COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70986 STATE OF OHIO : JOURNAL ENTRY : Plaintiff-Appellee : AND : vs. : OPINION : WILLIE JOHNSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-332567 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD J. BOMBIK RONNI DUCOFF Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PHYLLIS BROOKS 75 Public Square #1111 Cleveland, Ohio 44113 2 O'DONNELL, J.: Willie Johnson appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of involuntary manslaughter and child endangering in connection with the death of two-month-old Darricka Pou, alleging that his convictions are against the manifest weight of the evidence and that prosecutorial misconduct denied him a fair trial. Having carefully considered these arguments, reviewed the record, and considered applicable law, we reject these assignments of error and affirm the conviction. Tiffany Jones, the twenty-two-year-old mother of DeVante Tray Vion Jones and Darricka Pou, who lived at the Super 8 Motel in Twinsburg, Ohio, with her children, planned to attend Tupac's Rap Concert at the Gund Arena on the evening of January 4, 1996, with two of her girlfriends, Yolanda Veasley and Kelley Williams. In preparation for the evening, Jones shopped for clothes at the Randall Park Mall, and around 5:00 p.m., she arranged for a babysitter for her children. Troy went to Aunt Vanessa Veasley's home somewhere on Cedar Avenue, and Darricka Pou was taken to the home of Jones' aunt, Linda Johnson; however, because Johnson had made previous plans to attend a bingo game, she could not babysit and, as a result, Jones took the baby to Linda Johnson's father's house at 9018 Folsom Avenue in Cleveland and asked Willie Johnson, whom she regarded as her grandfather, to babysit for her. The record reflects that at the time she left the baby with Johnson, the baby had been crying and had a runny nose. Appellant 3 instructed her to return that night to pick up the baby. Eloise Johnson, appellant's wife, changed the baby's diaper and fed the baby and, afterward, appellant then took the baby upstairs with him. According to Arleisha Williams, appellant's stepdaughter, she had seen no bruises on the baby before he did so, and she heard the baby crying for about fifteen minutes thereafter, but never heard any more crying. The upstairs of the Folsom residence was an area Willie Johnson reserved for himself and his dog. Eloise Johnson, his wife, testified that he drank there on weekends and his drinking would make him sleep. Willie Johnson, 73, claimed he took the baby upstairs and spread a blanket on the floor where he and the baby slept. He indicated that no other adult had been upstairs that evening. He admitted to Detective Jack Bornfield that he had been drinking that evening, but that he did not strike the baby or know how the baby was injured. After attending the rap concert, Jones and her friends partied at the Ritz Carlton where they drank champagne and smoked blunts cigars filled with marijuana leaving the hotel around 3:00 a.m. When she arrived to pick up her daughter, Jones knocked on the window, Arleisha Williams let her in and she called for appellant to bring the baby downstairs. When he did so, the baby was cold, stiff, lifeless, and had sustained a noticeable two-inch contusion on the forehead caused by at least two blunt impacts resulting in a fractured skull, displacement of the fibrous connections of the bones, and hemorrhaging. Jones immediately screamed that Johnson 4 had killed her baby and began crying. Henry Jeffries, appellant's stepson then attempted, unsuccessfully, to revive the baby. Upon investigation by representatives of the Cleveland Police Department Homicide Unit, the Grand Jury indicted Willie Johnson for murder, felonious assault, and child endangering. Following trial, the court dismissed the felonious assault charge before submitting the case to the jury and after deliberation, the jury returned verdicts finding appellant guilty of involuntary manslaughter, a lesser included offense of murder, and child endangering. The court sentenced Johnson to concurrent terms of 9- 25 and 4-15 years on these convictions. Johnson now appeals and raises two assignments of error for our review. I. DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Johnson argues that his convictions are against the manifest weight of the evidence because no one testified that he caused the baby to suffer a blunt impact to the head. He urges that, because neither the time of death nor the baby's state of consciousness following impact could be medically determined, reasonable inferences could be drawn that Jones or another caretaker could have inflicted impacts to the baby at an earlier time. The state argues that Johnson's convictions are not against the manifest weight of the evidence because of the overwhelming and uncontested circumstantial evidence establishing his guilt. 5 The issue for our resolution is whether Johnson's convictions are against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be applied in considering a claim that a conviction is against the manifest weight of the evidence, and the Supreme Court approved it in State v. Thompkins (1997), 780 Ohio St.3d 380. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. In this case, the jury returned verdicts finding Johnson guilty of involuntary manslaughter and child endangering. The elements of these offenses which the state must prove beyond a reasonable doubt are as follows: R.C. 2903.04 defines Involuntary Manslaughter as: (A) No person shall cause the death of another as a proximate result of the offenders committing or attempting to commit a felony.*** and R.C. 2919.22 defines Endangering Children in part, as: (B) No person shall do any of the following to a child under eighteen years of age ***: *** (2) Torture or cruelly abuse the child; (E)(3) If the offender violates division (B)(2) ***, endangering children is a felony of the third degree, except that if the violation results in serious physical harm to the child involved ***, endangering children is a felony of the second degree. 6 An examination of the record here reveals that Arleisha Williams, appellant's stepdaughter, testified that she did not see any bruising, swelling or other visible injuries on Darricka Pou when Jones dropped her off at the Folsom Avenue residence around 6:30 p.m. on the night of the concert. In addition, Eloise Johnson, appellant's wife of twenty years, testified that before Johnson took the child from her, she had changed the baby's diaper and gave her about three ounces of milk; and the baby was awake but crying at the time. Also, Henry Jeffries, appellant's stepson, Williams, and Eloise Johnson, all testified that they heard the baby crying after Johnson had taken her upstairs. The testimony of these three witnesses permitted the jury to infer that the child had not sustained any blunt impacts to the forehead prior to the time Johnson took her upstairs. The record also contains disputed evidence concerning whether Johnson had been drinking on the night he took the baby upstairs. Detective Bornfield testified that appellant admitted consuming about one-third of the contents of a bottle of gin while he was upstairs with the child in the darkened room. Johnson denied drinking when he testified. Finally, Linda Johnson, appellant's daughter and a nurse at the MetroHealth Center, testified that she saw Jones slap Darricka Pou twice on the face but then kiss the baby, while leaving her home to take the baby to the appellant's house on Folsom Avenue. Appellant urges that these could have been fatal impacts. 7 The jury is permitted to consider both the credibility of the witnesses who testify and the weight to be given to their testimony. Here, after resolving conflicts, the jury determined that appellant had caused the death of Darricka Pou as a proximate result of committing child endangering in cruelly abusing the child. Based upon our review of the evidence in this case, we are unable to conclude that the jury clearly lost its way and created a manifest miscarriage of justice in this case and we overrule this assignment of error. II. PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Johnson here complains that during final argument, the prosecutor improperly made references to phone calls allegedly made by Eloise Johnson, appellant's wife, to the police regarding his drinking. The state urges the prosecutor did not engage in misconduct during final argument because the state's argument conformed to the evidence and the state's theory of the case included evidence that the baby had been cared-for by an intoxicated individual. Thus, the issue for resolution here concerns whether the statements contained in the prosecutor's final argument constituted prosecutorial misconduct. The prosecutor's duty in closing argument is to avoid efforts to obtain a conviction by going beyond the evidence which is before 8 the jury. The test is whether the remarks were improper, and if so, whether they prejudicially affect substantial rights of the defendant. United Statesv. Doss (1981), 636 F.2d 117, as cited in State v. Smith (1984), 14 Ohio St.3d 13. See also State v. Lott (1990), 51 Ohio St.3d 160, 165. Upon reviewing the record regarding the objections made during the testimony of Eloise Johnson, defense counsel did not timely object to the questions regarding her recent calls to the police about appellant's drinking, but after the testimony had been elicited, did object and sought a limiting instruction regarding relevance. The court sustained the objection and stated, No more on this with this witness, but never gave any limiting instruction to the jury. During final argument, the prosecutor attempted to convince the jury that Johnson is mean when he drinks and posed the following question to the jury telling jurors to use their common sense: Do you call 9-1-1 when someone is about to argue with you? inferring that Johnson may do more than simply argue with his wife. At that point during final argument, however, the court overruled the defense counsel's objection to the argument. Again, at a later point during that argument, the court overruled defense counsel's objection to the prosecutor's summary of appellant's testimony: He claims he has no drinking problem, admits the police were at his home last week, but not because he was drunk. Thus, the trial court permitted the argument in conformity with earlier testimony admitted into evidence concerning appellant's drinking. 9 Upon this state of the record and in accordance with the test set forth in United States v. Doss, supra, followed in Ohio, we cannot conclude these remarks constituted improper final argument which unfairly or prejudicially affected appellant. Hence, this assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. 10 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. NAHRA, P.J., and ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .