[Cite as State v. Lilly, 2018-Ohio-949.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                  :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
SIDNEY D. LILLY                               :       Case No. 2017CA00105
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court
                                                      of Common Pleas, Case No. 2016-
                                                      CR-2132-B




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     March 12, 2018




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN D. FERRERO                                       BERNARD L. HUNT
Prosecuting Attorney                                  2395 McGinty Rd. N.W.
                                                      North Canton, Ohio 44720
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00105                                               2

Baldwin, J.

      {¶1}    Appellant, Sidney Doyle Lilly, III appeals his conviction of one count of

aggravated robbery (R.C. 2911.01(A)(1)) with a firearm specification (R.C. 2941.145),

one count of having weapons while under disability (R.C. 2923.13(A)(3)), one count of

receiving stolen property (R.C. 2913.51(A)), and one count of discharge of a firearm on

or near prohibited premises (R.C. 2923.162(A)(2)) for an aggregate prison term of 16

years. Appellee is the state of Ohio.

                          STATEMENT OF FACTS AND THE CASE

      {¶2}    On November 4, 2016, at approximately 9:00 PM, two masked men dressed

in black came into the Thornes IGA store located at 653 South Union Street in Alliance.

One was armed with a sawed-off shotgun, while the other had a chrome snub-nosed

revolver. The man armed with the sawed-off shotgun ordered two store employees and

two customers to drop to the ground. While the man armed with the shotgun kept watch,

the other masked man jumped over the counter and took $44.00 from the cash register,

then both left the store. The Alliance Police Department responded to the scene and

gathered names and statements from the employees and customers.

      {¶3}    At approximately 11:30 p.m. on the day of the robbery, the Alliance Police

Department received a report of a suicidal man with a gun at 1208 Freedom Avenue, a

short distance from Thornes IGA. Several officers responded to the scene where they

found appellant, apparently intoxicated, on the front porch of the residence. Appellant

was secured, but did not possess a weapon. The officers did locate a silver revolver, on

the ground, about five feet from where the appellant was standing. After speaking with

the witnesses, the officers determined that appellant had been brandishing the weapon
Stark County, Case No. 2017CA00105                                                    3


earlier that evening frightening the persons in the home.          Some of the witnesses

persuaded appellant to give them the gun, but he became more agitated so they agreed

to return it if he agreed to leave the residence. The witnesses reported that he left the

home and fired the weapon into the air.

       {¶4}   The Alliance police department discovered the weapon was loaded and one

chamber contained a spent shell. They also confirmed the weapon was operable, that it

had been reported as stolen, and that appellant had prior convictions for drug offenses

that rendered him under a disability regarding possession of weapons. Appellant was

arrested at that time.

       {¶5}   Appellant was tested for gunshot residue and the results confirmed he had

fired a weapon recently.     Captain Hilles of the Alliance police department spoke to

appellant about the discharge of the gun and appellant initially denied that he had

possession of it. He then admitted that he had been given the gun earlier that day and

that his girlfriend had knocked it from his hand when the police arrived to avoid any conflict

with the officers.

       {¶6}   Captain Hilles had prior contact with appellant and, based upon that history,

he thought that appellant might have some information regarding the robbery at Thornes

IGA.   Appellant initially denied knowledge of the robbery, but when Captain Hilles

suggested that any assistance he provided might be considered in calculating bond for

the weapons charge, appellant said that Rkel Black committed the robbery. Appellant

explained that he was at his mother's residence on Summit Street when Rkel Black

appeared with a sawed-off shotgun that was used in the robbery. Appellant denied

knowing the identity of Black’s accomplice, but stated that Black would tell Captain Hilles.
Stark County, Case No. 2017CA00105                                                  4


       {¶7}   A confidential informant, later identified as Brianna Benjamin, contacted

Captain Hilles on November 6, 2016 and reported that appellant was involved in the

Thornes IGA robbery with Rkel Black. After receiving that information, Captain Hilles

obtained search warrants for the residences of Rkel Black and appellant. During the

search at Rkel Black's residence the officers found black clothing and a black bandana

matching the description of the clothing of the perpetrators, $33.00 in cash, and a sawed-

off shotgun. The officers also found matching black clothing at appellant’s residence.

       {¶8}   The Alliance Police Department took appellant’s and Black’s cell phones

during the search and obtained a search warrant to review the messages and data on the

phones. They discovered that both men called and texted each other numerous times

from 2:30 p.m. until 8:33 p.m. on the day of the robbery. The communication between the

two ceased from 8:33 p.m. until 9:44 p.m. and no calls or messages were made from

appellant’s phone during that period. After 9:44 p.m. until midnight, the calls and texts

resumed the pace that existed prior to 8:33 p.m.

       {¶9}   On the day of the Thornes IGA robbery, Brianna Benjamin was talking,

messaging, and texting with appellant throughout the day. At one point, appellant told

Benjamin that he was going "to hit a lick" later that day, meaning that he was going to rob

a store or a house. Between 9:30 p.m. and 10:00 p.m. that night, appellant met Ms.

Benjamin at the apartment of a friend, X'Arrianna "Pumpkin" Fisher. When Benjamin

arrived, she entered the apartment with appellant and Black. Black was acting “paranoid,

and Benjamin asked him “what was wrong.” Black responded by pulling a shotgun from

inside his pants leg. Appellant then pulled a small gun from the pocket of his hoodie. The

men then explained to Benjamin that they had "hit a lick" that night, but only got $40.00.
Stark County, Case No. 2017CA00105                                                5


       {¶10} Appellant’s mother, Pecorial Lilly, and her friend, Patricia Freeman, claim

that appellant was at his mother's home on the night of the robbery beginning late in the

afternoon and until 11:00 p.m. that night.

       {¶11} The grand jury indicted appellant on 5 counts: aggravated robbery (R.C.

2911.01(A)(1)) (with a firearm specification (R.C. 2941.145)), having weapons while

under disability (R.C. 2923.13(A)(3)), receiving stolen property (R.C. 2913.51(A)),

aggravated menacing (R.C. 2903.21(A)), and discharge of a firearm on or near prohibited

premises. (R.C. 2923.162(A)(2)). The case was presented to a jury on May 9, and May

10, 2017.

       {¶12} The state dismissed the aggravated menacing charge and the jury

convicted appellant on the remaining counts. Appellant was sentenced to an aggregate

prison term of sixteen years. Appellant filed his notice of appeal on June 22, 2017 and

submitted two assignments of error:

       {¶13} I. THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL.

       {¶14} II. THE TRIAL COURT'S FINDING OF GUILT WAS AGAINST THE

MANIFEST WEIGHT          OF THE EVIDENCE           PRESENTED, THUS WAS NOT

SUPPORTED BY SUFFICIENT EVIDENCE OF GUILT.

                                   STANDARD OF REVIEW

                         INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶15} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Stark County, Case No. 2017CA00105                                                   6


assessing such claims, "a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'" Id. at 689, citing Michel v. Louisiana, 350 U.S.

91, 101, 76 S.Ct. 158, 100 L.Ed.2d 83 (1955). "There are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would

not defend a particular client in the same way." Strickland, 466 U.S. at 689. The question

is whether counsel acted "outside the wide range of professionally competent

assistance." Id. at 690. Even if a defendant shows that counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this "actual

prejudice" prong, the defendant must show that "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694.

       {¶16} Appellant contends that trial counsel was ineffective for failing to move to

suppress statements he made to the Alliance Police because appellant was intoxicated

and possibly suicidal. Appellant offers no authority to support his contention that the

statements would have been suppressed as a result of his intoxication or emotional state

at the time he spoke with Alliance police, and the record does not contain any evidence

that would suggest police misconduct.

       {¶17} Further, Appellant does not describe how the outcome of the case would

have been altered had the trial court prohibited the admission of his statements. During

his conversation with Captain Hilles he denied any participation in the robbery and

implicated Rkel Black and another person he claimed not to know. He stated he was at
Stark County, Case No. 2017CA00105                                                    7


his mother’s when the robbery occurred and made no admissions that could be described

as prejudicial. Appellant does not explain how the exclusion of these statements would

have impacted the outcome of the trial and, after review of the record, we cannot agree

that the failure to seek suppression of the statement was prejudicial. “**** [W]hen a record

reveals no evidence of police threats or promises and the statement itself appears

voluntary and consistent with the evidence, “... [trial counsel] could well ... decide[ ] that

the motion was futile.” Flors, 38 Ohio App.3d at 139, 528 N.E.2d at 956, as cited in State

v. Steel, 3rd Dist. Defiance No. 4-96-29, 1997 WL 661108, *2, State v. Wharf, 86 Ohio

St.3d 375, 1999-Ohio-112, 715 N.E.2d 172 (1999). The record in this case discloses no

evidence of police threat or promise and his statements were not incriminating. We

cannot conclude from the evidence that counsel acted incompetently. “We will not

second-guess the strategic decisions counsel made at trial even though appellate counsel

now argue that they would have defended differently.” State v. Post (1987), 32 Ohio St.3d

380, 388, 513 N.E.2d 754, 762 as cited in State v. Mason, 82 Ohio St.3d 144, 169, 1998-

Ohio-370, 694 N.E.2d 932 (1998).

       {¶18} Appellant is also critical of trial counsel’s failure to present the testimony of

X'Arrianna "Pumpkin" Fisher, but he does not provide us insight into the content of that

testimony except to state that she “could have bolstered the Defendant's case and refuted

the time line and testimony established by Breanna Benjamin.” (Appellant’s Brief, p. 4)

The record does reflect that “Pumpkin” did appear at the trial and spoke to defense

counsel regarding her testimony. Appellant’s trial counsel reported to the trial court that

he expected this witness “to say Brianna was never at her house that night” but, “after a

second consultation with her and Mr. Vance, I have decided that we really do not need to
Stark County, Case No. 2017CA00105                                                 8


call Pumpkin.” (Transcript, Vol. No. II, page 291, lines 24-25; page 297, lines 7 through

9). Trial counsel made an informed decision regarding the testimony of Ms. Fisher and,

as we stated above, we will not second-guess the strategic decisions made by trial

counsel even though appellate counsel states he would have taken a different approach.

      {¶19} We hold that appellant has failed to demonstrate that trial counsel was

incompetent and has further failed to demonstrate any reasonable probability the

outcome of the trial would have differed had trial counsel taken filed a motion to suppress

his statements.

      {¶20} For the foregoing reasons, appellant’s first assignment of error is overruled.

                             MANIFEST WEIGHT / SUFFICIENCY

      {¶21} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

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

Supreme Court held as follows: “An appellate court's function when reviewing the

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

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. 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.”
Stark County, Case No. 2017CA00105                                                  9


       {¶22} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶23} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶24} We note that appellant does not present an argument that his conviction for

discharge of a firearm (R.C. 2923.162(A)(2)) having a firearm while under a disability

(R.C. 2913.23(A)(3)) or receiving stolen property (R.C. 2913.51(A)) was against the

manifest weight of the evidence, but appears to address only the aggravated robbery with

the firearm specification charge.      We have closely reviewed the record and found

sufficient evidence to support the conviction for those charges and we find that those

convictions are neither against the manifest weight of the evidence nor were they

supported by insufficient evidence. To the extent that the appellant’s assignment of error

is interpreted as addressing those charges, we overrule the second assignment of error.
Stark County, Case No. 2017CA00105                                                    10


       {¶25} We also overrule the second assignment of error with regard to the

remaining charge, aggravated robbery with a weapons specification. Upon careful review

of the record before us, we find sufficient, credible evidence on each material element of

aggravated robbery with a weapons specification and this evidence, if believed, would

convince the average mind of appellant's guilt beyond a reasonable doubt.

       {¶26} The state was obligated to prove the following elements to convict the

appellant:

       (A)    No person, in attempting or committing a theft offense, as defined in

       section 2913.01 of the Revised Code, or in fleeing immediately after the

       attempt or offense, shall 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;

R.C. 2911.01(A)(1)]

       {¶27} Appellant argues the evidence presented to the jury was insufficient to

establish that he was responsible for the crime, though he does not deny that the crimes

were committed. Therefore, our review of the record focuses upon evidence regarding

the identity of the perpetrator. We find that the testimony and exhibits received by the jury

provided sufficient evidence for the jury to conclude that appellant was the person who

committed the offenses described. The record contains evidence that established that

appellant resided close to the crime scene, that he possessed clothing that matched the

clothing worn by the perpetrators and that he possessed a weapon that matched the

description of one of the weapons used during the robbery.           Brianna Benjamin, an
Stark County, Case No. 2017CA00105                                                    11


associate of appellant, testified that he told her before the robbery that he intended to “hit

a lick” or commit a robbery. She talked with him after the crime had occurred and he

admitted that he had committed a robbery but only recovered $40.00, an amount

suspiciously close to the actual amount taken from the store.

       {¶28} Appellant contends that the witnesses against him lacked credibility and that

the weight of the evidence is insufficient to support his conviction. We are mindful of the

rule that an appellate court does not substitute its judgment on disputed facts for that of

the trier of fact. State v. Lundy (1987), 41 Ohio App.3d 163, 171. The weight given to the

evidence and the determination of the credibility of the witnesses are within the province

of the jury. State v. Martin (1986), 21 Ohio St.3d 91, 95, aff'd sub nom Martin v. Ohio

(1987), 480 U.S. 228; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the

syllabus. Determinations regarding weight and credibility are within the prerogative of the

jury and we will not substitute our judgment. Having reviewed the testimony contained in

the record, we cannot say that the jury, in resolving conflicts in the evidence, lost its way

and created such a manifest miscarriage of justice to warrant reversal of appellant's

conviction.

       {¶29} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2017CA00105                                    12


      {¶30} The decision of the Stark County Court of Common Pleas is hereby

affirmed. Costs assessed to appellant.

By: Baldwin, J.

John Wise, P.J. and

Earle Wise, J. concur.
