COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68963 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT YOUNG : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 22, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-318558 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: SCOTT SALISBURY (#041024) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN P. PARKER (#0041243) 4403 St. Clair Avenue Cleveland, Ohio 44103 - 2 - SPELLACY, C.J.: Defendant-appellant Robert Young appeals convictions for one count of aggravated assault in violation of R.C. 2903.12 and one count of felonious assault in violation of R.C. 2903.11. Appellant raises the following assignments of error upon appeal: I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT AND IT WAS PLAIN ERROR AND A VIOLATION OF DUE PROCESS UNDER THE OHIO AND FEDERAL CONSTITUTIONS TO INSTRUCT THE JURY ON AIDING AND ABETTING. II. THE FELONIOUS ASSAULT VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. Finding none of the assignments to have merit, we affirm the decision of the trial court. I. Young was indicted on two counts of felonious assault in violation of R.C. 2903.11 with two violence specifications and a firearm specification in count one; and a violence specification and firearm specification in count two. A jury found Young guilty of aggravated assault without a firearm specification in violation of R.C. 2903.12 in count one; and felonious assault without a firearm specification in violation of R.C. 2903.11 in count two. The trial court imposed consecutive sentences of six (6) months for the offense of aggravated assault in violation of R.C. - 3 - 2903.12, and three to fifteen years for the offense of felonious assault in violation of R.C. 2903.11. II. Evidence adduced at Young's trial reveals the following: In the early evening hours of June 19, 1994, Defendant- Appellant Robert Young was standing in front of a video store in the area of 96th Street and St. Clair Avenue in Cleveland, Ohio. As Young was standing in the area of East 96th St. and St. Clair Avenue, he made vulgar and crude comments to two young girls who had passed by him. Upon hearing the comments, Darrell Solomon, a local shop owner, approached Young and asked him why he was making the comments. Young then called Solomon a "bitch" and Solomon said "I'll show you what a bitch is." (TR. 299). Solomon slapped Young in the mouth and a fight between the two men ensued. The altercation between Young and Solomon lasted for approximately fifteen minutes, during which time John Benson, a cousin of Solomon's, tried to break up the fight. After the altercation ended, Benson began walking to a nearby store. Young and Solomon continued to exchange words. Young then began to run down St. Clair toward 95th Street and stated to Solomon "I'll be back. When I get back, my nigger is going to pop you." (TR. 304). Approximately three to five minutes later, Solomon observed Young running back toward him with Michael Grayes following. Solomon then called Benson to come back. At this time, a second altercation between Young and Solomon ensued. - 4 - During this second altercation, Benson asked Grayes to help him break up the fight. Benson bent down to pull Young off of the ground and noticed that Grayes was not helping. As the fight ended Solomon got up off of the ground and Grayes began to approach him. Solomon extended his arm and told Grayes "you don't have anything to do with it." (TR. 310). Grayes then pulled out a gun and shot Solomon in the chest. Solomon turned and ran away from Grayes who then fired a second shot hitting Solomon in the arm. After Grayes fired the second shot, he turned and approached Benson who had previously heard Solomon yell "he got a gun. He got a gun" (TR. 211), at which point Benson had grabbed Young under the arms and placed him in front of himself for protection. Benson testified that Grayes then pointed the gun at Young and said, "Move out the way. Move out the way. I'm going to shoot him. I'm going to kill him. Move out the way." (TR. 211). Benson, however, made his way to the corner of a building where he dropped Young and began to run down 96th Street. As Benson was running, Grayes fired three more shots, none of which, however, hit Benson. Benson further testified that Grayes had also run down 96th Street, but that he was not sure where Grayes actually went after the shootings. III. In his first assignment of error, defendant-appellant Young contends that there was insufficient evidence to sustain his - 5 - conviction for felonious assault; and that it was plain error for the trial court to instruct the jury on aiding an abetting. A. In reviewing sufficiency of the evidence, this court is bound by State v. Jenks (1991), 61 Ohio St.3d 259. In Jenks, the Ohio Supreme Court set forth the proper standard of appellate review for determining sufficiency of the evidence questions. The relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant quilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. Jenks, 61 Ohio St.3d at 273. Defendant-appellant Young contends that evidence presented to the jury was insufficient to sustain his conviction for felonious assault. Pursuant to R.C. 2903.11(A)(1)(2), "a person is guilty of felonious assault if he knowingly caused physical harm to another; or knowingly caused or attempted to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code." Although Young contends that the evidence does not demonstrate that he knowingly caused or attempted to cause physical harm to another by means of a deadly weapon, the jury was charged on the law of aiding and abetting. R.C. 2923.03(A)(1)(2) states that no person, acting with the kind of culpability required for the - 6 - commission of an offense, shall do any of the following: (1) solicit or procure another to commit the offense; or (2) aid or abet another in committing the offense. "Evidence of aiding and abetting another in the commission of crime may be demonstrated by both direct and circumstantial evidence. Thus, [p]articipation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed." State v. Cartellone (1981), 3 Ohio App.3d 145. In the case sub judice there was evidence from which a reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Young's conduct prior to the shootings, beginning with leaving the original fight with Solomon and telling Solomon that he was going to pop him, meaning shoot him, supports an inference that Young had the intent to cause or attempt to cause physical harm with a deadly weapon. In addition, Young's action of bringing Grayes back to the area where he initially fought with Solomon, and his second fight with Solomon further supports the assertion that Young knowingly intended to cause physical harm. This evidence was sufficient to support a finding that appellant aided and abetted Grayes in committing the crime and, thus, he is considered to have committed the crime himself. See R.C. 2923.03. B. Young asserts that it was improper for the trial court to instruct the jury regarding the law on aiding and abetting a crime. - 7 - Young did not object at trial to the jury instruction, and therefore must argue that the trial court's instruction was plain error under Crim. R. 52(B). Generally, if a party fails to object to a jury instruction, the right to object is waived absent the existence of plain error. State v. Long (1978), 53 Ohio St.2d 91. Crim. R. 52(B) provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The courts' power to notice plain error, however, "is one which courts exercise only in exceptional circumstances, and exercise cautiously even then." Long, 53 Ohio St.2d at 94. "A court's instructions to the jury should be addressed to the actual issues in the case as posited by the evidence and the pleadings." State v. Guster (1981), 66 Ohio St.2d. 266, 271. As stated previously, evidence was adduced at trial to support an instruction of aiding and abetting. Based on the evidence adduced at trial, reasonable minds could have found Young guilty aiding and abetting Grayes in the commission of the felonious assault on Benson. The trial court appropriately used its sound discretion in instructing the jury on the law of aiding and abetting a crime. The trial court was neither unreasonable, nor arbitrary, nor unconscionable in its decision. Therefore, where Young failed to object when the trial court instructed the jury on aiding and - 8 - abetting, any error which may have occurred with respect to the jury instruction was waived absent plain error. Defendant-appellant's first assignment of error is without merit. IV. In his second assignment of error, Young contends that the felonious assault verdict was against the manifest weight of the evidence. Young argues that the co-defendant was on a frolic of his own and that the evidence does not support any theory of guilt with respect to Benson. A reviewing court will not reverse the verdict of the trial court where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense had been proved. State v. Eley (1978), 56 Ohio St.2d 169. It is the trier of facts who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. An appellate court may not substitute its own judgment for that of the finder of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. There was testimony that Young made a comment to Solomon that he would be back to shoot him, as well as testimony that Young actually left the area where the fight had originally been and returned a few minutes later with Grayes. The fact that Grayes was carrying a gun and had followed Young back to the fight is further evidence of Young's involvement in the felonious assault. - 9 - There was ample evidence present of such quality for the jury to have concluded Young was aiding and abetting Grayes and there- fore guilty of the crime charged. Defendant-appellant's second assignment of error is overruled. Judgment 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. TERRENCE O'DONNELL, J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .