[Cite as State v. Attia , 2021-Ohio-2890.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - MAJED A. ATTIA, Defendant-Appellant. CASE NO. 2021-L-003

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2019 CR 001073

O P I N I O N

Decided: Au g ust 23, 2021 Jud g ment: Affirmed

Charles E. Coulson , Lake County Prosecutor; Kristi L. Winner and Adam M. Downing , Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Edward R. LaRue , The Rockefeller Building, Suite 1300, 614 West Superior Avenu e, Cleveland, OH 44113 ( For Defendant-Appellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Majed A. Attia (“Mr. Attia”), appeals his conviction s following a jury trial in the Lake County Court of Common Pleas in which he was found guilty of two counts of complicity to aggravated burglary and two counts of c omplicity to felonious

assault. {¶2} Mr. Attia asserts four assignments of error, contending that th e trial court erred in failing to order judgments of acquittal on the four ch arged offenses pursuant to Crim.R. 29(A) due to the insufficiency of the evidence to susta in his convictions.2

Case No. 2021-L-003 {¶3} After a careful review of the record and pertinent law, we find as follows: {¶4} First, due to merger at sentencing, Mr. Attia was only “convict ed” of counts 1 and 3. Therefore, we will not review the sufficiency of the evidence underlying counts

2 and 4. {¶5} Second, construing the evidence in a light most favorable to th e state, the state produced sufficient evidence, if believed, to establish t he elements of complicity to aggravated burglary (count 1) beyond a reasonable doubt. A rea sonable jury could infer Mr. Attia was aware that soliciting or procuring the principal offender to assault Robert Finucan (“Robbie”) at the Finucan home would probably cause a c ertain result, i.e., the principal offender trespassing into the Finucan home. {¶6} In addition, to establish aggravated burglary, the state was no t required to prove that Robbie’s father (“Mr. Finucan”) was the intended vic tim of the underlying criminal offense or that Mr. Attia was aware that the principal offender would inflict, attempt to inflict, or threaten to inflict physical harm to Mr. Finucan. Rather, the state met its burden of production by establishing that Robbie was the in tended victim and that both Mr. Finucan and Robbie suffered physical harm. {¶7} Finally, construing the evidence in a light most favorable to t he state, the state produced sufficient evidence, if believed, to establish t he elements of complicity to felonious assault (count 3) beyond a reasonable doubt. The pri ncipal offender’s testimony indicates that Mr. Attia expressly contemplated Mr. F inucan being assaulted. Therefore, a reasonable jury could infer from Mr. Attia’s assur ance to the principal offender that “if the father jumped in,” Mr. Attia “was going t o have [his] back,” Mr. Attia was aware that soliciting or procuring the principal offender t o assault Robbie at the3

Case No. 2021-L-003 Finucan home would probably cause a certain result, i.e., Mr. L ewis feloniously assaulting

Robbie and/or Mr. Finucan. {¶8} Thus, we affirm the judgment of t he Lake County Court of Common Pleas.

Substantive and Pr ocedural History {¶9} On the evening of September 27, 2019, Mentor High School held i ts homecoming football game. Spectators in attendance included Mr . Attia’s younger brother, O.A.; his younger sister, Rana; and Robert Finucan (“R obbie”), who were all Mentor High School students. Physical Altercation {¶10} The football game had a Hawaiian theme, and spectators in the s tudent section wore beach clothing and were throwing around beach ball s. At one point, Robbie and Rana both reached for the same beach ball, which resulted i n some type of physical

contact. {¶11} O.A. was subsequently informed that Robbie had shoved his siste r. According to O.A., Robbie had also made fun of Rana the week pr ior. O.A. angrily confronted Robbie at his seat. When Robbie attempted to leave the area, O.A. followed him around the stadium. O.A. also contacted Robbie multiple ti mes via Snapchat wanting to fight. They eventually agreed to meet at Veteran’s Park in Mentor to fight, although Robbie later stated that he did not plan to show up. {¶12} Meanwhile, Mr. Attia was at h is parents’ house in Kirtland Hill s with his close friends Elijah McDougall (“Mr. M cDougall”), Isaiah Gullick (“Mr . Gullick”), Camryn Jennings (“Ms. Jennings”), and Sarah Keen (“Ms. Keen”). Mr. At tia and his friends had graduated from high school a couple of years prior. O.A. calle d Mr. Attia and told him4

Case No. 2021-L-003 what had happened between Robbie and their sister at the game. Mr. Attia and his four friends got into his Jeep, and Mr. Attia drove everyone to the game. {¶13} Hailey Bernot (“Ms. Bernot”) was a friend of Robbie and was wat ching the game. She witnessed O.A.’s encounter with Robbie and followed O.A. to Mr. Attia’s Jeep. As O.A. entered the Jeep, she leaned into the window and told M r. Attia, “Please don’t hurt my friend.” Mr. Attia replied, “I can’t promise that.” {¶14} After picking up O.A., Mr. Attia used O.A.’s phone to call Robb ie. He requested to speak to Robbie’s father, but Robbie responded wit h expletives and hung up. Mr. Attia drove to the Finucan home in Mentor and pulled i nto the driveway. He and Mr. McDougall got out and went to the front door, but no one wa s home.

Dewaune Lewis {¶15} Mr. Attia and O.A. remained upset about what had happened to th eir sister at the football game. Mr. Attia called Dewaune Lewis (“Mr. Lew is”) and drov e ever yone to pick him up at his house in Euclid. {¶16} According to Mr. Attia, he had purchased marijuana from Mr. Lew is a few days prior. During that visit, Mr. Lewis mentioned that he was always at home babysitting and wanted to get to know Mr. Attia and his friends better. Mr . Attia mentioned that he was having a party on Friday and agreed to pick up Mr. Lewis. {¶17} According to Mr. Lewis, however, Mr. Attia called that night be cause he wanted Mr. Lewis “to handle something” for him. Specifically, Mr. Attia offered to pay Mr. Lewis to fight for him. Mr. Lewis had never previously “hung o ut” with Mr. Attia but had seen him at the house of his older cousin, Billy Harper (“Mr. H arper”), who lived in5 Case No. 2021-L-003 Cleveland. According to Mr. Harper, he had previously told Mr. Attia that Mr. Lewis would help him fight. The Party {¶18} After picking up Mr. Lewis, Mr. Attia drove everyone back to hi s house, where they congregated in his apartment-style bedroom. Additio nal friends arrived, including Miranda Briggs (“Ms. Briggs”), Kailey Sikora (“Ms. Si kora”), Jason Grove (“Mr. Grove”), and Mr. Grove’s girlfriend, Alana Chester (“Ms. Cheste r”). Alexis Dion (“Ms. Dion”), who was Mr. McDougall’s gir lfriend, arrived later upon his request. {¶19} Mr. Lewis, Mr. Attia, and the other attendees drank alcohol and smoked marijuana. Mr. Attia introduced Mr. Lewis to some of the atten dees as “Billy’s cousin.” Most of the attendees had never met Mr. Lewis before, and many later testified that his presence and demeanor seemed unusual. {¶20} Many attendees also later testified that Mr. Attia was upset du ring the party about the situation between Robbie and his sister. According t o Ms. Dion, Mr. Attia spoke about getting “revenge” on behalf of his family. According to Ms. Chester, she encountered Mr. Attia, Mr. Lewis, and Mr. McDougall out on the balcony having a conversation that they did not want anyone else to hear. {¶21} According to Mr. Lewis, Mr. Attia said that Robbie had beat his sister and that he wanted Mr. Lewis to “f**k Robbie up.” To Mr. Lewis, th is meant that he was supposed to beat Robbie up the best way he could. Mr. Attia di d not want to fight Robbie

himself because Robbie knew him. Mr. Lewis was not from the ar ea, and no one knew anything about him.6

Case No. 2021-L-003 {¶22} Mr. Lewis and Mr. Attia planned to leave the party “to go f**k Robbie up.” Mr. Attia never said anything to Mr. Lewis about wanting to tal k to Robbie or Robbie’s father. Rather, Mr. Attia wanted Mr. Lewis to fight Robbie and told him that “if the father jumped in,” Mr. Attia “was going to have [his] back.” {¶23} Mr. Gullick left the party at about 9 p.m. to meet his girlfrie nd at their apartment. Mr. McDougall and Ms. Dion also left the party to g et food.

The Offenses {¶24} Eventually, four people remained at the party – Mr. Attia, Mr. Lewis, Ms. Keen, and Ms. Jennings. At about 10:30 p.m., Ms. Keen and Ms. Jennings were preparing to leave. Mr. Attia asked Ms. Keen to drive him to t he Finucan home. Ms. Keen responded that she did not want to drive him somewhere to fight. Mr. Attia stated that they were just going to talk to Robbie’s father. All four got into Ms. Keen’s car, and Mr. Attia gave Ms. Keen directions to the Finucan house. {¶25} When they arrived, Ms. Keen pulled into the driveway but then p arked on the street in front of the house. Mr. Lewis got out of the car , while everyone else, including Mr. Attia, stayed inside watching and waiting. Mr. Lewis walke d to the fr ont door and knocked. Joseph Finucan (“Mr. Finucan”), Robbie’s father, open ed the door slightly. Mr. Lewis asked where Robbie was, and Mr. Finucan responded that Ro bbie was not home. Mr. Finucan turned to his wife and told her to call the police, hoping this would scare off Mr. Lewis. As Mr. Finucan turned his head, Mr. Lewis punched h im hard on the left side of his jaw. Mr. Finucan flew backwards into a wall and onto th e floor. Mr. Lewis entered the house and headed up the stairs. Mrs. Finucan ran into the bathroom and called 911.7 Case No. 2021-L-003 {¶26} Mr. Finucan’s tooth had perforated his cheek, which caused him to bleed profusely from his mouth. He got up and went into his garage, where he grabbed a metal baseball bat. Mr. Lewis and Robbie came running down the stair s, at which time Mr.

Finucan hit Mr. Lewis with the baseball bat. Mr. Finucan and M r. Lewis wrestled on the ground while Robbie went to the garage and got a baseball bat. Mr. Lewis managed to

scramble out the front door. {¶27} Mr. Lewis returned to the backseat of Ms. Keen’s car. He was b leeding heavily from a gash in his forehead. According to Mr. Lewis, h e told Mr. Attia that he “beat Robbie up.” {¶28} Ms. Keen drove to Euclid to drop off Mr. Lewis at his house. W hen they arrived, Mr. Attia and Mr. Lewis got out of the car and spoke t o Mr. Lewis’s cousin, Mr. Harper. Mr. Attia came back to the car and asked Ms. Keen and Ms. Jennings if they had any cash on them, which they did not. According to Mr. Attia, he intended to purchase marijuana from Mr. Harper but realized he did not have any cash on him. According to Mr. Lewis, however, Mr. Attia paid him $5 that night. {¶29} After dropping off Mr. Lewis, the three friends went to a BP ga s station in Mentor. Mr. Attia purchased a Gatorade using his father’s cred it card, and Ms. Keen attempted to clean Mr. Lewis’s blood from her car. {¶30} At Mr. Attia’s request, Ms. Keen dropped him off at Newell Cree k, which is a housing development located near Mr. Attia’s house. Mr. Atti a called Mr. McDougall indicating that he was in trouble and needed to be picked up. Mr. McDougall and Ms. Dion picked up Mr. Attia at Newell Creek and dropped him off at his house.8

Case No. 2021-L-003 {¶31} Mr. Attia later called both Ms. Chester and Ms. Sikora via Face Time and told them not to talk about the football game. {¶32} According to Mr. Lewis, Mr. Attia came back the next day and pa id him $100. Mr. Attia stated that the police were questioning him, s o he had to delete Mr. Lewis’s phone number. Police Investigation {¶33} Officers from the Mentor Police Department responded to Mrs. Fi nucan’s 911 call. Mr. Finucan was taken to the hospital by ambulance, where he stayed overnight.

He received a CT scan which revealed blood on his brain. He al so sustained bruises all over his body . Robbie received a few scratches to his face but did not go t o the hospital. {¶34} Mr. Harper’s girlfriend took Mr. Lewis to the hospital, where h e received

stiches to his forehead. {¶35} After speaking to the Finucans, the police went to the Attia ho me to talk to O.A., who was not home. The police spoke with Mr. Attia, who c alled O.A. but did not

mention his involvement in the matter. {¶36} The police subsequently identified and interviewed the party at tendees, Mr. Lewis, and Mr. Harper. {¶37} Mr. Gullick and Mr. McDougall both made statements to police in dicating that they were aware the situation could get out of hand and th at they left the party to avoid involvement. At trial, however, Mr. McDougall contended that he had told the police “what they wanted to hear.” {¶38} Shortly after commencing the investigation, the police arrested both Mr.

Lewis and Mr. Attia.9

Case No. 2021-L-003 Indictment {¶39} In May 2020, the Lake County Grand Jury indicted Mr. Attia on t he following four counts: complicity to aggravated burglary in violation of R.C. 2923.03(A)(1), a felony of the first degree, by knowingly soliciting or procuring Mr. L ewis to commit aggravated burglary in violation of R.C. 2911.11(A)(1) (count 1); complici ty to aggravated burglary in violation of R.C. 2923.03(A)(2), a felony of the first degree, by knowingly aiding or abetting Mr. Lewis in committing aggravated burglary in violation of R.C . 2911.11(A)(1) (count 2); complicity to felonious assault in violation of R.C. 2923.03(A) (1), a felony of the second degree, by knowingly soliciting or procuring Mr. Lewis to commi t felonious assault in violation of R.C. 2903.11(A)(1) (count 3); and complicity to fe lonious assault in violation of R.C. 2923.03(A)(2), a felony of the second degree, by knowin gly aiding or abetting Mr. Lewis in committing felonious assault in violation of R.C. 2903 .11(A)(1) (count 4). {¶40} Mr. Attia waived his right to arraignment and entered not guilt y pleas to the charged offenses. Jury Trial {¶41} The matter was tried to a jury over three days. The state pres ented testimony from several witnesses, including Ms. Bernot, Mr. and Mrs. Finucan, Robbie, Ms. Keen, Ms. Jennings, Ms. Briggs, Ms. Sikora, Mr. Grove, Ms. Chester, Ms. Dion, the investigating police officers, Mr. Lewis, and Mr. Harper. {¶42} During his testimony, Mr. Lewis indicated that he had entered i nto a cooperation agreement with the state in which he agreed to plea d guilty to burglary and attempted felonious assault and to testify truthfully upon the state’s request. In return, the state agreed to recommend a prison sentence of no more than seven years.10

Case No. 2021-L-003 {¶43} The state also obtained testimony from Mr. McDougall and Mr. Gu llick as the court’s witnesses, and presented numerous exhibits, includi ng photographs, video recordings, and cell phone records. {¶44} Following the state’s case-in-chief, the defense moved for judg ment of acquittal pursuant to Crim.R. 29(A), which the trial court deni ed. {¶45} The defense presented testimony from O.A. and Mr. Attia. Upon resting, the defense renewed its motion for a judgment of acquittal purs uant to Crim.R. 29(A), which the trial court again denied. {¶46} Following deliberation, the jury returned guilty verdicts on al l four counts. The trial court ordered a presentence investigation, a drug and alcohol evaluation, and victim impact statements and scheduled the matter for sentencin g. Sentencing {¶47} At the sentencing hearing, the trial court determined that coun ts 1 and 2 and counts 3 and 4 merged for purposes of sentencing. The stat e elected to proceed with sentencing on counts 1 and 3. {¶48} The trial court sentenced Mr. Attia to prison terms of eight to 12 years on count 1 and three years on count 3 to run concurrently, resulti ng in a total prison term of eight to 12 years. The trial court subsequently issued a judgm ent entry memorializing the jury’s guilty verdicts and Mr. Attia’s sentences. {¶49} Mr. Attia appealed and presents the following four assignments of error for

our review: {¶50} “[1.] The trial court erred in f ailing to order a judgment of a cquittal pursuant to Ohio Rule of Criminal Procedure 29(A) on Count 1 due to the insufficiency of the11

Case No. 2021-L-003 evidence of each and every element of the crime of complicity t o aggravated burglary by solicitation or procurement of Dewaune Lewis to commit aggravat ed burglary. {¶51} “[2.] The trial court erred in failing to order a judgment of acquittal pursuant to Ohio Rule of Criminal Procedure 29(A) on Count 2 due to the insufficiency of the evidence of each and every element of the crime of complicity t o aggravated burglary by aiding or abetting Dewaune Lewis to commit aggravated burglary. {¶52} “[3.] The trial court erred in failing to order a judgment of acquittal pursuant to Ohio Rule of Criminal Procedure 29(A) on Count 3 due to the insufficiency of the evidence of each and every element of the crime of complicity t o felonious assault against Joseph Finucan by solicitation or procurement of Dewaune Lewis to commit felonious assault against Joseph Finucan. {¶53} “[4.] The trial court erred in failing to order a judgment of acquittal pursuant to Ohio Rule of Criminal Procedure 29(A) on Count 4 due to the insufficiency of the evidence of each and every element of the crime of complicity t o felonious assault against Joseph Finucan, by aiding or abetting Dewaune Lewis to commit f elonious assault against Joseph Finucan.” Effect of Merger {¶54} Mr. Attia challenges his “convictions” on all four of the charg ed offenses. According to the Supreme Court of Ohio, a “conviction” consists of a guilty verdict and the imposition of a sentence or penalty. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio2, 922 N.E.2d 182, ¶ 12; State v. Macko , 11th Dist. Lake No. 2016-L-022, 2017-Ohio253, ¶ 27.12

Case No. 2021-L-003 {¶55} As indicated, the trial court merged count 2 into count 1 and c ount 4 into count 3 and imposed sentences on counts 1 and 3. Since Mr. Att ia was only “convicted” of counts 1 and 3, we will not review the sufficiency of the ev idence underlying counts 2

and 4. {¶56} For this reason, Mr. Attia’s second and fourth assignments of e rror are without merit.

Standard of Review {¶57} We address Mr. Attia’s first and third assignments of error tog ether, where he contends that the trial court erred by denying his Crim.R. 2 9 motion for acquittal because the state failed to produce sufficient evidence to sust ain his convictions, respectively, on count 1 (complicity to aggravated burglary by soliciting or procuring) and on count 3 (complicity to felonious assault by soliciting or pr ocuring). {¶58} Crim.R. 29(A) provides that “[t]he court on motion of a defenda nt or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint,

if the evidence is insufficient to sustain a conviction of such offense or offenses.” Thus, when a defendant makes a Crim.R. 29 motion, he or she is challe nging the sufficiency of the evidence introduced by the state. State v. Patrick, 11th Dist. Trumbull Nos. 2003-T0166 & 2003-T-0167, 2004-Ohio-6688, ¶ 18. {¶59} “‘“[S]ufficiency” is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’” State v. Thompkins , 78 Ohio13

Case No. 2021-L-003 St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy.” Id

. {¶60} “An appellate court’s function when reviewing the sufficiency o f the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevan t inquiry is whether, after viewing the evidence in a light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime proven bey ond a reasonable doubt.”

Id

. {¶61} When evaluating the adequacy of the evidence, we do not conside r its credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if believed, the evidence can sustain the verdict as a matter of l aw. Id . at 386. In addition, circumstantial evidence and direct evidence inherently possess the same probative value, even when used to prove essential elements of an offense. See Jenks at 272. Complicity to Aggravated Burglary {¶62} Mr. Attia was convicted in count 1 of complicity in violation o f R.C. 2923.03(A)(1) by knowingly soliciting or procuring Mr. Lewis to commit aggravated burglary in violation of R.C. 2911.11(A)(1). {¶63} R.C. 2923.03 defines complicity. It provides, in relevant part , that “[n]o person, acting with the kind of c ulpability required for the co mmission of an offense, shall

* * * [s]olicit or procure another to commit the offense.” (Emphasis added.) R.C.14

Case No. 2021-L-003 2923.03(A)(1). A defendant who commits complicity in the commi ssion of an offense “is prosecuted and punished as if he were a principal offender.” R .C. 2923.03(F). {¶64} The statute does not define the terms “solicit” or “procure.” The trial court used the definitions set forth in the Ohio Jury Instructions, w hich define “solicit” as “to seek, to ask, to influence, to invite, to tempt, to lead on, to bring pressure to bear” and “procure” as “to get, obtain, induce, bring about, motivate.” Ohio Jury Instructions , CR Section 523.03(A) (Rev. February 6, 2016). This court has adop ted these definitions.

See In re S.J.F. , 11th Dist. Geauga No. 2010-G-2960, 2010-Ohio-5514, ¶ 18. {¶65} R.C. 2911.11 defines aggravated burglary. It provides, in rele vant part, that “[1] [n]o person, by force, stealth, or deception, [2] shall tr espass in an occupied structure * * *, [3] when another person other than an accomplice of the offender is present, [4] with purpose to commit in the structure * * * any criminal offense, [5] if any of the following apply: * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another * * *.” R.C. 2911.11(A)(1). Trespass {¶66} Mr. Attia first contends that the state failed to produce “any evidence” that he knowingly solicited or procured Mr. Lewis to trespass into t he Finucan home. {¶67} A person trespasses when he or she “[ k]nowingly enter[s] * * * the land or premises of another * * * without privilege to do so.” (Emphas is added.) R.C. 2911.21(A)(1). See R.C. 2911.10 (defining trespass, for purposes of the burglary statute, as a violation of R.C. 2911.21). {¶68} “A person acts knowingly, regardless of purpose, when the perso n is aware that the person’s conduct will probably cause a certain result or will probably be of a15

Case No. 2021-L-003 certain nature. A person has knowledge of circumstances when t he person is aware that such circumstances probably exist. When knowledge of the exist ence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avo id learning the fact.” R.C. 290 1.22(B). {¶69} This court has previously stated that the legal concept of “kno wingly” incorporates the scienter requirement that one ought to know on e’s actions will “probably

cause certain results.” State v. Magnusson , 11th Dist. Lake No. 2006-L-263, 2007-Ohio6010, ¶ 51. {¶70} Because a defendant’s mental state is difficult to demonstrate with direct proof, it may be inferred from the circumstances surrounding th e offense. State v. Worthy , 11th Dist. Lake No. 2004-L-137, 2005-Ohio-5871, ¶ 24; State v. Johnson , 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001). In the context of complicity, the relevant circumstances

include the defendant’s conduct “‘before and after the offense is committed.’” Johnson at 245, quoting State v. Pruett , 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). {¶71} In support of his argument, Mr. Attia relies on Mr. Lewis’s vol unteered statement during cross-examination, in which he stated, “That w as my fault that I went in house [sic].” According to Mr. Attia, this testimony “conclusi vely proves” that he never “sought, asked, influenced, invited, or pressured” Mr. Lewis “t o enter the Finucan home

at all.” {¶72} Mr. Attia quotes Mr. Lewis’s statement out of context. The rem ainder of the referenced exchange was as follows: {¶73} “Q. That was your fault.16

Case No. 2021-L-003 {¶74} “A. Yes. {¶75} “Q. That was not [Mr. A ttia’s] fault, was it? {¶76} “A. Well, [Mr. Attia] took me to the house. {¶77} “Q. But he didn’t tell you to go in the house? {¶78} “A. No, he did not tell me to go in the house but he took me t o the house. {¶79} “Q. He took you to the house. {¶80} “A. [Mr. Attia] knew what he was doing. {¶81} “Q. Okay. {¶82} “A. You knew them people knew him and knew his brother. {¶83} “Q. Okay. {¶84} “A. Come on now, I might not be from down here but you don’t g ot to try to play me like I’m slow.” {¶85} Mr. Attia’s argument also does not acknowledge the following te stimony during Mr. Lewis’s direct examination: {¶86} “Q. What did [Mr. Attia] tell you he wanted you to do to Robbi e? {¶87} “A. He wanted me to f**k Robbie up. {¶88} “* * * {¶89} “Q. [Mr. Attia] told you he wanted you to f**k Robbie up? {¶90} “A. Yeah, when somebody’s that mad what else do you expect they take you to somebody’s house, they show you the house. {¶91} “Q. Okay. What does f**k somebody up mean to you? {¶92} “A. Beat them up the best way you can. {¶93} “Q. What do you mean the best way you can?17

Case No. 2021-L-003 {¶94} “A. Just that’s the way I took it. Especially with him being mad, that’s the only thing on his mind, yeah, that’s the way I took it. That’s how he wanted it cause if he didn’t he would have never took me to the house and pointed out the house.” {¶95} Thus, contrary to Mr. Attia’s assertion, Mr. Lewis did not test ify that entering the Finucan home was his own idea. Rather, he believed Mr. Att ia wanted him to do so. {¶96} Mr. Lewis’s apparent acceptance of responsibility for some of h is actions does not negate Mr. Attia’s complicity. In fact, a complicity offense requires that the principal offender has “actually committed” the underlying offe nse. See R.C. 2923.03(C) (“No person shall be convicted of complicity under this section unless an offense is actually committed * * *”). {¶97} Further, the definitions of “solicit” and “procure” encompass m ore than an express request that the principal offender perform a specific act. See Johnson , supra , at 245 (“The fact that defendant did not articulate his intent will not allow him to escape responsibility for his clear act ions of complicity * * *”). {¶98} Mr. Attia also relies on the Ninth District Court of Appeals’ d ecision in State v. Rohr-George , 9th Dist. Summit No. 23019, 2007-Ohio-1264. In that case, th e defendant was convicted of complicity after her current lover m urdered her former lover.

Id. at ¶ 1. On appeal, the Ninth District held that the state fai led to present sufficient evidence that the defendant solicited or procured the principal offender to commit the

murder. Id

. {¶99} The court acknowledged that the state was not required to prese nt evidence of a “specific statement to solicit the murder.” Id . at ¶ 28. However, the state was required to present evidence “from which a reasonable fact finder could infer that the defendant,18

Case No. 2021-L-003 acting with the specific purpose to cause a murder, did somethi ng to seek, ask, influence, invite, tempt, lead on, pressure, get, obtain, induce, bring ab out, or motivate the principal

to commit the murder.” Id . The court found that the record before it contained “ no such

evidence to evaluate.” (Emphasis added.) Id . Specifically, the state presented “ no evidence of anything that [the defendant] said or did from which a reasonable fact finder could have concluded that [she], acting with the specific inten t to cause [the victim’s death], solicited or procured [the principal offender] to murde r him.” (Emphasis added.)

Id

. {¶100} We do not find Rohr-George to be instructive. Unlike that case, the state presented numerous witnesses and documentary evidence establish ing Mr. Attia’s conduct before, during, and after the offenses. In fact, Mr. A ttia concedes that the state presented sufficient evidence to establish that he asked Mr. Le wis to “beat up Robbie.” {¶101} The state cites in support of its argument the Ninth District’s decision in State v. Sprenz , 9th Dist. Summit No. 18254, 1998 WL 78675 (Feb. 11, 1998). I n that case, the defendant agreed to pay the principal offender $500 t o “scare” the victim and gave him the victim’s address. Id . at *1. The principal offender subsequently appeared on the victim’s porch and asked if she was there. Id . After being informed that she was not, the principal offender broke the front door window, entere d the house, assaulted the victim with a stun gun, and set the house on fire. Id . The defendant subsequently paid the principal offender $300 and congratulated him on a “good jo b.” Id

. {¶102} The defendant was subsequently convicted of complicity to commi t aggravated burglary, among other offenses. Id. at *2. On appeal, the defendant contended that there was no evidence that he did anything more than ask someone to19

Case No. 2021-L-003 “scare” the victim. Id . at *3. Therefore, there was no evidence that he asked anyone to

break into the victim’s house. Id . The Ninth District disagreed and found that the jury could reasonably infer that the defendant intended for the prin cipal offender to scare the victim at her home and that the “scare” the defendant sought in cluded trespassing into the victim’s dwelling for the pu rpose of feloniously assaulting her. Id

. {¶103} We agree with the state that Sprenz is factually similar to the present case. Further, the evidence regarding Mr. Attia’s conduct permits an even stronger inference

than in Sprenz

. {¶104} Mr. Lewis testified that Mr. Attia picked him up “to handle som ething.” Specifically, Mr. Attia offered to pay him to “f**k Robbie up.” After they “got drunk” at the party, Mr. Attia told Mr. Lewis that the plan was “to go f**k R obbie up” because Robbie

had beat Mr. Attia’s sister. Ms. Keen testified that Mr. Attia asked her to drive him and Mr. Lewis to the Finucan home, which she did. There is no disp ute that, upon their arrival, Mr. Lewis trespassed into the Finucan home by force. There is no evidence that Mr. Attia attempted to stop Mr. Lewis from doing so. {¶105} Following the offenses, Ms. Keen drove Mr. Lewis back to his ho use in Euclid despite the fact that he was “covered in blood” and blee ding from a “huge gash” in his forehead. Ms. Keen and Ms. Jennings both testified that af ter arriving at Mr. Lewis’s house, Mr. Attia asked them if they had any cash. Mr. Lewis te stified that Mr. Attia paid him $5 that night. {¶106} There is also no dispute that Mr. Attia asked Ms. Keen to drop him off at a housing development in Newell Creek rather than at his house. Mr. Attia called Mr. McDougall, who arrived in his car with Ms. Dion and drove Mr. A ttia home.20

Case No. 2021-L-003 {¶107} After the police responded to Mrs. Finucan’s 911 call, they wen t to the Attia home and spoke to Mr. Attia, who failed to disclose his involve ment in the matter. Ms.

Chester and Ms. Sikora both testified that Mr. Attia called the m via FaceTime and told them not to talk about the football game. {¶108} Finally, Mr. Lewis testified that Mr. Attia came back the next day and paid him $100, at which time Mr. Attia stated that he had to delete Mr. Lewis’s number because the police were questioning him. {¶109} Given the foregoing evidence, we conclude a reasonable jury cou ld infer Mr. Attia was aware that soliciting or procuring Mr. Lewis to a ssault Robbie at the Finucan home would probably cause a certain result, i.e., Mr. Lewis tre spassing into the Finucan

home. Physical Harm to Mr. Finucan {¶110} Mr. Attia next contends that the state failed to produce “any e vidence” that he knowingly solicited or procured Mr. Lewis for the purpose of committing assault, felonious assault, or aggravated menacing against Mr. Finucan o r that he was aware it was likely that Mr. Lewis would inflict, attempt to inflict, or threaten to inflict harm to Mr.

Finucan. {¶111} Mr. Attia’s argument misconstrues the state’s burden of product ion. {¶112} The fourth element of aggravated burglary requires a “ purpose to commit in the structure * * * any criminal offense.” R.C. 2911.11(A). “ A person acts purposely when it is the person’s specific intention to cause a certain result , or, when the gist of the offense is a prohibition against conduct of a certain nature, regardles s of what the offender intends21

Case No. 2021-L-003 to accomplish thereby, it is the offender's specific intention to engage in conduct of that nature.” R.C. 2901.22(A). {¶113} The trial court instructed the jury that the underlying “crimin al offense” was “assault,” “felonious assault,” and/or “aggravated menacing.” The trial court defined “assault” as causing or attempting to cause physical harm to Mr . Finucan and/or Robbie and “aggravated menacing” as causing or threatening to cause se rious physical harm to

Mr. Finucan and/or Robbie. Thus, to establish aggravated burglary, the state was not required to prove that Mr. Finucan was the intended victim of the underlying criminal

offense. {¶114} The fifth element is the aggravating element. It requires the infliction, attempted infliction, or threatened infliction of “physical har m on another.” R.C. 2911.11(A)(1). “Physical harm to persons” means “any injury, i llness, or other physiological impairment, regardl ess of its gravity or duration .” R.C. 2901.01(A)(3). {¶115} The statute contains no mental state for this element. The Sup reme Court of Ohio has held that in such circumstances, no culpable mental state must be proven. State v. Johnson , 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, ¶ 38 (“[I ]f the General Assembly intends for the additional elements to carry t heir own mens rea, it must say so. Otherwise, no culpable mental state need be proved for those elements”). {¶116} The trial court’s instructions also did not require a mental st ate for the principal offender’s infliction, attempted infliction, or threa tened infliction of physical harm. The instructions also did not specify a victim. Thus, to estab lish aggravated burglary, the state was not required to prove that Mr. Attia was aware it was likely that Mr. Lewis would inflict, attempt to inflict, or threaten to inflict physical ha rm to Mr. Finucan

.22

Case No. 2021-L-003 {¶117} As indicated, Mr. Attia concedes that the state presented suffi cient evidence to establish that he asked Mr. Lewis to “beat up Robbie,” which satisfies the foregoing definitions of “assault” and/or “aggravated menacing.” In addi tion, there is no dispute that both Mr. Finucan and Robbie suffered at least “physical harm.” Therefore, the state met its burden of production with respect to the fourth and fifth e lements of aggravated burglary. {¶118} Accordingly, construing the evidence in a light most favorable to the state, the state produced sufficient evidence, if believed, to establi sh the elements of complicity to aggravated burglary beyond a reasonable doubt. {¶119} Mr. Attia’s first assignment of error is without merit. Complicity to Felonious Assault {¶120} Mr. Attia was convicted in count 3 of complicity in violation o f R.C. 2923.03(A)(1) by knowingly soliciting or procuring Mr. Lewis to commit felonious assault against Mr. Finucan in violation of R.C. 2903.11(A)(1). {¶121} R.C. 2903.11(A)(1) provides, in relevant part, that “[n]o perso n shall knowingly * * * [c]ause serious physical harm to another * * *.” (Empha sis added.) {¶122} The applicable definitions of “solicit,” “procure,” and “knowin gly” are set forth

above. Solicit or Procure {¶123} Mr. Attia first contends that Mr. Lewis’s following testimony d uring crossexamination “proves” that he did not ask Mr. Lewis to felonious ly assault Mr. Finucan: {¶124} “Q. What happened next or why did you, why did you punch the f ather? {¶125} “A. I was drunk.23

Case No. 2021-L-003 {¶126} “Q. You were drunk? {¶127} “A. Yes, I wasn’t thinking right i n my mind. I wasn’t thinkin g right. {¶128} “* * * {¶129} “Q. You’re the one that punched the dad in the face? {¶130} “A. Yes. {¶131} “Q. And you’re the one that ran upstairs to get Robbie? {¶132} “A. Yes, yes. {¶133} “Q. Okay. And that was all you? {¶134} “A. Yes, okay.” {¶135} Once again, Mr. Attia quotes Mr. Lewis’s testimony out of conte xt. The remainder of the first referenced exchange was as follows: {¶136} “Q. [Mr. Attia] never told you to punch the father, did he? {¶137} “A. He also didn’t tell me not to go up to the house. {¶138} “Q. Okay. But he never told you to punch the father? {¶139} “A. He also didn’t tell me not to go up to the house.” {¶140} Contrary to Mr. Attia’s assertion, this testimony does not esta blish that Mr.

Lewis only feloniously assaulted Mr. Finucan because he was drunk or that feloniously assaulting Mr. Finucan was not part of the plan. As indicated, Mr. Lewis’s admission of criminal liability does not negate Mr. Attia’s complicity, and the definitions of “solicit” and “procure” encompass more than an express request. Knowingly {¶141} Mr. Attia next contends that even if he asked Mr. Lewis to “bea t up” Robbie, the state produced “no evidence” that Mr. Lewis’s felonious ass ault of Mr. Finucan was24

Case No. 2021-L-003 “probably (more likely than not) to occur.” He argues that inf erring knowledge would be “incompatible with logic and common sense.” {¶142} Mr. Attia’s argument does not acknowledge Mr. Lewis’s following testimony: {¶143} “Q. So did [Mr. Attia] talk to you about what the plan was? {¶144} “A. Yeah, to go f**k Robbie up. {¶145} “Q. So you left the party? {¶146} “A. Yeah, we all did. {¶147} “* * * {¶148} “Q. Did [Mr. Attia] ever tell you he wanted you to go talk to - - {¶149} “A. No. {¶150} “Q. -- Robbie? {¶151} “A. He didn't say not hing about talking. {¶152} “Q. Did he say he wanted to talk to Robbie’s dad? {¶153} “A. No, he didn't say nothing about talking. {¶154} “Q. What did he say to you? {¶155} “A. He wanted me to fight Robbie and he says if the father jum ped in he was going to have my back. {¶156} “Q. If who jumped in? {¶157} “A. Robbie’s father. {¶158} “Q. Okay. So [Mr. Attia] told you if Robbie’s father jumped i n he would have your back? {¶159} “A. Yeah.”25

Case No. 2021-L-003 {¶160} The foregoing testimony indicates that Mr. Attia expressly cont emplated Mr. Finucan being assaulted. Therefore, a reasonable jury could in fer from Mr. Attia’s assurance to Mr. Lewis that “if the father jumped in,” Mr. Atti a “was going to have [his] back” that Mr. Attia was aware that soliciting or procuring Mr. Lewis to assault Robbie at the Finucan home would probably cause a certain result, i.e., M r. Lewis feloniously assaulting Robbie and/or Mr. Finucan. {¶161} Accordingly, construing the evidence in a light most favorable to the state, the state produced sufficient evidence, if believed, to establi sh the elements of complicity to felonious assault beyond a reasonable doubt. {¶162} Mr. Attia’s third assignment of error is without merit. {¶163} For the foregoing reasons, the judgment of the Lake County Cour t of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J.,

concur.