[Cite as State v. Capp, 2016-Ohio-295.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102919
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DAVID CAPP DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED; REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-583833-A
BEFORE: E.A. Gallagher, P.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 28, 2016 ATTORNEY FOR APPELLANT
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 EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant David Capp appeals his convictions on three three-year
firearm specifications under R.C. 2929.14(B)(1) and 2941.145(A). Capp contends that
there was insufficient evidence to support his convictions on the firearm specifications
and that the trial court erred in denying his Crim.R. 29 motion for acquittal as to these
specifications. For the reasons that follow, we affirm Capp’s convictions; however, we
remand the case so that the trial court may address the firearm specifications associated
with Count 3 as to which Capp has not been sentenced.
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 R.C. 2903.11(A)(1) (Counts 1 and 2), one count of
discharge of a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3)
(Count 3) and one count of having weapons while under disability in violation of R.C.
2923.13(A)(2) (Count 4). Counts 1, 2 and 3 also carried one-year and three-year firearm
specifications under R.C. 2941.141(A) and 2941.145(A), respectively. Capp pled not
guilty. He waived his right to a jury trial on the having weapons while under disability
count. The remaining counts were tried before a jury. A summary of the evidence
presented at trial relevant to the issues in this appeal follows.
{¶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, was at her residence and wanted to talk with her. She testified that she had known Capp
since she was 12 and had dated him three different times in the past 13 years. Hayne
acknowledged that there was “bad blood” between them and testified that, approximately
three weeks earlier, Capp had shattered her windshield and she had changed her cell
phone number to avoid contact with him. She stated that she believed Capp was angry
with her because she had stopped talking to him.
{¶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 walked to the driver’s side of the vehicle, lifted up his shirt, took something from his
pants and placed it inside the vehicle. Winters began pacing back and forth, asking
Hayne, “Where’s your boyfriend at? When’s he coming? When’s he gonna get here?
We got something for him.” Hayne testified that Capp said “[t]he same thing,”
“[s]creaming, yelling, cussing, [and] being very irate.” Hayne then called Marshall.
She testified that she told Marshall that Capp and Winters were outside the house being
“very irate” and “threatening to fight him” and that he needed to get home. After Hayne
spoke with Marshall, she told the two men that Marshall was on his way home. Capp
and Winters waited 15 minutes then left in the red pickup truck. When they left,
Winters was driving and Capp was in the passenger’s seat.
{¶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. {¶8} Marshall arrived home at approximately 4:00 p.m. A group of seven to ten
neighbors were standing with Hayne in or near the street in front of Marshall’s house.
Marshall began speaking with Hayne and their next-door neighbor, attempting to figure
out what was going on, when he saw a red S-10 pickup truck drive up the street. Hayne
pointed the truck out to Marshall and said, “There they are right there.” The pickup
truck stopped on the opposite side of the street, several houses down from Marshall’s
house. Marshall saw a driver and passenger in the pickup truck. He did not know the
identities of the driver or passenger at the time but later learned that the driver was
Winters and the passenger was John Jones.
{¶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. {¶11} Marshall testified that within seconds after Capp spoke, Winters fired the
gun and hit the ground near Marshall’s feet. Winters raised the gun and fired three more
shots, shooting Marshall twice in the left thigh and once in the right thigh. Marshall fell
to the ground. Walter and Hayne came over to help Marshall as the pickup “peeled off
and left” heading south toward Denison.
{¶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 Shoulders. Sergeant Shoulders hid under a coat or blanket in the back seat of Hayne’s
vehicle as she drove to meet Capp. A number of unmarked police cars followed them.
As Hayne drove out to meet him, Capp called Hayne and changed their meeting place
several times. Hayne testified that during one of their telephone conversations, Capp
told Hayne that “if he had the strength to pull the trigger himself he would have.”
Hayne ultimately met Capp in the back of the Marc’s parking lot on West 150th Street in
Cleveland. Hayne testified that Capp told her to move to the passenger’s side of the
vehicle and that as Capp slid into the driver’s seat, Sergeant Shoulders put a gun to the
back of his head and told Capp to put his hands up. Capp complied and was
apprehended.
{¶15} At the close of the state’s case, Capp moved for acquittal on all counts,
including the firearm specifications, pursuant to Crim.R. 29(A). The trial court denied
the motion. Capp presented no witnesses in his defense. He renewed his Crim.R.
29(A) motion, and, once again, the trial court denied the motion.
{¶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 not address the firearm specifications in Count 3 at the sentencing hearing or in its
sentencing journal entry. This appeal followed.
{¶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) and 2941.145.
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 Crim.R. 29 motion for
acquittal on the three-year firearm specifications because the state failed to present
sufficient evidence establishing (1) that he possessed or used a firearm or (2) his
complicity as to the firearm specifications.
{¶19} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.
State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Crim.R. 29 mandates
that the trial court issue a judgment of acquittal where the state’s evidence is insufficient
to sustain a conviction for an offense. State v. Taylor, 8th Dist. Cuyahoga No. 100315,
1 Capp does not challenge his convictions on the one-year firearm specifications or the base offenses. Nor does he challenge his conviction for having weapons while under disability. 2014-Ohio-3134, ¶ 21. Accordingly, we review a trial court’s denial of a defendant’s
motion for acquittal using the same standard we apply when reviewing a
sufficiency-of-the-evidence claim. Id. at ¶ 21-23 (“Crim.R. 29(A) and sufficiency of
evidence review require the same analysis.”), citing Cleveland v. Pate, 8th Dist.
Cuyahoga No. 99321, 2013-Ohio-5571.
{¶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 R.C. 2941.145(A). As to each of the three-year firearm specifications, the state was required to prove beyond a reasonable doubt that “the offender had a firearm on or about the offender’s person or under the offender’s control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense.” R.C. 2941.145(A); R.C. 2929.14(B)(1).
{¶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 the principal offender at trial. Instead, the state proceeded on the theory that Capp was
complicit with Winters and Jones in the commission of the offenses as an “aider or
abettor.”
{¶23} Under Ohio’s complicity statute, R.C. 2923.03, “[n]o person acting
with the kind of culpability required for the commission of an offense, shall * * * [a]id or
abet another in committing the offense; * * * .” R.C. 2923.03(A)(2). “A charge of
complicity may be stated * * * in terms of the principal offense.” R.C. 2923.03(F). A
person who is guilty of complicity in the commission of an offense “shall be prosecuted
and punished as if he were a principal offender.” Id.
{¶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 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.” State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. As this court explained in State v. Howard, 8th Dist. Cuyahoga No.
97695, 2012-Ohio-3459:
“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
Crim.R. 29 motion on the three-year firearm specifications because the state failed to
prove that he “specifically aided or abetted Troy Winters in brandishing, possessing or
using the firearm at the time of the shooting incident” and that, therefore, there was insufficient evidence for the jury to convict him of the three-year firearm specifications.
We disagree.
{¶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 R.C. 2923.03(A)(2) even though the defendant himself never possessed a gun. Howard, 8th Dist. Cuyahoga No. 97695,
2012-Ohio-3459, at ¶ 2, 25. The victim was the father of the defendant’s ex-girlfriend,
Madelyn Jenkins. Id. at ¶ 4, 6. The defendant, Andre Howard, Jr., and Jenkins, who
had recently broken up, had an argument, and Jenkins went over to her father’s house.
Id. at ¶ 3-5, 20. Howard drove by her father’s house three times with three other people in
the vehicle. Id. at ¶ 5. During one of those trips, he stopped the car at a stop sign and
yelled, “I’m coming right back.” Id. When Howard drove past the house a fourth time,
one other person was in the vehicle with him, and two bikes followed the vehicle as it
drove down the street. Id. As the vehicle slowly approached the house, shots were
fired by the men on the bikes and the passenger in Howard’s vehicle. Id. at ¶ 5, 7. The
victim was hit in the head by a bullet. Id. at ¶ 6. The next day Howard drove by the
house again and made a “gun-like gesture.” Id. at ¶ 19. Although there was no claim
Howard was one of the shooters, the court found that he was the driver of the vehicle
involved in the shooter and the “instigator” of the shooting. Id. at ¶ 21. The court
found that Howard’s conduct before and after the offenses as well as his role as the driver
of the vehicle was sufficient to support the trial court’s finding that Howard “acted in
complicity with the men carrying the weapons.” Id. at ¶ 25. As such, he was subject to
the “‘same prosecution and punishment, including sentencing enhancements’” as the
principal offenders. Id. at ¶ 24, quoting State v. Fulton, 8th Dist. Cuyahoga No. 96156,
2011-Ohio-4259, ¶ 42. A similar conclusion is warranted in this case. {¶29} Capp does not contend that any of the elements of the underlying offenses of
felonious assault in violation of R.C. 2903.11(A)(1) or illegal discharge of a firearm in
violation of 2923.162(A)(3) were not met and does not claim that the state otherwise
failed to present sufficient evidence to support his convictions on those charges under a
complicity theory. Capp likewise does not dispute that the state presented sufficient
evidence to prove that Winters had a firearm “on or about [his] person or under [his]
control while committing the offense” and that he “display[ed] the firearm, brandish[ed]
the firearm, indicat[ed] that [he] possessed the firearm, or us[ed] it to facilitate the
offense[s]” at issue. Capp challenges only his convictions on the three-year firearm
specifications in Counts 1, 2 and 3, claiming that there was insufficient evidence of his
complicity as to these firearm specifications. Contrary to Capp’s argument, however,
once the state proved that Capp was complicit in the commission of the underlying
offenses, the state did not then also need to separately prove Capp’s complicity as to the
associated firearm specifications, i.e., that Capp “specifically aided and abetted Troy
Winters in brandishing, possessing or using the firearm at the time of the shooting
incident.” State v. Moore, 2013-Ohio-1435, 990 N.E.2d 625, ¶ 60 (7th Dist.). (“an
unarmed person can be sentenced for a firearm specification if they were only complicit
in committing the offense to which the specification attached”), citing Chapman, 21 Ohio
St.3d at 42, 487 N.E.2d 566; see also Noor, 10th Dist. Franklin No. 13-AP-165,
2014-Ohio-3397, at ¶ 51, fn. 2 (Because a firearm specification is not a separate offense and does not stand alone, it “does not carry a mens rea separate from commission of the
predicate offense.”).
{¶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 R.C. 2941.145, where, although there was no evidence that defendant held the
firearm, he nevertheless had control over it pursuant to the complicity statute because
there was credible evidence that his accomplice used a firearm to commit the robbery);
State v. Salyer, 12th Dist. Warren No. CA2006-03-039, 2007-Ohio-1659, ¶ 30 (“A
defendant may be convicted of an offense, which includes a firearm specification, where
his co-defendant or uncharged accomplice utilized a firearm in the commission of the
offense and the defendant, himself, is found to have acted as an accomplice.”). Once it
was established that Capp aided and abetted Winters in committing the underlying
offenses and that Winters used the firearm to facilitate the offenses at issue, Winters’ use
of the firearm was properly imputed to Capp and Capp was subject to the same
punishment, including the sentencing enhancements resulting from the firearm
specifications, as the principal offender, Winters. {¶31} Viewing the evidence in the light most favorable to the state, Capp’s
participation in the crimes at issue and shared criminal intent can be reasonably inferred
from his conduct and statements both before and after the shooting. This is not a case in
which a defendant was merely present at the scene of an incident involving others. The
evidence demonstrates that Capp assumed an active role in the commission of the
offenses and in causing the shooting to occur. The state presented ample evidence
establishing that it was Capp’s relationship with Hayne and his anger or jealously
following Hayne’s reconciliation with Marshall that led to the shooting. It was Capp
who had the connection to Hayne and Marshall — not Winters or Jones. The record
establishes that on the day of the shooting, Capp showed up at Hayne’s house twice
before the shooting, looking for Hayne and threatening to “beat up” Marshall. Hayne
testified that the second time Capp showed up at her home, he and Winters asked Hayne
where Marshall was and when he was going to return because they had “something for
him.” Marshall testified that when Hayne called him during his outpatient treatment, 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.”
{¶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 Winters a.k.a. “T.J.” — “we’re going to spray this b * * * * up and dip.” Marshall
testified that within seconds after Jones handed the gun to Winters, Capp stood up in the
back of the pickup truck and called out, “Kill that mother f * * * * *.” Winters then
began shooting Marshall. This evidence, if believed, was sufficient to support a finding
that Capp “encourage[d],” “advise[d]” and/or or “incite[d]” Winters in the commission of
the offenses at issue and “share[d] [his] criminal intent” to harm Marshall by shooting
him with the firearm. See, e.g., In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849
N.E.2d 286, ¶ 1, 13-14, 17 (sufficient evidence existed to support a finding of complicity
where defendant was part of a gang who had been passing around a gun and defendant
was heard to shout “shoot” and “shoot the [expletive]” immediately before shots were
fired by an unidentified member of the gang); State v. Hughes, 9th Dist. Summit No.
27061, 2014-Ohio-4039, ¶ 25-29 (there was sufficient evidence that defendant
“supported, assisted, * * * [or] cooperated with” assailants when she led the men into the
victim’s apartment, smiled at them, stood by and watched as they assaulted and robbed
the victim, showed no fear or concern for him during the attack, left the apartment at the
same time as the assailants, never called the police, never called to check on the victim
and knew at least one of the assailants to support finding that defendant aided and abetted
robbery).
{¶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 testified that after the shooting Capp told her that “if he had the strength to pull the trigger
himself he would have.”
{¶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. It is ordered that appellee recover from appellant costs herein taxed.
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