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State v. Flemming9/5/1996
ins no positive references to defendant's accidental shooting due to intoxication).
Appellant's fifth and sixth assignments of error are accordingly overruled.
D.
In his seventh assignment of error, appellant relies on the foregoing assignments of error to substantiate his claim that he was denied the effective assistance of counsel at trial. Based upon our conclusions that appellant's prior assignments of error are without merit, we fail to find that he was denied effective assistance of counsel as a result of the errors complained of therein. See Lockhart v. Fretwell (1993), 506 U.S. , 113 S.Ct. 838, 122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674; State v. Bradley (1989), 42 Ohio St.3d 136.
Appellant's seventh assignment of error is overruled.
E.
Appellant's eighth assignment of error addresses the weight of the state's evidence. Appellant fully admitted throughout the trial that he was responsible for Batista's death, but he otherwise denied that the shooting occurred while he committed or attempted to commit a robbery. He argues that the state's proof of a theft or attempted theft was "woefully inadequate," and requires a vacating of his aggravated robbery conviction, and consequently a reversal of his conviction under R.C. 2903.01(B).
Appellant focuses on the condition of Batista's body and the items recovered nearby in arguing this assignment of error. The recovered items include a comb, "Bugler" cigarette rolling papers, a lighter, and an appointment card from San Juan Batista Church. Appellant submits that there are five problems with this proof: (1) conflicting evidence as to the items; (2) doubt as to whether any of the items belonged to Batista; (3) the possibility that some or all of the items fell from Batista during his struggle with appellant, or when police officers checked his pulse or moved him; (4) none of Batista's property was recovered from appellant, Gant or Jolly or from appellant's vehicle; and (5) the only items of value--Batista's wallet and watch--were with the victim at the hospital.
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 court stated:
he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. * (Citations omitted.) Id., 175. See Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652.
Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. Therefore, it must be stressed that the weight of the evidence and the credibility of the witnesses are issues properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476; 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 either the state's witnesses and/or those of the defense. State v. Antill (1964), 176 Ohio St. 61, 67; State v. Harriston (1989), 63 Ohio App.3d 58, 63.
In the present case, contrary to appellant's assertion, Batista's wife, Evelyn, testified that most of the personal belongings found in the vicinity of her husband's body were those of he
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