State v. Mays

[Cite as State v. Mays, 2013-Ohio-1952.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-05-038
: OPINION
- vs - 5/13/2013
:
DARRELL MAYS, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2011CR0658
D. Vincent Faris, Clermont County Prosecuting Attorney, David H. Hoffmann, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
William F. Oswall, Jr., 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for defendant-
appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Darrell Mays, Jr., appeals his conviction in the Clermont
County Court of Common Pleas for aggravated robbery. For the reasons discussed below,
we affirm appellant's conviction.
{¶ 2} On July 28, 2011, appellant was indicted on one count of aggravated robbery in
violation of R.C. 2911.01(A)(1), with a firearm specification. The charge arose out of
Clermont CA2012-05-038
allegations that appellant planned and encouraged the November 6, 2009 robbery of
Thorntons gas station in Miami Township, Ohio, provided a handgun to be used during the
commission of the robbery by his associates, Steven Rider and Derek Carpenter, and shared
in the proceeds obtained from the robbery.
{¶ 3} A jury trial was held in April 2012. At trial, the state sought to prove that
appellant was complicit in the commission of the November 6, 2009 aggravated robbery.1
2
Rider testified on behalf of the state in exchange for a lesser charge. His testimony revealed
that in November 2009, appellant and appellant's girlfriend, Angela Hyden, lived together in
an apartment complex "right down the road" from Thorntons gas station. Rider explained he
often "hung out" with appellant and Carpenter at appellant's home, and on the evening of
November 5, 2009, he, appellant, Carpenter, Hyden, and a friend named "Demetri" were in
appellant's apartment "drinking, smoking weed, and partying."
{¶ 4} Rider further testified that he did not know who planned the robbery, but on the
night the robbery occurred, Rider saw Carpenter exit appellant's bedroom looking "flustered."
Appellant walked by Carpenter and told him "not to puss out." Rider was then told by
Carpenter of the plan to rob Thorntons gas station.
{¶ 5} Rider testified that later in the evening, he again heard appellant tell Carpenter
that "if he [Carpenter] was going to do it he needed not to puss out. He needed to just go
and get it done." Carpenter then went into appellant's bedroom and retrieved from a closet a
gun owned by Hyden. Rider testified that although the gun was owned by Hyden, appellant
1. "The clear and unambiguous language of R.C. 2923.03(F) states that a charge of complicity may be stated in
terms of the complicity statute, R.C. 2923.03, or in terms of the principal offense." State v. Wagers, 12th Dist.
No. CA92-11-231, 1993 WL 369240, *2 (Sept. 20, 1993). See also State v. Benson, 12th Dist. No. CA2004-10-
254, 2005-Ohio-6549, ¶ 29; State v. Tumbleson, 105 Ohio App. 3d 693, 697 (12th Dist.1995).
2. In exchange for Rider's cooperation and testimony, the state agreed to amend Rider's original charge of
aggravated robbery (a first-degree felony), with a firearm specification, to a charge of robbery (a third-degree
felony), with no firearm specification.
-2-
Clermont CA2012-05-038
"most definitely" controlled the gun, and if people wanted to use or handle the gun they would
"usually" ask appellant's permission.
{¶ 6} Around midnight, Carpenter, Rider, Demetri and another unnamed individual
drove to the gas station with the intention of robbing the store, but they abandoned the plan
as there were too many customers present. The group returned to appellant's apartment
where they continued partying. Around 3:00 a.m., Carpenter and Rider left on foot to rob the
gas station. Rider testified that during the robbery, Carpenter held the gun taken from
appellant's apartment to the gas station's clerk's head. After taking money out of two
separate cash registers, Carpenter and Rider fled the store and went back to appellant's
apartment. Rider testified that when he and Carpenter got back to appellant's apartment,
appellant "kind of looked surprised that we actually did it. * * * And he kind of looked at us
funny when we sat the bag of cash on the bed." Rider stated that appellant then grabbed the
bag of cash, counted the money from the robbery, and divided the money three ways, with
appellant getting an "even share." Rider testified that the day after the robbery, appellant
admonished Rider and Carpenter "to make sure [to] keep quiet about it [the robbery]."
{¶ 7} Detective Robert Bradford of the Miami Township Police Department also
testified at trial. Bradford testified he investigated the robbery at Thorntons, and during the
course of his investigation, he spoke with Rider, Carpenter and appellant. Although Rider
had acknowledged appellant's role in "setting up" the robbery, appellant denied any
3
involvement in the robbery. Appellant claimed that he was "not around" when Rider and
3. The following discussion took place between Rider and Bradford regarding appellant's role in planning the
robbery:
DET. BRADFORD: Tell me. I already know it. You know I'm right. You know
where I'm at, right? I mean, would you at least tell me am I right or wrong? Was
it at Angie's house, and it was her boyfriend, [Mays] that was setting it up? I
don't even - - at least tell me if I'm right or wrong or wrong [sic]. I mean - -
MR. RIDER: Right.
DET. BRADFORD: Okay. That's what I figured. * * *
-3-
Clermont CA2012-05-038
Carpenter planned the robbery as he was in the back of the apartment with Hyden. He
further claimed that he did not let anyone borrow the gun kept in his and Hyden's apartment,
and if the gun had been used, "someone had to steal it." Finally, appellant told Bradford that
he did not get any money or proceeds from the robbery.
{¶ 8} Bradford testified that Hyden's gun had been recovered from appellant's
apartment. Bradford explained that the gun recovered, a black and silver SCCY Industries 9
mm handgun, did not have any latent prints of value and appeared to have been wiped
down. In comparing the gun recovered from appellant's apartment to photographs taken
from surveillance video of the robbery, Bradford testified that "I have not found any
differences between this gun here [the recovered gun] and that gun that I could see in the
video." Bradford did admit, however, that there was no way to positively identify the gun
taken from appellant's apartment as the gun in the surveillance video. He further admitted
that a number of firearm manufacturers produce black and silver guns that look similar to the
weapon taken from appellant's apartment.
{¶ 9} On April 6, 2012, the jury found appellant guilty of complicity to aggravated
robbery.4 Appellant filed a Crim.R. 29(C) motion to set aside the verdict and for judgment of
acquittal, which was denied by the trial court on May 8, 2012. Appellant was subsequently
sentenced to five years in prison.
{¶ 10} Appellant now appeals, raising three assignments of error. For ease of
discussion, appellant's assignments of error will be addressed together.
{¶ 11} Assignment of Error No. 1:
{¶ 12} APPELLANT'S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE.
4. The jury found appellant guilty of complicity to aggravated robbery without the specification. The record
demonstrates that although the trial court instructed the jury on the firearm specification, it inadvertently omitted
the firearm specification interrogatory from the verdict form.
-4-
Clermont CA2012-05-038
{¶ 13} Assignment of Error No. 2:
{¶ 14} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 15} Assignment of Error No. 3:
{¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
OVERRULING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF
THE OHIO RULES OF CRIMINAL PROCEDURE.
{¶ 17} In his assignments of error, appellant argues the trial court erred by denying his
Crim.R. 29(C) motion for acquittal, his conviction was not supported by sufficient evidence,
and his conviction was against the manifest weight of the evidence. Specifically, appellant
argues the state did not meet its burden in proving appellant was complicit to aggravated
robbery as the state's "whole case rested on the testimony of Rider," who provided vague,
speculative, and incomplete testimony. Appellant contends that in finding him guilty, the "trier
of fact clearly lost its way because Rider was an admitted liar with no credibility."
{¶ 18} Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty verdict and
enter a judgment of acquittal. State v. Grinstead, 194 Ohio App. 3d 755, 2011-Ohio-3018, ¶ 9
(12th Dist.). "This court reviews a trial court's decision on a Crim.R. 29(C) motion for
acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim."
Id.; State v. Clements, 12th Dist. No. CA2009-11-277, 2010-Ohio-4801, ¶ 17; State v.
Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, ¶ 26.
{¶ 19} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); Grinstead at ¶ 10.
When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate
court examines the evidence in order to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.
-5-
Clermont CA2012-05-038
Paul, 12th Dist. No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[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 (1991), paragraph two of the syllabus.
{¶ 20} On the other hand, a manifest weight of the evidence challenge examines the
"inclination of the greater amount of credible evidence, offered at a trial, to support one side
of the issue rather than the other." State v. Barnett, 12th Dist. No. CA2011-09-177, 2012-
Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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. Graham, 12th Dist. No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the
evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in
the best position to judge the credibility of witnesses and determine the weight to be given to
the evidence. State v. Blankenburg, 197 Ohio App. 3d 201, 2012-Ohio-1289, ¶ 114 (12th
Dist.). "The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction." Id., citing
State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997). Furthermore, "[a] unanimous
concurrence of all three judges on the court of appeals panel reviewing the case is required
to reverse a judgment on the weight of the evidence in a jury trial." Id., citing Thompkins at
389.
{¶ 21} "Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding of
sufficiency." State v. Hart, 12th Dist. No. CA2011-03-008, 2012-Ohio-1896, ¶ 43, citing
-6-
Clermont CA2012-05-038
Graham at ¶ 67. Accordingly, a determination that a conviction is supported by the weight of
the evidence will also be dispositive of the issue of sufficiency. Id.
{¶ 22} Appellant was convicted of complicity to 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:
(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.
{¶ 23} Ohio's complicity statute, R.C. 2923.03(A)(2), states in pertinent 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." In order to support a conviction for
complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), "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." State v. Johnson, 93 Ohio St. 3d 240, 2001-Ohio-1336, syllabus. Such intent
may be inferred from the circumstances surrounding the crime, including presence,
companionship, and conduct before and after the offense is committed. Id.; State v. Mota,
12th Dist. CA2007-06-082, 2008-Ohio-4163, ¶ 20. Moreover, evidence of aiding and abetting
may be shown by either direct or circumstantial evidence. State v. Salyer, 12th Dist. No.
CA2006-03-039, 2007-Ohio-1659, ¶ 26.
{¶ 24} The culpability required for the "theft offense" element of aggravated robbery is
"knowingly." Id. at ¶ 20; State v. McSwain, 79 Ohio App. 3d 600, 606 (8th Dist.1992). A
person acts "knowingly" when he is "aware that his conduct will probably cause a certain
-7-
Clermont CA2012-05-038
result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist." R.C. 2901.22(B).
{¶ 25} After reviewing the entire record, weighing inferences and examining the
credibility of the witnesses, we find that appellant's conviction for aggravated robbery was
supported by the manifest weight of the evidence. The state presented testimony and
evidence from which the jury could have found the essential elements of complicity to
aggravated robbery proven beyond a reasonable doubt.
{¶ 26} The state presented evidence that appellant, Rider, and Carpenter were
present in appellant's apartment the night the robbery was planned and committed. Although
Rider testified at trial that he did not know who planned the robbery, the jury was entitled to
find that appellant knowingly aided and abetted in the robbery of Thorntons gas station by
actively supporting and encouraging the robbery, as appellant told Rider and Carpenter "not
to puss out" and "to just go and get it done," and by assisting in the robbery, as appellant
allowed the gun that he controlled and stored in his apartment to be used in the robbery.
Further, the evidence presented at trial demonstrated that appellant knowingly cooperated in
the robbery by sharing the proceeds from the robbery and instructing Rider and Carpenter to
"keep quiet" about the robbery.
{¶ 27} Appellant contends that evidence offered against him at trial was not credible
as the majority of the evidence was presented by Rider, an "admitted liar" who received
leniency in the prosecution of his case in exchange for his testimony against appellant.
Simply because Rider was offered a plea bargain in exchange for his testimony, the jury was
not precluded from finding Rider's testimony credible. "Obviously, if such were the case, the
state could never rely on the testimony of accomplices and many criminals would escape
prosecution." State v. Cumberbatch, 11th Dist. No. 2009-T-0127, 2011-Ohio-1584, ¶ 54. It
was for the jury to determine whether all, part of, or none of Rider's testimony was credible as
-8-
Clermont CA2012-05-038
they were in the best position to observe his demeanor. State v. Woodward, 12th Dist. No.
CA2011-02-036, 2011-Ohio-6019, ¶ 35. Furthermore, pursuant to R.C. 2923.03(D), the jury
was provided with the following instruction regarding the weight to be given to Rider's
testimony:
You have heard testimony from Steven Rider, another person
who is accused of the same crime charged in this case, and is
said to be an accomplice. An accomplice is one who purposely
or knowingly assists, or joins another in the commission of a
crime. Whether Mr. Rider was an accomplice and the weight to
give his testimony are matters for you to determine from all the
facts and circumstances in evidence.
An accomplice may have special motives in testifying, and you
should carefully examine an accomplice's testimony and use it
with great caution, and view it with grave suspicion.
We must presume that the jury followed the instructions given to it by the trial court. State v.
Martin, 12th Dist. Nos. CA2002-10-111, CA2002-10-115 & CA2002-10-116, 2003-Ohio-6551,
¶ 24; State v. Jones, 90 Ohio St. 3d 403, 414 (2000).
{¶ 28} In light of the jury's verdict, it is apparent that the jury found Rider's testimony to
be credible and chose to believe Rider's testimony and the state's version of events over
appellant's denial of any involvement in the robbery. Given the evidence presented, the jury
clearly did not lose its way and create such a manifest miscarriage of justice such that the
conviction must be reversed and a new trial ordered. Therefore, as appellant's aggravated
robbery conviction was not against the manifest weight of the evidence, we necessarily
conclude that the state presented sufficient evidence to support the jury's finding of guilt and
to overcome appellant's Crim.R. 29(C) motion. Accordingly, appellant's first, second, and
third assignments of error are overruled.
{¶ 29} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.
-9-