State of Ohio v. Demarius M. Rudasill

Columbus, OH - Criminal defense attorney represented Demarius M. Rudasill with a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which appellant was found guilty of murder, aggravated robbery, and having weapons while under disability.

{¶ 1} This is an appeal by defendant-appellant, Demarius M. Rudasill, from a

judgment of conviction and sentence entered by the Franklin County Court of Common

Pleas following a jury trial in which appellant was found guilty of murder, aggravated

robbery, and having weapons while under disability.

{¶ 2} On January 25, 2018, appellant was indicted on one count of aggravated

robbery, in violation of R.C. 2911.01, one count of aggravated murder, in violation of R.C.

2903.01, one count of murder, in violation of R.C. 2903.02, and one count of having

weapons while under disability, in violation of R.C. 2923.13. Each of the first three counts

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also carried firearm specifications. The indictment arose out of the shooting death of a

teenager, R.D., on August 18, 2017.

{¶ 3} The matter came for trial before a jury beginning January 7, 2019. In August

2017, Anthony Norvett and his girlfriend, Elizabeth Cordery, resided near East 15th

Avenue, Columbus. On the evening of August 18, 2017, Norvett heard the sound of a

gunshot nearby. Cordery, who was working third shift that evening, arrived home the next

morning at approximately 8:00 a.m. and observed someone lying on the steps of a nearby

residence. A short time later, Cordery walked over to the area with her sister and "found

[the victim] dead, blood on the porch." (Tr. Vol. II at 193.) Cordery dialed 911, and

Cordery's sister took video of the scene.

{¶ 4} On August 19, 2017, at 8:20 a.m., Columbus Police Officer Vincent A. Miller

responded to the scene at East 15th Avenue. Upon arrival, he observed a male on a porch

step "bleeding from the mouth." (Tr. Vol. II at 203.) The officer "got no reaction at all from

him, so I thought he was probably deceased at that point." (Tr. Vol. II at 204.) At trial,

Officer Miller identified photographs taken of the crime scene, as well as photographs of

the deceased victim.

{¶ 5} R.V., age 17, testified he was currently in a juvenile placement program. R.V.

was a friend of the shooting victim, R.D. On August 18, 2017, R.V. had spent the night at a

"female's house in the Short North." (Tr. Vol. II at 227.) That morning, he "woke up to

somebody knocking on the door. [He] answered the door and it was Nutto, [R.D.] and

another person whose name [he] forg[o]t." R.V. had known "Nutto" (later identified as

Nasear Smith) for several years "[f]rom the neighborhood and * * * through other people."

(Tr. Vol. II at 228.)

{¶ 6} R.V. testified that R.D. "came in with his gun that I didn't know he had, and

Nutto had a gun on him." R.V. stated that "they had an extra gun," and "we all asked him

where he had got the gun from." (Tr. Vol. II at 228.) Nutto "told me that they had robbed

somebody's house for it and Nutto just provided the ride, but [R.D.] had actually went in to

go get the gun." (Tr. Vol. II at 230.) R.D. and Nutto began "arguing over whose gun it was."

(Tr. Vol. II at 231.)

{¶ 7} A short time later, Nutto went upstairs to take a shower. R.V. testified that,

while Nutto was in the shower, R.D. "sold the gun to my other friend named Fatz" for

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approximately $200. (Tr. Vol. II at 231.) When Nutto came back downstairs, Fatz informed

Nutto that R.D. " 'just sold it to me.' " Nutto and R.D. then "started arguing about it." Nutto

"said, 'Why you selling my gun?' And [R.D.] told him that it was his gun because he was

the person who actually went inside the house that they robbed to get it and Nutto had just

provided the ride." (Tr. Vol. II at 232.)

{¶ 8} R.D. then offered to " 'shoot dice for it.' " (Tr. Vol. II at 233.) R.D. won the

dice game and "was acting cocky." R.D. "told [Nutto] like, 'You should have never * * * put

your money up. This is mine now. I just scoped * * * you.' " R.V. testified that if R.D. wins

a bet, he usually gives the other person "half their money back, but he didn't do that this

time." (Tr. Vol. II at 234.) Instead, R.D. gave half of the money he won to R.V.

{¶ 9} R.D. then asked R.V. to go to a cookout with him. They asked Nutto for a

ride, and Nutto "told us he needed $20 first." (Tr. Vol. II at 235.) Fatz offered to give them

a ride for $10, and "then Nutto was like, never mind, I'll take you all for $10. So we * * *

just rode with Nutto because [R.D.] felt bad he took his money already, so he wanted him

to have a chance to get some money that he lost back." (Tr. Vol. II at 235-36.)

{¶ 10} Nutto gave R.D. and R.V. a ride to the home of R.D.'s grandmother. A short

time later, R.D. and R.V. walked down the street to the cookout. After leaving the cookout,

R.D. and R.V. decided to "get a hotel," but they needed a ride. (Tr. Vol. II at 237.) R.D. told

R.V. "he was going to call Nutto to drop us off." R.V. responded that he did not " 'think that

would be a good idea' " to call Nutto since R.D. had just taken " 'money out of his [Nutto's]

pocket in the dice game' " and had " 'just sold his gun.' " (Tr. Vol. II at 238.)

{¶ 11} R.D. called Nutto, and Nutto pulled up quickly. Nutto drove to a gas station

on Cleveland Avenue and, "out of nowhere," appellant, who R.V. referred to as "Rudy," and

another individual referred to as "Man-Man," walked up to the car. Appellant and ManMan got inside the vehicle. R.V. was seated in the middle back seat, with Man-Man "on the

left side of me and [appellant] * * * on the right side of me behind [R.D.]." R.V. did not

know Man-Man and appellant, but R.D. "knew them" and he "introduced me to them." (Tr.

Vol. II at 240.)

{¶ 12} After everyone got into the car, "Nutto told us he had to make a stop." They

"stopped at Nutto's people's house." (Tr. Vol. II at 241.) Upon arriving, everyone exited the

vehicle; Nutto, Man-Man, and appellant walked inside the residence, but R.V. and R.D.

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were left outside because "they had shut the door on us * * * and Nutto told us that he

wanted us to wait in the car because his people didn't know us, so we said okay and we sat

in the car and waited on them." (Tr. Vol. II at 242.)

{¶ 13} After approximately 20-30 minutes, the other individuals returned to the car.

Once inside the vehicle, "Man-Man told us that he had this * * * he referred to it as a lick,

somebody for us to rob for a check for some money. * * * He said somebody had got some

money * * * like, a first of the month check or something like that." (Tr. Vol. II at 242.) R.V.

testified he was not in agreement with the plan, and that he "was ready to go to the hotel. I

had told [R.D.] * * * I already had text[ed] the girls to tell them to just meet us at the hotel

* * * and they wanted to go rob somebody." (Tr. Vol. II at 245.)

{¶ 14} The others discussed robbing the individual with the check, and R.V. testified

that he had a "feeling" they were "going to make [R.D.] do it" because R.D. "had a gun on

him." However, before they "even got to the house that we was supposed to rob, Nutto had

asked did we want to go shoot up a dude named Rail's house." R.D. "had problems with a

person named Rail, so they all agreed to do it." (Tr. Vol. II at 246.) R.V. agreed to

participate also.

{¶ 15} They arrived in an alley behind this individual's house, and Nutto "told [R.D.]

to start shooting and [R.D.] had put his gun out the window like he was about to shoot."

R.V., however, who was seated behind R.D., "snatched [R.D.'s] gun out of his hand" because

R.V. "didn't see Rail" and "there were kids in the backyard." (Tr. Vol. II at 247.)

{¶ 16} The other individuals in the vehicle were mad at R.V., "cussing [him] out."

Nutto sped away from the area and drove to the house "we was supposed to rob." When

they arrived, it was "nighttime." (Tr. Vol. II at 248.)

{¶ 17} Nutto, who remained in the vehicle, "gave his gun to [appellant] when

[appellant] got out of the car and Man-Man didn't have a gun on him." R.D. "had his gun."

(Tr. Vol. II at 249.) R.V. described the weapon Nutto handed to appellant as "a Glock." (Tr.

Vol. II at 250.) R.D. exited the vehicle; R.V. also began to exit the vehicle, but R.D. "put his

hand on my chest and just pushed me back on the seat * * * lightly." R.D. said to R.V.: "

'You don't even got no gun. They already mad because you didn't let me shoot up Rail's

house, so you might as well just stay in here with Nutto and I'll be right back.' And he told

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me he loved me and I told him, all right, I love him too.' " At that point, appellant, ManMan and R.D. "got out of the car." (Tr. Vol. II at 249.)

{¶ 18} Nutto sat in the vehicle with some earphones on, while R.V. sat occupied with

his phone. A short time later, R.D. "came back running to the car and Man-Man followed

up after him running back to the car." Nutto "asked him what was wrong," and R.D. said

"I ain't feeling it, the neighbor is outside on the front porch." R.V. told R.D. he "might as

well get back in the car." Man-Man, however, "insisted that he go back." R.D. then "said,

'All right, I'm going to try again.' " (Tr. Vol. II at 251.) R.D. and Man-Man then returned to

the house.

{¶ 19} A short time later, R.V. "heard a loud sound." R.V. "snatched the earphones

out of Nutto and * * * said, 'You hear that?' " Nutto responded: " 'Yeah, that's probably

them just kicking in the backdoor.' " (Tr. Vol. II at 252.)

{¶ 20} Man-Man then "came running back to the car and * * * as soon as he had got

in the car, Nutto just took off driving and was going real fast." (Tr. Vol. II at 252-53.) Nutto

asked " 'Where's my gun,' and then Man-Man gave him the gun." (Tr. Vol. II at 253.) R.V.

testified it was the same weapon Nutto had earlier handed to appellant as appellant was

exiting the vehicle.

{¶ 21} Man-Man "was crying," and R.V. "asked him what happened." (Tr. Vol. II at

253.) R.V. then asked Man-Man: " 'Where [R.D.] at?' I'm like, 'Where the other dude,

Rudy, at?' And he was like, 'Well, I don't know, I don't know, brother, the neighbors just

came back there shooting.' " (Tr. Vol. II at 253-54.) R.V. told Nutto to turn the car around,

but Nutto indicated the car was " 'a hottie,' " meaning "it's a stolen car." They eventually let

R.V. out "in the middle of the street," and he "ran back towards the area where everything

happened." (Tr. Vol. II at 254.)

{¶ 22} As R.V. approached the area, he was "yelling [R.D.'s] name * * * hoping that

he could hear me." When he arrived "on the street * * * where it happened at, I had seen a

figure in the shadow with some shoes * * * that had reflectors on it and * * * I feel like it was

the same type shoes that [appellant] was wearing. So I didn't go back into the backyard."

(Tr. Vol. II at 254.)

{¶ 23} R.V. then ran to a friend's house and told his friend "I think [R.D.] had got

shot." (Tr. Vol. II at 255.) The friend said he could not go with him because he was watching

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his niece. The next morning, R.V. called his friend "Fatz," and they drove to the location,

but the area was "taped off." (Tr. Vol. II at 256.) R.V. spoke with law enforcement officers

approximately ten days after the incident. At trial, R.V. identified appellant as the same

individual, "Rudy," who he was with on the date of the incident. (Tr. Vol. II at 259.)

{¶ 24} Columbus Police Detective Daniel G. Douglas, a member of the crime scene

search unit, responded to the scene at East 15th Avenue. At trial, Detective Douglas

identified photographs taken of the crime scene and the victim, including coroner

photographs. The detective identified a shell casing found at the scene.

{¶ 25} Dr. John A. Daniels, a deputy coroner and forensic pathologist with the

Franklin County Coroner's Office, identified plaintiff-appellee, State of Ohio's, Exhibit C as

the coroner's findings for R.D. Dr. Daniels testified the victim suffered "a gunshot wound

that entered the left side of the neck and exited near the right eye." The wound "entered

towards the back of the neck." (Tr. Vol. II at 348.) Dr. Daniels estimated the wound was

inflicted from a distance of "very close to about two feet." (Tr. Vol. II at 357.) He opined

the manner of death was "homicide" caused by a "gunshot wound of the head and neck."

(Tr. Vol. II at 360-61.)

{¶ 26} On September 15, 2017, Columbus Police Officer Emanuel Woods

interviewed appellant at Columbus Police headquarters. A homicide detective, Ronda

Siniff, had asked Officer Woods to participate in the interview with appellant because the

officer had "somewhat of a * * * rapport with him." (Tr. Vol. III at 389.) The detective told

Officer Woods that "she had information that [appellant] was involved in a homicide. She

told me that -- I guess he wasn't the shooter, but they had witnesses that placed him there."

(Tr. Vol. III at 396.)

{¶ 27} During the interview, appellant told the officer that "initially it was supposed

to have been a robbery and pretty much it went a different way." Appellant stated they were

"only supposed to rob [R.D.], * * * and that Man-Man was the shooter." The incident arose

"over a gun." Appellant "said that he did not have a gun and pretty much wanted a gun."

(Tr. Vol. III at 400.) Appellant told the officer that R.D. and Nutto had earlier been involved

in "a robbery and got a gun * * * and ended up selling the gun. The gun was supposed to go

to [appellant] and they ended up selling it, so * * * Nutto called [appellant] and told him

that he'd just rob [R.D.] for his gun to get [R.D.'s] gun." (Tr. Vol. III at 400-01.)

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{¶ 28} Appellant stated "they were somewhere near Weber [Road] and he was

picked up by Man-Man and [R.D.] and Nutto and R.V. and they all left and went to * * *

some street and * * * the plan was to rob [R.D.] for the gun so that he can get a gun." (Tr.

Vol. III at 401.) Appellant stated they told R.D. "that some old man was staying around the

corner who had some money and they was going to kick in the door and * * * rob the old

man." Appellant told the officer it was "a made-up story, that there wasn't anybody to rob.

The whole plan was to rob [R.D.]." (Tr. Vol. III at 403.)

{¶ 29} They parked the car near a vacant house. Appellant related "that when they

got out of the car [R.D.] was * * * towards the front walking," and "Man-Man was directly

behind him * * * to the left of him." As they walked behind the house, appellant's "initial

thing was to * * * look to make sure nobody was coming and he said at that time he seen

Man-Man up the gun, which means raise the gun." (Tr. Vol. III at 404.) Appellant "said

something like, '[h]old on.' " (Tr. Vol. III at 405.) Appellant told Man-Man to hold on "to

* * * look and make sure nobody was coming." (Tr. Vol. III at 406.) After appellant "had

told him, '[h]old on, * * * that's when [appellant] said [Man-Man] just pulled the trigger,"

and appellant "heard the pop and saw him fall." Appellant informed the officer the victim

was shot "[i]n the back of the head." (Tr. Vol. III at 405.)

{¶ 30} Appellant told the officer that, after he saw R.D. fall to the ground, he "took

off running between the houses." Appellant stated that, as he was running, "there was a

house to the left of him where some old guy was * * * and the guy started shooting at him."

Appellant "continued running between the houses away from where it happened." When

asked why he did not go back to the car with Man-Man, appellant "said his thing was just

to get the gun and leave and go call his brother to come and get him." (Tr. Vol. III at 406.)

{¶ 31} At the close of the state's case-in-chief, defense counsel made a Crim.R. 29

motion for judgment of acquittal, which the trial court denied. Following deliberations, the

jury returned verdicts finding appellant guilty of murder, aggravated robbery, and having

a weapon while under disability. By judgment entry filed January 16, 2019, the trial court

sentenced appellant to a total term of 22 years to life. On January 23, 2019, the trial court

filed an amended judgment entry.

{¶ 32} On appeal, appellant sets forth the following four assignments of error for

this court's review:

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[I.] Rudasill's trial attorney was ineffective with resulting

prejudice because he did not move to suppress his statements,

because substantive inadmissible hearsay was introduced

without objection, and because he failed to request a jury

instruction on abandonment.

[II.] The State's evidence against Rudasill was legally

insufficient as a matter of law.

[III.] The evidence weighed manifestly against convicting

Rudasill of murder and aggravated robbery.

[IV.] The trial court committed reversible error in failing to

provide a jury instruction on the affirmative defense to

Rudasill's complicity acts.

{¶ 33} Under the first assignment of error, appellant raises claims of ineffective

assistance of counsel in which he asserts his trial counsel was deficient in failing to: (1) move

to suppress appellant's statements, (2) object to substantive inadmissible hearsay during

the trial, and (3) request an instruction on abandonment.

{¶ 34} In order to prevail on a claim of ineffective assistance of counsel, a defendant

must "show, first, that counsel's performance was deficient and second, that the deficient

performance prejudiced the defendant so as to deprive the defendant of a fair trial." State

v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 391, citing Strickland v. Washington, 466

U.S. 668, 687 (1984). Further, "[t]he failure to make either showing defeats a claim of

ineffective assistance of counsel." State v. Kennard, 10th Dist. No. 15AP-766, 2016-Ohio2811, ¶ 14, citing State v. Bradley, 42 Ohio St.3d 136, 143 (1989). In order to "demonstrate

that counsel's performance was deficient, appellant must show that his counsel committed

errors which were ' "so serious that counsel was not functioning as the 'counsel' guaranteed

the defendant by the Sixth Amendment." ' " Id. at ¶ 15, quoting State v. Phillips, 74 Ohio

St.3d 72, 101 (1995), quoting Strickland at 687.

{¶ 35} Appellant first contends his trial counsel was ineffective in failing to move to

suppress statements he made to law enforcement officials during the interview at police

headquarters. In support, appellant cites comments made by defense counsel to the jury

during opening statements in which counsel argued appellant was young and

inexperienced, that he could not read or write, and police "pretty much had their way as far

No. 19AP-61 9

as questioning my client." (Tr. Vol. II at 173.) Appellant contends that trial counsel was, in

essence, arguing he did not knowingly and voluntarily waive his Miranda rights.

{¶ 36} Because the decision whether to file a motion to suppress " 'falls within

matters of trial strategy, counsel is not required to file a motion to suppress evidence in

every case.' " State v. Riffle, 8th Dist. No. 107352, 2019-Ohio-3271, ¶ 9, quoting State v.

Price, 8th Dist. No. 90308, 2008-Ohio-3454, ¶ 19, citing State v. Flors, 38 Ohio App.3d 133

(8th Dist.1987), paragraph two of the syllabus. Thus, "[t]rial counsel is not per se ineffective

when it fails to file a motion to suppress." Id., citing State v. Madrigal, 87 Ohio St.3d 378,

389 (2000). Rather, a trial counsel's "failure to file a motion to suppress constitutes

ineffective assistance only when the defendant can show that the motion 'would have "had

a reasonable probability of success" and affected the outcome of the case.' " Id., quoting

State v. Patterson, 8th Dist. No. 105265, 2017-Ohio-8318, ¶ 35, quoting State v. Sanchez,

8th Dist. No. 103078, 2016-Ohio-3167, ¶ 22.

{¶ 37} It is well-settled that "[a] suspect in police custody ' "must be warned prior to

any questioning that he has the right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney, and that

if he cannot afford an attorney one will be appointed for him prior to any questioning if he

so desires." ' " State v. Valentine, 10th Dist. No. 14AP-893, 2016-Ohio-277, ¶ 10, quoting

State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, ¶ 6-7, quoting Miranda v. Arizona,

384 U.S. 436, 479 (1966). A suspect may, however, "waive or relinquish a known right"

and, "[i]n the context of Miranda, the United States Supreme Court has explained the two

aspects of waiver." Id. First, "relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than intimidation,

coercion, or deception," and "[s]econd, the waiver must have been made with a full

awareness of both the nature of the right being abandoned and the consequences of the

decision to abandon it." Id.

{¶ 38} Under Ohio law, "[a] court may infer from the totality of the circumstances

that a defendant voluntarily, knowingly, and intelligently waived his rights." Id. at ¶ 11,

citing State v. Clark, 38 Ohio St.3d 252, 261 (1988); State v. Gapen, 104 Ohio St.3d 358,

2004-Ohio-6548, ¶ 52. A review of the totality of the circumstances "includes 'the age,

mentality, and prior criminal experience of the accused; the length, intensity, and frequency

No. 19AP-61 10

of interrogation; the existence of physical deprivation or mistreatment; and the existence

of threat or inducement.' " Id., quoting State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585,

¶ 25, quoting State v. Eley, 77 Ohio St.3d 174, 178 (1996). Further, " '[o]nly if the "totality

of the circumstances surrounding the interrogation" reveals both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that the Miranda rights

have been waived.' " Id., quoting Lather at ¶ 7, quoting Moran v. Burbine, 475 U.S. 412, 421

(1986).

{¶ 39} In the instant case, appellant points to nothing specific in the record

indicating he did not understand his Miranda rights so as to render his statements

involuntary. As noted under the facts, Columbus Police Officer Woods conducted an

interview of appellant at police headquarters on September 15, 2017, at the request of

Detective Siniff. At trial, Officer Woods identified state's Exhibit K as a waiver of rights

form signed by appellant. Officer Woods testified that Detective Siniff reviewed the waiver

of rights form with appellant; Officer Woods was standing in the hallway at the time and

heard the detective read the form to appellant. The interview took place at approximately

4:38 p.m.

{¶ 40} At the time of the interview, Officer Woods was not familiar with the case,

and Detective Siniff gave him very few details. The detective told Officer Woods that

witnesses had placed appellant at the scene of a shooting. Officer Woods testified the

"[s]trategy was just to go in and just look him in the eye, man to man, and * * * if you have

anything * * * to tell us, let us know. * * * I'm not in here screaming at you * * * but * * * if

you have some information * * * let us know." (Tr. Vol. III at 397.) The officer stated the

interview was recorded on both video and audio.

{¶ 41} Officer Woods testified that he initially told appellant "they had some

information on him that put him * * * at a homicide scene." (Tr. Vol. III at 398.) At first,

appellant denied any involvement. Officer Woods stated that "we continued to be calm with

him, just * * * hey, man, * * * just tell us what happened." Appellant then "put his hands on

his face, his eyes started turning like really red; so that's when I just waited to see would he

say something and that's when he started telling me about it." (Tr. Vol. III at 399.) At one

point during the interview, appellant took a piece of paper and drew a diagram, indicating

"where they parked at the house and the alleys." (Tr. Vol. III at 411.)

No. 19AP-61 11

{¶ 42} While appellant cites his age and inexperience, there is no indication from

the record that those factors prevented him from acting voluntarily. Under Ohio law, "an

individual's low intellect does not necessarily render him or her incapable of waiving

Miranda rights." State v. Lynn, 7th Dist. No. 11 BE 18, 2011-Ohio-6404, ¶ 14, citing State

v. Jenkins, 15 Ohio St.3d 164, 233 (1984); State v. Hall, 48 Ohio St.2d 325, 333 (1976).

Rather, an individual's "low intellect is but one of many factors under the totality of

circumstances that a court must consider in assessing the voluntariness of a Miranda

waiver or confession." Id., citing State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048,

¶ 113. See also Garner v. Mitchell, 557 F.3d 257, 264 (6th Cir. 2009) ("mental capacity is

one of many factors to be considered in the totality of the circumstances analysis regarding

whether a Miranda waiver was knowing and intelligent," and therefore "diminished mental

capacity alone does not prevent a defendant from validly waiving his or her Miranda

rights").

{¶ 43} The record indicates appellant was 21 years of age at the time of the events

and had some prior experience with law enforcement. While appellant emphasizes he is

unable to read and write, Officer Woods testified that Detective Siniff read and reviewed

with appellant his Miranda rights, and appellant signed the waiver of rights form. Further,

there is nothing in the record to suggest he had difficulty understanding or answering the

interview questions; Officer Woods testified that appellant did not appear confused during

the interview, and he never told the officer he did not understand any of the questions.

Appellant does not identify, nor does the record indicate, any coercive tactics by police

officers conducting the interview. At no time did appellant request the presence of an

attorney or family member. The record also does not suggest police pressured appellant

into making the statements; as noted, at one point during the interview appellant willingly

drew a diagram of the crime scene for the officers.

{¶ 44} Here, in the absence of evidence of police overreaching or any indication

appellant was unable to understand the rights he was waiving, the record fails to support a

claim the statements were involuntary or taken in violation of Miranda. Appellant has

therefore failed to demonstrate a reasonable probability that a motion to suppress would

have been successful. Accordingly, appellant's counsel was not ineffective in failing to file

a motion to suppress.

No. 19AP-61 12

{¶ 45} Appellant also contends his trial counsel was ineffective in failing to object to

substantive hearsay during trial. Specifically, appellant argues R.V. was permitted to

speculate that appellant agreed to a plan to rob an individual of a paycheck, and that R.V.

similarly speculated appellant agreed to participate in shooting up the house of an

individual named Rail. Appellant further argues counsel should have objected to R.V.'s

statement that he had a feeling appellant was going to make the victim commit a robbery.

{¶ 46} To the extent appellant challenges R.V.'s testimony about statements made

by appellant, we agree with the state that such statements were admissible as admissions

by a party opponent under Evid.R. 801(D)(2). Pursuant to Evid.R. 801(D)(2)(a), a

statement is not hearsay if it is "offered against a party and is * * * the party's own

statement." Thus, any objection to admission of those statements would have not been

successful.

{¶ 47} As noted, appellant also challenges R.V.'s statements regarding plans by

those in the vehicle to rob an individual of a check and to shoot up an individual's house as

inadmissible hearsay. We disagree. Pursuant to Evid.R. 801(C), hearsay is defined as "a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted."

{¶ 48} In the present case, R.V. provided direct testimony regarding the events on

the date of the incident, including his acquiescence in the decision to drive to the house of

an individual named Rail and to shoot up the house, and he also testified as to his

observations of the other individuals, including appellant. Stated otherwise, R.V. provided

testimony as an eyewitness to the events (i.e., based on his own personal observations and

not out-of-court statements), he was subject to cross-examination on those matters, and

such testimony did not constitute hearsay. See, e.g., State v. Perry, 8th Dist. No. 65455

(May 12, 1994) ("[p]ersonal observations of a witness are not hearsay"); State v. Havens,

9th Dist. No. 20020 (Nov. 1, 2000) (testimony of deputy was not hearsay because he did

not testify to any out-of-court statements but, rather, testimony "was based on his own

personal observations"); State v. Waver, 12th Dist. No. CA2015-08-155, 2016-Ohio-5092,

¶ 51 (like any other witness, testimony by co-conspirator "regarding her direct observations

and actions was admissible, regardless of her status as a co-conspirator" and,

"[a]dditionally [the co-conspirator] could testify to any statement made directly to her by

No. 19AP-61 13

appellant, as an admission by a party-opponent pursuant to Evid.R. 801(D)(2)(a)"). Here,

counsel was not ineffective for "failing to object to admissible evidence." State v. McKinzie,

10th Dist. No. 00AP-1182 (June 5, 2001).

{¶ 49} Appellant also contends his trial counsel was ineffective for failing to request

an instruction on abandonment, asserting that the only rational affirmative defense to

felony murder was to argue he withdrew from the alleged plan to rob R.D. Appellant

maintains there was evidence of abandonment based on the testimony of Officer Woods as

to statements made by appellant during the interview; specifically, appellant points to

testimony by the officer indicating that appellant, at the time Man-Man raised the gun, told

him to "[h]old on." (Tr. Vol. III at 405.) Appellant argues, therefore, his counsel should

have objected to the court's failure to charge on the affirmative defense as outlined in R.C.

2923.03(E).

{¶ 50} The affirmative defense of abandonment "is a possible defense to a conviction

for complicity in the commission of an offense under R.C. 2923.03(E)." State v. Hawkins,

8th Dist. No. 44747 (Dec. 16, 1982). R.C. 2923.03(E) states: "It is an affirmative defense to

a charge under this section that, prior to the commission of or attempt to commit the

offense, the actor terminated his complicity, under circumstances manifesting a complete

and voluntary renunciation of his criminal purpose."

{¶ 51} A review of the record indicates the defense's theory of the case, as reflected

by counsel's comments during closing argument, was that appellant was aware of a plan to

rob an unnamed individual of a check, but that he "didn't know that the actual victim of the

robbery was going to be [R.D.]." (Tr. Vol. III at 530.) Defense counsel further argued

appellant did not want to be involved in "any homicide." (Tr. Vol. III at 533.)

{¶ 52} As argued by the state, a denial of involvement is inconsistent with a claim of

abandonment. See, e.g., State v. Sheridan, 3d Dist. No. 5-80-31 (June 25, 1981) (charge on

abandonment neither justified nor required as defendant's denial he had any intent to

commit rape or to attempt to commit rape was "totally inconsistent with a theory of

abandonment of an attempted crime"); State v. James, 8th Dist. No. 72922 (Sept. 24, 1998)

(defense counsel not ineffective in failing to raise affirmative defense of abandonment

where thrust of appellant's defense at trial was that he did not participate in any way in the

shootings of the victims whereas a defense of abandonment, by contrast, "implies initial

No. 19AP-61 14

participation in a scheme but then renunciation of it"); State v. Whitfield, 2d Dist. No.

12297 (Jan. 17, 1992) (appellant's defense that he was totally without criminal culpability

"would have been inconsistent with a defense of having completely and voluntarily

renounced a prior criminal purpose"); State v. Fickenworth, 10th Dist. No. 13AP-826,

2014-Ohio-2502, ¶ 15 (trial court did not err in failing to instruct on abandonment where

appellant "unequivocally" denied being involved in a conspiracy to commit murder).

{¶ 53} Further, in order to prove abandonment/termination, a defendant is

required to show that he "manifested a complete and voluntary renunciation of his criminal

purpose." State v. Hernandez-Martinez, 12th Dist. No. CA2011-04-068, 2012-Ohio-3754,

¶ 40. As noted, appellant argues that his statement to "hold on" evinced abandonment of

any participation in the robbery of R.D. According to the testimony of Officer Woods,

however, appellant's initial role was to "look to make sure nobody was coming." (Tr. Vol.

III at 404.) Officer Woods further testified that when Man-Man raised the weapon,

appellant told Man-Man to hold on "just to * * * look and make sure nobody was coming."

(Tr. Vol. III at 406.)

{¶ 54} Under Ohio law, "[w]here one abandons an attempted crime because he fears

detection or realizes that he cannot complete the crime, the 'abandonment' is neither

'complete' nor 'voluntary.' " State v. Chafin, 5th Dist. No. 2019 CA 00014, 2019-Ohio-5306,

¶ 29, quoting State v. Woods, 48 Ohio St.2d 127, 133 (1976), overruled on other grounds,

51 Ohio St.2d 47. See also State v. Green, 4th Dist. No. 92 CA 32 (Dec. 14, 1993) (noting

"[m]any [Ohio] courts have agreed that the act of ending a crime due to the fear of detection

is not a 'complete and voluntary renunciation' "). Further, "the mere act of telling someone

not to do a crime does not manifest a 'complete and voluntary renunciation of [a] criminal

purpose.' " State v. Washington, 6th Dist. No. L-90-199 (May 31, 1991), quoting R.C.

2923.03(E).

{¶ 55} Given the defense's theory of the case and the evidence presented, we find

unpersuasive appellant's contention that defense counsel was ineffective in failing to

request an instruction on abandonment under R.C. 2923.03(E). Based on the foregoing,

appellant has failed to establish ineffective assistance of counsel under Strickland.

{¶ 56} Appellant's first assignment of error is not well-taken and is overruled.

No. 19AP-61 15

{¶ 57} Appellant's second and third assignments of error are interrelated and will be

considered together. Under these assignments of error, appellant challenges both the

sufficiency and the weight of the evidence supporting his convictions.

{¶ 58} A motion for judgment of acquittal under Crim.R. 29(A) "tests the sufficiency

of the evidence." State v. Samuel, 10th Dist. No. 11AP-158, 2011-Ohio-6821, ¶ 22, citing

State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12, citing State v. Knipp, 4th

Dist. No. 06CA641, 2006-Ohio-4704, ¶ 11. Thus, an appellate court reviews the trial court's

denial of appellant's motion for acquittal "using the same standard applicable to a

sufficiency of the evidence review." Id., citing Reddy, citing State v. Darrington, 10th Dist.

No. 06AP-160, 2006-Ohio-5042, ¶ 15. In considering a sufficiency challenge, "the test is

whether after viewing the probative evidence and inferences reasonably drawn therefrom

in the light most favorable to the prosecution, any rational trier of fact could have found all

the essential elements of the offense beyond a reasonable doubt." State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist.1983).

{¶ 59} By contrast, in considering a challenge to the manifest weight of the evidence,

a reviewing court "may not merely substitute its view for that of the trier of fact," but rather

"must review the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of witnesses and determine whether in resolving conflicts in the evidence,

the trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered." State v. Boone, 10th Dist. No.

14AP-87, 2015-Ohio-2648, ¶ 49, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

Further, "[t]he discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction." Martin at

175.

{¶ 60} We first consider appellant's contention that the state's evidence was

insufficient to convict him of complicity to commit aggravated robbery and murder. R.C.

2911.01(A) defines the offense of aggravated robbery, and states in part: "No person, in

attempting or committing a theft offense, * * * or in fleeing immediately after the attempt

or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's

person or under the offender's control and either * * * brandish it * * * or use it; * * *

(3) Inflict, or attempt to inflict, serious physical harm on another." R.C. 2903.02(B) defines

No. 19AP-61 16

the offense of murder (i.e., felony murder) as follows: "No 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."

{¶ 61} R.C. 2923.03 sets forth Ohio's complicity statute. R.C. 2923.03(A) states in

part: "No person, acting with the kind of culpability required for the commission of an

offense, shall * * * (2) Aid or abet another in committing the offense." The Supreme Court

of Ohio has held that R.C. 2923.03 "does not define 'aid or abet,' but this court has stated

that to aid or abet is ' "[t]o assist or facilitate the commission of a crime, or to promote its

accomplishment." ' " State v. McFarland, __ Ohio St.3d __, 2020-Ohio-3343, ¶ 27,

quoting State v. Johnson, 93 Ohio St.3d 240, 243 (2001), quoting Black's Law Dictionary

69 (7th Ed.Rev.1999).

{¶ 62} In order " '[t]o support a conviction for complicity by aiding and abetting

pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported,

assisted, encouraged, cooperated with, advised, or incited the principal in the commission

of the crime, and that the defendant shared the criminal intent of the principal.' " Id.,

quoting Johnson at syllabus. Further, " ' "[p]articipation in criminal intent may be inferred

from presence, companionship and conduct before and after the offense is committed." ' "

Id., quoting Johnson at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971).

{¶ 63} Appellant acknowledges the state proved his presence at the scene, but

contends it failed to prove he supported, assisted, encouraged or cooperated with Man-Man

in the offenses. According to appellant, he was unaware of Man-Man's intent to shoot the

victim.

{¶ 64} With respect to the sufficiency of the evidence to support the conviction for

aggravated robbery, the record indicates the state presented testimony by R.V. that

appellant was with Man-Man and Nutto on the date of the incident. R.V. testified that,

earlier that day, R.D. and Nutto had entered someone's house and stole a gun. Nutto and

R.D. subsequently got into an argument about "whose gun it was." (Tr. Vol. II at 231.)

Nutto then became upset when he learned R.D. had sold the gun to another individual.

{¶ 65} Later that evening, R.D. and R.V. attended a cookout, and R.D. then called

Nutto to ask if he would drive them to a hotel. Nutto arrived in a vehicle and picked up R.D.

and R.V. He then drove to a gas station and, "out of nowhere," appellant "and Man-Man

No. 19AP-61 17

came up to the car." (Tr. Vol. II at 240.) Appellant and Man-Man got inside the vehicle

with Nutto, R.V., and R.D. Nutto "told us he had to make a stop," and "[w]e * * * stopped

at Nutto's people's house." (Tr. Vol. II at 241.) Upon arriving at a residence, Nutto, ManMan, and appellant went inside, but R.D. and R.V. were told to remain outside in the car.

{¶ 66} Nutto, Man-Man, and appellant returned to the vehicle about "20 to 30

minutes" later. Nutto and Man-Man then discussed robbing someone who had just "got

some money" from receiving a monthly check. (Tr. Vol. II at 242.) Before driving to that

location, Nutto "asked did we want to go shoot up a dude named Rail's house." According

to R.V., this individual (Rail) and R.D. had "beefed with" each other previously. (Tr. Vol. II

at 246.) They arrived at an alley behind Rail's house, and R.D. had a weapon with him.

R.D. reached the weapon outside the car window, but R.V. grabbed R.D.'s weapon and told

him "we're not going to shoot up that house" because R.V. "didn't see Rail" and "there were

kids in the backyard." (Tr. Vol. II at 247.)

{¶ 67} The others in the vehicle were mad at R.V., and Nutto sped away. Nutto then

drove "to the house we [were] supposed to rob." (Tr. Vol. II at 248.) Upon arriving, Nutto

remained in the car, but Nutto "gave his gun to [appellant]." R.D. also had a gun, but ManMan did not have a weapon. R.V. tried to exit the vehicle, but R.D. told him to remain with

Nutto because the others were " 'already mad because you didn't let me shoot up Rail's

house.' " (Tr. Vol. II at 249.)

{¶ 68} Appellant, Man-Man, and R.D. then exited the vehicle and walked to the back

of the residence. A few seconds later, R.D. came running back to the car with Man-Man

following him. R.D. said "I ain't feeling it, the neighbor is outside on the front porch." ManMan, however, talked R.D. into going back, and R.D. said he would "try again." (Tr. Vol. II

at 251.) R.V. subsequently heard a loud noise, and Man-Man returned to the car and Nutto

drove away quickly. Man-Man handed Nutto "the same gun" Nutto had earlier given to

appellant. (Tr. Vol. II at 253.) R.V. demanded that Nutto stop the car and let him out. R.V.

walked back toward the residence and observed a figure "in the shadow with some shoes"

that R.V. thought resembled "the same type shoes that [appellant] was wearing," so he

"didn't go back into the backyard." (Tr. Vol. II at 254.)

{¶ 69} The state also presented the testimony of Officer Woods who, at the request

of a detective, interviewed appellant one month after the shooting. The detective requested

No. 19AP-61 18

that the officer conduct the interview because he had a prior rapport with appellant. Officer

Woods was not familiar with the case; the detective indicated "they had witnesses that

placed [appellant]" at the scene of a homicide. (Tr. Vol. III at 396.)

{¶ 70} During the interview, appellant initially "denied it," stating "I don't know

anything." (Tr. Vol. III at 398.) Appellant's eyes then "started turning * * * red," and "he

started telling [Officer Woods] about it." (Tr. Vol. III at 399.) Appellant told the officer

that "initially it was supposed to have been a robbery and pretty much it went a different

way." Appellant stated they were "only supposed to rob R.D.," and "Man-Man was the

shooter." The incident "happened over a gun." Appellant "said that he did not have a gun

and pretty much wanted a gun." (Tr. Vol. III at 400.) Earlier on the date of the incident,

R.D. and Nutto had stolen a gun from a residence, and "[t]he gun was supposed to go to

[appellant] and they ended up selling it, so [appellant] told me that Nutto called him and

told him that he'd just rob R.D. for his gun." (Tr. Vol. III at 400-01.)

{¶ 71} On the evening of the events, appellant was "somewhere near Weber [Road]

and he was picked up by Man-Man and [R.D.] and Nutto and [R.V.] and they all left and

went to * * * some street and pretty much the plan was to rob [R.D.] for the gun so that

[appellant] can get a gun." (Tr. Vol. III at 401.) Appellant told the officer the others were

"telling [R.D.] that some old man was staying around the corner who had some money and

they was going to kick in the door and pretty much rob the old man. So that's * * * the story

that was told to [R.D.] so he would go along." The house where the events occurred was

vacant, "and the plan was that's where they [were] going to rob him at, where it was dark."

Appellant told the officer the discussion of robbing an old man was "a made-up story, that

there wasn't anybody to rob. The whole plan was to rob [R.D.]." (Tr. Vol. III at 403.)

Appellant stated he was brought into the plan approximately "15 to 20 minutes" before the

incident. (Tr. Vol. III at 408.)

{¶ 72} After appellant, Man-Man, and R.D. exited the vehicle and walked toward the

back of the house, appellant's "initial thing was to * * * look to make sure nobody was

coming and he said at that time he seen Man-Man * * * raise the gun." (Tr. Vol. III at 404.)

Appellant told the officer "he said something like, '[h]old on,' * * * to make sure nobody is

coming. So [appellant] had told [Man-Man], '[h]old on,' and that's when [Man-Man] just

pulled the trigger and [appellant] heard the pop and saw [R.D.] fall." (Tr. Vol. III at 405.)

No. 19AP-61 19

At first, appellant told the officer he did not see Man-Man fire the weapon, but he later

"went back and changed his story and he said, yeah, I seen him shoot. He said, I seen his

body drop," and "he also said he [saw] the muzzle flash." (Tr. Vol. III at 404.) Appellant

told the officer R.D. was shot in the "back of the head." (Tr. Vol. III at 405.) After the shot

was fired, appellant "took off running between the houses." (Tr. Vol. III at 406.)

{¶ 73} Construing the evidence most strongly in favor of the prosecution, as

required in considering a sufficiency challenge, the record provides sufficient evidence to

support appellant's conviction for complicity to commit aggravated robbery. As set forth

above, the state presented evidence that appellant was involved in a plot to rob R.D. of his

weapon. The state's theory of the case was that appellant, Nutto, and Man-Man planned

the robbery approximately 20 to 30 minutes before the shooting incident when they went

inside "Nutto's people's" house and told the juveniles, R.D. and R.V., to remain outside.

After returning to the car, these individuals begin talking about robbing an elderly man of

a check. During the police interview, appellant told Officer Woods that the discussion of

robbing an old man was a made-up story to make R.D. go along. Appellant admitted to

Officer Woods that the plan was to rob R.D. of his weapon; specifically, appellant explained

the intent of the robbery was "so that he can get a gun." (Tr. Vol. III at 401.)

{¶ 74} When they arrived at the location of the shooting, Nutto handed his weapon

to appellant as appellant exited the vehicle. When Man-Man returned to the vehicle after

the shooting, he handed Nutto the same weapon Nutto had given to appellant moments

earlier. The victim died of a gunshot wound to the back of the head. During the police

interview, appellant drew a sketch of the scene where the events took place. Based on the

evidence presented, the jury could have reasonably concluded that appellant participated

in a plan to commit a theft offense and that a deadly weapon was either brandished or used

and/or that serious physical harm was recklessly inflicted on the victim during the theft

offense.

{¶ 75} The evidence also supported appellant's conviction for complicity to commit

felony murder. As set forth above, the state presented evidence that appellant conspired

with Nutto and Man-Man to rob R.D. so that appellant could obtain a weapon, ultimately

leading to the death of R.D. Appellant was aware that weapons were involved in the

robbery. As noted, R.V. testified that Nutto handed appellant his (Nutto's) weapon when

No. 19AP-61 20

appellant exited the vehicle at the crime scene. According to the testimony of Officer Woods

(who conducted the interview of appellant), appellant's role was to look out for anyone else

in the area. Appellant admitted to the officer that he observed Man-Man fire the weapon

to the back of the victim's head, and appellant did not flee the scene until after the shooting.

{¶ 76} While appellant contends he was unaware Man-Man was going to use the

weapon in the robbery, "the state was not required to prove that." State v. Kimble, 7th Dist.

No. 06 MA 190, 2008-Ohio-1539, ¶ 26. Rather, "[v]iolation of the complicity statute

requires that the accomplice be treated 'as though he was the one who committed every act

of the underlying principal offense.' " Id. at ¶ 27, quoting State v. Letts, 2d Dist. No. 15681

(June 22, 2001). Thus, "under Ohio's felony-murder statute, it is irrelevant whether the

killer is the defendant, an accomplice, or a third party." State v. Ford, 10th Dist. No. 07AP803, 2008-Ohio-4373, ¶ 32, citing State v. Franklin, 7th Dist. No. 06-MA-79, 2008-Ohio2264, ¶ 111. Further, "purpose to kill is not an element of the crime and need not be proven,"

as "the mens rea for felony murder is the intent that is required to commit the underlying

predicate offense." State v. Maynard, 10th Dist. No. 11AP-697, 2012-Ohio-2946, ¶ 17.

{¶ 77} Under Ohio law, a defendant can be held criminally responsible for a killing

"regardless of the identity of * * * the person whose act directly caused the death, so long as

the death is the 'proximate result' of Defendant's conduct in committing the underlying

felony offense." State v. Dixon, 2d Dist. No. 18582 (Feb. 8, 2002). The Supreme Court has

held that "[t]he offense of aggravated robbery, when committed with a loaded gun, is 'likely

to produce death.' " State v. Carter, 72 Ohio St.3d 545, 554 (1995), quoting State v. Widner,

69 Ohio St.2d 267, 270 (1982). In this respect, Ohio courts have noted that, where a

defendant is an active participant in an aggravated robbery, acting with knowledge that a

firearm is involved, a resulting death of the victim is "a direct, natural, and reasonably

foreseeable consequence of the aggravated robbery." State v. Taylor, 6th Dist. No. L-11-

1202, 2013-Ohio-5182, ¶ 38. See also State v. Jennings, 10th Dist. No. 09AP-70, 2009-

Ohio-6840, ¶ 51 (victim's death "was a reasonably foreseeable consequence of defendants'

aggravated robbery offense regardless of which of the two defendants pulled the trigger").

{¶ 78} Viewing the evidence in a light most favorable to the prosecution, a rational

trier of fact could have found that all the elements of complicity to commit aggravated

No. 19AP-61 21

robbery and murder were proven beyond a reasonable doubt. We therefore find

unpersuasive appellant's sufficiency challenge.

{¶ 79} Further, on review of the entire record, we cannot conclude the jury clearly

lost its way and created a manifest miscarriage of justice such that the convictions must be

reversed as against the manifest weight of the evidence. Here, the trier of fact could have

reasonably found credible the testimony of R.V. and Officer Woods in concluding that

appellant actively participated in a plan to rob R.D. of a weapon, and that R.D.'s death was

the proximate result of the commission of the predicate offense of aggravated robbery. See,

e.g., State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 54 (jury did not clearly lose

its way in concluding victim's death was a foreseeable result of aggravated robbery where

appellant and co-conspirators went to victim's residence armed with guns to commit

robbery); Kimble at ¶ 57 (convictions for complicity to aggravated robbery and murder not

against the manifest weight of the evidence where testimony showed appellant "assisted

knowingly in the planning of the robbery, which occurred with a gun and resulted in

[victim] getting killed from a gunshot wound").

{¶ 80} Based on the foregoing, appellant's second and third assignments of error are

not well-taken and are overruled.

{¶ 81} Under the fourth assignment of error, appellant asserts the trial court erred

in failing to provide a jury instruction on the affirmative defense of abandonment.

Appellant argues, as he did under his first assignment of error, there was sufficient evidence

to consider his withdrawal/abandonment of complicity to commit the offenses.

{¶ 82} Crim.R. 30(A) governs instructions, and states in part: "On appeal, a party

may not assign as error the giving or the failure to give any instructions unless the party

objects before the jury retires to consider its verdict, stating specifically the matter objected

to and the grounds of the objection." Where no objection is made as to the failure of a trial

court to instruct on the affirmative defense of abandonment, "this issue must be reviewed

under the plain error doctrine." State v. Musgrave, 5th Dist. No. 98CA10 (Apr. 24, 2000).

Under Ohio law, "a trial court does not err in failing to instruct the jury on an affirmative

defense where the evidence is insufficient to support the instruction." State v. Reeves, 12th

Dist. No. CA2020-01-001, 2020-Ohio-5565, ¶ 14, citing State v. Palmer, 80 Ohio St.3d 543,

564 (1997); State v. Davis, 12th Dist. No. CA2015-05-015, 2016-Ohio-1166, ¶ 35.

No. 19AP-61 22

{¶ 83} In previously addressing appellant's ineffective assistance of counsel claim,

we noted the defense's theory of the case was that appellant, while aware of a plan to rob an

unnamed individual of a check, was not aware the actual victim of the robbery was to be

R.D. Defense counsel further argued at trial that appellant did not want to be involved in a

murder. In rejecting appellant's claim that his counsel was ineffective in failing to request

an instruction on abandonment, we observed that appellant's denial of involvement was

inconsistent with a claim of abandonment. See, e.g., Fickenworth at ¶ 15 (no error in failing

to give instruction on abandonment where appellant "denied the conduct"); State v. Adair,

10th Dist. No. 86AP-23 (Nov. 18, 1986) (trial court did not err in failing to give instruction

on abandonment where appellant's argument was "not that he abandoned his complicity,"

but rather that he "did not participate at all in the crime").

{¶ 84} In addressing that claim, we also cited testimony by Officer Woods (based on

his interview with appellant) that appellant's statement telling Man-Man to "[h]old on" was

in order to "look and make sure nobody was coming" (i.e., to avoid detection as opposed to

a complete and voluntary renunciation of the crime). (Tr. Vol. III at 405-06.) Having

rejected appellant's contention that his trial counsel was ineffective in failing to request a

jury instruction on abandonment, we similarly find, in light of the defense's theory of the

case and the evidence presented, no plain error by the trial court in failing to provide an

instruction on abandonment.

{¶ 85} Appellant's fourth assignment of error is not well-taken and is overruled.

Based on the foregoing, appellant's four assignments of error are overruled,

and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.



Judgment affirmed.