COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61107 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CHARLES T. JONES : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-250224. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jeffry F. Kelleher, Esq. 410 Leader Building Cleveland, OH 44114 Gordon S. Friedman, Esq. 1700 Standard Building 1370 Ontario Street Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Charles Jones, appeals from his conviction for one count of murder with a firearm specification and one count of aggravated robbery. The appellant's appeal involves the issues of manifest weight, prejudicial testimony, motion to suppress, lesser included offenses, motion for acquittal and expert's testimony. The appellant's appeal is not well taken. I. THE FACTS A. THE DEATH OF DARRYL HOLLINGSHEAD On September 29, 1989, the East Cleveland Police received a telephone call concerning a homicide in an apartment building located at 1832 Forest Hill Boulevard, East Cleveland, Ohio. Upon investigation, the East Cleveland Police discovered the body of Darryl Hollingshead lying at the foot of a bed. Closer examination of the body revealed four gunshot wounds. The Cuyahoga County Coroner determined that the death of Darryl Hollingshead was caused by a gunshot wound to the chest. A search of the apartment resulted in the discovery of six spent .22 caliber cartridges. B. THE HOMICIDE INVESTIGATION CONDUCTED BY THE EAST CLEVELAND POLICE On October 18, 1989, an East Cleveland Police Detective received an anonymous telephone call with regard to the murder of Darryl Hollingshead. The anonymous caller suggested that the police investigate a bar entitled "Porky's Night Club" which was -3- located in the City of Cleveland. The anonymous caller further indicated that the police should investigate a male named "Chuck" or "Chuckie" who had a relationship with the manager of the bar. Upon traveling to "Porky's Night Club," the East Cleveland Police contacted the manager who immediately identified the appellant as "Chuck." The appellant was arrested for "investigative purposes" and transported to the East Cleveland Jail. On October 19, 1989 and October 20, 1989, the appellant was interrogated by the East Cleveland Police. The appellant made two oral statements which involved an alibi to the murder. The appellant was released from the East Cleveland Jail on October 20, 1989. C. THE APPELLANT'S CONFESSION On February 22, 1990, the appellant contacted the East Cleveland Police and indicated a desire to discuss the murder of Darryl Hollingshead. The appellant, upon his arrival at the East Cleveland Police Station, was advised of his constitutional rights. In addition, the appellant signed a form which indicated a waiver of his right to remain silent. Following the waiver, the appellant made a statement which was reduced to writing and signed by the appellant. The appellant, through his oral and written statements, confessed to the murder of Darryl Hollingshead. D. THE INDICTMENT OF THE APPELLANT On April 24, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of aggravated murder in -4- violation of R.C. 2903.01 with a felony murder specification and a violence specification, one count of aggravated burglary in violation of R.C. 2911.11 with a firearm specification and two violence specifications and one count of aggravated robbery in violation of R.C. 2911.01 with a firearm specification and two violence specifications. E. THE ARRAIGNMENT OF THE APPELLANT On May 2, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to all three counts of the indictment. F. THE APPELLANT'S MOTION TO SUPPRES ORAL AND WRITTEN STATEMENTS On October 23, 1990, the trial court conducted a hearing with regard to the appellant's motion to suppress the oral statements and written statements made by the appellant on October 19, 1989, October 20, 1989, February 22, 1990 and February 23, 1990. Following the suppression hearing, the trial court ordered that the oral statements as made by the appellant on October 19, 1989 and October 20, 1989, be suppressed. The trial court, however, refused to suppress the written statement as made by the appellant on February 22, 1990 and February 23, 1990. G. THE JURY TRIAL On October 30, 1990, a jury trial was commenced with regard to three counts of the indictment which involved the offenses of aggravated murder, aggravated burglary and aggravated robbery. Prior to the conclusion of the jury trial, the prosecutor nolled the second count of the indictment which involved the offense of -5- aggravated burglary with a firearm specification and two violence specifications. H. THE VERDICT OF THE JURY On November 9, 1990, the jury returned a verdict of not guilty with regard to the offense of aggravated murder. The jury, however, returned a verdict of guilty to the offense of murder (R.C. 2903.02) which is a lesser included offense of aggravated murder. In addition, the jury returned a verdict of guilty with regard to the offense of aggravated robbery. I. THE SENTENCE OF THE TRIAL COURT On November 28, 1990, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution, Lorain, Ohio for a term of fifteen years to life with regard to the offense of murder and a term of incarceration of eight years to twenty-five years with regard to the offense of aggravated robbery. The trial court imposed a term of incarceration of three years actual as a result of the firearm specification. J. THE APPELLANT'S TIMELY APPEAL Thereafter, the appellant filed a timely appeal from his conviction for the offense of murder and aggravated robbery. II. FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD THEREFORE BE VACATED. -6- A. THE ISSUE RAISED: CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE The appellant, through his initial assignment of error, argues that the jury's verdict was against the manifest weight of the evidence. Specifically, the appellant argues that the prosecution failed to prove each and every element of the offense of murder beyond a reasonable doubt which in turn required the jury to return a verdict of guilty as to the lesser included offense of voluntary manslaughter. The appellant's initial assignment of error is not well taken. B. THE STANDARD OF REVIEW FOR A CLAIM OF MANIFEST WEIGHT The weight of all the evidence adduced at trial and the credibility of all witnesses are primarily a matter for consideration by the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 231. In addition, this court will not reverse the verdict of the trier of fact where there is substantial and credible evidence upon which the trier of fact could reasonably conclude that each of the elements of the charged offense have been proved beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St.2d 169; State v. Gaston (January 11, 1979), Cuyahoga App. No. 37846, unreported. C. THE ELEMENTS OF THE OFFENSE OF MURDER The elements of the offense of murder, as defined by R.C. 2903.02, are: 1) purposely, 2) cause the death of another. -7- Herein, the appellant does not challenge the fact that he caused the death of Darryl Hollingshead. The appellant, however, argues that he did not purposely cause the death of Darryl Hollingshead. D. THE STANDARD OF REVIEW FOR ELEMENT OF PURPOSE OR INTENT TO KILL The Supreme Court of Ohio, in State v. Lott (1990), 51 Ohio St.3d 160, addressed the issue of the purposeful intention to cause death and held that: Lott's purposeful intention to cause death can be inferred from the act of pouring lamp oil over McGrath and setting him on fire. "It is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts." State v. Johnson (1978), 56 Ohio St. 2d 35, 39, 10 O.O. 3d 78, 80, 381 N.E. 2d 637, 640; State v. Thomas (1988), 40 Ohio St. 3d 213, 217, 533 N.E. 2d 286, 290, certiorari denied (1989), 493 U.S. , 107 L.Ed. 2d 54, 110 S. Ct. 89. Intent "'can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances ***.'" State v. Johnson (1978), supra, at 38, 10 O.O. 3d at 80, 381 N.E. 2d at 640, quoting State v. Huffman (1936), 131 Ohio St. 27, 5 O.O. 325, 1 N.E. 2d 313; State v. Robinson (1954), 161 Ohio St. 213, 53 O.O. 96, 118 N.E. 2d 517, paragraph five of the syllabus. State v. Lott, supra, at 168. The purpose to kill can be presumed where the natural and probable consequences of the defendant's acts are to produce death. In addition, it may be concluded from all the surrounding circumstances that the defendant had an intention to kill. -8- "R.C. 2903.02(A), under which defendant was convicted, requires that the state show that defendant had a purpose to kill. 'Purposely' is defined in R.C. 2901.22(A) as having a specific intention to cause a certain result. Defendant argues that the evidence upon which he was convicted was circumstantial and that it failed to exclude all reasonable theories of innocence as required for a conviction on circumstantial evidence. We disagree. The weight to be given the evidence and the credibility of the witnesses were for the jury to determine in this case. State v. Stockton (Dec. 20, 1984), Franklin App. No. 84AP-506, unreported. A jury may presume an intention to kill where the natural and probable consequence of a defendant's act is to produce death and the jury may conclude from all of the surrounding circumstances that a defendant had an intention to kill. State v. Robinson (1954), 161 Ohio St. 213 [53 O.O. 96]." State v. Edwards (1985), 26 Ohio App.3d 199, at 200. E. THE APPELLANT'S CONVICTION WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE Upon application of the standards of review for the element of purpose as established in Lott and Edwards, this court must find that it was permissible for the jury to presume the intention of the appellant to cause the death of Darryl Hollingshead where the natural and probable consequence of the appellant's acts was to produce death. Clearly, a specific intention to cause death can be presumed when a victim is shot four times in the chest, right arm, lower back and left buttock. In addition, the appellant kicked the victim in the face subsequent to the shooting. A review of the record demonstrates that the appellant's conviction for the offense of murder was supported by substantial -9- and credible evidence. Thus, the appellant's conviction for the offense of murder was not against the manifest weight of the evidence and the appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: IT WAS PREJUDICIAL ERROR AND A DENIAL OF DUE PROCESS OF LAW FOR THE TRIAL COURT TO ALLOW IN TESTIMONY OVER OBJECTION AS TO WHAT WAS A "MUG BOY". A. THE ISSUE RAISED: PREJUDICIAL TESTIMONY ADMITTED AT TRIAL The appellant, through his second assignment of error, argues that he was prejudiced as a result of the testimony of an East Cleveland Police Detective. Specifically, the appellant argues that the testimony of the East Cleveland Police Detective as to the definition of a "mug boy" was highly prejudicial and thus necessitates a new trial. The appellant's second assignment of error is not well taken. B. THE ALLEGED PREJUDICIAL TESTIMONY During the course of the prosecution's case-in-chief, testimony was adduced from the East Cleveland Police Detective that conducted the investigation of the Darryl Hollingshead homicide. The detective, during his testimony, testified as follows with regard to a "mug boy": -10- Q. Then drawing your attention to later that month, that being October 23rd and 24th, did you continue to investigate this homicide? A. Yes, I did. Q. And did you investigate this homicide by going to other homosexual or gay bars? A. Yes, I did. Q. Are you familiar, officer, with a term mug boys? A. Yes, sir, I am. Q. And what's your understanding of what a mug boy is? A. It's a street term that's defined as -- MR. KELLEHER: Your Honor, we object. May we approach, please? THE COURT: Yes. (Thereupon, a side bar discussion was had between Court and counsel, out of the hearing of the jury and on the record as follows:) MR. KELLEHER: This witness is about to testify about a street term for an individual who assaults others violent in nature, perhaps, homosexual is a target. This is a disguised attempt to impeach Charles Jones' character indirectly, inferentially. This has no relevance, whatsoever. What is or what may be a mug boy is totally irrelevant, outside the realm of any relevant issues in this case, and it would serve only to prejudice the defendant. MR. HORN: Well, he's not going to say that your defendant was one; he's going to say that that's what he was looking for. -11- This man has testified as to what he did concerning this investigation, the fact that he went into numerous gay bars, and this is something that he learned as a result of that investigation. I think he's clearly capable of testifying as to what that is, why he was looking for that sort of person, and he's qualified to testify as to what that is. THE COURT: Is he going to say anything about the information, any information that he believed or he was told that the defendant was a mug boy? MR. HORN: No. THE COURT: Just a general -- MR. HORN: Yes. THE COURT: That's what his investigation was looking for, that's what his target was? I'll allow that question provided that that's as far as it goes. MR. HORN: Yes. MR. KELLEHER: I would add, your Honor, based on Mr. Horn's explanation of the grounds for this question, that it's hearsay, what he learned from other people, "What's a mug boy? I learned from talking in these gay bars," this is secondhand. And this isn't the basis -- this is totally impermissible testimony. MR. HORN: Almost everything a police officer does is hearsay, Judge, and this is not been able offered for the matter that the truth is asserted. Every person he talks to is hearsay, everything he does is hearsay, it's not being offered for the truth of the matter asserted. If he has a problem with a mug boy, he can put somebody else on that it means something else. -12- MR. FRIEDMAN: The problem with this line of questioning is by inference he's conducting an investigation that he's looking for a mug boy, and, apparently, our client is going to be the mug boy, so I would further support my co-counsel's statement that by inference and not very subtle inference, that he's suggesting our client is, in fact, a mug boy. MR. HORN: Judge, he's not going to say that the client is, and if that's what the detective was looking for, that's what he was looking for. It's too bad that it's prejudicial. So was the fact that the guy got shot four times. MR. KELLEHER: He's looking for a description. He's looking for a hearsay description of the guy or person. THE COURT: He's looking for a type of person. I will allow this line, just the general terms of what a mug boy is, and if that was the profile that he was targeting his investigation. MR. HORN: Thank you. (Thereupon, proceedings were resumed within the hearing of the jury as follows:) ---oOo--- BY MR. HORN: Q. Officer, based on your investigation, can you tell us what a mug boy is? MR. KELLEHER: Objection. THE COURT: Overruled. A. A mug boy is defined in the street as an individual, generally a younger male, who, well built, very physical, that they meet with other male homosexuals, generally older men. These older men or other males like to pick them up, and they entertain them, either take them out to get them high, give them a place to stay, -13- transportation and to have sex with them. Generally, they're the stronger part of the act of the homosexual act. Q. And what does the term mug mean? A. Well -- MR. KELLEHER: Objection. MR. FRIEDMAN: Objection, your Honor. THE COURT: I'll sustain. BY MR. HORN: Q. Do you know whether or not mug boys are violent? MR. KELLEHER: Objection. MR. FRIEDMAN: Objection. THE COURT: Sustained. MR. FRIEDMAN: Request that the jury be asked to disregard that answer. THE COURT: Motion is granted. Ladies and gentlemen of the jury, you're instructed to disregard the last question and the answer given pertaining to that question. Mr. Horn, you may resume. (Tr. 1294 to 1301.) C. THE TESTIMONY OF THE DETECTIVE WAS NOT PREJUDICIAL A review of the testimony adduced at trial from the East Cleveland Police Detective, with regard to the definition of a "mug boy", reveals that the testimony was indeed relevant and was directly related to the method and scope of the homicide -14- investigation. See Evid. R. 401 and 402. In addition, the testimony of the East Cleveland Police Detective, with regard to the definition of a "mug boy," was not inflammatory, was not evidence of appellants other criminal acts and was not an attempt to impeach the appellant nor attack his character. See Evid R. 403 and 404; State v. Wright (1990), 48 Ohio St.3d 5; State v. Mann (1985), 19 Ohio St.3d 34. No prejudicial harm befell the appellant as a result of the testimony adduced at trial with regard to the definition of a "mug boy." Thus, the appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO ALLOW INTO TESTIMONY OF THE APPELLANT'S ARREST ON OCTOBER 18, 1989 AFTER IT RULED THAT THE ARREST WAS CONTRARY TO THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION. A. THE ISSUE RAISED: PREJUDICIAL TESTIMONY ADMITTED AT TRIAL The appellant, through his third assignment of error, again argues that he was prejudiced as a result of the testimony of an East Cleveland Police Detective. Specifically, the appellant argues that the testimony of the East Cleveland Police Detective, with regard to the appellant's arrest on October 18, 1989 for investigative purposes, was prejudicial and requires a new trial. The appellant's third assignment of error is not well taken. B. THE ALLEGED PREJUDICIAL TESTIMONY -15- As stated previously, the trial court conducted a hearing which resulted in the suppression of the appellant's oral statements as made on October 18, 1989 and October 19, 1989. During the direct examination of the East Cleveland Police Detective that conducted the homicide investigation, it was revealed that the appellant was arrested on October 18, 1989: Q. Detective, next drawing your attention to October 18th of 1989, did you have an occasion then to go to Porky's Lounge? A. Yes, sir, I did. Q. And what type of bar was Porky's Lounge? A. Again, that is frequented by homosexual males. A. Where is the bar located? A. St. Clair. Q. In the City of Cleveland? A. Yes, sir. Q. And on that date and at that place did you have an occasion to place an individual under arrest? A. Yes, sir, I did. Q. Who was that? MR. FRIEDMAN: Objection, your Honor. THE COURT: Overruled. A. Charles Jones, also known as Chuckie. Q. And do you see Charles Jones, also known as Chuckie in the courtroom today? A. Yes, sir, I do. -16- Q. Would you point him out and tell us where he's seated and what he's wearing? A. He's seated at the counselor's table, black gentleman, wearing green sweater with a black shirt underneath. MR. HORN: Your Honor, may the record reflect the witness has identified the defendant? THE COURT: It will so reflect. (Tr. 1294, 1295.) C. THE TESTIMONY OF THE DETECTIVE WAS NOT PREJUDICIAL The testimony of the East Cleveland Police Detective did not reveal the existence of any incriminating oral statements which were suppressed by the trial court. It should also be noted that any error possibly associated with the arrest of the appellant on October 18, 1989, was harmless since there was no reasonable possibility that the testimony and evidence of the appellant's arrest on October 18, 1989, contributed toward the appellant's conviction. Chapman v. California (1967), 386 U.S. 181. Thus, the trial court did not err by allowing into testimony the fact that the appellant was arrested on October 18, 1989. The appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR A. THE ISSUE RAISED: TRIAL COURT ERRED BY FAILING TO SUPPRESS ORAL AND WRITTEN STATEMENTS MADE BY THE APPELLANT ON FEBRUARY 22, 1990 AND FEBRUARY 23, 1990 The appellant's fourth assignment of error is that: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO SUPPRESS THE STATEMENTS -17- OBTAINED ON FEBRUARY 22 AND FEBRUARY 23, 1990 FROM THE APPELLANT IN VIOLATION OF THE FOURTH AND FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION AS WELL AS ARTICLE I, SECTIONS 14 AND 10 OF THE OHIO CONSTITUTION. A. The trial court erroneously admitted the confession obtained on February 22 and February 23, 1990. B. The statements provided on February 22 and 23, 1990 were not voluntarily obtained. The appellant, through his fourth assignment of error, argues that the trial court erred by failing to suppress the oral and written statements which were made by the appellant to the East Cleveland Police on February 22, 1990 and February 23, 1990. Specifically, the appellant argues that the police investigation or interview of the appellant on February 22, 1990 and February 23, 1990 was based upon the original suppressed statements of October 18, 1989 and October 19, 1989 thus resulting in a "tainted" confession. In addition, the appellant argues that the oral and written statements made by the appellant on February 22, 1990 and February 23, 1990 were involuntarily obtained by the East Cleveland Police. The appellant's fourth assignment of error is not well taken. B. THE INITIAL ARGUMENT: CONFESSION WAS THE RESULT OF TAINTED INFORMATION The appellant's initial argument in support of his claim that the oral and written statements of February 22, 1990 and February 23, 1990 should be suppressed involves the allegation that the East Cleveland Police used the suppressed oral statements as a basis for another investigation and interview of the appellant. -18- The appellant argues that absent the suppressed oral statements of October 18, 1989, and October 19, 1989, no basis existed for the continued investigation of the appellant. The record, however, fails to substantiate the appellant's allegation that the second investigative interview, which resulted in a written confession, was based solely upon the suppressed oral statements as made by the appellant on October 18, 1989 and October 19, 1989. C. THE STANDARD OF REVIEW APPLICABLE TO CONFESSION BASED ON TAINTED INFORMATION OR ILLEGAL ARREST The United States Supreme Court, in Taylor v. Alabama (1982), 457 U.S. 687, addressed the issue of a confession obtained vis- a-vis an illegal arrest and held that: In Brown v Illinois, supra, and Dunaway v New York, supra, the police arrested suspects without probable cause. The suspects were transported to police headquarters, advised of their Miranda rights, and interrogated. They confessed within two hours of their arrest. This Court held that the confessions were not admissible at trial, reasoning that a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is "'sufficiently an act of free will to purge the primary taint.'" Brown v Illinois, supra, at 602, 45 L Ed 2d 416, 95 S Ct 2254 (quoting Wong Sun v United States, 371 US 471, 486, 9 L Ed 2d 441, 83 S Ct 407 (1963)). See also Dunaway v New York, supra, at 217, 60 L Ed 2d 824, 99 S Ct 2248. This Court identified several factors that should be considered in determining whether a confession has been purged of the taint of the illegal arrest: "[t]he temporal proximity of the arrest and the confession, -19- the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct." Brown v Illinois, supra, at 603-604, 45 L Ed 2d 416, 95 S Ct 2254 (citations and footnotes omitted); Dunaway v New York, 442 US, at 218, 60 L Ed 2d 824, 99 S Ct 2248. The State bears the burden of proving that a confession is admissible. Ibid." Taylor v. Alabama, supra, at 689. D. THE APPELLANT'S CONFESSION WAS NOT BASED UPON TAINTED INFORMATION OR AN ILLEGAL ARREST The oral and written statements made by the appellant on February 22, 1990 and February 23, 1990 were not a product of the original tainted oral statements of October 18, 1989 and October 19, 1989. The record clearly demonstrates that it was the appellant who contacted the East Cleveland Police on February 22, 1990. (Tr. 1302.) The record further demonstrates that the appellant voluntarily appeared at the East Cleveland Police Station and unilaterally offered to discuss the homicide of Darryl Hollingshead. (Tr. 1303.) It must also be noted the East Cleveland Police spoke to the appellant on several occasions subsequent to the taking of the tainted statements of October 19, 1989 and October 20, 1989 but prior to the oral and written statements of February 22, 1990 and February 23, 1990. (Tr. 1301, 1302.) Finally, it is abundantly clear that the appellant's oral statements of October 18, 1989 and October 19, 1989 did not provide the East Cleveland Police with any evidence -20- which was inculpatory or provided a basis for a subsequent investigation of the appellant. Thus, the appellant's initial argument for the suppression of the oral and written statements of February 22, 1990 and February 23, 1990 must fail. E. THE APPELLANT'S SECOND ARGUMENT: CONFESSION WAS NOT VOLUNTARY The appellant's second argument in support of his fourth assignment of error involves the claim that the oral and written statements as made on February 22, 1990 and February 23, 1990 were not freely and voluntarily made but the product of coercion and promises. F. THE STANDARD OF REVIEW FOR A "VOLUNTARY" CONFESSION When dealing with a motion to suppress an alleged defective statement or confession, the prosecution bears the burden of demonstrating by a preponderance of the evidence that the claimed defective statement or confession was voluntary and made in an intelligent and knowing manner. Lego v. Twomey (1972), 404 U.S. 477; State v. Melchior (1978), 56 Ohio St.2d 15; State v. Marrow (October 13, 1988), Cuyahoga App. No. 5444l, unreported. In addition, the voluntariness of a confession must be examined in light of the totality of the circumstances surrounding the statement or confession. State v. Edwards (1976), 49 Ohio St.2d 31; State v. Arrington (1984), 14 Ohio App.3d 111. G. THE APPELLANT'S CONFESSION WAS VOLUNTARY The record herein shows that the oral and written statements as made by the appellant on February 22, 1989 and February 23, -21- 1989 were voluntary and not subject to suppression by the trial court. The appellant voluntarily appeared at the East Cleveland Police Station, the appellant voluntarily indicated that he desired to discuss the homicide of Darryl Hollingshead, the appellant was advised of his constitutional rights and guarantees, the appellant read and signed a constitutional rights waiver form, the appellant signed a three-page written statement and the appellant initialed each answer as contained in the written statement. This court can but find that the prosecution met its burden of proof, by a preponderance of the evidence, that the appellant's confession was the product of a voluntary act and not the result of coercion. State v. Stomper (1986), 33 Ohio App.3d 104. Thus, the trial court did not err by refusing to suppress the oral and written statements as made by the appellant on February 22, 1990 and February 23, 1990. The appellant's fourth assignment of error is not well taken. VI. FIFTH AND SIXTH ASSIGNMENTS OF ERROR Having a common basis in law and fact, this court shall simultaneously address the appellant's fifth and sixth assignments of error. The appellant's fifth assignment of error is that: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT MUST CONSIDER THE LESSER INCLUDED OFFENSE OF MURDER BEFORE IT COULD CONSIDER THE INFERIOR DEGREE OF VOLUNTARY MANSLAUGHTER. The appellant's sixth assignment of error is that: -22- THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT MUST CONSIDER THE LESSER INCLUDED OFFENSE OF MURDER BEFORE IT COULD CONSIDER THE INFERIOR DEGREE OF VOLUNTARY MANSLAUGHTER. A. THE ISSUE RAISED: THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY WITH REGARD TO LESSER INCLUDED OFFENSES TO MURDER The appellant, through his fifth and sixth assignments of error, argues that the trial court's jury instruction with regard to the consideration of the lesser included offenses to aggravated murder was erroneous. Specifically, the appellant argues that the trial court's jury instruction and jury verdict form mandated that the jury unanimously acquit the appellant of the charged offense of aggravated murder prior to consideration of the lesser included offenses of murder and voluntary manslaughter. The appellant's fifth and sixth assignments of error are not well taken. B. THE STANDARD OF REVIEW APPLICABLE TO JURY INSTRUCTION ON LESSER INCLUDED OFFENSES The Supreme Court of Ohio, in State v. Thomas (1988), 40 Ohio St.3d 313, examined the issue of a trial court's jury instruction with regard to a jury's consideration of the lesser included offenses to a principal charged offense and held that: A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the -23- defendant is not guilty of the crime charged before it may consider a lesser included offense. State v. Thomas, supra, paragraph three of the syllabus. See also, State v. Muscatello (1977), 57 Ohio App.2d 231. Herein, the appellant argues that the trial court's jury instruction and jury verdict form implied to the jury a requirement of a unanimous finding of not guilty with regard to the offense of aggravated murder prior to the jury's consideration of the lesser included offenses of murder and voluntary manslaughter. This court, however, must examine the complete jury instruction and all jury verdict forms when reviewing a claim of error associated with a trial court's jury instruction in order to determine whether the appellant was prejudiced. Cupp v. Naughten (1973), 414 U.S. 141; State v. Price (1979), 60 Ohio St.2d 136; State v. Smith (Feb. 26, 1987), Cuyahoga App. No. 51823, unreported. C. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH REGARD TO CONSIDERATION OF THE LESSER INCLUDED OFFENSES TO AGGRAVATED MURDER A review of the complete jury instruction and the jury verdict forms as provided by the trial court demonstrates that the jury was correctly instructed with regard to the consideration of the lesser included offenses to the principal charged offense of aggravated murder. The trial court's jury instruction and jury verdict forms did not require a unanimous acquittal of the offense of aggravated murder prior to a consideration of the lesser included offenses. In addition, the trial court's jury -24- instruction and jury verdict forms did not imply a requirement of unanimous acquittal of the offense of aggravated murder prior to a consideration of the lesser included offenses. The trial court's jury instruction and jury verdict form merely provided that the jury proceed to a consideration of the lesser included offenses of aggravated murder if the jury could not reach a verdict on the charge of aggravated murder. State v. Wren (February 27, 1992), Cuyahoga App. No. 59618, unreported. Thus, the trial court's jury instruction and the jury verdict forms were not prejudicial to the appellant and the appellant's fifth and sixth assignments of error are not well taken. VII. SEVENTH ASSIGNMENT OF ERROR The appellant's seventh assignment of error is that: THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM. R. 29. A. THE ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S CRIM. R. 29(A) MOTION FOR ACQUITTAL The appellant, through his seventh assignment of error, argues that the trial court erred as a result of the denial of the appellant's motion for acquittal as made pursuant to Crim. R. 29. Specifically, the appellant argues that the offense of aggravated robbery, which formed the basis of the felony murder specification, was committed separately from the homicide of -25- Darryl Hollingshead thus preventing the jury's consideration of the offense of aggravated murder. The appellant's seventh assignment of error is moot. B. APP. R. 12 AND MOOT ASSIGNMENTS OF ERROR App. R. 12(A)(1)(c), as amended effective July 1, 1992, provides that: (c) Unless an assignment of error is made moot by a ruling on another assignment of error, decide each assignment of error and give reasons in writing for its decision. As dealt with through the appellant's first assignment of error, the appellant was properly convicted of the offense of murder, a lesser included offense to aggravated murder. C. THE APPELLANT'S SEVENTH ASSIGNMENT OF ERROR IS MOOT The jury's refusal to find the appellant guilty of the offense of aggravated murder and this court's previous determination that the appellant's conviction for the offense of murder was not against the weight of the evidence renders any assignment of error, which directly involves the offense of aggravated murder, moot. This court need not address the appellant's seventh assignment of error. The appellant's seventh assignment of error is moot. VIII. EIGHTH ASSIGNMENT OF ERROR The appellant's eighth assignment of error is that: THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF THEFT TO THE CHARGE OF AGGRAVATED ROBBERY. -26- A. THE ISSUE RAISED: TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY WITH REGARD TO LESSER INCLUDED OFFENSE TO AGGRAVATED ROBBERY The appellant, through his eighth assignment of error, argues that the trial court erred by refusing to instruct the jury on the lesser included offense to aggravated robbery. Specifically, the appellant argues that the evidence adduced at trial reasonably supported acquittal on the offense of aggravated robbery thus requiring an instruction on the lesser included offense of theft. The appellant's eighth assignment of error is not well taken. B. THE STANDARD OF REVIEW FOR JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE The Supreme Court of Ohio, in State v. Thomas, supra, examined the issue of a trial court's duty to charge a jury on a lesser included offense to a principal offense and held that: Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. (State v. Kidder [1987], 32 Ohio St. 3d 279, 513 N.E. 2d 311; State v. Davis [1983], 6 Ohio St. 3d 91, 6 OBR 131, 451 N.E. 2d 772; State v. Wilkins [1980], 64 Ohio St. 2d 382, 18 O.O. 3d 528, 415 N.E. 2d 303, clarified.) State v. Thomas, supra, paragraph two of the syllabus. C. THE TRIAL COURT WAS NOT REQUIRED TO INSTRUCT JURY ON LESSER INCLUDED OFFENSES TO AGGRAVATED ROBBERY In the case sub judice, the evidence adduced at trial would not reasonably support both an acquittal of the offense of -27- aggravated robbery and a conviction upon the lesser included offense of theft. The record shows that the appellant did have a deadly weapon on or about his person or control while committing or attempting to commit a theft offense. See R.C. 2911.01; State v. Deem (1988), 40 Ohio St. 3d 205. Thus, the trial court did not err by refusing to charge the jury with regard to the lesser included offense of theft and the appellant's eighth assignment of error is not well taken. IX. NINTH ASSIGNMENT OF ERROR The appellant's ninth assignment of error is that: THE TRIAL COURT ERRED BY PERMITTING TESTIMONY ABOUT AND AUTHENTICATION OF AUTOPSY PHOTOGRAPHS BY A WITNESS WITHOUT PERSONAL KNOWLEDGE AND BY ADMITTING THOSE PHOTOGRAPHS INTO EVIDENCE. A. THE ISSUE RAISED: TRIAL COURT ERRED BY ALLOWING TESTIMONY AT TRIAL FROM THE CUYAHOGA COUNTY CORONER The appellant, through his ninth assignment of error, argues that the trial court erred by allowing into evidence the testimony of Elizabeth Balraj, the Cuyahoga County Coroner. Specifically, the appellant argues that Elizabeth Balraj did not conduct the autopsy on the body of Darryl Hollingshead and was thus prevented from testifying at trial as to the victim's cause of death. In addition, the appellant challenges the admission of the autopsy photographs of Darryl Hollingshead. The appellant's ninth assignment of error is not well taken. B. THE INFORMATION CONTAINED IN THE CORONER'S REPORT IS ADMISSIBLE AT TRIAL -28- A coroner's report and death certificate, through the application of R.C. 313.10, establish the legally accepted physiological manner, mode and cause of death of a deceased person and shall be received as evidence in any criminal or civil court within the State of Ohio. The records of the coroner, made by himself or by anyone acting under his direction or supervision are public records, and such records, or transcripts, or photostatic copies thereof, certified by the coroner, shall be received as evidence in any criminal or civil court in this state, as to the facts contained in such records. All records in the coroner's office shall be open to inspection by the public, and any person may receive a copy of any such record or part thereof upon demand in writing, accompanied by payment of the transcript fee, at the rate of fifteen cents per hundred words, or a minimum fee of one dollar. R.C. 313.10. The testimony of Elizabeth Balraj, with regard to the cause of the death of Darryl Hollingshead, was permissible through the application of R.C. 313.10. The testimony of the Cuyahoga County Coroner did not establish criminal responsibility for the death of Darryl Hollingshead and was thus admissible through the application of R.C. 313.10. State v. Cousin (1982), 5 Ohio App.3d 32; State v. Beach (November 7, 1985), Cuyahoga App. No. 49720, unreported; State v. Johnson (December 19, 1974), Cuyahoga App. No. 32971, unreported. It should be noted that the information contained in the coroner's report and certificate of death was admissible pursuant to Evid. R. 803 (records of regularly conducted activity) and Evid. R. 1005 (public records). Further review of the record -29- fully demonstrates that the prosecutor properly authenticated the autopsy photographs thus laying the proper foundation for the introduction and admission of the autopsy photographs. Evid. R. 901 (requirement of authentication or identification); Evid. R. 1001 (contents of writings, recordings, photographs), et seq. C. THE APPELLANT'S CROSS-EXAMINATION OF THE CORONER CONSTITUTED WAIVER OF ERROR Finally, the record demonstrates that appellant's counsel fully cross-examined the Cuyahoga County Coroner, Elizabeth Balraj, with regard to the contents of the coroner's report and the autopsy photographs thus waiving any claimed error. State v. Miller (1988), 56 Ohio App. 3d 130. Therefore, the trial court did not err by allowing the testimony of the Cuyahoga County Coroner, Elizabeth Balraj, and the autopsy photographs into evidence. The appellant's ninth assignment of error is not well taken. Judgment affirmed. -30- 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, J. and BLACKMON, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .