COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69283 IN RE: PATRICK WASHINGTON : : Appellant : JOURNAL ENTRY : and : OPINION : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 31, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Juvenile Division : Case No. 9502312 JUDGMENT : AFFIRMED IN PART AND : REVERSED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 For appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor PATRICK J. McCARTHY, Assistant 1200 Ontario Street Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Appellant Patrick Washington appeals from his adjudication of delinquency for aggravated murder, R.C. 2903.01, and aggravated robbery, R.C. 2911.01, as an aider and abettor. Patrick Washington was charged in a two-count complaint on February 15, 1995. An adjudicatory hearing was held on April 25, 1995 before a juvenile court judge. The state presented eleven witnesses. At the close of the state's case, defense counsel for Patrick Washington moved for acquittal. The court denied the motion, and the defense rested. The court found Patrick Washington delinquent on both counts of the complaint. This appeal was taken on July 12, 1995. For the reasons stated below, we affirm in part and reverse in part the determination of the lower court. The facts giving rise to this appeal are as follows. On January 3, 1995, during the armed robbery of a taxicab, the driver, Ronald LaShore, was killed. Patrick Washington, a juvenile, was charged with aggravated murder and aggravated robbery. The state presented its case against the defendant in juve- nile court. The state presented testimony of Dr. Martha Steinberg of the Cuyahoga County Coroner's Office, who testified as to the autopsy of the victim, Ronald LaShore. In the expert opinion of - 3 - Dr. Steinberg, the cause of death of Ronald LaShore was a shotgun wound to the trunk in the area of the back of the axilla which perforated the ribs, the chest wall, the plura, the right lung and the liver. The wound was caused by a contact shot which caused extensive bleeding, and the victim exsanguinated. Dr. Sharon Rosenberg of the Cuyahoga County Coroner's Office Trace Evidence Laboratory testified that after conducting the standard tests, it was her opinion that the jacket of the victim evidenced a contact shotgun wound. Officer David Elmore of the Cleveland Police Department tes- tified that he was dispatched to the Putnam Road address where a male had been shot. The victim, Ronald LaShore, was semi- conscious and bleeding. The EMS arrived on the scene and started treating the victim. A large crowd gathered, and Officer Elmore started questioning the crowd. He learned that the victim had come from the cab about four hundred feet up the street. The crowd believed that the victim was shot in the process of a robbery attempt. Officer Elmore protected the crime scene to be sure that no one entered the cab except for law enforcement personnel. At the scene, Officer Elmore found the cab was running and there was blood in the cab. Next to the front tire on the passen- ger side, there was a live shotgun shell. A spent shotgun shell lay by the rear tire of the passenger side of the cab. The con- tents and bag of the victim were scattered on the sidewalk; no wallet or money were recovered. The officer obtained the descrip- - 4 - tion of two of the perpetrators, one with a long Raiders coat and one with a short Raiders coat. The matter was turned over to the homicide unit. Mr. Richard Headley, Vice-President of the Yellow Cab Co., testified as to the dispatch lists and order cards for January 3, 1995 for cab number 632, the cab leased to the victim, Ronald LaShore. Mr. Headley testified that at 5:03 or 5:08 p.m., service was requested at 16406 Harvard Avenue with a destination of 160th Street and Miles Avenue. The phone number given was 921-2560. Mr. LaShore was dispatched by radio at 5:17 p.m. Defense counsel objected to Mr. Headley's testimony regarding a tape recording made at Yellow Cab of the call requesting service. In response to the defense objection to the tape recording, the court continued Mr. Headley's testimony for ten days. After the ten-day continuance, the state recalled Richard Headley to testify as to the audio tape of the incoming calls to the company on January 3, 1995. The court determined that the original of the tape was unavailable and that the tape played in court was reproduced from the original. Headley testified that the tape recordings of the incoming telephone calls were made in the ordinary course of business. The court played the dispatch recording, and Mr. Headley identified it as an exact duplicate of the original. Mr. Headley testified to the documents which indicated that cab number 632 was dispatched to 16406 Harvard Avenue at 5:33 p.m. on January 3, 1995. - 5 - On cross-examination, Mr. Headley testified that the day after the incident occurred, he pulled the orders for Ronald LaShore's cab and matched them to the tape. He then recorded a copy from the dispatch tape. The state called Cathy Spence. Ms. Spence testified that her telephone number was 921-2506. This number was the reference number used on the January 3, 1995 call to the Yellow Cab Co. Ms. Spence has children who had gone to school with Patrick Washington, and he had visited her home four or five times. Ms. Spence identified the voice on the tape recording as that of the appel- lant, Patrick Washington. Ms. Spence testified that Patrick Washington did not make the January 3, 1995 phone call from her house. On cross-examination, Ms. Spence indicated that she had not heard Patrick Washington's voice on a tape before, except when the detective played the tape at her house in January. The detective only played it once, and almost immediately, she recognized the voice as that of Patrick Washington. She said that the first thing the detective asked when interviewing her was whether her children knew Patrick and Brian Washington. The state then called Rinita Simmons, daughter of Cathy Spence, who testified that she had known Patrick Washington for about four years. She had talked to him at her house and on the phone. Ms. Simmons testified that she listened to the tape after her mother did, separately from her mother. She stated that the - 6 - detective did not tell her whose voice might be on the tape. Ms. Simmons identified the voice on tape in court as the voice of Patrick Washington. On cross-examination, Ms. Simmons testified that she was present when the detective talked to her and her mother and brother, but she was upstairs when he played the tape for her mother. She said that the detective told them a cab driver had been killed and he wanted them to identify the voice because their phone number had been used. On redirect examination, Ms. Simmons testified that, before she listened to the tape, the detective named the names of Brian and Patrick Washington when he first came into her house. She was positive that the voice on the tape was that of Patrick Washington. The state's key evidence included the testimony of three individuals who testified that they were with the appellant, Patrick Washington, on January 3, 1995, the afternoon of the robbery and murder. The state presented their testimony to show Patrick Washington's active participation and planning to commit the crime of aggravated robbery which resulted in the death of Ronald LaShore, the cab driver. The state called Antonio Robinson, age fifteen, a Crips gang member, who testified that on January 3, 1995, about 4:00 in the afternoon, Patrick Washington, Brian Washington, Leland Watkins and Eric Fluitt showed up at his house. The group went upstairs, where - 7 - the discussion centered on gangs, carjacking and robbing. Leland Watkins had a black, two- to three-foot, 12 gauge shotgun which the group used in their practice of robbing cabs. Patrick Washington also had a gun, but they "put it up" while they were practicing. They discussed how to rob the cabs and which roles each individual would take. Watkins was holding the shotgun during the practice robbery. Robinson testified that the group's plan was to rob a cab. They practiced how they were going to do it and what people would be good for each part. Someone in the group called for a cab, but Robinson did not know who made the call to summon the cab because he went downstairs while the call was made. The group, including Patrick Washington, went onto the front porch to wait for the cab. Robinson took Watkins's 12 gauge shot- gun and shot out a car windshield in the parking lot next door to show Fluitt how to shoot it. When Robinson returned to the porch, he handed the shotgun back to Watkins, who ejected the spent shell, which landed on the porch. Somebody picked up the shell and threw it out into the yard. Around 5:30 p.m., the Yellow Cab arrived. Eric Fluitt, Brian Washington and Leland Watkins got into the cab. Watkins had the shotgun stuck in his coat. Robinson testified that about two hours later, at his house, he and Patrick Washington got a call from Brian Washington. The group got back together, and Robinson learned that the cab driver had been shot during the robbery of the cab. - 8 - The state then called Brian Washington, the brother of appel- lant Patrick Washington. Brian Washington was with the group on January 3, 1995, planning the robbery. Brian had previously admitted in court his delinquency in the aggravated murder of Ronald LaShore. He testified to his version of the events of January 3, 1995. Brian Washington, his brother Patrick, June Thurmon Story, Eric Fluitt and Leland Watkins had been "hanging out" for about twenty minutes at Watkins's house. From Watkins's house, they walked to Brian's and Patrick's house. All of them were in the gang known as the Crips although Brian had only known Eric Fluitt for one day. The group only stayed at the Washington house about five or ten minutes, then, at about 4:00 p.m., they all walked to Antonio Robinson's house to "hang out." Brian did not see any guns at that time, and he testified that his brother, Patrick Washington, did not have a gun at that time. At Robinson's house, the group went inside and were all smoking weed except Patrick, who had one beer. Robinson's little brother was upstairs with them at first, but Robinson sent his brother downstairs. The group was talking about girls, and Patrick used the phone to call a friend named "James," aka "Stuff." Brian knew that somebody called a cab, but he did not know who made the call. He denied that he made a statement to police indicating that his brother Patrick called the cab. The group called the cab because they were going to James's house to "hang - 9 - out." They all went outside to wait for the cab. Watkins had brought the shotgun out onto the porch before somebody called the cab. Brian testified that the group did not discuss robbing the cab. The Yellow Cab Astrovan eventually arrived. Although the plan was that everybody was going to James's house, the cab driver said there were too many people for the cab. Brian, Leland Watkins and Eric Fluitt got into the cab. The reason that his brother Patrick did not get into the cab was because there was not enough room. Brian testified that Robinson told him that Patrick had called another cab, a White Cab. Brian testified that Watkins shot the driver with the same 12- gauge shotgun that Brian had seen at the house. Brian testified that the robbery had not been planned and that he had not known that Watkins had brought the gun into the cab because Watkins was wearing a big coat. Brian and Watkins both gave the driver directions. When they arrived at their destination, Brian was about to pay the driver when Watkins said to the driver, "Give me the cheese," meaning money. Brian dropped his own money when he heard the shotgun being cocked and bent down to pick it up. Brian testified that the driver, LaShore, apparently thought Brian was in the way of the shotgun and so the driver put the cab into drive to get away. When the cab moved, the door of the cab hit the gun, and it went off. Brian testified that it was all an - 10 - accident. Watkins did not take any money from the cab driver, and Brian did not call the police because he was scared. After the shooting, Brian, Fluitt and Watkins fled the scene. They took a bus back to 154th and Miles. Brian and Fluitt met up with Patrick, Thurmon Story and Robinson at Robinson's house about two hours later. Brian told his brother that it was a "mistake." Brian Washington identified the statements which he gave to the police on January 6, 1995 and February 9, 1995. He testified that he made the amended statement of February 9, 1995 in the presence of his attorney because he wanted to tell the truth. Brian made the first statement implicating Fluitt as the person who called the cab and the person who shot the driver to make Fluitt look bad. Using the February 9, 1995 statement, Brian testified that it was not Fluitt who called the cab but was "my brother Patrick who called the cab." Brian testified, however, that the reference to the cab meant the "white cab." Brian testified that in the Febru- ary 9, 1995 statement, he said, "It was Leland who shot the cab driver." Brian denied making the statement to the police on January 6, 1995 that Fluitt "was talking about knowing how to 'jack' somebody but that [he] didn't know Eric had a gun." Brian further denied that he made the statement on February 9, 1995 that his brother Patrick had called the cab. Although in the January 6, 1995 - 11 - statement, Brian stated that Eric was talking about "jacking" at trial, he denied that there was any conversation about robbery. On cross-examination, Brian testified that it was his inten- tion to take a cab to James's, aka "Stuff's," house at 116th and Putnam and pay the cab driver. He stated that he did not hear any discussion between Patrick and Watkins about robbing or shooting anyone at gunpoint. Watkins shot the cab driver without his knowledge. Brian repeatedly testified that Patrick did not call the Yellow Cab. However, Brian admitted that Patrick was at Robinson's house that afternoon, that Patrick was there when Robinson shot the shotgun and that Patrick was there when Watkins got into the cab. The third member of the group called by the state to testify as to the events of January 3, 1995 was Eric Fluitt. Fluitt was charged as an adult in the robbery and murder of January 3, 1995 and testified with his attorney present. Fluitt testified that on that date, he and June Thurmon Story showed up at Leland Watkins's grandmother's house. Watkins, Patrick Washington and Brian Washington were there. Fluitt did not know anyone there except Thurmon Story. The group left Watkins's house for about fifteen minutes to sell some drugs. From the drug transaction, the group went to the beverage store where Patrick Washington had someone buy beer for him. The group then returned to Watkins's house, where they discussed the "clinic." Fluitt testified that the group talked about a previous cab robbery where - 12 - Patrick Washington had kept out more money than he was entitled to on the "split." The court disallowed the tes-timony relating to the previous cab robbery as not meeting the requirements for the co-conspirator exception to the hearsay rule. On arriving at Watkins's grandmother's house, they all went into the living room. Patrick Washington made some phone calls to find a ride to the "clinic." Patrick asked Watkins to find the gun that Patrick had let Watkins use. Watkins got the gun and gave it back to Patrick. Patrick held it in his hand, then put it into his pocket. It was a gray .38 caliber. Someone called Robinson to tell him that the group was on the way to his house. They walked together to Robinson's house on Harvard Avenue. The group went up to Antonio's room in the attic, and Patrick started the discussion about "getting a cab." At first, Fluitt thought Patrick meant getting a cab for transportation. Fluitt testified that he saw three guns that afternoon, the shotgun, Robinson's small pistol (a .22 or .25 caliber) and the .38 caliber that Patrick had. The focus of the discussion that afternoon was the robbery of a cab. The group role-played the robbery. During the rehearsal of the cab robbery, Patrick Washington sat in the middle, Thurmon Story sat on his right and Robinson sat on the left, while some kid played the part of the driver. The robbery plan was that Robinson would grab the driver, Thurmon Story would cock the gun, even though it was supposed to be unloaded, and Patrick Washington would search the driver for money - 13 - or a gun. The group rehearsed the robbery three or four times. Watkins was loading and unloading, cocking and playing with his shotgun and pointing it at the people in the room while they were all sitting there. During the practice robbery, Fluitt made some phone calls. Watkins told him to get off the phone so that the cabs could be called. Fluitt testified that two cabs were to be called; the first cab would not be robbed, the second cab, with Patrick Washington, Robinson and Thurmon Story, would be robbed. Watkins made the first call to the cab; the second one was made by Robinson. Those calls were cancelled due to some con-fusion as to the address to be used. Fluitt could not identify who made the third call for a cab. After rehearsing the cab robbery, they all went downstairs and out on the porch to wait for the cabs. While they were on the porch, Patrick Washington told Fluitt to go shoot at a guy's car. Fluitt declined. Patrick Washington got the shotgun from Watkins and gave it to Robinson, who went and shot out the car windshield. Robinson came back up on the porch and gave the shotgun back to Watkins. Patrick Washington told Watkins to cock it again, and the shell ejected. The shell was green and copper. Someone picked it up and threw it toward the front yard. The Yellow Cab Astrovan taxi showed up. Brian Washington got into the cab first, directly behind the driver, Fluitt sat in the last seat and Watkins sat behind the passenger seat in the middle section. Fluitt testified that the second cab apparently never - 14 - showed up; he said when Brian Washington asked Patrick what hap- pened to the second cab, all of them said it never came. Fluitt saw the shotgun on Watkins. Brian Washington in- structed the driver to go to 116th. The driver turned right on Lee Road toward Miles. The cab driver got agitated with Brian's questions and stopped and turned around to confront him. There was tension in the cab. The cab proceeded to a street off 116th. The driver said the fare was $15, $5 each. Fluitt and Watkins had already exited the cab when Brian attempted to hand the driver the money. Watkins was standing at the sliding door; he had the shot- gun out of his jacket. Watkins told the driver to give him all his money. The driver turned quickly, saw the gun and tried to put the van into gear. Fluitt testified that the driver seemed to have put the cab into neutral instead of drive. Brian had his head down, and Watkins then shot the driver on his right side. Fluitt ran, stopped and turned, and saw the driver get out of the cab. He heard either Brian Washington or Watkins call to him, and he went with them. Watkins attempted to hide the shotgun in his jacket. Watkins, Fluitt and Brian Washington ended up on Miles Avenue, where they got onto a bus. When they got off the bus, Fluitt and Brian Washington were ahead of Watkins, who was still trying to get the gun back completely into his jacket. Brian and Fluitt stopped at the house of a friend of Brian's; Watkins was not with them. - 15 - Later, the group got back together again at Watkins's grandmother's house. In his statement to the police, Fluitt indicated that Patrick Washington needed to use the phone to call a cab. Fluitt recalled that Patrick had used the phone but did not recall that he made the third phone call for the cab. The state called Detective Matuszny of the Cleveland Police Department, who investigated the homicide of Ronald LaShore. The detective testified that he and his partner went to the address on the Yellow cab dispatch slip, 16406 Harvard, the home of the Robinson family. From the people at the house, he got the names of some of the males who were at the house on January 3, 1995: Patrick and Brian Washington, June Thurmon Story, "E" (Eric Fluitt) and Leland Watkins. Detective Matuszny spoke to Antonio Robinson the next day. On January 6, 1995 the police brought the Washington brothers, Patrick and Brian, into the station and took written statements from each of them. On January 6, Brian Washington and Leland Watkins were arrested; Patrick Washington was released to his father. Detective Matuszny obtained the tape from Yellow Cab Co. which contained the phone call to the Yellow Cab Co. The detective tracked the phone number through Ohio Bell and identified the listee subscriber as Cathy Spence. He went to the home of Ms. Spence and informed her that he was investigating a homicide and wanted to talk to her children. He returned on Saturday with - 16 - Detective Parkinson when the children were home. At this time, Detective Matuszny did not know the identity of the voice on the tape, and he testified that he did not indicate to Cathy Spence and the children whose voice it might be. When the detective played the tape, the daughter, Ms. Simmons, was sitting at the dining room table and the son was sent out of the room. The mother, Cathy Spence, was on the couch at the furthest wall in the living room. As soon as the tape came on, Detective Matuszny could see that Ms. Spence, who was sitting in the living room, immediately recognized the voice. He played the tape in its entirety, and Ms. Simmons identified the voice as that of Patrick Washington. Ms. Spence also identified the voice as that of Patrick Washington. Detective Matuszny testified that he did not mention Patrick Washington's name to the witnesses, Ms. Spence and Ms. Simmons, before they listened to the tape. The detectives then went to Patrick Washington's home, waited for his father to arrive and arrested Patrick Washington. Detective Matuszny testified that there was no voice compari- son done with the tape because the Cleveland police have no facilities to compare voices. Detective Matuszny then identified the second statement of Brian Washington, which was made February 9, 1995. Brian was quoted in the statement as having said, "It wasn't Eric that called the cab, it was my brother Patrick. It was also Leland that shot him." Matuszny testified that he knew that Brian Washington was - 17 - referring to the phone call which was made to the Yellow Cab when he made that statement. Detective Matuszny tes-tified that Patrick Washington, Brian Washington, Leland Watkins and Eric Fluitt were directly involved with the murder of the cab driver. On cross-examination, Detective Matuszny testified that in reviewing Fluitt's statement that "Lee called for the cab *** and I think either Lee called the other cab, or Antonio did," Matuszny knew that only one cab responded; he did not know if there was a first and a second cab. The detective had no evidence that Ameri- cab was called more than once or that Yellow Cab was called one time. The detective admitted that there was nothing in Fluitt's statement that said the group planned on robbing both cabs. The last witness presented by the state was Nathaniel Washington, father of the appellant, Patrick Washington. Mr. Washington testified that on January 21, 1995, during a conversa- tion with his son Patrick at the Justice Center, Patrick did not admit that he was the one who called the Yellow Cab. Nathaniel Washington testified that the voice on the tape was not his son but was Leland Watkins, the same person referred to by Fluitt when Fluitt testified that "Lee called the cab." Detective Matuszny was then recalled as a rebuttal witness. He testified that on January 21, 1995, he told Nathaniel Washington that they (the detectives) believed that Patrick had made the phone call to Yellow Cab Co. in connection with the LaShore homicide. Nathaniel Washington then spent forty or forty-five minutes alone - 18 - talking to his son. After his conversation with his son, Nathaniel Washington told Detective Matuszny that Patrick Washington had admitted making the phone call. A statement was then typed up but not signed. The state rested its case. Defense counsel moved for acquit- tal. The court denied the motion. The defense rested, and clos- ing arguments were made. Disposition was held, and the court found Patrick Washington delinquent of both counts of the complaint and ordered him into the custody of the Ohio Department of Youth Services until he reaches the age of twenty-one. Appellant Patrick Washington filed this appeal and presents three assignments of error for our review. I. PATRICK WASHINGTON'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROP- ERLY DENIED A DEFENSE MOTION FOR ACQUITTAL WHEN HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. - 19 - An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. Further, a reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. This same standard applies in juvenile proceedings. In re Gault (1967), 387 U.S. 1. The appellant, Patrick Washington, was found delinquent of R.C. 2903.01, aggravated murder, and R.C. 2911.01, aggravated robbery. Appellant complains that the evidence in this case is insufficient to support a conviction on count two of the com- plaint, charging Patrick Washington with the aggravated murder of Ronald LaShore, as set forth in R.C. 2903.01. R.C. 2903.01 states in pertinent part: (B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated - 20 - robbery or robbery aggravated burglary or burglary, or escape. The statute further provides that: (D) No person shall be convicted of aggra- vated murder unless he is specifically found to have intended to cause the death of another. IN NO CASE SHALL A JURY IN AN AGGRAVATED MURDER CASE BE INSTRUCTED IN SUCH A MANNER THAT IT MAY BELIEVE THAT A PERSON WHO COMMITS OR ATTEMPTS TO COMMIT ANY OFFENSE LISTED IN DIVISION (B) OF THIS SECTION IS TO BE CONCLUSIVELY INFERRED, BECAUSE HE ENGAGED IN A COMMON DESIGN WITH OTHERS TO COMMIT THE OFFENSE BY FORCE AND VIOLENCE OR BECAUSE THE OFFENSE AND THE MANNER OF ITS COMMISSION WOULD BE LIKELY TO PRODUCE DEATH, TO HAVE INTENDED TO CAUSE THE DEATH OF ANY PERSON WHO IS KILLED DURING THE COMMISSION OF, ATTEMPT TO COMMIT, OR FLIGHT FROM THE COMMISSION OF OR ATTEMPT TO COMMIT, THE OFFENSE. If a jury in an aggravated murder case is instructed that a person who commits or attempts to commit any offense listed in division (B) of this section may be inferred, because he engaged in a common design with others to commit the offense by force or violence or because the offense and the manner of its commission would be likely to produce death, to have intended to cause the death of any person who is killed during the commission of, attempt to commit, or flight from the commission of or attempt to commit the offense, the jury also shall be instructed that the inference is NONCONCLUSIVE that the inference may be considered in determining intent that it is to consider all evidence introduced by the prosecution to indicate the person's intent and by the person to indicate his lack of intent in determining whether the person specifically intended to cause the death of the person killed, and that the prosecution must prove the specific intent of the person to have caused the death by proof beyond a reasonable doubt. (Emphasis added). The state must show that the appellant, Patrick Washington, possessed the requisite culpable mental state for the offense. - 21 - State v. Mabry (1982), 5 Ohio App.3d 13. Pursuant to R.C. 2903.01, the state has the burden of proving beyond a reasonable doubt the specific intent of the appellant to cause the death of another. While the mandate of the statute may seem onerous, nonetheless, this statute is clear and unambiguous as to the burden placed upon the state. Appellant argues that the state failed to prove the required element of "specific intent to cause the death of another" beyond a reasonable doubt. Appellant further complains that the trial court erred when it relied on State v. Scott (1980), 61 Ohio St.2d 155 and State v. Johnson (Apr. 2, 1992) Cuyahoga App. No. 60402, unreported, as the basis for its determination of his intent. Appellant argues that the comments of the trial judge show that the specific intent to cause the death of another was shown by "inference" and is, therefore, an error of law. The record before us shows that the judge, during the dispo- sition of the matter before us, stated to the appellant, Patrick Washington, that, "We can infer your intention through different actions that took place, different evidence and different things that were said. From the evidence that was presented we can infer that you had intent to murder. You may not be able to figure that out, but it's certainly evident." Appellant argues that the court may not conclusively infer his intent to cause death in this man- ner. The inference of intent is rebuttable, and the inference is rebutted in this case. Therefore, although the judge may have - 22 - inferred the intent of the defendant from actions which took place, evidence presented and different things that were said, we do agree with the appellant that the evidence presented in this case was insufficient for the judge to be able to infer that appellant Patrick Washington had the requisite intent for aggravated murder. The code requires the finder of fact to be apprised that it may not be conclusively inferred that because the defendant en- gaged in a common design with others to commit one of the offenses listed in section (B) by force and violence or because the offense and the manner of its commission would be likely to produce death, he had intended to cause the death of any person who is killed during the commission or attempt to commit or flight from the com- mission of an attempt to commit the offense. The statute provides that the inference is non-conclusive and that "the inference may be considered in determining intent[;] that [the court] is to consider all evidence introduced by the prosecution to indicate the person's intent and by the person to indicate his lack of intent in determining whether the person specifically intended to cause the death of the person killed." However, a careful review of the evidence adduced at trial supports the conclusion that the evidence was insufficient for the trial court to infer that Patrick Washington had the specific intent necessary to be found guilty of aggravated murder under the circumstances described at the hearing. From the testimony adduced at trial, the state has shown that the appellant was present and - 23 - participated in the rehearsal of robbery of a cab. The appellant had his own gun with him. There was no evidence presented that the appellant's gun was loaded. The appellant was aware that operable firearms were present at the rehearsal of the robbery and knew that Leland Watkins had a sawed-off shotgun on the porch while they waited for the cab. There was no evidence presented that the appellant knew that the shotgun which Watkins covertly took into the cab was loaded. All of the activity involving the practice robbery described at the hearing took place in the presence of and with the active participation of the appellant. The written police statement of Brian Washington made on February 6, 1995 and the testimony of Detective Matuszny indicated that Patrick Washington placed the phone call to the cab company summoning the cab. Rinita Simmons and Cathy Spence identified the voice on the Yellow Cab Company recording as that of the appel- lant, Patrick Washington. The state presented sufficient evidence to show that appellant entered into a common design with the other participants to commit a felony. The state presented evidence that during the commission of the felony, Ronald LaShore was killed. Appellant argues that this evidence is insufficient to sup- port the determination of delinquency on the charge of aggravated murder because the state has failed to prove that he had the requisite intent to kill the victim. We agree. Intent to kill is a "necessary element of the charge of aggravated murder." (State v. Smith [1990], 49 Ohio St.3d 137, 140.) Further, intent to kill is a necessary element where the - 24 - accused is charged with murder under a complicity theory, as in this case; in such cases the jury may infer the purpose to kill "where the facts show that the participants in a felony entered into a common design and either the aider or abettor knew that an inherently dangerous instrumentality was to be employed to accomplish the felony or the felony and the manner of its accomplishment would be reasonably likely to produce death." (Emphasis omitted.) State v. Scott (1980), 61 Ohio St.2d 155, 165, 400 N.E.2d 375. State v. Taylor (Nov. 17, 1995), Montgomery App. No. 14456, unre- ported. See, also, State v. Johnson (Apr. 2, 1992), Cuyahoga App. No. 60402, unreported. Based on these standards, appellant's intent to commit the aggravated murder is at issue in this case. The state relies on the case of State v. Scott, supra for the proposition that the court properly inferred specific intent to Patrick Washington for the murder of the victim, Ronald LaShore. The state argues that following the directive of Scott, supra, the "purpose to kill" is shown where the participants in a felony enter into a common design and either (1) the aider and abettor knows that an inherently dangerous instrumentality was to be employed to accomplish the felony or (2) the felony and the manner of its accomplishment are reasonably likely to produce death. The state argues, here, that appellant entered into a common design to participate in the felony of robbery of the cab and that he knew that an inherently dangerous instrumentality, a loaded gun, would be employed to accomplish the felony. The state argues further that appellant, therefore, had the specific intent necessary for the crime of aggravated murder. - 25 - The reliance of the state on State v. Scott, supra, to prove the appellant's specific intent under these facts is misplaced. The statute is exceedingly clear that such a presumption of specific intent may not be made conclusively. Inference of the appellant's intent drawn from the fact that he engaged in a common design with others to commit the offense by force and violence or because the death occurred during the commission of, the attempt to commit or the flight from the robbery is nonconclusive. The inference may be considered in determining the intent as the finder of fact shall consider all evidence introduced by the prosecution to indicate the appellant's intent and by the appellant to indicate his lack of intent. If our court followed State v. Scott in the manner suggested by the state here, the result would be that a conclusive inference of the specific intent to have caused the death of another on the part of a defendant must be drawn in each and every case where it is shown that a defendant entered into a common design to commit any of the crimes as listed in R.C. 2903.01(B) by force or vio- lence or because the offense and the manner of its commission would be likely to produce death. Such a result is completely at odds with the requirement of the statute. The statutory language mandates that the state must show something more. Although decided before the enactment of R.C. 2903.01, the decision in State v. Scott, supra, remains consistent and may be harmonized with the statutory intent of R.C. 2903.01(D). In Scott, - 26 - the specific intent of the defendant to cause the death of another was shown beyond a reasonable doubt. In that case, the defendant knew that his accomplices possessed guns. The defendant, Scott, knew that prior to the kidnapping, one of his accomplices expressed his intention of killing the victim. Defendant Scott assisted in the preparation of the ransom note, which contemplated the possibility of the victim's death. The court reasoned that "[s]ince the state had presented evidence showing the appellant's complicity, his awareness that handguns were to be employed to accomplish the kidnapping and also that the kidnapping was reasonably likely to produce Emoff's death, a sufficient evi- dentiary basis was present." Scott, supra at 165. The state, additionally, relies upon our court's decision in State v. Johnson for the proposition that the standard announced in State v. Scott is still authority for determining intent even after the enactment of the statute requiring the state to prove the specific intent beyond a reasonable doubt. In Johnson, as in Scott, the defendant claimed to have no intent to kill. In Johnson, the court, using the standard announced in Scott, indi- cated that the jury instruction on aggravated murder provided that an aider and abettor's purpose to kill may be inferred where "he engaged in a common design with others to commit the offense by force or violence, or because the offense and the manner of its commission would be likely to produce death." The court deter- mined that the instruction was not error when read in conjunction - 27 - with the charge on aiding and abetting. In Johnson, four wit- nesses testified that the defendant, himself, was brandishing a rifle. Testimony indicated that the defendant, Johnson, had threatened the victims. The decision of the court indicates to us that the court took into consideration more than just the Scott requirements in its affirmance of the verdict. The Johnson court stated that "[i]n brandishing the rifle and threatening Hardaway while Carner threatened Richmond, the defendant had to realize that either Hardaway's or Richmond's life were endangered. We find Tom Johnson is bound by the foreseeable consequences that flowed from his role in the robbery." Johnson, supra, at 14. Such is not the case in the matter sub judice. All of the testimony adduced at the hearing relative to the use of the guns indicated that there was no intent to murder the victim cab driver on the part of any of the participants. Each of the participants testified that there was no intention to shoot the cab driver. The only testimony that indicated that the participants planned to use a gun also indicated that the gun was to be unloaded. Thus, the state failed to show that Patrick Washington knew that an inherently dangerous instrumentality (a loaded gun) was to be employed in the robbery or to show that the manner of the accom- plishment would be reasonably likely to produce death. There was insufficient evidence, as a matter of course, before the court upon which the judge could infer that the intent of the appellant was to murder the victim. - 28 - The evidence, even when examined in the light most favorable to the state as required by State v. Bridgeman (1978), 55 Ohio St.2d 261, was insufficient to support a finding beyond a reason- able doubt that Patrick Washington had the specific intent to cause the death of Ronald LaShore, a required element of the charge of aggravated murder. Accordingly, the appellant's first assignment of error is well taken and the decision of the trial court as to the finding of the delinquency of Patrick Washington on count two of the charge against him for aggravated murder pursuant to R.C. 2903.01 is reversed and vacated. II. THE PROSECUTOR'S FAILURE TO PROVIDE DEFENSE COUNSEL WITH MATERIAL REQUESTED DURING DIS- COVERY PURSUANT TO JUV.R. 24 SHOULD HAVE RESULTED IN THE TRIAL COURT'S PROHIBITION OF THE STATE'S USING THAT EVIDENCE DURING THE ADJUDICATORY HEARING, NOT MERELY CONTINUING THE WITNESS' TESTIMONY. Appellant complains that the evidence used by the state (Exhibit 20 at the hearing, the tape recording copied from the original Yellow Cab Co. tape which contained the voice of the caller) should have been excluded from the adjudicatory hearing. Appellant contends that the prosecutor's failure to provide - 29 - defense counsel with the tape pursuant to a discovery request within Juv.R. 24 warrants the sanction of prohibition of the evi- dence. We do not agree. Juv.R. 24, Discovery, provides in part: (A) Request for discovery. Upon written request, each party of whom discovery is re- quested shall forthwith produce for inspec- tion, copying or photographing the following information, documents and material in his custody, control or possession . * * * (5) Photographs and any physical evi- dence which a party intends to introduce at the hearing * * * (C) Failure to comply. If at any time during the course of the proceedings it is brought to the attention of the court that a person has failed to comply with an order issued pursuant to this rule, the court may grant a continuance, prohibit the person from introducing into evidence the material not disclosed, or enter such other order as it deems just under the circumstances. It is uncontroverted that counsel requested discovery on March 28, 1995 on behalf of the juvenile defendant, Patrick Washington. The response of the prosecution to the appellant's discovery request was effected on April 21, 1995, at which time no copy of the tape was produced to defense counsel nor was such a tape identified. The tape was properly discoverable evidence; however, we do not agree that the admission and the use of the tape at the hearing mandates reversal in the matter before us. - 30 - Our supreme court, in State v. Parson (1983), 6 Ohio St.3d 442, set forth the standard for reversal for failure to comply with discovery pursuant to Crim.R. 16. Discovery violations in delinquency proceedings may be interpreted on analysis of Crim.R. 16. State v. Lee (Feb. 10, 1983), Cuyahoga App. No. 44902, unre- ported. Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim.R. 16, (2) that fore- knowledge of the statement would have benefitted the accused in the preparation of his defense or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted. Parsons, supra, at the syllabus. "The trial court is vested with a certain amount of discre- tion in determining the sanction to be imposed for a party's non- disclosure of discoverable material. The court is permitted by the rule to order the noncomplying party to disclose the material and grant a continuance as the court did in the case before us. We, therefore, must determine whether the act of the trial court constituted an abuse of discretion." Parsons, supra. at 445. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, - 31 - arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. A review of the record fails to show an abuse of discretion in the matter before us. The trial court granted a ten-day con- tinuance, which removed the element of "gamesmanship" from the trial and permitted the appellant to prepare his defense. Appel- lant complains that the existence of the tape would have been key to the defense strategy in pre-trial conferences. Although the appellant claims that the failure of the prose- cution to produce the tape was more than negligent, appellant offers no evidence that the omission was willful as required by the court in Parson. As to the second prong of Parson, appellant argues that foreknowledge of the non-disclosed statement would have benefitted the appellant. The witness list contained the names of each of the witnesses who were to be called to identify the voice on the tape. The court continued the introduction of the tape evidence for ten days to allow the defense counsel to prepare to rebut the witnesses. The appellant claims further that, as required by the third prong of the Parson test, he was prejudiced by the admission of the tape. His claim of prejudice is that the defense would have presented evidence refuting the prosecutor's allegation that the voice on the tape belonged to him. Appellant's claim of preju- dice, however, could have been remedied by counsel for the appel- lant should he have chosen to do so. Defense counsel was offered - 32 - the opportunity to present evidence and failed to do so. It was to prevent such a claim that a continuance was granted. Accordingly, we find no abuse of discretion on the part of the court below and find that the appellant's second assignment of error is not well taken. III. THE TRIAL COURT'S FINDINGS OF DELINQUENCY OF AGGRAVATED MURDER AND AGGRAVATED ROBBERY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS 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. In light of our determination of appellant's Assignment of Error I finding that the state failed to present sufficient evi- dence to support the charge of aggravated murder against the appellant, we shall review this assignment of error as going to the finding of delinquency on charge of aggravated robbery only. The standard of review for the issue of whether the verdict is against the manifest weight of the evidence is set forth in State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus: In determining whether the verdict is against the manifest weight of the evidence 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 (finder of fact) clearly lost its way and created such a manifest mis- carriage of justice that the conviction must be reversed and a new trial ordered. - 33 - In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, 14. A review of the record reveals that the state produced com- petent, credible evidence going each of the elements of the crime of aggravated robbery, R.C. 2911.01(A)(1), as charged in the mat- ter sub judice. The elements of aggravated robbery, R.C. 2911.01 are: (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. - 34 - The record before us reflects that Patrick Washington actively participated in the rehearsal of a cab robbery with the use of a sawed-off shotgun, whether loaded or unloaded. The record reflects that Patrick Washington assisted in formulating the plan to rob a cab. The record also reflects that there is credible evidence that Patrick Washington summoned the cab which was robbed. The record reflects that there is ample, competent and credible evidence for the finder of fact to determine that the appellant, Patrick Washington, participated in a common scheme with Brian Washington, Leland Watkins and Eric Fluitt to commit the crime of aggravated robbery. The appellant's third assignment of error is not well taken, and the decision of the trial court is affirmed. - 35 - The judgment of the lower court is hereby affirmed in part and reversed in part. It is ordered that appellee and appellant split equally the 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 Cuyahoga County 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. SARA J. HARPER, P.J. CONCURS IN JUDGMENT ONLY JOHN T. PATTON, J. CONCURS IN PART; DISSENTS IN PART (See attached opinion) JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA - 2 - NO. 69283 IN RE: PATRICK WASHINGTON : : DISSENTING APPELLANT : : JOURNAL ENTRY : AND : OPINION : : DATE: OCTOBER 31, 1996 PATTON, J., CONCURRING IN PART; DISSENTING IN PART: A taxi driver died a senseless death at the hands of a group of youths who planned and rehearsed an armed robbery with a loaded shotgun. The majority readily acknowledges appellant helped mastermind and initiate this plan. But despite this recognition, the majority finds the state's inferential evidence of appellant's specific intent to murder the taxi driver fails to meet the test of evidentiary sufficiency necessary to sustain a conviction for aggravated murder. I respectfully, but vigorously, dissent from the disposition of the first assignment of error. The majority's decision is wrong both on the law and the facts. If sustained, it would set a dangerous precedent that would make it virtually impossible for the state to prove complicity in offenses, and it would effectively - 3 - overrule longstanding precedent which amply supports the juvenile court's adjudication of guilt. The majority places great emphasis on R.C. 2903.01(D) and the state's burden of proving an offender's specific intent to cause the death of another. This section brings nothing new to estab- lished jurisprudence; it simply codifies established law which requires the state to establish a culpable mental state both for the underlying felony offense and the murder and limits the availability of inferences based on the offender's participation in the underlying felony part of the felony murder charge. State v. Taylor (1993), 66 Ohio St.3d 295, 306. The fact is, we are dealing with complicity, not appellant's participation as a principal. In order to establish appellant's complicity in the aggravated murder, the state needed to prove that appellant aided or abetted in the commission of the murder while acting with purpose to kill. State v. Coleman (1988), 37 Ohio St.3d 286. While mere association with the principal offender is insufficient to convict one as an aider or abetter, the state can show an offender's intent to assist another in the accomplishment of "*** a common design or purpose from presence, companionship and conduct before and after the offense is committed." State v. Pruett (1971), 28 Ohio App.2d 29, 34. We permit such inferences because: The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of third persons - 4 - and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court. State v. Huffman (1936), 131 Ohio St. 27, paragraph four of the syllabus. Stated differently, the courts must look to the totality of the circumstances to determine whether an offender had the re- quired culpable mental state. State v. Johnson (1978), 56 Ohio St.2d 35, 38; State v. Scott (1980), 61 Ohio St.2d 155, 165. In State v. Lockett (1976), 49 Ohio St.2d 48, paragraphs three and four of the syllabus permit a jury to infer an aider's and abettor's purpose to kill on facts showing the participants in a felony entered into a common design and either the aider or abettor knew that an inherently dangerous instrumentality was to be employed to accomplish the felony or the felony and the manner of its accomplishment would be reasonably likely to produce death. Scott considered this precise question in the context of murder occurring during a kidnapping scheme. Scott and two friends actively planned a kidnapping, going so far as to prepare a ransom note detailing their demands and threatening to kill the victim if their demands were not met. The other two members of the conspiracy committed the kidnapping without Scott's help and later killed the victim. The court held that Scott's awareness that handguns were to be used to accomplish the kidnapping and that the kidnapping was likely to produce the victim's death provided a sufficient evidentiary basis upon which to find specific intent to commit the murder. Scott, supra, at 165. - 5 - Likewise, in State v. Johnson (Apr. 2, 1992), Cuyahoga App. No. 60402, unreported, Johnson participated in a shake-down of two men who earlier had assaulted and robbed him and his brother. Johnson and his companion found two men whom they believed com- mitted the assault and robbery, held them at gunpoint and threat- ened them. When one of the men turned to leave, Johnson's compan- ion shot and killed the man. Employing the same analysis outlined above, this court affirmed Johnson's conviction as an aider and abetter to murder. We found that brandishing a weapon while at the same time issuing threats demonstrated sufficient evidence from which a jury could infer the intent to kill. These precedents overwhelmingly dictate affirming the juvenile court's adjudication of delinquency. The facts show appellant and his friends were experienced hands at all sorts of gang-related violence, including robbery and carjackings. The evidence conflicted at times, no doubt because the principals were lying in order to avoid implicating themselves. The majority opinion succinctly sets forth the facts as viewed in the light most favorable to the state: The record before us reflects that Patrick Washington actively participated in the re- hearsal of a cab robbery with the use of a sawed off shotgun, whether loaded or unloaded. The record reflects that Patrick Washington assisted in formulating the plan to rob a cab. The record also reflects that there is credible evidence that Patrick Washington summoned the cab which was robbed. The record reflects there is ample, competent and credible evidence for the finder of fact to determine that the appellant, Patrick Washington, participated in - 6 - a common scheme *** to commit the crime of aggravated robbery. Ante at 34. The only question, according to the majority, is whether appellant knew the shotgun was loaded. The majority incorrectly answers this question in the negative. Utilizing the factors set forth in Scott and Lockett compels affirmance. Appellant clearly entered into a common design to commit a robbery and knew that an inherently dangerous instrumen- tality would be used to commit the robbery. It is immaterial whether appellant knew that the shotgun was loaded because an offender using a dangerous instrumentality is deemed to intend the natural and probable consequence thereof. State v. Johnson, supra, at 39. In Johnson, the court affirmed a murder conviction when Johnson's companion did not fire the shotgun but used it as a club to kill the victim. Id. It would be logically inconsis-tent to suppose an offender associating with a person in possession of a shotgun could intend the beating death of a victim with the shotgun but that appellant here could not intend that a shotgun would be utilized in its usual manner to shoot and kill someone. In any event, the facts fully support the juvenile court's finding that appellant knew the shotgun was loaded and would be used to facilitate the robbery. The evidence showed appellant and his associates rehearsed the robbery four times, with the intent to cock the shotgun and use it as a show of force to the victim. Appellant's knowledge of the loaded gun is further substantiated by the fact that while sitting on the porch, he instructed one of the - 7 - others to test-fire the gun. The appellant called a taxi cab and went outside with the other offenders to wait for the taxi. While they waited on the porch, appellant saw a person he "had a problem with" pull into a nearby service station and suggested that one of them take the shotgun and "go and shoot the guy's car." One of the associates shot out the window of the car, specifically showing another of their party how to shoot the weapon, presumably in anticipation of using it for the planned robbery. Moreover, one of the state's witnesses testified the .12 gauge pump action shotgun had "shells" in it. A pump action shotgun, by design, holds more than one shell. By using the word "shells" as a plural, the witness created the reasonable inference that the shotgun not only held more than one shell but that appellant would have known that fact as well, particularly in light of his suggestion that someone in his party shoot the car. It would be unreasonable for this court to find that the juvenile court should have concluded that appellant and his asso- ciates planned an armed robbery, fired the weapon in anticipation of carrying out that robbery and yet ultimately did not intend to load the shotgun for use during the robbery. But we need not make that finding because we must review the evidence by making all reasonable inferences in favor of the state. State v. Bridgeman (1978), 55 Ohio St. 261. The inference the juvenile court did make (and the one that is, on appellate review, most favorable to the state) is that appellant knew the shotgun was loaded. This - 8 - inference was ultimately substantiated by evidence that police found a spent shell casing and a live shell at the scene of the shooting, thus confirming the associate's testimony that the shotgun held "shells." The majority's recitation of facts in the third assignment of error explicitly reaches this same conclusion when it states, "[t]he record before us reflects that Patrick Washington actively participated in the rehearsal of a cab robbery with the use of a sawed off shotgun, whether loaded or unloaded." Importantly, the juvenile court did not create a conclusive inference of intent to murder based upon appellant's participation in planning and executing the aggravated robbery. Again, the majority explicitly confirms this proposition by quoting the juvenile court judge as he announced his decision: We can infer your intention through different actions that took place, different evidence and different things that were said. From the evidence that was presented we can infer you had the intent to murder. You may not be able to figure that out, but its certainly evident. Ante at 21 (emphasis added). By referencing different actions and different evidence, the juvenile court clearly indicated it based its finding of guilt on more than a conclusive inference based upon appellant's participa- tion in the aggravated robbery. Those "different actions" were undoubtedly appellant's knowledge that a loaded shotgun would be used during the commission of the robbery and his knowledge that his associates not only test-fired the shotgun, but they showed one - 9 - of their group how to fire it. There may be other inferences one could make from the record, but our job when reviewing a conviction is to view the facts in a light most favorable to the state and make all reasonable inferences to uphold the judgment of conviction. The only reasonable inference from this evidence is that appellant and his associates planned to use a loaded shotgun during the robbery; whatever occurred as a result of carrying out this plan with the use of a loaded shotgun is deemed intentional as a natural and probable consequence of the use of the weapon. The juvenile court did not utilize a conclusive inference to find appellant's participation in the robbery scheme proved the aggravated murder charge; rather, it made a plausible inference of intent based upon established facts in evidence. This inference was based on competent, credible evidence and should be affirmed. .