[Cite as State v. Colvin,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26063

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANDRE COLVIN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 07 11 3884 (C)

DECISION AND JOURNAL ENTRY

Dated: October 24, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Anthony Jackson was beaten to death by a group of men on Bachtel Avenue in

Akron. The State charged Andre Colvin with murder, felony murder, and felonious assault.

Following a trial, the jury convicted Mr. Colvin of felony murder and felonious assault, but

acquitted him of purposeful murder. Mr. Colvin has appealed. This Court affirms because Mr.

Colvin was not entitled to jury instructions on the lesser-included offenses of reckless homicide

and assault, the evidence was sufficient to support his convictions, and an isolated improper

comment by the prosecutor during closing argument was not plain error.

BACKGROUND

{¶2} Anthony Jackson was beaten to death in the street outside an after-hours house in

Akron where he and a friend had been celebrating Mr. Jackson’s thirty-second birthday. The

evidence presented at trial indicated that Mr. Jackson’s friend, Lamar Stallings, became involved 2

in a physical fight with a woman named Donielle Leondra Turner after Mr. Stallings spilled a

drink on her at the bar. When Ms. Turner’s boyfriend became involved in defense of Ms.

Turner, Mr. Jackson became involved in defense of Mr. Stallings. There was some evidence that

someone may have called a friend for help with the dispute. Within a short time, two cars pulled

up, blocking the street in front of the after-hours house. Several men jumped out of the cars and

began fighting Mr. Stallings and Mr. Jackson. Mr. Stallings ran from the scene, and the men

turned their attention to Mr. Jackson.

{¶3} According to witnesses, Mr. Colvin was one of the men who jumped from the

cars that pulled up and blocked the street. All of the witnesses testified that they saw a group of

men attacking a man who was lying in the street. Four witnesses identified Mr. Colvin as a

participant in the attack. One said she saw Mr. Colvin kicking Mr. Jackson. Another witness

said she saw Mr. Colvin stomping on Mr. Jackson. The medical examiner testified that Mr.

Jackson died of brain swelling and herniation caused by blunt force trauma to the head. He also

testified that some of the injuries were likely inflicted after Mr. Jackson had become comatose.

SUFFICIENCY OF THE EVIDENCE

{¶4} Mr. Colvin’s second assignment of error is that the trial court incorrectly denied

his motion for judgment of acquittal under Rule 29 of the Ohio Rules of Criminal Procedure.

Under Criminal Rule 29(A), a defendant is entitled to a judgment of acquittal on a charge against

him “if the evidence is insufficient to sustain a conviction . . . .” Whether a conviction is

supported by sufficient evidence is a question of law that this Court reviews de novo. State v.

Thompkins,

(1997); State v. West, 9th Dist. No. 04CA008554, 2005–

Ohio–990, ¶ 33. We must determine whether, viewing the evidence in a light most favorable to 3

the prosecution, it could have convinced the average finder of fact of Mr. Colvin’s guilt beyond a

reasonable doubt. State v. Jenks,

, paragraph two of the syllabus (1991).

{¶5} Mr. Colvin has argued that there was insufficient evidence to support his

convictions for felony murder and felonious assault. Under Section 2903.02(B), “[n]o person

shall cause the death of another as a proximate result of the offender’s committing or attempting

to commit an offense of violence that is a felony of the first or second degree . . . .” The

predicate offense of violence in this case was a second-degree charge of felonious assault under

Section 2903.11(A)(1) of the Ohio Revised Code. That section provides that “[n]o person shall

knowingly . . . [c]ause serious physical harm to another . . . .” R.C. 2903.11(A)(1). “A person

acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause

a certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

{¶6} Mr. Colvin has argued that the evidence showed he was present at the scene of

Mr. Jackson’s death, but it was insufficient to show that he caused him serious physical harm or

that he caused his death. His argument is based on the fact that none of the witnesses who

testified that Mr. Colvin was among the men kicking and stomping on Mr. Jackson were able to

identify what part of Mr. Jackson’s body was struck by the blows Mr. Colvin delivered. Because

there was no testimony that Mr. Colvin struck Mr. Jackson’s head, Mr. Colvin has argued that

there was not sufficient evidence to convict him of felony murder and felonious assault.

{¶7} George Sterbenz, the medical examiner who conducted the autopsy, testified that

Mr. Jackson did not have obvious injuries over his torso and extremities. He did have a number

of bruises and scrapes concentrated in the area of his face and head. Dr. Sterbenz noted a broken

nose, tears inside the mouth, bruising in the deep muscle of the tongue, and “extensive” deep 4

facial contusions. He said that Mr. Jackson died of multiple blows to the head, which resulted in

concussive injuries to the brain, which caused bleeding and swelling of the brain. He showed

images of large areas of bruising on Mr. Jackson’s scalp and down into the surface of the bone

indicating “multiple impacts overlapping each other . . . dozens, dozens of impacts to Mr.

Jackson’s head.” The doctor explained that the bruising was quite deep and extensive over the

upper shoulders approaching the neck, but diminished below the shoulders.

{¶8} Four people testified that Mr. Colvin participated in the attack of Mr. Jackson.

Lanetta Reed testified that she saw Mr. Colvin running over to join the group of people “kicking

and stomping and hitting” Mr. Jackson while he was on the ground. Kendra Horton testified that

she was involved in the fight outside the after-hours house. She said that she saw a group of ten

to fifteen people kicking and hitting a person on the ground in the street. She admitted that she

ran up to the group and kicked the person on the ground once or twice even though she did not

know the identity of the victim. She said that a crowd of people were kicking and hitting the

man with fists and shoes. She identified Mr. Colvin as one of the men who was attacking the

victim. Ms. Horton also testified that Mr. Colvin drove her from the scene when the crowd

dispersed.

{¶9} Delicia Davis testified that she saw Mr. Colvin jump out of one of the two cars

that pulled up after the fight began. She said that Mr. Colvin shot a gun, causing her to run back

inside the house and hide in an upstairs closet. When she came out of the closet and looked out

the window, she saw Mr. Jackson on the ground “getting stomped on by a lot of people.” She

said that the group of people propped Mr. Jackson up a couple of times in order to kick him

again. Ms. Davis testified that she saw Mr. Colvin kicking Mr. Jackson while he was on the

ground. Chantel Dortch also testified that Mr. Colvin arrived in one of the two cars that pulled 5

up and blocked the street after the fight began. She said that Mr. Colvin was one of five or six

men who stomped on Mr. Jackson while he was on the ground.

{¶10} Mr. Colvin has pointed out that none of these witnesses claimed to be sober at the

time of the attack and several admitted to being high as well as drunk. Mr. Colvin’s argument in

this regard goes to the weight of the evidence rather than its sufficiency.

Felonious Assault

{¶11} For a conviction of felonious assault, the State had to present sufficient evidence

that Mr. Colvin “knowingly . . . [c]ause[d] serious physical harm to another . . . .” R.C.

2903.11(A)(1). “A person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B). In this case, the State presented evidence that, if believed, was sufficient to allow a

reasonable juror to conclude beyond a reasonable doubt that Mr. Colvin struck Mr. Jackson in a

manner that he was aware would probably cause serious physical harm and it did in fact cause

Mr. Jackson serious physical harm. Therefore, there was sufficient evidence to support Mr.

Colvin’s conviction of felonious assault.

Felony Murder

{¶12} Mr. Colvin was acquitted of purposely causing Mr. Jackson’s death. He was

convicted of “caus[ing] the death of another as a proximate result of . . . committing or

attempting to commit [felonious assault] . . . .” R.C. 2903.02(B). In regard to felony murder, the

question is whether the State presented sufficient evidence that a reasonable juror could conclude

that Mr. Colvin had caused Mr. Jackson’s death “as a proximate result” of committing or

attempting to commit felonious assault. R.C. 2903.02(B). According to the medical examiner, 6

there is no way to tell which of more than three dozen blows to the head caused Mr. Jackson’s

death. Mr. Colvin’s primary argument is that there is not sufficient evidence to convict him of

felony murder because there is no evidence that he struck Mr. Jackson in the head as opposed to

some other part of his body.

{¶13} “The very purpose of the felony murder doctrine is to utilize the underlying

felony as a substitute for the defendant’s murderous intent and thereby raise an unintentional

killing to the level of murder.” State v. Mays, 2d Dist. No. 24168,

(quoting

People v. Cahill,

(N.Y. 2003)). “[D]eath is the ‘proximate result’ of [a]

[d]efendant’s conduct in committing the underlying felony offense . . . [if it is] a direct, natural,

reasonably foreseeable consequence, as opposed to an extraordinary or surprising consequence,

when viewed in the light of ordinary experience.” State v. Rodrigues, 9th Dist. No.

11CA009971,

(quoting State v. Chapman,

, 2010–

Ohio–5924, ¶ 24 (9th Dist.)). “Under the ‘proximate cause theory,’ it is irrelevant whether the

killer was the defendant, an accomplice, or some third party such as the victim of the underlying

felony or a police officer. Neither does the guilt or innocence of the person killed matter. [A]

[d]efendant can be held criminally responsible for the killing regardless of the identity of the

person killed or the identity of the person whose act directly caused the death, so long as the

death is the ‘proximate result’ of Defendant’s conduct in committing the underlying felony

offense . . . .” State v. Mills, 5th Dist. No. 10CA119,

(quoting State v.

Dykas,

,

, ¶ 27).

{¶14} Mr. Colvin can be held criminally responsible for Mr. Jackson’s death under

Ohio’s felony murder statute without proof that he dealt the death blow to Mr. Jackson or even

that he struck Mr. Jackson’s head while allegedly kicking, stomping, and/or punching him. Mr. 7

Jackson’s death was a reasonably foreseeable consequence of participating in the felonious

assault, regardless of who delivered the final blow that caused Mr. Jackson’s death. The State

presented sufficient evidence that Mr. Jackson’s death was the proximate result of Mr. Colvin, in

concert with a group of people, committing felonious assault. Therefore, the evidence is

sufficient to support Mr. Colvin’s convictions for felony murder and felonious assault. His

second assignment of error is overruled.

JURY INSTRUCTIONS

{¶15} Mr. Colvin’s first assignment of error is that his trial lawyer was ineffective for

failing to request jury instructions on the lesser-included offenses of assault and reckless

homicide. Even if such instructions would have been appropriate based on the facts of the case,

a “[f]ailure to request instructions on lesser-included offenses is a matter of trial strategy and

does not establish ineffective assistance of counsel.” State v. Griffie,

(1996). Although there is risk involved in not requesting an instruction on a lesser-included

offense when the evidence supports it, the pay-off can also be substantial, that is, acquittal if the

strategy prevails. Mr. Colvin’s lawyer was not ineffective for failing to request jury instructions

on lesser-included offenses.

{¶16} Mr. Colvin has alternatively argued that, despite his lawyer’s failure to object to

the absence of such instructions, the trial court’s failure to give the jury instructions for assault

and reckless homicide was plain error. Because Mr. Colvin’s lawyer did not object to the trial

court’s failure to give the instructions before the jury retired, he is limited to arguing plain error

on appeal. State v. Lynn,

,

; Crim. R. 30(A). “[N]otice

of plain error . . . is to be taken with the utmost caution, under exceptional circumstances and 8

only to prevent a manifest miscarriage of justice.” State v. Clayton,

(1980)

(quoting State v. Long,

, paragraph three of the syllabus (1978)).

{¶17} Reckless homicide is a lesser included offense of felony murder. State v. Alston,

9th Dist. No. 05CA008769,

. Assault is a lesser included offense of

felonious assault. State v. Cruz, 9th Dist. No. 03CA0031-M,

, ¶ 21. “Even

though an offense may be a lesser included offense, a charge on the lesser offense is required

‘only where the evidence presented at trial would reasonably support both an acquittal of the

crime charged and a conviction upon the lesser included offense.’” State v. Trimble,

,

(quoting State v. Thomas,

, paragraph two

of the syllabus (1988)). In deciding whether to instruct the jury on a lesser-included offense, the

trial court must view the evidence in a light most favorable to the defendant.

“The lesser-

included-offense instruction is not warranted every time ‘some evidence’ is presented to support

the lesser offense.”

“Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to

reasonably reject the greater offense and find the defendant guilty on a lesser included (or

inferior degree) offense.’”

(quoting State v. Shane,

(1992)).

{¶18} Mr. Colvin has argued that he was entitled to instructions on reckless homicide

and assault because, based on the lack of evidence regarding which part of Mr. Jackson’s body

was impacted by the blows delivered by Mr. Colvin, the jury could have found that Mr. Colvin

caused or attempted to cause Mr. Jackson some harm, as required to support a conviction for

assault, but did not cause him serious physical harm, as required for a conviction of felonious

assault. On that basis, Mr. Colvin has argued, the jury could have found him guilty of assault

and recklessly causing the death, but not guilty of felony murder and felonious assault. 9

{¶19} Mr. Colvin was not entitled to a reckless homicide instruction because there is no

reasonable view of the evidence that would have allowed the jury to reject the felony murder

charge. Similarly, he was not entitled to an assault instruction because there is no reasonable

view of the evidence that would have allowed the jury to reject the felonious assault charge.

Four people testified that Mr. Colvin participated in beating a man to death while that man was

incapacitated in the street. One witness testified that all of the participants seemed equally

vicious in their attack. None of the witnesses testified that Mr. Colvin was not participating in

the attack.

{¶20} The jurors received a complicity instruction allowing them to find Mr. Colvin

guilty of felony murder and felonious assault if they found that he aided or abetted another in the

commission of those crimes. See R.C. 2923.03(A)(2). The trial court explained to the jury that

aided or abetted “means supported, assisted, encouraged, cooperated with, advised or incited.”

Regardless of where Mr. Colvin struck Mr. Jackson, there is no reasonable view of the evidence

that would have permitted a jury to conclude that Mr. Colvin was not at least aiding and abetting

the group of men who continued to prop Mr. Jackson up and kick, stomp, and punch him even

after he lost consciousness. And there is no reasonable view of the evidence that would have

allowed the jury to conclude that Mr. Jackson’s death was not the proximate result of that

beating. Because no reasonable view of the evidence supported acquittal on the higher charges,

jury instructions for the lesser-included offenses of assault and reckless homicide were not

required under the facts of this case. See State v. Trimble,

,

. Mr. Colvin’s first assignment of error is overruled. 10

PROSECUTORIAL MISCONDUCT

{¶21} Mr. Colvin’s third assignment of error is that the prosecutor engaged in

misconduct that deprived him of a fair trial. “The test for prosecutorial misconduct is whether

the remarks were improper and, if so, whether they prejudicially affected the accused’s

substantial rights.” State v. Lollis, 9th Dist. No. 24826, 2010–Ohio–4457, ¶ 16 (quoting State v.

Diar,

, 2008–Ohio–6266, ¶ 140). Because Mr. Colvin’s lawyer did not

object to the prosecutor’s comments at the time, he is limited to arguing plain error on appeal.

State v. Veal, 9th Dist. No. 26005,

(citing State v. Smith,

,

). “As notice of plain error is to be taken with utmost caution and

only to prevent a manifest miscarriage of justice, the decision of a trial court will not be reversed

due to plain error unless the defendant has established that the outcome of the trial clearly would

have been different but for the alleged error.”

(citing State v. Kobelka, 9th Dist. No.

01CA007808,

, *2 (Nov. 7, 2001)).

{¶22} Mr. Colvin has argued that, during closing argument, the prosecutor repeatedly

presented his own opinion and made statements contrary to the law. After quoting some of the

closing argument, Mr. Colvin argued that the quotations demonstrate that the prosecutor

“consistently and repeatedly offered his opinion regarding the evidence, what was important [to]

the State and what the State cares about. He also offer[ed] his opinion regarding the credibility

of the witnesses – and ‘the air of credibility’ of one witness[.]” If Mr. Colvin believes that some

part of the quoted material contains misstatements of law, he has not pointed out what those

statements are or how they are incorrect. As part of a discussion of the complicity instruction,

the prosecutor told the jury that “we don’t care who had the gun” and that it did not matter how

many times Mr. Colvin kicked Mr. Jackson because the evidence showed that he participated in 11

the beating. Mr. Colvin did not make any argument to explain why he quoted certain passages

from the State’s closing argument, so it is unclear from the brief what Mr. Colvin believes is

improper about the quoted comments.

{¶23} Part of Mr. Colvin’s argument is that, during closing argument, the prosecutor

improperly commented on the credibility of a witness. See State v. Kirby, 9th Dist. No. 23814,

(citing State v. Smith,

(1984)). Although a

prosecutor is entitled to some latitude in closing, he “may not invade the realm of the jury by, for

example, stating [his] personal beliefs regarding guilt and credibility, or alluding to matters

outside the record.” State v. Baker,

,

(2d Dist.). A

prosecutor, however, is permitted to “comment freely on ‘what the evidence has shown and what

reasonable inferences may be drawn therefrom.’”

(quoting State v. Lott,

(1990)). In this case, the prosecutor told the jury that Lanetta Reed’s testimony had “an air

of credibility” because, although she voluntarily approached police with information about Mr.

Colvin’s involvement in the beating of Mr. Jackson in hopes of getting a deal on charges then

pending against her, she testified against Mr. Colvin even though she did not get the deal she

wanted. This comment falls into the category of describing what the evidence showed as

opposed to an expression of the prosecutor’s personal belief about the credibility of a witness.

Therefore, the comment about Ms. Reed’s testimony was not improper.

{¶24} Mr. Colvin has also argued that the prosecutor acted improperly by telling the jury

that Mr. Colvin had “almost confessed” to the police when they first spoke with him about his

involvement in Mr. Jackson’s death. During rebuttal closing argument, the prosecutor told the

jury that “[Mr. Colvin] almost confessed, he told detective Morrison, ‘you know what you know,

I don’t need to tell you.’ And that was after [the officer] told him . . . that people [had] said [he 12

was] involved.” Detective Morrison testified that, when he first talked to Mr. Colvin, he told

him that people said Mr. Colvin was present during the beating of Mr. Jackson and that he would

show Mr. Colvin’s picture to the witnesses. According to Detective Morrison, Mr. Colvin

responded by telling him, “I was not there and . . . no one is going to pick me out in any photos.”

Mr. Colvin has correctly argued that the prosecutor mischaracterized the detective’s testimony

by telling the jury that Mr. Colvin “almost confessed” to the officer.

{¶25} “The touchstone of the analysis [regarding prosecutorial misconduct] ‘is the

fairness of the trial, not the culpability of the prosecutor.’” State v. Lollis, 9th Dist. No. 24826,

, ¶ 16 (quoting State v. Diar,

,

, ¶ 140). In

this case, the prosecutor’s comment was improper, but it did not affect Mr. Colvin’s substantial

rights. It was an isolated comment that was not repeated. Further, given the fact that multiple

witnesses, including an accomplice, testified that Mr. Colvin participated in the beating death of

Mr. Jackson, it is not clear that the outcome of the trial would have been different in the absence

of this one comment from the prosecutor. See State v. Veal, 9th Dist. No. 26005, 2012-Ohio-

3555, ¶ 18 (“[T]he decision of a trial court will not be reversed due to plain error unless the

defendant has established that the outcome of the trial clearly would have been different but for

the alleged error.”) (citing State v. Kobelka, 9th Dist. No. 01CA007808,

, *2

(Nov. 7, 2001)). Mr. Colvin’s third assignment of error is overruled.

CONCLUSION

{¶26} Mr. Colvin’s first assignment of error is overruled because he was not entitled to

jury instructions regarding assault and reckless homicide. His second assignment of error is

overruled because the evidence is sufficient to support his convictions. His third assignment of 13

error is overruled because the prosecutor’s isolated improper comment during closing argument

was not plain error. The judgment of the Summit County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P. J. CONCURRING.

{¶27} I concur with respect to Colvin’s first assignment of error, but write separately to

address a point of concern. Although I agree that we must review for plain error Colvin’s

argument that the trial court erred by not instructing the jury on lesser-included offenses, I note

that this issue easily could have been resolved at the trial court level. Specifically, the trial court 14

need only have asked Colvin if he wanted instructions on lesser-included offenses. A court’s

obligation to instruct on a lesser-included offense when the evidence supports the instruction “in

no way affected defendant’s concomitant right, through his counsel, to waive the instruction.”

State v. Clayton,

(1980), fn. 2. If a defendant intentionally and voluntarily

foregoes a lesser-included offense instruction, he waives the instruction and may not later claim

that the trial court erred by failing to give it. State v. Feliciano, 9th Dist. No. 09CA009595,

, ¶ 7. Accordingly, as a matter of practice, a trial court can foreclose later

argument about lesser-included offense instructions by simply asking the parties about the

propriety of such instructions.

BELFANCE, J. CONCURRING IN JUDGMENT ONLY.

{¶28} I concur in the majority’s judgment. I disagree, however, that the

prosecutor’s statement that a witness’s testimony had an “air of credibility[]” was not

improper. Nevertheless, given the facts of this case, I would conclude that the statement

did not prejudice Mr. Colvin.

{¶29} Furthermore, I do not join the majority to the extent that it suggests, in

citing State v. Mills, 5th Dist. No. 10CA119,

, that “proximate cause”

and “proximate result” are synonymous.

APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.