State v. Taylor ( 2011 )

[Cite as State v. Taylor, 2011-Ohio-5009.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25490
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JACKIE TAYLOR COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 01 0013 (B)
DECISION AND JOURNAL ENTRY
Dated: September 30, 2011
MOORE, Judge.
{¶1} Appellant, Jackie Taylor, appeals from the judgment of the Summit County Court
of Common Pleas. This Court affirms.
I.
{¶2} On December 31, 2009, Nikkol Graves learned that J.B. Garrett, a 71-year-old
man, had cashed his Social Security and SSI checks. The following morning, while Graves was
present in Garrett’s apartment, or while she was exiting, an intruder entered Garrett’s residence
and robbed him of approximately $20.00 to $40.00. On the same morning, Graves returned to
Garrett’s home, and, while she was there, an intruder again entered Garrett’s home and robbed
Garrett of his remaining Social Security and SSI proceeds. After this incident, Garrett went to
his neighbor’s home and called the police.
{¶3} After the second incident, Graves went to the home of Helen Smith on Nome
Ave. in the City of Akron, Ohio. While there, Hermaine Powell, whom Graves later identified as
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the intruder, arrived. Thereafter, Graves called Garrett’s neighbor’s home, and an officer
answered the call. A short time after this telephone conversation, Jackie Taylor, whom Graves
later alleged planned the burglaries, arrived at Smith’s house. Taylor and Graves left Smith’s
house in Graves’ car and were stopped by police. Police impounded the car and brought Graves
in for questioning regarding the burglaries of Garrett. While the car was in custody, the police
received a tip from Charles Randles that crack cocaine was in the car. Officers retrieved 4.38
grams of crack cocaine from the back seat.
{¶4} Taylor was indicted on a charge of possession of cocaine and several other
charges relating to his alleged complicity in the burglaries of Garrett. Graves and Powell entered
into plea agreements relative to their alleged roles in the burglaries, wherein they agreed to
testify at Taylor’s trial.
{¶5} At the close of the trial, the trial court instructed the jury on complicity, and the
jury found Taylor guilty of two counts of aggravated burglary, one count of aggravated robbery,
one count of theft from the elderly, and one count of possession of cocaine. The aggravated
burglary and aggravated robbery charges carried attendant firearm specifications, but the jury
found that the offenses were not committed with a firearm. The trial court dismissed the
aggravated robbery count and found that the theft from the elderly count merged with the
aggravated burglary counts for sentencing purposes. The trial court sentenced Taylor to seven
years of incarceration on each count of aggravated burglary and to one year of incarceration on
the possession of cocaine count, to run consecutively.
{¶6} Taylor timely filed a notice of appeal and raises two assignments of error.
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II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED [ ] TAYLOR’S MOTION FOR JUDGMENT OF ACQUITTAL
UNDER CRIM.R. 29 AS THE STATE OF OHIO DID NOT PROVIDE
SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF
THE CRIMES CHARGED BEYOND A REASONABLE DOUBT AND
THEREFORE THE CONVICTIONS MUST BE REVERSED AND
VACATED.”
{¶7} In his first assignment of error, Taylor argues that his convictions were not
supported by sufficient evidence. Specifically, he contends that the State failed to prove that the
commission of the burglaries involved physical harm or a deadly weapon. We do not agree.
{¶8} The issue of whether a conviction is supported by sufficient evidence is a question
of law, reviewed de novo. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. When
considering a challenge to the sufficiency of the evidence, the court must determine whether the
prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In making this
determination, an appellate court must view the evidence in the light most favorable to the
prosecution:
“An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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 (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus.
{¶9} Taylor was convicted of aggravated burglary in violation of R.C.
2911.11(A)(1)/(2), which provides:
“(A) No person, by force, stealth, or deception, shall trespass in an occupied
structure or in a separately secured or separately occupied portion of an occupied
structure, when another person other than an accomplice of the offender is
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present, with purpose to commit in the structure or in the separately secured or
separately occupied portion of the structure any criminal offense, if any of the
following apply:
“(1) The offender inflicts, or attempts or threatens to inflict physical harm on
another;
“(2) The offender has a deadly weapon or dangerous ordnance on or about the
offender’s person or under the offender’s control.”
{¶10} R.C. 2911.11(C)(2) provides that a “deadly weapon” has the same meaning as
provided in R.C. 2923.11, which defines a “deadly weapon” as “any instrument, device, or thing
capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed,
carried, or used as a weapon.” R.C. 2923.11(A).
{¶11} Taylor argues that the State failed to produce sufficient evidence to support the
principal crime of aggravated burglary as to either count insofar as it failed to produce proof as
to the alternate “physical harm” or “deadly weapon” elements embodied in R.C. 2911.11(A)(1)
and (2). Because Taylor focuses his argument on this issue, this Court will so limit its
discussion.
{¶12} As to the first count of aggravated burglary, the State provided the testimony of
Garrett, who stated that the intruder carried a pistol, which was visible to Garrett as the intruder
demanded money and searched Garrett’s pockets.
{¶13} As to the second count of aggravated burglary, the State provided the testimony of
Garrett and Graves. Garrett testified that, during the second incident, the intruder hit him with a
gun. Graves testified that, after the first burglary, Taylor said he was going to try to get a gun.
Further, Graves testified that, during the second incident, she heard Powell tell Garrett that, if
Garrett moved, Powell would kill him because he had a gun.
{¶14} Taylor argues that, because the jury found in the negative on the firearm
specifications, the evidence was insufficient to prove the deadly weapon prong of R.C.
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2911.11(A)(2). An argument similar to Taylor’s was advanced in State v. Moses, 5th Dist. No.
01CA104, 2002-Ohio-3832, at ¶14. In that case, the defendant was indicted on an aggravated
robbery charge together with a firearm specification stemming from the theft of a woman’s
wallet at gun point. Id. at ¶1. The jury found the defendant guilty of aggravated robbery, but not
of the firearm specification. Id. at ¶2. On appeal, the defendant argued that because possession
of a deadly weapon was an essential element of his aggravated robbery charge and because the
jury had found him not guilty on the firearm specification, the prosecution did not produce
sufficient evidence to support the aggravated robbery conviction. Id. at ¶14 (“Appellant argues
that this is proof that the jury lost its way and reached a ‘nonsensical’ verdict.”).
{¶15} However, the Fifth District disagreed, reasoning that the jury could have rejected
the witness’ testimony as to the type of weapon utilized, “or found the absence of a gun as an
exhibit made it impossible to determine if the gun was operable or capable of being rendered
operable.” Id. at ¶19; see also R.C. 2923.11(B)(1) (“‘Firearm’ includes an unloaded firearm, and
any firearm that is inoperable but that can readily be rendered operable.”). Therefore, as the
Fifth District recognized, the finding of not guilty on a firearm specification does not in itself
demonstrate that the evidence was insufficient to support that the accused possessed a deadly
weapon. See Moses at ¶19; see also State v. Peasely, 9th Dist. No. 25062, 2010-Ohio-4333(jury’s finding of not guilty on firearm specification did not negate deadly weapon or dangerous
ordnance elements of felonious assault), and State v. Hawk, 5th Dist. No. 2009 CA 000028,
2009-Ohio-6965, at ¶59-68 (rejecting defendant’s argument that the jury’s finding against the
firearm specification negated the deadly weapon element of aggravated robbery).
{¶16} As the firearm specification finding does not control the determination of
sufficiency of the evidence as to the deadly weapon element of aggravated burglary, and as the
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State produced testimony that, on each occasion, the intruder possessed a gun, the State produced
sufficient evidence to support a conviction under R.C. 2911.11(A)(2). As Taylor was charged
with aggravated burglary pursuant to R.C. 2911.11(A)(1) “and/or” (A)(2), and as there was
sufficient evidence to support a conviction under subsection (A)(2), it is unnecessary to address
Taylor’s physical harm arguments made relative to subsection (A)(1).
{¶17} Accordingly, Taylor’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“[ ] TAYLOR’S CONVICTIONS IN THIS CASE OF AGGRAVATED
BURGLARY AS CONTAINED IN COUNTS I AND II, AS WELL AS HIS
CONVICTION FOR POSSESSION OF COCAINE AS CONTAINED IN
COUNT 7, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND AS SUCH THE CONVICTIONS MUST BE REVERSED AND
VACATED.”
{¶18} In his second assignment of error, Taylor contends that his convictions for two
counts of aggravated burglary and one count of possession of drugs were against the manifest
weight of the evidence. We do not agree.
{¶19} When a defendant asserts that his conviction is against the manifest weight of the
evidence,
“an appellate court 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. Otten (1986), 33 Ohio App.3d 339,
340.
{¶20} In making this determination, this Court is mindful that “[e]valuating the evidence
and assessing credibility are primarily for the trier of fact.” State v. Shue (1994), 97 Ohio
App.3d 459, 466, citing Ostendorf-Morris Co. v. Slyman (1982), 6 Ohio App.3d 46, 47 and Crull
v. Maple Park Body Shop (1987), 36 Ohio App.3d 153, 154.
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Aggravated Burglary
{¶21} Here, Taylor argues that the manifest weight of the evidence fails to support either
his complicity in, or the deadly weapon element of, the two counts of aggravated burglary.
{¶22} Taylor’s conviction of aggravated burglary based upon complicity is permissible
under R.C. 2923.03(F), which provides that “[a] charge of complicity may be stated in terms of
this section, or in the terms of the principal offense.” Ohio’s complicity statute provides,
“(A) No person acting with the kind of culpability required for the commission of
an offense, shall do any of the following:
“(1) Solicit or procure another to commit the offense;
“(2) Aid or abet another in committing the offense;
“(3) Conspire with another to commit the offense in violation of section 2923.01
of the Revised Code;
“(4) Cause an innocent or irresponsible person to commit the offense.” R.C.
2923.03(A).
{¶23} In order to support a conviction based upon the defendant’s complicity through
aiding and abetting,
“[T]he 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. Such intent may
be inferred from the circumstances surrounding the crime.” State v. Johnson
(2001), 93 Ohio St.3d 240, 245.
{¶24} Here, testimony of the witnesses indicate that Taylor “supported, assisted,
encouraged, cooperated with, advised, or incited” Powell to commit the burglaries. See id.Powell testified that Taylor drove Powell to and from Garrett’s home when Powell committed
the first burglary and that Taylor drove Powell and Graves back to Garrett’s home just prior to
the commission of the second burglary. Moreover, Powell claimed that Taylor provided his
telephone which Powell used to receive instructions and a signal from Graves. Graves testified
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that Taylor conceived of the plans to burglarize Garrett and picked up Powell for the purpose of
accomplishing those plans. These acts constitute complicity, as all are acts of assistance of a
crime while sharing the criminal intent.
{¶25} As to the deadly weapon element of the offenses, as previously discussed, the
testimony of Graves and Garrett indicate that the principal burglary offenses were committed
with a gun. However, in support of his manifest weight argument, Taylor challenges the
credibility of Graves, Garrett and Powell by pointing to various testimonial inconsistencies and
by alleging bias on the part of Graves and Powell.
{¶26} After review of the record, we note that evidence was introduced to the jury
regarding each point that Taylor argues. The jury is in the best position to judge the credibility
of witnesses because the jury “is best able to view witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” State v. Cook, 9th Dist. No. 21185, 2003-Ohio-727, at ¶30 quoting
Giurbino v. Giurbino (1993), 89 Ohio App.3d 646, 659.
{¶27} As to the inconsistencies in the testimony, “the jury is free to believe all, part, or
none of the testimony of each witness,” and the jury here was instructed accordingly. State v.
Cross, 9th Dist. No. 25487, 2011-Ohio-3250, at ¶35, quoting Prince v. Jordan, 9th Dist. No.
04CA008423, 2004-Ohio-7184, at ¶35, citing State v. Jackson (1993), 86 Ohio App.3d 29, 33.
We cannot say the jury’s resolution of these inconsistencies was unreasonable. See Peasley at
¶18 citing State v. Morgan, 9th Dist. No. 22848, 2006-Ohio-3921, at ¶35 (“A conviction is not
against the manifest weight because the jury chose to credit the State’s version of events.”).
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{¶28} After reviewing the entire record, weighing the inferences and examining the
credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest
miscarriage of justice in finding Taylor guilty of two counts of aggravated burglary.
Possession of Cocaine
{¶29} Last, Taylor’s argument regarding possession of cocaine relates to the cocaine
that police found in Graves’ vehicle after it had been impounded. He argues that his conviction
was against the manifest weight of the evidence. R.C. 2925.11(A) provides that, “no person
shall knowingly obtain, possess, or use a controlled substance.” Here, Taylor’s arguments speak
to the element of “possession.” R.C. 2925.01(K) provides that to “possess” means to have
“control over a thing or substance, but may not be inferred solely from mere access to the thing
or substance through ownership or occupation of the premises upon which the thing or substance
is found.”
{¶30} The weight of the evidence supports the conclusion that Taylor possessed cocaine.
Graves testified that, when she pulled into the parking lot after seeing the police cruiser, Taylor
hid crack cocaine in the backseat of her car. Randles testified that he was at Smith’s house on
January 1, 2010, prior to Graves being pulled over, and at that time he saw Taylor give crack
cocaine to Powell. Randles further testified that, after Graves’ car was impounded, Taylor
informed Randles that he had hidden crack cocaine in the car. These acts, if believed by the trier
of fact, constitute possession by asserting control over the drugs.
{¶31} On this issue, Taylor challenges the credibility of Graves and Randles, again
referencing various testimonial inconsistencies and alleging bias.
{¶32} After reviewing the entire record, weighing the inferences and examining the
credibility of Graves and Randles, we cannot say that the jury clearly lost its way and created a
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manifest miscarriage of justice in finding Taylor guilty of possession of cocaine. Otten, 33 Ohio
App.3d at 340. Therefore, Taylor’s second assignment of error is overruled.
III.
{¶33} Taylor’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
WHITMORE, J.
CONCUR
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APPEARANCES:
RONALD T. GATTS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.