724 N.E.2d 1238 | Ohio Ct. App. | 1999
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *336 This matter presents a timely appeal from a jury verdict and judgment entered upon said verdict by the Mahoning County Common Pleas Court finding defendant-appellant, Cherone Q. Hood, guilty of aggravated robbery with a firearm specification. For the reasons set forth below, the trial court's judgment is affirmed.
As Mr. Walker got into Mr. Jones' car, appellant started to pull away. When Mr. Walker realized that Mr. Jones' car did not have an automatic transmission, he jumped out of the car and ran after appellant. Appellant stopped the Beretta to let Mr. Walker in and drove away. Youngstown Police officers stopped the Beretta soon thereafter, and a gun that was thrown from the car was recovered by the police. Mr. Jones then identified Mr. Walker as the gunman.
Appellant was indicted and tried for aggravated robbery in violation of R.C.
"The trial court erred when it declared a mistrial, sua sponte, during the jury deliberation portion of appellant's first trial."
"The trial court erred when it incorrectly declared a mistrial, and subsequently subjected appellant to double jeopardy for the offense of complicity to aggravated robbery."
It is within a trial judge's sound discretion to grant a mistrial.State v. Sage (1987),
The trial judge's decision to grant a mistrial and retry appellant is reasonable and does not violate the constitutional prohibition against double jeopardy if: (1) there was a manifest or high degree of necessity for declaring a mistrial, or (2) without a mistrial, public justice would have been diminished. See Arizona v. Washington (1978),
Moreover, trial courts have broad discretion in dealing with improper outside juror communication. State v. Phillips (1995),
Because appellant's fourth assignment of error deals with sufficiency of the evidence, we shall address it before the third assignment dealing with weight of the evidence. This assignment contends:
"The evidence was insufficient to support the defendant's conviction for complicity to aggravated robbery."
Sufficiency is the "legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v.Thompkins (1997),
In reviewing the record for sufficiency, we conclude that there exists adequate evidence to support the jury's finding that appellant aided and abetted Mr. Walker in committing aggravated robbery with a firearm. Appellant drove the car that followed the victim home and that served as the get-away car. Mr. Walker used a gun that he found in appellant's car which appellant had placed on the console between the driver and passenger seats. Furthermore, the victim heard appellant instruct Mr. Walker to take his car. Mr. Walker's statement to the police immediately after his arrest stated that he also heard appellant tell him to take the victim's car. Mr. Walker did as appellant instructed until he realized that the victim's car had a standard transmission. *339
There was sufficient evidence for the jury to find that appellant committed complicity to aggravated robbery with a firearm. In accordance, this assignment of error is without merit.
Although we determined that the trial court's judgment is sustained by sufficient evidence, we must still address the question whether the judgment is against the manifest weight of the evidence. Appellant's third assignment of error, which we are addressing last, provides:
"The appellant's conviction for complicity to aggravated robbery was against the manifest weight of the evidence."
The Supreme Court of Ohio described a proper weight of the evidence analysis as follows:
"Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them'." Thompkins, supra at 387.
We must inquire as to whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Id. We sit as the thirteenth juror when we decide to reverse a jury verdict as against the manifest weight of the evidence. Id.
Appellant argues that the jury clearly lost its way after the trial judge refused to answer their question about whether they had to find that all of the elements of the crime were met. The jurors' question read, "Does everything in the indictment have to be satisfied to bring a guilty verdict. Such as 1. knowledge 2. purpose and especially concurrence? Do we need all elements?" (Jury Question No. 2).
Appellee points out that the judge referred the jurors to the written copy of the jury instructions which they had in their possession. The judge told the jurors to start at page six and read to the end in order to find the answers to their question. The instructions, contained in the transcript, admonish twice that the prosecution must prove all of the essential elements beyond a reasonable doubt. The judge told the jury that if their question was still not answered after reading the instructions, then they could submit another written request for clarification. However, the jury did not ask for reclarification on this topic.
Appellant also complains that Jury Question No. 3, which asked about the phrasing of one sentence in the instructions on aiding and abetting, was improperly construed by the trial court. Appellant contends that said question was a *340 manifestation of the jury's need for reclarification of Jury Question No. 2 on the elements of the offense. However, the jurors did not reinquire as to whether they had to find appellant guilty of all of the elements; they merely asked the court to clarify one sentence dealing with what constitutes aiding and abetting.
After reviewing the record dealing with the jury's questions and the instructions, it is not clear that the jury lost its way on these matters. Furthermore, "[w]eight is not a question of mathematics, but depends on its effect in inducing belief." Thompkins, supra at 386. The jurors had the advantage of observing the demeanor of the witnesses and drawing conclusions therefrom. State v. Mills (1992),
The jury could reasonably have found that appellant and Mr. Walker's testimony at trial lacked credibility and that the victim was correct in that he heard appellant direct Mr. Walker to steal the car. Mr. Walker testified that appellant is his cousin; the jury could reasonably infer that one cousin who is already in prison after pleading guilty to the robbery would attempt to protect the other cousin who has a chance of acquittal. The jury weighed the evidence and found that the greater amount of credible evidence supported the state. Accordingly, this assignment of error is overruled.
For the foregoing reasons, the judgment of the trial court is affirmed.
Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite, JUDGES.
Donofrio, P.J., concurs.
Waite, J., concurs.
APPROVED:
_________________________________ JOSEPH J. VUKOVICH, JUDGE *341