COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59231 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KEVIN HOLLOMAN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 244979 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 75 Public Square Bldg. #1016 BY: A. STEVEN DEVER, ESQ. Cleveland, Ohio 44113 ASSISTANT PROSECUTING ATTORNEY The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: The defendant-appellant, Kevin Holloman, was indicted on October 23, 1989, charged with Aggravated Murder with a firearm specification. The indictment alleged defendant, with prior calculation and design, caused the death of Christopher Pitts on October 4, 1989. The defendant plead not guilty. Prior to trial, the court granted defendant's motion to suppress his written statement. After a jury trial, defendant was convicted of the lesser included offense of voluntary manslaughter. It is from that conviction defendant appeals. On October 3, 1989, the defendant, his father and Pitts, Christopher Pitts resided in a house on Chapelside Avenue in Cleveland, Ohio. On that day, late in the afternoon, the defendant was visiting with neighbors across the street from his residence. Defendant returned home to get a can of soup from his kitchen in order to take it back across the street to an ailing neighbor. When the defendant arrived home, Pitts got up off the couch and yelled to defendant, "What the hell are you going to do about the dog?" The record shows that defendant had recently brought a puppy into the house and the untrained puppy was tearing things up and soiling the house. According to the defendant, he tried to reason with Pitts but Pitts kept calling him names and "cussing." The defendant called his mother's home - 2 - to get someone to talk to Pitts in order to calm him down. The defendant testified that Pitts grabbed the phone from him, swung it at him and hit him in the head. The defendant stated that after Pitts hit the defendant with the phone Pitts said "I'll kill you and the dog." Defendant testified that after Pitts got off the phone, he punched the defendant in the face and continued to be angry about the puppy and the way the defendant was handling the situation. According to the defendant, Pitts then grabbed him by the seat of his pants, took him to the front door and threw him out so hard that he landed on the sidewalk./1\ Defendant alleged that he went back into the house and talked to his neighbor, King Todd, who was present in the house. Defendant asked Todd to wait a minute and then went upstairs and looked for his father's gun. Defendant stated he wanted to arm himself in order to protect himself and scare Pitts. When he returned downstairs, Todd told defendant to put the gun away. Defendant stated he put the gun in between the cushions of the couch. After Todd left, defendant stated, he removed the gun from the couch and put it back upstairs and returned to the downstairs living area to watch T.V. Defendant stated that Pitts continued to taunt him. Defendant testified that Pitts picked him up, shook him, hit him and said, "I'll take care of you and your punk ass dog now." Defendant stated Pitts took the puppy by the neck /1\ The record reflects defendant suffered a broken wrist as a result of the incident. - 3 - and ran. Defendant stated he knew Pitts had a gun and knew he kept it in the trunk of his car. Defendant claimed, at this point, that he went back upstairs to once again retrieve his father's gun. Defendant then stepped outside and saw that Pitts had the puppy by the neck. Defendant claimed Pitts heard him coming and turned around with one hand behind his back. The defendant testified that he asked Pitts to drop the puppy and that Pitts then started coming towards defendant. Defendant claimed he shot Pitts in the leg above the knee. Defendant remembered that he shot Pitts two more times. Defendant claimed Pitts never had his back turned towards him. Defendant testified he did not intend to kill Pitts but merely disable him. On cross-examination the state used defendant's suppressed written statement in order to impeach his credibility. Defendant, in his written statement, gave a different version of when he retrieved the gun. Defendant stated that after Pitts had flung him off the porch, Pitts went back in the house, grabbed the dog by the neck and headed towards the back door. The defendant, according to his statement, went back in the house, got the gun from the second floor and followed Pitts outside to the back yard. The defendant presented a number of character witnesses who testified that defendant was not a violent individual. King Todd testified for the state and stated that he lived across the street from the defendant and victim. Todd testified - 4 - that on the day in question the defendant sought his help because of the problems he was having with Pitts. Todd accompanied defendant back to defendant's house in order to calm Pitts. Pitts, Todd stated, was upset because defendant's dog had messed all over the house. Todd claimed an argument continued between defendant and Pitts over the dog and at one point Pitts hit the defendant in his face and continued to call him disparaging names. Pitts then grabbed defendant by the back of his hair and the seat of his pants and threw him out from the front porch to the curb. The defendant, according to Todd, returned to the house and told Pitts, "Hey, I ought to shoot you while you're on the phone." Todd noticed defendant's hand was behind his right thigh. Todd heard Pitts say, "He's not the only one with a gun." According to Todd, Pitts also stated, "If the dog is not out by Monday, I'll take him out." After Pitts left, Todd returned to his home figuring that the altercation had ended. Moments later Todd heard a gunshot and then approximately 40-60 seconds later heard two more shots. Todd returned to defendant's home and saw defendant standing between Pitts's car and the house with his arm outstretched. Alan Marshall testified for the state and related that on October 3, 1989 he was working in his back yard, which was adjacent to the defendant's house. Marshall stated he was in the back yard with his friend, Kenneth Jackson. Marshall stated he saw Pitts come out of the house with a dog under his arm and keys - 5 - in his hand. Marshall saw Pitts put the keys in the trunk and open it up. Pitts was bent over to open up the trunk, Marshall claimed, when the defendant came out of the house after him. When Pitts attempted to put the puppy in the trunk, the defendant, Marshall stated, walked up behind him and shot him. Marshall stated Pitts was turned away from defendant when defendant shot him. Pitts then tried to run away but the defendant shot him two more times. When Pitts asked defendant to stop shooting and call for help, the defendant, according to Marshall, stated to Pitts, "Don't move. Don't mess with a man with an itchy finger, with a gun that's loaded and cocked." Kenneth Jackson corroborated Marshall's testimony. Jackson testified that he saw Pitts carry the dog out of the house, open the trunk, and start to put the puppy in when the defendant came from behind and shot Pitts in the back. According to Jackson, Pitts, after the first shot, let go of the puppy, put his hands up and said "Stop, stop, you already shot me one time." Pitts, Jackson stated, ran from defendant after the first shot. Defendant, according to Jackson, then shot Pitts two more times. Pitts fell in the mud and told defendant to call the police. Jackson reemphasized in his testimony that at the time of the first shot, Pitts was bending over into the trunk and was shot from behind. Jackson too related defendant's comment to Pitts, i.e., "You got the nerve to mess with a man with an itchy trigger finger." - 6 - The coroner testified the victim received three gunshot wounds, one to the right buttock, one off the right hip and a wound to the right thigh. The bullet which struck the right buttock penetrated the abdominal cavity and lacerated arteries and veins which caused internal hemorrhaging that resulted in death. The coroner ruled the death a homicide. The shot to the buttock was the fatal wound. At the conclusion of the evidence, the court stated it would not instruct on self-defense but would instruct on the lesser included offenses of murder and voluntary manslaughter. Defendant assigns thirteen errors for review. I THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PRECLUDES THE INTRODUCTION of EVIDENCE CONCERNING THE VIOLENT TENDENCIES OF CHRISTOPHER PITTS SO AS TO CORROBORATE THE CLAIMS OF THE DEFENDANT WITH RESPECT TO SELF- DEFENSE. VII THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO INSTRUCT UPON SELF- DEFENSE. We will jointly deal with appellants first and seventh assignments of error as they raise similar issues. Appellant argues the trial court improperly excluded testimony from witnesses, which would have supported his claim that he acted reasonably and in self-defense under the present circumstances. In his seventh assignment of error, appellant complains that the trial court erred in refusing to instruct on self-defense. - 7 - We find appellant's argument to be without merit. To prove self-defense in Ohio it must be established, inter alia, that the person asserting this defense had "*** a bona fide belief that he [she] was in imminent danger of death or great bodily harm and that his [her] only means of escape from such danger was in the use of such force." (Emphasis added.) State v. Robbins (1979), 58 Ohio St. 2d 74, paragraph two of the syllabus; see, also State v. Koss (1990), 49 Ohio St. 3d 213, 215. In Robbins the Supreme Court set forth the elements of self- defense as follows: (1) the slayer was not at fault in creating the situation giving rise to the affray, (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. The court in the present case refused defendant's request to instruct on self-defense finding that it had not been established that appellant had not violated a duty to retreat or avoid the danger. We agree with the court's conclusion that an instruction on self-defense was unwarranted. The record clearly shows that appellant could easily have removed himself from the situation and could have obtained help from his neighbors or the police. Instead, appellant retrieved a gun and followed the victim outside into the back yard where the evidence overwhelmingly indicates he shot him from behind. - 8 - The court's refusal to instruct and refusal to allow in the complained of testimony was not error as the record shows self- defense not relevant. The assignment of error is without merit. II THE COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING CROSS-EXAMINATION OF THE STATEMENT MADE BY THE DEFENDANT AFTER THE COURT HAD GRANTED THE MOTION TO SUPPRESS THE STATEMENT. In his second assignment of error defendant argues the trial court erred in allowing the state to use during defendant's cross-examination, defendant's written statement which had been suppressed prior to trial./2\ In Harris v. New York (1971), 401 U.S. 222, the Supreme Court held that evidence which is inadmissable in the prosecutor's case-in-chief is admissible for purposes of impeachment of a defendant upon rebuttal. The defendant's credibility was appropriately impeached in the instant case by use of his earlier conflicting statements. Further, there was no evidence that defendant's written statement was involuntary or coerced. See Oregon v. Hass (1975), 420 U.S 714 (No evidence that defendant's statements involuntary or /2\ The record shows the statement was suppressed because defendant initially indicated that he did not wish to make a written statement and wanted to see a lawyer. The next day the police reinitiated discussions with appellant, without a lawyer present, and defendant then gave a written statement. The record shows defendant was given his rights a second time and voluntarily gave the statement. The trial court ruled the police acted improperly in reinitiating discussions once the defendant indicated he did not wish to make a statement. - 9 - coerced. Suppressed statement admissible solely for impeachment purposes after suspect had taken stand and testified contrary to the inculpatory information, knowing such information had been ruled inadmissible for prosecutions case in chief). Cf. State v. Moore (19888), 40 Ohio St. 3d 63. III THE DEFENDANT WAS DENIED HIS RIGHT TO PRESENT A DEFENSE WHEN THE COURT WOULD NOT ADMIT INTO EVIDENCE ALLEGED PRIOR INCONSISTENT STATEMENTS OF A STATE WITNESS. Appellant argues the trial court erroneously limited his direct examinations of Alexandra Woodall and Victoria Davis, two witnesses who arrived on the scene after the shooting. Defendant attempted to elicit testimony from these witnesses, which according to appellant, would have revealed that Kenneth Jackson's testimony at trial, was inconsistent with statements he made on the day of the incident. Defendant's clear intent was to impeach Kenneth Jackson's testimony through the use of a prior inconsistent statement. Evid. R. 613 permits cross-examination of a witness about that witness' own prior inconsistent statements. The rule does not permit impeachment of a witness through the use of extrinsic evidence, in this case the testimony of Woodall and Davis, until the witness, Jackson, has had an opportunity to explain or deny the prior statements. See Evid. R. 613(B). Defendant should have recalled Jackson for further cross-examination about the alleged inconsistent statement in order to give him an - 10 - opportunity to explain or deny these prior statements Defendant did not recall Jackson, and the assignment of error is overruled. See State v. Savage (February 9, 1989), Cuyahoga App. No. 55406, unreported. IV THE DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT PERMITTED THE CORONER TO TESTIFY AS TO REPORTS AND RESULTS MADE BY OTHER PERSONS. Defendant argues he was denied an opportunity to confront and cross-examine witnesses when the coroner was allowed to testify about the results of the toxicology report. The coroner stated that he requested the laboratory in his office to perform certain tests on the victim's bodily fluids. The coroner testified that these tests are part of the autopsy protocol, which is normally kept in the custody of the coroner's office. The coroner was allowed to testify, that the results of the toxicology were negative for drugs and alcohol. Defendant complains on appeal that since the coroner did not prepare the toxicologist's report, he should have been precluded from testifying as to its results. Defendant argues the coroner should have been precluded from basing his opinion upon the opinion of others. Even assuming defendant's argument is meritorious, defendant has failed to argue or demonstrate how this alleged error prejudiced him so as to have denied him a fair trial. The evidence supporting defendant's conviction is overwhelming and - 11 - in the absence of plain error we overrule this assignment of error. V THE COURT COMMITTED PREJUDICIAL ERROR AND DENIED THE DEFENDANT DUE PROCESS WHEN IT OVERRULED HIS MOTION FOR DISCOVERY AND INSPECTION. Appellant filed, prior to trial, a motion for discovery of statements of potential witnesses pursuant to Ohio's public records statute, R.C. 149.43./3\ The trial court denied the motion /3\ R.C. 149.43(B) requires that "[a]ll public records shall be promptly prepared and made available for inspection to any member of the general public at all reasonable times during regular business hours. ***" R.C. 149.43(A) defines the term "public record" and specifically exempts confidential law enforcement investigatory records from the disclosure requirement. The term "confidential law enforcement investigatory record" is defined in R.C. 149.43(A)(2) as follows: 'Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extend that the release of the record could create a high probability of disclosure of any of the following: (a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised; (b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity; (c) Specific confidential investigatory techniques or procedures or specific investigatory work product; (d) Information that would endanger the life of physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. - 12 - finding the prosecutor did not have to disclose the statements of potential witnesses, that the requested information was confidential work product and that Crim. R. 16 afforded appellant the opportunity during trial to review the witness' statements. The Ohio Supreme Court in State, ex rel. Shane v. New Philadelphia Police Dept. (1990), 56 Ohio St. 3d 36 held trial courts can decide R.C. 149.43 issues in the discovery process./4\ If a trial court wrongfully decides the R.C. 149.43 issues, a defendant could obtain redress by way of appeal from his criminal conviction. Id. at 37. See, also, State, ex rel. McGee v. Ohio State Board of Psychology (1990), 49 Ohio St. 3d 59, 61; Henneman v. Toledo (1988), 35 Ohio St. 3d 241; State, ex rel. Hastings Mut. Ins. Co., v. Merillat (1990), 50 Ohio St. 3d 152 The trial court is under an affirmative obligation to make an individualized scrutiny of the public records in question to determine if the records contain excepted information as defined in R.C. 149.43. If the records do contain excepted information, this information must be redacted. State, ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St. 3d 79. If the trial court redacts a part of the records in question the court /4\ Our reading of R.C. 149.43 and State, ex rel. National Broadcasting Co. v. Cleveland (1988), 38 Ohio St. 3d 79 indicate the trial court had a greater responsibility than that which it has under Crim. R. 16. The trial court's statement therefore that Crim. R. 16 provides adequate discovery and makes R.C. 149.43 inapplicable appears to be erroneous. - 13 - must under seal, make the redacted portions a part of the record on appeal. This court has not been supplied with any of the records at issue. The record reflects that appellant failed to request or demand that the records at issue be supplied to this court. We cannot therefore determine whether appellant was prejudiced in the absence of reviewing those records which appellant complains he was entitled. It is appellant's duty to demonstrate prejudice and supply this court with a record indicating such prejudice. See Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197. We note that appellant was provided an opportunity to review witness statements pursuant to Crim. R. 16 and further was provided discovery by the state. The record in this instance does not demonstrate prejudice and the assignment of error is overruled. VI THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED THE PROSECUTOR TO STATE TO THE JURY THAT SELF-DEFENSE WAS NOT INVOLVED IN THIS CASE. Appellant complains in his sixth assignment of error that he was denied a fair trial when the prosecutor, in his closing argument, was allowed to state that a self-defense instruction was not going to be given and that self-defense should not be considered. - 14 - Upon review of the prosecutor's closing arguments, we find that they did not prejudice appellant. Self defense as discussed supra, was not relevant in this case and the trial court was correct in refusing to instruct on the defense. We fail to see how the prosecutor's comments could have prejudiced appellant. The assignment of error is without merit. VIII THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY AS TO THE REPEALED ELEMENTS OF VOLUNTARY MANSLAUGHTER AND FURTHER FAILED TO EXPLAIN TO THE JURY THE REQUIREMENT THE DEFENDANT IS RESPONSIBLE FOR PRODUCING EVIDENCE AS TO MITIGATING CIRCUMSTANCES. Appellant argues that the trial court incorrectly instructed the jury on the repealed language of voluntary manslaughter, i.e, extreme emotional stress, which had been superseded by sudden passion and rage. See R.C. 2903.03, supra. Appellant also argues that the trial court erred in not instructing the jury that the defendant bears the burden of producing some evidence of the mitigating circumstances, i.e., provocation, in order to convict an individual of voluntary manslaughter. See Muscatello, supra. Reviewing the record we find that after the general charge, the trial court acknowledged that sudden passion and rage was the correct and current language contained in the statute, and pursuant to the state's request, and prior to the jury retiring, reinstructed the jury on voluntary manslaughter. The record - 15 - shows defendant did not object on these grounds to the court's instruction. The record further shows that after the jury began its deliberations, it requested the court to re-read its instructions on aggravated murder, murder and voluntary manslaughter. The court's instructions defined sudden passion and rage and we note, were not objected to by defendant. Defendant has therefore waived any error. State v. Williams (1977), 51 Ohio St. 2d 112. The argument is not well taken. Lastly, the record contains some evidence of provocation and we therefore find the court's failure to instruct on the burden of proof concerning the mitigating circumstance harmless. The assignment of error is overruled. IX THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO GIVE ANY INSTRUCTIONS WITH RESPECT TO ORAL STATEMENTS MADE BY THE DEFENDANT. In his ninth assignment of error defendant contends the trial court improperly refused to give an instruction on oral statements made by the defendant to a police officer. The record shows the trial court, prior to giving its instructions, went through, with the parties, the requested instructions. The defendant did not object to the court's refusal to instruct and never objected to the exclusion of this instruction after the general charge. - 16 - Defendant, by failing to object, has waived his argument. Williams, supra. X THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE AN IMPROPER INSTRUCTION WITH RESPECT TO CAUSATION WHICH CONSTITUTED AN AMENDMENT TO THE STATUTE IN THE INDICTMENT. Defendant complains that in defining "causation" in its instructions the court incorrectly used the term "proximate causation" instead of causation thus, prejudicially expanding the definition of cause to include negligence instead of the greater mens rea defined in the statutes. The record reflects that the court corrected its instruction on causation, after the general charge, with the approval of defendant. Further, the court reinstructed on all three charges, pursuant to the jury's request, and included in its second charge a definition of cause. The defendant did not object to the second instruction and his argument is waived. Williams, supra. XI THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED A (SIC) JURY IN SUCH A MANNER THAT THE JURY COULD MAKE AN INFERENCE ON AN INFERENCE WITH RESPECT TO THE CULPABLE MENTAL STATE IN THIS CASE. Defendant contends that the following instruction given by the trial court allowed the jury to impermissibly stack inferences: - 17 - If a wound is inflicted upon a person with a deadly weapon in the manner calculated to destroy life, the purpose to kill may be inferred from the use of the weapon. The record reflects that defendant never objected to the trial court's instruction. Defendant cannot now raise the argument for the first time on appeal. Williams, supra. The assignment of error is overruled. XII THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO ENTER A JUDGMENT OF ACQUITTAL AS THERE IS INSUFFICIENT EVIDENCE TO PERMIT A RATIONAL FACTFINDER TO RETURN A VERDICT OF GUILTY AS TO THE OFFENSE OF VOLUNTARY MANSLAUGHTER. In his twelfth assignment of error defendant argues that the trial court should have acquitted him because insufficient evidence existed as to the element of provocation contained voluntary manslaughter. Essentially, defendant argues the trial court should not have instructed the jury on voluntary manslaughter because some evidence of the mitigating circumstance did not exist and he should have instead been granted an acquittal on aggravated murder and murder. Voluntary manslaughter, R.C. 2903.03, is a lesser included offense to murder. State v. Muscatello (1978), 55 Ohio St. 2d 201. Voluntary manslaughter is an inferior degree of murder for "its elements are *** contained within the indicted offense, except for one or more additional mitigating elements. ***." State v. Deem (1988), 40 Ohio St. 3d 205, 209. Voluntary - 18 - manslaughter consists of knowingly causing the death of another "while under the influence of sudden passion or any sudden fit of rage *** brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the *** [offender] into using deadly force ***." R.C. 2903.03(A). The element of provocation mitigates the offender's culpability. Muscatello, supra, at paragraph 2 of the syllabus. "Some evidence of the mitigating circumstance *** described in R.C. 2903.03" entitles appellant to the lesser included instruction. Muscatello, supra, at 204. (Emphasis added.) "Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances the surround him at the time." State v. Mabry (1982), 5 Ohio App. 3d 13, paragraph five of the syllabus; State v. Deem (1988), 40 Ohio St. 3d 205. The record in this case contains some evidence which showed that defendant was under the influence of sudden passion or in a sudden fit of rage brought on by provocation occasioned by the victim. Therefore it was not error for the trial court to given the voluntary manslaughter instruction. - 19 - The record shows that a violent argument occurred between the defendant and the victim. During the course of this argument, the victim grabbed the defendant by the seat of his pants and threw him out of the front door and onto the sidewalk. The record shows defendant suffered a broken wrist as a result. The defendant testified that the victim continued to torment him and at one point the victim picked up the defendant, shook him, hit him and stated, "I'll take care of you and your punk ass dog now." The defendant stated that the victim took his puppy by the neck and ran out of the door towards his car. The defendant, with his father's gun in his possession, stepped outside and saw that the victim had his puppy by the neck. Defendant testified that he thought the victim was going for a gun and would injure himself and the puppy. Defendant stated he then shot the defendant. The instruction on voluntary manslaughter was supported by sufficient evidence. We believe the incidents that led to the shooting were reasonably sufficient, as a matter of law, to incite or arouse defendant into shooting the victim. The instruction was supported by the evidence and properly given. The assignment of error is overruled. XIII THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE AS TO THE CAUSE OF DEATH IS BASED UPON POSSIBILITIES. - 20 - In his last assignment of error, defendant argues his motion for acquittal was improperly denied because insufficient evidence exists as to the cause of the victim's death. We disagree with the defendant's contention. The record is clear that the cause of death resulted from gunshot wounds of the trunk, right hip and right thigh with perforations of left iliac vessels. It was undisputed at trial that defendant fired the gunshots that caused the death of the victim. The assignment of error is overruled. Judgment affirmed. - 21 - 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 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. PATTON, J. AND SPELLACY, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .