[Cite as State v. Simpson, 2011-Ohio-2771.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.      25363

         Appellee

         v.                                            APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CHRISTOPHER B. SIMPSON                                 COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
         Appellant                                     CASE No.   CR 09 03 0964 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: June 8, 2011



         MOORE, Judge.

         {¶1}    Appellant, Christopher B. Simpson, appeals the judgment of the Summit County

Court of Common Pleas. This Court reverses.

                                                  I.

         {¶2}    In the early hours of February 1, 2010, Patrick Sullivan was viciously attacked in

his bedroom. Jen Mitchell owned the house at 1556 Tonawanda Ave. where she lived with her

boyfriend, Justin, and the appellant, Christopher Simpson. Sullivan lived in the basement of the

house.

         {¶3}    The victim testified that in the afternoon of January 31, 2010, he had been playing

with some “buckshot bombs,” which were makeshift firecrackers that he had made. He claimed

that because they had no “BBs,” they could not detonate.      Simpson was allegedly present at this

time, but did not object to this activity. On the evening of January 31, 2010, Mitchell, Justin,

Simpson, Simpson’s girlfriend, Theresa, and Simpson’s cousin, Andrew Hackney, were
                                               2


“hanging out” and drinking beer at the house. At approximately 2:00 a.m. on February 1, 2010,

the victim was alone in the basement playing computer games in his bedroom. He saw Simpson

and Hackney come down the stairs with co-defendant Donald Frano and his friend Nicholas

Moran. The victim knew Frano and Moran lived together on Schiller Street, along with Matt

Olls. According to the victim, he knew Frano and Moran casually, but they were primarily

friends of Simpson.

       {¶4}   The victim testified that Simpson was visibly angry and accused the victim of

“trying to blow everyone up and kill everybody” with the buckshot bombs, and further accused

the victim of taking one of his “Twiztid” charms. When the victim tried to explain things to

Simpson, he hit the victim over the head with what appeared to be the handle of a cue stick. The

victim fell back and “everything started to fade to black.” He slumped back on the bed and saw

Moran and Frano going through his possessions in search of the Twiztid charm or “for stuff to

steal.” Hackney picked up a gallon jug of urine and poured it over the victim, which brought

him back to consciousness. The victim did not remember how it came to pass, but he ended up

bent over while something was inserted into his rectum. He was unsure of who did this to him.

After this was over, the victim stood up and attempted to urinate into a gallon jug, but was

unable to do so, so he lay back down on the bed. He was subsequently awakened by Frano and

Moran, who took him to City Hospital.

       {¶5}   The victim spent twelve days in the hospital, and was then transferred to a nursing

home. He sustained multiple skull fractures, a broken nose, a torn rectum and perforated

intestine, and several minor injuries. He wore a colostomy bag for four months while his rectal

and intestinal injuries healed. While at the nursing home, the victim called home and spoke with
                                                3


both Mitchell and Simpson. He claimed that Simpson seemed “a little bit foggy on the whole

thing, himself.”

       {¶6}    Moran testified that he and Frano received a call from Simpson around 2:00 a.m.

on February 1, 2010, asking them to come over to help with something. When they arrived at

the house at 3:00 a.m., Simpson, Theresa, Mitchell, Justin, and Hackney were at the residence.

Simpson looked angry and agitated. He told them about the buckshot bombs and how the victim

had thrown some outside, and even one in the house. After ten to fifteen minutes, Simpson stood

up and said he was going downstairs to beat up the victim. Frano, Moran, and Hackney followed

him to the basement.

       {¶7}    Simpson challenged the victim to a fight, but the victim did not want to engage in

a fight. Simpson hit the victim in the head with a pool ball stuffed in a sock. Simpson lifted the

victim to his feet and demanded that he fight. He pushed the victim toward Hackney, who

started punching him in the face. Frano threw the victim back on the bed, and Simpson hit him

again with the pool ball. Simpson told Hackney to pour the jug of urine on him, which he did.

Simpson and Hackney continued to punch and kick the victim. Moran told Frano, who was no

longer participating in the altercation, that they needed to get the victim to the hospital. While

they were gathering up clothes for the victim, Moran heard Simpson say, “This one’s for you,

Don,” and saw Simpson insert a mop or a broom stick into the victim’s rectum.

       {¶8}    Moran testified that the entire event, from their arrival to their departure to the

hospital, was approximately one hour and fifteen to thirty minutes. Simpson told Moran and

Frano to take the victim to a bar, BG Breeze, so that it would look like someone had jumped him.

Instead, they drove him to City Hospital. Moran testified that they dropped the victim off about

thirty to forty feet from the emergency door because Moran was driving and was intoxicated and
                                                4


afraid of getting in trouble. When Moran was first interviewed by Detective Bell, he claimed

that he was not at the house when any of the events occurred. At trial, Moran denied any

involvement in the rape or the felonious assault. He was not charged in the case.

         {¶9}   The victim arrived at the emergency room at approximately 7:00 a.m. During

emergency intake, the victim was unable to provide any details about what happened to him,

other than to say he was “beat up.” Valorie Prulhiere, a registered nurse and coordinator of the

Development Options for Violent Emergencies program interviewed the victim on February 5,

2010. The victim identified his assailants as “Nick, Don, and Matt [Olls].” He believed that

they wanted to take his possessions. Prulhiere testified that in answering these questions the

victim was clear, sure, and steady.

         {¶10} Detective Bell interviewed the victim in the hospital on February 11, 2010. At

that time, the victim recalled that Simpson, Frano, Moran and Hackney were in the basement.

He told the detective that after being hit by “someone,” he blacked out and did not remember

anything that happened afterward. In addition, he told the detective that nothing should happen

to Simpson because he did not do anything, and that Simpson never struck him. He reiterated

that Simpson did nothing, and that Frano and Moran were the only assailants.

         {¶11} Detective Bell interviewed Simpson on February 5, 2010. Simpson told the

detective that he did not go into the basement that night, and that the victim was downstairs with

the two others he only knew as the “Schiller boys.” They had come over to the house with two

thirty-packs of beer, and spent hours downstairs playing loud music. At one point, Simpson

heard a “commotion” in the basement. He then saw the victim leave the house with Moran and

Frano.
                                               5


       {¶12} Detective Bell obtained permission from Simpson to go down to the basement,

where he saw that the floor was mopped clean, and emitted a strong odor of bleach. Simpson

explained to Detective Bell that the basement floor was cleaned of the spilled urine because they

anticipated an inspection of the house by the health department. The detective found several

blood splatters on the basement wall near the victim’s bed, and DNA tests showed that they were

consistent with the victim’s DNA.

       {¶13} On April 16, 2009, Simpson was indicted by a grand jury on one count of rape in

violation of 2907.02(A)(2), a felony of the first degree, one count of felonious assault in

violation of R.C. 2903.11(A)(1)/(2), a felony of the second degree, and one count of tampering

with evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree. On April 30,

2009, Simpson entered a plea of not guilty and the matter proceeded to a jury trial on February

18, 2010. Co-defendant Frano entered a plea of guilty and testified against Simpson at trial. On

February 23, 2010, the jury found Simpson guilty of felonious assault and tampering with the

evidence. He was found not guilty of rape. On March 26, 2010, Simpson was sentenced to four

years of incarceration for felonious assault, and one year of incarceration for tampering with

evidence, ordered to run concurrently.

       {¶14} Simpson timely filed a notice of appeal. He raises three assignments of error for

our review.

                                               II.

                                ASSIGNMENT OF ERROR I

       “THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION
       TO THE JURY ON COMPLICITY IN 1) GIVING AN ERRONEOUS
       INSTRUCTION AS TO WHAT CONDUCT CONSTITUTES COMPLICITY; 2)
       FAILING TO GIVE THE JURY THE REQUIRED CAUTIONARY
       INSTRUCTION REGARDING THE TESTIMONY OF AN ALLEGED
       ACCOMPLICE UNDER R.C.[]2923.03(D); AND 3) FAILING TO IDENTIFY
                                                 6


        NICHOLAS MORAN AS A SECOND POTENTIAL ACCOMPLICE IN ITS
        INSTRUCTION.”

        {¶15} Simpson contends that the trial court committed plain error in its jury instructions

because it failed to give the cautionary instruction regarding the testimony of an alleged

accomplice required under R.C. 2923.03(D). We agree.

        {¶16} Pursuant to Crim.R. 52(B), a plain error that affects a substantial right may be

noticed by an appellate court despite not being brought to the attention of the trial court.

However, notice of a plain error is taken with the utmost caution and only to prevent a manifest

miscarriage of justice. State v. Bray, 9th Dist. No. 03CA008241, 2004-Ohio-1067, at ¶12.

Therefore, we will not reverse the trial court decision unless it has been established that the trial

court outcome would have clearly been different but for the alleged error. Id.

        {¶17} When an accomplice testifies against a defendant, R.C. 2923.03(D) requires that

the trial court instruct the jury as follows:

        “‘The testimony of an accomplice does not become inadmissible because of his
        complicity, moral turpitude, or self-interest, but the admitted or claimed
        complicity of a witness may affect his credibility and make his testimony subject
        to grave suspicion, and require that it be weighed with great caution.

        “It is for you, as jurors, in the light of all the facts presented to you from the
        witness stand, to evaluate such testimony and to determine its quality and worth
        or its lack of quality and worth.’”

        {¶18} It is undisputed that the trial court failed to give the R.C. 2923.03(D) instruction.

It is also undisputed that no objection was made by trial counsel to the absence of this instruction

and that plain error is the appropriate standard. The parties disagree on the impact of the

omission of the jury instruction. Simpson asserts that the failure of the trial court to include the

cautionary instruction when it had an affirmative duty to do so was “clearly prejudicial” and

“therefore substantially affected the outcome of the trial.” The State asserts that the alleged
                                                   7


accomplice’s testimony was corroborated and, therefore, the erroneous instruction was not plain

error.

         {¶19} When determining whether the trial court committed plain error by failing to

comply with R.C. 2923.03(D), this Court examines several factors. State v. Davis, 9th Dist. No.

22395, 2005-Ohio-4083, at ¶16.         First, we look at the scope of cross-examination of the

accomplice that was permitted by the trial court. Id. Second, we review whether the details of

the accomplice’s plea agreement were presented to the jury. Id. Third, we examine whether the

jury instructions given contain much of the substance mandated by R.C. 2923.03(D).            Id.

Finally, we look to whether the accomplice’s testimony was favorable to the defendant,

justifying the failure to request the instruction as a tactical decision. Id.

         {¶20} Here, it appears defense counsel was given wide latitude during cross-

examination of the accomplice, Frano.           Defense counsel questioned portions of Frano’s

testimony that were inconsistent with that of the victim and Moran. He also questioned whether

Frano was fabricating the events or if he had discussed the events with Moran. He further

questioned how Frano was aware of events that had occurred outside of his presence. This Court

previously determined, in Davis, that the appellant was not given wide latitude during cross-

examination because on repeated occasions, the State’s objections were sustained when defense

counsel attempted to attack the accomplice’s credibility. Davis at ¶17. Here, however, defense

counsel had sufficient opportunity to cross-examine Frano.

         {¶21} In addition, the details of Frano’s plea agreement were presented to the jury. The

State began its direct examination by addressing the fact that Frano was also charged in the case

with felonious assault and rape. Frano explained that he pled guilty to one count of felonious

assault and the rape charge was dismissed in exchange for his testimony against Simpson. There
                                                8


was no agreement reached as to the terms of Frano’s sentence and, on the date of the trial, he had

not yet been sentenced.

       {¶22} In its instruction, the trial court gave the following instruction regarding Frano’s

testimony:

       “You have heard testimony from Donald Frano II, another person who pleaded
       guilty to a portion of the crimes charged in this case and is said to be an
       accomplice. An accomplice is one who knowingly joins another in the
       commission of a crime. Whether Donald Frano II was an accomplice and the
       weight to give his testimony are matters for you to determine.”

       {¶23} The trial court previously gave the following instruction regarding credibility:

       “To weigh the evidence, you must consider the credibility of the witnesses. You
       will apply the tests of truthfulness which you apply in your daily lives.

       “These tests include the appearance of each witness upon the stand; his/her
       manner of testifying; the reasonableness of the testimony; the opportunity he/she
       had to see, hear and know the things concerning which he/she testified; his/her
       accuracy of memory; frankness or lack of it; intelligence; interest and bias, if any;
       together with all the facts and circumstances surrounding the testimony.
       Applying these tests, you will assign to the testimony of each witness such weight
       as you deem proper.

       “You are not required to believe the testimony of any witness simply because he
       or she was under oath. You may believe or disbelieve all or any part of the
       testimony of any witness. It is your province to determine what testimony is
       worthy of belief and what testimony is not worthy of belief.”

       {¶24} The parties agree that the jury instructions did not contain the required warning

that the accomplice’s testimony be viewed with “grave suspicion” and “great caution.” R.C.

2923.03(D). Rather, the jury was instructed to consider Frano’s credibility in the identical

manner it judged the testimony of all other witnesses.

       {¶25} Finally, as in Davis, the testimony offered by Frano is distinguishable from the

testimony in Wynn and Banaag because the testimony cannot be viewed as favorable to

Simpson. Davis at ¶20; State v. Wynn (Apr. 28, 1999), 9th Dist. No. 97CA006968; State v.

Banaag (Jan. 26, 2000), 9th Dist. No. 98CA0033.
                                                9


        {¶26} Frano testified that Simpson called him at 2:00 a.m. on the day in question and

offered Frano a bag of weed to come over and help him with something.               Simpson was

apparently upset with the victim, and Frano suspected that he was going to watch the two fight.

Frano testified that he was intoxicated and had been smoking marijuana. Frano went downstairs

to the victim’s room with Simpson, Moran and Simpson’s cousin, Hackney. At Simpson’s

command, and because he was scared of Simpson, Frano kicked the victim in the shoulder.

After this, Frano stepped back and observed Simpson beating the victim “with an 8-ball in a

sock.” After striking him several times, Simpson stood the victim up to fight Hackney, who

struck him several more times. At this point, the victim was unconscious on the floor. Simpson

and Hackney began dragging the victim around on the floor, breaking his belongings, and

pouring urine on the victim.

        {¶27} Frano further testified that the victim’s clothes were torn, so he began looking for

clothes to dress him and take him to the hospital. While doing so, he observed Simpson pull a

broomstick out of the victim’s anus. Simpson then said, “This one’s for you, Don.” This was

apparently in reference to a practical joke played on Frano in which someone had “stuck a beer

bottle in between [his] butt cheeks and took a picture” of it. Frano and Moran helped the victim

get dressed and put him in Frano’s car. Simpson told the two to drop him off in front of a bar so

that it would look like he had been jumped. Instead, Frano and Moran dropped the victim off in

front of the hospital.

        {¶28} While the victim did testify at trial regarding the events in question, on two

previous occasions he told both the detective and hospital personnel that Moran and Frano were

responsible for the attack and that Simpson was not involved. As such, there was not sufficient

corroborative evidence to support Simpson’s conviction. Without the required jury instruction, a
                                                10


failure to properly weigh the accomplice’s testimony would have a significant impact in

assessing Simpson’s guilt. See State v. Crawford, 10th Dist. No. 01AP-1428, 2003-Ohio-1447.

Accordingly, we find plain error in the trial court’s failure to give the mandatory jury instruction

on accomplice testimony under R.C. 2923.03(D).           Simpson’s first assignment of error is

sustained.

                                ASSIGNMENT OF ERROR II

       “[] SIMPSON WAS RENDERED INEFFECTIVE ASSISTANCE OF DEFENSE
       COUNSEL AT TRIAL.”

                                ASSIGNMENT OF ERROR III

       “[SIMPSON’S] CONVICTIONS FOR FELONIOUS ASSAULT AND
       TAMPERING WITH EVIDENCE WERE AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.”

       {¶29} Given this Court’s resolution of Simpson’s first assignment of error, Simpson’s

remaining assignments of error are moot, and this Court declines to address them. See App.R.

12(A)(1)(c).

                                                III.

       {¶30} Simpson’s first assignment of error is sustained.              Simpson’s remaining

assignments of error are rendered moot and we decline to address them. The judgment of the

Summit County Court of Common Pleas is reversed and the cause remanded for further

proceedings consistent with this opinion.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.
                                                11


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.


                                                     CARLA MOORE
                                                     FOR THE COURT


DICKINSON, J.
BELFANCE, P. J.
CONCUR


APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
