COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60468 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TREMAYNE WILLIS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-255,427A JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN A. GHAZOUL, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL MURMAN Attorney at Law 14701 Detroit Avenue, #555 Lakewood, Ohio 44107 - 2 - FRANCIS E. SWEENEY, P.J.: After a jury trial, defendant-appellant, Tremayne Willis, was found guilty of voluntary manslaughter (R.C. 2903.03). Appellant now timely appeals, raising five assignments of error for our review. For the reasons set forth below, we affirm the judgment of the trial court. The pertinent testimony adduced at trial is as follows: Dr. Elizabeth Balraj, the Cuyahoga County Coroner, testified that the victim, Willie Tatum, Jr., died of extensive hemorrhag- ing of the brain, which was caused by multiple blunt impacts to the head. She testified that the tire jack, marked as State's Exhibit 19, could cause the type of injuries suffered by the victim. John Norris, a witness, testified that on the evening of May 6, 1990, he was driving westbound in the vicinity of East 118th and Kinsman Avenue. He observed two or three individuals in the middle of Kinsman. One took a swing at a van that was going eastbound. The van made a U-turn and headed back toward the individuals. Mr. Norris stopped his car at approximately 117th and Kinsman and looked back out his car window. He saw approxi- mately five or six individuals in the area. Two or three indi- viduals went toward the van and were observed fighting with the - 3 - driver of the van. One individual was trying to pull the other off the driver. The individual broke loose, picked up a rock, and threw it down toward the victim's head. The individual then picked the rock up and hit the victim a second time. Mr. Norris observed another individual throw a bottle at the victim. Mr. Norris hollered at them to let the guy go, and the group ran off. Rhoda Kelley testified that she was in her house at East 118th and Kinsman on the night of the incident. Someone yelled, "They're around Rhoda's car," and she ran to the window and observed six to eight individuals around a van parked in the street. One individual was swinging a stick-form item in a downward motion. Another individual pulled him back at least two times. When he stopped swinging, the group ran off. Bedia Kelley testified that she was in her home on East 118th and Kinsman with her sisters on the night of the incident. She went out to her porch and observed one individual in the group beating the victim on the side of the van with a stick or a bar. This individual hit the victim many times. She also saw somebody throw a brick and heard bottles breaking on the ground. Mori Kelley testified that she went to her kitchen window on the night of the incident and observed an individual hitting a person, who was lying on the ground, with a metal pole. Another individual tried to pull the assailant away from the victim, but he broke loose and continued to hit the victim. After hitting - 4 - the victim seven or eight times, the assailant picked up a bottle and threw it at the victim's head. She observed several individ- uals throwing bottles. When a car pulled up, they all ran off. John Lemons, a member of the Blue Devil Crips, testified that at approximately 5:00 p.m. on the evening of the incident, several Crip members, including appellant (a.k.a. Hitman), gathered for a meeting. Approximately forty-five minutes later, several members bought some beer and started drinking, and appellant appeared to be drunk. When a group of six of the members, including appellant, were walking down Kinsman Avenue, a van drove past them. The appellant hit the side of the van, and the van made a U-turn and stopped in front of the gang. The driver exited the van carrying a jack. The victim hit the appellant twice in the middle of the back with the jack. Appel- lant turned around, and the victim hit the appellant in the mouth with his fist. Appellant took the jack away from the victim and began hitting him in the head with the jack. One gang member, Cecil Farmer, attempted to restrain the appellant, but he contin- ued to strike the victim's head, hitting him hard three or four times. Cecil Farmer, a.k.a. C-Low, testified that six gang members were crossing the street at East 118th and Kinsman Avenue when the victim drove by in his van. Mr. Farmer knew the victim by his nickname "Black." The victim made a U-turn in his van and headed back toward the Crip gang members. Mr. Farmer observed - 5 - the victim hit appellant in the buttocks with a jack and then hit him with his fist. The appellant wrestled the jack from the victim. Another gang member, co-defendant Tyron Durden, grabbed the victim in a full-nelson, and seconds later, the victim was lying face down on the ground. Appellant broke loose of Mr. Farmer's hold and hit the victim hard in the head with the jack several times. Two additional gang members, Anthony Hubbard (a.k.a. Sneaky- Loc) and Abraham Douglas (a.k.a. Little Abe) corroborated the tes-timony of John Lemons and Cecil Farmer regarding the events of the night in question. They both testified that the appellant hit the victim's head with a pole while the victim was lying face down on the ground. Appellant testified in his own defense that the victim hit him with the jack twice in the back and hit him with his fist. The appellant took the jack away from him and hit the victim with the jack, causing him to fall to the ground. Another gang member started kicking the victim and dropping bottles on his head. Two other members dropped bricks on the victim's head. The appellant's mother testified that her son was frequently the victim of assaults and had to be transferred from various schools on several occasions. Based upon the above evidence, the jury found appellant guilty of voluntary manslaughter (R.C. 2903.03). Appellant now - 6 - timely appeals, raising five assignments of error for our review. ASSIGNMENT OF ERROR I THE JUVENILE COURT ERRED IN RELINQUISHING JURISDICTION OVER APPELLANT AND DETERMINING HE WAS NOT AMENABLE TO REHABILITATION IN VIOLATION OF RULE 30 OF THE OHIO RULES OF JUVENILE PROCEDURE. Appellant contends that the trial court should have deter- mined that he was amenable to rehabilitation based on the factors listed in Juv. R. 30(E) and the evidence presented at the bindov- er hear-ing. This argument is without merit. In making an assessment of the probability of rehabilitating a child within the juvenile justice system, the juvenile court "enjoys wide latitude to retain or relinquish jurisdiction and the ultimate decision lies within its sound discretion." State v. Watson (1989), 47 Ohio St. 3d 93, 95. "There is no require- ment that each, or any, of the five factors in Juv. R. 30(E) be resolved against the juvenile so long as the totality of the evidence sup-ports a finding that the juvenile is not amenable to treatment." Id. The seriousness of the alleged offense may be considered when determining if the juvenile is not amenable to care or rehabilitation in the juvenile justice system. Id. At the bindover hearing, two psychological reports were admitted into evidence which showed that appellant has the abili- ty to achieve academically; however, his attendance at school is - 7 - very poor. Appellant has moved a lot with his mother and two younger sisters due to peers fighting with him although he claims that he has not provoked any fights. Appellant has no prior juvenile court record. Balancing all of the factors in Juv. R. 30(E) and consider- ing the violent nature of the crime, the juvenile court deter- mined that appellant was not amenable to the juvenile system and that the safety of the community requires that appellant be locked up longer than age twenty-one. In the present case, appellant was the prin-cipal actor responsible for the victim's murder by repeated fatal blows to the head with a tire jack. The appellant was seventeen years old, and the time available to accomplish his rehabilitation was less than four years. Balanc- ing these facts with any favorable testimony presented at the hearing, we find that the juvenile court did not abuse its dis- cretion in concluding that appellant would not be amenable to rehabilitation in the juvenile justice system. Assignment of Error I is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE MAXIMUM TERM OF INCARCERATION WITHOUT CONSIDERING ALL MITIGATING EVIDENCE. Appellant argues the trial court erred in sentencing appel- lant to the maximum term of incarceration without considering all - 8 - miti-gating criteria set forth in R.C. 2929.12. This argument is with-out merit. A trial court has broad discretion in sentencing a defen- dant, and a reviewing court will not interfere with the sentence unless the trial court abused its discretion. State v. Yontz (1986), 33 Ohio App. 3d 342. Although statutory sentencing criteria must be considered by the court before imposing sen- tence, there is no requirement that the court state in the record that it considered the criteria. State v. Bivens (1988), 49 Ohio App. 3d 75. In the present case, we cannot find that the trial court abused its discretion in imposing the maximum sentence where the trial court took into consideration the brutal nature of the crime committed by appellant. The sentence was within statutory limits, and there is no indication that the court failed to consider the factors set forth in R.C. 2929.12. Accordingly, Assignment of Error II is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED IN OVERRULING APPEL- LANT'S MOTION FOR SEPARATE TRIALS AND FOR A CONTINUANCE AND THEREBY DEPRIVED APPELLANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLA- TION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. - 9 - Appellant argues that he was denied effective assistance of trial counsel since his attorney was given only eleven days to pre-pare for trial. This argument is without merit. In order to demonstrate a claim of ineffective assistance of counsel, the appellant must show that (1) defense counsel's per- formance at trial was seriously flawed and deficient and (2) the result of the trial would have been different if defense counsel had provided proper representation at trial. Strickland v. Washington (1984), 466 U.S. 668. Courts look to the time that counsel has been given to consult with the client as a critical criterion in scrutinizing claims that counsel was ineffective because lately appointed. State v. Emory (1983), 12 Ohio App. 3d 41. In the present case, the record indicates that defense counsel was given a thorough pretrial with generous discovery of the prose-cution's file. In addition, the trial court informed defense coun-sel that she would grant him a recess during trial if counsel needed time to speak with any of the witnesses or to do any type of investigation. Therefore, we find that appellant was not denied his right to effective representation of counsel. Assignment of Error III is overruled. ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S MOTION FOR ACQUITTAL WHEN THE STATE RELIED ON CIRCUMSTANTIAL EVIDENCE WHICH - 10 - WAS AS CONSISTENT WITH A THEORY OF INNOCENCE AS A THEORY OF GUILT. ASSIGNMENT OF ERROR V THE JURY'S VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the trial court erred in denying his Rule 29 motion for acquittal and that his conviction was against the manifest weight of the evidence. These arguments are without merit. Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 261. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a rea-sonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. Where the record shows that a conviction was based upon sufficient evi- dence, an appellate court may not reverse the verdict of the trier of fact. State v. DeHass (1967), 19 Ohio St. 2d 230, 231. - 11 - The voluntary manslaughter statute (R.C. 2903.03) states, in pertinent part, that no person, while under the influence of sudden passion or in a sudden fit of rage, shall knowingly cause the death of another. Based upon the testimony of several eyewitnesses who ob- served appellant strike the victim's head with a tire jack at least three times, along with the coroner's testimony that the victim's death resulted from several impacts to the head with a blunt object, we find that reasonable minds could find that the state proved that appellant caused the death of the victim beyond a reasonable doubt. Therefore, the trial court did not err in denying appellant's motion for acquittal. Furthermore, we con- clude that competent, credible evidence exists to support that appellant was guilty of voluntary manslaughter (R.C. 2903.03). Thus, the verdict was not against the manifest weight of the evidence. Assignments of Error IV and V are overruled. Judgment affirmed. - 12 - 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 Cuyahoga County Court of Common Pleas 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. DYKE, P.J. COX, J.* CONCUR JUDGE FRANCIS E. SWEENEY *Sitting by Assignment: Edward A. Cox, Judge of the Seventh Dis- trict 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 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. .