Opinion
2023-T-0037
12-29-2023
STATE OF OHIO, Plaintiff-Appellee, v. KARINDU MALLORY, Defendant-Appellant.
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant Prosecutor, (For Plaintiff-Appellee). Rhys B. Cartwright-Jones, (For Defendant-Appellant).
Criminal Appeal from the Court of Common Pleas Trial Court No. 2022 CR 00402.
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant Prosecutor, (For Plaintiff-Appellee).
Rhys B. Cartwright-Jones, (For Defendant-Appellant).
OPINION
EUGENE A. LUCCI, J.
{¶1} Appellant, Karindu Mallory, appeals his conviction for aggravated robbery with an attendant firearm specification following a jury trial. We affirm.
{¶2} In January 2022, two masked men robbed a Dollar General Store on Tod Avenue in Warren Township at gunpoint. Thereafter, Mallory was implicated as one of the masked men and charged with aggravated robbery, a first-degree felony, in violation of R.C. 2911.01 (A)(1) and (C), with an attendant firearm specification. Mallory entered a not guilty plea, and the case proceeded to jury trial. The jury found Mallory guilty of the charge and specification. The trial court ordered a presentence investigation and report and set the matter for sentencing. At sentencing, the trial court ordered Mallory serve an indefinite prison term of 10 to 15 years for the aggravated robbery count and a three-year term of imprisonment on the firearm specification, to be served prior to and consecutive to the aggravated robbery sentence.
{¶3} In his first assigned error, Mallory maintains:
{¶4} "The trial Court erred in sustaining Mallory's conviction for aggravated robbery, as it was predicated solely on circumstantial evidence that did not preclude all reasonable theories of innocence, violating well-established legal standards governing the use of circumstantial evidence in criminal cases."
{¶5} In his first assigned error, Mallory maintains that "[w]hen a case leans solely on circumstantial evidence to establish an essential element of an offense, that evidence must not only support the guilt hypothesis but also defy reconciliation with any plausible theory of innocence." Citing State v. Kulig, 37 Ohio St.2d 157, 309 N.E.2d 897 (1974). However, Mallory also recognizes that this premise from Kulig was overruled by the Ohio Supreme Court in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph one of the syllabus. Therein, the Ohio Supreme Court held:
Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150,
followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) (Emphasis added.) Jenks at paragraph one of the syllabus.
{¶6} Despite this holding in Jenks, Mallory maintains that the principle cited from Kulig is "making a resurgence." However, this court is bound to follow the precedent of the Ohio Supreme Court. To the extent that Mallory argues in his first assigned error that the identification of him as a perpetrator of the robbery rested solely on the color of his shoes, we conclude that the evidence identifying Mallory as one of the perpetrators is more fully and appropriately discussed in his second assigned error. Accordingly, Mallory's first assigned error lacks merit.
{¶7} In his second assigned error, Mallory contends:
{¶8} "The conviction of Mr. Mallory for aggravated burglary with a firearm runs counter to both the manifest weight and sufficiency of the evidence, particularly as not a single witness among the eleven identified him as the individual who entered the Dollar General on January 2, 2022, thereby constituting a manifest miscarriage of justice warranting reversal and a new trial."
{¶9} Mallory challenges the manifest weight and sufficiency of the evidence establishing his identity as a perpetrator of the robbery. The "[w]eight of the evidence concerns 'the inclination of the greater amount of credible evidence * * * to support one side of the issue rather than the other.'" (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). When considering challenges to the weight of the evidence, an appellate court reviews "'the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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 be reversed and a new trial ordered.'" Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a '"'thirteenth juror'"' and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). "The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Thompkins at 387, quoting Martin at 175.
{¶10} Unlike a manifest weight review, the question of whether sufficient evidence supports the conviction "is a test of adequacy," which we review de novo. Thompkins at 386. "In a sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15, citing Jenks, 61 Ohio St.3d 259, at paragraph two of the syllabus.
{¶11} Thus, "[w]hen an appellant raises both sufficiency and manifest weight arguments in an appeal, the appellate court is only required to review the latter argument because '"a determination of whether a conviction is or is not supported by the weight of the evidence 'necessarily rests on the existence of sufficient evidence."'" State v. Fiederer, 11th Dist. Lake No. 2019-L-142, 2020-Ohio-4953, ¶ 11, quoting State v. DiBiase, 11th Dist. Lake No. 2011-L-124, 2012-Ohio-6125, ¶ 38, quoting State v. Pesec, 11th Dist. Portage No. 2006-P-0084, 2007-Ohio-3846, ¶ 44.
{¶12} Here, as set forth in our recitation of the procedural history, the jury found Mallory guilty of aggravated robbery, in violation of R.C. 2911.01(A)(1), which provides, "No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]" Further, the trial court instructed the jury on complicity pursuant to R.C. 2923.03(A), which provides:
No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense. Pursuant to R.C. 2923.03(F), "Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense."
{¶13} Here, the trial testimony of the Dollar General manager and footage from the store's surveillance system that was admitted into evidence evinces the following facts which are not in dispute. On January 2, 2022, a manager at the Dollar General Store on Tod Avenue in Warren Township was preparing to open for the day's business. At 8:00 a.m., the manager opened the store, and she noticed two males walking toward the store through a path in the grass from Tod Avenue. The men were fully masked up to their eyes and wearing heavy black coats, gloves, and caps. At approximately 8:08 a.m., the men entered the store. The first man to enter was relatively short and the man behind him was taller. The shorter of the men appears to be wearing gold sneakers in the surveillance video. After they entered, the shorter man walked past the manager and the taller man walked toward her and pulled a gun from his pocket. The man demanded she give him "everything," and they walked to the cash register. The manager opened the register, and the taller man then instructed her to open the safe. When the manager was struggling to open the safe, the shorter man told the other to just "go ahead and shoot" her. The manager was able to open the safe, and the men took cash and some rolled change, totaling slightly more than $900, from the safe and register drawers, placed it in store shopping bags, and ran out of the store on foot just before 8:10 a.m.
{¶14} After the men left, they ran across the parking lot, where they dropped and then picked back up a box containing rolled change and cash that they had taken from the safe, and the manager noticed that money was falling out of the bags. The manager locked the door and called 9-1-1 as well as her supervisor.
{¶15} Although Mallory does not challenge the evidence establishing the aggravated robbery, he does challenge the evidence pertaining to his identity as one of the perpetrators. We will limit our discussion accordingly.
{¶16} The state proceeded on the theory that Mallory was the shorter of the two masked men. In support, the state presented the testimony of police officers, the store manager, and several individuals who were familiar with Mallory.
{¶17} Officers testified that when they responded to the Dollar General robbery call, they spoke with the store manager, who was visibly shaken and upset. The manager described the robbery as set forth above, and she advised the officers that the perpetrators were two black men, one noticeably taller than the other. The manager recalled the taller of the men to have a lighter skin tone and the shorter man to have a darker skin tone. The manager indicated that the men ran south on Tod Avenue after leaving the store, and one of the grocery bags in which they had put the money had ripped.
{¶18} Officers located a cash "trail" outside the store, which they photographed. The officers followed the cash trail to Bane Street. An investigating officer later that day located a roll of pennies at the intersection of Bane Street and Tod Avenue. The officer then located more coin currency in a field toward Miller Street. He then spoke with residents of Miller Street, one of whom remembered two men in his yard that morning.
{¶19} At trial, the Miller Street resident testified that he lives about two blocks from the Dollar General store. On the morning of the robbery, he was standing in his kitchen, drinking coffee, when he noticed two people run along his driveway into his backyard. The resident opened the door and asked the men what they were doing, and one of the men said "Me, Unc," which most young people call him. With respect to whether Mallory was one of the men, the resident indicated that he had known Mallory since he was born, but he knew him by the moniker "Half Dead." The resident was unable to identify whether Mallory was one of the men that was in his yard. He described the men as thin and wearing masks and dark clothing. One man was about 5'4" to 5'5" tall and the other was about 6'1" tall. The resident noticed that the taller man had a pistol, which caused the resident to quickly shut his door. The men remained in the backyard for several minutes. After the resident saw a white car drive past his home toward Highland Avenue, he noticed that the men were gone.
{¶20} After speaking with the Miller Street resident, the investigating officer located video footage from nearby businesses and an apartment complex that recorded passing traffic in the vicinity of the Dollar General on the morning of January 2, 2022. The footage, which was entered into evidence, revealed a white SUV traveling at a high rate of speed on Highland Avenue shortly after the robbery. The officer created a video compilation, which was also admitted into evidence, tracking a partial chronological path of the SUV that morning. The video compilation was published to the jury while the officer narrated the events. The officer explained that the footage showed the SUV traveling north on Tod Avenue from Bane Street. The SUV then pulled into the parking lot of Shadi's gas station, where it parked at the first gas pump for some time, and at one point an individual approached, but did not enter, the vehicle. Thereafter, the SUV left Shadi's via an exit onto 6th Street and then turned south onto Tod Avenue. Subsequent footage showed two individuals on foot turning onto Miller Street. A short time later, the SUV turned onto Miller Street in the direction that the two individuals had headed. The SUV ran a stop sign at a cross street and then entered the parking lot of the Hampshire House, an apartment complex with individual outside unit doors. The SUV then backed into the parking spot in front of an apartment door. Two individuals exited the SUV and entered the apartment door directly behind the SUV. The SUV then left the parking lot for some time before returning to the same parking spot, where it remained for a short period. The SUV then drove toward the exit of the lot and stopped, letting out another passenger, who entered a different darker-colored car. The SUV left the lot, as did the darker car.
{¶21} A mother and daughter who resided in the apartment that the two individuals from the SUV entered, testified that a man they knew as "Half," who they later identified as Mallory, spent the night at the apartment on January 1, 2022, because he had told the mother that he needed a place to stay. On the morning of January 2, 2022, the mother and daughter awoke to their dog barking, and they then heard Mallory yell for someone to come lock the door because he was leaving. The mother locked the door, and less than an hour later, there was a banging at the door. The mother opened the door, and Mallory and another man, with whom the mother was unfamiliar, came into the apartment and sat in the kitchen together. The other man was a tall, thin black man with something covering his face, but he kept his head down while in the apartment. Mallory was wearing a pair of gold sneakers, which he had also been wearing the night prior. Minutes later, Mallory and the other man left. A few days later, law enforcement came to the apartment inquiring about the men who had entered the apartment on January 2, 2022.
{¶22} The investigating officer testified that he and the police chief were the two officers that arrived to speak to the mother and daughter to ascertain the identity of the suspects. The daughter explained that one of the men was known to them as "Half," and the daughter showed the officer a picture of "Half" from his Facebook profile. The police chief recognized "Half as Mallory. Later that day, after the officers left, the mother received voice messages from Mallory, which she saved and provided to law enforcement. Audio of the messages was admitted into evidence, as was a screen shot of the mother's texts in response to the audio messages. In the audio messages, Mallory inquired as to whether the "boys," which the officer stated was a reference to law enforcement, were knocking at her apartment. In March, the mother took a call from Mallory on speaker phone, and the daughter recorded the call on her phone. This audio was also admitted into evidence. In the recording, Mallory stated that he "beat it like OJ," and maintained that he would not be identified because he never had his mask down.
{¶23} An acquaintance of Mallory, who also knew him as "Half," testified that, on January 2, 2022, she had finished working third shift at 7:00 a.m. and went home. She then went to meet a man named Joseph Daniel, with whom she had become acquainted on social media. At that time, she recalled that Daniel drove a white Ford SUV. The acquaintance identified Daniel's car in still photographs from the Hampton House parking lot footage. The acquaintance stated that when she got into Daniel's car, two men were in the backseat, both of them wearing black coats and black ski masks. When Daniel began to drive, the man seated behind him was giving him directions on where to go to drop him off. Ultimately, Daniel and the acquaintance dropped the two men off on Bane Street, and then turned left onto Tod Avenue to go to a gas station, where they parked and smoked marijuana. The acquaintance could not remember how long they remained at the gas station, but she recalled that a man had approached the vehicle asking for money. Thereafter, Daniel received a phone call and they left the parking lot. They then went back down Bane Street, Miller Street, or another close-by street and picked the two men back up. Afterward, they went to the apartment complex, backed into a parking spot, and dropped the men off. At some point, Daniel told the acquaintance that one of the men in the backseat was "Half." Officers later showed her a photo array of men and asked her to indicate who she knew as "Half." She identified Mallory as "Half." She also identified herself as the individual in the footage who left the SUV and drove out of the Hampton House parking lot in the other car.
{¶24} Daniel testified that he was presently serving a prison term resulting from his guilty plea to complicity for the robbery at issue here. The state read to Daniel his testimony from a prior proceeding, wherein Daniel maintained that, on January 2, 2022, he picked up Mallory and another man he did not know, and he dropped them off on Bane Street, near the Tod Avenue Dollar General store. A short time later, Mallory called Daniel to pick them both up on Miller Street. Due to Daniel's resistance to testifying at trial, he was treated as a hostile witness. Daniel affirmed that he dropped Mallory and the other individual off at a house on Bane Street that morning. Daniel indicated that he did not remember much regarding the day at issue, but he did remember having Mallory in the car. On cross-examination, Daniel characterized himself as "dark skinned" and stated that he considered Mallory to be "light skinned." On redirect examination, Daniel stated that, as far as he could remember, he did not go to the Dollar General on the date at issue.
{¶25} During the investigation, officers showed the Dollar General manager a picture of Mallory, covering Mallory's face up to his eyes. The manager testified that she was not 100 percent sure that Mallory was one of the perpetrators, but she had a very emotional reaction to the picture, associating Mallory's eyes with those of the shorter robber who had instructed the other to shoot her. On cross-examination, the manager acknowledged that she had previously described the shorter man as having a darker skin complexion; although, at trial, she described Mallory as having a lighter skin tone.
{¶26} After the state rested, the defense presented the testimony of defense counsel's secretary, who had taken pictures of numerous pairs of men's shoes that she had located as available for sale at local retailers the night prior to her testimony. The pictures were admitted into evidence. On cross-examination, the secretary acknowledged that she did not know if any of the shoes were available in January 2022.
{¶27} On appeal, Mallory challenges the identification of him as a perpetrator of the robbery based merely upon his shoe color matching the shoe color of the shorter perpetrator. However, as set forth above, the consistency in shoe color was not the sole basis of identification. We recognize that the evidence implicating Mallory was circumstantial and involved some inconsistencies. However, as set forth in our discussion of Mallory's first assigned error, "[circumstantial evidence and direct evidence inherently possess the same probative value[.]" Jenks, 61 Ohio St.3d 259, at paragraph one of the syllabus. Further, "it was for the jury to resolve inconsistencies and conflicts in the evidence." State v. Perry, 11th Dist. Lake No. 2021-L-005, 2021-Ohio-2183, ¶ 33.
{¶28} After complete review of the record, this is not the extraordinary case where the jury clearly lost its way in determining that Mallory was a perpetrator of the aggravated robbery. See Thompkins, 78 Ohio St.3d at 384. Thus, Mallory's conviction is not against the manifest weight of the evidence and is therefore necessarily supported by sufficient evidence.
{¶29} Accordingly, Mallory's second assigned error lacks merit.
{¶30} The judgment is affirmed.
JOHN J EKLUND, P.J., ROBERT J. PATTON, J., concur.