COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59465 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION KEVIN J. LEWIS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-245316 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE F. LONJAK, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: MICHAEL E. MURMAN 14701 Detroit Avenue #555 Lakewood, Ohio 44107 - 2 - KRUPANSKY, C.J.: Defendant was indicted by the Cuyahoga County Grand Jury of the count of aggravated murder, R.C. 2903.01, with a gun specification and one count of felonious assault, R.C. 2903.11, with a gun specification. The felonious assault count was dismissed prior to trial. Trial was by jury; defendant was found not guilty of aggravated murder, but found guilty of the lesser included offense of involuntary manslaughter with the gun specification. The trial court sentenced defendant to three years actual incarceration for the gun specification and a term of ten to twenty-five years for the involuntary manslaughter conviction. This appeal was thereupon filed by defendant. The relevant facts which are not in dispute follow: On the afternoon of October 11, 1989, a near riot occurred at East High School in Cleveland. It was caused when two students engaged in a fight. One student was a member of a gang called the Road Dogs and was known only as "Critter"; the other student, Hubert Harris, was affiliated with a rival gang called the Posse. The fight was apparently over gang "territory." The school's security force and the Cleveland police had to be called to quiet the situation at the school. Later that evening, Harris and two of his friends, John Siemientkowski and Dante Cleveland, went to a place called the Donut Hole, located on East 86th Street and Superior Avenue. The Donut Hole was allegedly within the "territory" of the gang known - 3 - as the Posse. That establishment was a "hang-out" for Harris and his friends. At some point during the evening, John Siemientkowski went outside. Soon thereafter, at approximately 9:00 or 10:00 p.m., defendant Lewis and his co-defendant Clifton Bobo/1\ entered the establishment. Both defendants carried loaded guns. Defendant and Bobo confronted Harris about the fight at school earlier in the day. The evidence is conflicting at this point; however, it can be gleaned the following sequence of events occurred: When defendant and Bobo confronted Harris, Harris was struck in the face with either a gun or an open hand by either defendant or Bobo. As Harris rose from the stool on which he had been sitting, his friend John Siemientkowski reentered the establishment, grabbed defendant Bobo and demanded to know why Bobo had hit Harris. Defendant Lewis thereupon pulled out his gun. Siemientkowski reached for a weapon behind the counter of the restaurant, but was shot dead before he could reach it. Siemientkowski, according to the testimony of Mr. Price, a customer, former security guard and eyewitness, was caught in the crossfire between defendant and Bobo. Price further testified Harris then picked up the gun which Siemientkowski had been reaching for and began shooting. More gunfire was exchanged between Harris and defendants, and defendant Lewis was hit in the /1\ Clifton Bobo has filed a separate appeal of his conviction, designated as Cuyahoga App. No. 60013. - 4 - leg. Defendant and Bobo thereupon fled the scene of the shooting. Defendant and Bobo were later arrested. Defendant and Bobo were both subsequently indicted for aggravated murder, R.C. 2903.01, with a gun specification, and felonious assault, R.C. 2903.11, with a gun specification. The felonious assault charge against each was dismissed prior to trial. The jury found defendant and Bobo not guilty of aggravated murder, but guilty of involuntary manslaughter with the gun specification. Defendant and Bobo were duly sentenced. Defendant Lewis herein appeals his conviction, citing three assignments of error for review. Defendant's first assignment of error follows: THE JURY'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error lacks merit. Defendant argues the state's evidence regarding his guilt was inconclusive and unreliable. However, his argument is unpersuasive. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, - 5 - 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. State v. Martin, supra, at 175. 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. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. The reviewing court must therefore analyze each element of the underlying offense when considering defendant's argument that his conviction was against the manifest weight of the evidence. The jury found defendant guilty of involuntary manslaughter, a lesser included offense of the original indictment for aggravated murder. R.C. 2903.04, Involuntary manslaughter, states as follows: 2903.04 Involuntary manslaughter. (A) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony. (B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a misdemeanor. - 6 - (C) Whoever violates this section is guilty of involuntary manslaughter. Violation of division (A) of this section is an aggravated felony of the first degree. Violation of division (B) of this section is an aggravated felony of the third degree. Contrary to defendant's assertion, an appellate court need not subject circumstantial evidence of guilt to a standard of proof other than proof beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259. Dr. Seligman of the county coroner's office testified regarding his findings following an autopsy of the victim, John Siemientkowski. In relevant part, he testified as follows: Q. Could you tell the jury what you found with respect to your external examination? A. I found two gunshot wounds. One on the left chest and a gunshot wound of the upper right arm. **** Q. Excuse me. I don't mean to interrupt you, Doctor, but before you go into the internal examination, could you describe, basically, the male, his general appearance, age, etc. A. He was a very large and obese person. His height was six foot one and a half, and he weighed 361 pounds.... **** A. The bullet perforated the heart and right lung. Q. This is the shot to the chest; is that right? A. Yes. **** - 7 - Q. Now, Doctor, could you describe for the jury then, as you described earlier in your description of what an autopsy was, the path of this pellet or bullet? A. The path of the bullet is entering the left chest and going through the heart and lung and it was lodged in the back of the right chest. The course and direction was from left to right, front to back and downward. **** Q. Continue with your testimony with regard to the internal examination. You testified about another gunshot wound to the right arm? A. On the side of the right upper arm the bullet entered at about two and a half inches below the shoulder. It fractured the bone of the upper arm, which is called the humerus. The bullet was flattened out and it was lodged in front of this bone, the humerus bone. **** Q. Well, Doctor, look at State's Exhibit 3. Is there anything with respect to the perforation of the skin which shows, somehow, the path of the pellet, the way the bullet entered the skin? A. This photograph shows the dried abrasion on the left aspect of the wound. The size and angle of abrasion on the skin around the wound confirms the path of the bullet and the sense of its direction. We can tell from the way the bullet scrapes the skin that, in this case, it's going from right to left, and downward. Hubert Harris testified to the incidents leading up to the confrontation between himself, defendant and Bobo. Harris's testimony was in conflict with other witnesses, however, his testimony indicated defendant Bobo purposely assaulted him by hitting him in the face with a gun, that defendant and Bobo - 8 - entered the Donut Hole with guns, that thereafter shooting began and John Siemientkowski was thereby killed. Harris' testimony concerning the victim's, defendant's and Bobo's actions was substantially corroborated by the testimony of Mr. Price, a customer at the Donut Hole and an eyewitness to the incident. Mr. Price designated defendant Lewis the "triggerman" who shot the victim in the chest. Furthermore, the testimony of the police officers, detectives and forensic experts concerning the location of Mr. Siemientkowski's body and the wounds sustained by the victim and defendant was consistent with Harris' testimony. Defendant corroborated essential portions of Harris' and Mr. Price's testimony with regard to the events leading up to the confrontation. Defendant's testimony as to what occurred after Bobo hit Harris in the face was contradicted by Harris and Mr. Price. Defendant's testimony at trial was inconsistent with parts of his statement given to police after the shooting; his testimony was peppered with "I don't remember" in response to many questions and at one point in his testimony he even admitted lying to the police. The jury is in a better position to observe the witnesses, therefore, witness credibility and weight of the evidence are primarily for the jury to assess. State v. DeHass, supra. Thus, the record in the case sub judice reflects that weighing all the evidence and reasonable inferences, considering - 9 - the testimony and credibility of the state's witnesses and the defendant, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE JURY ERRED IN FINDING APPELLANT GUILTY OF INVOLUNTARY MANSLAUGHTER SINCE THE EVIDENCE REVEALED HE WAS ACTING IN SELF-DEFENSE, DEFENSE OF OTHERS OR WAS LEGALLY JUSTIFIED IN CAUSING THE VICTIM'S DEATH. This assignment of error lacks merit. Defendant argues competent, credible evidence established he acted in self-defense and, therefore, his conviction for involuntary manslaughter must be reversed. This argument is unpersuasive. Self-defense is an affirmative defense; therefore, defendant has the burden to prove this defense by the preponderance of the evidence, State v. Martin (1986), 21 Ohio St. 3d 91. In seeking to prove self-defense, defendant "admits the facts claimed by the prosecution and then relies on independent facts or circumstances which defendant claims exempt him from liability." Id. To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray ***; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force ***; and (3) the slayer must not have violated any duty to - 10 - retreat or avoid the danger, ***. [Citations.] State v. Jackson (1986), 22 Ohio St. 3d 281. Furthermore, the court in Jackson stated as follows: [T]he elements of self-defense are cumulative. In order to prevail on the issue of self-defense, the accused must show that he was not at fault in starting the affray, and that he had a bona fide belief that he faced imminent danger of death or great bodily harm and that his only means of escape was the use of such force, and that he violated no duty to retreat or avoid the danger. If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense. In the case sub judice, it is apparent from the verdict the jury believed the testimony of the state's witnesses that defendant was at fault in starting the confrontation and did not have a bona fide belief he faced imminent danger of death. The testimony of Harris and Mr. Price showed the following: (1) defendant and Bobo went to the Donut Hole probably with the expectation of finding Harris; (2) they saw Siemientkowski leave the Donut Hole and they then entered the establishment; (3) they were aware that Harris and Siemientkowski were larger and heavier than they and would probably get the better of defendant and Bobo if they fought one-on-one, e.g., on cross-examination of Bobo, he stated as follows: Q. Isn't it true that if John and Hubert went one on one with you guys, they would squish you guys like grapes? A. Probably. - 11 - (4) defendant and Bobo carried loaded guns when they entered the Donut Hole; (5) defendant and Bobo menaced Harris; and (6) with the gun he already possessed, defendant shot John Siemientkowski before Siemientkowski could reach the gun behind the restaurant counter. In addition, the state's forensic experts could not conclusively establish the victim held a gun before his death. Furthermore, on cross-examination, it was established that, in a statement given to police soon after the incident, defendant admitted Bobo hit Harris, causing the chain of events leading to the victim's death. Also, defendant testified he did not know there was a gun behind the counter at the Donut Hole. Again, the weight to be given evidence and the credibility of the witnesses are primarily decisions for the jury. State v. DeHass, supra, paragraph one of the syllabus. It is evident that in the case sub judice, the jury heard the witnesses, weighed the evidence, and rejected appellant's contention that he had a bona fide belief that he was in imminent danger of death or great bodily harm. Based upon the totality of the evidence, there was substantial evidence to support the jury's conclusion that defendant had not proved the elements of self-defense. State v. Jackson, supra. Thus, the jury did not err in finding defendant guilty of involuntary manslaughter. Accordingly, defendant's second assignment of error is without merit and is overruled. - 12 - Defendant's third assignment of error follows: APPELLANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF OTHER ACTS TESTIMONY, AND IRRELEVANT TESTIMONY CONCERNING GANG MEMBERSHIP AND ASSOCIATION, WHICH THEREBY PORTRAYED APPELLANT AS A GENERALLY EVIL PERSON WHO ACTED IN CONFORMITY WITH HIS NATURE. This assignment of error lacks merit. Defendant argues the evidence that he was associated with a gang was inadmissible under Evid. R. 404(A). Evid. R. 404 states in pertinent part the following: RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES (A) Character Evidence Generally. Evi- dence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformi- ty therewith on a particular occasion ***. * * * (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.) With regard to Evid. R. 404(B), the Supreme Court of Ohio has stated the following: If the other act does in fact "tend to show" by substantial proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible. (State v. Flonnory [1972], 31 - 13 - Ohio St. 124, 18, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, followed.) State v. Brown (1988), 40 Ohio St. 3d 277, paragraph one of the syllabus. Furthermore, this court has stated as follows: the prosecutor argues, proof of motive, intent and plan are proper purposes. To be relevant, *** and therefore admissible, the other act testimony must "[tend] to make the existence of any fact that is of consequence *** more probable or less probable ***." Evid. R. 401. *** [I]f the evidence is relevant, it must be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice ***." Evid. R. 403(A). Other act evidence is never admissible *** "when its sole purpose is to establish that the defendant committed the act alleged of him in the indictment." [Citations omitted.] State v. Matthews (1984), 14 Ohio App. 3d 440. In the case sub judice, the evidence that a gang-related fight took place at defendant's high school the day of the killing and the evidence defendant and the other young men involved in the crime were associated with rival gangs was highly relevant to the state's case. Other act evidence to show scheme, plan or system is relevant in two situations. First, another act is relevant if it `form[s] part of the immediate background of the alleged act which forms the foundation of the crime charged***.' State v. Curry, supra, at 73. In this situation, the other act must be inextricably related to the charged offense so that `it would be virtually impossible to prove that the accused committed the crime charged without also introducing evidence of the other acts.' Id. - 14 - State v. Martin, supra. The issue was whether the co-defendants killed John Siemientkowski while committing a felony, viz., felonious assault. Thus, their scheme or plan was relevant. The sole purpose of defendant and Bobo seeking out Harris at the Donut Hole was to confront Harris about the fight between Harris and Critter that sparked the near riot at the school which had occurred earlier in the day. The boundaries, or "turf", between the rival gangs was the catalyst for the entire chain of events leading to the victim's death. The "other act" testimony was introduced to show defendant's scheme or plan in going to the Donut Hole and in confronting Harris. Furthermore, the crime of involuntary manslaughter requires specific intent, so the "other act" evidence, which was probative of both defendants' intent to commit the crime, was also relevant for that purpose. Thus, the trial court did not err in admitting evidence concerning gang association. State v. Brown, supra. Accordingly, defendant's third assignment of error is overruled. Affirmed. - 15 - 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. JOHN F. CORRIGAN, J., and PATTON, J., CONCUR CHIEF JUSTICE BLANCHE KRUPANSKY 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. .