[Cite as State v. Brown, 2013-Ohio-2665.]


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

STATE OF OHIO                                         C.A. No.       26409

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ROBERT D. BROWN                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 11 10 2767

                                 DECISION AND JOURNAL ENTRY

Dated: June 26, 2013



        CARR, Presiding Judge.

        {¶1}    Appellant, Robert Brown, appeals his conviction for aggravated robbery with a

firearm specification.      Because Brown’s conviction is against the manifest weight of the

evidence, this Court reverses and remands for a new trial.

                                                 I.

        {¶2}    On September 3, 2011, someone robbed the EuroGyro restaurant’s “chuck

wagon” at gunpoint. The robber wore a mask that obscured the lower half of his face and was

dressed as though he had been playing basketball. A EuroGyro employee estimated that the

robber was about his own weight, but shorter. The employee could not identify a suspect from a

photo array.

        {¶3}    With no leads to go on, the police turned to reports of recent arrests within a one-

block radius of the robbery. Investigating officers learned that Brown, who “relatively matched”

the description given by the EuroGyro employee, had been arrested two times in the
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neighborhood. Both times, he had been in possession of a firearm. That information led police

to arrest him in connection with the EuroGyro robbery. He was charged with two counts of

aggravated robbery accompanied by firearm specifications and found guilty of one of the charges

after a bench trial. The trial court sentenced Brown to six years in prison. Brown appealed,

raising two assignments of error. Because his second assignment of error is dispositive of this

appeal, we address it first.

                                                   II.

                                ASSIGNMENT OF ERROR II

        THE CONVICTIONS OF THE TRIAL COURT ARE AGAINST THE
        MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WAS
        INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTIONS
        BEYOND A REASONABLE DOUBT.

        {¶4}    Brown’s second assignment of error argues that the State did not produce

sufficient evidence demonstrating that he was the man who robbed EuroGyro and that even if the

evidence was sufficient, his conviction is against the manifest weight of the evidence. With

respect to the weight of the evidence, we agree.

        {¶5}    “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at ¶

18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether

the prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins, at 390 (Cook, J., concurring). In reviewing the evidence, we do not

evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks,

61 Ohio St.3d 259, 273 (1991). The State’s evidence is sufficient if it allows the trier of fact to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt. Id.
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       {¶6}    The identity of a perpetrator must be proved by the State beyond a reasonable

doubt. State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, ¶ 12. As with any other

element, identity may be proved by direct or circumstantial evidence, which do not differ with

respect to probative value. State v. Gibson, 9th Dist. No. 23881, 2008-Ohio-410, ¶ 8. A

reviewing court, however, cannot “fill in the blanks” when the State fails to produce evidence

related to an essential element of an offense. Akron v. Garrett, 9th Dist. No. 24412, 2009-Ohio-

1522, ¶ 12, quoting State v. Heinish, 50 Ohio St.3d 231, 239 (1990).

       {¶7}    In this case, the evidence presented by the State would permit a trier of fact to

conclude beyond a reasonable doubt that Brown committed the crimes. Benjamin Poole, an

employee of EuroGyro, testified that he was working in the chuck wagon on September 3, 2011,

when the restaurant was robbed. Mr. Poole described the robber as a black male dressed as if he

had been playing basketball. The robber wore a mask on the lower half of his face.

       {¶8}    Akron Police Detective Robert Richardson testified that because there were no

leads to follow with respect to the robbery, he looked for possible suspects by reviewing “field

interviews” of individuals arrested near EuroGyro. In the course of his review, he discovered

that Brown had been arrested twice within a block radius of the robbery while in possession of a

firearm. Although Brown has challenged the admission of this testimony as other acts evidence

under Evid.R. 404(B), we must consider all of the evidence presented in evaluating the

sufficiency of the evidence. See generally State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593,

¶ 20, citing Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988). According to Detective Richardson,

Brown “relatively matched” Mr. Poole’s description of the robber. In this respect, the parties

stipulated that Brown is left-handed, and an employee of the Summit County Sheriff’s Office

testified that according to Brown’s booking sheet, he is five feet eleven inches tall.
                                                 4


        {¶9}    Detective Michael Klein, an expert in forensic video image analysis, testified

about his expertise in his field, his methodology, and his observations after viewing the

surveillance video related to this case. Detective Klein noted two “possible identifiable features”

that the robber shared with the known images of Brown: “some curvature” to the right thumb and

“what [he] believe[d] to be tattooing” on the robber’s left arm. Viewing this video and still

frame evidence along with the testimony at trial in the light most favorable to the State, the

finder of fact could conclude beyond a reasonable doubt that Brown was the man who robbed

EuroGyro.      With respect to the sufficiency of the evidence, therefore, Brown’s second

assignment of error is overruled.

        {¶10} A conviction that is supported by sufficient evidence may nonetheless be against

the manifest weight of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

¶ 12.   This is because the issues of sufficiency and weight are “both quantitatively and

qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the

syllabus. With respect to the weight of the evidence, the Ohio Supreme Court has explained:

        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.”

Id. at 387, quoting Black’s Law Dictionary (6 Ed.1990) 1594. When an appellate court reverses

a conviction as against the manifest weight of the evidence, it views the record from the

perspective of the finder of fact without affording deference to the State and disagrees with the

factfinder’s resolution of conflicting evidence. See id. Consequently, this Court must:

        review the entire record, weigh the evidence and all reasonable inferences,
        consider the credibility of witnesses and determine whether, in resolving conflicts
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       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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 175 (1st. Dist.1983). This is one such case.

       {¶11} Benjamin Poole, who witnessed the robbery, estimated that the robber was shorter

than him, between five feet six inches and five feet seven inches tall, and that he weighed about

170-180 pounds. Brown, however, is about five feet eleven inches tall and of a lean build. Mr.

Poole did not notice any tattoos on the robber’s body, and when asked to consider a photo array,

he did not identify a suspect. Mr. Poole recognized Brown at trial because he lived across the

street from the chuck wagon and Mr. Poole knew him as a customer who frequented EuroGyro

on a regular basis. Mr. Poole testified that he did not think Brown was the robber.

       {¶12} This Court has reviewed the video and the still frame photographs that were the

subject of Detective Klein’s testimony, and they do not reveal distinct similarities between

Brown and the robber. They do show shadows on the robber’s arm that could be explained as

tattoos, but they are not clearly so. In Detective Klein’s own words, the still frame photographs

depict “a blur pattern down the arm.” He further explained that “I can’t even tell you in the

video those are separate tattoos, yet in the known images [of Brown] we can see they are

separate tattoos.” In addition to expressing his inability to state with certainty what the video

depicts, this statement makes it plain that the assumption underlying his examination of the video

was that Brown is the person pictured. Indeed, Detective Klein agreed that his task as to inquire

whether there “is something on the unknown to compare to something on the known.” In other

words, Detective Klein examined the surveillance video with Brown in mind.
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       {¶13} Assuming that the shadowed areas represent tattoos, the photographs seem to

indicate that the robber lacked tattoos in places in which Brown has them, and there is not

sufficient detail to demonstrate that the tattoos are the same. Similarly, it is not immediately

apparent that the photographs represent the same curvature of the right thumbs. Significantly,

the record does not contain any testimony explaining the significance of the curvature, such as

how frequently a curvature of this nature might be expected to occur in the population at large.

Although Detective Klein testified about his expertise, methodology, and observations, pursuant

to a ruling in limine he did not describe his conclusions regarding whether Brown is the man

pictured on the surveillance video. In addition, Brown’s own expert testified that the known

images of Brown are dissimilar from the surveillance images, containing more tattoos, tattoos

with different details, and different levels of consistency regarding ink patterns.

       {¶14} The State introduced testimony related to a stipulated polygraph examination of

Brown, the results of which were consistent with deception.            The results of a stipulated

polygraph examination, however, are only admissible to corroborate other evidence and to

impeach the defendant. State v. Souel, 53 Ohio St.2d 123 (1978), syllabus. The testimony of a

polygraph examiner does not tend to prove or disprove any element of the crime. Id.

       {¶15} Brown is a black male who is left-handed. He owns a gun, and he lived near the

EuroGyro chuck wagon. He has tattoos on his arms and torso, and the robber might also have

tattoos in some of the same places – but there is little evidence from which one could conclude

that the tattoos are the same. Both may have some curvature in their thumbs, but there is no

evidence in the record that this is unique among the population as a whole. The only eyewitness

to the robbery does not believe that Brown is the robber. For these reasons, we conclude that this

is an exceptional case in which the weight of the evidence at trial weighs heavily against the
                                                 7


conclusion that Brown is the person who robbed EuroGyro. Accordingly, although there was

sufficient evidence supporting Brown’s conviction, this Court concludes that his conviction is

against the manifest weight of the evidence, and his second assignment of error is sustained in

that respect.

                                 ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE
        OTHER ACTS EVIDENCE.

        {¶16} Brown’s first assignment of error is moot, and we decline to address it. See

App.R. 12(A).

                                                III.

        {¶17} Brown’s second assignment of error is sustained with respect to the manifest

weight of the evidence. His first assignment of error is moot. The judgment of the Summit

County Court of Common Pleas is reversed, and this matter is remanded for a new trial.

                                                                               Judgment reversed
                                                                             and cause remanded.




        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(C). The Clerk of the Court of Appeals is
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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 Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

RODNEY A. BACA, Attorney at Law, for Appellant.

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