Complicity

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office
 

R.C. 2923.03 -- Complicity.
R.C. 2923.03(D) -- Special instruction to be given when accomplice testifies.
State v. Christian, 184 Ohio App. 3d 1, 2009-Ohio-4811 – During a police chase three passengers fired at the police from a car driven by the defendant. He was indicted on multiple counts of felonious assault. Using the verdict forms provided, the jury found him not guilty of felonious assault as a principal offender, but indicated they were unable to reach a verdict on a separate form based on complicity. The trial court erroneously discharged the defendant for want of a charging document. Complicity remained a viable theory of culpability based on the verdict forms without the need for reindictment. Complicity is implicated by every indictment. Decision follows the rationale of cases where the jury acquits on the indicted offense but hangs on a lesser.
 
State v. Johnson, 93 Ohio St. 3d 240, 2001-Ohio-1336 -- An aider and abettor must share the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime. Gang member was part of a three car caravan searching for a member of a rival gang they planned to kill in revenge.
 
In re T.K., 109 Ohio St. 3d 512, 2006-Ohio-3056 -- Syllabus: (1) The identity of the principal is not an element that the state must prove to establish the offense of complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2). (2) The doctrine of transferred intent applies in complicity cases."
 
State v. Hanning (2000), 89 Ohio St. 3d 86 -- Paragraph two of the syllabus: "The complicity statute, R.C. 2923.03, does not apply to the juvenile bindover criteria set forth in R.C. 2151.26." Also see: State v. Timmerman-Cooper (2001), 93 Ohio St. 3d 614 -- Hanning applies retroactively and for the benefit of a juvenile who pleaded guilty in adult court and did not pursue an appeal or postconviction relief. Agee v. Russell (2001), 92 Ohio St. 3d 540 -- Hanning is limited to R.C. 2151.26(B)(4)(b) mandatory bindovers, involving the mere use of a firearm. It does not apply to 2151.26(B)(3) mandatory bindovers involving category one offenses.
 
State v. Adrian, 168 Ohio App. 3d 300, ¶35 -- "The purported offense of attempted complicity to commit kidnapping is not equivalent to complicity to commit kidnapping. While the complicity and attempt statutes contemplate complicity to commit an attempted offense where the offense is not actually committed, they do not contemplate the offense of attempted complicity."
 
Standelfer v. United States (1980), 447 U.S. 10 -- Person charged as an aider and abettor may be convicted even though principal has been acquitted.
 
State v. Jacobozzi (1983), 6 Ohio St. 3d 59, 62 -- "While a principal offender need not necessarily be convicted in order to sustain another's conviction as an aider and abettor, there must still be sufficient evidence that an offense occurred."
 
State v. Hirsch (1956), 101 Ohio App. 425 -- Headnote 2: "In a criminal action against two or more defendants who are tried together, and, where there is but one issue to be decided by the jury, and where one defendant is charged as an aider and abettor, a verdict of guilty as to such defendant and not guilty as to a codefendant is inconsistent and must be set aside."
 
State v. McNeil (December 20, 1979), Franklin Co. App. No. 79AP-451, unreported (1980 Opinions 4088) -- Complicity requires that the crime actually have been committed. Conspiracy does not.
 
State v. Tumbleson (1996), 105 Ohio App. 3d 693 -- (1) Aider and abettor may be indicted following either the language of the complicity statute or that of the principal offense. Also see State v. Dotson (1987), 35 Ohio App. 3d 135, 138; Hill v. Perini (6th Cir. 1986), 788 F. 2d 406; State v. Wilson (1991), 77 Ohio App. 3d 701. (2) The 4 OJI 405.41 testimony of an accomplice instruction substantially complies with the language required by R.C. 2923.03(D). (3) It was improper for the prosecutor during argument to praise the codefendant for pleading guilty and faulting the defendant for going to trial.
 
State v. Grimsley (1998), 131 Ohio App. 3d 44 -- Indictment was not invalid because it failed to specifically allege the existence of a principal offender. It did name other defendants and allege complicity.
 
State v. Ensman (1991), 77 Ohio App. 3d 701 -- Amendment of bill of particulars nineteen days before trial to allege culpability as an aider and abettor did not change the name or identity of the crime charged, since an indictment phrased in terms of the principal offense is sufficient to charge complicity as well.
 
In re Howard (1987), 31 Ohio App. 3d 1 -- A juvenile complaint is sufficient to charge complicity if it alleges the defendant knowingly aided another.
 
Goins v. State (1889), 46 Ohio St. 457 -- An aider and abettor can be brought to trial for a higher degree of an offense than for which the principal has been convicted. Followed: State v. Robbins (1985), 27 Ohio App. 3d 171.
 
State v. Jackson (1993), 90 Ohio App. 3d 702 -- Aider and abettor could not be prosecuted for grand theft based on the principal's five prior theft convictions. While an aider and abettor may be punished as if he or she committed every act committed by the principal, the principal's criminal record may not be attributed to the aider and abettor.
 
State v. Perryman (1976), 49 Ohio St. 2d 14 -- Paragraph four of the syllabus: "In order to convict an offender of complicity, the state need not establish the principal's identity; pursuant to R.C. 2923.01(C), the state need only prove that a principal committed the offense."
 
State v. Woods (1988), 48 Ohio App. 3d 1, 6 -- (1) The actions of an accused as an accessory after the fact are not proscribed under Ohio law. Also see State v. Starr (1970), 24 Ohio App. 2d 56, 58. (2) It is error to instruct the jury that the defendant may be found guilty as an aider and abettor when the evidence would only have supported conclusions either that he was guilty as a principal or involved only as an accessory after the fact.
 
State v. Chapman (1986), 21 Ohio St. 3d 41 -- Syllabus: "An individual indicted for and convicted of R.C. 2911.01, aggravated robbery, and R.C. 2941.141, a firearm specification, is subject to a mandatory three-year term of actual incarceration under R.C. 2929.71, regardless of whether he was the principle offender or an unarmed accomplice. (State v. Moore [1985], 16 Ohio St. 3d 30, followed.) Also see State v. Sims (1984), 13 Ohio App. 3d 287; State v. Rust (1984), 14 Ohio App. 3d 314.
State v. Jackson, 169 Ohio App. 3d 440, 2006-Ohio-6059 -- Complicity in underlying offense and complicity with respect to firearm specifications are separate issues. Complicity in robbery and felonious assault was proven, but the defendant's gun was in another room, and a second gun in the possession of the principal offender was not proven operable.
 
State v. Sims (1983), 10 Ohio App. 3d 56, 59 -- Mere presence in a stolen car is not enough to sustain receiving stolen property and criminal tools convictions. An accused must be proven to have taken a role in the offense and not to have merely witnessed it being committed or to have acquiesced to its being committed. [Citing State v. Starr (1970), 24 Ohio App. 2d 56, 58; Smith v. State (1931), 41 Ohio App. 64, 67-68; Goins v. State, 46 Ohio St. 457; State v. Peasley, 79 Wash. 99, 141 P. 316.]
 
State v. Windner (1982), 69 Ohio St. 2d 267, 269 -- "(T)he 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 abettor." Also see Columbus v. Russell (1973), 39 Ohio App. 2d 139; State v. Ward (July 23, 1991), Franklin Co. App. No. 91AP-96, unreported (1991 Opinions 3448).
 
State v. Brooks (1996), 75 Ohio St. 3d 75 Ohio St. 3d 148, 151-152 -- Court refused to allow cross-examination to establish witness had originally been charged with complicity. While neither Evid. R. 609 nor 608(B) provided a basis for such cross, Evid. R. 616 did. (Bias, prejudice, interest or motive to misrepresent.)
 
State v. Mootispaw (1996), 110 Ohio App. 3d 566 -- Absent any other evidence of defendant's complicity in a theft, deceptive responses to polygraph questions is insufficient to establish guilt. Defendant was merely present when associate committed a theft.
State v. Jordan, 168 Ohio App. 3d 202, 2006-Ohio-538 -- Trafficking conviction not supported by the evidence where the defendant was seen introducing a confidential informant to the person who was observed selling drugs to the informant, but merely stood by while the transaction took place. This was insufficient to establish aiding and abetting.
 
State v. Mendoza (2000), 137 Ohio App. 3d 336 -- Defendant overheard heard codefendant express an interest in stabbing someone before joining in a fight where he did just that. Felonious assault convictions premised on aiding and abetting affirmed.
 
State v. Lucas, 100 Ohio St. 3d 1, 2003-Ohio-4778 -- Syllabus: "An individual who is the protected subject of a temporary protection order may not be prosecuted for aiding and abetting the restrainee under the protection order in violating said order." State v. Lucas 147 Ohio App. 3d 297, 2002-Ohio-2514, reversed. Gebradi v. United States (1932), 287 U.S. 112, followed. Accord: City of North Olmstead v. Bullington (2000), 139 Ohio App. 3d 565, holding a complicity charge was properly dismissed as the wife was in a protected class and could not be punished under the complicity statute.
 
State v. Moore, 161 Ohio App. 3d 778, 2005-Ohio-3311, ¶83-91 -- Complicity to rape counts do not merge for the complicitor when they do not merge for the principal offender.
 
City of North Olmstead v. Bullington (2000), 139 Ohio App. 3d 565 -- TPO prohibited husband from having any contact with wife. When police found her in the passenger seat of a car driven by her husband she was arrested and charged with complicity in his violation of the TPO. Charge was properly dismissed as wife was in a protected class and could not be punished under the complicity statute. Compare State v. Lucas 147 Ohio App. 3d 297, 2002-Ohio-2514.
 
State v. Taylor (1993), 66 Ohio St. 3d 295 -- Syllabus: "The fact that pursuant to R.C. 2923.03(F), a defendant who aids and abets another in committing an offense 'shall be prosecuted and punished as if he were a principal offender' and so may be convicted of aggravated murder under R.C. 2903.01(B) does not make the defendant 'the principal offender' for purposes of imposing the death penalty under R.C. 2929.04(A)(7). (State v. Penix [1987], 32 Ohio St. 3d 369...followed.)"
 
In re Washington (1998), 81 Ohio St. 3d 337 -- An aider and abettor may be found guilty of aggravated murder if from the circumstances it can be inferred that he individually is proven to have acted with an intent to kill. This may be inferred from entering into a common design knowing that a dangerous instrumentality was to be employed in committing the felony, or if the manner of committing the felony was likely to produce death.
 
State v. Hill (1994), 70 Ohio St. 3d 25, 27-28 -- Landlord gave tenant permission to grow marijuana in basement for his personal use. When subsequently prosecuted for aggravated trafficking as an aider and abettor, landlord was entitled to raise the R.C. 2925.03(F) personal use defense.
 
State v. Stepp (1997), 117 Ohio App. 3d 561 -- Mother didn't prevent her boyfriend's continued entry at bedtime to 14 year old daughter's room, encouraged birth control, told daughter to do what ever it took to keep boyfriend in the household, and threatened consequences if daughter became pregnant. Aiding and abetting felonious sexual penetration upheld.
 
State v. Monroe (1992), 81 Ohio App. 3d 745 -- In a fight at a drive in, "C'mon Weaver" and "kick her butt" was enough to establish aiding and abetting and not mere cheerleading. Also see State v. Pickett (1996), 108 Ohio App. 3d 312 where defendant did not make drug sale, but admitted informant to house, asked what she wanted, said there were rumors she was a narc, and threatened to pat her down.
 
In re Foster (1998), 128 Ohio App. 3d 566 -- Giving a friend a quarter to call in a bomb threat at the high school sufficient to prove complicity in inducing panic.
 
State v. Katz (1976), 51 Ohio App. 2d 14 -- Bar owner could be found guilty as an aider and abettor where he charged a prostitute ten dollars to solicit patrons in his bar.
 
State v. Cartellone (1981), 3 Ohio App. 3d 145 -- Headnote 2: "Where a co-defendant is charged with three counts of felonious assault as an aider and abettor, and the principal can be convicted of only one count under R.C. 2941.25, it is plain error to convict the co-defendant of any count of felonious assault other than the one for which the principal can be convicted."
 
State v. Norvett (June 26, 1980), Franklin Co. App. No. 79AP-844, unreported (1980 Opinions 1823, 1833-1836) -- Getaway car driver charged with multiple robberies committed by accomplices may be found guilty of only a single offense. R.C. 2941.25 focuses on the individual defendant and merges offenses if he was not actually present for the robberies.
 
State v. Williams (1990), 67 Ohio App. 3d 677 -- Complicity in mob violence that left one dead sufficient to sustain convictions for aggravated riot and involuntary manslaughter.
State v. Essa, 194 Ohio App. 3d 208, 2011-Ohio-2513, ¶52-64 – Two witnesses testified pursuant to a plea deal, but in the court’s view neither acted as an accomplice or coconspirator. The trail court was not obliged to instruct the jury on accomplice testimony in accordance with R.C. 2923.03(D). Both men helped the defendant as he fled the country following the poisoning death of his wife. Both might be viewed as accessories after the fact, but Ohio does not make such individuals accomplices.
 
State v. Frost, 164 Ohio App. 3d 61, 2005-Ohio-5510 -- Though the defendant did not have a weapon, he was culpable as an aider and abettor, even though the indictment charged him as a principal. There was ample evidence to sustain conviction, but the court instructed the jury that the defendant must be found to have had a weapon, and declined to instruct on aiding and abetting. Reversed, but a new trial is allowed as the basis for reversal was trial error, not insufficiency.
 
State v. Moody (March 13, 2001), Franklin Co. App. No. 98AP-1371, unreported -- (1) Defendant testified he fired his weapon in the air to induce a group of youths to flee after two of their number had been shot by the codefendant. It was error not to instruct the jury they must find he had the requisite intent to kill or cause serious physical harm in order to be found guilty as an aider and abettor. (2) If the principal offender acted in self-defense there was no offense, thus there can be no complicity. Jury must be instructed accordingly. State v. Hill (1994), 70 Ohio St. 3d 25, applied. Same case following retrial: State v. Moody, Franklin App. No. 02AP-353, 2003-Ohio-950.
 
State v. Ferguson (1986), 30 Ohio App. 3d 171 -- It is error to instruct the jury that the testimony of an accomplice is to be considered in the same manner as the testimony of any other witness.
 
State v. Parrish (1984), 12 Ohio St. 3d 123 -- The arresting officer is not an "accomplice" in a prostitution prosecution for purposes of former requirement that accomplice's testimony be corroborated. Question whether same would follow as to instruction concerning accomplice testimony now required by R.C. 2923.03(D).
 
State v. Scott (1980), 61 Ohio St. 2d 155 -- (1) At p. 165: "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 and 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." See State v. Lockett (1976), 49 Ohio St. 2d 48, reversed on other grounds, Lockett v. Ohio (1978), 438 U.S. 586. (2) Paragraph five of the syllabus: "Where a jury could reasonably find against the state on the issue of an aider and abettor's purpose to kill, and find for the state on the remaining elements of felony murder, which themselves would sustain a conviction for involuntary manslaughter, a charge to the jury on involuntary manslaughter is both warranted and required..."
 
Clark v. Jago (6th Cir. 1982), 676 F. 2d 1099 -- In an aggravated murder prosecution premised on felony murder, instructions must state that the defendant, charged as an aider and abettor, need be proven to have had an intent to kill. Also see State v. Mabry (1982), 5 Ohio App. 3d 13.
 
State v. Coleman (1988), 37 Ohio St. 3d 286, 289 -- In an aggravated murder case: "...if the jury is instructed that a purpose to kill may be inferred from the fact that the defendant engaged in a common design with others to commit the offense by force or violence, the jury must also be instructed that the inference is nonconclusive." While this requirement is specifically set forth in the aggravated murder statute, the same applies whenever an aider and abettor's intent is to be inferred from the conduct of others. See Sandstrom v. Montana (1978), 442 U.S. 510.
 

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Published by Timothy E. Pierce
 
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
 
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