State v. Gardner , 2023 Ohio 307 ( 2023 )

[Cite as State v. Gardner, 2023-Ohio-307.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111506
v. :
TIFFANY GARDNER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 2, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-658922-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Andrew F. Rogalski and Caroline Nelson,
Assistant Prosecuting Attorneys, for appellee.
Kelley & Ferraro, L.L.P., and Carl W. Sullivan, for
appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant Tiffany Gardner appeals from her judgment of
conviction, which was rendered after a jury trial. After a thorough review of the facts
and pertinent law, we affirm.
Factual and Procedural History
In May 2021, Gardner was charged in a seven-count indictment with
two counts of aggravated murder, three counts of murder, and one count each of
aggravated robbery and felonious assault.
Prior to trial, plaintiff-appellee the state of Ohio dismissed the two
counts of aggravated murder and one of the murder counts, all of which included
“purposely” as an element of the crimes. The counts that remained for trial were
two counts murder, unclassified felonies, one a violation of R.C. 2903.02(A) and the
other a violation of R.C. 2903.02(B); aggravated robbery, a felony of the first degree
in violation of R.C. 2911.01(A)(3); and felonious assault, a felony of the second
degree in violation of R.C. 2903.11(A)(1).
The charges resulted from the April 14, 2021 fatal beating by two
unknown male assailants of the victim, 70-year-old Leonard Craddock. The state’s
theory of the case was that Gardner was an aider and abettor to the crimes. The
following facts were established by the state’s witnesses at trial.
On the day of the incident, Gardner was shopping at the Family Dollar
on Euclid Avenue in East Cleveland. The store had surveillance cameras that
captured some of the ensuing incident.
Gardner had a see-through plastic pouch with, by her count,
$10,ooo cash in it. She placed the pouch of cash in the child seat section of a
shopping cart. After making her purchases, she retrieved her bags of purchased
items but absentmindedly left her pouch of cash in the cart, which she returned to
the walkway in front of the store.
Shortly after Gardner left, Craddock approached the Family Dollar,
retrieved the shopping cart used by Gardner, saw the pouch of cash in the cart, and
put it in his waistband. Craddock then shopped in the store.
Meanwhile, Gardner apparently realized that she left her cash and went
back into Family Dollar, where she spoke with the store manager. The store
manager viewed footage of a security video, on which she saw Craddock put the
pouch of cash in his waistband. The manager told Gardner what she saw on the
video.
More video surveillance showed Gardner confront Craddock. Gardner
was able to get her pouch of cash back from Craddock. After that confrontation,
Craddock began walking across the street toward another store, AutoZone.
According to the Family Dollar manager, Gardner was “screaming” and “hollering”
as she got in her car and “sped off.” A witness testified that he saw Gardner on her
cell phone and heard her “ranting” about someone taking her money.
Gardner drove to the AutoZone, where Craddock was, and video
recorded herself confronting Craddock outside of the store. The video shows
Gardner exiting her vehicle, approaching Craddock, and repeatedly questioning him
as to why he tried to “rob” her. During this confrontation, Gardner was hitting
Craddock with a wrist wallet. Craddock apologized to her. Gardner was yelling
profanities at Craddock, including threats such as “b**** I’ll f*** your ass up out
here, b****.”
Craddock entered the AutoZone and Gardner followed him. Witnesses
inside AutoZone testified that Gardner was “angry,” “chasing [Craddock]
aggressively,” “hitting him on the head” with the wrist wallet and yelling at him
about stealing from her. Meanwhile, according to the witnesses, Craddock was
“trying to get away from [Gardner],” and was not fighting back. One witness
described Craddock as “crunched over” as Gardner hit him. Gardner was heard
saying, “[I]f I was a man I would do some real damage.”
The AutoZone employees told both Gardner and Craddock to leave the
store. Gardner initially left, but Craddock remained, as one witness described, “to
catch his breath.” Gardner re-entered the store twice. A witness testified that “[i]t
was like she was making sure he was still in the store.” According to the witness,
when Gardner came back into the store Craddock would start hyperventilating.
Outside video surveillance showed a car drive onto the AutoZone
parking lot and two men exiting the car. Gardner walked by the two men and then
turned around and started talking to them. After their conversation, Gardner and
the two men went into the AutoZone. According to one witness in the store, the men
referred to Gardner as “auntie” and made a comment about her “yelling and ranting”
about something that was going on. The witness testified that the men inquired
about oil for their car and then left the store.
The AutoZone witnesses testified that within a few minutes the two
men came back into the store with Gardner. One witness testified that Gardner
looked directly at Craddock and then left the store. The men then went straight to
Craddock and repeatedly demanded that he come outside with them. Craddock
refused. Eventually, the two men “grabbed” and “dragged” Craddock out of the
store.
The witnesses testified that once the two men had Craddock outside,
they brutally attacked him. They described the men as kicking, punching, and
stomping Craddock. One witness testified that “there was no match, it was like [they
were] beating a tiny baby.”
After the attack, Craddock attempted to stand but collapsed to the
ground. Emergency personnel were called. When they arrived, they pronounced
Craddock dead at the scene.
The video surveillance demonstrated that Gardner remained at the
scene for 12 minutes, the time it took the two men to confront and attack Craddock.
Gardner left the scene at the same time the two men left.
An autopsy was performed on Craddock and revealed that he had
seven rib fractures, some of which were displaced fractures. The medical examiner
determined that the fractures punctured Craddock’s right lung. As the air built up
in Craddock’s cavity, it exerted pressure around the lung, making breathing
progressively more difficult. Further, blood outside of the lung increased the
pressure. The pressure continued to build until Craddock went into shock, lost
consciousness, and died. The medical examiner determined that Craddock’s cause
of death was blunt force injury, and his manner of death was homicide.
Gardner was subsequently arrested. She maintained that she did not
know or have any relationship with the two men who beat Craddock. The state
presented some of Gardner’s jail calls to dispute her contention.
During the calls, Gardner stated that an individual she referred to as
“Apple Head” better help pay her bond or she was going to “sing like a bird.”
Gardner learned that “Apple Head” was complaining about paying $5,000 or
$10,000 for her bond, to which she responded, “once it hits, it’s a million dollars for
both of them.” Gardner also stated that she was not going “to do life” for anybody,
and if “push come[s] to shove,” she would “make sure they pop up.” Further,
Gardner was recorded saying that Craddock “caused his own s***, he took s*** from
me.”
Law enforcement obtained a buccal swab from Gardner. They were
unable to link Gardner’s DNA to Craddock’s body or the crime scene.
The defense did not present any witnesses and at the close of the
state’s case made a Crim.R. 29 motion for judgment of acquittal. The trial court
denied the motion. The court instructed the jury, including an instruction on
complicity without objection from the defense.
On the evidence presented, the jury returned a verdict of guilty of one
count of murder and guilty of the sole felonious assault count. The jury found
Gardner not guilty of the other murder count and not guilty of the sole aggravated
robbery count.
The trial court merged the murder and felonious assault counts for the
purpose of sentencing and the state elected to proceed on the murder count. The
trial court sentenced Gardner to life with the possibility of parole after 15 years.
Gardner presents the following assignments of error for our review:
1. Appellant’s conviction is not sustained by sufficient evidence.
2. The jury’s verdict was against the manifest weight of the
evidence.
3. Appellant was unfairly prejudiced by the introduction of
improper and irrelevant evidence.
4. Appellant was prejudiced by trial counsel’s ineffective assistance
of counsel.
Law and Analysis
Evidence Sufficient to Support Conviction; Conviction not Against
Manifest Weight of the Evidence
In her first assignment of error, Gardner contends that the evidence
was insufficient to support the conviction. In her second assignment of error, she
contends that the conviction was against the manifest weight of the evidence. We
combine these assignments of error because they are interrelated.
“A claim of insufficient evidence raises the question whether the
evidence is legally sufficient to support the verdict as a matter of law.”
State v. Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry in
a sufficiency challenge 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 existed beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When making a
sufficiency determination, an appellate court does not review whether the state’s
evidence is to be believed but whether, if believed, the evidence admitted at trial
supports the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-
3375, ¶ 25, citing Thompkins at id. Under a sufficiency challenge, witness credibility
is immaterial; the appellate court must defer to credibility determinations of the
trier of fact and only review issues of law. Parker at ¶ 7.
A manifest weight challenge and a sufficiency of the evidence
challenge are two distinct challenges to the evidence presented. State v. Miree,
8th Dist. Cuyahoga No. 110749, 2022-Ohio-3664, ¶ 30, citing State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. A challenge to the
manifest weight of the evidence “‘involves the inclination of the greater amount of
credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-
856, ¶ 32, quoting Thompkins at id. Weight of the evidence examines “‘the
evidence’s effect of inducing belief.’” Harris at id., quoting Wilson at id., citing
Thompkins at 386-387. In reviewing a manifest-weight claim, the court must
consider all the evidence in the record, the reasonable inferences drawn from it, and
the credibility of the witnesses to determine “‘whether in resolving conflicts in the
evidence, the factfinder clearly lost its way and created such a manifest miscarriage
of justice * * *.’” Harris at id., quoting Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). The discretionary power to
grant a new trial should be reserved for exceptional cases where “‘the evidence
weighs heavily against the conviction.’” Thompkins at id., quoting Martin at 175.
Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence
necessarily includes a finding of sufficiency. State v. McCrary, 10th Dist. Franklin
No. 10AP-881, 2011-Ohio-3161, ¶ 11, citing State v. Braxton, 10th Dist. Franklin
No. 04AP-725, 2005-Ohio-2198, ¶ 15. “[T]hus, a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of
sufficiency.” Id. Manifest weight of the evidence is dispositive here.
Gardner was convicted of felony murder under R.C. 2903.02(B),
which provides in relevant part 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 * * *.” The underlying felony
Gardner was convicted of was felonious assault under R.C. 2903.11(A)(1). That
section provides in relevant part that “[n]o person shall knowingly * * * [c]ause
serious physical harm to another * * *.”
Gardner was convicted of the crimes as an aider and abettor to the two
males who assaulted Craddock. R.C. 2923.03(A), governing complicity provides in
relevant part that “[n]o person, acting with the kind of culpability required for the
commission of an offense, shall * * * [a]id or abet another in committing the
offense.”
To establish that a defendant aided and abetted a crime, the evidence
must prove 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, 754 N.E.2d 796 (2001), syllabus. “Thus, the state must prove
two criminal intents for the accomplice: first that the accomplice had the same
criminal intent as the principal offender and, second, that the accomplice also
intended to help the principal commit the offense.” State v. Middleton,
6th Dist. Lucas No. L-05-1162, 2006-Ohio-6634, ¶ 14, citing State v. Mendoza,
137 Ohio App.3d 336, 343, 738 N.E.2d 822 (3d Dist.2000). In Mendoza, the Third
District interpreted the terms “aid” and “abet” as requiring a showing that the
defendant directed his or her conduct toward the goal of the principal’s criminal
offense. Id. at 344-345.
This court has held that “[t]o be convicted as an aider and abettor such
person must: (1) engage in an overt act ‘with a view’ towards producing the result
for which he [or she] is held; and (2) such person must himself [or herself] possess
the felonious intent that the principal possesses.” State v. Boigner,
8th Dist. Cuyahoga No. 34514, 1976 Ohio App. LEXIS 7630, *3 (Mar. 25, 1976),
citing Woolweaver v. State, 50 Ohio St. 277, 288, 34 N.E. 352 (1893). “It is not
necessary that the accused be in a position to foresee the precise consequence of his
[or her] conduct; only that the consequence be foreseeable in the sense that what
actually transpired was natural and logical in that it was within the scope of the risk
created by his [or her] conduct.” State v. Losey, 23 Ohio App.3d 93, 95-96,
491 N.E.2d 379 (10th Dist.1985).
Ohio law is well-settled that, to convict an offender of complicity, the
state need not establish the principal’s identity. Rather, R.C. 2923.03(C) only
requires that the state prove that a principal committed the offense.
State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040 (1976), paragraph four of the
syllabus, vacated on other grounds, sub nom. Strodes v. Ohio, 438 U.S. 911,
98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978). Thus, conviction of the principal offender is
not a prerequisite to finding a defendant guilty of complicity. See R.C. 2923.03(B)
(“It is no defense to a charge under this section that no person with whom the
accused was in complicity has been convicted as a principal offender.”).
Gardner contends that “[t]his is a mere presence case, end of story.”
It is true that mere presence at the crime scene is insufficient to convict a defendant
under a complicity theory. State v. High, 2018-Ohio-2236, 115 N.E.3d 702, ¶ 23
(8th Dist.). However, “‘[p]articipation in criminal intent may be inferred from
presence, companionship, and conduct before and after the offense is committed.’”
State v. Cartellone, 3 Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981), quoting
State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971); High at id.In other words, the evidence must establish that Gardner was more than a mere
bystander.1 Aiding and abetting may be shown by both direct and circumstantial
evidence. High at id.There is nothing incredible about the jury’s finding that Gardner was
complicitous in the assault and murder of Craddock. Gardner’s contention that all
the evidence showed was that she was upset about her money being taken is belied
by the record. Rather, the record demonstrates that, as the state maintains, Gardner
“was at the center of the conflict from the start to finish.”
After Gardner confronted Craddock at Family Dollar and got her
pouch of money back, she followed him to AutoZone where she confronted him
again and assaulted him herself, albeit not to the extent that the two males did. She
was overheard telling Craddock that “if I was a man I would do some real damage.”
Gardner was also seen talking on her cell phone and overheard “ranting” during the
call about someone stealing her money.
Shortly thereafter, the two males arrived and Gardner talked to them
before all three of them went into the AutoZone where Craddock was. A witness in
the store testified as to what could reasonably be construed as Gardner identifying
Craddock to the two men. There was also witness testimony that the men referred
to Gardner as “auntie,” which further demonstrated that Gardner and the men knew
1 The trial court here instructed the jury that “[t]he mere presence of the defendant
at the scene of the offense is not sufficient to prove in and of itself the defendant was an
aider or abettor.”
each other. Gardner remained on the scene while the two men beat Craddock and
left with them when the beating was over.
After her arrest, Gardner was recorded on jail calls saying that she was
going to “sing like a bird” and it was going to be “a million dollars for both of them”
if a particular individual did not help with her bond money. A reasonable inference
could be made from this evidence that Gardner knew who the assailants were.
A reasonable inference that Gardner possessed the intent of the assailants could be
made from Gardner’s statement on the calls that Craddock “caused his own s***, he
took s*** from me.”
The evidence the state presented was compelling and was not
lessened, as Gardner contends, by the lack of Gardner’s DNA at the crime scene or
forensic evidence from her phone showing who she was talking to when she was
overheard complaining about her money being stolen.
This is not the exceptional case where the jury lost its way. Rather, the
weight of the evidence supports the conviction. Because the weight of the evidence
supports the conviction, the evidence was necessarily sufficient. The first and
second assignments of error are therefore overruled.
No Plain Error in Admission of Jail Calls
In her third assignment of error, Gardner contends that the probative
value of the jail calls was outweighed by its prejudicial effect. No objection to the
calls was made at trial, and therefore we review for plain error.
The failure to object to the admission of evidence at trial waives all but
plain error on appeal. See Crim.R. 30(A); State v. Harris, 2017-Ohio-5594,
92 N.E.3d 1283, ¶ 15 (1st Dist.). “Notice of plain error * * * is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. To prevail on a claim that the trial court committed
plain error, an appellant must demonstrate that an error constitutes an obvious
defect in the trial proceedings and demonstrate that the error affected the outcome
of the trial. State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251,
¶ 23.
Trial courts have a duty “to determine whether testimony is relevant
and to balance its potential probative value against the danger of unfair prejudice.”
State v. Clark, 8th Dist. Cuyahoga No. 95928, 2011-Ohio-4109, ¶ 32. Evid.R. 402
allows the admission of any relevant evidence so long as the probative value of that
evidence is not outweighed by its prejudicial effect, and it does not confuse the issue
or mislead the jury. Evid.R. 403(A).
Statements made during jail calls can be deemed nonhearsay
admissions by a party-opponent under Evid.R. 801(D)(2). See, e.g., State v. Gerde,
12th Dist. Clermont No. CA2016-11-077, 2017-Ohio-7464, ¶ 9. Under
Evid.R. 801(D)(2), a statement is not hearsay if “[t]he statement is offered against a
party and is * * * the party’s own statement, in either an individual or a
representative capacity[.]” Gardner contends that the statements made during the
calls did not fall under Evid.R. 801(D)(2) because she did not admit to the crime or
intending to hurt Craddock during the calls.
Although the term “admission” appears to imply that an out-of-court
statement must be a confession or statement against interest, “‘in actuality, any prior
statement of a party is admissible providing it is offered against the party at trial.’”
State v. Baker, 137 Ohio App.3d 628, 652, 739 N.E.2d 819 (12th Dist.2000), quoting
Weissenberger’s Ohio Evidence 367, Section 801.33 (1998). Thus, there was no
requirement that Gardner had to make an admission during the calls for them to be
admitted under Evid.R. 801(D)(2).
The state offered the calls as evidence to refute Gardner’s contention
that she had no connection to the two men who beat Craddock. Gardner was
recorded on the calls saying that if an individual did not help with her bail money
she was going to “sing like a bird” and it would be “a million for both of them.” These
statements were properly admitted under Evid.R. 801(D)(2) — there was no error,
plain or otherwise, in their admission. The third assignment of error is therefore
overruled.
No Ineffective Assistance of Counsel
For her final assignment of error, Gardner contends that she was
denied the effective assistance of trial counsel. According to Gardner, “[h]ad [the]
jail calls not been in evidence, the jury would not have come back with a guilty
verdict on any of these counts.” We disagree.
To prevail on an ineffective assistance of counsel claim, Gardner must
show that her trial counsel’s performance fell below an objective standard of
reasonableness, and that she was prejudiced as a result. Strickland v. Washington,
466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to
demonstrate prejudice, Gardner must establish that, but for counsel’s errors, there
is a reasonable probability that the result of trial would have been different.
State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, 776 N.E.2d 79, ¶ 6. The failure
to make an adequate showing on either prong is fatal to an ineffective assistance of
counsel claim. Strickland at 697.
As discussed, the jail calls were properly admitted under
Evid.R. 801(D)(2), but even if they had been excluded, the other evidence presented
overwhelmingly supports the conviction. The outcome of the trial would not have
been different without the calls. Thus, Gardner has failed on both prongs of an
ineffective assistance of counsel claim. The fourth assignment of error is therefore
overruled.
Conclusion
The evidence was sufficient to support the conviction and the
conviction was not against the manifest weight of the evidence — it demonstrated
that Gardner was complicitous in the assault and murder of Craddock. Recordings
of Gardner’s jail calls were properly admitted under Evid.R. 801(D)(2), and trial
counsel was not ineffective for failing to object to their admission.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________
MICHAEL JOHN RYAN, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
SEAN C. GALLAGHER, J., CONCUR