13EFORE THE SUPREME CC3"R"T OF 01110

STATE OF CIMO CASE NO.a 201.4w0255

PLAINTi _^FLLI"^^PELLANNT

avso^^ ^^EAIa FROM ^^^^^^GCOLTNTY COURT GIF APPEALS,SEVENTH APPELLATE DISTRICT.

JEFF REY SHORTER

I^^^^NDAN'I'mAPPEL,LEEC,OUR'I' OF APPEALSCase No. 12 MA 55.

STATE OF C.^^^ ^^ MEMO:RANDUM IN SUPPORT OF JURISDICTION

_.,Y -------- - - ^,

PAUL J. GAINS, 0020323MAHONING COTTN'I'Y PROSECUTOR

KRISTOPHER A. HAINES, 0080558ASSISTANT PUBLIC DEFENDER

RALPH M. RIVERA, 0082063ASSIS'I'`T PROSECUTORCr^ umvelof.^^^^rd

OFFICE OF ThTE:[°^^^^NIN^ COUNTYPROSECUTOR2^. W. BO.^^N s'^'. s ^^^ FL.YOUNGSTOWN, OH 44503PH: (330) 740w2330FX: (330) 740-2008^^^@maho^^^^ ^^yo^ ^^^^^^^4@m^^^a^^

COUNSEL FOR PLAIN.^ IFFM^^ELLANT

OFFICE OF THE OFIO PLTLICDEFEN-DER250 E. 13RO.^ ^TRIE-El', SUITE 1400C^1:01MBUS, 01T ^^^^^^^^ (614) 466k5394FX: (614) 752a5167kristopher.h4in^^^,^spd.ohio^^^

COUNSEL FOR DEI^ENDANTYAPPELLEE

;;.:..... ...... .:..i

I': ; '%

MAR3 12014

CLERK OF COURT

:`;-,:%;i;;;, ;;,•;,,.;.

HIO

^ert.^fic^te of ^ervice

I certify that a copy of the State of Ohio's Memorandum in Support of

Jurisdiction was sent by ordinary U.S. mail to the follo,%kir^^ party on March. 28, 2014;

Kristop her A. Haines, Esq.Office of the 0-hia State Public Defender250 E. Broad Street, SWte 1400Coluxi:bus, OH 43215

So Certified,

^M.^FS't

^^ , 0082063t^ ^f C^hi€^- ^xl^r^^

ii

'I'able of Contents

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . ii................................................<...,,^^

...TABLE OF COl^T''E^I^'S .......................................................................:...^^^

S'I'ATEMEN`I` OF WHY THIS IS A CASE OF GREIAT PLTBLIC OR GENERAI.,IN'I'^^ST THAT I^^^ShN17S A SUBSTANTIAL CONSTITUTIOINAL QUTEPIS`I'ION.,I

STATEMENT OF THE CASE, FACTS, AND IN"I'RODUC"I'ION.. . : . . . . . . . . . . . . . .. . . . ...... 3

LAW AND ^GUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . < . . , , . . . . . . . . . . . . . . . . . . . . . . . . ...^

Prop ma^on of Law No. 1: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..9Because an Appellate Court Must Review the Evidence in a LightMost Favorable to the Prosecution I^uriiag a Sufficiency Review, anAppellate Court May Not Tak.e into Consideration Any Inferencesthat a^e.Inc®nsisI^ent with the State's Theory of the Case.

CONCL1;JSION . . . .. . . . . . . . . . . . .. . .. ... ... .. . ... . . . :. . , .. . . : . . . . . . , . . .. . . .. .. : . . ........................... 15

iii

^^^^ement of Wh This fs a Case of Great Public or GeneralInterest that Presents a Substantial Constitutional

This case presents a substantial constitutional question and is one of great public

and general interest, where the Mahoning CoLmtdr Court of Appeals, S^^entb. Appellate

D%-qtdct, vacated Defendant's convictions for Aggravated Robbery, with the

a^^^mPanying Firearm Specification, and :Cl^^^^ Weapons °^Vhil^ Under Disabi1ityy, after

it ^^o-neausly applied the wel1Mestablislxed law concema^g an appellate court's review of

whether the state presented su`l^ci^^^ evidence to support a defendant's conviction. See

State v. Shorter, 7^h Dist. No. 1. 2 ^MA 5 5, 2014 Ohio 5 8 1, T^. 40.

ljurther, ^^^ State has. a similar issuing currently pending before this Honorable

Court in State v. Tesyk, Case No. 2014W0304 (currently pending on. the State's

Memorandum in Support of Jurisdiction). ^^ere, like in Tesyk, the ^eventb District

erroneously applied the well-established law ^once-ni1^^g an appelsate court's review of

whether the state presented sufficient evidence to support a defendant's conviction.

On appeal, Defendant contended that the State failed to present sufficient

evidence to support his ^onvlctio-ns for A^^a^r^.ted Robbery, with the Flre^

Specification, and Having Weapons While Under Disability. Specifically, 1^^^endant

argucd ldmt there was insufficient evidence that 1^e aided and ^;betted Stanley Croom in

robbing Belleria P1z7a in Youngstown,

To begin, it is well. settled that in reviewing whether the evidence is sufficient to

support a. criminal conviction, the appellate court's function is to view the evidence in a

light niost favorable to the prosecution. See State v. Jenks, 61 Ohio St.3d 259, paragraph

two of the syllabus (1 991 )4 accord State v. Hunier, 131 Ohio St.3d 67, 84, 960 N.E.2d

955 ^2011^^ State v. Robinson, 124 Ohio St.3d 76, 82, 919 N.E.2d 190 (2009).

1

i-ierex when viewing the evidence in a light most favorable to the prosecutions the

State presented sufficTent evidence to support Defendant's convictions for Aggravated

Robberdr$ writh the accompanying Firearm Specification, and Having Weapons ^Vhiie

Under Disability.

Here, the ^ev^nth- District erroneously applied this Court's welinestabiiLhed law

^^^^emzng an appellate courtss f.9mct^on ^^ r^^^ewing a suffilc$.ency claim, because it to0k

into consideration several inferences that were inconsistent with the State's theoq of the

case before it concluded that the State ffaiied to present sufficient evidence to support

i^^ ^ ^ndant' s convictions.

At trial, the State presented sufficient evidence that Shorter aided and abetted

Croom before and after he attempted to rob the Belieaia that evening. Shorter waited for

Croom outside the Belieriao Shorter I-ove Croom to and from Beileria, that evening.

Croor-i furtlier borrowed Shorter's items to effectuate the robbery-pair of gloves.

Therefore, the State presented suffflicient evidence that Shorter aided ar-d. abetted

Croom before and after he robbed the Belleria Pizza in Youngstown.

Accordingly, tl-ii^ case presents a substantial constitutional question, and is one of

great public and general ig-iterest.

Thus, the State of Ohio-Appellant prays this Honorable ^^^ ^^^e-pt jurisdiction,

and allow the State to fully and accurately brief its argument.

^

^^^^ements of theCases Factsg and Intro€IuctIon

Defenc1antLLA.ppeIree Jeffrey S:^or-ter was convicted of Aggravated Robbery, in

violation of R.C. 2911.01 (A)(I)(C)q a felony of the first degree, with the accompanying

Firearm Specification, iin- vioIataon of R.C. 2941..I45(A)j and Having Weapons While

Under Disability, ir. violation of R.C. 2923.13(A)(2)(B), a felony of °,.^^ ^^rd degree.

(Trial Tr., Vol. V, at I033w1034.)

Defendant's co-^^^endant, Stanley ^^^orr, was convicted of Aggravated

Robbery, in violation of R.C. 2911.01 (A)(I)(C), a felony of the first degree, with ^e

a^^ornIS^.^^°sng I'^^eam, Specl.ficetion, in vi.olat^^in of R.C. 2941.145(A)s Attempted

^^grav^^ed:E^urder, in violation of R.C. 2903.02(A) and R.C. 29€13.0I(A)(F), a felony of

the first degree; 1tetaliation, in violation of R.C. 2921.05(B)(C), a felony of the third

degree; and Having Weapons While Under Disability, in vlolatic^ll of R.C.

2923.13(A)(2)(B), a felony of the third degree. (Trial `I'raii^cript, February 2, 2012,

before the 1=Ionorab1e Lou A.D`A.polito, Vo1. V, at 1032-1033.) Croom was also found to

be a Repeat Violent Offena^er,1r, violation of R.C. 29

The following facts were 1n^od^^ed. at trial that established Stanley C^oorn and

Jeffrey Shorter's guilt beyond a reasonable doubt.

A-roand 7:20 p..rn. on December 27, 2009, Stanley Croom came into the Bellerla

Pizza on Wick Avenue in Youngstown. (Trial Vol. III, at 5 3 5 .) MyLinda ^eamans, a

Belleria employee that everai-ng3 asked Crr^orn if he had plac-ed €^rder. (°I'^ici1 Tr., Vol. III,

at 535.^ Croom grabbed Seamans bv her aim and told her to give him the money and

nobody will get hurt. (Trial Tr., Vo1. 111, at 535.) Croom had. a black revolver with a

brown ^^^dgrip a^. his other hand. ('p^a.1 'I'r., Vol. III, ^.^. 536, 53 8e) Se^^s pushed the

3

panic button lmdemeath the counter near the cash r-vgast^r and arLempted to open it, but it

would not open. (Trial Tr., Vol. III, at 537.)

Seamans testified that Croom had. on a black jacket 'with fur around the hood and

a pair of black gloves with yellow writing. (Trial Tr., Vol. III, at 538.) She described

Croom as about 5'8", mkvbe 200 lbs., and having no facial hair. (Trial Tr., V€sl. IIIg at

542m543.)

Jacquelyn Richards, another Belleria employee, testified that the swlaect wore a

black coat with fur around the hood. (Trial Tr., Vol. III, at 519.)

Seamans stwLecl that Crooa^i tl.ed Be1ler1a after she was unable to open the cash

regrtster. (Trlal Tr., Vol. III, at 539.) Seamans immediately lo6.{^^d all the doors, and

called NLr. Liberato, Belleria's owner, mid told him what happened. (Trial Tr., Vol. Ilat

540.) CIarystal.McMillan3 another employee, ca.led 911. (Trial T'r.$ Vol. III:, at 540-541.)

Seamans spoke to Youngstown DetectivemSerge^.^°kt D®n-ald P. Scott two days later

on December 29, 2009. (Trial jl"r., Vol. 111, at 545.) They spoke in Liberato's office at

Belleria. (Trial 'I'r,s Vol. IIIr at 546.) Scott showed ^eamans two photographic arrays.

^^arnans did not recognize anyone in the first photo array. (Trial Tr., Vol. 111, at 547;

State's Exhibit No. 3.)

^eama, xss however, identified Croom in the second array as the Is^^^oir, who came

into Belleria and held a gun. to hcx t%,m days prlor. ('I"nia,l 'I'r., Vol. III, at 547-548, 550;

State's F-xhihit N®. 2.)

At trial, Seamans identified Croom in the couttrwrsm. (Trial Tr., Vol. Ill:s at 556-

557.) Seamans also identified State's Exhibit No. 6 as the gloves that Croom wore that

evening. (Trial Tr., Vol. III, at 559.)

4

Acoi.and 7:30 p.m. that evening, Youngstown Officer Brad Ditullio responded to

the robbery at Belleria. (Trial Tr., Voi. II, at 475N476.) Ditullio obtained the suspect's

descrlptIonq black male, around 50 years of age, six foot, 200 pounds, a dark or black

coat with brown fur ^o-und the hood, and "a black stocking cap or wave capo" (Trial 'I"r.s

Vol. 11, at 479, Vol. IIIq at 504.) The suspect did not have anv I'a^ialhair. (Trial. Tr., Vol.

II5 at 479.) The inforrnati®n was then broadcasted over the police radio. (Trial Tr., Vol. II,

at 480.)

DIt:tilIio viewed *d.e store's video surveillance after ttie owner anived. (Trial 'I`r.o

Vol. IIs at 483.) The video showed that Croom wore a pair of gloves vAth a yellow strip

or yellow writing on them. (Trial 'I'r., Vol. 11, at 483.) The coat 4pIsea,red dark green in the

video. (Trial Tr., Vo:I., I:II, at 509.)

DgtLilllo also learned that Croom was seen leaving in "an older model Lincoln,

around 1978, that was almost maroon or pink in color -Aith heavy rear end damage to the

vehac:le," (Trial Tr., Vol. II9 at 484-485.)

Youngstown Officer Dorothy Jolnswan recognized the veb.zcIe's descriptIop. over

the radio. (Trial Vol. III, at 666.) Johnson recognized the veb.icIe's descript:on, faom.

working a side job at Plazaview ^partinera^ complex. (Trial Tr., Vol. III, at 666.) Johnson

had seen the vehicle there. (Trial Tr., Vol. 111, at 666.) Johnson advised dispatch that the

owney resides at Plazaview. (Trial Tr., Vol. III, at 667.)

Xoout aortymfive minutes later, around 8> 1 5 p.m. that evening, Johnsor^ observed

the vehicle traveling ^^^tbound on ^^Guffrey Road on Youngstown's east side. ("Cr€aI

Tr., VoIo III, at 667.) J'oInsor€ stopped the vehicle a.rotm^ the 1300 block of Forest View,

about one mile from Belleria. (Trial Tr., Vol. 111, at 668.)

5

Croom was driving, and. I^^^endan.t-Appellant JefI"Toy Shorter was the frorit seat

passenger. Shorter identified hLmsolI` as S-vmm^^ Shorter. ("L`rial Tr., Vol. III, at 670.)

Croom anti. Shorter were both tak-on into custody. (Trial Tr., Vol. 111Y at 670.)

Youngstown Officer Sharon Burkot-i aet^eved. a pair of black gloves with yellow

writing on them and abla^k knit hat from. C;rooir^^^ ^ehicle, (Trial Tr., Vol. ^II, at 651,

654; State's Exllibi.t :Nos. 6 and 9.)

^.'oungsto,Am State University Officer Donald Cox worked dispatch that evening.

(Trial Tr., Vol. III, at 685.) Vandy Bryant came to the station and told him that Belleria

was being had robbed. (Trial Tr., Vol. III, at 686.) Prior to that, Cox heard Youngstown

broadcast a robbery in progress at Belleria. ('I'^.al "Fx., Vol. 111, at 687.)

The person told Cox that a 1978 Liz^cofta, dark pink or maroon, with rear end

damage, and no pas^^^igea light, was involved in the Belleria robbery. (Trial Tr., Vol. xIl3

at 687.) 'rhe individual observed the vehicle travel southbouiid on Wick -Avonue. (Trial

Tr., Vol. III, at 688.)

Crox broadcasted the infonnatioti over the radio, and inf'ormed. Youngsto^m

directly. (Trial Tr., Vol. III, at 688.)

Robert Levitski testified that while he was incarcerated in the Mahoning County

Justice Center, Croorn solicited him to niurd^^ MyLinda Seamanse Levitski was in. the j 0

ftom August 2011 i.,.^til January 10, 2012, for breaking and entering. (Trial Tr., Vol. III,

at 693-694.)

On December 28, 2011, Levitski spoke to Struthers Detective M:att Haus. (Trial

Tr., Vol. III, at 695.) Levitski told Haus that Croom wanted Mm to kill Seamans, a

iNit^^^s from the Belleria robbery. (Trial Tr., Vol. IIIj at 700.) Croom stated, "no witness,

6

no case.'7 (Trial Tr., Vol. 111, at 700.) C;room gave him a description of winat she looked

like and where she worked. (T'rial. Tr., Vol. :l1ls at 700.) Croom told Levitski to fill a

syringe Arit^ Drano and stick it in her neck. (Trial Tr., Vol. 111, at 701.)

Haus testified at trial and corroborated Levitski's testimony to the extent that he

spoke to him at the Sbmthers Police ^^^partment4 and Levitski told him that Croom

wanted Levitski to kill a witness. (Trial Tr., Vol. IV, at 751-753.) Haus forwarded the

information to Youngstown Police. (Trial Tr., Vol.1V, at 753.)

Christopher Smith, a forensic scientist assigned to the DNA section of Ohio's

Burowa of Criminal Identification and Investigation, analyzed two buccal swabs

(belonging to Croom and Shorter), a hat found in Croom's vehicle, and a pair of gloves

found in Croom's vehicle. (Trial Tr., Vol. IV, at 773-775.)

Sini.th dotennir^ed that the gloves contained a IDNA mixture fto^ Croom, Shorter,

and at least one other individual. (Trial. Tr., Vol. IV, at 778.) Smith stated that Shorter's

DNA was w-ore prevalent (higher degree of DNA profile) than Croom's on the pair of

glovos. (Trial Tre3 Vol. IV, at 780a781,) Smith stated that this fact is consistent Nvith

Shorter wearing these gloves on a ro^^i-ne, more consistent basis. (Trial 'I're, Vol. IV, at

781.)

Smith also determined that the hat had a mixture of DNA profiles. (Trial 1r,, Vol.

IV, at 782.) The DNA profiles were consistent with SI^orLor and at least two additional

individuals. (Trial. Tr., Vol. IV, at 782.) ^mifl4 however, could not make an^r conclusions

regarding C;room, because there was not enough 1nfonxatio^ regarding the DNA profile

generated. (Trial "ITr., Vol. IV, et 7826783.) Smith did conclude that ^ernm^^ Shorter was

not a contributor to the DNIA found on the gloves or the hat. (Trial "Tr., Vol. IV, at 784.)

7

Stanley Croom was convicted of Ag,ravated lZobr^ery, in Aalatl^^ of R.C.

2911.01(A)(1)(C), a felony of the first degree, ^^-`!tls: the accompanying Fl^earm

Sp-eclficatlon, in vloiatla^^ of R.C. 2941.145(A)5 Attempted Aggravated Murder, in

violation of R.C. 2903.02(A) and R.C. 2903.0l(A)(li)s a felony of the lirst degree;

Retaliation, in violation of R.C. 2921.05^^(C)s a felony of the third cl^^^^; and l-1^^^^

Weapons While Under Disability, in violation of R.C. 2923.1. 3(A)^^^^^^, a felony of the

third degree. (Trial '1'r.x Vo1. V, v at 103 2-103 3.)

^^^^ndantaAppellee je1=`1"^ey Sb.oetex was convicted of Aggravated Robbery, 1-n

violation of R.C. 2911.01(A)(1)(C), a felony of the first degree, with the a-ccoMpany1ng

Firearm Specification, in violation of R.C. 2941.145(A); ^.d Having Weapons While

Under Disability, in violation of R.C. 2923.13(A)(2)(B)9 a feloiiy of the third degree.

(Trial Tro} Vol. V. at.1.033-1034.)

Defendant timely appealed. The Seventlg Disffict. C€^tirt of Appeals reversed

Defendant's convictions after it cc-ne1uded that the State failed to present sufficient

evidence to support his convictions for aggravated robbery, ha^^^^ a weapon while under

disability, and the accompanying firearm specification. See ^Wate v. Shorter, 7th Dist. iNo.

12 MA 55, 2014Oh1o 581, 140.

On Febnmry 18, 2014, the SWe filed its Notice of Appeal and, moved this Court

to Stay the Seventh District's decision. Ehi^ Court denied the State's Motion for Stay on

March 12, 2014.

The State now responds -Aitb, the following argument, and requests th1^ ^on€^rabl^

Court to acceptjurisdlction} and allow the S tate to fully and accurately brief its argument.

8

Lay- and AMment

:^^os€tion_ of Iaaw No, Io Because an Appellate Court MustReview the Evidence in a Light Most Favorable to the ProsecutionDuring a Sufficiency Review, an Appellate Court May Not Take intoConsideration Any Inferences that are Inconsistent with the State'sT1^^oiT of the Cases

As for the State of Ohio's first prrspsssitl€^^ of law, the Seventh District

erroneously applied this Court's wellmestAlslis^^^ law con^^ming ali appellate court's

function in reviewing a sufficiency claim, because it took into consideration several

inferences that were inconsistent with the State's theory of the case before it concluded

that the State failed to present sufficient evidence to support Defendant's conviction for

aggravated robbery, having a weapon Wltile under disability, and the accompanying

fi^earrn specl^cataon., See State v. Tesyk, Case No. 2014-0304 (currently pending before

this Court on the State's Memorandum in Support c^^Junsdict^on),

`^'here^'+^reg this Court must accept review of this case, ^^^a:use the Seventh District

erroneously applied this Co,.rt`s wellwestablished law concerning an appellate court's

function in reviewing a sufficiency claini.,

A. ON-LY IF UPON THE CLOSING OF 'T'MaSTATE'S CASEmINmCMEF ALIa lr'ACTS 'I'AKENAS TR.TJ^DID TIIE STATE LACK EVIRE NCEJ€^SUP,PORT AN ELEMENTOFTHEINDICTMENLMAY AREVIEWiNG cox7wr RE'#^^^^E A SUFFICIENC"^ CLAIMK

Sufficiency is a legal standard that is applied to det.^^ine whet1ier the evid^^^^e

admitted at trial is legally sufficient to support the verdict &s a matter of law. See

Thonip.^in,r5 supra. The relevant inquiry is 'whether there existed adequate evidence to

srabmlt the case to the ^ury. State v. Lewis, 70' Dist. No, 03 NIA 36, 2005 ®liio 2699.

According to the Supreme Court of Ohio,

9

.^^n appellate court's ^etion, when revie-^^g the sufficiency ofthe evidence to support a criminal ^onviction. is to ^^^ine theevidence admitted at, Ixi&T to deteFmx^e whether such evidence, ifbelieved, w^^'id convince tqe average ^in^.ofthe defendaunt's guiltbeyond a ^ea^onabee doidbt. The relevant inquiry is whether, afterviw^.^hng, &.a evidence in a l:.g..^t rnos¢ favorable to the prosecution,any ^^^^^naltrier of fact could have faurid the essential elements of^e crime pr€^ven^^$c^^.^. a ^^^^oriable doubt.

Jenks, at paragraph two of the syllabus; accord Ilunter9 131 Ohio St.3d at 84; Robinson,

124 Ohio St.3d at 82. CTiven that, "sufficiency is a, test of adequacy. 'Whether the evidence

is legally sufficient to sustain a verdict is a question of law." State v, Thompkins, 78 Ohio

St.3d 380, 386 (1997), citing Stale v. Robinson (1955), 162 Ohio St. 486, 55 0.0. '388,

124 N.E.2d 148.

The ^even^^r. District fart..^.^^ ^^^^^^^d that "[i]t is welln^^tablished that the

appellate ^ourt is to consider all of the testimony before the jury, whether or not it was

properly admitted." (Emphasis sic.) State v. Peeples, 7h Dist. No. 07 MA 212, 2009 Ohio

1198, 1117, citing State v. Yarbro^gh., 95 Ohio St.3d 227, TI 80 (2002), citing Lockhart v.

Nelson, 488 U.S. 33, 40m42 (1988)5 and citing State v. Goff 82 Ohio St.3d 123, 138

(1998).

Ia WHEN TAKING THE FACTS:iKI^ ^L REA^^NABLE I^FERENCESIN A LIGIC'I' MOST I'^^ORABIIE `I'O 'I`HEqPROSECUTIt3Nx 'I"HE ST-A'TE PRESENTEIISLTFFICIEN°I.' EVIDENCE TO ESTABI,I^^^EFENDANT AIDED A^D ABETTED HIS CQwDEFENDANT IN:ROBBING BEI,LEIICA PIZZAo

On appeal, Defendant contended that the State failed to present sufficient

evidence to s-ap^ort his ^onNi^^^on^ for Aggravated Robbery, with t1hu Frx^^

Specification, and ^ faving Weapogis While Under Disability. ^^^^ificaIly, Defendant

10

argued that there was insufficient evidence ^.^at he aided and abetted Stanley Cr€^om, in

robbing Be:Ileria Pizza ib-i Yatmgstown.

Altb.ough it is well settled that the Seventh Dis4rict's function is to view the

evidence in a light most favorable to the prosecution in revi^Aing Defendant's

sufficiency cla1ms the Seventh District erroneously took into consideration s^^eral

inferences that were inconsistent ^it'i the State's theory of the case; thus, it did not view

the facts in a light most favorable to the State. S^^ ^^nks, at paragrapb. two of the

syllabus; accord Hunter, 131 Ohio Sto3d at 84, .Robin:^on5 124 Ohio St.3d at 82.

aQ^ ^^ Find a DefendantWas c2malicit a Jury MustFi^^ that a ^efendznt :H Iad the SameCulgabilit as the Princi2ai 0'^^^^ MaBe^^^^rred Tha^2K&h. .HlsP^^^en^^^ ^^m,lo_anionshl^ ^^^ ^o

"udud

Before or After the Offense is Comm,ittede

xI"1~]t^ prove that apersou. aided or abetted another iu. committing a crime, ^the

evidence r-qust show that the dei`endant supported, assisted, encouraged, cooperated with,

a^.visedy or incited the principal iu. the ccuamissi€^^^ of the crime."' State v. Moore, 7ffi

Dist. No. 02 CA 152, 2004 Ohio 2320,,I( 28, citing State v. Johnson, 93 Ohio St3d 240,

syllabus (2001).

Thus, "the mere presence of an aceu.sed at the scene of a crime is not sufYicieu.t to

prove, in and of itself, that the accused was an aider and abettor." Moore, supra at T-11, 28,

quoting State R Widner, 69 Ohio St.2d 267, 269 (1982). "Rather, the evidence must

demonstrate that the defendant expressed coaicurrezi^^ ^,Ai th the unlawful act or

intentionally did s®^ediing to contribute to an unlawf-€il act." Moore, supra at ^ 2 8, citing

State v. Stepp, 117 Ohio App.3d 561, 568 (4" :Dist. 1997).

11

"I'hiso however, does not require the -tate to prove that the defendant and his

accomplice had a specific plan to ^on-imit a crime. ^5ee iI^^ore, supra at ^ 30, citing

Johnson, 93 Ohio st.o3d at 245. "The fact that -Ehe defendant shares the criminal intent of

the principal may be inf^^^d from the circumstances surrounding the crime, which may

include the defendant's presence, com-oanionship, and conduct before and after the

offense is committed.5"Moore, supra at 30, citing Johnson, 93 Ohio St3d at 245-246.

Thus, the defendant is responsible for his accomplice's actions:

Where two or niore persons enter upon a common criminalenterprise, whe, each does in the execaation. of the common purposeis the act c^L' all, and, if another crime is ^ormnitted by one of ^emin attempting to accc^^^^^sh the ^owanon criminal purpose, mi.^ oneof them thus aiding and abetting is equ,&Ilv guilty of the crime witiithe one who did the act, if such aider ani abettor intended that thecrime should be cc^nimit:ed if necessary to accomplish the commoncriminal purpose.

29A Ohio Jurisprudence 3d, Criminal Law, Section 145 (2013).

Here, ^^^ evidence presented at trial establxshed. that around 7:20 p.mo on

December 27, 2009, Croom came into the Belleria Pizza in Ycaup-gstown. (Trial Tr., Vol.

III9 at 535.) Croom grabbed an ^inpIoy°^ by her arm -nd told IZer to give hirn the money

and nobocly wiIl. get hurt. (Trial Tr., Vol. III, at 535.) Croom had a black revolver witb. a

brown handgrip in his other hand. (Trial # r., Vol. IIIs at 536, 538.) Croom fled Belleria

after she was unable to open the cash register. ('I'^.al Tr., Vol. III} at 53 9.)

Two days later on December 29, 2009, Seamans identified C^^orn in a photo

array as the person who ^anie zRito Belleria that night aiid held a gun to her. (Trial Tr.,

Vol. IIIs at 547-5484 550; State's Exb.ibat No. 2.) At trial, Seamans identafied. Crocani in

the. courtroom. (TnaI 'I'r., VoI. III, at 556-557.) Seamans ^^^ identified State's Exhibit

.No. 6 as the gloves that Croom wore that evening. CI'^ial Tr., Vol. IIIS at 559.)

12

Youngstown Officer Brad Ditullio responded to the robbery. (Trial Tr., Vol. 11, at

475-476.) Ditullio learned tha-t Croom was seen leaving in "an older model Li^colii,

around 1.978g that was almost maroon or pink in color witb. h^^^^ rear end damage to the

vehicle." (Trial '1"r., Vol. iI} at 4$4-485.):Ditullio broadcasted the i^^n-nation.

Youngstown Offi^er Dorothy Johnson recognized the vehicle's description over

the radio from working a side job at Plazaview Apartment complex. Johnson advised

dispatch that the €^wiier resides at Plazaview. (Trial Tr., Vol. iii, at 666m667.)

About 45 minutes later, Johnson observed the vehicle traveling eastbound on

McGu."^^ey Road on Youngstown's east side, and stopped the vehicle; about ^iie mile

from Belle-ria. (Trial 'i'r., Vol. III, at 667a668.)

Croom was driving, and I3efexdantaAppeilee Jeffrey Shorter was the front seat

pa.^^enger, Shorter lied to police, and ideiita^ed himself as Semmie Shortex. (Trial Tr.,

Vol, 111, at 670.) Croom and Shorter were both arretsed. (Trial Vol. 111, at 6718)

Youngstown State University Officer Donald Cox worked dispatch that evening.

(Trial Tr., Vol. III, at 685.) Prior to that, Cox heard Youngstown broadcast a robbery in

progress at Belleria. (Trial Tr., Vol. III, at 687.)

Vandy Brywi.t came to the station and told him that Bell.eria was being had

zobised. (Trial. Tr., Vol. 11.1, at 686.) Bryant gave Cox a description of the individuals in

the vehicle that left Belleria. Bryant stated that the robber had on a black coat with fur on

the edges, while the driver had on a black hat. (Trial Tr., Vol.1:1:T, at 687-688.)

Bryant also told Cox that they were driving a 1978 Lincoln, dar^. pi,^. or maroon,

with rear end dainages and no passenger light. ("1'rial 7' r., Vol. iIi, at 687.) The vehicle

traveled southboimd on Wick Avenue. (Trial Tr.Y Vol. :Cii, at 688.)

13

Christopher Smith, a for^^si-c scientist a ssigned to ttte DNA section of Ohio's

Bureau of Crx^ina,l Identification and Investigation, analyzed two buccal swabs

(belonging to Croom and Shorter), a hat found in Croom's vehicle, and a pair of gloves

found in Croom's vehicle. (17ria1 Tr., Volo IV, at 773-775.)

Smith dete*iiiig^ed that the gloves contained a D.^IA m axture lsom. Croom, Shorter,

and at least one other ind.ivlduaL (Trial 'Fr., Vo1. AT, at 778.) Smith stated that Shorter's

D1^TA was more prevalent (higher degree of :DNA lsrofile^ than Croom's on the pair of

gloves. (Trial Tr., Vol. IV, at 780-7810) Smith stated that this fact is consistent with

Shorter wearing these gloves on a r€^utine basis. (Taial'1'r.3 Vo1.1V, at 781.)

Smith also detemiigsed that the hat had a mixture of DNA profiles. (Trlal. 'z're, Vol.

IV, at 782.) The DNA proffies were consistent with. Shorter aiid ^. t least t^o additional

individuals. (Trial Tr., Vo1e IV, at 782.) Smith, however, could not make any conclusions

r^gardi-ng Crooin. (Trial Tr., Vo1.1V, at 782m783.)

H:Cre, the State presented sufficient evidence that Shorter aided and. abetted

Croom beforu and at-ter he attempted to rob the Belleria that evening. Sliwrter waited for

Croom outside the Belleria. Shorter drove Croom to and ftom Belleria that evening.

Croom further borrowed Shorter's items to effectuate the robbery-pair of gloves.

Again, Shorter is responsible for Croom^s actions, which includes his possesston

arid use of the firearm that evening inside Belleria. See State v. ^^lbert, 7ffi Dist. No. 08

MA 206, 2012 Ohio 1165, 160.

'1^^us, the State prescnted sufficient evidence to support Appellant's cor£vlctior^^s

for Aggravated Robbery, with the accompanying Firearm Specification, and Having

Weapons Vihile Under ^^sability,

14

Therefore, the Seventh District erroneously applied this Court's weil-establlshed

law concorring an appellate ^owt9s fLinction. in reviewing a sufficiency claim, because it

took into ^onslderatioin. several in-fer^^^^s that were l^consistent with the State's theory of

the case before it concluded that the State failed to present su^'^ czent evidence to support

^efendmitgs cs^^ivfctions.

Appellant-State of Ohio' first proposition of law is merit.or^ous and m^.st be

accepted for this Honorable Court's review.

Conclus; ^^

Because the Seventh District erroneously applied this Honorable Court's well-

estalSlished law c€snceming an appellate court's -unct^^n in reviewing a sufficiency claim

w:hen it took into consideration several inferences that were inconsistent with the State's

fih^oq of the case, this Court must accept review of thi-s case.

Therefore, for the reasons discussed above, this case involves matters of public

and great general interest and substantial ^onstitsitlonal questions, and the State of Ohio-

Appel1ant requests that this Honorable Court accept jurisdiction in this case.

OITice of the Mahoning County Prosecutor21 W. Boardman St., 6`h la'l.Youngstown, OH 44503-1426PH: (330) 740-2330FX: (330) 740-2008

Counsel for State of Ohio-Appellant

15

Respectfully Subgnitted,

l

STATE OF OH;O

MAHONING COUNTY

STATE OF OHIO,

PLAINTI FF-APF^ELLEE,

V.

JEFFREY SHORTER,

)

)sso

DEFENDANTaAPPELLANT.

. . . . .> > > . > > . . .. .. : . . . . . . . . . . : -: . . . . . " _ _ . : . _ _ . _9 '-:: .... . .......,

... _ .... _.. ..._r."....._"._ "-l

fri .r (ry ,,,^J ^^f

. r._^/

.,.. ^_.r..^. , ^ «...,j ,.. _._.

IN THE COURT OF APPEALS OF OHIO

SEVENTH DISTRICT

CASE NO. 12 MA 55

JUDGMENT ENTRY

For the reasons stated in the opinion rendered herein, appellant's first

assignment of error has merit and is sustained. Appe{Iant®s remaining four assignments

oferroraremoofi. It is the final judgment and order of this Court that the judgment of the

Common Pleas Court, Mahoning County, Ohio is reversed and the charges dismissed.

DeGenaro, P.J. concurs with ^ftached concurring opinion.

Costs to be taxed against appellee.

^z

JE^DG-Es.

2012 69iAIlllllllllllllllllllllllllll^ll^llllllllll^llllllllllllll^ ^®^^^^^^^ ^^ ^ CJ 3 2 0,

.,,^..4,^....^.

!'Q`}^STATE OF OE--IIO, MAHONING COUNTt`

rEB 13 2014,IN TI"IE CO1.^RT OF APPEALS

SEVENTH D1STR1CT

STATE OF OHlO,

PL.A.I NTI FF--AP E^ ELLEE,

V.

JEFFREY SHORTER,

DEFENDANT°,^^^ELI..A.NT

CHARACTER OF PROCEEDlNGS:

JUDGMENT:

APPEARANCES:For PEaintlffmAppellee

For Defend a nt-Ap pell^^^

CASE NO. 12 MA 55

OPINION

Crimlnal Appea1 from Court of CommonPI^^^ of Mahanlr^^ County, OhioCase No. 10CR35A

ReversedCharges Dismissed

PauI GainsProsecutorRaIph M. RiveraAssistant Prosecutor21 W. Boardman St., ^^h FIoorYoungstown, Ohio 44503

Aftorr^^y Jan R. Mostov4822 Market St., Suite 250Boardman, Ohio 44512

JUDGES:

Hon. Gene DonofrioHon. Joseph J. VukovichHon. Mary DeGenaro

Dated: February 13, 2014

IIIIIII111111111111111^I11 1111111111111111111 ^^^ ^^^^^

- 1 o

Dt^NOFRlO, J.

(Iffl) Defend ant-appel lant, Jeffrey Shorter, appeals from a Mahoning County

Common Pleas Court judgment convicting him of aggravated robbery, with an

accompanying firearm specification, and having a weapon whlle under dlsabll€tye

(12) On December 27, 2009, MyLinda ^ear^^^s was working at Belleria

Pizza on Wick Avenue in Youngstown. At approximately 7:20 p.m. a man entered

the store yielding a gun. The man grabbed Seamans" hand and demanded money

from the cash register. Seamans pushed the "panic buitonF' to call the police and

tried unsuccessfully to open the cash register. When she was unable to open the

cash register, the man fled the store.

^^^^ Seamans described the robber as a black male, approximately 50 years

old, sIx-feet tall, and 200 pounds. She told pollce the man had a dark, possibly black

coat, with brown fur around the hood and that he had the hood up. She also relayed

that the robber was wearing black gloves with yellow writing on them.

(^^) That night, Youngstown State University Pollce Officer Donald Cox was

working dispatch at the YSU Police Department. The YSU Poli^e Department is not

far from Belleria. A man named Vandy Bryant came into the police department at

approximately 7:30 p.m. and told Officer Cox that Belleria was being robbed. Bryant

described the vehicle used at the robbery as a darkwpink or maroon 1978 Lincoln with

rear-end damage and no passenger side llghts. He also relayed to Officer Cox that

the robber was a darkmsklnned, black male wearing a thick, black coat with fur around

the edges. Bryant also described the driver of the Lincoln as a black male wearing a

black hat. Officer Cox put this descrlptlon out over the police radio.

(15) Youngstown Police Officer Dorothy Johnson heard the description of

the vehicle and recognized it as belonging to a tenant at the Plazaview Apartments.

So she went to the aparti-nents to look for the vehicle. 'When she did not find it there,

she patrolled the area nearby. At approximately 8:15 or 8:20 p.m., Officer Johnson

saw the vehicle on McGuffey Road. She stopped the vehicle. Stanley Croom was

dr7vlng the vehicle when Officer Johnson stopped it. The car was registered to

.2-

Croom. Appellant was in the passenger seat. Appellant inltlally identified himselt as

"SemmI^ Shorter." Appellant and Croom were placed under arrest. A black hat and

a pair of black gIov^s with yellow writing were recovered from the car.

(16) Two days later, Seamans identified Croom in a photo lineup as the man

who robbed Belleria. Testing revealed that appellant's, CroomAs, and another

indlvldual3s DNA was present on the gloves with the yellow writing and appellant's

and at least two other individuals' DNA was present on the black hat.

(17) On January 28, 2010, a Mahoning County Grand Jury indicted

appellant and Croom in a joint indictment on one count of aggravated robbery, a firstµ

degree felony in vIo6tlon of R.C. 2911.01(A)(1)(C)y with a firearm specltication. It

also charged Croom with one count of having weapons while under disability, a thlyd-

degree felony in violation of R.C. 2923.1 3(A)(2)(B). On March 11, 2010, a grand jury

issued a superseding indictment that also charged appellant with one count of having

weapons while under disability.

{18} On February 8, 2011, appellant filed a motion to sever his trial from

Croomrs trial due to the separate evidence against each defendant. On September

29, 2011, appellant filed a renewed motion for severance, asserting that since Croom

had now elected to represent himself at trial there was even more danger of prejudice

to appellant. The trial court overruled appellant's motions without explanation.

{IU9) On January 19, 2012, a grand jury handed down another superseding

indictment. It added additional charges against Croom for attempted aggravated

murder with a repeat violent offender specification and retaliation. These charges

stemmed from allegations that Croom attempted to hire a fellow inmate at the

Mahoning County Jail to kill Seamans so that she would not be able to testify against

him at trlal.

(1110) The fi.rial_...caurt severed the having weapons while under disability

charges from the remainder of the charges. These charges were tried to the court

while the remaining charges were tried simultaneously to a jury. Appellant was

represented by counsel but Groom represented hImseIt, The court found appellant

.3.

and Croom guIlty of having weapons whlle under disability. The jury found appe?Iant

and Croom guIlty of aII remaining charges and specifications.

(111) The trial court subsequently held a sentencing hearing where it

sentenced appellant to ten years in prison for aggravated robbery, three years for the

firearm specification, and three years for having a weapon while under a dIsabIlity.

The court ordered appeIlant's sentences to be served consecutively for a total of 16

years :n prison.

(112} AppeIlant filed a timely notice of appeal on March 14, 2012.

(113) Appellant raises five assignments of error, the first of which states:

THE TRIAL.. COURT ERRED, DEPRlVING MR. SHORTER OF

HIS RIGI-iT TO DUE PROCESS OF LAW UNDER THE FIF i IA

AMENDMENT TO THE UNlTE(^ STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONS°I`ITUTION, WHEN IT

DENIED MR. SHC'.^RTER`S CRIM.R. 29 MOTION FOR JUDGMENT OF

ACQUITTAL NO`IWI"I"HSTANDIImIG THE VERDICT, WHEN THE

EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SUPPORT

THE CONVICTIONS.

(1f14) In this assignment of error, appellant asserts the evidence was

insufficient to support the juryys verdict and the trial court should have granted his

Crim.R. 29 motion for acquiftal or his motion for judgment notwithstanding the verdict.

(116) Sufficiency of the evidence is the legal standard applied to determine

whether the case may go to the jury or whether the evidence is legally sufficient as a

mafter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 313, 684

N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.

Thompkirts, 78 Ohio St.3d 380, 386, 678WK^^2d 541 (1997). Whether the evidence

is legally sufficient to sustain a verdict is a question of Iawe ld. In reviewing the

record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

d44

essentiai elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio

St.3d at 113.

(116) The jury convicted appellant of aggravated robbery in violation of R.C.

2911,01(A)(1), which provides;

(A) No person, in attempting or oommittirsg a theft offense * * * or

in fleeing immediately after the attompt or offense, sha@i do any of the

following:

(1) Have a deadly weapon on or about the offendor;s person or

under the offendor 9s control and either display the weapon, brandish it,

indicate that the offender possesses it, or use ito

(117} The jury also convicted appellant of an accompanying firearm

specification in violation of R.C. 2941.145(A), finding that appellant had a firearm on

or about his person or under his control while committing the offense and displayed

the firearm, brandished the firearm, indicated that he possessed the firearm, or used

it to facilitate the offense.

(118) And the trial court convicted appeliant of having weapons while under

disability in violation of R.C. 2923.13(A)(2)(B), which provides:

(A) Unless relieved from disability as provided in section 2923.14

of the Revised Code, no person shall knowingly acquire, have, carry, or

use any firearm or dangerous ordnance, if any of the following apply:

(2) The person is under indictment for or has been convicted of

any felony offense of violence or has been adjudicated a delinquent

child for .the commission of an offense that, if committed by an aduit,

would have been a felony offense of violence,

(119) Because there was no evidence to suggest that appe[iar€t himself went

into Belleria, brandished a gun, and demanded money, it is reasonable to presume

" 5a

the jury found appellant guilty of complicity by aiding and abetting Croom in the

above acts.

(120) A charge of complicity may be stated in terms of the complicity statute

or in terms of the principal offense. R.C. 2923,03(F). In order to support a conviction

for complicity by aiding and abett€ngy the evidence must show that the defendant

U supparted, 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 pdncipal.' State v. Johnson, 93 Ohio SUM 240, 245, 2001aOhiaµ1336f 754

N.E.2d 796, The defendant°s intent may be inferred from the circumstances

surrounding the crime. ld. Thedefendant°s x:C[p]artic€pation in criminal intent may be

inferred from presence, companionship and conduct before and after the offense is

committed,,PS 8d.; quoting State v, Pruett, 28 Ohio App.2d 29, 34, 273 N.E,2d 884

(1971).

(121) Appellant makes several arguments under this assignment of error.

First, he argues that statements made by Vandy Bryant should not have been

admitfied into evidence because they were hearsay and there was no evidence that

Bryant was "unavailable" to testify.

{122) On review for sufficiency of the evidence, an appellate court is to

consider all testimony presented at tt°ial, whether or not it was properly admitted.

State v. Peeples, 7th Dist. No. 07 MA 212, 2009MOhio-11988 TT16m17, citing State v.

Yarbrough, 95 Ohio St.3d 227, 2902mOhiom2126, 767 N.E,2d 216. We do not

determine whether evidence was inadmissible and then review the sufficiency of the

admissible evider€ce, ld. at 116. Thus, we consider Officer Cox's testimony as to

what Bryant reported to him because the jury considered this evidence in reaching its

decision.

: .. .. (123) According to fi^fficer Cox, at 7:27 p,m, on the night in q-uestio -np Bryant

came into the YSU Police Station and reported that BeIfer^a was being robbed. (Tr.

686, 689), Bryant described the vehicle used in the robbery as a dark-pink or

maroon 1978 Lincoln with rearWend damage and no passenger lights. (Tr. 687).

m6w

Bryant described the robber as a guraayie(ding, dark-skinned black male wearing a

thick black coat with fur on the edges. (Tr. 688). Bryant told Officer Cox the robber

got into the Linco(r;, which was being driven by "a black male wearing a black hato"

(Tr. 688). This is the only description the jury is ever given of the driver of the

Lincoln.

(Iff^^) The remaining evidence was as follows.

(T^26) Seamans testified that at approximately 7e20 p.m., a man entered

Belleria and approached the counter. (Tr. 535). The man, while pointing a gun at

Seamans with one hand, grabbed her arm with the other hand and demanded

money. (Tr. 535-536, 539). He told Seamans that if she gave him the money, no

one would get hurt. (Tr. 535). Seamans was unable to open the reqister. (Tr. 537).

The robber became upset and left. (Tr. 539). Seamans described the man as

wearing a black jacket with fur around the hood and black gloves with yellow writing

on them. (Tr. 538). She thought the robber was approximately 5°8'Y and 200 pounds.

(Tr. 542). Two days after the robbery, Seamans was shown two photo arrays and

picked Croom's photograph out of the second array as the man who robbed her. (Tr.

546-548). Seamans also identified Croom at trial. (Tr. 557).

(IU261 Seamans described the robber's gun as a black revolver with brown

handgrips. (Tr. 538). She was able to differentiate between a revolver and a semi-

automatic weapon due to her experience with weapons during her time in the military.

(Tr. 538-539). She stated that during her encounter with the robber he had the gun

pointed at her. (Tr. 539).

(127) Jacquelyn Richards, another Belleria employee, testified that on the

night in question she was in the back of the restaurant making pizza when she heard

someone yelling. ^""r. 516). She went to see what was happening and saw a biack

man with a black gun-YeIlir^g at Seamans. (Tr. 517), Richards crawled back to thekitchen and another employee called 911. (Tr. 518).

{^^^) Officer Brad Ditullio responded to a call at Belleria at 7:27 p.m. ffr.

476). He interviewed Seamans, who gave him a description of the robber. (Tr. 479)e

7-

He also watched a video from Belleria's surveillance cameras and noticed the yeilow

writing on the robbers gloves. (Tr. 483).

(129) Upon hearing the descdption of the getaway -war on the police radio,

Officer Johnson recognized the car from her side job working security at the

Plazaview Apartments. (Tr. 665^666). She stated that the Lincoin was a '°real weird-

looking cofor;' and had heavy rear-end damage. (Tr. 666). Officer Johnson began

looking for the car near the apartments. (Tr. 667). She spotted it nearby onMcGuffey Road at 8:15 or 8:20 pom. (Tr. 667). She stopped the car. (Tr. 668),

Croom was driving the car and appellant was the passer^^er. (Tr. 670, 673-674).

(1[30;^ Officer Sharon Burton processed Croom's car after the arrest. Officer

Burton testified that she found a pair of gloves with yellow writang on them (Ex. 6) and

a black hat (Ex. 9) in the front conso(e, (°.fr. 651). Seamans identified the gloves as

those worn by the robber. (Tr. 559).

(131) Christopher Smith is a forensic biologist who perfor^^^ DNA testing at

the Bureau of Criminal Identification and Investigation. He compared DNA from the

gloves and hat found in Croom's car with DNA samples from appellant and Croom.

(1132) As to the gloves, Smith concluded that they contained DNA consistent

with appellant, Croomt and at least one other individual. (Tr. 778). He stated that

appellant could nof be excluded as a major contributor of the DNA in the gloves. (Tr.779). And he stated that Croom could not be excluded as a minor contributor of the

DNA in the gloves. (Tr. 781). Smith agreed this could be consistent with appellant

wearing the gloves routinely and Cr^^m wearing them less otteno (Tr. 781),

(^^^) As to the hat, Smith concluded it contained DNA consistent with

appellant and at least two other individualse (Tr. 782). Smith stated he was unable to

draw a conclusion regarding Croom's DNA in the hat. (Tr. 782-783). There was not

en-ough.inforrr€ation._in the DNA profile to determirre.jt".Groom'sDNA was present. (T-r. -

783).

(fi^^^) This was the extent of the evidence as it pertained to appellant. There

was no evidence that appellant personally robbed BeIleria or ever had actual

r8M

possessiors of the gun. Thus, the jury found him ^^ifty of complicity by aiding and

abetfi€ng Croom in robbery and possession of a firearm. The question then facing this

court is whether the above evidence was sufficient to prove that appellant aided and

ahett^^ Croom.

(135) The evidence against appellant can be summed up as foliows. Croom

was identified as robbing Belleria at 7:27 p.me When Croom fled Belieria, a black

male wearing a black hat was driving CroorrR`s vehicle. Appellant was found with

Croom, as a passenger in Cror^am's vehicle, between 8e15 and 8:20 p.m. Inside

Croom's vehicle was a pair of gloves that he likely wore during the robbery and a

black hate Both the hat and the gloves contained appellant's DNA along with DNA

hefonging to at weasttwo other individuals.

(136) From this evidence it would be highly speculative to presume that

appellant was the driver of Croom's car when Croom robbed Belleria. The only

descripfiiop of the getaway driver was that he was a black male wearing a black hat.

This description is not very helpt'ul.. Furthermore, police did not stop Croom`s vehicle

until at least 48 minutes after the robbery. And appellant was not driving the car at

the time. Instead, Croom was driving. There is no explanation as to what occurred

during the 48 minutes after the Belleria robbery and before Croom and appellant

were apprehended by police.

(137) In order for the jury to convict appellant of complicity to aggravated

robbery, the evidence had to show that appellant "supported, assisted, encouraged,

cooperated with, advised, or incited" Croom in the commission of the robbery, and

that appellant shared Croom`s criminal intento Johnson, 93 Ohio St.3d at 245. And

while part€cipation in the principal offender's criminal intent can be inferred from

presence and companionship before and after the robbery, there is no evidence that

apP^^lanl -was the driver of Croom's car wheri.. Croom fled from Belleria. _The_.onay

description of the driver was that he was a black male wearing a black hat. There

was no description of the height, weight, age, or other clothing of the drivero And

while appellant was with Croom when he was apprehended, this did not occur until at

n9w

Ieast 48 minutes after the robbery. This is a substantial lapse in time when it is^ one

of the only facts to potentially link appellant to the robbery. Moreover, appellant was

not driving the car when it was stopped by police. Croom was driving. Thus, Croom

clearly had the time and the opportunity to switch drivers after the robbery.

(1138) Appellant further argues the DNA evidence relied on by the state did

not link him to the crimes. He urges that even if the state proved that the gloves

found in Croomrs car belonged to him, this did not link him to the robbery beyond a

reasonable doubt.

(T139) Smith testified that DNA found in the gloves and the hat was consistent

with appellant's DNA. However, the gloves also contained DNA consistent with

Croom and at least one other person and the hat contained the DNA of at least two

other people. Thus, the DNA evidence did not actually link appellant to the rohbery.

(1140) Based on the above, we must conclude that the evidence was not

sufficient to support appellant's convictions for aggravated robbery with a firearm

sp^cification and having a weapon while under disability.

(141) Accordingly, appellant's first assignment of error has merit.

{1f421 Appellant's remaining assignments of error state:

MR. SHORTER'S DUE PROCESS RIGHTS UNDER THE

STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED BY

PROSECUTORIAL MISCONDUCT WHEN THE STATE'S ATTORNEY

COMMENTED ON MR. SHOR`I`ER'S' FAILURE TO PRESENT

EVIDENCE AND/OR TESTIFY AT TRIAL, THEREBY SHIFTING THE

BURDEN OF PROOF TO MR. SHORTER AND VIOLATING HIS FIFTH

AMENDMENT RIGHTS.

. .i MR. SHORTER'S DUE--PR-OGEsS RIGHTS UNC^ER THE

STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED BY

PROSECUTORIAL MISCONDUCT WHEN THE STATE'S ATTORNEY

URGED THE JURY TO RELY UPON THE PREJUDICIA1.. EVIDENCE

m1p..

THA^ WAS NOT PROPERLY IN THE RECORD.

MR. Sh-IORa ER WAS DENIED DUE PROCESS OF LAW AND A

FAIR "IrRIAL WHEN THE TRIAL COURT DENIED HIS MOTIONS TO

SEVER HIS TRIAL FROM THE TRIAL OF HIS CO-DEI""ENDANT.

MR. SHORTER WAS DENIED A FAIR TRIAL BY REASON OF

CUMULATIVE ERRORS COMMITTED DURING THE COURSE OF

THE TRIAL.

(^^^) Because ^^ have concluded that 'Lhe evidence was insufficient to

support appeIIant's convictions, these remaining assignments of error are moot.

(144) Based on the merit of the firslt- ass ignment of error, appellantss

convictions are hereby reversed and the charges dismissed.

Vukovich, J., concurs.

DeGenaro, P.J., co^^^^s with attached concurring opa.nion0

APPROVED:

..^--

Gene Donofrfio, Judge

... _ I .I_

I

DeGenaro, P.J. S concuo ring.

Ijoin the majority's holding that there was insufficient evidence to sustain

Appellant's conviction pursuant to the complicity statute for aiding and abetting Croom.

i write separately to discuss Appellant's assignment of error regarding joinderp it was

plain error for the trial court to deny Appellant's motion to sever his trial from Croom's.

Although the reversal for insufficiency technically renders the joinder assignment of

error moot, the issue is significant enough to merit discussion. This appeal affords the

opportunity to review a trial court°s failure to sever trials where the conviction of the

defendant seeking severance rests upon the complicity statute, a situation that

becomes especially prejudicial where, as here, the evidence connecting the alleged

accomplice to the principal comdefendant is markedly insufficient.

Appellant initially moved to sever due to the separate evidence against each

defendant; but when Croom decided to represent himself at trial, Appellant asserted

this would increase the prejudice to him and he renewed his motion. The trial court

overruled both motions without explanation. However, Appellant failed to renew the

motion after the grand jury issued the superseding indictment charging Croorr, with

attempted aggravated murder and retaliation. Thus, we must review for plain error.

To prevail on appeal, Appellant must demonstrate that but for the alleged error the

outcome of the trial would have been clearly different. State v. Waddelfs 75 Ohio St.3d

163, 166, 661 N. E.2tt 1043 (1996).

Generally, the law favors joinder of co-defendants to conserve judicial and

prosecutorial time, lessen the expense of mulfi€ple trials, reduce the inconvenience to

witnesses and minimize the possibility of incongruous results in separate trials before

different juries. State v. Thomas, 61 Ohio St.2d 223,225, 400 N.E.2d 401 (1980).

However, where the defendant establishes that joinder would be prejudicial, Crim.R.

14 provides that the t(ial court shall sever co-defer^dants° trials. On appeal, the

defendant must demonstrate that the trial court abused its discretio€i iri denying

severance. State v. Brinkley, 105 Ohio St..3d 231, 2005 -Oh^^-1507, 824 hl. E.2d 959,

$29. "The test is 'whether a joint trial is so rrianffestly prejudicial that the trial judge is

required to exercise his or her discretion in only one ^ay-hy severing the trial. * * ¢A

defendant must show clear, manifest and undue prejudice and violation of a

substantive right resulting from failure to sever. * * * . ", State v. Bundy, 7th Dist. No. 02

2

CA 211; 2005mOhio-3310, 154. quoting State v. Schiebel 55 Ohio St.^d 71, 89, 564

N.Eo2d 54 (1990), quoting United States v. Castro, 887 F.2d 988, 996 (9th Car,1989).

Appellant has made that showing here. As argued by Appellant in his first

assignment of error, the evidence demonstrating that he was complicit in the

aggravated robbery was scant. Although the State argues that the evidence and

charges against Appellant and Croom were distinct, straightforward and easily

understood, the trlal court"s jury instructions nonetheless could not rectify the prejudice

to Appellant as a result of being tried together with Croom.

The events surrounding the aggravated robherv and related char^^^

necessarily involve Appellant and Croom. Because Appellant did not commit the

same acts as Croom, he could on'ly be convicted by aiding and abetting Croom. Thus,

a separate trial would necessarily require evidence of what Croom did the night of the

robbery in order to sustain a complicity conviction against Appellant, in addition to

evidence showing something more than that AppeIlant was a passenger in the car

being driven by Croom, which had been at the crime scene aimost an hour before.

Conversely, Croom's conduct giving rise to the afk^mpted aggravated murder and

retaliation charges occurred tvvo years after the robbery. Specifically, that he solicited

Levitski to murder the only witness tying Croom to the robbery. That witness's

testimony would in turn support a complicity conviction against Appellant. However,

there was no evidence whatsoever that Appellant was involved with that separate

criminal scheme.

Thus, Appellant was prejudiced by being tried with his cowdefer^dant on the

aggravated robbery and related charges because the jury was presented with

evidence that Croom attempted to eliminate the only witness to darectly link Croom to

the robbery and Appellant by extension via the complicity charge. The prejudice to

Appellant is evident in light of this court's decision to vacate Appellant9s conviction

because the State presented insufficient evidence. Accordingly, Appellant's fourth

assignment of error is -aIso meritorious.

APPROVED:

^1^

UDGE M Y DeIJENA.^.^