COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60639 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RODNEY BOYD : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 28, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-253308 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: TIMOTHY DOBECK AND JOHN MANLEY Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square Cleveland, Ohio 44113 -2- SPELLACY, J.: On May 24, 1990, defendant-appellant Rodney L. Boyd ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Aggravated Murder, in violation of R.C. 2903.01. At his arraignment on June 14, 1990, appellant pleaded not guilty. On August 15, 1990, appellant's jury trial commenced. The first witness to testify for the state was Dr. Elizabeth K. Balraj, the Cuyahoga County Coroner. Dr. Balraj stated that Dr. Robert Challenger, a Deputy Coroner for Cuyahoga County, performed the autopsy on the victim William Haywood. However, the autopsy was taken under Dr. Balraj's control and direction and she personally reviewed Dr. Challenger's findings with him. Dr. Balraj further testified that in preparation for trial, she had an additional meeting with Dr. Challenger regarding his findings. Testifying from the "autopsy protocol" prepared in this case, Dr. Balraj stated that William Haywood suffered a stab wound in the front of his upper abdomen. It was about one and one-half inches in length and approximately four and one-half inches deep. The instrument used in the stab wound perforated the soft tissues of the abdomen and then the heart. According to Dr. Balraj, William Haywood died as a result of the stab wound. Dr. Balraj offered additional testimony concerning a toxicology examination of William Haywood's body fluids. The examination revealed that alcohol was present in William Haywood, -3- but drugs were not. Dr. Balraj testified that the tests indicated that William Haywood had been drinking over a period of time. Sharon Rosenberg from the Coroner's Trace Evidence Laboratory was the next witness to testify for the state. Sharon Rosenberg testified that she performed a trace metal detection test and a gunshot residue test on the hands of William Haywood. With regard to the trace metal detection test, Sharon Rosenberg stated that they were unable to draw any conclusions due to the blood covering William Haywood's hands. Sharon Rosenberg said that the gunshot residue test showed no evidence of lead or barium on the hands. Sharon Rosenberg also examined the clothing of William Haywood. Based upon her training and experience, she stated that the defect in his clothing was consistent with a sharp edged instrumentality penetrating through the clothes. The State then presented the testimony of Kenneth Robinson, 1 the brother of William Haywood. Kenneth Robinson testified that on May 17, 1990, at approximately 9:00 A.M., he had been involved in a fight with appellant and two men with appellant. Later that day, at about 5:00 P.M., Kenneth Robinson got together with William Haywood. The two then decided to go to a nearby store in order to buy beer and cigarettes. Thus, at 1 Kenneth Robinson often referred to his brother as Earl. -4- approximately 5:15 P.M., the two men left for Joey's Grocery's. According to Kenneth Robinson, he did not know whether William Haywood had already been drinking that day. Kenneth Robinson testified that as he and William Haywood got to a field, adjacent to the building where the store was located, appellant exited the store, walked toward them, and said something. Suddenly, a fight broke out. Kenneth Robinson stated that two "winos" tried to break up the fight. At that point, his nephew, Daryl Collins, and Andre Dunn arrived on the scene. As everyone struggled and fists were thrown, appellant broke away and then ran through the field. Kenneth Robinson and William Haywood proceeded to enter the store. Kenneth Robinson claimed that he suddenly heard someone scream, "Look out, here he comes," and as he turned around, he observed appellant come from around the store and "stuck" William Haywood in the chest. Kenneth Robinson stated that it was about one minute between the time in which appellant left the scene and the time in which he returned and stabbed his brother. After the stabbing, Kenneth Robinson heard William Haywood say, "He stuck me, he stuck me." Kenneth Robinson grabbed William Haywood and tried to take him home, but he passed out. In the meantime, appellant had fled through the field. The next witness to testify for the State was Daryl Collins, the nephew of William Haywood. He testified that on May 17, 1990, he was standing on the porch of Andre Dunn's house, just about five houses away from Joey's Grocery's. While standing on -5- the porch, he observed William Haywood, Kenneth Robinson and appellant involved in a fist fight. Thus, he quickly ran to the scene. Daryl Collins further testified that when he arrived on the scene, some men were trying to break up the altercation. As the men grabbed William Haywood, Daryl Collins and appellant then got into a fight. At that point, appellant ran away toward his apartment. Daryl Collins stated that in approximately thirty seconds to one minute, he heard someone scream, "Here he comes." Daryl Collins then observed appellant lunge at William Haywood and stab him. He was able to see a knife in appellant's hand and a lot of blood. Daryl Collins said that appellant tried to stab William Haywood again but he was unable. Then, appellant ran away. After the stabbing, Daryl Collins ran home in order to get his car. When he returned to the scene, he saw William Haywood laying on the ground. The State then called Andre Dunn to the stand. He testified that during the early evening hours of May 17, 1990, he was sipping some beer on his front porch with his mother and Daryl Collins. He eventually observed a fight outside Joey's Grocery's between appellant, William Haywood, and Kenneth Robinson. Also present were several people from the neighborhood. When Andre Dunn got to the scene, Daryl Collins and appellant were engaged in a fight. According to Andre Dunn, it appeared that the fight had ended after appellant fled behind the -6- store. However, Andre Dunn heard appellant say, "I'll be back." Several second later, Andre Dunn observed appellant return to the area with a seven-inch blade knife in his hand. He then saw appellant stab William Haywood once. Andre Dunn claimed that after appellant stabbed him, he heard him say, "I'll kill him." Appellant then ran away from the scene. Joseph Dunn next testified that on May 17, 1990, he was working at Joey's Grocery's, a local store owned by his father. On that particular day, at about 9:30 A.M. or 10:00 A.M., he noticed appellant walking down the street without a shirt on and with blood on his body. Appellant was talking about being victorious in a fight with Kenneth Robinson. Joseph Dunn then stated that he saw appellant "off and on" for the entire day. At about 4:30 P.M., Joseph Dunn and appellant were having a conversation outside Joey's Grocery's when appellant observed William Haywood and Kenneth Robinson walking toward the store. Joseph Dunn testified that appellant told him that he should try to get out of the way and go somewhere. Joseph Dunn observed the three men meet on the sidewalk and a fight erupt. He went back into the store to wait on some cus- tomers. The next time he came outside the store, Joseph Dunn found William Haywood in front of the store and wiping blood off of himself. Joseph Dunn immediately ran into the store and called 911. Hans Botzki from the Emergency Medical Service for -7- the City of Cleveland testified that he transported William Haywood to Mt. Sinai Hospital. He subsequently learned that Mr. Haywood died as a result of the stab wound. Detective John Healy from the Cleveland Police Department's Homicide Unit testified that he was assigned to the investigation of this incident. Detective Healy stated that a search of the area did not produce a knife. He further stated that they were unable to locate appellant after receiving his name and an identification. The last witness to testify for the state was Officer Walter May. He also testified that they could not initially find appellant. At the close of the State's case-in-chief, appellant moved for a judgment of acquittal under Crim. R. 29. The trial court granted appellant's motion as to the charge of aggravated murder and proceeded with the crime of Murder, in violation of R.C. 2903.02. The trial court found that there was insufficient time for appellant to form the requisite element of "prior calculation and design" under the charge of aggravated murder. Appellant testified on his own behalf that on May 17, 1990, he went to Joey's Grocery's in order to buy some milk for his baby. As he entered the store, he heard William Haywood say, "There he go right there," and "Why don't you f___him up now." According to appellant, he did not know William Haywood, who was standing with Kenneth Robinson, whom he did know. -8- Appellant stated that as he walked into the store, William Haywood punched him in the head and the two ended up in the street fighting. Kenneth Robinson joined the fight and appellant claimed that it was two on one. Soon after, Daryl Collins arrived and also started swinging at appellant. Appellant further testified that he attempted to get away from William Haywood, Kenneth Robinson, and Daryl Collins, but he was surrounded. He then observed William Haywood waiving a knife in front of him like he was trying to cut his throat. Appellant stated that he grabbed William Haywood's arm and the knife fell to the ground. Appellant picked up the knife and tried to stand up. However, before he could stand up straight, William Haywood charged directly into him. Appellant claimed that that was how William Haywood got stabbed. Appellant said that after William Haywood was stabbed, he dropped the knife, threw his hands up in the air and said, "Lord, forgive me." He then turned and walked to his house and called his grandfather about the incident. Appellant then presented the testimony of Charles Harris. Charles Harris testified that on May 17, 1990, he was driving by Joey's Grocery's when he observed three men beating up on one man. The last witness to testify for appellant was Darlene Smith, the mother of his children. She stated that on that particular evening, she gave appellant some money to go to Joey's Grocery's in order to buy some milk. Just minutes later, Darlene Smith heard some noises and went to her front porch. When she -9- looked toward the store, she observed appellant involved in a fight with three men. Darlene Smith claimed that between the time appellant left the house and the time the fight started, appellant never returned to the house. She also claimed that she never saw appellant with a knife or any other weapon. The State presented the rebuttal testimony of Detective Kathleen McComb from the Cleveland Police Department's Homicide Unit. Detective McComb testified that she first saw appellant on May 18, 1990 when he arrived at the police station with a representative from his attorney's office. According to Detective McComb, appellant had no marks or abrasions on his face. At the close of all the evidence, appellant renewed his motion for judgment of acquittal under Crim. R. 29. The trial court overruled appellant's motion. Subsequently, the jury found appellant not guilty of murder, but it did find him guilty of Voluntary Manslaughter, in violation of R.C. 2903.03. Before appellant was sentenced, appellant filed a motion for new trial on September 6, 1990, pursuant to Crim. R. 33. Appellant initially contended that when Joseph Dunn testified on behalf of the State, information regarding his pending criminal case was not properly disclosed. Appellant further argued that he was prejudicially cross-examined by the prosecuting attorney. -10- The trial court overruled appellant's motion for new trial. Appellant was then sentenced to a term of five years to twenty- five years actual incarceration. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: 1. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN HE WAS IMPROPERLY CROSS-EXAMINED BY THE PROSECUTING ATTORNEY WITH QUESTIONS WHICH ASSUMED THE EXISTENCE OF FACTS WHICH THE PROSECUTOR KNEW WERE INADMISSIBLE AND LEFT THE IMPRESSION WITH THE JURY THAT THESE FACTS DID EXIST. 2. THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF THE FACT THAT THE DEFENDANT WAS PENALIZED FOR EXERCISING HIS CONSTITUTIONAL RIGHT OF SILENCE WHEN THE DEFENDANT WAS QUESTIONED ABOUT NOT ADVISING THE POLICE ABOUT SELF-DEFENSE OR MAKING ANY STATEMENT TO THE POLICE. 3. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN IMPROPER EVIDENCE CONCERNING UN (SIC) UNRELATED INCIDENT WAS OFFERED INTO EVIDENCE THROUGH A PARTY WITHOUT ACTUAL KNOWLEDGE OF THE INCIDENT. 4. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT ALLOWED DR. ELIZABETH BALRAJ TO TESTIFY AS TO THE AUTOPSY WHEN SHE DID NOT PERFORM THE AUTOPSY. 5. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF COMPULSORY PROCESS WHEN THE SUBPOENA AND SUBSEQUENT ATTACHMENT ISSUED BY THE COURT WOULD NOT BE ENFORCED BY THE SHERIFF. 6. THE COURT ERRED IN NOT ALLOWING DEFENDANT'S MOTION FOR DISCOVERY AND INSPECTION. 7. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT WOULD NOT ALLOW AN INSPECTION OF THE STATEMENT MADE BY JOSEPH DUNN. 8. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT, IN GRANTING A MOTION FOR -11- JUDGMENT OF ACQUITTAL REDUCED THE CHARGE FROM AGGRAVATED MURDER TO MURDER INSTEAD OF DISMISSING THE INDICTMENT. 9. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR, DURING THE COURSE OF CLOSING ARGUMENT COMMENTED ON THE FACT THAT THE DEFENDANT DID NOT TELL THE POLICE ABOUT SELF- DEFENSE. 10. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY AS TO REPEALED ELEMENTS OF VOLUNTARY MANSLAUGHTER AND FURTHER FAILED TO EXPLAIN TO THE JURY THE REQUIREMENT THAT THE DEFENDANT IS RESPONSIBLE FOR PRODUCING EVIDENCE AS TO MITIGATING CIRCUMSTANCES. 11. THE COURT COMMITTED PREJUDICIAL ERROR AND THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED UPON CAUSATION IN A MANNER WHICH WAS APPLICABLE TO A CIVIL NEGLIGENCE CASE. 12. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED UPON THE OFFENSE OF VOLUNTARY MANSLAUGHTER AS A LESSER INCLUDED OFFENSE INSTEAD OF THE OFFENSE OF INVOLUNTARY MANSLAUGHTER. 13. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTIONS FOR JUDGMENT OF ACQUITTALS (SIC) WERE OVERRULED AS THERE IS INSUFFICIENT EVIDENCE TO PERMIT A RATIONAL FACTFINDER TO RETURN A VERDICT OF GUILTY AS TO THE OFFENSE OF VOLUNTARY MANSLAUGHTER. 14. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR A NEW TRIAL. In his first assignment of error, appellant contends that the prosecutor engaged in improper and prejudicial cross- examination, when he inquired about two fights appellant previously had with William Haywood's sister and brother. -12- The scope of cross-examination lies within the sound discretion of the trial court. Evid. R. 611(B); State v. Acre (1983), 6 Ohio St. 3d 140. Such exercise of discretion will not be disturbed in the absence of a clear showing of an abuse of discretion. Id. Appellant initially argues that the prosecutor's cross- examination assumed the existence and truth of facts. During cross-examination, the examiner may ask a question if he has a good-faith belief that a factual predicate for the question exists. State v. Gillard (1988), 40 Ohio St. 3d 226, paragraph two of the syllabus. We find that the prosecutor had a good-faith basis to inquire as to the fights appellant allegedly had with Kenneth Robinson and Brenda Thomas. There was ample testimony presented from the State's witnesses that the fights occurred and that they were reasonably related to the ultimate stabbing of William Haywood. Moreover, we find that the existence of these facts was not assumed, since appellant did not deny them. We further find that the prosecutor's cross-examination of appellant's prior fights with Kenneth Robinson and Brenda Thomas was permissible under Evid. R. 404(B). Evidence of other acts is not admissible to show a defendant's propensity or inclination to commit an offense. Evid. R. 404(B); State v. Mathews (1984), 14 Ohio App. 3d 440. Other acts evidence is admissible if it tends to show other purposes, such as proof of motive, opportunity, intent, -13- preparation, plan, knowledge, identity or absence of mistake or accident. Evid. R. 404(B); State v. Broom (1985), 40 Ohio St. 3d 277, paragraph one of the syllabus. We conclude that the two fights appellant had with Kenneth Robinson and Brenda Thomas were relevant to demonstrate appellant's motive, intent, identity and plan. We cannot say that the unfair prejudice of said evidence substantially outweighed its probative value. Appellant's first assignment of error is without merit and is overruled. Appellant's second and ninth assignments of error will be discussed together, since they both pertain to the prosecutor's reference to appellant's failure to inform the police that he acted in self-defense. Initially, appellant claims that he was denied his right to silence when the prosecutor cross-examined him about why he did not tell the police that he acted in self-defense. Generally, the prosecutor is prohibited to cross-examine a defendant about his prior silence where the silence occurred after his arrest. Doyle v. Ohio (1976), 426 U.S. 610. However, a defendant is permitted to be cross-examined by the prosecutor regarding his pre-arrest silence. Jenkins v. Anderson (1980), 447 U.S. 231. Such cross-examination is permissible if it is prefaced by a proper showing that, under the circumstances, it was natural and reasonable to expect that the defendant would come forward with -14- an exculpatory communication to the police. State v. Sabbah (1982), 13 Ohio App. 3d 124, paragraph two of the syllabus. In the instant case, the prosecutor inquired as to appellant's failure to go to the police after the incident at issue. Appellant was further questioned why he did not tell anybody that he acted in self-defense and why he did not turn himself in until the next day, when he knew the police were looking for him. We find that the prosecutor was permitted to cross-examine appellant about his pre-arrest silence and his actions during the day after the stabbing. Cf. State v. Sharif (Mar. 7, 1991), Cuyahoga App. No. 58041, unreported. We further find that there was a substantial period of pre-arrest silence so that reference to such silence was permissible. Appellant next argues that it was error for the prosecutor, during the course of closing arguments, to comment on the fact that appellant did not tell the police about self-defense. As mentioned previously, we find that appellant's failure to tell the police about self-defense was a proper subject of inquiry. Accordingly, we conclude that the prosecutor was permitted to make reference to such silence during his closing arguments. Appellant's second and ninth assignments of error are not well taken and are overruled. Appellant argues in his third assignment of error that the trial court erred in permitting Kenneth Robinson to testify about -15- the fight between appellant and Brenda Thomas. Appellant contends that Kenneth Robinson had no personal knowledge of the incident and that such evidence was inadmissible as evidence of "other acts." First, we find that Kenneth Robinson's testimony was based on personal knowledge derived from what appellant told him. According to Kenneth Robinson, appellant told him that the incident "had to do with some drugs" and "he beat her up." Kenneth Robinson was merely testifying as to what appellant said and, thus, we find that this was admissible as an admission by a party-opponent. Evid. R. 801(D)(2). Second, we determine that, based upon our analysis of appel- lant's first assignment of error, Kenneth Robinson's testimony was properly admitted as evidence of "other acts" pursuant to Evid. R. 404(B). Appellant's third assignment of error is without merit and is overruled. In his fourth assignment of error, appellant argues that he was denied an opportunity to confront and cross-examine witnesses when Dr. Balraj was allowed to testify about the autopsy performed by Dr. Challenger. The trial court specifically ruled that Dr. Balraj's testimony regarding the "autopsy protocol" was admissible as a business exception under Evid. R. 803(6). Evid. R. 803(6) provides in pertinent part as follows: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: -16- *** (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. A witness need only demonstrate that she is sufficiently familiar with the operation of the business and is sufficiently familiar with the circumstances of the record's preparation, maintenance and retrieval. State v. Knox (1984), 18 Ohio App. 3d 36. During Dr. Balraj's voir dire examination, it was established that although Dr. Challenger performed the actual autopsy, it was Dr. Balraj who had total control of the autopsy. Dr. Balraj testified that the autopsy was taken under her control and direction, and that she personally reviewed Dr. Challenger's findings with him. Further, Dr. Balraj met with Dr. Challenger to review the "autopsy protocol" in preparation for the trial. We find that Dr. Balraj testified as to matters within her own personal knowledge. Dr. Balraj merely related to facts obtained through her personal observations and review. Moreover, she was undoubtedly qualified as an expert to testify as to the "autopsy protocol." -17- We further find that appellant has failed to demonstrate how he was prejudiced by Dr. Balraj's testimony concerning the "autopsy protocol." If Dr. Challenger had testified, he would have testified as to the same "autopsy protocol." Further, appellant had ample opportunity to cross-examine Dr. Balraj. For the foregoing reasons, we conclude that appellant was not denied an opportunity to confront and cross-examine witnesses with regard to the autopsy. Cf. State v. Holloman (Nov. 7, 1991), Cuyahoga App. No. 59231, unreported. Appellant's fourth assignment of error is without merit and is overruled. In his fifth assignment of error, appellant contends that he was denied his constitutional right to compulsory process when his subpoena for India Boisden was not enforced by the Cuyahoga County Sheriff's Office. In order to demonstrate that a defendant was denied his constitutional right to compulsory process as a result of a failure to enforce a subpoena, the defendant must proffer to the trial court what the desired testimony of the witness was and how it would have been relevant and material to the defense. Evid. R. 103(A)(2); State v. Brooks (1989), 44 Ohio St. 3d 185, 195. In the instant case, appellant failed to proffer to the trial court what India Boisden's testimony was. Appellant also failed to demonstrate how his defense was prejudiced by the non- appearance of India Boisden. -18- Also, the trial court provided appellant with ample opportunity to secure the attendance of India Boisden. We find that appellant had the primary responsibility of securing his witnesses. The trial court did everything it could to bring India Boisden before it. Appellant's fifth assignment of error is not well taken and is overruled. Appellant's sixth and seventh assignments of error will be dealt with jointly, since they both pertain to the contention that appellant was denied his right to discovery and inspection of statements made by the State's witnesses. Appellant argues that the statements of any potential witnesses were available for inspection under R.C. 149.43. After reviewing the file of the prosecuting attorney, the trial court found that the requested statements constituted investigatory reports that were exceptions to the Public Records Law under R.C. 149.43. The trial court then ordered the requested statements to be sealed for purposes of an appeal. A review of the appellate record reveals that this court has not been supplied with any of the sealed records at issue. Further, the record does not show that appellant demanded that the sealed records be supplied to this court. Accordingly, we find that this court is unable to review appellant's arguments that he was prejudiced by the trial court's denial of his request to inspect the witnesses' statements. -19- Holloman, supra; See, also, State v. Bragg (June 27, 1991), Cuyahoga App. No. 58859, unreported. Appellant's sixth and seventh assignments of error are not well taken and are overruled. In his eighth assignment of error, appellant asserts that the trial court erred in reducing the charge from aggravated murder to murder, when it granted his motion for judgment of acquittal as to the aggravated murder charge. A trial court is permitted to dismiss a charge of aggravated murder pursuant to Crim. R. 29 and proceed to trial on the lesser included offense of murder. State v. Glover (Dec. 13, 1990), Cuyahoga App. No. 55880, unreported. An aggravated murder indictment also includes the lesser included offense of murder. State v. Stewart (1977), 51 Ohio St. 2d 86. We find that the trial court did not err in proceeding on the murder charge after it granted appellant's Crim. R. 29 motion for judgment of acquittal as to the offense of aggravated murder. Appellant's eighth assignment of error is without merit and is overruled. Since appellant's tenth, eleventh and twelfth assignments of error all pertain to the trial court's jury instructions, we will address them together. In Ohio, it is well established that a defendant is entitled to jury instructions on all the elements that the State must prove to establish the crime with which he is charged. State v. -20- Adams (1980), 62 Ohio St. 2d 151. A criminal defendant is entitled to a charge on a lesser included offense if the jury could reasonably conclude from the facts that the defendant was guilty of the lesser offense. State v. Kiddler (1987), 32 Ohio St. 3d 279. In determining whether a jury instruction constituted prejudicial error, a reviewing court must determine from the record whether such instruction may have resulted in a manifest miscarriage of justice. Adams, supra. A single instruction to the jury is not to be judged in isolation, but must be viewed in its totality. State v. Price (1979), 60 Ohio St. 2d 136. Appellant initially claims that the trial court's jury instruction on voluntary manslaughter was erroneous. We find that the trial court's charge to the jury on voluntary manslaughter practically mirrored the statutory language defining said offense under R.C. 2903.03. The judge charged the jury as follows: Voluntary manslaughter is knowingly causing the death of another while a Defendant is under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force. Before you can find Mr. Boyd guilty of voluntary manslaughter, you must find that the State of Ohio has proved beyond a reasonable doubt that on or about May 17th of 1990, in Cuyahoga County, Mr. Boyd knowingly caused the death of William Haywood. To do this act, ladies and gentlemen, the Defendant must have acted knowingly. (Tr. 498). -21- We further find that the trial court's jury charge on voluntary manslaughter was completely consistent with the jury instruction set forth in 4 Ohio Jury Instructions (1988), Section 503.03 at 133-134. Accordingly, we conclude that the trial court did not err with respect to its jury instruction on voluntary manslaughter. Appellant next challenges the jury charge concerning causation. Appellant asserts that the trial court's instruction on causation was consistent with a civil negligence case. In support of his contention that the causation jury charge was erroneous, appellant cites to State v. Jacks (June 1, 1989), Cuyahoga App. No. 55415, unreported. In Jacks, supra, this court found that an erroneous jury instruction regarding causation could have led the jury to find appellant guilty upon a lesser mens rea. We find that Jacks, supra, is inapplicable herein. First, the jury instructions which this court found improper in Jacks, supra, are not identical to the challenged instructions in this case. Second, the jury instructions in the instant case regarding purpose did not undercut the mens rea requirement. We are unable to conclude that appellant was prejudiced as a result of the trial court's charge on causation. Finally, appellant argues that the trial court erred in instructing the jury on voluntary manslaughter as opposed to involuntary manslaughter. -22- The evidence clearly established that appellant "knowingly" caused the death of William Haywood. Appellant claimed self- defense, but there is no dispute that he acted knowingly when he stabbed William Haywood. Thus, we conclude that an instruction of involuntary manslaughter would have been improper. Appellant's tenth, eleventh and twelfth assignments of error are without merit and are overruled. Appellant contends in his thirteenth assignment of error that the trial court erred in denying his Crim. R. 29 motion for judgment of acquittal. Appellant claims that there was insuf- ficient evidence to permit the jury to find him guilty of voluntary manslaughter. Pursuant to Crim. R. 29(A), the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the State and determine whether the State presented sufficient evidence on each of the essential elements. State v. Bridgeman (1978), 55 Ohio St. 2d 261. The record in the instant case shows that appellant was involved in a violent confrontation with William Haywood and several other men. Appellant was able to obtain a knife and eventually stab William Haywood, causing his death. We find that this case contained ample evidence that appellant was under the influence of sudden passion, or in a sudden fit of rage, brought on by provocation occasioned by William Haywood and the other men. We believe that the evidence -23- was sufficient to support a finding beyond a reasonable doubt that appellant knowingly caused the death of William Haywood under the influence of sudden passion or in a sudden fit of rage. Thus, we conclude that the trial court did not err in denying his request for judgment of acquittal under Crim. R. 29. Appellant's thirteenth assignment of error is not well taken and is overruled. In his fourteenth assignment of error, appellant contends that the trial court erred in denying his Crim. R. 33 motion for a new trial. A trial court's ruling on a motion for new trial will not be disturbed on appeal in the absence of a clear showing that the trial court abused its discretion. State v. Schiebel (1990), 55 Ohio St. 3d 71. In his motion for new trial, appellant initially argued that the State failed to disclose that the State's witness, Joseph Dunn, had a pending criminal case against him when he testified. Although a conviction can be used for impeachment purposes against a witness, we are unable to say that a pending case must be disclosed to the defense for the same reason. Appellant also argued that he was entitled to a new trial due to the prosecutor's improper cross-examination of him. As mentioned in our discussion of appellant's first assignment of error, we find that the prosecutor did not engage in an improper cross-examination of appellant. -24- For the foregoing reasons, we conclude that the trial court did not err in denying appellant's motion for new trial. Appellant's fourteenth assignment of error is without merit and is overruled. Trial court judgment is 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 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 BLACKMON, 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. .