Summary
In State v. Myers (1978), 53 Ohio St.2d 74, R.C. 2923.03 (D) was applied as requiring a judgment of conviction to be set aside in a case where the only evidence linking the defendant with the crime was that supplied by one witness who was an accomplice.
Summary of this case from State v. VorysOpinion
No. 77-133
Decided February 8, 1978.
Criminal law — Complicity — Uncorroborated testimony of accomplice insufficient to convict — R.C. 2923.03(D) construed.
APPEAL from the Court of Appeals for Tuscarawas County.
On February 26, 1975, Mr. and Mrs. Elmer Lorenz were robbed in their fur shop located in Stone Creek, Tuscarawas County, Ohio, by two men carrying shotguns. Sheriff's deputies who investigated the robbery found only footprints from the fur shop to a point along the road where the footprints met apparent automobile tire tracks.
Nearly a year later, deputies obtained a statement from one Michael D. Willoughby, who confessed participation in the robbery and implicated the appellant, John J. Myers. The appellant was indicted by the January 1976 term of the Tuscarawas County grand jury, on one count of aggravated robbery, a violation of R.C. 2911.01. The case was tried, on April 21 and 22, 1976, to a jury which returned a verdict of guilty as charged. Judgment was entered upon the verdict by the Court of Common Pleas.
Upon appeal to the Court of Appeals, appellant's conviction and sentence of not less than four nor more than twenty-five years were upheld.
The cause is now before this court pursuant to the allowance of the appellant's motion for leave to appeal.
Mr. David J. Rohrer, for appellee.
Johnson Johnson Co., L.P.A., and Mr. Michael C. Johnson, for appellant.
Appellant bases his appeal on his belief that a conviction of complicity in which the identity of an offender is established by the testimony of an accomplice is invalid pursuant to R.C. 2923.03(D), effective January 1, 1974, unless said testimony is supported by other probative evidence. There was evidence by witnesses other than Willoughby to support a jury finding that the crime charged was committed, but there was no evidence other than the testimony of Willoughby identifying the appellant as one of the three persons involved.
R.C. 2923.03(D) relates to "complicity" and provides:
"No person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence."
This statute was enacted after the decision in State v. Flonnory (1972), 31 Ohio St.2d 124, in which paragraph three of the syllabus reads:
"A conviction may be based upon the uncorroborated testimony of an accomplice, except where otherwise specifically provided by statute."
The exception provided for by the statute changes the general rule recognized by this court in State v. Flonnory, supra. In this day of plea bargaining and immunized testimony, and under such a statute, it is vitally important that one implicating an accomplice do something more than point a finger. His testimony must be corroborated by some other fact, circumstance, or testimony which also points to the identity of the one he accuses as a guilty actor. The specific statutory language of R.C. 2923.03 (D) is otherwise meaningless.
In view of the independent finding by the Court of Appeals that "the claim of Willoughby that Myers was linked with the crime is uncorroborated," with which we concur, we need not determine how much corroboration is sufficient. However, where other states have required, by statute or judicial decision, corroboration of accomplice testimony, the test has generally been "to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence * * * which tends to connect the defendant with the commission of the offense.'" Forbes v. State (Tex.Crim.App. 1974), 513 S.W.2d 72, 76, certiorari denied, 420 U.S. 910.
See State v. Wolery (1976), 46 Ohio St.2d 316, 330, at footnote 8, a case subsequent to State v. Flonnory, supra, for an explication of the rules in the various jurisdictions regarding corroboration of accomplice testimony.
Appellant's conviction and sentence must be set aside. Accordingly, the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.