State v. Wilson , 2011 Ohio 5638 ( 2011 )

[Cite as State v. Wilson, 2011-Ohio-5638.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25652
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
WALTER W. WILSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 12 3841 (A)
DECISION AND JOURNAL ENTRY
Dated: November 2, 2011
BELFANCE, Presiding Judge.
{¶1} Walter Wilson appeals his conviction for unauthorized use of a motor vehicle.
For the reasons set forth below, we affirm.
I.
{¶2} Willie Conway owns the trucks used by All Around Trucking, an Akron-based
trucking company owned by his wife, and also works as the dispatcher. Mr. Conway sent Mr.
Wilson out on a delivery with Tracy West, whom Mr. Conway had just hired. The two men then
drove to Georgia, Florida, back to Georgia, and then to Virginia. While in Virginia, they
contacted Mr. Conway to tell him that they were running low on fuel and needed money. Mr.
Conway promised to wire money to them, but Mr. Wilson and Mr. West never received it. They
repeatedly called Mr. Conway, but he never answered his phone. Ultimately, Mr. Wilson
borrowed money from his cousin to buy gas for the trip back to Akron.
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{¶3} Mr. West and Mr. Wilson got back to Akron around midnight on Christmas Eve.
Mr. West wanted Mr. Wilson to drive him home to Cleveland, but Mr. Wilson, claiming that he
did not want to run out of gas on his drive back to Akron, refused. Instead, he suggested that Mr.
West spend the night in the truck’s cabin with the engine running until the gas finally ran out.
Preferring to not spend the night in a truck that would likely run out of gas and heat, Mr. West
unhitched the trailer, drove the truck to Cleveland, and parked it at a store near his home.
{¶4} The following Monday, Mr. Conway and Mr. Wilson became engaged in a
dispute regarding Mr. Wilson’s wages as well as the gas money. Mr. Wilson told Mr. Conway
that, until Mr. Conway had paid him, Mr. Conway would not get the truck back. Mr. Conway
called the police and Mr. Wilson was arrested.
{¶5} A jury convicted Mr. Wilson of unauthorized use of a vehicle, and the trial court
sentenced him to six months imprisonment with six months suspended. He has appealed, raising
three assignments of error for review. We have rearranged his assignments of error for ease of
analysis.
II.
ASSIGNMENT OF ERROR III
“THERE WAS INSUFFICIENT EVIDENCE PRODUCED AT TRIAL TO
SUPPORT MR. WILSON’S CONVICTION OF UNAUTHORIZED USE OF A
VEHICLE”
{¶6} In Mr. Wilson’s third assignment of error, he argues that there was insufficient
evidence for the jury to find that he aided and abetted Mr. West in his unauthorized use of a
motor vehicle. We disagree.
{¶7} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at
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¶18, citing State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. The relevant inquiry is whether
the prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins, 78 Ohio St. 3d at 390 (Cook, J., concurring). In reviewing the evidence,
we do not evaluate credibility, and we make all reasonable inferences in favor of the State. State
v. Jenks (1991), 61 Ohio St. 3d 259, 273. The State’s evidence is sufficient if “any reasonable
trier of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” Id.
{¶8} The jury convicted Mr. Wilson of violating R.C. 2913.03(B) by using or operating
a vehicle without authorization. R.C. 2913.03(B) provides that “[n]o person shall knowingly use
or operate * * * [a] motor vehicle * * * without the consent of the owner or person authorized to
give consent, and * * * keep possession of it for more than forty-eight hours.” “No person,
acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or
abet another in committing the offense[.]” R.C. 2923.03(A)(2). “A charge of complicity may be
stated in terms of [R.C. 2923.03], or in terms of the principal offense.” R.C. 2923.03(F). At
trial, the jury was instructed as to the principal offense of unauthorized use of a vehicle as set
forth in R.C. 2913.03(B) as well as aiding and abetting. In order to support a conviction by
aiding and abetting,
“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. Such intent may
be inferred from the circumstances surrounding the crime.” State v. Johnson
(2001), 93 Ohio St. 3d 240, syllabus.
{¶9} According to Mr. Wilson, upon arriving in Akron, he took his belongings from
the truck but left the keys in the ignition so Mr. West could keep the engine running if he chose
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to sleep in the truck overnight. Instead, Mr. West unhitched the trailer from the truck and drove
away. Mr. Wilson testified that he saw Mr. West do this but did not assist him.
{¶10} When Mr. Wilson met Mr. Conway a couple days later, the two men argued about
Mr. Wilson’s wages. According to Mr. Conway, Mr. Wilson told him that he would not get his
truck back until Mr. Wilson was paid. However, Mr. Wilson denied this and testified that, when
Mr. Conway asked him where the truck was, he told Mr. Conway that the truck was out of fuel in
Cleveland.
{¶11} Mr. Conway contacted Mr. West who told him that the truck was in Cleveland,
but Mr. Conway was unable to locate it when he went looking for it. After Mr. Conway returned
home, Mr. Wilson called him to say that he was outside Mr. Conway’s house with the paperwork
necessary to get paid. However, Mr. Conway refused to see him because Mr. Wilson did not
have the truck with him.
{¶12} Mr. Conway contacted the police and reported the truck stolen. Officers David
Hileman and Brian Curtin responded to the call and spoke to Mr. Wilson at his home. Officer
Hileman testified that Mr. Wilson told him that Mr. Conway would not be getting the truck back
until he had paid Mr. Wilson, and Officer Curtin corroborated this testimony. Mr. Wilson denied
that he said this, testifying that he told the officers that the truck was out of fuel in Cleveland.
{¶13} Mr. Conway, Officer Hileman, and Officer Curtin all testified that Mr. Wilson
told them that Mr. Conway would not get the truck back until he paid Mr. Wilson and Mr. West.
While Mr. Wilson denied threatening to withhold the truck until he was paid, we must view the
evidence presented in the light most favorable to the State when reviewing its sufficiency. Jenks,
61 Ohio St. 3d at 273. From the testimony of Mr. Conway, Officer Hileman, and Officer Curtin,
the jury could have reasonably inferred that Mr. Wilson was supporting and/or encouraging Mr.
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West in his unauthorized use of the vehicle. Accordingly, there was sufficient evidence for the
jury to find that Mr. Wilson aided and abetted Mr. West in the commission of the offense.
{¶14} Mr. Wilson’s third assignment of error is overruled.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED WHEN IT PROVIDED AN IMPROPER AND
INACCURATE [DEFINITION] OF ‘AIDED AND ABETTED’ IN JURY
INSTRUCTIONS”
{¶15} Mr. Wilson argues that the trial court improperly included “conspired” in the
definition of “aided and abetted.” However, Mr. Wilson does not develop any argument
concerning any possible detrimental effect from the inclusion of this word in the jury instruction.
{¶16} Initially, we note that Mr. Wilson’s attorney objected to the complicity instruction
being given to the jury. However, once the trial court proceeded to give the instruction, counsel
did not object to the language of the instruction, and, furthermore, she even told the court that
she “would object to taking that aider and abettor language out.” Because Mr. Wilson did not
object to the language of the jury instructions, he has forfeited all but plain error on appeal. See
Crim.R. 52(B). However, Mr. Wilson has not developed a plain error argument, and, thus, we
decline to address this alleged error. See App.R. 12(A)(2) and App.R. 16(A)(7).
{¶17} Mr. Wilson’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE THE
REQUIRED ACCOMPLICE TESTIMONY JURY INSTRUCTION”
{¶18} Mr. Wilson argues that the trial court committed reversible error by not giving the
accomplice jury instruction as provided in R.C. 2923.03(D). We disagree.
{¶19} Mr. Wilson argues that his trial counsel’s objection to the complicity instruction
should be read as an objection to the jury instructions as a whole, including the failure to provide
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the accomplice instruction. However, as discussed above, Mr. Wilson’s counsel actually later
objected to the aiding and abetting language being taken out of the proposed jury instructions.
Furthermore, we disagree that “I would object to taking that aider and abettor language out[]”
constituted an objection to the trial court’s failure to give the R.C. 2923.03(D) accomplice
instruction. Accordingly, because Mr. Wilson did not object to the trial court not giving the
accomplice instruction, he has forfeited all but plain error on appeal.
{¶20} Generally, to establish plain error,
“‘there must [first] be an error, i.e., a deviation from the legal rule. * * * Second,
the error must be plain. To be “plain” within the meaning of Crim.R. 52(B), an
error must be an “obvious” defect in the trial proceedings. * * * Third, the error
must have affected “substantial rights[]” [to the extent that it] * * * affected the
outcome of the trial.’” State v. Hardges, 9th Dist. No. 24175, 2008–Ohio–5567,
at ¶9, quoting State v. Barnes (2002), 94 Ohio St. 3d 21, 27.
“[E]ven if the defendant satisfies this burden, the appellate court has discretion to disregard the
error and should correct it only to prevent a manifest miscarriage of justice.” (Internal quotations
and citation omitted.) State v. Wamsley, 117 Ohio St. 3d 388, 2008–Ohio–1195, at ¶27.
{¶21} R.C. 2923.03(D) provides that:
“If an alleged accomplice of the defendant testifies against the defendant in a case
in which the defendant is charged with complicity in the commission of or an
attempt to commit an offense, an attempt to commit an offense, or an offense, the
court, when it charges the jury, shall state substantially the following:
“‘The testimony of an accomplice does not become inadmissible because of his
complicity, moral turpitude, or self-interest, but the admitted or claimed
complicity of a witness may affect his credibility and make his testimony subject
to grave suspicion, and require that it be weighed with great caution.
“‘It is for you, as jurors, in the light of all the facts presented to you from the
witness stand, to evaluate such testimony and to determine its quality and worth
or its lack of quality and worth.’”
Importantly, R.C. 2923.03(D) requires the accomplice instruction when the accomplice testifies
against the defendant. See State v. Mitchell, 9th Dist. No. 24730, 2009-Ohio-6950, at ¶14.
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“Based on the clear meaning of the statute, R.C. 2923.03(D) only ‘contemplate[s] circumstances
where the alleged accomplice arranges to, and subsequently does, testify on behalf of the state
against the defendant.’” (Emphasis omitted.) State v. Feerer, 12th Dist. No. CA2008-05-064,
2008-Ohio-6766, at ¶32, quoting State v. Lancaster (Jan. 10, 1990), 9th Dist. No. 14212, at *5.
{¶22} Typically, an accomplice either testifies for the State or for the defendant.
However, this case presents the third scenario where the alleged accomplice testifies in his own
defense at a joint trial. Mr. Wilson has not provided any legal authority that would suggest that a
court commits plain error in failing to give the R.C. 2923.03(D) accomplice instruction in this
scenario. In fact, giving such an instruction in a joint trial scenario could have been detrimental
to Mr. Wilson. Telling the jury that Mr. West’s testimony should be regarded with “grave
suspicion[]” would undoubtedly undermine Mr. West’s ability to mount a defense. R.C.
2923.03(D); see, e.g., State v. Abboud, 8th Dist. No. 80251, 2002-Ohio-4436, at ¶29 (“The
accomplice instruction violated [the defendant’s] right to testify in his own behalf because it
unfairly told the jury that all of [his] testimony was suspect, even his testimony going to charges
that did not involve [his co-defendant].”). However, there would be little reason for the trial
court not to give the same instruction regarding Mr. Wilson’s testimony as he was also alleged to
be an accomplice of Mr. West. The end result would be the trial court telling the jury to treat the
defendants’ testimony differently than the testimony of the State’s witnesses, impermissibly
infringing on the defendants’ due process rights. See Abboud at ¶29.
{¶23} As Mr. West did not testify on behalf of the State, the trial court did not err in
failing to provide the R.C. 2923.03(D) accomplice jury instruction, and, therefore, Mr. Wilson
has not demonstrated plain error.
{¶24} Mr. Wilson’s second assignment of error is overruled.
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III.
{¶25} Mr. Wilson’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.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR
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APPEARANCES:
MATTHEW P. GAECKLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.