[Cite as State v. Riley,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107073

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

MICHAEL RILEY

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-608045-A

BEFORE: Blackmon, P.J., Laster Mays, J., and Headen, J.

RELEASED AND JOURNALIZED: March 21, 2019 ATTORNEY FOR APPELLANT

Robert A. Dixon 4403 St. Clair Ave. Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Daniel T. Van Kelly N. Mason Blaise D. Thomas Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, P.J.:

{¶1} Michael Riley (“Riley”) appeals his convictions for murder, attempted murder,

and various associated offenses and assigns the following errors for our review:

I. The verdicts and judgment below were not supported by the manifest weight of the evidence.

II. The verdicts and judgment below are not supported by legally sufficient evidence in violation of the appellant’s due process rights.

III. The lower court erred and denied the appellant a fair trial when it denied

the defense motion to strike the eyewitness identification testimony of

Toni Valenti.

{¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial

court. The apposite facts follow. {¶3} On June 5, 2016, at just before 2:30 a.m., Juan Mitchell and Tarez Steele were

shot as they exited the Iron City Café on W. 14th Street and Jennings Avenue in Cleveland.

Mitchell died on the scene, and Steele required surgery to repair damage the bullet caused to his

foot. According to witnesses and video footage from surveillance cameras, the gunfire came

from the driver’s side rear window of a Nissan Altima that was pulling out of the bar’s parking

lot.

{¶4} On July 20, 2016, Riley was charged with aggravated murder, murder, attempted

murder, four counts of felonious assault, discharge of a firearm on or near prohibited premises,

improperly handling firearms in a motor vehicle, and having a weapon while under disability.

Riley was also charged with one-, three-, and five-year firearm specifications. Riley’s case was

tried to the bench, and on March 20, 2018, the court acquitted Riley of aggravated murder and

found him guilty on all other counts and specifications. On March 28, 2018, the court sentenced

Riley to 15 years to life in prison for the murder, consecutive to 11 years in prison for the firearm

specifications. The court ordered the remainder of Riley’s sentence to be served concurrent to

this 26-year-to-life prison term. It is from these convictions that Riley appeals.

The Convictions

{¶5} Riley was convicted of the following offenses:

{¶6} Murder in violation of R.C. 2903.02(B), which states that “[n]o person shall cause

the death of another as a proximate result of the offender’s committing or attempting to commit

an offense of violence that is a felony of the first or second degree * * *.”

{¶7} Felonious assault in violation of R.C. 2903.11(A)(1) and (2), which state that

“[n]o person shall knowingly * * * [c]ause serious physical harm to another [or] [c]ause or

attempt to cause physical harm to another * * * by means of a deadly weapon * * *.” {¶8} Attempted murder in violation of R.C. 2903.02(A) and 2923.02, which state that

“[n]o person shall purposely cause the death of another” and “[n]o person, purposely or

knowingly, and when purpose or knowledge is sufficient culpability for the commission of an

offense, shall engage in conduct that, if successful, would constitute or result in the offense.”

{¶9} Discharge of a firearm on or near prohibited premises in violation of R.C.

2923.162(A)(3), which states that “[n]o person shall * * * [d]ischarge a firearm upon or over a

public road or highway.”

{¶10} Improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B),

which states that “[n]o person shall knowingly transport or have a loaded firearm in a motor

vehicle in such a manner that the firearm is accessible to the operator or any passenger without

leaving the vehicle.”

{¶11} Having a weapon while under disability in violation of R.C. 2923.13(A)(3), which

states that “no person shall knowingly acquire, have, carry, or use any firearm * * * if * * * [t]he

person * * * has been convicted of any felony offense involving” illegal drugs.

{¶12} One-, three-, and five-year firearm specifications in violation of R.C. 2941.141,

2941.145, and 2941.146, respectively, which state as follows: “that the offender had a firearm on

or about the offender’s person or under the offender’s control while committing the offense”; that

the offender “displayed the firearm, brandished the firearm, indicated that the offender possessed

the firearm, or used it to facilitate the offense”; and “purposely or knowingly causing or

attempting to cause the death of or physical harm to another and that was committed by

discharging a firearm from a motor vehicle * * *.”

Trial Testimony

{¶13} The following evidence was presented at Riley’s bench trial: {¶14} Cleveland Police Officer Kevin Navratil testified that on June 5, 2016, at 2:28 a.m.,

he and his partner received a dispatch call that shots were fired at the Iron City Café, which is

located at 4002 Jennings Road in Cleveland. On their way to the scene, they received a call that

a male had been shot. When they arrived at the scene, they saw two males with gunshot wounds

on the ground in the parking lot. EMS was already there working on both victims.

{¶15} Officer Navratil interviewed Toni Valenti, a friend of both victims who was at the

scene when the shooting occurred. According to Officer Navratil, Valenti said that, as she was

walking out of the bar, she saw two males exit a burgundy Nissan Altima and she “felt weird”

about this. Valenti turned to go back into the bar and heard gunshots.

{¶16} Officer Navratil also interviewed Dwayne Brown, who said that, as he was walking

out of the bar, he “saw a black male wearing a red shirt and white pants approach them and then

he started hearing gunshots.” Brown also saw a “greenish tan Nissan Altima,” with five people

in it.

{¶17} Officer Navratil testified that neither witness saw the shooter. Additionally, the

police found multiple shell casings in the street and a bullet that had hit a white car in the bar’s

parking lot.

{¶18} Melanie Edwards testified that she has known Riley, whose nickname is

“Wilikgan,” for seven or eight years and that she used to buy heroin from him. Melanie also

testified that she used to buy heroin from Riley’s friends, Matthew and Marcus Burgess.

According to Melanie, she had been clean and sober for about a year at the time she testified.

{¶19} Sometime in the summer of 2016, she was driving the Burgess brothers to an

undisclosed location near downtown Cleveland. Matthew, who was in the backseat, was talking

to Riley on his phone. Melanie testified that she heard their conversation, including what Riley said through the cell phone. Matthew and Riley “were talking and laughing and joking about

who shot who.” Asked to explain, Edwards testified that “they wanted to be the person that shot

the guy. They were arguing about which one shot him.” According to Melanie, both Riley and

Matthew took credit for the shooting. Melanie also heard them say that this shooting was a

murder outside the Iron City Café.

{¶20} Melanie testified that once Marcus realized that she could hear everything that was

being said in that phone conversation, he had her pull over and the Burgess brothers got out of

her car. Subsequently, Melanie reported this conversation to the Cleveland police and identified

Riley and the Burgess brothers through photographs the police showed her. Melanie also

identified Riley, who was wearing a red shirt, white pants, and earrings, in Instagram photos he

posted of himself of June 5, 2016, which is the day of the murder at issue. Furthermore, she

identified Riley wearing the same outfit from video surveillance footage taken outside of the Iron

City Café at the time of the shooting.

{¶21} Melanie testified that one of the detectives suggested that she call Crime Stoppers,

and after doing this, she received $1,000 cash in exchange for the information. She also testified

that, after she spoke with the detectives, someone shot at the windows of her house, Riley’s

girlfriend threatened her, and her husband was “jumped” while he was at work. Ultimately, the

Cleveland police helped her and her husband relocate outside of the city.

{¶22} Raymond Edwards testified that he is Melanie’s husband and they used to buy

heroin from Riley and the Burgess brothers. Raymond further testified that in the summer of

2016, he was in the car with his wife and the Burgess Brothers when he learned about a shooting

death at the Iron City Café. This was “a day after everything happened.” Marcus was on the

phone with Riley and “he noticed that we could hear him talking and he said he’ll talk to him later, hung up.” Soon after that, Marcus asked Raymond to drive him to Edgewater Park to

dispose of a gun. Raymond said no.

{¶23} According to Raymond, his wife reported this to the police, and “right after” that,

their house “was shot at a couple of times” and Marcus and another man “tried jumping” him.

After this, law enforcement relocated Raymond and Melanie outside the Cleveland area.

{¶24} Saul Varga testified that he was part owner of the Iron City Café at the time the

shooting occurred. He was working that night, and after the bar closed, he heard approximately

seven to nine gun shots. Although Varga did not see the shooting, he reviewed the bar’s

surveillance videotapes from that time. The video shows a man getting into the back seat of a

four-door sedan, then the car “rolling” out of the bar’s parking lot. As the vehicle drives by,

seven shots are fired out of the rear window. Varga said he could not see any of the people

inside the car, although he could infer there were at least two — one driving and one shooting.

From the video, Varga testified that the vehicle was a dark color, possibly “dark reddish.”

According to Varga, there were about 50 people outside of the bar at the time of the shooting.

{¶25} Toni Marie Valenti testified that she was at the Iron City Café on June 5, 2016,

when she ran into her friends Mitchell and Steele just before the bar closed. They all left the bar

together and walked out of the door that leads to the front parking lot. Valenti said she saw a

man with blonde dreadlocks walk up to another man, who was wearing a “red True Religion

V-neck shirt, white shorts and, like, big block earrings,” and either shake this man’s hand or give

him something.

{¶26} A burgundy car pulled up from the parking lot and “stopped right at us.” The

people inside “were just acting like — just like — just like rowdy, I guess you can say.”

Someone inside the car said, “F*** them westsiders,” and Valenti took that as a threat. Valenti further testified that she saw this man in the red shirt get “out of that vehicle, and that’s the

vehicle that obviously was, like, shooting stuff, you know.” Valenti specified that the man got

out of the driver’s side “back seat” of the vehicle. At this point, Valenti and her friends turned

and ran, and then heard gunshots. Valenti could not tell who was shooting, but said the shots

came from that car.

{¶27} After the shooting, Valenti’s friend Devon, who was at the bar with her that night,

logged into Instagram, pulled up a picture of a person wearing a red shirt, white shorts, and block

earrings, and asked Valenti if this was the man who just shot Mitchell. Valenti believed it was

the same person.

{¶28} Subsequently, Valenti identified Riley as the man she saw outside of the Iron City

Café on the night of the shooting using that same Instagram picture. At trial, this photograph,

along with several other pictures from social media of Riley wearing the red True Religion shirt,

white shorts, and block earrings were introduced into evidence. Valenti again identified Riley as

the man she saw get out of the car at Iron City Café. The Instagram pictures were dated June 5,

2016.

{¶29} The state also introduced still photographs from the Iron City Café surveillance

video on the night of the shooting. When shown a still photo of a man with white shorts, big

earrings, and a True Religion shirt on, Valenti identified him as “the person that [got] out of the

car that was shooting.”

{¶30} On cross-examination, Valenti testified that she did not see the shooter, because

she ran away just before the shots were fired. She also testified that she did not see anyone that

night with a gun nor did she see Riley get into the car. She only saw him get out of the car. {¶31} Cleveland Police Detective Raymond Diaz testified that he reviewed the video

surveillance footage from the Iron City Café on the night in question. He saw Riley, wearing the

red shirt, white shorts, and block earrings, along with two or three other individuals, leave the bar

at closing time and walk through the parking lot. The video shows the group get into a vehicle:

“There’s one in the front driver’s seat, one in the front passenger, and Mr. Riley in the back

driver’s side.”

{¶32} The car pulled up to where a group of people, including Valenti, were standing.

Riley got out of the back seat of the car, was approached by two men, and “there appears to be

communication” between them. Riley got back into the rear driver’s side of the car, and as he

did so, people

already start running on the video. Once he gets in the vehicle, those two gentlemen who were by the vehicle walk away. As soon as the door is closing with Mr. Riley in the back driver’s door, the vehicle pulls up, and within seconds of it pulling up, right when it gets to the edge of the parking lot there are shots fired from the car.

{¶33} Det. Diaz explained how the video captured the “muzzle flashes” from the gunfire

out of the rear driver’s window of the car. Cleveland police later recovered bullet casings “right

there at the edge of the driveway [and] in the street on Jennings as the vehicle turned left onto the

street.” Det. Diaz further testified that “it appears to me the gunshots come from the rear

driver’s side window.” Det. Diaz also identified Mitchell “laying on the ground right there in

front of that vehicle” after he had been shot.

{¶34} Det. Diaz testified that the witnesses at the scene “were not cooperative” that night

other than Valenti and another person giving a description of a light-skinned black male in a red

shirt, white shorts, and block earrings. Witnesses also told police that the car involved was a Nissan, although the color differed from burgundy to green. The surveillance video is black and

white, and the footage is grainy enough that the license plate on the vehicle is not clear.

{¶35} However, the next day, Det. Diaz “received information that one of the people

involved in this was someone with the Instagram [screen name of] “Wilikgan.”’ From there,

Det. Diaz was able to learn that this was Riley, who had posted pictures of himself “that were

time stamped from the day of the incident * * * wearing the exact clothes, the white shorts, the

red shirt with the True Religion emblem and the block earrings.” Det. Diaz testified that when

he interviewed Valenti at the police station, she showed him an Instagram photograph of Riley

with the screen name “Wilikgan.”

{¶36} Det. Diaz testified that he sent Melanie Edwards to Crime Stoppers after she gave

the police information that she overheard a phone conversation in which Riley and Matthew

Burgess took credit, so to speak, for killing Mitchell. According to Det. Diaz, “we sent her to

Crime Stoppers [because] she was getting threats * * *.” Det. Diaz explained that he “actually

told the person at Crime Stoppers that we’re trying to relocate this witness, she did give us a

statement in this case, if you are able to give her some funds.”

{¶37} On cross-examination, Det. Diaz testified that there was no direct evidence of who

fired the gun that killed Mitchell and wounded Steele. The video footage shows Riley and two

other men get in the car. Riley entered through the rear driver’s side door. Within seconds,

shots were fired from the rear driver’s side of the car. However, there is no DNA, fingerprint, or

other forensic evidence linking Riley, or anyone else for that matter, to this crime. No gun was

recovered and no witnesses saw anyone with a gun. Det. Diaz further testified that there was no

direct evidence that Riley was acting in complicity with the other people in the car.

The Verdict {¶38} In the case at hand, the court stated the following when it announced its verdict:

There are certain facts here that are undisputed, thanks in large part to the camera surveillance system in place at the Iron City Café.

We know that it was an uneventful night at the bar with no disturbances, fights, or disputes. We know that the patrons of the bar were peaceably exiting the bar around closing time, somewhere after 2 a.m. There are people milling around as some of the cars begin exiting the premises.

From various camera angles on the videos, we see Mr. Riley and his associates. It is clear they are together acting in concert and engaged in the same enterprise.

Mr. Riley is wearing the distinctive clothing shown in the video [and] the Instagram photos as explained in the testimony of the witnesses. There can be no doubt that Mr. Riley was present and that he both exited and re-entered the vehicle prior to when the shots were fired.

There were questions raised concerning a photo array and the fact that none was done in this investigation. There is no requirement that an array be presented. And, based upon the manner in which this investigation proceeded, none was necessary.

The video shows the vehicle in which Mr. Riley is riding exiting the premises at the same time emitting gunfire. Muzzle flashes are seen and have been testified to as well. Those are the only muzzle flashes shown in the video, and there is no testimony of any gunfire from any other source.

Juan Mitchell and Tarez Steele were both struck with bullets from that gunfire.

Mr. Mitchell met an untimely death, and Mr. Steele suffered a foot injury, almost losing his smallest toe.

Despite the video and the testimony of all of the witnesses, it was impossible to determine who among the three or more individuals in that vehicle actually shot the fatal and injuring shots, and whether there was more than one person shooting out of that vehicle.

It appears that the shots were fired from the rear driver’s side * * * window, which would suggest that it was Mr. Riley doing the shooting. However, it is impossible to determine beyond a reasonable doubt the specific individual doing the shooting. All of the individuals in that vehicle are equally and legally responsible for these crimes, but only Mr. Riley is before this Court. The video from the surveillance cameras was the most important evidence in this case, but it was certainly supplemented by the testimony of the witnesses.

The Court has carefully and painstakingly reviewed those videos, along with reviewing all of the exhibits, notes of the testimony of all the witnesses, [and] my recollection of all that testimony in reaching my decision.

The Court, in reviewing the testimony of the witnesses, applied the tests for truthfulness and credibility and has determined the value and weight to be given to each witness’ testimony. The Court found the testimony presented by the key witnesses to be credible and compelling.

The Court is not concerned about the issue of a reward paid by Crime Stoppers. That witness required a warrant to be brought in to testify, and the recommendation to speak with Crime Stoppers came after her full statement with the homicide detective. There is nothing to suggest that the order in which those events occurred would cause her testimony to be tainted.

After carefully considering all of the evidence, the Court makes the following findings: Due to the inability to specifically identify the person shooting the gun or guns in this instance, the Court is unable to determine beyond a reasonable doubt the elements of Count 1, aggravated murder, and finds Mr. Riley not guilty of that count.

For the remaining counts, the Court finds Mr. Riley was complicit in the actions

that led to the death of Juan Mitchell and the injuries to Tarez Steele.

Sufficiency of the Evidence

{¶39} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the

prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and

sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist. Cuyahoga No.

100315,

. “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.” State v. Driggins, 8th Dist. Cuyahoga No. 98073,

, citing State v. Thompkins,

,

(1997).

{¶40} The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt. State v. Vickers, 8th Dist. Cuyahoga No. 97365,

, citing State v. Jenks,

,

(1991).

Manifest Weight of the Evidence

{¶41} In State v. Wilson,

,

,

, ¶ 25,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight

challenge, as follows:

The criminal manifest-weight-of-the-evidence standard was explained in State v.

Thompkins (1997),

,

,

. In

Thompkins, the court distinguished between sufficiency of the evidence and

manifest weight of the evidence, finding that these concepts differ both

qualitatively and quantitatively.

,

. The court held that

sufficiency of the evidence is a test of adequacy as to whether the evidence is

legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence’s effect of inducing belief.

,

. In other words, a reviewing court asks whose evidence is more

persuasive — the state’s or the defendant’s? We went on to hold that although

there may be sufficient evidence to support a judgment, it could nevertheless be

against the manifest weight of the evidence.

,

. “When a

court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’

and disagrees with the factfinder’s resolution of the conflicting testimony.”

,

, citing Tibbs v. Florida (1982),

,

,

.

{¶42} An appellate court may not merely substitute its view for that of the jury, but must

find that “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.”

Thompkins at 387. Accordingly, reversal on manifest weight grounds is reserved for “the

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

Analysis

{¶43} On appeal, Riley argues that “all of his convictions herein (Counts two through ten)

were not based upon legally sufficient evidence. * * * No evidence whatsoever was presented

that Mr. Riley had a gun, used a gun or did any single act that would constitute complicity.”

Furthermore, Riley’s arguments under a manifest weight of the evidence theory are based on the

same reasoning: There was either no evidence or a lack of credible evidence “placing Riley in the

car the shots came from, but assuming for purposes of argument that credible evidence proved he

was in the car, there is no evidence to demonstrate that he did any of the things necessary to

create criminal liability under a complicity theory.”

{¶44} R.C. 2923.03(A) defines “complicity” as follows:

No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense * * *;

(4) Cause an innocent or irresponsible person to commit the offense.

{¶45} The Ohio Supreme Court further established that, to prove complicity, “the

evidence must show that the defendant supported, assisted, encouraged, cooperated with,

advised, or incited the principal in the commission of the crime, and that the defendant shared the

criminal intent of the principal. Such intent may be inferred from the circumstances surrounding

the crime.” State v. Johnson,

,

(2001).

{¶46} In In re T.K.,

,

,

, the

Ohio Supreme Court held that “the state need not establish the identity of the principal in order to

convict an offender of complicity.” Although mere presence at the crime scene is insufficient,

criminal intent may be inferred from “companionship * * * and conduct of the defendant before

and after the offense is committed.” In other words, the evidence must establish that the

defendant was more than a mere bystander. State v. High, 8th Dist. Cuyahoga No. 106198,

.

{¶47} According to Riley, there is no evidence that he had knowledge that a shooting

would take place, and the “Court’s verdict is based on mere speculation in this regard.” Riley

argues that, while the identity of the shooter need not be established, the state must prove

“beyond a reasonable doubt that the defendant was more than merely present.” Riley

emphasizes that he was acquitted of aggravated murder because of “lack of evidence of identity

of the perpetrator,” but found guilty of all other counts under a complicity theory.

{¶48} Riley further argues that his case is similar to State v. Bradford, 8th Dist. Cuyahoga

No. 105199,

, in which this court reversed a defendant’s convictions for two

firearms-related charges based on insufficient evidence that the defendant was involved in the drive-by shooting at issue. In Bradford, witnesses saw shots fired from a single person holding

a gun out of the rear passenger window of a Dodge Charger. Id. at ¶ 87. Evidence showed that

Bradford’s mother owned the Charger and that, based on cell-tower mapping, Bradford’s cell

phone was in the area of the shooting at the time the shots were fired. Id. at ¶ 34, 96.

{¶49} In reversing Bradford’s convictions, this court found that the evidence was

“insufficient to support the presence” of Bradford at the scene of the crime, noting that “cell

mapping * * * does not demonstrate that appellant was personally present” at the shooting. Id.

at ¶ 99-101. Upon review, we find that the facts of the case at hand are significantly different

than the facts presented in Bradford.

{¶50} In the instant case, surveillance video shows that Riley was in the car at the time

shots were fired from the vehicle. This differs from Bradford, because in that case, the evidence

put the defendant’s cell phone at the scene of the crime, and this court held that this was

insufficient to put the defendant himself at the scene of the crime. As the trial court in the case

at hand stated, the best evidence is the surveillance video, which shows: Riley walking with a

group of men to the bar’s parking lot; Riley and two of the men getting into a Nissan Altima,

with Riley using the driver’s side back door; and Riley exiting the vehicle and talking to two men

with dreadlocks, then getting back into the car again using the driver’s side back door. The

video then shows the car start to pull out of the parking lot and, within seconds, gunfire coming

from the back driver’s side window. Eyewitness statements corroborate this evidence, although

nobody saw who exactly fired the gun. This evidence squarely puts Riley at the scene of the

crime.

{¶51} Taking into consideration the complicity statute, we find that the state presented

sufficient evidence to convict Riley of the shooting, which resulted in Mitchell’s murder and physical injury to Steele, and the other associated offenses. Riley is seen talking to and walking

with the other men who got in the car. Additionally, Riley gets out of the car, talks to two

people and possibly takes something from one of them, and gets back in the car. Immediately

after this, shots are fired from the rear driver’s side of the vehicle, which is where Riley got into

the car.

{¶52} Furthermore, we cannot say that Riley’s convictions are against the manifest

weight of the evidence. Eyewitness testimony from Valenti corroborates what is shown in the

video. Testimony from Melanie and Raymond shows that Riley and the Burgess brothers were

talking about the murder and each claiming to have been the shooter shortly after the incident.

Additionally, Riley’s Instagram posts show him wearing the exact same clothing as the person

captured on the surveillance video getting into the car immediately prior to when the shots were

fired. These photographs are dated June 5, 2016, which is the same day as the offense. We agree

with the trial court’s assessment of witness credibility, and when considered alongside the

indisputable video evidence, weighs in favor of conviction.

{¶53} None of the evidence suggests that Riley was a mere bystander to this drive-by

shooting or that he abandoned his criminal purpose before the shots were fired. Prior to the

shooting, someone from the group of men who were in the car said, “F*** them westsiders.”

Riley was the only person to exit and reenter the vehicle before the shots were fired. Riley was

sitting in the seat of the car from which the shots were fired. Riley and the Burgess brothers

bragged about the shooting the day after it occurred. Thus, a rational trier of fact could infer

from this evidence that Riley had a role in the shooting based on his actions, before, during, and

after the incident. See State v. Cartellone,

,

(8th Dist. 1981) (“Evidence of aiding and abetting another in the commission of crime may be

demonstrated by both direct and circumstantial evidence.”)

{¶54} Accordingly, Riley’s convictions are supported by sufficient evidence and are not

against the manifest weight of the evidence. Riley’s first and second assigned errors are

overruled.

Motion to Strike

{¶55} We review the denial of a motion to strike under an abuse of discretion standard.

Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 81675,

, ¶ 7. “The term ‘abuse

of discretion’ connotes more than an error of law or of judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” State v. Adams,

,

(1980).

{¶56} Riley argues that “the lower Court erred in failing to strike the identification

testimony of Ms. Valenti based upon improper identification procedures.”

{¶57} Courts apply a two-prong test to determine the admissibility of pretrial

identification testimony. State v. Lennon, 8th Dist. Cuyahoga No. 104344,

. “First, the trial court must determine whether the identification procedures were so

impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Second,

the trial court must determine whether the identification itself was unreliable under the totality of

the circumstances.”

If the defendant establishes the first prong, the following factors

should be considered to determine whether the identification was nonetheless reliable: “the

opportunity of the witness to view the perpetrator at the time of the offense, the witness’s degree

of attention, the accuracy of the witness’s prior description of the perpetrator, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the

crime and the confrontation.” Id. at ¶ 51.

{¶58} In the case at hand, Valenti identified Riley via Instagram photos prior to speaking

with the police. Det. Diaz testified that when he subsequently interviewed Valenti at the police

station, she showed him an Instagram photograph of Riley with the screen name “Wilikgan.” In

response, Det. Diaz showed Valenti additional pictures of Riley, including his OHLEG 1

photograph, to ensure accuracy of her identification.

{¶59} Upon review, we find nothing impermissibly suggestive about this identification

procedure, particularly because Valenti first showed a picture of Riley to the police.

Accordingly, Riley’s third and final assigned error is overruled.

{¶60} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of Common

Pleas to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal 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.

PATRICIA ANN BLACKMON, PRESIDING JUDGE

1 OHLEG is an acronym for the Ohio Law Enforcement Gateway electronic information network, which is part of the Ohio Attorney General Bureau of Criminal Investigation. ANITA LASTER MAYS, J., and RAYMOND C. HEADEN, J., CONCUR