Opinion
No. 77-909
Decided August 16, 1978.
Criminal law — Aggravated murder — During commission of armed robbery — Purposeful intent to kill — Established, how.
Where the record in a prosecution for aggravated murder committed during the commission of an armed robbery established that the participants in the offense entered into a common design to commit the armed robbery by the use of force, violence and a deadly weapon and all the participants were aware that an inherently dangerous instrumentality was to be employed to accomplish the felonious purpose, a homicide occurring during the commission of the felony is a natural and probable consequence of the common plan which must be presumed to have been intended, and such evidence is sufficient to allow a jury to find a purposeful intent to kill. (Paragraph three of the syllabus in State v. Lockett, 49 Ohio St.2d 48, approved and followed.)
APPEAL from the Court of Appeals for Lake County.
On the morning of December 7, 1975, appellant, Jimmy Lee Clark, and a companion, Willie Jones, drove from Cuyahoga County to a gas station located just off Interstate 90 in Lake County. Upon their arrival the two men entered the gas station and confronted the attendant, Joseph H. Bradshaw, who was sitting on a stool in the front office. When Jones produced a handgun, Bradshaw reached into his pocket and gave Jones his money. Appellant and Jones then ordered Bradshaw back into the bay area of the gas station, where Bradshaw was made to lie on the floor while his coin changer and wallet were removed. Thereafter, appellant went into a back room and removed some coins from a money box. Following this, Jones marched Bradshaw into the back room, from which appellant heard the sound of two gunshots as he was exiting the back room. Appellant and Jones then departed in their vehicle, and soon afterward Bradshaw was discovered lying dead, face down in the back room, with bullet wounds in the head and neck.
On December 31, 1975, the Lake County Grand Jury returned an indictment charging both appellant and Jones with one count of aggravated murder with a specification, and with one count of aggravated robbery. After a series of pre-trial motions appellant's trial began on March 9, 1976. The jury returned a verdict of guilty on all charges on March 22, 1976.
A mitigation hearing was held on May 19, 1976, at the close of which the court found that a mitigating circumstance had been established. Appellant was thereupon sentenced to life imprisonment on the first count and 7 to 25 years on the second count, with the two terms to run consecutively.
On appeal, the Court of Appeals affirmed the trial court's judgment.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John E. Shoop, prosecuting attorney, Mr. David L. Lavinder and Mr. Gregory C. Sasse, for appellee.
Mr. Albert L. Purola and Mr. John Winthrop Ours, for appellant.
Appellant does not deny that he aided and abetted an aggravated robbery, but contests his conviction for the crime of aggravated murder, with the specification that the crime was committed duing the commission of an aggravated robbery.
In order to comprehend the foundation of appellant's argument three statutes must be examined, the first of which, R.C. 2903.01(B), is the aggravated murder statute under which appellant was charged as an aider and abettor. This section provides:
"No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary or escape."
The second statute is the complicity section, R.C. 2923.03, which reads in pertinent part:
"(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
"* * *
"(2) Aid or abet another in committing the offense."
The third statute is R.C. 2901.22(A), which defines the culpable mental state of purpose, as follows:
"A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature."
In view of the above-quoted sections appellant contends that to convict him of the crime of aggravated murder with the particular specification, it was necessary for the state to prove that he possessed the specific intention to kill, and that specific intent to kill may not be presumed as being the natural, reasonable and probable consequence of engaging in an aggravated robbery.
Appellant's position is in direct opposition to the majority holding of this court in State v. Lockett (1976), 49 Ohio St.2d 48, 58-62, a case in which the facts were parallel to the facts in the cause at bar. Our examination of the record in the instant cause establishes that appellant participated in the planning and commission of the robbery, and also acquiesced in the employment of a deadly weapon to accomplish this crime. Under these circumstances appellant must have realized that the victim's life would be endangered by the manner and means of performing the act conspired, and accordingly, appellant is bound by the consequences naturally resulting from the furtherance of the conspiracy to commit the aggravated robbery. We therefore hold that the jury had before it sufficient evidence from which to find that appellant possessed a purposeful intent to kill.
This issue was not resolved by the United States Supreme Court in its decision involving Lockett v. Ohio (1978), ___ U.S. ___, 57 L. Ed. 973.
The judgment of the Court of Appeals is hereby affirmed.
Judgment affirmed.
HERBERT, P. BROWN, SWEENEY and LOCHER, JJ., concur.
O'NEILL, C.J., and W. BROWN, J., concur in the judgment with regard to the conviction for aggravated robbery. State v. Lockett (1976), 49 Ohio St.2d 48.