COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60937 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES L. BELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 16, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-254176 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 4403 St. Clair Avenue KATHLEEN PETERSON, ASST. Cleveland, Ohio 44103 JESSIE WILSON, ASST. Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, P.J., Defendant James L. Bell appeals from his conviction for murder with a firearm specification, and raises five errors for our review. For the reasons set forth below, we affirm. I. Following the June 6, 1990 shooting death of Richard Dowdell, defendant was indicted for one count of aggravated murder with mass murder, firearm, and aggravated felony specifications, and attempted murder with firearm and aggravated felony specifications. Defendant entered pleas of not guilty and the matter proceeded to a jury trial on October 12, 1990. For its key evidence, the state presented the testimony of deputy coroner Dr. Robert Challener, trace evidence expert Sharon Rosenberg, Patrick Miller, Robert Dowdell, Det. Thomas Lucey of the Cleveland Police Scientific Identification Unit, and Cuyahoga Metro Housing Authority patrol officer Donald Murtaugh. Dr. Challener testified that he performed an autopsy upon the decedent and ascertained that he had a series of perforating gunshot wounds to his mouth area. Based upon the configuration of the wounds and the presence of wadding, or the plastic material from a shotgun cartridge, Challener opined that the decedent died from a shotgun wound to the face which was sustained at a distance of approximately six feet from the assailant. - 3 - Sharon Rosenberg established that she tested the decedent's hands for gunshot residue and for trace metals. While the gunshot residue test yielded a negative result, the results of the trace metal test indicated that the decedent had handled a ferrous metal with both hands within a few hours of his death. According to Rosenberg, the pattern revealed by the test was consistent with the decedent having held a gun with a metal back strap. Patrick Miller testified that at around 7:00 p.m., on June 5, 1990, he observed a fight between defendant and the decedent at Morris Black Place. According to Miller, the decedent asked defendant for $9.00. Defendant indicated that he did not have the money. The decedent then beat defendant, and took his watch, stating that he would return it when defendant paid the debt. Defendant said that he would be back, then left the area. About an hour later, while Miller, the decedent, and others were playing dice, defendant returned with several others. Defendant approached the decedent and removed a gun from his coat while the others remained "a far distance" away in an alley. Miller then left the area, heard gunshots, and hid behind a van. Finally, Miller indicated that he did not see the decedent with a gun. Miller stated on cross-examination that he did not actually see defendant shoot the decedent. However, he stated that he was certain that defendant was the assailant because defendant was the only one "up on" the decedent. - 4 - Robert Dowdell, the decedent's cousin, also established that defendant and the decedent had gotten into a fight regarding money before the shooting occurred. Later, defendant approached the decedent during a crap game, said, "What's up now, m f shotgun. Defendant then asked whether anyone else wanted to die, and fired a shot at Robert Dowdell as he fled from the area. Finally, Dowdell testified that the decedent appeared to be unarmed, and that although defendant's brother Fred was present, he never saw Fred shoot. In cross-examination, Dowdell admitted that in a previous statement, he had indicated that after the shooting ceased, he returned to the area to see who had been shot. Antonio Boddie established that the decedent did own a gun and that he showed it to Boddie approximately ten minutes before the shooting. Boddie further indicated that he arrived on the scene after the shooting and observed the decedent with his arms outstretched at his sides. He did not appear to have his gun. Finally, Det. Lucey and Patrolman Murtaugh established that although .410 gauge shells were found near the decedent's body, the decedent was shot with a .12 gauge shotgun, and .410 shells do not fit into a .12 gauge shotgun. Defendant elected to present evidence and offered the testimony of Michael Beasley, and Michael Avant, in addition to his own testimony. - 5 - Beasley testified that he had friendships with both the decedent and defendant, and that he was present during the shooting incident. According to Beasley, Fred Bell, defendant's brother, approached the decedent as he was shooting dice, and asked defendant, "Which one?" In response, defendant pointed at the decedent, and Fred Bell then removed a shotgun from his trench coat and shot him. Defendant then went through the decedent's pockets, then began shooting in the air, stating, "Who else wants to die?" Michael Avant testified that Fred Bell approached the decedent with a sawed-off shotgun and asked him for his brother's belongings. The decedent then drew a gun from his right pocket and fired. This shot apparently missed its intended victim, Fred Bell, and Bell then shot and killed the decedent. Avant further testified that he did not speak with police following the incident, and decided to testify after defendant's brother Darnell told him that defendant was being charged with the killing. Finally, defendant testified that he had gotten into a fight with the decedent when the decedent demanded $9.00 as a "tax" for being in that area. When defendant denied owing the decedent any money, the decedent beat him with a 40 ounce beer bottle, kicked him, and took his watch. Robert Dowdell then tore open defendant's pants pocket searching for money. Defendant left the area, stating that he would be back. - 6 - Defendant went home, told his brother Fred what had happened, and got an ax handle intending to return to the area and "crown" the decedent. Fred admonished defendant that people in the area have guns and he put a sawed-off shotgun into a duffel bag and accompanied defendant back to the area. Thereafter, approximately ten minutes after the initial fight, defendant confronted the decedent with the ax handle. The decedent drew a gun, and Fred Bell shot him. On cross-examination, defendant admitted that after the initial fight, he did not go to his own home, but instead went to his mother's home, where Fred was. He further admitted that he knew Fred was bringing a gun to the second confrontation but he did not attempt to stop him. Finally, defendant admitted that upon his return to the area he did not see Avant or Beasley, but he did see Robert Dowdell. Following the close of all of the evidence, the jury found defendant guilty of murder, with a firearm specification, as a lesser included offense of the charge of aggravated murder, and found defendant not guilty of the charge of attempted murder. II. The first assignment of error is asserted by defense counsel and states as follows: "THE CONVICTION OF MURDER IS AGAINST THE WEIGHT OF THE EVIDENCE." In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must decide whether the - 7 - jury lost its way and created a manifest miscarriage of justice. See State v. Martin (1983), 20 Ohio App. 3d 172, 175. 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, *** "'"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, ***."'" Moreover, issues of credibility and the weight to be given evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In this case, the manifest weight of evidence presented credibly and reliably established that defendant purposely shot and killed the decedent. That is, Patrick Miller's testimony certainly and reliably established that defendant approached the victim, removed a sawed-off shotgun from his coat, and was - 8 - standing "up on" the decedent immediately prior to the close- range shooting. In addition, Robert Dowdell certainly, reliably and credibly established that he saw defendant put the gun in the decedent's face and shoot him. Defendant claims, however, that Dowdell lacked credibility because he had indicated, in his statement to police, that after fleeing from the area, he returned and asked who had been shot. As the defense chose not to introduce Dowdell's statement into evidence, the context of his ambiguous remark is not clear. Thus it is insufficient to undermine Dowdell's claim that he witnessed the shooting. Moreover, in redirect examination, Dowdell explained that his statement to police clearly indicates that defendant aimed a shotgun at the decedent's face and killed him. Defendant further contends that the manifest weight of the evidence demonstrates that Fred Bell was the actual assailant. We note, however that each of the defense witnesses who testified to this effect presented a novel explanation of the events of the evening. According to Michael Beasley, defendant pointed out the decedent to Fred Beasley prior to the shooting, and the decedent did not have a gun. According to Michael Avant, however, Fred Bell knew that the decedent had taken his brother's "stuff," and he fired upon the decedent only after the decedent fired first. Defendant, on the other hand, testified that he approached the decedent with a stick, and that Fred Bell fired his weapon after the decedent drew a weapon. Because of the conflict among each - 9 - of these accounts, the jury could reasonably determine that the evidence offered by the defense was unreliable and contradictory. In accord with the foregoing, we cannot conclude that the jury lost its way in convicting defendant of murder. The first assignment of error is overruled. III. The second assignment of error is advanced by defense counsel and states as follows: "THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT MUST ACQUIT THE APPELLANT OF MURDER BEFORE CONSIDERING LESSER INCLUDED OFFENSES, THEREBY DENYING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS." In State v. Thomas (1988), 40 Ohio St. 3d 213, the Supreme Court held that a jury is not required to unanimously agree that a defendant is not guilty of a greater offense before addressing a lesser included offense. The court stated: "Although the risk of coerced decisions may be present in any jury deliberation, we agree with the Oregon Supreme Court that the 'acquittal first' instruction exacerbates such risk. 'When the jury is instructed in accordance with the 'acquittal first' instruction, a juror voting in the minority probably is limited to three options upon deadlock: (1) try to persuade the majority to change its opinion; (2) change his or her vote; or (3) hold out and create a hung jury.' State v. Allen (1986), 301 Ore. 35, 39, 717 P. 2d 1178, 1180. Because of its potential for a coerced verdict, the 'acquittal first' instruction is improper and may not be charged to a jury in this state. Accord Tarwater v. Cupp (1988), 304 Ore. 639, 748 P. 2d 125." - 10 - Id. at 219-220. The Court then held that a jury may be instructed that it is to consider the principal charge first, and may be instructed that if it is "unable to unanimously agree that a defendant is guilty of [that] offense," it may then consider the lesser charge. Id. at 220. In this case, the court instructed the jury as follows: "If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of the offense of murder, you must find the Defendant not guilty of murder and you will proceed with your deliberations and decide whether the State has proved beyond a reasonable doubt the essential elements of the lesser offense of voluntary manslaughter." (Tr. 934) We note that this instruction is substantially similar to the instruction considered in State v. Thomas, supra, which provided: "*** if you find that The State has failed to prove beyond a reasonable doubt the element of prior calculation and design, then your verdict must be that the Defendant is not guilty of aggravated murder. "You will then proceed with your deliberations and decide whether The State has proven beyond a reasonable doubt all of the essential elements of the lesser crime of murder." We further note that the Thomas court did not find this instruction prejudicial, as it stated:. - 11 - "This instruction does not expressly require unanimous acquittal on the charged crime, but rather addresses possible disagreement by the jury on the element of prior calculation and design and a corresponding inability to reach a verdict of guilty of aggravated murder. The arguments of the parties as to the prejudicial effect, if any, of such instruction are somewhat less than clear. In our opinion, this instruction has negligible coercive potential because it speaks to the jury's inability to find, whether unanimously or not, a certain element of the greater offense. We are not persuaded that the trial court's instruction unduly prejudiced the appellee, and thus we affirm his conviction of aggravated murder." Id. By application of the foregoing, we likewise conclude that the instruction given did not expressly require the jury to unanimously acquit defendant of the charge of murder before it could consider the lesser included offense of voluntary manslaughter. Rather, this instruction was directed to the possibility that the jury may be unable to find, whether unanimously or not, that the greater offense was not proven. Our conclusion is bolstered, moreover, by the fact that the same instruction was given with respect to the jury's consideration of murder as a lesser included offense of aggravated murder, and the jury ultimately convicted defendant of this lesser offense. The second assignment of error is overruled. IV. The third and fourth assignments of error are advanced by defendant and state as follows: - 12 - "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE JURY ON AIDING AND ABETTING, ORC 2923.03(A), WHERE THERE WAS NO EVIDENCE ADDUCED AT TRIAL THAT DEFENDANT- APPELLANT KNOWINGLY OR PURPOSELY AIDED OR ABETTED THE PRINCIPAL OFFENDER FOR THE PURPOSE OF COMMITTING HOMICIDE. "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE JURY ON AIDING AND ABETTING, ORC 2923.03(A)(2), WHERE THERE WAS NO EVIDENCE ADDUCED AT TRIAL THAT DEFENDANT- APPELLANT HAD A COMMON PURPOSE WITH, AND/OR HAD ENTERED INTO A CONSPIRACY WITH THE PRINCIPAL OFFENDER TO COMMIT A CRIME, WHERE HOMICIDE IS A NATURAL AND PROBABLE CONSEQUENCE OF SUCH CONSPIRACY." As both of the foregoing have a common basis in law and fact, we shall address them together. Where the evidence adduced at trial supports alternative findings that the defendant acted as a principal offender or as an accomplice, the jury may be instructed on complicity pursuant to R.C. 2923.03. Cf. State v. Woods (1988), 48 Ohio App. 3d 1, 6-7. R.C. 2923.03 provides in pertinent part as follows: "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: "*** "(2) Aid or abet another in committing the offense; "(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense." - 13 - Thus, in order to establish defendant's complicity in the murder of the decedent, the state was required to prove that defendant aided or abetted in the murder, while acting with purpose to kill. R.C. 2923.03; R.C. 2903.02; State v. Brown (1988), 38 Ohio St. 3d 305, 318; State v. Coleman (1988), 37 Ohio St. 3d 286, paragraph two of the syllabus. To aid is to assist; to abet is to incite or encourage. State v. Sims (1983), 10 Ohio App. 3d 56, 58. Thus, an aider and abettor is: "'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.'" (Citation omitted.) Id. at 58-59. However, the mere presence of the accused during commission of a crime does not make him an accomplice. State v. Woods, supra, at 6. An aider and abettor's purpose to kill may be inferred where he engaged in a common design with others to commit the offense by force or violence. State v. Coleman, supra, paragraph one of the syllabus. This inference is not conclusive, however. R.C. 2903.01(D); State v. Coleman, supra. In this case, the trial court properly instructed the jury on complicity as the evidence adduced at trial supported alternative findings that defendant acted as a principal, or as Fred Bell's accomplice. That is, the state's evidence indicated that defendant purposely killed the decedent whereas the - 14 - testimony of the defense witnesses indicated that defendant aided and abetted Fred Bell in the killing of the decedent, and that he and Fred Bell shared a common purpose to accomplish this killing. According to defendant he left the area after being beaten by the decedent, went to his mother's home, where Fred Bell was, and told Fred what had happened. He then obtained a stick or ax handle, and accompanied Fred back to the projects, knowing that Fred had a gun. Further, according to Michael Beasley, once the two arrived at the area, Fred asked the defendant "which one" had beaten him, and defendant pointed at the decedent. Then after the shooting, defendant went through the decedent's pockets, began shooting, and asked if anyone else wanted to die. Accordingly, the evidence adduced at trial properly supports an instruction in complicity. The third and fourth assignments of error are overruled. V. The final assignment of error is advanced by defendant and states as follows: "THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT IT MUST FIND THAT DEFENDANT-APPELLANT, AS AN AIDER AND ABETTOR, INDIVIDUALLY POSSESSED THE PURPOSE TO KILL, INDEPENDENTLY OF THE PRINCIPAL OFFENDER'S CULPABLE MENTAL STATE." In its charge, the court instructed the jury as follows: "Aider and abettor. In this case, if you find that the Defendant knowingly or purposely aided, helped, assisted, - 15 - encouraged, directed, or associated himself with another for the purpose of committing a crime, he is regarded as if he were the principal offender and is just as guilty as if he personally performed every act constituting the offense." (Tr. 928). While we are troubled by the court's reference to the lesser culpable state of "knowingly," cf. R.C. 2901.22(B), we note that the manifest weight of the evidence indicates that defendant committed the offenses as a principal, and not an accomplice. - 16 - Accordingly, we cannot say that this instruction was prejudicial. The fifth assignment of error is overruled. 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 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. BLACKMON, J., and BLANCHE KRUPANSKY, J., CONCUR. JOHN F. CORRIGAN PRESIDING 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. .