[Cite as State v. Stearns, 2024-Ohio-714.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsKYNAN STEARNS

Defendant-Appellant

JUDGES:

: Hon. Patricia A. Delaney, P.J.

: Hon. W. Scott Gwin J.

: Hon. John W. Wise J.

:

:

: Case No. 2023 CA 00083

:

:

: OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2023 CR 0067A

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 26,, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE STONE DONOVAN R. HILL

Stark County Prosecutor 122 Market Avenue North

BY VICKI L. DESANTIS Dewalt Building, Suite 101

Assistant Prosecutor Canton, OH 44702

110 Central Plaza South, Ste. 510

Canton, OH 44702
Stark County, Case No. 2023 CA 00083 2

Gwin, J.,

{¶1} Appellant Kynan M. Stearns appeals from the judgment entry of the Stark 

County Court of Common Pleas. Appellee is the State of Ohio. 

Facts & Procedural History

{¶2} On January 12, 2023, appellant was charged with one count of robbery, a 

felony of the second degree, in violation of R.C. 2911.02(A). The trial court held a jury 

trial beginning on July 5, 2023. 

{¶3} J.R. was an assistant manager at the Circle K store in Louisville, Ohio. She 

was working the midnight shift by herself on December 30, 2022. While she was working 

on the computer in the office, she heard the bell ring. She looked on the camera and saw 

someone walk in around 3:00 a.m. J.R. walked out of the office, and the customer’s back 

was towards her. When J.R. said “hello,” the customer turned around, looked at her, and 

said, “do not move, just sit on the floor.” The customer had what J.R. thought looked like 

a police baton in his hand. 

{¶4} J.R. was sitting on the floor when someone else came into the store. He 

told her to put her shirt up over her face, which she did. The two individuals that came 

into the store had masks on, but J.R. could tell they were both males. When appellant 

initially came into the store, the mask covered only part of his face. J.R. could see 

appellant’s eyes and forehead. J.R. could “kind of see” through her shirt, and saw the 

perpetrators behind the counter rummaging through items and opening up drawers. At 

some point, one of the individuals that J.R. identified as appellant went into the office, 

flung items everywhere, and threw a drawer on the sales floor. The individual that came 

into the store first left through the front door. The second individual was trying to wheel 
Stark County, Case No. 2023 CA 00083 3

the trash can to the door, but it flipped over and he was trying to get items back into it. 

He ran out the back door. On his way out, he slapped J.R. across the face. A police 

officer came into the store and took J.R. to his vehicle. J.R. was checked out by medics, 

but was not taken to the hospital. 

{¶5} There are surveillance cameras in the store that are always running. J.R. 

reviewed the videos several weeks prior to trial. On the video, J.R. saw one of the 

individuals pull down his mask. J.R. identified that individual as appellant. When asked 

on cross-examination how J.R. knew it was appellant, she stated, “because he looks like 

the picture from the front door when he didn’t have his mask on.” J.R. confirmed that the 

police did not do a photo line-up during their investigation. 

{¶6} K.A. was doing a ride-along with Deputy McMillen in Louisville on December 

30, 2022. They were sitting at the light at California Avenue and Main Street. K.A. and 

Deputy McMillen noticed someone at the doors of the Circle K waving them into the 

parking lot like they were in distress. As soon as the cruiser pulled into the parking lot, 

the person took off to the back of the store and ran out the back door. While the officer 

went into the store, K.A. remained in the cruiser. He saw the individual running across 

the parking lot to a light-colored Buick vehicle. K.A. did not have a clothing description 

for the individual, but he saw it was a black male. K.A. did not see enough of the individual 

to describe any other characteristics. 

{¶7} Deputy Jason McMillen (“McMillen”), of the Stark County Sheriff’s office was 

on duty on December 30, 2022. He took a civilian, K.A., for a ride-along that night. K.A. 

needed to use the restroom while they were on patrol. McMillen knew the Circle K was 

open all-night, so he was headed to the Circle K. When they were sitting at the traffic 
Stark County, Case No. 2023 CA 00083 4

light near the Circle K, McMillen saw a black male open the front door of the Circle K and 

wave towards McMillen like he needed help. McMillen pulled his car into the Circle K 

parking lot. As he was pulling into the parking lot, the black male at the door disappeared. 

McMillen got out of his patrol car and walked to the front door. He saw the clerk sitting 

on the floor. He entered the store and took the clerk to his cruiser. Then, he went back 

in and checked the store. McMillen identified multiple photographs of the crime scene. 

{¶8} Officer Zachary Clark (“Clark”) of the Louisville Police Department received 

a call about the robbery on December 30, 2022, when he was about a mile away from the 

scene. When he arrived at the scene, he spoke to the victim. She could not identify the 

suspect. Clark took photographs of the scene. He identified the photographs at trial. 

Clark bagged, tagged, and marked a black tennis shoe that was found at the scene and 

sent it to the Bureau of Criminal Investigation (“BCI”) for DNA processing. 

{¶9} Detective John Pilla (“Pilla”) of the Louisville Police Department was called 

to the scene. He arrived when the store had already been ransacked. Pilla observed a 

black shoe left at the back door. Pilla identified photographs he took of the scene. The 

victim told Pilla the perpetrators were two black males, one wearing a black hoodie and 

one wearing a gray hoodie. 

{¶10} Pilla obtained and viewed surveillance video from the store that night. Pilla 

also identified still photographs taken from various points during the surveillance video. 

Several of the still photographs showed the suspects. In one photograph, the mask of

one of the suspects was pulled down, so Pilla got a look at his face. Pilla also observed 

that he was wearing black shoes. Pilla identified the shoe the suspect was wearing as 

the black shoe that was left behind at the scene. Pilla testified the first suspect was 
Stark County, Case No. 2023 CA 00083 5

wearing an “Arby’s” jacket and the second suspect was wearing a “Gaming in Progress” 

hoodie. 

{¶11} Pilla described the physical evidence found at the scene, including a black 

shoe, gum stuck to a cigarette carton near the cash register, and a cigarette pack with 

saliva on it. Pilla’s investigation led him to a female named J.W., appellant’s ex-girlfriend, 

who said she had information about the robbery. J.W. gave Pilla the names of “Kynan 

Stearns” and “JMoney.” Upon further investigation, Pilla determined “JMoney’s” real 

name was Jason Mitchell (“Mitchell”). After obtaining a search warrant, Pilla searched 

Mitchell’s residence. Pilla found Circle K brand lighters, multiple cartons of cigarettes, 

and a box of beef jerky sticks. Pilla also found the “Gaming in Progress” hoodie. Pilla 

took the beef jerky sticks and carton of cigarettes to the Louisville Circle K store. The 

clerk at the store scanned them, and it popped up on their register confirming those items 

were specific to that store. 

{¶12} Pilla located appellant on January 6, 2023. BCI needed a “DNA standard” 

from the suspects to complete the DNA testing on the items found at the scene. Pilla 

obtained a search warrant to get DNA samples from appellant and Mitchell. Pilla 

confirmed there was a match from appellant’s DNA to the shoe found at the scene. 

{¶13} Pilla testified that appellant sent a letter to J.W. on May 23, 2023, stating 

that she “need[ed] to make sure Karon knows what to say. He is not to tell my lawyer 

that he is my brother. He is to say that he was at our house when JMoney and Dana 

came over with the tobacco. He is my witness that I was at home with him on the night 

of the robbery. This is important, J.W. This is priority.” Appellant wrote a letter to a friend 

on May 18, 2023 stating, “I really need you to talk to Karon so he knows what to say to 
Stark County, Case No. 2023 CA 00083 6

my lawyer for my trial, please. Karon is my alibi to where I was that night. He needs to 

say that me and him was at the house together when JMoney and someone else came 

over with tobacco products. I’m having my lawyer call him to trial for me.” 

{¶14} On cross-examination, Pilla testified he was not able to identify any 

suspects from the video surveillance footage. 

{¶15} Brittany Troyer (“Troyer”) from BCI testified about DNA testing procedures. 

Appellant was found to be a contributor to the DNA located on the black shoe located at 

the scene. Troyer estimated the proportion of the population that cannot be excluded as 

a possible major contributor is 1 in 10 million unrelated individuals. Neither the chewing 

gum or cigarettes had the DNA of appellant. 

{¶16} Appellant testified in his own defense. Appellant stated Mitchell came to his 

house sometime prior to December 30, 2022 with another male named “Dana” who had 

allegedly run away from foster care and needed help. Appellant testified he gave Dana 

shoes and clothing. However, because Dana did not wear appellant’s shoe size, 

appellant gave him J.W.’s black shoes. Appellant also gave Dana underwear, pants, 

hoodies, and shirts. 

{¶17} Appellant stated that one morning, Mitchell and Dana came over to 

appellant’s house to get high. Mitchell told appellant he “hit a lick” which appellant took 

to mean that Mitchell stole money or committed a robbery. Mitchell asked appellant to 

help him “sell some stuff,” so appellant posted the items on Facebook. Appellant testified 

he was not at the Louisville Circle K on December 30, 2022 and stated he did not rob the 

store. Appellant believes the black shoe was the shoe he gave to Dana. Appellant 

confirmed he was previously convicted of felony burglary in 2015. Appellant also 
Stark County, Case No. 2023 CA 00083 7

confirmed he wrote the letters to J.W. and his friend. He testified he wrote them because 

he was scared to go to trial. 

{¶18} On cross-examination, appellant stated he never told the police about 

“Dana.” Appellant also admitted that, in the letters, he was trying to fabricate an alibi with 

his brother Karon. Appellant does not know why J.W.’s DNA was not in the shoe because 

it was her shoe. 

{¶19} The jury found appellant guilty of robbery. The trial court memorialized the 

jury’s verdict in a July 11, 2023 judgment entry. The trial court sentenced appellant to an 

indefinite prison term of five to seven and one-half years in prison. The trial court issued 

a judgment entry of sentence on July 25, 2023. 

{¶20} Appellant appeals the July 25, 2023 judgment entry of the Stark County 

Court of Common Pleas and assigns the following as error:

{¶21} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE.” 

I.

{¶22} In appellant’s assignment of error, he argues the conviction for robbery is 

against the manifest weight of the evidence because the identification in the case was 

inherently unreliable. 

{¶23} In determining whether a conviction is against the manifest weight of the 

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the 

entire record, weighs the evidence and all reasonable inferences, considers the credibility 

of witnesses and determine whether in resolving conflicts in the evidence, the jury clearly 

lost its way and created such a manifest miscarriage of justice that the conviction must 
Stark County, Case No. 2023 CA 00083 8

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 678 

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the 

evidence and ordering a new trial should be reserved for only the “exceptional case in 

which the evidence weighs heavily against the conviction.” Id. 

{¶24} It is well-established, though, that the weight of the evidence and the 

credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95 

Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The jury is free to accept or reject any 

and all of the evidence offered by the parties and assess the witness’s credibility. Id. 

{¶25} Appellant was found guilty of one count of robbery pursuant to R.C. 

2911.02(A), which provides, in pertinent part:

(A) No person, in attempting or committing a theft offense or in fleeing 

immediately after the attempt or offense, shall do any of the following: 

(1) Have a deadly weapon on or about the offender’s person or under the 

offender’s control;

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

(3) Use or threaten the immediate use of force against another. 

{¶26} Appellant contends his conviction is against the manifest weight of the 

evidence because the evidence utilized to identify appellant as the person who committed 

the offense was not reliable.

{¶27} Every criminal prosecution requires proof that the person accused of the 

crime is the person who committed the crime. State v. Tate, 140 Ohio St.3d 442, 2014-

Ohio-3667, 19 N.E.3d 888. This truism is reflected in the state’s constitutional burden to 

prove the guilt of the “accused” beyond a reasonable doubt. In re Winship, 397 U.S. 358, 
Stark County, Case No. 2023 CA 00083 9

90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Like any fact, the state can prove the identity of 

the accused by circumstantial or direct evidence. State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991). A witness need not physically point out the defendant in the 

courtroom as long as there is sufficient direct or circumstantial evidence proving that the 

defendant was the perpetrator. Id. 

{¶28} If the State relies on circumstantial evidence to prove an essential element 

of an offense, it is not necessary for “such evidence to be irreconcilable with any 

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio 

St.3d 259, 574 N.E.2d 492 (1991). Furthermore, “since circumstantial evidence and 

direct evidence are indistinguishable so far as the jury’s fact-finding function is concerned, 

all that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial, 

against the standard of proof beyond a reasonable doubt.” Id. While inferences cannot 

be based on inferences, a number of conclusions can result from the same set of facts. 

State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990). Moreover, a series of facts and 

circumstances can be employed by a jury as the basis for its ultimate conclusions in a 

case. Id. 

{¶29} Appellant argues the totality of the circumstances demonstrates the risk of 

misidentification in this case is high because: the witness could not see appellant’s entire 

face at the time of the crime; J.R. did not have a heightened degree of attention because 

she had a shirt over her face; J.R. was unable to describe the perpetrators to police; and 

J.R. did not view the surveillance video until several weeks prior to trial. 

{¶30} In the instant case, there was no pretrial identification procedure. The same 

factors which are used in testing the reliability of a pretrial identification are used in 
Stark County, Case No. 2023 CA 00083 10

determining whether or not the in-court identification was of an independent origin. State 

v. Culbertson, 5th Dist. Stark No. 2018CA00183, 2020-Ohio-903. The factors affecting 

reliability include: the opportunity of the witness to view the criminal at the time of the 

crime, the witness’ degree of attention, the accuracy of the witness’ prior description of

the criminal, the level of certainty demonstrated by the witness at the confrontation, and 

the length of time between the crime and the confrontation. State v. Moody, 55 Ohio 

St.2d 64, 377 N.E.2d 1008 (1978). 

{¶31} The Ohio Supreme Court explained that in determining the admissibility of 

an in-court identification, trial courts should consider whether the in-court identification 

was a product of an improper pretrial identification procedure or whether the in-court 

identification “came from some independent recollection and observation of the accused 

by the witness.” State v. Jackson, 26 Ohio St.2d 74, 269 N.E.2d 118 (1971). 

{¶32} In this case, there was not a pretrial identification such as a photo array 

where the victim selected appellant as the perpetrator. Police retrieved all of the 

surveillance video from the Circle K’s cameras on December 30, 2022. There were also 

still pictures taken from the video, including one where appellant was standing in front of 

the store with his mask pulled down. The officers testified the videos and photographs of 

the scene were fair and accurate depictions of the surveillance footage from the Circle K. 

{¶33} J.R. was shown the surveillance tape and photographs, and she 

immediately identified appellant as one of the perpetrators. The record reflects that the 

victim’s in-court identification was based on her own observations and memory. Though 

the victim testified the suspect had a mask on, she stated the mask was not fully over his 

face. She also testified as to the location of each of the suspects during the robbery, and 
Stark County, Case No. 2023 CA 00083 11

confirmed on the surveillance video photographs that is where she saw each suspect on 

the night of the robbery. The victim’s in-court identification was made under oath and 

subject to cross-examination. Defense counsel challenged her recollection of the 

incident. 

{¶34} We find the victim had a reliable and independent basis for the identification 

based on her prior independent observations. We do not find that the victim’s in-court 

identification denied appellant his right to a fair trial or caused a manifest miscarriage of 

justice. See State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265, 2017-Ohio2671 (showing convenience store surveillance video to eyewitnesses was a valid and 

reliable investigative procedure as the video depicts actual events connected in time and 

space to the crime itself). 

{¶35} In State v. Johnson, the court noted several factors indicating the 

identification was not unreliable: there were no suggestive out-of-court procedures that 

could have invalidated the in-court identification; the witness made her identification in 

court and under oath and was subject to cross-examination; the witness testified she 

observed the suspect for over a minute; and the witness was confident in her 

identification. 163 Ohio App.3d 132, 2005-Ohio-4243, 836 N.E.2d (10th Dist. 2005). This 

Court found an in-court identification reliable in State v. Culbertson, 5th Dist. Stark No. 

2018CA00183, 2020-Ohio-903, in a factual scenario similar to this one. See also State 

v. Daniels, 5th Dist. Stark No. 2018CA00155, 2019-Ohio-3208 (identification not 

unreliable even though victim did not see who kicked in the door). Here, there was no 

suggestive out-of-court procedures that could have invalidated the in-court identification, 

J.R. made her identification in court and under oath and was subject to cross-
Stark County, Case No. 2023 CA 00083 12

examination, J.R. testified she observed appellant several times as he was rummaging 

through the store when he did not have his mask fully on, and J.R. was confident in her 

identification. 

{¶36} We find no merit in appellant’s contention that the victim’s in-court 

identification was tainted by her viewing of photographs from the surveillance video. The 

identification was based upon her own independent recollection of the events. 

{¶37} Any type of direct or circumstantial evidence may be utilized to establish the 

identity of the perpetrator of a crime. State v. Tyo, 5th Dist. Stark No. 2016CA00223, 

2018-Ohio-1374. The jury, as the trier of fact, was free to accept or reject any and all of 

the evidence offered by the parties and assess the witness’ credibility. “While the trier of 

fact may take note of the inconsistencies and resolve or discount them accordingly * * * 

such inconsistencies do not render defendant’s conviction against the manifest weight or 

sufficiency of the evidence.” State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-

Ohio-3113. The jury need not believe all of a witness’ testimony, but may accept only 

portions of it as true. 

{¶38} Appellant’s argument also overlooks the compelling evidence such as the 

surveillance video and the DNA evidence obtained from the black shoe left at the scene. 

State v. Bias, 10th Dist. Franklin No. 21AP-329, 2022-Ohio-4643 (other circumstantial 

evidence established the defendant was the shooter such as DNA); State v. Guevara, 

10th Dist. Franklin No. 21AP-414, 2023-Ohio-1448 (state may establish identity of 

perpetrator through use of DNA even if victim was not able to definitively identify 

perpetrator). Appellant’s DNA was found on the black tennis shoe that the officers found 

at the scene and matched the shoe the perpetrator was wearing in the surveillance video. 
Stark County, Case No. 2023 CA 00083 13

Appellant admitted to being friends with Mitchell, and admitted that he posted pictures of 

some of the stolen items on Facebook. The jury heard appellant’s voice in the surveillance 

video and at trial. 

{¶39} Finally, appellant argues that, even if the identification was not unreliable, 

there are other reasons why the jury’s verdict is against the manifest weight of the 

evidence. Appellant contends: the tip to police about appellant came from his exgirlfriend who appellant testified was not truthful, the stolen merchandise was not located 

in appellant’s house, and a second contributor’s DNA was on the shoe. 

{¶40} However, there is no indication the tip by J.W. is unreliable. The tip led Pilla 

to appellant and Mitchell. Appellant and Mitchell’s DNA matched the items of clothing 

worn by the suspects during the robbery. The police found the stolen merchandise at 

Mitchell’s home, and found appellant’s Facebook post of the stolen items. Though the 

stolen items were not found in appellant’s home, he listed them on Facebook. Further, 

the jury could reasonably reject the self-serving testimony of appellant. Appellant 

admitted that he attempted to fabricate an alibi for the night of the robbery. While 

appellant was certainly free to argue that “Dana” committed the crime and that the 

eyewitness identification was unreliable, on a full review of the record, we cannot say the 

jury clearly lost its way or created a manifest injustice by choosing to believe the testimony 

of J.R. and the other witnesses. 
Stark County, Case No. 2023 CA 00083 14

{¶41} The jury verdict finding appellant guilty of robbery was not against the 

manifest weight of the evidence. Appellant’s assignment of error is overruled. The 

judgment entry of conviction of the Stark County Court of Common Pleas is affirmed. 

By Gwin, J., 

Delaney, P.J., and

Wise, J., concur