[Cite as State v. Shabazz,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100021

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DERRELL B. SHABAZZ DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-567946-B

BEFORE: Blackmon, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: May 1, 2014 ATTORNEY FOR APPELLANT

Reuben J. Sheperd 11510 Buckeye Road Cleveland, Ohio 44104

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Anna M. Faraglia Kerry A. Sowul Christopher D. Schroeder Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, J.: {¶1} Appellant Derrell B. Shabazz (“Shabazz”) appeals his convictions for

aggravated murder, murder, felonious assault, and having a weapon while under

disability. He assigns six errors for our review.1

{¶2} Having reviewed the record and pertinent law, we vacate Shabazz’s

convictions for aggravated murder, murder, felonious assault with a gun, and having a

weapon while under disability; we affirm his sentence for two counts of felonious assault

with a champagne bottle; we reverse and remand for resentencing. The apposite facts

follow.

Facts

{¶3} The Cuyahoga County Grand Jury jointly indicted Shabazz and his

codefendants, Dajhon Walker (“Walker”) and Otis Johnson (“Johnson”), for aggravated

murder, murder, and three counts of felonious assault against Antwon Shannon.

Shabazz, Walker, and Johnson were also indicted for one count of felonious assault

against Ivor Anderson, and two counts of felonious assault against Eunique Worley.

Shabazz was separately indicted for having a weapon while under disability. Prior to

trial, Johnson entered a plea to one count of felonious assault and was placed on

community control. Shabazz and Walker proceeded to a joint trial where the following

evidence was presented.

{¶4} During the early morning hours of February 19, 2012, Shabazz, Walker, and

Johnson were seen on a security camera entering the Tavo Martini Loft, a downtown

1 Shabazz’s codefendant, Dajhon Walker, also filed an appeal. State v. Cleveland bar and lounge. The bar had security cameras that filmed various areas of the

bar. The surveillance video shows the trio being patted down by security at 1:08 a.m.

when they entered the bar. Once in the bar, the video shows Robert Steele 2 joining

them.

{¶5} At 1:57 a.m., the surveillance video shows Robert Steele dancing and

appearing to spill champagne on or near Ivor Anderson, who was at the bar with his

friend Antwon Shannon, the victim who later died from a gunshot wound. There is no

audio on the video, but it appears Anderson said something to Steele after the spill.

{¶6} Anderson testified at trial that Steele had spilled champagne on him while

dancing. He told Steele, “You are doing too much.” He clarified at trial that he meant

he should not have been dancing with the champagne glass. According to Anderson,

Steele rejoined Shabazz’s group and began whispering to Johnson, Walker, and Shabazz.

He said the men continued to watch him. Anderson testified he told Shannon to watch

out for the group because he felt something was going to happen. Anderson stated that

he did not know any of the men in the group.

{¶7} A review of the video does show the group looking in the direction of

Anderson; however, they are also seen dancing and interacting with others. Also, Steele

is not seen immediately going to the group, but continues to dance. When he eventually

Walker, 8th Dist. Cuyahoga No. 99998 (May 1, 2014).

Steele’s identity was unknown until the eighth day of Shabazz and Walker’s 2

trial. He entered a plea to one count of felonious assault and was sentenced to two years in prison. stops dancing, he speaks to a female and an unknown male wearing a jacket. He then

talks to Shabazz, Johnson, and Walker.

{¶8} Anderson testifies that about 15 minutes after Steele spilled the champagne,

he turned his back to talk to a friend, Eunique Worley, when “Shabazz” hit him in the

head with a champagne bottle. Worley testified that part of the bottle hit her in the head,

but she did not see who hit her.

{¶9} Because the incident was captured by surveillance video, it is clear that

Anderson was mistaken. Shabazz did not hit him with the champagne bottle, it was

Steele. At 2:11 a.m., Steele is shown dancing near Anderson prior to swinging his arm

with a bottle in Anderson’s direction. During this time, Shabazz and Walker were on the

fringe of the group.

{¶10} The surveillance video shows that after Steele swings the bottle, Steele and

Anderson begin to fight and two females, who appeared to be with Johnson, immediately

jumped on Anderson. Johnson is seen pulling Steele out from the fray, and the two

females continue to beat Anderson. Shabazz is seen pacing on the fringe of the fight;

however, when Walker hits Shannon with a bottle, Shabazz runs around the group and

punches Shannon in the face.

{¶11} After Shabazz punches Shannon, Shabazz walks away. Walker is seen

pulling an object from his waistband and running behind a pillar that is right next to the

dance floor. The shot is eventually fired from behind this pillar. Before the shot is fired,

Shabazz is not looking in Walker’s direction and does not join him; instead, he walks across the room towards Johnson and watches the women fighting with Anderson on the

dance floor. This is fully seen on the surveillance video.

{¶12} After being punched by Shabazz, Shannon returns to the dance floor to

again try to pull the women off of Anderson.3 He successfully pulls one of the women

off, and Anderson is then able to stand. Shabazz then runs up to Anderson and punches

him in the face and then walks away from Anderson. One of the females jumps on

Anderson and brings him to the floor by the pillar. The fight then spills over to the area

next to the dance floor and pillar where Walker is standing. Because the fight has now

proceeded to the area by the pillar, Shabazz is seen walking towards the pillar. As he

does so, a shot is fired, as indicated on the video by a flash and dust falling from the

ceiling.

{¶13} Before the shot is fired, the video shows Shannon move towards the pillar in

an attempt to remove the women from on top of Anderson. Shannon bends over with his

back towards the pillar and is shot in the lower back area. Thereafter, the crowd begins to

run. On the video, Walker is seen running from behind the pillar after the shot is fired,

and Shabazz joins him as they run out of the bar. Walker is seen fumbling with his

pants, which the state argued showed him putting his gun in his waistband, although no

weapon is visible.

{¶14} Shannon made his way to the bathroom. A medical student hiding in the

bathroom saw Shannon and asked him if he was okay. Shannon lifted his shirt, and the

In spite of the fact the women on the video were later identified, they were 3

not indicted. medical student saw blood. Shannon dropped to the ground, and the medical student

attempted to help him until the EMS arrived. Shannon died in transit to the hospital.

{¶15} Anderson testified that when he gave his statement to police several days

later, he told them he had “heard” that Shabazz was the one that shot Shannon. He also

told police that he was 100% sure that Shabazz was the one that hit him with the

champagne bottle, which the surveillance video contradicts.

{¶16} Officer Edens was called to the scene. He testified that one .45 shell casing

was found on the dance floor. No weapon was recovered from the scene except for a

gun found in Shannon’s vehicle. Detective Diaz testified that Johnson, Walker, and

Shabazz became persons of interest because their names were mentioned by witnesses.

According to Diaz, Shabazz turned himself in to the police.

{¶17} The jury found Shabazz guilty of the following offenses against Antwon

Shannon: aggravated murder, murder, and three counts of felonious assault. The jury

also found Shabazz guilty of one count of felonious assault against Ivor Anderson. The

jury found Shabazz not guilty of the two counts of felonious assault against Worley. The

trial court separately concluded Shabazz was guilty of having a weapon while under

disability.

{¶18} The trial court sentenced Shabazz to 20 years to life in prison for the

aggravated murder, and merged all the other counts dealing with Shannon into this count.

The court also sentenced Shabazz to two years in prison for the felonious assault against

Anderson and nine months in prison for having a weapon while under disability. These two sentences were to be served consecutive with each other, but concurrent with the

aggravated murder term.4

Insufficient Evidence and Manifest Weight

{¶19} We address Shabazz’s fifth and sixth assigned errors together for ease of

discussion. Shabazz argues that the evidence was insufficient to support his convictions

and that they were also against the manifest weight of the evidence.

{¶20} 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 the offense. Crim.R. 29(A)

and a sufficiency of the evidence review require the same analysis. State v. Tenace,

,

,

.

{¶21} In analyzing whether a conviction is supported by sufficient evidence, the

reviewing court must view the evidence “in the light most favorable to the prosecution”

and ask whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Jackson v. Virginia,

,

,

(1979); State v. Jenks,

,

(1991), paragraph two of the syllabus; State v. Carter,

,

,

.

1. Aggravated Murder

4 We note that the trial court failed to sentence Shabazz for the firearm specifications. However, this does not render the judgment nonfinal. Jones v. Ansted,

,

,

. {¶22} Shabazz argues the evidence was insufficient to support an aggravated

murder conviction because there was no evidence showing that he was part of a plan to

murder Shannon.

{¶23} Aggravated murder pursuant to R.C. 2903.01(A), provides that “[n]o person

shall purposely, and with prior calculation and design, cause the death of another[.]”

Shabazz did not fire the gun; therefore, the state’s case against Shabazz was predicated on

his aiding and abetting Walker.

{¶24} R.C. 2923.03(A)(2) states that no person, “acting with the kind of

culpability required for the commission of an offense” shall “[a]id or abet another in

committing the offense[.]” A person aids or abets in a crime when the evidence shows

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,

,

,

, syllabus. Criminal intent “can be inferred from the presence,

companionship, and conduct of the defendant before and after the offense is

committed.” In re T.K.,

,

,

, citing

Johnson, 93 Ohio St.3d at 245.

{¶25} Thus, the state must prove two criminal intents for the accomplice: first that

the accomplice had the same criminal intent as the principal offender and, second, that the

accomplice also intended to help the principal commit the offense. State v. Mendoza,

,

,

(3d Dist.) citing State v. Lockett,

,

(1976), overruled on other grounds by

Lockett v. Ohio,

,

,

(1978).

{¶26} This court in State v. Walker, 8th Dist. Cuyahoga No. 99998 (May 1, 2014),

held that construing the evidence in the light most favorable to the state, the state failed to

provide evidence that Walker’s murder of Shannon was premeditated. In so holding, we

held that the Ohio Supreme Court has provided the following factors to consider in

determining whether prior calculation and design were proven:

(1) Did the accused and the victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or “an almost spontaneous eruption of events?”

State v. Taylor,

,

,

.

{¶27} We then concluded in Walker:

As to the first factor, there is no evidence in the record that Walker knew Shannon, let alone had a strained relationship. With respect to the second factor, the evidence fails to demonstrate that Walker gave thought in choosing the murder site. The state did not have any eyewitness testimony to the shooting, so it relied on the surveillance video to present its case. The surveillance video shows Anderson and others fighting on the dance floor. Shannon gets caught in the fight while he is trying to break it up. Walker walks behind a pillar, which is next to the dance floor. The video then shows the fight spilling over to the area by the pillar where Walker went behind. The fight could have just as easily spilled over into the other direction. Thus, Walker did not choose the murder site or pursue Shannon. Rather, the video shows that the murder site came to him instead.

With respect to the third factor, we find that Walker’s actions were the result of an almost spontaneous eruption of events. The evidence demonstrates that after the fight erupted, a group of people were tussling on the dance floor. The fight then happens to spill over to the area by the pillar where Walker was observed walking behind. Shannon is seen bent forward and one gunshot is fired at his back. The video fails to demonstrate that “the act was drawn out.” Rather the video shows the entire sequence of events, which happened within minutes, as a chaotic situation that spiraled out of control.

Id. at ¶ 18, 19.

{¶28} We agree with the Walker decision that the state failed to show evidence of

prior calculation and design. This court stressed in Walker that it was not unusual for a

group to stand together and converse while in a nightclub. Id. at ¶ 20. We agree. The

video shows Shabazz, Walker, and Johnson looking at Shannon and Anderson, but they

are also otherwise engaged with other people. They are seen talking to and hugging

others during this supposed planning period. Although Anderson felt uneasy by the men

talking and looking in his direction, more than dirty looks are necessary to prove the men

were devising a plan to commit premeditated murder.

{¶29} We agree with the Walker decision that there was no evidence of prior

calculation and design. Therefore, insufficient evidence was presented to support

Shabazz’s conviction for aggravated murder. The evidence was also insufficient

because, as we will discuss further below, there was no evidence that Shabazz was aware

that Walker had a gun. State v. Scott,

,

(1980),

citing State v. Lockett,

,

(1976) (“a jury can infer an

aider and abettor’s purpose to kill where the facts show that the participants in a felony

entered into a common design and either the aider or abettor knew that an inherently

dangerous instrumentality was to be employed to accomplish the felony or the felony and

the manner of its accomplishment would be reasonably likely to produce death.”)

2. Murder {¶30} We also find no evidence to support the complicity to murder charge against

Shabazz. For this count, Shabazz was indicted pursuant to the felony-murder provision

in R.C. 2903.02(B). R.C. 2903.02(B) states:

No person shall cause the death of another as a proximate result of the

offender’s committing or attempting to commit an offense of violence that

is a felony of the first or second degree and that is not a violation of section

2903.03 or 2903.04 of the Revised Code.

The underlying act was felonious assault with a deadly weapon.

{¶31} Although the court in Walker found sufficient evidence that Walker

murdered Shannon, we find no evidence that Shabazz aided and abetted Walker in the

murder. There was no evidence that Shabazz was aware that Walker had a gun until the

shot was fired. The men are seen on the security video being patted down upon entering

the establishment, and there is no evidence what the men said or did prior to coming to

the club that would indicate Walker had a weapon.

{¶32} The U.S. Supreme Court in Rosemond v. United States,

,

,

(2014), recently addressed the issue of complicity when the

principal offense is committed with a firearm. The facts in Rosemond were that

Rosemond accompanied two codefendants to sell drugs to a designated purchaser. One

of Rosemond’s codefendants drove the car to the exchange. Instead of paying money in

exchange for the drugs, the purchaser punched one of Rosemond’s codefendants in the

face and ran off. Someone in the car began shooting at the fleeing purchaser. {¶33} Rosemond was indicted under the federal statute regarding using a gun

while committing a drug trafficking offense. Because it was undetermined who fired the

gun, the government argued that Rosemond was the principal offender, but in the

alternative argued he at least aided and abetted the crime. The jury convicted Rosemond

without indicating if it was for being the principal offender or for aiding and abetting.

{¶34} Rosemond appealed based on the jury instructions the court gave the jury on

aiding and abetting. The court instructed that the jury could convict Rosemond if “(1)

the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the

defendant knowingly and actively participated in the drug trafficking crime.”

. The Supreme Court found the instruction erroneous because it did not instruct the

jury that it must find that the accomplice had knowledge that his codefendant had a gun in

sufficient time to withdraw from the crime. The Court held as follows:

[D]efendant’s knowledge of a firearm must be advance knowledge — or

otherwise said, knowledge that enables him to make the relevant legal (and

indeed, moral) choice. When an accomplice knows beforehand of a

confederate’s design to carry a gun, he can attempt to alter that plan or, if

unsuccessful, withdraw from the enterprise; it is deciding instead to go

ahead with his role in the venture that shows his intent to aid an armed

offense. But when the accomplice knows nothing of a gun until it appears

at the scene, he may already have completed his acts of assistance; or even

if not, he may at that late point have no realistic opportunity to quit the

crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. * * * For the reasons just given, we

think that means knowledge at a time that the accomplice can do something

with it — most notably, opt to walk away. (Emphasis sic.)

.

{¶35} The dissent distinguishes Rosemond based on the fact the knowledge of the

firearm was a necessary element to the federal drug trafficking offense at issue.

However, Shabazz was indicted for felony-murder with the underlying offense of

shooting Shannon with a firearm. Therefore, his “knowledge” of the firearm was

necessary because “knowingly” is the mens rea for felonious assault. Felonious assault is

defined as knowingly causing, or attempting to cause, physical harm to another by means

of a deadly weapon. R.C. 2903.11(A). A person acts knowingly, regardless of purpose,

when he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist. R.C. 2901.22(B). Here, without knowing that Walker had

a weapon, Shabazz did not know that there was a risk that the death of one of the victims

could result from the altercation.

{¶36} The dissent emphasizes that the use of the bottles by Shabazz’s

co-defendants was sufficient to support the felony-murder charge. However, Shabazz

was expressly indicted for using a firearm in committing the felony-murder. Also, the

bottle throwing was not the proximate cause of Shannon’s death. Shannon continued to

help Anderson after being hit, and security footage of Anderson outside of the club after

the fight shows he is physically ready to continue fighting. {¶37} Morever, the Supreme Court applied common law principles in discussing

the “intent” needed for an accomplice. Additionally, a review of Ohio case law shows

that foreknowledge of the gun has generally been applied in cases in which a defendant is

found to be complicit in felony-murder with a firearm. See also State v. Wynn, 2d Dist.

Montgomery No. 25097,

(evidence purporting to show that accomplice

did not know that shooter had a gun would be relevant to whether he knowingly aided and

abetted the shooter; however, evidence was presented gun was observable); State v.

Ayers, 10th Dist. Franklin No. 13AP-18,

(witness heard the shooter

ask the accomplice for a gun and was observed returning the gun to the accomplice after

the shooting); State v. Chatman, 8th Dist. Cuyahoga No. 99508,

(accomplice and shooter both had guns; shooter told the accomplice that he intended to

shoot the victim); State v. Robinson, 8th Dist. Cuyahoga No. 99290,

(accomplice operated car in manner to allow shooter better angle to shoot; shooter

known to carry gun); State v. Hall, 10th Dist. Franklin Nos. 08AP-939 and 08AP-940,

(accomplice helped plan the robbery and drove the robbers to the scene

of the crime, knowing one was going to use a firearm to rob a man); State v. Hudson, 5th

Dist. Stark No. 2007-CA-00176,

(accomplice supplied shooter with the

gun); State v. Hickman, 5th Dist. Stark No. 2003-CA-00408,

(accomplice present when shooter loaded the rifle).

{¶38} The dissent references the Wynn decision from the second district, cited

above, to support the argument that knowledge of the gun by the accomplice is

unnecessary. Showing that an accomplice “knowingly” engaged in the act with the same intent as the principal is a prerequisite for the conviction of an accomplice to

felony-murder. In Wynn, security footage is shown depicting the principal offender

pointing a gun at the victim who is trying to get the gun away. According to the opinion,

Wynn is seen punching the victim to stop him from getting the gun. In that case, the

video alone was enough to convict Wynn as an accomplice because he obviously saw the

gun and chose to continue to participate. The court held as follows regarding the court’s

failure to allow the defense to call Wynn’s codefendant as a “court’s witness”:

In addition, evidence purporting to show that Wynn did not know that

Turner had a gun could also be relevant to whether Wynn knowingly aided

and abetted Turner. However, our review of the video interview, which was

proffered as Defense Exhibit A, indicates that Turner never told the police

that Wynn was unaware that he (Turner) had a gun. In fact, Turner said

during the video interview that he took his gun out of the car when the two

men pulled up to the store and went inside. Turner also stated that he took

his gun out of the car because he knew that Beans kept a gun. And finally,

Turner indicated that he kept his gun on the side and that it was out

(meaning it would have been visible to others, including Wynn). This

testimony would not have assisted Wynn in proving his lack of knowledge

that Turner had a gun.

Id. at ¶ 69. Thus, Wynn acknowledges the importance of knowledge of the weapon in

order for the defendant to “knowingly” aid and abet in the crime of felony-murder with a

firearm. {¶39} There was absolutely no evidence that Shabazz was aware that Walker had a

gun. The evidence, both direct and circumstantial, indicates that Shabazz would not

have been aware of the gun until the gun was fired. There is absolutely no evidence

upon which the jury could “infer” that he did have this knowledge. Although Walker is

seen quickly pulling something from his waistband prior to going behind the pillar,

Shabazz’s attention is directed to the fight on the floor not Walker. Walker also puts his

hand down by the side of his leg after reaching for the waistband. By the time the gun

was shot, Shabazz had completed his participation in the fight. Moreover, given that the

shot was fired from behind the pillar, it is debatable if Shabazz knew that Walker was the

one that fired the shot. Thus, the evidence was insufficient to convict him as an

accomplice to the murder.

{¶40} Although the dissent references a celebration outside the club, as did the

prosecution in its brief, we found no evidence of this in our review of the surveillance

footage of the outside of the club, and no testimony regarding the celebration was

presented at trial. At oral argument, when the panel inquired where this footage

appeared, the prosecution referred to where to look on the video. We reviewed the

footage referenced by the state; our review showed people in the distance with no way of

knowing who they were or what they were doing.

{¶41} Although the dissent disagrees, the video shows Shabazz participated by

throwing two punches, one for each victim. Shannon resumed helping Anderson after

being punched and Anderson remained standing after being punched until one of the

females jumped on him. After each punch Shabazz retreated. Although we agree with the dissent that Shannon’s murder was tragic and senseless, the state should not be

relieved of its burden because of this tragedy.

3. Felonious Assault

{¶42} Given our above discussion, the felonious assault counts involving Shannon

that have to do with a firearm are also vacated. This leaves two counts of felonious

assault committed with a “champagne bottle.”

{¶43} To convict Shabazz under these two counts, the state had to show that

Shabazz “knowingly cause[d] or attempt[ed] to cause physical harm to” Shannon and

Anderson “by means of a deadly weapon or dangerous ordnance, to wit: champagne

bottle.” The evidence does not show that Shabazz himself committed felonious assault

with a bottle because Shabazz’s actions consist of his punching each man once; therefore,

the state had to present evidence that Shabazz aided and abetted the principal offenders.

{¶44} The video shows that after observing Anderson being hit in the head with a

bottle, Shabazz chose to engage in the fight and, in fact, punched Anderson. Shabazz

also punched Shannon after observing Walker hit him with a bottle. By joining in on the

fight, he showed his encouragement and support of the principal offenders’ actions.

Thus, we cannot say he was not complicit in committing the two counts of felonious

assault with a champagne bottle.

4. Having a Weapon While under Disability

{¶45} Due to our discussion regarding the murder, we also conclude that

Shabazz’s conviction for having a weapon while under disability should be reversed. As we stated, there is no evidence that Shabazz was aware that Walker had brought a gun.

There was also no evidence that Shabazz had a gun.

{¶46} Shabazz also contends his convictions were against the manifest weight of

the evidence because there was no evidence of a conspiracy. In doing so, he simply

reiterates his arguments from his sufficiency of the evidence argument. But, because we

found insufficient evidence to support his conviction, his manifest weight of the

evidence argument is moot. See App.R. 12(A)(1)(c).

{¶47} Accordingly, we conclude that Shabazz’s fifth assigned error has merit in

part and is sustained in part and his sixth assigned error is moot. Shabazz’s convictions

for aggravated murder, murder, three counts of felonious assault with a firearm, and

having a weapon while under disability are vacated. His two convictions for felonious

assault with the champagne bottle are affirmed.

{¶48} The trial court has already sentenced Shabazz to two years in prison for the

felonious assault of Anderson; however, the felonious assault of Shannon was merged

with the aggravated murder count. Therefore, the matter must be remanded for the trial

court to sentence him on the felonious assault of Shannon.

Ineffective Assistance of Counsel

{¶49} In his first assigned error, Shabazz argues that his counsel was ineffective.

To succeed on a claim of ineffective assistance, a defendant must establish that counsel’s

performance was deficient and that the defendant was prejudiced by the deficient

performance. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989). Counsel will only be considered deficient if his or her conduct fell below an objective standard of

reasonableness.

.

{¶50} When reviewing counsel’s performance, this court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.”

. To establish resulting

prejudice, a defendant must show that the outcome of the proceedings would have been

different but for counsel’s deficient performance.

.

{¶51} Shabazz argues that counsel was ineffective for filing a motion to suppress

“any testimony from [the] newly disclosed witness.” The new witness was Robert

Steele, the person seen on the video hitting Anderson on the head with the bottle.

Shabazz argues that in Steele’s statement to police, he stated that he had “acted alone”

and “did not know anyone [at the bar] other than his cousin Otis Johnson.” Shabazz

argues these statements would have assisted him in defeating the state’s theory that the

men planned the assault upon the victims that ultimately led to Shannon’s death.

{¶52} In its motion, counsel acknowledges that Steele told police he acted alone

and only knew Johnson. Thus, in spite of Shabazz’s contention otherwise, counsel did

review the statement. In his motion, counsel’s concern was that the police while

interrogating Steele had made suggestive remarks to Steele about what was depicted on

the video, which unduly influenced Steele to the point any testimony would be unreliable.

Thus, counsel’s refusal to have Steele testify was a tactical move because Steele’s

testimony might differ from his statement after hearing about the video from police. It is

well-established that “counsel’s decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Hanna,

,

,

, ¶ 118.

{¶53} Moreover, we concluded in addressing Shabazz’s fifth assigned error that

the evidence did not support the state’s allegation that the men premeditated the attack;

therefore, Steele’s statement he acted alone in deciding to hit Anderson with the bottle

would not have mattered. We have found Shabazz is guilty of felonious assault not

based on a plan, but based on his decision to participate in the fight each time one of the

victims was hit with a bottle. Accordingly, Shabazz’s first assigned error is overruled.

Prosecutorial Misconduct

{¶54} In his second assigned error, Shabazz argues that the state committed

prosecutorial misconduct by referring to evidence not substantiated by the record.

Specifically, Shabazz argues that the prosecutor stated in closing argument that the video

showed the men discussing and planning the attack and that Shabazz stayed away from

the pillar because he knew that Walker had a gun.

{¶55} We conclude our resolution of Shabazz’s fifth assigned error moots this

assigned error. We have already concluded there was insufficient evidence that the men

planned the crime and that there was no evidence that Shabazz knew that Walker had a

gun. Accordingly, because it is moot, Shabazz’s second assigned error is overruled.

Jury Instructions

{¶56} In his third and fourth assigned errors, Shabazz challenges the trial court’s

instructions on flight, conspiracy, and complicity. {¶57} In reviewing a trial court’s jury instruction, the appellate court must affirm

the trial court’s instruction unless the instruction constituted an abuse of discretion under

the facts and circumstances of the case. State v. Wolons,

,

(1989). Jury instructions are reviewed in their entirety to determine if they contain

prejudicial error. State v. Fields,

,

(8th Dist.

1984).

{¶58} In the instant case, the trial court instructed the jury as follows:

Testimony has been admitted indicating that the defendants fled the scene. You are instructed that the fact that any one or both of the defendants fled the scene does not raise 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 any one or both of the defendants fled the scene, or if you find that some other motive prompted any one or both of the defendant[s’] conduct, or if you are unable to decide what any one or both of the defendant[s’] motivation was, then you should not consider this evidence for any purpose.

However, if you find that the facts support that any one or both of the

defendants engaged in such conduct and if you decide that any one or both

of the defendants was motivated by a consciousness of guilt, you may, but

are not required to consider that evidence in deciding whether any one or

both of the defendants is guilty of the crime charged. You alone will

determine what weight, if any, to give to this evidence.

Tr. 1154-1155.

{¶59} The trial court instructed the jury that fleeing from “the scene does not raise

a presumption of guilt but it may tend to indicate the defendants’ consciousness of guilt.” Shabazz contends that the flight instruction was improper because everyone was running

to get out of the bar once the gun was shot. He also argues that no police were at the

scene when he left so there was no evidence he was avoiding apprehension.

{¶60} The Ohio Supreme Court has held that evidence of flight is admissible to

show consciousness of guilt. State v. Taylor,

,

(1997). We find no abuse of discretion on the part of the trial court. Flight from justice

“means some escape or affirmative attempt to avoid apprehension.” State v. Spraggins,

8th Dist. Cuyahoga No. 99004,

, citing State v. Benjamin, 8th Dist.

Cuyahoga No. 80654,

. It is not error for a trial court to give a flight

instruction when there is such evidence.

{¶61} As Shabazz points out, evidence was given at trial that he, along with

everyone else, fled the scene. But the trial court informed the jury that it could determine

from the evidence whether the defendant fled the scene for some other purpose. Thus,

the jury could have decided whether Shabazz fled because he was trying to avoid the

police or if he fled for safety reasons to avoid being shot. Therefore, we find no error in

the flight instruction.

{¶62} Shabazz also contends the trial court should not have instructed the jury on

complicity. However, as we discussed in Shabazz’s fifth assigned error, there was

sufficient evidence that Shabazz participated in the fight. Therefore, an instruction on

complicity was proper. {¶63} Shabazz also argues the trial court erred in instructing the jury on

conspiracy. However, given our disposition of Shabazz’s fifth assigned error, this error

is moot. Accordingly, Shabazz’s third and fourth assigned errors are overruled.

{¶64} Accordingly, we vacate Shabazz’s aggravated murder, murder, felonious

assault convictions related to a firearm, and weapons while under disability convictions.

Shabazz’s remaining convictions are affirmed and the matter remanded for resentencing

on his conviction for felonious assault against Shannon.

It is ordered that appellant and the appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

LARRY A. JONES, SR., P.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (WITH ATTACHED DISSENTING OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

{¶65} I respectfully dissent from the holding and analysis of the majority opinion.

{¶66} This case is about a 27-year-old father of two who joined a friend at a club

for a night out only to meet his untimely death. Although not directly relevant to our analysis, Antwon Shannon, by all accounts, was completely innocent and did nothing to

justify or bring about his own demise.

{¶67} There is no easy way to disagree with my respected colleagues, but disagree

I must.

{¶68} I do not share the view that the evidence was insufficient to support

Shabazz’s convictions for aggravated murder under R.C. 2903.01(A) with attendant gun

specifications and murder under R.C. 2903.02(B) also with attendant gun specifications.

Likewise, I disagree with the majority view that the gun-related specifications involving

Shabazz on his felonious assault convictions in Counts 3 and 5 are not supported by the

evidence. I also disagree with the majority’s reliance on the analysis in State v. Walker,

8th Dist. Cuyahoga No. 99998 (May 1, 2014), where that panel finds insufficient

evidence to support the aggravated murder conviction under R.C. 2903.01(A) of the

codefendant Walker. Lastly, I disagree with the majority’s analysis of Rosemond v.

United States, 572 U.S.____,

,

(2014), and its impact on

this case. I would affirm in total the jury verdict and reject all of Shabazz’s errors on

appeal.

{¶69} The majority embraces the Walker panel’s view that there is no evidence of

prior calculation and design by Walker, and thus there is no evidence Shabazz had

committed to a plan to kill Shannon. The majority bases much of its analysis on its

judgment that Shabazz was unaware that Walker had a gun. I respectfully disagree with

these conclusions. {¶70} My disagreement with the majority opinion, and by implication the panel

opinion in Walker, is the majority’s focus on the direct evidence without giving what I

consider proper consideration to the circumstantial evidence at play and the reasonable

inferences that can be drawn from that evidence.

{¶71} In viewing a sufficiency of the evidence argument, a conviction will not be

reversed unless the reviewing court holds that no rational trier of fact could have found

that the elements of the offense were proven beyond a reasonable doubt. See State v.

Jenks,

,

(1991), paragraph two of the syllabus. The

court must view the evidence in the light most favorable to the prosecution.

Whether the state presented sufficient evidence is a question of law dealing with

adequacy. State v. Thompkins,

,

,

.

I do not believe the majority view adheres to this requirement. The majority substitutes

its interpretation of the inferences drawn from the circumstantial evidence, rather than

accepting the inferences found by the trier of fact.

{¶72} The majority opinion accurately outlines the conduct of the respective

participants. Nevertheless, the majority emphasizes what the majority’s view of the

evidence is (and primarily direct evidence at that) and not the reasonable inferences that

were drawn from the circumstantial evidence by the jury. This is the essential difference

between my view and the view of the majority.

1. Felony Murder

{¶73} The majority vacates Shabazz’s conviction on the basis that the felony

murder count was predicated on Shabazz’s knowledge of the firearm Walker used to shoot Shannon. Shabazz’s knowledge of the firearm is irrelevant to the felony murder

charge, predicated on the felonious assault committed with the champagne bottles used as

a deadly weapon as charged in the indictment. 5 “‘Felony murder’ under R.C.

2903.02(B) provides that ‘[n]o person shall cause the death of another as a proximate

result of the offender’s committing or attempting to commit an offense of violence that is

a felony of the first or second degree * * *.’” State v. Gibson, 8th Dist. Cuyahoga No.

98725,

.

Under the “proximate cause theory,” it is irrelevant whether the killer was the defendant, an accomplice, or some third party such as the victim of the underlying felony or a police officer. Neither does the guilt or innocence of the person killed matter. [A] defendant can be held criminally responsible for the killing regardless of the identity of the person killed or the identity of the person whose act directly caused the death, so long as the death is the “proximate result” of defendant’s conduct in committing the underlying felony offense; that is, a direct, natural, reasonably foreseeable consequence, as opposed to an extraordinary or surprising consequence, when viewed in the light of ordinary experience.

Id. at ¶ 35, quoting State v. Ervin, 8th Dist. Cuyahoga No. 87333,

.

{¶74} As this court further recognized, “for criminal conduct to constitute the

‘proximate cause’ of a result, the conduct must have (1) caused the result, in that but for

the conduct the result would not have occurred, and (2) the result must have been

foreseeable.” Id. at ¶ 36, citing State v. Muntaser, 8th Dist. Cuyahoga No. 81915,

. Foreseeability, in turn,

5 It appears the majority considers the firearm specifications as controlling which count of felonious assault is the predicate felony offense underlying the felony-murder count, the felonious assault with the firearm or the felonious assault with the bottle. The specifications, however, serve to enhance the penalty, and the felony-murder count can be proven independent of the firearm specifications. is determined from the perspective of what the defendant knew or should have known, when viewed in light of ordinary experience. It is not necessary that the defendant be able to foresee the precise consequences of his conduct; only that the consequences be foreseeable in the sense that what actually transpired was natural and logical in that it was within the scope of the risk created by the defendant.

In this case, Shabazz knowingly participated in the felonious assault of Anderson and

Shannon with bottles used as deadly weapons. Death was a foreseeable consequence of

either of those felonious assault charges, and the attacks on both victims culminated in the

murder of Shannon. It is undisputed that Shabazz participated in the orchestrated attacks

on the victims, knowing that bottles were used as weapons and the attacks resulted in

Shannon’s death. The death of Shannon was within the scope of the risk created by

Shabazz through the felonious assault, and therefore, the fact that the death in this case

was actually caused by Walker is irrelevant to the felony murder analysis. Shabazz’s

conviction for felony murder is not against the sufficiency of the evidence.

2. Complicity to Commit Murder

{¶75} In regard to the murder charges, as noted in State v. Moore, 7th Dist.

Mahoning No. O2 CA 152,

,

“the state does not need to prove that the accomplice and principal had a

specific plan to commit a crime.” [State v. Johnson,

,

,

.] The fact that the defendant shares the

criminal intent of the principal may be inferred from the circumstances

surrounding the crime, which may include the defendant’s presence,

companionship, and conduct before and after the offense is committed.

. This is a situation where “circumstantial evidence and direct

evidence inherently possess the same probative value,” State v. Jenks

(1991),

,

, paragraph one of the syllabus,

because “the intent of an accused person dwells in his mind. Not being

ascertainable by the exercise of any or all of the senses, it can never be

proved by the direct testimony of a third person, and it need not be.” In re

Washington,

, 340,

,

,

quoting State v. Huffman (1936),

,

, paragraph

four of the syllabus.

{¶76} “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,

,

,

(3d

Dist.), quoting State v. Stepp,

,

(4th

Dist. 1997).

{¶77} Although the majority asserts that it is not unusual for a group to stand

together and converse while in a nightclub, that supposed innocent gathering takes a

different tone, as here, when the conversation occurs immediately after an incident

involving a spilled drink and the party who had that drink spilled on him warns his friend

that the rival group is watching him and he senses something is going to happen. As

evident through the video evidence, while the party was “innocently” conversing, they

repeatedly focused their attention in the direction of Anderson and Shannon. The video

makes clear that Shabazz and his compatriots are gazing in the direction of the impending

attack over a period of several minutes. Anderson’s fear of reprisal became a reality.

When Anderson is struck with a champagne bottle, what followed was an orchestrated

attack on Anderson and Shannon by members of this conversing group, culminating with

Shabazz, not only participating in the brutal attack that involved bottles being wielded as

deadly weapons, but walking over to Walker as Walker drew a gun and fired the death

shot. That Shannon’s death came about through the firearm, rather than a blow to the

head by one of the bottle-wielding perpetrators of this senseless crime, should not alter

the legal analysis. The jury is entitled to disregard any inference that these

conversations were innocent, to conclude that the attack was orchestrated to severely hurt

Anderson and Shannon, if not kill either of them, and to determine that Shabazz demonstrated complicity by running out with Walker as he placed the gun back into his

waistband. The facts, and reasonable inferences therein, support the jury’s conclusion.

{¶78} The majority also notes that there was no audio recording on the video,

suggesting the purposeful intent and prior calculation and design had to be recorded to be

proven. Few crimes are recorded by audio or video. The absence of one or both does not

mean the conduct of the parties cannot be examined to establish the intent or culpability

of the respective participants. That is the role of the trier of fact. Significantly, idle

conversation and innocuous dancing between the initial confrontation and the assault as

described by the majority does not diminish the actual conduct that plays out with the

concerted attack on Anderson and Shannon. The jury was well within its province to

infer a plan of attack was in play, including one involving not only serious physical harm,

but a purposeful intent to kill, given the subsequent conduct of those involved and their

collective decision to use bottles as weapons to attack the defenseless.

{¶79} A person is guilty of complicity when he acts with the kind of culpability

required for the commission of an offense and aids and abets or conspires to commit the

offense. R.C. 2923.03(A)(2) and (3). As the Ohio Supreme Court explained in State v.

Johnson,

,

,

, syllabus, this means that

the aider and abettor must share the criminal intent of the principal. The circumstances

of Shabazz and Walker arriving together, plotting with Steele and Johnson after the drink

spill, remaining together in relative proximity during events, participating in the attack,

leaving together after the shooting with Walker placing what appears to be an object into

his front waistband, and the celebratory act in the parking lot could all be considered by the jury in examining Shabazz’s knowledge of the intent to kill Shannon. The majority

may see this as “inference stacking,” but it is actually a series of independent facts that

can be taken together by the jury to reach an acceptable inference and the conclusion that

Shabazz knew Walker was armed.

{¶80} In short, Shabazz’s culpability is not defined as an aider and abettor solely

from events leading up to the shooting, but also by his conduct during and immediately

after the act. Aiding and abetting encompasses conduct before, during, and after the

crime. Certainly the jury could establish that this was an orchestrated attack and that

Shabazz had the same criminal intent and culpability for the crimes as Walker.

3. Prior Calculation and Design

{¶81} While the majority adopts the finding of the Walker panel that there was no

prior calculation and design by Walker, and by implication Shabazz, the facts in the case

can be interpreted differently. Simply put, the jury in this case saw it differently than the

majority sees it here.

{¶82} Under R.C. 2903.01(A), aggravated murder, no person shall purposely, and

with prior calculation and design, cause the death of another. Accordingly, to find a

defendant guilty of murder under this provision, the trier of fact would have to conclude

that the defendant purposely, and with prior calculation and design, caused the death of

the victim. A person acts “purposely” when it is his specific intention to cause a certain

result. R.C. 2901.22(A). “Prior calculation and design” is “indicated [by] studied care in planning or

analyzing the means of the crime as well as a scheme encompassing the

death of the victim.” While “neither the degree of care nor the length of

time * * * are critical factors in themselves, * * * they must amount to more

than momentary deliberation.” * * * “If the victim is killed in a

cold-blooded, execution-style manner, the killing bespeaks aforethought,

and a jury may infer prior calculation and design.” (Citations omitted.)

State v. Williams, 8th Dist. Cuyahoga No. 98528,

, quoting State v.

Taylor,

,

,

, and State v. Hough, 8th

Dist. Cuyahoga No. 91691,

, ¶ 19.

{¶83} The jury was free to infer from the conversations involving Shabazz and the

others that the group was going to exact retribution for Anderson making a comment after

the drink was spilled on him. This reasonably included causing not only serious physical

harm, but also the purposeful intent to kill. This fact is inferred by the subsequent

conduct of Steele, Johnson, Shabazz, and Walker. This was no bar fight. This was a

vicious, premeditated attack. The planning, followed by the orchestrated use of a

multitude of deadly weapons in the form of champagne bottles by multiple participants,

coupled with others like Shabazz offering direct physical support in the attack, was

sufficient to establish not only the required purposeful intent for murder, but also the prior

calculation and design for aggravated murder. The fact that the murder actually

involved a handgun, rather than a champagne bottle, does not diminish the criminal intent

established by the conduct prior to the shooting. {¶84} I recognize the majority does not share this view of Shabazz’s intent, but

that is the majority’s perspective, not the perspective of the jury. Steele initially acts

with a level of culpability embracing both serious physical harm and purposeful murder in

violently swinging a bottle at the back of the head of a defenseless man. The conspirators

meeting and conversing immediately preceding this event and then joining in the attack

immediately after Steele initiates the assault are sufficient grounds to establish prior

calculation and design. The culpability and level of criminal intent is ultimately shared

by those who subsequently join in the attack as aider and abettors.

{¶85} There is little doubt that Walker specifically intended to kill Shannon. He

shot him in the back. He was not responding to an immediate threat against his person

or instinctively reacting to an event. The Walker panel found, and the majority here

embraced, the view that because Walker did not previously know Shannon, one of the

factors of prior calculation and design was not met. I disagree. Simply because

someone does not know another individual in advance does not mean he cannot plan to

kill them. Walker was certainly aware that he had a loaded weapon on his person when

these events unfolded. Between the time that Steele initially conversed with Walker,

Johnson, and Shabazz, more than 12 minutes elapsed for all parties involved to gain a

sense of what was evolving. Once Anderson was struck with the champagne bottle,

events rapidly spiraled out of control, but Walker was well aware of his armed status and

clearly made a conscious decision to fire his weapon and shoot Shannon. I disagree with

the view expressed in Walker and adopted by this majority that in doing so Walker did not

“choose the murder site.” That view ignores the reality that Steele, Johnson, Shabazz, and Walker initiated this orchestrated attack. Likewise, the majority’s adopting the

Walker panel’s description of events as happening in a spontaneous manner ignores the

interlude between Anderson and Steele’s initial encounter and the subsequent turmoil and

Walker’s shooting of Shannon.

{¶86} Lastly, the majority incorrectly relies on the Supreme Court’s decision in

Rosemond, 572 U.S.___,

,

. The majority interprets

Rosemond as requiring advanced knowledge of the firearm from evidence limited to

events prior to the crime in order to convict Shabazz as an aider and abettor to the murder.

In Rosemond, however, the drug trafficking with a firearm crime included an element of

having or using a firearm, and the erroneous jury instruction stated that the defendant

knew his cohort “used” a firearm in the commission of the drug trafficking offense. The

Supreme Court reversed because the instruction incorrectly had the jury consider the

defendant’s contemporaneous knowledge of the use of a firearm rather than whether the

defendant knew in advance that his cohort would be armed while committing the drug

trafficking offense. Knowledge of the use or carrying of a firearm was an element of the

offense in Rosemond, and that case is simply inapplicable. Knowledge of a firearm is

not an element of the felony-murder charge, predicated on the felonious assault with the

bottle.

{¶87} In fact, in State v. Wynn, 2d Dist. Montgomery No. 25097,

,

¶ 69 cited by the majority, the court noted that the lack of knowledge of a gun was merely

evidence purporting to demonstrate whether the defendant knowingly aided and abetted

the principal actor. Even that court recognized that the lack of knowledge is evidence disproving complicity, but it is not in and of itself dispositive of the issue. In this case,

while the majority concludes that Shabazz was unaware of the weapon, there is ample

evidence supporting the fact that Shabazz was complicit in the murder through his actions

in participating in the orchestrated attack on Anderson and Shannon with the bottles used

as deadly weapons. Knowledge of the firearm would be icing on the state’s case.

{¶88} For the foregoing reasons, I respectfully dissent.

APPENDIX

Assignments of Error

I. Appellant was denied effective assistance of counsel in violation of the sixth amendment to the constitution of the United States and Article I, Section 10 of the Constitution of the State of Ohio.

II. The state’s closing arguments contained statements that went beyond the record and were not substantiated by the evidence and therefore constituted prejudicial misconduct that violated appellant’s right to due process.

III. The trial court erred in instructing the jury on defendant’s flight.

IV. The trial court erred in instructing the jury on conspiracy and complicity.

V. The trial court erred in failing to grant the appellant’s motion for acquittal pursuant to Criminal Rule 29 as the evidence presented by the state at trial was insufficient to prove the elements of the offense.

VI. The verdict was against the manifest weight of the evidence.