[Cite as State v. Mays, 2013-Ohio-1952.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2012-05-038

                                                  :            OPINION
   - vs -                                                       5/13/2013
                                                  :

DARRELL MAYS, JR.,                                :

        Defendant-Appellant.                      :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2011CR0658



D. Vincent Faris, Clermont County Prosecuting Attorney, David H. Hoffmann, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

William F. Oswall, Jr., 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for defendant-
appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Darrell Mays, Jr., appeals his conviction in the Clermont

County Court of Common Pleas for aggravated robbery. For the reasons discussed below,

we affirm appellant's conviction.

        {¶ 2} On July 28, 2011, appellant was indicted on one count of aggravated robbery in

violation of R.C. 2911.01(A)(1), with a firearm specification. The charge arose out of
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allegations that appellant planned and encouraged the November 6, 2009 robbery of

Thorntons gas station in Miami Township, Ohio, provided a handgun to be used during the

commission of the robbery by his associates, Steven Rider and Derek Carpenter, and shared

in the proceeds obtained from the robbery.

        {¶ 3} A jury trial was held in April 2012. At trial, the state sought to prove that

appellant was complicit in the commission of the November 6, 2009 aggravated robbery.1
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Rider testified on behalf of the state in exchange for a lesser charge. His testimony revealed

that in November 2009, appellant and appellant's girlfriend, Angela Hyden, lived together in

an apartment complex "right down the road" from Thorntons gas station. Rider explained he

often "hung out" with appellant and Carpenter at appellant's home, and on the evening of

November 5, 2009, he, appellant, Carpenter, Hyden, and a friend named "Demetri" were in

appellant's apartment "drinking, smoking weed, and partying."

        {¶ 4} Rider further testified that he did not know who planned the robbery, but on the

night the robbery occurred, Rider saw Carpenter exit appellant's bedroom looking "flustered."

Appellant walked by Carpenter and told him "not to puss out." Rider was then told by

Carpenter of the plan to rob Thorntons gas station.

        {¶ 5} Rider testified that later in the evening, he again heard appellant tell Carpenter

that "if he [Carpenter] was going to do it he needed not to puss out. He needed to just go

and get it done." Carpenter then went into appellant's bedroom and retrieved from a closet a

gun owned by Hyden. Rider testified that although the gun was owned by Hyden, appellant




1. "The clear and unambiguous language of R.C. 2923.03(F) states that a charge of complicity may be stated in
terms of the complicity statute, R.C. 2923.03, or in terms of the principal offense." State v. Wagers, 12th Dist.
No. CA92-11-231, 1993 WL 369240, *2 (Sept. 20, 1993). See also State v. Benson, 12th Dist. No. CA2004-10-
254, 2005-Ohio-6549, ¶ 29; State v. Tumbleson, 105 Ohio App.3d 693, 697 (12th Dist.1995).

2. In exchange for Rider's cooperation and testimony, the state agreed to amend Rider's original charge of
aggravated robbery (a first-degree felony), with a firearm specification, to a charge of robbery (a third-degree
felony), with no firearm specification.
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"most definitely" controlled the gun, and if people wanted to use or handle the gun they would

"usually" ask appellant's permission.

        {¶ 6} Around midnight, Carpenter, Rider, Demetri and another unnamed individual

drove to the gas station with the intention of robbing the store, but they abandoned the plan

as there were too many customers present. The group returned to appellant's apartment

where they continued partying. Around 3:00 a.m., Carpenter and Rider left on foot to rob the

gas station. Rider testified that during the robbery, Carpenter held the gun taken from

appellant's apartment to the gas station's clerk's head. After taking money out of two

separate cash registers, Carpenter and Rider fled the store and went back to appellant's

apartment. Rider testified that when he and Carpenter got back to appellant's apartment,

appellant "kind of looked surprised that we actually did it. * * * And he kind of looked at us

funny when we sat the bag of cash on the bed." Rider stated that appellant then grabbed the

bag of cash, counted the money from the robbery, and divided the money three ways, with

appellant getting an "even share." Rider testified that the day after the robbery, appellant

admonished Rider and Carpenter "to make sure [to] keep quiet about it [the robbery]."

        {¶ 7} Detective Robert Bradford of the Miami Township Police Department also

testified at trial. Bradford testified he investigated the robbery at Thorntons, and during the

course of his investigation, he spoke with Rider, Carpenter and appellant. Although Rider

had acknowledged appellant's role in "setting up" the robbery, appellant denied any
                                3
involvement in the robbery.         Appellant claimed that he was "not around" when Rider and


3. The following discussion took place between Rider and Bradford regarding appellant's role in planning the
robbery:
                DET. BRADFORD: Tell me. I already know it. You know I'm right. You know
                where I'm at, right? I mean, would you at least tell me am I right or wrong? Was
                it at Angie's house, and it was her boyfriend, [Mays] that was setting it up? I
                don't even - - at least tell me if I'm right or wrong or wrong [sic]. I mean - -

                MR. RIDER: Right.

                DET. BRADFORD: Okay. That's what I figured. * * *
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Carpenter planned the robbery as he was in the back of the apartment with Hyden. He

further claimed that he did not let anyone borrow the gun kept in his and Hyden's apartment,

and if the gun had been used, "someone had to steal it." Finally, appellant told Bradford that

he did not get any money or proceeds from the robbery.

        {¶ 8} Bradford testified that Hyden's gun had been recovered from appellant's

apartment. Bradford explained that the gun recovered, a black and silver SCCY Industries 9

mm handgun, did not have any latent prints of value and appeared to have been wiped

down. In comparing the gun recovered from appellant's apartment to photographs taken

from surveillance video of the robbery, Bradford testified that "I have not found any

differences between this gun here [the recovered gun] and that gun that I could see in the

video." Bradford did admit, however, that there was no way to positively identify the gun

taken from appellant's apartment as the gun in the surveillance video. He further admitted

that a number of firearm manufacturers produce black and silver guns that look similar to the

weapon taken from appellant's apartment.

        {¶ 9} On April 6, 2012, the jury found appellant guilty of complicity to aggravated

robbery.4 Appellant filed a Crim.R. 29(C) motion to set aside the verdict and for judgment of

acquittal, which was denied by the trial court on May 8, 2012. Appellant was subsequently

sentenced to five years in prison.

        {¶ 10} Appellant now appeals, raising three assignments of error. For ease of

discussion, appellant's assignments of error will be addressed together.

        {¶ 11} Assignment of Error No. 1:

        {¶ 12} APPELLANT'S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE.




4. The jury found appellant guilty of complicity to aggravated robbery without the specification. The record
demonstrates that although the trial court instructed the jury on the firearm specification, it inadvertently omitted
the firearm specification interrogatory from the verdict form.
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       {¶ 13} Assignment of Error No. 2:

       {¶ 14} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 15} Assignment of Error No. 3:

       {¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

OVERRULING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF

THE OHIO RULES OF CRIMINAL PROCEDURE.

       {¶ 17} In his assignments of error, appellant argues the trial court erred by denying his

Crim.R. 29(C) motion for acquittal, his conviction was not supported by sufficient evidence,

and his conviction was against the manifest weight of the evidence. Specifically, appellant

argues the state did not meet its burden in proving appellant was complicit to aggravated

robbery as the state's "whole case rested on the testimony of Rider," who provided vague,

speculative, and incomplete testimony. Appellant contends that in finding him guilty, the "trier

of fact clearly lost its way because Rider was an admitted liar with no credibility."

       {¶ 18} Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty verdict and

enter a judgment of acquittal. State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 9

(12th Dist.). "This court reviews a trial court's decision on a Crim.R. 29(C) motion for

acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim."

Id.; State v. Clements, 12th Dist. No. CA2009-11-277, 2010-Ohio-4801, ¶ 17; State v.

Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, ¶ 26.

       {¶ 19} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); Grinstead at ¶ 10.

When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate

court examines the evidence in order to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.
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Paul, 12th Dist. No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry

is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶ 20} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. No. CA2011-09-177, 2012-

Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the

evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Graham, 12th Dist. No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the

evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in

the best position to judge the credibility of witnesses and determine the weight to be given to

the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th

Dist.). "The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction." Id., citing

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).               Furthermore, "[a] unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is required

to reverse a judgment on the weight of the evidence in a jury trial." Id., citing Thompkins at

389.

       {¶ 21} "Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency." State v. Hart, 12th Dist. No. CA2011-03-008, 2012-Ohio-1896, ¶ 43, citing
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Graham at ¶ 67. Accordingly, a determination that a conviction is supported by the weight of

the evidence will also be dispositive of the issue of sufficiency. Id.

       {¶ 22} Appellant was convicted of complicity to aggravated robbery in violation of R.C.

2911.01(A)(1), which provides:

              (A) No person, in attempting or committing a theft offense, as
              defined in section 2913.01 of the Revised Code, 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.

       {¶ 23} Ohio's complicity statute, R.C. 2923.03(A)(2), states in pertinent part that "[n]o

person, acting with the kind of culpability required for the commission of an offense, shall * * *

[a]id or abet another in committing the offense." In order 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." State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, syllabus. Such intent

may be inferred from the circumstances surrounding the crime, including presence,

companionship, and conduct before and after the offense is committed. Id.; State v. Mota,

12th Dist. CA2007-06-082, 2008-Ohio-4163, ¶ 20. Moreover, evidence of aiding and abetting

may be shown by either direct or circumstantial evidence. State v. Salyer, 12th Dist. No.

CA2006-03-039, 2007-Ohio-1659, ¶ 26.

       {¶ 24} The culpability required for the "theft offense" element of aggravated robbery is

"knowingly." Id. at ¶ 20; State v. McSwain, 79 Ohio App.3d 600, 606 (8th Dist.1992). A

person acts "knowingly" when he is "aware that his conduct will probably cause a certain




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result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist." R.C. 2901.22(B).

       {¶ 25} After reviewing the entire record, weighing inferences and examining the

credibility of the witnesses, we find that appellant's conviction for aggravated robbery was

supported by the manifest weight of the evidence. The state presented testimony and

evidence from which the jury could have found the essential elements of complicity to

aggravated robbery proven beyond a reasonable doubt.

       {¶ 26} The state presented evidence that appellant, Rider, and Carpenter were

present in appellant's apartment the night the robbery was planned and committed. Although

Rider testified at trial that he did not know who planned the robbery, the jury was entitled to

find that appellant knowingly aided and abetted in the robbery of Thorntons gas station by

actively supporting and encouraging the robbery, as appellant told Rider and Carpenter "not

to puss out" and "to just go and get it done," and by assisting in the robbery, as appellant

allowed the gun that he controlled and stored in his apartment to be used in the robbery.

Further, the evidence presented at trial demonstrated that appellant knowingly cooperated in

the robbery by sharing the proceeds from the robbery and instructing Rider and Carpenter to

"keep quiet" about the robbery.

       {¶ 27} Appellant contends that evidence offered against him at trial was not credible

as the majority of the evidence was presented by Rider, an "admitted liar" who received

leniency in the prosecution of his case in exchange for his testimony against appellant.

Simply because Rider was offered a plea bargain in exchange for his testimony, the jury was

not precluded from finding Rider's testimony credible. "Obviously, if such were the case, the

state could never rely on the testimony of accomplices and many criminals would escape

prosecution." State v. Cumberbatch, 11th Dist. No. 2009-T-0127, 2011-Ohio-1584, ¶ 54. It

was for the jury to determine whether all, part of, or none of Rider's testimony was credible as
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they were in the best position to observe his demeanor. State v. Woodward, 12th Dist. No.

CA2011-02-036, 2011-Ohio-6019, ¶ 35. Furthermore, pursuant to R.C. 2923.03(D), the jury

was provided with the following instruction regarding the weight to be given to Rider's

testimony:

              You have heard testimony from Steven Rider, another person
              who is accused of the same crime charged in this case, and is
              said to be an accomplice. An accomplice is one who purposely
              or knowingly assists, or joins another in the commission of a
              crime. Whether Mr. Rider was an accomplice and the weight to
              give his testimony are matters for you to determine from all the
              facts and circumstances in evidence.

              An accomplice may have special motives in testifying, and you
              should carefully examine an accomplice's testimony and use it
              with great caution, and view it with grave suspicion.

We must presume that the jury followed the instructions given to it by the trial court. State v.

Martin, 12th Dist. Nos. CA2002-10-111, CA2002-10-115 & CA2002-10-116, 2003-Ohio-6551,

¶ 24; State v. Jones, 90 Ohio St.3d 403, 414 (2000).

       {¶ 28} In light of the jury's verdict, it is apparent that the jury found Rider's testimony to

be credible and chose to believe Rider's testimony and the state's version of events over

appellant's denial of any involvement in the robbery. Given the evidence presented, the jury

clearly did not lose its way and create such a manifest miscarriage of justice such that the

conviction must be reversed and a new trial ordered. Therefore, as appellant's aggravated

robbery conviction was not against the manifest weight of the evidence, we necessarily

conclude that the state presented sufficient evidence to support the jury's finding of guilt and

to overcome appellant's Crim.R. 29(C) motion. Accordingly, appellant's first, second, and

third assignments of error are overruled.

       {¶ 29} Judgment affirmed.


       S. POWELL and PIPER, JJ., concur.


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