[Cite as State v. Neil, 2016-Ohio-4762.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 14AP-981 

 (C.P.C. No. 12CR-5963) 

v. : and 

 No. 15AP-594 

Miguel E. Neil, : (C.P.C. No. 13CR-4174) 

 Defendant-Appellant. : (REGULAR CALENDAR) 

 

 

D E C I S I O N 

Rendered on June 30, 2016 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B. 

Swanson, for appellee. Argued: Valerie B. Swanson. 

On brief: Yeura R. Venters, Public Defender, and John W. 

Keeling, for appellant. Argued: John W. Keeling. 

On brief: Miguel E. Neil, pro se. 

 

APPEALS from the Franklin County Court of Common Pleas 

DORRIAN, P.J. 

{¶ 1} Defendant-appellant, Miguel E. Neil, appeals from judgments of conviction 

and sentence entered by the Franklin County Court of Common Pleas pursuant to jury 

verdicts finding appellant guilty of 30 counts of robbery and 6 counts of kidnapping. For 

the reasons that follow, we affirm. 

I. Facts and Procedural History 

{¶ 2} The charges against appellant arose from a series of robberies that occurred 

in 2011 and two robberies that occurred in 2012. On November 15, 2012, immediately 

following the final robbery, Columbus police arrested appellant. Appellant was indicted 

in common pleas court case No. 12CR-5963 on 4 counts of robbery and 6 counts of 
Nos. 14AP-981 and 15AP-594 2 

kidnapping arising from the 2012 robberies. He also was indicted in common pleas court 

case No. 13CR-4174 on 26 counts of robbery and 1 count of kidnapping arising from 13 

separate robberies committed in 2011. Pursuant to motion filed by plaintiff-appellee, 

State of Ohio, the trial court joined the indictments for a single trial. Appellant moved to 

sever the indictments but the trial court denied the motion. Appellant also moved to 

suppress certain evidence but the trial court denied that motion. The charges were tried 

to a jury during a six-day trial beginning September 24, 2014, and ending October 1, 2014. 

A. Robberies Committed in 2011 

{¶ 3} The state presented witness testimony, as well as video and photographic 

evidence, related to the 13 robberies the state alleged appellant committed in 2011. 

{¶ 4} On March 23, 2011, a Subway restaurant at 3626 Gender Road was robbed. 

An employee testified that at approximately 9:30 p.m., a man dressed in all black and 

brandishing a small handgun entered the restaurant demanding money. The robber wore 

a hood and a mask covering his face; the employee could only see from the bridge of the 

robber's nose up because the lower portion of the robber's face was covered by the mask. 

The robber ordered the employee to get on the floor and not to look at him. The robber 

then reached over the counter into the cash register, which the employee had opened. 

The robber did not jump over the counter or step into the area behind the counter. The 

employee testified that the robber was a dark-skinned African-American man with a 

normal build, approximately 5'10" to 6" tall, weighing 180 to 220 pounds. The state also 

introduced photos taken from the restaurant's security camera. In the photos, the robber, 

who is wearing dark clothing, including a hood and mask, dark shoes, and dark gloves 

with white markings or letters, can be seen pointing a handgun, which is held in his left 

hand. 

{¶ 5} On April 18, 2011, a Subway restaurant at 354 West Third Avenue was 

robbed. A customer who was present that evening testified that a man entered and 

announced that he was robbing the restaurant. The robber then ordered the customer 

and employees to get down on the floor. When the customer did not move, the robber 

pushed him down to the floor. The robber then took two Subway employees into the area 

behind the cash register. The customer testified that the robber was an African-American 

man with a medium-to-dark complexion and a deep voice. He stated that the robber wore 
Nos. 14AP-981 and 15AP-594 3 

dark gloves and a very dark blue hooded sweatshirt with the drawstring pulled so that 

only part of his face and mouth were visible. The customer testified that the robber was 

medium height and "had a potbelly or close to it." (Sept. 25, 2014 Tr. at 138.) One of the 

two employees who were present testified that the robber entered the store holding a 

small gun, pointed the gun at the back of the customer's head, and told the employee to go 

to the front of the store and get the money. She testified that the robber was wearing dark 

colors and she could only see his eyes. She stated that the robber made them all get down 

on the floor, then took the money from the register and left. A video of the robbery from 

the restaurant's surveillance system was played for the jury, with the employee narrating 

the events depicted. The employee pointed out that the robber held the gun in his left 

hand. The second employee who was present during the robbery also testified. She 

indicated that the robber was wearing gloves and carrying a handgun, and that he used his 

right hand to take money out of the cash register. She said that the robber was an 

African-American male with a deep voice and that she believed he was approximately 5'8" 

tall. 

{¶ 6} On May 8, 2011, a Tim Horton's restaurant at 6780 East Main Street was 

robbed. An employee of the restaurant testified that the robbery occurred near the end of 

his shift, around 9:10 p.m. He testified that the robber was an African-American male 

who wore a black ski mask, black hooded sweatshirt, black pants, and brown or black 

gloves, and carried a small handgun in his left hand. He testified that the robber entered 

the restaurant, took another employee at gunpoint, and went to the drive-through area 

where he was working. The robber then ordered him to open the register and get on the 

ground. After removing the money from the drive-through register, the robber took the 

other employee back to the front of the restaurant, ordered him to open the register, and 

then ordered him to get on the ground. A video from the restaurant's surveillance system 

was played for the jury. In the video, the robber could be seen wearing dark gloves with 

white markings or letters. The video also depicted the robber walking behind the counter 

and removing money from the cash register with his right hand while holding a handgun 

in his left hand. 

{¶ 7} On June 28, 2011, a Tim Horton's restaurant at the corner of Sawmill Road 

and Hard Road was robbed. An employee testified that just before the restaurant closed, 
Nos. 14AP-981 and 15AP-594 4 

at about 10:58 p.m., an African-American man entered the store and got past the counter. 

The robber had a gun in his left hand; he pointed it at the employee and ordered him to 

open the cash registers. The employee opened the cash registers and then got on the 

ground. The robber used his right hand to empty the cash registers. The robber wore 

dark clothing and black gloves with white markings or letters. The employee testified that 

he could only see from the top of the robber's nose to his eyebrows because the lower part 

of his face was covered. He stated that the robber was dark skinned, approximately 5'11" 

to 6'0" tall and "had a little bit of a build to him." (Sept. 25, 2014 Tr. at 194.) A second 

employee, who was also present during the robbery, testified that the robber walked in 

carrying a small handgun and demanded money. The robber ordered the two employees 

to get down on the floor and then made one of them open the cash registers. The second 

employee testified that he tried to press an alarm button, but the robber came over, 

pointed the gun at him and told him to stay down. A video from the restaurant's 

surveillance system was also played for the jury. 

{¶ 8} On August 10, 2011, a Subway restaurant at 7558 Worthington-Galena Road 

was robbed. An employee of the restaurant testified that around 9:30 p.m., as she was 

preparing to close the restaurant, a man entered and ordered her to give him all the 

money. The robber jumped over the counter and forced her to open the cash register; he 

then kneed her in the back and ordered her to get on the ground. The employee testified 

that the robber wore black clothing, including a black mask, hooded sweatshirt, pants, 

gloves, and shoes. A video from the restaurant's surveillance system was played for the 

jury. In the video, the robber can be seen wearing black gloves with white markings or 

letters and holding a gun in his left hand while reaching into the cash register with his 

right hand. The employee testified that the robber was an African-American male who 

was taller than she was and indicated that her height was 5'6". She further testified that 

she was scared during the incident and that shortly thereafter she quit her job because she 

could not handle working there any longer. 

{¶ 9} On the evening of September 11, 2011, a Tim Horton's restaurant at 8333 

North High Street was robbed. The employee who was present during the robbery was 

unavailable at trial due to military service, but the state called the owner/operator of the 

store as a witness. He testified that he watched the store's surveillance video after the 
Nos. 14AP-981 and 15AP-594 5 

robbery. The surveillance video was played for the jury. In the video, the robber can be 

seen entering the restaurant and jumping over the counter. The robber wore dark 

clothing and black gloves with white markings or letters. In the video, a restaurant 

employee can be seen getting on the floor. The video shows the robber holding a gun in 

his left hand and using his right hand to reach into the cash register. The state also 

presented part of the video from earlier that same evening, when an individual appeared 

to enter the restaurant, go to the restroom and then leave without purchasing anything. 

That individual appeared to be holding his hands up to shield his face as he walked 

through the restaurant. The store owner testified that approximately 15 minutes passed 

between that individual entering and leaving the restaurant and the robbery occurring. 

{¶ 10} On September 13, 2011, a BP gas station at 1263 East Dublin-Granville Road 

was robbed. An employee testified that sometime between 2:00 and 3:00 p.m., a man 

entered the store with a gun pointed at him and ordered him to open the cash register. 

The robber told another employee who was present to get on the ground. During the 

robbery, a customer entered the store and the robber also told him to get on the ground. 

He testified that the robber wore a mask, a black hooded jacket, and black gloves. He 

could only see around the robber's eyes, and testified that the robber was a male with light 

brown skin. The employee testified that the gun was small and the robber held it in his 

left hand. The store employee testified that following the robbery, the other employee 

who was present during the robbery quit her job. A video from the store's surveillance 

system was played for the jury, in which the robber could be seen walking behind the 

counter while holding a gun in his left hand. In the video, the robber could be seen 

wearing dark gloves with white markings or letters and using his right hand to reach into 

the cash register. 

{¶ 11} On the evening of September 17, 2011, a Subway restaurant at 1898 Brice 

Road was robbed. An employee who was present during the robbery testified at trial. She 

indicated that she was training a new employee on the night of the robbery. When the 

robber entered the store, the cash register was open because the employee had been 

counting out money to put in the safe. She heard the robber demand money and looked 

up to see a gun in her face. She stepped back, leaving the cash register open; the robber 

jumped over the counter and grabbed the money from inside the register. The robber 
Nos. 14AP-981 and 15AP-594 6 

then made her walk to another part of the restaurant to prove there was no cash register 

there. The robber told the other employee to lie down on the floor and not look at him. 

She testified that the robber was an African-American male with a deep voice, wearing a 

dark hooded sweatshirt and a bandanna over his mouth area. A video from the 

restaurant's surveillance system was played for the jury. In the video, the robber could be 

seen wearing dark clothes, including dark gloves with white markings or letters. The 

video depicted the robber jumping over the counter to reach the cash register, while 

holding a gun in his left hand, and showed him reaching into the cash register with his 

right hand to remove the money. 

{¶ 12} On October 10, 2011, a Marathon gas station at 7200 Sawmill Road was 

robbed. An employee testified that early in the morning a man entered the store with a 

gun and declared his intention to rob the store. He then jumped over the counter and 

ordered the employee to open the cash register. The robber wore black clothing including 

a hooded sweatshirt, a face mask or ski mask, and gloves. The employee testified he could 

only see the area around the robber's eyes, and that he was a male with dark skin. He 

testified that the robber grabbed his collar and punched him in the back when he pressed 

the panic alarm. The robber held the gun in his left hand and reached into the register 

with his right hand to remove the money. The employee testified that the robber ordered 

both employees to get on the ground and departed the store after taking the money. The 

other employee testified similarly that the robber was an African-American male, 

approximately 5'7" to 5'10" tall, and that he wore black clothing. She stated that the 

robber pushed her to the ground and ordered her to open the store's safe, but she 

indicated that she did not have the keys to the safe. A video from the store's surveillance 

system was played for the jury in which the robber could be seen wearing dark clothing, 

including dark gloves with white markings or letters, and holding a gun in his left hand. 

The video showed the robber jumping over the counter to reach the area where the cash 

registers were located. 

{¶ 13} On October 12, 2011, a Family Video store at 5540 North High Street was 

robbed. An employee testified that at approximately 11:30 p.m., shortly before the store 

closed, a man entered the store, walked behind the counter, and demanded money. The 

employee testified that the robber was an African-American male, dressed in all black, 
Nos. 14AP-981 and 15AP-594 7 

including black gloves. She testified that he told her to open the cash registers and then 

get on the floor. Before she got down, he wrapped his left arm around her; she felt 

something against her side that she believed was a gun. The robber used his right hand to 

remove the money from the cash register. She testified that the robber was approximately 

5'6" to 5'7" tall and weighed 150 to 160 pounds. Photographs taken from the store's 

surveillance system were presented to the jury. In the photographs, the robber could be 

seen wearing dark clothing and dark gloves with white markings or letters. The robber 

was depicted standing behind the counter, holding a gun in his left hand, and using his 

right hand to remove money from the cash register. 

{¶ 14} On October 17, 2011, a McDonald's restaurant at 1300 Morse Road was 

robbed. The shift manager working that evening testified that, at approximately 7:57 

p.m., a man entered the store demanding to speak to the manager. The man then ran 

behind the counter with a gun drawn and told her to open the cash register. After taking 

the money, the robber told the manager and the other employees to lie down on the floor. 

The manager testified that the robber wore black clothes, including a hat, hooded 

sweatshirt, gloves, and a mask covering the lower part of his face. The robber carried a 

small handgun in his left hand. The manager testified that the robber was an AfricanAmerican male, approximately 5'8" to 5'10" tall, weighing approximately 180 pounds. A 

video from the restaurant's surveillance system was played for the jury. In the video, the 

robber could be seen wearing dark clothing, including dark gloves with white markings or 

letters. The robber could also be seen holding a gun in his left hand and running behind 

the counter to reach the cash registers, where he removed the money with his right hand. 

{¶ 15} On November 1, 2011, a BP gas station at 7310 Sawmill Road was robbed. 

An employee who was present during the robbery testified that at approximately 11:00 

p.m., a man entered the store and demanded that his co-worker open the cash registers. 

The robber demanded that the employee get on the ground, then walked over and shoved 

him down. The employee testified that the robber wore all black clothing, including a 

hood and mask covering part of his face, black pants, and black gloves. He could only see 

part of the robber's face around his eyes, but testified that he was an African-American 

man with dark skin. He testified that the robber was approximately 5'7" to 5'8" tall and 

weighed approximately 180 pounds. A video from the store's surveillance system was 
Nos. 14AP-981 and 15AP-594 8 

played for the jury. In the video, the robber could be seen wearing dark clothing, 

including dark gloves with white markings or letters, and carrying a gun in his left hand. 

The robber could also be seen walking behind the counter and reaching into the cash 

registers with his right hand after ordering the employee to open them. 

{¶ 16} On November 10, 2011, a PNC bank location at 7644 Sawmill Road was 

robbed. An employee who was present during the robbery testified that at approximately 

9:30 a.m., a man entered the bank, jumped over the counter, and demanded cash from 

her and another teller. She indicated that after opening her cash drawer, the robber 

reached in to remove the money. She testified that the robber wore black clothing and had 

something over his mouth so that she could only see the area around his eyes. She 

testified that the robber was an African-American male with dark skin. The employee 

testified that the robber ordered everyone in the bank to get on the floor. She testified 

that the robber appeared to have "a little bit of a bulk to him." (Sept. 29, 2014 Tr. at 490.) 

Photographs taken from the bank's surveillance system were presented to the jury, in 

which the robber could be seen entering the bank dressed in all black, including a mask 

and hooded sweatshirt. In the photos, the robber can be seen jumping over the counter 

and he appears to be holding a small handgun in his left hand. The photos also show the 

robber wearing dark gloves with white markings or letters. 

B. Investigation of 2011 Robberies 

{¶ 17} Former Columbus Police Detective Gregory Franken testified that he was 

assigned to a joint investigative team with Special Agent Craig Brennaman of the United 

States Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). The purpose of the 

joint investigative team was to investigate armed serial robberies. Detective Franken was 

involved in the investigation of the series of robberies that occurred in 2011; investigators 

came to refer to the suspect in those crimes as the "counter jumper." (Sept. 30, 2014 Tr. 

at 828.) He testified he developed approximately one dozen potential suspects for the 

robberies. Detective Franken testified that he began to investigate appellant as a potential 

suspect in mid-to-late November 2011; part of that investigation involved using GPS 

tracking devices on appellant's vehicles. No crimes attributed to the "counter jumper" 

robber were committed during this initial period of GPS surveillance. Special Agent 

Brennaman testified similarly that he was involved with investigating the series of 
Nos. 14AP-981 and 15AP-594 9 

robberies committed in 2011. He testified that at some point in the investigation, cell 

phone records for appellant were obtained and examined to determine whether appellant 

was in the applicable areas at around the times of the 2011 robberies. The state also 

introduced evidence from appellant's driver's license indicating that he was 5'9" tall and 

weighed 222 pounds. 

C. November 8, 2012 Wendy's Robbery 

{¶ 18} On November 8, 2012, a Wendy's restaurant at 1500 Worthington Woods 

Boulevard was robbed. A manager who was present during the robbery testified that at 

approximately 9:00 p.m., a man entered the restaurant dressed in all black, including 

black gloves. He pointed a gun at her head and told the employees to get down on the 

floor. The robber went behind the counter and made the manager open the cash registers. 

The manager testified that after taking the money the robber left the restaurant; one of 

the employees ran after him, but the robber turned and pointed the gun at him and told 

him to stop running. The manager testified that the robber was approximately 5'7" and 

weighed about 200 pounds. A video from the restaurant's surveillance system was played 

for the jury. In the video, the robber could be seen wearing dark gloves with white 

markings or letters, and holding a gun in his left hand while using his right hand to reach 

into the cash register. 

{¶ 19} Appellant presented a witness to the November 8, 2012 Wendy's robbery 

who testified that he was parked outside the restaurant eating a sandwich on the evening 

of the robbery. He saw an individual dressed in dark clothing jog past his car toward a 

nearby muffler shop. He then heard screaming from Wendy's and watched the individual 

get into a burgundy late-1990s or early 2000 Astro van parked near the muffler shop. On 

cross-examination, this witness admitted that he gave a statement to the police indicating 

that the van was a "maroon, rusty green or dark colored Astro-like van." (Sept. 29, 2014 

Tr. at 547.) 

{¶ 20} The prosecution also presented testimony from Detective Chris Davis of the 

Westerville Police Department. Detective Davis testified that he was a patrol officer at the 

time of the November 8, 2012 Wendy's robbery. After hearing the robbery-in-progress 

call, he began to drive his patrol cruiser toward the area. His patrol cruiser was equipped 

with a license plate reader camera. Detective Davis testified that the license plate reader 
Nos. 14AP-981 and 15AP-594 10 

on his cruiser identified license plate number ERR6711 at 9:07 p.m. on South Cleveland 

Avenue in the area in front of St. Ann's Hospital. He testified that this location was 

approximately 2.7 miles from the Wendy's location that was robbed on November 8, 

2012. 

{¶ 21} Detective Franken testified that following the November 8, 2012 Wendy's 

robbery, members of the Columbus police contacted the Westerville Police Department 

and received the license plate reader information described by Detective Davis. As a 

result of that information, Detective Todd Cress of the Columbus Division of Police 

prepared an affidavit in support of a second GPS tracking warrant for appellant's vehicles, 

a black 2004 Dodge Stratus with the license plate number BIGNEIL, and a blue 1995 Ford 

Aerostar van with the license plate number ERR6711. The affidavit was presented to a 

judge of the Franklin County Municipal Court and the installation of GPS devices was 

authorized at 1:13 a.m. on November 9, 2012. 

D. November 15, 2012 Bureau of Motor Vehicles Office Robbery 

{¶ 22} On November 15, 2012, an Ohio Bureau of Motor Vehicles office ("BMV 

office") at 112 Dillmont Drive was robbed. The state presented testimony from two 

employees of the BMV office and a customer who were present at the time. One of the 

employees testified that the office closed at 6:30 p.m. Near closing time on November 15, 

2012, a man rushed through the door and demanded money. The robber wore a 

sweatshirt and track pants, a black mask, gloves, and dark shoes. The employee testified 

that he pointed a small gun at her as he demanded money. She testified that the robber 

walked behind the counter; she handed him money and then he also grabbed money from 

another employee. When the office manager emerged from the back room of the office, 

the robber pointed the gun at her and told her to sit down. The employee testified that the 

robber was an African-American man, and that he held the gun in his left hand. The other 

employee testified similarly that the robber ran into the office demanding money and 

telling the employees to keep their heads down. She testified that the robber was an 

African-American man, dressed in black clothing, including a hood, mask, and gloves. 

The customer who was present in the BMV office likewise testified that the robber wore a 

mask and gloves, and pointed a small handgun at the employees. The prosecution also 

presented a video of the robbery, taken from the BMV office's surveillance system. In the 
Nos. 14AP-981 and 15AP-594 11 

video, the robber could be seen dressed in dark clothing, wearing a mask and dark gloves 

with white markings or letters. The robber held a gun in his left hand and went behind 

the counter of the BMV office, but instead of reaching into cash registers, he took money 

directly from the employees who handed it to him. 

{¶ 23} Officer Howard Brenner, a member of the Columbus Division of Police 

SWAT team, testified that he was assigned to follow appellant on the evening of 

November 15, 2012. He ultimately located appellant's Dodge Stratus parked in a lot near 

the BMV office, but appellant was not in the vehicle. He then observed an individual 

matching appellant's description, wearing a dark cap, dark clothes, and shiny tennis shoes 

walking along Dillmont Road. Officer Brenner testified that he saw that same individual, 

later identified as appellant, run into the BMV office just as the "open sign" was turned 

off. (Sept. 29, 2014 Tr. at 642.) Officer Brenner watched as appellant entered the BMV 

office, moved past the counters, and committed the robbery. Officer Brenner testified 

that he saw appellant confront the clerks at the BMV office while holding a gun. Officer 

Brenner and other SWAT officers pursued appellant after he left the BMV office, 

ultimately arresting appellant after he attempted to flee. 

{¶ 24} Detective Franken interrogated appellant following his arrest, along with 

Columbus Police Detective Dana Farbacher. A videotape of the interrogation, with certain 

redactions as stipulated by the parties, was played for the jury. During the interrogation, 

appellant admitted he robbed the BMV office. Appellant stated that "I just figured if I 

could just get 1,400, I mean, I know how the old saying goes, you know, I'm going to quit, 

I'm going to quit, you know what I'm saying." (Sept. 30, 2014 Tr. at 719.) Appellant 

repeatedly denied committing any other robberies; however, he also stated that "I 

understand it becomes habitual, you know, especially if you get away." (Sept. 30, 2014 Tr. 

at 728.) During the interrogation, appellant was shown a photographic image taken from 

the surveillance video at the Tim Horton's that was robbed on September 11, 2011. 

However, the interrogating detectives did not tell appellant the source of the photograph. 

When asked what the photograph looked like, appellant responded "[t]hat's my van." 

(Sept. 30, 2014 Tr. at 734.) Appellant later reiterated, "I'm not going to sit here and tell 

you that that is not my van, you know, you showed me a picture of my car, you showed me 

a picture of my van. I'm going to know it." (Sept. 30, 2014 Tr. at 760.) 
Nos. 14AP-981 and 15AP-594 12 

{¶ 25} When asked about his whereabouts on November 8, 2012, appellant stated 

he was driving his van that evening and that, after working out at a fitness center in 

Worthington, he went to the home of one of his personal training clients located in 

Hilliard. Appellant was inconsistent in describing when he arrived at his client's home; at 

various times he referred to his arrival time as around 8:30 p.m. or as sometime after 

9:00 p.m. He stated that he remained at the client's home until around 10:00 or 10:30 

p.m. Appellant further stated that after leaving his client's home, he ran out of gas near 

Interstates 270 and 71 and his wife had to bring him a gas can so that he could refill the 

vehicle. When asked how his van's license plate could have been detected on a license 

plate reader from a Westerville police department cruiser on Cleveland Avenue, near the 

area of St. Ann's Hospital at 9:07 p.m., appellant reiterated that he traveled from 

Worthington to Hilliard and then returned home. 

E. Jury Verdicts and Sentencing 

{¶ 26} At the close of trial, appellant's counsel moved to dismiss all charges under 

Crim.R. 29. The trial court granted appellant's motion with respect to Count 6 in case No. 

12CR-5963, because the victim named in that kidnapping count was not specifically 

identified by the employee who testified about the November 8, 2012 Wendy's robbery. 

The jury found appellant guilty of all remaining charges: 4 counts of robbery and 5 counts 

of kidnapping in case No. 12CR-5963, and 26 counts of robbery and 1 count of kidnapping 

in case No. 13CR-4174. On October 29, 2014, the trial court conducted a sentencing 

hearing. On October 31, 2014, the trial court issued judgment entries in both cases, 

concluding that certain charges merged for purposes of sentencing and that certain 

portions of the sentence were to be served consecutively with each other, for a total 

sentence of 42 years imprisonment. 

II. ASSIGNMENTS OF ERROR 

{¶ 27} Appellant appeals from the trial court's judgments, assigning six errors for 

this court's review in a brief filed by counsel: 

[I.] THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO 

A FAIR TRIAL AND DUE PROCESS OF LAW WHEN 

POLICE OFFICERS WERE ALLOWED TO INDICATE 

THEIR BELIEFS THAT THE IMAGES OF THE SUSPECT OR 

SUSPECTS IN THE OTHER ROBBERIES WERE THAT OF 
Nos. 14AP-981 and 15AP-594 13 

THE DEFENDANT AND THAT THEY WERE CERTAIN 

THAT ALL THE OFFENSES WERE COMMITTED BY THE 

SAME DEFENDANT AND BY THE INTRODUCTION OF 

INADMISSIBLE COMMUNITY AND VICTIM IMPACT 

EVIDENCE. 

[II.] THE TRIAL COURT ERRED WHEN IT JOINED THE 

TWO INDICTMENTS FOR TRIAL WHEN THE JOINDER 

WAS EXTREMELY PREJUDICIAL TO THE DEFENDANT 

AND THE STATE WAS UNABLE TO ESTABLISH THAT THE 

EVIDENCE OF THE ONE OFFENSE WOULD HAVE BEEN 

ADMISSIBLE TO SHOW A MODUS OPERANDI 

INDICATIVE OF A BEHAVIORAL FINGERPRINT OR 

UNIQUE, SIGNATURE-LIKE MANNER OF COMMITTING 

THE OTHER OFFENSES. 

[III.] THE TRIAL COURT ERRED WHEN IT INSTRUCTED 

THE JURY, OVER THE DEFENDANT'S OBJECTION, THAT 

THEY COULD CONSIDER THE ACTS OF THE DEFENDANT 

IN ONE INSTANCE TO PROVE IDENTITY IN THE OTHER 

INCIDENTS. 

[IV.] THE DEFENDANT DID NOT RECEIVE EFFECTIVE 

ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH 

AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF 

THE OHIO CONSTITUTION WHEN COUNSEL FAILED TO 

OBJECT TO IMPROPER POLICE OFFICER OPINIONS OF 

THE DEFENDANT'S GUILT, PREJUDICIAL AND 

IRRELEVANT VICTIM IMPACT EVIDENCE, AND FAILED 

TO HAVE A RECORD MADE OF THE JOIN[D]ER 

HEARING. 

[V.] THE TRIAL COURT ERRED WHEN IT ENTERED 

JUDGMENT AGAINST THE DEFENDANT WHEN THE 

EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE 

CONVICTIONS. 

[VI.] THE TRIAL COURT ERRED WHEN IT ENTERED 

JUDGMENT AGAINST THE DEFENDANT AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶ 28} Appellant also submitted a pro se supplemental brief, assigning five 

additional errors for this court's review: 
Nos. 14AP-981 and 15AP-594 14 

[VII.] The Trial Court erred by not addressing the first search 

warrant and allowing testimony of information not within the 

four corners of the affidavit nor made part of the record 

during issuance to rehabilitate the lack of veracity and basis of 

knowledge upon which the affiant based his subjective beliefs, 

which do not support probable cause nor a good faith reliance. 

The Trial court abused its discretion giving weight to the 

extraneous testimony and counsel was ineffective under 

Strickland for not objecting to such testimony. 

[VIII.] The Trial Court erred by refusing to acknowledge and 

address that detective Todd Cress knowingly, and 

intentionally, with reckless disregard for the truth, did not

inform the second judge, nor referenced his intent to reuse 

and incorporate the uncorroborated information from the 

fruitless January affidavit with appropriate words of 

incorporation, at all. Knowing uncorroborated information 

does not support probable cause. Thus, it cannot legally be 

part of the November 9th, 2012 affidavit and must be excised. 

[IX.] The Trial Court erred by not finding that the misleading 

"new indicia" provided by witness Troy Huff was falsified by 

detective Todd Cress in bad faith having the signed hand 

written statements in possession. The trial court[']s 

application of the good faith exception under these 

circumstances, resulted as in 28 USCS § 2254, "a decision that 

was contrary to, or involved an unreasonable application of, 

clearly established law, as determined by the United States, 

and a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in 

the state court proceeding," permitting a false statement to 

justify it. 

[X.] The January affidavit, illegally incorporated under false 

pretenses, without informing the judge, and the misleading 

and falsified statement of Troy Huff, should then be excised or 

set aside. With the affidavit's material set to one side, the 

affidavit's remaining content is insufficient to establish 

probable cause for the warrant to issue, and the search 

warrant must be voided and the fruits of the search excluded 

to the same extent as if probable cause was lacking on the face 

of the affidavit. State v. Hunt, 22 Ohio App.3d 43, at 903, 

citing Franks v. Delaware. 

[XI.] Counsel was Ineffective Assistance in violation of the 

Sixth Amendment to the United States Constitution and 
Nos. 14AP-981 and 15AP-594 15 

Section 10, Article I of the Ohio Constitution for failing to 

raise the following Fourth Amendment violations. 

(Sic passim.) 

III. DISCUSSION 

A. Denial of Appellant's Motion to Suppress 

{¶ 29} We begin with appellant's five supplemental assignments of error set forth 

in his pro se supplemental brief, which we will refer to as the seventh through eleventh 

assignments of error. These alleged errors relate to the trial court's denial of appellant's 

motion to suppress evidence obtained pursuant to the November 2012 GPS tracking 

warrant and to allegations of ineffective assistance of counsel related to that warrant. 

{¶ 30} Prior to trial, appellant moved to suppress the evidence obtained pursuant 

to the November 2012 GPS tracking warrant, asserting that the affidavit submitted by 

Detective Cress in support of that warrant ("Cress affidavit") did not demonstrate 

probable cause. The state filed a memorandum in opposition to the motion to suppress, 

asserting that the information in the Cress affidavit established probable cause to support 

the warrant. In the alternative, the state asserted that even if the Cress affidavit was 

insufficient, the evidence obtained pursuant to the warrant would be admissible under the 

good-faith exception to the exclusionary rule. The trial court denied appellant's motion to 

suppress, concluding that the judge issuing the November 2012 GPS tracking warrant had 

a substantial basis for concluding that probable cause existed and that, in the alternative, 

the good-faith exception to the exclusionary rule would have applied. 

{¶ 31} "Appellate review of a motion to suppress presents a mixed question of law 

and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. See also State v. 

Belton, __ Ohio St.3d __, 2016-Ohio-1581, ¶ 100, citing Burnside. In evaluating the 

motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best 

position to resolve factual questions and evaluate the credibility of witnesses. Burnside at 

¶ 8. Therefore, we must accept the trial court's findings of fact if they are supported by 

competent, credible evidence. Id. "Accepting these facts as true, the appellate court must 

then independently determine, without deference to the conclusion of the trial court, 

whether the facts satisfy the applicable legal standard." Id. See also State v. Johnson, 
Nos. 14AP-981 and 15AP-594 16 

10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 6 ("We apply a de novo standard in 

determining whether the trial court properly denied appellant's motion to suppress."). 

{¶ 32} In his seventh assignment of error, appellant appears to assert the trial 

court erred by relying on testimony presented at the suppression hearing, which was 

beyond the face of the Cress affidavit, in determining that the judge issuing the warrant 

had a substantial basis for concluding that probable cause existed. Appellant argues that 

the Cress affidavit failed to demonstrate the veracity and basis of knowledge to support 

the assertions contained therein; he claims that the trial court improperly relied on 

extraneous testimony from the suppression hearing to rehabilitate the allegedly 

insufficient affidavit. 

{¶ 33} The Fourth Amendment to the United States Constitution, applied to the 

states through the Fourteenth Amendment, provides that "[t]he right of the people to be 

secure in their persons, houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no warrants shall issue, but upon probable cause, 

supported by oath or affirmation, and particularly describing the place to be searched, 

and the persons or other things to be seized." The Ohio Constitution contains a nearly 

identical provision. Ohio Constitution, Article I, Section 14. See also R.C. 2933.22(A); 

Crim.R. 41(C). 

{¶ 34} When determining whether a search warrant affidavit demonstrates 

probable cause, a magistrate must " 'make a practical, common-sense decision whether, 

given all the circumstances set forth in the affidavit before him, including the "veracity" 

and "basis of knowledge" of persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will be found in a particular place.' " 

State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus, quoting Illinois 

v. Gates, 462 U.S. 213, 238-39 (1983). An appellate court reviewing the sufficiency of 

probable cause contained in an affidavit must not substitute its judgment for that of the 

magistrate but, rather, ensure that the magistrate "had a substantial basis for concluding 

that probable cause existed." Id. at paragraph two of the syllabus. This analysis is 

undertaken with great deference to the magistrate's determination of probable cause, and 

marginal cases should be resolved in favor of upholding the warrant. Id. The Supreme 

Court of Ohio has held that "when no oral testimony is presented to the neutral and 
Nos. 14AP-981 and 15AP-594 17 

detached magistrate in conjunction with an affidavit for a search warrant, the probablecause determination is based on the four corners of the document." State v. Castagnola, 

145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 106. 

{¶ 35} The trial court denied appellant's motion to suppress because it concluded 

that, given the totality of the circumstances, the Cress affidavit contained information 

providing the issuing magistrate with a substantial basis for concluding that probable 

cause for the warrant existed. However, despite appellant's contention in the seventh 

assignment of error, the trial court does not appear to rely on testimony beyond the face 

of the Cress affidavit to reach this conclusion. Instead, the trial court expressly referred to 

the information contained in the Cress affidavit and concluded that this information 

provided a substantial basis for the issuing magistrate to find probable cause to support 

the warrant. The trial court did refer to testimony from the suppression hearing, but this 

reference was in the context of addressing appellant's claim that the Cress affidavit 

contained material misrepresentations of fact that were presented in bad faith or in 

reckless disregard for the truth. In the motion to suppress, appellant argued that 

Detective Cress misrepresented the witnesses' descriptions of the robbery suspect, citing 

aspects of various witness statements that were not set forth in the affidavit. The trial 

court concluded that, based on the suppression hearing testimony, Detective Cress had a 

good-faith belief that he was presenting the facts in an accurate manner to the issuing 

magistrate. The court noted that, despite some variance in the witnesses' descriptions of 

the robbery suspect and the vehicle used in the robberies, there was a general theme to 

the descriptions and concluded that the Cress affidavit accurately set forth this 

information. Under these circumstances, we cannot conclude that the trial court 

improperly relied on testimony outside the four corners of the affidavit in determining 

that the magistrate had a substantial basis for finding probable cause. 

{¶ 36} Accordingly, we overrule appellant's seventh assignment of error. 

{¶ 37} Appellant's eighth assignment of error asserts the trial court erred by 

denying the motion to suppress because the affidavit in support of the November 2012 

GPS tracking warrant incorporated information from the affidavit presented in support of 

the January 2012 GPS tracking warrant without advising the magistrate that such 

material was being incorporated or that the January 2012 GPS tracking warrant had not 
Nos. 14AP-981 and 15AP-594 18 

resulted in evidence of criminal activity. This assignment of error appears to raise two 

arguments and we will address each in turn. 

{¶ 38} Appellant first argues that the Cress affidavit improperly incorporated the 

affidavit submitted by Detective Franken in support of the January 2012 GPS tracking 

warrant ("Franken affidavit") without advising the magistrate that the prior warrant was 

being incorporated. Appellant cites State v. Hardy, 2d Dist. No. 19029, 2002-Ohio-2371, 

as setting forth the standard for when a search warrant affidavit may incorporate a 

previous affidavit. In Hardy, a police detective obtained a search warrant by written 

affidavit for a particular address that he believed to be the defendant's residence. Id. at 

¶ 2. After attempting to execute the search warrant, the detective went to the defendant's 

workplace; she was not present, but her employer advised the detective that he had a 

different residential address for the defendant. The detective then created a oneparagraph addendum to the affidavit in support of the search warrant setting forth the 

new address. He presented it to the same judge who had executed the prior warrant, and 

the judge approved the addendum. Id. at ¶ 3. The detective located the defendant at the 

second address and presented her with the search warrant; she spoke with the detective 

and told him where the documents he sought were located, and accompanied him to the 

first address where a search revealed items obtained by fraudulently obtained credit. Id. 

The defendant subsequently filed a motion to suppress, which the trial court denied. Id. 

at ¶ 4. 

{¶ 39} The Second District Court of Appeals held that "[a]n addendum used when 

seeking a warrant may incorporate a previous affidavit, but it must do so by referencing 

the previous affidavit, being attached to the previous affidavit and swearing to the 

affidavit a second time before the same judge who issued the first warrant." Id. at ¶ 9, 

citing State v. Owens, 51 Ohio App.2d 132, 148 (9th Dist.1975). The court further held 

that "an addendum can be part of an affidavit for a search warrant if the two are presented 

contemporaneously to the issuing judge and the judge administers the oath with the 

understanding of the police officer and the judge that the oath applies to both the affidavit 

and the addendum." Id., citing State v. Thurman, 2d Dist. No. 12420 (July 2, 1991). The 

court found that it was unclear from the record whether the addendum was attached to 

the previous affidavit and search warrant when presented to the issuing judge and 
Nos. 14AP-981 and 15AP-594 19 

whether the detective took an oath as to the veracity of the addendum's statements; 

accordingly, the court of appeals remanded to the trial court for further proceedings. 

{¶ 40} Here, appellant argues that the Cress affidavit incorporated the Franken 

affidavit as an addendum without an oath that applied to both the affidavit and the 

addendum. However, after reviewing both affidavits and the transcript of the hearing on 

appellant's motion to suppress, we find this case to be distinguishable from Hardy. In 

this case, the Cress affidavit set forth the same information that had been contained in the 

Franken affidavit with respect to the series of robberies committed in 2011 and the results 

of the joint investigation into those robberies. However, Detective Cress did not 

incorporate this information through a reference to the Franken affidavit or attempt to 

use the Franken affidavit as an addendum to his own. Instead, Detective Cress set forth 

this information as part of his own affidavit, presenting the magistrate with information 

regarding the 2011 robberies and joint investigation, as well as additional information 

regarding the November 8, 2012 robbery and subsequent additional investigation. Thus, 

this is not a case involving an addendum incorporated by reference and a factual question 

as to whether the addendum was presented to the judge at the time the warrant was 

issued. 

{¶ 41} Appellant further appears to argue that the Cress affidavit was improper 

because it did not inform the magistrate about the January 2012 GPS tracking warrant 

and that no evidence of criminal activity was obtained as a result of that warrant. "To 

successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant 

must show by a preponderance of the evidence that the affiant made a false statement, 

either 'intentionally, or with reckless disregard for the truth.' " State v. Waddy, 63 Ohio 

St.3d 424, 441 (1992), quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978). 

"Omissions count as false statements if 'designed to mislead, or * * * made in reckless 

disregard of whether they would mislead, the magistrate.' " (Emphasis omitted.) Id., 

quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990). See also State v. 

Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, ¶ 18, citing Waddy. Thus, appellant must 

demonstrate that Detective Cress intended to mislead the magistrate by omitting the 

information about the January 2012 GPS tracking warrant or acted with reckless 

disregard as to whether omitting such information would mislead the magistrate. 
Nos. 14AP-981 and 15AP-594 20 

{¶ 42} The Second District Court of Appeals considered a similar argument in 

State v. Stropkaj, 2d Dist. No. 18712 (Nov. 16, 2001). In Stropkaj, the defendant, who 

operated an escort service, was charged with promoting prostitution. She filed a motion to 

suppress certain evidence obtained pursuant to three search warrants, arguing that there 

were material misleading omissions in the common affidavit in support of the search 

warrants. The trial court denied the defendant's motion to suppress and a subsequent 

motion to reconsider and for findings of fact and conclusions of law. The defendant 

subsequently pled no contest and appealed from her conviction and sentence. On appeal, 

the Second District ultimately reversed and remanded, finding that there were material 

omissions from the search warrant affidavits and that the trial court erred by failing to 

make a determination as to whether those omissions were made intentionally or with 

reckless disregard as to whether the omissions would tend to mislead a magistrate. 

However, the court concluded that certain alleged omissions, which are similar to the 

alleged omission in this case, were not misleading. Id.

{¶ 43} The defendant in Stropkaj asserted that the affidavit in support of the 

search warrants was misleading because it failed to inform the magistrate that (1) there 

were no criminal charges or arrests following a search of the escort service in 1993, 

(2) there were no complaints or investigations of the defendant between 1993 and 1998, 

and (3) two earlier search warrants (issued in 1993 and 1997) produced no evidence. The 

Second District found that the affiant's failure to aver the absence of additional 

incriminating facts was not misleading. The court concluded that in order for an omitted 

fact to be intentionally misleading or made with reckless disregard of its tendency to 

mislead the magistrate, the fact would necessarily have to be exculpatory information or 

information that impeaches a source of incriminating information. The court reasoned 

that a magistrate would naturally assume that any incriminating evidence would be set 

forth in the affidavit and there would be no useful purpose in requiring the affiant to 

include a paragraph asserting that he was not aware of any incriminating facts beyond 

those set forth in the affidavit. Thus, the court rejected the defendant's argument that the 

affidavit was misleading because it failed to inform the magistrate of the lack of certain 

incriminating evidence, including the fact that two prior search warrants produced no 

evidence. Id. 
Nos. 14AP-981 and 15AP-594 21 

{¶ 44} In this case, the Cress affidavit did not inform the magistrate that the 

January 2012 GPS tracking warrant had been issued and that GPS units were placed on 

appellant's vehicle between January 27 and April 25, 2012, and on appellant's wife's 

vehicle between January 27 and April 24, 2012 pursuant to that warrant. The Cress 

affidavit also did not state that no evidence was obtained pursuant to that warrant. 

However, the Cress affidavit stated that following the PNC Bank robbery on November 10, 

2011, the series of robberies stopped and no further evidence was obtained against 

appellant. Thus, although the Cress affidavit did not expressly notify the magistrate that a 

prior GPS tracking warrant had been issued, it did advise the magistrate that no 

additional evidence had been obtained against appellant during the nearly one-year 

period between the November 10, 2011 PNC Bank robbery and the November 8, 2012 

Wendy's robbery. Detective Franken testified at the suppression hearing that there were 

no robberies attributed to the "counter jumper" during the period when the GPS tracking 

devices were attached to appellant's vehicles pursuant to the January 2012 GPS tracking 

warrant. The lack of incriminating evidence from the January 2012 GPS tracking warrant 

during a period when there appeared to have been no activity by the "counter jumper" 

robber is not, in an of itself, exculpatory information. Under these circumstances, we find 

that Detective Cress's omission of the fact that the January 2012 GPS tracking warrant 

had been issued and that tracking had been completed without obtaining additional 

evidence was not designed to mislead or made in reckless disregard of whether it would 

mislead the magistrate. See Waddy at 441. 

{¶ 45} Accordingly, we overrule appellant's eighth assignment of error. 

{¶ 46} Appellant's ninth assignment of error asserts the trial court erred by not 

finding that the Cress affidavit contained an intentionally misleading false statement. As 

explained above, a defendant challenging a facially sufficient search warrant affidavit 

must demonstrate by a preponderance of the evidence that the affiant made a false 

statement intentionally or with reckless disregard for the truth. Id. Appellant argues that 

Detective Cress made a false statement with respect to a witness's statement following the 

November 8, 2012 Wendy's robbery. In his affidavit, Detective Cress stated that a witness 

observed the robbery suspect fleeing in a "dark colored minivan." (Cress Aff. at 8.) 

However, the witness's handwritten statement, which was introduced into evidence at the 
Nos. 14AP-981 and 15AP-594 22 

suppression hearing indicated that the van was a mid-1990s Astro van and was a shade of 

red. Additionally, an informational summary completed by another detective who 

interviewed the witness stated that the witness described the van as a red or maroon midto-late 1990s Astro van. There was also a preliminary investigation report prepared by 

one of the first patrol officers to arrive at the robbery scene, which indicated that the 

witness described the van as a maroon, rusty green, or dark-colored "Astro-like" van. 

{¶ 47} Appellant asserts that Detective Cress intentionally omitted the witness's 

description of the van as red, maroon, or rusty green and as being similar to an Astro van 

so that the description of the van in the affidavit would be more consistent with 

appellant's vehicle, which was a blue Ford Aerostar minivan. Detective Cress testified at 

the suppression hearing with respect to the process of preparing his affidavit in support of 

the search warrant, which was obtained at 1:13 a.m. on November 9, 2012, approximately 

four hours after the November 8, 2012 Wendy's robbery. Detective Cress testified that 

after arriving at the scene of the robbery, he spoke with one of the patrol officers on the 

scene, who told him that the witness had given a statement regarding a dark-colored 

minivan. Detective Cress further testified that after obtaining the November 2012 GPS 

tracking warrant, he received the witness statement summaries from another detective 

and read the witness's handwritten statement describing the van as red. He indicated that 

he did not attempt to revise the affidavit after learning this information because he 

considered red to be a dark color, especially at night. 

{¶ 48} Appellant has not shown by a preponderance of the evidence that Detective 

Cress made an intentional false statement in his affidavit or made a statement with 

reckless disregard for the truth. The affidavit was prepared during a brief period 

following the November 8, 2012 Wendy's robbery. Detective Cress testified at the 

suppression hearing regarding the basis of his assertion that the vehicle in question was 

dark colored. His testimony that one of the patrol officers on the scene advised him that 

the witness indicated the vehicle was a dark color is supported by the preliminary 

investigation report, which indicated that the witness described the vehicle as maroon, 

rusty green, or dark colored. Under these circumstances, we conclude the trial court did 

not err by denying the motion to suppress based on appellant's claim of an intentional 

false statement. 
Nos. 14AP-981 and 15AP-594 23 

{¶ 49} Accordingly, we overrule appellant's ninth assignment of error. 

{¶ 50} In his tenth assignment of error, appellant asserts that, after setting aside 

the portions of the Cress affidavit that he alleges were improperly incorporated from the 

earlier Franken affidavit and characterizing the witness's statement regarding the van 

used by the individual fleeing the November 8, 2012 Wendy's robbery, the remainder of 

the affidavit was insufficient to establish probable cause to support the warrant. 

However, for the reasons explained above, we conclude that the portions of the Cress 

affidavit describing the robbery events that occurred in 2011 and the joint investigation of 

those events did not constitute improper incorporation of the Franken affidavit. Likewise, 

we conclude that appellant failed to establish that the portion of the Cress affidavit 

characterizing the witness's statement was an intentional false statement or made with 

reckless disregard as to the truth. Therefore, we reject the basis for the tenth assignment 

of error and need not determine whether the remaining portions of the Cress affidavit 

would have been sufficient to establish probable cause. 

{¶ 51} Accordingly, we overrule appellant's tenth assignment of error. 

{¶ 52} Appellant's eleventh assignment of error asserts that his counsel provided 

ineffective assistance in various respects with regard to the November 2012 GPS tracking 

warrant. Appellant claims that his counsel was ineffective by failing to raise various 

alleged Fourth Amendment violations in support of the motion to suppress; we will 

consider each claim separately. 

{¶ 53} Courts apply a two-part test to evaluate claims of ineffective assistance of 

counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio 

St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was 

deficient." Strickland at 687. "Second, the defendant must show that the deficient 

performance prejudiced the defense." Id. This court has recognized that the failure to file 

a motion to suppress may constitute ineffective assistance of counsel when the record 

demonstrates that the motion would have been granted. State v. Hawkins, 10th Dist. No. 

15AP-35, 2016-Ohio-1404, ¶ 93. Based on this principle, the failure to raise a particular 

argument in support of a motion to suppress may constitute ineffective assistance when 

the record demonstrates that the motion would have been granted had that argument 
Nos. 14AP-981 and 15AP-594 24 

been asserted. "Counsel is not deficient for failing to raise a meritless issue." State v. 

Massey, 10th Dist. No. 12AP-649, 2013-Ohio-1521, ¶ 13. 

{¶ 54} Appellant first argues that his counsel was ineffective by failing to object to 

extraneous testimony and evidence beyond the four corners of the Cress affidavit, as 

described in the seventh assignment of error. However, as explained above, we conclude 

that the trial court did not rely on this testimony in concluding that the Cress affidavit 

established probable cause for the warrant. Therefore, even if appellant could establish 

that his counsel performed deficiently, he cannot establish that he was prejudiced by the 

failure to object by demonstrating that the trial court would have granted the motion to 

suppress had the testimony been excluded. 

{¶ 55} Appellant next argues that his counsel was ineffective by failing to argue 

that granting a GPS tracking warrant for 90 days constituted a fundamental violation of 

Crim.R. 41(C)(2) and required automatic suppression of the evidence obtained pursuant 

to the warrant. Appellant cites the provision of Crim.R. 41(C)(2) stating that the time an 

electronic tracking device may be used may not exceed 45 days. However, as the state 

notes, the portion of Crim.R. 41(C)(2) limiting the use of a tracking device to 45 days was 

enacted effective July 1, 2014, and, therefore, was not part of the rule at the time the 

November 2012 GPS tracking warrant was issued. Accordingly, granting a 90-day 

tracking warrant was not a per se constitutional violation. Appellant has failed to 

demonstrate that his counsel was deficient for failing to raise this issue or that the motion 

would have been granted had the issue been asserted in the motion to suppress. 

{¶ 56} Appellant further asserts that his counsel was ineffective by failing to argue 

that the information contained in the Cress affidavit was stale because it had been 

included in the prior Franken affidavit in support of the January 2012 GPS tracking 

warrant, and that warrant had not resulted in evidence of criminal activity by appellant. 

"An affidavit in support of a search warrant must present timely information and include 

facts so closely related to the time of issuing the warrant as to justify a finding of probable 

cause at that time." State v. Ingold, 10th Dist. No. 07AP-648, 2008-Ohio-2303, ¶ 22. 

However, "[t]here is no arbitrary time limit that dictates when information becomes 

stale." Id. Moreover, this court has recognized that " '[w]here recent information 

corroborates otherwise stale information, probable cause may be found.' " Id. at ¶ 35, 
Nos. 14AP-981 and 15AP-594 25 

quoting United States v. Spikes, 158 F.3d 913 (6th Cir.1998). In this case, the Cress 

affidavit provided additional information arising from the November 8, 2012 Wendy's 

robbery, indicating that the suspect in that incident wore similar attire and used similar 

methods to the suspect in the 2011 robberies. The Cress affidavit also indicated that, 

shortly after the robbery, appellant's minivan had registered on a license plate reader 

mounted to a police cruiser that was in the area near the robbery. Assuming, without 

deciding, that the information regarding the series of robberies in 2011 was stale, this 

additional information may have served to corroborate the information about the earlier 

robberies. Under these circumstances, we conclude that appellant has failed to 

demonstrate that his counsel was deficient for failing to raise this issue or that the motion 

would have been granted had the issue been asserted in the motion to suppress. 

{¶ 57} Finally, appellant argues that his counsel was ineffective for failing to argue 

that the warrant was unconstitutionally overbroad because it did not sufficiently describe 

the evidence to be obtained pursuant to the warrant. The November 2012 GPS tracking 

warrant provided that officers were authorized to install and use the tracking device to 

obtain evidence of the commission of the criminal offense of aggravated robbery. 

Appellant appears to argue that authorities may not use GPS tracking in an effort to catch 

a suspect in the act of committing a criminal offense, citing several cases including United 

States v. Katzin, E.D.Pa. No. 11-226 (May 9, 2012), State v. Sullivan, 10th Dist. No. 13AP173, 2014-Ohio-1443, State v. White, 5th Dist. No. 13-CA-11, 2013-Ohio-5221, United 

States v. Ford, E.D.Tenn. No. 1:11-cr-42 (Sept. 12, 2012), and United States v. Lee, 862 

F.Supp.2d 560 (E.D.Ky. 2012). However, each of those courts was addressing a scenario 

involving warrantless GPS tracking, not the question of whether a warrant sufficiently 

described the evidence to be obtained from the use of a GPS tracking device. Given the 

failure to clearly define or provide authority in support of this proposition, we cannot 

conclude that his counsel was ineffective for failing to raise it in support of the motion to 

suppress. 

{¶ 58} Accordingly, we overrule appellant's eleventh assignment of error. 

B. Joinder of Indictments 

{¶ 59} Having addressed the assignments of error related to the motion to 

suppress, we now turn to appellant's second assignment of error, in which he asserts that 
Nos. 14AP-981 and 15AP-594 26 

the trial court erred by joining the two indictments for trial. Appellant asserts that joinder 

of the indictments was prejudicial to appellant and that the state was unable to rebut the 

prejudice by showing that evidence of the offenses under one indictment would have been 

admissible at a separate trial on the other indictment.1 Although appellant was not 

present to object to joinder, he did file a motion to sever the indictments. 

{¶ 60} Pursuant to Crim.R. 13, a trial court may order two or more indictments to 

be tried together "if the offenses or the defendants could have been joined in a single 

indictment or information." Crim.R. 8(A) provides that two or more offenses may be 

charged in the same indictment if they "are of the same or similar character, or are based 

on the same act or transaction, or are based on two or more acts or transactions 

connected together or constituting parts of a common scheme or plan, or are part of a 

course of criminal conduct." "The law favors joining multiple offenses in a single trial 

under Crim.R. 8(A) if the offenses charged 'are of the same or similar character.' " State v. 

Lott, 51 Ohio St.3d 160, 163 (1990), quoting State v. Torres, 66 Ohio St.2d 340, 343 

(1981), fn. 2. 

{¶ 61} If similar offenses are properly joined, a defendant may move to sever the 

charges pursuant to Crim.R. 14(A): "If it appears that a defendant or the state is 

prejudiced by a joinder of offenses or of defendants in an indictment, information, or 

 

1 We note that the portion of appellant's brief addressing the second assignment of error asserts that the trial 

court committed certain procedural errors with respect to the motion for joinder. Specifically, appellant's 

brief asserts that the trial court conducted an off-the-record hearing on the motion for joinder and that 

appellant was not notified and not present for the hearing. Appellant argues that the failure to have the 

hearing on the record violated Crim.R. 22, and that the failure to have appellant present violated Crim.R. 43. 

As the state notes, however, appellant failed to expressly assign these arguments as errors for the court's 

review. Appellant's second assignment of error, as set forth above, asserts that the trial court erred by 

granting the motion for joinder because the joinder was prejudicial to appellant and the state was unable to 

establish that evidence of the offense where appellant was apprehended would have been admissible as 

other act evidence. 

We have previously held that pursuant to App.R. 12(A)(1)(b) " 'this court rules on assignments of error only, 

and will not address mere arguments.' " State v. McKinney, 10th Dist. No. 13AP-211, 2013-Ohio-5394, ¶ 11, 

quoting Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70. See also Bonn v. Bonn, 10th Dist. 

No. 12AP-1047, 2013-Ohio-2313, ¶ 9 ("[W]e will address each assignment of error as written and disregard 

any superfluous arguments not raised by the actual assignment of error under review."); In re Estate of 

Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5 ("Pursuant to App.R. 12(A)(1)(b), this court is 

required to determine the appeal based upon the assignments of error set forth in the briefs under App.R. 

16. This is procedurally necessary, as we are permitted to sustain or overrule only assignments of error and 

not mere arguments."). Accordingly, because appellant did not assign as error any alleged procedural 

deficiencies relating to the hearing on the motion for joinder, we will limit our review to his argument that 

the trial court committed substantive error by granting the motion for joinder. 
Nos. 14AP-981 and 15AP-594 27 

complaint, or by such joinder for trial together of indictments, informations or 

complaints, the court shall order an election or separate trial of counts, grant a severance 

of defendants, or provide such other relief as justice requires." To demonstrate that a trial 

court erred by denying a motion to sever, a defendant "must affirmatively demonstrate 

(1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided 

the trial court with sufficient information so that it could weigh the considerations 

favoring joinder against the defendant's right to a fair trial, and (3) that given the 

information provided to the court, it abused its discretion in refusing to separate the 

charges for trial." State v. Schaim, 65 Ohio St.3d 51, 59 (1992), citing Torres at syllabus. 

{¶ 62} We note that appellant's motion to sever provided, at best, minimal support 

for his claim of prejudice. The memorandum in support of that motion is scarcely more 

than one page long, and with respect to the issue of prejudice, simply asserts that 

appellant would be prejudiced by joining the 2011 offenses together with the November 

2012 offenses. This unsupported assertion may well fall short of establishing that his 

rights were prejudiced or providing the "trial court with sufficient information so that it 

could weigh the considerations favoring joinder against the defendant's right to fair trial." 

Schaim at 59. See also State v. Massey, 10th Dist. No. 99AP-1355 (Nov. 28, 2000) 

("Defendant has not pointed to any evidence of actual prejudice, and may not prevail by 

presuming prejudice based on the number of counts. Defendant has failed to suggest how 

he likely would have been acquitted on some counts had the four incidents been tried 

separately, and thus has not satisfied the first prong of Torres."). Appellant's counsel 

indicated to the trial court immediately before trial that the brief motion was effectively 

intended to preserve the issue for appellate review. Despite the minimal support 

contained in the motion to sever, however, we will consider the question of whether the 

state could rebut any showing of prejudice. 

{¶ 63} Even if a defendant establishes that the joinder was prejudicial, the state 

may rebut the showing of prejudice in two ways. State v. LaMar, 95 Ohio St.3d 181, 

2002-Ohio-2128, ¶ 50. First, the state may demonstrate that evidence of the joined 

offenses would be admissible as "other acts" evidence under Evid.R. 404(B) in separate 

trials. Id. Second, the state may demonstrate that evidence of the joined offenses is 

simple and direct. Id. These tests are disjunctive; satisfying one test negates a 
Nos. 14AP-981 and 15AP-594 28 

defendant's claim of prejudice without having to consider the other test. State v. Wilson, 

10th Dist. No. 10AP-251, 2011-Ohio-430, ¶ 15. 

{¶ 64} Evid.R. 404(B) provides, in relevant part, that evidence of other crimes or 

acts is not admissible to prove the character of a person in order to show action in 

conformity with such character. Such evidence may, however, be "admissible for other 

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident." Evid.R. 404(B). In this case, the state argues 

that the evidence related to the charges in each indictment would have been admissible at 

separate trials under Evid.R. 404(B) to prove identity by establishing a modus operandi. 

"To be admissible to prove identity through a certain modus operandi, other acts evidence 

must be related to and share common features with the crime in question." State v. Lowe, 

69 Ohio St.3d 527 (1994), paragraph one of the syllabus. 

{¶ 65} The Supreme Court of Ohio and this court have held that evidence of 

multiple robberies may be admissible as other acts evidence where there are sufficient 

common features to establish a modus operandi. In State v. Jamison, 49 Ohio St.3d 182 

(1990), the Supreme Court found that evidence of seven other robberies was admissible in 

a trial for aggravated murder and aggravated robbery to prove identity. The court 

concluded that the evidence regarding the seven other robberies established a pattern: 

each of the robberies occurred during a six-month period; each establishment robbed was 

located in the downtown area of Cincinnati; all but one of the robberies occurred on 

weekday afternoons; all of the establishments were first-floor, walk-in businesses; the 

defendant physically took or attempted to take money from the register except for the one 

business that had no register; and the defendant forced, threw, or knocked victims to the 

floor and consistently directed violence toward his victims' heads. Id. at 186. Because the 

characteristics of this pattern were consistent with the incident giving rise to the 

aggravated murder and aggravated robbery charges, evidence related to the other 

robberies was admissible to prove that the defendant committed the aggravated murder 

and aggravated robbery. Id. ("These other acts, i.e., robberies, do not simply prove 

appellant's character; more importantly, they are probative to ascertain appellant's 

identity as the Central Bar killer."). 
Nos. 14AP-981 and 15AP-594 29 

{¶ 66} This court has similarly ruled that joinder of multiple robbery charges is not 

improper where evidence of the robberies would be admissible in separate trials under 

Evid.R. 404(B). Wilson at ¶ 21; State v. Sealy, 10th Dist. No. 09AP-1128, 2010-Ohio6294, ¶ 19. In Wilson, the court described the similarity of the relevant crimes: 

The crimes here all occurred during business hours and all 

involved restaurants in the south-side area of Columbus so as 

to be geographically linked. All four robberies involved a black 

man with missing teeth that approached the register and 

demanded money from it. In three of the four robberies the 

evidence established the perpetrator placed a food order prior 

to demanding money, and in fact, the same item, i.e., pepper 

steak, was ordered in each of the robberies at Hunan King. 

Also, in three of the four robberies, the evidence established 

the perpetrator showed a gun while making his demands. 

Both the Pizza Hut and the KFC robberies involved the use of 

a note and the presence of a plastic bag, and both Hunan King 

robberies involved the person counting to ten while waiting 

for the money. Moreover, appellant was identified by 

witnesses from three of the four robberies. 

Id. at ¶ 20. The court noted that although the crimes differed from one another in some 

respects, "admissibility under Evid.R. 404(B) is not adversely affected simply because the 

other [crimes] differed in some details." (Internal citations omitted.) Id. at ¶ 21. 

Similarly, in Sealy, the court found that the state had rebutted the defendant's claims of 

prejudicial joinder: 

Here, the record contains evidence of five aggravated 

robberies and related offenses that occurred over a five-month 

period. The crimes are geographically linked as they all 

occurred within less than a two-mile radius of appellant's 

residence. In each crime, appellant was described as wearing 

dark clothing, entering a business brandishing a handgun, 

and demanding money from the cash register. In three of the 

robberies, appellant was described as firing the gun. 

Appellant's car was placed at three of the robberies, and he 

was positively identified by witnesses from four of the 

robberies. Clearly, the evidence here establishes the robberies 

followed a similar pattern and were geographically linked 

such that evidence of one could have been introduced by the 

state in a trial of each of the others under Evid.R. 404(B) to 

establish appellant's identity through his modus operandi. 
Nos. 14AP-981 and 15AP-594 30 

Thus, appellant was not prejudiced by the joinder of the 

offenses for trial. 

Sealy at ¶ 19. 

{¶ 67} In this case, the 2011 robberies shared many similar characteristics: the 

suspect was an African-American male, wearing dark clothing, including a mask, and dark 

gloves with white markings or letters on the gloves. The suspect brandished a small 

handgun, which he held in his left hand. The suspect had employees open cash registers 

and reached into the cash registers with his right hand to take the contents. In all but the 

first robbery, the suspect either jumped over or walked behind the counter, thereby 

entering an area where the public would not normally be present. In all but one of the 

robberies, the suspect ordered the employees to get on the ground. Ten of the 13 

robberies in 2011 occurred at night. Eight of the 13 robberies occurred at restaurants, 

mostly Subway or Tim Horton establishments, and another 3 robberies occurred at gas 

stations. Nine of the robberies occurred in the northern part of Franklin County. 

{¶ 68} Many of the distinguishing characteristics from the 2011 robberies were also 

present in the 2012 robberies that were charged in case No. 12CR-5963. In the 

November 8, 2012 Wendy's robbery, the suspect was an African-American male who wore 

dark clothing, including a mask, and dark gloves with white markings or letters. The 

robbery occurred at night, and the suspect, who held a small handgun in his left hand, 

went behind the counter and reached into the cash register after ordering the employees 

to open it. He also ordered the employees to get on the floor. The robbery occurred in the 

northern part of Franklin County. Similarly, in the November 15, 2012 BMV office 

robbery, appellant, an African-American male, wore dark clothing, including a mask, and 

dark gloves with white markings or letters. He brandished a small handgun in his left 

hand. The robbery occurred just after 6:30 p.m., as the BMV office was closing for the 

day. In committing the robbery, appellant went behind the counter into an area where 

the public would not normally be present. The BMV office was located in the northern 

part of Franklin County. Under these circumstances, we find that the 2012 robberies 

followed a similar pattern and shared numerous characteristics with the series of 

robberies committed in 2011. Therefore, the evidence of the 2011 robberies could have 
Nos. 14AP-981 and 15AP-594 31 

been introduced by the state in a trial of the 2012 robberies under Evid.R. 404(B), and 

vice versa. Appellant was not prejudiced by the joinder of these offenses for trial. 

{¶ 69} Accordingly, we overrule appellant's second assignment of error. 

C. Opinion and Victim Impact Testimony 

{¶ 70} Appellant argues in his first assignment of error that he was deprived of due 

process and his right to a fair trial when the trial court admitted opinion testimony from 

police officers and victim impact testimony. Appellant asserts that police officers were 

improperly allowed to testify at trial as to their opinions regarding appellant's guilt; he 

further asserts that portions of an interrogation video that was played for the jury 

contained improper opinion and hearsay statements from the interrogating police 

officers. Appellant also argues that the trial court erred by admitting victim impact 

testimony that was inflammatory and prejudicial. We will consider each of appellant's 

arguments in turn. 

{¶ 71} Generally, "the admission of evidence lies within the broad discretion of the 

trial court, and a reviewing court should not disturb evidentiary decisions in the absence 

of an abuse of discretion that has created material prejudice." State v. Conway, 109 Ohio 

St.3d 412, 2006-Ohio-2815, ¶ 62. Pursuant to Evid.R. 701, a witness who has not been 

qualified as an expert may testify as to opinions that are "(1) rationally based on the 

perception of the witness[,] and (2) helpful to a clear understanding of the witness' 

testimony or the determination of a fact in issue." A trial court has broad latitude in 

allowing or controlling lay witness opinion testimony. We will not overturn a trial court's 

decision concerning such testimony absent an abuse of discretion and a demonstration 

that the abuse of discretion materially prejudiced the objecting party. State v. Bond, 10th 

Dist. No. 11AP-403, 2011-Ohio-6828, ¶ 14. 

{¶ 72} Appellant specifically cites trial testimony from Detective Davis, Detective 

Franken, and Special Agent Brennaman regarding the joint investigation into the serial 

robberies. After explaining that he had shared information with representatives from the 

Columbus Division of Police, ATF, Reynoldsburg Police Department, and other agencies, 

Detective Davis was asked whether he reached any conclusions from his comparison of 

videos and surveillance photos from the various robberies. As the state notes, appellant's 

counsel objected to the question at trial, and the trial court sustained the objection. After 
Nos. 14AP-981 and 15AP-594 32 

additional description of the collective efforts of the law enforcement agencies, Detective 

Davis testified that he observed common characteristics across the robberies, including 

the suspect's clothing, physical characteristics, method of operation upon entering the 

premises, type of weapon used, and hand the weapon was carried in. Similarly, Detective 

Franken testified that he investigated the series of robberies, which he believed were 

linked, and developed approximately one dozen suspects. Detective Franken further 

testified that he believed that if he could link a suspect to one of the robberies, he would 

have identified the culprit in all of the crimes. Special Agent Brennaman testified that he 

worked with Detective Franken on multiple serial robbery cases, including the 

investigation of the 2011 robberies. 

{¶ 73} Notably, the trial testimony cited in appellant's brief did not involve the law 

enforcement officers offering opinions about appellant's guilt but, rather, about whether 

all of the robberies were committed by a single suspect. Additionally, we note that, other 

than the objection discussed above that was sustained by the trial court, appellant's 

counsel did not object to this testimony at trial. Because there was no objection, appellant 

waived all but plain error as to this testimony. State v. Noor, 10th Dist. No. 13AP-165, 

2014-Ohio-3397, ¶ 56 ("[T]he record reflects that no contemporaneous objection was 

made either to the prosecutor's questions or to the officers' answers. We must determine, 

therefore, whether it was plain error to allow this testimony."). Plain error involves an 

obvious error or defect in the proceedings that affects a substantial right; reversal is 

warranted only if the outcome of the trial clearly would have been different absent the 

error. Id.

{¶ 74} To the extent Detectives Davis and Franken, and Special Agent Brennaman 

offered opinion testimony, it was admissible lay opinion testimony under Evid.R. 701. 

The cited portion of Special Agent Brennaman's testimony does not appear to contain 

opinion testimony—he simply testified that he was involved in an investigation in which 

the Columbus police believed the robberies were linked. Detective Davis's testimony was 

clearly based on his own perceptions because he testified that he reached his conclusions 

based on his review of the video and photographic evidence. Likewise, Detective Franken 

testified that he reviewed the surveillance videos from the robbery incidents. Testimony 

from both Detectives Davis and Franken was helpful to the jury's understanding of each 
Nos. 14AP-981 and 15AP-594 33 

witness's testimony regarding the investigatory process. It also assisted the jury in 

determining a fact in issue, i.e., the identity of the suspect in the robberies. Therefore, 

admission of this testimony did not constitute plain error. 

{¶ 75} Appellant asserts that the most damaging evidence was introduced through 

the interrogation video that was played for the jury. Appellant cites to statements from 

Detectives Franken and Farbacher during the interrogation asserting that they believed 

appellant was involved in the 2011 robberies and that they had surveillance videos and cell 

phone records to prove that appellant committed those crimes. Appellant argues that 

these statements constituted hearsay and that they were improper opinion evidence 

because the detectives expressed their opinions that appellant was guilty of the robberies. 

Prior to introduction of the interrogation video at trial, appellant's attorney indicated 

there was a stipulation with respect to the video and that it had been edited and redacted 

to remove certain content. Thus, the state argues that because the parties agreed to redact 

certain portions of the video, any alleged error arising from admission of the remaining 

portions of the video could be considered invited error. "Under the 'invited error' 

doctrine, a party may not take advantage of an error which he invited or induced." State v. 

Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 16. "Pursuant to this doctrine, a 

party cannot claim that a trial court erred by accepting the party's own stipulation." State 

v. McClendon, 10th Dist. No. 11AP-354, 2011-Ohio-6235, ¶ 37. 

{¶ 76} Even if admission of the interrogation video does not constitute invited 

error, it would be subject to review under the plain error standard because appellant's 

counsel did not object to introduction of the non-redacted portions of the video. With 

respect to appellant's hearsay argument, we conclude that the detectives' statements in 

the interrogation video did not constitute hearsay. Hearsay is "a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted." Evid.R. 801(C). In the context of the trial 

proceedings, it appears that the purpose of including the detectives' statements in the 

portions of the interrogation video played for the jury was to provide context for 

appellant's statements and admissions during the interrogation. See, e.g., State v. Woods, 

10th Dist. No. 05AP-704 (Aug. 17, 2006) ("[T]he testimony of [Detective] Junk about 

Dickson's statement regarding appellant's location on the morning of the robbery and the 
Nos. 14AP-981 and 15AP-594 34 

videotape of Junk relaying Dickson's statement to appellant during the interview, were 

not hearsay as they were not offered for the truth of the matter asserted. Instead, they 

were offered to explain the context behind why appellant first claimed to Junk that he had 

an alibi, but later recanted his story and offered to 'let it all out,' and tell Junk that Koonts 

allegedly gave him money to purchase cocaine."); State v. Rice, 11th Dist. No. 2009-A0034, 2010-Ohio-1638, ¶ 23 ("The focus or purpose of playing the tape was to show Mr. 

Rice's voluntary confession. Thus, the statements made by the detectives were not 

intended to improperly interject medical 'expert testimony' as to the cause of death as Mr. 

Rice contends. Rather, the statements were an interrogation technique employed to elicit 

a response from Mr. Rice."). Moreover, assuming for purposes of analysis that the 

portions of the video in which the detectives expressed their opinion that appellant was 

involved in all the robberies would constitute impermissible opinion testimony, appellant 

has failed to demonstrate plain error by showing that the outcome of the trial clearly 

would have been different had those statements not been presented to the jury. Appellant 

asserts that it was the most damaging evidence against him, but there was a substantial 

volume of evidence presented against appellant, including his own admission to the BMV 

office robbery and his attempt to explain his whereabouts when the license plate reader 

identified his van near the location of the November 8, 2012 Wendy's robbery, as well as 

the testimony and evidence establishing the similarities between those robberies and the 

2011 robberies. 

{¶ 77} Appellant further argues that the trial court erred by admitting victim 

impact testimony during the guilt phase of the trial. Appellant claims that this evidence 

was not relevant to determining whether appellant committed the robberies and only 

served to invoke the jury's sympathy for the victims and make the jurors more likely to 

convict him. Appellant cites to several specific instances of alleged victim impact 

testimony. The witness regarding the August 10, 2011 Subway robbery testified that she 

had a two-year-old child at the time of the robbery and that, following the robbery, she 

stopped working for Subway because she was afraid to work alone. The witness regarding 

the September 13, 2011 BP robbery testified that his co-worker got down on the floor 

crying after the robbery and quit her job immediately after the robbery. The witness 

regarding the September 17, 2011 Subway robbery testified that her co-worker, who was a 
Nos. 14AP-981 and 15AP-594 35 

new employee, was laying on the floor crying after the robbery. She testified that they 

both decided that Subway was not a good place to work, and that the new employee quit 

after the robbery. She further stated that she did not know if her former co-worker would 

ever get a job again. The witness to the October 10, 2011 Marathon robbery testified that 

both he and his co-worker were very upset following the robbery. The employee who 

testified about the November 8, 2012 Wendy's robbery stated that she was so frightened 

during the robbery that she urinated on herself. She further testified that during the 

robbery she tried to stay calm so the robber would not hurt one of her co-workers, who 

was seven months pregnant at the time. One of the employees present during the 

November 15, 2012 BMV office robbery testified that she was concerned for her daughter, 

who was a co-worker and was present during the robbery, because she was five months 

pregnant at the time and had lost a child the prior year. She testified that her daughter 

was very upset and crying after the robbery and that she asked whether her daughter 

wanted an ambulance to be called. The daughter also testified, stating that her first 

instinct during the robbery was to get down on the floor to protect her unborn child. 

Appellant also cites to comments by Detective Franken regarding the impact on the 

victims that were included in the interrogation video presented to the jury. 

{¶ 78} This court has recognized that testimony as to the effect of a criminal act on 

the victim, the victim's family, or both, is usually not considered relevant evidence with 

regard to the guilt or innocence of the defendant. State v. F.R., 10th Dist. No. 14AP-440, 

2015-Ohio-1914, ¶ 45. Victim impact testimony creates a risk of inflaming the passions of 

the jury and resulting in a conviction on facts unrelated to the defendant's guilt or 

innocence. Id. However, "[e]vidence relating to the facts attendant to the offense is 

'clearly admissible' during the guilt phase, even though it might be characterized as 

victim-impact evidence." State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 98, 

citing State v. Fautenberry, 72 Ohio St.3d 435, 440 (1995). 

{¶ 79} The F.R. case involved a prosecution for gross sexual imposition against an 

11-year-old victim. F.R. at ¶ 2-3. On appeal, the defendant argued in part that the trial 

court erred by allowing the prosecution to elicit testimony about the psychological harm 

suffered by the victim and her family. Id. at ¶ 42. The prosecutor asked the victim's 

mother what impact the incident had on the family. Over objection by defense counsel, 
Nos. 14AP-981 and 15AP-594 36 

the trial court permitted the testimony to proceed and the witness testified that there had 

been a lot of tears and uneasiness in the neighborhood, along with having conversations 

with her son about why the family was careful. Id. at ¶ 43. This court found that the 

testimony was not relevant to the defendant's guilt or innocence and that the only 

apparent purpose for the question was to elicit sympathy from the jury. Accordingly, the 

court found that the trial court erred by admitting the testimony; however, the court 

further concluded that the error was harmless because there was no reasonable possibility 

it contributed to the conviction. Id. at ¶ 46. The court noted that the prosecutor did not 

dwell on the impact of the crimes during questioning or in closing argument. Id. at ¶ 47. 

The court contrasted the facts with those present in State v. Presley, 10th Dist. No. 02AP1354, 2003-Ohio-6069, where a rape victim testified that she suffered nightmares about 

the rape and both the victim and her mother testified that the victim attempted suicide as 

a result of the rape. F.R. at ¶ 48. The Presley court concluded that the trial court abused 

its discretion by admitting that testimony which prejudiced the defendant. Presley at 

¶ 86. Because the F.R. court found that there was "no reasonable possibility that the 

limited victim impact testimony contributed to [the defendant's] conviction," it overruled 

his challenge to the victim impact testimony. F.R. at ¶ 48. 

{¶ 80} In the present case, appellant concedes that his trial counsel did not object 

to the purported victim impact testimony. Therefore, we apply the plain error standard. 

With respect to the statements of Detective Franken contained in the interrogation video, 

we apply the same reasoning set forth above—i.e., the statements provided context for the 

interrogation and appellant's responses and they were not offered to prove the truth of the 

matter asserted. With respect to the trial testimony cited by appellant, it seems clear that 

the testimony from employees of the various businesses that were robbed was not directly 

relevant to appellant's guilt or innocence and there was some risk that this testimony 

would inflame the sympathies of the jury. The evidence appears to be more substantial 

than the testimony deemed to be harmless in F.R., but less detailed and emotional than 

the improper testimony in Presley. Moreover, in determining whether admission of this 

testimony constituted plain error, the entire context of the trial must be considered. The 

trial lasted six days and involved testimony from 30 witnesses relating to 15 separate 

robberies; the printed transcript of the trial spans 6 volumes and nearly 1200 pages of 
Nos. 14AP-981 and 15AP-594 37 

testimony and argument. Thus, while the various statements cited in appellant's brief 

may appear to create a notable risk of prejudice to appellant when compiled into a single 

paragraph, we must consider that the jury heard them as individual comments by certain 

witnesses throughout the course of a six-day trial. Absent the victim impact statement, 

the jurors would still have been provided with voluminous evidence including 

descriptions and video or photographic evidence related to each robbery, as well as 

appellant's statements during his interrogation. Under these circumstances, we conclude 

that appellant has failed to show that the outcome of his trial clearly would have been 

different had the victim impact testimony not been admitted; accordingly, admission of 

this testimony did not constitute plain error. 

{¶ 81} Finally, we note that appellant generally argues in support of his first 

assignment of error that the prosecution relied on the opinion testimony and victim 

impact testimony in its closing argument. Appellant claims that the jury must have 

necessarily relied on this testimony in convicting him because the jurors deliberated for 

less than one hour before reaching final verdicts on all charges. We conclude, however, 

the jury's relatively brief deliberation does not necessarily mean their verdicts were based 

on emotion. Although there was voluminous evidence and testimony presented in this 

case, as discussed more fully below in response to appellant's weight and sufficiency 

challenges, the evidence as to each robbery was largely straightforward and direct. The 

key issue for the jury was identity with respect to the 2011 robberies and the November 8, 

2012 Wendy's robbery, and whether the state had established sufficient similarities 

between those crimes and the November 15, 2012 BMV office robbery where appellant 

was arrested. It is conceivable that the jurors quickly reached a consensus on this issue by 

reviewing the evidence and testimony presented to them. 

{¶ 82} Accordingly, we overrule appellant's first assignment of error. 

D. Jury Instructions 

{¶ 83} In his third assignment of error, appellant asserts the trial court erred by 

instructing the jurors that they could consider other acts evidence on the issue of identity. 

Appellant argues that this instruction was not properly tailored to the facts of the case and 

allowed the jury to use evidence of the November 15, 2012 BMV office robbery, where 

appellant was apprehended, to prove that he committed all the other robberies. The state 
Nos. 14AP-981 and 15AP-594 38 

responds that the instruction at issue properly served to limit the jury's use of the other 

acts evidence and ensure that such evidence was not used as propensity evidence. 

{¶ 84} A trial court has broad discretion in instructing the jury. State v. Daniels, 

10th Dist. No. 13AP-969, 2014-Ohio-3697, ¶ 17. Accordingly, we review the trial court's 

instructions for abuse of discretion. An abuse of discretion implies that the court's 

attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983). 

{¶ 85} The Ohio Jury Instructions provides the following instruction related to 

other acts evidence: 

1. * * * Evidence was received about the commission of 

(crime[s]) (wrong[s]) (act[s]) other than the offense(s) with 

which the defendant is charged in this trial. That evidence 

was received only for a limited purpose. It was not received, 

and you may not consider it, to prove the character of the 

defendant in order to show that he acted in (conformity) 

(accordance) with that character. If you find that the 

evidence of other (crime[s]) (wrong[s]) (act[s]) is true and 

that the defendant committed (it) (them), you may consider 

that evidence only for the purpose of deciding whether it 

proves 

(Use appropriate alternative[s]) 

(a) the absence of (mistake) (accident), 

(or) 

(b) the defendant's (motive) (opportunity) (intent or 

purpose) (preparation) (plan) to commit the offense charged 

in this trial, 

(or) 

(c) knowledge of circumstances surrounding the offense 

charged in this trial, 

(or) 

(d) the identity of the person who committed the offense in 

this trial, 
Nos. 14AP-981 and 15AP-594 39 

(or) 

(e) (describe other purposes). 

That evidence cannot be considered for any other purpose. 

(Emphasis sic.) Ohio Jury Instructions, CR Section 401.25. 

{¶ 86} In this case, the trial court gave the jury the following instruction: 

Now, members of the jury, evidence was admitted of other 

acts which may have been committed by the defendant. You 

are to consider this evidence only on the issue of identity. If 

you believe that the defendant committed the other act, you 

may consider evidence of scheme, plan or system as you 

decide whether the acts alleged in the indictment, if 

committed, were committed by the defendant rather than 

some other person. 

Now, members of the jury, let me caution you that the 

evidence of the scheme, plan or system is only one of the 

things you are to consider in determining identity. The State 

of Ohio must prove identity beyond a reasonable doubt. If you 

find that the defendant committed the other act, you may not 

presume that he committed the acts charged. You may, 

however, consider the other act, along with all the other 

evidence, in deciding whether the State of Ohio has proved 

beyond a reasonable doubt that the defendant, rather than 

some other person, committed the offense charged. 

(Oct. 1, 2014 Tr. at 1091-92.) 

{¶ 87} As explained above, we conclude that, under the circumstances in this case, 

the other acts evidence presented in this case shared sufficient common characteristics to 

be admissible to prove identity through a particular modus operandi. See Lowe at 

paragraph one of the syllabus. The trial court's instruction in this case, which was 

consistent with the model instruction provided in the Ohio Jury Instructions, constituted 

a proper explanation of the permissible and impermissible uses of the other acts evidence. 

Therefore, we cannot conclude that the trial court abused its discretion by giving this 

instruction. See State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, ¶ 37. 

{¶ 88} Accordingly, we overrule appellant's third assignment of error. 
Nos. 14AP-981 and 15AP-594 40 

E. Ineffective Assistance of Counsel 

{¶ 89} In his fourth assignment of error, appellant argues that his trial counsel 

provided ineffective assistance by failing to have a record made of the joinder hearing and 

by failing to object to opinion testimony and victim impact testimony at trial. As 

explained above, we apply a two-part standard to claims of ineffective assistance, 

examining (1) whether counsel's performance was deficient, and (2) whether that 

deficient performance resulted in prejudice to the defendant. See Strickland at 687; 

Bradley at 141-42. A party seeking to show prejudice as a result of counsel's alleged 

deficient performance at trial must establish that there is a reasonable probability that, 

but for the unprofessional errors of counsel, the outcome of the trial would have been 

different. State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 81. "A reasonable 

probability is one sufficient to undermine confidence in the outcome." Id., citing 

Strickland at 694. 

{¶ 90} For the reasons set forth above, we have concluded that joinder of the 

indictments was proper in this case. Accordingly, even if appellant's counsel performed 

deficiently by failing to have a record made of the joinder hearing, appellant cannot 

demonstrate that he was prejudiced by such deficiency. 

{¶ 91} With respect to counsel's failure to object to opinion testimony and victim 

impact testimony, we note that decisions on trial strategy and tactics are generally granted 

a wide latitude of professional judgment and it is not our duty to analyze trial counsel's 

legal tactics and maneuvers. Id. at ¶ 86. However, assuming without deciding that 

appellant's counsel performed deficiently by failing to object to this testimony, we cannot 

conclude that there is a reasonable probability that the result of the trial would have been 

different. As discussed more fully below, there was a substantial amount of evidence 

presented with respect to each of the charges against appellant. Additionally, while the 

victim impact testimony created a risk of invoking the jurors' sympathies, the testimony 

constituted a small part of the overall presentation in support of the state's case and must 

be considered in that broader context. Appellant has failed to demonstrate a reasonable 

probability that the outcome of the trial would have been different absent the opinion 

testimony and victim impact testimony. 

{¶ 92} Accordingly, we overrule appellant's fourth assignment of error. 
Nos. 14AP-981 and 15AP-594 41 

F. Weight and Sufficiency of the Evidence 

{¶ 93} Finally, we turn to appellant's fifth and sixth assignments of error, in which 

he asserts the evidence was insufficient to sustain his convictions and that the judgment 

was against the manifest weight of the evidence. 

{¶ 94} "Sufficiency of the evidence is a legal standard that tests whether the 

evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th 

Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 

380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate 

court must determine "whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph 

two of the syllabus. Where the evidence, "if believed, would convince the average mind of 

the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction. 

Id. 

{¶ 95} Appellant was convicted of 2 counts of robbery with respect to each of the 15 

incidents described above. The indictments charged that in attempting or committing a 

theft offense or in fleeing immediately after the attempt or offense, appellant recklessly 

inflicted, attempted to inflict, or threatened to inflict physical harm on another, thereby 

violating R.C. 2911.02(A)(2). The indictments also charged that in attempting or 

committing a theft offense or in fleeing immediately after the attempt or offense, 

appellant recklessly used or threatened the immediate use of force against another, 

thereby violating R.C. 2911.02(A)(3). Appellant was also convicted on one count of 

kidnapping with respect to the October 10, 2011 Marathon robbery, four counts of 

kidnapping with respect to the November 8, 2012 Wendy's robbery, and one count of 

kidnapping with respect to the November 15, 2012 BMV office robbery. With regard to 

those charges, the indictments asserted that by force, threat, or deception, appellant 

restrained another of his or her liberty with the purpose to facilitate the commission of the 

robbery or flight thereafter, thereby violating R.C. 2905.01(A)(2). In the count arising 

from the October 10, 2011 Marathon robbery, appellant was charged with kidnapping one 

or both of the employees who were present during the robbery. For the November 8, 

2012 Wendy's robbery, appellant was charged with kidnapping four of the employees who 
Nos. 14AP-981 and 15AP-594 42 

were present during the robbery. Similarly, for the November 15, 2012 BMV office 

robbery, appellant was charged with kidnapping the office manager who was present 

during the robbery. 

1. Sufficiency of evidence related to the November 15, 2012 BMV 

office robbery

{¶ 96} Appellant does not appear to contest his convictions on the two robbery 

charges and one kidnapping charge arising from the November 15, 2012 robbery; his brief 

on appeal only refers to convictions based on the other 14 incidents. Nonetheless, we will 

briefly review the evidence supporting those convictions. Appellant admitted to 

committing the November 15, 2012 BMV office robbery in the interrogation video and his 

counsel acknowledged at trial that appellant committed that robbery. The state presented 

testimony and evidence demonstrating that appellant entered the BMV office carrying a 

handgun, pointed that handgun at one or more of the employees, demanded money, and 

took money from the employees. By taking the money, appellant committed a theft 

offense. See, e.g., State v. Green, 10th Dist. No. 03AP-813, 2004-Ohio-3697, ¶ 11 

(explaining that a "theft offense" includes knowingly obtaining or exerting control over 

property or services without consent of the owner, with purpose to deprive the owner of 

the property or services). 

{¶ 97} The Supreme Court of Ohio has held that "[o]ne cannot display, brandish, 

indicate possession of, or use a deadly weapon in the context of committing a theft offense 

without conveying an implied threat to inflict physical harm." State v. Evans, 122 Ohio 

St.3d 381, 2009-Ohio-2974, ¶ 23. "It is the very act of displaying, brandishing, indicating 

possession, or using the weapon that constitutes the threat to inflict harm because it 

intimidates the victim into complying with the command to relinquish property without 

consent." Id. Thus, there was sufficient evidence to establish that all of the elements of 

robbery, as defined under R.C. 2911.02(A)(2), were established. Similarly, we conclude 

that appellant's actions of pointing the gun at the BMV office employees constituted a 

threat of the immediate use of force against them in the commission of the theft offense, 

thereby establishing the elements of robbery as defined under R.C. 2911.02(A)(3). See, 

e.g., State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 17 (testimony that 

defendant pointed a gun at victims during robbery, made one victim lie on the ground at 
Nos. 14AP-981 and 15AP-594 43 

gunpoint, and threatened that accomplice would shoot victims if they got up off the 

ground was sufficient to support robbery conviction based on use or threat of immediate 

use of force). 

{¶ 98} With respect to the kidnapping charge arising from the November 15, 2012 

BMV office robbery, one of the employees present during the robbery testified that when 

the office manager started to come out of the back room and move toward the front area, 

appellant pointed his gun at the office manager and told her to go sit down. As the video 

of the robbery was played for the jury, the employee identified the office manager and 

demonstrated when appellant told her to go sit down. Thus, there was evidence that to 

facilitate the commission of the robbery, appellant restrained the liberty of the office 

manager by ordering her, at gunpoint, to sit down. See, e.g., State v. Jackson, 10th Dist. 

No. 14AP-748, 2015-Ohio-5114, ¶ 21 (holding that evidence was sufficient to support 

kidnapping conviction where appellant held victims at gunpoint and prevented them from 

leaving). Therefore, the evidence was sufficient to establish the elements of kidnapping, 

as defined under R.C. 2905.01(A)(2). 

2. Sufficiency of evidence related to November 8, 2012 Wendy's 

robbery 

{¶ 99} Appellant was convicted on two counts of robbery and four counts of 

kidnapping as a result of the November 8, 2012 Wendy's robbery. The state presented 

evidence and testimony establishing that a masked man entered the Wendy's restaurant, 

pointed a gun at the manager and instructed all the employees to get on the floor. The 

restaurant manager testified that the robber compelled her to open the cash registers. 

The robber took the money from the cash registers and fled the restaurant. The 

restaurant manager identified herself and the three other employees named in the 

kidnapping counts as being present during the robbery and testified that they were forced 

to get on the floor or otherwise prevented from moving about freely. Similar to the 

reasoning set forth above, we conclude that this evidence was sufficient to demonstrate 

that the individual depicted in the Wendy's surveillance video committed robbery and 

kidnapping. 

{¶ 100} Appellant, however, asserts that there was not sufficient evidence to 

establish that he was the individual who committed those crimes. As explained above, 
Nos. 14AP-981 and 15AP-594 44 

there were numerous similarities between appellant's actions in robbing the BMV office 

on November 15, 2012, and the conduct of the robber during the November 8, 2012 

Wendy's robbery. Both robberies occurred during the evening. Appellant and the 

Wendy's robber were African-American men who wore dark clothing and masks while 

committing the robberies. Appellant and the Wendy's robber both wore dark gloves with 

white markings or letters. Appellant and the Wendy's robber each held a small handgun 

in the left hand while committing the robberies and each went behind the counter into 

areas where the public would not normally be present. The restaurant manager testified 

that the robber was approximately 5'7" and weighed about 200 pounds; there was 

evidence introduced that appellant was 5'9" and weighed 222 pounds. Additionally, there 

was evidence from the police license plate reader that appellant's van was in the area near 

the robbery a few minutes after it occurred. This evidence, viewed in the light most 

favorable to the prosecution, would be sufficient to establish that appellant committed the 

robbery and kidnapping on November 8, 2012. 

3. Sufficiency of the evidence related to the 2011 robberies 

{¶ 101} Appellant similarly argues that the evidence was insufficient to establish 

that he committed the robberies giving rise to the 26 robbery counts and 1 kidnapping 

count contained in the indictment in case No. 13CR-4174. As set forth above, the state 

presented evidence and testimony with respect to each incident establishing that an 

African-American man entered each of the establishments, brandished or pointed a gun 

at the employees, and demanded money. The robber wore dark clothing and a mask 

obscuring most of his face. He wore dark gloves with white markings or lettering. He 

ordered the employees of the various establishments to get on the ground. He carried a 

gun in his left hand and used his right hand to reach into the cash registers to take money. 

Ten of the 13 robberies that occurred in 2011 were committed in the evening or at night. 

In all but the first of the 2011 robberies, the robber jumped over or went behind the 

counters into areas where the public would not normally be present. As with the 

November 8, 2012 Wendy's robbery, these characteristics of the individual who 

committed the 2011 robberies were similar to appellant's actions during the November 15, 

2012 BMV office robbery. Additionally, several of the witnesses' descriptions of the 

robber's height and weight were consistent with appellant's height and weight. With 
Nos. 14AP-981 and 15AP-594 45 

regard to the kidnapping charge arising from the October 10, 2011 Marathon robbery, one 

of the employees testified that the robber pushed his fellow employee to the ground, 

thereby restricting her movement. This act was also visible on the video that was played 

for the jury. Viewing all of this evidence in the light most favorable to the prosecution, it 

was sufficient to establish that appellant committed the crimes for which he was convicted 

in case No. 13CR-4174. 

4. Manifest weight of the evidence 

{¶ 102} "While sufficiency of the evidence is a test of adequacy regarding whether 

the evidence is legally sufficient to support the verdict as a matter of law, the criminal 

manifest weight of the evidence standard addresses the evidence's effect of inducing 

belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. 

"When presented with a challenge to the manifest weight of the evidence, an appellate 

court may not merely substitute its view for that of the trier of fact, but must review the 

entire record, weigh the evidence and all reasonable inferences, consider the credibility of 

witnesses and determine whether in resolving conflicts in the evidence, the trier of fact 

clearly lost its way and created such a manifest miscarriage of justice that the conviction 

must be reversed and a new trial ordered." State v. McCrary, 10th Dist. No. 10AP-881, 

2011-Ohio-3161, ¶ 12, citing Thompkins at 387. This authority " 'should be exercised only 

in the exceptional case in which the evidence weighs heavily against the conviction.' " 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In 

conducting our review of the evidence, "we are guided by the presumption that the jury, or 

the trial court in a bench trial, 'is best able to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in weighing the 

credibility of the proffered testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105, 

2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). 

{¶ 103} In this case, the state set forth extensive evidence and testimony related to 

each of the robbery incidents. In addition to testimony from at least one employee of each 

business that was robbed, the state offered into evidence video and or photographic 

evidence from each of the robberies. The state also presented the video of appellant's 

interrogation, in which he admitted to committing the November 15, 2012 BMV office 

robbery. Appellant's explanation of his whereabouts on the evening of November 8, 2012 
Nos. 14AP-981 and 15AP-594 46 

was inconsistent with the evidence showing that his van was near the area of the Wendy's 

robbery shortly after the robbery occurred. Appellant stated that he worked out at a 

fitness center in Worthington and then traveled to a private client's home, which would 

have required him to travel west, away from the location of the robbery. However, the 

location where the license plate reader detected his van was east of the fitness center 

where he claimed to have worked out. Appellant also made comments during his 

interrogation that could be construed to indicate that he had committed other robberies. 

As noted above, in several instances the witnesses' descriptions of the robber were 

consistent with appellant's height and weight. Based on the record before us, we cannot 

conclude that the jury clearly lost its way or that the evidence weighed heavily against 

appellant's convictions. 

{¶ 104} Accordingly, we overrule appellant's fifth and sixth assignments of error. 

IV. Conclusion 

{¶ 105} For the foregoing reasons, we overrule appellant's six assignments of error 

and five supplemental assignments of error and affirm the judgments of the Franklin 

County Court of Common Pleas. 

Judgments affirmed. 

BROWN and LUPER SCHUSTER, JJ., concur.