COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61262 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHNNY WILLIAMS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-224205 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building SCOTT G.SALISBURY, ESQ. Suite 1016 Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Johnny Williams, was indicted by the Cuyahoga County Grand Jury in a two-count indictment on March 2, 1988. Count one charged appellant with felonious assault (R.C. 2903.11) and carried a gun specification and two violence specifications. Count two charged him with having a weapon while under disability (R.C. 2923.13) and also carried a gun specification and two violence specifications. On December 18, 1990, the trial court severed the counts of the indictment pursuant to appellant's motion. The case proceeded to jury trial on the offense of having a weapon while under disability on that date. The jury returned a not guilty verdict on this count. A second jury was impaneled for the felonious assault charge which advanced to trial on December 21, 1990. The jury sub- sequently returned a guilty verdict. The trial court thereafter sentenced appellant to a term of five to fifteen years plus an additional three years of actual incarceration for the gun specification. This appeal followed with the appellant raising ten 1/ assignments of error. Since we find that the trial court committed reversible error in its instructions to the jury, we reverse and remand for new trial. I. On December 31, 1987, a shooting occurred in the area of Euclid Avenue and Burnette Avenue in the city of East Cleveland. 1/ See appendix. - 3 - David Harper ("the victim") testified that he and some friends were drinking during the afternoon on this date. At approximately 10:30 p.m., the victim traveled to the Convenient Food Mart located in the 15800 block of Euclid Avenue with two friends in order to purchase more beer and wine since it was New Year's Eve. The victim was prohibited from entering the store as a result of a theft conviction so he waited for his friends outside. As he waited, he observed a commotion near Euclid and Burnette Avenues. The victim decided to investigate what was happening by walking towards the commotion. He encountered Julius Bell, someone he knew from the neighborhood, and after a brief conversation, the victim continued to Burnette Avenue. He recognized the appellant but was unaware of his name when he arrived on Burnette. The victim then heard an unidentified voice say, "He's got a gun", followed by a gunshot. The victim ran back to the convenience store where he discovered for the first time that he was the individual shot, sustaining a wound to his stomach. The victim acknowledged that when he was questioned by a police officer while in the convenience store, he responded he did not know his assailant. He also acknowledged that he was intoxicated that evening. However, he testified that the only individual in front of him at the time of the gun being fired was the appellant. Detective Patrick Gard from the East Cleveland Police Department responded to a call on December 31, 1987 about a - 4 - shooting victim at the convenience store on Euclid Avenue. An interview with Bell provided the officer with information that the shooter ran into a nearby apartment building located at 15776 Euclid Avenue. No information was received from any of the apartment residents at this time including appellant and his wife. However, an additional interview with Bell prompted the officer to return to the building a couple of hours later, specifically to apartment number 38. Gard was also aware of the suspect's name at this time, "Johnny". At apartment number 38, Gard discovered the appellant, his wife, Jeanetta, and one of their children. Both appellant and Jeanetta were placed under arrest at approximately 2:00 a.m. on January 1, 1988 and transported to the East Cleveland Police Department. Officer Jiminez Ventura also responded to the call and arrived at the convenience store. He testified that Bell was identified as a suspect; Ventura assisted in Bell's arrest sometime after 11:00 p.m. but found no weapon on Bell's person. He furthermore offered that his investigation revealed there was never a female implicated in the shooting. Appellant was processed at the police station by Detective James Hughey. Hughey testified that after informing appellant of his rights, the appellant proceeded to cooperate fully by providing a detailed and signed statement in which he confessed to the shooting. The statement was read to the jury and included the following details: the appellant and Bell quarreled a week earlier about drug territory; the appellant then received - 5 - threats; on December 31, 1987, the appellant went to the convenience store at approximately 10:00 p.m.; shortly thereafter, appellant was confronted by Bell; the appellant left the store, entered his vehicle and drove back to his residence about a block away where he parked in the rear of the building; he exited his car, walked out of the driveway and observed Bell and another individual down the street; the other individual approached him with a gun in his hand; the appellant crossed the street and walked behind another apartment building; the unidentified male with a gun pursued him; the appellant believed that he was the man sent by Bell to "take care of him"; the appellant drew out a gun and fired once at the male; the male left the area; the appellant returned to his building, and threw the gun into a vacant lot between his building and an adjacent motel; the appellant then returned to his apartment. The statement also contained a detailed description of the gun used in the shooting, "*** a 38 caliber Smith and Wesson, black colored, long-barreled revolver, six-shot. The gun had all live bullets in it, six, and I had bought the gun on the street about four or five months ago." Appellant's statement further reflected that Jeanetta was not a party to any of the evening's events. A statement was also taken from Jeanetta, said statement corroborating that of appellant. Detective Hughey eventually interviewed the victim at the hospital. The victim was unable to identify his assailant from photographs shown to him. The victim earlier testified that he - 6 - believed he was shown a photograph of a suspect while on the floor of the store but was unable to identify his assailant at that time. All of the testifying officers denied that a photograph was shown to the victim at that time. After the state rested, and the trial court denied appellant's motion for acquittal, the defense called Jeanetta Williams to the stand. She testified that several weeks before December 31, 1987, she encountered Bell as she returned to her apartment and Bell was selling drugs. Jeanetta returned to her husband with the news that Bell was selling drugs in or near their apartment building. The appellant confronted Bell since appellant was in the business of selling marijuana in the building. An argument developed between Bell and the appellant. Over the ensuing weeks, appellant's car was firebombed and someone broke into appellant's apartment. Jeanetta decided to then retrieve a gun she stored at her mother-in-law's house which she thereafter kept in her purse. On December 31, 1987, Jeanetta and the appellant originally planned to attend a concert but they cancelled that plan when Jeanetta was not feeling well. Jeanetta later asked the appellant to go to the store for some pop. She accompanied him with the gun in her purse in contrast to her statement to the police that she remained home while appellant went to the store. The appellant exited the store and looked upset according to Jeanetta. When she asked him what was wrong, he responded that - 7 - Bell harassed and threatened him in the store. Jeanetta and appellant then drove back to their apartment building. After appellant and Jeanetta exited their car, they discovered Bell and the victim standing in front of it. Bell and the victim started to argue with them at which time appellant told Jeanetta to run. Jeanetta ran across the street and was followed by the victim. She pulled the gun out of her purse and the gun apparently just went off, however, she admitted that she intended to eventually pull the trigger in order to halt the victim's progress. The victim picked himself up and ran away. The appellant caught up with his wife and asked what happened. He and Jeanetta decided to return to the apartment where they first changed into night clothes just in case someone saw them enter the building. They then discussed how to handle the whole episode. The appellant agreed to accept the blame for the shooting. Jeanetta eventually confessed to her mother and sister and was told by her mother to keep the "truth" to herself. In the meantime, approximately twenty minutes after appellant and Jeanetta returned to the apartment, the police arrived at the door. The officers asked Jeanetta if she saw anyone enter the building; she said "no". She furthermore denied that she ever left the apartment that evening. Jeanetta then allowed the officers to enter the apartment to have a look around. Jeanetta admitted that she was convicted in 1990 for theft as a result of passing bad checks. She further admitted that she - 8 - received welfare benefits from Cuyahoga County even though she was employed full time and a resident of Georgia. Moreover, she testified that the appellant was currently earning $37,000 per annum with an industrial sprinkler installation company. She explained that the welfare department was aware of her employment status. She commented, however, that her welfare benefits were "on hold" at the time of trial. Adrianne Moorer, Jeanetta's sister, testified that she learned from Jeanetta soon after the incident that it was Jeanetta who shot the victim. She kept this secret to herself, however, until the trial date. The state called Kathleen Devering, an eligibility specialist for the Department of Human Services, on rebuttal. She testified that "Jeanetta Moorer" was currently receiving full welfare benefits for six individuals; the checks were presently being sent to 753 East 131st Street, Cleveland, Ohio, Jeanetta's mother-in-law's home; Jeanetta failed to report any income to the welfare department; Jeanetta indicated she was single on her application and renewal forms; and the welfare benefits were not currently "on hold". The appellant renewed his motion for acquittal. The trial court denied this motion. II. In his first assignment of error, appellant contends that the trial court erred when it denied his motion to dismiss which was based upon the doctrine of collateral estoppel and the - 9 - constitutional safeguard of double jeopardy. He argues that because he was found not guilty of having a weapon while under disability, he cannot now be convicted of felonious assault. Specifically, he asserts that the factual issue of whether he knowingly had, carried or used a firearm was answered negatively when he was found not guilty in the first trial. He argues that he was twice placed in jeopardy when he was thereafter tried and convicted of felonious assault because this same factual issue was relitigated in the second trial. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." In Blockburger v. United States (1932), 284 U.S. 299, the court set forth the principal test for determining whether two offenses are the same or whether each is a separate offense for double jeopardy purposes. "*** The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. ***" Id., 304; See, also, Brown v. Ohio (1977), 432 U.S. 161. A subsequent conviction on a second offense, is, therefore barred by an acquittal or conviction of the first offense if either offense requires additional proof. However, an acquittal or conviction of either does not bar the subsequent prosecution of the other if each offense requires proof of a fact not required by the other. See, State v. Best (1975), 42 Ohio St.2d - 10 - 530; State v. Thomas (1980), 61 Ohio St.2d 254; State v. Starcher (1984), 21 Ohio App.3d 94. Appellant herein was indicted under a two count indictment for felonious assault and having a weapon while under disability. It is obvious that felonious assault and having weapons while under disability are not the same offense for purposes of double jeopardy. State v. Bozeman (Feb. 19, 1987), Cuyahoga App. No. 51614, unreported; State v. Fox (Feb. 11, 1982), Cuyahoga App. Nos. 43905, 43906, 43932, unreported. It is also apparent that the offenses are neither lesser offenses of the other nor allied offenses of similar import. The Blockburger test is thus satisfied since both offenses require proof of a fact which is not required by the other. Appellant, however, stresses that even if the Blockburger test is satisfied, the doctrine of collateral estoppel bars successive prosecutions. The doctrine was judicially integrated into the Fifth Amendment guarantee against double jeopardy in Ashe v. Swenson (1970), 397 U.S. 436. The court therein stated with regard to the principle at 443-444: "'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when a [sic] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. "Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine the record of a prior proceeding, taking into account the prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter, and - 11 - conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.'" (Emphasis added.) The basis for this argument is found in Grady v. Corbin (1990), 495 U.S. 508, 516-518, wherein the court stated that the Blockburger test is not the only standard for determining whether successive prosecutions involve the same offense. The Double Jeopardy Clause still bars a prosecution which survives the Blockburger test "*** if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. All of appellant's arguments are founded in the law. However, there is a fatal flaw in his application of this law to the facts of the instant case. The distinguishing fact here is that appellant was indicted under one indictment which charged him with two counts. He opted to seek a severance of those counts for trial, believing that stipulations entered into as part of the having a weapon while under disability count, i.e., evidence of prior convictions, would prejudice his defense in the felonious assault trial. There was, therefore, only one prosecution in this case which happened to consist of two hearings on two severed counts of the same indictment rather than successive prosecutions. We, therefore, find that neither double jeopardy nor collateral estoppel principles are implicated in this action. - 12 - "The general rule as to inconsistency in a verdict as between different counts of an indictment is expressed in the annotation in 18 A.L.R.3d 259, at page 274, where it is stated that '*** consistency between the verdicts on the several counts of an indictment *** is unnecessary where defendant is convicted on one or some counts but acquitted on others, and the conviction will generally be upheld irrespective of its rational incompatibility with the acquittal.'" State v. Adams (1978), 53 Ohio St.2d 223, 226, vacated on other grounds (1978), 439 U.S. 811. Therefore, "The several counts of an indictment containing more than one count are not interdependent. A verdict responding to a designated count will be construed in the light of the count designated, and no other. An inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count." Browning v. State (1929), 120 Ohio St. 62, paragraph four of the syllabus; Adams, supra. Accordingly, appellant's first assignment of error is overruled. III. Appellant, in his second assignment of error, submits that the trial court prejudicially denied his motion to suppress. He argues that his warrantless arrest was in violation of the Fourth Amendment and Ohio Constitution and that his subsequent statement, therefore, required suppression since it flowed from an illegal arrest. The trial court did hold a suppression hearing prior to trial. Although a written motion to suppress filed by appellant's former counsel alleged an illegal arrest, the motion filed by the counsel who represented him during the hearing, - 13 - failed to claim this illegality. Moreover, a review of the transcript reveals that the appellant only argued that his statement was given either without his being given Miranda warnings or due to coercion or enticement by Detective Hughey. Defense counsel never informed the court that the suppression hearing concerned the issue of whether appellant's warrantless arrest was not supported by probable cause as he alleges now in his brief. Although defense counsel could have pointed out such error to the court during the hearing in order to avoid or correct any possible prejudice to appellant, he failed to do so. See, State v. Williams (1977), 51 Ohio St.2d 112. Consequently, appellant waives the right to object in this court on the basis that his statement was the fruit of an illegal search or seizure. Id.; State v. Carter (1970), 21 Ohio St.2d 212. Appellant's second assignment of error is thus overruled. IV. In his third, fourth, fifth and sixth assignments of error, appellant contends that the trial court erred in allowing prejudicial evidence to be presented to the jury. First, he claims that the state improperly elicited evidence that appellant was a drug dealer. Second, appellant suggests that the state questioned a rebuttal witness on purely collateral matters, said matters being improperly introduced through cross-examination of a defense witness. Third, appellant proposes that hearsay evidence was allowed on material issues. Finally, he avers that the prosecutor's closing argument denied him a fair trial. - 14 - As appellant failed to object to the introduction of any of this evidence, we are compelled to repeat that we are under no duty to consider an error which a party complaining of could have but did not call to the trial court's attention. Williams. Crim.R. 52(B) allows us to notice plain error or defects not brought to the attention of the trial court but only if they affect a party's substantial rights. It is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. A. Appellant asserts that the state "injected fact of the character of the defendant and claimed that the defendant was a drug dealer" into the case through the cross-examination of his wife. He argues that this was impermissible collateral evidence of character and denied him a fair trial. 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. An examiner may, therefore, 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. A review of the record exposes the fact that appellant explained in his statement to the police that the incident on - 15 - December 31, 1987 was initiated by a confrontation with Bell over their drug territory. Appellant's wife, Jeanetta, then testified during direct examination in response to defense counsel's questions about the same confrontation. She furthermore addressed appellant's practice of selling marijuana in their apartment building during her direct examination as well. We fail to see how appellant can now argue that his drug dealing activity was a collateral matter in this case when he used it to explain the shooting of the victim. See, Evid.R. 401, 611(B). Appellant's third assignment of error is overruled. B. Appellant next contends that the state questioned Jeanetta about her receipt of welfare benefits, once again arguing that this line of questioning dealt with a collateral matter. Furthermore, he argues that this improper questioning continued when the state called a rebuttal witness to the stand. The credibility of a witness may be attacked by evidence of certain prior convictions (Evid.R. 609), or by evidence of the untruthful character of the witness (Evid.R. 608). State v. Jurek (1989), 55 Ohio App.3d 70, 73. Evid.R. 608(B) provides: "Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." - 16 - The Supreme Court of Ohio in State v. Kamel (1984), 12 Ohio St.3d 306, held that: "Other than the Evid.R. 609 exception for certain criminal convictions, a witness' credibility may not be impeached by extrinsic proof of specific instances of his conduct. Such conduct may be inquired into only by the intrinsic means of cross-examination within the guidelines set forth in Evid.R. 608(B)." Id., paragraph two of the syllabus. Moreover, "Evid.R. 608(B) allows, in the court's discretion, cross-examination on specific instances of conduct 'if clearly probative of truthfulness or untruthfulness.' Nevertheless, if the answers received on cross- examination do not satisfy the examiner, it is said that the examiner is bound by or 'stuck' with the responses. See, e.g., State v. Gardner (1979), 59 Ohio St.2d 14, 19." State v. Leuin (1984), 11 Ohio St.3d 172, 174. Thus, the trial court has no discretion to admit extrinsic evidence of specific instances of the conduct of a witness, for the purpose of attacking credibility, other than convictions as provided in Evid.R. 609. A trial court, however, does have discretion to allow cross-examination of a witness if clearly probative of truthfulness or untruthfulness. In the present case, no error, plain or otherwise, was committed in allowing the state to question Jeanetta during cross-examination as to her welfare benefits since the state believed that she was not entitled to those benefits and that she was less than truthful in her application for those benefits. This line of questioning dealing with specific instances of - 17 - conduct was "clearly probative of truthfulness or untruthfulness" and was, therefore, permitted under Evid.R. 608(B). However, the use of Kathleen Devering as a rebuttal witness was an impermissible use of extrinsic evidence of specific instances of the conduct of a witness. Since there were no objections to this testimony, although we find error, it does not amount to prejudicial error. See, State v. Ingram (July 9, 1992), Cuyahoga App. No. 60072, unreported. Appellant's fourth assignment of error is overruled. C. Appellant next refers to the state's opening statement in which the prosecutor commented that they would present Bell as a witness. Although Bell never appeared as a witness, appellant argues that hearsay testimony as to what Bell told the police was offered and received into evidence. Specifically, he alludes to the following testimony: the victim testified that he heard either Bell or another male state, "he's got a gun"; Detective Gard testified that an interview with Bell led him to appellant's apartment building; and Detective Gard testified that a second interview with Bell prompted him to return to the building and directly to appellant's apartment. The hearsay rule bars statements, other than those made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C), 802. - 18 - Not all out-of-court statements, however, are hearsay. For example, statements that are offered to explain a police officer's conduct while investigating a crime rather than to prove the truth of the matter asserted are not hearsay. See, State v. Thomas (1980), 61 Ohio St.2d 223, 232; State v. Blevins (1987), 36 Ohio St.3d 147, 149. In the instant case, Detective Gard testified that as a result of two interviews with Bell he was directed to appellant's apartment. The testimony as to how he received information from Bell was offered to explain his conduct while investigating a criminal occurrence. A review of Gard's testimony reveals that it does not contain any statements made by Bell. Thus, we conclude that the detective's testimony did not contain hearsay. With regard to the allegation that the victim was able to testify that Bell or an unidentified male stated the appellant had a gun, the victim admitted that he never saw the appellant with a gun. In light of this testimony and the other evidence presented at trial, we fail to find the presence of plain error. Appellant's fifth assignment of error is overruled. D. The last error which we must review under the plain error standard is whether the appellant was denied a fair trial as a result of the prosecutor's closing argument. Appellant points to the following comments as evidence he was denied a fair trial: that the victim was not lying; the appellant's wife was lying; Jeanetta's mother did not testify; and the appellant could not be - 19 - tried again. Moreover, he asserts that the prosecutor improperly mentioned the collateral matters of the welfare case and appellant's drug dealing activity. A claim of prosecutorial misconduct must be evaluated in light of the entire case. State v. Maurer (1984), 15 Ohio St.3d 239. The Supreme Court of Ohio in State v. Smith (1984), 14 Ohio St.3d 13, set forth the following general test which must be applied to any claim of prosecutorial misconduct. "The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Woodards (1966), 6 Ohio St.2d 14, 26 [35 O.O.2d 8] certiorari denied (1966), 385 U.S. 930; State v. Liberatore (1982), 69 Ohio St.2d 583, 589 [23 O.O.3d 489]. A prosecutor is at liberty to prosecute with earnestness and vigor, striking hard blows, but may not strike foul ones. Berger v. United States (1935), 2945 U.S. 78, 88. The prosecutor is a servant of the law whose interest in a prosecution is not merely to emerge victorious but to see that justice shall be done. It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury. United States v. Dorr (C.A. 5, 1981), 636 F.2d 117. "The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. United States v. Door, supra, at 120. To begin with, the prosecution must avoid insinuations and assertions which are calculated to mislead the jury. Berger v. United States , supra, at 88. It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1; DR 7-106(C)(4) of the Code of Professional Responsibility. Moreover, the Code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7-106(C)(1), and '*** [a] lawyer should not make unfair or derogatory personal reference to opposing counsel. ***.'" Smith, 13. - 20 - Finally, the conduct of a prosecuting attorney during the course of trial cannot be raised as reversible error unless that conduct deprived the defendant of a fair trial. State v. Vrona (1988), 47 Ohio App.3d 145; State v. Papp (1978), 64 Ohio App.2d 203. A review of the prosecutor's closing argument in the instant case fails to persuade us that the argument amounted to plain error in light of the evidence presented at trial. Moreover, the trial court instructed the jury on at least four separate occasions that arguments of counsel were not evidence. Thus, appellant's sixth assignment of error is overruled. V. Appellant, in his seventh, eighth and ninth assignments of error, challenges the trial court's charge to the jury in three respects. First, he asserts that the jury was unconstitutionally instructed as to "flight." Second, he contends that the trial court should have instructed the jury on self-defense. Finally, he claims that the trial court's charge on "cause" was improper. The purpose behind instructions to a jury is to point to the issues in a case, and to demonstrate how the jury should apply evidence in various aspects developed at trial. The trial court is to instruct the jury by clearly and concisely stating the principles of law necessary to allow a fair verdict and the administration of justice. Pickering v. Cirell (1955), 163 Ohio St.1; Cleveland Electric Illuminating Co. v. Astorhurst (1985), 18 Ohio St.3d 268. Instructions are of the utmost importance as - 21 - they are the last words heard by a jury prior to the determination of a defendant's guilt or innocence. 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. State v. Adams (1980), 62 Ohio St.2d 151. A single instruction to a jury must be viewed in its totality and not in isolation. State v. Price (1979), 60 Ohio St.2d 136. A. Appellant initially claims that the trial court's jury instruction on flight was unconstitutional. The trial court instructed the jury as follows on this issue: "Now, in addition, based upon evidence that was presented in the statement that was introduced that is purported to have been given by the Defendant in this case, there is evidence, if you believe that, tending to indicate that the Defendant may have fled from the vicinity of the alleged crime. In this connection, you are instructed that flight in and of itself does not raise a presumption of guilt, but unless satisfactorily explained, it tends to show consciousness of guilt or a guilty connection with a crime. "If, therefore, you find that the Defendant did flee from the scene of the alleged crime and has not satisfactorily explained his conduct in the statement, you may consider this circumstance in the case in determining the guilt or non-guilt of the Defendant." Appellant argues that this instruction required him to satisfactorily explain his conduct thereby shifting "the burden of dissuading the jury from considering a consciousness of guilt upon the defendant". In addition, he argues that the instruction comments upon the fact that he chose not to testify at trial - 22 - since the only means he could rebut the consciousness of guilt consideration was for him to take the stand. In support of his position, appellant cites State v. Fields (1973), 35 Ohio App.2d 140, paragraph one of the syllabus, in which the court held: "A court's instruction that the fleeing of an accused from the vicinity of an alleged crime, unless satisfactorily explained, tends to show a consciousness of guilt or a guilty connection with a crime compromises the right of such accused, under Articles V and XIV Amendments, United States Constitution, to remain silent and not to have that silence converted into evidence against him. (Emphasis sic.) The Fields instruction reads: "Now, in this case, there is evidence tending to indicate that both of the defendants fled from the vicinity of the alleged crime. In this connection, you are instructed that flight in an of itself does not raise a presumption of guilt, but unless satisfactorily explained, it tends to show consciousness of guilt or a guilty connection with the crime. If, therefore, you find that one or both of the defendants did flee from the scene of the alleged crime, and one or both have not satisfactorily explained their conduct in so doing, you may consider this circumstance together with all other facts and circumstances in the case in determining the guilt of innocence of one or both of the defendants. (Emphasis sic.) In holding that this instruction violated the Fifth Amendment as applied to the Fourteenth Amendment, the court explained: "It is apparent from an examination of the above instruction that it may, and almost certainly will, be understood to require a defendant, himself, to 'satisfactorily explain' his conduct in fleeing the scene of a crime, and a conscientious juror, intent upon following the law as the court gives it to him, will consequently construe the continuing silence of a defendant as a failure to so satisfactorily explain his conduct in fleeing the scene and, therefore, is to be considered by him as a 'circumstance together with all the other facts and circumstances in the case in determining the guilt or innocence' of the defendant." - 23 - Id., 145. The charge in the present case clearly is similar to that in Fields. This court in State v. Harris (Apr. 10, 1986), Cuyahoga App. No. 50117, unreported, dealt with this exact issue. Therein we stated, "*** where an error is in the jury instruction itself and wrongfully places the burden upon the defendant to satisfactorily explain his flight, there exists a greater possibility that the error may have contributed to the accused's conviction since the jurors are required to accept the court's charge as law and are presumed to have done so. Hence, in this case where defendant did not testify, a conscientious juror intent upon following the court's charge may have construed defendant's silence in not explaining his flight (as he was bound to do under the court's charge) as one factor in determining his guilt. See, Fields, supra, at 145. Therefore, we are unwilling to hold that it is clear beyond a reasonable doubt that absent the judge's instruction, defendant would have been convicted of the offenses for which he was charged." Here, we are bound to rule likewise that appellant was prejudiced by the court's charge to the jury. The fact that appellant's statement to the police was offered into evidence does not alter our finding. The appellant's choice not to testify resulted in his not explaining his alleged flight and, therefore, wrongfully places the burden on him. Appellant's seventh assignment of error is sustained. B. Appellant next argues that the trial court prejudicially erred by failing to instruct the jury on self-defense. This argument is without merit. A criminal defendant has a right to expect the trial court to give complete jury instructions on all issues raised by the - 24 - evidence. State v. Williford (1990), 49 Ohio St.3d 247. This court noted in State v. Ervin (July 18, 1991), Cuyahoga App. No. 58835, unreported, at 6, that the trial court must charge the jury on self-defense in a felonious assault case where sufficient evidence warrants it. "To establish self-defense, the defendant must show: '*** (1) *** [he] was not at fault in creating the situation giving rise to the affray; (2) *** [he] has [sic] a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was in the use of *** force; and (3) *** [he] must not have violated any duty to retreat or avoid the danger. ***" Williford, 249, quoting State v. Robbins (1979), 580 Ohio St.2d 74, paragraph two of the syllabus. In the present case, we initially note that the appellant denied at trial that he was the shooter. Appellant's wife admitted at trial that she was the one who shot the victim. Appellant, therefore, is incapable of asserting self-defense under this set of facts. Even if appellant did not deny that he was the one in possession of the gun on December 31, 1987, the appellant's statement to the police contains insufficient evidence to warrant an instruction on self-defense. Therein the appellant stated that he pulled out a gun and fired it at the victim. The victim walked toward the appellant at that time with a gun in his hand. However, there is no indication that the victim pointed the gun at appellant or that appellant could not walk away as he did earlier. Accordingly, the trial court did not err in not instructing the jury on self-defense. - 25 - Appellant's eighth assignment of error is overruled. C. Finally, appellant contends that the trial court erred in its charge with regard to the issue of causation. The alleged prejudicial instruction reads: "Nowm [sic] the causal responsibility of the Defendant for the unlawful act or failure to act is not limited to its immediate or most obvious result. The Defendant is responsible for the natural, logical and foreseeable result that follow [sic] in the ordinary course of events, rom [sic] an unlawful act or failure to act. "Now, the test for foreseeability is not whether the Defendant should have foreseen the physical or attempted physical harm in its precise faom [sic] and is [sic] to the specific person. "The test is whether a reasonably prudent speson [sic], in light of all of the circumstances that existed at the time, would have anticipated that some physical harm or attempted physical harm was likely to result to anyone by the Defendant's performance of the act or failure to act." Appellant argues that the instruction on causation is consistent with a civil negligence case. Appellant cites to State v. Jacks (June 1, 1989), Cuyahoga App. No. 55415, unreported in support of his argument. This court in Jacks found that an erroneous jury instruction regarding causation undercut the mens rea requirement for murder. However, in State v. Cotton (June 7, 1990), Cuyahoga App. No. 57057, unreported, it was determined that the trial court's instructions to the jury which were essentially identical to the Jacks charge did not undercut the mens rea requirement for murder. The determination that the trial court correctly instructed the jury - 26 - on "natural consequences" and "foreseeability" was justified by referring to 4 Ohio Jury Instructions (1989), 68-70, Sections 409.55 and 409.56. In the present case, in accordance with Cotton, we are unable to conclude that the appellant was prejudiced as a result of the trial court's charge on causation. Appellant's ninth assignment of error is accordingly overruled. VI. Appellant, in his tenth and final assignment of error, contends that the trial court erred in denying his motion for acquittal. He argues that insufficient evidence was presented at trial to permit a rational fact finder to return a verdict of guilty. Motions for acquittal are governed by Crim.R. 29(A), which provides as follows: "The court on motion of a defendant or on it own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. the court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." Pursuant to this rule, a court shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Evans - 27 - (1991), 63 Ohio St.3d 231, 248. Accord, State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. The record in this case fails to indicate that the trial court erred in overruling appellant's motions for acquittal. The state presented evidence that the victim was shot in the stomach. The victim identified the appellant as the individual who shot him. The appellant moreover seemingly ignores the fact that he fully confessed in a written statement to the police albeit he denied that the statement was the truth. Reasonable minds could thus come to more than one conclusion as to whether each material element of felonious assault was proven beyond a reasonable doubt. Appellant's tenth assignment of error is accordingly overruled. Based on the resolution of appellant's seventh assignment of error, the judgment is reversed and the cause remanded for new trial. - 28 - This cause is reversed and remanded for a new trial. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. BLACKMON, J., CONCURS; DYKE, P.J., DISSENTS (See attached Dissenting Opinion.) SARA J. HARPER 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. - 29 - APPENDIX "I. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE COURT OVERRULED HIS MOTION TO DISMISS THE FELONIOUS ASSAULT CHARGE AFTER THE DEFENDANT HAD BEEN ACQUITTED OF THE OFFENSE OF HAVING A WEAPON UNDER DISABILITY." "II. THE COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING A MOTION TO SUPPRESS EVIDENCE BECAUSE THE DEFENDANT WAS ARRESTED WITHOUT A WARRANT AT HIS OWN HOUSE AND HIS SUBSEQUENT STATEMENT WAS A RESULT OF THAT IN VIOLATION OF THE FOURTH AMENDMENT AND PROVISION OF THE OHIO CONSTITUTION." "III. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF THE INTRODUCTION INTO THIS CASE BY THE PROSECUTION CONCERNING ALLEGATIONS OF DRUG DEALING BY THE DEFENDANT." "IV. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTING ATTORNEY WAS ALLOWED TO INTRODUCE EVIDENCE, ON REBUTTAL, CONCERNING COLLATERAL MATTERS AS TO IMPROPER CROSS-EXAMINATION OF A DEFENSE WITNESS." "V. DEFENDANT WAS DENIED A FAIR TRIAL WHEN IMPROPER HEARSAY EVIDENCE WAS OFFERED AS TO MATERIAL ISSUES." "VI. DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENT BY THE PROSECUTING ATTORNEY." "VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE JURY WAS UNCONSTITUTIONALLY INSTRUCTED AS TO FLIGHT." "VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO INSTRUCT UPON THE DEFENSE OF SELF- DEFENSE." "IX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE JURY WAS IMPROPERLY INSTRUCTED AS TO CAUSE AND THE CAUSAL RESPONSIBILITY OF THE DEFENDANT." "X. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTIONS FOR JUDGMENT OF ACQUITTAL." COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61262 STATE OF OHIO : : Plaintiff-appellee : : D I S S E N T I N G vs. : : O P I N I O N JOHNNY WILLIAMS : : : Defendant-appellant : : : DATE: DECEMBER 17, 1992 DYKE, P.J., DISSENTS: I respectfully dissent from the majority's resolution of appellant's seventh assignment of error. The majority cites the correct law regarding a court's instruction on the inferences to be drawn from a defendant's "flight" from the scene of a crime. However, the case before us is unique on its facts, and therefore, is distinguishable from the cases cited. In this case, the appellant had previously given a detailed statement to the police. The court's instruction to the jury specifically required them to look to appellant's statement for the explanation of his conduct in fleeing from the scene of the shooting. This instruction, unlike the instruction given in the cases cited by the majority, does not imply that the defendant has a duty to explain the circumstances of his flight by - 2 - testifying in court. He has already provided an explanation by way of his written statement. There is no indication by this instruction that the appellant should have testified in contravention of his Constitutional right to choose not to testify. I would overrule appellant's seventh assignment of error and affirm appellant's conviction. .