State v. Robinson

[Cite as State v. Robinson, 2019-Ohio-558.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 17AP-853

(C.P.C. No. 16CR-6326)

v. :

(REGULAR CALENDAR)

Anthony Robinson, :

Defendant-Appellant. :

D E C I S I O N

Rendered on February 14, 2019

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie

Swanson, for appellee.

On brief: Brian J. Rigg, for appellant.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Anthony Robinson, from a

judgment of conviction and sentence entered by the Franklin County Court of Common

Pleas following a jury trial in which he was found guilty of murder.

{¶ 2} On November 14, 2016, appellant was indicted on one count of kidnapping,

in violation of R.C. 2905.01, two counts of aggravated murder, in violation of R.C.

2903.01, two counts of murder, in violation of R.C. 2903.02, and one count of tampering

with evidence, in violation of R.C. 2921.12. Each count also carried a firearm specification.

The indictment, which also named Jason J. Hicks as a defendant in Counts 1 through 5,

arose out of the shooting death of Anthony Brown on October 12, 2016.

No. 17AP-853 2

{¶ 3} Appellant's case came for trial before a jury beginning October 23, 2017.

Prior to trial, plaintiff-appellee, State of Ohio, requested a dismissal of Counts 1

(kidnapping) and 2 (aggravated murder). The state also requested an amendment of

Count 5 (felony murder) to allege only that the murder was the proximate result of the

offender committing a felonious assault.

{¶ 4} The first witness for the state was Columbus Police Officer Heidi Graber.

On October 12, 2016, at 11:57 a.m., Officer Graber was dispatched to 480 East Markison

Avenue following a report of shots fired in the area. On arrival, Officer Graber observed a

man "laying in the alley" bleeding from the mouth and chest. (Tr. Vol. II at 41.) The

officer subsequently learned the individual, identified as Anthony Brown, resided at 480

East Markison Avenue. The back door of Brown's residence was open. The front door

"had been shot through, but it was still closed, and the dead bolt was on." (Tr. Vol. II at

42-43.) The residence is part of a duplex.

{¶ 5} Columbus Police Officer Lisa Swisher is a member of the department's

crime scene search unit. On October 12, 2016, Officer Swisher was dispatched to 480 East

Markison Avenue to photograph the crime scene and collect evidence. Officer Swisher

identified photographs of two bullet holes on the east side of 478 East Markison Avenue.

The officer also identified a grill, located at the back of 522 East Markison Avenue, where

a .40 caliber "Glock 23 generation 4" handgun had been recovered. (Tr. Vol. II at 105.)

The weapon's slide mechanism was in the back position, indicating "all the bullets have

been fired and it has locked to the rear." (Tr. Vol. II at 106.) Officer Swisher prepared a

diagram depicting various .40 caliber and .45 caliber shell casings found near the crime

scene.

{¶ 6} Demetri Robinson testified that he is a friend of Max Holder; Demetri owns

a mobile food cart, and Holder assisted him with the cart. Holder resided at 480 East

Markison Avenue with Brown, also known as "Tone." (Tr. Vol. II at 153.)

{¶ 7} On October 12, 2016, at approximately 11:30 a.m., Demetri drove to 480

East Markison Avenue to pick up Holder. As Demetri arrived at the residence, "another

car pulled" up in front of him. (Tr. Vol. II at 154.) Demetri described the vehicle as a

Chevrolet Impala, either dark blue or black in color; the vehicle had Tennessee license

plates. There were four individuals inside the vehicle. Holder "came from around the

No. 17AP-853 3

house, and he like waved to me or something." (Tr. Vol. II at 155.) Demetri testified

Holder was gesturing "[l]ike one minute, * * * just give me a second." (Tr. Vol. II at 158-

59.) Holder "went up to the car, and he said something to them." (Tr. Vol. II at 155.)

Holder then "comes back to my car * * * and he said something to me through the

window. Then he goes back to them." (Tr. Vol. II at 159.)

{¶ 8} Two men exited the Impala and began talking to Holder. Demetri could not

hear the conversation but Holder appeared to be trying to explain something to them.

Demetri testified: "After that he doesn't say anything to me, and he goes and gets in the

car. And he gets in the middle in the backseat." (Tr. Vol. II at 160.) Demetri thought "it

didn't feel right," especially since Holder was supposed to accompany him to set up the

food cart. Demetri decided to follow the vehicle to find out "what's going on." (Tr. Vol. II

at 161.) Demetri followed the vehicle to a Kroger grocery store on Parsons Avenue.

{¶ 9} On arriving at the store, Holder and "the big guy got out of the car and went

inside." (Tr. Vol. II at 162.) Demetri parked his vehicle and then followed them inside the

store. Demetri testified "somebody else from out of the car followed me in. Once they

seen me going in, they followed me in." (Tr. Vol. II at 163.) Demetri purchased some

items and spoke with Holder, who "told me to meet him * * * back at the house." (Tr. Vol.

II at 162.) Demetri drove to the neighborhood but did not stop to pick up Holder

"because the whole neighborhood said that Tone * * * got killed, got shot at the time." (Tr.

Vol. II at 189.)

{¶ 10} Charles Mowery testified that he sometimes stays at 478 East Markison

Avenue. Mowery knew a number of people in the neighborhood, including appellant.

According to Mowery, appellant was "in and out of 478 a lot." (Tr. Vol. II at 227.) On the

morning of October 12, 2016, Mowery spoke to appellant in front of the residences at 478

and 480 East Markison Avenue. Appellant asked Mowery to "go to the store to pick him

up a pack of cigarettes." Mowery asked appellant "why he couldn't do it. And he told me

he was waiting on somebody and he couldn't miss them." Appellant was wearing a "black

hoodie." (Tr. Vol. II at 199.) Mowery went to a nearby store and bought some cigarettes.

When Mowery returned, appellant was still in front of the duplex on East Markison

Avenue.

No. 17AP-853 4

{¶ 11} Approximately one-half hour later, Mowery was inside the residence at 478

Markison Avenue when he heard gunfire. One of the bullets struck the inside of 478

Markison Avenue, and Mowery "heard some glass breaking." (Tr. Vol. II at 202.)

Mowery initially hid behind a refrigerator. He then got up and looked "out back" and

observed a "dark gray or * * * a black-colored car, a sedan." (Tr. Vol. II at 203, 204.)

Mowery observed four black males "out back. Three of them were getting into the car.

One guy was running eastbound down the alley, and they backed out and headed north

going towards Southwood." (Tr. Vol. II at 204.) One of the individuals "was wearing a

black hoodie." (Tr. Vol. II at 239.)

{¶ 12} In October 2016, Alphonse Williams, whose nickname is "Big Al," resided at

483 Southwood Avenue, approximately one-half block from East Markison Avenue. (Tr.

Vol. III at 258.) Brown, also known as "Tone," was a friend of Williams. (Tr. Vol. III at

261.)

{¶ 13} On the morning of October 12, 2016, Brown walked over to visit Williams.

Brown was "a little frantic, and he was telling me a story about he think somebody circling

his block." (Tr. Vol. III at 263.) Brown was "acting afraid and frantic." Brown asked

Williams to "come over and check, and I was like all right." Both men walked to Brown's

residence and "[c]hecked the inside. Went through the front. Checked. Didn't see

nothing." (Tr. Vol. III at 265.) Williams remained for approximately 15 minutes and then

returned to his residence.

{¶ 14} After returning to his residence, Williams "[h]eard shots." (Tr. Vol. III at

267.) He "ran out to the alley, and * * * could hear the pow, pow, pow, pow, pow, pow,

pow." (Tr. Vol. III at 268.) The shots were coming from the direction of "Tone's house."

(Tr. Vol. III at 269.) Williams "could see guys shooting," and he "could hear Tone

screaming." (Tr. Vol. III at 270.) Williams observed a Chevrolet Impala "come down the

alley from where Tone's house was." (Tr. Vol. III at 270.) The car windows were tinted,

and he thought there might be "four or five people" inside the vehicle. (Tr. Vol. III at 271.)

Williams did not observe any other vehicles in the alley at the time.

{¶ 15} After the vehicle left the area, Williams "could see a body laying in the

alley." (Tr. Vol. III at 271.) A number of neighbors came over to the area. Williams dialed

911 and told the dispatcher he observed four black males in a vehicle.

No. 17AP-853 5

{¶ 16} In October 2016, Monha Cooper resided at 482 East Markison Avenue.

According to Cooper, the neighborhood had problems with drugs and weapons. Cooper

knew Brown, who lived in the other half of the "double" or duplex. (Tr. Vol. III at 294.)

Cooper also knew "Max," who resided with Brown. (Tr. Vol. III at 296.) Cooper testified

Brown had a surveillance camera system at his residence. Cooper also knew appellant,

who previously resided at 482 East Markison Avenue with his brother before Cooper

moved there. Although appellant had moved, "he still came to the neighborhood" with his

brother. Cooper would see appellant in the neighborhood "[a]bout every day." (Tr. Vol.

III at 297.)

{¶ 17} On October 12, 2016, Cooper was inside her residence when she observed

three individuals, including appellant, walking "by my side window." Cooper recognized

appellant and Holder, but had "never seen the heavyset guy before." (Tr. Vol. III at 300.)

The men had come "from the back" area of the duplex. (Tr. Vol. III at 301.) Cooper then

looked out the front door and observed that "they went into the front yard by Tony's

house." (Tr. Vol. III at 300.)

{¶ 18} Cooper heard gunshots "[a]bout a minute later." Cooper initially heard five

or six shots, and she "hit the ground and covered [her] head." (Tr. Vol. III at 302.) The

shots were coming from next door, toward the front of the house. Cooper thought she

may have heard a couple more shots after she fell to the ground.

{¶ 19} After the shooting ended, Cooper went to the back door of her residence and

observed a "dark car * * * on my side of the parking [area]. And a guy ran down the back

alley with something, came back, [and] jumped in the car." (Tr. Vol. III at 303.) The

individual running down the alley was dressed in "black clothing." Cooper testified that

the "heavyset guy jumped in the driver's seat, and the guy that ran down the alley jumped

in the back." (Tr. Vol. III at 304.) When Cooper had earlier observed appellant walking

around the side of her residence, he was "dressed in black" clothing. (Tr. Vol. III at 305.)

Cooper did not notice any difference between the clothing of the individual she saw

running down the alley and the clothing appellant was wearing. The last time Cooper saw

appellant in the neighborhood was on the date of the shooting.

{¶ 20} During Cooper's testimony, the state played video surveillance footage

obtained from surveillance cameras located at Brown's residence at 480 East Markison

No. 17AP-853 6

Avenue. Cooper identified Holder and the heavyset individual on the tape, and she also

identified appellant on the tape as dressed in all black. Cooper testified the three

individuals depicted on the video appeared to be walking toward Brown's residence.

{¶ 21} At trial, the parties stipulated that the "Big Guy" depicted in a Kroger store

video, as well as in a surveillance video recovered from 480 East Markison Avenue, was

Jason Hicks. (State's Ex. S.) It was further stipulated that "Jason Hicks was shot an

undetermined number of times while on the porch of 480 East Markison Avenue,

Columbus, Ohio, on October 12th, [2016] at or about 11:53 a.m.," and that "Hicks was

then driven to Detroit, Michigan, to a hospital for treatment." (Tr. Vol. II at 148.) State's

exhibit H-2, an "iPhone 7," was recovered in front of 482 East Markison Avenue and

belonged to Hicks. (Tr. Vol. II at 148.)

{¶ 22} The parties also stipulated that, on October 10, 2016, "Natisha Hicks, the

spouse of Jason Hicks, rented a 2015 Chevrolet Impala, Tennessee license plate Z7785M,

from Hertz Rental Car * * * in Eastpointe, Michigan. The vehicle was due to be returned

October 24th, 2016, but was actually returned on October 14th, 2016, to the same

location." (Tr. Vol. III at 255.) Finally, it was stipulated appellant was arrested in Detroit,

Michigan on November 3, 2016, and that Hicks "was taken into custody while in a Detroit

hospital" on November 3, 2016. (Tr. Vol. III at 257.)

{¶ 23} Kelby Ducat, a firearms examiner employed by the Columbus Police Crime

Laboratory, identified state's exhibit H-25 as a "Glock .40-caliber semiautomatic pistol."

(Tr. Vol. III at 363.) The weapon was operable. Ducat testified that "the spent .40-caliber

cartridge cases were fired from the Glock pistol." (Tr. Vol. III at 365.) Ducat was also

asked to examine .45-caliber casings recovered from the scene. He opined that all four

cartridge casings had been "fired from the same firearm." (Tr. Vol. III at 368.) He further

opined that at least two firearms were fired at the scene.

{¶ 24} Dr. Donald Pojman, a forensic pathologist and deputy coroner for Franklin

County, performed an autopsy on the shooting victim, Brown. Brown suffered a gunshot

wound to the right chest, as well as a wound on the right side of his lower back. Dr.

Pojman opined that Brown died as a result of "gunshot wounds to the torso, which covers

the chest and abdomen." (Tr. Vol. IV at 413.)

No. 17AP-853 7

{¶ 25} At the close of the state's case, counsel for appellant made a motion for a

judgment of acquittal, pursuant to Crim.R. 29, which the trial court denied. Following

deliberations, the jury returned verdicts finding appellant guilty of Count 5, murder,

without a firearm specification, and not guilty of Counts 3, 4, and 6. The trial court filed a

judgment entry on November 7, 2017, sentencing appellant to a term of imprisonment of

15 years to life.

{¶ 26} On appeal, appellant sets forth the following three assignments of error for

this court's review:

[I.] THE TRIAL COURT ERRED BY INSTRUCTING THE

JURY THEY COULD CONSIDER THE DEFENDANT-

APPELLANT'S FLIGHT AS CONSCIOUSNESS OF GUILT.

[II.] THE TRIAL COURT ERRED WHEN IT DENIED THE

DEFENDANT-APPELLANT'S CRIMINAL RULE 29

MOTIONS FOR ACQUITTAL.

[III.] THE VERDICT OF GUILTY TO MURDER IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 27} Under the first assignment of error, appellant contends the trial court erred

by instructing the jury on flight as consciousness of guilt. Appellant notes the trial court

denied defense counsel's request that the court not provide such an instruction. Appellant

maintains that his arrest in Michigan, three weeks after the offense, did not warrant a jury

instruction on consciousness of guilt. According to appellant, the evidence at trial

indicates he was known to move around from house to house, and it is not unusual in a

neighborhood with a high crime rate for individuals to avoid making themselves available

to law enforcement.

{¶ 28} At issue is the following instruction provided by the trial court to the jury:

Testimony has been admitted indicating that the defendant

fled the jurisdiction. You're instructed that flight alone does

not raise a presumption of guilt, but it may indicate the

defendant's consciousness of guilt. If you find the facts do not

support that the defendant fled to Detroit, Michigan, or if you

find that some other motive prompted the defendant's

conduct, or if you are unable to decide what the defendant's

motivation was, then you should not consider this evidence

for any purpose. However, if you find the facts support that

the defendant engaged in such conduct and if you decide that

No. 17AP-853 8

the defendant was motivated by a consciousness of guilt, you

may, but are not required to, consider that evidence in

deciding whether the defendant is guilty of the crimes

charged. You alone will determine what weight, if any, to give

to this evidence.

(Tr. Vol. IV at 510-11.)

{¶ 29} Under Ohio law, "[e]vidence of flight is admissible to show consciousness of

guilt." State v. Robinson, 1st Dist. No. C-060434, 2007-Ohio-2388, ¶ 19. In this respect,

"[f]light means some escape or affirmative attempt to avoid apprehension." Id. Further,

"[a] jury instruction on consciousness of guilt based upon the flight of the accused is

appropriate when supported by sufficient evidence in the record." State v. Grindstaff,

12th Dist. No. CA2013-09-074, 2014-Ohio-2581, ¶ 29. An instruction on flight "is treated

as part of the overall jury instructions and is reviewed in the context of the entire jury

instructions." State v. Anderson, 7th Dist. No. 03 MA 252, 2006-Ohio-4618, ¶ 108.

{¶ 30} An appellate court reviews a trial court's decision "to give or not to give a

particular jury instruction under an abuse of discretion standard." State v. Kaufman, 187

Ohio App.3d 50, 2010-Ohio-1536, ¶ 103 (7th Dist.), citing Sicklesmith v. Hoist, 169 Ohio

App.3d 470, 2006-Ohio-6137, ¶ 15 (7th Dist.). See also State v. Smith, 6th Dist. No. L-05-

1350, 2007-Ohio-5592, ¶ 63 ("A decision as to whether to issue a flight instruction rests

within the sound discretion of the trial court and will not be reversed absent an abuse of

discretion.").

{¶ 31} It has been noted that " '[e]vidence of flight to support an inference of guilt

should generally be limited to situations when the activities associated with flight occur at

a time and place near the criminal activity for which the defendant is on trial.' " State v.

White, 2d Dist. No. 26093, 2015-Ohio-3512, ¶ 48, quoting State v. Wood, 2d Dist. No.

2010 CA 42, 2011-Ohio-2314, ¶ 30. However, "admissibility does not depend on how

much time passes between the offense and the defendant's flight." Id., citing State v.

Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 169. Rather, "[t]he flight need not be

immediate," and "[t]he instruction may be appropriate when the defendant, a long-time

resident of the area in which the crime occurred, was arrested months later in another

state or another part of the state." Id.

No. 17AP-853 9

{¶ 32} In response to this assignment of error, the state argues the evidence

presented was sufficient to raise an inference that appellant not only fled the scene

immediately following the shooting, but that he then fled to Michigan. We agree.

{¶ 33} At trial, Mowery testified he spoke with appellant in front of Brown's

residence "no more than a half hour" prior to the shooting. (Tr. Vol. II at 202.) Appellant

asked Mowery to go to a nearby store to pick up cigarettes for him; appellant explained

that he was "waiting on somebody and he couldn't miss them." (Tr. Vol. II at 199.)

Mowery had known appellant for about a month prior to the shooting, and Mowery

testified appellant was "in and out of 478 a lot." (Tr. Vol. II at 227.)

{¶ 34} Cooper, who lived next door to Brown, testified that, prior to the shooting,

she saw appellant in the neighborhood "[a]bout every day." (Tr. Vol. III at 297.) Cooper

testified that, approximately one minute prior to the shooting, she observed appellant and

two other individuals walk by the side of her residence and then toward the front yard of

Brown's residence; appellant was dressed in all black. Cooper testified that an individual

she observed running down the alley after the shooting, who was also dressed in all black,

got into the vehicle that drove away from the scene. Cooper had not seen appellant in the

neighborhood since the events of October 12, 2016.

{¶ 35} The evidence also indicated that Hicks was with appellant shortly before the

shooting. At trial, the parties stipulated that Hicks' wife rented the vehicle that witnesses

observed leaving the scene of the shooting. It was further stipulated that Hicks received

multiple gunshot wounds and was treated at a hospital in Detroit, Michigan.

{¶ 36} Here, there was evidence indicating appellant was frequently in the

neighborhood prior to the shooting, but he had not been seen in the area following the

incident. The state also presented the testimony of several witnesses who saw a dark-

colored vehicle leaving the scene, and an individual was observed entering that vehicle

wearing clothing that matched clothing worn by appellant that day. Approximately three

weeks after the shooting, on November 3, 2016, Hicks, who was observed getting into the

driver's seat of the vehicle leaving the scene, was arrested in Detroit, Michigan. On that

same date, appellant was also arrested in Detroit, Michigan.

{¶ 37} On review, the evidence presented permitted a reasonable inference that

appellant fled the scene of the shooting and traveled to Michigan to avoid apprehension,

No. 17AP-853 10

and we find no abuse of discretion by the trial court in providing a flight instruction. See,

e.g., State v. Woods, 1st Dist. No. C-130413, 2014-Ohio-3892, ¶ 61 (trial court did not err

in instructing jury on flight where state presented evidence that the defendant, a long-

time resident of area in Cincinnati where shooting occurred, was captured several months

later in Cleveland); State v. Jackson, 9th Dist. No. 11CA010012, 2012-Ohio-3524, ¶ 18

(flight instruction proper where evidence allowed reasonable inference defendant left the

state shortly after crime to avoid apprehension); State v. Pryor, 5th Dist. No.

2017CA00122, 2018-Ohio-2712, ¶ 46 (sufficient evidence to warrant flight instruction

where appellant fled jurisdiction immediately after assaulting victim and was found by

United States Marshals two days later in Georgia).

{¶ 38} Appellant's first assignment of error is not well-taken and is overruled.

{¶ 39} Appellant's second and third assignments of error are interrelated and will

be considered together. Under the second assignment of error, appellant argues the trial

court erred by denying his Crim.R. 29 motion for judgment of acquittal because the

evidence was insufficient to support his conviction for felony murder. Under the third

assignment of error, appellant contends his conviction was against the manifest weight of

the evidence. Appellant argues that none of the witnesses observed him fire a weapon,

nor does the evidence indicate where he was located when the shooting began. Appellant

maintains his mere presence at the crime scene was insufficient to support his conviction.

{¶ 40} In general, "[a] motion for judgment of acquittal, pursuant to Crim.R. 29,

tests the sufficiency of the evidence." State v. Darrington, 10th Dist. No. 06AP-160,

2006-Ohio-5042, ¶ 15. As such, "an appellate court reviews a trial court's denial of a

motion for acquittal using the same standard for reviewing a sufficiency of the evidence

claim." Id. In considering "whether the evidence is legally sufficient to support the jury

verdict as a matter of law, '[t]he 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. Robinson,

124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259

(1991), paragraph two of the syllabus.

{¶ 41} In contrast to a sufficiency argument, a manifest weight of the evidence

challenge "questions whether the state met its burden of persuasion." State v. Adhikari,

No. 17AP-853 11

8th Dist. No. 103935, 2017-Ohio-460, ¶ 47, citing State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. In considering such a challenge, "[a] reviewing court 'weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, 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.' " Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 388 (1997).

Further, "[a] conviction should be reversed as against the manifest weight of the evidence

only in the most 'exceptional case in which the evidence weighs heavily against the

conviction.' " Id.

{¶ 42} In the present case, the jury returned a verdict finding appellant guilty of

Count 5, felony murder. R.C. 2903.02(B) states in part: "No person shall cause the death

of another as a proximate result of the offender's committing or attempting to commit an

offense of violence that is a felony of the first or second degree." The underlying felony

under Count 5 was felonious assault, in violation of R.C. 2903.11. Pursuant to R.C.

2903.11(A)(2), "[n]o person shall knowingly * * * [c]ause or attempt to cause physical

harm to another * * * by means of a deadly weapon." At trial, the jury was instructed that

appellant "may be convicted as a principal offender or as a complicitor or an aider and

abetter to any or all counts and specifications." (Tr. Vol. IV at 511.)

{¶ 43} We first consider appellant's challenge to the trial court's denial of his

Crim.R. 29 motion for judgment of acquittal based on a sufficiency argument. In

reviewing the record, the state presented testimony indicating appellant was standing in

front of 480 East Markison Avenue (Brown's residence) on the morning of the incident.

Mowery testified that he spoke with appellant approximately one-half hour prior to the

shooting; appellant told Mowery that he was waiting for someone and could not leave. He

asked Mowery to go to a nearby store for cigarettes.

{¶ 44} At trial, the state introduced and played for the jury surveillance video

obtained from two cameras located at Brown's residence. The video from one camera

(hereafter "Camera No. 1") depicts an outside view of Brown's front porch area, angled to

include views of the front yard of 482 East Markison Avenue and the street itself. Video

from the other camera (hereafter "Camera No. 2") depicts the area directly outside the

front door of Brown's residence.

No. 17AP-853 12

{¶ 45} The state also presented the testimony of Cooper, who resided at 482 East

Markison Avenue, next door to Brown's residence. Approximately one minute before the

shooting, Cooper observed appellant and two other individuals walk "by [her] side

window" and proceed "into the front yard by Tony's house." (Tr. Vol. III at 300.) The

state played portions of the surveillance video during Cooper's testimony.

{¶ 46} Camera No. 1 depicts three individuals walking around to the front of 482

East Markison Avenue; the tape indicates a time of 11:51 a.m. Cooper identified appellant

and Holder as two of the three individuals depicted on the video, and it was stipulated

that the heavyset individual appearing on the video was Hicks. Cooper confirmed

appellant was the individual in the video wearing all black clothing. Holder appears first

in the camera frame, followed by Hicks, and then appellant. Appellant is the individual

closest to the porch, with his hands in his pockets, while Hicks and Holder approach the

direction of 480 East Markison Avenue. All three individuals disappear from view of

Camera No. 1 shortly before 11:52 a.m.; appellant is last observed walking toward the

front of the duplex, and Hicks appears to glance in that direction as he walks toward

Brown's residence.

{¶ 47} The state's theory of the case, as summarized during closing argument, was

that appellant fired the shots that struck Brown while standing off to the side of Brown's

front porch (in an area where several .40-caliber shell casings were recovered).

Specifically, the state argued that as Hicks and Holder approached the front porch of

Brown's residence (480 East Markison Avenue), appellant stood off to the side in a small

"cut out" area between the porches of 482 and 480 East Markison Avenue. (Tr. Vol. IV at

438.)

{¶ 48} At trial, the state played footage from Camera No. 2 showing Hicks and

Holder approaching the front porch of Brown's residence. Holder initially walks up to the

front door, and an individual inside the residence is depicted opening the front door

slightly. Holder then steps back off the porch and Hicks walks onto the porch and stands

at the front door; Hicks appears to be engaged in a discussion with the individual standing

inside. A short time later, at 11:52 a.m., Holder looks surprised and backs away as Hicks

exits the camera frame, heading in the direction of 482 East Markison Avenue. The video

depicts the door opening wider and a shell casing appears to fly across the screen.

No. 17AP-853 13

{¶ 49} The state introduced evidence that three .40-caliber shell casings were

found in the cut out area between 480 and 482 East Markison Avenue, and two more .40-

caliber casings were found on the porch of 482 East Markison Avenue. The state argued

at trial the evidence indicated the bullets fired toward 480 East Markison Avenue were

fired at an angle (i.e., east to west), including evidence of bullet strikes to the residence at

478 East Markison Avenue.

{¶ 50} According to the state's theory, after the initial shots were fired, appellant

and Hicks ran around the side of 482 East Markison Avenue to the back alley, where a

Chevrolet Impala was parked; at the same time, Brown was running out the back door of

his residence (presumably unaware of the vehicle parked in the back). The state

introduced evidence that Brown was shot in the back after exiting his residence, and

police recovered a .40-caliber shell casing located in the rear of the duplex. Authorities

also recovered a .40-caliber Glock from a nearby outdoor grill, located at 522 East

Markison Avenue. The state's ballistics examiner testified the spent .40-caliber cartridge

cases were fired from the Glock found in the grill.

{¶ 51} Cooper provided testimony that, after the shooting ended, she went to her

back door and observed a dark-colored vehicle parked in the back. Cooper observed

Hicks enter the car and observed another individual who "ran down the back alley with

something, came back, [and] jumped in the car." (Tr. Vol. III at 303.) Cooper, who

testified appellant was wearing all black clothing when she observed him walking by her

house just prior to the shooting, stated the individual who ran down the alley was also

wearing all black clothing. Cooper did not notice any differences between the clothing of

the individual running down the alley and the clothing worn by appellant that day.

Several of the state's witnesses observed a dark-colored vehicle leaving the area after the

shooting, and Williams identified the vehicle as a Chevrolet Impala.

{¶ 52} As previously noted, it was stipulated at trial that Hicks' spouse rented a

2015 Chevrolet Impala on October 10, 2016 in Eastpointe, Michigan. It was further

stipulated that Hicks suffered an undetermined number of gunshot wounds while on the

porch at 480 East Markison Avenue, and he was driven to a hospital in Detroit, Michigan,

for treatment of his wounds. On November 3, 2016, law enforcement authorities arrested

No. 17AP-853 14

Hicks in a hospital in Detroit, Michigan; on that same date, appellant was also arrested in

Detroit, Michigan.

{¶ 53} Construing the evidence most strongly in favor of the prosecution, we

conclude the state provided sufficient evidence to support appellant's conviction for the

felony murder of Brown. The fact that none of the state's witnesses observed appellant

fire the shots is not dispositive; rather, as noted by the state, eyewitness testimony that he

fired the weapon is not required to sustain a conviction. See State v. Walker, 8th Dist.

No. 99998, 2014-Ohio-1827, ¶ 22, citing State v. Lopez, 8th Dist. No. 94312, 2011-Ohio-

182, ¶ 62, citing Jenks ("While there was no eyewitness testimony identifying [the

defendant] as the shooter, such evidence is not required in order to sustain a

conviction."). Further, under Ohio law, "[c]ircumstantial evidence and direct evidence

have equivalent probative value." State v. Wood, 2d Dist. No. 26134, 2016-Ohio-143,

¶ 38. In this respect, " 'reasonable inferences may be drawn from both direct and

circumstantial evidence.' " State v. Toney, 7th Dist. No. 14 MA 0083, 2016-Ohio-3296, ¶

28, quoting State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. No. CA2011-

05-045, 2012-Ohio-2569, ¶ 66. Here, viewed in a light most favorable to the prosecution,

the direct and circumstantial evidence presented, along with the reasonable inferences to

be drawn therefrom, was sufficient to support appellant's conviction, either as principal or

as an aider and abettor, for felony murder. Accordingly, the trial court did not err in

denying appellant's Crim.R. 29 motion for judgment of acquittal.

{¶ 54} Further, after reviewing the entire record, we cannot say the jury clearly lost

its way and created a manifest miscarriage of justice such that the conviction must be

reversed and a new trial ordered. Thus, appellant's conviction for felony murder was not

against the manifest weight of the evidence.

{¶ 55} Based on the forgoing, appellant's three assignments of error are overruled,

and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

DORRIAN and LUPER SCHUSTER, JJ., concur.

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