COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73618 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND KENNETH SHORT, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-343001 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL D. HORN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DANIEL W. TAYLOR, ESQ. 2200 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 -2- KARPINSKI, J.: Defendant-appellant, Kenneth Short, appeals from a jury verdict finding him guilty of aggravated murder with a firearm specification and having a gun while under a disability. On appeal defendant argues that (1) the evidence was insufficient to sustain his conviction, (2) the verdict was against the manifest weight of the evidence, and (3) he was denied due process when someone not on the pretrial witness list was allowed to testify. We find no merit to these arguments and affirm the judgment of the court below. The relevant facts follow. Marvin Hall, Jr. was murdered on August 9, 1996. That day Charles Jones was drinking beer with defendant outside defendant's house on Folsom Avenue. When defendant went into the backyard, the victim stopped to visit with Jones. Jones saw Janel Alford, defendant's girlfriend, drive her car into the driveway and hit the victim, who was knocked into the fence. The victim argued with Janel and called her a bitch. Defendant then came from the backyard and shot the victim several times. Jones stated that the victim did not threaten or say anything to defendant prior to the shooting. Raymond Harris testified that he also lived on Folsom Avenue and knew defendant from the neighborhood. On the day of the murder, Harris walked over to defendant's house to borrow a cigarette. Harris saw defendant retrieve a gun from under the steps and place it under his shirt in the back of his pants. Harris noticed that defendant was acting nervous and heard him say -3- he would blow out the victim's brains if he did not hurry back with defendant's $50.00 or his package. Because defendant was high, Harris left. When Harris returned, he learned that the victim had been shot. Percy Allen also lived on Folsom Avenue and knew defendant for 15 to 20 years. Allen was seated on his porch when he heard five gunshots. He then heard a woman yell, Kenny, Kenny, Kenny, come on, come on. (Tr. 242.) He also saw and heard defendant say, I done killed that mother fucker. (Tr. 242, 245.) He saw defendant and his girlfriend drive away. Yet another neighbor from Folsom Avenue, Arruth Harris, testified that while in her house, she heard 4, 5, or 6 gunshots. She ran to her front door and saw defendant flashing a gun and heard him say he got that mother fucker. (Tr. 256.) Dr. Seligman, from the county coroner's office, testified that the victim was shot eight times: twice in the left shoulder and once each in the left side, lower back, left arm, right chest, left upper back, and the back of the head. Dr. Seligman determined that the gunshot to the back of the head was the last shot fired. Defendant testified on his own behalf. He stated that when his girlfriend pulled into the driveway, she almost hit the victim. The victim then began swearing at defendant's girlfriend. As defendant tried to get between the two, the victim began to approach defendant and stated he was going to fuck him up. Defendant observed the victim reach into his back pocket. Defendant testified that he then shot the victim at close range to -4- defend himself. After shooting the victim, he fled to New York City. He was unable to remember how many times he shot the victim or why he shot him in the back of the head. The jury returned a verdict of guilty of aggravated murder and having a gun while under a disability. Defendant timely appeals, raising four assignments of error. Challenging the sufficiency of the evidence, the first and third assignments state as follows: I. MR. SHORT'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. III. THE TRIAL COURT ERRED BY DENYING KENNETH SHORT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL WHERE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE OF THE OHIO CONSTITUTION. In these two assignments defendant argues that the evidence was insufficient to find him guilty of aggravated murder. Specifically, defendant argues that there was no evidence of prior calculation and design necessary to raise this homicide to aggravated murder. This argument lacks merit. The Ohio Supreme Court has discussed the standard to apply when reviewing a claim of insufficient evidence. In State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the court stated as follows: [T]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal -5- standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Id. at 386-387. Construing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence of prior calculation and design to support the aggravated murder conviction. The state presented a number of witnesses whose description of defendant's actions would allow the trier of fact to conclude that defendant anticipated and prepared for the brutal shooting of defendant. Harris heard defendant say he would blow defendant's brain's out if he did not come back soon. Harris observed defendant place a gun in the back of his pants as defendant made this pledge. Charles Jones testified that he saw defendant shoot the victim numerous times and that the victim never threatened defendant at the time of the shooting. When determining whether this was a cold-blooded calculated murder, the trier of fact may consider the manner in which the victim was shot in this case eight times, including one shot to the back of the head. The coroner testified that the shot to the back of the head was the last shot fired. Moreover, two witnesses -6- testified that defendant, flashing his gun after the murder, announced with bravado that he done killed that mother fucker. Thus the trial court had substantial evidence that this was not a killing in self-defense, but rather a cold-blooded, calculated murder. Defendant's first and third assignments of error are overruled. Defendant's second assignment states as follows: II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NOT SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE OF AGGRAVATED MURDER HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT. In this assignment, defendant argues that the judgment of the trial court is against the manifest weight of the evidence. The Thompkins Court, in addition to elaborating on the sufficiency standard, also discussed a challenge to the weight of the evidence. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. 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 -7- 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. ). Thompkins, supra at 387. In the case at bar, the jury did not lose its way and create a manifest miscarriage of justice by finding defendant guilty of aggravated murder. As stated above, the jury heard evidence that defendant was angry with the victim, talked of killing the victim, armed himself, shot the victim eight times, once in the back of the head, and announced without remorse that he had killed the victim. Accordingly, the jury's verdict is not against the manifest weight of the evidence. The second assignment of error is overruled. Defendant's fourth assignment of error states as follows: IV. THE TRIAL COURT ERRED BY DEPRIVING KENNETH SHORT OF DUE PROCESS OF LAW, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. In this assignment, defendant argues that he was denied a fair trial because a person was allowed to testify who was not on the pretrial witness list. Arruth Harris did not come forward until the day of trial, but the court allowed her to testify. Defendant's argument lacks merit. In order to warrant a reversal, defendant must establish prejudice from the fact that the witness was allowed to testify. Arruth Harris testified that, after she heard gunshots, she saw defendant in his front yard flashing his gun and stating that he got the mother fucker. This -8- testimony alone did not unfairly prejudice defendant because it was cumulative to the testimony of Percy Allen who also heard gunshots as well as saw and heard defendant exclaiming that he done killed the mother fucker. Moreover, when Arruth Harris came forward, the trial court allowed defense counsel the opportunity to interview the witness and prepare prior to Harris' testimony. Accordingly, defendant was not denied a fair trial because Harris was permitted to testify. Defendant's fourth assignment of error is overruled. Judgment affirmed. -9- 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. JAMES M. PORTER, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI 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 .