The Akron Legal News

Brazen burglar ID'd by victims loses appeal

JESSICA SHAMBAUGH
Special to the Legal News
Published: June 24, 2014

In an opinion released recently, the 10th District Court of Appeals ruled that a trial court had sufficient evidence to convict a man on numerous charges after he broke into an apartment and threatened to kill its occupants.

Codey Elson was indicted on charges of aggravated burglary, aggravated robbery, robbery, kidnapping and felonious assault following a home invasion in December 2011.

At a jury trial in the Franklin County Court of Common Pleas, Shavonne Caudell and Lori Tuner testified they were home in their one-bedroom apartment on the night in question.

They explained that they left their front door open “maybe an inch or two” because the small apartment over-heated when they cooked dinner.

Around 10 p.m. the women said they were sitting on their couch watching television when two men “burst through the door.”

They later identified the first man to enter as Elson and said he had a gun and immediately started asking “Where’s your pills at? Where’s the money and the pills at?”

The women told the court Elson ordered the other man to stand guard over Caudell on the couch and then dragged Turner into the bedroom, cocked the gun and put it to the back of her head.

He then demanded her pills again. When Caudell tried to look into the bedroom to check on Turner, she said Elson told her not to look at him and threatened to kill her.

Turner indicated that she had several prescription medications in the home, which she took for various illnesses including COPD, asthma and sarcoidosis.

She later provided a receipt showing that she had just had a prescription for 120 oxycodone pills filled earlier that day.

After more threats, Turner told Elson that her pills were on the dresser and he walked her over to it with the gun still pointed at her head.

He then shoved the medications in his pockets and continued to threaten to kill Turner, striking her with the gun and demanding her money.

“Turner explained that she was ‘crying as hard as (she could) possibly cry at this point ...and I’m telling him, I don’t have any money,’” case summary stated.

Elson then went through her purse and found that she truly did not have any money. Still, he proceeded to unhook a flat-screen television in the bedroom and carried it to the living room.

The women said he set the TV down on a chair and tried to unhook their living room TV.

As he did that, they said the second man said “Codey, f*** it. Leave them something. Let’s just get the f*** out of here.”

The men told the women to wait 15 to 20 minutes before they did anything and left with the medication and the flat-screen TV.

The women waited and then fled the apartment to call the police.

The responding officer described them as “hysterical” but was able to get a description of the assailants.

They also told him that one of the men called the other “Codey.”

Both women later identified Elson in a photo array as the man wielding the gun. They also identified him in court.

In his own defense, Elson testified that he could not have committed the robbery because he was at a baby shower for his girlfriend, who was pregnant with his child.

He testified that the shower took place on the date in question and lasted from 4:30 to 10:30 p.m. His girlfriend, aunt and cousin all corroborated that testimony.

Nevertheless, the jury found him guilty of each crime charged and the trial court sentenced him to an aggregate prison term of 15 years.

On direct appeal, Elson assigned several propositions of law and first challenged the manifest weight and sufficiency of the evidence against him.

Upon review, the three-judge appellate panel noted that the defense’s theory in the case was misidentification.

However, they found ample evidence in the record which identified Elson as the offender.

Specifically, both victims identified Elson in a photo array and in court and Caudell stated that she was “100 percent sure” of her identification.

The victims also noted that the second man involved referred to the armed man as “Codey,” which is Elson’s first name.

“The evidence was sufficient to establish the crime of aggravated burglary as it established that defendant forced his way into the victims’ home while they were present, with the purpose to rob them of their property, while defendant had a firearm on his person and under his control,” Judge John Connor wrote for the court.

The judges further determined that the elements of robbery were proven because Elson brandished a weapon and threatened the women as he stole prescription pills and a television.

Similarly, the evidence supported kidnapping because he used force to drag Turner into the bedroom and forced Caudell to remain on the couch.

Because he used his weapon to strike Turner after taking the pills, his felonious assault conviction was also supported.

When reviewing the manifest weight of the evidence, the judges determined that the jury had to weigh the victims’ testimony against that of Elson and his family concerning his presence at the baby shower.

“The jurors were entitled to believe the victims’ testimonies identifying defendant as the perpetrator of the charged crimes, while disbelieving defendant’s evidence indicating that he was at a baby shower on the night the incident occurred,” Judge Connor continued.

Elson also argued that the prosecutor committed misconduct when he referenced the late date at which Elson filed his notice of alibi during closing arguments.

The appellate panel determined that the prosecutor did, in fact, improperly note that date and held that it did constitute misconduct.

However, they found the jury was instructed not to consider closing arguments as evidence.

“Reviewing the entire record, we conclude that the prosecutor’s reference during closing arguments, to the date defendant filed his notice of alibi did not deprive defendant of a fair trial,” Judge Connor stated, noting that the trial hinged on the credibility of the witnesses, not on the date he filed his notice of alibi.

Finally, Elson argued that the trial court erred during sentencing.

The appellate judges agreed with that reasoning after finding the oral advisement of sentencing differed from the sentencing entry and the written entry contained a sentence for felonious assault that was not discussed with Elson.

After affirming Elson’s convictions, Judge William Klatt and retired Judge Thomas Bryant joined Judge Connor to remand the case for resentencing.

The case is cited State v. Elson, case No. 13AP-554.

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