[Cite as State v. Johnson, 2013-Ohio-5430.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99656




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   DELANO JOHNSON
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART
                    AND REMANDED FOR RESENTENCING



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-569113

        BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEY FOR APPELLANT

Ashley L. Jones
75 Public Square, Suite 714
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant Delano Johnson (“Johnson”) appeals his aggravated

robbery and kidnapping convictions. We find some merit to the appeal, affirm in part

and reverse in part.

       {¶2} Johnson was charged with one count of aggravated robbery and one count of

kidnapping. Both charges included one- and three-year firearm specifications. At a

bench trial, the victim, Joy Thomas (“Thomas”), testified she was walking through a

playground at the Outhwaite Estates at approximately 9:30 p.m. when she was

approached by three men. One of the men pressed a silver gun into her stomach while

another man went through her pockets and took her cell phone and two five-dollar bills.

Thomas asked the men to let her keep the cell phone because it contained all her contacts

and photographs, and the man who went through her pockets responded: “Shut the fuck

up and don’t move.”

       {¶3} After the men took everything from Thomas’s pockets, they ordered her to

walk away. Thomas walked toward East 55th Street, and the three men walked toward

Outhwaite Avenue. Almost immediately, Thomas flagged down Officer Louis Catalani

(“Catalani”), reported the robbery, and gave detailed descriptions of the suspects. She

described the man who went through her pockets as a male, in his late teens or early

twenties, 5’8” tall, wearing a gray knit hat, a black jacket, and black jeans. Catalani

broadcast the descriptions of the suspects to other officers in the area.
       {¶4} Within minutes, one of the officers observed a suspect matching Thomas’s

description walking down Outhwaite Avenue at East 43rd Street. Officers stopped the

suspect and drove him to a nearby gas station where Thomas and Catalani were

completing a police report. Thomas became “very excited” upon seeing the suspect and

demanded the return of her cell phone. She recognized the suspect, who was later

identified as Johnson, the man who searched her pockets. She told police she was 100

percent certain this was the man.

       {¶5} Johnson, who lives in the Outhwaite Estates, testified on his own behalf. He

stated that on the night of the robbery he was sleeping until 10:00 p.m. when he left for

the store to buy diapers and milk. He denied knowing anything about the robbery and

asserted that this was a case of mistaken identity.

       {¶6} After hearing the evidence, the court found Johnson guilty of one count of

aggravated robbery and one count of kidnapping. The court sentenced Johnson to three

years each on the aggravated robbery and kidnapping convictions. Each count carried

mandatory three-year prison sentences for gun specifications. The court ordered the

sentences for the underlying convictions to run concurrently but consecutive to the

mandatory three years on the gun specifications for an aggregate six-year prison term.

Johnson now appeals and raises four assignments of error.

                            Ineffective Assistance of Counsel

       {¶7} In the first assignment of error, Johnson argues he was denied his Sixth

Amendment right to the effective assistance of counsel. He contends his trial counsel
was deficient because she failed to file a motion to suppress Thomas’s cold-stand

identification of Johnson.

       {¶8} To establish ineffective assistance of counsel, a defendant must show that

counsel’s representation “fell below an objective standard of reasonableness,” and “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” State v. Sanders, 94 Ohio St.3d 150, 151, 761

N.E.2d 18 (2002), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989), quoting Strickland at 694.

       {¶9} Johnson argues trial counsel’s failure to file a motion to suppress the

cold-stand identification was deficient because there was both a statutory and

constitutional basis for suppression. He contends the police violated R.C. 2933.83(B)

when they conducted the cold-stand identification. He also contends the identification

procedure violated due process because it was unduly suggestive.

       {¶10} R.C. 2933.83(B) requires any law enforcement agency that conducts live or

photo lineups to adopt specific procedures for conducting the lineups.             State v.

Alexander, 8th Dist. Cuyahoga No. 98941, 2013-Ohio-2533, ¶ 25. However, the failure

of a law enforcement agency to comply with the procedures set forth in R.C. 2933.83

does not automatically warrant suppression, and a trial court errs in solely relying on the

statute alone in suppressing an identification. State v. Wells, 8th Dist. Cuyahoga No.

98388, 2013-Ohio-3722, ¶ 84.
       {¶11} R.C. 2933.83(C)(1) requires the trial court to consider evidence of

noncompliance with the statute in ruling on a defendant’s motion to suppress. The fact

of noncompliance is also admissible to support any claim of eyewitness misidentification

at trial. R.C. 2933.83(C)(2). “The ‘penalty’ for failure to comply with R.C. 2933.83 is a

potential jury instruction regarding the noncompliance, not immediate suppression.”

Wells at ¶ 83.

       {¶12} In determining whether to suppress an out-of-court identification that failed

to comply with the procedures outlined in R.C. 2933.83, the court must determine

whether the procedure was “impermissibly suggestive.” Neil v. Biggers, 409 U.S. 188,

93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil, the United States Supreme Court outlined

a two-prong analysis for determining if due process has been violated by the use of

evidence derived through suggestive identification procedures. First, the court must

decide whether the identification procedure was unnecessarily suggestive of the

defendant’s guilt. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992),

superseded by constitutional amendment on other grounds, citing Neil at 188. Second,

the court must determine “whether, under all the circumstances, the identification was

reliable, i.e., whether suggestive procedures created ‘a very substantial likelihood of

irreparable misidentification.’” Id. at 439.

       {¶13} The presentation of a single suspect for identification is ordinarily

discouraged. However, an exception is recognized when the suspect is apprehended at or

near the scene of the crime and is presented to the victim or witness shortly thereafter.

State v. Smith, 8th Dist. Cuyahoga No. 94545, 2011-Ohio-924, citing State v. Davis, 8th
Dist. Cuyahoga No. 83033, 2004-Ohio-1908. The focus is on the reliability of the

identification, not the identification procedures. State v. Jells, 53 Ohio St.3d 22, 26, 559

N.E.2d 464 (1990).

       {¶14} In evaluating the reliability of an identification, the court must consider (1)

the witness’s opportunity to view the individual at the time of the crime, (2) the witness’s

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

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

of time between the crime and the confrontation. Neil, 409 U.S. at 199. Moreover, the

defendant bears the burden of demonstrating that the identification procedure was

unfairly suggestive. State v. Freeman, 8th Dist. Cuyahoga No. 85137, 2005-Ohio-3480,

rev’d on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d

313, 2006-Ohio-2109, 847 N.E.2d 1174.

       {¶15} The cold-stand identification of Johnson was not impermissively suggestive

and did not warrant suppression. Thomas testified that she saw Johnson’s entire face as

he was searching through her pockets. Although it was night, Johnson’s face was eight

inches away from Thomas, and there was plenty of light in the playground to see his

features and the color of his clothes. Thomas gave police a detailed description of the

suspect including his attire, build, and features.      Johnson matched the description

completely. Police apprehended him near the scene of the crime, and Thomas identified

him within 30 minutes. Furthermore, there is no evidence that police suggested the

suspect was the individual who robbed her. Under these circumstances, the cold-stand

identification was reliable, and a motion to suppress would have been denied. Therefore,
trial counsel’s decision not to file a motion to suppress does not constitute ineffective

assistance of counsel.

       {¶16} The first assignment of error is overruled.

                         Sufficiency and Weight of the Evidence

       {¶17} In the second and third assignments of error, Johnson argues there was

insufficient evidence to support his convictions and that his convictions were against the

manifest weight of the evidence. Although the terms “sufficiency” and “weight” of the

evidence are “quantitatively and qualitatively different,” we will address these issues

together, while applying the distinct standards of review to Johnson’s arguments. State

v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶18} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶19} In contrast to sufficiency, “weight of the evidence involves the inclination of

the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the

evidence is a test of adequacy as to whether the evidence is legally sufficient to support a

verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of

inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing court

must consider all the evidence in the record, the reasonable inferences, and the credibility

of the witnesses, to determine whether, “in resolving conflicts in the evidence, the jury

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, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶20} The court found Johnson guilty of aggravated robbery in violation of R.C.

2911.01(A)(1), which states that “[n]o person, in attempting or committing a theft offense

or in fleeing immediately after the attempt or offense, shall * * * have a deadly weapon

on or about the offender’s person or under the offender’s control.” Thomas testified that

Johnson removed her belongings from her pockets while his accomplice held a gun to her

stomach. Although Johnson did not brandish the weapon, he is deemed to have used the

weapon under the complicity statute because his accomplice used it to facilitate the

offense. State v. Quarterman, 8th Dist. Cuyahoga No. 99317, 2013-Ohio-4037, ¶ 18;

R.C. 2929.03(A).      Therefore, there was sufficient evidence that Johnson committed

aggravated robbery.

       {¶21} Johnson’s aggravated robbery conviction is also supported by the manifest

weight of the evidence. Thomas testified she was 100 percent certain Johnson was the

one who stole her cell phone and money. In describing the incident, Thomas stated:

       A: I saw them the entire time. The entire time it was not dark where we
       were standing. There was still another light on the playground.
       Q: How much of an opportunity did you have to see the face of Mr.
       Johnson?
       A: One hundred percent he is the one that went through my pockets. He
       was right in my face, frisked me and went through my pockets. And then
       when I asked for my phone, he retorted back to shut the fuck up and don’t
       move.

       *   *   *

       Q: And you are certain that that is the person who had just robbed you?

       A: The one that went through my pockets, yes, ma’am. He did not have the
       gun. He is the one who went through my pockets. Yes one hundred
       percent. Yes.

       {¶22} As previously stated, police found Johnson near the scene of the crime, and

Thomas identified him as one of the perpetrators within minutes. Catalani’s description of

Thomas’s reaction during the cold-stand identification also weighs in favor of her

positive identification. He testified:

       A: I advised Ms. Thomas that I wanted her to look at somebody and tell me
       if she recognized him. I walked her over. She observed the male and
       advised me that’s him. One hundred percent sure that’s him.

       ***

       As soon as she saw him, she immediately began to say, that’s him, how
       could you do that to me. She became very excited. I advised her to calm
       down, take a breath. And then I asked again, could you please just make
       sure. Are you sure this is the guy? She said, yes. He went through my
       pockets. This is the guy.

Although Johnson denied knowing anything about the robbery, the record is replete with

credible evidence that Johnson was involved in these crimes.

       {¶23} Johnson was also convicted of kidnapping in violation of R.C.

2905.01(A)(1), which states that “[n]o person, by force [or] threat * * * shall * * *

restrain the liberty of another person * * * to facilitate the commission of any felony.”
Here, Thomas testified that Johnson and his accomplice restrained her with a gun in order

to commit a theft offense. Johnson verbally demanded that she be quiet and ordered her

not to move.      Therefore, there is sufficient evidence to support the kidnapping

conviction.

      {¶24} Johnson does not dispute that Thomas was kidnapped and robbed at

gunpoint. He claims she has misidentified him as one of the culprits. However, as

previously explained, Thomas’s positive identification of Johnson is reliable and credible.

 Therefore, the kidnapping conviction is also supported by the manifest weight of the

evidence.

       {¶25} Finally, Johnson was convicted of two firearm specifications in violation of

R.C. 2941.145, which required proof that “the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the offense and

displayed the firearm, brandished the firearm, indicated that the offender possessed the

firearm, or used it to facilitate the offense.” As previously stated, although there was no

evidence that Johnson held the firearm, he nevertheless had control over it pursuant to the

complicity statute because there was credible evidence that his accomplice used a firearm

to commit the robbery. Quarterman, 2013-Ohio-4307 at ¶ 18; R.C. 2929.03. Therefore,

the firearm specifications are also supported by both sufficient evidence and the manifest

weight of the evidence.

       {¶26} The second and third assignments of error are overruled.

                                       Sentencing
       {¶27} In the fourth assignment of error, Johnson argues the trial court erred by

sentencing him to consecutive prison terms without making the findings required under

R.C. 2929.14(C)(4).      However, the trial court sentenced Johnson to three years

incarceration for aggravated robbery and three years incarceration for kidnapping, to run

concurrently. Each conviction included a three-year firearm specification, pursuant to

R.C. 2941.145. Under 2929.14(B)(1)(a)(ii), a court must impose a three-year prison term

upon an offender who is convicted of a felony and an attendant firearm specification

under R.C. 2941.145. Additionally, the mandatory three-year firearm specification must

be served consecutively to any prison term imposed for the underlying felony. R.C.

2929.14(C)(1)(a).     Therefore, the findings set forth in R.C. 2929.14(C)(4) are

inapplicable here. The court properly ordered the three-year mandatory prison sentence

for the firearm specifications to run consecutive to the underlying offense.

       {¶28} The fourth assignment of error is overruled.




                                Merger of Allied Offenses

       {¶29} We nevertheless find plain error in the trial court’s failure to merge the

aggravated robbery and kidnapping convictions for sentencing as required by R.C.

2941.25. Many courts have merged kidnapping and aggravated robbery convictions

where the defendant restrained the victim while robbing him. State v. Walker, 8th Dist.

Cuyahoga No. 94878, 2011-Ohio-1556, ¶ 41. In State v. Logan, 60 Ohio St.2d 126, 397

N.E.2d 1345 (1979), the Supreme Court explained: “[W]hen a person commits the crime
of robbery, he must by the very nature of the crime, restrain the victim for a sufficient

amount of time to complete the robbery.” Id. at 131. In a later case, the Ohio Supreme

Court stated that “implicit within every robbery (and aggravated robbery) is kidnapping.”

State v. Jenkins, 15 Ohio St.3d 164, 198, 473 N.E. 2d 264 (1984), fn. 29. For this reason,

we have, sua sponte, found error in the trial court’s failure to merge aggravated robbery

and kidnapping convictions at sentencing. See State v. Walker, supra; State v. Havergne,

8th Dist. Cuyahoga No. 95090, 2011-Ohio-935.

      {¶30} In this case, Johnson restrained the victim to rob her. Although the court

imposed concurrent sentences for the aggravated robbery and kidnapping convictions, “it

is plain error to impose multiple sentences for allied offenses of similar import, even if

the sentences are run concurrently.” Walker at ¶ 42, citing State v. Crowley, 151 Ohio

App.3d 249, 255, 2002-Ohio-7366, 783 N.E.2d 970 (10th Dist.). Therefore, the trial

court should have, sua sponte, merged the kidnapping and aggravated robbery convictions

for purposes of sentencing.

      {¶31} Judgment affirmed in part, reversed in part, and remanded to the trial court

for the limited purpose of merging the allied offenses and to allow the state to select the

merged offense for resentencing.

       It is ordered that appellant and appellee share 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the common

pleas court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, SR., J., CONCUR
