[Cite as State v. Moore , 2020-Ohio-3708.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. DEXTER L. MOORE Appellant C.A. Nos. 29417 29418

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 18 02 0431(B) CR 16 11 4057

DECISION AND JOURNAL ENTRY Dated: July 15, 2020

CARR, Judge. {¶1} Appellant, Dexter Moore, appeals the judgment of the Summit Cou nty Court of

Common Pleas. This Court affirms.

I. {¶2} This matter arises out of a deadly shooting that occurred in Ak ron, Ohio on the evening of November 16, 2017. D.A . was shot multiple times on Oakdale Avenue as he was walking home after patronizing the Baho Convenience Store (“Bah o”). {¶3} The Akron Police Department conducted an extensive investigatio n into the shooting. Jerry Alford was the first person charged in relatio n to the incident. Alford was ultimately convicted of multiple o ffenses, including murder. {¶4} Several months after Alford wa s indicted, the Summit County Gra nd Jury returned an indictment charging Moore in relation to the incident as wel l. Moore was charged with one2

count of aggravated robbery with a firearm specification, one c ount of felonious assault with a firearm specification, one count of felonious assault by means of a deadly weapon with a firearm specification, and one count of obstructing justice. Moore plea ded not guilty to the charges at arraignment. {¶5} The matter proceeded to a jury trial where Moore and Alford wer e tried together. Prior to trial, the State move d to dismiss the count of aggrava ted robbery along w ith the attendant firearm specification against Moore. The jury found Moore guil ty of one count of complicity to commit felonious assault and one count of obstructing justice. The jury found Moore not guilty of felonious assault by means of a deadly weapon and the firear m specifications. {¶6} The trial court imposed upon Moore a five-year prison sentence for felonious assault and a three-year prison sentence for obstructing justic e and ordered that those sentences be served concurrently. The trial court further ordered that Moor e’s five-year prison sentence in Case No. CR 18 02 0431(B) was to be served consecutive to a one-year sentence imposed in Case No.

CR 16 11 4057. {¶7} Now before this Court, Moore ra ises two assignments of error.

II.

ASSIGNMENT OF ERROR I

APPELLANT’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE TO SUSTAIN [A] CONVICTION. THE TRIAL COURT ERRED BY DENYING APPELLANT’S CRIM.R. 29 MOTION. {¶8} In his first assignment of error, Moore contends that the trial court erred in denying his motion for a judgment of acquittal as to the charges of com plicity to commit felonious assault and obstructing justice. This Court disagrees. {¶9} Crim.R. 29(A) provides, in relevant part:3

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of a cquittal of one or more offenses charged in the indictme nt, information, or complaint, if the evidence is insufficient to sustain a convic tion of such offense or offense s. The court may not reserve ruling on a motion for judgment of acquittal made at th e close of the state’s case. {¶10} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determ ine whether the evidence before the

trial court was sufficie nt to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279 (1991). An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such eviden ce, if believed, would convince th e 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 pro secution, any rational trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus. {¶11} Moore was convicted of complicit y to commit felonious assault. R.C. 2903.11(A)(1), which governs felonious assault, states that “[n ]o person shall knowingly * * * [c]ause serious physical harm to another[.]” R.C. 2901.22(B) p rovides that “[a] person acts knowingly, regardless of purpose, when the person is aware that the person’s c onduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an eleme nt of an offen se, such knowledge is established if a person subjectively believes that there is a high probability o f its existence and fails to make inquiry or acts with a consci ous purpose to avoid learning the fact.” {¶12} Complicity is governed by R.C. 2923.03(A)(2), which states, “[n ]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense[ .]” “A conviction based on c omplicity by aiding and abetting4

under R.C. 2923.03(A)(2) must be based on evidence showing ‘tha t the defendant supported, assisted, encouraged, cooperate d with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.’ This intent may be inferred from the surrounding circumstances.” (Internal citati on omitted.) State v. Parsons , 9th Dist. Lorain No. 18CA011328, 2019-Ohio-5021, ¶ 13, quoting State v. Johnson , 93 Ohio St.3d 240 (2001), syllabus. {¶13} Moore was also convicted of obstructing justice in violation of R.C. 2921.32(A)(5)/(C)(4). R.C. 2921.32(A)(5) provides that “[n]o p erson, with purpose to hinder the discovery, apprehension, prosecu tion, conviction, or punishmentof another for crime[] * * * shall * * * [c]ommunicate false information to any person[.]” R.C. 2 921.32(C)(4) provides that if the crime by the person aided is aggr avated murder, murder, or a fe lony of the first or second degree, then obstructing justice is a fel ony of the third degree. {¶14} On appeal, Moore argues that there is no evidence that he knowi ngly aided or

abetted Alford in the assault on D.A. Moore contends that he w as merely at Baho on the date of

the incident and that the State failed to demonstrate that he h ad any knowledge of Alford’s intentions to carry out an assault. Moore further points to th e jury verdicts in this case, which he

describes as “confused and cont radictory[,]” in support of the proposition that the jury’s verdicts did not speak to its real conclusions. In regard to his convic tion for obstructing justice, Moore argues that the State failed t o demonstrate that he took any ac tion to hinder the investigation. {¶15} The State presented evidence at trial of the following narrativ e. At approximately 5:30 on the evening of November 16, 2017, D.A. walked into the Highland Square Pharmacy where he saw his cousin, W.A. The two men had not seen each ot her in several months. After a brief conversation, W.A. agreed to give D.A. a ride to his apar tment on Oakdale Avenue, which5

was about five minutes away. During the short car ride down We st Market Street, D.A. said that, when he was at the bus stop that morning, someone had told him that they were going to shoot him. When W.A. inquired as to who made the statement, D.A. res ponded that he did not know the person who made the statement or why it was made. {¶16} D.A. asked to be dropped off at Baho, which is across the stree t from his house. When they pulled up to the store, they noticed two men standing outside. D.A. stated that one of the men was the individual from the bus stop who said that he w ould shoot D.A. W.A. asked if D.A. was referring to the man wearing a gray hat, and D.A. resp onded in the affirmative. At trial, W.A. identified the man in the g ray hat, who had indicated that he was going to shoot D.A., as

Alford. W.A. could not see the other man’s face. As D.A. exit ed the vehicle and entered the store,

the two men in front of the store relocated to the side of the store. W.A. testified that he saw the two men making their way back t o the front of the store as he p ulled out of the parking lot. {¶17} Around that time, the owner of a s tore on West Market Street he ard a gun shot followed by a string of consecutive gunshots. The store owner called 9-1-1. When the store owner walked to her front window, whic h looks down Oakdale Avenue, sh e saw a black man who was wearing shoes with red soles running down the street. The stor e owner thought that the footwear was distinctive because only the soles of the shoes were red. Police responded to the scene and

informed the store owner that a man had been shot on Oakdale Av enue. The victim, who was later identified as D.A., suffered a gunshot wound to the head and wa s later pronounced dead at a local hospital. {¶18} Police conducted a canvass of the neighborhood and approached b usinesses seeking security video footage. While police were not able to identify any eye-witnesses to the shooting, they were ultimately able to obtain security video footage from Baho. Detective Richard Doney,6

who served as the lead detective on this case, testified that t he Baho footage helped Akron police to identify two suspects, Moore and Alford. Moore can be seen in the video wearing shoes with red soles. Though Moore and Alford entered Baho on multiple oc casions on the evening of the shooting, neither of them made any purchases. When D.A. entere d the store after exiting his cousin’s vehicle, Alford entered the store shortly thereafter. Moore entered moments later. The

video shows that Moore and Alford conversed with each other and , at one point, positioned

themselves behind D.A. as he stood at the counter. Moore and A lford appeared to be attentive to D.A.’s movements. When D.A. ultimately decided to leave the st ore, Moore, seemingly at Alford’s direction, can be seen w atching where D.A. was going. Moore followed on the same path. Seconds later, Alford hurri edly walked on that same path as well. {¶19} The security video shows that approximately 20 seconds after Mo ore and Alford left the store, a Baho patron wa lked out the door and suddenly turned his head to the right. The patron testified at trial that he looked in that direction beca use he heard a gunshot. Police found D.A.’s body on the tree lawn in front of 18 Oakdale Avenue. Al ford’s DNA was found on a cell phone that was discovered near sce ne. Alford’s DNA was also fo und in saliva near the scene. {¶20} Detective John Bell testified th at a little over a month after the incident, Moore came to the police department a nd wanted to talk about the case . Moore explained that detectives had attempted to contact him to t alk about the incident at Baho . Although Detective Bell had not been assigned to investigate the shooting of D.A., he was on du ty when Moore arrived at the station

and he conducted an interview. D uring the interview, Moore sug gested that he did not see how D.A. arrived at Baho but he assumed it was by bus because D.A. was still wearing his work clothes Moore stated that he did not know anyone that he saw inside Bah o that evening, that he was minding his own business, and that he simply exchanged pleasant ries with several people inside7

the store. Moore indicated that he did not have any interactio ns with D.A. Moore said that he was not paying attention when D.A. le ft the store and that he did n ot notice anyone following D.A.

Moore further indicated that he was standing in the area of a n ewspaper vending machine and a dumpster outside of Baho when he heard five gun shots and start ed running. Moore recalled being shocked as he ran by a body on the ground. {¶21} Later that evening. W.A. received a phone call from his sister indicating that D.A. had been shot and killed. W.A. got in his car and drove back t o the area where he saw Alford riding a bike on Oakdale Avenue. {¶22} Moore’s argument that the trial court erred in denying his moti on for a judgment of acquittal as to the charge of complicity to commit felonious as sault is without merit. The State presented evidence that Moore worked cooperatively with Alford in the moments leading up to the shooting. Moore and Alford w ere standing together in front of Baho, which is in very close proximity to D.A.’s house. The security video from Baho shows that Moore and Alford were communicating with each other as they monitored D.A.’s movement s after he entered the store. When D.A. walked out of the store, Moore can be seen tracking D .A. from the doorway and then following after him. Alford followed behind Moore and the shoo ting occurred approximately 20

seconds later. The aforementione d evidence, when construed in the light most favorable to the State, was sufficient to susta in Moore’s convic tion for complic ity to commit felonious assault. {¶23} With respect to Moore’s argument that the verdicts did not repr esent the jury’s actual conclusions in regard to the facts, we reiterate that th is Court must construe the evidence in the light most favorable to the State when analyzing the suffic iency of the evidence. See Jenks , 61 Ohio St.3d at 279. Furthermore, as Moore couches his assign ment of error in terms of whether8

the trial court erred in denying his motion for a judgment of a cquittal on all charges, we note that the jury’s verdicts would have no bearing on the trial court’s ruling on his Crim.R. 29(A) motions. {¶24} The State further presented ev idence to support Moore’s convict ion for obstructing justice. While Moore contends on appeal that he did not do any thing to hinder the investigation,

the evidence at trial demonstrated that Moore made several fals e statements in his interview with Detective Bell. Perhaps most significantly, Moore told Detecti ve Bell that he was minding his own business in the store and that he did not notice anyone lea ving with D.A., or following D.A. The security video shows that Moore, seemingly at the direction of Alford, watched D.A. as he left the store and then following D.A. himself. Moore’s statem ent that he was merely standing in

front of the store at the time he heard gunshots is also contra dicted by the security video footage. This evidence was sufficient to survive Moore’s motion for a ju dgment of acquittal on the charge of obstructing justice. {¶25} The first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶26} In his second assignment of error, Moore contends that his conv ictions were against the manifest weight of the evi dence. This Court disagrees. {¶27} A conviction that is supported by sufficient evidence may still be found to be against the manifest weight of the evidence. State v. Thompkins , 78 Ohio St.3d 380, 387 (1997); Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of witnesse s and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way9

and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). {¶28} “When a court of appeals reverses a judgment of a trial court o n the basis that the verdict is against the weight of the evidence, the appellate co urt sits as a ‘thirteenth juror’ and disagrees with the fact[-]finde r’s resolution of the conflictin g testimony.” Thompkins at 387, quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). An appe llate court should exercise t he power to reverse a judgment as against th e manifest weight of the eviden ce only in exceptional cases. Otten

at 340. {¶29} In support of his manifest weight challenge, Moore renews many of the arguments made in his sufficiency challenge . Moore contends that the evi dence does not support the

conclusion that he was at the s cene of the shooting or took par t in the crime in any way. Moore argues that the State failed to present evidence that Moore had knowledge that D.A. would be arriving at Baho, or that Moore and Alford were in communicatio n prior to the incident. Moore further contends that the weight of the evidence supports the c onclusion that he voluntarily cooperated with the i nvestigation and spoke truthfully with Det ective Bell. {¶30} Upon a careful review of the record, we reject Moore’s claim th at the evidence in this case weighs heavily against conviction. Regardless of whe ther there was evidence that Moore and Alford communicated prior t o November 16, 2017, the securit y video footage from Baho showed Moore and Alford working i n tandem on the evening of the shooting. While Moore suggests that there was no credible evidence demonstrating that he and Alford were in communication that evening, a r easonable juror could interpret the security video footage as depicting Moore and Alford worki ng in concert to track D.A.’s m ovements in the moments leading up to the shooting. To the extent that Moore suggests this int erpretation of the footage is debatable,10

or that the witness testimony re garding what transpired in the videos is not credible, we note that, in resolving a manifest weight challenge, “[t]his Court has con sistently held that the trier of fact is in the best position to evaluate the credibility of witnesses a nd resolve factual disputes.” State v. Boatright , 9th Dist. Summit No. 28101, 2017-Ohio-5794, ¶ 34, quoting State v Bardos , 9th Dist. Medina No. 15CA0082-M, 2016-Ohio-8091, ¶ 16. Moreover, with re spect to Moore’s conviction for obstructing justice, Moore’s contention that he spoke truth fully with Detective Bell is not supported by the weight of the evidence. Although Moore stated in the interview that he kept to himself and that he did not know anyone in the store, the secur ity video footage shows him working in tandem with Alford. Furthermore, while Moore told Detective Bell that he was not paying

attention to whether D.A. was al one when he left the store, the security video footage shows Moore watching D.A. as he left the st ore and then following him. Und er these circumstances, we cannot conclude that this is the exceptional case where the trier of f act clearly lost its way. {¶31} The second assignment of error is overruled.

III. {¶32} Moore’s assignments of error ar e overruled. The judgment of th e Summit County

Court of Common Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.11

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. HENSAL, J. CONCUR.

APPEARANCES: ALAN M. MEDVICK, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTI NO, Assistant Prosecuting Attorney, for Appellee.