In re Washington

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 337

.]




                                  IN RE WASHINGTON.
                     [Cite as In re Washington, 

1998-Ohio-627

.]
Juvenile law—Adjudication of delinquency for aggravated murder supported by
        sufficient evidence, when.
 (No. 96-2706—Submitted November 5, 1997 at the Cleveland-Marshall College
                       of Law Session—Decided April 1, 1998.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 69283.
                                  __________________
        {¶ 1} On January 3, 1995, a group of youths including Patrick Washington
(“Washington”) planned and rehearsed the robbery of a taxicab driver. That same
day, at approximately 5:30 p.m., Ronald LaShore was robbed and shot to death
while he was driving his taxicab.
        {¶ 2} At about 4:00 p.m. on January 3, 1995, Washington, Antonio
Robinson, Brian Washington (Washington’s brother), Eric Fluitt, and Leland
Watkins were at Robinson’s house discussing how to rob a cab. During the
discussion, Washington had a .38-caliber gun and Watkins had a two-foot, 12-
gauge shotgun. They talked about the role each would play in the robbery and
practiced what they would do. During the rehearsal, in which Washington took an
active part, Watkins played with his shotgun by cocking and uncocking it and by
pointing it at people. The basic plan was to cock the gun to frighten the cab driver
and then search the driver for money or a gun.
        {¶ 3} Shortly thereafter, Washington called a cab. While Washington and
the others waited outside for the cab to arrive, Robinson, possibly at the direction
of Washington, shot the windshield of a car parked nearby with Watkins’s shotgun.
                                SUPREME COURT OF OHIO




At approximately 5:30 p.m., the cab arrived and Brian Washington, Fluitt, and
Watkins, carrying his shotgun, got into the cab.1
         {¶ 4} Upon arriving at the group’s destination, Watkins displayed his
shotgun and told the driver to give him all his money. When the driver saw the
gun, he attempted to put the cab in gear, at which time Watkins shot him.
         {¶ 5} Patrick Washington was charged with and adjudicated delinquent for
aggravated murder, R.C. 2903.01, and aggravated robbery, R.C. 2911.01, as an
aider and abettor.      On appeal, Washington argued that the adjudication of
delinquency for aggravated murder was not supported by sufficient evidence. The
court of appeals agreed and reversed upon finding insufficient evidence in the
record for the trial judge “to be able to infer that appellant Patrick Washington had
the requisite intent for aggravated murder.” The court of appeals affirmed the
adjudication of delinquency for aggravated robbery, which issue is not before this
court.
         {¶ 6} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                                 __________________
         Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Randi
Marie Ostry, George J. Sadd and Patrick J. McCarthy, Assistant Prosecuting
Attorneys, for appellant.
         James A. Draper, Cuyahoga County Public Defender, and Valerie R. Arbie,
Assistant Public Defender, for appellee.
                                 __________________
         PFEIFER, J.
         {¶ 7} In this case we are asked to determine whether there was sufficient
evidence before the trial court to support the adjudication of delinquency for

1. Some testimony suggests that LaShore’s cab was not supposed to be robbed and that a second
cab was the real robbery target. No other cab showed up.




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                                 January Term, 1998




aggravated murder. We conclude that there was and accordingly reverse the
judgment of the court of appeals and reinstate the determination of the trial court.
        {¶ 8} This court recently stated that “[a]n appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. The relevant inquiry is whether, after reviewing 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 (1991), 

61 Ohio St.3d 259

, 

574 N.E.2d 492

, paragraph two of the syllabus,
following Jackson v. Virginia (1979), 

443 U.S. 307

, 

99 S.Ct. 2781

, 

61 L.Ed.2d 560

.
        {¶ 9} Since Washington was adjudicated delinquent as an aider or abettor,
we turn initially to R.C. 2923.03 (the complicity statute) and then to the statute
governing aggravated murder, R.C. 2903.01, to determine the essential elements of
the offense. Accordingly, we must examine the record to determine whether there
was sufficient evidence before the trial court to support its finding that Washington
acted with the intent to cause death while aiding or abetting another person in the
commission of aggravated murder. R.C. 2929.03; State v. Coleman (1988), 

37 Ohio St.3d 286

, 

525 N.E.2d 792

, paragraph two of the syllabus.
        {¶ 10} Former R.C. 2903.01(B) states that “[n]o person shall purposely
cause the death of another while committing or attempting to commit, or while
fleeing immediately after committing or attempting to commit * * * aggravated
robbery or robbery * * *.” 139 Ohio Laws, Part I, 3. The record is replete with
evidence that Washington participated in the planning and rehearsal of a robbery
and that, during the actual robbery, LaShore was killed.2 Accordingly, upon
viewing the evidence in the light most favorable to the prosecution, we conclude

2. The record contains some evidence that Washington was the mastermind behind the entire
scheme and that he was intended to be the principal participant.




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that a rational trier of fact could have found the essential element of aiding or
abetting another in the commission of aggravated murder proven beyond a
reasonable doubt.
        {¶ 11} Even so, Washington cannot be adjudicated delinquent for
aggravated murder based solely on his complicitous actions. It is also necessary
for the state to establish that Washington acted “with the kind of culpability
required of the commission of [aggravated murder].” R.C. 2923.03(A).
        {¶ 12} Former R.C. 2903.01(D) states that “[n]o person shall be convicted
of aggravated murder unless he is specifically found to have intended to cause the
death of another. In no case shall a jury in an aggravated murder case be instructed
in such a manner that it may believe that a person who commits or attempts to
commit any offense listed in division (B) of this section is to be conclusively
inferred, because he engaged in a common design with others to commit the offense
by force and violence or because the offense and the manner of its commission
would be likely to produce death, to have intended to cause the death of any person
who is killed during the commission of, attempt to commit, or flight from the
commission of or attempt to commit, the offense. If a jury in an aggravated murder
case is instructed that a person who commits or attempts to commit any offense
listed in division (B) of this section may be inferred, because he engaged in a
common design with others to commit the offense by force or violence or because
the offense and the manner of its commission would be likely to produce death, to
have intended to cause the death of any person who is killed during the commission
of, attempt to commit, or flight from the commission of or attempt to commit the
offense, the jury also shall be instructed that the inference is nonconclusive, that the
inference may be considered in determining intent, that it is to consider all evidence
introduced by the prosecution to indicate the person’s intent and by the person to
indicate his lack of intent in determining whether the person specifically intended
to cause the death of the person killed, and that the prosecution must prove the




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                                January Term, 1998




specific intent of the person to have caused the death by proof beyond a reasonable
doubt.” 139 Ohio Laws, Part I, 3-4.
       {¶ 13} Washington cannot be adjudicated delinquent for aggravated murder
unless he is proven to have “intended to cause the death of another.” “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. It must be gathered from the surrounding facts and
circumstances under proper instructions from the court.” State v. Huffman (1936),

131 Ohio St. 27

, 

5 O.O. 325

, 

1 N.E.2d 313

, paragraph four of the syllabus. See
State v. Garner (1995), 

74 Ohio St.3d 49, 60

, 

656 N.E.2d 623, 634

. The General
Assembly has provided that intent to kill may be proved by inference. R.C.
2903.01(D). Where, as in this case, the prosecution seeks to prove intent to kill by
establishing the defendant’s participation in planning and executing a robbery, the
factfinder may infer the defendant’s intent to kill and may base its finding of intent
to kill solely on that inference. That the state has produced sufficient evidence to
permit the factfinder to draw the inference does not mandate a finding that the
defendant possessed a specific intent to kill.      In weighing the evidence, the
factfinder remains bound to consider all evidence of the defendant’s intent to kill,
including the defendant’s evidence on lack of intent to kill. R.C. 2903.01(D)
requires judges to instruct juries accordingly.
       {¶ 14} Prior to the enactment of former R.C. 2903.01(D) in 1981, this court
stated that “[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.” (Emphasis sic.)
State v. Scott (1980), 

61 Ohio St.2d 155, 165

, 15 O.O. 3d 182, 189, 

400 N.E.2d 375, 382

, citing State v. Lockett (1976), 

49 Ohio St.2d 48

, 

3 O.O.3d 27

, 

358 N.E.2d 5

                                  SUPREME COURT OF OHIO




1062, paragraphs three and four of the syllabus. The trial court relied on Scott in
inferring Washington’s intent to kill and the court of appeals reversed, primarily
because of its belief that Scott had been superseded by former R.C. 2903.01(D).
We conclude that Scott, which addresses the sufficiency of the evidence presented
to support a finding of intent to kill, and R.C. 2903.01(D), which addresses the jury
instructions to be given when intent to kill can be inferred, are compatible.
          {¶ 15} Washington, Robinson, Brian Washington, Fluitt, and Watkins
planned and rehearsed an armed robbery. They intended to scare the victim into
complying with their demands by brandishing a weapon, as it turned out, Watkins’s
loaded shotgun. Watkins’s shotgun had been demonstrated to be capable of firing
when Robinson shot the windshield of a parked car. Based on this and other
evidence in the record, which, under a sufficiency review, we must review in the
light most favorable to the prosecution, we conclude that a rational trier of fact
could have found the essential element of intent to kill proven beyond a reasonable
doubt.3
          {¶ 16} The trial judge stated to Washington at his adjudication and
disposition proceeding that “[w]e can infer your intention through different actions
that took place, different evidence and different things that were said. From the
evidence that was presented, we can infer that you had intent to murder.”
(Emphasis added.)          These statements further indicate that, in weighing the
evidence, the trial judge determined that Washington possessed the intent to kill
only after hearing and considering all the evidence, as is required by R.C.
2903.01(D). In using the verb “can,” the judge indicated that he was able to infer
intent to cause the death of another, not that he was compelled or required to do so.



3. As previously noted, it is not necessary for us to be convinced beyond a reasonable doubt that
Washington aided or abetted with the intent to cause the death of another. Our inquiry is limited to
determining whether viewing the evidence in the light most favorable to the prosecution, a rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.




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                                January Term, 1998




       {¶ 17} In its brief, the state accused the court of appeals of conducting a
trial de novo. The court of appeals did no such thing. It examined the legal standard
of inferred intent and determined that the standard had not been properly applied.
That we disagree means the court misinterpreted the law, not that it acted
improperly in ruling on the issue at all.
       {¶ 18} For the reasons stated above, we reverse the judgment of the court
of appeals and reinstate the adjudication of delinquency for aggravated murder
reached by the trial court.
                                                                 Judgment reversed
                                                                and adjudication of
                                                            delinquency reinstated.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and LUNDBERG
STRATTON, JJ., concur.
                               __________________




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