STATE OF OHIO

Appellee

vs.

IN THE OH O SUPREME COURT

12-.411On Appeal from the Eighth DistrictCourt ofAppeals.CA; 97314

Trial Ct. CR-532075A

JERREL T. GLENN

Appellant

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JERREL T. GLENN

Prosecuting Attorneys OfficeWilliam D. Mason1200 Ontario St. 9`" FloorCleveland Ohio44113

COUNSEL FOR APPELLEE

JERREL T. GLENN #603-951PO.BOX 57MARION OHIO43301

APPELLANT - PRO SEAUG 17 7017

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

EXPLANATION OF WHYTHIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTERSEST AND INVOLVES A SUBSTANIAL CONSTITUTIONAL

QUESTION .................................. ........................................................................... 1,2

STATEMENT OF THE CASE ...............................................:.................................. 3

STATEMENT OF THE FACTS .............................................................................. 4,5.

Proposition of Law No:1 Did the Eighth District Court of Appeals decisionviolate Appellants Constitutional Rights pursuant to the Standard of reviewwhen presented with Manifest Weight argument? ..........:......................................... 6,7

Proposition of Law No: II Did the Eighth District Court of Appeals errorby affirming the trial courts erroneous decision to render a verdict withoutthe required proof beyond a reasonable Doubt? ....................................................... 8,9

Proposition of Law No: III Did the Eighth District Court of Appeals decision to allowtext messages conversations violated Appellants Constitutional Right to Due Process asGuaranteed by the Sixth Amendment to the United States Constitution ............... 10

Proposition of Law No: 4 Did the Eighth District Court of Appeals violate AppellantsConstitutional Right by failing to reversed the multiple Firearm specifications that allarose from the same transaction? ......................................................................:...... 11

Conciusior ............................................................................................................. 12

Certificate of Service ........................................:.......................................:............ 13

APPENDIX Appx Page

Opinion of the Eighth District Court of Appeals(July 5`" 2012) ........................................................................................................

Judgment Entry of the Eighth District Court of Appeals(July 5" 2012) ........................................................................................................

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case present three critical issues for this Ohio Supreme Court pertaining to Appellant's

June 29' 2011 conviction. Appellant now ask this Honorable Court to grant his Memorandum in

Support for the following reasons stated herein.

The decision of the Eighth District court of appeals denies Appellant the protections provided

within the basic protections within R.C.2941.25 where the legislative intent was to prevent "Shot Gun

convictions" State v Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, at ¶ 69. This Ohio Supreme Court

would be reasonable to find reversible error in the imposition of Multiple punishments for allied

offenses committed in this case, the Court of Appeals for the Eighth District decision on July 5°i 2012,

clearly ignored the Protections against Double Jeopardy. The Decision by the eighth district affects all

citizens in Ohio who are faced with Multiple Firearm specification as in this case.

If the decision were allowed to stand in this case, all citizens would be denied the protections

afforded within R.C. 2941.25; Which protects a defendant only from being punished for allied offenses.

Tiiis case, presents serious Critical Questions of Law for tlie Ohio Supreme Coart. (1) Did the Eighth

district violate the double Jeopardy Standard in this case pursuant to R.C.2941.25?.

The Decision of the Eighth District court of Appeals threatens the Structure of the requirement of

Sufficiency determination in this case. Appellant Jerrell Glenn ask this Ohio Supreme Court to review

the sufficiency of the evidence in this case, as the Eighth District Court of Appeals decision on July 5`n

2012 reached a erroneous decision that affects all Ohio Citizens who faced the Sufficiency test as in

this case. State v Tompkins, 78 Ohio St. 3d 380, 390, 1997 Ohio 52, 678 N.E. 2D 541, provided the

proper test in which the decision of Eighth District Court of appeals clearly ignored in its decision. The

Proper Question for this Honorable Court is;(2) Was the relevant inquiry, after reviewing the evidence

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

of the crime proven beyond a reasonable doubt.

Appellant Jerrell Glenn answer's in the negative. The evidence in this case, demonstrates the Ohio

Court of Appeals for the Eighth district violated Appellant Glenn of his Constitutional Right on Appeal

to the relevant inquiry of the Sufficiency test utilized in State v Thompkins Supra.

All Ohio Citizens are afforded the same Protections this case prevents, Appellant now ask this

Ohio Supreme Court to address the Question; Did the Court ofAppeals for tlte Eighth District violate

appellant's right,when the Court ofAppeals allowed circumstantial evidence in this case to be

reviewed as `proof' in light of real evidence?

Hearsay Rule/Evidence Rule

Appellant Jerrell Glenn asserts that this case presents a critical Question for the Ohio Supreme

Court pertaining to the violation of his Constitutional rights against inadmissible evidence in light of

Evidence R.90 1. In the present case, the Ohio Court of Appeals for the Eighth District violated the right

of Appellant to the protections provided by Legislative intent, when the Ohio Court of Appeals decision

allow evidence admitted of text messages into evidence in this case. The Proper Question for the Ohio

Supreme Court consist of; Did the decision of the Eighth District Court ofAppeals to improperly

admit Evidence that was not authenticated under Evid R. 901(A) Violate Appellant's Constitutional

Right on Appeal?

The decision of the Eighth district in this case disturbs the protections provided all Ohio Citizens

on appeal to be protected from the very constitutional Rights violated in this case. As a constitutional

Right Appellant in this case asserts that the decision of the Eighth District did not directly address or

permit any protections in which the Constitution of not only Ohio, But the United States Constitution

protects when cases such as the case before this Ohio Supreme Court. Appellant Jerrell Glenn now

Ask this Honorable Court to review his Proposition of Laws for the following reasons stated herein.

STATEMENT OF THE CASE

On March 23,2010, Appellant along with co defendant was indicted by the Cuyahoga County

Grand Jury in Case No. CR-535072 appellant was charged with a six count of kidnapping, two counts

of attempted murder, four counts of felonious assault, and five counts of aggravated robbery, All

charges included one-and three-year firearm specifications. The indictment alleged a conspiracy to rob

and shoot Kenneth Elsleger who was known to carry large amounts of cash.

Appellant appeared at arraignment on March 26, 2010 and entered a plea of "not guilty" to all

charges. A Bench trial pursuant to jury waiver began on June 13, 2011. On June 29,2011 the court

returned its verdicts for both defendants. On August 4, 2011 the Appellant and Co-defendant were

sentenced. Prior to sentencing the state acknowledged on the record as to counts 4 and 5 and the

underlying gun specification to merge leaving count 4 for sentencing purposes. Counts 6 and 7 were

also merged with sentencing going forward on count 7. As to counts 11 and 12 the state elected to go

forward on count 11.

The trial court imposed a prison sentence at Lorain Corr Inst of 16 years. All 1 year and 3 year

firearm specifications merged. 3 year gun specifications are to be served prior to and consecutive with

2 years on the base charge on counts 4 and 5; counts 4 and 5 merged; 3 year gun specification to be

served prior to and consecutive with 3 years on the base charge on counts 6 and 7 merge; 3 year

gun specifications to be served prior to and consecutive with 2 years on the base charge on counts 11

and 12 merge, counts 11 and 12 are consecutive to counts 4 and 5 and counts 6 and 7 for a total of 16

years. The trial court imposed a fine of $1,000.00 on counts 4,7 and 11.

counts 4 and 5 merged; 3 year consecutive to 3 years for firearm specification

counts 6 and 7 merged; 4 years consecutive to 3 years for firearm specification consecutive to count 4.

counts 11 and 12 merge; 2 years consecutive to 3 years for firearm specification, all consecutive to count

4 and 7... Total prison term sentence; 16 years.

STATrM GNT 0r FA CTs

The Appellant was charged in a multiple count indictment along with co-defendant Adam

Cassano. Both Appellant aiid Cassano were charged with aggravated robbery, kidnnppinb, and

feloniotts assault stemining fi'on1 events that ocenued tlie evening of February 13, 2010, in

Parma, Ohio. Below are the facts oPthe case. Closer scrutinyof specific facts is made in each

separate assignment of error.

Kenneth I?lsleger testified that on the evening ot'Pebruary 132010 he wns out drinlcing

with Appellant, Joseph Zlsleger (Kemieth's brotfier), N[ario Galipo, and Samantha DiVincenzo.

The evening began around Sp.m.at Elseger's apartment where all parties gathered and left

in one vehicle; Eseger's cnr. Tieywe& to the Lido Lounge on Vdcst 117" Street in Cleveland,

Ohio. After Lido's tlicy went to Scorelceepers Lounge in Parma, Ohio. Shortly after 2:30 a.m.

the group a0ved in the same vehicle at the parlciiig lot of Llsleger's apartuaent.Moments aftei-

leaving the p'ailcedcar a hooded bunman confironted the group and tolcl Elslegel- to empty his

pockets. The gunman ri.pped a necklace off oP Elsleger. A. nioment later the gunmait shot

ICenaeth Plsleger in the neclc and his brother, Toseplt Glsleger in the slomach. Kenneth could

iot identify the gunroan. All lie could say was thathe was a"white guy". (T. 49-69) As a result

of the shooting 131sleger is unable to walk.

7oseph Llsleger's testimony was nearly identical to his brother's witli the addition of

many otherfacts. Iie indicated that Appellant got out of the car and ran as sooii asthey pulled

iiito theparlcinglot. (T. 78) I-te grabbed tl e gunman by thewrist and struggled withhim tintil

Mario Galipo pulled him off freeing tlie gunman. IIe was then shoved to grouucl by an unknown

person, the gun went off, strikiug his brother. Wliile on the bround 7oseph was sliot. The

gunman ran from the area. Joseph also eould not iclentif'y the gLiniilan and otlier than noticing

that lie was a`9ight-skinned whitc guy". (T. 83-87)

Mario Galipo stated tliat everyone Was drunlc when they arrived nt the parl.ing lot. A

man came up and asked if he had a lighter. Moments later he saw fhe mnn shoot three shots into

the air. Galipo saw the man fii-e one sliot at Kenneth Dlsleger and one shot at Joseph Elsleger

beforefleeing on foot. (T. 90-93) Galipo wns shown a photo liiie-up by the Parma Police

Department out of which lie chose the photo of an unknown person - not Co-Defendant Adam

Cassano. (T.95)

San3antha DiViiicenzo's version of events reflected Mr. Galipo's yet difl'ered in that slie

believed the gumnan was either an African-Ainerican witl-t hlaekhair someone with a covering

over his face. Slie couldnot i(lentify the sliooter from the police photo array. (T. 129-149)

Detective Klein of the Pnrma Police Department conducted the investigation of this case.

IIe arrived at the crime sccne an hour after the shooting. 1~roni there he went to intcrview tlie

APpellant and Adam Cassano. (T. 153-158)

Klein obtained cell plione records of Appellant. Appellant gave Detective Klein his cell

phone no. 440-665-3167 (hereinafter known as 'Appellant's phone'). Klein identified certain

text messeges in Appellant's cell phone records he deemed "suspicious" (T: 165-170). A phot'o

of Appellant snd Adam Cassano with an unlcnown female was located in Appellant's residence

(State's Ex. 38).

Verizon Cellular's John Michael Brogan testified regarding cell plione records for several

plione numbers with a focus on text messages to and itom Appellant's phone, 440-665-3167 and

216-618-4722 (hereinafter ]uiown as the `mystery number') and 216-624-9341.

Proposition of Law No; 1 Did the Eighth District Court of Appeals decision violate AppellantsConstitutional Rights pursuant to the Standard of review when Presented with Manifest Weight

argument?

Appellant asserts that although the Eighth District Court of Appeals may determine#hat the

Judgment in this case may be sustained by sufficient evidence, The court of Appeals nevertheless

erred when it concluded that the Judgment was against the weight of the Evidence in this case.

In the present case before this Ohio Supreme Court, the Eighth District Court of appeals erred in

finding this case met the burden of proof beyond a reasonable doubt. Thompkins at 386-87, On appeal

all Ohio Defendant's are entitled to have their cases reviewed in a fair and unjust manner, When a

challenge to the manifest weight of the evidence attacks the verdict in light of the State's burden of

proof beyond a reasonable doubt, a reviewing court may reverse the judgment of conviction if it

appears that the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.

Appellant asserts that although this case presented both the Sufficiency evidence along with the

Manifest weight of the evidence, the Court of Appeals address both issues together as they were so

closely related. However, Appellant present separate arguments for Both issues; Here Appellant argues

that the Trial court [Bench Trial] clearly lost its way when deciding appellants issue of Manifest Weight

of the evidence; Here is why

This case was tried to the court pursuant to Appellant signing a waiver of the Jury. Appellant

asserts the Ohio Court of Appeals review of Manifest weight issues remain the same under review. In

all Ohio Case, when on review of Manifest Weight, the trial court must detennine if the state has

produced proof beyond a reasonable doubt for each defendant. This case presented [Two Co-defendant]

Appellant Jerrell T. Glenn and Adam Cassano. Moreover, The facts presented to this Honorable Court

consisted of; [Evidence of Texting] along with [Text Messages] along with the State's Burden to link

Adam Cassano to the Mystery Number on Appellant°s Phone.

The Crux of the matter in this case, resolves around the question; Did the Court ofAppeals for

the Eighth District err when it affirmed the Trial court's decision without the required necessarv

Proof of reasonable doubt? as required in State v Thompkins 678 N.E. 2Nd 541 (1997) Ohio Courts

have consistently held that; The legal concept of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different.

The Eighth District Court of Appeals decision if allowed to stand, violates Appellant's

Constitutional Right on appeal to have the Standard of Review required in State v Thompkins 678 N.E.

2"a 541. Moreove, there were two co defendant's and several Text Messages, In which the State's

overall theory was that Co defendant Cassano was the Gunman and he worked in concert with

Appellant who allegedly guided Cassano to the scene via a series of Text Messages. The Question for

the Ohio Supreme Court now consist of; Did the Eighth District Court ofAyneals Properly and fully

satisfy the rertuiredproof to establish that the Recipient ofAppellant {Glenn's1 Test messaQes was in

fact his Co-defendant? and, given the victims 'failure to identify him as the shooter, there was

significant doubt whether Appellant was properly convicted in review of the Manifest Weight issue.

The Eighth District Court of Appeals decision clearly failed to establish that Appellant forward

any test messages at all. Does the Eighth district violate Appellant's Constitutional right by failing to

require the State of Ohio to a Higher Standard of Proofas Required by Ohio law when deciding the

Manifest Weight issue as in this case?

This decision by the Eighth District Court of appeals affects all citizens in Ohio when on appeal of

Manifest Weight Issues. Appellant asserts that the Public would be affected by the decision of the

Eighth District, as Appeals to Manifest Weight require the court of appeals sit as a Thirteenth Juror in

determining after reviewing the entire case, if the Trial court clearly and convincingly lost its way as in

the present case before the Ohio Supreme Court. Appellant's ask this Ohio Supreme Court the

Question; Did the Eighth District Review in this case consist of the totality of circumstances to reach

a decision based on the entire record in this case as required by Ohio Law on Manifest Weight issues?

Proposition of Law No; 11 Did the Eighth District Court of Appeals error by affirming the trialcourt's erroneous decision to render a verdict without the required proof beyond a reasonable doubt?

This case present a Question of law pertaining to Appellant's Specific argument of Sufficiency of

the evidence in this case. The Eighth District Court of Appeals decision was erroneous in several ways.

Does the rlecision of the Eighth District go against the standard of insufJficient evidence in tlcis case?

Here, the test for Sufficiency requires a determination of whether the prosecutiommet its burden of

production at trial. Appellant asserts the State did not..... Here is Why; The relevant inquiry is whether,

after reviewing the evidence in this case in light of most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond the reasonable doubt; See

State v Thomplins 78, Ohio St. 380 678 N.E. 2D 541.

This case is the result of evidence of [Text Messages] that were improperly allowed as evidence

against Appellant to determine the truth of the matter in question. The Question for this Honorable

Court to consider is; Did the Text messages offered in this case constitute an offer for the truth of their

contents in this case? Furthermore, Did the Eighth District Court ofAppeals error by ruling that none

of the test messages were offered for the truth of their contents? Clearly the Ohio court of appeals for

the eighth district reached an erroneous conclusion based solely on inferences. Does inferences alone

constitute a valid Convictions?

This case presents challenges for all Ohio Citizens when convicted solely based on insufficient

evidence as in this case. Furthermore, if allowed to stand, the burden of proof as required by Ohio Law

would prove to be meaningless. As the evidence in this case, does not link both Appellant and his Co-

defendant together in committing any Crime.

State v Jenks, 61 Ohio St. 3d 259 574 N. E 2D 492 (1991) The Trier of Fact in this case which

was the Judge [Bench Trial] violated Appellant Constitutional right to the Fourteenth Amendment by

allowing inadmissible evidence at trial. Wherefore, the Eighth District Court of Appeals erred by

failing to protect Appellant's Constitutional Right to the insufficient Evidence Appellant was convicted

on at trial.

This Ohio Supreme Court would be reasonable to accept Appellant's Memorandum in Support as

it raises appropriate questions of Law that would protect all Ohio Citizens on appeal. In this case there

is evidence that the Witnesses in this case, could not and did not identify his Co-defendant.

Appellant asserts that not only did the state not meet its burden of proof in this case, Appellant

asserts that his Co-Defendant was never positively Identified as the Shooter. Notably; this case was

built on a Theory of the two Defendants Conspiring to commit a Robbery. The Eighth district Court of

appeals decision on July 5"' 2012 relied upon circumstantial evidence, stating; "Although there are

obvious differences between direct and circumstantial evidence, those differences are irrelevant to the

probative value of the evidence- - the Eighth district went further to state; Circumstantial evidence

carries the same weight as direct evidence. State v Treesh, 90 Ohio St. 3d 460, 739 N.E.2d 749 (2001).

Appellant relies upon the Ohio Supreme Courts decision in State v Heinish, 50 Ohio St. 3d 231,

238, 553 N.E.2d 1026 (1990) which stated in part; "that Circumstantial evidence is sufficient to sustain

a conviction if the evidence would convince the average mind of the defendant's guilt beyond a

reasonable doubt." Does lack of Identification result in evidence sufficient to support a conviction?

In the present case before this Ohio Supreme Court, all Ohio citizens would suffer a Miscarriage of

Justice if the Court of Appeals decision to allow Evidence to be deem sufficient even when the victims

Identification result in uncertainty as in this case. The Question of Law for this Ohio Supreme Court

directs this cour-C to the irrational decision rendered on July 5" 2012 by the Eighth District Court of

appeals affirming Appellant's Conviction in liglit of witnesses that failed to Identify not only Appellant

as the Co Conspirator, But failed to Identify Appellants co defendant as the Shooter.

Appellant Jerrell T. Glenn ask this Ohio Supreme Court to review his case with the Question of

Law; Does the facts of this case, in light of the witnesses failure to Identify Co-defendant as the

shooter in this case, along with the theory the state Relied upon, Constitute enough evidence to

overcome a invalid Conviction?

Proposition of Law No:111 Did the Eighth District Court of Appeals decision to allow test messagesconversations violate Appellants Constitutional Right to Due Process as Guaranteed by the Sixth Amendment tothe United States Constitution.

The Eighth District Court of Appeals decision is of great interest to the General Public and effects

all citizens rights on appeal when courts erroneously admit Records into evidence that constitute the

truth of the matter sought, In violation of Evid R.901(A).

Appellant asserts the Eighth district Court of Appeals decisions violates his Constitutional Right

by allowing the Trial courts admission of Text Message Conversations as Business Records. The Crux

of the Matter here, resolves around a series of Constitutional Questions in which Appellant Jerrel T.

Glenn presents to this Honorable Court; (1) Does the Testimony of Verizon's John Brogan satisfy

the exception of the Rule in Evid R. 901(A)? The decision of the Eighth District Court of appeals

allows inadmissible evidence to infer compliance to the exception Rule, which allows John Brogan to

testify as to the authentication of the Text Messages.

The exception Rule of Evid R. 901(A) in this case is Critical. Here is Why; This case involves a

Mystery Number. Without an authentication identifying the person wot whom this number is registered

any evidence regarding it cannot be admitted. ( 2) Did the Eighth District's Decision ignore the

prejudice Appellant suffered on Appeal when John Brogan could not testify how the records were

complied and and whether the method of record retention was in fact reliable?

Appellant ask this Honorable court to review the decision of the Eighth District Court of Appeals

and resolve the Question of; (3) Did the Court of Appeals ignore the inference of hearsay, even after

the Trial court Concedes the hearsay problem exist (T.326)? This case consist of serious prejudicial

problems created by the admittance of theses text messages.

Wherefore, to protect the interest of the public and all Ohio citizens on Appeal, Appellant Jerrel

T. Glenn ask this Ohio Supreme Court to Protect his Constitutional Right on Appeal pertaining to the

admittance of inadmissible Evidence in violation of Evid R. 901(A) and Resolve the question of;

Did Appellant suffer prejudice when Eighth District allowed inferences from unreliable text messages?

Proposition of Law No:4 Did the Eighth District Court of Appeals violate Appellants Constitutional Right byfailing to reversed the multiple Firearm specifications that all arose from the same transaction?

Appellant was convicted and sentenced to Multiple firearm specification all stemming from a

single act or simply put a single transaction. Ohio Courts have consistently dealt with cases where

multiple firearms have been reversed when there were no separate acts. State v Jones, 10'h Dist. No.98

AP-639, 1999 Ohio App. LEXIS 1248 (Mar.18, 1999). In Jones, the court note; "The separate animus"

test applicable to R. C.2941.25 does not apply when determining whether firearm specif cations merge.

This Ohio Supreme Court has defined the term "transaction," as used in the firearm specification

statutes, as a "series of continuous acts bound together by time, space and purpose, and directed toward

a single objective. In the present case at bar, this complete case is based on the Stateof Ohio's theory

and the Eighth District Court ofAppeals inferences. The Question before this Honorable Court now

consist of; (1) Did the Eighth District Court of Appeals violate Appellant's Constitutional Right

on Appeal by affirming the Trial Court's Multiple Firearm Conviction? Here is Why? The Court of

Appeals relied on; R.C.2929.14(B)(1)(g), as it was amended by H.B.86, which provides the same

language as former R.C.2929.14(D)(1)(b).

Appellant asserts that he vaas convictcd and sentenced c:. August 4" 2011, clearly prior to any

amendment of R.C.2929.14(D)(1)(b). Notably; the language in either Statute allows Appellant to be

sentenced only on two of the most serious felonies.... Appellant ask this Ohio Supreme Court; Does

the Trial Court abuse its discretion by sentencing Appellant on Third Firearm specification in

light of R.C.2929.14 (D)(1)(g) as held by the Eighth district court of appeals in this case?

This case presents a critical Question of Law allowing Ohio Court of Appeals to affirm convictions

of Multiple offenses pursuant to R.C.2929.14(D)(1)(b). Appellant asserts that this case affects all

citizens on appeal facing Multiple convictions for firearm specifications. Moreover, Appellant ask this

court to reverse the Decision of the Eighth District Court of Appeals based on this Ohio Supreme

Courts ruling in; State v Wills, 69 Ohio St. 3d 690, 691, 1994 Ohio 417, 635 N E.2d 370.

CONCLUSION

The Crux of the State of Ohio's Case against Appellant Jerrel T. Glenn was based solely on the

inferences that he co-conspired with another Adam Cassano to commit a Robbery. The Eighth District

Court of Appeals allowed evidence of Test Messages that simply were not reliable to the truth of the

Matter sought in this case. Appellant stood not chance after the Trial court allowed into evidence

unreliable Text Messages in this case. Furthermore, The State along with the Trial court Relied on

the Exception to the Hearsay Rule in this case, which violated Appellant's Constitutional Right to

Evid. R. 901(A).

Additionally, this case is the result of the trial court's abuse of discretion by imposing multiple

convictions on firearm specifications pursuant to R.C.2929.14(D)(1)(b). Appellant should not have

been convicted on the Multiple Firearms all stemming from a single transaction as defined in State v

Wills 69 Ohio St. 3d 690,1994 635 N.E.2d 370. Where the Ohio Supreme Court defined the term

"transaction" as used in the firearm specification statutes, as a "series of continuous acts bound

together by time, space and purpose, and directed toward a single objective. The facts of this case all

demonstrate a single transactions in which the trial court should have merged the firearm specification.

Appellant ask several questions that effect all cases when Multiple firearms are subject for review as in

the present case, wherefore appellant Jerrel T. Glenn ask this Honorable Court to except Jurisdiction in

this case to resolve the Conflict the Eighth District Court of Appeals decision created in light to this

Ohio Supreme Court's Decision in State v Wills as stated herein.

In Summary, Appellant ask this Ohio Supreme Court to review his Proposition of Law in light of

the evidence in this case, to resolve the erroneous decision of the Eighth District Court of Appeals

decision in light of the Insufficient evidence presented at trial. Appellant was convicted based all on

inferences, as the Identification in this case was not determined of the Co defendant Cassano as the

one Conunitting the Robbery. Appellant directs this Honorable court to the Question; If the Identity of

the actual Perpetrator is not reliable does the state meet its burden to convict appellant as co defendant?

CERTIFICATE OF SERVICE

I do hereby certify that a copy of Memorandum in Support has been forward to the

Prosecutor's office located at 1200 Ontario St. Cleveland Ohio 44113 9'b Floor on this ^

2012, by Regular U.S. Mail.

JUL 0 5 2012

Caurt of 0(ppeaYg of ObioEIGHTH APPELLATE DIS T RCCT

COUNTY OF CUYAH'OGA

JOURNAL ENTRY AND OPINIONNo. 97314

STATE OF OHIO

PLAINTIFF-APPELLEE

vs,

JERREL T. GLENN

D EFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-5350'72

SEFORE: Cooney, J., Boyle, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: July 5, 2012

CA11097314 74533045

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ATTORNEY FOR APPELLANT

Joseph. E...Eeighan,, III..14516 Detroit AvenueLakecvoocl, Ohio 44107

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

By: Stephanie HeibertshausenAssistant County Prosecutor9"` Floor., Justice Center1200 Ontario StreetCleveland, Ohio 44113

FILED AND JOURNALIZED^rR APP.R. 22(C)

JUL o 5 2012

GERALp E, FUERST

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COLLEEN CONWAY COONEY, J.:

{¶ 1} Defendant-appellant, Jerrel Glenn ("Glenn"), appeals his convictions

and-sentence. We find no merit to the appeal and affirm.

{^(2} In March 2010, Glenn was charged with six counts of kidnapping,

two counts of attempted murder, four counts of felonious assault, and five

counts of aggravated robbery. All the charges included one- and three-year

firearm specifications. The indictment alleged a conspiracy to rob and shoot

Kenneth Elsleger ("Kenneth"), who was known to carry large amounts of cash.

{¶3} At a bench trial, Kenneth testified that on the night of the shooting,

he had gone out drinking with Glenn, his brother Joseph Elsleger ("Joseph"),

and two friends, Mario Galipo ("Galipo") and Sarnantha DiVincenzo

("DiVincenzo"). After stopping at the Lido Lounge, the group went to

Scorekeeper's Lounge ("the bar") in Parma and returned to Kenneth's

apartment building at 2:30 a.m. When Kenneth parked the car, Glenn exited

the vehicle and quickly disappeared. Galipo and DiVincenzo, who had been

arguing, walked over to Galipo's car so DiVincenzo could retrieve items from the

trunk. Joseph accompanied the couple to the car to help DiVincenzo carry these

items.

{¶4} Meanwhile, a man wearing a hooded sweatshirt confronted

Kenneth in the parking lot and ordered him to empty his pockets. Kenneth

raised his hands. The man shot a gun into the air and ripped a necklace from

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Kenneth's neck. Joseph heard the commotion and returned to assist Kenneth.

Joseph did not see the gunman's face but recognized the gun as a Glock firearm,

To preventthe gunman from shootingKennet'h, Joseph grabbedthe,man's arm.

Galipo observed the struggle and pulled Joseph off the gunman. The gunman

shot Joseph in the stomach and fled. During the struggle, the gunman also shot

Kenneth in the neck. Kenneth sustained a spinal cord injury, which resulted

in quadriplegia.

{¶51 DiVincenzo called the police. Officer Daniel Kravanis ("Kravanis")

of the Parma Heights police, responded to the scene. Kravanis testified that

there was a`Yresh blanket" of snow on the ground and that he observed a single

set of footprints leaving 'L'he scene. He followed the footprints past two

apartment complexes, through a parking lot, and up to the entrance of another

apartment 'building.

{¶6} Although Kenneth was the only witness who saw the gunman's

face, a11 the witnesses agreed the suspect was a stocky, white, balding male,

approximately 5'6" tall, and wearing a hooded sweatshirt. When Kravanis

reached the end of footprints, he observed a person who matched the

description. This person, who was later identified as Adam Cassano

("Cassano"), told Kravanis that he had just arrived at the apartment. Moments

later, a second man, who was later identified as Glenn, exited the building and

greeted Cassano. In resporise to questioning, Glenn told Kravanis he had been

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with his friends on the third floor all night. However, when Kravanis

questioned the men in the apartment, they informed him that Glenn had just

arrived; and that Cassano had -been with them in the apartment all night:

{¶7} Detective Daniel Heinz ("Heinz") of the Parma police testified that

during his investigation of the crime scene, he found a "fired bullet" and two

spent shell casings near a blood stain in the parking lot. Jonathan Gardner

("Gardner"),. a firearms expert froLn the Bureau of Criminal Investigation,

testified that the fired buUet and the shell casings recovered from the scene

came from a 9mm Glock fzrearm.

{¶8} Glenn told police he intended to walk home from Kenneth's

apartment upon their return from the bar. Parma police detective Michael

Klein ("Klein") determined that Glenn's residence was located midwaybetween

the bar and Kenneth's apartment, and that the distance between Kenneth's and

Glenn's apartments was approximately two miles. He doubted Glenn's claim

that he intended to walk home on a cold snowy night at 2:30 a.m. after a night

of drinking when Kenneth could have easily dropped him off as they passed his

residence on the way home. Further, at a police interview, Glenn denied

leaving his car at Kenneth's address. However, further investigation revealed

that Glenn's car was in fact parked at the crime scene.

{¶9} As a result of numerous inconsistencies in his story, police suspected

Glenn was involved in the shooting and obtained a record of his cell phone

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activity. These records showed that he sent and received several text messages

to the same phone number shortly before the shooting. The messages seemed

to direct the recipient to the victims' location.

{¶10) The State called John Brogan of Verizon Wireless to verify the

authenticity of Glenn's cell phone records and the records of the unidentified

recipient of Glenn's messages. The recipient used a Boost Mobile cell phone

("Boost Mobile phone"), which is a pay-as-you-go phone that keeps no subscriber

information. The Verizon records established that Glenn periodically informed

the user of the Boost Mobile phone of his whereabouts and activities during the

night. One message from the Boost Mobile phone to Glenn's phone stated:

"Keep nie updated." A message from Glenn's phone to the Boost Mobile phone

stated: "I'll callyou again once I get a chance," At 1:24 a.m., a message from the

Boost Mobile phone to Glenn's phone asked: "Which complex?" Moments later,

a message from Glenn's phone replied: "It's in Forrest Ridge. You would see

my car." At 1:31 a.m., a message from the Boost Mobile phone stated: "I'm

walking around here. All the cars got snow on them by the pools or farther

download" A message from Glenn's phone responded, "My car right there."

Still unable to find Glenn's car, the recipient of Glenn's messages complained:

"There are a lot of buildings is BT the side street?" Finally, at 2:31 a.m., a

message from Glenn's phone informed: "We on our way."

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{4F 11} Police further discovered that the Boost Mobile phone made calls

to a landline telephone at Cassano's mother's house, where Cassano lived. '!'he

day after Cassano was -interviewed by police; Glenn called the Boost Mobile

phone, received no answer, and immediately called the landline at.the Cassano

home. Using this information, the police obtained a search warrant, searched

the Cassano home, and found a large quantity of firearms. Detective Klein

testified that he also recovered a clip belonging to a nine millimeter Glock

handgun and a photo of Cassano and Glenn with an identified female. The.

firearm used in the crimes, however, was never recovered.

ۦ12} At the conclusion of the trial, the court found Glenn guilty of four

counts of felonious assault and two counts of aggravated robbery. All the

charges included one- and three-year firearm specifications. The court merged

Counts 4 and 5, which alleged felonious assault on Kenneth, and Counts 11 and

12, which alleged felonious assault on Joseph. The court sentenced Glenn to an

aggregate 16-year prison term with mandatory five years' postrelease control.

Glenn now appeals, raising four assignments of error.

Sufficiency and Manifest Weig:ht

{¶ 13} In his first and second assignments of error, Glenn argues there is

insufficient evidence to support his convictions and that his convictions are not

supported by the manifest weight of the evidence. Glenn contends there was

insufficient evidence to support the convictions because none of the witnesses

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could identify Cassano as the gunman and there is no evidence linking him to

the gunman. He also cont'ends the evidence of text messaging lacked s'ubstance

and-probative value.- V(re ad-dress these assigned-errors. together because. they ....

are closely related.

{¶14} The test for sufficiency requires a determination of' whether the

prosecution met its burden of production a't trial. State u. Thorrtpkins, 78 Ohio

St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 942

(1991), paragraph two of the syllabus. Further, "proof may be made by

circumstantial evidence as well as by real evidence and direct or testimonial

evidence, or any combination." Id. at 272.

{¶15} A challenge to the manifest weight of the evidence attacks the

verdict in light of the State's burden of proof beyond a reasonable doubt.

Thompkins at 386-87. A reviewing court may reverse the judgment of

conviction if it appears that the trier of fact "clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered." Id. A finding that a conviction was supported by the

manifest weight of the evidence necessarily includes a finding of sufficiency. Id.

at 388.

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{¶16} Glenn claims the text inessages constituted social communication

between friends rather than aiding and abetting a crime. However, as

-previously stated, messages-sent from Glenn's-p-hoae-to•the Boost-^NIobile p-hone --

directed the recipient to the victims' location at the same time the shooting

occurred. The recipient of Glenn's messages not only asked for periodic updates

on Glenn's present location, but also sought clarification of the location of

Glenn's car. The last message sent from Glenn's phone before the robbery

simply stated: "We on the way." None of these messages, however, were offered

for the truth of their contents. Thus, they did not constitute hearsay.

{¶17} DiVincenzo testified that she observed Glenn send and receive

numerous text messages the night of the shooting. While they were driving

back to Kenneth's apartment from the bar, she observed Glenn "being sneaky

on the phone, like trying to hide it in-between his legs." The text messages

coupled with the presence of an armed robber waiting for victims to arrive at

2:30 a.m. on a cold snowy night allowed the trier of fact to reasonably conclude

that Glenn directed the robber to this location at the precise time the group

returned. It is dou'btful that a random robber would lie in wait in the cold at

2:30 a.m. unless he knew the victim would 'be arriving shortly.

(118) Finally, Glenn argues that because the evidence linking Cassano to

the crime is insufficient, the evidence of Glenn's participation in the crime is

likewise insufficient. We disagree.

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{^f 19} Glenn asserts that because none of the witnesses at the shooting

could identify Cassano from the photo arrays, the evidence failed to prove that

-C-assano-was-the gunman: However;the-State usedcircumstantialevidenee-to -

prove Cassano's role in the crimes. Although the witnesses were unable to

identify Cassano as the shooter, they all provided the saine general description

of his height and weight, baldness, and hooded sweatshirt-

{¶'20} Moreover, circumstantial evidence proved Cassano used the Boost

Mobile phone on the night the crimes were committed. First, Officer Kravanis

met hiin near the crime scene shortly after the shooting. Cassano falsely

informed Kravanis that he had just arrived at the apartment, apparently

attempting to distance himself from the crime. The cell phone records showed

that someone using the Boost Mobile phone called the Cassano house. The

records also showed that when Glenn called the Boost Mobile phone and received

no answer, he immediately called the landline at Cassano's home, obviously

trying to reach the person who usually answers the Boost Mobile phone. Each

of these facts, considered alone, is innocuous, However, when all the facts are

considered together, they tell the story of how Glenn and Cassano conspired to

ro'b Kenneth, whom they knew carried a large amount of cash. It is not clear

whether Joseph was a premeditated target, but the evidence is clear he was a

victim of their conspiracy.

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(¶ 21) Therefore, there is sufficient evidence to support the convictions,

and the convictions are not against the manifest weight of the evidence.

-{-¶22} The first. and--secend--assignmen-ts-oferror are overruled.

Text Message Evidence

{¶ 23} In his third assignment of error, Glenn argues the court erroneously

admitted evidence of text messages into evidence. He contends the evidence was

not properly authe.nticated under Evid.R. 901(A), and that the evidence

constituted inadmissible hearsay.

{¶24} First, as we noted above, the messages were not offered for the truth

of their contents and thus are not hearsay. Even if considered hearsay, however,

they fit within an exception to the hearsay rule,

{¶25} Evid.R. 901 governs the authentication of demonstrative evidence

such as recordings of telephone conversations and text messages. The threshold

for admission is quite low, as the proponent need only submit "evidence

sufficient to support a finding that the matter in question is what its proponent

claims." Evid.R. 901(A). This means that "the proponent must present

foundational evidence that is sufficient to constitute a rational basis for a jury

to decide that the primary evidence is what its proponent claims it to be." State

u, Payton, 4th Dist. No. 01CA2606, 2002 WL 184922 (Jan. 25, 2002). A

proponent may demonstrate genuineness or authenticity through direct or

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circumstantial evidence. State v. Williams, 64 Ohio App.2d 271, 274, 413 N.E.2d

1212 (8th Dist. 1979).

{9126}-;Efexxsay-is generally net acFmissible-unless it falts-withia-one-of-the -

recognized exceptions. Evid.R. 802; State u. Steffen, 31 Ohio St.3d 1.11, 119, 509

N.E.2d 383 (1987). Evid.R. 803(6) provides a hearsay exception for regularly

recorded business records. A telephone or cell phone record may fall within the

business record exception provided under 803(6), if properly authenticated,

State u. Hirtzinger, 124 Ohio App.3d 40, 49, 705 N.E.2d 395 (2d Dist:1997); State

u. Knox, 18 Ohio App.3d 36, 37, 480 N.E.2d 120 (9th Dist.1984). Evid.R. 803(6)

provides:

A m.einorandum, report, record, or data compilation, in any form, ofacts, events, or conditions, made at or near the time by, or frominform.ation transmitted by, a person with knowledge, if kept in thecourse of a regularly conducted business activity, and if it was theregular practice of that business activity to make the memorandum,report, record, or data compilation, all as shown by the testimony ofthe custodian or other qualified witness or as provided by Rule901(B)(10), unless the source of information or the method orcircumstances of preparation indicate lack of trustworthiness. Theterm `business' as used in this paragraph includes business,instit•ation, association, profession, occupation, and calling of everykind, whether or not conducted for profit.

{1127} Thus, the rule requires that a custodian, or other qualified witness,

testify as to the regularity and reliability of the business activity involved in the

creation of the record. While the witness providing this foundational testimony

need not have firsthand knowledge of the transaction, he or she must be

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sufficiently familiar with the operation of the business and with the

circumstances of the record's preparation, maintenance, and retrieval.

IWrtzinger at-49 - -

{¶28} The State called a Verizon representative, John Brogan, to lay the

foundation and to authenticate Glenn's cell phone.records. Brogan, testifying as

a custodian of records, stated that Verizon regularly maintains a detailed list of

the identities of their custoiners and their customers' cell phone usage. He

explained that computers automatically record incoming and outgoing calls, call

duration, and content. There was no evidence to suggest that the automatic

recording of cell phone activity was unreliable. Moreover, he testified that

Verizon maintains these records in the regular course of business for billing and

rate plan purposes, and Verizon often makes this information available to police

as a courtesy to law enforcement. Based on his testimony, we find that Brogan

properly authenticated the cell phone records as business records, which are

excepted from the hearsay rule.

{4129} Therefore, the third assignment of error is overruled.

Consecutive Sentences

{1730} Tn his fourth assignment of error, Glenn argues the trial court erred

by sentencing him to three consecutive three-year terms on the firearm

specifications. He contends the court was required by 'law to merge multiple

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firearm specifications for sentencing if the specifications involve the same "act

or transaction:" In support of this argument, Glenn relies on R.C. 2929.14(D)(1).

{¶3Y}-R:C: 2929.14(D)(1)(b), as it - existed -at-the time-of-sentencing;

prohibited a trial court from imposing more than one prison term for multiple

firearm specifications if the specifications were commi'tted as part of the same

act or transaction. However, R.C. 2929.14(D)(1)(g) provided an exception for

certain felonies including felonious assault and aggravated robbery. R.C.

2929.14(D)(1)(g)i stated:

If an offender is convicted of or pleads guilty to two or more felonies,if one or more of those felonies is aggravated murder, murder,attempted aggravated murder, attempted murder, aggravatedrobbery, felonious assault, or rape, and if the offender is convictedof or pleads guilty to a specification of the type described underdivision (D)(1)(a) of this section in connection with two or more ofthe felonies, the sentencing court shall impose on the offender theprison term specified under division (D)(1)(a) of this section for eachof the two most serious specifications of which the offender isconvicted or to which the offender pleads guilty and, in itsdiscretion, also may impose on the offender the prison term specifiedunder that division for any or all of the remaining specifications.

{¶32} The sentencing entry states that Glenn was found guilty of four

counts of felonious assault (Counts 4, 5, 11, and 12) and two counts of

aggravated robbery (Counts 6 and 7). All of these charges included one- and

three-year firearm specifications. Under R.C. 2929.14(D)(1)(g), the court was

required to impose prison terms for the two most serious firearm specifications

1 R.C. 2929.14, as amended by H.S. 86, provides the same language in

what is now R.C. 292914(13)(1)(g).

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against that victim and had discretion to impose a sentence for the third firearm

specification. State v. Worth, lOth Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 96.

Glenn--does--not-contend that-the -court- abused its discretion by -imposing --a- ._..

sentence fox• the third firearm specification. Because the sentence was not

contrary to law, and Glenn offers no reason to question the court's discretion, we

find no error.

{¶33} The fourth 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 ap'peal:

It is ordered that a special mandate issue out of this court directi'ng the

common pleas court to carry this judgment into execution. The conviction

having been affirmed, any bail pending appeal is terminated.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

NIARY J. BOYLE, P.J., andMARY EILEEN KILBANE, J., CONCUR

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CC 97 1P7Y3

EbB OtatQ ot ®blo, 1 ss.Cuyahoga County. J I, GLRA,LD E, FTJ&RST, Cletk of the Court of

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

reqaired by the laws otvtlxe S!^e of Ohiojo be, kept, hezeby certify that the foregoing is taken and copied

from the Journal

of rhe proceedings of the Court of Appealstwifhin and for said Cuyahoga Cou y, and that the sai oregoing

copy has been compared by me with the original entry on said Jounial VU-60 ^

and that the same is correct transcript thereof.

.3A lEe8timottp V( ereef, . 1 do hereunto subscribe my nanie officially,

and affix the seal of said court, at the ^ayrt34eu,e in the City of

Cleveland* said Couut

day of

By D

thia

ER4

A.D. 20

FUIFRS'T,) Clerk of

n

iurts

Deputy C'lerk

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