[Cite as State v. Brinkley , 2017-Ohio-1269.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. JURMAINE K. BRINKLEY Appellant C.A. No. 28238

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 15 12 3742

DECISION AND JOURNAL ENTRY Dated: April 5, 2017

TEODOSIO, Judge. {¶1} Appellant, Jurmaine K. Brinkley, appeal s his conviction and sentence from the Summit County Court of Common Pleas, finding h im guilty of aggravated robbery with a firearm specification, and sentencing him to a tota l of thirteen years. This Court affirms.

I. {¶2} Mr. Brinkley was arrested and charged with aggravated robbery with a firearm specification stemming from the robbery of a convenience store on November 16, 2015. The case went to trial and the jury found Mr. Brinkley guilty. The trial court sentenced Mr. Brinkley to ten years for the offense of aggravated robbery and imposed a mandatory three-year sentence on the firearm specification to run consecutively as required by law. Mr. Brinkley now appeals, raising four assignments of e rror, which have been reordere d for the purpose of discussion.2

II.

ASSIGNMENT OF ERROR THREE

THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE FAILED TO ESTABLISH ON THE RECORD THAT THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.

ASSIGMENT OF ERROR ONE

APPELLANT’S CONVICTION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND THE JURY LOST ITS WAY WHEN IT FOUND THE APPELLANT GUILTY. {¶3} In his third assignment of error, Mr. Brinkley argues the trial court erred when it overruled his Crim.R. 29 motion for acquittal and submitted the case to the jury for deliberations. In his first assignment of error, Mr. Brinkley ar gues the manifest weight of the evidence does not support his conviction. We disagree with both argu ments. The Court notes that Mr. Brinkley does not challenge the fact that an aggravated robbery occurred, but rather disputes that he was

the offender. Factual Background {¶4} Shortly after midnight on November 16, 2015, Mr. Brinkley entered a convenience store, walked down an aisle, and le ft soon thereafter without purchasing anything. Mr. Brinkley lived with his siblings and their grandmother about a three-minute walk away from the store. Approximately twenty minutes later, a man dressed in black entered the store, pointed a gun at the cashier’s face, and demanded that she put the register money in a bag he was holding. The man was dressed in black, his face c overed by black fabric and his head covered by the hood of his sweatshirt. The cashier opened th e registers and put the money in the bag as instructed. After the gunman left, the police were called.3

{¶5} At trial, the cashier testified that she knew Mr. Brinkley by sight, though not by name, as he had come into the store a few times before. She denied ever having a conversation with Mr. Brinkley, or ever hearing his voice, bu t said that she had approximately four prior interactions with him. On the night of the r obbery, the cashier was working alone, and had asked one of the regular customers to stay with her while Mr. Brinkley was in the store because of feeling a “weird vibe.” {¶6} The cashier testified that the gunman was wearing fishnet-like hosiery over his head and a black hood with drawstrings. She sa id that his voice was not familiar to her. She stated that although she could not see his hair , she could still see his face through the hosiery, and recognized him as the regular customer who had been in the store earlier that night, who was later identified as Mr. Brinkley . Although she was looking down for much of her interaction with the gunman, she testified that she had no d oubt that it was Mr. Brinkley and that he was holding a gun. The cashier estimated the gunman’s height as between six feet to six feet and four inches. Mr. Brinkley testified that his act ual height was six feet and three inches. The cashier later identified Mr. Brinkley from a poli ce photograph array, and identified Mr. Brinkley

in the courtroom at trial. {¶7} Mr. Brinkley’s grandmother testified that she has had custody of her grandson since he was two or three years old and that he lives with her and his siblings within walking

distance of the convenience store. After she had learned of the robbery and that the police were looking for her grandson, she arranged to watch th e store surveillance video from that night. She gave a written statement to the police, produced as evidence by the prosecution, which provided: “I watched the video at the [convenience store] a nd that is my grandson, Jurmaine Brinkley. The video was the robbery of [the store].” She furthe r testified that Mr. Brinkley did not return home4

after the morning of November 16, and that sh e did not know his whereabouts for one or two days, until she was informed that he was in Mich igan. Upon being shown the video at trial, the grandmother testified that sh e was not sure if the gunman was her grandson. Upon crossexamination, she testified that she had been mista ken when she gave her statement to the police, and that it was not her grandson in the video. Sufficiency of the Evidence {¶8} Whether the evidence in a case is legally sufficient to sustain a conviction is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a test of adequacy.” Id . This Court reviews questions of law under a de novo standard. State v. Trifari, 9th Dist. Medina No. 08CA0043–M, 2009–Ohio–667, ¶ 12. {¶9} “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.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.” Id

. {¶10} Mr. Brinkley contends that no rational tr ier of fact could have found that he committed aggravated robbery beyond a reasonable doubt, and specifically, even viewing the evidence in a light most favorable to the pr osecution, the State failed to produce sufficient evidence that Mr. Brinkley robbed the convenience st ore with a firearm. He states that the only evidence provided was from one eyewitness, the cash ier at the convenience store, and claims her testimony differed substantially from her original statement. We note that the credibility of a5

witness is properly addr essed under a manifest we ight of the evidence analysis, and is done so

below. {¶11} The offense of aggravated robbery is committed when a defendant, in committing or attempting to commit a theft offense, or in fleeing immediately thereafter, had a firearm on or about his person or under his cont rol, and either displayed the weapon, brandished it, or indicated that he possessed it. R.C. 2911.01. As Mr. Brinkley notes under his first assignment of error, he “does not challenge the fact that an aggravated robbery occurred,” rather, “[t]he main issue in

this case lies with identification.” He makes no argument to di spute any other element of the crime of aggravated robbery. {¶12} Based upon the testimony as recounted ab ove, a rational trier of fact could reasonably have found, beyond a reasonable doubt , that Mr. Brinkley committed the offense. Viewing the evidence in a light most favorable to the State, there is sufficient evidence to support a finding that Mr. Brinkley committed the cr ime of aggravated robbery. Mr. Brinkley’s third assignment of error is overruled. Manifest Weight of the Evidence {¶13} “In determining whether a conviction is against the manifest weight of the evidence, an appellate 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 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. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evid ence concerns whether a greater amount of credible evidence supports one side of the issue than supports the other. State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). Further, when re versing a conviction on the basis that the6

conviction was against the manife st weight of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id ., quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). An appellate court should only exercise its power to reverse a judgment as ag ainst the manifest weight of the evidence in exceptional cases in which the evidence weighs heavily against the conviction. Otten at 340. {¶14} “A conviction is not against the manifest weight of the evidence merely because there is conflicting evidence before the trier of fact.” State v. Haydon , 9th Dist. Summit No. 19094, 1999 WL 1260298, *7 (Dec. 22, 1999). An appella te court will not ove rturn a judgment on this basis alone, and may not merely substitute its judgment for that of the factfinder. State v.

Serva , 9th Dist. Summit No. 23323, 2007–Ohio–3060, ¶ 8. {¶15} This Court recognizes that “the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson , 9th Dist. Summit No. 25161, 2010–Ohio–3296, ¶ 15. We will not ove rturn a conviction as being against the manifest weight of the evidence simply because the trier of fact chose to believe the State’s

version of events over another version. State v. Tabassum , 9th Dist. Summit No. 25568, 2011– Ohio–6790, ¶ 27. {¶16} Mr. Brinkley takes issue with several components of the cashier’s testimony identifying him as the gunman. At trial, the ca shier stated that she could see the gunman’s complexion, however when she gave her statement to the police on the night of the robbery, she told them she did not know the gunman’s comp lexion. She also acknowledged that she did not mention to the police that the gunman had a scar on his face. Mr. Brinkley has a prominent scar

that runs from his nose to the back of his cheek. With regard to the police photograph array, the cashier acknowledged that the other men pictur ed looked quite different from Mr. Brinkley.7

{¶17} On cross-examination, the cashier admitted that her feelings of uneasiness that night were due to the fact that she was alone for the first time, and that her awkward feeling with regard to Mr. Brinkley was based upon other times he had been in the store. She stated her unease was also partly due to her knowledge that Mr. Brinkley had said something of a sexual

nature to one of her co-workers. She further te stified that it was not uncommon for customers to leave without buying anything. {¶18} The cashier acknowledged that from the angl e of the store’s surveillance video it appeared that the gunman was wearing a solid bl ack mask, but maintained that, in person, it was actually see-through hosiery that covered his fa ce. She also acknowledged looking down for an extended period of time as she was putting money into the bag; however, she testified that she was able to look at the gunman’s face as she went to the register, but was trying to avoid eye contact: “[O]nce I looked at him I knew it was him a nd I [did not] want to keep just staring.” The cashier also stated that it was not possible that she was mistaken as to the gunman’s identity and that she was “positive” it was Mr. Brinkley. In his own defense, Mr. Brinkley testified that he did not commit the aggravated robbe ry and found the idea “stupid.” {¶19} There is conflicting testimony regarding whether the cashier had ever previously spoken with Mr. Brinkley. Mr. Brinkley testifie d that he had several pr evious encounters with the cashier who was working on the night of the robbery. He testified that on one occasion he gave her a note stating that he was shy, but thou ght she was beautiful, and asked her to call him. He noted he did not actually speak to her on that occasion. He testified that he did speak to her briefly when he ordered some pizza from her and told her he had to return home for money, as he only lived three minutes away. He also stated that he talked to her when he wrote a “little sexual8

suggestion,” which she rejected. He said that as a consequence, things were then awkward

between them. {¶20} Although an Akron police officer originally testified the cashier told him she had prior conversations with Mr. Brinkley, this statement was later clarified by the officer, who

stated that he had inferred that there had been a conversation, though the cashier had only told him she had seen Mr. Brinkley in the store on pr ior occasions, and not that she had spoken with

him. {¶21} There is also the issue of the grandmother’s testimony, which contradicts the statement she gave to the police. On cross-ex amination, the grandmother testified that she had been mistaken when she identified her grandson as the gunman. She testified that she did not recognize the clothes the gunman was wearing, and that he appeared to have a lighter complexion and thicker calf muscles than her gr andson. She also stated that she knew Mr. Brinkley had made plans to go to Michigan to see his grandfather, but did not know the exact date of the trip. Mr. Brinkley testified that he did not tell his grandmother he was leaving because he wanted it to be a surprise. {¶22} Mr. Brinkley also claims there are multiple problems with the police investigation that occurred during this case. He points to the fact that the police did not find the clothing worn by the gunman, did not find the weapon, and did no t obtain any search warrants. In addition, Mr. Brinkley points to the testimony of an Akron police detective who stated that he “didn’t do as good of a job as [he] could have” with regard to the case. These details support the argument

that there could have been more evidence esta blished in this case; they do not support the argument that there was not enough evidence to sustain a conviction. Finally, Mr. Brinkley’s assertion that he could not have had enough time to change clothes in the fifteen to twenty9

minutes separating his leaving the store from the gunman entering the store is not supported by his own testimony that he lived only three minutes away. {¶23} The Court notes that Mr. Brinkley also refers to being prejudiced by the police photograph array shown to the cashier because th e men in the photographs looked substantially different from him. Mr. Brinkley did not object to the array at trial and this issue was not raised as an assignment of error. Therefore this issue is not properly before this Court. {¶24} Having reviewed the record, we cannot say that the jury clearly lost its way or created a manifest miscarriage of justice in choosing the State’s version of the events. “[W]hen conflicting evidence is presented at trial, a convic tion is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.” State v. Gilliam , 9th Dist. Lorain No. 97CA006757, 1998 WL 487085, *2 (Aug. 12, 1998). Mr. Brinkley’s first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING APPELLANT’S OBJECTION TO THE STATE’S USE OF ITS [PEREMPTORY] CHALLENGE EXCLUDING AN AFRICAN AMERICAN AND NOT FOLLOWING THE PROCEDURE SET FORTH IN [BATSON] V. KENTUCKY IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE [UNITED] STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION. {¶25} In his second assignment of error, Mr. Bri nkley contends that the trial court erredin overruling his objection to the State’s use of a peremptory challenge to exclude an AfricanAmerican juror. He argues the reasons provided for dismissing Juror Number 1 were a pretext for eliminating one of two African-American jurors. We disagree. {¶26} The Equal Protection Clause of the United States Constitution prohibits deliberate discrimination based on race by a prosecutor in the exercise of peremptory challenges. Batson v.10

Kentucky , 476 U.S. 79, 89 (1986). “A court adjudicates a Batson claim in three steps.” State v. Murphy , 91 Ohio St.3d 516, 528 (2001). “First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must pr ovide a racially neutra l explanation for the challenge.” State v. Bryan , 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 106, citing Batson at 96-98. “Finally, the trial court must decide based on all the circum stances, whether the opponent has proved purposeful racial discrimination.” Id . “The judge must ‘assess the plausibility’ of the prosecutor’s reason for striking the juror ‘in lig ht of all evidence with a bearing on it.’” State v.

Pickens , 141 Ohio St.3d 462, 2014–Ohio–5445, ¶ 63, quoting Miller–El v. Dretke , 545 U.S. 231, 252 (2005). A trial court’s findings of no discrimin atory intent will not be reversed on appeal unless clearly erroneous. State v. Hernandez , 63 Ohio St.3d 577, 583 (1992), following Hernandez v. New York , 500 U.S. 352 (1991). {¶27} Here, the State exercised a peremptory challenge to excuse Juror No. 1, an African–American female, and one of two African-Americans seated among the first twelve jurors. The State indicated that it anticipated a Batson challenge from the defense, and it provided the following as racially -neutral reasons in support of its challenge: (1) Juror No. 1 had been sleeping through the majority of the Defe ndant’s voir dire, and (2) Juror No. 1 was on a criminal jury approximately two years ago and returned a “not guilty” verdict. Mr. Brinkley

raised a Batson challenge, arguing that the given reasons were a pretext. The trial court determined that the State’s given reasons for challenging the prospective juror were race-neutral. Mr. Brinkley disputes that the juror was sleeping, and further argues that several other jurors had previously been involved in a trial.11

{¶28} Although defense counsel did not observe the juror sleeping, and suggested that some people listen with their eyes closed, the tr ial court judge c onfirmed that she saw the juror sleeping, and that “it was pretty obvious that she was out like a light.” The judge also noted that

there were two other African-Americans in th e jury pool outside of the first twelve. {¶29} The United States Supreme Court has explained that the racially neutral explanation that the prosecution is required to provi de at the second step of the analysis “means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York , 500 U.S. 352, 360 (1991). A prosecutor’s explanation for using a peremptory challenge on a juror does not have “to rise to the level justifying exercise of a challenge for cause.” State v. Frazier , 115 Ohio St.3d 139, 2007–Ohio–5048, ¶ 97, quoting Batson v. Kentucky , 476 U.S. 79, 97 (1986). In fact, “a peremptory challenge may be exercised

for any racially-neutral reason.” State v. Moss , 9th Dist. Summit No. 24511, 2009–Ohio–3866, ¶

12. {¶30} There is no clear error in the trial cour t’s determination. The likelihood that the juror was asleep during voir dire, coupled with he r sitting on a criminal jury that returned a “not guilty” verdict only two years earlier, gave rise to more than one racially neutral reason why the State might want to exercise a peremptory challenge. There was no discriminatory intent inherent in the prosecutor’s explanations. We furt her note that there is no pattern of excusing African-American jurors from the venire apparent in the record, and the State did not express similar concerns about any nonminority jurors w ho were permitted to serve, so there is no indication of disparate treatment. Accordingly, we conclude that the State satisfied its obligation12

to provide a racially neutral explanation fo r the challenge under the second step of the Batson analysis. The trial court did not clearly err when it determined that the prosecution had credible racially neutral reasons for excluding the Afri can–American juror. Mr. Brinkley’s second assignment of error is overruled.

ASSIGNMENT OF ERROR FOUR

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IMPOSING APPELLANT’S SENTENCE. {¶31} In his fourth assignment of error, Mr. Brinkley contends that the trial court’s sentence was unreasonable, and thus, an abuse of discretion. We disagree. {¶32} In reviewing a felony sentence, “[t]he appe llate court’s standard for review is not whether the sentencing court abused its discre tion.” R.C. 2953.08(G)(2). “[A]n appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence” that: (1) “the record does not support th e trial court’s findings un der relevant statutes,” or (2) “the sentence is otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016– Ohio–1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts s ought to be established.” Cross v. Ledford , 161 Ohio St. 469 (1954), para graph three of the syllabus. {¶33} The Supreme Court of Ohio has held that “[t]rial courts have full discretion to impose a prison sentence within the statutory ra nge and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Foster , 109 Ohio St.3d 1, 2006–Ohio–856, paragr aph seven of the syllabus. Where the trial court does not put on the reco rd its consideration of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper consideration to those statutes. State v. Kalish , 120 Ohio St.3d 23, 2008–Ohio–4912, ¶ 18 fn. 4. “Unless th e record shows that the court failed to13

consider the factors, or that the sentence is ‘str ikingly inconsistent’ with the factors, the court is presumed to have considered the statutory factors if the sentence is within the statutory range.” State v. Fernandez , 9th Dist. Medina No. 13CA0054–M, 2014–Ohio–3651, ¶ 8, quoting State v. Boysel , 2d Dist. Clark No. 2013–CA–78, 2014–Ohio–1272, ¶ 13. {¶34} In support of his argument that the tr ial court’s sentence was unreasonable, Mr. Brinkley raises multiple issues. He states that there is no evidence that he committed the offense, that he has maintained his innocence throughout th e process, and that there is a low probability of recidivism because it is his first offense. Mr. Brinkley further contends that the trial court failed to adequately make the re quisite findings, but fails to indicate the potential findings to which he is referring. {¶35} At sentencing, the trial court noted that it was already Mr. Brinkley’s first offense at just turning eighteen years old. The court fu rther stated that Mr. Brinkley was dangerous to the community and had no consideration for the cons equences of his actions or for other people. The court considered the fact that Mr. Brinkley left the area for Michigan after the crime was committed, and found no evidence of remorse. The court also noted his behavior at the jail as indicative of his disregard for society, rules and regulations, and authority in general, and pointed to the video of the crime as showing a person with no consideration for human life. Mr. Brinkley was then given a sentence of ten years for the offe nse of aggravated robbery, a felony of the first degree, and a three-year mandatory sentence on the firearm specification, to run consecutively, by law, for a total sentence of thirteen years. {¶36} Mr. Brinkley does not dispute that his se ntence falls within the statutory range. The trial court’s j ournal entry of April 22, 2016, states that the court considered the principles and purposes of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under14

R.C. 2929.12. The record, therefore, does not s how that the court failed to consider those factors, including the potentially mitigating factors listed by Mr. Brinkley. Furthermore, the

record does not show that the sentence is strikingly inconsistent with the factors. {¶37} Finally, Mr. Brinkley contends that the trial court utilized inadmissible information while making its sentencing decision. Specifically, Mr. Brinkley refers to the trial court’s comments at sentencing: And while I very rarely consider, and I’ m not considering as outside information, his behavior while at the Summit County Jail, while I’m not taking individual incidents into account with regard[] to se ntencing, what his behavior does show me is he is unwilling to abide by the norms of society, rules and regulations, and anything that has to do with anybody showing any type of authority. {¶38} “It is well-settled that the court may, in the sentencing process, consider

information which would have b een inadmissible at trial.” State v. Cassidy , 21 Ohio App.3d 100, 101 (9th Dist.1984). “At sentencing the court is not concerned with the guilt or innocence of the defendant, but rather with imposing an a ppropriate sentence based upon the seriousness of

the crime committed and the character of the defendant.” Id . The trial court made clear that it

did not take individual incidents at the jail into account with regard to sentencing, but rather

considered the behavior as evidence of Mr. Brinkl ey’s character. Mr. Brinkley fails to show that any such factors that may be indicative of his character are inadmissible for purposes of sentencing and provides no case law in support of such a theory. {¶39} Accordingly, we conclude that the trial court did not err by imposing a thirteenyear sentence in this matter as such a se ntence is neither unwarranted nor clearly and convincingly contrary to law. Mr. Brinkley’s fourth assign ment of error is overruled.15

III. {¶40} Mr. Brinkley’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

CARR, P. J. CALLAHAN, J. CONCUR.16

APPEARANCES: JASON D. WALLACE, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.