State v. Crosby
| Citation | 2018 Ohio 3793 |
| Decision Date | 20 September 2018 |
| Docket Number | No. 106504,106504 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. GERELLE CROSBY DEFENDANT-APPELLANT |
| Court | United States Court of Appeals (Ohio) |
ATTORNEY FOR APPELLANT
55 Public Square, Suite 2100
Cleveland, Ohio 44113
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Brian Radigan
Hannah Smith
Assistant Prosecuting Attorneys
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Gerelle Crosby appeals his conviction for aggravated murder under R.C. 2903.01(B) and the resulting sentence of life in prison plus three years on a firearm specification. We affirm.
{¶2} Crosby called his cousin requesting the victim's contact information. Crosby intended to buy drugs from the victim and called to set up a deal. The victim brought a friend along; both of them were carrying firearms. The victim and his friend were driving around the area of East 93rd Street and Quebec Avenue in Cleveland. During that time, Crosby and a second person were texting or calling the victim asking for his whereabouts. According to cell phone records, Crosby and the other person were in the same area while these calls or texts were occurring.
{¶3} The victim and his friend eventually met an unknown person at East 93rd Street and Quebec Avenue, who got into the backseat of the car. The victim showed the person, circumstantially identified as Crosby, the drugs. Crosby called another person, the second number that had been contacting the victim earlier, and Crosby told the victim that the buyer did not want to handle the transaction in the vehicle. The victim followed Crosby from the car and into an alley. Immediately thereafter, the victim's friend heard gunfire and saw the victim trying to run back to the car. Surveillance video from that area shows the victim running from the shooter, who is chasing and shooting at the victim. The victim's friend returned fire, causing the shooter to flee. The victim was mortally wounded.
{¶4} After the murder, Crosby contacted his cousin and told him to keep Crosby's name from the police and that the cousin should not be concerned with anything since he was not at the scene of the murder. Crosby also told family members and his girlfriend that he was present at the murder, but did not shoot the victim. Police officers arrested Crosby, who disclaimed any affiliation with his cousin or the victim, knowledge of the second phone number or the person who had been contacting the victim, and being present at the scene of the murder.
{¶5} The jury found Crosby guilty of aggravated murder under R.C. 2903.01(B) and a three-year firearm specification, amongst several other counts that merged into the aggravated murder for the purposes of the final conviction. The trial court sentenced Crosby to life in prison without the possibility of parole, plus a three-year consecutive prison term on the firearm specification. From this conviction, Crosby appeals, advancing six assignments of error, some of which are interrelated.
{¶6} In the first, third, and fourth assignments of error, Crosby claims that there is no evidence demonstrating his complicity in the aggravated murder. We note that Crosby makes the argument in the first assignment of error that because there is no evidence of complicity, the trial court erred by so instructing the jury and, in addition, in the third assignment of error that because there is no evidence demonstrating accomplice liability, the conviction for aggravated murder is against the weight of the evidence. Although Crosby presented the third assignment of error in terms of the weight of the evidence, he expressly indicated that his arguments only addressed the sufficiency of the evidence or whether there was any evidence in support of the complicity theory advanced by the state. A claim that a jury verdict is against the weight of the evidence involves a separate and distinct test that is much broader than the test for sufficiency. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In light of the fact that Crosby has presented no separate arguments in support of the claim that the conviction is against the weight of the evidence, we will solely address the sufficiency of the evidence as presented. App.R. 16(A)(7); State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 2.
{¶7} Further, as it relates to the complicity instruction, if there is no evidence supporting the state's claim that Crosby was complicit in the aggravated murder, then whether the jury was properly instructed is irrelevant: the conviction must be reversed based on the insufficiency of the evidence. On the other hand, if there is sufficient evidence of his complicity in the commission of the aggravated murder, then the jury instruction was necessarily warranted. In light of the fact that all three of these arguments are based on Crosby's belief that there is insufficient evidence of his being complicit in the aggravated murder, we will address the three assigned errors under the sufficiency of the evidence framework.
{¶8} A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶9} Crosby was convicted of aggravated murder under R.C. 2903.01(B), which provides in pertinent part that no person shall purposely cause the death of another while committing or attempting to commit aggravated robbery or robbery. "Under R.C. 2923.03(F), '[a] charge of complicity may be stated in terms of [that] section, or in terms of the principal offense.'" State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 244. As a result, any defendant "'indicted for aggravated murder in terms of the principal offense * * * [is] on notice that evidence could be presented that he was either a principal offender, or an aider and abetter.'" Id., quoting State v. Ensman, 77 Ohio App.3d 701, 703, 603 N.E.2d 303 (11th Dist.1991). In Ohio, there is no difference between those convicted of complicity in a crime or as a principal offender. McKelton at ¶ 247, quoting State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-Ohio-6969, ¶ 70. Further, the state is not required to prove the identity of the principal offender in order to establish the offense of complicity. McKelton at ¶ 247, quoting In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus.
{¶10} On this point, Crosby contends that there is no direct evidence of his involvement in the aggravated murder of the victim. According to Crosby, the evidence demonstrated only that he facilitated the drug transaction, but he had no knowledge that the unknown principal offender would murder the victim, citing State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 32. In Shabazz, a divided panel reversed a felony murder conviction under R.C. 2903.02(B) because there was no evidence that the defendant knew that the principal offender had a firearm until the fatal shot was fired, citing Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240,188 L.Ed.2d 248 (2014). Id. at ¶ 31-32.
{¶11} Shabazz is not applicable to the particular facts of this case because the panel concluded there was no evidence that the defendant aided and abetted the principal in that particular case. Shabazz at ¶ 39-40. In this case, there is evidence that Crosby aided and abetted the unknown principal by facilitating the encounter with, and the isolation of, the victim to facilitate the attempted robbery. Shabazz is inapplicable. And Rosemond, cited as dicta in Shabazz, is not relevant to the current inquiry either. Rosemond specifically addressed the validity of a jury instruction with respect to violations of 18 U.S.C. 924(c). Rosemond is not a sweeping decision setting forth a new rule of constitutional law that can be applied to crimes under state law. Vazquez-Castro v. United States, 53 F.Supp.3d 514, 521 (D.P.R.2014); Cordero v. United States, 2d Cir. No. 15-530, 2015 U.S. App. LEXIS 23112, 2 (Mar. 19, 2015); Hughes v. Epps, 561 Fed.Appx. 350, 354 (5th Cir.2014), fn. 4 (Rosemond does not apply to state-law robbery crime); see also Hicks v. State, 295 Ga. 268, 273, 759 S.E.2d 509 (2014), fn. 3 (same); People v. Jordan, Mich.App. No. 326735, 2016 Mich. App. LEXIS 1833, 3 (Oct. 11, 2016) (); State v. Ward, 473 S.W.3d 686, 693 (Mo.App.2015) (); State v. Dull, 372 Wis.2d 458, 2016 WI App. 88, 888 N.W.2d 247 (same).
{¶12} In Ohio, an offender's complicity to commit a crime may be inferred from the circumstances surrounding the crime, and that may include the offender's presence, companionship, and conduct before and after the crime is committed. State v. Moore, 7th Dist. Mahoning No. 02 CA 152, 2004-Ohio-2320, ¶ 31, citing State v. Johnson, 93 Ohio St.3d 240, 245, 2001-Ohio-1336, 754 N.E.2d 796. Further, circumstantial and direct evidence possess the same probative value. Id., citing Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus. "A person is guilty of...
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