[Cite as State v. Fields, 2019-Ohio-2252.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. W. Scott Gwin, P.J
         Plaintiff-Appellee                      Hon. William B. Hoffman, J.
                                                 Hon. Patricia A. Delaney, J.
 -vs-
                                                 Case No. 2018CA00159
 BRANDON MALIK FIELDS

        Defendant-Appellant                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Stark County Court of
                                                 Common Pleas, Case No.
                                                 2018CR1152(C)



 JUDGMENT:                                       Affirmed

 DATE OF JUDGMENT ENTRY:                         June 6, 2019


 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 JOHN D. FERRERO                                 BERNARD L. HUNT
 Stark County Prosecuting Attorney               2395 McGinty Road, N.W.
                                                 North Canton, Ohio 44720
 KRISTINE BEARD
 Assistant Prosecuting Attorney
 110 Central Plaza South – Ste. #510
 Canton, Ohio 44702
Stark County, Case No. 2018CA00159                                                    2

Hoffman, J.
       {¶1}   Appellant Brandon Malik Fields appeals the judgment entered by the Stark

County Common Pleas Court convicting him of robbery (R.C. 2911.02(A)(2)) and assault

(R.C. 2903.13(A)) and sentencing him to an aggregate term of incarceration of six years.

Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Diana Johnson met Sean Jefferson through an online dating service in early

May, 2018. They frequently talked and hung out together thereafter. Diana attended a

party at her cousin’s duplex on May 23, 2018. She called Sean to ask him to come to the

party in the 3100 block of Kalahari St. in Canton, Ohio. She asked him to bring her a

Black and Mild cigarette and to park behind the duplex, near a dumpster.

       {¶3}   Sean arrived between 6:30-7:00 p.m., and parked where instructed. Diana

was outside waiting for him. He gave her the Black and Mild, which she smoked outside.

She told Sean smoking was not permitted at the party. While standing outside, Sean saw

a man approaching from the left, and two men approaching from the other direction. Sean

had a bad feeling about the situation.

       {¶4}   According to Diana, two men, Kevin Proctor and Appellant, who she knew

as “Mozzy,” were at the party and approached her and Sean outside. Proctor asked Sean

for a cigarette. Sean told Proctor he didn’t smoke. Proctor then asked for a “buck.” Tr.

132. Sean said he didn’t have a buck, but he had hundreds, referring to money. Proctor

and Sean started to walk to Sean’s car, when Proctor threw Sean to the ground. Appellant

kicked Sean several times, and Proctor punched Sean. When Diana ran to kick Proctor,

Appellant picked her up and slammed her to the ground. She got up and ran to her

mother’s house. Before she left, she saw keys in Proctor’s hand.
Stark County, Case No. 2018CA00159                                                       3


       {¶5}    According to Sean’s recollection of the evening, one of the men who

approached him outside asked for money. Sean replied he didn’t have any money. The

man told Sean he needed a “band,” or one thousand dollars. Tr. 175. Sean walked to

his car to get a crow bar for protection. As he was walking, he was thrown to the ground

and kicked by two men – one wearing boots, and one wearing gym shoes. The men

kicked Sean multiple times. He did not recognize any of the men. He lost consciousness,

and woke up as the men were attempting to use the fingers of his left hand to unlock his

cell phone. While lying on the ground, he saw Diana walk away. After the men left in his

car, Sean got up and walked toward the road. A girl stopped to help him. He next woke

up in the back of an ambulance. The men who assaulted him took his wallet, cell phone,

keys, and rental vehicle. Sean was not able to identify Appellant nor Proctor.

       {¶6}    Detective Joseph Pileggi of the Canton Police Department was assigned to

the case. In speaking with Sean, he learned Sean believed Diana set him up for the

robbery. Detective Pileggi’s attempts to contact Diana were unsuccessful. Det. Pileggi

issued a warrant for Diana’s arrest for complicity to commit robbery, and she was arrested

by a U.S. Marshall in June of 2018.

       {¶7}    Diana identified Proctor to Det. Pileggi by name. She told the detective the

other man went by the name “Mozzy Mac” on Facebook, and his first name was Brandon.

Det. Pileggi circulated a photograph of the man Diana knew as Mozzy around the police

department, and a patrol officer identified the man as Appellant. Diana identified photos

of both men.

       {¶8}    Sean’s rental vehicle was recovered two weeks later. Two juveniles were

arrested in conjunction with the stolen vehicle.
Stark County, Case No. 2018CA00159                                                         4


       {¶9}   Appellant was indicted by the Stark County Grand Jury with complicity with

Kevin Proctor and Diana Johnson in the commission of robbery and assault. Appellant

and Proctor were tried jointly by jury trial in the Stark County Common Pleas Court.

Appellant was convicted as charged and sentenced to six years incarceration for robbery

and thirty days incarceration for assault, to be served concurrently.

       {¶10} It is from the October 5, 2018 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:



              THE TRIAL COURT’S FINDING OF GUILT WAS AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED

       BY SUFFICIENT EVIDENCE.



       {¶11} Appellant argues the judgment of conviction is against the manifest weight

and sufficiency of the evidence because Diana Johnson’s testimony was inconsistent and

self-serving, and therefore not credible. He also argues Det. Pileggi’s investigation was

faulty because he failed to examine the recovered rental vehicle for DNA and fingerprint

evidence.

       {¶12} 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
Stark County, Case No. 2018CA00159                                                        5

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).

       {¶13} 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).

       {¶14} Appellant was convicted of robbery in violation of R.C. 2911.02(A)(2), which

provides:

              (A) No person, in attempting or committing a theft offense or in

       fleeing immediately after the attempt or offense, shall do any of the

       following:

              (2) Inflict, attempt to inflict, or threaten to inflict physical harm on

       another[.]



       {¶15} He was also convicted of assault in violation of R.C. 2903.13(A), which

states, “No person shall knowingly cause or attempt to cause physical harm to another or

to another's unborn.”

       {¶16} Appellant argues the only person who identified him as one of the men

involved in the theft and assault on Sean Jefferson was Diana Johnson, and her testimony

was inconsistent, self-serving, and therefore not credible. He argues based on the lack

of credibility of her identification testimony, the judgment is against the manifest weight

and sufficiency of the evidence.
Stark County, Case No. 2018CA00159                                                           6


       {¶17} Diana identified Appellant and Proctor as the two men involved in the

assault and robbery. She had previously identified the men to police, naming Proctor and

stating she knew Appellant by the name “Mozzy.” After police identified “Mozzy” as

Appellant, she was able to identify both men from photographs presented to her by

Detective Pileggi. Her identification testimony was sufficient, if believed by the jury, to

support the convictions of robbery and assault.

       {¶18} Further, we find the jury did not lose its way in finding her testimony credible

as to the identification of Appellant as one of the men involved in the assault and robbery

of Sean Jefferson.     The jury was made aware of the inconsistencies between her

testimony and Sean’s testimony, and further was aware she previously told police a third

man was present, who tried to break up the assault. The jury was aware she was charged

as an accomplice in the incident. Counsel for Appellant and Proctor criticized her actions

in running from the scene, failing to call the police, and refusing to talk to police until she

was arrested for the crime. In spite of the concerns placed before the jury concerning her

credibility, the jury chose to believe her identification testimony. Because the trier of fact

is in a better position than this Court to observe the witnesses' demeanor and weigh their

credibility, the weight of the evidence and the credibility of the witnesses are primarily for

the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212,

paragraph one of the syllabus (1967).

       {¶19} Appellant also argues the judgment is against the manifest weight of the

evidence because Det. Pileggi failed to process Sean’s rental car for fingerprints and DNA

after the car was recovered. Det. Pileggi testified the car was recovered two weeks after

the incident, in the hands of two juveniles who gave no information as to how they
Stark County, Case No. 2018CA00159                                                         7


received the car. He testified the car was not processed because in his experience, a

stolen vehicle may change hands four to five times a night. Tr. 238. He further testified

because the car was a rental, it would have the prints and DNA from many people present

inside. Tr. 239. From his testimony the jury could conclude processing the car for prints

and DNA in an attempt to link Appellant to the stolen vehicle would have been a fruitless

venture. We find the lack of scientific evidence linking Appellant to the car does not render

the judgment against the manifest weight and sufficiency of the evidence.

       {¶20} The assignment of error is overruled.

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




By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
