COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78530 STATE OF OHIO : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : : AND v. : : OPINION KEITH ROBERTSON : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-385970. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: William D. Mason, Esq. Cuyahoga County Prosecutor Linda R. Travis, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: James A. Draper, Esq. Cuyahoga County Public Defender Patricia Koch Windham, Esq. Assistant Public Defender 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, OH 44113-1569 TIMOTHY E. McMONAGLE, P.J.: Defendant-appellant, Keith Robertson, appeals from the judgment of the Cuyahoga County Court of Common Pleas rendered after a jury trial finding him guilty of felonious assault, a felony of the second degree, in violation of R.C. 2903.11. -2- Appellant asserts that the trial court improperly instructed the jury prior to its deliberations and that his conviction is not supported by the manifest weight of the evidence. For the reasons that follow, we affirm. On January 27, 2000, appellant was indicted on one count of felonious assault as a result of an incident that occurred on July 27, 1999 at Gund Arena. Appellant pled not guilty and trial commenced on July 5, 2000. The state presented the testimony of six witnesses at trial. Michael Rieth, who was twenty-one years old at the time of the incident, testified that on July 27, 1999, he and several friends attended a Roger Waters concert at Gund Arena. According to Rieth, during the first set, a group of four people seated directly behind him and his friends stood up, yelled obscenities, kicked the backs of their seats and spilled beer on him and his friends. Rieth testified that appellant was part of this rowdy group, although he was the least rowdy member. Rieth testified that shortly after the second set began, appellant dropped a lit cigarette in Rieth's lap. Rieth brushed the cigarette off his lap onto the floor. Appellant told Rieth, Hey, give me that, but Rieth put the cigarette out with his foot. Rieth testified that he intended to then turn around and tell appellant and his friends to cool it but before he could do so, he was kicked in the back of his head by appellant. Rieth testified that he thinks he lost consciousness from the blow, but he remembers people on top of him and being hit from all angles. -3- Security officers broke up the fight and Rieth was taken by ambulance to the hospital, where hospital personnel took head and spinal x-rays of Rieth and stitched his cut lip. According to Rieth, he still has a small scar on his lip from the injury. Rieth testified that his right eye was swollen shut for approximately five days after the incident and he continues to see an eye doctor because he still has difficulty focusing his right eye. He missed a week of work as a lifeguard due to his injuries. Jeffrey Martin testified that he, his wife, his nephew, and his nephew's wife were seated in the row behind Rieth, approximately three seats to Rieth's right, at the concert. According to Martin, appellant was seated two seats to his left and one of appellant's friends, described by Martin as an eighteen or nineteen-year-old blonde male, was seated directly to his left. Martin testified that during the first set, the blonde male next to him was quite intoxicated and standing and yelling to the crowd to stand up and join him in being loud and obnoxious. Martin testified that everybody was just kind of ignoring him. When the second set started, the blonde male immediately jumped back up and began his obnoxious behavior again. According to Martin, Rieth and his friends tried to ignore the male and watch the show. Martin testified that shortly after the second set began, he suddenly noticed a commotion in front of him. According to Martin, he observed appellant on top of Rieth and holding him, with Rieth twisted in a ninety-degree fashion and his head exposed. Martin -4- then saw the blonde male walk over to Rieth and begin punching him in the face. According to Martin, appellant continued to hold Rieth while the blonde male punched him eight or nine times before security officers broke up the fight. Rodney Gisztl, Martin's nephew, testified that he observed appellant holding Rieth and then saw his friend just take his fist and throw *** lots of unanswered punches at somebody who was clearly *** defenseless because he was being held by this guy. Michael Spychola testified that he attended the concert at Gund Arena on July 27, 1999 with Rieth and several friends. Spychola testified that he sat directly to Rieth's right during the concert. According to Spychola, during the first set, appellant and his friends, who were sitting directly behind them, were bending down, screaming profanities in their ears and spilling beer on them. Spychola testified that during the second set, appellant dropped a lit cigarette onto Rieth's lap. According to Spychola, he looked over at Rieth and shook his head. He saw Rieth put out the cigarette and then turn around to tell the men behind him to just calm down. Spychola testified that as he turned back to watch the concert, he glanced at Rieth. According to Spychola, then the guy behind him said something to him [Rieth], and then I saw his head jerk forward. Spychola testified that as he started to turn around, they were pretty much on top of him [Rieth]. Spychola observed appellant holding Rieth and the blonde male hitting him repeatedly in the face and head. -5- Carlton Darrell, a detective with the Cleveland Police Department, was working off-duty at Gund Arena the evening of July 27, 1999. Darrell testified that he was working in the security office when appellant and the blonde male, later identified as Michael Herkner, were brought to the security office and placed in a holding cell. After Darrell completed his reports regarding the incident, appellant was released. Darrell testified that he did not observe any bruising or injuries to appellant that evening. Rick Maruniak, a detective with the Cleveland Police Department, testified that in the course of his investigation of this case, he took a statement from appellant regarding the incident on July 27, 1999. Appellant's statement, which Maruniak read to the jury, stated that Rieth punched him in the mouth after appellant dropped his cigarette on the floor. Appellant did not present any witnesses in his defense. The jury subsequently returned a verdict of guilty of felonious assault and the trial court sentenced appellant to two years of incarceration. Appellant timely appealed, raising two assignments of error for our review: I. BY REFUSING PROPERLY AND FULLY TO INSTRUCT THE JURY ON THE LAW OF COMPLICITY, THE TRIAL COURT DEPRIVED KEITH ROBERTSON OF HIS CONSTITUTIONAL RIGHT TO A FAIR JURY TRIAL. II. WHEN NO EVIDENCE SUGGESTED THAT KEITH ROBERTSON ANTICIPATED ACTS BY A CO- DEFENDANT THAT CAUSED PHYSICAL HARM TO A VICTIM, AND MR. ROBERTSON HIMSELF DID NOT CAUSE THE VICTIM SERIOUS PHYSICAL HARM, HIS CONVICTION FOR FELONIOUS ASSAULT WAS -6- AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The jury was instructed that they should consider whether appellant was guilty of the underlying offense of felonious assault or of complicity in aiding and abetting Herkner in his assault on Rieth. In his first assignment of error, appellant asserts that the trial court erred in instructing the jury regarding complicity. R.C. 2923.03 provides in pertinent part: (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: *** (2) Aid or abet another in committing the offense[.] (F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this sections, or in terms of the principal offense. The principal offense which appellant was alleged to have aided and abetted was felonious assault. R.C. 2903.11 defines the elements of this offense as follows: (A) No person shall knowingly: *** (1) Cause serious physical harm to another or to another's unborn[.] The trial court initially instructed the jury as follows regarding complicity: The defendant is charged with complicity in the commission of the offense of felonious assault. -7- Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 27th day of July, 1999 in Cuyahoga County, Ohio, the defendant aided and/or abetted another in committing the offense of felonious assault. The trial court defined knowingly for the jury and then instructed: In other words, the definition of knowledge and (sic) complicity is the same as that in the underlying charge of felonious assault. Aid means to help, assist or strengthen. Abet means to encourage, counsel, incite or assist. The trial court later gave a supplementary instruction regarding complicity: With respect to the complicity, I'm just going to give you one clarification. The defendant is charged with complicity in the commission of the offense of felonious assault. Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 27th day of July, 1999, in Cuyahoga County, the defendant knowingly aided and/or abetted another in committing the offense of felonious assault. I've already defined knowingly for you. The record reflects that defense counsel submitted a proposed instruction regarding complicity which was rejected by the trial judge: Judge, briefly, we had discussed this prior to closing arguments and jury instructions, and I wanted to place an objection on the record. We decided we would do, for expediency purposes, after the jury had deliberated, but I want the record to note that I had requested in writing a jury instruction to be added to complicity ***. -8- I have requested the following jury instruction to be added to the complicity instruction ***: The instruction is as follows, Mere association with the principal will not support a conviction of a crime of complicity without proof of prior knowledge or conspiracy in the commission of a crime. And I base that request on some case law in Ohio, specifically State v. Mootispaw, 110 Ohio App.3d 566, State v. Starr, 214 Ohio App.2d 56, 263 (sic), and In re Miskow, 61 Ohio Misc.2d 229. The trial court overruled defense counsel's request for further instruction. Appellant contends on appeal that the trial court erred in refusing this instruction because it is a correct statement of the law and, therefore, should have been given. Appellant also contends that the instruction should have been given because it was pertinent to the mens rea element of complicity. We disagree. The Ohio Rules of Criminal Procedure provide that the trial judge shall charge the jury in accordance with Crim.R. 30.1 In 1Crim.R. 30 provides in pertinent part: (A) At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies shall be furnished to all other parties at the time of making the requests. The court shall inform counsel of its proposed action on the requests prior to counsel's arguments to the jury and shall give the jury complete instructions after the arguments are completed. The court also may give some or all of its instructions to the jury prior to counsel's arguments. The court need not reduce its instructions to writing. *** -9- construing Crim.R. 30(A), the Supreme Court of Ohio has stated that after arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder. State v. Lessin (1993), 67 Ohio St.3d 487, 493, quoting State v. Comen (1990), 50 Ohio St.3d 206, paragraph two of the syllabus (emphasis in original). It is not crucial that the instruction given contains the precise verbiage proffered by a party: In a criminal case, it is not mandatory upon a trial court to give requested instructions to the jury verbatim, but if the requested instructions contain a correct, pertinent statement of the law and are appropriate to the facts they must be included, at least in substance, in the court's charge to the jury. *** State v. Nelson (1973), 36 Ohio St.2d 79, paragraph one of the syllabus. A court may, however, refuse to give an instruction as to a matter which is not applicable to the facts governing the case. Glover v. Massey(Jan. 11, 1990), Cuyahoga App. No. 56802, unreported, citing Romeo v. State (1931), 39 Ohio App. 309. When reviewing a trial court's jury instructions, an appellate court considers whether the trial court's refusal to give a requested jury instruction was an abuse of discretion under the facts and circumstances of the case. State v. Wolons (1989), 44 Ohio St.3d 64, 68. Here, the trial court did not err in refusing to give defense counsel's requested instruction because the facts did not warrant the instruction. There were no facts demonstrating that appellant *** -10- was merely associating with Michael Herkner at the concert and uninvolved with his assault on Rieth. Rather, the facts established that appellant actively assisted, i.e., aided and abetted, Herkner in his assault on Rieth, by holding him so that Herkner could punch him as many as eight or nine times. Jeffrey Martin testified that appellant held Rieth twisted in a ninety- degree fashion [with] his head exposed while Herkner punched him eight or nine times. Rodney Gisztl testified that he saw Herkner throw *** lots of unanswered punches at Rieth while appellant held him in such a manner as to make him clearly defenseless. Michael Spychola testified that he saw appellant holding Rieth while Herkner hit him repeatedly in the face and head. This evidence demonstrated that appellant assisted Herkner in his assault on Rieth by holding Rieth in a way that exposed his head to Herkner's punches and made him unable to defend himself. Such action by appellant was not mere association and, therefore, the trial court properly refused to give the jury defense counsel's requested instruction. Appellant's argument that the trial court erred in not giving the requested instruction because it was necessary in order for the jury to consider the mensrea element of complicity is also without merit. The trial court properly instructed the jury that to find appellant guilty of complicity, you must find beyond a reasonable doubt that on or about the 27th day of July, 1999 in Cuyahoga County, Ohio, the defendant knowingly aided and/or abetted another in committing the offense of felonious assault. Furthermore, the -11- trial court defined knowingly for the jury. We find no error, therefore, on these facts, in the trial court's refusal to instruct the jury that mere association with Herkner was insufficient to support a finding of complicity in the offense of felonious assault. Appellant's first assignment of error is overruled. In his second assignment of error, appellant asserts that his conviction was against the manifest weight of the evidence. When reviewing a claim that the judgment in a criminal case is against the manifest weight of the evidence, this court reviews 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. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. After reviewing the entire record, weighing the evidence and considering the credibility of the witnesses, we are not persuaded that the jury clearly lost its way and created such a manifest miscarriage of justice that appellant's conviction must be reversed. Rather, as noted earlier, the record reveals that there was substantial evidence from which the jury could have concluded that appellant aided and abetted Herkner in his assault on Rieth. -12- In State v. Sims (1983), 10 Ohio App.3d 56, this court exhaustively reviewed the Ohio case law relative to aiding or abetting a crime. We stated, to aid is to assist. To abet is to incite or encourage. Id. at 58. We stated further: Without previous connection with the transaction, one is not an aider or abettor unless he knowingly does something which he ought not to do, or omits to do something he ought to do, which assists or tends in some way to affect the doing of the thing which the law forbids ***. Id. at 59. Appellant asserts that Herkner's decision to punch Rieth was was his own impulsive, independent act. Appellant contends that he did not consult or communicate with Herkner before Herkner began punching Rieth and therefore, because he had no preceding connection with the assault, he could not have aided and abetted him in his assault on Rieth. We disagree. The evidence offered by the state demonstrated that appellant held Rieth in such a manner that his head was exposed and open to punches. Moreover, appellant held Rieth for a period of time long enough for Herkner to throw eight or nine punches at Rieth. Accordingly, although Herkner's assault may have initially been unexpected, once the assault began, appellant knowingly assisted Herkner. Futhermore, we note that Rieth testified that appellant kicked him in the back of his head and that he was knocked unconscious by the kick. In addition, Spychola testified that after Rieth put out appellant's cigarette on the floor, appellant said something to Rieth and then Rieth's head jerked forward. On this evidence, -13- the jury could have found appellant guilty of felonious assault. The jury verdict form does not indicate whether the jury found appellant guilty of the underlying offense of felonious assault or of complicity in aiding and abetting Herkner's assault on Rieth. Because there was sufficient evidence from which the jury could have found appellant guilty of felonious assault, however, even if the jury instructions concerning complicity were in error, such errors were not prejudicial to appellant. Appellant's second assignment of error is overruled. -14- It is ordered that appellee recover from appellant 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 PRESIDING JUDGE MICHAEL J. CORRIGAN, J. and *JOSEPH J. NAHRA, J., CONCUR. *SITTING BY ASSIGNMENT: Judge Nahra, retired Judge of the Eighth Appellate District of Ohio. 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .