COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59937 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MALIK RICHARDSON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-249299 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee STEPHANIE TUBBS JONES CUYAHOGA COUNT PROSECUTOR BY: DOMINIC DELBALSO ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: THOMAS M. SHAUGHNESSY 11510 BUCKEYE ROAD CLEVELAND, OHIO 44104 - 2 - SPELLACY, J.: On February 12, 1990, defendant-appellant Malik Richardson ("appellant") was indicted for Aggravated Murder, in violation of R.C. 2903.01, with a firearm specification. A bench trial commenced on April 24, 1990. The trial court found appellant guilty of Murder, in violation of R.C. 2903.02, with a firearm specification, finding that he purposely caused the death of Jessie Lewis on January 26, 1990. Pertinent evidence adduced at trial reveals the following: On the day before Lewis's death, in the early morning hours, Jessie Lewis, David White, Teamus Hudson, and Claude Underwood were involved in a brawl with appellant, Mario Tinsley, and several other individuals. White testified that he, Lewis, and Hudson had been driving by the Cascade Lounge when they saw their friend Underwood fighting against a group of individuals and they stopped to help. Appellant testified that he had been watching Underwood and Tinsley fight one on one when Lewis and White "jumped" him. The brawl lasted only thirty to sixty seconds before the police arrived. Appellant, who testified that Lewis and White gave him a black eye and bruised his face, was arrested by the police and released several hours later. On January 26, 1990, at about 12:30 A.M., Lewis, White, and Jerome Smith went to the Zulu Motorcycle Club, a bar. A few minutes after they arrived, appellant, Tinsley, and an individual -3- named Victor entered the club. Tinsley approached Lewis, White, and Smith and began exchanging words with them about the brawl that occurred the night before. They then decided to leave the club so that they could fight. White testified that on the way out of the club he punched Tinsley from behind. Appellant testified that White punched him, not Tinsley. On direct examination, Smith testified that White punched Tinsley. On cross-examination, however, he stated that White punched appellant. At this point, the Zulu members began punching White because fighting was not allowed inside the club. Larry Petty, who testified that he knew both Lewis and his friends and appellant and his friends, was in the club and observed the Zulu members punching everyone. Petty stated that the club emptied out. Petty went on to testify that about twenty minutes after the melee in the club he saw Lewis and Smith exchanging words with Tinsley near White's car. It is undisputed that appellant ran up to this group, obtained a handgun from either Tinsley or Victor, and shot Lewis, killing him. It is also undisputed that appellant then fired several shots at White's car, threw the handgun down a sewer, and fled with Tinsley. The witnesses, however, gave varying accounts of the incident. Petty testified that after appellant ran up to the group, he told Tinsley that Lewis and White were the ones who had "jumped" him and asked Tinsley to give him the handgun, which was in -4- Tinsley's waistband. Petty further testified that Tinsley gave the handgun to appellant and then swung at Lewis, who jumped back with his fists up ready to fight. Petty stated that appellant then shot Lewis. Smith testified that Tinsley handed his handgun to Victor and took off his jacket so that he could fight Lewis. Smith went on to testify that appellant ran up and stated: "F _ _ _ that, I'll shoot that mother_ _ _ _ _ _ " Smith stated that appellant then grabbed the handgun from Victor and shot Lewis. White testified that Lewis and Tinsley were getting ready to fight when appellant stated: "F _ _ _ that, f _ _ _ that", took the handgun from Tinsley, and shot Lewis. On cross-examination it was revealed that in his statement to the police, White had stated that he was on the ground being punched by the Zulu members when Lewis was shot. White also did not know whether appellant had been the one who shot at his car. Terrence Ragland, a passerby, testified that appellant grabbed the handgun from Tinsley's waistband, stated that he was tired of this "shit", and shot at Lewis. Ragland further testified that Lewis was trying to get away and slipped in some water when appellant shot him. Appellant testified that he said "F _ _ _ you" to Lewis, and Lewis responded by yelling, "Somebody has got to die" and charged at him. Appellant stated that as Lewis charged at him he looked around and saw a handgun in Victor's waistband, which he grabbed and fired at Lewis. Appellant further stated that he had not -5- known Victor had a handgun until he looked at Victor's waist as Lewis charged. Appellant went on to testify that there was a lot of confusion at the time of the shooting and that although he did not look to see whether Lewis had a weapon, he thought that Lewis and the others carried handguns in their car. According to the Coroner's testimony, Lewis died at 1:35 A.M. on January 26, 1990, as the result of a single bullet wound to the chest. The Coroner testified that the exit wound was eight inches lower than the entrance wound, and that the path of the bullet was consistent with either Lewis lunging toward the shooter or being in a crouched position. At the conclusion of the trial, after finding appellant guilty of the lesser included offense of murder, with a firearm specification, the trial court sentenced him to a term of three years actual incarceration followed by a term of fifteen years to life. Appellant appeals and raises the following assignment of error: IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO CONVICT APPELLANT OF MURDER WHERE THE EXISTENCE OF THE MITIGATING CIRCUMSTANCES OF EXTREME EMOTIONAL STRESS WERE PLAINLY SHOWN. Appellant's assignment of error lacks merit. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. When addressing whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: -6- *** 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. State v. Davis (1988), 49 Ohio App. 3d 109, 113. A review of the record reveals some inconsistencies among the testimony of the witnesses. Despite this fact, however, we conclude the trial court could properly find appellant guilty of murder, in violation of R.C. 2903.02. Accordingly, appellant's assignment of error is not well taken. Judgment affirmed. -7- 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, C.J., and KRUPANSKY, J., CONCUR. LEO M. SPELLACY 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. .