COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59267 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ARTIS TUCKER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-239,800 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor MELODY A. WHITE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: REGIS C. McGANN Attorney at Law 450 Standard Building Cleveland, Ohio 44113 - 2 - FRANCIS E. SWEENEY, J.: After a jury trial, defendant-appellant, Artis Tucker, was found guilty of aggravated murder (R.C. 2903.01). Appellant now timely appeals his conviction. For the following reasons, we affirm the appellant's conviction. The pertinent evidence adduced at trial is as follows: On May 16, 1989, the victim, Clementine Gofan, was found dead in her home at 866 East 130th Street between 11:30 a.m. and 12:00 noon. Detective Gregory Kunz, a Cleveland Police Homicide Detective, testified the victim was found lying on her stomach with her hands bound behind her back by a metal chain determined to be a dog leash. A cord from a vacuum cleaner was wrapped around her wrists and down to her ankles. The entire house was very dirty, and it did not appear that the kitchen floor or dining room floor had been swept recently. Two dogs were found in the basement. The only sign of a struggle was that a blanket appeared to have been pulled from the couch onto the floor and that her feet were resting on the blanket as though she may have been initially on the couch and then pulled to the floor. The victim's sixteen-year-old daughter, Marguise Gofan, testified she was pregnant with appellant's child at the time of her mother's murder. Appellant moved in with Marguise after she - 2 - became pregnant and had been living at the victim's home for a few months. Marguise testified her mother was not upset she was pregnant and gave Marguise no problem about appellant's being unemployed and living there. Marguise stated she still had a relationship with appellant and loved him. Marguise testified her mother arrived home from work shortly before midnight on May 15, 1989. Her mother then went to a store and purchased beer and wine. When her mother returned home, Marguise sat on the couch and watched appellant and her mom clean the dining room. The appellant and her mom were laughing and joking around while sweeping the floor and picking up stuff. The appellant went to bed around 4:30 a.m., and her mom fell asleep on the couch. Appellant slept only in his underwear. Marguise got up between 6:00 and 6:15 a.m. and came downstairs around 6:30 a.m. Her mom was cooking hot dogs and ate at least one with white bread and Cheez Whiz. Her mother was sitting on the couch while eating. Marguise left the house at approximately 7:01 a.m. to go to school. Appellant was still asleep upstairs when she left. Willie Stokes testified he went to the victim's home between 11:30 a.m. and 12:00 noon to borrow money. He had known the victim for five or six years and had ended a relationship with her about two years prior to her murder. Mr. Stokes continued to visit the victim after the relationship ended to borrow money or - 3 - to ask her to cash a check for him. While she sometimes had no money to give him, she would always cash a check for him. On May 16, 1989, Mr. Stokes took his wife to work around 8:00 a.m. He then went to the corner to split a pint of wine with his friend "Argo," and they went to three or four places to borrow money. At approximately 11:30 a.m. to 12:00 noon, he went to the victim's home. The door was open, and he walked in and discovered her body. He left the house, and Argo told him not to call anyone. Mr. Stokes then went to his wife's place of work to ask her what to do, and he told her to call the police. Mr. Stokes called the police at 12:10 p.m., but did not want to get involved because there were warrants out on him. Mr. Stokes is forty-seven years old, wears eyeglasses, is right-handed, and wears a mustache and beard. Later that evening, Mr. Stokes called Marguise to inquire about the murder and stated that he hoped she didn't think he had done it. Detective Parker Adrine of the Cleveland Police Homicide Unit spoke with appellant after appellant waived his right to remain silent. Appellant stated he had dated the victim's daughter for about one year and had been living in the victim's home approximately one month. Appellant stated that on the evening of May 15th, he had been cleaning the house. He said he cut his finger on some plastic that was in a brown bag by the front door while cleaning. He said the victim had given him some money for bus fare, cigarettes and groceries. She had been on - 4 - the couch on the phone when he left. Appellant stated he got up at about 7:10 a.m. on May 16th and left the house before 8:00 a.m. He arrived downtown around 8:00 a.m. to look at jewelry on Prospect Avenue and shoes for his son. He left downtown and went to visit Carol Golson on Puritas, arriving there prior to 10:00 a.m. Appellant stated that Carol Golson's child had scratched him on the neck. Detective Adrine drew appellant's attention to a scratch on his stomach, and appellant said he had not been aware of that one. Appellant said he and Carol engaged in sex and he left her home around 12:10 p.m. The detective took appellant's clothing, which consisted primarily of a blue jogging suit. The detective observed some puffiness in appellant's left hand and scratches on appellant's body that were recent. On May 17th, the detective observed puffiness in appellant's right eye, of which he took photographs. Detective Adrine inspected the victim's home and was unable to find any bag with plastic inside upon which appellant alleged- ly scratched his finger. He found no evidence of a burglary, and nothing was overturned or pushed out of place in the home. The kitchen and dining room floors appeared very unkempt. He also testified he knew of no stores with jewelry or shoes on Prospect Avenue which would be open at 8:00 a.m. The detective watched the appellant in court to see which hand he used to write. While the detective testified, he saw appellant write with his left hand. - 5 - Detective Gregory Kunz of the Cleveland Police Homicide Unit arrived at the victim's home at 1:00 p.m. In the upstairs bedroom, he found a note in a position so it caught your atten- tion. Marguise identified the writing as that of appellant's. The note read, "Marguise, I went over Shawn's house. I should be back by the time you get home. Love, Glen." Marguise testified that Carol Golson was called "Shawn" and that appellant had never left a note in the past indicating where he would be. Carol Golson testified appellant arrived at her home at approximately 10:15 to 10:30 a.m. on May 16th. When appellant entered her home, he stood in the hallway where she could not see him and played with her kids. He let out a scream and said her four-year-old son scratched him. She had never known her son to scratch an adult and said that while her son had scratched other children, it wasn't a scratch like the one on appellant's neck. She testified that before they engaged in sex, appellant washed out his underwear in the sink. He had never done that before. Appellant took a shower and left a little before 12:13 p.m. Carol testified she had seen appellant with a small knife that had a blade approximately two inches long. Detective Dennis Murphy of the Cleveland Police Homicide Unit testified he inspected the fingernails of Carol Golson's son on May 16th. They were very short and had no jagged edges. Dr. Stanley Seligman and Dr. Elizabeth Balraj examined the appellant on May 17th. Appellant had five recent abrasions. He - 6 - had a one-and-one-eighth-inch scratch on the right side of his face below his ear, a one-and-one-quarter-inch scratch on the left side of his neck, a three-fourths-inch scratch on his abdo- men, a one-half-inch scratch on his right shoulder, and a one- inch scratch on his second left finger. These injuries were consistent with human scratches and were twenty-four to thirty- six hours old. Dr. Balraj testified that she was present during the autopsy of the victim. Based on an examination of the victim's stomach contents, she determined that the time of death was between 7:00 and 9:30 a.m., but closer to 7:00 a.m. Dr. Seligman also testi- fied that the death occurred shortly after she ate, probably between 7:00 and 8:00 a.m. Dr. Seligman testified the victim died from ligature stran- gulation, a stab wound to the abdomen, and blunt impacts to the head. The victim was alive when her wrists were tied with a chain and her ankles with an electrical cord, and she was alive when she received the stab wound. The victim was alive during the strangulation, which could have taken up to five minutes to complete. The victim's lower lip was bruised and lacerated, and she had swelling around her right eye. Robert McQueen testified he lived diagonally across the street from the victim. On May 16th, he woke at 8:30 a.m. to take out the garbage, and he saw a man dressed in blue come out - 7 - of the gate of the victim's home. He didn't think he could identify that man. Melvin Lewis testified that he lives across the street from the victim's home. On May 16th, he awoke at 8:45 a.m. and looked out the door to make sure he didn't miss putting the garbage out. At that time, he saw a man standing in the door of the victim's home who was a young man, slim, medium height, wearing dark clothing, and not wearing glasses. He identified appellant's jacket in a photographic array of jackets. Roxanne Scott, an RTA bus driver, testified she lives at 844 East 130th Street. On May 16th, she arrived at the bus garage at 9:02 a.m., met her mother at the garage, got in her car and drove home. Her home is about a five-minute drive from the garage. While stopped at East 130th and Iroquois, she saw a man coming down the steps of the victim's home whom she had never seen before. Her mother asked her the time, and it was 9:10 a.m. The man was putting something in the front right-hand pocket of his pants. He was wearing blue clothing. Several days later, she positively identified appellant in a line-up as the man coming out of the victim's home. She also selected appellant's jacket from a photographic array of jackets. Mark Angelotta, a private investigator, testified for the defense. He testified that Willie Stokes was wearing a jacket which fit the description given to him by Roxanne Scott of the one worn by a man leaving the victim's home. - 8 - Based on the above evidence, the jury found appellant guilty of aggravated murder. Appellant now timely appeals, raising four assignments of error for our review. ASSIGNMENT OF ERROR I THE JURY VERDICT AGAINST THE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ALL THE ESSENTIAL ELEMENTS OF THE CRIME OF AGGRAVATED MURDER, THUS CREATING REVERSIBLE ERROR. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED AS A MATTER OF LAW IN CHARGING THE JURY ON AGGRAVATED MURDER IN THAT THERE WAS NOT SUFFICIENT EVIDENCE PRE- SENTED WHICH SHOWED ANY "PRIOR CALCULATION AND DESIGN," A NECESSARY ELEMENT REQUIRED FOR A CONVICTION ON AGGRAVATED MURDER. ASSIGNMENT OF ERROR III THE JURY VERDICT AGAINST THE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE ELEMENT OF "PRIOR CALCULATION AND DESIGN" NECESSARY TO A CONVICTION OF AGGRAVATED MURDER WAS NOT PROVEN BEYOND A REASONABLE DOUBT. Appellant contends his conviction was against the manifest weight of the evidence and that the trial court erred in not granting his motion for acquittal. These arguments are without merit. In reviewing the weight of the evidence, an appellate court's function is to determine if there was evidence which, if believed, would convince the average person of the accused's - 9 - guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 273; State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. The credibility of the testimony and the weight of the evidence are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essen- tial elements of the crime proven beyond a reasonable doubt. When the state relies on circumstantial evidence to prove an element of the offense charged, there is no requirement that the evidence be irreconcilable with any reasonable theory of inno- cence in order to support a conviction. Jenks, supra. A court shall enter a judgment of acquittal only if the evidence is such that reasonable minds cannot find that each material element of a crime has been proven beyond reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 261. The aggravated murder statute (R.C. 2903.01) states, in pertinent part, that no person shall purposely, and with prior calculation and design, cause the death of another. In the present case, the evidence demonstrates that appel- lant was present in the victim's home during the time of her murder, which occurred between 7:00 and 9:30 a.m., but closer to 7:00 a.m. Furthermore, an examination of appellant revealed he had five recent abrasions consistent with human scratches. The evidence also demonstrates that the victim was alive when her - 10 - wrists were tied and when she was stabbed. The victim was then strangled with a chain for up to five minutes. Since there were no signs of a struggle in the room, the evidence indicates that appellant would have had to gather the dog chain and vacuum cleaner cord prior to committing the murder. Thus, sufficient, credible evidence was adduced to prove that the murder was com- mitted with prior calculation and design. Based upon these facts and all the evidence adduced at trial, we cannot find that the verdict was against the manifest weight of the evidence. The circumstantial evidence did not have to be irreconcilable with any reasonable theory of innocence in order to support the conviction. Accordingly, Assignments of Error I, II and III are over- ruled. ASSIGNMENT OF ERROR IV THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING INTO EVIDENCE THE PHOTOGRAPHS DENOTED AS STATE'S EXHIBITS NOS. 119 AND 120 IN THAT SUCH PHOTOGRAPHS WERE NOT RELEVANT AND WERE PREJUDICIAL TO THE APPELLANT. Appellant contends the trial court erred in admitting into evidence photographs showing appellant's puffed eye taken a day after the crime, Exhibit Nos. 119 and 120, as they were not relevant and were prejudicial to appellant. This argument is without merit. - 11 - Evid. R. 401 defines relevant evidence as that which tends to make the existence of any fact of consequence to the determi- nation of the cause more or less probable than it would be with- out the evidence. A trial court enjoys broad discretion in admitting evidence and will be reversed only for an abuse of discretion whereby the defendant has suffered material prejudice. State v. Williams (1982), 7 Ohio App. 3d 160. In the present case, the existence of a swollen eye within twenty-four hours of the incident may tend to make the existence of an assault more probable than it would be without the evi- dence. The defense was given the opportunity to explain the cause of this swelling. Thus, we cannot find that the photo- graphs were prejudicial to appellant. Assignment of Error IV is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J. JAMES D. SWEENEY, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .