[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. McFarland , Slip Opinion No. 2020-Ohio-3343.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -3343

T HE S TATE OF O HIO , A PPELLEE , v . M C F ARLAND , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State v. McFarland , Slip Opinion No. 2020-Ohio-3343.] Criminal law—Complicity—Conspiracy—Aggravated murder—Sufficiency of the evidence—Court of appeals’ judgment affirmed. (No. 2018-1116—Submitted Decembe r 10, 2019—Decided June 18, 202 0.)
A PPEAL from the Court of Appeals for Cuyahoga County, No. 105570, 2018-Ohio-2067.

_________________ K

ENNEDY , J. {¶ 1} In this discretionary appeal from the Eighth District Court of Appeals,
we are asked to determine whether there was sufficient evidence to support the convictions of the appellant, S heila McFarland, on charges rela ting to the murder of Robert Williams. The Eighth District Court of Appeals held that there was sufficient evidence to support th e convictions. We agree and t herefore affirm the judgment of the a ppellate court.S UPREME C OURT OF O HIO

2 FACTUAL AND PROCEDURAL BACKGROUND {¶ 2} Robert Williams was gunned down in the hallway outside his apartment on November 14, 2015. McFarland did not pull the tri gger and was not
at the scene of the murder. The issue in this case is whether there was sufficient evidence produced at trial to support the jury’s verdicts that McFarland had conspired to murder Williams and had been complicit in the acts leading to his
death. {¶ 3} There is no dispute as to why Williams was killed and who kille d him. Williams was a drug dealer whose cooperation with police had le d to the arrest and jailing of his supplier, Eddie “Mann” Brownlee. McFarland was Brownlee’s girlfriend, and she, too, had been arrested on drug charges due to Williams’s cooperation with police. Ryan Motley, an associate of Brownlee , killed Williams, with encouragement from Brownlee to, at the very least, harm Wi lliams. This case
is about McFarland’s involvement in the murder. The arrest of Brownlee and McFarland {¶ 4} Williams was 64 years old at the time of his death and was livi ng in Euclid with his girlfriend, Ko rri Henderson, in the Indian Hill s Senior Community Apartments. He also sold drugs there. After police caught Wil liams drug dealing in and around the Indian Hills complex, they searched his apart ment and recovered crack cocaine. They arrested both Williams and Henderson; the pair then agreed to become confidential informants against their supplier, Brown lee. {¶ 5} Police used Williams to conduct three controlled drug buys from Brownlee. In two of those buys, Brownlee handled the transacti on with Williams. In the third, the purchase was made from McFarland. Police arr ested Brownlee and McFarland directly after the thi rd transaction. Both were take n to the Euclid Police Department; McFarland was releas ed, but Brownlee was kept in ja il. It was October 25, 2015.January Term, 2020

3 Calls from jail {¶ 6} Brownlee and McFarland almost i mmediately suspected that it was Williams who was responsible for t heir arrests. Brownlee calle d McFarland numerous times from jail; those calls were recorded, and portio ns were later played to the jury. Brownlee called his own cellphone, which McFarlan d possessed. On
Brownlee’s first call to McFar land from jail, on October 25, 20 15, McFarland suggested to Brownlee that it was Williams who had set him up, and Brownlee said that he was going to “get him.” Motley, the eventual triggerma n, was with McFarland when Brownlee called, and he also talked to Brownlee on that call. Brownlee told Motley, “I need you to handle this. * * * Get Rob .” On that same call, Brownlee asked McFarland what had happened to his “hammer ,” in other words, his gun. She reported th at Motley had retrieved it from the hotel room that she and Brownlee had been staying in and had then given it to B rownlee’s brother, Chris. Motley testified that he got the gun back from Chris wi thin two days of giving it to him and that that gun was the murder weapon. {¶ 7} On subsequent calls from jail, Brownlee, incensed about his predicament, discussed his suspicions about Williams and Hender son working with police and McFarland agreed. He told McFarland that he was goi ng to “beat [Williams’s] ass,” that he was going to “get him,” and that Wil liams was not going to get away with what he had done. He asked McFarland whether Motley knew
that Williams had been the informant. McFarland had talked to Motley about it, and McFarland reported to Brownlee that Motley said that Willia ms would “have to be handled.” McFarland reporte d that many of their associat es thought it was
Williams who had informed on Brownl ee and that “something got t o be done.” On another call, McFarland reported that she had talked to William s and Henderson and they had denied setting up Br ownlee, but McFarland said she knew the couple had been involved by the way they were acting. During a call j ust before BrownleeS UPREME C OURT OF O HIO

4 was released, when the subject of Williams came up, McFarland u rged Brownlee not to talk about it, saying, “ You never know about this phone. ”
McFarland’s activities while Brownlee was jailed {¶ 8} McFarland maintained some contact with Williams and Henderson even after her arrest. On October 27, 2015, McFarland called H enderson from Brownlee’s cellphone and left tw o messages in which she accused Henderson and Williams of working with detectives and being snitches. But sh e also met with Williams and Henderson and got a ri de from them to the county j ail to add money to Brownlee’s commissary account. {¶ 9} With Brownlee in jail, McFarland sought help from Motley; she suggested that they sell drugs together to raise money to post Brownlee’s bond. McFarland saw Motley every day while Brownlee was in jail and t ogether they raised money for Brownlee by selling drugs. {¶ 10} Motley later testified at McFarland’s trial; although he was th e state’s witness, the state confr onted him at points with prior testimony and with a previous written statement he had prepared about the events con cerning Williams’s death. Motley testified that McFarland would vent to him about Brownlee being in jail. In discussions about the inf ormants, McFarland told Motl ey that “they” needed to be “f[—-]ed up.” And she communicated with Motley about the gun that would become the murder weapon. Events after Brownlee’s release {¶ 11} On November 10, 2015, Brownlee was released from county jail. He and McFarland almost immediately went back to selling drugs tog ether. On or around November 12, Brownlee and McFarland delivered crack to o ne of Brownlee’s customers, Dwayne Jackson. Jackson testified that M cFarland told him, “Watch out for Rob, t hey’re snitching.” {¶ 12} Sometime between Brownlee’s release from jail on November 10
and Williams’s murder on November 14, Brownlee and Motley met i n a hotel roomJanuary Term, 2020

5 in Willoughby and discussed wh at to do about Williams; McFarlan d was also in the hotel room. Motley testified that Brownlee told him to “go rough the dude up, beat him up” and that Brownlee of fered to pay Motley’s accompli ces. {¶ 13} Henderson testified at McFarland’s trial. She stated that the night before the murder, Williams recei ved a threatening call from Br ownlee saying that he was out of jail and would be coming for him and that Henders on and Williams were going to see their graves . According to Henderson, other threatening calls followed. A truck appeared at Williams’s apartment complex tha t evening, and four people got out and started staring up at Williams’s apartm ent window, where he was standing. Henderson calle d police to the apartment and filed a police report. After the police left, Henderson called a friend who also lived in the complex and she and Williams went there to stay until morning. {¶ 14} In the early hours of November 14, while at the friend’s apartm ent, Henderson got a call from McFar land. Henderson te stified that the call came between 4:00 and 5:00 a.m., but tele phone records revealed that no calls had come from Brownlee’s phone after 3:11 a.m. Henderson told McFarland they had been getting threatening calls, and McFarland laughed it off. When Henderson told McFarland that the calls had come from Brownlee, McFarland deni ed Brownlee
had made the calls a nd claimed she had been with him all night. Henderson
testified:

When she called, she just as ked, she was like, How you-all doing? And I was like, What you mean? I’m like, How do you think we're doing? We’ve been getting threatening calls all ni ght. And she was like, What you mean? And I was like, Mann [Brownlee’s nickname] been calling Rob phone threatening us. A nd she was like saying what and whatever, and I was like talking a bout we going to die and he out of jail now, he coming to see us,S UPREME C OURT OF O HIO

6 whatever, whatever. And she was like, You sure that was Mann? And I said, Yeah, it was his phone. I said, It came from you-a ll phone. And she was like, He ain’t made no calls like that. Bu t she was like, I’ve been with him the whole time. And I said, Well, they came from you-all phone unless so mebody else had you-all phone.

{¶ 15} Henderson testified that McFarla nd said she had to end the call because Brownlee was coming. After that call, Henderson and Wi lliams returned to their own apartment. Henders on testified that they didn’t s leep much and at around 10:00 a.m., Williams went out to take a walk down the ha llway. The shooting {¶ 16} Williams was shot as he walked down the hallway outside his apartment. Motley was the shooter. He had two other people wi th him, his brother Raymond and another acquaintance, Rahkee Young. All three snuc k into the apartment complex and put on masks and gloves after they got in side. Motley testified that he had placed tape over the door peepholes of th e apartments near Williams’s apartment (although DNA tests revealed his brother’s DNA on the tape) so that those neighbors could not see what was going on in the hallway. The three
hid in the stairwell at the end of the hall behind a door. Sur veillance video shows that when Williams left his apartment and was walking down the hallway, Motley and Young emerged from behind the door and approached Williams. Williams stopped and turned, and after a brief confrontation, Motley qui ckly fired one shot from close distance. The three then fled. Motley called Brown lee later that evening and told him, “It’s done.” {¶ 17} Motley testified that later that night or the next day, Brownle e met him and paid him with drugs t hat were worth around $4,000 and t hat the three assailants, Brownlee, and McFarland met at a hotel.January Term, 2020

7 {¶ 18} Henderson was able to identify Motley from the apartment building’s surveillance footage. Henderson told a responding o fficer that she had been threatened by people she knew as Mann and Sheila and that she and Williams had been working with the narcotics department. Trial and appellate proceedings {¶ 19} Ryan Motley, Raymond Motley, Young, Brownlee, and McFarland were all indicted on ten counts, as follows: Count 1, aggravate d murder under R.C. 2903.01(A) (committed with prior calculation and design); Count 2, aggravated murder under R.C. 2903.01(B) (committed in the course of commit ting felonious assault); Count 3, conspiracy t o commit aggravated murder or mu rder under R.C. 2923.01(A)(1); Count 4, murder under R.C. 2903.02(B) (committed while committing aggravated burglary); Count 5, murder under R.C. 290 3.02(B) (committed while committing feloni ous assault); Count 6, feloni ous assault under R.C. 2903.11(A)(1) (knowingly causing serious physical harm); C ount 7, felonious assault under R.C. 2903.11(A)(2) (committed with a deadly weapo n); Count 8, aggravated burglary under R.C. 2911.11(A)(1) (inflicted physica l harm on the victim); Count 9, aggravated burglary under R.C. 2911.11(A)(2) (committed with a deadly weapon); and Count 10, kidnapping under R.C. 2905.01(A )(3). All ten counts included a firearm specification. {¶ 20} McFarland’s case was tried to a jury. At the conclusion of the state’s case, McFarland’s counsel move d for dismissal under Crim.R. 29, arguing that the
state had failed to meet its burde n to present sufficient evide nce to establish the elements of the charges in the ten-count indictment. The trial judge denied the motion, and the jury found McFarl and guilty on all ten counts. For purposes of sentencing, the trial court merged Counts 1, 2, 4, 5, 6, and 7 (the aggravated-murder, murder, and felonious-assault c ounts), Counts 8 and 9 (the aggr avated-burglary counts), and all the gun specifica tions. The trial court sente nced McFarland to life in prison without the possibility of parole on Count 1, a concu rrent 11 years onS UPREME C OURT OF O HIO

8 Count 3, a concurrent 11 years on Count 8, and a concurrent 11 years on Count 10. The judge merged all the gun specifications and added three yea rs to her sentence for the gun specification on Count 1, to be served prior to the life sentence, and a $20,000 fine on that count. {¶ 21} McFarland appealed to the Eighth District Court of Appeals, and that
court affirmed the convictions. In the appellate court, the st ate conceded that the kidnapping and aggravated murder convictions should have merged for sentencing. The court “remanded for resentencing for the sole purpose of me rging the kidnapping count with the aggravated murder count and allowing the state to
determine on which count to proceed to sentencing.” State v. McFarland , 8th Dist. Cuyahoga No. 105570, 2018-Ohio-2067, ¶ 67. This court accepted one proposition
of law for review: “A criminal d efendant’s constitutional right s are violated when she is found guilty based on insufficient evidence.”
LAW AND ANALYSIS {¶ 22} McFarland’s proposition of law is axiomatic—“a c onviction based on legally insufficient evidence constitutes a denial of due pr ocess. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.” State v. Thompkins , 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). Therefore , the question we face does not concern the effect of a conviction based upon insufficient evidence. Instead, we address a question appellate courts deal with regularly— whether the evidence was sufficient to support the jury verdict s in this case against
this defendant. We conclude tha t the verdicts were based upon sufficient evidence. Sufficiency of the evidence {¶ 23} McFarland argues that the evidence presented by the state was insufficient to support a convicti on on any of the crimes with which she was charged. “Sufficiency of the evidence is the legal standard ap plied to determine whether the case may go to the jur y or whether the evidence is legally sufficient asJanuary Term, 2020

9 a matter of law to support the jury verdict.” State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). Retrial is barred if a reversal is base d upon a finding that the evidence was legally insufficient to support the conviction . “ ‘A verdict of not guilty, whether rendered by the jury or directed by the trial j udge, absolutely shields
the defendant from retrial. A reversal based on the insufficie ncy of the evidence
has the same effect because it means that no rational factfinde r could have voted to
convict the defendant.’ ” Thompkins at 387, quoting Tibbs at 41. {¶ 24} This court has set forth the sta ndard appellate courts should e mploy in reviewing the sufficiency of the evidence for a conviction:

An appellate court’s functi on when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether suc h evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inqu iry is whether, after viewing the evidence in a light most favorabl e to the prosecution, any rational tr ier of fact could have found th e essential elements of the crime proven beyond a reasonable doub t. ( Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), followed.)

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of th e syllabus, superseded by constituti onal amendment on other grounds as stated in
State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). The trier of fact h as the responsibility “fairly to resolve conflicts in the testimony, t o weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319.S UPREME C OURT OF O HIO

10 {¶ 25} The trial court sentenced McFa rland on four counts only—Count 1 (aggravated murder committed with prior calculation and design) , Count 3 (conspiracy to commit aggravated murder or murder), Count 8 (ag gravated burglary while inflicting physical h arm on the victim), and Cou nt 10 (kidnapping), so we consider the sufficiency of the evidence on those convict ions only. 1 State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (“a ‘co nviction’ consists of a guilty verdict and the imposition of a sentence or penalty” [emphasis sic]); S tate v. Myers , 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 138 (merger of kidnapping count with aggravated-robbery and aggrava ted-burglary counts moots sufficiency-of-the-e vidence claim regarding kidnap ping count). Complicity {¶ 26} The major consideration in determining the sufficiency of the
evidence in this case is not whether the individual crimes were committed but
whether the evidence of McFarland’s involvement in them was suf ficient to find her guilty of the crimes. There is no suggestion that McFarlan d was present at the scene of the shooting. For the bulk of the charges, the centra l issue is whether the state proved that McFarland was complicit in the commission of the crimes. R.C. 2923.03 is Ohio’s complicity statute. It states:

(A) No person, acting with the kind of culpability required
for the commission of an offense , shall do any of the following : (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense;

1. Pursuant to the judgment of the court of appeals, after rema nd to the trial court McFarland will be sentenced on only three counts due to the merger of the kidn apping and aggravated murder convictions. At this point, we do not know whether the state w ill choose sentencing for aggravated murder or kidnapping, so we review all four convictions for suf ficiency.January Term, 2020

11 (3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; (4) Cause an innocent or irresponsible person to commit the
offense.

{¶ 27} The statute does not define “aid or abet,” but this court has s tated that to aid or abet is “ ‘[t]o assist or facilitate the commiss ion of a crime, or to promote its accomplishment,’ ” State v. Johnson , 93 Ohio St.3d 240, 243, 754 N.E.2d 796 (2001), quoting Black’s Law Dictionary 69 (7th Ed.Re v.1999). {¶ 28} R.C. 2923.03(F) provides that anyone who violates the complicit y statute “shall be prosecuted a nd punished as if he were a princ ipal offender” and that an offender need not be charged under R.C. 2923.03, but in stead may be charged with complicity in terms of the principal offense. The refore, the state was not required to explicitly allege complicity. State v. Skatzes , 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 32. McFarland was not charge d with complicity under the statute but w as charged with the principal offenses. {¶ 29} “To support a conviction for comp licity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated wit h, advised, or i ncited the principal in the commission of the crime, a nd that the defendant shared t he criminal intent of the principal.” Johnson at syllabus. “ ‘Participation in criminal intent may be inferred from presence, compa nionship and conduct before and af ter the offense is
committed.’ ” Id. at 245, quoting State v. Pruett , 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). “The court must view the evidence in the light most favorable to the prosecution and defer to the trier of fact on questions of credibility and the weight assigned to the evidence. State v. Fry, 125 Ohio St.3d 163, 2010- Ohio-1017, 926 N.E.2d 1239, ¶ 146.” State v. Kirkland , 140 Ohio St.3d 73, 2014- Ohio-1966, 15 N.E.3d 818, ¶ 132.S UPREME C OURT OF O HIO

12 {¶ 30} As explained in detail below, the evidence at trial was suffici ent to prove that McFarland was complicit in the crimes associated wit h the killing of
Williams. Aggravated murder {¶ 31} In Count 1, McFarland was charged with aggravated murder pursuant to R.C. 2903.01(A). Under that statute, “[n]o person shall purposely, and with prior calculation and design, cause the death of another.” The element of prior calculation and design “require[s ] a scheme designed to impleme nt the calculated
decision to kill.” State v. Cotton , 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978). The evidence was sufficient to support a conviction based on McFarl and’s participation and complicity in the scheme to kill Williams. {¶ 32} McFarland was at the center of t he series of events that led to the killing of Williams. From the spark of the idea that revenge w ould be had against Williams and Henderson in Brownlee’s call from jail on October 25, to the telephone call she made to Hende rson hours before the murder to assure Henderson that Brownlee was not threatening her and Williams, McFarland h elped move the plan forward. {¶ 33} In one of the first calls from jail, McFarland and Brownlee ide ntified Williams as a snitch and Brownlee said that he was going to “ge t him.” McFarland brought Motley in on the call. She made it clear that she had had prior conversations with Motley about t he “hammer,” the gun that Motl ey would eventually use to shoot Williams. Motley testified that he had received a text from McFarland regarding “their” g un, meaning Brownlee and McFarland ’s gun. {¶ 34} While Brownlee was in jail, McFarland worked with Motley to sel l drugs to finance Brownlee’s bail. During her time with Motley, McFarland made
clear to him that Williams and Henderson had to be dealt with. McFarland let the
two know in a voicemail on October 27 that she considered them to be snitches. McFarland told Motley that they needed to be harmed. In anothe r telephone callJanuary Term, 2020

13 with Brownlee, McFarland made clear to him that she had talked to Motley about
what to do about Williams and Henderson and that Williams would “have to be
handled.” She had talked to o ther people about Williams and He nderson and told Brownlee that everybody knew about their role in McFarland’s an d Brownlee’s
arrests and that “so mething got to b e done.” In a November 9 t elephone call closer to Brownlee’s release from jail , she was more circumspect: afte r Brownlee said, “I could kick they ass,” McFarland responded that they should not talk about it on the phone. {¶ 35} Once Brownlee got out of jail, things moved quickly. McFarland
was in the hotel room when Motle y and Brownlee agreed that Motl ey would harm Williams. Although Motley testifie d that the plan was only to “rough up” Williams, the presence and quick use of the gun are evidence that murder was the plan, as was Brownlee’s phone-call threat to Williams and Henderson that the y were going to see their graves. The night before the murder, threatening pho ne calls—including the “see your graves” call—were made to Williams and four men a rrived in the apartment parking lot in a truck and seemed to threaten William s and Henderson. Williams and Henderson were frightened enough to stay with some one else in the apartment complex. In the early morning of November 14, hours before the murder, McFarland called Henders on and she attempted to assure her that it could not have been Brownlee making the calls, because she had been w ith him the entire night. A reasonable juror could determine from this evidence t hat McFarland was trying to minimize the imminent threat that Williams and Hender son faced. After the call, they did retur n to their own apartment. {¶ 36} Later that morning, a planned attack was executed. At some poi nt, tape was placed over Williams’s neighbors’ peepholes. Three pe ople lay in wait in a stairwell until Williams emerged from his apartment. As Will iams walked down the hallway outside his apartme nt, Motley and Young approached from behind. After Williams stopped and turne d, there was a brief altercatio n before Motley firedS UPREME C OURT OF O HIO

14 the gun. Less than ten seconds after Motley emerged from the s tairwell, Williams was shot. Motley testified that he called Brownlee and told hi m, “It’s done.” Not that the plan had spun out of cont rol or that there had been an accident; he merely reported, “It’s done.” {¶ 37} When Motley and his associates met with Brownlee after the murd er of Williams, McFarland was present again. In his testimony, Mo tley tried to
diminish McFarland’s involvement , and when faced with prior tes timony or prior written statements, he tried to back off from those that implic ated McFarland. For instance, regarding McFarland’s statement that “they” needed to be “f[—-]ed up,” Motley explained at trial that he understood that “they” really meant Henderson only, but the state pointed out that Motley had written “they” in his earlier statement. Motley also testified that he had been in contact w ith McFarland about the location of one of Brownlee’s firearms; however, in his wri tten statement, he had referred to it as one of “their” firearms. Motley eventual ly admitted in his trial testimony that he had received a text message from McFarland ab out “their” firearm. A juror could have easil y interpreted parts of Motley ’s testimony as trying to save McFarland from prosecution. The jury “may believe or d isbelieve any witness or accept part of what a witness says and reject the re st. In reaching its verdict, the jury should consider the demeanor of the witness a nd the manner in which he testifies, his connecti on or relationship with the pro secution or the defendant, and his interest, if any, in the outcome.” State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). {¶ 38} The meetings before and after the murder, the use of Brownlee a nd McFarland’s gun, the lying in w ait, the inclusion of Young and Raymond Motley as backup, the tape over peepholes, how quickly Motley fired th e shot after emerging from the stairwell, and the phone call reporting, “It’ s done,” all indicate prior calculation and design and that the assailants planned to cause the death of
Williams.January Term, 2020

15 {¶ 39} “ ‘Participation in criminal intent may be inferred from presen ce, companionship and conduct before and after the offense is commi tted.’ ” Johnson , 93 Ohio St.3d at 245, 754 N.E.2d 796, quoting Pruett , 28 Ohio App.2d at 34, 273
N.E.2d 884. McFarland was a consta nt presence as Williams and Henderson were identified as targets and as it was decided that something had to be done. She discussed with Motley that Williams would “have to be handled” and incited him to harm the informants. She did not seek to have Motley return the murder weapon before the murder, advised Brownlee not to discuss Williams ove r the jail telephone, and was present at the planning meeting and the post -murder meeting. McFarland assisted in the plan by attempting to assuage Henders on’s fears that she faced imminent danger from Brownlee. Finally, the drug-selling business she engaged in with Brownlee produced the payout to Motley. {¶ 40} We determine that after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could ha ve found that the essential elements of aggrav ated murder under R.C. 2903.01(A) h ad been proved beyond a reasonable doubt—McFarland purposely and with prior ca lculation and design caused the death of Williams or aided or abetted those w ho did by facilitating the commission of aggrav ated murder or by actively promoting it. She supported, assisted, encouraged, cooperated with , advised, and incited Brownlee and Motley in the planning and commission of the crime. {¶ 41} A rational trier of fact could ha ve also found McFarland guilty of aggravated murder through complicity by virtue of R.C. 2923.03( A)(1), by “solicit[ing] or procur[ing] another to commit the offense.” D uring her time selling drugs with Motley while Brownlee was in jail, she discussed wit h Motley the role
of Henderson and Williams in Brow nlee’s incarceration, and told him that “they” should be “f[—-]ed up.” She told Brownlee that she had discuss ed the matter with Motley and that Motley said that Williams would “have to be han dled.” She never sought from Motley a return of the gun that she shared with Bro wnlee. She wasS UPREME C OURT OF O HIO

16 present when the planning meeting occurred and was present for the postmortem meeting. A rational trier of fac t could have found that throug h her complicity in soliciting Motley to commit aggravated murder, she was guilty o f the purposeful killing of Williams with prior calculation and design. {¶ 42} A rational trier of fact also could have found McFarland guilty of being complicit in aggravated murder through R.C. 2923.03(A)(3) , which references the conspiracy statu te, considering a person complic it who conspires
with another to commit an offense in violation of R.C. 2923.01. Since conspiracy is a separate count, we disc uss it separately, below. Conspiracy {¶ 43} McFarland was charged with conspiracy to commit aggravated
murder or murder under R.C . 2923.01. The act of conspiring to commit a crime is a crime in and of itself; “it is no defense to a charge under t his section that no offense that was the object of the conspiracy was committed.” R .C. 2923.01(E). The conspiracy statute provides:

(A) No person, with purpose to commit or to promote or facilitate the commission of aggravated murder [or] murder, * * * shall do either of the following: (1) With another person or persons, plan or aid in planning the commission of any of the specified offenses; (2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any of the specified offenses. (B) No person shall be convicted of conspiracy unless a
substantial overt act in furthera nce of the conspiracy is alleg ed and proved to have been done by the accused or a person with whom t he accused conspired, subsequent to the accused’s entrance into th eJanuary Term, 2020

17 conspiracy. For purposes of this section, an overt act is subs tantial when it is of a character that manifests a purpose on the part of the actor that the object of the c onspiracy should be completed.

{¶ 44} Having determined above that the evidence was sufficient to pro ve that McFarland aided in planning or agreed that Motley would mu rder Williams, satisfying R.C. 2923.01(A), the ke y portion of the statute for purposes of this part of our analysis is R.C. 2923.01(B), the requirement of a substa ntial overt act in furtherance of the conspiracy. “An indictment for conspiracy * * * must allege some specific, substantial, overt act performed in furtherance of the conspiracy.”
State v. Childs , 88 Ohio St.3d 194, 724 N.E.2d 781 (2000), syllabus. {¶ 45} The state alleged three overt acts in the indictment supporting the conspiracy count: (1) solicitation of Motley for murder, (2) pr oviding or assisting Motley in procuring the firearm, and (3) threatening Williams a nd/or Henderson via a telecommunications system. {¶ 46} As discussed above in regard to the first alleged overt act, a juror could reasonably find beyond a reasonable doubt that McFarland solicited Motley
to commit murder. McFarland was the conduit for information be tween Brownlee and Motley, but she also was often with Motley while Brownlee w as in jail, and when she and Motley were discussing Henderson and Williams she told him that they needed to be harmed. McFarland told Brownlee in one jail call that she had spoken with Motley and that Motley said that Williams “had to b e handled.” McFarland knew that Motley had the gun that belonged to her and Brownlee and texted Motley concerning its whereabouts. She was at the meeti ng in which the determination was made to harm Williams, and she was there when the assailants and Brownlee met after the killing. The fact that Brownlee sol icited Motley for the
murder does not mean that McFarl and was not part of requesting and paying for Motley’s murder of Williams.S UPREME C OURT OF O HIO

18 {¶ 47} Regarding the second alleged overt act, there is sufficient evi dence to demonstrate that McFarland provided or assisted Motley in pr ocuring the gun. Motley referred to the murder weapon as “their” gun, meaning Br ownlee and McFarland’s gun. McFarland knew that Motley had retrieved the gun from the hotel Brownlee and McFarland had been staying in when they were arrested. Motley left it with Brownlee’s brother, Chris, but retrieved it later. McFarland did
not seek its return. There is no doubt that Brownlee and McFar land’s gun was the murder weapon. A rational trier of fact, after viewing the evi dence in a light most favorable to the prosecution, coul d have found that the essenti al elements of the conspiracy had been proved beyond a reasonable doubt, with the overt act being the provision of the gun to Motley. {¶ 48} The third alleged overt act was proved beyond a reasonable doub t. At trial, evidence was introduced of voicemail messages left by McFarland on Henderson’s phone after Brownlee’s arrest. On the voicemails, McFarland can be heard cursing at Henderson, telling her she knew what Williams and Henderson had done and using an accusatory tone. McFarland’s words were slurred, but the clear implication of the voicemails was that McFarland wanted t o hold Williams and Henderson responsible for Bro wnlee’s incarceration. She ca lled them snitches.
Given what was said and the circ umstances surrounding the calls , there would be
no reason for the voicemails other than to threaten Henderson a nd Williams. A reasonable juror could find that the voicemails were threatenin g. The calls “manifest[] a purpose on the part of the actor that the object of the conspiracy should be completed,” R.C. 2923.01( B). The statute requires th at the overt act occur after the accused entered into the conspiracy. The calls in question were placed in the early morning hours of October 27, 2015. A juror could conclude that the conspiracy was formed at the time of the October 25, 2015 j ail call involving Brownlee, Motley, and McFarland, when they first identified Wil liams and Henderson as the people respons ible for their arrests.January Term, 2020

19 {¶ 49} A rational trier of fact, after viewing the evidence in a light most favorable to the prosecution, coul d have found that the essenti al elements of the conspiracy had been proved beyond a reasonable doubt, with the overt act being the provision of the thr eatening voicemails. The other charges {¶ 50} McFarland was convicted of a ggravated burglary under R.C. 2911.11(A)(1), which provides:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separate ly occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpo se to commit in the structure or in the separately secured or separat ely occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another * * *.

A trespass under R.C. 2911.21(A) occurs when a person, without privilege to do so, “[k]nowingly enter[s] or remain[s] on the premises of anoth er.” It is no defense to a charge of trespass “that the land or premises involved was owned, controlled, or in custody of a public agency.” R.C. 2911.21(B). There was sufficient evidence that McFarland violated R.C. 2911.11(A)(1) through her complici ty with the Motley brothers and Young. Viewing the evidence in a light mos t favorable to the prosecution, a rational trier of fact could have found that the essential elements of aggravated burglary had been proved beyond a reasonable doubt—s pecifically, that through stealth or deception, th e three assailants entered Will iams’s apartment building and put on masks and gloves in order to harm Williams and laid in waitS UPREME C OURT OF O HIO

20 for him to emerge from his apartment, and when Williams did eme rge, Motley inflicted physical harm on Williams. McFarland was complicit i n the endeavor and therefore can be prosecuted under the aggravated-robbery statut e even though she was not in the apartme nt building when the murder occurred. {¶ 51} The remaining conviction was for kidnapping under R.C. 2905.01(A)(3), which states that “[n]o person by force [or] thr eat * * * shall * * * restrain the liberty of [another] person” for the purpose of “i nflict[ing] serious physical harm on the victim.” The jury had before it video sur veillance footage from the hallway outside Williams’s apartment. The footage rev eals Williams walking down the hallway and Motley and Young emerging from beh ind the stairwell door. Williams turns to see them walking toward him. He stops, and there is a confrontation before the shooting. A reasonable juror cou ld have determined
that Williams’s movements back t oward his own apartment were re strained by either threat of force or use of force by Motley and Young, for the purpose of inflicting bodily harm upon Williams . Viewing the evidence in a light most favorable to the state, a rati onal trier of fact could have fou nd that the evidence proved beyond a reasonable doubt t hat McFarland was guilty of c ommitting kidnapping due to her complicit y with Motley and Young.
CONCLUSION {¶ 52} Our duty in a sufficiency-of-the-evidence case is to determine whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact coul d have found that the essential elements of the crime had been proved beyond a reasonable doubt. McFarland was a cen tral figure in the killing of Robert Williams and a constant presence as Williams was targeted for revenge, as plans to kill him were made, and as the assailants met after his killing. She was in regular contact with Brownlee while he was in jail, reporting her suspicions about the role Williams and Henderson played in her and Brownlee’s arrests. She told Brownlee that Motley and others she had talk ed to thoughtJanuary Term, 2020

21 something had to be done about Williams and Henderson. She was in frequent contact with Motley while Brownlee was in jail and knew that he had the gun she shared with Brownlee, which would become the murder weapon. Wh en Brownlee got out of jail, she was present in the hotel room where the de tails of the plan against
Williams were hatched. And hours be fore the murder, she called Henderson and attempted to mislead her about the imminent threat posed by Bro wnlee. After the deed was done, Brownlee paid off Motley in drugs that were the product of the criminal enterprise he participat ed in with McFarland, and McFa rland was present again in the hotel room where all the participants in Williams’ s murder gathered
after-the-fact. {¶ 53} The record establishes that there was sufficient evidence on th e four counts for which McFarland was sentenced—aggravated murder, con spiracy, aggravated burglary, and kidnappi ng—for a rational trier of fac t to have determined
that the elements of those crime s had been proved beyond a reas onable doubt. Accordingly, we affirm the judg ment of the court of appeals. Judgment affirmed.

D E W INE , J., concurs.
D ORRIAN , J., concurs as to the convic tions for aggravated murder, aggravated burglary, and kidnapping.
O’C ONNOR , C.J., and F RENCH and F ISCHER , JJ., concur in judgment only.

D ONNELLY , J., dissents, with an opinion joined as to the conspiracy conviction by D ORRIAN , J.
J ULIA L. D ORRIAN , J., of the Tenth District Court of Appeals, sitting for
S TEWART , J.

_________________ D ONNELLY , J., dissenting. {¶ 54} When the United States Supreme Court set forth the sufficiency- ofthe-evidence analysis requiring reviewing courts to view the ev idence “in the lightS UPREME C OURT OF O HIO

22 most favorable to the prosecution” when determining whether the evidence presented is legally sufficient to support the conviction, Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), I do n ot believe the court meant a searchlight should be used to uphold a criminal convict ion. Yet, despite the lead opinion’s attempt to find evidence to sustain appellan t Sheila McFarland’s convictions, they have come up empty-handed. For the reasons t hat follow, I respectfully dissent.
TRIAL EVIDENCE {¶ 55} The lead opinion acknowledges th at McFarland was not present when Robert Williams was shot and killed as he exited his apart ment on November 14, 2015. It nevertheless maintains that there was sufficient evidence to support her convictions for conspiracy to commit murder and complicity in the associated crimes. To support affirming thes e convictions, the lead opini on relies on particular pieces of the state’s evidence while disregarding the uncontrov erted testimony of the state’s key witness. As I ex plain below, I do not believe that the evidence
establishes that McFarland had a ny participatory role in the cr imes unquestionably perpetrated by Eddie Brownlee, Ryan Motley, and Motley’s accomp lices. {¶ 56} I will start with the evidence that the lead opinion barely acknowledges: the trial testimony of Ryan Motley. As the lead opinion notes, Motley, known also by the nickname “Chop,” went to Williams’s a partment building with two confederates on the morning of November 14, 2 015, and shot Williams in the hallway of his apartment complex. Motley was i ndicted on all the same charges that were brought a gainst the other defendants, in cluding McFarland. {¶ 57} Rather than face trial, however, Motley agreed on October 5, 20 16, to plead guilty to amended Count 1, which reduced the charge of aggravated murder to murder, with the three-year gun specification for that charg e retained, and Count 3, which charged conspiracy to commit murder, with the three-ye ar gun specification for that charge de leted; all remain ing counts wer e dismissed. Further,January Term, 2020

23 Motley was immediately required to give a proffer statement in which he detailed what his testimony would be at th e trials of Brownlee and McFar land. If Motley’s testimony was not truthful and w as not consistent with other kn own facts, the state reserved the right to rescind the plea agreement and prosecute Motley on the offenses as charged. Motley thereafter entered guilty pleas as described and was sentenced to serve 18 years to life in prison. {¶ 58} Immediately after accepting Motley’s guilty pleas, the trial co urt asked Motley what happened on N ovember 14, 2015. In open court , Motley admitted that he had approached Williams with his gun drawn and had shot Williams as Williams appeared to be reaching for the gun. Motl ey disclosed that Brownlee told him to “rough [Williams] up” because of Williams’ s role in Brownlee’s then-recent arrest on drug charges. Motley acknowle dged that he had initially obtained the gun from a hotel room that Brownlee had occupied, although Brownlee was not present at the time. {¶ 59} Motley stated in his proffer that McFarland did not play any ro le in Motley’s retrieval of “the hammer,” i.e., the gun. Motley stat ed that he did not talk to McFarland about roughing up Williams or getting the gun. Mo tley said he had no contact with McFarland prior to the commission of the Novemb er 14, 2015
crimes. {¶ 60} Brownlee was convicted in October 2016 on all but Counts 1, 7, and 9. When McFarland’s case came on for jury trial in February 20 17, Motley was
called as a state’s witness and admitted to his role in murderi ng Robert Williams. Motley testified that the day after Brownlee and McFarland’s Oc tober 25, 2015 arrest on drug charges, he went without their knowledge to the Willoughby, Ohio, hotel that Brownlee had occupied in order to remove any drug-re lated evidence before the police discovered it, so as to protect Brownlee and McFarland from additional charges. Motley did not find any drugs but did find a gun under the mattress. Motley took the gun from the hotel and gave it to Br ownlee’s brother,S UPREME C OURT OF O HIO

24 but he retrieved it from him 48 hours later and thereafter kept it until the day of the
murder. {¶ 61} Motley testified that following Brownlee’s release from jail on November 10, 2015, and prior to t he November 14, 2015 shooting, he and Brownlee met at the Willoughby hotel and Brownlee told him what he wante d him to do. Motley described the hotel room as being a suite that had a liv ing area, a kitchen area, a bedroom, and a bathroom. Motley testified that McFarla nd was not in the area where the conversation between Brownlee and Motley occurre d but instead was in a different pa rt of the hotel room. {¶ 62} Motley testified that it was his decision to go to Williams’s apartment complex on the morning of November 14, 2015, with the gun. Later that day, Motley told Brownlee, “It’s done.” At some point on the e vening of the murder or the next day, Motley met with Brownlee at the Willoughby hot el, while
McFarland was in the hotel suite ’s bedroom with the door closed . Brownlee gave Motley drugs valued at approx imately $4,000 as an apparent rewa rd. {¶ 63} Motley testified that he acted at only Brownlee’s direction. H e testified that McFarland did not play any role in the plan to r etaliate against Williams. And he testified that McFarland did not play any rol e in his obtaining possession of the gun that he used to kill Williams. {¶ 64} I note here that despite having ex pressly reserved the right to rescind Motley’s plea agreement if his testimony was not truthful or co nsistent with other known facts, the state of Ohio d id not rescind the plea agreeme nt after Motley provided his proffer statem ent and trial testimony. {¶ 65} Given that Motley’s testimony appears to exculpate McFarland fr om the charges brought against her in this case, the lead opinion looks to other evidence that supposedly establishes McFarland’s complicity and conspira torial involvement
in these crimes. But even that other evidence does not demonst rate McFarland’s participation in the charged crimes.January Term, 2020

25 {¶ 66} In particular, the lead opinion relies on portions of the Octob er 25, 2015 jail call from Brownlee to McFarland in which they discuss ed their belief that Williams was a snitch and Brownlee ranted that he was going to “get him.” That hardly establishes McFarland’s complicity or conspiratorial inv olvement in plans
to commit murder. {¶ 67} The lead opinion says that during that same call, “McFarland brought Motley in on the call.” Lead opinion at ¶ 33. Specifi cally, the evidence
reflects that McFarland received the call while she was with Mo tley as a passenger
in his truck. After Brownlee learned that McFarland was with M otley, McFarland handed the phone to Motley, at which time Brownlee told Motley, “Chop, I need you to handle this.” Motley replied, “I already know.” Brownl ee added, “Chop, get [Williams], get those mother fuckers.” When their private conversation was concluded, Motley handed the phone back to McFarland. There is no evidence that McFarland heard anything that Brownlee said to Motley. {¶ 68} Later in that same call, Brown lee asked McFarland about “the hammer.” McFarland told Brownlee that Motley had already retri eved the gun and had given it to Brownlee’s brother. From this evidence, the le ad opinion says that
McFarland “made it clear that sh e had had prior conversations w ith Motley” about the gun. Lead opinion at ¶ 33. So what? Does an inquiry conc erning the whereabouts of a gun establish a conspiracy or complicity to co mmit murder? I would not have thought so before today’s decision. {¶ 69} Toward the end of that same call, Brownlee told McFarland: “Tel l Chop when I get out I’m going t o handle this.” Taken at face v alue, the implication was that no one should do anything until Brownlee was released from jail—at which time Brownlee, perhaps with Motley’s assistance, intended to handle the matter himself. That hardly inc ulpates McFarland in conspiracy or complicity to
commit murder.S UPREME C OURT OF O HIO

26 {¶ 70} The lead opinion gives undue if not talismanic significance to the fact that Motley, in the seven-pa ge statement he wrote on Octob er 16, 2015, referred to the gun as “their” gun. His trial testimony sought to correct that statement to reflect that the gun in fact was “his,” i.e., Brow nlee’s, gun and not “their” gun. In any case, is the offhand use of a personal pro noun in an unsworn
witness statement—with no s howing of foundati onal knowledge to even make such a declaration—conclusive proof of conspiracy or complicity to c ommit murder? {¶ 71} The lead opinion says that while McFarland worked with Motley t o sell drugs to finance Brownlee’s bail, “McFarland made clear to [Motley] that
Williams and Henderson had to be dealt wit h.” Lead opinion at ¶ 34. 2 Regardless of whether McFarland was angry with Williams and Henderson, the lead opinion cannot point to any evidence indi cating that she acted on that anger to cause harm to them. Motley flatly stated that he did not talk to McFarlan d about roughing up anyone and that she did not play any role in the planning of th e events that occurred on November 14, 2015. {¶ 72} The lead opinion further relies on a jail call between Brownlee and
McFarland in which McFarland said that Motley had said that Wil liams would “have to be handled.” Putting hearsay analysis aside, I fail t o see how that statement could inculpate McFarland in conspiracy and complicity to commi t murder. The
evidence was that Motley was the one who said that they would “have to be handled” and that McFarland merely relayed what Motley said to Brownlee. Nor do I interpret McFarland’s passi ve submission to Brownlee’s vol uble rantings as
some form of silent incitement or encou ragement to act. {¶ 73} Noting that “things moved quickly” once Brownlee was released from jail on November 10, 2015, the lead opinion says, “McFarla nd was in the hotel

2. The lead opinion makes repeated references to McFarland’s in volvement in drug dealings but neglects to acknowledge that McFarland was acquitted of all cha rges she faced in the drug trafficking case. See State v. McFarland , Cuyahoga C.P. No. CR-15-601477-B (May 22, 2017).January Term, 2020

27 room when Motley and Brownlee agreed that Motley would harm Wil liams.” Lead opinion at ¶ 35. But as noted previously, Motley testified tha t the hotel room was
a suite with different areas and that McFarland was not in the area where Brownlee and Motley had their conversation. In any case, proximity is n ot necessarily equal to presence. {¶ 74} There was no evidence to suggest that McFarland had any knowledge of Brownlee’s November 13, 2015 calls to Williams sta ting that Brownlee was out of jail and would be coming for Williams and H enderson and that they were going to “see their graves.” Henderson testifie d that McFarland was not one of the four unidentified pe ople who stood by their truc k in the apartment’s parking lot looking up at Williams ’ window as he started cussin g them out. {¶ 75} Henderson testified that she r eceived a telephone call from McFarland early on the morning of November 14, 2015, inquiring how they were doing. Henderson testified that McFarland had denied that Brow nlee had made any threatening calls to Henderson and Williams but that McFarland had ended the call when she saw Brownlee approaching. There is no evidence that e ither Brownlee or Motley were aware of McFarland’s call to Henderson or that i t had any effect on Motley’s actions. To infer that that phone call proves McFarla nd’s complicity in the murder scheme requires pure speculation and conjecture. I fail to see how this
evidence substantiates McFarla nd’s supposed involvement when no other evidence establishes her particip atory role in any plan. {¶ 76} As to the facts of the actual killing on November 14, 2015, the lead opinion does not identify any evid ence that shows McFarland’s i nvolvement in the
crime. {¶ 77} With regard to what it calls the postmortem meeting at the Willoughby hotel, the lead opinion says “McFarland was present again,” lead opinion at ¶ 37; however, the lead opinion once again ignores M otley’s uncontroverted testimony that McFa rland was in a different area —behind a closedS UPREME C OURT OF O HIO

28 bedroom door—while Brownlee and Motley completed their business . Indeed, the lead opinion takes liberties with the record when it describes a meeting with all the confederates taking place after the murder. In truth, the test imony on this was ambiguous at best. What is not ambiguous, however, is that the state’s star witness once again exculpated McFarland. While Motley was being questi oned about previous testimony elicited duri ng a prior trial, the following exchange occurred:

Q: All right. And do you remember testifying about the meeting where you met with Mr. Brownlee and Miss McFarland
after the murder? A: Can you repeat the question? Q: Do you remember the meeting with Mr. Brownlee and
Miss McFarland after the murder? A: Do I remember talking to them? Q: Well, do you remember tha t meeting, first of all?
A: Yes. Q: And was Eddie Brownlee and Sheila McFarland both present? A: When I had the meeting? Q: Yes. A: See, that’s why I want you to be more specific, because you’re saying having a meeting, like me and everybody is in her e right now, we’re talking, everybody can hear, it’s basically li ke we’re having a meeting. So basically I’m talking to you and I’ m talking to everybody else in th e courtroom. If she’s behind th at door right there, I don’t know if she can hear me or not. So she’s not present to the meeting.January Term, 2020

29 Q: Well, how about this. Why don’t you tell me what you meant by this testimony:
* * * Question: “Okay. And who was there when you met up with
him now the second time aft er the hotel room?”
Your answer was: “Who was with him?” Question: “Right. Who was with him.”
Answer: “Sheila.” Question: “All right. Him and Sheila in tandem. And who was with you?” Answer: “The same two parties, Rahkee and my brother Raymond.” Okay, Is that all true or not? A: Yes. But you’re still missing what I’m trying to say. She can be there, but listening to t he conversation is different.

Motley appears fixated on clarifying that McFarland was not pre sent. No followup clarifying questions were asked about the meeting or, in par ticular, the presence of the other assailants. So regar dless of what Motley said abo ut the accomplices’ presence in prior testimony—for which we have no context or und erstanding of the line of questioning—his testimony in McFarland’s trial did not expressly say that they were present at a meeting after the murder. {¶ 78} The lead opinion says this was sufficient evidence to convict McFarland of aggravated murder based on her aiding or abetting another in committing the offense, R.C. 2923.03(A)(2), or soliciting or pr ocuring another to commit the offense, R.C. 2923.03( A)(1). I cannot agree. {¶ 79} The lead opinion says McFarland “incited [Motley] to harm the informants.” Lead opinion at ¶ 39. How? I do not see how McF arland did anythingS UPREME C OURT OF O HIO

30 to cause Williams’s murder, either by aiding or abetting or by soliciting or procuring. {¶ 80} The lead opinion says McFarland did not ask Motley to return th e gun to her before the murder. Is that now proof of conspiracy and complicity to
commit murder? {¶ 81} The lead opinion says McFarland discouraged the irate Brownlee from discussing Williams on the jail telephone. Is that also p roof of conspiracy and complicity to commit murder? {¶ 82} Faced with Motley’s uncontrovert ed trial testimony that McFarla nd
had no involvement whatsoever in the plan of retaliation that B rownlee directed Motley to execute against Williams, the lead opinion says that the jury could disbelieve his testimony and conc lude that McFarland was involv ed. But under
State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by constitutional amendment on other grounds as stated in State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997), an appellate court’s duty is t o examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a rea sonable doubt. Id

. at paragraph two of the syllabus. Today’s lead opinion turns Jenks on its head by determining whether the evidence if disbelieved , would convince the average mind of the defendant’s guilt beyond a reasonable doubt. {¶ 83} In my view, there must first be evidence to substantiate the el ements of the offense before adverse inferences can be drawn from othe r evidence. Here, the evidence utterly failed to establish McFarland’s participat ory role in the crimes committed against Williams. Indeed, as to the specific charge of conspiracy, the evidence failed to show any overt act by McFarland to promote o r facilitate the commission of aggravated m urder or murder.January Term, 2020

31 CONCLUSION {¶ 84} It is surprising to me that this court accepted discretionary jurisdiction in this case only to end up affirming McFarland’s conviction. This case presents no novel issue of law. We are not establishing new la w or resolving conflicts in old law. Instead, t he lead opinion acknowledges t hat the question here is one routinely addressed by app ellate courts across the state . In that respect, this
case is unremarkable. {¶ 85} At the same time, I do believe that the case presents an issue of great public interest that the lead opinion ignores. Contrary to the lead opinion’s assertion that “the question we face does not concern the effect of a conviction based upon insufficient evidence, ” (emphasis sic) lead opinion at ¶ 22, I do not see how we can justly ignore the effect of such a conviction here—a sentence of life in prison without the possibility of parole. {¶ 86} This is a serious case involving the death of a man and the jus t punishment of those responsible f or the crime. The significant issues presented concern the proper use of circumstantial evidence and the reaso nable inferences that can be drawn from the testimony of witnesses in order to d etermine whether the evidence is legally sufficient to obtain a conviction such that its corresponding sentence is commensurate with the defendant’s criminal culpabil ity for the crime. {¶ 87} The legitimacy of the administration of criminal justice is und er scrutiny now perhaps more than ever. I believe that some of th e biggest threats to the public’s confidence in the justice system are wrongful conv ictions, disparate treatment, and sentences that are inconsistent w ith criminal cu lpability. {¶ 88} McFarland, believing there was no compelling evidence that supported the state’s i ndictments, chose to e xercise her consti tutional right to trial. Despite a paucity of evidence, McFarland was convicted. By exe rcising her constitutional right to trial, McFarland turned down a plea agr eement that could have resulted in a three-year pr ison sentence. While the jury was deliberating, theS UPREME C OURT OF O HIO

32 state again offered McFarland a plea deal, which she also turne d down. In my experience, this is a highly unusual step for the state to take after a case has been submitted to the jury. After her convictions, she ended up wit h the most severe sentence short of the death pen alty, while the individual who a ctually pulled the trigger and killed the victim in this case has the opportunity to be released in 18

years. {¶ 89} At sentencing the trial court stated:

And when there was a plea bargain offer just before trial, you rejected it. When there was a plea bargain offer when the jury was deliberat ing you rejected it because, apparently, your attorneys told me that yo u, quote, made your peace with God, closed quote. Well, now you have to make your peace with the state of Ohio. Okay?

The court proceeded to sentence her to a life sentence without the possibility of parole. {¶ 90} Sheila McFarland chose to place her trust in the criminal justi ce system, and it failed her, allowi ng a conviction to stand based not on evidence but on innuendo, speculation, and conjec ture. This court—provided with a final opportunity to remedy this injus tice—perpetuates the failure. I dissent.

D ORRIAN , J., concurs in the foregoing opinion as to the conspiracy
conviction.

_________________ Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van and Callista P lemel, Assistant Prosecuting Attorneys, f or appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Jeffrey M

. Gamso and Paul Kuzmins, Assistan t Public Defenders, for appella nt.

_________________