State v. Towns

• Citation: 301 N.E.2d 700,35 Ohio App.2d 237
• Parties: , 64 O.O.2d 371 The STATE of Ohio, Appellee, v. TOWNS, Appellant.
• Decision Date: 26 June 1973
• Court: Ohio Court of Appeals

Page 237

35 Ohio App.2d 237

301 N.E.2d 700, 64 O.O.2d 371

The STATE of Ohio, Appellee, v. TOWNS, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 26, 1973.

Syllabus by the Court

1. Where parties stipulate in writing to take a polygraph test and be bound thereby, and where, pursuant to such stipulation, such test is properly given, the results are admissible at trial.

2. Where evidence at a criminal trial is introduced by one side that a person has submitted to a polygraph test, the court in its sound discretion may admit evidence of the results of the test to the extent necessary to remove prejudice which may ensue from the introduction of the original evidence.

George C. Smith, Pros. Atty., and Eugene P. Weiss, Columbus, for appellee.

Knepper, White, Richards & Miller, Columbus, for appellant; and R. Douglas Wrightsel, Columbus, of counsel.

STRAUSBAUGH, Judge.

This is an appeal from a conviction in the Common Pleas Court of Franklin County of the defendant for a violation of R.C. 2901.13, armed robbery.

The facts, as indicated by the record, are that about 9:30 a. m. on December 10, 1971, John Butler, the manager of Sandy's Drive-In on Mt. Vernon Avenue, was found in the basement of the drive-in, by two employees arriving to begin their work, critically wounded with two .32-caliber bullet wounds in his head. The office had been ransacked; the file cabinet had been opened, with papers strewn over the floor; and the safe was standing open with $100 in petty cash missing. Kathy McFann testified that sometime during the morning of December 10, 1971, the defendant, whom she identified, took her and a girl by the name of Judy to the Western Union office to pick up $25, which Capp Anderson, the pimp she worked for in Landover, Maryland, had sent to her. At that time, she testified, the defendant said that he did not want to ride around downtown to different stores because 'his car was hot because he used it in a robbery' and that he and Jimmy Raymond had robbed this man at Sandy's Drive-In on Mt. Vernon Avenue. She further testified that later that day the defendant and two of his friends drove her to Aldover, Maryland, the trip taking about twelve hours, and they arrived in Landover about 1 a. m., December 11, 1971.

Ronald G. Nulle testified that in the early morning of February 11, 1972, at the request of Ron Price of the Columbus Police Department, he had a conversation with the defendant regarding a robbery that Nulle was supposedly planning that would take place in about another week. He stated that the defendant said he needed some money. Nulle asked him the following questions: 'Was he qualified? What could he do? Did he know anything about armed robbery as such?' Nulle further asked him: 'Did he have any heart? What would he do under pressure if a robbery occurred? got under pressure, did he have-could he just take care of himself in an armed robbery?' Nulle then testified: 'That is when he told me about the first robbery that I mentioned and started talking about the second, which was the Sandy Drive-In robbery.' Nulle further testified that the defendant stated:

'The way they had planned to take if off was to pull up in the alley behind Sandy's, but off to the side eight feet, I haven't been in the area myself, planning to pull up there waiting for the manager to come in that morning in the drive-in and catch the manager before he could get in the building, and take him then. * * * He said they missed the manager going into the place and so they decided to go and knock on the back door and the manager came to the door and asked what they wanted and like then they said they wanted to put an application for a job, and while they went in and when they pulled pistols on him then, and the man Joe, never did say his name, they got in a hassle and they had a fight, you know, Joe came between them and tried to separate them and it went off, Joe said he grabbed the gun and it went off.'

William Rush, who identified the defendant in court, testified that between 7:30 and 8 o'clock a. m., December 10, 1971, he saw the defendant with two other men sitting in the Brassfield Grocery in the 900 block of Mt. Vernon Avenue about a block and a half from Sandy's Drive-In.

The defendant and his wife each testified that the defendant was home in bed with his wife all night and did not get up until approximately 9:30 a. m., December 10, 1971; that he did not leave the house until 9:30 or a quarter of 10 that morning.

Trial in the common pleas court was to a jury, which returned a verdict of not guilty to the charge of murder in the first degree (R.C. 2901.01) and guilty of armed robbery (R.C. 2901.13), from which judgment this appeal is taken.

Defendant's first assignment of error is:

'The trial court erred in overruling defendant's motion to dismiss the armed robbery count of the indictment at the close of prosecution's case.' A review of the evidence indicates that the prosecution during its case presented a prima facie case upon which reasonable minds could differ and from which the elements of the charge of armed robbery were established by sufficient evidence to warrant the findings of guilty by a jury. As stated above, the prosecution proved that a crime had been committed; the defendant was identified as being within one and one-half blocks of the scene of the crime shortly before it took place; and he stated to two different persons that he committed the crime. There being a question of credibility of witnesses, a question of fact for the jury presented itself. We therefore find no error committed by the trial court in overruling defendant's motion for a directed verdict.

Defendant's second assignment of error is:

'The trial court erred in giving an improper charge on aiding and abetting, and in failing to give the charge requested by defense counsel.' The court charged the jury as follows:

'If you find that an armed robbery was knowingly committed by two or more persons, only one of whom used a dangerous weapon, each person participation is guilty of armed robbery.

'Any person who aides (sic), abetes (sic), or procures, another to commit an offense, may be prosecuted and punished as if he were the principal offender. A person who knowingly aides (sic), helps, assists, encourages or directs another in the commission of a crime is regarded as if he were the principal offender and is just as guilty as if he personally performed every act constituting the offense.

'When two or more persons have a common purpose to commit a crime and one does one part and a second performs another, those acting together are equally guilty of the crime.'

At the end of the charge the court inquired whether there were any additions for the defense. Defense counsel responded as follows:

'I don't think Judge that you stated that for aiding and abetting you must find beyond a reasonable doubt that there were two or more persons involved in the aiding and abetting statute.

'* * *

'One element there must be tow or more persons.

'* * *

'In other words you say first a person is guilty of aiding and abetting you must find two or more persons there.

'* * *

'There must be tow or more persons, one of the elements has to be beyond a reasonable doubt.

'I am saying that you should charge the jury that they must find from proof beyond a reasonable doubt that there were two or more persons involved before you can find him guilty as an aider or abetter.' The court refused to give the charge.

Defense counsel first argues that the charge was improper because there was no showing that a principal was guilty, basing his contention upon a statement by the court in State v. Isaacs (1970), 24 Ohio App.2d 115, at page 121, 265 N.E.2d 327, at page 331. Later, in the same paragraph, on the following page, the court goes on to say: '* * * This does not mean that the principal has to be tried in the same case, or, for that matter, that he must be tried and convicted at all. It merely means that before there can be an aider and abettor to a crime there must be proof that the crime to which the aiding and abetting pertains has been committed.'

R.C. 1.17 provides: 'Any person who aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.' The defendant herein was indicted and charged in both counts, murder in the first degree and armed robbery. At the trial there was evidence that more than one individual participated in the commission of the offenses. There was sufficient evidence to support the finding that the defendant was a principal rather than an aider and abettor. There was ample proof that the crime of armed robbery had been committed. The fact that the co-perpetrator of the crime of armed robbery was not apprehended and tried in no way precludes the trial and conviction of the defendant herein.

The defendant next argues that the charge given by the court does not clearly show the need for finding knowledge on the defendant's part. The defendant quotes the first sentence of the second paragraph to show this. However, the second paragraph is as follows: 'A person who Knowingly aides (sic), helps, assists, encourages or directs another in the commission of a crime is regarded as if he were the principal offender and is just as guilty as if he personally performed every act constitution the offense.' (Emphasis added.) The last paragraph on that page is the instruction of the trial court defining the word 'knowingly.' We find that the charge given by the trial court required the jury to make a finding of knowledge on the part of the defendant.

Defendant next argues that the charge requested by defense counsel at the conclusion of the court's instruction to the jury was proper, and that the court refused to give it. The defendant argues that at the conclusion of the court's instructions, the court refused to 'clarify its charge on aiders...