State v. Lambes ( 2020 )

[Cite as State v. Lambes, 2020-Ohio-3304.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019 AP 08 0026
LUCIAN A. LAMBES
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2018
CR 12 0461
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 11, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER JACOB T. WILL
Prosecuting Attorney 54 E. Mill Street – Suite #400
Tuscarawas County Prosecutor’s Office Akron, Ohio 44308
125 East High Avenue
New Philadelphia, Ohio 44663
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Hoffman, P.J.
{¶1} Appellant Lucian Lambes appeals the judgment entered by the Tuscarawas
County Common Pleas Court convicting him of three counts of attempted murder (R.C.
2903.02), three counts of felonious assault (R.C. 2903.11(A)(2)), and one count of
aggravated robbery (R.C. 2911.01(A)(1)), all with accompanying firearm specifications,
and sentencing him to an aggregate prison term of nineteen years. Appellee is the state
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 4, 2018, Appellant and a friend, Lisa Freetage, spent the day
together using methamphetamine and driving around. Appellant and his friend Ian
Cultrona, through cell phone calls and text messages, discussed the need to replenish
something which was depleted. In the text dialogue, Appellant sent Cultrona photos of a
semi-automatic handgun, and Cultrona replied with a photo of a loaded revolver from the
vantage point of the shooter. Appellant texted in response to the photo, “Lol who we
gonna get.” Cultrona responded, “Someone….Let me know let’s get it jump[i]ng.”
Appellant replied he was “trying to line shit up.” Cultrona responded with a picture of two
handguns, a brass-knuckled knife, and black bandanas.
{¶3} Cultrona texted Appellant the next morning. Cultrona had arranged a
purchase of something for himself for $425, and Cultrona told Appellant if he wanted
some, he had to hurry. Appellant expressed he had to “grab loot” because he had no
money, and Cultrona responded he would put the order in.
{¶4} Cultrona went to the home of Samantha Owen on December 5, 2018, and
used methamphetamine with Owen. Appellant, Freetage, and their friend Doug Casteel
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also came to Owen’s residence, driving Freetage’s black car. The five left Owen’s house
in two vehicles to travel to Casteel’s residence.
{¶5} While at Casteel’s apartment, Owen and Freetage remained in the kitchen.
The men were coming and going from a bedroom. In the presence of all members of the
group, Cultrona displayed and loaded a black revolver. Through text and Facebook
messages, Owen initiated contact with Brennan Wilkin, and arranged to purchase an
ounce of “blueberry cheesecake” marijuana from him for $200. Casteel directed the
arrangement with Wilkin through Owen. They arranged to meet Wilkin in a secluded
location on a country road. After these arrangements were made, the group left Casteel’s
apartment in two cars. Appellant drove Freetage’s black car with Casteel in the front
passenger seat and Freetage laying down in the backseat. Cultrona drove his vehicle
with Owen as the front passenger.
{¶6} Both vehicles proceeded to the secluded pull-off location on Liberty Road.
During the trip, Freetage noted Appellant stopped her vehicle and did something to the
only license plate, which was located on the rear of the car. Freetage believed Appellant
removed her license plate. Casteel drove to the scheduled meeting point with Wilkin,
while Appellant parked a short distance away at a gated-lane entrance on Liberty Road.
The two cars remained in contact with each other through cell phone calls.
{¶7} When Wilkin arrived, he parked behind Cultrona’s vehicle. He had two
passengers with him. Owen approached Wilkin’s vehicle, and asked to sample the
marijuana. Wilkin provided the sample to Owen and she returned to Cultrona’s vehicle.
Freetage’s black car quickly pulled behind Wilkin’s vehicle. Appellant and Casteel exited
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wearing bandanas as masks and brandishing handguns. Cultrona also exited his vehicle,
pulling a bandana over his face and brandishing a gun.
{¶8} Appellant, Casteel and Cultrona surrounded Wilkin’s vehicle, aiming their
handguns at the occupants and demanding money and marijuana. Wilkin threw a yellow
plastic bag containing the marijuana from the vehicle and drove quickly away. One of the
men fired at Wilkin’s SUV, flattening the rear passenger-side tire.
{¶9} Appellant and Casteel returned to Freetage’s car and began to chase
Wilkin’s vehicle. A nearby resident heard gunshots as the vehicles sped by his residence.
The witness also noted Wilkin’s vehicle had a flat tire, and the black car did not have a
license plate. The chase continued over a four-mile course, with Casteel and/or Appellant
continuing to fire approximately 20 shots at Wilkin’s vehicle. One bullet entered Wilkin’s
vehicle, grazing the leg and severing the fingertip of one of his passengers.
{¶10} Terry Stull lived in the area, and while driving home from work saw the
chase approaching in his rear-view and side mirrors. He heard two or three gunshots.
Both vehicles passed his truck, and Freetage’s vehicle maneuvered in front of Wilkin’s
SUV and came to a stop. Appellant and Casteel exited, aiming guns at Wilkin’s vehicle.
Wilkin put the SUV in reverse. The two passengers jumped out of the SUV and jumped
into Stull’s truck. Stull took them to the Newcomerstown Police Department.
{¶11} Meanwhile, Appellant and Casteel proceeded to Kimbolton, where Freetage
believed Appellant put the license plate back on her car. The group then traveled to New
Philadelphia, where they stayed until Cultrona called to tell Casteel it was clear to return
home. After dropping Casteel off at his home in Newcomerstown, Appellant and Freetage
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drove to Baltimore, Maryland, where they spent the night with Freetage’s mother.
Appellant and Freetage returned to Ohio the next day.
{¶12} Two hours after the shooting, Owen was arrested leaving her child’s school
Christmas program. Cultrona was apprehended in Owen’s basement. In his possession,
police found a .357 revolver handgun, a knife with brass knuckles, a yellow plastic grocery
bag with marijuana, $400 in cash, and three bandanas.
{¶13} Appellant was arrested five days later, on December 10, 2018, following a
car chase with the Ohio State Highway Patrol.
{¶14} Appellant was indicted by the Tuscarawas County Grand Jury on eight
counts: three counts of attempted murder, three counts of felonious assault, one count
of aggravated robbery, and one count of conspiracy, with accompanying firearm
specifications. Prior to trial, the State dismissed the charge of conspiracy. The case
proceeded to jury trial on the remaining counts. The jury convicted Appellant on all
counts.
{¶15} The trial court found the convictions of felonious assault were allied offenses
of similar import to the attempted murder convictions. The State elected to have Appellant
sentenced on the attempted murder convictions. The court sentenced Appellant to six
years incarceration on each count of attempted murder, to be served concurrently to each
other. Appellant was sentenced to eight years incarceration for aggravated robbery, to
be served consecutively to the concurrent terms of incarceration for attempted murder.
After merging the three year and five year firearm specifications, the court sentenced
Appellant to a five year mandatory term of incarceration, to be served consecutively to
the other sentences, for an aggregate term of incarceration of nineteen years.
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{¶16} It is from the July 22, 2019 judgment of conviction and sentence Appellant
prosecutes this appeal, assigning as error:
I. THE JURY’S FINDING OF GUILT AS TO ALL CHARGES WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED
AT TRIAL.
II. THE APPELLANT’S CONVICTIONS AS TO ALL CHARGES
WERE AGAINST THE SUFFICIENCY OF THE EVIDENCE PRESENTED
AT TRIAL.
III. THE COURT COMMITTED PLAIN ERROR WHEN IT
INSTRUCTED THE JURY ON THE ELEMENTS OF COMPLICITY WHEN
THE DEFENDANT WAS NEVER PUT ON NOTICE OF THE CHARGE
THROUGH THE INDICTMENT.
I., II.
{¶17} Appellant argues the judgments of conviction are against the manifest
weight and sufficiency of the evidence. He argues the evidence was sufficient to
demonstrate he was present at the scene of the crimes, but the evidence does not
demonstrate his participation in the crimes. He specifically argues there is no evidence
to demonstrate he used or brandished a firearm.
{¶18} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
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and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶19} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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 492,
paragraph two of the syllabus (1991).
{¶20} Appellant was convicted of three counts of attempted murder. R.C. 2903.02
defines murder, “No person shall purposely cause the death of another.” Attempt is
defined by R.C. 2923.02, which provides, “No person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct that, if successful, would constitute or result in the offense.” Appellant
was also convicted of three counts of felonious assault, defined by R.C. 2903.11(A)(2)
as knowingly “causing or attempting to cause physical harm by means of a deadly weapon
or dangerous ordnance.” Appellant was also convicted of aggravated robbery in violation
of R.C. 2911.01(A)(1), which provides:
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
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(1) Have a deadly weapon on or about the offender's person or under
the offender's control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it.
{¶21} The State presented evidence the evening before and the morning of the
crimes, Appellant and Cultrona engaged in conversation concerning the need to acquire
money Appellant did not have, and their intention to “get someone.” The conversations
included photographs of weapons.
{¶22} Lisa Freetage testified when the group left Casteel’s house, where Cultrona
loaded a gun in front of them, Appellant was driving her black car. She was laying down
in the backseat, but at one point the car stopped and Appellant did something to the back
of the vehicle. She assumed he was removing the license plate. She testified when they
stopped again, both men got out of the vehicle and she heard screaming and loud bangs.
Appellant and Casteel got back in the car. She testified they drove to Kimbolton where
Appellant put the license plate back on the car. She testified she didn’t feel she could go
home because she knew something had happened using her car, and so she and
Appellant drove to Baltimore, Maryland for the night.
{¶23} Both passengers of Wilkin’s car testified when they stopped with Wilkin, two
men came up to the car pointing guns at them. They testified they were shot at by
someone in the black car as they were chased. One passenger was struck by a bullet in
the leg and the finger during the chase.
{¶24} Brennan Wilkin testified after Samantha asked to sample the marijuana,
another car pulled up. He testified the occupants, who were wearing bandanas, got out
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and came to Wilkin’s vehicle. The men had guns and asked for money. When Wilkin
pulled out, one of them shot the tire out of his car. He testified they were chased by the
black car, and shots were fired from the black car, hitting one of his passengers.
{¶25} Samantha Owen testified when the black car arrived at the location where
she arranged to meet Wilkins, the occupants jumped out of the car. She recognized the
clothes Casteel was wearing, and assumed the other man was Appellant. Although she
did not remember his clothes, she was aware Appellant was driving the black car when
the group left Casteel’s apartment to meet Wilkin. She testified Casteel and Appellant
jumped out of the car, holding guns on Wilkin and his friends.
{¶26} This was sufficient testimony, if believed by the jury, to establish Appellant
was not merely present at the scene, but held a gun to the occupants of Wilkin’s car
during the robbery. The testimony, if believed by the jury, further demonstrates Appellant
was either the occupant or the driver of the black car during the ensuing chase, and either
fired his own weapon at Wilkins’s car or participated in the chase while Casteel fired at
Wilkin’s car. We find the judgment is supported by sufficient evidence.
{¶27} Appellant argues the testimony of Owen and Freetage is not credible. He
argues they both were using methamphetamine, and further were motivated to lie.
{¶28} Freetage admitted her use of methamphetamine to the jury, and admitted
she received a plea deal in order to testify against Appellant. She admitted pursuant to
the plea deal she would receive probation, and she desired to avoid prison in order to get
her kids back. Owen likewise admitted to drug use, admitted to a plea deal, and testified
she did not want to lose her children. Owen also admitted she had previously lied to
police. However, the jury is in a better position than this court to judge the credibility of
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witnesses, and we find the jury did not lose its way in believing the trial testimony of Owen
and Freetage. Further, much of the testimony of Freetage and Owen concerning the
events of December 5, 2018, was corroborated by Wilkin and his passengers, as well two
neighbors who saw the chase and heard the shots fired. In addition, a Guernsey County
Sheriff’s Deputy on surveillance in Kimbolton saw Freetage’s black car and noted the
license plate number. This testimony corroborated Freetage’s testimony after the chase,
they drove to Kimbolton, where she believed Appellant put the license plate back on the
rear of her car.
{¶29} Appellant further argues the police did not take DNA from Freetage’s car or
from the bandanas seized from Cultrona to link Appellant to the crimes, nor did they
conduct residue testing on Appellant to determine if he fired a weapon. Appellant was
not arrested until five days after the crime, and does not challenge his presence at the
scene, nor his round trip to Baltimore in Freetage’s car. Therefore, scientific testing would
have been of limited probative value. We find the lack of scientific evidence linking
Appellant to the crime does not render the judgment against the manifest weight of the
evidence. See State v. Fields, 5th Dist. Stark No. 2018CA00159, 2019-Ohio-2252, ¶19.
{¶30} The first and second assignments of error are overruled.
III.
{¶31} In his third assignment of error, Appellant argues the court committed plain
error in instructing the jury on complicity, as complicity was not charged in the indictment.
{¶32} Appellant concedes he did not object to the instruction. Failure to object
before the jury retires, absent plain error, constitutes waiver. State v. Williford, 49 Ohio
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St.3d 247, 551 N.E.2d 1279 (1990). The Ohio Supreme Court has clarified the standard
of review for plain error:
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” notwithstanding an accused's
failure to meet his obligation to bring those errors to the attention of the trial
court. However, the accused bears the burden to demonstrate plain error
on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034,
19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal
rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
Even if the error is obvious, it must have affected substantial rights,
and “[w]e have interpreted this aspect of the rule to mean that the trial
court's error must have affected the outcome of the trial.” Id. We recently
clarified in State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38
N.E.3d 860, that the accused is “required to demonstrate a reasonable
probability that the error resulted in prejudice—the same deferential
standard for reviewing ineffective assistance of counsel claims.” (Emphasis
sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,
81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
If the accused shows that the trial court committed plain error
affecting the outcome of the proceeding, an appellate court is not required
to correct it; we have “admonish[ed] courts to notice plain error ‘with the
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utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’” (Emphasis added.) Barnes at 27, 759
N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
{¶33} State v. Thomas, 2017–Ohio–8011, ¶¶ 32–34.
{¶34} R.C. 2923.03 defines complicity. Subsection (F) of the statute provides, “A
charge of complicity may be stated in terms of this section, or in terms of the principal
offense.” A defendant charged with an offense may be convicted of such offense upon
proof he was complicit in its commission, even though the indictment is stated in terms of
the principal offense and does not mention complicity. State v. Herring, 94 Ohio St.3d
246, 251, 2002–Ohio–796, 762 N.E.2d 940. R.C. 2923.03(F) adequately notifies a
defendant the jury may be instructed on complicity, even when the charge is drawn in
terms of the principal offense. Id.{¶35} We find no error in the trial court’s jury instruction on complicity despite the
fact the indictment in the instant case was stated in terms of the principal offense. The
third assignment of error is overruled.
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{¶36} The judgment of the Tuscarawas County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur