[Cite as State v. Sparks, 2014-Ohio-4277.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-09-168

                                                   :           OPINION
    - vs -                                                      9/29/2014
                                                   :

DRAVAUGHN P. SPARKS,                               :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-05-9721



Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Dravaughn P. Sparks, appeals from his convictions in the

Butler County Court of Common Pleas for aggravated robbery and kidnapping.

        {¶ 2} On June 5, 2013, Sparks was indicted on one count of aggravated robbery in

violation of R.C. 2911.01(A)(1), and one count of kidnapping in violation of R.C.

2905.01(A)(2), both felonies of the first degree. A gun specification accompanied both
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charges. The state alleged that Sparks acted either as the principal or in complicity with

Kameron Williams in the commission of those crimes. Sparks pled not guilty to the charges,

and the case proceeded to trial.

       {¶ 3} Following a three-day trial, the jury found Sparks guilty on both counts and the

added gun specification. The trial court merged the aggravated robbery and kidnapping

charges and sentenced Sparks to four years in prison. Sparks was additionally ordered to

serve a mandatory three-year prison term on the gun specification, prior to and consecutive

with the aggravated robbery sentence.

       {¶ 4} Sparks appeals those convictions, raising two assignments of error for our

review. For ease of discussion, we will discuss both assignments of error together.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT MR.

SPARKS OF AGGRAVATED ROBBERY IN VIOLATION OF R.C. 2911.01(A)(1) AND

KIDNAPPING IN VIOLATION OF R.C. 2905.01(A)(2).

       {¶ 7} Assignment of Error No. 2:

       {¶ 8} MR. SPARKS' CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 9} Sparks argues that (1) the trial court erred in denying his Rule 29 motion for

acquittal on the aggravated robbery and kidnapping charges, and (2) his conviction was

against the manifest weight of the evidence because "the trier of fact did not properly execute

its fact-finding responsibilities and failed to render an appropriate verdict in light of the

evidence presented at trial."

       {¶ 10} 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
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acquittal using the same standard as that used to review a sufficiency-of-the-evidence claim."

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

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

Fayette 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.

       {¶ 11} A manifest weight of the evidence challenge, on the other hand, 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. Butler 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. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While

appellate review includes the responsibility to consider the credibility of witnesses and weight

given to the evidence, 'these issues are primarily matters for the trier of fact to decide.'"

State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State

v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court,

therefore, will overturn a conviction due to the manifest weight of the evidence only in

extraordinary circumstances when the evidence presented at trial weighs heavily in favor of
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acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387. Furthermore, "[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶

19.

       {¶ 12} The present case involved allegations of kidnapping and robbery at gunpoint.

Aggravated robbery under R.C. 2911.01(A)(1), provides that "[n]o 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 * * * [h]ave 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." Kidnapping under R.C. 2905.01(A)(2)

provides that "[n]o person, by force, threat, or deception * * * shall remove another from the

place where the other person is found or restrain the liberty of the other person * * * [t]o

facilitate the commission of any felony or flight thereafter."

       {¶ 13} 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. Warren No. 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. Warren No. CA2006-03-039, 2007-Ohio-1659, ¶ 26.
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       {¶ 14} On the day in question, Sparks, Williams, Caitlyn Riddle, Anthony Wince and

Sparks' sister made a trip to Oxford, Ohio. There, Williams came into contact with Andrew

Livingstone, a Miami University student. Williams and Livingstone had not previously met.

Williams asked Livingstone if he wanted to purchase marijuana and Livingstone agreed.

Livingstone then informed Williams that he was on his way to meet a friend, Rob Dvorak.

       {¶ 15} After the two met up with Dvorak, they worked out the details of the marijuana

sale. Williams told them to give him the money and he would retrieve the marijuana from his

car. Dvorak declined, not trusting that Williams wouldn't simply take the money and leave.

Williams then agreed to have Dvorak get into the car with him to complete the transaction.

       {¶ 16} Upon arrival at the car, there were four others seated inside. Riddle was in the

driver's seat and Sparks was in the front passenger seat. Dvorak got into the back seat

where two others were seated, and Williams followed him in. Livingstone testified that he

approached the car to look in, at which time Sparks said something to the effect of, "[w]hat

the hell are you doing? Get the fuck out of here." Livingstone then turned and walked away.

       {¶ 17} Dvorak testified that Sparks almost immediately began yelling at him once

inside the car. Dvorak then gave Williams his money and asked to be let out of the car. At

that point the car started to move, and Dvorak realized he wasn't going to be let out. Dvorak

testified that Sparks then pulled a gun out from between his legs, began yelling, waving it in

the air and pointing it at him. Dvorak pleaded for them to go to an ATM so that he could

withdraw more cash and they would "just call it a day." According to Dvorak, Sparks had

been directing the driver and told her to pull up to a Chase ATM on Main Street.

       {¶ 18} Once at the ATM, Dvorak testified that Sparks handed the gun to Williams, who

then escorted Dvorak towards the ATM with the gun pressed against his back. Dvorak

attempted to buy some time at the ATM by entering incorrect PIN numbers, but eventually

Williams became agitated. At that point, a male in the vehicle yelled "let's go." Dvorak
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withdrew $100 and handed it to Williams. Williams demanded that he withdraw more.

Officers arrived on the scene at that time.

       {¶ 19} Livingstone corroborated Dvorak's testimony. He testified that he saw the

vehicle turn onto Main Street and assumed that the transaction had gone off as planned.

However, he suspected something was wrong when he saw Williams exit the vehicle

"attached right to" Dvorak. Once Livingstone saw them approach the ATM, he concluded

there was a problem and called 9-1-1. He then approached police officers and advised them

of his concerns. Those police officers blocked the vehicle and secured the passengers and

Williams.

       {¶ 20} The officers discovered a loaded .25 caliber pistol "sticking out the bottom of

[Williams'] pant leg." Cash in the amount of $165 was also found on Williams, the exact

amount Dvorak alleged to have given him. The officers found a small bag of marijuana and a

knife on Sparks. They also recovered a small amount of cash, marijuana and five rounds of

.25 caliber ammunition in the vehicle and on the other passengers.

       {¶ 21} Riddle testified on behalf of the defense. She had been driving the vehicle on

the night in question. She testified that Williams told her Dvorak just needed a ride home.

According to Riddle, Sparks did not direct her on where to go at any time. She stated that

Sparks told Dvorak to "get off his sister," but only in a raised tone, rather than a yell. Riddle

testified that it was Williams who began to yell at Dvorak. She further testified that she only

ever saw Williams with the gun, never Sparks. Finally, she testified that Sparks never told

her where to go, nor did he tell Dvorak what to do, demand money from him, or take money

from him.

       {¶ 22} Weighing the evidence above, we cannot find that the trier of fact clearly lost its

way and created a manifest miscarriage of justice in finding Sparks guilty of aggravated

robbery and kidnapping. Evidence was presented to show that Sparks was not only present
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at the scene of the crime, but actively participated. Dvorak testified that Sparks directed

Riddle to drive to the ATM, pulled out and pointed a gun at Dvorak and handed that gun to

Williams so that he could escort Dvorak to the ATM to withdraw more money. Dvorak's

testimony makes clear that Sparks and Williams shared the same intent to commit the

robbery. Dvorak also testified that he asked to be let out of the car, but that the car began to

leave. He stated that Sparks directed the driver where to go and pulled out the gun which he

pointed at Dvorak. According to Dvorak, Sparks handed the gun to Williams to continue the

robbery at the ATM while restraining Dvorak's liberty. Therefore, pursuant to Dvorak's

testimony, it is again clear that Sparks and Williams shared the same intent in kidnapping

Dvorak during the commission of the robbery.

       {¶ 23} While the defense presented testimony from Riddle that conflicts with Dvorak's

testimony, we agree with the state that "a conviction is not against the manifest weight of the

evidence simply because the jury believed the prosecution testimony." State v. Coleman,

12th Dist. Butler No. CA2010-12-329, 2011-Ohio-4564, ¶ 26. "As the trier of fact is in the

best position to judge the credibility of the witnesses, we will not disturb the trial court's

finding in regard to which version of events was credible, and which was not." State v.

Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-Ohio-3670, ¶ 13. The trier of fact in the

present case found the prosecution testimony to be more credible. We agree.

       {¶ 24} In light of the foregoing, having found that Sparks' conviction was supported by

sufficient evidence and was not against the manifest weight of the evidence, Sparks'

assignments of error are overruled.

       {¶ 25} Judgment affirmed.


       S. POWELL and PIPER, JJ., concur.




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