STATE OF OHIO, Appellee v. KASHAUN SIBLEY, Appellant
C.A. No. 16CA010908
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 31, 2017
2017-Ohio-7015
SCHAFER, Judge.
COUNTY OF LORAIN ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 15CR091955
SCHAFER, Judge.
{¶1} Defendant-Appellant, Kashaun Sibley, appeals from his convictions in the Lorain County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} The Lorain County Grand Jury indicted Sibley on the following six counts: (I) attempted murder in violation of
{¶3} Prior to trial, Sibley retained the same attorney as Potts. In so doing, Sibley signed a potential conflicts waiver. The State subsequently made a motion to prohibit defense counsel from representing both Potts and Sibley due to the potential conflict of interest. The trial court held a hearing on the State‘s motion, at which time it inquired about any potential conflicts of interest that may arise from trial counsel‘s dual representation. Trial counsel, Potts, and Sibley each informed the trial court that they were aware of the risks involved with the dual representation and further asserted that no conflict of interest existed in this case. Sibley and Potts both informed the trial court that they wished to be represented by the same attorney. The trial court ultimately permitted trial counsel to represent both defendants, over the State‘s objection. Potts’ and Sibley‘s trials were subsequently consolidated and tried together to a jury.
{¶4} At trial, 13 witnesses testified on the State‘s behalf. At the close of the State‘s case-in-chief, the defense made a
{¶5} Sibley filed this timely appeal and presents four assignments of error for our review. As Sibley‘s first and second assignments of error implicate similar issues, we elect to address them together.
II.
Assignment of Error I
The dual representation of Sibley and Potts was a conflict of interest and constituted ineffective assistance of counsel, depriving Sibley to a fair trial. [sic.]
Assignment of Error II
The consolidation of Sibley‘s trial with Potts, without inquiry by the court as to the risk that would be undertaken by Sibley, amounted to plain error.
{¶6} In his first assignment of error, Sibley argues that his trial counsel‘s dual representation of him and Potts constituted ineffective assistance of counsel. In his second assignment of error, Sibley contends that the trial court‘s failure to inquire into the potential conflict of interest posed by the consolidation of his and Potts’ trials amounted to plain error. We disagree with both arguments.
{¶7} The Sixth Amendment right to the effective assistance of counsel secures to a criminal defendant both the right to competent representation and the right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 (1981). “[T]he United States Constitution is violated by an actual conflict of interest, not a possible one.” State v. Gillard, 78 Ohio St.3d 548, 552 (1997). As a result, “[w]hen a possible conflict of interest exists, a defendant is entitled only to an inquiry by the trial court.” Id.
{¶8} A possibility of a conflict exists if the “‘interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties.‘” State v. Dillon, 74 Ohio St.3d 166, 168 (1995), quoting Cuyler v. Sullivan, 446 U.S. 335, 356, fn. 3 (1980) (Marshal, J.,
{¶9} An “actual conflict of interest,” for purposes of the Sixth Amendment, is “a conflict of interest that adversely affects counsel‘s performance.” Mickens v. Taylor, 535 U.S. 162, 172, fn. 5 (2002); see also Gillard at 552. Thus, to prove an “actual conflict of interest,” the defendant must show that his counsel “actively represented conflicting interests,” and that the conflict “actually affected the adequacy of his representation.” Id. at 166, 171, quoting Cuyler at 349-350. In order to show such a conflict, a defendant must “point to ‘specific instances in the record to suggest an actual conflict or impairment of [his] interests.‘” United States v. Hall, 200 F.3d 962, 965-66 (6th Cir.2000), quoting Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.1987) (internal quotation omitted). An “adverse effect” is established where the defendant points to “some plausible alternative defense strategy or tactic [that] could have been pursued, but was not because of the actual conflict impairing counsel‘s performance.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.2000) (internal quotation omitted); see also Gillard at 553. While it is not necessary to prove that the defense theory would have been successful, it is necessary to show that the alternative theory was viable. Gillard at 553. Additionally, an appellant “‘must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney‘s other loyalties or interests.‘” Id., quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985).
{¶10} In the present case, Sibley signed a written potential conflict of interest waiver upon retaining the services of his trial counsel, who at that point was already representing Potts in this matter. The State subsequently made a motion to prohibit defense counsel from representing both Potts and Sibley due to a potential conflict of interest stemming from the dual representation. The trial court held a hearing on the State‘s motion, at which time the trial court conducted an extensive inquiry concerning the potential conflict of interest. During this inquiry, trial counsel assured the trial court that he had spoken with Potts and Sibley about a potential conflict of interest arising from his dual representation, but stated there “did not appear to be any potential conflict” at that time. The trial court subsequently engaged in a colloquy with Sibley on the record where Sibley stated that he had spoken with his attorney and was aware of the risks associated with having the same attorney as his co-defendant. Sibley insisted that a conflict of interest “wouldn‘t happen” in this case because neither he nor Potts committed the alleged offenses. Sibley then stated that he wished to keep his attorney. The trial court then engaged in a similar colloquy with Potts on the record. The trial court allowed Potts and Sibley “to think about [the dual representation] over the weekend.” When neither defendant indicated the following week that they wished to reconsider the dual representation, the trial court ruled, over the State‘s objection, that Potts and Sibley could be represented by the same attorney.
{¶11} However, the record indicates that Sibley did not object to the dual representation at trial. Because Sibley did not object to his attorney also representing Potts, Sibley bears the burden of demonstrating that an actual conflict of interest adversely affected his trial counsel‘s performance. Cuyler at 348. On appeal, Sibley argues that an actual conflict of interest arose once the State‘s witnesses, namely Tolliver, Corinna Magrum, and Marcus Delaney, provided testimony implicating him in the crimes. Sibley contends that a plausible alternative theory
{¶12} After a careful examination of the record, we determine that Sibley‘s alternative defense strategy or tactic of blaming Potts and Tolliver for the crimes is not a viable one since it is belied by other evidence implicating him in the shooting of Mr. Delaney. The evidence presented at trial, which is more fully detailed in Sibley‘s third assignment of error, reveals that Sibley, Potts, and Tolliver drove together to Gary Avenue with the intent to rob Mr. Delaney. Tolliver testified that he saw Potts and Sibley both carrying firearms. A forensics laboratory employee with the Ohio Bureau of Criminal Investigation, testified that his examination of five cartridge cases found at the scene of the crime led him to conclude that at least two different firearms were used on the day in question. A resident of Gary Avenue testified that he saw three men sitting on the back porch of the abandoned house moments before Mr. Delaney was shot. Indeed, Mr. Delaney identified Sibley in court as the man who shot him on the day in question. Another resident of Gary Avenue testified that he saw at least three men fleeing from the scene immediately following the shooting. This neighbor also testified that while the three men were fleeing, one of the men “turned off” while the other two men continued running together. This neighbor‘s testimony supports Corinna Magrum and Mario Escobar‘s respective testimony, which was that Potts and Tolliver ran to their house after the shooting, with Sibley eventually arriving a bit later. Because Sibley‘s alternative theory is not viable, we conclude that trial counsel‘s purported conflict of interest did not adversely affect his performance at trial. Accordingly, we determine that Sibley was not deprived of his Sixth Amendment right to effective counsel.
{¶13} Turning to his second assignment of error, Sibley contends that the trial court committed plain error by failing to inquire about the potential risks that may arise in the consolidation of his and his co-defendant‘s trials. However, the body of Sibley‘s second assignment of error fails to provide the plain error standard of review, let alone any analysis as to how he has satisfied that standard. See
{¶14} Sibley‘s first and second assignments of error are overruled.
Assignment of Error III
The verdicts for Aggravated Robbery and Tampering with Evidence, as defined by the court, in counts two, three, and six were not supported by sufficient evidence.
{¶15} In his third assignment of error, Sibley argues that his convictions for aggravated robbery and tampering with evidence1 are unsupported by sufficient evidence. We disagree.
{¶16} “‘We review a denial of a defendant‘s
{¶17} This matter implicates Sibley‘s convictions for aggravated robbery in violation of
(A) No person, in attempting or committing a theft offense * * *, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have 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;
* * *
(3) Inflict, or attempt to inflict, serious physical harm on another.
{¶18} At trial, Tolliver, who is Potts’ brother, testified that he went to Potts’ house on December 23, 2014, where he met up with Potts and a man known to him as “Tushay.” Tolliver identified Sibley in court as the man he knows as “Tushay.” Tolliver testified that on the day in question, Potts told him that he was going to rob Mr. Delaney. Tolliver testified that he, Potts, and “Tushay” drove a red truck to the south side of Lorain and parked the truck near Homewood Drive. According to Tolliver, upon parking the truck, Potts again stated that they were going to “rob the dude” and told him that he had to help. Tolliver stated that Potts then removed a gun from the middle console of the truck and placed it in his pants. Tolliver testified that the plan was to rob Mr. Delaney at an abandoned house on Gary Avenue, which was a neighborhood he was familiar with. Tolliver stated that he, Potts, and “Tushay” then walked from the truck to the nearby abandoned house and waited on the back porch as Potts texted Mr. Delaney to lure him to their location. Tolliver stated that when Mr. Delaney arrived at the house, he met him near the sidewalk while Potts and “Tushay” waited out of sight. Tolliver stated that while he walked up the driveway and towards the house with Mr. Delaney, Potts and “Tushay” both ran at Mr. Delaney with a gun pointed at him. Tolliver testified that he heard either Potts or “Tushay” tell
{¶19} Officer Cielo Rodriguez of the Lorain Police Department also testified at trial. Officer Rodriguez testified that he was the first responding officer on the scene following Mr. Delaney being shot. Officer Rodriguez testified that he arrived to the scene at 10:43 p.m., at which time he discovered Mr. Delaney laying in the front yard with a gunshot wound to the left side of his abdomen. Officer Rodriguez also testified that he located a number of Mr. Delaney‘s personal belongings, including his wallet and keys, on the lawn “far away” from where Mr. Delaney was laying. Lastly, Mr. Delaney testified at trial, at which time he identified Sibley as the individual who shot him on the night in question.
{¶20} Based on the foregoing evidence, we conclude that the State presented sufficient evidence at trial demonstrating that Sibley attempted to commit a theft offense against Mr. Delaney on the day in question. The evidence clearly demonstrates that Sibley and Potts lured Mr. Delaney to the Gary Avenue residence on December 23, 2014, with the intent to rob him. Although Sibley argues that no theft offense was either attempted or committed based on the fact that nothing was ever taken from Mr. Delaney, we must reject this argument. “It is not necessary * * * that a theft actually be completed for an aggravated robbery to occur because, as clearly indicated by
{¶21} This matter also implicates Sibley‘s conviction for tampering with evidence in violation of
{¶22} The trial court also instructed the jury on complicity.
No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
The Supreme Court of Ohio has held that:
[t]o 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. Such intent may be inferred from the circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “[P]articipation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.” (Internal quotations and citation omitted.) Id. at 245.
{¶23} Here, Officer Rodriguez testified at trial that as part of the investigation into Mr. Delaney‘s shooting, the Lorain Police Department utilized a canine to locate the suspects or additional evidence. Officer Rodriguez testified that the canine tracked the suspects “northbound [on Gary Avenue] past Homewood [Drive]” and stopped at Corinna Magrum‘s residence on Grove Avenue.
{¶24} Ms. Magrum testified that on December 23, 2014, she was living on Grove Avenue with her boyfriend, Mario Escobar. Ms. Magrum testified that she knows Potts and Sibley, as she used to purchase drugs from them “all the time.” Ms. Magrum testified that on December 23, 2014, Potts and Tolliver ran into her house through the backdoor and were clearly out of breath. She testified that Potts asked for bleach, which she provided for him. She testified that she heard Potts say that he shot a gun and needed to get gun residue off of his hands. She further testified that Potts removed his clothes and “scrubbed himself down” with the bleach. Ms. Magrum stated that she then washed Potts’ clothes and that Mario provided Potts with new clothes.
{¶25} Mario Escobar buttressed Ms. Magrum‘s testimony. Specifically, Mr. Escobar testified that Potts and his brother ran into his house through the backdoor. Escobar stated that Potts washed his hands with bleach and that his girlfriend, Ms. Magrum, washed Potts’ clothes. Mr. Escobar stated that Potts was also given new clothes to change into. Mr. Escobar further testified that Sibley ultimately arrived at his house after Potts and Tolliver. Mr. Escobar testified that Potts said to Sibley, “I popped him.” Lastly, he testified that Potts and Sibley were picked up in a van, whereas Ms. Magrum testified that Sibley picked Potts up and they left together.
{¶26} Based on the foregoing, we conclude that there was sufficient evidence presented at trial to sustain Sibley‘s conviction for tampering with evidence via complicity. The evidence
{¶27} Sibley‘s third assignment of error is overruled.
Assignment of Error IV
The verdicts for Attempted Murder, Aggravated Robbery, Felonious Assault, and Tampering with Evidence, as defined by the court, in counts one, two, three, four, five, and six were against the manifest weight of the evidence.
{¶28} In his fourth assignment of error, Sibley contends that his convictions are against the manifest weight of the evidence. We disagree.
{¶29} A review of the manifest weight of the evidence and the sufficiency of the State‘s evidence are separate and legally distinct determinations. State v. Gulley, 9th Dist. Summit No. CA19600, 2000 WL 277908, *1 (Mar. 15, 2000). When applying the manifest weight standard, appellate courts are required to consider the whole 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). Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against the conviction,” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶30} In arguing that his convictions are against the manifest weight of the evidence, Sibley argues that no physical evidence ties him to the shooting. Sibley also argues that two of the State‘s witnesses were not credible. Specifically, Sibley argues that Tolliver‘s testimony was not credible because he struck a plea agreement with the State in exchange for his testimony. Sibley also argues that Mr. Delaney‘s testimony was not credible because he was continually unable to identify him as the shooter in the wake of the shooting. Sibley points to the fact that Mr. Delaney could only identify him as the shooter nearly four months after the day in question, once he had an opportunity to conduct his own research via social media.
{¶31} However, after a thorough review of the record, we cannot conclude that the jury lost its way and committed a manifest miscarriage of justice in convicting Sibley of the charges contained within the indictment. Although Tolliver struck a deal with the State in exchange for
{¶32} Sibley‘s fourth assignment of error is overruled.
III.
{¶33} With all four of Sibley‘s assignments of error having been overruled, the judgment of the Lorain County Court of Common Pleas is affirmed.
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
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.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
NICHOLAS J. HANEK, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.