[Cite as State v. Ndiaye, 2014-Ohio-3206.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :                 No. 13AP-964
                                                                   (C.P.C. No. 12CR-2072)
v.                                                  :
                                                               (REGULAR CALENDAR)
Mohamed A. Ndiaye,                                  :

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                       Rendered on July 22, 2014


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Barnhart Law Office LLC, and Robert B. Barnhart, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas


LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Mohamed A. Ndiaye, appeals from a judgment entry
of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury
verdict, of one count of aggravated robbery with a firearm specification, a felony of the
first degree, and one count of robbery with a firearm specification, a felony of the second
degree. Appellant's convictions were not against the manifest weight of the evidence and
the trial court did not err in overruling objections regarding prosecutorial misconduct.
However, the trial court plainly erred in failing to merge appellant's convictions for
sentencing. Therefore, we affirm in part and reverse in part.
No. 13AP-964                                                                             2

I. Facts and Procedural History
       {¶ 2} Through an indictment filed April 26, 2012, the state charged appellant with
one count of aggravated robbery with firearm specification, in violation of R.C. 2911.01,
and one count of robbery with firearm specification, in violation of R.C. 2911.02. The trial
court granted the state's motion to join, for purposes of trial, the charges in the April 26,
2012 indictment with charges from two other cases pending against defendant; however,
this appeal concerns only the charges in the April 26, 2012 indictment.
       {¶ 3} At a trial commencing March 18, 2013, the victim, Christian Dawson,
testified that on March 19, 2012 while he was outside using the telephone, a gray, new
model Impala with two occupants pulled up near where he was sitting, and the passenger
asked him for directions.    Dawson stated he saw the passenger get out of the vehicle.
Dawson testified he went back to his phone call but he heard footsteps behind him a few
seconds later and then "a gun in my face telling me I need everything." (Tr. Vol. III, 309.)
Although Dawson said he did not get a good look at the driver of the vehicle, Dawson
identified appellant in court as the man who was in the passenger seat of the Impala and
the same man who got out of the car, held a gun pointed in Dawson's face, and demanded
all of his possessions.
       {¶ 4} The jury ultimately returned guilty verdicts for appellant as to both the
aggravated robbery and the robbery charges, both with firearm specifications. Appellant's
co-defendant, Angelo Mills, was found not guilty. The other charges tried along with the
April 26, 2012 indictment were additional charges of robbery and aggravated robbery
with different victims, and the jury either found appellant not guilty or was unable to
reach a verdict.
       {¶ 5} Following a sentencing hearing, the trial court, in an October 22, 2013
judgment entry, sentenced appellant to seven years for the aggravated robbery conviction
and seven years for the robbery conviction to run concurrently with each other and
consecutive to three years for the firearm specification, for a total of ten years
imprisonment.      The trial court issued a corrected and amended judgment entry on
October 31, 2013 and a second corrected and amended judgment entry on November 1,
2013 to correct clerical errors. Appellant timely appeals.
No. 13AP-964                                                                              3

II. Assignments of Error
       {¶ 6}   Appellant assigns the following three assignments of error for our review:
               1. Appellant's convictions were against the manifest weight
                  of the evidence.

               2. The trial court erred when it overruled objections to
                  prosecutorial misconduct during closing arguments.

               3. The trial court plainly erred when it failed to merge
                  appellant's conviction for robbery with his conviction for
                  aggravated robbery.

III. First Assignment of Error – Manifest Weight of the Evidence
       {¶ 7} In his first assignment of error, appellant argues the manifest weight of the
evidence does not support his convictions.
       {¶ 8} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). "When
a court of appeals reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as a ' "thirteenth juror" ' and
disagrees with the factfinders's resolution of the conflicting testimony." Thompkins at
387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). Determinations of credibility and
weight of the testimony are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d
230 (1967), paragraph one of the syllabus.         Thus, the jury may take note of the
inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's
testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.
Antill, 176 Ohio St. 61, 67 (1964). An appellate court considering a manifest weight
challenge "may not merely substitute its view for that of the trier of fact, but must review
the entire 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. Harris, 10th Dist. No.
13AP-770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387. Appellate courts should
reverse a conviction as being against the manifest weight of the evidence in only the most
No. 13AP-964                                                                                4

" 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 9} Appellant contends the jury lost its way in evaluating the credibility of
Dawson's testimony. First, appellant argues Dawson's in-court identification should carry
no weight because it was not accompanied by an earlier, out-of-court identification.
However, a witness' inability or unwillingness to identify a defendant in a pre-trial setting
does not necessarily discredit an in-court identification. See, e.g., State v. Dennis, 10th
Dist. No. 05AP-1290, 2006-Ohio-5777, ¶ 13 (witness' in-court identification does not
render verdict against the manifest weight of the evidence even though witness was
unable to identify the defendant in a photo array prior to trial); State v. Johnson, 163
Ohio App.3d 132, 2005-Ohio-4243, ¶ 57 (10th Dist.) (finding a witness' failure to identify
a defendant in a black-and-white photo array prior to trial did not discount the witness'
confident, in-person identification of the defendant during a bindover hearing). The jury
was still able to assess Dawson's credibility as to his in-court identification as it related to
his testimony as a whole and the other evidence at trial.
       {¶ 10} Appellant next argues Dawson's testimony was not credible because he
admitted in his testimony that he described the Impala as being gold in color at some
point after the robbery even though he testified in court that the car was gray. We again
note that the jury may take note of inconsistencies and resolve them accordingly. Raver
at ¶ 21. Further, Dawson offered a credible explanation of his description of the vehicle
during his testimony. When he first reported the robbery to police, Dawson described the
car as being gray in color. A few days later, he saw another Impala that looked similar to
the car from the night of the robbery but was more gold in color. He called police to tell
them that it was possible the car may have been gold because the robbery occurred late at
night, and the street light could have possibly made a gold car appear gray. He testified
unequivocally, however, that the night of the robbery, the car appeared to be gray. The
jury was free to believe this plausible explanation of why Dawson wavered before trial on
what color the car was.
       {¶ 11} Lastly, appellant argues Dawson's testimony was not credible because he
once described the perpetrator as appearing to be about 14 years old. Dawson did not
state unequivocally that the man who robbed him was 14 years old; rather, Dawson
No. 13AP-964                                                                            5

described his assailant as having the appearance of a youthful person, "like he was in his
teens," and Dawson affirmatively identified appellant as the man who robbed him.
(Tr. Vol. III, 316.) The fact that appellant is older than 14 years of age does not render
Dawson's testimony incredible. The jury was able to observe appellant in court and weigh
Dawson's description of his assailant along with the rest of the testimony.
       {¶ 12} In summation, the jury here did not lose its way in finding Dawson's
testimony to be credible. Accordingly, the manifest weight of the evidence supports
appellant's convictions, and we overrule appellant's first assignment of error.
IV. Second Assignment of Error – Prosecutorial Misconduct
       {¶ 13} In his second assignment of error, appellant argues the trial court erred in
overruling his objections to prosecutorial misconduct during closing argument, thereby
denying him a fair trial. More specifically, appellant argues the prosecutor's statements
during closing argument improperly shifted the burden of proof to the defense.
       {¶ 14} The test for prosecutorial misconduct in closing arguments "is whether the
remarks were improper and, if so, whether they prejudicially affected substantial rights of
the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States v. Dorr,
636 F.2d 117 (5th Cir.1981). " '[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.' " State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38,
quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not
grounds for reversal unless the defendant has been denied a fair trial. State v. Mauer, 15
Ohio St.3d 239, 266 (1984).
       {¶ 15} During the defense's closing argument, defense counsel stated "Detective
Billups, who was a lead detective on [these] cases, didn't come in here and testify."
(Tr. Vol. V, 531.) When read in context, the implication of this statement was that the
state had something to hide by not calling that witness. In response, during the state's
closing argument, the prosecutor stated:
              Now, let's be clear here. I'm the only person with the burden
              of proof here. The defense counsel, they don't have to prove
              anything. But they have the same ability to call witnesses as I
              do. They have the same ability to give you evidence that I do,
              and that was proven, because [defense counsel] called
              [another witness]. * * * If Detective Billups had something to
No. 13AP-964                                                                             6

              hide, they should have brought him in here and drilled him
              like they did all of the victims, put him through the ringer and
              showed you if there is something he's trying to hide.

(Tr. Vol. V, 547.) Defense counsel objected to these statements as an improper shifting of
the burden of proof, and the trial court overruled that objection. Appellant argues the
trial court erred in overruling the objection and, in so doing, gave approval to the
prosecutor's comments in the jury's eyes. State v. Keenan, 66 Ohio St.3d 402, 410 (1993).
       {¶ 16} "The prosecution is entitled to a certain degree of latitude in summation."
State v. Loughman, 10th Dist. No. 10AP-636, 2011-Ohio-1893, ¶ 24, citing State v. Grant,
67 Ohio St.3d 465, 482 (1993). The prosecution "may draw reasonable inferences from
the evidence presented at trial, and may comment on those inferences during closing
argument." State v. Treesh, 90 Ohio St.3d 460, 466 (2001), citing State v. Smith, 80 Ohio
St.3d 89, 111 (1997).
       {¶ 17} We do not find the prosecutor's statement here to be improper. "It is long-
standing precedent that the state may comment upon a defendant's failure to offer
evidence in support of its case." State v. Collins, 89 Ohio St.3d 524, 527 (2000), citing
State v. D'Ambrosio, 67 Ohio St.3d 185, 193 (1993); State v. Williams, 23 Ohio St.3d 16,
20 (1986); State v. Petro, 148 Ohio St. 473, 498 (1947); and State v. Champion, 109 Ohio
St. 281, 289-90 (1924). "Such comments do not imply that the burden of proof has
shifted to the defense," and "the prosecutor is not precluded from challenging the weight
of the evidence offered in support of an exculpatory theory presented by the defense."
Collins at 527.
       {¶ 18} As the prosecutor explained to the trial court, it was defense counsel who
suggested the state had something to hide by not calling Detective Billups as a witness.
The state had a right to respond to that comment. Moreover, the prosecutor's wording of
his response did not improperly shift the burden of proof to appellant. The prosecutor
stated twice that only the state has the burden of proof and explained it was not
attempting to shift the burden of proof but only responding to defense counsel's
implication that the state was hiding something.
       {¶ 19} Because the prosecutor's comments were not improper, they did not operate
to render appellant's trial unfair, and the trial court did not err in overruling appellant's
objection. Accordingly, we overrule appellant's second assignment of error.
No. 13AP-964                                                                              7

V. Third Assignment of Error – Failure to Merge
       {¶ 20} In his third and final assignment of error, appellant asserts the trial court
committed plain error by failing to merge the aggravated robbery and robbery counts for
sentencing.
       {¶ 21} The November 1, 2013 corrected and amended judgment imposes a
sentence of seven years as to the robbery charge and seven years as to the aggravated
robbery charge concurrently with each other and consecutive to the three-year sentence
for the firearm specification, for a total of ten years. There is no mention of merger of the
offenses.
       {¶ 22} "The federal and state constitutions' double jeopardy protection guards
citizens against cumulative punishments for the 'same offense.' " State v. Hall, 10th Dist.
No. 05AP-957, 2006-Ohio-2742, ¶ 16, citing State v. Moss, 69 Ohio St.2d 515, 518 (1982).
Consistent with those provisions, Ohio's multiple count statute, R.C. 2941.25, states that
where a defendant's same conduct "can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one."
       {¶ 23} Here, both of appellant's convictions for aggravated robbery and robbery
stem from the single animus of appellant's demanding Dawson's possessions at gunpoint.
The state properly concedes appellant's convictions for robbery and aggravated robbery
should have been merged under R.C. 2941.25, as robbery and aggravated robbery "are
allied offenses of similar import, and therefore a defendant cannot be convicted of both
offenses when both are committed with the same animus against the same victim." State
v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, paragraph one of the syllabus.
       {¶ 24} Because appellant did not object to the trial court's failure to merge his
convictions for purposes of sentencing, our review is limited to plain error. State v.
Adams, 10th Dist. No. 13AP-783, 2014-Ohio-1809, ¶ 6, citing State v. Taylor, 10th Dist.
No. 10AP-939, 2011-Ohio-3162, ¶ 34. A trial court's failure to merge convictions on allied
offenses constitutes plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1,
¶ 31. While the trial court imposed concurrent sentences for the robbery and aggravated
robbery charges, the failure to merge is still reversible plain error because "even when the
No. 13AP-964                                                                          8

sentences are to be served concurrently, a defendant is prejudiced by having more
convictions than are authorized by law." Id.
       {¶ 25} Because the judgment entry wrongfully sentenced appellant on each
conviction, we find the trial court committed plain error in failing to merge appellant's
convictions of robbery and aggravated robbery. Accordingly, we sustain appellant's third
assignment of error and remand this matter to the trial court with instructions to
resentence appellant through a judgment entry that properly reflects merger of the
robbery and aggravated robbery counts for purposes of sentencing.
VI. Disposition
       {¶ 26} Having overruled appellant's first two assignments of error but sustained
appellant's third assignment of error, we affirm in part, reverse in part, and remand this
matter to the Franklin County Court of Common Pleas for resentencing with instructions
consistent with this decision.
                                        Judgment affirmed in part and reversed in part;
                                                     cause remanded with instructions.

                            KLATT and DORRIAN, JJ., concur.
