COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69148 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION DUJUAN DAVIS, aka : DUJUAN ALBRITTON : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 9, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-320241 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL B. TELEP, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DONALD BUTLER 75 Public Square Suite 1111 Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Dujuan Davis appeals the judgment of the Common Pleas Court, entered pursuant to a jury verdict, finding him guilty of aggravated robbery in connection with a carjacking incident. On December 17, 1994 Freddy Edwards drove Beatrice Cliff's 1984 brown Toyota Camry to the E & T Market on E. 55th Street in Cleveland and parked on the street in front of the store. Edwards had repaired the car and retained possession of it while awaiting payment. According to Edwards, as he left the store, a man whom he later identified as Dujuan Davis, approached him and asked for change. When Edwards refused, Davis showed a gun and demanded that Edwards place his keys on top of the car. Edwards complied and backed around the car as Davis waved the gun at him. A second man, whom Edwards later identified as Robert Eskridge, then grabbed Edwards from behind and when Edwards pushed him away, Eskridge grabbed the keys and took the car. Davis continued to hold Edwards at gunpoint and demanded money, so Edwards threw his money on the ground, and Davis took it before leaving. Edwards, then, ran back into the store, told the store owner he had been robbed, and asked him to call the police. When the store owner refused, Edwards called the police from a pay phone across the street and reported the robbery. - 3 - When the police arrived, Edwards explained what happened but could not provide the license plate number or any other specific information about the vehicle because he did not own it. The police took the descriptions given by Edwards and told him to call when he obtained the specific vehicle information. The next day, as Freddy Edwards drove around town with his girlfriend Bernadine O'Neal, he spotted Davis driving the stolen Camry and followed him until he parked it. O'Neal then called the police to give the location. When the police arrived, Edwards, O'Neal, and the police approached Davis, Eskridge and a third man who were shooting craps on the sidewalk near the parked Camry. Freddy Edwards identified Davis and Eskridge as the two men who had robbed him, but explained that the third man was not involved. The police then arrested Davis and Eskridge and impounded the car. At the time of the arrests, the police could not find the keys to the Camry nor the gun used in the robbery. Eventually they discovered that Davis had hidden the keys inside the seat of the police car, and after the police released the car to its owner, Beatrice Cliff one week later, Bernadine O'Neal delivered a .38 caliber revolver, claimed to have been found in the vehicle by Beatrice Cliff's husband. The Grand Jury returned indictments against both Davis and Eskridge charging each with aggravated robbery and having a weapon while under a disability and the court combined both cases - 4 - for trial. At trial, the state presented seven witness, Davis testified on his own behalf, and Eskridge presented four witnesses. After deliberation, the jury returned verdicts finding Dujuan Davis guilty of aggravated robbery, with a firearm specification, but not guilty of having a weapon while under a disability. Davis now appeals and assigns two errors for our review. The first assignment of error states: DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Davis argues the jury's verdicts were against the manifest weight of the evidence because he demonstrated contradictions in the testimony of Freddy Edwards, the only witness to connect Davis to the robbery. The state contends the manifest weight of the evidence supports the jury's verdict in this case because Freddy Williams testified about the robbery and identified Dujuan Davis as the gunman, and also because Davis's credibility had been questioned by evidence that he lied to the police. The issue, then, for our consideration is whether the jury verdict is against the manifest weight of the evidence in this case. In determining whether a verdict is against the manifest weight of the evidence on appeal, this court weighs the evidence. - 5 - As explained by the court in State v. Martin (1983), 20 Ohio App.3d 172 at 175: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. In this case, Freddy Davis testified that Dujuan Davis approached him on the street, showed a weapon, and then threatened to shoot him while demanding money. He further testified that he saw Davis driving the stolen car the day after the robbery, and then identified Davis at the scene of a crap game. Edwards also identified Davis in the courtroom as the man who had robbed him at gunpoint. The store owner corroborated that Edwards had come back into his store shortly after leaving and asked him to call the police because his car had been stolen. He also testified that he knows Dujuan Davis but that he did not see him on the night in question. Dujuan Davis testified on his own behalf and stated that he stayed home and watched movies on the evening of the incident. He explained that he had rented cars in the past from his friend Tim Norwood, and that late that night Norwood came to his house and he paid him $20 for the use of the Camry until the next day. Davis also admitted that he lied to the police on several - 6 - occasions, including giving the wrong name and address when they arrested him. After weighing this evidence and considering the credibility of the witnesses, as we are required to do under Martin, supra, we cannot conclude that the jury lost its way in resolving conflicts in the evidence in this case. The victim identified Davis as the person who robbed him, and other witnesses corroborated his testimony about the incident. The defense Davis presented consisted only of testimony on his own behalf, and Davis's credibility had been questioned by evidence that he had lied to the police. He provided no witnesses to corroborate his whereabouts on the evening of the robbery. Furthermore, Davis admitted in court that he had been driving the vehicle owned by Beatrice Cliff and taken from Edwards. Accordingly, the conviction is not contrary to the manifest weight of the evidence and the first assignment of error is overruled. The second assignment of error states: THE COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR IN ADMITTING INTO EVIDENCE THE GUN OVER THE OBJECTION OF COUNSEL IN THAT THERE WAS NOT AN UNBROKEN CHAIN OF CUSTODY OF THE PHYSICAL EVIDENCE TESTED FROM ITS SOURCE UNTIL ITS ADMISSION AND DENIED THE APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Davis contends the trial court unduly prejudiced his rights by admitting the gun into evidence because the state failed to establish a proper chain of evidence. He further contends that - 7 - because two people involved in the chain of evidence failed to testify, the state violated his right to confront witnesses and thereby deprived him a fair trial. The state contends the trial court properly admitted the gun into evidence because Freddy Edwards identified it as the weapon used to rob him. The issue for our resolution is whether the trial court erred in admitting the gun into evidence when a proper chain of custody had not been established. "The state bears the burden of establishing the proper chain of custody; however, it is not an absolute duty." In re Lemons (1991), 77 Ohio App.3d 691, 693. In fact, as the Ohio Supreme Court explained in State v. Wilkins (1980), 64 Ohio St.2d 382, 389, "A strict chain of custody is not always required in order for physical evidence to be admissible." Rather, the chain of custody constitutes an evidentiary tool to establish the identity of property. Hawkins v. Marion Corr. Inst. (1992), 62 Ohio App.3d 863. Moreover, "[t]he possibility of contamination goes to the weight of the evidence, not its admissibility." State v. Richey (1992), 64 Ohio St.3d 353, 360. "It is axiomatic that a determination as to the admissibility of evidence is a matter within the sound discretion of the trial court." Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164. However, Evid. R. 901 requires identification as a condition precedent to admissibility. Identification is - 8 - satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. In this case, the victim Freddy Edwards identified the gun as the weapon used in the robbery; therefore, even though a strict chain of custody did not exist in this case because Irvin Cook and Alvin O'Neal did not testify as to the identity of the weapon, Edwards sufficiently identified the gun to meet Evid. R. 901. Hence, the trial court properly admitted the weapon into evidence based on the identification, and any breaks in the chain of custody went to the weight of the evidence, a matter properly before the jury as trier of fact. Accordingly, the trial court did not err in admitting the gun into evidence, and the 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. KARPINSKI, J., and PATTON, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .