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