[Cite as State v. Smith, 2012-Ohio-2722.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 10 MA 172
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
TIMOTHY D. SMITH                              )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 09 CR 619

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. J. Dean Carro
                                                   The University of Akron School of Law
                                                   Office of Appellate Review
                                                   150 University Avenue
                                                   Akron, Ohio 44325-2901

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                   Dated: June 13, 2012
[Cite as State v. Smith, 2012-Ohio-2722.]
WAITE, P.J.


                                            Summary

        {¶1}     Appellant Timothy Smith was convicted on charges of armed robbery

and failure to comply with an order or signal of a police officer. Appellant’s defense

centered around the suggestion that his brother, Josiah Smith, actually committed the

crimes. On appeal, Appellant’s four assignments of error challenge the sufficiency

and weight of the evidence supporting both convictions, as well as the trial court’s

decision to admit surveillance photographs and refuse to allow Josiah Smith to

invoke his Fifth Amendment privilege concerning a collateral matter.                Both

convictions were supported by probative evidence on each element of the crimes

charged.       Appellant’s challenge to each conviction goes to the identity of the

perpetrator and not the elements of the offense.          Appellant presented no alibi,

contradictory evidence, or testimony at trial. The state’s uncontradicted evidence,

including the victim’s emphatic identification of Appellant and not his brother as her

assailant, was sufficient to convict.        The convictions were also not against the

manifest weight of the evidence. The trial court’s rulings were within the bounds of

discretion. Appellant’s four assignments of error are without merit and are therefore

overruled.

                                 Factual and Procedural History

        {¶2}     On April 30, 2009 the victim, Trisha Harman, was working the night shift

at Austinwoods Nursing Home in Austintown, Ohio.            Around three o’clock in the

morning she took her break and drove to pick up fast food. She then returned to

Austinwoods and parked at the rear of the parking lot in the designated smoking
                                                                                   -2-

area. She had her keys in the ignition and was listening to the radio but the engine

was off. As she sat in her car with the doors closed, another car pulled up and

parked parallel with and to the right of her car, about two spaces over. The car was

older and gray in color. She thought it was a four door model. She was not initially

concerned by the arrival of another car because it was about the time the laundry

aides came to work. (Tr. Vol. III, p. 496.) According to Ms. Harman, the parking lot

was fairly well lit, but was slightly dimmer in the back where she was parked. She

was nevertheless able to get a good look at the car. (Tr. Vol. III, pp. 498-499.) At

trial, she identified photographs depicting side and rear views of the vehicle

apprehended by the police later that morning as the vehicle driven by her assailant.

The photos she was shown were taken at the Sheetz gas station on the corner of

Mahoning Ave. and State Route 46 in Austintown.

      {¶3}   As Ms. Harman was sitting in her car, she noticed a young African-

American male wearing a white tee shirt and shorts walking toward her from the gray

car. She observed that the man’s hair was in braids and that he was fairly tall. The

man was unfamiliar to her. When he reached her side of the car, he opened the door

and asked her where he was. As she began to respond, he pulled a gun from under

his shirt, jammed it into her side, and demanded her money and her ID. Ms. Harman

was very focused on the gun, but is generally unfamiliar with guns.         The gun

appeared to her to be similar to the older style revolvers in western movies that have

to be cocked to fire. (Tr. Vol. III, pp. 532-533.) She did not recall her assailant

touching anything in her car, although he touched the door initially to open it. Ms.
                                                                                       -3-

Harman gave him the ten dollars in her wallet and when he was not satisfied, an

additional forty dollars from the glove box. Although her ID was also in the glove box,

she hid it under papers because she did not want the assailant to know her address.

(Tr. Vol. III, p. 501.)

        {¶4}    The assailant jammed the gun into her side, grabbed her arm, and told

her that he would shoot her if she didn’t give up her ID. She did not give him the ID.

(Tr. Vol. III, p. 502.) He then took the car keys, her cell phone, cigarettes, and her

food. He briefly considered taking her with him so she could not call the police, and

he asked her if she dated black men. She did not respond. At this point she was

crying and her assailant told her to stay quiet, and that he was “sorry that he had to

do this, but he needed money for his son” and that he would bring “all that stuff” back

tomorrow if she did not call the police. (Tr. Vol. III, p. 503.) He told her he would kill

her or he would send people to kill her if she contacted the police and that he had

“goons” in the area. (Tr. Vol. III, p. 505.) Ms. Harman told him that it was the end of

her break and people might wonder where she was. He finally let go of her and

allowed her to get out of the car and step past him. She hurried away from him as he

stood by her car. When she passed the assailant’s car, she glanced at and tried to

memorize the license plate number. He shouted at her to remember he would kill her

if she called the police. As Ms. Harman was entering the nursing home, her assailant

returned to his own car and exited the parking lot toward Kirk Road.

        {¶5}    Ms. Harman ran into the building and told her supervisor what had

happened. The supervisor called 9-1-1 and handed Ms. Harman the phone. The
                                                                                      -4-

police officer who responded to the scene later described the information Ms.

Harman provided to the dispatcher as “very accurate” descriptions of the car and

license plate, as well as a physical description of her assailant. (Tr. Vol. II, p. 327.)

The license plate number provided by Ms. Harman during the call was EXP 4582.

This information was immediately broadcast and several police officers responded to

the call. She also made a written statement for the officer at the scene and later

gave additional written statements to the detective at the Austintown Township Police

Department.

       {¶6}   Sergeant Hoelzel, who was the midnight shift supervisor on duty at the

time for Austintown Township Police, was the first officer to respond to the call. The

9-1-1 call was received at 3:14 a.m., the officer arrived on the scene at 3:19 a.m. and

interviewed Ms. Harman.       He described Ms. Harman as traumatized but alert,

rational, and capable of giving a coherent statement and communicating good, clear

information. When questioned by the dispatcher and by the officer, Ms. Harman

gave the same description of her assailant: a black male wearing a white shirt, white

shorts, with braided hair and crooked front teeth. The officer stated that Ms. Harman

was especially emphatic about the braids and the teeth.          At the scene he also

examined her car, but did not see any indication that the assailant had left

fingerprints or other evidence, so it was never processed for evidence. The officer

confirmed to the other units responding that the information already broadcast was

apparently accurate and left the scene.
                                                                                     -5-

       {¶7}   Sergeant Hoelzel subsequently attempted to assist other officers in

pursuit of a vehicle travelling eastbound on Mahoning Ave., but was too late to

intercept the suspect.    He returned to the police department.       At 4:16 a.m., in

response to the request of another officer involved in the ongoing investigation of the

robbery, Sergeant Hoelzel ran the plate number of the vehicle he had attempted to

intercept, which had become the subject of a high speed chase.           The computer

identified Josiah Emanual Smith as the owner of the vehicle. The sergeant’s report

of the incident was prepared, approved, and logged that night; the matter then

passed on to the detectives’ division.

       {¶8}   Patrolman Heinz was on duty during the April 29th to April 30th nightshift

and heard the dispatcher describe the suspect over the radio. The description he

recalled was of a black male, wearing a white shirt, white pants or shorts and braided

hair and driving a gray car. He also recalled a possible license plate number for the

vehicle. As he was not actively responding to a call at that time, he decided to drive

around in the area of Austinwoods to see if he could find the suspect.          As the

patrolman turned south on State Route 46 he observed a black male in a white shirt

and tan shorts with braided hair pumping gas into a gray car at a Sheetz gas station

on the corner of Mahoning Ave. and State Route 46 in Austintown. At trial, he was

shown surveillance photos provided by the gas station. He identified the person and

vehicle he observed as well as himself, in his marked police cruiser, as he followed

the individual out of the gas station parking lot. When he first observed the car at the

gas station he radioed the dispatcher to rebroadcast the description so he could
                                                                                     -6-

verity his identification. The license plate number of the vehicle he observed was

EPX 5482 – the same letters and numbers provided by the victim, but with the P and

X and the 4 and 5 transposed.

           {¶9}   When the patrolman verified the description of the assailant and the

vehicle, he activated the lights on the marked cruiser he was driving and pulled

behind the gray car as the suspect was getting into the car. The suspect pulled onto

Mahoning Ave., travelling eastbound.           When the car pulled onto the road, the

patrolman activated his siren and followed the car eastbound toward Youngstown.

The suspect accelerated and continued down Mahoning Ave., weaving in and out of

traffic.    He attempted to make a left turn and failed, running into a curb, then

continued through Youngstown, until ending at Plazaview Court, a housing project.

           {¶10} The patrolman followed the vehicle into a parking lot where the suspect

initially pulled up to a large curb. The patrolman exited his cruiser with his firearm

and ordered the suspect to get out of the car. The suspect then accelerated the

vehicle over the curb and a low wall and down a set of concrete stairs.             The

patrolman initially ran after the car, but as it started down the stairs, he ran back to

his own vehicle to pursue the car at the bottom of the stairs. When the patrolman

and other officers reached the bottom of the stairs in a separate parking lot, the gray

car was there with the driver’s side door open, but the suspect had fled on foot. A

white tee shirt was on the ground near the vehicle. The shirt was not weathered or

wet and did not appear to have been run over, thus it appeared to have been recently

discarded.        (Tr. Vol. III, p. 477.)   Due to the shirt’s proximity to the car and
                                                                                      -7-

unweathered state, it was believed to have been left by the suspect as he fled and

was collected as evidence.      A K-9 unit arrived and tracked the suspect to an

apartment block but could not identify which, if any, apartment the suspect entered.

Four .38 caliber bullets were recovered from the car, as well as a black cellular

phone. The car was towed as evidence.

        {¶11} Ms. Harman testified at trial that she went to the Austintown Township

Police Department later that day, April 30, 2009 and was shown a photo line-up. She

identified the second photograph in the line-up based on the facial expression of the

man depicted.     Although she conclusively identified the second image, she was

concerned because the person she recognized did not have braids and her assailant

wore his hair braided. (Tr. Vol. III, pp. 510-512.) She explained her concern about

the change in hairstyle to the police detective.       She met the same detective,

Detective Kosco, again the next day.

        {¶12} At the second meeting, on May 1, 2009, she was shown a different

photograph, this time a candid photograph, by Detective Kosco. The man in the

photograph had braids, and this time she stated she was “[o]ne hundred percent”

certain that the man in the photograph was the man who robbed her. (Tr. Vol. III, p.

514.)   That same day, at the police station, she met Josiah Smith (“Josiah”) in

person. Seeing him in person, observing his height, weight and appearance at that

time, she said she was certain he was not the man who robbed her. (Tr. Vol. III, pp.

564-565.) Appellant Timothy Smith and Josiah Smith, the owner of the car and who

the victim initially identified as her assailant, are brothers. During her testimony, Ms.
                                                                                    -8-

Harman noted that the two brothers had similar features when their photographs

were placed side by side. (Tr. Vol. III, p. 565.) Apart from the robbery she said she

did not recognize or know either the first or the second man she identified as her

assailant. She never recovered any of the property that was taken from her that

night. At trial she re-identified Appellant, Timothy Smith, as the man who robbed her

and reiterated that she was one hundred percent certain the identification was

correct. (Tr. Vol. III, pp. 516; 565.)

       {¶13} At trial, Josiah Smith did not testify voluntarily, but had to be

subpoenaed. According to his testimony, in April of 2009 he owned two cars: a ’97

Cutlass and a 1990 Oldsmobile Ciera. Josiah is three years younger than Appellant,

who is his full biological brother. At the time of the robbery, Josiah did not have

children. Appellant had a son. On April 30, 2009, Josiah worked the night shift at a

Burger King in Youngstown, where he was still employed at the time of trial. His time

sheet, which reflects the clock-in and clock-out times recorded by his employer,

indicates that he clocked out at 2:28 a.m. on April 30, 2009.          According to his

testimony, Josiah was driving the Cutlass, not the older Oldsmobile, that night. He

said that he went from work to his girlfriend’s house and then home.

       {¶14} In April of 2009, Josiah was living on Second St. in Youngstown with his

parents. Appellant was not living there, but appears to have been staying with his

girlfriend in Plazaview Court. Josiah stated that when he and his girlfriend arrived at

his parents’ house they sat in the driveway and continued an argument they had

been having all night. While they were arguing, they heard police sirens and looked
                                                                                     -9-

up to see a car that looked like Josiah’s gray Oldsmobile drive down the street.

Josiah testified that he had loaned the car to his brother, but that as far as he knew

his brother could have allowed someone else to use it that night. When Josiah saw

what looked like his car being pursued by the police, he left his girlfriend to see what

was happening. During cross-examination Josiah explained that he left his girlfriend

in the driveway and drove after the gray car, following it down “to the projects,” but

when he saw the police cruisers he turned around rather than find out for sure if it

was his car. When defense counsel questioned why he decided to return home, he

responded: “I ain’t got no license” and said he “wasn’t trying to get in between that.”

(Tr. Vol. III, pp. 420-421.)

       {¶15} Josiah’s testimony as to the following events is convoluted. According

to Josiah’s testimony during direct and as it was further developed on cross-

examination, at some point later that day (April 30, 2009) he learned through his

sister, his girlfriend and her brother that his name might have been mentioned in

connection with the chase and the car. After learning he might be a suspect, Josiah

and his girlfriend visited his sister. While Josiah remained at his sister’s house, his

sister (who knew the victim’s sister) and Josiah’s girlfriend went to Ms. Harman’s

house, where they confirmed that he had been identified by Ms. Harman as her

assailant. Josiah’s sister and his girlfriend picked him up from his sister’s house and

took him to the police department. Josiah’s sister and girlfriend had arranged that

Ms. Harman and her sister would be at the police department at the same time so

that Ms. Harman could verify whether there had been a misidentification.
                                                                                     -10-

       {¶16} The sequence of events at the police department is unclear from

Josiah’s testimony, however, it appears that he met with Detective Kosco and gave a

statement and that Ms. Harman had a chance to look at him closely and conclude

that he was not the man who robbed her. (Tr. Vol. III, pp. 441-442.) When Josiah

spoke with the detective on May 1, 2009 he told the detective that he saw his brother,

Timothy Smith, driving by the house on Second St. in his gray car and heard sirens.

(Tr. Vol. III, p. 454.) Josiah testified that when he went to the police department he

took his time slip, his driver’s license, and apparently, a photograph of Appellant with

his hair in braids. However, when later questioned by the prosecutor about whether

he brought his driver’s license to the police department, Josiah attempted to invoke

the Fifth Amendment. The court suspended his testimony and the jury was briefly

dismissed. After dismissing the jury, the court discussed the issue off the record with

the prosecutor and defense counsel.

       {¶17} When the record resumed, but before the jury returned, the court

summarized for the record that the state had inquired whether Josiah brought his

driver’s license with him when he went to the police department and Josiah asked if

he could “plead the Fifth” in response to this question. (Tr. Vol. III, p. 396.) The court

stated that the prosecutor indicated to the court that the state had no intention of

charging Josiah in connection with the events of April 30, 2009. The prosecutor

interjected to clarify that the state had determined the perpetrator was Appellant, that

Appellant had been charged and was presently on trial, and that although Josiah was

briefly a suspect, he was no longer being investigated in connection with the robbery.
                                                                                      -11-

The prosecutor also said that the state had no intention of pursuing charges against

Josiah for driving while his license was suspended. It appears from the record at this

point that Josiah was concerned with testimony about his driver’s license because it

was suspended at the time and he was driving illegally. The court then directed the

witness to answer the question concerning his license and told him that he could not

invoke the Fifth Amendment to avoid testifying in response to the prosecution’s

questions.

       {¶18} Defense counsel intervened at this point and asked the court whether

the witness had been granted immunity. The court clarified that immunity was not

being offered, and that from the court’s perspective it was not appropriate under the

circumstances. Defense counsel then asked: “So if he should make inculpatory

statements, either on direct or cross examination, then he’s not immune from

prosecution?” to which the court responded, “[i]f he is going to make any inculpatory

statement as it relates to the incidents of April 30, 2009, he would be able to ask me

at that point in time, ask to invoke his constitutional rights to remain silent.” (Tr. Vol.

III, p. 400.) The record clearly reflects that immunity was not requested by the state

and was not granted by the court.         At this point the jury returned.      Once the

prosecutor resumed questioning, he again asked Josiah whether he took his driver’s

license with him when he went to the Austintown Township Police Department on

May 1, 2009. As no response was forthcoming, the prosecutor asked the court to

direct the witness to respond; the court instructed the witness to respond, and the

witness said “[y]es.” (Tr. Vol. III, p. 401.) No discussion of immunity occurred before
                                                                                  -12-

the jury; the prosecutor’s discussion of the state’s intentions occurred on the record,

but not in front of the jury. Thus, the jury heard the prosecutor ask Josiah a question

about his license, heard Josiah ask to “plead the Fifth” and were dismissed. When

they returned, they heard the prosecutor asking the same question about Josiah’s

driver’s license and the court directed the witness to respond to the question.

       {¶19} The prosecutor attempted to have Josiah authenticate a photograph

which he admitted that he recognized. When the prosecutor asked if it was a picture

of Appellant, Josiah asked if he could remain silent and said he was not comfortable

answering. When the court directed Josiah to answer, he identified from the photo

his brother, his brother’s girlfriend and his brother’s son. The prosecutor then asked

if this was the family photograph that he brought with him on May 1st when he met

the detective. The witness denied bringing the photograph in and said he never gave

it to the police. The prosecutor asked whether Appellant’s hair was braided in the

picture, and Josiah confirmed that his brother’s hair was braided. The prosecutor

asked whether in April of 2009 Josiah also braided his hair. Josiah said no, and

stated that his hair was cut very short at that time.

       {¶20} On cross-examination, Josiah testified that he knew the victim’s sister,

Tiffany, by her first name only. He said that he met her several years earlier with her

then-boyfriend, Jay, who he also knew only by first name. Josiah did not know Ms.

Harman nor did he know that “Tiffany’s sister” worked at Austinwoods Nursing Home.

He also testified that he never drove in Austintown but stayed in Youngstown, even

though his workplace was very close to the border between the two, because he was
                                                                                   -13-

driving without a license. It was also revealed on cross-examination that Josiah’s

sister brought the family photograph that included Appellant when she took Josiah to

the police department on May 1, 2009. (Tr. Vol. III, p. 438.) In September 2009,

Josiah voluntarily met a police detective to have his mouth swabbed for DNA testing.

(Tr. Vol. III, p. 449.)

        {¶21} Detective Sergeant Kosco first became aware of the robbery at eight

a.m. on April 30, 2009, when he began his shift. He interviewed Ms. Harman that

day and again the following day, when he also interviewed Josiah. On May 1, 2009,

the detective was notified twice that people were waiting for him in the lobby. He was

reviewing reports of the incident when the first call came and did not immediately go

down to the lobby. When he entered the lobby he found Ms. Harman and her sister

as well as Josiah, his sister and his girlfriend. He interviewed the parties separately.

He also said he received from Josiah a photo of Appellant with his son and girlfriend

and later showed the photo to Ms. Harman, who changed her identification of her

assailant from Josiah to Appellant based on that photo. He took statements from

both Josiah and Ms. Harman that day. He also learned that Appellant’s girlfriend

lived at Plazaview Court, the housing project where the Oldsmobile was abandoned.

        {¶22} The detective documented and released the gray Oldsmobile to Josiah

on May 7, 2009. The vehicle was not processed for prints because there was no

dispute that Josiah owned it and Appellant often borrowed the car. The detective

also received surveillance footage from Sheetz gas station on a DVD which was

produced by the station’s recording system for the early morning of April 30, 2009.
                                                                                    -14-

He reviewed the footage and printed out the photographic images used by the

prosecutor at trial. Although the tee shirt collected near the abandoned car remained

in evidence, it was not until September of 2009 that DNA swabs were collected from

Appellant and his brother by the detective and the evidence submitted to the lab for

evaluation. When the detective reviewed the evidence on April 30th he noted that the

shirt was improperly placed in a plastic bag. He removed it from the plastic bag and

placed it in a paper bag to preserve the integrity of the DNA. The lab did not indicate

that there was any problem recovering samples from the shirt.

       {¶23} In September of 2009, the tee shirt was sent to North Carolina for

analysis by an independent lab. A supervisor from the lab that analyzed the tee shirt

testified at trial. He described the lab’s accreditation, procedures, and interpreted the

lab’s findings concerning the shirt for the record. The lab received the tee shirt and

two cheek swab samples, one from Josiah and one from Appellant. The lab took

DNA samples from the under arm and neck areas of the tee shirt. The samples from

the shirt were compared with the samples from each man. Josiah was ruled out by

the lab as the source for the DNA that remained on the shirt. Appellant could not be

ruled out. The witness concluded his testimony by saying that the DNA recovered

from both the collar and underarm areas of the shirt was consistent with Appellant,

Timothy Smith, and inconsistent with his brother, Josiah Smith.

       {¶24} On June 25, 2009 Appellant was indicted by a grand jury on three

counts. Count one, aggravated robbery, a first degree felony, is a violation of R.C.

2911.01(A)(1) and carried a firearms specification, a violation of R.C. 2941.145(A);
                                                                                   -15-

count two, kidnapping, also a first degree felony, is a violation of R.C. 2905.01(A)(2),

also carried a firearms specification, a violation of R.C. 2941.145(A). Count three,

failure to comply with an order or signal of a police officer, is a violation of R.C.

2921.331(B), and if found to be committed while fleeing after the commission of a

felony, is a fourth degree felony (otherwise the offense is a first degree

misdemeanor). Trial began October 25, 2010, and continued through October 26,

27, and 28.

      {¶25} Trial concluded with jury verdicts of guilty on counts one and three, as

well as a firearm specification for count one and a finding on count three that the

failure to comply occurred immediately after the commission of an aggravated

robbery, making the violation a felony. Appellant was found not guilty on count two,

kidnapping, which nullified the second firearms specification.        The trial court’s

judgment was entered on November 3, 2010 and sentencing was scheduled. At

sentencing, the victim was unable to appear due to an illness. Appellant declined to

make a statement due to his pending appeal. The judge referred to the firearm

specification and the high speed chase as evidence of Appellant’s disregard for

public safety. He noted that, despite Appellant’s recklessness, no one was physically

injured and that this was the only mitigating factor. Appellant was sentenced to eight

years for aggravated robbery, with an additional three years on the firearms

specification, and eighteen months for failure to comply, all terms to be served

consecutively, followed by five years of post-release control. Credit was given for five

hundred and twenty-four days served. This appeal followed.
                                                                                    -16-

                                 Argument and Law

       {¶26} As a preliminary matter, we note that prior to receipt by this Court all

four volumes of the trial transcripts transmitted to us had the reporter’s seal and

notice cut, and are no longer certified for this reason. In addition to the broken seals,

it appears that pages 699, 700, and 701 were removed and then reinserted after

page 836 and the unnumbered Reporter’s Note concerning exhibits. These pages

are not cited or referenced by Appellant or Appellee in their arguments on appeal.

Without a proper seal and certification of the trial transcript pursuant to App.R.

9(B)(6)(j) it does not appear the transcript can be treated as a complete record of the

trial. Nevertheless, absent evidence to the contrary, the regularity of the proceedings

below is assumed: “all reasonable presumptions consistent with the record will be

indulged in favor of the validity of the judgment under review and of the regularity and

legality of the proceeding below.” In re Sublett, 169 Ohio St. 19, 20, 157 N.E.2d 324

(1959). The defect in the transcript was not identified by either party, and does not

appear to affect this court’s analysis of the arguments presented on appeal.

                              Assignment of Error No. 1

       APPELLANT SMITH’S FOURTEENTH AMENDMENT DUE PROCESS

       RIGHTS WERE VIOLATED WHEN THE COURT FAILED TO

       PROPERLY GRANT A KEY WITNESS A VALID FIFTH AMENDMENT

       CLAIM OF PRIVILEGE ON WHICH TO REFUSE TO TESTIFY OR TO

       PROPERLY GRANT TRANSACTIONAL IMMUNITY BOTH OF WHICH
                                                                                       -17-

       INHIBITED      APPELLANT       SMITH’S      ABILITY    TO    PRESENT        A

       DEFENSE.

       {¶27} In analyzing Appellant’s first assignment of error, we must carefully

scrutinize the record concerning the witness’s attempt to invoke his Fifth Amendment

privilege against self-incrimination and the trial court’s subsequent rulings.         After

already mentioning his driver’s license during the prosecutor’s direct examination,

Josiah Smith was asked whether he brought his license with him to the Austintown

Township Police Department on May 1, 2009. Josiah responded by asking if he

could “plead the Fifth.” (Tr. Vol. III, p. 396.) The court immediately suspended

testimony and dismissed the jury. After the jury left the courtroom, the court and

counsel had a discussion off the record. Before the jury was brought back to the

courtroom, the court resumed the record and clarified that the witness had invoked

the Fifth Amendment to avoid testifying that he brought his driver’s license with him to

the Austintown Township Police Department on May 1, 2009. The court explained

that the state had assured the court that the witness was no longer a suspect in the

robbery and that the prosecutor on behalf of the state said he had no intention of

prosecuting Josiah for driving while his license was suspended.                Josiah was

instructed by the court that he had to answer the prosecutor’s questions but that he

was specifically not immune from prosecution for the robbery and car chase. The

judge directly stated: “If [Josiah] is going to make any inculpatory statement as it

relates to the incidents of April 30, 2009, he would be able to ask me at that point in

time, ask to invoke his constitutional rights to remain silent.” (Tr. Vol. III, p. 400.) The
                                                                                  -18-

state did not request immunity for the witness, the court did not grant immunity, and

the witness was instructed that if he wanted to invoke the Fifth Amendment

concerning the actual robbery, kidnapping or car chase this was still available to him

at the appropriate time. The entire exchange took place while the jury was out of the

courtroom.

      {¶28} In his first assignment of error Appellant advocates a somewhat

convoluted application of an Ohio Supreme Court plurality opinion reversing a trial

court’s decision to grant immunity. State v. Reiner, 93 Ohio St.3d 601, 757 N.E.2d

1143 (2001) (“Reiner II”). Appellant seems not to recognize the roles of the state and

the court with regard to immunity: while the state may seek immunity for a witness, it

is the court that decides whether to grant such immunity, and it is the court’s role in

granting immunity that created the outcome in Reiner. In the original State v. Reiner

(“Reiner I”) the Ohio Supreme Court found that the trial court’s grant of transactional

immunity to a witness who continually asserted her innocence was invalid, because

an innocent witness does not have a “real and appreciable” danger of incrimination,

and therefore cannot invoke the Fifth Amendment privilege; no immunity was

necessary. State v. Reiner, 89 Ohio St.3d 342, 352, 731 N.E.2d 662 (2000). The

Court also found that the improper grant of immunity had prejudiced the rights of the

defendant, who was asserting that this witness had actually committed the crime, and

did not further the cause of justice as prescribed by R.C. 2945.44.

      {¶29} The United States Supreme Court granted certiorari and reversed the

Ohio Supreme Court’s ruling denying an innocent witness a Fifth Amendment
                                                                                      -19-

privilege, emphasizing that the amendment protects the innocent, who “otherwise

might be ensnared by ambiguous circumstances,” as well as the guilty. Ohio v.

Reiner, 532 U.S. 17, 21, 121 S.Ct. 1252, 149 L.Ed.2d 158 (2001) quoting Grunewald

v. United States, 353 U.S. 391, 421, 77 S.Ct. 621, 61 L.Ed.2d 931 (1957). In Reiner

II, on remand from the United States Supreme Court, a plurality of the Ohio Supreme

Court found that, by granting transactional immunity to the witness, the trial court had

improperly suggested to the jury the court’s own belief in the witness’s innocence.

The plurality concluded that in a situation where the jury was faced with two possible

guilty parties, the witness and the accused, it was reversible error for the trial court to

telegraph its belief in the witness’s innocence by granting her immunity.

       {¶30} While a plurality opinion may be persuasive authority, because it lacks

a majority it is not controlling precedent. Hendrick v. Motorists Mut. Ins. Co., 22 Ohio

St.3d 42, 44, 488 N.E.2d 840 (1986) (overruled on other grounds).             Nor, in this

instance, is it in any way applicable. This record clearly reflects that Josiah did not

properly invoke the Fifth Amendment, the state did not request immunity, and the trial

court did not grant immunity. No immunity issue exists. The witness was clearly

instructed that although he could not plead the Fifth Amendment with regard to

questions about the possessions he brought with him to the police department, or to

avoid having to identify his brother in a photograph, he could invoke his right to

remain silent if he felt his testimony inculpated him in any way with regard to the

robbery. No discussion of immunity occurred in front of the jury. No discussion of

the state’s decision not to indict Josiah for the robbery or for driving without a license
                                                                                     -20-

occurred in front of the jury. The suggestion that the court believed the witness was

innocent and telegraphed that belief to the jury that concerned the plurality in Reiner

II is entirely absent, here. Appellant argues that when the court instructed Josiah to

answer the question about his driver’s license, somehow this telegraphed the state’s

belief that Josiah was innocent of the robbery and prejudiced the defense. There are

no set of facts, here, to support such a claim. Josiah was not granted any sort of

immunity and the defense was not impacted in any way. Again, it is not the state’s

implied belief in the witness’s innocence that concerned the plurality in Reiner II, it is

the court’s. Of course, there cannot be a clearer indication of the state’s belief in

Josiah’s innocence than the decision to indict and try Appellant and not his brother.

The state’s decision to indict one brother and not the other is in no way improper.

The trial court’s decision to instruct Josiah to respond to questions concerning the

items he brought with him to the police department and to respond to questions

about the candid photograph of his brother were in no way indicative of any belief in

Josiah’s innocence.      Hence, the trial court’s action were entirely appropriate.

Appellant’s first assignment of error is without merit and should be overruled.

                               Assignment of Error No. 2

       APPELLANT SMITH’S CONVICTION FOR AGGRAVATED ROBBERY

       PER R.C. 2911.01 WAS AGAINST THE MANIFEST WEIGHT OF THE

       EVIDENCE IN VIOLATION OF SECTION 3 ART. IV, OF THE

       CONSTITUTION OF THE STATE OF OHIO, THUS CREATING A

       MANIFEST MISCARRIAGE OF JUSTICE BECAUSE THE GREATER
                                                                                  -21-

      WEIGHT OF THE EVIDENCE SHOWED THAT ANOTHER SUSPECT

      COMMITTED COMMITTED [SIC] THE OFFENSE.

      {¶31} When determining whether a criminal judgment is against the manifest

weight of the evidence, this Court acts as a “thirteenth juror” to determine whether

“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.” State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1983).       The verdict is not against the weight of the

evidence when the record contains evidence which, if believed, will convince the

average person of the accused’s guilt beyond a reasonable doubt. State v. Eley, 56

Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).

      {¶32} “A verdict that is supported by sufficient evidence may still be against

the manifest weight of the evidence.        ‘Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support

one side of the issue rather than the other. It indicates clearly to the jury that the

party having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible evidence

sustains the issue which is to be established before them. Weight is not a question

of mathematics, but depends on its effect in inducing belief.” ’     (Emphasis sic.)”

(Internal citations omitted.) State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-

3282, ¶24, quoting Thompkins, supra, at 387. The weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of fact to determine.
                                                                                    -22-

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus.

       {¶33} Appellant was convicted on one count of aggravated robbery with a

firearms specification. Aggravated robbery is defined by R.C. 2911.01 and 2913.02

which provide in pertinent part:

       No person, in attempting or committing a theft offense * * * or in fleeing

       immediately after the attempt or offense, shall do any of the following:


       (1) Have 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;


       ***


       (C) Whoever violates this section is guilty of aggravated robbery, a

       felony of the first degree.


       2913.02 Theft


       (A)   No person, with purpose to deprive the owner of property or

       services, shall knowingly obtain or exert control over either the property

       or services in any of the following ways:


       (1) Without the consent of the owner or person authorized to give

       consent;


       ***
                                                                                      -23-

       (4) By threat


       (5) By intimidation.

       {¶34} Ms. Harman reported the crime within seconds of the incident. She

provided coherent and consistent descriptions of her assailant to the dispatcher, the

responding officer, and the police detective. She described being threatened, forcibly

detained, and told she would be killed if she did not turn over her money and

property. She was told she would be killed if she told the police what had happened.

Her assailant told her he was committing these crimes to benefit his son.             Ms.

Harman initially identified Appellant’s brother Josiah, the owner of the car used during

the commission of the crime and who was included in the initial photo line-up

because he was the owner of the car and for no other reason or independent

suspicion. The victim had reservations about her initial identification, due to the

hairstyle of her assailant, which were expressed at the time of the identification.

       {¶35} The very next day, when she was shown a photograph of Appellant and

had a chance to see Josiah in person, she identified Appellant, not Josiah, as her

assailant. Since that time and at trial she has consistently identified Appellant as her

assailant with “[o]ne hundred percent” certainty.      The witness acknowledged the

similarity between the two men due to their biological relationship as an explanation

of why her initial identification was mistaken.

       {¶36} At trial, Josiah testified that he never wore his hair in braids. It also

appears that at the time the incident occurred and at the time of trial his hair was too

short to be braided. He also testified that he did not have children, while Appellant
                                                                                 -24-

has a son. Although defense counsel attempted to suggest that Josiah, and not

Appellant, was responsible for the robbery, those attempts were limited to

challenging the credibility of the witnesses and the quality of the investigation.

Probative evidence was presented by the state on every element of the offense. No

alibi, testimony, physical or documentary evidence was offered in support of the

defense theory that Josiah committed the crimes. On appeal, Appellant does not

dispute that the testimony presented supports the actual elements of the crimes

charged. Appellant merely suggests that he was not the perpetrator. The victim

gave direct testimony concerning the events. Appellant’s brother gave direct, though

reluctant, testimony showing that he was not involved. No countervailing evidence or

testimony was offered. The question of the weight and credibility of the evidence was

for the jury to determine. There is no indication in this record that the jury in this

instance lost its way in finding Appellant guilty. Appellant’s second assignment of

error is without merit and is overruled.

                               Assignment of Error No. 3

       THE STATE FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO

       PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT

       SMITH WAS GUILTY OF FAILURE TO COMPLY WITH THE ORDER

       OR SIGNAL OF A POLICE OFFICER THEREBY VIOLATING HIS DUE

       PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT.

       {¶37} The sufficiency of the evidence “is the legal standard applied to

determine whether the case may go to the jury or whether the evidence is legally
                                                                                    -25-

sufficient as a matter of law to support the jury verdict.” State v. Smith, 80 Ohio St.3d

89, 113, 684 N.E.2d 668, 691 (1997). To determine whether sufficient evidence

exists to support a conviction, the reviewing court must determine “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. “[I]n reviewing both weight and sufficiency of the

evidence, the same test is applied. The verdict will not be disturbed unless the

appellate court finds that reasonable minds could not reach the conclusion reached

by the trier of facts.” Id. at 273. “[T]he relevant inquiry does not involve how the

appellate court might interpret the evidence. Rather, the inquiry is whether, after

viewing the evidence in the light most favorable to the prosecution, any reasonable

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id. citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781,

2788, 61 L.Ed.2d 560 (1979).

       {¶38} Failure to comply with an order or signal of a police officer is a violation

of R.C. 2921.331 which provides in part:

       (A) No person shall fail to comply with any lawful order or direction of

       any police officer invested with authority to direct, control, or regulate

       traffic.
                                                                                    -26-

       (B) No person shall operate a motor vehicle so as willfully to elude or

       flee a police officer after receiving a visible or audible signal from a

       police officer to bring the person’s motor vehicle to a stop.

       {¶39} The testimony of the responding officer established that he was fully

uniformed and driving a marked cruiser. Appellant does not dispute the authority of a

uniformed officer on patrol in a marked car to make a stop. The officer pulled behind

the vehicle, verified that it matched the description provided, and turned on his lights,

which should have signaled Appellant to stop. Instead, the suspect pulled his car

into the street, and the officer activated his siren. At this point, there is no question

the officer provided the signal to stop. Instead, a pursuit ensued. At all times during

pursuit both lights and sirens were activated on multiple marked police cruisers.

       {¶40} When the vehicle finally stopped in the Plazaview Court parking lot, the

responding officer exited the cruiser and explicitly instructed the driver to stop. This

testimony is not challenged by the defense.         According to testimony, Appellant

habitually borrowed his brother’s car, and was borrowing his brother’s car that night.

According to the victim, a car with a numbered plate closely matching that of the

vehicle Appellant was driving that night was used to facilitate the commission of an

armed robbery. A car matching the description provided by the victim, with a number

plate bearing the numbers and letters given by the victim and driven by a man

matching the description provided by the victim was identified within blocks of the

location of the crime.    The fact that the car and driver matched the description

provided was verified by the officer present at the scene, who further identified the
                                                                                  -27-

individual and car he saw as well as himself in the security images provided by the

gas station.    The officer pursued the car to Plazaview Court apartments, where,

according to testimony, Appellant’s girlfriend lived. The officer found a shirt bearing

DNA compatible to Appellant’s next to the abandoned car at the apartment complex.

Both Appellant and the car were conclusively identified by the victim as her assailant

and his vehicle.     No contradictory evidence, testimony, or other information was

provided by the defense.

         {¶41} The test for determining whether a conviction is supported by sufficient

evidence is whether, “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.”         Jenks, supra, paragraph two of the

syllabus.    The facts as presented are probative of the essential elements of the

crime.      Appellant’s identity as the driver was, again, an issue for the jury to

determine, based on the evidence presented. The record reflects probative evidence

on each element of the crimes charged and the conviction was therefore based on

sufficient evidence in accordance with the law. Appellant’s third assignment of error

is without merit and is overruled.

                               Assignment of Error No. 4

         THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

         THE    STATE    TO   USE    UNAUTHENTICATED          PHOTOGRAPHIC

         EVIDENCE IN VIOLATION OF OHIO RULE OF EVIDENCE 801.
                                                                                     -28-

       {¶42} In Appellant’s fourth assignment of error he suggests there should have

been an evidentiary challenge to the admissibility of the state’s exhibits 7 through 11.

Appellant actually challenges the sufficiency of the state’s identification of Appellant

as the individual at the gas station who led the patrolman on a high speed chase to

the apartment complex where the car and the tee shirt were recovered.                This

argument was adequately addressed under Appellant’s third assignment of error.

However, we will briefly address the crux of Appellant’s argument, even though not

fully developed by him.

       {¶43} Evid.R. 901, which requires authentication or identification prior to the

admission of photographic evidence, applies to the exhibits at issue here.          Ohio

Evidence Rule 801, mentioned by Appellant, applies to hearsay issues, not to the

admission of photographic evidence.            State’s exhibits 7 through 11 were

photographic images selected and printed by Detective Kosco after reviewing the

security footage provided by the gas station from the night of the robbery. They were

introduced by the patrolman, who appears in some of the images and had first-hand

knowledge of the location and individuals depicted at the time the images were

captured.   Photographs, such as these, are liberally admitted with this type of

sponsoring testimony.      Evidence Rule 901(A) provides:          “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its

proponent claims.” The Rule presents several non-exhaustive illustrations as to how

the general requirement of authentication may be met for various types of evidence.
                                                                                  -29-

Applicable to photographic evidence are numbers 1 and 4, which provide that in

order to authenticate images, testimony must be offered by a “witness with

knowledge” who testifies that “a matter is what it is claimed to be,” and that

“distinctive characteristics and the like” (such as “[a]ppearance, contents, substance,

internal patterns, or other distinctive characteristics, taken in conjunction with

circumstances”) are sufficient to establish that the image shows what the proponent

claims. Evid.R. 901(B)(1); (4).

      {¶44} At trial, the photos were introduced by Patrolman Heinz, who testified

that he saw a man matching the suspect’s description at a Sheetz gas station. Later

testimony from Detective Kosco established that he received the surveillance DVD

from Sheetz and printed out the still images authenticated by the patrolman who

appeared in them. In Ohio, photographic evidence need not be authenticated by the

individual who created the image. Instead, any “witness with personal knowledge of

the subject of the photograph may authenticate it by testifying that the photograph

fairly and accurately depicts the subject at the time the photographs were taken.”

State v. Andric, 7th Dist. No. 06 CO 28, 2007-Ohio-6701, ¶14 accord Midland Steel

Products v. U.A.W. Local 486, 61 Ohio St.3d 121, 130, 573 N.E.2d 98 (1991) and

State v. Hannah, 54 Ohio St.2d 84, 88, 374 N.E.2d 1359 (1978). The patrolman’s

testimony describes what he saw that night and that it is reflected in the photos in

question. The connection between the suspect and Appellant is established by the

testimony of Ms. Harman identifying Appellant as her assailant and the car as her
                                                                                     -30-

assailant’s car, as well as the patrolman verifying the individual’s identification as the

driver in the ensuing car chase.

       {¶45} No objection was raised at trial to the testimony and the use of the

photographs now alleged as error. Appellant has therefore waived all but plain error

review of the admission of the photographs. Crim.R. 52(B). Use of the discretionary

plain error doctrine requires an obvious error that affected substantial rights under

exceptional circumstances. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27,

759 N.E.2d 1240 (2002). An alleged error cannot rise to the level of plain error

unless the outcome clearly would have been different if not for the error. State v.

Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). A testimonial foundation

for these photographs appears in the record.        Whether the man depicted in the

photographs was in fact the assailant and whether the assailant was Appellant were

both questions for the trier of fact. The decision of the trial court to admit the

photographs was not error. Appellant’s fourth assignment of error is without merit

and is overruled.

                                       Conclusion

       {¶46} The state’s uncontradicted evidence as reflected in the record before us

was sufficient to convict. Appellant’s conviction was also not against the weight of

the evidence. There is no issue regarding witness immunity presented by this record.

The admission of the surveillance photographs was not error.            Appellant’s four

assignments of error are without merit and are overruled. The judgment of the trial

court is affirmed in full.
                         -31-


Donofrio, J., concurs.

DeGenaro, J., concurs.
