[Cite as State v. Curry, 2014-Ohio-3836.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

 STATE OF OHIO                                   :
                                                 :      Appellate Case No. 2012-CA-50
          Plaintiff-Appellee                     :
                                                 :      Trial Court Case No. 12-CR-156
 v.                                              :
                                                 :
 DAMIEN R. CURRY                                 :      (Criminal Appeal from
                                                 :      (Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........
                                            OPINION
                             Rendered on the 5th day of September, 2014.
                                            ...........

ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor’s Office, 61 Greene
Street, Xenia, Ohio 45385
        Attorney for Plaintiff-Appellee

GARY C. SCHAENGOLD, Atty. Reg. #0007144, 4 East Schantz Avenue, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

DAMIEN R. CURRY, #669-694, Lebanon Correctional Institution, Post Office Box 56,
Lebanon, Ohio 45036
      Defendant-Appellant, pro se

                                            .............
HALL, J.

        {¶ 1}    Defendant-appellant, Damien Curry, appeals from his conviction for two counts

of Murder with accompanying firearm specifications. For the reasons that follow, we Affirm.

                             I. Facts and Course of Proceedings

        {¶ 2}    On December 26, 2011, Charles Greene was in Lexington Park in Xenia, Ohio

when he noticed a body on the ground. He returned to his home near the park and called the

police. Xenia police responded to the call and determined that the individual in the park, later

identified as Robert Moore, was deceased. He was found face-down in a pool of blood and brain

matter with a bullet hole in his head. A .40 caliber bullet shell casing was found nearby.

        {¶ 3}    On January 1, 2012, Acacia Mundy contacted the Xenia police and provided

information regarding Moore’s death. From this information, investigating detectives identified

a rental vehicle which had been rented by Tamesha Rollings who, at the time, was Damien

Curry’s girlfriend.   The vehicle, a green Kia Soul, which was located at a body shop in

Columbus, tested positive for a bullet strike. Gunshot residue was recovered from the passenger

door.

        {¶ 4}    The police interviewed Rollings who indicated that she and Moore had

previously provided recorded statements implicating Curry and his friend in an on-going criminal

investigation. According to Rollings, Curry received copies of the statements from his attorney

on December 24, 2011. After viewing the recordings, Curry took Rollings on a ride in the Kia at

which time he threatened to kill Rollings and Moore. Rollings felt threatened enough to jump

out of the vehicle.

        {¶ 5}   On December 25, Curry asked Mundy to drive him around in the Kia while he

attempted to sell drugs. Mundy agreed. During the ride, Moore called Curry seeking to purchase
                                                                                                   3


cocaine. Mundy and Curry went to a local bar where they picked up Moore. The three then

drove to Lexington Park and parked. Curry exited the vehicle in order to use the restroom.

Moore got out of the vehicle and followed Curry. Mundy observed Moore jab at Curry in what

she assumed was a “playful” fight. Tr. p. 301. She then observed the two walking back to the

car with Moore in the lead. Mundy then heard a loud “boom,” and felt something hit the car

which caused the car to shake. Id. at 303. Curry then opened the front passenger door and got

into the vehicle. Curry told Mundy to drive away and stated that Moore was “dead as a motherf*

*r.” Id. at 305.

       {¶ 6}       The pair joined friends at a local hotel where they had some drinks and watched a

basketball game. At some point, Curry left and returned the Kia to Rollings who returned it to

the rental agency in Columbus.

       {¶ 7}       Curry was arrested and advised of his rights.         At that time he denied

involvement in the shooting. Two days later, on April 10, 2012, Curry requested to speak with

the investigating detective. He admitted to committing the offense.

       {¶ 8}       On April 13, 2012, Curry was indicted on two counts of Murder, both with

weapons specifications, and one count of Having Weapons While Under Disability. He was

arraigned on April 20, at which time he entered a plea of not guilty. In May, Curry filed a

motion for change of venue as well as a motion to suppress his confession to the police. Both

were denied. Trial was set for July 16, 2012. Curry also filed a motion for appointment of an

attorney to sit as a second chair at trial which was granted by the trial court. Curry filed a

motion in limine to prevent the State from making reference to his prior crimes and he waived

jury trial on the count of Having Weapons While Under Disability. The count of Having
                                                                                                  4


Weapons While Under Disability was dismissed by the State.

       {¶ 9}     On July 3, 2012, Curry filed a plea of not guilty by reason of insanity and a

motion for competency evaluation. A hearing on the motions to enter a plea of not guilty by

reason of insanity and for an evaluation was held on July 11, 2012, at which time the motions

were denied. Trial was conducted on July 16, 2012, following which Curry was found guilty of

both counts of Murder along with the weapons specifications. The trial court found that the two

counts were allied offenses and the State elected to proceed with sentencing on the first count.

Curry was sentenced to prison for fifteen (15) years to life and a three year firearm specification

was also imposed.

       {¶ 10} Curry filed a notice of appeal and counsel was appointed to prosecute the appeal.

On November 16, 2012, appointed appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), wherein he indicated that in his

judgment there were no meritorious issues to raise on appeal. Counsel did assert three possible

arguments but concluded that these potential issues lacked merit. This court notified Curry that

his counsel had filed an Anders brief and we invited him to file a pro se brief. Curry filed a pro

se brief on March 7, 2013, in which he asserted five Assignments of Error. On October 24,

2013, Curry filed a pleading, which purported to be pursuant to Civ.R. 15, seeking to file an

amended and supplemental pleading adding two additional Assignments of Error.          This matter

is now before the court.

                                        II. Anders brief

       {¶ 11} Assigned counsel filed a brief in this appeal stating that he had been unable to

find any viable issues for appeal. He did identify three possible arguments to raise on appeal
                                                                                                 5


which he determined lack substantial merit.

       {¶ 12} The first potential issue raised by appointed counsel involves the confession

made by Curry while in custody. As stated above, a motion to suppress the confession was filed

by Curry’s trial counsel. A hearing was held on June 14, 2012. Evidence was submitted that

Curry had signed a waiver of his rights. The recorded interview with the detective was also

submitted. There is no indication that Curry was coerced or under duress or that anything was

promised to him in exchange for his testimony. Moreover a written waiver of Miranda rights is

strong evidence that a defendant voluntarily, knowingly and intelligently waived his rights. North

Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). In short, there is

nothing in the record to demonstrate that Curry’s statements made during the interview were not

knowingly and voluntarily made after he had been advised of his rights. Instead, it appears that

Curry decided to admit his role in the shooting in order to implicate Rollings and Mundy for what

he claimed were active roles in the murder. We find this argument lacks arguable merit.

       {¶ 13} The second potential issue raised by counsel involves the fact that there were no

African-Americans in the jury pool. The appellant raises the same argument in his pro se brief.

For the reasons set forth in Part III, below, we conclude this issue lacks arguable merit.

       {¶ 14} The final potential issue identified by counsel questions whether the verdict is

supported by the evidence.

       {¶ 15} The record contains evidence upon which a jury could conclude that Curry

discovered that Moore had implicated him in a prior crime and that Curry threatened to kill

Moore. There is also undisputed evidence that Curry and Mundy took Moore out to Lexington

Park where Curry shot Moore in the head.          Mundy and Rollings both testified that Curry
                                                                                                6


admitted to killing Moore. A letter sent by Curry to Denai Rogers contained Curry’s confession

to the murder. Curry also admitted to the police that he had shot Moore.

        {¶ 16} We conclude that there is evidence in this record to support the convictions.

Thus, we find that this issue lacks arguable merit.

                                  III. Appellant’s pro se brief.

        {¶ 17}    We next turn to Curry’s brief on appeal. Curry’s First Potential Assignment of

Error states:

                 APPELLANT’S       CONVICTION         WERE    [SIC]   AGAINST       THE

        MANIFEST WEIGHT OF EVIDENCE AND WERE [SIC] NOT SUPPORTED

        BY THE SUFFICIENCY OF THE EVIDENCE DUE IN PART TO THE

        STATE’S FAILURE TO ESTABLISH VENUE IN VIOLATION OF THE DUE

        PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S.

        CONSTITUTION, ARTICLE I, SECTION I, 10 & 16 OF THE OHIO

        CONSTITUTION, R.C. 2901.12, AND CRIM.R. 29.

        {¶ 18} Curry contends that the convictions must be reversed because the State failed to

establish venue. Specifically, he argues that the State failed to demonstrate exactly where the

crime occurred or that it occurred in Greene County. It appears his argument is based upon his

theory that the State was only able to show where the victim’s body was found. Initially we

determine that this argument is frivilous because the issue was not preserved for appeal. Trial

counsel made a general Crim. R. 29 motion for a judgment of acquittal at the close of the State’s

case. Tr. p. 481. No reference was made to the issue of venue. At the close of all the evidence,

counsel renewed the Crim. R. 29 motion. Tr. p. 567. The only specific reference in that motion
                                                                                                    7


was that the evidence was insufficient as to “mental culpability.” Id. No mention of venue was

made. Under these circumstances the issue of venue was not raised or preserved for appeal. State

v. Mielke, 12th Dist. Warren No. CA2012-08-079, 2013-Ohio-1612, ¶ 16 (general argument for

Crim.R. 29 motion did not raise venue issue and therefore waived venue for purposes of appeal);

State v. Shedwick, 10th Dist. Franklin No. 11AP709, 2012-Ohio-2270, ¶ 37 (no objection to

venue made during the Crim.R. 29 motion or at any time during the trial waives issue except for

plain error). This alone leads us to conclude that Curry’s venue contention lacks arguable merit.

       {¶ 19}    R.C. 2901.12 requires that the trial of a criminal case be conducted in the

territory where the offense was committed.        Venue is not a material element of criminal

offenses, however it is a fact that the State must prove unless waived by the defendant. State v.

Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). “The standard of proof is beyond a

reasonable doubt, although venue need not be proved in express terms so long as it is established

by all the facts and circumstances in the case.” Id.

       {¶ 20} The State argues that Charles Greene, who testified that he lives in Xenia, Greene

County, Ohio, also testified that Lexington Park - where the body was found - is located in Xenia.

 This is, at best, incomplete. Mr. Greene merely testified that his driveway is “right next to

where that road comes from up to the park.” Tr. p. 60. Despite the fact that he lives next to a

road that is linked to a park does not mean that they are in the same city or even county. It is

possible that the county or city line ends in between those two locations. Further, Mr. Greene

did not testify that Lexington Park is located in Xenia or even in Greene County.

       {¶ 21}    The State next claims that Xenia Police Sergeant Steven Lane testified that

Lexington Park is an area known as the east side of Xenia. However, more accurately, the State
                                                                                                   8


asked Lane whether he was asked to “respond to an area known as the east side of Xenia,

specifically, the Lexington Park area,” to which he responded affirmatively.           He did not

specifically testify that Lexington Park is located in Xenia nor did he testify that the park is in

Greene County.

       {¶ 22}      Finally, the State contends that venue was established by Acacia Mundy who

testified that she drove Curry to Lexington Park where he shot Moore. This alone does not

establish venue.

       {¶ 23} However, this court has previously held that testimony that a certain locality’s

police department investigated the alleged crime may be sufficient to establish venue. See, State

v. Norton, 2d Dist. Greene No. 97 CA 112, 1998 WL 853022, * 7 -8 (Dec. 11, 1998). In this

case, the evidence establishes that the shooting took place in Lexington Park. Mundy and Curry

both testified to that fact. Further, Moore’s body was found in the park laying in a pool of blood

and brain matter. The Xenia police responded to that crime scene. We conclude that these

facts, along with Lane’s affirmative response to the State’s question cited above, is more than

sufficient to establish venue and that an argument to the contrary does not have arguable merit.

       {¶ 24}      Additionally, venue lies in any jurisdiction in which the offense or any element

of the offense was committed. R.C. 2901.12(A). The testimony of Detective Barlow reveals that

Curry himself said that shortly before they picked up Bobby Moore “[h]e said that he knew then

that he was going to smoke him.” Tr. p. 465. Curry decided this was going to happen at

Lexington Park. Id. This established the element of intent already formulated when Curry and

Acacia Mundy picked up Moore at Chubby’s bar on Church Street in Xenia. Tr. p. 296. That

evidence so clearly establishes venue that appellant’s factual argument to the contrary is also
                                                                                                    9


frivolous.

       {¶ 25} Curry’s First potential Assignment of Error lacks arguable merit.

       {¶ 26} Curry next asserts the following Second potential Assignment of Error:

       APPELLANT’S CONVICTION WAS VIOLATED OF [SIC] THE EQUAL

       PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

       UNITED STATES [SIC], IN NOT DESIDING [SIC] AND FOR NOT PANELIN

       [SIC] JURY OF AFRICAN AMERICANS TO BE NOT OF A RACIST AND

       BIAS TRIAL THAT HAS OCCURED [SIC].

       {¶ 27} Curry contends that his trial was unfair because there were no African-Americans

in the jury pool. In support, he cites Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1985).

       {¶ 28} We note that Curry does not contend that the State improperly struck

African-Americans from the jury.       Instead, his complaint is focused on his claim that no

African-Americans were in the array of potential jurors.

       {¶ 29}     Crim.R. 24(F) permits a challenge to the array of petit jurors on the basis that it

“was not selected, drawn or summoned in accordance with law.” Similarly, R.C. 2313.16

permits a challenge to the array. “In order to establish a violation of the fair representative

cross-section of the community requirement for a petit jury array under the Sixth and Fourteenth

Amendments to the United States Constitution, a defendant must prove: (1) that the group

alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this

group in venires from which juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and (3) that the representation is due to systematic
                                                                                                10


exclusion of the group in the jury-selection process.” State v. Fulton, 57 Ohio St.3d 120, 566

N.E.2d 1195 (1991), paragraph two of the syllabus.

       {¶ 30} We note that Curry did not challenge the array until after voir dire was

conducted. Crim.R. 24(F) requires that such challenges be made “before the examination of the

jurors * * *.” Thus, Curry’s challenge was not timely made. See, State v. Walker, 2d Dist.

Clark No. 08-CA-32, 2009-Ohio-1936, ¶ 7-14. For that reason his challenge lacks arguable merit.

       {¶ 31} Further, the record before us does not contain any information about the racial

makeup of the jury pool, nor does Curry demonstrate any evidence regarding the race of the

members of the jury pool. Even assuming that there were no African-Americans in the pool of

potential jurors, there is absolutely no evidence in this record to demonstrate that there was

systematic exclusion of African-Americans or that the potential jurors were not selected in accord

with the law.

       {¶ 32} Curry’s Second potential Assignment of Error lacks arguable merit.

       {¶ 33} Curry’s Third potential Assignment of Error is as follows:

       APPELLANT CONVICTION WAS IN VIOLATION CRIMINAL JUSTICE

       ACT, 18 U.S.C. $3006 A WHICH REQUIRE A [SIC] INDIGENT THE RIGHT

       TO PSYCHIATRIC ASSISTANCE FOR A [SIC] ADEQUATE DEFENSE,

       WHICH VIOLATED THE DEFENDANT A FAIR TRIAL [SIC].

       {¶ 34} Curry argues that the trial court erred by refusing to accept his plea of not guilty

by reason of insanity and by denying his request for a competency evaluation.

       {¶ 35} We begin with the insanity defense raised by Curry. “The defense of not guilty

by reason of insanity must be pleaded at the time of arraignment, except that the court for good
                                                                                                 11


cause shown shall permit such a plea to be entered at any time before trial.” Crim.R. 11(H).

“In Ohio, the defendant in a criminal case is presumed at law to be sane, and the burden of proof

rests upon the defendant to prove, by a preponderance of the evidence, that he was insane within

the meaning of the law at the time the act was committed.” State v. Johnson, 31 Ohio St.2d 106,

119, 285 N.E.2d 751 (1972). “A person is ‘not guilty by reason of insanity’ relative to a charge

of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised

Code, that at the time of the commission of the offense, the person did not know, as a result of a

severe mental disease or defect, the wrongfulness of the person's acts.” R.C. 2901.01(A)(14).

       {¶ 36} Curry’s memorandum in support of entering his plea of not guilty by reason of

insanity does not address the untimeliness of the plea and makes no attempt to demonstrate a

reason for filing the plea late. Therefore the trial court had no basis to conclude there was “good

cause shown” (Crim. R. 11(H)) to allow the plea. As previously noted, Curry was indicted on

April 13, 2012, and arraigned shortly thereafter. He filed multiple motions during the pendency

of the case, and a hearing was held on the motion to suppress. The July 16, 2012 trial date was

set on May 21. Curry filed his plea just thirteen days prior to trial.

       {¶ 37} Further, the filing did nothing to establish the basis for such a plea. The trial

court conducted a hearing on the matter, trial counsel stated that Curry had mentioned that he was

worried he might get shot on the way to trial and that Curry was more focused on “vengeance”

than on his trial. Counsel further stated that Curry had mentioned “suicidal ideation” in letters

he wrote to people while in jail. No evidence was presented to show a connection between these

claims and Curry’s state of mind well after the commission of the crime.

       {¶ 38} We conclude that Curry has shown no basis for the entry of an insanity plea nor
                                                                                                    12


has he shown just cause for the late filing thereof. Accordingly a challenge to the trial court’s

denial of the late plea lacks arguable merit.

       {¶ 39} We next turn to the issue of the request for a competency evaluation.

       {¶ 40} R.C. 2945.37(B) provides that “[i]n a criminal action in a court of common

pleas,* * * the court, prosecutor, or defense may raise the issue of the defendant's competence to

stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on

the issue as provided in this section. If the issue is raised after the trial has commenced, the court

shall hold a hearing on the issue only for good cause shown or on the court's own motion.” “A

defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a

preponderance of the evidence that, because of the defendant's present mental condition, the

defendant is incapable of understanding the nature and objective of the proceedings against the

defendant or of assisting in the defendant's defense, the court shall find the defendant

incompetent to stand trial * * * .” R.C. 2945.37(G).            “The burden is on the defendant to

submit enough evidence to put the question [of competency] at issue.” State v. Carson, 2d Dist.

Greene No. 2002-CA-73, 2003-Ohio-5958, ¶ 30, citing State v. Bailey, 90 Ohio App.3d 58, 67,

627 N.E.2d 1078 (11th Dist. 1992). The “ordering of an examination is a matter within the

discretion of the trial court.” Id., citing R.C. 2945.371(A).

       {¶ 41} The motion in support of the competency evaluation merely stated that “counsel

is concerned” that Curry “may not be competent to assist Counsel with his defense.” Dkt. 48.

Counsel’s basis for this motion, stated during the hearing, is the same as that cited above for the

insanity plea. The trial court conducted questioning of Curry during which Curry acknowledged

that he understood that trial was scheduled and that he still wanted a jury trial. He indicated that
                                                                                                   13


he was able to work with his counsel, but would like to have more time to spend with them

working on his case. He stated that he was satisfied with his attorneys. Curry even argued to

the trial court his belief that the State should not be permitted to redact certain evidence and that

he should be able to review the evidence in its entirety. In sum, Curry was coherent and

participated during the hearing and there was no indication whatsoever that he did not understand

the nature of the proceedings or that he could not assist counsel in his defense. Indeed, the

transcript of the hearing indicates that Curry was very engaged in his defense and that he had a

good grasp of the process. There is nothing in the record to suggest that the trial court abused its

discretion by not ordering a forensic competency evaluation and therefore Curry’s contention to

the contrary lacks arguable merit.

       {¶ 42} Curry’s Third potential Assignment of Error lacks arguable merit.

       {¶ 43} The Fourth potential Assignment of Error asserted by Curry states:

       APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT

       OF PROSECUTORIAL MISCONDUCT, THIS VIOLATED DUE PROCESS OF

       LAW WHICH THE DEFENDANT WAS PREJUDICED BY.

       {¶ 44} Curry contends that prosecutorial misconduct deprived him of his right to a fair

trial. Specifically he claims that the prosecutor, during opening statement, introduced his own

testimony regarding what the witnesses at trial would say. Curry further contends that the

prosecutor engaged in misconduct when a witness for the State testified that no promises were

made to her in exchange for her testimony against him when she ultimately was given the deal

she wanted. He argues that the prosecutor acted improperly by failing to prosecute Acacia

Mundy and Tamesha Rollings for their alleged involvement in the offense. Finally, Curry
                                                                                                    14


claims that the prosecutor improperly introduced a letter into evidence.

       {¶ 45}    The test for prosecutorial misconduct is whether the prosecutor’s actions or

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

rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the

analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455

U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The question is whether the prosecutor's

misconduct so infected the accused's trial with unfairness that the accused's convictions came in

violation of the right to due process. Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94 S.Ct.

1868, 40 L.Ed.2d 431 (1974).

       {¶ 46} Curry concedes that there was no objection at trial to the alleged prosecutorial

misconduct so that we must review his claims for plain error. Plain error is not present unless,

but for the error complained of, the outcome of the trial would have been different. State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. A finding of plain error

should be made with utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice. Id. at paragraph three of the syllabus.

       {¶ 47} We begin with the claim that the prosecutor gave improper testimony during

opening statement by summarizing the testimony that would be presented by the State’s

witnesses.

       {¶ 48} In Ohio, “the function of an opening statement by counsel in a jury trial is to

inform the jury in a concise and orderly way of the nature of the case and the questions involved,

and to outline the facts intended to be proved.” Maggio v. City of Cleveland, 151 Ohio St. 136,

84 N.E.2d 912 (1949), paragraph one of the syllabus. “In the opening statement of any case
                                                                                                  15


counsel in good faith may make statements as to what they expect to prove by competent

testimony.” State v. Colley, 78 Ohio App. 425, 426, 65 N.E.2d 159 (2d Dist.1946). We have

reviewed the entire opening statement and cannot find any example of the prosecutor submitting

his own testimony or improperly outlining the facts that he expected to garner from testimony.

Thus, we find this claim without merit.

          {¶ 49} We next address the claim that the prosecutor committed misconduct when

Tamesha Rollings testified that she hoped to get a lighter sentence in a criminal case pending

against her in exchange for testifying against Curry. Curry appears to argue that the fact that

Rollings subsequently received a lighter sentence indicates that the prosecutor did make a

promise to her regarding her sentence, and that Rollings lied regarding that fact. Curry has

attached to his appellate brief a copy of a document purporting to be the entry plea of guilty filed

by Tamesha Rollings in which she pleaded guilty to a charge that had been amended to a third

degree felony. The document does not contain the actual sentence imposed. In any event, we

cannot take notice of this document as it is not authenticated and is not a part of the record on

appeal.

          {¶ 50} The colloquy between Rollings and the prosecutor regarding her expectations is

as follows:

                 Q: Now, Tamesha, I want to talk to you about your charges that we

          discussed earlier. You are presently under Indictment?

                 A: Yes.

                 Q: In Greene County?

                 A: Yes.
                                                                                     16


       Q: For a very serious crime?

       A: Yes.

       Q: In fact, it’s a felony of the first degree?

       A: Right.

       ***

       Q: After Mr. Curry was found, isn’t it true that you agreed to cooperate in

the case against Mr. Curry?

       A: Yes.

       Q: And this [testifying] is part of that cooperation?

       A: Yes, it is.

       Q: Now, Tamesha, I want to make sure the Jury understands. You are

cooperating because you expect something in return?

       A: Yes.

       Q: And what is it that you expect in return?

       A: Probation and a lesser charge.

       Q: And my question to you, Tamesha, is very simple. Has anybody from

the Prosecutor’s Office told you that that’s going to happen?

       A: No.

       Q: Is there any written agreement between you, your attorney and the

Prosecutor’s Office that says that?

       A: No.

       Q: And have you been told that - - have you been promised by anybody
                                                                                                   17


       from the Prosecutor’s Office that you wouldn’t be prosecuted for anything related

       to Mr. Moore’s case?

               A: No.

       {¶ 51} . There is nothing to indicate that Rollings lied to the jury about either her own

case or Curry’s actions.     If Rollings was improperly influenced by the State, and if such

influence led to perjury, evidence of such is outside the record on appeal. Rollings’ credibility

was a matter for the jury to determine. The jury was clearly apprised by the State of Rollings’

indictment and her expectations for providing evidence against Curry.             We can find no

prosecutorial misconduct regarding this matter on this record.

       {¶ 52} Finally, we address the claim that the State improperly introduced a letter written

by Curry to Denai Rogers in which he admits to shooting Moore. Curry contends that the

introduction of the letter constitutes misconduct because the letter was not properly authenticated

and because its probative value was outweighed by its prejudice. This is more of an evidentiary

issue than a misconduct issue. However, we conclude that the letter was properly authenticated

and admitted. Rollings testified that she was familiar with Curry’s handwriting and she testified

that the letter was in Curry’s hand. Rogers testified that she received this letter, and others, from

Curry. Finally, Curry testified that he had written the letter. We find no misconduct.

       {¶ 53} Curry’s Fourth potential Assignment of Error lacks arguable merit.

       {¶ 54} Curry’s Fifth potential Assignment of Error states:

               THE APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE

       COUNSEL UNDER THE SIXTH AMENDMENT TO THE FOURTEENTH

       AMENDMENT [SIC].
[Cite as State v. Curry, 2014-Ohio-3836.]
        {¶ 55} Curry contends that he was denied the effective assistance of trial counsel

because counsel failed to challenge the indictment. He further claims that counsel failed to

produce witnesses to testify on behalf of Curry. He further contends that counsel was ineffective

because he did not challenge Rollings’ testimony.         Curry also claims that counsel did not

effectively pursue a competency hearing or the entry of an insanity plea. Finally, he claims that

counsel was not effective because he failed to present an effective defense and falsely told him

that if he testified truthfully the jury would only convict him of Manslaughter.

        {¶ 56}      To reverse a conviction based on ineffective assistance of counsel, an appellant

must demonstrate both that trial counsel's conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable probability that, but

for the errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that his or her conduct falls

within the wide range of reasonable assistance. Strickland, at 688. Hindsight is not permitted to

distort the assessment of what was reasonable in light of counsel's perspective at the time, and a

debatable decision concerning trial strategy cannot form the basis of a finding of ineffective

assistance of counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.

Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860, ¶ 58.

        {¶ 57} We turn first to the claim that the indictment was defective and that counsel

should have objected thereto. Curry claims that the indictment failed to include the appropriate

mens rea because it did not include the terms “willfully, knowingly, and intentionally.” He is

simply wrong. A review of the indictment shows that the correct mens rea of “purposely” was

included in Count I which alleges that Curry committed Murder in violation of R.C. 2903.02(A).
                                                                                                     19


Further, the pertinent language of the indictment with regard to Count II, Murder in violation of

R.C. 2903.02(B) as well as the firearm specifications (R.C. 2941.145) for both counts properly

tracked the language of the relevant statutes. “An indictment that charges an offense by tracking

the language of the criminal statute is not defective for failure to identify a culpable mental state

when the statute itself fails to specify a mental state.” State v. Horner, 126 Ohio St.3d 466,

2010-Ohio-3830, 935 N.E.2d 26, paragraph one of the syllabus. Therefore, omission of a mental

state from Curry’s indictment would not constitute a defect. Further, the omission of the mens

rea element from an indictment does not require reversal where, as here, the trial court properly

instructs the jury. State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, at ¶

16. Thus, the record fails to support an argument that counsel was ineffective in this regard.

       {¶ 58} We next turn to the claim that counsel failed to produce any witnesses to testify

on Curry’s behalf. The record does demonstrate that no one, other than Curry, testified during

the presentation of his case. However, there is nothing in this record to indicate the names of

potential witnesses nor their expected testimony.       He further does not claim any resulting

prejudice. The record does not compel us to find that there were omitted potential witnesses.

Again there is nothing in the record to support an argument that this renders counsel ineffective.

       {¶ 59} Curry also contends that counsel was ineffective because he failed to challenge

Tamesha Rollings with regard to her testimony that she had not been promised anything in return

for her testimony. As noted above, Curry claims that Rollings lied with regard to whether she

had been promised a lighter sentence in exchange for her testimony. The record contains no

evidence upon which we can conclude that Rollings committed perjury. Further, we note that

counsel did question Rollings and got her to admit that she was, in fact, testifying against Curry
                                                                                                   20


because she was attempting to make a deal with the prosecutor for a lighter sentence. Thus,

counsel called Rollings’ credibility into question. We find no merit to the claim that counsel

was ineffective in this regard.

       {¶ 60} Next, Curry contends that counsel did not effectively pursue the filing of an

insanity plea or the request for a competency hearing. As noted previously, there is nothing in

this record to support a finding that Curry suffered from any mental defect at the time of the

offense or that he was not competent to stand trial. Likewise, there is nothing in this record

upon which we can conclude that counsel was able to garner any other competent evidence to

support these issues. The trial court did conduct a hearing on these claims. Without more, we

cannot conclude there is any merit to the claim that counsel was ineffective.

       {¶ 61} Finally, Curry claims that counsel did not present an effective defense and that

counsel improperly informed him that if he testified the jury would convict him of Voluntary

Manslaughter rather than Murder. First, we note that counsel was able to secure an instruction

on Voluntary Manslaughter indicating that he did present a defense and a theory of the case. The

fact that the jury did not accept that defense does not render counsel ineffective. Further, there

again is no evidence in the record upon which we can determine that counsel made any promise

that Curry would be convicted of the lesser offense if he testified. Clearly, in order to present his

claim that he acted in a manner consistent with a Voluntary Manslaughter charge, counsel for

Curry needed to present evidence that Curry acted while under the influence of a sudden passion

or fit of rage brought on by serious provocation that was sufficient to incite Curry to use deadly

force. Thus, it was not unreasonable to have Curry testify thereto.

       {¶ 62} We conclude that Curry has failed to demonstrate that counsel’s conduct fell
                                                                                              21


below an objective standard of reasonableness. Accordingly, the Fifth potential Assignment of

Error lacks arguable merit.

       {¶ 63} The Sixth potential Assignment of Error raised by Curry states:

               THE FAILURE TO DISCLOSE THAT THE STATE WITNESS WAS

       PROMISED A LESSER SENTENCE OF A PREVIOUS CRIME THAT WAS

       COMMITTED, FROM A 1ST DEGREE TO A THIRD DEGREE WITH

       PROBATION, IF TESTIFY [SIC] AGAINST THE DEFENDANT, THIS

       CREATED A VIOLATION OF THE 14TH AMEND. [SIC] DUE PROCESS

       AND EQUAL PROTECTION OF LAW.

       {¶ 64} In this Assignment of Error, Curry again takes issue with the testimony of

Tamesha Rollings claiming that she lied about being promised a lighter sentence in exchange for

her testimony against him. For the reasons set forth in the Fourth potential Assignment of Error

above, the record does not support this argument.

       {¶ 65} The Sixth potential Assignment of Error lacks arguable merit.

       {¶ 66} Curry’s Seventh potential Assignment of Error is as follows:

               THE CUMULATIVE DOCTRINE OF ERROR ARRISED [SIC], THE

       CONVICTION IN ERROR TO CREATE A DENILE [SIC] OF THE

       DEFENDANTS [SIC] RIGHT TO A FAIR TRIAL AND DEPRIVED THE

       DEFENDANTS [SIC] RIGHT TO THE CONSTITUTIONAL RIGHTS. THIS

       CONVICTION VIOLATED THE EQUAL PROTECTION AND DUE PROCESS

       OF THE LAW, (5TH, 14TH), AMEND [SIC].

       {¶ 67} Curry argues that the doctrine of cumulative error mandates a reversal of his
                                                                                                   22


conviction. He further raises an argument that his confession was improperly admitted despite

the failure of the State to establish the corpus delicti.

        {¶ 68}     The cumulative-error doctrine states that “a conviction will be reversed where

the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair

trial even though each of the numerous instances of trial court error does not individually

constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).

Having found no error, let alone cumulative error, we find this argument lacks merit.

        {¶ 69} Next Curry argues that the State failed to establish the corpus delicti thus

preventing the admission of his confession.

        {¶ 70}     This court has previously discussed the issue of the corpus delicti in State v.

Gabriel, 170 Ohio App.3d 393, 2007-Ohio-794, 867 N.E.2d 474, ¶ 56-57 (2d Dist.), reversed on

other grounds, In re Criminal Sentencing Cases, 116 Ohio St.3d 31, 2007-Ohio-5551, 876

N.E.2d 528, wherein we stated:

                 The corpus delicti of an offense consists of the act and the criminal agency

        of the act. Before a confession of a crime may be admitted at trial, the state must

        introduce evidence independent of the confession to establish the corpus delicti of

        the offense. The corpus delicti rule is designed to protect “persons who confess to

        crimes that they not only did not commit themselves, but which were never

        committed by anyone.” Accordingly, “this rule does not require evidence, other

        than the confession, showing that the accused committed the crime but, rather,

        requires some evidence that a crime was, in fact, committed.”

                 “The evidence presented need not be so strong that it is capable of
                                                                                                23


        persuading a factfinder on some element of the crime beyond a reasonable doubt.”

        Nor must the evidence be “even enough to make it a prima facie case.” Rather,

        “[i]t is sufficient if there is some evidence outside of the confession that tends to

        prove some material element of the crime charged.” The corpus delicti rule does

        not require evidence related to all elements of the crime. Furthermore, the

        evidence need not be direct but, rather, may be circumstantial. Although the rule

        remains applicable, the Supreme Court has indicated that it need not be applied

        “with a dogmatic vengeance.” (Citations omitted.)

        {¶ 71}    The Supreme Court of Ohio has stated that “[i]n light of the myriad procedural

protections granted defendants in modern criminal practice, however, ‘the corpus delicti rule is

supported by few practical or social policy considerations.’ ” State v. Van Hook, 39 Ohio St.3d

256, 261, 530 N.E.2d 883 (1988). Thus, while the corpus delicti rule requires the State to present

some independent evidence of the criminal act and criminal agency, that burden is minimal. Id.;

State v. Barker, 2d Dist. Montgomery No. 23691, 2010-Ohio-5744, ¶ 10.

        {¶ 72} In this case, the State presented evidence other than the confession. Mundy

testified that she drove Curry to Lexington Park along with Moore. She testified that both men

exited the vehicle, she heard a gunshot and then Curry got back in the car and stated that Moore

was dead. Rollings testified that Curry told her he had killed Moore. We find that this evidence

is more than sufficient to satisfy the corpus delicti rule.

        {¶ 73} The Seventh potential Assignment of Error lacks arguable merit.

                                          IV. Conclusion.

        {¶ 74} We determine that the proposed issues raised by assigned counsel do not have
                                                                                                 24


arguable merit. Likewise, Curry’s pro se potential Assignments of Error, on the record on this

appeal, are lacking in arguable merit.

       {¶ 75}    Pursuant to our responsibilities under Anders, we have undertaken an

independent review of the record on appeal and having done so, we conclude as did appointed

appellate counsel, that there are no arguably meritorious issues for appellate review.

       {¶ 76} The judgment of the trial court is Affirmed.

                                          .............



DONOVAN and WELBAUM, JJ., concur.



Copies mailed to:

Elizabeth A. Ellis
Damien R. Curry
Gary C. Schaengold
Hon. Stephen Wolaver
