COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59313 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MARVIN TATE, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-245,384 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Phyllis Brooks 75 Public Square Suite 1210 Cleveland, Ohio 44113 -2- NAHRA, J.: Marvin Tate appeals his convictions of aggravated murder with a gun specification and felonious assault with gun and violence specifications. For the reasons set forth below, we affirm the convictions. Early on the morning of October 2, 1989, Marvin Tate was involved in an altercation at 3585 E. 147th Street in the City of Cleveland. Two witnesses testified that a group including appellant, David Campbell, Stacey Bassett, LaDon, and Jeanel Stokes had been smoking a large amount of rock cocaine supplied by appellant on the evenings of September 30th and October 1st at Jeanel Stokes home at 3585 E. 147th Street. Late at night on October 1st, appellant became angry because he thought someone had stolen some of his cocaine. Appellant got into an argument with LaDon, and Jeanel Stokes told them to leave. Appellant threw a wrought iron chair through Stokes' front window, and some neighbors and the police arrived. Patrolman Jerome Howard testified that he went to E. 147th Street early on October 2nd. He saw two males fighting, and identified appellant as one of them. He observed broken windows in Jeanel Stokes' house. Appellant told him that he had been robbed and his car keys had been taken. Appellant was cursing, and the police restrained him from returning to the house. The police discovered that appellant's driver's license had been indefinitely suspended; that his car was registered to someone else; and that the license plates on the car were registered to a -3- third person. At 2:15 A.M. the police ordered a tow truck to remove the car from Stokes' driveway. Police officers took appellant to a phone booth at 146th and Kinsman, where they last saw him at about 3:50 A.M. They patted him down prior to giving him a ride and found no drugs, weapons, or keys. Jeanel Stokes testified that she, David Woodruff and LaDon were in her basement after appellant left. She stated that she fell asleep on the couch. When she woke up, she heard David Woodruff and appellant talking. LaDon was no longer there. She stated that appellant was holding a shotgun and threatened to shoot Woodruff and Stokes. Woodruff got up from the couch and walked toward the laundry room. According to Stokes, appellant shot Woodruff in the back, and was coming toward her when she tried to duck and put the bedspread over her head. She stated that she did not remember anything after that until she woke up later and realized she had been shot behind her left ear. She went to Joyce Brewer's house at about 7:45 A.M. and was taken to the hospital by ambulance from there. She told Joyce Brewer that appellant shot her. She estimated that the shooting took place at about 6:30 or 7:00 A.M. Stacey Bassett of 3652 E. 147th Street testified that she was at Jeanel Stokes' house smoking rock cocaine on September 30 and October 1, 1989. She stated that appellant supplied the drugs but became angry when he thought someone took his cocaine. After she returned to her home on the evening of October 2nd, Bassett heard glass break and went back over to Stokes' house, -4- where she saw appellant outside. She said appellant was very upset and would not leave, and that he got into a fight. Bassett testified that she went back home and slept a few hours until David Campbell woke her up. Campbell was very upset and told Bassett that Woodruff was dead. He wanted to change into a pair of her pants because his had blood on them. Bassett and Campbell went to Brewer's house and saw that Jeanel Stokes had been shot. They directed the ambulance drivers to Woodruff's body. Joyce Brewer testified that Dave Campbell was frightened on October 2nd. She stated that she saw him go into Stokes' house on October 3rd and break the police seal. Campbell gave police a statement on October 2nd but could not be located thereafter. Appellant's alibi witnesses Grace Motil and her son Bill testified on his behalf. Grace Motil stated that she received a collect call from appellant for her son Bill at 3:30 A.M. on October 2nd. There was no record of this call on the Motil's phone bill. She stated that she next saw appellant at about 2:30 P.M. on October 2nd. Bill Motil testified that appellant worked with him at his auto body garage and sometimes slept in the garage on a couch. He stated that he found out that appellant used drugs about two weeks before October 2nd. He testified that appellant called Motil at Motil's parent's house in Huntsburg on October 2nd. Appellant asked Motil to pick him up from a Sunoco station at Rt. 87 and 150-something in Cleveland, and told Motil that somebody was after him to kill him. Motil stated that he left the house -5- shortly after 3:30 A.M. and picked appellant up. He said they proceeded to Jeanel Stokes' house, where Motil got out of the car and went to the door while appellant stayed in the car. Motil stated that he was looking for Don or LaDon. Motil wanted Don to help him on a body work project at his shop in Huntsburg. Woodruff answered the door at Stokes' home and told Motil that LaDon was at a house down the road. Appellant then got out of the car and told Woodruff that he would pay for the broken windows. Other evidence indicated that Bill Motil did not tell a police detective investigating the murder or a prosecutor who called him about appellant's alibi defense that he and appellant had returned to E. 147th Street and had seen Woodruff. Bill Motil testified that he and appellant left Stokes' house at about 5:00 A.M. and drove to Huntsburg, which took about an hour. He testified, and Murphy confirmed, that they spoke with Merle Murphy upon arriving at Huntsburg at 6:00 A.M. Bill Motil stated that he went to bed and slept until appellant called him from the body shop next door at 8:30 or 9:00 A.M. He stated that he took appellant to a location near Rt. 480 and Lee Rd. so that appellant could get the title to his car straightened out later that day, and that his mother was wrong if she thought she saw appellant in Huntsburg at 2:30 P.M. Motil testified that he did not see appellant again until appellant's trial, although he spoke with him on the phone. He stated that he knew that the police were looking for appellant, but that he did not know where appellant was. -6- Appellant turned himself in to police on November 6, 1989. He was charged with aggravated murder for the death of Woodruff; felonious assault for the shooting of Stokes; and vandalism for breaking the windows in Stokes' house. A jury found him guilty of all three offenses. Appellant brought this timely appeal of his aggravated murder and felonious assault convictions. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED IN THE INSTRUCTION CONCERINING [SIC] ALIBI. Crim. R. 30(A) provides in part that "[a] party may not assign as error the giving or failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection." If no objection is made to jury instructions at trial, the trial court's decision will not be reversed absent plain error. State v. Long (1978), 53 Ohio St. 2d 91. Jury instructions which shift the burden of proof do not constitute plain error unless the outcome of the trial would have been otherwise, but for the error. Id., paragraph two of the syllabus. In this case, appellant made no objection to the court's instructions. The court's instructions regarding alibi were as follows: Now, ladies and gentlemen, the Defendant in this case filed what is known as an alibi -- on or about -7- December 5th of 1989, they filed the following document: "Now comes the Defendant, Marvin Tate, and gives notice to Plaintiff herein, the State of Ohio, by and through his representative -- its representative, John T. Corrigan, Esquire, that on the day of the alleged offense, at the time of the alleged offense, he was at 16281 Mayfield Road, Huntsberg [sic], Ohio, 44046." Now, what then is alibi? The Defendant claims that he was at some other place at the time the offense occurred. This is known as alibi. The word "alibi" means elsewhere or a different place. If the evidence fails to establish that the Defendant was elsewhere, such failure does not create an inference that the Defendant was present at the time when, and at the place where these alleged crimes may have been committed. If after a fair, calm, impartial consideration of the evidence of alibi, along with all the evidence, you are not convinced beyond a reasonable doubt that the Defendant was present at the time in question, then you must return a verdict of not guilty. On the other hand, if after a fair, calm consideration of all the evidence of alibi, along with all the other evidence, you are not convinced beyond a reasonable doubt that the Defendant is guilty of the crime alleged in the indictment, then your verdict-- pardon me -- if you are convinced beyond a reasonable doubt that the Defendant is guilty of the crimes alleged in these indictments, then your verdict should be guilty. Appellant argues that this charge did not properly explain that the burden of proof remains with the state. He also claims that the portion of the charge beginning with "On the other hand," is confusing and unintelligible. This court has previously determined that alibi charges nearly identical to the charge in this case did not constitute plain error. State v. Lewis (Jan. 26, 1984), Cuyahoga App. No. -8- 46973, unreported, at 3-4; State v. Carr (Dec. 3, 1981), Cuyahoga App. No. 43524, unreported, at 2-3. As to the last portion of the charge, the record reflects that the court began to restate the preceding sentence of the charge; caught itself; interjected "pardon me," and proceeded to the next sentence of the charge. The court did not misstate the burden of proof. This small duplication could not have changed the outcome of the trial. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error reads as follows: THE VERDICT OF GUILTY IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE. A reviewing court may not reverse a conviction as against the manifest weight of the evidence where the trier of fact could reasonably conclude based on substantial evidence that the state proved the offense beyond a reasonable doubt. State v. Eley, see supra. In State v. Martin (1983), 20 Ohio App. 3d 172, the court stated the test for determining manifest weight as follows: * * * The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. -9- Martin, supra, at 175. See also State v. Mattison (1985), 23 Ohio App. 3d 10. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In this case, there was substantial evidence from which the jury could reasonably conclude that the state proved the offenses of aggravated murder and felonious assault beyond a reasonable doubt. The victim and eyewitness, Jeanel Stokes, testified that appellant threatened her and Woodruff; shot Woodruff in the back; and then shot her. The coroner's testimony indicated that Woodruff was shot in the back. The testimony of police officers, forensic evidence, and photographs from the scene of the shooting were also consistent with Stokes' testimony. Joyce Brewer, Stokes' neighbor, also testified that Stokes came to her home after the shooting, bleeding from the head, and told her that appellant had shot her. Appellant's second assignment of error is without merit. Affirmed. -10- 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 Common Pleas Court 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. DAVID T. MATIA, P.J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .