State v. WrightState v. Wright
Dated: June 17, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, Demarco D. Wright, appeals from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} In the early morning of October 25, 2013, Demarco D. Wright, Teon Lipkins, and Derek Recktenwalt robbed the house located at 617 Brown Street in Akron, Ohio in pursuit of money and marijuana. At the time of the robbery, four of the residence’s five tenants, all college students, were at home. The tenants at home during the robbery were McKinley Lancaster, Roy Illegbodu, Jacob Walker, and Trevor McClung. Also present in the home was Mr. Lancaster’s girlfriend, Devin Lawrence. One tenant, Jackson Liebler, was not in the residence at the time of the robbery.
{¶3} The residence in question consists of three floors. At the time of the robbery, Mr. Walker was in his first floоr bedroom. He never left his room during the robbery and did not see
{¶4} At around 1:00 a.m., Mr. Wright, Mr. Lipkins, and Mr. Recktenwalt broke open the front door of the residence and entеred the home. Trevor McClung testified that he awoke in the middle of the night with three unknown men standing in his bedroom demanding money and marijuana. Mr. McClung testified that one of the men wore a red ski mask while another man, who he identified as Demarco Wright, held a gun to his head during the encounter. Mr. McClung then testified that the men tied his wrists and feet together with a 20-foot guitar amplifier cord. He also testified that the mеn took his cell phone.
{¶5} McKinley Lancaster stated that he walked downstairs to investigate the loud noises. Upon walking down the stairs to the second floor, Mr. Lancaster witnessed an unknown person enter one of his roommates’ rooms. Another man, identified as Demarco Wright, then pointed a gun at Mr. Lancaster’s head and ordered him to sit down on the stairs and not move. Mr. Lancastеr complied with Mr. Wright’s command. Mr. Lancaster testified that Mr. Wright then entered Mr. Illegbodu’s bedroom with his gun.
{¶6} Roy Illegbodu testified that he heard loud noises in the hallway before two of the three suspects kicked in his door and ordered him to stay on his bed face down and not move. Mr. Illegbodu identified Demarco Wright as one of the two men in his room that night. The other man wore a red ski mask, according to Mr. Illegbodu. Mr. Illegbodu testified that Mr. Wright held a gun to his head and demanded money and marijuana. The two suspects then took money, marijuana, and a cell phone from Mr. Illegbodu.
{¶7} Devin Lawrence testified that she heard Mr. Lancaster say, “Please don’t shoot” after he walked downstairs to investigate the loud noises. Ms. Lawrence immediately called 911 to report the robbery and hid behind a couch in the attic bedroom. Ms. Lawrence testified that one of the intruders, later identified as Teon Lipkins, then walked upstairs into the bedroom where she was hiding. Ms. Lawrence stated that the suspect looked at her and began rummaging through the room’s belongings. Upon hearing police sirens, the suspect attempted to kick out one of the room’s windows, then kicked out another window and сrawled outside onto the roof of the house.
{¶8} The police eventually arrived at the scene and arrested Mr. Wright, Mr. Lipkins, and Mr. Recktenwalt. The police returned the cell phones that the suspects had stolen from Mr. McClung and Mr. Illegbodu. The police also returned a check that the suspects had stolen from Mr. Liebler’s nightstand after they broke into and ransacked his bedroom.
{¶9} Mr. Lipkins and Mr. Recktenwalt eventually pled guilty to the charges against them in return for lesser sentences. Mr. Wright was indicted on three counts of aggravated robbery (
{¶10} After the State rested at trial, Mr. Wright’s counsel moved for a judgment of acquittal on the charges for aggravated robbery against Mr. Lancaster and kidnapping against Ms. Lawrence pursuant to
{¶11} Mr. Wright timely appealed his convictions and sentence and raises two assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT-APPELLANT’S MOTION FOR JUDGEMENT OF ACQUITTAL UNDER CRIMINAL RULE 29.
{¶12} In his first assignment of error, Mr. Wright argues that his convictions for aggravated robbery against McKinley Lancaster and kidnapping against Devin Lawrence are based on insufficient evidence and that the trial court erred in denying his
Sufficient Evidence
{¶13} “We review a denial of a defendant‘s
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 cоnvince 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. “In essence, sufficiency is a test of adequacy.” Thompkins at 386.
{¶14} Ohio’s aggravated robbery statute states in relevant part that “[n]o person, in attempting or committing a theft offense, * * * shall * * * [h]ave 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.”
{¶15} After reviewing the entire record, we conclude that the State presentеd sufficient evidence to support Mr. Wright’s conviction of aggravated robbery under
{¶16} This testimony, if believed, shows that Mr. Wright possessed a deadly weapon and brandished it while he and the two other suspects committed theft offenses against the home’s residents. Mr. Lancaster and Ms. Lawrence’s testimony, if believed, shows that Mr. Wright’s action of restraining Mr. Lancaster by an implicit threat of force allowed Mr. Lipkins, an accomplice, to rummage through Mr. Lancastеr’s bedroom without interruption. Because aiders and abettors are equally liable with principal offenders, see State v. Palfy, 11 Ohio App.2d 142, 147 (9th Dist.1967), we find there to be sufficient evidence to support Mr. Wright’s conviction for aggravated robbery against McKinley Lancaster.
{¶17} Ohio’s kidnapping statute provides, in part, that, “[n]o person, by force, threat, or deception * * * shall * * * restrain the liberty of the other person * * * [t]o facilitate the commission of any felony or flight thereafter[.]”
{¶18} After reviewing the record, we conclude that the State presented sufficient evidence to support Mr. Wright’s conviction of kidnapping against Devin Lawrence under
{¶19} This testimony, if believed, shows that Mr. Wright’s explicit threat of force against Mr. Lancaster caused Ms. Lawrence to become frightened and think that she was unable to leave the attic bedroom lest she get hurt or killed. Additionally, the jury was free to infer that Mr. Lipkins’ presence in the attic bedroom alone constituted enough circumstantial force to restrain Ms. Lawrence’s liberty. As an accomplice, Mr. Wright bears responsibility for Mr. Lipkins’ actions. See Palfy, 11 Ohio App.2d at 147. Moreover, numerous State witnesses testified at trial that Mr. Wright possessed and brandished a firearm during the robbery. As such, this testimony could lead the average mind to conclude that Mr. Wright’s threat of force was purposely made to facilitate the robberies of the home’s occupants. We believe this evidence is
Manifest Weight
{¶20} Mr. Wright next argues that his convictions for aggrаvated robbery against McKinley Lancaster and kidnapping against Devin Lawrence are against the manifest weight of the evidence. We disagree.
{¶21} If a defendant asserts that his convictions are against the manifest weight of the evidence:
[A]n 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). Weight of the evidence pertains to the greater amount of credible evidence produced in a trial to support one side оver the other side. Thompkins, 78 Ohio St.3d at 387. An appellate court should only exercise its power to reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at ¶ 340.
{¶22} In this case, Mr. Wright contends that because he personally did not commit a theft offense against Mr. Lancaster and because neither he nor Mr. Lipkins ever threatened or otherwise spokе to Ms. Lawrence, that his convictions for aggravated robbery against McKinley Lancaster and kidnapping against Devin Lawrence are against the manifest weight of the evidence. However, the jury apparently accepted Mr. Lancaster’s testimony that Mr. Wright held a gun to his head and ordered him not move. The jury also seemed to accept Ms.
{¶23} Additionally, the jury apparently accepted Ms. Lawrence’s testimony that she was afraid to leave the third floor bedroom during the robbery because she believed the intruders were armed after overhearing Mr. Lancaster say “Please don’t shoot” to one of the suspects. The jury was also free to infer that Mr. Lipkins’ mеre presence in the third floor bedroom as he rummaged through the Mr. Lancaster’s belongings constituted enough circumstantial force to restrain Ms. Lawrence’s liberty. Ms. Lawrence’s testimony, if believed, would support the conclusion that Mr. Wright and his accomplice, Mr. Lipkins, restrained Ms. Lawrence’s liberty by means of an implicit threat of force and by circumstantial force for the purpose of carrying out a robbery. As such, we conclude that the jury did not lose its way in convicting Mr. Wright of kidnapping against Ms. Lawrence.
{¶24} Accordingly, Mr. Wright’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT SENTENCED THE DEFENDANT APPELLANT TO FOUR CONSECUTIVE FIREARM SPECIFICATIONS.
{¶25} In his second assignment of error, Mr. Wright argues that his gun specification convictions should merge because the underlying felonies were committed as part of the same act or transaction. We disagree.
{¶27} Mr. Wright contends that the trial judge erred by sentencing him to more than one three-year sentence for the firearm convictions because the underlying felonies were part of the same act or transaction. In support of his argument, Mr. Wright cites to former
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the twо most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
(Emphasis added.) The plain language of
III.
{¶28} Mr. Wright’s assignments of error are overruled, and the judgment of the Summit County Court of Common Pleas is affirmed.
Judgment 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 Summit, 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 Apрeals at which time the period for review shall begin to run.
JULIE A. SCHAFER
FOR THE COURT
WHITMORE, J. CONCURS.
CARR, P. J. CONCURRING IN JUDGMENT ONLY.
{¶29} With regard to the first assignment of error, I agree with the majority that Wright’s conviction for aggravated robbery should be affirmed. I concur in judgment only, however, regarding the Court’s disposition of the kidnapping count involving Devin Lawrence.
{¶30} Although I agree that Wright’s conviction for kidnapping (in count four) was supported by sufficient evidence and not against the manifest weight of the evidence, I would affirm that conviction on the basis of accomplice liability. The majority, however, in affirming the conviction, focuses on the victim’s state of mind during the home invasion, еmphasizing her own subjective fear. I agree with the argument made by defense counsel during closing argument that it is the defendant’s mental state, rather than the state of mind and subjective fears of the victim, which constitutes an essential element of the crime. See State v. Smith, 198 Conn. 147, 153 (1985) (emphasizing that “[i]t is the intent of the accused which the state has to prove, not that of the victim.“). In fact, the victim need not bе fearful at all or even know that her movement is restrained; yet kidnapping will exist. See id. at 152 (“The fact that the victim did not know that she was being restrained is of no consequence.“). Nonetheless, I would conclude
{¶31} I concur with the remainder of the majority’s opinion.
APPEARANCES:
JACOB T. WILL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.