[Cite as State v. Richardson, 2013-Ohio-2068.]


                  [Please see nunc pro tunc opinion at 2013-Ohio-5760.]

                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :   JUDGES:
                                                 :
                                                 :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                        :   Hon. John W. Wise, J.
                                                 :   Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :   Case No. 2012CA00166
LANCE RICHARDSON                                 :
                                                 :
                                                 :
       Defendant-Appellant                       :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court of
                                                     Common Pleas, Case No.
                                                     2012CR0737



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT ENTRY:                              May 20, 2013




APPEARANCES:

For Appellant:                                       For Appellee:
JACOB T. WILL                                        KATHLEEN O. TATARSKY
116 Cleveland Ave. NW – Suite 808                    Assistant Prosecuting Attorney
Canton, OH 44702                                     110 Central Plaza South – Suite 510
                                                     Canton, OH 44702-1413
Baldwin, J.

      {¶1} Appellant Lance Richardson appeals a judgment of the Stark County

Common Pleas Court convicting him of aggravated robbery (R.C. 2911.01(A)(3)) and

felonious assault (R.C. 2903.11(A)(1)). Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

      {¶2} In December of 2011, Todd Davis placed an ad on Craig’s List for a date.

A woman named Tiffany responded to his ad and started texting Davis. On January 3,

2012, Tiffany texted Davis wanting to meet him at a bar on the corner of 15th Street

and Harrison in Canton.

      {¶3} Davis went to the bar. Tiffany was not there, so he sat at the bar and

drank a few sodas. Eventually Tiffany texted Davis, asking him to pick her up at an

address in Canton.

      {¶4} Davis arrived at the address Tiffany gave him around 10:30 p.m. At her

direction, he parked in a public lot near Aultman Hospital. Tiffany was waiting for him.

Davis and Tiffany began walking down an alley where there were apartments. Davis

assumed that they were walking to Tiffany’s apartment.

      {¶5} A man wearing a hoodie walked up to Tiffany and asked her for a light.

He did not have his cigarette with him, and briefly walked away. When he came back,

he hit Davis in the head with bottle. While Davis was on the ground, the man kicked

him in the face several times, asking for his wallet. At this point, Davis was knocked

“totally loo-loo.” Tr. 141. Tiffany, whose real name is Maria Likouris, ran away. The
man took Davis’ cell phone and his wallet. Davis went to Aultman Hospital and was

treated for a broken nose and fractured eye socket.

      {¶6} Detective Gary Cochran of the Canton Police Department was assigned

to investigate the case. He learned that appellant’s Chase credit card was used at a

Speedway gas station near the site of the robbery at 11:03 p.m. Video surveillance

tapes showed Likouris and a man wearing a black hoodie using Davis’ credit card to

make purchases.     The credit card was then used at 11:43 p.m. in a Giant Eagle

grocery store, along with a Giant Eagle Advantage Card belonging to appellant.

Likouris and the man in the hoodie were also spotted holding hands on Wal-Mart

video surveillance at 3:32 a.m., using Davis’ credit card to attempt to purchase

American Express gift cards. While in the store, the pair returned a Wii game for a

cash refund, and appellant’s name was signed to the receipt.

      {¶7} The video surveillance tapes were shown to Davis. Davis was “pretty

sure” that the woman in the videos was the woman he knew as Tiffany. He was not

sure if the male in the videos was the man who attacked him. Three days later, Davis

viewed a photo lineup that included appellant. On a scale of one to five, with one

being certain a photo is not of the perpetrator and five being certain that the photo is

of the perpetrator, Davis rated the photo of appellant a three and the remaining five

photos as ones.

      {¶8} Det. Cochran interviewed Likouris on February 3, 2012. After waiving

her Miranda rights, she told Cochran that appellant, who was her boyfriend, set up the

meeting with Davis. Appellant asked her for a lighter and the next thing she knew,
appellant hit Davis. However, she later told a public defender that appellant attacked

Davis in self defense.

       {¶9} Appellant was indicted by the Stark County Grand Jury with one count of

aggravated robbery and one count of felonious assault. Appellant filed a motion to

suppress the photo identification on the grounds that it was tainted by showing Davis

the video surveillance films of appellant using the stolen credit cards. He also moved

to suppress his statement to police on the grounds that he was not given Miranda

warnings. The court overruled the motion to suppress the photo identification, but

granted the motion to suppress the statement.

       {¶10} The case proceeded to jury trial in the Stark County Common Pleas

Court. At trial, Likouris admitted that she accompanied appellant to Speedway, Giant

Eagle and Wal-Mart after the robbery, but claimed she did not know the identity of the

man who assaulted and robbed Davis. She testified that she only told Det. Cochran

that the man who assaulted and robbed Davis was appellant because she was upset

with appellant at the time.

       {¶11} Appellant was convicted as charged. He was sentenced to ten years

incarceration for aggravated robbery and five years incarceration for felonious assault,

to be served concurrently for an aggregate term of ten years. He assigns three errors

on appeal:

       {¶12} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S

MOTION TO SUPPRESS THE IDENTIFICATION OF THE APPELLANT DUE TO THE

SUGGESTIVE NATURE OF THE PHOTO LINEUP.”
       {¶13} “II. THE TRIAL        COURT ERRED IN FAILING TO                  GIVE THE

APPELLANT’S        REQUESTED         JURY         INSTRUCTION     REGARDING         PRIOR

INCONSISTENT STATEMENTS OF A MATERIAL WITNESS.”

       {¶14} III. THE APPELLANT’S CONVICTIONS FOR ONE COUNT OF

AGGRAVATED ROBBERY IN VIOLATION OF R.C. 2911.01 AND ONE COUNT OF

FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11 WERE AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

                                             I.


       {¶15} In his first assignment of error, appellant argues that the court erred in

overruling his motion to suppress because the photo lineup was impermissibly tainted

by the store video surveillance tapes previously viewed by Davis.

       {¶16} When a witness is shown a photograph of a suspect before trial, due

process requires a court to suppress the photo identification of the suspect if the photo

array was unnecessarily suggestive of the suspect's guilt and the identification was not

reliable. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), superseded

by constitutional amendment on other grounds. The defendant has the burden to show

that the identification procedure was unduly suggestive. State v. Harris, 2nd Dist. No.

19796, 2004-Ohio-3570, ¶ 19. If the defendant meets that burden, the court must then

consider whether the identification, viewed under the totality of the circumstances, is

reliable despite its suggestive character. Id., citing State v. Wills, 120 Ohio App.3d 320,

324, 697 N.E.2d 1072 (1997). If the pretrial confrontation procedure was not unduly

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. Id. at 325, 697 N.E.2d 1072.

       {¶17} The trial court found that appellant failed to meet his burden of

demonstrating that the method used by the police in the instant case was

impermissibly suggestive. We agree.

       {¶18} Appellant was shown the videotape several days before the photo lineup.

He was unable to identify the man in the videotape as the man who assaulted him,

although he was “pretty sure” the woman in the videotape was the woman he knew as

Tiffany. However, when appellant viewed the photos, he was still only able to assign a

number of three out of five to his certainty that appellant was the man who assaulted

him. As the trial court noted at the end of the suppression hearing, “So if the officer

was suggesting something, he didn’t suggest it well because it was a 1 out of – it was

a 3 out of 5, you know what I’m saying?” Tr. Supp. 46. The nebulous identification of

appellant by Davis went to the weight of the evidence, not its admissibility. There is

nothing in the evidence presented at the suppression hearing to indicate that the

identification in the photo lineup was in any way tainted by the videotape.

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

                                                II.

       {¶20} Appellant argues that the court erred in failing to give his requested jury

instruction regarding prior inconsistent statements by Likouris.

       {¶21} Likouris was called as a court witness and a hostile witness.           She

testified at trial that she did not recognize the man who attacked appellant.        She

admitted that she was with appellant, who was her boyfriend, when he used Davis’
credit cards later that night, but she testified that appellant bought the cards from

someone else.

      {¶22} The state used two prior inconsistent statements by Likouris to impeach

her credibility. In one statement she told Detective Cochran that appellant attacked

and robbed Davis. She also admitted that she told the public defender that appellant

attacked Davis, but in self defense.

      {¶23} Appellant requested an instruction which stated that the jury may not

consider previous statements by Likouris as substantive evidence of what actually

occurred on the day in question, and could only use these statements to judge her

credibility. Instead, the court instructed the jury that they may or may not consider

these statements as substantive evidence, or they may use statements to judge her

credibility as a witness. Tr. 294-295.

      {¶24} Appellant does not argue that the statements were inadmissible to

impeach the credibility of the witness; rather, appellant argues that the statements

could not be used as substantive evidence of guilt because the statements were

hearsay. The State concedes that the statements could not be used as substantive

evidence of guilt, and argues that the court’s instruction was harmless error.

      {¶25} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d

35(1999), the United States Supreme Court held that because the failure to properly

instruct the jury is not in most instances structural error, the harmless error rule of

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, applies to a failure

to properly instruct the jury, for it does not necessarily render a trial fundamentally

unfair or an unreliable vehicle for determining guilt or innocence.      Crim. R. 52(A)
defines harmless error as any “error, defect, irregularity, or variance which does not

affect substantial rights.”

       {¶26} The error in the judge’s instruction was harmless in the instant case.

Video surveillance tapes show appellant using Davis’ credit cards shortly after the

robbery and in an area near the site of the robbery. Appellant used his own Giant

Eagle advantage card along with the credit card stolen from Davis, and signed a

receipt at Wal-Mart using his own name on the same visit where he used a card stolen

from Davis. Likouris admitted to posing as “Tiffany” and taking Davis to the spot

where he was robbed, although her statements varied concerning the identity of the

attacker. There is no evidence to corroborate her new statement at trial that appellant

purchased the stolen credit cards from someone else before they began going from

store to store using the cards. Although Davis could not identify appellant as the man

who attacked him with certainty, he could identify him by a three on a scale of five.

There is sufficient evidence independent of the prior statements by Likouris from

which the jury could have concluded that appellant was the man who attacked and

robbed Davis. The error in the instruction was therefore harmless.

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


                                             III.

       {¶28} Appellant argues that his convictions are against the manifest weight of

the evidence and were not supported by sufficient evidence.

       {¶29} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘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,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175,

485 N.E.2d 717 (1983).

      {¶30} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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, paragraph two of the syllabus (1991).

      {¶31} Appellant does not argue that the State failed to prove any of the

statutory elements of the offenses of aggravated robbery and felonious assault, but

rather argues that his convictions were based on mistaken identity, fueled by a

suggestive photo lineup and inconsistent testimony by Likouris.

      {¶32} The State presented evidence that Likouris used the name “Tiffany” to

respond to an ad appellant placed on Craig’s list. She directed him to meet her in a

public parking lot, and led him down an alley toward what Davis thought was her

apartment. In the alley, she was approached by a man who asked her for a “light.”

The man hit Davis with a bottle, kicked and beat Davis, and took his wallet and cell

phone. During the attack, the man referred to Davis as “Dave.” Because Davis was

hit from behind, he could not positively identify the man, but did state that the man was

African-American and wearing a black hoodie.        He was able to assign appellant’s

picture a number three out of five when viewing the photo lineup. Davis was attacked
around 10:30 p.m., and video tapes showed appellant and Likouris using the stolen

credit cards at three places near the scene of the robbery almost immediately

thereafter: Speedway at 11:00 p.m., Giant Eagle at 11:42 p.m., and Wal-Mart at 3:32

a.m. The credit cards were later found at a doctor’s office around the corner from the

place where appellant and Likouris were staying. Further, while Likouris stated at trial

that someone other than appellant attacked Davis, her credibility was impeached by

the fact that she had given two prior statements identifying appellant as the attacker.

      {¶33} The judgment is supported by sufficient evidence and is not against the

manifest weight of the evidence. The third assignment of error is overruled.

      {¶34} The judgment of the Stark County Common Pleas Court is affirmed.



By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.



                                        HON. CRAIG R. BALDWIN



                                        HON. WILLIAM B. HOFFMAN



                                        HON. JOHN W. WISE


CRB:rad
               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   2012CA00166
LANCE RICHARDSON                        :
                                        :
   Defendant - Appellant                :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. CRAIG R. BALDWIN



                                        HON. WILLIAM B. HOFFMAN



                                        HON. JOHN W. WISE
