[Cite as State v. Jones, 2018-Ohio-2330.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  Appellate Case Nos. 27506 & 27507
                                                  :
 v.                                               :  Trial Court Case No. 16-CR-2227 &
                                                  :  2015-CR-2564
 WAYMON JONES                                     :
                                                  :  (Criminal Appeal from Common Pleas
         Defendant-Appellant                      :  Court)
                                                  :
                                             ...........

                                            OPINION

                              Rendered on the 15th day of June, 2018.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, and MICHAEL
J. SCARPELLI, Atty. Reg. No. 0093662, Montgomery County Prosecutor’s Office,
Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor,
Dayton, Ohio 45402
       Attorneys for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

                                            .............
                                                                                       -2-


HALL, J.

      {¶ 1} This matter comes before us on two consolidated appeals by defendant-

appellant Waymon Jones, Jr.

      {¶ 2} In appellate case number 27506, Jones appeals from his conviction and

sentence on one count of murder, two counts of felonious assault, one count of having a

weapon while under disability, and two firearm specifications. In appellate case number

27507, Jones appeals from the trial court’s revocation of community-control sanctions

and its imposition of an eleven-month prison sentence.

      {¶ 3} Although Jones has appealed from two judgments, his appellate brief does

not address the community-control case. With regard to the homicide case, he advances

two assignments of error. First, he challenges the legal sufficiency and manifest weight

of the evidence to support his conviction on the two felonious assault counts. Second, he

contends the trial court erred in overruling his motion to suppress photo-identification

evidence.

      {¶ 4} The charges against Jones stemmed from a shooting that occurred on the

evening of July 8, 2016. Jones was a passenger in a car driven by a friend, Rontae Peaks.

They were planning to meet two other people, Erwin Briggs and Joshua Cohen, at a

residence on Leland Avenue to spend the evening together. Peaks and Jones arrived first

after stopping to purchase alcohol and a bottle of “SoBe” drink. Briggs attempted to drive

Cohen to the location, but they had trouble finding it. Cohen became frustrated and had

several telephone conversations with Jones about the meeting place. When Briggs and

Cohen finally arrived around dusk, an argument ensued. Briggs and Peaks testified at

trial that Cohen exited the car and confronted Jones about the directions that had been
                                                                                         -3-


provided. Threats were exchanged, and Jones pulled a handgun from his pants. Peaks

described the weapon as a semi-automatic, nine-millimeter with an extended magazine.

Briggs and Peaks both testified that Jones proceeded to fire a number of shots at Cohen,

who was struck multiple times. He collapsed in the street and later died at the hospital.

Peaks testified that Jones was drunk and “shooting at everybody.” Peaks recalled seeing

Jones fire at Briggs. Peaks also testified that he heard bullets going past his own head

as he ran away. For his part, Briggs testified that he ran away after Jones fired a shot at

him. As Briggs ran, he heard Jones fire several more shots.

       {¶ 5} Shortly after the shooting stopped, Briggs and Peaks returned to the scene.

When police arrived, Jones was gone. Peaks identified Jones as the perpetrator and

provided a detective with a picture of Jones from his cell phone. Briggs subsequently

viewed a photospread at the police department and circled Jones’ picture. At that time,

he described the certainty of his identification as being seven and one-half to eight out of

ten. At trial, Briggs claimed he really was absolutely certain but wanted to “keep it in the

street” and deal with Jones himself. On cross examination, Briggs admitted telling police

and the 911 dispatcher that he did not know who had shot Cohen. He also claimed that

he had identified Jones in the photospread as someone he had seen in the neighborhood,

not necessarily as the shooter. On redirect examination, however, Briggs acknowledged

telling the police officer administering the photospread: “I want to say it’s him.” Briggs

made this statement in reference to Jones’ picture, and he meant that he wanted to say

it was Jones who had done the shooting. (Tr. Vol. II at 441).

       {¶ 6} Investigators recovered ten shell casings from the scene. The nine-millimeter

casings were located in a grassy area, on a sidewalk, and in the street. (Tr. Vol. III at
                                                                                        -4-


567). A detective searching the area used a flashlight because it was dark outside. (Tr.

Vol. IV at 641). Testing established that all of the shell casings were fired from the same

weapon. Witness Dayza Snow testified that she been “trying to get into a relationship”

with Jones in July 2016. She recalled him having a nine-millimeter handgun at her

apartment the day before the shooting. According to Snow, it was stored in a kitchen

cabinet above her refrigerator. While she was out with Jones the evening before the

shooting, he wanted to return to her apartment to get the gun. She refused, and the two

parted company. Snow later returned to her apartment to find her patio door broken and

the gun gone.

       {¶ 7} During their investigation, police found Jones’ fingerprints and DNA on a

SoBe drink bottle left at the shooting scene, and his fingerprint was found on the

passenger door of the car driven by Peaks. In addition, Briggs and Peaks both testified

about Jones making telephone calls to them after his arrest. Peaks testified that Jones

tried to pay him not to come to court. Briggs testified that Jones asked whether he was

going to appear in court and testify.

       {¶ 8} Based on the evidence presented, a jury found Jones guilty of all of the

charges and specifications against him. After merging several counts and specifications

for purposes of sentencing, the trial court imposed an aggregate sentence of forty years

to life. It also imposed a consecutive sentence of eleven months for violating community

control sanctions in a prior case. It imposed a second consecutive sentence of fifteen

months for violating post-release control in yet another case. The combined result was a

total prison term of forty-two years and two months to life. (Doc. #132 at 2).

       {¶ 9} In his first assignment of error, Jones challenges the legal sufficiency and
                                                                                       -5-


manifest weight of the evidence to support two felonious-assault convictions.

      {¶ 10} Jones was convicted of felonious assault for causing or attempting to cause

physical harm to Peaks and Briggs with a deadly weapon. To obtain the convictions, the

Stated relied primarily on the testimony of Peaks and Briggs, both of whom testified that

Jones fired shots at them after shooting Cohen. Jones argues, however, that the

testimony of Peaks and Briggs is inconsistent and lacks credibility. He asserts that the

two men “contradict one another and themselves multiple times” and that their testimony

“flouts common sense.” Jones also contends the physical evidence does not support a

finding that he shot at Peaks and Briggs. He notes that investigators found ten shell

casings at the scene and that Cohen’s autopsy revealed entrance wounds from at least

eight and possibly nine different bullets.1 According to Jones, that leaves at most two

unaccounted-for bullets that could have been fired at Peaks and Briggs, who claimed that

he fired multiple shots at each of them. Jones contends he could not have fired multiple

shots at Peaks and Briggs with only two remaining shots. Therefore, he asserts that his

felonious-assault convictions pertaining to Peaks and Briggs are based on legally

insufficient evidence and are against the weight of the evidence.

      {¶ 11} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d

Dist.2000). “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



1Although Cohen had nine bullet entrance wounds on his body, one of them may have
been a double entry by a single bullet. (Tr. Vol. II at 258, 265-266).
                                                                                          -6-


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.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 12} Our analysis is different when reviewing a manifest-weight argument. When

a conviction is challenged on appeal as being against the weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, 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.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be

reversed as being against the manifest weight of the evidence “only in the exceptional

case in which the evidence weighs heavily against the conviction.” State v. Martin, 20

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

       {¶ 13} With the foregoing standards in mind, we conclude that Jones’ felonious-

assault convictions are supported by legally sufficient evidence and are not against the

weight of the evidence. Having reviewed the testimony of Peaks and Briggs, we see no

meaningful inconsistencies or contradictions, and Jones has not directed us to any

specific issues. As for the shell casings, Jones’ attorney argued to the jury that “[t]he

casings don’t match the number of shots” allegedly fired. (Tr. Vol. IV at 699). That being

so, counsel suggested that no one “was actually shooting at either Erwin Briggs or Rontae

Peaks.” (Id.). In response, the prosecutor pointed out that it was dark outside when a
                                                                                            -7-

detective searched for shell casings with a flashlight. (Id. at 707). The prosecutor

suggested that investigators simply did not find all of the casings. (Id.). Even defense

counsel acknowledged in closing that “you’re going to see things in daylight that you can’t

see at night with a flashlight.” (Id. at 690). The jury also heard testimony that shell casings

may bounce, roll, or be kicked around, and an evidence technician confirmed that it was

dark outside when the casings were collected after 10:00 p.m. (Tr. Vol. II at 273; 294,

338-339).

       {¶ 14} Based on the evidence presented, the jury reasonably could have

determined that Peaks and Briggs were being truthful about Jones firing at them and that

not all of the shell casings were recovered at the scene. The testimony of Peaks and

Briggs, if believed, is legally sufficient to support Jones’ convictions. The convictions also

are not against the manifest weight of the evidence. Failure to recover all of the shell

casings is a plausible rebuttal to Jones’ argument about the number of shots fired, and

the jury was entitled to credit it. The jury did not clearly lose its way and create a manifest

miscarriage of justice in finding Jones guilty. This is not an exceptional case in which the

evidence weighs heavily against his felonious-assault convictions. The first assignment

of error is overruled.

       {¶ 15} In his second assignment of error, Jones contends the trial court erred in

overruling his motion to suppress Briggs’ photo identification of him as the shooter.

       {¶ 16} As set forth above, Briggs viewed a photospread at the police department

and circled Jones’ picture. Jones argues, however, that the identification procedure was

unduly suggestive of his guilt. He asserts that the officer who administered the

photospread referred to him as “the suspect” and wrote “the suspect” near his picture.
                                                                                                -8-


Jones claims these actions suggested to Briggs whose picture to select. Jones further

argues that the identification itself was unreliable because Briggs did not know him very

well and previously had denied knowing the identity of the shooter.

       {¶ 17} “When a witness has been confronted with a suspect before trial, due

process requires a court to suppress the witness’s identification of the suspect if the

confrontation was unnecessarily suggestive of the suspect’s guilt and the identification

was unreliable under the totality of the circumstances.” State v. Harris, 2d Dist.

Montgomery No. 19796, 2004-Ohio-3570, ¶ 19. “The defendant must first show that the

identification procedure was unduly suggestive. If the defendant meets that burden, the

court must then consider whether the identification, viewed under the totality of the

circumstances, is reliable despite the suggestive procedure. If the pretrial confrontation

procedure was not unfairly suggestive, any remaining questions as to reliability go to the

weight of the identification, not its admissibility, and no further inquiry into the reliability of

the identification is required.” (Citations omitted.) Id.

       {¶ 18} The defendant “bears the burden of showing that the identification

procedure was ‘so impermissibly suggestive as to give rise to a very substantial likelihood

of irreparable misidentification’ and that the identification itself was unreliable under the

totality of the circumstances.” State v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL

254144, *2 (Feb. 22, 2002), quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972). “We review a trial court’s refusal to suppress a pretrial identification

for an abuse of discretion.” State v. Harmon, 2017-Ohio-8106, __ N.E.3d __, ¶ 22 (2d

Dist.), citing State v. Wilson, 2d Dist. Montgomery No. 22624, 2009-Ohio-1038, ¶ 19.

       {¶ 19} Unlike most cases involving challenges to photospreads, Jones does not
                                                                                              -9-


argue that the array Briggs viewed was suggestive. Rather, he contends police officer

Jennifer Stack, who administered the array, tainted the process through her actions.

Stack testified during the suppression hearing that detective David House asked her to

act as a blind administrator to show Briggs a photospread. Although Stack had heard

Jones’ name mentioned in connection with the case, she had no idea what he looked like

and did not know whether his picture was in the photospread. In her notes accompanying

the photospread, Stack attempted to write down what Briggs told her as he viewed the

photographs. With regard to photo number two, which was Jones’ picture, Stack wrote:

“Seen this guy before at apartments.” She also wrote, “Behind hookah bar,” and “I want

to say it’s him.” (Suppression Tr. at 13, 21). Briggs circled Jones’ photograph and initialed

it. (Id. at 15). Stack filled in a witness confidence form, indicating that Briggs had identified

Jones as “the suspect.” (Id. at 14). Briggs indicated that his certainty in the identification

was 7.5 or 8 out of 10. (Id.). On cross examination, Stack did not remember whether she

was the one who first referred to Jones or his picture as “the suspect,” but she did not

deny doing so. (Id. at 22). She also acknowledged that Briggs never actually stated that

Jones was the person he saw doing the shooting. (Id.). Instead, Briggs “just said that’s

the guy he recognized in the area[.]” (Id.).

       {¶ 20} After hearing the evidence, the trial court expressed its belief that the

photospread was not unduly suggestive. The trial court tentatively opined that any dispute

about whether Briggs had identified Jones “as the individual accused of the crime” or as

“an individual with whom Mr. Briggs happened to be familiar” went to the weight of the

identification, not its admissibility. (Id. at 56). Upon considering the issue further, the trial

court adhered to its initial impression and overruled the suppression motion. It reasoned
                                                                                         -10-


in part: “The photo array administered to Mr. Erwin Briggs was created in a manner to

eliminate or minimize suggestiveness. Officer Stack administered the photo identification

as a blind administrator. Neither the six pack of photographs nor the administration of the

photo spread contained suggestiveness.” (Doc. #43 at 1).

       {¶ 21} Upon review, we see no abuse of discretion in the trial court’s ruling. The

photospread was not suggestive of Jones’ guilt. Any question about whether Briggs had

identified Jones as the shooter or merely as someone he had seen in the neighborhood

went to the weight and significance of the identification rather than its admissibility. At

trial, Stack and Briggs were examined and cross examined about the issue. For his part,

Briggs asserted that he had identified Jones as someone he had seen in the

neighborhood. (Tr. Vol. II at 438-439). With regard to his statement, “I want to say it’s

him,” Briggs clarified that he meant he wanted to say it was Jones who did the shooting.

(Id. at 441). In any event, we believe the trial court properly treated the issue as one

involving the weight of the evidence, which was for the jury to resolve. 2 The second

assignment of error is overruled.

       {¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                     .............


2  We note that Jones’ assignment of error would fail even if we were to find the
photospread unduly suggestive based on uncertainty about the meaning and significance
of Briggs’ identification. Briggs explained at trial that he knew Jones, having met him
through Joshua Cohen, a mutual friend, the month before the shooting. (Tr. Vol. II at 409,
425). Given that Briggs personally knew Jones, any question about the meaning of Briggs’
pretrial identification could not have impacted the outcome of the case. Briggs testified at
trial that he was absolutely sure Jones was the shooter. He explained that he had been
less forthcoming during the pretrial photo identification because he had “wanted to keep
it in the street” and catch Jones himself. (Id. at 425). Jones also was identified as the
shooter, both before trial and at trial, by Peaks, who knew Jones and was riding in a car
with him just before the shooting.
                                        -11-




DONOVAN, J. and FROELICH, J., concur.


Copies mailed to:

Mathias H. Heck
Heather N. Jans
Michael J. Scarpelli
Jeffrey T. Gramza
Hon. Mary Lynn Wiseman
