[Cite as State v. Lash,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104310

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DAVERRICK J. LASH DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-596663-A

BEFORE: McCormack, P.J., E.T. Gallagher, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: June 1, 2017 ATTORNEY FOR APPELLANT

Kimberly Kendall-Corrall 1497 E. 361 Street, Suite 3 Eastlake, OH 44095

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Brian Radigan Maxwell Martin Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, P.J.:

{¶1} On January 30, 2015, a shooter gunned down 30-year-old William Burton

(“victim”) near the entrance of a bathroom at Club Fly High, a bar in Cleveland’s east

side. The bar was plagued with a history of crimes. Appellant Daverrick Lash

(“appellant” hereafter) was identified by a witness several days later as the shooter.

Another witness saw the shooter spit just before opening fire on the victim. A sample of

what appeared to be spit collected near the shooting matched appellant’s DNA. These

two eyewitnesses wavered subsequently in their testimony at trial. Despite the

wavering, the jury found appellant guilty of aggravated murder and other related offenses.

On appeal, appellant argues the state presented insufficient evidence to prove that he was

the shooter or that the murder was committed with prior calculation and design. After a

review of the record and applicable law, we affirm his convictions.

{¶2} Six months after the shooting at Club Fly High, a grand jury indicted

appellant for aggravated murder, murder, four counts of felonious assault,1 two counts

of inducing panic, and three counts of gun offenses. He pleaded not guilty to each count

and was tried before a jury. At the lengthy trial, the state produced 17 witnesses. The

defense did not present any witnesses. The state’s key witnesses were three patrons at

Club Fly High present on the night of the shooting: Jasmine Rogers, Kendra Mathis,

At trial, the state dismissed the counts of felonious assault relating to three bar patrons 1

Jasmine Rogers, Kendra Mathis, and Robert Bailey. and Robert Bailey. The testimony of the three reflects the following facts surrounding

the shooting and its aftermath.

Jasmine Rogers

{¶3} Jasmine Rogers testified that on the night of the incident, she arrived at

Club Fly High between 12:30 a.m. and 1:00 a.m after drinking at several other bars. The

victim, whom she knew, was playing pool with a woman, later identified as Kendra

Mathis. At one point, while Rogers was talking with another friend by the bar stools,

she saw a man with a gun standing about ten feet away. She thought he was just

showing the gun but then she heard six or seven gunshots. She saw the victim, who was

standing on one side of a pool table across from the bathroom, “dodge” toward the

bathroom and fall. She ran to help him. His mouth was filling with blood and soon he

stopped breathing. She tried to perform CPR on him but could not revive him. She

testified that there was no argument or any kind of altercation prior to the shooting. The

shooting occurred ten minutes after she entered the bar.

{¶4} Rogers testified that she went to the police station that night but was unable

to identify the shooter from several photo lineups. She acknowledged that when a police

officer came to her house to show her a photo lineup five days later, she identified

appellant as the shooter from the photo lineup. Under cross-examination, however,

Rogers wavered on her identification. She stated that she “cannot” identify the person

she circled in the photo lineup as the shooter because the shooting occurred well over a

year ago. She also stated that although she picked out appellant from the photo lineup, she only saw the shooter’s face from the side. She testified that she was now not sure

whether the person she once identified as the shooter in the photo lineup was the shooter.

{¶5} Detective Kevin Fischbach was the “blind” administrator who showed Rogers

the photo lineup at her house. He testified that she circled appellant’s picture and that he

wrote down the notation “this is the male whom shot victim” next to appellant’s picture to

reflect what Rogers said when identifying appellant from the photo lineup.

Kendra Mathis

{¶6} Kendra Mathis did not know the victim but played pool with the victim

before he was shot. She admitted she had been drinking all night. Her testimony about

the shooting was evasive and reflected her reluctance to testify for the state. She

testified that when she came out of the women’s restroom, “somebody spit and it went

right across my face.” She saw the person for a brief second. Soon after, she saw “a

man” pull out a pistol. When she saw the pistol, she made her way toward the front

door. She was facing the front door when she heard gunshots erupting behind her. She

ran outside and then ran back to the bar to grab her coat. She and other bar patrons were

then told to remain at the bar to be questioned by the police about the shooting.

{¶7} Mathis was unwilling to testify that the man who spat was the same person

who pulled out a pistol. She would only acknowledge that when interviewed by the

police, she mentioned she was almost spat upon before the shooting. When Mathis

repeatedly insisted she did not know whether the person who spat in her direction was the

shooter, the state asked the court to declare Mathis a hostile witness. The state then asked her if she had told the police after the shooting she saw the person who almost spat

on her pull a gun and shoot the victim. She claimed she did not remember. She

admitted she did not want to be a witness at this trial because she was trying to mind her

own business and to keep her family safe.

{¶8} In connection with the spit, Officer Matthew Nycz testified that the police

officers taped off the perimeter of the shooting and blocked off an area where the officers

were alerted to the presence of spit by the shooter. Detective James Raynard, a crime

scene detective, testified that, based on information given to him by other officers, he

found and collected two samples of what appeared to him to be saliva behind the pool

table. The saliva was still wet when collected. Testimony from a forensic scientist and

a forensic DNA analyst at the Cuyahoga County Medical Examiner’s Office showed that,

of the two suspected spit samples collected, one matched the victim’s DNA. The second

sample had a major and minor contributor. The major contributor matched appellant’s

DNA and the minor contributor was inconclusive due to insufficient information. The

forensic scientist acknowledged that she did not perform a specific test to determine if the

substance was saliva.

Robert Bailey

{¶9} Robert Bailey was at Club Fly High on the night of the incident. He

admitted he had been drinking since 6:00 p.m. that night. He testified that he, the

victim, and appellant, whom he knew as D.J., all knew each other. On that night, a

group of four amateur rap singers, including appellant, met up at Club Fly High before they went to a club called “2-1-6” to participate there at a rap show there. The “2-1-6”

club is located at E. 33rd Street and Lakeside, a mile and a half away and a seven-to-ten

minute drive away from Club Fly High. Although Bailey was not one of the performers,

he and some friends went to “2-1-6” as well. Bailey however was turned away from

“2-1-6” because he did not have an ID with him. Bailey was back at Club Fly High 20

or 30 minutes after he left “2-1-6.” Bailey testified he did not see appellant the rest of

the evening.

{¶10} After Bailey returned to Club Fly High, he saw the victim playing pool

with Kendra Mathis. At one point, the victim, pool stick in his hand, approached Bailey

and asked him to get a drink for him from the bar. Bailey walked to the bar to order

some drinks. All of a sudden, two shots went off. The bar security guard ducked.

Bailey ducked too. After a pause, four or five more shots went off. Everyone was

running. He saw the victim’s feet hanging out of the bathroom. Bailey testified he did

not hear any argument before the shooting. The shooting came very suddenly. He

estimated the shooting took place 30 or 40 minutes after he returned to Club Fly High.

{¶11} Bailey testified that, when questioned by the police who quickly arrived at

the scene, he told an officer that “the girl over there shooting pool with [the victim]

should know everything.” Bailey identified the girl as Mathis and testified that she was

“hysterical, crying, and looking nervous” when the police interviewed her. Bailey also

described the look on Mathis’s face as “you ain’t never seen nothing like that look, shocked * * * and sad.” He overheard her saying to an officer “the guy who did it spit

over there” while pointing to the floor.

The Investigation After the Shooting

{¶12} Officer Gary Bartell testified that on the night of the shooting, he and his

partner Matthew Nycz were patrolling an area near Club Fly High. They saw two black

males running out of the club’s front door in a panic, and they followed the fleeing men

for about 50 yards in their patrol vehicle before the two men split. One man jumped

over a fence, and the other man ran through a daycare center and disappeared. A

pedestrian approached the officers and informed them of the shooting inside the bar.

The officers went inside the bar and found the victim on the bathroom floor, with his

body sticking out of the bathroom. The victim’s friends were attending to him and

trying to revive him, but he was unresponsive. Officer Bartell interviewed several

people that night, including Bailey and Kendra Mathis.

{¶13} Officer Matthew Nycz testified similarly about the event but added that one

of the two man tripped and fell into a tree lawn in the snow before he ran through the

daycare center and disappeared. Officer Nycz later returned to the area and found a

black semiautomatic handgun in the snow.

{¶14} Detective James Raynard testified that he collected six shell casings from

the scene and it appeared six shots were fired. Dr. Dolinak, who performed an autopsy

on the victim, testified that there were a total of five gunshot wounds — two shots to the chest, one to the back, a superficial wound to the victim’s hip, and one shot to the right

hand. The order the wounds occurred was unknown, however.

{¶15} Sergeant Philip Christopher of the Cuyahoga County Sheriff’s Department

is in charge of inmate investigation in the county jail. One of his duties is to monitor the

inmate phone calls. He authenticated a three-way phone call made by appellant to a

female family member and a friend “Prez.” The phone call was played before the jury.

In the phone call, appellant mentioned the names of Jasmine Rogers and Kendra Mathis

and spelled out their names. “Prez” was heard saying, “ain’t even worried about the

dude, we worried about those females.”

{¶16} Appellant was found guilty of all counts and sentenced to life with the

possibility of parole after 25 years.

{¶17} On appeal, he raises eight assignments of error for our review. They state:

1. The evidence cannot sustain the element of prior calculation and design for the conviction of aggravated murder pursuant to Ohio revised code 2903.01(A).

2. The evidence is not sufficient to sustain the convictions.

3. The trial court denied appellant due process under the fourteenth amendment due to the fact his conviction for aggravated murder with specifications was against the manifest weight of the evidence and the jury’s verdict was inconsistent with the evidence and testimony presented at trial.

4. The trial court denied appellant due process under the fourteenth amendment by allowing prejudicially irrelevant evidence, denying appellant of a fair trial. 5. Appellant’s right to the effective assistance of counsel was violated when trial counsel failed to object to jury instruction to appellant’s prejudice, in violation of U.S. Constitution, amendment VI and Ohio Constitution, article I, section 10.

6. Appellant was denied his right to a fair trial when he was shackled in front of the jury in violation of U.S. Constitution amendment V, VI, VIII, IX, XIV and Ohio Constitution, article I, sections 1, 2, 5, 9, 10, 16 and 20.

7. Repeated acts of prosecutorial misconduct throughout the trial denied the appellant of a fair trial.

8. Cumulative errors deprived the appellant of his due process right to a fair trial.

We address these assigned errors out of order to best organize our analysis.

Excited Utterance

{¶18} The fourth assignment of error relates to Robert Bailey’s testimony that he

overheard Kendra Mathis say to a police officer “the guy who did it spit over there” while

pointing to the floor. The trial court, after a sidebar conference outside of the presence

of the jury, admitted Bailey’s testimony as excited utterance under Evid.R. 803(2).

Appellant claims the admission of that testimony was erroneous. We review a trial

court’s evidentiary rulings for abuse of discretion. State v. Long,

,

(1978).

{¶19} An excited utterance is a well-established exception to the hearsay rule.

Evid.R. 803(2) defines an excited utterance as a “statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the

event or condition.” “‘This exception derives its guaranty of trustworthiness from the

fact that declarant is under such state of emotional shock that his reflective processes have been stilled. Therefore, statements made under these circumstances are not likely to

be fabricated.’” (Emphasis sic.) State v. Taylor,

,

(1993), quoting Staff Note to Evid.R. 803(2).

{¶20} “The rationale for the admission of these statements is that the shock of the

event causes the declarant’s reflective process to be halted. Thus, the statement is

unlikely to have been fabricated and carries a high degree of trustworthiness.” (Citation

omitted.) State v. Butcher,

,

,

(11th Dist.).

{¶21} The courts have applied a four-part test to determine the admissibility of a

statement as an excited utterance:

“(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement of declaration spontaneous and unreflective,

(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervousexcitement to lose a domination over his reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs,

(c) that the statement or declaration related to such startling occurrence or the circumstances of such starling occurrence, and

(d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.” (Emphasis sic.) State v. Jones,

,

,

, quoting Potter v. Baker,

,

(1955), paragraph two of

the syllabus.

{¶22} Appellant claims that the second element of the excited-utterance test was

not satisfied in this case. He argues that Mathis’s testimony showed that she was kept at

the bar for questioning until 6 a.m. and, therefore, it could have been “hours” after the

shooting when she made the statement to the police, while no longer under the stress of a

startling occurrence.

{¶23} Regarding this element, it is well established that “[t]here is no per se

amount of time after which a statement can no longer be considered to be an excited

utterance. The central requirements are that the statement must be made while the

declarant is still under the stress of the event and the statement may not be the result of

reflective thought.” Taylor,

,

. In Taylor, the fact

that 12 hours had passed from the assault to the time of the declaration was found not to

be dispositive to the issue.

{¶24} Here, the statement made by Mathis and overheard by Bailey is a textbook

example of an excited utterance. Mathis experienced a most startling event — the

person she was playing pool with just moments earlier was suddenly and violently gunned

down. Bailey’s testimony reflects that when Mathis made the statement to an officer,

her demeanor at the time was “hysterical,” “crying,” and “nervous.” He described her

facial expression as “you ain’t never seen nothing like that look.” Even if it was hours after the shooting when Mathis made the statement to the police, Bailey’s testimony

shows that Mathis was still under such emotional shock that her statement was unlikely to

have been fabricated and carried a high degree of trustworthiness.

{¶25} Appellant also argues that the fourth element of the excited-utterance test

(an opportunity to observe personally the matter asserted in the statement) was not met

because Mathis testified at trial that she was not certain if the person who pulled out a

pistol was the same person who almost spat on her. Despite Mathis’s reluctance to

provide that specific testimony, her own testimony indicated she was nearby when the

spitting occurred and soon after she saw a man pulling out a pistol. Thus, her own

testimony reflects that she had an opportunity to personally observe the matter asserted in

her statement — even as she claimed at trial she did not see clearly if the person who

pulled the pistol was the person who spat. The trial court found Mathis’s statement met

the requisite elements of an excited-utterance. Affording deference to the trial court’s

evidentiary rulings, we do not find an abuse of discretion here.

Impeachment

{¶26} Under the fourth assignment of error, appellant also claims that Bailey’s

testimony of what he overheard Mathis stating to the police was inadmissible under

Evid.R. 607 (“Impeachment”). He claims that the state improperly used Bailey’s

testimony to impeach Mathis, who claimed she did not remember making the statement to

the police. Appellant argues that Evid.R. 607 would require the state to demonstrate surprise and affirmative damage before the trial court could admit the statement.

Evid.R. 607 states:

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(a), 801(D)(2), or 803.

(Emphasis added.)

{¶27} Appellant is correct that, pursuant to Evid.R. 607, a party calling the witness

may impeach the witness by means of a prior inconsistent statement only upon a showing

of surprise and affirmative damage. State v. Darkenwald, 8th Dist. Cuyahoga No.

83440,

. Evid.R. 607, however, by its own plain language, does

not apply to a statement qualified as a hearsay exception under Evid.R. 803 such as an

excited utterance. See State v. Bell, 8th Dist. Cuyahoga No. 92308,

, ¶

12 (statements admissible under Evid.R. 803 as excited utterances are exceptions to the

requirements of Evid.R. 607); State v. Martin, 8th Dist. Cuyahoga No. 73842,

, 12 (Apr. 22, 1999) (a witness’s statement was admissible as an

excited utterance under Evid.R. 803 and therefore Evid.R. 607 does not apply). As we

have explained in the foregoing, Bailey’s testimony regarding what he overheard Mathis

stating to the police qualified as an excited utterance under Evid.R. 803 and, therefore,

Evid.R. 607 is inapplicable here. The fourth assignment of error lacks merit.

Sufficiency of Evidence {¶28} Under the second assignments of error, appellant argues the state produced

insufficient evidence to prove he was the shooter. Under the first assignment of error,

appellant argues the state produced insufficient evidence to prove the element of prior

calculation and design for his conviction of aggravated murder. We address these

sufficiency claims together.

{¶29} When considering a challenge of the sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Jenks,

,

(1991), paragraph

two of the syllabus. “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 proven beyond a reasonable doubt.”

A reviewing court is not

to assess “whether the state’s evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” State v. Thompkins,

,

(1997).

Identity Evidence

{¶30} The trial testimony reflects that Jasmine Rogers, who had identified

appellant as the shooter in a photo lineup, did not identify appellant in court as the

shooter. She also wavered on her previous identification, stating that she only saw the

shooter from the side of his face. Kendra Mathis, who was overheard telling the police

“the guy who did it spit over there,” was equally evasive. She would only acknowledge at trial that she was almost spat on by a man prior to the shooting and that she saw a man

pull a pistol soon after. She was unwilling to testify that the two are the same person.

Furthermore, there was no physical evidence linking appellant to the weapon involved in

the shooting.

{¶31} The prosecution, however, presented a strong circumstantial case to

establish the identity of the shooter. In contrast to circumstantial evidence, direct

evidence exists when “a witness testifies about a matter within the witness’s personal

knowledge such that the trier of fact is not required to draw an inference from the

evidence to the proposition that it is offered to establish.” State v. Cassano, 8th Dist.

Cuyahoga No. 97228,

. Circumstantial evidence, on the other

hand, requires “the drawing of inferences that are reasonably permitted by the evidence.”

See also State v. Hartman, 8th Dist. Cuyahoga No. 90284,

(“[c]ircumstantial evidence is the proof of facts by direct evidence from which the trier of

fact may infer or derive by reasoning other facts in accordance with the common

experience of mankind”). “Although there are obvious differences between direct and

circumstantial evidence, those differences are irrelevant to the probative value of the

evidence — circumstantial evidence carries the same weight as direct evidence.”

Cassano at ¶ 13, citing State v. Treesh,

,

(2001).

Circumstantial evidence and direct evidence inherently possess the same probative value.

Jenks,

,

, at paragraph one of the syllabus. {¶32} “‘Circumstantial evidence is not only sufficient, but may also be more

certain, satisfying, and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.

Cuyahoga No. 96496,

, quoting Michalic v. Cleveland Tankers, Inc.,

,

,

(1960). “A conviction can be sustained based

on circumstantial evidence alone.” State v. Franklin,

,

(1991), citing State v. Nicely,

,

(1988).

{¶33} In this case, Mathis, who had been with the victim before the shooting,

testified she was almost spat on by a man before the shooting. She also testified she saw

a man pulling a pistol out soon after, although she would not testify that these two men

were one and the same. She was, however, overheard saying to the police on the night

of the shooting that “the guy who did it spit over there” while pointing to the floor. The

police found what appeared to be wet saliva in the area she pointed to, near the shooting.

A sample collected had a major contributor that matched appellant’s DNA. Although

there is no direct evidence or eyewitness testimony that identified appellant as the man

who spat before the shooting or the man who pulled the pistol and shot the victim, the

substantial circumstantial evidence presented by the state, viewed in a light most in its

favor, would convince the average mind that appellant was the shooter at Club Fly High

on January 30, 2015.

Prior Calculation and Design {¶34} Appellant also claims the state did not produce sufficient evidence to prove

prior calculation and design, a necessary element for the offense of aggravated murder as

defined in R.C. 2903.01(A).

{¶35} R.C. 2903.01(A) defines aggravated murder as purposely causing the death

of another and with prior calculation and design. In its most recent decision on the issue

of prior calculation and design, State v. Walker, Slip Opinion No.

, the

Supreme Court of Ohio instructed that “[t]he elements of purpose and prior calculation

and design are distinct, and the state must prove both to support a conviction of

aggravated murder under R.C. 2903.01.”

at syllabus. The court, again, stressed that

there is no bright-line test that distinguishes between the presence or absence of prior

calculation and design and each case turns on the particular facts of the case. Walker at

¶ 19; State v. Maxwell,

,

,

; State v.

Taylor,

,

(1997).

{¶36} The phrase “‘prior calculation and design’” indicates “‘an act of studied care

in planning or analyzing the means of the crime, as well as a scheme compassing the

death of the victim.’” Walker at ¶ 17, quoting Ohio Legislative Service Commission,

Proposed Ohio Criminal Code: Final Report of the Technical Committee to Study Ohio

Criminal Laws and Procedures, at 71 (1971). “Evidence of an act committed on the spur

of the moment or after momentary consideration is not evidence of a premeditated

decision or a studied consideration of the method and the means to cause a death.”

Walker at ¶ 18. {¶37} Shooting a person execution-style, however, may establish prior calculation

and design. Walker at ¶ 21, citing State v. Palmer,

,

(1997) (after victim had fallen to the ground, defendant shot the victim in the

head in an execution-style manner). “[I]f the victim is killed in a cold-blooded,

execution-style manner, the killing bespeaks aforethought, and a jury may infer prior

calculation and design.” State v. Hough, 8th Dist. Cuyahoga No. 91691,

, ¶ 19.

{¶38} Taylor,

,

, involved a killing at a bar.

The defendant, who knew the victim, shot the victim several times after an argument.

As the victim lay wounded on the floor, the defendant fired three or four more shots in the

victim’s back. The Supreme Court of Ohio explained that these circumstances showed

“a scheme designed to implement the calculated decision to kill.” Walker, Slip Opinion

No.

. The court noted that pursuing and killing an incapacitated

victim after an initial confrontation strongly indicates prior calculation and design.

citing State v. Conway,

,

,

, ¶ 45.

See also State v. Claytor,

,

(1991) (defendant’s act

of pursuing the victim who was already wounded and killing him with a bullet in the face

went beyond the impulse of the moment to constitute prior calculation and design);

Palmer at 569-590 (after victim fell to the ground, defendant shot the victim in the head

in an execution-style manner). In contrast, the victim in Walker was shot once during a spontaneously erupted group fight, and the Supreme Court of Ohio held that such

circumstances did not support an inference of prior calculation and design.

{¶39} In this case, the victim was shot in a cramped corner between the pool table

and the restroom. The shooting occurred suddenly and violently. The witnesses’

testimony reflects that prior to the shooting, there was no argument or altercation between

the victim and appellant, who knew each other. Without any provocation, gunshots

erupted. Two volleys of shots separated by a brief pause were heard — Bailey testified

he heard two shots, followed by a pause of five to seven seconds, and then another four or

five shots. The medical examiner testified the victim suffered two shots to the chest,

one to the back, a wound to the hip, and one shot to the right hand.

{¶40} These circumstances reflect not a momentary impulse, but rather a scheme

designed to implement a calculated decision to kill the victim. After wounding the

victim, who was helpless, unarmed, and had no way of escaping, appellant shot him in

close range several more times to ensure his death. The cold-blooded, execution-style

manner of killing allowed the jury to infer a prior calculation and design. Walker at ¶

21. Viewing the evidence in a light most favorable to the state, any rational trier of fact

could have found the element of prior calculation and design beyond a reasonable doubt.

The state presented sufficient evidence to support appellant’s conviction of aggravated

murder. The first and second assignments of error are without merit.

Manifest Weight {¶41} Under the third assignment of error, appellant contends his conviction of

aggravated murder is against the manifest of the evidence.

{¶42} While the test for sufficiency requires a determination of whether the state

has met its burden of production at trial, a manifest-weight challenge questions whether

the state has met its burden of persuasion. Thompkins,

,

. Unlike a challenge to the sufficiency of the evidence, which raises a question of

law, a manifest weight challenge raises factual issues. When a defendant asserts that his

conviction is against 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

, quoting State v. Martin,

,

(1st

Dist. 1983). In evaluating a manifest-weight claim, “the weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of the facts.” State v.

DeHass,

,

(1967), paragraph one of the syllabus.

{¶43} Appellant argues his conviction of aggravated murder is against the manifest

weight of the evidence because two key witnesses, Jasmine Rogers and Kendra Mathis,

both admitted consuming alcohol prior to the shooting and both witnesses claimed at trial

they did not clearly perceive the individual involved in the shooting. Appellant also repeats his assertion under this assignment of error that there was no direct physical

evidence linking him to the crime.

{¶44} Regarding the credibility of the two key witnesses, the trial transcript

reflects that the defense counsel extensively cross-examined them regarding their alcohol

consumption on the night of the shooting and their ability to perceive the event. The

transcript also reflects that, despite cooperating with the police initially, they were evasive

on the witness stand, reluctant to confirm their prior identification. In response to their

reluctance, the state presented evidence of witness intimidation and also elicited

testimony from Mathis that she wanted to “mind her own business” and keep her family

safe. We are mindful that questions of witness credibility are primarily the province of

the jury. It is the jury, not this court, that determines the credibility of the witnesses, and

the jury was free to believe all, part, or none of the witnesses’ testimony.

{¶45} Regarding the lack of direct physical evidence linking appellant to the

shooting, as we have explained, circumstantial evidence and direct evidence are

indistinguishable so far as the jury’s fact-finding function is concerned. All that is

required of the jury is that it weighs all of the evidence, direct and circumstantial, against

the standard of proof beyond a reasonable doubt. Having reviewed the entire record, we

cannot say the jury in this case clearly lost its way and created such a manifest

miscarriage of justice that appellant’s aggravated murder conviction must be reversed and

a new trial ordered. This is not an exceptional case in which the evidence weighs heavily against the conviction warranting an exercise of our discretionary power to grant

a new trial. The third assignment of error is without merit.

Ineffective Assistance of Counsel

{¶46} Under the fifth assignment of error, appellant argues his trial court provided

constitutionally ineffective assistance of counsel by failing to object to certain jury

instructions.

{¶47} In order to establish a claim of ineffective assistance of counsel, appellant

must prove (1) his counsel was deficient in some aspect of his representation, and (2)

there is a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different. Strickland v. Washington,

,

,

(1984). In Ohio, every properly licensed attorney is presumed to be

competent and, therefore, a defendant claiming ineffective assistance of counsel bears the

burden of proof. State v. Smith,

,

(1985). In

evaluating whether the defendant has been denied the effective assistance of counsel, the

test is “whether the accused, under all the circumstances, * * * had a fair trial and

substantial justice was done.” State v. Hester,

,

(1976),

paragraph four of the syllabus.

{¶48} Appellant’s claim of ineffective assistance of counsel relates to the jury

instructions on aggravated murder (Count 1) and the lesser included offense of murder

under that count. When the trial court instructed the jury on aggravated murder and the

lesser included offense of murder, the court stated the following: We are still on the first count [of aggravated murder], ladies and gentlemen. If the evidence warrants it you may find the defendant guilty of an offense lesser than that that is charged in the indictment. However, notwithstanding that right, it is your duty to accept the law as given to you by the court and if the facts and the law warrant a conviction of the offense charged in the indictment, namely aggravated murder, then it is your duty to make such finding uninfluenced by your power to find on a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent failure of justice if the evidence fails to so prove the original charge but does justify a verdict for the lesser offense. The lesser included offense is murder as set forth in 2903.02(A). You must consider the offense charged in the indictment. If you find the state proved beyond a reasonable doubt all the essential elements of the offense of aggravated murder, your verdict must be guilty as charged. You will then continue your deliberations to decide whether the state proved beyond a reasonable doubt the essential elements of the lesser included offense of murder. If all of you are unable to agree on a verdict of either guilty or not guilty of the aggravated murder then you continue your deliberations to decide whether the state has proved beyond a reasonable doubt all of the essential elements of the lesser included offense of murder.

(Emphasis added.)

{¶49} These jury instructions reflect that trial court erroneously instructed the jury

to proceed to deliberate on the lesser included offense of murder even if the jury had

already found the defendant guilty of aggravated murder. This was in error, because, if

the jury finds a defendant guilty of aggravated murder, it need not deliberate on the lesser

included offense of murder under the same count. Neither the defense counsel nor the

prosecutor, however, realized the error.

{¶50} After deliberation, the jury returned a verdict of guilty on both aggravated

murder and the lesser included offense of murder on Count 1. The trial court then

realized its error in the jury instructions. After a side bar conference, the court explained

to the jury the error in the prior instructions and advised the jury that it need not deliberate on the lesser included offense of murder if it found the defendant guilty of aggravated

murder. The court stated:

[I]f you find that the state * * * did prove beyond a reasonable doubt all the essential elements of the offense of aggravated murder your verdict must be guilty. * * * You would then cease your deliberations as to whether or not the state prove beyond a reasonable doubt the essential elements of the lesser included offense.

The jury returned to the deliberation room for further deliberations on Count 1 based on

the new instruction. It returned a verdict of guilty on aggravated murder on that count.

{¶51} Given this record, we do not find counsel’s performance deficient in failing

to object to the initial erroneous jury instruction or that there is a reasonable probability

that, were it not for counsel’s error, the result of the trial would have been different.

When the error in the initial jury instructions was discovered, the trial court promptly

corrected the error and the jury re-deliberated based on the corrected instructions. The

defense was not prejudiced by any perceived ineffectiveness by counsel. Appellant had

a fair trial and substantial justice was done. The fifth assignment of error is without merit.

Presence of Restraint

{¶52} Under the sixth assignment of error, appellant claims he was denied a fair

trial because he was shackled in view of the jury. The record reflects that immediately

after the initial guilty verdict on aggravated murder was read by the trial court, the

sheriffs approached appellant and had him handcuffed at the table in accordance with the

court’s protocol. {¶53} “[A] defendant in a criminal case has the right to appear at trial without

shackles or other physical restraint except when the court, in the exercise of a sound

discretion, determines such restraint is necessary for a safe and orderly progress of the

trial.” State v. Carter,

,

(4th Dist. 1977). The usual

practice is for a defendant to appear in court free of shackles because “the presence of

restraints tends to erode the presumption of innocence that our system attaches to every

defendant.”

{¶54} In this case, appellant was not shackled or handcuffed during the course of

the trial. He was only handcuffed after the jury had determined he was guilty of

aggravated murder beyond a reasonable doubt. At that point, the presumption of

innocence had already been overcome. Although the jury reached its final verdict of

aggravated murder after redeliberation (after the trial court advised the jury it need not

consider the lesser included offense of murder once it found the defendant guilty of

aggravated murder), appellant was not unduly prejudiced by the jury’s brief exposure to

him in handcuffs, because that exposure occurred after the jury had already found him

guilty of aggravated murder. The sixth assignment of error is without merit.

Prosecutorial Misconduct

{¶55} Under the seventh assignment of error, appellant alleges three instances of

prosecutorial misconduct during the closing argument: (1) the prosecutor remarked that

Jasmine Rogers “[has] seen a man die and she knows who did it”; (2) the prosecutor

stated that Kendra Mathis “[was] walking out of the women’s bathroom when the shooter spits across her”; and (3) the prosecutor characterized the sample collected as “fresh spit”

even though a forensic scientist acknowledged that the sample was not specifically

performed to determine that it was saliva and also acknowledged that the age of the

sample could not be determined. Appellant points to these remarks without

demonstrating how these remarks constitute prosecutorial misconduct.

{¶56} A prosecutor has a duty in closing argument to avoid efforts to obtain a

conviction by going beyond the evidence before the jury. State v. Smith,

,

(1984). “Prosecutors must avoid insinuations and assertions

calculated to mislead. They may not express their personal beliefs or opinions regarding

the guilt of the accused, and they may not allude to matters not supported by admissible

evidence.” State v. Lott,

,

(1990). However,

“‘[i]n the tension and turmoil of a trial, both the prosecution and the defense have wide

latitude in summation as to what the evidence has shown and what reasonable inferences

may be drawn therefrom.’”

, quoting State v. Stephens,

,

(1970). See also State v. Ballew,

,

(1996) (the prosecutor is entitled to some latitude in closing argument as to what the

evidence presented has shown).

{¶57} Our review of the purportedly improper remarks in context shows that

these remarks were neither insinuations nor personal beliefs, but rather reflect reasonable

inferences that may be drawn from the testimony. They fairly represented the state’s

interpretation of the evidence it presented. The prosecutor was entitled to latitude to argue the state’s interpretation ofthe evidence. State v. Ketterer,

,

,

, ¶ 172.

{¶58} Even if the remarks were in any way improper, the transcript reflects the

trial court reminded the jury after closing arguments that “what counsel says in closing

argument includes their theories of the case. Not one word that is said by the attorneys

in this case, not opening statements, not a question, not a comment, not closing

arguments, constitute evidence. It’s not to be considered as such.” Thus, the trial court

properly instructed the jury that it must decide the case based on the evidence and that

closing arguments were not evidence. We presume that the jury followed the trial court’s

instructions. State v. Leonard,

,

,

,

¶ 157. The seventh assignment of error is without merit.

Cumulative Error

{¶59} Under the eighth assignment of error, appellant argues the cumulative

effects of all the errors he raises deprived him of a fair trial. We recognize that multiple

errors that are separately harmless may, when considered together, violate a person’s right

to a fair trial. State v. DeMarco,

,

(1987), paragraph

two of the syllabus. Here, however, we have not found any errors committed as alleged

by appellant. Therefore, the cumulative-error principle does not apply. State v. Goff,

,

(1998). Our review of the record reflects

appellant received a fair and impartial trial. The eighth assignment of error is overruled.

{¶60} Judgment affirmed. It is ordered that appellee recover of appellant 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.

________________________________________ TIM McCORMACK, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and SEAN C. GALLAGHER, J., CONCUR