COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72206 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : LATONYA STEELE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 18, 1997 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-339486 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Richard J. Bombik Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Henry J. Hilow McGINTY, GIBBONS & HILOW One Cleveland Center 1375 East Ninth Street, #1920 Cleveland, Ohio 44114 -2- NAHRA, P.J.: Appellant, Latonya Steele, appeals her conviction of Murder, R.C. 2903.02, following a jury trial. Appellant assigns a variety of errors for this court's review involving the ineffective assistance of counsel, manifest weight, hearsay, prejudice, and improper jury instructions. We affirm. Dr. Stanley Seligman, a deputy coroner, testified regarding the autopsy he performed on the victim, Makeya Nicki Lumpkin. Dr. Seligman stated that the victim, twenty years of age at the time of her death, sustained three stab wounds, one to the head and two to the back. The head wound was located on the left hand side of the forehead and penetrated three quarters of an inch. The second wound was located on the right upper back and was superficial. However, the final stab wound, located on the left upper back, penetrated three inches through the lung and into the heart. Dr. Seligman stated that it was this wound that caused the internal bleeding and proved to be fatal. Sharon Rosenburg, employed as a forensic scientist in the Cuyahoga Coroner's Office, testified concerning her observations of the victim's clothing, specifically the vertical slash on the back of the tee shirt that the victim had worn on the day of the incident. She stated that this corresponded to the fatal wound sustained by the victim. Next, Patrolman Douglas Hunt stated that he responded to a call at approximately 7:49 p.m. on May 27, 1996, which directed him to the area of Cable Avenue and Adolpha. Upon arriving at the -3- scene, he noticed the victim being attended to by the ambulance personnel on the tree lawn. He stated he then attempted to ascertain what had taken place by interviewing various people, including the appellant, Michael Brantley, Lavelle Heard, Robin Brantley, and Shamika Brantley. The defendant told Hunt that she and the victim had gotten into a fight and that she had stabbed Nicki with a knife. He also noticed that Latonya had sustained an injury, a laceration to her left hand which she admitted receiving during the fight. Hunt further stated that the only weapon recovered from the area was found inside the home and was the knife used by Latonya. Detective Robert Kuenzel testified that he obtained written statements from Shamika Brantley, Robin Brantley and Lavelle Heard on the night of the incident. He also confiscated the appellant's clothes, obtained a blood sample, and delivered this evidence to the Coroner's Office. Brenda Lumpkin, Nicki's mother, testified that the victim was five feet one-half inches tall and weighed approximately one hundred and twenty-six pounds. Further, on May 27, 1996, her daughter dropped her off at work, and continued on to a cookout at Ms. Lumpkin's sister's house. Diana Motley, the sister of Brenda Lumpkin, testified that she had a cookout on the 27th of May which was attended by Nicki. Nicki had arrived in the middle of the afternoon and left with a plate of food to take to her cousins around 6:45 p.m. -4- Eunice Cookie Mabry, a friend of both Latonya and Nicki, testified that on the day of the incident she received a call from her sister, Shamika Brantley. While speaking with Shamika, the appellant was handed the phone and Mabry spoke with her for approximately ten minutes. Mabry stated the bulk of their conversation concerned the fight with Nicki, and it was apparent from the conversation that Latonya was angry and upset. Appellant told Mabry that she was sick and tired of Nicki's harassment, and of Nicki dogging her. Mabry further stated that during their conversation Latonya abruptly dropped the phone and that Mabry heard the screen door slam. The phone was then picked up by Shamika with whom she spoke for approximately five minutes until their conversation was cut off with Shamika yelling she done stabbed her. Shamika Brantley testified that the appellant had been living in the Brantley home on Adolpha, also the home of her boyfriend, for about two weeks. On May 27, 1996, her cousin, Nicki Lumpkin stopped by in the late afternoon and had a little boy with her. Moments after her arrival, Latonya came home from her job interview, and upon seeing the victim, stated you're the person I wanted to see. Latonya wanted to know why Nicki had called her out of her name and as a result, an argument ensued. This argument continued for about twenty minutes until Nicki and the little boy went outside and got into Nicki's car. Latonya followed. -5- Outside, the argument continued and at one point Nicki attempted to hit Latonya with her car. Latonya responded by picking up a broomstick and hitting Nicki's windshield until it cracked. Nicki then jumped out of the car wielding The Club, an anti-theft protection device, and chased Latonya back into the house. Latonya ran directly upstairs and came back down with a Rambo like knife. Robin Brantley then interceded and directed both Nicki and Latonya to put their weapons away, and they complied. After placing The Club back into her vehicle, Nicki remained outside. A few minutes later, Latonya was observed with a smaller knife in her back pocket which she relinquished to Robin. The appellant went back outside, and the argument resumed. Shortly, the argument turned into a physical fight which lasted for about ten seconds as Robin pulled Latonya off of Nicki. As previously mentioned, Shamika then called Eunice Cookie Mabry and Mabry's conversation with Latonya ensued. Latonya then dropped the phone and ran outside because she was told by a small child that Nicki wanted her. Shamika then ran outside upon learning that Nicki had been stabbed. Shamika estimated that the whole event lasted approximately forty-five minutes. Lavelle Heard, a friend of Michael Brantley's was the next to testify and he stated that while he and Michael were at a cookout he was paged. Robin wanted them to come home to help out with the situation. Upon arrival they noticed that Robin was walking in their direction and Latonya had turned to look their way while -6- Nicki was on the hood of a car a few feet behind Latonya. As they were exiting the vehicle, he saw Nicki swing at Latonya and saw Latonya swing back, striking the victim in the head. In total Lavelle saw Latonya swing at Nicki three times, once to the head and twice to the side. Both he and Michael interceded, Michael grabbing Nicki, and Lavelle grabbing Latonya. Lavelle further testified that as Michael was holding Nicki, he looked at Latonya and told her you didn't have to stab her. The final witness for the State was Robin Brantley, the mother of Michael and Shamika, and the owner of the home located at 5712 Adolpha Rd. Robin testified that she overheard Nicki and Latonya arguing and exited her bath to investigate. By the time she had put on her clothes the argument had moved outside and she could hear Nicki complaining about her windshield. Latonya and Nicki came inside and she confronted them as Nicki was wielding The Club and Latonya was holding a large knife. She asked the participants to return their weapons to their respective places, to which they complied. She later saw Latonya with a smaller knife in her back pocket, and Robin confiscated this. Robin then stated she went outside, observed the two fighting and pulled Latonya off of Nicki. Latonya then went inside and Robin stayed outside with Nicki. Ten to fifteen minutes later the appellant came running back outside and approached Robin and Nicki. Latonya then stated bitch, you call me out again. Robin saw Michael's car approaching and went toward them in hopes that he could help defuse the matter. When she turned around, she saw that -7- the defendant was holding the victim by the shirt and was punching the victim. She also saw the defendant with a knife in her hand and noticed that Nicki was not armed. At the close of evidence by the State, the defense made a motion for acquittal on all charges; aggravated murder, and any lesser included offenses. Crim.R. 29. The court ruled pursuant to Crim.R. 29, that the State has failed to meet a prima facie case of aggravated murder, but that the State has established abundant evidence for jury purposes of the crime of murder. Therefore, the motion for acquittal under Rule 29 is granted as to the count of aggravated murder, but overruled in favor of the lesser included charge of murder. The defense presented two witnesses on behalf of appellant, Michael Brantley, and the defendant. Michael Brantley, boyfriend of Latonya and cousin of Nicki, identified the knife that was used to kill Nicki as one he had purchased from a flea market in Columbus. On the day of the stabbing, Michael testified that he and Lavelle Heard were at a friend's house when he received a page to return home. As he pulled in his driveway and was exiting the vehicle, he observed Nicki swing with her left hand at appellant and then saw Latonya swing back. He and Lavelle raced over to break up the fight. Michael grabbed Nicki and Lavelle grabbed Latonya. He then stated to the defendant What the fuck did you do? -8- Michael also admitted that he gave a typewritten statement to the police two to three hours after the event. In this statement he said that as he was exiting his car he heard Latonya call Nicki a name. Immediately following, Nicki swung at the appellant but did not connect. Appellant then started swinging at the deceased. Latonya Steele testified on her own behalf. She admitted that she confronted Nicki about calling her a name two weeks prior when she first saw her. She also corroborated the testimony for the state concerning Nicki's car. She stated further that Nicki wielded The Club which she relinquished to Robin, and she had two knives taken away from her by Robin. She and Nicki then had a physical fight outside which lasted approximately ten seconds, and she then proceeded indoors. In the ten to fifteen minute period that she was indoors, and Nicki was outdoors, Latonya stated she talked on the phone with Mabry, played with Shamika's infant child, fixed herself some food, and in the process went into Robin's bedroom where she saw her small knife on the dresser. She picked up the knife and as she was walking upstairs to put the knife away, Michael Brantley's daughter came in the house and informed her that Nicki wanted to see her outside. At this point, she put the knife in her back pocket and went outside. She confronted Nicki and asked if she wanted to see her. After engaging in a brief conversation with Nicki and Robin, she noticed Michael arriving. Nicki then spoke to Michael, complaining to him about what Latonya had done to her eye, and then -9- swung at Latonya causing her to spin around and begin swinging at Nicki with her knife. Latonya did not know how her hand got cut. I. Appellant's first assignment of error states: I. THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY. The appellant argues that the trial court judge erred in not making further inquiry as to the possible taint of jurors. As a result of this error, it is the appellant's contention that she was denied her right to a fair and impartial jury. The Sixth Amendment and Article I, Section 5 of the Ohio Constitution guarantees that the right to a trial by jury is designed to ensure criminal defendants a fair trial by a `panel of impartial, indifferent jurors.' State v. Rudge (1993), 89 Ohio App.3d 429, 442, 624 N.E.2d 1069, quoting Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642. When possible juror misconduct is brought to the trial judge's attention he has a duty to investigate and to determine whether there may have been a violation of the Sixth Amendment. Rudge, supra; see, also, U.S. v. Griffith (C.A.6 1985), 756 F.2d 1244, 1252. Since the trial judge is in the best position to determine the nature and extent of alleged jury misconduct, his decision on the scope of the proceedings necessary to discover misconduct is reviewed only for an abuse of discretion. Rudge, supra; see, also, U.S. v. Soulard (C.A.9 1984), 730 F.2d 1292, 1305. On the fifth day of trial, it was brought to the court's attention that one of the witnesses, Lavelle Heard, thought that -10- one of the jurors, juror #6, was his uncle. Lavelle was not certain because he had only met his uncle once, and that was ten years ago. After a careful examination of this witness by the prosecution, defense, and the judge, and a discussion by the attorneys and the judge, as to how to determine if Juror #6 was tainted, it was determined that the judge would question the jurors, as a panel, to see if they recognized or knew any of the witnesses. The panel would also determine if this particular juror or any other juror was potentially tainted. If further questioning was necessary, the juror in question would be removed to the judge's chambers. Upon inquiry, the judge elicited several responses. Juror #10 stated that in the course of his duties as an officer of the law he recognized a few of the expert witnesses from the coroner's office. The judge determined this to be understood and reported the information back to the attorneys, neither of which found it to be objectionable. Juror #1, a teacher, stated that Latonya looked familiar and thought that she may have been her teacher at some point in time. While Juror #7, a fireman, stated that he knew a few people by the name of Steele on the force, but was not sure there was any relationship. Juror #6, however, remained silent. The judge reported these findings back to the respective attorneys, in the presence of the defendant, and asked if there was any reason why the trial could not proceed. Each attorney, as well -11- as Latonya, indicated that there was no reason for any further delay. The trial court, as well as the attorneys in the present case were very thorough in their investigation of the possibility of a tainted juror. It is clear from the record that all parties were very thoughtful in their discussion of any problem, and any potential remedy. The manner in which they chose to interrogate the panel was acceptable to all present. The judge informed the parties as to the jurors' various responses, and asked if the trial could proceed. The parties responded in the affirmative. As a result, since every reasonable precaution was taken, the jury members elicited their concerns upon inquiry, and each party agreed to the jury panel as constituted, there was no abuse of discretion by the trial court. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GIVE REQUESTED JURY INSTRUCTIONS WHICH WERE PERTINENT, AND BY GIVING INSTRUCTIONS LIKELY TO CONFUSE THE JURY. Since Steele failed to object to the deficiencies she alleges, she has waived all but plain error as the standard of review. Crim.R. 30(A); State v. Underwood (1983) 3 Ohio St.3d 12, 444 N.E.2d 1332, syllabus. The standard of review for plain error in the presentation of jury instructions was addressed by the Supreme Court of Ohio in -12- State v. Cooperrider (1983), 4 Ohio St.3d 226, 227, 448 N.E.2d 452, when the court stated: An erroneous jury instruction does not constitute plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. * * * Additionally, the plain error rule is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice. [Citations omitted.] See, also, State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804; State v. Waddell (1996), 75 Ohio St.3d 163, 661 N.E.2d 1043; State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710. The appellant maintains that the trial judge was in error when he did not instruct the jury on the lesser included offense of involuntary manslaughter, and that he also confused the jury as to how to fill out the proper verdict forms. Specifically, appellant contends that the trial judge did not make clear enough the necessity of considering all the mitigating factors of manslaughter once there was a determination of guilt beyond a reasonable doubt for murder. The appellant claims she was prejudiced because this confusion led the jury to believe that once they found her guilty of murder, they did not need to consider the applicable mitigating factors for a reduction to manslaughter. In a trial for murder, R.C. 2903.02, a jury instruction on the lesser included offense of involuntary manslaughter, R.C. 2903.04, is justified only when, on the evidence presented, the jury could reasonably find against the state on the element of purposefulness and still find for the state on the defendant's act of killing -13- another. State v. Campbell (1994), 69 Ohio St.3d 38, 47, 630 N.E.2d 339. Whether a lesser included offense should be submitted to the jury depends on the record of each case. State v. Clark, 101 Ohio App.3d at 419. The defendant in a criminal case is entitled to a jury instruction on a lesser included offense only where the evidence warrants it. Id. However, just because an offense may be statutorily defined as a lesser included offense of another, a charge on the lesser included offense is required only where there is evidence presented at trial that would reasonably support an acquittal on the crime charged and a conviction upon the lesser included offense. Id. at 420; see, also, State v. Thomas (1988), 40 Ohio St.3d 213, 216, 533 N.E.2d 286, 289-290; State v. Coulter (1992), 75 Ohio App.3d 219, 225, 598 N.E.2d 1324, 1327- 1328. In a careful review of the jury instructions, the record indicates that if anything, the trial judge erred on the side of being too thorough. The instructions, as given, were thoughtful, clear, unambiguous and succinct. The judge reduced the earlier indictment of aggravated murder to murder because he did not believe the state had proven the prima facie element of prior calculation and design. Moreover, the court included an instruction on voluntary manslaughter. The evidence as presented required the judge to include this instruction because there was a question as to the mitigating factors related to Latonya's state of mind concerning sudden passion or a fit of rage. However, the nature of the wounds inflicted and the fact that Latonya went -14- directly to a knife when the fight began, clearly support a finding of purposefulness. As a result, an instruction of involuntary manslaughter would have been improper. Further, the trial court's instructions relating to the filling out of the jury verdict forms was neither confusing or misleading. In this regard, the defendant claimed the court failed to instruct the jury on mitigating factors. However, in instructing on the elements of murder and of manslaughter, the court had fully and properly instructed on mitigating factors. Accordingly, appellant's second assignment of error is overruled. III. Appellant's third assignment of error states: III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. The federal and Ohio test for determining if a defendant was denied the effective assistance of counsel are strikingly similar. The federal test is whether counsel's conduct so undermined the proper functioning of the adversarial process that the defense was prejudiced. Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus, it was determined that in Ohio an ineffective assistance claim requires proof that counsel's performance is proved to have fallen below an objective standard of reasonable representation and in addition prejudice arises from counsel's performance. Id. In order to establish such prejudice, the appellant must -15- demonstrate that there is a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different. State v. Bradley, supra, paragraph three of the syllabus. Furthermore, we operate under the presumption that counsel's assistance was both reasonable and professional. State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417; see, also, Strickland, 446 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Appellant's main concern is with the handling of the jury panel once it was realized that they could possibly be tainted. It is her contention that, at the very least, her attorney should have effected due diligence, questioned or investigated the three jurors who spoke up at the judge's interrogation. She maintains that her attorney's choice not to question any of these jurors further, or in the alternative to instruct the judge to do so, deprived her of a fair trial. This court has already determined in assignment of error number one that the judge and both counsel acted in a fair and reasonable manner in handling the questioning of the jury. They made all the necessary inquisitions, and made a determination that these jurors could reach an impartial decision. There was no plain error. Appellant's third assignment of error is overruled. IV. Appellant's fourth assignment of error states: IV. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -16- Appellant argues that based upon the totality of the evidence no reasonable jury could have found her guilty of murder. In State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, the court set forth the test to be utilized when addressing the manifest weight of the evidence: 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 102 S.Ct. 2211. Further, in reviewing under the above-mentioned standard, the court should take into account the following factors: (1) awareness that even a reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) the extent to which a witness may have a personal interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary. State v. Clark (1995), 101 Ohio App.3d 389, 408, 655 N.E.2d 795. Moreover, this court may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt. State v. Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33, 583 N.E.2d 576. It is essential that a court, on review, be aware that the weight of the evidence and the credibility of the witnesses are issues that are properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476, 620 N.E.2d 50; see, also, State v. DeHass(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of -17- the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; see, also, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492; State v. Coulter (1992), 75 Ohio App.3d 219, 232, 598 N.E.2d 1324. In this case, the record reflects that the court instructed the jury on both murder and the lesser included offense of voluntary manslaughter. After deliberation the jury convicted appellant of murder. The central issue then presented is was the jury reasonable in reaching this conclusion. After a careful review of the record, we cannot conclude that the jury created a manifest miscarriage of justice in convicting Steele of murder. There was substantial evidence from which the jury could conclude that appellant purposely caused the death of Nicki Lumpkin. Appellant is essentially arguing that her evidence is more credible, and credibility is to be determined by the jury. State v. Coulter, 75 Ohio App.3d at 232. This assignment of error is overruled. -18- V. Appellant's fifth assignment of error states: V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY ADMITTING HEARSAY. Appellant contends that during the course of the trial, the court erred in allowing certain hearsay testimony to take place, and subsequently allowed the jury to consider this hearsay as substantive proof of the appellant's guilt. Hearsay is defined as a statement, other than one made by declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Evid.R. 803 recognizes certain exceptions to the hearsay rule where the availability of the declarant is immaterial. Evid.R. 803 provides in pertinent part: (1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness. (2) Then Existing, Mental, Emotional, or Physical Condition.A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), * * * . The appellant maintains that the trial court improperly admitted testimony by Lavelle Heard concerning a statement made by Michael Brantley to Latonya just after the stabbing. The statement was made just after Michael and Lavelle had broken up the fight, and Michael was holding Nicki. Lavelle testified that Michael looked at Latonya and stated you didn't have to stab her. This statement was objected to by defense counsel and the trial judge limited the introduction as a verbal act, asserting that it was -19- being offered not for its truth but for the fact that the statement was made. The trial court was correct in admitting this statement by Lavelle. This statement by Michael, as testified to by Lavelle, clearly falls under both the present sense impression exception, as well as the excited utterance exception. Lavelle was merely relaying a statement made by Lavelle immediately following a startling event which describes what had just taken place. Michael was shocked by what had just transpired, still caught up in the moment, and spoke from the heart. Clearly, the statement qualifies under either of the above-mentioned exceptions. Further, it is hard to see how this statement prejudices the appellant. Michael testified for the defense, affording the appellant's attorney every opportunity to question Michael as to the statement's veracity. Moreover, the defense admitted that Latonya stabbed Nicki, as they a laid foundation for self-defense. Accordingly, appellant's fifth assignment of error is overruled. -20- VI. Appellant's sixth assignment of error states: VI. THE COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE TESTIMONY OF BRENDA LUMPKIN, THE MOTHER OF THE VICTIM, WHICH TESTIMONY WAS INADMISSIBLE UNDER OHIO RULE OF EVIDENCE 403, AS THE TESTIMONY WAS HIGHLY PREJUDICIAL TO THE DEFENDANT. Evid.R. 403 provides in pertinent part: (A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or of misleading the jury. (B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is substantiallyoutweighed by considerations of undue delay, or needless presentation of cumulative evidence. The admission of evidence as well as the regulation of the examination of witnesses rests within the sound discretion of the trial and that court's ruling as to such matters will not be reversed without a demonstration of an abuse of that discretion resulting in a material prejudice to a party. Schwochow v. Chung (1995), 102 Ohio App.3d 348, 353, 657 N.E.2d 312; see, also, Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d 1291, 1298-1299. An abuse of discretion entails more than an error of law or judgment, and to warrant a reversal the trial court's action must be unreasonable, arbitrary, or unconscionable. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1201, 1308- 1309; see, also, Apaydin v. Cleveland Clinic Foundation (1995), 105 Ohio App.3d 149, 152, 663 N.E.2d 745. -21- After a careful review of the transcript of Brenda Lumpkin, there is nothing in her testimony that could be considered to have evoked unfair prejudice. The prosecutor, on direct, was very careful to limit his questions to those facts he needed to elicit. The testimony of the mother was not misleading or confusing. There is no indication the trial court abused its discretion; i.e., acted in an unreasonable, arbitrary or unconscionable manner in allowing the testimony of the victim's mother. Accordingly, appellant's sixth assignment of error is overruled. The judgment of the trial court is affirmed. -22- 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. O'DONNELL, J., and __________________________________ JOSEPH J. NAHRA ROCCO, J., CONCUR. PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .