[Cite as State v. Hayes, 2014-Ohio-5295.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                         No. 14AP-2
v.                                                 :                (C.P.C. No. 12CR05-2218)

Kywan M. Hayes,                                    :               (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                   Rendered on November 26, 2014


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellee.

                 Todd W. Barstow, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Defendant-appellant, Kywan M. Hayes, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of aggravated burglary,
aggravated robbery, felonious assault, and kidnapping, following a jury trial. For the
reasons that follow, we affirm the trial court judgment.
        {¶ 2} On April 23, 2012, appellant, Matthew DeLoach, Ramal Milton, and Ricky
Sumling drove to the home of Christopher and Cassidy Good at 7187 Lithopolis Road in
Franklin County. Two of the individuals knocked and, upon Mrs. Good opening the door,
forced their way into the house. Appellant and the other individual followed. Mrs. Good
was pushed to the ground while holding her infant child. The child fell from her arms. A
clump of hair was ripped from her head and she was held at gunpoint while the home was
ransacked and burgled. Mrs. Good identified appellant as the lookout and the person who
No. 14AP-2                                                                                2

stood by the door and prevented her from leaving. She also identified him as the intruder
who gently picked up the child and handed him to her while the burglary was occurring.
Mr. Good was forced to the ground at gunpoint in the kitchen. In the midst of this, one of
Mr. Good’s workers arrived, causing appellant and his companions to run from the house
toward DeLoach’s car. Mr. Good ran after them. Sumling turned and shot Mr. Good in
the leg. Appellant, DeLoach, Milton, and Sumling fled; however, about a mile down the
road, they crashed the car. Upon crashing, appellant separated from his companions and
hid in a culvert where he was later found by sheriff deputies.
       {¶ 3} Earlier the same day, the Goods' home had been burglarized in a separate
incident. The Goods did not contact the police at that time because they were growing
large amounts of marijuana in their basement. Sumling testified that appellant came to
his home that same morning to smoke marijuana and play video games. Appellant was
present when appellant's cousin, identified as "T," came over and notified Sumling about
a tip he had received from a man named "Black" regarding a large amount of marijuana
and cash in the Goods' home. Black claimed to have burglarized the Goods' home that
morning. Sumling testified that he, "T," Black, DeLoach, and Milton decided to go back to
the Goods' home and take the marijuana and cash. He further testified that appellant was
part of the planning for the robbery and burglary of the Goods' residence.
       {¶ 4} After being apprehended, appellant was interviewed by Detective Braden of
the Madison Township Police Department. According to Detective Braden, appellant
stated that he went to the Goods' home only to purchase marijuana, but not to rob them.
Appellant testified at trial to the same and denied knowing what Sumling, Milton, and
DeLoach had planned.       Detective Braden further testified, however, that appellant
admitted that he knew there was a "grow operation" in the house and that he was involved
in the planning of the burglary. (Tr. 318, 322-23, 342.)
       {¶ 5} Appellant was charged with one count of aggravated burglary, one count of
aggravated robbery, two counts of kidnapping, all felonies of the first degree, and one
count of felonious assault, a felony of the second degree. All counts were accompanied by
three-year firearm specifications. On October 21, 2013, a jury found appellant guilty of all
counts and specifications. On December 2, 2013, the trial court sentenced appellant,
No. 14AP-2                                                                                    3

merging the kidnapping counts with the aggravated robbery count. The court ultimately
imposed a nine-year prison sentence. Appellant timely filed this appeal.
       {¶ 6} Appellant asserts one assignment of error:
               THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
               OF DUE PROCESS OF LAW AS GUARANTEED BY THE
               FOURTEENTH AMENDMENT TO THE UNITED STATES
               CONSTITUTION AND ARTICLE ONE SECTION TEN OF
               THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF
               AGGRAVATED BURGLARY; AGGRAVATED ROBBERY;
               FELONIOUS ASSAULT AND KIDNAPPING AS THOSE
               VERDICTS WERE NOT SUPPORTED BY SUFFICIENT
               EVIDENCE AND WERE ALSO AGAINST THE MANIFEST
               WEIGHT OF THE EVIDENCE.

       {¶ 7}   "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine "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 (1991), paragraph
two of the syllabus, superseded by constitutional amendment on other grounds as
recognized in State v. Smith, 80 Ohio St.3d 89, 102 (1997).
       {¶ 8} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the
criminal manifest weight of the evidence standard addresses the evidence's effect of
inducing belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-
2202, ¶ 25. "When a court of appeals reverses a judgment of a trial court on the basis that
the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth
juror' and disagrees with the factfinder's resolution of the conflicting testimony."
Thompkins at 387. " 'The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving the 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., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). This
No. 14AP-2                                                                                   4

authority "should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction." Thompkins at 387.
       {¶ 9} R.C. 2911.11 defines aggravated burglary and states in part:
              (A) No person, by force, stealth, or deception, shall trespass
              in an occupied structure * * * when another person other than
              an accomplice of the offender is present, with purpose to
              commit * * * any criminal offense, if any of the following
              apply:

              (1) The offender inflicts, or attempts or threatens to inflict
              physical harm on another;

              (2) The offender has a deadly weapon or dangerous ordnance
              on or about the offender's person or under the offender's
              control.

The offense of aggravated robbery is set forth under R.C. 2911.01(A), which states: "No
person, in attempting or committing a theft offense * * * or in fleeing immediately after
the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender's
person or under the offender's control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it." The offense of kidnapping is defined under R.C.
2905.01(A), which provides: "No person, by force, threat, or deception, * * * by any
means, shall remove another from the place where the other person is found or restrain
the liberty of the other person, for any of the following purposes: * * * (2) To facilitate the
commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical
harm on the victim or another."
       {¶ 10} Felonious assault, as relevant to appellant's conviction, is defined as: "No
person shall knowingly * * * (1) Cause serious physical harm to another or to another's
unborn [or] (2) Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance." R.C.2903.11(A). "A person
acts knowingly, regardless of his purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist." R.C.
2901.22(B). "[F]elonious assault under R.C. 2903.11(A), combined with the definition of
'knowingly' found in R.C. 2901.22(B), does not require that a defendant intended to cause
'serious physical harm,' but rather, that the defendant acted with an awareness that the
No. 14AP-2                                                                                 5

conduct probably would cause such harm." (Emphasis added.) State v. Smith, 10th Dist.
No. 04AP-726, 2005-Ohio-1765, ¶ 28, citing State v. Lee, 10th Dist. No. 97APA12-1629
(Sept. 3, 1998).
       {¶ 11} Finally, in addition to the statutory definitions of the offenses charged, we
also consider the elements for complicity found in R.C. 2923.03:
              (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[.]

       {¶ 12} The Supreme Court of Ohio has stated:

              To support a conviction for complicity by aiding and abetting
              pursuant to R.C. 2923.03(A)(2), the evidence must show that
              the defendant supported, assisted, encouraged, cooperated
              with, advised, or incited the principal in the commission of
              the crime, and that defendant shared the criminal intent of
              the principal. Such intent may be inferred from the
              circumstances surrounding the crime.

State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus.
       {¶ 13} In challenging the jury's verdicts, appellant argues generally that the state's
witnesses were not credible because they benefited from cooperating with the state.
Specifically, appellant challenges the testimony of Christopher and Cassidy Good and
Ricky Sumling. At the time of the burglary, the Goods were growing a significant amount
of marijuana plants in their home. As a result, they were both indicted on charges of
illegal cultivation of marijuana, a felony of the second degree, possession of marijuana
and aggravated possession of drugs, both felonies of the third degree. These charges were
still pending at the time of appellant’s trial. Both Goods testified that they understood
that they would not receive anything in regards to their case in exchange for their
testimony at appellant’s trial. Ricky Sumling was charged with the same offenses as
appellant, as well as having a weapon under disability. Sumling testified that, as part of a
plea bargain, he would testify truthfully against appellant and his other companions. In
exchange, the state would jointly recommend a prison sentence of five years (rather than
the possible eleven years) for his plea of guilty to felonious assault.
No. 14AP-2                                                                                               6

        {¶ 14} Nothing indicates here that the jury lost its way in assessing those
considerations. The jury knew the potential personal motivations of the witnesses, and the
jury members were free to determine whether the witnesses' testimony was credible in
light of their motivations and any consideration they might have received for testifying.
See State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 30 (concluding the jury
was free to assess a witness's credibility where the details of the witness's plea agreement
were revealed); see also State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840,
¶ 54-55, discretionary appeal not allowed, 125 Ohio St.3d 1416, 2010-Ohio-1893
(deferring to the trier of fact's credibility determinations even though "both witnesses had
something personal to gain from their testimony").
        {¶ 15} Co-defendant Ricky Sumling testified that appellant was "in on [the]
planning" to go to the victims' house and make some quick money. (Tr. 224.) Sumling
also testified that initially "[w]asn't no plan because wasn't nobody supposed to be there.
Supposed to be just a burglary. Black dude, the dude that came over, told us there was
nobody there, we had to go and do it right then and there." (Tr. 224.) Sumling testified
that he had the gun with him because he was just "[b]eing cautious and being suspicious
of the circumstances." (Tr. 227.) However, once they saw the house, they realized that
people were in the house. Then, according to Sumling, they devised a plan to continue
with the robbery. (Tr. 230.) Sumling also testified that appellant went searching through
the house for money while Sumling held a victim down with a gun. (Tr. 235.) At the
conclusion of his direct examination, Sumling reiterated that appellant was in on the
planning of the burglary as well as the planning of the robbery. (Tr. 246.)1


1 We note as well that, although appellant steadfastly denied knowing that Sumling had planned to burgle

the Goods’ home, with regards to the manifest-weight analysis, a reasonable inference could be made that he
did know based on the following exchange between appellant and the prosecutor on cross-examination (Tr.
461-62):

                Q: So when [the detectives] asked you * * *, and you had no idea this was
                going to be a robbery when you left the house? Remember that question?

                A: Yes.

                Q: And your answer was, when I left the house? No. But then when we
                pulled in next to the house, about ten yards or so, that’s when we started
                talking?

                A: Yes.
No. 14AP-2                                                                                7

       {¶ 16} Construing this evidence in favor of the state, as we are required to do when
considering a challenge to the sufficiency of the evidence, the jury may have logically
concluded that appellant participated in the burglary, robbery, and kidnapping at the very
least as an accomplice. Furthermore, the jury may have concluded that appellant
knowingly supported, assisted, or cooperated with Sumling in the commission of
felonious assault by shooting Mr. Good. In consideration of the evidence presented at
trial, we conclude there was sufficient evidence to support the verdicts. Furthermore,
upon review of the record, we cannot conclude that the jury lost its way and created such a
manifest miscarriage of justice as to warrant reversal of the convictions. Accordingly, we
find that appellant's convictions are not against the manifest weight of the evidence.
       {¶ 17} With respect to the felonious assault charge, the dissent raises an important
issue, and we agree that appellant's "mere presence" at the time of the shooting would not
suffice to establish accomplice liability. See State v. Widner, 69 Ohio St.2d 267, 269
(1982) ("Appellee contends─and we agree─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. Ranson, 10th Dist. No. 01AP-1049, 2002-Ohio-2398, ¶ 29 ("The
mere presence of the accused during the commission of a crime does not necessarily
amount to being an accomplice."). We also agree that the evidence does not suggest that
appellant actively encouraged, advised, incited, or even assisted with the shooting of Mr.
Good. Compare In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056 (defendant was in a
group of individuals who were passing around a gun and was heard to shout "shoot" and
"shoot the [expletive]" immediately before shots were fired by an unidentified member of
the group).
       {¶ 18} We do find, however, that the evidence supports a conclusion that appellant
cooperated with Ricky Sumling in all of the day's activities, from the planning of the
robbery to the flight therefrom, and, therefore, appellant cooperated with the felonious
assault as well. Sumling testified that appellant was in on the planning of the burglary and
robbery. He also testified that appellant was present when his companions pointed the
gun at Mr. Good inside the house during the course of the robbery. Mrs. Good similarly
testified that appellant was present during these events. Sumling shot Mr. Good, as he,
appellant, and their companions were fleeing the scene. Both Sumling and appellant
No. 14AP-2                                                                                               8

testified that Mr. Good was pursuing the group and reaching for appellant just before
Sumling fired the shots. (Tr. 236, 410.) After the shooting, appellant proceeded to get into
the car with Sumling and their companions. Appellant did not part company with
Sumling until after the car crash when Sumling and DeLoach fled on foot in one direction,
and appellant and Milton fled on foot in another direction.
        {¶ 19} " '[P]articipation in criminal intent may be inferred from presence,
companionship and conduct before and after the offense is committed.' " Johnson at 245,
quoting State v. Pruett, 28 Ohio App.2d 29, 34 (4th Dist.1971). "A common purpose
among two people to commit a crime need not be shown by positive evidence but may be
inferred from circumstances surrounding the act and from the defendant's subsequent
conduct." State v. Dortch, 10th Dist. No. 12AP-125, 2012-Ohio-6196, ¶ 31. In State v.
Ranson, 10th Dist. No. 01AP-1049, 2002-Ohio-2398,2 this court considered the issue of
accomplice liability under similar circumstances:
                Because the intent of an accused person dwells in his mind,
                * * * we must examine the surrounding facts and circum-
                stances to determine whether appellant aided or abetted in
                committing aggravated robbery, robbery, and felonious
                assault. In this regard, we can determine by his actions that
                appellant's complicity to attempt to cause physical harm to
                another, possess a deadly weapon, or inflict or attempt to
                inflict or threaten to inflict physical harm upon another began
                at the moment appellant chose to run away from the crime
                scene with his accomplices. His complicity continued when he
                chose to enter the getaway vehicle and ride in the passenger
                seat of the van with his accomplices in an attempt to elude the
                police. * * * This is not a case in which appellant was merely
                an innocent passenger in the vehicle. He had a previous
                connection with the crimes and occupants and was
                intentionally using the vehicle, and benefitting from the
                unlawful actions of his accomplices, in order to escape capture
                by the police. By his conduct, appellant encouraged the crimes
                and his criminal intent may be inferred from his presence,
                companionship, and conduct both before and after the break-
                in at the pharmacy.

Id. at ¶ 32.



2We note that the dissenting judge in the present case also dissented in part from the decision in Ranson.
See Ranson at ¶ 37-61.
No. 14AP-2                                                                                9

       {¶ 20} In this case, appellant fled the scene together with Sumling, DeLoach, and
Milton. As in Ranson, appellant fled toward the same vehicle as his companions, rather
than breaking his association by fleeing alone. Further, the evidence demonstrates that
Mr. Good was reaching for appellant immediately before he was shot. Thus, appellant
directly benefitted from Sumling's action in shooting Mr. Good; otherwise, Mr. Good may
have hindered appellant's ability to flee. Moreover, after Mr. Good was shot, appellant
continued to flee with Sumling, DeLoach, and Milton until the car crashed. Under the
facts presented here, we conclude that appellant had preceding and subsequent
connection and involvement with the events and circumstances leading to the
commission of the crimes. See, e.g., State v. Goudlock, 8th Dist. No. 35172 (Oct. 14, 1976).
This is not a case where the jury clearly lost its way and created a manifest miscarriage of
justice by convicting appellant of felonious assault as an accomplice. See Thompkins at
387.
       {¶ 21} Having found that the convictions are supported by sufficient evidence and
that they are not against the manifest weight of the evidence, appellant’s assignment of
error is overruled.
       {¶ 22} Based upon the foregoing, appellant’s assignment of error is overruled, and
the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                        Judgment affirmed.
                                 O'GRADY, J., concurs.
                        TYACK, J., concurs in part; dissents in part.

TYACK, J., concurring in part and dissenting in part.
       {¶ 23} I respectfully dissent.
       {¶ 24} I simply find no support in the record for a finding that Kywan Hayes
knowingly aided or abetted in the shooting of Christopher Good. The mere presence of
Hayes at the time the shooting occurred does not make him an accomplice in the
shooting.
       {¶ 25} The author of the majority opinion cites the syllabus to State v. Johnson, 93
Ohio St.3d 240 (2001), but then does not follow it. Hayes did not support, assist,
encourage, cooperate with, advise or incite the shooter to shoot. The shooter, Ricky
Sumling, did the shooting with no help or encouragement of Kywan Hayes.
No. 14AP-2                                                                             10

       {¶ 26} Under the circumstances, Hayes is not guilty of complicity in felonious
assault. To the extent the majority of this panel affirms the conviction on that charge, I
dissent.
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