[Cite as State v. Shorter, 2014-Ohio-581.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )
        PLAINTIFF-APPELLEE,                       )
                                                  )             CASE NO. 12 MA 55
V.                                                )
                                                  )                   OPINION
JEFFREY SHORTER,                                  )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Court of Common
                                                  Pleas of Mahoning County, Ohio
                                                  Case No. 10CR35A

JUDGMENT:                                         Reversed
                                                  Charges Dismissed

APPEARANCES:
For Plaintiff-Appellee                            Paul Gains
                                                  Prosecutor
                                                  Ralph M. Rivera
                                                  Assistant Prosecutor
                                                  21 W. Boardman St., 6th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant                           Attorney Jan R. Mostov
                                                  4822 Market St., Suite 250
                                                  Boardman, Ohio 44512




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                  Dated: February 13, 2014
[Cite as State v. Shorter, 2014-Ohio-581.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Jeffrey Shorter, appeals from a Mahoning County
Common Pleas Court judgment convicting him of aggravated robbery, with an
accompanying firearm specification, and having a weapon while under disability.
        {¶2}     On December 27, 2009, MyLinda Seamans was working at Belleria
Pizza on Wick Avenue in Youngstown. At approximately 7:20 p.m. a man entered
the store yielding a gun. The man grabbed Seamans’ hand and demanded money
from the cash register. Seamans pushed the “panic button” to call the police and
tried unsuccessfully to open the cash register. When she was unable to open the
cash register, the man fled the store.
        {¶3}     Seamans described the robber as a black male, approximately 50 years
old, six-feet tall, and 200 pounds. She told police the man had a dark, possibly black
coat, with brown fur around the hood and that he had the hood up. She also relayed
that the robber was wearing black gloves with yellow writing on them.
        {¶4}     That night, Youngstown State University Police Officer Donald Cox was
working dispatch at the YSU Police Department. The YSU Police Department is not
far from Belleria. A man named Vandy Bryant came into the police department at
approximately 7:30 p.m. and told Officer Cox that Belleria was being robbed. Bryant
described the vehicle used at the robbery as a dark-pink or maroon 1978 Lincoln with
rear-end damage and no passenger side lights. He also relayed to Officer Cox that
the robber was a dark-skinned, black male wearing a thick, black coat with fur around
the edges. Bryant also described the driver of the Lincoln as a black male wearing a
black hat. Officer Cox put this description out over the police radio.
        {¶5}     Youngstown Police Officer Dorothy Johnson heard the description of
the vehicle and recognized it as belonging to a tenant at the Plazaview Apartments.
So she went to the apartments to look for the vehicle. When she did not find it there,
she patrolled the area nearby. At approximately 8:15 or 8:20 p.m., Officer Johnson
saw the vehicle on McGuffey Road. She stopped the vehicle. Stanley Croom was
driving the vehicle when Officer Johnson stopped it.        The car was registered to
Croom. Appellant was in the passenger seat. Appellant initially identified himself as
                                                                               -2-


“Semmie Shorter.” Appellant and Croom were placed under arrest. A black hat and
a pair of black gloves with yellow writing were recovered from the car.
       {¶6}     Two days later, Seamans identified Croom in a photo lineup as the man
who robbed Belleria.       Testing revealed that appellant’s, Croom’s, and another
individual’s DNA was present on the gloves with the yellow writing and appellant’s
and at least two other individuals’ DNA was present on the black hat.
       {¶7}     On January 28, 2010, a Mahoning County Grand Jury indicted
appellant and Croom in a joint indictment on one count of aggravated robbery, a first-
degree felony in violation of R.C. 2911.01(A)(1)(C), with a firearm specification. It
also charged Croom with one count of having weapons while under disability, a third-
degree felony in violation of R.C. 2923.13(A)(2)(B). On March 11, 2010, a grand jury
issued a superseding indictment that also charged appellant with one count of having
weapons while under disability.
       {¶8}     On February 8, 2011, appellant filed a motion to sever his trial from
Croom’s trial due to the separate evidence against each defendant. On September
29, 2011, appellant filed a renewed motion for severance, asserting that since Croom
had now elected to represent himself at trial there was even more danger of prejudice
to appellant. The trial court overruled appellant’s motions without explanation.
       {¶9}     On January 19, 2012, a grand jury handed down another superseding
indictment. It added additional charges against Croom for attempted aggravated
murder with a repeat violent offender specification and retaliation. These charges
stemmed from allegations that Croom attempted to hire a fellow inmate at the
Mahoning County Jail to kill Seamans so that she would not be able to testify against
him at trial.
       {¶10} The trial court severed the having weapons while under disability
charges from the remainder of the charges. These charges were tried to the court
while the remaining charges were tried simultaneously to a jury.          Appellant was
represented by counsel but Croom represented himself. The court found appellant
and Croom guilty of having weapons while under disability. The jury found appellant
                                                                                -3-


and Croom guilty of all remaining charges and specifications.
       {¶11} The trial court subsequently held a sentencing hearing where it
sentenced appellant to ten years in prison for aggravated robbery, three years for the
firearm specification, and three years for having a weapon while under a disability.
The court ordered appellant’s sentences to be served consecutively for a total of 16
years in prison.
       {¶12} Appellant filed a timely notice of appeal on March 14, 2012.
       {¶13} Appellant raises five assignments of error, the first of which states:

              THE TRIAL COURT ERRED, DEPRIVING MR. SHORTER OF
       HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH
       AMENDMENT TO THE UNITED STATES CONSTITUTION AND
       ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN IT
       DENIED MR. SHORTER’S CRIM.R. 29 MOTION FOR JUDGMENT OF
       ACQUITTAL NOTWITHSTANDING THE VERDICT, WHEN THE
       EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SUPPORT
       THE CONVICTIONS.

       {¶14} In this assignment of error, appellant asserts the evidence was
insufficient to support the jury’s verdict and the trial court should have granted his
Crim.R. 29 motion for acquittal or his motion for judgment notwithstanding the verdict.
       {¶15} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997).      In essence, sufficiency is a test of adequacy.         State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, the 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. Smith, 80 Ohio
                                                                                 -4-


St.3d at 113.
       {¶16} The jury convicted appellant of aggravated robbery in violation of R.C.
2911.01(A)(1), which provides:

                (A) No person, in attempting or committing a theft offense * * * or
       in fleeing immediately after the attempt or offense, shall do any of the
       following:
                (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.

       {¶17} The jury also convicted appellant of an accompanying firearm
specification in violation of R.C. 2941.145(A), finding that appellant had a firearm on
or about his person or under his control while committing the offense and displayed
the firearm, brandished the firearm, indicated that he possessed the firearm, or used
it to facilitate the offense.
       {¶18} And the trial court convicted appellant of having weapons while under
disability in violation of R.C. 2923.13(A)(2)(B), which provides:

                (A) Unless relieved from disability as provided in section 2923.14
       of the Revised Code, no person shall knowingly acquire, have, carry, or
       use any firearm or dangerous ordnance, if any of the following apply:
                ***
                (2) The person is under indictment for or has been convicted of
       any felony offense of violence or has been adjudicated a delinquent
       child for the commission of an offense that, if committed by an adult,
       would have been a felony offense of violence.

       {¶19} Because there was no evidence to suggest that appellant himself went
into Belleria, brandished a gun, and demanded money, it is reasonable to presume
the jury found appellant guilty of complicity by aiding and abetting Croom in the
                                                                              -5-


above acts.
       {¶20} A charge of complicity may be stated in terms of the complicity statute
or in terms of the principal offense. R.C. 2923.03(F). In order to support a conviction
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 the defendant shared the criminal intent of
the principal.”   State v. Johnson, 93 Ohio St.3d 240, 245, 2001-Ohio-1336, 754
N.E.2d 796.       The defendant's intent may be inferred from the circumstances
surrounding the crime. Id. The defendant's “‘[p]articipation in criminal intent may be
inferred from presence, companionship and conduct before and after the offense is
committed.’” Id., quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884
(1971).
       {¶21} Appellant makes several arguments under this assignment of error.
First, he argues that statements made by Vandy Bryant should not have been
admitted into evidence because they were hearsay and there was no evidence that
Bryant was “unavailable” to testify.
       {¶22} On review for sufficiency of the evidence, an appellate court is to
consider all testimony presented at trial, whether or not it was properly admitted.
State v. Peeples, 7th Dist. No. 07 MA 212, 2009-Ohio-1198, ¶¶16-17, citing State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216.              We do not
determine whether evidence was inadmissible and then review the sufficiency of the
admissible evidence. Id. at ¶16. Thus, we consider Officer Cox’s testimony as to
what Bryant reported to him because the jury considered this evidence in reaching its
decision.
       {¶23} According to Officer Cox, at 7:27 p.m. on the night in question, Bryant
came into the YSU Police Station and reported that Belleria was being robbed. (Tr.
686, 689).    Bryant described the vehicle used in the robbery as a dark-pink or
maroon 1978 Lincoln with rear-end damage and no passenger lights.            (Tr. 687).
Bryant described the robber as a gun-yielding, dark-skinned black male wearing a
                                                                            -6-


thick black coat with fur on the edges. (Tr. 688). Bryant told Officer Cox the robber
got into the Lincoln, which was being driven by “a black male wearing a black hat.”
(Tr. 688). This is the only description the jury is ever given of the driver of the
Lincoln.
       {¶24} The remaining evidence was as follows.
       {¶25} Seamans testified that at approximately 7:20 p.m., a man entered
Belleria and approached the counter. (Tr. 535). The man, while pointing a gun at
Seamans with one hand, grabbed her arm with the other hand and demanded
money. (Tr. 535-536, 539). He told Seamans that if she gave him the money, no
one would get hurt. (Tr. 535). Seamans was unable to open the register. (Tr. 537).
The robber became upset and left.      (Tr. 539).   Seamans described the man as
wearing a black jacket with fur around the hood and black gloves with yellow writing
on them. (Tr. 538). She thought the robber was approximately 5’8” and 200 pounds.
(Tr. 542). Two days after the robbery, Seamans was shown two photo arrays and
picked Croom’s photograph out of the second array as the man who robbed her. (Tr.
546-548). Seamans also identified Croom at trial. (Tr. 557).
       {¶26} Seamans described the robber’s gun as a black revolver with brown
handgrips. (Tr. 538). She was able to differentiate between a revolver and a semi-
automatic weapon due to her experience with weapons during her time in the military.
(Tr. 538-539). She stated that during her encounter with the robber he had the gun
pointed at her. (Tr. 539).
       {¶27} Jacquelyn Richards, another Belleria employee, testified that on the
night in question she was in the back of the restaurant making pizza when she heard
someone yelling. (Tr. 516). She went to see what was happening and saw a black
man with a black gun yelling at Seamans. (Tr. 517). Richards crawled back to the
kitchen and another employee called 911. (Tr. 518).
       {¶28} Officer Brad Ditullio responded to a call at Belleria at 7:27 p.m. (Tr.
476). He interviewed Seamans, who gave him a description of the robber. (Tr. 479).
He also watched a video from Belleria’s surveillance cameras and noticed the yellow
                                                                               -7-


writing on the robber’s gloves. (Tr. 483).
        {¶29} Upon hearing the description of the getaway car on the police radio,
Officer Johnson recognized the car from her side job working security at the
Plazaview Apartments. (Tr. 665-666). She stated that the Lincoln was a “real weird-
looking color” and had heavy rear-end damage. (Tr. 666). Officer Johnson began
looking for the car near the apartments.       (Tr. 667).   She spotted it nearby on
McGuffey Road at 8:15 or 8:20 p.m. (Tr. 667). She stopped the car. (Tr. 668).
Croom was driving the car and appellant was the passenger. (Tr. 670, 673-674).
        {¶30} Officer Sharon Burton processed Croom’s car after the arrest. Officer
Burton testified that she found a pair of gloves with yellow writing on them (Ex. 6) and
a black hat (Ex. 9) in the front console. (Tr. 651). Seamans identified the gloves as
those worn by the robber. (Tr. 559).
        {¶31} Christopher Smith is a forensic biologist who performed DNA testing at
the Bureau of Criminal Identification and Investigation. He compared DNA from the
gloves and hat found in Croom’s car with DNA samples from appellant and Croom.
        {¶32} As to the gloves, Smith concluded that they contained DNA consistent
with appellant, Croom, and at least one other individual. (Tr. 778). He stated that
appellant could not be excluded as a major contributor of the DNA in the gloves. (Tr.
779). And he stated that Croom could not be excluded as a minor contributor of the
DNA in the gloves. (Tr. 781). Smith agreed this could be consistent with appellant
wearing the gloves routinely and Croom wearing them less often. (Tr. 781).
        {¶33} As to the hat, Smith concluded it contained DNA consistent with
appellant and at least two other individuals. (Tr. 782). Smith stated he was unable to
draw a conclusion regarding Croom’s DNA in the hat. (Tr. 782-783). There was not
enough information in the DNA profile to determine if Croom’s DNA was present. (Tr.
783).
        {¶34} This was the extent of the evidence as it pertained to appellant. There
was no evidence that appellant personally robbed Belleria or ever had actual
possession of the gun. Thus, the jury found him guilty of complicity by aiding and
                                                                             -8-


abetting Croom in robbery and possession of a firearm. The question then facing this
court is whether the above evidence was sufficient to prove that appellant aided and
abetted Croom.
       {¶35} The evidence against appellant can be summed up as follows. Croom
was identified as robbing Belleria at 7:27 p.m. When Croom fled Belleria, a black
male wearing a black hat was driving Croom’s vehicle. Appellant was found with
Croom, as a passenger in Croom’s vehicle, between 8:15 and 8:20 p.m. Inside
Croom’s vehicle was a pair of gloves that he likely wore during the robbery and a
black hat. Both the hat and the gloves contained appellant’s DNA along with DNA
belonging to at least two other individuals.
       {¶36} From this evidence it would be highly speculative to presume that
appellant was the driver of Croom’s car when Croom robbed Belleria. The only
description of the getaway driver was that he was a black male wearing a black hat.
This description is not very helpful. Furthermore, police did not stop Croom’s vehicle
until at least 48 minutes after the robbery. And appellant was not driving the car at
the time. Instead, Croom was driving. There is no explanation as to what occurred
during the 48 minutes after the Belleria robbery and before Croom and appellant
were apprehended by police.
       {¶37} In order for the jury to convict appellant of complicity to aggravated
robbery, the evidence had to show that appellant “supported, assisted, encouraged,
cooperated with, advised, or incited” Croom in the commission of the robbery, and
that appellant shared Croom’s criminal intent. Johnson, 93 Ohio St.3d at 245. And
while participation in the principal offender’s criminal intent can be inferred from
presence and companionship before and after the robbery, there is no evidence that
appellant was the driver of Croom’s car when Croom fled from Belleria. The only
description of the driver was that he was a black male wearing a black hat. There
was no description of the height, weight, age, or other clothing of the driver. And
while appellant was with Croom when he was apprehended, this did not occur until at
least 48 minutes after the robbery. This is a substantial lapse in time when it is one
                                                                                -9-


of the only facts to potentially link appellant to the robbery. Moreover, appellant was
not driving the car when it was stopped by police. Croom was driving. Thus, Croom
clearly had the time and the opportunity to switch drivers after the robbery.
       {¶38} Appellant further argues the DNA evidence relied on by the state did
not link him to the crimes. He urges that even if the state proved that the gloves
found in Croom’s car belonged to him, this did not link him to the robbery beyond a
reasonable doubt.
       {¶39} Smith testified that DNA found in the gloves and the hat was consistent
with appellant’s DNA.    However, the gloves also contained DNA consistent with
Croom and at least one other person and the hat contained the DNA of at least two
other people. Thus, the DNA evidence did not actually link appellant to the robbery.
       {¶40} Based on the above, we must conclude that the evidence was not
sufficient to support appellant’s convictions for aggravated robbery with a firearm
specification and having a weapon while under disability.
       {¶41} Accordingly, appellant’s first assignment of error has merit.
       {¶42} Appellant’s remaining assignments of error state:

              MR. SHORTER’S DUE PROCESS RIGHTS UNDER THE
       STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED BY
       PROSECUTORIAL MISCONDUCT WHEN THE STATE’S ATTORNEY
       COMMENTED ON MR. SHORTER’S FAILURE TO PRESENT
       EVIDENCE AND/OR TESTIFY AT TRIAL, THEREBY SHIFTING THE
       BURDEN OF PROOF TO MR. SHORTER AND VIOLATING HIS FIFTH
       AMENDMENT RIGHTS.

              MR. SHORTER’S DUE PROCESS RIGHTS UNDER THE
       STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED BY
       PROSECUTORIAL MISCONDUCT WHEN THE STATE’S ATTORNEY
       URGED THE JURY TO RELY UPON THE PREJUDICIAL EVIDENCE
       THAT WAS NOT PROPERLY IN THE RECORD.
                                                                              - 10 -


            MR. SHORTER WAS DENIED DUE PROCESS OF LAW AND A
     FAIR TRIAL WHEN THE TRIAL COURT DENIED HIS MOTIONS TO
     SEVER HIS TRIAL FROM THE TRIAL OF HIS CO-DEFENDANT.

              MR. SHORTER WAS DENIED A FAIR TRIAL BY REASON OF
       CUMULATIVE ERRORS COMMITTED DURING THE COURSE OF
       THE TRIAL.

       {¶43} Because we have concluded that the evidence was insufficient to
support appellant’s convictions, these remaining assignments of error are moot.
       {¶44} Based on the merit of the first assignment of error, appellant’s
convictions are hereby reversed and the charges dismissed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs with attached concurring opinion.

       {¶45} I join the majority's holding that there was insufficient evidence to
sustain Appellant's conviction pursuant to the complicity statute for aiding and
abetting Croom.     I write separately to discuss Appellant's assignment of error
regarding joinder; it was plain error for the trial court to deny Appellant's motion to
sever his trial from Croom's.    Although the reversal for insufficiency technically
renders the joinder assignment of error moot, the issue is significant enough to merit
discussion. This appeal affords the opportunity to review a trial court's failure to
sever trials where the conviction of the defendant seeking severance rests upon the
complicity statute, a situation that becomes especially prejudicial where, as here, the
evidence connecting the alleged accomplice to the principal co-defendant is
markedly insufficient.
       {¶46} Appellant initially moved to sever due to the separate evidence against
each defendant; but when Croom decided to represent himself at trial, Appellant
asserted this would increase the prejudice to him and he renewed his motion. The
trial court overruled both motions without explanation. However, Appellant failed to
                                                                                  - 11 -


renew the motion after the grand jury issued the superseding indictment charging
Croom with attempted aggravated murder and retaliation. Thus, we must review for
plain error. To prevail on appeal, Appellant must demonstrate that but for the alleged
error the outcome of the trial would have been clearly different. State v. Waddell, 75
Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).
       {¶47} Generally, the law favors joinder of co-defendants to conserve judicial
and prosecutorial time, lessen the expense of multiple trials, reduce the
inconvenience to witnesses and minimize the possibility of incongruous results in
separate trials before different juries. State v. Thomas, 61 Ohio St.2d 223,225, 400
N.E.2d 401 (1980). However, where the defendant establishes that joinder would be
prejudicial, Crim.R. 14 provides that the trial court shall sever co-defendants' trials.
On appeal, the defendant must demonstrate that the trial court abused its discretion
in denying severance. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824
N.E.2d 959, ¶29. "The test is 'whether a joint trial is so manifestly prejudicial that the
trial judge is required to exercise his or her discretion in only one way—by severing
the trial. * * * A defendant must show clear, manifest and undue prejudice and
violation of a substantive right resulting from failure to sever. * * *.' " State v. Bundy,
7th Dist. No. 02 CA 211, 2005-Ohio-3310, ¶54. quoting State v. Schiebel 55 Ohio
St.3d 71, 89, 564 N.E.2d 54 (1990), quoting United States v. Castro, 887 F.2d 988,
996 (9th Cir.1989).
       {¶48} Appellant has made that showing here. As argued by Appellant in his
first assignment of error, the evidence demonstrating that he was complicit in the
aggravated robbery was scant. Although the State argues that the evidence and
charges against Appellant and Croom were distinct, straightforward and easily
understood, the trial court's jury instructions nonetheless could not rectify the
prejudice to Appellant as a result of being tried together with Croom.
       {¶49} The events surrounding the aggravated robbery and related charges
necessarily involve Appellant and Croom. Because Appellant did not commit the
same acts as Croom, he could only be convicted by aiding and abetting Croom.
                                                                                - 12 -


Thus, a separate trial would necessarily require evidence of what Croom did the night
of the robbery in order to sustain a complicity conviction against Appellant, in addition
to evidence showing something more than that Appellant was a passenger in the car
being driven by Croom, which had been at the crime scene almost an hour before.
Conversely, Croom's conduct giving rise to the attempted aggravated murder and
retaliation charges occurred two years after the robbery.          Specifically, that he
solicited Levitski to murder the only witness tying Croom to the robbery.           That
witness's testimony would in turn support a complicity conviction against Appellant.
However, there was no evidence whatsoever that Appellant was involved with that
separate criminal scheme.
       {¶50} Thus, Appellant was prejudiced by being tried with his co-defendant on
the aggravated robbery and related charges because the jury was presented with
evidence that Croom attempted to eliminate the only witness to directly link Croom to
the robbery and Appellant by extension via the complicity charge. The prejudice to
Appellant is evident in light of this court's decision to vacate Appellant's conviction
because the State presented insufficient evidence. Accordingly, Appellant's fourth
assignment of error is also meritorious.
