COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68690 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MASON WILLIAMS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 4, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-288957 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Thomas Conway Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Patrick E. Talty 20575 Center Ridge Road Suite 430 Rocky River, Ohio 44116-4386 -2- NAHRA, J.: Defendant-appellant Mason Williams appeals from his convictions for violations of R.C. 2923.02/R.C. 2903.01, attempted aggravated murder, with a firearm specification, and R.C. 2923.12, carrying a concealed weapon, to wit: a loaded firearm. Appellant's convictions stem from a shooting incident which occurred on March 1, 1992 outside Mr. B's bar located at 5219 Woodland Avenue in the city of Cleveland, Ohio. The incident led to appellant's indictment in two separate cases which were consolidated for jury trial, viz., CR-279654 and the instant case, CR-288957. Appellant's appeal from his conviction for the aggravated murder of Marlowe Oats in CR-279654 was previously considered by this court in App. No. 64925. In that opinion, this court initially noted appellant had failed to file a separate notice of appeal from his conviction in CR-288957 as required by App.R. 3. Thus, only his conviction in CR-279654 was considered and, ultimately, affirmed. See, e.g., State v. Fisher (1975), 46 Ohio App.2d 279. Subsequently, appellant filed a motion for a delayed appeal in the instant case. This court has granted appellant's motion and may now properly consider the merits of his appeal from the other convictions which stemmed from the March 1, 1992 incident. App.R. 5; R.C. 2505.04. The testimony of the state's witnesses at appellant's trial established the March 1, 1992 shooting incident was the result of -3- an argument which had occurred the previous evening. Sylvester Davis, the victim in the instant case, was in Mr. B's bar that night drinking with some of his friends when he noticed appellant had shoved one of them, a woman. Davis protested appellant's 1 action; appellant responded by threatening to "shoot" or "kill" Davis for his interference. The two exchanged more words before separating. Later, during the daylight hours of February 29, 1992, appellant "sent a message" to Crystal Tallie, one of Davis' friends, that he would be back at Mr. B's at midnight. That same afternoon, Tony Rice, another one of Davis' friends, noticed appellant walking in the neighborhood. When Rice stopped his car to speak with appellant, appellant "reached" for something inside his jacket, then withdrew his hand. Rice saw a handle of a gun under appellant's jacket. When Rice questioned him about his reaction, appellant stated he thought Davis was in the car and he "was gon' shoot" him. When it was midnight, Davis and some of his friends arrived at Mr. B's. Some people went inside, others, including Davis and Marlowe Oats, stayed in the parking lot west of the building. A short time later, appellant arrived in his car, which was being driven by his friend Ricardo Butler. They exited; appellant approached Davis and Oats while Butler went to speak to a girl he knew who was standing by the door of the bar. Butler had been 1 Quoted material indicates testimony given by a witness at appellant's trial. -4- there only a few minutes before appellant called to him to come "over." Butler's arrival in the parking lot apparently precipitated a fight: Oats "swung at" him and the two men began to punch each other. Davis then charged at appellant, who initially turned and ran toward the front of the bar. When he reached the doorway area, however, appellant pulled something from his jacket and turned back. Davis saw a gun in appellant's hand. Davis immediately spun around as appellant started shooting and ran back to the group of men in the parking lot. Appellant fired several times behind him. When he reached the group, Davis could see Butler was still holding Oats; Davis tried to "grab" Oats as he ran past but was unable to pull Oats away, so Davis kept going toward the back of the parking lot. Appellant ran into the group and shot Oats in the right side. Appellant and Butler then fled the scene. Police officers arrived only minutes later, since the sound of the gunfire had been heard by some who were in the area. Thus, several eyewitnesses, including Davis, spoke to the officers shortly after the incident occurred. Despite emergency treatment at a nearby hospital, Oats died of the gunshot wound. Appellant was thereafter indicted together with 2 Ricardo Butler for Oats' murder in CR-279654. 2 The record reflects Butler had a separate jury trial prior to appellant's; Butler was acquitted of the charge. -5- Later, appellant was indicted in the instant case, CR-288957, on the following charges: 1) attempted aggravated murder of Sylvester Davis, with a firearm and a violence specification; R.C. 2923.02/2903.01; felonious assault of Sylvester Davis, with a firearm and a violence specification, R.C. 2903.11; and 3) carrying a concealed weapon, to wit: a loaded firearm, R.C. 2923.12. The two cases were consolidated for a jury trial. During its case-in-chief, the state presented the testimony of thirteen witnesses. Four of these witnesses testified they had seen either all or part of the incident, viz., Crystal Tallie, Sylvester Davis, Davis' brother Cordell, and Tanya Cook. Investigating police officers Det. Gregory Kunz, Ptl. Henry Steel, Det. James Muhic and Det. Robert Moore also testified. Dr. Robert Challener, deputy coroner, stated his autopsy findings. Two police department forensic scientists, Thomas Lucey and Jeffrey Wagner, described their findings after examining gun casings found at the scene and clothing taken from Oats and Butler. Finally, Johnita Graham testified that appellant tried to coerce her into giving false defense testimony. When the state rested its case, appellant made a Crim.R. 29 motion for acquittal of the charges against him in both cases. The trial court granted the motion only as to count two in the instant case, viz., felonious assault. Appellant then presented the testimony of four witnesses in his defense, viz., his friends Ricardo Butler, Jacques Jones and -6- Yolanda Kirby, and his defense counsel. Appellant's friends essentially stated they did not see him with a gun the night of the incident; the shots must have been fired by someone else. Appellant's defense counsel disputed Graham's testimony. Thereafter, in rebuttal of Yolanda Kirby's testimony, the state recalled Det. Kunz and Ptl. Steel. In the instant case, the jury ultimately found appellant guilty of the two remaining charges, viz., attempted murder of Sylvester Davis, with a firearm and a violence specification, and carrying a concealed weapon, to wit: a loaded firearm. The trial court sentenced appellant to consecutive terms of incarceration as follows: ten to twenty-five years plus three years on count one; and two years on count three. The terms imposed were also to run consecutively with the term imposed in CR-279654. In the instant case, appellant presents the following assignment of error for review: THE COURT ERRED IN DENYING APPELLANT'S MOTION FOR ACQUITTAL WHERE THE MANIFEST WEIGHT OF THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY. Although phrased in terms of the sufficiency of the evidence, appellant essentially argues with regard to this assignment of error that the evidence regarding his guilt was incredible and unreliable pursuant to the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, therefore, the verdict demonstrates the jury was "confused" and his convictions should be reversed. Appellant's argument is unpersuasive. -7- In Mattison, this court stated that in making the determination whether the jury's decision is against the manifest weight of the evidence, several factors should be taken into account by the reviewing court. The stated factors were, however, "merely guidelines to be taken into account when weighing the evidence," and were not considered to be "hard and fast rules." Id. at 14. See, also, State v. Jordan (1992), 73 Ohio App.3d 524. The test to be applied when reviewing a claim that a conviction is against the manifest weight of the evidence was stated by the court in State v. Martin (1983), 20 Ohio App.3d 172 at 175 as follows: 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 the jury could reasonably conclude from substantial evidence that the state has proved the offense 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. -8- In his argument with regard to his assignment of error, appellant focuses on the testimony of the state's witnesses. He points to minor inconsistencies and engages in speculative interpretation; however, a thorough review of the record demonstrates appellant's convictions for attempted murder and carrying a concealed weapon were in accord with the manifest weight of the evidence. Each of the eyewitnesses present during the time of the shooting gave substantially similar versions of the incident. Davis testified that as he was chasing appellant toward the bar, appellant produced a gun from his jacket, turned and started shooting at him. Crystal Tallie testified appellant was "aiming at" Davis while running back toward the people in the parking lot. Davis' brother stated that when he heard the gunfire, he also started running, but he turned back to see appellant "with that nine shooting," and believed appellant was threatening his brother's life. Tanya Cook also saw only appellant with a gun; he was coming back toward the parking lot "firing" it. Moreover, Tony Rice testified that in the daytime hours preceding the shooting, appellant "reached" for a gun under his jacket and stated he was going to kill Davis if he saw him. The testimony of these witnesses was corroborated by analysis of the physical evidence found at the scene and by the photographs submitted into evidence and the trace evidence findings. Appellant's witnesses, on the other hand, gave testimony which was both biased and incredible. Ricardo Butler, the co-defendant -9- in CR-279654, testified there had been no argument at Mr. B's on the previous night and, further, Butler was the only witness to testify that during the incident he heard shots that sounded like they came from two guns. Jacques Jones stated he was driving his car when he heard the shooting; in response, he ran a red light, however, at the next intersection he would not make an illegal left turn. Yolanda Kirby's testimony of the events during the incident were impeached by oral statements she made that night to Det. Kunz. Appellant's witnesses did, however, corroborate some important aspects of the state's witnesses' testimony, such as the details of the fight between Oats and Butler and the people present in the area during the incident. Based upon the evidence presented, therefore, the jury could properly find that appellant attempted to cause the death of Sylvester Davis with a firearm and also carried a concealed weapon, viz., a loaded gun. State v. Woods (1976), 48 Ohio St.2d 127; State v. Kidder (1987), 32 Ohio St.3d 279; State v. Gilmore (Nov. 7, 1991), Cuyahoga App. No. 59299, unreported; State v. Griffin (Dec. 3, 1992), Cuyahoga App. No. 61436, unreported; cf. State v. Dapice (1989), 57 Ohio App.3d 99. Thus, the facts set forth in State v. Mattison, supra, are met in this case. 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 -10- 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, at 175. The verdicts of guilty were thus not against the manifest weight of the evidence. State v. Jenks, supra. Accordingly, appellant's sole assignment of error is overruled. Appellant's convictions and sentences are affirmed. -11- 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, P.J., and McMONAGLE, TIMOTHY E., 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 .