COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72011 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION DONTEZ WHITE : : Defendant-appellant : : : APRIL 16, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-341905 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor DIANE SMILANICK, ESQ. Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 For defendant-appellant: PAUL MANCINO, JR., ESQ. Suite 1016 75 Public Square Cleveland, OH 44113 -2- PATTON, J. The grand jury returned a sixteen count indictment against defendant Dontez White charging him and three co-defendants with committing aggravated burglary, aggravated robbery, kidnapping, rape and felonious assault during an armed break-in at a Cleveland house. All the counts contained firearm specifications. The court dismissed aggravated robbery and kidnapping counts relating to one of the alleged victims, and the rape counts relating to another victim. The jury found defendant guilty of one count of aggravated burglary, four counts of aggravated robbery, four counts of kidnapping, and one count of felonious assault, as well as the firearm specifications to each count. Among the many issues raised on appeal are whether the court violated defendant's rights when it insisted that defendant and his three co-defendants be tried together, whether the court erred by denying defendant's motion to suppress his identification, and whether the court erred when instructing the jury on the elements of the various offenses. The offenses occurred at a Cleveland house just after midnight. Present in the house at the time (as relevant to the charges contained in the indictment) were the owner of the house, a person living with the owner at the time, and the owner's daughter. The person living with the owner of the house told the jury he had been in the living room when four masked or hooded gunmen broke down the front door and stormed into the room. The gunmen ordered him to the ground at gunpoint and asked him where ID (the owner's son) kept his money. -3- The daughter testified she had been in her bedroom using her telephone when a gunman burst into her room, grabbed the telephone from her and demanded to know where her brother kept his money. When she denied any knowledge of her brother's money, the gunman told her to lie face down on the bed and pull the bedding over her head. At that point, a second gunman entered the room and the daughter peeked out from under the bedding and saw defendant standing nearby, holding a shotgun. Defendant remained in the daughter's room while the other gunman left. That same gunman returned later with the owner and ordered her onto the daughter's bed. The house owner testified she had been in her bedroom when one of the gunmen came into her room and told her he wanted money. When the owner told him she had no money, the gunman made her lie face down on her bed and cover her head with a pillow. The gunman then searched the owner's room, tearing everything up. When finished searching the room, the gunman ordered the owner into her daughter's bedroom and told her to lie down on the bed with the daughter. The owner also testified that while in her daughter's room she saw one of the gunmen holding a shotgun. While the gunmen searched the premises for money, the owner's son and his girlfriend entered the house, unaware of what had been transpiring inside. As soon as the son walked in the house, someone put a gun in his face and ordered him to the ground. The gunmen then brought the son up to his third floor room and told him -4- to show them where he kept his money. When he told them he had no money, one of the gunmen hit him on the head with a handgun. The son's girlfriend corroborated his testimony. She said they approached the house that evening and she noticed lights on in the son's third-floor room, an unusual occurrence given his absence from the house. When they entered the house, a gunman pointed a gun at them and ordered them to the ground. The girlfriend noticed the man living with the owner laying bound and gagged on the living room floor. The gunmen escorted her to the second floor bedroom where both the owner and her daughter were being held. They took the son to the third floor. One of the gunmen told her the son owed them $10,000 and if they did not receive their money they would kill the occupants of the house. One of the co-defendants, Melvin Thompson, took the girlfriend into another bedroom and forced her to fellate him at gunpoint. The girlfriend testified Thompson stopped when he heard a loud noise coming from another area of the house. Another gunman entered the room and said something to Thompson, and the others came down from the third floor. The gunmen then ran down the stairs and fled from the house. The son said the gunmen left his room and he jumped out the window and ran to telephone the police. As he fled, he saw the gunmen jump into a car that pulled along side them. The girlfriend could not identify the source of the loud noise, but guessed that it could have been caused by a fan falling from the third floor window as the son jumped. -5- The victims all testified that the gunmen remained at the house for one to one and a half hours, during which time they ransacked the house. The gunmen stole $1,900 in uncashed social security checks from the owner, $80-90 the man living with the mother hid beneath the couch, $500 from each the son and his girlfriend, and $18 taken from the daughter's purse. I The first and second assignments of error are interrelated in that they concern the testimony of state witness Charley Cooper, who described a conversation he had with co-defendant Julius Potter in which Potter told Cooper that some niggers is out on some house shit and that Cooper should watch his back. Defendant complains he could not exercise his Sixth Amendment right to cross-examine Potter about this statement because Potter exercised his Fifth Amendment right not to testify. This scenario resulted, says defendant, because the court would not sever his trial from that of the other co-defendants. He claims his inability to cross-examine Potter (despite the court's limiting instruction to the jury that it should not consider Potter's statement as bearing on defendant's guilt) violated the rule set forth in Bruton v. United States (1968), 391 U.S. 123 and warrants reversal. The Sixth Amendment to the United States Constitution1 guarantees a criminal defendant the right to confront witnesses 1 The Ohio Supreme Court's interpretation of Ohio's ConfrontationClause, as contained in Section 10, Article I of the Ohio Constitution, parallels that of the United States Supreme Court's interpretation of the Sixth Amendment. See State v. Self (1990), 56 Ohio St.3d 73, 78. -6- against him. Where two or more defendants are tried jointly, therefore, the pretrial confession of one of them that implicates the others is not admissible against the others unless the confessing defendant waives his Fifth Amendment rights as to permit cross-examination. Cruz v. New York (1987), 481 U.S. 186, 189, 190. In Bruton, Bruton and Evans were tried together for armed robbery. A postal inspector testified that Evans confessed to the crime, and his confession implicated Bruton. The trial judge permitted the jury to hear the postal inspector's testimony about Evans' statement under a hearsay exception relating to a statement against interest. The trial judge told the jury not to consider Evans' confession as bearing on Bruton's guilt. The supreme court held that Bruton's constitutional right to cross-examine witnesses was violated and that no limiting instruction to a jury would effectively remove the taint associated with a co-defendant's confession, *** for how could the jury realistically be expected to consider the confession when deliberating on Evans' guilt but ignore it when deliberating on Bruton's guilt? Gaines v. Thieret (C.A.7, 1988), 846 F.2d 402, 404. See, also, Lee v. Illinois (1986), 476 U.S. 530, 542. The Bruton rule, as applied in Ohio, is not limited to confessions, but to any extrajudicial statements made by the codefendant inculpating the accused. See State v. Moritz (1980), 63 Ohio St.2d 150, paragraph one of the syllabus. The Bruton rule is not absolute. The courts have carved out exceptions to the rule in cases where (1) the co-defendant's -7- statements have been redacted to the point where the statements do not name or reasonably implicate the defendant, Richardson v. Marsh (1987), 481 U.S. 200, 211; In re Watson (1989), 47 Ohio St.3d 86, 91, or (2) when the extrajudicial statements are admissible against the declarant's co-defendant under the co-conspirator exception to the hearsay rule set forth in Evid.R. 801(D)(2)(e). See, e.g., Bourjaily v. United States (1987), 483 U.S. 171; United States v. Shores (C.A.4, 1994), 33 F.3d 438 (construing Fed.R.Evid. 801(d)(2)(E)). At trial, Cooper testified in two parts. In his initial testimony, he related his conversation with Potter: He told me he told me to watch my back because something was about to go down. I'm like, `What you talking about?' He was like, `Some niggers is out on some house shit.' I'm like, What you talking about?' He's like, you know what I'm saying, `These niggers want to rob you, but it ain't nothing, because you my dude. *** He's like, `Dontez and ' Defense counsel objected and, after a sidebar conference, the court told the jury: Ladies and gentlemen of the jury, I'm going to direct you at this time that the purpose of this testimony is to hear the statements actually made by a given individual defendant. I'm going to instruct you to disregard specif- ically the reference to Dontez, ladies and gentlemen, because he didn't make the state- ment that this gentleman heard. On further questioning, Cooper again began to mention defendant's name as part of his conversation with Potter. The court immediately sustained an objection and at the sidebar warned Cooper not to mention defendant's name. The court decided to start -8- over with Cooper's testimony the following day. With the state prefacing its questions by telling Cooper not to use any names, Cooper testified as follows: [Potter] told me that to watch my back because some dudes was on some other shit or something. So I'm like, `What are you talking about?' He was like, `Keep this between me and you.' He was like, `Some dudes are talk- ing about robbing something.' Defense counsel again objected, this time arguing that Cooper's testimony amounted to a Bruton violation. The court overruled the objection and told the jury: You are to look at this and listen to this only with regard to Mr. Potter. You are not to consider the other defendants, as they were not present when this conversation was alleg- edly made, nor is he stating that they were the other parties that were involved. Only look at this relative to Mr. Potter. We find the court's ruling did not violate defendant's right to cross-examination because defendant cannot show that he was one of the niggers or dudes who would be perpetrating the robbery. It is true that Cooper briefly mentioned defendant's name as he described his conversation with Potter, but we cannot say this brief mention violated defendant's right to cross-examine Potter. In Richardson, the court noted that Bruton applied when the codefendant's confession expressly implicat[ed] the defendant as his accomplice and the testimony would prove powerfully incrimi- nating. 481 U.S. at 208, citing Bruton, supra, at 124, fn.1 and 135. Cooper's testimony did not expressly implicate defendant nor did it inferentially constitute powerfully incriminating evidence against him. Cooper's reference to defendant followed his -9- statement that some niggers were planning some house shit, but in context this mention of defendant's name could not reasonably be construed to indicate that defendant was one of those persons planning the robbery. The statement, [h]e's like, `Dontez and ', could mean almost anything given the point at which the court cut off Cooper's testimony. It is possible Potter had been implying defendant learned of the plot to commit the robbery and came forward to warn Cooper. This conclusion is not a stretch given that Cooper's testimony does not reasonably implicate Potter with conspiracy to commit the robbery. Instead, it might suggest that Potter himself had a benevolent purpose in warning defendant not that he was stating his complicity. The court's redacting of defendant's name from Cooper's testimony is consistent with Richardson v. Marsh. We do not believe the mere mention of defendant's name under the specific circumstances of this case was so powerfully incriminating that the jury would not be able to heed the court's cautionary instruction. The court correctly told the jury that Cooper's testimony could not be construed as stating that defendant or any of the other defendants were involved, and we see no possibility that the jury disregarded that instruction. Finally, defendant argues the court could have avoided any impropriety by severing his trial from that of the co-defendants. The courts prefer joint trials because they promote efficiency and serve the interests of justice by avoiding the possibility of -10- inconsistent verdicts. Zafiro v. United States (1993), 506 U.S. 534, 537. Crim.R. 14 permits relief from prejudicial joinder only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Id. at 539 (analyzing similar federal rule); United States v. Hamilton (C.A.7, 1994), 19 F.3d 350, 358. We review refusals to sever trials for an abuse of discretion. State v. Torres (1981), 66 Ohio St.2d 340, syllabus. Having found no error in the court's redaction of Potter's statement and its subsequent limiting instruction to the jury, we find defendant fails to show an abuse discretion or actual prejudice necessary to warrant reversal. The first and second assignments of error are overruled. II The third and fourth assignments of error concern identifica- tions of defendant by three state witnesses. The police did not conduct the photo arrays until three weeks after the robbery. These three victims initially told the police they could not identify defendant as an assailant. However, all three positively identified defendant from the photo array, in large part because they heard on the street that he had participated in the robbery. Defendant claims these identifications resulted from an unduly suggestive photo array and the court should have granted his motion to suppress those identifications. Moreover, he claims the court erred by permitting testimony by a city of Cleveland police detective who testified that several state witnesses identified -11- defendant as one of the gunmen. He complains this amounted to impermissible hearsay. When challenging eyewitness identification testimony, the defendant must show (1) that the identification procedure was unnecessarily suggestive and (2) that the procedure was so suggestive as to give rise to irreparable mistaken identification. Mason v. Braithwaite (1977), 432 U.S. 98, 114. When a motion to suppress concerns photographic identification procedures, the court must determine whether the photographs or procedures used were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable identification. Simmons v. United States (1968), 390 U.S. 377, 384. In State v. Wills (June 5, 1997), Cuyahoga App. No. 70988, unreported at 5, we recently stated, the test is `whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the photgraphs as to suggest to an identifying witness that [the person] was more likely to be the culprit.' (quoting Jarrett v. Headley (C.A.2, 1986), 802 F.2d 34, 41 [brackets sic]). If the pretrial procedures are not suggestive, the identification is admissible and any remaining questions of reliability go to the weight of the identification. United States v. Sleet (C.A.7, 1995), 54 F.3d 303, 309. Defendant complains the photo array shown to the identifying witnesses lacked fairness because he is a large man (weighing 270 pounds) and the photographs shown to the victims did not permit the victims to gauge his weight or height. Just how this fact suggests -12- the array was impermissibly suggestive is not clear. We think the opposite conclusion is compelled the photographs were very fair precisely because defendant's size was not obvious to the viewer. It would be easy for the police to show the victims a single photograph of a corpulent male along with thinner men. That might be suggestiveness of the kind prohibited in Simmons, supra. As constitued, the photo array did not unduly suggest defendant as a perpetrator. Defendant next argues the identifications lacked credibility because the victims conceded they did not see the faces of their assailants and only made their identifications after learning the identity of the perpetrators from friends. The cases addressing suggestiveness of an identification procedure do not address situations where a witness's identifica- tion is prompted by sources other than the state. Since due process refers solely to state action, prompting by civilian sources is simply not a deprivation of the right to due process. It isa factor that would affect the credibility of the identifica- tion, a fact that defense counsel clearly brought out in rigorous cross-examination of the testifying victims. That attempt at impeachment appeared to fail, however, because both the daughter and girlfriend made identifications that did not rely on any other sources. With respect to information the son obtained, we find any aspect of the identification prompted by sources other than the state do not implicate due process concerns. The third and fourth assignments of error are overruled. -13- III The fifth assignment of error complains the court erred by permitting the police detective to mention that several men depicted in a joint exhibit were members of an area gang named the Hough Heights Boys and by permitting the state to comment on gang affiliations in its closing argument. The joint exhibit showed several photographs of different young men that the police showed to some of the victims. When asked why some of the young men were posed with the fingers of their right hands extended, the detective replied, those are gang signs. I believe most of those guys are members of the Hough Heights Boys. The detective went on to identify the Hough Heights Boys as a gang operating on Hough Avenue and East 93rd Street in Cleveland. When the state began to ask questions about the detective's dealings with these people, the court overruled an objection but questioned its relevancy and told the state to ask no more questions about gangs. Defendant maintains this constituted irrelevant and immaterial matter and it deprived him of a fair trial. The Evid.R. 404(B) prohibition against the introduction of other acts evidence applies only when used to prove the character of a person in order to show that he acted in conformity therewith. The proscription against other acts testimony applies to the accused, not to other persons. See State v. Wilkinson (1980), 64 Ohio St.2d 308, 314 ( *** in a criminal trial evidence of previous or subsequent criminal acts, wholly independent of the offense for -14- which a defendant is on trial, is inadmissible. ). None of the testimony concerning the Hough Heights Boys directly implicated defendant. The photographs shown to the victims did not depict defendant, nor did the detective in any way reference defendant as a gang member. We likewise find the state did not impermissibly relate defendant to gang affiliation in its closing argument. The state told the jury, You have some pictures to look at, I assume, of friends of [co-defendant] Charles Wilson, okay, and gang members. You will see gang signs all over this. While we express no opinion on the impact, if any, of this statement as it relates to Charles Wilson, we can say that it did not relate in any direct way to defendant. The fifth assignment of error is overruled. IV The sixth assignment of error concerns testimony by the victims that they learned the identities of the perpetrators from friends and acquaintances in the neighborhood. Defendant maintains this constituted inadmissible hearsay. Hearsay is defined as a statement, other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. See Evid.R. 801(C). Two of the identifications did not rely on any other outside sources, and those witnesses did not testify to any out of court statements made by others. The daughter testified she knew defendant before the robbery and identified him after seeing his face. She did not testify that she relied on any other information in order to make the identifica- tion. She expressly denied learning defendant's identity from others when asked if anyone assisted her identification. Simi- larly, the girlfriend did not testify that she relied on any other persons to assist her when identifying defendant. The son testified he could not identify any of the assailants by sight, although he could identify co-defendant Wilson by voice. In the days after the robbery, he testified he spoke with people in the neighborhood. Without stating what those persons said, he testified he subsequently went to the police and told them he knew who committed the robbery. He then identified defendant from a photo array (despite admitting he did not see defendant and could not identify him immediately after the offense). Defendant maintains this created an implied assertion which violated Evid.R. 801(A)(2). Conduct by the declarant that is not intended to be an assertion is not encompassed by the definition of a statement in Evid.R. 801(A). The son's testimony did not amount to hearsay because the son did not offer an assertion by another person the son simply told the jury what he did following his conversations with those persons. In that context, his testimony simply explained his subsequent investigative activities, much as the courts permit police officers to testify to what course of conduct they undertook as a result of conversations engaged in during the course of a criminal investigation. See State v. Thomas (1980), 61 Ohio St.2d 223, 232; State v. Congeni (1981), 3 Ohio App.3d 392, 398. Even if the son's testimony amounted to hearsay, we would not find the error reversible. As recited above, the testimony by both the daughter and girlfriend showed they identified defendant without help from other persons; hence, the jury's verdict was supported by otherwise admissible identification evidence. The sixth assignment of error is overruled. V In his seventh assignment of error, defendant complains the court erred by failing to permit him to conduct an in camera inspection of a police report that summarized the daughter's interview with the police. Defendant maintains this report was such a substantially verbatim recital of the daughter's interview that it qualified as a witness statement under Crim.R. 16(B)(1)(g) and should have been made available for the daughter's cross- examination. Crim.R. 16(B)(1)(g) provides for an in camera inspection of a written or recorded witness statement upon completion of a witness' direct examination at trial. When considering whether a writing constitutes a statement of the witness, we have held it must be shown that either the witness prepared, signed or adopted the statement, [or] that it minimally is a continuous, narrative statement made by the witness and recorded verbatim, or nearly so. State v. Cummings (1985), 23 Ohio App.3d 40, 43, citing State v. Johnson (1978), 62 Ohio App.2d 31, 37 (internal quotation marks omitted); State v. Henry (1987), 37 Ohio App.3d 3. Defendant did not ask the court to seal the statement in question and place it in the record for appellate review, cf. State v. Henry, 37 Ohio App.3d at 8, so we are necessarily confined under the circumstances to a determination whether the court abused its discretion by finding the detective's interview notes did not constitute a written statement. The record shows the state submitted the summary to the court. In sidebar remarks placed onto the record, the state told the court an officer made a summary of the daughter's interview It may not be in the words that she said, as there are no quotation marks in the report, but it appears to be a summary of what she told the police officer. I don't know how she could be held to those words. Given this representation, we cannot say the court abused its discretion by finding the summarization of the daughter's interview did not constitute a statement as contemplated by Crim.R. 16(B)(1)(g). The seventh assignment of error is overruled. V The eighth assignment of error complains the court violated defendant's right to due process when it answered questions from the jury outside his presence. Defendant premises this argument on jury questions contained in the record, and the absence of any notation in the transcript that the court convened the jury in the courtroom and answered those questions on the record. He reasons this absence of evidence necessarily implies the court failed to answer the jury questions on the record. We rejected an identical claim in State v. Whittsette (Feb. 13, 1997), Cuyahoga App. No. 70091, unreported. While acknowledg- ing Crim.R. 43 requires the defendant's presence at every stage of trial, we also noted an accused may voluntary choose to be absent at certain stages of the trial. Finding no evidence the court failed to notify Whittsette of the jury's questions or that he was prevented from being present while the trial court answered the questions, Id., unreported at 4, we concluded Whittsette's absence was voluntary. The same analysis we employed in Whittsette applies in this case. The record fails to demonstrate any violation of defendant's due process right to be present at trial. Our opinion is not swayed by State v. Schiebel (1990), 55 Ohio St.3d 71. When addressing the issue whether Schiebel waived his right to be present in court when the trial judge gave supplemental instructions to the jury on a Saturday morning, the supreme court stated: Disposition of this issue does not rest upon whether [Schiebel] waived his presence on Saturday morning. We find the record inade- quate to support a finding that Schiebel and his counsel voluntarily absented themselves from the Saturday morning proceedings. Id. at 92. The supreme court made this statement with uncontradicted knowledge that neither Schiebel nor his attorney were present when the trial judge gave the jury its supplemental instructions. In this case, the record does not indicate whether defendant or his attorney were present, but unlike Schiebel, defendant makes no specific argument that he had been absent. His only complaint is that the court answered the jury's questions off the record. Of course, the better practice is for the court to make sure the record shows continuing compliance with Crim.R. 43(A), but defendant's complaint gives us no reason to assume the court answered the jury's questions in his absence, and we will not infer that absence simply because the court did not answer the jury's questions on the record. The eighth assigned error is overruled. VI The ninth, tenth, eleventh and thirteenth assignments of error raise various challenges to the jury instructions. Defendant did not object to any part of the court's charge. Absent a timely objection, he has no standing to raise any aspect of the jury instructions on appeal. See State v. Williams (1978), 51 Ohio St.2d 112. Because defendant raised no objection to the court's instructions,we review these assignments for plain error and will overrule these assignments unless we find that but for each of the claimed errors, the result of the trial would have been different. State v. Moreland (1990), 50 Ohio St.3d 58, 62. In deciding whether the result of trial would have been different had the court given aspects of the charge that defendant now suggests, we are mindful that jury instructions on specific charges must not be viewed in isolation from the other instructions given to the jury. Instead, we must consider whether the instructions as a whole properly and adequately encompassed the charged offenses. See State v. Burchfield (1993), 66 Ohio St.3d 261, 262, citing State v. Price (1979), 60 Ohio St.2d 136, paragraph four of the syllabus. A The ninth assignment of error is the court erred by charging the jury on aggravated burglary, by omitting any reference to the indictment's charge that defendant trespassed in an occupied structure when one of the victim's was present. The indictment charged defendant trespassed in an occupied structure, when Zibbie [sic] Robinson, not an accomplice of the offender, was present ***. The court charged the jury that in order to find defendant guilty of aggravated burglary, it must find defendant, by force, stealth, or deception, trespassed in an occupied structure with the purpose to commit a criminal offense. The court did not mention Robinson by name in its charge. Defendant claims this amounts to an improper amendment of the indictment. There is no chance that the jury, having been instructed as defendant now wishes, would have arrived at a different result. When viewed in their totality, the instructions properly informed the jury of the elements of aggravated burglary as applicable to this case, including the need to find the structure had been occupied at the time of the offense. Without expressing any opinion on whether the court's failure to instruct the jury specifically that it should find Zebbie Robinson had been present constituted error, we have no difficulty finding the jury would not have arrived at a different result had it been so instructed. The uncontracted evidence showed Zebbie Robinson, among others, had been present at the time of the offense. Any other finding would be contrary to the undisputed evidence, so the jury could not reasonably have made any other finding. The ninth assignment of error is overruled. B In his tenth assignment of error, defendant complains the court gave the jury instructions that were too generalized to pinpoint which offense he committed. He argues the court in- structed the jury on all charged offenses (aggravated burglary, aggravated robbery and kidnapping) against all four co-defendants in a way that would have confused the jury. He further argues the court compounded this error by giving a general aiding and abetting instruction without specifying to whom it was applicable. Defendant's argument suffers from the same infirmities he claims constitute error in the first place it is too general for us to find plain error. He gives us no specific reason for us to suppose the jury verdict would have been different had it been instructed as he now requests, and the evidence utterly fails to suggest such a conclusion. The evidence showed the offense had been premeditated, with co-defendants taking the precaution of wearing masks or hoods. As a joint conspirator in committing the burglary, robbery and kidnapping, defendant could absolutely be charged as a principal offender. Moreover, defendant's presence inside the house fully supports the aiding and abetting instruc- tion. The victim's testimony showed defendant and his co-defen- dants occupied different portions of the house at the same time, moving the victims into rooms, holding them in those rooms, and searching the house for money. This evidence suggests the gunmen in the house acted with complicity to commit the charged offenses, so the court's decision to charge the jury on aiding and abetting was entirely appropriate under the circumstances. The tenth assignment of error is overruled. C The eleventh assignment of error is that the court omitted an element of theft when defining aggravated robbery to the jury. Defendant complains the court erroneously told the jury it previously defined the terms property and deprived in its charge when, in fact, it failed to do so. He further argues the court failed to tell the jury that an element of robbery is the deprivation of property without the consent of the owner or a person authorized to give consent. We have held that terms of common usage in a criminal statute need not be defined by the court to the jury. See State v. Riggins (1986), 35 Ohio App.3d 1, 8. Of course, if the term is defined by the Revised Code, the court should limit its definition to that provided by the legislature in order to avoid unnecessary confusion and needless appellate challenges. State v. Williams (1988), 38 Ohio St.3d 346, 356, fn.14. While the terms property and deprive are defined by the Revised Code, we find them so synonymous with common usage that the court's failure to use the statutory definitions of those terms did not amount to error. Property is generally understood to mean something owned by someone. R.C. 2901.01(A)(10)(a) defines property as any property, real or personal, tangible or intangible, and any interest or license in such property. Likewise, deprive is generally understood to mean the act of taking something away. R.C. 2912.01(C)(1) defines deprive as to withhold the property of another permanently ***. These definitions are sufficiently similar in statutory and common usage that no discernable differ- ence exists between them. While the better practice would dictate the court use the statutory definition of those terms, we see no probability the jury's verdict would have been different had the exact statutory definitions been used. The eleventh assignment of error is overruled. D In his thirteenth assignment of error defendant claims the court erred by giving an improper definition of aiding and abetting. He maintains the court gave a general definition of aiding and abetting, but failed to instruct the jury that it must find he possessed the requisite mental state for each of the charged offenses. Pursuant to R.C. 2923.03(A)(2) no person, acting with the kind of culpability required for the commission of an offense, shall aid or abet another in committing the offense. As a general principle, the court must ensure that persons accused of complicity in committing an offense act with the same kind of culpability required as if the offender were the principal offender. See State v. Mabry (1982), 5 Ohio App.3d 13, 15-16. The court properly defined the requisite mental states required for aggravated robbery, felonious assault, aggravated burglary and kidnapping. The court then told the jury that, a person who knowingly and purposely aids, helps, assists, or associates himself with another in the commission of a crime is regarded as if he were the prinicipal offender and is just as guilty as if he personally performed every act constituting the offense. The court did not specifically instruct the jury as to the required element of culpability in its instructions, but its instructions,placed in context, sufficiently conveyed to the jury that it must find defendant acted with the required mental state, so we cannot say that plain error occurred. In State v. Samuel (May 9, 1991), Cuyahoga App. No. 58464, unreported, we construed a substantially similar instruction and found the court did not create a legal presumption of guilt absent a culpable mental state to commit the principal charged offenses. We stated, the trial court's instruction to the jury provided that a defendant must knowingly aid or assist another in the commission of the principal offense. The trial court's jury instruction with regard to aider and abettor did not create a legal presumption of guilt nor was the appellant prejudiced or denied a fair trial. Id. at 17. Moreover, having reviewed the jury instructions in conjunction with the evidence, we cannot say that the outcome of the trial would have been different had the court specifically instructed the jury that it must find defendant guilty of complicity only if he acted with the same mental state required for commission of the principal offense. The evidence tended to show all four co- defendants acted as principal offenders, not as aiders and abettors. All of them were armed and all of them moved about the house, moving victims from room to room and ransacking the premises. Given this evidence, we think it highly unlikely the jury would have been predisposed to finding defendant acted other than as a principal offender. The thirteenth assignment of error is overruled. VII In his twelfth assignment of error, defendant maintains the indictment contained vague and indefinite counts that failed to inform him of the nature and cause of the accusations against him. Defendant's argument is as vague as his own complaint against the indictment. He fails to show precisely how he lacked knowledge of the charges against him, saying only that the indictment charged in generalities and the bill of particulars simply listed the time and location of the charged offenses. At no time did defendant properly challenge the indictments by pretrial motion as permitted under Crim.R. 12(B)(2), therefore he has no complaint. We believe such a motion, if filed, would have been unavailing. The indict- ment may track the words of the applicable statute, provided the statute charges an offense and gives the accused notice of all the elements of the charged offense. See Crim.R. 7(B). The indictment used language tracking the pertinent criminal statutes. None of the counts of the indictment were vague, nor was there any indication at any time in the proceedings that defendant lacked knowledge of the charges against him. The bill of particulars filled in the exact time and date of the charged counts. Given this information, we cannot say the indictment was vague. The twelfth assignment of error is overruled. VII The fourteenth assignment of error is the court erred by overruling defendant's Crim.R. 29(A) motion for judgment of acquittal based on the victims' collective inability to identify him on the night of the offense. These are the same arguments we previously addressed and rejected in the context of assignments of error relating to eyewitness identification and hearsay testimony. Viewing the evidence in a light most favorable to the state, State v. Bridgeman (1978), 55 Ohio St.2d 261, we find the court did not err by denying defendant's motion for judgment of acquittal. The fourteenth assignment of error is overruled. IX In his fifteenth assignment of error, defendant complains the verdict is against the weight of the evidence. He again challenges the adequacy of the eyewitness identification, maintaining his rotund physical appearance (5' 6" in height; 270 pounds) would make it highly unlikely the victims would fail to mention this important physical characteristic to the police. Additionally, he challenges the victims' stated means of identifying him learning of his identity from information they obtained after the offense. The trier of fact is entitled to believe or disbelieve the testimony of the witnesses. State v. Antill (1964), 176 Ohio St. 61. We give great deference to the trier of fact because it is in the best position to assess the credibility of the witnesses and make reasoned judgments based on that position. Id. at 76. The identifications made in this case were not nearly as weak as defendant makes out to be. The daughter, who testified she knew defendant before the offense, made a convincing identification. The girlfriend likewise made a strong identification even though she did not have any previous acquiantance with defendant. The daughter said defendant carried a shotgun, and the owner, who had been detained with the daughter, corroborated this fact. Defendant argues these identifications were not credible because they were based in large part on information the witnesses received from persons shortly after the crime, thus implying the witnesses lacked personal knowledge of their assailants. However, both the daughter and the girlfriend denied learning defendant's identity from others, insisting their identifications came solely from their opportunity to view defendant the night of the offense. While it is true the son admitted he learned the identity of the assailants from other persons, the jury had two identifications which it could reasonably find to be credible. They jury obviously found the victims' testimony credible, and we refuse to impose our judgment over that of the jury. The fifteenth assignment of error is overruled. Judgment is affirmed. 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 Court of Common Pleas 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. PORTER, P.J. NAHRA, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .