COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67462 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RONALD ROY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 12, 1995 CHARACTER OF PROCEEDING: Criminal proceeding from Common Pleas Court Case No. CR-296590 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. SUZANNE HORRIGAN, ESQ. Cuyahoga County Prosecutor 400 Terminal Tower MICHAEL D. HORN, ESQ. 50 Public Square JOHN W. MONROE, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorneys The Justice Center BETTY C. FARLEY, ESQ. 1200 Ontario Street 1015 Euclid Avenue, 3rd Floor Cleveland, Ohio 44113 Cleveland, Ohio 44115 - 2 - KARPINSKI, J.: Defendant-appellant, Ronald Roy (hereinafter referred to as "defendant"), appeals from the judgment of the trial court finding defendant guilty of involuntary manslaughter. On appeal, defendant argues 1) the trial court erred in not granting defendant's motion for a bill of particulars, 2) the indictment was not sufficiently specific, 3) the jury verdict was against the manifest weight of the evidence, and 4) the jury instruction was incorrect. For the following reasons, we find no merit to defendant's arguments and affirm the judgment of the court below. The relevant facts follow. Reginald Bradley died after three men punched, kicked, and slammed him onto the pavement. He died in a pool of blood as a crowd at the park stood by and watched. Defendant, one of the men who assaulted the victim, was charged with a single-count indictment on May 12, 1993. The indictment charged defendant with purposely causing the death of the victim on April 28, 1993. After some pretrial discovery, the defendant was tried on September 8, 1993. The first witness for the prosecution was Officer Debra Miller. Officer Miller was working as a paramedic on April 28, 1993. Called to a park located at 3890 East 149th street, Ms. Miller found the EMS team attempting to revive Reginald Bradley, who was lying in a pool of blood. The victim's face was almost unrecognizable with heel marks on the head and his teeth knocked - 3 - out. The victim was pronounced dead upon arrival at the hospital. At the park, twenty to twenty-five people continued to play basketball and did not want to talk about the incident. The next witness for the prosecution was Detective Richard Martin, a homicide detective for the City of Cleveland. After arriving at the scene and interviewing possible witnesses, he identified three possible suspects: Ladon Spencer, Tshombe Chambuss, and defendant, Ronald Roy. Tshombe Chambuss admitted to murdering defendant and was adjudged a delinquent in Juvenile Court. Chambuss was at the park on April 28, 1993, when he observed the victim approach the defendant in order to buy additional crack cocaine. The defendant then questioned the victim about some money the victim owed him. At this point, according to Chambuss, Ladon Spencer punched the victim in the mouth twice, and the victim fell to the ground. Because the defendant threatened to hurt Chambuss if he did not join the assault on the victim, Chambuss kicked the victim in the shoulder. When the victim tried to run away, the defendant chased him, grabbed him around the waist, and slammed him to the ground in such a manner that the victim's face and head hit the pavement and his neck popped. As the victim lay motionless, the defendant slammed the victim's head into a bench. Again, the defendant picked up the victim and once more slammed him headfirst onto the pavement. Dr. Challener, the Chief Deputy Coroner of Cuyahoga County, testified that the victim's death was caused by multiple blunt - 4 - impacts to the head. He further opined that the injuries to defendant's face did not contribute to the injuries to the victim's brain. Cocaine was found in the victim's system. The fourth witness to testify was Titus Powers, who had received a ride to the park with the victim. Powers saw the victim and defendant engage in an argument after which Ladon Spencer hit the victim, who fell to the ground. Powers then observed the defendant pick up the victim and throw him over the bench with the victim landing on his back. After Chambuss kicked the victim, the defendant picked up the victim again and slammed him, headfirst, onto the concrete. On cross-examination it was revealed that Powers originally told the police that Chambuss kicked the victim in the head after defendant had slammed the victim to the ground. Ladon Spencer was the fifth witness. Upon taking the stand, Spencer admitted to prior drug convictions and to pleading guilty to one count of involuntary manslaughter for the death of Reginald Bradley. He testified that he confronted the victim about some money the victim owed him. Spencer admitted hitting the victim twice, after which defendant slammed the victim onto the concrete twice. Spencer also testified that Chambuss kicked the victim after the defendant threw the victim to the ground the first time. The final witness for the state was Detective Matuszny of the Cleveland Police Department, Homicide unit. He testified concerning his investigation of the case and read defendant's two - 5 - police statements. In his first statement, defendant said he did not throw the victim to the ground. In the second statement, given the next day, defendant admitted to "scoop-slamming" the victim onto the pavement. Christopher Gipson was the first witness to testify for the defense. He stated that as a result of Ladon Spencer hitting the victim twice in the face the victim fell toward defendant. Gipson observed defendant merely push the victim aside as he fell toward defendant. At this point, Chambuss ran in and kicked the victim twice in the head. The second witness, Kevin Reddick, also testified that defendant did not violently slam the victim onto the pavement; defendant merely pushed the victim aside. On cross-examination, Reddick admitted he told the police that the defendant slammed the victim to the ground. The final witness, Ronald Roy, Sr., was not present when the victim was killed. He testified only about taking his son to the police station to make a statement. The jury found defendant guilty of the lesser included offense of involuntary manslaughter, for which he was sentenced to ten to twenty-five years incarceration. Defendant timely appealed raising four assignments of error. Defendant's first assignment of error states as follows: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR THE PROSECUTOR TO FURNISH A BILL OF PARTICULARS. In this assignment of error, defendant argues that the trial court committed reversible error when it failed to order the - 6 - prosecution to provide a bill of particulars to the defendant. By proceeding to trial without a bill of particulars, however, defendant waived any claim of error concerning the failure to receive a bill of particulars. State v. DePaul (1971), 25 Ohio App.2d 39; State v. Patrick M. Haffey (Sept. 2, 1993), Cuyahoga App. No. 63576, unreported. Moreover, in order to allege any error by the trial court in failing to order a bill of particulars the defendant must demonstrate prejudice. Haffey, supra; State v. Beavers and Smith (June 18, 1984), Cuyahoga App. Nos. 46513 and 46549, unreported, at 6-7. In this case, because he did, in fact, proceed to trial, defendant waived any objection concerning a bill of particulars. Moreover, defendant did not demonstrate he was prejudiced by not having a bill of particulars. On the contrary, defendant was aware of the time and date of the offense. The state named, furthermore, all the potential state witnesses during discovery. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE INDICTMENT WAS NOT SUFFICIENTLY SPECIFIC AS TO THE NATURE OF THE OFFENSE CHARGED AND SAID INDICTMENT FAILED TO IDENTIFY THE APPELLANT'S CONDUCT ALLEGED TO CONSTITUTE THE OFFENSE. In this assignment, defendant alleges that the indictment in this case was not sufficiently specific. The indictment states as follows: The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE - 7 - STATE OF OHIO, Do find and present, that the above named Defendants(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully did purposely cause the death of Reggie Bradley, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio. The indictment also specified the date of the offense as April 28, 1993. An indictment is sufficient if it gives notice of the offense with which defendant is charged. State v. Oliver (1972), 32 Ohio St.2d 109; State v. Reyna (1985), 24 Ohio App.3d 79. In this case the indictment was sufficiently specific; it gave the defendant notice that he was being charged with the murder of Reggie Bradley on April 28, 1993. Defendant was able to prepare a murder defense based on this charge. Accordingly, this assignment of error is overruled. Defendant's third assignment of error states as follows: THE JURY'S VERDICT WAS INVALID AS BEING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, OR AS PREMISED UPON INSUFFICIENT EVIDENCE. Initially, defendant challenges the sufficiency of the evidence to sustain a conviction for involuntary manslaughter. In reviewing a Crim.R. 29(A) motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. - 8 - Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds can not convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not be given to the jury. Id. In the case at bar, sufficient evidence was presented to sustain a conviction for involuntary manslaughter. Revised Code 2903.04 defines involuntary manslaughter as follows: (A) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony. Involuntary manslaughter has been classified a "lesser-included offense" of murder. State v. Campbell (1991~), 74 Ohio App.3d 352; State v. Doss (Feb. 1, 1990), Cuyahoga App. No. 56569, unreported. In this case, the prosecution presented evidence that the defendant caused serious physical harm which resulted in the victim's death. The state presented evidence, in the form of witness testimony, that defendant slammed the victim's head to the pavement and that the head injuries proximately resulted in the victim's death. Accordingly, sufficient evidence was presented to convict the defendant of involuntary manslaughter. The second issue in this assignment of error is whether the conviction is against the manifest weight of the evidence. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the - 9 - credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. In this case, the trier of fact heard the testimony from three witnesses that stated that the defendant threw the victim headfirst onto the pavement. The jury also heard the defendant's police statement in which he admitted to slamming the victim's head onto the concrete. The coroner testified that the injuries to the victim's head were the cause of death. The jury, which was in the best position to observe the appearance and demeanor of these witnesses, was entitled to accept this version of the facts. State v. DeHass (1967), 10 Ohio St.2d 230. Accordingly, the verdict finding defendant guilty of involuntary manslaughter was not against the manifest weight of the evidence. This assignment of error is overruled. Defendant's fourth assignment of error states as follows: THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT CHARGED THE JURY WITH INSTRUCTIONS WHICH TRANSFORMED THE REQUIREMENT OF SPECIFIC INTENT TO KILL INTO A "NEGLIGENCE" STANDARD. In this assignment of error, defendant challenges the jury instructions. Defendant, however, did not object to the jury instructions at the time they were given by the trial court. If no objections to jury instruction are made at the time of oral argument, to succeed on appeal, any error in jury instructions - 10 - must constitute plain error. State v. Underwood (1983), 3 Ohio St.3d 12; Crim.R. 30. Defendant argues that the trial court instructions were in error because an instruction on causation was given as part of the jury charge. Defendant's argument is misplaced. The causation instruction was given in reference to the lesser included offense of involuntary manslaughter. Ohio Jury Instructions on involuntary manslaughter contain an element of causation. 4 Ohio Jury Instructions (1994) 123, Section 503.04. Accordingly, because the defendant has not demonstrated plain error regarding the instructions to the jury, this assignment of error is overruled. Judgment affirmed. - 11 - 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 Cuyahoga County 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. PATTON, C.J., and DYKE, J., CONCUR. DIANE KARPINSKI 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 .