FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 13 09 2503A
JENNIFER A. CUNDIFF, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
Appellant, David Phillips, appeals his convictions by the
Summit County Court of Common Pleas. This Court affirms.
On August 29, 2013, B.P. and his friend, P.W., stopped by the
Lovers Lane Market in Akron on their way to a mall. P.W. went
into the Market, but B.P. waited in the driver's seat of
his borrowed car. B.P., who held a valid permit to carry a
concealed weapon, sat with a firearm in his lap because it
was his practice to carry a gun whenever he went out.
Although the weapon was not secured on his person, the safety
was in place. It was a hot day, and B.P. left the car windows
open. Some people whose faces were familiar to B.P.
approached the vehicle and spoke to him through the passenger
window. As they walked away, he turned toward the
driver's side window to find R.L., a minor, raising a
gun. R.L. simultaneously pointed his gun at B.P., grabbed the
firearm from B.P.'s lap, and demanded
"everything" B.P. had.
B.P. pushed the car door open and, as he tried to deescalate
the situation, noticed that other people were approaching.
One man gestured in a way that B.P. interpreted as a sign
that he was the wrong person. Around the same time, P.W.
returned to the car. As P.W. approached, B.P. attempted to
grab the gunman's weapon. During the struggle that
followed, the gunman shot B.P. in the abdomen. Before he fled
the scene, B.P. saw that the gunman had trained both weapons
on P.W. When he glanced back toward the vehicle, a group of
men had surrounded P.W.
P.W. sustained two gunshot wounds and, after being shot, was
beaten by the gathered men. The group dispersed after a
passing driver honked his horn, but P.W. died before first
responders arrived on the scene. Phillips was identified as
one of the men who participated in the assault on P.W. after
the shooting, and police learned from surveillance video that
Phillips had been in and around the Market with the shooter
and other participants beforehand. Phillips was charged with
murder in violation of R.C. 2903.02(A), felony murder in
violation of R.C. 2903.02(B), aggravated robbery in violation
of R.C. 2911.01(A)(1) and (A)(3), felonious assault in
violation of R.C. 2903.11(A)(1), and participating in a
criminal gang. The charges were accompanied by firearm,
repeat violent offender, and criminal gang activity
A jury found Phillips guilty as an accomplice of felony
murder, aggravated robbery in violation of R.C.
2911.01(A)(1), felonious assault, and the firearm
specifications that accompanied each of those charges. The
trial court merged the convictions for complicity to commit
felonious assault and felony murder, sentenced him to
consecutive prison terms of fifteen years to life for
complicity to commit felony murder, three years for the
firearm specification, and eleven years for complicity to
commit aggravated robbery. The trial court also concluded
that Phillips was a repeat violent offender and imposed an
additional prison term of six years. After trial, Phillips
pleaded guilty to the charge of participating in a criminal
gang, which had been severed from the other charges for trial
to the bench. The trial court sentenced him to two years in
prison on that charge. Phillips filed this appeal.
OF ERROR I
PROSECUTION PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT
PHILLIP'S [SIC] CONVICTIONS.
Phillips' first assignment of error is that his
convictions are based on insufficient evidence. Specifically,
he has argued that the State did not present any evidence
that could lead to the conclusion that was complicit in the
commission of an aggravated robbery of P.W. He has also
argued that it follows that there is not sufficient evidence