[Cite as State v. Marshall, 2019-Ohio-1154.]


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

STATE OF OHIO                                        C.A. No.      18CA0054-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KYRE MARSHALL                                        COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   17CR0865

                                 DECISION AND JOURNAL ENTRY

Dated: March 29, 2019



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Kyre Marshall, appeals from her conviction in the Medina

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     One afternoon while they were away from home, there was a break-in at the

apartment of H.B. and her boyfriend. Surveillance video from the apartment building captured a

male gaining access to their apartment from a window while a female watched his progress. It

also captured the female entering the apartment building from the front, remaining inside for less

than two minutes, and exiting just behind the male. After the police viewed the video, they

recognized the male and arrested him. They then identified Marshall as the female in the video

and arrested her as well.

        {¶3}     A grand jury indicted Marshall on one count of burglary in violation of R.C.

2911.12(A)(2).      The matter proceeded to trial with the jury receiving instructions on both
                                                 2


burglary and aiding and abetting. Though the jury found Marshall not guilty of burglary, it

found her guilty of aiding and abetting a burglary. The court sentenced her to two years in

prison.

          {¶4}   Marshall now appeals from her conviction and raises four assignments of error for

our review.

                                                 II.

                                      Assignment of Error I

          The State failed to present sufficient evidence to sustain a conviction against
          Appellant.

          {¶5}   In her first assignment of error, Marshall argues that her conviction is based on

insufficient evidence. We disagree.

          {¶6}   A sufficiency challenge of a criminal conviction presents a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “[T]he relevant inquiry

is 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. Although we

conduct de novo review when considering a sufficiency of the evidence challenge, “we neither

resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions

reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570, C-120751,

2013-Ohio-4775, ¶ 33.

          {¶7}   A person commits burglary if she, “by force, stealth, or deception, * * *

[t]respass[es] in an occupied structure * * * that is a permanent or temporary habitation of any

person when any person other than [her] is present or likely to be present, with purpose to

commit in the habitation any criminal offense.” R.C. 2911.12(A)(2). “To support a conviction
                                                  3


for complicity by aiding and abetting * * *, 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 [she] shared the criminal intent of the principal.” State v.

Johnson, 93 Ohio St.3d 240 (2001), syllabus. “The criminal intent of the aider and abettor ‘can

be inferred from [her] presence, companionship, and conduct * * * before and after the offense is

committed.’” State v. Smith, 9th Dist. Summit No. 25650, 2012-Ohio-794, ¶ 7, quoting In re

T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, ¶ 13. “As with proof of any element of an offense,

complicity may be proved by circumstantial evidence, which has the same probative value as

direct evidence.” Smith at ¶ 7.

           {¶8}   H.B. was at work when her boyfriend called to tell her that someone had broken

into their apartment. She testified that she did not know exactly what had been taken from the

apartment because all of the items that had been stolen belonged to her boyfriend. H.B. had

never met Marshall or Marshall’s friend, C.O., but knew that C.O. was at least an acquaintance

of her boyfriend. H.B. confirmed that, on the day of the burglary, no one else had permission to

enter her apartment. Because her boyfriend was out of town at the time of trial, he did not

testify.

           {¶9}   Officer Josh Wilson responded to the break-in at H.B.’s apartment and spoke with

her boyfriend. The boyfriend initially indicated that the only item taken from the apartment was

$75 in cash. After Officer Wilson inquired about a lingering odor of marijuana, however, the

boyfriend admitted that a black marijuana grinder had also been taken. Officer Wilson testified

that he and several other officers viewed the surveillance video from the apartment building and

were able to identify two individuals of interest. The individuals, one male and one female, were

captured arriving together and walking to the back of the apartment building before the male
                                                4


removed the window screen to H.B.’s apartment and climbed inside. Because one of the officers

believed that the male resembled C.O., Officer Wilson then began looking for him.

       {¶10} Officer Wilson located C.O. later that day. He testified that C.O. was wearing the

same clothing as the male in the surveillance video, but refused to admit that he had been at the

apartment building. The only admission C.O. made to Officer Wilson was that he had been with

Marshall earlier in the day. After speaking with C.O., Officer Wilson brought him to the

Juvenile Detention Center and went in search of Marshall.

       {¶11} Officer Wilson found Marshall later that evening, wearing the same burgundy

sweatshirt as the female in the surveillance video. Marshall admitted that she had seen C.O.

earlier that day, but denied any involvement in a burglary. She told Officer Wilson that she was

already at the apartment building when C.O. arrived. Marshall told the officer that she watched

C.O. remove a window screen and climb into one of the apartments. Meanwhile, she walked to

the front of the apartment building and entered for the purpose of visiting a different apartment.

Marshall gave Officer Wilson the name of the individual whose apartment she had sought out,

and the officer confirmed that an individual by that name lived in the apartment directly across

the hall from H.B. Marshall claimed that she stayed at the apartment building after C.O. left.

When Officer Wilson asked Marshall whether she knew what items C.O. had stolen from the

apartment, however, she responded that he had taken a digital scale and a grinder. Moreover, the

surveillance video from the apartment depicted Marshall leaving the apartment building directly

behind C.O.

       {¶12} C.O. testified at trial, but his testimony differed in several material respects from

the statement he gave Detective Matthew Fitz during his interview at the police station. C.O.

testified that, on the day of the burglary, he was spending time with Marshall when he decided to
                                                  5


go to the apartment of H.B.’s boyfriend to steal his marijuana. He testified that Marshall also

knew the boyfriend, but did not know that he lived at that apartment. He claimed that he never

told Marshall it was the boyfriend’s apartment or that he intended to steal marijuana. He

testified that he told Marshall the apartment belonged to his grandfather and that he wanted to go

inside to use the bathroom and get a snack. According to C.O., Marshall only watched as he

removed the window screen and climbed inside. He denied letting her into the apartment once

inside. He testified that, as he exited the apartment, he saw her descending the stairs inside the

apartment building, so they walked outside together.

          {¶13} While being interviewed at the police station, C.O. told Detective Fitz that it was

Marshall’s idea to break into the boyfriend’s apartment. He told the detective that Marshall

knew where the boyfriend lived and knew he had marijuana. Further, he told the detective that,

once he entered the apartment through the window, he opened its front door to let Marshall

inside.     It was C.O.’s testimony at trial that he lied to Detective Fitz about Marshall’s

involvement because, at the time of his interview, he was scared and under the influence of

drugs.

          {¶14} The State also introduce at trial the surveillance video from H.B.’s apartment

building. The video depicts Marshall and C.O. walking into view together at the back of the

apartment building. The two walk and talk while Marshall points several times in the direction

of the apartment building. The two then walk down the length of the building before returning to

a midway point, whereupon C.O. can be seen removing a window screen. As C.O. climbs

inside, Marshall begins to walk away. She then can be seen at the front of the building, entering

through the main door. Once Marshall enters the building, she remains inside for less than two
                                                6


minutes. The video then depicts C.O. walking out of the building with Marshall following

behind him.

       {¶15} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have found that the State proved, beyond a reasonable doubt, that Marshall aided and

abetted a burglary. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The evidence

presented at trial demonstrated that she was present before, during, and after the burglary. See

Smith, 2012-Ohio-794, at ¶ 7, quoting In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, at ¶ 13.

Although C.O. later retracted his statements, he told the police that he and Marshall went to

H.B.’s apartment because Marshall knew the man who lived there and wanted to steal his

marijuana. The surveillance video showed the two walk the length of the apartment building in

the back before returning to a center point, wherein Marshall kept watch until C.O. entered

through the window. It also later showed Marshall enter the building from the front and exit less

than two minutes later directly behind C.O. C.O. told Detective Fitz that he let Marshall into

H.B.’s apartment once he gained entry, and Marshall was able to tell the police what C.O. had

stolen from the apartment (i.e., a grinder). The State, therefore, set forth evidence from which

the jury reasonably could have concluded that Marshall “supported, assisted, encouraged,

cooperated with, advised, or incited [C.O.] in the commission of the crime, and that [she] shared

[his] criminal intent * * *.” Johnson, 93 Ohio St.3d 240 at syllabus. Marshall has not shown

that her conviction is based on insufficient evidence. Thus, her first assignment of error is

overruled.

                                    Assignment of Error II

       Appellant’s convictions are against the manifest weight of the evidence.
                                                 7


         {¶16} In her second assignment of error, Marshall argues that her conviction is against

the manifest weight of the evidence. For the following reasons, we reject her assignment of

error.

         {¶17} When considering an argument that a criminal conviction is against the manifest

weight standard, this Court is required to

         review the entire record, weigh the evidence and all reasonable inferences,
         consider the credibility of witnesses and determine whether, in resolving conflicts
         in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a

conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit

No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily

against the conviction,” Thompkins at 387.

         {¶18} Although Marshall has quoted the manifest weight standard in her brief, she has

not included any argument or explanation as to why the evidence in this case weighs heavily

against her conviction. See App.R. 16(A)(7). Her analysis consists of several sentences wherein

she asserts that the jury, had it been properly instructed, would have acquitted her due to a lack

of “requisite evidence for a conviction in this case * * *.” She has not challenged any of the

State’s evidence as “unreliable or lacking credibility.” State v. Smith, 9th Dist. Summit No.

27877, 2016-Ohio-7278, ¶ 16.          See also State v. Vicente-Colon, 9th Dist. Lorain No.

09CA009705, 2010-Ohio-6242, ¶ 20 (“[S]ufficiency and manifest weight are two separate,

legally distinct arguments.”). Accordingly, consistent with our precedent, we “will not create or

develop a manifest weight argument on [her] behalf.” State v. Jackson, 9th Dist. Summit No.

28691, 2018-Ohio-1285, ¶ 47. Because Marshall has not presented this Court with any argument
                                                 8


as to why the evidence in this case weighs heavily against her conviction, her second assignment

of error is overruled.

                                    Assignment of Error III

       Appellant was denied a fair trial by the witness’ improper comments while
       testifying.

       {¶19} In her third assignment of error, Marshall argues that the trial court denied her a

fair trial when it improperly permitted two witnesses to testify that she and C.O. had not

answered certain questions truthfully. For the following reasons, we reject her argument.

       {¶20} The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). Thus, this Court generally applies the abuse

of discretion standard when reviewing a trial court’s decision to admit testimony. See State v.

Pitts, 9th Dist. Medina No. 17CA0060-M, 2018-Ohio-3216, ¶ 12. If a defendant fails to object

to the admission of that testimony, however, she forfeits all but plain error on appeal. See State

v. Banks, 9th Dist. Medina No. 16CA0084-M, 2017-Ohio-8777, ¶ 34. Plain error exists only

where there is a deviation from a legal rule, that is obvious, and that affected the appellant’s

substantial rights to the extent that it affected the outcome of the trial. State v. Barnes, 94 Ohio

St.3d 21, 27 (2002). This Court will not construct a plain error argument on an appellant’s

behalf. State v. Hunter, 9th Dist. Medina No. 17CA0069-M, 2018-Ohio-4249, ¶ 32.

       {¶21} Marshall argues that she was denied a fair trial when the trial court permitted

Officer Wilson and Detective Fitz to testify in several respects. During their testimony, the

officers were asked to compare statements that C.O. and Marshall made with footage taken from

the surveillance video at H.B.’s apartment. Marshall argues that it was improper for the court to

let the officers testify, based on those comparisons, that portions of her and C.O.’s statements

were untrue. She points to six specific instances of allegedly improper testimony. Yet, the
                                                9


record reflects that she only objected in one instance. Her failure to object in the remaining five

instances resulted in a forfeiture of her argument for purposes of appeal. See Banks at ¶ 34.

While that forfeiture would not extinguish a claim of plain error, Marshall has not argued plain

error on appeal, and we will not construct an argument on her behalf. See Hunter at ¶ 32. We,

therefore, limit our review to the single instance wherein Marshall objected, and the court

overruled her objection.

       {¶22} During Detective Fitz’ testimony, the following exchange took place:

       [THE PROSECUTOR]: [I]n your training and experience, especially your
       experience in interviewing suspects, do you have any valid or logical explanation
       of why someone who is totally innocent, who did nothing wrong whatsoever,
       would lie to the police?

       [DEFENSE COUNSEL]: Objection, calls for speculation.

       THE COURT: Overruled. You can answer, if you know.

       [DETECTIVE FITZ]: Can you ask it again? I’m sorry.

       [THE PROSECUTOR]: In your training and experience, especially your
       experience, in interviewing suspects, do you have any logical explanation or
       reasonable explanation as to why someone who is totally and completely innocent
       of anything would lie to the police about that incident?

       [DETECTIVE FITZ]: No, I have no reason why they would.

Marshall argues that the court erred by admitting the detective’s testimony because a witness is

not permitted to offer an opinion as to whether another witness is being truthful. She argues that

the veracity of her and C.O.’s statements was strictly a matter for the jury to decide and, by

offering his opinion on that matter, the detective encroached upon the province of the jury.

       {¶23} Upon review, this Court rejects Marshall’s argument.             Although Marshall

objected during Detective Fitz’ testimony, she only did so on the basis that the prosecutor’s

question called for speculation. She did not object on the basis she now asserts, so her argument

is not properly before this Court. See State v. Jamison, 9th Dist. Summit No. 27664, 2016-Ohio-
                                                10


5122, ¶ 10 (“[A]n appellant may not raise an argument for the first time on appeal.”). Moreover,

even assuming that the State’s question was improper, Marshall has not demonstrated resulting

prejudice. See State v. Greene, 9th Dist. Summit No. 28660, 2018-Ohio-3032, ¶ 15. The State

produced evidence that Marshall was present before, during, and after the burglary, and

encouraged C.O. to steal marijuana from H.B.’s boyfriend. Marshall has not shown that, but for

the aforementioned exchange between the prosecutor and Detective Fitz, the jury would not have

convicted her. See id. Accordingly, her third assignment of error is overruled.

                                   Assignment of Error IV

        The trial court denied Appellant’s right to a fair trial by not giving a
        requested jury instruction on aiding and abetting which should have
        included that Defendant’s conduct as an accessory after the fact is not
        criminal under Ohio laws, and cannot constitute criminal conduct.

        {¶24} In her fourth assignment of error, Marshall argues that the trial court abused its

discretion when it refused to issue the jury one of her proposed jury instructions. We disagree.

        {¶25} “Requested jury instructions should ordinarily be given if they are correct

statements of law, if they are applicable to the facts in the case, and if reasonable minds might

reach the conclusion sought by the requested instruction.” State v. Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, ¶ 240. “This Court reviews a trial court’s decision to give or not give jury

instructions for an abuse of discretion under the particular facts and circumstances of the case.”

State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 68. “‘A trial court’s failure to

give a proposed jury instruction is only reversible error if the defendant demonstrates that the

trial court abused its discretion, and that the defendant was prejudiced by the court’s refusal to

give the proposed instruction.’” State v. Sanders, 9th Dist. Summit No. 24654, 2009-Ohio-5537,

¶ 45, quoting Azbell v. Newark Grp., Inc., 5th Dist. Fairfield No. 07 CA 00001, 2008-Ohio-2639,

¶ 52.
                                                 11


       {¶26} Marshall argues that the trial court erred when it refused to issue the jury an

additional instruction on aiding and abetting. The instruction was that, “[u]nder Ohio law, a

defendant’s conduct as an accessory after the fact is not criminal, and cannot constitute criminal

conduct.” According to Marshall, the jury reasonably could have concluded that C.O. committed

a burglary without her knowledge and that she only learned of it after the fact. She argues that

the jury still could have convicted her on that basis, however, because it “never knew the correct

standard and the correct law.” She argues that an accessory after the fact instruction would have

changed the result in this matter because the jurors would have understood that her knowledge

and/or conduct, after the fact, could not support a charge of aiding and abetting.

       {¶27} The record reflects that Marshall requested more than one additional instruction

on aiding and abetting, and the trial court agreed to issue at least one of those instructions. It

refused to issue the accessory after the fact instruction because it believed that the other

instructions adequately covered the entire concept of aiding and abetting.           In rejecting the

instruction, the court also noted that it did not want to delve “into almost speculative issues.”

       {¶28} Upon review, we cannot conclude that the trial court abused its discretion when it

refused to issue the jury the accessory after the fact instruction. The court issued detailed

instructions on aiding and abetting. Those instructions provided as follows:

       The Defendant’s charged with aiding and abetting another in the offense of
       burglary. Before you can find this Defendant guilty of aiding and abetting
       another in the offense of burglary, you must find beyond a reasonable doubt that
       on or about the 26th day of September, 2017, and in Medina County, Ohio, the
       Defendant aided and/or abetted another, [C.O.], in committing the offense of
       burglary.

       Before you can find the Defendant guilty of complicity by aiding and abetting,
       you must find beyond a reasonable doubt that this Defendant supported,
       encouraged, assisted, cooperated with, advised, or incited the principal offender,
       [C.O.], in the commission of the offense and that the Defendant shared his
       criminal intent -- shared the criminal intent of the principal offender.
                                               12


       Such intent may be inferred from the circumstances surrounding the offense, but
       [is] not limited to the presence, companionship, [or] conduct before and after the
       offense was committed. The mere presence of the Defendant at the scene of the
       offense is not sufficient to prove in and of itself that the Defendant was an aider
       and abettor. Witnessing the crime or mere approval of the offense, even if the
       Defendant had guilty knowledge of the offense, does not by itself make the
       Defendant an aider or aider and abettor.

Thus, the court specifically advised the jury that a guilty verdict for aiding and abetting would

require more than Marshall’s mere presence, mere witnessing, or mere approval of C.O.’s crime.

See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 138-144. The court instructed the

jury that a guilty verdict had to be based on Marshall’s having “supported, encouraged, assisted,

cooperated with, advised, or incited” C.O.’s conduct while sharing his criminal intent. See

Johnson, 93 Ohio St.3d 240 at syllabus. Accordingly, the record does not support Marshall’s

argument that the jury “never knew the correct standard and the correct law.”

       {¶29} The record reflects that the trial court “properly charged the jury upon Ohio law

relative to aider and abettor, and was under no obligation to give the requested charge.” State v.

Carver, 30 Ohio St.2d 280, 290 (1972). Upon review, we must conclude that the court did not

act unreasonably, unconscionably, or arbitrarily in refusing to issue the jury the accessory after

the fact instruction. See Calise, 2012-Ohio-4797, at ¶ 68. Thus, Marshall’s fourth assignment of

error is overruled.

                                               III.

       {¶30} Marshall’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
                                                13




       There were reasonable grounds for this appeal.

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

Pleas, County of Medina, 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(C). 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 Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

THOMAS REIN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
