COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69250 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WAYNE WALKER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JUNE 6, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-314816 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public RICHARD J. BOMBIK, ESQ. Defender Assistant County Prosecutor ROBERT R. CLARICO, ESQ. 8th Floor Justice Center Assistant Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, OH 44113 1200 West Third Street Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant Wayne Walker ("defendant") appeals from a jury verdict finding him guilty of violating R.C. 2911.01, aggravated robbery and violating R.C. 2923.13, having a weapon while under a disability. The jury found the defendant not guilty of aggravated murder. Marvin Rox, the victim, was shot to death during the commission of a robbery. Jason Howard ("Howard"), Nathaniel Howard, and defendant, were each indicted and received separate trials. A fourth participant, Lavelle Eaves ("minor"), was bound over by the Juvenile Division to be tried as an adult. In separate trials a jury found Jason Howard guilty of aggravated murder and aggravated robbery with firearm specifications. Nathaniel Howard pled guilty to aggravated robbery with a firearm specification and to having a weapon while under a disability and minor pled guilty to aggravated murder. On September 22, 1994, shortly after midnight, four individuals armed with guns approached the parked vehicle in which the victim was sitting. The victim was ordered to get out of the vehicle and lay face down on the sidewalk while two of the individuals searched his pockets. The victim was then fatally shot five times. A coroner testified regarding the autopsy that was performed on the victim. The coroner concluded that the victim died as a - 3 - result of gunshot wounds to his head, trunk and upper extremities with skeletal, visceral and soft tissue injuries. An eyewitness was Carla Richardson, a 15 year old, who was friends with people in the neighborhood. Richardson testified she was sitting in the car with the victim and another friend when the four assailants approached the car. Richardson identified the two assailants who were not wearing facemasks as Nathaniel Howard and the minor. She stated she also knew the other two, Jason Howard and defendant who were wearing facemasks, because she had seen them on prior occasions and thus recognized their voices and physical dimensions. The four assailants allowed Richardson to leave but as she was leaving she saw the minor and defendant searching the victim's pockets while Jason and Nathaniel Howard were standing to one side. Richardson then heard the defendant say, "shoot the nigger" in response to the victim's plea for his life. However, this plea went unanswered as Richardson saw all four assailants begin shooting at the victim. Richardson concluded her testimony by saying the victim, defendant, Howard, and the minor were all involved in the sale of narcotics. Next, Howard was called to testify regarding a signed confession he gave to the police incriminating himself and the three other assailants. Howard refused to testify. However, a homicide policeman testified that Howard signed the incriminating confession on September 27, 1994, five (5) days after the shooting. - 4 - In the confession Howard stated he was carrying a .22 caliber rifle, defendant had a .45 caliber automatic, and the minor was carrying either a .38 or nine millimeter gun. The testimony of a fellow policeman, who was a firearms examiner, corroborated this confession by saying the fatal bullet recovered from the victim's brain was a .38 caliber bullet. Further testimony revealed the other bullets recovered from the victim's body were .22 or .38 caliber bullets. Defendant testified on his own behalf. He stated he frequented the area for the purpose of selling crack. He admitted to knowing the other three assailants. On the night in question, defendant stated he was walking towards the street where the victim's car was parked when he heard loud voices. He observed Howard holding a gun pointed at someone on the ground. Defendant stated he then witnessed Howard fire the gun he was holding. Defendant then ran from the scene but as he was running he heard three or four more shots fired. Defendant's first assignment of error states as follows: THE TRIAL COURT ERRED WHEN IT ADMITTED OUT OF COURT STATEMENTS MADE BY A CO-CONSPIRATOR, WHERE NO EXCEPTION TO EVID.R. 802 APPLIED. Essentially, defendant argues that Howard's confession, read into evidence by a policeman and over objection, was clearly hearsay. Defendant contends the admission of Howard's statements violates the Confrontation Clause of the Sixth Amendment because defendant's counsel was denied the opportunity to cross-examine - 5 - Howard. Furthermore, defendant contends that Howard's confession was not an admissible hearsay exception pursuant to Evid.R. 804(B)(3), statement against interest, because Howard's statement was inherently suspect. The state counters by arguing that Howard's statements, admitted after he became unavailable, did not violate the Confrontation Clause of the Sixth Amendment because they were admissible hearsay exceptions pursuant to Evid.R. 804(B)(3), statements against interest. In addition, the state asserts that there were sufficient corroborating circumstances introduced at trial which indicated the trustworthiness of Howard's statements. The Confrontation Clause is a constitutional safeguard that ensures a defendant will not be convicted based on the charges of unseen, unknown, and unchallengeable witnesses. Lee v. Illinois (1986), 476 U.S. 530, 540. Thus, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under a hearsay exception. Idaho v. Wright (1990), 497 U.S. 805, 814. When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing that he is unavailable and that the statement bears adequate "indicia of reliability." Ohio v. Roberts (1980), 448 U.S. 56, 66. The reliability standard can be satisfied without more in a case where the evidence falls within a firmly rooted hearsay exception. Id at 66. Otherwise, to satisfy the Confrontation Clause the evidence must be supported by a showing of "particularized guarantees of trustworthiness." Id. State v. Gilliam (1994), 70 Ohio St.3d 17, 19, cert. denied (1995), 115 S.Ct. 750. - 6 - In Gilliam, the co-defendant made a prior statement implicating himself and Gilliam. The co-defendant then took the stand and refused to testify. However, his prior statement was admissible because it was a statement against interest, a hearsay exception pursuant to Evid.R. 804(B)(3). Id. at 20. Evid.R. 804(B)(3) provides: (B) The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * * (3) Statement against interest. A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless the corroborating circumstances clearly indicate the trustworthiness of the statement. Defendant does not dispute that Howard was unavailable for purposes of Evid.R. 804(B)(3). Defendant contends that the state failed to prove that there were "corroborating circumstances clearly indicating the trustworthiness of the statement." Like Howard, Richardson, the eyewitness in the case, placed defendant, Howard and the other two assailants at the scene. She also corroborated Howard's statement that all four assailants were - 7 - armed and that Howard ordered her and the victim out of the car. Furthermore, Howard and Richardson both stated the victim was ordered on to the ground and that shots were fired at the victim. The physical evidence corroborated Howard's testimony. Howard stated that he fired his .22 caliber weapon and that Lavelle Eaves fired his weapon which was either a nine-millimeter or a .38 caliber weapon. The bullets recovered from the scene and recovered from the victim's body were .22 caliber and .38 caliber. "The determination of whether corroborating circumstances are sufficient to admit statements against penal interest as a hearsay exception generally rests within the discretion of the trial court." State v. Landrum (1990), 53 Ohio St.3d 107, 113. Here, the trial court held that there were sufficient corroborating circumstances which established the trustworthiness of Howard's statements. We hold the trial court did not abuse its discretion by finding that the state did present sufficient corroborating circumstances which indicate the trustworthiness of Howard's statements. Therefore, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: MR. WALKER'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Defendant argues even when viewed in the light most favorable to the prosecution, no rational trier of fact could have found that - 8 - the essential elements of aggravated robbery were proven beyond a reasonable doubt. Defendant contends Howard's statements were inadmissible and Richardson only made statements concerning defendant reaching into the victim's pocket and this is not sufficient to prove defendant attempted or committed aggravated robbery. A reviewing court will not reverse a verdict where the trier of fact could conclude from substantial evidence that the state proved the elements of the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. R.C. 2911.01 defines aggravated robbery as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following. (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. As determined supra, the statements of Howard were statements against interest and admissible in contrast to defendant's argument that the statements are hearsay. Also, four people placed the defendant at the scene of the crime; Richardson, Larry Greer, Howard, and the defendant himself. Howard stated the assailants purpose on the night in question was to rob the victim and Larry Greer, who were known throughout the neighborhood as drug dealers. Richardson, Greer, and Howard, stated the defendant was armed. - 9 - Richardson then testified that the defendant and the minor began checking and searching the victim's pockets and a short time later the command to shoot the victim was issued by defendant and the minor. After a review of the record, we conclude that the state presented sufficient evidence to prove every element of aggravated robbery beyond a reasonable doubt. The fact that defendant intended to rob the victim and Richardson saw him going through the victim's pockets in addition to the fact that he was armed was sufficient to prove aggravated robbery. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Defendant argues that Howard's confession was hearsay and unreliable. Also, defendant contends that Richardson, the state's primary witness, was unruly and incorrigible. Plus, her testimony is unbelievable because she was dating Larry Greer who was a competing drug dealer in the neighborhood with defendant. 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 - 10 - 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. Here, Richardson identified defendant at the crime scene, saw the defendant carrying a weapon, and heard defendant along with the minor issue the command to shoot the victim. Howard stated defendant was armed and was at the crime scene. Larry Greer also stated defendant was at the crime scene with the other three assailants. Finally, defendant places himself at the crime scene and admits that he was well acquainted with the other assailants. Resolving inconsistencies in the evidence and determining the credibility of the witnesses is primarily up to the factfinder. State v. DeHass (1967), 10 Ohio St.2d 230, 231. "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. After reviewing the evidence in a light most favorable to the prosecution, we find that the jury did not lose its way and create a manifest miscarriage of justice in finding defendant guilty of - 11 - aggravated robbery and having a weapon while under disability. Therefore, defendant's third assignment of error is overruled. Judgment affirmed. - 12 - 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. HARPER, P.J. TIMOTHY E. McMONAGLE, J., CONCUR. JUDGE 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, .