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State v. Pryor

Court of Appeals of Ohio, Third District, Allen

December 11, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JEREMY L. PRYOR, DEFENDANT-APPELLANT.

         Appeal from Allen County Common Pleas Court Trial Court No. CR2016 0467

          Kenneth J. Rexford for Appellant

          Jana E. Emerick for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Jeremy Pryor ("Pryor"), brings this appeal from the April 13, 2017, judgment of the Allen County Common Pleas Court sentencing Pryor to an aggregate 10-year prison term after he was convicted by a jury of two counts of Complicity to Felonious Assault in violation of R.C. 2903.11(A)(2), both felonies of the second degree and both containing firearm specifications pursuant to R.C. 2941.145(A), one count of Complicity to Aggravated Robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree, also containing a firearm specification pursuant to R.C. 2941.145(A), and one count of Carrying a Concealed Weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. On appeal, Pryor argues that his convictions were not supported by sufficient evidence, that the convictions were against the manifest weight of the evidence, that he received ineffective assistance of counsel, that the trial court failed to properly instruct the jury, that the trial court erred by failing to merge certain counts for the purposes of sentencing, and that the trial court erred in imposing consecutive sentences.

         Procedural History

         {¶2} On December 15, 2016, Pryor was indicted for two counts of Felonious Assault in violation of R.C. 2903.11(A)(2), both felonies of the second degree and both containing firearm specifications, two counts of Aggravated Robbery in violation of R.C. 2911.01(A)(1), both felonies of the first degree and both containing firearm specifications, and one count of Carrying a Concealed Weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. Pryor pled not guilty to the charges.

         {¶3} On February 7-8, 2017, Pryor's case proceeded to a jury trial. Just prior to the beginning of the trial, the State dismissed one of the Aggravated Robbery counts against Pryor. The trial proceeded on the remaining counts, with the State calling 10 witnesses and entering multiple exhibits into evidence including surveillance video of the incident. The State argued that Pryor was guilty of the Felonious Assaults and the Aggravated Robbery under a Complicity theory for either soliciting or aiding and abetting Brandon Bolden in committing the offenses. Pryor then presented his case-in-chief, testifying on his own behalf as the sole witness for the defense. Ultimately the jury found Pryor guilty of all four of the remaining counts against him.

         {¶4} On April 13, 2017, a sentencing hearing was held. Pryor was ordered to serve 2 years in prison on each of the Felonious Assault convictions, consecutive to each other, and 3 years in prison on each of the firearm specifications, consecutive to each other, and consecutive to the prison terms from the Felonious Assault convictions. Pryor was also ordered to serve 3 years in prison on the Aggravated Robbery conviction and 12 months in prison on the Carrying a Concealed Weapon conviction; however, both of those prison terms were ordered to be served concurrent to the remaining charges. A judgment entry memorializing Pryor's sentence was filed the same day of the sentencing hearing.

         {¶5} It is from this judgment that Pryor appeals, asserting the following assignments of error for our review.

Assignment of Error No. 1 The conviction for Carrying a Concealed Weapon was not supported by sufficient evidence.


Assignment of Error No. 2 The conviction for Carrying a Concealed Weapon was against the manifest weight of the evidence.


Assignment of Error No. 3 The Trial Court erred and denied to Mr. Pryor his right to a fair trial by jury by not properly instructing the jury as to complicity.


Assignment of Error No. 4 The complicity convictions were not supported by sufficient evidence.


Assignment of Error No. 5 The complicity convictions were against the manifest weight of the evidence.


Assignment of Error No. 6 Mr. Pryor was denied the effective assistance of counsel.


Assignment of Error No. 7 The trial Court erred in denying the defense motion to merge Counts I and II with Count III.


Assignment of Error No. 8 The Trial Court erred in imposing consecutive sentences as to Counts I and II.


         {¶6} We elect to address some of the assignments of error together, and out of the order in which they were raised.

         First, Second, Fourth, and Fifth Assignments of Error

         {¶7} In his first and fourth assignments of error, Pryor argues that there was insufficient evidence presented to convict him of both counts of Complicity to Felonious Assault, of Complicity to Aggravated Robbery, and of Carrying a Concealed Weapon. In his second and fifth assignments of error, Pryor argues that even if his convictions were supported by sufficient evidence, they were against the manifest weight of the evidence.

         Standard of Review

         {¶8} Whether there is legally sufficient evidence to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency challenge, " '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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

         {¶9} By contrast, in reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a "thirteenth juror" and examines the conflicting testimony. Thompkins at 387. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id. Furthermore, "[t]o reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required." Thompkins at paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).

         Trial Testimony

         {¶10} At trial, the State presented the testimony of Javionte Gilcrease and Devante Neal who were shot in the early afternoon hours of January 1, 2016, as they were walking home from a nearby gas station. Gilcrease and Neal had gone to the gas station to purchase tobacco products.

         {¶11} Three men-Pryor, Brandon Bolden, and Alundrous Sanders-left the gas station together on foot shortly before Gilcrease and Neal. Gilcrease testified that as he and Neal were coming up behind the three men, the three men slowed down. Gilcrease indicated that he saw Pryor-whom he did not know at the time but identified at trial-hand a gun to a man later identified as Brandon Bolden. Bolden then immediately approached Gilcrease and Neal, pointed the gun at them, and told them to empty their pockets. Gilcrease told Bolden he did not have anything, and Bolden said "Do you think I'm playing?" and then shot Gilcrease in the leg. (Feb. 7, 2017, Tr. at 161).

         {¶12} When Bolden shot Gilcrease, Neal started to run in the opposite direction. Bolden fired several shots at Neal, striking him in the leg as well. Neal was able to make it to a nearby residence to get help.

         {¶13} While Gilcrease was on the ground after being shot in the leg, Bolden stepped over him and took his cell phone, then ran off. Pryor and Sanders had started to run toward Sanders's residence when Bolden began shooting. Gilcrease and Neal were both taken to the hospital and treated for their injuries.

         {¶14} Officers responded to the area and learned from a witness on the street that three black males had been observed running from the scene to a house at 821 Madison in Lima, which was approximately two blocks from the gas station. Officers were let into the residence by the owner, Kimberly Van Meter. When the officers entered the residence, Pryor was coming upstairs from the basement. Pryor was detained at that time and as officers checked the basement they found a handgun in plain view partially hidden under a rock. The handgun was loaded, had a round in the chamber and seven bullets in the magazine. Officers noticed that there were muddy boot prints that led from the basement where the gun was found to the chair where police had Pryor take a seat. Pryor was wearing muddy shoes at the time.

         {¶15} Officers located seven spent shell casings from the scene of the shooting. BCI determined that the casings had been fired from the gun that had been located in the basement of 821 Madison. Further testing revealed the handgun's serial number, which had been scratched off on the surface. The serial number was then checked and it was learned that Pryor was the registered owner of the firearm, having purchased it from MC Sports in Lima in May of 2015.

         {¶16} Bolden, the shooter, was located in the alley behind the residence at 821 Madison. After he was detained, Gilcrease's cell phone was found in Bolden's pocket.

         {¶17} Surveillance footage from the gas station was entered into evidence and played for the jury. It showed Bolden, Pryor and Sanders walking to the gas station, going inside, and then making a purchase. From the interior surveillance video a Lima Police detective was able to readily identify Pryor and Bolden from prior dealings. After the business at the gas station was complete, the three spoke with a man outside for a short time, then began walking off.

         {¶18} The surveillance footage showed Gilcrease and Neal walk up to the gas station, then exit the gas station. It then showed Gilcrease and Neal walking in the same direction as Bolden, Pryor and Sanders. It also showed Pryor moving close to Bolden shortly before Bolden approached Gilcrease and Neal. Pryor handing Bolden a gun cannot clearly be seen in the video due to the distance from the surveillance camera, but the two were momentarily close together and Gilcrease testified that he saw Pryor give Bolden the handgun that was used in the shooting. Gilcrease identified the moment on the video where he saw the transfer.

         {¶19} After the State rested its case, Pryor took the stand in his own defense. Pryor testified that he had originally purchased the firearm in question but the firearm went missing sometime in late 2015 prior to the shooting. Pryor testified that he did not give the gun to Bolden, that he did not in any manner support or encourage Bolden to commit a robbery, let alone shoot anyone, and that when Bolden started shooting he started running.

         Sufficiency of the Evidence

         {¶20} On appeal, in his first and fourth assignments of error, Pryor argues that the State presented insufficient evidence to convict him of Complicity to Felonious Assault of both Gilcrease and Neal, that the State presented insufficient evidence to convict him of Complicity to Aggravated Robbery of Gilcrease, and that the State presented insufficient evidence to convict him of Carrying a Concealed Weapon.

         {¶21} As argued in this case, Complicity is codified in R.C. 2923.03, which reads,

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:


(1) Solicit or procure another to commit the ...

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