[Cite as State v. Horton, 2014-Ohio-2785.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                    No. 13AP-855
v.                                                 :           (C.P.C. No. 12CR-10-5069)

Markee Horton,                                     :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :


                                             D E C I S I O N

                                      Rendered on June 26, 2014


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

                 Barnhart Law Office, LLC, and Robert Barnhart, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Defendant-appellant, Markee Horton ("appellant"), appeals from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas pursuant to jury verdicts finding him guilty of aggravated murder and tampering
with evidence. Because we conclude that the trial court did not commit plain error with
respect to the verdict forms or jury instructions related to the charge of aggravated
murder, and that appellant was not prejudiced by his trial counsel's failure to object to the
verdict forms or jury instructions, we affirm.
        {¶ 2} This case arises from the killing of Charles Rogers ("Rogers") on August 18,
2012. Lindsay Jennings ("Jennings"), who was dating appellant at the time, testified at
trial that she and appellant had plans to go out together on August 18, 2012. When
No. 13AP-855                                                                                 2


appellant arrived at Jennings' home, he asked Jennings to drive him to his mother's house
in his car, a red Mustang. During the drive, appellant indicated that, earlier in the day, he
had been robbed of prescription drugs that he planned to sell. Jennings testified that after
reaching his mother's house, appellant spoke with his brother, Rufus Horton ("Rufus"),
and retrieved a handgun. Appellant then instructed Jennings to drive to Mount Vernon
Avenue. Jennings stated that Rufus followed in a black car. During the drive, appellant
called his nephew and asked whether Rogers still lived near Mount Vernon Avenue and
22nd Street.
       {¶ 3} Jennings testified that, after reaching Rogers' home, where Rogers and his
girlfriend, Tonya Robinson ("Robinson") were on the porch, both appellant and Rufus
exited their vehicles and went onto the porch. After appellant and Rufus arrived, Rogers
pushed Robinson into the house. Jennings indicated that both appellant and Rufus made
statements about Rogers having stolen from appellant. Jennings testified that Rufus put a
gun to Rogers' head and pulled the trigger, but the gun would not fire. Appellant then
punched Rogers in the face, and Rogers ran off the porch. Jennings stated that appellant
fired a single shot at Rogers' back, and Rogers fell to the ground. Appellant then got back
into the red Mustang and indicated that he had just shot Rogers. He directed Jennings to
drive back to her house. Jennings testified that appellant later stripped the red Mustang
and abandoned it. She further testified that, four days after the shooting, appellant had
her drive him to a park, where he threw the gun into a pond.
       {¶ 4} Two other eyewitnesses also testified at trial regarding the shooting.
Robinson, who knew both appellant and Rufus prior to the incident, testified that Rufus,
not appellant, fired the shot that struck Rogers in the back. Christina Ross ("Ross"), who
was in the area to drop off her niece, testified that she saw a red car and a black car pull up
to Rogers' house, with one man getting out of each car. Ross did not specifically identify
appellant or Rufus but testified that the man who had gotten out of the red car attempted
to shoot Rogers in the head, but the gun would not fire. She further testified that the other
man, who had been in the black car, shot Rogers in the back.
       {¶ 5} Following a jury trial, appellant was found guilty of aggravated murder with
a firearm specification and tampering with evidence. The trial court entered a judgment
sentencing appellant to a total term of imprisonment of 20 years to life.
No. 13AP-855                                                                                3


       {¶ 6} Appellant appeals from the trial court's judgment, assigning three errors for
this court's review:
              1. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN
              IT DID NOT PROVIDE THE JURY WITH SEPARATE
              VERDICT FORMS FOR AGGRAVATED MURDER AND
              COMPLICITY TO AGGRAVATED MURDER.

              2. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN
              IT DID NOT INSTRUCT THE JURY THAT IT MUST BE
              UNANIMOUS AS TO WHETHER THE DEFENDANT WAS
              THE PRINCIPAL OFFENDER OR COMPLICIT.

              3. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
              COUNSEL.

       {¶ 7} In his first assignment of error, appellant asserts that the trial court erred by
not providing the jury with separate verdict forms for finding appellant guilty of
aggravated murder as the principal offender or as an accomplice. At the close of trial, the
state argued that appellant could be convicted of aggravated murder as the principal
offender if the jury concluded that he shot Rogers, or as an aider and abettor who was
complicit in the crime if the jury concluded that Rufus shot Rogers. The trial court
instructed the jury that it could find appellant guilty as a principal offender or as an aider
and abettor to an offense. With respect to the charge of aggravated murder, the jury was
presented with three verdict forms: (1) guilty of aggravated murder, (2) not guilty of
aggravated murder but guilty of the lesser-included offense of murder, and (3) not guilty
of aggravated murder or the lesser-included offense of murder. Appellant's counsel did
not object to the jury verdict forms; therefore, we apply the plain-error standard. State v.
Jackson, 92 Ohio St.3d 436, 444 (2001). "Plain error does not exist unless it can be said
that but for the error, the outcome of the proceedings would clearly have been otherwise."
State v. Todd, 10th Dist. No. 06AP-1208, 2007-Ohio-4307, ¶ 22.
       {¶ 8} Under the principle of complicity or accomplice liability, an individual may
be found guilty if he solicits, aids, abets or conspires with another individual to commit an
offense and shares the criminal intent of an individual who commits the principal offense.
State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus; State v. Moore, 10th Dist. No. 2010-
Ohio-4322, ¶ 17. The accomplice's intent may be inferred from the circumstances
No. 13AP-855                                                                               4


surrounding the crime. Johnson at syllabus. The prohibition against complicity is codified
in R.C. 2923.03. "A charge of complicity may be stated in terms of [R.C. 2923.03], or in
terms of the principal offense." R.C. 2923.03(F). "Thus, a defendant charged with an
offense may be convicted of that offense upon proof that 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).
       {¶ 9} Appellant argues that aggravated murder and complicity to aggravated
murder are different crimes and that, therefore, the trial court committed plain error by
not providing separate verdict forms allowing the jury to find appellant guilty of
aggravated murder as the principal offender or as an accomplice. Appellant claims that
the single verdict form allowing the jury to find appellant guilty of aggravated murder,
without specifying whether he was the principal offender or an aider and abettor,
permitted the jury to return a general verdict and violated the requirement of a
unanimous jury verdict under Crim.R. 31(A).
       {¶ 10} Other appellate districts have concluded in similar cases that a trial court is
not required to provide separate jury verdict forms for the principal offense and
complicity to that offense. In State v. Lewis, 11th Dist. No. 2012-L-074, 2013-Ohio-3974,
the Eleventh District Court of Appeals concluded that, because a charge of complicity may
be stated in terms of violation of R.C. 2923.03 or in terms of the principal offense, the
failure to require the jury to distinguish on the verdict form whether the defendant was
found guilty as the principal offender or as an aider and abettor did not constitute plain
error. Id. at ¶ 83-84. Similarly, both the Sixth and Seventh District Courts of Appeals have
concluded that it was not plain error to provide a single verdict form, rather than separate
forms, to find a defendant guilty as a principal offender or as an accomplice. See State v.
Alexander, 6th Dist. No. WD-02-047, 2003-Ohio-6969, ¶ 67-70; State v. Beshara, 7th
Dist. No. 07 MA 37, 2009-Ohio-6529, ¶ 74-77. We reach the same conclusion. As
explained above, a charge of complicity may be stated as a violation of R.C. 2923.03 or in
terms of the principal offense. In this case, appellant was indicted on a charge of
aggravated murder. Although there was disputed evidence at trial as to whether appellant
or Rufus fired the shot that killed Rogers, there was additional evidence that whichever of
the brothers did not fire the fatal shot had attempted to shoot Rogers in the head but
No. 13AP-855                                                                                5


failed because the gun would not fire. Moreover, there was testimony that appellant went
to his mother's house to retrieve a gun and spoke with Rufus immediately before they
both went to Rogers' house. This evidence would allow the jury to conclude that appellant
either committed the principal offense of aggravated murder or aided and abetted his
brother in committing the offense. Under these circumstances, we cannot conclude that
the trial court's failure to provide separate jury verdict forms for aggravated murder and
complicity to aggravated murder constitutes plain error such that the outcome of the
proceedings would clearly have been otherwise if separate forms had been provided. See
Todd at ¶ 22.
       {¶ 11} Accordingly, we overrule appellant's first assignment of error.
       {¶ 12} In his second assignment of error, appellant argues that the trial court erred
by failing to instruct the jury that it was required to reach a unanimous verdict as to
whether appellant was guilty of aggravated murder as the principal offender or as an aider
and abettor. Appellant argues that the instructions violated the requirement of a
unanimous jury verdict pursuant to Crim.R. 31(A). Because appellant did not object to the
jury instructions, we also review this assignment for plain error. Jackson at 444.
       {¶ 13} The Supreme Court of Ohio and this court have previously held in similar
cases that a trial court did not commit plain error by not instructing the jury that it was
required to reach a unanimous verdict as to whether the defendant was the principal
offender or an aider and abettor. State v. Stojetz, 84 Ohio St.3d 452, 458-59 (1999); State
v. Husband, 10th Dist. No. 02AP-1097, 2003-Ohio-2279, ¶ 37-46. In Stojetz, the Supreme
Court concluded that the trial court did not commit plain error by failing to specifically
instruct the jury that it was required to reach a unanimous verdict as to whether the
defendant was the principal offender or an aider and abettor to the crime of aggravated
murder. Id. at 458. The Supreme Court noted that the defendant could have been
convicted as a principal offender under R.C. 2903.01(A) or as an aider and abettor under
R.C. 2923.03(A). Id. Similarly, in Husband, this court rejected a claim that the trial court
erred by failing to instruct the jury separately on principal and accomplice liability for the
charge of felonious assault. Id. at ¶ 37. The court found that there was sufficient evidence
to conclude that the defendant acted as the principal offender in the felonious assault and
that he also acted with the necessary culpability in aiding and abetting others in inflicting
No. 13AP-855                                                                               6


serious physical harm on the victim. Id. at ¶ 45. Therefore, no plain error existed with
respect to the jury instructions. Id. See also State v. Kajoshaj, 8th Dist. No. 76857
(Aug. 10, 2000) (holding that trial court did not err by not instructing jury that
unanimous verdict was required to convict defendant as principal offender or as aider and
abettor); State v. Musgrave, 5th Dist. No. 98CA10 (Apr. 24, 2000) (holding that trial
court did not err by not instructing jury that they must unanimously agree on whether
defendant was the principal offender or an aider and abettor).
       {¶ 14} In this case, as in Stojetz, appellant was charged with aggravated murder in
violation of R.C. 2903.01. There was conflicting evidence as to whether appellant fired the
shot that killed Rogers. However, uncontroverted testimony from Jennings demonstrated
that appellant went to his mother's house to speak with Rufus and retrieve a gun before
traveling to Rogers' house. This evidence, if believed, demonstrated that, if appellant was
not the principal offender, he aided and abetted his brother in the commission of the
crime. Therefore, this is not a case where, but for the alleged error, the outcome of the
proceedings would clearly have been different. Todd at ¶ 22. Moreover, although the trial
court did not expressly instruct the jury that it was required to be unanimous as to
whether appellant was the principal offender or an aider and abettor, the court generally
instructed the jury that it was required to reach a unanimous verdict on each charge. See
State v. Price, 8th Dist. No. 90308, 2009-Ohio-3503, ¶ 20 ("In his seventh proposed
assignment of error, Price argues that the trial court erred because the instructions did
not require the jury to agree unanimously on alternative theories of a principal offender or
an aider and abettor. Nevertheless, the record is replete with the trial court's instructions
to the jury that they were required to reach a unanimous verdict."). Under these
circumstances, the lack of a specific instruction that the jury must reach a unanimous
verdict as to whether appellant was the principal offender or an aider and abettor does not
constitute plain error.
       {¶ 15} Accordingly, we overrule appellant's second assignment of error.
       {¶ 16} In his third assignment of error, appellant argues that his trial counsel
provided ineffective assistance by failing to object to the verdict forms and the jury
instructions. The two-prong test for ineffective assistance of counsel requires a defendant
to prove (1) that counsel's performance was deficient, and (2) that the deficient
No. 13AP-855                                                                                7


performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984). "The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result." Id. at 686.
       {¶ 17} Assuming for purposes of analysis that appellant could establish deficient
performance by his counsel, he still must demonstrate that it resulted in prejudice to him.
"To show that a defendant has been prejudiced by counsel's deficient performance, the
defendant must prove that there exists a reasonable probability that, were it not for
counsel's errors, the result of the trial would have been different." State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph three of the syllabus. " 'A reasonable probability is a
probability sufficient to undermine confidence in the outcome.' " Id. at 142, quoting
Strickland at 694.
       {¶ 18} The Eighth District Court of Appeals considered a similar issue in Price,
where an appellant sought to reopen his appeal, arguing, in part, that his appellate
counsel provided ineffective assistance by failing to raise an assignment of error claiming
that the trial court's instructions did not require the jury to agree unanimously as to
whether he was the principal offender or an aider and abettor. Price at ¶ 20. The Eighth
District rejected this argument, noting that the record contained numerous instructions to
the jury that they were required to reach a unanimous verdict. Further, at the appellant's
request, the trial court had polled the jury and confirmed that their verdict was
unanimous. Id. The court reasoned that the appellant was not prejudiced by his appellate
counsel's failure to raise this issue. Id. See also State v. Scott, 8th Dist. No. 81235, 2003-
Ohio-5374, ¶ 27 (concluding that counsel did not provide ineffective assistance by failing
to object to lack of unanimity or complicity instructions because neither instruction was
required and the outcome of the trial would have been the same).
       {¶ 19} Appellant argues that, if his trial counsel had objected to the verdict forms
or jury instructions, there was a reasonable probability that at least one juror would have
found appellant not guilty or been unable to reach a verdict, due to the conflicting
testimony about the identity of the shooter. However, as discussed above, the testimony
was clear that one assailant attempted to shoot Rogers in the head before the other
individual shot him in the back. Further, the testimony was also clear that appellant
No. 13AP-855                                                                               8


retrieved a gun and spoke with his brother prior to going to Rogers' house. The evidence
presented at trial, taken as a whole, supported a conclusion that appellant was guilty of
aggravated murder, either as the principal offender or as an accomplice. In this case, as in
Price, the trial court polled the jury at appellant's request, confirming that the jury's
verdict was unanimous. Appellant has failed to demonstrate a reasonable probability that
the outcome of the trial would have been different if his counsel had objected to the
verdict forms or the jury instructions. Thus, we reject appellant's ineffective assistance of
counsel claim.
       {¶ 20} Accordingly, we overrule appellant's third assignment of error.
       {¶ 21} For the foregoing reasons, we overrule appellant's three assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                            TYACK and O'GRADY, JJ., concur.
                                   _______________
