[Cite as State v. Jones, 2017-Ohio-385.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104349




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           JIHARD JONES
                                                      DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART, REVERSED IN PART
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-599537-A

        BEFORE: Keough, A.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED: February 2, 2017
ATTORNEY FOR APPELLANT

Christopher M. Kelley
75 Public Square, Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Mary M. Dyczek
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

       {¶1} Defendant-appellant, Jihard Jones (“Jones”), appeals his convictions. For

the reasons that follow, we affirm Jones’s convictions, but vacate his sentence and

remand for resentencing.

       {¶2} In October 2015, Jones was named in a seven-count indictment charging him

with two counts of aggravated robbery, two counts of having weapons under disability,

and one count each of felonious assault, kidnapping, discharge of a firearm on or near

prohibited premises, and improper handling of a firearm. The counts contained various

specifications, including one-, three-, five-, and six-year firearm specifications, repeat

violent offender specifications,    and forfeiture specifications.    The indictment also

requested forfeiture of the weapon. Jones waived his right to a jury trial, and the case

proceeded before the bench where the following evidence was presented.

       {¶3} On July 19, 2015, after a night of drinking with his girlfriend, Jones drove his

girlfriend’s car to the corner of West 45th Street and Detroit Avenue, where he

encountered Tameka Braggs (“Braggs”), a known transgender prostitute.                 After

confirming Braggs’s identity as “Cinnamon,” the two negotiated a price for Braggs to

perform oral sex on Jones. Once the price of $20 or $25 was confirmed — a discount

according to Braggs because she found Jones attractive — Braggs got into the passenger

seat of Jones’s car and they drove to a nearby alley.

       {¶4} Upon receiving payment, Braggs began performing fellatio on Jones.

According to Braggs, during the middle of the encounter, she confirmed with Jones that
because he knew her as “Cinnamon,” he must know that she has male genitalia. Braggs

testified that Jones stated that he “should punch her” for disclosing this detail during the

act. Nevertheless, Jones allowed Braggs to complete the encounter. Afterward, Jones

discarded the used condom and an antibacterial wipe out of the car window. Instead of

taking Braggs back to her original location as she requested, Jones pulled a handgun from

his left side, pointed it at Braggs, and demanded she return the money he had paid her.

Braggs testified that she feared for her life and felt unable to leave the vehicle.

       {¶5} However, being 5’ 11” and about 245 pounds, Braggs tussled with Jones over

the gun, ultimately gaining control and possession of the firearm. Braggs testified that

the gun went off during the struggle. In a means to escape, she took Jones’s cell phone

and fled the vehicle. To distract Jones, who was chasing her, Braggs threw the cell

phone on the ground. Jones retrieved the phone, but continued to chase Braggs yelling

that the gun belonged to his girlfriend.

       {¶6} Jones eventually caught up to Braggs, and they argued and struggled over the

gun. According to Braggs, she was afraid that if she returned the gun, Jones would shoot

her. During the chase and struggle, Braggs was able to call 911. During the call,

Braggs told dispatch that someone had tried to rob her, but she was able to take the gun

from the man. The recording was played in open court, and it can be heard that a male is

arguing with Braggs about the firearm. Braggs then tells dispatch that the male assaulted

her by “socking” her. Braggs repeatedly tells dispatch and the male that he tried to rob

her, and Jones can be heard in the background yelling.
       {¶7} While on the phone with the dispatcher, Braggs observed a sheriff’s vehicle

and was able to flag down the car. According to Braggs, Jones then fled on foot.

Fearing that the police would misperceive the situation, she threw the gun in the grass

nearby, but advised the officer of its presence.

       {¶8} On cross-examination, Braggs admitted that she was unable to identify Jones

from the photo array as the person who tried to rob her. She further admitted that despite

being fearful, she taunted Jones while he was on the phone after the robbery stating that

he should tell his girlfriend that he picked up a transgender woman.

       {¶9} Toni Singleton, Jones’s girlfriend, testified that in the early morning of July

19, 2015, Jones came to her residence and told her someone had taken her gun. She

walked to Detroit Avenue where the police were investigating the robbery in an effort to

retrieve her gun. She admitted that while on scene she did not disclose Jones’s identity.

Singleton testified that she had not told Jones her gun was in her purse, and unless he

opened her purse, Jones would not have known the gun was there. Singleton stated that

the location of her purse, as depicted in the exhibit, was where she left the purse that

evening — on the backseat behind the passenger’s seat.

       {¶10} Detective John Graves testified that he responded to the scene to find

Braggs upset and mad about the incident. He testified that he recovered the firearm from

the grass, and when he unloaded the weapon, he discovered that it had a spent casing in

the chamber that did not eject when it was fired.        Graves testified that it was his

experience that if the slide of the gun does not go all the way back or is covered up, the
casing will stay inside and not kick out even if the gun was fired. After speaking with

Braggs, he searched for evidence in the alley. He located a condom with suspected

semen inside and an antibacterial wipe on the ground in the alley. It was stipulated that

the DNA on the used condom and antibacterial wipe matched both Braggs and Jones.

Graves testified that Singleton arrived on scene crying and requested the return of her

firearm. She told him that the male she was seeing told her that “he had done something

stupid.” (Tr. 154.)

       {¶11} Detective Virgil Williams testified that he was assigned to investigate the

incident involving Braggs and Jones. He stated that Singleton was called into the station

and identified Jones as the suspect in the aggravated robbery. Additionally, Detective

Williams confirmed that no DNA or fingerprint tests were performed on the firearm; it

was tested only for operability.

       {¶12} Following the state’s case, the state dismissed the five-year firearm

specification in Counts 1 through 5 and dismissed the six-year firearm specification in

Count 5. Based on Jones’s arguments in support of his Crim.R. 29 motion for judgment

of acquittal, the trial court amended Count 3, felonious assault, to misdemeanor assault, a

violation of R.C. 2903.13(A)(1).

       {¶13} The court found Jones not guilty of discharge of a firearm as charged in

Count 5. However, it found Jones guilty of both counts of aggravated robbery, assault,

kidnapping, improper handling of a firearm in a motor vehicle, and both counts of having
a weapon while under disability.       Additionally, the court found Jones guilty of the

remaining specifications attendant to each count.

         {¶14} The court imposed a three-year sentence on both counts of aggravated

robbery and kidnapping, 180 days for the assault conviction, 24 months on each count of

having weapons under disability, and 12 months for improper handling of a firearm in a

motor vehicle. The court ordered the sentences to run concurrent for a total of three

years.    After merging all the firearm specifications into a single three-year firearm

specification, the court ordered Jones to serve the specification prior to and consecutive to

the three-year base sentence on the aggravated robbery charge in Count 1, for a total

prison sentence of six years. Despite the trial court subsequently finding that the two

counts of aggravated robbery merge, the court imposed a sentence on each count.

         {¶15} Jones now appeals, raising three assignments of error, which will be

addressed together where appropriate.

                            I. Manifest Weight of the Evidence

         {¶16} In his first assignment of error, Jones contends that his convictions for

aggravated robbery, kidnapping, assault, improper handling of a firearm in a motor

vehicle, and having weapons under disability are against the manifest weight of the

evidence.

         {¶17} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598, ¶ 12.         A reviewing court “weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Thompkins, 78 Ohio St. 3d 380, 388, 678 N.E.2d 541 (1997). A

conviction should be reversed as against the manifest weight of the evidence only in the

most “exceptional case in which the evidence weighs heavily against the conviction.” Id.

       {¶18} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and

the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist.

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St. 2d 230,

227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.”       State v. Wilson, 113 Ohio St. 3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The court may take note of any inconsistencies

and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.”

State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶19} Jones contends that his convictions are against the manifest weight of the

evidence because Braggs was inconsistent with the details surrounding the encounter;

specifically, how much she was paid, whether the gun actually discharged during the

struggle, and if she was assaulted. Furthermore, Jones contends Braggs was not credible
because she did not identify him from a photo array, and despite having an income, she

does not file taxes and receives food stamps and Medicaid. These points were made

during Jones’s closing argument.

      {¶20} In announcing the verdict, the trial court stated it considered all of these

arguments, and addressed the inconsistencies in Braggs’s testimony.             The court

ultimately concluded that despite Braggs’s lifestyle and dishonesty in carrying out that

lifestyle, it found Braggs credible regarding the events that occurred during the early

morning of July 19, 2015.

      {¶21} The record is clear that Braggs did not bring the firearm to the encounter. It

is undisputed that the firearm involved belonged to Jones’s girlfriend, who kept the gun in

her purse.   Singleton testified that she left her purse on the back seat behind the

passenger seat. The court, in considering who could access the firearm in the backseat,

concluded that based on Braggs’s size, the compact-nature of the car, and the purse

location, only Jones would be able to access the inside of the purse and retrieve the gun.

Additionally, because the gun belonged to his girlfriend and he knew she carried a gun in

her purse, the court found it reasonable to infer that Jones accessed the gun. Based on

the evidence, these inferences are not unreasonable.

      {¶22} Jones also claims Braggs was not credible because she testified that the

police recovered a shell casing, but in fact no casing was found. This inconsistency is

insufficient to reverse Jones’s convictions. Moreover, Detective Graves discovered a

spent casing jammed inside the gun; however, he could not state when the gun was fired.
Thus, the court noted that it was possible that the gun did in fact go off, but the evidence

was insufficient to prove that Jones discharged the firearm.

       {¶23} Additionally, based on the DNA and direct evidence, it is undisputed that a

paid-for sexual encounter occurred between Braggs and Jones. Therefore, there is no

issue about identity, and the fact that Braggs was unable to pick Jones out of a photo array

prior to trial is irrelevant. Moreover, regardless of how much Jones paid Braggs, money

was exchanged.

       {¶24} Finally, Jones claims that Braggs’s subsequent taunting demonstrates that

she was not fearful and is inconsistent with that of someone who had just been robbed.

However, it is reasonable to conclude that Braggs’s fear turned to anger once she

managed to gain control over the gun and have it in her possession.

       {¶25} This is not the exceptional case where the evidence weighs heavily against

Jones’s convictions. Accordingly, the trial court did not lose its way in finding Jones

guilty of these offenses. Jones’s first assignment of error is overruled.

                                    II. Allied Offenses

       {¶26} In his second assignment of error, Jones contends that the trial court erred in

failing to merge his convictions of aggravated robbery in Counts 1 and 2, and kidnapping

in Count 4. In his third assignment of error, Jones contends that the trial court erred in

finding that the aggravated robbery offenses set forth in Counts 1 and 2 were allied

offenses but then sentencing him on each separate offense. The state concedes these
errors, stating that Jones’s “convictions for the two counts of aggravated robbery and the

one count of kidnapping should have merged for the purposes of sentencing.”

       {¶27} Accordingly, Jones’s second and third assignments of error are sustained.

His sentence is vacated and the case is remanded to the trial court for resentencing for the

court to merge Counts 1, 2, and 4 and allow the state to elect upon which count the court

should impose sentence.

       {¶28} Judgment affirmed in part, reversed in part, and remanded for resentencing.

       It is ordered that the parties share equally the 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. Case remanded to the trial court for

resentencing.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR