Phil Trexler

A state appellate court has ordered a new trial for an Akron man convicted of robbery despite exonerating testimony from the only victim eyewitness.

In the rare decision wiping out the conviction, the 9th District Court of Appeals ruling released Friday criticizes the state for the weak evidence used to convict 20-year-old Robert Dion Brown.

Prosecutors must now decide whether to try the case a second time or dismiss the indictment. A spokeswoman for Prosecutor Sherri Bevan Walsh said Friday that the office is still reviewing the ruling.

Appellate Judge Donna Carr wrote in the court’s decision that “the evidence weighs heavily against the conviction” of Brown.

“For these reasons, we conclude that this is an exceptional case in which the weight of the evidence at trial weighs heavily against the conclusion that Brown is the person who” committed the robbery, she wrote.

County prosecutors were contesting the appeal until this week when the court ruling came down. The case now goes before Judge Tom Parker for a potential trial.

Brown has already served about 14 months of a six-year prison term for his conviction on aggravated robbery charges in Summit County Common Pleas Court.

Visiting Judge Patricia A. Cosgrove heard the case without a jury. It was Brown’s decision to bypass a trial by jury.

The 3 to 0 appellate court ruling details how Brown was first established as a suspect in the September 2011 robbery of the EuroGyro restaurant on East Exchange Street in Akron. It also details how the state’s only eyewitness — the worker who was robbed — said Brown was not the robber.

Akron police detectives initially targeted Brown shortly after the heist because of his arrests for gun possession around the same time and in the same neighborhood. They also noted his resemblance to the robber’s description, although Brown is smaller than the description given by the worker.

Detectives also had video surveillance footage of the robber and his tattoos, but no witness could say that the image was Brown.

A worker who witnessed the robbery testified that he knew Brown as a regular customer. He told attorneys that Brown was not the suspect who wore a partial mask during the heist.

Brown was represented in his state appeal by Canton attorney Rodney Baca. The Ohio Public Defender’s Office took up a second appeal for post-conviction relief. Neither appellate attorneys could be reached for comment Friday afternoon.

Most damaging to Brown’s case, according to his appellate attorneys, was the decision by the defense before trial to have Brown take a polygraph and allow the results to be used in court, regardless of the outcome.

An examiner testified that Brown failed the lie detector test, court records show. Appellate attorneys contend prosecutors had no other viable evidence than the results of the lie detector test.

The polygraph test, however, “does not tend to prove or disprove any element of the crime,” Carr wrote in her decision, which was also signed by Judges Eve Belfance and Beth Whitmore.

Brown also offered an alibi from multiple witnesses for his whereabouts at the time of the heist, attorneys said. There was no physical evidence linking Brown to the robbery.

Phil Trexler can be reached at 330-996-3717 or ptrexler@thebeaconjournal.com. He can be followed on Twitter at www.twitter.com/PhilTrexler.