COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60462 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION ANTHONY LOZAR : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 21, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 247418 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Jerome Emoff Cuyahoga County Prosecutor J. Ross Haffey By: George F. Lonjak 620 Terminal Tower Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, P.J.: Anthony Lozar was indicted on two counts of aggravated murder (R.C. 2903.01) with felony-murder specifications, one count of aggravated robbery (R.C. 2911.01) and one count of aggravated burglary (R.C. 2911.11). Each count included firearm specifications. Lozar tried his case to a three- judge panel who returned guilty verdict on all counts. After hearing mitigation evidence, the panel rejected the death penalty and imposed a life sentence on the murder counts. In addition, the defendant received ten to twenty-five year sentences on the remaining counts. Lozar timely appealed his conviction. In three assignments 1 of error he challenges the sufficiency and manifest weight of the evidence as well as the denial of his suppression motion. Upon a review of the record, we affirm. Lozar's convictions arise from the shooting death of Charles J. Mitroff, Jr. Mitroff's body was discovered on December 4, 1989 buried under a bridge near 49th Street and Chard Avenue off Interstate 77. The autopsy performed by Cuyahoga County Assistant Coroner Dr. Robert Challener revealed Mitroff had been shot twice: once in the head with a small caliber bullet and once in the torso. The shot to the chest perforated Mitroff's liver and diaphragm causing massive injuries to those organs. The victim's wife, Barbara Mitroff, reported her husband missing at 6:30 a.m., December 1, 1989. Mrs. Mitroff told the court that her husband left for their Fleet Avenue Bakery at 1 See Appendix. - 2 - 11:15 p.m., November 30, 1989. Charles Mitroff intended to pick up baked goods for delivery to their customers. At 6:00 a.m. customers began to phone Mrs. Mitroff to complain they had not received any deliveries. When her phone calls to the bakery went unanswered, Mitroff telephoned bakery employee Christina Blaut. Blaut went to the bakery and observed baked goods which should have been delivered. Barbara Mitroff and Blaut then met Cleveland police at the bakery where they discovered mop strings on the floor and a reddish residue in a bucket. Mrs. Mitroff testified that only a few of the pans were cleaned. She explained that her husband hired a man named "Ed Thompson" on November 28 to wash the baking utensils and floors. On December 3, "Thompson" phoned Mrs. Mitroff and explained he reported for work November 30 but after waiting outside for Charles Mitroff for approximately thirty minutes, he left the bakery. Patrolman Charles Vorhees of the Kenton County, Kentucky Police Department testified he was on patrol at midnight, December 4, 1989 when he observed a van weaving and slowing down at intersections. Vorhees believed the driver might be intoxicated so he followed the vehicle. Officer Vorhees told the court the van's occupants leaned over as if placing something under the seats. Vorhees radioed in the license number and learned the plates were registered to another vehicle. The officer stopped the van which he noticed had been spray-painted including its parking lights and Chevrolet emblems. - 3 - The driver of the van told Vorhees his name was "Ed Thompson" but he was unable to produce a driver's license. Vorhees checked by radio the driver's purported name, birth date and social security number, and learned that Ohio had no record of a driver's license issued under the name "Ed Thompson." The passenger identified himself as Anthony Lozar and produced a birth certificate in the same name. The officer ordered the men from the van and, as they left the vehicle, Vorhees observed the butt of a rifle sticking out from under the front passenger seat. Vorhees told the men to lie face down on the ground and, while retrieving the loaded rifle, he noticed a bag with a greenish material which appeared to be marijuana. The officer also observed a rifle case behind the seats. The case contained another loaded rifle. Finally, Vorhees saw a red substance which appeared to be blood on the van's step. Officer Vorhees arrested the men and transported them to the police station where "Thompson" eventually admitted his name was Wilford Berry. A computer check of the van's VIN number revealed the vehicle was registered to Charles's Bakery in Cleveland. The officer contacted the Cleveland and Pepper Pike police departments and learned the owner of the van and the vehicle were missing. Kenton County police detective Matthew Rolfsen interviewed Lozar on December at 6:30 a.m. According to Rolfsen, Lozar initially expressed fear of Berry but was no longer upset once the officer promised to keep the men separated. Lozar told the - 4 - officer that Berry approached him a few days after Berry began working at Charles's Bakery and asked if Lozar was interested in leaving town with him. Lozar agreed to join Berry and, in anticipation of robbing Mitroff, the men purchased two weapons. At 1:30 a.m., December 1, Berry let Lozar into the bakery and told him to stand in a corner with the recently purchased SKS semi-automatic weapon. Lozar stated he shot Mr. Mitroff as he entered the bakery. The defendant was not sure if he shot Mitroff in the arm, leg or chest. While Mitroff was on the floor Berry shot him in the head with the .22 rifle. In response to the officer's inquiry, Lozar indicated the plan had been to shoot Mitroff and then rob him. According to Lozar, the men dragged Mitroff to the van and then returned to the bakery to mop the floor. The duo took some change before leaving from the bakery. Lozar and Berry buried Mitroff under a bridge on 49th Street with a shovel from the van. Lozar also admitted the men took $32 from Mitroff's body. Lozar told the officer he took license plates from a nearby vehicle and put them on the bakery van. The men then drove to a self-service car wash where they cleaned the van and left behind the shovel and other items from the van. Berry and Lozar slept in the vehicle and the next day went to a K-Mart where they bought black spray-paint to paint the van. The men spent the next night at a friend's house before leaving for Kentucky. - 5 - Based upon this information, Cleveland and Pepper Pike police officers found Mitroff's body on December 4 at the location described by Lozar. Cleveland Police Detective Samuel Reese contacted Patrick Montgomery, the owner of the American Pride Car Wash. Montgomery turned over to police a shovel, a 2 X 4, a pair of boots, and a piece of fiber boards found on the morning of December 2 in bay seven of the car wash. At trial, Montgomery testified that he observed blood on the 2 X 4 and that the bay floor contained red- covered water. On December 7, Officer Reese interviewed Lozar in Kentucky. The defendant's statement, for the most part, mirrored his earlier interview with Officer Rolfsen except Lozar claimed he aimed at Mitroff's arm or leg and did not intend to kill him. Lozar reiterated his fear of Berry and claimed to have seen Berry with a knife some time in the past. Cleveland Police Detective James Yonkers told the three- judge panel that a shell casing found on the bakery floor was fired from the semi-automatic rifle found in the van. Linda Luke of the coroner's office confirmed that blood from the van was consistent with Mitroff's blood. Lozar's brother-in-law identified the shovel found at the car wash as one he kept in his garage. Finally, Ronald McCann testified he lives two blocks from 49th Street and, after police contacted him, he discovered his vehicle's license plate had been replaced with another plate. - 6 - In his first and third assignments of error, Lozar challenges the sufficiency and manifest weight of the evidence. We will address these arguments concurrently. A challenge to the sufficiency of the evidence requires us to view the record in a light most favorable to the prosecution and determine whether rational minds could have found each material element of an offense was proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259; Jackson v. Virginia (1979), 433 U.S. 307. Our review of a challenge to the manifest weight of the evidence is broader. State v. Martin (1983), 20 Ohio App. 3d 172. As the Martin court stated: "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. 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." Id. at 75. (Citations omitted.) We are mindful that evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. Lozar argues the state failed to prove he intended to kill Mitroff as required by R.C. 2903.01(D). We disagree. In State v. Johnson (1978), 56 Ohio St. 2d 35, the Supreme Court stated: - 7 - "The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court." Id. at 38 quoting State v. Huffman (1936), 131 Ohio St. 27, syllabus paragraph four. Lozar claims he only meant to shoot Mitroff in his arm or leg and did not intend to kill him. The record demonstrates Lozar and Berry purchased two weapons a few days before the murder. Lozar admitted the plan was to shoot and then rob their victim. Lozar hid in a corner of the bakery and shot Mitroff with a high- velocity semi-automatic rifle which caused massive injuries to Mitroff. Berry then shot Mitroff in the head. The men buried Mitroff's body with a shovel belonging to Lozar's brother-in- law. Finally, Lozar and Berry made extensive efforts to escape and avoid detection. We find this compelling evidence that Lozar intended the death of Mitroff. See State v. Coleman (1988), 37 Ohio St. 3d 286, 291. We also reject Lozar's apparent claim that he was acting under a fear of Berry. Lozar expressed fear of Berry only after the duo's arrest. There is no evidence Berry somehow overcame Lozar's will and made him participate in the planning and execution of the murder. Accordingly, these assignments of error are overruled. - 8 - In his second assignment of error, Lozar asserts the court improperly denied his motion to suppress physical evidence seized from the van and his confessions. At the outset, we hold that Lozar has no standing to contest the search of the van and seizure of the two rifles. Lozar did not have a legitimate expectation of privacy in the van which was stolen from Mitroff. Thus, he cannot challenge its search. See State v. Crickon (1988), 43 Ohio App. 3d 171; State v. Bragg (June 27, 1991), Cuyahoga App. No. 58859, unreported at 10-11. See, also, United States v. Salvucci (1980), 448 U.S. 83; Rakas v. Illinois (1978), 439 U.S. 128; Katz v. United States (1967), 389 U.S. 347. Lozar also asserts Officer Vorhees's decision to stop and subsequently arrest him was pretextual. He argues his confession was the result of this illegal arrest, and, thus, inadmissible. In Terry v. Ohio (1968), 392 U.S. 1, the United States Supreme Court held that a police officer may stop an individual when the officer reasonably concludes that the person is engaged in criminal activity. The Court stated that the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. Finally, an objective standard is to be employed: "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22. - 9 - Officer Vorhees observed the van weaving and slowing down at intersections. He suspected the driver was intoxicated and followed the van. The officer then noticed the van's Ohio license plate appeared to be for a passenger vehicle. Although the officer conceded that passenger vans may display passenger tags, he believed the vehicle looked more like a delivery van. A radio check of the license plates revealed the plates belonged to another vehicle. Vorhees testified he also saw the vehicle's occupants leaning over as if placing something under the seat. We note Lozar admitted in his statement to police that he and Berry were placing the gun under the seat. Based upon these observations, we find it was reasonable for Officer Vorhees to stop the van. Upon approaching the van, the officer noticed the van appeared to have been spray-painted. The van's driver was unable to produce any valid identification or registration for the vehicle. The officer requested Berry and Lozar to exit the vehicle. We find the actions of Officer Vorhees reasonably necessary for his own safety, especially in light of the furtive gestures he witnessed before pulling the van over. Terry, supra, at 23. Once the men were out of the van, Officer Vorhees discovered the weapons. Specifically, the officer observed the butt of the .22 rifle protruding from under the passenger seat Lozar had occupied. At that point, Officer Vorhees had probable cause to arrest Lozar for carrying a concealed weapon. (Tr. 89). Thus, we find Lozar's arrest was legal. - 10 - Finally, Lozar argues his confession was involuntary. In Miranda v. Arizona (1966), 384 U.S. 436, the Supreme Court held that a custodial interrogation must be preceded by warnings to the defendant that he has the right to remain silent, that he has a right to the presence of counsel and that any statement he does make may be used against him. The accused may waive this right but the waiver must be made voluntarily, knowingly and intelligently. Id. at 444. It is undisputed that Detective Rolfsen read Lozar his Miranda rights and that Lozar signed a waiver of these rights. Lozar, nonetheless, argues Rolfsen failed to explain the meaning of the term "waiver." There is no evidence in the motion to suppress record which indicates Lozar did not understand his rights as read by Rolfsen. Thus, we reject this argument. Lozar also argues the confession was involuntary because of his fear of Berry and Rolfsen's promise that the two men would be separated. Only evidence of coercive police conduct which overcomes an accused's free will and self-determination would support a finding of involuntariness. State v. Dailey (1990), 53 Ohio St. 3d 88, 91. Lozar's fear of Berry does not constitute evidence of coercive police conduct. Nor do we find that the officer's promise to separate the two men somehow amounts to coercion. Accordingly, this assignment of error is overruled and the judgment of the trial court is affirmed. Judgment 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. FRANCIS E. SWEENEY, J., *COX, J., CONCUR. PRESIDING JUDGE ANN DYKE *(Sitting by Assignment: Judge Edward Cox of the Seventh District Court of Appeals). 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. - 12 - APPENDIX Appellant's assignments of error are: I "Appellant was convicted of aggravated murder with evidence insufficient as a matter of law thereby denying him due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution." II "The trial court erred in overruling appellant's motions to suppress physical evidence and oral and written statements thereby causing improper evidence to be admitted at trial in violation of rights guaranteed by the federal and Ohio Constitutions." III "The verdict of guilty of aggravated murder is against the weight of the evidence." .