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State v. Phillips

Court of Appeals of Ohio, Ninth District, Summit

March 31, 2017

STATE OF OHIO Appellee
v.
DAVID P. PHILLIPS Appellant

         APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          CARR, PRESIDING JUDGE.

         {¶1} Appellant, David Phillips, appeals his convictions by the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 specifications.

         {¶5} 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.

         II.

         ASSIGNMENT OF ERROR I

         THE PROSECUTION PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT PHILLIP'S [SIC] CONVICTIONS.

         {¶6} 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 ...


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