COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67928 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH APGER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 26, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 302145 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones James A. Draper Cuyahoga County Prosecutor Cuyahoga County Public Def. By: Stephen L. Miles By: Jean M. Gallagher Assistant Prosecuting Attorney The Marion Building - Rm. 307 The Justice Center 1200 West Third Street 1200 Ontario Street 100 Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, Joseph Apger, appeals from his conviction for felonious assault following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant attacks the trial court's evidentiary rulings, and claims he was denied the effective assistance of trial counsel, and the verdict is against the manifest weight of the evidence. A careful review of the record compels affirmance. Louis Leniz ("the victim") testified that he lived at 2025 West 93rd Street on August 20, 1993 with his common-law wife, Lisa, and their two children. At approximately 7:30 p.m. on that date, Lisa argued with a neighbor, Becky Casto, about loud music coming from Becky's apartment, a frequent occurrence. The victim testified further that at about 8:00 p.m., appellant and Becky's stepson, Johnny, crossed West 93rd Street toward the victim's house while carrying baseball bats. Two men, Kurt and Mike, were outside at the time. Appellant threatened to gather his friends in order to cause trouble, so Kurt struck appellant. When Becky's husband, John, exited the apartment building with a shotgun, everyone, including the victim, fled the area. The victim returned to his house at about 2:00 a.m., accompanied by Lisa, and a few friends, Trish, Kara and Matt. He testified that as he drove past the Castos' apartment building, "they started throwing beer bottles and bricks off the second floor -3- of the building." The victim then parked his car in a neighbor's driveway. The victim testified that the people from across the street were hiding in the bushes with weapons in their possession. Specifically, John now held a nunchak (Chinese fighting stick) and Johnny and his friend held baseball bats. The victim, curious as to what prompted their behavior, seized Johnny's bat and John started to swing the nunchak at him. After the victim blocked John's blows, John and Johnny went inside the apartment building. Johnny and Becky came back outside with knives in their possession. The victim hit Becky's hand with the bat in order to release the knife, and was struck by John who still held the nunchak. John fled and was followed by the victim because the victim wanted to reach a truce with him. The victim testified that he saw Danny Woods standing on the sidewalk at this time with the shotgun. Woods approached the victim. As the victim told Woods not to shoot him, the victim was shot in the abdomen. He fell to the ground and rolled over. Lisa arrived in their car, and transported him to St. John's Hospital, which was no longer a treating facility. An ambulance was called, and subsequently transported appellant to Lakewood Hospital where he underwent surgery and remained for five days. The victim recalled that though appellant was not present during the confrontation with John and Johnny, the appellant stood on the Castos' porch on the second floor of the apartment building -4- when he was shot. When questioned at trial whether he knew who shot him, the victim responded that it was appellant: Q. There is absolutely no doubt in your mind that Joe Apger, whom you previously identified, is the person who shot you? A. There is no doubt in my mind whatsoever. The victim's wife, Lisa, testified that on August 20, 1993 in the early evening hours, she confronted Becky Casto about the loud parties held at the Castos' apartment. Lisa testified further that she observed a struggle in the street between 8:00 and 9:00 p.m., but she could not identify who was striking blows. She was on her porch, but ran into the house when she heard that someone had a gun. The victim and his friends also left the area because of the gun. After Lisa took her children to a friend's house, she, Trish and Mike went in search of the victim. They found him at a bar on Lorain Avenue. The victim drove around for a while and then to his home about 45 minutes to an hour later. As he drove, according to Lisa, "[t]hey come running towards the car and was throwing beer bottles at the car and Becky was on the porch yelling, 'Kill that spic and his wife.'" The victim drove away and returned sometime later, pulling into a neighbor's driveway. Lisa testified that people started running at the car. The victim jumped out of the car. Lisa did not witness any of the subsequent events in any great detail. She remembered that she heard a bang, knew it was a gunshot, and returned to the car. Lisa -5- threw the car into reverse; bullets struck the vehicle as she started to back it up. She drove to the corner of West 93rd Street and Madison Avenue where she found the victim "hunched over holding his stomach." Lisa did not see who fired a gun at the victim, but she recalled that appellant made general threats about "getting them" earlier in the evening. Daniel Woods testified that he arrived at the Castos' apartment building on August 21, 1993 at approximately 1:00 a.m. He spoke and drank beer with friends on the downstairs front steps. John and Becky were upstairs in the apartment with appellant. Woods knew appellant because appellant dated Woods' sister, Daphne Kaptain. According to Woods, a fight started between John and the victim. John held a nunchak and the victim removed a baseball bat from his car. The victim first hit Becky with the bat; Woods could not confirm that Becky carried any weapon. The victim next went after John who was near a field, and hit him with the bat. John fell to the ground, but the victim continued to strike him. Woods testified that he then picked up the shotgun which was laying on the ground. He saw appellant standing by the field, by some bushes, and estimated that he was about 25 feet away from the victim. Appellant held a rifle. Woods pointed the shotgun into the air to shoot it, but there was no ammunition. He then heard one gunshot, but did not see appellant shoot the rifle. Woods took off and went to his mother's house via a nearby alley. Woods testified that from his position -6- on the porch of his mother's house, he saw appellant and his brother, Dave Apger, run through the alley and around the block. Kurt Morgan testified that he arrived at the Castos' apartment between 8:30 and 9:00 p.m. on August 20, 1993. Becky, John, Johnny, Dave Apger, Woods and appellant were present. Morgan testified further that Becky went downstairs and yelled across the street. The victim drove up in his car, exited, and ran toward Becky with a baseball bat. The victim stated something to her like, "'Oh, bitch, aren't you going to stab me, huh?'" Morgan, however, never saw that Becky held a knife. Morgan went downstairs, but stayed in the stairwell. Everyone else was now downstairs as well. Morgan testified that both John and appellant carried shotguns. Morgan then heard a gunshot. He testified that he saw appellant standing in the back of the apartment building where there were bushes, with a weapon. Morgan, during cross-examination, testified that there was a light in front of the Castos' apartment which shined on West 93rd Street. However, it did not illuminate the second floor porch. Elmer "Sonny" Horne testified that he lived at 922 West 93rd Street in a garage apartment. On August 21, 1993, he was awakened by loud noises. He opened his apartment door, looked out, and heard someone yell, "'Let's get the F out of here.'" Horne testified that the voice sounded like that of appellant. Horne moreover saw two men running through the alley, one he positively identified as appellant. -7- Horne testified further that appellant held a rifle. He opined that the rifle was a .22 caliber. Horne buttressed his opinion as follows: Q. How could you tell it was a .22? A. I used to own one. The bright light was shining right on it. The only thing his hand was over was the top of the rifle. It could or could not have been a scope. I could not tell that. But it was definitely a .22 that took a clip. You could see the clip on the bottom. The state questioned Horne as to his ability to see the events clearly. Horne explained that spotlights come on when someone gets to a certain point in the alley because a local church was trying to prevent vandalism. The spotlights illuminated "everything, the entire parking lot, alley and all." Daphne Kaptain testified that she lived with her mother on West 93rd Street. She knew appellant for about one and one-half years and began dating him in November 1993. Their dating relationship ended about two months prior to trial. On August 20, 1993, Daphne arrived at a neighboring apartment of the Castos' at about 8:00 p.m. to babysit for someone named Laura. Daphne visited with John, Becky, Johnny, appellant and other individuals and then left the building. Daphne testified that she returned to the area between 9:30 and 10:00 p.m. She learned that the victim beat appellant up while she was away. Daphne observed that appellant's knees and elbows were scratched. She then went home. -8- Daphne testified that she arrived at the Castos' for a third time that evening and subsequently witnessed fighting and arguing. Daphne saw that Becky now held a kitchen knife, the victim held a baseball bat, and her brother, Woods, held a gun. Daphne ran home to get her mother. Woods' and Daphne's mother arrived at the scene of the fighting and advised her son to put the gun down and return home. Daphne testified that she then went home, followed by her mother and then Woods. Daphne heard a gun firing, but did not see who fired it. According to Daphne, she saw appellant just before the shooting. Her cross-examination revealed that Woods put the shotgun down before he followed his mother home and prior to the shooting. The trial court questioned Daphne in order to clarify the number of weapons seen by her during the episode. Daphne testified that she saw two guns that evening -- one was held by Woods, the other was on the ground by the field and next to the apartment building. Patrolman Edward Massa testified that he was dispatched to the area of West 93rd Street and Madison Avenue on August 21, 1993 at approximately 2:00 a.m. The report was for shots fired. He and his partner arrived at the scene about five minutes later. Massa observed about thirty people, "chaos out in the middle of the street, screaming, yelling, running in all directions." The only evidence recovered was a shell laying on the sidewalk across from the field. -9- Detective Henry Veverka received Massa's initial crime report the following day. Veverka was unable to immediately speak with the victim because he was recovering from surgery. The Castos provided individual written statements to the detective. Six or seven other individuals also provided written statements. Veverka testified that appellant was subsequently arrested based upon the information received from others. Since the bullet which struck the victim remained in his body, there was no conclusive evidence regarding the bullet's size. Veverka nonetheless offered that based upon the knowledge gathered from his fifteen years of service as a police officer, the victim's wound was not consistent with a shotgun blast. The wound, however, was consistent with a .22 caliber weapon. Veverka moreover stated that the victim's scar was also possibly caused by a .22 caliber weapon. Following the trial court's overruling of appellant's Crim.R. 29 motion, Woodrow Straubhaar testified that he lived in Brookpark, Ohio. Appellant, his friend, arrived at his house on August 20, 1993 between 8:00 p.m. and 8:30 p.m. Straubhaar testified that appellant was with him the entire evening, and until the next morning. They stayed up until 3:00 a.m., watching movies and playing video games. Appellant left on August 21, 1993 between 6:00 and 6:30 a.m. according to this witness. Straubhaar's cross-examination revealed that appellant was not visibly injured when he arrived at his house, i.e., that he had no scratches or blood present on his body. Straubhaar first heard -10- about appellant's alleged involvement with the events on West 93rd Street on August 20, 21, 1993 through his Aunt Becky Casto. Straubhaar testified that he did not contact the police immediately because he had no idea that appellant was implicated, or that he was charged with any offense. However, upon learning from appellant's brother, Dave, the extent of appellant's alleged involvement, Straubhaar recalled that appellant was with him on the evening in question. He, therefore, surmised that appellant was not the individual who shot the victim. Straubhaar then wrote a letter to appellant, informing him that he knew appellant was with him August 20, 21, 1993. Straubhaar responded, "I just -- I know that day *** I know it was a Friday night *** I know what I did" when questioned as to how his memory was triggered that appellant was with him at the time someone shot the victim. He elaborated, "[b]ecause I stayed up late. Any other time I'm in bed by midnight. If I have to go to work the next morning, I'm in bed by midnight. Otherwise I won't get up." John Davidson testified that he was at his home located at 2027 West 93rd Street on August 20, 1993. He was aware of the problems between the Castos and the victim and his wife. Davidson testified that at approximately 6:00 p.m., he was standing at a pay phone on Madison Avenue near a Revco drugstore. He saw appellant run across the street with the victim and the victim's friends in pursuit. The victim held a baseball bat. Davidson observed appellant run into the drugstore. Davidson also -11- observed that appellant's "elbow and stuff was banged up" when he spoke to him after appellant exited the store. Davidson testified further that he went to bed at about 10:00 p.m. According to him, appellant left the area in his car about an hour earlier. The sound of gunshots awakened Davidson between 1:30 and 2:00 a.m. Davidson testified that he went out on his porch and observed the victim running off Madison Avenue, and toward a field. The victim fell to the ground, and then jumped in a car. Davidson did not see who shot the victim. He testified that he did not see appellant at the time of the shooting. Johnny Ray Casto testified that he was at home on August 20, 1993. Appellant, a friend of his, visited the Castos until 8:30 or 9:00 p.m. Johnny acknowledged that a fight erupted in the street at approximately 6:00 p.m. between the victim, appellant, John and himself. Johnny testified that as he and appellant walked toward the store, the victim went to his car and retrieved a baseball bat. The victim, accompanied by several friends, jumped the appellant. Appellant ran behind the building to the Revco drugstore in order to call the police. The police arrived about 30 to 45 minutes later. Johnny testified that though appellant spoke with the police, he was not within hearing distance. When asked whether he saw anyone with a gun that evening, Johnny responded that he saw Woods with a rifle. This was the only -12- gun seen by Johnny. Johnny moreover stated that appellant was not present during the shooting, having left between 8:30 and 9:00 p.m. Johnny's cross-examination discloses that he went to his apartment to get his father, John, after seeing the victim attack appellant. John and Johnny went outside, but did not carry any weapons. Johnny moreover denied that his father owned either a nunchak or a shotgun. Sterling R. Collier, a character witness for the defense, testified that he taught electronics and coached at West Tech High School. Sterling offered that appellant was one of his students, and described him as, if not the best, at least one of the very best. He testified also that appellant was an "outstanding student" who listened and followed directions, and never caused any problems. Moreover, Sterling testified that others respected appellant. Appellant testified that he went to the Castos' apartment on August 20, 1993 at approximately 5:30 p.m. He prearranged the visit with several of his friends. Appellant and Johnny headed toward appellant's car which was parked in the alley between 6:00 and 6:30 p.m. Appellant testified that the victim yelled some obscenities and then struck him from behind. Appellant blacked out and found himself at the Revco. He spoke with the manager, and then called the police. The police arrived at appellant's apartment building shortly thereafter. Appellant testified that he left the area between 8:30 and 9:00 -13- p.m. He drove directly to Straubhaar's house in Brookpark where he remained until the following morning. Appellant denied that he ever had a gun in his possession on August 20, 21, 1993. In fact, appellant did not see anyone with a gun. He moreover denied that he fired a weapon at the victim. The events of August 20, 21, 1993 led to appellant's November 15, 1993 indictment for one count of felonious assault, R.C. 2903.11. The charge carried firearm and violence specifications. Trial by jury commenced on August 17, 1994. The jury returned a guilty verdict on August 22, 1994. The trial court thereafter sentenced appellant to a term of three to fifteen years, to be served consecutively to three years actual incarceration for the firearm specification. This appeal followed with appellant claiming as error: Assignment of Error No. I: MR. APGER WAS PREJUDICED WHEN THE TRIAL COURT WOULD NOT ALLOW MR. APGER TO TESTIFY TO THE VICTIM'S PRIOR INCONSISTENT STATEMENT AT THE PRELIMINARY HEARING THAT HE HAD NOT SEEN THE PERSON WHO SHOT HIM. Assignment of Error No. II: MR. APGER WAS PREJUDICED BY THE EXCLUSION OF EXTRINSIC EVIDENCE OF THE VICTIM'S PRIOR INCONSISTENT STATEMENT WHICH CONTRADICTED HIS TESTIMONY THAT HE SAW MR. APGER SHOOT HIM. Assignment of Error No. III: MR. APGER WAS DENIED HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. -14- Assignment of Error No. IV: THE CONVICTIONS [SIC] ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE BEYOND A REASONABLE DOUBT THAT MR. APGER COMMITTED FELONIOUS ASSAULT. I. Appellant, in his first assignment of error, submits that the trial court abused its discretion in not permitting a line of questioning in his re-direct examination by defense counsel. The victim testified at trial that he saw who shot him -- appellant. Appellant sought to introduce through his testimony a portion of the victim's preliminary hearing testimony relating to his inability to positively identify the shooter. The state objected, the trial court sustained the objection, and defense counsel withdrew the question and the re-direct examination. Appellant's second assignment of error focuses on the language contained in Evid.R. 613 which allows the introduction of extrinsic evidence of a prior inconsistent statement when justice requires the introduction. As this assignment is interrelated with appellant's first assignment, the two will be jointly reviewed. A review of the transcript reveals that defense counsel withdrew the question directed to appellant which was to elicit the victim's prior inconsistent statement. Defense counsel in fact withdrew appellant's re-direct examination. Appellant, therefore, waives these arguments on appeal since counsel did not merely withdraw the line of questioning in order to pursue another as proposed by him. -15- We thus review these assigned errors under a plain error analysis. State v. Wickline (1990), 50 Ohio St.3d 114. Plain error is only recognized where, but for the error, the result of the trial would clearly have been otherwise. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 191, citing State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus; State v. Moreland (1990), 50 Ohio St.3d 58, 62. The state's position was premised on the defense's failure to question the victim about his preliminary hearing testimony during his cross-examination. Since the victim was not given an opportunity to explain or deny the alleged prior inconsistent statement, appellant could not introduce the statement through his testimony under Evid.R. 613. Appellant counters that the statement was admissible pursuant to either Evid.R. 613 or 801. Evid.R. 613(B) reads, in relevant part, as follows: (B) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. *** Evid.R. 801(D)(1)(a) in turn provides: (D) Statements which are not hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is (a) inconsistent with his testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the -16- penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, ***. Generally, when a party introduces extrinsic evidence of a prior inconsistent statement pursuant to this rule, the party must first establish a foundation through direct or cross-examination. The foundation includes: (1) presenting the witness with the former statement; (2) asking the witness whether he or she made the statement; (3) giving the witness an opportunity to admit, deny or explain the statement; and (4) giving the opposing party an opportunity to interrogate the witness on the inconsistent statement. State v. Theuring (1988), 46 Ohio App.3d 152; see, also, State v. Riggins (1986), 35 Ohio App.3d 1; Staff Note to Evid.R. 613(B). Evid.R. 613(B) thus requires that a witness be given an opportunity to explain or deny a prior inconsistent statement before the introduction of extrinsic evidence of that statement. Riggins. The purpose of this rule is to allow the impeachment of a witness. However, when the statement is made under oath and in an adversary proceeding, the statement is admissible for its truth. Evid.R. 801(D)(1)(a); Riggins. Appellant herein suggests that there is no need to ask the declarant about the statement when it is used as substantive evidence. This is an erroneous reading of Evid.R. 801(D)(1)(a). The rule expressly requires that the declarant testify at trial and be subject to cross-examination regarding the statement in order for the statement to not be hearsay. Since the victim was not -17- provided an opportunity to react to his alleged prior inconsistent statement before appellant was going to offer it in his testimony, the trial court did not abuse its discretion in ending this line of questioning. Evid.R. 613, 801(D)(1)(a); Theuring; Riggins. Appellant cites State v. Trotman (Apr. 21, 1983), Cuyahoga App. Nos. 45566, 45636, unreported, in support of his assertion that the trial court abused its discretion. In Trotman, the victim testified at an earlier parole hearing that he was unable to identify the individual who robbed him. The trial court, however, did not allow either the defendant or the parole officer to testify about the victim's hearing testimony that he did not know if the defendant robbed him. This court concluded that the trial court should have allowed the introduction of the victim's prior inconsistent statement. The statement was usable for both impeachment and substantive evidence purposes. However, the victim in Trotman was asked if he remembered the hearing and if he made the same identification. The victim responded that he made the identification at the parole hearing. Consequently, Trotman is easily distinguished from the present case. The victim herein was never afforded the opportunity to respond to an allegation that he made a prior inconsistent statement. Finally, appellant asserts that notwithstanding the failure to establish a foundation under Theuring and Riggins, justice required the introduction of the prior inconsistent statement under Evid.R. -18- 613(B). Appellant argues that this is particularly so since at the time defense counsel questioned the victim, counsel was unaware of the prior inconsistent statement. The Supreme Court of Ohio addressed a similar issue in Runyan v. Price (1864), 15 Ohio St. 1. The court stated: If the case, where the contradictory statements are discovered after the examination of the witness, and so late as to place his recall beyond the power of the party, does not form an exception, *** The true principle of the rule, seems to be, *** that the witness, whose testimony is to be impeached, and the party to be affected thereby, are entitled, of right, to any explanation which the former can give of the statements imputed to him. And it seems to us, that to allow *** an exception, would be to destroy the principle on which the rule rests, and deny the protection which it was designed to afford. *** (Emphasis added.) Id., 11-12. Appellant's first and second assignments of error are accordingly overruled. II. Appellant, in his third assignment, asserts that he was denied his right to effective assistance of counsel. Specifically, he charges that defense counsel's representation fell below an objective standard of reasonable representation when counsel failed to impeach the victim during cross-examination with his preliminary hearing testimony; to lay a foundation to admit the prior inconsistent statement as extrinsic evidence; to not re-call the victim to the stand to introduce the prior inconsistent statement; and to object to leading questions posed by the state in its direct examination of its witnesses. -19- In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court of Ohio discussed Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 and the holding in State v. Lytle (1976), 48 Ohio St.2d 391. The court thereafter developed a two-step process to assess the effectiveness of counsel. First, there must be a determination as to whether defense counsel substantially violated an essential duty to the client. Second, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. Bradley, paragraph one of the syllabus. Regarding appellant's challenge herein to defense counsel's failure to somehow introduce the victim's prior inconsistent statement into evidence, we first determine whether the victim's testimony at the preliminary hearing was inconsistent with that offered at trial. The trial court determined there were no inconsistencies. A party who seeks to have a prior statement admitted for impeachment purposes must satisfy a threshold inconsistency requirement. The rule in Ohio used to determine an inconsistency is a liberal one. The threshold inconsistency requirement is met if a statement offered for impeachment can be interpreted in either of two ways, though only one interpretation is actually inconsistent with the testimony of the witness sought to be impeached. *** Ohio law recognizes contradiction by reference to a material fact omitted in a witness's prior or subsequent statement. [Citations omitted.] State v. Kline (1983), 11 Ohio App.3d 208, 212. -20- The victim's testimony at trial pertaining to the identity of the individual who shot him, reads as follows: *** Q. Okay. You said Danny was coming at you with a shotgun. Did Danny shoot you? A. (Nodded negatively.) Q. I mean you didn't get shot with the shotgun, did you? A. No, sir. Q. Okay. Did you see who shot you? A. Yes. Q. Who shot you? A. Joe Apger from the porch. *** Q. Where was he standing? A. Right on the porch upstairs. *** Q. I mean were you looking directly at him or -- A. I was looking at Danny with the shotgun and him at the porch. And then bang. *** *** Q. There is absolutely no doubt in your mind that Joe Apger, whom you previously identified, is the person who shot you? A. There is no doubt in my mind whatsoever. *** (Emphasis added.) The victim's preliminary hearing testimony provides: Direct examination A. *** -21- Somebody come up and hit me with a bat, and when I turned around I got shot right here (indicating,) *** Q. Did you see any individuals there who were in possession of any weapons? A. Joe. Q. Joe? A. And this other guy had a shotgun. He was coming down the sidewalk. *** Q. *** When you were having this confrontation with these neighbors, you see him with a .22 caliber rifle? A. He was by the building and there was three more guys coming at me with a shotgun. *** Q. Joseph Apger is carrying a .22 with a scope and another individual was carrying a shotgun? A. They were coming at me while I was talking to John. *** Q. And you got shot? A. Yes. Q. Did you see the individual who shot you? A. No, because I got hit with a bat. When I turned around that's when I got shot. Q. So the only thing you know is that you saw Joseph Apger with a .22 rifle? A. Yes. *** Q. And you're sure it's this individual here who was in possession of the weapon? A. Yeah, *** -22- *** Cross-examination *** Q. The front porch was lit? So all you could see was the silhouette of the person with the gun; is that right? The light was behind him. The front of him was dark. You're on the sidewalk. That's all you could see of that person; is that right? A. I seen him. *** A. He shot at her [Lisa] and her girlfriends that were in the car. Q. *** Whoever was shooting you was shooting at her too, is that it? A. Yeah, *** Q. Are you absolutely certain that this is the guy? A. Yep. *** (Emphasis added.) In order to determine whether an inconsistency exists, this court searched for an omission of a material fact in the victim's preliminary hearing testimony, a fact which is contained in his trial testimony. Appellant posits that the victim omitted the identification of him as the shooter at the preliminary hearing. A partial reading of the victim's preliminary hearing testimony, outlined supra, reveals appellee's testimony in which he identified appellant as the shooter. Appellant's assertion that there was no such identification is thus not supported by the record, and a -23- claim for ineffective assistance of counsel cannot be premised thereon. Appellant next submits that defense counsel was ineffective when he failed to object to the state's leading questions during the direct examination of its witnesses. Appellant argues that the state specifically suggested answers during the questioning. The specific instances of improper questioning are: 1. asking the victim if he saw the appellant at the time of the shooting, if the appellant was on the porch or in the house, and whether appellant had a weapon; 2. asking Lisa whether appellant made any threats when she saw appellant before the shooting and while he was with police officers; 3. asking Daphne whether she heard the shots when she was walking home, and did the shots occur after she, her mother and Woods started toward home. Leading questions are not an appropriate mode of eliciting testimony on direct examination under Evid.R. 611(C). However, the form of questioning may be used in the exercise of the sound discretion of the trial court. Ramage v. Cent. Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97; Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 102. A question is leading if it suggests an answer to the witness through either verbal or nonverbal cues. Lambert v. Shearer (1992), 84 Ohio App.3d 266, 276, citing Corwell v. W. Reserve Bank (1854), 3 Ohio St. 406; 1 McCormick on Evidence (1992) 17-18, Chapter 2. "By the restriction on leading questions the law seeks to encourage honest, narrative answers as opposed to positions put forth by counsel." Lambert, 276. See, McCormick, 16. -24- Admittedly, a few of the questions now challenged by appellant could be construed as leading. However, the issue in this assignment is whether defense counsel was ineffective by not objecting to the form of the questions. The standard of review of a trial court's decisions regarding the use of leading questions during direct examination is that of an abuse of discretion. Seley; State v. Moore (1991), 74 Ohio App.3d 334. Therefore, even if counsel had objected, we are neither convinced that the trial court would have not allowed the form of the questions in its discretion, or that the information would not have been elicited with the restatement of the question. Under the circumstances, this court is not persuaded that defense counsel violated an essential duty to his client, or the defense was prejudiced by the alleged ineffectiveness. Bradley. Appellant's third assignment of error is overruled. III. Appellant challenges the weight of the evidence in his final assignment of error. He claims that the victim's testimony was not credible, was inconsistent and incredible in some instances. Based upon this claim, appellant argues that the jury clearly lost its way and created a manifest miscarriage of justice when it convicted him of felonious assault. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: -25- *** The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** (Citations omitted.) Id., 175. See, Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. Therefore, it must be stressed that the weight of the evidence and the credibility of the witnesses are issues properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The trier of fact is entitled to believe or disbelieve the testimony of either the state's witnesses and/or the defense witnesses. State v. Antill (1964), 176 Ohio St. 61; State v. Harriston (1989), 63 Ohio App.3d 58, 63. In the present case, appellant presented an alibi through his testimony and that of two other defense witnesses, Straubhaar and Johnny. Straubhaar testified that appellant arrived at his house in Brookpark on August 20, 1993 between 8:00 and 8:30 p.m. where he remained until the following morning. Appellant and Johnny testified that appellant left the area of the shooting between 8:30 and 9:00 p.m. The gist of appellant's case, therefore, was that he -26- was not present when the victim was shot and sustained his injuries. Several of the state's witnesses on the other hand clearly identified appellant as being present at the time of the shooting. Danny Woods, Kurt Morgan and Daphne Kaptain were acquaintances of appellant and all placed appellant at the scene of the shooting. Woods testified that appellant had the rifle as he stood near the field and by some bushes. Morgan testified that he saw appellant standing by the bushes after the shots were fired, and appellant held a weapon. Kaptain testified that she saw appellant just before the shooting. She also testified that she saw only two guns that evening; one was held by Woods, the other was on the ground by the field. Elmer Horne, a disinterested witness, likewise testified that he saw appellant with a rifle that evening. While it is true that none of these witnesses actually saw appellant fire the weapon, circumstantial evidence is present in support of this occurrence. Not only is there evidence in the record showing that appellant carried the rifle, but evidence that the rifle was a .22 caliber weapon. Horne testified that he could tell that the weapon carried by appellant was a .22 caliber because he previously owned one. Additionally, Det. Veverka testified that there was no conclusive evidence that the bullet which struck the victim was a .22 caliber. However, he opined, based upon his years of service as a police officer, that the victim's gunshot wound was consistent with that caused by a .22 caliber weapon. The detective further -27- testified that the victim's wound was not caused by a shotgun, the only other firing weapon observed by any witness. Finally, both Woods and Horne testified that they saw two men running through the alley following the shooting. Both witnesses identified appellant as one of the two men. Horne recalled that one of the men stated, "'Let's get the F out of here,'" commenting that the voice sounded like that of appellant. In conclusion, even without taking the victim's "incredible, inconsistent and not credible" testimony into account, the record when taken as a whole, amply demonstrates that reasonable inferences would allow the trier of fact to find appellant was present at the time of the shooting, and that it was he who fired the weapon at the victim. The jury was free to reject appellant's alibi. Grant; DeHass; Antill. We, therefore, fail to find that the jury clearly lost its way when it convicted appellant of felonious assault. Martin. Appellant's 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 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. JAMES D. SWEENEY, P.J., AND PATRICIA A. BLACKMON, J., CONCUR. JUDGE SARA J. HARPER 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 .