[Cite as State v. Lambes, 2020-Ohio-3304.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                    Hon. John W. Wise, J.
                                               Hon. Craig R. Baldwin, J.
 -vs-
                                               Case No. 2019 AP 08 0026
 LUCIAN A. LAMBES

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Tuscarawas County
                                               Court of Common Pleas, Case No. 2018
                                               CR 12 0461


 JUDGMENT:                                     Affirmed

 DATE OF JUDGMENT ENTRY:                       June 11, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 RYAN STYER                                    JACOB T. WILL
 Prosecuting Attorney                          54 E. Mill Street – Suite #400
 Tuscarawas County Prosecutor’s Office         Akron, Ohio 44308
 125 East High Avenue
 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2019 AP 08 0026                                              2


Hoffman, P.J.
       {¶1}   Appellant Lucian Lambes appeals the judgment entered by the Tuscarawas

County Common Pleas Court convicting him of three counts of attempted murder (R.C.

2903.02), three counts of felonious assault (R.C. 2903.11(A)(2)), and one count of

aggravated robbery (R.C. 2911.01(A)(1)), all with accompanying firearm specifications,

and sentencing him to an aggregate prison term of nineteen years. Appellee is the state

of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 4, 2018, Appellant and a friend, Lisa Freetage, spent the day

together using methamphetamine and driving around.          Appellant and his friend Ian

Cultrona, through cell phone calls and text messages, discussed the need to replenish

something which was depleted. In the text dialogue, Appellant sent Cultrona photos of a

semi-automatic handgun, and Cultrona replied with a photo of a loaded revolver from the

vantage point of the shooter. Appellant texted in response to the photo, “Lol who we

gonna get.”     Cultrona responded, “Someone….Let me know let’s get it jump[i]ng.”

Appellant replied he was “trying to line shit up.” Cultrona responded with a picture of two

handguns, a brass-knuckled knife, and black bandanas.

       {¶3}   Cultrona texted Appellant the next morning.       Cultrona had arranged a

purchase of something for himself for $425, and Cultrona told Appellant if he wanted

some, he had to hurry. Appellant expressed he had to “grab loot” because he had no

money, and Cultrona responded he would put the order in.

       {¶4}   Cultrona went to the home of Samantha Owen on December 5, 2018, and

used methamphetamine with Owen. Appellant, Freetage, and their friend Doug Casteel
Tuscarawas County, Case No. 2019 AP 08 0026                                            3


also came to Owen’s residence, driving Freetage’s black car. The five left Owen’s house

in two vehicles to travel to Casteel’s residence.

       {¶5}   While at Casteel’s apartment, Owen and Freetage remained in the kitchen.

The men were coming and going from a bedroom. In the presence of all members of the

group, Cultrona displayed and loaded a black revolver. Through text and Facebook

messages, Owen initiated contact with Brennan Wilkin, and arranged to purchase an

ounce of “blueberry cheesecake” marijuana from him for $200. Casteel directed the

arrangement with Wilkin through Owen. They arranged to meet Wilkin in a secluded

location on a country road. After these arrangements were made, the group left Casteel’s

apartment in two cars. Appellant drove Freetage’s black car with Casteel in the front

passenger seat and Freetage laying down in the backseat. Cultrona drove his vehicle

with Owen as the front passenger.

       {¶6}   Both vehicles proceeded to the secluded pull-off location on Liberty Road.

During the trip, Freetage noted Appellant stopped her vehicle and did something to the

only license plate, which was located on the rear of the car. Freetage believed Appellant

removed her license plate. Casteel drove to the scheduled meeting point with Wilkin,

while Appellant parked a short distance away at a gated-lane entrance on Liberty Road.

The two cars remained in contact with each other through cell phone calls.

       {¶7}   When Wilkin arrived, he parked behind Cultrona’s vehicle. He had two

passengers with him. Owen approached Wilkin’s vehicle, and asked to sample the

marijuana. Wilkin provided the sample to Owen and she returned to Cultrona’s vehicle.

Freetage’s black car quickly pulled behind Wilkin’s vehicle. Appellant and Casteel exited
Tuscarawas County, Case No. 2019 AP 08 0026                                               4


wearing bandanas as masks and brandishing handguns. Cultrona also exited his vehicle,

pulling a bandana over his face and brandishing a gun.

       {¶8}   Appellant, Casteel and Cultrona surrounded Wilkin’s vehicle, aiming their

handguns at the occupants and demanding money and marijuana. Wilkin threw a yellow

plastic bag containing the marijuana from the vehicle and drove quickly away. One of the

men fired at Wilkin’s SUV, flattening the rear passenger-side tire.

       {¶9}   Appellant and Casteel returned to Freetage’s car and began to chase

Wilkin’s vehicle. A nearby resident heard gunshots as the vehicles sped by his residence.

The witness also noted Wilkin’s vehicle had a flat tire, and the black car did not have a

license plate. The chase continued over a four-mile course, with Casteel and/or Appellant

continuing to fire approximately 20 shots at Wilkin’s vehicle. One bullet entered Wilkin’s

vehicle, grazing the leg and severing the fingertip of one of his passengers.

       {¶10} Terry Stull lived in the area, and while driving home from work saw the

chase approaching in his rear-view and side mirrors. He heard two or three gunshots.

Both vehicles passed his truck, and Freetage’s vehicle maneuvered in front of Wilkin’s

SUV and came to a stop. Appellant and Casteel exited, aiming guns at Wilkin’s vehicle.

Wilkin put the SUV in reverse. The two passengers jumped out of the SUV and jumped

into Stull’s truck. Stull took them to the Newcomerstown Police Department.

       {¶11} Meanwhile, Appellant and Casteel proceeded to Kimbolton, where Freetage

believed Appellant put the license plate back on her car. The group then traveled to New

Philadelphia, where they stayed until Cultrona called to tell Casteel it was clear to return

home. After dropping Casteel off at his home in Newcomerstown, Appellant and Freetage
Tuscarawas County, Case No. 2019 AP 08 0026                                               5


drove to Baltimore, Maryland, where they spent the night with Freetage’s mother.

Appellant and Freetage returned to Ohio the next day.

       {¶12} Two hours after the shooting, Owen was arrested leaving her child’s school

Christmas program. Cultrona was apprehended in Owen’s basement. In his possession,

police found a .357 revolver handgun, a knife with brass knuckles, a yellow plastic grocery

bag with marijuana, $400 in cash, and three bandanas.

       {¶13} Appellant was arrested five days later, on December 10, 2018, following a

car chase with the Ohio State Highway Patrol.

       {¶14} Appellant was indicted by the Tuscarawas County Grand Jury on eight

counts: three counts of attempted murder, three counts of felonious assault, one count

of aggravated robbery, and one count of conspiracy, with accompanying firearm

specifications. Prior to trial, the State dismissed the charge of conspiracy. The case

proceeded to jury trial on the remaining counts. The jury convicted Appellant on all

counts.

       {¶15} The trial court found the convictions of felonious assault were allied offenses

of similar import to the attempted murder convictions. The State elected to have Appellant

sentenced on the attempted murder convictions. The court sentenced Appellant to six

years incarceration on each count of attempted murder, to be served concurrently to each

other. Appellant was sentenced to eight years incarceration for aggravated robbery, to

be served consecutively to the concurrent terms of incarceration for attempted murder.

After merging the three year and five year firearm specifications, the court sentenced

Appellant to a five year mandatory term of incarceration, to be served consecutively to

the other sentences, for an aggregate term of incarceration of nineteen years.
Tuscarawas County, Case No. 2019 AP 08 0026                                                6


       {¶16} It is from the July 22, 2019 judgment of conviction and sentence Appellant

prosecutes this appeal, assigning as error:



              I. THE JURY’S FINDING OF GUILT AS TO ALL CHARGES WAS

       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED

       AT TRIAL.

              II. THE APPELLANT’S CONVICTIONS AS TO ALL CHARGES

       WERE AGAINST THE SUFFICIENCY OF THE EVIDENCE PRESENTED

       AT TRIAL.

              III. THE COURT COMMITTED PLAIN ERROR WHEN IT

       INSTRUCTED THE JURY ON THE ELEMENTS OF COMPLICITY WHEN

       THE DEFENDANT WAS NEVER PUT ON NOTICE OF THE CHARGE

       THROUGH THE INDICTMENT.



                                               I., II.

       {¶17} Appellant argues the judgments of conviction are against the manifest

weight and sufficiency of the evidence.       He argues the evidence was sufficient to

demonstrate he was present at the scene of the crimes, but the evidence does not

demonstrate his participation in the crimes. He specifically argues there is no evidence

to demonstrate he used or brandished a firearm.

       {¶18} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
Tuscarawas County, Case No. 2019 AP 08 0026                                               7


and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

       {¶19} An appellate court's function when reviewing the sufficiency of the evidence

is to 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, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

       {¶20} Appellant was convicted of three counts of attempted murder. R.C. 2903.02

defines murder, “No person shall purposely cause the death of another.” Attempt is

defined by R.C. 2923.02, which provides, “No person, purposely 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.” Appellant

was also convicted of three counts of felonious assault, defined by R.C. 2903.11(A)(2)

as knowingly “causing or attempting to cause physical harm by means of a deadly weapon

or dangerous ordnance.” Appellant was also convicted of aggravated robbery in violation

of R.C. 2911.01(A)(1), which provides:



              (A) No person, in attempting or committing a theft offense, as defined

       in section 2913.01 of the Revised Code, or in fleeing immediately after the

       attempt or offense, shall do any of the following:
Tuscarawas County, Case No. 2019 AP 08 0026                                              8


             (1) Have 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.



      {¶21} The State presented evidence the evening before and the morning of the

crimes, Appellant and Cultrona engaged in conversation concerning the need to acquire

money Appellant did not have, and their intention to “get someone.” The conversations

included photographs of weapons.

      {¶22} Lisa Freetage testified when the group left Casteel’s house, where Cultrona

loaded a gun in front of them, Appellant was driving her black car. She was laying down

in the backseat, but at one point the car stopped and Appellant did something to the back

of the vehicle. She assumed he was removing the license plate. She testified when they

stopped again, both men got out of the vehicle and she heard screaming and loud bangs.

Appellant and Casteel got back in the car. She testified they drove to Kimbolton where

Appellant put the license plate back on the car. She testified she didn’t feel she could go

home because she knew something had happened using her car, and so she and

Appellant drove to Baltimore, Maryland for the night.

      {¶23} Both passengers of Wilkin’s car testified when they stopped with Wilkin, two

men came up to the car pointing guns at them. They testified they were shot at by

someone in the black car as they were chased. One passenger was struck by a bullet in

the leg and the finger during the chase.

      {¶24} Brennan Wilkin testified after Samantha asked to sample the marijuana,

another car pulled up. He testified the occupants, who were wearing bandanas, got out
Tuscarawas County, Case No. 2019 AP 08 0026                                                9


and came to Wilkin’s vehicle. The men had guns and asked for money. When Wilkin

pulled out, one of them shot the tire out of his car. He testified they were chased by the

black car, and shots were fired from the black car, hitting one of his passengers.

       {¶25} Samantha Owen testified when the black car arrived at the location where

she arranged to meet Wilkins, the occupants jumped out of the car. She recognized the

clothes Casteel was wearing, and assumed the other man was Appellant. Although she

did not remember his clothes, she was aware Appellant was driving the black car when

the group left Casteel’s apartment to meet Wilkin. She testified Casteel and Appellant

jumped out of the car, holding guns on Wilkin and his friends.

       {¶26} This was sufficient testimony, if believed by the jury, to establish Appellant

was not merely present at the scene, but held a gun to the occupants of Wilkin’s car

during the robbery. The testimony, if believed by the jury, further demonstrates Appellant

was either the occupant or the driver of the black car during the ensuing chase, and either

fired his own weapon at Wilkins’s car or participated in the chase while Casteel fired at

Wilkin’s car. We find the judgment is supported by sufficient evidence.

       {¶27} Appellant argues the testimony of Owen and Freetage is not credible. He

argues they both were using methamphetamine, and further were motivated to lie.

       {¶28} Freetage admitted her use of methamphetamine to the jury, and admitted

she received a plea deal in order to testify against Appellant. She admitted pursuant to

the plea deal she would receive probation, and she desired to avoid prison in order to get

her kids back. Owen likewise admitted to drug use, admitted to a plea deal, and testified

she did not want to lose her children. Owen also admitted she had previously lied to

police. However, the jury is in a better position than this court to judge the credibility of
Tuscarawas County, Case No. 2019 AP 08 0026                                               10


witnesses, and we find the jury did not lose its way in believing the trial testimony of Owen

and Freetage. Further, much of the testimony of Freetage and Owen concerning the

events of December 5, 2018, was corroborated by Wilkin and his passengers, as well two

neighbors who saw the chase and heard the shots fired. In addition, a Guernsey County

Sheriff’s Deputy on surveillance in Kimbolton saw Freetage’s black car and noted the

license plate number. This testimony corroborated Freetage’s testimony after the chase,

they drove to Kimbolton, where she believed Appellant put the license plate back on the

rear of her car.

       {¶29} Appellant further argues the police did not take DNA from Freetage’s car or

from the bandanas seized from Cultrona to link Appellant to the crimes, nor did they

conduct residue testing on Appellant to determine if he fired a weapon. Appellant was

not arrested until five days after the crime, and does not challenge his presence at the

scene, nor his round trip to Baltimore in Freetage’s car. Therefore, scientific testing would

have been of limited probative value. We find the lack of scientific evidence linking

Appellant to the crime does not render the judgment against the manifest weight of the

evidence. See State v. Fields, 5th Dist. Stark No. 2018CA00159, 2019-Ohio-2252, ¶19.

       {¶30} The first and second assignments of error are overruled.

                                                III.

       {¶31} In his third assignment of error, Appellant argues the court committed plain

error in instructing the jury on complicity, as complicity was not charged in the indictment.

       {¶32} Appellant concedes he did not object to the instruction. Failure to object

before the jury retires, absent plain error, constitutes waiver. State v. Williford, 49 Ohio
Tuscarawas County, Case No. 2019 AP 08 0026                                                 11


St.3d 247, 551 N.E.2d 1279 (1990). The Ohio Supreme Court has clarified the standard

of review for plain error:



              Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

       errors or defects affecting substantial rights” notwithstanding an accused's

       failure to meet his obligation to bring those errors to the attention of the trial

       court. However, the accused bears the burden to demonstrate plain error

       on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034,

       19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

       rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.

       Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

              Even if the error is obvious, it must have affected substantial rights,

       and “[w]e have interpreted this aspect of the rule to mean that the trial

       court's error must have affected the outcome of the trial.” Id. We recently

       clarified in State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38

       N.E.3d 860, that the accused is “required to demonstrate a reasonable

       probability that the error resulted in prejudice—the same deferential

       standard for reviewing ineffective assistance of counsel claims.” (Emphasis

       sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,

       81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

              If the accused shows that the trial court committed plain error

       affecting the outcome of the proceeding, an appellate court is not required

       to correct it; we have “admonish[ed] courts to notice plain error ‘with the
Tuscarawas County, Case No. 2019 AP 08 0026                                               12


       utmost caution, under exceptional circumstances and only to prevent a

       manifest miscarriage of justice.’” (Emphasis added.) Barnes at 27, 759

       N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

       (1978), paragraph three of the syllabus.



       {¶33} State v. Thomas, 2017–Ohio–8011, ¶¶ 32–34.

       {¶34} R.C. 2923.03 defines complicity. Subsection (F) of the statute provides, “A

charge of complicity may be stated in terms of this section, or in terms of the principal

offense.” A defendant charged with an offense may be convicted of such offense upon

proof he was complicit in its commission, even though the indictment is stated in terms of

the principal offense and does not mention complicity. State v. Herring, 94 Ohio St.3d

246, 251, 2002–Ohio–796, 762 N.E.2d 940.           R.C. 2923.03(F) adequately notifies a

defendant the jury may be instructed on complicity, even when the charge is drawn in

terms of the principal offense. Id.

       {¶35} We find no error in the trial court’s jury instruction on complicity despite the

fact the indictment in the instant case was stated in terms of the principal offense. The

third assignment of error is overruled.
Tuscarawas County, Case No. 2019 AP 08 0026                                   13


      {¶36} The judgment of the Tuscarawas County Common Pleas Court is affirmed.




By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur
