[Cite as State v. Rodrigues, 2012-Ohio-535.]


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

STATE OF OHIO                                       C.A. No.       11CA009971

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DECIO RODRIGUES, JR.                                COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   08CR075312

                                 DECISION AND JOURNAL ENTRY

Dated: February 13, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Decio Rodrigues, Jr., appeals from his convictions in the

Lorain County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                I

        {¶2}     On the morning of January 25, 2008, the owner of Gonzalez Market, Jose

Gonzalez, sustained three gunshot wounds during a robbery and died as a result of his injuries.

Marcus Crawley, an employee of Allied Waste who habitually stopped at Gonzalez Market on

his weekly route, witnessed a man run from the store with a handful of money. The man ran

down the street, turned once to look at Crawley, and disappeared behind several houses.

Crawley then entered the store and noted both that the store appeared empty and the cash register

was displaying three zeros. After briefly leaving the store to call his supervisor and report what

he had seen, Crawley reentered Gonzalez Market and discovered Gonzalez lying behind the

counter. Crawley later identified Rodrigues as the man he saw fleeing from the store.
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       {¶3}       The police learned that Gonzalez had kept a Taurus .38 caliber revolver under the

counter of his store to protect himself and his wife in the event of a robbery. The police found

the revolver on the counter of the store after Gonzalez’ murder, along with a car jack handle.

The revolver contained five spent casings, and the store’s safe was empty. The police later

gained information that Rodrigues had perpetrated the crimes at Gonzalez Market.

       {¶4}       Rodrigues led the police to a false address after an officer spoke with him on the

phone and asked where he lived. When officers finally located Rodrigues and attempted to arrest

him, he fled and a short chase ensued. Rodrigues had $1,210 in cash in his pocket at the time of

his arrest. During his interview at the police station, Rodrigues refused to admit that he was

involved in the shooting. Several members of Rodrigues’ family, however, informed the police

that Rodrigues had confessed to them that he shot Gonzalez in the midst of a struggle when he

robbed Gonzalez Market. Rodrigues also could not be eliminated as the source of the DNA that

was extracted from Gonzalez’ fingernail scraping.

       {¶5}       A grand jury indicted Rodrigues on the following counts: (1) aggravated murder,

in violation of R.C. 2903.01(B); (2) two counts of murder, in violation of R.C. 2903.02(A) and

2903.02(B); (3) two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1) and

2911.01(A)(3); (4) felonious assault, in violation of R.C. 2903.11(A)(1); (5) having weapons

under disability, in violation of R.C. 2923.13(A)(2); and (6) theft, in violation of R.C.

2913.02(A)(1). The indictment also contained a capital murder specification and multiple gun

specifications.     On June 27, 2008, a supplemental indictment charged Rodrigues with an

additional count of aggravated robbery, in violation of R.C. 2911.01(A)(3), felony murder, in

violation of R.C. 2903.02(B), and two attendant gun specifications. Rodrigues waived his right

to a jury trial and, due to the capital specification, had a bench trial before a three-judge panel.
                                                 3


       {¶6}    The three-judge panel found Rodrigues guilty of felony murder, two counts of

aggravated robbery, felonious assault, theft, and having weapons while under disability.

Rodrigues appealed from his sentence, but this Court dismissed the appeal by way of journal

entry because the sentencing entry failed to order a specific amount of restitution. State v.

Rodrigues, 9th Dist. No. 10CA009868 (Aug. 25, 2010). Subsequently, a single judge issued a

journal entry vacating the restitution portion of Rodrigues’ sentence. Rodrigues appealed again,

but this Court dismissed the second appeal by journal entry, concluding that the trial court had

still yet to issue a final judgment of conviction. State v. Rodrigues, 9th Dist. No. 10CA009941

(Dec. 30, 2010).

       {¶7}    On February 15, 2011, the three-judge panel issued a final sentencing entry.

Rodrigues now appeals from his convictions and raises three assignments of error for our review.

                                                 II

                                Assignment of Error Number One

       THE VERDICTS ARE AGAINST THE SUFFICIENCY OF THE EVIDENCE
       IN VIOLATION OF MR. RODRIGUES’S RIGHTS UNDER THE FIFTH,
       SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO STATE
       CONSTITUTION.

       {¶8}    In his first assignment of error, Rodrigues argues that his felony murder

conviction is based on insufficient evidence. Specifically, he argues that the State failed to prove

proximate cause. We disagree.

       {¶9}    In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 274 (1991).

       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
                                                 4


       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.

Id. at 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, 78 Ohio St.3d at 386.

       {¶10} The felony murder statute provides that “[n]o person shall cause the death of

another as a proximate result of the offender’s committing or attempting to commit an offense of

violence that is a felony of the first or second degree * * *.” R.C. 2903.02(B).

       [D]eath is the “proximate result” of [a] [d]efendant’s conduct in committing the
       underlying felony offense * * * [if it is] a direct, natural, reasonably foreseeable
       consequence, as opposed to an extraordinary or surprising consequence, when
       viewed in the light of ordinary experience.

State v. Chapman, 190 Ohio App.3d 528, 2010-Ohio-5924, ¶ 24 (9th Dist.), quoting State v.

Dixon, 2d Dist. No. 18582, 2002 WL 191582, *5 (Feb. 8, 2002). “[T]he predicate offense

contains the mens rea element for felony murder.” State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, ¶ 43. Both felonious assault and aggravated robbery are offenses of violence for purposes

of the felony murder statute. R.C. 2901.01(A)(9)(a).

       {¶11} Rodrigues’ sole argument is that the State failed to prove proximate cause.

Specifically, he argues that Gonzalez’ death was not a foreseeable consequence of the aggravated

robbery he committed. We disagree.

       {¶12} Lilliam Gonzalez, the victim’s wife, testified that her husband kept a revolver

behind the counter at their store for protection and was worried because multiple robberies had

taken place recently in the neighborhood. She testified that she and her husband kept a large

amount of cash in the store on Fridays because that was the day the store cashed the most checks
                                                 5


for its customers. On the morning of her husband’s murder, Lilliam left the store to go to the

bank and run a few errands. She did not return until after the shooting occurred.

       {¶13} Jermaine Hernandez, Rodrigues’ younger brother, testified that he spoke with

Rodrigues three days before the shooting. During their conversation, Rodrigues stated that he

would buy his daughters everything they needed if he ever got a “good lick.” Hernandez

understood a “good lick” to refer to a robbery. He further testified that Rodrigues specifically

discussed Gonzalez Market as an ideal location for a robbery because he knew Lilliam Gonzalez

left the store and went to the bank on Fridays. The day of the murder, Rodrigues called

Hernandez and told him that he had robbed Gonzalez Market, but the robbery had gone awry.

Rodrigues told his brother that Gonzalez scratched his face and pulled out a gun. Rodrigues then

said that the two struggled over the gun and it went off three times.

       {¶14} Jennifer Lopez, Rodrigues’ sister, also testified that Rodrigues confessed to her

after the shooting. Rodrigues told his sister that he “tussle[d]” with Gonzalez and that Gonzalez

had a gun. Lopez testified that Rodrigues framed the shooting as an act of self-defense and that

he shot Gonzalez because “he felt like it was his life or Mr. Gonzalez’s * * *.” According to Dr.

Paul Matus, the Lorain County Coroner, Gonzalez died as a result of three gunshot wounds to his

trunk, one of which was fired from approximately six to seven inches away from his body and

two of which were fired from approximately one inch or less away.

       {¶15} Sergeant Mark McCoy of the Lorain Police Department testified that the police

found a two-foot car jack handle behind the counter at Gonzalez Market after the shooting.

Michael Thompson, Lopez’ boyfriend, identified the car jack handle as one that he had kept on

his back porch, covered by a tarp. Both Thompson and Lopez testified that Rodrigues lived with

them at the time of the shooting. Thompson testified that he did not realize the car jack handle
                                               6


was missing until the police came to the house and asked him whether he kept any car jacks at

the house.

       {¶16} Rodrigues claims that the State failed to prove felony murder because it was not

foreseeable that Gonzalez would “escalate a threat of violence with a blunt object into active

violence with a firearm.” He argues that he merely confronted Gonzalez with a car jack handle

and could not foresee that Gonzalez would respond by brandishing a firearm. There is no

evidence in the record, however, that Rodrigues merely confronted Gonzalez with the jack

handle. The only evidence as to what occurred in the store was that the two men engaged in a

struggle, during which Gonzalez scratched Rodrigues, and Rodrigues shot Gonzalez three times

at close range.

       {¶17} Rodrigues specifically discussed robbing Gonzalez Market on a Friday and had at

least some knowledge about the habits of the owners, given that he knew Lilliam Gonzalez went

to the bank on Fridays. Rodrigues brought a large, blunt instrument with him to the store, which

was located in a neighborhood that had experienced multiple robberies.             Under these

circumstances, it was reasonably foreseeable that the situation might escalate beyond just

robbery. A rational trier of fact could have concluded, based on the evidence set forth by the

State, that Rodrigues proximately caused Gonzalez’ death in the commission of both felonious

assault and aggravated robbery. Consequently, Rodrigues’ first assignment of error is overruled.

                               Assignment of Error Number Two

       THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE IN VIOLATION OF MR. RODRIGUES’S RIGHTS UNDER THE
       FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
       STATE CONSTITUTION.
                                                  7


       {¶18} In his second assignment of error, Rodrigues argues that his felony murder

conviction is against the manifest weight of the evidence. We disagree.

       {¶19} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.

Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.

       {¶20} Rodrigues argues that the trier of fact lost its way by not concluding that the

shooting here was accidental and the “only alternative” Rodrigues had in a “life-or-death

situation.” Initially, we note that Rodrigues is incorrect in asserting any argument resembling

self-defense as he was at fault for creating the situation giving rise to the murder. State v. Little,

9th Dist. No. 10CA009758, 2011-Ohio-768, ¶ 23, quoting State v. Gates, 9th Dist. No. 24941,

2010-Ohio-2994, ¶ 7. Further, it is irrelevant that Rodrigues did not intend to kill Gonzalez. The

felony murder statute only requires the intent to commit the underlying predicate offense in

conjunction with the death of the victim, proximately caused by the commission or attempted
                                                 8


commission of the predicate offense. R.C. 2903.02(B); Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, at ¶ 43. The trier of fact here concluded that Rodrigues intended to commit aggravated

robbery and felonious assault and, in committing those offenses, proximately caused the death of

Gonzalez. Based on the evidence in the record, we cannot say that the trier of fact lost its way in

reaching that determination. Rodrigues’ second assignment of error is overruled.

                               Assignment of Error Number Three

       THE TRIAL COURT ERRED IN IMPOSING SENTENCES FOR ALLIED
       OFFENSES OF SIMILAR IMPORT.

       {¶21} In his third assignment of error, Rodrigues argues that the trial court committed

plain error by sentencing him on allied offenses of similar import.

       {¶22} The trial court here determined that several of Rodrigues’ offenses were allied

offenses, but still sentenced him on aggravated robbery, the firearm specification underlying that

charge, having weapons while under disability, and felony murder.

       In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme
       Court held that “[w]hen determining whether two offenses are allied offenses of
       similar import subject to merger under R.C. 2941.25, the conduct of the accused
       must be considered.” Id. at syllabus. Since then, this Court has consistently
       remanded cases for further proceedings in the trial court to apply Johnson for the
       first time. See, e.g., State v. Creel, 9th Dist. No. 25476, 2011-Ohio-5893, ¶ 4.

State v. Daniels, 9th Dist. No. 25808, 2011-Ohio-6414, ¶ 12. The trial court did not have the

opportunity to consider Johnson in determining whether the counts here are allied offenses.

Further, if any of the offenses here are allied, the State has not yet “had the opportunity to elect

on which offense it wishes to proceed for sentencing.” Creel at ¶ 4. Consistent with our

precedent, we must remand the matter to the trial court for it to apply Johnson in the first

instance. Id. Rodrigues’ third assignment of error is sustained on this basis.

                                                III
                                                  9


       {¶23} Rodrigues’ first and second assignments of error are overruled.               His third

assignment of error is sustained for the reason set forth above. The judgment of the Lorain

County Court of Common Pleas is affirmed in part, reversed in part, and remanded to the trial

court for consideration of the allied offense issue in light of Johnson.

                                                                           Judgment affirmed in part,
                                                                                    reversed in part,
                                                                                and cause remanded.




       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 Lorain, 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(E). 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 equally to both parties.




                                                      BETH WHITMORE
                                                      FOR THE COURT



CARR, J.
DICKINSON, J.
CONCUR
                                          10


APPEARANCES:

PAUL GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.
