COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68664 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DERRICK FLEMMING : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 303244 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Jonathan N. Garver, Esq. Cuyahoga County Prosecutor 1040 Leader Building By: Norman Kotoch, Esq. 526 Superior Avenue N.E. Steven A. Dever, Esq. Cleveland, Ohio 44114 Assistant Prosecuting Attys. The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- HARPER, J.: Defendant-appellant, Derrick Flemming, appeals from his convictions for aggravated murder and aggravated robbery, following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant submits a variety of claimed errors for this court's review involving the weight of the evidence, admissibility of evidence, jury instructions, prosecutorial misconduct and the effectiveness of counsel. A careful review of the record compels affirmance. I. On October 22, 1993, appellant arrived at an apartment building on Eddy Road, East Cleveland, at approximately 5:00 p.m. A party was going to take place later that evening, and appellant arranged to meet one of his friends, Marcellus Gant. Gant telephoned appellant earlier and requested that he bring a .25 caliber handgun with him to the party; Gant, the owner of the handgun, placed it in the glove compartment of appellant's automobile the night before. According to appellant, he started drinking at about 11:00 a.m. that day, specifically, a couple of 22 ounce bottles of malt liquor. He then smoked some marijuana before arriving at the Eddy Road location. Appellant drank two 40 ounce bottles of malt liquor, and anywhere between a half a shot to one or two shots of corn liquor before the party. He drank "quite a few" glasses of liquor and beer while at the party. Appellant presented three -4- witnesses who testified that he was either high or intoxicated that evening. Appellant, Gant and David Jolly left the party at approx- imately 12:00 midnight. Gant persuaded them to go to a party on the west side. Appellant started to drive to the west side in his car and, en route, the men smoked marijuana laced with cocaine. According to appellant, his intoxication hampered his ability to drive, so Gant and Jolly made him pull over to switch seats with Gant. Several hours after leaving the party, at approximately 3:00 a.m., and after consuming more beer, the men found themselves driving south over the Fulton Road bridge. Appellant directed Gant to drive over the bridge and pull into a parking lot at Fulton Road and Vega Avenue. Appellant and Gant exited the vehicle and retreated back to the bridge. At the same time, Virgil Williams and Nathaniel Oliver, officers from the city of Cleveland Police Department, and David Bailey and Earl Brantley, Jr., officers from the Cuyahoga Metropolitan Housing Authority, were involved with a D.U.I. stop south of the bridge. A woman drove up in a Cadillac just as Bailey and Brantley were about to leave the scene. Upset and excited, the woman motioned with her hands as she informed the officers that two men were beating another man with a bat on the bridge. Oliver and Bailey immediately saw two men running from what appeared to be a body laying on the sidewalk of the bridge to their car in the parking lot at Fulton and Vega. One male was observed -5- holding what appeared to be a baseball bat, and the other held an unidentifiable object(s) in his right hand. Appellant was identified at trial as the man holding the unidentifiable object(s) in his hand. Bailey and Brantley pursued the two men in their vehicle. They were able to pull in front of appellant's vehicle, and, with some urging, removed him and Gant from the car. Gant was seated in the driver's seat and appellant in the front passenger seat. Bailey and Brantley only now noticed Jolly in the back seat since he was either hiding or asleep, and then removed him with the assistance of Cleveland police officers who arrived at the location. Officer Oliver broadcast the ensuing events, and returned to the bridge. He approached Oreste Batista, the victim. Oliver described Batista as laying on his back with a gunshot wound over his left eye. He broadcast over his portable radio that a man was shot and needed emergency medical service. Another Cleveland police officer, David Reuse, arrived at the scene within a minute. Both Oliver and Reuse, believing Batista to be close to death, took him to Metro General Hospital in a zone car rather than wait for EMS with an estimated arrival time of five to six minutes. Batista died several hours later without regaining consciousness. A spent casing from a .25 caliber handgun, a hat, a lighter, a card from San Juan Batista Church, two packs of "Bugler" rolling papers and a comb were found near the location of Batista's body. There was testimony that Fulton Road bridge otherwise did not have -6- much debris on it. Batista's wife, Evelyn, identified a majority of the personal belongings at trial as those of her husband. Reuse testified that Batista appeared to be a victim of a robbery. He noted that nothing fell from Batista's pockets as they placed him in the zone car. Oliver testified that as he assisted the victim, he did not remove any of his clothing, or anything from his pockets. He acknowledged lifting Batista's shirt to check for a pulse, but he testified that any items surrounding the victim had to be there prior to his and Reuse's arrival. Bailey described appellant as arrogant at the time of his arrest. When asked if appellant stated anything to him, Bailey testified that appellant "said I was lucky," and if he knew how many rounds he had left in his gun, he would have "popped" me too. Brantley added that appellant acted as if nothing had happened, and as if he did not feel anything as a result of the incident. Several items were recovered in the searches of appellant and his vehicle. Officer Brantley removed a .25 caliber semi- automatic handgun from appellant's front right coat pocket. A baseball bat was found on the running board between the driver's seat and door. A skullcap, a blue bandanna and a pair of ski goggles were uncovered in the front of the right front passenger seat. It was surmised that appellant carried one or more of these items in his hand as he ran from the bridge to his car. An unopened bottle of an alcoholic beverage was also observed on the front seat. -7- Appellant testified that as Gant drove over the Fulton Road bridge, they observed two girls on the sidewalk. Appellant, seeing the police officer's overhead lights activated ahead, advised Gant to pull into a parking lot rather than call attention to themselves by stopping on the bridge to speak with the girls. Appellant and Gant left the car, and approached the girls; the girls ran away. Appellant and Gant encountered an intoxicated Batista on their way back to the car. Appellant testified that Batista intentionally bumped into him, an act that angered him. The two men exchanged words, and then participated in a little tussling. Appellant admitted that he removed the handgun from his pocket, but could not recall how Batista was shot in the head because of his intoxicated state. Appellant conceded that the act of pulling out the gun was not done to protect himself, and denied that either he or Gant possessed a baseball bat when they encountered Batista. Detective Gregory Kunz, an investigator in the Homicide Unit, first spoke with appellant while he was seated in a police cruiser at Fulton and Vega. Kunz testified that he immediately advised appellant of his rights, and asked him whether he understood the individual rights as they were provided to him. Appellant was also asked to supply personal information, including his social security number. Kunz testified that appellant, even though appearing "surly," had no difficulty in responding to any of his questions, nor did he indicate that he did not understand his rights. Kunz testified further that appellant did not appear to be under the influence of either alcohol or drugs at the time of this initial -8- interview. He even noted that appellant's vehicle did not smell of alcohol or marijuana. Officer Oliver and Detective Brian Heffernan, who also spoke with appellant at the scene, confirmed Kunz's observations about appellant's condition. Det. Kunz spoke with appellant again at about 7:00 a.m. on October 23, 1994 in an interview room. A portion of the detective's testimony follows: Q. [W]hat did he say to you at that time? A. Well, I did some talking first, based upon what I had learned in the investigation and the interviews with the other defendants [Gant and Jolly], and based upon the facts that I was talking to him about, he made some statements to me. He admitted that they had been to a party and had been drinking wine but that he didn't remember how the shooting occurred because he was drunk. Even though he said he was drunk, he then went on to describe in some detail some things that had happened, and he stated that they had crossed the bridge and were trying to rob the guy but that the next thing he knew the guy fell. He stated that he didn't remember pulling the trigger; that the victim just stood there, and as soon as he pulled it -- meaning the gun -- up, it went off. He went on to state that they didn't get nothing. They just ran off. He repeated several times that he was just going to rob the guy but he was intoxicated and wasn't going to shoot him. Appellant did not mention the two girls on the bridge at any time during his two interviews with Det. Kunz. Moreover, testimony revealed that the area was not known for prostitutes, and no pedestrians were seen on the bridge by officers who responded to the broadcast. Dr. Carlos Santoscoy, Jr., a deputy coroner with the Cuyahoga County Coroner's Office, performed the autopsy on the 5'4", 131 -9- pound Batista. In addition to the gunshot wound, Dr. Santoscoy observed three scrapes or bruises on the back area of the left shoulder. He testified that the injuries were consistent with either being struck by a blunt object, e.g., a baseball bat, or by falling to the pavement. Dr. Santoscoy clarified later that if the injuries were caused by falling to the pavement, each area of injury had to strike the pavement simultaneously. He testified further that Batista had a blood alcohol content of .17 at the time of testing. Other testing resulted in Dr. Santoscoy's opinion that Batista was shot from a distance of one and one half to three feet. II. The events of October 23, 1993 led to appellant's November 2, 1993 indictment for two counts of aggravated murder, R.C. 2903.01, with felony-murder and firearm specifications, and one count of aggravated robbery, R.C. 2911.01, with a firearm specification. Trial by jury commenced February 7, 1994, and resulted in guilty verdicts as to all counts. The jury recommended on February 22, 1994, that appellant receive the death penalty. After appellant was granted a new trial on April 20, 1994 on the basis of newly discovered evidence, his second trial began on May 1, 1994. The jury found appellant guilty of aggravated murder, including the felony-murder and firearm specifications, and aggravated robbery as charged in the indictment. The mitigation phase of appellant's trial commenced on May 23, 1994. The jury concluded that the aggravating circumstances were not sufficient to overcome the mitigating factors and, therefore, -10- recommended that appellant be sentenced to life imprisonment with parole eligibility after serving thirty years. The trial court sentenced appellant on June 6, 1994 in accordance with the jury's recommendation. The court also sentenced appellant to an additional three years of incarceration on the firearm specification, to be served consecutively with the life imprisonment sentence, and to an indefinite term of ten to twenty-five years on the aggravated robbery charge, to be served consecutively to the other sentences. III. Appellant appeals from the guilt phase of the trial, and assigns the following errors for this court's review: I. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING IMPROPER OPINION EVIDENCE ON THE ISSUE OF WHETHER A ROBBERY HAD TAKEN PLACE. Evid. R. 702; Evid. R. 403(A) II. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING IRRELEVANT TESTIMONY ABOUT GANG ACTIVITIES. Evid. R. 401, Evid. R. 402, and Evid. R. 403(A) III. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING IRRELEVANT TESTIMONY ABOUT A POLICE COMMEMDATION [sic] AWARD GIVEN TO OFFICERS OLIVER AND WILLIAMS. Evid. R. 401, Evid. R. 402, and Evid. R. 403(A) IV. APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT. V. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER. VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE DEFENSE OF ACCIDENT. VII. APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL. -11- VIII.THE JUDGMENT OF CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. Appellant's first three assignments of error relate to the admission of testimony at trial. He argues that Officer Reuse's testimony that Batista appeared to be a victim of a robbery, Officer Brantley's testimony about gang activities, and Officer Oliver's testimony that he and Officer Williams were up for commendation, denied him a fair trial. Appellant recognizes that his argument is reviewable under a plain error analysis. As stated by the Supreme Court of Ohio, It is a general rule that an appellate court will not consider any error which counsel for the party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Campbell (1994), 69 Ohio St.3d 38, 40, citing State v. Childs (1968), 14 Ohio St.2d 56. Such an error is waived and can only be recognized if it rises to the level of plain error under Crim.R. 52(B). The rule of plain error may only be invoked in rare cases and no error constitutes plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. Campbell, 41; see State v. Joseph (1995), 73 Ohio St.3d 450; State v. Moreland (1990), 50 Ohio St.3d 58. Regarding Officer Reuse's opinion that Batista was the victim of a robbery, Evid.R. 701 provides that a lay person may provide opinion testimony when his opinion is rationally based on his perceptions, and where it is helpful to a clear understanding of -12- his testimony or the determination of a fact in issue. State v. Stout (1987), 42 Ohio App.3d 38, 42. This rule means that "the witness must have firsthand knowledge of the subject of his testimony and the opinion must be one that a rational person would form on the basis of the observed facts" and the "testimony must aid the trier of fact in understanding the testimony of the witness or in determining a fact in issue." Lee v. Baldwin (1987), 35 Ohio App.3d 47, 49. Opinion testimony, moreover, is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. Evid.R. 704. Officer Reuse's opinion that Batista was the victim of a robbery was based on his actual observation of Batista's body on the bridge, along with the personal items strewn about and in close proximity. However, when the proffered opinion answers the very question that ultimately must be determined by the factfinder, and the factfinder is capable of reaching a conclusion without the opinion, a trial court does not abuse its discretion in disallowing the testimony. Bostic v. Connor (1988), 37 Ohio St.3d 144, paragraph three of the syllabus; McQueen v. Goldey (1984), 20 Ohio App.3d 41, 47. In light of the evidence presented at trial, the jury was capable of concluding that Batista was a robbery victim without Reuse's opinion. Regardless of whether the opinion constituted impermissible lay opinion reaching an ultimate issue in the case, appellant failed to object to the testimony and he himself admitted to Det. Kunz that he only meant to rob Batista. This court, therefore, cannot find that, absent Reuse's opinion, -13- the outcome of the trial clearly would have been otherwise. Campbell. The second instance cited by appellant as denying him a fair trial is when the state questioned Officer Brantley about gangs and gang initiation activities. The questioning focused on the types of headgear worn by gang members in reference to the items removed from appellant's vehicle. It also addressed how individuals engage in criminal activity in front of the police as an initiation rite. All relevant evidence is admissible under Evid.R. 402. Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence." Finally, Evid.R. 403 provides that although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. We admit that the state's delving into gang activity was minimally relevant to this case. The testimony offered a motive as to why appellant and Gant involved themselves in a criminal act while police officers were visibly in the area. However, defense counsel elicited from Officer Brantley during cross-examination that there was no evidence that the articles recovered from appellant's vehicle were gang-related or that appellant was in a gang or was seeking gang membership. In light of the lack of evidence of appellant's gang membership, and the testimony thereto, this court does not find that the jury could have been confused or -14- misled by the state's questioning, nor that appellant was unfairly prejudiced by it. Evid.R. 403. As a final note, appellant initiated a conversation during cross-examination about Gant's involvement with a gang when questioned as to whether Gant knew his way around the west side. Appellant willingly responded to the state's continued questioning about the matter. If any prejudice resulted to appellant from gang-related testimony, it would be from his voluntary relinquishment of information concerning the specific membership of Gant's, and not the state's periphery and general examination of Officer Brantley. Appellant's last complaint about inadmissible evidence is that the state should not have questioned Officer Oliver about the commendation he and Williams were to receive as a result of their performance on October 23, 1993. The record reveals defense counsel's attempt to discredit Oliver's handling of appellant that evening. Specifically, Oliver was questioned as to why he did not submit appellant to a Breathalyzer or urine test to test for intoxication. The state's eliciting the commendation testimony during Oliver's re-direct examination was in response to this line of questioning, and did not undermine the jury's responsibility to determine if appellant committed the offenses for which he was charged. Campbell; compare, State v. Price (Jan. 31, 1995), Franklin App. No. 94APA07-1012, unreported (testimony regarding police officer's investigation not offered for improper purpose -15- when defense counsel intimated that investigation was inadequate for failure to obtain fingerprints). Appellant's first, second and third assignments of error are accordingly overruled. B. Appellant, in his fourth assignment of error, charges that two instances of prosecutorial misconduct denied him his right to a fair trial as guaranteed under the United States and Ohio Constitutions. Since no objections were made following the two instances, our review of this assignment is under a plain error analysis. Civ.R. 52(B); Campbell. The test for prosecutorial misconduct is whether remarks or actions were improper and, if so, whether they prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 162, certiorari denied (1990), 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596; State v. Smith (1984), 14 Ohio St.3d 13. One consideration is whether the misconduct concerns an isolated incident. State v. Keenan (1993), 66 Ohio St.3d 401, 410. Misconduct of a prosecutor does not warrant a reversal unless the conduct deprived the defendant of a fair trial. Id., 405; State v. Apanovitch (1987), 33 Ohio St.3d 19; see State v. Maurer (1984), 15 Ohio St.3d 239, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728. Misconduct allegedly first occurred during Oliver's re-direct examination when the state opened questioning as follows: Q. Yes, your Honor, thank you. -16- Officer Oliver, let me try and raise you above the smoke screen here for a second and ask you a question. Was this a DUI stop or a homicide? (Emphasis added.) In State v. Braxton (Feb. 16, 1995), Cuyahoga App. No. 66859, unreported, the defendant argued on appeal that he was denied a fair trial, in part, by the prosecutor's opinion that the defense was hiding behind a "smoke screen." We characterized the prosecutor's comment as intimating that defense counsel "'had suborned perjury by manufacturing, conceiving and fashioning lies.'" Id., citing Keenan and Smith. Noting that the comment was isolated, and in light of the entire case, we concluded that the comment was harmless beyond a reasonable doubt. Herein, the state's reference to a smoke screen did not relate to defense counsel's "suborning perjury, etc." As noted supra, Oliver's re-direct examination followed defense counsel's attempt to demonstrate to the jury that appellant's arresting officers somehow mishandled the case against appellant by not checking his level of intoxication. In fact, defense counsel's last seemingly sarcastic comment to Oliver during cross-examination was that Oliver would have testified that appellant would have passed a field sobriety test. The "smoke screen" comment related to defense counsel's undue emphasis on the lack of testing, not on any evidence relating to appellant's defense. Under these circumstances, this court finds that the prosecutor's comment was not improper under the standard set forth by Keenan, Lott and Brady. -17- The second alleged incident of misconduct concerns the following testimony of Officer Oliver: Q. Seemed kind of proud of what he had just done. A. Pretty much, yes. The prosecutor made this statement after Oliver recalled how appellant "showed no remorse at all," and remarked to his friends upon his arrival at the Justice Center that he was going to jail "to work out, get bigger." The prosecutor's reaction to this testimony by inquiring as to whether appellant appeared "proud," may have been a little harsh, but not unreasonable given Oliver's characterization of appellant at the time of his arrest and thereafter. This court does not find that this isolated comment, assuming arguendo that it was improper, denied appellant a fair trial. Lott; Smith. Appellant's fourth assignment of error is overruled. C. Appellant's fifth and sixth assignments of error address the propriety of the trial court's instructions to the jury. Appellant submits that the trial court committed plain error in two respects. First, the trial court should have instructed the jury on the lesser included offense of involuntary manslaughter, with aggravated assault, assault, aggravated menacing, or menacing as the underlying felony. Second, appellant asserts that the court should have provided the defense of accident to the jury. -18- The standard of review for plain error in the presentation of jury instructions was addressed by the Supreme Court of Ohio in State v. Cooperrider (1983), 4 Ohio St.3d 226. The court stated: An erroneous jury instruction "does not constitute plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise." *** Additionally, the plain error rule is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice. [Citations omitted.] Id., 227. See State v. Underwood (1983), 3 Ohio St.3d 12; State v. Long (1978), 53 Ohio St.2d 91. Appellant was charged with, and convicted of, violating R.C. 2903.01(B), the felony-murder provision. In the state of Ohio, murder and involuntary manslaughter are lesser included offenses of aggravated murder under R.C. 2903.01(B). See Campbell; State v. Scott (1980), 61 Ohio St.2d 155; State v. Mack (Dec. 2, 1993), Cuyahoga App. No. 62366, unreported. Notwithstanding this general rule, even if an offense is a lesser included offense of another, an instruction on a lesser included offense is to be given only when warranted by the evidence. See State v. Shane (1992), 63 Ohio St.3d 630 (instruction on voluntary manslaughter should only be given when evidence would allow a jury to reasonably reject the greater offense and find the defendant guilty of the lesser offense). R.C. 2903.01(B) forbids an individual from purposely causing the death of another while committing, or attempting to commit certain felonies. R.C. 2903.04(A) provides that a person is guilty of involuntary manslaughter if he causes the death of another while -19- committing, or attempting to commit, a felony. In addition to the distinction that R.C. 2903.01(B) refers to certain types of felonies, the primary difference between these two offenses is that the latter offense does not require a finding that the accused acted purposely. See Campbell; State v. Jenkins (1984), 15 Ohio St.3d 164. An instruction on involuntary manslaughter should be given only when, on the evidence presented, the jury could reasonably find against the state on the element of purpose, and for the state on the defendant's act of killing another. State v. Thomas (1988), 40 Ohio St.3d 213, 216; State v. Coulter (1992), 75 Ohio App.3d 219, 225. Generally, the law presumes that a person intends "*** the natural, reasonable and probable consequences of his voluntary acts." State v. Johnson (1978), 56 Ohio St.2d 34, 39. Appellant herein admitted that he pulled the gun out when Batista grabbed his arms. The gun was a semi-automatic handgun which required some act of appellant to cause its discharge. Appellant explained that he pulled out the gun to scare Batista off, not to shoot him. Batista was struck in the forehead with a bullet from appellant's gun from a distance of one and one half to three feet. Given the evidence presented by the state, and the jury's rejection of appellant's intoxication defense, a reasonable jury could not have found that appellant did not have the requisite purpose to support an aggravated murder conviction. The trial court, therefore, did not commit plain error in not instructing the jury on involuntary manslaughter. Campbell; Jenkins; Coulter. -20- Compare, State v. Clark (1988), 38 Ohio St.3d 252, certiorari denied (1989), 489 U.S. 1071, 109 S.Ct. 1355, 103 L.Ed.2d 823, rehearing denied (1989), 490 U.S. 1042, 109 S.Ct. 1946, 104 L.Ed.2d 416 (defendant's claim that he only wanted to frighten victim was patently unreasonable as he shot victim in chest); State v. Dean (Sept. 29, 1995), Montgomery App. No. 14721, unreported (defendant acted purposely, despite claim that shots were fired to scare victim, where victim was shot three times from close range, with two bullets striking him in the back); State v. Knuckles (Jan. 23, 1995), Butler App. No. CA93-11-222, unreported (intent to kill present where victim shot in head at close range). Appellant next asserts that the trial court committed plain error by failing to charge the jury on the defense of accident. He maintains that he did not intend to shoot Batista, but the shooting occurred as an accident during their struggle. The defense of accident is not an affirmative defense. Rather, a defendant denies he committed an unlawful act when raising accident as a defense. See State v. Poole (1973), 33 Ohio St.2d 18. "Accident" is defined as "an unfortunate event occurring casually or by chance." State v. Brady (1988), 48 Ohio App.3d 41, 42, citing State v. Lovejoy (M.C. 1976), 48 Ohio Misc. 20. See 4 Ohio Jury Instructions (1993), Section 411.01. By raising the defense, a defendant argues that the state failed to prove the intent element of the crime beyond a reasonable doubt. See Brady. If the evidence supports the defense, a trial court must include -21- the charge in its instructions to the jury. Id., 42; see State v. Rivers (1977), 50 Ohio App.2d 129. In the instant case, appellant admitted to pulling out the gun during his confrontation with Batista. Assuming arguendo that appellant and Batista were struggling over the gun, even though there was no conclusive evidence to this effect, "[i]t is reasonably foreseeable that a gun could fire during a struggle ***." State v. King (Oct. 13, 1994), Cuyahoga App. No. 65511, unreported. Under these circumstances, and noting our previous conclusion that the state provided sufficient evidence of appellant's intent, appellant was not entitled to a jury instruction on accident. Rivers; Brady; King; see State v. Staats (Apr. 13, 1994), Summit App. No. 15706, unreported (the effect of an accident instruction simply reminds the jury that defendant presented evidence to negate the element of purpose). Additionally, given appellant's claim that he could not remember how the gun fired due to his intoxication, we question how he could remember that the gun fired accidentally. Compare, State v. Whitlow (Sept. 15, 1994), Mahoning App. No. 91 C.A. 38, unreported (accident instruction not warranted where record contains no positive references to defendant's accidental shooting due to intoxication). Appellant's fifth and sixth assignments of error are accordingly overruled. -22- D. In his seventh assignment of error, appellant relies on the foregoing assignments of error to substantiate his claim that he was denied the effective assistance of counsel at trial. Based upon our conclusions that appellant's prior assignments of error are without merit, we fail to find that he was denied effective assistance of counsel as a result of the errors complained of therein. See Lockhart v. Fretwell (1993), 506 U.S. , 113 S.Ct. 838, 122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674; State v. Bradley (1989), 42 Ohio St.3d 136. Appellant's seventh assignment of error is overruled. E. Appellant's eighth assignment of error addresses the weight of the state's evidence. Appellant fully admitted throughout the trial that he was responsible for Batista's death, but he otherwise denied that the shooting occurred while he committed or attempted to commit a robbery. He argues that the state's proof of a theft or attempted theft was "woefully inadequate," and requires a vacating of his aggravated robbery conviction, and consequently a reversal of his conviction under R.C. 2903.01(B). Appellant focuses on the condition of Batista's body and the items recovered nearby in arguing this assignment of error. The recovered items include a comb, "Bugler" cigarette rolling papers, a lighter, and an appointment card from San Juan Batista Church. Appellant submits that there are five problems with this proof: -23- (1) conflicting evidence as to the items; (2) doubt as to whether any of the items belonged to Batista; (3) the possibility that some or all of the items fell from Batista during his struggle with appellant, or when police officers checked his pulse or moved him; (4) none of Batista's property was recovered from appellant, Gant or Jolly or from appellant's vehicle; and (5) the only items of value--Batista's wallet and watch--were with the victim at the hospital. 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. The court stated: [T]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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 -24- state's witnesses and/or those of the defense. State v. Antill (1964), 176 Ohio St. 61, 67; State v. Harriston (1989), 63 Ohio App.3d 58, 63. In the present case, contrary to appellant's assertion, Batista's wife, Evelyn, testified that most of the personal belongings found in the vicinity of her husband's body were those of her husband. These articles included his hat, the cigarette papers, the church card and the comb. Defense counsel questioned Mrs. Batista's recollection about the cigarette papers because she testified at a prior proceeding that she could not recall the exact brand used by her husband. This "discrepancy" was brought out at trial, and obviously did not affect the jury's guilt determining process. There was also testimony that the Fulton Road bridge was not filled with debris so as to infer that these belongings were just coincidentally present. The closeness of the articles to Batista's body would allow any reasonable trier of fact to find that they belonged to him. As to appellant's claim that the items fell from Batista during the struggle, it is just as easy to infer that the items fell during the struggle as appellant was attempting to remove them from Batista's possession. As to the claim that the officers could have caused the items to fall to the ground as they assisted Batista, testimony was offered that the items were already on the ground when the officers arrived at the scene, and moreover that nothing was seen falling from the victim as he was moved to a zone car. -25- Finally, the fact that none of Batista's belongings were found on appellant or Gant does not conclusively establish that they did not attempt to commit a theft offense. Det. Kunz testified that appellant admitted during his second interview that he and Gant did not get anything from Batista. When the foregoing evidence is coupled with appellant's statement to Det. Kunz that he only meant to rob Batista, not shoot him, any reasonable trier of fact could find beyond a reasonable doubt that appellant attempted to commit a theft offense, defined in R.C. 2913.02(A), with a deadly weapon in his possession. The jury, therefore, did not lose its way in rendering a guilty verdict to the charged offense of aggravated robbery, R.C. 2911.01(A)(1), and appellant's convictions are thus not against the manifest weight of the evidence. Antill; Martin. Appellant's eighth assignment of error is overruled. Judgment affirmed. -26- 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. JOSEPH J. NAHRA, J., CONCURS; TIMOTHY MCMONAGLE, J., CONCUR IN JUDGMENT ONLY. PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .