State v. Stearns , 2024 Ohio 714 ( 2024 )

[Cite as State v. Stearns, 2024-Ohio-714.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin J.
Plaintiff-Appellee : Hon. John W. Wise J.
:
-vs- :
: Case No. 2023 CA 00083
KYNAN STEARNS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2023 CR 0067A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 26,, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE STONE DONOVAN R. HILL
Stark County Prosecutor 122 Market Avenue North
BY VICKI L. DESANTIS Dewalt Building, Suite 101
Assistant Prosecutor Canton, OH 44702
110 Central Plaza South, Ste. 510
Canton, OH 44702
Stark County, Case No. 2023 CA 00083 2
Gwin, J.,
{¶1} Appellant Kynan M. Stearns appeals from the judgment entry of the Stark
County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On January 12, 2023, appellant was charged with one count of robbery, a
felony of the second degree, in violation of R.C. 2911.02(A). The trial court held a jury
trial beginning on July 5, 2023.
{¶3} J.R. was an assistant manager at the Circle K store in Louisville, Ohio. She
was working the midnight shift by herself on December 30, 2022. While she was working
on the computer in the office, she heard the bell ring. She looked on the camera and saw
someone walk in around 3:00 a.m. J.R. walked out of the office, and the customer’s back
was towards her. When J.R. said “hello,” the customer turned around, looked at her, and
said, “do not move, just sit on the floor.” The customer had what J.R. thought looked like
a police baton in his hand.
{¶4} J.R. was sitting on the floor when someone else came into the store. He
told her to put her shirt up over her face, which she did. The two individuals that came
into the store had masks on, but J.R. could tell they were both males. When appellant
initially came into the store, the mask covered only part of his face. J.R. could see
appellant’s eyes and forehead. J.R. could “kind of see” through her shirt, and saw the
perpetrators behind the counter rummaging through items and opening up drawers. At
some point, one of the individuals that J.R. identified as appellant went into the office,
flung items everywhere, and threw a drawer on the sales floor. The individual that came
into the store first left through the front door. The second individual was trying to wheel
Stark County, Case No. 2023 CA 00083 3
the trash can to the door, but it flipped over and he was trying to get items back into it.
He ran out the back door. On his way out, he slapped J.R. across the face. A police
officer came into the store and took J.R. to his vehicle. J.R. was checked out by medics,
but was not taken to the hospital.
{¶5} There are surveillance cameras in the store that are always running. J.R.
reviewed the videos several weeks prior to trial. On the video, J.R. saw one of the
individuals pull down his mask. J.R. identified that individual as appellant. When asked
on cross-examination how J.R. knew it was appellant, she stated, “because he looks like
the picture from the front door when he didn’t have his mask on.” J.R. confirmed that the
police did not do a photo line-up during their investigation.
{¶6} K.A. was doing a ride-along with Deputy McMillen in Louisville on December
30, 2022. They were sitting at the light at California Avenue and Main Street. K.A. and
Deputy McMillen noticed someone at the doors of the Circle K waving them into the
parking lot like they were in distress. As soon as the cruiser pulled into the parking lot,
the person took off to the back of the store and ran out the back door. While the officer
went into the store, K.A. remained in the cruiser. He saw the individual running across
the parking lot to a light-colored Buick vehicle. K.A. did not have a clothing description
for the individual, but he saw it was a black male. K.A. did not see enough of the individual
to describe any other characteristics.
{¶7} Deputy Jason McMillen (“McMillen”), of the Stark County Sheriff’s office was
on duty on December 30, 2022. He took a civilian, K.A., for a ride-along that night. K.A.
needed to use the restroom while they were on patrol. McMillen knew the Circle K was
open all-night, so he was headed to the Circle K. When they were sitting at the traffic
Stark County, Case No. 2023 CA 00083 4
light near the Circle K, McMillen saw a black male open the front door of the Circle K and
wave towards McMillen like he needed help. McMillen pulled his car into the Circle K
parking lot. As he was pulling into the parking lot, the black male at the door disappeared.
McMillen got out of his patrol car and walked to the front door. He saw the clerk sitting
on the floor. He entered the store and took the clerk to his cruiser. Then, he went back
in and checked the store. McMillen identified multiple photographs of the crime scene.
{¶8} Officer Zachary Clark (“Clark”) of the Louisville Police Department received
a call about the robbery on December 30, 2022, when he was about a mile away from the
scene. When he arrived at the scene, he spoke to the victim. She could not identify the
suspect. Clark took photographs of the scene. He identified the photographs at trial.
Clark bagged, tagged, and marked a black tennis shoe that was found at the scene and
sent it to the Bureau of Criminal Investigation (“BCI”) for DNA processing.
{¶9} Detective John Pilla (“Pilla”) of the Louisville Police Department was called
to the scene. He arrived when the store had already been ransacked. Pilla observed a
black shoe left at the back door. Pilla identified photographs he took of the scene. The
victim told Pilla the perpetrators were two black males, one wearing a black hoodie and
one wearing a gray hoodie.
{¶10} Pilla obtained and viewed surveillance video from the store that night. Pilla
also identified still photographs taken from various points during the surveillance video.
Several of the still photographs showed the suspects. In one photograph, the mask of
one of the suspects was pulled down, so Pilla got a look at his face. Pilla also observed
that he was wearing black shoes. Pilla identified the shoe the suspect was wearing as
the black shoe that was left behind at the scene. Pilla testified the first suspect was
Stark County, Case No. 2023 CA 00083 5
wearing an “Arby’s” jacket and the second suspect was wearing a “Gaming in Progress”
hoodie.
{¶11} Pilla described the physical evidence found at the scene, including a black
shoe, gum stuck to a cigarette carton near the cash register, and a cigarette pack with
saliva on it. Pilla’s investigation led him to a female named J.W., appellant’s ex-girlfriend,
who said she had information about the robbery. J.W. gave Pilla the names of “Kynan
Stearns” and “JMoney.” Upon further investigation, Pilla determined “JMoney’s” real
name was Jason Mitchell (“Mitchell”). After obtaining a search warrant, Pilla searched
Mitchell’s residence. Pilla found Circle K brand lighters, multiple cartons of cigarettes,
and a box of beef jerky sticks. Pilla also found the “Gaming in Progress” hoodie. Pilla
took the beef jerky sticks and carton of cigarettes to the Louisville Circle K store. The
clerk at the store scanned them, and it popped up on their register confirming those items
were specific to that store.
{¶12} Pilla located appellant on January 6, 2023. BCI needed a “DNA standard”
from the suspects to complete the DNA testing on the items found at the scene. Pilla
obtained a search warrant to get DNA samples from appellant and Mitchell. Pilla
confirmed there was a match from appellant’s DNA to the shoe found at the scene.
{¶13} Pilla testified that appellant sent a letter to J.W. on May 23, 2023, stating
that she “need[ed] to make sure Karon knows what to say. He is not to tell my lawyer
that he is my brother. He is to say that he was at our house when JMoney and Dana
came over with the tobacco. He is my witness that I was at home with him on the night
of the robbery. This is important, J.W. This is priority.” Appellant wrote a letter to a friend
on May 18, 2023 stating, “I really need you to talk to Karon so he knows what to say to
Stark County, Case No. 2023 CA 00083 6
my lawyer for my trial, please. Karon is my alibi to where I was that night. He needs to
say that me and him was at the house together when JMoney and someone else came
over with tobacco products. I’m having my lawyer call him to trial for me.”
{¶14} On cross-examination, Pilla testified he was not able to identify any
suspects from the video surveillance footage.
{¶15} Brittany Troyer (“Troyer”) from BCI testified about DNA testing procedures.
Appellant was found to be a contributor to the DNA located on the black shoe located at
the scene. Troyer estimated the proportion of the population that cannot be excluded as
a possible major contributor is 1 in 10 million unrelated individuals. Neither the chewing
gum or cigarettes had the DNA of appellant.
{¶16} Appellant testified in his own defense. Appellant stated Mitchell came to his
house sometime prior to December 30, 2022 with another male named “Dana” who had
allegedly run away from foster care and needed help. Appellant testified he gave Dana
shoes and clothing. However, because Dana did not wear appellant’s shoe size,
appellant gave him J.W.’s black shoes. Appellant also gave Dana underwear, pants,
hoodies, and shirts.
{¶17} Appellant stated that one morning, Mitchell and Dana came over to
appellant’s house to get high. Mitchell told appellant he “hit a lick” which appellant took
to mean that Mitchell stole money or committed a robbery. Mitchell asked appellant to
help him “sell some stuff,” so appellant posted the items on Facebook. Appellant testified
he was not at the Louisville Circle K on December 30, 2022 and stated he did not rob the
store. Appellant believes the black shoe was the shoe he gave to Dana. Appellant
confirmed he was previously convicted of felony burglary in 2015. Appellant also
Stark County, Case No. 2023 CA 00083 7
confirmed he wrote the letters to J.W. and his friend. He testified he wrote them because
he was scared to go to trial.
{¶18} On cross-examination, appellant stated he never told the police about
“Dana.” Appellant also admitted that, in the letters, he was trying to fabricate an alibi with
his brother Karon. Appellant does not know why J.W.’s DNA was not in the shoe because
it was her shoe.
{¶19} The jury found appellant guilty of robbery. The trial court memorialized the
jury’s verdict in a July 11, 2023 judgment entry. The trial court sentenced appellant to an
indefinite prison term of five to seven and one-half years in prison. The trial court issued
a judgment entry of sentence on July 25, 2023.
{¶20} Appellant appeals the July 25, 2023 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
{¶21} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
I.
{¶22} In appellant’s assignment of error, he argues the conviction for robbery is
against the manifest weight of the evidence because the identification in the case was
inherently unreliable.
{¶23} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determine whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
Stark County, Case No. 2023 CA 00083 8
be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.{¶24} It is well-established, though, that the weight of the evidence and the
credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The jury is free to accept or reject any
and all of the evidence offered by the parties and assess the witness’s credibility. Id.{¶25} Appellant was found guilty of one count of robbery pursuant to R.C.
2911.02(A), which provides, in pertinent part:
(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:
(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.
{¶26} Appellant contends his conviction is against the manifest weight of the
evidence because the evidence utilized to identify appellant as the person who committed
the offense was not reliable.
{¶27} Every criminal prosecution requires proof that the person accused of the
crime is the person who committed the crime. State v. Tate, 140 Ohio St.3d 442, 2014-
Ohio-3667, 19 N.E.3d 888. This truism is reflected in the state’s constitutional burden to
prove the guilt of the “accused” beyond a reasonable doubt. In re Winship, 397 U.S. 358,
Stark County, Case No. 2023 CA 00083 9
90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Like any fact, the state can prove the identity of
the accused by circumstantial or direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991). A witness need not physically point out the defendant in the
courtroom as long as there is sufficient direct or circumstantial evidence proving that the
defendant was the perpetrator. Id.{¶28} If the State relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991). Furthermore, “since circumstantial evidence and
direct evidence are indistinguishable so far as the jury’s fact-finding function is concerned,
all that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.” Id. While inferences cannot
be based on inferences, a number of conclusions can result from the same set of facts.
State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). Moreover, a series of facts and
circumstances can be employed by a jury as the basis for its ultimate conclusions in a
case. Id.{¶29} Appellant argues the totality of the circumstances demonstrates the risk of
misidentification in this case is high because: the witness could not see appellant’s entire
face at the time of the crime; J.R. did not have a heightened degree of attention because
she had a shirt over her face; J.R. was unable to describe the perpetrators to police; and
J.R. did not view the surveillance video until several weeks prior to trial.
{¶30} In the instant case, there was no pretrial identification procedure. The same
factors which are used in testing the reliability of a pretrial identification are used in
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determining whether or not the in-court identification was of an independent origin. State
v. Culbertson, 5th Dist. Stark No. 2018CA00183, 2020-Ohio-903. The factors affecting
reliability include: the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’ prior description of
the criminal, the level of certainty demonstrated by the witness at the confrontation, and
the length of time between the crime and the confrontation. State v. Moody, 55 Ohio
St.2d 64, 377 N.E.2d 1008 (1978).
{¶31} The Ohio Supreme Court explained that in determining the admissibility of
an in-court identification, trial courts should consider whether the in-court identification
was a product of an improper pretrial identification procedure or whether the in-court
identification “came from some independent recollection and observation of the accused
by the witness.” State v. Jackson, 26 Ohio St.2d 74, 269 N.E.2d 118 (1971).
{¶32} In this case, there was not a pretrial identification such as a photo array
where the victim selected appellant as the perpetrator. Police retrieved all of the
surveillance video from the Circle K’s cameras on December 30, 2022. There were also
still pictures taken from the video, including one where appellant was standing in front of
the store with his mask pulled down. The officers testified the videos and photographs of
the scene were fair and accurate depictions of the surveillance footage from the Circle K.
{¶33} J.R. was shown the surveillance tape and photographs, and she
immediately identified appellant as one of the perpetrators. The record reflects that the
victim’s in-court identification was based on her own observations and memory. Though
the victim testified the suspect had a mask on, she stated the mask was not fully over his
face. She also testified as to the location of each of the suspects during the robbery, and
Stark County, Case No. 2023 CA 00083 11
confirmed on the surveillance video photographs that is where she saw each suspect on
the night of the robbery. The victim’s in-court identification was made under oath and
subject to cross-examination. Defense counsel challenged her recollection of the
incident.
{¶34} We find the victim had a reliable and independent basis for the identification
based on her prior independent observations. We do not find that the victim’s in-court
identification denied appellant his right to a fair trial or caused a manifest miscarriage of
justice. See State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265, 2017-Ohio-
2671 (showing convenience store surveillance video to eyewitnesses was a valid and
reliable investigative procedure as the video depicts actual events connected in time and
space to the crime itself).
{¶35} In State v. Johnson, the court noted several factors indicating the
identification was not unreliable: there were no suggestive out-of-court procedures that
could have invalidated the in-court identification; the witness made her identification in
court and under oath and was subject to cross-examination; the witness testified she
observed the suspect for over a minute; and the witness was confident in her
identification. 163 Ohio App.3d 132, 2005-Ohio-4243, 836 N.E.2d (10th Dist. 2005). This
Court found an in-court identification reliable in State v. Culbertson, 5th Dist. Stark No.
2018CA00183, 2020-Ohio-903, in a factual scenario similar to this one. See also State
v. Daniels, 5th Dist. Stark No. 2018CA00155, 2019-Ohio-3208 (identification not
unreliable even though victim did not see who kicked in the door). Here, there was no
suggestive out-of-court procedures that could have invalidated the in-court identification,
J.R. made her identification in court and under oath and was subject to cross-
Stark County, Case No. 2023 CA 00083 12
examination, J.R. testified she observed appellant several times as he was rummaging
through the store when he did not have his mask fully on, and J.R. was confident in her
identification.
{¶36} We find no merit in appellant’s contention that the victim’s in-court
identification was tainted by her viewing of photographs from the surveillance video. The
identification was based upon her own independent recollection of the events.
{¶37} Any type of direct or circumstantial evidence may be utilized to establish the
identity of the perpetrator of a crime. State v. Tyo, 5th Dist. Stark No. 2016CA00223,
2018-Ohio-1374. The jury, as the trier of fact, was free to accept or reject any and all of
the evidence offered by the parties and assess the witness’ credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-
Ohio-3113. The jury need not believe all of a witness’ testimony, but may accept only
portions of it as true.
{¶38} Appellant’s argument also overlooks the compelling evidence such as the
surveillance video and the DNA evidence obtained from the black shoe left at the scene.
State v. Bias, 10th Dist. Franklin No. 21AP-329, 2022-Ohio-4643 (other circumstantial
evidence established the defendant was the shooter such as DNA); State v. Guevara,
10th Dist. Franklin No. 21AP-414, 2023-Ohio-1448 (state may establish identity of
perpetrator through use of DNA even if victim was not able to definitively identify
perpetrator). Appellant’s DNA was found on the black tennis shoe that the officers found
at the scene and matched the shoe the perpetrator was wearing in the surveillance video.
Stark County, Case No. 2023 CA 00083 13
Appellant admitted to being friends with Mitchell, and admitted that he posted pictures of
some of the stolen items on Facebook. The jury heard appellant’s voice in the surveillance
video and at trial.
{¶39} Finally, appellant argues that, even if the identification was not unreliable,
there are other reasons why the jury’s verdict is against the manifest weight of the
evidence. Appellant contends: the tip to police about appellant came from his ex-
girlfriend who appellant testified was not truthful, the stolen merchandise was not located
in appellant’s house, and a second contributor’s DNA was on the shoe.
{¶40} However, there is no indication the tip by J.W. is unreliable. The tip led Pilla
to appellant and Mitchell. Appellant and Mitchell’s DNA matched the items of clothing
worn by the suspects during the robbery. The police found the stolen merchandise at
Mitchell’s home, and found appellant’s Facebook post of the stolen items. Though the
stolen items were not found in appellant’s home, he listed them on Facebook. Further,
the jury could reasonably reject the self-serving testimony of appellant. Appellant
admitted that he attempted to fabricate an alibi for the night of the robbery. While
appellant was certainly free to argue that “Dana” committed the crime and that the
eyewitness identification was unreliable, on a full review of the record, we cannot say the
jury clearly lost its way or created a manifest injustice by choosing to believe the testimony
of J.R. and the other witnesses.
Stark County, Case No. 2023 CA 00083 14
{¶41} The jury verdict finding appellant guilty of robbery was not against the
manifest weight of the evidence. Appellant’s assignment of error is overruled. The
judgment entry of conviction of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Wise, J., concur