[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. McFarland, Slip Opinion No. 2020-Ohio-3343.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-3343
          THE STATE OF OHIO, APPELLEE, v. MCFARLAND, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. McFarland, Slip Opinion No. 2020-Ohio-3343.]
Criminal law—Complicity—Conspiracy—Aggravated murder—Sufficiency of the
        evidence—Court of appeals’ judgment affirmed.
   (No. 2018-1116—Submitted December 10, 2019—Decided June 18, 2020.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 105570, 2018-Ohio-2067.
                                    _________________
        KENNEDY, J.
        {¶ 1} In this discretionary appeal from the Eighth District Court of Appeals,
we are asked to determine whether there was sufficient evidence to support the
convictions of the appellant, Sheila McFarland, on charges relating to the murder
of Robert Williams. The Eighth District Court of Appeals held that there was
sufficient evidence to support the convictions. We agree and therefore affirm the
judgment of the appellate court.
                             SUPREME COURT OF OHIO




               FACTUAL AND PROCEDURAL BACKGROUND
         {¶ 2} Robert Williams was gunned down in the hallway outside his
apartment on November 14, 2015. McFarland did not pull the trigger and was not
at the scene of the murder. The issue in this case is whether there was sufficient
evidence produced at trial to support the jury’s verdicts that McFarland had
conspired to murder Williams and had been complicit in the acts leading to his
death.
         {¶ 3} There is no dispute as to why Williams was killed and who killed him.
Williams was a drug dealer whose cooperation with police had led to the arrest and
jailing of his supplier, Eddie “Mann” Brownlee. McFarland was Brownlee’s
girlfriend, and she, too, had been arrested on drug charges due to Williams’s
cooperation with police. Ryan Motley, an associate of Brownlee, killed Williams,
with encouragement from Brownlee to, at the very least, harm Williams. This case
is about McFarland’s involvement in the murder.
                      The arrest of Brownlee and McFarland
         {¶ 4} Williams was 64 years old at the time of his death and was living in
Euclid with his girlfriend, Korri Henderson, in the Indian Hills Senior Community
Apartments. He also sold drugs there. After police caught Williams drug dealing
in and around the Indian Hills complex, they searched his apartment and recovered
crack cocaine. They arrested both Williams and Henderson; the pair then agreed
to become confidential informants against their supplier, Brownlee.
         {¶ 5} Police used Williams to conduct three controlled drug buys from
Brownlee. In two of those buys, Brownlee handled the transaction with Williams.
In the third, the purchase was made from McFarland. Police arrested Brownlee and
McFarland directly after the third transaction. Both were taken to the Euclid Police
Department; McFarland was released, but Brownlee was kept in jail. It was
October 25, 2015.




                                          2
                               January Term, 2020




                                  Calls from jail
       {¶ 6} Brownlee and McFarland almost immediately suspected that it was
Williams who was responsible for their arrests. Brownlee called McFarland
numerous times from jail; those calls were recorded, and portions were later played
to the jury. Brownlee called his own cellphone, which McFarland possessed. On
Brownlee’s first call to McFarland from jail, on October 25, 2015, McFarland
suggested to Brownlee that it was Williams who had set him up, and Brownlee said
that he was going to “get him.” Motley, the eventual triggerman, was with
McFarland when Brownlee called, and he also talked to Brownlee on that call.
Brownlee told Motley, “I need you to handle this. * * * Get Rob.” On that same
call, Brownlee asked McFarland what had happened to his “hammer,” in other
words, his gun. She reported that Motley had retrieved it from the hotel room that
she and Brownlee had been staying in and had then given it to Brownlee’s brother,
Chris. Motley testified that he got the gun back from Chris within two days of
giving it to him and that that gun was the murder weapon.
       {¶ 7} On subsequent calls from jail, Brownlee, incensed about his
predicament, discussed his suspicions about Williams and Henderson working with
police and McFarland agreed. He told McFarland that he was going to “beat
[Williams’s] ass,” that he was going to “get him,” and that Williams was not going
to get away with what he had done. He asked McFarland whether Motley knew
that Williams had been the informant. McFarland had talked to Motley about it,
and McFarland reported to Brownlee that Motley said that Williams would “have
to be handled.” McFarland reported that many of their associates thought it was
Williams who had informed on Brownlee and that “something got to be done.” On
another call, McFarland reported that she had talked to Williams and Henderson
and they had denied setting up Brownlee, but McFarland said she knew the couple
had been involved by the way they were acting. During a call just before Brownlee




                                        3
                            SUPREME COURT OF OHIO




was released, when the subject of Williams came up, McFarland urged Brownlee
not to talk about it, saying, “You never know about this phone.”
                McFarland’s activities while Brownlee was jailed
       {¶ 8} McFarland maintained some contact with Williams and Henderson
even after her arrest. On October 27, 2015, McFarland called Henderson from
Brownlee’s cellphone and left two messages in which she accused Henderson and
Williams of working with detectives and being snitches. But she also met with
Williams and Henderson and got a ride from them to the county jail to add money
to Brownlee’s commissary account.
       {¶ 9} With Brownlee in jail, McFarland sought help from Motley; she
suggested that they sell drugs together to raise money to post Brownlee’s bond.
McFarland saw Motley every day while Brownlee was in jail and together they
raised money for Brownlee by selling drugs.
       {¶ 10} Motley later testified at McFarland’s trial; although he was the
state’s witness, the state confronted him at points with prior testimony and with a
previous written statement he had prepared about the events concerning Williams’s
death. Motley testified that McFarland would vent to him about Brownlee being in
jail. In discussions about the informants, McFarland told Motley that “they” needed
to be “f[—-]ed up.” And she communicated with Motley about the gun that would
become the murder weapon.
                         Events after Brownlee’s release
       {¶ 11} On November 10, 2015, Brownlee was released from county jail. He
and McFarland almost immediately went back to selling drugs together. On or
around November 12, Brownlee and McFarland delivered crack to one of
Brownlee’s customers, Dwayne Jackson. Jackson testified that McFarland told
him, “Watch out for Rob, they’re snitching.”
       {¶ 12} Sometime between Brownlee’s release from jail on November 10
and Williams’s murder on November 14, Brownlee and Motley met in a hotel room




                                        4
                               January Term, 2020




in Willoughby and discussed what to do about Williams; McFarland was also in
the hotel room. Motley testified that Brownlee told him to “go rough the dude up,
beat him up” and that Brownlee offered to pay Motley’s accomplices.
        {¶ 13} Henderson testified at McFarland’s trial. She stated that the night
before the murder, Williams received a threatening call from Brownlee saying that
he was out of jail and would be coming for him and that Henderson and Williams
were going to see their graves. According to Henderson, other threatening calls
followed. A truck appeared at Williams’s apartment complex that evening, and
four people got out and started staring up at Williams’s apartment window, where
he was standing. Henderson called police to the apartment and filed a police report.
After the police left, Henderson called a friend who also lived in the complex and
she and Williams went there to stay until morning.
        {¶ 14} In the early hours of November 14, while at the friend’s apartment,
Henderson got a call from McFarland. Henderson testified that the call came
between 4:00 and 5:00 a.m., but telephone records revealed that no calls had come
from Brownlee’s phone after 3:11 a.m. Henderson told McFarland they had been
getting threatening calls, and McFarland laughed it off. When Henderson told
McFarland that the calls had come from Brownlee, McFarland denied Brownlee
had made the calls and claimed she had been with him all night. Henderson
testified:


               When she called, she just asked, she was like, How you-all
        doing? And I was like, What you mean? I’m like, How do you
        think we're doing? We’ve been getting threatening calls all night.
        And she was like, What you mean?           And I was like, Mann
        [Brownlee’s nickname] been calling Rob phone threatening us. And
        she was like saying what and whatever, and I was like talking about
        we going to die and he out of jail now, he coming to see us,




                                         5
                             SUPREME COURT OF OHIO




       whatever, whatever. And she was like, You sure that was Mann?
       And I said, Yeah, it was his phone. I said, It came from you-all
       phone. And she was like, He ain’t made no calls like that. But she
       was like, I’ve been with him the whole time. And I said, Well, they
       came from you-all phone unless somebody else had you-all phone.


       {¶ 15} Henderson testified that McFarland said she had to end the call
because Brownlee was coming. After that call, Henderson and Williams returned
to their own apartment. Henderson testified that they didn’t sleep much and at
around 10:00 a.m., Williams went out to take a walk down the hallway.
                                  The shooting
       {¶ 16} Williams was shot as he walked down the hallway outside his
apartment. Motley was the shooter. He had two other people with him, his brother
Raymond and another acquaintance, Rahkee Young. All three snuck into the
apartment complex and put on masks and gloves after they got inside. Motley
testified that he had placed tape over the door peepholes of the apartments near
Williams’s apartment (although DNA tests revealed his brother’s DNA on the tape)
so that those neighbors could not see what was going on in the hallway. The three
hid in the stairwell at the end of the hall behind a door. Surveillance video shows
that when Williams left his apartment and was walking down the hallway, Motley
and Young emerged from behind the door and approached Williams. Williams
stopped and turned, and after a brief confrontation, Motley quickly fired one shot
from close distance. The three then fled. Motley called Brownlee later that evening
and told him, “It’s done.”
       {¶ 17} Motley testified that later that night or the next day, Brownlee met
him and paid him with drugs that were worth around $4,000 and that the three
assailants, Brownlee, and McFarland met at a hotel.




                                        6
                                January Term, 2020




       {¶ 18} Henderson was able to identify Motley from the apartment
building’s surveillance footage. Henderson told a responding officer that she had
been threatened by people she knew as Mann and Sheila and that she and Williams
had been working with the narcotics department.
                          Trial and appellate proceedings
       {¶ 19} Ryan Motley, Raymond Motley, Young, Brownlee, and McFarland
were all indicted on ten counts, as follows: Count 1, aggravated murder under R.C.
2903.01(A) (committed with prior calculation and design); Count 2, aggravated
murder under R.C. 2903.01(B) (committed in the course of committing felonious
assault); Count 3, conspiracy to commit aggravated murder or murder under R.C.
2923.01(A)(1); Count 4, murder under R.C. 2903.02(B) (committed while
committing aggravated burglary); Count 5, murder under R.C. 2903.02(B)
(committed while committing felonious assault); Count 6, felonious assault under
R.C. 2903.11(A)(1) (knowingly causing serious physical harm); Count 7, felonious
assault under R.C. 2903.11(A)(2) (committed with a deadly weapon); Count 8,
aggravated burglary under R.C. 2911.11(A)(1) (inflicted physical harm on the
victim); Count 9, aggravated burglary under R.C. 2911.11(A)(2) (committed with
a deadly weapon); and Count 10, kidnapping under R.C. 2905.01(A)(3). All ten
counts included a firearm specification.
       {¶ 20} McFarland’s case was tried to a jury. At the conclusion of the state’s
case, McFarland’s counsel moved for dismissal under Crim.R. 29, arguing that the
state had failed to meet its burden to present sufficient evidence to establish the
elements of the charges in the ten-count indictment. The trial judge denied the
motion, and the jury found McFarland guilty on all ten counts. For purposes of
sentencing, the trial court merged Counts 1, 2, 4, 5, 6, and 7 (the aggravated-murder,
murder, and felonious-assault counts), Counts 8 and 9 (the aggravated-burglary
counts), and all the gun specifications. The trial court sentenced McFarland to life
in prison without the possibility of parole on Count 1, a concurrent 11 years on




                                           7
                              SUPREME COURT OF OHIO




Count 3, a concurrent 11 years on Count 8, and a concurrent 11 years on Count 10.
The judge merged all the gun specifications and added three years to her sentence
for the gun specification on Count 1, to be served prior to the life sentence, and a
$20,000 fine on that count.
       {¶ 21} McFarland appealed to the Eighth District Court of Appeals, and that
court affirmed the convictions. In the appellate court, the state conceded that the
kidnapping and aggravated murder convictions should have merged for sentencing.
The court “remanded for resentencing for the sole purpose of merging the
kidnapping count with the aggravated murder count and allowing the state to
determine on which count to proceed to sentencing.” State v. McFarland, 8th Dist.
Cuyahoga No. 105570, 2018-Ohio-2067, ¶ 67. This court accepted one proposition
of law for review: “A criminal defendant’s constitutional rights are violated when
she is found guilty based on insufficient evidence.”
                              LAW AND ANALYSIS
       {¶ 22} McFarland’s proposition of law is axiomatic—“a conviction based
on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida
(1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson
v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.” State v.
Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). Therefore, the
question we face does not concern the effect of a conviction based upon insufficient
evidence. Instead, we address a question appellate courts deal with regularly—
whether the evidence was sufficient to support the jury verdicts in this case against
this defendant. We conclude that the verdicts were based upon sufficient evidence.
                              Sufficiency of the evidence
       {¶ 23} McFarland argues that the evidence presented by the state was
insufficient to support a conviction on any of the crimes with which she was
charged. “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




                                          8
                                January Term, 2020




a matter of law to support the jury verdict.” State v. Smith, 80 Ohio St.3d 89, 113,
684 N.E.2d 668 (1997). Retrial is barred if a reversal is based upon a finding that
the evidence was legally insufficient to support the conviction. “ ‘A verdict of not
guilty, whether rendered by the jury or directed by the trial judge, absolutely shields
the defendant from retrial. A reversal based on the insufficiency of the evidence
has the same effect because it means that no rational factfinder could have voted to
convict the defendant.’ ” Thompkins at 387, quoting Tibbs at 41.
       {¶ 24} This court has set forth the standard appellate courts should employ
in reviewing the sufficiency of the evidence for a conviction:


               An appellate court’s function when reviewing the
       sufficiency of the evidence to support a criminal conviction is to
       examine the evidence admitted at trial to determine whether such
       evidence, if believed, would convince the average mind of the
       defendant’s guilt beyond a reasonable doubt. 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.
       (Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
       (1979), followed.)


State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus, superseded by constitutional amendment on other grounds as stated in
State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). The trier of fact has the
responsibility “fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319.




                                          9
                                  SUPREME COURT OF OHIO




        {¶ 25} The trial court sentenced McFarland on four counts only—Count 1
(aggravated murder committed with prior calculation and design), Count 3
(conspiracy to commit aggravated murder or murder), Count 8 (aggravated
burglary while inflicting physical harm on the victim), and Count 10 (kidnapping),
so we consider the sufficiency of the evidence on those convictions only.1 State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (“a ‘conviction’
consists of a guilty verdict and the imposition of a sentence or penalty” [emphasis
sic]); State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 138
(merger of kidnapping count with aggravated-robbery and aggravated-burglary
counts moots sufficiency-of-the-evidence claim regarding kidnapping count).
                                          Complicity
        {¶ 26} The major consideration in determining the sufficiency of the
evidence in this case is not whether the individual crimes were committed but
whether the evidence of McFarland’s involvement in them was sufficient to find
her guilty of the crimes. There is no suggestion that McFarland was present at the
scene of the shooting. For the bulk of the charges, the central issue is whether the
state proved that McFarland was complicit in the commission of the crimes. R.C.
2923.03 is Ohio’s complicity statute. It states:


                 (A) No person, acting with the kind of culpability required
        for the commission of an offense, shall do any of the following:
                 (1) Solicit or procure another to commit the offense;
                 (2) Aid or abet another in committing the offense;




1. Pursuant to the judgment of the court of appeals, after remand to the trial court McFarland will
be sentenced on only three counts due to the merger of the kidnapping and aggravated murder
convictions. At this point, we do not know whether the state will choose sentencing for aggravated
murder or kidnapping, so we review all four convictions for sufficiency.




                                                10
                                January Term, 2020




               (3) Conspire with another to commit the offense in violation
       of section 2923.01 of the Revised Code;
               (4) Cause an innocent or irresponsible person to commit the
       offense.


       {¶ 27} The statute does not define “aid or abet,” but this court has stated
that to aid or abet is “ ‘[t]o assist or facilitate the commission of a crime, or to
promote its accomplishment,’ ” State v. Johnson, 93 Ohio St.3d 240, 243, 754
N.E.2d 796 (2001), quoting Black’s Law Dictionary 69 (7th Ed.Rev.1999).
       {¶ 28} R.C. 2923.03(F) provides that anyone who violates the complicity
statute “shall be prosecuted and punished as if he were a principal offender” and
that an offender need not be charged under R.C. 2923.03, but instead may be
charged with complicity in terms of the principal offense. Therefore, the state was
not required to explicitly allege complicity. State v. Skatzes, 104 Ohio St.3d 195,
2004-Ohio-6391, 819 N.E.2d 215, ¶ 32.           McFarland was not charged with
complicity under the statute but was charged with the principal offenses.
       {¶ 29} “To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), 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.” Johnson at syllabus. “ ‘Participation in criminal intent may be
inferred from presence, companionship and conduct before and after the offense is
committed.’ ” Id. at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273
N.E.2d 884 (4th Dist.1971). “The court must view the evidence in the light most
favorable to the prosecution and defer to the trier of fact on questions of credibility
and the weight assigned to the evidence. State v. Fry, 125 Ohio St.3d 163, 2010-
Ohio-1017, 926 N.E.2d 1239, ¶ 146.” State v. Kirkland, 140 Ohio St.3d 73, 2014-
Ohio-1966, 15 N.E.3d 818, ¶ 132.




                                          11
                            SUPREME COURT OF OHIO




       {¶ 30} As explained in detail below, the evidence at trial was sufficient to
prove that McFarland was complicit in the crimes associated with the killing of
Williams.
                               Aggravated murder
       {¶ 31} In Count 1, McFarland was charged with aggravated murder
pursuant to R.C. 2903.01(A). Under that statute, “[n]o person shall purposely, and
with prior calculation and design, cause the death of another.” The element of prior
calculation and design “require[s] a scheme designed to implement the calculated
decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978). The
evidence was sufficient to support a conviction based on McFarland’s participation
and complicity in the scheme to kill Williams.
       {¶ 32} McFarland was at the center of the series of events that led to the
killing of Williams. From the spark of the idea that revenge would be had against
Williams and Henderson in Brownlee’s call from jail on October 25, to the
telephone call she made to Henderson hours before the murder to assure Henderson
that Brownlee was not threatening her and Williams, McFarland helped move the
plan forward.
       {¶ 33} In one of the first calls from jail, McFarland and Brownlee identified
Williams as a snitch and Brownlee said that he was going to “get him.” McFarland
brought Motley in on the call.       She made it clear that she had had prior
conversations with Motley about the “hammer,” the gun that Motley would
eventually use to shoot Williams. Motley testified that he had received a text from
McFarland regarding “their” gun, meaning Brownlee and McFarland’s gun.
       {¶ 34} While Brownlee was in jail, McFarland worked with Motley to sell
drugs to finance Brownlee’s bail. During her time with Motley, McFarland made
clear to him that Williams and Henderson had to be dealt with. McFarland let the
two know in a voicemail on October 27 that she considered them to be snitches.
McFarland told Motley that they needed to be harmed. In another telephone call




                                        12
                                January Term, 2020




with Brownlee, McFarland made clear to him that she had talked to Motley about
what to do about Williams and Henderson and that Williams would “have to be
handled.” She had talked to other people about Williams and Henderson and told
Brownlee that everybody knew about their role in McFarland’s and Brownlee’s
arrests and that “something got to be done.” In a November 9 telephone call closer
to Brownlee’s release from jail, she was more circumspect: after Brownlee said, “I
could kick they ass,” McFarland responded that they should not talk about it on the
phone.
         {¶ 35} Once Brownlee got out of jail, things moved quickly. McFarland
was in the hotel room when Motley and Brownlee agreed that Motley would harm
Williams. Although Motley testified that the plan was only to “rough up” Williams,
the presence and quick use of the gun are evidence that murder was the plan, as was
Brownlee’s phone-call threat to Williams and Henderson that they were going to
see their graves. The night before the murder, threatening phone calls—including
the “see your graves” call—were made to Williams and four men arrived in the
apartment parking lot in a truck and seemed to threaten Williams and Henderson.
Williams and Henderson were frightened enough to stay with someone else in the
apartment complex. In the early morning of November 14, hours before the
murder, McFarland called Henderson and she attempted to assure her that it could
not have been Brownlee making the calls, because she had been with him the entire
night. A reasonable juror could determine from this evidence that McFarland was
trying to minimize the imminent threat that Williams and Henderson faced. After
the call, they did return to their own apartment.
         {¶ 36} Later that morning, a planned attack was executed. At some point,
tape was placed over Williams’s neighbors’ peepholes. Three people lay in wait in
a stairwell until Williams emerged from his apartment. As Williams walked down
the hallway outside his apartment, Motley and Young approached from behind.
After Williams stopped and turned, there was a brief altercation before Motley fired




                                         13
                             SUPREME COURT OF OHIO




the gun. Less than ten seconds after Motley emerged from the stairwell, Williams
was shot. Motley testified that he called Brownlee and told him, “It’s done.” Not
that the plan had spun out of control or that there had been an accident; he merely
reported, “It’s done.”
       {¶ 37} When Motley and his associates met with Brownlee after the murder
of Williams, McFarland was present again. In his testimony, Motley tried to
diminish McFarland’s involvement, and when faced with prior testimony or prior
written statements, he tried to back off from those that implicated McFarland. For
instance, regarding McFarland’s statement that “they” needed to be “f[—-]ed up,”
Motley explained at trial that he understood that “they” really meant Henderson
only, but the state pointed out that Motley had written “they” in his earlier
statement. Motley also testified that he had been in contact with McFarland about
the location of one of Brownlee’s firearms; however, in his written statement, he
had referred to it as one of “their” firearms. Motley eventually admitted in his trial
testimony that he had received a text message from McFarland about “their”
firearm. A juror could have easily interpreted parts of Motley’s testimony as trying
to save McFarland from prosecution. The jury “may believe or disbelieve any
witness or accept part of what a witness says and reject the rest. In reaching its
verdict, the jury should consider the demeanor of the witness and the manner in
which he testifies, his connection or relationship with the prosecution or the
defendant, and his interest, if any, in the outcome.” State v. Antill, 176 Ohio St. 61,
67, 197 N.E.2d 548 (1964).
       {¶ 38} The meetings before and after the murder, the use of Brownlee and
McFarland’s gun, the lying in wait, the inclusion of Young and Raymond Motley
as backup, the tape over peepholes, how quickly Motley fired the shot after
emerging from the stairwell, and the phone call reporting, “It’s done,” all indicate
prior calculation and design and that the assailants planned to cause the death of
Williams.




                                          14
                               January Term, 2020




       {¶ 39} “ ‘Participation in criminal intent may be inferred from presence,
companionship and conduct before and after the offense is committed.’ ” Johnson,
93 Ohio St.3d at 245, 754 N.E.2d 796, quoting Pruett, 28 Ohio App.2d at 34, 273
N.E.2d 884. McFarland was a constant presence as Williams and Henderson were
identified as targets and as it was decided that something had to be done. She
discussed with Motley that Williams would “have to be handled” and incited him
to harm the informants. She did not seek to have Motley return the murder weapon
before the murder, advised Brownlee not to discuss Williams over the jail
telephone, and was present at the planning meeting and the post-murder meeting.
McFarland assisted in the plan by attempting to assuage Henderson’s fears that she
faced imminent danger from Brownlee. Finally, the drug-selling business she
engaged in with Brownlee produced the payout to Motley.
       {¶ 40} We determine that after viewing the evidence in a light most
favorable to the prosecution, a rational trier of fact could have found that the
essential elements of aggravated murder under R.C. 2903.01(A) had been proved
beyond a reasonable doubt—McFarland purposely and with prior calculation and
design caused the death of Williams or aided or abetted those who did by
facilitating the commission of aggravated murder or by actively promoting it. She
supported, assisted, encouraged, cooperated with, advised, and incited Brownlee
and Motley in the planning and commission of the crime.
       {¶ 41} A rational trier of fact could have also found McFarland guilty of
aggravated murder through complicity by virtue of R.C. 2923.03(A)(1), by
“solicit[ing] or procur[ing] another to commit the offense.” During her time selling
drugs with Motley while Brownlee was in jail, she discussed with Motley the role
of Henderson and Williams in Brownlee’s incarceration, and told him that “they”
should be “f[—-]ed up.” She told Brownlee that she had discussed the matter with
Motley and that Motley said that Williams would “have to be handled.” She never
sought from Motley a return of the gun that she shared with Brownlee. She was




                                        15
                             SUPREME COURT OF OHIO




present when the planning meeting occurred and was present for the postmortem
meeting. A rational trier of fact could have found that through her complicity in
soliciting Motley to commit aggravated murder, she was guilty of the purposeful
killing of Williams with prior calculation and design.
       {¶ 42} A rational trier of fact also could have found McFarland guilty of
being complicit in aggravated murder through R.C. 2923.03(A)(3), which
references the conspiracy statute, considering a person complicit who conspires
with another to commit an offense in violation of R.C. 2923.01. Since conspiracy
is a separate count, we discuss it separately, below.
                                    Conspiracy
       {¶ 43} McFarland was charged with conspiracy to commit aggravated
murder or murder under R.C. 2923.01. The act of conspiring to commit a crime is
a crime in and of itself; “it is no defense to a charge under this section that no
offense that was the object of the conspiracy was committed.” R.C. 2923.01(E).
The conspiracy statute provides:


               (A) No person, with purpose to commit or to promote or
       facilitate the commission of aggravated murder [or] murder, * * *
       shall do either of the following:
               (1) With another person or persons, plan or aid in planning
       the commission of any of the specified offenses;
               (2) Agree with another person or persons that one or more of
       them will engage in conduct that facilitates the commission of any
       of the specified offenses.
               (B) No person shall be convicted of conspiracy unless a
       substantial overt act in furtherance of the conspiracy is alleged and
       proved to have been done by the accused or a person with whom the
       accused conspired, subsequent to the accused’s entrance into the




                                           16
                               January Term, 2020




       conspiracy. For purposes of this section, an overt act is substantial
       when it is of a character that manifests a purpose on the part of the
       actor that the object of the conspiracy should be completed.


       {¶ 44} Having determined above that the evidence was sufficient to prove
that McFarland aided in planning or agreed that Motley would murder Williams,
satisfying R.C. 2923.01(A), the key portion of the statute for purposes of this part
of our analysis is R.C. 2923.01(B), the requirement of a substantial overt act in
furtherance of the conspiracy. “An indictment for conspiracy * * * must allege
some specific, substantial, overt act performed in furtherance of the conspiracy.”
State v. Childs, 88 Ohio St.3d 194, 724 N.E.2d 781 (2000), syllabus.
       {¶ 45} The state alleged three overt acts in the indictment supporting the
conspiracy count: (1) solicitation of Motley for murder, (2) providing or assisting
Motley in procuring the firearm, and (3) threatening Williams and/or Henderson
via a telecommunications system.
       {¶ 46} As discussed above in regard to the first alleged overt act, a juror
could reasonably find beyond a reasonable doubt that McFarland solicited Motley
to commit murder. McFarland was the conduit for information between Brownlee
and Motley, but she also was often with Motley while Brownlee was in jail, and
when she and Motley were discussing Henderson and Williams she told him that
they needed to be harmed. McFarland told Brownlee in one jail call that she had
spoken with Motley and that Motley said that Williams “had to be handled.”
McFarland knew that Motley had the gun that belonged to her and Brownlee and
texted Motley concerning its whereabouts. She was at the meeting in which the
determination was made to harm Williams, and she was there when the assailants
and Brownlee met after the killing. The fact that Brownlee solicited Motley for the
murder does not mean that McFarland was not part of requesting and paying for
Motley’s murder of Williams.




                                        17
                            SUPREME COURT OF OHIO




       {¶ 47} Regarding the second alleged overt act, there is sufficient evidence
to demonstrate that McFarland provided or assisted Motley in procuring the gun.
Motley referred to the murder weapon as “their” gun, meaning Brownlee and
McFarland’s gun. McFarland knew that Motley had retrieved the gun from the
hotel Brownlee and McFarland had been staying in when they were arrested.
Motley left it with Brownlee’s brother, Chris, but retrieved it later. McFarland did
not seek its return. There is no doubt that Brownlee and McFarland’s gun was the
murder weapon. A rational trier of fact, after viewing the evidence in a light most
favorable to the prosecution, could have found that the essential elements of the
conspiracy had been proved beyond a reasonable doubt, with the overt act being
the provision of the gun to Motley.
       {¶ 48} The third alleged overt act was proved beyond a reasonable doubt.
At trial, evidence was introduced of voicemail messages left by McFarland on
Henderson’s phone after Brownlee’s arrest. On the voicemails, McFarland can be
heard cursing at Henderson, telling her she knew what Williams and Henderson
had done and using an accusatory tone. McFarland’s words were slurred, but the
clear implication of the voicemails was that McFarland wanted to hold Williams
and Henderson responsible for Brownlee’s incarceration. She called them snitches.
Given what was said and the circumstances surrounding the calls, there would be
no reason for the voicemails other than to threaten Henderson and Williams. A
reasonable juror could find that the voicemails were threatening.         The calls
“manifest[] a purpose on the part of the actor that the object of the conspiracy
should be completed,” R.C. 2923.01(B). The statute requires that the overt act
occur after the accused entered into the conspiracy. The calls in question were
placed in the early morning hours of October 27, 2015. A juror could conclude that
the conspiracy was formed at the time of the October 25, 2015 jail call involving
Brownlee, Motley, and McFarland, when they first identified Williams and
Henderson as the people responsible for their arrests.




                                        18
                                January Term, 2020




       {¶ 49} A rational trier of fact, after viewing the evidence in a light most
favorable to the prosecution, could have found that the essential elements of the
conspiracy had been proved beyond a reasonable doubt, with the overt act being
the provision of the threatening voicemails.
                                 The other charges
       {¶ 50} McFarland was convicted of aggravated burglary under R.C.
2911.11(A)(1), which provides:


               (A) No person, by force, stealth, or deception, shall trespass
       in an occupied structure or in a separately secured or separately
       occupied portion of an occupied structure, when another person
       other than an accomplice of the offender is present, with purpose to
       commit in the structure or in the separately secured or separately
       occupied portion of the structure any criminal offense, if any of the
       following apply:
               (1) The offender inflicts, or attempts or threatens to inflict
       physical harm on another * * *.


A trespass under R.C. 2911.21(A) occurs when a person, without privilege to do
so, “[k]nowingly enter[s] or remain[s] on the premises of another.” It is no defense
to a charge of trespass “that the land or premises involved was owned, controlled,
or in custody of a public agency.” R.C. 2911.21(B). There was sufficient evidence
that McFarland violated R.C. 2911.11(A)(1) through her complicity with the
Motley brothers and Young. Viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found that the essential elements of
aggravated burglary had been proved beyond a reasonable doubt—specifically, that
through stealth or deception, the three assailants entered Williams’s apartment
building and put on masks and gloves in order to harm Williams and laid in wait




                                         19
                             SUPREME COURT OF OHIO




for him to emerge from his apartment, and when Williams did emerge, Motley
inflicted physical harm on Williams. McFarland was complicit in the endeavor and
therefore can be prosecuted under the aggravated-robbery statute even though she
was not in the apartment building when the murder occurred.
       {¶ 51} The remaining conviction was for kidnapping under R.C.
2905.01(A)(3), which states that “[n]o person by force [or] threat * * * shall * * *
restrain the liberty of [another] person” for the purpose of “inflict[ing] serious
physical harm on the victim.” The jury had before it video surveillance footage
from the hallway outside Williams’s apartment. The footage reveals Williams
walking down the hallway and Motley and Young emerging from behind the
stairwell door. Williams turns to see them walking toward him. He stops, and there
is a confrontation before the shooting. A reasonable juror could have determined
that Williams’s movements back toward his own apartment were restrained by
either threat of force or use of force by Motley and Young, for the purpose of
inflicting bodily harm upon Williams. Viewing the evidence in a light most
favorable to the state, a rational trier of fact could have found that the evidence
proved beyond a reasonable doubt that McFarland was guilty of committing
kidnapping due to her complicity with Motley and Young.
                                 CONCLUSION
       {¶ 52} Our duty in a sufficiency-of-the-evidence case is to determine
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found that the essential elements of the crime
had been proved beyond a reasonable doubt. McFarland was a central figure in the
killing of Robert Williams and a constant presence as Williams was targeted for
revenge, as plans to kill him were made, and as the assailants met after his killing.
She was in regular contact with Brownlee while he was in jail, reporting her
suspicions about the role Williams and Henderson played in her and Brownlee’s
arrests. She told Brownlee that Motley and others she had talked to thought




                                         20
                                 January Term, 2020




something had to be done about Williams and Henderson. She was in frequent
contact with Motley while Brownlee was in jail and knew that he had the gun she
shared with Brownlee, which would become the murder weapon. When Brownlee
got out of jail, she was present in the hotel room where the details of the plan against
Williams were hatched. And hours before the murder, she called Henderson and
attempted to mislead her about the imminent threat posed by Brownlee. After the
deed was done, Brownlee paid off Motley in drugs that were the product of the
criminal enterprise he participated in with McFarland, and McFarland was present
again in the hotel room where all the participants in Williams’s murder gathered
after-the-fact.
        {¶ 53} The record establishes that there was sufficient evidence on the four
counts for which McFarland was sentenced—aggravated murder, conspiracy,
aggravated burglary, and kidnapping—for a rational trier of fact to have determined
that the elements of those crimes had been proved beyond a reasonable doubt.
Accordingly, we affirm the judgment of the court of appeals.
                                                                   Judgment affirmed.
        DEWINE, J., concurs.
        DORRIAN, J., concurs as to the convictions for aggravated murder,
aggravated burglary, and kidnapping.
        O’CONNOR, C.J., and FRENCH and FISCHER, JJ., concur in judgment only.
        DONNELLY, J., dissents, with an opinion joined as to the conspiracy
conviction by DORRIAN, J.
        JULIA L. DORRIAN, J., of the Tenth District Court of Appeals, sitting for
STEWART, J.
                                _________________
        DONNELLY, J., dissenting.
        {¶ 54} When the United States Supreme Court set forth the sufficiency-of-
the-evidence analysis requiring reviewing courts to view the evidence “in the light




                                          21
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most favorable to the prosecution” when determining whether the evidence
presented is legally sufficient to support the conviction, Jackson v. Virginia, 443
U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), I do not believe the court
meant a searchlight should be used to uphold a criminal conviction. Yet, despite
the lead opinion’s attempt to find evidence to sustain appellant Sheila McFarland’s
convictions, they have come up empty-handed. For the reasons that follow, I
respectfully dissent.
                               TRIAL EVIDENCE
       {¶ 55} The lead opinion acknowledges that McFarland was not present
when Robert Williams was shot and killed as he exited his apartment on November
14, 2015. It nevertheless maintains that there was sufficient evidence to support
her convictions for conspiracy to commit murder and complicity in the associated
crimes. To support affirming these convictions, the lead opinion relies on particular
pieces of the state’s evidence while disregarding the uncontroverted testimony of
the state’s key witness. As I explain below, I do not believe that the evidence
establishes that McFarland had any participatory role in the crimes unquestionably
perpetrated by Eddie Brownlee, Ryan Motley, and Motley’s accomplices.
       {¶ 56} I will start with the evidence that the lead opinion barely
acknowledges: the trial testimony of Ryan Motley. As the lead opinion notes,
Motley, known also by the nickname “Chop,” went to Williams’s apartment
building with two confederates on the morning of November 14, 2015, and shot
Williams in the hallway of his apartment complex. Motley was indicted on all the
same charges that were brought against the other defendants, including McFarland.
       {¶ 57} Rather than face trial, however, Motley agreed on October 5, 2016,
to plead guilty to amended Count 1, which reduced the charge of aggravated murder
to murder, with the three-year gun specification for that charge retained, and Count
3, which charged conspiracy to commit murder, with the three-year gun
specification for that charge deleted; all remaining counts were dismissed. Further,




                                         22
                                 January Term, 2020




Motley was immediately required to give a proffer statement in which he detailed
what his testimony would be at the trials of Brownlee and McFarland. If Motley’s
testimony was not truthful and was not consistent with other known facts, the state
reserved the right to rescind the plea agreement and prosecute Motley on the
offenses as charged. Motley thereafter entered guilty pleas as described and was
sentenced to serve 18 years to life in prison.
          {¶ 58} Immediately after accepting Motley’s guilty pleas, the trial court
asked Motley what happened on November 14, 2015. In open court, Motley
admitted that he had approached Williams with his gun drawn and had shot
Williams as Williams appeared to be reaching for the gun. Motley disclosed that
Brownlee told him to “rough [Williams] up” because of Williams’s role in
Brownlee’s then-recent arrest on drug charges. Motley acknowledged that he had
initially obtained the gun from a hotel room that Brownlee had occupied, although
Brownlee was not present at the time.
          {¶ 59} Motley stated in his proffer that McFarland did not play any role in
Motley’s retrieval of “the hammer,” i.e., the gun. Motley stated that he did not talk
to McFarland about roughing up Williams or getting the gun. Motley said he had
no contact with McFarland prior to the commission of the November 14, 2015
crimes.
          {¶ 60} Brownlee was convicted in October 2016 on all but Counts 1, 7, and
9. When McFarland’s case came on for jury trial in February 2017, Motley was
called as a state’s witness and admitted to his role in murdering Robert Williams.
Motley testified that the day after Brownlee and McFarland’s October 25, 2015
arrest on drug charges, he went without their knowledge to the Willoughby, Ohio,
hotel that Brownlee had occupied in order to remove any drug-related evidence
before the police discovered it, so as to protect Brownlee and McFarland from
additional charges. Motley did not find any drugs but did find a gun under the
mattress. Motley took the gun from the hotel and gave it to Brownlee’s brother,




                                          23
                             SUPREME COURT OF OHIO




but he retrieved it from him 48 hours later and thereafter kept it until the day of the
murder.
       {¶ 61} Motley testified that following Brownlee’s release from jail on
November 10, 2015, and prior to the November 14, 2015 shooting, he and Brownlee
met at the Willoughby hotel and Brownlee told him what he wanted him to do.
Motley described the hotel room as being a suite that had a living area, a kitchen
area, a bedroom, and a bathroom. Motley testified that McFarland was not in the
area where the conversation between Brownlee and Motley occurred but instead
was in a different part of the hotel room.
       {¶ 62} Motley testified that it was his decision to go to Williams’s
apartment complex on the morning of November 14, 2015, with the gun. Later that
day, Motley told Brownlee, “It’s done.” At some point on the evening of the murder
or the next day, Motley met with Brownlee at the Willoughby hotel, while
McFarland was in the hotel suite’s bedroom with the door closed. Brownlee gave
Motley drugs valued at approximately $4,000 as an apparent reward.
       {¶ 63} Motley testified that he acted at only Brownlee’s direction. He
testified that McFarland did not play any role in the plan to retaliate against
Williams. And he testified that McFarland did not play any role in his obtaining
possession of the gun that he used to kill Williams.
       {¶ 64} I note here that despite having expressly reserved the right to rescind
Motley’s plea agreement if his testimony was not truthful or consistent with other
known facts, the state of Ohio did not rescind the plea agreement after Motley
provided his proffer statement and trial testimony.
       {¶ 65} Given that Motley’s testimony appears to exculpate McFarland from
the charges brought against her in this case, the lead opinion looks to other evidence
that supposedly establishes McFarland’s complicity and conspiratorial involvement
in these crimes. But even that other evidence does not demonstrate McFarland’s
participation in the charged crimes.




                                          24
                               January Term, 2020




       {¶ 66} In particular, the lead opinion relies on portions of the October 25,
2015 jail call from Brownlee to McFarland in which they discussed their belief that
Williams was a snitch and Brownlee ranted that he was going to “get him.” That
hardly establishes McFarland’s complicity or conspiratorial involvement in plans
to commit murder.
       {¶ 67} The lead opinion says that during that same call, “McFarland
brought Motley in on the call.” Lead opinion at ¶ 33. Specifically, the evidence
reflects that McFarland received the call while she was with Motley as a passenger
in his truck. After Brownlee learned that McFarland was with Motley, McFarland
handed the phone to Motley, at which time Brownlee told Motley, “Chop, I need
you to handle this.” Motley replied, “I already know.” Brownlee added, “Chop,
get [Williams], get those mother fuckers.” When their private conversation was
concluded, Motley handed the phone back to McFarland. There is no evidence that
McFarland heard anything that Brownlee said to Motley.
       {¶ 68} Later in that same call, Brownlee asked McFarland about “the
hammer.” McFarland told Brownlee that Motley had already retrieved the gun and
had given it to Brownlee’s brother. From this evidence, the lead opinion says that
McFarland “made it clear that she had had prior conversations with Motley” about
the gun. Lead opinion at ¶ 33. So what? Does an inquiry concerning the
whereabouts of a gun establish a conspiracy or complicity to commit murder? I
would not have thought so before today’s decision.
       {¶ 69} Toward the end of that same call, Brownlee told McFarland: “Tell
Chop when I get out I’m going to handle this.” Taken at face value, the implication
was that no one should do anything until Brownlee was released from jail—at
which time Brownlee, perhaps with Motley’s assistance, intended to handle the
matter himself. That hardly inculpates McFarland in conspiracy or complicity to
commit murder.




                                        25
                               SUPREME COURT OF OHIO




        {¶ 70} The lead opinion gives undue if not talismanic significance to the
fact that Motley, in the seven-page statement he wrote on October 16, 2015,
referred to the gun as “their” gun. His trial testimony sought to correct that
statement to reflect that the gun in fact was “his,” i.e., Brownlee’s, gun and not
“their” gun. In any case, is the offhand use of a personal pronoun in an unsworn
witness statement—with no showing of foundational knowledge to even make such
a declaration—conclusive proof of conspiracy or complicity to commit murder?
        {¶ 71} The lead opinion says that while McFarland worked with Motley to
sell drugs to finance Brownlee’s bail, “McFarland made clear to [Motley] that
Williams and Henderson had to be dealt with.” Lead opinion at ¶ 34.2 Regardless
of whether McFarland was angry with Williams and Henderson, the lead opinion
cannot point to any evidence indicating that she acted on that anger to cause harm
to them. Motley flatly stated that he did not talk to McFarland about roughing up
anyone and that she did not play any role in the planning of the events that occurred
on November 14, 2015.
        {¶ 72} The lead opinion further relies on a jail call between Brownlee and
McFarland in which McFarland said that Motley had said that Williams would
“have to be handled.” Putting hearsay analysis aside, I fail to see how that statement
could inculpate McFarland in conspiracy and complicity to commit murder. The
evidence was that Motley was the one who said that they would “have to be
handled” and that McFarland merely relayed what Motley said to Brownlee. Nor
do I interpret McFarland’s passive submission to Brownlee’s voluble rantings as
some form of silent incitement or encouragement to act.
        {¶ 73} Noting that “things moved quickly” once Brownlee was released
from jail on November 10, 2015, the lead opinion says, “McFarland was in the hotel


2. The lead opinion makes repeated references to McFarland’s involvement in drug dealings but
neglects to acknowledge that McFarland was acquitted of all charges she faced in the drug
trafficking case. See State v. McFarland, Cuyahoga C.P. No. CR-15-601477-B (May 22, 2017).




                                             26
                                January Term, 2020




room when Motley and Brownlee agreed that Motley would harm Williams.” Lead
opinion at ¶ 35. But as noted previously, Motley testified that the hotel room was
a suite with different areas and that McFarland was not in the area where Brownlee
and Motley had their conversation. In any case, proximity is not necessarily equal
to presence.
         {¶ 74} There was no evidence to suggest that McFarland had any
knowledge of Brownlee’s November 13, 2015 calls to Williams stating that
Brownlee was out of jail and would be coming for Williams and Henderson and
that they were going to “see their graves.” Henderson testified that McFarland was
not one of the four unidentified people who stood by their truck in the apartment’s
parking lot looking up at Williams’ window as he started cussing them out.
         {¶ 75} Henderson testified that she received a telephone call from
McFarland early on the morning of November 14, 2015, inquiring how they were
doing. Henderson testified that McFarland had denied that Brownlee had made any
threatening calls to Henderson and Williams but that McFarland had ended the call
when she saw Brownlee approaching. There is no evidence that either Brownlee
or Motley were aware of McFarland’s call to Henderson or that it had any effect on
Motley’s actions. To infer that that phone call proves McFarland’s complicity in
the murder scheme requires pure speculation and conjecture. I fail to see how this
evidence substantiates McFarland’s supposed involvement when no other evidence
establishes her participatory role in any plan.
         {¶ 76} As to the facts of the actual killing on November 14, 2015, the lead
opinion does not identify any evidence that shows McFarland’s involvement in the
crime.
         {¶ 77} With regard to what it calls the postmortem meeting at the
Willoughby hotel, the lead opinion says “McFarland was present again,” lead
opinion at ¶ 37; however, the lead opinion once again ignores Motley’s
uncontroverted testimony that McFarland was in a different area—behind a closed




                                          27
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bedroom door—while Brownlee and Motley completed their business. Indeed, the
lead opinion takes liberties with the record when it describes a meeting with all the
confederates taking place after the murder. In truth, the testimony on this was
ambiguous at best. What is not ambiguous, however, is that the state’s star witness
once again exculpated McFarland. While Motley was being questioned about
previous testimony elicited during a prior trial, the following exchange occurred:


               Q: All right. And do you remember testifying about the
       meeting where you met with Mr. Brownlee and Miss McFarland
       after the murder?
               A: Can you repeat the question?
               Q: Do you remember the meeting with Mr. Brownlee and
       Miss McFarland after the murder?
               A: Do I remember talking to them?
               Q: Well, do you remember that meeting, first of all?
               A: Yes.
               Q: And was Eddie Brownlee and Sheila McFarland both
       present?
               A: When I had the meeting?
               Q: Yes.
               A: See, that’s why I want you to be more specific, because
       you’re saying having a meeting, like me and everybody is in here
       right now, we’re talking, everybody can hear, it’s basically like
       we’re having a meeting. So basically I’m talking to you and I’m
       talking to everybody else in the courtroom. If she’s behind that door
       right there, I don’t know if she can hear me or not. So she’s not
       present to the meeting.




                                         28
                                January Term, 2020




               Q: Well, how about this. Why don’t you tell me what you
       meant by this testimony:
               ***
               Question: “Okay. And who was there when you met up with
       him now the second time after the hotel room?”
               Your answer was: “Who was with him?”
               Question: “Right. Who was with him.”
               Answer: “Sheila.”
               Question: “All right. Him and Sheila in tandem. And who
       was with you?”
               Answer: “The same two parties, Rahkee and my brother
       Raymond.”
               Okay, Is that all true or not?
               A: Yes. But you’re still missing what I’m trying to say. She
       can be there, but listening to the conversation is different.


Motley appears fixated on clarifying that McFarland was not present. No follow-
up clarifying questions were asked about the meeting or, in particular, the presence
of the other assailants. So regardless of what Motley said about the accomplices’
presence in prior testimony—for which we have no context or understanding of the
line of questioning—his testimony in McFarland’s trial did not expressly say that
they were present at a meeting after the murder.
       {¶ 78} The lead opinion says this was sufficient evidence to convict
McFarland of aggravated murder based on her aiding or abetting another in
committing the offense, R.C. 2923.03(A)(2), or soliciting or procuring another to
commit the offense, R.C. 2923.03(A)(1). I cannot agree.
       {¶ 79} The lead opinion says McFarland “incited [Motley] to harm the
informants.” Lead opinion at ¶ 39. How? I do not see how McFarland did anything




                                         29
                             SUPREME COURT OF OHIO




to cause Williams’s murder, either by aiding or abetting or by soliciting or
procuring.
       {¶ 80} The lead opinion says McFarland did not ask Motley to return the
gun to her before the murder. Is that now proof of conspiracy and complicity to
commit murder?
       {¶ 81} The lead opinion says McFarland discouraged the irate Brownlee
from discussing Williams on the jail telephone. Is that also proof of conspiracy and
complicity to commit murder?
       {¶ 82} Faced with Motley’s uncontroverted trial testimony that McFarland
had no involvement whatsoever in the plan of retaliation that Brownlee directed
Motley to execute against Williams, the lead opinion says that the jury could
disbelieve his testimony and conclude that McFarland was involved. But under
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668 (1997), an appellate court’s duty is to examine the
evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. Id.
at paragraph two of the syllabus. Today’s lead opinion turns Jenks on its head by
determining whether the evidence if disbelieved, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt.
       {¶ 83} In my view, there must first be evidence to substantiate the elements
of the offense before adverse inferences can be drawn from other evidence. Here,
the evidence utterly failed to establish McFarland’s participatory role in the crimes
committed against Williams. Indeed, as to the specific charge of conspiracy, the
evidence failed to show any overt act by McFarland to promote or facilitate the
commission of aggravated murder or murder.




                                         30
                                January Term, 2020




                                  CONCLUSION
       {¶ 84} It is surprising to me that this court accepted discretionary
jurisdiction in this case only to end up affirming McFarland’s conviction. This case
presents no novel issue of law. We are not establishing new law or resolving
conflicts in old law. Instead, the lead opinion acknowledges that the question here
is one routinely addressed by appellate courts across the state. In that respect, this
case is unremarkable.
       {¶ 85} At the same time, I do believe that the case presents an issue of great
public interest that the lead opinion ignores.      Contrary to the lead opinion’s
assertion that “the question we face does not concern the effect of a conviction
based upon insufficient evidence,” (emphasis sic) lead opinion at ¶ 22, I do not see
how we can justly ignore the effect of such a conviction here—a sentence of life in
prison without the possibility of parole.
       {¶ 86} This is a serious case involving the death of a man and the just
punishment of those responsible for the crime. The significant issues presented
concern the proper use of circumstantial evidence and the reasonable inferences
that can be drawn from the testimony of witnesses in order to determine whether
the evidence is legally sufficient to obtain a conviction such that its corresponding
sentence is commensurate with the defendant’s criminal culpability for the crime.
       {¶ 87} The legitimacy of the administration of criminal justice is under
scrutiny now perhaps more than ever. I believe that some of the biggest threats to
the public’s confidence in the justice system are wrongful convictions, disparate
treatment, and sentences that are inconsistent with criminal culpability.
       {¶ 88} McFarland, believing there was no compelling evidence that
supported the state’s indictments, chose to exercise her constitutional right to trial.
Despite a paucity of evidence, McFarland was convicted. By exercising her
constitutional right to trial, McFarland turned down a plea agreement that could
have resulted in a three-year prison sentence. While the jury was deliberating, the




                                            31
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state again offered McFarland a plea deal, which she also turned down. In my
experience, this is a highly unusual step for the state to take after a case has been
submitted to the jury. After her convictions, she ended up with the most severe
sentence short of the death penalty, while the individual who actually pulled the
trigger and killed the victim in this case has the opportunity to be released in 18
years.
          {¶ 89} At sentencing the trial court stated:


          And when there was a plea bargain offer just before trial, you rejected it.
          When there was a plea bargain offer when the jury was deliberating you
          rejected it because, apparently, your attorneys told me that you, quote, made
          your peace with God, closed quote. Well, now you have to make your peace
          with the state of Ohio. Okay?


The court proceeded to sentence her to a life sentence without the possibility of
parole.
          {¶ 90} Sheila McFarland chose to place her trust in the criminal justice
system, and it failed her, allowing a conviction to stand based not on evidence but
on innuendo, speculation, and conjecture. This court—provided with a final
opportunity to remedy this injustice—perpetuates the failure. I dissent.
          DORRIAN, J., concurs in the foregoing opinion as to the conspiracy
conviction.
                                  _________________
          Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van and Callista Plemel, Assistant Prosecuting Attorneys, for appellee.
          Mark A. Stanton, Cuyahoga County Public Defender, and Jeffrey M.
Gamso and Paul Kuzmins, Assistant Public Defenders, for appellant.
                                  _________________




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