[Cite as State v. Cobb,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2014 CA 00218 MARCUS RAYMOND COBB

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 00104

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 8, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO JONATHAN MORRIS PROSECUTING ATTORNEY REDINGER & MORRIS RONALD MARK CALDWELL 116 Cleveland Avenue, NW ASSISTANT PROSECUTOR Suite 418 110 Central Plaza South, Suite 510 Canton, Ohio 44702 Canton, Ohio 44702-1413 [Cite as State v. Cobb,

.]

Wise, J.

{¶1} Appellant Marcus Raymond Cobb appeals his conviction and sentence

entered in the Stark County Court of Common Pleas on one count of complicity to

murder, one count of complicity to aggravated burglary and one count of aggravated

robbery, each with connected firearm specifications.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On December 13, 2013, four Cleveland juveniles David Sharp, Keontye

Sharp, Amir Eppinger, and Maurice Fountain, decided to come to Canton to commit

some robberies. Two members of the group, David Sharp and Amir Eppinger, cut off

their ankle bracelets which had been placed on them for probation monitoring purposes

in order to come to Canton. The reason the group decided to come to Canton was

twofold: they were too well known in the Cleveland area for their robbery activities, and

David Sharp and Amir Eppinger had previously been to Canton. As a result, the four

showed up at the Canton residence of Pearl West.

{¶4} Appellant Marcus Raymond Cobb was present at the West residence

when the four were there. A so-called tattoo party ensued, and Cobb, who was a tattoo

artist, gave Keontye Sharp a tattoo. For payment, Sharp gave Cobb a .9 mm Taurus

semiautomatic handgun. During this party, the talk turned to the group making some

money and the possibility of robbing someone, especially an easy or "soft" target. Cobb

told the group about Michael Sibert, a drug dealer he knew and whom he considered to

be a soft, easy target. Cobb knew Sibert because he had smoked marijuana with him Stark County, Case No. 2014 CA 00218 3

and used to live next door to him. The five then decided to steal a car and go rob Sibert,

armed with the .9 mm Taurus handgun.

{¶5} The five proceeded to Sibert’s apartment at Skyline Terrace in a stolen

purple Dodge Intrepid. Cory Hall, a residence of this apartment complex, saw the

vehicle pull into the parking lot. Hall particularly noticed the appearance of the driver,

Marcus Cobb, who had long hair like a female. Once the vehicle stopped, Hall saw the

three men sitting in the back seat of the vehicle leave and go into the apartment building

where Sibert lived. Shortly afterwards, Hall heard gunshots from this building, and then

saw two of the men run back to the vehicle which then drove away.

{¶6} According to David Sharp and Eppinger, the three of them, including

Maurice Fountain, knocked on Sibert's door. Cobb had told them which apartment

Sibert lived in. While they were talking with Sibert about buying drugs, Fountain saw a

gun lying on a table. Fountain grabbed the gun, and Sibert charged at him. A struggle

and shots ensued.

{¶7} Stanley Pearson, who was also inside the residence, joined in the fray

once the struggle began. He fought with David Sharp and Eppinger, who were

eventually able to flee the residence after the shots were fired. Eppinger had been shot

during the struggle between Fountain and Sibert. As Fountain lay dying, having been

shot twice in the face, he grabbed the .9 mm Taurus that he had brought with him and

shot Sibert once in the chest, immediately killing Sibert with a shot to the heart.

{¶8} Fountain died two days later after being taken to a hospital.

{¶9} The remaining four robbers decided to split up. Keontye Sharp stole

another vehicle and went back to Cleveland. The other three spent the night in a stolen Stark County, Case No. 2014 CA 00218 4

van, and then drove back to Cleveland after switching license plates. Once in

Cleveland, the three decided to drive to Florida. The three were arrested in a hotel in

Winston-Salem, North Carolina by local authorities, and were eventually returned to

Ohio.

{¶10} While in custody, David Sharp gave a statement to the police. Eppinger,

however, asked for a lawyer and was not questioned.

{¶11} Cobb also gave a statement to police. Cobb admitted to being at the

"tattoo party" with the four Cleveland youths, and to giving one of them a tattoo. He

denied, however, any knowledge about an armed robbery attempt. Instead, he

maintained that the four drove with him to the Skyline Terrace area in order to buy some

marijuana. Shots were soon fired, and two of the three who had gone inside to buy the

weed came running out and into the waiting vehicle. The group then drove off, and the

two who returned talked about what had happened inside the apartment. Upon hearing

about the shootings, Cobb told the police he got out of the vehicle and took a bus back

to West's residence. Cobb denied any knowledge that the group was planning an armed

robbery. He asserted that he believed that the Cleveland guys were merely going to

Sibert's residence to buy marijuana. (T.(I) 209, 211-215); (Transcript of Cobb's

statement to police).

{¶12} David Sharp and Eppinger reached a deal with the prosecution, which

resulted in them pleading guilty to three charges: complicity to involuntary

manslaughter, aggravated burglary, and aggravated robbery, with firearm specifications

and receiving prison terms of 14 years, in exchange for cooperating with the State of

Ohio. As a result, Eppinger gave a statement to the police, which led to the location of Stark County, Case No. 2014 CA 00218 5

Keontye Sharp, who was then arrested. Keontye Sharp also gave a statement to the

police and agreed to cooperate with the State of Ohio. As a result, all three testified

against Cobb at his trial.

{¶13} On March 25, 2014, as a result of the above events, Appellant Marcus

Raymond Cobb was indicted on one count of Complicity to Murder, in violation of R.C.

§2923.03, one count of Complicity to Aggravated Robbery, in violation of R.C.

§2911.01, a felony of the first degree, and one count of Complicity to Aggravated

Burglary, in violation of R.C. §2911.11, a felony of the first degree. Each of these

charges had an attendant Firearm Specification attached to it, in violation of R.C.

§2941.145

{¶14} Appellant pled not guilty to the charges and the matter proceeded to jury

trial.

{¶15} At trial, the jury heard testimony from Keontye Sharp, David Sharp and

Amir Eppinger. Their testimony was as follows:

{¶16} Keontye Sharp, who was 16 at the time of the robbery-homicide, testified

that he came to Canton that day with his brother David, Amir Eppinger, and Maurice

Fountain in order to commit a robbery. They met Cobb at Pearl West's residence, where

Cobb gave Sharp a tattoo. For payment, Sharp gave him a gun that he had stolen from

a car in Cleveland. While at the party, they discussed robbing Sibert. Cobb told them

that Sibert’s drugs and stuff would be on a table. Sharp then drove another stolen

vehicle to the Sibert residence. Because he did not know where he was going, having

never been to Canton before, Sharp followed Cobb's directions to get there. Once there,

the three in the back seat: David Sharp, Eppinger, and Fountain, got out of the car and Stark County, Case No. 2014 CA 00218 6

proceeded to the apartment building pointed out by Cobb. Shortly afterwards, shots

were heard from this building, and David Sharp and Eppinger came running out and

jumped back into the vehicle. David ran so hard that he lost his shoes. The four then

drove back to the West residence, where they split up. Sharp admitted that he stole a

vehicle and returned to Cleveland on his own. (T.(I) at 162-174,179-181, 184-185).

Sharp saw his brother, Eppinger, and Cobb in Cleveland a day or so later. Those three

talked about the need to leave the area, and discussed going to North Carolina. Sharp

gave them his iPod for them to sell and raise some money for the trip. Sharp remained

in contact with them until their arrest. Sharp himself was later arrested at his stepfather's

residence. (T.(I) at 175-177).

{¶17} David Sharp’s testimony corroborated the trial testimony of his brother

about coming to Canton for the purposes of committing a robbery. He testified that he

and Eppinger had been to Canton before, so they ended up at Pearl West's residence.

While there, Cobb gave his brother a tattoo, for which Keontye gave Cobb a stolen

handgun, the same handgun which would be used by Fountain to kill Sibert. After telling

Cobb about the purpose of their trip to Canton, Cobb suggested that they rob a store.

Cobb assured them that there was only one clerk there, and it would be easy to rob.

The group drove to the store, with Cobb directing them to the location. The group

noticed too many people there, however, so they opted not to go through with that

robbery.

{¶18} Subsequently, Cobb told the group about a drug dealer he knew who

would be an easy target. That drug dealer was Michael Sibert, known by his street

name as "Munch." Cobb then directed the group to the apartment building where Sibert Stark County, Case No. 2014 CA 00218 7

lived. Once there, Sharp, Eppinger and Fountain went into the apartment building, while

Cobb and Sharp's brother remained in the vehicle. They followed Cobb’s directions to

Sibert's apartment, knocked, and responded that they were "Otis." Sibert told them to

come inside, and after talking about drugs, Sibert left the living room to get the drugs.

Fountain then grabbed a revolver, which was on the table, and then shot at Sibert when

he came charging at him. While these two fought, Sharp and Eppinger struggled with

the other man in the apartment, Stanley Pearson, and managed to flee as more shots

were fired. Sharp ran so hard that he lost his shoes. He and Eppinger returned to the

vehicle and drove off with Cobb and Sharp's brother. (T. (II) at 30-44). Sharp, Eppinger,

and Cobb stayed together that night and later went to Cleveland. From there, the three

opted to go to Florida and were eventually arrested in North Carolina. (T. (II) at 44-49).

{¶19} Amir Eppinger testified about the four getting together in Cleveland in

order to come to Canton in order to rob someone. Eppinger had been to Canton before,

and thus the group headed to Pearl West's residence. Once there, Cobb showed up

and gave Keontye Sharp a tattoo. As payment, Sharp gave Cobb a stolen loaded .9 mm

semiautomatic handgun. This gun eventually ended up in Maurice Fountain's

possession and was used by Fountain during the robbery to kill Sibert.

{¶20} Before then, however, Cobb suggested Sibert as a target when the group

told him about their plans to rob someone. The group then piled into a stolen vehicle

and followed Cobb's instructions to the Skyline Terrace apartment building. Cobb told

them which apartment was Sibert's, so the three in the back seat: Eppinger, David

Sharp, and Fountain, proceeded to Sibert's apartment and knocked on the door. Once

they were inside, the phony drug deal quickly turned into a robbery attempt, which Stark County, Case No. 2014 CA 00218 8

ended with Fountain struggling with and shooting Sibert, while Eppinger and David

Sharp fought with Pearson. Eppinger and David Sharp were able to flee the apartment

building and flee with Cobb and Keontye Sharp, who were waiting in the vehicle. The

four of them drove back to the West residence. Keontye Sharp left them to immediately

return to Cleveland, while the other three took a couple days to return there. Once

there, Cobb suggested that they go to Florida, and the three were arrested in North

Carolina on their way there. (T. (ll) at 63-84).

{¶21} Cobb did not testify or present any evidence in his case-in-chief at trial.

{¶22} After hearing all the evidence and deliberating, the jury found Appellant

guilty as charged.

{¶23} The trial court sentenced Appellant to 15 years to life on the Complicity to

Murder charge. The Complicity to Aggravated Robbery and Complicity to Aggravated

Burglary counts were merged with the Complicity to Murder count. The trial court also

imposed the mandatory 3-year prison term for the three firearm specifications. The

firearm specifications for the Complicity (Murder) and Complicity (Aggravated Burglary)

offenses were imposed consecutively, but the firearm specification for the Complicity

(Aggravated Robbery) offense was imposed concurrently. The aggregate prison term

was twenty-one (21) years to life imprisonment.

{¶24} Appellant now appeals, raising the following assignments of error for

review:

ASSIGNMENTS OF ERROR

{¶25} “I. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO

TWO CONSECUTIVE FIREARM SPECIFICATIONS. Stark County, Case No. 2014 CA 00218 9

{¶26} “II. THE APPELLANT'S CONVICTION FOR ONE COUNT OF

COMPLICITY TO MURDER, ONE COUNT OF COMPLICITY TO AGGRAVATED

BURGLARY AND ONE COUNT OF AGGRAVATED ROBBERY WERE AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

I.

{¶27} In his First Assignment of Error, Appellant argues that the trial court erred

in imposing multiple, consecutive sentences for the gun specifications in this case. We

disagree.

{¶28} Appellant assigns as error the trial court’s imposition of two, consecutive

gun specifications.

{¶29} R.C. §2941.145(A), provides in pertinent part:

{¶30} “(A) Imposition of a three-year mandatory prison term upon an offender

under division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless the

indictment, count in the indictment, or information charging the offense specifies 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.”

{¶31} Appellant argues that his crimes were committed as a single transaction,

and therefore consecutive sentences are prohibited by R.C. §2929.14(B)(1)(b).

{¶32} According to R.C. §2929.14(B)(1)(b), a court may not impose multiple

firearm specifications for felonies that were committed as part of the same act or

transaction unless R.C. 2929.14(B)(1)(g) applies. Stark County, Case No. 2014 CA 00218 10

{¶33} R.C. §2929.14(B)(1)(g) serves as an exception to the rule that multiple

firearm specifications must be merged for purposes of sentencing when the predicate

offenses were committed as a single criminal transaction, and provides:

If an offender is convicted of or pleads guilty to two or more

felonies, if one or more of those felonies are aggravated murder, murder,

attempted murder, aggravated robbery, felonious assault, or rape, and if

the offender is convicted of or pleads guilty to a specification of the type

described under division (B)(1)(a) of this section in connection with two or

more of the felonies, the sentencing court shall impose on the offender

the prison term specified under division (B)(1)(a) of this section for each

of the two most serious specifications of which the offender is convicted

or to which the offender pleads guilty and, in its discretion, also may

impose on the offender the prison term specified under that division for

any or all of the remaining specifications. (Emphasis added.)

{¶34} In the instant case, the record is clear that appellant was convicted of

multiple felonies, to wit: one count of complicity to murder, one count of complicity to

aggravated robbery and one count of aggravated burglary. The trial court was required

by R.C. §2929.14(B)(1)(g) to sentence appellant to the two most serious firearm

specifications that accompanied his felony convictions for complicity to murder and

complicity to aggravated burglary or complicity aggravated robbery.

{¶35} “[R]egardless of whether [a defendant's] crimes were a single transaction,

when a defendant is sentenced to more than one felony, including [murder] and

[aggravated robbery and/or aggravated burglary], the sentencing court ‘shall impose’ Stark County, Case No. 2014 CA 00218 11

the two most serious gun specifications.” State v. Isreal, 12th Dist. Warren No.

CA2011–11–115, 2012–Ohio–4876, ¶71. See also State v. Ayers, 12th Dist. Warren

No. CA2011–11–123, 2013–Ohio–2641, ¶ 20–25; State v. Cassano, 8th Dist. Cuyahoga

No. 97228, 2012–Ohio–4047, ¶32–34.

{¶36} We therefore find that the trial court did not err in concluding that the

firearm specifications accompanying the complicity to murder count and the complicity

to aggravated burglary were not subject to merger pursuant to R.C. §2929.14(B).

{¶37} We therefore find the trial court did not err in ordering two of the three

firearm specifications to run consecutively.

{¶38} Appellant’s First Assignment of Error is overruled.

II.

{¶39} Appellant, in his Second Assignment of Error, argues that his convictions

were against the manifest weight and sufficiency of the evidence. We disagree.

{¶40} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’ ” State v. Thompkins,

,

1997–Ohio–52,

, quoting State v. Martin,

,

(1983).

{¶41} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to Stark County, Case No. 2014 CA 00218 12

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks,

,

, paragraph two of the syllabus (1991).

{¶42} In the case sub judice, Appellant is challenging his convictions for

complicity (R.C. §2923.03(A)(2)) to murder, in violation of R.C. §2903.02(B) complicity

to aggravated burglary, in violation of R.C. §2911.11(A)(1) and (2), and complicity to

aggravated robbery, in violation of R.C. §2911.01(A)(1) and (2), which provide:

Complicity

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

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

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

***

Murder

***

(B) 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.

Aggravated Robbery

(A) No person, in attempting or committing a theft offense, as defined in

section 2913.01 of the Revised Code, or in fleeing immediately after the

attempt or offense, shall do any of the following: Stark County, Case No. 2014 CA 00218 13

(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that

the offender possesses it, or use it;

(2) Have a dangerous ordnance on or about the offender's person or

under the offender's control;

***

Aggravated Burglary

(A) No person, by force, stealth, or deception, shall trespass in an

occupied structure or in a separately secured or separately occupied

portion of an occupied structure, when another person other than an

accomplice of the offender is present, with purpose to commit in the

structure or in the separately secured or separately occupied portion of

the structure any criminal offense, if any of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict physical harm

on another;

(2) The offender has a deadly weapon or dangerous ordnance on or

about the offender's person or under the offender's control.

***

{¶43} Specifically, Appellant argues that the evidence presented by the State

failed to show that he was anything other than an "unsuspecting traveler" traveling with

others whom he "believed were going to buy weed from a known Canton drug dealer."

(Appellant's brief at 11). Stark County, Case No. 2014 CA 00218 14

{¶44} Here, the testimony presented at trial showed that Appellant was

instrumental in the aggravated robbery and aggravated burglary, which resulted in the

murder. Appellant suggested Sibert as a robbery target, he told the group where Sibert

lived, how to gain entrance to the apartment, warned them that Sibert would have a gun

on the living-room table, went along with the group to the apartment and waited in the

get-away car. Together with the rest of the testimony from Eppinger and the Sharp

brothers, as set forth in more detail above, we find sufficient evidence was presented as

to Appellant’s knowledge of the robbery/burglary which led to the death of Sibert.

{¶45} A fundamental premise of our criminal trial system is that ‘the jury is the lie

detector.’ United States v. Barnard,

(C.A.9 1973) (emphasis added),

cert. denied,

,

,

(1974). Determining the

weight and credibility of witness testimony, therefore, has long been held to be the ‘part

of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward,

,

, 724–725,

(1891)”.

United States v. Scheffer (1997),

,

, 1266–1267.

{¶46} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness's credibility. “While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence”. State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true. State v. Stark County, Case No. 2014 CA 00218 15

Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶21, citing State v. Antill

(1964),

, 67,

.; State v. Burke, Franklin App. No.

02AP1238, 2003–Ohio–2889, citing State v. Caldwell (1992),

,

.

{¶47} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that Appellant was guilty of the

complicity to murder, aggravated robbery and aggravated burglary. Appellant's

convictions are supported by sufficient evidence and not against the manifest weight of

the evidence.

{¶48} Based upon the foregoing and the entire record in this matter, and viewing

this evidence in a light most favorable to the State, a rational trier of fact could have

found Appellant guilty of the crimes as charged. Further, the judgment is not against the

manifest weight of the evidence

{¶49} Appellant’s Second Assignment of Error is overruled.

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

Stark County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

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