COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69149 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JERRY V. BROWN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 27, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-317508 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DOMINIC DELBALSO, ESQ. PAUL MANCINO, JR., ESQ. Assistant County Prosecutor 75 Public Square 8th Floor Justice Center Suite 1016 1200 Ontario Street Cleveland, Ohio 44113-2098 Cleveland, Ohio 44113 and JOHN F. MANLEY, ESQ. Assistant Law Director -2- -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Jerry V. Brown, appeals his conviction for involuntary manslaughter and felonious assault. Brown assigns 1 nine assignments of error for our review. Having reviewed the record of proceedings, and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On November 18, 1994, at 2:00 a.m., Jerry Brown was observed shooting a nine millimeter handgun in the front area of a bar known as Club 91. Club 91 was closing and patrons were leaving. When the shooting ended, Major Sharp, a patron, was dead; Eddie Parker, a patron, was shot in the left thigh, and two security guards, Jerome Sanders and Anthony Bolar, were wounded. Sanders was shot in the right buttock and Bolar's left knee was grazed. The events leading to the shooting were retold by both prosecution and defense witnesses. Jerry Brown, a customer at Club 91, was observed by security guard Tyrone Asberry dancing on the Club's tables. Asberry told him to stop. Brown did, but later he approached Asberry and remarked "eventually you have to come outside." Anthony Bolar overhead this statement, which he and Asberry found menacing. Ultimately Brown did exit the Club. It was at this time that Asberry approached the Club's disc jockey, Tamone Calloway, reputed 1 See Appendix for a complete list of assigned errors. -4- to be Brown's friend. Asberry told Calloway about Brown's earlier remark. Calloway then exited the Club and located Brown in the Club's parking lot. While they were talking, an unidentified male arrived and stood next to Brown. This male had a gun in his waistband. Calloway responded to this male that weapons would not be needed. It was at this time that the three security guards, Asberry; Bolar, and Sanders, approached Brown, Calloway, and the unidentified male. They all conversed and shook hands, as a show of the resolution of their differences. The guards proceeded toward the entrance. Meanwhile, Tamone Calloway's brother, Lamont Calloway, arrived and inquired about the situation. Brown, for whatever reason, pulled the nine millimeter and aimed it at Lamont's head. Tamone Calloway was able to get Brown to release the gun from his brother's head. It was at this point that Brown opened fire on the three security guards and the patrons who were exiting the Club. After the shooting Brown fled. He later surrendered to the police. He was subsequently indicted for one count of aggravated murder, and five counts of attempted murder. After a trial, Brown was convicted of one count of involuntary manslaughter with a gun specification and one count of felonious assault. Brown was originally sentenced to 8 to 25 years for involuntary manslaughter, 3 years for the gun specification, and 8 to 15 years for felonious assault. The trial court subsequently modified the sentence by sentencing Brown to 8 to 15 years for involuntary manslaughter, 3 -5- years for the gun specification to run consecutively, and 6 to 15 years for felonious assault to run consecutively. At trial, Brown testified he did not fire his gun until after Bolar fired at him, and when he did fire, he only fired three shots toward the ground. Other witnesses testified they saw Brown firing at least six shots from a nine millimeter handgun, before they ducked for cover. Most of the witnesses present heard numerous shots fired after they took cover. Twenty-one shell casings from three different guns were recovered by the police. No guns, however, were recovered. The bullet that killed Major Sharp was identified as a nine millimeter bullet. During the trial, Brown asked for a self defense instruction. The trial court gave the following first instruction: In determining whether the Defendant had reasonable grounds for an honest belief that he was in imminent danger you must put yourselves in the position of this Defendant with his characteristics, his knowledge or lack of knowledge and under the circumstances and conditions that surrounded him at that time. You must consider the conduct of Major Sharp and determine if his acts and words caused the Defendant to reasonably and honestly believe that he, the Defendant, was about to be killed or to receive great bodily harm. (Tr. 1856) Thereafter, a second instruction was given: And as to Counts 2, 4 and 5 of attempted murder, if he acted in self-defense, if you find he acted in self-defense under the various burdens that I've talked to you about, again you would not go to the lesser-included offenses. So, do you understand that, ladies and gentlemen? -6- ALL JURORS: Yes. THE COURT: All Right. P. 1899 The Court then said the following: THE COURT: Mr. Defense Attorney Zukerman, are you satisfied with the correction or addition amplification I made on the self-defense point? MR. ZUKERMAN: Yes, Your Honor. THE COURT: All right. (Tr. 1904) In his first assignment of error, Brown argues he was denied due process when the trial court limited the self-defense instruction to defense against Major Sharp. Brown characterizes the judge's instruction in this manner: by limiting the self- defense to only Major Sharp, Bolar's behavior was discounted; consequently, the jury's attention was on Sharp's aggression and not Bolar; since Sharp was not an aggressor but an innocent patron, it is no wonder the jury convicted him. If Brown's characterization of the judge's instruction to the jury is correct, we would have to agree and conclude plain, reversible error. However, we disagree with Brown's conclusions. The judge did in his first instruction limit the self-defense to Sharp; however, later the judge cured this error by telling the jury that the self-defense applied to each count in the case. Consequently, we conclude the jury was in a position to determine and note from the facts that Brown, if believed, was responding to -7- Bolar's aggression and not any aggression from the innocent patron, Major Sharp. Thus, in the count involving Bolar, the jury was told to apply self-defense. This court recognizes a self-defense instruction is warranted where a person claims to have been defending himself but inadver- tently harms a third party in the process. See State v. Williams (1981), 2 Ohio App.3d 289. It is no doubt that this case would have on record looked better if the first instruction had not been given in that fashion. However, we are satisfied that the overall instructions relieved any prejudice caused therein. We need only look to defense counsel's acquiescence in this fact. Therefore, Brown's first assignment of error is not well taken. In his second and third assignments of error, Brown argues he was denied due process of law because the trial court improperly instructed the jury on transferred intent. The record reveals Brown failed to voice these objections at trial. Under Crim.R. 30(A), the failure to object to jury instructions waives any error relating to the instructions except in the event of plain error. See State v. Gideons (1977), 52 Ohio App.2d 70. A defective jury instruction does not rise to the level of plain error unless it can be shown the outcome of trial clearly would have been otherwise if the instruction was properly given. Cleveland v. Buckley (1990), 67 Ohio App.3d 799. See, also, State v. Long (1978), 53 Ohio St.2d 91. The plain error rule is to be applied with the utmost caution and invoked only to prevent a manifest miscarriage of justice. See Long at 97. -8- The present case involves the issue of transferred intent. The concept of transferred intent, necessary to the establishment of intent in cases involving aggravated murder and murder, does not apply to involuntary manslaughter. State v. Newlin (Aug. 5, 1993), Franklin App. No. 87 AP-222, unreported. The applicable statute for involuntary manslaughter in this case is R.C. 2903.04(A). It provides "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit a felony." In order to prove intent for purposes of involuntary manslaughter, the state need only prove the defendant committed the underlying offense. State v. Campbell (1991), 74 Ohio App.3d 352, 358-359. Thus, while an instruction on transferred intent was arguably applicable to the offense of voluntary manslaughter, it had no bearing on the jury's finding of guilt to the offense of involuntary manslaughter. Accordingly, the trial court's instructions pertaining to transferred intent did not demonstrate plain error. Consequently, Brown's second and third assignments of error are not well taken. In his fourth assignment of error, Brown argues he was denied due process because the trial court failed to identify the culpable mental state for involuntary manslaughter in its instruction. The trial court instructed the jury on involuntary manslaughter as follows: Before you can find the Defendant guilty of involuntary manslaughter, you must find beyond a reasonable doubt that on or about the 17th -9- day of November, 1994, and in Cuyahoga County, Ohio, the Defendant caused the death of another as a proximate result of committing or attempting to commit a felony, to wit: attempted murder, felonious assault or aggravated assault. For purposes of involuntary manslaughter, the culpable mental state is supplied by the underlying offense. Campbell at 358-359. Accordingly, the trial court's instruction including the possible underlying offenses as an element of the crime was sufficient to inform the jury of the culpable mental state as an element of the offense of involuntary manslaughter. Brown's fourth assignment of error is not well taken. In his fifth assignment error, Brown argues he was denied due process when the trial court reduced the degree of the offense to manslaughter rather than dismissing the entire charge of aggravated murder. "It is not necessary for the prosecution or the court to formally present a defendant with written charges of each lesser offense which may be proven by elements necessary for proof of the greater offense." State v. Stuber (1990), 71 Ohio App.3d 86, 89. See, also, R.C. 2945.74 (provides a jury may find defendant guilty of lesser included offense). Accordingly, Crim.R. 29 does not prohibit a trial court from reducing a charge to a lesser included offense rather than dismissing the case where there is sufficient evidence to support the lesser included offense. In this case, Brown was indicted for aggravated murder. Voluntary manslaughter and involuntary manslaughter are both lesser included offenses of aggravated murder. See State v. Deem (1988), -10- 40 Ohio St.3d 205. Therefore, the trial court properly permitted the jury to consider the lesser included offenses of voluntary and involuntary manslaughter. Brown's fifth assignment of error is not well taken. In his sixth assignment of error, Brown argues he was denied due process because the jury's findings of not guilty to voluntary manslaughter and guilty to involuntary manslaughter were inconsis- tent. Voluntary and involuntary manslaughter are distinguished by the degree of culpable mental state and as such, involuntary manslaughter is considered an included offense of voluntary manslaughter. State v. Tanner (Dec. 31, 1991), App. Nos. 91 AP- 263, 91 AP-651, unreported. Accordingly, there is no inconsistency in a finding of not guilty to voluntary manslaughter and a finding of guilty to involuntary manslaughter. Brown's sixth assignment of error is not well taken. In his seventh and eighth assignments of error, Brown argues there was insufficient evidence to prove he shot Major Sharp and the trial court should have granted his motion for judgment of acquittal under Crim.R. 29. A motion for judgment of acquittal will not be granted unless, after viewing the evidence in the light most favorable to the prosecution, the court determines that reasonable minds could reach different conclusions about whether each material element of the crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978), 55 Ohio St.2d 261. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 319. -11- Brown relies upon and maintains his theory of innocence. His theory was premised upon his testimony that he only fired three rounds, he fired them into the ground, and there were other people at the scene firing weapons. Shell casings were found at the scene from three guns, two nine millimeter guns and one .32 caliber weapon. Therefore, Brown reasons the State failed to specifically prove one of his three rounds killed Sharp. He based this reasoning on testimony, the shell casings, and the lack of direct scientific evidence linking the rounds he fired to the one that killed Sharp. "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circum- stantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction." State v. Jenks (1991), 61 Ohio St.3d 259 at paragraph one of the syllabus. In view of the Supreme Court's holding in Jenks, the circumstantial evidence in the record need not be reconciled with Brown's theory of innocence, but need only be proved beyond a reasonable doubt. The circumstantial evidence in this case provides proof beyond a reasonable doubt and is compelling. One witness for the State saw Brown fire at least six rounds of a nine millimeter handgun, and after taking cover, heard him fire more rounds. None of the State's witnesses saw anyone else firing a gun toward the club's -12- entrance. The testimony also revealed Brown fired those rounds, not toward the ground, but in the direction of Club 91's entrance. Major Sharp was leaving the club when Brown fired his gun, was shot, and died as a result of a bullet wound from a nine milli- meter bullet. Accordingly, there was sufficient evidence, albeit circumstantial, Brown shot and killed Sharp. Consequently, Brown's seventh and eighth assignments of error are not well taken. In his ninth assignment of error, Brown argues the trial court erred in not merging the offenses of involuntary manslaughter and felonious assault. We disagree. Involuntary manslaughter and felonious assault are not allied offenses of similar import within the meaning of R.C. 2941.25(A) because "each requires proof of an additional element not present within the other offense: proximate causation for involuntary manslaughter and purposefulness for felonious assault." State v. Williams at paragraph one of the syllabus. Accordingly, this assignment of error is not well taken. Judgment affirmed. -13- It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., and HARPER, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -14- APPENDIX ASSIGNMENTS OF ERROR 1. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT INSTRUCT THE JURY CONCERNING SELF DEFENSE IN A MANNER WHICH WOULD ALLOW THE JURY TO FULLY CONSIDER SELF DEFENSE WHICH INVOLVED CONDUCT BY THE DEFENDANT BASED UPON ACTIONS ALL ALLEGED VICTIMS, INCLUDING DECEDENT. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT, BY ITS INSTRUCTIONS, ALLOWED THE DEFENDANT TO BE CONVICTED OF AN ACCIDENTAL SHOOTING WHICH IS NOT A CRIME. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PROCEEDED TO CONSTRUCTIVELY AMEND THE INDICTMENT AND THAT STATUTE BY INSTRUCTING UPON THE DOCTRINE OF TRANSFERRED INTENT. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DEFINED INVOLUNTARY MANSLAUGHTER WITHOUT IDENTIFYING OR REQUIRING THE PROSECUTION TO PROVE CULPABLE MENTAL STATE. V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT, IN RESPONSE TO A MOTION FOR JUDGMENT OF ACQUITTAL, REDUCED THE DEGREE OF THE OFFENSE RATHER THAN DISMISSING THE ENTIRE CHARGE. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND NOT GUILTY OF VOLUNTARY MANSLAUGHTER BUT GUILTY OF INVOLUNTARY MANSLAUGHTER. VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF INVOLUNTARY MANSLAUGHTER. VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL WHERE INSUFFICIENT EVIDENCE TO PERMIT A RATIONAL FACTFINDER TO RETURN A VERDICT OF GUILTY WAS OFFERED. IX. THE DEFENDANT WAS UNCONSTITUTIONALLY SUBJECTED TO .