COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60256, 60261 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES PARKER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Cases Nos. CR-245368, CR-252199 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN E. GIBBONS, ESQ. Cuyahoga County Prosecutor 2000 Standard Building MARY E. PAPCKE, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, James Parker, appeals from his convictions for aggravated robbery and felonious assault following a bench trial in the Court of Common Pleas of Cuyahoga County. Appellant's timely appeal raises two assignments of error which challenge the verdict as being against the manifest weight of the evidence and assert a double jeopardy argument. We hold these claims are well taken in part thereby requiring reversal and remand for new trial. Kevin Penny ("the victim") stood in a bus shelter located at West 25th Street and Detroit Avenue on April 21, 1990 at approximately 3:40 a.m. Two black males spoke to one another while standing at the same bus stop. The two men asked the victim repeatedly if he had a cigarette. According to the victim, an argument developed when the two men accused him of being nasty when he responded that he could not spare a cigarette. One man, later identified as Jeremy Means, picked up a beer bottle from the ground, broke it, approached the victim, and said, "I will cut your throat." The victim testified that, "after awhile he [Means] did jab me in my face, kept jabbing my face while the other defendant [appellant] was holding me up against the glass, the bus stop." The appellant then said, "he was going to blow my head off" and gestured in such a manner as to leave the victim with the impression that he possessed a gun. Means and appellant then rummaged through the victim's pockets, retrieving food stamps and other papers. Eventually the victim - 3 - wrestled free and ran to a telephone booth across the street to phone the police. The victim heard a van pull up and recognized the occupants as housing project police officers. The officers instructed Means and appellant to remain in the shelter and telephoned the Cleveland Police Department. A cruiser arrived about a half- hour later along with an EMS unit. The victim was treated for cuts and bleeding on his face and lower neck area. On cross-examination, the victim admitted that appellant advised Means "that's enough, that's enough." This only occurred, however, after the appellant was originally involved in the altercation. The victim clarified that the appellant's involvement was not merely to try and break up a fight. Warren D. Watts and Craig Jarvis were on patrol outside of the Lakeview Terrace estate on April 21, 1990 when approached by a male who said two men were beating up a man at the bus stop. By the time the security officers arrived, the victim was running to the telephone booth. The victim informed the officers that Means and the appellant "robbed him and beat him." Watts observed that the victim's nose was cut and bleeding. Means and the appellant were speaking to each other, about a foot apart, when the officers arrived at the shelter. Watts viewed Means with a broken bottle in his bleeding hand and instructed him to put it down. Jarvis observed the bloodied bottle later on the ground. According to Watts, the two men "looked kind of sweaty, like they had been tussling or something." The Cleveland Police - 4 - Department and EMS were then called to the scene. At this point as testified to by Jarvis, appellant denied any involvement in the incident and Means claimed that someone else assaulted the victim. Jeremy Means pled guilty in this case to an aggravated felony. He testified that he arrived alone at the bus shelter at West 25th Street and Detroit Avenue on April 21, 1990 after drinking with some friends. The victim arrived next and Means asked him for a cigarette. The appellant arrived about four minutes later and offered Means a cigarette but Means, "went to fight the dude [victim]" because the victim irritated him. Means denied that he ever held a beer bottle or took anything from the victim. He also denied that the appellant ever participated in the fight; the appellant tried to break the fight up instead by pushing Means and the victim apart. Means knew neither appellant nor the victim prior to these events. The appellant left a walk-in center for homeless people where he does his laundry on West 25th Street on April 21, 1990 and intended to walk home. He decided to take a bus when it started to rain. He entered the shelter and found Means and the victim; the victim was cussing and hollering something about cigarettes. Appellant, believing Means was upset, offered him a cigarette and went into his duffel bag to retrieve one. However, before he could do so, the victim and Means were "throwing fists at each other." Appellant tried to break it up, noting the fight was not worth it over a cigarette. Without touching either of - 5 - them, the appellant walked in the middle of them. Means then reached up under the victim, tried to pick up his legs and both of them fell to the ground. The victim stood up and ran across the street. The appellant explained, "[t]he only thing I did was try to pick them two from fighting over a cigarette, break them up." Moreover, the appellant testified that the victim ran back to the shelter and resumed fighting with Means when the victim saw the arrival of the security van. The appellant and Means were indicted by the Cuyahoga County Grand Jury on May 23, 1990 as a result of the events of April 21, 1990. Appellant was charged with one count of aggravated robbery in violation of R.C. 2911.01 and one count of felonious assault in violation of R.C. 2903.11. Both counts of the indictment carried an aggravated felony specification. Appellant pled not guilty at his arraignment. A bench trial commenced on July 12, 1990. The trial court found appellant guilty of both counts as charged. Appellant was thereafter sentenced to a term of ten (10) to twenty-five (25) years on count one and to a term of three (3) to fifteen (15) years on count two. On July 19, 1990, appellant's sentence was 1/ modified in accordance with R.C. 2941.25 to a single term of ten (10) to twenty-five (25) years. Appellant filed a timely appeal from the trial court's judgment regarding its verdict (Case No. 60261) and the 1/ R.C. 2941.25(A) provides that a defendant may only be convicted of one offense where the same conduct can be construed to constitute two or more allied offenses of similar import. - 6 - revocation of probation (Case No. 60256). This court ordered sua sponte the consolidation of Case Nos. 60261 and 60256 for record, briefing and disposition. His first assignment of error provides: "THE VERDICT OF THE TRIAL COURT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE." The appellant described his participation in the April 21, 1990 incident as an innocent bystander who sought to break up a "stupid" fight over a cigarette. He stresses that the victim's version of the events directly contradicts his and Means' versions. Appellant thus argues that the trier of fact lost its way in rendering its judgment and, therefore, the verdict is against the manifest weight of the evidence. We agree. This court, in addressing such a claim, reviews the entire record, weighs the evidence and all reasonable inferences, considers the witnesses' credibility, and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. In addition, the following guidelines for reviewing challenges to the manifest weight of the evidence were promulgated in State v. Mattison (1985), 23 Ohio App.3d 10, 14. "1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible, *** "2. Whether evidence is uncontradicted, *** "3. Whether a witness was impeached, *** - 7 - "4. Consideration of what was not proved, *** "5. The certainty of the evidence, *** "6. The reliability of the evidence, *** "7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern." (Citations omitted.) However, Mattison clearly states that these factors "are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed." Id. at 14. Finally, issues of credibility and the weight to be given the evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The aggravated robbery statute (R.C. 2911.01) provides: "(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: "(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised code, on or about his person or under his control. "(2) Inflict, or attempt to inflict serious physical harm on another." *** The felonious assault statute (R.C. 2903.11) provides: "(A) No person shall knowingly: - 8 - "(1) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code." *** "Deadly weapon" is defined in R.C. 2923.11 as: "*** any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon." Finally, R.C. 2901.01(E) defines, in pertinent part, "serious physical harm" as: *** "(2) Any physical harm which carries a substantial risk of death; "(3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; "(4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement; "(5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain." Appellant was convicted of aiding and abetting the aggravated robbery and felonious assault. R.C. 2923.03 defines complicity as follows: "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: "(1) Solicit or procure another to commit the offense; "(2) Aid or abet another in committing the offense. - 9 - "(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; "(4) Cause an innocent or irresponsible person to commit the offense." *** In State v. Sims (1983), 10 Ohio App.3d 56, this court reviewed the standard to convict for complicity. To establish that appellant was an aider or abettor, the State was required to show he assisted, incited or encouraged another to commit the offense. The Sims court stated: "However, the terms 'aid' and 'abet' are familiar and simple legal terms. To aid is to assist. To abet is to incite or encourage. Mere association with the principal is not enough. State v. Clifton (1972), 32 Ohio App.2d 284 [61 O.O.2d 348]. Black's Law Dictionary (Rev. 4 Ed. 1968) defines an 'aider and abettor' in the following terms: "'One who assists another in the accomplishment of a common design or purpose; he must be aware of, and consent to, such design or purpose. Pets v. State, 213 Ind. 560, 12 N.E.2d 270, 277. "'One who advises, counsels, procures, or encourages another to commit a crime, himself being guilty of some overt act or advocacy or encouragement of his principal, actually or constructively present when crime is committed, and participating in commission thereof by some act, deed, word, or gesture, Turner v. Commonwealth, 268 Ky. 311, 104 S.W.2d 1085, and sharing the criminal intent of the principal. State v. Reedy, 97 W.Va. 549, 127 S.E. 24, 28." In the instant case, the state presented testimony that the victim was attacked with a broken beer bottle by Means. However, what is lacking from the state's case is any indisputable evidence that appellant advised, counseled, procured or encouraged Means to either attack the victim or to attack him in order to deprive him of his property. We, therefore, find the - 10 - evidence was neither certain nor substantial enough to persuade us that the trial court did not lose its way. As a result, we conclude that appellant's convictions are against the manifest weight of the evidence. Appellant's first assignment of error is sustained. For his second assignment of error, appellant contends that: "THE DEFENDANT-APPELLANT, JAMES PARKER, WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED UNDER THE UNITED STATES AND OHIO CONSTITUTIONS AS HE SUFFERED MULTIPLE PUNISHMENT AND WAS TWICE PLACED IN JEOPARDY, WHEN HE SUFFERED ENHANCED PENALTY FOR A PRIOR CONVICTION WHICH WAS LISTED AS A SPECIFICATION IN AN INDICTMENT AND SUFFERED AN ADDITIONAL TERM OF INCARCERATION WHEN THE TRIAL COURT FOUND HIM TO BE A PROBATION VIOLATOR ON THE VERY SAME CONVICTION." Appellant was charged in a two-count indictment with aggravated robbery and felonious assault. The indictment carried a violence specification since he was previously convicted of the offense of robbery in CR 245368. Appellant's sentence in CR 245368 was suspended and he was ordered to serve one (1) year probation, to pay restitution and costs, and to obtain full-time employment. His probation was violated when he was found guilty in the present action, thereby causing the trial court to reimpose his sentence in CR 245368. Moreover, appellant's sentence for aggravated robbery was enhanced pursuant to the aggravated felony specification. He now asserts that he was "punished for the same offense and conduct when the Court reimposed the original 3-15 year term of incarceration for the Probation violation, consecutive to the - 11 - Indictment and specification for which he was convicted." Appellant thus argues he was denied his right to due process by being placed twice in jeopardy through the application of R.C. 2/ 2929.41(B)(3). The Double Jeopardy clause protects a defendant against multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717; State v. Muss (1982), 69 Ohio St.2d 515, 518, certiorari denied (1983), 459 U.S. 1200. Appellant was placed on probation as a result of an April 30, 1990 conviction for robbery. He was then found guilty of aggravated robbery and felonious assault on July 23, 1990. This court fails to find appellant has been subjected to double jeopardy as claimed by him. The trial court exercised its discretion in revoking appellant's probation and imposing the original sentence for robbery in CR 245368. See State v. Loftis (Aug. 10, 1989), Cuyahoga App. No. 55789, unreported; State v. Cionti (Apr. 27, 1989), Cuyahoga App. No. 56423, unreported; R.C. 2951.09. The trial court then followed sentencing guidelines in imposing a term of ten (10) to twenty-five (25) years for the aggravated robbery conviction based upon the violence specification. The appellant was not punished twice for the same offense and we fail to see the application of a double jeopardy argument in this case. 2/ R.C. 2929.41(B)(3) provides that a sentence of imprisonment shall be served consecutively to any other sentence of imprisonment when imposed for a new felony committed by a probationer. - 12 - Appellant's second assignment of error is overruled. Judgment reversed and the cause is remanded for proceedings consistent with this opinion. - 13 - It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, C.J., and JAMES D. SWEENEY, J., CONCUR. SARA J. HARPER 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. .