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State v. Prescott

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
TYJOHN PRESCOTT, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-620732-B and CR-17-622725-B

         JUDGMENT: AFFIRMED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brian Lynch and Eleina Thomas, Assistant Prosecuting Attorneys, for appellee.

          Charles Ruiz-Bueno Co., L.PA., and J. Charles Ruiz-Bueno, for appellant. LARRY A JONES, SR., PJ.:

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., PRESIDING JUDGE.

         {¶ 1} Defendant-appellant, Tyjohn Prescott ("Prescott"), appeals his multiple convictions stemming from his participation in eight separate robberies. Finding no merit to the appeal, we affirm.

         {¶ 2} The state alleged that during July and August 2017, Prescott, who was 19 years old and approximately six feet tall, used his girlfriend's distinctive car to commit eight aggravated robberies in the cities of Cleveland and Solon. Prescott was charged in Cuyahoga C.P. No. CR-17-620732-B with one count each of aggravated robbery, robbery, and kidnapping. All counts contained one- and three-year firearm specifications. He was also charged in Cuyahoga C.P. No. CR-17-622725-B with 13 counts of aggravated robbery and 13 counts of kidnapping, both with one- and three-year firearm specifications; three counts of receiving stolen property; one count of failure to comply; two counts of felonious assault; one count of grand theft with one-and three-year firearm specifications; and six counts of having weapons while under disability.

         {¶ 3} Prior to trial, the state dismissed the having weapons while under disability counts. The matter proceeded to a single jury trial on both cases, at which the following pertinent evidence was presented. All events took place in the city of Cleveland, unless otherwise noted.

         Robbery 1

         {¶ 4} On July 2, 2017, at 10:20 p.m., Nidal Rashid ("Nidal") was walking from Edison's Pizza to his friend's house in Tremont. Nidal testified that three black males approached him in a car. Two of the males got out of the car and pointed guns at his face. One of the males stood in front of him, and the other stood behind him. The males told Nidal to "stay cool, and nothing is gunna happen," but Nidal resisted, telling the men to shoot him because they were not going to rob him. One of the males grabbed Nidal by his shirt and ripped it. The men then returned to their vehicle and left.

         {¶ 5} Nidal described the male who stood in front of him as a bit taller than 5'11", 18 or 19 years old, a black male with a well-trimmed beard holding a silver plated gun. Nidal described the second gunman as much taller and thinner and testified that this male had his face partially covered with a bandana. The second man's gun was dark colored and bigger. Nidal described the gunmen's car as a black or dark car that looked like a Chevy Cavalier. Prescott's girlfriend, Cee Asia Emphrey ("Emphrey"), testified that she loaned her car to Prescott on July 2. Prescott had two friends with him. Emphrey testified that she owned a blue Pontiac with a white passenger door and that Prescott is the only other person who drives her car.

         {¶ 6} As part of their investigation, police used cell phone tracking technology. Todd Wiles ("Wiles"), a crime analyst with the Cleveland police, testified how investigators are able to pinpoint the general area of a cell phone, and thus its user, by utilizing call records and cell phone tower information. When the user makes a phone call, Wiles explained, the cell phone pings to a certain tower in the user's given area, meaning that at the time of the call, the caller was in the area of that tower's geographical location.

         {¶ 7} Wiles compiled the information received from the cell towers and Prescott's cell phone records to map out the specific calls made in the area of the cell phone towers during the time frame of the eight robberies. Phone records from Robbery 1 show that Prescott's cell phone pinged a cell phone tower just east of Tremont at 10:13 p.m., about seven minutes before the robbery occurred.

         Robbery 2

         {¶ 8} The same evening, around 11:30 p.m., two teenage brothers were walking home from a relative's house. The brothers were walking by their high school, near West 57th Street and Bridge Avenue, when three men got out of a car and pointed guns at their heads. The men ordered the brothers on the ground, demanded their money, and said not to look at them. The men said they would shoot the brothers if they did not comply.

         {¶ 9} Once they were on the ground, the men ordered the brothers to take off their shoes and empty their pockets. One of the gunmen pressed his gun to the older brother's head and took his cell phone.

         {¶ 10} The brothers described the gunmen as African American males in their teens or twewnties. The older brother testified that one of the gunmen wore a black Adidas hooded jacket with three white stripes down the arm. The police later found a jacket matching that description in Prescott's house. During trial, the older brother identified that jacket as the jacket one of the gunmen was wearing during the robbery.

         {¶ 11} After the robbery, the men got back into their car and sped away. The older brother described the car as a dark color Mitsubishi with a white passenger door. During trial, he identified Emphrey's car as the car the gunmen were driving. He made his identification from still shots recovered from a security camera at the high school. The younger brother described the car as a "little" black or blue car with a white passenger door.

         {¶ 12} Cell phone records showed that Prescott's cell phone pinged the tower at 1795 West 25th Street at 11:23 p.m., seven minutes before, and near where the brothers were robbed. The state alleged that Prescott and his friends left Tremont after the unsuccessful robbery of Nidal and traveled west toward the area where they encountered the brothers. Prescott's cell phone was inactive during Robbery 2.

         Robbery 3

         {¶ 13} On July 9, 2017, around 10:00 p.m., three friends - Brandon, Angela, and Alexandria - were walking in the area of West 80th Street and Lake Avenue when three males approached them and told them that they were being robbed. One of the gunmen stuck his gun in Brandon's face. Brandon said "no," and another gunman punched him in the face. Alexandria screamed, and the men fled.

         {¶ 14} During the robbery, the men took Alexandria's and Angela's purses, which contained their iPhones, credit cards, and identification. The men also tried to steal Brandon's camera, but were unsuccessful.

         {¶ 15} The victims described their attackers as young black males who wore hoodies pulled down and scrunched around their faces. They described one male as tall and skinny and said that he was the one who pointed a gun in their faces. Brandon described the car the males were driving as a Chrysler with an "off color door," and said that it was "similar to like a Mercury Sable or Dodge Neon kind of shape, which is the same as that Chrysler boxy bend end with a swoop nose." Angela said the car was a bluish-green color sedan with a white door. Alexandria said the car was dark, "maybe teal," and it had a white door. During trial, all three victims positively identified Emphrey's car as the vehicle used in the robbery from the still shots taken from the surveillance video in Robbery 2.

         {¶ 16} Emphrey confirmed that Prescott and his friend, Roemale Brooks, used her car that night between 10:00 p.m. and 11:00 p.m.

         {¶ 17} Cell phone records from that day show that Prescott's phone pinged near East 90th Street at 9:19 p.m., and then at 3560 East 55th Street at 11:33 p.m. Prescott's phone remained inactive between 9:21 p.m. and 11:33 p.m., during the time of the robbery.

         {¶ 18} During their investigation, the police determined that Prescott was selling cell phones to "ECOATMs" at area Wal-Mart stores. An ECOATM is an automated kiosk that buys cell phones. When a user sells a cell phone to an ECOATM, the machine produces a secondhand dealer report that contains the date and time that the device was sold; the seller's name, date of birth, and address; the location of sale; the type and serial number of the device; an image of the seller's driver's license; and a picture of the seller at the kiosk. In order to complete a sale, the seller must insert his or her identification card, which the machine scans.

         {¶ 19} ECOATM records show that Prescott sold Alexandria's cell phone at an ECOATM kiosk on July 12, 2017, three days after the robbery. Prescott received $5 for the phone. Prescott used his driver's license, and the kiosk's webcam image showed Prescott making the transaction. During trial, Alexandria was able to identify her cell phone from the ECOATM secondhand dealer report.

         Robbery 4

         {¶ 20} On July 10, 2017, at 12:30 a.m., a young couple, Jessica and Eric, were saying goodnight to each other in Eric's apartment parking lot on Clinton Avenue in Ohio City. Jessica was seated in her car and Eric was standing outside the car. A young man approached the couple holding a gun that was either silver or cobalt gray. The man, described by Jessica as about 6 feet tall, pointed the gun at Eric's chest and threatened to shoot him. Another man, whom Jessica testified was shorter, entered the passenger side of Jessica's car and ripped Jessica's purse out of her hands, breaking the strap. Jessica's purse contained $200, credit cards, and her driver's license. Eric and Jessica described the men as young black males in their early twenties. Eric, who is 5'8" tall, said the man who held the gun against him was a few inches taller than he is.

         {¶ 21} Eric pursued the males to see where they were headed, and saw them enter a black four-door sedan with a white passenger side door. Surveillance footage of the area captured the robbery. Emphrey later confirmed that she told the police that it was her car on the surveillance footage and that she did not have her car at that time.

         {¶ 22} Eric was shown four different photo lineups, during which he identified four different suspects. He testified, however, that there were only two males who committed the robbery. Eric identified Emphrey's car as the car used in the robbery using the still shots from the surveillance video in Robbery 2.

         {¶ 23} Cell phone records showed that on July 10, 2017, at 12:10 a.m., Prescott's cell phone pinged at East 178th Street and St. Clair Avenue. At 12:12 a.m., Prescott's cell phone pinged in the area of Interstate 90, which, the state alleged, indicated movement toward Ohio City where Eric and Jessica were robbed. Prescott's phone did not ping again until 3:38 a.m. - his phone was inactive during the time the robbery occurred.

         Robbery 5

         {¶ 24} On July 10, 2017, around 11:00 p.m., a young couple, Zoe and Liam, were walking back to their car after stargazing in the Cleveland Metroparks on Cleveland's west side. They saw four men in a gray sedan with a white passenger door drive past them. The car turned around and pulled over on the side of the road. One man got out and claimed their car had broken down. Another man jumped out, said he had to use the bathroom, and pulled out a gun. He told the couple to drop their stuff. One of the men took Zoe's purse, which contained a phone charger, headphones, wallet, debit cards, identification, and cell phone. The men also took Liam's iPhone.

         {¶ 25} Zoe testified that one of the robbers had a "black Glock," was six feet tall, in his early to mid-twenties, had a lean build, and wore a striped T-shirt. She testified that the other gunman was "maybe one or two inches shorter." During trial, Zoe positively identified Emphrey's car as the car the gunmen were driving, using the same still shots from Robbery 2.

         {¶ 26} Cell phone records indicated that Prescott's cell phone pinged on the east side of Cleveland around 8:30 p.m. and traveled west, going from East 74th Street and Carnegie Avenue (8:26 p.m.) to West 115th Street and Detroit Avenue (10:11 p.m.), to West 146th Street and Detroit Avenue (10:33 p.m.), to 15555 Hilliard Road (10:34 p.m.). At 10:39 p.m., Prescott's cellphone pinged on Hilliard Road, near the area of the Metroparks where the 11:00 p.m. robbery occurred.

         {¶ 27} At 11:15 p.m., Prescott's cell phone pinged back on the east side of Cleveland, at East 93rd Street and Kinsman Avenue. Liam's cell phone tracking system showed his phone was in the area of East 73rd Street and Kinsman Avenue after it was stolen.

         {¶ 28} ECOATM records show that Prescott sold Liam's cell phone at the South Euclid Wal-Mart the next day, July 11, 2017. Prescott used his driver's license to effectuate the transaction, and ...


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