State v. Bradford, 2018-Ohio-1417, 2018-Ohio-1417, 2018 Ohio App. LEXIS 1560 (Ohio Ct. App. Apr. 12, 2018):

 [*1]  [**1]  Defendant-appellant Maurice L. Bradford ("appellant") appeals his bench trial convictions for two felonies of the third degree: shooting a firearm over a public road with gun specifications, and having a weapon while under disability. Appellant was sentenced to a prison term of four years and nine months.¹ We reverse the judgment of the trial court and vacate the convictions.

***

2. Discussion

 [*58]  [**58]  R.C. 2923.13(A)(3), having weapons while under disability, prohibits a person who

is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

 [*59]  [**59]  R.C. 2923.162(A)(3) provides that "[n]o person shall * * * [d]ischarge [***24]  a firearm upon or over a public road or highway." It is a strict liability offense. State v. Holloway, 8th Dist. Cuyahoga No. 101289, 2015-Ohio-4578, ¶ 16. According to the indictment, on or about July 3, 2015, appellant "did discharge a firearm upon or over a public highway and the violation created a substantial risk of physical harm to any person or caused serious physical harm to property." The charge included one-and three-year firearm specifications under R.C. 2941.141(A) and 2941.145(A), respectively.

 [*60]  [**60]  The state relied on cases by this court standing for the premise that everyone engaged in a "shoot-out" is responsible for injuries. State v. Spates, 8th Dist. Cuyahoga No. 100933, 2015-Ohio-1014; State v. Catron, 8th Dist. Cuyahoga No. 101789, 2015-Ohio-2697; and State v. Hoston, 8th Dist. Cuyahoga No. 102730, 2015-Ohio-5422. However, the trial court focused on the theory of complicity in reaching the decision in this case. We note that there were no codefendants in this case and the express charges did not include complicity, aiding, or abetting.

 [*61]  [**61]  A complicity charge may be stated by statute or in terms of the principal offense:

"Pursuant to R.C. 2923.03(F), a charge of complicity may be stated in terms of R.C. 2923.03 or in terms of the principal offense. State v. Caldwell, 19 Ohio App.3d 104, 483 N.E.2d 187 ([8th Dist.]1984). Where one is charged in terms of the principal offense, he or she is on notice, by operation of R.C. 2923.03(F), that evidence could be presented that the defendant was either a principal or an aider and abettor for that offense. See State v. Dotson, 35 Ohio App.3d 135, 520 N.E.2d 240 (1987). Because [***25]  a charge of complicity may be stated in terms of either the principal offense or in terms of R.C. 2923.03, the complicity section, the indictment was not amended when the court instructed the jury that they could find Johnson guilty under the complicity theory."

State v. Smith, 8th Dist. Cuyahoga No. 86690, 2006-Ohio-3156, ¶ 65, quoting State v. Johnson, 8th Dist. Cuyahoga Nos. 81692 and 81963, 2003-Ohio-3241.

 [*62]  [**62]  The complicity statute provides in part:

(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;

(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.

(B) It is no defense to a charge under this section that no person with whom the accused was in complicity has been convicted as a principal offender

* * *

(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.

R.C. 2923.03.

 [*63]  [**63]  In order for complicity to be considered, there must be "sufficient [***26]  evidence in the record to establish complicity." Smith at ¶ 66, citing State v Woods, 48 Ohio App.3d 1, 548 N.E.2d 954 (5th Dist.1988). The trial court stated here that:

Clearly shots were fired. I find that the state proved, beyond a reasonable doubt, that Mr. Bradford was involved. His vehicle was identified. There was a lot of telephonic activity at or about the time that this occurred. That activity was on a telephone ultimately — cell phone ultimately recovered from the person of Mr. Bradford.

(Tr. 1483.)

 [*64]  [**64]  For verification of shots fired attributable to appellant by complicity, aiding, or abetting, the trial court gave great deference to the testimony of Friedman, who the trial court stated "had nothing to gain from his testimony." (Tr. 1483.) Friedman testified that shots were fired from the back seat of the Charger as it proceeded down East 92nd Street. The trial court acknowledged that, in appellant's favor, the testimony also established a "higher aggression on the part of the other automobile that was firing" at appellant's vehicle. (Tr. 1483.)

 [*65]  [**65]  The court noted that Friedman "suggested there may have been, or must have been more than one person in Mr. Bradford's vehicle." (Tr. 1483.) As a result, the trial court concluded "[n]evertheless, [***27]  even if Mr. Bradford was not himself firing the weapon, under the theory of complicity he would be liable for the consequences of his actions." (Tr. 1483.)

 [*66]  [**66]  We review Friedman's testimony and related exhibits. Friedman was attending a barbeque at his friend Andre's house. He arrived at approximately 5:30 p.m., and the shooting took place at approximately 9 p.m. that evening.

 [*67]  [**67]  A substantial amount of testimony focused on the distances involved, characteristics of the street, houses, lots, and intersections. Reference is repeatedly made to a computer screen depicting these key facts, though they do not appear to be accessible to this court on review. This evidence was clearly relied on in the trial court's determination as the record reflects a number of questions regarding distance and proximity during Friedman's testimony, the witness whose testimony the trial court determined to be most persuasive.

 [*68]  [**68]  "Generally, an appellate court may take judicial notice of any fact of which the trial court could have taken notice, even where the trial court failed to do so." Twinsburg v. Wesby, 9th Dist. Summit No. 25813, 2012-Ohio-569, ¶ 5, citing Day v. Day, 40 Ohio App.3d 155, 160, 532 N.E.2d 201, fn. 4 (10th Dist.1988).

 [*69]  [**69]  An appellate court has authority to take judicial notice regarding the characteristics of the streets of the jurisdiction. [***28]  State v. Thomas, 11th Dist. Lake No. 92-L-020, 1993 Ohio App. LEXIS 28, 7, fn. 2 (Jan. 8, 1993), citing Day at fn. 4, Orose v. Hodge Drive-It-Yourself Co., Inc., 132 Ohio St. 607, 9 N.E.2d 671 (1937); and Bonbright v. Biller, 67 Ohio App. 421, 421, 36 N.E.2d 173 (1st Dist.1941). "[W]e take judicial notice of a Google map and satellite image as a 'source[ ] whose accuracy cannot reasonably be questioned.'" Pahls v. Thomas, 718 F.3d 1210, 1216, fn. 1 (10th Cir.2013), quoting United States v. Perea-Rey, 680 F.3d 1179, 1182, fn. 1 (9th Cir. 2012) (second alteration in original) (quoting Fed.R.Evid. 201(b)); see Citizens for Peace in Space v. Colorado Springs, 477 F.3d 1212, 1218, fn. 2 (10th Cir. 2007) (taking judicial notice of an online distance calculation that relied on Google Maps data).

 [*70]  [**70]  "'Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial * * *.'" Id., quoting United States v. Piggie, 622 F.2d 486, 488 (10th Cir.1980). "See also David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39 Colo. Law. 19, 24 (2010) ('Most courts are willing to take judicial notice of geographical facts and distances from private commercial websites such as MapQuest, Google Maps, and Google Earth.')." Pahls at id.

 [*71]  [**71]  "The Court may take judicial notice of Google Maps to determine distances and locations." Mitchell v. TVA, E.D.Tenn. No. 3:14-CV-360-TAV-HBG, 2015 U.S. Dist. LEXIS 56527, 2-3, fn. 1 (Apr. 30, 2015), citing Cloe v. Indianapolis, 712 F.3d 1171, 1177, fn. 3 (7th Cir.2013); Eden Isle Marina, Inc. v United States, 113 Fed. Cl. 372, 471, fn. 138 (2013), and Ryan v. TVA, E.D.Tenn. No. 3:14-CV-356-TAV-HBG, 2015 U.S. Dist. LEXIS 56521, 2, fn. 1 (Apr. 30, 2015).

 [*72]  [**72]  This court has also recognized the efficacy of Google Maps:

Similarly, Google Maps, and other satellite imaging programs, are generally considered to provide accurate and reliable measurements. In today's technologically savvy society, satellite imaging programs [***29]  are used on a daily basis, and testimony concerning the use and output of such programs does not require information beyond the knowledge or experience possessed by most lay persons.

Dickerson v. Miller's TLC, Inc., 8th Dist. Cuyahoga No. 96995, 2012-Ohio-2493, ¶ 17.

 [*73]  [**73]  We therefore elect to employ Google Maps to take judicial notice of the East 92nd Street and Superior area pursuant to Evid.R. 201, which allows this court to take judicial notice regarding certain adjudicative facts:

The Staff Notes to Evid.R. 201 provide that the rule, "in its entirety, reflects existing Ohio practice and, except for the added clarifying language to subdivision (A) which is not intended to result in a contrary construction, is identical to Federal Evidence Rule 201." 1980 Staff Note, Evid.R. 201. The Advisory Committee Notes to Fed.R.Evid. 201 explain, "The usual method of establishing adjudicative facts is through the introduction of evidence, ordinarily consisting of the testimony of witnesses. If particular facts are outside the area of reasonable controversy, this process is dispensed with as unnecessary. A high degree of indisputability is the essential prerequisite." In accordance, a "judge may inform himself as to the facts of geography, such as the navigable character of a river, the distance between two points, or the location of a given place within the jurisdiction [***30]  by resort to * * * public documents, maps, etc."

(Emphasis added.) Wesby, 9th Dist. Summit No. 25813, 2012-Ohio-569, at ¶ 7, quoting State v. Burkhalter, 6th Dist. Lucas No. L-05-1111, 2006-Ohio-1623, ¶ 18, quoting State v. Scott, 3 Ohio App.2d 239, 243, 210 N.E.2d 289 (7th Dist.1965).

 [*74]  [**74]  Using the satellite layer and distance measurement feature of Google Maps, Friedman's location was 889.63 feet from the corner of East 92nd and Superior, over 296.54 yards or more than the length of two and one-half football fields at 120 yards each. (See map attached as Appendix A to this opinion.)⁶ In addition to the approximately 12 houses, there are several vacant lots and trees. There is also a commercial building at the southwest corner of Superior. The barbeque activities were being held in the side lot on the southerly side of Andre's house, adjacent to Shipherd Avenue where the Charger ultimately turned right off of East 92nd Street.

 [*75]  [**75]  From the front steps of Andre's house by the sidewalk at 9:00 p.m., almost 300 yards (889.63 feet) down the street, Friedman saw a car chase involving a dark sedan and a Charger at the intersection of Superior and East 92nd Street. The dark sedan was shooting at the Charger, and the Charger turned right onto East 92nd Street. "The other car that was shooting at [the Charger], they shot and they kept going [on Superior]. The guy in the Dodge Charger, he [***31]  appeared to just be trying to get away." (Emphasis added.) (Tr. 940.)

 [*76]  [**76]  "I mean, listen to me. There's a tree right in front of the house, the limbs on that tree was falling off because of what they were shooting." Friedman also added that "bullets were whizzing across our heads." Friedman told the other barbeque guests "[e]verybody get down. * * * That's the first time in my life I ever had bullets whiz across the top of my head." (Tr. 952-953.)

 [*77]  [**77]  The Charger was "[b]etween the corner [at Superior Avenue], and let's say that first house, from the corner," about 10 houses and several lots away, when Friedman saw a single "hand held out" of the back passenger window shooting a gun. The Charger "was trying to basically defend himself." (Tr. 941.) Friedman said he saw a hand shoot "a few times" back at the car that was returning fire." (Tr. 941.) Later, Friedman "assum[ed] half dozen maybe" shots were fired from the Charger instead of a few. (Tr. 947.)

 [*78]  [**78]  Friedman estimated that the occupants in the dark sedan on Superior shot at least 40 times, though he "couldn't see them because, you know, distance, but they took on just the, you know, image of cowboys, if you will. They were hanging out [***32]  like windows [as] they were shooting." (Tr. 948.) The ballistics evidence was that the only shell casings found at the scene were at the intersection of East 92nd Street and Superior Avenue, and all of them were sourced to the same individual.

 [*79]  [**79]  Though the dark sedan "shot and they kept going," Friedman could see that one of the sedan shooters had a "decent size long gun." (Tr. 940, 954.) Also from that distance, he could see the single hand, holding a "small handgun" out of the Charger's back passenger window. "It was just a bang, bang, bang, bang and let's get out of here." (Tr. 955.)

 [*80]  [**80]  Friedman then began walking north on East 92nd Street to see if anyone was injured since a number of people were outside when the shooting occurred. The Dodge Charger drove quickly past him and "wasn't menacing or anything like that. We couldn't see him. He was trying to get away." (Tr. 943.)

 [*81]  [**81]  Friedman's 911 call was brief, reporting a shooting and injuries. He stated his belief that two people had been shot, then said that a child had been shot in the hand and identified the child's location. During the call, Friedman attributed the shooting to a Dodge Charger but did not mention the sedan at all.

 [*82]  [**82]  Friedman [***33]  could not see anyone in the Charger, but he "assumed that [there] was a driver, [and] unless the driver was Stretch Armstrong, [there] had to be a second person in the car." (Tr. 947.) He could see "[n]o shadows" when the Charger passed. (Tr. 948.) The windows were darkly tinted, and it was getting dark outside. "[B]y the time [the Charger] got to me, everybody in the car was laying down." (Tr. 955.)

 [*83]  [**83]  Friedman estimated the Charger's speed at 35 to 40 mph as it first made the right hand turn onto the street, then it accelerated but slowed down as it approached to make the right turn at Shipherd. Even with Friedman's distance from the actual shooting, the speed of the vehicle, number of shots being fired, the description of bullets whistling past him, distractions and ensuing darkness, Friedman testified to detailed observation about a single hand. "I'm going to tell you from the mere sound of it, the guys who were on Superior, they had way more guns." (Tr. 952.) "That's the first time in my life I ever had bullets whiz across the top of my head." (Tr. 953.)

 [*84]  [**84]  The ballistic evidence proved that the gun that shot E.J. on July 3, 2015, was listed in several NIBIN reports, including the shooting [***34]  of appellant on May 17, 2015, and the drive-by shooting and firebombing of appellant's residence. The gun was recovered from Williams of the Broadway gang.

 [*85]  [**85]  In addition to the hand-out-of-the-back-passenger-window-from-almost-300-yards-away-past-trees-and-shr ubs-with-bullets-whizzing-overhead-at-9:00 p.m. testimony, the trial court noted that the cell phone tower activity map indicated that appellant's cell phone and the Dodge Charger were at Superior at the time of the incident. Cell tower activity evidence has been permitted in Ohio to indicate that a cell phone was connected to a certain tower at a certain time.

 [*86]  [**86]  Typically, cell phone tower mapping by a lay person permits an inference to be drawn by the factfinder that the cell phone owner was in the area at the listed time, to corroborate other evidence of the defendant's presence at a crime scene. See, e.g., State v. Wilson, 8th Dist. Cuyahoga No. 104333, 2017-Ohio-2980 (defendant identified as shooter by victim who knew defendant and ballistic evidence present); State v. Daniel, 2016-Ohio-5231, 57 N.E.3d 1203 (8th Dist.) (Charges included three brutal rapes of three victims. Defendant was found guilty of most charges and pleaded guilty to rape and related charges of one victim); Dunn, 8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138 (defendant knew the victim, identification testimony was offered, [***35]  and guilt inferences about cell phone evidence comments by the state during closing arguments were not assigned as reviewable error).

 [*87]  [**87]  We reiterated in Wilson, which followed our decision in Daniel⁷ (adopting a line of federal case law), that the "'potential problems with estimating a cell phone's location based on phone records' goes to the weight of the cellular testimony not its reliability." Wilson at ¶ 33, quoting Daniel at ¶ 70. In the instant case, there is a Charger, a cell phone map, a single individual reporting a hand shooting from a rear passenger window from an appreciable distance at 9:00 p.m., with bullets flying overhead and no identification of a single person, or the number of individuals, in the Charger.

 [*88]  [**88]  Appellant argued during trial, and advised the trial court prior to sentencing, that he never owned a gun and did not like guns. The more than 800 social media posts of appellant reflected no gang activity whatsoever, only family activities with his children and brother Larry.

 [*89]  [**89]  Booker, admittedly part of Fleet, testified that he "hung out" with Bradley and other members of Fleet but that appellant did not hang out in the streets with them. Appellant was "different [***36]  than the other ones." (Tr. 584.) Appellant was never involved in discussions about shooting or retaliating, and spent most of his time with his children and caring for Larry. Booker never knew appellant to use guns or talk about having guns. (Tr. 668-669.)

 [*90]  [**90]  No weapons were attributed to appellant in either case before the trial court. No bullet casings were traced to appellant. In fact, in spite of Friedman's testimony that there were guys hanging out of the sedan windows shooting at least 40 times, though they shot and kept going, the only ballistic evidence was located at the corner of Superior and East 92nd Street and traced back to Williams. The evidence supports the presence of an automobile and a cell phone, but not of specific individuals.

 [*91]  [**91]  The trial court heard three weeks of testimony by numerous witnesses in the consolidated bench trial. Much of the evidence related to charges that did not involve appellant or where appellant was actually the victim. In the Gang Case, the trial court specifically rejected the state's position that appellant was engaged in gang activity and he was exonerated of all charges.

 [*92]  [**92]  It is true that where a principle's identity is not an element of a [***37]  crime, the state is not required to establish the principal's identity to convict an offender of complicity. In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, ¶ 13:

Rather, "[to] support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal." State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. Such criminal intent can be inferred from the presence, companionship, and conduct of the defendant before and after the offense is committed. Id. at 245.

Id.

 [*93]  [**93]  Even in light of the strict liability status of R.C. 2923.162(A)(3), unlike the instant case, the disputed facts in T.K. did not involve the presence of the (1) defendant, (2) principal, or (3) gun. We also consider whether appellant "supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime." Id. This is particularly challenging where there is a question of whether the appellant was even present.

 [*94]  [**94]  Under a sufficiency analysis, we consider whether the trial court's belief of the evidence would support a finding of the essential elements of a crime proven beyond a reasonable [***38]  doubt. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. The evidence supports the presence of the Charger, but no evidence supports that appellant was in the Charger. The cell phone tower evidence allowed an inference that the cell phone was in certain geographical areas, but did not prove that appellant was in possession of the cell phone at that time.

 [*95]  [**95]  The state offered that the cell phone photographs allegedly taken, or modified, or accessed, on the morning of July 3, 2015, demonstrated possession. That evidence does not prove who took the photographs or whether, assuming they were taken by appellant, the cell phone was in appellant's presence that night.

 [*96]  [**96]  Neal was the registered owner of the Charger, as she was for the SUV driven by another son that she forfeited as part of her plea. There is no evidence that appellant had sole access to the Charger. Based on the record, the family members, including Bradley and Black, had access to the vehicles owned by Neal, such as the black SUV forfeited by Neal in the Gang Case.

 [*97]  [**97]  The trial court determined in the Gang Case that the evidence "did not establish, beyond a reasonable doubt, that Maurice Bradford was a participant in the criminal gang. The state's own witnesses suggested otherwise." [***39]  (Tr. 1488.) As a result, the trial court concluded that "Mr. Maurice Bradford is not guilty" of participating in a criminal gang. Id.

 [*98]  [**98]  The trial court impressively handled a daunting task, involving three weeks of testimony from 20 witnesses, several who testified under plea agreements. The trial court deftly entertained hundreds of exhibits and adjudicated numerous evidentiary objections involving two consolidated cases with multiple defendants in one case, one of whom was also the sole defendant in the other.

 [*99]  [**99]  We find that even when viewed in a light most favorable to the prosecution, the evidence is insufficient as a matter of law to support the verdict in this case. Accepting that the Charger and a cell phone were present at Superior and the sole witness saw a single hand shoot a small gun from a back seat car window from a block away at 9:00 p.m. in the midst of the melee described by Friedman, the evidence is insufficient to support the presence of appellant at Superior, which subsumes the theories of complicity, aiding, and abetting. This analysis also serves to reverse the finding on the charge of having a weapon while under disability 2923.13(A)(3).

 [*100]  [**100]  In addition to sufficiency, [***40]  choosing to further address the manifest weight issue, the analysis set forth herein also serves as the foundation of our finding that, sitting as a thirteenth juror and considering whether the "greater amount of credible evidence" supports the conviction, the verdict is against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.

 [*101]  [**101]  Coupled with the evidence underlying our finding of insufficiency, the trial court acknowledged that the weight of the evidence supported: (1) Broadway was the aggressor at Superior, (2) the state failed to demonstrate that appellant was involved with gang activities, (3) appellant was not known to carry a gun, hang out with gang members, or to engage in discussions of gang retaliation for shootings by Broadway, even after he was shot, all as supported by the state's own witness and evidence, and (4) that the cell mapping, which goes to the weight of the evidence, does not demonstrate that appellant was personally present at Superior.

***

 

---

¹ The sentence included a concurrent six-month sentence related to State v. Bradford, Cuyahoga C.P. No. CR-14-584927, for a fifth-degree felony, discussed briefly herein.

⁶ "An appendix to our opinion contains a helpful map of the site. The parties unfortunately did not provide us a map." Pahls, 718 F.3d 1210, 1216, fn. 1. "We do this here only to determine the 'general location' of relevant events." Id., citing United States v. Perea-Rey, 680 F.3d 1179, 1182, fn. 1 (9th Cir.2012). "The map in the appendix" is "based on Google Maps' 'Distance Measurement Tool.'" Id., comparing Citizens for Peace in Space v. Colorado Springs, 477 F.3d 1212, 1218, fn. 2 (10th Cir.2007).

⁷ Det. Wiles also provided the cell phone tower mapping evidence in Daniel.