State v. Washington

2024 Ohio 2277

Opinion

[Cite as State v. Washington, 2024-Ohio-2277.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : JULIANA WASHINGTON, : Case No. CT2023-0061 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022-0220

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: June 12, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD L. WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road Muskingum County, Ohio Thornville, Ohio 43076

By: JOHN CONNOR DEVER Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702 Muskingum County, Case No. CT2023-0061 2

Baldwin, J.

{¶1} The appellant, Juliana Washington, appeals her conviction and sentence by

the Muskingum County Court of Common Pleas. Appellee is the State of Ohio. The

relevant facts leading to this appeal are as follows.

STATEMENT OF FACTS AND THE CASE

{¶2} On April 6, 2023 the Muskingum County Grand Jury indicted the appellant

with one count of Engaging in a Pattern of Corrupt Activity with a firearm specification in

violation of R.C. §2923.32(A)(1), R.C. §2923.32(B)(1), and R.C. §2941.145, fourteen

counts of Theft in violation of R.C. §2913.02(A)(1), R.C. §2913.02(A)(3) and R.C.

§2913.02(B)(2), six counts of Petty Theft in violation of R.C. §2913.02(A)(1) and R.C.

§2913.02(B)(2), five counts of Possessing Criminal Tools in violation of R.C. §2923.24(A)

and R.C. §2923.24(C), four counts of Receiving Stolen Property in violation of R.C.

§2913.51(A) and R.C. §2913.51(C), five counts of Identity Fraud in violation of R.C.

§2913.49(B)(1) and R.C. §2913.49(I)(2), four counts of Tampering with Evidence in

violation of R.C. §2921.12(A)(1) and R.C. §2921.12(B), one count of Felonious Assault

with Firearm and Violent Offender specifications in violation of R.C. §2903.11, R.C.

§2903.11(D)(1)(a), R.C. §2941.145(A), and R.C. §2941.149(A), two counts of Attempted

Theft in violation of R.C. §2923.02, R.C. §2913.02(A)(3), and R.C. §2913.02(B)(2), one

count of Forgery in violation of R.C. §2913.31(A)(1), and R.C. §2913.31(C)(1)(b), and one

count of Failure to Comply in violation of R.C. §2921.331(B) and R.C. §2921.331(C)(4).

The appellant only assigns error regarding her conviction for Felonious Assault (Count

Twenty-Eight). Muskingum County, Case No. CT2023-0061 3

{¶3} On June 27, 2023, the matter proceeded to a jury trial. At trial, the appellant

and her boyfriend, Turk, enlisted several other people, including the victim, to assist them

in going to banks and cashing fraudulent checks. The appellant and Turk would fill out

checks and have the others cash the fraudulent checks.

{¶4} The victim testified that on the second day of their scheme, she became

scared and told Turk she no longer wanted to help. Turk forced the victim into his car by

threat of violence. The appellant was seated in the front passenger seat of the vehicle.

The driver of the vehicle drove to a secluded area and told the victim to be quiet so Turk

would not hurt her.

{¶5} She testified that Turk grabbed her by the hair and pulled her out of the

vehicle. He started hitting her in the face, then kicking her in the face; her head hit the

vehicle and the asphalt. The victim yelled at the appellant and the other woman in the

vehicle, asking them to make Turk stop, but they just faced away from her. The victim

entered a nearby business and had them call law enforcement. Law enforcement pulled

the vehicle over traveling back to Columbus. During the stop, both Turk and the appellant

yelled for the driver to flee. The driver flees, but eventually crashes the vehicle.

{¶6} The jury found the appellant was guilty of one count of Engaging in a Pattern

of Corrupt Activity, thirteen counts of Theft, six counts of Petty, five counts of Possessing

Criminal, four counts of Receiving Stolen, three counts of Identity Fraud, four counts of

Tampering with, one count of Felonious Assault, two counts of Attempted Theft, one count

of Forgery, and one count of Failure to Comply. She was not convicted of the

specifications that were attached to the Felonious Assault charge.

{¶7} On August 7, 2023, the trial court held a sentencing hearing. Muskingum County, Case No. CT2023-0061 4

{¶8} The appellant timely filed a notice of appeal and raised the following three

Assignments of Error:

{¶9} “I. INSUFFICENT (sic) EVIDENCE AS IT RELATES TO COUNT 29

FELONIOUS ASSAULT IN VIOLATION OF O.R.C. 2903.11(A)(1), 2903.11(D)(1)(A).”

{¶10} “II. AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶11} “III. INEFFECTIVE ASSISTANCE AS IT RELATES TO THE FAILURE TO

FILE A MOTION FOR AQUITTALE RELATED TO COUNT 28 WITHIN 14 DAYS OF THE

FINAL VERDICT.”

I.

{¶12} In the appellant’s first assignment of error, the appellant argues that her

conviction for Felonious Assault was not based on sufficient evidence. We agree.

STANDARD OF REVIEW

{¶13} The appellant challenges his convictions on both manifest weight and

sufficiency of the evidence grounds. Sufficiency of the evidence was addressed by the

Ohio Supreme Court in State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d

754:

The test for sufficiency of the evidence 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, superseded by constitutional

amendment on grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,

684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S. Muskingum County, Case No. CT2023-0061 5

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a reasonable

doubt’ is proof of such character that an ordinary person would be willing to

rely and act upon it in the most important of the person’s own affairs” R.C.

2901.05(E). A sufficiency-of-the-evidence challenge asks whether the

evidence adduced at trial “is legally sufficient to support the jury verdict as

a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954

N.E.2d 596, ¶219.

{¶14} Thus, a review of the constitutional sufficiency of the evidence to support a

criminal conviction requires a court of appeals to determine whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

ANALYSIS

{¶15} R.C. §2925.03, in pertinent part, states:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or another’s unborn;

{¶16} R.C. §2923.03, in pertinent part, states:

(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

…

(2) Aid or abet another in committing the offense

(F) Whoever violates this section is guilty of complicity in the

commission of an offense, and shall be prosecuted and punished as if he Muskingum County, Case No. CT2023-0061 6

were the principal offender. A charge of complicity may be stated in terms

of this section, or in terms of the principal offense.

{¶17} This Court has held, “[m]ere presence of an accused where the crime is

committed is not sufficient to establish aiding and abetting, even if the accused knows a

crime is being committed or acquiesces in the criminal conduct of others.” State v. Cook,

5th Dist. Stark No. 98-CA-00133, 1999 WL 4162 (Dec. 21, 1998) citing State v. Coleman,

37 Ohio St.3d 286, 525 N.E.2d 792 (1988). The State must show “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”

to support a conviction for complicity by aiding or abetting. State v. Shrider, 5th Dist.

Licking No. 07 CA 111, 2008-Ohio-3648. “Mere approval or acquiescence, without

expressed concurrence or the doing of something to contribute to an unlawful act, is not

aiding or abetting.” Id at ¶41.

{¶18} In State v. Lee, law enforcement, found a car identified in connection with

the robbery of an electronics store. They then discovered the defendant running in the

vicinity of the abandoned car. State v. Lee, 5th Dist. Richland No. 2021 CA 0076, 2022-

Ohio-2656, ¶35. The evidence also showed that the defendant was riding in the vehicle

with a man named “Quan”, the name of the man who committed the robbery. Id. The

State did not show any action on the defendant’s part that he supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of the

robbery and found no stolen items on his person. Id. Accordingly, this Court found the

mere presence of the defendant was not enough to support a conviction for complicity for

aiding and abetting. Muskingum County, Case No. CT2023-0061 7

{¶19} Preliminarily, the appellant’s brief states that the appellant “warned” the

victim to be quiet or Turk would hurt her. However, a review of the record establishes that

it was not the appellant, to whom the victim referred to as “Juju” throughout her testimony,

who said this, but rather, another female participant to whom the victim referred to as

“that girl” or “the other girl.” The case sub judice is similar to Lee as she was merely

present during the felonious assault. Even though the appellant was an active participant

in the bank fraud scheme, the State did not allege, nor does the evidence show, any

actions the appellant undertook in supporting, assisting, encouraging, cooperating with,

advising, or inciting Turk in the commission of the felonious assault. The appellant did not

drive the victim to the scene of the assault; she did not threaten the victim; and she did

not encourage, advise, or incite Turk into committing the assault. Taken in the light most

favorable to the State, the evidence merely shows the appellant was present in the car

and turned her head away from victim during the assault.

{¶20} Accordingly, the appellant’s first Assignment of Error is sustained.

II., III.

{¶21} Due to our disposition in the appellant’s first Assignment of Error,

Assignments of Error Two and Three are rendered moot. Muskingum County, Case No. CT2023-0061 8

CONCLUSION

{¶22} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is reversed and remanded to the trial court for further

proceedings consistent with this opinion.

By: Baldwin, J.

Delaney, P.J. and

King, J. concur.