The Ninth District Court of Appeals has ruled that a man who was involved in the attempted exchange of a lost dog for a $500 reward was not guilty of coercion because the jury was not instructed on considering complicity, and the evidence showed the man did not directly participate in coercing the dog’s owners for the reward money.

Police arrested Pierre Cabell when he went to exchange a family’s pit-bull dog, “Papa Bear,” for a $500 reward. Cabell and another man, Gilbert Dickson, spoke multiple times with the family over the phone to exchange the dog for the reward money. Evidence showed that Dickson had threatened to harm the dog if the family didn’t give them the reward money.

Separately, Dickson was charged and convicted of obstructing official business, disorderly conduct, and coercion.

Cabell was charged with coercion, and he was convicted in a jury trial. An Akron Municipal Court judge sentenced Cabell to six months of probation and a fine for his role in the exchange. Cabell appealed his conviction arguing that the court had insufficient evidence that he was the primary offender because he didn’t threaten to harm the dog, Dickson did. Cabell also argued that because the court never gave the jury instructions about complicity, he could not be convicted of this charge. The appeals court agreed with both of these arguments.

In the Ninth District Court of Appeals unanimous decision, Judge Beth Whitmore wrote that the evidence did not support a conviction of coercion: “The State’s argument that there is sufficient circumstantial evidence of Cabell’s guilt is wholly inconsistent with its position at trial, which was, that Cabell was complicit. Further, there was no evidence that Cabell ever made a ‘direct threat’ or a ‘threat by innuendo.’”

Citing decisions from the Fourth and Seventh appellate districts, Judge Whitmore wrote that appeals courts cannot consider evidence of a defendant’s complicity in a criminal act if the jury was not instructed on complicity because to do so would violate the defendant’s Sixth Amendment right to a trial by jury.

“It is axiomatic that a defendant may not be convicted of a crime in a jury trial where the jury was not instructed on that crime,” Judge Whitmore wrote. “Although there was evidence that might have supported a theory of complicity, the State never requested a complicity instruction and the jury was never given one.  As such, the trial court’s judgment must be reversed and Cabell’s conviction for coercion must be vacated.”

Judges Eve Belfance and Carla Moore concurred in the November 20 opinion that remanded the case for further proceedings.

Akron v. Cabell, 2013-Ohio-5113
Opinion:  http://www.sconet.state.oh.us/rod/docs/pdf/9/2013/2013-ohio-5113.pdf
Criminal Appeal From: Akron Municipal Court
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: November 20, 2013

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