respective agreements with the State and were cross-examined on this issue.

Thus, the jury had the opportunity to consider these issues as they relate to credibility of the

witnesses’ testimony implicating or identifying Turner. However, “an evaluation of witnesses’

credibility * * * is not proper on review for evidentiary sufficiency” and such challenges are not
                                                10


relevant to Turner’s sufficiency of the evidence claim. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, ¶ 79.

       {¶23} Additionally, Turner asserts that State’s witness, Alex Eggleston, did not identify

Turner as the shooter because he did not witness the shooting. Turner also notes that State’s

witness, Zachary Apenzeller, was either unable to identify Turner from a photo array or, as the

State suggested, refused to do so out of fear for retaliation. Turner fails to demonstrate the

relevance of Mr. Eggleston’s testimony, or Mr. Apenzeller’s inability or unwillingness to

identify Turner, to his claim of insufficient evidence and has not articulated a sufficiency

argument on this point.

       {¶24} Finally, we address Turner’s assertion that the State did not present any “forensic

evidence” connecting Turner to the shooting.         This Court’s “function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted

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

defendant’s guilt beyond a reasonable doubt.” (Emphasis sic.) State v. Wilks, __Ohio St.3d__,

2018-Ohio-1562, ¶ 167, quoting Jenks at paragraph two of the syllabus. We again note that the

State can establish identity through direct or circumstantial evidence. Taylor, 2015-Ohio-403 at

¶ 9. The fact that the State did not present a particular type of evidence does not negate the

sufficiency of the identification evidence that the State did present. See Wilks at ¶ 166, citing

State v. Dye, 9th Dist. Summit No. 17763, 1997 Ohio App. LEXIS 873, 23 (Mar. 12, 1997) (the

“State need only have had sufficient evidence, not the best possible evidence, to survive a

challenge on insufficient evidence grounds.”) We conclude that Turner’s argument regarding the

absence of forensic evidence fails to present a challenge to the sufficiency of the evidence.
                                                11


       {¶26} Turner has made “cursory reference to * * * purported deficiencies in the trial

court record, but fails to explain how any of the issues he attempts to raise establish that the

evidence at trial was insufficient to sustain his conviction.” State v. Sadeghi, 9th Dist. Wayne

No. 14AP0051, 2016-Ohio-744, ¶ 28. We conclude that Turner has not demonstrated that the

State failed to present sufficient evidence to prove identity. Turner’s second assignment of error

is overruled.


                                    Assignment of Error III

       The verdicts in this case were against the manifest weight [of the] evidence
       and, as a result, [Turner]’s rights as protected by Article I, Section 16 of the
       Ohio Constitution and Fifth Amendment of the United States Constitution
       were violated.

       {¶25} In his third assignment of error, Turner contends that the verdicts in this case were

against the manifest weight of the evidence.

       {¶26} A sufficiency challenge is legally distinct from a manifest weight challenge.

Thompkins at 387. Accordingly, when applying the manifest weight standard, we are required to

consider the whole record, “weigh the evidence and all reasonable inferences, consider the

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

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

must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th

Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds “in

exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing

Otten at 340, where the evidence “weighs heavily against the conviction,” Thompkins at 387.

       {¶27} Turner argues that “[i]n this case, the manifest weight of the evidence balances in

favor of [Turner].” In his brief, Turner contends that, even though his motion to suppress was
                                                 12


not granted, “all of the identification testimony presented at trial was wholly without credibility.”

Without pointing to any particular evidence in the record, Turner very briefly reiterates his

argument from the first two assignments of error. Turner references Mr. Scovern’s review of the

surveillance video and alludes to a plea deal between Mr. Scovern and the State in claiming that

Mr. Scovern’s identification of Turner was “suspect” and “unreliable.” Turner then summarily

concludes that, with the lack of forensic evidence and the “tainted or unreliable eyewitness

identification, there was not sufficient evidence to convict [Turner] and his conviction was

against the manifest weight of the evidence.”

       {¶28} The Ohio Supreme Court has identified eight factors that may be considered when

deciding whether a conviction is against the weight of the evidence:

       These include whether the evidence was uncontradicted, whether a witness was
       impeached, what was not proved, that the reviewing court is not required to
       accept the incredible as true, the certainty of the evidence, the reliability of the
       evidence, whether a witness’ testimony is self-serving, and whether the evidence
       is vague, uncertain, conflicting, or fragmentary.

(Emphasis sic.) State v. Apanovitch, 33 Ohio St.3d 19, 23-24 (1987). It is not enough to simply

mention one of these factors, however, as Turner has done. Turner carried the burden to present

an argument, with citations to the record, to support the conclusion that the conviction is against

the weight of the evidence. He failed to take that step.

       {¶29} In this third assignment of error, Turner improperly relies on his arguments in his

first two assignments of error without making any attempt to demonstrate how his contentions

relate to the weight of the evidence with respect to any element of the twelve charges for which

he was convicted. See State v. Feliciano, 9th Dist. Lorain No. 09CA009595, 2010-Ohio-2809, ¶

33. In doing so, he fails to articulate a separate manifest weight argument. Mr. Turner did not

cite to a single page in the seven volumes of the trial testimony to support his conclusion that the
                                                 13


evidence weighs against any of his convictions. A conclusory statement that witnesses are

unreliable does not meet the appellant’s burden to show that a conviction is against the weight of

the evidence. This Court relies on the appellant to create an argument based on the law and the

facts. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to

frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties

present.”). Aside from setting forth the standard of review for a manifest weight challenge,

Turner has not cited to authorities, statutes, or parts of the record. Turner has not presented an

argument supporting his contentions with respect to this assignment of error as required by

App.R. 16(A)(7). This court will not create or develop an argument on Turner’s behalf. State v.

Jackson, 9th Dist. Summit No. 28691, 2018-Ohio-1285, ¶ 47, citing Sadeghi, 2016-Ohio-744 at

¶ 32. Furthermore, this Court “may disregard an assignment of error presented for review if the

party raising it fails to identify in the record the error on which the assignment of error is based

or fails to argue the assignment separately in the brief, as required under App.R. 16(A).” App.R.

12(A)(2); accord Loc. App. R. 7(F).

       {¶30} We conclude that Turner has failed to articulate an argument to support his

contention that any of his convictions was against the manifest weight of the evidence. Turner’s

third assignment of error is overruled.

                                                III.

       {¶31} All three of Turner’s assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.



                                                                                Judgment affirmed.
                                                14




       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.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CALLAHAN, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
