State v. Crosby , 2018 Ohio 3793 ( 2018 )

[Cite as State v. Crosby, 2018-Ohio-3793.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106504
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GERELLE CROSBY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-613397-A
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Keough, J.
RELEASED AND JOURNALIZED: September 20, 2018
[Cite as State v. Crosby, 2018-Ohio-3793.]
ATTORNEY FOR APPELLANT
Christopher M. Kelley
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brian Radigan
Hannah Smith
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Crosby, 2018-Ohio-3793.]
SEAN C. GALLAGHER, J.:
{¶1} Gerelle Crosby appeals his conviction for aggravated murder under R.C.
2903.01(B) and the resulting sentence of life in prison plus three years on a firearm
specification. We affirm.
{¶2} Crosby called his cousin requesting the victim’s contact information. Crosby
intended to buy drugs from the victim and called to set up a deal. The victim brought a
friend along; both of them were carrying firearms. The victim and his friend were
driving around the area of East 93rd Street and Quebec Avenue in Cleveland. During
that time, Crosby and a second person were texting or calling the victim asking for his
whereabouts. According to cell phone records, Crosby and the other person were in the
same area while these calls or texts were occurring.
{¶3} The victim and his friend eventually met an unknown person at East 93rd
Street and Quebec Avenue, who got into the backseat of the car. The victim showed the
person, circumstantially identified as Crosby, the drugs. Crosby called another person,
the second number that had been contacting the victim earlier, and Crosby told the victim
that the buyer did not want to handle the transaction in the vehicle. The victim followed
Crosby from the car and into an alley. Immediately thereafter, the victim’s friend heard
gunfire and saw the victim trying to run back to the car. Surveillance video from that
area shows the victim running from the shooter, who is chasing and shooting at the
victim. The victim’s friend returned fire, causing the shooter to flee. The victim was
mortally wounded.
{¶4} After the murder, Crosby contacted his cousin and told him to keep Crosby’s
name from the police and that the cousin should not be concerned with anything since he
was not at the scene of the murder. Crosby also told family members and his girlfriend
that he was present at the murder, but did not shoot the victim. Police officers arrested
Crosby, who disclaimed any affiliation with his cousin or the victim, knowledge of the
second phone number or the person who had been contacting the victim, and being
present at the scene of the murder.
{¶5} The jury found Crosby guilty of aggravated murder under R.C. 2903.01(B)
and a three-year firearm specification, amongst several other counts that merged into the
aggravated murder for the purposes of the final conviction. The trial court sentenced
Crosby to life in prison without the possibility of parole, plus a three-year consecutive
prison term on the firearm specification. From this conviction, Crosby appeals,
advancing six assignments of error, some of which are interrelated.
{¶6} In the first, third, and fourth assignments of error, Crosby claims that there is
no evidence demonstrating his complicity in the aggravated murder. We note that
Crosby makes the argument in the first assignment of error that because there is no
evidence of complicity, the trial court erred by so instructing the jury and, in addition, in
the third assignment of error that because there is no evidence demonstrating accomplice
liability, the conviction for aggravated murder is against the weight of the evidence.
Although Crosby presented the third assignment of error in terms of the weight of the
evidence, he expressly indicated that his arguments only addressed the sufficiency of the
evidence or whether there was any evidence in support of the complicity theory advanced
by the state. A claim that a jury verdict is against the weight of the evidence involves a
separate and distinct test that is much broader than the test for sufficiency. State v.
Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In light of
the fact that Crosby has presented no separate arguments in support of the claim that the
conviction is against the weight of the evidence, we will solely address the sufficiency of
the evidence as presented. App.R. 16(A)(7); State v. Cassano, 8th Dist. Cuyahoga No.
97228, 2012-Ohio-4047, ¶ 2.
{¶7} Further, as it relates to the complicity instruction, if there is no evidence
supporting the state’s claim that Crosby was complicit in the aggravated murder, then
whether the jury was properly instructed is irrelevant: the conviction must be reversed
based on the insufficiency of the evidence. On the other hand, if there is sufficient
evidence of his complicity in the commission of the aggravated murder, then the jury
instruction was necessarily warranted. In light of the fact that all three of these arguments
are based on Crosby’s belief that there is insufficient evidence of his being complicit in
the aggravated murder, we will address the three assigned errors under the sufficiency of
the evidence framework.
{¶8} 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. Thompkins, 78 Ohio
St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge,
“[t]he 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, 61 Ohio St. 3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus.
{¶9} Crosby was convicted of aggravated murder under R.C. 2903.01(B), which
provides in pertinent part that no person shall purposely cause the death of another while
committing or attempting to commit aggravated robbery or robbery. “Under R.C.
2923.03(F), ‘[a] charge of complicity may be stated in terms of [that] section, or in terms
of the principal offense.’” State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 244. As a result, any defendant “‘indicted for aggravated murder in terms
of the principal offense * * * [is] on notice that evidence could be presented that he was
either a principal offender, or an aider and abetter.’” Id., quoting State v. Ensman, 77
Ohio App. 3d 701, 703, 603 N.E.2d 303 (11th Dist.1991). In Ohio, there is no difference
between those convicted of complicity in a crime or as a principal offender. McKelton at
¶ 247, quoting State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-Ohio-6969, ¶
70. Further, the state is not required to prove the identity of the principal offender in
order to establish the offense of complicity. McKelton at ¶ 247, quoting In re T.K., 109
Ohio St. 3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus.
{¶10} On this point, Crosby contends that there is no direct evidence of his
involvement in the aggravated murder of the victim. According to Crosby, the evidence
demonstrated only that he facilitated the drug transaction, but he had no knowledge that
the unknown principal offender would murder the victim, citing State v. Shabazz, 8th
Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 32. In Shabazz, a divided panel
reversed a felony murder conviction under R.C. 2903.02(B) because there was no
evidence that the defendant knew that the principal offender had a firearm until the fatal
shot was fired, citing Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240,188
L.Ed.2d 248 (2014). Id. at ¶ 31-32.
{¶11} Shabazz is not applicable to the particular facts of this case because the
panel concluded there was no evidence that the defendant aided and abetted the principal
in that particular case. Shabazz at ¶ 39-40. In this case, there is evidence that Crosby
aided and abetted the unknown principal by facilitating the encounter with, and the
isolation of, the victim to facilitate the attempted robbery. Shabazz is inapplicable. And
Rosemond, cited as dicta in Shabazz, is not relevant to the current inquiry either.
Rosemond specifically addressed the validity of a jury instruction with respect to
violations of 18 U.S.C. 924(c). Rosemond is not a sweeping decision setting forth a new
rule of constitutional law that can be applied to crimes under state law. Vazquez-Castro
v. United States, 53 F. Supp. 3d 514, 521 (D.P.R.2014); Cordero v. United States, 2d Cir.
No. 15-530, 2015 U.S. App. LEXIS 23112, 2 (Mar. 19, 2015); Hughes v. Epps, 561
Fed.Appx. 350, 354 (5th Cir.2014), fn. 4 (Rosemond does not apply to state-law robbery
crime); see also Hicks v. State, 295 Ga. 268, 273, 759 S.E.2d 509 (2014), fn. 3 (same);
People v. Jordan, Mich.App. No. 326735, 2016 Mich. App. LEXIS 1833, 3 (Oct. 11,
2016) (Rosemond is inapplicable to Michigan state aiding and abetting standards because
Rosemond is limited to prosecutions for a particular federal statutory offense); State v.
Ward, 473 S.W.3d 686, 693 (Mo.App.2015) (Rosemond is not based on any constitutional
requirement and has no application to state criminal laws); State v. Dull, 372 Wis. 2d 458,
2016 WI App. 88, 888 N.W.2d 247 (same).
{¶12} In Ohio, an offender’s complicity to commit a crime may be inferred from
the circumstances surrounding the crime, and that may include the offender’s presence,
companionship, and conduct before and after the crime is committed. State v. Moore,
7th Dist. Mahoning No. 02 CA 152, 2004-Ohio-2320, ¶ 31, citing State v. Johnson, 93
Ohio St. 3d 240, 245, 2001-Ohio-1336, 754 N.E.2d 796. Further, circumstantial and
direct evidence possess the same probative value. Id., citing Jenks, 61 Ohio St. 3d 259,
574 N.E.2d 492, at paragraph one of the syllabus. “A person is guilty of complicity if
that person aids or abets another in committing an offense while acting with the kind of
culpability required for the commission of an offense.” Moore at ¶ 26, citing R.C.
2923.03(A)(2).
“To ‘aid’ is to assist and to ‘abet’ is to incite or encourage. Mere
approval or acquiescence, without expressed concurrence or the doing of
something to contribute to an unlawful act, is not an aiding or abetting the
act. * * * [I]n order to aid or abet, whether by words, acts, encouragement,
support, or presence, there must be something more than a failure to object
unless one is under a legal duty to object.
“The state may demonstrate that an accused is guilty of aiding and
abetting by direct or circumstantial evidence. Participation in criminal
intent may be inferred from presence, companionship, and conduct before
and after the offense is committed.”
State v. Mendoza, 137 Ohio App. 3d 336, 342, 2000-Ohio-1689, 738 N.E.2d 822 (3d
Dist.), quoting State v. Stepp, 117 Ohio App. 3d 561, 568-569, 690 N.E.2d 1342 (4th
Dist.1997).
{¶13} When Crosby’s actions after the murder are considered in conjunction with
his action in setting up the drug transaction and leading the victim away from the safety
of the vehicle and his friend, the jury could reasonably infer that Crosby never intended to
purchase drugs from the victim. The victim’s friend testified that the shots were fired
immediately after Crosby led the victim into the alley, supporting a reasonable inference
that Crosby intended to rob the victim after isolating the victim from his friend and the
safety of the vehicle. Crosby set in motion the drug transaction and the isolation of the
dealer that enabled the failed robbery attempt. See, e.g., State v. Alexander, 8th Dist.
Cuyahoga No. 98941, 2013-Ohio-2533, ¶ 16 (setting up a meeting, luring the victim to
secluded area, calling or messaging to confirm the meeting, among other factors
demonstrating sufficient evidence of a defendant’s complicity to commit robbery and
felonious assault); State v. Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶
32.
{¶14} Further, after the murder, Crosby took steps to remove himself from his
usual places, and he told witnesses to not disclose Crosby’s participation in the events
leading to the murder. It could be inferred from his actions a consciousness of guilt and
that Crosby was not merely trying to buy drugs when a stranger showed up to commit the
murder. Crosby also destroyed or disposed of his cell phone that he had been using at
the time of the murder to further conceal his whereabouts, indicating a consciousness of
guilt. See State v. Baskerville, 2017-Ohio-4050, 91 N.E.3d 340, ¶ 30 (9th Dist.); State v.
Knight, 10th Dist. Franklin No. 12AP-317, 2013-Ohio-1462, ¶ 30 (within the province of
the jury to determine whether defendant’s after-the-fact conduct demonstrates
consciousness of guilt). The phone records indicated that Crosby was with the unknown
individual before the attempted robbery that led to the murder. Crosby admitted his
presence during the murder to family members and his significant other, but lied to police
officers upon being arrested. And finally, surveillance video depicted the purposeful
shooting of the victim, as the victim attempted to evade his attackers. Crosby has not
demonstrated that there is insufficient evidence of his complicity in the aggravated
murder predicated on an attempted robbery or aggravated robbery. The first, third, and
fourth assignments of error are collectively overruled.
{¶15} In the second assignment of error, Crosby claims that the trial court erred by
instructing the jury that consciousness of guilt could be inferred if the jury concluded that
Crosby fled the scene as defined in Ohio law. According to Crosby, the jury instruction
was given improperly and necessarily suggested that Crosby was present and his
departure demonstrated some consciousness of guilt. The record does not support
Crosby’s argument. App.R. 16(A)(7).
{¶16} “The giving of jury instructions is within the sound discretion of the trial
court, and we review it for an abuse of discretion.” State v. Jackson, 8th Dist. Cuyahoga
No. 100125, 2014-Ohio-3583, ¶ 42, citing State v. Howard, 8th Dist. Cuyahoga No.
100094, 2014-Ohio-2176, ¶ 35, and State v. Martens, 90 Ohio App. 3d 338, 629 N.E.2d
462 (3d Dist.1993). Simply leaving the scene of a crime should not be confused with
“deliberate flight from the area in which the suspect is normally to be found.” Id. at ¶ 45,
quoting State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30, and
State v. Norwood, 11th Dist. Lake Nos. 96-L-089 and 96-L-090, 1997 Ohio App. LEXIS
4420 (Sept. 30, 1997). There must be some evidence that the defendant fled a location or
he attempted to evade police detection. Id.
{¶17} The trial court, in this case, instructed as follows:
Consciousness of guilt. Testimony has been admitted indicating that the
defendant fled the scene. You’re instructed that the fact that the defendant
fled the scene does not raise a presumption of guilt, but it may tend to
indicate the defendant’s consciousness of guilt. If you find that the facts
do not support that the defendant fled the scene, or if you find that some
other motive prompted the defendant’s conduct, or if you’re unable to
decide what the defendant’s motivation was, then you should not consider
this evidence for any purpose.
However, if you find that the facts support that the defendant engaged in
such conduct and if you decide that the defendant was motivated by a
consciousness of guilt, you may, but are not required to, consider that
evidence in deciding whether the defendant is guilty of the crimes charged.
You alone will determine what weight, if any, to give this evidence.
Thus, the jury was instructed to determine whether Crosby fled the scene of the crime and
to determine his motive for that departure. Irrespective of those findings, the jury was
free to disregard the consciousness of guilt in determining whether Crosby was guilty of
the underlying crimes. The jury instruction in this case follows the pattern instruction.
409 Ohio Jury Instructions, CR Section 409.13 (Rev. Aug. 17, 2005). Crosby is not
challenging the form of the instruction, but instead claims that the instruction was not
warranted because there is no evidence that he took purposeful and deliberate actions to
avoid apprehension from the police. In other words, Crosby is claiming that there is no
evidence that he fled as defined in the pattern jury instruction.
{¶18} In light of the form of the instruction, however, we are unable to conclude
that the trial court abused its discretion in giving it. The instruction essentially permitted
the jury to determine whether Crosby fled the scene, and even if it was determined that he
fled the scene motivated by consciousness of guilt, the jury was permitted to disregard
that consideration for the purposes of determining guilt on the individual counts. The
instruction as given permitted the jury to reach its own conclusion as to whether flight
occurred and whether that flight was motivated by consciousness of guilt. State v.
Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 50. The second
assignment of error is overruled.
{¶19} Finally, in the fifth and sixth assignments of error, Crosby claims the trial
court erred by imposing a life sentence without the possibility of parole on the R.C.
2903.01(B) conviction. According to Crosby, the sentence imposed was vindictive or
was not supported by the record or was contrary to law under R.C. 2953.08(G). Thus,
Crosby sought review of his sentence under R.C. 2953.08 but has not identified any
authority governing our review.
{¶20} We cannot review Crosby’s sentence. A defendant’s right to appeal a
sentence is derived from R.C. 2953.08. State v. Lee, 8th Dist. Cuyahoga No. 105894,
2018-Ohio-1839, ¶ 4, citing State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922
N.E.2d 923, ¶ 10. “R.C. 2953.08 “specifically and comprehensively defines the
parameters” of felony-sentencing review. State v. Marcum, 146 Ohio St. 3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21. R.C. 2953.08(D)(3) precludes appellate review
of sentences imposed for aggravated murder or murder under sections 2929.02 to 2929.06
of the Revised Code. State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 66 (8th Dist.),
citing State v. Porterfield, 106 Ohio St. 3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 19.
{¶21} This prohibition applies regardless of whether the trial court imposes the
minimum or maximum sentence under the aggravated murder sentencing scheme. In
State v. Jones, 2d Dist. Clark No. 2012 CA 61, 2013-Ohio-4820, ¶ 24, for example, the
defendant attempted to appeal his life sentence without the possibility of parole, imposed
after the defendant was found guilty of aggravated murder. The Second District
concluded that it was without jurisdiction to review the sentence to determine whether
earlier parole eligibility would have sufficed. Id. “The Ohio Supreme Court has held
that this is unambiguous: a sentence for aggravated murder imposed pursuant to R.C.
2929.02 to 2929.06 cannot be reviewed.” Id. at ¶ 22, citing Porterfield.
{¶22} Crosby is attempting to review the evidentiary basis of his life sentence.
We lack jurisdiction to review that aspect of the sentence, and Crosby has not presented
any discussion or legal analysis supporting our review of his sentence under R.C.
2953.08. App.R. 16(A)(7). Further, as it relates to his claim of vindictive sentencing,
which is premised on due process concerns, Crosby has not provided any authority for the
proposition that such an argument may be considered despite R.C. 2953.08(D)(3).
{¶23} In State v. Johnson, 1st Dist. Hamilton No. C-160242, 2017-Ohio-1148, ¶
12, for example, the defendant claimed that the appellate court could review procedural
errors in the sentencing process irrespective of R.C. 2953.08(D)(3). That argument was
rejected. According to Johnson, the underpinnings of challenges to the sentencing
process rest with an argument that R.C. 2953.08 does not provide the exclusive basis for
appealing a sentence and a defendant could appeal a sentence independent of the statutory
review. As generally recognized, however, there is no constitutional right to appellate
review of sentences. Id., citing State v. Smith, 80 Ohio St. 3d 89, 97, 1997-Ohio-355, 684
N.E.2d 668, quoting State ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 80, 50
S. Ct. 228, 74 L. Ed. 710 (1930). Further, the Ohio Supreme Court rejected the idea that
an appellate sentencing review exists outside the scope of R.C. 2953.08. Id., citing
Marcum at ¶ 21.
{¶24} In the absence of arguments or citations to authority in support of our review
of the sentences, the fifth and sixth assignments of error are overruled.
{¶25} On the basis of the foregoing, the conviction is affirmed.
[Cite as State v. Crosby, 2018-Ohio-3793.]
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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR