[Cite as State v. Davis, 2011-Ohio-5630.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.        25399

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
TRAVONTE JAYHSON DAVIS                              COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 09 10 3055

                                  DECISION AND JOURNAL ENTRY

Dated: November 2, 2011



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Travonte Davis, appeals from his convictions in the

Summit County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}     In the early morning hours of September 23, 2009, Airman Vincent Taylor and

his step-brother, Preston Harris, decided to visit a local nightclub to celebrate Airman Taylor’s

birthday. Airman Taylor had recently returned from a tour of duty in Iraq and was on leave from

his Air Force base in Georgia. He drove Harris to Whispers Nightclub in Akron, and the two

remained there for a short time before exiting the club and chatting on the sidewalk. In the midst

of their conversation, two males approached in a vehicle and asked about the nightclub crowd.

The men then parked their vehicle and walked back to where Airman Taylor and Harris were

standing. Airman Taylor and Harris both spoke with the men and had the opportunity to observe

them for several minutes, beginning from the time they first approached in their vehicle.
                                                2


       {¶3}    Not long after the two men approached, Airman Taylor and Harris returned to

Airman Taylor’s vehicle. The two men remained standing on the sidewalk while Airman Taylor

entered his vehicle on the driver’s side and Harris on the passenger’s side. One of the men from

the sidewalk then walked over to the driver’s side of the vehicle and asked Airman Taylor for

money through his partially open window. Sensing danger, Harris told his step-brother to roll up

the window and drive away. Airman Taylor turned his head to look at Harris and, when he

turned back, saw that the man standing outside had stuck the barrel of his gun through the

partially open window. Airman Taylor jerked back reflexively, but the gun fired. The bullet

struck him just below the eye. While Airman Taylor ultimately survived the incident, he lost his

eye and suffered permanent hearing loss and nerve damage as a result. The man who shot

Airman Taylor fled the scene while Harris drove his step-brother to the hospital.

       {¶4}    Harris was unable to help create a sketch of Airman Taylor’s assailant at the

hospital, but informed the police that he would be able to identify the man if he saw a picture of

him. He also gave a description of the assailant’s clothing, which was jeans, a black hooded

sweatshirt, and a black skull cap. The next day, Harris received an anonymous phone call during

which the caller identified his step-brother’s shooter as a man named “VonVon.” Harris relayed

the information to the police, who searched for the moniker in their database and created a photo

array. The police presented the photo array to Harris the following day, two days after the

shooting, and Harris identified Davis as his step-brother’s shooter. The police were not able to

apprehend Davis until October 5, 2009, on which day they chased him on foot and eventually

found him hiding behind a bush. Airman Taylor saw Davis on the news and recognized him as

the shooter.
                                                 3


       {¶5}    On October 16, 2009, a grand jury indicted Davis on the following counts: (1)

attempted murder, in violation of R.C. 2903.02(A)/(B)/R.C. 2923.02; (2) aggravated robbery, in

violation of R.C. 2911.01(A)(1); (3) aggravated robbery, in violation of R.C. 2911.01(A)(1)/(3);

and (4) felonious assault, in violation of R.C. 2903.11(A)(1)/(2). All of the foregoing counts also

contained attendant firearm specifications, in violation of R.C. 2941.145.         The State later

dismissed both the attempted murder count and first count of aggravated robbery.

       {¶6}    On February 12, 2010, Davis filed a motion to suppress, seeking to exclude

evidence of the out-of-court identification that Harris made on the basis that the photo array the

police compiled was impermissibly suggestive and unreliable. The court held a suppression

hearing on March 29, 2010. Subsequently, the court denied the motion to suppress.

       {¶7}    A jury trial began on April 14, 2010, at the conclusion of which the jury found

Davis guilty of aggravated robbery, felonious assault, and the firearm specifications linked to

those offenses. The trial court sentenced Davis to a total of eighteen years in prison.

       {¶8}    Davis now appeals from his convictions and raises four assignments of error for

our review. For ease of analysis, we rearrange the assignments of error.

                                                 II

                                Assignment of Error Number Two

       “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
       PREJUDICIAL ERROR BY ADMITTING EVIDENCE OF AN UNRELIABLE
       IDENTIFICATION BASED UPON AN UNNECESSARILY SUGGESTIVE
       METHOD OF PRESENTING A PHOTO ARRAY THEREBY DEPRIVING
       THE APPELLANT OF DUE PROCESS AND A FAIR TRIAL AS
       GUARANTEED BY THE 5TH, 6TH, AND 14TH AMENDMENT UNDER THE
       UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE
       OHIO CONSTITUTION.”

       {¶9}    In his second assignment of error, Davis argues that the trial court erred by

denying his motion to suppress evidence stemming from the pre-trial identification Harris made
                                                4


two days after the shooting. Specifically, Davis argues that the identification was impermissibly

suggestive and unreliable. We disagree.

       {¶10} The Ohio Supreme Court has held that:

       “Appellate review of a motion to suppress presents a mixed question of law and
       fact. When considering a motion to suppress, the trial court assumes the role of
       trier of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357,
       366. Consequently, an appellate court must accept the trial court’s findings of
       fact if they are supported by competent, credible evidence. State v. Fanning
       (1982), 1 Ohio St.3d 19. Accepting these facts as true, the appellate court must
       then independently determine, without deference to the conclusion of the trial
       court, whether the facts satisfy the applicable legal standard. State v. McNamara
       (1997), 124 Ohio App.3d 706.” State v. Burnside, 100 Ohio St.3d 152, 2003-
       Ohio-5372, at ¶8.

Accordingly, this Court reviews the trial court’s factual findings for competent, credible

evidence and considers the court’s legal conclusions de novo. State v. Conley, 9th Dist. No.

08CA009454, 2009-Ohio-910, at ¶6, citing Burnside at ¶8.

       {¶11} “[C]onvictions based on eyewitness identification at trial following a pretrial

identification by photograph will be set aside on that ground only if the photographic

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

likelihood of irreparable misidentification.” State v. Villa, 9th Dist. No. 05CA008773, 2006-

Ohio-4529, at ¶11, quoting Simmons v. United States (1968), 390 U.S. 377, 384. Furthermore,

“even if an identification procedure is suggestive, it is admissible so long as the challenged

identification itself is reliable.” State v. Reives-Bey, 9th Dist. No. 25138, 2011-Ohio-1778, at

¶13, citing Manson v. Brathwaite (1977), 432 U.S. 98.

       “In order to determine the reliability of the identification, we must consider (1)
       the witness’s opportunity to view the defendant at the time of the incident, (2) the
       witness’s degree of attention, (3) the accuracy of the witness’s prior description,
       (4) the witness’s certainty when identifying the suspect at the time of the
       confrontation, and (5) the length of time elapsed between the crime and the
                                                5


       identification.” (Citations omitted.) State v. Davis (1996), 76 Ohio St.3d 107,
       113.

The trial court here determined that there was nothing suggestive about the photo array itself and

that the State did not employ an impermissibly suggestive identification procedure.

       {¶12} The photo array at issue consists of six photographs, displayed in two columns on

a single sheet of paper. All of the photographs depict males who have short hair of a similar

style, are of a similar complexion, and are positioned in front of a similar, blank backdrop.

While all of the males in the photo array are wearing t-shirts, the males in the left column have

on white t-shirts and the males in the right column have on black t-shirts. A picture of Davis was

included in the array. He was one of the individuals wearing a black t-shirt.

       {¶13} The only specific challenge that Davis makes to the array itself is that, because

not all of the men in the array are wearing the same color t-shirt, the array is impermissibly

suggestive. Because Harris indicated on the day of the shooting that Airman Taylor’s assailant

was wearing black, Davis argues, the fact that only half of the men in the photographs were

wearing that color was suggestive. Yet, Harris described Airman Taylor’s assailant as wearing a

black hooded sweatshirt and black skull cap. None of the men in the photographs were wearing

those items.   Moreover, the suppression hearing testimony reflects that the Akron Police

Department had two officers who were unfamiliar with the case present Harris with the array.

Both officers testified at the suppression hearing and indicated that they were not even aware if

Harris had chosen correctly when he selected Davis’ photograph. In the absence of any further

argument or supporting case law from Davis, we are not persuaded that the photograph

identification procedure here was impermissibly suggestive.         See, generally, Villa at ¶13

(rejecting argument that photo array was unduly suggestive).
                                                 6


       {¶14} We also reject Davis’ assertion that the identification was unreliable. Although

Harris was unable to help create a sketch directly after the shooting, he gave a brief description

of the shooter. Harris had the opportunity to view the shooter for several minutes while standing

outside Whispers Nightclub. Further, Harris saw the array only two days after the shooting

occurred and immediately selected the picture of Davis. Davis argues that Harris’ identification

was unreliable because Harris’ trial testimony demonstrates that he was not a credible witness.

Harris, however, did not testify at the suppression hearing, so his later testimony was not

evidence upon which the trial court relied at the time it denied Davis’ motion to suppress. The

evidence from the suppression hearing does not support Davis’ argument that the identification

was unreliable. See Davis, 76 Ohio St.3d at 113. His second assignment of error is overruled.

                                   Assignment of Error Number Four

       “THE TRIAL COURT ERRED IN FAILING TO ENFORCE A PLEA
       AGREEMENT FOR A LESSER SENTENCE THAT WAS WRONGFULLY
       WITHDRAWN BY THE STATE AFTER HAVING BEEN ACCEPTED BY
       THE APPELLANT.”

       {¶15} In his fourth assignment of error, Davis argues that the court erred by not

enforcing a plea agreement that the State wrongfully withdrew at trial. Specifically, he argues

that he accepted a plea agreement the State proposed during jury deliberations, the State

breached that agreement by withdrawing it after he accepted, and the trial court erred by not

requiring the State to honor it.

       {¶16} The record does not contain any evidence that the State engaged in any plea

negotiations with Davis or his counsel while the jury deliberated or that the court was aware of

any negotiations or agreement. In support of his argument on appeal, Davis cites to a statement

of the proceedings that he filed with the trial court on April 22, 2010, pursuant to App.R. 9(C).

App.R. 9(C) permits a party to prepare a statement of the evidence if no report of the evidence
                                                 7


was made or a transcript is unavailable. The rule requires, however, proper service of the

statement and submission to the trial court “for settlement and approval.” App.R. 9(C). The

statement, “as settled and approved, *** [then] shall be included by the clerk of the trial court in

the record on appeal.” “It is the duty of the appellant to arrange for the timely transmission of

*** any *** App.R. 9(C) statement *** and to ensure that the appellate court file actually

contains all parts of the record that are necessary to the appeal.” Loc.R. 5(A).

       {¶17} No App.R. 9(C) statement exists in this case. Although Davis filed a statement of

proceedings with the trial court one month before he filed his appeal, the trial court never

approved the statement. Loc.R. 5(A)(2) (“A statement pursuant to App.R. 9(C) *** must be in

written form and approved by the trial court.”). Davis also failed to indicate on his docketing

statement with this Court that the record would include an App.R. 9(C) statement. Accordingly,

there is no evidence in the record that any plea negotiations took place, that the State breached

any plea agreement, or that the trial court was aware of any alleged agreement. Davis’ fourth

assignment of error is overruled.

                                Assignment of Error Number One

       “APPELLANT’S 5TH, 6TH, AND 14TH AMENDMENT RIGHTS UNDER
       THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF
       THE OHIO CONSTITUTION TO DUE PROCESS AND A FAIR TRIAL WERE
       VIOLATED BY PROSECUTORIAL MISCONDUCT.”

       {¶18} In his first assignment of error, Davis argues that he was denied his right to a fair

trial because the prosecutor engaged in misconduct during cross-examination and closing

argument. We disagree.

       {¶19} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial

misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the

defendant’s substantial rights were actually prejudiced. State v. Smith (1984), 14 Ohio St.3d 13,
                                                 8


14. “[A] judgment may only be reversed for prosecutorial misconduct when the improper

conduct deprives the defendant of a fair trial.” State v. Knight, 9th Dist. No. 03CA008239, 2004-

Ohio-1227, at ¶6, citing State v. Carter (1995), 72 Ohio St.3d 545, 557. The defendant must

show that, but for the prosecutor’s misconduct, the jury would not have convicted him. State v.

Lollis, 9th Dist. No. 24826, 2010-Ohio-4457, at ¶24. “The touchstone of the analysis ‘is the

fairness of the trial, not the culpability of the prosecutor.’” State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, at ¶140, quoting Smith v. Phillips (1982), 455 U.S. 209, 219.

        {¶20} Davis argues that the prosecutor deprived him of a fair trial by referencing the fact

that he was in jail during the pendency of the proceedings. Davis claims that the prosecutor

repeatedly drew attention to the fact that he was in jail in order to imply his guilt and impugn his

credibility.

        {¶21} The prosecution did not refer to Davis’ incarceration during its case-in-chief. The

first mention of his incarceration occurred when the prosecutor cross-examined Davis’ mother,

Delonda Davis. Delonda testified on direct examination for the defense that Davis had dropped

out of high school, but had attended Life Skills. Specifically, Delonda stated that Davis “used

to” go to Life Skills. On cross-examination, the prosecutor asked Delonda why Davis stopped

going to Life Skills. Delonda stated it was because “[h]e got incarcerated.” She then clarified

that Davis had been incarcerated for this incident. Davis has not pointed to the foregoing

exchange as evidence of prosecutorial misconduct. Nor did he object to the exchange at trial or

ask the court to strike that testimony.      Accordingly, even apart from the conduct of the

prosecutor that Davis claims is improper, the jury was aware that Davis was incarcerated as a

result of this incident. See State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, at

¶30 (concluding that appellant failed to show the result of trial would have been different, but for
                                                9


the testimony elicited by the alleged misconduct of the prosecutor, because other witnesses had

reiterated the same testimony).

       {¶22} The record reflects that Davis presented several witnesses, namely his mother, ex-

girlfriend, and ex-girlfriend’s mother, all of whom lent support to his alibi. His ex-girlfriend,

Destini Vinson, testified that Davis was with her the entire night and next morning, during which

timeframe the shooting occurred. The State repeatedly asked Vinson why, if she knew Davis

was wrongfully being accused and held in jail, she never contacted the police or responded to

them when they attempted to contact her on multiple occasions. Davis did not object to the vast

majority of the questions that referred to his incarceration, but did have an objection sustained

when the State asked Destini why she failed to act, despite “[holding] the keys to the jail house.”

The court also sustained an objection to the State’s rebuttal during closing argument, wherein the

prosecutor attacked the credibility of the defense witnesses on the basis that they “did virtually

nothing for the six and a half months that an innocent man sat in prison, sat in jail.” The

prosecutor did not reference Davis’ incarceration in the first portion of his closing argument, but

did so in rebuttal after defense counsel repeatedly argued in his close that Destini did not come

forward because “[s]he knows that he’s not getting let go, no matter what she says.”

       {¶23} Assuming without deciding that the prosecutor acted improperly here, Davis fails

to explain how the prosecutor’s conduct deprived him of a fair trial. See State v. Johnson, 9th

Dist. No. 09CA0054-M, 2011-Ohio-3623, at ¶72-73. Both Harris and Airman Taylor identified

Davis as the shooter here. They both had an opportunity to view him on the night of the shooting

and expressed certainty that he was the man that shot Airman Taylor in the face. After Harris

identified Davis, the police began a manhunt for him that lasted until October 5, 2009. They

displayed Davis’ picture on the news, looked for him at multiple addresses, and asked several of
                                                 10


his family members if they knew his whereabouts. When the police finally did discover Davis,

he ran from them on foot and hid behind a bush. Based on our review of the record, we conclude

that Davis has not shown that the prosecutor’s conduct here deprived him of a fair trial. Lollis at

¶24. Consequently, Davis’ first assignment of error is overruled.

                               Assignment of Error Number Three

       “THE TRIAL COURT ERRED BY REFUSING TO PROPERLY CHARGE
       THE JURY THEREBY DEPRIVING THE APPELLANT OF DUE PROCESS
       AND A FAIR TRIAL AS GUARANTEED BY THE 5TH, 6TH, AND 14TH
       AMENDMENT UNDER THE UNITED STATES CONSTITUTION AND
       ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”

       {¶24} In his third assignment of error, Davis argues that the court erred in its charge to

the jury. Specifically, Davis argues that the court misstated the law with respect to its alibi

instruction and committed plain error.

       {¶25} Generally, a defendant’s failure to object to an allegedly erroneous jury

instruction limits any review of the alleged error to a review for plain error. State v. Johnson, 9th

Dist. No. 25525, 2011-Ohio-3941, at ¶20. Under Crim.R. 52(B), “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

court.” Waiver, however, “cannot form the basis of any claimed error under Crim.R. 52(B).”

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶23, quoting State v. McKee (2001), 91

Ohio St.3d 292, 299, fn. 3 (Cook, J., dissenting). “Waiver is the intentional relinquishment or

abandonment of a right[.]” Payne at ¶23. “A defendant, through the statements of his counsel,

may waive a jury instruction.” State v. Walker, 9th Dist. No. 10CA0011, 2011-Ohio-517, at ¶25,

citing Feliciano at ¶7.
                                                  11


       {¶26} Before closing arguments concluded, the trial judge held a sidebar discussion with

the attorneys and informed them that she had neglected to give the jury an alibi instruction along

with the other instructions. The following discussion then took place on the record:

       “THE COURT: *** Now, the standard jury instruction regarding notice of alibi is
       as follows -- the defendant -- if I gave an instruction, this is what it would be, if
       the parties want me to. The defendant has filed a notice of alibi. Alibi means
       elsewhere or a different place. The defendant claims he was elsewhere when
       Vincent Taylor was shot. If the evidence fails to establish that the defendant was
       elsewhere, the [S]tate still must prove all the essential elements of the crimes
       charged. Now, it is pretty neutral. I guess I will ask both sides, do you want me
       to give that instruction? I guess, [defense counsel], this is really up to you.

       “[DEFENSE COUNSEL]: Yeah, yeah. I mean, let me hear that again. Let me
       read it.

       “(Pause.)

       “[DEFENSE COUNSEL]: That sound[s] reasonable.

       “THE COURT: *** Do you want me to say it now or do you want me to wait
       until after the closing argument and then at that point talk about alibi[?]

       “[DEFENSE COUNSEL]: I would say after.”

The trial court later read the instruction, as stated, to the jury, adding only that the State’s burden

to prove the essential elements was to prove them beyond a reasonable doubt. Davis did not

object to the instruction when it was read.

       {¶27} This Court conducts a case-by-case review to determine whether an appellant has

waived or forfeited an objection. Feliciano at ¶7. In Feliciano, we determined that defense

counsel forfeited an objection to a jury instruction when the court asked the parties if they had

reviewed the jury instructions, and defense counsel indicated that he had reviewed them and

“had no objections to the proposed instructions.”         Id. at ¶6-8.    We reached the opposite

conclusion in Walker and concluded that defense counsel had waived any defect in an

instruction.   Walker at ¶30. There, defense counsel had an exchange with the trial judge
                                                12


regarding a jury question that related back to one of the jury instructions. The court indicated its

proposed response to the jurors, which was to refer them back to the instruction as it had been

read. Defense counsel then stated “[w]ell, the jury instructions do put it out pretty clearly. *** I

think it’s pretty well explained.” Id. at ¶28. In concluding that defense counsel waived any

objection to the instruction that prompted the jury’s question, this Court noted that “[t]he judge

sought counsel’s input and counsel agreed that the instructions as originally provided were

appropriate and could not be improved upon.” Id. at ¶30.

       {¶28} The case at hand is more analogous to Walker than to Feliciano, given the

attention drawn to the specific jury instruction at issue and counsel’s affirmative representation

that the instruction “sound[ed] reasonable.” Even assuming that defense counsel forfeited rather

than waived the alleged defect in the instruction, however, Davis has not shown that the trial

court committed plain error. “Notice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. Furthermore, a

plain error is one shown to be outcome determinative. State v. Waddell (1996), 75 Ohio St.3d

163, 166. Davis has not set forth any argument, evidence in the record, or case law to show that

the jury would not have convicted him, had they received a different alibi instruction. App.R.

16(A)(7). “If an argument exists that can support this assignment of error, it is not this [C]ourt’s

duty to root it out.” Cardone v. Cardone (May 6, 1998), 9th Dist. No. 18349, at *8. Davis’ third

assignment of error is overruled.

                                                III

       {¶29} Davis’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.
                                                13


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

DAVID M. WATSON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
