State v. Young

101 N.E.3d 1056

2017 Ohio 9028

STATE of Ohio, Plaintiff–Appellee,

v.Clifford YOUNG, Jr., Defendant–Appellant.

No. 15AP–1144

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on December 14, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.

On brief: Timothy Young, Ohio Public Defender, and Terrence K. Scott, for appellant. Argued: Terrence K. Scott.

DECISION

HORTON, J.

{¶ 1} Defendant-appellant, Clifford Young, Jr., appeals from a December 18, 2015 judgment of the Franklin County Court of Common Pleas finding him guilty of aggravated robbery with a firearm specification, robbery with a firearm specification, felonious assault with a firearm specification, and having weapons while under disability ("WUD"). For the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 4, 2013, appellant was indicted for aggravated robbery with a firearm specification (Count 1 of the indictment), robbery with a firearm specification (Count 2 of the indictment), robbery with a firearm specification (Count 3 of the indictment), felonious assault with a firearm specification (Count 4 of the indictment), and having weapons while under a disability (Count 5 of the indictment). (Dec. 4, 2013, Indictment.)

{¶ 3} The case proceeded to trial in September 2015. However, the jury was unable to reach a verdict and the trial court declared a mistrial. (Sept. 14, 2015 Entry.) On November 9, 2015, a second trial commenced. As pertinent to this appeal, the facts are as follows. The victim, B.B., testified that she worked as a prostitute. Periodically, she would come from Lorain County to the Columbus area and rent a hotel room for up to one week to provide sex services. In January 2013, B.B. rented a room for a one-week stay at the Red Roof Inn on Brice Road in Reynoldsburg. During the early morning hours of January 11, 2013, B.B. was renting room 231 when she received a call from a person she believed to be a black male inquiring about her services. The two exchanged five phone calls between 1:38 a.m. and 2:22 a.m. Eventually, a black man arrived at her hotel room that she had never seen before and whose voice sounded like the man that called her. She identified appellant as the man who called her and as her assailant.

{¶ 4} B.B. testified regarding the altercation as follows. Appellant entered the room and looked around to ensure no one else was in the room. He asked for a cigarette and she gave him one. Appellant pulled out a gun and ordered her to give him her money. He cocked the gun and, when she realized he was serious, she grabbed the gun from him and went into the fetal position with the gun underneath her arm. Appellant then got on top of her and began punching her. She attempted to pull the trigger of the gun but it did not fire. Appellant hit and bit her, broke some of her fingernails, and tried to burn her in the face or eyes with the cigarette, but she was able to block it between her shoulder, chin, and neck. At this point, appellant was able to gain control of the gun and he used it to strike B.B. repeatedly, even after she begged for him to stop. B.B. told appellant where the money was located and he took $811, her cellphone, and a computer. He left the room for a short time and returned to take additional items. Eventually he left for good and B.B. called the Columbus Police Department for help at 2:32 a.m.

{¶ 5} The police and emergency squad arrived and she was taken to Grant Hospital. B.B. suffered numerous lacerations, a broken nose, a bite mark on her right arm, and a cigarette burn. She required stitches, plastic surgery, and had a metal pin placed in her finger. B.B. was released from the hospital on the evening of January 12, 2013 with a discharge diagnosis of a concussion, nasal fracture, a closed fracture of the distal phalanx of the finger, and facial cuts.

{¶ 6} Columbus Police Officer Ryan Van Fossan testified that he was dispatched to the scene at 2:32 a.m. When he arrived B.B. was covered in blood and he did not observe any indications that she was under the influence of drugs or alcohol. B.B. described her assailant as a black male weighing approximately 250 pounds. Detective Kevin Jackson investigated the crime scene and noted blood splatter on the mirror. The detective also did not see any evidence of illegal drug use or drug paraphernalia in the room.

{¶ 7} Columbus Police Department investigators swabbed the hotel room telephone, collected fingernail tips and a partial cigarette butt, and submitted a DNA test request for the same. The telephone swab DNA was consistent with B.B. (State's Ex. E5.) DNA from the fingernail tips matched B.B. and at least one other person, however, the appellant was excluded as a contributor. (State's Ex. E5.) DNA from the cigarette butt matched appellant. (State's Ex. E2.)

{¶ 8} On October 27, 2013, Detective Jason Wood acted as a blind administrator in showing a photo lineup to B.B. As such, he did not know which of the six black males pictured was the suspect. B.B., as well did not know which of the men pictured, if any, had been identified as a suspect. At this time, she did not know appellant's name, nor that his DNA had been matched to the cigarette.

{¶ 9} When Detective Wood administered the photo lineup, he did not realize that two of the photos, Nos. 4 and 6, were the same person, albeit different photos. Appellant's photo, No. 3, was only featured once. The detective testified that placing two of the same people in the lineup was a mistake that should have been caught by the computer system that generates the photo arrays. He also testified that he could not tell that they were the same person by looking at the array. B.B. never considered the photos in position Nos. 4 or 6 as possibilities to be the perpetrator. She focused on photos of two others, Nos. 2 and 3. B.B. told police she was 95 percent sure that No. 3, who was appellant, was the perpetrator. She noted that appellant looked heavier in the photo than he did when she saw him.

{¶ 10} B.B. also told investigators that the perpetrator had called her from a phone number starting with 614–44. Because her cellphone was stolen in the robbery, she could not look at it to find the remaining 4 numbers. Detective James Howe presented testimony derived from unauthenticated AT & T cellphone records. The state did not seek to introduce the AT & T records themselves but, rather, the analysis of information received from AT & T by way of Detective Howe's "Cellular Review." (State's Ex. I.) Detective Howe was admitted as an expert in the field of cellular phones, forensics, and analysis, without objection. Trial counsel did not object to the introduction of the records, or Detective Howe's Cellular Review, i.e., State's Ex. I.

{¶ 11} Detective Howe described that a court order for B.B.'s cellphone records was obtained and, once received, he analyzed the records, as well as the area, and prepared a report. The information from B.B.'s cellphone records demonstrated that B.B. did receive several calls from a number starting 614–44, specifically 614–441–2949 ("target number"), just as she had told detectives. Detective Howe's Cellular Report stated that during the date and time of the incident the target phone accessed AT & T towers which were in the vicinity of the crime scene and there were five contacts between the target phone and B.B.'s phone between 1:38 a.m. and 2:22 a.m. on January 11, 2013.

{¶ 12} The state readily admitted throughout the trial, starting with opening statements, that the AT & T records did not connect appellant to this phone, i.e., nothing in the AT & T records named appellant as a liable party or user of the phone. Detective Howe testified that the AT & T records showed the liable party as AT & T with a Georgia address and the user as AT & T with a Morse Road, Columbus, Ohio address. However, as stated above, B.B.'s testimony linked that phone number to appellant.

{¶ 13} Appellant agreed to the admission of the cell phone analysis without objection initially but later asked the court to clarify for the jury that the phone was never linked by the AT & T records to appellant. The judge gave that following clarifying instruction to the jury:

Before we get to closing arguments there's just two sort of a limiting instruction that I just want to state to you as you are, again, considering closing arguments and ultimately evaluating the evidence.

You saw testimony regarding the cellular phone. In the evidence it is indicated suspect phone. Okay. Suspect phone refers to the phone number which was received by [B.B.].

You also saw testimony regarding suspect home. Suspect home refers to the home of the defendant and there's not that the suspect home and suspect phone are connected, okay? There's not testimony in the record in that regard.

(Tr. at 817–18.)

{¶ 14} Appellant testified and told a completely different story. He admitted to being a drug dealer. He testified that on January 10, 2013, at around 8:00 p.m., which is approximately six and one-half hours prior to the assault and robbery, he received a call from a customer, a prostitute named Alex, who wanted to buy drugs. Alex asked him to meet her at the Red Roof Inn on Brice Road in room 231. When he arrived and entered the room, in addition to his customer Alex, there was B.B. and a man, neither of whom appellant knew or had previously seen. Appellant stated that he was in the room for ten minutes and smoked a cigarette that he extinguished in a soda cap, thereby explaining how his DNA was on a cigarette in B.B.'s room. He claims that he sold Alex two Percocet, crack, and then departed the room and did not return. Appellant testified that the 614–441–2949 was not his phone and that he made no calls to B.B. He denied hitting, beating, or robbing her.

{¶ 15} Appellant was found guilty of aggravated robbery with a firearm specification (Count 1), robbery with a firearm...