State v. Crawley , 2023 Ohio 1492 ( 2023 )

[Cite as State v. Crawley, 2023-Ohio-1492.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 21AP-658
Plaintiff-Appellee/ : (C.P.C. No. 20CR-2202)
Cross-Appellant,
: and
v.
: No. 21AP-659
Timmaree S. Crawley. (C.P.C. No. 20CR-2201)
:
Defendant-Appellant/ (REGULAR CALENDAR)
Cross-Appellee :
D E C I S I O N
Rendered on May 4, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers, for State of Ohio.
On brief: Campbell Law, LLC, and April F. Campbell, for
Timmaree S. Crawley.
APPEALS from the Franklin County Court of Common Pleas
BOGGS, J.
{¶ 1} Defendant-appellant/cross-appellee, Timmaree S. Crawley, appeals from his
judgments of conviction and sentence in the Franklin County Court of Common Pleas.
Crawley challenges his convictions for three counts of robbery, two counts of grand theft of
a firearm, and two counts of having a weapon while under a disability. Plaintiff-
appellee/cross-appellant, the State of Ohio, has filed a cross-appeal, in which it challenges
the sentence the trial court imposed with respect to firearm specifications attached to
Crawley’s robbery offenses. For the following reasons, we affirm Crawley’s convictions,
reverse his sentence, and remand this matter to the trial court for resentencing.
Nos. 21AP-658 and 21AP-659 2
I. FACTS AND PROCEDURAL BACKGROUND
A. Indictments
{¶ 1} In May 2020, the Franklin County Grand Jury returned two indictments
against Crawley. In the first, Franklin C.P. No. 20CR-2201, Crawley was charged with two
counts of attempted murder with firearm specifications, two counts of felonious assault
with firearm specifications, discharge of a firearm on or near a prohibited premises with a
firearm specification, improper handling of a firearm in a motor vehicle, and two counts of
having a weapon while under a disability. Those charges involved conduct alleged to have
occurred on May 12 and 17, 2020. The second indictment, Franklin C.P. No. 20CR-2202,
charged Crawley with improperly handling a firearm in a motor vehicle, three counts of
robbery, three counts of grand theft of a firearm, receiving stolen property, and five counts
of having a weapon while under a disability. The robbery, grand theft, and receiving-stolen-
property charges in case No. 20CR-2202 contained firearm specifications. The charges in
that case involved conduct alleged to have occurred on March 29, April 10, April 12, April 17,
and May 4, 2020.
{¶ 2} The trial court granted the state’s motion to join Count 6—for improper
handling of a firearm in a motor vehicle on May 17, 2020—and Count 8—for having a
weapon while under a disability on May 17, 2020—from case No. 20CR-2201 with case No.
20CR-2202 for purposes of trial. The court also granted the state’s request to dismiss
without prejudice the remaining charges in case No. 20CR-2201.
B. Trial
{¶ 3} The parties tried the remaining 15 counts to a jury. Following the conclusion
of the state’s case, the trial court denied a Crim.R. 29 motion for acquittal made by Crawley.
{¶ 4} For purposes of this appeal, we are primarily concerned with the evidence
that relates to the offenses committed on April 10, April 12, and April 17, 2020. It was
alleged that on each of those dates, Crawley posed as a prospective purchaser of a used
firearm and then stole the firearm from the seller. We also review the evidence regarding
the events of March 29, May 4, and May 17, 2020 to the extent the evidence is relevant to
our analysis of Crawley’s assignments of error.
Nos. 21AP-658 and 21AP-659 3
1. March 29, 2020
{¶ 5} On March 29, 2020, Columbus Police Officer Joshua Grice responded to a
call of shots fired in the North Linden area of Columbus. The suspect had been described
to Grice as “a younger male, black, wearing a red hoodie and black pants or a red sweatshirt,
red shirt and black pants” who had gotten into a small red car. (Oct. 12, 2021 Tr. Vol. II at
400.) Officer Grice, who was on patrol a couple streets away, initiated a traffic stop of a red
Chevrolet in which Crawley was the front-seat passenger. Officers recovered firearms from
the floorboard underneath the driver’s seat and from the vehicle’s glove box. When asked
by Officer Grice, Crawley provided as his home address 1731 Carolyn Avenue.
{¶ 6} Crawley was charged with and found guilty of improper handling of a firearm
in a motor vehicle and having a weapon while under a disability as a result of the March 29
traffic stop. He does not challenge those convictions in this appeal.
1. April 10, 2020
{¶ 7} On April 10, 2020, Dennis Glassburn received an email from a prospective
purchaser of a firearm he had listed for sale on the website ARMSLIST. Glassburn arranged
to meet the purchaser, who had identified himself as Derrick Fisher, at a gas station in
Franklin County. After the initial contact by email, Glassburn communicated with the
prospective purchaser by text message. The prospective purchaser communicated with
Glassburn from a telephone number that Crawley had provided to the police as his
telephone number in an unrelated interview on March 11, 2020.
{¶ 8} Glassburn testified that a man approached him at the gas station, sat in the
passenger seat of Glassburn’s pickup truck, and said, “ ‘hi, I’m Derrick. I’m here to see the
gun.’ ” (Tr. at 273.) Glassburn described the man to police as a black male, about six feet
tall, with a thin build and braids. Glassburn testified that the man took the gun, looked at
it for a few minutes, asked some questions about it, and then opened the passenger door
and ran away with the gun without paying for it. The gun was operable, but unloaded, at
the time of the theft. Glassburn picked Crawley out of a photo array about two weeks later
(Ex. F), and he again identified Crawley at trial as the man who stole his gun.
{¶ 9} Columbus Police recovered the stolen gun on May 14, 2020, from a person
named Shavale Johnson.
Nos. 21AP-658 and 21AP-659 4
{¶ 10} Based on the events of April 10, 2020, Crawley was charged with and
convicted of robbery, grand theft of a firearm, and having a weapon while under a disability.
Crawley challenges the robbery conviction on appeal.
2. April 12, 2020
{¶ 11} On April 12, 2020, Daniel Lee Persinger, II, was contacted via email by a
prospective purchaser regarding a firearm Persinger had listed for sale on ARMSLIST.
Persinger agreed to meet the purchaser at 1731 Carolyn Avenue in Columbus—an address
that Crawley had previously provided to police as his own during the March 29 traffic stop
and the March 11 police interview.
{¶ 12} When Persinger arrived at 1731 Carolyn Avenue, he received a text from the
purchaser, telling him to pull behind the apartment building next door. The purchaser
stated that he had to get money for the gun purchase and that he would be walking back.
Unlike with the April 10 incident, the record does not contain copies of the text messages
between Persinger and the purchaser or the telephone number that the purchaser used.
{¶ 13} After Persinger moved behind the apartment building, a black man wearing
a black hoodie with the hood up approached Persinger’s vehicle on foot and introduced
himself as Josh.1 Persinger exited his car, greeted the man, and showed him the unloaded
but operable gun in its case. While the purchaser was holding and inspecting the gun,
Persinger complied with the request from a woman—Traiona Hicks—who had exited the
apartment in front of Persinger’s parked car and asked him to move further along the lot.
Meanwhile, the purchaser fled with the gun through a gap between the apartment buildings
without paying.
{¶ 14} Persinger was unable to identify the perpetrator from a photo array that
included a photograph of Crawley, and at trial he was unable to identify Crawley as the
person who stole his gun.
{¶ 15} Hicks also testified at Crawley’s trial about the events of April 12, 2020.
Hicks, who observed the perpetrator close the gun case and run, confirmed Persinger’s
description of the perpetrator as a black man wearing a black hoodie, but she added that
1Persinger did not remember giving the detective who investigated the theft a last name for the perpetrator,
but he stated that if the detective stated that Persinger had given him the name of Joshua Collins, he would
have no reasons to dispute that. He stated, “if I think about it, I believe that may have come from the email
exchange I gave to the police.” (Tr. at 321.)
Nos. 21AP-658 and 21AP-659 5
the man had short dreadlocks, with his hair pulled up in back. Hicks had previously seen
and spoken to the perpetrator in the neighborhood. Hicks directed the police to a yellow
house in which she thought the perpetrator lived with his grandparents and from which she
had seen him coming and going. The address of that house was 1731 Carolyn Avenue, the
same address the purchaser had directed Persinger to meet him at and that Crawley had
previously given to police as his own. Hicks identified the perpetrator to police as
something to the effect of “Timmarion,” which is similar to Crawley’s first name, Timmaree.
{¶ 16} On May 19, 2020, Hicks identified Crawley from a photo array as the person
she saw flee with the gun on April 12. (Ex. F & I; Tr. at 366, 423.) On the morning that
Hicks was scheduled to testify at Crawley’s trial, however, she recognized Crawley’s sister,
whom she knew from school, in the courtroom. She then told the prosecutors for the first
time that the person she saw on April 12 might have been someone other than Crawley.
During her testimony, Hicks stated that Crawley, as she observed him in the courtroom,
was not the suspect she saw on April 12, claiming that he appeared lighter than the person
she saw and that his eyes were different. Yet Hicks also stated that the person she picked
out of the photo array was the person she saw take the gun on April 12, 2020.
{¶ 17} Crawley was charged and convicted of robbery, grand theft of a firearm, and
having a weapon while under a disability as a result of the April 12 incident. He challenges
all three convictions.
3. April 17, 2020
{¶ 18} On April 17, 2020, Joshua Tanski arranged by email to sell a firearm that he
had offered for sale on ARMSLIST. The prospective purchaser’s email address was
JoshCollins894@yahoo.com. Tanski agreed to meet the purchaser at a gas station in
Columbus. When the prospective purchaser arrived, Tanski asked for identification, but
the prospective purchaser stated that he didn’t have it and asked to use Tanski’s phone.
When Tanski reached for his phone, the prospective purchaser grabbed the firearm from
Tanski’s vehicle and ran. The firearm was operable but unloaded on April 17, 2020.
{¶ 19} Columbus Police Officer Aaron Getzinger responded to Tanski’s report of the
theft. Tanski described the suspect to Officer Getzinger as a skinny, black male with longer
braids, wearing a red tracksuit. Tanski also told Officer Getzinger that the person who stole
his gun had a tattoo on his right forearm or wrist. At trial, Tanski identified the man
Nos. 21AP-658 and 21AP-659 6
pictured in still photos from the gas station’s surveillance video as the man who stole his
gun, but he could not identify that person as Crawley. The surveillance video and still
photographs were admitted into evidence.
{¶ 20} Tanski told Officer Getzinger that the person who stole his gun had identified
himself as Joshua Collins, and he provided the officer with the email address that person
had used to communicate with him. When Officer Getzinger investigated “Josh Collins,”
he found a Josh Collins who had been killed in a home invasion a few years earlier. (Tr.
Vol. III at 528.) He considered that someone close to the deceased Josh Collins might have
used his identity to commit this crime. Officer Getzinger identified two family members of
the deceased Josh Collins who fit the general physical description of the suspect, one of
whom had a tattoo on his right forearm. Officer Getzinger mentioned those relatives, Keith
and Lazelle Collins, in his report as an investigative lead for the detective who would be
assigned to the case.
{¶ 21} Crawley was charged and convicted of robbery, grand theft of a firearm, and
having a weapon while under a disability as a result of the April 17, 2020 incident. He
challenges all three convictions.
4. May 4, 2020
{¶ 22} On May 4, 2020, Columbus Police Officer Tavien Schwendeman and other
officers responded to a report of a fight with a weapon in a room at a Red Roof Inn in
Columbus. Crawley was 1 of 11 people present in that room. Officer Schwendeman
recovered from the room three firearms, two of which were hidden in the toilet tank, and
one of which was inside a Cheetos bag. (Tr. Vol. II at 388; Ex. K1 at 11:10, 19:50.) The
firearm found in the Cheetos bag was identified as the firearm that had been stolen from
Persinger on April 12. (Tr. at 315-17, 381-82.) At trial, Officer Schwendeman identified
Crawley’s telephone number from the May 4 incident report (id. at 393); that number was
the same as the telephone number from which the perpetrator from April 10 communicated
with Glassburn.
{¶ 23} Crawley was charged with receiving stolen property and having a weapon
while under a disability as a result of the May 4 incident, but the trial court granted a
mistrial on those charges because the jury was unable to reach a verdict.
Nos. 21AP-658 and 21AP-659 7
5. May 17, 2020
{¶ 24} On May 17, 2020, while on routine parole, Officer Grice initiated a traffic stop
on a silver Dodge Durango with temporary Ohio tags registered to Crawley, whom Officer
Grice knew to have outstanding arrest warrants. Crawley was wearing a red sweatshirt with
a Nike insignia on the left wrist. (Id. at 420.) The officers took Crawley into custody and
impounded his vehicle. A subsequent search of the impounded vehicle uncovered a gun
magazine with ten bullets, a clip, and a handgun. (Id. at 476-479.)
{¶ 25} Crawley was charged with and convicted of improperly handling a firearm in
a motor vehicle and having a weapon while under a disability in relation to the May 17 traffic
stop. He does not challenge those convictions.
C. Sentencing
{¶ 26} Following preparation of a pre-sentence investigation and the parties’
sentencing memoranda, the trial court sentenced Crawley on November 10, 2021. The
court determined that the three grand theft offenses merged with the three robbery
offenses, and the state elected to proceed to sentencing on the robbery offenses—Counts 2,
4, and 6. The court imposed indeterminate sentences of three to four and one half years on
each of the robbery counts and ordered those sentences to run consecutively to each other
and to an additional one-year sentence on the firearm specification attached to Count 2.
The court imposed 12-month sentences on Counts 1, 9, 10, 11, 12, 14, and 15, to run
concurrently with each other and with the remaining sentences. On December 14, 2021,
the trial court filed an amended sentencing entry in case No. 20CR-2202, which included
the additional language, “all Firearm specifications to run Concurrently to each other.”
(Capitalization sic.) (Dec. 14, 2021 Am. Jgmt. Entry at 2.) At the sentencing hearing, and
as evidenced by its judgment entries, the trial court rejected the state’s argument that the
court was required to impose a one-year, consecutive sentence for each of the firearm
specifications attached to the three robbery counts.
D. Appeal and cross-appeal
{¶ 27} Crawley appeals his robbery convictions, as well as his convictions for other
offenses committed on April 12 and April 17, 2020. In its cross-appeal, the state appeals
the trial court’s sentence with respect to the firearm specifications.
Nos. 21AP-658 and 21AP-659 8
II. ASSIGNMENTS OF ERROR
{¶ 28} Crawley raises five assignments of error:
[1.] Because statutory construction does not allow for an
unarmed suspect to be convicted of robbery simply because the
item he steals is a gun, Crawley’s convictions for Robbery
should be reversed.
[2.] The trial court erred in not granting Crawley’s Crim.R. 29
motion for three counts of robbery, because the evidence
against him was legally insufficient.
[3.] The trial court erred in not granting Crawley’s Crim.R. 29
motion for the April 12, 2020, offenses because the evidence
identifying Crawley as the suspect was legally insufficient.
[4.] The trial court erred in not granting Crawley’s Crim.R. 29
motion for the April 17, 2020, offenses because the evidence
identifying Crawley as the suspect was legally insufficient.
[5.] Because the evidence weighed manifestly against
convicting Crawley for all three robbery convictions, for all
offenses arising from 4/12/20 and 4/17/20, Crawley’s
convictions should be reversed.
(Crawely’s Brief at v.)
{¶ 29} In its cross-appeal, the state presents a single assignment of error:
THE TRIAL COURT’S SENTENCE, ORDERING THE
MULTIPLE ONE-YEAR FIREARM SPECIFICATIONS TO BE
SERVED CONCURRENTLY WITH EACH OTHER, WAS
CONTRARY TO THE LAW, AS THE FIREARM
SPECIFICATIONS WERE ATTACHED TO SEPARATE
TRANSACTIONS.
(State’s Brief at i.)
III. ANALYSIS
A. First and Second Assignments of Error
{¶ 30} In his first and second assignments of error, Crawley challenges his three
convictions for robbery pursuant to R.C. 2911.02(A), which states, in part, “[n]o person, in
attempting or committing a theft offense or in fleeing immediately after the attempt or
Nos. 21AP-658 and 21AP-659 9
offense shall * * * (1) Have a deadly weapon on or about the offender’s person or under the
offender’s control.” In his first assignment of error, Crawley maintains that R.C. 2911.02(A)
“does not allow an unarmed suspect to be convicted of robbery simply because the item he
steals is a gun.” (Crawley’s Brief at 14.) In his second assignment of error, he similarly
argues that there was insufficient evidence to support his convictions for robbery because,
even assuming he committed the theft offenses against Glassburn, Persinger, and Tanski,
there was no evidence that he was armed at the time of the offenses.
{¶ 31} “The primary goal of statutory construction is to ascertain and give effect to
the legislature's intent in enacting the statute.” State v. Lowe, 112 Ohio St.3d 507, 2007-
Ohio-606, ¶ 9. When the terms of a statute are clear and unambiguous, we apply the statute
as written, without interpretation. Doe v. Greenville City Schools, __ Ohio St.3d __, 2022-
Ohio-4618, ¶ 21. We may look beyond the plain statutory language only when a definitive
meaning remains elusive despite a thorough, objective examination of the language. Ohio
Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, ¶ 23, citing State v.
Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 11.
{¶ 32} Crawley argues that R.C. 2911.02(A) linguistically treats the object of the theft
distinctly from the weapon in the offender’s possession, such that the deadly weapon in the
offender’s possession cannot be the object of the theft offense. We disagree. A person is
guilty of robbery if the offender “[has] a deadly weapon on or about the offender’s person
or under the offender’s control” in any of four situations—(1) while attempting to commit a
theft offense, (2) while committing a theft offense, (3) while fleeing immediately after
attempting to commit a theft offense, or (4) while fleeing immediately after committing a
theft offense. The statutory language is unambiguous, and contrary to Crawley’s preferred
reading, it does not suggest that an offender must have on or about his person a firearm
separate from a firearm that is the object of the theft offense. If a person commits a theft
offense by stealing a deadly weapon, which the offender then has on his person while fleeing
immediately after committing the theft offense, the offender is guilty of robbery. Because
the statutory language is plain and unambiguous, we may not look to canons of statutory
interpretation; we must apply the statutory language as written.2 See Jacobson v. Kaforey,
2 Thus, Crawley’s invocation of the rule of lenity and his invitation for this court to read R.C. 2911.02(A) in
pari materia with other criminal statutes is misplaced. See State v. Arnold, 61 Ohio St.3d 175, 178 (1991)
(“ ‘rule of lenity’ applies only where there is ambiguity in or conflict between * * * statutes”); State ex rel.
Nos. 21AP-658 and 21AP-659 10
149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 8, citing Sears v. Weimer, 143 Ohio St. 312 (1944),
paragraph five of the syllabus.
{¶ 33} The Supreme Court of Ohio has addressed and rejected the argument that
Crawley makes here, albeit in a case involving a different statute. In State v. Campbell, 90
Ohio St.3d 320 (2000), the defendant challenged his conviction for a firearm specification
under R.C. 2941.145, which was attached to a charge of aggravated robbery. The basis of
the aggravated robbery charge was the theft of a sheriff deputy’s service pistol, and the basis
for the firearm specification was the defendant’s possession of the stolen pistol. Campbell
argued that the firearm specification could not apply when the firearm used to satisfy the
requirements of the specification was also the object of the theft itself, i.e., “ ‘when the stolen
firearm is the only firearm involved.’ ” Id. at 331. The Supreme Court rejected Campbell’s
argument and stated, “At the time he took the gun, he was committing a theft, and he
obviously had the gun ‘on or about [his] person or under [his] control.’ ” Id., quoting R.C.
2941.145. In further considering whether Campbell displayed, brandished, or indicated
possession of the firearm or used it to facilitate the aggravated robbery, as required under
R.C. 2941.145(A), the court noted that aggravated robbery, like robbery here, “includes the
flight immediately after the theft.” Id. at 332. It stated, “if Campbell did ‘display,’
‘brandish,’ ‘use,’ or ‘indicate that [he] possessed’ a ‘deadly weapon’ while fleeing
immediately after he stole it from [the deputy], he was engaged in aggravated robbery
during his flight.” Id., quoting R.C. 2941.145. Likewise, if Crawley had a firearm on or about
his person or under his control while feeling immediately after he stole it from Glassburn,
Persinger, or Tanski, he was engaged in robbery during his flight.
{¶ 34} For these reasons, we reject Crawley’s argument that an offender cannot be
found guilty of robbery under R.C. 2911.02(A) based on the offender’s possession of a
firearm while feeling immediately after stealing that firearm. We therefore overrule
Crawley’s first assignment of error.
{¶ 35} Crawley’s second assignment of error, in which he challenges the sufficiency
of the evidence with respect to his robbery convictions, stems directly from the statutory
construction argument we have already rejected. Crawley argues that the record contains
Celebrezze v. Bd. of Cty. Commrs., 32 Ohio St.3d 24, 27-28 (1987) (in pari materia rule of construction “is
limited to those situations where some doubt or ambiguity exists in the wording of a statute.”).
Nos. 21AP-658 and 21AP-659 11
insufficient evidence to establish his guilt for robbery because there was no allegation, let
alone evidence, that he had a weapon on him prior to stealing the firearms from Glassburn,
Persinger, or Tanski. (Crawley’s Brief at 19.) As stated in our analysis of Crawley’s first
assignment of error, if Crawley had a firearm on or about his person while fleeing
immediately after committing a theft offense, he was guilty of robbery under R.C.
2911.02(A). The evidence demonstrates that Crawley had a firearm on or about his person
in each instance while fleeing immediately after the theft offenses committed against
Glassburn, Persinger, and Tanski. We accordingly overrule Crawley’s second assignment
of error.
B. Third and Fourth Assignments of Error
{¶ 36} In his third and fourth assignments of error, Crawley argues that the trial
court erred in denying his Crim.R. 29 motion for acquittal as to the offenses stemming from
April 12 and 17, 2020 because there was insufficient evidence to identify him as the
perpetrator of those offenses. Because a Crim.R. 29 motion for acquittal challenges the
sufficiency of the evidence, we apply the same standard of review to a denial of Crim.R. 29
motion as we apply to a challenge to the sufficiency of the evidence. State v. Ndiaye, 10th
Dist. No. 19AP-10, 2020-Ohio-1008, ¶ 22.
{¶ 37} When reviewing a challenge to the sufficiency of the evidence, an appellate
court asks whether, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found that the essential elements of the
crime had been proved beyond a reasonable doubt.” State v. McFarland, 162 Ohio St.3d
36, 2020-Ohio-3343, ¶ 52. Evaluation of witness credibility is not appropriate when
reviewing the sufficiency of the evidence. State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 79. Instead, “ ‘[t]he court essentially assumes that state’s witnesses testified
truthfully and determines whether that testimony satisfies each element of the crime.’ ”
State v. Hawkins, 10th Dist. No. 19AP-546, 2021-Ohio-2899, ¶ 44, quoting State v. Davis,
10th Dist. No. 18AP-921, 2019-Ohio-4692, ¶ 38, citing State v. Bankston, 10th Dist. No.
08AP-668, 2009-Ohio-754, ¶ 4. Whether the evidence is legally sufficient to support a
verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶ 38} To the extent they differ from his arguments under his first and second
assignments of error, Crawley’s sufficiency arguments in his third and fourth assignments
Nos. 21AP-658 and 21AP-659 12
of error stem from his belief that there was insufficient evidence to prove that he was the
person who committed the offenses on April 12 and 17. (Crawley’s Brief at 24.) “Every
criminal prosecution requires proof that the person accused of the crime is the person who
committed the crime. This truism is reflected in the state’s constitutional burden to prove
the guilt of ‘the accused’ beyond a reasonable doubt.” State v. Tate, 140 Ohio St.3d 442,
2014-Ohio-3667, ¶ 15, citing In re Winship, 397 U.S. 358, 364 (1970). Identification can be
demonstrated through either direct or circumstantial evidence. Id. Both classes of
evidence have equal probative value. State v. Nicely, 39 Ohio St.3d 147, 151 (1988). Indeed,
it is “well-settled under Ohio law that a defendant may be convicted solely on the basis of
circumstantial evidence.” Id.
1. April 12 offenses
{¶ 39} With respect to the April 12, 2020 offenses, Crawley claims that, even viewing
the evidence in the light most favorable to the prosecution, no rational trier of fact could
have concluded that he was the person who stole Persinger’s gun. Crawley points to
Persinger’s inability to identify Crawley in a photo array or at trial and to the absence of
identifying information, such as a telephone number, that connected Crawley to the person
with whom Persinger had communicated. Crawley also argues that Hicks’s testimony was
insufficient because she could not identify Crawley at trial as the person she saw on April 12
and, instead, stated that he was not the person she saw that day.
{¶ 40} It is true that neither Persinger nor Hicks identified Crawley at trial as the
person who stole the gun on April 12, 2020. The absence of an in-court identification,
however, is not determinative. “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.” Tate at ¶ 19.
{¶ 41} Persinger provided the police with only a vague description of the person who
stole his gun—a black man wearing a black hoodie. Hicks, who had also observed the
offender, likewise described him as a black man wearing a black hoodie. Unlike Persinger
though, Hicks had previously seen the offender around the neighborhood. She directed the
police to a yellow house located across the driveway from her apartment, at 1731 Carolyn
Avenue, where she believed the offender lived with his grandparents. The address of the
yellow house was the address at which the prospective purchaser had instructed Persinger
Nos. 21AP-658 and 21AP-659 13
to meet him (Tr. at 301) and an address that Crawley had previously claimed as his own.
Hicks also told the police that she knew the offender as “Timmarion,” or “something like
that.” (Tr. at 347-48.) Crawley’s first name is Timmaree. Hicks later picked a photograph
of Crawley out of a photo array as the person she saw running away with the gun on April 12,
2020. On May 4, 2020, Columbus police recovered the gun stolen from Persinger from a
hotel room in which Crawley was present.
{¶ 42} Crawley would have the court ignore the evidence provided by Hicks between
April 12 and the day of trial, when Hicks attempted to backtrack her identification of
Crawley, after seeing Crawley’s sister in the courtroom. Hicks’s trial testimony may have
called into question the credibility of her prior statements to the police and her prior
identification of Crawley from the photo array. See State v. Lee, 7th Dist. No. 14 MA 120,
2016-Ohio-649, ¶ 57 (recantation concerns credibility of evidence); State v. Cunningham,
9th Dist. No. 19CA0081-M, 2021-Ohio-2710, ¶ 15 (conflict between victim’s stories to police
and prosecutor presented issue of credibility). Our review of the sufficiency of the evidence,
though, does not encompass an evaluation of Hicks’s credibility. Yarbrough at ¶ 79. When
an appellate court reviews a conviction for sufficiency of the evidence, “ ‘the weight and
credibility of the evidence are left to the trier of fact.’ ” State v. Herring, 94 Ohio St.3d 246,
253 (2002), quoting State v. Waddy, 63 Ohio St.3d 424, 430 (1992).
{¶ 43} After viewing the evidence in the light most favorable to the prosecution, we
easily conclude that a rational trier of fact could have found beyond a reasonable doubt that
Crawley was the perpetrator of the April 12, 2020 offenses.
2. April 17 Offenses
{¶ 44} Crawley similarly argues that his convictions for the offenses that occurred
on April 17, 2020 are not supported by sufficient evidence because neither Tanski nor any
other witness identified him as the culprit. As we have already stated, the state need not
present a witness who can physically identify the defendant in the courtroom, “as long as
there is sufficient direct or circumstantial evidence proving that the defendant was the
perpetrator.” Tate at ¶ 19. Here, we conclude that, if viewed in the light most favorable to
the state and if believed by the jury, there was sufficient evidence from which the jury could
conclude that Crawley committed the charged acts on April 17, 2020.
Nos. 21AP-658 and 21AP-659 14
{¶ 45} Tanski told Officer Getzinger that the person he had met and who had stolen
his gun had identified himself as Joshua Collins, and Tanski provided the officer with the
email address, JoshCollins894@yahoo.com, that person had used to communicate with
him. Tanski described the suspect as a skinny, black male with longer braids, wearing a red
tracksuit, and surveillance video and photographs of the suspect confirm Tanski’s
description. At trial, Tanski identified the man pictured in those photos as the man who
stole his gun. He could not, however, state that Crawley—sitting in the courtroom—was
that man.
{¶ 46} Despite Tanski’s inability to identify Crawley as the person shown in the
surveillance videos and photos, the jury itself was competent to compare those images with
its observations of Crawley at trial and to decide the issue of identity. In another context,
this court held that a “jury was able to compare [a] photograph admitted into evidence with
the physical appearance of appellant whom they had seen in the courtroom” to judge the
credibility of a witness that the photograph depicted the appellant. State v. Collier, 10th
Dist. No. 97APA11-1459, 1998 Ohio App. LEXIS 3806, *11 (Aug. 20, 1998); see also Tate,
at ¶ 19 (stating that, even in the absence of witness identification of the defendant, the jury
could find proof of the defendant’s identity from the evidence, including surveillance
video). Many courts have condoned proof of identity by a jury’s comparison of surveillance
images with the appearance of the defendant in the courtroom. See United States v.
LaPierre, 998 F.2d 1460, 1465 (9th Cir.1993) (“The jury * * * was able to view the
surveillance photos and [the defendant] and make an independent determination whether
it believed that the individual pictured in the photos was in fact [the defendant]. * * *
Whether the person sitting before the jury was the one pictured in the surveillance
photographs was a determination properly left to the jury”); United States v. Fulton, 837
F.3d 281 (3d Cir.2016) (holding that lay opinion testimony identifying the person pictured
in surveillance footage as one of the defendants was inadmissible because the witnesses
“were no better equipped than the jurors” to compare the suspect’s appearance with that of
the defendant at trial; “the jury was able to view the surveillance photographs and compare
them to the” defendants’ appearances); State v. Lazo, 209 N.J. 9, 23 (2012) (“when there
is no change in a defendant’s appearance, juries can decide for themselves * * * whether the
person in a photograph is the defendant sitting before them”); State v. Spaw, 301 P.3d 788Nos. 21AP-658 and 21AP-659 15
2013 Kan. App. Unpub. LEXIS 432 (May 17, 2013) (jurors were able to view surveillance
videos and determine if the defendant was the man pictured). Here, not only were jurors
able to compare the surveillance video and photos from the April 17, 2020 offenses to their
observations of Crawley in the courtroom, but they were also able to compare the images
from April 17 with the surveillance video from April 10, in light of Glassburn’s identification
of Crawley as the person depicted in the April 10, 2020 video. Furthermore, Officer Grice
identified Crawley as the person pictured in a still photograph from the April 17 offenses.
(Tr. at 440-41.)
{¶ 47} As additional circumstantial evidence of identity, the jury could consider that
the perpetrator shown in the April 17, 2020 surveillance video and photos was wearing a
distinctive red shirt that appeared to match the red shirt that Crawley was wearing on
May 4, when he was identified by Officer Schwendeman at the Red Roof Inn, and again on
May 17, when he was stopped by Officer Grice. Police collected Crawley’s red shirt after the
May 17 traffic stop, and it was admitted into evidence at trial. Still photographs taken from
police bodycam footage on both May 4 and May 17, 2020 show Crawley wearing that shirt.
{¶ 48} After viewing the evidence in the light most favorable to the prosecution, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that
Crawley was the perpetrator of the April 17, 2020 offenses.
{¶ 49} For these reasons, we overrule Crawley’s third and fourth assignments of
error.
C. Fifth Assignment of Error
{¶ 50} In his fifth assignment of error, Crawley argues that his convictions for
robbery on April 10 and for all the offenses stemming from April 12 and 17 were against the
manifest weight of the evidence. A challenge to the manifest weight of the evidence
presents a question of persuasion. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, ¶ 19. When reviewing a manifest weight challenge, an appellate court “ ‘weighs the
evidence and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its
way.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983). “A judgment should be reversed as against the
manifest weight of the evidence only on the rare occasion when the evidence weighs heavily
Nos. 21AP-658 and 21AP-659 16
against conviction.” State v. Long, 10th Dist. No. 96APA04-511, 1997 Ohio App. LEXIS
416, *23 (Feb. 6, 1997).
{¶ 51} Crawley’s argument with respect to his robbery convictions amounts to
nothing more than a restatement of his arguments from his first and second propositions
of law—that there was no evidence that he had, purported to have, or used a weapon prior
to stealing the guns from Glassburn, Persinger, and Tanski. But as we have already held,
possession of a firearm while fleeing immediately after committing a theft offense
establishes the commission of robbery. The absence of evidence that Crawley had a firearm
prior to stealing one from the victims does not demonstrate that his convictions for robbery
were contrary to the manifest weight of the evidence.
{¶ 52} Crawley’s convictions for the April 12 offenses were not against the manifest
weight of the evidence. While Hicks denied at trial that Crawley was the offender she saw
on April 12, the jury was presented with contradictory evidence of Hicks’s statements to the
police on April 12, as well as evidence that she picked Crawley out of a photo array as the
offender. A trier of fact is free to believe or disbelieve any, or all, of the testimony and “is in
the best position to take into account inconsistencies, along with the witnesses’ manner and
demeanor and determine whether the witnesses’ testimony is credible.” State v. Eisenman,
10th Dist. No. 10AP-809, 2011-Ohio-2810, ¶ 16. The jury could reasonably have believed
Hicks’s statements to the police and her identification of Crawley from the photo array, as
well as the circumstantial evidence that Persinger was instructed to meet his prospective
purchaser at an address previously claimed by Crawley as his own and that Persinger’s
stolen firearm was recovered from a hotel room in which Crawley was present. We cannot
say that the jury clearly lost its way and created a manifest miscarriage of justice by finding
Crawley guilty of the April 12, 2020 offenses.
{¶ 53} Finally, we reject Crawley’s argument that his convictions for the April 17
offenses were against the manifest weight of the evidence. While Crawley points to
evidence that Officer Getzinger identified two relatives of the deceased Josh Collins who
matched Tanski’s description of the offender, we do not agree with Crawley that those
persons were just as likely to have been the offender. The photos that Officer Getzinger
obtained of Keith and Lazelle Collins were admitted into evidence, and the jury was entitled
to compare those photographs to the photographs from the April 17 surveillance video.
Nos. 21AP-658 and 21AP-659 17
Moreover, Officer Getzinger testified that he did not consider Keith and Lazelle Collins
suspects in the April 17 offenses, but that he merely provided their identities as an
investigative lead for the detective. Officer Getzinger stated that he never received any
additional information to suggest that either Keith or Lazelle Collins was involved in the
April 17 offenses. Indeed, there was no evidence whatsoever from which the jury could have
concluded that Keith or Lazelle Collins, rather than Crawley, committed the April 17
offenses. The jury did not lose its way in finding Crawley guilty of the April 17, 2020
offenses.
{¶ 54} For these reasons, we overrule Crawley’s fifth assignment of error.
D. Cross-Appeal
{¶ 55} In its cross-appeal, the state argues that the trial court erred by ordering,
contrary to law, that Crawley serve the sentences for his three firearm specifications
concurrently. Pursuant to R.C. 2953.08(G)(2)(b), we may “increase, reduce, or otherwise
modify a sentence * * * or may vacate the sentence and remand the matter to the sentencing
court for resentencing” if we “clearly and convincingly find” that the sentence is contrary to
law.
{¶ 56} Crawley’s three robbery counts—Counts 2, 4, and 6—each contained a one-
year firearm specification pursuant to R.C. 2929.141(A). The jury concluded that Crawley
had a firearm on his person or under his control while committing each of the robbery
offenses. At Crawley’s sentencing hearing, the court ordered, “the firearm specifications in
Counts Two, Four and Six will run concurrent to each other.” (Nov. 10, 2021 Tr. at 15.) The
court noted the state’s objection to the court’s running of the specifications concurrently
and its argument that the court was required to run the sentences on the firearm
specifications consecutively to each other and to any other sentences because the robberies
were committed as separate transactions on different dates.
{¶ 57} The trial court’s first judgment entry set out the jury’s findings of guilt on
Counts 2, 4, and 6, but it did not state the jury’s findings with respect to the firearm
specifications. It then states, in pertinent part:
The Court hereby imposes the following sentence of
incarceration: THREE TO FOUR AND [ONE] HALF (3-
4.5) YEARS INDETERMINATE SENTENCE AS TO
COUNTS TWO, FOUR, AND SIX ALL TO RUN
CONSECUTIVE, AND CONSECUTIVE TO THE ONE (1)
Nos. 21AP-658 and 21AP-659 18
YEAR FIREARM SPECIFICATION ON COUNT TWO,
TOTAL SENTENCE OF TEN TO ELEVEN AND ONE
HALF (10-11.5) YEARS TO BE SERVED at the OHIO
DEPARTMENT OF REHABILITATION AND
CORRECTION.
(Emphasis sic.) (Nov. 17, 2020 Jgmt. Entry at 2.) The judgment entry did not impose a
sentence on, or even mention, the firearm specifications that related to Counts 4 or 6.
{¶ 58} An amended judgment entry, filed approximately a month later, states that
the jury returned a verdict of “GUILTY as to Counts Two, Four, and Six of the
Indictment, to-wit: Robbery, in violation of Section 2911.02 of the Ohio
Revised Code, being Felonies of the Second Degree with One (1) year firearm
specification.” (Emphasis sic.) (Dec. 14, 2021 Am. Jgmt. Entry at 1.) The amended
judgment entry repeated the above quoted language regarding sentencing, but added, “The
Court Orders all Firearm specifications to run Concurrently to each other.”
(Emphasis and capitalization sic.) Id. at 2. As with the original judgment entry, the
amended judgment entry did not impose a sentence on the firearm specifications to Counts
4 or 6.
{¶ 59} A trial court’s failure to impose a sentence on every firearm specification for
which a defendant has been found guilty may be remedied on appeal. State ex rel. Jones v.
Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, ¶ 2. Even ignoring the trial court’s failure to
specify a sentence for the firearm specifications attached to Counts 4 and 6, we clearly and
convincingly find that the trial court erred by ordering “all Firearm specifications to
run Concurrently to each other,” (emphasis and capitalization sic) (Am. Jgmt. Entry
at 2), and that Crawley’s sentence is therefore contrary to law.
{¶ 60} R.C. 2929.14(B)(1)(a)(iii) states:
Except as provided in division (B)(1)(e) of this section, if an
offender who is convicted of * * * a felony also is convicted of
* * * a specification of the type described in section 2941.141
* * * of the Revised Code, the court shall impose * * * [a] prison
term of one year if the specification is of the type described in
division (A) of section 2941.141 of the Revised Code that
charges the offender with having a firearm on or about the
offender’s person or under the offender’s control while
committing the offense.
Nos. 21AP-658 and 21AP-659 19
Pursuant to that section, one-year sentences for the firearm specifications attached to
Crawley’s robbery offenses were mandatory.
{¶ 61} R.C. 2929.14(C)(1)(a) states:
[I]f a mandatory prison term is imposed upon an offender
pursuant to division (B)(1)(a) of this section for having a
firearm on or about the offender’s person or under the
offender’s control while committing a felony, * * * the offender
shall serve the mandatory prison term [for the specification]
consecutively to any other mandatory prison term imposed
under [division (B)(1)(a)], consecutively to and prior to any
prison term imposed for the underlying felony * * * and
consecutively to any other prison term or mandatory prison
term previously or subsequently imposed upon the offender.
Pursuant to that section, the sentences for Crawley’s firearm specifications were required
to be served consecutively to each other and to the sentences imposed for the underlying
felonies.
{¶ 62} That said, R.C. 2929.14(B)(1)(b) limits a trial court’s authority to impose
sentences for multiple firearm specifications that are attached to felonies that were
committed as part of the same act or transaction. It states, “[e]xcept as provided in [R.C.
2929.14(B)(1)(g)], a court shall not impose more than one prison term on an offender under
division (B)(1)(a) of this section [for firearm specifications attached to] felonies committed
as part of the same act or transaction.” Id. The Supreme Court of Ohio has defined
“transaction” as “ ‘a series of continuous acts bound together by time, space, and purpose,
and directed toward a single objective.’ ” State v. Wills, 69 Ohio St.3d 690, 691 (1994),
quoting State v. Caldwell, 9th Dist. No. 14720, 1991 Ohio App. LEXIS 5879, (Dec. 4, 1991)
*32; see also State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 211-14 (applying that
definition to R.C. 2929.14(D)(1)(b)).
{¶ 63} The armed defendant in Wills stole a coat from a student at a bus stop and
then crossed the street and stole a coat from another student. The court concluded that the
armed thefts were not part of a single transaction or series of continuous acts despite their
proximity in time and space. Wills at 691. It explained, “Wills and his cohorts singled out
Stone first, surrounded him, pulled out a gun and then under threat of force robbed him.
After completing this task, they then targeted Thomas, surrounded him, beat him, pulled
out a gun, and then robbed him. Wills should serve no less time because of the coincidental
Nos. 21AP-658 and 21AP-659 20
proximity of his two victims.” Id. See also State v. Peterson, 8th Dist. No. 109306, 2022-
Ohio-835, ¶ 16 (holding that each of four robberies constituted a different act or transaction
for purposes of R.C. 2929.14(B)(1)(b)).
{¶ 64} Crawley’s robberies were committed as separate transactions. They were not
part of a series of continuous acts. They were carried out on different dates, against
different victims, and each with its own objective. See Dean at ¶ 214. As such, R.C.
2929.14(B)(1)(b) does not apply, and the trial court was required to impose mandatory,
consecutive, one-year prison terms for each of the three firearm specifications attached to
the robbery charges. Because the trial court did not do so, its sentence is contrary to law.
State v. Bass, 10th Dist. No. 14AP-992, 2015-Ohio-3979, ¶ 23 (A trial court’s order to run
firearm specifications concurrently is contrary to law because R.C. 2929.14 specifies that
mandatory prison terms for firearm specifications must be served consecutively.).
{¶ 65} Crawley’s sentence is contrary to law, both because the trial court neglected
to impose sentences on the firearm specifications attached to Counts 4 and 6 and because
the trial court ordered that Crawley’s firearm specifications were to run concurrently. We
therefore sustain the state’s assignment of error in its cross-appeal.
IV. CONCLUSION
{¶ 66} For these reasons, we affirm Crawley’s convictions, reverse Crawley’s
sentence, and remand this matter for resentencing in accordance with this opinion and the
law.
Judgment affirmed in part,
reversed in part, and cause
remanded.
DORRIAN and JAMISON, JJ., concur.