COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69936 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD RAY WILLIAMS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 31, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-315917 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JOHN B. GIBBONS, ESQ. Cuyahoga County Prosecutor 2000 Standard Building THOMAS E. CONWAY, Assistant 1370 Ontario Street Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Donald Ray Williams appeals from his convictions following a jury trial for murder (R.C. 2903.01) with a firearm specification and two counts of having a weapon while under disability (R.C. 2923.13) with firearm and violence specifications. Defendant contends the trial court erred in admitting testimony; in denying defendant's motion to acquit; and in instructing the jury on the lesser included offense of murder. Defendant also asserts the conviction was against the manifest weight of the evidence. We find no error and affirm. The State charged that defendant shot and killed Michael Hill by shooting him in the back of the head at close range in the early morning of July 6, 1994. The State's principal eye witness was Deon Walker who testified he was in Hill's car when the victim was shot by defendant. Walker testified that he had fallen asleep watching television at his grandparents' house located at 3439 East 113th Street in Cleveland when Lamarco Carter ("Roo") knocked on his door after midnight and told him that the defendant wanted to talk to him. Deon went out to Roo's car to talk to the defendant, who was in the back seat. Defendant's associate, a man named "Kenny," was also in the car. Defendant told Walker that he needed $5,000 to get out of town and if he did not get it, somebody was going to get killed. Walker took this as a personal threat to him. Defendant showed Walker his guns. - 3 - Walker told defendant that he knew Michael Hill who would have some money. The men then drove to a pay phone and called Michael Hill who, according to his girlfriend, was not home. They decided to drive over to Hill's house. At Hill's house, Hill's girlfriend, Toni Denise Traylor, refused to answer the door, but yelled out an upstairs window that Hill was not home. As the men were about to leave, Hill drove up. Walker testified that he and Hill began smoking marijuana. After this, Walker, Hill and the defendant all got into Hill's car, with the victim driving. Walker was in the front passenger seat and defendant was in the back behind the driver-victim. They drove through Woodhill Park following directions given by defendant. After driving through the park, Walker testified that the defendant told the victim that he wanted to be let out at Bessemer. The victim pulled the car over at either E. 96th or 99th street, and as soon as he did so, Walker testified that he heard a "click - clack," the defendant pulled the victim's head back, placed the gun directly against his head, and then shot him. After the shooting, Walker testified that Kenny, who had been following in the Blazer, ran over to the car with towels and they began wiping down the inside of the car. Kenny began wiping the rear area where the defendant sat and Walker started wiping down the steering wheel. Walker testified that he only wiped the car for a few seconds before he was led away to Roo's car by defendant. Kenny then finished wiping down the vehicle. - 4 - The three men then drove off in Roo's car to a Marathon gas station where Walker was dropped off. Walker testified that he walked home, past the police station, and to a vacant lot next to his grandparent's house where he burned his clothing because they had blood on them. After burning his clothes, Walker testified that he attempted to go to sleep, but was unable to do so. He then called his friend, Alandis Gullat, who came over to the grandparent's home. The two talked and then Gullat drove Walker to the Fourth District Police Station to tell them about the shooting. Lamarco Carter ("Roo") also testified to the events prior to the shooting, corroborating defendant's need for money to leave the country; Roo's advice to defendant that Walker might have the money; the trip to Walker's house with defendant; the phone call to Hill's house; and the plan to go there and wait for Hill. Roo testified that he was initially approached by the defendant in his search for money. He led defendant to Deon Walker, who, in turn, led defendant to the victim. Cleveland Police Officer Robert Petchler testified that he received a dead body call on July 6, 1994 at 6:38 a.m. Upon arriving at the scene, he found Hill slumped over dead in the front seat of his car. Officer Petchler saw some brown paper and plastic bags in the back seat behind the driver, which, in his opinion, left no room for anyone to be seated in the back seat behind the - 5 - driver. He testified that there was blood on both of the front seats. Detective Richard Martin testified that an examination of the car did not reveal a spent shell casing or any fingerprints. Blood and brain matter of the victim was found on the front passenger seat, but there was none of this material in the back seat, except for what had dripped down between the seats. Martin also confirmed the testimony of Officer Petchler that there was no room for anyone to sit behind the driver because of the bags. The Coroner's assistant testified to the autopsy results on Michael Hill which revealed that he died as a result of a single gunshot wound to the head with perforations of the skull and brain. The entrance wound was at the top of the head with an exit wound near the left temple; the path of the bullet was down and towards the left. This gunshot wound was not a contact wound, meaning that the barrel of the gun was not in contact with the skull as it was fired. Examination of the body revealed no strippling or fouling which indicates that the muzzle of the gun was more than two feet behind the victim's skull. The victim had a blood alcohol content of .02 percent, but no evidence of drug use. Detective Thomas Lucey testified that he performed a gunshot residue test on Michael Hill's car. The test revealed only one lead particle on the driver's headrest. The spent projectile (.380 caliber) was located in the front seat driver's door post. He testified that the spent projectile was located up and to the left - 6 - of the steering wheel. Detective Lucey testified that no gunshot residues were performed on Deon Walker and that the origin of the shot which killed Hill was untraceable. Sharon Rosenberg of the Trace Evidence Laboratory testified that she performed a gunshot residue test on the victim, Michael Hill. The results indicated gunshot residue on the back of the victim's right hand, which would be facing the front seat passenger and in proximity to the weapon's discharge. Ms. Rosenberg concurred with the coroner's opinion that the muzzle of the gun was more than two to three feet from the victim's head, and more than six inches from his hand when it was discharged. Without defense objections, Special Agent David Hayes of the Federal Bureau of Alcohol, Tobacco & Firearms testified that the defendant had a pending Federal indictment on drug and weapon charges set for trial on February 28, 1994. Defendant failed to appear for that trial, and a warrant was issued for his arrest. Following the issuance of the arrest warrant, Agent Hayes and other law enforcement officers began to search for the defendant by interviewing known family and friends and by checking places where he was known to frequent. Agent Hayes later learned that defendant had turned himself into the authorities. On defendant's case in chief, he called Heavenia Turner who testified that she saw Walker the week after the murder and he told her that defendant did not kill Hill, but that he had to say that the defendant did in order to get released from jail. Ms. Turner - 7 - further testified that the defendant was once her boyfriend and the father of her young son. She also testified to visiting the defendant in prison on a number of occasions while he was awaiting trial. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE TESTIMONY OF SPECIAL AGENT DAVID HAYES AS ITS PREJUDICIAL EFFECT OUTWEIGHED ITS PROBATIVE VALUE. The key issue in this case was the identity of Michael Hill's murderer. The State's theory was that the murder of Hill was the direct result of an attempt by defendant to rob Hill to furnish the funds to flee his federal prosecution. Thus, motive for the crime was relevant to the proceedings. Evid.R. 404(B) reads as follows: (B) Other crimes, wrongs or acts. Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. R.C. 2945.59 also states: 2945.59 Proof of defendant's motive In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of - 8 - mistake or accident on his part, or the defen- dant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. The Ohio Supreme Court addressed the issue of "other act" testimony in State v. Broom (1988), 40 Ohio St.3d 277, and held that: The rule and the statute contemplate acts which may or may not be similar to the crime at issue. If the other act does in fact "tend to show" by substantial proof any of those things enumerated, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, then evidence of the other act may be admissible. State v. Flonnory (1972), 31 Ohio St.2d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, followed. Id. at 282. For example, evidence of drug dealing activities as a predicate for motive has also been held to be properly admissible. In State v. Hill (1987), 37 Ohio App.3d 72, the Court held that: Testimony of appellant's past drug dealing was relevant because it tended to show that appellant was capable of selling large quantities of marijuana and corroborated appellant's explanation to the group on the night of the murder that someone had stolen five hundred pounds of marijuana from him. The testimony was material because it created a framework for considering whether appellant was motivated by revenge. *** All of the testimony was admissible because it underpinned the prosecution's theory of appellant's motive and plan for the crime with which he was charged, and plainly it was not offered to demonstrate his propensity for criminal activity. Id. at 74-75. - 9 - As we recently stated in State v. Brantley (Sept. 22, 1994), Cuyahoga App. No. 65933, unreported at 6: *** evidence of appellant's drug activities was admissible to show his motive and intent to kill Hurd. R.C. 2945.59. Further, such evidence helps to place the entire matter into context for the jury. Defendant's efforts to avoid prosecution on federal drug and weapon charges, and his need for cash were relevant to both his motive for robbery and murder of Hill and his identity as the killer in corroboration of other witnesses. This evidence also placed the entire matter in context for the jury. Defense counsel concedes (Aplnt's Brf. at 10) that this evidence did "*** verify the story given by Deon Walker ***." Since Walker was an eyewitness who identified defendant as the killer, it would appear that the "other act" evidence was also relevant and probative on the issue of motive, plan and identity. All the actors in this case, including the victim, were involved in the drug trade. The victim was targeted following Walker's statement to the defendant that his business associate, Mike Hill, was worth $20,000. In the instant case, the defendant's past criminal activities were not admitted for the purposes of proving defendant had a criminal character or committed the instant crime. The testimony was properly admitted to prove defendant's identity and knowledge, as well as his plan and scheme to obtain money in committing the crime for which he was tried. State v. Lowe (1994), 69 Ohio St.3d - 10 - 527, 531; State v. Jamison (1990), 49 Ohio St.3d 182; State v. Cloud (Sept. 28, 1995), Cuyahoga App. No. 68439, unreported. Assignment of Error I is overruled. II. 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. III. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: 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 - 11 - 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 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60; State v. Ballew (1996), 76 Ohio St.3d 244, 249. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. In the case at bar, the jury obviously found Deon Walker and Lamarco Carter to be credible and reliable witnesses. Contrary to defense counsel's contentions, the physical and circumstantial evidence corroborated the testimony of these witnesses. Although there was potentially conflicting evidence, the testimony of the coroner indicated, from the path of the bullet, - 12 - that the shot was fired from the back seat, where Walker testified defendant was sitting. The entry and exit wound at the top of the head and the left temple, respectively, as well as the physical finding of the bullet in the driver's door post, confirmed this conclusion. The fact that defendant needed money to flee from the federal prosecution supported a motive for the killing as well as the identity of the killer. There was the eye-witness account of Walker which the jury was at liberty to believe or disbelieve. The trace evidence tended to support both the State and defense theories of the case. The evidence was therefore clearly sufficient to establish the elements of the crime. For the same reasons, it cannot be said that the convictions were against the manifest weight of the evidence. Assignments of Error II and III are overruled. IV. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE LESSER INCLUDED OFFENSE OF MURDER. An instruction to the jury on a lesser included offense is required where the evidence presented at trial would reasonably support both an acquittal on the crime charged, and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St.3d 213; State v. Collins (1994), 97 Ohio App.3d 438, 444. In the case at bar, the jury could, and did, in fact, find that defendant did not plan to kill Hill in conducting the robbery. The jury found that he purposely caused the death of Hill. As the trial court succinctly observed when ruling on the issue: - 13 - COURT: Okay. I'm going to charge on the lesser offense, because they may consider prior calculation and design are not there, but they might well find purpose. All right. For that reason, the charge on the lesser offense ***. (Tr. 713). We find no error in the court's submission of the lesser included charge on murder. Assignment of Error IV is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., and PATTON, J., CONCUR. JAMES M. PORTER 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 .