STATE OF OHIO v. DAVID CAPP
No. 102919
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 28, 2016
[Cite as State v. Capp, 2016-Ohio-295.]
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; REMANDED; Case No. CR-14-583833-A
BEFORE: E.A. Gallagher, P.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 28, 2016
Michael P. Maloney
24441 Detroit Road, Suite 300
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant David Capp appeals his convictions on three three-year firearm specifications under
Factual and Procedural Background
{2} On April 8, 2014, Capp was indicted by a Cuyahoga County Grand Jury on four counts in connection with the March 18, 2014 shooting of John Marshall: two counts of felonious assault in violation of
{3} During the afternoon of March 18, 2014, Jennifer Hayne was at work when she received a call from her next-door neighbor advising her that Capp, an ex-boyfriend,
{4} When Hayne finished her shift 15 or 20 minutes later, she drove home. Capp was not there. Hayne testified that although she had no desire to talk to Capp, she called his cell phone to find out why he wanted to talk with her. According to Hayne, Capp was “very irate” and “disrespectful” and told her that he was coming to her house to beat up her current boyfriend, James Marshall.
{5} Hayne and Marshall had dated “on and off” for 13 years and have a 12-year-old daughter together. According to Hayne, they had recently begun dating again and, as of March 18, 2014, had been back together for approximately three to four weeks. Immediately prior to their reconciliation, Hayne had been seeing Capp in a “friends with benefits kind of thing.” Hayne testified that she hid this from Marshall because she knew he would be “very sad.”
{6} Approximately ten minutes after Hayne spoke with Capp, he arrived at Hayne‘s house in a red S-10 pickup truck. The truck was driven by Troy Winters, an acquaintance of Hayne‘s, whom she had known since 2007 as “T.J.,” and Capp was in the passenger‘s seat. Hayne testified that after Capp and Winters exited the vehicle, Capp
{7} Marshall testified that he was attending an intensive outpatient alcohol treatment program when he received several calls from Hayne. He received the first call at approximately 3:30 p.m. When he answered his cell phone, Hayne told Marshall that she was at home and that Capp was there, screaming, yelling and threatening her. Marshall testified that while he was on the phone with Hayne, he heard Capp screaming and yelling in the background, “F* * * you, b* * * * Tell him to come on. I‘m about to f* * * you all up. Today‘s the day.” Marshall testified that he was worried for Hayne and told his counselor he had to leave treatment early due to an emergency. Marshall‘s father, Walter Marshall (“Walter“), who had been waiting outside to drive Marshall home after treatment, then drove Marshall to his home on West 56th Street in Cleveland, where Marshall was living with Hayne.
{9} Marshall testified that he walked toward the truck, intending to try to talk to the two men. When he was three to four feet from the truck, the driver‘s-side door opened. The passenger, Jones, handed the driver, Winters, a .22 revolver gun and said, “Shoot this b * * * *.” Marshall testified that his attention was focused on the gun. Marshall then heard Capp say, “Kill that mother f * * * * *.” Marshall had not realized Capp was there but after he heard his voice, Marshall looked up and saw Capp standing in the back of the pickup truck.
{10} Hayne was standing outside in her front yard when Marshall approached the pickup truck. She testified that seconds after the truck stopped, Capp popped up from the bed of the truck and she heard him say, “T, we‘re going to spray this b * * * * up and dip.” The car door opened, and gunshots started going off. Haynes testified that she never saw a gun but heard three or four shots.
{12} Walter was standing near his van in Marshall‘s driveway when the incident occurred. Walter testified that as Marshall was walking down the street toward the red pickup truck, the driver‘s side door opened, “a couple words [were] said” (but he could not make them out), and he saw the driver of the pickup shoot his son. Walter testified that he heard four shots. Marshall was laying on the ground screaming, and Walter ran over to him. As he leaned over Marshall, Walter saw Capp standing in the back of the pickup truck. Walter had not seen Capp before the shots were fired. Walter testified that Capp “said some words” and then said, “Take that, b * * * * * *,” and drove off.
{13} Marshall limped to Walter‘s minivan, and Walter drove him to the hospital where Marshall was treated for the three gunshot wounds to his thighs and then released.
{14} On March 20, 2014, two days after the incident, Hayne received a call from Capp asking her to pick him up and drive him out of Cleveland. Hayne agreed to come get him and then contacted Sergeant Thomas Shoulders, a sergeant in Cleveland‘s second district detective bureau, who had been assigned to investigate the incident. Hayne and Sergeant Shoulders decided to “go and set David Capp up.” On her way to pick up Capp, Hayne stopped at the second district police station and picked up Sergeant
{15} At the close of the state‘s case, Capp moved for acquittal on all counts, including the firearm specifications, pursuant to
{16} The jury found Capp guilty on Counts 1-3, including all of the one-year and three-year firearm specifications. The trial court found Capp guilty on Count 4. The trial court merged Count 2 into Count 1 for sentencing and sentenced Capp to 11 years in prison on Count 1 (8 years on the base charge and three years on the firearm specification) and to three years in prison on each of Counts 3 and 4, to be served concurrently to each other and concurrently to the sentence imposed on Count 1. The trial court also imposed three years of mandatory postrelease control. The trial court did
{17} Capp raises the following single assignment of error for review:
The trial court erred in denying appellant‘s
Criminal Rule 29 motion for acquittal when there was insufficient evidence to prove the three-year firearm specification under [R.C.] 2929.14(B)(1) and2941.145 .
Law and Analysis
Sufficiency of the Evidence Supporting Convictions on the Three-Year Firearm Specifications Under R.C. 2929.14(B)(1) and 2941.145(A)
{18} In his sole assignment of error, Capp challenges the sufficiency of the evidence as it relates to his convictions on the three-year firearm specifications in Counts 1, 2 and 3.1 Capp contends the trial court erred in denying his
{19} A
{20} When reviewing the sufficiency of the evidence, an appellate court must determine “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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When performing a sufficiency inquiry, an appellate court does not assess whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Jenks at paragraph two of the syllabus.
{21} In Counts 1, 2 and 3, in addition to his convictions on the base offenses, Capp was convicted of three three-year firearm specifications under
{22} The state concedes that there was no evidence that Capp himself possessed or used a firearm in connection with the shooting incident and did not argue that he was
{23} Under Ohio‘s complicity statute,
{24} The complicity statute requires that an accomplice be treated as though he was the person who committed every act of the underlying principal offense. State v. Kimble, 7th Dist. Mahoning No. 06 MA 190, 2008-Ohio-1539, ¶ 27. “In other words, the court can impute the elements of the principal offense, committed by the principal, to the aider and abettor.‘” Id., quoting State v. Jackson, 90 Ohio App.3d 702, 705, 630 N.E.2d 414 (6th Dist.1993); State v. Hurse, 10th Dist. Franklin No. 14AP-687, 2015-Ohio-2656, ¶ 11.
{25} To support a conviction based upon a defendant‘s complicity by “aiding and abetting” another in committing an offense under
“In order to constitute aiding and abetting, the accused must have taken some role in causing the commission of the offense. State v. Sims, 10 Ohio App.3d 56, 460 N.E.2d 672 (1983). ‘The mere presence of an accused at the scene of the crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’ State v. Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). * * * A person aids or abets another when 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, 93 Ohio St.3d 240, 245-246, 754 N.E.2d 796. ‘Such intent may be inferred from the circumstances surrounding the crime.’ Id. at 246, 754 N.E.2d 796.”
Id. at ¶ 23, quoting State v. Langford, 8th Dist. Cuyahoga No. 83301, 2004-Ohio-3733, ¶ 20-21. Aiding and abetting may be shown by direct or circumstantial evidence, and a defendant‘s participation may be inferred from the defendant‘s presence, companionship and conduct before and after the offense is committed. Howard at ¶ 23, citing Langford at ¶ 21, citing State v. Cartellone, 3 Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981). A defendant may “aid” or “abet” another in the commission of an offense by his words, gestures, deeds or actions.
{26} Capp argues that since he was not in the cab of the pickup truck with the two men who handled the gun, did not hand either of them a weapon at the time of the shooting and had no weapon himself of any kind, the trial court should have granted his
{27} If complicity is proven, a defendant is subject to a sentencing enhancement on a firearm specification regardless of whether he was the principal offender or an unarmed accomplice. State v. Chapman, 21 Ohio St.3d 41, 42-43, 487 N.E.2d 566 (1986); Howard at ¶ 24 (“It is well settled that an unarmed accomplice can be convicted of an underlying felony, together with a firearm specification, based on an aider and abettor status.“), quoting State v. Porch, 8th Dist. Cuyahoga No. 65348, 1994 Ohio App. LEXIS 1936, *11 (May 5, 1994). “In such a case, the actions of the principal are imputed to the accomplice, and the accomplice may be found to have committed every element of the offense committed by the principal, including possession of the weapon.” State v. Humphries, 8th Dist. Cuyahoga No. 99924, 2014-Ohio-1230, ¶ 18, citing State v. Frost, 164 Ohio App.3d 61, 2005-Ohio-5510, 841 N.E.2d 336 (2d Dist.), and State v. Alexander, 8th Dist. Cuyahoga No. 98941, 2013-Ohio-2533; State v. Noor, 10th Dist. Franklin No. 13AP-165, 2014-Ohio-3397, ¶ 51, fn. 2 (“A firearm specification is not a separate offense but, rather, a sentencing provision that enhances the penalty for the associated predicate offense.“).
{28} In Howard, for example, this court upheld a defendant‘s convictions for felonious assault, improper discharge of a weapon into a habitation, having a weapon while under disability and the accompanying one-, three- and five-year firearm specifications based on a finding of complicity under
{30} To support a conviction for a firearm specification, the jury must find that the defendant or an accomplice had a firearm on or about his person or under his control while committing the offense and displayed, brandished, or indicated possession of the firearm or used it to facilitate the offense. See State v. Mincy, 1st Dist. Hamilton No. C-060041, 2007-Ohio-1316, ¶ 49-51; State v. Johnson, 8th Dist. Cuyahoga No. 99656, 2013-Ohio-5430, ¶ 25 (defendant was properly convicted of two firearm specifications under
{32} There was also evidence from which the jury could have reasonably concluded that Capp directed the actions of Winters in shooting Marshall. When Capp returned to Hayne‘s house a third time, he was hiding in the back of the pickup truck. Hayne testified that after the pickup truck stopped, Capp popped up from the bed of the pickup truck and said, “T” — which the jury could reasonably infer was directed to Troy
{33} Capp‘s conduct following the shooting further supports the jury‘s finding that he acted in complicity with Jones and Winters. Walter testified that after the shots were fired he heard Capp say, “Take that, b* * * * * *” as the pickup drove off. Hayne
{34} Following a thorough review of the record, we find that there is sufficient evidence to support a finding, beyond a reasonable doubt, that the shooting was a joint and concerted effort and that Capp acted in complicity with Winters and Jones in committing the offenses at issue. Based on his status as an aider and abetter, Capp was properly convicted of both the underlying offenses for felonious assault and illegal discharge of a firearm and the associated three-year firearm specifications in Counts 1, 2 and 3.
{35} Capp‘s assignment of error is overruled.
Failure to Address Specification in Sentencing Journal Entry
{36} Although not identified as a separate assignment of error, as Capp points out in his brief, the trial court failed to address the firearm specifications in Count 3 at the sentencing hearing or in its sentencing journal entry. This error does not render the trial court‘s judgment nonfinal. State ex rel. Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192 (journal entry was a final appealable order despite not disposing of every firearm specification of which defendant was found guilty). However, we remand the case so that the trial court may address the firearm specifications of which Capp was convicted in Count 3.
{37} Judgment affirmed; remanded to address sentencing on the firearm specifications in Count 3.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for correction of the journal entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR