COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68499 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JERRY SHAMBLIN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 2, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-314379 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MILES A. CAMP, ESQ. Cuyahoga County Prosecutor 14837 Detroit Avenue RONNI DUCOFF, ESQ. Suite 305 Assistant County Prosecutor Lakewood, Ohio 44107 8th Floor Justice Center and 1200 Ontario Street RUSSELL HOPKINS, ESQ. Cleveland, Ohio 44113 1128 Pleasant Valley Road, #235 Cleveland, Ohio 44134 -2- -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Jerry Shamblin, appeals a decision from the trial court convicting him of robbery and assault. Shamblin assigns the following two errors for our review: I. JERRY SHAMBLIN WAS DENIED HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHTS BY THE TRIAL COURT ERRONEOUSLY ADMITTING IN COURT IDENTIFICATION THAT HAD BEEN TAINTED BY IMPROPER POLICE PROCEDURE. II. THE VERDICT AND JUDGMENT RENDERED BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INSUFFICIENT AS A MATTER OF LAW. After a careful review of the record and the arguments presented by both parties, we affirm the decision of the trial court. The apposite facts follow. Chandra Meesig, Zachary Serafin, and Michael Thoma were leaving a neighborhood club when they noticed a car coming toward them. As the car passed by, its occupants shouted obscenities out of the window at them. Four of the men in the car ran toward them, yelling and screaming obscenities. Meesig and Serafin jumped into Meesig's car and locked the doors but Thoma, who had driven separately was trapped outside. One of the men, Jerry Shamblin, defendant-appellant, punched Thoma in the head, then proceeded toward the car where he began pounding and kicking the passenger side window as Meesig attempted to start the car. Meanwhile, another of the men, Roger Grider, continued to punch Thoma. Shamblin succeeded in kicking through the passenger side window. He then reached into the car and removed Meesig's pull- out car stereo. As he was reaching into the car, it began to roll. -4- Shamblin then told Meesig not to move the car or she would be killed. After removing the stereo from the car, Shamblin returned and demanded the chassis for the radio. Serafin gave it to him. Shamblin then demanded money. When Serafin refused, Shamblin punched him in the ribs three times, hit him on the side of the head, and grabbed him by the collar. Serafin gave him six dollars. Meesig succeeded in starting the car and drove away. As she left the scene, she saw the lights from a police car and returned to talk to them. Based upon the information gathered from the witnesses and the victims, the police rounded up Shamblin and Grider and placed them into the police car. Meesig, Serafin, and Thoma all identified Shamblin and Grider as participants in the attack. Thoma was taken to the hospital where he received several stitches for a cut on his head. He also received a black eye and one of his eyes was swollen shut. Shamblin was charged with aggravated robbery of Zachary Serafin, robbery of Michael Thoma, robbery of Chandra Meesig, and felonious assault of Michael Thoma. The case went to trial on January 4, 1995. At the end of the state's case, the trial court granted a Crim.R. 29 motion for acquittal on count two (robbery of Michael Thoma) because there was no evidence that anything was taken from Thoma. Shamblin was later convicted on the other counts and sentenced to concurrent terms of 3 to 15 years each for the two robbery counts and six months for felonious assault. This appeal followed. -5- Shamblin argues that the victims' in-court identifications of Shamblin were tainted by improper police procedure and should have been excluded at trial. However, our review of the record reveals that Shamblin failed to raise any objection to the in-court identifications at the time they were made and even stipulated to the identifications by Serafin and Thoma. Notwithstanding the above, we find that the in-court identifications were properly admitted. An in-court identification made after a pre-trial identification will not be suppressed unless the pre-trial identification procedure was so impermissibly suggestive that the subsequent in-court identification was irreparably tainted. State v. Halley (1994), 93 Ohio App.3d 71. Even when it follows an improper out-of-court identification, an in-court identification will be upheld where it is shown that the witness had a sufficiently reliable independent basis for his identification. State v. Broom (April 11, 1991), Cuyahoga App. No. 58386, unreported. When evaluating the reliability of an eyewitness identification, we must consider the witness' opportunity to view the criminal during the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the witness' level of certainty at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers (1972), 402 U.S. 188,189. Applying the above factors to this case, we find that the witnesses who testified at trial had sufficient independent bases for their identifications of Shamblin to indicate reliability. -6- Chandra Meesig testified that the encounter lasted from four to ten minutes. She also said that although she was trapped in her car through the attack, she was able to see to her left, to her right, behind her, and in the rear view mirror. Zachary Serafin testified that, after stealing the car radio, Shamblin returned to the passenger side of the car where Serafin was sitting and hit him three times in the head. According to Serafin, Shamblin also grabbed him by the collar with enough force that his shirt buttons popped off. This testimony indicates that Serafin was only an arm's length away from Shamblin. Michael Thoma testified that Shamblin appeared to be the ring leader and that Shamblin punched him in the head as he went past. Meesig, Serafin, and Thoma all identified Shamblin at the scene immediately after the attack. We find that the in-court identifications had sufficient independent bases of reliability to justify their admission. Shamblin's first assignment of error is overruled. In his second assignment of error, Shamblin argues that his conviction was against the manifest weight of the evidence. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172,175. -7- "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 (1991), 61 Ohio St.3d 259,273. In order to prove robbery under R.C. 2911.02, the prosecution had to show that Shamblin, in attempting or committing a theft offense, or in fleeing immediately thereafter, used or threatened the immediate use of force against the victims. In order to prove assault under R.C. 2903.13, the prosecution had to show that Shamblin knowingly caused or attempted to cause physical harm to the victims. The state presented evidence that Shamblin led the attack on the victims, punching Thoma in the head repeatedly before proceeding to kick Meesig's passenger window in. He also reached into the car up to his waist and stole her radio and chassis. When she tried to escape, he threatened to kill her if she kept going. Meesig testified that she feared for her safety and for Serafin's safety. Thoma was seriously injured in the attack. We find that the evidence presented is sufficient to establish each element of the crimes of assault and robbery. In addition, we find that the convictions were not against the manifest weight of the evidence. The testimony of the victims describes a violent attack by Shamblin and his associates during which Thoma was seriously injured and which culminated in the theft of Meesig's car radio and chassis and Serafin's $6.00. The jury's -8- verdict did not create a manifest miscarriage of justice. Rather, it reflected a reasonable evaluation of the evidence presented. Shamblin's second assignment of error is overruled. Judgment affirmed. -9- It is ordered that Appellee recover of Appellant its 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. JOHN T. PATTON, C.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .