State v. Sumlin ( 2020 )

[Cite as State v. Sumlin, 2020-Ohio-1600.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108000
v. :
ROSS SUMLIN, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623480-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer M. Meyer, Assistant Prosecuting
Attorney, for appellee.
Charles Ruiz-Bueno Co., L.P.A., and J. Charles Ruiz-
Bueno, for appellant.
FRANK D. CELEBREZZE, JR., P.J.:
Defendant-appellant, Ross Sumlin, Jr., brings the instant appeal
challenging his convictions for aggravated robbery, aggravated burglary, felonious
assault, kidnapping, and having weapons while under disability. Appellant argues
that his convictions were not supported by sufficient evidence and against the
manifest weight of the evidence. After a thorough review of the record and law, this
court affirms.
I. Factual and Procedural History
This case involves a robbery and shootout that occurred on October 12,
2016, at Prodigy Cuts Barbershop on Storer Avenue in Cleveland, Ohio. The
barbershop’s owner, Rachad Ahmad, and another barber, Abdiel Espinal-Collazo,
were getting ready to close the shop for the day. There were two customers inside
the shop: Ahmad’s cousin, Yusef Suleiman, and Suleiman’s five-year-old nephew,
S.S.
Sometime after 7:00 p.m., appellant entered the barbershop and asked
for a “lineup.”1 Ahmad was still cutting S.S.’s hair, so he told appellant to take a seat
in the lobby until Espinal-Collazo could take care of him. Appellant sat down in the
lobby and began texting or playing on his phone.
Approximately two minutes after appellant entered the barbershop,
two armed individuals, Rayshaun Perkins (a.k.a. “worm”) and Deshon Pennyman,
entered the shop, approached Ahmad and Espinal-Collazo, and ordered them to
turn over their belongings.
Unbeknownst to Perkins and Pennyman, Ahmad and Espinal-Collazo
were also carrying firearms. When they observed Perkins and Pennyman enter the
1 A “lineup” is edging a clean line around the face and head. (Tr. 223.)
shop and demand that everyone turn over their belongings, Ahmad and Espinal-
Collazo drew their weapons and began firing at Perkins and Pennyman.2 Perkins
and Pennyman exchanged fire with Ahmad and Espinal-Collazo.
Perkins and Pennyman retreated and ran out the front of the
barbershop. Pennyman sustained a gunshot wound to his chest during the shootout.
Ahmad believed that appellant was also firing shots during the shootout
because he saw “flashes” coming from the corner where appellant had been sitting.
Ahmad acknowledged that he was not certain that appellant was firing shots because
it was very dusty during the shootout. After observing the “flashes” in the area where
appellant was sitting, Ahmad and Espinal-Collazo fired shots in this direction.
Appellant made his way out of the barbershop, but not before sustaining a gunshot
wound.
After running out of the barbershop, Perkins and Pennyman jumped
into the “getaway” car parked around the corner from the barbershop, and the
driver, Anthony Patterson, drove Pennyman to MetroHealth Medical Center
(“Metro”). The group did not wait for appellant before fleeing the area, they left him
behind at the barbershop. Pennyman explained that they were not concerned about
leaving appellant behind because as far as everyone else was concerned, appellant
“had nothing to do with [the shooting].” (Tr. 426.) Pennyman testified that Perkins
called appellant and told him he was taking Pennyman to the hospital.
2 Suleiman testified that Espinal-Collazo fired the first shot. (Tr. 316.)
Suleiman, S.S., and Espinal-Collazo took cover in the barbershop’s
bathroom. After appellant, Perkins, and Pennyman had fled from the barbershop,
Ahmad crawled to the entrance and locked the door. He joined the group in the
bathroom where they called 911 and waited until police arrived.
Ahmad’s hip was grazed by a bullet during the shootout. S.S.
sustained a gunshot wound to the foot, and he was transported to Metro for
treatment.
Suleiman spoke with investigators at Metro. He identified Pennyman
as one of the shooters. Pennyman was arrested at the hospital for his involvement
in the robbery and shootout.
Pennyman, a minor, negotiated a plea agreement with the state.
Pennyman was charged in juvenile court, and subsequently bound over to the
general division of the common pleas court. Under the plea agreement, Pennyman’s
case would be sent back to the juvenile court for disposition and sentencing in
exchange for his testimony against Perkins and appellant. (Tr. 387.) Pennyman met
with Cleveland Police Sergeant John Lally on July 21, 2017, and provided a recorded
statement about the robbery.
Appellant was arrested for his involvement in the robbery and
shootout in December 2017. On December 13, 2017, a Cuyahoga County Grand Jury
returned a 17-count indictment charging appellant with: (1) – (4) aggravated
robbery, a first-degree felony in violation of R.C. 2911.01(A)(1); (5) aggravated
robbery, a first-degree felony in violation of R.C. 2911.01(A)(3); (6) aggravated
burglary, a first-degree felony in violation of R.C. 2911.11(A)(1); (7) aggravated
burglary, a first-degree felony in violation of R.C. 2911.11(A)(2); (8) felonious
assault, a second-degree felony in violation of R.C. 2903.11(A)(1); (9) – (12)
felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2); (13) –
(16) kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(2); and (17)
having weapons while under disability, a third-degree felony in violation of R.C.
2923.12(A)(2). Counts 1-16 contained one- and three-year firearm specifications,
notice of prior conviction specifications, and repeat violent offender specifications.
Appellant pled not guilty during his December 18, 2017 arraignment.
Appellant elected to try the notice of prior conviction and repeat
violent offender specifications to the bench. A jury trial commenced on October 22,
2018. Appellant and Perkins were tried together.
The following witnesses testified on behalf of the state: (1) Rachad
Ahmad; (2) Natalie Pennyman; (3) Yusef Suleiman; (4) Abdiel Espinal-Collazo; (5)
Deshon Pennyman; (6) Dwayne Duke; (7) Cynthia Moore; and (8) John Lally.
At the close of the state’s case, defense counsel moved for a Crim.R. 29
judgment of acquittal. The trial court denied defense counsel’s motion.
The defense did not call any witnesses. The defense renewed its
Crim.R. 29 motion that the trial court denied.
The jury returned its verdict on October 30, 2018. The jury found
appellant guilty on all 17 counts. The trial court found appellant guilty on the
specifications underlying Counts 1-16. The trial court ordered a presentence
investigation report and set the matter for sentencing.
The trial court held a sentencing hearing on December 10, 2018. The
trial court imposed an aggregate prison term of 18 years.
On December 18, 2018, appellant filed the instant appeal challenging
the trial court’s judgment. He assigns two errors for review:
I. The jury’s verdict was against the manifest weight of the evidence and
prejudicial against Defendant-Appellant.
II. The evidence adduced at trial was insufficient to sustain a verdict
against Defendant-Appellant for aggravated burglary.
II. Law and Analysis
For ease of discussion, we will address appellant’s assignments of
error out of order.
A. Sufficiency
In his second assignment of error, appellant argues that his
convictions for aggravated burglary were not supported by sufficient evidence.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is 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 (1991),
paragraph two of the syllabus.
Appellant was charged with aggravated burglary in violation R.C.
2911.11(A)(1) and (2), which provide,
(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied
portion of an occupied structure, when another person other than an
accomplice of the offender is present, with purpose to commit in the
structure or in the separately secured or separately occupied portion of
the structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical
harm on another;
(2) The offender has a deadly weapon or dangerous ordnance on or
about the offender’s person or under the offender’s control.
In support of his sufficiency challenge, appellant contends that the
state failed to demonstrate that he was trespassing in the barbershop. Appellant
argues that he entered the barbershop to get a haircut, and as a result, he was a
business invitee, not a trespasser.
As an initial matter, appellant fails to identify any case law in support
of his assertion that his aggravated burglary convictions must fail because he was a
business invitee of the barbershop. See App.R. 16(A)(7). Furthermore, the state
argues that any privilege appellant had to enter the barbershop was revoked when
Pennyman and Perkins entered the barbershop and attempted to rob the
barbershop at gunpoint.
R.C. 2911.21(A)(1), governing criminal trespass, provides that “[n]o
person, without privilege to do so, shall * * * [k]nowingly enter or remain on the
land or premises of another[.]” (Emphasis added.) In State v. Steffen, 31 Ohio St.3d
111, 509 N.E.2d 383 (1997), the defendant-appellant challenged his aggravated
burglary convictions, arguing that he was granted privilege to enter the premises, a
private residence, where he killed the victim. The Ohio Supreme Court explained
that “a privilege once granted may be revoked.” Id. at 115. In rejecting the
defendant’s argument, the court held that even if the initial entry was lawful and
defendant had privilege to enter, the defendant did not have privilege to remain on
the premises when he commenced a violent assault: “the felony committed, once on
the premises, was one of violence, directed against a human being who had the
ability and the authority to revoke the privilege of initial entry, if such privilege was
in fact granted[.]” Id.
In this case, assuming, arguendo, that appellant’s initial entry into the
barbershop was lawful, and Ahmad or Espinal-Collazo granted appellant privilege
to enter the shop, appellant did not have privilege to remain on the premises of the
barbershop. Appellant’s privilege to remain inside the barbershop terminated the
moment his accomplices, Pennyman and Perkins, entered the shop and commenced
the armed robbery, a violent felony, directed against Ahmad and Espinal-Collazo,
who had the ability and authority to revoke appellant’s privilege of initial entry.
Nevertheless, appellant’s argument that he entered the barbershop as
a business invitee rather than a trespasser is entirely unsupported by the record. As
will be discussed in further detail in appellant’s first assignment of error, the state’s
theory of the case was that appellant was an accomplice of Perkins and Pennyman,
and he entered the barbershop before them as a “look-out” to case the shop and
report back to them. The defense’s theory of the case was that appellant was a victim
that had no involvement with and did not participate in the robbery. In other words,
appellant defended against the charges below on the theory that he was a customer
of the barbershop that was in the wrong place at the wrong time.
Appellant’s business invitee argument is premised entirely on the
assumption that (1) he entered the shop for a legitimate purpose, to get a “lineup,”
rather than to case the shop as a “look-out” and report back to Perkins and
Pennyman, and (2) he was an innocent customer and victim, rather than an
accomplice of Perkins and Pennyman and participant in the robbery. This
assumption is belied by Pennyman’s testimony regarding appellant’s involvement
in the robbery. Pennyman’s testimony, if believed, is sufficient to establish that
appellant was, in fact, trespassing in the barbershop — appellant entered the
barbershop as an accomplice and a “look-out” with the intent to commit robbery in
the shop.
Pennyman testified that on October 12, 2016, he was hanging out after
school at Anthony Patterson’s house with his best friend, his cousin, Anthony,
Perkins, and appellant. They were at the house from approximately 1:00 p.m. to
7:00 p.m. The defendants, Perkins and appellant, were “[t]alking about going to
rob something.” (Tr. 403.) They did not converse about getting haircuts.
They left Anthony’s house around 7:00 p.m. Anthony was driving,
and the passengers in the car were Pennyman, appellant, and Perkins. Pennyman
believed that they were in appellant’s girlfriend’s Nissan.
The original plan was to rob Pennyman’s stepfather’s house. They
drove to the house, and Pennyman, appellant, and Perkins went inside. They were
unable to steal any money from the stepfather’s house. They left the house and were
driving back to Anthony’s house.
As they were driving around, they passed Prodigy Cuts Barbershop on
Storer Avenue and West 59th Street. As they drove passed the barbershop, appellant
suggested that they rob the barbershop: “[appellant] said they sell drugs in [the
barbershop].” (Tr. 412.)
Anthony parked around the corner, facing the barbershop. Pennyman
testified that before anyone got out of the car, “[appellant] said we were going to go
in and rob them.” (Tr. 416.) Appellant got out of the car and went in the barbershop
first “[t]o look at it, look at something.” (Tr. 416.) Pennyman confirmed that
appellant was going to go in first and “look out,” and then call the individuals in the
car to let them know what he observed. Approximately one minute after appellant
entered the barbershop, he called Perkins’s cell phone. A few seconds after appellant
called Perkins, Perkins and Pennyman went into the barbershop.
Pennyman testified that Perkins and appellant were carrying
firearms. Appellant had a “bigger” gun, a black .40 caliber Glock, and Perkins had a
“small” gun, a pink .380 Bodyguard. Appellant did not have a gun, however, when
he went into the barbershop because appellant gave his gun to Perkins and Perkins
gave his gun to Pennyman.
After the shootout inside the barbershop during which he sustained a
gunshot wound to the chest, Pennyman testified that he ran out of the barbershop,
and across the street. Perkins was running with and holding Pennyman. They got
into Anthony’s car. Appellant was still in the barbershop, and they left him behind.
Perkins called appellant and told him they were taking Pennyman to the hospital.
They were not concerned about leaving appellant behind because they believed no
one knew he had any involvement in the robbery.
At some point before the robbery, appellant and Perkins told
Pennyman that he would not get in that much trouble if he got arrested because he
is a juvenile. Pennyman testified that appellant and Perkins made “[a] couple” of
threats to him and threatened that “[t]hey were going to kill me.” (Tr. 442.)
After reviewing the record, we find that the state presented sufficient
evidence to support appellant’s aggravated burglary convictions. Pennyman’s
testimony alone, if believed, is sufficient to establish the elements of aggravated
burglary beyond a reasonable doubt. Pennyman’s testimony demonstrates that
appellant was an accomplice of Perkins and Pennyman, and that he entered the
barbershop as a “look-out” to assess the situation inside the barbershop and report
back to the group inside the vehicle. Accordingly, we find no merit to appellant’s
argument that he was not trespassing inside the barbershop because he entered the
shop as a business invitee.
For all of the foregoing reasons, appellant’s second assignment of
error is overruled. Appellant’s aggravated burglary convictions were supported by
sufficient evidence.
B. Manifest Weight
In his first assignment of error, appellant argues that his convictions
were against the manifest weight of the evidence.
In contrast to sufficiency of the evidence, “weight of the evidence
involves the inclination of the greater amount of credible evidence.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While “sufficiency of
the evidence is a test of adequacy as to whether the evidence is legally sufficient to
support a verdict as a matter of law, * * * weight of the evidence addresses the
evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words,
a reviewing court asks whose evidence is more persuasive — the state’s or the
defendant’s?” Id. The reviewing court must consider all the evidence in the record,
the reasonable inferences, and the credibility of the witnesses to 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 be reversed
and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
In support of his manifest weight challenge, appellant argues that
there was no direct evidence that he was involved with or a participant in the
robbery. Appellant’s argument is entirely unsupported by the record. As noted
above, Pennyman, appellant’s accomplice who participated in the robbery, testified
that appellant came up with the idea to rob the barbershop. Appellant went into the
barbershop first to assess the situation, and then communicated his observations to
Perkins. Contrary to appellant’s assertion, Pennyman’s testimony is direct evidence
implicating appellant in the robbery.
Appellant argues that his convictions are against the manifest weight
of the evidence because Pennyman’s testimony was “winding and tortuous,” and
there were several inconsistencies between Pennyman’s trial testimony and the
statement he provided to police during a recorded interview on July 21, 2017.
Appellant contends that Pennyman’s testimony was not credible because he only
implicated Perkins and appellant to get a favorable deal.
The state acknowledges that there were, in fact, some inconsistencies
between the statement Pennyman provided to police on July 21, 2017, and his trial
testimony. Pennyman provided conflicting details during his July 21, 2017
statement and his trial testimony regarding (1) Anthony’s last name, (2) the amount
of time he spent with appellant on the day of the robbery, (3) the reason they went
to the barbershop, (4) when they talked about robbing the barbershop, and (5)
whether Perkins, appellant, both, or neither called Anthony.
First, regarding Anthony’s last name, Pennyman testified on direct
examination that he was “not sure” what Anthony’s last name was. (Tr. 389.)
Pennyman confirmed on cross-examination that he did not know Anthony’s last
name. During his July 21, 2017 interview with Sgt. Lally, however, Pennyman
informed police that Anthony’s last name was Patterson.
Second, regarding the amount of time he spent with appellant on
October 12, 2016, Pennyman testified on direct examination that he was with
appellant and Perkins at Anthony’s house from approximately noon or 1:00 p.m. to
7:00 p.m. During his interview with Sgt. Lally, Pennyman asserted that he was with
appellant for approximately one hour before the barbershop robbery.
Third, regarding the reason the group went to the barbershop,
Pennyman testified at trial that the group went to the barbershop to rob the place.
During his interview with Sgt. Lally, however, Pennyman asserted that he went to
the barbershop with Perkins and appellant to get a haircut. Pennyman
acknowledged at trial that this statement was not true, and he explained that he lied
because “that’s what [Perkins and appellant] told me. It’s a code, I guess.” (Tr. 404.)
Fourth, regarding the timing of the discussion about robbing the
barbershop, Pennyman asserted during his July 21, 2017 interview that appellant
and Perkins discussed the plan to rob the barbershop while they were driving on the
freeway from Anthony’s house to the west side. Pennyman testified at trial,
however, that this statement was not true, and that there was no plan to rob the
barbershop until they drove past the barbershop after the unsuccessful attempt to
rob his stepfather’s house.
Fifth, regarding who appellant called to report his observations from
inside the barbershop, Pennyman testified at trial that appellant called both Perkins
and Anthony from inside the barbershop. During his interview with Sgt. Lally,
however, Pennyman asserted that appellant called Anthony, not Perkins, from
inside the barbershop.
In addition to these inconsistencies, Pennyman did not mention the
attempt to rob his stepfather’s house during his interview with Sgt. Lally. Pennyman
explained on cross-examination that he did not mention it during the interview
because he felt it was not important.
After reviewing the record, we are unable to conclude that appellant’s
convictions are against the manifest weight of the evidence based on the
aforementioned inconsistencies between Pennyman’s statements to Sgt. Lally on
July 21, 2017, and his testimony at trial. The inconsistencies do not cast serious
doubt on appellant’s involvement in the barbershop robbery. The important aspects
of Pennyman’s testimony remained largely consistent over time, including appellant
devising the plan to rob the barbershop and going into the barbershop before
Perkins and Pennyman to assess the situation and report back to the individuals in
the car.
Pennyman acknowledged the terms of his plea agreement several
times during trial. When he provided his statement to police on July 21, 2017, he
had been bound over to adult court. In exchange for his cooperation and testimony
against appellant and Perkins, the case would be sent back to juvenile court for
disposition. Pennyman acknowledged that he provided the statement to police on
July 21, 2017, so he would “get less time.” (Tr. 502.) He explained, however, that at
the time of trial, he had not been advised about how much time he would have to
serve.
Pennyman acknowledged that he was not truthful when he spoke with
police at the hospital immediately after the incident. Pennyman asserted to police
that he had merely been walking by the barbershop, rather than inside the
barbershop and involved in the robbery. Pennyman testified at trial that he did not
tell police what happened or who was involved because he does not talk to the police.
He subsequently explained that he did not have an attorney when the police initially
questioned him at the hospital, and, after he was represented by an attorney, he
agreed to speak with the police about what transpired.
Pennyman explained that he eventually agreed to cooperate with
police because his mother begged him to tell the truth. He talked to his mother at
the hospital, but did not tell her what happened at this time. He subsequently told
his mother “[t]hat they made me do it.” (Tr. 432.) Pennyman confirmed on cross-
examination that he agreed to speak with police on July 21, 2017, because his mother
begged him to tell the truth.
Pennyman also acknowledged that he was supposed to tell the truth
during the July 21, 2017 interview, and that he did not do so. He explained, however,
that only some of his statements were false or misleading — not his entire statement.
Pennyman asserted that he “just didn’t tell [Sgt. Lally] everything.” (Tr. 463.) On
redirect examination, Pennyman confirmed that his trial testimony was the truth
about what transpired at the barbershop, and he was not merely stating what the
prosecutor wanted to hear about the incident.
Regarding his general outlook after the October 12, 2016 incident,
Pennyman testified that his life changed in a good way after surviving the gunshot
wound to the chest. Pennyman explained that he learned a lesson from the incident
and realized he must have survived for a reason.
The record reflects that Pennyman testified about his involvement in
the robbery, the fact that he was not truthful when he spoke with police at the
hospital, the fact that he was not entirely truthful when he spoke with Sgt. Lally on
July 21, 2017, his plea agreement with the state, and the inconsistencies between his
statement to Sgt. Lally and his testimony at trial. Accordingly, the jury, as the trier
of fact, had sufficient information to assess the credibility of all of the witnesses,
including Pennyman.
To the extent that appellant argues that the evidence established that
he was a victim, not a participant in the robbery, we disagree. As noted above, the
state’s theory of the case was that appellant was an accomplice of Perkins and
Pennyman, and he entered the barbershop before them as a “look-out” to assess the
situation and report back to the individuals in the car outside. On the other hand,
the defense’s theory of the case was that appellant was a victim that had no
involvement with and did not participate in the robbery.
“‘[A] conviction is not against the manifest weight of the evidence
simply because the jury rejected the defendant’s version of the facts and believed the
testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga No. 101773,
2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-
Ohio-2959, ¶ 2. In this case, the jury did not lose its way in resolving the conflicting
theories based on the evidence presented at trial.
The record reflects that aspects of Pennyman’s testimony were
consistent with the testimony of Ahmad, Espinal-Collazo, and Suleiman. Ahmad
and Suleiman both testified that appellant was on his cell phone when he sat down
in the lobby of the barbershop. Less than two minutes after appellant entered the
barbershop, his accomplices Perkins and Pennyman entered the shop with their
guns drawn. A reasonable inference can be made that after entering the barbershop
and assessing the situation inside, appellant communicated his observations to his
accomplices who entered shortly thereafter.
Ahmad testified that when Perkins and Pennyman entered the shop
brandishing their guns, appellant was “calmly sitting” near the entrance. (Tr. 266.)
Appellant was “still calmly sitting” when shots were fired. (Tr. 268.) Based on this
testimony, a reasonable inference can be made that appellant was an accomplice of
Perkins and Pennyman, not a victim. Unlike Suleiman who dove to the ground to
shield his nephew, and unlike Ahmad, Espinal-Collazo, and Suleiman who ran to
the bathroom to take cover and hide immediately after the shootout, appellant was
sitting calmly in his chair when Perkins and Pennyman entered the shop, and when
the shootout began. Therefore, a reasonable inference can be drawn that appellant
knew Perkins and Pennyman were coming, he was not startled by them, and he did
not feel that he was in danger.
Finally, appellant also appears to suggest that Suleiman improperly
and prejudicially testified that appellant “looked suspicious.” Appellant appears to
argue that this statement was based entirely on appellant’s race, and that the
improper comment inflamed the jury and contributed to the jury losing its way.
Appellant’s argument is unsupported by the record.
Initially, appellant’s counsel did not object to Suleiman’s statement.
Accordingly, appellant has forfeited all but plain error. Nevertheless, Suleiman
explained why appellant looked suspicious when he entered the barbershop.
Suleiman testified that appellant stood out to him when he entered the barbershop:
[Appellant] [j]ust looked suspicious. Like, you could read suspicious
off of somebody’s face. He came in asking for a lineup, and then he
said, I’m having my nephew, my brother or someone come up here. In
two minutes, five minutes later, however long it took, two people come
in with firearms. He didn’t need a lineup. He was pretty good.
(Tr. 311.) Contrary to appellant’s assertion, the record reflects that Suleiman’s
statement about appellant looking suspicious was based on Suleiman’s observations
rather than appellant’s race.
For all of the foregoing reasons, we find no basis upon which to
conclude that appellant’s convictions for aggravated robbery, aggravated burglary,
felonious assault, kidnapping, and having weapons while under disability are
against the manifest weight of the evidence. This is not an exceptional case in which
the evidence weighs heavily against appellant’s convictions or that the jury clearly
lost its way in finding appellant guilty. Accordingly, appellant’s first assignment of
error is overruled.
III. Conclusion
After thoroughly reviewing the record, we affirm the trial court’s
judgment. Appellant’s convictions are not against the manifest weight of the
evidence, and appellant’s convictions for aggravated burglary were supported by
sufficient evidence.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR