COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 62698 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION TONEY HOOD : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 20, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-269345 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor A. STEVEN DEVER, Assistant ANTHONY KELLON, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CHARLES M. MORGAN 11510 Buckeye Road Cleveland, Ohio 44104 - 2 - O'DONNELL, J.: Appellant Toney Hood appeals his conviction for the aggravated murder of David Jones. For the reasons set forth below, we affirm. The facts at trial revealed that approximately ten-thirty in the evening on July 8, 1991, Darrell Walker and Jordan Felton, sitting on the porch at 676 East 130th Street in Cleveland, Ohio, heard people arguing and walked down the street to 691 East 130th Street, where they witnessed a heavyset, muscular, bald or short haired black man who resembled the appellant argue with David Jones, wrestle him to the ground, get on top of him, make several punching motions at his chest, and kill him (T. 223, 224, 225, 235, 259). Felton testified the altercation lasted approximately ten to fifteen minutes (T. 260). Walker testified that he heard Jones say to him, "Come here, man. Come here.", but Walker did not get involved. Then, Walker heard Jones cry out, "That's murder, Tone", and heard a chiming noise like someone dropping a metal object on the ground (T. 227, 228). Walker and Felton both testified they then saw a man who resembled appellant drive away in a gray, four-door, Chevrolet Cavalier (T. 23, 26). Paulette Brown, appellant's fiance, testified she had loaned appellant her gray 1984 Cavalier around nine-thirty that evening because appellant wanted to meet David Jones that night (T. 78). At trial, Richard Smith, David Jones' roommate, testified that approximately ten o'clock in the evening on the night of - 3 - Jones' murder, appellant came to Jones' house and left him a note asking him to call appellant about the Rib Burn-Off (T. 97, 99, 100). Because appellant told Smith he needed to see Jones, Smith told appellant he could find Jones working at Qua Buick (T. 99, 100). Detective Wilmore Larry testified that, in a statement to police, Toney Hood admitted that he went to Jones' home on July 8, 1991 around ten o'clock in the evening to discuss the Rib Burn-Off, that he called Jones at Qua Buick, that he and Jones agreed to and did meet at Popeye's Chicken, and that they ate together from approximately ten-thirty to ten fifty-five that evening (T. 298, 299). Appellant told Detective Larry that shortly after eleven o'clock in the evening, Jones drove away alone in a blue Toyota and appellant drove to the United Dairy Farmer Store on Euclid Avenue and Lee Road (T. 300). Appellant also told Detective Larry that he arrived home approximately eleven-twenty and did not see Jones again (T. 300). Detective Larry also testified that, in the course of his investigation, he discovered a brown pouch lying in the driveway of 691 East 130th which contained thirty-six dollars in cash, several credit cards and personal identification of David Jones (T. 283, 307). Detective Larry also discovered a pattern of blood splashes on the side of a 1982 Oldsmobile parked in the driveway, and a pool of blood on the sidewalk in front of 691 East 130th (T. 310, 306). - 4 - Linda Luke, an employee in the Trace Evidence Department of the Cuyahoga County Coroner's Office, performed tests on blood samples taken from David Jones, from blood found on the side of the 1982 Oldsmobile, and from blood found on the driver's-side floor mat of the Cavalier. The blood found on the 1982 Oldsmobile and on the floor mat of the Chevy Cavalier were both blood type O, and consistent with David Jones' blood (T. 178). Next, the coroner, Robert Challener, testified that six stab wounds, inflicted by an edged, pointed instrument, caused David Jones to bleed to death, two of which entered from the back to the front, one of which was four and one-half inches deep and perforated the decedent's right lung. Dr. Challener also testified that four of the wounds entered from the front to the back in the area of the heart, one of which, measuring four and one-half inches in depth, perforated the left ventricle of decedent's heart and two of which also measured four and one- half inches in depth. Dr. Challener also found Jones sustained blunt impacts to the head, trunk, and extremities with multiple abrasions on the face and body, and multiple incised wounds on both hands which were consistent with defensive-type wounds. The only defense witness, Katherine Grant Mitchell, testified that she saw appellant and David Jones at Popeye's Chicken near Superior and Euclid Avenue around ten-fifteen or ten-thirty on the evening of July 8, 1991 (T. 396, 397, 398). - 5 - She also testified that appellant and Jones, who were waiting for their order, were talking and displayed no animosity towards one another, and that they left the restaurant as soon as they got their food (T. 399, 401). At the conclusion of all the evidence, the court granted a defense request to charge the jury on both aggravated murder and murder, but declined to charge on voluntary manslaughter. The jury returned a verdict finding appellant guilty of aggravated murder. Appellant now appeals that conviction and raises three assignments of error for our review. I. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSE OF AGGRAVATED MURDER. Appellant argues that the denial of his motion for judgment of acquittal constitutes error because insufficient evidence existed to establish the element of prior calculation and design. The State claims the trial court did not err in denying the motion for judgment of acquittal because sufficient evidence existed to demonstrate that the purpose to cause the death was arrived at with prior calculation and design. The issue for this court, then, is whether the trial court properly denied appellant's motion for acquittal. - 6 - We begin our analysis with Crim.R. 29(A), which sets forth the test which the trial court must apply in considering a motion for judgment of acquittal and states in relevant part: "(A) *** The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal *** if the evidence is insufficient to sustain a conviction of such offense ***. ***" The Ohio Supreme Court held in State v. Bridgeman (1978), 55 Ohio St.2d 261, at its syllabus: "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 proven beyond a reasonable doubt." In this case, appellant is charged with the crime of aggravated murder. R.C. 2903.01(A) defines aggravated murder as follows: "No person shall purposely, and with prior calculation and design, cause the death of another." The Ohio Supreme Court has enunciated the test for prior calculation and design in State v. Robbins (1979), 58 Ohio St.2d 74, in its syllabus as follows: "3. Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." The court in State v. Jenkins (1976), 48 Ohio App.2d 99, further stated at page 102: - 7 - "The trier of fact must look to the context in which the killing occurred to determine whether there was prior calculation and design. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim was known to him whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. Those factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide." In this case, the evidence revealed, on the evening of July 8, 1991, appellant was looking for David Jones and borrowed Paulette Brown's car to find him. Appellant went to Jones' house, spoke with his roommate, Smith, and left a note for Jones to contact him. Smith testified he told appellant that he could likely find Jones at Qua Buick, and appellant left. Appellant related to Detective Larry that he in fact met Jones at Popeye's Chicken sometime around ten o'clock that evening. Two witnesses, Felton and Walker, testified that a man matching the appellant's description became involved in an altercation which lasted ten to fifteen minutes and which moved from an area in the driveway to the sidewalk in front of 691 East 130th. They also heard calls for help and the victim uttering the words, "That's murder, Tone." The coroner's testimony confirmed six stab wounds, four of which were at a depth of four and one-half inches, one of which pierced the decedent's heart. - 8 - This evidence permits the trier of fact to find that appellant knew the victim before the crime and did not have a random meeting with him and to infer the relationship had been strained and that appellant possessed a weapon at the time he encountered the decedent. Also, that the act was drawn out over a period of as many as fifteen minutes, with six separate wounds, four of which were inflicted with a thrust sufficient to perforate organs four and one-half inches within the decedent's body, and one of which pierced his heart. We therefore conclude the evidence reveals the presence of sufficient time and opportunity to plan the act of homicide and that the circumstances surrounding the killing show a scheme or plan designed to implement a calculated decision to kill. Therefore, the trial court did not err in denying appellant's motion for acquittal because the court can only grant the motion when the evidence is insufficient to sustain a conviction for aggravated murder. In this case, it is not. Accordingly, appellant's first assignment of error is overruled. II. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. Appellant believes his conviction was against the manifest weight of the evidence because no witness identified appellant, the forensic evidence did not include fingerprints, and the State - 9 - did not establish a motive for the appellant to murder David Jones. The State claims the conviction was fully supported by the evidence in this case because ample evidence existed to establish the identity of the assailant. The issue, then, for this court is whether the conviction was against the manifest weight of the evidence. We begin our analysis with State v. Martin (1983), 20 Ohio App.3d 172, in which the court set forth the test to be utilized when addressing this issue: "*** 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. ***" Id., 175. Pursuant to R.C. 2903.01(A), no person shall purposely, and with prior calculation and design, cause the death of another. In this case, although neither Walker nor Felton identified appellant, both provided a description which matched that of appellant. During police questioning, appellant admitted to being with Jones that evening around ten-thirty, which Katherine Grant Mitchell corroborated. Appellant's girlfriend, Paulette Brown, had loaned her Chevy Cavalier to appellant that night. Walker and Felton witnessed a man who resembled appellant leave Jones' house in a Chevy Cavalier, and tests performed by the - 10 - Coroner's Office found appellant's blood samples to be consistent with blood found on the floor mat of the Chevy Cavalier. Further, the autopsy revealed that Jones died as a result of six stab wounds which caused him to bleed to death. Based on our review of the record and weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, we cannot say that the jury clearly lost its way in resolving conflicts or created such a manifest miscarriage of justice that appellant's conviction must be reversed and a new trial ordered. We conclude the conviction was not against the manifest weight of the evidence. Therefore, this assignment of error is not well taken and is overruled. III. THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY BY REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER. Appellant argues the trial court erred by refusing to instruct the jury on the lesser included offense of voluntary manslaughter because sufficient evidence of provocation existed to warrant such an instruction. The State believes the trial court did not err by refusing to instruct the jury on voluntary manslaughter because no evidence existed to establish serious provocation occasioned by the victim reasonably sufficient to incite the appellant into using deadly force. - 11 - The issue, then, for this court is whether the trial court erred by refusing to instruct the jury on the lesser included offense of voluntary manslaughter. We begin our analysis with R.C. 2903.01, which defines aggravated murder and states: "(A) No person shall purposely, and with prior calculation and design, cause the death of another." R.C. 2903.03, defines voluntary manslaughter and 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." (Emphasis added). State v. Solomon (1981), 66 Ohio St.2d 214, stated in its syllabus: "2. *** an instruction on a lesser included offense should be given to the trier of fact only if, based on the evidence adduced by the state, the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required to prove the commission of the lesser included offense and for the state on the elements required to prove the commission on the lesser offense." Further, the court in State v. Shane (1992), 63 Ohio St.3d 630, stated in its syllabus: "1. Before giving a jury instruction on voluntary manslaughter in a murder case, the trial judge must determine whether evidence of reasonably sufficient provocation occasioned by the victim has been presented to warrant such an instruction. - 12 - Based upon our review of the evidence in this case, no evidence exists of any serious provocation on the part of the victim reasonably sufficient to incite the appellant into using deadly force. We further note that defense counsel requested the court to instruct the jury on the lesser included offense of murder, which the court properly entertained because of the ability of the trier of fact to find against the State on the issue of prior calculation and design. The trial court properly refused to instruct the jury on the offense of voluntary manslaughter. As such, this assignment of error is without merit and is overruled. Judgment affirmed. - 13 - 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. SPELLACY, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .