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State v. Tyus

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

STATE OF OHIO, Plaintiff-Appellee,
D'ANGELO JAMAR TYUS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633607-A


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael Lisk and Michael Barth, Assistant Prosecuting Attorneys, for appellee.

          Louis E. Grube, for appellant.



         {¶ 1} D'Angelo Jamar Tyus appeals his convictions for robbery, abduction, and theft entered upon a jury verdict of guilt. The trial court imposed a three-year, aggregate term of imprisonment. We affirm.

         {¶ 2} Tyus and codefendant Myranda Hyde knew the victim. The three were together at a pavilion behind a church in Parma Heights, Ohio, sharing an alcoholic beverage. Surveillance video captured the entire encounter. According to the victim, Tyus and Hyde were angered by comments the victim made earlier in the day. After a brief period of conversation, Tyus and Hyde physically attacked the victim for approximately 30 minutes. The assault was interspersed with Tyus and Hyde rummaging through the victim's possessions and concluded with the codefendants walking away after Tyus took a cigarette or other similar tobacco product from the victim's possession. After the attack ceased, the victim's cell phone, pocket change, and some of his tobacco products were determined to be missing. Hyde was found in possession of the victim's cell phone and had used it to harass the victim and his friend following the attack.

         {¶ 3} During the jury's deliberation, the jury foreman asked the trial court for clarification on the definition of robbery that was provided in the general instructions. The trial court provided a written response, but it does not appear from the record that the parties were offered an opportunity to review the response before it was sent to the jury. The jury was then in possession of the original instructions and the trial court's written response in continuing its deliberation.

         {¶ 4} In this appeal, Tyus claims that the trial court erred by giving an incorrect and misleading instruction on the elements of robbery that ultimately confused the jury.

         {¶ 5} It is well settled that "[j]ury instructions must 'correctly and completely state the law.'" State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 123, quoting Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 32. In reviewing jury instructions, it must be decided "not only whether the instruction at issue is correct in the abstract but also whether it is potentially misleading." Id., citing State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 52. If an appellate court concludes that an instruction is ambiguous, it must then be determined "'whether there is a reasonable likelihood that the jury has applied [it] in a way' that violates the Constitution." Id., quoting Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). No single instruction should be reviewed in isolation. Id. The particular jury instruction being challenged must be viewed "in the context of the overall charge." Id., citing State v. Madrigal, 87 Ohio St.3d 378, 396, 2000-Ohio-448, 721 N.E.2d 52.

         {¶ 6} The jury was initially instructed that before it could find Tyus guilty of robbery, it must be found, beyond a reasonable doubt, that Tyus "while attempting or committing a theft offense, or in fleeing immediately after a theft attempt or offense, * * * did inflict or attempt to inflict or threaten to inflict physical harm" on the victim. (Emphasis added.) In seeking clarification, the jury asked the trial court the following question: "[i]n the definition [of robbery], does it mean the 'attempting or committing a theft offense must come [first], or be the primary aim of the defendant? Or [sic] does it include the act at 'any point' during the altercation?" The trial court offered the following response:

[t]he statute permits you to consider alternate methods for the physical harm element - i.e., inflicting, attempting to inflict or threatening to inflict physical harm - and alternate methods for the temporal requirement - i.e., during or in fleeing immediately after. The statute does not require you to decide the "primary aim" or that events happened in any particular order. It only requires that you must find all elements beyond a reasonable doubt.

(Emphasis added.)

         {¶ 7} Tyus claims that the jury was permitted to conclude that the theft occurred as a mere afterthought to the undisputed infliction of physical harm that occurred throughout the victim's ordeal. According to Tyus, the theft of the tobacco product as he was departing did not occur concurrent with the infliction of physical harm and the ...

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