COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70445 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : TERRENCE RATLIFF : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-331000. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Anthony J. Kellon Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jean M. Gallagher, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third Street, N.W. Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Terrence Ratliff, defendant-appellant, appeals his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, for aggravated murder. Defendant-appellant assigns six errors for review. This court, finding no error, affirms defendant- appellant's conviction. I. STATEMENT OF FACTS Terrence Ratliff, defendant-appellant, was indicted on one count of aggravated murder in violation of R.C. 2903.01 and one count of drug trafficking in violation of R.C. 2925.03 (with two furthermore specifications). The drug trafficking charge was subsequently dismissed. Defendant-appellant pled not guilty to the remaining charge of aggravated murder. During the jury trial, the state presented the testimony of several individuals who were at the scene of the crime and a doctor who testified as to the cause of death. The following facts were adduced. On October 13, 1995, the victim, Neil Stokes, was driving with his two children on East 140th in Cleveland, Ohio. The victim's vehicle was hit by something thrown by a group of young males. The victim drove away but eventually came back looking for the individuals who were throwing things at his car. When he couldn't find them, he kept driving down East 140th. At an intersection, another group of young males began yelling at the victim to purchase some drugs and if he didn't, he should get out of their neighborhood. The group then began calling the -3- victim names and someone threw a bottle that hit his vehicle. The victim immediately made a U-turn on to the sidewalk. The victim got out of his vehicle with a baseball bat to confront the individual who threw the bottle. One of the males in the group, Michael Peacock, ran to his vehicle and took out a car jack. The group of males continued to throw sticks, bottles, bricks and stones from the street. Someone from the group of males shouted that if he didn't leave, they would kill him. As words were being exchanged, the group approached and began circling the victim. Michael Peacock testified that the victim eventually began backing up towards his vehicle in an effort to leave. The victim was swinging the bat to keep the males away from him and his daughter who had gotten outside of the vehicle and was standing behind him. At around the same time, Terrence Ratliff, defendant-appellant was driving by and observed what was taking place. Defendant- appellant parked his vehicle, grabbed a baseball bat from the back seat, and approached the victim from behind. The daughter observed defendant-appellant coming from behind and screamed for her father. Defendant-appellant then struck the victim in the back right side of his head with the baseball bat. The victim immediately stood straight up and fell to the ground completely incapacitated. The mob then began hitting, kicking and jumping on the victim. The daughter testified that Michael Peacock began hitting her father with the car jack he had taken from the car. -4- Before the daughter ran to a pay phone to call for help, she witnessed defendant-appellant smashing the victim's vehicle. When the daughter returned from calling for help, the mob had run away. One of the officers who responded to the scene testified that when they arrived, the victim was bleeding profusely from the head. Although he was semi-conscious, the victim was unable to respond to questions. The officer testified that they obtained statements from the victim's children and other individuals who witnessed the beating. Based upon descriptions of the males involved, the officers arrested Jermaine Hall and Eric Howard. After the arrest, it was learned that the victim, Neil Stokes, died in the hospital as a result of the injuries he sustained. Steven Ross, Michael Peacock and defendant-appellant were subsequently arrested as a result of the police investigation. The state also presented Dr. Robert Challener who testified that the death of the victim was caused by a blunt impact to the right side of his skull. There were several fractures in this area of the skull. Because the victim then fell hard on the right side of his head, the brain shifted in the opposite direction when impact occurred. The left side of the victim's brain was bruised with a massive accumulation of blood on the left side of his brain. This type of injury is known as a contrecoup. After attacking the credibility of the state's witnesses, defense counsel argued there is a reasonable doubt as to what -5- actually caused the death of the victim. Defense counsel argued it was reasonable to believe that Steve Ross caused the victim's death since there was testimony that he kicked the victim in the head and hit him in the head with a car jack when he was on the ground. Moreover, defense counsel argued that the evidence demonstrated it was the victim, Neil Stokes, who was intoxicated, out of control and looking for trouble. Defense counsel noted that defendant-appellant had nothing to do with the events leading up to assault. When defendant-appellant arrived, he witnessed a large, out of control man chasing someone around a car swinging a bat. Defendant-appellant's actions were therefore reasonable and in defense of others. More importantly, defense counsel argues there was no evidence presented which demonstrated defendant-appellant intended to kill the victim and/or acted with prior calculation and design. The evidence demonstrates, and defendant-appellant testified, that although he hit the victim, he did not intend to kill him. Again, he was only trying to defend others. Defense counsel argued if defendant-appellant had really intended to kill the victim, he would have continued to beat him after he fell to the ground. After closing arguments, the trial court instructed the jury on aggravated murder and on the lesser included offense of murder. Defense counsel then requested an instruction of defense of another and of involuntary manslaughter. The trial court -6- instructed the jury on defense of another but refused to instruct on involuntary manslaughter holding it was inconsistent with the evidence and the other charges. Terrence Ratliff, defendant- appellant, was found guilty of aggravated murder. He was sentenced to life in prison. This appeal follows. II. FIRST AND SECOND ASSIGNMENT OF ERROR Since Terrence Ratliff's, defendant-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them concurrently. I. MR. RATLIFF'S RIGHTS UNDER ART. I, SECT. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE THAT HE PURPOSELY CAUSED THE DEATH OF MR. STOKES. II. MR. RATLIFF'S RIGHTS UNDER ART. I, SECT. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE THAT HE PURPOSELY CAUSED THE DEATH OF MR. STOKES WHILE ACTING WITH PRIOR CALCULATION AND DESIGN. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL. Defendant-appellant argues the trial court erred in denying his motion for acquittal. Due to the "freakish" manner, means and circumstances regarding the death of the victim, defendant- appellant argues no jury could have reasonably found he "purposely" caused the death of the victim. As such, the -7- evidence was legally insufficient for a charge of aggravated murder and the trial court should have granted his motion for acquittal. Additionally, defendant-appellant argues that although there is legal culpability, it is culpability for involuntary manslaughter pursuant to a felony as opposed to aggravated murder. In his second assignment of error, defendant-appellant argues even if there is sufficient evidence that he purposely caused the death of the victim, there was insufficient evidence that he did so with prior calculation and design for the following reasons: 1) there was only a few short moments of deliberation, 2) since defendant-appellant did not know the victim, there were no prior strained relations, 3) there was no evidence of prior preparation since the incident was a random encounter. For these reasons, defendant-appellant argues the trial court erred in denying his motion for acquittal. Defendant-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL. Under Crim.R. 29, the trial court "shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29 should be granted only -8- where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Accordingly, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based upon the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL REGARDING THE ELEMENT OF "PURPOSEFUL." In the case sub judice, defendant-appellant was indicted and eventually convicted of aggravated murder in violation of R.C. 2903.01 which states: (A) No person shall purposely, and with prior calculation and design, cause the death of another. -9- In the first assigned error, defendant-appellant argues he did not purposely cause the death of the victim. R.C. 2901.22 states in pertinent part: (A) 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. Intent can be established by circumstantial evidence. State v. Adkins (June 9, 1988), Cuyahoga App. No. 54075, unreported, at 6. See, also, State v. Nicely (1988), 39 Ohio St.3d 147; State v. Jenks (1991), 61 Ohio St.3d 259. Intent may thus be ascertained from the surrounding facts and circumstances in the case. State v. Johnson (1978), 56 Ohio St.2d 35; State v. Lott (1990), 51 Ohio St.3d 160, 168; Anthony Rivera (1994), Cuyahoga App. No. 65078, unreported. In State v. Fugate (1973), 36 Ohio App.2d 131, 132, the court quotes with approval the determination of other courts in saying: The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person and it need not be. [***.] It is the law of Ohio that an intent to kill may be presumed where the natural and probable consequences of a wrongful act is to produce death, and such intent may be deduced from all the surrounding circumstances, including the instrument used to produce death, and the manner of inflicting a fatal wound. (Citations omitted.) -10- See, also, State v. Thompson (1977), 55 Ohio App.2d 17; State v. Johnson (1978), 56 Ohio St.2d 35. Sufficient credible evidence was presented which established defendant-appellant approached the victim from behind in an effort to conceal his presence. Defendant-appellant then hit the victim in the back right side of the head with the baseball bat. The autopsy reports and Dr. Challener testified that there were fractures on the back right side of the skull. The blow to the head was of such force as to completely incapacitate the victim rendering him unable to break his fall and/or protect himself in any manner. Under these facts, it is reasonable for a jury to conclude that defendant-appellant intended to cause the death of the victim. Accordingly, the trial court did not err it denied defendant-appellant's motion for acquittal. Defendant-appellant's first assignment of error is not well taken. D. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL WITH REGARDS TO "PRIOR CALCULATION AND DESIGN." Recently, in State v. Taylor (1997), 78 Ohio St.3d 15, the Ohio Supreme Court had the opportunity to summarize the evidentiary requirements necessary to support a finding of "prior calculation and design." In State v. Cotton (1978), 56 Ohio St.2d 8, 10 O.O.3d 4, 381 N.E.2d 190, at paragraph one of the syllabus, we agreed that "`prior calculation and design' is a more stringent element than the `deliberate and premeditated -11- malice' which was required under prior law." The General Assembly's apparent intention "was to require more than a few moments of deliberation permitted in common law interpretations of the former murder statute, and to require a scheme designed to implement the calculated decision to kill." Id., 56 Ohio St.2d at 11, 10 O.O.3d at 6, 381 N.E.2d at 193. Also, in Cotton, at paragraph two of the syllabus, we held that "[i]nstantaneous deliberation is not sufficient to constitute `prior calculation and design.'" However, under the particular facts of Cotton, we found prior calculation and design when, after a botched forgery attempt, the accused wrestled a gun from a police officer, fired shots at pursuing police, and then returned to the scene to kill an officer he had wounded as the officer was attempting to crawl away. In State v. Jenkins [(1976)], 48 Ohio App.2d at 102, 2 O.O.3d at 75, 355 N.E.2d at 828, the court of appeals found three factors important in determining whether prior calculation and design exists: (1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or "an almost instantaneous eruption of events"? The court in Jenkins found no prior calculation in the following "almost spontaneous" eruption of events: A motorist told the accused, standing in the road, to get out of his way, and the accused went to his own car, retrieved a shotgun, and killed the motorist. This court has upheld findings of prior calculation and design in some short-lived emotional situations other than the Technical Committee's "classic" concept of the "planned, cold-blooded killing." (citations omitted). At other times, Ohio courts (including this court) have declined to uphold findings of "prior calculation and design" in explosive, short-duration situations. (citations omitted). -12- Our review of the preceding cited cases convinces us that it is not possible to formulate a bright-line test that emphatically distinguishes between the presence or absence of "prior calculation and design." Instead, each case turns on the particular facts and evidence presented at trial. Finally, we note that prior calculation and design indicates studied care in planning or analyzing the means of the crime, as well as a scheme encompassing the death of the victim. Neither the degree of care nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves, but they must amount to more than momentary deliberation. See State v. D'Ambrosio (1993), 67 Ohio St.3d 185; State v. Pierce (1980), 64 Ohio St.2d 281. In this case, there was evidence establishing that defendant- appellant drove past the group of males throwing things at the victim. Defendant-appellant observed the victim with a bat in his hands. Defendant-appellant decided to park his car approximately one to two houses from the intersection where the events were unfolding. Defendant-appellant got out of his car, took out a wooden baseball bat, and headed towards the scene. He approached the victim from behind in an attempt to conceal his presence and hit the victim in the back right side of the head which is arguably the most vulnerable portion of the victim's body. The victim sustained several fractures on the back right side of the skull. Defendant-appellant used such force as to immediately render the victim incapacitated. This blow to the -13- head eventually caused the victim to collapse and hit his head against the curb. Dr. Challener testified that death was caused by a blunt impact which fractured the right side of his skull. When viewed in light most favorable to the prosecution, we find there was sufficient credible evidence revealing sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation. Again, defendant-appellant was not even involved in the initial confrontation between the victim and the group of males. Rather he observed the events as they unfolded from his vehicle and then made a conscious decision to park his car, grab his baseball bat and get directly involved. These facts do not establish that defendant-appellant's actions resulted from an "instantaneous eruption of events" as to require an acquittal on the charge of aggravated murder. Moreover, the fact that defendant-appellant approached the victim from behind in an attempt to conceal his presence demonstrates a scheme designed to implement his calculated decision to kill. Accordingly, there exists sufficient evidence admitted at trial which, if believed, would convince the average mind that defendant-appellant acted with prior calculation and design beyond a reasonable doubt. See, Cotton, supra at paragraph three of the syllabus; State v. Robbins (1979), 58 Ohio St.2d 74, paragraph one of the syllabus. For this reason, the trial court did not err in denying defendant-appellant's motion for acquittal. -14- Defendant-appellant's second assignment of error is not well taken. III. THIRD ASSIGNMENT OF ERROR Terrence Ratliff, defendant-appellant, states as his third assignment of error: III. THE TRIAL COURT'S DENIAL OF THE DEFENSE REQUEST FOR AN INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER VIOLATED MR. RATLIFF'S RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON INVOLUNTARY MANSLAUGHTER. Defendant-appellant argues the trial court committed prejudicial error when it refused to instruct the jury on the lesser included offense of involuntary manslaughter. Specifically, defendant-appellant argues the evidence, when viewed in light most favorable to defendant, does not support only a charge of aggravated murder. The fact the trial court instructed the jury on the lesser offense of murder evinces this fact. Moreover, defendant-appellant argues the fact that an instruction on defense of another was requested and ultimately given by the trial court does not foreclose instruction on the lesser included offense of involuntary manslaughter. Since, under a reasonable view of the evidence considered in light most favorable to defendant, the trier of fact could have found -15- defendant-appellant not guilty of aggravated murder but guilty of involuntary manslaughter, defendant-appellant argues the instruction of the lesser included offense must have been given. Defendant-appellant's third assignment of error is not well taken. -16- B. STANDARD OF REVIEW: LESSER INCLUDED OFFENSE. The Ohio Supreme Court has set forth the criteria for determining when an offense is a lesser included offense of another crime. In State v. Wilkins (1980), 64 Ohio St.2d 382, 384, the court stated: An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. It is well established that involuntary manslaughter, R.C. 2903.04, is, as statutorily defined, a lesser included offense of aggravated murder, R.C. 2903.01(A). State v. Thomas (1988), 40 Ohio St.3d 213. However, the mere fact that an offense can be a lesser included offense of another does not mean that a court must instruct on both offenses where the greater offense is charged. Even though a lesser included offense has been established, the Ohio Supreme Court has stated that a charge on the lesser offense is warranted only if the evidence adduced at trial would support it. Thomas, supra at 216; State v. Davis (1983), 6 Ohio St.3d 91. In this regard, the court stated in State v. Kidder (1987), 32 Ohio St.3d 279, 282-283: Even though so defined, a charge on the lesser included offense is not required, unless the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and -17- against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense. See, also, State v. Nolton (1969), 19 Ohio St.2d 133; State v. Jenkins (1984), 15 Ohio St.3d 164; State v. Eubank (1987), 38 Ohio St.3d 141. "The meaning of this language is that even though an offense may be statutorily defined as a lesser included offense of another, a charge on the lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." Thomas, supra at 216. C. THE TRIAL COURT DID NOT ERR IN REFUSING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER. Although involuntary manslaughter is a lesser included offense of aggravated murder, R.C. 2903.01(A), we find the trial court did not err in refusing to instruct the jury on such lesser offense. Initially we note defense counsel did not request the instruction in writing pursuant to Crim.R. 30(A). Regardless, after a review of the entire record, we find it would have been unreasonable for the jury to have found defendant- appellant did not act with purpose and with prior calculation and design in causing the death of the victim, Neil Stokes. Again, there was overwhelming evidence presented at trial establishing that defendant-appellant drove past the group of males throwing things at the victim. He then made a conscious decision to park his vehicle, get out of his car and take with -18- him a baseball bat. Defendant-appellant then approached the victim from behind in an attempt to conceal his presence and hit the victim in the back right side of the head which is again, arguably the most vulnerable portion of the victim's body. Defendant-appellant used such force as to immediately render the victim incapacitated and eventually cause the death of the victim. It is not reasonable to conclude under these facts and circumstances that defendant-appellant did not purposely intend to cause the victim's death. Rather, it is reasonable to conclude he intended the death of the victim as a natural and probable consequence of hitting him in the back of the head with a baseball bat with a great amount of force. It is not reasonable to conclude that defendant-appellant did not act with prior calculation and design. Rather, it is reasonable to conclude that: 1) defendant-appellant analyzed the situation, 2) defendant-appellant made a conscious decision to get involved and 3) defendant-appellant carried out his calculated decision to kill in a manner that concealed his presence from the victim. For these reasons, the evidence presented at trial would not have supported both an acquittal on the aggravated murder charge and a conviction on the charge of involuntary manslaughter. See State v. Bailey (1992), 90 Ohio App.3d 58. Accordingly, the trial court did not err in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. -19- Defendant-appellant's third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Terrence Ratliff, defendant-appellant, states as his fourth assignment of error: IV. THE TRIAL COURT'S PREJUDICIAL JURY INSTRUCTIONS VIOLATED MR. RATLIFF'S RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. A. ISSUE RAISED: WHETHER THE TRIAL COURT'S INSTRUCTIONS TO THE JURY CONSTITUTE PREJUDICIAL ERROR. Defendant-appellant argues the trial court committed prejudicial error in its instructions to the jury. Specifically, defendant-appellant argues the following instructions, and instances where the trial court failed to instruct, constitute prejudicial error: 1) the failure of the trial court to instruct the jury that defendant-appellant's prior convictions can only be considered when weighing his credibility, 2) the trial court stated that defendant-appellant was responsible for the natural and foreseeable consequences or results that follow, in the ordinary course of events, from his act, 3) the court instructed the jury that "causation" includes a failure to act and 4) the trial court instructed the jury that one cannot use force that would cause great bodily harm or death in the "defense of another." -20- Defendant-appellant's fourth assignment of error is not well taken. -21- B. STANDARD OF REVIEW: JURY INSTRUCTIONS. A charge to the jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.2d 10, 12. It is well established that a trial court should confine its instructions to the issues raised by the pleadings and the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. In Ohio, it is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287. However, requested instructions should ordinarily be given if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. However, the trial court is not required to give a proposed jury instruction in the exact language requested by its proponent, even if it properly states an applicable rule of law. The court retains discretion to use its own language to communicate the same legal principles. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690. When reviewing such an assignment of error, a single challenged jury instruction may not be reviewed piecemeal or in isolation but must be reviewed within the context of the entire charge. State v. Hardy (1971), 28 Ohio St.2d 89; State v. Price (1979), 60 Ohio St.2d 136; State v. Wise (Jan. 29, 1993), Wood -22- Cty. App. No. 91 WC 113, unreported. Accordingly, the proper standard of review for an appellate court is whether the trial court's refusal to give a defendant's requested instruction constituted an abuse of discretion under the facts and circumstances of the case. State v. Wolons (1989), 44 Ohio St.3d 64. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ITS INSTRUCTIONS TO THE JURY. First, we will address defendant-appellant's argument that the trial court abused its discretion in failing to instruct the jury that his prior convictions could only be considered when weighing his credibility. After closing arguments and subsequent to the jury charge, the following transpired: THE COURT: I believe the objections are not well taken. Anything else? [DEFENSE COUNSEL]: Well, just the purpose of his prior conviction. He argued that he is a drug dealer and should be convicted. THE COURT: We are talking about the jury instructions. [DEFENSE COUNSEL]: There is nothing about a prior conviction that goes to credibility. THE COURT: I didn't instruct on prior convictions. [DEFENSE COUNSEL]: I am saying in closing argument he mislead the jury. -23- THE COURT: I am talking about instructions, objections to the jury instructions. [DEFENSE COUNSEL]: That's why they should be included. THE COURT: Let me indicate something right now. I told you yesterday if you wanted any particularized jury instruction, to provide them to this court. You provided me with nothing yesterday. You didn't want a voluntary manslaughter charge. Today you think you want it. Is it I cannot instruct on something you do not request me to instruct on? I am not going to instruct on anything that you have not discussed prior to this point. Is there anything further? [DEFENSE COUNSEL]: That's it. (Tr. 764-65.) Initially we note that defense counsel did not request a special instruction in writing as required by Crim.R. 30(A). Further, it appears from the record that defense counsel was urging the trial court for a curative instruction, i.e., that evidence of prior convictions be received for the limited purpose of credibility. Crim.R. 30(B) states in pertinent part: Cautionary instruction. At the commencement and during the course of the trial, the court may give the jury cautionary and other instructions of law relating to trial procedure, credibility and weight of the evidence, and the duty and function of the jury and may acquaint the jury generally with the nature of the case. Actions by the trial court pursuant to Crim.R. 30(B) are a discretionary matter and will not be disturbed upon review unless -24- the court abuses its discretion. State v. Frost (1984), 14 Ohio App.3d 320. Although objecting to the line of questioning, defense counsel did not request the limited/curative instruction during the trial when the evidence of his prior convictions was introduced. Furthermore, defense counsel did not make a request in writing at the close of the trial pursuant to Crim.R. 30(A). More importantly, however, is the fact that defendant-appellant fails to demonstrate the prejudicial effect and/or any abuse of discretion by the trial court. Next, defendant-appellant argues the trial court abused its discretion in saying defendant-appellant was "responsible for the natural and foreseeable consequences or results that follow, in the ordinary course of events, from his act." Defendant- appellant argues, that by giving this instruction, the trial court removed the state's burden of proving he intended the victim's death. In essence, defendant-appellant argues the trial court instructed that defendant-appellant was responsible for the victim's death. Defendant-appellant also argues the trial court erred in instructing the jury that the "purpose" to cause the death of another includes a "failure to act." Defendant-appellant argues this instruction again alleviated the burden on the state to prove "purpose" to kill. We disagree. We begin by reiterating that "a jury instruction `*** must be viewed in the context of the overall charge, ***' rather than isolation." State v. Thompson (1987), 33 Ohio St.3d 1. Contrary -25- to the assertions of defendant-appellant, the trial court did instruct the jury that aggravated murder requires proof that the accused purposely caused the death of another. The trial court stated beginning at page 731 of the trial transcript: Aggravated murder is purposely causing the death of another with prior calculation and design. Before you can find the defendant guilty you must find beyond a reasonable doubt that on the 14th day of October 1995, and in Cuyahoga County Ohio, the defendant purposely caused the death of another with prior calculation and design, to wit, Neil Stokes. Purpose is an element of aggravated murder. Purposely causing the death of another. Purpose to cause the death of another is an essential element of the crime of the charge of aggravated murder. [A] person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the defendant a specific intent to cause the death of Neil Stokes. Purpose is a decision of the mind to do and act with a conscious objective of producing a specific result. To do an act purposely is to do it intentionally and not accidentally. Purposes and intent mean the same thing. The purpose with which a person does an act is known only to himself unless he expresses it to others or indicates it by his conduct. The purpose with which a person does an act is determined from the manner in which it was done, the means used and all other facts and circumstances in evidence. If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life, inflict great bodily harm, the purpose to cause the death may be inferred from the use of that weapon. Deadly weapon means any instrument, device or thing capable of inflicting death and designed or -26- specifically adapted for use as a weapon or possessed carried or used as a weapon. * * * Causation. Cause is an essential element of the offense charged. The State charges that the act of the defendant caused the death of Neil Stokes. Cause is and (sic) act or failure to act which in a natural and continuous sequence directly produces the death of a person and without which it would not have occurred. Natural consequences. The defendant's responsibility is not limited to the immediate and most obvious result of the defendant's act or failure to act. The defendant is also responsible for the natural and foreseeable consequences or results that follow, in the ordinary course of events, from his act or failure to act. After a review of the trial court's instructions with regard to "purpose," "causation" and "natural consequences," we find them to be correct statements of the law applicable to the facts and circumstances of this case. State v. Johnson (1978), 56 Ohio St.2d 35; State v. Frazier (1995), 73 Ohio St.3d 323; State v. Price (1979), 60 Ohio St.2d 136. Moreover, a review of the foregoing demonstrates substantial compliance with 4 Ohio Jury Instructions (1996) 41, Section 409.01 and 409.55. Although Ohio Jury Instructions do not have the force or effect as a rule of law, see State v. Napier (1995), 105 Ohio App.3d 713, we find under the circumstances of this case, the trial court did not abuse its discretion in their use. See State v. Burchfield (1993), 66 Ohio St.3d 261. -27- With the remaining alleged error cited by defendant-appellant concerning the use of force, we note that a failure to object to jury instructions before a jury retires in accordance with Crim.R. 30(A), absent plain error, constitutes waiver of the issue upon appeal. State v. Underwood (1983), 3 Ohio St.3d 12; State v. Williford (1990), 49 Ohio St.3d 247. In this case, it is clear defense counsel failed to object to the alleged error in the jury instructions complained of, i.e., the trial court's instruction that one cannot use force that would cause great bodily harm or death in the "defense of another." Assuming arguendo the trial court did err in this instance, any "error" would be harmless as it would not have effected the outcome of the trial. See State v. Long (1978), 53 Ohio St.2d 91. Again, we find defendant-appellant's argument unpersuasive in light of a full review of the evidence introduced at trial and of the jury charge in full. See, Hardy, supra. Defendant-appellant's fourth assignment of error is not well taken. V. FIFTH ASSIGNMENT OF ERROR Terrence Ratliff, defendant-appellant, states as his fifth assignment of error: V. THE TRIAL COURT DENIED A FAIR TRIAL WHEN IT INSTRUCTED THE JURY THAT THE JURY SHOULD ASK QUESTIONS "ONLY AS A LAST RESORT." A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN INSTRUCTING THE JURY TO ASK QUESTIONS ONLY AS A LAST RESORT. -28- Defendant-appellant argued the trial court denied him a fair trial when it instructed the jury that during deliberations, it should ask questions only as a last resort. Defendant-appellant's fifth assignment of error is not well taken. -29- B. STANDARD OF REVIEW: JURY INSTRUCTIONS. Again we note that when reviewing such an assignment of error, the proper standard of review for an appellate court is whether the trial court's refusal to give a defendant's requested instruction constituted an abuse of discretion under the facts and circumstances of the case. State v. Wolons (1989), 44 Ohio St.3d 64. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ITS INSTRUCTIONS TO THE JURY REGARDING ASKING THE COURT QUESTIONS DURING DELIBERATIONS. Contrary to defendant-appellant's mischaracterization of the trial court's comments, the court did not prohibit the jury from asking questions. The court stated: *** We'll not retry this case. And it is the (sic) particularly difficult for us to answer questions for you because it requires you to communicate the question in written form to my bailiff. She must give it to me. I will summon the attorneys. We must fashion a response. We must call you into open court. We must go on the record. Okay. And all that takes time. If you have a question, therefore, you should bring it up amongst yourselves. You should discuss it. If necessary refer to the jury instructions. And only as a last resort will you contact this Court with questions. Only as a last resort. -30- It is clear the trial court did not prohibit the jury from asking questions. It merely instructed the jury to ask questions as a last resort. In the absence of any relevant case law to the contrary, we do not find the instruction to the jury constitutes an abuse of discretion. Defendant-appellant's fifth assignment of error is not well taken. VI. SIXTH ASSIGNMENT OF ERROR Terrence Ratliff, defendant-appellant, states as his sixth assignment of error: VI. THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE STATE DID NOT PRESENT SUBSTANTIAL EVIDENCE THAT MR. RATLIFF HIT MR. STOKES IN THE HEAD, AND WHEN MR. RATLIFF PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT HE ACTED IN THE DEFENSE OF OTHERS. A. ISSUE RAISED: WHETHER THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues his conviction is against the manifest weight of the evidence. Specifically, defendant- appellant argues that when viewing the evidence presented at trial, it is reasonable to conclude defendant-appellant only hit the victim in the back of the neck and it was another individual who hit the victim in the head. Moreover, defendant-appellant argues the evidence presented at trial established defendant- appellant acted in the defense of another. Defendant-appellant states the victim was chasing Mr. Ross and trying to hit Mr. Ross -31- and a young child named Pierre. Accordingly, the guilty verdict was against the manifest weight of the evidence. Defendant-appellant's sixth assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT. In Tibbs v. Florida (1982), 457 U.S. 31, the United States Supreme Court recognized the distinction in standards between claims of "insufficiency of evidence" and "manifest weight of the evidence." Unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require the special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. See, also, State v. Schaim (1992), 65 Ohio St.3d 51; State v. Wilson (June 9, 1994), Cuyahoga App. No. 64442, 64443, unreported. Upon application of the standards established in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the 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. -32- Moreover, it is important to note the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence, we must accord due deference to those determinations made by the trier of fact. C. DEFENDANT-APPELLANT'S CONVICTION IS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, defendant-appellant was indicted and ultimately convicted for aggravated murder pursuant to R.C. 2903.01 which reads in pertinent part: (A) No person shall purposely, and with prior calculation and design, cause the death of another. Again, after a review of the entire record, we find there was sufficient credible evidence presented at trial establishing that defendant-appellant drove past the group of males throwing things at the victim. He then made a conscious decision to park his vehicle, get out of his car and take with him a baseball bat. Defendant-appellant then approached the victim from behind in an attempt to conceal his presence and hit the victim in the back right side of the head which is again, arguably the most vulnerable portion of the victim's body. Defendant-appellant used such force as to immediately render the victim incapacitated and eventually cause the death of the victim. While defendant-appellant argues the preceding version of events was depicted through unreliable witnesses and witnesses whose credibility is questionable, we find a reasonable jury -33- could reach the opposite conclusion. A review of the defense witnesses' testimony reveals their version of events is at times confused, contradictory and in many instances, unsupported by the record. Keeping in mind the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact, DeHass, supra, we cannot say the jury clearly lost its way and created a manifest miscarriage of justice. Defendant-appellant's sixth assignment of error is not well taken. Judgment affirmed. -34- 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. PORTER, J. and ABOOD, J., CONCUR. (Judge Charles D. Abood, Retired Judge of the Sixth Appellate District, sitting by assignment.) DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(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 .