Ohio Appellate Reports
Unpublished
STATE v. RUSS, Unpublished Decision (12-22-2006)
2006-Ohio-6824 STATE OF OHIO, Plaintiff-Appellee, v. WILLIE
RUSS, Defendant-Appellant. No. C-050797. Court of Appeals
of Ohio, First District, Hamilton County. Date of Judgment
Entry on Appeal: December 22, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal From: Hamilton County Court
of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence
Vacated in Part, and Cause Remanded. TRIAL NO. B-0410259.
Joseph T. Deters, Hamilton County Prosecuting Attorney,
and Thomas J. Boychan, Jr., Assistant Prosecuting Attorney,
for Plaintiff-Appellee,
Bruce K. Hust, for Defendant-Appellant.
HENDON, P.J., and WINKLER, J., concur.
RALPH WINKLER, retired, from the First Appellate District,
sitting by assignment.
OPINION
GUCKENBERGER, Judge.
{¶ 1} Defendant-appellant, Willie Russ, was
originally indicted for one count of attempted murder and
two counts of felonious assault relating to the shooting of
Albert Crutchfield, as well as aggravated murder relating
to the death of Thomas Baskin. All of these counts had
firearm specifications under R.C. 2941.145. Following a
bench trial, he was convicted of voluntary manslaughter
under R.C. 2903.03, attempted voluntary manslaughter under
R.C. 2903.03 and 2923.02(A), and one count of felonious
assault under R.C. 2903.11(A)(1), along with a firearm
specification for each offense. Russ now appeals those
convictions. We affirm the trial court’s findings of guilt,
but vacate the sentences imposed and remand the case for
resentencing.
{¶ 2} Crutchfield testified that in the early
morning hours of April 24, 2002, he and Baskin decided to
go to the Queen Ann Bar on Central Avenue. Crutchfield left
his loaded .38-caliber revolver in the glove compartment
before entering the bar. It was crowded and Baskin bumped
into Russ, whom Baskin and Crutchfield had known for a long
time. Neither Russ nor Baskin would move aside, and “they
had a couple of words.” Crutchfield stated that he was not
involved and that he just stood there during the
altercation. Finally, a mutual friend told Russ and Baskin
to “chill out,” and they went around each other.
{¶ 3} Cozetta Ballard testified that Russ appeared
angry over the incident. She stated that he went to the pay
phone in the bar and made a call. She heard him say, “I’m
about to merk that nigger.” When asked to define the term
“merk,” she stated, “Somebody going to be hurt basically.”
{¶ 4} Baskin went to the bar and got a drink. Upset
over the incident, Crutchfield left the building, went to
his car, and got his gun. He fired three shots in the air
to “let off steam.” He reloaded the gun, put it in the
waistband of his pants, and went back inside the bar. He
and Baskin stayed at the bar, talking to friends until
closing time.
{¶ 5} As Crutchfield and Baskin were leaving, Russ
was sitting in his car and called the two men over. Russ
initially seemed to be looking for an argument, but,
according to Crutchfield, Baskin “was not trying to play
into it.” Eventually Russ seemed to calm down, and he and
Baskin continued to talk. Just then, Russ’s friends drove
up in a yellow Cadillac. They stopped, shook hands with
everyone, and drove around the corner.
{¶ 6} Crutchfield testified that as he and Baskin
were about to leave, Russ said that he was having car
trouble and asked for a ride home. Crutchfield reluctantly
agreed. Russ got in the back seat of Crutchfield’s car. The
front seat consisted of two bucket seats, separated by a
console. Crutchfield sat in the driver’s seat, and Baskin
sat in the passenger seat. Crutchfield handed Baskin his gun
and asked him to put it in the glove compartment. Russ
wanted to see the gun, so Baskin handed it to him.
{¶ 7} As Crutchfield started the car, he heard
gunshots. He stated that initially he did not pay much
attention to them because he was “so used to hearing
gunshots.” But when he went to step on the car’s gas pedal,
his legs would not work. He felt a burning sensation in his
lower back. He also started feeling dizzy, and he realized
that he had been shot.
{¶ 8} Crutchfield looked over at Baskin, who was
looking back at Russ and saying, “What the fuck are you
doing?” The shooting continued, and both Baskin and
Crutchfield fell out of the car. Crutchfield specifically
remembered shots coming from the back seat as well as from
outside the car.
{¶ 9} Firefighters arriving on the scene found
Baskin dead in the street, surrounded by bullet casings
from a .380-caliber semiautomatic weapon. He was shot at
least nine times. The bullets in his body came from both
.380 and 9-mm semiautomatic handguns, although police found
no 9-mm casings on the ground around him. The lethal shot
was a 9-mm bullet that entered the back of the head and
lodged in the front of his skull. An autopsy revealed
powder marks on Baskin’s head around the bullet hole and
that the bullet was fired from an “intermediate range.”
{¶ 10} The firefighters found Crutchfield barely
alive by the car, some distance away from Baskin. Several
bullet casings from a 9-mm semiautomatic weapon were found
around the car. Two spent bullets from a 9-mm handgun were
located behind the car. Additionally, a bullet from a .38
revolver was found on the front seat of the car. Crutchfield
was shot in the chest, abdomen, and leg. He endured
numerous surgeries. Doctor left some bullets in his body,
but they did recover two from a 9-mm handgun. Despite the
discovery of numerous casings and bullets, police never
recovered any of the guns used in the shootings.
{¶ ll} Russ presented an alibi defense. His
witnesses testified that it was Crutchfield who had been
involved in the altercation with Russ in the bar. They also
stated that Russ had left the bar before the shooting began
and that he was in the process of taking several individuals
home to various parts of town at the time the shootings
occurred.
{¶ 12} In his first assignment of error, Russ
contends that the evidence was insufficient to support his
convictions. He argues that the evidence showed that
Crutchfield and Baskin were shot by other gunmen and not by
the gun that Baskin had handed to Russ. This assignment of
error is not well taken.
{¶ l3} An 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 the evidence, if believed, would have
convinced the average mind of the defendant’s guilt beyond
a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found
the essential elements of the crime proved beyond a
reasonable doubt.[fn1]
{¶ 14} Although he was indicted for aggravated
murder relating to the death of Baskin, Russ was convicted
of voluntary manslaughter, an offense of inferior degree to
murder.[fn2] R.C. 2903.03(A) provides, “No person, while
under the influence of sudden passion or in a sudden fit of
rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to
incite the person into deadly force, shall knowingly cause
the death of another[.]”
{¶ 15} Because courts have held that the mitigating
circumstances of sudden passion or rage brought about by
serious provocation are presumed to benefit the defendant,
the essential elements of voluntary manslaughter are that
no person shall knowingly cause the death of another.[fn3]
A person acts knowingly, “regardless of his purpose, when
he is aware that his conduct will probably cause a certain
result or will probably be of a certain nature. A person
has knowledge of circumstances when he is aware that such
circumstances probably exist.”[fn4]
{¶ l6} Russ was also convicted of attempted
voluntary manslaughter and felonious assault on
Crutchfield. R.C. 2923.02(A) defines an attempt. It
provides, “No person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the
commission of an offense, shall engage in conduct that, if
successful, would constitute or result in the offense.”
R.C. 2903.11(A)(1) defines felonious assault. It states,
“No person shall knowingly * * * cause serious physical harm
to another[.]”
{¶ 17} Russ argues that the evidence did not show
that Russ himself had killed Baskin and injured
Crutchfield, but that the evidence “overwhelmingly points
to other gunmen.” This argument fails because the evidence
demonstrated that Russ had aided and abetted those who did
fire the actual shots. Ohio’s complicity statute covers
accomplices who aid and abet the principal offender.[fn5]
Accomplices can be prosecuted and punished as if they were
the principal offenders.[fn6]
{¶ l8} To support a conviction for complicity by
aiding and abetting, the evidence must show that the
defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the
crime, and that the defendant shared the criminal intent of
the principal.[fn7] The state may show aiding and abetting
by direct or circumstantial evidence. It can be inferred
from “presence, companionship and conduct before and after
the offense is committed “[fn8] The state need not prove
the identity of the principal to convict an offender of
complicity.[fn9]
{¶ 19} The evidence in this case showed that a
confrontation occurred in the bar between Crutchfield,
Baskin, and Russ, who had all known each other a long
time.Though Crutchfield minimized the confrontation and his
participation in it, the testimony of other witnesses
supported the inference that it was more significant.
Subsequently, a witness heard Russ call someone on the
phone and say, “I’m going to merk that nigger.”
{¶ 20} As Crutchfield and Baskin were leaving the
bar and talking with Russ, Russ’s friends drove up, greeted
the three of them, and then drove around the corner. Russ
managed to get inside the car that Crutchfield was driving
and then to get his hands on Crutchfield’s .38 revolver.
Suddenly, shots went off both inside and outside the car,
killing Baskin and nearly killing Crutchfield. Ballistics
evidence showed that several guns were involved in the
shooting, including a .38 revolver.
{¶ 21} Under the circumstances, the state’s
evidence, when viewed in a light most favorable to the
prosecution, could have convinced a reasonable trier of
fact that Russ had aided and abetted others in shooting
both Baskin and Crutchfield following the confrontation in
the bar. Thus, a rational trier of fact could have found
beyond a reasonable doubt that the state had proved all the
elements of voluntary manslaughter, attempted voluntary
manslaughter, and felonious assault. The evidence was
therefore sufficient to support Russ’s convictions, and we
overrule his first assignment of error.
{¶ 22} In his second assignment of error, Russ
contends that his convictions were against the manifest
weight of the evidence. The concepts of weight and
sufficiency are different and involve different standards
of review. The evidence is insufficient to support a
conviction if there is a complete failure of proof by the
prosecution, thereby barring a retrial under the Double
Jeopardy Clause.[fn10] But when the evidence is sufficient
to support a conviction, an appellate court may still
reverse the conviction as being against the manifest weight
of the evidence.[fn11]
{¶ 23} Nevertheless, after reviewing the evidence,
we cannot conclude that the trier of fact lost its way and
created such a manifest miscarriage of justice that we must
reverse Russ’s convictions and order a new trial. The
evidence showed that Russ arranged the ambush of Baskin and
Crutchfield and that he at least initiated or participated
in the shootings. Therefore, the convictions are not
against the manifest weight of the evidence.[fn12] Russ
argues that his witnesses were as credible as the state’s,
but matters as to the credibility of evidence are for the
trier of fact to decide.[fn13] Consequently, we overrule
Russ’s second assignment of error and affirm the trial
court’s findings of guilt.
{¶ 24} In his third assignment of error, Russ states
that the trial court improperly sentenced him. He argues
that he should have been sentenced on only one firearm
specification because all three felonies were committed as
part of the same act or transaction. This assignment of
error is well taken.
{¶ 25} R.C. 2929.14(D)(1)(b) provides that the
sentencing court should not impose more than one mandatory
prison term on an offender for a firearm specification “for
felonies committed as part of the same act or transaction.”
The phrase “same act or transaction” means “a series of
continuous acts bound together by time, space and purpose,
and directed toward a single objective.”[fn14]
{¶ 26} The state argues that because the crime
involved two separate victims, sentencing on separate
firearm specifications was proper. But the state relies on
a case that involved allied offenses of similar import,
which involves a different analysis.[fn15] In assessing
whether multiple firearm specifications are proper, a court
should focus on an individual’s ” ‘overall criminal
objectives, not on the specific animus for each crime.’
Whether a defendant had a common purpose in committing
multiple crimes is a broader concept than animus.”[fn16]
{¶ 27} In State v. Anderson,[fn17] the defendant and
another individual shot at three men on bicycles. The
defendant was convicted of three counts of felonious
assault and three firearm specifications. He was sentenced
to five to fifteen years’ incarceration on each count and
to three years’ actual incarceration on each firearm
specification, to run consecutively.
{¶ 28} This court held that the defendant could only
be sentenced to one term of actual incarceration on the
firearm specifications. We stated that “the same offense
was committed against separate victims in one continuous
sequence of events. The felonious assaults occurred
simultaneously and clearly developed from a single criminal
adventure.”
{¶ 29} In State v. Bonner,[fn18] the defendant had
been engaged in a scuffle with Jerome Crutcher. A short
time later, as the defendant was going down a set of
stairs, he saw Crutcher and four other individuals.
Crutcher started toward the defendant, and the defendant
shot him. The defendant then fired a second shot, which
injured a bystander. He was convicted of two counts of
felonious assault, each with a firearm specification. We
held that the two offenses were part of the same act or
transaction and, therefore, that the law authorized only one
term of actual incarceration.
{¶ 30} Similarly, in this case, all the offenses
were part of a single criminal adventure, notwithstanding
that they involved two victims. The offenses involved one
continuous sequence of events; they were connected in time
and space since all the shots were fired closely together
and at the same car. The assailants’ actions involved a
single objective: injuring or killing Crutchfield and
Baskin in retaliation for the earlier incident in the
bar.[fn19]
{¶ 31} We hold that the three felonies of which Russ
was convicted were part of the same act or transaction
within the meaning of R.C. 2929.14(D)(1)(b). Therefore, the
trial court should only have sentenced Russ to one term of
actual incarceration. We sustain his third assignment of
error, vacate the sentences imposed for the firearm
specifications, and remand the case for resentencing on the
specifications. We affirm the trial court’s judgment in all
other respects.
Judgment affirmed in part, sentence vacated in part, and
cause remanded.