State v. Johnson, 00-1219.

• Decision Date: 26 September 2001
• Docket Number: No. 00-1219.,00-1219.
• Parties: THE STATE OF OHIO, APPELLANT, v. JOHNSON, APPELLEE.
• Court: Ohio Supreme Court

93 Ohio St.3d 240

754 NE 2d 796

THE STATE OF OHIO, APPELLANT, v. JOHNSON, APPELLEE.

No. 00-1219.

Supreme Court of Ohio.

Submitted May 16, 2001.

Decided September 26, 2001.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Janice T. O'Halloran, Assistant Prosecuting Attorney, for appellant.

Sherman J. Miles, for appellee.

LUNDBERG STRATTON, J.

On June 10, 1996, members of the street gang known as the Bloods opened fire on members of another gang, the Crips. Edward McGaha, a member of the Crips, was wounded. Defendant-appellee, Leslie Johnson, also a Crips member, was present during the attack. One of the primary shooters in the attack was Richard Miles ("Boom"), a Bloods gang member and crack dealer.

Later that day, McGaha returned home from the hospital and was sitting on the front porch of his mother's home with some other Crips gang members and associates, including defendant, when a carload of Bloods pulled up and opened fire a second time. The Crips returned fire, but no one was injured in the exchange.

After the second exchange of gunfire, defendant, McGaha, Antwan Jones, Neil Bunldey, and Denicholas Stoutmire drove over to the house of a fellow Crips member known only as Heavy. At Heavy's, the group drank beer, smoked marijuana, and talked about how McGaha almost lost his life. According to McGaha, the group talked about going to "get them," and "everybody was just down with me." Neil Bunkley was so angry about the shooting that he punched out a window afterwards. The group decided to go after Boom for his involvement in the McGaha shooting.

Some of the Crips gang members stole two cars and they borrowed a third car from a "feener," a person who uses drugs. Around 12:30 a.m., a group of gang members, including defendant, got into the three cars and left Heavy's house. McGaha and Bunkley were in the stolen black Buick, and McGaha had a sawedoff shotgun. Gary Drayton and Antwan Jones were in a Chevette, and Drayton had a .380 gun. Denicholas Stoutmire was driving the stolen Bonneville, with Damian Williams, who had a .45 automatic, in the passenger seat, and defendant and Sidney Cornwell in the backseat. According to Bunkley, defendant was in possession of a .380 gun earlier that day. The passengers of the three cars were looking for Boom. They planned to shoot him if they found him.

First, the caravan drove to the south side of town, known to be Bloods territory. After splitting up briefly, the cars later met on Edwards Street on the south side of town. The cars then drove around and stopped on South Avenue, where Cornwell and defendant got out of the Bonneville to get a lighter from Jones. Defendant and Cornwell then got back in the Bonneville and decided to go back to Heavy's.

However, rather than going back to Heavy's, the lead car, the Bonneville, pulled up at Oak Park, an apartment complex that Boom was known to frequent. The caravan pulled up side by side in front of the apartments and the occupants discussed kicking down the apartment door to go in and look for Boom. McGaha testified that they planned to kill Boom if they found him. Williams testified that he told the group that kicking in the door was a bad idea because one of them might get shot. Williams also testified that the group got together to go find and kill Boom and that Cornwell was "getting angrier and angrier." Williams testified that "common sense" told them what they needed to do. The caravan of cars pulled around to the back of the apartments. Both the Buick and the Chevette drove past the back of the apartment, but the Bonneville stopped behind the apartment. Although the lighting was dim, McGaha testified that he was able to see a female and a male on the porch.

Susan Hamlett, a resident of the apartment complex, and Donald Meadows, her date, were on the back porch at 2:20 a.m. when Hamlett's three-year-old niece, Jessica Ballew, came out on the porch, wanting a drink of water. Hamlett was on her way back into the apartment with Jessica when the three cars came up the alley behind the apartment building.

Hamlett could see four people in the Bonneville. Cornwell asked if Boom was at the apartment. When Hamlett and Meadows replied that Boom was not at the apartment, Cornwell asked again, "Where is Boom?" Hamlett replied, "He don't live here." Cornwell said, "Well, tell Boom this," and he opened fire. Samuel Lagese and Marilyn Conrad, who were inside the apartment, and Meadows were struck and wounded. Three-year-old Jessica Ballew was killed.¹

A jury convicted defendant of one count of complicity to commit aggravated murder, in violation of R.C. 2923.03(A)(2) and 2903.01(A), and three counts of complicity to commit attempted aggravated murder, in violation of R.C. 2923.03(A)(2), 2923.02(A), and 2903.01(A). In addition, each count carried a firearm specification pursuant to R.C. 2941.141 and former 2929.71(A), now R.C. 2929.14. The Court of Appeals for Mahoning County relied on State v. Sims (1983), 10 Ohio App.3d 56, 10 OBR 65, 460 N.E.2d 672, and reversed the convictions and discharged the defendant.

The cause is now before this court upon the allowance of a discretionary appeal.

The issue before the court today is whether the actions of the defendant constituted complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2). We find that they do, and for the reasons that follow, we reverse the judgment of the court of appeals and reinstate the defendant's convictions and sentence.

Defendant was convicted of complicity to commit aggravated murder, a violation of R.C. 2923.03(A)(2) and 2903.01(A), for the killing of Jessica Ballew. R.C. 2923.03 provides:

"(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

"* * *

"(2) Aid or abet another in committing the offense." R.C. 2903.01(A) provides a definition of aggravated murder:

"No person shall purposely, and with prior calculation and design, cause the death of another * * *."

With regard to the three other victims of these crimes, defendant was charged with and convicted of complicity to commit attempted aggravated murder, in violation of R.C. 2923.03(A)(2), 2903.01(A), and 2923.02(A).

R.C. 2923.02(A) provides a definition of attempt:

"No person, purposefully or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense."

Ohio's complicity statute, R.C. 2923.03, does not provide a definition of the terms "aid or abet." As a result, this court is now called upon to provide a definition. Black's Law Dictionary defines "aid and abet" as "[t]o assist or facilitate the commission of a crime, or to promote its accomplishment." Black's Law Dictionary (7 Ed.Rev.1999) 69.

This court has held that "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 (1982), 69 Ohio St.2d 267, 269, 23 O.O.3d 265, 266, 431 N.E.2d 1025, 1027. This rule is to protect innocent bystanders who have no connection to the crime other than simply being present at the time of its commission.

We find, however, on these facts, much more than "mere presence" and we find that the court of appeals misapplied this legal concept. The court of appeals relied heavily on a case that is often cited by other appellate courts and defines "aider and abettor" as "one who assists or encourages another to commit a crime, and participates in the commission thereof by some act, deed, word, or gesture." State v. Sims (1983), 10 Ohio App.3d 56, 10 OBR 65, 460 N.E.2d 672, paragraph two of the syllabus. Sims held that "[a] person cannot be convicted of aiding and abetting a principal offender in the commission of an offense in the absence of evidence that the person assisted, incited or encouraged the principal to commit the offense." Id., paragraph three of the syllabus.

Of course, Sims is not controlling legal authority. It is also distinguishable. In Sims, the defendant, who was convicted of aiding and abetting receiving stolen property and aiding and abetting possession of criminal tools, was a passenger in the back seat of a stolen car being driven by another male who was the apparent thief. The only evidence adduced indicated that Sims was "`associated' with Sanders [the principal], in that he was a passenger in the car with Sanders for about thirty seconds when he and his women companions were ordered out of the car by police." Id. at 59, 10 OBR at 69, 460 N.E.2d at 676. This case is clearly distinguishable from Sims. The prosecution in Sims obviously failed to prove that the defendant was anything more than merely present at the scene of the crime. Defendant in this case was a member of the Crips gang. Based on the record, which chronicles three separate gang-related shootings in a twenty-four-hour period, violence and revenge were a way of life for these rival gang members. Defendant went along on that fateful night as protection and support for his fellow gang members who had recently been "disrespected." He also had his own reason for revenge, as he himself had been shot at earlier that day.

Defendant was present when the Bloods shot at defendant, McGaha, and other Crips earlier in the day, wounding McGaha. Williams testified that he was driving around when he saw McGaha lying in the driveway, looking "almost dead." Williams testified that he talked with defendant at the scene and defendant told him that Boom had shot McGaha.

Defendant was present at the home of McGaha's mother later that afternoon when the Bloods shot at the Crips a second time. Defendant was present at Heavy's house when the Crips got together to discuss the prior shootings. Defenda...