STATE OF OIIIO

Plaintiff-Appellee

-VS-

CRAIG FRANKLIN

Defendant-Appellant

)

)

)

)

BRIEF OF DEFENDANT-APPELLANT

JOHN P. LACZKO LLC (0051918)4800 Market St., Ste. CYoungstown, Ohio 44512(330) 788-2480Attorney for Defendant-Appellant

PAUL GAINS (0020323)ProsecutorRHYS B. CARTWRIGIIT-JONES (0078597)Assistant ProsecutorMahoning County Prosecutor's Office21 West Boardman St.Youngstown, Ohio 44503(330) 740-2330Attorney for Plaintiff-Appellee

FDDDJUN 19 2008

IN THE COURT OF APPEALSSEVENTH APPELLATE DISTRICT

iMAIIONING COUNTY, OHIO ®

8_ 1191) CASE NO. 06 MA 79

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

PAGE

Explanation of Why This Case is a Case of Public or Great GeneralInterest and Involves a Substantial Constitutional Question - 1

STATEMENT OF THE CASE AND FACTS

Argument - - - - -

Proposition of Law No. 1 - -

2

5

5

THE TRIAL COURT ERRED AND THE SEVENTH DISTRICT COURTOF APPEALS ERRED TO THE PREJUDICE OF APPELLANT BYPROHIBITING TRIAL COUNSEL FROM CROSS-EXAMININGAPPELLEE'S WITNESS JAMOND ROBINSON RELATIVE TO HIS BIASOR MOTIVE TO TESTIFY AGAINST APPELLANT CONSIDERING I-IISCURENT PLEA DEAL WITH APPELLEE.

Proposition of Law No. 2 - - - - - - 7

THE TRIAL COURT AND THE COURT OF APPEALS DENIEDAPPELLANT DUE PROCESS UNDER THE FOURTEENTHAMENDMENT DUE TO THE FACT HIS CONVICTION FORCOMPLICITY TO MURDER AND AGGRAVATED ROBBERY WEREAGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THEJURY'S VERDICT WAS INCONSISTENT WITH THE EVIDENCE ANDTESTIMONY PRESENTED AT TRIAL.

Proposition of Law No. 3 - - - - - - 9

THE TRIAL COURT AND THE COURT OF APPEALS ERRED TO THEPREJUDICE OF APPELLANT BY OVERRULING HIS MOTION TODETERMINE THE PROSECUTOR WAS USING HIS PEREMPTORYCHALLENGES TO EXCLUDE RACIAL MINORITIES BY EXCUSING THEAFRICAN-AMERICAN MEMBERS OF THE VENIRE PANEL INVIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT TO THEUNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THEOHIO CONSTITUTION.

TABLE OF CONTENTS CONTINUED

Proposition of Law No. 4 - - - - - - 13

THE TRIAL COURT AND THE COURT OF APPEALS ERRED BYOVERRULING APPELLANT'S MOTION TO DISMISS THE MURDERCOUNT OF THE INDICTMENT SINCE A CRIMINAL DEFENDANTCANNOT BE HELD CRIMINALLY LIABLE FOR THE DEATH OF ANACCOMPLICE UNER THE FELONY MURDER RULE.

CONCLUSION - - - - - - - 15

CERTIFICATE OF SERVICE - - - - - 15

APPENDIX

A. Judgment Entry of Sentencing dated May 18, 2008 - - - 16

B. Notice of Appeal dated May 16, 2006 - - - - - 19

C. Journal Entry of Court of Appeals dated May 5, 2008 - - - 20

C. Seventh District Court of Appeals Opinion dated May 5, 2008 - - 21dated

EXPLANATION OF WHY THIS CASE IS A CASE OFGREAT PUBLIC INTEREST AND INVOLVES A

SUBSTANTIAL CONSTITUTIONAL QUESTION

The claimed errors assigned in this case once again affords this Honorable Court

with an opportunity to review, update, and clearly articulate the appellate review

standards involving prosecutorial misconduct in excluding racial minorities from the

venire panel through peremptory challenges and determining the proper theory to be

employed to determine whether a criminal defendant can be held liable for a co-

conspirator's death, where the co-conspirator is shot and killed by the victim of a robbery.

Due to the fact this case involves convictions for complicity to commit murder and

complicity to commit aggravated robbery, this court should review Appellant's conviction

and sentence , as well as the evidentiary rulings and theories of law employed by the

courts given the fact this Honorable Court has not previously reviewed and set precedent

for the proper application of the felony-murder rule to the unique fact scenario herein.

These factors and determinations by the trial court and the Seventh District Court

of Appeals herein made it impossible for appellant to obtain a fair and impartial trial by a

jury of his pers in the instant matter.

1

STATEMENT OF THE FACTS AND THE CASE

On October 6, 2005, the Appellant was indicted by direct presentment by the

Mahoning County Grand Jury in a two (2) count indictment for Murder, pursuant to RC

2903.02 (B)(D), a felony, fifteen (15) years to life in count one and Aggravated Robbery,

pursuant to RC 2911.01 (A)(1), a felony of the first degree in count two. Additionally,

Appellant's indictment contained a firearm specification attached to each count pursuant

to RC 2941.145 (A), each carrying a potential three (3) year consecutive sentence. It was

alleged in the indictment that on May 21, 2005, Appellant and others had a deadly

weapon on or about their persons or under their control and used said weapon in

committing or attempting to commit a theft offense against Atway's Market constituting

Aggravated Robbery and during the course of that Aggravated Robbery, Appellant

proximately caused the death of Eric Farmer. (hereinafter referred to as "Farmer"), one of

Appellanfs alleged co-conspirators in the aggravated robbery.

Thereafter, this matter proceeded to jury trial before Judge John Durkin on April

17, 2006 surrounding the armed robbery of Atway's Market on May 21, 2005. Two of the

owner/operators of the market, Atway Atway (hereinafter referred to as "Atway") and

Ghalib Atway (hereinafter referred to as "Ghalib") were present during the attempted

robbery and Atway fired several shots at the robbers with a handgun from behind the

counter. (TR 315). During this gunfire, two (2) of the robbers were struck by the gunfire

and one (1) of the robbers, Farmer, died the following morning. An investigation by the

Youngstown Police Department produced five (5) juvenile suspects; Appellant, Garrett,

2

Farmer, Jamond Robinson (hereinafter referred to as "Robinson") and Jermaine Beverly.

(hereinafter referred to as "Beverly").

At trial, Appellee presented witness testimony from two (2) of Appellanfs co-

defendants, Robinson and Beverly, who were originally charged with the same crimes as

Appellant and the other co-defendants, but each witness received favorable plea deals

from Appellee in exchange for their testimony. Robinson testified Appellant was the

mastermind of the robbery at Atway's Market, choosing the location for the robbery,

suggesting the plan for the robbery and directing the other co-defendants to the scene.

(TR 270, 274, 296). Robinson further testified Appellant initially entered the store alone

to detennine who was present, then returned to the store with Beverly immediately before

he, Garrett and Farmer entered the store to attempt to hold up the market. (TR 273, 274,

275). Robinson went on to testify how Garrett ordered the Atways to "put their hands up,

it's a robbery." Ghalib wrestled Garrett for his gun and was knocked into a candy display

before Atway pulled out a gun and fired two (2) shots at the robbers, striking Robinson

with one shot and fatally wounding Farmer with the other shot. (TR 275,276). This

testimony was roughly reiterated by Beverly in his trial testimony, with additional

testimony that Appellant and Beverly acted like they were making a telephone call at the

pay phone outside the store, before the attempted robbery. (TR 376, 378, 380, 383, 384).

Another witness, Latonya White (hereinafter referred to as "White") also testified she

noticed two (2) boys on the pay phone outside the store before the robbery, but she was

unable to identify anyone as a perpetrator on May 21, 2005, and did not witness what

occurred inside the store. (TR 416, 418, 425).

3

This testimony of how the attempted robbery occurred inside the market was also

testified to by Atway and Ghalib - except Ghalib could not identify Appellant as one of

the robbers in the store. (TR 332, 337, 341). Additionally, Atway testified that when

Appellant and Beverly entered the store they were dressed in regular clothes, did not

possess any weapons and were laying on the floor during the robbery. (TR 314, 322,

323). In fact, Atway testified that after the robbery he put a toy gun to Appellant's head,

asked him if he was involved in the robbery and when Appellant replied "No", he let him

and Beverly leave the store. ('TR 312, 316, 322).

Finally, Robinson and Beverly admitted that when they originally gave a

statement to the police about the robbery they both lied and denied being involved in the

incident. (TR 280, 281, 282, 284, 290, 391, 396). Robinson and Beverly also testified as

to their respective deals with Appellee in exchange for their testimony; Beverly admitted

he would not be bound over as an adult, would only remain in jail until he was twenty-

one (21) years old and would get a firearm specification dismissed. (TR 402, 405).

Robinson admitted his deal included that he would get an aggravated murder charge and

firearm specification dismissed, (the same charges Appellant was convicted of), and

might not get bound over as an adult. (TR 286, 287, 288, 291, 293).

At the conclusion of the testimony and evidence offered, the jury on April 20,

2007 returned verdicts of guilty against Appellant on the charges of complicity to commit

murder and complicity to commit aggravated robbery; but found Appellant not guilty of

the firearm specifications attached to each count. (R 61, 62, 63, 64). At the sentencing

hearing on Apri128, 2007, the trial court sentenced Appellant to serve a defmite term of

4

fifteen (15) years to life on the complicity to commit aggravated murder charge and ten

(10) years incarceration consecutive for the charge of complicity to Aggravated Robbery

in the Ohio Department of Rehabilitation and Corrections. This sentence was joumalized

in a judgment entry by the trial court dated May 18, 2006. (R 77). (Attached hereto as

Appellant's Exhibit "A").

Thereafter, on May 18, 2006, trial counsel for Appellant filed a Notice of Appeal

(R 74). (Attached hereto as Appellant's Exhibit "B"). This appeal followed. On May 5,

2008, the Seventh District Court of Appeals rendered its Journal Entry and Opinion

affinning Appellant's conviction and sentence from the Mahoning County Common Pleas

Court. (Attached hereto as Appellant's Exhibits "C" and "D".

ARGUMENT IN SUPPORT OF PROPOSITION OF LAWPROPOSITION OF LAW NO.1

THE TR1AL COURT AND THE COURT OF APPEALS ERREDTO THE PREJUDICE OF APPELLANT BY PROHIBITING

TRIAL COUNSEL FROM CROSS-EXAMINING APPELLEE'SWITNESS JAMOND ROBINSON RELATIVE TO HIS BIASOR MOTIVE TO TESTIFY AGAINST APPELLANT

CONSIDERING HIS CURRENT PLEA DEAL WITH APPELLEE.

During a criminal trial the State of Ohio may not attempt to curtail a criminal

defendant's right to cross-examination by attempting to preclude a full and complete

cross-examination of any witness violating the criminal defendant's right to confrontation.

Bruton v. United States (1968) 391 U.S. 123. Moreover, the Ohio Supreme Court has

stated in State v. Hanna (1978) 54 Ohio St. 2d 84 that:

". .. any abrogation of the defendant's right to a full and completecross-examination of such witnesses is a denial of a fundamentalright essential to a fair trial and is prejudiced per se."

5

Jamond Robinson testified at trial that under his plea agreement with Appellee in

exchange for his testimony against Appellant, the aggravated murder charge and the

firearm specification charge against him were to be dismissed. (TR 286, 287, 291, 293).

Additionally, Robinson testified that he might get to keep charges he agreed to plead to;

one (1) count of aggravated robbery and three (3) counts of kidnapping, in Juvenile Court,

rather than being bound over as an adult to Common Pleas Court for disposition. (TR

288, 295). This equated to Appellant facing the possibility of detention for these crimes

of a maximum sentence until age 21. At the time of this trial, Robinson was on probation

to the Mahoning County Juvenile Court for a conviction for a charge of rape and although

a probation violation had not been filed at the time of trial, Robinson therefore had

additional incentive to cooperate with Appelee in his testimony herein to avoid a

probation violation on the rape charge and attempt to keep the new charges in Juvenile

Court. (TR 345, 346, 347).

At trial, despite the request of counsel for Appellant, the trial judge refused to

permit counsel to question Robinson involving his status on probation for this rape

conviction, any potential probation violation or potential bias Robinson could have in his

testimony to avoid a probation violation and attempt to keep his new cases in Juvenile

Court.

The purpose for inquiry into a plea bargaining an•angement with a witness for

impeachment purposes is to show possible bias on the part of the witness that might

affect his credibility. State v. Sims (1983) 9 Ohio App. 3d 302. It is reversible error to

deny the defense cross-exanunation of a state witness with respect to what the witness

6

hopes to gain from a plea, whether in the same or an unrelated case. Such examination is

a legitimate method of exposing potential bias. State v. Aldridee (1981) 3 Ohio App. 3d

74. Appellant states that he was wrongfully denied his right to cross-examine Robinson

regarding both the plea agreements and Robinson's prior conviction and probation status

as specific instances of conduct pursuant to Ohio Evidence Rules 609 and 616.

Clearly, cross-examination of Robinson in this particular matter would have been

clearly probative of motive or bias pursuant to evidence rule 616. As such, the decision

on whether or not this evidence should have been permitted to completely within the trial

court's discretion. As the requested testimony from Robinson would have been relevant

to his bias or motive in testifying against Appellant was directly relevant to his plea deal

with the Appellee, clearly the trial courtjudge abused his discretion in refusing to permit

trial counsel cross-examination of Robinson on his prior rape conviction and status on

probation.

Therefore, Appellant's Firs Proposition of Law should be sustained and Appellant

afforded a new trial.

PROPOSITION OF LAW NO. 2

THE TRIAL COURT AND THE COURT OF APPEALSDENIED APPELLANT DUE PROCESS UNDER THEFOURTEENTH AMENDMENT DUE TO THE FACT HISCONVICTION FOR COMPLICITY TO MURDER AND AGGRA-VATED ROBBERY WERE AGAINST THE MANIFEST WEIGHTOF THE EVIDENCE AND THE JURY'S VERDICT WAS INCON-SISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTEDAT TRIAL.

In order to reverse the decision of a lower court, a reviewing court must be fully

and clearly satisfied from an examination of all the evidence and of the entire record that

7

the judgment is in fact unsupported by, or against the manifest weight of the evidence.

State v. Jenks (1991) 61 Ohio St. 3d 259.

A review of all the evidence adduced at trial failed to establish the Appellee's

theory of the case that Appellant was the mastemiind responsible for the plan to execute

the robbery at Atway's Market, since the only evidence of this "plan" was the testimony of

two (2) of Appellant's co-defendants who gave prior inconsistent statements and were

offered plea deals with Appelee in exchange for their testimony. Appellee failed to

provide any testimony from any witness other that these co-defendants Robinson and

Beverly to even remotely establish a conspiracy to rob the market or evidence Appellant

was complicit in the robbery.

"The mere presence of an accused at the scene of a crime is not sufficient to

prove, in and of itself, that the accused was an aider and abettor." State v Windner

(1982) 69 Ohio St. 2d 267, 269. An accused must be proven to have taken a role in the

offense and not to have witnessed it being committed or to have acquiesced to its being

committed. State v Sims (1983) 10 Ohio App. 3d 56. A review of all the testimonial

evidence considering the credibility and bias of Appellant's co-defendants the fact that

their testimony was impeached and self-serving, coupled with the fact that witnesses to

the event who testified could not identify Appellant as a perpetrator would not convince

the average juror of Appellant's guilt beyond a reasonable doubt. No witness

unassociated with the robbery could implement Appellant as being part of the "plan" or

conspiracy to commit the underlying the robbery resulting in Farmer's death.

8

After reviewing all the evidence and testimony presented in the record, including

the Appellee's failure to prove beyond a reasonable doubt Appellant's involvement in the

robbery leading to the death of Farmer, it is evident that no rational trier of fact could

have found that all the essential elements of the crime of murder were proven beyond a

reasonable doubt herein. Based upon the evidence presented, the average mind would not

have been convinced of the Appellant's guilt herein beyond a reasonable doubt.

Based upon the preceding discussion, it is obvious the decision of the jury herein is

against the manifest weight of the evidence and should be reversed.

PROPOSITION OF LAW NO. 3

THE TRIAL COURT AND THE COURT OF APPEALS ERREDTO THE PREJUDICE OF APPELLANT BY OVERRULINGHIS MOTION TO DETERMINE THE PROSECUTOR WASUSING HIS PEREMPTORY CHALLENGES TO EXCLUDERACIAL MINORITIES BY EXCUSING THE AFRICAN-

AMERICAN MEMBERS OF THE VENII2E PANEL IN VIOLATIONOF THE SIXTH AND FOURTEENTH AMENDMENT TO THEUNITED STATES CONSTITUTION AND SECTION 10, ARTICLE1 OF THE OHIO CONSTITUTION.

The case law goveming a prosecutor's use of peremptory challenges to potential

jurors for discriminatory purposes is well established by Batson v. Kentucky (1986) 476

U.S. 79 and its progeny Powers v. Ohio (1991) 499 U.S. 400 which stand for the

proposition that regardless of the race of a criminal defendant, the prosecutor may not

exercise his peremptory challenges in a manner calculated to exclude racial minorities.

As farther articulated in Hernandez v. New York (1991) 500 U.S. 352, Batson supra

created a three step process for claims of discriminatory exercise of preemptory

challenges; (1) The defendant must make a prima facie showing that the prosecutor has

9

exercised preemptory challenges based on race; (2) If so, the prosecutor must articulate a

race neutral explanation for the exclusion of the jurors in question; (3) The trial court

must then detennine whether the defendant has carried his burden of proving purposeful

discrimination.

Initially, a criminal defendant must show that he is a member of a cognizable

racial group and that the prosecutor has exercised peremptory challenges to remove from

the venire member's of defendant's race. State v. Tuck (1992) 80 Ohio App. 3d 721. In

the instant case, Appellant is African-American. Appellant's counsel set forth on the

record the make-up of the prospective jury panel as follows: there were thirty five (35)

potential jurors, with only five (5) of those number being African-Americans. Only three

(3) of those potential jurors were put into the general panel for consideration. (TR 224).

A review of the voir dire and peremptory excuse process indicates, as will be expanded

later, that two (2) of these three (3) jurors were removed on peremptory challenges over

the objection, with one (1) African-American jurors seated on the jury, who was later

removed by the court on its own motion. (TR 174, 202, 203, 222, 223, 342).

The three (3) African-American jurors herein were juror number 2, Eric Wilkins

(hereinafter referred to as "Wilkins"), juror number 15, Shirley McCall (hereinafter

referred to as "McCall") and juror number 1 Desmond Drayton (hereinafter referred to as

"Drayton"). At the onset of the peremptory challenge process the Appellee first excused

Wilkins because his brother was convicted of shooting Prosecutor Gains after his election

to office, (TR 162, 163, 164), even though he indicated in chambers that despite this

relationship and his brother's conviction, he could be fair and impartial and did not have

10

any animosity towards Appellee. (TR 165). Immediately upon his excuse from jury

service by Appellee, counsel for Appellant requested a side-bar conference but no further

discussion or argument was entertained at that time on the record before Wilkins was

excused. (TR 174).

The parties continued their respective peremptory challenges until Appellee

excused McCall at its first opportunity, whereupon counsel for Appellant additionally

requested a side-bar conference. (TR 202, 203). Again, McCall was excused from the

jury venire and allowed to leave the courtroom without any discussion or argument of

counsel being exposed on the record. It wasn't until after the court had seated a jury did

the court allow counsel for Appellant an opportunity to state for the record his Batson.

supra challenge and conduct hearing on the challenge, far removed from the timing of the

objections and well after the excused jurors had left the courtroom. (TR 223).

At this second stage of a Batson. supra challenge, the burden shifts to the

prosecutor to provide a facially valid race-neutral justification for the exercise of a

peremptory challenge and it is not sufficient for a prosecutor to claim no pattern of

discrimination had been established. State x Walker (2000) 139 Ohio App. 3d 52.

When the trial court fmally did get around to conducting a hearing on Appellant's

Batson. supra challenge the Appellee indicated Wilkins was excused because his brother

was involved in the Ernie Biordillo and Paul Gains shootings and Appellee did not

believe Wilkins was truthful when he testified he could be fair and impartial. (TR 117).

Appellee then indicated McCall was excused was because Appellee alleges she did not

hear anything counsel said during general voir dire, which caused concerns about her

11

paying attention during trial and the juror's answers of requiring the Appellee to prove

their case beyond all doubt. (TR 196,228), which is contrary to her testimony. Finally,

Appellee tells the court that he can excuse a juror for any reason that he wants to. (TR

228).

A review of the trial court's ruling on Appellant's Batson, supra challenge

indicates the court correctly concluded Appellant did not have to show a pattern of

discrimination on the part of the Appellee, but incorrectly concluded that the explanation

of the prosecutor "need not be persuasive or even plausible," but merely race neutral. (TR

230). The trial court and Court of Appeals both incorrectly concluded Appellee had

provided a race-neutral explanation regarding both jurors and that Appellant had failed to

establish purposeful racial discrimination and Appellant's Batson, supra challenge was

ovemiled. (TR 231).

While it is true that after the jury was selected an African-American man

remained on the jury during Appellant's trial and the court's decision at that time may

have been based on this fact; the danger of waiting until the jurors have been excused

and a jury seated before deciding Appellant's issue is further exasperated herein by the

fact this lone African-American juror is later excused from service before the conclusion

of the case by the court on its own motion. Drayton (Juror No. 1) was excused because

he did not mention on this juror questionnaire that he was employed in law enforcement

at the Mahoning County Juvenile Court, although given an opportunity to do so, (TR 56),

which resulted in counsel being unable to properly question Drayton about the effect of

this employment on his ability to be fair and impartial. (TR 342). The entire jury

12

selection process employed herein frustrated Appellant's attempts to get a fair and

impartial jury of his peers, as he ended up with no African-American jurors thus

depriving him of equal protection under the law in violation of the Sixth and Fourteenth

Amendments to the United States Constitution and Section 10, Article 1 of the Ohio

Constitution.

As Appellant has established a valid Batson, supra challenge herein Appellant's

Third Proposition of Law should be sustained and Appellant afforded a new trial.

PROPOSITION OF LAW NO. 4

THE TRIAL COURT AND COURT OF APPEALS ERREDBY OVERRULING APPELLANT'S MOTION TO DISMISSTHE MURDER COUNT OF THE INDICTMENT SINCE ACRINIINAL DEFENDANT CANNOT BE HELDCRIMINALLY LIABLE FOR THE DEATH OF ANACCOMPLICE UNDER THE FELONY MURDER RULE.

In the instant case, the trial court should have granted Appellant's Motion to

Dismiss the Murder Count of the indictment since Appellant should not be held

criminally liable for an alleged co-conspirator's death, where the co-conspirator is shot

and lcilled by the victim of the robbery. The only shots fired during the attempted robbery

herein were fired by the store owner, Atway, whose bullet ultimately killed Farmer. In

this case, the Appellee has charged Appellant with felony murder under the premise that

R.C. 2903.02(B) provides that an individual can be criminally liable for the death of any

individual caused 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. R.C.

2903.02(B) states:

"(B) No person shall cause the death of another as a proximate

13

result of the offender's committing or attempting to conunit anoffense of violence that is a felony of the first or second degreeand that is not a violation of section 2903.03 or 2903.04 of theRevised Code."

During trial, counsel for Appellant filed a Motion to Dismiss Count One (1) of the

indictment, murder, arguing Appellant cannot be held criminally liable for Fanner's death

as an alleged accomplice, since Farmer was shot and Icilled by the victim during an

attempted robbery that Appellant was not involved in. (R-49). At the conclusion of the

evidence in the case, the trial court conducted a hearing on the record on Appellant's

motion. A review of the case law on the subject does not uncover a determination of the

issue of whether Ohio follows the agency theory or a proximate cause theory of the

codified felony murder charge in this jurisdiction.

The agency theory required that a criminal defendant or an alleged accomplice kill

the victim wliich would not be applicable herein. Moore v. Wvrick (8th Cir.,1985) 766

F. 2d 1253. State v. Chambers (1977) 53 Ohio App. 2d 266. Appellant argues R.C.

2903.02(B) as written enacts the legislature's intent to create criminal liability for the

death of an "innocent" during the commission of a first or second degree felony offense of

violence. Therefore, Farmer's involvement in the robbery is undeniable and he would not

be in the classification of an "innocent" that the statute was designed to include. (TR 438,

439). This would create criminal liability for the death of an "innocent" without requiring

a purposeful intent making R.C. 2903.02(B) overly broad and improper.

The trial court and the Court of Appeals adopted the proximate cause theory,

which requires that Appellee must prove beyond a reasonable doubt that no person shall

cause the death of another as the proximate result of committing or attempting to commit

14

an offense of violence which is a felony of the First or Second Degree and that Appellant

can be criminally responsible for Farmer's death, regardless of the identity of the person

killed or the identity of the person whose act directly caused the death, so long as the

death is the proximate result of the Defendant's conduct in committing the underlying

felony. (TR 440, 441).

As there does not appear to be a prior ruling as to the appropriate theory to be

employed by this Honorable Court and Appellant argues the trial court and Court of

Appeals abused its discretion in so ruling and requests this Court to review the facts of

this case with the current murder statute, R.C. 2903.02(B), and case law and issue a

precedent for future cases on this issue.

CONCLUSION

Based upon the preceding case law and the argument, Appellant's Propositions of

Error should be sustained and Appellant afforded a ne

P. LACZK4890 Market St.,Y¢ungstown, Ohi(330) 788-2480Attorney for DefendAy-Appellant

CERTIFICATE OF SERVICE

A copy of the foregoing Brief has been mailed this /8^day of June, 2008, to:Rhys B. Cartwright-Jones, Assistant Prosecuting AttopW Mahoning f ryuntyProsecutor's Office, 21 W. Boardman St., YoungstoPlaintiff-Appellee.

15

IN THE COURT OF COMMON PLEASMAHONING COUNTY, OHIO

STATE OF OHIO

PLAINTIFF

VS.

CRAIG FRANKLIN

DEFENDANT

CASE NO. 05-CR-988

JUDGE JOHN M. DURKIN

INJUDGMENT ENTRY

MAY ^P606

On Apri128, 2006, Defendant's sentencing hearing was held pursuant to Ohio Revised

Code Section 2929.19. Defense Attorney, Ronald Yarwood and Natasha Frenchko and

Prosecuting Attorney, Gina Arnaut and Martin Desmond were present, as was Defendant who

was afforded all rights pursuant to Criminal Rule 32. The Court considered the record, oral

statements, the victim impact statement, as well as the principles and purposes of sentencing

under Ohio Revised Code Section 2929.11, and has balanced the seriousness and recidivism

factors under Ohio Revised Code Section 2929.12.

The Court fmds that the Defendant has been convicted by a Jury of Complicity to

Commit Murder, a violation of Ohio Revised Code Section 2903.02(B) and Aggravated

Robbery, a violation of Ohio Revised Code Section 2911.01(A), a felony of the first degree. The

Court further finds the Defendant is not eligible for community control..

It is hereby ORDERED that defendant serve a definite term of FIFTEEN (15) YEARS

TO LIFE IMPRISONMENT for the charge of Complicity to Commit Murder, a violation of

Ohio Revised Code Section 2903.02(B). In Count Two, the Defendant is ordered to serve a term

of TEN (10) YEARS in prison for the charge of Aggravated Robbery, a violation of Ohio

Revised Code Section 2911.01(A), a felony of the first degree.

The Court fmds pursuant to Revised Code Section 2929.14(C) that the shortest

prison term possible will demean the seriousness of the defendants conduct and will not

adequately protect the public.

The Court further finds that Defendant poses the greatest likelihood of

committing future crimes, and therefore imposes the longest prison term.

In addition, the Court finds that the harm in this case is so great or unusual that a

single term does not adequately reflect the seriousness of the conduct, and therefore

orders that the sentences run consecutively and shall be served at the Lorain Correctional

Institution at Grafton, Ohio.

In addition, as part of this sentence, post release control shall be imposed up to a

maximum period of five (5) years. Any violation of post release control could result in

the Defendant being returned to prison for a period of up to nine (9) months, with a

maximum period for repeated violations that could equal up to fifty (50) percent of the

stated term. If the violation is a new felony, the Defendant may be returned to prison for

the remaining period of post release control, or twelve (12) months, whichever is greater,

in addition to receiving a consecutive prison term for the new felony offense.

The Defendant is ORDERED conveyed to the custody of the Lorain Correctional

Institution at Grafton, Ohio. Credit for two hundred, eighteen (218) days is granted as of

this date along with future custody days while Defendant awaits transportation to the

appropriate state institution. The Court finds that the Defendant is indigent and thereby

suspends any fine and the costs incurred herein.

000097-)7 -

Defendant has been given notice under R.C. 2929.19(B)(3) and of appellate rights

under R.C. 2953.08.

S 1^(XoDATE:

l- 1JUDGE JOHN M. DURKIN

TO THE CLERK:Please provide a time stamped copy of theforegoing Judgment Entry to the following:

Attorney Ronald YarwoodMahoning County Prosecutor's Office

00009^^i- -

IN THE COURT OF APPEALSSEVENTH DISTRICT COURTMAHONING COUNTY, OHIO

STATE OF OHIO

Plaintiff/Appellee

V.

CRAIG FRANKLIN

Defendant/Appellant

11*10NING 067N;7^^,&I6

MAY 18 zaos^ 1-eD

Al^..,^'HONY vlv0. rL'e'RK

M.C. CASE NO: 05 CR 9B8 ^yC.A. CASE NO: -f)4^/

NOTICE OF APPEAL

Notice is hereby given that Craig Franklin, Defendant, hereby appeals to the Court of Appeals of

Mahoning County, Ohio, Seventh DisVict from the finaljudgment, entered and filed in this action.

(attached)

This appeal is filed as a matter of right.

RQfNAK-fS D. YARWOOD (#0068775)DeGenova, Frederick, Vouros & Yarwood, Ltd.The Uberty Building42 N. Phelps StreetYounpstown, Ohio 44503Tel: (330) 743-4116Fax: (330) 743-2536Counsel for DefendantlAppellant

CERTIFICATE OF SERVICE

I hereby certlfy that a true copy of the foregoing was

q Hand delivered

'l-6 Sent by regular U.S. mail

q Sent via fax

on the Ld y of May, 2006, to the Office of the Prosecuting Attomey, counsel for Plaintiff/Appellee,at 21 W. Boardman Street, Youngstown, Ohio 44503. '

-r/....

#0068775)fendanUAppellant

STATE OF OHIO ))

MAHONING COUNTY

STATE OF OHIO,

) SS:

iPLAINTIFF-APPE^EE O-^A` 2?

IN THE COURT OF APPEALS OF OHIO

SEVENTH DISTRICT

:4y rea 9ASE NO. 06-MA-79vs.

^8) / / JOURNAL ENTRYzpCRAIG FRANKLIN, Iq^,ry -1<^

DEFENDANT-APPELLAN

A9 ry

^ )/

For the reasons stated in the opitiafi rendered herein, appellant's four

assignments of error are without merit and are overruled. It is the final judgment and

order of this Court that the judgment of the Common Pleas Court, Mahoning County,

Ohio is affirmed.

Costs to be taxed against appellant.

^

STATE OF OHIO, MAHONING COPkTY

IN THE COURT OF APPEA

SEVENTH DISTRICTj

JSTATE OF OHIO ),

^- nNr FT ..vPLAINTIFF-APPELLEE, ) \o/

VS. CASE NO. A-706-M)

CRAIG FRANKLIN,)

DEFENDANT-APPELLANT.

OPINION

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of CommonPleas of Mahoning County, OhioCase No. 05CR988

JUDGMENT: Affirmed

APPEARANCES:For Plaintiff-Appellee

For Defendant-Appellant

JUDGES:

Hon. Gene DonofrioHon. Joseph J. VukovichHon. Cheryl L. Waite

Paul J. GainsProsecutorRalph M. RiveraAssistant Prosecutor21 W. Boardman St., 6th FloorYoungstown, Ohio 44503-1426

Attorney John P. Laczko4800 Market St., Suite CYoungstown, Ohio 44512

Dated: May 5, 2008

-1-

DONOFRIO, J.

{11} Defendant-appellant, Craig Franklin, appeals from a Mahoning County

Common Pleas Court judgment convicting him of complicity to commit murder and

complicity to commit aggravated robbery following a jury trial.

{¶2} This case concerns the robbery of Atway's Market in Youngstown, Ohio

on May 21, 2005. On that day, appellant and Jermaine Beverly entered Atway's

Market. Three others, Jamond Robinson, Christopher Garrett, and Eric Farmer,

followed seconds behind them. When the second group of boys entered the store,

they announced that they were robbing the store and appellant and Beverly then laid

down on the floor. AII of the boys were juveniles at the time.

{13} According to Atway Atway (Atway), one of the owners of Atway's

Market, two of the boys in the second group had guns. One of the boys put a gun in

the face of Ghalib Atway (Ghalib), another of the owners, and pushed him into a

candy rack. Atway then grabbed his own gun and fired two shots. One shot hit

Robinson in the leg. The other shot hit Farmer. Farmer later died.

{¶4} The three boys ran out of the store. Atway then put a toy gun to

appellant's and Beverly's heads. He asked them if they were with the other three

boys. Appellant and Beverly responded, "no." Atway then let them go.

{15} Robinson and Beverly eventually confessed to the police. They both

implicated appellant as the mastermind of the robbery.

{16} A Mahoning County grand jury indicted appellant by direct presentment

on October 6, 2005, charging him with one count of murder, a first-degree felony in

violation of R.C. 2903.02(B)(D), and one count of aggravated robbery, a first-degree

felony in violation of R.C. 2911.01(A)(1), both with accompanying firearm

specifications.

{¶7} The matter proceeded to trial on April 17, 2006. The jury found

appellant guilty of complicity to commit murder and complicity to comrnit aggravated

robbery and found him not guilty of the firearm specifications. The trial court

subsequently sentenced appellant to 15 years to life on the complicity to commit

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murder count and ten years on the complicity to commit aggravated robbery count, to

be served consecutively.

{18} Appellant filed a timely notice of appeal on May 18, 2006.

{19} Appellant raises four assignments of error, the first of which states:

{110} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY PROHIBITING TRIAL COUNSEL FROM CROSS-EXAMINING APPELLEE'S

WITNESS, JAMOND ROBINSON, RELATIVE TO HIS BIAS OR MOTIVE TO

TESTIFY AGAINST APPELLANT CONSIDERING HIS CURRENT PLEA DEAL

WITH APPELLEE."

{111} At trial, plaintiff-appellee, the State of Ohio, called Jamond Robinson to

testify. Robinson was one of appellant's co-defendants. Appellant's counsel wanted

to question Robinson about his probation status in a rape case. (Tr. 344-47). He

wished to question Robinson about whether Robinson had worked out a deal with

the state whereby his probation would not be violated if he testified against appellant.

(Tr. 346). But the court did not permit such questioning. (Tr. 344-47). The court

noted that there was no probation violation hearing set and no motion had been filed

to revoke Robinson's probation. (Tr. 347). The court stated that to allow appellant's

counsel to question Robinson about the rape case would go to Robinson's character

and not specifically to any bias Robinson might have in the present case. (Tr. 345).

(112) Appellant argues that the trial court erred in not allowing his counsel to

question Robinson about the rape case, Robinson's probation status, and

Robinson's desire to keep the current charges against him in juvenile court.

Appellant asserts that such questioning would have revealed Robinson's bias and

improper motive for testifying against him.

{113} The Sixth Amendment to the Uriited States Constitution and the Ohio

Rules of Evidence guarantee a criminal defendant the right to confront the witnesses

against him for the biases they may hold. State v. Miller, 11th Dist. No. 2004-T-

0082, 2005-Ohio-5283, at ¶32. And while cross-examination of a witness is a matter

of right, the "'extent of cross-examination with respect to an appropriate subject of

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inquiry is within the sound discretion of the trial court."' State v. Green (1993), 66

Ohio St.3d 141, 147, 609 N.E.2d 1253, quoting Alford v. United States (1931), 282

U.S. 687, 691, 694, 51 S.Ct. 218, 75 L.Ed. 624. Hence, we will review the trial

court's decision limiting the cross-examination of Robinson for an abuse of

discretion. Abuse of discretion is more than a mere error of judgment; it is conduct

that is arbitrary, capricious, unreasonable, or unconscionable. State v. Moreland

(1990), 50 Ohio St.3d 58, 61, 552 N.E.2d 894.

{114} Evid.R. 616(A) provides that a witness may be impeached by "[b]ias,

prejudice, interest, or any motive to misrepresent." Thus, appellant was permitted to

cross-examine Robinson regarding his motive for testifying and any bias he might

have against appellant.

{115} Appellee points us to a similar case from the Eighth District. In State v.

Mitchell, 8th Dist. No. 88977, 2007-Ohio-6190, the defendant argued on appeal that

the trial court erred in limiting his counsel's cross-examination of his co-defendant

regarding her plea deal. The court relied on its previous decision in State v.

Gresham, Eighth Dist. No. 81250, 2003-Ohio-744, where it reasoned:

{116} "'While we agree that a plea bargain may provide a motive to

misrepresent the facts, and therefore is a proper subject of cross-examination, cf.

Evid.R. 616(A), the specific extent of the benefit the plea bargain provided to the

witness is not relevant to this purpose. The fact that the witnesses agreed to plead

guilty to lesser charges and to testify against appellant is sufficient to demonstrate

the witness' potential motive to misrepresent the facts. A comparison of the potential

penalties under the plea agreement.versus the original charges does not add to this

demonstration."' Mitchell, at ¶60, quoting Gresham, at ¶11.

{117} The court then concluded that the trial court did not abuse its discretion

in limiting the co-defendant's testimony. Id, at ¶61. It pointed out that defense

counsel attempted to elicit the potential sentence the co-defendant would receive for

her testimony. Id. And it noted that the co-defendant testified that she agreed to

plead guilty to lesser charges in exchange for testifying against the defendant. Id.

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The court concluded that the testimony was sufficient to demonstrate the co-

defendant's potential bias. Id.

{118} The same reasoning applies here. On cross-examination, Robinson

testified that in exchange for his testimony against appellant, the state agreed to

dismiss the murder charge and accompanying firearm specification against him. (Tr.

286-87, 291, 293). Along with dismissing the firearm specification, Robinson

admitted that he was no longer facing the mandatory prison time that accompanied

the specification. (Tr. 287). He also admitted that there was a question as to

whether he might be able to keep the remaining charges against him in juvenile court

rather than being bound over to common pleas court. (Tr. 288-89). Additionally,

upon questioning by appellant's counsel, Robinson admitted that at first he lied to

police about his involvement in the robbery. (Tr. 284-85). And he admitted that he

was not going to testify in this case until he had a deal worked out. (Tr. 286).

{119} Given Robinson's testimony on cross-examination, appellant's counsel

clearly established that Robinson's motive for testifying in this case was to get the

charges against him and possible penalties reduced. Appellant's counsel brought to

the jury's attention that, in exchange for his testimony, the state dropped a murder

charge and a firearm specification against Robinson. Counsel also brought to the

jury's attention that if Robinson cooperated with the state, he might be able to remain

in the juvenile court system instead of being bound over to the common pleas court.

Counsel also brought to the jury's attention that Robinson initially lied to police about

his involvement in the robbery. Thus, appellant amply cross-examined Robinson

regarding his bias in this case and his motive for testifying.

{120} Any further testimony on the subject would have been curnulative and

highly prejudicial. Appellant's counsel wanted to bring up Robinson's rape case.

The fact that Robinson was involved in a rape would have been highly prejudicial.

Furthermore, as the trial court pointed out, no motion to revoke Robison's probation

had been filed. Thus, any testimony on the subject would have been merely

speculation. And most importantly, appellant's counsel had already plainly

-5-

established that Robinson's motive for testifying in this case was to get a good deal

for himself.

{1121} Therefore, the trial court did not abuse its discretion in limiting

counsel's cross-examination of Robinson. Accordingly, appellant's first assignment

of error is without merit.

{122} Appellant's second assignment of error states:

{¶23} "THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTION FOR

COMPLICITY TO MURDER AND AGGRAVATED ROBBERY WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND THE JURY'S VERDICT WAS

INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTED AT

TRIAL."

{124} Here, appellant argues that the jury's verdict was against the manifest

weight of the evidence. Appellant contends that the only evidence in support of his

conviction came from Robinson and another co-defendant, Jermaine Beverly, who

both gave prior inconsistent statements and who were both offered plea deals for

their testimony. Appellant asserts that the other evidence presented merely

established that he was at Atway's Market when the robbery took place. He

contends that his "mere presence" at the scene was not enough to prove that he was

involved in the plan to rob Atway's Market.

{¶25} In determining whether a verdict is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences and determine 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. State v.

Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. "Weight of the

evidence concerns 'the inclination of the greater amount of credible evidence,

offered in a trial, to support one side of the issue rather than the other."' Id.

(Emphasis sic.) In making its determination, a reviewing court is not required to view

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the evidence in a light most favorable to the prosecution but may consider and weigh

all of the evidence produced at trial. Id. at 390.

{126} The jury convicted appellant of complicity to commit murder and

complicity to commit aggravated robbery.

{127} R.C. 2903.02(B) provides in pertinent part:

{¶28} "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 ***."

{129} R.C. 2911.01(A)(1) provides in relevant part:

{130} "(A) No person, in attempting or committing a theft offense *** or in

fleeing immediately after the attempt or offense, shall do any of the following:

{131} "(1) Have a deadly weapon on or about the offender's person or under

the offender's control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it."

{132} Because the jury convicted appellant of complicity by aiding or abetting,

R.C. 2923.03(A)(2) also applies, which provides: "No person, acting with the kind of

culpability required for the commission of an offense, shall ***[a]id or abet another

in committing the offense."

{¶33} The evidence at trial revealed the following.

{134} Robinson testified first. He stated that on the day of the robbery, he

went to appellant's house. (Tr. 268). Robinson stated that he hung out there with

appellant and Christopher Garrett and later Jermaine Beverly and Eric Farmer came

over. (Tr. 269). Robinson stated that appellant then brought up the idea of a

robbery. (Tr. 269). According to Robinson, appellant said "Let's hit a. lick," which

meant commit a robbery. (Tr. 270). Appellant told the others that they could rob the

store where his mother cashed her checks on the north side of Youngstown. (Tr.

270). The group then got in Beverly's car and drove to the store on the north side.

(Tr. 272).

{135} Robinson stated that Beverly parked the car at an abandoned house

a`r

-7-

and appellant went into the store alone to see who was there. (Tr. 272-73). He

testified appellant was in the store for a couple seconds and then came back to the

group. (Tr. 273). Robinson stated that appellant reported that the two owners were

in the store. (Tr. 273). He stated that appellant instructed the group what to do. (Tr.

274). According to Robinson, appellant said that he and Beverly were going to act

as hostages. (Tr. 273-74). Farmer was to get the money. (Tr. 274). Robinson was

to watch the door. (Tr. 274). And appellant, although it seems Robinson meant

Garrett, was to hold the owner up with a gun. (Tr. 274).

{¶36} Next, Robinson stated that appellant and Beverly went into the store.

(Tr. 274). He stated that he and the others waited a couple of seconds and then

followed them in. (Tr. 274). Robinson stated that he was dressed in all black with a

do-rag on his head and a bandana around his neck. (Tr. 275). He stated that the

others were dressed in black too and that Garrett also had a do-rag and a bandana.

(Tr. 275). Robinson stated that Garrett picked up a gun and said "[e]verybody put

their hands up, it's a robbery." (Tr. 275). Robinson stated that one of the men in the

store grabbed Garrett's hand and the two started wrestling. (Tr. 276). Robinson

pushed the man off of Garrett and the man fell into a candy stand. (Tr. 276). Next,

Robinson heard a gunshot. (Tr. 276). He then ran out of the store. (Tr. 276-77).

Robinson stated that appellant was in the store the entire time. (Tr. 277).

{137} Robinson stated that he was shot in the leg. (Tr. 279). He went to

Beeghly Medical Center for care. (Tr. 280). When asked by the Beeghly security

guard what happened, Robinson lied and told the guard that he was at a robbery.

(Tr. 280). Robinson stated that he was transferred to St. Elizabeth's Hospital. (Tr.

281). While there, the police came to question him. (Tr. 281). Initially, Robinson

told the police the same lie he told to the security guard. (Tr. 281). The police then

told him that Farmer had died. (Tr. 282). Robinson stated that after he learned of

his friend's death, he told the police the truth of what happened because his friend

had just died and he felt responsible for the death. (Tr. 282).

{138} Robinson further testified that he told the police the truth and they then

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told him that they would tell the prosecutor that he cooperated and they would work a

deal out for him. (Tr. 283). Additionally, Robinson testified as to his plea deal and

his motivation for testifying as set out in appellant's first assignment of error.

{¶39} Next, Atway testified. He stated that on the day in question, he was

working at the store with his brother Ghalib, who had brought his six-year-old

grandson along with him. (Tr. 309). Atway stated that prior to the robbery, appellant

came into the store alone and asked if Atway would cash his mother's check. (Tr.

309). Appellant told Atway that he was going to get his grandmother's slip to play

her lottery numbers and then he left. (Tr. 309). Atway testified that he knew

appellant and his family. (Tr. 310).

{1140} Atway testified that approximately 20 minutes later appellant returned

with another guy. (Tr. 311). Atway stated that appellant placed 50 cents on the

counter and asked for a juice. (Tr. 311). Atway testified that as soon as appellant

put the money on the counter, the robbers barged in and put a gun in his face and in

his brother's face. (Tr. 311). He stated that one of the robbers pushed Ghalib into a

candy rack. (Tr. 311). Atway then grabbed his own gun and fired at the robber who

had the gun on him and then fired at the robber who had the gun on his brother. (Tr.

311).

{141) Atway stated that when the robbers barged in, appellant and the

person he was with "went to the floor." (Tr. 312). After the robbers ran out, Atway

put a fake gun to appellant's and the other boy's heads and asked if they were with

the robbers. (Tr. 312). Atway stated that the two denied their involvement and he let

them go. (Tr. 312). He also stated that the two were wearing "regular" clothes. (Tr.

314).

{1142} Ghalib testified next. He stated that he was fixing the chips and candy

on a rack when someone came in the store wearing a mask and put a gun in his

face. (Tr. 333). The person punched him in the chest and he fell into the candy

rack. (Tr. 333-34). Ghalib stated that as he was trying to get up, he heard a

gunshot. (Tr. 334). He stated that after he heard gunshots fired, everyone ran from

^ ^f

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the store. (Tr. 336).

{143} Ghalib stated that he took the gun from his brother, went outside, and

fired the gun into the air. (Tr. 336). He stated that this alerted the St. Elizabeth's

Hospital Police, who came to his aid. (Tr. 336).

{144} St. Elizabeth's Police Officer Robert Martin testified next. He stated

that he heard gunshots. (Tr. 354). He then ran toward the shots when he noticed a

man running from the area. (Tr. 354). Officer Martin chased the man and searched

for him but did not locate him. (Tr. 355-56).

{145} Next, St. Elizabeth's Police Officer Troy Fares testified. He stated that

he was directed to the area by Officer Martin. (Tr. 362). He stated that he received

information that one of the robbers was headed east up Lexington Avenue. (Tr.

364). He found a black male dressed in all black lying in the street at the intersection

of Foster and Broadway. (Tr. 365). He stated that the person he found had been

shot but was still alive at that time. (Tr. 365).

{146} Co-defendant Beverly was the next to testify. He stated that on the day

of the robbery, he and Farmer went to appellant's house. (Tr. 371). Beverly drove

even though he was only 15 years old at the time. (Tr. 372). When Beverly and

Farmer arrived, appellant, Garrett, and Robinson were already there. (Tr. 373).

Beverly spent about ten minutes inside appellant's house and then went back out to

his car with Farmer. (Tr. 374). Farmer then went back in the house while Beverly

waited in the car. (Tr. 374-75). Farmer came back out to the car and told Beverly

what the boys had talked about in the house. (Tr. 375). Based on this conversation,

Beverly and Farmer waited in the car until appellant, Garrett, and Robinson came out

and got in the car. (Tr. 375-76).

{147} Once all five boys were in the car, appellant told Beverly he knew

where to "hit a lick at." (Tr. 376). According to Beverly, appellant stated that they

could rob Atway's Market on the north side where his mother cashed her checks.

(Tr. 377). Beverly testified that appellant said he knew Atway's kept more than $500

in the store and that there would only be two people there without guns. (Tr. 377).

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Beverly stated that because he was from the south side of Youngstown, he did not

know how to get to Atway's. (Tr. 377). So appellant directed him which way to go.

(Tr. 377).

{148} Once the boys reached Atway's, Beverly parked the car at an

abandoned house nearby. (Tr. 378). While the others waited in the car, appellant

went into the store to see where the owner was. (Tr. 378). Beverly stated that when

appellant returned to the car, he reported that there were only two old men in the

store. (Tr. 379). Beverly stated that appellant told the group that he would go back

in and the others were to follow and rob the store. (Tr. 379).

{149} Beverly testified that he accompanied appellant back to the store. (Tr.

380). Before going in, Beverly stated that they stopped at a pay phone. (Tr. 380).

He stated that appellant picked up the phone for five seconds, did not appear to talk

to anyone, and then put the phone back down. (Tr. 380-81). The two then walked

into the store. (Tr. 381). Beverly stated that they walked up to the counter and then

Robinson, Garrett, and Farmer came in with rags on their faces and ordered

everybody to lie down. (Tr. 382-83). He stated that he and appellant both laid down.

(Tr. 383). Beverly stated that Garrett pushed one of the old men against a candy

rack and the man fell. (Tr. 384). Beverly then heard gunshots. (Tr. 384). He

testified that Robinson, Garrett, and Farmer all ran from the store. (Tr. 384). Beverly

stated that he and appellant then got up off the ground. (Tr. 385). He stated that the

old man behind the counter pointed a gun at him and asked Beverly if he was with

the robbers. (Tr. 385). Beverly lied and told him "no." (Tr. 385). The man then let

him go. (Tr. 385).

{150} Afterwards, Beverly got back in his car with appellant and Garrett and

the three went looking for Robinson. (Tr. 389). After a while, they gave up their

search and went back to appellant's house. (Tr. 390).

(751) Beverly further testified that when the police first questioned him about

his involvement in the robbery, he lied. (Tr. 391-92). He stated that he later told the

police the truth because he did not want to get caught up in lies and because his

mother was with him and he did not want to lie in front of her. (Tr. 392). Beverly

stated that he had no idea if he was going to go to prison for this case. (Tr. 393).

And on cross-examination, Beverly stated that he did not know what his plea deal

was. (Tr. 401-406). But he admitted talking with prosecutors the day before the trial.

(Tr. 402). And he admitted that they talked about what he was going to testify to.

(Tr. 408-409).

{152} Finally, Latonya White testified. She was on her way to Atway's Market

when she noticed two boys standing by the pay phone in front of the store. (Tr. 416).

She noticed that one of the boys put the phone to his ear but never put any money

into the phone or dialed a number. (Tr. 416). White then saw three more boys

walking down the street who appeared to be overdressed for the weather, i.e.

wearing knit caps and scarves in the warm weather. (Tr. 417). She stated that the

two boys by the phone entered the store and the other three followed them in. (Tr.

420, 424).

(153) The jury's verdict is supported by the weight of the evidence. To

support appellant's convictions for complicity, the evidence had to demonstrate that

appellant supported, assisted, encouraged, cooperated with, advised, or incited the

other boys in the commission of the crime, and that appellant shared their criminal

intent. State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, at the syllabus.

His intent can be inferred from the circumstances surrounding the robbery. Id.

Participation in criminal intent may be inferred from one's presence, companionship,

and conduct before and after the offense is committed. Id. at 245, citing State v.

Pruett (1971), 28 Ohio App.2d 29, 34, 273 N.E.2d 884.

{154} In this case, there was no question that a robbery took place at Atway's

Market and that Farmer was shot and killed as a result. The jury was faced with

determining whether appellant was involved in this robbery. This case hinged on

whether the jury believed Robinson's and Beverly's testimony. Both were appellant's

cohorts, both received plea deals in exchange for their testimony, and both initially

denied their involvement in the robbery. Importantly, both testified that appellant was

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the mastermind behind the plan to rob Atway's Market. Robinson and Beverly

testified that appellant suggested to the group of boys that they could "hit a lick" at

the store where his mother cashed her checks. They both testified that once the

group arrived at the store, appellant went in to scope things out. And they both

testified that appellant came up with the plan that he and Beverly would go in first.

Furthermore, Beverly testified that appellant directed him how to get to Atway's

Market. This evidence demonstrates that appellant shared the criminal intent of his

cohorts.

{155} Furthermore, Robinson's and Beverly's testimony corroborated each

other. Both boys testified to substantially the same facts. And certain testimony

given by other witnesses supported Robinson's and Beverly's testimony. Atway

testified that on the day of the robbery, appellant first came into the store alone.

Atway further stated that he frequently cashed appellant's mother's checks. And

White testified that she saw the two boys at the pay phone outside of Atway's Market

enter the store followed immediately by three other boys.

{156} Although an appellate court is permitted to independently weigh

witnesses' credibility when determining whether a conviction is against the manifest

weight of the evidence, we must give great deference to the fact finder's

determination of credibility. State v. Wright, 10th Dist. No. 03AP-470, 2004-Ohio-

677, at ¶11. The policy underlying this presumption is that the trier of fact is in the

best position to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use these observations in weighing credibility. Id.

{¶57} In this case, the jurors assessed Robinson's and Beverly's testimony

and found them to be credible. The jurors found this in spite of the fact that the two

boys had previously lied to police and received plea deals for their testimony. This

was the jurors' prerogative. Because they listened to all of the testimony and

observed the witnesses, they were in the best position to judge the witnesses'

credibility. Therefore, we cannot conclude that the jury clearly lost its way and

created a manifest miscarriage of justice. The verdict is supported by the weight of

g 7

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the evidence.

{158} Accordingly, appellant's second assignment of error is without merit.

{159} Appellant's third assignment of error states:

{160} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY OVERRULING HIS MOTION TO DETERMINE THE PROSECUTOR WAS

USING HIS PEREMPTORY CHALLENGES TO EXCLUDE RACIAL MINORITIES BY

EXCUSING THE AFRICAN-AMERICAN MEMBERS OF THE VENIRE PANEL IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT[S] TO THE

UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION."

{161} Appellant contends here that the prosecutor impermissibly used her

peremptory challenges to excuse two potential African-American jurors on the jury

venire. Appellant contends that the reasons the prosecutor gave for excusing the

two potential jurors were merely pretextual.

{162} A prosecutor violates the Equal Protection Clause of the United States

Constitution when she uses peremptory challenges to purposefully exclude members

of a minority group because of their race. Batson v. Kentucky (1986), 476 U.S. 79,

85-86, 106 S.Ct. 1712, 90 L.Ed.2d 69.

{163} The Ohio Supreme Court has set out the steps for analyzing a Batson

challenge as follows:

{¶64} "First, the opponent of the peremptory strike must make a prima facie

case of racial discrimination. Second, if the trial court finds that the opponent has

fulfilled this requirement, then the proponent of the strike must come forward with a

racially neutral explanation for the strike. The 'explanation need not rise to the level

justifying exercise of a challenge for cause.'

{165} "Third, if the proponent puts forward a racially neutral explanation, the

trial court must decide, on the basis of all the circumstances, whether the opponent

has proved purposeful racial discrimination. The burden of persuasion is on the

opponent of the strike." (Internal citations omitted.) State v. Herring, 94 Ohio St.3d

-14-

246, 255-56, 762 N.E.2d 940, 2002-Ohio-796.

{166} An appellate court will not reverse the trial court's decision that there

was no discrimination unless it is clearly erroneous. State v. Hemandez (1992), 63

Ohio St.3d 577, 583, 589 N.E.2d 1310. Because these issues turn largely on

evaluations of credibility, trial judges supervising voir dire are best equipped to

resolve discrimination claims in jury selection. Hicks v. Westinghouse Materials Co.

(1997), 78 Ohio St.3d 95, 102, 676 N.E.2d 872, citing Batson, 476 U.S. at 98, fn. 21.

{167} In this case, three African-American potential jurors were seated in the

jury box during voir dire. (Tr. 225). The state used its first peremptory challenge to

excuse Juror Wilkins, an African American. (Tr. 173, 225). Appellant's counsel then

requested a side bar, which was held off the record. (Tr. 174). The state used its

second peremptory challenge to excuse Juror Hanni, a Caucasian. (Tr. 187, 227).

The state then used its third peremptory challenge to excuse Juror McCall, an

African American. (Tr. 202). Again, appellant's counsel requested a side bar, which

was also off the record. (Tr. 203). Finally, the state used its fourth peremptory

challenge to excuse Juror Belak, a Caucasian. (Tr. 215, 229).

{¶68} After the parties exhausted their peremptory challenges, the court held

a discussion with counsel. The court noted that appellant's counsel had raised

Batson challenges when the state used peremptory challenges to excuse two

African-American potential jurors. (Tr. 223-24). It also noted for the record that

appellant is African American. (Tr. 224). And the court noted that the jury included

one African American, Juror Drayton. (Tr. 224).

{169} The state then gave its reasons for excusing the two African

Americans. As to Juror Wilkins, the prosecutor pointed out that Juror Wilkins'

brother had been involved in the shooting of Ernie Biondillo, a man with alleged mob

ties, and the shooting of the Mahoning County Prosecutor, Paul Gains. (Tr. 227).

The prosecutor noted that Juror Wilkins stated that he was very close to his brother

and followed the entire proceedings surrounding his brother's case. (Tr. 227). The

prosecutor stated that the state had concerns that Juror Wilkins may have had more

^;L k

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knowledge of those shootings and never came forward. (Tr. 227). Thus, the

prosecutor thought that Juror Wilkins might not be truthful and might not be able to

be fair and impartial. (Tr. 227).

{170} As to Juror McCall, the prosecutor noted that Juror McCall had not

heard everything counsel had said during the general voir dire. (Tr. 228). He stated

that this caused concerns that she might not pay attention to the entire jury trial and

might only pick up bits and pieces. (Tr. 228). Additionally, the prosecutor pointed

out that Juror McCall first indicated that the state would have to have proof "beyond

all doubt." (Tr. 228). He noted that it was not until further prodding that she said,

"Well, if it's proved beyond a reasonable doubt, I guess I could follow the law." (Tr.

228). But the prosecutor noted that Juror McCall was less than enthusiastic. (Tr.

228).

{171} Additionally, it should be noted that about half-way through the trial, the

trial court sua sponte dismissed Juror Drayton, the lone African-American juror, from

the jury. (Tr. 342). The court did so because it was called to the court's attention

that Juror Drayton was a former employee of the Juvenile Justice Center (JJC) and

Juror Drayton failed to disclose this fact to the court or counsel even though it was a

question on the jury questionnaire. (Tr. 342-43). The court pointed out that another

prospective juror was an employee at the JJC and the court and counsel conducted

an individual voir dire of him because the witnesses/co-defendants had juvenile

records. (Tr. 343). Since Juror Drayton was not truthful about his employment at the

JJC, the court and counsel were not able to question him concerning whether he

knew any of the witnesses or codefendants and for that reason, the court excused

Juror Drayton. (Tr. 343). At that time, appellant's counsel renewed his Batson

challenge. (Tr. 344). However, appellant's counsel noted that he was not

challenging the court's removal of Juror Drayton, but was instead arguing that this

situation made the presence of Juror McCall even more important. (Tr. 344).

{172} Juror Wilkins' and Juror McCall's answers during voir dire support the

prosecutor's reasons for their excusal.

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{¶73} Juror Wilkins stated that his brother was involved in the shootings of

Biondillo and Prosecutor Gains and that he followed the case "all the way through."

(Tr. 162-63). He stated he was close with his brother. (Tr. 163). Juror Wilkins

stated that his brother was convicted under the RICO Act and sentenced to 11 years

in prison. (Tr. 164). He also acknowledged that Prosecutor Gains was the boss of

the two prosecutors involved in this case. (Tr. 164). However, Juror Wilkins stated

that he could still remain fair and impartial in this case. (Tr. 165).

{¶74} Juror Wilkins' close involvement in the case surrounding the shooting

of the Mahoning County Prosecutor and a man with alleged mob ties gave the

prosecutor reason to believe that Juror Wilkins might harbor some resentment

towards the state. Furthermore, the prosecutor seemed to believe that Juror Wilkins

may have known more about his brother's case than he admitted to, and, for that

reason, may have been untruthful.

{775} As to Juror McCall, when questioned by the prosecutor regarding an

example she had given earlier to the potential jurors, Juror McCall did not recall the

example. (Tr. 192). Additionally, earlier during voir dire, the prosecutor spent

considerable time discussing the reasonable doubt standard. (Tr. 91-99). When the

prosecutor later questioned Juror McCall regarding the burden of proof the following

exchange took place:

{176} "MS. ARNAUT: Okay. Do you think reasonable doubt - - do you think

we have to prove our case by 100 percent beyond all doubt?

{177} "MS. McCALL: Yeah, you're supposed to prove your case.

{1178} "MS. ARNAUT: But do you think everything is subject to some small

doubt?

{179} "MS. McCALL: Everything is.

(¶80) "MS. ARNAUT: Everything is?

{181} "MS. McCALL: Uh-huh.

{182} "MS. ARNAUT: So are you going to hold us to a higher standard than

that, knowing that everything is subject to some small doubt?

V-4

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{¶83} "MS. McCALL: Am I going to hold you to a higher standard?

{184} "MS. ARNAUT: Yes.

{185} "MS. McCALL: Yes, I guess.

{186} "MS. ARNAUT: Okay. Even if the law says that we're not required to

prove our case beyond all doubt?

{¶87} "MS. McCALL: The law says that you are required to prove your case;

doesn't it?

{¶88} "MS. ARNAUT: Yes. Beyond a reasonable doubt, not beyond all

doubt.

{1189} "MS. McCALL: Oh. Beyond a reasonable doubt?

{190} "MS. ARNAUT: Yes."

{¶91} Juror McCall then stated that she would be able to follow the law. (Tr.

192).

{¶92} These statements by Juror McCall support the prosecutor's reasons for

excusing her. It seems that Juror McCall did not pay attention to the discussion

about the burden of proof or the prosecutor's examples. And it seems that Juror

McCall may have given the prosecutor reason to believe that she would hold the

state to a higher standard than proof beyond a reasonable doubt.

{¶93} Regarding both Juror Wilkins and Juror McCall, the prosecutor gave

valid, race-neutral explanations for their excusals. "The issue is the facial validity of

the prosecutor's explanation; unless a discriminatory intent is inherent in the

prosecutor's explanation, the reason offered will be deemed race neutral." State v.

Betts, 8th Dist. No. 88607, 2007-Ohio-5533, at ¶65, citing Purkett v. Elem (1995),

514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834, quoting Hernandez v. New

York (1991), 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395. Furthermore,

appellant was not able to demonstrate that these reasons were merely pretexts.

Thus, the trial court's ruling on the issue was clearly erroneous.

{¶94} Accordingly, appellant's third assignment of error is without merit.

{195} Appellant's fourth assignment of error states:

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{¶96} "THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S

MOTION TO DISMISS THE MURDER COUNT OF THE INDICTMENT SINCE A

CRIMINAL DEFENDANT CANNOT BE HELD CRIMINALLY LIABLE FOR THE

DEATH OF AN ACCOMPLICE UNDER THE FELONY MURDER RULE."

{197} Appellant argues that in order to find him guilty of murder, the jury

would have to find him guilty of aggravated robbery, and in order to find him guilty of

aggravated robbery it would have to find that he had a firearm on his person or under

his control and that he displayed, brandished, indicated he had, or used the firearm.

Appellant points out that the jury found him not guilty of both firearm specifications.

Thus, he argues that the jury's finding that he was guilty of murder and aggravated

robbery are inconsistent with its finding of not guilty on the firearm specifications.

{198} The jury found appellant guilty of complicity to commit aggravated

robbery and complicity to commit murder. It also found him not guilty of the

accompanying firearm specifications. However, these findings are not inconsistent.

{199} The jury did not find appellant guilty as a principal. Instead, they found

that appellant aided and abetted in the aggravated robbery. As stated above,

appellant's complicity could be proven by a showing that he supported, assisted,

encouraged, cooperated with, advised, or incited the other boys in the commission of

the robbery, and that appellant shared their criminal intent. Johnson, 93 Ohio St.3d

at the syllabus. Thus, the jury was not required to find that appellant was the person-

who displayed, brandished, or used a firearm. It could have found that one of

appellant's cohorts displayed, brandished, or used a firearm in the commission of the

robbery. The evidence clearly demonstrated that two of appellant's cohorts had

guns and pointed them at Atway and Ghalib. Thus, the jury's verdict was not

inconsistent.

{1100} Next, appellant argues that the trial court should have granted his

motion to dismiss the murder count of the indictment. Appellant contends that he

cannot be held criminally liable for Farmer's death because Farmer was shot and

killed by the victim of the robbery that appellant alleges he was not involved in.

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{¶101} As discussed above, the evidence demonstrated that appellant was

involved in the robbery by way of aiding and abetting. Hence, appellant's argument

that he was not involved in the robbery and, therefore, he cannot be guilty of the

murder, is not convincing.

{1102} Appellant further asserts that it is unclear whether Ohio, in applying

the felony-murder rule, follows the proximate cause theory. Additionally, he argues

that the felony-murder rule does not apply when the murder victim was not

"innocent."

{1103} On June 30, 1998, the Ohio Legislature amended the murder statute

to include felony murder. Prior to that time, murder only involved purposeful killings.

R.C. 2903.02(B), the felony-murder rule, now provides:

{¶104} "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 and that is not a violation of section 2903.03

[voluntary manslaughter] or 2903.04 [involuntary manslaughter] of the Revised

Code." (Emphasis added.)

{¶105} As appellee points out, there is no requirement in the felony-murder

rule that the murder victim must have been innocent.

{1106} Both parties point to State v. Dixon, 2d Dist. No. 18582, 2002-Ohio-

541, (abrogation recognized on other grounds), as being one of the few cases that

addresses whether the proximate cause theory applies to the felony-murder rule.

The facts of Dixon are nearly identical to the facts of this case. Dixon was convicted

of felony murder for the death of his accomplice when he and his accomplice joined

in an armed robbery, during the commission of which, the intended victim shot and

killed the accomplice. On appeal, Dixon argued that he could not be held

responsible for the death of his accomplice when the accomplice was killed by the

intended victim of the robbery. The Second District examined the issue in detail:

{1107} "With respect to felony murder, two opposing theories of criminal

responsibility exist. Under the 'agency theory,' the State must prove that either the

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defendant or someone acting in concert with him, an accomplice, killed the victim

and that the killing occurred during the perpetration of and in furtherance of the

underlying felony offense. Moore v. Wyrick (8th Cir., 1985), 766 F.2d 1253; State v.

Chambers (1977), 53 Ohio App.2d 266, 56 ALR3d 239. Under the 'proximate cause

theory,' it is irrelevant whether the killer was the defendant, an accomplice, or some

third party such as the victim of the underlying felony or a police officer. Neither

does the guilt or innocence of the person killed matter. Defendant can be held

criminally responsible for the killing regardless of the identity of the person killed or

the identity of the person whose act directly caused the death, so long as the death

is the 'proximate result' of Defendant's conduct in committing the underlying felony

offense; that is, a direct, natural, reasonably foreseeable consequence, as opposed

to an extraordinary or surprising consequence, when viewed in the light of ordinary

experience. Id; State v. Bumgardner (August 21, 1998), Greene App. No. 97-CA-

103, unreported; State v. Lovelace (1999), 137 Ohio App.3d 206, 738 N.E.2d 418.

{1108} "Reviewing the precise wording used in the felony murder statute at

issue, R.C. 2903.02(B), that provision states that 'no person shall cause the death of

another as a proximate result of' committing or attempting to commit an offense of

violence that is a felony of the first or second degree. That wording clearly indicates

an intent on the part of the Ohio legislature to adopt a proximate cause standard of

criminal liability.

{1109} "In State v. Chambers, supra, the Court of Appeals reviewed the

involuntary manslaughter statute, R.C. 2903.04(A), the operative language of which

is virtually identical to R.C. 2903.02(B) with respect to causation: 'no person shall

cause the death of another ... as a proximate result of' committing or attempting to

commit a felony. Upon facts nearly identical to those in the case before us, where

defendant's accomplice was shot and killed by the victim of the underlying felony

offense while resisting that crime, the Court of Appeals in Chambers concluded that

defendant could be held criminally liable for involuntary manslaughter for the death

of his accomplice. The Chambers Court reasoned that the Ohio legislature had

^/

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manifested its intent, through the precise language used in the involuntary

manslaughter statute, to follow the prokimate cause theory, rather than agency, as

the basis for criminal responsibility.

{1110} "We conclude that the proper interpretation of the felony murder

statute at issue in this case compels the same result as that reached in Chambers,

because R.C. 2903.02(B) employs the exact same causation language, which

demonstrates the legislature's intent to adopt proximate cause as the standard of

criminal responsibility for R.C. 2903.02(B)." (Emphasis sic.) Id.

{¶111} This court has previously approved of Dixon's conclusion that it is

irrelevant, under the felony-murder rule, whether the killer is the defendant, an

accomplice, or a third party such as the victim. State v. Kimble, 7th Dist. No. 06-MA-

190, 2008-Ohio-1539, at ¶35-37. We also cited to Dixon's statement that the guilt or

innocence of the person killed is likewise irrelevant. Id.

{1112} The Eighth District has also approved of Dixon's reasoning, holding

that a defendant may be held criminally liable for the unintended death that results

from the commission of a first- or second-degree felony. See State v. Muntaser, 8th

Dist. No. 81915, 2003-Ohio-5809, at ¶26-27. And in State v. Ervin, 8th Dist. No.

87333, 2006-Ohio-4498, the Eighth District analyzed another felony-murder situation

where the murder victim was a kidnapped FBI informant and an FBI special agent

accidentally shot and killed the informant during a confrontation with the kidnappers.

The court applied the "proximate result of' test and Dixon's reasoning:

{1113} "In this case, the evidence revealed that there was more than one

cause of Lester's death. The intervening act of SA Werth shooting at the driver of

the vehicle was the most immediate and obvious cause of Lester's death, but not the

sole and exclusive cause. Had Ervin and Waller not kidnapped Lester and

demanded a sum of money or drugs for his return, Lester would not have been shot.

Had Ervin surrendered at the scheduled drop-off when the FBI SWAT team

converged on his vehicle and had Ervin not driven his vehicle at SA Werth, Lester,

the front-seat passenger, would not have been shot and killed. By kidnapping

-22-

Lester, attempting to avoid apprehension, and driving at SA Werth, Ervin and Waller

set in motion a chain of events in which one of the reasonably foreseeable

consequences was the death of Lester, Thus, Ervin and Waller's conduct was a

proximate cause of Lester's death for which Ervin is criminally responsible." Id. at

¶25.

{¶114} Dixon's reasoning is persuasive. The legislature specifically chose to

use the words "as a proximate result of' in writing the felony-niurder statute. By doing

so, it is reasonable to conclude that the legislature specifically intended to include

any situation where someone is murdered "as a proximate result of' an offender

committing or attempting to commit an offense of violence that is a first- or second-

degree felony.

{¶115} Additionally the Eleventh District, while not addressing facts similar to

those here, has nonetheless applied the "proximate result of' theory to the felony-

murder rule in Ohio. For instance in State v. Adams, 11th Dist. No. 2000-T-0149,

2004-Ohio-3510, the court held that the evidence was sufficient to support a finding

that the defendant caused the victim's death as a "proximate result of" his

commission of the offense of rape as required to establish felony murder. In that

case, the evidence demonstrated that the defendant beat, strangled, and raped the

victim and then left her unconscious in a car. The car subsequently caught on fire.

The victim's immediate cause of death was carbon monoxide intoxication. On

appeal, the defendant argued that even if he beat, strangled, and raped the victim

and left her in the car, he could not have foreseen that the vehicle would

unexplainably burst into flames.

{1116} The Eleventh District discussed "proximate result" as used in the

felony-murder statute:

{1117} "'"***[P]roximate result" bears a resemblance to the concept of

"proximate cause" in that (a) defendant will be held responsible for those foreseeable

consequences which are known to be, or should be known to be, within the scope of

the risk created by his conduct. (* * *) Here, that means that death reasonably could

-23-

be anticipated by an ordinarily prudent person as likely to result under these or

similar circumstances. (* **)." (Citations omitted.)' State v. Gibson (June 27, 1997),

11th Dist. No. 95-P-0125, 1997 Ohio App. LEXIS 2898, at 12-13, quoting State v.

Losey (1985), 23 Ohio App.3d 93, 95, 491 N.E.2d 379." Id. at ¶65.

{1118} The court then reasoned that carbon monoxide intoxication, which was

the immediate.cause of death, was a proximate result of the victim being left alone,

incapacitated, and without medical attention. Id. at 169. The court concluded that

"an ordinarily prudent person could anticipate that death was a foreseeable

consequence." Id.

{1119} And the Tenth District, in applying the "proximate result of' test, has

stated:

{1120} "In order for a criminal defendant's conduct to be the proximate cause

of a fatal result in a felony murder case, the court must first determine whether the

killings would not have occurred 'but for' the defendant's conduct. The court must

then determine whether the result varied greatly from the intended outcome or

foreseeable result of the underlying crime, that is, 'that the result achieved was not

so extraordinary or surprising that it would be simply unfair to hold the defendant

criminally responsible for something so unforeseeable.' State v. Dixon, Montgomery

App. No. 18582, 2002-Ohio-541, citing LaFave & Scoft, Criminal Law (1972), Section

35, 246. Foreseeability should be assessed from the viewpoint of what the defendant

knew or should have known in light of ordinary experience. State v. Lovelace (1999),

137 Ohio App.3d 206, 216." State v. Franklin, 10th Dist. No. 06AP-1154, 2008-Ohio-

462, at ¶25.

{¶121} We too will apply the "proximate result of' test in determining whether

appellant's conviction for felony murder was proper.

{1122} In this case, had appellant and his accomplices not attempted to rob

Atway's by holding up the owners at gunpoint, Farmer would not have been killed.

Thus, but for the robbery, Farmer would still be alive. It should have been

reasonably foreseeable to appellant and his cohorts that if they perpetrated an

-24-

armed robbery using multiple firearms to hold up the store owners, the owners were

likely to attempt to defend themselves and their store, also with the use of firearms.

It likewise should have been foreseeable that someone, either one of the robbers or

one of the store owners, would be shot and killed in such a robbery. Thus, Farmer

was murdered as a proximate result of the robbery of Atway's Market.

{1123} Finally, appellant contends that he cannot be complicit in Farmer's

death because there is no principal offender. However, the complicity statute

specifically states that it is no defense to a complicity charge that nobody with whom

the accused was in complicity has been convicted as a principal offender. R.C.

2923.02(B).

{1124} Accordingly, appellant's fourth assignment of error is without merit.

{1125} For the reasons stated above, the trial court's judgment is hereby

affirmed.

Vukovich, J., concurs.

Waite, J., concurs.

APPROVED:

^ - aGene b`onofrio, Ju

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