State v. Johnson

[Cite as State v. Johnson, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             Nos. 112387 and 112462
                 v.                                 :

MARVIN JOHNSON, JR.,                                :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 14, 2023


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                  Case Nos. CR-20-650605-A and CR-21-656151-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brad S. Meyer, Assistant Prosecuting
                 Attorney, for appellee.

                 The Goldberg Law Firm and Adam Parker, for appellant.


MARY EILEEN KILBANE, J.:

                   In this consolidated appeal, defendant-appellant Marvin Johnson, Jr.

(“Johnson”) appeals from his convictions for aggravated robbery and other offenses.

For the reasons that follow, we affirm.
Factual and Procedural History

              This delayed appeal stems from two separate criminal cases and

multiple trials.   In Cuyahoga C.P. No. CR-20-650605-A, on June 9, 2020, a

Cuyahoga County Grand Jury indicted Johnson on two counts of grand theft in

violation of R.C. 2913.02(A)(1), 12 counts of aggravated robbery in violation of R.C.

2911.01(A)(1), six counts of having weapons while under disability in violation of

R.C. 2923.13(A)(2), four counts of theft in violation of R.C. 2913.02(A)(1), two

counts of breaking and entering in violation of R.C. 2911.13(A), one count of

felonious assault in violation of R.C. 2903.11(A)(1), two counts of felonious assault

in violation of R.C. 2903.11(A)(2), one count of discharge of a firearm on or near

prohibited premises in violation of R.C. 2923.162(A)(3), and one count of receiving

stolen property in violation of R.C. 2913.51(A). Many of the counts also carried a

variety of firearm and other specifications.

              In Cuyahoga C.P. No-CR-21-656151-A, on January 21, 2021, a

Cuyahoga County Grand Jury indicted Johnson on three counts of aggravated

robbery in violation of R.C. 2911.01(A)(1), two counts of having weapons while under

disability in violation of R.C. 2923.13(A)(2), one count of felonious assault in

violation of R.C. 2903.11(A)(2), and one count of discharge of a firearm on or near

prohibited premises in violation of R.C. 2923.162(A)(3). Each count had multiple

firearm specifications, notice of prior conviction specifications, and repeat violent

offender specifications.
               On September 16, 2021, the trial court granted a motion to sever in

part, resulting in multiple trials of specific counts from the aforementioned

indictments as described below.

Case 656151 – T-Mobile

               In Cuyahoga C.P. No-CR-21-656151-A, the court granted Johnson’s

motion to sever Count 1, aggravated robbery, and Count 2, having weapons while

under disability, from the remaining counts. Johnson waived his right to a jury trial

as to Count 2, the notice of prior conviction specification, the repeat violent offender

specification, and the 18-month and 54-month firearm specifications on Count 1.

On November 3, 2021, the case proceeded to a jury trial on Count 1, aggravated

robbery, and the attendant one- and three-year firearm specifications.               The

following information was elicited at trial.

               On December 7, 2019, a suspect robbed a T-Mobile store at Shaker

Square in Cleveland, Ohio at gunpoint. The assistant store manager at the time,

Ronnie Ransom (“Ransom”) testified that a masked man carrying a gun entered the

store, approached Ransom and Sharonda Smith (“Smith”),1 the other employee on

duty at the time, and ordered them to give him cash and phones. Ransom testified

that they complied with his demands and when Ransom put iPhones into the

suspect’s bag as ordered, he also put a dummy phone into the bag. Ransom

explained that all T-Mobile stores were equipped with a tracking device that was



      1 Smith also testified at trial via Zoom.   Her version of events mirrored Ransom’s
testimony.
packaged and concealed in an iPhone box for loss prevention purposes. When the

tracking device left the store, the device automatically “pinged” the third-party

security company, which then followed up with the store. Ransom testified that

when someone from the company called the store, they communicated directly with

the police and worked to locate the tracking device.

              Ransom also testified that immediately after the suspect left the store,

as Ransom went to lock the front door of the store, an individual approached him

and provided Ransom with a partial license plate number from the suspect’s vehicle.

Ransom testified that he saw the suspect drive away in a dark car.

              Laurence Szapor (“Szapor”) testified that he works for 3SI Security, a

company that provides GPS trackers included in items, such as dummy phones, to

assist businesses when property is stolen from certain locations. Szapor testified

that when T-Mobile’s tracking device left the store, it alerted 3SI and 3SI was able

to track the device’s location in real time using a web-based Google map. Szapor

testified that this information was shared with Cleveland police. Szapor testified

that the tracking device was first located at 10502 Shaker Boulevard, was there for

approximately six minutes, and was subsequently tracked to the 3200 block of East

118th Street in Cleveland, Ohio.

              Detective Rayshon Blue (“Blue”) testified that in December 2019, he

was working as a patrol officer for the Cleveland Division of Police. Blue testified

that he responded to the T-Mobile store following a radio call that the store was

robbed at gunpoint. Upon arriving at the store, Blue spoke with Ransom, who
summarized the events above. Shortly thereafter, the store manager arrived at the

store to provide law enforcement with the store’s security footage. The security

footage showed the suspect wearing a black Puma Ferrari track suit.

               Blue testified that there was no physical evidence to collect from

inside the store, because security footage confirmed that the suspect did not touch

anything inside the store. Throughout the robbery, the suspect held a gun in one

hand, wore a glove on the other hand, and directed the store employees to empty the

drawers and safes into his bag so that he did not touch them.

               Blue testified that the partial plate number provided from an

unknown individual turned out to be incorrect but by using T-Mobile’s tracking

device, police were ultimately able to locate the suspect’s vehicle.

               Detective Devan Wynn (“Wynn”) testified that he was also working as

a patrol officer for the Cleveland Division of Police in December 2019. Wynn

testified that he was tasked with locating the suspect’s car based on tracking

information. Wynn went to an apartment complex at 10502 Shaker Boulevard

looking for a black Chrysler Sebring. Wynn testified that he located the vehicle in

the building’s rear parking lot and it had a temporary license plate that was one

number off from the information that was provided at the scene from an unknown

individual. Wynn provided this information to police dispatch and learned that the

license plate came back to another vehicle — a Nissan Altima — meaning that the

Sebring was stolen. Wynn testified that he did not touch the vehicle or search the

inside of the vehicle and it was ultimately towed to the police processing lot.
              Detective Walter Emerick (“Emerick”) testified that he was a

detective with the Cleveland Division of Police and was assigned to process the

Chrysler Sebring in connection with this case. Emerick testified that as part of this

process, he collected DNA swabs from the vehicle’s steering wheel and gearshift.

              Detective Christopher Musson (“Musson”) testified that he was a

detective with the Cleveland Division of Police and in December 2019, he was

working as a patrol officer. Musson testified that he was dispatched to East 118th

Street after it was determined that this was the last known location of the tracking

device. Musson testified that he responded first to 3226 East 118th Street, which

appeared to be a vacant house. Musson testified that several other officers were on

the scene, and he went down the driveway of a neighboring house to get a better

view of the rear of the houses. Musson testified that he located the tracking device

in the driveway of 3230 East 118th Street. Detective Michael Hale (“Hale”) testified

that he was employed as a detective with the Cleveland Division of Police in the

crime scene unit. Hale testified that he responded to 3230 East 118th Street and

collected the tracking device into evidence.

              Detective Shane Bauhof (“Bauhof”) testified that he was a detective

with the Cleveland Division of Police and in December 2019, he was employed in the

major crimes unit. Bauhof testified that he was tasked with executing a search

warrant in connection with this case. On January 7, 2020, Bauhof executed a search

warrant at 10502 Shaker Boulevard, Apartment 89, which was associated with

Johnson. Bauhof explained that he was looking for several things, including a red
Puma Ferrari jacket, a black hoodie, and black Nike high-top sneakers. Bauhof

testified that he located a black Puma Ferrari jacket that matched the one worn by

the suspect in the security footage, as well as black Nike high-top sneakers and a

firearm.

              Detective Lisette Gonzalez (“Gonzalez”) testified that she was a

detective with the Cleveland Division of Police and in December 2019, she was

employed in the major crimes unit. Gonzalez testified that after another detective

searched the contents of the Chrysler Sebring used in connection with the robbery

in this case, Gonzalez received receipts from the car. Gonzalez testified that she was

given a Walgreens receipt and a Home Depot receipt. Based on those receipts,

Gonzalez went to a Walgreens store on Shaker Boulevard and ultimately learned

that Courtney Reed (“Reed”) had picked up a prescription from that store from the

drive-through pharmacy window in a black Chrysler Sebring. Gonzalez also visited

the Home Depot store in Steelyard Commons and obtained a still photograph from

security footage showing Reed and Johnson. Gonzalez subsequently looked up Reed

and determined that Reed’s relative, Isaac Hill, had a Nissan Altima registered in his

name. Gonzalez noted this because the license plate on the Sebring was attached to

a Nissan Altima. Gonzalez also learned that Reed lived at 10502 Shaker Boulevard.

Gonzalez learned that Johnson was associated with 3230 East 118th Street; this

address was on an identification card of Johnson’s found while executing a search

warrant in connection with this case. Through this investigation, Gonzalez learned

that Reed and Johnson were in a romantic relationship. Gonzalez was also able to
obtain photos of Johnson from social media showing Johnson wearing the black and

red Puma Ferrari jacket.

              Gonzalez also testified that as part of the investigation, she obtained

a search warrant for buccal swabs from Johnson to compare to the DNA samples

taken from the Chrysler Sebring. Gonzalez identified Johnson at trial.

              Detective Tim Cramer (“Cramer”) testified that he was employed with

the Cleveland Division of Police and in December 2019, he was a detective in the

major crimes unit. Cramer testified that he was assigned to this case in December

2019. Cramer testified that he began responding to a call of an aggravated robbery

at Shaker Square, changed direction en route to follow the tracking device to the

Shaker Boulevard apartment complex, and then changed direction again to

ultimately respond to East 118th Street.

              Cramer testified that as a result of the investigation described above,

police arrested Johnson in January 2020.       Following Johnson’s arrest, police

obtained a search warrant for his phone and ultimately obtained location data

placing him at Walgreen’s in corroboration of the security footage and Reed’s

receipt.

              Christine Scott (“Scott”) testified that she was employed at the

Cuyahoga County Regional Forensic Science Laboratory as a DNA analyst. Scott

testified that she analyzed the DNA evidence collected from the Chrysler Sebring

and compared it to Johnson’s buccal sample and subsequently prepared a report in

connection with this case. Scott testified that the evidence contained DNA from two
unknown contributors, one of which was determined to be Johnson. Salesha Frantz

(“Frantz”) testified that she was also employed as a DNA analyst in the county

forensic science laboratory. Frantz testified that she tested DNA collected from the

tracking device and box and compared it to Johnson’s buccal sample and

determined that Johnson had contributed DNA to the evidence collected from the

tracking device.

               Johnson made an oral motion for acquittal pursuant to Crim.R. 29.

The trial court denied this motion. The defense rested and then renewed its Crim.R.

29 motion, which the trial court again denied.

               On November 9, 2021, the jury found Johnson guilty of aggravated

robbery and the one- and three-year firearm specifications. The court subsequently

found Johnson guilty of having weapons while under disability and the remaining

specifications tried to the court.

               On November 30, 2021, Johnson filed a motion for a new trial. On

December 22, 2021, the state filed objections to Johnson’s motion. On January 6,

2022, the court held a hearing on the motion. The court held its ruling on the motion

in abeyance and continued the case to allow time for a transcript to be prepared.

               The court reconvened on March 30, 2022, and the parties again made

arguments as to Johnson’s motion for a new trial. On April 6, 2022, the court denied

Johnson’s motion for a new trial. On March 3, 2023, after the remaining counts and

cases had been resolved as described below, Johnson filed a notice of appeal and a

motion for delayed appeal.
Case 650605 – Boost Mobile

               On May 6, 2022, Cuyahoga C.P. No. CR-20-650605-A was set for a

bench trial on Count 4, aggravated robbery; Count 5, theft; and Count 6, having

weapons while under disability. Prior to trial, the state amended Count 4 from

aggravated robbery to robbery, a felony of the second degree, in violation of R.C.

2911.02(A)(2), and deleted the one-year, three-year, and 54-month firearm

specifications.2 The state also dismissed Count 6, having weapons while under

disability.

               Prior to trial, defense counsel stipulated to a DNA report previously

testified to by Scott, stating that Johnson’s DNA was found in the Chrysler Sebring.

               The following information was elicited at trial.

               On the evening of November 13, 2019, a suspect walked into a Boost

Mobile store in Cleveland, Ohio, carrying a long rifle. Nishayla Wilson (“Wilson”)

testified that she was working as a cashier at Boost Mobile when a man came into

the store, pointed a gun at her, and ordered her to empty the cash register and give

him cash and iPhones. Wilson testified that she did as the suspect instructed. The

suspect was wearing a Puma Ferrari jacket and left the scene in a black Chrysler

Sebring. Wilson testified that once the suspect left, Wilson called the police and her

manager.




       2 Count 4 still carried a notice of prior conviction specification and repeat violent

offender specification.
              Risel Maldonado (“Maldonado”) testified that he was the district

manager of the Boost Mobile store in November 2019 when he received a message

from Wilson that the store had been robbed. Maldonado testified that he went to

the store and found Wilson, who was shaken up. Maldonado cooperated with police

and provided them with the store’s surveillance footage. After checking the store’s

inventory, Maldonado confirmed that six iPhones had been stolen, along with about

$500 cash.

              Officer Clayton Ellenberger (“Ellenberger”) testified that in

November 2019, he was a patrol officer with the Cleveland Division of Police who

responded to the Boost Mobile robbery. Ellenberger testified that he spoke with

Wilson, who relayed the events described above, and Maldonado, who provided him

with surveillance footage.

              The state also called Wynn to testify, much as he did in Cuyahoga C.P.

No. CR-21-656151-A, that he responded to the December 2019 T-Mobile robbery

and ultimately located a black Chrysler Sebring that contained information

connecting the car to Johnson, as well as DNA evidence from Johnson.

              Bauhof testified that he was assigned to the Boost Mobile robbery the

following day. Similarly to Wynn, Bauhof testified that following the T-Mobile

robbery, he executed a search warrant at a Shaker Boulevard apartment building

and found clothing — a Puma Ferrari jacket — that appeared to have been worn by

the suspect in both the T-Mobile and Boost Mobile robberies. Finally, Gonzalez
likewise testified as to the nature of her investigation into Johnson following both

robberies.

               At the close of the state’s case, Johnson made a Crim.R. 29 motion for

acquittal; the trial court denied this motion. The defense rested and then renewed

its Crim.R. 29 motion, which the trial court again denied.

               On May 9, 2022, the court found Johnson guilty of amended Count

4, robbery, and Count 5, theft. Following the verdict, defense counsel informed the

court that it had some concerns about Johnson’s competency and requested a

psychiatric evaluation to determine whether Johnson was competent.

               On November 30, 2022, following numerous status hearings with

respect to Johnson’s competency, defense counsel stipulated to an August 19, 2020

psychiatric evaluation finding that Johnson was competent. The state subsequently

informed the court that following discussions with defense counsel, the parties had

reached a preliminary agreement to a global resolution of the remaining counts and

specifications in all cases. The state requested a recess to finalize the terms of this

agreement.

Plea Agreement and Sentence

               Following a brief recess, the state outlined the terms of the plea

agreement3 as follows: in Cuyahoga C.P. No. CR-21-656151-A, Johnson would plead

guilty to one count of aggravated robbery with a three-year firearm specification and


      3 The plea agreement involved three other cases: Cuyahoga C.P. No. CR-20-

652028-A, Cuyahoga C.P. No. CR-21-665209-D, and Cuyahoga C.P. No. CR-22-674437-
A. These three cases are not a subject of this appeal.
one count of felonious assault. In Cuyahoga C.P. No. CR-20-650605-A, Johnson

would plead guilty to two counts of theft, four counts of aggravated robbery, two

counts of breaking and entering, one count of felonious assault, one count of having

weapons while under disability, and one three-year firearm specification. The

agreement also included an agreed total prison sentence of 18 years with no judicial

release. Finally, the agreement required that Johnson have no contact with any of

the named victims in any of the cases. Defense counsel confirmed that this was

Johnson’s understanding of the plea agreement.

               On December 13, 2022, the court held a change of plea hearing. The

court engaged Johnson in a plea colloquy, and Johnson pleaded guilty to the

aforementioned offenses and specifications. The court then proceeded directly to

sentencing. The assistant prosecuting attorney, defense counsel, and Johnson

addressed the court. The court sentenced Johnson to a total aggregate prison term

of 18 to 19 and one-half years.

               On February 7, 2023, Johnson filed a motion for delayed appeal and

a notice of appeal in Cuyahoga C.P. No. CR-20-650605-A. On March 1, 2023, this

court granted Johnson’s motion for delayed appeal. In a corresponding journal

entry, this court stated that

      [a] review of the record shows that appellant was sentenced in
      conjunction with several companion cases. Along with the trial court
      appointing attorney Parker regarding the instant appeal of CR 20-
      650605, the trial [court] also appointed attorney Parker to the appeal
      of CR 20-656151. Attorney Parker has not filed an appeal regarding CR
      20-656151 and is directed to do so along with filing a motion for a
      delayed appeal and a motion to consolidate with the instant appeal.
              On March 3, 2023, Johnson filed a notice of appeal, a motion for

delayed appeal, and a motion to consolidate the appeals in Cuyahoga C.P. No. CR-

21-656151-A. On March 22, 2023, this court granted Johnson’s motions for delayed

appeal and motion to consolidate the appeals. Johnson now appeals, presenting six

assignments of error for our review:

      I. The trial court erred in overruling appellant’s motion for a new trial.

      II. The state’s improper comments during closing argument deprived
      Mr. Johnson of a fair trial.

      III. Appellant’s trial counsel was ineffective for failing to object to the
      state’s improper comments during closing argument.

      IV. Cumulative error deprived appellant of a fair trial.

      V. Defendant’s convictions are against the sufficiency of the evidence.

      VI. Defendant’s convictions are against the manifest weight of the
      evidence.

Law and Analysis

I. Motion for a New Trial

              In Johnson’s first assignment of error, he argues that the trial court

erred in denying his motion for a new trial where the jury heard evidence of other

crimes that was inadmissible under Evid.R. 404(B). Specifically, Johnson refers to

testimony from Gonzalez during the jury trial in Cuyahoga C.P. No. CR-21-656151-

A. During the state’s direct examination of Gonzalez, the assistant prosecuting

attorney showed her a still photograph and asked if she recognized what the

photograph depicted. She responded:
      It's a picture of Marvin Johnson in a Puma style jacket at the entrance
      of the store that was attempted to be broken into on East 71st Street.

Defense counsel objected to this response, and the court sustained the objection and

struck Gonzalez’s statement from the record and instructed the jury to disregard the

statement.

               Crim.R. 33 sets forth grounds upon which a new trial may be granted.

State v. McMahan, 8th Dist. Cuyahoga No. 82753, 

. Crim.R.

33(A)(2) provides that a new trial may be granted on motion of the defendant for

“[m]isconduct of the jury, prosecuting attorney, or the witness for the state” that

materially affects the defendant’s substantial rights. “The decision to grant or deny

a motion for a new trial is within the sound discretion of the trial court and, absent

an abuse of discretion, that decision will not be disturbed.” McMahan at ¶ 6, citing

State v. Hawkins, 

, 

 (1993). The term abuse

of discretion implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 

, 

(1983); Johnson v. Abdullah, 

, 

, 

.

               We decline to find that an isolated comment at issue here

substantially violated Johnson’s rights. The comment was immediately stricken

from the record, and the trial court issued a curative instruction to the jury to

disregard the comment. If an error occurs, such as the jury hearing improper

testimony, the “‘jury is presumed to follow the instructions, including curative

instructions, given it by a trial judge.’” State v. D.H., 10th Dist. Franklin No. 16AP-
501, 

, quoting State v. Garner, 

, 

 (1995). Nothing in the record indicates that the jury did not follow the trial

court’s instruction to disregard Gonzalez’s statement.

               Further, we note that while Gonzalez’s statement at least implicitly

connected Johnson to another crime — attempting to break into another store — her

testimony did not directly state that Johnson attempted to break into the store.

               Viewing the detective’s comments in the context of the trial as a

whole, we cannot conclude that the comments, which were followed by a curative

instruction, substantially affected Johnson’s rights so as to require a new trial.

Given the nature of the comments and the trial court’s curative instruction, the trial

court’s denial of Johnson’s motion for a new trial was not unreasonable, arbitrary,

or unconscionable. Therefore, we cannot conclude that the trial court’s denial of

Johnson’s motion for a new trial was an abuse of discretion. Johnson’s first

assignment of error is overruled.

II. Closing Arguments

               In Johnson’s second assignment of error, he argues that the state’s

improper comments during closing argument deprived Johnson of a fair trial.

Specifically, Johnson takes issue with the assistant prosecuting attorney’s

statement: “There’s nobody else sitting at that table except that individual,” referring

to Johnson at the defense table. Johnson argues that this statement somehow

deprived him of a fair trial by contravening the presumption of innocence. We

disagree.
               A prosecutor has considerable latitude during closing argument.

State v. Hunt, 8th Dist. Cuyahoga No. 111892, 

, quoting State

v. Powell, 

, 

, 

, ¶ 149. The test for

prosecutorial misconduct in closing argument is “‘“whether the remarks were

improper and, if so, whether they prejudicially affected substantial rights of the

defendant.”’” State v. Lee, 

, 

, ¶ 36 (8th Dist.), quoting

State v. Hessler, 

, 

 (2000), quoting State v.

Smith, 

, 

 (1984). It is improper for an attorney

to express his personal belief or opinion as to the credibility of a witness or as to the

guilt of the accused. 

. Further, prejudice is shown when there is a

reasonable probability that but for the improper remark by the prosecutor, the result

of the trial would have been different. Hunt at ¶ 46, citing State v. Stevens, 3d. Dist.

Allen No. 1-14-58, 

, 

, ¶ 53.

               We acknowledge that the presumption of innocence in favor of the

accused is a basic and fundamental component of a fair trial and “it is our duty to be

alert to factors that undermine fairness in the fact-finding process and dilute the

right to this presumption. State v. Montgomery, 

, 2022-Ohio-

2211, 

, citing State v. Lane, 

, 

(1979).

               Viewing the remark in question in the context of the state’s closing

argument as a whole, it is clear that the remark did not somehow dilute Johnson’s

right to be presumed innocent.        The primary issue throughout the jury trial,
according to Johnson, was the identity of the suspect. During defense counsel’s

closing argument, counsel alluded to other individuals who may have been

connected to the incident. In response, the assistant prosecuting attorney reiterated

the evidence that connected Johnson to the incident and attempted to compare this

evidence to the evidence against hypothetical other suspects. Further, viewing the

remark in question in the context of the entire trial, it is even more clear that the

remark was not improper and, but for the remark, the result of the trial would not

have been different. Therefore, Johnson’s second assignment of error is overruled.

III. Ineffective Assistance of Counsel

               In Johnson’s third assignment of error, he argues that his counsel was

ineffective for failing to object to the state’s improper comments during closing

argument, specifically referring to the comment discussed in our analysis of

Johnson’s second assignment of error.

               To show ineffective assistance of counsel, a defendant must

demonstrate counsel’s performance was both below an objective standard of

reasonable representation and that he suffered prejudice by counsel’s deficient

performance. State v. McGee, 8th Dist. Cuyahoga Nos. 110980 and 110981, 2022-

Ohio-2045, ¶ 32, citing State v. Drummond, 

, 

,

, ¶ 205, citing Strickland v. Washington, 

, 

, 

 (1984). Prejudice can be established when a defendant shows

“‘a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceedings would have been different.’” 

 quoting 

. “‘A
reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” 

 Where a defendant fails to prove either prong of the Strickland test,

it is unnecessary for a court to consider the other prong. State v. Madrigal, 

, 

 (2000), citing 

.

                   As we have determined in our resolution of Johnson’s second

assignment of error, the assistant prosecuting attorney’s remarks during closing

arguments were not improper.           Therefore, we cannot conclude that defense

counsel’s decision not to object to the remarks fell below an objective standard of

reasonableness so as to be deficient. Because Johnson cannot satisfy the first prong

of the Strickland test, he is unable to establish that he received ineffective assistance

of counsel. Johnson’s third assignment of error is therefore overruled.

VI. Cumulative Error

                   In Johnson’s fourth assignment of error, he argues that cumulative

error deprived him of a fair trial. Specifically, he argues that even if the mention of

impermissible other-acts evidence and the state’s allegedly improper comments do

not, on their own, amount to reversible error, their cumulative effect deprived him

of a fair trial.

                   Under the cumulative error doctrine, a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial even

though each of the numerous instances of trial court error does not individually

constitute cause for reversal. State v. Castellon, 8th Dist. Cuyahoga No. 106813,

, citing State v. DeMarco, 

, 

 (1987). To find cumulative error, we must first find that there were

multiple errors committed at trial, and secondly, we must conclude that a reasonable

probability exists that the outcome of the trial would have been different but for the

combination of harmless errors. 

 citing Madrigal, 

, 

 (2000).

              Here, we have not found that any errors occurred at trial. Therefore,

we cannot conclude that cumulative error deprived Johnson of a fair trial. Johnson’s

fourth assignment of error is overruled.

V. Sufficiency of the Evidence

              In Johnson’s fifth assignment of error, he argues that his convictions

were not supported by sufficient evidence. Specifically, Johnson argues that in both

cases, the state’s case depended on the fact that law enforcement determined that

he owned clothing similar to the outfit worn by the suspect in both incidents, despite

the fact that several witnesses testified that the clothing was not unique. Johnson

also argues that while his DNA was found in a black Chrysler Sebring, the state did

not conclusively prove that this was the getaway vehicle used in either incident.

              A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state has met its burden of production at

trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 

, citing

State v. Thompkins, 

, 

 (1997). Whether the

evidence is legally sufficient to support a verdict is a question of law. 

. We must determine “‘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. Leonard, 

, 

, 

, ¶ 77, quoting State v. Jenks, 

, 

 (1991), paragraph two of the syllabus. We do not

assess whether the state’s evidence is to be believed; we assess whether the evidence

admitted at trial, if believed, supported the adjudication. 

 (Cook,

J., concurring).

               In other words, we assume the state’s witnesses testified truthfully

and determine whether that testimony, along with any other evidence presented,

satisfies each element of the offense. In re D.R.S., 8th Dist. Cuyahoga No. 103584,

. The elements of an offense may be proven by direct evidence,

circumstantial evidence, or both. See, e.g., State v. Wells, 8th Dist. Cuyahoga No.

109787, 

, citing State v. Durr, 

, 

 (1991). “Direct evidence exists when ‘a witness testifies about a matter within

the witness’s personal knowledge such that the trier of fact is not required to draw

an inference from the evidence to the proposition that it is offered to establish.’”

Wells at ¶ 25, quoting State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-

4047, ¶ 13. Circumstantial evidence is “evidence that requires ‘the drawing of

inferences that are reasonably permitted by the evidence.’” Wells at ¶ 25, quoting

Cassano at ¶ 13; see also State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-

Ohio-3683, ¶ 37 (“[C]ircumstantial evidence is the proof of facts by direct evidence

from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind.”). Circumstantial evidence

and direct evidence have “equal evidentiary value.” Wells at ¶ 26, citing State v.

Santiago, 8th Dist. Cuyahoga No. 95333, 

, ¶ 12.

              As an initial matter, the question of whether a Puma Ferrari jacket is

distinct or not has little to no bearing on the sufficiency of the evidence.

Furthermore, Johnson’s arguments that the only evidence tying him to the incidents

was the clothing found in his apartment and the DNA found in the Chrysler Sebring

is not an accurate representation of the evidence presented at trial. At least with

respect to the T-Mobile robbery, it ignores perhaps the strongest link between

Johnson and the incident: the fact that T-Mobile’s tracking device was found in the

driveway of Johnson’s house. While it is true that there was not an eyewitness at

either incident who was able to identify Johnson at trial, due to the fact that the

suspect’s face was covered during the robberies, there is ample direct and

circumstantial evidence to conclude that Johnson was the suspect in both cases.

Therefore, Johnson’s convictions were supported by sufficient evidence. Johnson’s

fifth assignment of error is overruled.

VI. Manifest Weight of the Evidence

              In Johnson’s sixth assignment of error, he argues that his convictions

were against the manifest weight of the evidence. While Johnson’s brief contains

the appropriate standard for evaluating whether a conviction is against the manifest

weight of the evidence, he does not point to anything in the record specifically

relating to his own convictions. App.R. 12(A)(2) provides that the court may
disregard an assignment of error presented for review if the party raising it fails to

identify in the record the error on which the assignment of error is based, or fails to

argue that assignment separately in the brief, as required under App.R. 16(A). In

light of Johnson’s failure to provide a separate argument in support of his sixth

assignment of error, and pursuant to App.R. 12(A)(2), we decline to address

Johnson’s sixth assignment of error.

               Judgment affirmed.

      It is ordered that appellee recover from appellant 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.



MARY EILEEN KILBANE, JUDGE

MICHELLE J. SHEEHAN, P.J., and
EMANUELLA D. GROVES, J., CONCUR