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State v. Dillard3/28/2005
tim's awareness of the offense is not a statutory requirement. Thus, the jury did not lose its way in convicting Appellant of aggravated robbery of Gomez with a firearm specification. The record reflects that Appellant did attempt to rob Gomez while brandishing a weapon.
{ } Next Appellant contests his convictions as they relate to Kenefick and Burchfield. In a one paragraph argument, he asserts that there was no attempt to cause harm to Burchfield since Miller was identified as the individual demanding money.
{ } However, Miller testified that as he and Appellant were running from Beaver's apartment, Appellant was firing shots. Miller told Kenefick and Burchfield to empty their pockets while they were held at gunpoint. Appellant told Miller to shoot Kenefick, and Kenefick was shot by both Appellant and Miller. (Tr. Vol. III, pp. 595, 597, 653, 656.) Appellant and Miller left the scene together.
{ } Based on the foregoing, Appellant participated in the robbery of Kenefick and Burchfield at gunpoint. (Tr. Vol. IV, pp. 817-818.) The jury was instructed as to complicity for each offense. Appellant's actions in firing the handgun toward them plus Miller's demand is sufficient to support the aggravated robbery and firearm specifications. The jury did not lose its way on these counts.
{ } Finally, Appellant challenges his conviction for discharging a firearm into Beaver's occupied habitation. R.C. ยง2923.161 provides:
{ } "(A) No person, without privilege to do so, shall knowingly do any of the following:
{ } "(1) Discharge a firearm at or into an occupied structure that is a permanent or temporary habitation of any individual;"
{ } Appellant argues that there was no evidence in support of the proposition that he fired a gun into the apartment. He claims that since the handgun he was using that night was never found, the bullet lodged in Beaver's apartment wall could not be linked to him.
{ } However, testimony of both Miller and Brown places a nine-millimeter handgun in Appellant's possession on the night in question. Miller saw him firing the gun. Gomez saw a flash from a handgun aimed toward the apartment that night. (Tr. Vol. III, pp. 517-518, 524-525, 529.) The bullet traveled through Beaver's apartment's exterior wall and lodged in her interior wall. (Tr. Vol. IV, p. 707.) The bullet was determined to be consistent with ammunition used in a nine-millimeter handgun. (Tr. Vol. IV, p. 768.)
{ } Further, it is undisputed that the apartment was occupied at the time by Beaver and her two sons. Thus, the jury did not clearly lose its way in convicting Appellant of this offense.
{ } Based on the foregoing, Appellant's fourth assignment of error lacks merit and is overruled in its entirety.
{ } Appellant's fifth assignment of error states:
{ } "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING CONSECUTIVE PRISON TERMS AMOUNTING TO FORTY-SEVEN YEARS OF INCARCERATION IN A PENAL INSTITUTION."
{ } Appellant argues that his consecutive sentences were not justified and that his offenses do not constitute the worst form of any of these offenses in order to warrant maximum jail terms.
{ } Appellant was sentenced to a total of 47 years. This sentence was comprised of the ten-year maximum for the aggravated robbery of Beaver; five years for the felonious assault of Beaver; five years each for the aggravated robbery of Beaver and Gomez to be served concurrently; five years for the felonious assault of Burchfield to run concurrently with the eight-year maximum sentence for the felonious assault of Kenefick; five years each to be served
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