State v. Crosby

2018 Ohio 3793

• Court: Ohio Court of Appeals
• Decided: September 20, 2018
• Docket: 106504
• Status: Published

Opinion

[Cite as State v. Crosby, 2018-Ohio-3793.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106504

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

GERELLE CROSBY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613397-A

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Keough, J.

RELEASED AND JOURNALIZED: September 20, 2018 [Cite as State v. Crosby, 2018-Ohio-3793.] ATTORNEY FOR APPELLANT

Christopher M. Kelley 55 Public Square, Suite 2100 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Brian Radigan Hannah Smith Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 [Cite as State v. Crosby, 2018-Ohio-3793.] SEAN C. GALLAGHER, J.:

{¶1} Gerelle Crosby appeals his conviction for aggravated murder under R.C.

2903.01(B) and the resulting sentence of life in prison plus three years on a firearm

specification. We affirm.

{¶2} Crosby called his cousin requesting the victim’s contact information. Crosby

intended to buy drugs from the victim and called to set up a deal. The victim brought a

friend along; both of them were carrying firearms. The victim and his friend were

driving around the area of East 93rd Street and Quebec Avenue in Cleveland. During

that time, Crosby and a second person were texting or calling the victim asking for his

whereabouts. According to cell phone records, Crosby and the other person were in the

same area while these calls or texts were occurring.

{¶3} The victim and his friend eventually met an unknown person at East 93rd

Street and Quebec Avenue, who got into the backseat of the car. The victim showed the

person, circumstantially identified as Crosby, the drugs. Crosby called another person,

the second number that had been contacting the victim earlier, and Crosby told the victim

that the buyer did not want to handle the transaction in the vehicle. The victim followed

Crosby from the car and into an alley. Immediately thereafter, the victim’s friend heard

gunfire and saw the victim trying to run back to the car. Surveillance video from that

area shows the victim running from the shooter, who is chasing and shooting at the

victim. The victim’s friend returned fire, causing the shooter to flee. The victim was

mortally wounded. {¶4} After the murder, Crosby contacted his cousin and told him to keep Crosby’s

name from the police and that the cousin should not be concerned with anything since he

was not at the scene of the murder. Crosby also told family members and his girlfriend

that he was present at the murder, but did not shoot the victim. Police officers arrested

Crosby, who disclaimed any affiliation with his cousin or the victim, knowledge of the

second phone number or the person who had been contacting the victim, and being

present at the scene of the murder.

{¶5} The jury found Crosby guilty of aggravated murder under R.C. 2903.01(B)

and a three-year firearm specification, amongst several other counts that merged into the

aggravated murder for the purposes of the final conviction. The trial court sentenced

Crosby to life in prison without the possibility of parole, plus a three-year consecutive

prison term on the firearm specification. From this conviction, Crosby appeals,

advancing six assignments of error, some of which are interrelated.

{¶6} In the first, third, and fourth assignments of error, Crosby claims that there is

no evidence demonstrating his complicity in the aggravated murder. We note that

Crosby makes the argument in the first assignment of error that because there is no

evidence of complicity, the trial court erred by so instructing the jury and, in addition, in

the third assignment of error that because there is no evidence demonstrating accomplice

liability, the conviction for aggravated murder is against the weight of the evidence.

Although Crosby presented the third assignment of error in terms of the weight of the

evidence, he expressly indicated that his arguments only addressed the sufficiency of the evidence or whether there was any evidence in support of the complicity theory advanced

by the state. A claim that a jury verdict is against the weight of the evidence involves a

separate and distinct test that is much broader than the test for sufficiency. State v.

Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In light of

the fact that Crosby has presented no separate arguments in support of the claim that the

conviction is against the weight of the evidence, we will solely address the sufficiency of

the evidence as presented. App.R. 16(A)(7); State v. Cassano, 8th Dist. Cuyahoga No.

97228, 2012-Ohio-4047, ¶ 2.

{¶7} Further, as it relates to the complicity instruction, if there is no evidence

supporting the state’s claim that Crosby was complicit in the aggravated murder, then

whether the jury was properly instructed is irrelevant: the conviction must be reversed

based on the insufficiency of the evidence. On the other hand, if there is sufficient

evidence of his complicity in the commission of the aggravated murder, then the jury

instruction was necessarily warranted. In light of the fact that all three of these arguments

are based on Crosby’s belief that there is insufficient evidence of his being complicit in

the aggravated murder, we will address the three assigned errors under the sufficiency of

the evidence framework.

{¶8} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge,

“[t]he 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, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

{¶9} Crosby was convicted of aggravated murder under R.C. 2903.01(B), which

provides in pertinent part that no person shall purposely cause the death of another while

committing or attempting to commit aggravated robbery or robbery. “Under R.C.

2923.03(F), ‘[a] charge of complicity may be stated in terms of [that] section, or in terms

of the principal offense.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70

N.E.3d 508, ¶ 244. As a result, any defendant “‘indicted for aggravated murder in terms

of the principal offense * * * [is] on notice that evidence could be presented that he was

either a principal offender, or an aider and abetter.’” Id., quoting State v. Ensman, 77

Ohio App.3d 701, 703, 603 N.E.2d 303 (11th Dist.1991). In Ohio, there is no difference

between those convicted of complicity in a crime or as a principal offender. McKelton at

¶ 247, quoting State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-Ohio-6969, ¶

70. Further, the state is not required to prove the identity of the principal offender in

order to establish the offense of complicity. McKelton at ¶ 247, quoting In re T.K., 109

Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus.

{¶10} On this point, Crosby contends that there is no direct evidence of his

involvement in the aggravated murder of the victim. According to Crosby, the evidence

demonstrated only that he facilitated the drug transaction, but he had no knowledge that

the unknown principal offender would murder the victim, citing State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 32. In Shabazz, a divided panel

reversed a felony murder conviction under R.C. 2903.02(B) because there was no

evidence that the defendant knew that the principal offender had a firearm until the fatal

shot was fired, citing Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240,188

L.Ed.2d 248 (2014). Id. at ¶ 31-32.

{¶11} Shabazz is not applicable to the particular facts of this case because the

panel concluded there was no evidence that the defendant aided and abetted the principal

in that particular case. Shabazz at ¶ 39-40. In this case, there is evidence that Crosby

aided and abetted the unknown principal by facilitating the encounter with, and the

isolation of, the victim to facilitate the attempted robbery. Shabazz is inapplicable. And

Rosemond, cited as dicta in Shabazz, is not relevant to the current inquiry either.

Rosemond specifically addressed the validity of a jury instruction with respect to

violations of 18 U.S.C. 924(c). Rosemond is not a sweeping decision setting forth a new

rule of constitutional law that can be applied to crimes under state law. Vazquez-Castro

v. United States, 53 F.Supp.3d 514, 521 (D.P.R.2014); Cordero v. United States, 2d Cir.

No. 15-530, 2015 U.S. App. LEXIS 23112, 2 (Mar. 19, 2015); Hughes v. Epps, 561

Fed.Appx. 350, 354 (5th Cir.2014), fn. 4 (Rosemond does not apply to state-law robbery

crime); see also Hicks v. State, 295 Ga. 268, 273, 759 S.E.2d 509 (2014), fn. 3 (same);

People v. Jordan, Mich.App. No. 326735, 2016 Mich. App. LEXIS 1833, 3 (Oct. 11,

2016) (Rosemond is inapplicable to Michigan state aiding and abetting standards because

Rosemond is limited to prosecutions for a particular federal statutory offense); State v. Ward, 473 S.W.3d 686, 693 (Mo.App.2015) (Rosemond is not based on any constitutional

requirement and has no application to state criminal laws); State v. Dull, 372 Wis.2d 458,

2016 WI App. 88, 888 N.W.2d 247 (same).

{¶12} In Ohio, an offender’s complicity to commit a crime may be inferred from

the circumstances surrounding the crime, and that may include the offender’s presence,

companionship, and conduct before and after the crime is committed. State v. Moore,

7th Dist. Mahoning No. 02 CA 152, 2004-Ohio-2320, ¶ 31, citing State v. Johnson, 93

Ohio St.3d 240, 245, 2001-Ohio-1336, 754 N.E.2d 796. Further, circumstantial and

direct evidence possess the same probative value. Id., citing Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492, at paragraph one of the syllabus. “A person is guilty of complicity if

that person aids or abets another in committing an offense while acting with the kind of

culpability required for the commission of an offense.” Moore at ¶ 26, citing R.C.

2923.03(A)(2).

“To ‘aid’ is to assist and to ‘abet’ is to incite or encourage. Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding or abetting the act. * * * [I]n order to aid or abet, whether by words, acts, encouragement, support, or presence, there must be something more than a failure to object unless one is under a legal duty to object.

“The state may demonstrate that an accused is guilty of aiding and

abetting by direct or circumstantial evidence. Participation in criminal

intent may be inferred from presence, companionship, and conduct before

and after the offense is committed.” State v. Mendoza, 137 Ohio App.3d 336, 342, 2000-Ohio-1689, 738 N.E.2d 822 (3d

Dist.), quoting State v. Stepp, 117 Ohio App.3d 561, 568-569, 690 N.E.2d 1342 (4th

Dist.1997).

{¶13} When Crosby’s actions after the murder are considered in conjunction with

his action in setting up the drug transaction and leading the victim away from the safety

of the vehicle and his friend, the jury could reasonably infer that Crosby never intended to

purchase drugs from the victim. The victim’s friend testified that the shots were fired

immediately after Crosby led the victim into the alley, supporting a reasonable inference

that Crosby intended to rob the victim after isolating the victim from his friend and the

safety of the vehicle. Crosby set in motion the drug transaction and the isolation of the

dealer that enabled the failed robbery attempt. See, e.g., State v. Alexander, 8th Dist.

Cuyahoga No. 98941, 2013-Ohio-2533, ¶ 16 (setting up a meeting, luring the victim to

secluded area, calling or messaging to confirm the meeting, among other factors

demonstrating sufficient evidence of a defendant’s complicity to commit robbery and

felonious assault); State v. Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶

32.

{¶14} Further, after the murder, Crosby took steps to remove himself from his

usual places, and he told witnesses to not disclose Crosby’s participation in the events

leading to the murder. It could be inferred from his actions a consciousness of guilt and

that Crosby was not merely trying to buy drugs when a stranger showed up to commit the

murder. Crosby also destroyed or disposed of his cell phone that he had been using at the time of the murder to further conceal his whereabouts, indicating a consciousness of

guilt. See State v. Baskerville, 2017-Ohio-4050, 91 N.E.3d 340, ¶ 30 (9th Dist.); State v.

Knight, 10th Dist. Franklin No. 12AP-317, 2013-Ohio-1462, ¶ 30 (within the province of

the jury to determine whether defendant’s after-the-fact conduct demonstrates

consciousness of guilt). The phone records indicated that Crosby was with the unknown

individual before the attempted robbery that led to the murder. Crosby admitted his

presence during the murder to family members and his significant other, but lied to police

officers upon being arrested. And finally, surveillance video depicted the purposeful

shooting of the victim, as the victim attempted to evade his attackers. Crosby has not

demonstrated that there is insufficient evidence of his complicity in the aggravated

murder predicated on an attempted robbery or aggravated robbery. The first, third, and

fourth assignments of error are collectively overruled.

{¶15} In the second assignment of error, Crosby claims that the trial court erred by

instructing the jury that consciousness of guilt could be inferred if the jury concluded that

Crosby fled the scene as defined in Ohio law. According to Crosby, the jury instruction

was given improperly and necessarily suggested that Crosby was present and his

departure demonstrated some consciousness of guilt. The record does not support

Crosby’s argument. App.R. 16(A)(7).

{¶16} “The giving of jury instructions is within the sound discretion of the trial

court, and we review it for an abuse of discretion.” State v. Jackson, 8th Dist. Cuyahoga

No. 100125, 2014-Ohio-3583, ¶ 42, citing State v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, and State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d

462 (3d Dist.1993). Simply leaving the scene of a crime should not be confused with

“deliberate flight from the area in which the suspect is normally to be found.” Id. at ¶ 45,

quoting State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30, and

State v. Norwood, 11th Dist. Lake Nos. 96-L-089 and 96-L-090, 1997 Ohio App. LEXIS

4420 (Sept. 30, 1997). There must be some evidence that the defendant fled a location or

he attempted to evade police detection. Id.

{¶17} The trial court, in this case, instructed as follows:

Consciousness of guilt. Testimony has been admitted indicating that the defendant fled the scene. You’re instructed that the fact that the defendant fled the scene does not raise a presumption of guilt, but it may tend to indicate the defendant’s consciousness of guilt. If you find that the facts do not support that the defendant fled the scene, or if you find that some other motive prompted the defendant’s conduct, or if you’re unable to decide what the defendant’s motivation was, then you should not consider this evidence for any purpose.

However, if you find that the facts support that the defendant engaged in such conduct and if you decide that the defendant was motivated by a consciousness of guilt, you may, but are not required to, consider that evidence in deciding whether the defendant is guilty of the crimes charged. You alone will determine what weight, if any, to give this evidence.

Thus, the jury was instructed to determine whether Crosby fled the scene of the crime and

to determine his motive for that departure. Irrespective of those findings, the jury was

free to disregard the consciousness of guilt in determining whether Crosby was guilty of

the underlying crimes. The jury instruction in this case follows the pattern instruction.

409 Ohio Jury Instructions, CR Section 409.13 (Rev. Aug. 17, 2005). Crosby is not challenging the form of the instruction, but instead claims that the instruction was not

warranted because there is no evidence that he took purposeful and deliberate actions to

avoid apprehension from the police. In other words, Crosby is claiming that there is no

evidence that he fled as defined in the pattern jury instruction.

{¶18} In light of the form of the instruction, however, we are unable to conclude

that the trial court abused its discretion in giving it. The instruction essentially permitted

the jury to determine whether Crosby fled the scene, and even if it was determined that he

fled the scene motivated by consciousness of guilt, the jury was permitted to disregard

that consideration for the purposes of determining guilt on the individual counts. The

instruction as given permitted the jury to reach its own conclusion as to whether flight

occurred and whether that flight was motivated by consciousness of guilt. State v.

Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 50. The second

assignment of error is overruled.

{¶19} Finally, in the fifth and sixth assignments of error, Crosby claims the trial

court erred by imposing a life sentence without the possibility of parole on the R.C.

2903.01(B) conviction. According to Crosby, the sentence imposed was vindictive or

was not supported by the record or was contrary to law under R.C. 2953.08(G). Thus,

Crosby sought review of his sentence under R.C. 2953.08 but has not identified any

authority governing our review.

{¶20} We cannot review Crosby’s sentence. A defendant’s right to appeal a

sentence is derived from R.C. 2953.08. State v. Lee, 8th Dist. Cuyahoga No. 105894, 2018-Ohio-1839, ¶ 4, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 10. “R.C. 2953.08 “specifically and comprehensively defines the

parameters” of felony-sentencing review. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21. R.C. 2953.08(D)(3) precludes appellate review

of sentences imposed for aggravated murder or murder under sections 2929.02 to 2929.06

of the Revised Code. State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 66 (8th Dist.),

citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 19.

{¶21} This prohibition applies regardless of whether the trial court imposes the

minimum or maximum sentence under the aggravated murder sentencing scheme. In

State v. Jones, 2d Dist. Clark No. 2012 CA 61, 2013-Ohio-4820, ¶ 24, for example, the

defendant attempted to appeal his life sentence without the possibility of parole, imposed

after the defendant was found guilty of aggravated murder. The Second District

concluded that it was without jurisdiction to review the sentence to determine whether

earlier parole eligibility would have sufficed. Id. “The Ohio Supreme Court has held

that this is unambiguous: a sentence for aggravated murder imposed pursuant to R.C.

2929.02 to 2929.06 cannot be reviewed.” Id. at ¶ 22, citing Porterfield.

{¶22} Crosby is attempting to review the evidentiary basis of his life sentence.

We lack jurisdiction to review that aspect of the sentence, and Crosby has not presented

any discussion or legal analysis supporting our review of his sentence under R.C.

2953.08. App.R. 16(A)(7). Further, as it relates to his claim of vindictive sentencing, which is premised on due process concerns, Crosby has not provided any authority for the

proposition that such an argument may be considered despite R.C. 2953.08(D)(3).

{¶23} In State v. Johnson, 1st Dist. Hamilton No. C-160242, 2017-Ohio-1148, ¶

12, for example, the defendant claimed that the appellate court could review procedural

errors in the sentencing process irrespective of R.C. 2953.08(D)(3). That argument was

rejected. According to Johnson, the underpinnings of challenges to the sentencing

process rest with an argument that R.C. 2953.08 does not provide the exclusive basis for

appealing a sentence and a defendant could appeal a sentence independent of the statutory

review. As generally recognized, however, there is no constitutional right to appellate

review of sentences. Id., citing State v. Smith, 80 Ohio St.3d 89, 97, 1997-Ohio-355, 684

N.E.2d 668, quoting State ex rel. Bryant v. Akron Metro. Park Dist., 281 U.S. 74, 80, 50

S.Ct. 228, 74 L.Ed. 710 (1930). Further, the Ohio Supreme Court rejected the idea that

an appellate sentencing review exists outside the scope of R.C. 2953.08. Id., citing

Marcum at ¶ 21.

{¶24} In the absence of arguments or citations to authority in support of our review

of the sentences, the fifth and sixth assignments of error are overruled.

{¶25} On the basis of the foregoing, the conviction is affirmed. [Cite as State v. Crosby, 2018-Ohio-3793.] 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 execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR