COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68761 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KENNETH BROWN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : FEBRUARY 29, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 312982 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. David A. Lambros, Esq. Cuyahoga County Prosecutor 5709 Smith Road By: Richard J. Bombik, Esq. Brook Park, Ohio 44142 Assistant Prosecuting Atty. The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, Kenneth Brown, appeals from his conviction for murder following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant assigns a variety of errors for this court's review relating to the sufficiency and weight of the evidence, the trial court's charge to the jury, and the conduct of the trial court, defense counsel and the prosecutor. A careful review of the record compels affirmance. I. On July 16, 1994, Michael Sheffield, his two young children, and Joseph Miller, residents of New Jersey, drove to Cleveland, Ohio to visit their sister and aunt, Deborah Miller. Ms. Miller was hosting a party that evening at her home located at 19120 McCracken Road, at the corner of Camden Avenue, in Maple Heights, Ohio. Ms. Miller knew appellant from childhood as he was her cousin; Sheffield met appellant in 1993 at a family reunion. Guests started to arrive at the party between 5:00 and 6:00 p.m. Ms. Miller, Cynthia Cannon, Chejuana McCully (Ms. Miller's daughter), William Harris (McCully's fiance and father to their child), and other relatives of Sheffield's, were present in the basement throughout the evening, playing cards and drinking wine and beer. Appellant arrived at Ms. Miller's house sometime around midnight to take Sheffield, Joseph Miller, and Harris, to a few local establishments. Joseph Miller telephoned appellant earlier to inform him about his and Sheffield's arrival. According to -3- Sheffield and Ms. Miller, there was no "bad blood" between any of these men. Appellant drove Sheffield, Joseph Miller, and Harris in his vehicle to one bar where they stayed for a drink. Appellant then took the men to his house on Donover Road, Warrensville Heights, Ohio, to show off his basement. The men stayed at the house for about a half an hour. As they were leaving the house, Harris, who was not visibly intoxicated, vomited at the end of appellant's driveway. Appellant then drove Sheffield, Joseph Miller and Harris to a second bar, but a dress code prohibited their entry. By now, everyone but appellant wanted to return to Ms. Miller's house. According to Sheffield, appellant stated that since he was driving, they had to go with him to a third bar located in Garfield Heights, Ohio. Harris was reluctant to go into this third bar due to the reputation of its patrons. The men entered, but stayed for only about ten to fifteen minutes. Sheffield testified that an argument between appellant and Harris, which started in the bar over a couple of women, "really started" after they returned to appellant's car. When asked about the nature of the argument, Sheffield responded, "Because he -- because Billy [Harris] was saying that he didn't want to know such and such females, that Kenny [appellant] was saying you don't disrespect my friends like that, and it just went back and forth, back and forth for a while." The verbal argument between appellant and Harris continued until appellant pulled into a gas station and put the car in park. -4- Sheffield testified that appellant then opened the car door, exited, reached up under the driver's seat, pulled out a gun, and aimed it at Harris who was seated in the back seat. Sheffield described appellant as "upset," and noted that he stood outside the vehicle for about five minutes, "mouthing" at Harris. Sheffield acknowledged during cross-examination that he did not tell police officers upon his initial interview that appellant pulled out a gun at the gas station. He also admitted to speaking with others about the incident afterwards. Sheffield, testified, however, that he might have forgotten about it initially because of being upset, but remembered it clearly at the time of trial. Appellant admitted to pulling into the gas station and pulling out a gun, a .32 caliber semi-automatic handgun. He denied, however, that he exited the car and pointed it at Harris. Appellant explained that since he was going to collect money for his newspaper delivery route soon after dropping Sheffield, Joseph Miller and Harris off at Ms. Miller's house, he had the gun in his possession for protection. He only pulled the gun out as a deterrent in an attempt "to keep the situation calm." Sheffield successfully persuaded Harris not to get out of the vehicle. The four men then proceeded to Ms. Miller's house, a short distance away, in silence. Sheffield believed at this point that everyone was calmed down. Sheffield testified that as soon as appellant pulled up to Ms. Miller's house, the driver's side of the vehicle facing the side door to the house, Harris exited the vehicle. Harris immediately -5- broke the driver's window of the vehicle with his hand(s). The glass shattered and travelled across the width of the car, outside the front passenger window, and into the back seat. Sheffield testified that as Harris walked toward the side door, appellant exited the vehicle without putting it in park, and started shooting his gun from the street. Sheffield heard at least five shots, one right after the other. Ms. Miller and Cynthia Cannon recalled hearing two to three "firecracker" type noises at approximately 2:30 a.m. while playing cards in the basement. McCully knew that she heard at least three gunshots at the time. Sheffield testified that Harris continued to the house despite the gunshots. Sheffield viewed the events from appellant's vehicle as it continued down Camden Avenue as a result of appellant's failure to put the vehicle in park. Joseph Miller, who was seated in the front passenger seat, exited the vehicle while it was in motion. Sheffield, seated in the rear seat behind Joseph Miller, then exited the vehicle. The vehicle struck the curb at the intersection of McCracken Road and Camden Avenue, hit the wall and then the bridge. Sheffield and Joseph Miller headed toward the house as appellant headed toward his vehicle. Sheffield testified that as he entered the home, he immediately saw Harris at the bottom of the basement steps, laying face down and bleeding out of his mouth. Appellant returned to his home, and telephoned Ms. Miller's residence about twenty minutes after the shooting. According to him, he called to inquire as to why Harris fired a weapon at him. -6- Appellant testified that as Harris exited his vehicle, Harris threatened, "to blow your fucking head off." Appellant thus explained that he only fired his weapon in Harris' direction because he thought that his driver's window was shattered as a result of Harris' firing a weapon at him. Appellant was later arrested at his home by Warrensville Heights police officers, and then taken into custody by officers from the Maple Heights Police Department. Appellant related to both Patrolman Mackiewicz and Sergeant Greg Curtin, appellant's arresting officer, that he threw his gun away as he drove from Ms. Miller's home. Appellant identified the woods on the north side of Marvin Avenue at Camden Avenue as the location where he threw the weapon. However, searches of the area failed to result in the weapon's recovery. Maple Heights Patrolmen Mark Tuzi and Machiewicz responded to 19120 McCracken Road in the early morning hours of July 17, 1994 within minutes of receiving a "shots fired" call. Tuzi observed two areas of broken glass on Camden Avenue--a larger area northeast of the house, about twelve or thirteen feet from the curb, and a smaller area just east of the larger one. He also observed that the side door to the house was approximately fifteen feet from the street, and higher than street level. Tuzi noticed four holes around the area of the side door: two holes were present in the siding to the right of the door; one was located in the awning; and the last hole was present at the top of the siding, to the left of the door. Ms. Miller remembered that the two holes on the right -7- side were already there, but she testified that the hole on the left side was new to her. She did not remember ever looking at the awning. No bullets were recovered from the area as a bullet, if any, may have fallen inside the siding. Detective Rudolph Prhne and Sergeant Michael Megyesi arrived separately at 19120 McCracken Road on July 17, 1994, at around 4:00 a.m. Prhne also observed the areas of broken glass and the holes in the side of Ms. Miller's house. He measured the distance in height of each hole from the ground, and the distance in length from the door to the street curb as eighteen feet, four inches. Megyesi retrieved a shell casing from a .380 automatic pistol from the eastbound lane of Camden Avenue. Ronald Arko, a detective with the Maple Heights Police Department, first saw appellant as he was being booked on July 17, 1994 at approximately 3:15 a.m. Arko administered an atomic absorption test to appellant's hands a little over a half an hour later. The test kit was then delivered to the Ohio Bureau of Criminal Identification and Investigation ("BCI") located in Richfield, Ohio. Arko noticed the odor of alcohol on appellant's breath, but appellant did not appear to be intoxicated. Jeffrey Lynn, a forensic scientist with BCI analyzed the atomic absorption kit. The kit contained four swabs from the backs and palms of appellant's hands. The four swabs revealed levels of antimony and barium, components of gunshot residue, consistent with someone holding and firing a gun with two hands, or firing with one and then handling with the other. -8- Robert Challener, a Deputy Coroner with the Cuyahoga County Coroner's office, performed the autopsy upon Harris. An external examination of his body revealed one gunshot wound to the right upper middle of the back with an area of bruising on the left chest. The bullet travelled from the back to the front of Harris' body, upward and to the left, terminating at the chest wall. Challener could not conclusively determine the position of Harris' body when he was struck by the bullet. However, he testified that the "relative position of the barrel of the gun relative to the body is behind the body and somewhat below and somewhat to the right at the point at which the bullet entered the body." There was no evidence of fouling or stippling. In other words, there was no evidence that appellant was shot from close range; rather, Challener testified that he was shot from a distance of at least two feet. Harris' blood alcohol concentration measured .09. Challener testified that a person with that level of alcohol concentration might not appear to be under the influence to a casual observer, but may suffer from impaired reflexes and coordination. Finally, there were no obvious signs of injury to Harris' hands. Kay May, a member of the trace evidence department in the coroner's office, examined Harris' hands for presence of gunshot residue and also conducted a trace metal detection test. She testified that there was no indication of gunshot residue, and no reaction to the trace metal detection test. May conceded that some individuals are "non-reactors," meaning that even if trace metals -9- were present, a "non-reactor" would not react positively. May also examined Harris' clothing for nitrites in the area of the defect caused by the bullet. The presence of nitrites would indicate a close-range, i.e., less than twenty-four inches, shot, but Harris' clothing did not contain nitrites. The events of July 17, 1994 led to appellant's August 15, 1994 indictment for aggravated murder in violation of R.C. 2903.01, with a firearm specification. Trial by jury commenced on February 2, 1995, with the jury returning a guilty verdict on the lesser included offense of murder, R.C. 2903.02. The trial court sentenced appellant to a term of three years for the firearm specification, to be served prior to and consecutive with an indefinite term of fifteen years to life for the murder conviction. This appeal followed with appellant assigning ten assignments of 1 error for this court's review, seven of which are pro se. II. The trial court denied appellant's Crim.R. 29 motions which were premised on the state's alleged failure to present sufficient evidence in support of the prior calculation and design element of the offense of aggravated murder. The trial court instructed the jury on aggravated murder, murder, voluntary manslaughter, and self-defense. The aggravated murder instruction forms the basis of appellant's first and third assignments of error. 1 See Appendix. -10- A. Appellant, in his first assignment, charges that the trial court erred in not granting the Crim.R. 29 motion at the close of all evidence. Appellant argued at trial that since "[t]he shooting was not planned but came as part of an instantaneous eruption of events predicated by Mr. Harris' destruction of the car window," the state failed to demonstrate beyond a reasonable doubt all the elements necessary for a charge of aggravated murder. The state countered that appellant's "plan" commenced when he and Harris argued at the third bar, and continued from the relatively brief stop at the gas station to the arrival at Ms. Miller's house. Regardless of the state's version of events, the state now suggests to this court that appellant's first assignment is moot because he was not convicted of aggravated murder. This court recognizes that a jury may be hesitant to convict an individual of aggravated murder when given the option of convicting for murder. We thus acknowledge appellant's suggestion that an aggravated murder charge may be prejudicial when there is absolutely no evidence of prior calculation and design. In other words, if a jury is instructed on the offense of murder, but not aggravated murder, it may be hesitant to convict a defendant of murder when given the option of convicting for, e.g., voluntary manslaughter. Therefore, the state's response that an aggravated murder charge is not prejudicial simply because the defendant is convicted of murder is too simple an answer. -11- However, the state presented sufficient evidence in support of appellant's conviction for murder. Accordingly, his first assignment of error is overruled. Compare, State v. Reed (1981), 65 Ohio St.2d 117; State v. Richardson (1995), 103 Ohio App.3d 21; State v. Mulkey (1994), 98 Ohio App.3d 773; and State v. Jenkins (1976), 48 Ohio App.2d 99 (defendants' convictions for aggravated murder modified to murder as state failed to prove element of prior calculation and design). B. Appellant's second assignment of error addresses the weight of the state's evidence. Appellant submits that the following evidence, or lack thereof, supports his theory of self-defense and requires a reversal of his conviction: the lack of any injury(ies) to Harris' hand(s) even though the state postured that he broke the car window with his hand(s); the state's position that five shots were fired by appellant whereas its witnesses testified to two and three shots; the state's failure to prove that the holes in Ms. Miller's home were caused by bullets from appellant's gun; the state's failure to recover any bullets to match against the shell casing recovered at the scene; the pattern of bullet holes corroborates appellant's "came up shooting" defense; the period of calmness between the stop at the gas station and the arrival at Ms. Miller's house; the level of alcohol in Harris' body; the state's failure to provide evidence that a man could break a car window with his hand(s); Harris' statement to appellant that he was going to shoot his head off, stated as he exited the vehicle; and -12- appellant's belief that Harris fired a weapon at him. Appellant argues that this evidence or lack of evidence, when coupled with his behavior after the incident, supports his theory of self- defense. 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 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. -13- R.C. 2903.02 provides that "no person shall purposely cause the death of another." R.C. 2901.22(A) defines "purposely" as follows: A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. An intent to commit an offense is not something easily proven by direct evidence. Rather, intent is ordinarily proven by reference to surrounding facts and circumstances. See, State v. Huffman (1936), 131 Ohio St. 27; State v. Flowers (1984), 16 Ohio App.3d 313; State v. Clark (Feb. 16, 1995), Cuyahoga App. No. 65805, unreported; State v. Balcarcel (Mar. 17, 1994), Cuyahoga App. No. 65941, unreported. A jury, consequently, may find an intention to kill from the surrounding circumstances where the natural and probable consequence of a defendant's actions is to produce death. See, State v. Robinson (1954), 161 Ohio St. 213; State v. Caldwell (1992), 79 Ohio App.3d 667; State v. Edwards (1985), 26 Ohio App.3d 199; Clark, Slip. Op. 65805. In the within case, there is no dispute that appellant caused the death of Harris by a gunshot wound to the back. Notwith- standing appellant's argument that he acted in self-defense, which will be discussed infra, the state presented evidence, both direct and circumstantial, that appellant "purposely" caused the death. Appellant does not deny that he exited his vehicle and started shooting in Harris' direction after Harris exited the vehicle and -14- broke the glass. The act of pointing a firearm and firing it in the direction of another human being is an act with death as a natural and probable consequence. 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; and State v. Jester (1987), 32 Ohio St.3d 147, certiorari denied (1988), 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 871, rehearing denied (1988), 485 U.S. 972, 108 S.Ct. 1251, 99 L.Ed.2d 448 (when an inherently dangerous instrumentality, such as a firearm, is used in the commission of a robbery, such evidence permits a jury to find a purposeful intent to kill). A review of the record, considering the inferences to be drawn and the jury's prerogative to determine the credibility of witnesses, reveals that the jury did not lose its way in returning a guilty verdict on the lesser included offense of murder. Appellant's conviction for murder in violation of R.C. 2903.02 is thus not against the manifest weight of the evidence. Martin; Robinson. Appellant maintained at trial that he acted in self-defense in the shooting death of Harris. Appellant, in order to establish self-defense, had to show by a preponderance of the evidence: (1) that he was not at fault in giving rise to the affray; (2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from danger was the use of such force; and (3) that he did not violate any duty to -15- retreat or avoid the danger. See, State v. Robbins (1979), 58 Ohio St.2d 74; State v. Moore (1994), 97 Ohio App.3d 137. Since the elements of self-defense are cumulative, if appellant failed to prove any one of the elements by a preponderance of the evidence, he failed to demonstrate that he acted in self-defense. See, State v. Williford (1990), 49 Ohio St.3d 247, 249; State v. Jackson (1986), 22 Ohio St.3d 281, 284, certiorari denied (1987), 480 U.S. 917, 107 S.Ct. 1370, 94 L.Ed.2d 686. Appellant testified that he believed Harris fired a weapon at him thereby causing the driver's window to shatter in his vehicle. It was this belief and Harris' statement that he was going to blow appellant's head off, which led him to fire his weapon in Harris' direction as an act of self-defense. According to appellant, he never pointed his gun at Harris while parked at the gas station. Appellant claimed moreover that everyone in the vehicle, including Harris, was calm after the incident at the gas station. The state, however, presented testimony through Sheffield that appellant pointed the gun at Harris. The state's theory was that Harris and appellant's argument carried over to the time when they arrived at Ms. Miller's house, and resulted in Harris' display of anger--the breaking of the car window. If Sheffield's testimony and the state's theory was accepted by the jury as true, appellant could not prove by the preponderance of the evidence that he was not at fault in giving rise to the affray. -16- Additionally, there was no evidence offered at trial in support of appellant's belief that Harris either possessed a weapon or fired one at the window. Not only did Sheffield testify to the contrary, i.e., that Harris broke the window with his hand, but there was, e.g., no testimony that Harris possessed a weapon that evening, or even that he possessed one on any other occasion. Given that Harris was wearing a t-shirt and a pair of shorts at the time of his death, the evidence does not support an inference that Harris was armed that evening. Finally, both Sheffield's testimony and the location of Harris' body when he entered the home, place appellant's justification for shooting Harris into doubt as well. Harris was shot in the back from a distance of at least two feet. According to Sheffield, Harris was walking away from appellant's vehicle and heading toward the house when appellant started to fire his weapon. Whether appellant had a bona fide belief that he was in imminent danger of death is thus subject to doubt. In conclusion, the record contains ample evidence in support of appellant's conviction for murder. The jury chose to reject his claim of self-defense, a decision which is also supported by the evidence. Williford; Robbins; see, Martin v. Ohio (1987), 480 U.S. 228, 234, 107 S.Ct. 1098, 1102, 94 L.Ed.2d 267. Appellant's second assignment of error is overruled. C. Appellant, in his third assignment of error, returns to the trial court's instruction to the jury on aggravated murder. He argues that overcharging the jury through the aggravated murder -17- instruction disallowed the jury's consideration of negligent homicide and involuntary manslaughter, the offenses which most fit the facts of the present case. A trial court's instructions to the jury should address the actual issues in the case as warranted by the evidence and the pleadings. State v. Guster (1981), 66 Ohio St.2d 266, 271. The giving of jury instructions is within the sound discretion of the trial court and will not be disturbed on appeal unless the record affirmatively demonstrates an abuse of discretion. Id.; State v. Martens (1993), 90 Ohio App.3d 338, 343. An abuse of discretion connotes more than an error of law or judgment; it implies an attitude on the part of the court that is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. Appellant herein did not object to the trial court's instructions to the jury as they pertain to this assignment of error, nor did he request instructions on negligent homicide and involuntary manslaughter. Any errors that may have occurred with respect to the jury instructions are thus waived absent the existence of plain error. Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In construing this rule, the Supreme Court of Ohio stated that "[n]otice of plain error *** is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St.2d 91, 97. Plain error -18- is not found unless it can be said that but for the error, the outcome of the trial clearly would have otherwise. State v. Joseph (1995), 73 Ohio St.3d 450, 455; State v. Moreland (1990), 50 Ohio St.3d 58, 62. A criminal defendant is entitled to instructions on lesser included offenses if, first, the offense on which the instruction is requested is lesser than and included within the charged offense under the analysis set forth in State v. Deem (1988), 40 Ohio St.3d 294. The Deem court held that an offense is a lesser included offense of another offense if "(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense." Id., paragraph three of the syllabus. Second, an instruction to the jury on a lesser included offense is required only when the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser offense. R.C. 2945.74; Crim.R. 31(C); State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus, clarifying State v. Kidder (1987), 32 Ohio St.3d 279. With regard to appellant's claim that the court should have instructed the jury on involuntary manslaughter, there is no dispute that involuntary manslaughter is a lesser included offense of murder. Thomas, paragraph one of the syllabus; Kidder, 282. -19- The mental state of the accused distinguishes one offense from the other. Appellant submits that the court should have instructed the jury on involuntary manslaughter with aggravated assault as the underlying offense of felonious assault. The offense of murder requires proof that the accused acted purposely, or with specific intent to cause the death of another. R.C. 2903.02; 2901.22(A). The culpable mental state of involuntary manslaughter is supplied by the underlying offense, here, "knowingly." See, State v. Campbell (1991), 74 Ohio App.3d 352, 358-359. 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 accused's act of killing another. Thomas, 216; State v. Coulter (1992), 75 Ohio App.3d 219, 225-226. The record before this court fails to substantiate appellant's suggestion that the trial court committed plain error by not instructing the jury on involuntary manslaughter. Appellant admitted to firing his weapon in Harris' direction. An instruction on involuntary manslaughter was thus not warranted under the facts of this case. Compare, State v. Haile (Sept. 27, 1995), Hamilton App. No. C-940690, unreported; and State v. Jones (Sept. 27, 1995), Hamilton App. No. C-940691, unreported (instructions on involuntary manslaughter not warranted when defendants admitted to producing and firing a gun while standing back from fight). -20- Pertaining to the offense of negligent homicide, a number of courts have determined that it is not a lesser included offense of murder. See, State v. Koss (1990), 49 Ohio St.3d 213; State v. Hill (1987), 31 Ohio App.3d 65; State v. Jenkins (1983), 13 Ohio App.3d 122; State v. Grace (1976), 50 Ohio App.2d 259. Therefore, the trial court did not commit plain error by not instructing the jury on negligent homicide. In conclusion, in light of our determination that appellant's conviction for murder is supported by the weight of the evidence, and he was not entitled to jury instructions on involuntary manslaughter and/or negligent homicide, appellant's third assign- ment of error is overruled. D. Appellant, in his first pro se assignment of error, asserts that he was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Appellant submits that the following activity or inactivity of defense counsel was deficient: (1) failure to advise appellant of an in chambers proceeding that was held to determine whether a juror should remain on the jury; (2) failure to inform appellant that he could be present at pretrial hearings, and thus be able to participate in evidentiary decisions; (3) failure to interview three potential witnesses who allegedly could have corroborated appellant's testimony in part; (4) failure to investigate whether the bullet retrieved from Harris matched the shell casing recovered at the shooting site; and (5) failure to -21- object to improper statements of the prosecutor and/or other 2 improperly admitted evidence. A defendant must establish two factors in order to establish a claim that trial counsel's performance was ineffective. First, the defendant must show that counsel's performance was deficient to the point that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, he must demonstrate that the deficient performance prejudiced the defense as a result of counsel's errors which were so serious as to render the result of a trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell (1993), 506 U.S. , , 113 S.Ct. 838, 844, 122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. However, "[u]nreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Lockhart, 506 U.S. at , 113 S.Ct. at 844. Judicial scrutiny of counsel's performance must be highly differential; a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable 2 The state suggests that appellant's first four ineffective assistance of counsel claims are not reviewable by this court because they are not contained in the record. The first claim appears in the transcript; the remaining three claims are reviewable either through court papers or through the power of this court to engage in some amount of speculation when confronted with ineffective assistance of counsel claims. See, State v. Wong (1994), 97 Ohio App.3d 244. -22- professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Bradley, 142. Trial counsel is strongly presumed to have rendered adequate assistance, and this court will not second guess what could be considered to be a matter of trial strategy. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301; State v. Oliver (1995), 101 Ohio App.3d 587, 594. Matters which fall within counsel's discretion are ones within the ambit of trial strategy. Coulter, 230; State v. Saah (1990), 67 Ohio App.3d 86, 96. In the present case, appellant's first instance of alleged ineffective assistance of counsel occurred when defense counsel and prosecutors met in the trial court's chambers with a juror. The juror's brother recently became a corrections officer at the Justice Center, but when questioned during voir dire about whether he knew anyone working in the legal system, the juror responded in the negative. It was the juror who informed the trial court about his brother, and, according to him, he simply forgot that his brother was a corrections officer. The juror, when questioned by the judge, responded that this connection would not impede his ability to objectively determine the issues in the case. The right of an accused in Ohio to be present during all stages of trial is guaranteed by the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. See, State v. Williams (1983), 6 Ohio St.3d 281, 286; see, also, Illinois v. Allen (1970), 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, rehearing denied (1970), 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80. An accused's right to be present at all -23- stages of trial is embodied in Crim.R. 43(A), a rule that contains mandatory language. The Supreme Court of Ohio in Williams considered whether an accused's constitutional and statutory rights were violated when the trial court conducted an in camera voir dire of jurors in the defendant's absence. The voir dire occurred after the jurors were approached during a jury view by the manager of the premises where a shooting took place, and directed by the manager to a bullet hole. The court found that the voir dire "was a transparent violation of both [the defendant's] constitutional and statutory rights." Williams, 286. Notwithstanding this transparent violation, the court concluded that the defendant's due process rights were not "appreciably impaired by his absence at the voir dire proceedings." Id. This conclusion was based on several observations, the first being that defense counsel was present during the voir dire, and thus adequately represented the defendant's interests. The court cited Henderson v. Lane (C.A.7, 1980), 613 F.2d 175, and United States v. Brown (C.A.6, 1978), 571 F.2d 980 in support of the conclusion. In Brown, the court found that defense counsel's participation in an in chamber conference held to discuss the dismissal of a juror, negated any prejudicial impact that may have resulted from the defendant's absence. Id., 987. The Williams court also noted that the defendant could have contributed little to his defense during the voir dire because he did not personally observe the improper communication between the premises' manager and the jurors, nor did it involve his own -24- conduct. Williams, 287. Therefore, the trial court's failure to secure the defendant's attendance at the voir dire was nonprejudicial under constitutional standards and a harmless violation of Crim.R. 43(A). Id. Herein, appellant does not deny that defense counsel was present during the trial court's questioning of the juror. Defense counsel's presence thus negated any prejudicial impact which may have resulted from appellant's absence. Id., 286-287; Brown, 987. Appellant moreover could not have contributed much to the voir dire since it involved matters which did not directly involve him. Williams, 287. Finally, the trial court and defense counsel were satisfied with the juror's statement that his connection to the legal system through his brother would not affect his objectivity in rendering a verdict. Since the trial court's failure to secure appellant's attendance at this proceeding did not violate his constitutional and statutory rights, appellant's defense counsel cannot be found ineffective under these circumstances. Lockhart; Strickland; Bradley; compare, State v. Miller (Aug. 21, 1989), Preble App. No. CA 89-01-001, unreported (Williams harmless error analysis inapplicable when defendant absent from entire jury selection process and record does not reveal waiver or consultation with defense counsel). Appellant also urges this court to find that defense counsel was ineffective by not securing his presence at pretrials, or at least advising him that he could be present at the proceedings. The record contains four journal entries relating to the trial -25- court's pretrials. None of the entries specify who was or was not present for these stages of the proceedings. Since the record does not affirmatively support appellant's contention that he was absent, this court must presume regularity. See, State v. Lewis (Apr. 28, 1994), Franklin App. No. 93AP-911, unreported. Defense counsel was thus not deficient in this regard. Lockhart; Strickland; Bradley. Whether defense counsel was ineffective by not interviewing witnesses and investigating the physical evidence recovered from Harris and the scene is the next issue presented by appellant. These decisions fall within defense counsel's discretion, and this court will not second guess defense counsel's strategy. Vaughn; Oliver. Additionally, we note that defense counsel questioned Sgt. Megyesi about the bullet recovered from Harris and the shell casing. Megyesi testified that he knew of no test which could confirm that the casing housed the bullet, and the bullet was not forwarded to BCI to determine similarities in caliber. Defense counsel attempted to impress upon the jury through this line of questioning that the bullet and shell casing may not have originated from the same weapon. Under the circumstances, the jury was free to infer that Harris may have possessed a weapon on July 17, 1994 without specific scientific evidence. Appellant's final instance of alleged ineffective assistance of counsel deals with counsel's failure to object to certain arguments and testimony. Appellant complains that counsel should have objected to the following: -26- 1) State's opening statement: [T]hat immediately after he broke the window Mr. Brown, with the car engine running and without even putting the car in park, got out of the car and began to chase Mr. Brown with a gun in his hand. *** and Mr. Brown got out of the car, gave a brief, brief chase and shot his gun at least three times. One of those three, if not more, shots struck Mr. Harris in the back. 2) State's closing statement: [G]ee, did the guy [Sheffield] seem credible, did he have some reason to lie or misrepresent things. *** These selected portions of the state's opening and closing statements are subject to review in appellant's second and third pro se assignments of error. Our review of appellant's argument that these statements amount to prosecutorial misconduct are rejected infra. Under these circumstances, defense counsel's failure to object to them fails to amount to ineffective assistance of counsel. Lockhart; Strickland; Bradley. Appellant also cites additional pages of the transcript to demonstrate ineffective assistance of counsel by failure to lodge objections. However, appellant does not specify which statements should have been objected to by counsel. We are thus not able to review these remaining claims. See, App.R. 16(A)(6), (7); Loc.App.R. 6(5). Appellant also cites to a page of the transcript containing defense counsel's closing statement. Since this portion of his assignment deals with failure to object, we can only surmise that the page number is incorrect. Appellant's first pro se assignment of error is overruled. E. -27- Appellant proposes in his second and third pro se assignments of error that he was denied due process and a fair trial by the prosecutor's misconduct. Specifically, appellant submits the following statements as inflaming the jury's passions and prejudices: (1) "[I]f you decide in this case based on evidence you heard, that the defendant acted in self-defense, then God have mercy on us all."; (2) the statements set forth supra regarding the "chase" and the number of bullets which struck Harris; (3) "[T]his is not a case of self defense by no stretch of the imagination. That it was a cold-blooded killing, one fueled by perhaps anger, fueled by perhaps ill will, but certainly no fuel whatsoever that would justify any person to say that what I did on this particular night was justified because I shot in self defense. No way, no how."; (4) "[I]f Mr. Miller could I would trust that this guy [defendant] would carry him back from New Jersey," stated with regard to Miller's non-appearance at trial; and (5) "Gee, does this guy seem credible? Does he have any reason to lie?" (as quoted by appellant) and "Mr. Sheffield told you exactly what happened." Defense counsel objected only to the first and fourth statements. In determining whether prosecutorial misconduct requires the reversal of a conviction, a reviewing court must find not only that the prosecutor's comments were improper, but that they also substantially affected substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, 165, certiorari denied (1990), 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596; State v. Smith (1984), -28- 14 Ohio St.3d 13, 14-15. 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. Therefore, even when improper statements are made by a prosecutor, reversible error is not present where substantial evidence exists in support of the defendant's guilt. See, State v. Loza (1994), 71 Ohio St.3d 61; State v. Shelton (June 27, 1991), Cuyahoga App. No. 58737, unreported. As a consequence of our adversarial process, prosecutors are encouraged to argue fervently in favor of conviction. Wide latitude is provided in summation with regard to the evidence and what reasonable inferences flow from the evidence. State v. Stephens (1970), 24 Ohio St.2d 76, 82. A prosecutor is thus entitled to comment upon testimony and suggest conclusions which may be drawn from it. Id., 83. A closing argument which goes beyond the record may amount to prejudicial error, especially when the comments invite the jury to convict in order to meet a public demand, or as an emotional reaction. See, Loza; State v. Keenan (1993), 66 Ohio St.3d 402; see, also, Berger v. United States (1935), 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Lott; Smith. However, the closing argument must be viewed in its entirety before concluding the remarks were prejudicial. State v. Mortiz (1980), 63 Ohio St.2d 150, 157. Herein, defense counsel objected to the prosecutor's comment "then God have mercy on us all." The trial court sustained the objection, and addressed the jury as to the deletion of the comment. Since it is presumed that the jury follows a trial -29- court's instructions, State v. Henderson (1988), 39 Ohio St.3d 24, 33, we find no basis for a new trial as a result of the comment. See, State v. Wilson (1972), 30 Ohio St.2d 199; State v. Hart (1994), 94 Ohio App.3d. 665. As to the prosecutor's comment that appellant "chased" Harris and might have hit him with more than one bullet, it is unprofessional to present to a jury under the guise of argument, information that is or will not be introduced into evidence. Considering Challener, the deputy coroner, testified that Harris was struck by one bullet, this court fails to find any prejudice flowing from the prosecutor's comment that he might have been hit by two bullets. We likewise find that the reference to a chase was not an unreasonable inference in light of appellant's admission that he stepped out of his vehicle and "came up shooting." Appellant next challenges the prosecutor's statement that characterized Harris' death as a "cold-blooded killing." Given there was no evidence that Harris possessed a gun that evening, and evidence that appellant fired his gun at him while he walked away, striking him in the back, the prosecutor's characterization may have been a "hard blow," but not one which was improper nor prejudicial. Maurer; Stephens. Pertaining to Joseph Miller, the state intended to call him as a witness, but he did not appear for trial. The prosecutor commented that appellant would have called Mr. Miller as a witness if it could help his cause. Appellant argues that this statement prejudicially shifted the burden to prove his innocence on him. -30- The Supreme Court of Ohio rejected this same argument in State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 193, explaining that a party may comment upon the failure to call a witness who has knowledge of the matter under investigation, and a prosecutor may comment on the defense's failure to offer evidence in support of its case, here, self-defense. See, State v. Petro (1948), 148 Ohio St. 473; State v. Champion (1924), 109 Ohio St. 281. Appellant's final instance of alleged prosecutorial misconduct centers on the prosecutor's remarks that Sheffield had no reason to lie to the jury. While it is improper for an attorney to go beyond the evidence in closing argument by expressing personal opinion as to the credibility of a witness, we do not find that the comment "Sheffield told you exactly what happened" impermissibly reflected on his credibility, nor was it a prejudicial comment requiring a reversal of appellant's conviction. Lott; Smith. As to the remaining statement, "Does he have any reason to lie," appellant misquotes it. The whole statement of the prosecutor was: "You all heard Mr. Sheffield, you all together in the jury room can get together collectively and decide for yourself, gee, did the guy seem credible, did he have some reason to lie or misrepresent things. *** The prosecutor expressed no opinion as to Sheffield's credibility, but merely advised the jury that it was their function to determine his credibility, a proper statement of the law. Appellant's second and third assignments of error are overruled. -31- F. Appellant, in his fourth pro se assignment of error, contends that he was denied due process as a result of the in chamber proceeding with the juror. We found that defense counsel was not ineffective in failing to secure appellant's presence during the proceeding in appellant's first pro se assignment of error. This court overrules this assignment of error for the same reasons. G. Appellant's fifth pro se assignment of error relates to the trial court's charge to the jury as to the offense of murder, specifically to the culpable mental state of "purposely." He argues that the instruction, and the prosecutor's earlier comments regarding "purpose," misrepresented the facts of the case, and shifted the burden of proof in violation of the Due Process Clause of the Fourteenth Amendment. Our review of this assignment of error is guided by a plain error analysis as appellant failed to object to either the prosecutor's comment or to the portion of the trial court's charge to the jury now challenged by him. Plain error is only present when the outcome of the trial would have been otherwise except for the error. Joseph; Moreland. The "purposely" element of the offense of murder was discussed in some length in appellant's second assignment of error. We noted: An intent to commit an offense is not something easily proven by direct evidence. Rather, intent is ordinarily proven by reference to surrounding facts and -32- circumstances. [Citations omitted.] A jury, consequently, may find an intention to kill from the surrounding circumstances where the natural and probable consequence of a defendant's actions is to produce death. [Citations omitted.] In light of this rule of law, neither the prosecutor's statement, "if I take a gun, point it in your direction, shoot that gun and I wind up killing you[,] I did that purposely," [562-63] nor the trial court's instruction that the jury may find intent from surrounding circumstances, were improper. The trial court's charge to the jury, as a whole, properly informed it of the applicable law to be applied to the evidence, including the equating of intent with purpose. See, 4 Ohio Jury Instructions (1994), Sections 409.01, 503.02. Appellant's fifth pro se assignment of error is accordingly overruled. H. In his sixth pro se assignment of error, appellant asserts that alleged errors, even if individually harmless, had a "cumulative effect" that denied him a fair trial. Such "cumulative error" analysis has been applied by the Supreme Court of Ohio. See, e.g., State v. Webb (1994), 70 Ohio St.3d 325; State v. DeMarco (1987), 31 Ohio St.3d 191. However, this court's review of the record, as controlled by appellant's arguments, fails to reveal any errors which require a reversal of his conviction. Appellant's sixth pro se assignment of error is accordingly overruled. I. -33- Appellant's seventh and final pro se assignment of error contains a catch-all proposition that this court review the entire record for "plain error." Pursuant to App.R. 12(A)(2), this court may disregard an assignment of error if appellant fails to identify the error in the record which is the subject of the assignment. Appellant's seventh assignment of error is, therefore, overruled. Judgment affirmed. APPENDIX -34- ASSIGNMENTS OF ERROR 1. THE TRIAL COURT ERRED IN NOT ACQUITTING THE DEFENDANT AT THE SECOND RULE 29 HEARING SINCE THE ELEMENT OF PRIOR CALCULATION AND DESIGN HAD NOT BEEN SUFFICIENTLY PROVEN. 2. THE VERDICT OF GUILTY OF THE CHARGE OF MURDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 3. THE TRIAL COURT DID ERR IN GIVING THE JURY INSTRUCTION FOR THE CHARGE OR AGGRAVATED MURDER. PRO SE ASSIGNMENTS OF ERROR I. CUMULATIVE IMPACT OF DEFICIENCIES IN DEFENSE COUNSEL'S PERFORMANCE PREJUDICES DEFENSE AT TRIAL AND THEREFORE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE VI AND XIV AMENDMENTS OF THE UNITED STATES CONSTITUTION II. APPELLANT WAS DEPRIVED A "FAIR" TRIAL AND V AND XIV AMENDMENT DUE PROCESS BY REASON OF PROSECUTORIAL MISCONDUCT III. APPELLANT WAS DENIED FIFTH AND FOURTEENTH AMENDMENT DUE PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO GRANT A MISTRIAL DUE TO PROSECUTORIAL MISCONDUCT IV. THE TRIAL COURT VIOLATED APPELLANT"S [sic] RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT, AND THE CONFRONTATION CLAUSE OF SIXTH AMENDMENT, AND CRIMNINAL [sic] PROCEDURE RULE 43 BY HAVING A [sic] IN- CHAMBERS PROCEEDING WITH JUROR OUTSIDE OF DEFENDANT"S [sic] PRESENCE. V. APPELLANT WAS DENIED FIFTH AND XIVTH AMENDMENT DUE PROCESS BY JURY INSTRUCTIONS THAT UNCONSTITUTIONALLY RELIEVED THE STATE OF ITS BURDED [sic] OF PROOF VI. CUMULATIVE EFFECT OF ERRORS COMMITTED DENIED APPELLANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT VII. OTHER ERRORS APPEAR IN THE RECORD THAT ARE NOT SPECIFICALLY RAISED AND SET FORTH ON THIS APPEAL BUT CONSTITUTE "PLAIN ERROR" AFFECTING SUBSTAINTIAL [sic] -35- RIGHTS PURSUANT TO THE OHIO RULES OF CRIMINAL PROCEDURE, RULE 52(B). SEE: ANDERS v. CALIFORNIA, 386 US 738. -36- 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., CONCUR IN JUDGMENT ONLY. JOHN T. PATTON, J., CONCUR IN JUDGMENT ONLY. 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 .