State v. Rudasill

[Cite as State v. Rudasill, 2021-Ohio-45.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 19AP-61
(C.P.C. No. 18CR-389)
v. :
(REGULAR CALENDAR)
Demarius M. Rudasill, :
Defendant-Appellant. :
D E C I S I O N
Rendered on January 12, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Sheryl L. Prichard, for appellee.
On brief: Campbell Law LLC, and April F. Campbell, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Demarius M. Rudasill, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a jury trial in which appellant was found guilty of murder, aggravated
robbery, and having weapons while under disability.
{¶ 2} On January 25, 2018, appellant was indicted on one count of aggravated
robbery, in violation of R.C. 2911.01, one count of aggravated murder, in violation of R.C.
2903.01, one count of murder, in violation of R.C. 2903.02, and one count of having
weapons while under disability, in violation of R.C. 2923.13. Each of the first three counts
No. 19AP-61 2
also carried firearm specifications. The indictment arose out of the shooting death of a
teenager, R.D., on August 18, 2017.
{¶ 3} The matter came for trial before a jury beginning January 7, 2019. In August
2017, Anthony Norvett and his girlfriend, Elizabeth Cordery, resided near East 15th
Avenue, Columbus. On the evening of August 18, 2017, Norvett heard the sound of a
gunshot nearby. Cordery, who was working third shift that evening, arrived home the next
morning at approximately 8:00 a.m. and observed someone lying on the steps of a nearby
residence. A short time later, Cordery walked over to the area with her sister and "found
[the victim] dead, blood on the porch." (Tr. Vol. II at 193.) Cordery dialed 911, and
Cordery's sister took video of the scene.
{¶ 4} On August 19, 2017, at 8:20 a.m., Columbus Police Officer Vincent A. Miller
responded to the scene at East 15th Avenue. Upon arrival, he observed a male on a porch
step "bleeding from the mouth." (Tr. Vol. II at 203.) The officer "got no reaction at all from
him, so I thought he was probably deceased at that point." (Tr. Vol. II at 204.) At trial,
Officer Miller identified photographs taken of the crime scene, as well as photographs of
the deceased victim.
{¶ 5} R.V., age 17, testified he was currently in a juvenile placement program. R.V.
was a friend of the shooting victim, R.D. On August 18, 2017, R.V. had spent the night at a
"female's house in the Short North." (Tr. Vol. II at 227.) That morning, he "woke up to
somebody knocking on the door. [He] answered the door and it was Nutto, [R.D.] and
another person whose name [he] forg[o]t." R.V. had known "Nutto" (later identified as
Nasear Smith) for several years "[f]rom the neighborhood and * * * through other people."
(Tr. Vol. II at 228.)
{¶ 6} R.V. testified that R.D. "came in with his gun that I didn't know he had, and
Nutto had a gun on him." R.V. stated that "they had an extra gun," and "we all asked him
where he had got the gun from." (Tr. Vol. II at 228.) Nutto "told me that they had robbed
somebody's house for it and Nutto just provided the ride, but [R.D.] had actually went in to
go get the gun." (Tr. Vol. II at 230.) R.D. and Nutto began "arguing over whose gun it was."
(Tr. Vol. II at 231.)
{¶ 7} A short time later, Nutto went upstairs to take a shower. R.V. testified that,
while Nutto was in the shower, R.D. "sold the gun to my other friend named Fatz" for
No. 19AP-61 3
approximately $200. (Tr. Vol. II at 231.) When Nutto came back downstairs, Fatz informed
Nutto that R.D. " 'just sold it to me.' " Nutto and R.D. then "started arguing about it." Nutto
"said, 'Why you selling my gun?' And [R.D.] told him that it was his gun because he was
the person who actually went inside the house that they robbed to get it and Nutto had just
provided the ride." (Tr. Vol. II at 232.)
{¶ 8} R.D. then offered to " 'shoot dice for it.' " (Tr. Vol. II at 233.) R.D. won the
dice game and "was acting cocky." R.D. "told [Nutto] like, 'You should have never * * * put
your money up. This is mine now. I just scoped * * * you.' " R.V. testified that if R.D. wins
a bet, he usually gives the other person "half their money back, but he didn't do that this
time." (Tr. Vol. II at 234.) Instead, R.D. gave half of the money he won to R.V.
{¶ 9} R.D. then asked R.V. to go to a cookout with him. They asked Nutto for a
ride, and Nutto "told us he needed $20 first." (Tr. Vol. II at 235.) Fatz offered to give them
a ride for $10, and "then Nutto was like, never mind, I'll take you all for $10. So we * * *
just rode with Nutto because [R.D.] felt bad he took his money already, so he wanted him
to have a chance to get some money that he lost back." (Tr. Vol. II at 235-36.)
{¶ 10} Nutto gave R.D. and R.V. a ride to the home of R.D.'s grandmother. A short
time later, R.D. and R.V. walked down the street to the cookout. After leaving the cookout,
R.D. and R.V. decided to "get a hotel," but they needed a ride. (Tr. Vol. II at 237.) R.D. told
R.V. "he was going to call Nutto to drop us off." R.V. responded that he did not " 'think that
would be a good idea' " to call Nutto since R.D. had just taken " 'money out of his [Nutto's]
pocket in the dice game' " and had " 'just sold his gun.' " (Tr. Vol. II at 238.)
{¶ 11} R.D. called Nutto, and Nutto pulled up quickly. Nutto drove to a gas station
on Cleveland Avenue and, "out of nowhere," appellant, who R.V. referred to as "Rudy," and
another individual referred to as "Man-Man," walked up to the car. Appellant and Man-
Man got inside the vehicle. R.V. was seated in the middle back seat, with Man-Man "on the
left side of me and [appellant] * * * on the right side of me behind [R.D.]." R.V. did not
know Man-Man and appellant, but R.D. "knew them" and he "introduced me to them." (Tr.
Vol. II at 240.)
{¶ 12} After everyone got into the car, "Nutto told us he had to make a stop." They
"stopped at Nutto's people's house." (Tr. Vol. II at 241.) Upon arriving, everyone exited the
vehicle; Nutto, Man-Man, and appellant walked inside the residence, but R.V. and R.D.
No. 19AP-61 4
were left outside because "they had shut the door on us * * * and Nutto told us that he
wanted us to wait in the car because his people didn't know us, so we said okay and we sat
in the car and waited on them." (Tr. Vol. II at 242.)
{¶ 13} After approximately 20-30 minutes, the other individuals returned to the car.
Once inside the vehicle, "Man-Man told us that he had this * * * he referred to it as a lick,
somebody for us to rob for a check for some money. * * * He said somebody had got some
money * * * like, a first of the month check or something like that." (Tr. Vol. II at 242.) R.V.
testified he was not in agreement with the plan, and that he "was ready to go to the hotel. I
had told [R.D.] * * * I already had text[ed] the girls to tell them to just meet us at the hotel
* * * and they wanted to go rob somebody." (Tr. Vol. II at 245.)
{¶ 14} The others discussed robbing the individual with the check, and R.V. testified
that he had a "feeling" they were "going to make [R.D.] do it" because R.D. "had a gun on
him." However, before they "even got to the house that we was supposed to rob, Nutto had
asked did we want to go shoot up a dude named Rail's house." R.D. "had problems with a
person named Rail, so they all agreed to do it." (Tr. Vol. II at 246.) R.V. agreed to
participate also.
{¶ 15} They arrived in an alley behind this individual's house, and Nutto "told [R.D.]
to start shooting and [R.D.] had put his gun out the window like he was about to shoot."
R.V., however, who was seated behind R.D., "snatched [R.D.'s] gun out of his hand" because
R.V. "didn't see Rail" and "there were kids in the backyard." (Tr. Vol. II at 247.)
{¶ 16} The other individuals in the vehicle were mad at R.V., "cussing [him] out."
Nutto sped away from the area and drove to the house "we was supposed to rob." When
they arrived, it was "nighttime." (Tr. Vol. II at 248.)
{¶ 17} Nutto, who remained in the vehicle, "gave his gun to [appellant] when
[appellant] got out of the car and Man-Man didn't have a gun on him." R.D. "had his gun."
(Tr. Vol. II at 249.) R.V. described the weapon Nutto handed to appellant as "a Glock." (Tr.
Vol. II at 250.) R.D. exited the vehicle; R.V. also began to exit the vehicle, but R.D. "put his
hand on my chest and just pushed me back on the seat * * * lightly." R.D. said to R.V.: "
'You don't even got no gun. They already mad because you didn't let me shoot up Rail's
house, so you might as well just stay in here with Nutto and I'll be right back.' And he told
No. 19AP-61 5
me he loved me and I told him, all right, I love him too.' " At that point, appellant, Man-
Man and R.D. "got out of the car." (Tr. Vol. II at 249.)
{¶ 18} Nutto sat in the vehicle with some earphones on, while R.V. sat occupied with
his phone. A short time later, R.D. "came back running to the car and Man-Man followed
up after him running back to the car." Nutto "asked him what was wrong," and R.D. said
"I ain't feeling it, the neighbor is outside on the front porch." R.V. told R.D. he "might as
well get back in the car." Man-Man, however, "insisted that he go back." R.D. then "said,
'All right, I'm going to try again.' " (Tr. Vol. II at 251.) R.D. and Man-Man then returned to
the house.
{¶ 19} A short time later, R.V. "heard a loud sound." R.V. "snatched the earphones
out of Nutto and * * * said, 'You hear that?' " Nutto responded: " 'Yeah, that's probably
them just kicking in the backdoor.' " (Tr. Vol. II at 252.)
{¶ 20} Man-Man then "came running back to the car and * * * as soon as he had got
in the car, Nutto just took off driving and was going real fast." (Tr. Vol. II at 252-53.) Nutto
asked " 'Where's my gun,' and then Man-Man gave him the gun." (Tr. Vol. II at 253.) R.V.
testified it was the same weapon Nutto had earlier handed to appellant as appellant was
exiting the vehicle.
{¶ 21} Man-Man "was crying," and R.V. "asked him what happened." (Tr. Vol. II at
253.) R.V. then asked Man-Man: " 'Where [R.D.] at?' I'm like, 'Where the other dude,
Rudy, at?' And he was like, 'Well, I don't know, I don't know, brother, the neighbors just
came back there shooting.' " (Tr. Vol. II at 253-54.) R.V. told Nutto to turn the car around,
but Nutto indicated the car was " 'a hottie,' " meaning "it's a stolen car." They eventually let
R.V. out "in the middle of the street," and he "ran back towards the area where everything
happened." (Tr. Vol. II at 254.)
{¶ 22} As R.V. approached the area, he was "yelling [R.D.'s] name * * * hoping that
he could hear me." When he arrived "on the street * * * where it happened at, I had seen a
figure in the shadow with some shoes * * * that had reflectors on it and * * * I feel like it was
the same type shoes that [appellant] was wearing. So I didn't go back into the backyard."
(Tr. Vol. II at 254.)
{¶ 23} R.V. then ran to a friend's house and told his friend "I think [R.D.] had got
shot." (Tr. Vol. II at 255.) The friend said he could not go with him because he was watching
No. 19AP-61 6
his niece. The next morning, R.V. called his friend "Fatz," and they drove to the location,
but the area was "taped off." (Tr. Vol. II at 256.) R.V. spoke with law enforcement officers
approximately ten days after the incident. At trial, R.V. identified appellant as the same
individual, "Rudy," who he was with on the date of the incident. (Tr. Vol. II at 259.)
{¶ 24} Columbus Police Detective Daniel G. Douglas, a member of the crime scene
search unit, responded to the scene at East 15th Avenue. At trial, Detective Douglas
identified photographs taken of the crime scene and the victim, including coroner
photographs. The detective identified a shell casing found at the scene.
{¶ 25} Dr. John A. Daniels, a deputy coroner and forensic pathologist with the
Franklin County Coroner's Office, identified plaintiff-appellee, State of Ohio's, Exhibit C as
the coroner's findings for R.D. Dr. Daniels testified the victim suffered "a gunshot wound
that entered the left side of the neck and exited near the right eye." The wound "entered
towards the back of the neck." (Tr. Vol. II at 348.) Dr. Daniels estimated the wound was
inflicted from a distance of "very close to about two feet." (Tr. Vol. II at 357.) He opined
the manner of death was "homicide" caused by a "gunshot wound of the head and neck."
(Tr. Vol. II at 360-61.)
{¶ 26} On September 15, 2017, Columbus Police Officer Emanuel Woods
interviewed appellant at Columbus Police headquarters. A homicide detective, Ronda
Siniff, had asked Officer Woods to participate in the interview with appellant because the
officer had "somewhat of a * * * rapport with him." (Tr. Vol. III at 389.) The detective told
Officer Woods that "she had information that [appellant] was involved in a homicide. She
told me that -- I guess he wasn't the shooter, but they had witnesses that placed him there."
(Tr. Vol. III at 396.)
{¶ 27} During the interview, appellant told the officer that "initially it was supposed
to have been a robbery and pretty much it went a different way." Appellant stated they were
"only supposed to rob [R.D.], * * * and that Man-Man was the shooter." The incident arose
"over a gun." Appellant "said that he did not have a gun and pretty much wanted a gun."
(Tr. Vol. III at 400.) Appellant told the officer that R.D. and Nutto had earlier been involved
in "a robbery and got a gun * * * and ended up selling the gun. The gun was supposed to go
to [appellant] and they ended up selling it, so * * * Nutto called [appellant] and told him
that he'd just rob [R.D.] for his gun to get [R.D.'s] gun." (Tr. Vol. III at 400-01.)
No. 19AP-61 7
{¶ 28} Appellant stated "they were somewhere near Weber [Road] and he was
picked up by Man-Man and [R.D.] and Nutto and R.V. and they all left and went to * * *
some street and * * * the plan was to rob [R.D.] for the gun so that he can get a gun." (Tr.
Vol. III at 401.) Appellant stated they told R.D. "that some old man was staying around the
corner who had some money and they was going to kick in the door and * * * rob the old
man." Appellant told the officer it was "a made-up story, that there wasn't anybody to rob.
The whole plan was to rob [R.D.]." (Tr. Vol. III at 403.)
{¶ 29} They parked the car near a vacant house. Appellant related "that when they
got out of the car [R.D.] was * * * towards the front walking," and "Man-Man was directly
behind him * * * to the left of him." As they walked behind the house, appellant's "initial
thing was to * * * look to make sure nobody was coming and he said at that time he seen
Man-Man up the gun, which means raise the gun." (Tr. Vol. III at 404.) Appellant "said
something like, '[h]old on.' " (Tr. Vol. III at 405.) Appellant told Man-Man to hold on "to
* * * look and make sure nobody was coming." (Tr. Vol. III at 406.) After appellant "had
told him, '[h]old on, * * * that's when [appellant] said [Man-Man] just pulled the trigger,"
and appellant "heard the pop and saw him fall." Appellant informed the officer the victim
was shot "[i]n the back of the head." (Tr. Vol. III at 405.)
{¶ 30} Appellant told the officer that, after he saw R.D. fall to the ground, he "took
off running between the houses." Appellant stated that, as he was running, "there was a
house to the left of him where some old guy was * * * and the guy started shooting at him."
Appellant "continued running between the houses away from where it happened." When
asked why he did not go back to the car with Man-Man, appellant "said his thing was just
to get the gun and leave and go call his brother to come and get him." (Tr. Vol. III at 406.)
{¶ 31} At the close of the state's case-in-chief, defense counsel made a Crim.R. 29
motion for judgment of acquittal, which the trial court denied. Following deliberations, the
jury returned verdicts finding appellant guilty of murder, aggravated robbery, and having
a weapon while under disability. By judgment entry filed January 16, 2019, the trial court
sentenced appellant to a total term of 22 years to life. On January 23, 2019, the trial court
filed an amended judgment entry.
{¶ 32} On appeal, appellant sets forth the following four assignments of error for
this court's review:
No. 19AP-61 8
[I.] Rudasill's trial attorney was ineffective with resulting
prejudice because he did not move to suppress his statements,
because substantive inadmissible hearsay was introduced
without objection, and because he failed to request a jury
instruction on abandonment.
[II.] The State's evidence against Rudasill was legally
insufficient as a matter of law.
[III.] The evidence weighed manifestly against convicting
Rudasill of murder and aggravated robbery.
[IV.] The trial court committed reversible error in failing to
provide a jury instruction on the affirmative defense to
Rudasill's complicity acts.
{¶ 33} Under the first assignment of error, appellant raises claims of ineffective
assistance of counsel in which he asserts his trial counsel was deficient in failing to: (1) move
to suppress appellant's statements, (2) object to substantive inadmissible hearsay during
the trial, and (3) request an instruction on abandonment.
{¶ 34} In order to prevail on a claim of ineffective assistance of counsel, a defendant
must "show, first, that counsel's performance was deficient and second, that the deficient
performance prejudiced the defendant so as to deprive the defendant of a fair trial." State
v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 391, citing Strickland v. Washington, 466
U.S. 668, 687 (1984). Further, "[t]he failure to make either showing defeats a claim of
ineffective assistance of counsel." State v. Kennard, 10th Dist. No. 15AP-766, 2016-Ohio-
2811, ¶ 14, citing State v. Bradley, 42 Ohio St.3d 136, 143 (1989). In order to "demonstrate
that counsel's performance was deficient, appellant must show that his counsel committed
errors which were ' "so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." ' " Id. at ¶ 15, quoting State v. Phillips, 74 Ohio
St.3d 72, 101 (1995), quoting Strickland at 687.
{¶ 35} Appellant first contends his trial counsel was ineffective in failing to move to
suppress statements he made to law enforcement officials during the interview at police
headquarters. In support, appellant cites comments made by defense counsel to the jury
during opening statements in which counsel argued appellant was young and
inexperienced, that he could not read or write, and police "pretty much had their way as far
No. 19AP-61 9
as questioning my client." (Tr. Vol. II at 173.) Appellant contends that trial counsel was, in
essence, arguing he did not knowingly and voluntarily waive his Miranda rights.
{¶ 36} Because the decision whether to file a motion to suppress " 'falls within
matters of trial strategy, counsel is not required to file a motion to suppress evidence in
every case.' " State v. Riffle, 8th Dist. No. 107352, 2019-Ohio-3271, ¶ 9, quoting State v.
Price, 8th Dist. No. 90308, 2008-Ohio-3454, ¶ 19, citing State v. Flors, 38 Ohio App.3d 133(8th Dist.1987), paragraph two of the syllabus. Thus, "[t]rial counsel is not per se ineffective
when it fails to file a motion to suppress." Id., citing State v. Madrigal, 87 Ohio St.3d 378,
389 (2000). Rather, a trial counsel's "failure to file a motion to suppress constitutes
ineffective assistance only when the defendant can show that the motion 'would have "had
a reasonable probability of success" and affected the outcome of the case.' " Id., quoting
State v. Patterson, 8th Dist. No. 105265, 2017-Ohio-8318, ¶ 35, quoting State v. Sanchez,
8th Dist. No. 103078, 2016-Ohio-3167, ¶ 22.
{¶ 37} It is well-settled that "[a] suspect in police custody ' "must be warned prior to
any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if he
so desires." ' " State v. Valentine, 10th Dist. No. 14AP-893, 2016-Ohio-277, ¶ 10, quoting
State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, ¶ 6-7, quoting Miranda v. Arizona,
384 U.S. 436, 479 (1966). A suspect may, however, "waive or relinquish a known right"
and, "[i]n the context of Miranda, the United States Supreme Court has explained the two
aspects of waiver." Id. First, "relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception," and "[s]econd, the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it." Id.{¶ 38} Under Ohio law, "[a] court may infer from the totality of the circumstances
that a defendant voluntarily, knowingly, and intelligently waived his rights." Id. at ¶ 11,
citing State v. Clark, 38 Ohio St.3d 252, 261 (1988); State v. Gapen, 104 Ohio St.3d 358,
2004-Ohio-6548, ¶ 52. A review of the totality of the circumstances "includes 'the age,
mentality, and prior criminal experience of the accused; the length, intensity, and frequency
No. 19AP-61 10
of interrogation; the existence of physical deprivation or mistreatment; and the existence
of threat or inducement.' " Id., quoting State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585,
¶ 25, quoting State v. Eley, 77 Ohio St.3d 174, 178 (1996). Further, " '[o]nly if the "totality
of the circumstances surrounding the interrogation" reveals both an uncoerced choice and
the requisite level of comprehension may a court properly conclude that the Miranda rights
have been waived.' " Id., quoting Lather at ¶ 7, quoting Moran v. Burbine, 475 U.S. 412, 421
(1986).
{¶ 39} In the instant case, appellant points to nothing specific in the record
indicating he did not understand his Miranda rights so as to render his statements
involuntary. As noted under the facts, Columbus Police Officer Woods conducted an
interview of appellant at police headquarters on September 15, 2017, at the request of
Detective Siniff. At trial, Officer Woods identified state's Exhibit K as a waiver of rights
form signed by appellant. Officer Woods testified that Detective Siniff reviewed the waiver
of rights form with appellant; Officer Woods was standing in the hallway at the time and
heard the detective read the form to appellant. The interview took place at approximately
4:38 p.m.
{¶ 40} At the time of the interview, Officer Woods was not familiar with the case,
and Detective Siniff gave him very few details. The detective told Officer Woods that
witnesses had placed appellant at the scene of a shooting. Officer Woods testified the
"[s]trategy was just to go in and just look him in the eye, man to man, and * * * if you have
anything * * * to tell us, let us know. * * * I'm not in here screaming at you * * * but * * * if
you have some information * * * let us know." (Tr. Vol. III at 397.) The officer stated the
interview was recorded on both video and audio.
{¶ 41} Officer Woods testified that he initially told appellant "they had some
information on him that put him * * * at a homicide scene." (Tr. Vol. III at 398.) At first,
appellant denied any involvement. Officer Woods stated that "we continued to be calm with
him, just * * * hey, man, * * * just tell us what happened." Appellant then "put his hands on
his face, his eyes started turning like really red; so that's when I just waited to see would he
say something and that's when he started telling me about it." (Tr. Vol. III at 399.) At one
point during the interview, appellant took a piece of paper and drew a diagram, indicating
"where they parked at the house and the alleys." (Tr. Vol. III at 411.)
No. 19AP-61 11
{¶ 42} While appellant cites his age and inexperience, there is no indication from
the record that those factors prevented him from acting voluntarily. Under Ohio law, "an
individual's low intellect does not necessarily render him or her incapable of waiving
Miranda rights." State v. Lynn, 7th Dist. No. 11 BE 18, 2011-Ohio-6404, ¶ 14, citing State
v. Jenkins, 15 Ohio St.3d 164, 233 (1984); State v. Hall, 48 Ohio St.2d 325, 333 (1976).
Rather, an individual's "low intellect is but one of many factors under the totality of
circumstances that a court must consider in assessing the voluntariness of a Miranda
waiver or confession." Id., citing State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048,
¶ 113. See also Garner v. Mitchell, 557 F.3d 257, 264 (6th Cir. 2009) ("mental capacity is
one of many factors to be considered in the totality of the circumstances analysis regarding
whether a Miranda waiver was knowing and intelligent," and therefore "diminished mental
capacity alone does not prevent a defendant from validly waiving his or her Miranda
rights").
{¶ 43} The record indicates appellant was 21 years of age at the time of the events
and had some prior experience with law enforcement. While appellant emphasizes he is
unable to read and write, Officer Woods testified that Detective Siniff read and reviewed
with appellant his Miranda rights, and appellant signed the waiver of rights form. Further,
there is nothing in the record to suggest he had difficulty understanding or answering the
interview questions; Officer Woods testified that appellant did not appear confused during
the interview, and he never told the officer he did not understand any of the questions.
Appellant does not identify, nor does the record indicate, any coercive tactics by police
officers conducting the interview. At no time did appellant request the presence of an
attorney or family member. The record also does not suggest police pressured appellant
into making the statements; as noted, at one point during the interview appellant willingly
drew a diagram of the crime scene for the officers.
{¶ 44} Here, in the absence of evidence of police overreaching or any indication
appellant was unable to understand the rights he was waiving, the record fails to support a
claim the statements were involuntary or taken in violation of Miranda. Appellant has
therefore failed to demonstrate a reasonable probability that a motion to suppress would
have been successful. Accordingly, appellant's counsel was not ineffective in failing to file
a motion to suppress.
No. 19AP-61 12
{¶ 45} Appellant also contends his trial counsel was ineffective in failing to object to
substantive hearsay during trial. Specifically, appellant argues R.V. was permitted to
speculate that appellant agreed to a plan to rob an individual of a paycheck, and that R.V.
similarly speculated appellant agreed to participate in shooting up the house of an
individual named Rail. Appellant further argues counsel should have objected to R.V.'s
statement that he had a feeling appellant was going to make the victim commit a robbery.
{¶ 46} To the extent appellant challenges R.V.'s testimony about statements made
by appellant, we agree with the state that such statements were admissible as admissions
by a party opponent under Evid.R. 801(D)(2). Pursuant to Evid.R. 801(D)(2)(a), a
statement is not hearsay if it is "offered against a party and is * * * the party's own
statement." Thus, any objection to admission of those statements would have not been
successful.
{¶ 47} As noted, appellant also challenges R.V.'s statements regarding plans by
those in the vehicle to rob an individual of a check and to shoot up an individual's house as
inadmissible hearsay. We disagree. Pursuant to Evid.R. 801(C), hearsay is defined as "a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted."
{¶ 48} In the present case, R.V. provided direct testimony regarding the events on
the date of the incident, including his acquiescence in the decision to drive to the house of
an individual named Rail and to shoot up the house, and he also testified as to his
observations of the other individuals, including appellant. Stated otherwise, R.V. provided
testimony as an eyewitness to the events (i.e., based on his own personal observations and
not out-of-court statements), he was subject to cross-examination on those matters, and
such testimony did not constitute hearsay. See, e.g., State v. Perry, 8th Dist. No. 65455
(May 12, 1994) ("[p]ersonal observations of a witness are not hearsay"); State v. Havens,
9th Dist. No. 20020 (Nov. 1, 2000) (testimony of deputy was not hearsay because he did
not testify to any out-of-court statements but, rather, testimony "was based on his own
personal observations"); State v. Waver, 12th Dist. No. CA2015-08-155, 2016-Ohio-5092,
¶ 51 (like any other witness, testimony by co-conspirator "regarding her direct observations
and actions was admissible, regardless of her status as a co-conspirator" and,
"[a]dditionally [the co-conspirator] could testify to any statement made directly to her by
No. 19AP-61 13
appellant, as an admission by a party-opponent pursuant to Evid.R. 801(D)(2)(a)"). Here,
counsel was not ineffective for "failing to object to admissible evidence." State v. McKinzie,
10th Dist. No. 00AP-1182 (June 5, 2001).
{¶ 49} Appellant also contends his trial counsel was ineffective for failing to request
an instruction on abandonment, asserting that the only rational affirmative defense to
felony murder was to argue he withdrew from the alleged plan to rob R.D. Appellant
maintains there was evidence of abandonment based on the testimony of Officer Woods as
to statements made by appellant during the interview; specifically, appellant points to
testimony by the officer indicating that appellant, at the time Man-Man raised the gun, told
him to "[h]old on." (Tr. Vol. III at 405.) Appellant argues, therefore, his counsel should
have objected to the court's failure to charge on the affirmative defense as outlined in R.C.
2923.03(E).
{¶ 50} The affirmative defense of abandonment "is a possible defense to a conviction
for complicity in the commission of an offense under R.C. 2923.03(E)." State v. Hawkins,
8th Dist. No. 44747 (Dec. 16, 1982). R.C. 2923.03(E) states: "It is an affirmative defense to
a charge under this section that, prior to the commission of or attempt to commit the
offense, the actor terminated his complicity, under circumstances manifesting a complete
and voluntary renunciation of his criminal purpose."
{¶ 51} A review of the record indicates the defense's theory of the case, as reflected
by counsel's comments during closing argument, was that appellant was aware of a plan to
rob an unnamed individual of a check, but that he "didn't know that the actual victim of the
robbery was going to be [R.D.]." (Tr. Vol. III at 530.) Defense counsel further argued
appellant did not want to be involved in "any homicide." (Tr. Vol. III at 533.)
{¶ 52} As argued by the state, a denial of involvement is inconsistent with a claim of
abandonment. See, e.g., State v. Sheridan, 3d Dist. No. 5-80-31 (June 25, 1981) (charge on
abandonment neither justified nor required as defendant's denial he had any intent to
commit rape or to attempt to commit rape was "totally inconsistent with a theory of
abandonment of an attempted crime"); State v. James, 8th Dist. No. 72922 (Sept. 24, 1998)
(defense counsel not ineffective in failing to raise affirmative defense of abandonment
where thrust of appellant's defense at trial was that he did not participate in any way in the
shootings of the victims whereas a defense of abandonment, by contrast, "implies initial
No. 19AP-61 14
participation in a scheme but then renunciation of it"); State v. Whitfield, 2d Dist. No.
12297 (Jan. 17, 1992) (appellant's defense that he was totally without criminal culpability
"would have been inconsistent with a defense of having completely and voluntarily
renounced a prior criminal purpose"); State v. Fickenworth, 10th Dist. No. 13AP-826,
2014-Ohio-2502, ¶ 15 (trial court did not err in failing to instruct on abandonment where
appellant "unequivocally" denied being involved in a conspiracy to commit murder).
{¶ 53} Further, in order to prove abandonment/termination, a defendant is
required to show that he "manifested a complete and voluntary renunciation of his criminal
purpose." State v. Hernandez-Martinez, 12th Dist. No. CA2011-04-068, 2012-Ohio-3754,
¶ 40. As noted, appellant argues that his statement to "hold on" evinced abandonment of
any participation in the robbery of R.D. According to the testimony of Officer Woods,
however, appellant's initial role was to "look to make sure nobody was coming." (Tr. Vol.
III at 404.) Officer Woods further testified that when Man-Man raised the weapon,
appellant told Man-Man to hold on "just to * * * look and make sure nobody was coming."
(Tr. Vol. III at 406.)
{¶ 54} Under Ohio law, "[w]here one abandons an attempted crime because he fears
detection or realizes that he cannot complete the crime, the 'abandonment' is neither
'complete' nor 'voluntary.' " State v. Chafin, 5th Dist. No. 2019 CA 00014, 2019-Ohio-5306,
¶ 29, quoting State v. Woods, 48 Ohio St.2d 127, 133 (1976), overruled on other grounds,
51 Ohio St.2d 47. See also State v. Green, 4th Dist. No. 92 CA 32 (Dec. 14, 1993) (noting
"[m]any [Ohio] courts have agreed that the act of ending a crime due to the fear of detection
is not a 'complete and voluntary renunciation' "). Further, "the mere act of telling someone
not to do a crime does not manifest a 'complete and voluntary renunciation of [a] criminal
purpose.' " State v. Washington, 6th Dist. No. L-90-199 (May 31, 1991), quoting R.C.
2923.03(E).
{¶ 55} Given the defense's theory of the case and the evidence presented, we find
unpersuasive appellant's contention that defense counsel was ineffective in failing to
request an instruction on abandonment under R.C. 2923.03(E). Based on the foregoing,
appellant has failed to establish ineffective assistance of counsel under Strickland.
{¶ 56} Appellant's first assignment of error is not well-taken and is overruled.
No. 19AP-61 15
{¶ 57} Appellant's second and third assignments of error are interrelated and will be
considered together. Under these assignments of error, appellant challenges both the
sufficiency and the weight of the evidence supporting his convictions.
{¶ 58} A motion for judgment of acquittal under Crim.R. 29(A) "tests the sufficiency
of the evidence." State v. Samuel, 10th Dist. No. 11AP-158, 2011-Ohio-6821, ¶ 22, citing
State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12, citing State v. Knipp, 4th
Dist. No. 06CA641, 2006-Ohio-4704, ¶ 11. Thus, an appellate court reviews the trial court's
denial of appellant's motion for acquittal "using the same standard applicable to a
sufficiency of the evidence review." Id., citing Reddy, citing State v. Darrington, 10th Dist.
No. 06AP-160, 2006-Ohio-5042, ¶ 15. In considering a sufficiency challenge, "the test is
whether after viewing the probative evidence and inferences reasonably drawn therefrom
in the light most favorable to the prosecution, any rational trier of fact could have found all
the essential elements of the offense beyond a reasonable doubt." State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983).
{¶ 59} By contrast, in considering a challenge to the manifest weight of the evidence,
a reviewing court "may not merely substitute its view for that of the trier of fact," but rather
"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. Boone, 10th Dist. No.
14AP-87, 2015-Ohio-2648, ¶ 49, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
Further, "[t]he discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction." Martin at
175.
{¶ 60} We first consider appellant's contention that the state's evidence was
insufficient to convict him of complicity to commit aggravated robbery and murder. R.C.
2911.01(A) defines the offense of aggravated robbery, and states in part: "No person, in
attempting or committing a theft offense, * * * 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 * * * brandish it * * * or use it; * * *
(3) Inflict, or attempt to inflict, serious physical harm on another." R.C. 2903.02(B) defines
No. 19AP-61 16
the offense of murder (i.e., felony murder) as follows: "No person shall cause the death of
another as a proximate result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second degree."
{¶ 61} R.C. 2923.03 sets forth Ohio's complicity statute. R.C. 2923.03(A) states in
part: "No person, acting with the kind of culpability required for the commission of an
offense, shall * * * (2) Aid or abet another in committing the offense." The Supreme Court
of Ohio has held that R.C. 2923.03 "does not define 'aid or abet,' but this court has stated
that to aid or abet is ' "[t]o assist or facilitate the commission of a crime, or to promote its
accomplishment." ' " State v. McFarland, __ Ohio St.3d __, 2020-Ohio-3343, ¶ 27,
quoting State v. Johnson, 93 Ohio St.3d 240, 243 (2001), quoting Black's Law Dictionary
69 (7th Ed.Rev.1999).
{¶ 62} In order " '[t]o 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.' " Id.,quoting Johnson at syllabus. Further, " ' "[p]articipation in criminal intent may be inferred
from presence, companionship and conduct before and after the offense is committed." ' "
Id., quoting Johnson at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971).
{¶ 63} Appellant acknowledges the state proved his presence at the scene, but
contends it failed to prove he supported, assisted, encouraged or cooperated with Man-Man
in the offenses. According to appellant, he was unaware of Man-Man's intent to shoot the
victim.
{¶ 64} With respect to the sufficiency of the evidence to support the conviction for
aggravated robbery, the record indicates the state presented testimony by R.V. that
appellant was with Man-Man and Nutto on the date of the incident. R.V. testified that,
earlier that day, R.D. and Nutto had entered someone's house and stole a gun. Nutto and
R.D. subsequently got into an argument about "whose gun it was." (Tr. Vol. II at 231.)
Nutto then became upset when he learned R.D. had sold the gun to another individual.
{¶ 65} Later that evening, R.D. and R.V. attended a cookout, and R.D. then called
Nutto to ask if he would drive them to a hotel. Nutto arrived in a vehicle and picked up R.D.
and R.V. He then drove to a gas station and, "out of nowhere," appellant "and Man-Man
No. 19AP-61 17
came up to the car." (Tr. Vol. II at 240.) Appellant and Man-Man got inside the vehicle
with Nutto, R.V., and R.D. Nutto "told us he had to make a stop," and "[w]e * * * stopped
at Nutto's people's house." (Tr. Vol. II at 241.) Upon arriving at a residence, Nutto, Man-
Man, and appellant went inside, but R.D. and R.V. were told to remain outside in the car.
{¶ 66} Nutto, Man-Man, and appellant returned to the vehicle about "20 to 30
minutes" later. Nutto and Man-Man then discussed robbing someone who had just "got
some money" from receiving a monthly check. (Tr. Vol. II at 242.) Before driving to that
location, Nutto "asked did we want to go shoot up a dude named Rail's house." According
to R.V., this individual (Rail) and R.D. had "beefed with" each other previously. (Tr. Vol. II
at 246.) They arrived at an alley behind Rail's house, and R.D. had a weapon with him.
R.D. reached the weapon outside the car window, but R.V. grabbed R.D.'s weapon and told
him "we're not going to shoot up that house" because R.V. "didn't see Rail" and "there were
kids in the backyard." (Tr. Vol. II at 247.)
{¶ 67} The others in the vehicle were mad at R.V., and Nutto sped away. Nutto then
drove "to the house we [were] supposed to rob." (Tr. Vol. II at 248.) Upon arriving, Nutto
remained in the car, but Nutto "gave his gun to [appellant]." R.D. also had a gun, but Man-
Man did not have a weapon. R.V. tried to exit the vehicle, but R.D. told him to remain with
Nutto because the others were " 'already mad because you didn't let me shoot up Rail's
house.' " (Tr. Vol. II at 249.)
{¶ 68} Appellant, Man-Man, and R.D. then exited the vehicle and walked to the back
of the residence. A few seconds later, R.D. came running back to the car with Man-Man
following him. R.D. said "I ain't feeling it, the neighbor is outside on the front porch." Man-
Man, however, talked R.D. into going back, and R.D. said he would "try again." (Tr. Vol. II
at 251.) R.V. subsequently heard a loud noise, and Man-Man returned to the car and Nutto
drove away quickly. Man-Man handed Nutto "the same gun" Nutto had earlier given to
appellant. (Tr. Vol. II at 253.) R.V. demanded that Nutto stop the car and let him out. R.V.
walked back toward the residence and observed a figure "in the shadow with some shoes"
that R.V. thought resembled "the same type shoes that [appellant] was wearing," so he
"didn't go back into the backyard." (Tr. Vol. II at 254.)
{¶ 69} The state also presented the testimony of Officer Woods who, at the request
of a detective, interviewed appellant one month after the shooting. The detective requested
No. 19AP-61 18
that the officer conduct the interview because he had a prior rapport with appellant. Officer
Woods was not familiar with the case; the detective indicated "they had witnesses that
placed [appellant]" at the scene of a homicide. (Tr. Vol. III at 396.)
{¶ 70} During the interview, appellant initially "denied it," stating "I don't know
anything." (Tr. Vol. III at 398.) Appellant's eyes then "started turning * * * red," and "he
started telling [Officer Woods] about it." (Tr. Vol. III at 399.) Appellant told the officer
that "initially it was supposed to have been a robbery and pretty much it went a different
way." Appellant stated they were "only supposed to rob R.D.," and "Man-Man was the
shooter." The incident "happened over a gun." Appellant "said that he did not have a gun
and pretty much wanted a gun." (Tr. Vol. III at 400.) Earlier on the date of the incident,
R.D. and Nutto had stolen a gun from a residence, and "[t]he gun was supposed to go to
[appellant] and they ended up selling it, so [appellant] told me that Nutto called him and
told him that he'd just rob R.D. for his gun." (Tr. Vol. III at 400-01.)
{¶ 71} On the evening of the events, appellant was "somewhere near Weber [Road]
and he was picked up by Man-Man and [R.D.] and Nutto and [R.V.] and they all left and
went to * * * some street and pretty much the plan was to rob [R.D.] for the gun so that
[appellant] can get a gun." (Tr. Vol. III at 401.) Appellant told the officer the others were
"telling [R.D.] that some old man was staying around the corner who had some money and
they was going to kick in the door and pretty much rob the old man. So that's * * * the story
that was told to [R.D.] so he would go along." The house where the events occurred was
vacant, "and the plan was that's where they [were] going to rob him at, where it was dark."
Appellant told the officer the discussion of robbing an old man was "a made-up story, that
there wasn't anybody to rob. The whole plan was to rob [R.D.]." (Tr. Vol. III at 403.)
Appellant stated he was brought into the plan approximately "15 to 20 minutes" before the
incident. (Tr. Vol. III at 408.)
{¶ 72} After appellant, Man-Man, and R.D. exited the vehicle and walked toward the
back of the house, appellant's "initial thing was to * * * look to make sure nobody was
coming and he said at that time he seen Man-Man * * * raise the gun." (Tr. Vol. III at 404.)
Appellant told the officer "he said something like, '[h]old on,' * * * to make sure nobody is
coming. So [appellant] had told [Man-Man], '[h]old on,' and that's when [Man-Man] just
pulled the trigger and [appellant] heard the pop and saw [R.D.] fall." (Tr. Vol. III at 405.)
No. 19AP-61 19
At first, appellant told the officer he did not see Man-Man fire the weapon, but he later
"went back and changed his story and he said, yeah, I seen him shoot. He said, I seen his
body drop," and "he also said he [saw] the muzzle flash." (Tr. Vol. III at 404.) Appellant
told the officer R.D. was shot in the "back of the head." (Tr. Vol. III at 405.) After the shot
was fired, appellant "took off running between the houses." (Tr. Vol. III at 406.)
{¶ 73} Construing the evidence most strongly in favor of the prosecution, as
required in considering a sufficiency challenge, the record provides sufficient evidence to
support appellant's conviction for complicity to commit aggravated robbery. As set forth
above, the state presented evidence that appellant was involved in a plot to rob R.D. of his
weapon. The state's theory of the case was that appellant, Nutto, and Man-Man planned
the robbery approximately 20 to 30 minutes before the shooting incident when they went
inside "Nutto's people's" house and told the juveniles, R.D. and R.V., to remain outside.
After returning to the car, these individuals begin talking about robbing an elderly man of
a check. During the police interview, appellant told Officer Woods that the discussion of
robbing an old man was a made-up story to make R.D. go along. Appellant admitted to
Officer Woods that the plan was to rob R.D. of his weapon; specifically, appellant explained
the intent of the robbery was "so that he can get a gun." (Tr. Vol. III at 401.)
{¶ 74} When they arrived at the location of the shooting, Nutto handed his weapon
to appellant as appellant exited the vehicle. When Man-Man returned to the vehicle after
the shooting, he handed Nutto the same weapon Nutto had given to appellant moments
earlier. The victim died of a gunshot wound to the back of the head. During the police
interview, appellant drew a sketch of the scene where the events took place. Based on the
evidence presented, the jury could have reasonably concluded that appellant participated
in a plan to commit a theft offense and that a deadly weapon was either brandished or used
and/or that serious physical harm was recklessly inflicted on the victim during the theft
offense.
{¶ 75} The evidence also supported appellant's conviction for complicity to commit
felony murder. As set forth above, the state presented evidence that appellant conspired
with Nutto and Man-Man to rob R.D. so that appellant could obtain a weapon, ultimately
leading to the death of R.D. Appellant was aware that weapons were involved in the
robbery. As noted, R.V. testified that Nutto handed appellant his (Nutto's) weapon when
No. 19AP-61 20
appellant exited the vehicle at the crime scene. According to the testimony of Officer Woods
(who conducted the interview of appellant), appellant's role was to look out for anyone else
in the area. Appellant admitted to the officer that he observed Man-Man fire the weapon
to the back of the victim's head, and appellant did not flee the scene until after the shooting.
{¶ 76} While appellant contends he was unaware Man-Man was going to use the
weapon in the robbery, "the state was not required to prove that." State v. Kimble, 7th Dist.
No. 06 MA 190, 2008-Ohio-1539, ¶ 26. Rather, "[v]iolation of the complicity statute
requires that the accomplice be treated 'as though he was the one who committed every act
of the underlying principal offense.' " Id. at ¶ 27, quoting State v. Letts, 2d Dist. No. 15681
(June 22, 2001). Thus, "under Ohio's felony-murder statute, it is irrelevant whether the
killer is the defendant, an accomplice, or a third party." State v. Ford, 10th Dist. No. 07AP-
803, 2008-Ohio-4373, ¶ 32, citing State v. Franklin, 7th Dist. No. 06-MA-79, 2008-Ohio-
2264, ¶ 111. Further, "purpose to kill is not an element of the crime and need not be proven,"
as "the mens rea for felony murder is the intent that is required to commit the underlying
predicate offense." State v. Maynard, 10th Dist. No. 11AP-697, 2012-Ohio-2946, ¶ 17.
{¶ 77} Under Ohio law, a defendant can be held criminally responsible for a killing
"regardless of the identity of * * * the person whose act directly caused the death, so long as
the death is the 'proximate result' of Defendant's conduct in committing the underlying
felony offense." State v. Dixon, 2d Dist. No. 18582 (Feb. 8, 2002). The Supreme Court has
held that "[t]he offense of aggravated robbery, when committed with a loaded gun, is 'likely
to produce death.' " State v. Carter, 72 Ohio St.3d 545, 554 (1995), quoting State v. Widner,
69 Ohio St.2d 267, 270 (1982). In this respect, Ohio courts have noted that, where a
defendant is an active participant in an aggravated robbery, acting with knowledge that a
firearm is involved, a resulting death of the victim is "a direct, natural, and reasonably
foreseeable consequence of the aggravated robbery." State v. Taylor, 6th Dist. No. L-11-
1202, 2013-Ohio-5182, ¶ 38. See also State v. Jennings, 10th Dist. No. 09AP-70, 2009-
Ohio-6840, ¶ 51 (victim's death "was a reasonably foreseeable consequence of defendants'
aggravated robbery offense regardless of which of the two defendants pulled the trigger").
{¶ 78} Viewing the evidence in a light most favorable to the prosecution, a rational
trier of fact could have found that all the elements of complicity to commit aggravated
No. 19AP-61 21
robbery and murder were proven beyond a reasonable doubt. We therefore find
unpersuasive appellant's sufficiency challenge.
{¶ 79} Further, on review of the entire record, we cannot conclude the jury clearly
lost its way and created a manifest miscarriage of justice such that the convictions must be
reversed as against the manifest weight of the evidence. Here, the trier of fact could have
reasonably found credible the testimony of R.V. and Officer Woods in concluding that
appellant actively participated in a plan to rob R.D. of a weapon, and that R.D.'s death was
the proximate result of the commission of the predicate offense of aggravated robbery. See,
e.g., State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 54 (jury did not clearly lose
its way in concluding victim's death was a foreseeable result of aggravated robbery where
appellant and co-conspirators went to victim's residence armed with guns to commit
robbery); Kimble at ¶ 57 (convictions for complicity to aggravated robbery and murder not
against the manifest weight of the evidence where testimony showed appellant "assisted
knowingly in the planning of the robbery, which occurred with a gun and resulted in
[victim] getting killed from a gunshot wound").
{¶ 80} Based on the foregoing, appellant's second and third assignments of error are
not well-taken and are overruled.
{¶ 81} Under the fourth assignment of error, appellant asserts the trial court erred
in failing to provide a jury instruction on the affirmative defense of abandonment.
Appellant argues, as he did under his first assignment of error, there was sufficient evidence
to consider his withdrawal/abandonment of complicity to commit the offenses.
{¶ 82} Crim.R. 30(A) governs instructions, and states in part: "On appeal, a party
may not assign as error the giving or the failure to give any instructions unless the party
objects before the jury retires to consider its verdict, stating specifically the matter objected
to and the grounds of the objection." Where no objection is made as to the failure of a trial
court to instruct on the affirmative defense of abandonment, "this issue must be reviewed
under the plain error doctrine." State v. Musgrave, 5th Dist. No. 98CA10 (Apr. 24, 2000).
Under Ohio law, "a trial court does not err in failing to instruct the jury on an affirmative
defense where the evidence is insufficient to support the instruction." State v. Reeves, 12th
Dist. No. CA2020-01-001, 2020-Ohio-5565, ¶ 14, citing State v. Palmer, 80 Ohio St.3d 543,
564 (1997); State v. Davis, 12th Dist. No. CA2015-05-015, 2016-Ohio-1166, ¶ 35.
No. 19AP-61 22
{¶ 83} In previously addressing appellant's ineffective assistance of counsel claim,
we noted the defense's theory of the case was that appellant, while aware of a plan to rob an
unnamed individual of a check, was not aware the actual victim of the robbery was to be
R.D. Defense counsel further argued at trial that appellant did not want to be involved in a
murder. In rejecting appellant's claim that his counsel was ineffective in failing to request
an instruction on abandonment, we observed that appellant's denial of involvement was
inconsistent with a claim of abandonment. See, e.g., Fickenworth at ¶ 15 (no error in failing
to give instruction on abandonment where appellant "denied the conduct"); State v. Adair,
10th Dist. No. 86AP-23 (Nov. 18, 1986) (trial court did not err in failing to give instruction
on abandonment where appellant's argument was "not that he abandoned his complicity,"
but rather that he "did not participate at all in the crime").
{¶ 84} In addressing that claim, we also cited testimony by Officer Woods (based on
his interview with appellant) that appellant's statement telling Man-Man to "[h]old on" was
in order to "look and make sure nobody was coming" (i.e., to avoid detection as opposed to
a complete and voluntary renunciation of the crime). (Tr. Vol. III at 405-06.) Having
rejected appellant's contention that his trial counsel was ineffective in failing to request a
jury instruction on abandonment, we similarly find, in light of the defense's theory of the
case and the evidence presented, no plain error by the trial court in failing to provide an
instruction on abandonment.
{¶ 85} Appellant's fourth assignment of error is not well-taken and is overruled.
{¶ 86} Based on the foregoing, appellant's four assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
SADLER and KLATT, JJ., concur.
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