State v. Hall , 2013 Ohio 2900 ( 2013 )

[Cite as State v. Hall, 2013-Ohio-2900.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98615
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL HALL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-542140
BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Keough, J.
RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEY FOR APPELLANT
Brett M. Mancino
75 Public Square
Suite 1016
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John R. Kosko
Norman Schroth
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Michael Hall (“Hall”) appeals his aggravated robbery
and kidnapping convictions. We find no merit to the appeal and affirm.
{¶2} On March 14, 2008, John Mahone discovered the body of Eric Copley
(“Copley”) in front of his home located at 1075 East 76th Street in Cleveland. Mahone
did not hear any gunshots or witness any crime, but his dog was barking at Copley’s body,
which was lying in the street at the edge of his property. Cleveland police officer
Charles Teel, who responded to the scene, recovered a bullet fragment in the area where
Copley’s body was found.
{¶3} EMS transported Copley to Huron Road Hospital, where he was pronounced
dead on arrival. The Cuyahoga County medical examiner ruled his death a homicide.
Copley had been shot in the back, and the bullet penetrated through his liver and heart
before exiting out of his chest. According to the medical examiner, Copley would have
been able to stand and walk for up to one minute after being shot.
{¶4} On the night of his death, Copley had been visiting Hall at Hall’s residence
on East 77th Street. Mahone’s house, where Copley’s body was found, was located
between Hall’s house and Copley’s house. Copley was walking home from Hall’s house
when he was shot. The next morning, Copley’s mother, Josephine Copley (“Josephine”),
found some of his belongings near the intersection of East 76th Street and Korman
Avenue. Josephine called the police, who recovered Copley’s right tennis shoe, some
CDs, his phone charger, and shell casings from the scene.
{¶5} There were no eyewitnesses to the shooting. However, Connie Anderson
(“Anderson”), who lives at the corner of East 76th Street and Korman Avenue, told police
that she was studying in her living room around 11:00 p.m. when she heard gunshots.
She immediately turned off the lights, looked out the window, and saw a man wearing a
hoodie looking down at something. She went upstairs to get a better view and saw
another man kneeling on one knee. She watched the man stand up, take a few steps, and
collapse face first in what she described as a “dead man’s fall.” The man in the hoodie
ran toward East 77th Street.
{¶6} Four days after the shooting, on March 18, 2008, Hall and his mother, JoAnn
Hall (“JoAnn”), contacted the police to report that they were being harassed by Copley’s
father, who suspected Hall of the murder. Hall and his mother voluntarily allowed
homicide detectives to interview them about the crimes. They told detectives that Copley
visited their house the night of his death, but Hall left the house hours before Copley went
home and did not return until after Copley’s death. Hall told detectives that he went with
two family friends, Aniya Collins (“Collins”) and Teinisha Paradise (“Paradise”), to buy
juice for his mother and to visit his aunt, Sally Williams (“Aunt Sally”). After visiting
Aunt Sally for over an hour, they left her house to search for someone selling marijuana
on the streets. Collins and Paradise told police that while they were driving around, they
saw Hall’s friend Brandon Beckwith (“Beckwith”) walking down the street. They
picked up Beckwith and dropped him off at his house with Hall. Hall told police he was
still at Beckwith’s house when his mother called and informed him that Copley had been
killed. Hours after Hall’s statement to the police on March 18, 2008, Beckwith turned
himself in to the police.
{¶7} At trial, Josephine Copley testified that she and Copley worked together for a
cleaning service and cleaned the KeyBank Center on East Ninth Street in downtown
Cleveland. They were paid every Thursday, and Josephine always cashed Copley’s
check and gave him the cash. The day before his death, she had given Copley $316,
which he kept in his pocket. Investigators did not recover any cash from his pockets
after his death.
{¶8} No charges were filed against Hall until October 2010. In August 2010,
Robert Dillard (“Dillard”) contacted the police and informed them that he had
information concerning Copley’s murder. Dillard, who lived upstairs from Aunt Sally’s
apartment and dated Hall’s cousin, provided a recorded statement to the police in which
he described Hall’s conspiracy with Beckwith to rob Copley of his cash and split the
money. According to this August 2010 statement, Hall told Beckwith that Copley had a
lot of money in his pocket and suggested that Beckwith follow him around, corner him,
and rob him. As planned, Beckwith followed Copley out of Hall’s house and robbed
him. Hall explained to Dillard that “he was supposed to have taken the money but, don’t
know if he got the money or not, but he shot that boy.” Hall also told Dillard that he was
riding in Collins’s car when they saw Beckwith walking down the street and picked him
up. At Beckwith’s house, Beckwith told Hall that he shot Copley.
{¶9} In December 2010, Dillard signed an affidavit at Hall’s attorney’s office
recanting his August 2010 statement. At trial, he testified that every detail contained in
his August 2010 statement “was a lie,” including the facts that (1) Beckwith was alone at
the time of the robbery, (2) Copley had a lot of money in his pocket because he had a job,
and (3) Hall was driving around with Collins when they picked up Beckwith and went to
Beckwith’s house where Beckwith informed Hall of the shooting. At the time Dillard
gave his August 2010 statement, he was in jail for domestic violence against Hall’s
cousin, Tiffany Williams (“Williams”). He testified that he fabricated the entire story
contained in his August 2010 statement because he wanted to hurt Williams and her
family.
{¶10} After the police received Dillard’s August 2010 statement, Hall was charged
with two counts of aggravated murder, two counts of aggravated robbery, and two counts
of kidnapping. All counts included one- and three-year firearm specifications. He was
charged along with codefendants Brandon Beckwith and Sharvaise Robinson
(“Robinson”) for the shooting death of Eric Copley. According to Dillard’s statement,
Robinson helped set up the robbery by inviting Copley over to Hall’s house the night of
his death.
{¶11} The case proceeded to a jury trial in April 2011, and the jury found Hall not
guilty of the two counts of aggravated murder, one count of aggravated robbery, and one
count of kidnapping. The jury was hung on the remaining counts of aggravated robbery
and kidnapping. Following a second trial, the jury found Hall guilty of aggravated
robbery and kidnapping, with three-year firearm specifications. The court merged the
two convictions and sentenced Hall to seven years for aggravated robbery and three years
for the firearm specifications, to be served consecutively, for an aggregate ten-year prison
sentence. Hall now appeals and raises seven assignments of error.
Double Jeopardy
{¶12} In his first assignment of error, Hall argues double jeopardy barred the state
from prosecuting him for aggravated robbery and kidnapping in the second trial because
he was previously acquitted of aggravated murder and separate counts of aggravated
robbery and kidnapping.
{¶13} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution states: “No person shall * * * be subject for the same offense to be twice put
in jeopardy of life or limb * * *.” The Fifth Amendment was made applicable to the
states through the Fourteenth Amendment. Section 10, Article I, of the Ohio
Constitution states: “No person shall be twice put in jeopardy for the same offense.” The
Double Jeopardy Clause protects persons from (1) “a second prosecution for the same
offense after acquittal,” (2) “a second prosecution for the same offense after conviction,”
and (3) “multiple punishments for the same offense.” North Carolina v. Pearce, 395
U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).
{¶14} Hall argues that double jeopardy barred the second trial, even though the
jury was hung on the remaining two counts of aggravated robbery and kidnapping. He
contends that State v. Liberatore, 4 Ohio St. 3d 13, 445 N.E.2d 1116 (1983), supports his
double jeopardy argument.
{¶15} In Liberatore, the victim was killed in his car by a bomb, which was placed
in an adjacent car and detonated by remote control. Liberatore was charged with
aggravated murder “as purposely causing the death of another, * * * during the
commission of aggravated arson.” In other words, the defendant was charged with
aggravated arson and aggravated murder with aggravated arson as the predicate felony.
The jury acquitted Liberatore of aggravated arson and hung on the aggravated murder
charge. The Ohio Supreme Court found that because aggravated arson was the predicate
crime for the aggravated murder charge, a judgment of acquittal on aggravated arson
foreclosed retrial of the defendant on aggravated murder. Id. at 15.
{¶16} In State v. Lovejoy, 79 Ohio St. 3d 440, 1997-Ohio-371, 683 N.E.2d 1112,
the Ohio Supreme Court distinguished Liberatore and held that when a jury finds a
defendant not guilty as to some counts and is hung on other counts, double jeopardy does
not apply where the inconsistency arises out of inconsistent responses to different counts,
not out of inconsistent responses to the same count. Id. at paragraph two of the syllabus.
It explained that because Liberatore was acquitted of the predicate offense of aggravated
arson, the hung verdict on the related felony murder count was an inconsistency within
the same count, and therefore barred by double jeopardy.
{¶17} In this case, Hall was charged with two counts of aggravated murder, two
counts of aggravated robbery, and two counts of kidnapping. The jury in the first trial
acquitted him of both aggravated murder counts, the aggravated robbery charge in
violation of R.C. 2911.01(A)(1) (brandishing a weapon), and the kidnapping charge in
violation of R.C. 2905.01(A)(3) (for the purpose of terrorizing or inflicting serious harm).
The jury was hung on the remaining counts of aggravated robbery in violation of R.C.
2911.01(A)(3) (did inflict serious harm) and kidnapping in violation of R.C.
2905.01(A)(2) (for the purpose of committing a felony, i.e, aggravated robbery). The
remaining aggravated robbery and kidnapping charges were predicate offenses. Because
Hall was not acquitted of the predicate offenses, there are no inconsistencies in the jury’s
verdict. Therefore, double jeopardy did not prevent the retrial of Hall on the aggravated
robbery and kidnapping counts.
{¶18} The first assignment of error is overruled.
Accomplice Instruction
{¶19} In his second assignment of error, Hall argues the trial court committed
plain error and denied him due process when it failed to give a mandatory accomplice
instruction, in violation of R.C. 2923.03(D), as to Sharvaise Robinson’s testimony.
{¶20} Hall’s trial counsel failed to request a jury charge on accomplice testimony,
as required by Crim.R. 30(A). Therefore, he waived all but plain error. Crim.R. 52(B)
provides that “[p]lain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” “Notice of plain error
under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In order to find
plain error under Crim.R. 52(B), it must be determined that, but for the error, the outcome
of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.
{¶21} When a defendant is charged with complicity and his accomplice testifies,
R.C. 2923.03(D) requires the court to give the following jury instruction:
The testimony of an accomplice does not become inadmissible because of
his complicity, moral turpitude, or self-interest, but the admitted or claimed
complicity of a witness may affect his credibility and make his testimony
subject to grave suspicion, and require that it be weighed with great caution.
It is for you, as jurors, in the light of all the facts presented to you from the
witness stand, to evaluate such testimony and to determine its quality and
worth or its lack of quality and worth.
{¶22} The purpose of this statutorily-mandated jury instruction is to ensure that the
jury is informed that the testimony of an accomplice is inherently suspect and must be
“viewed with suspicion and weighed with caution.” State v. Bell, 8th Dist. No. 97123,
2012-Ohio-2624, ¶ 37.
{¶23} In determining whether the trial court committed plain error by failing to
provide an accomplice instruction, a reviewing court considers three factors: (1) whether
other evidence at trial corroborated the alleged accomplice’s testimony; (2) whether the
jury was aware from the alleged accomplice’s testimony that he benefitted from agreeing
to testify against the defendant; and/or (3) whether the court instructed the jury generally,
regarding its duty to evaluate the credibility of the witnesses and its province to determine
what testimony is worthy of belief. State v. Kamleh, 8th Dist. No. 97092,
2012-Ohio-2061, ¶ 38.
{¶24} Robinson was originally charged, along with Hall and Beckwith, with
aggravated murder, aggravated robbery, and kidnapping. She and Hall were both
charged as Beckwith’s accomplices. At trial, Robinson testified that she is Hall’s niece
and was living with the Hall family when Copley died. She testified that she knew
Copley carried a lot of money because he often flashed his money. She also stated that
she was not home the night Copley was killed because she was visiting a friend who lived
nearby. Shortly after returning home and going to bed at approximately 1:00 a.m, she
received a phone call from another friend who informed her that Copley was dead.
Robinson testified that when Hall returned home later that night, he told her that
Beckwith robbed and killed Copley and they split the money.
{¶25} Although Robinson’s testimony was prejudicial, it was corroborated by
other witnesses. Several witnesses acknowledged that Copley often flashed his money
since he started his job several months before his death. JoAnn Hall testified that
Beckwith, Copley, and Hall were together in Hall’s room during the early evening hours.
Collins and Paradise both testified that they picked up Beckwith later that night and
dropped off Hall and Beckwith at Beckwith’s house after Beckwith would have already
committed the murder. Dillard’s August 2010 recorded statement corroborates
Robinson’s testimony that Hall and Beckwith planned to rob Copley and that Beckwith
shot Copley during the robbery. Although Dillard later recanted this statement, the
timeline and other details in his statement were corroborated by several other witnesses.
The testimony of these witnesses, considered together with Dillard’s August 2010
statement, corroborates Robinson’s trial testimony.
{¶26} Robinson also described the details of her plea agreement. She admitted
that, in exchange for her testimony at Hall’s trial, her charges were reduced to a single
count of obstructing justice, a third-degree felony. She also admitted that she had not yet
been sentenced and that her sentencing hearing was postponed until after Hall’s trial.
Therefore, the jury was aware that she was an accomplice, that she benefitted from her
testimony, and therefore that her testimony was inherently suspect.
{¶27} Finally, the court instructed the jury that it was the sole judge of the weight
and credibility of the evidence. In its charge, the court stated that in assessing a
witness’s credibility, the jury must consider the reasonableness of the testimony, the
accuracy of the witness’s memory, the witness’s frankness or lack of it, the witness’s
intelligence, and his or her interest or bias, if any, together with all the facts and
circumstances surrounding the testimony. Thus, the court properly instructed the jury
regarding its duty to evaluate the credibility of the witnesses and to determine what
testimony was worthy of belief.
{¶28} Although Robinson’s testimony was unfavorable to Hall, the evidence of
Hall’s involvement in the aggravated robbery of Eric Copley did not rest solely on the
accomplice’s testimony. Furthermore, because the jury was aware of Robinson’s plea
agreement and was instructed on its duty to determine the credibility of witnesses, we find
that any error by the court in failing to give an accomplice instruction did not rise to the
level of plain error.
{¶29} The second assignment of error is overruled.
Dillard’s Prior Unsworn Statements
{¶30} In the third assignment of error, Hall argues he was denied due process of
law when the trial court allowed the state to introduce evidence of Dillard’s prior
unsworn statements. He contends that although Dillard was called as a court’s witness,
Dillard’s August 2010 statement was inadmissible because it was not made under oath
and there was no evidence of surprise and affirmative damage to the state’s case before
the statement was introduced.
{¶31} Evid.R. 614(A) provides that “[t]he court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are entitled to cross-examine
witnesses thus called.” Evid.R. 614 authorizes the court to call a witness as a court’s
witness if the party who would have called the witness demonstrates that the witness is
likely to recant a prior statement favorable to that party. State v. Arnold, 189 Ohio
App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218, ¶ 43 (2d Dist.), citing State v. Kiser, 6th
Dist. No. S-03-028, 2005-Ohio-2491. The purpose of calling a witness as a court’s
witness is to allow for a proper determination in a case where a witness is reluctant or
unwilling to testify. State v. Curry, 8th Dist. No. 89075, 2007-Ohio-5721, ¶ 18.
{¶32} When the court calls a witness on its own motion, a party need not satisfy
the surprise and affirmative damage requirements of Evid.R. 607(A) in order to impeach
the witness. State v. Apanovitch, 33 Ohio St. 3d 19, 22, 514 N.E.2d 394 (1987). By
authorizing the court to call a witness who may then be cross-examined by any party,
Evid.R. 614 creates an exception to the limitation imposed by Evid.R. 607(A), which
requires a showing of surprise or affirmative damage before a party may impeach its own
witness.
{¶33} Further, “a trial court possesses the authority in the exercise of sound
discretion to call individuals as witnesses of the court.” State v. Adams, 62 Ohio St. 2d
151, 404 N.E.2d 144 (1980), paragraph four of the syllabus. A trial court does not abuse
its discretion in calling a witness as a court’s witness “‘when the witness’s testimony
would be beneficial to ascertaining the truth of the matter and there is some indication
that the witness’s trial testimony will contradict a prior statement[.]’” Arnold at ¶ 44,
quoting State v. Schultz, 11th Dist. No. 2003-L-156, 2005-Ohio-345, ¶ 29.
{¶34} Prior to Hall’s first trial, the trial court issued a material witness arrest
warrant for Dillard. For seven weeks, Dillard avoided capture, but eventually turned
himself in. At the first trial, Dillard, testifying as a court’s witness, testified that his
original August 2010 statement was true except for the part that Hall planned the robbery.
In the second trial, Dillard testified that the entire August 2010 statement was a lie. The
record demonstrates that Dillard made several prior inconsistent statements. He was
apparently reluctant to testify. And because it was impossible to predict how Dillard
would testify at the second trial, the trial court was well within its discretion to call
Dillard as the court’s witness. As such, the state was free to cross-examine him without
establishing the surprise and affirmative damage requirements of Evid.R. 607(A).
{¶35} The third assignment of error is overruled.
Sufficiency and Weight of the Evidence
{¶36} In the fourth assignment of error, Hall argues his aggravated robbery and
kidnapping convictions were not supported by sufficient evidence. In the fifth assignment
of error, Hall argues that his convictions were against the manifest weight of the
evidence. However, in the fifth assignment of error, he relies on the same arguments
raised in the fourth assignment of error with respect to sufficiency of the evidence. Thus,
although the terms “sufficiency” and “weight” of the evidence are “quantitatively and
qualitatively different,” we will address these issues together, while ensuring that we
apply the distinct standards of review to Hall’s arguments. State v. Thompkins, 78 Ohio
St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶37} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. 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
essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St. 3d 259, 574 N.E.2d 942 (1991), paragraph two of the syllabus.
{¶38} In contrast to sufficiency, “weight of the evidence involves the inclination of
the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the
evidence is a test of adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of
inducing belief.” State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing court
must consider all the evidence in the record, the reasonable inferences, and the credibility
of the witnesses, to determine whether, “in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin,
20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶39} Hall argues there was insufficient evidence to support his convictions and
that Robinson’s testimony was not credible because Robinson contradicted herself when
she first stated that Hall and Beckwith split Copley’s money, then later stated that Hall
threw the money in Beckwith’s face. Hall also contends that there was no evidence
linking him to Copley’s murder or showing how he aided and abetted Beckwith in the
crimes. Finally, he asserts that Collins and Paradise provided an alibi defense. We find
Hall’s arguments unsupported by the record.
{¶40} In this case, Hall was convicted of aggravated robbery and kidnapping with
firearm specifications under a complicity theory. He was convicted of R.C.
2911.01(A)(3), which states that “[n]o person, in attempting or committing a theft
offense, * * * or in fleeing immediately after the * * * offense, shall * * * [i]nflict, or
attempt to inflict, serious physical harm on another.” He was also convicted of
kidnapping in violation of R.C. 2905.01(A)(2), which states that “[n]o person, by force,
threat, or deception * * * shall * * * restrain the liberty of the other person * * * [t]o
facilitate the commission of any felony or flight thereafter[.]”
{¶41} Ohio’s complicity statute, R.C. 2923.03, provides that “[n]o person, acting
with the kind of culpability required for the commission of an offense, shall * * * [a]id or
abet another in committing the offense.” R.C. 2923.03(A)(2). To prove complicity by
aiding and abetting under R.C. 2923.03(A)(2), the evidence must show that the defendant
“supported, assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the criminal intent of the
principal.” State v. Johnson, 93 Ohio St. 3d 240, 2001-Ohio-1336, 754 N.E.2d 796,
syllabus. Such intent may be inferred from the circumstances surrounding the crime.
Id.
{¶42} Although there was no direct evidence linking Hall to the crimes,
circumstantial evidence proved his involvement as an accomplice. Circumstantial
evidence alone is sufficient to support a conviction. State v. Nicely, 39 Ohio St. 3d 147,
529 N.E.2d 1236 (1988), paragraph one of the syllabus. Circumstantial evidence and
direct evidence inherently possess the same probative value, and therefore should be
subjected to the same standard of proof. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 942
(1991), at paragraph one of the syllabus. “[A] conviction based upon purely
circumstantial evidence may be just as reliable as a conviction based upon direct
evidence, if not more so.” Apanovitch, 33 Ohio St. 3d at 27, 514 N.E.2d 394 (1987).
{¶43} It is undisputed that Copley was at Hall’s house for several hours before he
was shot on his way home. It was well known that Copley carried large amounts of cash
because he was paid on a weekly basis and often flashed his money, which he kept in his
pocket. His mother testified that she cashed his paycheck as usual and gave him the
money the day before his death. However, investigators did not find any money in his
pockets after his death.
{¶44} Although Hall was with Collins and Paradise when Copley was shot, Dillard
told the police that Hall admitted that he told Beckwith to rob Copley and they would split
the money. Anderson testified that she saw a hooded man run toward East 77th Street
after the shooting, which is consistent with the direction Collins, Paradise, and Hall later
observed Beckwith walking. By the time they picked up Beckwith, it was late enough
that the robbery and murder had already occurred. Collins and Paradise dropped off Hall
and Beckwith at Beckwith’s house. According to Dillard, Beckwith told Hall that he
shot Copley and Hall was angry because murder was not part of their plan.
{¶45} This evidence was corroborated by additional evidence. Hall and JoAnn
told police that Copley was at their house prior to his death, that Hall left the house with
Collins and Paradise, and that Hall did not return home until after Copley’s death.
Robinson testified that when Hall returned home around 1:00 a.m., he told her that
Beckwith had killed Copley and offered to split the money. Hall warned Robinson not to
tell anyone because Beckwith threatened him with a gun.
{¶46} Further, Copley was friends with Hall and Robinson, but hardly knew
Beckwith. Beckwith left Hall’s house shortly before Copley went home. Beckwith
would not have known where Copley lived and the route he walked home unless someone
had told him. Copley was shot somewhere between Hall’s house and home.
{¶47} The evidence indicates that Beckwith seriously injured Copley while
committing a theft offense. Viewing the evidence in a light most favorable to the state,
we find that the circumstantial evidence is sufficient to prove that Hall incited and
encouraged Beckwith to rob Copley and that he shared the same criminal intent as
Beckwith. Having considered all the evidence, the reasonable inferences, and the
credibility of the witnesses, we find that Hall’s convictions are supported by the weight of
the evidence. Therefore, Hall’s aggravated robbery and kidnapping convictions are
supported by sufficient evidence and are not against the weight of the evidence.
{¶48} The fourth and fifth assignments of error are overruled.
Firearm Specifications
{¶49} In the sixth assignment of error, Hall argues that there was insufficient
evidence to convict him of the firearm specifications. He contends there was no
evidence linking him to any firearm.
{¶50} Liability as an accomplice to aggravated robbery does not require that the
accomplice have specific prior knowledge that the principal will employ a weapon, i.e.,
inflict serious, physical harm on the victim while committing the theft offense. R.C.
2911.01(A)(3). As an accomplice, appellant is deemed to have committed every element
of the offense committed by the principal, including possession of the weapon. State v.
Chapman, 21 Ohio St. 3d 41, 487 N.E.2d 566 (1986). In Chapman, the Ohio Supreme
Court upheld an accomplice’s convictions for aggravated robbery and the accompanying
firearm specifications, despite his contention that there was no evidence he was aware
that a weapon would be used. Advance knowledge that a weapon will be used is not
required for accomplice liability. Chapman at 42-43.
{¶51} Therefore, despite the lack of any direct evidence establishing that Hall was
in possession of a firearm, he was properly convicted of the firearm specifications as an
accomplice to the crimes.
{¶52} The sixth assignment of error is overruled.
Ineffective Assistance of Counsel
{¶53} In the seventh assignment of error, Hall argues he was denied his
constitutional right to the effective assistance of counsel because his trial counsel failed to
cross-examine Sharvaise Robinson as to her motivation and bias to lie. He contends that
because Robinson was the state’s primary witness, his counsel’s failure to establish her
bias prejudiced his trial.
{¶54} To prevail on a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance fell below an objective standard of reasonableness and
that prejudice arose from counsel’s performance. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136,
538 N.E.2d 373 (1989), paragraph two of the syllabus. A defendant must show that
counsel acted unreasonably and that, but for counsel’s errors, there exists a reasonable
probability that the result of the proceeding would have been different. Strickland at
696; Bradley at paragraph three of the syllabus. In making this determination, the
reviewing court must presume that counsel’s conduct was competent. Id.
{¶55} Robinson testified as an accomplice. As previously explained, Robinson’s
testimony was corroborated by several other witnesses. She admitted that she entered a
plea agreement with the state whereby the murder, aggravated robbery, and kidnapping
charges against her were reduced to a single count of obstructing justice in exchange for
her testimony against Hall. She testified that her sentencing hearing was postponed until
after Hall’s trial. Thus, the jury was aware that she benefitted from her testimony and that
her testimony was inherently suspect. Cross-examination of these issues, which were
already established on direct examination, would have been redundant and would not
have added any new information.
{¶56} Furthermore, this court must presume that a licensed attorney is competent
and that the challenged action is the product of sound trial strategy. Strickland at 689.
Robinson’s testimony on cross-examination informed the jury that Hall was distressed
when he learned that Copley had been killed. Counsel’s decision not to cross-examine
Robinson on her bias was likely the product of trial strategy.
{¶57} Therefore, trial counsel’s decision not to cross-examine Robinson on her
plea agreement and apparent bias did not affect the outcome of the trial and was not
ineffective assistance.
{¶58} Accordingly, the seventh assignment of error is overruled.
{¶59} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR