Opinion
No. 106988
04-11-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. JAMES COPELAND DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT David L. Doughten 4403 St. Clair Avenue Cleveland, Ohio 44103 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Maxwell Martin Eben McNair Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-617365-B BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J. ATTORNEY FOR APPELLANT David L. Doughten
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Maxwell Martin
Eben McNair
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, James Copeland, appeals his convictions. He raises four assignments of error:
1. The trial court erred by providing the jury a flight instruction which was unsupported by the record.
2. The trial court erred by providing the jury an instruction that the jury could consider whether Copeland was complicit in the offenses charged.
3. The trial court erred by failing to find the convicted offenses to be allied offenses pursuant to R.C. 2941.25.
4. The convictions are against the weight of the evidence.
{¶2} Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
{¶3} On May 17, 2017, the Cuyahoga County Grand Jury indicted Copeland and his codefendant, Kenneth Sims, on two counts of murder in violation of R.C. 2903.02(A) and (B); two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (2); one count of discharging a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3); and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2). The murder and felonious assault charges carried one- and three-year firearm, notice of prior conviction, and repeat violent offender specifications. Additionally, the having weapons while under disability count carried one- and three-year firearm specifications.
{¶4} Copeland pleaded not guilty to the charges and waived his right to a jury trial for the having weapons while under disability charge, as well as the repeat violent offender and notice of prior conviction specifications attached to the murder and felonious assault charges. The case proceeded to trial, during which the state presented testimony from 20 witnesses and Copeland presented testimony from one witness.
{¶5} According to testimony presented at trial, Copeland, Erica Moore, and another male went to the home of Neyda Barnes, William Earl's mother, in the early afternoon on May 5, 2017, looking for Earl. Earl had earlier agreed to buy a car at an auction for Moore in exchange for money, and Moore expected the car to be ready on May 5. Earl was not at Barnes's house when they arrived, and according to Barnes, Copeland became upset and began acting aggressively toward her. Barnes testified that she went back and forth with Copeland until she saw "the gun on the side of him[,]" and she immediately "shut up * * * [and] got really nervous" and that Copeland told her that she "could be got just like anybody else could be got." Barnes explained that she took that as meaning that "[h]e could kill [her] just like he could kill anybody else[.]" Barnes stated that the conversation ended after Moore calmed Copeland down and that Copeland, Moore, and the other gentleman left in the car, driving in reverse down the street so that she did not "see the license plate."
{¶6} A short time later, Earl arrived at his mother's house with his fiancée and mother of his three children, Maleika Gooden. After Earl found out what happened, he left with Gooden, Tyrone Washington, and Jesse Green and went to Moore's house. Gooden testified that she had a 9 mm firearm in her purse that day.
{¶7} When they arrived at Moore's house, Earl went up to the front porch and asked Moore about the men who accompanied her earlier. During that conversation, Kenneth Sims, Moore's cousin, exited the house, and Earl asked if Sims was one of the guys that she took with her, but Sims said he was not. Gooden said that as Earl spoke to Moore, Sims pulled her aside and "lifted up his shirt and showed [her] that he had a weapon" and told her that Moore felt as if Earl and Gooden had "finessed her out of $1,500." Gooden then got into a "heated argument" with Moore about the car deal.
{¶8} Eventually, Earl told Gooden, Washington, and Green they were leaving, and they all got back in the car. As Earl walked toward the driver's seat, he was still arguing with Moore's other cousins, who were on the porch of the house next door. A number of witnesses testified that during this time, they saw Copeland and another male walking down the street toward Earl. Witnesses stated that they heard Copeland say something to Earl along the lines of "either * * * 'I'm here or I'm him'" or "What's up now?"
{¶9} Within moments, gunfire started. Both Gooden and Kenneth Sims testified that they saw Copeland and the other male shooting at Earl. While witnesses also testified that they saw Earl shooting back, Gooden testified that she never saw Earl with the gun and did not see him shoot or point a gun that day. She also said that the 9 mm firearm that the police recovered was hers and that she typically kept it in her purse. She said that the 9 mm firearm ended up on the ground underneath the car because she "fumbl[ed]" it after hearing the first shots. Sims also admitted that he had a gun — a "380" — on him at that time and that his gun "went off" but that he was not shooting at anybody. He explained that his gun went off because he "hit the ground" after the shots started with his gun in hand.
{¶10} After the gunfire stopped, Copeland, the other male with Copeland, and Sims "all took off running" together through a neighboring backyard. Sims stated that he ran because he "was on probation at the time" and was not supposed to have a gun. He said that while running from the scene, he asked Copeland what happened and that Copeland responded, "It was your cousin['s] fault." He said after a couple minutes of running, he split from Copeland and the other guy who continued to run in the same direction together.
{¶11} Police arrived soon after and interviewed a number of witnesses. Gooden identified Copeland as "one of the guys who walked up to Baldwin [Avenue] before the shots were fired." She stated that while she did not write that Copeland was one of the shooters on the photo array, she was "in distress" and that she did see Copeland shoot. She also testified that she identified Sims's nephew, Jamir Brown, as being present during the shooting in a photo array, on which she wrote "[s]een the hand and arm of the guy with the blue hoodie and heard shots and fire." During trial, however, Gooden testified that she did not recall seeing Brown fire a weapon.
During cross-examination, Copeland's trial counsel asked Gooden about statements she gave during her interview with police and played the interview in court, marked as defendant's Exhibit A. Copeland's counsel, however, did not submit Exhibit A, or any other exhibits for that matter, at the close of trial and that exhibit is not before us on appeal.
{¶12} Moore said she saw Earl shooting a gun, but that she did not see Copeland or Sims with a gun. She also said she did not see Gooden, Brown, or Washington with a gun. She explained that while Earl was "not the only person that shot * * * [he was] the only one that I saw with a gun."
{¶13} During a photo lineup, Tyrone Washington identified Copeland and wrote that he "remember[ed] seeing him on Knowles [Avenue]."
{¶14} Sims turned himself into Cleveland police a few days later, but during his initial interviews, he said that he was not truthful and lied about the incident because he was "scared" and on probation. Sims explained that he told detectives that Copeland was one of the shooters, but that officers failed to include that information in their report. Sims identified Copeland as one of the individuals shooting and said he was wearing "a blue jacket and some dark pants." He said he did not know the second individual with Sims, but had seen that individual with Copeland before. Sims also denied that he told a corrections officer at the jail, Brandon Gordon Wheat, that he, not Copeland, shot Earl while he was being detained.
{¶15} Detective Joseph Marche testified that police "knew that there were at least two to three other firearms [other than the one police recovered near Earl's body] * * * due to the fact that there [were] two different shell casings on the scene." He explained that there were "shell casings from a 380 handgun and a 9 millimeter so that's what brought [police] to the conclusion that there was possibly two other firearms that were involved."
{¶16} Police arrested Copeland a few days later and collected the blue Nautica jacket that he was wearing.
{¶17} Curtiss Jones, a supervisor for the Cuyahoga County Medical Examiner's Office's trace evidence unit, testified that he performed a gunshot residue test on a blue Nautica jacket that Copeland was wearing the day police arrested him. He said that he collected residue from the sleeves and cuffs of the jacket and that it came back positive. Jones testified that Earl's hands came back positive for gunshot residue. He also said that there were no gunshot residue particles found from the kits collected from Jamir Brown and Theodore Jackson, Sims's stepfather. He said the kit taken from Gooden came back positive for gunshot residue. He said he did not receive a kit for Tyrone Washington.
{¶18} On cross-examination, Jones agreed that he was not able to establish when gunshot residue particles came to exist on a surface and that finding gunshot residue does not necessarily mean that an individual has recently fired a gun. He also agreed that one could test positive for gunshot residue simply by being in close proximity to another individual firing a gun.
{¶19} Erica Armstrong, a deputy medical examiner forensic pathologist for the Cuyahoga County Medical Examiner's Office, performed Earl's autopsy. She said that Earl suffered three gunshot wounds to his left chest, left abdomen, and right foot and that the manner of death was homicide and that Earl died as a result of the gunshots.
{¶20} The state then rested its case, and Copeland moved for an acquittal under Crim.R. 29, which the trial court denied.
{¶21} Copeland then called his sole witness, Brandon Gordon Wheat, who was a Cleveland corrections officer in May 2017. Wheat testified that he knew Kenneth Sims prior to his incarceration because they went to the same grade school. Wheat testified that while Sims was incarcerated, Sims said, "I shot him" three to four times. Wheat believed that Sims was referring to Earl.
{¶22} Copeland then rested and renewed his Crim.R. 29 motion, which the trial court again denied.
{¶23} The jury found Copeland not guilty of murder under R.C. 2903.02(A) and (B) and felonious assault under R.C. 2903.11(A)(1). The jury found Copeland guilty, however, of felonious assault in violation of R.C. 2903.11(A)(2) and the attached one-year firearm specification, but not guilty of the three-year firearm specification. The trial court found Copeland guilty of the repeat violent offender and notice of prior conviction specifications attached to that felonious assault count. The jury also found Copeland guilty of discharging a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3). The trial court found Copeland guilty of having weapons while under disability in violation of R.C. 2923.13(A)(3) and the attached one-year firearm specification, but not guilty of the three-year firearm specification.
{¶24} At sentencing, the trial court found that Copeland's convictions for felonious assault and having weapons while under disability did not merge. After hearing arguments from both sides, the trial court also found that Copeland's convictions for felonious assault and discharge of a firearm on or near prohibited premises did not merge either.
{¶25} The trial court sentenced Copeland to five years for felonious assault and one year for the firearm specification; eight years for discharging a firearm on or near prohibited premises; and three years for having weapons while under disability and one year for the firearm specification. The court ordered that all of those terms run consecutively to one another, giving Copeland an aggregate prison term of 18 years. The trial court also advised Copeland that he was subject to five years of mandatory postrelease control for his conviction for discharging a firearm on or near prohibited premises, three years of mandatory postrelease control for his felonious assault conviction, and three years of discretionary postrelease control for his conviction for having weapons while under disability.
{¶26} It is from this judgment that Copeland now appeals.
II. Law and Analysis
A. Jury Instructions
{¶27} In his first two assignments of error, Copeland argues that the trial court erred in providing a flight instruction and a complicity instruction to the jury. When instructing the jury, a trial court is required to provide "a plain, distinct, and unambiguous statement of the law applicable to the evidence." State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 73, citing Marshall v. Gibson, 19 Ohio St.3d 10, 482 N.E.2d 583 (1985). "A jury instruction is proper where '(1) the instruction is relevant to the facts of the case; (2) the instruction gives a correct statement of the relevant law; and (3) the instruction is not covered in the general charge to the jury.'" State v. Walker, 8th Dist. Cuyahoga No. 97648, 2012-Ohio-4274, ¶ 53, quoting State v. Kovacic, 2012-Ohio-219, 969 N.E.2d 322 (11th Dist.). It is well established that the trial court should not instruct the jury where there is no proof to support the instruction. Riley v. Cincinnati, 46 Ohio St.2d 287, 297, 348 N.E.2d 135 (1976).
{¶28} Trial courts have broad discretion in determining whether the evidence adduced at trial was sufficient to warrant a jury instruction. State v. Mitts, 81 Ohio St.3d 223, 228, 690 N.E.2d 522 (1998). "'Further, generally jury instructions are viewed in their entirety to determine if they contain prejudicial error'" and "'even if a jury instruction was inappropriate, if it did not materially affect the outcome of the case, a reversal of the judgment is not justified.'" State v. Campbell, 11th Dist. Ashtabula No. 2014-A-0005, 2014-Ohio-4305, ¶ 28, quoting State v. Shaffer, 11th Dist. Trumbull No. 2011-T-0036, 2003-Ohio-6701.
1. Flight Instruction
{¶29} In his first assignment of error, Copeland argues that the trial court erred when it gave the jury a flight instruction over his objection.
{¶30} The trial court gave the following flight instruction to the jury:
Consciousness of guilt. Flight of the defendant. Testimony has been admitted indicating that the defendant fled the scene. You are instructed that the fact that the defendant fled the scene does not raise a presumption of guilt but it may tend to indicate the defendant's consciousness of guilt. If you find that the facts do not support that the defendant fled the scene 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 that the facts support that the defendant engaged in such conduct and if you decide that 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. Again, you alone will determine what weight if any to give this testimony.
{¶31} "'The decision to issue a flight instruction rests within the trial court's sound exercise of discretion and will not be reversed absent an abuse of discretion.'" State v. Mason, 11th Dist. Lake No. 2014-L-058, 2015-Ohio-2895, ¶ 20, quoting State v. Davilla, 9th Dist. Lorain No. 03CA008413, 2004-Ohio-4448. "It is not error for a trial court to give a flight instruction when there is * * * evidence" supporting such a charge. State v. Willis, 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, ¶ 44, citing State v. Spraggins, 8th Dist. Cuyahoga No. 99004, 2013-Ohio-2537.
{¶32} In Willis, the defendant argued that the trial court's flight instruction to the jury was improper. We disagreed, stating:
The state offered evidence that Willis was the 911 caller that fled the scene, despite the operator instructing him to return to the victim. The state further offered evidence that Willis was hiding in a closet with two dressers in front of it and that he had to be "tased" in order for the marshal to ultimately apprehend him. This evidence, therefore, warranted the flight instruction.Id. at ¶ 45.
{¶33} We reached a similar holding in State v. Torres, 8th Dist. Cuyahoga No. 99596, 2013-Ohio-5030, where we stated,
We find no abuse of discretion on the part of the trial court. Flight from justice "means some escape or affirmative attempt to avoid apprehension." State v. Spraggins, 8th Dist. Cuyahoga No. 99004, 2013-Ohio-2537, ¶ 24, citing State v. Benjamin, 8th Dist. Cuyahoga No. 80654, 2003-Ohio-281. It is not error for a trial court to give a flight instruction when there is such evidence. Id. As Torres points out, evidence was given at trial that he, along with everyone else, fled the scene. But the trial court informed the jury that it could determine from the evidence if the defendant fled the scene for some other purpose. Thus, the jury could have decided if Torres fled because he was trying to avoid the police or if he fled for safety reasons to avoid being shot. Accordingly, we find no error.Id. at ¶ 56.
{¶34} Like Willis and Torres, the state presented evidence that Copeland as well as a number of other individuals present during the shooting fled the scene. Specifically, Sims testified that after the shooting, he, Copeland, and the unidentified male who arrived with Copeland, "all took off running" together through a neighboring backyard and that Copeland and the other male eventually split from Sims and ran together in another direction.
{¶35} Put simply, like Torres, the trial court's flight instructions allowed the jury to determine if Copeland fled the scene to avoid police or for his own safety to avoid being shot. Therefore, we find that the trial court did not abuse its discretion, and we overrule Copeland's first assignment of error.
2. Complicity Instruction
{¶36} Turning to Copeland's second assignment of error, the trial court gave the following complicity instruction to the jury at the state's request and over Copeland's objection:
The State of Ohio has presented a theory that the defendant acted in complicity with the principal offender in the commission of murder, felonious assault, and discharge of a firearm in a — discharging a firearm on or near a prohibited premises.
A person who is complicit with another in the commission of a criminal offense is regarded as guilty as if he personally performed every act constituting the offense. This is true even if he did not personally perform every act constituting the offense or was not physically present at the time the offense was committed.
Before you can find the defendant guilty of complicity or being complicit in the commission of murder, felonious assault, and discharging a firearm on or near prohibited premises you must find beyond a reasonable doubt that on or about the 5th day of May 2017 in Cuyahoga County, Ohio that the defendant aided or abetted another in the commission of murder, felonious assault, or discharge of a firearm on or near prohibited premises.
Aided or abetted. Before you can find the defendant guilty of complicity by aiding and abetting you must find beyond a reasonable doubt that the defendant's — that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal offender in the commission of the offense and that the defendant shared the criminal intent of the principal offender.
Such intent may be inferred from the circumstances surrounding the offense including but not limited to the presence, companionship, and conduct before and after the offense was committed. The mere presence of the defendant at the scene of the offense is not sufficient to prove in and of itself that the defendant was an aider and abettor.
{¶37} Copeland argues that there was insufficient evidence to give the complicity instruction. Specifically, he argues that the instruction was improper because there "was little or no evidence that Copeland acted with agreement with another actor" and "no evidence of prior contact between Copeland and any alleged shooter" or "discussions at the scene regarding a concerted effort of those present to shoot [Earl]." He maintains that the "mere fact that he may have been standing next to or near a shooter does not establish [an] agreement to commit an illegal act."
{¶38} Copeland also argues he suffered prejudice as a result of the instruction because "[i]t permitted jurors to fill in missing substantive evidence of Copeland's intent or of that he was the actual shooter" and "[j]urors who may not have believed that sufficient proof existed that Copeland fired a weapon may have been persuaded to reach a guilty verdict anyway by misunderstanding a confusing instruction."
{¶39} In response, the state argues that the instruction was appropriate because "[t]here is no requirement that an aider or abettor enter into an agreement with other participants; all that is required is that they 'supported, assisted, encouraged, cooperated with advised, or incited' another." It also argues that Copeland "was not 'merely present' at the scene, but was an active, shooting participant[.]" The state cites to State v. Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, and State v. Hoston, 8th Dist. Cuyahoga No. 102730, 2015-Ohio-5422, in support.
{¶40} Importantly, in his reply brief, Copeland states that the state "is correct in arguing that there is no requirement that a specific agreement be entered into by defendants before a complicity instruction is provided" and agrees with the trial court's wording in the complicity instruction. He argues, however, that there was insufficient evidence that Copeland "supported, assisted, encouraged, cooperated with advised, or incited" the shooter; he points to the fact that since the evidence showed that Earl fired his gun first, "the shooter did not need nor depend on any encouragement from Copeland before firing back."
{¶41} "A person aids or abets another when he supports, assists, encourages, cooperates with, advises, or incites the principal in the commission of the crime and shares the criminal intent of the principal." State v. Langford, 8th Dist. Cuyahoga No. 83301, 2004-Ohio-3733, ¶ 20, citing State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001). "A defendant may 'aid' or 'abet' another in the commission of an offense by his words, gestures, deeds, or actions." Capp at ¶ 25.
{¶42} Further, "[a]iding and abetting may be shown by direct or circumstantial evidence[,]" and the intent to aid or abet "may be inferred from the circumstances surrounding the crime." Id.; State v. Johnson, 93 Ohio St.3d 240, 246, 754 N.E.2d 796 (2001). Likewise, "participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed." Id. at 245, citing State v. Pruett, 28 Ohio App.2d 29, 273 N.E.2d 884 (4th Dist.1971).
{¶43} However, "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. Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). "Mere association with the principal offender * * * is [also] insufficient to establish complicity." Hoston, 8th Dist. Cuyahoga No. 102730, 2015-Ohio-5422, at ¶ 13, citing State v. Doumbas, 8th Dist. Cuyahoga No. 100777, 2015-Ohio-3026.
{¶44} In Hoston, we examined whether there was sufficient evidence supporting the defendant's conviction for complicity by aiding and abetting. We stated,
Although no direct evidence was introduced to establish that Hoston fired his weapon during the exchange of gunfire, the state introduced circumstantial evidence from which one could conclude that he participated in the exchange of gunfire. Furthermore, even if Hoston did not fire his weapon, the state introduced sufficient evidence to establish that he aided and abetted Phillips and Lacey in their gun battle with the unknown men in the vehicle behind Williams. Hoston's conduct exceeded merely being present at the scene of the crime. The testimony of Williams and Davis placed Phillips, Lacey and Hoston with guns drawn near the hut in front of the woman with Hoston directly in front of Williams. According to Williams, Phillips fired first and "then everybody just
got to firing" while Williams dived to the ground and was wounded in the process.Id. at ¶ 15. As a result, we concluded that the state presented sufficient evidence to support the defendant's conviction. Id. at ¶ 16.
{¶45} In Capp, we also examined the sufficiency of the evidence underlying the defendant's conviction for complicity by aiding and abetting. We found that
Capp's participation in the crimes at issue and shared criminal intent can be reasonably inferred from his conduct and statements both before and after the shooting. This is not a case in which a defendant was merely present at the scene of an incident involving others. The evidence demonstrates that Capp assumed an active role in the commission of the offenses and in causing the shooting to occur. The state presented ample evidence establishing that it was Capp's relationship with Hayne and his anger or jealously following Hayne's reconciliation with Marshall that led to the shooting. It was Capp who had the connection to Hayne and Marshall — not Winters or Jones. The record establishes that on the day of the shooting, Capp showed up at Hayne's house twice before the shooting, looking for Hayne and threatening to "beat up" Marshall. Hayne testified that the second time Capp showed up at her home, he and Winters asked Hayne where Marshall was and when he was going to return because they had "something for him." Marshall testified that when Hayne called him during his outpatient treatment, he heard Capp screaming and yelling in the background, "F * * * you, b * * * *. Tell him to come on. I'm about to f * * * you all up. Today's the day."Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, at ¶ 31. Therefore, we found that the state presented sufficient evidence that the defendant acted in complicity with the principal offenders. Id. at ¶ 34.
{¶46} We find that those cases are instructive. Similar to Hoston and Capp, evidence — specifically, testimony from Gooden and Sims — establishes that Copeland participated in the gunfire and was not "merely present at the scene of an incident involving others." Instead, like the defendants in those cases, Copeland participated in the gun battle and instigated the entire dispute by first threatening Barnes with a gun and then showing up to Moore's home. Further, a number of other witnesses testified that, moments before the shooting began, they saw Copeland walking down the street toward Earl with another individual and that Copeland told Earl that he was the individual who went to Earl's mother's house. That evidence undermines Copeland's argument that he was "merely walking down the street."
While Hoston and Capp concerned the sufficiency of evidence underlying a conviction for complicity and, here, Copeland simply challenges the sufficiency of the evidence to give a complicity instruction, we find that distinction supports our conclusion that there was sufficient evidence to warrant a complicity instruction. --------
{¶47} As to who Copeland was complicit with, we do agree with Copeland that there was not sufficient evidence that he aided or abetted Sims; however, there was sufficient evidence that he aided or abetted the unidentified individual who was with him when he walked down Baldwin Avenue. While Copeland is correct that there was not "evidence of discussions at the scene regarding a concerted effort of those present to shoot William Earl[,]" Copeland and the unidentified male arrived together with firearms and both shot at Earl after approaching him and informing Earl that they were the ones who confronted Earl's mother earlier that day. Sims testified that he saw Copeland "and the guy that was walking with him" shooting at Earl and that Earl was shooting back at them. He said he saw both Copeland and the male both shoot "a few" times and that after the shooting, both Copeland and the male ran together in the same direction. Similar to Hoston and Capp, the evidence shows that Copeland "supported [or] assisted" the unidentified male by participating in the gun battle against Earl. The lack of an express agreement between Copeland and the unidentified male is not determinative of complicity; instead, their concerted actions against Earl establish their support and assistance of one another. Further, the fact that the unidentified male walking with Copeland was not charged does not prevent Copeland from being charged or convicted of complicity with that individual. See State v. Lamarr, 3d Dist. Logan No. 8-04-39, 2005-Ohio-6030, ¶ 8 ("[I]n order to convict a defendant as an accomplice, the State need not prove who the principal offender was but only that there was a principal." (Emphasis sic.)).
{¶48} Given that evidence, we find that there was sufficient evidence to show that Copeland "support[ed], assist[ed], encourage[d], cooperate[d] with, advise[d], or incite[d]" a principal offender and that a jury instruction on complicity was applicable to the facts of this case. Therefore, we find that the trial court did not abuse its discretion by providing a complicity instruction to the jury and overrule Copeland's second assignment of error.
C. Manifest Weight of the Evidence
{¶49} Because Copeland's fourth assignment of error, which argues that his convictions were against the manifest weight of the evidence, could potentially render his third assignment of error, which argues that two of his convictions should have merged for purposes of sentencing, moot, we will discuss his fourth assignment of error first.
{¶50} In his fourth assignment of error, Copeland argues that his convictions for felonious assault, discharge of firearm on or near prohibited premises, and having weapons while under disability are against the manifest weight of the evidence. Specifically, he argues that "[t]he jury lost its way in finding [he] possessed and fired a firearm."
{¶51} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶52} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as a "thirteenth juror." Id. In doing so, it must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses 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.'" Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "'exceptional case in which the evidence weighs heavily against the conviction.'" Id., quoting Martin.
{¶53} Copeland first argues that the testimony from Barnes, Gooden, and Sims was "bias[ed] and inaccura[te]." He cites to the fact that the testimony (1) contradicted testimony from law enforcement, (2) was inconsistent or "improbable," and (3) referring to Sims's testimony, "flat-out the result of a plea incentive." Copeland also points to the fact that none of the remaining witnesses, who he refers to as "neutral bystanders," saw Copeland with or shooting a gun.
{¶54} Questions of weight and credibility are primarily for the trier of fact to determine. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). This is because "'[t]he demeanor of witnesses, the manner of their responses, and many other factors observable by a jury * * * simply are not available to an appellate court on review.'" State v. Bailey, 8th Dist. Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18, 1990 Ohio App. LEXIS 1204 (Mar. 4, 1990).
{¶55} Here, Sims and Gooden both testified that they saw Copeland shooting. Additionally, a number of witnesses saw Copeland walking down the street toward Earl and heard Copeland tell Earl that he was the person who went to Earl's mother's house that afternoon moments before the shooting began. While there were a number of inconsistencies and other factors affecting witness credibility — i.e., Gooden and Sims did not immediately identify Copeland as the shooter and Gooden identified someone else as the shooter; contradictions between witness testimony and statements given to the police; the fact that Sims received a plea deal in exchange for his testimony; Gooden's testimony that her gun was in the vehicle and that Earl did not have a gun when her gun was found underneath the vehicle next to Earl's body; and that Gooden, Sims, and Barnes were all "bias[ed]" compared to the "neutral bystanders" who did not see Copeland shoot a gun — the jury heard those inconsistencies and factors and ultimately convicted Copeland.
{¶56} Finally, as to the gunshot residue found on his jacket, Copeland argues that "gunshot residue is easily transferrable[,]" that he could have "fired another weapon in the interim time before he was arrested, * * * result[ing] in the depositing" of residue, and that the residue "in and of itself does not establish guilty beyond a reasonable doubt." The jury heard testimony from Curtiss Jones, who testified that the gunshot residue could have been the result of Copeland being in close proximity to another individual firing a gun or could have been the result of Copeland using a nail or stud gun. Jones also testified that the presence of gunshot residue does not necessarily mean that an individual recently fired a gun and that it could be the result of "secondary transfer." The jury also heard Copeland's counsel review all of those points during closing argument. Despite those possibilities, the jury ultimately convicted Copeland. After reviewing the evidence, we cannot say that the jury "clearly lost its way" in dismissing those possibilities, and we find that this is not the "exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶57} Accordingly, we overrule Copeland's fourth assignment of error.
D. Merger/Allied Offenses
{¶58} In his third assignment of error, Copeland argues that the trial court erred by not merging his convictions for felonious assault and discharging a firearm on or near prohibited premises, which he argues are allied offenses.
{¶59} Pursuant to R.C. 2941.25(A), "[w]here the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one." However,
[w]here the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.R.C. 2941.25(B).
{¶60} Two or more offenses are of dissimilar import within the meaning of R.C. 2941.25(B) "when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two of the syllabus.
{¶61} "At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. In Ruff, the Supreme Court held that if a defendant's conduct supports multiple offenses, the defendant can be convicted of all of the offenses if any one of the following is true: "(1) the conduct constitutes offenses of dissimilar import or significance, (2) the conduct shows the offenses were committed separately, or (3) the conduct shows the offenses were committed with separate animus or motivation." Id. at paragraph three of the syllabus, citing R.C. 2941.25(B).
{¶62} When determining whether two offenses are allied offenses of similar import, we apply a de novo standard of review. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶63} We analyzed whether a defendant's convictions of felonious assault and discharge of a firearm on or near prohibited premises constituted allied offenses in State v. Carzelle, 8th Dist. Cuyahoga No. 105425, 2018-Ohio-92. In that case, we said that "[w]hen a 'defendant's conduct put[s] more than one individual at risk, that conduct could support multiple convictions because the offenses were of dissimilar import.'" Id. at ¶ 9, quoting Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. We found that, based on that principle, the defendant's convictions did not merge because "[t]he resulting harm of Carzelle's felonious assault conviction was the gunshot to [the victim's] face" and "[t]he resulting harm [of the defendant discharging a firearm on or near prohibited premises] was to the public." Id. at ¶ 10.
{¶64} In response to Carzelle, Copeland argues that "the allied offense issue is not an 'one-size-fits-all' analysis" and the fact that "the factual determination might negate an allied finding in a particular factual scenario, * * * does not mean that two offenses can never be allied." He also argues that when looking at his alleged intent, it only shows that he shot back at Earl and that "[t]here was no evidence of a pause, a movement, and more shooting at a different target, which could fully support a finding of separate states-of-mind."
{¶65} First, Copeland's intent is only one of the factors that courts analyze when determining whether offenses are allied. In addition to intent, courts also look to whether "the conduct constitutes offenses of dissimilar import or significance or the conduct shows the offenses were committed separately." Ruff at paragraph three of the syllabus, citing R.C. 2941.25(B).
{¶66} Second, while Copeland is correct that the allied-offenses analysis is fact dependent and should be decided on a case-by-case basis, this case is factually similar to Carzelle in that Copeland's convictions for felonious assault and discharging a firearm on or near prohibited premises resulted in different harm and victims: the victim of Copeland's conviction for felonious assault was Earl, and the victim of his conviction for discharge of a firearm on or near prohibited premises was the public. We find that those convictions, therefore, constitute offenses of dissimilar import because each offense caused separate identifiable harm. See Ruff at ¶ 21 ("[O]ffenses are not allied offenses of similar import if they are not alike in their significance and their resulting harm.").
{¶67} Further, Copeland does not explain how a different factual scenario would cause the offenses to be allied; instead, he argues that "where it is unequivocal that the intent was to shoot a gun back at the victim who started the shooting, the felonious [assault] could not have been committed without also committing a Discharge offense." We fail to see how that point undermines or overcomes the fact that the two charges in this case resulted in harm to separate victims.
{¶68} Therefore, we agree with the trial court that Copeland's convictions for felonious assault and discharge of a firearm on or near prohibited premises should not merge. Accordingly, we overrule Copeland's third assignment of error.
{¶69} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MARY J. BOYLE, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR