[Cite as State v. Smith, 2013-Ohio-1226.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2012-CA-17
MICHAEL P. SMITH                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Guernsey County
                                                   Court of Common Pleas, Case No.11-CR-
                                                   40


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            March 18, 2013

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DANIEL PADDEN                                      STEPHEN GOLDMEIER
Guernsey County Prosecuting Attorney               Assistant State Public Defender
139 West 8th Street                                250 East Broad Street – Suite 1400
Box 640                                            Columbus, OH 43215
Cambridge, OH 43725
[Cite as State v. Smith, 2013-Ohio-1226.]


Gwin, P.J.

        {¶1}     Appellant Michael P. Smith (“Smith”) appeals from the May 24, 2012

judgment entry of the Guernsey County Court of Common Pleas convicting him of

murder, attempted murder, felonious assault, having a weapon under a disability, and

grand theft. Plaintiff-appellee is the State of Ohio.

                                   FACTS AND PROCEDURAL HISTORY

        {¶2}     Kyle Carter's presence, along with his dog, in an apartment building at 903

Stewart Avenue, Cambridge, Ohio became a source of anxiety for Smith. In addition,

Smith contended that Carter neglected to clean up after his dog, leaving waste in the

front lawn. Smith first tried complaining to the leasing company, but Carter and his dog

remained on the premises. Verbal altercations occurred between the two for some time.

        {¶3}     On March 5, 2011 Jessica Beckett, a resident of the apartment building

observed Smith walk up the shared stairway that led to Becket's apartment and another

apartment where Kyle Carter was currently staying. Becket testified Smith was banging

on the door and yelling at them saying, "he wanted the squatters out of here and their

damn dog out of here, and he was going to kill them, and he was going to beat their

ass." Becket testified she was very scared of this event and eventually decided to

purchase a weapon for protection.

        {¶4}     Carter and his girlfriend Katrina Adamik were alarmed. Carter called a

friend, Trevon Bundy, and reported what had transpired between them and Smith in a

voicemail message to Bundy’s telephone.

        {¶5}     On March 8, 2011, Smith again confronted Carter to tell him that he and

his dog were violating the terms of the lease and he had to go. As the verbal altercation
Guernsey County, Case No. 2012-CA-17                                                     3


escalated, Carter's friend from across the street, Cody Heskett, came to assist him.

Smith was yelling at the two young men to come over to his porch so he could kick their

ass. The shouting match grew louder, but Smith never left his porch. Heskett tore off his

shirt and beat his chest, as if preparing for a fight with Smith. Carter responded to the

threats and shouts with his own angry and violent words. Smith claimed that the two

young men said that they had a gun back at Mr. Heskett's house, which frightened

Smith. Heskett later told his brother that his intention was to go back to the house and

get his shotgun so he could shoot Smith.

      {¶6}   Smith ran inside, grabbed his Springfield .45 Caliber semiautomatic

handgun, and fired a shot from his porch toward the street at Cody Heskett. That shot

missed Heskett. Smith fired a second time striking and eventually killing Kyle Carter.

      {¶7}   Moments before the shooting, Ms. Beckett testified that she heard Smith

yell, "I'm going to get my .45 and blow you up," which she took to mean he was going to

get a gun out of his apartment. At this point, Beckett called the police. However, a

concerned citizen, Linda Phillips had already called the police to report that she had

heard shouts threatening violence and it looked like an old man was antagonizing two

boys who were out in the street.

      {¶8}   On or about 4:09 p.m. on that day, Lieutenant Kevin Love and Patrolman

David Long of the Cambridge Police Department were on routine patrol. They received

a call from dispatch, indicating some type of disturbance in the area of the apartment

building. Lieutenant Love indicated it took them about a minute to travel from their

location, to the dispatched location. As the officers were pulling to the dispatched

intersection, Lieutenant Love testified that he heard a gunshot. Lieutenant Love then
Guernsey County, Case No. 2012-CA-17                                                     4


saw a man in a white T-shirt hunch over, and put his hands on his stomach as he

crossed 9th Street from the east side, to the west side of the street staggering rather

slumped over. The man made it across the street, crossing between two parked cars,

fell to his knees, still clenching himself, he bent over and put his forehead in the grass

and then immediately fell over on his side. The Lieutenant testified there was a lot of

yelling and confusion. Lieutenant Love further testified at first he could not identify the

man, but later identified him as Kyle Carter.

       {¶9}   From their location, the Lieutenant and Patrolman deciphered through the

yelling, that the man who shot Carter was in the big white house across the street, 903

Stewart, which is an apartment building on the northeast corner of that intersection.

       {¶10} Carter Baldwin and Terrence Holdren each testified that, as they pulled up

to the stop sign at Stewart Avenue and 9th Street, they saw Smith take aim at the two

young boys who were standing nearby. Baldwin and Holdren indicated that they saw

Smith, with his arms together, holding a gun on the banister, aiming it at one of the kids.

Baldwin testified that he believed the man with the gun was aiming at one of the kids.

       {¶11} After the shooting, Smith found a car with the keys still in it and drove off.

He thought better of fleeing town, so he instead went to Brenda Berger, a family friend,

to seek help. Smith told Mrs. Berger that he had shot at the two young men. He told

Mrs. Berger that he was scared for his life, and he reacted the only way he could think

of to try to scare them. He said that he had never meant to hurt the young men, just to

scare them and protect himself.

       {¶12} Knowing that Smith did not actually own a car, Mrs. Berger told Smith that

she would not let him stay in the house and that he could not have the stolen car there.
Guernsey County, Case No. 2012-CA-17                                                    5


Smith left briefly to return the car to a safe location. While he was gone, Mrs. Berger

called the police and informed them that Smith would be on her porch for them to come

get him. After both Smith and law enforcement arrived at the house, Smith complied

with the officers' orders and calmly turned himself in to the police. Soon after being

taken to the county jail, Smith learned that he had caused Carter's death. When he

learned this, Smith broke down and relayed to the police the events of that day.

       {¶13} Smith was charged with aggravated murder of Carter, with instructions in

the alternative for murder and voluntary manslaughter. He was also charged with

attempted aggravated murder of Mr. Heskett, with instructions in the alternative for

attempted murder and attempted voluntary manslaughter. Mr. Smith also faced charges

for felonious assault against Heskett, grand theft of the car, and having a weapon under

a disability.

       {¶14} After a six day jury trial Smith was convicted of the lesser offenses of

murder and attempted murder, grand theft, and having a weapon under a disability. His

conviction for felonious assault merged with his conviction for attempted murder. He

was sentenced for the murder to 15 years to life, plus a repeat violent offender

specification of 10 years and a firearm specification of 3 years. He was sentenced for

the attempted murder to 10 years plus three for the repeat violent offender specification.

His sentence for three years for the theft and one year for the weapon under disability

charge ran concurrently to his sentences for murder and attempted murder. His total

sentence was 48 years to life.

                                 ASSIGNMENTS OF ERROR

       {¶15} Smith raises five assignments of error,
Guernsey County, Case No. 2012-CA-17                                            6


      {¶16} “I. THE TRIAL COURT'S ADMISSION OF A VOICEMAIL RECORDED BY

MR. CARTER VIOLATED MR. SMITH'S CONSTITUTIONAL RIGHT TO BE

CONFRONTED WITH THE WITNESSES AGAINST HIM. SIXTH AMENDMENT TO

THE UNITED STATES CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION; CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.CT. 1354, 158

L.ED.2D 177 2004). (STATE'S EXHIBIT CC; T.T. AT 774).

      {¶17} “II. THE TRIAL COURT'S ADMISSION OF A VOICEMAIL RECORDED

BY MR. CARTER VIOLATED THE PROHIBITION ON HEARSAY EVIDENCE, AS THE

RECORDING WENT BEYOND MERELY ESTABLISHING MR. CARTER'S FEAR OF

MR. SMITH, IN VIOLATION OF MR. SMITH'S RIGHT TO DUE PROCESS. FIFTH AND

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTION

16 OF THE OHIO CONSTITUTION. (STATE'S EXHIBIT CC; T.T. AT 774).

      {¶18} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING

THE   STATE    TO   INTRODUCE     UNRELIABLE     AND    UNSCIENTIFIC     EXPERT

TESTIMONY, VIOLATING MR. SMITH'S RIGHTS TO DUE PROCESS OF LAW AND A

FAIR TRIAL. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION; SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION;

EVID.R. 702; DAUBERT V. MERRILL DOW PHARMACEUTICALS, INC., 509 U.S. 579,

113 S. CT. 2786, 125 L. ED. 2D 469 (1993). (JULY 25, 2011 ENTRY; JULY T. AT 102).

      {¶19} “IV. MR. SMITH'S CONVICTIONS FOR MURDER AND ATTEMPTED

MURDER ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND ARE

NOT SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF HIS RIGHT TO

DUE PROCESS. FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
Guernsey County, Case No. 2012-CA-17                                                      7


CONSTITUTION; ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. (MAY 10,

2012 JUDGMENT OF CONVICTION).

       {¶20} “V. THE TRIAL COURT'S ERRORS IN ADMITTING TESTIMONIAL

STATEMENTS WITHOUT CROSS-EXAMINATION, IN IMPROPERLY ADMITTING

HEARSAY EVIDENCE, IN ADMITTING UNSCIENTIFIC AND UNRELIABLE EXPERT

TESTIMONY, AND THE JURY'S ERROR IN MISCONSTRUING THE WEIGHT OF THE

EVIDENCE, CUMULATIVELY DENIED MR. SMITH HIS FEDERAL AND STATE

RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. FIFTH, SIXTH, AND

FOURTEENTH        AMENDMENTS         OF    THE     UNITED     STATES     CONSTITUTION;

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION. (MAY 10, 2012

JUDGMENT OF CONVICTION).”

                                               I, II.

       {¶21} In his first assignment of error, Smith maintains that the admission of a

voicemail message sent by the decedent days before his death violated his right to

confrontation; in his second assignment of error, Smith argues that the voicemail

message was inadmissible hearsay. Because we find the issues raised in Smith’s first

and second assignments of error are closely related for ease of discussion we shall

address the assignments of error together.

       {¶22} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.”

       {¶23} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the Supreme Court of the United States held that out-of-court statements that
Guernsey County, Case No. 2012-CA-17                                                    8


are testimonial are barred, under the Confrontation Clause, unless the witness is

unavailable and the defendant had a prior opportunity to cross-examine the witness,

regardless of whether the statements are deemed reliable by the trial court.

      {¶24} “To trigger a violation of the Confrontation Clause, an admitted statement

must be testimonial in nature, and must be hearsay.” United States v. Deitz, 577 F.3d

672, 683 (6th Cir.2009). A statement is testimonial where a reasonable person would

anticipate that his or her statement would be used “against the accused in investigating

and prosecuting the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004).

See also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at

paragraph two of the syllabus.

      {¶25} Recently, the Ohio Supreme Court has provided the following guidelines

to determine whether a statement made by a victim to family or friends is testimonial

and therefore inadmissible under Crawford,

             Delores's statements to Jeffries do not involve police interrogation.

      Therefore, in order to resolve the Confrontation Clause question, we look

      to State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E. 2d 834,

      paragraph one of the syllabus, which sets forth the applicable test.

             In Stahl, we adopted the “objective witness test” for out-of-court

      statements made to a person who is not law enforcement. We explained

      that such a statement is testimonial for Confrontation Clause purposes if

      the witness would have reasonably believed that her statement would be

      available for use at a later trial. Id. The focus is on “the expectation of the

      declarant at the time of making the statement; the intent of a questioner is
Guernsey County, Case No. 2012-CA-17                                                    9

      relevant only if it could affect a reasonable declarant's expectations.” Id. at

      paragraph two of the syllabus.

             Delores's statements were made to a friend after Delores arrived at

      her home. Delores was crying and hysterical when she told Jeffries that

      her husband had told her that he killed the woman found in the cemetery.

      An objective witness would not reasonably believe that Delores's

      statements to her friend while in an emotional state, repeating what her

      husband had told her, would be available for later use at trial. Indeed,

      Delores did not call the police until after she told Jeffries what Jones had

      told her.

             Ohio courts of appeals have reached the same conclusion in similar

      situations. See State v. Zadar, 8th Dist. No. 94698, 2011-Ohio-1060, 2011

      WL 826271, ¶ 38 (statements to a friend and a therapist not testimonial

      under “objective witness” test); State v. Peeples, 7th Dist. No. 07 MA 212,

      2009-Ohio-1198, 2009 WL 737922, ¶ 31 (statement to a friend not

      testimonial because objective witness would not reasonably believe that

      the statement would later be used at trial).

State v. Jones, ___Ohio St.3d___, 2012-Ohio-5677, 2012 WL6553401 (Dec. 6, 2012),

¶¶160-163.

      {¶26} We find the voicemail statements of the decedent to be non-testimonial in

nature, and thus, the Confrontation Clause does not bar them. Carter made the

statements to Bundy. Bundy is not a law-enforcement officer, and the statements “were

not the result of any official examination.” State v. Nix, 1st Dist. No. C-030696, 2004-
Guernsey County, Case No. 2012-CA-17                                                     10


Ohio-5502, ¶75. Additionally, Carter's primary purpose in telling his friend was not to aid

in the prosecution or the result of an interrogation, but rather to speak of the events with

his friend. See United States v. Manfre, 368 F.3d 832, 838(8th Cir. 2004), fn. 1 (“Mr.

Rush's comments were made to loved ones or acquaintances and are not the kind of

memorialized, judicial-process-created evidence of which Crawford speaks”).

         {¶27} Having determined that Carter’s voicemail statement to Bundy was not

testimonial and therefore was not barred by the Confrontation Clause, we must also

now decide whether the statement was admissible under our rules of evidence. Jones,

¶ 165.

         {¶28} “Hearsay” is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one

of the recognized exceptions. Evid.R. 802; State v. Steffen (1987), 31 Ohio St.3d 111,

119, 509 N.E.2d 383.

         {¶29} “The hearsay rule…is premised on the theory that out-of-court statements

are subject to particular hazards. The declarant might be lying; he might have

misperceived the events which he relates; he might have faulty memory; his words

might be misunderstood or taken out of context by the listener. And the ways in which

these dangers are minimized for in-court statements-the oath, the witness' awareness of

the gravity of the proceedings, the jury's ability to observe the witness' demeanor, and,

most importantly, the right of the opponent to cross-examine-are generally absent for

things said out of court.” Williamson v. United States, 512 U.S. 594, 598,114 S.Ct. 2431,

2434(1994.
Guernsey County, Case No. 2012-CA-17                                                      11


       {¶30} The state argues that the voicemail statement was admissible pursuant to

Evid. R. 803, which allows introduction of a “statement of the declarant's then existing

state of mind, emotion, sensation, or physical condition.” Testimony that a victim was

fearful falls under this hearsay exception and is properly admitted. State v. Apanovitch,

33 Ohio St.3d 19, 22, 514 N.E.2d 394, 398(1987); see, also, State v. O'Neal, 87 Ohio

St.3d 402, 411-412, 2000-Ohio-449, 721 N.E.2d 73. However,

              The state-of-mind exception, however, does not permit witnesses to

       testify to the declarant's statements as to why he or she held a particular

       state of mind. State v. Awkal (1996), 76 Ohio St.3d 324, 331, 667 N.E.2d

       960, 967–968, citing Apanovitch, 33 Ohio St.3d at 21–22, 514 N.E.2d at

       398; see, also, State v. Frazier (1995), 73 Ohio St.3d 323, 338, 652

       N.E.2d 1000, 1013.

State v. Tibbetts, 92 Ohio St.3d 146, 159, 2001-Ohio-132, 749 N.E.2d 226. Thus, the

decedent’s expression that he was afraid of Smith is admissible; however, the reason

he was afraid is not admissible. State v. Anderson, 5th Dist. No. 2003CA00349, 2004-

Ohio-5474, ¶88.

       {¶31} In the case at bar, the voicemail statement goes beyond the simple fact

that Carter was afraid of Smith. It details an unrelated incident involving a third party. In

addition, the record does not disclose at what time of day the incident occurred in

relation to the time the voicemail message was recorded. Carter’s girlfriend did not

recall Carter making a telephone call on March 5, 2011 after the altercation involving

Smith. Thus, the question we must address now is whether the admission of the

voicemail message was harmless.
Guernsey County, Case No. 2012-CA-17                                                    12


      {¶32} The standard for determining this issue depends upon whether the error

involved a non-constitutional violation or was of constitutional magnitude. If there was a

constitutional violation, then, in order to consider the errors harmless, we must find that

beyond a reasonable doubt the errors did not contribute to the verdict. State v. Johnson,

71 Ohio St.3d at 339. Conversely, if the errors were not of a constitutional nature, then

they may be deemed harmless so long as there was substantial other evidence to

support the guilty verdict. State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023,

1032(1994).

      {¶33} Under Rule 52(A) of the Ohio Rules of Criminal Procedure, "[a]ny error,

defect, irregularity, or variance which does not affect substantial rights shall be

disregarded." “A constitutional error can be held harmless if we determine that it was

harmless beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-

Ohio-791, 842 N.E. 2d 996, at ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87

S.Ct. 824, 17 L.Ed.2d 705(1967). “Whether a Sixth Amendment error was harmless

beyond a reasonable doubt is not simply an inquiry into the sufficiency of the remaining

evidence. Instead, the question is whether there is a reasonable possibility that the

evidence complained of might have contributed to the conviction.” Id., citing Chapman

at 23 and State v. Madrigal, 87 Ohio St.3d 378, 388, 721 N.E.2d 52.

      {¶34} In this appeal, Smith argues that the voicemail message contributed to the

jury’s finding that he purposefully caused the death of Carter. As will be discussed more

fully in Smith’s fourth assignment of error, evidence of Smith’s purpose was admitted,

and could be inferred from sources independent of the voice mail message.
Guernsey County, Case No. 2012-CA-17                                                     13


        {¶35} Smith never denied that he had fired the fatal shot. The evidence

indicated that Smith caused the initial confrontation by confronting Carter about Carter’s

dog. Carter was not on Smith’s property at the time. Smith continued his tirade even

after Carter had left the sidewalk, crossed the street and was joined by Heskett. Smith

informed Carter and Heskett that he was going to get his firearm and “blow them up.”

There was no evidence that either Carter or Heskett were armed or that anyone ever

thought they saw either Carter or Heskett with a weapon. Further, there was no

evidence that Carter or Heskett actually attempted to inflict any physical harm on Smith.

Nevertheless, the evidence clearly demonstrated that Smith retrieved a firearm from

inside his home, returned to the porch and fired in the direction of the two young men,

resulting in Carter being fatally wounded. Smith then stole a car and fled the area. Smith

initially denied to the police that he had stolen the car. Smith adamantly maintained that

he had walked to Berger’s house after the shooting. Only after being confronted by the

officer at the end of the interview did Smith “come clean” and admit to deciding to steal

the car so he could drive home to Kentucky, and upon changing his mind to Berger’s

home.

        {¶36} Carter Baldwin and Terrence Holdren each testified that, as they pulled up

to the stop sign at Stewart Avenue and 9th Street, he saw Smith take aim the two young

boys who were standing nearby. Baldwin and Holdren indicated that they saw Mr.

Smith, with his arms together, holding a gun on the banister, aiming it at one of the kids.

Baldwin testified that he believed the man with the gun was aiming at one of the kids.

        {¶37} Additionally, the jury having found Smith not guilty of aggravated murder

necessarily concluded that Smith did not act with prior calculation and design.
Guernsey County, Case No. 2012-CA-17                                                     14


         {¶38} In the case at bar, we are convinced beyond any reasonable doubt that

the jury would have convicted Smith of murder and attempted murder without the

voicemail message or any testimony regarding the voicemail message. We find beyond

a reasonable doubt evidence of the voicemail message from the decedent did not

contribute to the verdicts in Smith’s case.

         {¶39} Smith’s first and second assignments of error are overruled.

                                                III.

         {¶40} In his third assignment of error, Smith challenges the report and opinion of

Special Agent Stephen Burk, a crime scene reconstruction expert. Smith argues that the

trial court abused its discretion in allowing Agent Burke to testify as an expert regarding

the position of the victim and shooter, an opinion that Smith contends is beyond the

scope of Agent Burke’s training and experience. Smith further contends that Agent

Burke’s laser sighting tests are mere guesswork and not based upon reliable scientific

facts.

         {¶41} The Bureau of Criminal Identification and Investigation employ special

Agent Burke in the major crimes division, crime scene unit. In the case at bar, he

utilized a laser that projects a straight line to illustrate the line of sight from Smith’s

porch. Special Agent Burke testified that a laser is used instead of a length of string to

indicate angle and line of sight. He testified that the laser can more accurately span long

distances than a string because the string is affected by gravity. The unobstructed line

of sight test is used to demonstrate the possibility or the probability that a gunshot could

be taken from a certain location.
Guernsey County, Case No. 2012-CA-17                                                  15


       {¶42} Special Agent Burke obtained blood spatter evidence from the street,

which indicted the location of the decedent when he was shot. Special Agent Burke

used a tape measure to obtain the distances of the blood spatter and from Smith’s

porch. Special Agent Burke also photographed a car that had a bullet hole through the

rear, passenger side window.

       {¶43} The laser test was used in this case because a tree was located between

Smith’s porch and the street where the blood spatter was found. The test demonstrated

a clear unobstructed line of sight between two branches of the tree to the location where

the blood spatter began on the sidewalk. A similar test was made from the vehicle to the

porch. In addition, a male subject approximating the height and weight of the

descendent was placed on the blood spatter. The laser’s position on the subject in

various positions was demonstrated and photographed.

       {¶44} At trial Special Agent Burke was permitted to give his expert opinion that,

the shooter would have had a clear unobstructed line of sight from Smith’s porch to the

damaged car window and through the tree to the area where the blood spatter began.

The state also presented photographs of the laser sight demonstration conducted at the

scene of the crime.

       {¶45} In the case at bar, the Court held a hearing pursuant to Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993) prior

to admitting Special Agent Burke’s opinion at trial.

              In general, courts should admit expert testimony whenever it is

       relevant and satisfies Evid.R. 702. State v. Nemeth (1998), 82 Ohio St.3d

       202, 207, 694 N.E.2d 1332; see, also, State v. Williams (1983), 4 Ohio
Guernsey County, Case No. 2012-CA-17                                                     16


     St.3d 53, 58, 4 OBR 144, 446 N.E.2d 444. Thus, the trial judge must

     perform a “gate keeping” role to ensure that expert testimony is sufficiently

     (a) relevant and (b) reliable to justify its submission to the trier of fact. See

     Kumho Tire[(1999)], 526 U.S. [137] at 152, 119 S.Ct. 1167; Daubert v.

     Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 589, 113 S.Ct.

     2786; Nemeth, 82 Ohio St.3d at 211, 694 N.E.2d 1332; Douglass, 153

     Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, at ¶ 32.

            In performing its gate keeping function, the trial court's starting point

     should be Evid.R. 702, which provides that a witness may testify as an

     expert if all of the following apply: “(A) The witness' testimony either

     relates to matters beyond the knowledge or experience possessed by lay

     persons or dispels a misconception common among lay persons; (B) The

     witness is qualified as an expert by specialized knowledge, skill,

     experience, training, or education regarding the subject matter of the

     testimony; (C) The witness' testimony is based on reliable, scientific,

     technical, or other specialized information. To the extent that the testimony

     reports the result of a procedure, test, or experiment, the testimony is

     reliable only if all of the following apply: (1) The theory upon which the

     procedure, test, or experiment is based is objectively verifiable or is validly

     derived from widely accepted knowledge, facts, or principles; (2) The

     design of the procedure, test, or experiment reliably implements the

     theory; (3) The particular procedure, test, or experiment was conducted in

     a way that will yield an accurate result.”
Guernsey County, Case No. 2012-CA-17                                                   17

Abon, Ltd. v. Transcontinental Ins. Co., 5th Dist. No. 2004-CA-0029, 2005-Ohio-3052,

citing Valentine v. Valentine(2001), 158 Ohio App.3d 615, 628-631 2004-Ohio-4521,

821 N.E.2d 580(2001)(Internal quotation marks omitted).

       {¶46} Evid.R. 702(B) provides that a witness may qualify as an expert by reason

of his or her "specialized knowledge, skill, experience, training, or education regarding

the subject matter of the testimony." Pursuant to Evid.R. 104(A), the trial court

determines whether a witness qualifies as an expert, and that determination will be

overturned only for an abuse of discretion. State v. Hartman, 93 Ohio St.3d 274, 285,

754 N.E.2d 1150(2001); State v. Williams, 4 Ohio St.3d 53, 58, 446 N.E.2d 444(1983).

       {¶47} Neither special education nor certification is necessary to confer expert

status upon a witness. "The individual offered as an expert need not have complete

knowledge of the field in question, as long as the knowledge he or she possesses will

aid the trier of fact in performing its fact-finding function." State v. Hartman, 93 Ohio

St.3d at 285; State v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d 128(1999).

       {¶48} “A court resolving a reliability question should consider the ‘principles and

methods’ the expert used ‘in reaching his or her conclusions, rather than trying to

determine whether the conclusions themselves are correct or credible.’ Nemeth, 82

Ohio St.3d at 210, 694 N.E.2d 1332; see, also, Miller, 80 Ohio St.3d 607, 687 N.E.2d

735, paragraph one of the syllabus. As the Daubert court stated, in assessing reliability,

‘[t]he focus * * * must [generally] be * * * on principles and methodology, not on the

conclusions that they generate.’ Daubert, 509 U.S. at 595, 113 S.Ct. 2786, 125 L.Ed.2d

469.
Guernsey County, Case No. 2012-CA-17                                                   18


       {¶49} “A trial court may not, therefore, exclude expert testimony simply because

it disagrees with the expert's conclusions. Instead, if the expert followed methods and

principles deemed valid by the discipline to reach his opinion, the court should allow the

testimony. See Paoli, 35 F.3d at 742 (‘an expert's testimony is admissible as long as the

process or technique the expert used in formulating the opinion is reliable’). The

traditional adversary process is then capable of weeding out those shaky opinions. See

Daubert, 509 U.S. at 596, 113 S.Ct. 2786, 125 L.Ed.2d 469” Valentine v. Valentine, 158

Ohio App.3d 615, 628-631; 2004-Ohio-4521, 821 N.E.2d 580(2001), ¶¶23-31.

       {¶50} To a certain extent, Special Agent Burke’s opinions are cumulative; Smith

admitted he fired the gun from his porch and several witnesses observed him. Thus,

any error in the admission of the testimony would be harmless. The real crux of Smith’s

contention is that the tree and the topography of the land could have prevented him

from having a clear view of the decedent before he fired depending on where he stood

on the porch. Further, Smith argues that he shot wildly and did not aim at either young

man.

       {¶51} In the case at bar, Smith’s arguments concerning the use of a laser light

instead of a string, and the uncertainty concerning the precise positions of the shooter

and the decedent at the time the shots were fired, go more to the weight of the evidence

rather than to its admissibility.

       {¶52} “Questions about the certainty of the scientific results are matters of

weight for the jury. For example, in discussing the fact that a hair sampling technique

only showed similarities between the hairs and could not show a match with certainty,

‘[t]he lack of certainty went to the weight to be assigned to the testimony of the expert,
Guernsey County, Case No. 2012-CA-17                                                       19


not its admissibility, and defense counsel did a creditable job of arguing to the jury that it

should be assigned little weight.’ United States v. Brady, 595 F.2d 359, 363 (6th

Cir.1979). And, in general, criticisms touching on whether the lab made mistakes in

arriving at its results are for the jury.” United States v. Bonds, 12 F.3d 540, 563(6th Cir.

1979). See also, State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107(1992).

       {¶53} Even if we were to assume the admission of this evidence was error, it

was harmless beyond a reasonable doubt. Crim.R. 52(A); State v. Zimmerman, 18 Ohio

St.3d 43, 45, 479 N.E.2d 862, 863(1985). There was no prejudicial error in allowing

Special Agent Burke to testify in this case. Agent Burke's testimony did not include

conclusions on bullet trajectory. The trial court also instructed the jury to use these

demonstrations only for line-of-sight, not as recreations

       {¶54} Accordingly, Smith’s substantial rights were not violated by the admission

of Special Agent Burkes testimony.

       {¶55} Smith’s third assignment of error is overruled.

                                                 IV.

       {¶56} In his fourth assignment of error, Smith maintains that his convictions for

murder and attempted murder are against the sufficiency of the evidence and against

the manifest weight of the evidence, respectively.

       {¶57} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable
Guernsey County, Case No. 2012-CA-17                                                         20

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

       {¶58} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶59} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Guernsey County, Case No. 2012-CA-17                                                21

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts. * * *

              “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶60} In the case at bar, Smith challenges his conviction for murder and

attempted murder in violation of R.C. 2903.02(A), which states: “No person shall

purposely cause the death of another * * *.”

      {¶61} R.C. 2901.22 Culpable mental states, provides:

             (A) A person acts purposely when it is his specific intention to

      cause a certain result, or, when the gist of the offense is a prohibition

      against conduct of a certain nature, regardless of what the offender

      intends to accomplish thereby, it is his specific intention to engage in

      conduct of that nature.
Guernsey County, Case No. 2012-CA-17                                                      22

      {¶62} In State v. Jester, 32 Ohio St.3d 147, 152, 512 N.E.2d 962, 968(1987), the

Ohio Supreme Court held:

                Where an inherently dangerous instrumentality was employed, a

      homicide occurring during the commission of a felony is a natural and

      probable consequence presumed to have been intended. Such evidence

      is sufficient to allow a jury to find a purposeful intent to kill. State v. Clark

      (1978), 55 Ohio St.2d 257, 9 O.O.3d 257, 379 N.E.2d 597, syllabus; State

      v. Johnson (1978), 56 Ohio St.2d 35, 10 O.O.3d 78, 381 N.E.2d 637.

Accord, State v. Widner, 69 Ohio St.2d 267, 431 N.E.2d 1025(1982) (finding purpose to

kill in passenger's firing gun at individual from moving vehicle); State v. Dunlap, 73 Ohio

St.3d 308, 316, 652 N.E.2d 988(1995), certiorari denied (1996), 516 U.S. 1096, 116

S.Ct. 1096, 133 L.Ed.2d 765. State v. Banks, 10th Dist. No. 01 AP–1179, 2002–Ohio–

3341 at ¶ 24.

                The trier of fact may infer an intention to kill from the surrounding

      circumstances where the natural and probable consequence of a

      defendant's actions is to produce death. State v. Robinson (1954), 161

      Ohio St. 213, 118 N.E.2d 517, paragraph five of the syllabus; State v.

      Edwards (1985), 26 Ohio App.3d 199, 200, 499 N.E.2d 352. Here,

      defendant looked at a group of individuals, pointed a semi-automatic

      handgun in their direction, and fired five shots. In so doing, one of the

      bullets fired from the handgun struck and killed his driver, Andre J.

      Bender. Although defendant claims the evidence equally supports a

      conclusion that he was merely trying to scare individuals in the group by
Guernsey County, Case No. 2012-CA-17                                                       23


      firing the handgun into the air, “[t]he act of pointing a firearm and firing it in

      the direction of another human being is an act with death as a natural and

      probable consequence.” State v. Brown (Feb. 29, 1996), Cuyahoga App.

      No. 68761, unreported. Compare State v. Jester (1987), 32 Ohio St.3d

      147, 152, 512 N.E.2d 962 (when an inherently dangerous instrumentality

      is employed in the commission of a robbery, such evidence permits a jury

      to find a purposeful intent to kill).

State v. Turner, 10th Dist. No. 97APA05-709, 1997 WL 798770(Dec. 30, 1997), quoting

State v. Brown, 8th Dist. No. 68761, 1996 WL 86627(Feb. 29, 1996) dismissed, appeal

not allowed, 77 Ohio St.3d 1468, 673 N.E.2d 135.

      {¶63} Smith argues that he was provoked. Smith presented expert testimony to

demonstrate that his medications and mental condition could have made him more

susceptible to being provoked by those around him. Smith contends that he should

have been convicted of voluntary manslaughter.

      {¶64} The voluntary manslaughter statute, R.C. 2903.03, provides:

             (A) No person, while under the influence of sudden passion or in a

      sudden fit of rage, either of which is brought on by serious provocation

      occasioned by the victim that is reasonably sufficient to incite the person

      into using deadly force, shall knowingly cause the death of another.

      {¶65} Sudden rage or passion has been described as, “anger, hatred, jealousy,

and/or furious resentment.” State v. Harris, 129 Ohio App.3d 527, 535, 718 N.E.2d

488(10th Dist. 1998).
Guernsey County, Case No. 2012-CA-17                                                   24


       {¶66} To determine whether sufficient evidence of serious provocation exists, a

trial court must engage in a two-part inquiry.

       {¶67} First, the court must objectively determine whether the alleged provocation

is reasonably sufficient to bring on a sudden passion or fit of rage. State v. Mack, 82

Ohio St.3d 198, 201, 1998-Ohio-375, 694 N.E.2d 1328. “If this objective standard is

met, the inquiry shifts to a subjective standard, to determine whether the defendant in

the particular case ‘actually was under the influence of sudden passion or in a sudden fit

of rage.’” Id., quoting State v. Shane, 63 Ohio St.3d 630, 634-35, 590 N.E.2d 724(1992).

       {¶68} In examining whether provocation is reasonably sufficient to bring on a

sudden fit of passion or fit of rage, the Ohio Supreme Court has stated “[f]or provocation

to be reasonably sufficient, it must be sufficient to arouse the passions of an ordinary

person beyond the power of his or her control.” State v. Shane, 63 Ohio St.3d at 635,

590 N.E.2d 272. In determining whether the provocation was reasonably sufficient, the

court must consider the emotional and mental state of the defendant and the conditions

and circumstances that surrounded him at the time. State v. Mabry, 5 Ohio App.3d 13,

449 N.E.2d 16 (8th Dist. 1982), paragraph five of the syllabus, approved.

       {¶69} Generally, neither words alone nor fear itself will constitute evidence of

serious provocation. “[W]ords alone will not constitute reasonably sufficient provocation

to incite the use of deadly force in most situations” and “[f]ear alone is insufficient to

demonstrate the kind of emotional state necessary to constitute sudden passion or fit of

rage.” Shane at 634-635, 590 N.E.2d 272; Mack at 198, 694 N.E. 2d 1328.

       {¶70} Unlike self-defense, the issue of who was the aggressor is not the

determinative issue in a voluntary manslaughter defense; rather the appellant must
Guernsey County, Case No. 2012-CA-17                                                  25


show that he acted under a sudden rage or passion. Further, past incidents or verbal

threats do not satisfy the test for reasonably sufficient provocation when there is

sufficient time for cooling off. State v. Huertas, 51 Ohio St.3d 22, 31-32, 553 N.E.2d

1058, 1068-1069 (1990). See, also, State v. Pierce, 64 Ohio St.2d 281, 18 O.O.3d 466,

414 N.E.2d 1038 (1980).

       {¶71} In the case at bar, as we have already noted, Smith never denied that he

had fired the fatal shot. The evidence indicated that Smith caused the initial

confrontation by confronting Carter about Carter’s dog. Carter was not on Smith’s

property at the time. Smith continued his tirade even after Carter had left the sidewalk,

crossed the street and was joined by Heskett. Smith informed Carter and Heskett that

he was going to get his firearm and “blow them up.” There was no evidence that either

Carter or Heskett were armed or that anyone ever thought they saw either of them with

a weapon. Further, there was no evidence that Carter or Heskett actually attempted to

inflict any physical harm on Smith. Nevertheless, the evidence clearly demonstrated that

Smith retrieved a firearm and fired in the direction of the two young men, resulting in

Carter being fatally wounded. Carter Baldwin and Terrence Holdren each testified that,

as they pulled up to the stop sign at Stewart Avenue and 9th Street, he saw Smith take

aim the two young boys who were standing nearby. Baldwin and Holdren indicated that

they saw Mr. Smith, with his arms together, holding a gun on the banister, aiming it at

one of the kids. Baldwin testified that he believed the man with the gun was aiming at

one of the kids.
Guernsey County, Case No. 2012-CA-17                                                          26


       {¶72} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had committed the crimes of murder and attempted murder.

       {¶73} We hold, therefore, that the state met its burden of production regarding

each element of the crime of murder and attempted murder and, accordingly, there was

sufficient evidence to support Smith's convictions.

       {¶74} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008–Ohio–6635, ¶ 31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395, 813 N.E.2d 964, ¶

81. In other words, “[w]hen there exist two fairly reasonable views of the evidence or

two conflicting versions of events, neither of which is unbelievable, it is not our province

to choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002–Ohio–

1152, at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

The weight to be given to the evidence and the credibility of the witnesses are issues for

the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph

one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6524, 960 N.E.2d

955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed.

680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646

(1983).
Guernsey County, Case No. 2012-CA-17                                                  27


      {¶75} Addressing Smith’s contention that his physical and mental maladies and

medications made him more susceptible to being provoked, we note that in State v.

Shane, the Ohio Supreme Court observed,

             A psychologist who testified at trial offered his opinions about

      Shane's personal propensity to be provoked in the situation as it

      developed. However, even assuming that Shane subjectively could be

      easily provoked by Wagner to act under the influence of sudden passion

      or in a sudden fit of rage, there still must be sufficient provocation by the

      victim so that a reasonable person would be so provoked. Accepting as

      fact that Shane was actually provoked only satisfies one part of the

      provocation inquiry. Because we find that the provocation by the victim in

      this case was not reasonably sufficient provocation, we hold that the

      objective portion of the inquiry has not been satisfied. Thus, a reasonable

      person would not have been provoked in the circumstances of this case.

             Hence, we find that the totality of the evidence in this case, even

      when viewed in a light most favorable to the defendant, did not raise a

      possibility of serious provocation. Shane alleges that it was only mere

      words that provoked him. Considering this fact, together with the

      surrounding circumstances of the case, we conclude that no reasonable

      jury could have decided that Shane was sufficiently provoked by the victim

      so that a conviction on the inferior-degree offense of voluntary

      manslaughter could have been forthcoming.

      63 Ohio St.3d 638.
Guernsey County, Case No. 2012-CA-17                                                    28


       {¶76}    In the case at bar, we find that any provocation by the victims in this

case was not reasonably sufficient to provoke a reasonable person to use deadly force.

There was no evidence that either Carter or Heskett were armed or that anyone ever

thought they saw either of them with a weapon. Further, there was no evidence that

Carter or Heskett actually attempted to inflict any physical harm on Smith. Thus, the

objective portion of the inquiry has not been satisfied.

       {¶77} We find that this is not an “‘exceptional case in which the evidence

weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best

position to evaluate this competent, credible evidence, and we will not substitute our

judgment for that of the trier of fact. The jury neither lost their way nor created a

miscarriage of justice in convicting Smith of the charges.

       {¶78} Smith’s fourth assignment of error is overruled.

                                                V.

       {¶79} In his fifth assignment of error, Smith asserts that the cumulative effect of

the errors alleged in his previous assignments of error warrant a reversal. We disagree.

       {¶80} Pursuant to the doctrine of cumulative error, a judgment may be reversed

where the cumulative effect of errors deprives a defendant of his constitutional rights,

even though the errors individually do not rise to the level of prejudicial error. State v.

Garner 74 Ohio St.3d 49, 64, 656 N.E.2d 623(1995), certiorari denied (1996), 517 U.S.

1147, 116 S.Ct. 1444, 134 L.Ed.2d 564. Accord, State v. Brown, 100 Ohio St.3d 51,

2003-Ohio-5059, 796 N.E.2d 506.
Guernsey County, Case No. 2012-CA-17                                                   29


      {¶81} This Court has found that if the trial court did not err cumulative error is

simply inapplicable. State v. Carter, 5th Dist. No. 2002CA00125, 2003-Ohio-1313 at ¶

37. To the extent that we have found that any claimed error of the trial court was

harmless, or that claimed error did not rise to the level of plain error, we conclude that

the cumulative effect of such claimed errors is also harmless because taken together,

they did not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 89-90,

2004-Ohio-6235, 818 N.E.2d 229, 270 at ¶ 185.

      {¶82} As this case does not involve multiple instances of error, Smith’s fifth

assignment of error is overruled.

      {¶83} The judgment of the Court of Common Pleas, Guernsey County, Ohio, is

affirmed.


By Gwin, P.J.

Hoffman, J., and

Wise, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            _________________________________
                                            HON. JOHN W. WISE


WSG:clw 0301
[Cite as State v. Smith, 2013-Ohio-1226.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MICHAEL P. SMITH                                  :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-17




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Guernsey County, Ohio, is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. JOHN W. WISE
