from the Franklin County Court of Common Pleas (C.P.C. No.
O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee. Argued: Sheryl L. Prichard.
Timothy Young, Ohio Public Defender, and Terrence K. Scott,
Terrence K. Scott.
1} Defendant-appellant, Clifford Young, Jr., appeals
from a December 18, 2015 judgment of the Franklin County
Court of Common Pleas finding him guilty of aggravated
robbery with a firearm specification, robbery with a firearm
specification, felonious assault with a firearm
specification, and having weapons while under disability
("WUD"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
2} On December 4, 2013, appellant was indicted for
aggravated robbery with a firearm specification (Count 1 of
the indictment), robbery with a firearm specification (Count
2 of the indictment), robbery with a firearm specification
(Count 3 of the indictment), felonious assault with a firearm
specification (Count 4 of the indictment), and having weapons
while under a disability (Count 5 of the indictment). (Dec.
4, 2013, Indictment.)
3} The case proceeded to trial in September 2015.
However, the jury was unable to reach a verdict and the trial
court declared a mistrial. (Sept. 14, 2015 Entry.) On
November 9, 2015, a second trial commenced. As pertinent to
this appeal, the facts are as follows. The victim, B.B.,
testified that she worked as a prostitute. Periodically, she
would come from Lorain County to the Columbus area and rent a
hotel room for up to one week to provide sex services. In
January 2013, B.B. rented a room for a one-week stay at the
Red Roof Inn on Brice Road in Reynoldsburg. During the early
morning hours of January 11, 2013, B.B. was renting room 231
when she received a call from a person she believed to be a
black male inquiring about her services. The two exchanged
five phone calls between 1:38 a.m. and 2:22 a.m. Eventually,
a black man arrived at her hotel room that she had never seen
before and whose voice sounded like the man that called her.
She identified appellant as the man who called her and as her
4} B.B. testified regarding the altercation as
follows. Appellant entered the room and looked around to
ensure no one else was in the room. He asked for a cigarette
and she gave him one. Appellant pulled out a gun and ordered
her to give him her money. He cocked the gun and, when she
realized he was serious, she grabbed the gun from him and
went into the fetal position with the gun underneath her arm.
Appellant then got on top of her and began punching her. She
attempted to pull the trigger of the gun but it did not fire.
Appellant hit and bit her, broke some of her fingernails, and
tried to burn her in the face or eyes with the cigarette, but
she was able to block it between her shoulder, chin, and
neck. At this point, appellant was able to gain control of
the gun and he used it to strike B.B. repeatedly, even after
she begged for him to stop. B.B. told appellant where the
money was located and he took $811, her cellphone, and a
computer. He left the room for a short time and returned to
take additional items. Eventually he left for good and B.B.
called the Columbus Police Department for help at 2:32 a.m.
5} The police and emergency squad arrived and she
was taken to Grant Hospital. B.B. suffered numerous
lacerations, a broken nose, a bite mark on her right arm, and
a cigarette burn. She required stitches, plastic surgery, and
had a metal pin placed in her finger. B.B. was released from
the hospital on the evening of January 12, 2013 with a
discharge diagnosis of a concussion, nasal fracture, a closed
fracture of the distal phalanx of the finger, and facial
6} Columbus Police Officer Ryan Van Fossan testified
that he was dispatched to the scene at 2:32 a.m. When he
arrived B.B. was covered in blood and he did not observe any
indications that she was under the influence of drugs or
alcohol. B.B. described her assailant as a black male
weighing approximately 250 pounds. Detective Kevin Jackson
investigated the crime scene and noted blood splatter on the
mirror. The detective also did not see any evidence of
illegal drug use or drug paraphernalia in the room.
7} Columbus Police Department investigators swabbed
the hotel room telephone, collected fingernail tips and a
partial cigarette butt, and submitted a DNA test request for
the same. The telephone swab DNA was consistent with B.B.
(State's Ex. E5.) DNA from the fingernail tips matched
B.B. and at least one other person, however, the appellant
was excluded as a contributor. (State's Ex. E5.) DNA from
the cigarette butt matched appellant. (State's Ex. E2.)
8} On October 27, 2013, Detective Jason Wood acted
as a blind administrator in showing a photo lineup to B.B. As
such, he did not know which of the six black males pictured
was the suspect. B.B., as well did not know which of the men
pictured, if any, had been identified as a suspect. At this
time, she did not know appellant's name, nor that his DNA
had been matched to the cigarette.
9} When Detective Wood administered the photo
lineup, he did not realize that two of the photos, Nos. 4 and
6, were the same person, albeit different photos.
Appellant's photo, No. 3, was only featured once. The
detective testified that placing two of the same people in
the lineup was a mistake that should have been caught by the
computer system that generates the photo arrays. He also
testified that he could not tell that they were the same
person by looking at the array. B.B. never considered the
photos in position Nos. 4 or 6 as possibilities to be the
perpetrator. She focused on photos of two others, Nos. 2 and
3. B.B. told police she was 95 percent sure that No. 3, who
was appellant, was the perpetrator. She noted that appellant
looked heavier in the photo than he did when she saw him.
10} B.B. also told investigators that the
perpetrator had called her from a phone number starting with
614-44. Because her cellphone was stolen in the robbery, she
could not look at it to find the remaining 4 numbers.
Detective James Howe presented testimony derived from
unauthenticated AT&T cellphone records. The state did not
seek to introduce the AT&T records themselves but,
rather, the analysis of information received from AT&T by
way of Detective Howe's "Cellular Review."
(State's Ex. I.) Detective Howe was admitted as an expert
in the field of cellular phones, forensics, and analysis,
without objection. Trial counsel did not object to the
introduction of the records, or Detective Howe's Cellular
Review, i.e., State's Ex. I.
11} Detective Howe described that a court order for
B.B.'s cellphone records was obtained and, once received,
he analyzed the records, as well as the area, and prepared a
report. The information from B.B.'s cellphone records
demonstrated that B.B. did receive several calls from a
number starting 614-44, specifically 614-441-2949
("target number"), just as she had told detectives.
Detective Howe's Cellular Report stated that during the
date and time of the incident the target phone accessed
AT&T towers which were in the vicinity of the crime scene
and there were five contacts between the target phone and
B.B.'s phone between 1:38 a.m. and 2:22 a.m. on January
12} The state readily admitted throughout the trial,
starting with opening statements, that the AT&T records
did not connect appellant to this phone, i.e., nothing in the
AT&T records named appellant as a liable party or user of
the phone. Detective Howe testified that the AT&T records
showed the liable party as AT&T with a Georgia address
and the user as AT&T with a Morse Road, Columbus, Ohio
address. However, as stated above, B.B.'s testimony
linked that phone number to appellant.
13} Appellant agreed to the admission of the cell
phone analysis without objection initially but later asked
the court to clarify for the jury that the phone was never
linked by the AT&T records to appellant. The judge gave
that following clarifying instruction to the jury:
Before we get to closing arguments there's just two sort
of a limiting instruction that I just want to state to you as
you are, again, considering closing arguments and ultimately
evaluating the evidence.
You saw testimony regarding the cellular phone. In the
evidence it is indicated suspect phone. Okay. Suspect phone
refers to the phone number which was received by [B.B.].
You also saw testimony regarding suspect home. Suspect home
refers to the home of the defendant and there's not that
the suspect home and suspect phone are connected, okay?