COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72541 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DARRICK JOHNSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-340600. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Arthur A. Elkins, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: James P. McGowan, Esq. 11510 Buckeye Road Cleveland, OH 44104 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Darrick Johnson appeals his conviction of two counts of aggravated murder, count one with prior calculation and design ; and count two while committing or attempting to -2- commit, or fleeing immediately after or attempting to commit aggravated burglary and/or aggravated robbery ; each count containing a felony murder specification and firearm specification. Finding no reversible error in the proceedings below, we affirm. The facts giving rise to this appeal are as follows. During the early morning hours of January 15, 1996, Alaric Gamble was shot and killed. On July 11, 1996, appellant was charged with this murder in a four-count indictment. Counts one and two charged appellant with aggravated murder (R.C. 2903.01), count three with aggravated burglary (R.C. 2911.11), and count four with aggravated robbery (R.C. 2911.01). A jury trial commenced on February 6, 1997. The state of Ohio presented sixteen witnesses to make its case. First, the state called employees of the Cuyahoga County Coroner's Office. Heather Nielsen-Raaf, M.D., forensic pathologist, testified that upon her examination of the victim, Alaric Gamble, she concluded that his death was a homicide caused by four gunshot wounds to his head and neck and a fifth gunshot wound in his back. Sharon Rosenberg, of the Trace Evidence Department, performed the examination of the victim's hands and clothing for gunshot residue. She concluded that the tests on the victim's hands were negative and the test on the victim's clothing indicated that the gun was greater than three feet away from the victim at firing. The state then called Ebony Smith ( Ebony ) to relate her version of the events of that evening. Ebony testified that she -3- knew both appellant and the victim. Appellant had been her friend since seventh grade and she knew the victim for nine years. She said that on the evening of January 14, 1996, she was at 14012 Ardenall Road in East Cleveland, Ohio, the home of her aunt Carol Smith ( Smith ) and Smith's husband, Michael Gamble. In the house that night were the victim, Alaric Gamble (the nephew of Michael Gamble); Carol Smith; Michael Gamble's three young children; Ebony's two year-old daughter; Khatina Wright; and Rick (a friend). Late in the evening she and Alaric had a verbal disagreement over some music and a phone conversation with Alaric's friend. Alaric punched her. In response, she called her mother and talked to her sister. Then, she paged her friend John Finley ( Finley ) and, when he did not return the call, she paged appellant using code 187 which she knows from rap songs means murder. When appellant responded to her page, she told him that she had a fight with Alaric and wanted a ride home. During the phone call, Finley spoke to her and she gave him the Ardenall Road address. About ten minutes later she saw the car arrive and she told Alaric that she was leaving. She said Alaric grabbed her and Khatina and told them that they weren't going anywhere. She heard someone kicking at the front door, she broke away from Alaric and opened it. Alaric was wearing a Nautica jacket, jeans, Cleveland Indians shirt and three rings, had his pager and the handset of the portable phone, and ran out of the back door. As she opened the front door, Ebony saw appellant, who was wearing a three-quarter length black leather coat and black boots -4- and a hat, run in, run through the house with his arm outstretched but covered, and run out the back door chasing Alaric. She saw some of the others of the group run around the back of the house. Ebony, her baby and Khatina left the house and got into Finley's car. The men came back and got into the car. Finley was the driver, Cooke sat in the middle front seat and appellant got in the front passenger seat. Charles Finley, Stewart, Khatina, Ebony and her baby were seated in the back seat. During the ride, Ebony saw appellant holding a little black gun which he handed to Cooke. Appellant advised her to say they hadn't seen them that night. Finley had Alaric's pager and said he got his souvenir. Ebony saw that Stewart had Alaric's rings. Finley proceeded to drop off the individuals at their houses. First, he dropped off Stewart, then both Cooke and appellant, and finally Charles Finley. Finley then drove back to appellant's house to get some money. Appellant gave Finley the boots he wore that evening. Finley told Ebony that he had to get rid of his Nike tennis shoes too. They went to Khatina's boyfriend's house. Eventually that morning, Ebony, her baby and Finley went to the Cee Ray Motel where they stayed until later in the morning when they received a page from Khatina. At the Cee Ray Motel, Finley put the boots into the dumpster. Ebony, the baby and Finley went back to Khatina's boyfriend's place where Ebony remained with Khatina until the police arrived. Ultimately, Ebony was taken to the East Cleveland Police Station where over the next few days she gave several statements to the police which were not true. She was indicted on aggravated murder and robbery -5- charges for her involvement in the murder of Alaric Gamble but pursuant to a plea agreement she entered a plea to involuntary manslaughter. Next, Finley testified as to the events of the night of the murder as follows. On the evening of January 14, he was with appellant Cook, his cousin Charles Finley and Stewart. That night the group was using Finley's rented blue, four-door Ford Contour. The group started out at the Coliseum Dance Club in Euclid, but they got ejected due to a fight. Finley noticed a box of bullets in the glove box of the car. As they were leaving the Coliseum parking lot, appellant was hanging out the passenger window and Finley heard someone fire a gun. He drove the group to Club 1148 in the Flats but he couldn't get into the Club because he was wearing tennis shoes. Finley planned to switch shoes but both he and appellant received a page indicating 187, which in rap songs means murder . Initially, Finley ignored his page but appellant responded by calling Ebony. Finley talked to her and she gave him the address in East Cleveland. He drove fast and they arrived at the East Cleveland house from the Flats in ten to fifteen minutes. Finley pulled the car up to the curb. Deitrick, Cooke and appellant went onto the porch; Stewart was on the sidewalk; Finley and Charles Finley remained in the car. Finley heard somebody say that the guy was choking Ebony. He saw appellant kick the door twice and someone inside the house opened the door. Finley and Stewart ran through the backyards and across approximately three streets chasing the victim. Finley stated that Stewart caught up -6- with the victim who, apparently believing the situation to be a robbery, begged them to take his coat and pager. Stewart took the victim's rings. When Finley saw appellant come towards them holding a gun, he ran. As he was running, Finley heard a shot and saw the victim put his hands to his face and run. Finley heard a couple more shots. He dropped the victim's jacket as he ran. When Finley returned to the car, Charles Finley, Ebony, Khatina and the baby were already in the car. Next, Stewart and Deitrick returned. Finally, appellant arrived. Finley gave Stewart the pager. Finley drove individuals to their homes. First, he dropped off Stewart, then both Cooke and appellant, and finally Charles Finley. At that point, Finley returned to appellant's house to get some money. Appellant gave him the black boots appellant had worn that night with the directive for him to get rid of them. Finley then drove to Khatina's boyfriend's house where they spent about an hour. Finley, Ebony and her baby spent the remaining early morning hours at the Cee Ray Motel where Finley put the appellant's boots into a dumpster. Later that morning, Finley dropped Ebony at Khatina's boyfriend's house and Finley went to his girlfriend's house. Finley testified that the night of the murder the only person that he saw with a gun was appellant. On cross-examination, Finley denied having seen the gun prior to the shooting that evening. He contended that he did not have the gun. He admitted that in some rap songs 187 refers to murder. Finley said that Ebony told him that she needed a ride -7- home because Alaric Gamble had assaulted her. Finley admitted that he kicked the victim as he was down on his knees. Ultimately, Finley was charged with aggravated murder but pled guilty to involuntary manslaughter in the commission of a felony and robbery. Cooke was the next member of the group to testify. Cooke stated that he pled guilty to involuntary manslaughter in this matter in exchange for his truthful testimony. Cooke's version of the events is as follows. On the night of January 14, the group went to the Coliseum where Stewart got into an altercation. As they were leaving the Coliseum, Finley handed a little black automatic gun to appellant. Some guys were blocking Finley's car with their car, so appellant hung out the passenger window and fired a couple of shots into the air. The guys moved out of the way. Then the group proceeded to Club 1148 in the Flats. Cooke said Finley wanted to borrow his boots to wear into Club 1148 but they never exchanged shoes. Cooke testified that Finley and appellant each received a page so Finley drove the group to a phone booth in the Flats to respond. After the phone conversation, Finley and appellant told the group they were going to Ebony's in East Cleveland. When they got to 14012 Ardenall Road, he and appellant went onto the porch, Finley and Stewart were in the driveway. Appellant kicked the door and Ebony opened it. Appellant ran through the house and out the back. Cooke ran up the driveway but he fell and he went back toward the car where he saw Charles Finley who was still in the car. Ebony, Khatina and the baby got into the -8- car. After they were all assembled back in the car Finley passed something to appellant. Finley told Cooke that he could have the weapon; appellant then gave him the gun. The state requested Cooke be declared a hostile witness because Cooke's testimony was inconsistent with his previous statements in which he indicated once we got into the car, [appellant] handed me the gun and said for me to get rid of it. Stewart asked [appellant] why he `popped' him. Appellant said he was `taking care of business.' Cooke further testified that later he gave the gun back to appellant when he asked for it. On cross-examination, Cooke said that he was afraid of Finley when he made his original statement but Detective Johnstone told him his bond was dependent on his making a statement. The state's next witness was Stewart who pled guilty to involuntary manslaughter as a juvenile in this matter. Stewart said he and appellant were good friends and Ebony was his girlfriend until about two weeks prior to the murder; he knew the others in the group for about two years. Stewart's version of the events is as follows. On January 14, Finley drove the group to a party at the Coliseum. That night Finley was wearing a black coat, blue pants and brown and black boots. Appellant was wearing a three-quarter length black leather coat, jeans and black boots. The group left the Coliseum because he got into a fight. However, as they got into the car to leave appellant started shooting at some guys with a small black gun which appellant got from Finley. -9- The group went to Club 1148 in the Flats but they weren't able to get in because they were under twenty-one. Both appellant and Finley got paged. Finley talked on the phone. Although Stewart did not want to pick up Ebony, Finley drove fast to the East Cleveland address. At 14012 Ardenall Road, Finley pulled the car up in front of the house. Everyone got out of the car except Charles Finley. At first Stewart was on the porch with appellant, Finley and Cooke. Appellant kicked the door three or four times. When Stewart saw the victim grab the girls, he ran toward the back of the house with Cooke and Finley. At that time he did not see appellant. During the chase of the victim, Finley seemed to be first. When Stewart caught up with the victim, the victim was on his knees and Finley was kicking him. Finley took the victim's rings and pager. Cooke was on the scene but appellant was not yet there. Stewart said Cooke and Finley left when appellant came on the scene from about three houses down. The victim was staggering away when appellant ran out of the yard and shot him in the face. Stewart heard more shots as he ran back toward the car. Appellant was the last person to return to the car and he got in the front passenger seat. Finley said he had a souvenir, the victim's pager. Stewart admitted he threw the rings away the next morning. Afterward, the first stop Finley made was to drop Stewart off. During the course of these events, Stewart stated that he only saw the gun once when appellant gave it to Cooke after he got back into the car. Stewart -10- said that later while in the car, appellant said f--- that nigger *** he dead now. Stewart testified that when he made his original statement to police on January 18, although he implicated appellant, Finley, Charles Finley and himself, he denied knowing the shooter. In his second statement to the police, Stewart acknowledged that it was appellant who shot the victim. On cross-examination, Stewart admitted that the gun originally came from Finley. Next, Charles Finley, cousin of Finley, testified as to the events as follows. Charles Finley met appellant though his cousin Finley. He knew the males in the group but Charles Finley did not know Ebony. That night, the group went to the Coliseum but, after an argument, they left for the 1148 Club. While leaving the Coliseum, when some other guys tried to block their car, Finley tried to swerve the car; Charles Finley heard gunshots. Charles Finley testified that appellant, Cooke and Stewart each had the small black gun at some point during the evening. Bullets for the gun were on the floor of the car in the back seat. The group couldn't get into Club 1148 with tennis shoes so Finley and Cooke were going to switch shoes but they didn't make the exchange. After appellant and Finley stopped to use a pay phone, the group went to the house in East Cleveland where Ebony was. When the group arrived at the house at 14012 Ardenall Road, everyone else got out of the car. Charles Finley said appellant went up to the porch; Finley was on the stairs; Stewart and Cooke were both in the -11- driveway. Appellant banged on the door, Charles Finley saw a man inside the house holding the girls by the arms. One girl opened the door and the man took off. All at once everyone started running. Charles Finley said he drove the car around the corner because he thought the man came out of the house with a gun. When Charles Finley returned to the house, the others all came back to the car. That night, Cooke and appellant each had the gun. While they were in the car Stewart also handled the gun. Finley had the man's pager when he returned to the car. Charles Finley testified that he did not know that the man was murdered until a day or so later. On cross-examination, Charles Finley said he did not see Finley with the gun. He did not know who shot the gun. All four of the others ran after the victim who was the man who was holding the two females. Smith testified as follows. Smith, her husband Michael Gamble, and their three children lived at 14012 Ardenall Road. The victim of the murder, Alaric Gamble, was her husband's nephew and Ebony is her niece. Both Ebony and Alaric were babysitters for her children. On the night of January 14, Alaric was babysitting the three children. Ebony, Ebony's daughter, Ebony's friend Khatina, and Rick (a friend), were also at the house. When Smith and her husband arrived home in the early morning hours, they found their door unlocked, her oldest child awake and crying, the phone handset gone and both Alaric and Ebony missing. She and her husband tried to find everyone but finally called the police. The next day, she -12- found out that Alaric was murdered. A few days later, she noticed the box of bullets sitting on the car in the driveway and notified the police. Chantalli Gamble, sister of the victim, testified that her brother called that night. Later, her uncle, Michael Gamble, came to her house and said Alaric was missing. She dressed and went out with Gamble to look for Alaric. They found out Alaric was murdered when they came to the location of the murder on Potomac. She knew that Alaric had been wearing three rings and he owned a pager. These items were not recovered with his body. Peter Gorski, an employee of the Juvenile Court Detention Center, testified that on March 5, 1996 he was notified of an escape by two juveniles. Gorski identified one of the escapees as appellant. Appellant was recaptured about one and one-half months later. Michael Roberts of the Bureau of Criminal Identification and Investigation State Crime Lab of the State Attorney General's Office, a forensic scientist in the firearm department, tested appellant's black leather coat for gunshot residue but found none. He was able to identify a recovered bullet as the same brand and caliber as the box of live ammunition taken from the scene. Detective John Gioitta of the East Cleveland Police Department testified that he became involved in the investigation of this murder on the morning of January 15 and assisted Detective Johnstone. Detective Gioitta took the bootprint photo and he recovered the jacket, the handset of the cordless phone, a glove -13- and the box of 22 caliber rounds. Detective Gioitta said he first saw appellant on January 23 with Detectives Miklovich and Johnstone. He advised appellant of his Miranda rights. Appellant was sitting in the Detective Bureau waiting for his mother to arrive. At that time, Stewart was being interviewed in another room. Gioitta took appellant's jacket and two pagers from him. The interview with Stewart ended about 4:00 p.m. Appellant spontaneously stated to him that Cooke had the murder weapon. Gioitta once again advised appellant of his Miranda rights and advised appellant not to speak until his mother arrived; however, appellant proceeded to ask questions regarding the procedures of juvenile bind-over and the amount of time to be served for murder. Appellant appeared nervous. Then, spontaneously, appellant admitted to being the shooter. Detective Gioitta advised appellant of his Miranda rights for the third time. No formal interview process or questioning took place and no statement of appellant was reduced to writing because appellant's mother did not show up. Appellant was kept in the Detective Bureau and then transported to the Juvenile Detention Center. On cross-examination, Detective Gioitta acknowledged that appellant's statement taken on January 18, signed by appellant and his mother, gave no indication that appellant shot the victim. Detective Gioitta said that both he and Detective Miklovich witnessed appellant make the January 18 statement. Detective Gioitta admitted that appellant was kept in the Detective Bureau from approximately three o'clock in the afternoon until after -14- eleven o'clock in the evening without either his parent or an attorney. Next, Detective Miklovich of the East Cleveland Police Department testified that he worked the crime scene with Detective Johnstone who made the diagram and took the measurements. Detective Miklovich said that the scene was secured and seven spent casings were located. The area where the body was found was well- illuminated. The body was found with several gunshot wounds to the head. On January 23, Detective Miklovich approached appellant and his mother to take them to the police station because of inconsistencies in the appellant's statement. Appellant accompanied Detective Miklovich to the police station without his mother who went to work and indicated she would arrive later. Initially, appellant was given a seat in the Detective Bureau but he was moved to a small interview room. Numerous attempts were made to contact his mother and secure her attendance. Although no questions were posed to appellant, he asked questions of the detectives. During this time appellant admitted to shooting Alaric Gamble. Detective Chris Grooms of the City of Cleveland Police Department ROPE (Repeat Offender Program Enforcement) Unit testified that he was called upon to locate appellant because a fugitive had escaped from the Cuyahoga County Juvenile Detention Center. He conducted an investigation and surveillence. They received a tip from Crimestoppers on March 4 but failed to apprehend appellant. However, on March 16 they received another -15- tip. The police set up a perimeter at the location, the SWAT team was put into place and appellant was apprehended. The state then called Bradley Brown, a witness to the events that took place on January 15. Brown who resides at 13909 Potomac testified that he first heard a gunshot and heard someone say yea, right. He looked out the upstairs window, he saw two men in the street and saw the victim flinch when he was shot. Brown saw the victim shot once again, then shot in the back and finally, when the victim was shot at the neck, he dropped to the ground. Brown described the shooter as wearing a big, loose dark coat, blue jeans, dark boots and a hat which prevented Brown from getting a good view of his face. Although the street was a somewhat dark area, it was lit up pretty well where the shooter came across the street. Brown watched as the shooter stood a minute, turned, jumped over the snow pile and ran back the direction from which he came. He saw the shooter stick the gun into his right pocket. He only saw the victim and the shooter. Brown came downstairs, looked outside, saw two guys standing by the stop sign but he didn't see the shooter so he went over to the victim who was lying face-down. Then police pulled up. The state's final witness was Detective Vincent Johnstone a sixteen-year veteran of the East Cleveland Police Department who arrived at the scene of the murder, 13909 Potomac, after it had been roped off. Detective Johnstone processed the scene. The body of the victim was still on-site covered by a sheet. Money, bracelet and an earring were recovered from the body of the victim. -16- No rings, pager or winter jacket were with the victim. The victim's Nautica jacket was recovered later. Seven spent casings were recovered at the scene. He testified that the area appeared well-lit. At the close of the state's case, the defense moved for acquittal pursuant to Crim.R. 29 which was denied. The defense rested its case and renewed its motion for acquittal which was again denied. On February 20, 1997, the jury returned a verdict finding appellant guilty of both counts of aggravated murder but not guilty as to the remaining counts in the indictment. Appellant was sentenced to a term of twenty full years to life to be served concurrently on counts one and two. Appellant with leave to file this delayed appeal advances three assignments of error for our review. I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF AGGRAVATED MURDER, WHERE THE ELEMENTS OF PRIOR CALCULATION AND DESIGN WERE NOT PROVEN BEYOND A REASONABLE DOUBT. II. THE DEFENDANT'S GUILTY VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. III. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE. Appellant's first and third assignments of error having a common basis in law and fact shall be considered together. In his first assigned error, appellant contends that the evidence presented was insufficient to show that appellant planned to kill the victim prior to the actual incident; therefore, appellant -17- asserts that even when viewing the evidence in a light most favorable to the state, the state failed to prove the required element of the charge of aggravated murder, prior calculation and design. In his third assigned error, appellant contends that the state presented insufficient evidence that appellant acted with prior calculation and design or even committed the act at all. It is well established that an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259 following Jackson v. Virginia (1979), 443 U.S. 307. A motion for acquittal is governed by Crim.R. 29(A), which states in pertinent part: the court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds -18- can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. The essential elements of aggravated murder in R.C. 2903.01 as charged against appellant were that a person (1) purposefully, (2) with prior calculation and design, (3) causes the death of another. Appellant contends that the state presented insufficient evidence to prove the element of prior calculation and design beyond a reasonable doubt. The statute does not define prior calculation and design. In State v. Cotton (1978), 56 Ohio St.2d 8 at paragraph three of the syllabus, the supreme court held: where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of 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. It is not required that a prolonged thought process be present. Even when a defendant only has instants to design the death of the victim, it will be sufficient. State v. Bailey (1992), 90 Ohio App.3d 58, 73. In State v. Taylor (1997), 78 Ohio St. 3d 15, 18-20, our supreme court reviewed the history and meaning of the phrase prior calculation and design concluding that based upon a review of the Ohio case law dealing with the issue, that it is not possible to formulate a bright-line test that emphatically distinguishes between the presence or absence of `prior calculation and design.' Each case -19- turns on the particular facts and evidence presented at trial. State v. Taylor, supra at 20. In State v. Jenkins (1976), 48 Ohio App.2d 102, the court of appeals found three factors important in determining whether prior calculation and design exists: (1) Did the accused and the victim know each other and, if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? (3) Was the act drawn out or an almost instantaneous eruption of events? See, also, State v. Taylor, supra at 20. At trial, the evidence presented by the state showed that appellant was summoned to the victim's location by Ebony, who alleged that the victim had assaulted her and who used the code for murder 187 as used in rap songs. Appellant was armed with the small black gun which was loaded and had been used earlier in the evening. When the group arrived at the house, appellant ran up onto the porch and kicked the door. As the door of the house was opened, appellant ran through the house with his arm outstretched and he chased the victim out the back door. When appellant reached the victim, the victim had already given up his rings and jacket and had been kicked by Finley. Despite the fact that the victim was not putting up a fight, appellant shot the victim in the head. As the victim attempted to stumble away, appellant shot him four more times in the head, neck and back. In our assessment of whether sufficient evidence of prior calculation and design are present we consider the factors as put -20- forth in Jenkins. We find evidence existed to show that appellant knew who the victim was, he used the loaded gun which he had used earlier in the evening, he chased the victim to the spot where the victim could no longer get away and, then, he killed the victim with multiple gunshots to his head, neck and back. Consequently, when we review this evidence in a light most favorable to the state, we find that this evidence, if believed, is sufficient to convince a rational trier of fact that the state had proven beyond a reasonable doubt the required element of prior calculation and design. Accordingly, upon a review of the facts and circumstances surrounding the death of the victim, Alaric Gamble, we find the evidence presented reveals the presence of sufficient time and opportunity for appellant to have planned the act of homicide and find the circumstances surrounding the homicide are sufficient to show a scheme designed to implement the calculated decision to kill the victim. Therefore, the evidence presented by the state was sufficient to prove the element of the charge of aggravated murder, prior calculation and design, beyond a reasonable doubt. We find the trial court did not err when it denied appellant's motion for acquittal pursuant to Crim.R. 29. Appellant's first and third assignments of error are without merit. In his second assigned error, appellant contends that his conviction was against the manifest weight of the evidence. Specifically, appellant asserts that inconsistencies existed in the testimony of the witnesses and in the verdicts. Appellant -21- complains the testimony is inconsistent as to which assailant, Finley or Stewart, caught up to the victim first and as to whether appellant handed the murder weapon to Cooke, or whether Finley first handed the gun to appellant and then appellant handed it to Cooke. Appellant contends that due to these inconsistencies in the testimony of the witnesses presented, no reasonable jury could have found that the state proved its case beyond a reasonable doubt. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: 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 ***. See Tibbs v. Florida (1982), 457 U.S. 31. Martin, supra at 175. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines and may be taken into account by the reviewing court: 1) the reviewing court is not required to accept as true the incredible ***; 2) whether the evidence is uncontradicted ***; 3) whether a witness was impeached ***; 4) what was not proved ***; 5) the certainty of the evidence ***; -22- 6) the reliability of the evidence ***; 7) whether a witness' testimony is self-serving ***; and 8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, 14. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The trier of fact is entitled to believe or disbelieve the testimony of all witnesses whether the prosecution or the defense. State v. Antill (1964), 176 Ohio St. 61. Appellant asserts that because Cooke changed his testimony at trial by stating that upon his return to the car Finley was in possession of the gun and Finley gave the gun to appellant, who then, in turn, gave the gun to Cook, such a contradiction in the evidence existed that a reasonable jury could not have found beyond a reasonable doubt appellant to have been the trigger man in this murder. Thus, appellant contends that the verdict was against the manifest weight of the evidence. We do not agree. The uncontradicted evidence presented at trial by the state reveals that on the evening of January 14, 1996, Finley drove his cousin (Charles Finley) and three friends (Cooke, Stewart and appellant) to the Coliseum Club where after an altercation they attempted to leave. Because some other men were blocking their car in the parking lot, appellant hung out of the passenger window and, using the small black gun, shot warning shots into the air to disperse the crowd. They headed for Club 1148 in the Flats but -23- they were denied entry. Although a discussion took place regarding the switching of shoes between Finley and Cooke, because Finley had on Nike tennis shoes and Cooke was wearing boots, the shoe switch did not take place. While in the Flats, first Finley received a page, then appellant received a page indicating the code 187 which those involved recognized from rap songs as a code for murder. The group drove to a phone booth where appellant responded to the page by calling Ebony. Ebony spoke to appellant and Finley and summoned the men to her aunt's house at 14012 Ardenall Road alleging that Alaric Gamble assaulted her. Finley sped from the Flats to the address in East Cleveland. Upon arrival at 14012 Ardenall Road, all the men except Charles Finley jumped out of the car. Appellant ran up to the porch and kicked the door. Alaric apparently pulled Ebony and Khatina toward the back of the house, but Ebony broke loose and opened the front door. Alaric fled out the back door, appellant wearing a three-quarter length black leather coat, jeans, boots and a hat, ran with his arm outstretched and his hand covered and chased Alaric out the back door. The other three men ran around the back of the house and chased Alaric through back yards and across several streets near 13909 Potomac. When Alaric was caught he gave up his jacket, rings and pager to his assailants. Finley kicked him while he was on his knees. Stewart was wearing tennis shoes and blue jeans. Finley was wearing a black leather coat and Nike tennis shoes. (The witness, Brown, said the shooter was wearing boots. Ebony, Finley and Cooke each testified that Finley was wearing tennis shoes. -24- Although Stewart's testimony contradicted this, indicating that Finley was wearing boots, he also testified that he saw appellant shoot Alaric Gamble.) Appellant approached the victim; Stewart and Finley each witnessed appellant shoot the victim in the face as the victim was attempting to stagger away. Both Stewart and Finley heard more shots as they ran back toward the car. Cooke, Finley and Stewart returned to the car before appellant. When appellant returned to the car he gave the gun to Cooke, and he warned Ebony and Khatina who were also in the car, to say they hadn't seen them that night. Finley proclaimed that the pager was his souvenir. Finley proceeded to drop each member of the group at their respective homes. He dropped off Charles Finley first, then Cooke and appellant and, finally, Stewart. Finley then returned to appellant's house for some money. At that time, appellant gave Finley the boots which appellant had been wearing with the directive to get rid of them. After spending some hours at the home of Khatina's boyfriend, Finley, Ebony and her baby went to the Cee Ray Motel where Finley discarded the boots into the dumpster. The witness, Bradley Brown, after hearing the first shot, watched out his bedroom window and saw the shooter shoot the victim four more times in the head, neck and back. The shooter was wearing a long dark coat, boots and hat. During the murder, the shooter and the victim were alone on the street. Appellant, while waiting for his mother to arrive at the East Cleveland Police Station on January 23, although he had been -25- advised of his right to remain silent, spontaneously revealed to Detective Gioitta that Cooke had the murder weapon. Then, appellant spontaneously admitted that he was the person who shot Alaric Gamble that night. With this evidence as presented by the state, we find that upon review of the entire record before us, when we weigh the evidence and all reasonable inferences and when we consider the credibility of the witnesses, we do not see that the jury so clearly lost its way and created such a manifest miscarriage of justice in resolving any conflict in the evidence that this conviction must be reversed and a new trial ordered. Finally, appellant further argues that because inconsistent verdicts were rendered by the jury, the guilty verdicts entered against him on counts one and two with the finding of guilt on specifications one and three on each count are against the manifest weight of the evidence. We do not agree. The jury found appellant guilty of aggravated murder as charged in both counts one and two of the indictment and guilty on specification one and three on each count. Specification one on each count specifies that the offense presented above was committed while the offender was committing, attempting to commit or fleeing immediately after committing or attempting to commit aggravated burglary and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design. -26- We conclude that upon a review of the entire record before us, when we weigh the evidence and the reasonable inferences, we do not see that the jury so lost its way in finding appellant guilty of specificationone on both counts one and two that a miscarriage of justice has occurred requiring a reversal of conviction and new trial ordered. Appellant's second assignment of error is without merit. Judgment affirmed. -27- 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. TIMOTHY E. McMONAGLE JUDGE DYKE, P.J. and KARPINSKI, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .