COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68227 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM BUFFORD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OCTOBER 26, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-313744 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. DAVID T. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue CRAIG T. WEINTRAUB, ESQ. Cleveland, OH 44103 Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, C.J. A jury found defendant William Bufford guilty of two counts of felonious assault, in violation of R.C. 2903.11, each count containing a firearm specification. In this appeal he complains (1) the trial court erred by refusing to divulge the identity of a state informant, (2) prosecutorial misconduct in closing argument, and (3) the weight of evidence. The charges arose from a driveby shooting in the city of Cleveland. The state presented the testimony of the victims, Richard Akoff and Lorenzo Prater, both of whom believed the assault was gang-related. They testified they were walking to Prater's house at about 2:30 a.m. when a maroon car pulled along side. Both victims saw a chrome-plated revolver emerge from the front passenger window. The gunman fired four shots, one of which struck Akoff in the mouth. Akoff fell to the ground, looked at the maroon vehicle and recognized defendant as the assailant. Prater fled the scene and could not positively identify the assailant. While Akoff received treatment at an area hospital, he wrote down defendant's alias as the name of the assailant and gave it to Prater. Prater passed this information along to the police. The police subsequently confirmed defendant's identify as the perpetrator in an interview with Akoff and by way of an informant. During questioning, the police photographed defendant's tatoos, one of which bore his alias. - 3 - Akoff and Prater both knew defendant and were aware he belonged to a local branch of the Folks gang. Akoff saw defendant and his brother (also a gang member) driving a gray Oldsmobile twice earlier on the day of the shooting--once at noon and again at midnight. Both times defendant and his brother drove by slowly, a tactic Akoff understood the gang commonly used as a form of intimidation to persuade others to join the gang. Akoff testified he steadfastly refused to join a gang, while Prater stated he had recently left a different branch of the Folks gang. Defendant testified and denied any complicity in the shooting. He maintained he had been at home when the shooting occurred and had, in fact, heard several shots fired the evening in question. He maintained he quit his gang after a gang peace summit prior to the shooting and had no reason to fire a gun at anyone. He further denied ever trying to recruit anyone into the gang. I The first assignment of error is the trial court erred by refusing to force the state to divulge the identity of an informant who identified defendant as the assailant. During direct examination, a police detective testified to receiving this information, but the trial court sustained the state's objection to divulging the identity of the informant because it would "cause a risk of harm to the informant" if the detective disclosed the name. Defendant maintains the court's ruling not only deprived him of his right to cross-examine his accuser, but conveyed to the jury the - 4 - court's belief that defendant might retaliate against the informant. "The identity of an informant must be revealed to a criminal defendant when the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges." State v. Williams (1983), 4 Ohio St.3d 74, syllabus. When the informant acts as a mere tipster, disclosure is not required. State v. Parsons (1989), 64 Ohio App.3d 63; State v. Feltner (1993), 87 Ohio App.3d 279, 282. It is only when the informant's degree of participation is such the informant becomes a state's witness is disclosure suggested. Williams, supra, at 76. We review the trial court's rulings on these issues for an abuse of discretion. Feltner, supra; State v. Roberts (Feb. 9, 1995), Cuyahoga App. No. 66692, unreported. During direct examination, the police detective made only a passing reference to information obtained by the informant. He stated he received a telephone call that substantiated information he received from both Akoff and Prater. During cross-examination, the detective stated the informant was the only other witness to the shooting. Defendant has failed to show the informant's degree of participation was such that he became a state's witness. The circumstances indicate the police used the informant solely to corroborate Akoff's identification, not to establish defendant's - 5 - identity in the first instance. Since Akoff and Prater both testified and established the elements of felonious assault, the informant's identity would not have been particularly beneficial to the defense. Under the circumstances, we find the trial court did not abuse its discretion by refusing to disclose the identity of the informant. Furthermore, the trial court did not commit prejudicial error by sustaining the state's objection to disclosure in the presence of the jury. The court asked the detective, "Is this going to cause a risk of harm to the informant if you disclose the name?" before sustaining the objection. Nothing in this statement can be construed to indicate defendant himself had a propensity for violence. The first assignment of error is overruled. II The second assignment of error raises a claim of prosecutorial misconduct. During closing argument, the state made the following remarks: "Its very clear the divisions that have occurred in someone's life, particularly in the defendant's life. Akoff is a kid who was subjected to his community and tried to avoid the violence. The defendant injected himself into his community and wanted to participate in the violence and be a part of it and a presence in his community. *** To dominate people, to have the power. The power has to stop. You folks are duty-bound, duty-bound to stop this. It's time we put an end to this. Defendant maintains this argument urged the jury to convict him because he was a gang member. - 6 - The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 165; State v. Smith (1984), 14 Ohio St.3d 13, 14-15. Although a certain degree of latitude is permitted during summation, State v. Libertore (1982), 69 Ohio St.2d 583, 589, the state "must avoid insinuations and assertions calculated to mislead." Lott, supra, at 166. The prosecutor should not have told the jury it was duty bound to convict defendant. State v. Hicks (1989), 43 Ohio St.3d 72, 76; State v. Davis (1978), 60 Ohio App.2d 355, 361-362. However, we must review the prosecutor's argument as a whole. Id., citing State v. Burgun (1978), 56 Ohio St.2d 354, 366. In doing so, we are convinced the remarks were not prejudicial, particularly since the jury had relevant, material and competent evidence upon which to base its verdict. The second assignment of error is overruled. III The third assignment of error questions the weight of the evidence supporting the convictions. Defendant challenges the reliability of Akoff's identification, particularly when the state failed to substantiate that identification with physical evidence. When reviewing claims challenging the weight of the evidence supporting a conviction, we are mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for - 7 - the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The jury obviously placed great weight on Akoff's unerring identification of defendant as his assailant. Akoff made the identification at the first possible opportunity, calling the assailant "Monroe," a name that not only matched defendant's alias, but a tatoo on defendant's right arm. This identification was bolstered by the fact that Akoff testified he saw defendant twice before on the day of the shooting. Given these facts, we conclude the jury chose to believe Akoff's testimony and discredit defendant's testimony. The third assignment of error is overruled. Judgment affirmed. - 8 - 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. JAMES D. SWEENEY, J. PATRICIA BLACKMON, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON 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, .