Youngstown Daily Legal News

Man who tried to rob clothing store loses appeal

ANNIE YAMSON
Special to the Legal News
Published: March 30, 2016

One of two brothers who participated in a thwarted attempt to rob a clothing store in Cleveland lost his appeal when the 8th District Court of Appeals recently reviewed his case.

Jordan Shepherd appealed from the judgment of the Cuyahoga County Court of Common Pleas where he was found guilty of felonious assault and having a weapon under disability under a theory of complicity.

Shepherd and his brother, Andraoss Shepherd, were both indicted by the Cuyahoga County Grand Jury on four counts of aggravated robbery, two counts of felonious assault and two counts of kidnapping after they attempted to rob Live Clothing in Cleveland on May 20, 2014.

Video surveillance showed the brothers entering the store while shielding their faces. The proprietor of the store and a sales associate were inside at the time.

At trial, the proprietor testified that he became suspicious of the brothers after they spent more than 30 minutes walking around the store, selecting only the most expensive items.

According to the store’s owner, the total cost of the items that the brothers selected was between $1,500 and $2,000 — a potential sale that he called “extremely rare” for a Tuesday morning outside of the holiday shopping season.

Concerned that the men were going to use a stolen credit card, the proprietor asked to see ID before the items were purchased.

The brothers then left the store, stating that they were going to an ATM machine, but they returned less than two minutes later.

At that point, the store owner noted that Andraoss was carrying what appeared to be a gun in his waist pocket and he asked the brothers to leave the store.

Court documents state that Andraoss then pulled the gun out and pointed it at the owner, saying, “You know what this is.”

The owner and Andraoss fought over the weapon while the sales associate retrieved his gun from behind the store’s counter.

When Shepherd saw that the sales associate had a gun trained on him and his brother, he “fell back” and pleaded with the employee not to shoot him. Eventually, Shepherd fled the establishment.

Andraoss also ultimately fled the store though he was pursued by the sales associate for a short distance.

After hearing the evidence, a jury found Shepherd guilty as an accomplice and the trial court sentenced him to six years in prison.

Shepherd’s appeal to the 8th District court challenged the sufficiency and manifest weight of the evidence supporting his convictions.

According to him, the state failed to meet its burden of producing sufficient evidence of a threat of physical harm beyond that of his brother simply pointing a weapon. The court of appeals’ three-judge panel disagreed.

“To support a conviction for felonious assault ... it is not necessary for the state to show that a defendant discharged his weapon in the course of committing the offense,” Judge Melody Stewart wrote on behalf of the appellate panel, “rather, the state can prove the element of attempt by showing that the defendant pointed his weapon at a victim while manifesting his intent to use the weapon.”

The court of appeals held that Andraoss’ action of pointing the weapon and stating “you know what this is” would cause a reasonable person to believe that he intended to use that weapon.

“Here, the jury could decide whether the statement was a threat that manifested an intent to use the weapon,” Stewart wrote. “Therefore, the state met its burden of producing sufficient evidence at trial to support the felonious assault.”

Shepherd also argued that the state failed to establish his role in the crime.

He contended that his brother acted independently and that he did nothing to encourage or assist him in committing the crime.

But the appellate panel pointed out that, while there was no direct evidence of Shepherd’s involvement, the record was “replete with circumstantial evidence” showing that the brothers were acting in concert until the store employees retaliated.

“Perhaps what is most important is what is missing from the evidence,” Stewart wrote, “That is, any indication that Shepherd withdrew himself from his brother’s actions when it was clear that his brother had a gun.”

Stewart noted that Shepherd showed no surprise when his brother pulled out his gun, nor did he tell the brother to put down his weapon or attempt to assist the store owner.

While Shepherd attempted to use his surrender and escape as evidence that he was not involved, the court of appeals saw his actions as those of self-preservation.

“Once the sales associate drew his gun on the men, Shepherd was willing to surrender himself rather than risk being shot,” Stewart wrote. “Accordingly, we find that evidence presented by the state supports Shepherd’s conviction for felonious assault.”

In light of the ample evidence that Shepherd aided and abetted his brother, the court of appeals also held that there was also enough evidence to convict him on the weapons charge, even though Shepherd did not actually brandish the weapon.

The court of appeals concluded by affirming the judgment of the Cuyahoga County court with Judges Sean Gallagher and Anita Laster Mays joining Stewart to form the majority.

The case is cited State v. Shepherd, 2016-Ohio-1119.

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