IN THE SUPREME COURT OF OHIO
APPEAL FROM
THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO
NO. 92430
STATE OF OHIO
Plaintiff-Appellant
vs.
FRANCO STEPHENS
Defendant-Appellee
MEMORANDUM IN SUPPORT OF JURISDICTION
Counsel for Plaintiff-Appellant
WILLIAM D. MASON
CUYAHOGA COUNTY PROSECUTOR
MATTHEW E. MEYER (0075253)
Assistant Prosecuting Attorney
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
(216) 443-78oo
Counsel for Defendant-Appellee
WILLIAM T. DOYLE
1370 Ontario Street #2000
Cleveland, Ohio 44113
OFFICE OF THE OHIO PUBLIC DEFENDER
25o F.ast Broad Street, Suite 1400
Colutnbus, Ohio 43215-9311
TABLE OF CONTENTS
EXPLANATION OF WHY THIS FELONY CASE INVOLVES A SUBSTAN7'IAL
CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTERES'I'.... ...I
STATEMENT OF THE CASE AND RELEVANT FACTS ...........................................2
LAW ANI) ARGIJMENT ...............................................................................................................6
PROPOSITION OF LAW: WHEN CRIMINAL DEFENDANT ADMITS TO
GIVING THE SHOOTER A LOADED GUN BEFORE PROVOKING A VIOLENT
ENCOUNTER THAT NATURALLY AND FORSEEABLY RESULTS IN THE
SHOOTING OF TWO MEN AND THE ATTEMPTED MURDER OF A'PHIRD, AND
WHERE THE DEFENDANT GIVES AN IMPLAUSIBLE SELF-SERVING S'PATEMENT
TO POLICE THAT IS CONTRADICTED BY EYEWITNESS ACCOUNTS OF THE
INCIDENT, TIIE DEFENDANT IS PROPERLY CONVICTED OF AIDINC AND
ABETTING.
CONCLIJSION .............................................................................................................12
CERTIFICATE OF SERVICE .....................................................................................12
Appendix
State v. Stephens, Cuyahoga App. No. 92430, 2009-Ohio-6305
EXPLANATION OF WHY THIS FELONY CASE INVOLVES A SIJBSTANTIAL
CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTEREST
Under Ohio Law, the requisite culpability necessary to sustain the conviction
of an aider and abettor under R.C. 2923.03 should be presumed where the crime
committed by a principal in furtherance of a common design to commit a cr ninal
offense reasonably could have been contemplated by the aider and abettor as a
natural and probable consequence of the commission of that criminal offense.
In this case, Franco Stephens admitted to giving his gun to cousin Jonathan
Nicholson shortly before the two men disrupted a dice game in the middle of the
night. Stephens and Nicholson had been seen casing the game before approaching.
Stephens was wearing a dark hoodie and gloves, despite the fact that it was a warm
night. Stephens barged into the game, while Nicholson held back with the gun.
When Stephens refused to leave, one of the dice players punched Stephens, who fell
to the ground. Nicholson then started shooting, leaving two of the dice players dead
with gunshot wounds to the head.
Stephens gave a statement to police four months later acknowledging
approaching the game, but insisting he and Nicholson did not intend to rob anyone.
Stephens claimed that after being hit, he had gone unconscious and ran away bef'ore
Nicholson started shooting. One of the survivors, however, gave an immediate
account to police that contradicted Stephens' account. The survivor, who had run
away from the shooting, saw both Nicholson and Stephens leave the yard together.
Nevertheless, the Eighth District Court of Appeals below held that "there
was absolutely no evidence that these two killings had anything to do with a
robbery," and that therc was no evidence that Stephens aided and abetted his
cousin Nicholson in the shootings. The State respectfully submits that when viewed
in a li.ght most favorable to the prosecution, however, Stephens' decision to give his
cousin his loaded handgun before provoking a violent encounter, the natural and
foreseeable result of which was two dead bodies, did constitute sufficient evidence of
aiding and abetting.
Accordingly, the State of Ohio requests that this Honorable Court accept
jurisdiction of this appeal and review this case on its merits.
STATEMENT OF THE CASE AND RELEVANT FACTS
A Cuyahoga County jury found Franco Stephens guilty of two counts of
murder and one count of attempted murder in connection with his role in a shooting
incident perpetrated by Stephens' cousin, Jonathan Nicholson. The original
indictinent charged Stephens with ten counts, including four counts of aggravated
murder with specifications, four counts of aggravate robbery with firearm
specifications, one count each of attempted aggravated murder with firearm
specifications, and one count of having a weapon under disability. At the close of
the State's evidence, the trial court granted defendant's Rule 29 motion as to all
counts and specifications, save for counts 1, 2 (aggravated murder), and count 9,
although the trial court reduced count nine to attempted murder.
2
The shooting occurred in the early morning hours of September 8, 2007.
Stephens was tried as an accomplice, rather than as a shooter. The incident
occurred at 2908 E. 114th Street in Cleveland, the home of Anthony Burns. Burns
was the victim on attempted murder count of the indictment. Edward Walker (also
known as:"E"), and Justin Taylor were friends with Burns. On the night in question,
the three men were at Burns' house with another friend, Tremayne Chandler.
Walker and Taylor had been to the Phase 3 Lounge prior to coming over to Burns'
house. Anthony Burn's 12-year-old niece Cookie had been murdered the week before
and there were plans to go to the funeral the next day.
Some time after midnight, they decided that they would have a dice game in
the backyard. The game was basically between Edward Walker and Justin Taylor.
Two men were seen walking from the area of East 112th and Harvey. The men
approached from the other side of the street, and they crossed over to the side of the
street where the dice game was going on. Those two men turned out to be Stephens,
Franco Stephens, and his cousin, Jonathan Nicholson. Stephens was the shorter of
the two inen, with Nicholson being much taller, about 6'3" tall.
Stephens and his cousin walked by the driveway while the dice game is going
on in the backyard. They kept on walking past the house. The men's action made
Edward Walker suspicious. Walker went into the house and retrieved Anthony
Burns' pit bull puppies out of the house for protection. Stephens was dressed in a
black "hoodie" with a baseball cap on. Although it is a very warm night, both
Stephens and Nicholson were wearing gloves.
3
Stephens and his cousin, Nicholson, walked back to the driveway, and
Stephens proceeded up the driveway and interjected himself in the middle of the
dice game. Stephens asked the men if he could play. Stephens' cousin, Nicholson,
stood behind Stephens, quietly watching. Stephens insisted on playing the gaine,
telling four men that his name was "Frank Nitty." Stephens told the men he was
from E. 121st St and Buckeye and insisted that the four men knew him.
The four men told Stephens that they do not know him and repeatedly told
Stephens that the dice game was a "family game," and he was not welcome, and to
leave. Stephens became angry at this response, and he intensified his effort to play
the game.
Edward Walker then threw a punch at Jonathan Nicholson as well as
Stephens, knocking Stephens' hat off. Stephens then ran off. Jonathan Nicholson
pulled out a gun and shot Edward Walker in the back of the head, killing him.
Justin Taylor and Tremayne Chandler then began to run. Nicholson took aim at the
two men, fired twice, and hit Taylor in the back of the head, killing him.
Anthony Burns ran in the other direction and climbed a fence. Nicholson
took a shot at Burns as he ran away. Stephens and Nicholson then walked away
together from the scene. They were not seen again that night. When the police
arrived, they are given a description of the assailants, and the name of "Frank
Nitty" of the E. 121st St. and Buckeye.
Stephens was not arrested until January 18, 2008.
4
Stephens gave police a statement to the police in which he stated that he was
actually a victim of a felonious assault that night, and went to the hospital.
Stephens told police that after being hit, he became unconscious. He admitted to
having a gun that night, and that it was loaded. Stephens also told police that he
gave the gun to Nicholson at some point before the men arrived at East 1141i' Street.
Stephens admitted that the gun Nicholson used was the same one that Stephens
had provided. Stephens told the police that Nicholson did the shooting and hid the
gun afterward.
The State argued in closing that circumstantial evidence proved that
Stephens' facilitated Nicholson's actions by providing him the gun before the two
men disrupted the dice game. The State argued that the four men were right to be
suspicious of the two approaching men due to their strange clothing (for a warm
night.), with Stephens' wearing a heodie and gloves, and Nicholson hanging back in
the yard as the "shotgun" for Stephens to approach the dice game. The State
argued that the evidence indicated that the shooting was the culmination of a
robbery attempt gone wrong.
The State argued that Stephens' statement to police casting sole blame for
the incident on Nicholson, given four months after the incident, was not credible
and self-serving. Stephens described being hit by brass knuckles didn't match
physical evidence at the seene, and that there was no evidence apart from Stephens'
statement to corroborate his report of being seriously hurt during the incident. The
5
State also pointed out that Stephens' statement denying being in the yard at the
time that Nicholson pulled out the weapon and shot the victims did not match the
survivors' account of the incident. One of the survivors watched Stephens and
Nicholson leave the yard together.
The State maintained that Stephens' role in giving Nicholson the gun before
the incident, coupled with his role in getting into the middle of the dice game and
setting up the altercation proved that Stephens was culpable as n aider and abetter.
Following the jury's guilty verdicts, the trial court sentenced Stephens to 30
years to life imprisonment. On appeal, the Eighth District Court of Appeals vacated
Stephens' convictions for insufficient evidence.
St,ate v. Stepliens, Cuyahoga App.
No. 92430, 2009-Ohio-6305.
PROPOSITION OF LAW: WHEN CRIMINAL DEFENDANT ADMITS TO
GIVING THE SHOOTER A LOADED GUN BEFORF. PROVOKING A VIOLENT
ENCOUN'CER 'CHA'I' NATURALLY AND FORSEEABLY RESULTS IN THE
SHOOTING OF TWO MEN AND THE ATTEMPTED MURDER OF A THIRD, AND
WHERE THE DEFENDANT GIVES AN IMPLAUSIBLF. SF:LF-SERVING STATEMENT
TO POLICE THAT IS CONTRADICTED BY EYEWITNESS ACCOUNTS OF THE
INCIDENT, THE DEFENDANT IS PROPERLY CONVICTED OF AIDING AND
ABETTING.
The State respectfully submits that this Case is worthy of Supreme Court
review to correct the erroneous decision by the Court of Appeals below) t:hat
defendant's convictions for two counts of murder and one count of attempted murder
were not supported by sufficient evidence.
6
A court reviewing the sufficiency of evidence must view the evidence in a
light most favorable to the State, and determine whether any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt.
State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
Reviewing courts should not overturn a conviction on sufficiency grounds unless
reasonable minds could not reach the conclusion reach by the trier of fact.
State v.
Tibbetts, 92 Ohio St.3d 146, 2001-132.
In order to support a conviction for complicity by aiding and abetting under
R.C. 2923.03, `the evidence must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the conimission of
the crime, and that the defendant shared the criminal intent of the principal.' State
v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, syllabus. Such
evidence may be inferred from presence, companionship and conduct before and
after an offense is committed. State v. Car•tellone (1981), 3 Ohio App.3d 145, 150, 3
Ohio B. 163, 3 Ohio App.3d 145, 444 N.E.2d 68. Further, `aiding and abetting may
also be established by overt acts of assistance such as driving a getaway car or
serving as a lookout.' Id. See, also, State v. Trocodaro (1973), 36 Ohio App.2d 1, 6,
301 N.E.2d 898."
Another Eighth District Court of Appeals panel has held that "the
requisite culpability necessary to sustain the conviction of an aider and abettor
under R.C. 2923.03 will be presumed where the crime committed by a principal
in furtherance of a common design to commit a criminal offense reasonably
7
could have been contemplated by the aider and abettor as a natural and
probable consequence of the commission of that criminal offense."
State v.
Fledriclr (Feb. 18, 1988), Cuyahoga App. No. 53422, 1988 WL 18767. The state
may demonstrate that an accused is guilty of aiding and abetting by direct or
circumstantial evidence.
State v. Cartellone (1981), 3 Ohio app. 3d. 145, 444
N.E. 2d. 68- Participation in criminal intent may be inferred from, presence,
companionship, and conduct before and after the offense is committed.
State v
Pruett (1971), 28 Ohio App. 2d 29, 273 N.E. 2d 884.
A person engaged in a common design with others to rob by force and violence
various individuals of their property is presumed to acquiesce in whatever may be
reasonably necessary to accomplish the object of the enterprise; and if, under the
circumstances, it might be reasonably expected that the victim's life would be
endangered by the manner and means of performing the criminal act conspired,
each one engaged in the common design is bound by the consequences naturally or
probably arising in its furtherance and, in case of death, would be guilCy of
homicide. State v. Lockett (1976), 49 Ohio St. 2d. 48, 61.
This Honorable Court has held that an unarmed accomplice in an aggravated
robbery may be charged under R.C. §2911.01(A) and punished as if he were a
principal offender. State v. Chapman (1986), 21 Ohio St.3d 41, 42. In such a case,
"the court can impute the elem.ents of the principal offense, committed by the
principal, to the aider and abettor." State v. Letts (June 22, 2001), 2d Dist. No.
15681,
8
The jury in this case had two distinct and opposite versions of this event.
The Court below maintained that the differences between the defendant's and
victims' accounts "were insignificant, understandable under the circumstances, and
surely not dispositive."
Stephens, supra, at ¶ 3. Respectfizlly, the State submits
that the differences between these accounts were the heart of a credibility
determination that Stephens lost, and which underpinned the jury's decision that
Stepllens' did act with the necessary culpability as an aider and abettor.
In this case, the evidence, viewed in a light most favorable to the
prosecution, supported Stephens' aiding and abetting convictions. On the one hand,
was the Chandler/Burns scenario, from which it could be inferred that Stephens
and Nicholson, armed with a gun, walked by a dice game late at night with an
intent to disrupt the game and rob the participants. Evidence showed that
Stephens scoped out the game before making his approach, while Nicholson hung
back with Stephens's gun, waiting for the opportunity to pull off the robbery at
gunpoint. Of course, Burns, Chandler, Walker, and Taylor, saw through the scheme
immediately, in part due to the strange clothing Stephens' was wearing for a warm
night (a dark hoodie and gloves). Before Stephens and Nicholson could perpetrate a
robbery, however, the victims preempted the situation and struck Stephens first.
Nicholson then tried to kill everyone but only managed to kill two of the men.
Stephens and Nicholson then escaped together and hid the gun, and Stephens was
not arrested for four months.
9
On the other hand was Stephens' implausible version of events. In this
version, Stephens was a friendly guy walking home from the bar. On an impulse,
Stephens decided to engage the victims in a friendly middle-of-the night game of
dice with four people he's never seen before at 2;30 in tho morning. Of course, he
admits he has just given his cousin a gun, and his cousin just happens to stand back
while Stephens does the talking. (who doesn't want to play, but just watch).
Stephens, although polite as can be, is assaulted by the victims as they try to rob
Stephens. This forced Stephens to run away, leaving his cousin behind. As
Stephens was running for his life, he heard some shots, and wonders what
happened. Stephense eventually met up with his cousin, who has Stephens gun. He
was shocked (!) to learn that his cousin had killed two people. Despite being the
victim of a crime, Stephens decided not to call the police was is arrested four
months later. Stephens had no idea where his gun is.
Stephens argued, however (and the Court of Appeals agreed), that Nicholson
was the sole guilty party, and his case should never have gone to the trier of fact,
because Nicholson acted alone, and, if you believe his version of the events, he did
not aid or abet anyone.
But this scenario discounts Stephens giving Jonathan Nicholson his gun
before the incident, and then provoking the violent encounter. If Jonathan
Nicholson didn't have Stephens' gun, no one would have died. Stephens's role in
this was literally to case out the game. Jonathan Nicholson was to ride shotgun,
10
and stayed back with a gun in his waistband ready to provide the muscle for the
robbery to go down.
However, Anthony Burns, Edward Walker, Justin Taylor, and Tremayne
Chandler knew even before Stephens and Nicholson crossed the street that
somehow this looked like trouble coming up. They were right, because two of them
ended up dead. In one minute, there were four men, four friends in the backyard
having a good time and enjoying each other's company. One minute later, two of
them were dead. They saw the trouble coming, and unsuccessfully tried to prevent
it. Anthony Burns literally begged Stephens to leave, and it was obvious Stephens
was not welcome there. Yet Stephens remained, even intensified his efforts to stay
there. Edward Walker took things into his own hands. He let the dogs out - that
didn't work. He punched Nicholson in the face. He knocked Stephens to the groimd.
The natural and foreseeable result: two dead bodies.
Stephens and Nicholson did everything together that night---including run
away together froxn the seene of the crime. This event did not occur the way
Stephens said it did in his self-serving statement. This was a robbery gone bad.
Because there was sufficient evidence to support Stephens' two murder and one
attempted murder convictions on an aiding abetting theory, the State respectfully
submits that the courts decision below was erroneous, and respectfully requests
that this Honorable Court accept this appeal and hear the case on its merits.
11
CONCLUSION
The State submits that this case is worthy of Supreme Court review and
respectfully requests that this Honorable Court accept jurisdiction to hear this case
on its merits.
Respectfully submitted,
WILLIAM D. MASON
Cuyahogli County Prosecutor
lk_
6TTHEW E. MIMYER (0075253)
Assistant Prosecuting Attorney
Cuyahoga County Prosecutor's Office
The Justice Center, Courts'Power
1200 Ontario St.
Cleveland, Ohio 44113
(216) 443-7821
(216) 698-2270 fax
[email protected] ensail
CERTIFICATE OF SERVICE
A copy of the foregoing Memorandum in Support of Jurisdiction was sent by
regular U.S. Mail this 411, day of January, 2010, to William T. Doyle, Esq., and Steve
W. Canfil, Esq., 1370 Ontario Street, 2000 Standard Building, Cleveland, Ohio
44113.
MATTHEW E. M^YER (0075253)
Assistant Prosec^{ting Attorney
12
[Cite as State v. StepHews, 2009-Ohio-6305.1
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 92430
STATE OF OHIO
PLAINTIFI,-APPELLEE
vs.
FRANCO STEPHENS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-506069
BEFORE: McMonagle, P.J., Blackmon, J., and Sweeney, J.
December 3, 2009
RELEASED:
JOURNALIZED:
!
ATTORNEYS FOR APPELLANT
William T. Doyle
Steve W. Canfil
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga Courity Prosecu(or
John R. Kosko
James Hofelich
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
N.B. This entry is an announcement of the court's decision. See App.R.
22(B)and 26(A); Loc.App.R. 22. This decision will be journaiized and will
become the judgment and order of the court pursuant to App.R. 22(C) unless
a motion for reconsideration with supporting brief, per App.R. 26(A), is filed
within ten (10) days of the arinouneement of ttie court's decision. The tirne
period for review by the Supreme Court of Ohio shall begin to rtui upon the
journalization of this court's announcement of decision by the clerk per
App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
a
CHRISTINE T. McMONAGLE, P.J.:
{4j 1} Deferidant-appellarrt Franco Stephens appeals the trial court's
judgment, rendered after a jury verdict, finding him guilty of two counts of
murder and one count of at(ernpted murder and sentericing him to 30 years to
life in prison. For the reasons that follow, we reverse the judgment and
vacate Stephens's conviction.1
I
{¶ 2} A Cuyahoga County jury indicted Stephens in a ten-count
indictment, charging him with four counts of aggravated murder with
rnultiple specifications, four counts of aggravated robbery with firearm
specifications, one count each of attempted aggravated murder with fireau-in
specifications, and having a weapon while under a disability.
{¶ 3) The charges arose out of a shooting by Stephens's cousin,
Jonathan Nicholson, in the early morning hours of September 8, 2007. "I'he
testirriony and statements of all those present at this shootirrg were
reinarkably similar. To the extent that details difTered, they were
insignificant, understandabl.e urider the circumstances of the event, and
surely not dispositive.
'The trial exhibits were not included with the record on appeal. I towever, at
oral argument, both the prosecutor and defense counsel inf'ormed the court that the
exhibits were not necessary for our review and decision in this case.
{¶ 4} Anthony Burns and Edward Walker were friends who lived
together on Fast 11411, Street in Cleveland, Ohio. Justin Taylor and
Tremayne Chandler were likewise friends who joined Burris and Walker in
their backyard in the early rnorning hours of September 8, 2007. Some of the
group had been at the nearby Phase Ill bar bei'ore congregating at the house.
There was discussion about playing a video game; however, Walker wanted to
gamble and went inside the hottse to retrieve some dice. Walker and Taylor
had been outside playing with the dice for only a few minutes, and Cwo
onedollar bills were on the ground, when both Burns and Chandler saw two
men walk down the sidewalk and go past their house. The two men turned
around, and one of therri, Stephens, proceeded up tfie clriveway and asked to
join in the dice garne. The other man, Nicholson, did not ask to join tlie
game, but stood apart watching. Both Burns and Chandler thought
something was amiss and feared that perhaps the two men were going to roh
lhern.z
1151 Stephens introduced hixnself by his street name "Frank Nitty"
and tried to cajole the men into allowing him to play. The men said no, and
Stephens replied, "my money is no good?" as he removed a wad of money from
zThey claimed they were suspicious because of Stephens's dress, Stephens
was wearing a "hoodie"-a cotton jacket with a hood---and bike gloves. The hood
was not up, but Stephens was wearing a hat. No explanation was offered as to why
this dress was suspicious otl7er than it was summertLne, and the jacket had long
sleeves and a hood.
his pocket. They assured him that in fact, his money r-vas no good, and asked
him to leave. Stephens coritinued to press the mern to allow hiiyi to play, and
paid no attention to their requests that he leave what they described as a
"family game."
{¶ 6} Walker, apparently annoyed at the intrusion, first punched
Nicholson. Nicholson did not fall down, but rather left the scene. Walker
then punched Stephens, breaking both his jaw and somc: facial bones.
According to both Stephens (in his statement to the police) and Burns,
Stephens was knocked unconscious.3
{117} Both Burns and Chandler testified that after several rriinutes
Nicholson returned to the scene, took a swig of beer from the bottle in his
hand, and proceeded to fatally shoot Walker in the head. Burns testified
that Stephens was unconscious when Nicholson shot; Chandler said Stephens
was just getting up from Che gr-ound. Nonetheless, Nicholson continued to
shoot, and irr so doing, also shot and killed Justiri Taylor. Everyone ran from
the scene.
{¶ 8} Stephens went to his girlfriend's house nearby; slre convinced him
to go to the hospital. At the hospital, he was told he had a broken jaw and
fractured facial bones, and surgery was performed to wire his jaw.
Subsequent to the surgery, he was interviewed by the police, and gave a
statement that was read in its entirely to the jury by an investigating
detective. In substanc.e, it stated the facts as outlined above.
{¶ 9) Stephens was indicted on multiple counts ol' aggravated murder,
attempted murder, aggravated robbery and having a weapon while under
disability, eacfh with numerous specifications. The matter was tried as a
death penalty case. At the conclusion of the State's case, the court granted
dismissal pursuant to Rute 29 as to Counts 3, 4, 5, 6, 7, 8 and 10, and all
specifications on all counts (i.e., all matters having to do with robbery, with
Stephens having a gun, and with a course of conduct of purposeful killings).
The court reduced the charge in Count 9 (attempted aggravated murder of
Burris) to attempted murder.
{¶ 101 The jury was instructed on aggravated murder (Counts 1 and 2),
murder as a lesser included offense of Counts 1 and 2, and attetmpted murder
under Count 9. The jury returned verdic(s of not guilty of aggravated
murder under Counts 1 and 2, guilty of inurder as lesser and included
offenses of Counts 1 arid 2, and guilty of attempted niurder under Count 9.
11
{¶ 71} Stephens first argues that the evidence was insufficient to
support his convictions. Sufficiency of the evidence is the legal staridard
applied to determine whether the case may go to the jury.
State v. Srnith, 80
3Chandler testified that Stephens was knocked down, but riot unconscious.
4
Oliio St.3d 89, 113, 1997-Ohio-355. In essence, sufficiency is a test of
adequacy and requires a court to determine whether the State has rneL its
burden of production at trial.
State v, Thompkins, 78 Ohio St.3d 380, 390,
1997-Ohio-52. If the State's evidence is found to have been insufficient, as a
mal:Ler of due process the issue stiould not have been presented to t.he jury.
7hompkins at 386; Srnith at 113.
{¶ 12} Whether the evidence is legally sufficient to sustain a verdict is a
question of law. Id. An appellate court's furicLion in reviewing Lhe
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 reasonabic
doubt. The relevant inquiry is wtiether, after viewing the evidence in a lighL
most favorable to the prosecution, any rational trier of fact could have focmd
the essential elements of the crime proven beyond a reasonable doubt.
State
v. Jenks (1991), 61 Ohio St.3d 259, paragraph two oP Lhe syllabus. Reviewing
courts will not overturn convictions on sufficiency of evidence claims unless
reasonable minds could not reach the concl(ision reached by the trier of fact.
See State v. Tibbetts, 92 Ohio St.3d 146, 2001-Ohio-132.
dismissing the charges, the trial court found that there was
absolutely no evidence whatsoever that these two killings had anything to do
with a robbery. This court concurs in toto with the trial court; the record is
utterly devoid of any evidence of a robbery, attempted or otherwise. In fact,
the onty real references to even the concept of a robbery were that Burns and
Chandler feared that Nicholson and Stephens
could be robbers and
accordirrgly determined noL to gamble with them, and the State's argument to
the jury that in essence was: "What else could explain these otherwise
senseless killings?" However, neither Stephens nor Nicholson asked any of
the four for anyChing, no one tried to take anything, no one took anything,
arrd no one threatened to take an}rthing.
{g(14} Remaining for the jury's consideration after the appropriate
dismissal of the charges arrd specifications that involved robbery, possession
of a firearin, brandishing of a firearm, and course of conduct involving
purposeful killings, was whether Stephens aided and abetted Nicholson in the
killirig of Walker and Taylor and the atternpted murder of Burns. Upon this
issue, the apposite facts are known. Stephens and Nicholson were cousins,
and were together after drinking at the Phase III bar when they walked into
a yard where Burns and Walker lived. With Walker arrd Burns were
Chandler and Taytor. A dice game had just beguri. Stephens begged to be.
included; Burns repeatedly told him to leave. When Stephens and Nicholson
did not leave, Walker first punched Nicholson, then Stephens. Nicholson
left, but Stephens did not (he was either unconscious or dazed). Nicholson
^
returned momerits later with a gun, arid stiot at all four people, killing two.4
Nicholson andStephens ran from the scene, cither together according to
Chandler-'s testimony, or separately according to Stephens's statement to
police.
{j[15} To support a conviction for complicity by aiding and abetting, the
evidence must show that the defendant supported, assisted, encouraged,
cooperated widh, advised, or incited the principal in the commission ofthe
erime, and that the defendant shared the criminal intent of the principal.
R.C. 2923.03(A)(2); In re "I'.K, 109 Ohio St.3d 512, 2006-Ohio-3056, ^13. In
order to constitute °aiding and abetting," the accused must have taken sorne
role in causing lhe commission of the offense_
State v. Jordan, 168 Ohio
App.3d 202, 2006Ohio-538, appeal not allowed, 109 Ohio St.3d 1507.
2006-Ohio-2998. We have no evidence here, either direct or circumstantial,
that Stepherts and Nicholson had any sort of plan or agreement. `1'hetrial
court ruled as a matter of law at the conclusiori of the State's case that there
was no evidence which, if believed, would constitute a plan of a robbery, an
atternpted robbery, or a completed robbery. Likewise, the trial court ruled
that there was no evidence [hat Stephens possessed, brandished or used a
gun during t.he incident.
4The gun that Nicholson had belonged to Stephens; however [here was no
evidence of when and under what circumstances this gun came into Nicholson's
possession.
9
{¶ 16} We are hence left solely with the issue of whether Stephen s aided
and abetted Nicholsori in the shooCings; abserit any evidence of a plan or
agreement, we look solely to the facts of the shootirigs. It was unrebutted
that prior to the shootings, Walker hit Stephens in the face with enough force
(or with a weapon) to fracture his jaw and facial bones. Stephens was either
unconscious on the ground (Burns's testirnony), or jusl ciaz.ed and getting up
(Chandler's testimony) when Nicholsori opened fire. There was rio testimony
of any communication between Nicholson and Stephens.
{y(17} In sum, the on(y facts before the jury on the issue of whether
Stephens aided and abetted Nicholson were: (1) they arrived at the scene.
togel_her; (2) they may have left the scene together; and (3) the gun used by
Nicholson was owned by Stephens. There was no evidence of a plan to shoot,
and there was no evidence of Stephens inciting, advising, encouraging or
assisting in the shooting. "Mere presence of an accused at the scene of a
crime and the fact that he was acquainted with the perpetrator is not
sufficienC proof, in and of itself, that he was an aider and abettor."
Columbt.rs
v. Russell (1973), 39 Ohio App.2d 139, syllabus.
{9f 18} Appellant's first assignment of error is sustained; the judgment of
conviction is reversed and Stephens's conviction is ordered vacated. His
other assignments of error are therefore moot and we need not consider them.
See App.R. 12(A)(1)(c).
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court direclir'ig the
common pleas court to carry this judgmerit into execution. Case remanded to
trial court with instructions to vacate the conviction.
A certified copy of this entry sha11 constitute the mandate pursuant to
Rule 27 of the Rutes of Appellate Procedure.
PATRICIA A. BLACKMON, J., arrd
JAMES .1. SWEENEY, J., CONCUR
11