State v. McDonald-Glasco ( 2018 )

[Cite as State v. McDonald-Glasco, 2018-Ohio-1918.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-368
(C.P.C. No. 16CR-5691)
v. :
(REGULAR CALENDAR)
Tyrik M. McDonald-Glasco, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 15, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Nemann Law Offices, LLC, and Adam Lee
Nemann, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Tyrik M. McDonald-Glasco, appeals from a judgment
entry of the Franklin County Court of Common Pleas finding him guilty of one count of
murder with a firearm specification and one count of intimidation of a crime witness. For
the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed October 13, 2016, plaintiff-appellee, State of Ohio,
charged McDonald-Glasco with one count of murder in violation of R.C. 2903.02, an
unspecified felony; one count of felony murder in violation of R.C. 2903.02, an unspecified
felony; and one count of intimidation of a witness in a criminal case in violation of R.C.
2921.04, a third-degree felony. Both murder charges carried accompanying firearm
No. 17AP-368 2
specifications pursuant to R.C. 2941.145(A). The state charged McDonald-Glasco's
codefendant, Dajuan A. Crowely, with these same offenses except intimidation of a witness.
All charges related to the shooting death of Daegio D. Heron. McDonald-Glasco entered a
plea of not guilty.
{¶ 3} At a jury trial beginning May 1, 2017, the state asked Anferny Slaughter to
identify individuals from surveillance camera footage from the afternoon of October 2,
2016. Slaughter identified himself, McDonald-Glasco, Taneja Williams, Tivon Green, and
Dajuan Crowley, who goes by the nickname "Boobie." The state then played the
surveillance footage in court and asked Slaughter to describe what was happening in those
images.
{¶ 4} Slaughter testified that on the day Heron was killed, he was with Taneja near
the Graham store. There was a group of children outside the store, and Slaughter identified
one of those children as one of the girls who would later witness the shooting. Heron was
also outside the Graham store that day. Slaughter said he frequently bought marijuana
from Heron.
{¶ 5} On the afternoon of October 2, 2016, Slaughter said he and Taneja went to
McDonald-Glasco's house on Hildreth Avenue, and when they arrived they joined
McDonald-Glasco, Crowley, and Green. Shortly after 3:30 p.m., Slaughter said Taneja told
him that the group planned to fight Heron that day. At that point, the group of five—
Slaughter, McDonald-Glasco, Taneja, Crowley, and Green—went to the porch of an
abandoned house on Greenway Avenue where they discussed their plan.
{¶ 6} A short time later, Slaughter said Taneja called Heron under the guise of
meeting him to purchase marijuana. At that point, the five of them left the abandoned
house. Taneja walked up the street and turned down an alley where Heron was supposed
to meet her, and McDonald-Glasco, Crowely, Green, and Slaughter went down Greenway
Avenue and entered a different alley behind Heron's house. Slaughter said the two alleys
intersect in a "T" behind Heron's house.
{¶ 7} Slaughter testified he rode ahead of the group on his bicycle to confirm
whether Heron had arrived in the alley. After spotting Heron, Slaughter returned and told
Crowley, McDonald-Glasco, and Green that Heron was there. When the three men entered
the alley, McDonald-Glasco had put his hood up.
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{¶ 8} Slaughter testified that Taneja met with Heron in the alley, as planned, and
then Taneja walked out of the alley. At that point, Slaughter said he saw Green and Crowley
walk up to Heron while McDonald-Glasco waited in the other alley in view of the others.
Slaughter testified that he was talking to two little girls in the alley when he heard a gun
cock followed by someone saying "No, no, don't do that," and then the sound of two
gunshots. (Tr. Vol. 1 at 153.) Shortly after that, Slaughter said he saw Green and Crowley
run past him while Green put a gun in his pants and Crowley put a gun under his shirt.
{¶ 9} Additional surveillance footage showed McDonald-Glasco walking out of the
alley after the shooting. After that, Slaughter said he returned to his aunt's house where he
smoked marijuana with Taneja. Surveillance video from the Graham store a few minutes
after the shooting showed Green, Crowley, and McDonald-Glasco walking in the same
general direction, although McDonald-Glasco was not walking with Green and Crowley.
{¶ 10} Slaughter testified that when police first interviewed him, he lied about
knowing anything about Heron's death because he was afraid of retaliation from Green.
However, Slaughter said he eventually agreed to testify truthfully in exchange for the state
dismissing the murder charge against him. Slaughter testified that when Heron was shot,
Green, Crowley, and a third man in a white shirt were all in the alley with Heron, and that
himself, McDonald-Glasco, and two little girls were nearby in the other alley within view of
the shooting.
{¶ 11} Michael B. Williams, Jr., a homeless Army veteran living on the streets of the
east side of Columbus, testified he was in the alley when Heron was shot. Michael identified
a picture of Green as the shooter, and he said that at one point, Green pointed the gun at
him. Michael testified McDonald-Glasco was present when Green shot Heron.
Additionally, Michael said he also saw two little girls in the alley as well as a young man on
a bicycle. Michael testified that after the shooting, one of the men pointed a gun at the little
girls and threatened them before everyone left the alleys.
{¶ 12} Michael testified he did not immediately report what he had seen to police
but, after speaking to Heron's girlfriend, he decided to come forward as a witness. In a
photo array, Michael identified Green and Crowley and told police he thought that
McDonald-Glasco looked like the other person he saw in the alley the day of the shooting.
No. 17AP-368 4
Aaron Mall, a detective with the Columbus Division of Police, testified about the
identification procedure that Michael participated in.
{¶ 13} Shabie Flowers, Heron's girlfriend, testified that she lived with Heron at the
corner of Greenway and Taylor Avenues in October 2016. Flowers testified Heron sold
marijuana and performed electrical services work to make a living, often selling marijuana
in the alley behind their house. Typically, Flowers said that people who wanted to buy
marijuana from Heron would call Heron's phone, and then Heron would ride his bicycle
out to the alley to complete the transaction. Flowers testified she knew McDonald-Glasco,
Taneja, Crowley, and Slaughter from the neighborhood. However, Flowers said she did not
know Green.
{¶ 14} Flowers testified she was at home when the shooting occurred. She said that
after Heron left the house that day, she heard three loud, close gunshots, and she ran out of
the house. The home security video showed Taneja and McDonald-Glasco leaving the alley,
and Flowers said she asked McDonald-Glasco what he had just done. Flowers testified
McDonald-Glasco responded, "I don't know. I got to get up out of here." (Tr. Vol. 2 at 392.)
After that, Flowers said two little girls came running out the alley, screaming that three
young men just killed Heron and threatened the little girls not to say anything.
{¶ 15} Flowers testified she grabbed her gun and ran down the alley to Heron, where
she found him lying face down with a gunshot wound to the back of his head. Flowers said
she turned Heron over and tried to revive him. She testified she removed everything from
Heron's pockets. When police arrived, Flowers said she returned to her house and reviewed
the home security videos, showing them to detectives. Within 15 minutes of the shooting,
Flowers said her sister identified McDonald-Glasco on the video.
{¶ 16} The next day, Flowers said McDonald-Glasco rode by her house in a gold or
bronze vehicle, rolled down the window, pointed a gun at her, and told her that if she kept
talking, she would be next. Flowers testified she called the police, and they asked her to
help identify the vehicle. Flowers said she identified a photograph of a vehicle that looked
like the vehicle McDonald-Glasco was in when he threatened her.
{¶ 17} At the conclusion of the trial, the jury returned a not guilty verdict as to the
first count of murder; however, the jury found McDonald-Glasco guilty of the murder as an
aider and abettor charge, with accompanying firearm specification, as well as the charge of
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intimidation of a witness. Following a May 10, 2017 sentencing hearing, the trial court
sentenced McDonald-Glasco to an aggregate sentence of 18 years to life in prison. The trial
court journalized McDonald-Glasco's convictions and sentence in a May 12, 2017 judgment
entry. McDonald-Glasco timely appeals.
II. Assignments of Error
{¶ 18} McDonald-Glasco assigns the following errors for our review:
[1.] The evidence upon which appellant's conviction is based is
insufficient as a matter of law.
[2.] The trial court erred to the prejudice of appellant by
instructing the jury on the offense of complicity to murder by
aiding and abetting, as there was no evidence that appellant
shared the criminal intent of the principal offender;
accordingly, the evidence adduced at trial, viewed in a light
most favorable to the prosecution, supports appellant's
involvement only as an accessory after the fact, a crime not
recognized in Ohio.
[3.] The verdicts were against the manifest weight of the
evidence.
[4.] The trial court erred when it overruled appellant's motion
for acquittal pursuant to Criminal Rule 29.
III. First Assignment of Error – Sufficiency of the Evidence
{¶ 19} In his first assignment of error, McDonald-Glasco argues there was
insufficient evidence to support his convictions.
{¶ 20} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37.
A. Murder
{¶ 21} McDonald-Glasco was convicted of felony murder with the underlying felony
being felonious assault. R.C. 2903.02(B) prohibits causing the death of another person as
No. 17AP-368 6
a proximate result of committing or attempting to commit a first- or second-degree felony
offense of violence. In turn, R.C. 2903.11(A)(2) prohibits a person from knowingly causing
or attempting to cause physical harm to another by means of a deadly weapon. Moreover,
R.C. 2923.03(A) provides, in pertinent part, that "[n]o person, acting with the kind of
culpability required for the commission of any offense, shall * * * [s]olicit or procure
another to commit the offense" or "[a]id or abet another in committing the offense." R.C.
2923.03(A)(1) and (2).
{¶ 22} Here, McDonald-Glasco argues there was insufficient evidence to establish
his complicity in the murder through the aider and abettor theory. More specifically,
McDonald-Glasco argues all the evidence tending to establish his involvement in the
shooting was entirely circumstantial. However, "[c]ircumstantial evidence is not less
probative than direct evidence, and, in some instances, is even more reliable." (Internal
quotations omitted.) State v. Nicely, 39 Ohio St. 3d 147, 151 (1988).
{¶ 23} As the Supreme Court of Ohio has held, "to support a conviction for
complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), 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." State v. Johnson, 93 Ohio St. 3d 240, 245-46 (2001). Additionally,
"[s]uch intent may be inferred from the circumstances surrounding the crime." Id.
{¶ 24} Though McDonald-Glasco asserts there was insufficient evidence to show he
participated in a "set up" to lure Heron into the alley, Slaughter testified in detail about
McDonald-Glasco's participation in arranging for Heron to be present in the alley under
the guise of selling marijuana so that the group could fight him. Additionally, Michael
placed McDonald-Glasco in the alley at the time of the shooting. Considering this evidence
in a light most favorable to the state, we conclude there was sufficient evidence to establish
McDonald-Glasco's participation in Heron's death.
B. Intimidation of a Witness
{¶ 25} McDonald-Glasco was also convicted of intimidation a witness. Pursuant to
R.C. 2921.04(B)(2), "[n]o person, knowingly and by force or by unlawful threat of harm to
any person or property or by unlawful threat to commit any offense of calumny against any
No. 17AP-368 7
person, shall attempt to influence, intimidate, or hinder * * * a witness to a criminal or
delinquent act by reason of the person being a witness to that act."
{¶ 26} The only argument McDonald-Glasco makes with respect to the sufficiency
of the evidence of his intimidation of a witness conviction is that Flowers' testimony was
not credible. However, "in a sufficiency of the evidence review, an appellate court does not
engage in a determination of witness credibility; rather, it essentially assumes the state's
witnesses testified truthfully and determines if that testimony satisfies each element of the
crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4. Flowers, the
victim's girlfriend, testified that the day after the shooting, McDonald-Glasco drove by her
house, pointed a gun at her, and told her that if she kept talking, she would be next. We
conclude this was sufficient evidence to convict McDonald-Glasco of the intimidation of a
witness.
{¶ 27} Having determined there was sufficient evidence to support McDonald-
Glasco's convictions of murder and intimidation of a witness, we overrule McDonald-
Glasco's first assignment of error.
IV. Second Assignment of Error – Jury Instructions
{¶ 28} In his second assignment of error, McDonald-Glasco argues the trial court
erred in instructing the jury on the offense of complicity to murder as an aider and abettor.
More specifically, McDonald-Glasco asserts the trial court erred in failing to include a more
thorough definition of the act of complicity.
{¶ 29} Generally, the trial court has discretion to decide to give or refuse a particular
instruction, and an appellate court will not disturb that decision absent an abuse of
discretion. State v. Lipkins, 10th Dist. No. 16AP-616, 2017-Ohio-4085, ¶ 28. An abuse of
discretion implies that the court's attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 30} "The court must give all instructions that are relevant and necessary for the
jury to weigh the evidence and discharge its duty as the factfinder." State v. Joy, 74 Ohio
St.3d 178, 181 (1995), citing State v. Comen, 50 Ohio St. 3d 206 (1990), paragraph two of
the syllabus. Conversely, "[i]t is well established that the trial court will not instruct the
jury where there is no evidence to support an issue." Murphy v. Carrollton Mfg. Co., 61
Ohio St. 3d 585, 591 (1991), citing Riley v. Cincinnati, 46 Ohio St. 2d 287 (1976). Thus, in
No. 17AP-368 8
reviewing a record to determine whether there is sufficient evidence to support the giving
of an instruction, "an appellate court should determine whether the record contains
evidence from which reasonable minds might reach the conclusion sought by the
instruction." Murphy at 591, citing Feterle v. Huettner, 28 Ohio St. 2d 54 (1971).
{¶ 31} In instructing the jury on complicity, the trial court stated:
Before you can find the Defendant guilty of a crime or
specification as an aider and abettor, you must find beyond a
reasonable doubt that on or about the 2nd day of October,
2016, in Franklin County, Ohio, the Defendant solicited or
procured another to commit the offense or aided or abetted
another in committing the offense with the same knowledge or
purpose as required by the offense under consideration.
Before you can find the Defendant guilty of complicity by aiding
and abetting, you must find beyond a reasonable doubt that the
Defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal offender in the commission of
the offense and that the Defendant shared the criminal intent
of the principal offender.
Such intent may be inferred from the circumstances
surrounding the events, including, but not limited to, presence,
companionship, and conduct before and after the offense was
committed.
The mere presence of the Defendant at the scene of the offense
is not sufficient to prove in and of itself that the Defendant was
an aider or abettor.
One does not aid or abet if he merely sees a crime being
committed. One cannot be criminally liable as an accessory
after the crime has been committed.
Aid means to help, assist, or strengthen.
Abet means to encourage, counsel, incite, or assist.
A common purpose among two or more people to commit a
crime need not be shown by positive evidence but may be
inferred from circumstances surrounding the act and from
Defendant's subsequent conduct.
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Criminal intent may be inferred form presence,
companionship, and conduct before and after the offense is
committed.
In addition mere presence can be enough if it is intended to and
does aid the primary offender.
It is no defense to a charge of complicity that no person with
whom the Defendant was complicit has been convicted as a
principal offender.
(Tr. Vol. 4 at 846-48.)
{¶ 32} Though he agrees the trial court included much of the necessary language in
a complicity instruction, McDonald-Glasco argues the trial court nonetheless erred in
instructing the jury when it declined to also include (1) language requiring proof of a
conspiracy to do the act; (2) an explanation that mere presence at the scene of the crime
was not enough to convict McDonald-Glasco; and (3) language stating McDonald-Glasco's
failure to object or his mere knowledge or approval of the crime was not enough to convict
him of complicity.
{¶ 33} First, as to McDonald-Glasco's argument regarding proof of a conspiracy, we
note it was not necessary for the state to prove conspiracy in order to convict a defendant
of complicity under R.C. 2923.03(A)(1) or (2). Thus, the trial court did not abuse its
discretion in declining to give an instruction on conspiracy mirroring R.C. 2923.03(A)(3)
where it had already adequately instructed the jury on the alternative theories of complicity
contained in R.C. 2923.03(A)(1) and (2).
{¶ 34} Second, the trial court did instruct the jury that a defendant's mere presence
at the scene of a crime is not enough to convict a defendant of complicity. Thus, there is no
merit to McDonald-Glasco's argument that the trial court abused its discretion in failing to
instruct the jury on this point.
{¶ 35} Finally, McDonald-Glasco argues the trial court erred by not providing a
more thorough explanation to the jury that McDonald-Glasco's failure to object or his mere
knowledge or approval was not enough to convict him of complicity. However, in
instructing the jury, the trial court gave a complete instruction of the offense of complicity,
defined the pertinent terms, and instructed the jury on finding that McDonald-Glasco must
No. 17AP-368 10
have possessed the requisite mens rea. See State v. Brunner, 10th Dist. No. 15AP-97, 2015-
Ohio-4281, ¶ 34. Viewed in context of the overall charge to the jury, we find no abuse of
discretion in the trial court's decision not to include the additional language requested by
McDonald-Glasco. See State v. Price, 60 Ohio St. 2d 136 (1979), paragraph four of the
syllabus (stating "[a] single instruction to a jury may not be judged in artificial isolation but
must be viewed in the context of the overall charge").
{¶ 36} Thus, because we conclude the trial court did not abuse its discretion in
instructing the jury as to the requirements of McDonald-Glasco's complicity, we overrule
McDonald-Glasco's second assignment of error.
V. Third Assignment of Error – Manifest Weight of the Evidence
{¶ 37} In his third assignment of error, McDonald-Glasco argues the manifest
weight of the evidence does not support his convictions.
{¶ 38} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "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." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42
(1982). Determinations of credibility and weight of the testimony are primarily for the trier
of fact. State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus. Thus,
the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all,
part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 39} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, 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." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
No. 17AP-368 11
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App. 3d 172, 175 (1st Dist.1983).
{¶ 40} McDonald-Glasco argues his convictions are against the manifest weight of
the evidence because the witnesses' testimony was not credible. However, McDonald-
Glasco does not offer specific reasons the witnesses allegedly lacked credibility. To the
extent McDonald-Glasco intended to argue Slaughter's testimony lacked credibility
because of his admitted involvement in the scheme to lure Heron into the alley, we note
that it is within the province of the jury to believe Slaughter's testimony in spite of his
admitted involvement and plea agreement with the state. State v. Connally, 10th Dist. No.
16AP-53, 2016-Ohio-7573, ¶ 41, citing State v. Berry, 10th Dist. No. 10AP-1187, 2011-Ohio-
6452, ¶ 18 (noting the jury is in the best position to assess the credibility of a codefendant).
Additionally, our review of the transcript indicates Slaughter's testimony "was not so
incredible as to render appellant's convictions against the manifest weight of the evidence."
Berry at ¶ 18, citing State v. Thompson, 10th Dist. No. 07AP-491, 2008-Ohio-2017, ¶ 34.
{¶ 41} Additionally, the testimony of several witnesses placed McDonald-Glasco
with the group that sought to lure Heron into the alley, and surveillance images placed
McDonald-Glasco with this group both before and after the shooting. Also, McDonald-
Glasco's assertion that his convictions are against the manifest weight of the evidence
because of the state's reliance on circumstantial evidence is unpersuasive. As this court has
noted, "[i]f [witness] testimony is believed then the lack of fingerprints, DNA, footprints or
any other physical evidence does not render the conviction against the manifest weight of
the evidence." State v. Peeples, 10th Dist. No. 13AP-1026, 2014-Ohio-4064, ¶ 21. Thus,
considering all the evidence, we cannot say the jury lost its way in finding the witnesses'
testimony to be credible and inferring that McDonald-Glasco shared the criminal intent of
Crowley and Green when they lured Heron into the alley and shot him to death.
{¶ 42} Considering all of the evidence together, the jury did not clearly lose its way
in concluding McDonald-Glasco participated as an aider and abettor in Heron's murder or
that McDonald-Glasco threatened Flowers to keep quiet the day after the murder. After an
independent review of the record, we find McDonald-Glasco's convictions are not against
No. 17AP-368 12
the manifest weight of the evidence. Thus, we overrule McDonald-Glasco's third
assignment of error.
VI. Fourth Assignment of Error – Crim.R. 29 Motion for Acquittal
{¶ 43} In his fourth and final assignment of error, McDonald-Glasco argues the trial
court erred in denying his Crim.R. 29 motion for acquittal.
{¶ 44} Crim.R. 29(A) provides that the court, "on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction
of such offense or offenses." Review of the denial of a Crim.R. 29 motion and the sufficiency
of the evidence apply the same standard. State v. Fugate, 10th Dist. No. 12AP-194, 2013-
Ohio-79, ¶ 5, citing State v. Turner, 10th Dist. No. 04AP-364, 2004-Ohio-6609, ¶ 8.
{¶ 45} As we stated above in our resolution of McDonald-Glasco's first assignment
of error, there was sufficient evidence to support McDonald-Glasco's convictions for
murder and intimidation of a witness. Thus, because McDonald-Glasco's Crim.R. 29
motion depends on the same standard as his sufficiency of the evidence argument, we
similarly overrule McDonald-Glasco's fourth and final assignment of error.
VII. Disposition
{¶ 46} Based on the foregoing reasons, the sufficiency and manifest weight of the
evidence supports McDonald-Glasco's convictions, the trial court did not abuse its
discretion in instructing the jury, and the trial court did not err in denying McDonald-
Glasco's Crim.R. 29 motion for acquittal. Having overruled McDonald-Glasco's four
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
BROWN, P.J., and SADLER, J., concur.