COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70551 STATE OF OHIO : : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND ANTHONY WILSON : OPINION Defendant-appellant DATE OF ANNOUNCEMENT OCT. 16, 1997 OF DECISION CHARACTER OF PROCEEDING Criminal Appeal from Court of Common Pleas Case No. 330582 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs Jones, Esq. Edward M. Mullin, Esq. Cuyahoga County Prosecutor 558 Terminal Tower 1200 Ontario Street Cleveland, Ohio 44113-2203 Cleveland, Ohio 44113 2 ROCCO, J.: Defendant-appellant Anthony Wilson appeals from his convictions on two counts of aggravated murder, both with felony murder specifications, and one count of aggravated robbery. Appellant challenges both the sufficiency and the weight of the evidence upon which his convictions were based. This court has reviewed the record, finds appellant's challenge to lack foundation, and thus affirms his convictions. Appellant's convictions stem from an incident which occurred on the night of Sunday, July 9, 1995 in Lakewood, Ohio. Appellant, aged 17 at the time, had spent the evening at his friend Antonio Davis' house located at 1604 Newman Avenue. Davis was 18 years old. Also in the house on that evening were Davis' cousin Lawrence, aged 17, Davis' friend Avery Holland, aged 17, and a friend of Davis's younger sister, Kevin Williams, aged 15. The young people spent most of their time that evening in avis' bedroom, listening to rap music tapes and having onversation. 1One of the tapes featured lyrics which acknowledged practice called creepin' on ah come up. Several of those resent in the room understood the phrase to mean sneaking up on omebody in order to obtain by any means available whatever they ave. At some point during the evening, Holland was playing with 1Quotes indicate testimony given by a witness at appellant's trial. 3 knife he had in his possession, i.e., he was flipping it and tossing it. The knife had a folding blade; when extended, the lade and its handle measured over six inches in length. Holland tated he needed some money. Lawrence Davis heard appellant uggest, Let's go out and creep on a[h] come up. Shortly after 11:00 p.m., the three older young men left the edroom with the two younger ones following. They exited the house nd proceeded to walk south on Newman Avenue toward Madison Avenue. s they approached the intersection, appellant retrieved a tree ranch from the ground. Holland was carrying his knife with the lade open. The group reached Madison Avenue and turned west. At that oint, the young men noticed a lone male, later identified as incent Drost, walking on the sidewalk two blocks away. Drost was roceeding toward them on the opposite side of Madison near Magee venue. The young men separated. Davis, Holland and appellant alked across Madison to the south side where Drost was located hile Lawrence Davis and Kevin Williams remained on the north side. Drost apparently noticed the three young men approaching him n the sidewalk. He attempted to avoid them by walking across adison to the north side. This placed him close to Lawrence Davis nd Kevin Williams. However, Davis, Holland and appellant tracked rost by recrossing Madison. Soon Drost was surrounded by the ouths at the intersection of Hopkins Avenue and Madison. When Holland came near Drost, he asked if he had change for ten. Before Drost could react, however, the youths attacked. 4 avis seized Drost from behind. Holland punched at Drost with the nife he held, striking Drost in the chest. As Drost collapsed, avis released his hold. Holland swung his arm again, grazing Drost n the back with the knife. Then appellant began striking Drost in he head and shoulder area with the tree branch he held. As he truck at Drost, appellant shouted profanities at him. During the attack, motorist Joseph Falat was driving on Magee venue, reached Madison and turned eastbound. He observed on the orner of Hopkins Avenue what appeared to be a fight going on. alat soon noticed the victim was outnumbered by his assailants. alat stopped his vehicle in the street opposite the affray opened he driver's side door and shouted at the youths to let the fella o. When the youths became aware the attack had drawn attention, hey ceased it. Four of them, Kevin Williams leading them, fled orthward on Hopkins Avenue. One, however, either Holland or ppellant, paused to retrieve Drost's wallet from his pant pocket efore following the others. After the youths' departure, Falat quickly went to Drost's id. Falat could see Drost's injuries were severe; Drost was struggling to catch a breath and blood was flowing all over. ithout leaving, Falat used a nearby outdoor telephone to summon mergency assistance. Lakewood police officers therefore arrived ithin moments to begin an investigation. Although Drost was ransported to the hospital immediately, he died at 12:01 a.m. on uly 10, 1995 of the wounds he had suffered in the attack. 5 After the attack, although Lawrence Davis had separated from he others by continuing to flee northward on Hopkins Avenue, ppellant and his companions cut through a yard on Hopkins Avenue n order to return to Newman Avenue. Appellant abandoned the tree ranch he had been carrying during his flight from the scene. nvestigating police officers later retrieved a tree branch along ppellant's route in the rear yard at 1624 Newman Avenue which illiams and Davis identified at trial as the one appellant had used n the attack on Drost. Appellant and his remaining companions paused at an apartment uilding just north of Davis' home long enough to examine the ontents of Drost's wallet. They found only a dollar bill and some us tickets. The wallet was discarded; the youths withdrew to avis' home. Within a short while, however, they returned to adison Avenue. There they were questioned by police officers and uickly became a focus of the investigation. Appellant subsequently ave several contradictory statements to police detectives. nvestigators also seized the clothing appellant was wearing on the ight of the attack. Appellant was arrested on July 14, 1995. Since he was eventeen years old, appellant initially appeared in the juvenile ourt division of the court of common pleas. Thereafter, appellant as transferred to the general division of the court of common leas, where he was charged as an adult in a three count indictment. Count one of appellant's indictment charged him with ggravated murderin violation of R.C 2903.01(A), viz., murder with 6 rior calculation and design, and contained a felony murder pecification. Count two charged appellant with aggravated murder n violation of R.C 2903.01(B), with a felony murder specification. ount three charged appellant with aggravated robbery, in violation f R.C 2911.01. Appellant's jury trial commenced on March 4, 1996. During its ase-in-chief, the state presented the testimony of the coroner, oseph Falat, Kevin Williams, Antonio Davis, investigating police fficers, and forensic scientists who examined appellant's clothing nd shoes for bloodstains. Appellant presented the testimony of awrence Davis, several character witnesses, and also testified in is own behalf. Subsequently, thejury found appellant guilty on all counts of he indictment against him. Appellant was ultimately sentenced to oncurrent terms of twenty years to life imprisonment on counts one nd two and a consecutive term of ten to twenty-five years on count hree. Appellant has filed a timely appeal from his conviction and resents two assignments of error for this court's review.2 Appellant's first assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT APPELLANT OF AGGRAVATED MURDER. Appellant essentially argues his conviction for aggravated urder in violation of R.C 2903.01(A) must be overturned because the 2Appellant's assignments of error are not argued separately as required by App.R. 16(A)(7). 7 vidence adduced at his trial failed to prove his intent to kill rost was formed with the studied analysis required by the statute. his court finds appellant's argument unpersuasive. The test for sufficiency of the evidence has been stated husly: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. tate v. Martin (1983), 20 Ohio App.3d 172 at 175. See, also, State . Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. R.C 2903.01, aggravated murder, states in pertinent part the ollowing: (A) No person shall purposely, and with prior calculation and design, cause the death of another. The Ohio Supreme Court has repeatedly emphasized the test for rior calculation and design as enunciated in State v. Cotton 1978), 56 Ohio St.2d 8, paragraph three of the syllabus, as ollows: Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an actof homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. (Emphasis added.) ee, also, State v. Taylor (1997), 78 Ohio St.3d 15; State v. laytor(1991), 61 Ohio St.3d 234; State v. Robbins (1979), 58 Ohio t.2d 74. 8 In support of his argument that the killing of Drost was ommitted as an instantaneous decision on only Holland's part, ppellant cites State v. Jenkins (1976), 48 Ohio App.2d 99. In enkins, the court indicated the following: Prior calculation and design sets up a more demanding standar d than the old first degree murder standard of deliberate and premeditated malice. Prior calculation and design requires the accused to have killed purpose fully after devising a plan or scheme to kill. There must be some kind of studied analysis with its object being the means by which to kill. The kind of momentary deliberation or instantaneous premeditation that was the accepted standard under the old statute, as exemplified by State v. Schaffer (1960), 113 Ohio App. 125, is no longer sufficient or acceptable. (Emphasis added.) The Jenkins court then elaborated as follows: The trier of fact must look to the context in which the killing occurred to determine whether there was prior calculation and design. Some of the important factors to be examined and considered in deciding whether a homicide was committed with prior calculation and design include: whether the accused knew the victim prior to the crime, as opposed to a random meeting, and if the victim as known to him[;] whether the relationship had been strained; whether thought and preparation were given by the accused to the weapon he used to kill and/or the site on which the homicide was to be committed as compared to no such thought or preparation; and whether the act was drawn out over a period of time as against an almost instantaneous eruption of events. These factors must be considered and weighed together and viewed under the totality of all circumstances of the homicide. When the evidence adduced at trial establishes that the victim was unknown to the accused prior to the crime, and that there was little or no preparation, but rather that the crime was an instantaneous eruption of events, then *** the evidence adduced at trial is legally insufficient ***. (Emphasis added.) Appellant contends the testimony at his trial demonstrated that rost was completely unknown to him, that appellant's weapon was 9 either the murder weapon nor one designed to kill, and that olland 's act of thrusting the knife into Drost was completely nexpected. However, in considering appellant's argument, this ourt is required to consider the totality of the circumstances urrounding the homicide. The testimony presented at trial, viewed in the light most avorable to the prosecution, established the following facts: 1) ll of the youths who participated in the crime were in Davis' edroom for several hours before the incident; 2) they were istening to rap tapes, among which was the one which acknowledged practice called creepin on ah come up; 3) Holland, who was in ossession of a formidable knife, mentioned he needed some money; ) appellant suggested they creep on a[h] come up; 5) the five ouths all left the house together; 6) they proceeded from a esidential area to a commercial area; 7) Holland had his knife open; 8) prior to reaching Madison Avenue, appellant, who called imself K.A.N. (pronounced cane ), picked up a large tree branch nd took it with him; 9) the youths selected Drost, who carried only small umbrella, as easy prey; 10) the youths stalked and urrounded Drost;11) Davis then restrained Drost as Holland thrust is knife into Drost's chest; 12) as Davis released Drost, appellant houted profanities at Drost and began striking Drost with the eapon he possessed; 13) after Drost was completely incapacitated, ppellant retrieved Drost's wallet; and 14) the youths all fled in he same direction. The period of time the youths were together was hus considerable. See, e.g., State v. Claytor, supra; cf., State 10 . Mulkey (1994), 98 Ohio App.3d 773. Intent to kill may be deduced from the surrounding ircumstances. State v. Burke (1995), 75 Ohio St.3d 399 at 404. he circumstances of this case indicate appellant's acts could be iewed as going beyond the impulse of the moment. State v. laytor, supra;see, also, State v. Nelson (July 3, 1991), Cuyahoga pp. No. 58813, unreported. Testimony at trial indicated appellant may have been trying to mpress Davis' sister, in whom he was interested. Appellant stated o police officers he was always ready for a fight. The tree ranch identified by Williams and Davis as appellant's weapon easured approximately four feet in length and had a circumference f approximately five inches. Although the assistant county coroner estified the actual cause of Drost's death was the knife wound to he chest, which punctured Drost's heart, Drost's upper body also emonst rated he had been subjected to blunt trauma injuries of ufficient force to fracture his occipital bone and nasal bone. The court in State v. Moreland, (1990), 50 Ohio St.3d 90 tated two requirements to support the element of prior calculation nd design, viz., (1) sufficient time and opportunity for the lanning of the homicidal acts, and (2) circumstances which show a cheme to implement the calculated design to kill. These equirements existed in this case. Viewed in a light most favorable o the prosecution, appellant and his companions entered into a plan o rob someone by means of two potentially deadly weapons, then arried out their plan with lethal consequences. State v. Robinson, 11 upra; State v. Burke, supra; State v. Mish, supra. Therefore, the vidence met the test of sufficiency, since the jury could easonably have found the element of prior calculation and design equired by R.C 2903.01(A). State v. Taylor, supra. Appellant further contends the jury may have lost its way hen considering the evidence of intent. However, there was onsistent, credible testimony adduced at trial in this case which upported the jury's conclusion that appellant and his companions ere involved in a plan to stab and rob someone on the evening of uly 9, 1995. State v. Cotton, supra; State v. Price (1989), 52 hio App.3d 49. In stating this, this court is mindful that an ppellate court need not subject circumstantial evidence of guilt o a standard of proof other than proof beyond a reasonable doubt. tate v. Jenks, supra. The record in this case reflects that weighing all the vidence, drawing all the reasonable inferences therefrom and onsidering the testimony and credibility of the state's witnesses, ppellant and his witnesses, the verdicts fail to indicate the jury ost its way and created a manifest miscarriage of justice. State . Martin, supra; State v. Outlaw (Oct. 22, 1992), Cuyahoga App. o. 61194, unreported. Accordingly, appellant's first assignment of error is verruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT APPELLANT OF AGGRAVATED ROBBERY. 12 Appellant presents only a conclusory argument with respect to this assignment of error which is contained in the body of his appellate brief. Furthermore, appellant cites no authority for his conclusion. See, e.g., North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342. Under these circumstances and in view of this court's disposition of appellant's first assignment of error, appellant's second assignment of error is overruled. Appellant's convictions are affirmed. 13 It is ordered that appellee recover of appellant 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 Cuyahoga County 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, P.J., AND TERRENCE O'DONNELL, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .