[Cite as State v. Moore,
2014-Ohio-4471.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100786
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHARON R. MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573045-B
BEFORE: Kilbane, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 9, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brent C. Kirvel
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Sharon Moore (“Moore”), appeals her convictions. For
the reasons set forth below, we affirm.
{¶2} In April 2013, Moore and codefendant, Rachella Womack (“Womack”), were
charged in an eight-count indictment resulting from the death of Nadia Williams
(“Nadia”). Count 1 charged both of them with the involuntary manslaughter of Nadia,
while committing a felony. Count 2 charged both of them with the abduction of Gary
Williams (“Williams”), who was of no relation to Nadia. Count 3 charged both of them
with the assault of Williams. Counts 4 and 5 charged both of them with disorderly
conduct. Count 6 charged each of them with inducing panic. Count 7 charged both of
them with inciting to violence. Count 8 charged both of them with aggravated trespass.
{¶3} The matter proceeded to a jury trial, at which the following evidence was
adduced.1
{¶4} The incident was captured by surveillance video, which the jury was able to
view. The video shows a group of four females, later identified as Moore, Womack,
Notasha Williams, and the victim Nadia, entering the IHOP restaurant in Cleveland
Heights around 2:00 a.m., on March 30, 2013. Raymond Acosta (“Acosta”), an
employee at IHOP, testified that there was a disturbance in the ladies room shortly
thereafter. Williams, a deputy bailiff at Cleveland Municipal Court, was working as a
1 Priorto the start of trial, Womack retracted her plea of not guilty and
entered a guilty plea to involuntary manslaughter R.C. 2903.04(B), a felony in the
third-degree.
contract security guard for IHOP at the time. Williams testified that he asked the group
to leave because they continued to be loud after returning to their table from the ladies
room. The females started to argue with Williams as they were walking out. Moore
stated that she was going to go home and get her gun and come back and “kill all you
mother f*****s”. The fighting drew the attention of the other patrons in the restaurant.
{¶5} When they were in the vestibule, Moore turned back around and shouted
more profanities at Williams. Williams put his hands on Moore to escort her out.
Moore then grabbed him and the other three females started to attack him. Williams
tried to get the females outside of the restaurant. The surveillance video shows the four
females attacking Williams outside the restaurant. He tried to reenter the restaurant, but
the females pulled him back outside.
{¶6} Williams testified that Nadia kept brushing up against his gun. He
unholstered his gun to prevent her from taking it and told them to “back the f*** up.”
The video then depicts and Williams testified that Moore
just kept hanging on to me, kept hanging on to me, hitting me. [Nadia]
began to grab my hand, began to try to take my weapon from my hand. As
she began to take the weapon from my hand, I just tried to grip the gun as
hard as I could in my hand because I had [Moore] hanging on to me. So
she just kept hitting my hand, kept popping my hand, kept trying to knock
the gun out of my hand.
Williams continued to hold on to his weapon in his right hand, trying to secure it. Moore
would not let him go, so he used a specific hold to bring her down to the ground.
{¶7} At this point, Williams testified and the video depicts that he was on the
ground trying to restrain Moore when Nadia jumped on top of his back, trying to take
control of his gun. Then, the other two females appear to push Williams off of Moore,
which causes Nadia to fall backwards off of Williams. Williams fell onto his back, with
both of his arms going backwards. A shot then went off from Williams’s gun, striking
Nadia and tragically killing her. The three other females started running after the
gunshot. Moore came back into the IHOP and started knocking over items and throwing
items throughout the restaurant.
{¶8} Randall Walker (“Walker”), an employee of IHOP, testified he went outside
to intervene because he felt that Williams was in danger. When Walker went outside to
help Williams, he observed four females on top of Williams. Walker heard one of the
females say something regarding Williams’s gun. From Walker’s observations, Williams
was not using any outward force, but rather, trying to protect himself.
{¶9} Anthony Burton (“Burton”) happened to be driving by the IHOP as Williams
and the four females were fighting outside. He observed Williams holding one of the
females and the other three females hitting Williams. He heard one of them say “get his
gun, get his gun” after Williams had unholstered his weapon.
{¶10} Womack testified for the state. She testified that Williams asked them to
leave their table, and as he was escorting them out of the restaurant, he gave her a shove
and she blew it out of proportion. When Williams put his hands on her, she stated to him
that he “f****d up now” and she got in his face. At this point, Moore became involved
and began grabbing Williams. When Williams got them out of the restaurant, Womack
testified that they tried to charge at him. She thought that Williams pulled his gun out to
back them away. Despite this, the females continued to attack Williams and try to get the
gun from him. Womack testified that Moore was still fighting with Williams, even after
he unholstered his gun.
{¶11} At the end of the state’s case, Moore moved for acquittal under Crim.R. 29.
The trial court granted the motion with respect to Count 7 (inciting to violence). The
trial court then read the charge to the jury. Over objection by defense counsel, the trial
court instructed the jury on involuntary manslaughter, in violation of R.C. 2903.04(A),
and the lesser included offense of involuntary manslaughter, in violation of
R.C. 2903.04(B). The difference between the two offenses is that the more serious
charge requires the commission of a felony in connection with the victim’s death,
whereas the less serious charge requires the commission of a misdemeanor. The court
stated in pertinent part:
If you find that the State proved beyond a reasonable doubt each and every
one of the essential elements of the offense of involuntary manslaughter as
charged in Count 1 of the indictment, your verdict must be guilty according
to your findings. …
If you find the State failed to prove beyond a reasonable doubt any one or
more of the essential elements of the offense of involuntary manslaughter as
charged in Count 1 of the indictment, your verdict must be not guilty
according to your findings. …
If the evidence warrants it, you may find the defendant guilty of an offense
lesser than that charged in the indictment. However, notwithstanding this
right, it is your duty to accept the law as given to you by the Court, and if
the facts and the law warrant a conviction of the offense charged in the
indictment, namely, involuntary manslaughter, Revised Code Section
2903.04(A), then it is your duty to make such finding uninfluenced by your
power to find a lesser offense.
This provision is not designed to relieve you from the performance of an
unpleasant duty. It is included to prevent failure of justice if the evidence
fails to prove the original charge but does justify a verdict for the lesser
offense.
Lesser included offense, involuntary manslaughter, 2903.04(B). If you
find the State failed to prove beyond a reasonable doubt all the essential
elements of involuntary manslaughter, Revised Code Section 2903.04(A),
then your verdict must be not guilty of that offense. In that event, or if you
are unable to unanimously agree, you will continue your deliberations to
decide whether the State has proved beyond a reasonable doubt all the
essential elements of the lesser included offense of involuntary
manslaughter, Revised Code Section 2903.04(B). The offense of
Involuntary Manslaughter Subsection (A) is distinguished from Involuntary
Manslaughter Subsection (B) by the absence or failure to prove such death
was the proximate result of [Moore] committing or attempting to commit
the felony offense of inducing panic and/or abduction.
Before you can find the defendant guilty of involuntary manslaughter, Ohio
Revised Code Section 2903.04(B), you must find, beyond a reasonable
doubt, that on or about the 30th day of March, 2013, in Cuyahoga County,
Ohio, the defendant, [Moore], did cause the death of [Nadia] and such death
was the proximate result of [Moore] committing or attempting to commit
assault and/or disorderly conduct and/or aggravated trespass.
{¶12} The jury returned a verdict on October 15, 2013, finding Moore guilty of
involuntary manslaughter, while in the commission of a misdemeanor, in violation of
R.C. 2903.04(B), the lesser included offense under Count 1 of the indictment, assault
(Count 3), disorderly conduct (Count 4), disorderly conduct (Count 5), and aggravated
trespass (Count 8). The jury returned a verdict of not guilty of abduction (Count 2) and
of inducing panic (Count 6).
{¶13} The trial court sentenced Moore to nine months in prison on Count 1 and six
months in prison on Count 3. The court sentenced Moore to time served on Counts 4, 5,
and 8. The court ordered that the counts be served concurrently, for total sentence of 9
months in prison.
{¶14} Moore now appeals, raising the following three assignments of error for
review.
Assignment of Error One
The trial court committed error in its jury charge when, over objection by
the defense, it gave the jury the option of finding [Moore] guilty of
involuntary manslaughter in the commission of a misdemeanor.
Assignment of Error Two
The evidence was insufficient to support the guilty verdict on involuntary
manslaughter.
Assignment of Error Three
The guilty verdict on involuntary manslaughter was not supported by the
manifest weight of the evidence.
Jury Instructions
{¶15} In the first assignment of error, Moore argues the trial court erred when it
instructed the jury on the lesser included offense of involuntary manslaughter in the
commission of a misdemeanor, in violation of R.C. 2903.04(B).
{¶16} In Count 1 of the indictment, Moore was charged with involuntary
manslaughter in the commission of a felony (Count 2 — abduction and/or Count 6 —
inducing panic) in violation of R.C. 2903.04(A). This section provides that: “[n]o
person shall cause the death of another … as a proximate result of the offender’s
committing or attempting to commit a felony.” The jury found Moore not guilty of this
offense, and instead found her guilty of involuntary manslaughter in the commission of a
misdemeanor (Count 3 — assault and/or Count 8 — aggravated trespass) in violation of
R.C. 2903.04(B). This section states that: “[n]o person shall cause the death of another
… as a proximate result of the offender’s committing or attempting to commit a
misdemeanor[.]” Moore maintains that the court should not have instructed the jury on
this offense because they are two different offenses with two different felony levels.
{¶17} We note that a criminal defendant may be found guilty of a lesser included
offense even though the lesser offense was not separately charged in the indictment.
State v. Lytle, 49 Ohio St.3d 154, 157,
551 N.E.2d 950 (1990). Lesser included offenses
need not be separately charged in an indictment, because “when an indictment charges a
greater offense, it necessarily and simultaneously charges the defendant with lesser
included offenses as well.” State v. Smith,
121 Ohio St.3d 409,
2009-Ohio-787,
905
N.E.2d 151, ¶ 15, quoting
Lytle at 157. See also State v. Wine, Slip Opinion No.
2014-Ohio-3948, ¶ 18; State v. Evans,
122 Ohio St.3d 381,
2009-Ohio-2974,
911 N.E.2d
889, ¶ 8.
{¶18} The question of whether a particular offense should be submitted to the
finder of fact as a lesser included offense involves a two-tiered analysis. Evans at ¶ 13.
“The first tier, also called the ‘statutory-elements step,’ is a purely legal question, wherein
we determine whether one offense is generally a lesser included offense of the charged
offense.” State v. Deanda,
136 Ohio St.3d 18,
2013-Ohio-1722,
989 N.E.2d 986, ¶ 6,
citing State v. Kidder,
32 Ohio St.3d 279, 281,
513 N.E.2d 311 (1987). The second tier
looks to the evidence in a particular case and determines whether “‘a jury could
reasonably find the defendant not guilty of the charged offense, but could convict the
defendant of the lesser included offense.”’
Evans at ¶ 13, quoting Shaker Hts. v.
Mosely,
113 Ohio St.3d 329,
2007-Ohio-2072,
865 N.E.2d 859, ¶ 11. “Only in the
second tier of the analysis do the facts of a particular case become relevant.”
Deanda at
¶ 6.
{¶19} In determining whether an offense is a lesser included offense of another, a
court shall consider whether (1) “one offense carries a greater penalty than the other,”
(2) “some element of the greater offense is not required to prove commission of the lesser
offense,” and (3) “the greater offense as statutorily defined cannot be committed without
the lesser offense as statutorily defined also being committed.” Evans at paragraph two
of the syllabus, clarifying State v. Deem, 40 Ohio St.3d 205,
533 N.E.2d 294 (1988).
{¶20} After it has been determined that the offense is a lesser included offense, the
second tier mandates that courts look to the evidence in a particular case and determine
whether “‘a jury could reasonably find the defendant not guilty of the charged offense,
but could convict the defendant of the lesser included offense.’” Deanda at ¶ 6, quoting
Evans at ¶ 13. See also State v. Thomas,
40 Ohio St.3d 213, 216,
533 N.E.2d 286
(1988); Wine at ¶ 21, citing Thomas. Indeed, in the most recent jury instruction case on
lesser included offenses from the Ohio Supreme Court, Wine, the court reiterated that:
“[t]he trial court must give an instruction on a lesser included offense if under any
reasonable view of the evidence it is possible for the trier of fact to find the defendant not
guilty of the greater offense and guilty of the lesser offense.” Id. at ¶ 34.
{¶21} In reviewing the first tier of the analysis, we find that all three parts of the
Evans test are met. In analyzing the two offenses under the Deem test, the court in State
v. Shirk, 10th Dist. Franklin No. 97APA03-390, 1997 Ohio App. LEXIS 5060 (Nov. 4,
1997), stated that:
Based on [the Deem test], it is axiomatic that involuntary manslaughter,
under R.C. 2903.04(B), carries a lesser penalty than involuntary
manslaughter under R.C. 2903.04(A); involuntary manslaughter, under R.C.
2903.04(A), cannot ever be committed without the offense of involuntary
manslaughter under R.C. 2903.04(B) also being committed; and an element
of involuntary manslaughter, under R.C. 2903.04(A), is not required to
prove the commission of involuntary manslaughter under R.C. 2903.04(B).
Thus, involuntary manslaughter under R.C. 2903.04(B) is a lesser included
offense of involuntary manslaughter under R.C. 2903.04(A)[.]
Id. at *13-*14. See State v. Talley, 8th Dist. Cuyahoga No. 83237,
2004-Ohio-2846, ¶
63 (where this court found that involuntary manslaughter under R.C. 2903.04(B) is a
lesser included offense of involuntary manslaughter under R.C. 2903.04(A)). See also
State v. Turner, 2d Dist. Montgomery No. 18026,
2000 Ohio App. LEXIS 3487 (Aug. 4,
2000).
{¶22} With respect to the second tier, we look to the evidence in this case and
determine whether the“‘jury could reasonably find the defendant not guilty of the charged
offense, but could convict the defendant of the lesser included offense.”’ Evans at ¶ 13.
Here, it is reasonable for the jury to find that Moore proximately caused Nadia’s death
while committing a misdemeanor because the jury found her guilty of assault and
aggravated trespass (both misdemeanors) and not guilty of abduction and inducing panic
(both felonies). Therefore, a jury instruction on involuntary manslaughter in violation of
R.C. 2903.04(B) was proper.
{¶23} Accordingly, the first assignment of error is overruled.
Sufficiency of the Evidence
{¶24} In the second assignment of error, Moore argues there is insufficient
evidence to sustain her conviction for involuntary manslaughter because the State failed
to demonstrate that she proximately caused Nadia’s death.
{¶25} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266,
900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St.3d 380, 386,
1997-Ohio-52,
678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d
259,
574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560.
{¶26} Moore was convicted of involuntary manslaughter in violation of R.C.
2903.04(B), which provides that: “[n]o person shall cause the death of another … as a
proximate result of the offender’s committing or attempting to commit a misdemeanor[.]”
With regard to “cause” and “proximate cause/natural consequences” the court instructed
the jury that
[c]ause is an essential element of the offense. Cause is an act or failure to
act which in a natural, continuous and reasonably inevitable sequence
directly produces the death, and without which it would not have occurred.
Proximate cause/natural consequences. [Moore’s] responsibility is not
limited to the immediate or most obvious result of the [Moore’s] act or
failure to act. [Moore] is also responsible for the natural and foreseeable
consequences or results that follow, in the ordinary course of events, from
the act or failure to act.
Moore argues that no rational trier of fact could have found beyond a reasonable doubt
that Nadia’s death was a reasonably inevitable consequence of any criminal act she
performed or those with whom she may have been in concert with.
{¶27} A review of the testimony and the surveillance video depicts an altercation
between the four females and Williams. The altercation escalated as Williams escorted
them out of the restaurant. Williams told the females to “back up,” but they continued to
attack him. The females also attempted to get his gun when Nadia was fatally injured.
There was no evidence to refute the sequence of events that led to Nadia’s death.
Nadia’s death was a foreseeable consequence from the altercation with an armed security
guard that started inside the restaurant and then spilled outside. Therefore, after viewing
this evidence in a light most favorable to the state, we find that there is sufficient
evidence to sustain the involuntary manslaughter conviction.
{¶28} Accordingly, the second assignment of error is overruled.
Manifest Weight of the Evidence
{¶29} In the third assignment of error, Moore argues her involuntary manslaughter
conviction is against the manifest weight of the evidence. Moore argues that Nadia’s
death may have been foreseeable, but the jury lost its way in find that Nadia’s death was
reasonably inevitable.
{¶30} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.
92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390,
1997-Ohio-52,
678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson,
113 Ohio St.3d 382,
2007-Ohio-2202,
865 N.E.2d 1264, ¶ 25, stated:
[T]he reviewing court asks whose evidence is more persuasive — the
state’s or the defendant’s? … “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony. [Thompkins at
387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42,
102 S.Ct. 2211,
72
L.Ed.2d 652.
{¶31} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins at 387, quoting Martin, 20 Ohio App.3d
172,
485 N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for
“‘the exceptional case in which the evidence weighs heavily against the conviction.’”
Id., quoting Martin.
{¶32} In the instant case, the jury had the opportunity to watch the surveillance
video and listen to the witness testimony. The jury observed the females attacking
Williams outside of the restaurant and Williams try to protect his weapon. Nadia was on
top of Williams’s back when the other two females pushed Williams off of Moore. This
caused Nadia to fall backwards off of Williams. Williams fell onto his back, with both
of his arms going backwards, and a shot then went off from Williams’s gun, striking
Nadia and tragically killing her. Based on this evidence, we cannot say the jury clearly
“lost its way” and created such a manifest miscarriage of justice that Moore’s involuntary
manslaughter conviction must be reversed and a new trial ordered.
{¶33} Therefore, the third assignment of error is overruled.
{¶34} Accordingly, judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR
