COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69320 IN THE MATTER OF: : RACHEL RIVERA, a Minor : : JOURNAL ENTRY Appellant : AND : OPINION : : DATE OF ANNOUNCEMENT OF DECISION AUGUST 22, 1996 CHARACTER OF PROCEEDING Appeal from Court of Common Pleas - Juvenile Court Division Case No. 9504340 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Appellant: For Appellee: JAMES A. DRAPER STEPHANIE TUBBS JONES Cuyahoga County Public Defender Cuyahoga County Prosecutor BARRY KING, Assistant MARK MAJER, Assistant Public Defender JOSEPH RUSSO, Assistant 1910 Carnegie Avenue Prosecuting Attorneys Cleveland, Ohio 44115 1200 Ontario Street Cleveland, Ohio 44113 - 3 - JAMES M. PORTER, J., Appellant Rachel Rivera, a minor, appeals from the Juvenile Court's finding of delinquency arising out of her complicity to commit murder (R.C. 2903.02(A) and 2923.03(A)). Appellant contends the prosecutor's misconduct denied her a fair trial; the trial court erred in not granting a continuance; limiting cross examination; not dismissing the case for lack of sufficient evidence; and in not granting a new trial. We find no reversible error and affirm. Appellant, a 13 year old, was charged with complicity to commit the murder of Francine Lance, age 12, who was beaten and strangled in the presence of several adolescents, including appellant, on September 23, 1994, in an alley on Cleveland's near west side. Detective Martin from the Cleveland Police Homicide Unit responded to the scene at 3:20 p.m. on that date and found the victim in full rigor mortis on the ground. Her pants were down around her ankles and her arm was bent behind her back with a rope tied around her right wrist. A blue and white bandanna was tied tightly around her neck. Dr. Raaf from the Coroner's Office testified the cause of death was cervical compression from the bandanna around the neck with blunt impacts to the head, neck, trunk and extremities, and ruled it a homicide. She testified to the severe beating inflicted on the victim and the numerous contusions and abrasions sustained - 4 - which occurred very close to the time of death and abrasions under the bandanna occurred after death. She testified that it took a minimum of four minutes to strangle the victim to death. Several adolescents who were at the murder scene testified for the State. Nicole Hine testified that Francine Lance, the victim, was with Christina Keating, Jessica Keating, Steven Kidwell, Rachel Rivera and Richard Koballa the morning of the murder. She saw the victim being choked with her own bandanna by Kidwell. The choking lasted a couple of minutes. She testified that Francine, the victim, and Rachel, the appellant, did not like each other. On re-direct examination, she testified that she was not able to testify to how the episode began because she was talking to Christina Keating. She was pretty sure Francesca Flores was present, but she did not remember. Upon refreshing her memory with her prior statement, she testified that Francesca was there. On re-cross examination, she again stated that Rachel, the appellant, was in the alley observing what occurred with Francine, the victim. Barbara Rufty, appellant's cousin, testified for the State. She testified that the appellant was talking about a fight and Rachel told her the day before Francine was murdered that "they" were going to kill Francine. She also testified that she recalled telling the detectives in February 1995 that Rachel told her what happened to Francine. Earl Hartwig testified that he saw a girl matching the victim's description and wearing the clothing that the victim had - 5 - on around 8:00 a.m. on September 23, 1994, in the vicinity of the murder scene. He also stated that she had her hair in a pony tail with something dark colored tied around it. Francesca Flores stated she left Thomas Jefferson Junior High School about 9:30 a.m. with the appellant. They came across Kidwell, Koballa and others and a conversation concerning Francine took place. The conversation was not friendly and they were making fun of her. As their group was walking, they saw Francine on the other side of the street by herself. Rachel stated, "There's Francine," and they called her over. The group started going the opposite way they were originally going before they saw Francine. Rachel and Francine were up front and Rachel was leading the group which went into the alley behind some bushes. Rachel was talking to Francine and then she punched Francine with her fist in the face. Francine fell and everyone jumped in, which stopped her from getting up. Everyone was hitting and kicking her for some period of time. The appellant kicked and punched her numerous times. According to Flores, Steven Kidwell then used the victim's bandanna to strangle her. She was strangled for one to two minutes. The victim's pants were pulled down during the attack. Her hands were tied behind her back with something brown, before Kidwell began to choke her. According to Flores, Rachel stated, just prior to leading the group to the bushes, that they were going to beat her up or something. She also testified that Christina Keating and Jessica - 6 - Keating were present, but did not remember if Nicole Hine was there. She testified that she had received threats about testifying. The court liaison for Cleveland Public Schools testified to the attendance records of the children reflecting their absence from school at various times on September 23, 1994, relative to the time of the murder. Diane Chada, the appellant's mother, was called as a court's witness during the State's case. She stated that she heard Rachel on the phone at 1:00 a.m. on September 23 with the victim and that she was planning on cutting school with Francine. She testified that she called the police about 10:30 a.m. to report her daughter truant from school and that she waited in a car by Raphael Santana's house for about one hour before the police arrived. The police only found Raphael and Christina Keating at the house. They then went to Elizabeth McNeely's house across the street where they found Rachel around 12:00 p.m. Chada stated this was the first time she saw her daughter that day. Detective Garisek from the Cleveland Police Homicide Unit testified that Diana Chada, appellant's mother, told him that Rachel made a phone call at 1:00 a.m. on September 23, 1994, to Francine and planned on cutting school to meet her at the Convenient Store on Clark Avenue. Rachel also told the detective that she was on the phone with the victim at 2:00 a.m. that day and planned to cut school and meet her at the Convenient Store on - 7 - Clark. Rachel also told him that she cut school, at periods one- two, with McNeely, but Francine never showed up. Rachel also told Detective Garisek that she was having problems with Francine and they were supposed to fight, but things worked out and they never fought. The detective testified that he discovered the contents of the letter (State's Ex. 43), two weeks before trial. It was dated September 2, 1994, and was signed by Francine. This letter was found in the victim's purse. The detective also testified that McNeely's house was within a five minute walking distance from the murder scene and the same distance from Thomas Jefferson. Amy Lance, the victim's sister authenticated the writing of the September 2 letter as her sister's handwriting, which stated: "Rachel's starting that rumor again. I hate that fat bitch!" The appellant called no witnesses on her behalf. The Juvenile Court found appellant delinquent and subsequently overruled a motion for a new trial. This timely appeal ensued. We will address the assignments of error in the order presented. I. MISCONDUCT ON THE PART OF THE CUYAHOGA COUNTY PROSECUTORS DENIED APPELLANT THE RIGHT TO A FAIR TRIAL IN VIOLATION OF ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Appellant asserts that the State had information that Christina Keating and Jessica Keating were not present at the crime scene, but failed to divulge this information. The Keatings informed the State on June 22, 1995 (four days before trial) that - 8 - they were recanting their prior written statements and now claiming that they were not present during the murder. The State cannot recall if this information was passed on to appellant's counsel, but maintained there was no prejudice since appellant was on notice that the Keatings' stated they were not at the scene since June 9, 1995 when the prosecution gave appellant's counsel copies of the Keatings' oral and written statements. In their first statements, the Keatings denied being at the scene. The appellant's counsel argues that the State deliberately withheld this evidence, purposefully employed false testimony, and suppressed potentially exculpatory evidence. The United States Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 87 held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosection." See, also, State v. Johnson (1988), 39 Ohio St.3d 48. The prosecution is also required to produce impeachment evidence under this rule. United States v. Bagley (1985), 473 U.S. 667. In State v. Johnson (1988), 39 Ohio St.3d 48, paragraph five of the syllabus, the Court held: In determining whether the prosecution improperly suppressed the evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. - 9 - The record shows that the State complied with the various discovery requests by appellant's counsel. At least by June 9, 1995, the State provided a witness list, a list of physical evidence, written statements and summaries of oral statements to appellant. Appellant had the opportunity to interview the Keatings as they were subpoenaed by the State and were present at trial. At no time did the prosecutor's office ever advise the Keatings not to talk to defense counsel. Moreover, the appellant did not ask for a continuance after the State rested. At that time, appellant was aware that the Keatings were not going to testify for the State and could have subpoenaed the Keatings, but chose not to do so. See State v. Hughes (Nov. 4, 1993), Cuyahoga App. No. 62884, unreported (no Brady violation as State complied with all discovery requests; appellant knew of witness and failed to subpoena her). The appellant alleges the State tried to introduce testimony it knew to be false. Nowhere in the direct examination of Detective Garisek did the State ask questions as to the contents of either of the Keatings' statements. It was appellant's counsel who opened the door to the statements when he asked Detective Garisek on cross-examination about the statements. (Tr. 149). The court warned appellant's counsel that he was taking a chance that the statement would become part of the evidence as a result of his questions and the entirety of the statements might come in. (Tr. 150). - 10 - Despite this opportunity, the court did not allow the State to question the detective regarding the Keatings' statements on redirect examination. Nor did the State offer the statements into evidence at the close of its case. Since the statements were never introduced into evidence, no testimony was elicited by the State regarding the statements, and since it was a bench trial as opposed to a jury trial, the appellant's claim of prejudice is without merit. This Court also finds that there is no reasonable probability that if the Keatings' recantation had been produced before trial, that the trial would have been different. There is no way to definitely determine what the girls would have testified to at trial, and their statement in which they alleged appellant held Francine's legs while she was choked may have been entered to offset their recantation. In any event, we find the statements by the Keating sisters were known to appellant's counsel and were non-prejudicial and non- exculpatory, and therefore, there was no Brady violation. Assignment of Error I is overruled. II. TRIAL COURT ABUSED ITS DISCRETION IN DENYING COUNSEL'S MOTION FOR NEW TRIAL. The appellant's second assignment of error is also without merit. A trial court's decision to grant or deny a motion for new trial is not reversible on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of - 11 - discretion exists where the record shows that the court's attitude was unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413; State v. Adams (1980), 62 Ohio St.2d 151, 157. The discretionary decision to grant a new trial is an extraordinary measure which should be used only when the evidence presented weighs heavily in favor of the moving party. State v. Otten (1986), 33 Ohio App.3d 339, 340. Appellant's main argument on the new trial point reiterates that counsel was not told of the Keatings' recanting their written statements. This argument was previously addressed when we overruled Assignment of Error I. Nevertheless, appellant does not meet the standard set out in State v. Petro (1947), 148 Ohio St. 505, syllabus for abuse of discretion. See, also, State v. Hawkins (1993), 66 Ohio St.3d 339, 350; State v. Tijerna (1994), 99 Ohio App.3d 7, 11. The first standard is that the evidence must have been discovered since trial, i.e., newly discovered evidence. While the State cannot recall if it informed appellant of the last statement made by the Keatings recanting their presence at the scene, clearly appellant was aware of the prior statements wherein the Keatings' claimed they were not present, as these statements were given to counsel on June 9, 1995. The second prong of the test in Petro, supra, is that by due diligence this evidence could not have been found. The inconsistency that the Keatings were or were not present was known - 12 - by appellant as previously stated. Defense counsel knew the Keatings had given written statements to the police. There was no reason why the defense could not have interviewed them. Furthermore, defense counsel could have called the Keatings as witnesses, when at the end of the State's case, it was clear they were not going to testify. The third prong of the test in Petro, supra, is that the evidence is not merely cumulative, impeaching or contradictory to the former evidence. The evidence of the Keatings' statements is clearly impeachment evidence that would have been used by appellant to impeach Nicole Hine's and Francesca Flores' testimony, who both testified that the Keatings were present at the murder scene. The final prong of the test in Petro, supra, is that there is a strong probability of a change in the result of the trial. The bare assertion made by appellant is that the State's witnesses would become "more suspect." However, the Keatings did not testify; no one can say for certain what their testimony would have been and their written statements, clearly implicating the appellant, may have been entered as evidence to off-set their recanting statements. As stated in State v. Curnutt (1948), 84 Ohio App. 101, held in paragraph three of its syllabus: Where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at trial does not necessarily or as a matter of law, entitle the defendant to a new trial. The determination of such matter rests in the sound - 13 - discretion of the trial court, whose actions will not be set aside except for clear and manifest abuse. In the case at hand, the Keatings never testified and appellant was aware of the prior oral statements made by the Keatings that they were not at the scene of the murder. We find no evidence that the trial court abused its discretion in denying appellant's motion for new trial. Appellant's Assignment of Error II is overruled. III. APPELLANT'S RIGHTS UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE COURT DENIED HER TRIAL COUNSEL THE RIGHT TO CROSS EXAMINE A STATE WITNESS. Appellant argues that her constitutional rights were violated since she was not allowed to cross-examine Barbara Rufty. The record is clear, however, that appellant's counsel did in fact cross-examine this witness. (Tr. 175-181). The appellant was not permitted by the court to conduct recross-examination. (Tr. 187). The Ohio Supreme Court in State v. Faulkner (1978), 56 Ohio St.2d 42 at 46 held: Although a defendant must have the opportunity to cross-examine all witnesses against him as a matter of right, Kent v. State (1884), 42 Ohio St. 426; Weaver v. State (1929), 120 Ohio St. 97, the opportunity to recross-examine a witness is within the discretion of the trial court. Liberty v. Mutual Ins. Co. v. Gould (1976), 266 S.C. 521, 224 S.E.2d 715; United States v. Morris (C.A.5, 1973), 485 F.2d 1385. Only where the prosecution inquires into new areas during redirect examination must the - 14 - trial court allow the defense the opportunity to recross-examine. See, Alford v. United States (1931), 282 U.S. 687. See, also, Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 204; State v. Mundy (1994), 99 Ohio App.3d 275, 316; State v. Small (Nov. 2, 1995), Cuyahoga App. No. 68167, unreported; Barna v. Randall Park Associates (July 28, 1994), Cuyahoga App. No. 65998, unreported. The appellant has not shown the trial court abused its discretion. The basis of appellant's argument is that he was not allowed to re-question the witness regarding what appellant told the witness about Francine's death in February 1995. (Tr. 185). Appellant's counsel, on cross-examination, asked: Q. You didn't tell anybody that Rachel told you about Francine Lance's death? A. Right. Q. She never told you anything about that? A. No. Q. So if nobody said that, they'd be lying? A. Right. (Tr. 180-181). This alludes to the fact that Detective Garisek was going to testify that Rufty told him that appellant told Rufty about the murder when they ran away together. The trial court then let the State question the witness regarding what she told Detective Garisek as to what Rachel Rivera told her about Francine's death, reasoning that appellant opened the door to that questioning by the State. Rufty then admitted - 15 - that the statement she made to the detective was the truth regarding the fact that Rachel told her she was there when Francine was murdered and that "Jason" strangled her with a bandanna from her hair. (Tr. 185-186). There was no error in allowing the testimony in question into evidence since it was to rehabilitate the State's witness. The appellant opened the door to that rehabilitation by the State. Therefore, since the State merely inquired into areas raised by the appellant's counsel, no new matters were explored and recross examination was properly denied. See State v. Faulkner, supra (no abuse of discretion in not permitting recross when matters raised on redirect were raised by defense counsel on cross exam); State v. Small, supra (re-direct examination of the witnesses merely clarified testimony brought forth on cross examination so court did not err in prohibiting recross examination). The trial court did not abuse its discretion. Assignment of Error III is overruled. IV. APPELLANT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AN THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE COURT DENIED A MOTION TO DISMISS THE COMPLAINT. The complaint stated as follows: Det. Medlea, Cleveland Police, being first duly sworn, says that Rachel Rivera, a child of about the age of 13 years, is a Delinquent Child, because on or about September 23, 1994 in the vicinity of 3217 West 48 Street, Cleveland, Ohio, she did unlawfully acting with the kind of culpability required for the commission of an offense, aid or abet another - 16 - in committing the offense of murder against Francis Ann Lance, in violation of Section 2903.02(A) of the Ohio Revised Code, an unclassified felony, in violation of Section 2923.03(A)(2) of the Ohio Revised Code, an unclassified felony. As far as the complaint not adequately detailing the elements of the crime charged, Juv.R. 10 only requires that the complaint contain "the essential facts which bring the proceeding within the jurisdiction of the court" and the "numerical designation of the statute or ordinance alleged to have been violated." R.C. 2151.23 establishes the jurisdiction of the juvenile court and provides in pertinent part: (A) The juvenile court has exclusive original jurisdiction under the Revised Code: (1) Concerning any child who on or about the date specified in the complaint is alleged to be a juvenile traffic offender, or a delinquent, unruly, abused, neglected, or dependent child. In the case herein, the complaint alleges that the defendant was a delinquent child, violated R.C. 2903.02(A) and 2923.03(A), and that the act of delinquency occurred at a specific place on a specific date in Cuyahoga County. This was enough to invoke the jurisdiction of the juvenile court. Therefore, Juv.R. 10 was complied with. R.C. 2151.27(A) states in pertinent part: The sworn complaint may be upon information and belief, and in addition to the allegation that the child is a delinquent *** the complaint shall allege the particular facts upon which the allegation that the child is a delinquent *** is based. - 17 - In construing this section, the court in In re Burgess (1984), 13 Ohio App. 3d 374, citing In re Sims (1983), 13 Ohio App.3d 37 held: R.C. 2151.27 permits anyone having knowledge of a child who appears to be delinquent to file a sworn complaint. The complaint must allege "*** particular facts upon which the allegation of delinquency *** is based." R.C. 2151.27. See also, Juv.R. 10(B)(1). In In re Sims (1983), 13 Ohio App.3d 37, this court noted that only the facts essential to the complaint need be stated therein as we would not "*** hypertechnically construe the Juvenile Rules." *** As in Sims, supra, our view might differ if it appeared that the facts alleged in the complaint were intentionally abbreviated and that at the adjudicatory hearing the party was "surprised" by a parade of witnesses alleging incidents bearing no relationship to the facts alleged. In the case herein, the facts essential to the complaint were stated. As for appellant's allegation that the exact details of what occurred were not detailed in the complaint, neither the statute nor the rules require this. Furthermore, the prosecution gave appellant's counsel a copy of summaries of the oral statements it obtained from the various witnesses and also copies of the written statements. This was enough to put counsel on notice of the details of the crime and prevented any surprise at the adjudicatory hearing. Appellant also argues that, since there may have been evidence of prior calculation and design, the charge should have been aggravated murder under R.C. 2903.01. The appellant could not have - 18 - been prejudiced by the lesser charge of murder compared with aggravated murder. The appellant also argues that, "the State amended the complaint at trial so as to enable the prosecution to seek a conviction on a charge not brought by the complaint ***." (Aplnt's Brf. at 26). The record does not support this claim. The authority cited by appellant, Stirone v. United States (1960), 361 U.S. 212, has no application since Stirone was found guilty of a crime of higher degree than that for which he was indicted. Here, appellant was found guilty of the charge in the complaint. Nor do appellant's authorities, Harris v. State (1932), 125 Ohio St. 257, 264 and State v. Wozniak (1961), 172 Ohio St. 517, 520, support his argument. Those cases deal with a vital element identifying the crime omitted from the indictment. Here, the complaint was sufficient. Further, R.C. 2923.03(F) specifically states that a charge of complicity may be stated in terms of the complicity statute or in terms of the principal offense. Assignment of Error IV is overruled. V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED COUNSEL'S REQUEST FOR A CONTINUANCE WHERE THE STATE WAS SUBMITTING WITNESSES DISCOVERY A WEEK BEFORE TRIAL. The appellant argues that he was not able to adequately prepare a defense and should have been granted a continuance. Prior to the start of trial on June 23, appellant's counsel asked for a continuance, which was overruled. - 19 - Prior to trial on June 26, appellant renewed his motion to dismiss the complaint, but did not raise any objection to the commencement of trial or renew a request for a continuance. The court asked appellant's counsel if the bill of particulars, written statements, and summaries of oral statements gave him notice of the State's case and enabled counsel to adequately prepare his defense. Counsel responded, "I suspect that they would, your Honor." (Tr. 2). Appellant received the State's response to discovery listing 44 witnesses and eight evidentiary items on June 8, 1995. On June 9, 1995, appellant received nine written statements and 41 oral statements. On June 19, 1995, they received a bill of particulars. Supplemental discovery was provided on June 20, 1995, including three additional witnesses (Supp. Tr., Mot. in Opp. 8-29) and (June 23, Tr. 12, 13, 15, 24). Finally, appellant was informed on June 23, 1995, that the State intended to call the victim's sister, Amy Lance. (Tr. 24). The granting or denial of a motion for a continuance is a matter within the sound discretion of the trial court. State v. Burke (1995), 73 Ohio St.3d 399,407. An appellate court must not disturb a trial court's decision denying a motion for continuance absent an abuse of discretion. State v. Grant (1993), 67 Ohio St.3d 465, 479. The reviewing court must weigh the potential prejudice to the defendant against the trial court's right to control its own docket and the public's interest in the prompt and - 20 - efficient dispatch of justice. State v. Powell (1990), 49 Ohio St.3d 255, 259. Our review of the record shows that the trial court did not abuse its discretion in denying appellant's counsel's motion for a continuance. Juv.R. 23 states that "continuances shall be granted only when imperative to secure fair treatment for the parties." Since appellant appeared to have evidence and information to adequately prepare for trial in sufficient time, the continuance appellant sought was not "imperative to secure a fair treatment for the parties." Assignment of Error V is overruled. VI. THE ADJUDICATION OF DELINQUENCY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT AN ACT WHICH WOULD BE COMPLICITY TO COMMIT MURDER, IF COMMITTED BY AN ADULT, HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. In determining whether a judgment 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 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, at 175. It is fundamental that the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. - 21 - State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the State has proved the offenses beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. A review of the record herein established that the State provided sufficient evidence to allow the Juvenile Court to conclude that appellant was guilty of complicity to murder pursuant to R.C. 2903.02(A) and R.C. 2923.03(A)(2). We find no basis for reversing its findings as against the manifest weight of the evidence. Evidence at trial was presented showing that the intent of the group of juveniles in leading Francine down the alley and beating her was to eventually kill her, as appellant's cousin, Barbara Rufty, testified that appellant had told her the night before the murder that "they" were going to kill Francine. Frances Flores testified that appellant was the one who spotted Francine; called her over to the group; led her to the alley; and struck the blow which caused Francine to fall to the ground. The group, including appellant, then proceeded to kick and punch Francine thereby further incapacitating her and then Kidwell strangled her. Therefore, although appellant did not actually strangle Francine, she did set in motion the events leading up to the murder and struck the first blow rendering the victim vulnerable. According to her statement with Rufty, she knew the group intended to "kill" - 22 - Francine. An aider and abettor is "[o]ne who assists another in the accomplishment of a common design or purpose; he must be aware of, and consent to, such design or purpose." State v. Sims (1983), 10 Ohio App.3d 56, 58. This Court in State v. Williams (1990), 67 Ohio App.3d 677, 683 held: When a person, acting individually or in concert with another, sets in motion a sequence of events, the foreseeable consequences of which were known or should have been known to him at the time, he is criminally liable for the direct, proximate and inevitable consequences of death resulting from his original criminal act. In the Williams case, this Court held that the defendant was liable for the death caused by someone else running over the victim with a truck, as the defendant incited the mob to beat up the victim. We held, "the nature of the inception of the attack made it reasonably foreseeable that a vengeful and angry mob could ultimately seek retribution by hitting Gilmore with the truck or otherwise." Id. at 684. We also held, "since an aider and abettor is prosecuted as a principal pursuant to R.C. 2923.03(F), we cannot say the inclusion or omission of the [aiding and abetting] instruction in this case would have produced a different outcome." Id. In State v. Luff (1993), 85 Ohio App.3d 785, 805, the court held that an instruction on aiding and abetting was appropriate where the evidence showed the defendant knew of the plot to kill the victims; assisted in digging the victims' graves and lured them into the barn to be shot by a co-defendant. - 23 - In the case herein, there was no evidence minimizing appellant's role in the crime. Appellant knew of the plan to kill Francine; she lured Francine to the murder scene; she administered the first blow to Francine causing her to fall; she joined in on the beating of Francine which incapacitated her allowing Kidwell to easily strangle her. The evidence was clearly sufficient to support a finding of delinquency based on appellant's complicity to murder and the finding was also supported by the manifest weight of the evidence. Assignment of Error VI is overruled. Conviction of delinquency affirmed. - 24 - 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, Juvenile Court Division, 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. LEO SPELLACY, C.J., and NAHRA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .