State v. Correa , 2015 Ohio 3955 ( 2015 )

[Cite as State v. Correa, 2015-Ohio-3955.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO )
)
PLAINTIFF-APPELLEE )
) CASE NO. 13 MA 23
V. )
) OPINION
DARIO CORREA )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 11 CR 804A
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Ralph Rivera
Assistant County Prosecutor
Mahoning County Prosecutor's Office
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney John P. Laczko, LLC
3685 Stutz Drive, Ste. 100
Canfield, Ohio 44406
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: September 25, 2015
[Cite as State v. Correa, 2015-Ohio-3955.]
DeGENARO, J.
{¶1} Defendant-Appellant Dario Correa appeals the February 15, 2013
judgment of the Mahoning County Court of Common Pleas convicting him of
aggravated murder and aggravated robbery, both with firearm specifications, along
with tampering with evidence and arson, and sentencing him accordingly. On appeal,
Correa asserts that the trial court erroneously denied his motion for a mistrial; that his
convictions are not supported by sufficient evidence or are against the weight of the
evidence; that the trial court erred by instructing the jury on complicity; and that the
trial court erred by imposing consecutive sentences. Upon review, Correa's
assignments of error are meritless. Accordingly, judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On January 1, 2011, Randy Cappelli was shot to death on Shady Run
Road in Youngstown. His body was found next to his car which had been set on fire.
On January 5, 2012, Correa was indicted by the Mahoning County Grand Jury
charged with aggravated murder, R.C. 2903.01(B), an unclassified felony, with an
accompanying firearm specification under R.C. 2941.145(A); aggravated robbery, R.C.
2911.01(A)(1), a first-degree felony, with an accompanying firearm specification under
R.C. 2941.145(A); tampering with evidence, R.C. 2921.12(A)(1), a third-degree felony;
and arson, R.C. 2909.03(A)(1) and (B)(2)(b), a fourth-degree felony.
{¶3} Co-defendant Emmanuel Dawson was charged in the same indictment
with the same offenses. Dawson subsequently entered into an agreement with the
State; in exchange for testifying against Correa, the State agreed to dismiss the
indictment against Dawson.
{¶4} Correa was arraigned, pled not guilty and counsel was appointed. He
later waived his speedy trial rights, specifying it would be revoked on January 22,
2013; and a jury trial commenced on that date. The following evidence was adduced.
{¶5} On January 1, 2011, Doris Sobnosky and her friend Jodi Menough
celebrated New Year's Eve at Sobnosky's house. Sobnosky explained that the portion
of Shady Run where she lives is a dead-end street, where only she and a 90-year-old
woman live. She and Menough drank a few beers that evening, but stopped around
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midnight due to the celebratory shooting going on around her house; they resumed
drinking sometime after 3:00 a.m. when the shooting subsided.
{¶6} Just after 4:00 a.m., Sobnosky opened her front door after she heard a car
door, something she found unusual at that time of night. As she opened the door, she
saw a car driving down Shady Run, which appeared to be a gray or dark blue Toyota.
She said it was "pouring" outside at the time, but visibility was good, because she and
her neighbor had lights on, and there was still snow on the ground, which provided
ambient light. After hearing six gunshots, she shut the door immediately and began to
look out of the peephole instead.
{¶7} The gunshots sounded like they came from the vehicle that passed by
her house; however, she could not tell whether they came from inside or outside of the
car. On cross-examination, she stated that she heard the gun shots simultaneously
with the car driving down the street. She said as far as she knew, the car did not stop
before the shots were fired.
{¶8} Sobnosky watched the vehicle make a U-turn with its door open, but she
could not see how many people were inside. The door was then pulled shut as the
vehicle fled the scene towards Powersdale Avenue, the cross-street.
{¶9} Sobnosky turned out her lights and went into her bedroom, watching out of
that window, which also faces the road, but is recessed. Seven minutes later, she saw the
same vehicle return from Powersdale and stop in front of the vacant house next door. She
was certain that seven minutes had elapsed because she had her cell phone in her hand
and was watching the clock. The car first pulled to the right curb, backed up, and then pulled
to the left curb.
{¶10} Sobnosky then saw two men exit the vehicle and approach the hatchback.
One appeared to be wearing a baseball cap. She said the two opened the hatchback and it
appeared as if they were looking for something. One man approached the front of the car
and opened the hood. At that point, she called 911 because she feared they were lighting
the car on fire when she saw them under the hood. Sobnosky went back downstairs to get
a better view from the window there. She then observed a body near the right-hand curb
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where the vehicle had originally stopped.
{¶11} She said the two men then began walking up Shady Run, talking and
laughing amongst themselves. She described the men as "on the younger side, not old
men, thin, one light, one dark." Sobnosky admitted, however, that her eyesight was "not
very good," and that she was not wearing her glasses that night. For that reason, she gave
the phone to Menough to give police a better description. Sobnosky said she lost sight of
the men as they walked away. Soon thereafter, police arrived.
{¶12} Menough's testimony mainly mirrored Sobnosky's. However, Menough
recalled that the two had much more alcohol to drink; believing they mostly consumed
two 12-packs of beer. She described the suspects as a black male wearing a red hat,
and a Hispanic male with a white T-shirt. The Hispanic male appeared taller and
thinner than the black male. She admitted she is nearsighted and although she wore
glasses while on the stand, she was not wearing them the night of the shooting. In
addition, Detective-Sergeant Daryl Martin subsequently testified that Menough
originally described the second man as Caucasian and not Hispanic.
{¶13} Raymond Gallaugher, Sr. testified that a few days prior to January 1,
2011, he went to see men he knew as "Emoe" and "Detroit" to purchase drugs at a
house on Hunter Street. He did not recall the address, but said it was located about
two or three blocks from Shady Run. While there, he met the victim, Cappelli; he had
never seen Cappelli there before. He recalled sharing a crack pipe with Cappelli and
talking with him. Gallaugher also recalled that Cappelli offered to go to his wife's house
and get the washing machine to give it to Dawson and Terrence Emmanuel,
presumably for more crack. Gallaugher contacted police after he heard that Cappelli
had been killed and that his car was found on Shady Run Road. He admitted to having
a past felony criminal record, but said he did not receive anything in exchange for his
testimony; the last time he was arrested was in 2008.
{¶14} Madeline DeJesus testified that that she was Cappelli's girlfriend, that he
drove a 2003 "Toyota Scion" and that he abused crack cocaine. DeJesus learned from
Det. Martin on January 1, 2011, that Cappelli had been murdered. DeJesus last saw
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Cappelli alive on the morning of December 31, 2010, between 8:30 a.m. and 9:30 a.m.
after he had removed the washing machine from her house to exchange for more
crack. She was upset and Cappelli said he would get it back for her. She identifed her
washing machine after it was taken by police as evidence out of the house on Hunter.
{¶15} Emmanuel Dawson who was from Detroit, Michigan and also known by
the name "Emoe," testified next. He admitted that in exchange for his testimony
against Correa, the State had agreed to dismiss all charges against him. He also
admitted that he had been previously convicted of armed robbery, felony firearms
charges, drug charges, credit card fraud, and domestic violence, and had been
incarcerated for 12 years in Michigan. He conceded that it was not easy for him to
testify because he did not want to be a "snitch," and testifying against Correa, a
relation of his brother, would create a division within his family. After making a
statement to police and while incarcerated, Dawson wrote two letters to Correa;
assuring Correa in one that he would not testify against him and urging him not to
worry because neither one of them had shot Cappelli. Dawson said when he wrote
the letter he was having second thoughts about testifying.
{¶16} At the end of 2010, after being released from prison, Dawson was in
Youngstown selling drugs out of his brother Terrence's house on Hunter Avenue where
he met Correa. His sister-in-law Sylvia Cuebas is also Correa's aunt. Dawson first met
Cappelli when he came to Terrence's house to buy drugs. Cappelli would drive him to
Detroit multiple times to pick up additional drugs and in exchange Dawson supplied
Cappelli with more drugs. The two talked a lot and he got to know Cappelli, who
continued to drive Dawson in exchange for crack for about a month prior to his death.
{¶17} During the early morning hours of December 31, 2010, Cappelli offered
to sell Terrence a washing machine in exchange for $20 cash and $60 worth of crack.
Dawson stated that Correa was present but not involved in the transaction. Later that
morning, Cappelli drove Dawson to the grocery store and they returned to Terrence's
house where they all ate breakfast. After breakfast, Dawson, Cappelli, and Correa
went to the liquor store, and later in the day they went to Golden Corral for dinner, but
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Cappelli stayed in the car and smoked crack. Afterwards, they returned to Terrence's
house and stayed there until shortly after midnight.
{¶18} Dawson testified that around 12:30 a.m., he, Correa and Cappelli went to
Deja Vu, a club on Market Street in Youngstown. Again, Cappelli stayed in his vehicle,
but Dawson and Correa stayed in the club until it closed, around 2:00 or 2:30 a.m.
After leaving the club, Dawson stated that his memory was blurry because he had
been drinking and taking pills all night. Dawson was in the front passenger seat while
Cappelli drove, and remembered leaving the parking lot, but he fell asleep.
{¶19} Dawson later awoke to Correa and Cappelli arguing, they both exited the
vehicle and Correa shot Cappelli. Dawson heard gunshots and then saw Cappelli's
body fall. Correa returned to the vehicle holding a gun. Dawson denied carrying a gun
that evening, but that Correa probably had a gun on his person the entire night. Correa
drove the two back to Terrence's house which was right around the corner.
{¶20} Dawson told Terrence what happened. Correa and Dawson then decided
to drive Cappelli's vehicle back to where Cappelli was shot, and it was set on fire, but
Dawson did not remember who started it. The two then walked back to Terrence's
house.
{¶21} On cross-examination, Dawson admitted that his main reason for
testifying was to get himself out of trouble. He also said that Cappelli told him the day
before New Year's Eve that he was having problems with his girlfriend and that she
had kicked him out of her house.
{¶22} As part of his investigation, Youngstown Detective-Sergeant Daryl Martin
interviewed both Dawson and Correa. He first spoke to Dawson by phone, while
Dawson was incarcerated in a Michigan county jail. According to Dawson, Det. Martin
confronted him with the evidence police had so far and Dawson feared he was being
"set up" for a murder he had not committed. As a result, Dawson said he decided to
make a truthful statement about what happened that night. About one week after
speaking with Dawson by phone, Det. Martin drove to Michigan to interview Dawson.
Dawson's statement to Det. Martin was consistent with his trial testimony.
-6-
{¶23} Approximately one year later, after Correa had been arrested pursuant to
the indictment, Det. Martin also interviewed Correa. During the detective's testimony, A
DVD of that interview was played for the jury. During the interview, Correa admitted he
and Dawson were with Cappelli on the night in question, but said Cappelli dropped
them both off at Terrence's house around 2:30 a.m. and that they did not leave again
that night. Even after the detective explained to Correa that Dawson had implicated
him in the shooting, Correa still maintained that neither of them shot Cappelli. Notably,
on the video, when Det. Martin leaves the interview room, Correa can be seen on
camera smiling, laughing and singing to himself.
{¶24} Det. Martin further testified that Cappelli's Toyota was found burning
when officers arrived on the scene, and eight .380 shell casings recovered at the
scene were fired from the same weapon, but no gun was ever recovered.
{¶25} On cross-examination, Det. Martin admitted that Cappellis's sister had
mentioned to him to look into his girlfriend DeJesus as a possible suspect, but that no
further information was given. He admitted there were other adults at the Hunter
Avenue house on the night of Cappelli's murder, but that he only interviewed Terrence
and his wife Sylvia, along with Dawson and Correa. On redirect, he affirmed there was
no evidence pointing towards any other suspects aside from Dawson and Correa.
{¶26} Dr. Joseph Ohr, M.D., the medical examiner and deputy coroner testified
Cappelli died of multiple gunshot wounds to his head and neck, and the manner of
death was homicide.
{¶27} At the close of the State's case, the defense made a Crim.R. 29 motion
for acquittal, which was overruled by the trial court.
{¶28} Correa then testified in his own defense, admitting he had prior drug
convictions. At the time period in question, he lived in New Jersey, but was in
Youngstown to celebrate New Year's Eve, and had been drinking and taking pills that
night. Correa's testimony was identical to Dawson's up to the point that the two left the
club. Specifically, Correa testified that when the two left the club, at around 2:00 a.m.,
Dawson got into an argument with a girl outside, and a Youngstown police officer told
-7-
him to get Dawson out of there before he was arrested. The three men stopped to get
gas and drove back to Terrence's house, arriving around 2:30 a.m. Cappelli dropped
them off and that was the last time he saw Cappelli. When he and Dawson arrived
Terrence and Sylvia were still awake, talking and drinking, but everyone else in the
house had gone to bed. Correa fell asleep shortly after returning to the house.
{¶29} Correa stated that his father woke him the next morning around 6:00
a.m., and he left because he had to return to New Jersey for work. He said he first
learned that Cappelli had been murdered a year after the fact, when Sylvia texted him
that he was wanted by police in connection with the crime. Correa denied murdering
Cappelli and further stated that Dawson did not murder Cappelli either. He said he
only knew Cappelli for a few hours and there was no reason for him to have a problem
with Cappelli, who had done "nothing but help my family."
{¶30} On cross examination, the prosecutor questioned Correa about why
Dawson would lie and concoct a story to implicate him in the murder, as Correa
contended, when there were witnesses to corroborate his contention that he and
Dawson were asleep at the Hunter Avenue house at the time of the murder. Correa
responded that Dawson was scared and did not want to return to prison.
{¶31} Correa presented two alibi witnesses: his aunt, Sylvia Cuebas, who raised
him until he was about 18 months old, and Terrence Emmanuel, Correa's uncle by
marriage to Sylvia. Sylvia testified that on January 1, 2011, Cappelli dropped off Dawson
and Correa at her house around 2:30 a.m. and that Dawson and Correa were intoxicated
and fell asleep on her couch about ten minutes after arriving.
{¶32} Later that morning, Sylvia said she heard a lot of sirens; she and
Terrence walked down the street to see what was going on, but an officer stopped
them and told them to go home. At that time, she did not know what had happened to
cause the police presence; she learned about the shooting after the fact, while
watching the news. Contrary to Correa's testimony, Sylvia said Correa left her house
around noon on January 1, 2011, not 6:00 a.m.
{¶33} Terrence testified that Cappelli had been at his house for several days prior
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to his murder because he was having problems with DeJesus. Dawson and Correa
returned from the club around 2:30 a.m. on January 1, 2011, and that Cappelli borrowed
his phone to call someone from the driveway and then left. Although Terrence testified that
Dawson and Correa fell asleep together on his couch and took pictures of them, he later
conceded he never gave any photographs to police to verify the two were at his home
during the time of Cappelli's murder.
{¶34} Similar to Sylvia's testimony, Terrence said they heard a lot of sirens and
they walked down the street to see what was going on, but an officer stopped them
and told them to go home. However, Terrence's testimony was inconsistent with
Sylvia's insofar as he said police told them there was "a body" at the scene.
{¶35} Terrence admitted that he was previously convicted of forgery and
carrying a concealed weapon, and that he called Dawson, who was jailed in Michigan,
and sent newspaper clippings about the case.
{¶36} The jury convicted Correa on all indicted charges. Almost immediately
the trial court conducted a sentencing hearing. The State advocated for lengthy
consecutive sentences, based upon the senselessness of the crime and Correa's lack
of remorse. The victim's brother addressed the court. Defense counsel argued for a
more lenient sentence based upon Correa's youth and lack of an extensive criminal
history. The trial court asked Correa if he had anything to say for himself and Correa
made a brief statement professing his innocence of the crimes.
{¶37} After considering the record, the oral statements, along with the
principles and purposes of sentencing under R.C. 2929.11 and balancing the
seriousness and recidivism factors under R.C. 2929.12, the trial court sentenced
Correa to a prison term of: 25 years to life for the aggravated murder count, with a
consecutive three year for the firearm specification; 11 years for the aggravated
robbery count with a consecutive term for the firearm specification; three years for the
tampering with evidence count and one year for the arson count. After making
findings pursuant to R.C. 2929.14(C)(4), the trial court merged the two firearm
specifications, and then ordered the sentences for each count, along with the
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remaining firearm specification to run consecutively with one another, for an aggregate
term of 43 years to life in prison. The court imposed a mandatory five year term of
post-release control and explained the ramifications of violating post-release control.
{¶38} Correa filed a post-verdict Crim.R. 29(C) motion for acquittal arguing the
jury's verdict was not supported by sufficient evidence, which the trial court overruled.
Mistrial – Reference to Polygraph Examination
{¶39} In his first of five assignments of error, Correa asserts:
The trial court abused its discretion by failing to grant Appellant's motion
for a mistrial due to repeated statements regarding co-defendant
Emmanuel Dawson's request to take a polygraph examination.
{¶40} The decision to declare a mistrial rests within the sound discretion of the
trial court. State v. Hood, 132 Ohio App.3d 334, 337, 724 N.E.2d 1238 (7th Dist.1999),
citing State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343, 349-350 (1987). "Abuse
of discretion means an error in judgment involving a decision that is unreasonable
based upon the record; that the appellate court merely may have reached a different
result is not enough.” State v. Dixon, 7th Dist. No. 10 MA 185, 2013–Ohio–2951, ¶ 21.
This deferential standard controls our review because "[t]he trial judge occupies the
best position to determine whether a mistrial is warranted." Hood, 132 Ohio App.3d at
337.
{¶41} A decision to declare a mistrial is proper when: "(1) there was a manifest
or high degree of necessity for declaring a mistrial or (2) without a mistrial, public
justice would have been diminished." Id. "Granting a mistrial is an extreme remedy
only warranted in circumstances where a fair trial is no longer possible and it is
required to meet the ends of justice." State v. Brooks, 7th Dist. No. 07-MA-79, 2008-
Ohio-6600, ¶12, citing State v. Jones, 83 Ohio App.3d 723, 737, 615 N.E.2d 713(1992). Moreover, it is not proper to grant a mistrial "merely because some error or
irregularity has intervened, unless the substantial rights of the accused or the
prosecution are adversely affected." State v. Lukens, 66 Ohio App.3d 794, 809, 586
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N.E.2d 1099 (1990).
{¶42} As an initial matter, Correa's argument regarding the inadmissibility of
polygraph examination results are irrelevant because no results of any polygraph test
were admitted during trial or even proffered. State v. Russell, 2d Dist. No. 21458,
2008-Ohio-774, ¶108. This leaves for our resolution Correa's contention that the mere
mention that a witness or defendant has taken or declined a polygraph examination
can be prejudicial error; specifically that a mistrial was warranted after the jury was
exposed to two comments regarding Dawson's refusal to take a polygraph
examination.
{¶43} The Tenth District in State v. Rowe, 68 Ohio App.3d 595, 589 N.E.2d
394 (10th Dist.1990) delineated factors to determine whether testimony presented
regarding a polygraph examination is prejudicial: "(1) whether defendant objected
and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3)
whether there were repeated references; (4) whether the reference was an attempt to
bolster a witness's credibility; (5) whether the results of the test were admitted rather
than merely the fact that a test had been conducted." Rowe at 611. The Rowe test has
been followed in more recent cases involving the improper admission of polygraph
examination testimony during a criminal trial. See, e.g., State v. Rojas, 10th Dist. No.
11AP–683, 2012-Ohio-1967; State v. Meares, 5th Dist. No. 10-CA-2, 2011-Ohio-43.
{¶44} The first instance involved defense counsel's cross-examination of
Dawson, where he indicated that he was contacted by Det. Martin who tried to talk him
into taking a polygraph examination. The State immediately objected and the trial court
instructed the jury to disregard Dawson's response to the question.
{¶45} The second instance occurred during the State's direct examination of
Det. Martin while a DVD of Correa's interview was played for the jury; this contained
the following discussion between Det. Martin and Correa regarding Dawson's refusal
to take a polygraph examination which the State failed to redact:
Det. Martin: The reason I wanna talk to you is cause I don’t know for
sure who, I, I firmly believe you were there, okay. I’m not saying you
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shot anybody, okay. I’m just telling you what I think, okay. I know for a
fact that you were there. But that’s okay, I’m not going to argue with you
about it. I can understand your position and why you would not want to
put yourself there, okay. But I’m just saying if this kid’s lying and he’s
putting the shooting on you, which is exactly what he’s doing, then I’m
just affording the opportunity cause whoever comes up with the best
story about who was the shooter and wasn’t the shooter, they get the
best deal. That’s what it boils down to and that’s why I’m here to you, to
offer it to you. Okay. * * * The only reason why he was getting charged
with just tampering with evidence cause he was going to testify against
you but under the agreement was he had to take a polygraph test, okay,
and I went back all the way up to Michigan, it ain’t a pleasant drive. I
don’t like Michigan. I went back up there to give him the polygraph test
and at the last second he backed out, which make me wonder one of two
things, either he’s just afraid to do it or he’s the shooter and he’s afraid
we’re gonna find out, and that’s
Correa: I don’t know what’s his reasoning for anything.
Det. Martin: Well, you’re not close to the guy, right.
Correa: I don’t even know him like that, this, that was the first time I ever
met him. (Emphasis added.)
{¶46} Defense counsel sought to cross-examine Det. Martin about the
polygraph since he stated on the DVD that he found Dawson's refusal to take it
indicative that Dawson was lying, a position detrimental to the State's case. The State
opposed this request, apologized for inadvertently failing to redact the conversation
about the polygraph and suggested that the trial court give another curative instruction.
The trial court denied that line of cross-examination, concluding that doing so would
essentially allow Det. Martin to opine about Dawson's credibility, which is not permitted
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under the Rules of Evidence.
{¶47} Correa moved for a mistrial, which the trial court overruled, giving the
following curative instruction instead:
Ladies and gentlemen, the court had previously instructed you to
disregard testimony concerning a polygraph test or examination. That
instruction came during the testimony of Emmanuel Dawson. There was
testimony during the video statement of the defendant Dario Correa and
Detective Sergeant Martin concerning a polygraph examination. I am,
once again, instructing you to disregard testimony concerning a
polygraph examination and to treat any such testimony as if it never
happened. I give this curative instruction because polygraph
examinations are not normally admissible in Ohio courts. It's only if there
is a stipulation or agreement between the parties that a polygraph
examination can be admitted. There's been no stipulation or agreement,
so, again, you are instructed to disregard any reference or testimony
concerning polygraph examinations.
{¶48} Applying the Rowe factors here, first, objections were lodged to both
references to the polygraph test; by the State to the first and by Correa to the second.
Following both comments, the trial court instructed the jury to disregard the
statements. Second, both comments appear to be inadvertent. Third, while there were
two references, they were brief and did not concern actual results of a polygraph test.
Fourth, neither comment was an attempt to bolster Dawson's credibility; in fact, the
reference on the DVD hurts Dawson's credibility and, prejudiced the State not the
defense. Fifth, there were no results to present, because Dawson refused to take a
polygraph test.
{¶49} Accordingly, the trial court's curative instructions were sufficient and it
did not abuse its discretion by denying Correa's motion for a mistrial. Accordingly,
Correa's first assignment of error is meritless.
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Sufficiency and Manifest Weight
{¶50} In his second and third assignments of error Correa asserts respectively:
The trial court denied Appellant due process under the fourteenth
amendment due to the fact his convictions for aggravated murder,
aggravated robbery with firearm specifications, tampering with evidence
and arson were against the manifest weight of the evidence and the
jury's verdict was inconsistent with the evidence and testimony presented
at trial.
The trial court erred to the prejudice of Appellant by denying Appellant's
criminal rule 29 motion for directed verdict of acquittal when there was
insufficient evidence to prove the elements of the crimes charged against
appellant by proof beyond a reasonable doubt.
{¶51} Because the facts and testimony relative to each assignment are
identical, for clarity of analysis they will be discussed together and in inverse order.
{¶52} A challenge to the sufficiency of the evidence tests whether the state has
properly discharged its burden to produce competent, probative, evidence on each
element of the offense charged.” State v. Petefish, 7th Dist. No. 10 MA 78, 2011-Ohio-
6367, ¶16. Thus, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to sustain
a verdict is a question of law. Id. 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 essential elements of the
crime proven beyond a reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997).
{¶53} Conversely, “[w]eight of the evidence concerns the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387,
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678 N.E.2d 541 (1997). A conviction will only be reversed as against the manifest
weight of the evidence in exceptional circumstances. Id. This is so because the triers
of fact are in a better position to determine credibility issues, since they personally
viewed the demeanor, voice inflections and gestures of the witnesses. State v. Hill, 75
Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
231, 227 N.E.2d 212 (1967).
{¶54} Thus, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences and 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. However, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002–Ohio–
1152, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th
Dist.1999). Under these circumstances, the verdict is not against the manifest weight
and should be affirmed.
{¶55} Correa was convicted of four counts. Aggravated murder is defined as:
"purposely cause the death of another * * * while committing or attempting to commit,
or while fleeing immediately after committing or attempting to commit, * * * arson,
aggravated robbery, * * *[.]" R.C. 2903.01(B). Aggravated robbery is defined as
attempting or committing a R.C. 2913.01 theft offense or fleeing immediately
thereafter, and having a deadly weapon on the offender's person/control and
displaying/brandishing/indicating/using it. R.C. 2911.01(A)(1).
{¶56} Tampering with evidence is defined as altering, destroying, concealing or
removing evidence, with knowledge that a proceeding/investigation is in progress, in
order to impair its value/provability as evidence. R.C. 2921.12(A)(1). Finally, arson is
defined as knowingly, by means of fire or explosion, causing, or creating a substantial
risk of, physical harm to any property of another without the other person's consent.
R.C. 2909.03(A)(1).
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{¶57} Dawson testified that during the early morning hours of January 1, 2011,
he left a club with Cappelli and Correa and that he fell asleep in the car. Sometime
thereafter, Dawson awoke to Correa and Cappelli arguing, then they both exited the
vehicle and Correa shot Cappelli. Dawson heard gunshots and then saw Cappelli's
body fall and Correa return to the vehicle holding a gun.
{¶58} The coroner testified that multiple gunshot wounds to the head and neck
caused Cappelli's death, and ruled the death a homicide.
{¶59} Dawson further testified that Correa drove the two back to Terrence's
house, and then they decided to return the car to the scene of the shooting a short
time later. There, Cappelli's vehicle was set on fire, though Dawson said he did not
remember who started it.
{¶60} When reviewing for sufficiency, the evidence is viewed in the light most
favorable to the prosecution. Smith, 80 Ohio St.3d 89. Thus, this testimony supports
the convictions, and survives a sufficiency review.
{¶61} With regard to manifest weight, this case turned on the jury's credibility
determinations. The jury could have chosen to believe Dawson's testimony, which was
generally supported by that of Menough and Sobnosky, or they could have chosen to
believe Correa and his alibi witnesses, his aunt and uncle, Sylvia and Terrence.
{¶62} There were credibility problems on both sides. Dawson had a lengthy
criminal record, was promised full immunity from prosecution in exchange for his
testimony and wrote a letter to Correa stating that he would not testify against him and
urging him not to worry because neither one of them had shot Cappelli. Correa also
had a criminal history, and completely denied being present when the murder took
place, despite testimony by Menough and Sobnosky that there was a second man
involved who generally fit Correa's description. Additionally, there are some
inconsistencies. Correa and Dawson both testified that the club closed around 2:00 or
2:30 a.m., but the murder occurred just after 4:00 a.m. There are also questions as to
how much alcohol Menough and Sobnosky consumed that night and their precise
descriptions of the suspects.
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{¶63} Based upon the totality of the evidence, these inconsistencies do not
render the verdict against the manifest weight. The jury did not lose its way in
convicting Correa of the charges. Rather, they reasonably weighed the evidence and
resolved the credibility issues against him. Accordingly, Correa's second and third
assignments of error are meritless.
Jury Instructions: Complicity
{¶64} Correa's fourth of five assignments of error asserts:
The trial court erred to the prejudice of the Appellant by giving an
instruction to the jury for complicity as an aider and abettor when the
evidence and testimony adduced at trial was contrary to the instruction
and in contradiction to the Appellee's theory of the case.
{¶65} Regarding jury instructions generally, a defendant is entitled to have the
trial court give complete and accurate jury instructions on all the issues raised by the
evidence. State v. Sneed, 63 Ohio St.3d 3, 9, 584 N.E.2d 1160 (1992). Applying an
abuse of discretion standard of review, State v. Wolons, 44 Ohio St.3d 64, 68, 541
N.E.2d 443 (1989), an appellate court must review the jury instructions as a whole in
determining whether the trial court properly charged the jury. State v. Burchfield, 66
Ohio St.3d 261, 262, 611 N.E.2d 819 (1993). Regarding Correa's specific challenge to
the jury instructions, "[a]lthough a defendant may be charged in an indictment as a
principal, the court may instruct the jury on complicity where the evidence at trial
reasonably supports a finding that the defendant was an aider or abettor." State v.
Ratkovich, 7th Dist. No. 02 JE 16, 2003-Ohio-7286, ¶10, citing State v. Gonzales, 151
Ohio App.3d 160, 178-179, 783 N.E.2d 903 (1st Dist.2002).
{¶66} Regarding the offenses of tampering with evidence and arson, Dawson
testified that after Correa shot Cappelli, Correa drove Cappelli's car back to Terrence's
house on Hunter Ave. Concerned about having Cappelli's vehicle in their possession,
Dawson and Correa decided to drive the vehicle back to where Cappelli was killed and
set it on fire. Dawson did not remember who started the fire.
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{¶67} Based on this testimony, the trial court did not err by instructing the jury
on complicity. The State presented evidence at trial that reasonably supported a
finding that Correa and Dawson were complicit in committing the crimes of tampering
with evidence and arson. Accordingly, Correa's fourth assignment of error is meritless.
Sentencing
{¶68} In his fifth and final assignment of error, Correa asserts:
The trial court erred to the prejudice of Appellant by sentencing him to
the maximum consecutive sentences for his convictions for aggravated
murder and aggravated robbery with firearm specifications and for
tampering with evidence and arson without properly considering Ohio
sentencing statutes pursuant to R.C. 2953.08(G)(C)(4).
{¶69} As initial matter, Correa was not sentenced to maximum sentences on
all counts as he contends. The maximum sentence for aggravated murder with no
aggravating circumstances specified in the indictment is life without parole. Correa
received a 25-years-to-life sentence. See R.C. 2903.01; R.C. 2929.03. Further, the
maximum sentence for arson is 18 months, and Correa was sentenced to one year.
See R.C. 2909.03(A)(1) and (B)(2)(b) and 2929.14(A)(4).
{¶70} R.C. 2929.14(C)(4) directs the trial court to make certain findings prior
to imposing consecutive sentences:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
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the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender's
conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶71} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16
N.E.3d 659, the Supreme Court of Ohio clarified that:
When imposing consecutive sentences, a trial court must state the
required findings as part of the sentencing hearing[.] * * * [T]he court
should also incorporate its statutory findings into the sentencing entry.
However, a word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial
court engaged in the correct analysis and can determine that the record
contains evidence to support the findings, consecutive sentences should
be upheld.
(Internal citations omitted.) Id. at ¶29.
{¶72} At the sentencing hearing, the trial court made the following findings:
I am going to find in order to protect the public and punish you - - and
additionally find that the sentences are not disproportionate, and that the
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harm was so great or unusual that a single term does not adequately
reflect the seriousness of your conduct - - that consecutive sentences
are necessary.
{¶73} The sentencing entry states:
This Court finds pursuant to R.C. 2929.14(C)(4) that consecutive
sentences are necessary to protect the public from future crime or to
punish the offender and (2) that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public, and at least two of the multiple
offenses were committed as part of one or more courses of conduct, and
the harm caused by two or more of the multiple offenses so committed
was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender's conduct, and the sentences in Counts
Two, Three and Four shall be served consecutively to each other and
consecutively to Count One, for a total sentence of FORTY-THREE (43)
YEARS to life.
{¶74} This is sufficient to comply with R.C. 2929.14(C)(4). Although the trial
court's findings were much briefer during the hearing, they are sufficient to support
consecutive sentences under subsection (b). Moreover, the trial court elaborated more
in its sentencing entry.
{¶75} Correa argues that the trial court herein "did little more than simply cut
and paste the requisite verbatim language set forth in R.C. 2929.14(C)(4)," and failed
to provide any specific reasons. However, a trial court need not give reasons in
support of its findings under R.C. 2929.14(C)(4). State v. Hanlin, 7th Dist. No. 13 JE
36B, 2014-Ohio-5719, ¶25; State v. Power, 7th Dist. No. 12 CO 14, 2013–Ohio–4254,
¶ 38.
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{¶76} Pursuant to Bonnell, this court must also determine whether the record
contains evidence in support of the trial court's findings. See Bonnell, supra, at ¶29.
Relevant here, the statute requires that: "the harm caused by two or more of the
multiple offenses so committed [be] so great or unusual that no single prison term for
any of the offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct[.]"R.C. 2929.14(C)(4)(b).
{¶77} Correa killed a man and attempted to cover up the crime by stealing the
victim's vehicle, returning it to the scene of the crime and then setting fire to it. The
record demonstrates that the trial court properly imposed consecutive sentences in
this case pursuant to R.C. 2929.14(C)(4). Accordingly, Correa's fifth assignment of
error is meritless.
{¶78} In sum, all of Correa's assignments of error are meritless. The trial court
did not abuse its discretion in denying Correa's motion for mistrial, Correa's convictions
are supported by sufficient evidence and are not against the weight of the evidence;
the trial court properly instructed the jury on complicity; and the trial court properly
imposed consecutive sentences. Accordingly, the judgment of the trial court is
affirmed.
Donofrio, PJ., concurs
Waite, J., concurs