COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69511 IN THE MATTER OF: : RICHARD KOBALLA : : : JOURNAL ENTRY : : AND : : OPINION : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Appeal from Juvenile Court Division Case No. 9504581 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellee State of Ohio: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK R. MAJER Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Cleveland, Ohio 44113 For Appellant Richard Koballa: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 - 3 - O'DONNELL, J.: Richard Koballa, age 14, separately appeals from a judgment of the Juvenile Court entered pursuant to a joint adjudicatory hearing of both Rachel Rivera and himself, wherein the trial court found him delinquent in connection with aiding or abetting the strangulation gang-murder of Francine Ann Lance, a twelve- year-old student at Thomas Jefferson Middle School. The sordid facts in this senseless murder reveal that solely because Francine Ann Lance and thirteen-year-old Rachel Rivera did not like each other, Rivera and her friends plotted to kill Lance on September 23, 1994. The record contains the testimony of Diane Chada, Rachel's mother, who testified that at 1:00 or 2:00 a.m. on September 23, 1994, she heard Rachel making telephone arrangements to cut out of school after first period and meet Lance and some other friends. The following morning, Rivera met Francesca Flores in the school bathroom and the two left the school and met Steven Kidwell, Richard Koballa, Nicole Hine and Christine and Jessica Keating. As the group walked toward the Convenient Store where Rachel was to meet Francine, they saw Francine approaching and called for her to join them. Rachel led the group down Bragdon Avenue, an alley between West 46th and West 48th streets where Francine was mortally attacked in the rear yard of 3217 West 48th Street, a field hidden from view by overgrown bushes. - 4 - The accounts of the killing are incomplete as to which person did which part. It is generally agreed however, that Kidwell grabbed Francine's blue and white cloth hair bandanna, drew it taut in his hands and wrapped it securely around her neck and choked her for almost four minutes until she stopped moving. At one point, Nicole testified that she attempted unsuccessfully to pull Kidwell's arms away, but abandoned that effort and left the scene. During this time, Koballa is reported to have been cheering and said, "get her, get her, she fucking deserves it," and witnesses testified he joined others who kicked and punched and hit Francine which prevented her from getting up off the ground while she was being strangled. When police located Francine's body hours later, rigor mortis had set in, her right hand had been tied behind her back with a brown 36" bootlace- type-cord, her left shoe had been removed, and her blue jeans pulled completely off her left leg and partially down her right leg exposing her underpants and her naked right thigh. She was lying face down with multiple contusions about her face, head, neck, trunk, and extremities, extending from her left temple, down the left side of her body. She had been punched or kicked in the left eye and the mouth, and also sustained internal mouth contusions. When her lifeless body was delivered to the morgue it still had the bandanna wrapped tightly around her neck and knotted in the back at the base of her skull. The deputy coroner, Dr. Heather Raaf, testified the cause of death to be - 5 - cervical compression with blunt impacts to the head, neck, truck and extremities caused by either the bandanna used as a ligature and/or firm pressure applied to the neck as evidenced by a series of bruises in the soft tissue and a surface abrasion lower down on the neck which could have resulted if she had been pressed firmly down against the ground. Police also recovered a pellet gun from the murder scene located near the body. At the adjudication hearing, Joseph Gray testified that he denied Koballa the opportunity to enter his 2:00 p.m. class without a late permission slip; a check of the school records reveals that Koballa did not attend any classes on September 23, 1994, but had advised Detective Richard Martin of the Cleveland Police Department Homicide Unit he had been in school the entire day. The state also presented Barbara Rufty, Rachel Rivera's cousin, who testified that Rachel told her the day before the murder that, "they" were going to kill Francine. Finally, the state called twelve-year-old Charlene Burkey who lived across the street from Koballa and who testified he put a bandanna around her neck threatening her and repeatedly called her on the telephone telling her that "he'd kill her and rape her like he did Francine." The defense presented Diane Kafel, Richard Koballa's aunt, who testified that Helen Gribble, his grandmother, is his legal guardian, that he has serious hearing and speech problems, and - 6 - that he has been taking Ritalin since the age of six for hyperactivity and learning disorders. She testified that he always tried to act tough, but that he is all talk and no action. The court adjudicated Koballa delinquent by finding that he had committed an act which, if committed by an adult, would constitute murder. Koballa has separately filed this notice of appeal from that determination and has assigned four errors for our review. The first assignment of error states: I. THE MISCONDUCT OF THE PROSECUTOR IN SUPPRESSING EVIDENCE FAVORABLE TO THE APPELLANT VIOLATED HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Appellant alleges that the prosecutor is guilty of misconduct for failing to disclose to defense counsel that prior to testifying at trial, Christine and Jessica Keating approached the prosecutor with their aunt and recanted their written police statements that they were present at the time the crime was committed and admitted they lied when they provided this information because police officers threatened to have them committed to the detention home. - 7 - The state urges that it "cannot recall" if it advised defense counsel of the recantation, and further urges that the Keatings did not testify for the state during the Juvenile Court proceeding. Appellant knew of prior oral statements of the Keatings that they were not present at the scene of the murder, and had the opportunity to subpoena the Keatings for testimony at trial but chose not to do so. We observe that Rachel Rivera raised this precise assignment of error during her appeal. Having considered the evidence and its implications and the applicable law as it relates to this case, we adhere to the earlier treatment of this assignment of error by our court in State v. Rivera (August 22, 1996), Cuyahoga App. No. 69320, unreported. We conclude no violations of Brody v. Maryland (1963), 373 U.S. 83 or United States v. Bagley (1985), 473 U.S. 667, occurred in this case. The second assignment of error states: II. THE DENIAL OF APPELLANT'S MOTION FOR A NEW TRIAL VIOLATED HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS PROVISION OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Appellant simply incorporates the arguments contained in his first assignment of error. The state urges that since the appellant has not demonstrated an abuse of discretion, this court should not - 8 - reverse the decision of the trial court regarding the motion for a new trial. Since the identical assignment of error was also raised by Rachel Rivera in her appeal, Id., we have considered the evidence and the law as it relates to this case, and we incorporate by reference the earlier decision of our court and conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial. The third assignment of error states: III. THE TRIAL COURT ERRED IN ALLOWING A WITNESS TO READ A PRIOR SIGNED STATEMENT SHE HAD GIVEN POLICE WHEN THAT WITNESS DID NOT STATE THAT SHE DID NOT RECALL THAT MATTER UNTIL PROMPTED BY THE PROSECUTOR TO DO SO. Appellant complains of trial court error in permitting Nicole Hine, age twelve, to read from her statement after she had given definitive answers to the state's questions on direct examination. Specifically, during her direct examination, Nicole had testified that while Kidwell was strangling Francine, Koballa had said, "The bitch deserves it." The court then afforded the prosecutor the opportunity to refresh her recollection by having her review her written statement, and when asked if Koballa was doing anything, replied in the negative, but later re-read her statement and then testified that Richard said, "Get her, get her, she fucking deserves it" and stated that he was cheering. - 9 - The state urges that the court did not abuse its discretion in allowing the witness to refresh her recollection. This assignment of error squarely raises the issue of a timid, youthful witness who has testified under oath in a serious case but has omitted significant parts of expected testimony as contained in her prior recorded statement. This situation is contemplated by Evid.R. 612 which vests discretion in the trial court to make such order as justice requires when a witness uses such a statement while testifying. No issue is presented as to a failure to disclose the statement, but only whether the trial court abused its discretion in permitting this witness to refresh her recollection as to what Koballa was doing or had said while Kidwell squeezed the bandanna around Francine's neck. In this case, the record reflects the witness at one point stated that she really didn't remember, which justified the trial court authorizing the prosecutor to use her statement to refresh her recollection. The record here does not demonstrate that the trial court abused its discretion in permitting the witness to refresh her recollection in accordance with Evid. R.612. Accordingly, we find no merit to this assignment of error and it is overruled. The fourth assignment of error states: IV. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS, HE WAS - 10 - DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO. Here, appellant urges that inconsistencies between the testimony of Nicole Hine, Francesca Flores, and Charlene Burkey provide a basis for our court to conclude that the evidence presented against Richard Koballa does not prove that he actively participated in the murder of Francine Ann Lance. The inconsistencies referenced by appellant include the fact that Koballa threatened to rape and kill Burkey, "just like I did Francine", but no evidence exists that Francine had been raped; that when Francesca gave her statement to police, after viewing a photo of Koballa only stated it "looked something like" the boy who was present at the scene with a bandanna covering his mouth cowboy style; that Nicole claimed to have tried to pull Kidwell off Francine, but Francesca denied anyone ever tried; and that Nicole had denied discussing murder with Christine, who claimed she had two conversation about it; and other matters generally related to Nicole's credibility. The state urges the court's verdict is not against the manifest weight because the evidence demonstrates appellant's complicity in the murder of Francine. The issue then for resolution is whether or not the adjudication of Richard Koballa as delinquent is against the manifest weight of the evidence in this case. While not all of the testimony of all of these teenage witnesses is consistent, the record before our court is replete - 11 - with threats having been made against these witnesses and others who did not testify. Substantively, however, the state's burden is to prove beyond a reasonable doubt in conformity with the complaint filed in the Juvenile Court that Koballa did aid or abet another in committing the offense of murder in violation of R.C. 2903.02(A), (Murder), and R.C. 2923.03(A)(2), which states: No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: *** (2) Aid or abet another in committing the offense. In State v. Starr (1970), 24 Ohio App.2d 56, the court stated in its headnote: Conviction as an aider or abettor in the commission of a crime requires proof beyond a reasonable doubt that the accused advised, hired, incited, commanded, counseled, or otherwise participated as a co-conspirator, or had some connection with the transaction preceding its occurrence other than merely seeing the crime being committed. And, by way of contrast, in Smith v. State (1931), 41 Ohio App. 64, at 67-68: "In the absence of a conspiracy or some preceding connection with the transaction, one does not aid and abet if he merely sees a crime being committed. Goins v. State, 46 Ohio St. 457, 21 N.E., 476. "Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding or abetting of the act. State v. Peasley, 79 Wash., 99, 141 P., 316." - 12 - Finally, we note in State v. Sims (1983), 10 Ohio App.3d 56, this court stated in paragraph two of its headnote: The definition of an "aider and abettor," with the meaning of R.C. 2923.03(A)(2), is one who assists or encourages another to commit a crime, and participates in the commission thereof by some act, deed, word, or gesture. ***. Applying this law to the facts as contained in this record, we have concluded that Richard Koballa did not merely approve of or acquiesce in the strangulation death of Francine Ann Lance. The evidence supports the conclusions that he cheered placing the ligature around her neck, stated that, "the bitch deserves it," participated in hitting, punching, and kicking her which kept her on the ground while she was incapacitated with her right arm tied behind her back as Kidwell squeezed a knotted bandanna around her neck. Further, at least an inference exists of his participation in the plot to murder Francine since Barbara Rufty testified that Rachel vocalized her intent to participate in a scheme whereby "they" were planning to kill Francine, and Koballa was part of the group who met Rachel when she and Francesca ripped school on the morning of September 23, 1994. This evidence does not support a finding by this court that the Juvenile Court clearly lost its way and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. Rather, it suggests that Richard Koballa knew about and participated in the strangulation gang - 13 - murder of Francine Ann Lance and has been adjudicated delinquent for his behavior. For these reasons, this assignment of error is overruled and the judgment of the Juvenile Court is affirmed. 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 Juvenile Court Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, C.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .