State v. Irvine, 032019 OHCA9, 28998

Docket Nº:C.A. 28998
Opinion Judge:LYNNE S. CALLAHAN, JUDGE.
Party Name:STATE OF OHIO Appellee v. DAVON M. IRVINE Appellant
Attorney:WARNER MENDENHALL and BRIAN UNGER, Attorneys at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
Judge Panel:TEODOSIO, P. J. SCHAFER, J. CONCUR.
Case Date:March 20, 2019
Court:Court of Appeals of Ohio
 
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2019-Ohio-959

STATE OF OHIO Appellee

v.

DAVON M. IRVINE Appellant

C.A. No. 28998

Court of Appeals of Ohio, Ninth District, Summit

March 20, 2019

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2016-11-3764

WARNER MENDENHALL and BRIAN UNGER, Attorneys at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

LYNNE S. CALLAHAN, JUDGE.

{¶1} Defendant-Appellant, Davon Irvine, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

I.

{¶2} At approximately 4:30 a.m., the police responded to a dispatch for a burglary in progress at the home of two brothers. When they arrived, the police found the brothers bloodied and bruised, having been pistol-whipped and bound with duct-tape and zip ties during the burglary. They learned that the younger brother had managed to free himself and run for help before returning for his older brother. Though the brothers identified the burglars as two males, they were initially unable to give the officers any descriptions of significant detail.

{¶3} As the investigation took shape, several additional pieces of information caused the police to suspect Mr. Irvine was one of the burglars. First, on the night of the burglary, the younger brother pointed the police to a female friend as a person of interest. That female, A.A., had been with the younger brother that evening and had spent much of it texting someone. She was not attacked when the burglary occurred and helped the burglars restrain the younger brother. Given her involvement, the police obtained her cell phone records and identified the phone number she had been texting that evening, as well as the content of those messages.

{¶4} The brothers provided the police with a second piece of information shortly after the burglary. Specifically, they brought the lead detective a picture that the younger brother had found on Facebook. The older brother believed that the picture depicted one of the burglars, and the detective was able to identify the man in the picture as Mr. Irvine. The police then obtained a different picture of Mr. Irvine and presented it to the older brother. Again, the older brother confirmed that Mr. Irvine was one of the burglars.

{¶5} Once the police had reason to suspect Mr. Irvine, they were able to find a connection between him and the cell phone number that A.A. had repeatedly texted on the night of the burglary. The number itself was associated with a TracFone, so no subscriber information was available. Even so, additional phone records evidenced exchanges between that same phone number and others associated with Mr. Irvine, including his mother and the mother of his child. Some ten months after the burglary had occurred, the police finally arrested Mr. Irvine. Mr. Irvine was apprehended in Texas even though he was subject to a court order that required him to remain in Ohio.

{¶6} A grand jury indicted Mr. Irvine on two counts of aggravated robbery, one count of aggravated burglary, two counts of kidnapping, and one count of having a weapon under disability. Additionally, firearm specifications were linked to all but one of his six counts. The matter proceeded to trial and, at its conclusion, the jury found Mr. Irvine not guilty of having a weapon under disability, but guilty of his remaining counts and specifications.

{¶7} The trial court merged Mr. Irvine's kidnapping counts and their attendant firearm specifications with his aggravated robbery counts and their attendant firearm specifications. It then sentenced him to ten years on each of his aggravated robbery counts, ten years on his aggravated burglary count, and three years on each of his three firearm specifications. The court ordered the terms for one of his aggravated robbery counts and its attendant firearm specification to run consecutively with the terms for his aggravated burglary count and its attendant firearm specification. It ordered him to serve the remainder of his terms concurrently with that sentence. Consequently, Mr. Irvine received a total sentence of twenty-six years in prison.

{¶8} Mr. Irvine now appeals from his convictions and raises nine assignments of error for this Court's review. For ease of analysis, this Court rearranges and consolidates several of the assignments of error.

II.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S CRIM.R. 29 MOTION AT THE CLOSE OF THE STATE'S EVIDENCE; THE PROSECUTION FAILED TO PRESENT EVIDENCE SUFFICIENT TO SATISFY THE NECESSARY ELEMENT OF IDENTITY[]

{¶9} In his fourth assignment of error, Mr. Irvine argues that the court erred when it denied his Crim.R. 29 motion for acquittal. Specifically, he argues that the State set forth insufficient evidence that he was the individual who perpetrated the crimes set forth herein. This Court disagrees.

{¶10} "'[This Court] review[s] a denial of a defendant's Crim.R. 29 motion for acquittal by assessing the sufficiency of the State's evidence.'" State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 6, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. Whether the evidence in a case is legally sufficient to sustain a conviction is a question of law that this Court reviews de novo. See State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. "In essence, sufficiency is a test of adequacy." Thompkins at 386. Although the standard of review is de novo, the appellate court does not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact. State v. Tucker, 9th Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.

{¶11} "The identity of a perpetrator must be proved by the State beyond a reasonable doubt." State v. Moorer, 9th Dist. Summit No. 27685, 2016-Ohio-7679, ¶ 24. "As with any other element, * * * identity may be proved by direct or circumstantial evidence, which do not differ with respect to probative value." State v. Taylor, 9th Dist. Summit No. 27273, 2015-Ohio-403, ¶ 9. Because Mr. Irvine limits his sufficiency challenge to the issue of identity, this Court confines its analysis to that issue. See State v. Webb, 9th Dist. Summit No. 27424, 2015-Ohio-2380, ¶ 6.

{¶12} As noted, the victims in this matter were two brothers who lived together at the time of the burglary. The younger brother testified that, on the night of the burglary, a woman he had known for about ten years approached him and accepted his invitation to come home with him. The two kept each other company into the early morning hours, but the woman, A.A., spent a significant amount of time texting on her phone. Eventually, the two took a brief trip to the store. Upon their return, A.A. "was dragging behind" the younger brother by about five feet as he entered the house. Almost immediately thereafter, someone began pistol-whipping him. The younger brother testified that A.A. helped tie him up and watched him while two men burglarized the house, threatened his life, and discussed whether they should kill his older brother as a result of the older brother having seen their faces. Though the younger brother was in close proximity to the burglars at certain points, he admitted that he never had a good opportunity to see their faces.

{¶13} The older brother confirmed that he was at home when his younger brother arrived with A.A. and, later, when they left to go to the store. He recalled being down in the basement when he heard an odd noise and walked upstairs to investigate. He was then pistol-whipped by two men and bound with zip ties and duct tape. When the police initially spoke with the older brother, he was unable to provide them with many details about the men he saw. Nevertheless, he testified that he saw the men clearly. When his brother showed him a large number of social media pictures in the hopes of identifying the burglars, the older brother was able to recognize one of the men. He confirmed that he and his brother shared that picture with the lead detective. The lead detective then showed him a different picture of the same man, and the older...

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