COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70781 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN L. HOLLIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 15, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-321810 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building DENISE R. CAMERON, Assistant Suite 1016 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant John L. Hollis appeals from his conviction for felonious assault (R.C. 2903.11) following a jury trial in the Common Pleas Court. Defendant assigns ten errors including double jeopardy, the trial court's failure to suppress certain evidence, improper admission of prior acts or collateral matters, improper instructions to the jury and conviction on a duplicitous indictment. Defendant also claims his conviction was not supported by sufficient evidence and against the manifest weight of the evidence. We find no reversible error and affirm. The charges against defendant arose out of an altercation with his ex-wife, Rosemary Hollis, on March 30, 1995. According to Mrs. Hollis, she was estranged from defendant but went to his home on March 30 to talk with a man concerning upholstery cleaning of fire damaged furniture. She brought a $10,000 insurance check with her for the defendant to sign. When the upholstery cleaner arrived, she and defendant talked with him in the dining room. After he left, the victim asked defendant to go to the bank in order to cash the check from the insurance company. Defendant said, "Wait a minute, I have to go in the basement to get my money." He went downstairs to the basement, returned and said he would kill her. He reached into his jacket, removed a gun and shot several times at the victim. They played cat and mouse near the china cabinet. When Mrs. Hollis stuck her head out, defendant shot her in the jaw. She pushed the china - 3 - cabinet over and ran to the upstairs bedroom to escape defendant. As she ran up the stairs, she was again shot in the back of her shoulder. She barricaded herself in the bedroom. Defendant followed her upstairs and tried to get in, but could not. He stuck the gun in the crack of the door. Fearing for her life, Mrs. Hollis ran upstairs to the unfinished attic. She attempted to reach the attic window to escape, but it was boarded up and her feet fell through the ceiling. She saw the defendant in the bedroom below. He fired again, missing her. He left to reload the gun and then returned. As he came up the attic stairs, Mrs. Hollis kicked the ceiling down above the master bedroom and jumped into the bedroom, ran to the first floor and out the back door. She fled to the home of a neighbor who refused to help her. She then flagged down Ruth Tracy who was driving down the street. The victim was bleeding heavily from the two gunshot wounds inflicted by defendant. As they were driving to the police station, Mrs. Hollis saw her car had crashed into a utility pole and her husband exiting from the driver's side of the car. Ms. Tracy took the victim to the Cleveland Heights Police Department where Mrs. Hollis reported the crime. She was transported to Huron Road Hospital where she was confined for five days following surgery to repair her fractured jaw. Her mouth was wired shut for three months. She also sustained a gunshot wound to the shoulder. Mrs. Hollis denied having a gun. During her testimony, she testified about an earlier incident on February 20, - 4 - 1995, when defendant threatened to kill her and had hit her in the face with a telephone. Ruth Tracy testified that while driving down Kirkwood Avenue sometime between 11:30 a.m. and 12:00 noon on March 30, she saw a woman in the street asking her to stop. The woman said, "I've been shot. My husband shot me." Ms. Tracy assisted Rosemary and took her to the police station. Ms. Tracy also saw the victim's car involved in a traffic accident as she drove Mrs. Hollis to the police station. Eugene Glanton, Mrs. Hollis' brother, testified that on March 30 defendant called him and said, "Tell your mother I just shot Mary." He testified that he recognized the voice as the defendant's because of the little slur in his speech caused by his stroke. Glanton called the Cleveland Heights Police Department who informed him that they already had officers on the scene. Patrolman Toppin testified that on March 30 he was on patrol in Cleveland Heights when he heard a police radio broadcast dispatching Investigator Rise to 3824 Kirkwood to check on the shooting. Toppin also responded to that location, arriving at the same time as Rise. He saw defendant standing in the front picture window of the house. It appeared that Investigator Rise had a conversation with him through the window. Then defendant raised his left hand, which contained a gun, to his head and fired the gun. Rise went in the home and Toppin through the window saw defendant in a kneeling position on the floor in the dining room - 5 - area. Rise kicked the gun away from the reach of defendant and Toppin called the rescue squad. Toppin and Rise secured the home to protect the crime scene. Cleveland Heights Detective Schmitt also testified that he responded to the crime scene on March 30. First he went to the scene of the traffic accident at Montevista and Cleveland Heights Boulevard, where he interviewed officers, viewed the auto, a red Ford Probe, took photographs and made a video tape of the accident scene. There was no driver present. The car was registered to Rosemary Hollis. Det. Schmitt then went to 3824 Kirkwood and he talked with the officers who had secured the scene. He testified that he processed the crime scene; he photographed the outside and inside of the house; photographed the location of crucial evidence, including the toppled china hutch, fired or spent projectiles, fired shell casings, blood drippings, bullet holes, live rounds on a table, the damage to the ceiling, and a gun. Det. Schmitt also collected the shell casings, live rounds and the gun, and a colt caliber .25 automatic pistol. Det. Schmitt provided testimony of the contents of a video tape of the crime scene on Kirkwood. Det. Schmitt also requested samples from the hands of Rosemary Hollis and John Hollis for the atomic absorption test, which was later taken to the Ohio Bureau of Criminal Investigation for analysis. He later went to Lakeside Hospital to interview defendant. After obtaining permission of the hospital staff, he - 6 - interviewed defendant. Det. Schmitt read defendant his Miranda warnings. The detective made an audio tape of his interview with John Hollis at the hospital after defendant waived his rights. The audio tape was played at trial. Investigator Clayborn testified that he responded to the Hollis' residence and guarded John Hollis while he was transported and hospitalized at Lakeside Hospital. Defendant was under investigation while in custody of the police. While at the hospital, Investigator Clayborn looked through defendant's pockets. The pockets were searched to check for information and to determine if there were any other weapons or anything harmful. Investigator Clayborn located three bullets in defendant's front pants pockets. The bullets, as well as defendant's clothing, were given to the Cleveland Heights Police Department Detective Bureau. Two experts from the Bureau of Criminal Identification and Investigation testified. Michael A. Roberts, a forensic scientist, identified and testified that the Colt .25 semi-automatic pistol submitted by Det. Schmitt uses a magazine containing six bullets with one extra bullet in the chamber. He testified the weapon was operable and that the cartridge casings recovered from the home were all fired from the same weapon. An examination of Rosemary's denim jacket revealed a bullet hole containing lead residue. Jeffrey J. Lynn, also a forensic scientist, testified to the findings on the atomic absorption tests. Jeffrey Lynn was unable to find barium and/or antimony from the swab samples taken from - 7 - defendant's hands, but found the presence of gunshot residue from samples taken from Mrs. Hollis' palms and back of her left hand. Mrs. Hollis testified that after being shot in the face, she grabbed her face and tasted gun powder in her mouth. Defendant testified that Rosemary shot at him while they were upstairs in the house because he would not sign the insurance check. He stated he ran downstairs and hid behind the china cabinet. When she came down, he came from behind the cabinet and they tussled with the gun. He testified that the gun went off several times. Rosemary let go of the gun and the gun hit the dining room table and went off again. Defendant then stated at the time he was not sure whether Rosemary was shot or not. Rosemary Hollis went upstairs after being shot, then came back downstairs and left. Defendant said he drove Rosemary's car to look for her and that he crashed her car into a tree. After crashing the car, he went back home and called Rosemary's brother to tell him to inform his mother that Rosemary had been shot. He said about five minutes later the police came to his house. He had just picked the gun off of the floor and the officer told him to throw the gun down. Defendant claimed that when he threw the gun down it went off and a bullet scraped his head. On cross-examination, defendant denied shooting Rosemary. He also denied that he had threatened to kill her at the Cleveland Clinic Guest House on February 20th. He claimed Rosemary was the one who tried to kill him. - 8 - On rebuttal, Sgt. Houlehan testified to an incident occurring on February 20, 1995, between Rosemary and John Hollis at the Cleveland Clinic Guest House. He was called to the Guest House. He stated he was in the lobby of the Guest House when he observed Rosemary bleeding in a couple areas of her face. At that point, Houlehan detained defendant and as he was putting him into the squad car, defendant yelled in Rosemary's direction that "this was not over" and "the next time I'm going to kill you." Defendant was originally indicted on April 5, 1995 for attempted aggravated murder with a firearm specification and felonious assault with a firearm specification to which he pled not guilty. Prior to the commencement of trial, the court heard defendant's motions to dismiss and to suppress statements, which were overruled. On April 25, 1996, a jury trial commenced in this case and the defendant was eventually convicted of felonious assault with a firearm specification for which he was sentenced. Defendant filed a timely notice of appeal herein. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO DISMISS AS THIS PROSECUTION CAUSED THE DEFENDANT TO BE PLACED TWICE IN JEOPARDY IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. The defendant was originally convicted of domestic violence on March 27, 1995 in the Cleveland Heights Municipal Court. He was on - 9 - probation for that offense when he committed the offenses on March 30. He now argues that his probation revocation hearing and subsequent imposition of sentence in Cleveland Heights presents a double jeopardy bar to the prosecution of the present offenses because they were the subject of the probation violation hearing. Thus, he claims the trial court erred in not dismissing the indictment. A probation violation hearing is distinct from a criminal prosecution. The burden of proof is different. Only "substantial" evidence of a violation must be shown before probation may be revoked. State v. Mingua (1974), 42 Ohio App.2d 35, 40. A criminal prosecution requires proof beyond a reasonable doubt. The Rules of Evidence are relaxed in a probation revocation hearing. In a criminal prosecution they are stringently enforced. Probation is a privilege, not a right, and the hearing held to determine any violation of that privilege is an administrative proceeding. In Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, the Supreme Court held that a probation revocation hearing is not a stage of a criminal prosecution. The court analogized probation revocation to parole revocation in that case. See, also, Morrissey v. Brewer (1972), 408 U.S. 471, 484; State v. Hutchinson (1989), 63 Ohio App.3d 721, 724; State v. Pyles (April 10, 1997), Cuyahoga App. No. 69885, unreported at 7. State v. Boone (March 10, 1994), Cuyahoga App. No. 64924, unreported, is directly on point with the issue raised by - 10 - defendant. The same double jeopardy argument was made in Boone when he was found to be a parole violator and then prosecuted for the drug law violation which was also subject to his parole hearing. Boone next argues that the trial court violated his right not to be placed in double jeopardy by denying his motion to dismiss. Boone claims that the drug possession which formed the basis for his conviction was the subject of a parole violation finding in January of 1992. He argues that his subsequent prosecution for drug possession placed him twice in jeopardy. The parole revocation proceeding was administrative in nature, serving only to determine whether Boone had violated the terms of his parole. The resultant incarceration was not punishment for the drug possession but was merely the reinstatement of the original sentence from which he was paroled. Since jeopardy did not attach at the parole revocation hearing, Boone's prosecution for drug possession did not violate the Double Jeopardy Clause. Boone's third assignment of error is without merit. Id. at 5. The defendant relies on United States v. Dixon (1993), 113 S.Ct. 2849, which refers to criminal contempt of court proceedings raising a double jeopardy bar to a subsequent criminal prosecution. The case pending before this Court, however, involves an administrative proceeding and a criminal prosecution. Defendant's revocation of his parole was not punishment for his felonious assault upon Mrs. Hollis, but was a reinstatement of his original sentence from which he was paroled. See State v. Zanders (Nov. 22, 1995), Summit App. No. 17147, unreported; State ex rel. Smith v. - 11 - Ohio Adult Parole Authority (June 5, 1990), Franklin App. No. 88AP- 565, unreported. The defendant's collateral estoppel argument, likewise, does not bar the prosecution of this case. Collateral estoppel cannot reach indirectly. Collateral estoppel is a principle embodied in double jeopardy. Brown v. Ohio (1977), 432 U.S. 161, citing Ashe v. Swenson (1970), 397 U.S. 436, states it succinctly: *** [Collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties ***. The ultimate fact in the pending case is whether or not, beyond a reasonable doubt, the defendant committed the criminal act he has been charged with committing. The determination in the revocation hearing did not resolve that issue and the collateral estoppel doctrine does not apply. State v. Zanders, supra; State ex rel. Smith v. Ohio Adult Parole Authority, supra; State v. Corbin (June 14, 1982), Cuyahoga App. No. 43606, unreported. Assignment of Error I is overruled. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS EVIDENCE CONCERNING THE WARRANTLESS SEARCH OF HIS HOME. Defendant argues that the trial court erred in not suppressing the evidence obtained by Det. Schmitt during his warrantless search of defendant's home. At the suppression hearing, Det. Schmitt testified that when he arrived at the defendant's home, the defendant was not there as - 12 - he had been already taken away in the ambulance. Det. Schmitt testified that his purpose for going to the scene was to conduct an investigation of the two shootings. He also testified that the officers had already determined that there was no one else on the premises. Upon arrival on the scene, Det. Schmitt proceeded to photograph and videotape the scene and to collect evidence which he stated took in excess of three hours. All of this was done without a search warrant. It is a fundamental tenet of constitutional law that a warrantless search or seizure is, per se, unreasonable and thereby violative of the Fourth Amendment, unless it falls within one of the specifically established exceptions to the warrant requirement. Katz v. United States (1967), 389 U.S. 347, 357; Coolidge v. New Hampshire (1971), 403 U.S. 443, 455. The four exceptions to a warrant requirement which justify a warrantless search of a home are: "(1) an emergency situation, (2) search incident to arrest, (3) `hot pursuit' and (4) easily destroyed or removed evidence." State v. Cheers (1992), 79 Ohio App.3d 322, 325; State v. Bowe (1988), 52 Ohio App.3d 113-114. Based on the evidence presented at the suppression hearing, none of the four exceptions to a search warrant exists in this case. There was no exigent circumstance when Det. Schmitt arrived to conduct his investigation as he testified that the defendant was already taken from the scene and the officers had already - 13 - established that no one else was on the premises. Although the first officers initially gained entrance to the house under this exception when they saw the defendant shoot himself and fall to the ground, the right to search, pursuant to this exception, expired as soon as defendant was no longer in need of aid. See State v. Willoughby (1992), 81 Ohio App.3d 562,568 ("The search must be no broader than necessary to resolve the emergency situation."). Therefore, the "exigent circumstances" exception does not apply. The "search incident to arrest" exception also does not apply. This exception is limited to searching the defendant and the area "within his immediate control" in order to protect the officer's safety and the destruction of evidence. Chimel v. California (1969), 395 U.S. 752, 763; State v. Block (1990), 67 Ohio App.3d 497, 500; Centerville v. Smith (1973), 43 Ohio App.3d 3, 7. In the case herein, defendant was already removed from the premises when the detective arrived on the scene to conduct his investigation. The "hot pursuit" exception does not apply as Det. Schmitt admitted his sole purpose in going to the residence was to investigate the two shootings. He also stated that the defendant was no longer at the residence when he arrived and that the officers had already checked the house for any other victims. The last and final exception of "easily destroyed or removed evidence" does not apply to this situation either as the scene was secured by the Cleveland Heights police officers until the investigation team arrived. Since the scene was secured, the - 14 - detective had the time to procure a search warrant before beginning his investigation Therefore, none of the four exceptions to a warrantless search apply to the case herein. Although the State at the suppression hearing argued that no warrant is needed when investigating a crime scene, there is no such exception to a search warrant. The United States Supreme Court in Mincey v. Arizona (1978), 437 U.S. 384, addressed this issue and found: Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. Coolidge v. New Hampshire, supra at 481, 91 S.Ct., at 2045. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United States v. Chadwick, 433 U.S. 1, 6-11. * * * Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case ***. There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not have easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment would justify a warrantless search. Although none of the exceptions to a warrant applies in the case herein, the trial court's error in denying the defendant's - 15 - motion to suppress was harmless. The Ohio Supreme Court in State v. Brown (1992), 65 Ohio St.3d 483, 485 held: In making a Crim.R. 52(A) harmless error analysis, any error will be deemed harmless if it did not affect the accused's "substantial rights." Otherwise stated, the accused has a constitutional guarantee to a trial free from prejudicial error, not necessarily one free from all error. Before constitutional error can be considered harmless, we must be able to "declare a belief that it was harmless beyond a reasonable doubt." Chapman, supra, 386 U.S. at 24, 87 S.Ct at 828, 17 L.Ed.2d at 711. Where there is no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and there will not be grounds for reversal. State v. Lytle (1976), 48 Ohio App.2d 391, 2 O.O.3d 495, 358 N.E.2d 623, paragraph three of the syllabus, vacated on other grounds in (1978) 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154. * * * "In a criminal prosecution, the allegedly erroneous admission in evidence of items unlawfully seized is harmless beyond a reasonable doubt and does not provide grounds for reversal of the conviction where the pertinent testimony of witnesses at trial is not the product of such seizure and is overwhelmingly sufficient to independently establish the elements of the offense beyond a reasonable doubt." Tabasko, supra, at syllabus. In the case herein, the witness testimony at trial, which was not the product of the seizure of evidence from the home, sufficiently established that the defendant intentionally shot his wife. Rosemary Hollis testified that the defendant shot at her several times hitting her in the jaw and the shoulder. Rosemary's brother testified that the defendant called him and told him that - 16 - he had just shot Rosemary. Finally, Ruth Tracy testified that Rosemary flagged her car down and told her that she was just shot by her husband. Assignment of Error II is overruled. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS DEFENDANT'S STATEMENT GIVEN AT THE HOSPITAL WHILE HE WAS UNDER TREATMENT. Defendant claims he did not understand his rights and did not waive his rights on the grounds that he had four strokes and does not read or write. The Ohio Supreme Court in State v. Dailey (1990) 53 Ohio St.3d 88, 91 held: The inquiry of whether a waiver is coerced has two distinct dimensions. "First, the relinquishment of the right must have been voluntary in the sense it was not the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must be made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran, supra, at 421; Colorado v. Spring (1987), 479 U.S. 564, 573. "Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." Moran, supra, at 422-423. * * * In State v. Edwards, supra, a situation with circumstances similar to those herein, we indicated that the defendant, a twenty-one- year-old high school student with a low I.Q. and a reading capacity at second grade level, - 17 - knowingly and intelligently waived his rights when he indicated that he understood his rights as read to him by the police officer. The State bears the burden of proving by a preponderance of evidence both the voluntariness of a defendant's custodial statements and waiver of Miranda rights. State v. Bobo (1989), 65 Ohio App.3d 685, 689. The trial court is granted broad discretion in determining whether Miranda rights have been knowingly and intelligently waived as the trial court acts as the finder of fact at suppression hearings. State v. Lewis (1992), 78 Ohio App.3d 518, 520; State v. Beam (1991), 77 Ohio App.3d 200,204. Det. Schmitt testified at the suppression hearing that he located defendant at Lakeside Hospital. He received permission from a nursing supervisor to talk with defendant. He read defendant his Miranda rights. The interview, including the waiver of rights, was placed on an audio tape. He read the rights form to defendant and also allowed him to read the rights form. Schmitt testified that defendant appeared to understand his rights; he denied being under the influence of medication; acknowledged that he understood everything; was fully conscious and did not appear in pain; the interview lasted no longer than twenty minutes; when defendant stated he wished to stop the interview, it was terminated. The trial court ruled that there was no evidence that the defendant was under medication or suffering from any injury that impaired his ability to waive his rights and make a statement. - 18 - (Tr. 97). Further, the court stated that there was no evidence presented that defendant could not read or write. Defendant affixed his signature on the waiver of rights form. We will not disturb the court's ruling that defendant voluntarily, intelligently and knowingly waived his rights. The court did not err in denying the motion to suppress the statement. Assignment of Error III is overruled. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS CONCERNING THE SEIZURE OF BULLETS FROM DEFENDANT'S CLOTHING. Defendant asserts that Investigator Clayborn was without authority to seize defendant's personal property without a warrant when he searched defendant's pants pockets at the Lakeside Hospital, recovering three bullets. The State correctly argues that the facts of this case fall within the scope of search incident to arrest, an exception to the warrant requirement. In upholding a warrantless search incident to an arrest, the Court in Chimel v. California, supra at 763, applied the following rationale: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, - 19 - be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. In United States v. Edwards (1974), 415 U.S. 800, the court upheld the police search of defendant's clothing where the clothes had been in the custody of the police for a substantial period of time. Edwards stands for the proposition that once the accused is arrested and is in custody, the property in his possession at the place of detention that was subject to search at the time and place of his arrest may be lawfully searched even though a substantial period of time has elapsed between the arrest and the administrative processing. In the case at bar, the search of defendant's clothing was a search incident to arrest. There is no factual dispute that defendant was arrested prior to his arrival at the hospital. Defendant was in police custody while at his residence at 3824 Kirkwood. Investigator Clayborn testified that because John Hollis was in custody, he was assigned to accompany Hollis from his residence to Lakeside Hospital and stood guard over Hollis at his hospital room. In Edwards, supra, at 803, the court stated: It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention ***. The courts of appeals have followed this same - 20 - rule, holding that both the person and the property in his immediate possession may be searched at the station after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted into evidence. Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial. We therefore find no abuse of discretion in overruling the motion to suppress. Assignment of Error IV is overruled. V. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED EVIDENCE CONCERNING A PRIOR ACT BETWEEN DEFENDANT AND HIS WIFE WHICH WAS NOT CHARGED IN THE INDICTMENT. VI. DEFENDANT WAS DENIED A FAIR TRIAL WHEN HE WAS QUESTIONED UPON A COLLATERAL MATTER INVOLVING ANOTHER INCIDENT AND THE PROSECUTOR WAS ALLOWED TO BRING IN REBUTTAL EVIDENCE CONCERNING THIS COLLATERAL MATTER. Both assignments of error will be addressed together as they concern the admission of evidence of defendant's prior threat to kill Rosemary Hollis. This incident occurred at the Cleveland Clinic Guest House on February 20, 1995, where the defendant and Rosemary Hollis were living due to the fire at their home. Rosemary Hollis testified that the defendant had beat her in the face with a telephone on this date and that while he was in the lobby he threatened to kill her. Sgt. Houlehan of the Cleveland Clinic Department testified on rebuttal, as defendant had testified on his own behalf and denied Rosemary's allegation that he threatened to kill her. Sgt. Houlehan testified that as he was - 21 - placing the defendant into the squad car, defendant yelled in Rosemary's direction that "this was not over" and "the next time I'm going to kill you." Both of the witness' testimony was permitted over defendant's objections. Evidence of other crimes, wrongs or acts committed by the accused is not admissible to show that the accused has a propensity to commit an offense. State v. McCornell (1993), 91 Ohio App.3d 141, 145; State v. Matthews (1984), 14 Ohio App.3d 440, 442. The exceptions to the general rule of inadmissibility are set forth in Evid.R. 404(B) which provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The trial court did not err in allowing this evidence in as defendant's prior threat to kill Mrs. Hollis was properly admitted to prove the "intent" of the defendant and "plan". Intent is only relevant if the statute defining the offense requires a particular intent. State v. Matthews, supra, at 442. The offense of felonious assault requires that a person "knowingly" intends to cause physical harm to another and the offense of aggravated murder requires a person to "purposely" intend to kill another. Therefore, defendant's prior threat goes to the fact that defendant "knowingly" or "purposely" sought to harm Mrs. Hollis and that it was not an accident as defendant contended. The offense of - 22 - attempted aggravated murder also requires proof of prior calculation and design to cause Mrs. Hollis death. The defendant's prior threat was appropriately admitted as it was probative of defendant's plan to kill Mrs. Hollis. The trial court also did not err in allowing the State to call Sgt. Houlehan as a rebuttal witness. Defendant had testified on his own behalf and denied threatening his wife on February 20, 1995. Sgt. Houlehan testified that he did hear defendant threaten Rosemary Hollis. Such impeachment was appropriate, since, as stated above, the prior threat was not a collateral issue. See State v. Jacocks (1990), 64 Ohio App.3d 713 (witness testimony that defendant threatened his sister by mouthing the words, "you know I'm going to kill you" was proper rebuttal testimony after defendant testified on his own behalf and specifically denied threatening his sister). Assignments of Error V and VI are overruled. - 23 - VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REQUIRED THE DEFENDANT TO PROVE HE DID NOT VIOLATE A DUTY TO RETREAT WHEN HE EXERCISED SELF-DEFENSE IN HIS OWN HOME. Defendant argues that the trial court erred in instructing the jury that "defendant must not have violated any duty to retreat or avoid danger" during its instructions on self defense. The Ohio Supreme Court in State v. Thomas (1997), 77 Ohio St.3d 323, syllabus has recently held: There is no duty to retreat from one's own home before resorting to lethal force in self- defense against a co-habitant with an equal right to be in the home. Therefore, it does appear that the trial court did err in its instruction to the jury that a co-habitant has a duty to retreat. However, we find such error not to be reversible error as the evidence did not warrant an instruction on self defense. Instead it appears that an instruction on "accident" would have been more appropriate. Defendant never acknowledged that he fired the weapon and never admitted that he fired the weapon at Ms. Hollis. Defendant testified that they both tussled over the gun and the gun discharged. Implied in his testimony, defendant made it appear that the gun discharged accidentally. Since he was not entitled to a self-defense charge, the duty to retreat was irrelevant. Assignment of Error VII is overruled. - 24 - VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY ON CAUSATION WHICH IN EFFECT MADE DEFENDANT CRIMINALLY LIABLE FOR NEGLIGENCE. Defendant alleges that the court erred when it provided an instruction on foreseeability customarily identified with negligence. The trial court in instructing the jury on felonious assault, stated as follows: Natural Consequences. The causal respon- sibility of the defendant for an unlawful act is not limited to its immediate or most obvious result. He is responsible for the natural, logical and foreseeable results that follow, in the ordinary course of events, from an unlawful act. Defendant cites State v. Burchfield (1993), 66 Ohio St.3d 261 in support of his argument that the trial court erred in giving this instruction. In Burchfield, the court cautioned that standard Ohio Jury Instructions on foreseeability should be given cautiously in future murder cases because of its potential to mislead jurors. Id. at 263. Despite the Supreme Court's comment upon the potential for jury confusion that might result from giving this instruction in murder cases, the Court upheld the appellate court's affirmance of Burchfield's conviction. The Supreme Court held that considering the jury instructions viewed as a whole, the trial court correctly instructed the jury as to the requirement of purpose in the murder charge. Id. at 262. A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. - 25 - State v. Price (1979), 60 Ohio St.2d 136, paragraph four of the syllabus; State v. Baker (1993), 92 Ohio App.3d 516, 536. A reviewing court must consider the whole charge as given rather than separate portions of a charge. State v. Baker, supra. In the present case, the trial court's instructions were taken from 4 Ohio Jury Instructions (1996), Section 503.11, felonious assault. The trial court clearly instructed the jury on the requisite mens rea for felonious assault, which was the statutory definition of "knowingly." See R.C. 2901.22(B). Following the standard jury instructions outlined in the Ohio Jury Instructions, the trial court then instructed on causation. Accordingly, in reviewing the court's jury instructions in their entirety, the trial court did not err in charging the jury on felonious assault. The trial court correctly instructed the jury on the "knowingly" element needed for felonious assault, therefore, the jury could not have been misled or confused that a lesser mens rea than "knowingly" was required. See State v. Baker, supra. Assignment of Error VIII is overruled. IX. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED HIM TO BE CONVICTED ON A DUPLICITOUS INDICTMENT. Defendant alleges that because the court instructed the jury using the phrase "and/or" that the indictment was duplicitous. "Duplicity" as the term is used in regard to criminal charges, is the joinder of two or more distinct offenses in one count. "The term duplicity in its strictest sense applies to the joinder of - 26 - separate and distinct offenses in one and the same count." State v. Johnson (1960), 112 Ohio App. 124, 127. The test of duplicity is whether the proof of one offense will tend to establish guilt of the other. In applying this test, defendant has failed to show that the instructions on felonious assault were duplicitous. Furthermore, defendant has failed to provide case law supporting his contention on this narrow issue. Where a statute states a number of ways disjunctively in which an offense may be committed, and the same punishment is prescribed for the crime regardless of whether it is committed in one or all of the ways named, an indictment may allege conjunctively the offense to have been committed in more than one way. A person who does all of the prohibited acts violates the statute once and incurs only one penalty. State v. Daniels (1959), 169 Ohio St. 87, paragraph three of syllabus; State v. Allen (June 3, 1993), Cuyahoga App. No. 62713; State v. Phenix (Nov. 9, 1995), Ashtabula App. No. 95-A-0018, unreported. In the case at bar, the court did not commit error by reading the felonious assault instruction stating, "*** the defendant knowingly caused serious physical harm and/or knowingly caused or attempted to cause physical harm to Rosemary Hollis by means of a deadly weapon ***." Defendant was convicted and sentenced for only one count of felonious assault. Assignment of Error IX is overruled. - 27 - X. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTION FOR JUDGMENT OF ACQUITTAL WAS OVERRULED AND HIS CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review with regard to the sufficiency of 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. 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.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. - 28 - When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. Based on the testimony of the victim, the record revealed that the husband pulled a gun on her and shot her in the face; pursued her through the house and wounded her again; that he shot himself after these events and admitted his shooting to the victim's brother. Assignment of Error X is overruled. Judgment affirmed. - 29 - 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 Court of Common Pleas 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. BLACKMON, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 of decision by the .