COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72165 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : TIMOTHY WILSON : OPINION : Defendant-Appellant : Date of Announcement of Decision: DECEMBER 3, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-343646 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONALD JAMES, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: RICHARD AGOPIAN, ESQ. 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Timothy Wilson appeals from his convictions following a bench trial for murder (R.C. 2903.02) and attempted murder (R.C. 2923.02). Defendant contends he was entitled to be discharged under the speedy trial act; the trial court erred in denying a new trial for the State's failure to disclose exculpatory evidence; and the convictions were against the manifest weight of the evidence. We find no error and affirm. On July 16, 1996 around 10:15 pm, patrolman Michael White of the Cleveland Police Department and his partner received a call to respond to Euclid and Octavia Avenues where shots were fired. In route, they observed a grey Corsica automobile at 16801 Euclid Avenue with a male and female inside. The passenger, Vanessa Reed, had a gun shot wound to the chest and was dead. Officer White thought that the driver, Fred Robinson, was shot in the wrist as he was bleeding. There was a spent .12 gauge shotgun shell in the back of the car. The officers went back to the Marathon gas station at Euclid Avenue and Octavia where the shooting took place. One .12 gauge shotgun shell was found in the street and one was found in the parking lot. Officer White interviewed several people including the wounded driver of the Corsica, Freddie Robinson. Based on the information he received, he toured the area looking for a black male in a white Oldsmobile and also for a red and white Pontiac. -3- The surviving victim, Freddie Robinson, testified that he had taken Mrs. Reed out that evening. They were driving eastbound on Euclid Avenue when they heard gunshots. Robinson told Mrs. Reed to get down after the second shot. A third shot blew out the driver side window spraying glass into his arm and then striking Vanessa Reed in the left arm/chest area which led to her death. Damion Scott (17 years old), a friend of the defendant, testified that he had met up with the defendant earlier in the day to ride around in the defendant's new blue Cutlass automobile. Later on they met at the Marathon gas station and their friend Terrance was also there. The defendant and Damion then dropped Terrance off at home and returned to the station. According to Damion, upon returning to the station, the defendant's sister Timmeshia came running to the car screaming that someone had touched her on the behind. Apparently a group of boys at the station were harassing Timmeshia and her friends. Damion said that in response, the defendant got out of the car and took out a shotgun and approached the boys at the gas station. The defendant then asked which one of the boys had touched his sister. One of the cars, a white car, then sped out of the parking lot and turned onto Euclid Avenue. In response, the defendant fired two shots towards the car. He then fired three more shots at a red car that was parked at the gas pump after one of the people in the car chided the defendant that if you pull the gun you better use it. Afterwards, Damion said he ran to Terrance's apartment building where the defendant, his sister and her friends collected. At that -4- time, the defendant's sister said that someone had been shot, and they all dispersed. Tamika Smith, 15 years old, testified that she was at the Marathon gas station with Timmeshia and Shameka. She said that three cars filled with boys pulled into the gas station. She recalled one car was beige, one was burgundy and she couldn't remember the color of the third car. The boys were trying to talk with them. One of the boys talking to Timmeshia touched Timmeshia on the behind. Tamika stated that someone went and got the defendant and that the defendant walked over with a gun. According to Tamika, the gun was a little gun. Soon as she saw the gun she ran for the defendant's car to seek cover. All three girls got into the back seat of the car which one of the boys began ramming with his car. Tamika then ran to a nearby bar where the boys followed her and beat her up. Detective Hasan testified that based on the interviews conducted of witnesses on the scene he was looking for a black male driving a Cadillac. Detective Gray testified that he received a telephone call in which the caller identified the defendant as the shooter. Detective Rowley of the forensic unit testified that all the shells collected from the scene were fired from the same shotgun. Detective Wilmore Larry testified that he interviewed a Vendilia Germany who lived across the street from the gas station. She told him that the shooter was a tall black man in a burgundy Pontiac which was blocked by a darker car and that he was shooting -5- at a beige Oldsmobile. In spite of Germany's statement, the detective still believed that the defendant was the correct suspect as no one else corroborated her version of events. The State rested. The defendant then presented his case. Detective Hasan admitted that he interviewed a Yul Clark as a witness who testified he saw a burgundy Pontiac traveling down Euclid Avenue at a high rate of speed. The driver was described as a large black male in his early 30's with a small Afro. Dennis Murphy was a private investigator hired by defense counsel who testified that Tamika Smith told him that she did not see anyone with a gun. Reginald Humphrey was at the Laundromat next to the Marathon station when the shooting occurred. He testified that he saw a young boy about 13 or 14 years old, with a short haircut and T- shirt shooting a 9 millimeter gun across the street. He then saw a beige or white car pull into the Laundromat and the man pointed at the boy and told him, shoot him, do it and the boy kept shooting. Once the gun was empty the boy jumped into the white car and they sped down Euclid. Ten minutes later he saw a red and white Cadillac pull into the parking lot and two young boys came out from behind the Marathon station. The driver of the car was an older man and told the boys to get their a--es in the car. The boys got in and the car sped off. Humphrey stated that he did not see defendant at the scene at all. -6- The defendant testified on his own behalf and claimed that he did approach a group of guys regarding the fact that one of them touched his sister's behind. He started arguing with an older man sitting in a burgundy car who then got out of the car and pulled out a shotgun. The defendant said that he ran towards the pumps and heard gunshots. He then ran for his car and since he could not make it, he just kept running. He claimed that he heard a total of four gunshots. On cross-examination, the defendant stated that he never saw anyone with a nine millimeter gun and that he heard that the guys that were after him stole his car and burned it. Vendilia Germany testified on defendant's behalf after a bench warrant was served on her. She lived across from the Marathon station and said she was sitting outside the building when she watched a white car pull out from the gas station and that shots were fired from the white car. This contradicted the statement she gave the police in which she said the shooter was in a burgundy car. Based on the above evidence the trial court found the defendant guilty as charged and sentenced him to 15 years to life on the murder count with an additional three years for the firearm specification and seven years on the aggravated murder count to run concurrently. Defendant timely appeals. We will address defendant's assignments of error in the order presented. I. OHIO REVISED CODE S2945.71 AND 2945.73, OPERATING AS THE STATUTORY ENFORCEMENT MECHANISM OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION -7- AND ARTICLE I, S10 OF THE OHIO CONSTITUTION, MANDATE THE DISMISSAL OF THE CHARGES PENDING AGAINST THE DEFENDANT AS A RESULT OF THE STATE'S DENIAL OF HIS RIGHT TO A SPEEDY TRIAL. R.C. 2945.71(C)(2) provides that a person against whom a felony charge is pending shall be brought to trial within two hundred seventy days after his arrest. Furthermore, R.C. 2945.73(B) provides, in pertinent part, that a person charged with an offense shall be discharged if not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code. Pursuant to State v. Pachay (1980), 64 Ohio St.2d 218, the speedy trial statute must be strictly construed in favor of the accused. State v. Collura (1991), 72 Ohio App.3d 364, 367. For purposes of computing time under R.C. 2945.71(C)(2), 2945.71(E) states that each day during which the accused is held in jail in lieu of bail on the pending charge is counted as three days. In other words, a felony defendant in Ohio must be tried within ninety days if incarcerated on the pending charge or within two hundred seventy days if on bail. State v. Coleman (1989), 45 Ohio St.3d 298, 304. If the defendant is in jail on a separate unrelated case, the three for one provision does not apply. R.C. 2945.72(A); State v. Coleman, supra. In the instant case, initially the defendant, along with the murder and attempted murder charges of the case herein, was also being held on a prior unrelated drug trafficking charge. Since he was being held in jail upon unrelated charges in two or more criminal cases, the court and attorneys involved thought the three for one provision did not apply. R.C. 2945.72(A). It was not -8- until after the 90 day time frame had expired, that it was discovered that the court of common pleas was without jurisdiction over the drug trafficking offense because the defendant was a juvenile and the juvenile court had not bound him over. Therefore, that case was dismissed and technically the defendant had only been in jail for one criminal case instead of two since the drug case was a nullity. State v. Wilson (1995), 73 Ohio St.3d 40, 44. In spite of this, however, we find that defendant's speedy trial rights were not violated, as pursuant to R.C. 2945.72(D), the speedy trial time is extended for Any period of delay occasioned by the neglect or improper act of the accused. In this case, the trial court found from the testimony that it was the defendant himself who initially provided to the police [in the drug trafficking case] the erroneous information that he was an adult, with the incorrect birth date of December 21, 1977" rather than 1978. The defendant's father testified that he brought the defendant's birth certificate to the police station after he was arrested on the drug charge and defendant was released to his mother's custody. Nevertheless,the court found that the initial misinformation formed the basis for the defendant being processed as an adult rather than a juvenile. Furthermore, the defendant failed to show up for his arraignment on the drug charge, where he could have corrected the misinformation. When he was finally arraigned on September 18, 1996, he still made no effort to correct the record. It was not until his attorney in the murder case discovered, well -9- past the 90 day time limit, that the birth date information on the drug case was incorrect, and the error was brought to the court's attention in the form of a motion to dismiss for violation of the speedy trial statute. Under these circumstances, we agree with the trial court's finding that: It is not disputed that, but for the mistaken belief that the defendant was in jail on two separate cases, and thus that time was running one-for-one, the murder case would have been set for trial before expiration of the ninety days. It was the misinformation defendant himself gave the police as to his age that led his counsel in the murder case, as well as the prosecuting attorney and the court, to conclude that a trial date of December 16 was within the statutory period. This court has no intention of allowing a defendant to profit by his own misrepresentation to the police; in particular, the court will not permit the defendant to win dismissal for want of a speedy trial, when the delay in setting his case for trial stems ultimately from his own improper act in telling the police, falsely, that he was eighteen years of age. [Trial court opinion, January 8, 1997 at 10-11]. As this Court recently held in State v. Nievas (1997), 121 Ohio App.3d 451, 456, Under the invited error doctrine, a party will not be permitted to take advantage of an error which he himself, invited or induced the trial court to make. Therefore, the trial court did not err in overruling the defendant's motion to dismiss. Defendant's Assignment of Error I is overruled. -10- II. THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON FAILURE OF THE STATE OF OHIO TO DISCLOSE EXCULPATORY EVIDENCE PRIOR TO TRIAL. Defendant argues the trial court erred in denying his motion for a new trial as one of the detectives on the case engaged in misconduct by not disclosing his report which contained exculpatory evidence. Specifically, during cross examination, Detective Larry disclosed that he had interviewed several people but his report had not been made available to the prosecutor. This report, defense counsel later learned, contained the statement of Reginald Humphrey in which he stated he saw someone other than the defendant with the gun. This assignment of error has no merit. Crim.R. 33 states in pertinent part: (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights. (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial; (2) Misconduct of the jury, prosecuting attorney, or the witnesses of the state; (3) Accident or surprise which ordinary prudence could not have guarded against **** Defendant contends he was entitled to a new trial under all three of the above. A trial court's decision to grant or deny a motion for new trial is not reversible upon appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of -11- discretion exists where the record shows that the court's attitude was unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413; State v. Adams (1980), 62 Ohio St.2d 151, 157. The discretionary decision to grant a new trial is an extraordinary measure which should be used only when the evidence presented weighs heavily in favor of the moving party. State v. Otten (1986), 33 Ohio App.3d 339, 340. Although Humphrey's report was not disclosed to either defense counsel or the prosecutor, there was no evidence it was intentionallywithheld. The court recessed in order to permit the detective to retrieve the report. Defense counsel was then permitted an in camera inspection of the report in which he found the exculpatory statement of Reginald Humphrey. Defense counsel did not ask for a continuance, but instead he had Humphrey subpoenaed to testify. Humphrey then appeared in court the next day and gave his version of what he witnessed. He claimed the defendant was not the shooter, but that a 13 or 14 year old boy was the shooter and that the shooter had a nine millimeter handgun and not a shotgun. Based on the above sequence of events, there was no evidence that the defendant was prevented from having a fair trial under Crim.R. 33(A)(1); there was no evidence that the failure to disclose the report constituted misconduct under (A)(2), but appears to have been an oversight; and apparently no accident or surprise resulted under (A)(3) as counsel did not move for a continuance, but was able to proceed with trial. Therefore, we -12- find no abuse of discretion by the trial court in denying the defendant's motion for a new trial. Defendant's Assignment of Error II is overruled. III. R.C. 2151.26 WHICH PROVIDES FOR JUVENILE BINDOVER WITHOUT AN AMENABILITY DETERMINATION IS UNCONSTITUTIONAL. The defendant's juvenile bindover hearing was not unconstitutional. Pursuant to Juv. R. 30(C) an amenability hearing is only required in discretionary transfers to juvenile court. Pursuant to Juv.R. 30(B) an amenability hearing is not required for mandatory transfers. As held by the court in State v. Ramey (May 22, 1998), Montgomery App. No. 16442, unreported at 5: The full investigation authorized by Division (C) of Juv.R. 30, which includes the amenability determination, cannot occur when transfer is mandated by statute. Then the transfer provisions of Division (B) apply. R.C. 2151.26(B) is not in conflict with those provisions. Pursuant to R.C. 2151.26, the defendant being the age of seventeen years old and committing a murder is subject to a mandatory bindover. There is no conflict between the Juvenile Rules and the applicable statute. Defendant's Assignment of Error III is overruled. IV. THE GUILTY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. When the argument is made that the conviction is against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. -13- As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. 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 inferences, considers the credibility of witnesses and determines 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 be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). We find that the defendant's conviction was not against the manifest weight of the evidence. Damion Scott testified the defendant was at the Marathon gas station and that the defendant fired a shotgun in the direction of Euclid Avenue. This is consistent with where Detective Hasan testified he took a lead shotgun shell from the car of the living victim, Freddie Robinson, -14- who was in the car with the decedent traveling down Euclid Avenue. Det. Hasan also found several empty shotgun shells at the gas station. The surviving victim, Freddie Robinson, testified that a gunshot went through the car window and killed his girlfriend as he drove past the Marathon gas station. Although there was inconsistent testimony from the defense witnesses, the resolution of their credibility was for the finder of fact, the trial court. Defendant's Assignment of Error IV is overruled. Judgment affirmed. -15- 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. DYKE, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 .