COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69954 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION CARL DAVIS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-324307. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Timothy G. Dobeck Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Scott Roger Hurley Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 JAMES D. SWEENEY, P.J.: Defendant-appellant Carl Davis (d.o.b. July 28, 1970), appeals from his jury trial conviction for the offenses of (1) Murder (R.C. 2903.02) with a firearm specification and (2) Having a Weapon While Under a Disability (R.C. 2923.13). For the reasons adduced below, we affirm. A review of the voluminous record indicates that the prosecution evidence demonstrated that the date and time of the offense was approximately 8:00 p.m. on May 25, 1995, and the victim was Ernest Swift, Jr. The prosecution's case consisted of the facts that follow. The event leading up to the offenses herein was a fight between two 1 persons , not the offender or the victim, which took place in the middle of a public street and was seen by a crowd of people. The defendant was seen at the scene, near the combatants, saying that the combatants did not have to fight. The fight ensued. The victim attempted to break up the altercation, dislodging one of the combatants (his cousin) from a headlock, at which time the defendant was observed displaying a handgun. The victim, who was unarmed, asked the defendant why the defendant pulled out a "pipe," which in street parlance means a gun. Eyewitnesses described the handgun displayed by the defendant as a black and silver semi- automatic 9mm. The defendant, who was identified by first name by 1 One of the combatants was the victim's cousin. - 3 - members of the crowd, pointed the gun generally at the crowd which had gathered, then turned the weapon on the victim who was an arm's length from the defendant, firing a round into the victim's chest. A second shot came from the offender's firearm, striking the victim's chin. The victim then turned and began to run, collapsing on a nearby street corner. The defendant ran from the scene, shoving the handgun back into his pocket, before getting into a car and speeding away. The victim was pronounced dead at the hospital. The next day, the defendant was identified from a live lineup at the police station by an eyewitness to the shooting. It was testified to by the coroner that the shot to the chest, which bullet path through the body was slightly angled (indicating that the victim was bent slightly at the time of impact), perforating two chambers of the heart and one lung before exiting through the back of the victim, was the wound which caused the death of the victim. Scientific evidence indicated that the muzzle of the handgun was approximately 12 to 18 inches from the victim at the time of the shot to the chest, and that the victim had his hands raised in a vain attempt to protect his body from the gunshot at the time of the gunshot. Two 9mm shell casings, manufactured by Remington-Peters, were recovered at the scene by the police. During the investigation of the offense, it was learned from the defendant's brother that the defendant normally operated a Cadillac automobile. At the time of defendant's arrest at his mother's home, the defendant gave the police permission to search - 4 - the Cadillac which was parked in the driveway. A black nylon holster, which would fit a 9mm semi-automatic pistol, was found in the Cadillac's glovebox. The defendant admitted to the police in his statement to having found the holster at a shooting range, which he could not name, in Medina, Ohio. Also in his statement to the police, the defendant denied being armed on the date of the offense and denied shooting anyone, instead implicating the victim's cousin (who was the combatant in a headlock) and another unnamed person as the shooter. The defense case sought to impugn the integrity of the victim, identifying him as an alleged drug trafficker in the neighborhood who had many enemies. Defense witnesses also testified that the victim came to the scene of the fight and stated that he (the victim) would fight, too, and that the defendant tried to talk the combatants out of their desire to fight. Once the fight started, it turned into a general melee. The fight was attempted to be stopped by the defendant before someone said run, causing the crowd and combatants to flee, and shots were heard about ten seconds later. None of the defense witness could say who fired the shots. The defendant did not have a gun at the scene of the offense, but the defendant did drive the getaway car, peeling rubber as he accelerated as a gang of four people chased them. Three defense witnesses also stated that while they were at a nearby store, they each observed a man run by carrying a gun, and this unknown man was not the defendant. Two of these witnesses knew the defendant - 5 - before the shooting, and the third witness worked with one of the other defense witnesses. None of these three witnesses spoke with the police. The defendant also testified on his own behalf. The defendant testified that during the fight, someone struck him from behind, at which time he yelled out to the crowd to run. Defendant and the crowd then ran. Then someone fired some shots. The defendant admitted to purchasing a .380 caliber semi-automatic pistol, which is approximately the same size as a 9mm handgun, a year and a half prior to the offense, but it was stolen a year before the offense; he denied ever owning a 9mm pistol. He purchased that weapon despite being precluded from doing so as a result of a drug abuse conviction. He does not have a receipt to prove the fact of purchasing, nor did he report the gun as stolen to the police. The defendant also testified that he went to the shooting range in Medina, where he found the holster, with a friend named Tony (last name unknown by the defendant), but did not shoot a firearm at the range. The jury returned its verdict and the court sentenced the defendant to terms of imprisonment amounting to 16.5 years of actual incarceration at a minimum, and 25 years maximum. This timely appeal presents two assignments of error. I APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE - 6 - OHIO CONSTITUTION WHEN COUNSEL FAILED TO CHALLENGE THE SUFFICIENCY OF THE STATE'S EVIDENCE AT THE CLOSE OF HIS CASE IN CHIEF. The standard of review for addressing an argument based on ineffective assistance of trial counsel was recently stated in State v. Brooks (1996), 75 Ohio St.3d 148, 157, 661 N.E.2d 1030: Reversal of a conviction on the basis of ineffective assistance of counsel requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense, that is, deprived the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. In reviewing the merits of this assignment in light of the standard of review immediately above, it is incumbent for the appellant to demonstrate that the trial court would have granted the motion for acquittal had it been renewed at the close of the defendant's case-in-chief. The following was recently stated by this court relative to a sufficiency of the evidence argument: The standard of review with regard to the sufficiency of the 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 - 7 - 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 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.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported, 1996 WL 65875, at 3. In the case sub judice, we are confident after having reviewed the record that had the motion for acquittal been renewed at the close of defendant's evidence, any rational trier of fact would have denied the motion since there was ample evidence, when viewed in a light most favorable to the prosecution, to have found the elements of the crimes proven beyond a reasonable doubt. Thus, the failure of defendant's trial counsel to renew the motion for acquittal did not prejudice the defendant nor deprive him of a fair trial. Accordingly, defendant's trial counsel's assistance was not ineffective. The first assignment of error is overruled. - 8 - II THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment is without merit. 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 the 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. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. This court also notes that the credibility of the witnesses is primarily the trier of fact's determination. State v. DeHass (1967), 10 Ohio St.2d 231. The issue of who was the shooter in the present case boils down to which parties' evidence was to be believed. The jury herein determined that appellant was the shooter. Having reviewed the record, we cannot say that the jury lost its way or that a miscarriage of justice would result were we to affirm the jury's determination. - 9 - The second assignment of error is overruled. Judgment affirmed. - 10 - 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. JOSEPH J. NAHRA, J., and DIANE KARPINSKI, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .