State v. Richardson , 103 Ohio App. 3d 21 ( 1995 )

I respectfully dissent from the majority's disposition of appellant's first and second assignments of error. For the reasons that follow, I would affirm the judgment entered in accordance with the jury's verdict finding appellant guilty of aggravated murder.

In State v. Allen (May 25, 1994), Hamilton App. Nos. C-930159, C-930160, unreported, 1994 WL 201828, this court found sufficient evidence upon which the jury could find prior calculation and design. In that case, Retha Crutchfield, the victim, saw appellant, her son-in-law, waiting outside her apartment and went out to the curb to tell him to leave. Appellant did not go home. Instead, he moved his car farther down the street and then entered Mrs. Crutchfield's apartment with an iron weight-lifting bar tucked into his pants. According to appellant, he was initially admitted into Mrs. Crutchfield's apartment with her permission, although she made it clear that she did not want him to stay. After she told him to leave for the second or third time, appellant struck Mrs. Crutchfield in the head with the iron bar, and she fell unconscious to the floor. Mrs. Crutchfield remained in a coma until her death several weeks later.

In arriving at our decision, this court applied the tests ofState v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84,388 N.E.2d 755, and State v. Jenkins (1976), 48 Ohio App.2d 99, 2 O.O.3d 73, 355 N.E.2d 825, reasoning:

"In the instant case we are convinced, after considering the totality of the circumstances surrounding the homicide, that although it presents a very close question, there was sufficient evidence for the jury to find that appellant killed Retha Crutchfield with prior calculation and design. * * * Appellant's actions in entering the apartment `armed' with the iron bar concealed in his pants after he had been told to leave the area by Mrs. Crutchfield, in remaining in the apartment for several hours after assaulting Mrs. Crutchfield, and in failing to summon medical assistance as his mother-in-law lay bleeding and unconscious on the floor present circumstances from which the jury could find `a scheme designed to implement a calculated decision to kill' within the meaning of R.C. 2903.01(A). * * *" Allen, supra, at 6-7.

In the present case, appellant had already acknowledged the presence of his firearm to Payne during the verbal part of their altercation. After being struck to the ground by Payne, appellant went into a nearby building where his uncle handed him the gun. Appellant emerged and fired three shots at the fleeing Payne, the second of which killed Mr. Jones. As the court observed in State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 196,616 N.E.2d 909, 919, "[a]lthough defendant's actions took only `a minute or two,' they clearly indicate his `determination to follow through on a specific course of action,' which supports a finding that he previously `adopted a plan to kill.'" (Citations omitted.)

Similarly, in this case appellant's actions took only a short time, but they indicate his intention to use a gun from the very beginning of the altercation, and his determination to follow through with that intention by going to his uncle to obtain the gun. In my opinion, these factors, considered under the totality of the circumstances, support a finding that appellant had adopted a plan to kill and constitute sufficient evidence of prior calculation and design.

With respect to the second assignment of error concerning the manifest weight of the evidence, the jury was charged by the trial court on the offenses of aggravated murder, murder and manslaughter. I believe that the jury did not lose its way in resolving the conflicts in the evidence or in concluding that appellant committed murder with prior calculation and design. SeeTibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211,72 L.Ed.2d 652; State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366,227 N.E.2d 212. Accordingly, I would affirm the trial court's judgment.