[Cite as State v. Hughes, 2014-Ohio-4039.]


STATE OF OHIO                    )                IN THE COURT OF APPEALS
                                 )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                     C.A. No.     27061

        Appellee

        v.                                        APPEAL FROM JUDGMENT
                                                  ENTERED IN THE
CIERRA R. HUGHES                                  COURT OF COMMON PLEAS
                                                  COUNTY OF SUMMIT, OHIO
        Appellant                                 CASE No.   CR 13 01 0185

                                 DECISION AND JOURNAL ENTRY

Dated: September 17, 2014



        MOORE, Judge.

        {¶1}    Defendant-Appellant, Cierra R. Hughes, appeals from the August 26, 2013

judgment entry of the Summit County Court of Common Pleas. We affirm.

                                             I.

        {¶2}    Ms. Hughes met Johnny Christopher Campbell on an online dating website

known as “Air G.” After communicating via internet and telephone for a couple of months, Mr.

Campbell invited Ms. Hughes to his apartment in Akron, Ohio. In the early morning hours of

December 12, 2012, Ms. Hughes arrived at Mr. Campbell’s apartment. After talking for a few

minutes, Ms. Hughes went outside to “smoke a blunt.” According to Mr. Campbell, Ms. Hughes

was gone for about five minutes when he got up and looked out the window. At that time, he

saw a truck drive by very slowly, and, because this alarmed him, Mr. Campbell locked the

apartment door. Then, going back to the window, he saw Ms. Hughes walking toward the

apartment and unlocked the door. When Ms. Hughes re-entered the apartment, she was followed
                                                 2


by three men, one of whom had a gun. Mr. Campbell was struck in the face with the gun and

robbed. Ms. Hughes left the apartment at the same time as the men, and Mr. Campbell had no

further contact with her.

       {¶3}    Ms. Hughes was indicted on one count of aggravated robbery, in violation of R.C.

2911.01(A)(1), with a firearm specification pursuant to R.C. 2941.145, one count of conspiracy

to commit aggravated robbery, in violation of R.C. 2911.01(A)(1)/2923.01, and one count of

felonious assault, in violation of R.C. 2903.11(A)(2). Ms. Hughes pleaded not guilty to all

charges and the matter proceeded to jury trial. Upon the State’s motion, the trial court dismissed

the charge for conspiracy to commit aggravated robbery.

       {¶4}    The jury found Ms. Hughes guilty of aggravated robbery, with a firearm

specification, and felonious assault. The trial court sentenced her to four years’ imprisonment

for aggravated robbery, to run consecutively with a mandatory term of three years’ imprisonment

for the firearm specification. The court imposed a sentence of seven years’ imprisonment for

felonious assault, to run concurrently with the sentence in the other count.

       {¶5}    Ms. Hughes appealed, raising three assignments of error for our consideration.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN IT
       VIOLATED THE SIXTH AMENDMENT’S CONFRONTATION CLAUSE
       WHEN IT ADMITTED THE 911 CALL INTO EVIDENCE.

       {¶6}    Although Ms. Hughes phrased her first assignment of error as a constitutional

challenge based upon the Sixth Amendment’s Confrontation Clause, she does not set forth any
                                                 3


argument regarding this issue.1 Instead, she argues that the trial court erred in playing the

recording of the 911 call for the jury because it is hearsay. We limit our discussion accordingly.

       {¶7}    “The decision to admit or exclude evidence lies in the sound discretion of the trial

court.” State v. Wright, 9th Dist. Lorain No. 05CA008675, 2006-Ohio-926, ¶ 5, citing State v.

Sage, 31 Ohio St.3d 173, 180 (1987). “This Court, therefore, reviews the trial court’s decision

regarding evidentiary matters under an abuse of discretion standard of review.” Wright at ¶ 5. An

abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in

its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶8}    Upon careful review of the record, we note that Ms. Hughes did not object at the

time the 911 call was played for the jury, and it is unclear whether she objected when the State

moved to admit the recording into evidence.           “The law is well[-]settled that failure to

contemporaneously object during the identification of a document and testimony regarding it

forfeits appellate review.” State v. Cross, 9th Dist. Summit No. 25487, 2011-Ohio-3250, ¶ 49,

citing State v. Gray, 9th Dist. Wayne No. 08CA0057, 2009-Ohio-3165, ¶ 7. Accordingly, “‘an

appellate court will not consider as error any issue a party was aware of but failed to bring to the

trial court’s attention[ ]’ at a time when the trial court might have corrected the error.”

(Alteration sic.) State v. Caldwell, 9th Dist. Summit No. 26303, 2013-Ohio-1417, ¶ 8, quoting

State v. Dent, 9th Dist. Summit No. 20907, 2002-Ohio-4522, ¶ 6. Ms. Hughes, therefore, has

forfeited her right to challenge the issue on appeal. See Caldwell at ¶ 8.

       {¶9}    “‘By forfeiting the issue for appeal, [Ms. Hughes] has confined our analysis to an

assertion of plain error.’” Cross at ¶ 51, quoting Gray at ¶ 7, citing State v. Payne, 114 Ohio


       1
           Had Ms. Hughes presented an argument regarding the Sixth Amendment’s
Confrontation Clause, it would not have been well-taken because Mr. Campbell, the 911 caller,
both testified at trial and was cross-examined.
                                                4


St.3d 502, 2007-Ohio-4642, ¶ 23; Crim.R. 52(B). “‘While a defendant who forfeits such an

argument still may argue plain error on appeal, this court will not sua sponte undertake a plain []

error analysis if a defendant fails to do so.’” Cross at ¶ 51, quoting Akron v. Lewis, 179 Ohio

App.3d 649, 2008-Ohio-6256, ¶ 22 (9th Dist.); App.R. 16(A)(7); App.R. 12(A)(2); Loc.R.

7(B)(7).

        {¶10} Here, because Ms. Hughes failed to argue plain error on appeal, we will not

undertake such an analysis. Accordingly, Ms. Hughes’ first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

        THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN IT
        ADMITTED [MS. HUGHES’] JAIL HOUSE PHONE CALL INTO EVIDENCE
        AS THE CALL WAS PURE HEARSAY AND OFFERED TO PROVE [MS.
        HUGHES’] ALLEGED INVOLVEMENT IN THE ROBBERY OF [MR.
        CAMPBELL’S] APARTMENT.

        {¶11} In her second assignment of error, Ms. Hughes argues that the trial court erred in

admitting into evidence a recorded “jail house” telephone conversation because it is hearsay.

Specifically, Ms. Hughes argues that Evid.R. 801(D)(2)(b) does not apply because the

conversation between herself and a third party took place out of court and Ms. Hughes did not

take the stand to testify.

        {¶12} As stated above, this Court reviews a trial court’s decision to admit or exclude

evidence for an abuse of discretion. See Wright, 2006-Ohio-926, at ¶ 5. An abuse of discretion

means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore, 5 Ohio St.3d at 219.

        {¶13} Here, during trial, the State moved to play a recording of a “jail house”

conversation between Ms. Hughes and a third party. Ms. Hughes stipulated to making a call

from the jail to a specific telephone number on January 10, 2013, and also to the authenticity of
                                                  5


the recording. However, Ms. Hughes objected to playing the recording for the jury on the

grounds that the comments made by the third party constituted hearsay. The trial court overruled

Ms. Hughes’ objection and allowed the recording to be played, concluding that it was not

hearsay because the third party’s statements were only being offered to provide context for Ms.

Hughes’ statements.     This recording was not transcribed into the record, but the CD was

admitted into evidence as State’s Exhibit 9. We have listened to the CD, and note that the

dialogue between Ms. Hughes and the third party is quite difficult to understand because they are

speaking very quickly, and, at times, over one another. However, based upon Ms. Hughes’

argument in her appellate brief, we were able to discern the following exchange that she appears

to challenge:

        ***

       [Third Party]: You better tell on his ass. * * * You better listen to me.* * *

       [Ms. Hughes]: Have you talked to him?

       ***

       {¶14} Pursuant to Evid.R. 801(C), “‘[h]earsay’ is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” In the present matter, the third parties’ statements, “[y]ou better tell on his ass.

* * * [y]ou better listen to me,” and Ms. Hughes’ response, “[h]ave you talked to him,” are not

hearsay because they are not assertions.        See State v. Auerswald, 9th Dist. Medina No.

11CA0053-M, 2013-Ohio-742, ¶ 31, citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-

6235, ¶ 97. “‘An assertion for hearsay purposes ‘means to say that something is so, e.g., that an

event happened or that a condition existed.’” Auerswald at ¶ 31, quoting State v. West, 10th

Dist. Franklin No. 06AP-114, 2006-Ohio-5095, ¶ 9, quoting Leonard at ¶ 97, quoting State v.

Carter, 72 Ohio St.3d 545, 549 (1995). The statements made by the third party that are
                                                 6


challenged by Ms. Hughes are not assertions because they cannot be proved true or false, and

cannot be offered to prove the truth of the matter asserted. See West at ¶ 9. See also State v.

Young, 8th Dist. Cuyahoga No. 78058, 2001 WL 370460, *5 (May 16, 2001) (concluding that

questions, warnings, and directives were not hearsay because they were not assertive in nature

and were incapable of being proved true or false).

       {¶15} Based upon the foregoing, we conclude that, “[y]ou better tell on his ass * * *

[y]ou better listen to me,” is a directive, and “[h]ave you talked to him,” is a question, neither of

which is assertive in nature or capable of being proved true or false. Further, Ms. Hughes has

not argued that the trial court committed plain error in concluding that the “jailhouse call” was

relevant for purposes of tending to make more probable that Ms. Hughes had knowledge

regarding the identity of one, or all, of the men who assaulted and robbed Mr. Campbell, as she

did not respond that she did not know the person, or did not know what the third party was

talking about, or words to that effect. See Evid.R. 402.

       {¶16} Accordingly, Ms. Hughes’ second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE EVIDENCE WAS INSUFFICIENT TO SUPPORT CONVICTING [MS.
       HUGHES] AS THERE WAS NOTHING INDICATING [MS. HUGHES]
       PARTICIPATED IN ANYTHING OTHER THAN BEING PRESENT IN THE
       APARTMENT WHEN THE ALLEGED CRIMES OCCURRED.

       {¶17} In her third assignment of error, Ms. Hughes contends that the evidence was

insufficient to support her convictions for aggravated robbery, with a firearm specification, and

felonious assault. Ms. Hughes first argues that there was insufficient evidence to support her

conviction as to the R.C. 2941.145 firearm specification, which added a mandatory three year

term of imprisonment onto her sentence. Ms. Hughes also argues that there was insufficient

evidence that she aided and abetted in the commission of the aggravated robbery and felonious
                                                 7


assault against Mr. Campbell. However, Ms. Hughes does not dispute the fact that an aggravated

robbery or felonious assault occurred. We limit our discussion accordingly.

       {¶18} In determining whether a conviction is supported by sufficient evidence:

       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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. See also State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a test of adequacy.”

Thompkins at 386. Further, circumstantial evidence has the same probative value as direct

evidence. Jenks at paragraph one of the syllabus.

       {¶19} As indicated above, a jury found Ms. Hughes guilty of aggravated robbery, in

violation of R.C. 2911.01(A)(1), with a firearm specification pursuant to R.C. 2941.145, and

felonious assault, in violation of R.C. 2903.11(A)(2).

Operability of firearm

       {¶20} In the present matter, Ms. Hughes argues that the State failed to prove that,

pursuant to R.C. 2941.145, the firearm was operable or could have readily been rendered

operable at the time of the offense. R.C. 2941.145(A) provides, in relevant part, that:

       Imposition of a three-year mandatory prison term upon an offender under division
       (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the
       indictment, count in the indictment, or information charging the offense specifies
       that the offender had a firearm on or about the offender’s person or under the
       offender’s control while committing the offense and displayed the firearm,
       brandished the firearm, indicated that the offender possessed the firearm, or used
       it to facilitate the offense.
                                                 8


Further, “‘[a]n unarmed accomplice who actively participates in a robbery where the victims are

held by another accomplice at gunpoint may be subject to a firearm specification and the

mandatory commitment time under that specification.’” State v. Hayes, 9th Dist. Summit No.

22168, 2005-Ohio-1464, ¶ 18, quoting Matter of Foster, 9th Dist. Lorain No. 97CA006766,

1998 WL 240113, *5, citing State v. Chapman, 21 Ohio St.3d 41 (1986), syllabus.

       {¶21} “To be ‘operable’ a firearm must be ‘capable of expelling or propelling one or

more projectiles by the action of an explosive or combustible propellant.’” Hayes at ¶ 19,

quoting R.C. 2923.11(B)(1). “In determining operability, the trier of fact ‘may rely upon

circumstantial evidence, including * * * the representations and actions of the individual

exercising control over the firearm.’” Hayes at ¶ 19, quoting R.C. 2923.11(B)(2). “Accordingly,

the trier of fact must evaluate the evidence of a firearm's operability by examining the totality of

the circumstances.” Hayes at ¶ 19, citing State v. Murphy, 49 Ohio St.3d 206, 208 (1990).

       {¶22} At trial, the State presented evidence that one of the men involved in the robbery

brandished a gun and told Mr. Campbell to “get the F on the floor.” That same man approached

Mr. Campbell and hit him in the face with the gun, causing him to fall to the ground. Mr.

Campbell testified that after getting up from the floor, he walked over to his desk and gave his

assailants $80. Mr. Campbell further testified that: “[t]he guy with the gun started approaching

me like he, basically, wanted to shoot me. There was another guy that was there with them,

jumped in front of him and he was like, ‘No, no. Leave him alone. He gave us the money, he

gave us the money. Leave him alone.’” (Emphasis added.)            On redirect examination, Mr.

Campbell also testified that when the man with the gun was coming closer to him, he thought the

man was going to shoot him.
                                                9


       {¶23} In viewing the evidence in a light most favorable to the State, the jury could have

found beyond a reasonable doubt that the firearm used in the assault and robbery was operable.

Mr. Campbell testified that he was struck in the face with a gun, that the man with the gun

approached him as if he were going to shoot the gun, and that another one of the assailants stood

between them in order to prevent Mr. Campbell from being shot. See Hayes at ¶ 20.

       {¶24} Therefore, we conclude that there was sufficient evidence in the record to uphold

Ms. Hughes’ conviction for the R.C. 2941.145 firearm specification.

Complicity

       {¶25} Ms. Hughes also argues that there was insufficient evidence that, pursuant to R.C.

2923.03(A)(2), she was complicit in committing the aggravated robbery and felonious assault

against Mr. Campbell.

       {¶26} It is well-settled that “[a] person need not be the principal offender to be

convicted of a crime.” State v. Davis, 9th Dist. Summit No. 26660, 2013-Ohio-5226, ¶ 11.

“R.C. 2923.03(A)(2) provides 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.’” Id.

quoting R.C. 2923.03(A)(2). “‘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.’” Davis at ¶ 11, quoting State

v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “‘The criminal intent of the aider and abettor

‘can be inferred from the presence, companionship, and conduct of the defendant before and

after the offense is committed.’” (Emphasis added.) Davis at ¶ 11, quoting State v. Stephens, 9th

Dist. Summit No. 26516, 2013-Ohio-2223, ¶ 18, quoting State v. Smith, 9th Dist. Summit No.
                                               10


25650, 2012-Ohio-794, ¶ 7. “A person who violates R.C. 2923.03(A)(2) is guilty of complicity

and “‘shall be prosecuted and punished as if he were a principal offender.          A charge of

complicity may be stated in terms of this section, or in terms of the principal offense.’”

(Emphasis added.) Davis at ¶ 11, quoting R.C. 2923.03(F).

       {¶27} At trial, the State presented evidence that:

       (1) Mr. Campbell met Ms. Hughes through an online dating website and, after a
       couple of months, he invited her to his apartment in Akron;

       (2) Ms. Hughes drove from Youngstown to Akron, and arrived at Mr. Campbell’s
       apartment in the early morning hours of December 12, 2012;

       (3) after briefly chatting with Mr. Campbell, Ms. Hughes told him that she wanted
       to go outside and smoke a blunt;

       (4) Ms. Hughes went outside, and when she returned, three men followed her into
       Mr. Campbell’s apartment;

       (5) Mr. Campbell testified that upon entering his apartment, Ms. Hughes turned
       around and smiled at the men;

       (6) the men locked Mr. Campbell’s apartment door, hit him in the face with a gun,
       and demanded money;

       (7) while this was happening, Ms. Hughes stood by and watched;

       (8) Mr. Campbell testified that Ms. Hughes did not seem surprised that the three
       men followed her into his apartment, nor did she seem upset, concerned, or fearful
       during the assault and robbery;

       (9) Mr. Campbell did not see anyone threaten or point a gun at Ms. Hughes;

       (10) Ms. Hughes left Mr. Campbell’s apartment at the same time as the three men,
       and Mr. Campbell never heard from her again;

       (11) Sergeant Scott Lietke testified that, when Ms. Hughes was brought in for
       questioning, she told him that the men who robbed Mr. Campbell also took $100
       and her cell phone, and that her cell phone had a pass code lock on it;

       (12) the record indicates that, even though Ms. Hughes said that her cell phone
       was stolen and had a lock on it, several calls were made from that phone to one of
       Ms. Hughes’ relatives a few hours after the robbery and prior to when Ms.
       Hughes told Sergeant Lietke that she transferred her number to another phone;
                                                  11


       (13) Ms. Hughes never called the police to report the robbery;

       (14) Ms. Hughes admitted to Sergeant Lietke that Mr. Campbell was robbed and
       hit with a gun; and

       (15) Ms. Hughes made a telephone call from the jail to an unidentified third party
       and, during the call, by her silence in failing to respond to a directive, indicated
       that she had knowledge of the identity of at least one of the men who robbed and
       assaulted Mr. Campbell.

       {¶28} In viewing the evidence in a light most favorable to the State, we conclude that a

jury could have found beyond a reasonable doubt that Ms. Hughes “supported, assisted, * * *

[or] cooperated with” Mr. Campbell’s assailants in their commission of felonious assault and

aggravated robbery. See Davis at ¶ 16, quoting Johnson, 93 Ohio St.3d 240 at syllabus. Ms.

Hughes led the men into Mr. Campbell’s apartment, smiled at them, stood by and watched as

they assaulted and robbed Mr. Campbell, showed no fear or concern for him during the attack,

left Mr. Campbell’s apartment at the same time as the assailants, never called the police, never

called to check on Mr. Campbell, and implied through a conversation with a third party that she

knew at least the identity of one of his assailants.

       {¶29} Therefore, we conclude that, pursuant to R.C. 2923.03(A)(2), there is sufficient

evidence in the record to uphold Ms. Hughes’ convictions for aggravated robbery, with a firearm

specification, and felonious assault.

       {¶30} Accordingly, Ms. Hughes’ third assignment of error is overruled.

                                                  III.

       {¶31} In overruling all of Ms. Hughes’ assignments of error, the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                12


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JASON D. WALLACE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
