COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71685 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DAVID L. FISKO : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Lower Case No. CR-339820. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appelle: Stephanie Tubbs Jones Cuyahoga County Prosecutor Michael P. Donnelly Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Kathleen W. Wood Assistant County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 -2- SWEENEY, JAMES D., C.J.: Defendant-appellant David Fisko appeals from the jury verdict finding him guilty of aggravated arson in violation of R.C. 2909.02. The trial court sentenced the appellant to a term of nine to twenty-five years incarceration. The appellant was indicted after the home in which he had been living exploded. Both the appellant and Mr. Thomas Lovey, the upstairs tenant, were severely injured. Very early the morning of June 1, 1996, Cleveland Police Officer Ubienski and his partner answered a call to a fire located at 2075 Random Road, Cleveland, Ohio, in the Little Italy neighborhood of Cleveland. Upon arrival, the officers found a house fully engulfed in flames. The fire investigation was conducted at various points by Cleveland Fire Inspector Terry Bindernagel, assigned to the Fire Prevention Bureau as a hazardous materials specialist; Lieutenant Roger Maple of the Cleveland Fire Department's Arson Unit; Battalion Chief John Yatson, of the Cleveland Fire Department's Fire Investigation Unit; Lieutenant Daniel Kovacic of the Cleveland Fire Department's Fire Arson Unit; and Robert Zufall, claims manager for the East Ohio Gas Company. It is uncontested that the cause of the explosion was natural gas. The officers found a gas pipe running from the meter in the basement into the kitchen. This pipe was found to retain no pressure until the valve was closed by an officer. The end of the pipe in the kitchen was not attached to a stove and was found to be uncapped. After the explosion, the threads on the pipe were -3- undamaged. No other gas leaks or other types of abnormalities were detected. It was determined that the fire was incendiary in origin. Lietuenant Kovacic testified that it was appellant's lack of co-operation with the investigation which gave him probable cause to believe that a crime had been committed by the appellant. Thomas Lovey testified that he is employed as an inspector for the City of Cleveland. He has lived at the home on Random Road since August 1994. He was on friendly terms with the downstairs tenants. The apartment consisted of three small rooms. He also had a designated parking space for his motor vehicle and knew where the downstairs tenants parked their cars. Although there was a stove in his upstairs kitchen, it was not connected to the gas. Mr. Lovey never had any difficulties with the gas in the home, and never did he smell any gas. When Lovey returned home for the evening, the other tenants were not at home. Mr. Lovey retired that evening at approximately 11:30 p.m., and an explosion woke him from his sleep. As he arose from bed, he fell into a hole in the floor. He had crawled about three fourths of the way out of the hole when the second explosion occurred. The second explosion sent him airborne and he landed in the grass next to the driveway. Mr. Lovey recalls being in a great deal of pain, and he recalls neighbors assisting him to safety. He was taken by ambulance to the hospital to the Cleveland Clinic accompanied by one of the neighbors. Mr. Lovey testified as to the nature and extent of his injuries. The bones in his wrist were crushed and in order to -4- restore it the doctors placed cadaver bones inside. Mr. Lovey was bedridden because his right femur was broken in one place and cracked in several others. A rod was placed in the thigh. After this initial week long hospital stay, Mr. Lovey was sent to a nursing home. After a week stay in that facility, Mr. Lovey was returned to the Cleveland Clinic in order that the doctors might repair his left foot. Mr. Lovey's heel was broken into three pieces. Screws were required to attach the pieces of the heel together and to reattach the heel to the foot. Mr. Lovey returned to the nursing home. On August 2, 1996, Mr. Lovey left the nursing home, and since he lost all of his possessions in the fire, he moved in with a friend. A wheelchair ramp was installed by the owner and some friends so that Mr. Lovey might remain at the home. Mr. Lovey has begun physical therapy, but it is not certain when, if ever, he will be able to walk. Sick time is being donated by his co-workers so that he might continue to have income. Landlord Sam Perconti testified that the house on Random Road had two tenants, Tom Lovey who lived upstairs, and Salvatore Luca, downstairs. Mr. Luca, who was previously known to Perconti through their mutual trade as bricklayers, moved into the home May or June 1995. For the first few months no rent was charged as Mr. Luca agreed to make repairs to the house. Perconti believed that the appellant moved into the home in August 1995. No gas leaks or other difficulties were ever reported at the home. There was no insurance on the home. -5- The appellant was divorced from his second wife, Ms. Michelle Bertone, in 1994. From this marriage there was one son, Lucas. Ms. Bertone and the appellant made numerous court appearances regarding custody of their son, and the appellant, at the time of the fire, was able to have more visitation than he had previously been permitted. In addition, Ms. Bertone filed a court action which changed Lucas's name to Bertone, and later an adoption petitioned was filed by Mr. Bertone regarding Lucas. Subsequent to the divorce, the appellant was involved in a relationship with Stephanie Szymczak, who supported him in his efforts to increase visitation with Lucas. Salvatore Luca and the appellant, friends since they were teenagers, were roommates at the time of the fire. Luca had been dating Karen Bayless, purportedly a friend of Ms. Bertone's. Marc Mazzarino was a long-time friend of both Luca and the appellant. Stephanie Szymczak testified that she dated the appellant off and on for a period of three years, and that each of their numerous break ups was a final breakup. Two weeks prior to the fire, Ms. Szymczak ended their relationship yet again. The appellant contacted Ms. Szymczak three or four times a day attempting to reconcile. At one point the appellant pounded on her windows and doors because she would not speak to him. Ms. Szymczak testified that the appellant was a proficient handyman. On May 31, 1996, Ms. Szymczak contacted the appellant's employer and requested that the appellant leave her alone. Later that evening, the appellant delivered a letter to Ms. Szymczak. -6- The letter professed his undying love for Ms. Szymczak and stated that he would continue to fight for his son. Ms. Szymczak spoke with the appellant on the telephone subsequent to receiving the letter. She indicated to him that she did not wish to see him and then she unplugged her telephone. The morning of the fire, at approximately 3:00 a.m., Ms. Szymczak learned of the appellant's injuries through a telephone call from Ms. Bertone. Although she has never contacted Ms. Bertone, since the fire Ms. Bertone has called her ten to twenty times a day. As a result Ms. Szymczak has changed her telephone number and requested that she be permitted to omit her current address from her testimony. The appellant resided with Ms. Szymczak for a month while recuperating from his injuries. Salvatore Luca formerly resided at 2075 Random Road. For the first few months he lived in the house, Luca shared the downstairs with Tony Caruso. The two men renovated the house to make it habitable. Caruso left prior to the appellant moving into the house. The appellant used the house as a sort of storage locker, but actually stayed there very little. Luca testified that the appellant has done plumbing and other work for Luca's mother. Luca is friendly with Michelle Bertone. Luca believed the appellant to be depressed for various reasons, such as: the appellant's truck with all of his tools was stolen from in front of the house; he was in constant litigation regarding child support and visitation; he changed jobs to one which paid less money, but had a regular pay stub; and his wages -7- were garnished. Luca helped the appellant obtain a new truck and assisted the appellant in finding side jobs as a laborer for additional money. The appellant left his employment performing cement work with Rocky Carsarrio to work at the House of Lights. This job enabled him to have a regular pay stub which could be garnished by the Lake County Child Enforcement Agency. Luca also intimated that the appellant believed that he, Luca, was making advances to Ms. Szymczak. Luca knew that the appellant and Ms. Szymczak were dating. Ms. Szymczak telephoned the house on a daily basis, and Luca spoke with her frequently. On May 31, 1996, Luca had dinner and then went to Marc Mazzarino's home. The appellant showed up at the Mazzarino home between 6:00 and 6:30 p.m. and attempted to fight with Luca. Mrs. Mazzarino intervened and the appellant left. The appellant was upset that Luca had been speaking with Ms. Szymczak. Luca spent the night at his mother's residence as was his custom on the weekends during the summer. Luca later learned that on that day the appellant was laid off from his job at the House of Lights. Luca first learned of the explosion from Ms. Bertone, who telephoned him at approximately 2:30 a.m. He went to the scene, and co-operated with the investigating officers. He informed lieutenant Kovacic that when he and Tony Caruso first moved into the house there was no cap on the gas line. Caruso painted the kitchen and tapped and capped the line. The kitchen was used on a daily basis, and Luca was sure the line was capped. Luca testified that a few days prior to the fire, Luca and Mazzarino were lunching -8- in the kitchen and the subject of the capped line arose. This testimony was later changed, and Luca stated that he was not sure that they actually spoke on the subject of the gas line, but he was sure that if it had not been capped, the subject would have come up. Luca and Karen Bayless still maintain an off and on relationship , although at the time of the trial it was off. Luca has maintained a friendship with Ms. Bertone, and she has telephoned him at his mother's home on other occasions prior to the night of the fire. He knew, because of the bitter divorce and custody issues, that his friendship with Ms. Bertone was painful for the appellant. Luca had agreed to testify in the adoption proceedings filed by Ms. Bertone's current husband. Luca testified that he did not telephone Ms. Bertone during the evening prior to the fire. Michelle Bertone testified that the appellant was a proficient plumber and that he converted their house from oil to gas, and that the gas company inspected and approved the results. Ms. Bertone also testified as to the breakup of her marriage to the appellant. The appellant had a drinking problem, changed jobs frequently, and had a temper which caused him to throw things. Ms. Bertone testified that she was afraid of the appellant and that he shoved her a few times. One night the police were called, but the charges were dropped. Later, in 1993, the appellant broke her nose. He was subsequently convicted of domestic violence. Another time the appellant tried to choke her and threatened to kill her. The -9- appellant was tried, found guilty, and was incarcerated. Ms. Bertone testified that on one occasion the appellant attempted suicide. On the evening of the fire, Ms. Bertone recieved a telephone call from Luca informing her that the appellant and Luca had an argument. Luca informed her that he was staying with his mother and gave her the telephone number. He then warned her to be careful since the appellant was to visit with Lucas the next day. Shortly after 1:00 a.m. on June 1, 1996, a nurse from the hospital telephoned Ms. Bertone and asked for Lucas. Through this telephone call Ms. Bertone learned that the appellant had been injured in the fire. She telephoned Luca, and then she telephoned the hospital and spoke with the appellant. Ms. Bertone testified that the appellant apologized for everything that occurred during the divorce. When Ms. Bertone asked about the upstairs tenant, the appellant responded that he believed the man was home because the car was in the driveway. When she asked how the explosion occurred, the appellant stated that he could not sleep, that he lit a cigarette and that was all he knew. Ms. Bertone testified that while she loaned Ms. Bayless money, as a friend, she never offered Ms. Bayless money to testify in Domestic Relations Court regarding the custody and visitation issues. Ms. Bertone also admitted on cross-examination that she had the appellant served with the adoption petition while he was still in the hospital. Ultimately, the appellant consented to the adoption. -10- The appellant presented five witnesses on his behalf. Marc Mazzarino testified that he may have noticed the gas pipe in the appellant's apartment, but cannot recall whether or not it was capped; and that no conversation ever occurred on the occasion he had lunch in that kitchen regarding the gas pipe. Tony Caruso testified that when he lived in the house, he laid new flooring in the kitchen and painted the walls. The gas line was not capped, and while he did paint the portion of the gas pipe which was visible, he did not cap the line. Karen Bayless testified that her son's father, Salvatore Luca, pays her rent. She and Luca were together off and on for approximatelyten years. At one point she dated Tony Caruso. She knows Ms. Bertone through the appellant. She was named as a witness in the divorce, but was never called to testify. One afternoon in October, 1994, Caruso drove her to see Ms. Bertone. Tony first entered the house, and then left to smoke a cigarette. The purpose of the visit was to inform Ms. Bertone of information Ms. Bayless knew regarding the appellant. Ms. Bertone did not give her money that day, but later that summer Ms. Bertone lent her money. Caruso returned to the stand and stated that while he accompanied Ms. Bayless to the residence of Ms. Bertone, he never entered the house. They specifically went to see Ms. Bertone to obtain money. He waited in the car approximately twenty minutes. When Ms. Bayless rejoined him she had three or four hundred dollars. Ms. Bayless stated that she had been paid to testify -11- against the appellant in court. The appellant took the stand on his own behalf. Much of his testimony was given to refute evidence given by Ms. Bertone and Sal Luca. The appellant stated that Ms. Bertone married her current husband, whom she began dating during their marriage, two weeks after the divorce was final. Visitation with his son Lucas was a problem from day one of their separation. The appellant stated that although he recognized that child support and visitation are not linked, he failed to pay child support since Ms. Bertone kept denying him visitation with his son. Ms. Bertone also frequently had him charged with domestic violence and that in one instance, on the advice of counsel, he pled guilty. The next time he was charged, he was acquitted by the jury. Every time Ms. Bertone charged him with domestic violence, she also obtained an order denying visitation. The appellant characterized this maneuver as a ploy to deny him visitation. Ms. Bertone had a second degree in Ka Ju Kenpo and a first degree in Tae Kwon Do. The appellant stated that Ms. Bertone had his son's name changed without notifying him even though she knew he was residing at the Random Road address. Ms. Bertone obtained service through publication in a Lake County newspaper. Ms. Bayless called him and offered to testify for him in the Domestic Relations case if he paid her. The appellant stated that he never attempted suicide; that he was terminated at the House of Lights due to lack of business; that he obtained new employment the same day and that the new job was an increase in pay; that Ms. -12- Szymczak requested he inform Luca to leave her alone; that he believed Luca was trying to move in on his girlfriend like he did with everyone else; that Mazzarino originally dated Ms. Bayless, but then Luca began seeing her; and that Ms. Bertone contacted his employer to obtain information on him. The appellant testified that visitation with Lucas had increased from two hours and that in another two weeks he would be up to eight hours. The appellant testified that the evening of the fire he counted the Discovery Zone tickets he and his son had accumulated. They needed a few more in order to acquire a toy Lucas wanted, and the appellant believed that after the coming Saturday's visitation they would have enough tickets. He also wrote the letter to Ms. Szymczak which was read into evidence. Although the letter did not accomplish what he had hoped, he was only worried about how long it would take them to reconcile. He then purchased a six pack of beer and sat outside to watch the people at the Art-Walk on Murray Hill. He drank only two beers and then went home at about 9:30 p.m. He placed a third beer next to the couch with his cigarettes and lighter. He began to watch television and wait for Luca to return home. He fell asleep and when he woke up the VCR clock said 12:21 a.m. He lit a cigarette and the house caught on fire. At no time did he smell gas in the house. He is absolutely positive that the gas pipe in the kitchen was not capped. He assisted Caruso when the kitchen and bath were renovated and neither he nor Caruso capped the gas line. When he lit the cigarette, the air ignited just like a gas line ignites. -13- He heard a woosh and ran out. The fire was bright orange. He received burns to his hands, face, shoulders, legs, and waist. Everything he owned was in the house. He had no insurance. He underwent a skin graft operation and needs another. He was admitted to the hospital and was given morphine and was also placed on a morphine drip IV. When they asked for his next of kin, he gave them his son's telephone number. The appellant testified that he was not depressed over losing his job because he had secured his old job back. The appellant testified that he did not turn the gas valve in the kitchen to the on position and that he did not open the basement valve either. He would not try to kill himself because he had too much going, his visitation with his son was increasing; and because it was summer he had work. The appellant knew Mr. Lovey was home that evening and that they had a cordial relationship. On cross-examination the appellant testified that he is a good plumber and that he has put in approximately four gas lines. At the time he did renovation work in the house he was not living there. He informed Sal at that point that the gas line in the kitchen should be capped. When he lived there he never capped the line. The appellant sets forth four assignments of error. The first assignment of error: DAVID FISKO WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR AGGRAVATED ARSON ON INSUFFICIENT EVIDENCE OF THE MENS REA REQUIRED. The appellant argues that there was no direct evidence showing -14- that he knowingly caused the explosion in a suicide attempt. The appellant contends that the evidence upon which the conviction rests consists of illogical inferences which have no probative value. The appellant asserts that the trial court should have granted his motion for acquittal because the circumstantial evidence was insufficient to support a conviction. When the sufficiency of the State's evidence is challenged, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams (1995), 73 Ohio St.3d 153 citing to Jackson v. Virginia (1979), 443 U.S. 307 and State v. Waddy (1992), 63 Ohio St.3d 424. The Supreme Court set forth the test for appellate review of the sufficiency of the evidence and for manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. Jenks, supra. In addition, the Jenks Court held at syllabus one: -15- Circumstantial evidence and direct evidence inherently possess the same probative value and therefor should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. *** To uphold a conviction pursuant to R.C. 2909.0, the State is required to prove that no person, by means of fire or explosion, shall knowingly: 1) create a substantial risk of serious physical harm to any person; or, 2) cause physical harm to any occupied structure. In the case sub judice, the State introduced evidence that at the time of the explosion the appellant was depressed; that he lost his job that day; that he had a fight with his longtime friend and roommate that day; that his girlfriend had ended their relationship that day; that there were severe and continuous difficulties surrounding the visitation of his son; that his ex-wife was attempting to have his parental rights severed by having her current husband adopt the appellant's son; that the appellant had previously done renovation work on the house which exploded; that the appellant was proficient at plumbing; that the appellant knew the gas line in the kitchen was uncapped; and that the explosion occurred when he was home. The State presented evidence upon which a jury could reasonably conclude that all the elements of the offense had been proven beyond a reasonable doubt. The evidence, if believed by the trier of fact, was sufficient to support the appellant's conviction for aggravated arson. -16- The appellant's first assignment of error is overruled. The second assignment of error: DAVID FISKO WAS DENIED DUE PROCESS WHEN THE COURT ALLOWED THE STATE TO ARGUE THAT EVIDENCE ADMISSIBLE ONLY TO PROVE MOTIVE COULD PROVE BEHAVIOR IN CONFORMITY WITH CHARACTER AS PROHIBITED BY EVID.R. 404(B). The appellant argues that evidence of the appellant's prior suicide attempt was used improperly to mislead the jury and to indicate that the appellant acted in conformity with prior behavior. The appellant contends that the court's cautionary instruction was inadequate to limit the jury's consideration of the other acts evidence. Subsequent to the testimony of Ms. Bertone regarding the appellant's prior suicide attempt, the court stated to the jury: Ladies and gentlemen, at this point I'm going to give you a cautionary instruction. Evidence of other wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, may be admissible for limited purposes as such as prove (sic) of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Proceed. (T. 402, 403). Evid.R. 404(B) permits the use of evidence of other crimes, wrongs or acts only under certain conditions. Such evidence is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or -17- accident. The appellant's bald assertions notwithstanding, any prejudice to the appellant by permitting the evidence was cured when the court gave the appropriate cautionary instruction to the jury. A jury is presumed to have followed the trial court's cautionary instructions and where a defendant has failed to present evidence overcoming the presumption, the assignment of error will be overruled. State v. Aqu-Simmons (April 24, 1997), Cuyahoga App. No. 70035, unreported. The appellant's second assignment of error is overruled. The third assignment of error: IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ALLOW THE PROSECUTOR'S IMPROPER CONDUCT DURING CLOSING ARGUMENT WHEN THAT CONDUCT DENIED APPELLANT'S RIGHT TO A FAIR TRIAL AND RESULTED IN A CONVICTION BASED ON IMPROPER INFERENCES, SYMPATHY AND REVENGE. The appellant asserts that he would have been acquitted save for the improper closing argument of the prosecution. Specifically, the appellant states that: 1) the prosecutor relied on other acts evidence pertaining to suicide; 2) the prosecutor improperly used character evidence by stating that the appellant had a victim complex ; and, 3) the prosecutor made an improper appeal to sympathy in his description of the victim's injuries. The Supreme Court has held that the conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the defendant of a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239. See also State v. Keenan (1992), 66 Ohio St.3d 19. Closing arguments are not evidence, but are -18- intended only to advise the jury as to what counsel expects the evidence to show. State v. Turner (1993), 91 Ohio St.3d 153. The Supreme Court also noted that the effects of any prosecutorial misconduct must be considered in the context of the entire trial, one factor relevant to the due-process analysis is whether the misconduct was an isolated incident in an otherwise properly tried case. Keenan, supra at 410. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper, and if so, whether they prejudicially affected a substantial right of the defendant. State v. Johnson (May 25, 1995), Cuyahoga App. No. 67286, unreported. In deciding whether or not the defendant was denied a fair trial, the court must determine whether the fact finder would have found the defendant guilty absent the prosecutor's remarks. State v. Smith (1984), 14 Ohio St.3d 13; Maurer, supra. In addition, this court notes that the failure to raise objections to improper arguments constitutes a waiver, unless the errors are cumulatively so egregious that the appellant was denied due process. Keenan, supra. In each instance raised by the appellant, no objection was raised by counsel. This court will proceed, arguendo, as though the errors, if substantiated, were sufficient to deny the appellant due process. In the first instance cited by the appellant, the prosecutor stated that The following witnesses gave you insights which you didn't know before, into the defendant's personality, and how he reacts when he's in certain similar situations. (T. 760.) While -19- this statement is improper, it must be considered in the context of the entire trial. It is crucial to remember that the court previously gave a cautionary instruction to the jury regarding the use of other acts evidence, and that the appellant has been unable to substantiate his allegation that somehow the jury ignored the instruction. Given the court's directive to the jury on this issue, no prejudice accrued to the appellant. The appellant next contends that the prosecutor improperly used character evidence by stating that the appellant had a victim complex. While this argument certainly was not flattering to the appellant, the prosecutor did no more than recap the evidence which had been admitted during trial. Lastly, the appellant contends that the prosecutor made an improper appeal to sympathy in his description of the victim's injuries. The State was required to prove that Mr. Lovey suffered substantial physical harm. This portion of the prosecutor's argument was not excessive under the facts of this case. The appellant's third assignment of error is overruled. The fourth assignment of error: DAVID FISKO WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL LAWYER BROUGHT UP PRIOR DOMESTIC VIOLENCE OFFENSES AND FAILED TO OBJECT TO EXTENSIVE MISCONDUCT BY THE PROSECUTOR. The appellant argues that he was rendered ineffective assistance of counsel when counsel opened the door to evidence regarding the issue of the appellant's past domestic violence and by counsel's failure to object during the prosecutor's closing -20- argument. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. In the case sub judice, the decision to bring up the subject of the appellant's past history of domestic violence must be considered as a trial tactic. Since the evidence may have been admissible to prove motive, intent, or lack of mistake, counsel's decision to raise the issue first was a credible tactic. Alternately, the appellant's counsel may indeed, as the State suggests, have raised the issue in order to discredit the testimony of Ms. Bertone. While this decision ultimately led to the admission of damaging testimony, the appellant did not suffer substantial prejudice and was not denied a fair trial. Finally, the appellant was not prejudiced by counsel's failure to raise objections during closing argument. As this court held in the third assignment of error, assuming that objections had been -21- raised, the State's argument was not so prejudicial as to deny the appellant a fair trial. Since there was no prejudice to the appellant, counsel did not fail in its essential duty. The appellant's fourth assignment of error is overruled. Judgment 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. ANN DYKE, J., CONCURS, WITH ATTACHED CONCURRING OPINION; and, DIANE KARPINSKI, J., CONCURS WITH MAJORITY AND CONCURRING OPINION. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO COUNTY OF CUYAHOGA NO. 71685 STATE OF OHIO : : Plaintiff-Appellee : : C O N C U R R I N G -vs- : O P I N I O N : DAVID L. FISKO : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 DYKE, J., CONCURRING: I agree with the majority's decision. I write separately to express my concern over the investigators' interrogation of appel- lant in the hospital. Appellant was under the influence of morphine and had second and third degree burns over 20% of his body. It was possible that appellant did not voluntarily waive his Miranda rights. See State v. Slagle (1992), 65 Ohio St.3d 597, 599, State v. Stewart (1991), 75 Ohio App.3d 141, State v. Payton (May 16, 1997), Portage App. No. 93 P 01021, unreported at 11. No motion to suppress was filed. The investigators testified that they received permission to interview appellant from the nurse or other person in charge , who said appellant was coherent . The investigators were aware that appellant was on pain medication. The investigators said appellant, seemed fine, except for the burns . Appellant said he was on a morphine drip, morphine pills and injections. Appellant was read his Miranda rights, and agreed to talk to the investigators. -2- I believe that statements by the police that the defendant seemed rational are not sufficient, by themselves, to show that a defendant in the hospital and on medication was capable of waiving his rights. Police officers do not have medical knowledge and are not qualified to make a determination that a person on prescription pain killers is competent. There should be evidence that the investigatorsreceived permission from a doctor or nurse who found the defendant to be capable of understanding and waiving his rights. A notation in the medical records that such permission was granted would be sufficient evidence. In this case, the nurse or other person in charge simply stated that appellant was coherent . This was not sufficient, because a person may sound coherent, but actually is incapable of making a serious decision due to the effect of the drugs. Addi- tionally, it is unclear if the nurse or other person in charge had first hand knowledge of the defendant's condition and medica- tions. Case law in Ohio dealing with alcohol and marijuana hold that the police officers' testimony that the defendant appeared alert and not impaired is sufficient to counter the defendant's claim that his will was overborne by the alcohol or marijuana. See Slagle, supra, State v. Dennis (May 8, 1996), Summit App. No. 17156, unreported. These cases are distinguishable, because police officers are familiar with the effects of alcohol and marijuana, but may be unfamiliar with the effects of a prescription drug administered in a hospital or a combination of such prescription -3- drugs. Additionally, it is a different situation when the defen- dant claims to have taken drugs, and there is no other proof that he did so. See State v. Eley (1996), 77 Ohio St.3d 174, State v. Otte (1996), 74 Ohio St.3d 555. Appellant testified that he was drugged up , and had trouble remembering what was said in the interrogation. However, appellant never stated that his agreement to speak to the police was not voluntary. No motion to suppress was made, and no arguments were ever raised that the confession was not voluntary. We can not say that plain error occurred in regards to the admission of the interrogation, because it does not appear from the face of the record that error was committed. See State v. Bock (1984), 16 Ohio App.3d 146. The record does not clearly demonstrate that appellant did not voluntarily speak with the police, as appellant himself never asserted his discussion with the police was involuntary. .