COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70752 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION LARRY JERIDO : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 10, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-334793. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard J. Bombik Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: Kevin M. Cafferkey 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., C.J.: Defendant-appellant Larry Jerido, d.o.b. May 26, 1956, appeals from his jury trial conviction of the lesser included offense of one count of Murder [R.C. 2903.02], involving the purposeful death 1 of Sherman R. Carpenter on or about January 18, 1996 . For the reasons adduced below, we affirm. A review of the record on appeal indicates that the police were summoned to the home of the victim on Tuesday, January 23, 1996, by the defendant, who expressed concern for the safety of the 2 victim, whom he had not seen in several days . The defendant opened the locked and dead-bolted front door for the two officers with a key that had allegedly been provided to him by the victim. There was no sign of forced entry in the home. In the area of the kitchen, the police noticed blood on the floor and a small amount of blood near the handle on the lid to the freezer. The defendant pointed to the large, 26-inch RCA floor model television console on top of the freezer, and asked the officers why the television was placed there. The officers removed the television from the freezer 1 The defendant-appellant was originally indicted on one count of Aggravated Murder [R.C. 2903.01(A)]. 2 The victim's home was located at 4290 East 138th Street, Cleveland, Ohio. This home is a single story ranch structure containing two bedrooms, one bathroom, a kitchen with attached utility room, a living room, and an attic accessed by a pull- down ladder in the ceiling of the utility room area. One of the bedrooms, containing a couch and a chair instead of a bed, was used as a television viewing room. The home, having been built on a slab of concrete, does not have a basement. - 3 - and opened the lid, revealing the frozen corpse of the victim inside in a fetal position. At the trial, the State offered the testimony of eighteen witnesses. The first witness for the prosecution, Dr. Marta Steinberg, testified that she was the deputy county coroner who performed the autopsy on the victim after allowing the solidly frozen body to thaw for three days at the coroner's office, the time being computed from the witness first observing the body, at 7:56 a.m. on January 24, 1996, to the time of the autopsy, at 8:30 a.m. on January 27, 1996. All told, from the time the body was first moved from the crime scene to the time the witness performed the autopsy, the victim's body had thawed for approximately three- and-one-half days. This indicates that the victim was in the freezer for at least three-and-one-half days, placing the date of death, according to the coroner, on or about January 18, 1996, when accounting for additional time for the decomposition of the body which was evident in the autopsy. This witness noted that the victim was forty years old, weighed 109 pounds, and stood 63 inches tall. The witness also detailed that the victim exhibited blunt impact trauma to the head, chest, right hand, arm and shoulder, and strangulation around the neck. The victim's stomach contents indicated that he had not ingested food within two hours of the time of death, and internal examination of the organs did not demonstrate evidence of prior drug use. Toxicology results on the victim's body fluids indicated that no drugs or alcohol were - 4 - present. The coroner concluded that the cause of death was from strangulation, and that the victim could have been alive and unconscious when he was placed inside the freezer. The second witness for the prosecution, Cleveland Homicide Detective Jack Bornfeld, testified that he and several other homicide detectives, namely, Detectives O'Malley, Gray and Burger, were dispatched to the crime scene at approximately 7:20 p.m. on January 23, 1996. The witness stated that the victim's home was missing a stereo audio system and some audio compact discs from a cabinet in the living room, with smearing evident on the face of the stereo cabinet. Near a counter in the kitchen area was found a one-gallon glass jug containing a clear liquid, sitting in a puddle of dried blood on the floor. Next to this jug was found a brown paper bag containing an empty Michelob beer bottle and a cardboard carrying case for Michelob beer bottles. The bottom of the brown paper bag was soaked in dried blood. The witness also observed: smeared dried blood on the handle to the freezer and splattered dried blood on the side of the freezer; a black plastic trash bag containing an empty Michelob beer bottle and green Playtex rubber kitchen gloves; that the ladder to the attic had been pulled down; an empty Michelob beer bottle on the dresser in the victim's bedroom; the victim's wallet on top of the dresser contained six dollars and various identification cards; loose change on top of the dresser; another empty Michelob beer bottle in the wastebasket in the bedroom; the drawers of the dresser were opened and appeared - 5 - to have been gone through as if someone was searching for something; and that all the windows and doors, except for the front door which had been opened for police access, were barred and locked, inferring that whoever committed the offense either was voluntarily admitted or had a key to the home. Also found in the home were: the registration to the victim's Toyota Camry automobile; a Bryco Arms gun box containing an ammunition clip with six rounds of .380 caliber ammunition, but no firearm; a receipt from a drugstore dated January 17, 1996 at 1:11 p.m.; an empty Michelob beer bottle in the wastebasket in the living room; frayed video wires in the second bedroom, indicating that the television and videocassette recorder that had been there were missing; two calendars with the last date crossed off being January 17, 1996; a gray stool near the kitchen, with several drops of dried blood on it and which was found laying on its side; handwritten notes, signed first by "Larry" and next by "Ricky," on a brown paper bag 3 attached to the top of the refrigerator ; wipe marks on the 3 The note on the paper bag stated: Sherman, what the hell happened here? I came by to stay for awhile. I looked around the house. All your shit is gone. Your floor model TV is on the freezer and there's -- what appears to be blood on the floor in the kitchen. (You haven't called and now I'm worried. No, I'm scared.) What's wrong, call me. I don't care what time. Please, I pray all is well. Larry. Immediately below this note signed by Larry is a second note in a different handwriting, signed by "Ricky": - 6 - refrigerator. No drugs or drug paraphernalia were found in the home. Notations on one of the calendars indicated that the victim was scheduled to work on January 14-17 and 20, but was scheduled to not work on January 18 and 19. Notations in the victim's pocket calendar indicated that the cable television company was scheduled to make a service call to the home on January 20, 1996, and to notify Richard McCain in case of a medical emergency. Correspondence found at the scene indicated that, in late December of 1995, the victim had undergone drug rehabilitation and was authorized to return to work at the Regional Transit Authority ("RTA"). After returning to his office from the crime scene, Detective Bornfeld received separate telephone calls from Rev. Richard McCain and Richard McCain, Jr., aka Ricky. The third witness for the prosecution, Cleveland Police Patrolman Gregory Ramser, testified that he and his partner, Officer Lally, were dispatched to the victim's home at approximately 7:00 p.m. on January 23, 1996, to meet a male in connection with a missing person and a puddle of blood in the kitchen. Arriving on the scene, the officers were met by three people, namely, the defendant, Edwina Isom, and the defendant's thirteen-year-old son. The adolescent son was left in the white car which the trio had been occupying when the police arrived, and did not go into the home. No car was seen in the victim's And that shit goes double for me. Call me or page me ASAP, as soon as possible. Ricky. - 7 - driveway. The defendant told the officers that he had a key to the home from the victim, that he had been inside the home several times and related the condition of the interior (which concerned the defendant), and that the victim had been unaccounted for since January 18. The defendant claimed that he used the home for sexual episodes with his girlfriend, with the consent of the victim. As the officers were about to leave, the defendant wondered aloud as to why the television console was on top of the freezer. The witness thought that, in making the statement, the defendant wanted the police to check out the freezer. After locating the victim's body in the freezer, the officers asked the defendant and the girlfriend to sit in the back of the zone car while the officers called their supervisor. The witness escorted the defendant to the zone car, placed him in the back seat, "advised him that he was under arrest," and read him his Miranda rights. (R. 630.) The defendant said he had nothing to hide, did not want a lawyer and proceeded to answer all interview questions put to him by the 4 witness . The defendant claimed that he lived in Lakewood, that he had lived with the victim about a year ago, and he last saw the victim on January 18, 1996, when the defendant, accompanied by Ms. Isom, was at the home around 7:00 p.m., while the victim played the piano and sang songs. Ms. Isom stated to the police that she was 4 On cross-examination, this witness stated that he did not place the defendant under arrest in the zone car, but did advise him of his constitutional rights before asking some basic questions. (R. 641-642.) - 8 - with the defendant at the victim's home on January 18, 1996. On Monday, January 22, 1996, the defendant claimed to have visited the home, at which time he left the note on the bag on the refrigerator. Also on January 22, the defendant claimed that he went to the victim's place of employment and talked to a "Tony" to see if the victim had been at work that day, but was informed that the victim had not shown up for work on that day. The fourth witness for the prosecution, Detective Donald Meel of the Cleveland Police Department Scientific Investigation Unit ("SIU"), testified as to the collection of trace evidence from the crime scene. This witness testified that a number of surfaces within the home had been wiped down, showing jagged streak marks, prior to the time of the discovery of the body, including the refrigerator door, the freezer door and the glass door on the stereo cabinet. The jagged nature of the streak marks indicate, according to this witness, that the wiping was done in a hurried manner. He obtained a number of latent prints from different surfaces in the home, including furniture, appliances, beer bottles, picture frames, electrical outlets, and paper bags. He also collected a number of suspected blood samples and hair and fiber evidence from the home. The fifth witness for the prosecution, Rev. Richard J. McCain, testified that he lives on East 151st Street in Cleveland, and had known the victim since the victim was thirteen years old. The witness has a son, Richard McCain, Jr., who is known as "Ricky." - 9 - The victim was the pianist at the witness's Sunday morning services. The victim gave the witness a set of keys to the front entrance door to the victim's house in 1995. The witness, who also is a drug counselor and who had discussions with the victim concerning the victim's drug problems, was aware that the victim had been successfully involved in a course of drug rehabilitation just prior to his death. The last time the witness saw the victim alive was on January 16, 1996, at the witness's house in the middle of the afternoon. Prior to going to the church for services on Sunday, January 21, 1996, the witness telephoned the victim's home two times, but there was no answer. The witness then sent his son, Ricky, to the victim's home to see if the victim had overslept that morning. Ricky later came to the church without the victim and the victim did not attend the church services that morning. The witness's next attempt to reach the victim was on Tuesday, January 23, 1996, when he sent his son, Ricky, to the victim's home in the afternoon. It was at this visit that Ricky left his note on the bag on the refrigerator. On the evening the victim's body was found by the police, the witness and his son drove to the victim's home, noticed the police line around the scene, went home, and telephoned the police to inquire as to what was happening. At the time of the death, to the best of this witness's knowledge, the victim was free from the use of drugs and alcohol. The sixth witness for the prosecution, Cleveland Firefighter David Austin, testified that at 4:49 a.m. on January 18, 1996, he - 10 - and his engine crew responded to a call concerning a car fire at East 142nd Street and Kinsman Avenue in the rear parking lot of a storefront. The car, a Toyota Camry, was ignited by placing a match to gasoline. The car fire was extinguished by 5:30 a.m. The seventh witness for the prosecution, RTA equipment department supervisor James Akers, testified that the victim worked for him as a full-time employee at the time of the offense. This witness corroborated the work schedule indicated on the calendars found in the victim's home, that the victim worked the 6:00 p.m. to 2:30 a.m. shift, and that the victim left work on Wednesday morning, January 18, 1996, at 2:30 a.m., but did not show up for scheduled work on Saturday, January 20, 1996. The witness also corroborated the fact that the victim had been suspended from work for thirty days in late 1995 for alcohol rehabilitation, which the victim successfully completed before returning to work in early 1996. Finally, the witness stated that a man and a woman visited his worksite on Tuesday, January 23, 1996, at approximately 7:00 p.m., inquiring about the whereabouts of the victim, and that these two persons were driving a white car. The eighth witness for the prosecution, Cleveland Patrolman Carl Perkins, testified that, while on normal patrol, he observed the burned-out hulk which was the victim's car on January 24, 1996 at approximately 3:00 a.m. The ninth witness for the prosecution, Ms. LaTonya Fears, testified that she has been in a romantic relationship with the - 11 - defendant for approximately two-and-one-half years, since early 1994, which resulted in the birth of a daughter. The defendant spent the night of Friday, January 19, 1996, with the witness and indicated that he was having marital difficulties with his wife and wanted to be more involved with his daughter's life. The witness did not remember the defendant coming to her home on Thursday morning, January 18, 1996, at 5:00 a.m., but it was possible. (R. 822.) On cross-examination, the witness claimed that the prosecutor wanted her to say that the defendant came to her home on the morning of January 18, 1996, and smelled like gasoline. On re- direct examination, the witness modified this statement by stating that the prosecutor only asked her several times whether the defendant came to her home on that date smelling of gasoline. The witness was also aware that the defendant lived with the victim from approximately May to August in 1995. The tenth witness for the prosecution, county coroner serologist Ms. Kay May, testified that she analyzed the blood samples gathered by the police at the victim's home. Tests indicated that the blood on the floor and the freezer was the victim's. The eleventh witness for the prosecution, county coroner trace evidence analyst Ms. Sharon Rosenberg, testified that hair evidence taken from police collected samples indicated the victim and another unidentified person as the source. - 12 - The twelfth witness for the prosecution, Mr. Richard J. McCain, Jr., corroborated the testimony of his father and added that he is twenty-six years old and had known the victim all of his life. The witness stated that the defendant did not live with the victim in the summer of 1995, but did know the defendant to have lived for a time with the victim, but did not know when the defendant moved out of the victim's home. The witness last saw the victim alive on Wednesday, January 17, 1996, around noon at the witness's home for a couple of hours. When the witness, following the directions of his father, stopped at the victim's home on Sunday, January 21, 1996, at approximately 10:30 a.m., he tooted his car horn and received no response. Not seeing the victim's car in the driveway where it was normally parked, and having received no response from the tooting of the horn, the witness inferred that the victim had already left for church services so he did not go into the home. The witness returned to the victim's home on that Sunday evening, at approximately 6:15 p.m., noted that no cars were in the driveway and let himself into the home with the keys that the victim had provided his family. At this time, the witness noticed the blood on the floor, the television console on top of the freezer, the missing stereo components, the pulled-down stairs to the attic and the victim's wallet on top of the dresser in the bedroom. After about five minutes inside the home, the witness left, locking the front door on his way out, and returned to his own home and told his parents what he had observed. The witness - 13 - returned to the victim's home on Monday, January 22, 1996, in the evening, and saw that nothing had changed from his earlier visit. At this time the witness left a note on the brown paper bag that was already on the refrigerator with another note already written on it from the defendant. On Tuesday afternoon, January 23, 1996, the witness returned to the victim's home and took in the mail, then left. Apart from his own family, the witness was unaware of anyone but the victim having keys to the victim's home. The victim was concerned about his home being burglarized. The witness had no knowledge of the victim having a problem with the defendant, but did state that the victim bought drugs from the defendant and another man named Sean. The thirteenth witness for the prosecution, Ms. Theresa White, testified that she is twenty-seven years old and has been the defendant's girlfriend for approximately two years. The defendant spent the night of Tuesday, January 23, 1996, at her home after he was questioned by the police after the victim was found in the freezer. The defendant was arrested on Wednesday, January 24, 1996. The witness was last at the victim's home on Thursday, January 18, 1996, at approximately 4:00 p.m. and 6:00 p.m., for the purpose of buying some crack cocaine from the defendant who was at 5 the victim's home . During these two visits which lasted 5 Following an objection by the defense, the trial court denied a motion for a mistrial and cautioned the jury to disregard any reference to drug sales in this witness's testimony. (R. 954-955.) - 14 - approximately five minutes each, the witness saw the victim's car in the driveway, did not see the victim, and did not go inside the home because the defendant came outside. The fourteenth witness for the prosecution, Cleveland Police Detective SIU fingerprint examiner Mr. Edward Prinz, testified that no latent fingerprints taken from the crime scene were identified as the defendant's. The fifteenth witness for the prosecution, Ms. Linda Carpenter, testified that she is a thirty-seven year old resident of Joliet, Illinois, and is the sister of the victim. She would visit the victim for one-week visits approximately twice per year and she was not aware that anyone lived with the victim. She has been in the victim's house four times since the death of her brother, with the help of the police, to clean up and pack belongings and has never found any house keys or car keys therein. The sixteenth witness for the prosecution, Mr. George Wilson, testified that he is a cook at the Swamp Club in Solon, Ohio. The witness stated that the defendant worked for the Swamp Club as a cook and delivery person. On Wednesday, January 17, 1996, the defendant briefly met the witness at work and asked the witness for permission to store some personal belongings at the witness's home because the defendant was in the process of moving. The witness made arrangements to have the defendant bring the belongings to the witness's home on Thursday, January 18, 1996, but the defendant - 15 - never showed up; Instead, the defendant showed up on Saturday morning, January 20, 1996. The seventeenth witness for the prosecution, Ms. Edwina Erica Isom, testified that she is nineteen years old and was dating the defendant in January of 1996. According to her written statement given to the police, she and the defendant drove in the defendant's car to the victim's home on Wednesday, January 17, 1996, at approximately 5:15 p.m., at which time the victim, who had opened the door for them, played the piano for her. She next went to the victim's home on Monday, January 22, 1996. On this visit, the defendant, without knocking on the door or ringing the doorbell first, opened the locked door and let them in, but the victim was not around. The defendant and the witness toured the home while the defendant was identifying items that were missing within the home and inspecting the wallet in the bedroom and the bloody bag near the kitchen. After approximately twenty minutes inside the home, the defendant left a note on a brown paper bag on the refrigerator. On Tuesday, January 23, 1996, at approximately 5:30 p.m., the witness and the defendant again visited the home, saw that nothing had changed, and decided to contact the police from a car phone in the defendant's car. The defendant let the police in the house when the police arrived a short time later. After discovering the body of the victim, the defendant and the witness were interviewed by the police in the rear of a squad car. While in the rear of the squad car, the defendant told the witness that - 16 - he had forgotten to tell the police that he had seen the victim on Thursday, January 18, 1996, at which time the victim had given the defendant keys to the home. (R. 1045-1046.) The defendant also allegedly told the witness, while in the squad car, that during this Thursday visit, the victim made a sexual advance on the defendant which was rebuffed by the defendant. The witness also alleged that on the Monday visit to the home, a day before the police discovered the body, the defendant told her before leaving the home that he could not believe that somebody had murdered the victim. (R. 1050.) After being interviewed on the night the body was discovered, the defendant took the witness home. The eighteenth, and final, witness for the prosecution, Cleveland Homicide Detective Edward Gray, corroborated the earlier testimony of Detective Bornfeld. This witness added that he interviewed the defendant in the front seat of the witness's car after the discovery of the body, and reduced statements made in that interview to a written report. The witness indicated that the defendant is five feet eleven inches tall and weighs 220 pounds. Additionally, the witness stated that the defendant told him that he was planning on moving in with the victim, that the victim had recently evicted a drug user named "Tim" who had been staying in the victim's home with the victim, and that he, the defendant, had nothing to do with the death of the victim. The witness's investigation revealed that the victim's home was burglarized six times between 1988 and 1991. The defendant also provided a four- - 17 - page written statement to the witness, in which the defendant, answering every question put to him, claimed he was at the victim's home on Thursday, January 18, 1996, at 4:00 p.m., at which time the victim gave him a set of house keys and made an unwanted, and rebuffed, sexual advance before the victim left for work at approximately 5:00 p.m. The defendant also claimed that the victim had a homosexual lover named "Tony" who worked at the RTA. The witness interviewed a Mr. Tony Holland, but received no important information. After ruling on the admission of the exhibits into evidence, the defense moved for acquittal pursuant to Crim.R. 29. Subsequent to oral arguments by the parties, the trial court denied this motion. (R. 1164.) 6 The lone witness for the defense , Ms. Marion Wright, testified that she had known the victim for the past five years and had loaned him money on occasion. This witness, who is sixty-two years old, further stated that she learned of the death on the day the body was found by the police, Tuesday, January 23, 1996. She was surprised to hear of the death because she claimed that she had seen the victim alive on Saturday, January 20, 1996, at approximately 10:00 a.m., when she stopped by his house and spoke with him for about ten minutes inside the home. The victim's car was also in the driveway at that time according to the witness. After leaving his house, the witness went drove to K-Mart at 6 The defendant did not testify on his own behalf. - 18 - Southgate shopping center. The witness claimed to have also shopped at that same K-Mart on Sunday, January 21, 1996. She produced a store receipt with a time of 11:00 a.m. printed on the receipt from the Saturday shopping excursion to K-Mart. When confronted with the fire department evidence that the victim's car had been torched as of 5:00 a.m., Thursday, January 18, 1996, the witness declared that she could be mistaken as to the date she last saw the victim alive. (R. 1186.) At this point, the defense rested and renewed its motion for acquittal. The trial court denied this renewed motion. The court then entertained arguments by the parties relative to charging the jury on the lesser included offense of Murder. Following closing arguments, the court instructed the jury on the offenses of Aggravated Murder and Murder. The jury returned a verdict of guilty on the lesser included offense of Murder. This appeal followed presenting eight assignments of error. I THE TRIAL COURT ERRED IN ADMITTING PREJUDICIAL REMARKS OF THE APPELLANT WHICH WERE OBTAINED IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. In this assignment, appellant argues that his statements made to Officer Ramser while in the rear of the zone car after the discovery of the victim's body on January 23, 1996, should have been excluded because he was under custody while in that car and the officer did not advise him of his constitutional rights, vis- - 19 - a-vis Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, prior to questioning him. This interview by the police consisted of obtaining general information from the defendant, to-wit, name, address, phone number, relationship with the victim, and when was the last time the victim was seen alive and under what circumstances. "Miranda warnings are due only when a suspect interrogated by the police is 'in custody'." Thompson v. Keohane (1995), 116 S.Ct. 457, 460. A custodial interrogation occurs where, based on the totality of the circumstances, a reasonable person was actually taken into custody or otherwise deprived of his freedom of action in any significant way. 384 U.S., at 444, 86 S.Ct., at 1612. In the case sub judice, the record reflects that the defendant: (1) initiated the call which brought the police to the victim's home; (2) let the police into the home and assisted the officers in the search of the home; (3) voluntarily complied with the officer's request after the body was found that they sit in the zone car while general information was taken; (4) fully cooperated with the police by answering, without objection or hesitation, all questions put to him; (5) was free to leave the zone car and the scene, which he did, once the informational questioning was completed. These facts do not demonstrate that the defendant was in custody while in the zone car sufficient to invoke the reading of Miranda warnings. - 20 - Despite our conclusion that the warnings were not required, the record clearly demonstrates that, contrary to the assertion of the appellant, Officer Ramser, prior to questioning the defendant while in the zone car, advised the defendant of his constitutional rights. (R. 630.) The defendant then declined to invoke his constitutional rights and voluntarily answered all questions put to him by the police before leaving the scene once the brief on-the- scene questioning was concluded. The first assignment of error is overruled. II THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29(A), AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. The standard of review for an argument based on sufficiency of the evidence was stated by this court in State v. Wigley (February 6, 1997), Cuyahoga App. No. 69920, unreported, at 8-9, citing State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported, 1996 WL 65875, at 3: The standard of review with regard to the sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment 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. - 21 - See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. Also see State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus: A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. The appellant was convicted of Murder pursuant to R.C. 2903.02(A), which provides: (A) No person shall purposely cause the death of another. The evidence offered by the prosecution indicates that the victim left work at 2:30 a.m. on January 18, 1996, and was not scheduled to work, and did not work, on the afternoon of January - 22 - 18, 1996. There were no signs of forced entry to the home, so the killer either was let in or had a set of keys. The defendant made a written statement to the police that he was with the victim at the victim's home at approximately 5:00 p.m. on January 18, 1996, at which time an alleged sexual advance was made by the victim to the defendant, and after which the victim left for work. How the victim could have left for work at 5:00 p.m. on his day off when the victim's car was discovered burning by the authorities twelve hours earlier at 5:00 a.m. on January 18 brings the defendant's statement into question. Ms. White testified that she visited the victim's home at 4:00 p.m. and 6:00 p.m. on January 18, 1996, and she noted that the defendant was present, but she did not see the victim. These accounts present a clear difference of opinion relative to whether the victim was at the home or had left for work. Based on the evidence, the defendant was the last person who saw the victim alive and the defendant, according to his police statement, had a set of house keys. The defendant having a set of house keys flies in the face of testimony that the victim had no one staying with him and that only the McCains had a second set of house keys. Ms. Isom also testified that the defendant immediately knew what was missing from the home and that the defendant, a day prior to the time the body was discovered, stated that he could not believe that someone had murdered the victim. This statement by the defendant to Ms. Isom begs the question: How could the defendant have known that the victim was indeed dead - 23 - or had been murdered at that point in time unless he had knowledge of the crime? Noting the great physical disparity between the victim and the defendant, it is obvious that the defendant is physically capable of strangling the victim, placing the body in the freezer and then placing the television console on top of the freezer. Finally, the coroner testified that the body had been frozen at least three-and-one-half days, and that the additional state of decomposition accounts for placing the date of death on January 18, 1996. The coroner also testified that strangulation in the manner practiced on the victim could only be an intentional act by the perpetrator by virtue of the presence of broken bones in the victim's neck. This circumstantial evidence, when viewed in a light most reasonable to the prosecution, is sufficient to support a conviction for Murder. The second assignment of error is overruled. III THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The Supreme Court set forth the test for appellate review of manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259,273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely - 24 - (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. Jenks, supra. Based upon the facts delineated in the second assignment of error, and the remainder of the evidence in the record, we conclude that the elements of the offense of Murder could have been proven beyond a reasonable doubt. The third assignment of error is overruled. IV THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE LESSER INCLUDED OFFENSE OF MURDER. A jury instruction on a lesser included offense is required where the evidence presented at trial would reasonably support an acquittal on the crime charged and a conviction on the lesser included offense. State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus. In the case sub judice, the evidence presented at trial would reasonably support an acquittal on the offense of Aggravated Murder due to the sparse evidence available relating to the element of prior calculation and design. Except for the element of prior calculation and design, the elements of Murder are identical to the elements of Aggravated Murder. The evidence provided the trial court reasonably supported a conviction for Murder. Accordingly, the trial court did not err in instructing on the lesser included offense of Murder. - 25 - The fourth assignment of error is overruled. V THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A MISTRIAL FOLLOWING EVIDENCE THAT THE PROSECUTION HAD FAILED TO REVEAL EXCULPATORY EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The allegedly exculpatory information referred to in this assignment involves the statement of Ms. White, who later testified on behalf of the defense, in which she claimed to have seen the victim alive on January 20, 1996. The record reflects that Ms. White was identified as a potential witness by the prosecution prior to the trial on a witness list which was provided to the defense. The defense, on opening statement, stated that the evidence would show that the victim was alive on January 20, 1996. (R. 495.) Ms. White was subpoenaed by the defense and restated the substance of the statement during her examination before the trial court. Although the witness statement of Ms. Wright was not forwarded to the defense until after the prosecution had called its final witness, the defense has failed to show that any prejudice resulted in the prosecution's action sufficient to have caused a different result in the outcome of the trial. See United States v. Brady (1985), 473 U.S. 667, 105 S.Ct. 3375. Accordingly, the error was harmless - 26 - and the trial court did not err in denying the motion for a mistrial on that issue. The fifth assignment of error is overruled. VI THE DEFENDANT-APPELLANT WAS DENIED HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE PROSECUTING ATTORNEY IMPROPERLY INTRODUCED EVIDENCE ON HIS INVOLVEMENT IN THE DRUG TRADE WHEN THE DEFENDANT-APPELLANT EXERCISED HIS CONSTITUTIONAL RIGHT NOT TO TESTIFY IN HIS DEFENSE. Prior to the commencement of the trial, the court ruled on a motion to suppress by the defense that references to the defendant's involvement in drug activity would not be allowed at trial. Thereafter, during the defense cross-examination of Richard McCain, Jr., the following exchange transpired: Q. How often did you check the home of Sherman Carpenter? A. About twice a week. Q. When did you start doing that? A. Probably about three months before he was murdered. Q. He requested you to do that? A. Yes. Q. He was concerned about people breaking into the house? A. Yes. Q. He was afraid of that, of those people, correct? A. Yes. - 27 - Q. Did you tell about his drug activity? A. Yes. Q. Did you know the individuals with whom or from whom he was buying drugs? A. Some of them. Q. With respect to -- withdraw that. Sherman Carpenter told you Larry Jerido was his friend? A. Yes. (R. 905-906.) The prosecutor, during re-direct examination of this witness, immediately zeroed in on this line of questioning: Q. Do you recall Mr. Carlin [defense attorney] questioning you concerning your knowledge of the people from whom Sherman may have bought drugs from? MR. CARLIN: Objection, Judge. May we approach the bench? THE COURT: Yes. [Explanation added](R. 909). Thereafter, the parties vigorously argued whether this line of questioning could continue. (R. 909-916.) After the trial court overruled the defense objection, the prosecution resumed its re- direct examination of the younger Mr. McCain: THE COURT: Objection overruled. You may proceed. Q. Mr. McCain, you indicated during cross- examination that you were aware of the names of some of the people that sold drugs to Sherman? A. Yes. Q. Is that correct? - 28 - A. Yes. Q. Can you give us the names to your knowledge of the people that you know of who sold drugs to Sherman? A. There was one guy, one guy named Sean. Q. Sean? A. And then there was Larry. Q. Larry who? A. Larry Jerido. MR. BOMBIK [the prosecutor]: Thank you. I have nothing further. [Explanation added] (R. 916-917.) On re-cross-examination of this same witness, the following exchange occurred: Q. With respect to Mr. Jerido and Sherman, did they participate in doing drugs do you know? A. Who is they? Q. Jerido and Mr. Carpenter? A. Not to my knowledge. Q. Okay, how did you learn that Larry and Sherman ever did drugs together or that Larry ever had anything to do with drugs with Sherman? A. Sherman, he told me that at the time Larry was living with him that's why he had so many problems because he was getting it from Larry and it was so easy for him to get. Q. Larry moved out? - 29 - A. I'm not sure if that's the reason why larry moved out, but yes, Larry did move out. Q. That's what Sherman told you? A. Yes. (R. 917-918.) The witness, continuing his re-cross-examination, stated that the victim told him this about the defendant about a year before the murder. (R. 918.) The record clearly reflects that defense counsel, on cross- examination, opened the door to questions involving the defendant's drug activity. Accordingly, the prosecutor's continued questioning on the issue was entirely proper. The sixth assignment of error is overruled. VII THE DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. The standard of review for addressing an argument based upon the alleged ineffective assistance of trial counsel was recently stated in State v. Brooks (1996), 75 Ohio St.3d 148, 157, 661 N.E.2d 1030: Reversal of a conviction on the basis of ineffective assistance of counsel requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense, that is, deprived the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. - 30 - Appellant argues that trial counsel's performance, in opening the door to evidence concerning the defendant-appellant's drug activity, was deficient and deprived him of a fair trial. See the sixth assignment of error above. Upon reviewing the examination set forth in the sixth assignment of error, we note several concerns. First, the reference to the drug activity was very brief when considered in relation to the remainder of the evidence. It was only in the passages previously detailed in the previous assignment that the defendant's history of drug activity with the victim was mentioned in the jury's presence and allowed to be considered as evidence. Also, the testimony provided above indicates that any drug activity with the defendant ceased approximately one year before the murder. Further testimony indicated that, if the defendant did live with the victim at all, that the defendant moved out approximately five months before the murder. This presents the inference that the defendant's drug activity was irrelevant to the murder. Any prejudice inuring to the defense case thereby is minimal. Absent prejudice, ineffective assistance of counsel cannot be demonstrated. The seventh assignment of error is overruled. VIII THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL BASED ON THE MISCONDUCT OF THE PROSECUTING ATTORNEY. - 31 - In this assignment, appellant asserts two examples of alleged prosecutorial misconduct: (1) intimidating witness LaTonya Fears to lie by saying that the defendant came to the witness's home in the early morning hours of January 18, 1996, smelling of gasoline; (2) the questioning of witness Richard McCain, Jr. (as detailed in the sixth assignment above) concerning the drug activity of the defendant in relation to the victim. The standard of review for the issue presented in this assignment was recently stated in State v. Dixon (March 13, 1997), Cuyahoga App. No. 68338, unreported, 1997 Ohio App. LEXIS 915, at 29: Generally, conduct of a prosecuting attorney at trial shall not be grounds for reversible error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v. Papp (1978), 64 Ohio App.2d 203, 412 N.E.2d 401. An appellant is entitled to a new trial only when a prosecutor asks improper questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the appellant guilty. State v. Maurer (1984), 15 Ohio St.3d 239, 266, 473 N.E.2d 768; State v. Awkal, supra. See also State v. Awkal (April 13, 1995), Cuyahoga App. No. 66291, unreported, 1993 Ohio App. LEXIS 1576. The record indicates that LaTonya Fears was asked several times whether the defendant had come to her home at 5:00 a.m. on January 18, 1996, and that she answered at one point that he may - 32 - have (R. 822) and, when pressed on further examination, was adamant that he did not come over on that date smelling of gasoline. When asked by the prosecutor on re-direct examination, the witness stated that the prosecutor never told her to lie, and to tell the truth when she testified (R. 835). The witness also stated that she was not threatened by the prosecutor to change her testimony. (R. 836.) While this line of questioning appears to be repetitive and hard hitting, it does not appear to be of sufficient force as to intimidate or coerce the witness to not testify truthfully. In short, it does not appear that this questioning negatively affected the defendant's trial. If anything, this evidence, standing alone, tends to exculpate the defendant. Being non-prejudicial to the defendant, the questioning of Ms. Fears does not support a charge of prosecutorial misconduct. Finally, having determined in previous assignments that the prosecutor's questioning of Mr. Richard McCain, Jr. about the drug activity of the defendant was neither improper nor an exercise in ineffective assistance of defense counsel, there can likewise be no demonstration of prosecutorial misconduct. The eighth assignment of error is overruled. Judgment affirmed. - 33 - 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. ANN DYKE, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 of decision by the .