State v. Agee , 2021 Ohio 489 ( 2021 )

[Cite as State v. Agee, 2021-Ohio-489.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-12
v. : (C.P.C. No. 16CR-1176)
Roshawn L. Agee, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 23, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P.
Walton.
On brief: Soroka and Associates, LLC, Roger Soroka, and
Joshua Bedtelyon, for appellant. Argued: Joshua
Bedtelyon.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Roshawn L. Agee, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of two
counts of felony murder with associated firearm specifications; guilty, pursuant to bench
verdict, of one count of having weapons while under disability; and determining him to be
a repeat violent offender. Finding no merit to the appeal, we affirm.
{¶ 2} By indictment filed March 3, 2016, plaintiff-appellee, State of Ohio, charged
appellant with two counts of aggravated murder in violation of R.C. 2903.01(A),
unspecified felonies, two counts of felony murder in violation of R.C. 2903.02(B),
No. 19AP-12 2
unspecified felonies, and one count of having weapons while under disability in violation of
R.C. 2923.13, a third-degree felony. The aggravated murder and felony murder charges
carried three-year firearm specifications in violation of R.C. 2941.145(A), repeat violent
offender specifications in violation of R.C. 2941.149(A), and criminal gang activity
specifications in violation of R.C. 2941.142(A). The charges arose from the shooting deaths
of Robert Bass and Cherod Houchins on July 28, 2014.1
{¶ 3} Appellant waived his right to a jury trial and elected to be tried by the court
on the having weapons while under disability count. The aggravated murder and felony
murder counts, along with the firearm and gang specifications, were tried to a jury.
Appellant was tried jointly with co-defendant Sophia Childs.2 The evidence presented at
trial relevant to this appeal establishes the following.
{¶ 4} In July 2014, four drug "trap" houses operated in the Stevens Avenue/Schultz
Avenue area on the near west side Columbus. Because the drug trade in the area was quite
profitable, there was significant competition among the trap houses. In addition, due to
the illegal and lucrative nature of the drug business, those operating the trap houses had
armed security at the doors; only persons known to security were permitted to enter and
purchase drugs.
{¶ 5} The two trap houses central to the present case were located within two
blocks of each other on Stevens Avenue. The trap house located at 189-R Stevens Avenue
("189-R Stevens") was operated by appellant and Childs, also known as "Fee." In addition
to their drug trafficking operation, Childs and appellant were in a personal relationship. It
is undisputed that at the time of the events at issue, appellant was imprisoned at Noble
Correctional Institution. Childs' associate, Clarence Pierce, also known as "Chicago,"
sometimes acted as security for the trap house. (Tr. at 459-60.) The second trap house,
located at 85 Stevens Avenue ("85 Stevens"), was rented by Calvin Clark and operated by
Dwayne Lewis, also known as "D," and Robert Earl Wilson, also known as "Boo Face."
Clark, D, and Boo Face are all bald, African American men.
1 Appellant's first trial, conducted in January 2018, resulted in a hung jury on the aggravated murder and
felony murder charges.
2 Childs was indicted for two counts of aggravated murder, two counts of felony murder, and one count of
having weapons while under disability. The aggravated murder and felony murder counts included firearm
specifications.
No. 19AP-12 3
{¶ 6} On July 26, 2014, Catherine Dudley ("Dudley"), an admitted long-time drug
user, was at 85 Stevens purchasing drugs from D. Childs entered the house and began
arguing with D about drug sales. At one point, Childs said she "didn't give a fuck" and would
"shut this motherfucker down and shoot up * * * this house." Id. at 473. Dudley returned
to 85 Stevens the next day and saw that the front window was broken and a brick was sitting
on the living room floor.
{¶ 7} On July 28, 2014, Dudley spent the entire day using drugs at both 189-R
Stevens and 85 Stevens. At approximately 9:00 p.m., she walked from 189-R Stevens to 85
Stevens. A person inside the house opened the back door for her; she had "no idea" who
did so. Id. at 607. Bass and Houchins were in the kitchen. Dudley requested drugs from
Bass, but before he could provide them, two men, both carrying guns, entered the kitchen
through the back door. Dudley did not know the men, did not open the door for them, did
not see anyone else open the door for them, and did not think the men forced their way
inside. One of the men wore a red shirt and immediately shot Bass in the head; the other
attempted to fire his gun but it jammed. Dudley exited through the back door and ran
toward 189-R Stevens. She heard multiple gunshots as she ran away.
{¶ 8} Dudley knocked on the door at 189-R Stevens; no one answered. She then
walked down the alley behind 189-R Stevens to a nearby garage and told the two men sitting
inside that she had just witnessed Bass get shot. Approximately 20 minutes after the
shooting, she saw Childs driving an SUV toward 189-R Stevens. Childs parked behind 189-
R Stevens and exited the vehicle along with the man in the red shirt Dudley had seen shoot
Bass. Shortly thereafter, Childs and the man carried several items from 189-R Stevens and
loaded them into the SUV.
{¶ 9} Dudley was arrested the next day on an outstanding misdemeanor warrant.
She agreed to tell the police what she had seen at the two Stevens Avenue trap houses on
July 28, 2014 in exchange for lifting the warrant. She did not tell the police that she had
witnessed an argument between Childs and D on July 26, 2014 because she did not think it
was related to the shooting. She did, however, tell the police that she thought "Chicago and
them * * * robbed the guys." Id. at 604. At trial, she explained that by "Chicago and them"
she meant Chicago and Childs; however, she conceded that she did not identify Childs by
name when questioned by the police. She further admitted that she did not see either
No. 19AP-12 4
Chicago or Childs at 85 Stevens at the time of the murders. On August 1, 2014, the police
showed Dudley photo arrays of possible suspects. She identified the man who had shot Bass
and the man whose gun had jammed. She told the police she did not know their names.
{¶ 10} On July 28, 2014, LaToya Galloway ("Galloway"), an admitted long-time drug
user with a lengthy criminal record, was using drugs at 189-R Stevens and overheard Childs
speaking on the phone to a person Galloway assumed was appellant. During the call, Childs
said "Okay. Okay. I'm going to shut the damn spot down." Id. at 843. Childs then left in
an SUV. Approximately 30 minutes later, Galloway heard gunshots outside. Childs
returned to 189-R Stevens five to six minutes after the shots were fired. Galloway observed
a "young dude" wearing a "red hoodie" with Childs. Id. at 847. Galloway described the man
as "paranoid. He was sweating a lot, walking around, peeking out the window." Id. at 848.
Childs and Galloway left 189-R Stevens for a brief time. When they returned, the man in
the red hoodie was still inside. Shortly thereafter, the three of them left in Childs' SUV.
During the drive, Childs and the man engaged in a heated conversation during which Childs
said, "You're stupid. I told you the bald-headed mother - - you just shot the wrong
motherfuckers. I told you to shoot the bald-headed dude. * * * You didn't kill the right
person." Id. at 855-56. After Childs dropped the man off, she and Galloway returned to
189-R Stevens.
{¶ 11} The next day, Galloway confronted Childs about the shooting at 85 Stevens.
Galloway was angry at Childs because two "innocent kids" had been killed. Childs
responded, "I don't give a fuck. They shot the wrong person." Id. at 858.
{¶ 12} Galloway did not contact the police after the murders because she did not feel
it was her business to do so. She first spoke to the police in July 2017 as a favor to Boo Face
(with whom she had a sexual relationship) regarding his involvement in a completely
separate criminal incident. She was unaware that she would be asked about the July 28,
2014 incident until the police began questioning her about it. She agreed to provide
information only if she would not be required to testify in court, as she did not want to be
labeled "a snitch" and was concerned about "retaliation" for testifying. Id. at 821, 823. She
was subpoenaed to testify, however, and did so, albeit unwillingly.
{¶ 13} On cross-examination, Galloway was impeached by testimony she provided
in appellant's first trial, i.e., that Childs did not return to 189-R Stevens for 30 to 45 minutes
No. 19AP-12 5
after the shots were fired. She also acknowledged her testimony in the first trial that she
told the police that she was at 85 Stevens during the shooting, that two "young dudes"
opened the door because they were "thirsty for money," and that the shooters began
shooting before they entered the house. She explained that she told police that "story"
because it was what she had heard "on the street." Id. at 892-93.
{¶ 14} Teresa Bass ("Ms. Bass"), an admitted long-time drug user, frequently
purchased and used drugs at 85 Stevens and was aware that Childs sold drugs on Stevens
Avenue. Late in the afternoon on July 28, 2014, she was with Calvin and others at 85
Stevens. She heard and observed Childs arguing with Calvin by the back door. An African
American man was with Childs. Childs told Calvin that "if she wanted to, she could shut
this house down, * * * and that she could shoot it up." Id. at 915.
{¶ 15} A few hours later, Ms. Bass saw Bass and Houchins in the kitchen of 85
Stevens acting as security and controlling drug sales. She and Calvin went into the
bedroom. Dudley entered the bedroom to retrieve a scale Bass needed to measure drugs.
After Dudley left, Ms. Bass heard gunshots coming from the kitchen. She and Calvin
entered the kitchen and saw Bass and Houchins on the floor; both had sustained gunshot
wounds. Dudley was not in the kitchen. Ms. Bass later provided a statement to the police
reporting what she had heard Childs say to Calvin. She acknowledged she was not
completely honest with the police because she was afraid of repercussions for her family.
She further acknowledged that a warrant issued for her arrest in a prior, unrelated
misdemeanor drug case had been lifted in exchange for her trial testimony; however, this
circumstance did not influence her testimony.
{¶ 16} Tina Legg ("Legg"), an admitted long-time drug user with a lengthy criminal
record, regularly purchased drugs from the trap houses on Stevens Avenue. On July 26,
2014, Legg witnessed a confrontation between Childs, Calvin, and D pertaining to the men's
refusal to allow Childs to sell drugs out of 85 Stevens. Childs was "pissed off, mad, [and]
angry" about the situation. Id. at 1123. Late in the evening on July 28, 2014, Legg and
Chicago were standing at an intersection near a lighted parking lot on West Broad Street
not far from Stevens Avenue. Childs, driving a dark SUV, stopped and asked Chicago if he
was "ready to go shoot the house up and take over the block," which Legg interpreted to
mean taking over the drug trade at 85 Stevens by force. Id. at 1129. Legg did not know if
No. 19AP-12 6
anyone else was in the SUV. Thereafter, Childs drove away; Chicago remained with Legg.
Five to ten minutes later, Legg saw several emergency vehicles drive toward Stevens
Avenue. She then observed Childs' SUV drive past where she was standing; she could not
see who was inside the vehicle.
{¶ 17} Columbus Police Officer Thomas Pierson was dispatched to 85 Stevens at
9:21 p.m. on July 28, 2014. According to Pierson, the radio dispatch indicated that two men
had been shot and that two potential suspects, both African American males, one wearing
tan pants, had been seen running northbound from the scene. Upon arrival, a man named
Calvin let Pierson inside the house. Pierson observed two men with gunshot wounds on the
kitchen floor. One of the men was positioned very near the closed back door; the other was
slumped against a wall. Pierson saw no signs of forced entry through the back door.
{¶ 18} Columbus Police Detective Suzanne Nissley of the Crime Scene Search Unit
("CSSU") responded to 85 Stevens after the murders. There were no signs of forced entry
into the house and there was no evidence of a burglary or robbery. No DNA or fingerprint
evidence was collected.
{¶ 19} Columbus Police Detective Timothy Huston works in the Central Intelligence
Unit ("CIU"), also known as the "gang unit." Id. at 1051. Pursuant to his investigation
following the murders on July 28, 2014, Huston developed two suspects–Antonio Rogers,
also known as "Mook," and Dionte Agee, also known as "D Money." Id. at 1059. D Money
was appellant's brother; Mook was a known associate of appellant and was part of the drug
operation appellant ran on the west side of Columbus. On July 31, 2014, three days after
the 85 Stevens murders, D Money and his girlfriend were fatally shot. Huston, aware that
appellant was in prison and based on a belief that appellant had been apprised of his
brother's murder, obtained a subpoena for prison call records made by appellant between
July 18 and August 1, 2014. Pursuant to that subpoena, the prison provided Huston a digital
recording of the calls. At that time, Huston did not consider either appellant or Childs as
suspects in the murders.
{¶ 20} Huston assigned a patrol officer, Wesley Williams, to review and create a
summary of the calls. Williams had little training or experience in gang matters and/or
trap house operations and was unfamiliar with street and/or gang language. The summary
Williams provided Huston indicated that he overheard a conversation between Childs and
No. 19AP-12 7
appellant planning the double murder at 85 Stevens. Thereafter, Huston listened to the
recorded prison calls and determined that "[i]t sounded like somebody was planning a
murder, planning ahead basically, or actually planning to go in there and kill D." Id. at
1065. Huston put the calls relevant to the July 28, 2014 murders on a disk and submitted
it to the lead detective in the case.
{¶ 21} At the time of the murders, Columbus Police Officer Robert Vass worked in
the CIU division.3 Vass was familiar with the drug trade on Stevens Avenue, including the
trap houses at 85 Stevens and 189-R Stevens. Pursuant to his CIU investigations, Vass had
numerous encounters with appellant.
{¶ 22} Following the July 28, 2014 murders, Vass reviewed Williams' summary of
appellant's prison phone calls. Vass acknowledged that because Williams was not familiar
with gang and/or street terminology, the summary he prepared was not completely
accurate. In contrast, through his work with CIU, Vass was extremely knowledgeable about
gang and drug trafficking matters, including gang and street lexicon. Accordingly, Vass
listened to the recordings of the prison calls and corrected Williams' summary in
accordance with his more accurate interpretations.4 Because the recordings were difficult
to understand, Vass utilized headphones and listened to the recordings multiple times to
determine, to the best of his ability, what was being said. From his previous interactions
with appellant, Vass was able to recognize appellant's voice on the recordings. Vass noted
that during the calls, appellant sometimes referred to himself as "Skeeno," a nickname he
utilized both on the street and on his social media accounts.
{¶ 23} Vass's translation and interpretation of the prison calls establishes the
following.5 At 7:38 p.m. on July 28, 2014, appellant called Childs on her cell phone. Childs
reported the argument she had with D at 85 Stevens, which resulted in her later "bust[ing]
3 At the time of trial, Vass was working as a SWAT officer.
4 Vass identified State's Ex. W12, the summary of the recorded prison calls, and referred to it during his
testimony. However, State's Ex. W12 was not offered for admission by the state. Id. at 1292 (identified); Id.
at 1550 (not offered). Vass also identified State's Ex. W13, the transcripts of the recorded prison calls, and
referenced them during his testimony. However, the trial court sustained appellant's objection to the
admission of State's Ex. W13. Id. at 1296 (identified); Id. at 1556 (objection sustained). Accordingly, neither
State's Ex. W12 nor State's Ex. W13 are part of the appellate record.
5 State's Ex. B2, the audio recording of appellant's prison calls, was played for the jury during Vass's
testimony. State's Ex. B2 was admitted into evidence and is part of the appellate record.
No. 19AP-12 8
out" a window. Id. at 1302. Childs told appellant that D nearly assaulted her during the
argument. Appellant responded that he "needs to call his dudes6 real quick." Id. at 1303.
Appellant further averred that his "little brother" was waiting for him to call so that Childs
could "go get him and he can blow over there with you." Id. at 1305. Appellant stated that
his "little brother" was "Team AB," and he's - - if he's in it for me, he's in it for you." Id. at
1308. Vass explained that "AB" was a "gang term" for appellant. Id.
{¶ 24} Childs responded, "[Y]eah, I was mad as fuck. He really wanted to hit me and
everything * * * though I ain't going to let him * * * get all up in my face." Id. at 1306. Childs
also reported that Chicago had been afraid to accompany her to Calvin's house because D
had stated he was going to "fuck Chicago up." Id. at 1310. Childs later said, "Yeah, that was
all silent, like that's D's house for real," to which appellant responded, "I would have turned
all the way up over there, man." Id. at 1311. According to Vass, the phrase "turned up"
meant "to get violent, go crazy, tear the place up." Id. Childs stated that Calvin was mad at
her for breaking the window and that she might have to move if she did not pay for it.
Appellant averred that "Chicago should have went over there with you and went on 20." Id.
at 1313. Vass interpreted this to mean that Chicago should have "go[ne] off big time." Id.
{¶ 25} Later in the call, appellant told Childs to call 614-813-1911, ask for "Rob," and
tell him "Skeeno [is] on the phone for him." Id. at 1314. There were some difficulties with
Childs getting Rob on the phone, so appellant had her initiate a three-way call with him.
During the three-way call, appellant initially conversed with an unidentified man, who told
appellant that he was playing basketball and that "[w]hen I'm done shooting basketball,
you know what I'm gonna do? I'm gonna shoot dudes, that's what I do." Id. at 1317.
Appellant then asked for Rob and was told he was on the east side of the city. Appellant
told the man to call Childs and that she would come and get him.
{¶ 26} At 7:56 p.m. on July 28, 2014, appellant called 614-813-1911 and averred to
the unidentified man who answered, "I need you and my B to fly out west with my bitch
real quick, man." Id. at 1319. He continued, "And this is going - - and this is after you do
that dude, like, you go right to the next street * * * and get your bag off." According to Vass,
"bag off" meant "[g]et a bag of dope." Id. at 1320. Appellant then said, "Out west on
Stevens, it's a geek, bro." Id. at 1321. Vass translated "geek" to mean a drug addict.
6 Vass substituted the term "dude" for racial slurs utilized by appellant.
No. 19AP-12 9
Appellant continued, "Do shit on Stevens. * * * [W]hen somebody do open the door * * *,
it's this bald-headed geek motherfucker. But she gonna let him know * * * that she ain't no
tuck her tail in and she ain't about to run to the car or none of that. She's going to be there
right with you." Id. at 1321-22.
{¶ 27} Appellant then told the man, "if you're in good graces with the queen, then
she's going to get you even more dope to sell so you can make more money." Id. at 1322.
He instructed the man to take his "bang" with him. Id. at 1323. Vass testified that "bang"
is a street term for a gun. Id. Appellant then stated he was going to hang up so he could
call Childs and "hook up with you." Id. at 1324.
{¶ 28} At 8:06 p.m. on July 28, 2014, appellant called Childs and reported, "My
young dude man, he in the car with my other young dude. * * * Rob will be more or less like
the muscle * * * after he do what he do." Id. at 1325. Childs responded, "Yeah, I don't think
D is there, but his son is there." Id. at 1326. The two also discussed the fact that Boo Face
was not at 85 Stevens. Appellant stated, "I just got off the phone with the young dude * * *.
He ridin' around with absolutely nothin' to do * * * and he's out on bond. So I'm like, listen,
bro, I need you to * * * do something for me. And he like, oh, shit, bro, I got the strap on
me." Id. at 1327. According to Vass, "strap" is a street name for a gun. Later in the call,
Childs said, "And Calvin, he had to get that done because it's his house," to which appellant
responded, "Well, after tonight, it won't be nobody's house." Id. at 1328. Childs responded,
"[w]ell bro, we need all the money anyway, so fuck them." Id.
{¶ 29} Appellant told Childs he wanted Rob to stay with her. "Rob is my
motherfucking left hand. * * * You can trust him though, babe, for sure. He ain't nothing
like no other dude from around my way * * *. But we about to use these two young dudes.
I need you to go get Rob for sure. I need you to call." Id. at 1329. Childs responded, "I am,
babe. I'm going to get him as soon as I get * * * on the street * * *." Id. at 1330. Appellant
told Childs to park on Schultz Avenue (one street over from Stevens) and "then walk
through the cut," which, according to Vass, meant "between the houses." Id. Appellant
averred, "[W]e're gonna make all this happen real fast, man, 'cause the motherfucker has
got to know that, for every action, there is a reaction * * *." He also told Childs that the man
would "have his bang on him." Id. at 1331. Appellant told Childs "I'm trying to be in the
car with you." Id. at 1333. Appellant directed Childs where to pick up the men and then
No. 19AP-12 10
said, "I ain't about to hang up yet, I want to make sure you all get in the car together." Id.
Appellant told Childs he would call her later and that she should "[b]e careful." Id. at 1334.
{¶ 30} At 10:14 p.m. on July 28, 2014, appellant called Childs and asked her
"[w]hat'd you get accomplished?" Id. at 1335. She responded that she would see appellant
on her next visit. Appellant then asked, "Did they go over there?" Id. After some hesitation,
Childs responded, "I'll talk to you." Id. Appellant then said, "Just say yes or no. That's all
you gotta say." Id. Childs responded, "No, they did not, no." Id. Later during the call,
appellant said, "I'm gonna kick D's ass when I get out. Don't worry about it * * *. " Id. at
1337. Childs responded, "I don't even want to talk about them." Id. Later in the call, Childs
said, "I wish you could see the news though." Id. at 1340. Appellant stated, "I know. What's
on the news? What happened? * * * Somebody get killed?" Id. at 1341. Childs replied, "I'll
tell you when I visit." Id. Appellant then asked "Did somebody get robbed?" Id. at 1342.
Childs responded, "Babe, no." Id.
{¶ 31} Columbus Police Detective James Howe, a digital forensics expert, analyzed
phone records associated with Childs' cell phone number, appellant's prison personal
identification number, and the 614-813-1911 cell phone number. The 614-813-1911 number
was linked to a TracFone wireless company; accordingly, Howe could not determine the
identity of the person associated with that number.
{¶ 32} Howe also performed a historical cell-site analysis of Childs' cell phone and
the cell phone associated with the 614-813-1911 number. That analysis revealed that both
cell phones "pinged" on cell phone towers in the "general location" of 85 Stevens in the hour
preceding and following the murders on July 28, 2014. Id. at 1453-54.
{¶ 33} On the evidence before it, the jury returned verdicts finding appellant guilty
of the felony murder charges with the firearm specifications, but not guilty of the
aggravated murder charges and all the gang specifications.7 The trial court later found
appellant guilty of having weapons while under disability8 and determined appellant to be
7 The jury acquitted Childs of the two aggravated murder counts but was unable to reach a unanimous
verdict as to the two felony murder counts. Accordingly, the trial court declared a mistrial as to those
counts.
8 The trial court also found Childs guilty of having weapons under disability.
No. 19AP-12 11
a repeat violent offender. The trial court sentenced appellant to an aggregate prison term
of 27 years to life.
{¶ 34} In a timely appeal, appellant asserts the following two assignments of error
for our review:
[I.] Appellant's conviction was based on insufficient evidence.
[II.] Appellant's conviction was against the manifest weight
of the evidence.
{¶ 35} Appellant's first and second assignments of error are interrelated and will be
considered together. Appellant contends that his convictions for felony murder and having
weapons while under disability were not supported by sufficient evidence and were against
the manifest weight of the evidence. We disagree.
{¶ 36} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380(1997), paragraph two of the syllabus. "An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus. "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."
Id., following Jackson v. Virgina, 443 U.S. 307 (1979).
{¶ 37} Whether the evidence is legally sufficient to support a criminal conviction is
a question of law, not fact. Thompkins at 386. "Indeed, in determining the sufficiency of
the evidence, an appellate court must give 'full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.' " State v. Parks, 10th Dist. No. 09AP-810,
2010-Ohio-2105, ¶ 7, quoting Jackson at 319. "Consequently, the weight of the evidence
and the credibility of the witnesses are issues primarily determined by the trier of fact." Id.,citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79. "A verdict will not be
disturbed unless, after viewing the evidence in the light most favorable to the prosecution,
No. 19AP-12 12
it is apparent that reasonable minds could not reach the conclusion reached by the trier
of fact." Id., citing State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
{¶ 38} In contrast, a manifest weight of the evidence claim requires a different
analysis. "The weight 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."
State v. Brindley, 10th Dist. No. 01AP-926, 2002-Ohio-2425, ¶ 35, citing State v. Gray,
10th Dist. No. 99AP-666 (Mar. 28, 2000); State v. Chandler, 10th Dist. No. 05AP-415,
2006-Ohio-2070, ¶ 8. When presented with a challenge to the manifest weight of the
evidence, an appellate court " 'review[s] the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines 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 (1stDist.1983). An
appellate court should reserve reversal of a conviction as being against the manifest
weight of the evidence for only the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Id.{¶ 39} Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis, i.e., a finding that a
conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15,
citing State v. Roberts, 9th Dist. No. 96CA006462 (Sept. 17, 1997). "[T]hus, a
determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency." Id. Accordingly, we must first examine whether
appellant's convictions are supported by the manifest weight of the evidence. State v.
Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285, ¶ 89.
{¶ 40} In this case, appellant was prosecuted for felony murder under a theory of
complicity. The elements of felony murder are set forth in R.C. 2903.02(B), which states
in relevant part that "[n]o person shall cause the death of another as a proximate result
of the offender's committing or attempting to commit an offense of violence that is a
felony of the first or second degree." The predicate offense of violence charged in the
indictment is felonious assault pursuant to R.C. 2903.11. R.C. 2903.11(A)(2) provides in
No. 19AP-12 13
pertinent part that "[n]o person shall knowingly * * * [c]ause or attempt to cause physical
harm to another * * * by means of a deadly weapon." A person acts knowingly, regardless
of purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist. R.C. 2901.22(B). It is undisputed that Bass
and Houchins suffered fatal gunshot wounds.
{¶ 41} Ohio's complicity statute, R.C. 2923.03, provides in pertinent part that
"[n]o person, acting with the kind of culpability required for the commission of the
offense, shall * * * [a]id or abet another in committing the offense." R.C. 2923.03(A)(2).
When an individual acts to aid or abet a principal in the commission of an offense, the
individual and principal are equally guilty and the individual is prosecuted and punished
as if he were a principal offender. R.C. 2923.03(F). The statute further states that "[i]t is
no defense to a charge under this section that no person with whom the accused was in
complicity has been convicted as a principal offender." R.C. 2923.03(B).
{¶ 42} To prove complicity by aiding and abetting under R.C. 2923.02(A)(2), the
evidence must demonstrate 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), syllabus. Such intent may be inferred from the circumstances
surrounding the crime. Id. " '[P]articipation in criminal intent may be inferred from
presence, companionship and conduct before and after the offense is committed.' " Id. at
245, quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971). A common purpose
among persons to commit a crime need not be shown by positive evidence but may be
inferred from circumstances surrounding the act and from the defendant's subsequent
conduct. State v. Gonzalez, 10th Dist. No. 10AP-628, 2011-Ohio-1193, ¶ 25, citing Pruett.
Further, "[t]the identity of the principal is not an element that the state must prove to
establish the offense of complicity by aiding and abetting pursuant to R.C.
2923.03(A)(2)." In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, paragraph one of the
syllabus.
{¶ 43} Moreover, "when a person sets in motion a 'sequence of events, the
foreseeable consequences of which were known or should have been known to him at the
No. 19AP-12 14
time, he is criminally liable for the direct, proximate and inevitable consequences of death
resulting from his original act.' " State v. Hubbard, 8th Dist. No. 83389, 2004-Ohio-
5204, ¶ 40, quoting State v. Williams, 67 Ohio App.3d 677, 683 (8th Dist.1990). "It is not
necessary that the accused be in a position to foresee the precise consequence of [his]
conduct; only that the consequences be foreseeable in the sense that what actually
transpired was natural and logical in that it was within the scope of the risk created by
[his] conduct." Id., citing State v. Losey, 23 Ohio App.3d 93, 95-96 (10th Dist.1985).
{¶ 44} Here, competent, credible evidence presented at trial permitted a
reasonable jury to conclude that appellant was complicit in the murders of Bass and
Houchins. Appellant and Childs operated a trap house at 189-R Stevens that was in
competition for drug sales with the trap house operated by Calvin, D, and Boo Face at 85
Stevens. Two days before the murders, Childs argued with D about drug sales and
threatened to "shoot up" 85 Stevens. During a 7:38 p.m. phone call on the night of the
murders, Childs told appellant about the argument with D and averred that he had nearly
assaulted her. Appellant indicated that he would have gotten violent with D had he been
present. Appellant told Childs that he was going to call an associate and inform him that
Childs was going to pick him up and take him to 85 Stevens. Appellant also directed
Childs to initiate a three-way call with 614-813-1911; during that call, appellant told the
man who answered to call Childs.
{¶ 45} A few minutes later, at 7:56 p.m., appellant called the 614-813-1911 number
and told the man who answered that he needed him to accompany Childs and "do shit"
on Stevens Avenue. Appellant told the man that at least one of the occupants of 85
Stevens was "bald-headed." As noted above, those involved in operating the trap house
at 85 Stevens, i.e., Calvin, D, and Boo Face, were all bald. Appellant directed the
individual to bring a firearm with him. Appellant told the man that if he accomplished
the task, he would be in Childs' "good graces," who would then provide him more drugs
to sell so he could make more money. Appellant then told the man that Childs would get
in touch with him.
{¶ 46} Soon after that call ended, appellant called Childs and reported what he had
directed the man to do. When Childs mentioned Calvin's house, appellant responded that
"after tonight, it won't be nobody's house." Appellant further averred that D had to know
No. 19AP-12 15
that "for every action, there is a reaction." Appellant also told Childs that the men she
was to pick up would have guns on them. He directed Childs where to pick up the men,
to park on Schultz Avenue, and to walk to 85 Stevens between the houses. Appellant
referred to the men as "Team AB" and averred that they were "in it" for both him and
Childs. He told Childs that he "wanted to be in the car" with her and that he did not want
to hang up until he was sure she and the men were all in the car together. It is undisputed
that the shootings at 85 Stevens occurred within an hour and a half of this phone call, at
approximately 9:20 p.m.
{¶ 47} The jury reasonably could conclude that this evidence established that
appellant "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." Johnson, 93 Ohio St.3d 240 (2001), syllabus. As observed by the
state, appellant's statements in the three phone calls preceding the murders indicate that
he was angry at those operating the trap house at 85 Stevens and sent his associates there
to ensure that those individuals would no longer be selling drugs from that location.
{¶ 48} Indeed, appellant set in motion the sequence of events that led to the deaths
of Bass and Houchins. Even if appellant did not specifically direct the men to murder
Bass and Houchins, or could not foresee the murders as the precise consequences of his
actions, the murders were foreseeable in the sense that what actually transpired was the
natural and logical result of appellant's actions in enlisting the men to accompany Childs
to the location she had expressed a desire to "shoot up" and directing them to take
firearms with them.
{¶ 49} Appellant sets forth several arguments challenging the manifest weight of
the evidence underlying his convictions. Appellant first contends that the jury was not
required to accept as true the incredible, that is, that he was "somehow able to convince
other individuals to murder on his behalf despite being confined to prison with no ability
to exert such influence." (Appellant's Brief at 35.) Appellant asserts that the evidence of
his communications with the shooters "is devoid of any rationale of why someone may
accept this risk on his behalf." There is no offer of profit, physical threats, or any other
potential consequences for noncompliance." Id. at 36. Appellant's contention is belied
by his 7:56 p.m. phone call on July 28, 2014, wherein appellant told his associate that if
No. 19AP-12 16
he did what he was being asked to do, he would be in Childs' "good graces," resulting in
him receiving more drugs to sell. Appellant's statement demonstrates that he was offering
his associate something of value in exchange for solving the problem appellant had with
those operating the competing trap house at 85 Stevens.
{¶ 50} Appellant also contends that appellant's acquittal on the aggravated murder
charges and the gang specifications confirms that appellant was not involved in the
murders. We disagree. The jury reasonably could conclude that even if the evidence did
not establish beyond a reasonable doubt that appellant "purposely and with prior
calculation and design" caused the deaths of the victims pursuant to R.C. 2903.01(A) via
criminal gang activity, the evidence established that appellant aided and abetted the
principals, whether gang members or simply associates of appellant, in committing
felonious assault with a deadly weapon which resulted in the victims' deaths.
{¶ 51} Appellant further argues that his convictions were against the manifest
weight of the evidence because the prison phone calls establish that both appellant and
Childs knew that neither D nor Boo Face would be present at 85 Stevens. Again, we
disagree. The jury reasonably could conclude that appellant aided and abetted the
principals in committing felonious assault at 85 Stevens in order to shut down the
competition, regardless of whether D and/or Boo Face were present.
{¶ 52} Appellant also challenges as incredible and unreliable the testimony offered
by Dudley, Galloway, Ms. Bass, and Legg. Appellant argues that these witnesses lacked
credibility and that their testimony was unreliable based upon their history of drug usage
and their admitted drug use during the timeframe encompassing the murders. Appellant
also contends that their testimony was impeached, internally and externally
contradictory, internally inconsistent, or self-serving.
{¶ 53} The jury was well-aware of these witnesses' drug usage, lifestyles, criminal
past, and reasons for testifying. Further, the jury heard the testimony appellant now
challenges, which, we note, was subject to cross-examination. A decision on the
credibility of the witnesses made by a factfinder, such as a jury, is given great deference
by a reviewing court. State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037,
¶ 28. The weight to be given the evidence, as well as the credibility of the witnesses, are
issues which are primarily to be determined by the trier of fact. State v. Hairston, 10th
No. 19AP-12 17
Dist. No. 05AP-366, 2006-Ohio-1644, ¶ 20, citing State v. DeHass, 10 Ohio St.2d 230(1967). The jury is in the best position to take into account inconsistences in witness
testimony, along with the witnesses' manner and demeanor, and determine whether the
witnesses' testimony is credible. State v. Chandler, 10th Dist. No. 05AP-415, 2006-Ohio-
2070, ¶ 9, citing State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58. A
jury, as the finder of fact and the sole judge of the weight of the evidence and the credibility
of the witnesses, may believe or disbelieve all, part, or none of a witness's testimony. State
v. Antill, 176 Ohio St. 61, 67 (1964); State v. Jackson, 10th Dist. No. 01AP-973, 2002-
Ohio-1257. "While the jury may take note of the inconsistencies and resolve or discount
them accordingly, * * * such inconsistencies do not render [a] defendant's conviction
against the manifest weight of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996).
{¶ 54} Appellant also contends that his convictions were against the manifest weight
of the evidence because the prosecution failed to prove who committed the murders.
Appellant acknowledges that the prosecution was not required to prove the identities of the
principals to establish his guilt under a theory of complicity. However, appellant contends
that the prosecution relied upon the impermissible stacking of inferences to tie him to the
principals.
{¶ 55} "The rule prohibiting the stacking of one inference upon another prohibits
the drawing of one inference solely and entirely from another inference, where that
inference is unsupported by any additional facts or inferences drawn from other facts."
(Citations omitted.) State v. Ingram, 10th Dist. No. 11AP-1124, 2012-Ohio-4075, ¶ 23.
"Although inferences cannot be built upon inferences, several conclusions may be drawn
from the same set of facts." (Citations omitted.) Id. "Because reasonable inferences
drawn from the evidence are an essential element of the deductive reasoning process by
which most successful claims are proven, the rule against stacking inferences must be
strictly limited to inferences drawn exclusively from other inferences." (Citations
omitted.) Id.{¶ 56} Appellant claims that the jury was required to stack the following three
inferences to find him guilty of complicity: (1) that he "ordered, or gave instruction to his
co-defendant and unknown assailants to commit the crime of felonious assault or murder,"
No. 19AP-12 18
(2) that the "unknown shooters acted in complicity with Appellant or under the Appellant's
direction, and (3) that he "either aided and abetted the princip[al] offenders." (Appellant's
Brief at 19-20.) These are not three separate inferences stacked upon one another; rather,
there is one single inference, phrased by appellant in three different ways. The single
inference, that appellant aided and abetted the principals in committing felony murder, is
a conclusion that can be drawn from the evidence presented, particularly the prison calls
wherein appellant communicated to the principals that he wanted them to arm themselves
and travel to 85 Stevens.
{¶ 57} Appellant also contends that his liability for murder via a theory of complicity
"flowed through Childs['] involvement in the alleged offen[s]e and was directly tied to a
theory of complicity with Childs." Id. at 39. According to appellant, the jury's inability to
reach a verdict as to Childs' guilt rendered his conviction against the manifest weight of the
evidence. Indeed, appellant asserts that "Ms. Childs also being found guilty of murder is
the only possible way the State's presented theory holds up for certainty that Mr. Agee was
guilty of these offenses." Id. at 39-40. We disagree. Although the evidence demonstrates
that Childs was involved in the events leading to the murders, appellant's liability via
complicity was independent from that of Childs. The evidence demonstrates that appellant
spoke directly to at least one of the principals during the 7:38 p.m. call with Childs and then
called that person directly at 8:06 p.m., without Childs' involvement. In both calls,
appellant urged the principals to act. Accordingly, the failure to convict Childs did not, ipso
facto, render appellant's conviction against the manifest weight of the evidence.
{¶ 58} Further, even assuming that the verdicts finding appellant guilty and
acquitting Childs were inconsistent, inconsistent verdicts between co-defendants does not
constitute a sufficient reason for reversing a conviction. State v. Hill, 8th Dist. No. 99819,
2014-Ohio-387, ¶ 33, citing State v. Eppard, 6th Dist. No. CL 05-1279, 2007-Ohio-2257,
¶ 16.
{¶ 59} In light of the evidence presented at trial, we cannot say that the jury clearly
lost its way in finding appellant guilty of two counts of felony murder. We re-emphasize
that the weight of the evidence and the credibility of the witnesses are matters primarily for
the jury. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury heard
the testimony provided by the witnesses familiar with what transpired both in the days
No. 19AP-12 19
preceding the murders and at the actual time of the murders. The jury also heard the audio
recordings of the prison calls, along with Vass's translations and interpretations of those
calls. Following evaluation of this evidence, the jury reasonably could conclude that
appellant aided or abetted the actions of the individuals who fired deadly weapons inside
the 85 Stevens trap house, and that such actions caused the deaths of Bass and Houchins.
Accordingly, we conclude that appellant's felony murder convictions are not against the
manifest weight of the evidence.
{¶ 60} We now consider appellant's manifest weight/sufficiency arguments
regarding his conviction for having weapons under disability. R.C. 2923.13(A)(2)
provides, in relevant part, that "[u]nless relieved from disability under operation of law
or legal process, no person shall knowingly acquire, have, carry, or use any firearm * * *
if * * * [t]he person * * * has been convicted of any felony offense of violence." The parties
stipulated that appellant had a previous disqualifying conviction. A stipulation that a
defendant has a prior felony offense of violence conviction "relieve[s] the state of its
burden of proving the prior conviction element of the weapons-under-disability charge."
State v. McLaughlin, 12th Dist. No. CA2019-02-002, 2020-Ohio-969, ¶ 56.
{¶ 61} In finding appellant guilty of having weapons under disability, the trial
court stated:
I find * * * each defendant guilty of * * * having weapons under
disability. I believe the evidence indicated beyond a
reasonable doubt that they both were involved in the
conspiracy to commit murder and that the co-conspirators
who carried out the homicides were armed with firearms.
And based on the case law that the State provided the Court
about three or four weeks ago, the defendants can be guilty of
weapons under disability based on their own disabilities, plus
the possession of the firearm by other principal offenders.
Even though we don't know who they are, we know a firearm
was used. And, as I said, I believe beyond a reasonable doubt
that they conspired with the people who used the firearms. So
the finding is guilty on the weapons under disability for both
of them.
(Tr. at 1874-75.)
No. 19AP-12 20
{¶ 62} Appellant first contends that R.C. 2923.01, the conspiracy statute, "does not
allow the prosecution of a Weapons Under Disability charge or a Felonious Assault charge
through a theory of conspiracy." (Appellant's Brief at 29.) Appellant's conspiracy
argument is misplaced. As with the felony murder prosecution, appellant was prosecuted
for having weapons under disability under a theory of complicity, not conspiracy.
Although the trial court, after finding appellant guilty, referenced a "conspiracy," the
sentencing entry clearly states that appellant was found guilty of having weapons while
under disability in violation of R.C. 2923.13, not conspiracy in violation of R.C. 2923.01.
A court speaks through its journal and not mere oral pronouncements. State v. Hampton,
134 Ohio St.3d 447, 2012-Ohio-5688, ¶ 15.
{¶ 63} Appellant further contends that the evidence fails to support the trial court's
finding of guilt because "[t]here was no testimony offered that Appellant ever possessed
a gun on the date in question, or even that he had constructive possession of any firearm
on the date in question." (Appellant's Brief at 29.) It is undisputed that appellant was in
prison at the time of the murders; thus, he did not acquire, carry, or use a firearm.
Accordingly, the issue resolves to whether appellant knowingly "had" a firearm.
{¶ 64} This court discussed this issue in State v. Ridley, 10th Dist. No. 03AP-1204,
2005-Ohio-333:
In order to "have" a firearm, one must either actually or
constructively possess it. State v. Hardy (1978), 60 Ohio App.
2d 325, 327, 397 N.E.2d 773; State v. Messer (1995), 107 Ohio
App. 3d 51, 56, 667 N.E.2d 1022. "Constructive possession
exists when an individual exercises dominion and control over
an object, even though that object may not be within his
immediate physical possession." State v. Wolery (1976), 46
Ohio St. 2d 316, 329, 348 N.E.2d 351 * * *. Constructive
possession may also be achieved by means of an agent. Hardy,
at 327; U.S. v. Clemis (C.A.6, 1993), 11 F.3d 597 * * *
(constructive possession of a firearm exists when a defendant
knowingly has the power and intention at any given time to
exercise dominion and control over a firearm, either directly or
through others). Moreover, we recognize that constructive
possession of a weapon, even absent actual physical
possession, may be established by a totality of evidence
establishing an accomplice relationship between the physical
possessor and his or her accomplice. State v. McConnell
(Oct. 13, 1983), Cuyahoga App. No. 45294, 1983 Ohio App.
LEXIS 13756.
No. 19AP-12 21
Id. at ¶ 18.
{¶ 65} In State v. Dalmida, 1st Dist. No. C-140517, 2015-Ohio-4995, the court held
that an accomplice can be convicted of having weapons under disability without holding
the firearm if that accomplice aided and abetted the person who actually possessed and
brandished the firearm. Id. at ¶ 16. "The accomplice can have constructive possession of
the firearm by exercising dominion and control through another." Id. The court further
held that a nonshooting accomplice can be convicted for having weapons under disability
based on that accomplice's disability, not the disability of the shooter. Id. In other words,
an accomplice can constructively possess a firearm by exercising dominion and control over
another who does possess the firearm. Id.
{¶ 66} Recently, the Sixth District Court of Appeals affirmed a defendant's
conviction for having weapons under disability in violation of R.C. 2923.13(A)(2), finding
that while he was in prison, he constructively possessed a weapon found in his girlfriend's
home. State v. Brooks, 6th Dist. No. WD-19-077, 2020-Ohio-6648. During prison calls
with his girlfriend, Brooks directed her to put his firearm in the safe he kept in her house.
A few days later, the police executed a search warrant at the girlfriend's residence and found
the firearm. At trial, Brooks stipulated that he was under a qualifying disability and was
prohibited from possessing a firearm.
{¶ 67} Due to the stipulation, the court found the only relevant question was
whether Brooks "had" the firearm while he was in prison and the firearm was with his
girlfriend. Id. at ¶ 11. The court concluded that "[a]lthough the gun was not within [Brooks]
immediate physical possession as of April 13, 2018 [when it was discovered pursuant to the
search warrant], a reasonable fact finder could conclude that [Brooks] exercised dominion
and control over the gun as of that date so as to regain actual possession of the gun upon
his release from jail, and therefore possessed the gun beyond a reasonable doubt." Id. at
¶ 14.
{¶ 68} As we explained above, appellant's convictions for felony murder were not
against the manifest weight of the evidence because the evidence established that
appellant aided and abetted those who actually possessed and fired the weapon.
Although appellant was in prison and it was his associates who actually used a firearm to
commit the murders, the phone calls initiated by appellant establish that appellant
No. 19AP-12 22
directed those associates to take firearms with them to 85 Stevens. Even absent
appellant's physical possession of the firearm and physical presence at the crime scene,
appellant constructively possessed the firearm through those that physically possessed it.
In other words, appellant constructively possessed a firearm by exercising dominion and
control over those who did possess the firearm. Ridley; Dalmida; Brooks.
{¶ 69} Moreover, we note that the jury, in rendering its guilty verdicts on the felony
murder counts, approved the accompanying firearm specifications, finding that appellant
"act[ed] with another who had a firearm on or about his person or under his control while
committing the offense and did display and/or brandish and/or indicate that he did
possess the firearm and/or used the firearm to facilitate the offense." (Tr. at 1828.) "[T]he
Ohio Supreme Court has held that [an accused] is subject to a sentencing enhancement
on a firearm specification regardless of whether he was the principal or an unarmed
accomplice." State v. Humphries, 8th Dist. No. 99924, 2014-Ohio-1230, ¶ 18, citing State
v. Chapman, 21 Ohio St.3d 41, 42 (1986). "In such a case, the actions of the principal are
imputed to the accomplice, and the accomplice may be found to have committed every
element of the offense committed by the principal, including possession of the weapon."
Id., citing State v. Frost, 164 Ohio App.3d 61, 67, 2005-Ohio-5510 (2d Dist). Thus, the
jury's finding that the principals "had" a firearm on or about their persons or under their
control while committing the offenses may be imputed to appellant for purposes of the
sentencing enhancement on the firearm specification and is consistent with the trial
court's finding of guilt on having weapons under disability based upon "the possession of
a firearm by other principal offenders." (Tr. at 1874.)
{¶ 70} For the foregoing reasons, we conclude that there was competent, credible
evidence supporting the trial court's finding of guilt for having weapons while under
disability, and his conviction for that offense was not against the manifest weight of the
evidence.
{¶ 71} Our determination that appellant's convictions were not against the manifest
weight of the evidence is dispositive of appellant's claim that his convictions were not
supported by sufficient evidence. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15.
Accordingly, appellant's first and second assignments of error are overruled.
No. 19AP-12 23
{¶ 72} Having overruled appellant's first and second assignments of error, we
hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and BEATTY BLUNT, JJ., concur.