COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70855 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ASHUNTE SMITH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 21, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-327616 JUDGMENT: AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY JOHN R. KOSKO (#0021192) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. (#0015576) 75 Public Square, Suite #1016 Cleveland, Ohio 44113-2098 - 2 - SPELLACY, J.: Defendant-appellant Ashunte Smith ("appellant") appeals from his conviction for two counts of aggravated murder and one count of kidnapping. Appellant assigns the following errors for review: 1. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND PLACED TWICE IN JEOPARDY WHEN HE WAS TRIED FOR THE AGGRAVATED MURDER OF GARY LEWIS AFTER HAVING BEEN CHARGED WITH ASSAULT ON GARY LEWIS AND ACQUITTED IN JUVENILE COURT. (Tr. 7-10) 2. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE PROSECUTOR DO (sic) NOT GO FORWARD CON- CERNING THE WARRANTLESS ARREST OF DEFENDANT IN HIS OWN HOME. (Tr. 27-29). 3. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS. 4. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN ITEMS WERE SEIZED WHICH WERE BEYOND THOSE SPECIFIED IN THE WARRANT. 5. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED SPECULATIVE TESTIMONY FROM THE CORONER CONCERNING THE TIME OF DEATH. (Tr. 92-93, 107-08, 110, 111). 6. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF WILLIAM MARSHALL. (Tr. 319-24, 327). 7. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED CROSS-EXAMINATION OF DEFENDANT WITH AN UNSENT LETTER THAT CONTAINED INFLAMMA- TORY STATEMENTS. (Tr. 422-23, 804, 805, 806, 808, 810, Ex. 93). 8. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN EVIDENCE WAS OFFERED CONCERNING ALLEGED SCIENTIFIC FACTS FROM AN IMPROPER SOURCE. (Tr. 496-97, 501, 502-03, 542, 543). - 3 - 9. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT REFUSED TO GRANT A MISTRIAL BY REASON OF AN OUTBURST BY A WITNESS. (TR. 204, 206). 10. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED THE JURY TO CONVICT THE DEFENDANT FOR THE OFFENSE OF (sic) A DATE OTHER THAN THAT ALLEGED IN THE BILL OF PARTICULARS. (Tr. 71, 76, 180-82, 1018, 1088-89, 1094). 11. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT INSTRUCTED THE JURY TO EVALUATE DEFENDANT'S TESTIMONY IN A MANNER DIFFERENT THAN OTHER WITNESSES. (TR. 1088). 12. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AMENDED THE INDICTMENT BY INSTRUC- TION UPON AIDING AND ABETTING WHERE IT WAS CLAIMED DEFENDANT PERSONALLY COMMITTED THE MURDER. (Tr. 320-22, 1082-84, 1093). 13. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS MOTION FOR JUDGMENT OF ACQUITTAL WAS OVERRULED AND HIS CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. (Tr. 91, 144, 214, 215, 222, 225, 239, 262-63, 269, 273, 274, 307, 331-32, 355, 356, 360, 361, 362, 363, 369, 376, 377, 384-85, 386-87, 388, 390, 412, 641- 42, 949-50. 14. DEFENDANT WAS UNCONSTITUTIONALLY SUBJECTED TO MULTIPLE PUNISHMENTS. (Tr. 111-13). SUPPLEMENTAL ASSIGNMENT OF ERROR DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE JUVENILE COURT FAILED TO CONDUCT AN ACTUAL PHYSICAL EXAMINATION OF APPELLANT AND ISSUE SUFFICIENT FACTUAL FINDINGS TO SUPPORT THE BIND-OVER TO COMMON PLEAS COURT. Finding appellant's fourteenth assignment of error to have merit, the judgment of the trial court is affirmed as modified. I. On April 8, 1995, Warrensville Heights police went to an apartment complex on Dalebridge Road in response to a report that - 4 - children saw what they thought was a body in the creek. The police officers found a male body in the creek next to the Banbury Apartments. No identification was found in the clothing of the deceased although a light tattoo was observed on the left bicep. The tattoo consisted of the letters "REG." A couple of hours after the body was taken to the Cuyahoga County Coroner's Office, Mary Lewis called the coroner's office to inquire about her missing son, Reginald Gary Lewis. Mary Lewis identified the body as being that of her son as did his grandmother. The Warrensville Heights police began investigating the death of Lewis. Based upon that investigation, a search warrant was issued for the home of appellant on April 17, 1995. Police executed the warrant two days later at 7:00 a.m. Police used a battering ram to enter the home after there was no response. Appellant and his two brothers, Will and Rasheen, were secured. A loaded nine millimeter Norinko automatic weapon was found in a cigar box in appellant's bedroom. Appellant and Will were arrested for the kidnapping of Lewis. Police arrested Rasheen on an outstanding warrant. On April 24, 1995, two complaints were filed in juvenile court against the then fifteen-year old appellant. One complaint was for the kidnapping of Lewis and the second was for assaulting Lewis. On June 6, 1995, juvenile court held a probable cause hearing on the matter. On June 15, 1995, a new complaint alleging aggravated murder was filed. Juvenile court found probable cause for the kidnapping and aggravated murder complaints. The assault charge, a - 5 - misdemeanor offense, was held in abeyance and eventually dismissed. Juvenile court determined appellant was not amenable to care or rehabilitation within the juvenile court system and transferred jurisdiction of appellant's case to common pleas court. Appellant was indicted for aggravated murder with prior calculation and design, in violation of R.C. 2903.01(A); aggravated murder while committing a felony, in violation of R.C. 2903.01(B); and kidnapping in violation of R.C. 2905.01. All three counts contained a firearm specification. Trial commenced on May 14, 1996. The state presented its case-in-chief. Lewis died from two bullet wounds to the back of the head. He also had blunt force injuries to his head, trunk, and extremities. DNA, consistent with that of the victim, was discovered at the home of appellant's cousin, William Marshall. This was the scene of the murder. Blood of the same type and enzyme pattern as Lewis's was found in the basement of Marshall's residence. A flattened nine-millimeter bullet which was found at the scene had the same characteristics as the rifling in a Norinco automatic. It could not be determined if the gun confiscated from appellant's bedroom fired the bullet. Seventeen-year old Shenelle Owens testified she was at home on March 28, 1995. Owens went outside around noon and saw Lewis sitting on the front porch with Owens' Uncle Darryl. Owens' cousin Will Holt and a friend named Monte stopped their car in front of the Owens' home. The two asked Owens to join them in the car to smoke marijuana. While the three were so engaged, Scott LaRoc, a - 6 - person from the neighborhood, saw Lewis on the porch. LaRoc grabbed Lewis from his place on the porch and began striking Lewis with his fists. Apparently, LaRoc was angry over some narcotics sold to him by Lewis. After about five minutes, the altercation ended. LaRoc left and Lewis resumed his position on the porch. Owens observed a large bump on the head of Lewis as well as several scrapes. About twenty minutes later, Owens saw appellant and his brother Will driving down the street in a white car. Owens called to the Smiths. They left their car and joined Owens and her companions in the parked car. All proceeded to smoke marijuana. Two cohorts of the Smiths known as Digger and Rasheen also were present. Will Smith inquired of Monte if Lewis was the person who had shot William Marshall, a cousin of the Smiths, in an earlier incident. Owens and the Smiths got out of the car and began a melee with Lewis. Owens claimed she struck Lewis because he was in her yard and she wanted him to leave. During the fight, Lewis said he had not shot the Smiths' cousin but he knew who did. At one point, Lewis ran down the street to another home but was pursued by the Smiths. Lewis kept screaming he did not shoot their cousin and asked to be taken to the cousin. Appellant stated he was going to take Lewis to his cousin. Lewis either entered the white car the Smiths arrived in or was shoved into the car. Will Smith, appellant, Lewis, Digger and Rasheen all left in the white car. Later that day, Owens saw appellant at the store and asked him what - 7 - happened to Lewis. Appellant replied they dropped him off far, far away. Owens never saw Lewis after that date. Upon cross-examination, Owens admitted she was unsure of the date of the occurrence but had said March 28th based on information told to her by the police. Owens also stated she did not like the Smith family as she thought Will helped convict Owens' brother of murder. Traci Watson, the next-door neighbor of Owens, testified she called 911 on March 28, 1995, at around l:00 p.m. due to a lot of yelling and screaming coming from the front yard of the Owens' home. By the end of the phone call, the commotion ceased and Watson told the dispatcher the people were gone. Watson hung up and looked out of the window. She observed a male being shoved into a white car. Watson stated she knew the call was made on March 28. A Cleveland Police Dispatcher confirmed that a 911 call was received from Watson's residence at 1:11 p.m. on March 28, 1995. Seventeen-year old William Marshall testified he is the cousin of appellant. Marshall had been shot by an unknown, masked assail- ant in February in an apparent robbery attempt. The rumors in the neighborhood were that a person named Reggie was responsible. On March 28, 1995, Marshall left school at 12:30 p.m. after getting into a fight. He was charged with felonious assault the next day because of this fight. Marshall arrived at his home on East 131st Street at about 1:30 p.m. Marshall lived at the house with his grandmother. No one was else was in the home when - 8 - Marshall arrived. Soon after, the doorbell rang and Marshall opened the door to discover appellant and Will Smith. They asked Marshall where Grandma was and he replied she was not there. The Smiths informed Marshall that they had the boy who shot him in the car. A white car was parked in the driveway near the side door. A man was in the car. Will and appellant entered the house and asked Marshall to get something with which to tie the man. The Smiths then told the person in the car to come into the house. A tall, skinny man walked inside. Marshall had never before seen this person. Marshall later identified the person as Lewis. The Smiths escorted Lewis into the basement. Marshall brought an extension cord to the basement. Lewis was tied to a pole in the basement. Marshall told his cousins he did not know who was responsible for the shooting. The Smiths said Lewis was the person as that was what everyone said in the neighborhood. Marshall went upstairs to answer the telephone. After speaking with his grandmother, Marshall returned to the basement and told his cousins their grandmother was on her way home and to do whatever they were going to do. Will said they were going to do him then and pulled a gun from the side of his pants. Will told Marshall to stand by the sidedoor to make sure no one came. Marshall complied. While standing at the door, Marshall heard the victim pleading that he didn't do it. Two shots were fired. The two shots were approximately five to ten seconds apart. Marshall - 9 - looked down the steps and saw appellant holding the gun. Lewis lay on the ground, dead. Marshall was told to get something in which to wrap the victim. Marshall retrieved a blanket and helped carry Lewis up the stairs and assisted in putting the body in the white car's trunk. The Smiths drove away while Marshall cleaned up the basement. The police arrested Marshall and charged him with the murder of Lewis. Marshall gave a statement to the police in exchange for an agreement. Marshall would not be bound over for trial as an adult and would testify at the trials of his two cousins. Marshall would be released a year after pleading to complicity to involun- tary manslaughter in juvenile court. Appellant testified in his defense. Appellant stated that on the day in question, he was riding in a car driven by his brother. Rasheen and Digger were with them. Shenelle Owens flagged them down and told them to look at Lewis as he had just been beaten. They joined Owens, her cousin, and Monte in a car parked on the street. Owens stated she was tired of Lewis being on her porch. Owens exited the car and went up to Lewis and swung at him with her fist. Owens struck Lewis several times. When it appeared as if Lewis was trying to grab Owens, they all got out of the car. Will Smith and appellant began hitting Lewis. None of the others became involved in the fight but were yelling and making noise. Lewis stated he was not the guy who shot their cousin and asked to be taken to their cousin. Lewis willingly entered their car. They drove to Banbury Estates, an apartment complex in - 10 - Warrensville Heights. There, they met another Smith cousin, Shawn Laney, and his friend Ronnie Johnson. Laney and Johnson were in the parking lot sitting on Johnson's truck. Appellant then rode in the truck with Laney and Johnson. They all went to the home of appellant's aunt. Appellant left with Will Smith, Digger and Rasheen. The last time appellant saw Lewis, he was getting into the truck with Laney and Johnson. While at the detention home, appellant spoke with Marshall. Marshall related that Laney and Johnson brought Lewis to Marshall's home and went down into the basement. Marshall went upstairs and retrieved his gun. He returned to the basement and began hitting Lewis with his gun. Laney eventually said he was tired of playing. Marshall gave Laney the gun. Laney shot Lewis in the head. Marshall grabbed the gun from Laney and also shot Lewis in the head. Laney and Johnson took the body. Marshall did not go with them. The defense presented testimony from appellant's aunt and uncle to support appellant's version of the events. Both testified the boys were at their home that day and that Marshall admitted he had shot Lewis. Rasheen Bledsoe and his brother Clarence Brown ("Digger") also testified that Lewis was last seen with Laney and Johnson. The state presented the rebuttal testimony of police Detective Donald Spera who took the first oral statement from appellant. In the statement, appellant related they spotted Lewis, beat him and - 11 - drove around with Lewis. Eventually, they stopped the car, gave Lewis $50 and let him go. The jury found appellant guilty of all three counts in the indictment. II. In his first assignment of error, appellant contends he was placed in jeopardy twice during the proceedings below. Appellant argues that the dismissal of the assault charge by the juvenile court foreclosed any further proceedings based on the same events, including his trial for aggravated murder. Appellant's stance is that juvenile court held a trial on the assault charge and subsequently dismissed the charge. That dismissal was a deter- mination of a factual issue which would preclude any further prosecution as appellant would be placed in jeopardy twice. Whenever a complaint is filed alleging a child is delinquent for committing what would be a felony offense, if committed by an adult, a juvenile court must hold a preliminary hearing to determine whether probable cause is present before transferring jurisdiction to the appropriate court. Juv.R. 30(A); R.C. 2151.26. Juvenile court may transfer the proceedings to the court of common pleas if it finds reasonable grounds that the child is not amenable to care or rehabilitation in the juvenile court system and that the safety of the community requires the child to be placed under legal restraint beyond the child's majority. Juv.R. 30(C). If a proceeding is terminated before jeopardy attaches, the accused is not entitled to relief under the Double Jeopardy Clause. - 12 - State v. Larabee (1994), 69 Ohio St.3d 357, paragraph one of the syllabus. A court proceeding which may result in incarceration places a person, adult or juvenile, in jeopardy. In re Gilbert (1974), 45 Ohio App.2d 308. Where a proceeding is terminated for a reason other than a finding that the state's case is factually in- sufficient based on the evidence presented or a determination the defendant is innocent, double jeopardy is inapplicable. State v. Calhoun (1985), 18 Ohio St.3d 373. A pretrial dismissal of an indictment does not result in double jeopardy as there is no risk of a determination of guilt. Such a dismissal is not the func- tional equivalent of an acquittal on the merits as an accused must suffer jeopardy before jeopardy can attach. Serfass v. United States (1975), 420 U.S. 377. A dismissal of a complaint against a juvenile after a finding that the allegations of the complaint were not proved does result in the attachment of jeopardy as the child's liberty was at risk. State v. Penrod (1989), 62 Ohio App.3d 720. Jeopardy does not attach to a probable cause determination made at a Juv.R. 30 preliminary hearing. See Breed v. Jones (1975), 421 U.S. 519. The sole issue before the juvenile court is to determine if there is probable cause to believe that a child fifteen or more years of age committed the act alleged and that such act would be a felony if committed by an adult. Juv.R. 30(A). The introduction of evidence of probable cause to believe the juvenile committed the alleged offense does not transform a probable cause hearing into an adjudicatory proceeding. Keener v. Taylor, 640 F.2d 839 (6th Cir. 1981). - 13 - The proceeding held before the juvenile clearly was a probable cause hearing and not a factual determination regarding the allegations of the complaint. Juvenile court determined appellant was fifteen years old at the time of the conduct charged and that there was probable cause to believe appellant committed the acts charged in the complaint. A complaint alleging an assault by appellant against Lewis was dismissed because it was a misdemeanor offense. As such, appellant could not be tried as an adult on that offense. Contrary to appellant's assertion, there was not a factual determination on this issue. Appellant was not found innocent of the charge. Rather, this allegation was dismissed in order to effectuate the bind-over of appellant. Appellant was never placed in jeopardy of incarceration for the assault charge as there was no adjudicatory hearing. The juvenile court determined whether probable cause was present and whether appellant was amenable to rehabilitation within the juvenile system and nothing more. The dismissal was not the equivalent of an acquittal on the merits. Jeopardy never attached. Appellant's first assignment of error is meritless. III. Appellant's second assignment of error challenges the validity of his arrest. Police officers entered appellant's home pursuant to a search warrant and proceeded to arrest appellant. No arrest warrant had been obtained prior to the entry into appellant's residence. Appellant asserts the police illegally entered appellant's home in order to arrest him as both probable cause and - 14 - exigent circumstances were lacking. Appellant argues any evidence derived as a result of his illegal arrest must be suppressed. The standard and procedure for a valid arrest have been derived from the Fourth Amendment and its common-law antecedents. Gerstein v. Pugh (1975), 420 U.S. 103. That standard is probable cause which is defined in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio (1964), 379 U.S. 89, 91. The lack of a warrant for an arrest, without more, will not invalidate an arrest supported by probable cause. Gerstein, supra, at 113. It is unconstitutional for the police to make a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest absent exigent circumstances. Payton v. New York (1980), 445 U.S. 573. The reason for the holding in Payton was to protect the suspect's home from entry in the absence of a magistrate's finding of probable cause, not to protect the person of the suspect. Minnesota v. Olson (1990), 495 U.S. 91. In the instant case, the police entered appellant's home by way of a search warrant. No arrest warrant had been sought by police. The differences between the two warrants were set forth in Steagald v. United States (1981), 451 U.S. 204, 212-213: The purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search. *** However, while an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests - 15 - protected by the two warrants differ. An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure. A search warrant, in contrast, is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual's interest in the privacy of his home and possessions against the unjustified intrusion of the police. Therefore, if police have a valid search warrant, the arrest of a suspect in his home where probable cause is present is constitutional. This court upheld a similar arrest in State v. Bobo (1989), 65 Ohio App.3d 685, after pointing out that a search warrant carries with it the limited authority to detain occupants of the premises while a proper search is executed, establishing probable cause to arrest. The Third District Court of Appeals rejected the same argument appellant presents in State v. Dougherty (Sept. 12, 1996), Hancock App. No. 5-94-2, unreported. At the time of appellant's arrest,the police had information from Shenelle Owens that appellant and his brother forced Lewis into their car on March 28, 1995. That information was confirmed by Owen's neighbor, Traci Watson, who observed a man being shoved into a car matching the one Owens stated was driven by the Smiths that day. The police had recovered Lewis's body. There was probable cause for the police to believe appellant was involved in the abduction and murder of Lewis. As probable cause existed, appellant's arrest was legal although police entered appellant's - 16 - home without an arrest warrant. The search warrant permitted the police to be legally on the property. Appellant's second assignment of error is meritless. IV. In his third assignment of error, appellant contends the trial court erred in overruling his motion to suppress as the affidavit supporting the search warrant was insufficient. Appellant asserts the search warrant was a general warrant which was unsupported by probable cause. Crim.R. 41(C) sets forth the standard for issuing search warrants, and provides in part: A warrant shall issue under this rule only on an affidavit or affidavits sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. The affidavit shall name or describe the person to be searched or particularly describe the place to be searched, name or describe the property to be searched for and seized, state substantial- ly the offense in relation thereto, and state the factual basis for the affiant's belief that such property is there located. If the judge is satisfied that probable cause for the search exists, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the informa- tion furnished. In Illinois v. Gates (1983), 462 U.S. 213, the United States Supreme Court instructed magistrates to utilize a totality-of-the circumstances approach when assessing whether probable cause exists to issue a search warrant. The magistrate is: - 17 - [T]o make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for *** conclud[ing]" that probable cause existed. Jones v. United States, 362 U.S., at 271. Id. at 238-239. The court noted that a probable cause determina- tion is a practical, nontechnical conception which deals with probabilities. The concept is fluid turning on the particular factual contexts which are not readily, or usefully, reduced to a neat set of legal rules. Id. at 231-232. A reviewing court is not to conduct a de novo review but is to accord great deference to the magistrate's determination of probable cause. If the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirements of the Fourth Amendment have been met. Id. at 236. However, sufficient information must be presented to the magistrate to allow the magistrate to determine probable cause. The search warrant cannot be a mere ratification of the bare conclusions of others. Reviewing courts must be sure the affidavits upon which the warrants are issued are sufficient. Id. at 239. The validity of a search warrant must be determined solely from the contents of the affidavit. State v. Yanowitz (1980), 67 Ohio App.2d 141, 144. A reviewing court may draw reasonable, common-sense inferences from the facts alleged in the affidavit. - 18 - State v. Bean (1983), 13 Ohio App.3d 69, 72. However, other facts beyond those in the affidavit may not be inferred as gap-fillers to bolster a probable cause determination. Id. at 73. The affidavit in question set forth the following facts: Affiant states that in his experience and with the facts above stated, he believes that there is probable cause to believe that persons at the above described premises are and have been engaged in violation of the laws of the State of Ohio, specifically Revised Code Section 2903.01. On April 8, 1995, the body of Gary Lewis was found in the Dale Bridge Apartment complex in Warrensville Heights. The body was located in a drainage ditch in the complex. The body was identified at the county coroner's office by the victim's mother. No identification was on the body. The victim died of gunshot wounds and the death was ruled a homicide. Affiant learned from an interview with a female that Gary Lewis was abducted by Ashunte Smith and Will Smith, who live at the above described premises, from the vicinity of 12013 Lenacrave Avenue, Cleveland, Ohio. The female learned that the abduction was in connection with a shooting that had occurred in February 1995 and involved the suspects' cousin. A second neighbor had also informed affiant that two black males were seen beating and then abducting the victim. The males took the victim away from the area in a white sports car. One of the witnesses was later able to identify the suspects from having known the suspects in the past. Affiant further learned that the victim's mother had received phone calls over a period of several days that she should look at the county coroner's office for her son. Mrs. - 19 - Lewis reported her son missing on April 1, 1995, to the Cleveland Police Department. Affiant has subsequently learned that both of the suspects have previous arrests and have listed the above described premises as their residence address. To date, the murder weapon and victim's personal property have not been recovered. Affiant states that based upon his training and experience in investigating homicides, and based upon the information received and evidence located in this case, he has reason to believe that the above described items are located in the above described premises as well as trace evidence as to the abduction and murder of the victim. Appellant argues the unknown and anonymous female is not corroborated in any way and her statement cannot serve as a basis for the issuance of a search warrant. Appellant then cites to several cases involving anonymous tips. These cases are not determinative of this case as no anonymous tip is present. Rather, the unnamed female was an eyewitness to the victim's abduction from Lenacrave Avenue and an apparent motive for the abduction is given. The abduction is confirmed by yet another eyewitness. The suspects are identified as appellant and his brother. This identification is based upon prior knowledge of both men. Unlike information from a confidential or anonymous informant repeating hearsay information to police in the form of a tip, information from a citizen eyewitness is presumed credible and reliable. It supplies a basis for a finding of probable cause in compliance with Gates. State v. Garner (1995), 74 Ohio St.3d 49. The statements of the two eyewitnesses are sufficient facts to show appellant was involved in - 20 - abducting the victim. These are not conclusory "bare bones" statements but are based on the personal observations of witnesses. Appellant argues the search warrant was improperly issued because there was nothing to indicate any evidence of the crime would be found on the premises identified in the warrant. Appellant points out there is nothing in the affidavit connecting the allegations to appellant's residence. The affidavit states the body of the victim was discovered on April 8, 1995, in Warrensville Heights. It further states appellant and his brother, residents of the place to be searched, were seen abducting the victim. The murder weapon and the victim's personal property had not been discovered. Few places are more convenient for hiding the fruits or evidence of a crime than one's residence. See State v. Cooey (1989), 46 Ohio St.3d 20. It is true there are no allegations Lewis was murdered at appellant's home. However, an inference can be drawn from the kidnapping of Lewis and the later discovery of his body that the murder weapon, missing personal property and other trace evidence easily could be concealed in the residence of the two alleged murderers. Further, the time period between the discovery of the body on April 8, 1995, and the issuance of the warrant on April 17, 1995, was sufficiently close to justify a belief evidence of the crime still would be present at appellant's residence. See State v. Yanowitz (1980), 67 Ohio App.2d 141. Appellant next argues the search was overly broad and amounted to a general search. The warrant authorized the seizure of - 21 - weapons, body fluids, fingerprints, fabric and fiber samples, and the personal property of the victim. Appellant maintains that, aside from a weapon, none of the other items were seized. However, what evidence ultimately was seized has no bearing on the validity of the warrant itself. That is a separate issue. The warrant itself must be analyzed based on the information presented to the magistrate. The items to be seized are to be stated with sufficient particularity. State v. McGettrick (1988), 40 Ohio App.3d 25. The requisite specificity varies with the nature of the items to be seized. The key inquiry is whether the warrants could reasonably have described the items more precisely. State v. Benner (1988), 40 Ohio St.3d 301, 307. The items identified by the warrant would all be connected to the investigation of a murder. The police normally look for the weapon and evidence such as fingerprints, body fluids, and fabric or fiber samples. The evidence was sufficiently identified. Appellant argues the affidavit was misleading as no body was found at appellant's home. However, this argument is specious. The affidavit clearly states where the victim's body was found. There is no allegation the murder took place in appellant's home. Rather, because it was the residence of both of the alleged suspects, it was expected evidence related to the murder would be present on the premises. Appellant's third assignment of error is overruled. V. - 22 - Appellant's fourth assignment of error asserts certain items taken during the search of his home exceeded the scope of the warrant. All but one of the items were never introduced at trial and yielded no evidence against appellant. Therefore, appellant was not prejudiced by the seizure of that evidence. Accord State v. Cooey (1989), 46 Ohio St.3d 20. The only item used at trial was a letter written by appellant to William Marshall. The letter was not mailed. The prosecution used the letter in its cross- examination of appellant. The letter was not used in the state's case-in-chief against appellant and, therefore, the exclusionary rule is inapplicable. See United States v. Leon (1984), 468 U.S. 897. Appellant's fourth assignment of error is not well taken. VI. In his fifth assignment of error, appellant argues he was denied due process because the coroner's testimony regarding the time of Lewis's death was speculative. The coroner testified that the time of death occurring eleven days prior to the body being discovered was consistent with the range of the time of death. In State v. D'Ambrosio (1993), 67 Ohio St.3d 185, the coroner testified that it was physically possible for wounds to have been made by the knife the state presented as the murder weapon. The Supreme Court found no error in the admission of this testimony holding that experts could testify in terms of possibility. Evid.R. 702 allows expert opinion that "will assist the trier of fact to understand the evidence or to determine a fact in issue." - 23 - Here, Dr. Balraj's testimony helped the trier of fact to understand that, despite contrary appearances, the size of the wound was consistent with the size and shape of State's Exhibit 8A. Id., at 191. D'Ambrosio was cited and followed in State v. Allen (1995), 73 Ohio St.3d 626. In Allen, a trace-evidence examiner testified that items burned in a fireplace could have had blood on them and that it was possible that a black substance found on the bottom of the defendant's shoes was ash. The Supreme Court found no error in the admission of the testimony as the witness did not provide an improper opinion that blood was on the burned items but only that the possibility that blood could have been on the items could not be ruled out. Further, the witness did not state ash was found on the shoes but that the possibility could not be ruled out. In the instant case, the deputy coroner testified that an opinion based on a reasonable degree of medical certainty was difficult to arrive at, but that eleven days would have been in the range of the time of death. On cross-examination, the deputy coroner admitted it was possible Lewis could have died at an earlier date. It depended on the environment in which the body was kept. The time of death could be consistent with a whole variety of possibilities. The deputy coroner never stated Lewis died eleven days before his body was found. As in D'Ambrosio and Lewis, the testimony was that it was possible. Therefore, the evidence was properly admitted at trial. - 24 - Appellant's fifth assignment of error lacks merit. VII. In his sixth assignment of error, appellant contends the prosecutor improperly vouched for the credibility of William Marshall during closing argument. Appellant points to the prosecutor's statement that Marshall's deal included telling the truth. Appellant asserts this argument was improper witness vouching by the prosecutor necessitating a new trial. A prosecuting attorney's conduct during trial does not constitute a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219. The effect of the prosecutor's alleged misconduct must be considered in light of the whole trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266. The remarks to which appellant objects occurred during closing argument. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. A prosecutor is afforded wide latitude in closing arguments. State v. Jacks (1989), 63 Ohio App.3d 200, 210. It is within the trial court's sound discretion to determine if a prosecutor has gone beyond the bounds permitted. State v. Benge (1996), 75 Ohio St.3d 136. A - 25 - judgment will not be reversed if it is clear beyond a reasonable doubt that, absent the prosecutor's remarks, the jury would have found the defendant guilty. State v. Loza (1994), 71 Ohio St.3d 61, 78. A prosecutor can bolster his own witness by stating the evidence will show the witness was truthful. The prosecutor may not say he believes the witness by personally vouching for the integrity of the state's witness. State v. Daughn (1992), 76 Ohio App.3d 664, 670. If such remarks do occur, a judgment will be reversed only if the defendant is deprived of a fair trial due to the statements. Apanovitch, supra, at 24. During closing argument, defense counsel addressed the issue of William Marshall's believability as a witness by pointing out how much Marshall had to gain in this case. Defense counsel argued Marshall pled guilty to receive a sentence of one year. Appel- lant's attorney continued his argument by stating: That just doesn't make sense in this particular case as to why it would do that, but it makes sense for William Marshall to lay the blame on someone else. He doesn't want to face 30 to life. He knows that they're talking about, well, you're going to get 30 to life. Well, why would anybody would (sic) say anything to avoid getting 30 to life if all you're going to have to do is a year in a juvenile detention center and get out in a year when you're the one and you can lay it on somebody else in this particular case. You know, you sell out anybody. He'll probably sell out -- well, he didn't have a mother --he probably would sell out his grandmother to avoid 30 to life to get a year in a case and be free of the -- free of anything in this case. (Tr. 986). - 26 - In response, the prosecutor acknowledged the deal Marshall made in regard to this case and that Marshall was an accomplice in the murder. The prosecutor then pointed out the portions of Marshall's testimony that could be corroborated by other evidence. The prosecutor stated that Marshall would receive a deal if he told the truth and that there would be no deal if Marshall was caught lying. Marshall received the plea bargain as an incentive to come forward. Defense counsel argued Marshall was lying to protect himself. The prosecutor then attempted to rebut the contentions of the defense. Both the state and defense have latitude in responding to the arguments of opposing counsel. Loza, supra, at 78. The prosecutor never personally vouched for Marshall's veracity but pointed out the terms of Marshall's agreement with the state. The prosecutor's argument was not improper but appropriate advocacy in response to the position of the defense. Appellant's sixth assignment of error is not well-taken. VIII. In his seventh assignment of error, appellant objects to the prosecutor's use of a letter to cross-examine appellant. The unmailed letter was written by appellant to William Marshall while Marshall was confined in the detention center for felonious assault. Appellant admitted being the author of the letter in which appellant wrote he took the blame for the shooting of Marshall. At trial, appellant explained he was around the corner at the time of the shooting. Members of appellant's family blamed - 27 - him for the shooting as appellant brought Marshall into the neighborhood prior to the incident. In addition to numerous profanities, the letter also stated that now they had pistols, they could not be stopped. Appellant could not explain the statement. Appellant argues the letter was irrelevant to the issues in dispute at trial and was inflammatory due to the language and statements used. Appellant asserts the use of the letter exceeded permissible cross-examination as it discredited appellant's reputation beyond that of his truth and veracity. Cross-examination is permitted on all relevant matters and matters affecting credibility. Evid.R. 611(B). Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Generally, cross-examination may embrace matters pertaining to direct examination even if not necessarily admissible. State v. Litz (1982), 8 Ohio App.3d 321. A trial court enjoys broad discretion in the admission and exclusion of evidence. That decision will not be reversed absent a clear abuse of discretion which materially prejudices the objecting party. State v. McCray (1995), 103 Ohio App.3d 109. During direct examination, appellant testified he was not going to take any action whatsoever in regard to the shooting of Marshall. Lewis did not shoot appellant or any member of appellant's immediate family. Under cross-examination, appellant - 28 - further stated Marshall's shooting was not appellant's situation to solve and appellant did not care if Lewis was responsible. The letter constituted evidence which contradicted appellant's testimony regarding his feelings toward Marshall's shooting. It tended to show appellant did have a motive and intent to harm Lewis as revenge for the shooting of Marshall. As such, the letter was admissible under Evid.R. 404(B). The letter also contradicted appellant's testimony that he did not have a weapon. In the letter, appellant wrote "we got pistols." This statement is evidence which places a weapon in appellant's possession shortly before the time of the shooting. Cf. State v. Parrish (1991), 71 Ohio App.3d 659. Therefore, the letter was relevant evidence and a proper subject of cross-examination as it related to appellant's intent, motive, and access to a firearm. The trial court did not abuse its discretion by permitting the state to use the letter in its cross-examination of appellant. Appellant's seventh assignment of error is overruled. IX. In his eighth assignment of error, appellant challenges the testimony of two of the state's expert witnesses as being based on statistics or studies from a source other than the personal knowledge of the expert. Linda Luke, supervisor of serology for the Cuyahoga County Coroner's Trace Evidence Department, conducted DNA analysis of blood samples taken from the Marshall home. In order to do a statistical analysis of what percentage of a population has the same genetic markers as the samples, Luke relied - 29 - on charts prepared by either the FBI or the Roache Diagnostic Company. On cross-examination, Luke confirmed that the statistics were not her own but that she has compared the statistics to her own records and found them to be consistent. Another witness, Kay May, a co-worker of Luke's in the Trace Evidence Department, testified during cross-examination regarding what percentage of the African-American population has a certain blood type. That information was based on a compilation of various reports and is accepted by the FBI. May stated that her department periodically takes a section of their testing and compares it to the guideline. Evid.R. 703 states: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. See also State v. Chapin (1981), 67 Ohio St.2d 437, paragraph two of the syllabus. Appellant relies on State v. Robles (1989), 65 Ohio App.3d 104, to support his argument. In Robles, the Sandusky Court of Appeals held that the testimony of an expert witness as to the percentage of the population having the same enzyme factors as found in the victim's blood was improperly admitted. The testimony was based in part on population frequencies taken from an FBI study. That report was not produced at trial. The court held the expert's conclusions were based in part upon facts which were not within his personal knowledge or in evidence. The exhibit entered into evidence which the expert claimed set forth statistics taken from an FBI report was improperly admitted. - 30 - The portion of May's testimony which was based on reports accepted by the FBI was immaterial to the case. The information came out during cross-examination. May never related that testi- mony directly to appellant as in Robles. The testimony of Luke did rely on the statistics from the FBI or Roache Diagnostic. However, Luke independently confirmed those statistics with information within her own knowledge. Her opinion was based upon information which was perceived by Luke. See State v. Solomon (1991), 59 Ohio St.3d 124. The trial court did not err in permitting her testimony. Appellant's eighth assignment of error is overruled. X. Appellant's ninth assignment of error asserts he was denied a fair trial because the trial court refused to grant a mistrial following the outburst of the victim's mother. Mary Lewis identified her son at the coroner's office. At trial, the state showed Mary Lewis a picture of her dead son. The following exchange took place: Q. Okay. Ms. Lewis, showing you what's been previously marked at State's Exhibit 6. Can you describe what that is? Take your time. Take your time. A. Okay. Q. Did you get a chance to look at that picture? A. No, I just saw him laying there. Q. Can you describe what was in that picture? - 31 - A. Um-hum. Oh, my baby. Oh, my baby. Oh my baby. Q. Take your time. A. Oh my God, My baby. Who did some shit like this to my baby. My God. Who did my baby like that. (Tr. 204). Thereafter, the state and defense stipulated that the body in the autopsy report was that of Reginald Gary Lewis. Defense counsel stated a mistrial ought to be declared. The trial court stated if that was a motion for a mistrial, it was denied. A mistrial should not be declared in a criminal case merely because some error or irregularity has occurred unless the substantial rights of the accused or the state have been adversely affected. State v. Reynolds (1988), 49 Ohio App.3d 27. The decision of whether or not to grant a mistrial is within the sound discretion of the trial court. State v. Rivera (1994), 99 Ohio App.3d 325. An abuse of discretion is more than an error of law or of judgment. Rather, it must be shown that the trial court's attitude was unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413. A reviewing court grants great deference to the trial court's discretion in this area as the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial. State v. Glover (1988), 35 Ohio St.3d 18. In State v. Morales (1987), 32 Ohio St.3d 252, the court re- affirmed the standard set forth in State v. Bradley (1965), 3 Ohio St.2d 38, regarding an emotional outburst during a murder trial by - 32 - a spectator related to a victim and its impact on a jury. Whether an emotional demonstration in the courtroom during the course of a murder trial by a spectator related to the victim improper- ly influences the jury against the accused [,] *** constitute[s] misconduct so as to deprive the accused of a fair trial *** [is a ques- tion] of fact to be resolved by the trial court, whose determination will not be dis- turbed on review in the absence of evidence contrary to that determination clearly and affirmatively appearing on the face of the record. Id., at 255, quoting State v. Bradley (1965), 3 Ohio St.2d 38, syllabus. Unless there is clear evidence in the record showing the outburst affected the jury, only the trial judge can determine whether the jury was disturbed, alarmed, shocked or moved by the incident or whether the outburst was of such a nature that it necessarily influenced the verdict. Id. The trial court determines, as a question of fact, whether the demonstration deprived the defendant of a fair trial by improperly influencing the jury. In the absence of clear, affirmative evidence to the contrary, the trial court's decision will not be disturbed. Id. In State v. Jacks (1989), 63 Ohio App.3d 200, this court applied the holding of Morales following an outburst by the victim's mother during the defendant's testimony. The mother stated the defendant was lying. The trial court correctly declined to declare a mistrial as there was no clear, affirmative evidence the outburst deprived the defendant of a fair trial. Although in the instant case the outburst was from a witness and not a spectator, there is no reason not to apply the same - 33 - standard. The witness was a relative of the victim as in the other cases. Mrs. Lewis did not accuse appellant of the killing but asked who did this to her child. There is no clear evidence the jury's verdict was influenced by the outburst. The trial court determined a mistrial was not called for due to the incident. That decision will not be disturbed upon appeal. Appellant's ninth assignment of error lacks merit. XI. In his tenth assignment of error, appellant contends the trial court erred by instructing the jury that it could convict appellant for the offense on a date other than that alleged in the Bill of Particulars. The portion of the charge to which appellant objects is as follows: The dates -- the date the offenses in this indictment allegedly occurred has previously been stated. It is not necessary that the state prove that the offenses were committed on the exact day as charged in the indictment. It is sufficient to prove that the offenses took place on a date reasonably near the date claim (sic). (Tr. 1088-1089). Appellant claims the date of death was crucial because the state's case was built upon a date of March 28, 1995, as the day the offense occurred. Appellant asserts the trial court's charge constructively amended the indictment and prejudiced appellant. A criminal defendant is entitled to complete and accurate jury instructions on all the issues raised by the evidence. State v. Sneed (1992), 63 Ohio St.3d 3, 9. "The trial court is to instruct - 34 - the jury by clearly and concisely stating the principles of law necessary to allow a fair verdict and the administration of justice." State v. Baker (1993), 92 Ohio App.3d 516, 536. When reviewing the trial court's charge, a "single instruction to a jury may not be judged in artifical isolation, but must be viewed in the context of the overall charge." State v. Price (1979), 60 Ohio St.2d 136, 141. A reviewing court must consider the whole charge as given rather than separate portions of the charge. State v. Grambo (1947), 82 Ohio App. 473. A judgment will not be reversed if a portion of the general charge is improper and misleading unless the entire charge resulted in prejudicial error. State v. Porter (1968), 14 Ohio St.2d 10. Appellant relies on State v. Vitale (1994), 96 Ohio App.3d 695, to support his contention. In Vitale, this court reversed a conviction for theft where the trial court granted the prosecu- tion's motion to amend the indictment at the close of the state's case. The indictment alleged the defendant committed the offense on or about June 14, 1991. The indictment was amended to show the theft occurred from June 14, 1991, through June 21, 1991, inclusive. The trial court acquitted Vitale of any offense for the June 14th date but convicted the defendant of theft which occurred on June 21. The facts of the two offenses differed. This court found there was a risk Vitale was convicted of an offense for which evidence was not presented to the grand jury. The trial court abused its discretion by amending the indictment because the different events, time, and place of the June 21 offense from the - 35 - June 14 theft changed the identity of the crime charged in the indictment. In the instant case, the prosecution only presented evidence pertaining to one set of facts which occurred on March 28, 1995. If the jury was to give credence to the prosecution's case, it would have to accept March 28, 1995, as the date of Lewis's murder. Usually, in a criminal case the exact date and time are immaterial unless in the nature of the offense exactness of time is essential. Tesca v. State (1923), 108 Ohio St. 287. Whether a trial court erred by giving an "on or about" instruction is dependent upon the facts of the particular case. Such an instruction is subject to a harmless error analysis. United States v. Neuroth, 809 F.2d 339 (6th Cir. 1987). The Bill of Particulars alleged the offense occurred on March 28, 1995. The trial court erred by expanding upon this date. However, the error is harmless as the prosecution presented the jury with only one set of facts for its consideration. Those facts were based on the offense occurring on March 28, 1995. When viewed in its entirety, the charge did not prejudice appellant. Appellant's tenth assignment of error is overruled. - 36 - XII. Appellant's eleventh assignment of error challenges the trial court's instruction regarding the jury's evaluation of appellant's testimony. The trial court charged the jury as follows: The defendant testified as a witness in this case. And you will weigh his testimony in the same manner as you weigh the testimony of other witnesses who appeared in this case. Just because he is the defendant is no reason for you to disregard and set aside his testimony. And you will give his testimony the weight it is entitled to receive, taking into consideration his interest in the outcome of the case and apply to his testimony the same rules that you will apply to the testimony of all other witnesses who appeared in this case. It is for you to determine what weight you will give to the testimony of any witness who appeared in this case. (Tr. 1087-1088). Earlier, the trial court instructed the jury that one consideration when determining the credibility of a witness is the interest or bias that witness has in the outcome of the verdict. However, appellant argues the instruction pertaining to his testimony singled it out for special consideration. In State v. Perkins (1994), 93 Ohio App.3d 672, essentially the same argument was advanced by the defendant. This court concluded the defendant was not prejudiced by the instruction while noting that the trial court gave the same substantive instruction concerning the jury's consideration of testimony given by all the other witnesses. Id. at 683. The same is true in the instant case. The jury was told to consider the interest a witness would have in the outcome of the case. The instruction relating to appellant's testimony was the same. - 37 - Appellant's eleventh assignment of error is not well-taken. XIII. Appellant's twelfth assignment of error submits that the trial court erred by including an instruction on aiding and abetting. Appellant argues the prosecution only presented evidence that appellant personally committed the murder. Appellant notes that Marshall's testimony reflected Marshall heard two shots. When he looked down the steps, Marshall observed appellant with a gun in his hand and Lewis laying on the ground. When the evidence adduced at trial could reasonably be found to have proven the defendant guilty as an aider and abettor, a jury instruction by the trial court on that subject is proper. State v. Perryman (1976), 49 Ohio St.2d 14, paragraph five of the syllabus. Marshall testified he saw his cousin Willie with a gun before Marshall went up the steps to stand by the door. Marshall heard two shots fired. Marshall looked down the stairs into the basement and observed that appellant was holding the gun. There- fore, Willie could have fired either one, both, or none of the shots. A person who performs every act constituting an offense is the principal offender. State v. Williams (1996), 74 Ohio St.3d 569, 573. There was evidence appellant did not perform every act of Lewis's murder. Charges to the jury should be addressed to those issues of fact which the evidence tends to establish. State v. Cox (1975), 42 Ohio St.2d 200. Because there was evidence of aiding and abetting, the trial court did not err by instructing the jury on that issue. - 38 - Appellant's twelfth assignment of error lacks merit. XIV. In his thirteenth assignment of error, appellant contends the trial court erred by overruling his Crim.R. 29 motion and that his conviction was against the manifest weight of the evidence. Appellant points to certain discrepancies in the evidence to support his argument. A motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. Crim.R. 29(A). It will not be granted "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 trial court must construe the evidence most stongly in favor of the prosecution. State v. Fyffe (1990), 67 Ohio App.3d 608, 613. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction 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. Appellant first argues Shenelle Owens' testimony failed to establish the date of death. During cross-examination, Owens admitted she based her testimony regarding the March 28, 1995, date upon information given her by the police. However, other evidence admitted at trial supports the date of March 28, 1995. The 911 - 39 - call made by Owens' neighbor established that the altercation between the victim and appellant occurred on March 28, 1995. The testimony of Sarah Marshall and William Marshall also helped establish the date of the offense. There was sufficient evidence admitted to support the prosecution's case that Lewis was abducted and murdered on that date. Appellant also points to conflicts between the testimony of Sarah and William Marshall. The differences in the testimony were brought out at trial. Credibility determinations are not pertinent to reviewing whether sufficient evidence to support a conviction was admitted at trial. Appellant was convicted of kidnapping. R.C. 2905.01 governs that offense. It states in part: (A) No person, by force, threat, or deception, *** by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: *** (3) To terrorize, or to inflict serious physical harm on the victim or another; ***. There was evidence appellant and his brother forced Lewis into their car. There was evidence Lewis was driven to the Marshall home where he was killed. Evidence sufficient to support each element of the kidnapping offense was admitted at trial. Appellant was convicted of two counts of aggravated murder in violation of R.C. 2903.01 which provides in pertinent part: (A) No person shall purposely, and with prior calculation and design, cause the death of another. - 40 - (B) No person shall purposely cause the death of another while committing or attempt- ing to commit, or while fleeing immediately after committing or attempting to commit kidnapping ***. There was evidence appellant purposely caused the death of Lewis by shooting Lewis in the head. There was evidence appellant and his brother committed the act with prior calculation and design as they had a weapon, took Lewis to another place, restrained Lewis by tying him to a pole, and then placed the gun to the head of Lewis and fired, killing Lewis. There was evidence the murder was committed after appellant and his brother kidnapped Lewis. Sufficient evidence to support appellant's conviction for both counts of aggravated murder was admitted at trial. When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscar- riage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. - 41 - The discrepancies between the testimony of Sarah and William Marshall were brought out at trial by defense counsel. It is primarily for the jury to determine the credibility of the various witnesses presented at trial. The differences in the testimony are not such that a manifest miscarriage of justice occurred in the instant case. A review of the evidence on the record reflects that appellant's conviction was not against the weight of the evidence. Appellant's thirteenth assignment of error is overruled. XV. In his fourteenth assignment of error, appellant contends the trial court erred by subjecting him to multiple punishments for the same offense. Appellant was convicted of one count of aggravated murder, in violation of R.C. 2903.01(A), and one count of aggravated murder, in violation of R.C. 2903.01(B). Appellant also was convicted of one count of kidnapping. All of the counts included a firearm specification. The trial court sentenced appellant to two life terms, one for each of the aggravated murder counts and eight-to-fifteen years for the kidnapping conviction. A three year sentence was imposed for each firearm specification to run consecutively to the sentence for each count. The two life terms and the kidnapping sentence are concurrent. R.C. 2941.25 provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. - 42 - (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. Where a defendant who kills only one victim is convicted of two aggravated murder counts, the trial court may sentence on only one count. State v. Waddy (1992), 63 Ohio St.3d 424, 447. The two charges of aggravated murder were allied offenses of similar import. It was error for the trial court to sentence appellant on both counts. See State v. Brown (1988), 38 Ohio St.3d 305. In Brown, the court found the error to be harmless. That was a capital case where appellant received two separate death sentences for the same offense. The error was cured by the independent review of the appellate process. In the instant case, appellant's sentence violated the purpose of R.C. 2941.25 which prohibits duplication of punishment where both crimes are motivated by the same purpose and where conviction of both would be dependent upon identical conduct and the same evidence. See State v. Hunsaker (1992), 78 Ohio App.3d 251. See also State v. Wolfe (1988), 51 Ohio App.3d 215. Appel- lant received two life sentences for the murder of one victim. This was error. The two sentences are merged. Appellant is sen- tenced to one term of imprisonment for life. A three-year term for the gun specification is to be consecutive to the life sentence. The error has been corrected on appeal. - 43 - Appellant also asserts his kidnapping conviction falls under the provisions of R.C. 2941.25(A). However, aggravated murder and kidnapping are not allied offenses of similar import. State v. Jells (1990), 53 Ohio St.3d 22. In Jells, the victim was forced into a van. The kidnapping was completed when the defendant drove off. The victim later was murdered by the defendant. As in Jells, Lewis was "stuffed" into the car and driven away. This completed the kidnapping offense. His later murder was not an allied offense. The trial court did not err by sentencing appellant separately for this offense. Appellant's fourteenth assignment of error is sustained. XVI. In his supplemental assignment of error, appellant contends his bind-over to the court of common pleas was improper because there was no mental or physical examination of appellant as required by law. Further, the juvenile court made no specific findings of fact regarding the requirements which are to be considered by the juvenile court under Juv.R. 30(F). That rule provides as follows: In determining whether the child is amenable to the treatment or rehabilitative processes available to the juvenile court, the court shall consider the following relevant circum- stances: 1) The child's age and mental and physical condition; 2) The child's prior juvenile record; 3) Efforts previously made to treat or rehabilitate the child; - 44 - 4) The child's family environment; 5) The child's school record; 6) The specific facts relating to the offense for which probable cause was found, to the extent relevant to the child's physical or mental condition. A juvenile court's decision of whether to retain or relinquish jurisdiction is discretionary and will not be reversed upon appeal absent an abuse of that discretion. State v. Watson (1989), 47 Ohio St.3d 93. A juvenile court has wide latitude in making that determination. State v. Carmichael (1973), 35 Ohio St.2d 1, paragraph one of the syllabus. The decision of whether a juvenile would not be amenable to rehabilitation must be made upon the totality of the evidence. State v. Campbell (1991), 74 Ohio App.3d 352, 356. Juv. R. 30(F) does not require the juvenile court to make written findings as to the factors listed therein. Juvenile court only is required to consider those factors in making its determination on amenability. State v. Douglas (1985), 20 Ohio St.3d 34. The juvenile court's journal entry stated as follows: Upon conclusion of all the evidence relating to the motion to transfer jurisdiction for criminal prosecution and the arguments of counsel, the court finds that child herein was 15 years of age at the time of the conduct charged, that there is probable cause to believe that the child has committed act(s) alleged in the complaint and that such acts, if committed by an adult, would constitute a felony. The court finds after a full investiga- tion, including a mental and physical exam- - 45 - ination of said child made by a duly qualified person(s), and after full consideration of the child's prior juvenile record, efforts pre- viously made to treat and rehabilitate the child, the child's family environment, the child's school record, and other matters of evidence, that there are reasonable grounds to believe that the child herein is not amenable to care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children, and that the safety of the community may require that the child be placed under legal restraint for a period extending beyond his majority. The court further makes the following specific finds (sic) of fact: (1) There have been previous efforts to rehabilitate said child. (2) History of physical aggression towards others. (3) Violent nature of offenses. The language of the order tracks that of Juv.R. 30(F). The juvenile court was not required to issue specific findings of fact as appellant contends. A review of the evidence adduced at the amenability hearing supports the determination to bind-over appellant for trial as an adult. Appellant previously had been in Sheltercare at the Jones Home and attended Camp Lauston Boot Camp. At both, appellant threatened violence and assaulted others. Criminal charges were filed. Appellant was away from home for days at a time and has sold drugs. Appellant received numerous suspensions from his school for various offenses, some due to fighting, assault and threats. He was failing all of his classes. Appellant asserts no mental or physical examination took place. The record reveals appellant stipulated to the psycho- logical evaluation. Appellant's counsel waived the privilege to call the doctor to the stand. Based upon the record, it is obvious - 46 - the required mental examination was conducted in this case and that a psychological report was before the court. The investigatory probation officer testified appellant was in fair physical condition without any physical limitations. The juvenile court's order binding appellant over states that a physical examination of appellant was conducted by a qualified person. Based on all of the above, juvenile court's bind-over of appellant to be tried as an adult was valid. Juvenile court complied with the requirements of Juv.R. 30(F). Appellant's supplemental assignment of error lacks merit. Judgment affirmed as modified. - 47 - 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. TERRENCE O'DONNELL, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .