COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60578 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : TYRONE DURDEN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 14, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-255427 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES THOMAS M. SHAUGHNESSY Cuyahoga County Prosecutor 11510 Buckeye Road 8th Floor Justice Center Cleveland, Ohio 44104 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Tyrone Durden defendant-appellant, hereinafter Appellant timely appeals his conviction for voluntary manslaughter. For the reasons set forth below, we affirm. On May 6, 1990, Willie Tatum, Jr. was in his van heading eastbound on Kinsman Road, in Cleveland, Ohio. There were several people in the street at or near the intersection of East 118th Street and Kinsman Road. These facts were verified by a number of witnesses that testified during the trial. John Norris was one of those witnesses. Norris was driving his car westbound on Kinsman Road when he observed approximately six individuals on Kinsman Road and East 118th Street, two or three of which were in the middle of the street. As Tatum's van passed the group, Norris testified that one of the individuals took a swing at the van and touched it. Further eastbound on Kinsman Road, the van made a U-turn and came westbound back towards the individuals. Norris, thinking that something was about to happen, stopped his car at approximately East 117th Street and Kinsman Road and watched behind him through his car window. From where Norris was looking, he momentarily lost sight of the individuals. However, he did regain sight of the group after about fifteen seconds and when he did, there were two or three of the individuals fighting with the driver of the van. One of the individuals threw a rock toward the head of the driver of the van while the driver was on the ground. Norris could not tell from his vantage point whether the rock actually struck the driver of -3- the van. Norris also saw one of the members of the group throw a bottle at Tatum, the driver of the van, before the group ran away. Norris waited with Tatum, who was laying in the street bleeding and not moving, until an ambulance arrived. Norris did recall seeing two women on an upstairs porch near the incident scene. There were three sisters who also testified during the trial, Rhoda, Bedia, and Mori Kelley. Rhoda got out of bed and ran to the kitchen window sometime after 11:00 p.m. on May 6, 1990 when she heard someone yelling "they're around Rhoda's car." She saw six to eight guys in front of a van parked in the street. Rhoda observed one of the males swinging a stick in a downward motion but she could not see from her vantage point at whom the stick was being swung. The person swung the stick at least five times before he finally stopped and ran down the street. Rhoda Kelley called 9-1-1. Bedia Kelley ran out on to the porch after being told by one of her sister's that something was going on outside. She observed approximately six men near a van parked in the street and several of the men were tussling. It was her testimony that one of the men repeatedly beat a man in the head with a pole, while he was lying on the ground. Bedia also observed a brick being thrown at the decedent. She also heard glass breaking against the ground. Bedia also saw the group of boys run down the street after the beating of the decedent stopped. -4- Mori Kelley testified that she was home with her sisters and likewise observed a youngster beating a man with a pole. The man being beaten was lying on the ground next to a van. She testified that approximately seven young boys were standing around the victim as the one was beating him; a few of the ones standing around were throwing bottles at the victim. After the youngster struck the victim with the pole using full force about seven or eight times, he dropped the pole and picked up a bottle which he threw at the victim's head. Like her sisters, she testified that the boys eventually ran off down the street. A witness, John Lemons, also testified during the trial as well. Lemons, also known as "Kill", testified that he had been a member of the Blue Devil Crips for approximately three years and that there were approximately eighty Crip members in the Cleve- land area. He testified that Appellant, also known as "Too Down", was an "O.G." or "Original Gangster". Lemons testified that an "Original Gangster" has the responsibility to explain "literature" to other members and organize gang activities. He testified that the purpose of the Crips was to make money by selling cocaine. It was also his testimony that it is considered disrespectful if a gang member does not come to the assistance of another gang member who is in a fight. Also, if a member fails to assist the other member during the fight, he must suffer the consequence which is to be beaten by the other gang members. -5- Lemons testified that on May 6, 1990, at approximately 6:00 p.m., there was a meeting of several Crip members one of whom was the appellant. The purpose of the meeting was to form an alliance with another Cleveland gang, The Folks. Approximately two hours later and after some drinking, Appellant and about five other gang members started walking down Kinsman Road towards East 118th Street to go and fight some guys they had met earlier. According to Lemons' testimony, it was at this point that the group encountered the van driven by decedent. As the van passed them, Lemons testified that Tremayne Willis hit the side of the van. The van made a U-turn, came back, and stopped in front of the gang. The man, who ended up being the decedent, exited the van carrying a jack. Lemons testified that the man struck Willis twice in the back with the jack. The decedent also punched Willis in the mouth with his fist. Willis eventually took the jack from the decedent, Tatum. Lemons further testified that Appellant grabbed Tatum from behind his neck and forced him to lay down on the ground. Appellant then sat on top of Tatum, who was much smaller than Appellant, and consequently could not resist. Two members of the gang threw bottles at Tatum. Willis, who was being restrained, broke loose, ran to Tatum and struck him three or four times in the head with the jack very hard. While running from the scene of the incident, Lemons testified that Appellant was pounding on his chest and yelling "Blue Devil Crips." When they arrived at John Adams High School, -6- according to Lemons, Appellant told the other gang members "don't talk to nobody about what just happened." Lemons further testified that Appellant also told the other gang members "you know you were supposed to get in and help us out," referring to the beating of Mr. Tatum. (Emphasis added.) Lastly, according to Lemons, Appellant stated on the following day, "we're going to get those snitches," referring to some gang members that supposedly had been talking about the killing. Cecil Farmer testified during the trial. He, at the time of trial, had been a gang member for approximately two years. Farmer's testimony about the events leading up to the actual fight and killing were consistent with the other witnesses. He observed Tatum exit his van with the jack, strike Willis with it, and punch Willis in the mouth. Farmer testified that he had known Appellant for approximately two months. He testified that he saw Appellant grab Tatum in a full nelson hold and a couple of seconds later Tatum was lying face down on the ground. He testified that he was the person holding Willis until he broke away. At which point, Willis struck Tatum in the head with the jack, while Appellant was straddling him. Anthony Hubbard, another gang member, also testified. He had been a Crip for only a short time prior to this incident. He, likewise, testified consistently about the events leading up to the killing. Specifically, in reference to Appellant, he testified that while Willis was being restrained Appellant grabbed Tatum in a full nelson, threw him face down on the -7- ground, and told him not to move. As Willis broke loose and ran over to Tatum, Appellant stepped to the side and allowed Willis to hit the decedent. Abraham Douglas testified that he too had only been a gang member for a short time prior to this incident. Douglas' testimony was likewise consistent with the other gang members about the events leading up to the encounter with Tatum. His testimony regarding Appellant was that as Willis was being restrained, Appellant grabbed Tatum by the back of the neck, threw him face down on the ground, held him down, and told him to chill out and not to move. Douglas was unable to remember whether Willis had struck Tatum with the jack prior to Appellant throwing him to the ground. When Willis got close to Tatum, Appellant stepped to the side and allowed Willis to strike Tatum two or three times in the head region with the pole. According to Douglas, at John Adams High School, Appellant asked who didn't help and then referred to them as busters, a slang term for sissy. Douglas testified that he told the others that he believed Tatum was dead. In response to this statement, according to Douglas' testimony, Appellant said that Tatum deserved it for messing with the Crips. Douglas also heard Appellant, the next day before answering the door for the police, make the statement "nobody don't know nothing." Tremayne Willis' testimony regarding Appellant was that Appellant struck Tatum on the side of the face, which dazed him. -8- This was the only implication of Appellant, during Willis' testimony, in the beating. Appellant took the stand and testified on his own behalf. He became a Crip in October, 1989 and admitted that he held the rank of "little O.G." He testified that if a fellow Crip is losing a fight the other members are automatically supposed to help him. Appellant's testimony reflected a complete denial of his presence at the incident that resulted in the killing of Tatum. Appellant asserts as his first assignment of error the following: THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO IMPEACH HIS OWN WITNESS IN CONTRAVENTION OF OHIO RULE OF EVIDENCE 607. Appellant argues, under this assigned error, that a party may not impeach its own witness by means of a prior inconsistent statement, unless the party who has called the witness is able to show both surprise and affirmative prejudice. As this argument applies to the instant case, Appellant contends that the prosecution impeached its witness, Abraham Douglas, with a prior statement. Douglas testified on direct examination that he could not recall whether the decedent was on the ground or standing when he was struck by Willis. "The extent to which a party may refresh the recollection of his own witness is ordinarily a matter for the trial court's discretion." State v. Stearns (1982), 7 Ohio App. 3d 11, 16. Also, where a witness for the state claims a failure of memory in -9- response to questions by the prosecution, the use of his out-of- court statement, pertaining to the subject matter of the inquiry, does not infringe upon the defendant's right of confrontation or violate the rules of evidence. State v. Doherty (1978), 56 Ohio App. 2d 112, Syllabus. Evid. R. 607, upon which Appellant relies in support of assignment of error one, states as follows: The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Rules 801(D)(1)(2), 801(D)(1)(2), or 803. (Emphasis added.) Evid. R. 803(5) states the following: (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. In State v. Scott (1972), 31 Ohio St. 2d 1, the Ohio Supreme Court recognized four requirements that embody all the generally recognized standards for the admission of a statement as a past recollection recorded. The elements are (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of -10- the event, and (4) the witness must vouch for the accuracy of the written memorandum. Id. at 3. On the basis of this criteria, this court must conclude that the admission of Abraham Douglas' prior statement by the trial court was not an abuse of discretion. Evid. R. 607 expressly provides an exception for the admission of a past recollection recorded pursuant to Evid. R. 803(5). Further, State v. Doherty, supra., clearly holds that admissibility of a past recollection recorded does not violate either a defendant's right of confron- tation or the rules of evidence. Finally, the record in this case establishes that the requirements for admissibility of a past recollection recorded, as enumerated in State v. Scott, supra, were all present. Appellant had first hand knowledge of the event because he was present when Tatum was beaten to death. Second, the statement, given to the police by Appellant, was an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it. Thirdly, the record establishes that Douglas lacked a present recollection of the event. His testimony was that "he did not know and he did not recall." Fourth, Douglas vouched for the fact that his signature was on the statement indicating that it was in fact his statement and that it was true. Based on the satisfaction of these requirements and the exception drawn in Evid. R. 607 for the admission of evidence -11- pursuant to Evid. R. 803(5), Appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF VOLUNTARY MANSLAUGHTER. In support of this proposition, Appellant asserts that the evidence adduced at trial was insufficient to prove that he aided and abetted, or acted as an accessory, to the killing of Willie Tatum. In this regard, Appellant suggests that Appellee's evidence was purely circumstantial and not reconcilable with Appellant's reasonable theory of innocence that he was a mere bystander at the fight. Appellant also argues, in support of his position, that the evidence is insufficient to prove that he was holding the decedent for the purpose of subjecting him to Hitman's beating and that the evidence is consistent with Appellant holding the decedent to prevent him from fighting with Willis. There are two statutory provisions applicable to the charges that Appellant faced. The first provision is Voluntary Manslaughter, codified in R.C. 2903.03, for which Appellant was found guilty. R.C. 2903.03 states: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. The second statutory provision, germane to this case, is Complicity which is codified in R.C. 2923.03(A). It reads: -12- (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; (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. Given these two provisions, the issue raised by this assignment of error is whether the evidence was sufficient to prove that Appellant aided or abetted Tremayne Willis in the voluntary manslaughter of Willie Tatum. As the first step in the analysis of this issue, this court must recognize some basic legal principles pertaining to Complicity. The first is that R.C. 2923.03(A) requires that Appellant act with the same "kind of culpability required for the commission of voluntary manslaughter." Secondarily, the definition of the two terms aid and abet have been established by this court in State v. Sims (1983), 10 Ohio App. 3d 56. In Syllabus 2, this court stated: The definition of an "aider and abettor," within the meaning of R.C. 2923.03(A)(2), is one who assists or encourages another to commit a crime, and participates in the commission thereof by some act, deed, word, or gesture. Thirdly, "conspiracy and common purpose, among two or more persons, to commit a crime need not be shown by positive evidence but may be inferred from circumstances surrounding the act and from defendant's subsequent conduct. Participation in criminal intent may be inferred from presence, companionship, and conduct -13- before and after the offense is committed." State v. Pruett (1971), 28 Ohio App. 2d 29, 34. In the case of State v. Pruett (1969), 21 Ohio App. 2d 27, the Ohio Supreme Court relied on the following as a legal test for sufficiency of the evidence to sustain a conviction: In determining the sufficiency of the evidence to sustain a conviction, an appellate court is confined to the question of law, whether viewing the evidence in a light most favorable to the prosecution, there is substantial evidence, either direct or circumstantial, which, together with the reasonable inferences, to be drawn therefrom, sustains the conviction. Id. at 35. More recently, in the case of State v. Jenks (1991), 61 Ohio St. 3d 259, the Ohio Supreme Court stated: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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. In this case, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of aiding and abetting in the commission of voluntary manslaughter, on the part of Appellant. Appellant, according to some of the evidence admitted, assisted or encouraged Willis, in beating Tatum to death. Further, there is evidence in the record that Appellant participated in the commission of voluntary manslaughter by some -14- act, deed, word, or gesture. This becomes especially true when conspiracy and common purpose do not have to be shown by positive evidence but may be inferred from circumstances surrounding the act and from Appellant's subsequent conduct. State v. Pruett, supra. Lemons testified that it is considered disrespectful if a gang member does not come to the assistance of another gang member who is in a fight. He also testified that if a member fails to assist the other member during the fight; he must suffer the consequence which is to be beaten by the other gang members. He testified that Appellant ordered Tatum from behind to lay down on the ground and sat on top of him. After a few moments elapsed, Willis broke loose and began striking the man in the head with a jack. Lemons' testimony was also that Appellant was pounding his chest while running away from the beating yelling "Blue Devil Crips." According to Lemons, Appellant told the other gang members "don't talk to nobody about what just happened, you know you were supposed to get in and help us out, and we're going to get those snitches," in reference to some gang members who allegedly had been talking about the killing. (Emphasis added.) Cecil Farmer, a gang member, testified that he saw Appellant grab the decedent in a full nelson and a couple of seconds later Tatum was laying on the ground. At this point, Willis struck Tatum in the head with the jack and while Tatum was lying on the ground, Appellant was straddling him. -15- Anthony Hubbard, who had only been a gang member for a short period of time, testified that Appellant grabbed the decedent, threw him to the ground, and told him not to move. As Willis broke loose and ran over to Tatum, Appellant stepped to the side and allowed Willis to strike the decedent in the head. Abraham Douglas, a recently inducted gang member, testified that he was also present at the beating. His testimony regarding Appellant's involvement was similar to that of the other gang members. While Willis was being restrained, Appellant grabbed Tatum by the back of the neck, threw him face down on the ground, held him down, told him to chill out, and not to move. Douglas was ambiguous about whether Willis had struck Tatum before Appellant grabbed him. His statement to the police shortly after the incident was that Willis had struck Tatum before Appellant grabbed him. His trial testimony was that he did not know. Nonetheless, as Willis broke loose, Appellant stepped to the side and allowed Willis to strike Tatum two or three times in the head region. Once the beating was over and the group arrived at John Adams, Douglas testified that Appellant asked who did not help and then referred to them as busters, a slang term for sissy. When Douglas made the statement that he thought Tatum was dead, Douglas' testimony was that Appellant said that Tatum deserved it for messing with the Crips. Douglas also heard Appellant make the statement "nobody don't know nothing." -16- 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. Appellant is incorrect on the legal proposition that a case proven by way of circumstantial evidence must be reconcilable with Appellant's reasonable theory of innocence. In State v. Jenks (1991), 61 Ohio St. 3d 259, the Ohio Supreme Court overruled this proposition holding 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. Id. at Syllabus. There was a sufficient amount of evidence, with all the reasonable inferences that could be drawn, to convince a reasonable mind of the proof of all the essential elements of the crime which Appellant was convicted of. Of particular significance are some of Appellant's own statements after the incident, Appellant wanted to know "who did not help us." (Emphasis added.) Appellant also made the statement that Tatum deserved to die for messing with the Crips. Judgment affirmed. -17- 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. JOHN F. CORRIGAN, P.J., and JOHN V. CORRIGAN, J.*, CONCUR. PATRICIA A. BLACKMON JUDGE (*SITTING BY ASSIGNMENT: JUDGE JOHN V. CORRIGAN, RETIRED, EIGHTH 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .