COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69799, 70451, 71643 : STATE OF OHIO : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION : WILLIE S. SMITH : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 6, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE NOS. CR-325283, CR-323987 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ----------------- APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR JOHN R. KOSKO (#0021192) ASSISTANT PROSECUTING ATTORNEY The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN P. PARKER (#0041243) 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant Willie Smith ( appellant ) appeals from his convictions for one count of kidnapping in violation of R.C. -2- 2905.01 and one count of aggravated murder in violation of R.C. 2903.01. Appellant assigns the following errors for our review: I. THE APPELLANT WAS DENIED DUE PROCESS UNDER THE FOURTEENTH AMENDMENT AND THE FOURTH WAS VIOLATED WHEN ITEMS SEIZED PURSUANT TO THE SEARCH WARRANT WENT BEYOND THE SCOPE AUTHORIZED. II. THE APPELLANT WAS DENIED DUE PROCESS AND HIS RIGHT TO COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE SEARCH WARRANT AND FAILED TO CHALLENGE THE ADMISSION OF THE ITEMS SEIZED AT HIS HOME AND THE TESTIMONY OF THE DETECTIVE CONCERNING THESE ITEMS. III. THE TRIAL COURT IMPROPERLY ALLOWED HEARSAY TESTIMONY TO THE PREJUDICE OF THE APPELLANT IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE OHIO AND U.S. CONSTITUTIONS. IV. THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE ADMISSION OF EVIDENCE IN VIOLATION OF EVID.R. 401, 402, 403, 404 AND THE DUE PROCESS CLAUSES OF THE OHIO AND U.S. CONSTITUTIONS. V. PROSECUTORIAL MISCONDUCT DENIED THE APPELLANT A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS CLAUSES OF THE OHIO AND FEDERAL CONSTITUTIONS. VI. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED A TOTAL OF THIRTY-FIVE THOUSAND DOLLARS IN FINES WHEN THE APPELLANT WAS INDIGENT. VII. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE OHIO AND FEDERAL CONSTITUTIONS WHEN COUNSEL FAILED TO OBJECT TO PREJUDICIAL EVIDENCE, THE STATE'S CLOSING ARGUMENT AND THE IMPOSITION OF EXCESSIVE FINES. VIII. THE TRIAL COURT IMPROPERLY ACCEPTED INCONSISTENT VERDICTS IN VIOLATION OF THE DUE PROCESS CLAUSES OF TH OHIO AND FEDERAL CONSTITUTIONS. IX. THE TRIAL COURT IMPROPERLY FAILED TO GIVE A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF ABDUCTION IN VIOLATION OF DUE -3- PROCESS AS GUARANTEED BY THE U.S. AND OHIO CONSTITUTIONS. X. THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION FOR LEAVE TO FILE A NEW TRIAL MOTION. XI. THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. XII. THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE VERDICTS. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. The present case arises from the issuance of two separate indictments by the trial court. On June 5, 1995, appellant was issued a one count indictment in Case No. CR-323987 for kidnapping in violation of R.C. 2905.01. On June 28, 1995, appellant was issued a separate three count indictment by the Cuyahoga County Court of Common Pleas, Case No. CR-325283. Count I of the indictment charged appellant with aggravated murder in violation of R.C. 2903.01 with a firearm specification and a felony murder specification; Count II of the indictment charged appellant with aggravated murder in violation of R.C. 2903.01 with a firearm specification and a felony murder specification; Count III of the indictment charged appellant with having a weapon while under a disability in violation of R.C. 2923.13 with a firearm specification and a violence specification. On August 21, 1995, the trial court consolidated the two cases for trial. The charges were renumbered as follows: Case CR-323987, kidnaping, Count I; Case CR-325283, aggravated murder with a felony -4- murder specification and a firearm specification, Counts II and III; having a weapon while under disability with a violence specification and a firearm specification, Count IV. On October 24, 1995, the jury returned the following verdict: appellant was found guilty on Count I of kidnaping in violation of R.C. 2905.01; not guilty on Count II, aggravated murder in violation of R.C. 2903.01; guilty of aggravated murder in violation of R.C. 2903.01 as charged in Count III. However, the jury did not find with regard to specification I that appellant had a firearm on or about his person or under his control while committing the offense charged in Count III, or that appellant was committing the offense charged while attempting to commit or fleeing immediately after committing or attempting to commit kidnapping and appellant was the principal offender in the aggravated murder or if not the principal offender, committed the aggravated murder with prior calculation or design. Finally, appellant was found not guilty of having a weapon while under a disability in violation of R.C. 2923.13 as charged in Count IV of the indictment. On October 24, 1995, appellant was sentenced for a term of ten (10) years to twenty-five (25) years under Count I, kidnapping and for a term of life under Count III, aggravated murder. Count I was to run consecutive to Count III. The trial court further ordered appellant to pay a total fine of $35,000.00. On September 20, 1996, appellant filed a new trial motion instanter or in the alternative a petition for post-conviction relief pursuant to R.C. 2953.21. The trial court denied -5- appellant's motion on October 23, 1996. II. On April 8, 1995, the Warrensville Heights police department was informed that a dead body was floating in a creek located behind an apartment complex on Dalebridge Road. Officer Raymond Thomas of the Warrensville Heights Police Department proceeded to the Dalebridge Apartment complex and found a male body located in the creek behind the apartments. No identification was found on the clothing of the deceased. Several hours after the police had located the body, Mary Lewis, after hearing rumors that her son Reginald Gary Lewis ( Lewis ) had died, called the Cuyahoga County Coroner's Office to see if the rumors were true. Reginald Lewis had been missing since March 28, 1995. Subsequently, Mary Lewis went down to the coroner's office and identified the body of her son. Appellant's trial commenced September 29, 1995. The evidence set forth at the trial showed that Lewis died from two bullet wounds to the back of his head. Lewis also had blunt force injuries to his head, trunk and extremities. The evidence further revealed that Lewis had been killed at the home of appellant's cousin William Marshall. Blood of the same type and enzyme pattern as Lewis' was found in the basement of Marshall's home. The Warrensville Heights police in searching Marshall's residence also found a flattened nine-millimeter bullet which had the same characteristics as the rifling in a Norinco automatic. William Marshall testified at trial on behalf of the state. -6- Marshall had been shot by an unknown, masked assailant in February 1995 in an apparent robbery attempt. The rumors in the neighborhood were that an individual named Reggie was responsible for shooting Marshall. Marshall, however, was unsure of who shot him. Marshall testified that on March 28, 1995, he left school early after being involved in a fight. Marshall stated that he arrived at his home located at 3267 East 130th Street, Cleveland, Ohio at approximately 1:30 p.m. Marshall lived at the house with his grandmother who was not home when he arrived from school. After arriving at his home, Marshall stated that his two cousins, appellant and appellant's brother Ashunte Smith, who were driving a small white car, came to the door with Lewis and stated that Lewis was the individual who had shot him. Ashunte and appellant entered the house, asked Marshall if their grandmother was home, and then told Marshall to get something to tie Lewis up. Marshall got an extension cord and brought it to the basement. Appellant and Ashunte tied Lewis to a pole in the basement. Marshall went upstairs to answer the telephone. After speaking to his grandmother, Marshall went back down stairs and told appellant and Ashunte that his grandmother was on her way home and whatever they are going to do they better do it. Appellant pulled a gun from his pants and said we are going to do him then. Appellant cocked the gun and told Marshall to go upstairs. Marshall heard two shots and when he looked back downstairs Ashunte Smith had the gun. Lewis lay on the ground, dead. -7- Marshall went upstairs and got some sheets from his bedroom. Marshall went back downstairs to the basement, untied Lewis, wrapped him up in the sheets and dragged him upstairs. Appellant and Ashunte opened the trunk of the car and put Lewis in the trunk. Appellant and Ashunte drove away and Marshall attempted to clean up the basement. Shenell Owens also testified at trial. Owens stated that at approximately1:00 p.m. on March 28, 1995, she was in front of her house located at 12013 Lenacrave Avenue when she joined several individuals to smoke some marijuana. At this time, Lewis was on Owens' front porch with her uncle, Darryl Owens. While Shenell Owens was in a vehicle smoking marijuana, she observed another individual, Scott LaRoc, approach Lewis on the front porch and begin beating him up. The altercation ended and LaRoc left. Approximately twenty minutes later, appellant and Ashunte came by in a white car. Owens testified that everybody got into her car and started smoking marijuana. Appellant asked Owens if Lewis was the person who had shot his cousin William Marshall in February 1995. Appellant and Ashunte got out of the car and approached Lewis on the porch and asked Lewis if he shot their cousin. Lewis stated that he did not shoot William Marshall and appellant and Ashunte started beating him up. Lewis ran and both appellant and his brother began chasing Lewis. As appellant and Ashunte caught up with Lewis, they forced Lewis into a small white car. Lewis clearly did not want to go with appellant and Ashunte. Later that day, Shenell Owens testified that she saw Ashunte -8- Smith at the store and asked him what happened to Lewis. Ashunte replied that they dropped him off far, far away. Due to all of the noise and commotion at Shenell Owens' house, her neighbor, Tracy Watson, called the police. By the end of the phone call, the commotion ceased and Watson told the dispatcher the people were gone. Watson looked out the window and observed a male being shoved into a white car. Watson stated she knew the call was made on March 28, 1995, and a Cleveland Police Dispatcher confirmed that a 911 call was received from Watson's residence at 1:11 p.m. on March 28, 1995. Sarah Marshall, the grandmother of appellant, Ashunte Smith and William Marshall, also testified at trial. Sarah Marshall stated that she had not been at home during the day on March 28, 1995, but that she had called home and talked to William Marshall. Sarah Marshall told her grandson that she would be home soon, but did not, in fact, return home until after 6:00 p.m. that evening. Before returning home, Sarah Marshall stated that she had stopped at the store and on her way out she ran into appellant and Ashunte who were driving a white car. There were two other individuals in the car as well. Sarah Marshall returned home. Sarah Marshall stated that she went into her basement the next day, but did not notice anything which would alert her that someone had been shot in her basement. Detective Donald Spera, a criminal investigator for the City of Warrensville Heights, stated that he executed a search warrant at appellant's home located at 13404 Southview, Cleveland, Ohio. -9- As a result of the search, Det. Spera stated that, among other things, he seized the following property: a nine millimeter automatic gun, ammunition, shot gun shells, photographs, a gas mask, a bullet proof vest, letters, and marijuana. The nine millimeter automatic gun and the ammunition, however, were the only items seized that were offered and accepted into evidence by the trial court. III. For purposes of this appeal, appellant's first and fourth assignments of error will be addressed together in that both assert that the items taken during the search of appellant's home exceeded the scope of the search warrant. Appellant further contends that the items seized and testified to by Det. Spera, were prejudicial and not relevant to the indictment. In the present case, appellant now claims evidence gained from the search of his home should have been suppressed. Appellant, however, did not, at any time before appeal, seek to have such evidence excluded. In particular, appellant did not file a motion to suppress as required by the mandatory language in Crim.R. 12(B)(3). Crim.R. 12(B)(3) states: (B) Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determinationwithout the trial of the general issue. The following must be raised before trial: (3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. Such motions shall be filed in the trial court only. -10- Appellant has failed to include the search warrant in this record. This court cannot review a matter not in the record and we cannot determine whether appellant's allegation that the items seized from within his home exceeded the scope of the search warrant. State v. Saunders (December 30, 1996), Lucas App. No. L- 95-256, unreported, citing State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus. However, we note that the validity of the search warrant was raised as an issue before this court on appeal in State v. Smith (June 25, 1997), Cuyahoga App. No. 70855, unreported. In Smith, we held that the search warrant was valid and the items seized did not exceed the scope of the warrant. In the present case, all but two of the items seized were never introduced as evidence at trial and yielded no evidence against appellant. Therefore, appellant was not prejudiced by the seizure of that evidence. Accord State v. Cooey ( 1989), 46 Ohio St.3d 20, 30; See also Smith, supra. Accordingly, appellant's first and fourth assignments of error are overruled. IV. Appellant's second and seventh assignments of error will be addressed together. In both assignments of error, appellant asserts that his trial counsel was ineffective. In particular, appellant contends that he was denied the effective assistance of counsel when his trial counsel failed to challenge the search warrant and failed to challenge the admission of items seized pursuant to the search warrant and the testimony of Det. Spera -11- concerning these items. Appellant further asserts that he was denied the effective assistance of counsel when his trial counsel failed to object to the state's closing argument and the imposition of excessive fines. The standard for determining the appropriate level of skill and performance for a criminal attorney has been defined by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, as follows: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an object ive standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle(1976), 48 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed). 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. In the absence of proof to the contrary, Ohio presumes a licensed attorney is competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. In the present case, it has been determined supra that the issue of whether the search of appellant's house and seizure of various items from appellant's house went beyond the scope of the search warrant cannot be addressed by this court. Therefore, we are also unable to determine whether an attorney was ineffective when the allegation of ineffectiveness is based on the same facts which are outside of the record. Ishmail, supra. We do note, however, that the failure to file a motion to suppress evidence is -12- not in and of itself ineffective assistance of counsel. State v. Flors (1987), 38 Ohio App.3d 133. The second instance of ineffective assistance of counsel cited by appellant involves his trial counsel's failure to object to portions of the prosecutor's closing argument referred to in his fifth assignment of error. Since we have found the actions of the prosecutor were within the latitude permitted, failure to object would not constitute ineffective assistance of counsel. (See Section VI, infra). Further, the failure to object alone is not enough to sustain a claim of ineffective assistance of counsel. Objections tend to disrupt the flow of a trial and can be considered technical and bothersome to a jury. State v. Goodwin (April 17, 1997), Cuyahoga App. No. 68531, unreported, citing State v. Campbell (1994), 69 Ohio St.3d 38. Finally, we will address appellant's contention that his defense counsel was ineffective when he failed to object to the imposition of excessive fines. R.C. 2925.11(E)(5) precludes the imposition of mandatory fines to defendants who (1) file a separate affidavit of indigency prior to sentencing, and (2) are then found by the trial court to be indigent. See State v. Reitz (1991), 74 Ohio App.3d 33. In the present case, appellant was represented at trial by the public defender's office and, at the close of the sentencing hearing, was declared indigent by the trial court for purposes of pursuing his appeal. However, a finding of indigency for purposes of retaining counsel is a separate and distinct process from -13- finding a defendant indigent for purposes of paying an imposed mandatory fine. State v. Stearns (October 9, 1997), Cuyahoga App. No. 71851, unreported. Consequently, the fact that a defendant can or cannot raise sufficient funds to retain private counsel at the initiation of criminal proceedings is not necessarily determinative of whether or not he has the resources to pay a mandatory fine. State v. Powell (1992), 78 Ohio App.3d 784, 789-790. In the case sub judice, defendant did not file a separate affidavit of indigency prior to the time of sentencing. This failure, which alone is sufficient reason to impose a fine, does not rise to the level of ineffective assistance of counsel unless the record shows a reasonable probability that the trial court would have found the defendant indigent and unable to pay the fine had the affidavit been filed. Id. citing State v. Huffman (January 26, 1995), Cuyahoga App. No. 63938, unreported at 11. Appellant has failed to provide this court with sufficient evidence from which to determine whether he was indigent. Accordingly, appellant has not met his burden of showing he was prejudiced by trial counsel's error. See State v. Crawley (May 8, 1997), Cuyahoga App. No. 70687, unreported. Appellant's second and seventh assignments of error are overruled. V. In his third assignment of error, appellant contends that the trial court improperly allowed hearsay testimony which was prejudicial. -14- In the present case, appellant claims that when Shenell Owens testified that appellant's brother, Ashunte Smith, told her that he dropped him [Lewis] off far, far away , that this statement was hearsay and was inadmissible at trial. The state, however, contends that Ashunte Smith's statement falls under the co- conspirator exception to the hearsay rule and was admissible. We initially note that the co-conspirator exception to the hearsay rule has been recognized by the United States Supreme Court in Bourjaily v. United States (1987), 483 U.S. 171, to be a firmly rooted hearsay exception. Evid.R. 801(D)(2)(e) sets out the hearsay exception dealing with statements of a co-conspirator: A statement is not hearsay if: * * * the statement is offered against a party and is * * * a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy upon independent proof of the conspiracy. In order to admit an out of court statement of a co- conspirator against a party as nonhearsay, five elements must be established: (1) the existence of a conspiracy; (2) the defendant's participation in the conspiracy; (3) the declarant's participation in the conspiracy; (4) that the statement was made during the course of the conspiracy; and (5) that the statement was made in furtherance of the conspiracy. State v. Daniels (1993), 92 Ohio App.3d 473, 482. In the present case, the requirement of a prima facie showing of a conspiracy by independent proof was met, establishing elements one, two and three set out in Daniels, supra. At trial, Shenell -15- Owens testified that appellant and his brother Ashunte Smith were together at her house on March 28, 1995. Owens further stated that both appellant and his brother approached Lewis on the porch and began beating him up. Subsequently, Lewis was forced by appellant and his brother into a small white vehicle. Testimony of William Marshall confirmed that appellant and his brother were together on March 28, 1995, and that at approximately 1:30 p.m. on that day, appellant and Ashunte brought Lewis to Marshall's home. Appellant and Ashunte entered Marshall's home with Lewis and took Lewis into the basement where they tied him up to a pole. Appellant pulled out a gun and stated we are going to do him then. Marshall went upstairs, heard two shots, and when he returned to the basement Ashunte was holding the gun. All three individuals wrapped Lewis up in some sheets and placed him in the trunk of the white car. Later that evening, Owens saw Ashunte Smith at the store at which time Ashunte told Owens he dropped him off far, far away . Clearly, the foregoing evidence, testified to by witnesses at trial was sufficient to establish a prima facie showing of conspiracy between appellant and his brother to kidnap and kill Lewis. A conspiracy to commit a crime does not necessarily end with the actual commission of the crime but can extend to include statements made while co-conspirators are still concerned with the concealment of their criminal conduct or identity. Daniels, supra at 483, citing State v. Shelton (1977), 51 Ohio St.2d 68, paragraph two of the syllabus, vacated in part (1978), 438 U.S. 909. In the -16- present case, the statement made by Ashunte Smith only hours after the actual commission of the crime was a statement made by a co- conspirator in furtherance of the conspiracy. Furthermore, Ashunte Smith's refusal to tell Owens what far, far away meant was a concealment of where the crime took place and thereby furthers the conspiracy. Accordingly, elements four and five of Daniels, supra were satisfied. With all elements of Evid.R. 801(D)(2)(e) satisfied, we cannot conclude that the trial court abused its discretion in admitting the controversial portions of Shenell Owens' testimony at trial. Having found no error prejudicial to the appellant herein, appellant's third assignment of error is overruled. VI. Appellant's fifth assignment of error alleges that appellant was denied a fair trial due to prosecutorial misconduct during closing arguments. In general terms, the conduct of a prosecuting attorney during trial is not a ground for error unless that conduct deprives the defendant of a fair trial. State v. Bishop (March 20, 1997), Cuyahoga App. No. 70177, unreported. Prosecutors must avoid insinuations and assertions calculated to mislead. They may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence. Id., citing State v. Lott (1990), 51 Ohio St.3d 160, 166. More specifically, the test regarding prosecutorial misconduct -17- in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. Bishop, supra citing State v. Smith (1994), 14 Ohio St.3d 13, 14. However, the closing argument must be reviewed in its entirety to determine if the prosecutor's remarks were prejudicial. State v. Loza (1994), 71 Ohio St.3d 61, 78. Initially, we note that appellant did not object to the state's closing argument. Therefore, we will review appellant's fourth assignment of error for plain error. Appellant contends that the state argued to the jury that Lewis was killed by a nine millimeter handgun. However, appellant contends that testimony at trial revealed that Lewis could have been shot by either a nine millimeter handgun or a .38. In fact, testimony was offered at trial that a nine millimeter handgun was used to kill Lewis. In support of that testimony, there was additional testimony that a nine millimeter casing was found in the basement of Marshall's home. Evidence was also presented that a nine millimeter handgun was found in appellant's home and later admitted into evidence. The prosecutor's remarks during final argument were proper comments on evidence presented during the trial. Richard Turbok, a firearms examiner, testified at trial that a nine millimeter handgun, when fired, ejects a casing, and that a casing was found in the basement of Marshall's home. The prosecutor properly commented on this testimony. Therefore, we find appellant's assertion that prosecutorial misconduct deprived him of a fair trial to be without merit. Accordingly, appellant's fifth -18- assignment of error is overruled. VII. In his sixth assignment of error, appellant contends that the trial court committed plain error when it fined appellant $35,000.00 when appellant was indigent. R.C. 2929.02 governs the imposition of fines for the crime of aggravated murder and states as follows: (A) Whoever is convicted of, pleads guilty to, or pleads no contest and is found guilty of, aggravated murder in violation of R.C. 2903.01 of the Revised Code shall suffer death or be imprisoned for life * * *. In addition, the offender may be fined an amount fixed by the court, but not more than twenty-five thousand dollars. * * * (C) The court shall not impose a fine or fines for aggravated murder or murder which, in the aggregate and to the extent not suspended by the court, exceeds the amount which the offender is or will be able to pay by the method and within the time allowed without undue hardship to himself or his dependents, or will prevent him from making reparation for the victim's wrongful death. As stated supra, it is appellant's burden to prove that he was prejudiced by the trial court's failure to find him indigent for purposes of imposing a fine. Appellant's claim that he was indigent must be supported by sufficient evidence in the record. In the instant case, appellant claims that he is indigent and that the trial court erred in imposing a $25,000.00 fine for the crime of aggravated murder. The record presented before this court does not reveal that appellant filed an affidavit of indigency, nor was sufficient evidence set forth in the record that appellant was, -19- in fact, indigent. Although appellant was declared indigent by the trial court for purposes of assigned counsel, as stated supra, being declared indigent for purposes of assigned counsel, and being declared indigent for the purpose of avoiding the imposition of mandatory fines are not the same. See Stearns, supra. Because appellant has not provided this court or the trial court with evidence that he is indigent, we cannot say that the trial court abused its discretion in assessing appellant an aggregate fine of $35,000.00. Accordingly, appellant's sixth assignment of error is overruled. VIII. In his eighth assignment of error, appellant asserts that the trial court erred in accepting inconsistent verdicts. In particular, appellant contends that it was inconsistent for the jury to find him guilty of aggravated murder, but not to find him guilty of the firearm specification set forth in the indictment or guilty of the charge of having a weapon while under a disability. Inconsistent verdicts do not provide a basis for new trial. In fact, the Ohio Supreme Court has long held that inconsistent verdicts on different counts in a multi-count indictment provide no basis for retrial. State v. Adams (1978), 53 Ohio St.2d 223, 228, vacated in part (1978), 439 U.S. 811; State v. Hicks (1989), 43 Ohio St.3d 72, 78. The rationale behind upholding inconsistent verdicts among multiple counts was addressed in United States v. Powell (1984), 469 U.S. 57, where the United States Supreme Court noted that juries can reach inconsistent verdicts for any number of -20- reasons, including mistake, compromise and leniency. The court further held that it would be incongruous for a defendant to accept the benefits of an inconsistent verdict without also being required to accept the burden of such verdicts. Id. In the present case, appellant was convicted of kidnapping and aggravated murder. The jury, however, did not find appellant guilty of the firearm specification as set forth in the indictment for aggravated murder, nor did the jury find appellant guilty on the charge of having a weapon while under a disability. Appellant contends these verdicts are patently inconsistent. We believe the lower court committed no error in allowing the verdicts to stand. In State v. Perryman (1976), 49 Ohio St.2d 14, vacated in part (1978), 438 U.S. 911, the Ohio Supreme Court found that a finding on a specification cannot change the finding of guilt upon the principal charge. Also, the court stressed that one may be convicted of aggravated murder without a specification. Id. Thus, the conviction of aggravated murder is not dependent upon findings for the specifications thereto. Specifications are considered after, and in addition to, the finding of guilt on the principal charge. Id. at 26. As in Perryman, a finding upon a specification cannot change the finding of guilt as to the principal charge since specifications are considered only after, and in addition to, the finding of guilt upon the principal charge. Appellant's conviction of aggravated murder may stand because it was not dependent upon the firearm specification. Furthermore, the jury's finding that -21- appellant was not guilty of having a weapon while under a disability does not provide a sufficient basis for a new trial. See Adams, supra. Accordingly, appellant's eighth assignment of error is overruled. IX. Appellant, in his ninth assignment of error, asserts that the trial court erred when it failed to instruct the jury on abduction, a lesser included offense of kidnapping. A trial court must present a lesser included offense charge if the trial court determines that (1) the offense is indeed a lesser included offense of the crime charged and (2) the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater. State v. Kidder (1987), 32 Ohio St.3d 279, 280. In addressing appellant's ninth assignment of error, we must first determine whether the abduction charge requested by appellant is a lesser included offense of the kidnapping charge that the jury received. The test for whether one offense is a lesser-included offense of another is set forth in State v. Deem (1988), 40 Ohio St.3d 205, paragraph three of the syllabus: An offense may be a lesser-included offense of another if, (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. In the case sub judice, the trial court stated that it would not instruct the jury on the lesser included offense of abduction. -22- The jury was charged on the following parts of kidnapping, R.C. 2905.01(A): Now, before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 28th day of March, 1995, and in Cuyahoga County, Ohio, the defendant, by force, threat or deception removed Reginald Lewis from the place where he was found or restrained him of his liberty for the purpose of facilitating the commission of a felony or the flight thereafter and/or terrorizing or inflicting serious physical harm on Reginald Lewis. Kidnapping encompasses the offense of abduction because both require that the defendant be proven to have (1) by force or threat (2) removed another from the place where he was found. Abduction has no further elements, while kidnapping has an additional required purpose element: either R.C. 2905.01(A)(1), (2), (3), (4), or (5). One could not be found guilty of kidnapping without also satisfying the elements of abduction. See State v. Simmons (December 20, 1995), Scioto County App. No. 94CA2281, unreported. Kidnapping, a first or second degree felony, has a more severe penalty than abduction, a third degree felony. We therefore agree with appellant that the requested abduction charge is a lesser included offense of the kidnapping charge that the jury received. See Deem, supra. We next must consider whether the abduction charge should have been given to the jury. An instruction on a lesser included offense is required when the court determines that sufficient evidence has been presented that would reasonably allow a jury to reject the greater offense and find the defendant guilty on a -23- lesser included offense. State v. Shane (1992), 63 Ohio St.3d 630, 632-633. Appellant asserts that no evidence was presented at trial that Lewis was removed with the intent to commit a felony or to terrorize or to inflict serious physical harm to Lewis which is not an element of abduction. We disagree. Evidence presented at trial was plentiful to prove kidnapping's additional intent requirement. We agree with the trial court's assessment that a reasonable jury could have inferred that the purpose was to terrorize or to inflict serious physical harm on Lewis as was evidenced by the testimony that appellant and his brother were already beating Lewis as they put him in the vehicle. It was reasonable for the trial court to conclude that no reasonable trier of fact would have found appellant guilty of abduction and not guilty of kidnapping. Accordingly, no instruction on the lesser included offense of abduction was required. See Shane, supra. Appellant's ninth assignment of error is overruled. X. Appellant's tenth assignment of error asserts that the trial court improperly denied appellant's motion for leave to file a new trial motion. Appellant contends that affidavits of witnesses who claim that William Marshall lied about appellant's involvement in the kidnapping and murder were presented to the trial court. In the present case, appellant was sentenced by the trial court on October 24, 1995. Appellant filed his notice of appeal on November 6, 1995. On September 20, 1996, appellant filed a motion -24- for leave to file new trial motion instanter. The trial court denied appellant's motion for leave to file new trial motion October 23, 1996. A motion for a new trial is inconsistent with a notice of appeal of the judgment sought to be retried. Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, paragraph one of syllabus. Therefore, when an appeal is pending, the trial court is divested of jurisdiction except to take action in aid of the appeal. Powell v. Turner (1984), 16 Ohio App.3d 404, 405, citing Majnaric, supra. Despite the filing of a notice of appeal, a trial court does have jurisdiction to rule on a motion for a stay of execution since it is an action in aid of the appeal. * * * Also, it should be noted appellant could seek a stay in the court of appeals pursuant to App.R. 7. Turner, supra. Based on the foregoing, appellant's tenth assignment of error is overruled. XI. In his eleventh assignment of error, appellant contends that his convictions for kidnapping and aggravated murder were against the manifest weight of the evidence. When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscarriage of justice such that the conviction must be reversed -25- and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. Applying this law to the facts as contained in the record before this court, we have concluded that appellant and his brother Ashunte did, in fact, kidnap Lewis. The evidence further supports the conclusions that appellant and Ashunte took Lewis to the Marshall's home and tied Lewis to a pole in the basement. Appellant pulled a gun out of his pocket, stated that we are going to do him then . Marshall heard two shots and when he returned to the basement Ashunte was holding the gun. This evidence does not support a finding by this court that the jury clearly lost its way and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. Rather, the evidence suggests that appellant and Ashunte removed Lewis from Shenell Owens' home by force, placed Lewis in a car with the intent to later cause serious physical harm to Lewis. The evidence further reveals that appellant and Ashunte purposely tied Lewis to a pole, placed a gun to the back of Lewis' head, and shot and killed Lewis. Thus, a review of the evidence on the record reflects that appellant's conviction was not against the weight of the evidence. -26- Appellant's eleventh assignment of error is overruled. XII. Appellant's twelfth assignment of error asserts that there was insufficient evidence to support appellant's convictions for kidnapping and aggravated murder. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, syllabus at two. 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. Id. Appellant was convicted of kidnapping. R.C. 2905.01 governs that offense. It states in part: (A) No person, by force, threat, or deception, * * * by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: * * * (3) To terrorize, or to inflict serious physical harm on the victim or another; * * *. There was evidence appellant and his brother Ashunte Smith forced Lewis into a small white car. Further evidence revealed that Lewis was taken to the Marshall residence where he was killed. Evidence sufficient to support each element of the kidnapping offense was admitted at trial. -27- Appellant was also convicted of one count of aggravated murder in violation of R.C. 2903.01 which provides in pertinent part: (A) No person shall purposely, and with prior calculation and design, cause the death of another. (B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping * * *. Evidence was presented at trial that appellant purposely caused the death of Lewis by shooting Lewis in the back of the head. Evidence was also presented at trial that appellant and his brother Ashunte committed the act with prior calculation and design as they had a weapon, took Lewis to another location, restrained Lewis in the basement of Marshall's home when they tied him to a pole, and then placed the gun to Lewis' head and fired, killing Lewis. There was evidence appellant and Ashunte killed Lewis after they kidnapped him from the front yard of Shenell Owens' residence. Based on the foregoing, sufficient evidence supporting both appellant's conviction for kidnapping and aggravated murder was admitted at trial. Accordingly, appellant's twelfth assignment of error lacks merit. Judgment affirmed. -28- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court 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. DAVID T. MATIA, P.J. and TERRENCE O'DONNELL, J. CONCUR. __________________________ LEO M. SPELLACY Judge N.B. This 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 -29- pursuant to App.R. 22(B) 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 .