COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68609 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ALLEN WILLIAMS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 7, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-306748 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. GREGORY M. TROYAN, ESQ. Cuyahoga County Prosecutor 800 Standard Building TIMOTHY DOBECK, ESQ. 1370 Ontario Street JEFFREY H. MARGOLIS, ESQ. Cleveland, OH 44113 Assistant Prosecuting Attorneys 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Allen Williams, appeals his conviction for murder and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION OF MURDER AGAINST THE APPELLANT. II. THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. IT WAS PROSECUTORIAL MISCONDUCT FOR THE PROSECUTOR TO TELL THE JURY IN CLOSING ARGUMENT THAT DEFENSE COUNSEL'S CROSS-EXAMINATION WAS DESIGNED TO THROW THEM OFF, AND IT WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT TO OVERRULE AN OBJECTION TO THE SAME, THEREBY PREJUDICING THE JURY AGAINST THE APPELLANT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On January 27, 1994, two students at Charles Mooney Middle School, Paul Wallace, age 15, and Don Braggs, age 14, had an argument after school. A bus driver broke up the altercation before it became physical, but Braggs told Wallace that it was not "over." When Braggs went home, he told his brother, Ivery Doss, about the altercation. He then telephoned Allen Williams. Braggs told Williams he intended to fight Wallace the next day and asked him to be his "backup." On the next morning, Braggs, Doss, and Williams arrived at the school. Braggs approached Wallace who was exiting a school bus. They both took off their coats and faced each other with their fists raised with the intention of fighting. After Braggs and -3- Wallace began fighting, LaSaun Bacchus, Doss, and Williams joined the fight. They all attacked Wallace. During the fight both Braggs and Wallace slipped on the icy street. While Wallace was down the four males continued punching and began kicking him. Sara Johnson tried to stop the fight but the males continued kicking Wallace. When the gum teacher and security arrived, the four males stopped. Williams yelled, "I got him," and as they were running away, Williams pulled a knife out of his coat and threw it into some nearby bushes and said, "I stuck him." Williams, Braggs, Bacchus, and Doss drove away. While in the car, Williams again said, "I stuck him." Braggs asked him, "why would you do something like that when me and LaSaun got to go to that school?" Williams laughed and said, "f--- him." EMS arrived on the scene and took Wallace to Metro General Hospital where emergency surgery was performed, but they were unable to save him, and he died. Deputy Coroner Heather Raaf M.D. was the forensic pathologist who examined Wallace. During the course of the examination, she noted ten to twelve bruises, abrasions, and contusions on Wallace's body. The deputy coroner determined they were blunt force injuries inflicted upon Wallace prior to his death. In examining his external injuries, she further determined the cause of death was a four and a half to five inch stab wound to the chest, which penetrated the left and right ventricles of this heart. She ruled Wallace's death a homicide. -4- Police found a home-made knife in the bushes with a four inch handle wrapped with duct tape and a six inch blade with both edges sharpened. Dr. Raaf testified the stab wound was consistent with the shape and dimensions of the knife that was found at the scene. Furthermore, Braggs identified it as the weapon he saw Williams throw in the bushes. Williams was indicted for aggravated murder, the case proceeded to trial, and a jury returned a verdict of guilty to the lesser included offense of murder. Williams moved for a new trial based upon newly discovered evidence, and the motion was granted. After a second jury trial, Williams was found guilty of murder and sentenced to a term of 15 years to life. This appeal followed. In his first and second assignments of error, Williams argues the trial court erred in not granting his motion for judgment of acquittal under Crim.R. 29(A), and the verdict was against the manifest weight of the evidence. The standard of review for the denial of a Crim.R. 29(A) is as follows: A motion for judgment of acquittal will not be granted unless, after viewing the evidence in the light most favorable to the prosecution, the court determines that reasonable minds could reach different conclusions about whether each material element of the crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978), 55 Ohio St.2d 261. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319. -5- The standard for reviewing the manifest weight of the evidence is as follows: "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." State v. Martin (1983), 20 Ohio App. 3d 172, 175. While this court is aware the standards of review for weight and sufficiency of the evidence are different, Williams makes essentially the same argument in both assignments of error. He asserts the evidence is insufficient as a matter of law and the verdict was against the weight of the evidence because the testimony of the eyewitnesses was not credible. Thus, the sole issue raised in these assignments of error is one of credibility. Resolving inconsistencies in the evidence and determining the credibility of the witnesses is primarily the responsibility of the factfinder. State v. DeHass (1967), 10 Ohio St.2d 230, 231. See, also State v. Jenks (1991), 61 Ohio St.3d 259, 279. "Where reasonable minds can reach different conclusions upon conflicting evidence, determination as to what occurred is a question for the trier of fact. It is not the function of an appellate court to substitute its judgment for that of the factfinder. Rather, upon appellate review, the evidence must be viewed in the light most favorable to the prosecution." Id. -6- Having viewed the testimony of the witnesses in this case in the light most favorable to the prosecution, we find competent, credible evidence to support Williams' conviction for murder, and further find the verdict was not against the manifest weight of the evidence. In his third assignment of error, Williams argues the prosecutor's comment constituted prosecutorial misconduct. The comments were Thomas Shaughnessy is "***one of the premier defense attorneys in the county***" Shaughnessy's cross-examination was designed to throw a "smoke screen" over issues not in dispute. "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. A prosecutor should be given wide latitude in closing arguments. See State v. Frambach (1992), 81 Ohio App.3d 834, 845. In reviewing whether the remarks of the prosecutor were prejudicial, this court must consider the effect the misconduct had on the jury in the context of the entire trial, and determine whether it constituted a denial of due process. See State v. Keenan (1993), 66 Ohio St.3d 402, 410. In State v. Smith (1984), 14 Ohio St.3d 13, the Supreme Court of Ohio held it was prosecutorial misconduct for the prosecutor to refer to defense evidence as "lies," "garbage," "garbage lies," "[a] smoke screen," "a well conceived and well rehearsed lie," and to intimate that defense counsel suborned perjury. Id. at 14. -7- During closing argument in this case, the prosecutor stated, "There is no evidence here about a gun. ***That's a smoke screen that has been brought to you." The prosecutor further referred to defense counsel's cross-examination as "*** a cross-examination designed to throw you off." Both the "smoke screen" reference and the "throw you off" reference made in this case are not the comments that State v. Smith had in mind as constituting reversible error. The facts in this case are established beyond a reasonable doubt that Williams stabbed Wallace. The prosecutor's comments did not suggest the defense counsel suborned perjury, but his comments were designed to redirect the jury's attention to the evidence. Under State v. Smith this is acceptable. 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 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. HARPER, J., and DYKE, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .