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State of Ohio v. Benjamin Williams

October 27, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BENJAMIN WILLIAMS DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-532133

The opinion of the court was delivered by: Eileen A. Gallagher, J.:

Cite as State v. Williams,

[Please see original opinion at 2011-Ohio-4812.]

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

BEFORE: E. Gallagher, J., Blackmon, P.J., and Keough, J.

RELEASED AND JOURNALIZED:

ON RECONSIDERATION*fn1

{¶1} Defendant-appellant, Benjamin Williams, appeals from his convictions in the Cuyahoga County Court of Common Pleas. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

{¶2} Appellant was indicted on December 29, 2009, and charged with aggravated murder in violation of R.C. 2903.01(A)(Count 1), aggravated murder in violation of R.C. 2903.01(B) (Count 2), aggravated robbery in violation of R.C. 2911.01(A)(1) (Count 3), aggravated robbery in violation of R.C. 2911.01(A)(3) (Count 4), and discharge of a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3) (Count 5). One- and three-year gun specifications pursuant to R.C. 2941.141(A) and 2941.145(A), respectively, were attached to all five counts.

{¶3} Count 5 was voluntarily dismissed by the state prior to trial that commenced on July 6, 2010. The jury returned a verdict of not guilty on Counts 1 and 3 as well as to the lesser included offense of murder under Count 1. The jury found appellant guilty of aggravated murder as to Count 2 and guilty of aggravated robbery as to Count 4. The jury further found appellant not guilty of the gun specifications on Counts 2 and 4.

{¶4} On September 8, 2010, prison terms of life with parole eligibility after 30 years on Count 2 and ten years on Count 4 were imposed. The trial court ordered the sentences to run concurrently. Appellant brought the present appeal raising the nine assignments of error contained in the appendix to this opinion.

{¶5} In his first assignment of error, appellant posits that the State failed to present sufficient evidence that he committed the crimes of aggravated robbery and aggravated murder.

{¶6} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus (superseded by statute and constitutional amendment on other grounds). A reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541, (Cook, J., concurring).

{¶7} Appellant was convicted of aggravated murder as charged in Count 2 in violation of R.C. 2903.01(B). Pursuant to R.C. 2903.01(B), "[n]o person shall purposely cause the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, * * * aggravated robbery * * *. "

{¶8} Appellant was also convicted of aggravated robbery as charged in Count 4 in violation of R.C. 2911.01(A)(3), which provides that, "[n]o person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following: * * * (3) Inflict, or attempt to inflict, serious physical harm on another."

{¶9} Although theft requires that the accused actually obtain or exert control over the property, attempted theft has no such requirement. R.C. 2923.02(A) defines attempt as "conduct that, if successful, would constitute or result in the offense." "Criminal attempt" is an act or omission constituting a substantial step in a course of conduct planned to culminate in the actor's commission of the crime but that falls short of completion of the crime. State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, at ¶101, citing State v. Woods (1976), 48 Ohio St.2d 127, 357 N.E.2d 1059, paragraph one of the syllabus, overruled in part on other grounds by State v. Downs (1977), 51 Ohio St.2d 47, 53, 364 N.E.2d 1140. A "substantial step" requires conduct that is "strongly corroborative of the actor's criminal purpose." Id.

{¶10} The elements of an offense may be established by direct evidence, circumstantial evidence or both. State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674. Circumstantial evidence is defined as, "'[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought proved. * * * '" State v. Nicely (1988), 39 Ohio St.3d 147, 150, 529 N.E.2d 1236, quoting Black's Law Dictionary (5th Ed.1979) 221. Circumstantial and direct evidence are of equal evidentiary value. State v. Jenks (1991), 61 Ohio St.3d 259, 272, 574 N.E.2d 492.

{¶11} The following relevant facts were adduced at trial: James Zagorski was shot the night of September 15, 2008, in the parking lot of a Food Plus convenient store situated at Glendale and Lee Road in Cuyahoga County. Zagorski was transported, via ambulance, to Metro Hospital where he was pronounced dead at 10:05 p.m. Zagorski had intended to rendevous with Kevin Warner that night in order to purchase marijuana from Warner. Warner was working at a nearby Popeye's Chicken at the time Zagorski arrived in the area and, therefore, he could not immediately conduct the sale. Zagorski waited for Warner, in his car, in the parking lot of the Food Plus convenient store.

{¶12} Passing witnesses observed a number of young men congregating on the side of the Food Plus store near Zagorski's car and one witness heard gunshots and then saw the young men dispersing. Shortly after the gunshots, witnesses observed Zagorski's car move from the side of the Food Plus building and crash into a nearby pole.

{¶13} An autopsy performed by the Cuyahoga County Coroner's Office established that Zagorski died from a single gunshot wound to the chest. Forensics established that the fatal shot was fired from the driver's side of Zagorski's car.

{¶14} In Zagorski's vehicle police found $60 and two pill bottles containing marijuana. At Metro Hospital, $1,212.18 was recovered from Zagorski's person.

{¶15} At trial, circumstantial evidence was presented that appellant attempted to commit a theft offense and in so doing inflicted serious physical harm upon Zagorski.

Evidence was presented that, in the course of the attempted aggravated robbery, appellant purposely caused the death of Zagorski. Police found discarded cigar tips and saliva at the scene from which DNA was recovered. That DNA placed witnesses Daquan Jackson and Jermaine Jefferson in the group of young men who were present at the scene of the crime.

{¶16} Jackson and Jefferson both placed appellant at the scene of the crime when Zagorski was shot. Jefferson testified that the group of young men observed Zagorski waiting in his car and that there was a discussion about robbing Zagorski. Jefferson testified that appellant stated that he wanted to rob Zagorski and that appellant turned and began to approach Zagorski's car when Jefferson walked away to avoid the situation.

Jackson testified that when he left appellant was standing roughly four or five feet away from the passenger side of Zagorski's car. Both Jefferson and Jackson testified to hearing a gunshot a short time later. Jefferson testified that appellant told him "that he wasn't like supposed to have killed him or shot him or anything" which, when considered in a light most favorable to the prosecution, provides circumstantial evidence that Zagorski was shot by appellant during a failed robbery.*fn2

{¶17} Appellant cites State v. Scott, Cuyahoga App. No. 83477, 2004-Ohio-4631, for the proposition that "mere words" by a defendant expressing an intent to take something do not "constitute a substantial step in the commission of a theft offense so as to support a conviction for aggravated robbery" and aggravated felony murder. Scott is distinguishable from the case sub judice, however. In Scott, the defendant believed that one man among a group of men had stolen his jacket. Scott, and the witnesses who later testified against him, followed the group of men but eventually lost sight of the man Scott believed to be in possession of his property. Scott told witnesses that he intended to steal a jacket from another man in the group. However, when Scott confronted the man, Scott immediately opened fire with a handgun and made no effort to commit a theft offense. We noted in Scott that, despite his previously stated intentions, the defendant "made no attempt to deprive [the victim] of any property either before or after this senseless foray." The evidence suggested it was more likely that Scott was "seeking revenge in any form, but settled on inflicting fatal gunshot wounds rather than the pursuit of [the victim's] jacket." We concluded that, "[a]s such, appellant's mere words to the effect that he would take [the victim's] jacket did not constitute a substantial step in the commission of a theft offense so as to support a conviction for aggravated robbery." Id. at ¶14.

{¶18} In the present case, unlike Scott, there is evidence that a theft was attempted but went awry. Appellant expressed his intent to rob Zagorski. Jefferson saw appellant approach Zagorski's car and did not hear a gunshot until at least a minute later. Finally, Jefferson's conversation with appellant after the shooting is circumstantial evidence that an attempted theft occurred.

{¶19} Viewing the above evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of aggravated robbery and aggravated murder proven beyond a reasonable doubt.

{¶20} Appellant's first assignment of error is overruled.

{¶21} As appellant's fourth assignment of error is, in essence, a sufficiency challenge, we briefly address it out of order here. Appellant argues that he did not receive a fair trial as required by due process because the jury failed to follow the trial court's jury instructions. Appellant's indictment charged him as the principal offender, not as an accomplice pursuant to the complicity statute, R.C. 2923.03. The State did not request and the trial court did not provide the jury with a complicity instruction. Appellant argues that absent a complicity instruction, the jury could not convict him based on its own theory that he was complicit in the murder, although he did not actually commit it.

{¶22} Appellant's argument in this instance is essentially a sufficiency challenge. Appellant's arguments rely on his assertion that the State did not present sufficient evidence that he shot Zagorski. Appellant cites State v. Frost, 164 Ohio App.3d 61, 2005-Ohio-5510, 841 N.E.2d 336, for the proposition that in the absence of a complicity instruction, he cannot be convicted as an aider and abettor. Appellant's reliance on Frost is misplaced. In Frost, unlike the present case, the defendant was tried under the theory that he was an accomplice. The State provided sufficient evidence that Frost was an accomplice to robbery and that his co-defendant, Walton, was the principal. The trial court, however, instructed the jury as though Frost had been a principal and did not provide the jury with an instruction on aiding and abetting, as requested by the State. The Second District Court of Appeals reversed Frost's conviction for robbery because the record was devoid of any evidence to support Frost's conviction as a principal in the crime.

{¶23} In the present case, unlike Frost, viewing the evidence in a light most favorable to the prosecution, the state presented sufficient evidence, as discussed above, that appellant was the principal offender in both of the crimes for which he was convicted.

{¶24} Appellant's fourth assignment of error is overruled.

{¶25} Appellant argues in his second assignment of error that his convictions were against the manifest weight of the evidence. The question to be answered when a manifest-weight issue is raised is whether "there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." (Internal citations and quotations omitted.) State v. Leonard, 104 Ohio St.3d 54, 68, 2004-Ohio-6235, 818 N.E.2d 229.

{¶26} The weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. Where a judgment is supported by competent, credible evidence going to all essential elements to be proven, the judgment will not be reversed as being against the manifest weight of the evidence. State v. Annable, Cuyahoga App. No. 94775, 2011-Ohio-2029, at ¶60, citing State v. Mattison (1985), 23 Ohio App.3d 10, 14, 490 N.E.2d 926. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

{¶27} After reviewing the entire record, considering the credibility of the witnesses and weighing the evidence, we find that the jury clearly lost its way in resolving conflicts in the evidence, and a manifest miscarriage of justice resulted. The record lacks consistent, credible evidence to support the jury's verdict that appellant was guilty of aggravated robbery and aggravated murder.

{¶28} As discussed above, appellant was indicted and tried as the principal offender in the alleged crimes, not as an accomplice. Though the state presented sufficient evidence to support appellant's convictions, the weight of the evidence clearly favored the conclusion that appellant was not the principal offender of these crimes.

{¶29} We reach this conclusion based upon the fact that the appellant was not linked to the crime or crime scene by any tangible evidence. The only link between appellant and the shooting was the testimony of Jackson and Jefferson. Neither Jackson nor Jefferson came forward and provided statements to police until after DNA evidence had physically linked each of them to the crime scene. The credibility of both of these witnesses was called into question at trial. Jackson had previously been convicted of a felony and contradicted, at trial, his prior accounts of which specific individuals were present at the crime scene on the night of the shooting. Jefferson initially lied to police and claimed that he did not see anything the night of the shooting. Only after Jefferson's DNA was tied to the crime scene, and he was threatened with a charge of obstructing justice, did Jefferson implicate appellant in Zagorski's shooting. Both Jackson and Jefferson testified that they conveniently left the scene moments prior to the shooting despite third-party testimony that multiple young men fled the scene just after the gunshots were heard. Neither witness saw appellant with a gun the night of the shooting and no witness saw appellant shoot Zagorski.

{ΒΆ30} Finally, forensic evidence established that Zagorski was shot from just outside the driver's side of his car. Incongruously, Jackson placed appellant on the passenger side of Zagorski's vehicle just prior to the shooting. This inconsistency particularly stands out in light of Jefferson's testimony. As discussed above, Jefferson's recounting of appellant's alleged statement, "that he wasn't like supposed to have killed him or shot him or anything" was ambiguous ...


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