Summary
holding that "a firearm is an inherently dangerous instrumentality, the use of which is reasonably likely to produce death"
Summary of this case from State v. ByrdOpinion
No. 81-1825
Decided February 19, 1982.
Criminal law — Attempted murder — Elements proved beyond reasonable doubt, when.
APPEAL from the Court of Appeals for Cuyahoga County.
At approximately 1:30 a.m. on August 23, 1979, Officer Charles Brooks of the Cleveland Police Department went to visit his friend, Thomas J. Scanlon, who was working as a security guard at a U-Haul Co. lot located at the corner of West 63rd Street and Train Avenue in Cleveland.
While Brooks and Scanlon were standing in front of the lot, Officer Brooks noticed an automobile parked on the Train Avenue sidewalk. Brooks further observed that: (1) the rear license plate of the automobile was covered with a piece of cloth, (2) the vehicle had two occupants, and (3) the car engine was running.
Office Brooks, in full uniform, along with Scanlon, approached the vehicle, asked what was going on and observed Robert Widner, appellee, sitting in the driver's seat and Roger Widner, appellee's brother (the passenger), sitting in the passenger's seat. Brooks directed his five-cell flashlight full into the face of appellee, who uttered a profanity at the policeman.
See State v. Widner (1981), 68 Ohio St.2d 188.
At this point in the encounter, Officer Brooks directed appellee to turn off the motor and produce some identification. Appellee responded to these instructions by: (1) shouting another obscenity at the police officer, (2) putting the car in gear, and (3) driving away.
As appellee was driving the car away, the passenger turned, pointed and fired a shot from a chrome-plated handgun at Brooks and Scanlon. Another shot misfired. Brooks returned the fire with five or six shots from his service revolver. No one was injured in this exchange of gunfire.
After driving approximately 125 feet, appellee lost control of the vehicle and crashed it into a retaining wall. Shortly after abandoning the car, appellee and his brother were apprehended and identified, by Officer Brooks, as the two men involved in the Train Avenue gun battle.
For the foregoing actions, appellee was indicted by the Cuyahoga County Grand Jury for two counts of attempted murder. A jury convicted him of both counts of attempted murder and the trial court sentenced appellee to two concurrent terms of four to 25 years in the Columbus Correctional Facility.
The Court of Appeals reversed both convictions.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. John B. Gibbons, for appellant.
Mr. George L. Nyerges, for appellee.
R.C. 2923.03 provides in part:
"(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." (Emphasis added.)
R.C. 2903.02 provides in part:
"(A) No person shall purposely cause the death of another." (Emphasis added.)
R.C. 2901.22 provides in part:
"(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." (Emphasis added.)
Finally, R.C. 2923.02 defines "attempt" as:
"(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense."
Thus, reading the foregoing statutes in pari materia, in order to convict appellee of attempted murder, the prosecution had to prove, beyond a reasonable doubt, that: (1) appellee and the passenger had the specific intention, or purpose, to kill Brooks and Scanlon, and (2) appellee somehow aided the passenger in committing the offense of attempted murder.
Appellee contends — and we agree — that the mere presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abetor. See, generally, 21 American Jurisprudence 2d 324, Criminal Law, Section 167; Columbus v. Russell (1973), 39 Ohio App.2d 139.
However, as the facts show, appellee was much more than a passive spectator who was "merely present" at the scene of the gun battle. Rather, the record demonstrates that appellee actively assisted his brother in the attempted murders. Therefore, for the reasons that follow, we reverse the judgment of the Court of Appeals and reinstate appellee's convictions for two counts of attempted murder.
Under controlling precedent of the United States Supreme Court, Officer Brooks' investigative stop of appellee and his brother was lawful. The totality of the circumstances, particularly the covered license plate, demonstrated the requisite, specific, articulable facts which justified a reasonable suspicion that appellee and his brother were involved in criminal activity. Terry v. Ohio (1968), 392 U.S. 1. See, also, Brown v. Texas (1979), 443 U.S. 47.
There is sufficient evidence, direct and circumstantial, in this record from which a jury could infer that appellee knew that his brother was in possession of a gun at the time Officer Brooks began questioning the two men. During this questioning appellee: (1) failed to comply with the police officer's directions to turn off the car motor and produce some identification, and (2) evaded a proper investigative stop by driving the car away.
When the passenger pointed and fired the gun at the policeman and the security guard, appellee, the driver, failed to terminate the flight. Instead, appellee, with the full knowledge that a firearm was being discharged by the passenger, continued to drive away. These intentional evasive actions by the appellee clearly aided the passenger in the attempted murder of Brooks and Scanlon.
Given the fact that a firearm is an inherently dangerous instrumentality, the use of which is reasonably likely to produce death, see State v. Lockett (1976), 49 Ohio St.2d 48, paragraphs three and four of the syllabus, we believe that, based on the entire record, a jury could reasonably infer that appellee: (1) formed the specific intention to commit murder, and (2) aided his brother in the commission of the charged offenses.
The jury's verdict — guilty of two counts of attempted murder — unambiguously demonstrates that the prosecutor proved each element of attempted murder beyond reasonable doubt. As such, we see no reason to disturb the finding of the jury. State v. Eley (1978), 56 Ohio St.2d 169.
For all the foregoing reasons, the judgment of the Court of Appeals is reversed and the sentence of the trial court ordered into execution.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.