State v. Larry Holdsworth

• Decision Date: 21 February 1992
• Docket Number: 92-LW-1105,90-P-2231
• Parties: STATE OF OHIO, Plaintiff-Appellee v. LARRY HOLDSWORTH, Defendant-Appellant CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. LARRY HOLDSWORTH, Defendant-Appellant

No. 90-P-2231.

92-LW-1105 (11th)

Court of Appeals of Ohio, Eleventh District, Portage County.

February 21, 1992

Criminal Appeal from Portage County Court of Common Pleas Case No. 88 CR 0166B.

ATTY KENT R. MINSHALL, JR., 21690 River Oaks Drive, Rocky River Ohio 44116 (For Defendant-Appellant).

DAVID W. NORRIS, PORTAGE COUNTY PROSECUTOR, THOMAS R. BUCHANAN ASSISTANT PROSECUTOR, 466 S. Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).

OPINION

Before HON. DONALD R. FORD, P.J., HON. JOSEPH E. MAHONEY, J., HON ROBERT A. NADER, J.

MAHONEY J.

On September 7, 1988, defendant-appellant, Larry Holdsworth, along with codefendant Ralph Shields, was indicted on one count of aggravated robbery, a violation of R.C. 2911.01(A)(1) and (B).

This alleged crime occurred six years earlier on September 7, 1982 at about 10:25 pm. when Marsha Sue Snowberger, who was a manager at Arby's Restaurant on East Main Street in Kent, Ohio, left Arby's to make a night deposit at the nearby Huntington Bank branch. Ms. Snowberger drove up to the bank and, as she stepped out of the car to make the deposit, she heard someone from behind her car yell, "Drop it bitch." She dropped the bag. A man with a crowbar picked up the bag and ran into the woods behind the bank. It was later determined that the loss was $1,090.48. Snowberger testified that the only thing she could see on the man's face was the eye area. She stated that he was approximately five feet eight inches tall, one hundred sixty pounds, white, and he was wearing a dark ball cap, a three-cornered scarf which was tied over his face, and dark clothing. Ms. Snowberger was unable to identify the assailant.

The crime remained unsolved until August 9, 1988 when Kent City Police obtained new information from Stephen F. Najeway implicating Ralph Shields and appellant in the robbery. Najeway was incarcerated for convictions of aggravated burglary and grand theft of a motor vehicle. He is serving a sentence of twenty-eight to fifty years.

Najeway testified that Ralph Shields and the appellant arrived at the apartment of Najeway's friend on Portage Path at around midnight on September 7, 1982, and Ralph Shields told Najeway how he and the appellant had committed an armed robbery in Kent. Najeway testified as follows:

"WITNESS: Ralph stated that he had committed an armed robbery in the City of Kent that evening, and that Larry Holdsworth was present, and that he went up to a lady at a night deposit and he had a crowbar and he threatened her, and said "give me the money bitch," and he took the money from her and then he said he knocked her down and laughed. And then Larry said that he heard him say that to the lady and then he heard a scream.

"Q Did Larry say where he was during the time that Ralph was with the lady with the crowbar?

"A In the woods behind the bank.

"Q Did they tell you about how they knew where to commit this crime?

"A Ralph had relayed to me that he had cased the area before and the bank and who made deposits there.

"Q Did they say anything about where this girl was from?

"A That she was from Arby's Restaurant.

"MR. STACKELBERG: YOUR HONOR, I WOULD ASK THAT IT BE CLARIFIED

"BY THE COURT: HE IS ASKING A QUESTION AND WHEN YOU GIVE A RESPONSE SAY WHO SAID THAT, ALL RIGHT

"WITNESS: THAT WAS RALPH SHIELDS WHO SAID THAT

"Q What would Larry be doing while Ralph was saying this?

"A He would be nodding his head.

"***"

Najeway further testified that Ralph was wearing jeans, running shoes, a dark windbreaker, a green hunting hat like a baseball cap, a bandanna, and that "Ralph had a lot of five's" in a roll of cash. According to Najeway, Ralph told him he should have gone along and could have gotten $300. Ralph allegedly bragged it was easy money.

Upon cross-examination, the defense questioned Najeway regarding the promises made in exchange for his testimony:

"***

"Q And Mr. Najeway, now you are sitting here before these people some six years after you had knowledge and you are telling us you are here because of your conscience, is that correct?

"A Partly.

"Q And partly because you have been promised something, isn't that also correct?

"A No, it isn't.

"Q You have been promised that these people are going to do whatever they can to reduce your time, isn't that correct?

"A No, they haven't told me that.

"Q What have they told you?

"A That if I cooperate with the investigation that I wouldn't be charged with any involvement with Shields in this case.

"Q That they wouldn't charge you with any involvement with Shields in this case, so you did have some involvement, is that what you are saying?

"A You pointed out just a minute ago, my involvement -- (did not finish)

"***" (Emphasis added.)

At the end of the state's case in chief, the defense moved for a judgment of acquittal which the trial court overruled. The defense then presented one witness, Gerald Shields, brother of the codefendant, Ralph Shields.

Gerald, who was incarcerated and currently serving time for breaking and entering and who had a long record of convictions, testified that in the summer of 1986, he and Najeway went by the Arby' s Restaurant in Kent and he asked Najeway if he had "cased it out already." Najeway allegedly responded that they make night deposits because he and another individual robbed a lady one night when she was getting ready to make a deposit.

The jury returned a verdict finding both appellant and his codefendant, Ralph Shields, guilty of aggravated robbery. The trial court entered judgment on the verdict and sentenced both defendants to incarceration for a period not less than four years nor more than twenty-five years for their violation of aggravated robbery-offender armed, R.C. 2911.01(A)(1) and (B).

Appellant now appeals, raising the following assignments of error:

"1. The Trial Court erred to the prejudice of appellant in accepting the verdict of the jury as being against the manifest weight of the evidence.

"2. The Trial Court erred, to the prejudice of the appellant, when it denied a defense request for a severance of defendants.

"3. The appellant was denied the effective assistance of counsel, in violation of his rights under the sixth and fourteenth amendments to the constitution of the United States and section 10, article I of the Ohio Constitution.

"4. Trial Court erred, to the prejudice of appellant, in accepting verdict against the manifest weight of the evidence.

"5. The Trial Court erred, to the prejudice of appellant when it overruled. Defense Motion to exclude the testimony of Stephen Najeway. (sic.)

"6. Failure of the state to indict a defendant within the statutor (sic) period of six years deprives the court of jurisdiction to proceed against the defendant.

In the first and fourth assignments of error, appellant argues that the jury's verdict was against the manifest weight of the evidence. Appellant contends that Stephen Najeway openly admitted that he was an accomplice during cross-examination when he stated, "That if I cooperate with the investigation that I wouldn't be charged with any involvement with Shields in this case." Citing 2923.03(D) and cases interpreting that section, appellant argues that he cannot be convicted solely upon the testimony of an accomplice which is uncorroborated by other evidence.

Appellant's argument is well taken.

Prior to its amendment in September 1986,^[1] R.C. 2923.03(D) provided that:

"No person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence."

In State v. Pearson (1980), 62 Ohio St. 2d 291, at paragraph two of the syllabus, the court held:

"In order for the prosecution to satisfy the corroboration requirement of R.C. 2923.03(D), independent evidence must support an accomplice's testimony, and must tend to connect the accused with the alleged crime or must tend to identify the accused as a guilty actor.***"

Accord State v. Deihl (1980), 64 Ohio St. 2d 179; State v. Johnson (1980), 70 Ohio App. 2d 152; State v. Allsup (1980), 67 Ohio App. 2d 131. The corroborating evidence is not required to, by itself, constitute proof beyond a reasonable doubt, but must connect the defendant to the crime either directly or by reasonable inference. Allsup, supra; accord State v. Milo (1982), 6 Ohio App. 3d 19, 24.

In State v. Woods (1983), 13 Ohio App. 3d 49, the court defined accomplice as "one who could be indicted and punished for complicity" explaining that:

"Although we find no definition in Ohio case law of the term `accomplice' as utilized in R.C. 2923.03(D), it is apparent that the General Assembly provided one in the course of defining the offense of complicity in R.C. 2923.03(A). In other words, an `accomplice' is a person who could be indicted and punished for complicity; if he could, then his testimony against his fellow accomplice must be supported by other evidence." Id. at 50-51.

In determining whether the complicity statute applies, we must first decide whether Najeway was an accomplice. Although Najeway did not expressly admit being an accomplice, it can be reasonably inferred that he was an accomplice. Najeway's testimony indicates that his cooperation in the case was in exchange for not being "charged with any involvement with Shields in this case." In other words, Najeway testified in exchange for not being charged as an accomplice to Shields in the case before us. Thus, under the aforementioned definition, Najeway is a person who could have been indicted and punished for complicity and is, therefore, an accomplice. Consequently, his testimony regarding appellant's complicity must be corroborated.

A review of the...