COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69314 STATE OF OHIO, : : : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : TIMOTHY SIMMS, JR., : OPINION : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-320010 JUDGMENT: MODIFIED, AND AS MODIFIED, AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: A. Steven Dever James P. Boyle Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: James D. Ingalls 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Timothy Simms, Jr., is appealing his conviction for aggravated murder with a firearm specification. For the following reasons, the decision of the trial court is affirmed, as modified. On January 26, 1995, Simms ran into his longtime friend Milton Whitlow, nicknamed "Ponnie", at a convenient store. The two men smoked a marijuana cigarette, and then went drinking at a nearby bar. Simms and Ponnie left the bar, and drove to the home of their friend, Adrienne Wallace. Adrienne's mother, Brenda, was celebrating her birthday. During the party, Ponnie, Simms, Brenda and Adrienne smoked crack cocaine. Simms left to talk to the upstairs neighbors, Seth Terrell and Teresa Hampton. Ponnie walked upstairs and knocked on the door, looking for Simms. Terrell told Ponnie that Simms would be downstairs shortly. Ponnie continued to pound on the door, demanding to see Simms. Simms went downstairs and confronted Ponnie in the Wallace's kitchen about causing the commotion upstairs. Adrienne Wallace testified that Simms pulled a gun out of his coat and raised the gun to hit Ponnie in the face. At that point, Adrienne ran out of the room, dragging Brenda with her. Adrienne hid in the closet. She could hear a struggle going on in the kitchen and Ponnie calling her and her mother for help. Adrienne peeped into the kitchen with her brother, Donnie Wallace. She saw Simms on top of Ponnie, with Simm's arm around Ponnie's neck. When her eyes met Simm's eyes, she ran out of the house. She heard -3- three gunshots one right after another. The entire fight lasted five to ten minutes. When she came back inside, Ponnie was lying face down on the kitchen floor. Donnie Wallace testified that at 3:30 a.m., he was awakened by a scuffle in the kitchen. He went downstairs, and saw Simms on top of Ponnie, holding Ponnie in a choke hold. Donnie went upstairs to get a baseball bat to break up the fight. When he returned, Simms was pointing a gun to Ponnie's head. Donnie ran out to the living room, where he and Adrienne peeked in on the fight periodically. He heard Ponnie calling his mother and sister for help. Ponnie said three times, "you got me, don't kill me". He heard a gunshot and he and Adrienne ran outside. Two minutes elapsed and he heard the kitchen window break. Two more shots were fired. One minute later, a fourth gunshot was fired. Ponnie's body was in a different location than when Donnie peeked in on the fight. The police arrived at 4:15 a.m.. Brenda Wallace testified that she left the kitchen when Simms produced the gun from his coat. She hid in the closet with Adrienne. One gunshot was fired, and then Ponnie called Brenda and Adrienne for help. A few minutes later, three consecutive gunshots were fired. Simms testified that when he confronted Ponnie about the commotion upstairs, Ponnie was in a rage and was "in his face". Simms punched Ponnie in the face and cut him with the large ring on his finger. Simms and Ponnie were fighting, and a gun fell out of Ponnie's coat. The two men struggled over the gun, it went off and -4- struck Ponnie in the shoulder. Simms tried to get out of the kitchen, but Ponnie grabbed a butcher knife off the kitchen counter and came after him. Simms knocked the knife out of Ponnie's hand. Ponnie was on top of him and had the gun under Simms' chin. Simms put his hand behind the hammer. The gun went off and Ponnie, who was on his side, was shot. Simms ran out of the house. On cross- examination, Simms stated that once he knocked Ponnie to the ground, Ponnie did not get back up. No knife was found at the scene. Brenda Wallace testified there was no butcher knife on the counter. The coroner testified that the fatal wound sustained by Milton Whitlow was a gunshot wound to the left upper chest, just below the collarbone. Whitlow also had a gunshot wound to the top left shoulder, which would disable the left arm, and make it difficult to grasp objects. The victim sustained four or five lacerations to the face, consistent with pistol-whipping. The cuts to the face could be made by a ring, but really suggested a much larger object. Jeffrey Wagner of the Forensic Unit testified that the gun was in contact with the victim's chest when fired. One shot was fired through the victim's jacket, missing the victim. The gun was about 18 inches from the victim's shoulder when fired. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A), OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. -5- When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 520, State v. Jenks (1991), 61 Ohio St.3d 259. The essential elements of aggravated murder are that a person (1) purposefully, (2) and with prior calculation and design, (3) causes the death of another. R.C. 2903.01. Appellant contends there was not sufficient evidence to show prior calculation and design. Prior calculation and design means the accused devised a plan or scheme to kill, and engaged in a studied analysis of the means by which to kill. State v. Jenkins (1976), 48 Ohio App.2d 99. The evidence must show: (1) the defendant had sufficient time and opportunity to plan the homicide; and (2) the circumstances show a scheme designed to implement the calculated design to kill. State v. Cotton (1978), 56 Ohio St.2d 8. Momentary or instantaneous deliberation is not sufficient to constitute prior calculation and design. Id. However, a prolonged thought process is not required. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 196, State v. Bailey (1992), 90 Ohio App.3d 58. There are three factors to consider in deciding whether a homicide was committed with prior calculation and design: (1) whether the accused knew the victim prior to the crime and whether the relationship was strained, (2) whether the accused gave thought and preparation to the weapon used or site of -6- the murder, (3) whether the act was drawn out over a period of time or resulted from an instantaneous eruption of events. Jenkins, supra, State v. Mulkey (1994), 98 Ohio App.3d 773, 779. This situation involved two friends drinking and partying together for several hours before a fight occurred during which the killing occurred. The killing was part of an instantaneous eruption of events. There was no evidence appellant planned the place or method of the killing. The facts and circumstances indicate there was no prior calculation and design. See Jenkins, Mulkey, supra. All the witnesses testified that appellant and the victim were friendly and having a good time before the argument ensued. If appellant calculated and designed the death of the victim, it had to have been during the fight. The facts do not show that appellant had the time or opportunity to plan the killing during the fight, nor do the circumstances show appellant planned the murder. The fact that appellant had the victim pinned to the ground and held a gun to the victim's head at one time during the fight does not show appellant planned to kill the victim. Cf. State v. D'Ambrosio (1993), 67 Ohio St.3d 185. The evidence does not show appellant had the victim pinned for the remainder of the fight. The witnesses heard a struggle going on and did not see the whole fight. While appellant said the victim never got back up once appellant had him down, further struggle could have occurred on the floor. Donnie Wallace testified that after the killing, the -7- victim's body was in a different location from when he saw appellant holding down the victim. Neither does the evidence that several gunshots were fired prove that appellant formulated a plan to kill Ponnie during the struggle. Although there was evidence Ponnie was injured and calling for help, this does not warrant an inference that the fight was ended and that defendant formulated a plan to kill Ponnie. This case is distinguishable from cases where witnesses saw the defendant deliberately pursuing or stopping to shoot an injured person, who was trying to crawl away. Cf. Cotton, supra, State v. Claytor (1991), 61 Ohio St.3d 234. There is no evidence of what occurred between the victim and the defendant in between the gun shots. Thus, there is no evidence to indicate that appellant formed a plan to kill between the gun shots. There is no evidence appellant made a scheme or design to kill Ponnie, either during the few minutes between the gunshots, or at any other time. See Mulkey, supra. There is no evidence appellant engaged in a studied analysis of the means by which to kill. Jenkins, supra. The facts here show an instantaneous eruption of events; not prior calculation and design. The defendant did not have more than a few moments to formulate a plan to kill. The fight was one continuous course of events and though there was sufficient evidence to show an intent to kill, there was no evidence that such intent was the result of prior calculation and design. To hold there was prior calculation and design in a case such as this would -8- be to return to the old standard of "deliberate and premeditated malice", which was abolished by the legislature. See R.C. 2903.01, Jenkins, supra. There was sufficient evidence that appellant committed murder, i.e. that appellant purposely caused the victim's death. R.C. 2903.02. Appellant held the gun against the victim's chest and fired. Accordingly, appellant's first assignment of error is sustained in part. The conviction of aggravated murder is modified to a conviction of murder. Otherwise, appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining if the conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the trier of fact 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. The reviewing court should consider whether the evidence is credible or incredible, certain or uncertain, reliable or unreliable, conflicting, or fragmentary, whether a witness was impeached, and the personal interest a witness has in testifying. -9- State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court will not reverse a jury verdict where there is competent credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. Appellant contends the jury lost its way in failing to believe appellant's testimony that he killed the victim in self defense. Appellant argues the lack of drug paraphernalia at the crime scene and a beer bottle with blood on the rim in the kitchen garbage indicate the crime scene was tainted. The knife must have been removed from the crime scene. Appellant also asserts the testimony of Brenda, Adrienne and Donnie Wallace contradicted each other, and can not be believed. While some of the details of the Wallaces' testimony were contradictory, their basic version of the events was the same. The jury did not lose its way in finding the Wallaces' testimony credible. Credibility is primarily for the trier of fact. State v. Antill (1964), 176 Ohio St. 61. The jury did not lose its way in failing to believe appellant's version of the facts. Appellant's story was contradicted by the Wallaces' testimony, the coroner's testimony and even by appellant's own testimony. Appellant's version of the facts was incredible. The jury did not lose its way in rejecting appellant's testimony and finding that appellant did not act in self defense. In weighing all the evidence and considering the credibility of the witnesses, we conclude that a conviction for murder was not against the manifest weight of the evidence. -10- Accordingly, this assignment of error is overruled. The conviction is modified from a conviction of aggravated murder to a conviction of murder. The decision of the trial court is affirmed in all other respects. This case is remanded to the trial court for further proceedings consistent with this opinion. -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. BLACKMON, P.J., CONCURS. O'DONNELL, J., DISSENTS. (See attached Dissenting JOSEPH J. NAHRA Opinion.) JUDGE 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 NO. 69314 : STATE OF OHIO : : : DISSENTING Plaintiff-Appellee : : OPINION vs. : : : TIMOTHY SIMMS, JR. : : : Defendant-Appellant : : DATE: SEPTEMBER 19, 1996 O'DONNELL, J., DISSENTING: I respectfully dissent from the majority opinion in this case because I believe the state presented sufficient evidence of prior calculation and design to prove Simms guilty of aggravated murder. The Ohio Supreme Court examined the prior calculation and design element of aggravated murder in State v. Cotton (1978), 56 Ohio St.2d 8 and stated in paragraph three of its syllabus: Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. -2- In Cotton, the defendant, while scuffling with a police officer, took the officer's gun and unsteadily fired, striking another officer in the arm. He and the first officer continued to scuffle and two more shots were fired hitting the first officer in his bulletproof vest. Defendant then ran toward his car and came to the officer who had been struck in the arm and was crawling away. The defendant stopped, held the gun in both hands, and fired a fatal shot at the downed officer. The Ohio Supreme Court concluded the defendant had sufficient time to calculate the murder and the circumstances justified a finding of design. Similarly, in this case, the evidence revealed the presence of sufficient time and an opportunity to plan the act of homicide, and the circumstances show a scheme designed to implement the calculated decision to kill. The state presented evidence here that Simms pulled a gun on Whitlow and struck him with it. Witnesses testified to a physical struggle between the two in the kitchen and to multiple gunshots being fired. The autopsy revealed multiple facial bruises to the head and a gunshot wound to Whitlow's left shoulder which although not fatal, disabled his arm. Simms himself testified that once he knocked Whitlow to the floor, he did not get up. Donnie Wallace heard Whitlow plead for his life by asking Simms not to kill him. After the final shot, Simms left the kitchen and no additional sounds were heard. -3- The autopsy protocol reflects an entrance wound of the left chest located 59 inches above the heel and a partial exit wound caused by a bullet fragment separating from the bullet mass at 52-1/2 inches above the heel. It further reveals that the bullet traveled downward from front to back and from right to left. Construing this evidence most favorably to the state, as we are required to do under State v. Jenks (1991), 61 Ohio St.3d 259, the jury in this instance could have found the element of prior calculation and design proven beyond a reasonable doubt. The evidence demonstrated that after scuffling with Whitlow, Simms obtained the upper hand and pinned the injured and bleeding Whitlow face-down on the floor, thus demonstrating that Simms had immobilized Whitlow and gained control of the situation. Further evidence revealed that Simms had Whitlow in a choke hold pleading for his life and that Whitlow was found dead face down on the kitchen floor. This evidence in conjunction with evidence regarding the location of the entrance wound in the left chest and the bullet trajectory, downward, front to back and right to left, and the fact that Whitlow also had a bullet wound to his left shoulder, all lead to a reasonable inference that Simms, while pinning him face-down on the floor, grabbed Whitlow's right shoulder, began to pull him from the floor and shot into his chest before dropping him back to the floor. Such evidence demonstrates sufficient time to constitute prior calculation and the circumstances demonstrate a scheme designed to kill as required by Cotton, supra. Accordingly, I conclude this -4- evidence, if believed, would convince the average mind of the defendant's guilt of aggravated murder beyond a reasonable doubt. Therefore, I would affirm the conviction in its entirety, and I .