COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67464 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ANTOINE CLOUD, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 15, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-306490 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: A. Steven Dever Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John J. Ricotta 1280 West Third Street Third Floor Cleveland, Ohio 44113 -2- NAHRA, J.: Defendant-appellant Antoine Cloud appeals from the jury verdict which found him guilty of one count of voluntary manslaughter. The incident which led to appellant's conviction occurred at approximately 1:00 a.m. on October 13, 1993 in the city of East Cleveland, Ohio. For about two hours previously, appellant had 1 been "socializing" in a bar with two friends, Janet Campbell and her niece, Sheila Thornton. He had decided to drive them home, using a "short cut." Thornton was in the front passenger seat; Campbell lay in the back seat. Both noticed appellant was driving "kind of fast." At the intersection of Elm and Hayden Avenues, appellant stopped at a stop sign. Several young men were standing on the corner. One of them, later identified as DeAngelo Troupe, "hollered" at appellant, berating him for his driving. Appellant shouted back. Troupe approached the car and appellant got out to meet him. Thornton noticed Troupe was carrying a gun in his hand as he came up to the car. She and Campbell both heard Troupe and appellant exchanging words while Troupe's companions tried to calm him. However, Troupe would not be placated; he told appellant to get back in the car and leave or he would "shoot it up." Troupe 1 Quotes indicate testimony given by a witness at appellant's trial. -3- moved around the car as he then told appellant he had until the count of five to get out of Troupe's "neighborhood." At that point, Thornton decided to leave. As Thornton exited the car, Campbell noticed her niece was leaving so she rose and followed. The two women began running away from the scene; however, Campbell saw Troupe was standing behind appellant's car, pointing his gun at it. Moreover, the women were still close enough to hear Troupe counting and then the sound of several gunshots. Campbell looked back to see appellant with his hands up approaching his car before she was out of sight of the scene. The women were unaware of what occurred thereafter until appellant spoke to them the next day. The gunshots were also heard by Anthony Scott and Lashawn Webb, who lived in the neighborhood and were approaching the Hayden Avenue intersection as they walked westward on Elm. From his vantage point approximately three houses away, Scott had also seen Troupe firing his gun into the back window of appellant's car. At the gunfire, Scott and Webb quickly retreated to a driveway further from the corner and continued to observe the proceedings. Appellant returned to his car as Troupe returned to his friends. Appellant then continued to drive in his original direction; Troupe got on a bicycle and began pedaling eastward on Elm Avenue toward East 141st Street and the men standing in the driveway. At that point, both Scott and Webb saw appellant's car make a U-turn in a store's parking lot and stop momentarily. The car's -4- lights went off, then it "took off" eastward down Elm Avenue. The men could see it was coming at Troupe, so they shouted at him to get out of the street. Troupe apparently became aware of the danger and attempted to get onto the sidewalk. However, the car came onto the sidewalk. Scott and Webb estimated its speed at between forty and fifty miles an hour. The car hit Troupe on his bicycle, then swerved around a utility pole. Troupe apparently flew onto the car while his bicycle went under it, but he was thrown back down as the car swerved. He attempted to get back up and run while the car then crossed the street and "slammed into" a tree. The car paused for a moment; Scott saw appellant in the driver's seat. Then, leaking transmission fluid and almost completely demolished, the car "took off" again, proceeding up to East 141st Street and then turning left. Scott and Webb went to help Troupe, who was conscious but appeared to be in shock. Scott also telephoned for an ambulance but before it arrived, Troupe's friends convinced him to come with them. Thus, by the time the police and ambulance arrived, Troupe was gone. Shortly thereafter, however, Troupe went to a hospital emergency room, where he was treated for severe head injuries and admitted. Troupe eventually went into a coma, developed pneumonia, and died three days later. Two officers of the East Cleveland Police Department responded to the scene of the incident at 1:09 a.m. Although Troupe was gone, they spoke to Scott and Webb and noticed the evidence of the events which had occurred, including tire marks, debris from the -5- bicycle, and damage to the tree. They also saw the trail of transmission fluid and followed it about a third of a mile before finding appellant's car. The car was parked on the street with its motor running and its lights on. They traced it to appellant's name and arranged to have it towed to the police impound lot. Moreover, at about 2:00 a.m., the officers also spoke to Troupe in the hospital. A few days later, after Troupe's death, the crime scene was more thoroughly examined by police investigators. Appellant was subsequently indicted by the Cuyahoga County Grand Jury on one count of murder, R.C. 2903.02. He entered a plea of not guilty and was tried by a jury. Ultimately, the jury found appellant guilty of voluntary manslaughter, R.C. 2903.03, and the trial court sentenced him to a term of incarceration of ten to twenty-five years. Appellant has filed a timely appeal of his conviction and presents the following as his sole assignment of error: TRIAL COURT ERRED AND VIOLATED THE APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL WHEN THE APPELLANT'S CONVICTION FOR VOLUNTARY MANSLAUGHTER WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Relying primarily on his own testimony at trial, appellant argues the weight of the evidence in this case proves that the death of Troupe was the result of only an accident rather than of intentional conduct on his part. He contends evidence of a "desire" to kill Troupe, on the other hand, was equivocal. This court has thoroughly examined the record and does not agree. -6- In State v. Martin (1983), 20 Ohio App.3d 172 at 175, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks (1991), 61 Ohio St.3d 259. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The jury found appellant guilty of voluntary manslaughter in violation of R.C. 2903.03, which states in pertinent part as follows: 2903.03 Voluntary manslaughter. (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. -7- The physical evidence gathered at the scene, the photographs taken at the impound lot of appellant's car, and the testimony of Scott and Webb all supported the jury's conclusion that a purposeful killing of the victim occurred in this case. The police officers who investigated the incident were united in their agreement that appellant's car traveled in a straight line for approximately two hundred and forty feet along the sidewalk. Moreover, they agreed that in the vicinity of where the victim must have been hit, the tire marks indicated the car swerved only to avoid a telephone pole. The tire marks also indicated the car was accelerating as it traveled toward the point of impact. The paint chips found on the underside of appellant's car revealed the victim's bicycle was "entirely run over," lodging directly under the car; only "pieces" of it were left at the scene. All of the officers testified there was no evidence of any braking; rather, the tire marks indicated the car was traveling at a high rate of speed. The physical evidence thus supported the eyewitness testimony of Scott and Webb, both of whom reported the car came directly at the victim, accelerated as it came, and hit him while traveling between forty and fifty miles an hour. The damage to appellant's car also supported the testimony of these witnesses, since after hitting the victim and "slamming into" a tree, appellant's car was "totaled;" i.e., its front windshield was smashed, the passenger side was demolished, the rear axle was broken, the underside was scraped and the transmission was damaged. -8- Appellant testified that he was not bothered by either the victim's words or by the victim's action of shooting up his car. He stated he turned around and came back down Elm Avenue merely to find Campbell and Thornton. He stated he was fired upon by someone as he traveled and had ducked behind the dashboard and "mashed the accelerator" only to get out of danger. Appellant's testimony, however, was in large part incredible when compared to the physical evidence. Appellant stated he did not feel the impact of the car hitting the victim and his bicycle, that he must have "jerked" the wheel just when it was approaching the telephone pole, that he left the area only to "clear his head" although he was not injured, and that his car "stalled" so he simply abandoned it. Moreover, appellant's testimony was rebutted by the testimony of Sheila Thornton, who admitted she gave the police a written statement in which she related appellant told her the day after the incident but before the victim died that Thorpe "made him eat dirt" and appellant "wasn't going to let him get away with it." She stated appellant told her he "really ran him over" and his bike was "the only thing that possibly saved his life." Under the circumstances, it was well within the province of the jury to choose to believe the testimony offered by the state and reject that of appellant. State v. DeHass, supra. Based upon the evidence presented, the jury could properly find that appellant knowingly caused the death of DeAngelo Troupe while under the influence of sudden passion or in a sudden fit of -9- rage brought on by Troupe's serious provocation which incited appellant into using deadly force. The state presented reliable credible evidence of appellant's guilt, and this court declines appellant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. This court, therefore, cannot say that on the basis of 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." State v. Martin, supra. The verdict of guilty of voluntary manslaughter was thus not against the manifest weight of the evidence. See, e.g., State v. Muscatello (1978), 55 Ohio St.2d 201; construed and modified, State v. Rhodes (1992), 63 Ohio St.3d 613; State v. Asberry (1989), 64 Ohio App.3d 314; cf., State v. Tyler (1990), 50 Ohio St.3d 24. Accordingly, appellant's sole assignment of error is overruled. Appellant's conviction is affirmed. -10- 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. DYKE, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .