COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71474 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : DONELL PARKER : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-337574 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 4403 St. Clair Avenue BY: STEVEN A. DEVER, ESQ. Cleveland, Ohio 44103 and DARCY MOULIN, ESQ. ASSISTANT COUNTY PROSECUTORS 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, P.J.: Defendant Donell Parker appeals from his convictions for aggravated murder and aggravated robbery. For the reasons set forth below, we affirm. On February 1, 1996, a juvenile court complaint was issued against defendant charging him with delinquency in connection with the 1987 shooting death of Robert Letson. Defendant, who was 26 years old when the charges were issued, was subsequently bound over to the general division of the court. Thereafter, on April 16, 1996, defendant was indicted for one count of aggravated murder by prior calculation and design, one count of aggravated murder in connection with aggravated robbery (felony murder), both with felony murder and firearm specifications, and one count of aggra- vated robbery, with a firearm specification. Defendant pleaded not guilty to the charges and the matter proceeded to a jury trial on August 12, 1996. The state subsequently dismissed the charge of aggravated murder by prior calculation and design and proceeded to the remaining two counts. The state's evidence demonstrated that during the early morn- ing hours of April 24, 1987, Robert Letson, Kim Wilson, and her sister Sherrie Scott were together at Bev's Bar at West 98th Street and Lorain Road. At approximately 3:00 a.m., Letson drove the women to 7635 Lorain Road, the home of Kim's sister, Patricia White, who was watching Kim's child. Kim went to the apartment to get the child and Sherrie went to the apartment a few minutes later while Letson then waited in his car. A man who had been pacing at -3- a phone booth on the opposite side of the street ran across the street and approached Letson with a .38 caliber handgun. He got into the vehicle and, moments later, shot Letson. Letson went to the apartment and told Wilson and White that a black kid shot him. (Tr. 111). He was scared and appeared to be in a great deal of pain and stated that the man demanded money then shot him after he produced an empty wallet. Letson was later taken to St. John's Hospital. A gunshot entered defendant's right torso. It then passed through his liver, struck the gallbladder, struck the large intestine and struck and perforated the small intestine. His gallbladder was removed and other injuries were surgically repaired, but Letson's wounds continued to bleed. As a result of this blood loss, he suffered cardiac arrest during a second surgical procedure undertaken to stop the bleeding. He sustained irreversible brain damage and later died on May 12, 1987. The state's evidence further demonstrated that the pellet recovered from Letson was unjacketed and weighed 158 grains. Based upon its diameter, it was either ammunition for a .38 or .357 caliber firearm. Patricia White observed the shooting and remarked that someone was messing with Bob. (Tr. 108). She heard a pop and watched a man exit the passenger side of the car and cross the street to the west. She informed police that the assailant was a young black male, approximately 16-17, with a medium build. Joseph Zappone, who lives at 7701 Lorain Avenue also observed -4- the shooting and told police that the assailant fled to the area of 7732 Lorain and that moments later, the lights then were turned on in the upper unit of this dwelling. Zappone was certain that the assailant fled to 7732 Lorain. He further testified that the house was now yellow, but had been pained blue at the time of the shooting. On cross-examination, Zappone acknowledged that he had des- cribed the man as approximately 27 years old, 6' 1", with lighter skin and bushy hair. It was established, however, that defendant has dark skin and is under six feet tall. With regard to Letson's car, the police permitted Letson's roommate, Charles Summerson, to drive his vehicle away from the scene of the shooting. Summerson used the vehicle and washed it. Later, after Letson was pronounced dead, or twenty-four days later, fingerprints were taken from the vehicle. They were not defendant's. The 1987 police investigation subsequently focused upon the occupants of 7732 Lorain Road. Det. Parker Adrine went to the home on April 24, 1987 and spoke to Steven Robinson, defendant's cousin. Robinson informed him that he lived there but established that he was not in the area at the time of the shooting. Robinson also stated that Andre McGee, two children and a woman also lived at that address. He did not provide Det. Adrine with defendant's name. In a subsequent lineup, Zappone indicated that McGee was not the assailant. The police subsequently spoke with defendant's -5- mother, Kathy Parker, who stated that Tyrone Cochran had been a visitor to the home but he was later eliminated as a suspect. At no time did she state that defendant lived at the dwelling. Det. Adrine went to Mrs. Parker's home again in 1987 for a follow-up interview and she again neglected to mention that defendant also lived there. Det. Adrine remained in a small room near the door and he did not see defendant at this time. Several months later, Andre McGee contacted the police and claimed to have information regarding the shooting. He offered to provide police with the name of the assailant if they helped him obtain a reduction in prison time which he was facing on an unrelated matter pending in Lorain County. He ultimately did not provide this information, however, as the assistant prosecutor handling the Lorain County matter would not agree to the proposed reduction. The investigation of the shooting stalled for nine years. In December 1995, Kathy Parker contacted police claiming to have information concerning the 1987 shooting which took place near her previous home at 7732 Lorain Road. Parker told police that in 1987, two police detectives came to her home to ask her about the shooting. She stated that she was incarcerated at the time and did not know anything about it. While the police were there, defendant hid on a sofa in the living room. After they left, he said that he thought that the police were going to arrest him for the shooting, so he covered his head. According to Parker, defendant then stated that he had robbed a man who was sitting in a car. The man reached -6- for something, and defendant shot him. Shortly thereafter, she discovered a gun in the house and demanded that defendant get rid of it. Parker explained that she did not inform the police of these statements earlier because she could not turn in her own son. She stated that on December 30, 1995, however, defendant went to her home and asked her to allow his girlfriend and her mother to move in. Parker refused and defendant slammed her head against a wall and said, I should have killed you a long time ago. You told the police about that murder. (Tr. 302). Parker told defendant that she had not spoken to the police about the murder. Defendant threatened her with a razor blade then hit her with an electric screwdriver. Parker's younger son entered the room and defendant told Parker that he was going to kill her then left. Parker acknowledged that she has been convicted for felonious assault, theft offenses, and having a weapon while under dis- ability. It appears that in late 1995, there was an outstanding warrant for her arrest in connection with another felonious assault, but Parker denied that she provided information concerning defendant in order to gain an advantage in that matter. Tracy Durkin, defendant's former girlfriend testified that defendant is the father of three of her children. The oldest child was born on April 26, 1987. At this time, Durkin was living with defendant in the the house on Lorain Avenue in the area of 73rd Street. (Tr. 652) Two days before the baby was born, Durkin argued with defendant when he refused to stay home with her. The -7- following morning, defendant told her that while he was out, he tried to rob a man and shot him. According to Durkin, defendant had .45 caliber weapon and another smaller gun. Defendant's friend Cedric Polk testified that during the period of time when defendant lived at the blue house on Lorain Road, defendant gave him a .32 or .38 caliber revolver and told him to get rid of it. Polk gave the gun to someone named Kevin. Polk also testified that defendant accused McGhee of the shooting but later bragged that he had to lay a person down on Lorain Road when that person did not give him money during a robbery. Polk acknowledged that he has been convicted of receiving stolen property, drug abuse and domestic violence, however, and the police agreed not to charge him with obstructing justice for his stated disposition of defendant's weapon, if he provided a truthful statement in this matter. Anthony Lewis, another friend of defendant, likewise testified that while he and defendant were incarcerated together in county jail, defendant stated that he had shot a man. He acknowledged, however, that drug abuse charges against him had recently been dismissed in exchange for his testimony against defendant. Defendant elected to present evidence and offered the testi- mony of his stepfather, Eugene Parker, and his friend, Steven Robinson. Mr. Parker testified that Kathy Parker fabricated her claim that defendant shot the man on Lorain Road to punish him for the beatings. (Tr. 865). Steven Robinson testified that he was present when police went -8- to Kathy Parker's home in 1987 with questions concerning the Letson shooting. According to Robinson, after the police left he, not defendant, expressed relief that the police had not arrested him because Robinson was an admitted car thief at this time. Later, in December 1985, Robinson called defendant from prison and spoke with various members of defendant's family. During this conversation, Kathy Parker told Robinson that she was facing charges for stabbing a woman and feared being sent to prison and that she would do whatever it takes to keep from going to prison. The matter was subsequently submitted to the jury. The jury found defendant guilty of all of the charges as set forth in the indictment. At the subsequent sentencing hearing, defendant made an unsworn statement in which he denied committing the offenses. The jury determined that defendant should be sentenced to life imprisonment with parole eligibility after thirty years. On September 24, 1996, the trial court sentenced defendant to a term of incarceration of thirty years to life, for aggravated murder, plus three years for the firearm specification and sentenced him to a consecutive term of ten to twenty-five years, for aggravated robbery plus three years for the firearm specification of that count. Defendant now appeals and assigns four errors for our review. Defendant's first assignment of error states: THE TRIAL COURT ERRED BY ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE INTRODUCED TO THE JURY. Within this assignment of error, defendant complains that the -9- trial court erroneously permitted the state to introduce evidence that he had previously beaten his mother, Kathy Parker, and threat- ened to kill her, that he had beaten his siblings and enticed them to use and sell drugs, that he had battered his former girlfriend, Tracey Durkin, and had not cared for his children. Defendant additionally complains that this evidence constitutes impermissible victim impact evidence. In State v. Soke (1995), 105 Ohio App.3d 226, 249, this court considered a similar argument and stated as follows: Evidence of other acts is admissible if (1) there is substantial proof that the alleged other acts were com- mitted by the defendant, and (2) the evidence tends to prove motive, opportunity, intent, plan, knowledge, identity, or absence of mistake. State v. Lowe (1994), 60 Ohio St.3d 527, 530, 634 N.E.2d 616, 619, citing State v. Broom (1988), 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 689-691. Evidence of other crimes, wrongs or bad acts independent of, and unrelated to, the offenses for which a defendant is on trial is generally inadmissible to show criminal propensity. State v. Woodard (1993), 68 Ohio St.3d 70, 73, 623 N.E.2d 75, 78. As with all evidence, other acts evidence is subject to the relevancy and fairness requirements of Evid.R. 403, reviewable by this court for an abuse of discretion. We find that the evidence complained of is not "other acts" as defined by Evid.R. 404(B). Defendant cites as other acts evidence Daniel Crawford's statement that he did not testify at defendant's previous trial because he was afraid of defendant's "biker friends," Dean Soke's (another of defendant's sons) statement that he had a poor relationship with defendant, and testimony that defendant's grandmother was the only person in the family who worked. The state did not offer evidence of defendants' family life in order to prove defendant's character and show that he acted in conformity therewith. The evidence did tend to explain why family members and other witnesses testified at trial, or refused to testify at defendant's previous trial. Strained family relations in this context are not "bad acts" as contemplated by Evid.R. 404(B). State v. Webb (1994), 70 Ohio St.3d 325, 340, -10- 638 N.E.2d 1023, 1036. Likewise, in this instance, the testimony challenged herein tended to explain why defendant's mother and his former girlfriend initially refused to contact the police, then subsequently decided to testify against him at trial. In light of this context, the strained family relations are not bad acts as contemplated by Evid.R. 404(B). State v. Soke, supra. See, also, State v. Stokes (1991), 72 Ohio App.3d 735, 743, (trial court did not erroneously permit introduction of other acts evidence in connection with child's testimony that she was not unhappy that defendant left because he hurt her mother, and in connection with mother's testi- mony regarding defendant's beatings where, inter alia, statements were crucial to establishing the time frame of when the child came forward with her account that her father had sexually abused her). In any event, defendant's witness, Eugene Parker, testified that Kathy Parker fabricated her claim of defendant's involvement in the Letson shooting in order to punish him for "the beatings." (Tr. 865). Thus, the defense relied upon this evidence in order to establish a basis for undermining Kathy Parker's credibility. With regard to defendant's additional claim that this testimony constituted improper victim impact evidence, we note that this Kathy Parker and Tracy Durkin were not the victims in this matter. The convictions at issue concern the robbery and shooting of Robert Letson. Absolutely no evidence was elicited to recount the impact which his death has had upon his survivors. Victim impact evidence was not elicited. Cf. State v. Reynolds -11- (1998), 80 Ohio St.3d 670, 678; State v. Fautenberry (1995), 72 Ohio St.3d 435, 439. This assignment of error is without merit. Defendant's second assignment of error states: THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. Defendant next complains that the jury lost its way in convicting him because there was no reliable eyewitness evidence and there was no physical evidence linking him to these crimes. In State v. Thompkins (1997), 78 Ohio St.3d 380, 387, the Supreme Court set forth the role of an appellate court in determining whether a judgment is against the manifest weight of the evidence: When a court of appeals reverses the judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the fact- finder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31,] at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable infer- ences, considers the credibility of witnesses and deter- mines 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. The discretionary power to grant a new trial should only be granted in the exceptional case in which the evidence weighs heavily against the conviction. ) Moreover, the credibility of witnesses and the weight attri- butable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. -12- Applying the foregoing, we note that while Joseph Zappon testified that the assailant was lighter skinned, taller, and older than defendant, he unequivocally established that the shooter fled in the direction of 7732 Lorain Road and that moments later, a light then went on inside the upstairs unit of this dwelling. Ine addition, despite her many changes of residence, and admitted problems with the law, Kathy Parker clearly and credibly established that while they lived at 7732 Lorain Road, defendant displayed a consciousness of guilt and hid when the police came to the home to question Parker regarding a nearby shooting. Likewise, Tracy Durkin testified that two days before the birth of their first child, defendant admitted to her that he had tried to rob a man then shot him. The state also demonstrated that defendant had Anthony Lewis dispose of a .38 caliber firearm and that Letson's wounds were likely caused by a weapon of this caliber. Accordingly, we conclude that the state presented compelling evidence of defendant's guilt. We are therefore unable to conclude that the jury lost its way and created a manifest miscarriage of justice in convicting defendant of the instant offenses.1 This assignment of error is without merit. Defendant's third assignment of error states: 1 As to defendant's additional argument that he has only one leg and not one witness reported that the assailant had a limp, it is unclear from the record whether defendant lost his leg before or in the nine years after the shooting. (Tr. 327-328). In any event, evidence of record indicates that he walks normally. (Tr. 796). -13- THE TRIAL [COURT'S] *** NUMEROUS INACCURATE TRIAL PHASE INSTRUCTIONS DEPRIVED THE APPELLANT HIS PROTECTIONS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Within this assignment of error, defendant asserts that the trial court erred by instructing the jury that defendant was responsible for the natural and foreseeable consequences that follow from his actions, as this instruction permitted the jury to convict defendant of aggravated murder on a finding of less than specific intent. Defendant also complains that the trial court's instruction regarding the felony murder specification permitted defendant to be convicted without unanimity, as part of the jury may have determined that he was the principal offender and part of the jury may have determined that he acted with prior calculation and design. With regard to the second of these claims, we note that the trial court completely omitted any reference to prior calculation and design and simply instructed the jury that it had to consider whether the murder was committed in connection with an aggravated robbery and that the defendant was the principal offender in the commission of the aggravated murder. (Tr. 1044-1045). Similarly, the verdict forms for this charge omitted any reference to prior calculation and design. This claim therefore lacks support in the record and is accordingly without merit. L.A.D., Inc. v. Bd. Of Commrs. (1981), 67 Ohio St.2d 384, 388. With regard to the foreseeability instruction, we note, as a matter of procedure, that defendant did not object to the instruction. Thus, we consider whether the instruction resulted in -14- a manifest miscarriage of justice. Crim. R. 52(B); State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. With regard to the substantive merit of this claim, this court, in State v. Jacks (1989), 63 Ohio App.3d 200, 205, condemned use of the foreseeability instruction where specific intent must be proven by the state as it may undercut the mens rea requirement for murder. However, the supreme court has determined that the jury instructions must be viewed as a whole and will not be reversed if they, in their entirety, make clear that the jury must find purpose to kill in order to convict. State v. Phillips (1995), 74 Ohio St.3d 72, 100, quoting State v. Burchfield (1993), 66 Ohio St.3d 261, 262-263. In this instance, we conclude that the instructions, as a whole, clearly informed the jury that it had to find that defendant acted with purpose to kill in order to find him guilty of aggravated murder. The trial court instructed the jury that purpose to kill is an essential element of the crime of aggravated murder, that defendant had to have the specific intention to kill Letson in order to be found guilty, that purpose required conscious objective and was distinguishable from accident, that specific intent was required, and that the use of a deadly weapon could be considered. (Tr. 1036-1038). Moreover, defendant presented no evidence to suggest that the homicide was committed knowingly or recklessly. Accordingly, we are unable to conclude that the trial court's instruction resulted in plain error. The third assignment of error is without merit. -15- Defendant's fourth assignment of error states: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL [COUNSEL]. Finally, defendant complains that his trial counsel was ineffective in permitting the state to introduce the prejudicial other act evidence and in failing to obtain proper jury instruc- tions regarding foreseeability and the felony murder specification. In establishing a claim of ineffective assistance of trial counsel, it is clear that a defendant must make a two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amend- ment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington (1986), 466 U.S. 668, 687. As we have rejected the claim that improper other act evidence was admitted and have determined that the challenged instruction was not erroneous, defendant has failed to demonstrate that his counsel's performance was erroneous. Accordingly, we reject this assignment of error. The fourth assignment of error is without merit. Affirmed. -16- 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. PATTON, J., AND CORRIGAN, J., CONCUR ANN DYKE 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 .