[Cite as State v. Martin, 2012-Ohio-1519.]



                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       GALLIA COUNTY

STATE OF OHIO,                        :    Case No. 09CA19
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
BRYNN K. MARTIN,                      :
                                      :    RELEASED 03/21/12
                                      :
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Harry K. Reinhart, Reinhart Law Office, Columbus, Ohio, for appellant.

C. Jeffrey Adkins, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for appellee.
______________________________________________________________________
Harsha, J.1

        {¶1}     Brynn K. Martin appeals his conviction for robbery arguing that the

conviction is not supported by sufficient evidence. Specifically, Martin claims that the

record contains no evidence from which a rationale juror could conclude that he

committed all the necessary elements of robbery. We agree. The state failed to prove

beyond a reasonable doubt that Martin personally inflicted, attempted to inflict, or

threatened to inflict physical harm on the victim. Therefore, we conclude there was

insufficient evidence to support his conviction as a principal offender. And because the

jury was not given an instruction on complicity, Martin could not be convicted for aiding

and abetting. Accordingly, we reverse his conviction.

                                              I. FACTS

1
  Although this appeal was originally assigned to the court on September 30, 2010, the case was
reassigned to Judge Harsha on September 20, 2011.
Gallia App. No. 09CA19                                                                       2

       {¶2}   Martin was indicted by the Gallia County Grand Jury and charged with the

aggravated murder, murder, aggravated robbery and robbery of William Sowards. His

case proceeded to a jury trial.

       {¶3}   At trial Karen Sowards, the victim’s ex-wife, testified that on November 17,

2006, she went to Mr. Sowards’ home because he hadn’t answered the telephone in

several days. When she arrived his front door was open and Mr. Sowards was dead on

the living room floor. She testified that she tried to call 911 from his phone, but it was

not working. She flagged down a motorist and asked the motorist to call the police.

She then waited at the house until the police arrived. She further stated that when she

discovered the body, she wasn’t aware of any money or Oxycontin pills missing from

Mr. Sowards’ home.

       {¶4}   Jonathon Jenkins, a special agent with the Ohio Bureau of Criminal

Identification and Investigation (BCI), testified that he processed the crime scene,

including documenting the condition of Mr. Sowards’ home and searching for evidence.

He stated that he found no evidence of forced entry when he arrived at the scene,

where he found Mr. Sowards deceased, lying on his stomach in the living room. He

observed a “substantial amount” of blood in the room, and testified that there were

“impact patterns” of blood spatter behind the couch in the living room. He explained

that these types of blood spatter patterns can result from being hit in the head with a

blunt object. Jenkins also stated that the couch cushions were removed, as were the

drawers from the dresser in the bedroom. He admitted, however, that there was no

connection between Martin and the physical evidence found at Mr. Sowards’ home,

although he stated this is a “very common” occurrence in criminal cases.
Gallia App. No. 09CA19                                                                      3

       {¶5}   He further testified that on May 21, 2008, he accompanied Special Agent

Willis to interview Martin about his involvement in the case. Jenkins stated that during

the interview Martin claimed he was in a drug treatment facility at the time of the murder

and “didn’t admit to anything” involving Mr. Sowards’ homicide.

       {¶6}   Special Agent Jenkins also stated that on November 11, 2008, he again

went with Special Agent Willis to interview Martin and discuss a possible plea bargain.

During this interview, Jenkins testified that Martin said he knew Shawn Lawson and

admitted to “making a plan.” Martin told Jenkins that “he was the driver for Mr. Lawson

on the night of the murder.”

       {¶7}   On cross examination, Special Agent Jenkins testified that he retrieved

two wooden clubs from Mr. Sowards’ home, one of which was found under Mr.

Sowards’ left leg. He testified that he believes Mr. Sowards was struck at least twice

with a blunt object, possibly the wooden club found at the scene. Jenkins stated that

the club found under Mr. Sowards’ left leg had blood on it, which he submitted to the

BCI for DNA analysis. He testified that the DNA present on the club did not match

Martin’s DNA. In addition Special Agent Jenkins testified that the analysis of the

substance found under Mr. Sowards’ fingernails did not match Martin’s DNA.

       {¶8}   Next Matthew Eurrell testified that while incarcerated at the Gallia County

Jail for theft and receiving stolen property, he had a conversation with Martin about the

Sowards’ homicide. He testified that Martin told him that he and “another guy had went

and robbed this * * * guy like two or three months in a row and then while he was in

[drug treatment] that guy ended up murdered and he believed that it was the other guy”

that murdered Mr. Sowards. Eurrell believed that Martin told him they took Oxycontin

pills during the two to three robberies before the murder. Eurrell testified, however, that
Gallia App. No. 09CA19                                                                       4

Martin denied being present during the robbery and murder of Mr. Sowards in

November 2006.

       {¶9}   Dr. Pandey, the former Deputy Coroner for Montgomery County, testified

as an expert in forensic medicine. He stated that he performed the autopsy on Mr.

Sowards and explained that Mr. Sowards suffered injuries to the left side of his head,

his hands and leg. Specifically, Dr. Pandey described the injuries to Mr. Sowards’ head

as “associated with a crushing effect, depression of the skull.” He summarized that the

cause of the death “was blunt force trauma to the head” and the manner of death was

homicide. He also stated that he took fingernail scrapings from Mr. Sowards’ right hand

and that the injuries to his right hand could be consistent with defensive wounds.

       {¶10} Larry Willis, a special agent with the BCI, testified that he went to Orient

Correctional Facility with Special Agent Jenkins on May 21, 2008, to interview Martin

about Mr. Sowards’ homicide. During the interview Willis stated that Martin initially

denied involvement or knowledge of Mr. Sowards’ homicide. Initially, Martin said he

was in a drug treatment facility at the time of the murder. When Willis informed Martin

that he checked the dates and Martin wasn’t in treatment, Martin admitted that he knew

Mr. Sowards and used to buy drugs from him through Shawn Lawson. Martin told

Willis, that he would contact Shawn Lawson and they would go to Mr. Sowards’ house

together to buy the drugs. Martin would stay in the car and Lawson would go into the

house. After 30-45 minutes, Lawson would return from Mr. Sowards’ house and come

out with the drugs, usually Oxycontin. They would then split the pills. Willis stated that

Martin denied ever making a face to face drug purchase from Mr. Sowards, and said he

always went through Lawson.
Gallia App. No. 09CA19                                                                              5

       {¶11} Special Agent Willis further testified that he later went back to the prison

with Special Agent Jenkins. He stated that Rhonda Oiler was also there and she met

with Martin. After she spoke to Martin, he was brought into a separate room with

Special Agents Willis and Jenkins to discuss a possible plea agreement. While waiting

for some paperwork, Willis testified that Martin said “he had known about the plan for a

long time, because Shawn Lawson had approached him several times about helping

him.” He also testified that Martin admitted that “he was the driver on the night of the

Sowards homicide, but he did not actually enter the residence.”

       {¶12} Next Rhona Oiler, Martin’s sister-in-law, testified about her relationship

with Martin. She stated that beginning in March 2008, the two began an intimate

relationship and subsequently Martin was sent to prison for a probation violation. While

he was in prison, she spoke to him on the telephone a couple of times per day.2 Oiler

testified that in all the phone calls with Martin, he continuously said that “he didn’t do it,”

which she took to mean that he didn’t murder Mr. Sowards. She also believed that he

knew something about the crime. She later asked Special Agent Chad Wallace to take

her to see Martin in prison because she wanted him to accept a plea bargain. During

the visit, she testified that Martin told her for the first time that “he had taken Shawn out

there and he drove and that Shawn came running out and said let’s go, let’s go, things

went wrong, let’s go.” Martin continued that they then left and Lawson gave him half of

the pills. Oiler further testified that Martin explained that he drove the car and Shawn

beat Mr. Sowards to death, but he always denied being in Mr. Sowards’ home and


2
 During Rhonda Oiler’s testimony, the state played several recorded phone conversations between Oiler
and Martin. These tapes were not entered into evidence and we have no record of the contents on
appeal.
Gallia App. No. 09CA19                                                                      6

killing him. Oiler admitted that she also went to Mr. Sowards’ house in the past to buy

pills with Martin. And contrary to Martin’s claim he had never been inside, she testified

that Martin went inside Mr. Sowards’ house to buy them alone.

       {¶13} Finally, Detective Chad Wallace testified that he was in charge of the

Sowards’ homicide for the Gallia County Sheriff’s Office. He testified that he received a

letter from Eurrell stating that he wanted leniency in his case in exchange for

information about an unsolved homicide. Detective Wallace interviewed Eurell and he

described a conversation with Martin and said that Martin told him he committed at least

three robberies with Shawn Lawson during the three months prior to Mr. Sowards’

murder.

       {¶14} Detective Wallace then interviewed Martin, who said he was in drug

treatment at the time of Mr. Sowards’ murder and did not know anything about the

homicide. Wallace stated that he already knew Martin was not in drug treatment at the

time of the homicide. Martin decided not to waive his Miranda rights and Detective

Wallace ended the interview.

       {¶15} On September 10, 2008, Detective Wallace testified that Oiler called him

and asked if he would take her to see Martin. He testified that she told him Martin was

going to be truthful and she wanted to talk to him about a plea deal so he could get out

of prison. He took her to see Martin the following morning.

       {¶16} He admitted on cross examination, that there is no physical or scientific

evidence connecting Martin to the crime. Further, Detective Wallace testified that he

obtained DNA samples from a number of individuals connected with the case, including

Lawson and Martin, and they were unable to match the DNA found under Mr. Sowards’

fingernails to any of these individuals.
Gallia App. No. 09CA19                                                                    7

       {¶17} Following the close of evidence, the state requested a jury instruction on

complicity for all four counts of the indictment, which charged Martin as the principal

offender. The trial court denied the state’s request. The state then filed a motion to

amend the indictment and bill of particulars to include complicity on all four counts. The

court overruled the motion and instructed the jury as to the charged counts in the

indictment.

       {¶18} The jury acquitted Martin of aggravated murder, murder and aggravated

robbery and found him guilty of robbery, in violation of R.C. 2911.02(A)(2). The trial

court sentenced him to eight years in prison. This appeal followed.

                             II. ASSIGNMENTS OF ERROR

       {¶19} Martin raises four assignments of error for our review:

       {¶20} I. “THE CONVICTION FOR ROBBERY WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE AND BASED UPON EVIDENCE INSUFFICIENT AS A

MATTER OF LAW.”

       {¶21} II. “ “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE

OF APPELLANT BY ADMITTING EVIDENCE OF UNCHARGED MISCONDUCT OVER

DEFENSE OBJECTION FOR THE PURPOSE OF PROVING BAD CHARACTER AND

THE DEFENDANT’S ACTION IN CONFORMITY THEREWITH.”

       {¶22} III. “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN

INSTRUCTING THE JURY ON ROBBERY.”

       {¶23} IV. “THE DEFENDANT’S RIGHTS UNDER THE STATE AND FEDERAL

CONSTITUTION TO THE EFFECTIVE ASSISTANCE OF COUNSEL WERE

VIOLATED WHERE TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS
Gallia App. No. 09CA19                                                                      8

EVIDENCE PRIOR TO TRIAL, AND WHERE TRIAL COUNSEL FAILED TO OBJECT

TO THE TRIAL COURT’S JURY INSTRUCTION ON ROBBERY.”

              III. SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE

       {¶24} In his first assignment of error, Martin argues that his conviction is against

the manifest weight of the evidence and that insufficient evidence exists to support his

conviction. We will first consider whether there is sufficient evidence to support Martin’s

conviction.

       {¶25} “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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph two of

the syllabus (superseded by statute and constitutional amendment on other grounds).

       {¶26} This test raises a question of law and does not allow the appellate court to

weigh the evidence. State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, at ¶39. A

sufficiency of the evidence challenge tests whether the state’s case is legally adequate

to go to a jury in that it contains prima facie evidence of all of the elements of the

charged offense. See Portsmouth v. Wrange, 4th Dist. No. 08CA3237, 2009-Ohio-

3390, at ¶36.

       {¶27} A conviction that is based on legally insufficient evidence constitutes a

denial of due process. See State v. Thompkins (1997), 78 Ohio St.3d 380, 386-87, 678

N.E.2d 541. And “the Double Jeopardy Clause precludes retrial once the reviewing
Gallia App. No. 09CA19                                                                                  9

court has found the evidence legally insufficient to support a conviction.” (Internal

quotation marks omitted.) Tibbs v. Florida (1982), 457 U.S. 31, 40-41, 102 S.Ct. 2211,

72 L.Ed.2d 652; see also Thompkins at 387.3

         {¶28} Martin specifically argues that state failed to present evidence from which

a rationale juror could conclude that he committed all the necessary elements of

robbery, including that he “inflicted, attempted to inflict or threatened to inflict physical

harm on another.” He claims the only direct evidence of his involvement with the crime

presented by the state was the testimony of Oiler, who testified that Martin told her he

drove to the scene, but never went into the house. Because the jury was not instructed

on complicity, he claims there was insufficient evidence to convict him of robbery. We

agree.

         {¶29} R.C. 2911.02(A)(2) states in relevant part: “No person, in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense, shall * *

* [i]nflict, attempt to inflict, or threaten to inflict physical harm on another[.]”

         {¶30} The record reveals that the only connection between Martin and the

robbery of Mr. Sowards was the testimony of Special Agents Jenkins and Willis, and

that of Rhonda Oiler. Special Agent Jenkins testified that Martin admitted that he knew

Shawn Lawson and that they made “a plan.” He also stated that Martin admitted he

was the driver for Lawson on the night of Mr. Sowards’ murder. Special Agent Willis

testified that Martin also admitted that Lawson had approached him about helping and

he had known about the plan for a long time. However, there was no testimony

3
  There is a notable distinction between a reversal based upon insufficient evidence and one resting upon
the weight of the evidence. Thompkins at 387. In contrast, a finding that the jury’s verdict was against
the weight of the evidence does not preclude a retrial under the Double Jeopardy Clause. Tibbs at 43;
see also Thompkins at 387.
Gallia App. No. 09CA19                                                                        10

presented by the state explaining what “the plan” actually consisted of. Willis also

testified that Martin admitted that he was the driver, but he claimed he never actually

entered Mr. Sowards’ home.

       {¶31} Oiler testified that during a visit with Martin in prison, he told her that he

drove Lawson to Mr. Sowards’ house to buy drugs and that Lawson went into the house

alone. Lawson then came running out saying something went wrong and they needed

to leave. She also testified that Martin admitted that Lawson murdered Mr. Sowards,

but denied ever entering the house during the robbery and murder.

       {¶32} There was also testimony presented by the state that Martin was excluded

as the possible source of DNA under Mr. Sowards’ fingernails and no other physical

evidence connected him to the crime scene. The record reveals that Martin consistently

denied ever being in Mr. Sowards’ house the night of the murder. Although Eurrell

testified that Martin admitted to robbing Mr. Sowards’ on previous occasions with

Lawson, there was no testimony presented that he was inside the house on the night of

the murder.

       {¶33} In summary, the state failed to present any testimony or physical evidence

showing that Martin entered Mr. Sowards’ home on the date in question and inflicted,

attempted to inflict, or threatened to inflict physical harm upon him. Even after viewing

the evidence in a light most favorable to the prosecution, we conclude no rational trier of

fact could have found beyond a reasonable doubt that Martin committed all the

necessary elements of the offense. Thus, the evidence in this case does not support

Martin’s conviction for robbery as the principal offender.

       {¶34} However, the evidence does appear to support a conclusion that Martin

was complicit in the robbery. A defendant is complicit in an offense by aiding and
Gallia App. No. 09CA19                                                                    11

abetting if he supports, assists, encourages, cooperates with, advises, or incites the

principal in the commission of the crime and shares the criminal intent of the principal.

State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, at syllabus. Nevertheless,

“appellate courts cannot consider evidence of a defendant’s complicity in a criminal act

if the jury was not instructed on complicity since this would violate the defendant’s Sixth

Amendment right to a jury trial.” State v. Peterson, 7th Dist. No. 06CO50, 2007-Ohio-

4979, at ¶23. As a result, we are limited to considering whether the evidence supports

Martin’s conviction as the principal offender. See id.

       {¶35} The state relies upon the testimony of Oiler and Eurrell that Martin and

Lawson had both bought and stolen drugs from Mr. Sowards in the months before his

homicide. It argues that from this testimony, it is reasonable to infer that “the plan”

Martin admitted to having with Lawson was again to rob Mr. Sowards and the jury was

free to reject his statement that he stayed in the car. The state also argues that

because the record shows there were two wooden clubs found in Mr. Sowards’ home,

the jury could infer that there were two people threatening him with clubs and the

second person was Martin. However, this is a far reaching inference, and not one that

we believe any rational trier of fact could have used as a basis to find beyond a

reasonable doubt that Martin acted as the principal offender and entered Mr. Sowards’

home at the time of his murder.

       {¶36} In summary, there is insufficient evidence to conclude beyond a

reasonable doubt that Martin acted as the principal offender, entered Mr. Sowards’

home and inflicted, attempted to inflict, or threatened to inflict physical harm upon him,

while committing a theft offense. Accordingly, we sustain Martin’s first assignment of

error and reverse the judgment of the Gallia County Court of Common Pleas. Martin’s
Gallia App. No. 09CA19                                                            12

remaining assignments of errors are rendered moot and we need not address these

issues. See App.R. 12(A)(1)(c).

                                                         JUDGMENT REVERSED
                                                        WITH INSTRUCTIONS TO
                                                    DISCHARGE THE APPELLANT.
Gallia App. No. 09CA19                                                                      13

                                    JUDGMENT ENTRY

     It is ordered that the JUDGMENT IS REVERSED WITH INSTRUCTIONS TO
DISCHARGE THE APPELLANT. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Gallia
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents.



                                            For the Court



                                            BY: ________________________
                                                William H. Harsha, Judge


                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
