COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65866 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JAMES KITZLER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 23, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-270789. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Thomas Conway Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Jerry Milano, Esq. 600 Standard Building Cleveland, Ohio 44113 David L. Doughten, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 - 2 - DYKE, ANN, J.: Defendant-appellant James J. Kitzler ("Kitzler"), date of birth May 8, 1961, appeals from his jury trial conviction of one count of Aggravated Murder [R.C. 2903.01(A)] with a firearm specification [R.C. 2929.71]. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the victim, Ms. Kristin Kitzler, the wife of the defendant, was shot multiple times by Kitzler on August 7, 1991, at a fast-food restaurant located on Detroit Road in Cleveland, Ohio. The victim survived the shooting, but died from her wounds on August 23, 1991. Kitzler was indicted on September 5, 1991, and pled not guilty at the subsequent arraignment. On November 20, 1991, Kitzler was referred to the court's psychiatric clinic for a determination of his competency to stand trial. On January 23, 1992, a hearing on competency was held where the court determined that Kitzler was incompetent to stand trial and further ordered that Kitzler be institutionalized at the Dayton Forensic Center for the restoration of competency. On May 19, 1992, the parties stipulated to the report from the Dayton Forensic Center that Kitzler was competent to stand trial and the court referred Kitzler to the court psychiatric clinic for a determination of Kitzler's sanity at the time of the offense. The trial began on Monday, June 7, 1993. During opening statements, the parties agreed that Kitzler committed the killing - 3 - of his wife, but differed as to whether he was insane at the time of the offense. During its case-in-chief, the prosecution presented eleven witnesses. The first witness for the prosecution was Mr. William Lowery, who testified in pertinent part as follows (R. 18-38): (1) he is the father of the victim; (2) the victim and Kitzler had two children and had been married about eight years at the time of the killing; (3) in May of 1991, the victim separated from Kitzler in preparation of divorce; (4) the witness last saw Kitzler three days before the shooting, at which time the witness asked Kitzler to stop threatening the victim, to which Kitzler responded that if he could not have the victim and the kids he would kill them all; (5) in October of 1991, while searching the victim's apartment, the witness found some letters that the victim had written, and a book on psychiatry underneath the defendant's underwear in the bedroom dresser; (6) at the meeting with Kitzler three days prior to the shooting, Kitzler did not appear to act or behave in an abnormal manner. The second witness for the prosecution was Mr. Ricky L. Fabbri, who testified in pertinent part as follows (R. 39-81): (1) he is twenty-seven years old; (2) at the time of the shooting he was dating the victim; (3) he was present at the restaurant at the time of the shooting [approximately 6:00 p.m., August 7, 1991]; (4) Kitzler came into the restaurant clothed in military fatigues and boots carrying a box of ammunition, pulled out a firearm, and just before Kitzler shot the victim, the victim uttered "Jim, please - 4 - don't" (R. 42), and Kitzler shot the victim twice in the back; (5) the victim and two other employees then left through the back door, which was difficult to do because Kitzler's car was parked two feet from that door in the parking lot; (6) Kitzler then pointed a firearm at the witness and a female employee and told them to leave if they did not want to die; (7) the witness then ran down the street to a telephone and called the police; (8) the witness then returned to the restaurant and found Kitzler in the rear parking lot kneeling beside the victim's head with a firearm saying that he was sorry that he did it, but that he had to do it; (9) Kitzler, seeing the witness, dropped one firearm and picked up another, pointing it at the witness; (10) the witness then ran and hid behind a car in the lot, and told Kitzler that he should leave because the police were coming; (11) Kitzler just sat there; (12) a liquor bottle was perched on top of Kitzler's car, the same bottle that Kitzler had in his hand when he walked into the restaurant before the shooting; (13) the victim was working at the counter when she was shot; (14) the witness began dating the victim in early July, 1991, when she was separated and living in her own apartment with her two children; (15) when Kitzler entered the restaurant, Kitzler's manner was calm and he did not appear to be intoxicated; (16) about three weeks before the shooting, the victim told the witness that Kitzler had threatened to kill her and the children and that although she had talked about a possible - 5 - reconciliation with Kitzler, she had decided against it; (17) the victim was scared of Kitzler. The third witness for the prosecution was Mr. Michael Sawyer, who testified in pertinent part as follows (R. 82-91): (1) he was present at the restaurant at the time of the shooting and observed Kitzler point a firearm at a woman, shout "this is for you, bitch" (R. 83), and shoot the woman twice as the woman was running away; (2) outside after the shooting, the witness observed Kitzler by the victim in the rear parking lot; (3) Kitzler then pointed a revolver at the witness and the witness fled, thereafter informing the police about what had occurred. The fourth witness for the prosecution was Ms. Tamara Troicky, who testified in pertinent part as follows (R. 93-106): (1) she is a real estate agent who had known Kitzler and the victim since they were married; (2) several days prior to the shooting she was called by Kitzler to help in the sale of the Kitzler's home in Northfield, Ohio; (3) pursuant to an arranged meeting with Kitzler, she arrived at the Kitzler home at 4:00 p.m. on the day of the shooting; (4) when she arrived, Kitzler was speaking on the telephone with the victim, and he hung up; (5) Kitzler appeared normal, acted fine and coherent, and told her that he and his wife were going to reconcile; (6) the witness took the measurements of the home's interior rooms and told Kitzler that he and his wife would need to sign the anticipated paperwork for the listing of the house; (7) Kitzler was anxious to have the meeting conclude so that he could - 6 - meet his wife before she went to work; (8) the witness observed the liquor bottle, opened with some of the contents missing, in plain view in the kitchen of the house, but Kitzler showed no sign of intoxication; (9) although the witness had no recollection of his attire, Kitzler's attire at the meeting was not out of the ordinary. The fifth witness for the prosecution was Sreenivasa Murthy, M.D., who testified in pertinent part as follows (R. 107-123): (1) the witness is the forensic pathologist who conducted the autopsy of the victim for the county coroner's office; (2) the victim had three gunshot wounds causing numerous internal injuries which ultimately resulted in her death. The sixth witness for the prosecution was Ms. Arlene Torres, who testified in pertinent part as follows (R. 124-139): (1) she was working at the restaurant at the time of the shooting and corroborated the earlier testimony of those witnesses who observed the shooting, the car blocking the back door, the liquor bottle on top of the roof of the car, and Kitzler standing close to the victim in the parking lot as he shot her again; (2) the witness was familiar with the victim's only boyfriend, Ricky Fabbri. The seventh witness for the prosecution was Cleveland Police Detective Dan Rowley, who testified in pertinent part as follows (R. 141-154): (1) he is a firearms examiner with the department's scientific investigation unit; (2) three loaded firearms were recovered from the shooting scene, namely, a .357 caliber Smith & - 7 - Wesson revolver, a .25 caliber semi-automatic pistol of Italian origin, and a 9mm Intra-Tec semi-automatic pistol with two loaded magazines which had been taped together; (3) the weapons were firearms which operated in normal fashion upon investigation; (4) the victim was shot by rounds from the Intra-Tec pistol. The eighth witness for the prosecution was Cleveland Police Officer Don Rupanovic, who testified in pertinent part as follows (R. 154-157): (1) he picked up evidence from the hospital which treated the victim following the shooting and transported this evidence to the police department. The ninth witness for the prosecution was Cleveland EMS paramedic Scott J. Kolenz, who testified in pertinent part as follows (R. 159-162): (1) he responded to the scene of the shooting and transported the conscious victim to the hospital. The tenth witness for the prosecution was Cleveland Police Patrolwoman Vanetta Fountain, who testified in pertinent part as follows (R. 163-195): (1) she and her partner, Officer Beatty, responded to the scene of the shooting and were the first officers on the scene; (2) they located Kitzler kneeling over the victim in the rear parking lot saying that if he could not have her nobody could; (3) with weapons drawn, the officers ordered Kitzler to stand up and drop his weapon, a 9mm pistol; (4) Kitzler looked at the witness but did not drop his weapon; (5) the officers again ordered Kitzler to drop his weapon, at which time Kitzler looked around and seeing about twelve additional officers now on the - 8 - scene, complied with the order; (6) as the officer approached Kitzler slowly, she heard Kitzler tell the victim that he did not mean to do it; (7) Kitzler was arrested, frisked, advised of his constitutional rights and placed in the rear of a patrol car, at which time Kitzler kicked at the car's windows; (8) when told by the police that he would be shackled if he did not stop kicking the windows, Kitzler stopped his antics; (9) at the booking of Kitzler at the police station, the witness observed Kitzler answer all questions put to him; (10) Kitzler stated on the booking statement that he had no mental or physical conditions; (11) Kitzler's actions at the booking appeared very normal to the witness; (12) Kitzler gave her the keys to his car and an inventory search of the car revealed boxes containing miscellaneous things, some live rounds of ammunition, and a three-quarter full whiskey bottle on top of the car. The eleventh witness for the prosecution was Cleveland Police Homicide Detective Samuel Reese, who testified in pertinent part as follows (R. 196-202): (1) he assisted in the investigation of the case after the death of the victim and determined that the car at the shooting scene was registered to Kitzler. At this point the prosecution rested its case-in-chief and the court ruled on the admission of the prosecution's exhibits. The defense then moved for acquittal pursuant to Crim.R. 29. This motion was overruled. - 9 - The defense offered the testimony of three witnesses during its case-in-chief. The first witness for the defense was Mr. Emanuel Tanay, M.D., who testified in pertinent part as follows (R. 224-309): (1) he is a board certified psychiatrist from Michigan; (2) he became involved in the present case in July of 1992, when the defense contacted him to render an opinion on the sanity of Kitzler based upon a review of Kitzler's medical records and a two- hour interview with Kitzler on December 10, 1992; (3) it is the witness's opinion that Kitzler was predisposed to depressive illness which is a disease which affects the mood and emotions of a person, and that Kitzler suffered from this illness both before and after the shooting; (4) the illness was brought about by the sadomasochistic relationship existing between Kitzler and the victim; (5) the on again/off again nature of the marriage created stresses in Kitzler; (6) Kitzler always attempted to be compliant with the victim's wishes but these disturbed him despite his passivity; (7) when the victim called off the reconciliation, this caused Kitzler to enter a disassociative mental state so that he would not be fully conscious of what happens and lose control; (8) Kitzler suffered from sleeplessness, nightmares, and weightloss while he lived alone during the separation period; (9) Kitzler said that all he remembered before the shooting was putting on his Army boots and did not remember events thereafter until he was kneeling beside his wounded wife in the parking lot; (10) Kitzler indicated that he had trouble during his military service in the Army when he - 10 - went AWOL [Absent Without Official Leave] and was honorably discharged in 1985; (11) Kitzler met the victim, who was sixteen at the time, while in the service and married her in 1984; (12) difficulties in the marriage developed in 1990, when he suspected that the victim was seeing other people on a romantic basis, but he did not confront her; (13) in early 1991, Kitzler sought treatment for depression at the local Veterans Administration hospital; (14) in February, 1991, Kitzler attempted suicide; (15) the marriage was very tenuous thereafter resulting in the victim consulting an attorney and starting divorce proceedings; (16) Kitzler could not conceive of losing his wife; (17) the day before the realtor's visit, Kitzler told the witness that the victim told him to rent the movie "Sleeping With the Enemy," a movie wherein the wife shoots the husband, and after watching it Kitzler asked the victim if that is what she was planning to do to him, whereupon she just smiled; (18) Kitzler did not tell the witness anything about the particular firearms he carried to the shooting; (19) it is the witness's opinion that one is not acting rationally by going to a restaurant in broad daylight, dressed in fatigues, and armed with three firearms with extra ammunition, as if on a military-type mission; (20) it is the witness's opinion that Kitzler suffered from severe mental disease at the time of the shooting, and as a result was unable to recognize or appreciate the wrongfulness of his conduct or his act; (21) it is the witness's opinion that Kitzler was not lying and was not feigning amnesia about the event; - 11 - (22) the witness is being compensated at the rate of $225.00 per hour; (23) the witness did not talk to any of the eye-witnesses of the shooting, the real estate agent, any of the police officers, or Kitzler's family; (24) psychiatrists never seek to independently verify or discount the responses of a patient to ascertain whether or not that patient is telling the truth or exaggerating; (25) the witness issued his report on January 12, 1993, which did not include the trial testimony diagnosis of major depression with psychotic features; (26) Kitzler never mentioned a black man named Danny Dalton; (27) Kitzler never mentioned that he was studying psychiatry; (28) notations in the medical record from Dayton indicate Kitzler was having psychotic episodes during his nine- month stay at the facility, which were brought under control with anti-psychotic medications. Kitzler testified on his own behalf as the second witness for the defense, stating in pertinent part as follows (R. 315-395): (1) after the Army, he was employed by the U.S. Post Office for six-and-one-half years as a mail carrier; (2) he married the victim while in the Army in June, 1984, and has two children; (3) he loved his wife; (4) the marriage problems first started in 1990 and he received an anti-depressant medication [Sinequan] and counselling from the Brecksville, Ohio, Veterans Administration hospital at that time; (5) his wife would accuse him of having affairs when he would arrive home late, causing him to be depressed; (6) he once accidentally overdosed himself on the Sinequan, resulting in his - 12 - brief hospitalization, when his wife unfairly accused him of having an affair; (7) his wife had an affair with Danny Dalton, a black man, causing the witness to become further depressed; (8) he and his wife separated in April of 1991, each accusing the other of having extramarital affairs; (9) his wife would repeatedly seek a reconciliation and then renege on the overture; (10) the thought of divorce depressed him further; (11) his salary paid the majority of the family's expenses; (12) on the date of the shooting, before the realtor arrived at the house, the witness had imbibed a couple of shots of whiskey because he was feeling depressed about the thought of selling the house; (13) while the real estate agent was in the house, the witness had two telephone calls with the victim, during which the victim told him that she was divorcing him and that she hated him and wished he were dead; (14) he then panicked and told the real estate agent to go, that he had to see his wife and talk about this; (15) he remembers putting on his Army boots, then going to a gasoline station, then kneeling over his wounded wife in the parking lot telling her that she would be all right and that he was sorry; (16) he was very concerned about his wife's condition after the arrest and repeatedly sought information on the subject from the police; (17) he presently takes medication three times per day, Tranxene for his nerves, and at night he takes Loxapine to control psychotic episodes; (18) he still cries when he is alone and thinks about what has happened; (19) he knows his wife was having affairs with Rick Fabbri and Danny Dalton and this concerned him greatly - 13 - causing stress and depression; (20) he denies ever having seen the book on psychiatry or keeping books in his underwear drawer; (21) the firearms were his and he stored them in a closet along with ammunition; (22) he never signed for the divorce complaint at his house, although someone did accept service, and never saw that pleading; (23) he does not recall taking the whiskey bottle to the shooting; (24) on the day of the shooting he had had a few beers at a bar after leaving work at 3:30 p.m. but before the visit by the real estate agent at 4:30 p.m.; (25) he admits to having had an alcohol and drug abuse problem while in the Army; (26) on the date of the medication overdose he had been drinking alcohol earlier, and spent only one night in the hospital as a result of the overdose; (27) he was frustrated with his wife; (28) the drive from the house in Northfield to the restaurant would take approximately 45 minutes during weekday rush-hour traffic; (29) the victim's shift at the restaurant ended at 6:00 p.m.. The third witness for the defense was Mrs. Elizabeth Kitzler, who testified in pertinent part as follows (R. 402-411): (1) she is the mother of the defendant; (2) the defendant is very caring and sensitive, and loved his wife, lavishing her with anything that she needed or wanted; (3) the defendant and his wife had planned a regular wedding ceremony in July of 1991, but the wife called off - 14 - 1 the plans at the last minute ; (4) she learned after the shooting that the wedding had been called off. At this point the defense rested. In rebuttal, the prosecution offered the testimony of Mr. Massimo DeMarchis, Ph.D., who stated in pertinent part as follows (R. 413-525): (1) he is employed as a staff psychologist at the Dayton Mental Health Center, Forensic Unit; (2) in August of 1992, he evaluated Kitzler for purposes of determining whether Kitzler was sane at the time of the shooting; (3) he was able to observe and counsel Kitzler for several months during Kitzler's stay at the facility; (4) he evaluated Kitzler to be a high functioning individual with appropriate behavior and not disturbed by perceptual disturbances; (5) while at the facility, Kitzler dated a fellow female patient for several months, including correspondence between the pair while Kitzler was away from the facility; (6) Kitzler's military records indicated that he had episodes of alcohol abuse with blackouts and violent outbursts; (7) Kitzler never mentioned the name Danny Dalton; (8) the results of the Minnesota Multiphasic Personality Inventory Test ("MMPI") administered to Kitzler on August 18, 1992, indicate that Kitzler was attempting to portray an individual who was extremely disturbed in order to deceive the examiner; (9) the witness diagnosed Kitzler as having an adjustment disorder with depressed mood, which is a 1 The couple had originally been married by a justice of the peace and it was thought that a formal wedding ceremony at this later date would help in saving the marriage. - 15 - temporary reaction to a highly definable stress event, such as loss of a job or loved one; (10) it is the opinion of the witness that Kitzler was sane at the time of the shooting due to the complete absence of psychotic disorder in the months or days preceding the shooting and any amnesia surrounding the shooting was not the result of mental illness; (11) it was the opinion of the witness that Kitzler was probably under the influence of alcohol at the time of the shooting, and that he knew right from wrong at the time of the offense. The second witness offered by the prosecution on rebuttal was Ms. Connie George, who stated in pertinent part as follows (R. 526- 532): (1) she is employed as the Chief Deputy at the Summit County Clerk of Courts office; (2) the complaint and temporary restraining order in the divorce case of Kitzler v. Kitzler, Summit County Domestic Relations Case No. 91-06-273, indicates that summons of process was made at the Kitzler home, although the signature of the person signing for the papers is illegible except for the initial "J." The third witness offered by the prosecution on rebuttal was Mr. Thomas W. Hall, Ph.D., who testified in pertinent part as follows (R. 533-561): (1) he is a clinical psychologist who works part-time at the Cuyahoga Common Pleas Court Psychiatric Clinic in addition to his private practice in a suburban location; (2) he examined Kitzler to determine whether the defendant was sane and issued a report on that subject on June 24, 1992; (3) in addition - 16 - to the personal interview with Kitzler, the witness relied upon collateral information from the prosecutor's file and earlier medical information and tests results, which included an MMPI test which the witness had administered to the defendant on July 8, 1992; (4) it was his opinion that Kitzler was feigning mental illness; (5) Kitzler was medicated while in jail with anti- depressants because he had expressed feelings of anxiety about his future, and his childrens' future, and desired to be executed for what he had done; (6) although Kitzler was tense and unhappy and cried at times, the defendant spoke in a coherent and organized manner, in line with reality; (7) Kitzler admitted to having abused drugs and alcohol; (8) he diagnosed Kitzler as having adjustment disorder with mixed emotional features, to-wit, depression and anxiety at the time of the shooting, and further opined that Kitzler was sane at the time of the offense and at the time of his evaluation by the witness; (9) the witness found no evidence of psychosis, i.e., a break with reality or inability to comprehend reality, with Kitzler. The fourth witness offered on rebuttal by the prosecution was Ms. Rachael Vermes, who testified in pertinent part as follows (R. 562-581): (1) she and the victim worked together at the restaurant; (2) the victim, crying, once telephoned the witness during the afternoon in late May or early June complaining that Kitzler had a gun and was chasing her and the children on State Route 82; (3) the witness was aware that the victim had filed for - 17 - divorce; (4) she was not aware that the victim was having an affair with Danny Dalton, she never saw the two of them together; (5) after the divorce was filed, the victim did come to work once with bruises on her neck and crying hysterically, so much so that the witness sent the victim home. On surrebuttal, the defense offered the testimony of the defendant, who stated in pertinent part as follows (R. 582-585): (1) he never chased his wife on State Route 82; (2) he never inflicted any bruises on his wife's neck, and the bruises that he did see on her neck were hickeys which his wife said were caused by wrestling with her uncle Steve. At this point the defense rested. Following closing arguments and the jury instructions, the jury returned a verdict of guilty to the offense and specification outlined in the first paragraph of this opinion. The trial court then sentenced Kitzler to: three years actual incarceration on the firearm specification; twenty years to life imprisonment on the aggravated murder charge; sentences to run consecutive. This appeal followed presenting four assignments of error. I THE TRIAL COURT PROVIDED THE JURY WITH AN ERRONEOUS DEFINITION OF INSANITY WHICH VIOLATED THE STATE AND FEDERAL CONSTITUTIONAL EX POST FACTO CLAUSES. The jury instruction provided by the court on the insanity defense is the following: - 18 - Sanity. The plea of not guilty by reason of insanity raises the issue of the sanity of the Defendant at the time of the commission of the act. Defined. To establish the defense of insanity, the Defendant must prove by the greater weight of the evidence that at the time of the offense, he did not know, as a result of a severe mental disease or defect, the wrongfulness of his act. It is not a defense and the Defendant's reasoning, at the time of the offense, was so impaired that he did not have the ability to refrain from doing his act or acts. (R. 687.) This instruction on the insanity defense is drawn from R.C. 2901.01(N), effective date August 8, 1991, which provides as follows: (N) a person is "not guilty by reason of insanity" relative to a charge of an offense only if he proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, he did not know, as a result of a severe mental disease or defect, the wrongfulness of his acts. Appellant argues that because his offense occurred on August 7, 1991, one day prior to the effective date of the statute relied upon by the trial court in its instruction on the insanity defense, the statute on the insanity defense existing prior to the effective date of August 8, 1991, is controlling and the trial court erred in not applying that earlier section in its jury instruction. Appellant's point as to which version of the statute is controlling is well-taken, however there was no error in the trial court's instruction because the version of R.C. 2901.01(N) in effect at the - 19 - time of the offense is identical to the version effective August 8, 1991. See R.C. 2901.01(N), effective July 24, 1990. The first assignment of error is overruled. II THE TRIAL COURT ERRED BY NOT PRECLUDING AN ORAL STATEMENT FROM THE TESTIMONY IN CONTRAVENTION OF THE CRIM.R. 16(B). The oral statement to which this assignment refers arises from the examination of Officer Fountain, in which she indicated that while at the scene of the offense, Kitzler made an oral statement indicating that (1) he was sorry for what had occurred and (2) that if he could not have the victim then nobody could. Defense counsel objected to the second statement on the basis that it had not been mentioned by the witness in her police report which was provided to 2 the defense during discovery . (R. 185-186.) The trial court overruled the objection. The defense then made a motion for mistrial based upon prosecutorial misconduct in allegedly not supplying that oral statement in discovery. The trial court denied the motion for mistrial. Crim.R. 16(B)(1)(a) provides: (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. (a) Statement of defendant or co- defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to 2 The police report of Officer Fountain did mention the oral statement by Kitzler that he was sorry for the shooting. - 20 - permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of reasonable due diligence may become known to the prosecuting attorney: * * * (ii) Written summaries of any oral statement, or copies thereof, made by the defendant or a co-defendant to a prosecuting attorney or any law enforcement officer; (Emphasis added.) * * * In the present case, the prosecutor complied with Crim.R. 16 by providing Officer Fountain's police report to the defense in discovery. Furthermore, Officer Fountain, during extensive and vigorous cross-examination by the defense as to Kitzler's statements, testified that she did not mention the oral statement in her report and told the prosecutor that Kitzler made no oral statement other than that he was sorry. (R. 188.) There is no information that the prosecutor was aware that the statement had been made, or that the prosecutor lacked reasonable diligence in not discovering the oral statement. Accordingly, we conclude that the trial court did not abuse its discretion in not sanctioning the prosecution by excluding the oral statement pursuant to Crim.R. 16(E)(3). State v. Adkins (1992), 80 Ohio App.3d 211. The second assignment of error is overruled. III THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE IRRELEVANT AND UNFAIRLY PREJUDICIAL OTHER ACTS INTO EVIDENCE IN VIOLATION OF EVID.R. 404(B). - 21 - Evid.R. 404(B) provides: (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The other acts of which appellant complains are the introduction of evidence concerning the following: (1) Kitzler's military record (R. 287); (2) Kitzler allegedly chasing the victim with a gun in the vicinity of State Route 82; (3) Kitzler allegedly beating and choking the victim so as to cause bruising which was evident when she came to work and caused her to be sent home; and, (4) Kitzler allegedly having raped the victim (R. 584). Appellant's brief, at 15 and 18. The military record was introduced during the cross- examination of Dr. Tanay by the prosecution, to-wit: Q. If you found out that the Defendant was lying to you about certain things, would you change your opinion about whether or not he was sane at the time of the act? A. It would depend on what he was lying about. Q. What about if he was lying about only being in trouble once in the Armed Forces? MR. MILANO: Objection, Your Honor. THE COURT: Sustained. (R. 286- 287)(Emphasis added). - 22 - Having sustained the objection, the court in its instructions advised the jury to disregard matters to which an objection had been sustained. Viewing the vast amount of other evidence elicited at the trial, we cannot say that this one small piece of interrogation influenced the jury to return a guilty verdict, thus any error in its introduction, which was minimal and not repeated, was harmless. As to the evidence of threatening the victim with a gun and beating/choking the victim, we conclude that these were proper uses of other acts of evidence. Kitzler and his witnesses testified at length detailing the alleged gentle, passive, and loving nature of the defendant. The other acts complained of were "an appropriate impeachment by specific acts which directly contradicted appellant's self-characterization" pursuant to Evid.R. 404(B). See State v. Greer (1988), 39 Ohio St.3d 236, 243. Concerning the allegation of rape, the record reflects that the question by the prosecutor on the cross-examination of Kitzler was asked only once, was answered "That's ridiculous" by Kitzler, and was instantly objected to by the defense. The court sustained the objection and admonished the jury to disregard the comment that he had raped her. (R. 584-585.) We cannot say that this brief exchange, which was in substance denied by Kitzler, was so prejudicial as to have changed the course of the trial and unfairly tainted the verdict. Accordingly, this piece of evidence was harmless. - 23 - The third assignment of error is overruled. IV THE TRIAL COURT ERRED BY ALLOWING IRRELEVANT TESTIMONY AND ARGUMENT REGARDING THE RESULT OF AN INSANITY FINDING BY THE JURY. The passages which form the basis for this assignment occurred during the prosecutor's cross-examination of Dr. Tanay and during closing argument. Before proceeding to the merits of this assignment, we recognize that only relevant evidence should be admitted at trial, see Evid.R. 401, and we further advise the parties that 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, depriving him of a fair trial. State v. Smith (1984), 14 Ohio St.3d 13, 14; State v. Maurer (1984), 15 Ohio St.3d 239. A prosecutor is afforded wide latitude in closing arguments. State v. Jacks (1989), 63 Ohio St.3d 200, 210. An attorney should not express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused or allude to matters which are not supported by admissible evidence. State v. Smith, supra at 14. However, it is within the trial court's discretion to determine if a prosecutor has gone beyond the bounds permitted and that determination will not be reversed on appeal absent an abuse of discretion. Pang v. Minch (1990), 53 Ohio St.3d 186, 194. Further, prosecutorial misconduct must be considered in light of the entire case. State v. Maurer, supra. - 24 - The following exchange took place during the cross-examination of Dr. Tanay: Q. What did he [Kitzler] tell you, that he couldn't remember anything? A. Precisely. That's what he told me, but I know this is consistent with everything in this case. What does he have to gain by saying he doesn't remember and then he is trying to? Q. What does he have to gain, Doctor? A. Yes. Q. What does he have to gain? A. Yes. Q. He gains by walking out of here with a verdict of not guilty by reason of insanity. A. He stays in the hospital. Q. He comes out when the hospital wants to release him. There's no guarantee that he stays in the hospital. A. That's not true. Q. There's no guarantee that he stays in the hospital. You know it. A. If he satisfies all of these 10 years or 15, whatever it is; don't make up these stories. THE COURT: Oh, Doctor, I think you are in contempt of court. MR. CONWAY [prosecutor]: Thank-you, Your Honor. THE WITNESS: He is yelling at me. THE COURT: I -- (R. 299-300) (Emphasis added) [Explanation added]. - 25 - The foregoing exchange, which was predicated by the response of the witness and therefore fair game for additional comment, was not objected to at trial and did not amount to plain error. State v. Caldwell (1992), 79 Ohio App.3d 667. Accordingly, error therein, if any, was waived for appellate purposes. State v. Williams (1977), 51 Ohio St.2d 112. During the closing argument by the defense, which the appellant neglects to mention in his appellate brief, the following was stated by defense counsel, Mr. Jerry Milano: He [Dr. DeMarchis] thought he [Kitzler] was malingering about that [Kitzler's amnesia]. Talk about that back there [during deliberations], was he [Kitzler] malingering about that? What does the man have to gain by saying he doesn't remember? (R. 649) [Explanation added]. * * * I suggest to you that he [Kitzler] belongs in a mental institution, a State mental institution such as Dayton, not in the penitentiary. (R. 655-656) [Explanation added]. In response to defense counsel's closing argument, the prosecution made the following comments during rebuttal: Mr. Milano says he belongs in a mental hospital. Why? He is not insane. You heard him testify here. He was not insane when he was on the witness stand. MR. MILANO: Judge, that's not the issue here. THE COURT: Please. - 26 - MR. MILANO: Objection. THE COURT: Overruled. MR. MILANO: Go ahead. I am sorry. MR. CONWAY: So what good would putting him in a mental hospital do? He has got to be held accountable for his actions. (R. 657- 658.) * * * He can come up here with his little sympathy all he wants and he walks out of here and he is living. He can carry on relationships. MR. MILANO: Object to "walk out of here," and he pointed to the door. He goes back to jail. MR. CONWAY: You are not going to decide this case on sympathy. One person deserves sympathy and it is certainly not him. (R. 660- 661.) The prosecutor's comments concerning the unneeded institutionalization given the belief that Kitzler was sane were justified and could be inferred from the evidence. Certainly, it would be entirely unproductive to place Kitzler in a mental hospital if one were to conclude that he was sane at the time of the offense. As to the final comment by the prosecution where it was intimated that Kitzler would walk out of the courtroom accompanied by a pointing gesture by the prosecutor toward the door to the courtroom, we conclude that this was misconduct on behalf of the prosecutor because this personal opinion appealed to the inflammation of fears and passions, rather than the facts of the - 27 - case. However, considering the entire record, we cannot say that the defendant was deprived of a fair trial or that, but for this improper remark, the result of the trial would have been different. The fourth assignment of error is overruled. Judgment affirmed. - 28 - 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. DONALD C. NUGENT, P.J., and JOSEPH J. NAHRA, J., CONCUR. ANN DYKE 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. .