[Cite as State v. Hamilton, 2012-Ohio-1542.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97145

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

KEVIN N. HAMILTON

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-547368 

BEFORE: Sweeney, P.J., Jones, J., and Keough, J. 

RELEASED AND JOURNALIZED: April 5, 2012 
ATTORNEY FOR APPELLANT

Thomas A. Rein, Esq. 

Leader Building, Suite 940 

526 Superior Avenue 

Cleveland, Ohio 44114 

FOR APPELLANT 

Kevin Hamilton, Pro Se 

No. 603-602 

Lorain Correctional Institution 

2075 S. Avon-Belden Road 

Grafton, Ohio 44044 

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. 

Cuyahoga County Prosecutor 

By: Andrew J. Santoli, Esq. 

 Allison Foy, Esq. 

Assistant Prosecuting Attorneys 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
JAMES J. SWEENEY, P.J.: 

{¶1} Defendant-appellant Kevin Hamilton (“defendant”) appeals his aggravated 

robbery conviction. After reviewing the facts of the case and pertinent law, we affirm. 

{¶2} On February 15, 2011, Caudill Potter left his GED class in Lakewood at the 

same time as defendant who was also a student in the class. Potter heard the sound of a 

gun cocking as defendant pointed a 9mm firearm in Potter’s face and demanded 

“everything” from Potter’s pockets. Potter threw approximately $200 cash and a pack of 

cigarettes on the ground. Defendant told Potter to run, which Potter did. As he ran, 

Potter called the police from his cell phone. Potter identified defendant as the person 

who robbed him. Cash and cigarettes were returned to Potter from defendant’s 

possession. 

{¶3} On February 17, 2011, defendant was indicted for aggravated robbery in 

violation of R.C. 2911.01(A)(1) with firearm specifications. The case was tried to the 

court, and on June 16, 2011, defendant was found guilty as indicted. The court sentenced 

defendant to four years in prison for the robbery and three years for the gun specification 

to run consecutively for an aggregate prison term of seven years. 

{¶4} Defendant appeals and raises four assignments of error for our review. 

{¶5} I. “The state failed to present sufficient evidence to sustain a conviction 

against appellant.” 

{¶6} An appellate court’s function when reviewing the sufficiency of the evidence 

to support a criminal conviction is to examine the evidence admitted at trial to determine 
whether such evidence, if believed, would convince the average mind of the defendant’s 

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime proven beyond a reasonable doubt. State v. 

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 

{¶7} Defendant was convicted of aggravated robbery in violation of R.C. 

2911.01(A)(1), which reads in pertinent part that “[n]o person, in * * * committing a theft 

offense, * * * shall * * * [h]ave a deadly weapon * * * and either display the weapon [or] 

brandish it * * *.” 

{¶8} In the instant case, Potter’s testimony alone is sufficient to convict defendant 

of aggravated robbery with a firearm specification. Potter testified that he and defendant 

were classmates in a GED program in Lakewood. According to Potter, although he and 

defendant were in the same class, they were not necessarily friends. 

{¶9} Potter testified that on February 15, 2011, he walked out of school with 

defendant, because they were headed the same way and had been talking about electronics 

earlier that day. The two turned down a side street, Potter heard the sound of a gun cock, 

and saw defendant with “a nine millimeter, pointed directly at my face.” Defendant 

stated, “Give me everything.” Potter went into his pocket, and his cigarette pack and 

cash fell to the ground. Defendant told Potter to turn around and run. 

{¶10} Potter kept his cell phone, which was in his hoody pocket, and when he 

turned the corner, he called 911. Potter headed back to the school, and the police met 
him there. Potter described and identified defendant as the offender. The police 

apprehended defendant less than 20 minutes later, and returned Potter’s cash and cigarettes 

to him. According to Potter, he took the cash out of his pocket twice at school that day, 

while near the vending machine, although he was unsure whether defendant saw this. 

{¶11} In viewing this evidence in a light most favorable to the state, we find that 

a rational trier of fact could have found that defendant robbed Potter at gunpoint, thus 

meeting the elements of aggravated robbery. Accordingly, defendant’s first assignment 

of error is overruled. 

{¶12} In defendant’s second assignment of error, he argues as follows: 

{¶13} II. “Appellant’s conviction is against the manifest weight of the 

evidence.” 

{¶14} To warrant reversal of a verdict under a manifest weight of the evidence 

claim, this court must review the entire record, weigh the evidence and all reasonable 

inferences, consider the credibility of witnesses, and determine whether, in resolving 

conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage 

of justice that the judgment must be reversed and a new trial ordered. Thompkins, 78 

Ohio St.3d at 386. 

{¶15} Specifically, defendant argues that there was no physical evidence of a 

gun and that the victim’s testimomy was less credible than defendant’s testimony. 

{¶16} Potter testified that defendant had a gun. “Under Ohio law a defendant 

may be convicted solely on the basis of circumstantial evidence.” State v. McClutchen, 
8th Dist. No. 81821, 2003-Ohio-4802, ¶ 32. In McClutchen, the defendant’s convictions 

were upheld based on eyewitness testimony that he had a gun and aimed it in the direction 

of the victim. Id. at ¶ 34. 

{¶17} Defendant testified that, on February 15, 2011, he spoke with Potter at 

school and they left together so defendant could sell Potter marijuana. According to 

defendant, the sale price was $215, and the marijuana was in his pocket. Defendant 

testified that after the sale was complete Potter was unhappy and wanted his money back. 

The two exchanged words and eventually went their separate ways. Shortly after this, the 

police stopped defendant on the street and told him that he matched the description of a 

person who had allegedly just committed a robbery. 

{¶18} Carmen Rios testified that she was enrolled in GED classes with Potter and 

defendant. Rios stated that on February 15, 2011, she saw Potter and defendant leave 

school early. Potter came back after approximately 15 minutes, “all frantic and stuff * * 

* and said that he had just got robbed.” Samantha Mize, another student in the class, 

testified that she saw defendant and Potter leave school on February 15, 2011. Fifteen or 

20 minutes later, Potter came back and said that he had been robbed. 

{¶19} Lakewood Police Officer Anthony Ciresi testified that on February 15, 

2011, he responded to a call that a male was robbed at gunpoint. Officer Ciresi arrived at 

the school and spoke with the victim, Potter. Officer Ciresi testified as follows: 

I learned that the victim left the school with a male, and as they were 

walking out of the school, they were having a general conversation, * * * 

and when they rounded the corner to go westbound * * *, the male had 
pulled a gun out, and said, * * * I want everything, and * * * [Potter] threw 

the rest of his money out on the ground and some cigarettes. 

{¶20} Less than ten minutes later, a suspect had been apprehended. Officer 

Ciresi took Potter down the street where Potter identified defendant as the man who 

robbed him. 

{¶21} Upon review of the trial testimony, we cannot say that the court lost its way 

in convicting defendant of aggravated robbery, and his second assignment of error is 

overruled. 

{¶22} Defendant’s third assignment of error states the following: 

{¶23} III. “The trial court erred when it admitted other acts testimony in 

violation of R.C. 2945.59, Evid.R. 404(B) and Apellant’s rights under Article I, Section 10 

of the Ohio Constitution and the Fourteenth Amendment to the United States 

Constitution.” 

{¶24} Specifically, defendant argues that evidence that he may have had a gun on 

prior occasions was inadmissible at trial. The state, on the other hand, argues that this 

evidence “indicates [defendant’s] opportunity and intent to commit a robbery.” The state 

further argues that, in the alternative, if this evidence was impermissibly introduced at 

trial, any resulting error was harmless. 

{¶25} Generally, evidence of other crimes committed by a defendant is 

inadmissible to prove that the defendant committed the offense in question. R.C. 

2945.59 states that “[i]n any criminal case in which the defendant’s motive * * *, intent, * 

* * absence of mistake or accident * * *, scheme, plan, or system in doing an act is 
material,” other acts that tend to prove these things are admissible into evidence. Evid.R. 

404(B) states that 

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident. 

{¶26} We review the admission of evidence under an abuse of discretion 

standard. State v. Mauer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). “The term ‘abuse of 

discretion’ connotes more than an error of law or of judgment; it implies that the court’s 

attitude is unreasonable, arbitrary, or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 

157, 404 N.E.2d 144 (1980). Additionally, the Ohio Supreme Court has held that “R.C. 

2945.59 and Evid.R. 404(B) codify the common law with respect to evidence of other acts 

of wrongdoing, and are construed against admissibility.” State v. Lowe, 69 Ohio St.3d 527, 

530, 634 N.E.2d 616 (1994). 

{¶27} In the instant case, Rios testified that on February 7, 2011, she and two 

other students, Mize and James, gave defendant a ride home from school. Rios heard a 

clicking noise from the backseat of the car, which she thought sounded like a gun. She 

asked defendant if that was a gun, and he replied, “Yes, * * * I thought that you saw it on 

my hip in class.” 

{¶28} Mize testified that she was in the front passenger seat of the car Rios was 

driving on February 7, 2011, when they gave defendant and James a ride home. At one 
point, Rios asked defendant if he had a gun. Mize testified that “he said yes, and he 

thought we saw it in class.” 

{¶29} Michelle Morris, the operations manager for Next Step West Haven, the 

semi-independent apartment complex at which defendant was living, testified that she 

cleaned out defendant’s apartment when he left. Morris found a bullet under the mattress 

of defendant’s bed. Additionally, Lakewood Police Detective Scott Trommer testified 

that he investigated this robbery and was called about a bullet that was found in 

defendant’s room on February 22, 2011. 

{¶30} Upon review, we find this case analogous to State v. Crosby, 186 Ohio 

App.3d 453, 928 N.E.2d 795 (8th Dist.). In Crosby, this court analyzed whether the trial 

court “erred when it allowed testimony that defendant was known to carry a 9 mm 

handgun, which was the caliber weapon used to shoot the victim.” Id. at ¶ 8. Crosby 

cited State v. Watson, 28 Ohio St.2d 15, 275 N.E.2d 153 (1971), for the legal proposition 

that evidence that shows a connection between the murder weapon and the defendant is 

admissible at trial. Id. at ¶ 12. In the case at hand, however, the gun was never 

recovered and nothing in the record shows that the gun defendant allegedly had on 

February 7, 2011 was the same gun used to rob Potter. 

{¶31} Crosby next discusses that “this court has allowed into evidence testimony 

that the defendant was seen with a gun — not necessarily the gun involved in the offense 

— based on temporal and spacial proximity to the crime in question.” Id. at ¶ 13. See 

State v. Davis, 8th Dist. No. 35421, 1977 WL 201136 (Jan. 6, 1977) (allowing testimony 
that defendant was seen with a gun approximately 15 minutes after the offense was 

committed). 

{¶32} The Crosby court held that “the testimony about defendant’s being seen 

with a gun bears no such relationship to the offenses” of which he was convicted. Id. at ¶ 

14. The testimony in question in Crosby was rather generic statements that defendant 

was known to carry a gun, and “no mention was made of any time-frame or specific 

incidents when defendant was seen with a gun.” Id. at ¶15. 

{¶33} We find that the same principles apply to the instant case. Two 

witnesses testified that defendant had a gun eight days before the robbery, although neither 

witness saw a gun. There was also evidence that a bullet was found in defendant’s room 

seven days after the robbery. This evidence merely weighs toward defendant’s 

propensity to carry a gun and does not link defendant to the gun used in the robbery; 

therefore, it was improperly admitted. 

{¶34} Although it was error to allow the other acts testimony in the instant case, 

we nonetheless find that it was harmless under Crim.R. 52(A) because it did not affect 

defendant’s substantial rights. “The defendant has a constitutional guarantee to a trial free 

from prejudicial error, not necessarily one free of all error. Where there is no reasonable 

possibility that unlawful testimony contributed to a conviction, the error is harmless and 

therefore will not be grounds for reversal.” State v. Cooper, 8th Dist. No. 86437, 

2006-Ohio-817, at ¶19. 
{¶35} Because we found that the weight of the evidence supported defendant’s 

convictions, we cannot say that this improper testimony contributed to the jury’s finding 

him guilty. Accordingly, defendant’s third assignment of error is overruled. 

{¶36} In defendant’s fourth and final assignment of error, he argues that: 

{¶37} IV. “Appellant was denied a fair trial by the prosecutor’s closing 

argument.” 

{¶38} Specifically, defendant argues that the following statements by the 

prosecutor were improper: 

[Det. Trommer] spoke with the defendant, who denied even having 

conversations with the victim, denied really knowing who he was, and 

certainly, didn’t make any mention of selling marijuana to him as he has for 

the first time today in court. 

{¶39} This court has held that “the use for impeachment purposes of a 

petitioner’s silence, after arrest and after receiving Miranda warnings, violates his right to 

due process of law under the Fourteenth Amendment.” State v. Burford, 8th Dist. No. 

64432, 1993 WL 515605 (Dec. 9, 1993). In State v. Gillard, 40 Ohio St.3d 226, 533 

N.E.2d 272 (1988), the Ohio Supreme Court distinguished a defendant exercising his right 

to remain silent from a defendant voluntarily talking with the police and choosing to omit 

certain alleged facts. “[A] defendant who chooses to talk has not relied on that promise 

[that silence cannot be used against him] with respect to what he talks about. ‘If a 

defendant voluntarily offers information to police, his toying with the authorities by 

allegedly telling only part of his story is certainly not protected by Miranda * * *.’” 
Gillard, at 278 (quoting State v. Osborne, 50 Ohio St.2d 211, 216, 364 N.E.2d 216 

(1977)). 

{¶40} Our review of the record shows that defendant did not exercise his right to 

remain silent when questioned by police. Rather, defendant denied the accusations 

against him and denied speaking to or knowing Potter. Subsequently, defendant testified 

that he knew and spoke with Potter on the day in question and that this incident was the 

result of a drug deal gone bad. Therefore, impeachment regarding the inconsistencies 

between defendant’s statement to police and his trial testimony was proper. Accordingly, 

defendant’s fourth and final assignment of error is overruled. 

{¶41} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having been 

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for 

execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

JAMES J. SWEENEY, PRESIDING JUDGE 
LARRY A. JONES, SR., J., and 

KATHLEEN ANN KEOUGH, J., CONCUR