COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59988 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARCIA REDDING : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-246,603 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Bldg. The Justice Center Suite 1016 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J., The defendant-appellant, Marcia Redding ("appellant"), appeals from her conviction of one count of murder (R.C. 2903.02) with a gun specification./1\ The victim, Calvin Redding, Sr. ("victim"), was the appellant's husband. The victim died as the result of five gunshot wounds to the head and neck. The facts follow: Cuyahoga County Deputy Coroner Sreenivasa Murthy testified that the victim died as the result of three gunshot wounds to the head and ruled the death a homicide. The victim was shot a total of five times, twice in the back of the neck and three to the head. The coroner testified that the shots to the back of the neck were from a distance of more than two and one-half feet. These two shots were non-lethal but had a paralyzing effect. The other three shots were fired at a much closer range with one shot actually fired from a distance of a few inches from the victim's head. These shots hit the top of the victim's head, the right side of his skull and his right temple. Dennis Ranc ("Ranc"), the victim's boss, testified that the victim was a very hard-working and reliable employee. On the morning of his murder, the victim failed to report to work. Out of concern, Ranc phoned the victim's home at 10:00 a.m. and Calvin, Jr. answered. After inquiry, Calvin, Jr. informed Ranc /1\ The appellant was indicted and tried jointly with her son, Calvin, Jr. Both were convicted of murder. Calvin, Jr. separately appeals his conviction. - 3 - the victim had already gone to work. When the victim still had not reported to work, Ranc again phoned at 1:00 p.m. and Calvin, Jr. told him that "he hadn't heard anything." (Tr. 162.) Ranc made one last attempt at 5:00 p.m. and spoke with appellant. According to Ranc, the appellant was "very upset" and "worried that he had not come to work." (Tr. 163.) Ranc further testified that the victim did not like guns. Patrolman Jerome Robinson ("Ptl. Robinson") received a phone call at 9:37 p.m. the night in question from a male later identified as Larry Ford ("Ford"), the appellant's brother. Ford informed Ptl. Robinson that his sister "had shot and killed her husband ***." (Tr. 279.) Ptl. Robinson and his partner proceeded to the address given by Ford. Once inside, the appellant was placed under arrest and was read her rights. She confessed to killing the victim and led the police to the murder weapon, which was placed under a sofa pillow. The gun, loaded with three live rounds and a box of forty-two live rounds, were discovered. She stated she and the victim engaged in a verbal argument. This prompted the victim to retrieve the murder weapon from their dresser drawer. The victim, however, placed it on the table and "she picked it up." (Tr. 287.) Then the victim allegedly "pushed her down on the bed." (Tr. 286.) She then fired the gun and it just kept firing after she pulled the trigger. (Tr. 288.) Ptl. Robinson further testified he did not see any bruises or other marks on the appellant. - 4 - Det. Melvin Goldstein ("Det. Goldstein"), currently retired from the Cleveland Police Department, was also present on the scene. He stated that rigor mortis had already set in the victim's body upon his arrival. Det. Goldstein explained that rigor mortis sets in after eight or more hours of death. The victim was lying face down in a puddle of blood with his arms at his side and his feet crossed. He was in a small room in the basement, known as the victim's tool room, which measured approximately fourteen feet by ten feet. Det. Goldstein investigated the scene and concluded that there was no sign of a struggle and no sign of the victim being dragged from one spot to another after he met his demise. After the appellant was explained her rights, she stated she "got into a domestic argument with her husband, and as a result of that argument, she shot him." (Tr. 350-51.) After a visual inspection of the scene, no spent shell casings were recovered. Det. Parker Adrine ("Det. Adrine") of the Cleveland Police Department, Homicide Unit, testified that he did not see any bruises or marks on the appellant. He also stated the appellant told him she did not have any bruises or other marks. The appellant was transported to the police station where she was again read her rights. Det. Goldstein took a statement from her which was indeed signed by the appellant and admitted into evidence. In her statement, she told of a verbal argument - 5 - she had with the victim in the early morning hours of the day in question. The victim allegedly pushed her on the couch down- stairs and threatened her with a gun. He, at some point, put the gun down and they both grabbed for the gun and she "took the safety off." The victim proceeded towards her "and just then the gun fired *** and [i]t just kept on firing." The appellant "just got scared" and dragged the victim's body into the tool room and cleaned up the basement and wiped the victim's head with a kleenex. The appellant then went to work from 10:00 a.m. to 4:00 p.m. Upon her arrival at home, she called her brother, Ford, and told him what happened. The appellant and her daughter, Sanya, then went to the appellant's parent's home. Other siblings had already congregated there. Significantly, in response to the question asked by Det. Goldstein while in custody at the police station - had she ever had trouble with her husband before - she answered that she had trouble once "about two years ago" when he "put me and my kids out of the house" and she called the police. Almost four months later the appellant's son, Calvin, Jr., confessed to killing the victim. The confession came just as the appellant was about to go to trial. The day after Calvin, Jr. confessed, Det. Goldstein wished to contact his younger sister, Sanya, who was home the morning of the shooting. Sanya and her grandfather voluntarily went to the police station and Sanya offered a written statement. - 6 - Sanya testified at trial that on the morning in question she awoke to loud arguing between the appellant and the victim. She walked into Calvin, Jr.'s bedroom. He was also awake. Sanya stated Calvin, Jr. hugged her and told her he loved her, then proceeded downstairs to "see what was wrong." (Tr. 217.) Sanya stated she heard gunshots in the basement. A little while later the appellant came upstairs and told Sanya to get ready for school. Calvin, Jr. then came back upstairs as Sanya was getting ready for school. Sanya then left for school without asking any questions. According to Sanya's testimony, Calvin, Jr. told her he was the one, not the appellant, who killed the victim. This was allegedly told to her at the victim's funeral. Bene Woodruff ("Woodruff"), Calvin Jr.'s ex-girlfriend and the mother of his child, testified that Calvin, Jr. came over to her house the day in question and told her "he had shot his father because his father was beating up on his mother." (Tr. 202.) Woodruff did not tell the police that Calvin, Jr. killed the victim until approximately four months later because she "didn't want to get in it." (Tr. 209.) The state also brought in character witnesses who testified that the victim was not violent and was actually soft-spoken and kind. Further, these witnesses testified that he loved his children and would have done anything for his son. - 7 - The appellant testified in her behalf. She averred that she had been physically abused by the victim for a number of years prior to his death. He apparently had beaten her and Calvin, Jr. on a somewhat frequent basis. The appellant stated she confessed to the murder because she wanted to protect her son. The appellant's version of events at trial changed from her version at the time she offered her written statement. At trial, the appellant testified that the victim became enraged because of the lunch she had fixed for him. He began calling her names and screaming and shouting. The appellant told the victim to leave her alone and went into the bedroom. The victim followed her into the bedroom and pushed her on the bed. The victim then opened a drawer and pulled out a gun./2\ She ran and he caught her and threw her down the steps. Once in the basement, the victim allegedly began choking the appellant to the point where she could not breathe. At this point, Calvin, Jr. came downstairs and jumped on the victim's back. She then heard gunshots and the victim was dead. The appellant further asserted that the victim was shot in the "big room" in the basement and then dragged into the small tool room so that Sanya would not see him. The appellant then told Sanya and Calvin, Jr. to go to /2\ Other witnesses at trial testified that the appellant kept this gun in her purse at all times and used it for protection. Also, the testimony revealed that the appellant vehemently did not like guns. - 8 - school. She then proceeded to work. After work she went to her mother's house and confessed to her brother, Ford. Defense counsel then proffered the expert testimony of Dr. Lynn Rosewater ("Dr. Rosewater"). Dr. Rosewater explicated the battered woman syndrome as it pertained to the appellant and post-traumatic stress disorder as it related to Calvin, Jr. The trial court disallowed expert testimony of the battered woman syndrome because the appellant was not claiming self-defense. Instead, her defense was that she did not kill the victim. The trial court, however, allowed Dr. Rosewater to testify regarding post-traumatic stress disorder on behalf of Calvin, Jr. The appellant was found guilty of murder and now appeals, assigning ten errors for our review./3\ I. In her first assignment of error, the appellant argues the state failed to comply with discovery requests. Specifically, she contends the state did not produce certain oral statements she made to police officers at her home and while in custody. Apparently, the appellant told Det. Adrine that she did not have any injuries in response to his question. Det. Adrine was prepared to photograph any injuries, if she had them. (Tr. /3\ See Appendix. - 9 - 260./4\) A mug shot of the appellant, which was admitted into evidence, revealed the absence of injuries to her face and neck. The appellant does not state or otherwise demonstrate she was prejudiced by this admission. The Ohio Supreme Court has held that: Where, in a criminal trial, the prosecution fails to comply with Crim. R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim. R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim. R. 16(E)(3) by permitting such evidence to be admitted. State v. Parson (1983), 6 Ohio St. 3d 442, syllabus. The relevant portion of Crim. R. 16 provides: (A) Demand for discovery. Upon written request each party shall forthwith provide the discovery herein allowed. Motions for discovery shall certify that demand for discovery has been made and the discovery has not been provided. (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. (a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect /4\ The appellant also cites four separate transcript pages which refer to other oral statements not furnished to the defense. These oral statements are not material to the case. Our review of the record does not in any way reveal prejudice by the admission of these certain statements or any impropriety by the state or the trial court. - 10 - and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: * * * (ii) Written summaries of any statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer; ***. First, the record does not demonstrate that the state's failure to furnish certain oral statements was willful. Quite the contrary. The appellant was provided with discovery and was furnished the name of Det. Adrine. Second, the appellant has not demonstrated that foreknowledge of the statements would have helped the defense. The statements were not damaging to the defense. The appellant's photograph was admitted into evidence. Hence, the jury could make an independent determination regarding the lack of injuries. Moreover, defense counsel was able to attempt to impeach Det. Adrine during cross-examination when he inquired of the Detective whether he could see under the appellant's clothing as to any injuries. (Tr. 266.) Det. Adrine's response was in the negative. (Tr. 267.) Third, the appellant has clearly not demonstrated any resulting prejudice. In fact, prejudice is not even alleged in the appellant's brief. See, Id. at 445. Accordingly, the first assigned error is overruled. - 11 - II. In her second assignment of error, the appellant asserts the trial court erred in disallowing expert testimony on the battered woman syndrome. In State v. Koss (1990), 49 Ohio St. 3d 213, paragraph three of the syllabus, the court held: Admission of expert testimony regarding the battered woman syndrome does not establish a new defense or justification. It is to assist the trier of fact to determine whether the defendant acted out of an honest belief that she is in imminent danger of death or great bodily harm and that the use of such force was her only means of escape. Ohio has adopted a subjective test to determine whether a particular defendant acted in self-defense. Id. at 215 (emphasis added). Because the assertion of the battered woman syndrome is not a new defense, but is inextricably related to the theory of self-defense, one must necessarily assert self-defense to the crime charged. See, Id.; cf. State v. Rice (June 6, 1991), Cuyahoga App. No. 58643, unreported, at 24-25. In this case the trial court properly excluded the proffered expert testimony as it related to the appellant. The appellant did not assert the theory of self-defense. She clearly defended on the ground that she did not commit the murder of the victim. Hence, she was properly precluded from introducing evidence regarding the battered woman syndrome. Accordingly, the second assigned error is overruled. - 12 - III. In her third assignment of error, the appellant asserts the denial of due process when the court constructively amended the indictment to charge upon a theory of aiding and abetting. Specifically, she contends the theory of aiding and abetting was not presented by way of indictment nor was it argued. Hence, she had no notice of the specific charge against her. This contention must fail. The purpose of an indictment is to give notice to the accused the name and identity of the crime charged. Id. at 77, citing Boyton v. Sacks (1962), 173 Ohio St. 526, 529; Holt v. State (1923), 107 Ohio St. 307; cf. Lockett v. Ohio (1978), 438 U.S. 586, 597 (the murder conviction of the defendant as an aider and abettor of the actual killer is not invalid as violating due process when the indictment charged murder and the jury was also instructed on the theory of aiding and abetting.) Further, a jury instruction regarding complicity may be given if the evidence at trial reasonably indicates that the defendant was an aider and abettor rather than a principal. Hill v. Perini (C.A. 6, 1986), 788 F. 2d 407 (construing Ohio law). Hence, a defendant, through his attorney, has legal notice of the charge against him even though the indictment does not charge complicity and has been tried as a principal. Id. In this case, the appellant was indicted for one count of murder (R.C. 2903.02), to wit: purposely causing the death of - 13 - Calvin Redding, Sr. The indictment also carried a gun specifi- cation. The appellant was found guilty as charged in the indictment. Although the record reveals the jury was instructed on the theory of aiding and abetting, she, along with her son, was found guilty of murder. The indictment was not construc- tively amended. Both, at different times, confessed to killing the victim. They were tried jointly. The indictment put the appellant on notice of the name and identity of the crime charged. Hence, the notice requirement for due process purposes was sufficiently satisfied. Accordingly, the third assigned error is overruled. IV. In her fourth assignment of error, the appellant argues she again was denied due process when the trial court, after the jury began deliberations, improperly responded to a jury question. Specifically, she contends the trial judge gave a misleading instruction on the definition of aiding and abetting which conflicted in substance to the original instruction. This contention must fail. The record discloses that the original instruction was included verbatim in the response to the jury question. The record does not reveal that the trial court misled the jury in - 14 - expanding the definition of aiding and abetting. The trial court attempted to dispel any confusion. A. The appellant also argues the trial court improperly instructed the jury on the culpable mental state required. Specifically, she argues the court instructed the jury that knowingly or purposely is the requisite mental state for aiding and abetting in the murder of the victim when in fact purposely is the requisite state of mind. In this case, the jury charge on murder, when read in conjunction with the charge of aiding and abetting was improper. The court properly defined "purpose." (Tr. 909-910.) However, the court improperly defined aiding and abetting as knowingly or purposely encouraging or assisting another in the commission of the crime. (Tr. 918, 940.) The murder statute, R.C. 2903.02, prohibits a person from "purposely causing the death of another." "Purpose" under R.C. 2901.22(A)/5\ is the specific intent to cause a certain harm. The Ohio complicity statute, R.C. 2923.03, under which appellant was charged as an aider and abettor, provides in part: /5\ R.C. 2901.22: (A) A person acts purposely when it is his specific intention to cause a certain result, or when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. - 15 - (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. Significantly, the appellant was found guilty of murder. The charge to the jury regarding murder was entirely proper. Any error regarding the inclusion of the word "knowingly" in the aiding and abetting charge was harmless beyond a reasonable doubt in light of the totality of the charge to the jury. The appellant relies on this court's decision in State v. Mabry (1982), 5 Ohio App. 3d 13, in support of her proposition. However, although the Mabry court reversed the defendant's conviction in part based upon an improper jury instruction, it did so for a different reason. In particular, the jury was charged on aiding and abetting, including the culpable mental state of "knowingly" as well as "purposely." Id. at 15. The underlying crime was aggravated attempted murder. This court did not find this instruction objectionable or reversible, but did find reversible the fact the trial court did not properly instruct on the inferences which may be drawn regarding the purpose to kill. Id. at 16. B. The appellant also contends that the charge on aiding and abetting improperly created a mandatory instruction. She argues the instruction allowed her to be convicted as an aider and - 16 - abettor without having a purpose to kill so long as she acted with another for a common purpose. The instruction in this case read: In this case, if you find that the defendant knowingly or purposely aided, helped, assisted, encouraged, directed or acted in concert with another for the purpose of committing a crime, that defendant is regarded as if he is the principal offender and just as guilty as if he or she personally performed every act constituting the offense. The law is that when two or more persons have a common purpose to commit a crime, and one does one part and a second performs another, those acting together are equally guilty of the crime. Now, let me amplify that for you, ladies and gentlemen. In response to the specific questions that you opposed [sic] to the Court. A jury can infer an aider and abettor's purpose to kill where the facts show the participants in a felony entered into a common design and either the aider or abettor knew that an inherently dangerous instrumentality was to be employed to accomplish a felony or the manner of its accomplishment would reasonably be likely to produce death. You are further instructed, ladies and gentlemen, in this regard, that conviction as an aider or abettor in the commission of a crime requires proof beyond a reasonable doubt that the accused advised, hired, incited, commanded, counseled or otherwise participated as a co- conspirator or had some connection with the transaction preceding its occurrence, other than merely seeing the crime being committed. A defendant's mere presence is not sufficient to make him or her an accomplice. He must have done something more. He must have incited or assisted or encouraged the other person to do the act in one of the ways mentioned. (Tr. 939-41.) - 17 - The appellant contends the trial court's instruction mandated the jury to return a guilty verdict if it found a purpose to kill in either defendant. This is not true. The instruction reads that the defendants "acting together are equally guilty of the crime" if found to be acting together for a common purpose. The appellant erroneously interprets the instruction and chooses to analyze it in a vacuum. C. Again, the appellant argues that a portion of the jury instruction created an unconstitutional mandatory presumption. In particular, she contends the charge that the jury could infer an aider and abettor's purpose to kill under certain circumstances was "in the nature of a mandatory presumption." (See Appellant's Brief, p. 22.) A review of the totality of the instruction qualifies this inference by explicating the level of proof required and the law of aiding and abetting. (Tr. 940-41.) The instruction is clearly not "in the nature of a mandatory presumption." D. Last, the appellant contends that the trial court erroneously expanded the charge of aiding and abetting to include conspiracy. This contention is without merit. A review of the charge reveals the court correctly instructed on the theory of aiding and abetting. In toto, the charge was correct, save for the word "knowingly," and the mere - 18 - mention of the word "co-conspirator" within the context of the definition of an aider and abettor did not convert the jury charge into one of conspiracy. Accordingly, the fourth assigned error is overruled. V. In her fifth assignment of error, the appellant argues her constitutional rights were violated when the bailiff communicated to the jury. In particular, the appellant claims she was prejudiced when the bailiff communicated with the court during jury deliberations, then "communicated with the jury in some unknown fashion." (See Appellants Brief, p. 27.) This, she claims, was presumptively prejudicial. R.C. 2945.33 reads in relevant part: When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. The court, except in cases where the offense charged may be punishable by death, may permit the jurors to separate during the adjournment of court overnight, under proper cautions, or under supervision of an officer. Such officer shall not permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. Such officer shall not communicate to any person, before the verdict is delivered, any matter in relation to their deliberation. (Emphasis added.) * * * "Misconduct by the court's bailiff in communicating to the jury during its deliberations, a violation of R.C. 2945.33, is - 19 - presumptively prejudicial to a defendant who is later found guilty. [Citations omitted.]" State v. Lane (1988), 48 Ohio App. 3d 172, 175. The record in this case reveals the jury was sent home in the afternoon of May 8, 1990 and reconvened at 9:00 a.m. on May 9, 1990. Apparently, three questions were submitted to the court on May 8, but the court was unavailable to answer the questions until the morning of May 9. Apparently, on May 8, prior to discharging the jury for the day, "there was some conversation between the Court and the bailiff *** [a]nd then there was some conversation between the bailiff and the jury *** [a]nd then the jury left at approximately 1:30." (Tr. 931-32.) The conversations were out of the presence of counsel. A request for an individual sequestered voir dire was denied by the court. The record does not demonstrate misconduct on the part of the bailiff and the appellant has failed to present any evidence aliunde of such misconduct. Sudman v. Cleveland Electric Illuminating Co. (Nov. 29, 1990), Cuyahoga App. Nos. 57586 and 57587, unreported, at 16 (appellant failed to articulate the nature of the alleged misconduct and failed to present evidence aliunde that misconduct occurred). The cases cited by the appellant all clearly indicate misconduct by the bailiff. Lane, supra, at 174 (the bailiff repeatedly told the jury to "just deliberate the evidence," which pressured her to reach a verdict. Further, the bailiff "answered with gestures, when asked about - 20 - the possibility of a lesser offense"); State v. King (1983), 10 Ohio App. 3d 93, 96 (misconduct was "virtually conceded" by the bailiff in communicating to the jury "the effects and results if the jury could not agree upon a verdict); State v. Adams (1943), 141 Ohio St. 423, 424 (the bailiff told the jury in response to the foreman's question that "[y]ou must reach a decision if you have to stay here for three months."). Clearly, no such misconduct was present in this case. Accordingly, the fifth assignment of error is overruled. VI. In her sixth assigned error, the appellant contends she was denied due process when the court denied counsel's request to individually poll the jury after the verdict. The court, instead, conducted a general poll of the jury. Crim. R. 31(D) reads: (D) Poll of jury. When a verdict is returned and before it is accepted the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged. Indeed, the jury was polled. The members of the jury displayed a unanimous guilty verdict by a show of hands. The jury was asked again and the response was the same. The record reveals defense counsel requested an individual poll because he perceived a juror "had a reservation in raising her hand, ***." (Tr. 945.) This alone does not require an - 21 - individual polling, nor does it require sending the jury back for further deliberations or discharging the jury. See State v. Brooks (Oct. 13, 1983), Cuyahoga App. No. 46102, unreported, at 2. Accordingly, the sixth assignment of error is overruled. VII. In her seventh assignment of error, the appellant argues the trial court improperly instructed the jury on the theory of aiding and abetting. The appellant's arguments echo those argued and addressed in Assignment of Error No. IV. For the reasons previously discussed, the seventh assigned error is overruled. VIII. In her eighth assignment of error, the appellant argues the trial court improperly instructed the jury with respect to defense of a third person. The self-defense theory was applicable only to the appellant's son, Calvin, Jr. First, the record is devoid of an objection. Hence, our inquiry must focus upon plain error. Second, we are unable to glean from the record or the appellant's brief how the instruction was erroneous and how it prejudiced the appellant, especially in light of the fact that she was not claiming self- defense. Accordingly, the eighth assigned error is overruled. - 22 - IX. In her ninth assignment of error, the appellant contends she was denied a fair trial when the state, during its case-in- chief, introduced a number of collateral matters. In particular, she argues that certain matters related to her son's, Calvin, Jr.'s, behavior was collateral and should not have been introduced. Evid. R. 608(B) reads in relevant part: (B) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibil- ity, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examina- tion of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) con- cerning the character for truthfulness or untruth- fulness of another witness as to which character the witness being cross-examined has testified. The matters now complained of were in fact inquired upon cross-examination. They included Calvin, Jr.'s suspension from school, his frequent absenteeism, violence and aggressive behavior toward his teacher and membership in a gang. These matters were probative of Calvin, Jr.'s truthfulness regarding his behavior toward the victim and the events surrounding the day in question. See State v. Workman (1984), 14 Ohio App. 3d 385. We cannot find that the trial court abused its discretion in allowing the state to cross-examine the appellant and Calvin, Jr. on these relevant issues. - 23 - On rebuttal, the state called Frank Nechyatal ("Nechyatal"), the assistant principal at Calvin, Jr.'s high school. Nechyatal testified to Calvin, Jr.'s fiery and defiant behavior at school. Because Calvin, Jr. has appealed separately, this contention is best left for his appeal. Nonetheless, Nechyatal's rebuttal testimony mirrored that of his testimony during the state's case-in-chief. Hence, no new matters were presented to the court and error, if any, was harmless beyond reasonable. Accordingly, the ninth assigned error is overruled. X. In her tenth assignment of error, the appellant challenges the sufficiency of the evidence. In particular, she argues that the only evidence of her guilt was a signed written confession that she killed the victim. She now essentially contends the jury should have believed she was merely covering up for her son. The standard for sufficiency is as follows: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. - 24 - Virginia [1979], 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. There was more than sufficient evidence before the jury to have convinced the average mind of the appellant's guilt beyond a reasonable doubt. The appellant confessed to police on more than one occasion to murdering the victim. She detailed she shot him five times in the head. The appellant also confessed to her brother, Ford. While the jury had before it Calvin, Jr.'s admittance to the crime, the jury nonetheless found sufficient evidence to convict them both of murder. The appellant has not demonstrated to this court that the evidence was insufficient as a matter of law. Accordingly, the tenth assigned error is overruled. Judgment affirmed. - 25 - 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 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. FRANCIS E. SWEENEY, P.J. HARPER, J., CONCUR. JUDGE JOHN T. PATTON 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. -1- APPENDIX I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE PROSECUTOR FAILED TO FURNISH DISCOVERY WITH RESPECT TO STATEMENTS MADE BY THE DEFENDANT TO LAW ENFORCEMENT OFFICERS. II. THE DEFENDANT WAS DENIED HER RIGHT TO PRESENT A DEFENSE WHEN THE COURT DISALLOWED ANY TESTIMONY CONCERNING THE BATTERED WOMAN SYNDROME. III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO CONSTRUCTIVELY AMEND THE INDICTMENT TO CHARGE UPON A THEORY OF AIDING AND ABETTING WHEN NONE WAS ALLEGED BY THE PROSECUTION. IV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO MODIFY ITS INSTRUCTIONS ON THE SUBJECT OF AIDING AND ABETTING WHEN IT ANSWERED A QUESTION FROM THE JURY REQUESTING THE DEFINITION OF AIDING AND ABETTING. A) THE COURT LESSENED THE BURDEN AND CULPABLE MENTAL STATE NEEDED TO BE PROVEN BY MAKING IT KNOWINGLY. B) THE INSTRUCTIONS IMPROPERLY MANDATED A CONVICTION WITH THE FINDING THAT THERE WAS A COMMON PURPOSE ENTERED INTO BETWEEN THE DEFENDANTS. C) THE COURT UNCONSTITUTIONALLY INSTRUCTED THE JURY WITH RESPECT TO FINDING A PURPOSE TO KILL. D) THE COURT UNCONSTITUTIONALLY EXPANDED THE SCOPE OF AIDING AND ABETTING BY CONSTRUC- TIVELY AMENDING THE CHARGE TO INCLUDE A CONSPIRACY. V. THE DEFENDANT WAS DENIED HER CONSTITUTIONAL RIGHTS WHEN THE COURT FAILED TO TAKE ANY CORRECTIVE ACTION WITH RESPECT TO COMMUNICATIONS MADE BY THE COURT'S BAILIFF DURING THE DELIBERATION OF THE JURY IN RESPONSE TO A QUESTION BY THE JURY. - 2 - VI. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO CONDUCT AN INDIVIDUAL POLLING OF THE JURY AT THE REQUEST OF THE DEFENDANTS. VII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY INSTRUCTED THE JURY ON THE ISSUE OF AIDING AND ABETTING IN ITS GENERAL INSTRUCTIONS TO THE JURY. VIII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY INSTRUCTED THE JURY WITH RESPECT TO THE DEFENSE OF A THIRD PERSON. IX. THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF THE FACT THAT COLLATERAL MATTERS WERE INTRODUCED IN THE TRIAL OF THIS CASE BY THE PROSECUTOR AND THEN THE PROSECUTOR WAS PERMITTED TO REBUT ANSWERS GIVEN TO QUESTIONS ON COLLATERAL MATTERS. X. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL. .