      [Cite as State v. Smith, 2018-Ohio-2504.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-170028
                                                      TRIAL NO. B-1505510
     Plaintiff-Appellee,                          :

      vs.                                         :        O P I N I O N.

WILLIAM ANTONIO SMITH,                            :

     Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: June 27, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

       {¶1}     Following a jury trial, defendant-appellant William Antonio Smith

appeals from his convictions for the murders of Alma Jean Owens and MacArthur

Jackson, Sr. The 27-year-old Smith admitted killing his longtime friends in Jackson’s

apartment. But he claimed that he had acted in self-defense when Owens, age 57, and

Jackson, age 72, had attacked him. While Smith sustained substantial cuts to his hand,

neck, face, and side, he shot Owens twice in the head and once in the right leg. He shot

Jackson three times in the head, slit his throat, and inflicted numerous other cuts on

Jackson. Smith was also convicted of having a weapon under a disability, though that

charge was tried to the bench.

       {¶2}     Smith argues in nine assignments of error that the trial court erred by

denying his motion to suppress statements made to police investigators, by permitting

racial discrimination in jury selection, by permitting the state to adduce improper lay

opinions and to impeach its own witness with her prior inconsistent statements, and by

permitting the prosecution to commit misconduct. He further asserts that he was denied

the effective assistance of counsel, that his convictions were contrary to the manifest

weight of the evidence and were based upon insufficient evidence, and that the trial court

erred by imposing consecutive sentences.

       {¶3}     Because the trial court failed to incorporate the statutory consecutive-

sentencing findings into its sentencing entry, we sustain the ninth assignment of

error, in part, and remand the cause for the trial court to enter a nunc pro tunc order

correcting the omission.       But we affirm the trial court’s judgment in all other

respects.

                          I.     The Murder of Owens and Jackson


       {¶4}     In the early evening of October 1, 2015, Smith left the Colerain

apartment of his girlfriend, Kirby Wynn. He traveled to the Evanston neighborhood



                                             2
                       OHIO FIRST DISTRICT COURT OF APPEALS



of Cincinnati. He visited Jackson at his apartment located at 3306 Fairfield Avenue.

Owens often shared Jackson’s apartment. Later that evening, Jackson’s daughter

entered the apartment and found Owens’ clothed, lifeless body lying on the bed. She

also found her father, dead, lying in a pool of blood halfway in a closet near the rear

of the apartment.

       {¶5}     When Smith returned to Wynn’s apartment that evening, he was

bleeding from cuts to his forehead, neck, hand, and side. He claimed that he had

been “jumped” and nearly killed. At about the time that police responded to the

Evanston crime scene, Wynn took Smith to the emergency department of Good

Samaritan Hospital for treatment.       Despite his injuries, Smith twice left the

emergency department. Security supervisor Kevin Robbins spoke with Smith and

ultimately persuaded him to receive treatment. Smith’s wounds were stitched and he

left the hospital in the early hours of October 2. The Cincinnati police were notified

of Smith’s injuries.

       {¶6}     Police investigators quickly focused on Smith as the perpetrator of the

double homicide. The day after the murders they took Smith into custody, and two

Cincinnati police homicide detectives questioned him about the events in Evanston

the previous day. Smith initially denied any involvement in the murders, claiming

that he had been mugged downtown by unknown assailants. He then gave multiple,

conflicting explanations for what had happened in Jackson’s apartment, including

that Owens had entered with an unknown black male who had shot the victims.

After acknowledging that he had fabricated the story of the third man, Smith

admitted killing Owens and Jackson, but only in self-defense, after Owens had

attacked him in the kitchen. He claimed that he was afraid for his life, had shot

Owens and then Jackson, and then had fled through the rear of the apartment.




                                            3
                     OHIO FIRST DISTRICT COURT OF APPEALS


                                       II. The Trial


       {¶7}    The Hamilton County Grand Jury returned a multiple-count

indictment against Smith charging him in separate counts with the murders of

Owens and Jackson, in violation of R.C. 2903.02(A), each with accompanying

firearm specifications, and one count of having a weapon under a disability. The case

was tried over a period of nine days. The prosecution introduced dozens of exhibits

and the testimony of 18 witnesses including that of the investigating officers, crime-

scene technicians, an assistant coroner, the hospital security supervisor, and Smith’s

girlfriend.

       {¶8}    The assistant coroner testified that the 5’1” tall Owens had been shot

three times, once below the right eye, once in the right jaw, and once in the right leg

below the knee. Having found stippling, or marking from gunshot residue, around

the jaw wound, the coroner concluded that the shot was inflicted from two feet away

or less. The coroner testified that the shot below the right eye was the fatal wound

and would have rendered Owens unconscious almost immediately. The leg wound

had shattered Owens’ lower femur. From the geometry of the wound path, the

coroner concluded that Owens had sustained the leg wound while she was standing

in front of the bed, or while she was seated on it. Owens would not have been able to

walk after sustaining the leg wound.

       {¶9}    The coroner further testified that Jackson stood only 5’4” inches tall.

He suffered from chronic lung disease, high blood pressure, and hardening of the

coronary arteries. He had sustained cuts on his hands that the coroner characterized

as defensive wounds caused by a sharp object. He had also sustained multiple

incised wounds—cuts made by a sharp object—to his neck and head. His death was

caused by bleeding from a 6½-inch incised neck wound also caused by a sharp

object. The wound was so deep and long that it could only have been inflicted by an

attacker’s multiple strokes—perhaps a dozen or more. Jackson’s left carotid arteries



                                           4
                    OHIO FIRST DISTRICT COURT OF APPEALS



and his airway were severed as a result of the neck wound. He would have quickly

bled to death from that wound. But Jackson had also received three gunshot wounds

to the head.

       {¶10}   After the prosecution had completed its case, Smith took the stand

and testified in his own defense. After acknowledging that he had prior felony

convictions, Smith admitted that he had lied to police detectives the day after the

murders. He now described for the jury visiting Jackson to buy a drink of gin and

cigarettes from the older man. As the two sat talking, Smith saw through Jackson’s

window that Owens and her nephew, known by the street name “Nook,” were talking

outside the apartment. Smith had been accosted by Nook two weeks before. Smith

now observed that Nook was armed. Nook saw Smith through the window. Nook

and Owens entered the apartment building and Nook motioned for Smith to come

outside.

       {¶11}   Smith grew very apprehensive, and begged Jackson not to let Owens

into the apartment. But Jackson let her in. Smith brandished the handgun that he

carried. As Owens entered, she ordered Smith to leave. Smith cursed her. And, he

told the jury, Owens swung at him and cut his forehead with a sharp object. She

kneed him in the groin and he fell to the floor. Fearing for his life, he drew his

weapon and fired at Owens as he rose from the floor. He pushed her onto the bed,

and at almost the same instant, he felt a cutting wound to his neck, presumably

inflicted by Jackson.   He and Jackson struggled for several minutes.         Smith

recounted shooting Jackson, spraying Jackson with a can of bug spray, and finally

disarming Jackson. As Jackson continued his attack, Smith told the jury that he had

shot him again. Smith told the jury that as a black man he did not want to be found

in a room with two bodies. He fled, taking his gun, a box cutter, and bug spray with

him, and without summoning help for his two friends.




                                          5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12}   At Smith’s request, the trial court charged the jury on the affirmative

defense of self-defense, and the lesser offense of voluntary manslaughter. The jury

rejected Smith’s self-defense claim and found him guilty of each murder offense and

specification. Because the jury had found Smith guilty of murder, it did not, as it had

been instructed, return a verdict on the voluntary-manslaughter charge.

       {¶13}   At sentencing, the trial court imposed a 15-year-to-life prison

sentence for each murder offense and ordered those terms to be served consecutively

to each other, to the three-year firearm specifications, and to a 36-month prison term

for having a weapon under a disability. The aggregate prison sentence was 39 years

to life. This appeal followed.

                                     III. Pretrial Issues


       {¶14}   In his initial assignment of error, Smith contends that the trial court

erred in denying his motion to suppress statements that he had made to police

investigators. Because of the serious nature of the offenses, the detectives made a

visual recording of the entire interview. The video-recorded interview with the police

investigators was played for the trial court and during the jury trial.

       {¶15}   Smith argues that, despite signing a waiver-of-rights form, he had not

voluntarily and knowingly waived his right to remain silent under Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also argues that his

subsequent inculpatory statements were not voluntarily made. Smith maintains that

because he was suffering from the effects of his injuries and was under the influence

of prescription narcotics at the time of questioning, he could not have knowingly and

voluntarily waived his Miranda rights or made statements to the police.

       {¶16}   We review a trial court’s ruling on a motion to suppress in a two-step

process. First, we must accept the trial court’s findings of historical fact if they are

supported by competent, credible evidence. See State v. Burnside, 100 Ohio St.3d




                                             6
                    OHIO FIRST DISTRICT COURT OF APPEALS



152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.          Then this court must make an

independent determination, as a matter of law, without deference to the trial court's

legal conclusions, whether those facts meet the applicable constitutional standards.

Id.

       {¶17}   The state bears the burden of demonstrating by a preponderance of

the evidence both that Smith’s waiver of rights was knowing, intelligent, and

voluntary, and that his subsequent statements were voluntary. See State v. Barker,

149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 30; see also State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 32; State v. Cedeno, 192 Ohio

App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 17 (1st Dist.).

       {¶18}   We analyze both issues using a totality-of-the circumstances test. See

State v. Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310, ¶ 21.           The

totality of the circumstances includes the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency of interrogation; the

existence of physical deprivation or mistreatment; the existence of a police threat or

inducement, and any other relevant factor. State v. Lather, 110 Ohio St.3d 270,

2006-Ohio-4477, 853 N.E.2d 279, ¶ 9. From the evidence available, the trial court

must determine the defendant’s understanding, “which can be implied by his

conduct and the situation.” Id.

       {¶19}   At the motion-to-suppress hearing, the investigating officer, Detective

Christopher Wharton of the Cincinnati police department, testified that he and

another detective had interrogated Smith for about four hours on the evening after

the murders. He testified that the video recording was an accurate record of the

interview. Detective Wharton stated that he had advised Smith of his rights against

self-incrimination, verbally and in written form, prior to questioning. Smith said,

“All right,” signed the waiver form, and agreed to answer the detectives’ questions.

Detective Wharton acknowledged that Smith had substantial injuries to his hand,



                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



head, neck, and side. But the detective stated that Smith did not exhibit any side

effects from any medication that he may have received. He answered questions

appropriately and coherently.     Smith was given snacks and a drink during the

questioning.

       {¶20}   At a suppression hearing, the evaluation of evidence and the

credibility of witnesses are issues for the trial court to determine.       See State v.

Hill, 73 Ohio St.3d 433, 446, 653 N.E.2d 271 (1995). There was ample competent,

credible evidence adduced at the hearing to support the trial court’s legal decision

that Smith had been properly advised of his Miranda rights and that he understood

those rights when he signed the waiver form and answered police questions.

       {¶21}   Smith had executed a written waiver form. A signed waiver form is

strong proof of the validity of the waiver. See State v. Nields, 93 Ohio St.3d 6, 19, 752

N.E.2d 859 (2001). And there was little evidence of police coercion or overreaching

during the interrogation. Though the detectives had warned Smith that his girlfriend

risked obstruction-of-justice charges if she lied on his behalf, a correct statement of

the law about potential punishment of illegal behavior does not generally rise to the

level of coercion necessary to render a confession involuntary. See State v. W., 2015-

Ohio-627, 29 N.E.3d 245, ¶ 38 (2d Dist.). In light of all the other indications of

voluntariness, this interrogation technique standing alone did not vitiate the

interview.

       {¶22}   Smith was 27 years old when interviewed. He did not exhibit any

behavior that would have indicated that he was under the influence of his

medications. Smith responded in a logical manner to the detectives’ questions. He

had had extensive experience with the criminal justice system. Under the totality of

the circumstances, we hold that the trial court was justified in finding that Smith had

been properly advised of his rights prior to making his statements and that he had

knowingly and voluntarily waived those rights.



                                            8
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23}   The state sought to discharge its second burden—demonstrating that

Smith’s statements were voluntarily made—by relying on the statutory presumption

of voluntariness created by R.C. 2933.81(B). That statute provides that when the

police make “an audio and visual recording that is an authentic, accurate, unaltered

record” of an interrogation, the suspect’s statements made during the interrogation

are “presumed to be voluntary.” See R.C. 2933.81(A)(3) and (B); see also Barker,

149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, at ¶ 30.

       {¶24}   At the hearing before the trial court, Smith added little to support his

principal contention that, under the pain of his injuries and the effect of medication,

his statements were not voluntary. See R.C. 2933.81(B). Based upon the totality of

the evidence presented to support the voluntariness of his rights waiver, we hold that

the trial court was also justified in finding that Smith had voluntarily made his

statements to the police. The first assignment of error is overruled.

       {¶25}   In his second assignment of error, Smith asserts that his equal-

protection rights were violated when the trial court permitted the state to exclude a

potential juror based on race in violation of the rule of Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

       {¶26}   Evaluation of a Batson challenge occurs in three steps: (1) the

opponent of the peremptory strike must make a prima facie case of racial

discrimination; (2) the state then offers a racially neutral explanation for the

challenge; and (3) the trial court must decide whether the opponent has proved

purposeful racial discrimination. See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-

2762, 890 N.E.2d 263, ¶ 61. The burden of persuasion remains with the opponent of

the strike. A trial court’s determination that a challenge was not motivated by a

discriminatory intent will not be reversed on appeal unless it is clearly erroneous.

See State v. Herring, 94 Ohio St.3d 246, 257, 762 N.E.2d 940 (2002).




                                            9
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶27}   Here, the state used a peremptory challenge to excuse an African-

American prospective juror, and Smith objected on the basis of Batson. Although

the objection took place during an unrecorded sidebar conference, the trial court

recounted the gist of that conference for the record immediately after the jury was

seated. The trial court determined that Smith had failed to make a prima facie case

of racial discrimination. But it noted that the state had nonetheless offered a race-

neutral reason for striking the prospective juror—that the prospective juror was too

agreeable with Smith’s theory of self-defense. Smith did not contest the trial court’s

description of the arguments made below.

       {¶28}   During voir dire, the prospective juror had stated his belief that if a

person felt that his life was in danger, he was justified to take another’s life. When

asked if the fact that Smith had survived the altercation with Owens and Jackson

rendered him more or less credible, the prospective juror responded, “He was the

survivor. You do what you have to do to survive * * *.”

       {¶29}   In light of the prospective juror’s statements, we cannot say that the

trial court’s acceptance of the state’s race-neutral explanation was clearly erroneous.

See State v. Powers, 92 Ohio App.3d 400, 406, 635 N.E.2d 1298 (10th Dist.1993)

(upholding a peremptory strike challenged under Batson where a juror was “very

much in favor of the defense of self defense”). Smith has not met his burden to show

discriminatory intent, and we overrule his second assignment of error.

                                  IV. Trial Challenges


       {¶30}   In his next three assignments of error, Smith claims that the trial

court abused its discretion in various evidentiary rulings and in denying his mistrial

motions. In applying this standard, a reviewing court “is not free to substitute its

judgment for that of the trial judge.” Berk v. Matthews, 53 Ohio St.3d 161, 169, 559

N.E.2d 1301 (1990); see State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972




                                           10
                     OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 528, ¶ 14. Rather, an abuse of that discretion is shown when the trial court’s

decision is unreasonable, arbitrary, or unconscionable; that is, when the trial court

issues a ruling that is not supported by a “sound reasoning process.” AAAA Ents.,

Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

       {¶31}    Smith first argues that the trial court erred in permitting two state’s

witnesses to render improper opinion testimony without the state’s having

established a foundation for that testimony. Evid.R. 701 limits the testimony of lay

witnesses to “those opinions or inferences which are (1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.” See State v. Edwards, 1st Dist.

Hamilton No. C-050883, 2006-Ohio-5596, ¶ 35; see also Urbana ex rel. Newlin v.

Downing, 43 Ohio St.3d 109, 113, 539 N.E.2d 140 (1989) (trial court’s decision to

admit evidence under Evid.R. 701 consigned to its discretion); State v. Johnson, 144

Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 53.

       {¶32}    Smith first asserts that the trial court improperly permitted Robbins,

the Good Samaritan Hospital security supervisor, to render an opinion on the

severity of Smith’s injuries.   Robbins testified about the appearance of Smith’s

injuries, and the duration of his treatment in the emergency department.

       {¶33}    Immediately before Robbins had been called to testify, Smith made

an oral motion in limine seeking to exclude statements by Robbins about the severity

of Smith’s injuries. Smith was concerned the state would elicit an opinion from

Robbins that Smith’s injuries were not life-threatening. The trial court considered

the motion and acknowledged that Robbins would be able “as a lay person to

[recount his observations of] any types of injuries or wounds, * * * but I won’t let him

get into anything to do with any type of medical diagnosis, treatment or anything of

that nature.”



                                            11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶34}   Robbins told the jury that Smith had arrived at the hospital with cuts

to his hand, forehead, and neck. Smith had twice tried to leave the emergency

department. Both times Robbins had convinced him to return for treatment. Smith

was ambulatory, and had paused in the parking lot to light his own cigarette before

returning the second time to the hospital. Robbins testified that Smith received

treatment and left the hospital after several hours.

       {¶35}   Despite the concern which had prompted the motion in limine, on

cross-examination, Smith’s counsel asked Robbins: “Are you aware that you can be

treated for serious injuries and leave on the same day?” Robbins agreed. On re-

direct examination, and over Smith’s objection, Robbins was immediately asked

whether some injuries that “bleed a lot” and “that need to be stitched up” may

nonetheless be superficial ones. Robbins answered in the affirmative.

       {¶36}   Here, the trial court’s decision to permit Robbins to answer the re-

direct question, over Smith’s objection, was supported by a sound reasoning process.

Robbins was an experienced security officer and he had observed Smith closely

during his stay in the emergency department. He testified that Smith’s stay was

typical of someone who was treated and was then released, a conclusion well within

his experience, and likely to be helpful to the jury. See Evid.R. 701; see also Urbana,

43 Ohio St.3d at 113, 539 N.E.2d 140.

       {¶37}   To the extent that Smith’s cross-examination questioning had elicited

the very type of opinion testimony from Robbins that Smith now alleges was error—

opinion as to whether the severity of a patient’s injuries could be ascertained from

the time of his stay in the hospital—we agree with the trial court that Smith had

opened the door to the state’s inquiry on redirect examination.         The state was

properly permitted to question Robbins on that issue. See State v. Huff, 145 Ohio

App.3d 555, 560, 763 N.E.2d 695 (1st Dist.2001).




                                            12
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶38}   Smith next argues that Dana Greely, a trace-evidence examiner for

the Hamilton County Coroner’s laboratory, was improperly permitted to testify that a

pillowcase found in Jackson’s apartment bore an impression created by Smith’s right

shoe. But Smith failed to raise a timely objection to the admission of this testimony.

See Evid.R. 103(A)(1). Thus absent plain error arising from its admission, this issue

has been forfeited. See Evid.R. 103(D); see also Crim.R. 52(B). Plain error is an error

so extreme that it affected the outcome of the proceedings and must be corrected to

prevent a manifest miscarriage of justice. State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 22–23. In light of Smith’s own testimony before the

jury admitting that he was in Jackson’s bedroom, we cannot find that the admission

of Greely’s statement affected the outcome of the trial, or caused a miscarriage of

justice. See State v. Jells, 53 Ohio St.3d 22, 29, 559 N.E.2d 464 (1990); see also

Rogers at ¶ 23. The third assignment of error is overruled.

       {¶39}   In his fourth assignment of error, Smith contends the trial court erred

by permitting the state to impeach its own witness, Kirby Wynn, in violation of

Smith’s right to a fair trial. Evid.R. 607 permits a party to impeach its own witness,

but only upon a showing of surprise and affirmative damage. See State v. Wright,

2017-Ohio-1568, 90 N.E.3d 162, ¶ 47 (1st Dist.). We review a trial court’s application

of this rule for an abuse of discretion. See State v. Davie, 80 Ohio St.3d 311, 323,

686 N.E.2d 245 (1997).

       {¶40}   Smith argues that, during its direct examination of Wynn, the state

did not make the required showing before impeaching her with her prior statement

to police, made during the investigation of the murders. At trial, Wynn testified that

after the murders Smith had come to her apartment seeking assistance. He was

agitated and bleeding from his wounds. Wynn told the jury that Smith had explained

his injuries by stating only that “I got jumped and they tried to kill me.” And he had

given no further details of the incident.



                                            13
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶41}      For the stated purpose of refreshing her recollection, the state then

recounted to Wynn statements that she had made to police investigators on October

2, 2015, the day after the murders. Wynn had urged Smith to tell her what had

happened. She told police that Smith had explained that he had been in a building in

Evanston and had been with an “older man” when he was attacked. Wynn recounted

to police that she had asked Smith whether that was “the older man who we always

see out there.”

       {¶42}      Despite being informed of her prior statements, Wynn denied making

them and challenged the state to produce her earlier comments. She declared, “I

never said no older man or no building,” and inquired “don’t they record us when

we’re in a room on a tape?” The assistant prosecuting attorney then produced a

video recording of the interview that was played to Wynn, and over Smith’s objection

was played for the jury. After viewing the recording, Wynn recanted.

       {¶43}      We hold that the trial court did not abuse its discretion by allowing

the state to impeach Wynn with her prior inconsistent statements. The trial court’s

decision that the state had made a showing of surprise or affirmative damage

reflected a sound reasoning process supporting its decision. See Morris, 132 Ohio

St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, at ¶ 14. Wynn’s denials of her prior

statements were hardly neutral answers such as “I don’t remember.” See Wright,

2017-Ohio-1568, 90 N.E.3d 162, at ¶ 47.           She had affirmatively challenged the

veracity of the assistant prosecuting attorney, and the trial court did not err in

permitting the state to employ her prior statements both to refresh her recollection

as well as for impeachment. See Davie, 80 Ohio St.3d at 323, 686 N.E.2d 245.

Compare State v. Neal, 1st Dist. Hamilton No. C-140667, 2015-Ohio-4705, ¶ 49

(noting that the technique of permitting the jury to hear large portions of a witness’s

prior inconsistent statements is “more indicative of an impeachment technique than

an attempt to refresh [the witness’s] recollection”).



                                             14
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶44}   But even if the state’s use of the prior testimony was inconsistent with

the Evidence Rules, we could not hold that the use of Wynn’s prior statements

denied Smith a fair trial. From his opening statement on, Smith admitted to the jury

that he had visited Owens and Jackson, “the older man,” in Evanston, and that he

had killed them in an altercation in their home. At worst, the use of Wynn’s prior

statements indicated that Smith had tried initially to hide his culpability, or that

Wynn had lied to protect her boyfriend and the father of one of her children. In light

of Smith’s full-throated admission of involvement, we cannot say that any claimed

error so affected Smith’s substantial rights.     See Evid.R. 103(A).      The fourth

assignment of error is overruled.

       {¶45}   Smith next alleges that the trial court erred in overruling his two

motions for a mistrial. The first was made in response to the trial court’s rulings

permitting the use of Wynn’s prior statements. The second was made after the state

impeached Smith concerning details of his prior felony convictions.

       {¶46}   A mistrial must be declared only when the ends of justice so require

and when a fair trial is no longer possible. State v. Franklin, 62 Ohio St.3d 118, 127,

580 N.E.2d 1 (1991). Since the trial court is “in the best position to determine

whether the situation in [the] courtroom warrant[ed] the declaration of a mistrial,”

the determination of whether to grant a mistrial is consigned to the discretion of the

trial court. State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900 (1988); see State v.

Hamilton, 1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 34.

       {¶47}   Consonant with our resolution of the fourth assignment of error, we

hold that the trial court’s decision overruling the mistrial motion concerning Wynn’s

prior statements was supported by a sound reasoning process and was not in error.

In light of Smith’s attempts, during his direct testimony, to minimize the number of

and his culpability in his prior felony convictions, we cannot say that the state’s

vigorous impeachment of Smith regarding the details of his prior felony convictions



                                           15
                      OHIO FIRST DISTRICT COURT OF APPEALS



for burglary, domestic violence, and breaking and entering denied Smith a fair trial.

See Evid.R. 609; see also Franklin at 127. Here, the experienced trial judge had

viewed both Smith’s direct testimony and the state’s impeachment. The court was in

the best position to determine whether a mistrial was merited, and his decision to

overrule the motion did not constitute an abuse of discretion. See Glover at 19. The

fifth assignment of error is overruled.

         {¶48}   Smith next argues that prosecutorial misconduct denied him a fair

trial, requiring a reversal of his convictions. In support of his argument, Smith cites

the cumulative effect of the state’s questioning of Robbins, its impeachment of Wynn

and Smith, and its improper remarks in closing argument.

         {¶49}   Prosecutorial misconduct will not provide a basis for overturning a

criminal conviction, unless, on the record as a whole, the misconduct can be said to

have deprived the appellant of a fair trial. See State v. Fears, 86 Ohio St.3d 329, 332,

715 N.E.2d 136 (1999). “The touchtone of analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’ ” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221,

767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71

L.Ed.2d 78 (1982). In determining whether prosecutorial misconduct has occurred,

the test is whether the prosecutor’s remarks were improper, “and if so, whether they

prejudicially affected the accused’s substantial rights.” State v. Jones, 135 Ohio St.3d

10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 200; see State v. Slagle, 65 Ohio St.3d 597,

607, 605 N.E.2d 916 (1992). Applying this standard, we find no merit to Smith’s

claim.

         {¶50}   We have already held that in the first three challenged instances the

trial court did not err or did not permit prejudicial error by the state. The state’s

comments made during the questioning of Robbins and the impeachment of Wynn

and Smith were not improper and did not affect Smith’s substantial rights. See Jones

at ¶ 200.



                                            16
                     OHIO FIRST DISTRICT COURT OF APPEALS



       Smith’s remaining challenge is to remarks made by the state during closing

argument. A prosecutor is entitled to a degree of latitude in closing argument “as to

what the evidence has shown and what inferences can be drawn” from that evidence.

State v. Richey, 64 Ohio St.3d 353, 362, 595 N.E.2d 915 (1992). We consider the

closing argument in its entirety when determining whether it prejudiced the

defendant. Slagle at 607.

       {¶51}   Here, Smith did not object to the alleged improprieties in the state’s

closing argument.     To prevail on these claims, he must establish “both that

misconduct occurred and that but for the misconduct, the outcome of the trial clearly

would have been otherwise.” See State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-

5445, 25 N.E.2d 1023, ¶ 109. Smith asserts that the assistant prosecuting attorney

improperly commented on the evidence adduced by Smith to support his self-

defense claim, and called Smith a “monster.”

       {¶52}   The comments on the state of Smith’s self-defense claim were each

based on the evidence presented at trial and were within the latitude afforded in

closing argument.     The prosecuting attorney’s characterization of Smith as a

monster, while certainly intemperate, was arguably supported by the facts of the

case. See State v. Walker, 1st Dist. Hamilton No. C-060910, 2007-Ohio-6337, ¶ 47.

In any event, none of the challenged comments were so prejudicial or outcome-

determinative as to constitute plain error and to deny Smith a fair trial. See Pickens

at ¶ 109. The sixth assignment of error is overruled.

       {¶53}   In his seventh assignment of error, Smith contends that he was

denied the effective assistance of counsel when his trial attorneys failed to object to

the statements of Greely, the trace-evidence examiner, and to the challenged

comments in the state’s closing argument. These arguments are feckless.

       {¶54}   To prevail on a claim of ineffective assistance of trial counsel, Smith

must show, first, that trial counsels’ performance was deficient and, second, that the



                                           17
                     OHIO FIRST DISTRICT COURT OF APPEALS



deficient performance was so prejudicial that he was denied a reliable and

fundamentally fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct.

838, 122 L.Ed.2d 180 (1993); see also Strickland v. Washington, 466 U.S. 668, 689,

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

N.E.2d 373 (1989), paragraphs two and three of the syllabus. A reviewing court must

indulge a strong presumption that counsels’ conduct fell within the wide range of

reasonable professional assistance. See State v. Mason, 82 Ohio St.3d 144, 157-158,

694 N.E.2d 932 (1998).

       {¶55}   Here, Smith’s experienced trial attorneys worked to discredit the

state’s theory of the case and conducted a spirited defense. They vigorously argued

that Smith had fought for his life defending against Owens’ and Jackson’s attacks.

After reviewing the entire record, and in light of our resolution of the third and sixth

assignments of error, we hold that counsels’ efforts were not deficient, and that

Smith was not prejudiced in any way. See State v. Ridder, 1st Dist. Hamilton No. C-

150460, 2016-Ohio-5195, ¶ 20. The result of the trial was reliable and fundamentally

fair. The seventh assignment of error is overruled.

                  V. Sufficiency and Weight-of-the-Evidence Claims


       {¶56}   In his eighth assignment of error, Smith challenges the weight and

sufficiency of the evidence adduced at trial to support his convictions for the murders

of Owens and Jackson. Smith was convicted of two counts of murder under R.C.

2903.02(A), which proscribes “purposely caus[ing] the death of another * * *.” A

person acts purposely when he specifically intends to cause a certain result. See R.C.

2901.22(A); see also State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911

N.E.2d 242, ¶ 188. Smith admitted to killing Owens and Jackson, but argues that the

record established that he had acted in self-defense.




                                            18
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶57}   Self-defense is an affirmative defense that legally excuses admitted

criminal conduct. State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973). A

defendant is entitled to rely on the affirmative defense of self-defense when he

establishes (1) that he was not at fault in creating the violent situation, (2) that he

had a bona fide belief that he was in danger of imminent death or great bodily harm

and that the only means of escape was by use of force, and (3) that he did not violate

any duty to retreat or avoid the danger. See State v. Thomas, 77 Ohio St.3d 323, 326,

673 N.E.2d 1339 (1997). “[I]n most cases, ‘a person may not kill in self-defense if he

has available a reasonable means of retreat from the confrontation.’ ” Id. at 326,

quoting State v. Williford, 49 Ohio St.3d 247, 250, 551 N.E.2d 1279 (1990).

       {¶58}   The defendant must prove each element of self-defense by a

preponderance of the evidence. See R.C. 2901.05(A); see also State v. Bandy, 1st

Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 56. The elements of self-defense

are cumulative.    If a defendant fails to prove any one of these elements by a

preponderance of the evidence he has failed to demonstrate that he acted in self-

defense. See Williford at 249.

       {¶59}   Our review of the entire record fails to persuade us that the jury,

acting as the trier of fact, clearly lost its way and created such a manifest miscarriage

of justice that the murder convictions must be reversed and a new trial ordered.

See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We can find

no basis in this record to conclude that this is that “exceptional case” in which the

jury lost its way. See State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶60}   First, the state adduced ample evidence to support the murder

convictions. Smith admitted killing Owens and Jackson. From the gruesome nature

of the fatal wounds that Smith inflicted on his victims and the physical evidence of

struggle, the jury was entitled to conclude that Smith had purposely caused their



                                            19
                    OHIO FIRST DISTRICT COURT OF APPEALS



deaths. See, e.g., State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶

28 (intent to kill may be inferred from the manner in which the offense was

committed).

       {¶61}   The jury was also entitled to reject Smith’s self-defense claim and his

explanation that he had been attacked by Owens and then Jackson. There was no

evidence establishing that Smith was not at fault in creating the violent situation.

According to Smith’s own trial testimony, he had brought a handgun with him when

he visited Jackson. After viewing Owens talking with Nook outside the apartment,

he brandished the gun and readied it for action by cocking the hammer. He told the

jury that he had remained in the apartment even though Owens had confronted him

and ordered him to leave.

       {¶62}   The record also contains no evidence, save Smith’s own testimony,

establishing that he was in danger of imminent death or great bodily harm. A

defendant’s belief of imminent death or harm must be objectively reasonable. See In

re B.M., 1st Dist. Hamilton No. C-170103, 2018-Ohio-1733, ¶ 12; see also State v.

Oates, 2013-Ohio-2609, 993 N.E.2d 846, ¶ 11 (3d Dist.). The substantially younger

Smith employed brutal measures in response to Owens’ alleged attack. No weapons

were found on or near the victims’ bodies. See State v. Clark, 1st Dist. Hamilton No.

C-150318, 2016-Ohio-948, ¶ 19. And his actions were hardly similar in nature to the

force he claimed that Owens or Jackson had employed.

       {¶63}   Finally, no evidence establishes that Smith had not violated any duty

to retreat or avoid the danger. From the coroner’s testimony and the other physical

evidence, it is clear that Smith had reasonable means to retreat and could have ended

the altercation or fled at almost any point. See Thomas, 77 Ohio St.3d at 326, 673

N.E.2d 1339. Owens was clearly immobilized on the bed by Smith’s first gunshots.

And Smith’s struggle with the 72-year old Jackson afforded him several




                                           20
                    OHIO FIRST DISTRICT COURT OF APPEALS



opportunities to retreat from the confrontation rather than persist and inflict

numerous, gruesome wounds on Jackson.

       {¶64}   As the weight to be given the evidence and the credibility of the

witnesses were for the jury, sitting as the trier of fact, to determine, in resolving

conflicts and limitations in the testimony, the jury could have found that Smith had

purposely caused the death of Owens and Jackson and had failed to establish that he

had acted in self-defense. See R.C. 2903.02(A); see also State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; Thomas, 77 Ohio

St.3d at 326, 673 N.E.2d 1339.

       {¶65}   When reviewing the legal sufficiency of the evidence to support a

criminal conviction, we must examine the evidence admitted at trial in the light most

favorable to the prosecution and determine whether the evidence could have

convinced any rational trier of fact that the essential elements of the crime were

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

Ohio-791, 842 N.E.2d 996, ¶ 36; see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). In deciding if the evidence was sufficient, we neither

resolve evidentiary conflicts nor assess the credibility of the witnesses, as both are

functions reserved for the trier of fact. See State v. Willard, 144 Ohio App.3d 767,

777-778, 761 N.E.2d 688 (10th Dist.2001); Tibbs, 1st Dist. Hamilton No. C-100378,

2011-Ohio-6716, at ¶ 37.

       {¶66}   Here, the record reflects substantial, credible evidence from which the

triers of fact could have reasonably concluded that all elements of the charged

murder offenses had been proved beyond a reasonable doubt, including that Smith

had purposely caused the deaths of Owens and Jackson. See R.C. 2903.02(A); see

also Conway at ¶ 36.

       {¶67}   Smith next argues that there may have been “sufficient” evidence to

support a jury finding of voluntary manslaughter. A sufficiency claim challenges



                                           21
                     OHIO FIRST DISTRICT COURT OF APPEALS



whether a defendant was made to suffer “the onus of a criminal conviction” on less

than sufficient proof. See Jackson, 443 U.S. at 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d

560. But since Smith was not “convicted” of voluntary manslaughter, his argument

is inapposite and must fail.

       {¶68}    Finally, Smith did not argue in his appellate brief that his conviction

for having a weapon under a disability was against the manifest weight or the

sufficiency of the evidence. To receive consideration on appeal, trial-court errors

must be argued and supported by legal authority and citation to the record. See

App.R. 16(A).    Errors not argued in a brief will be regarded as having been

abandoned. See App.R. 12(A)(1)(b); see also Loukinas v. Roto-Rooter Servs. Co., 167

Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 9 (1st Dist.). The eighth

assignment of error is overruled.

                                    VI. Sentencing Error


       {¶69}    In his final assignment of error, Smith claims that the trial court

failed to consider the purposes and principles of felony sentencing before imposing

sentence, failed to notify him that a DNA sample would be obtained from him, and

imposed consecutive sentences without journalizing its findings in the sentencing

entry. We agree with the final contention.

       {¶70}    Smith first contends that the trial court erred as a matter of law by

sentencing him without considering the purposes and principles of felony sentencing

stated in R.C. 2929.11 and 2929.12. Here, it is clear from the trial court’s remarks at

the sentencing hearing that it considered the relevant provisions of R.C. Chapter

2929 in fashioning Smith’s sentences. The trial court engaged Smith in a meaningful

discussion about the seriousness of his actions and noted that he had committed

these offenses while he was on community control. The court clearly articulated its

reasons why the prison terms were appropriate. Thus Smith cannot demonstrate




                                             22
                     OHIO FIRST DISTRICT COURT OF APPEALS



that the trial court failed to consider the purposes and principles of sentencing. See

State v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 3.

       {¶71}   Smith’s next argument, that the trial court erred as a matter of law by

failing to notify him at sentencing that he would be required to submit to mandatory

DNA testing, is similarly without merit. Any error resulting from the trial court's

failure to inform Smith about DNA testing was harmless and did not prejudice

Smith. See Taylor at ¶ 6.

       {¶72}   Finally, Smith argues that the trial court failed to include its

consecutive-sentencing findings in the sentencing entries. Here, the trial court made

the findings to support the imposition of consecutive sentences on the record at the

sentencing hearing. Those findings are amply supported in this record. See R.C.

2953.08(G)(2). But, as the state concedes, the court failed to make those findings a

part of its sentencing entry as required by the Ohio Supreme Court’s decision in State

v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. Thus we

sustain the ninth assignment of error, in part.

       {¶73}   But the trial court’s “failure to incorporate the statutory findings into

the sentencing entry after properly making those findings at the sentencing hearing

[does] not render the sentence contrary to law[.]” Id. at ¶ 30. Instead, “such a

clerical mistake may be corrected by the court through a nunc pro tunc entry to

reflect what actually occurred in open court.” Id.

                                     VII. Conclusion


       {¶74}   Therefore, we remand the cause for the trial court to enter a nunc pro

tunc order correcting the omission of the consecutive-sentences findings from the

sentencing entry. See Crim.R. 36; see also State v. Smith, 1st Dist. Hamilton No. C-

130441, 2014-Ohio-5095, ¶ 8. But we affirm the trial court’s judgment in all other

respects.




                                            23
                     OHIO FIRST DISTRICT COURT OF APPEALS



                                                 Judgment affirmed and cause remanded.



MOCK, P.J., and ZAYAS, J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                            24
