COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60020 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RICHARD RUSSELL : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-245001 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, CUYAHOGA COUNTY PROSECUTOR BY: JOHN KOSKO ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant BETTY T. HARVEY JOHN A. FATICA ASSISTANT PUBLIC DEFENDERS THE MARION BUILDING 1276 WEST THIRD ST., ROOM 307 CLEVELAND, OHIO 44113-1569 -2- SPELLACY, J.: On December 28, 1989, defendant-appellant Richard Russell ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Felonious Assault, in violation of R.C. 2903.11, with firearm and violence specifications, and one count of Carrying a Concealed Weapon, in violation of R.C. 2923.12. At his arraignment on January 25, 1990, appellant pleaded not guilty to the charges set forth in his indictment. On May 4, 1990, appellant's jury trial commenced. The first witness to testify for the State was Andre D. Nash. Andre Nash testified that on October 4, 1989, he was working the second shift at Tavern Containers, which was from 3:30 P.M. to 12:00 Midnight. After work, he drove to East 149th Street and Kinsman Road in the City of Cleveland, Ohio, in order to pick up his common law wife, Paula Nash, and their 22 month old son. They were visiting Paula Nash's mother on that particular night. When they left the area of East 149th and Kinsman Road, Paula Nash was driving their 1984 burgundy "Ninety-Eight" down Kinsman Road toward the fork at Union Avenue. As they approached the fork, Andre Nash observed a green automobile "wobbling" and making a U-turn onto Union Avenue. Andre Nash told his wife to try to pass the green car so it would not hit them. She was able to do this at East 131st Street and Hamilton. Andre Nash further testified that they were driving in front of the green car when he heard a bump from behind. He looked -3- around and saw the green car hit a white car and veer off. Suddenly, the green car struck his car on the driver's side. Instead of stopping after the collision, the green car took off down the street. Andre and Paula Nash followed the green car in order to get a license plate number or someone's name. Andre Nash stated that he observed the green car stop in front of a cleaners and the Sar-Ru Bar on East 125th Street. Thus, they pulled next to the green car and parked. Andre Nash testified that he exited his car, walked up to the green car and opened the driver's door. He positively identified appellant as the driver of the green car. Andre Nash asked appellant why he hit his car, but appellant mumbled and cursed at him. Andre Nash claimed that after they exchanged some words, appellant grabbed what appeared to be a "little black stick" and struck him on the side of his head with it. At that point, Andre Nash hit appellant with his fist and a tussle ensued. Eventually, the two were standing outside appellant's car when Paula Nash ran up and told Andre Nash not to hit appellant anymore, because appellant was older and could have a heart attack. Andre Nash stated that he stopped struggling with appellant and demanded that he walk back and look at the damage he caused to his car. When the two men separated, appellant staggered into the middle of the street. By this time, the other car, which appellant also struck, had arrived on the scene and parked. Andre Nash testified that he then heard the driver of the other -4- car scream, "He got a gun." Andre Nash looked at appellant and saw him pull out a gun. As appellant pulled out the gun, Nash began running toward a house next to the cleaners. Just as he was running, he heard two gunshots and thought he saw a bullet hit the house he was running toward. While Andre Nash ran behind the nearby house, Paula Nash was in the Sar-Ru Bar calling the police and his son was still in the car. Andre Nash testified that he ran behind the house and through the other yards and arrived at the Sar-Ru Bar. The security guard, Charles Billups, nicknamed "Big Man", let Andre Nash into the bar and closed the door. No one really knew where appellant was. Andre Nash told Charles Billups that his son was still sitting in the car. Charles Billups left the bar, went to the car and retrieved Nash's son without any problems. Andre Nash remained in the bar with his wife and child until the police arrived and took appellant away. The next witness to testify for the State was Paula Nash, who basically corroborated the testimony of Andre Nash. She testified that she was driving on that particular night, because her husband was tired from work. She said that after appellant's car hit theirs, they followed him, in order to get a license plate number. Eventually, they parked their car next to appellant's car and Andre Nash approached appellant. Paula Nash stated that she observed appellant and Andre Nash hit each other and tussle in appellant's car. Andre Nash -5- proceeded to pull appellant out of the car, and Paula Nash ran up and told him to stop, because appellant was older. Andre Nash instructed Paula Nash to go to the bar and call the police. Paula Nash testified that as she was walking away, she heard one of the occupants of the other car holler, "He got a gun." Paula Nash looked back, saw appellant in the middle of the street, and noticed that Andre Nash was running away. As Andre Nash was running, Paula Nash observed appellant pointing the gun in Andre Nash's direction and shooting. Paula Nash actually saw fire exiting the muzzle of appellant's gun. Paula Nash knew she could not return to the car, thus, she continued to the bar and called the police. Soon after, Andre Nash arrived in the bar and Charles Billups retrieved their son from the car. The three of them waited in the bar until the police arrived. The State then called Charles Billups, the bouncer at Sar-Ru Bar, to testify. Charles Billups testified that during the very early hours of October 5, 1989, a girl and her boyfriend entered Sar-Ru Bar and told him that their baby was in their car and that a man outside had a gun. While Charles Billups went outside and grabbed the baby, he saw appellant standing with a gun in his hand. He then observed appellant walk to the back of the bar and hide behind a dumpster. Charles Billups further testified that he had previously seen appellant on several occasions, since he was a regular customer at Sar-Ru Bar. After the incident in question, appellant would often enter Sar-Ru Bar carrying a .38 caliber gun. -6- Eddie S. Foster next testified for the State that he was the driver of the other car which appellant struck. He was driving the car with three passengers when he observed appellant's car speeding at about 65 M.P.H. All of a sudden, he saw appellant's green car strike the Nashes' car and then smash into the 1 passenger side of his own car. Just like the Nashes, Eddie Foster followed appellant as he drove away. Eddie Foster further testified that he stopped his car and saw Andre Nash pull appellant out of his car. Immediately thereafter, appellant staggered and fell to the ground. Eddie Foster claimed that as appellant fell, he pulled out a gun and began shooting toward Andre Nash. While appellant was shooting, Eddie Foster ran down the street toward the bar and the cleaners. After things cooled down, he returned to his car and drove to call the police. The State then presented the testimony of Officer Carl M. Walker from the Cleveland Police Department. Officer Walker testified that on October 5, 1989, he was working out of the K-9 Division, when he received a radio broadcast concerning shots fired in connection with an automobile accident. Officer Walker arrived on the scene within one minute. When Officer Walker arrived, a man standing by the door at Sar-Ru Bar indicated that there was a man with a gun in the back of the bar. As he got to the back of the bar, he noticed 1 There is a discrepancy in the evidence as to whether appellant collided with the Nashes' car first or with Eddie Foster's car first. -7- appellant peering around the corner of the bar. Upon Officer Walker's instructions, appellant stepped out and placed his hands on the wall. Officer Walker then patted down appellant and confiscated a .38 caliber handgun from his front pants pocket. Officer Walker stated that he inspected appellant's gun. It had four live rounds and one spent round. Officer Walker then arrested appellant and advised him of his constitutional rights. Officer Walker testified that appellant smelled of alcohol and appeared to be intoxicated. Officer John Traine then testified that he and his partner assisted Officer Walker in the arrest of appellant. According to Officer Traine, appellant appeared to be highly intoxicated and had a strong odor of alcoholic beverage emitting from his mouth. Appellant's speech was slurred and his eyes were bloodshot. The last witness to testify for the State was Detective George G. Geletka who had appellant's gun tested. The test of appellant's gun revealed that it was operable. At this point, the State rested. For the defense, appellant testified on his own behalf. Appellant stated that on October 4, 1989, at approximately 11:00 P.M. or 11:30 P.M., he went to a nearby club in order to buy chicken wings. While waiting for his chicken wings, appellant consumed one beer. After he got his chicken wings, he went to his car, got in, and placed the chicken wings and his gun on the front seat. The gun layed between himself and the chicken wings. Appellant further testified that he was driving down Union -8- Avenue when he noticed that a maroon car was parked near his driveway. Appellant slowly drove by the maroon car which then began to drive off. All of a sudden, a white car burst onto the scene and appellant found himself driving between the two cars. Appellant claimed that the maroon car was driven by Andre Nash and it did not have its lights on. Appellant claimed that he did not stop, because he thought an accident would occur. Thus, he sped up so he could get away from the two cars. However, as he sped up, he hit the white car driven by Eddie Foster. After hitting the white car, appellant drove to a well-lit area in order to assess the damages. Appellant parked his car in front of the Sar-Ru Bar and the cleaners. Appellant stated that he remained in his car and rolled down his window in order to speak to Andre Nash, who was running quickly up to his car. Appellant claimed that Andre Nash was screaming at him to get out of the car and was messing around with the driver's door. All of a sudden, the car door opened, Andre Nash grabbed appellant around the neck, and started punching him. Appellant said that Andre Nash tried to pull him out of the car but he was able to hold on by grabbing the steering wheel. Appellant further testified that Andre Nash ran back to his car. At that point, appellant stepped out of his car and tripped on something, causing him to fall flat on his back in the middle -9- of the street. According to appellant, he had his gun in his hand and the fall caused the gun to discharge. After the gun went off, appellant got up and saw that Andre Nash was standing next to a house across the street. Appellant stated that Andre Nash had a gun, therefore, he ran behind the bar to hide from him. Appellant then waited for the police to arrive. Appellant claimed that he carried his own gun because he had been victimized by criminals on several occasions. On that particular night, appellant was scared and thought he was in danger. He stated that he was not intoxicated and that his slurred speech was a result of a stroke he suffered several years before. After hearing all the evidence, the jury found appellant guilty of both counts. Subsequently, the trial court sentenced appellant to a term of three to fifteen years for the felonious assault conviction, plus three years consecutive for the firearm specification. Appellant was also sentenced to a term of one year for the carrying concealed weapon conviction. The trial court ordered said sentence to run consecutively to Count One. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED WHEN IT DID NOT INSTRUCT THE JURY ON THE OFFENSE OF AGGRAVATED ASSAULT IN LIGHT OF EVIDENCE PRESENTED AT TRIAL OF SERIOUS PROVOCATION, WHICH MITIGATES AND REDUCES THE OFFENSE CHARGED. -10- II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE INTENTIONAL MISCONDUCT OF THE PROSECUTOR IN REFERRING TO FACTS OUTSIDE THE RECORD, IMPERMISSIBLY BOLSTERING CREDIBILITY OF STATE'S WITNESSES BY PERSONALLY VOUCHING FOR THEIR CREDIBILITY, BY EXPRESSING HIS PERSONAL OPINIONS AND BELIEFS ABOUT THE EVIDENCE AND BY CHARACTERIZING TESTIMONY AS FALSE CONSTITUTE REVERSIBLE ERROR AND DENIED RICHARD RUSSELL A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OHIO CONSTITUTION. In his first assignment of error, appellant contends that the trial court erred in failing to instruct the jury on aggravated assault, an offense of inferior degree of felonious assault. Crim. R. 30(A) provides in pertinent part: A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. A failure to object before the jury retires constitutes a waiver of the alleged jury instruction error. State v. Underwood (1983), 3 Ohio St. 3d 12. In the instant case, appellant neither made a request to have the jury instructed on aggravated assault nor objected to the trial court's failure to charge the jury on said offense. In fact, appellant's counsel specifically stated that he did not anticipate any requests for such an instruction. The following colloquy was exchanged between the trial court and appellant's counsel: -11- THE COURT: Let the record reflect we're out of the presence of jury. Are there any Rule 30 requests at this point--obviously the defendant has not yet testified--on behalf of the defense or the state? MR. OWENS: Not at this time, judge. THE COURT: Do you anticipate any? MR. OWENS: No. THE COURT: I'm talking about are there are (sic) any requests for lesser included offenses? Do you envision that as a possibility, I don't know? MR. OWENS: No, Judge. THE JUDGE: All right. (Tr. 214-215). THE COURT: Let the record reflect we're out of the presence of jury. At the side bar, Mr. Owens, you had some consideration, I know, I asked if there were any Rule 30 requests before the charge was prepared and given and you indicated no. MR. OWENS: I did, Judge. THE COURT: What do you want to put on the record? MR. OWENS: The only thing I'm as relates to the instructions to the jury ***. (Tr. 374-375). We find that appellant's failure to object to the trial court's omission of an aggravated assault charge waived any claim of error relative thereto. -12- Appellant further argues that his counsel's failure to request a jury instruction on the offense of aggravated assault constituted ineffective assistance of counsel. When presenting an allegation of ineffective assistance of counsel, an appellant must show a substantial violation of an essential duty by that counsel. State v. Lytle (1976), 48 Ohio St. 2d 391. Also, on the issue of counsel's ineffectiveness, an appellant has the burden of proof, since a properly licensed attorney in Ohio is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In the instant case, appellant contends that his counsel violated an essential duty by failing to request a jury instruc- tion on the offense of aggravated assault. Aggravated assault under R.C. 2903.12 is an offense of a lesser degree to the offense of felonious assault under R.C. 2903.11. State v. Deem (1988), 40 Ohio St. 3d 205, 210-211. Aggravated assault contains elements which are identical to the elements defining felonious assault, except for the additional mitigating element of serious provocation. Id. In order for the trial court to charge the jury on aggravated assault, it is required that the jury could reasonably find that appellant acted in sudden provocation without time and opportunity for passion to cool. State v. Muscatello (1978), 55 Ohio St. 2d 201. We find that the evidence adduced at the trial in no way warranted that an instruction be given as to the offense of aggravated assault. The evidence is insufficient to demonstrate -13- that there existed serious provocation sufficient to incite appellant into using deadly force. Appellant and Andre Nash argued and there was a tussle, however, there is nothing indicative of serious provocation by Andre Nash sufficient to incite appellant to use deadly force. Appellant explicitly testified that after the two had a scuffle, Andre Nash returned to his car, while he sat in his car. The evidence clearly demonstrates that when appellant shot his gun, he and Andre Nash were separated and the two had already stopped fighting. Moreover, appellant never asserted at trial that he purposely shot at Andre Nash. The aggravated assault statute, set forth in R.C. 2903.12, states that "No person, while under the influence of sudden passion or in a sudden fit of rage, *** shall knowingly" cause or attempt to cause physical harm by means of a deadly weapon or dangerous ordnance. Appellant claimed that the gun discharged when he fell to the ground. Appellant never stated that he purposely shot at Andre Nash. Accordingly, if one was to believe appellant's testimony, we find that appellant was not entitled to an instruction on the offense of aggravated assault. We determine that appellant's counsel did not violate any essential duty to appellant by failing to request an aggravated assault instruction. Appellant's first assignment of error is without merit and is overruled. -14- Appellant argues in his second assignment of error that his conviction for felonious assault was against the manifest weight of the evidence. Specifically, appellant contends that the disparate testimonies of the State's witnesses supports the finding that the jury's verdict was against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the standard to be applied when addressing the issue of manifest weight of the evidence. The Martin court stated: The court, reviewing 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 overturned. Martin, supra, at 175. The weight of the evidence and credibility of witnesses are primarily an issue for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A jury is entitled to believe or not to believe the State's witnesses and/or the defense's witnesses. State v. Antill (1964), 176 Ohio St. 61. In this case, the record reveals that there were some inconsistencies in the testimonies of the State's witnesses. However, these inconsistencies were before the jury and it was entitled to weigh the conflicting evidence and consider the credibility of each witness. Upon a careful review of the record, we find that the jury did not lose its way and created such a manifest miscarriage of -15- justice that appellant's conviction for felonious assault must be reversed. We conclude that the jury's verdict was supported by some competent, credible evidence going to all the essential elements of the crime of felonious assault. Clearly, appellant knowingly attempted to cause physical harm to Andre Nash when he pulled out his .38 caliber handgun and fired it in his direction. We conclude that appellant's conviction was not against the manifest weight of the evidence. Appellant's second assignment of error is not well taken and is overruled. In his third assignment of error, appellant argues that the prosecutor engaged in prosecutorial misconduct during his closing arguments. Appellant claims that the prosecutor referred to facts outside the record; expressed personal opinions and beliefs about the evidence by bolstering the credibility of the State's witnesses; and improperly characterized his testimony as false. A reviewing court, in determining whether a prosecutor's remarks during closing arguments constitute prejudicial error, must decide whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St. 3d 13. The prosecution is normally entitled to a certain degree of latitude in closing arguments. Id. It must be clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found defendant guilty. United States v. Hasting (1983), 461 U.S. 499. Where it appears that prosecutorial comments constituted an -16- invitation to the jury to go beyond the evidence or were so flagrant as to incite the passions or prejudice of the jury, and thereby deny the accused a fair trial, prejudicial error may inhere. State v. Price (1979), 60 Ohio St. 2d 136, 140. Upon a careful review of the trial transcript, we find that the contested statements made by the prosecutor during closing arguments generally asserted the prosecutor's recollection of the evidence and his contentions about its significance. We are unable to conclude that his comments caused a manifest injustice or resulted in a high probability of changing the result. We find that the challenged statements constituted a proper summation by the prosecutor. Accordingly, we conclude that appellant was not prejudiced and denied a fair trial as a result of improper comments made by the prosecutor during closing arguments. Appellant's third assignment of error is without merit and is overruled. Trial court judgment is affirmed. -17- 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. FRANCIS E. SWEENEY, P.J., AND PATTON, J., CONCUR LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .