COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72922 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION KENNETH JAMES : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-345,137 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor RICHARD J. BOMBIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT M. INGERSOLL, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44ll3-1569 KENNETH A. ROCCO, J.: -2- Defendant-appellant Kenneth James appeals from his convictions after a jury trial for complicity in the commission of the murder of Antonio Robertson, for the attempted murder of Lilly Fullilove, and for having a weapon while under disability. Appellant contends his first two convictions were based upon insufficient evidence, his second two convictions are against the manifest weight of the evidence and, further, trial counsel failed to render effective assistance in his defense. This court has reviewed the record and has determined none of appellant's contentions has merit; there- fore, it affirms the verdict of guilt on all counts. Appellant's convictions stem from an incident that occurred at the V.I.P. Lounge, a bar located at the corner of Woodhill Avenue and Mt. Auburn Avenue in the City of Cleveland, Ohio. At approxi- mately 1:30 a.m. on the Sunday morning of September 29, 1996, the murder victim, Antonio Robertson, arrived there with a group of his friends and relatives. Robertson's group earlier had been cele- brating his fiance's birthday at a hotel on Cleveland's west side. After dinner, the company decided to conclude the evening by pro- ceeding to the V.I.P. Lounge, which was owned by a friend of Robertson's, for some drinks. 1 Since the group numbered almost twenty persons, five or six vehicles were necessary to transport everyone. Robertson, his brother, his sister Lilly Fullilove, and their friends Kim Williams and Demetrius McDaniel all arrived at the 1Quotes indicate testimony given by a witness at appellant's trial. -3- V.I.P. Lounge at approximately the same time. They parked their vehicles on the street, then proceeded with others from the original group into the building. Once inside the small room, which measured only thirty-seven feet in length by twenty-four feet in width, the five seated themselves at a table as the others moved to the nearby bar. The lounge was crowded with approximately twenty-five other customers in addition to Robertson's group of nearly twenty persons. A short time after Robertson's arrival, his name was announced viathe bar's PA system. The person using the microphone, later identified as Norman Smith, approached Robertson and informed him that some ladies were at the door for him. Robertson left his siblings and friends at the table to pro- ceed to the door area of the lounge. There, he learned that Smith, who apparently worked as a bouncer, was refusing to permit Robertson's aunt, Janice Banks, and her two friends into the room. Smith insisted the women had arrived too late to enter the establishment. Robertson informed Smith the women were part of his group, which was already inside. At that, Smith reluctantly allowed Banks and her two companions to pass through the doorway; however, he followed Robertson and the women over to the table, maintaining vociferously that the bar was closing and they should leave. Robertson responded to Smith's diatribe by stating, Well, if we have to leave, you might as well make everybody leave. -4- Smith thereupon proceeded to the microphone located at the dance floor area. Two other men later identified as appellant and Wendell Cole joined Smith there. McDaniel and Williams observed appellant was holding a bag in his hand. Smith used the microphone to announce the bar was closing. Protests arose from a member of Robertson's group who was with Robertson at the bar. Hearing the comments, one of the bar hos- tesses, later identified as Chyvette Boyd, approached Robertson and requested an explanation for the dispute with Smith. Boyd listened to Robertson's account, then declared it was her bar and that everybody was staying and she hadn't called last call for alcohol. Boyd directed the DJ to turn the music back on. Because she was concerned about the situation developing in the bar, Boyd then went to the telephone to place a call to the bar's owner. After Boyd's departure, Fullilove rose from her seat at the table, preparing to leave. She saw appellant approach Robertson so closely that Robertson exclaimed, You don't have anything to do with this, why are you all in my face like this ? Appellant thereupon circled Robertson, stopping to place himself in proximity to Robertson and within two to three feet of Smith, who stood nearer to the door of the establishment. Cole formed another point of a triangle around Robertson. Banks had been standing by the table during these proceedings. She perceived Smith had a look on his face that she interpreted as threatening. She therefore moved toward her nephew to warn him. At Banks' movement in his direction, however, Smith turned to her, -5- retrieved a revolver from his waistband area and fired the weapon at her. Within a moment, Cole and appellant also produced weapons. Appellant fired his, pointing it at Robertson. Fullilove in- stinctively stepped in front of her brother upon seeing appellant's gun and, as a result, received a gunshot wound to her stomach. Banks was wounded in the left side by Smith's shot; she col- lapsed onto her friend, Kim Williams. By this time, chaos reigned in the lounge. Robertson and McDaniel both were among those who ran out the door of the small room. Smith, closely fol- lowed by appellant and Cole, pursued the two men. Once outside, Smith overtook McDaniel, passed him, then fired his revolver again at Robertson. Robertson fell to the ground. Smith, appellant and Cole continued running. Although police and emergency medical service personnel were summoned to the scene, it took some time for them to arrive. Eventually, the victims were transported to nearby hospitals. Later in the morning of September 29, 1996, Fullilove underwent a surgical procedure for removal of a bullet from her stomach. Robertson was pronounced dead soon after his arrival at the hospital. A subsequent autopsy revealed Robertson had been shot twice, in the head and in the upper back, sustaining fatal brain and lung injuries. A subsequent police investigation of the incident led to appellant's indictment with Wendel Cole on three charges, viz., (1) complicity in the commission of the murder of Antonio Robertson, R.C. 2923.03/2903.02; (2) attempted murder of Lilly Fullilove, R.C. -6- 2923.02/2903.02; and (3) having a weapon while under disability, 2Appellant assigned counsel to represent him. Appellant and his co-defendant were tried separately. Prior to trial, appellant agreed to have the third count of the indict- S2903.02 Murder. (A) e2R.C. 2923.13. death of another *** . S2923.03 Complicity. (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; *** . S2923.02 Attempt. (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense. S 2923.13 Having weapons while under disability. (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * * (2) The person is under indictment for or has been convicted of any felony offense of violence ***. * * * (B) No person who has been convicted of a felony of the first or second degree shall violate division (A) of this section within five years of the date of the person's release from imprisonment or from post-release control that is implied for the commission of a felony of the first or second degree. -7- ment tried to the bench during the course of a jury trial on the first two counts. The state presented the testimony of the fol- lowing witnesses during its case-in-chief: an assistant county coroner; Janice Banks; Dimitrius McDaniel; Lilly Fullilove; Kim Williams; and the police homicide detective assigned to the case. The state also introduced into evidence the autopsy protocol on Robertson's death, numerous photographs of the area where the incident occurred, and two bullets recovered from the victims' bodies. In his defense, appellant presented the testimony of Chyvette Boyd and of one of the many uniformed police officers who responded to the scene on the night of the incident. The officer, James Tooney, testified Fullilove told him Smith shot her. Thereafter, the trial court permitted the state to recall Fullilove to rebut Tooney's testimony. Subsequently, the jury found appellant guilty of the first two counts of the indictment and guilty of the firearm specifications. The trial court further stated it found appellant guilty of the remaining count. The trial court ordered a presentence investigation and report; thereafter, it sentenced appellant to consecutive terms of incarceration of fifteen years to life on count one, eight years on count two, one year on count three, and three years on the gun specification. Appellant has filed a timely appeal of his conviction and presents three assignments of error for this court's review. -8- Appellant's first assignment of error states: KENNETH JAMES HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR MURDER AND ATTEMPTED MURDER, AS NEITHER CONVICTION WAS SUPPORTED BY SUFFICIENT EVI- DENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Appellant argues the evidence both that he aided and abetted Smith in the murder of Antonio Robertson and that he attempted to kill Lilly Fullilove was constitutionally insufficient to support his convictions for those offenses. This court disagrees. According to Crim.R. 29(A), a motion for judgment of acquittal may be granted if the evidence is insufficient to sustain a con- viction on the offense charged. If, however, reasonable minds can reach different conclusions as to whether each element of the offense has been proven beyond a reasonable doubt, the motion must be overruled. State v. Bridgeman (1978), 55 Ohio St.2d 261, cited with approval in State v. Dennis (1997), 79 Ohio St.3d 421 at 430. An appellate court reviewing the denial of a Crim.R. 29 motion, moreover, is required to view the evidence in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172, 175. Having thoroughly scrutinized the record, this court finds there was sufficient evidence presented at trial that, if believed, would convince the average mind of appellant's guilt of the offenses charged beyond a reasonable doubt. Admittedly, the state failed to present evidence or testimony that directly showed appellant purposely participated in Smith's killing of Robertson and thus intended to shoot the victims; rather, the state relied on -9- circumstantial evidence. Yet circumstantial evidence of a defen- dant's purpose may be used to sustain a conviction. As the Ohio Supreme Court has acknowledged, *** circumstantial evidence may be more certain, satisfying, and persuasive than direct evidence. State v. Jackson (1991), 57 Ohio St.3d 29, 38. Thus, it is not error that the proof of guilt used to convict appellant was based in part on circumstantial, and not direct, evidence. State v. Franklin(1991), 62 Ohio St.3d 118, 124; State v. Jenks (1991), 61 Ohio St.3d 259, 272; State v. Nicely (1988), 39 Ohio St.3d 147; State v. Johnson (1978), 56 Ohio St.2d 35; State v. Robinson (1954), 161 Ohio St. 213. The court stated the following in State v. Sims (1983), 10 Ohio App.3d 56 at 59: Ohio courts of appeals have previously held that, to constitute aiding and abetting, the accused must have taken a role in causing the commission of the offense. * * * A frequently quoted definition of aiding and abetting is contained in Smith v. State (1931), 41 Ohio App. 64, 67-68: In the absence of a conspiracy or some preceding connection with the transac- tion, one does not aid and abet if he merely sees a crime being committed. Goins v. State, 46 Ohio St. 457, 21 N.E. 476. Mere approval of acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding or abetting of the act. State v. Peasley, 79 Wash. 99, 141 P. 316. (Emphasis added.) -10- In this case, the state presented circumstantial evidence that demonstrated appellant was not merely present during the commission of the shootings but, rather, that appellant took an active role in the crimes and purposely used his weapon to aid Smith in both attempting to commit and committing murder. Banks, Fullilove and Williams all testified appellant insinuated himself into the argument Smith was having with Robertson and seemed to exchange words with Robertson despite Robertson's comment to him that appellant had nothing to do with this. McDaniel testified appellant seemed to be lending support to Smith. Fullilove and McDaniel both stated that as the argument escalated between Smith and Robertson, appellant retrieved a bag from the area of the DJ's booth. Fullilove saw appellant position himself near Smith; she and McDaniel subsequently observed that appellant extracted a gun from the bag after Norman [Smith] pulled his gun out. Fullilove and McDaniel testified appellant fired a gun. Furthermore, Williams stated she saw appellant point it at Robertson; however, rather than striking Robertson, because of Fullilove's quick action, appellant`s bullet struck Fullilove instead of the most likely target. Williams testified that after the shooting, appellant fled the room with Smith. McDaniel stated he and Robertson already had exited; however, Smith overtook him. McDaniel saw Smith fire his weapon at Robertson, who was ahead of him, striking Robertson in the head and the back. Then Smith, appellant and Cole disap- -11- peared. At trial, moreover, Banks identified appellant in a photograph that had been taken at the V.I.P. Lounge by a profes- sional photographer earlier on the night of the incident. The photograph depicted appellant posing with Smith, Cole and another man. The foregoing evidence was sufficient to demonstrate that appellant's role in the commission of the shootings went beyond that of mere presence at the scene and, instead, was purposeful. Indeed, viewing the evidence in a light most favorable to the prosecution, the following facts were established: (1) appellant was closely associated with Smith; (2) appellant allied himself with Smith as the argument with Robertson commenced; (3) appellant obtained a gun as the argument escalated; (4) appellant followed Smith's lead in shooting at Robertson upon Banks' sudden movement toward her nephew, although Fullilove was wounded by the bullet meant for Robertson; (5) in running from the lounge with Smith, appellant also was in pursuit of Robertson; and (6) after Smith accomplished his purpose to kill Robertson, appellant fled the scene with Smith. A review of the record thus reveals ample circumstantial evidence such that reasonable minds could reach different conclu- sions as to whether each material element of the crimes was proven beyond a reasonable doubt. State v. Taylor (1993), 66 Ohio St.3d 295 at 306; State v. Misch (1995), 101 Ohio App.3d 640; State v. Robinson(1994), 98 Ohio App.3d 560; State v. Shue (1994), 97 Ohio App.3d 459. Therefore, the trial court correctly permitted the -12- jury to choose between the competing constructions of the evidence of appellant's complicity in murder and his attempt to murder. Accordingly, since appellant was not deprived of his right to due process of law in this case, his first assignment of error is overruled. Appellant's second assignment of error states: KENNETH JAMES'S CONVICTIONS FOR ATTEMPTED MURDER AND HAVING A WEAPON WHILE UNDER A DISABILITY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the testimony of the state's witnesses was unreliable and contradicted; therefore, his convictions for attempted murder and having a weapon while under a disability were not sustained by the weight of the evidence. Appellant's argument is unpersuasive. In State v. Thompkins (19997), 78 Ohio St.3d 380 at 386, the Ohio Supreme Court indicated the correct test to be utilized when addressing the issue of manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App.3d 172, as follows: There being sufficient evidence to support the conviction as a matter of law, we next con- sider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibil- ity of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- fest miscarriage of justice that the convic- tion must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42 (Emphasis added.) -13- Moreover, a reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks, supra. It is axiomatic that 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. A review of the record in this case demonstrates appellant's convictions for attempted murder and having a weapon while under a disability were in accord with the manifest weight of the evidence. The state's witnesses presented a logical and, in view of the rapidity of the sequence of events that occurred, coherent summary of the circumstances surrounding the shootings of Fullilove and Robertson. Their testimony was supported by the physical evidence introduced by the state. Appellant stipulated to his 1995 conviction for carrying a concealed weapon. State v. Riggins (1986), 35 Ohio App.3d 1. Moreover, the evidence that Smith and Robertson engaged in a heated argument was undisputed. McDaniel, Fullilove and Williams all testified they observed appellant produce a gun within moments of Smith's resort to one. While Smith fired at Banks, appellant fired at Robertson, only to hit Fullilove, who leaped toward her brother. The witnesses who testified they did not see appellant with a gun all indicated they were otherwise occupied as chaos reigned in the barroom. The -14- certainty of the witnesses' testimony concerning precisely how many shots were fired was for the jury to consider. Furthermore, the testimony of the state's witnesses was not actually contradicted by that of appellant's witness, Boyd, who admitted appellant seemed to have a close association with Smith and also admitted she was preoccupied with her telephone call when the shootings commenced. Finally, Tooney's testimony that Fullilove informed him on the night of the incident Smith was her assailant was impeached on cross-examination and by Fullilove's rebuttal testimony. In short, there was consistent, credible evidence adduced at trial in this case that supported both the jury's and the trial court's conclusions that appellant was involved in Smith's plan to shoot Robertson and, even though appellant had a 1995 felony conviction, fired a gun at Robertson with an intent to kill him but struck Fullilove instead. State v. Coleman (1988), 37 Ohio St.3d 286 at 291; State v. Allen (1996), 115 Ohio App.3d 642; State v. Shue, supra. The record in this case reflects that weighing all the evidence, drawing all the reasonable inferences therefrom, and considering the testimony and credibility of the state's witnesses and appellant's witnesses, the verdict fails to indicate the triers-of-fact lost their way and created a manifest miscarriage of justice. State v. Martin, supra. Accordingly, appellant's second assignment of error is also overruled. -15- Appellant's third and final assignment of error states: KENNETH JAMES WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. Appellant argues his trial counsel rendered ineffective assistance during his representation of appellant in failing to raise the affirmative defense of abandonment to the complicity to commit murder charge; however, appellant's argument finds no support in the record. The claim of ineffective assistance of counsel requires proof that counsel's performance has fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus; see, also, State v. Lytle (1976), 48 Ohio St.2d 391. The establishment of prejudice requires proof that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, paragraph three of the syllabus. The burden is on appellant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Trial counsel is strongly presumed to have rendered adequate assistance. Id. Moreover, this court will not second-guess what could be considered to be a matter of trial strategy. Id. The record in this case with regard to trial counsel's actions fails to demonstrate counsel's performance fell below an objective standard of reason- ableness. -16- In his opening argument, defense counsel delineated his theory of the case as follows: MR. TOBIK: May it please the Court, Mr. Bombik, Ms. Marsune, ladies and gentlemen of the jury. Well, this is why we have a trial, because there is a difference of opinion as to what happened that night and what the evidence will show happened. There are some things that we can agree on, that two women were shot in the bar, Ms. Fullilove and Ms. Banks, and that Mr. Robert- son was shot and killed outside of the bar. But what the evidence will show, after you hear all of the evidence in this case, is that Kenneth James did not participate in any of those shootings; that yes, you'll learn that he knew of a bouncer Norman Smith, he knew other people in the bar, he was there. You will hear that another party came in and a discussion, an argument followed. But the evidence will show you that Kenneth James did not participate in pulling a gun, did not threaten anyone with a gun, and did not chase anyone outside. The thrust of appellant's defense at trial, therefore, was that appellant did not participate in any way in the shootings of the victims. A defense of abandonment, on the other hand, implies initial participation in a scheme but then renunciation of it. The two positions are both inconsistent and mutually exclu- sive. Because of the evidence that appellant was closely associ- ated with Smith and Williams' testimony that appellant appeared to be aiming his weapon at Robertson inside the V.I.P. Lounge, perhaps trial counsel's only recourse was to exploit the failure of some of the other witnesses actually to observe appellant's actions in the chaos that followed Smith's initial shot at Banks. This decision -17- was well within the ambit of trial strategy. See e.g. Lakewood v. Town (1995), 106 Ohio App.3d 521; State v. Hunt (1984), 20 Ohio App.3d 310; State v. Carrothers (Feb. 2, 1998), Cuyahoga App. No. 72064, unreported. In any case, in view of the overwhelming evidence of appel- lant's guilt, we conclude the record herein fails to show, with reasonable probability, that the verdict would have been different had trial counsel chosen to present an alternative defense. State v. Seokaran and Pooran (Apr. 8, 1993), Cuyahoga App. Nos. 62298, 62299, 63353 and 63354, unreported; cf., State v. Owens (Mar. 1, 1990), Cuyahoga App. No. 56577, unreported. Therefore, since appellant can demonstrate neither that trial counsel's actions fell below an objective standard of reasonable representation nor that he was prejudiced by trial counsel's actions, appellant has failed to support his claim he was denied his right to effective assistance of counsel. Accordingly, appellant's third assignment of error is overruled. Appellant's convictions are affirmed. -18- 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 Cuyahoga County 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. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .