State v. Fuller

2020 Ohio 3804

Opinion

[Cite as State v. Fuller, 2020-Ohio-3804.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108915 v. :

TYSEAN FULLER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 23, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628447-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carson Strang, Assistant Prosecuting Attorney, for appellee.

John B. Gibbons, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Tysean Fuller appeals from a judgment of the

Cuyahoga County Court of Common Pleas that convicted him of aggravated robbery

and related offenses after a jury trial. On appeal, his raises a single assignment of error, arguing his convictions are against the manifest weight of the evidence. After

a careful review of the evidence presented at trial, we affirm his convictions.

Background

The undisputed evidence shows that the victim in this case, Osman

Baslamisli (“victim” hereafter), offered a car for sale online. Fuller’s codefendant

Alexander Sewell, age 18 at the time, showed up at a prearranged location and asked

to test drive the vehicle before purchasing it. The victim agreed, but insisted on

riding with Sewell. Sewell drove the vehicle to an area near East 193rd Street and

Abby Avenue in Euclid. A man suddenly appeared with a gun. He pointed the gun

at the victim and ordered him to exit the vehicle. The gunman took off with the

vehicle. Sewell quickly disappeared. The victim went to a nearby business and

called a family member.

While the police were at the scene investigating the incident, the

stolen vehicle emerged nearby. The police pursued the vehicle through Euclid into

Bratenahl, East Cleveland, and Cleveland. During the 30-minute high-speed chase,

the stolen vehicle struck several vehicles on the road. The chase ended when the

stolen vehicle crashed into a Euclid police cruiser near an area where the robbery

took place. Sewell, who was behind the wheel, was taken into custody. The

passenger of the vehicle, Fuller, escaped through the passenger side window and led

the police on a foot chase. He was eventually apprehended by the police, with the

victim’s cell phone on his person. The police found a gun in the passenger seat of

the stolen vehicle. During interviews with the police, Fuller denied he was the gunman.

Sewell, however, cooperated with the police and implicated Fuller. Sewell and Fuller

were subsequently jointly indicted in a 30-count indictment. Both Sewell and Fuller

were indicted for the counts stemming from the carjacking, which included

aggravated robbery, multiple counts of robbery, kidnapping, abduction, grand theft,

and receiving stolen property. Sewell alone was indicted for the counts stemming

from the high-speed chase.

Sewell pleaded guilty to the offenses under a plea agreement and

received a prison term of three years and nine months for his offenses. However, at

trial, Sewell denied Fuller had any role in the carjacking. The state relied mainly on

the text messages exchanged between Fuller and Sewell on the day of the incident

to prove Fuller’s role in the aggravated robbery.

The jury found Fuller guilty of all counts charged in the indictment

and the associated firearm specifications. He was sentenced to ten years in prison

for his offenses.

Appeal

On appeal, Fuller raises a single assignment of error for our review:

The judgment entry of conviction and sentence against defendant- appellant, Tysean Fuller for the separate offenses of aggravated robbery, robbery, kidnapping, abduction, grand theft-motor vehicle, receiving stolen property-motor vehicle, telecommunication fraud, carrying a concealed weapon and improper handling of a firearm in a motor vehicle were all contrary to manifest weight of the evidence. When assessing a challenge of sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines whether such

evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. A manifest weight challenge, on the other

hand, questions whether the state has met its burden of persuasion. State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring).

This challenge raises a question of fact.

“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). The word “manifest” in the standard of review “means that we can only

reverse the trier of fact if its decision is very plainly or obviously contrary to the

evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 2018-Ohio-5031,

¶ 20.

At the jury trial, the state presented testimony from the victim,

codefendant Sewell, seven police officers, a forensic examiner who prepared a cell

phone extraction report in this case, and an analysis from a state investigation agency who prepared an exhibit showing the movement of Fuller’s cell phone on the

day of the incident. The defense did not present witnesses.

Victim’s Testimony

The victim testified that he offered a used Chevrolet Cruze for sale on

the “OfferUp” app. An individual was interested and asked for a test drive. An

arrangement was then made for them to meet at a restaurant owned by the victim’s

family in Mentor in the afternoon of May 19, 2017. A man, later identified as Sewell,

appeared. Sewell asked to test drive and to take the vehicle to a mechanic for an

examination. The victim insisted on driving with Sewell for the trip. Sewell drove

the vehicle to Euclid, all the while texting and talking over the phone. He stopped

at a house and someone from the house came out to look at the vehicle. The victim

became so suspicious by this point that he sent his location to his wife with the

message: “[t]his is my location just in case.” After talking to someone for a few

minutes in front of the house, Sewell said “[w]e can now go to the mechanic.”

As Sewell turned into a street, the victim noticed a man walking on

the sidewalk on the other side of the street. Sewell suddenly drove the car towards

him. The man first went to the driver’s side. Sewell voluntarily opened the door.

The man then leaned in and pointed a gun at the victim. He first demanded the

victim’s phone and took his phone as well as Sewell’s phone. Sewell then exited the

vehicle, and the gunman demanded the victim to get out of the vehicle as well. The

gunman drove off, and Sewell quickly disappeared. The victim walked to a nearby store and contacted a family member,

who arrived at the scene and called the police. While the victim was talking to the

police officers, he suddenly saw his vehicle coming down the street, with two people

inside. The police officers started to chase the stolen vehicle.

The robbery happened so quickly that the victim could not remember

the gunman’s face, but he was able to identify the black and silver gun the state later

retrieved from the stolen vehicle as the gun pointed at him. When the police later

returned his Samsung phone to him, he saw that someone in the name of “GLOTF-

MMG” used his phone to log into that person’s own Instagram account and posted

several pictures of himself.

Testimony of the Police Officers and Cell Phone Analysts

Officer Michael Neibecker testified that he responded to the report

of a carjacking at East 193rd Street and Abby Avenue in Euclid. While he was still

interviewing the victim, the victim saw his stolen Chevy Cruze drive by. Officer

Neibecker jumped into his patrol vehicle and began to pursue it. During the pursuit,

the Chevy Cruze was travelling recklessly, striking five or six vehicles. The pursuit

eventually ended when the Chevy Cruze struck a Euclid police cruiser on East 185th

Street in Euclid. The passenger, later identified as Fuller, fled on foot but was

eventually apprehended. The driver, later identified as Sewell, was removed from

the vehicle by the officers. The dash camera on his police vehicle, which captured

the vehicle pursuit, was played for the jury. Officer James Aoki testified that he participated in the vehicle pursuit

of the stolen vehicle and the pursuit came to an end only after it struck his police

vehicle. The passenger, Fuller, climbed out of the passenger side window and fled

on foot. Officer Aoki chased him and also assisted in apprehending him while he

resisted being arrested. A firearm was found in the passenger side of the vehicle.

Officer Vashon Williams also participated in the pursuit of the

suspect vehicle and assisted in apprehending Fuller. He testified Fuller struggled

with several officers before being handcuffed. Officer Williams found two cell

phones on Fuller’s person, a blue iPhone 5C, which was subsequently determined to

be Fuller’s phone, and a gold Samsung, which belonged to the victim.

Richard Johnson, a forensic examiner of the Westlake Police

Department testified regarding his electronic forensic extraction of text messages

exchanged on the day of the robbery between the blue iPhone found in Fuller’s

person and the rose gold iPhone that belonged to Sewell. The messages were shown

to the jury, and they appeared to reflect the senders of the messages plotting the

robbery together.1

1The following text messages were a portion of the messages between “Alex” — which Fuller had acknowledged to be Sewell’s name in Fuller’s phone — and a phone number ending in 6564, which the police had linked to Fuller’s cell phone:

Alex: We go prolly have to get bitch up threw he tryna hop in with me. Alex: I’m go pull around make him get out *** Alex: U see the hamma? 6564: Yeah Daniel Serwatka, an analyst from Ohio HIDTA (“High Intensity Drug

Trafficking Area”), testified regarding cellular mapping. In this case, he created a

video displaying the cell tower locations associated with the cell phone that the state

alleged to be Fuller’s phone in the afternoon of May 19, 2017. The locations included

a tower near the restaurant where Sewell met with the victim and later a tower in

the area of Abby Avenue and East 193rd Street in Euclid, near where the victim was

robbed.

Detective Kroczak’s Testimony

Detective Jennifer Kroczak of the Euclid Police Department was the

main investigator in this case. She arrived at the scene shortly after the stolen

vehicle crashed. She saw Fuller running away from the police and an officer trying

to subdue Sewell, who was still in the driver’s seat. A loaded gun was in plain sight

6564: Come grab it *** Alex: I’m talking to him still *** Alex: Should I bring him to the hood? 6564: You can or the [C]lair *** Alex: Look just follow me I’m go stop somewhere in the cut you come to my door make me get out take the whip *** Alex: We getting ready to leave now 6564: I’m pulling there now

Detective Kroczak testified that “hamma” refers to a gun and a “whip” is a slang term for a vehicle. Sewell also admitted “hamma” refers to a gun. on the passenger seat. The police also found two cell phones on Fuller when he was

apprehended: a blue iPhone subsequently traced to Fuller (with a phone number

ending in 6564), and a gold Samsung phone belonging to the victim. In the stolen

car, a rose gold iPhone was recovered from the driver’s seat, which was later

confirmed as belonging to Sewell. Also found in the stolen car was a digital scale

and a bag containing marijuana.

Approximately two hours elapsed between the robbery of the victim

and the return of the stolen vehicle to the area where Officer Neibecker was taking a

report from the victim. As Detective Kroczak testified, Fuller’s Instagram account

(“GLOTF-MMG”) had been logged into on the victim’s phone after the robbery and

several photos of Fuller were posted in his account, including a selfie of Fuller

pointing a gun and a picture of him pointing a gun barrel with a caption “We pull up

and hurt shit. I shoot like Steph Curry.” Detective Kroczak also testified that the

OfferUp app in the victim’s cellphone no longer showed the victim being the account

holder in the app; rather, “GLOTF” now showed as the account holder.

Furthermore, the victim’s cell phone showed an inquiry not made by the victim in

the Google search history regarding how to reset a Macbook Pro computer; a

MacBook computer, which did not belong to the victim, was found in the stolen

vehicle.

Detective Kroczak interviewed Fuller twice. Portions of the

interviews were played for the jury as she testified. Fuller stated he lived in

“Grovewood” and admitted Sewell was listed as “Alex” in his phone contacts, but he denied texting Sewell on the day of the robbery. As to the gun found in the passenger

seat of the stolen vehicle, Fuller denied having seen the gun.

Detective Kroczak interviewed Sewell on three occasions. On May 22,

2017, Sewell stated Fuller knew nothing about the robbery and he was selling weed

to Fuller on the day of the incident. Subsequently, on August 24, 2017, she

interviewed Sewell again with Sewell’s attorney and an assistant prosecutor present.

Sewell changed his account and identified Fuller as the gunman. Sewell was

interviewed again on January 9, 2018, also with his attorney and the assistant

prosecutor present. Sewell gave the same account as in the August 24, 2017

interview. (A videotape of the January 9, 2018 interview was played for the jury

during Sewell’s testimony.)

Codefendant Sewell’s Testimony

Sewell testified he was 18 at the time of the robbery. He pleaded

guilty in this case and received a prison term of 3-years and nine months. He

acknowledged he talked to Detective Kroczak about Fuller’s involvement in this case

but claimed his statements to the detective had not been truthful. In a sidebar

discussion, the assistant prosecutor represented to the trial court that Sewell’s denial

regarding Fuller’s involvement came as a complete surprise because he had talked

to Sewell the day before the trial and Sewell’s statements were consistent with his

prior statements to Detective Kroczak, which identified Fuller as the gunman in the

robbery. Over the objection from the defense counsel, the trial court granted the state’s request to declare Sewell as the court’s witness and permitted the state to ask

leading questions.

Sewell was then asked about his prior statements to Detective

Kroczak regarding Fuller’s involvement in the robbery, to which he invariably

replied that he did not remember. He did not remember telling the detective he

knew Fuller as “Mike from Grovewood Park”; “Mike” contacted the victim on the

OffUp app using the name of “Tony”; “Mike” told him to go to Mentor and

introduced himself to the victim as “Anthony”; “Mike” dropped him off in Mentor to

meet the victim; “Mike” communicated with him while he was test-driving the Chevy

Cruze; that “Mike” was the gunman in the robbery but the gun was his (Sewell’s);

and he was supposed to get $200 from Fuller for his part in the robbery. The

prosecutor played a video of Sewell’s interview with Detective Kroczak on January

9, 2018, over the objection of the defense counsel.

Sewell denied he exchanged the text messages with Fuller on the day

of the robbery. When asked with whom he was exchanging the text messages, Sewell

answered “I don’t know. I plead the 5th.” Although Sewell claimed he did not know

the recipient of the text messages, he admitted “he was texting the person who was

going to come out and rob the victim with the gun.” He also admitted he told that

person to take his (Sewell’s) cell phone as well, to make it look like both him (Sewell)

and the victim were robbed. He also admitted planning the robbery before meeting

the victim in Mentor, but insisted he alone planned the robbery. Manifest Weight

Fuller claims his convictions are against the manifest weight of the

evidence. In light of the overwhelming evidence produced by the state supporting

his involvement in the robbery, Fuller maintains that there are no witnesses

identifying him as the individual who robbed the victim at gunpoint, pointing to the

inability of the victim to identify him and the testimony of the state’s key witness,

Sewell, who recanted his previous statements to the police and testified that Fuller

had no involvement in the robbery.

Our review of the evidence presented at trial reflects a thorough and

comprehensive police investigation in this case. While codefendant Sewell denied

Fuller’s role in the robbery at trial and the victim was unable to identify Fuller as the

gunman, the state produced overwhelming evidence to allow the jury to infer that

Fuller was the individual who approached the stolen car and robbed the victim at

gunpoint; most damning were the text messages exchanged between Sewell’s phone

and Fuller’s phone literally revealing the planning and execution of the robbery by

these two men. This evidence reflecting Fuller’s involvement in the robbery is

further corroborated by the cell tower data showing Fuller’s phone traveling from

Mentor to the area where the robbery occurred and by the state’s exhibits showing

Fuller logged into his own Instagram account in the victim’s phone.

Having reviewed the entire record, we cannot conclude that the jury

in this case clearly lost its way and created such a manifest miscarriage of justice in

finding Fuller guilty. This is certainly not an exceptional case where the evidence weighed heavily against the convictions, and we decline to exercise our discretionary

power to grant a new trial. The assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of 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 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.

____________________________ MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR