COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58028 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY WILCOX : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 237003 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WENDY I. WILLIS, ESQ. Cuyahoga County Prosecutor 375 Statler Office Tower By: GEORGE J. SADD, ESQ. 1127 Euclid Avenue 1200 Ontario Cleveland, Ohio 44115-1601 Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant was indicted on four counts on March 13, 1989. Count one was a felonious assault charge with two specifications, that the assault was made upon a peace officer and that the assault involved a firearm. Count two alleged a violation of the drug trafficking law making it a crime to prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute cocaine. Count three was another drug law violation, alleging that appellant did knowingly obtain, possess, or use cocaine. Both counts two and three contained a gun specification as well. Finally, count four of the indictment alleged that appellant was in possession of criminal tools. After a trial by jury, the verdict found appellant guilty as charged of counts one, three and four. The jury acquitted appellant on the second count of drug trafficking. The charges against appellant stem from a police search of an apartment in the city of Cleveland on February 25, 1989. The apartment had been suspected of being the site of crack dealing and the police, including a SWAT team, were executing a warrant for a search of the premises. The SWAT team knocked at the door of the apartment and announced themselves as police officers. After waiting approximately thirty seconds, William Bolton, a SWAT team member, knocked the door open with a battering ram. Instantaneously with the door swinging open to his right, Bolton was shot in the upper right abdomen. Luckily, he was wearing a - 2 - bullet-proof vest and was only knocked against the far wall of the hallway behind him, sustaining bruises from the impact of the bullet. Eric Wolfe was the point man, or the man designated to make the first entrance into the apartment, after Bolton opened the door. Wolfe was stationed to the left of Bolton at the door. As the door opened he testified to hearing a sound like that of an aluminum pop can being stepped on. He did not know at that moment that a fellow member of the SWAT team had been hit. At the moment he heard the noise, he saw the knees of Andre Oden. He then noticed a rifle laying across the arms of the red chair in which Oden was sitting with his arms in the air. Oden was seated just to the right of the door, against the wall. Wolfe stepped into the apartment, kicked the rifle off the chair and away from Oden, then noticed appellant off to his left. Appellant was seated in a blue chair diagonally across the room from the door. Wolfe testified that no obstructions were between appellant and Bolton when the door flung open. The door itself was between Bolton and Oden at that time. When Wolfe first noticed appellant, he appeared to Wolfe to be slumped over with his left hand in his lap and his right hand down by his feet on the floor. Once Wolfe ordered appellant to his feet, Wolfe noticed the rifle under the chair near where appellant's hand had been. Appellant stood as ordered with only his right hand in the air. His left hand remained in his pocket. After failing to - 3 - remove his hand from the pocket, appellant was struck in the chest with the butt of Wolfe's rifle, throwing appellant to the floor. Appellant and Oden were arrested and taken to the lab for tests. A gunpowder residue test and a trace metal detection test were run on each of the men. The test results were both negative as to appellant. The residue test did show, however, minute traces of powder on the backs of Oden's hands. The testing expert testified that these results would be consistent with the possibility that Oden had been exposed to the blast of a gun within six feet of him. Testimony was also offered to explain that a rifle such as the one found under appellant's chair would not likely have exposed appellant's hands to residue, if it had been fired by appellant, because the rifle was a sealed system. This meant that the blast from the gun would have shot from the barrel end of the gun and not out the back of the rifle, as a pistol would have done. Several officers testified that appellant admitted to being from a small city outside of Detroit. The fact that Oden was from Detroit was also elicited. Over defense counsel's objections, this information was allowed by the court. Testimony was also admitted to the effect that a special task force had been selected to fight the influx of gangs from Detroit, here in Cleveland to sell crack. This task force was responsible for the preliminary investigation of the operation out of the apartment - 4 - before the search. A member of the task force testified that they had information that a Tina Perry, in whose name the apartment was leased from CMHA, had allowed "Detroit boys" to use the premises. The apartment was searched after the appellant and Oden had been taken to the lab for testing. A .22 caliber casing was found in the bedroom, approximately four to six feet from the living room where appellant and Oden had been sitting. A ziploc bag was also found in the bedroom. Under the blue chair in which appellant had been sitting was found a brown prescription pill container with eighteen rocks of crack in it. Several plastic bags were found in the bathroom along with a box of baking soda. The bags in the bathroom tested negative for controlled substances. However, tests done on the residue of other bags found in the apartment tested positive for cocaine. Also found in the apartment were a razor blade and a kitchen knife hidden behind the radiator near the blue chair. The only fingerprint which was found to match appellant's prints was on the blade of the knife. The prints found on the guns were not clear enough for comparison purposes. Finally, testimony was heard from the weapons expert at the police lab. He testified that the casing found in the bedroom matched the single shot lever action rifle under appellant's chair. The rifle did not contain a live round when the police found it. Being a single shot rifle, it had to be reloaded after - 5 - each shot. Oden's rifle was also examined. The expert found that it did contain a live round and also another round behind that one which was inserted backwards. The testing done on Oden's rifle, a semi-automatic, found that it was inoperable as far as the self-reloading system was concerned. If one wanted to load Oden's rifle it had to be done manually and was somewhat awkward to perform. Because of the condition of the pellet from Bolton's vest, it was not conducive to being matched to either weapon by the ballistics expert. After the close of the state's case, appellant made a Crim. R. 29 motion to dismiss. The motion was denied. Appellant asserts two assignments of error. I THE TRIAL COURT ERRED BY DENYING APPELLANT'S RULE 29 MOTION FOR ACQUITTAL ON COUNTS I, II AND IV OF THE INDICTMENT, BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION ON THESE COUNTS. As to count one, appellant cites State v. Kulig (1974), 37 Ohio St.2d 157, for the proposition that "there exists a reasonable hypothesis of innocence, reconcilable with the circumstantial evidence presented" and therefore, the evidence is insufficient to sustain appellant's conviction. Appellant's reasonable theory of innocence is that Oden could have fired the weapon and thrown it across the room under appellant's chair. - 6 - Appellant's argument lacks merit. State v. Kulig was overruled by State v. Jenks (1991), 61 Ohio St.3d 259, which held that: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. State v. Jenks, at paragraph one of the syllabus. The test for this court's standard of review is set by State v. Jenks, paragraph two of the syllabus: The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. The offense of felonious assault requires that the state prove beyond a reasonable doubt that appellant did knowingly cause or attempt to cause physical harm to William Bolton, by means of a deadly weapon or dangerous ordinance. The state provided the jury with the evidence that appellant was given an unobstructed opportunity to shoot Bolton, that he had an operable rifle underneath his chair, and that a spent - 7 - casing which matched that rifle was found in the vicinity of appellant's chair. In contrast, the evidence introduced by the state found that Oden did not have an unobstructed opportunity to shoot at Bolton as the door was between the two men. The evidence also showed Oden having his hands up within milliseconds of the shooting and his rifle being loaded with a live round, indicating that he had no chance to shoot and reload the inoperable semi-automatic rifle. After reviewing this evidence it is clear that a rational trier of fact could easily have found that the elements of felonious assault were proven beyond a reasonable doubt. As to the second count, appellant argues that evidence linking him to drug trafficking gangs from Detroit was unfairly prejudicial and contributed to his conviction on count one. The evidence that appellant and Oden were from Detroit was offered as proof that he was involved in drug trafficking here in Cleveland. The jury acquitted appellant on the second count, drug trafficking. This court fails to see how appellant was prejudiced by this information to the extent that the jury unfairly used the information to convict him of the shooting offense. There may be a perception that gangs from Detroit are here for the purpose of selling crack to Clevelanders, however this does not logically lead to the perception that gangs from Detroit are any more likely to shoot at police officers than - 8 - gangs from Cleveland would be. Appellant's argument as to count two lacks merit. Appellant's third argument is that evidence was insufficient to justify an instruction on aiding and abetting. This argument is without merit. A court may instruct the jury on aiding and abetting whenever evidence has been produced which could reasonably be found to show that appellant assisted, incited or encouraged another to commit a crime, and participated in the commission thereof by some act, deed, word or gesture. State v. Perryman (1976), 49 Ohio St.2d 14. See also, State v. Sims (1983), 10 Ohio App.3d 56, at paragraph two of the syllabus. The jury instruction was given on aiding and abetting to include all counts of the indictment. As this court found above, evidence exists from which a reasonable trier of fact could find that appellant fired his rifle at Bolton. From this evidence one could reasonably find that appellant was assisting and participating in the other crimes of drug possession and possession of criminal tools, by the act or deed of hindering the police in their search of the premises. The jury instruction on aiding and abetting was properly supported by evidence of appellant's guilt as an aider and abettor. Appellant's final assertion under the first assignment of error was that the evidence of his mere presence in the apartment was insufficient to show the requisite dominion and control - 9 - required for constructive possession of the drugs or the criminal tools. The indictment for possession of criminal tools included the plastic bags, the prescription pill bottle and the guns as items which appellant had in his possession. The pill bottle and the lever action rifle were under appellant's chair. He had direct access to those items when he was arrested by the police. Therefore, the evidence to support constructive possession of the crack cocaine, the pill bottle and the rifle was more than the mere presence of appellant in the apartment. Appellant had control and dominion over the items under his chair. The first assignment of error is overruled. II APPELLANT'S CONVICTIONS ON COUNTS I AND IV ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE Appellant argues that the evidence as to which man shot Officer Bolton was "vague, uncertain, fragmentary and incomplete." As to count four of the indictment, appellant claims that no evidence linked him to the guns or drugs in the apartment. Neither of appellant's arguments persuade this court that his convictions should be overturned on the manifest weight of the evidence. The standard of review used by this court to assess the validity of a claim that the verdict is against the manifest - 10 - weight of the evidence is set forth by State v. Martin (1983), 20 Ohio App.3d 172, at paragraph three of the syllabus: 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 a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. After reviewing the entire record in this case, weighing the evidence and considering the credibility of the state's witnesses, this court fails to find that the jury clearly lost its way or created a manifest miscarriage of justice. The jury's verdict of guilty on counts one, three and four must stand. Appellant's second assignment of error is overruled. The jury's verdict is affirmed. - 11 - 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. SPELLACY, J., AND JAMES D. SWEENEY, J., CONCUR. PRESIDING JUDGE ANN DYKE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .