[Cite as State v. Gabriel, 2011-Ohio-4664.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :            C.A. CASE NO. 24144

v.                                                    :            T.C. NO.   09CR3178

RASHIED J. GABRIEL, JR.                        :           (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                    :

                                                      :

                                              ..........

                                              OPINION

                          Rendered on the      16th       day of     September   , 2011.

                                              ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, Talbott Tower, Suite 1210, 131 N.
Ludlow Street, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

        {¶ 1} Rashied Gabriel Jr. was found guilty by a jury of one count of aggravated

robbery (deadly weapon), with a firearm specification. He was sentenced to four years in

prison on the aggravated robbery, with an additional three years of actual incarceration on
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the firearm specification. He appeals from his conviction.

                                                    I

       {¶ 2} On September 29, 2009, the two victims were robbed at gunpoint by two men

while sitting in a car outside the Valerie Arms apartments in Dayton. The victims reported

to the police that one of the two perpetrators was someone with whom they had prior

dealings; they provided the police with the offender’s nickname and school. Using this

information, the police identified Gabriel as the suspect and put his photograph in a photo

array. The victims each identified Gabriel from the photo array. No physical evidence was

found to link Gabriel to the offense. Gabriel was charged with one count of aggravated

robbery, with a firearm specification.

       {¶ 3} Gabriel filed a motion to suppress the victims’ identifications, arguing that

the photo array was unduly suggestive. The trial court overruled this motion.

       {¶ 4} Gabriel was tried by a jury which found him guilty of aggravated robbery and

found that he had used a firearm in the commission of the offense. He was sentenced as

described above, and the trial court ordered that his sentence in this case run consecutively to

the sentence imposed in another case (Case No. 2008 CR 4944).

       {¶ 5} Gabriel appeals from his conviction, raising two assignments of error.

                                                   II

       {¶ 6} Gabriel’s first assignment of error states:

       {¶ 7} “THE       IDENTIFICATION         OF       APPELLANT      BY    GOVERNMENT

WITNESSES CORDELL AND BRANNON AROSE FROM PHOTOGRAPHIC LINEUPS

THAT      WERE      UNDULY        SUGGESTIVE            AND   VIOLATED         APPELLANT’S
                                                                                          3

CONSTITUTIONAL RIGHT TO DUE PROCESS.”

       {¶ 8} Gabriel argues that the identification procedure used in this case was

impermissibly suggestive because he was the only person in the photo array wearing “jail

clothing.” He claims that, in looking at the photo array, a witness’s eyes “were naturally

drawn to the photograph” of him.

       {¶ 9} At the suppression hearing, Detective William Elholz testified that, on

Monday, September 29, 2009, he began an investigation into an armed robbery that had

occurred the previous weekend by interviewing the two victims of the offense, Joshua

Brannon and Christopher Cordell. Brannon and Cordell told Detective Elholz that a man

known to them as “Shied” was one of the two men who had robbed them. The men knew

“Shied” from a past encounter; Cordell had purchased a “musical item or tech item” from

“Shied.” Cordell and Brannon told Detective Elholz that “Shied” was a student at TechCon,

a school in Montgomery County.

       {¶ 10} By providing a physical description and the nickname to someone at the

school, Detective Elholz focused his investigation on Rashied Gabriel. Using a computer

program, Detective Elholz assembled two, six-picture “photo spreads,” each of which

contained Gabriel’s photo, and showed them separately to the victims.         Brannon and

Cordell each “immediately” identified Gabriel as one of the people who had robbed them.

       {¶ 11} After considering the evidence presented at the suppression hearing, the trial

court found that the photo arrays were “fair and not impermissibly suggestive.”           It

explained:

       {¶ 12} “There is no evidence that Cordell and Brannon had any opportunity to confer
                                                                                               4

or communicate with each other about the photo arrays they were shown. The use of the

two different photo arrays prevented any communication between them, even if any occurred

(and no evidence suggests any communication between them at the relevant time) from

tainting Cordell’s identification of Defendant in the second array.

       {¶ 13} “The photo of Defendant used in the arrays shows him wearing a

Montgomery County Jail inmate uniform. The other five photos show individuals dressed

in street clothes. However, Defendant’s photo is not otherwise different or distinguishable

from the other photos in the array.      Defendant’s clothing in his photo does not draw

disproportionate interest nor does it call out or highlight Defendant as a criminal or convict.”

       {¶ 14} “Due process requires suppression of pre-trial identification of a suspect only

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

substantial likelihood of misidentification. Neil v. Biggers (1972), 409 U.S. 188, 196-97,

93 S.Ct. 375, 34 L.Ed.2d 401. To establish a due process violation, a defendant must prove

that the out of court confrontation was ‘unnecessarily suggestive and conducive to

irreparable mistaken identification.’ Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct.

1967, 18 L.Ed.2d 1199. However, even where the identification procedure is suggestive, so

long as the challenged identification itself is reliable, it is still admissible. State v. Moody

(1978), 55 Ohio St.2d 64. See Manson v. Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct.

2243, 53 L.Ed.2d 140, (‘reliability is the linchpin in determining the admissibility of

identification testimony’).”      State v. Marshall, Montgomery App. No. 19920,

2004-Ohio-778, ¶11.

       {¶ 15} We review a trial court’s refusal to suppress a pretrial identification for
                                                                                    5

an abuse of discretion.           State v. Wilson, Montgomery App. No. 22624,

2009-Ohio-1038, ¶19

       {¶ 16} The trial court acted within its discretion in concluding that the photo

arrays used in this case were not unduly suggestive. The picture of Gabriel shows

only his head and neck, with a blue collarless shirt layered over a white t-shirt.

Although one familiar with the Montgomery County jail garb might be able to identify

it as such, the small amount of clothing visible in Gabriel’s photo is not styled in

such a way as to be clearly identifiable as jail clothing. Further, the other five

individuals all had collarless shirts and/or white t-shirts. The clothing did not draw

undue attention to Gabriel, and there is no evidence that Brannon or Cordell

recognized it as jail clothing.

       {¶ 17} Moreover, Brannon and Cordell “immediately” identified Gabriel’s

picture, and he was known to them from a prior interaction. Even assuming, for

the sake of argument, that the clothing in the picture was suggestive, the trial court

could have reasonably concluded that the victims’ identification of Gabriel was

reliable.

       {¶ 18} The first assignment of error is overruled.

                                              III

       {¶ 19} Gabriel’s second assignment of error states:

       {¶ 20} “THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE, AND THE EVIDENCE PRESENTED WAS INSUFFICIENT, AS A

MATTER OF LAW, TO PROVE THE APPELLANT’S GUILT BEYOND A

REASONABLE DOUBT.”
                                                                                       6

       {¶ 21} Gabriel claims that his conviction was supported by insufficient

evidence and was against the manifest weight of the evidence.

       {¶ 22} An argument based on the sufficiency of the evidence challenges

whether the state has presented adequate evidence on each element of the

offense to allow the case to go to the jury or to sustain the verdict as a matter of

law. State v. Thompkins (1999), 78 Ohio St.3d 380, 386. The proper test to apply

to such an inquiry is the one set forth in State v. Jenks (1991), 61 Ohio St.3d 259:

“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.” Id., at paragraph two of the

syllabus.

       {¶ 23} In contrast, when reviewing a judgment under a manifest-weight

standard of review “‘[t]he court, 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 [factfinder] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered. The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against

the conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983),

20 Ohio App.3d 172, 175.

       {¶ 24} Both of the victims testified at trial. They testified that Cordell had

picked Brannon up from Kroger, where Brannon worked, in the late evening of
                                                                                  7

September 26, 2009, and the two men drove to the Valerie Arms apartments,

where Brannon was staying with his mother. After the men sat in the car in the

parking lot for twenty to thirty minutes, talking and smoking, a man armed with a

semiautomatic handgun and wearing a bandana appeared in Cordell’s window.

Immediately thereafter, another man appeared with a gun at the passenger window

(Brannon’s window).     The armed men instructed the victims to “Empty your

pockets. Give me everything you got.” The victims complied and were ordered out

of the car.   While the armed men searched the car, Cordell ran into a nearby

wooded area, and Brannon lay on the ground. After waiting what “seemed like half

an hour,” Cordell ran to Kroger, called his father, and then returned to the Valerie

Arms parking lot. Brannon had “walked off,” as instructed by the armed men, and

called the police.

       {¶ 25} When the police arrived at the scene and two days later, when a

detective was assigned to the case, Brannon and Cordell provided descriptions

of the armed men and reported that they knew one of the men as “Shied,” a student

a TechCon Institute. Cordell had purchased an iPod from Gabriel and owed him

money; Brannon had graduated from TechCon, but knew Gabriel through Cordell.

The victims claimed that they recognized Gabriel by his voice, his braided hair, and

his eyes.

       {¶ 26} Based on the information provided by the victims, Detective Elzholz

worked with a TechCon administrator to identify the suspect as Rashied Gabriel.

Detective Elzholz created two photo arrays containing Gabriel’s picture, and both
                                                                                     8

victims identified him as one of the perpetrators of the armed robbery.1 At trial,

both men expressed certainty that Gabriel was one of the men who had robbed

them.

        {¶ 27} Gabriel was charged with aggravated robbery.       Specifically, it was

alleged that in attempting or committing a theft offense, or in fleeing immediately

after the attempt or offense, he had a deadly weapon (handgun) on his person or

under his control and recklessly displayed or brandished the weapon.              The

testimony of the two victims established the elements of this offense and could

“convince the average mind of the defendant’s guilt beyond a reasonable doubt.”

Gabriel’s conviction was supported by sufficient evidence.

        {¶ 28} Gabriel claims that his conviction was against the weight of the

evidence because of inconsistencies in the victims’ statements and “no gun

recovered, no fingerprints, no stolen money or property, no confessions.”          He

asserts that Cordell’s trial testmiony was contrary to his testimony at the preliminary

hearing and, because no credible explanation was offered, “[n]o rational trier of fact

would possibly have been able to determine *** which was the truth and which was

a lie.” He also claims that Brannon’s identification was “so blatantly untruthful that

any rational trier of fact would dismiss it out of hand.”

        {¶ 29} The victims acknowledged that some of their initial statements to the

dispatcher or to the police were colored by being “scared.” They also explained

that, because they had not left the scene together, each was very apprehensive


  1
      It appears from this record that the other man was never identified.
                                                                                  9

about the fate of the other during their initial contact with the police.    (When

Brannon first called the police, he was unsure what had happened to Cordell; when

Cordell returned to the scene of the robbery and the police arrived, he was unsure

what had happened to Brannon.) Cordell also admitted that he had been reluctant

to testify at the preliminary hearing. Both were subjected to cross-examination,

and the jury heard these explanations.       The jury heard the testimony of the

witnesses and saw their demeanor on the stand. Because the jury “is particularly

competent to decide ‘whether, and to what extent, to credit the testimony of

particular witnesses,’ we must afford substantial deference to its determinations of

credibility.” State v. Spears, 178 Ohio App.3d 580, 2008-Ohio-5181,¶12, quoting

State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288.             We cannot

conclude that the jury clearly lost its way and created a manifest miscarriage of

justice in weighing the evidence as it did. Gabriel’s conviction was not against the

manifest weight of the evidence.

      {¶ 30} The second assignment of error is overruled.

                                             IV

      {¶ 31} The judgment of the trial court will be affirmed.

                                    ..........

GRADY, P.J. and CANNON, J., concur.

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment
of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Kirsten A. Brandt
Jeffrey T. Gramza
                       10

Hon. Mary L. Wiseman
