[Cite as State v. Monroe, 2011-Ohio-3045.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 94768


                                    STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 DARREN MONROE
                                                      DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-505319

        BEFORE:                Sweeney, J., Kilbane, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                         June 23, 2011

ATTORNEY FOR APPELLANT
Paul Mancino, Jr., Esq.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Thorin O. Freeman, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant, Darren Monroe (“defendant”), appeals from

his conviction for voluntary manslaughter with a firearm specification.

Within his nine assignments of error, defendant asserts that he was denied a

fair trial in violation of his due process rights and denied his right of

confrontation in multiple instances. Additionally, defendant challenges the

court’s jury instructions , contends his conviction was based upon insufficient

evidence, and asserts his conviction was against the manifest weight of the

evidence. For the reasons that follow, we affirm.

      {¶ 2} This matter is before us for the second time.   This court previously

affirmed the trial court’s order granting defendant a new trial following

defendant’s initial conviction for murder.    See State v. Monroe, Cuyahoga
App. No. 92291, 2009-Ohio-4994. At defendant’s second trial, the following

evidence was presented:

      {¶ 3} In the early morning hours of December 22, 2007, David Bober was

shot and killed near his home on West 48th Street in Cleveland, Ohio. Prior

to that time, David had been drinking with his brother Raymond and his

friend Milton.    According to Raymond and Milton, the men consumed

excessive amounts of alcohol, which they estimated at approximately 16 to 18

beers and two to eight shots apiece. Raymond and Milton also admitted to

using cocaine that evening as well; however both men said David did not use

cocaine that night.

      {¶ 4} Around 3 a.m., David drove Raymond’s car home with Raymond as

a passenger. Milton followed behind them in his own car to make sure they

arrived safely. David lived on W. 48th Street. Milton and Raymond admitted

they were highly intoxicated but maintained David and Milton could operate

the vehicles.

      {¶ 5} In the area of W. 48th Street and Koch Court, Raymond heard David

exchange words with someone.      Raymond did not see anyone but noticed

David was agitated.1 David parked the car behind his house and ran through

the alley up to W. 48th Street. Raymond followed about twenty seconds later.


       Raymond said he was crouched down in the car because he was concerned
       1

about David’s erratic driving.
At that point, Raymond heard gunshots and saw David running back towards

him.    Raymond shouted, “we’re cool, we’re cool” in an effort to stop the

gunfire.   The person kept shooting at them. Street lights were on and

Raymond saw a man standing in the street approximately ten to 20 feet away

from him. Raymond believed the person was wearing a hooded jacket, which

he later described as a “big jacket.” He got a good look at the individual’s face

but said “his height and weight threw me off.” Raymond explained that he is

not good at estimating height and weight and could only describe the shooter’s

body type as being between thin and real heavy.

       {¶ 6} Raymond and David ran towards David’s house.              Raymond

observed David limping and still heard gunshots. About five shots were fired.

 Then, Raymond saw David collapse after being hit through the back. He

was running for his life and did not turn back around to see where the shooter

was standing. Raymond tripped over David, turned David over and saw blood

coming out of David’s chest. Raymond rode in the ambulance with David to

the hospital but returned to the scene after learning that David was dead.

Raymond acknowledged that he was intoxicated during the event and was also

in a state of shock.

       {¶ 7} Raymond gave a description to police that night where he estimated

the shooter’s height as approximately six feet and his weight as 180 pounds.

At trial, however, Raymond said “the description, the height and the weight at
that time couldn’t have been right.” Police did not show Raymond a line-up

nor did they ask him to identify anyone from a photo array.

         {¶ 8} Milton corroborated much of Raymond’s testimony about the

evening. He saw David turn right onto Koch Court but does not recall seeing

anyone near the intersection.     He went to the side door of David’s house

expecting to be let inside. Instead, he heard David arguing with someone

towards the front of the house. David was aggravated and sounded angry or

mad. Milton did not recognize the other voice but it was a man who also

sounded aggravated. Milton ran to the front of the house and saw Raymond

and David on one side of Koch Court and a man on the other side of the street

near a car. Raymond was trying to break up the argument. Although the

street lights were on, the man was standing in a shadow area and wore all

black.     Like Raymond, Milton had difficulty determining the man’s height

and estimated it was between 5’10” to 5’11”.       It was a black male who

appeared to weigh more than 250 lbs.

         {¶ 9} Milton started running and heard gunfire. David came up behind

him, said “I’m hit” and fell over.     Milton called 911 and was in a panic.

Milton gave a statement to police that night but was devastated by his friend’s

death. Milton described himself as being “out of control.” Police asked him

to look at someone near the intersection under the street light but he did not

think it was the shooter. He was closer to this person than he was to the
shooter. Raymond got closer to the shooter than Milton did. Milton did not

observe any other people in the area at the time of the shooting besides David,

Raymond, and the shooter.

      {¶ 10} Officers who responded to the scene described Raymond and

Milton as intoxicated with slurred speech.     Police received information via

911 from an anonymous caller who claimed to have witnessed the crime. The

911 tapes that related to the shooting were introduced and Dennis Smith

authenticated his voice as the caller. As a result of these calls, the crime

scene was expanded to include the area of 3289 W. 48th Street, which was

defendant’s residence as well as the residence of Dennis Smith’s son.

      {¶ 11} Dennis Smith explained that his son Dan had witnessed the

shooting and asked him to make the call. Dan was afraid to get involved

because he recognized his neighbor, who is the defendant, as the shooter.

Dennis said he made the 911 calls because he was in fear for his son’s life. The

trial court provided a limiting instruction to the jury specifically instructing

that the 911 tapes were not being offered to prove the truth of the matters

asserted in them but for a different purpose.      During his trial testimony,

Dennis admitted to the jury that he was not at the scene that night contrary to

what he had said on the 911 tapes. He acknowledged that his first 911 call

was false because he was not an eyewitness. In a subsequent 911 call, Dennis
Smith disclosed that he was not an eyewitness but was relaying information

provided by his son, Dan.

      {¶ 12} Police testified that bullets bounce when they hit a hard surface

and are not always found at the exact location from which they were

expended.     Photographs taken of the scene on the night of the shooting

reflect that there was water on the ground.      Police radio communications

alerted the officers that the shooter was a heavyset black male.

      {¶ 13} Dan Smith lived in the same building as defendant on December

22, 2007. Dan was living with his girlfriend Crystal Demopoulos. He was

familiar with defendant’s voice and had observed him standing and walking on

previous occasions.

      {¶ 14} Dan and Crystal were awake between 4 and 5 a.m. that day.

Crystal was watching Dan play video games on a gaming system she gave him

that day as a Christmas gift. They heard an argument outside.              Crystal

went to the window first and Dan later got up to look outside as well.

      {¶ 15} Dan saw defendant wearing darker clothes standing and talking

on the phone. He saw a group of people across the street. Defendant shot a

couple times towards the group of three to four white people. They were all

moving.     Dan believed they were going towards their house.            After the

shooting, Dan heard defendant say nonchalantly, “I just had to shoot this

guy.” Dan identified defendant as the shooter but said defendant was about
80 pounds heavier at the time of this trial. According to Dan, defendant has a

distinct walk and voice.

         {¶ 16} Dan saw one shot but heard approximately three to four shots

fired.    Defendant started shooting in the driveway and moved out to the

street. Crystal watched the incident longer than Dan did. Dan was on the

floor and pulled Crystal down for safety.

         {¶ 17} Dan wanted to remain anonymous but called his dad as well as

911. He did this because he noticed that the police were looking in the wrong

area.     He saw the police expand the crime scene after he provided them

information.

         {¶ 18} Dan observed defendant around one of the cars and moving

towards the street near the apron of the driveway. Dan was about 20 to 25

feet away. He was unsure if there were six to eight black males on the street.

 In his previous testimony, Dan said he saw 6 to 8 black males in hoods

walking across the street. The blinds were down on his windows.

         {¶ 19} Crystal testified that she heard arguing and went to the window to

look out of the blinds. She saw defendant walking to the back with a man she

did not recognize but who was white with a slender build. Defendant was

wearing a black hooded sweatshirt. She later saw defendant shooting a gun

near the apron of the driveway. She recognized defendant. Dan eventually

pulled her down to the ground and then the couple gathered their dogs and
turned off the lights in their apartment. They were afraid and did not want

to be involved.

      {¶ 20} Crystal heard about three to four shots.     Crystal also heard

defendant on the phone saying he shot someone. Defendant went back to his

house. The couple was scared and abruptly moved out of that residence a few

days later. Crystal testified that she did observe a group of people crossing

Koch Court whom she believed were all black males. However, she did not

see these individuals do anything in connection with the shooting.       Det.

Everett, who took Crystal’s statement, testified that there was no physical

evidence found on the scene that would indicate that these unidentified six to

eight males played any role in the shooting.

      {¶ 21} Dan was not able to make an identification from the photo array

but insisted he could identify his neighbor if he saw him. Crystal was able to

immediately identify defendant’s photograph from the array as the shooter.

      {¶ 22} Both Dan and Crystal testified that they had previous encounters

with the defendant before witnessing the shooting. They described incidents

where defendant threatened to kill their dogs and also an occasion where Dan

insisted that defendant turn down the radio. Defendant resided in the W.

48th residence for approximately one month prior to the shooting.

      {¶ 23} David’s live-in girlfriend, Beatrice Lee, testified that she was

awakened by banging on the door on December 22, 2007. She opened the
door and saw Milton on his cell phone and David in Raymond’s arms.

Raymond was saying, “he’s gone.”

      {¶ 24} Police recovered two bullet casings that were found near a

manhole cover at the intersection of W. 48th and Koch Court around 6 a.m. on

December 22, 2007. This was consistent with the location of the shooter as

described by Raymond and Milton.

      {¶ 25} Various officers testified about the investigation that took place on

that day.    Lt. Foley was in charge of the crime scene.      Lt. Foley brought

defendant out of his house and into the street for a potential cold stand

identification by Milton.

      {¶ 26} Prior to Lt. Foley’s testimony the court held an extensive hearing

on defendant’s objections to portions of his anticipated testimony, specifically

non-verbal communications made by persons who were not testifying at the

trial. The trial court made various rulings and Lt. Foley was given precise

parameters as to the scope of his testimony before the jury. He was allowed

to give only limited testimony as to the details of his investigation, which the

defense agreed was permissible.      The court indicated that Lt. Foley could

testify that “based on what he learned, [he] was suspicious of what [he] saw.”

 However, the court otherwise sustained the defense objection and prohibited

Lt. Foley from testifying about certain facts that had lead him to defendant’s

residence.
      {¶ 27} Lt. Foley explained that he saw individuals hanging out of a

window.   He then went to defendant’s residence and a woman opened the

door. About ten seconds later, a heavyset man walked into the kitchen area

and was wearing pajama pants.       Lt. Foley asked the man if he had been

outside and the man said no. However, Lt. Foley observed wetness on the

bottom of the man’s pajama pants, which made him disbelieve the man’s

statement that he had not been outside. For that reason, Lt. Foley decided to

bring him out for a cold stand identification procedure.      This man was

defendant. Ultimately, Milton did not identify defendant as the shooter and

he was released.

      {¶ 28} Officers   Wagner and Katyinski assisted Lt. Foley in the

investigation. Officer Wagner testified that he noticed that the bottoms of

defendant’s pants were wet and he did not observe defendant walking through

any water.    Wagner also testified that defendant appeared to have gained

weight since the time of the shooting. Wagner corroborated that Milton was

unable to identify defendant as the shooter.

      {¶ 29} The trial court also allowed the testimony of the Cuyahoga County

Coroner, Dr. Frank Miller, over defendant’s objection.    Dr. Miller testified

concerning the autopsy report completed for David Bober, the decedent.

Although Miller was not personally present for the autopsy, it was performed

by individuals under the employ and supervision of his department but who
were no longer available to testify. The records confirmed that David had

consumed at least nine to ten drinks but did not indicate the presence of any

cocaine in his system.

      {¶ 30} Investigators did not find any fingerprints on the recovered shell

casings or any DNA linking defendant to the crime scene.

      {¶ 31} Following the jury’s verdict and his conviction, defendant pursued

the instant appeal.

      {¶ 32} “I.   Defendant was denied due process of law and a fair trial when

the court permitted the officer in charge of the scene to testify to the truth of

statements attributable to defendant.”

      {¶ 33} Defendant contends that the trial court erred by allowing Lt. Foley

to testify about certain circumstances that lead to his decision to bring

defendant before an eyewitness for potential identification as the shooter. At

the time Lt. Foley went to defendant’s house, defendant was allegedly sleeping

and the ground outside the house was wet. Lt. Foley testified that defendant

denied being outside, however, Lt. Foley observed that the bottom of

defendant’s pants were wet. This observation led Lt. Foley to the conclusion

that defendant lied when he said he had not been outside. Lt. Foley stated

that he did not believe that particular statement due to his observations that

were inconsistent with it. Defendant asserts that Lt. Foley explanation was
an improper comment on defendant’s credibility that invaded the province of

the jury and entitles him to a new trial.

      {¶ 34} Defendant relies on case law that holds it is improper for a witness

to vouch for the credibility of another witness. State v. Young, Cuyahoga App.

No. 79243, 2002-Ohio-2744 (holding that it was plain error when a detective

testified that a witness was “telling the truth.”) This court has held that an

officer is not vouching for a witnesses credibility by explaining the

investigative procedure he followed and, therefore, the testimony is “admitted

for proper purposes.”         See State v. Vales, Cuyahoga App. No. 81788,

2003-Ohio-6631, ¶33, citing, In re: Shubutidze (Mar. 8, 2001), Cuyahoga App.

No.   77879;   see,   also,   State   v.   Axson,    Cuyahoga   App.   No.   81231,

2003-Ohio-2182, ¶67.

      {¶ 35} In this case, Lt. Foley’s testimony was directed to defendant’s

single comment that he had not been outside that was reasonably inconsistent

with the wet cuffs that Lt. Foley observed on defendant’s pants. This limited

testimony did not invade the province of the jury. Lt. Foley’s comments were

offered merely to explain why he decided to present defendant to the

eyewitness for a potential identification.          Notably, Lt. Foley and Officer

Wagner told the jury that the eyewitness was unable to positively identify

defendant as the shooter and, therefore, defendant was released. Defendant

maintains that the trial court also erred by allowing Det. Everett to testify
that his investigation led him to the conclusion that six to eight unidentified

black males allegedly observed by Crystal Demopoulos “had no role in the

crime that occurred” or the shooting. Defendant offers no case law in support

of why the admission of this testimony was error and we find none.

      {¶ 36} This assignment of error is overruled.

      {¶ 37} “II.   Defendant was denied his right of confrontation and

cross-examination when the court permitted hearsay information.”

      {¶ 38} Evid.R. 801(C) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”

      {¶ 39} Here defendant challenges the portions of Lt. Foley’s testimony

where he said he “received information that directed [him] to that area

(defendant’s residence),” that he observed people in the windows of a

residence, and Lt. Foley’s explanation of what he did upon encountering a

black female who answered defendant’s door.2

      {¶ 40} Defendant maintains the comments amounted to testimony of

“nonverbal conduct” and therefore qualified as inadmissible hearsay



      2
        Although defendant also complains about Lt. Foley’s indication that he did
not receive certain information from police officers, the court sustained defendant’s
objections to it and Lt. Foley made no indication who supplied the subject
information.
statements and the admission of the testimony violated his right to

confrontation.

      {¶ 41} As set forth above, the trial court held an extensive hearing on the

scope of Lt. Foley’s testimony and sustained defendant’s objections to

testimony concerning any verbal statements and nonverbal conduct made by

non-testifying witnesses. Defense counsel agreed that Lt. Foley’s testimony

that he observed people hanging out of a window would not qualify as hearsay.

 Lt. Foley’s testimony to the jury was limited to saying that he saw people in a

window and then he went to the rear residence of 3289 W. 48th Street. This

testimony did not describe any nonverbal conduct that could be construed as

an assertion being offered to prove the truth of the matter.

      {¶ 42} Likewise, the trial court instructed Lt. Foley that he could not

testify as to anything said by the female who answered the door of defendant’s

residence. And, he did not. Instead, Lt. Foley testified that he asked specific

questions to the female, received responses (but did not provide the substance

of the responses) that prompted further action by him. This testimony does

not include a description of any verbal or nonverbal conduct that could be

construed or intended as an assertion by the woman who answered the door.

      {¶ 43} While the trial court sustained defendant’s objection and excluded

testimony of nonverbal conduct and statements of non-testifying witnesses, it

did allow Lt. Foley to explain his conduct during the investigation. “[W]here
statements are offered to explain an officer’s conduct while investigating a

crime, such statements are not hearsay.” State v. Blevins (1987), 36 Ohio

App.3d 147, 149, 521 N.E.2d 1105, citing, State v. Thomas (1980), 61 Ohio

St.2d 223, 232, 15 O.O.3d 234, 240, 400 N.E.2d 401. The court in Belvins

went on to hold that: “In order to admit out-of-court statements which explain

an officer’s conduct during the course of a criminal investigation, the conduct

to be explained must be relevant, equivocal and contemporaneous with the

statements. In addition, the statements must meet the standard of Evid.R.

403(A).”   Id. at paragraph one of the syllabus.     This court applied these

conditions in State v. Steward, Cuyahoga App. No. 80993, 2003-Ohio-1337,

¶27-28.

      {¶ 44} Assuming any of Lt. Foley’s testimony could be construed to

include any out-of-court statements, whether verbal or nonverbal, his

testimony was appropriately limited under the above-cited conditions.          He

limited his testimony to relevant and contemporaneous events that served to

explain his conduct during the investigation. Further, the probative value of

the identified portions of his testimony was not substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury as proscribed by Evid.R. 403(A). This assignment of error is overruled.
      {¶ 45} “III.   Defendant was denied due process of law and fair trial when

the court permitted Dan Smith, a prosecution witness to read his entire police

statement to the jury.”

      {¶ 46} Under cross-examination, Dan Smith was questioned about the

statement he made to police.       Defense counsel read certain excerpts from

Dan’s statement to police, including his description of the suspect’s height and

weight. Counsel also questioned Dan as to what he told police concerning his

observations of people in the street, which was inconsistent with what he

testified to at trial. On re-direct, the state had Dan read the entire statement

into the record.

      {¶ 47} This court has held, “[w]here a portion of a witness’ previous

statement is introduced to illustrate an inconsistency with his present

testimony, the entire statement is admissible in rebuttal. Shellock v. Klempay

Bros. (1958), 167 Ohio St. 279, at 282.3 This court acknowledged the state’s

right to use the entire document to rehabilitate a witness in State v. Ciasullo


       “[W]here, on cross-examination, a witness is impeached by a showing of prior
       3

statements made by him in a written instrument and apparently inconsistent with
his statements on direct examination, an effort to rehabilitate such witness by
reference to the same document used to impeach him is proper so long as the
statements referred to and sought to be introduced in such effort to rehabilitate
such witness are confined to an explanation of such apparent inconsistencies and do
not serve to inject new issues into the case.” Shellock, 167 Ohio St. at 282, 148
N.E.2d 57.
(Jan. 21, 1981), Cuyahoga App. Nos. 42702 and 43172, unreported, at 12-13.

See, also, Motorists Mut. Ins. Co. v. Vance (1985), 21 Ohio App.3d 205, 207;

State v. Sprawl (1982), 3 Ohio App.3d 406, 407; Ketterer v. Red Star Transit

Co. (1956), 78 Ohio Law Abs. 123.” State v. Rivera (Nov. 9, 1989), Cuyahoga

App. No. 56158; see, also, State v. Harvey (Mar. 6, 1975), Cuyahoga App. No.

33157 (admission of parts of statement that are irrelevant or material to

explanation of apparent inconsistencies is harmless error and not grounds for

reversal where the record contains substantial evidence that supports the

guilty verdict against the appellant.)

      {¶ 48} Defendant generally asserts that he was prejudiced and denied a

fair trial when Dan’s entire statement was read into the record on re-direct.

However, defendant does not set forth any substantive argument as to how he

was prejudiced by its admission nor does he point to any portions that were

irrelevant or immaterial to explain the apparent inconsistencies the defense

raised on cross-examination between Dan’s statement to police and his trial

testimony. Finally, there is substantial evidence in the record that supports

the guilty verdict against defendant. Accordingly, this assignment of error is

overruled.

      {¶ 49} “IV.    Defendant    was    denied   his   constitutional   right   of

confrontation when the court allowed a non-examining coroner to testify as

[to] the cause of death, whose testimony the court enhanced before the jury.”
      {¶ 50} Defendant challenges the court’s declaration of the Cuyahoga

County Coroner as an expert and submits that the admission of his testimony

violated his confrontation rights because Dr. Miller did not participate in the

autopsy or the report.

      {¶ 51} Defendant’s contention that it was error to qualify Dr. Frank

Miller as an expert is unsupported by the record or the law. Evid.R. 702 sets

forth the instances in which a witness may be qualified as an expert, including

that a person may be qualified as an expert witness if the proponent of such

witness can establish that the witness has knowledge of scientific, technical,

or other such specialized nature. See Evid.R. 702. The record amply reflects

Dr. Miller possessed such knowledge.

      {¶ 52} Defendant relies on United States v. Johnson (6th Cir. 2007), 488

F.3d 690, in arguing the court erred by identifying Dr. Miller as an expert in

front of the jury. However, in Johnson, the Sixth Circuit upheld the trial

court’s classification of a police officer as an expert. Although the court in

Johnson did indicate a preference that the trial courts refrain from advising

the jury of a qualified witness’s designation as an expert, it determined that

the trial court had not committed plain error by doing so. In this case, the

defense did not object to Dr. Miller’s qualifications as an expert, the record

supports his qualifications as an expert, and the court’s recognition of his

expert qualifications before the jury was not plain error.
      {¶ 53} Defendant next asserts that the admission of Dr. Miller’s

testimony violated his right of confrontation and cross-examination based on

the Supreme Court precedent of Melendez-Diaz v. Massachusetts (2009),

       U.S.        , 129 S.Ct. 2527, 174 L.Ed.2d 314.

      {¶ 54} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177, the United States Supreme Court determined it is error to

admit a witness’s testimony against a defendant unless the witness appears at

trial or, if the witness is unavailable, the defendant had a prior opportunity for

cross-examination. Id. at 54. Subsequently, the Court held in Melendez-Diaz,

that it also violated the right to confrontation where a lab analyst’s notarized

certificates4 were admitted without affording the defendant an opportunity to

cross-examine the lab analyst.

      {¶ 55} In Melendez-Diaz, the Supreme Court held that the certificates

were testimonial in nature because they were “‘made under circumstances

which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial,’” Melendez-Diaz, 129

S.Ct. at 2539, quoting, Crawford, 541 U.S. at 52. The Court further held that

the certificates did “not qualify as traditional official or business records.” Id.

at 2538.      The Court reasoned,“[b]usiness and public records are generally


       The certificates indicated the substance was cocaine and set forth the weight
       4

of      the        cocaine       at      issue       in      that       prosecution.
admissible absent confrontation not because they qualify under an exception

to the hearsay rules, but because — having been created for the

administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial — they are not testimonial. Whether or not they

qualify as business or official records, the analysts’ statements here —

prepared specifically for use at petitioner’s trial — were testimony against

petitioner, and the analysts were subject to confrontation under the Sixth

Amendment.” Id. at 2539.

      {¶ 56} After Crawford was decided, the Ohio Supreme Court addressed

the exact issue that defendant is presenting now. That is, whether it violated

the appellant’s right to confrontation when the trial court allowed the Summit

County medical examiner at the time of the trial, Dr. Kohler, to testify about

the decedent’s autopsy even though a different doctor had conducted the

autopsy. State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621.

 The court held that “under Crawford * * * autopsy records are admissible as

nontestimonial business records.” The court went on to “conclude that Dr.

Kohler’s expert testimony about the autopsy findings, the test results, and her

opinion about the cause of death did not violate Craig’s confrontation rights.”

Craig, 2006-Ohio-4571, ¶88.      This is not in conflict with Melendez-Diaz

because unlike the lab certificate at issue in that case, which were prepared

solely for use at trial, the autopsy report was non-testimonial.
      {¶ 57} In this case the defendant was not contesting the conclusions or

opinions of the autopsy report and the findings were not central to the

determination of the criminal agency. No one disputed that David Bober’s

death was a homicide caused by a fatal gunshot wound or that he was

intoxicated on the night in question; which was essentially the substance of

the coroner’s testimony in this case.          Accordingly, defendant’s Sixth

Amendment right to confrontation was not implicated or violated by the

admission of Dr. Miller’s testimony.

      {¶ 58} Our conclusion is consistent with the decision reached by the

Fourth Appellate District in State v. Hardin, Pike App. No. 10 CA 803,

2010-Ohio-6304, ¶17.    In Hardin, the court also distinguished an autopsy

report from the scope of records addressed by Melendez-Diaz and found it is a

business record and the admission of it does not violate the right to

confrontation because it is non-testimonial.

      {¶ 59} This assignment of error is overruled.

      {¶ 60} “Defendant was denied due process of law and his right of

confrontation when the court admitted 911 calls from Dennis Smith.”

      {¶ 61} We review the admission of evidence, including 911 tapes, under

the abuse of discretion standard. State v. Kinley (1995), 72 Ohio St.3d 491,

497, 651 N.E.2d 419.
      {¶ 62} Defendant challenges the admission of the content of Dennis

Smith’s 911 calls, asserting they were inadmissible hearsay pursuant to

Evid.R. 801(C).

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

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

the matter asserted.” Id.

      {¶ 64} Dan testified at trial and explained his desire to remain

anonymous and that he did not want to be involved. He wanted, however, to

notify police that they were searching the wrong area. He called his dad who,

in turn, called 911.   Thereafter, the crime scene was expanded to include

Dan’s residence.

      {¶ 65} Dennis identified his voice on certain 911 tapes where he provided

information to assist the police during their contemporaneous investigation.

Dennis testified that his son Dan contacted him and said he had witnessed his

neighbor shooting at people. Dennis made the 911 calls because he was in

fear for his son’s safety and because Dan indicated he did not want to be

involved.

      {¶ 66} Both Dan and Dennis Smith were available, testified at trial, and

were subjected to cross-examination.       Dennis even admitted that he had

falsely stated that he had witnessed the shooting in his initial call to 911.
      {¶ 67} When defendant raised an objection at trial to the admission of the

911 tapes made by Dennis, the court provided a limiting instruction. The

jurors were told that the tapes were not being admitted to prove the truth of

statements made on them but for a different purpose. As stated, it was even

established that Dennis’s statements were not true, specifically that he had

witnessed the incident. Where the 911 tape is being offered for a reason other

than to prove the truth of the matters asserted, it “does not meet the definition

of ‘hearsay’ set forth in Evid.R. 801(C).” Kinley, 72 Ohio St.3d at 498.

      {¶ 68} Even if the admission of Dennis’s 911 calls        were considered

improper, it was at most harmless error. Crim.R. 52(A).       The content of the

subject tapes was consistent with the trial testimony of Dennis and Dan

Smith.    This assignment of error is overruled.

      {¶ 69} “VI.    Defendant was denied due process of law by reason of the

conflicting and inconsistent instruction on voluntary manslaughter.”

      {¶ 70} “VII.   Defendant was denied due process of law when the court

improperly instructed on causation.”

      {¶ 71} Defendant did not object to the court’s jury instructions relating to

these assignments of error; therefore, we review them for plain error. See

State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, at ¶ 25.

See, also, Crim.R. 30(A). An erroneous jury instruction does not amount to
plain error unless, but for the error, the result of the trial clearly would have

been different. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804.

      {¶ 72} An appellate court must view the jury instructions in the context

of the overall charge rather than in isolation. State v. Price (1979), 60 Ohio

St.2d 136, 398 N.E.2d 772. Here, considering the jury instructions as a whole,

we conclude that the trial court provided the jury with adequate legal

information on the elements of voluntary manslaughter and causation.

      {¶ 73} With respect to the instructions on voluntary manslaughter,

defendant believes the court’s instructions concerning voluntary manslaughter

were inconsistent. The court properly instructed the jury as to the elements

of murder and voluntary manslaughter.          The jurors were explicitly and

plainly instructed that, in order to convict defendant of the inferior degree

offense of voluntary manslaughter, it must find the presence of the additional

mitigating factor that “defendant acted knowingly while under the influence of

a sudden passion or in a sudden fit of rage either of which was brought on by

serious provocation occasioned by David Bober that was reasonably sufficient

to incite the defendant into using deadly force.”      The jury was instructed

that defendant must prove the mitigating factor by a preponderance of the

evidence.

      {¶ 74} The court went on to explain that “[i]f the weight of the evidence is

equally balanced or if you’re unable to determine which side of an issue has
the preponderance, then it has not been established — then they have not

established such issue. If the defendant fails to establish the issue of sudden

passion or fit of sudden rage, the state still must prove to you beyond a

reasonable doubt all of the elements of the crime charged.”

      {¶ 75} Although defendant finds this instruction inconsistent, the court’s

instructions on voluntary manslaughter were clearly stated to the jury and

proper when considered in context. The subject instruction simply indicates

that if the defendant did not carry his burden of establishing the mitigating

factor necessary to support a voluntary manslaughter conviction, the state

still bore the burden of proving the elements necessary to sustain a murder

conviction beyond a reasonable doubt before it could return a guilty verdict on

that charge. The defendant has not established plain error in any case. The

jury clearly found that defendant had established the mitigating factor of

voluntary manslaughter by a preponderance of the evidence since it convicted

him of the inferior degree offense. Therefore, defendant has not established

how a different instruction would have affected the outcome.         The sixth

assignment of error is overruled.

      {¶ 76} Defendant also contends that the court’s causation instructions

permitted the jury to convict him even if David Bober’s death was caused by

another person. The court’s instructions at issue track the language employed

in 4 Ohio Jury Instructions 2010.     Despite defendant’s contentions to the
contrary, the trial court’s instructions on causation were a proper statement of

the law. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d

1061, State v. Shopshire, Cuyahoga App. No. 85063, 2005-Ohio-3588; State v.

Allen, Cuyahoga App. No. 76672, 2003-Ohio-24; see, also, State v. McClain,

Cuyahoga App. No. 77740, 2002-Ohio-2349.           Defendant has not established

plain error in this regard and the seventh assignment of error is overruled.

      {¶ 77} “VIII.   Defendant was denied due process of law when he was

convicted of voluntary manslaughter.”

      {¶ 78} Here     defendant   asserts   that   his   conviction   for   voluntary

manslaughter was against the sufficiency of the evidence.

      {¶ 79} An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted

at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

      {¶ 80} Voluntary manslaughter is proscribed by R.C. 2903.03 as follows:

      {¶ 81} “(A) No person, while under the influence of sudden passion or in a

sudden fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the person into

using deadly force, shall knowingly cause the death of another or the unlawful

termination of another’s pregnancy.”

      {¶ 82} Defendant contends there is insufficient evidence to establish that

he acted knowingly while under the influence of a sudden passion or fit of rage

as required to submit the cause to the jury.       To the contrary, the record

contains testimony from multiple witnesses that David was engaged in an

angry discussion with another man just prior to being shot. Both Raymond

and Milton heard David yelling at another man.          Milton said that man

sounded agitated and mad.        Dan and Crystal said they saw defendant fire a

gun, after which he picked up his cell phone and said he just had to shot

someone.     Accordingly, there was sufficient evidence, if believed, would

support a finding of the elements necessary to sustain a voluntary

manslaughter conviction.

      {¶ 83} “IX.   Defendant was denied due process of law when the court

overruled his motion for judgment of acquittal and the verdict is against the

manifest weight of the evidence.”

      {¶ 84} Defendant argues the evidence was insufficient to support his

conviction or it was against the manifest weight of the evidence concerning his

identification as the shooter.
     {¶ 85} The sufficiency of the evidence standard is set forth above.   To

warrant reversal of a verdict under a manifest weight of the evidence claim,

this court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine

whether, in resolving conflicts in evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. Thompkins, supra.

     {¶ 86} There is sufficient evidence to support a finding that defendant

was the shooter in this case. Both Dan and Crystal testified that defendant

was the shooter. This is sufficient evidence on which the jury could conclude

that defendant was the shooter. Further, the identification of defendant as

the shooter is not against the manifest weight of the evidence. The jury was

presented with testimony from many witnesses. While Milton was unable to

identify defendant as the shooter that night, he was highly intoxicated and in

a state of shock. Raymond was not given an opportunity to identify defendant

that night. The fact that Milton and Raymond’s descriptions of the height

and weight of the shooter appear inconsistent with defendant’s height and

weight, the fact remains that it was dark outside, the men were being shot at

as they observed this person, and they were very intoxicated.      Both men

testified at trial that they were not good at estimating height and weight.

And, Raymond testified that he believes that the description he gave that
night was wrong.      Conversely, Dan and Crystal were certain in their

identification of defendant as the shooter.     Both of these witnesses were

familiar with defendant, who was their neighbor, and they recognized his

distinctive walk and voice. There is no evidence that either Dan or Crystal

were under the influence of any substance that night and they both denied

having used any drugs or alcohol prior to witnessing the shooting.        While

there were some inconsistencies in the statements made by the witnesses over

the years, it was within the province of the jury to resolve the conflicts. We

cannot say that the jury clearly lost its way in convicting defendant of

voluntary manslaughter. This assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



      JAMES J. SWEENEY, JUDGE
      MARY EILEEN KILBANE, A.J., CONCURS;
      KATHLEEN ANN KEOUGH, J., DISSENTS.                    (SEE ATTACHED
      DISSENTING OPINION).



      KATHLEEN ANN KEOUGH, J., DISSENTING:

      {¶ 87} I respectfully dissent.   I would find merit to Monroe’s first and

fifth assignments of error, reverse his convictions, and remand for a new trial.

      {¶ 88} In his first assignment of error, Monroe argues that he was denied

due process of law and a fair trial when the court permitted the officer in

charge of the scene to testify to the truth of a statement attributable to

defendant.

      {¶ 89} Lt. Foley testified about his interactions with Monroe while he was

investigating the shooting. Lt. Foley testified that he and fellow officers went

to Monroe’s house after receiving information that the shooter lived in the

back house of 3289 West 48th Street. When Monroe came to the front door,

the officers questioned him regarding whether he had been outside earlier.

Monroe responded that he had not, that he was in bed.           Thereafter, the

prosecutor questioned Foley about his observations of Monroe and the

following colloquy occurred:
      {¶ 90} “Q:    All right. When you get to that front door, do you check him

in terms of his appearance in terms of your police thinking pattern? Are you

looking for anything?

      {¶ 91} “A:    Yes.

      {¶ 92} “Q:    All right. So what are you looking for?

      {¶ 93} “A:    I looked for any evidence that lets you know that he was

outside.

      {¶ 94} “Q:    What do you see?

      {¶ 95} “A:    The bottom back part of his pants were wet.

      {¶ 96} “Q:    Okay.   In your experience as a police lieutenant of – how

many years experience?

      {¶ 97} “A:    15 years.

      {¶ 98} “Q:    He had just told you he had not been outside, right?

      {¶ 99} “A:    That’s correct.

      {¶ 100} “Q:    You saw something that in your mind did what to that

statement?

      {¶ 101} [Defense counsel objects, which is overruled.]

      {¶ 102} “A:    He lied. He hadn’t –”

      {¶ 103} [Both defense attorneys object a multiple number of times; the

trial court does not make a ruling.]
      {¶ 104} “Q:   At that moment did you believe his statement based on the

visual observation of the wetness on the hem of his pants?

      {¶ 105} “A:   No, I did not.”

      {¶ 106} [Defense counsel objects, which is overruled.]

      {¶ 107} The    admission    and   exclusion   of   evidence,   including   the

admissibility of lay witness opinion testimony, rests within the sound

discretion of the trial court and will not be reversed on appeal absent an abuse

of discretion.   State v. Allen, Cuyahoga App. No. 92482, 2010-Ohio-9, 46.

An abuse of discretion connotes more than an error in law or judgment; it

suggests that a decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, citing

State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144.

      {¶ 108} The Ohio Supreme Court addressed the issue of expert witnesses

testifying to the truthfulness of statements from a declarant in State v. Boston

(1989), 46 Ohio St.3d 108, 454 N.E.2d 1220, modified on other grounds by

State v. Dever, 64 Ohio St.3d 401, 1992-Ohio-41, 596 N.E.2d 436.            Boston

concerned statements made in a sexual abuse case where the declarant was

the child victim. The court held that “an expert may not testify as to the

expert’s opinion of the veracity of the statements of a child declarant.” Id. at

the syllabus. In so holding, the court explained that “‘it is the factfinder, not

the so-called expert or lay witnesses, who bears the burden of assessing the
credibility and veracity of witnesses.’” Id. at 129, quoting State v. Eastham

(1988), 39 Ohio St.3d 307, 312, 530 N.E.2d 409.

      {¶ 109} The rule in Boston has been applied to lay witnesses, including

police officers, who testify as to the truthfulness of another. Specifically, the

Ohio Supreme Court stated that “a police officer’s opinion that an accused is

being untruthful is inadmissible.”      State v. Davis, 116 Ohio St.3d 404,

2008-Ohio-2, 880 N.E.2d 31, at 122, citing State v. Potter, Cuyahoga App. No.

81037, 2003-Ohio-1338, 39.

      {¶ 110} The State contends that Lt. Foley’s testimony about Monroe’s

credibility was proper, citing State v. Axson, Cuyahoga App. No. 81237,

2003-Ohio-2182. In Axson, this court held that because the defendant did not

testify at trial, commenting on the credibility of the defendant did not invade

the province of the jury. Id. at 68. However, I find Axson distinguishable

for three reasons. First, this court reviewed the alleged error in Axson under

a “plain error” analysis, which this court said “is limited to exceptionally rare

cases.” Id. at 64. Here, this error is reviewed under the abuse of discretion

standard. Second, in Axson, additional evidence of guilt was placed before the

jury. Id. at 68. Here, conflicting eyewitness identifications of the shooter

were made and the physical evidence presented did not correspond with the

testimony of the eyewitnesses who identified Monroe as the shooter. Finally,

in Axson, this court found that the defense used the defendant’s admission
that he lied to police as a tactical decision to gain credibility with the jury. Id.

 Here, Monroe did not use such tactics and did not offer any character

evidence.

      {¶ 111} The majority also relies on In re: Shubutidze in finding Lt. Foley’s

testimony proper.    However in Shubutidze, this court found the testimony

proper because it was used to rebut the defendant’s charge of impropriety of a

witness.

      {¶ 112} Accordingly, I would conclude that Foley’s testimony that Monroe

had “lied” and that he did not believe Monroe’s statement that he was not

outside expressed his opinion that Monroe was being untruthful and thus was

erroneously admitted.

      {¶ 113} I would further find that the admission of Lt. Foley’s testimony

was not harmless error.       Pursuant to Crim.R. 52(A), “any error, defect,

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

disregarded.” In order to find an error harmless, a reviewing court must be

able to declare a belief that the error was harmless beyond a reasonable doubt.

 State v. Lytle (1976), 48 Ohio St.2d 391, 403, 358 N.E.2d 623. A reviewing

court may overlook an error where the remaining admissible evidence,

standing alone, constitutes “overwhelming” proof of a defendant’s guilt. State

v. Williams (1983), 6 Ohio St.3d 281, 290, 452 N.E.2d 1323. “Where there is

no reasonable possibility that unlawful testimony contributed to a conviction,
the error is harmless and therefore will not be grounds for reversal.” State v.

Brown, 65 Ohio St.3d 483, 485, 1992-Ohio-61, 605 N.E.2d 46.

      {¶ 114} I cannot say that the admission of Foley’s testimony was

harmless error; this was not a case where there was overwhelming proof of

Monroe’s guilt such that the error was harmless beyond a reasonable doubt.

The only evidence presented to the jury that Monroe was the shooter were the

sometimes inconsistent and contradictory testimonies of Dan and Crystal,

Dennis’s 911 calls, and the inference generated from the opinion by Lt. Foley.

      {¶ 115} The testimonies of Dan and Crystal contradicted each other at

times and were inconsistent with their prior testimony and statements. Dan

testified that he witnessed Monroe arguing with the individuals in the

driveway. But, Crystal testified that Dan was on the couch during this time.

Crystal testified that she could not see who Monroe was yelling at, but Dan

testified that he saw a group of three or four white individuals arguing with

Monroe. Dan stated that he did not see the first gun shot, but he testified

that he saw Monroe put the cell phone down, pick up the gun, and shoot.

Crystal’s testimony, however, indicates that Dan was still sitting on the couch

when the first shot occurred.

      {¶ 116} Dan testified at the first trial that he remembered seeing six to

eight African-American males across the street when the shooting occurred,

but did not tell the police this information when he gave his initial statement.
But during this trial, he did not recall whether these individuals were there.

Dan testified that there were three or four white individuals in the driveway

arguing, yet he did not tell the police this information in his formal statement.

      {¶ 117} Additionally, it is interesting to note that although Dan testified

that he did not know these “white individuals,” he knew that when they left

the area, they were walking or running “toward their house.”           Moreover,

Crystal knew the screams she heard were coming from the “house of the

decedent.”

      {¶ 118} The only relevant physical evidence presented at trial were the

shell casings, which were found in the street in the intersection of West 48th

Street and Koch Court – where Raymond and Milton testified the shooting

occurred. Although the State went to great lengths to elicit testimony from

the responding officers regarding how shell casings are expended from a

firearm, how they can bounce when they hit a hard surface, or that the casings

can be kicked or moved, Officer Joseph Gulas testified that the casing he

found did not appear damaged. Moreover, no shell casings were found in the

driveway or surrounding area where Dan and Crystal testified the shooting

occurred, which was over 52 feet away from the location of the recovered shell

casings.

      {¶ 119} Furthermore, Milton was unable to positively identify Monroe in

the cold stand that occurred about an hour after the shooting; he told police
that Monroe appeared shorter and was too heavy to be the shooter. Milton

estimated that the shooter’s build was equal to his own. He testified that in

2007, he was five feet and nine inches in height and weighed approximately

230 to 240 pounds.

      {¶ 120} Raymond testified that he put the shooter’s build between “thin

and heavy.” In his formal statement to police, he referenced his own height,

which was five feet and nine inches, and he told police that the shooter was

taller than him. He also said the shooter weighed about 180 pounds.

      {¶ 121} Both Milton and Raymond testified that they are not good at

estimating height and weight, they each referenced their own build when they

gave their formal statements to police, which was three years prior to the trial.

 Irrespective of their ability to guess the exact weight and height, a person

should know whether someone is similar in height and weight to their own.

      {¶ 122} The defense introduced into evidence a captured computer screen

image of Monroe’s booking sheet printed from the Cuyahoga County Sheriff’s

computer system. The image, dated two weeks after the shooting, showed

front and side-profile pictures of Monroe and also contained information

regarding his height and weight. According to the printout, Monroe was five

feet and eight inches and weighed 380 pounds at the time of his arrest.

      {¶ 123} Finally, even though Lt. Foley believed that Monroe was being

untruthful and that the police knew that Dan Smith and Crystal identified
Monroe as the shooter, Monroe was not arrested that evening nor was a search

of his home conducted for any weapon. He was free to go home after the cold

stand where Milton stated that Monroe was not the shooter.

      {¶ 124} In light of these inconsistencies in the evidence, I would not say

that overwhelming proof of Monroe’s guilt existed and that Lt. Foley’s opinion

testimony was harmless beyond a reasonable doubt.             I would sustain

Monroe’s first assignment of error.

      {¶ 125} I would also find merit in Monroe’s fifth assignment of error,

where he argues that his right of confrontation and cross-examination was

violated when the court admitted and allowed the 911 calls made by Dennis

Smith to be played before the jury. The admission of these calls does not

invoke the right of confrontation under the Confrontation Clause because the

caller, Dennis Smith, testified at trial regarding the tapes.       Rather, the

correct challenge to the tapes is that they were hearsay.

      {¶ 126} Dennis Smith called 911 three times.   The first time he called, he

gave the 911 operator a “tip.” He told the operator that he witnessed the

shooting, he identified who committed the act, and he indicated where police

could find evidence, based “upon what he saw.”       Dennis Smith essentially

pretended to be his son. In the two subsequent calls, Dennis revealed that he

was not a witness to the shooting, but was calling on behalf of his son because

his son was scared of getting involved and of Monroe.           Dennis had no
first-hand knowledge of the events he was describing to the operator, and was

only relaying information told to him by his son. This is classic hearsay.

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

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

the matter asserted.” Evid.R. 801(c).

      {¶ 128} Typically, 911 calls fall under an exception to the hearsay rule

because they are admissible either as excited utterances under Evid.R. 803(2)

or present-sense impressions under Evid.R. 803(1).          See State v.     Rose,

Cuyahoga App. No. 89457, 2008-Ohio-1263, citing State v. Banks, Franklin

App. No. 03AP-1286, 2004-Ohio-6522. However, in this case, Dennis Smith

was relaying to the 911 operator what his son previously told him. This is not

an excited utterance or a present sense impression because there was time for

reflection by both Dennis Smith and Dan.

      {¶ 129} The majority opinion finds that the tapes are not hearsay because

they were offered for a different reason other than to prove the truth of the

matter asserted based on the trial court’s limiting instruction. At the request

of the defense, the trial court gave the following limiting instruction: “Ladies

and Gentlemen, this might be a good time to say, this tape is coming in for a –

not for the truth of what is being – the truth of the matter asserted in this

trial, but as an ability for you – for the witness to explain what he did.” I

would find this instruction insufficient because if the 911 calls were being
used to “explain what [Dennis] did,” the witness could have merely testified

that he called 911 after speaking with his son.

      {¶ 130} The State contends that the purpose of Dennis Smith’s 911 calls

and statements contained therein were solely to assist an ongoing emergency

and that the calls assisted the police in expanding their crime scene to include

Dan and Crystal’s driveway. Upon review of the 911 calls placed by Dennis

Smith, I find that the first minute of his first call would have been sufficient to

achieve the State’s identified purpose. The continuation of the call, including

the identification of the shooter and what the caller allegedly witnessed, and

the two subsequent calls, was improper and inadmissible as hearsay because

the caller did not have any firsthand information or knowledge of the events

he was describing.

      {¶ 131} Other admissible evidence was presented by the State to achieve

its stated purpose. Specifically, Dan testified that he called his father and

asked him to call the police to tell them that they were looking in the wrong

location for evidence. Officers testified that they received information from a

911 caller that the crime scene should be expanded to include the driveway

located at 3289 W. 48th Street.       The testimony by these other witnesses

achieved the State’s purpose of explaining subsequent conduct by the officers

in furtherance of their investigation and why the police expanded the crime

scene.
         {¶ 132} The content of Dennis Smith’s 911 calls provided no additional

information to assist the jury in its determination of the case because Dan

testified regarding what he witnessed, what he did, and how he reacted. The

jury should not have heard his testimony second-hand through his father’s 911

calls.

         {¶ 133} Reviewing the entire record, I would find that the admission of

the 911 calls made by Dennis Smith, even with the limiting instruction, was

not harmless error. The 911 tapes were used only to incite the passion and

prejudice of the jury by hearing Dennis Smith tell the operator multiple times

how “scared to death” his son was of Monroe, and that his son was afraid of

getting “accused of ratting” out someone.

         {¶ 134} The cumulative effect of these errors, i.e. Foley’s opinion

testimony and the playing of Dennis Smith’s 911 calls, deprived Monroe of a

fair trial. See State v. Demarco (1987), 31 Ohio St.3d 191, 196, 509 N.E.2d

1256 (conviction may be reversed where the cumulative effect of the errors

deprives a defendant of the constitutional right to a fair trial). I make this

finding while recognizing that because voluntary manslaughter is an inferior

offense to murder, if a new trial would be given to Monroe, the new trial would

be on the original charge of murder. State v. Duncan, 154 Ohio App.3d 254,

2003-Ohio-4695, 796 N.E.2d 1006, 45.
      {¶ 135} Although Monroe does not raise this issue as an assignment of

error, I find it worth discussing and actually, troubling, by the fact that the

trial court gave a voluntary manslaughter instruction.

      {¶ 136} Voluntary manslaughter is not a lesser included offense of

murder, but an inferior degree of murder. State v. Shane (1992), 63 Ohio

St.3d 630, 632, 590 N.E.2d 272.      Nevertheless, “a defendant charged with

murder is entitled to an instruction on voluntary manslaughter when the

evidence presented at trial would reasonably support both an acquittal on the

charged crime of murder and a conviction for voluntary manslaughter.” Shane,

citing State v. Tyler (1990), 50 Ohio St.3d 24, 37, 553 N.E.2d 576.

      {¶ 137} R.C. 2903.03(A), Ohio’s voluntary manslaughter statute, states:

“No person, while under the influence of sudden passion or in a sudden fit of

rage, either of which is brought on by serious provocation occasioned by the

victim that is reasonably sufficient to incite the person into using deadly force,

shall knowingly cause the death of another[.]”

      {¶ 138} An instruction on voluntary manslaughter is warranted only

when there is “evidence of reasonably sufficient provocation occasioned by the

victim[.]” Shane at paragraph one of the syllabus. For provocation to be

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

ordinary person beyond the power of his or her control.          Id. at 635.   “If

insufficient evidence of provocation is presented, so that no reasonable jury
would decide that an actor was reasonably provoked by the victim, the trial

judge must, as a matter of law, refuse to give a voluntary manslaughter

instruction.” Id. at 634.

      {¶ 139} Although Monroe requested the instruction, and the State did not

object, the trial court, as the gatekeeper of evidence, should have denied the

request, because the evidence of provocation simply did not exist.

      {¶ 140} “Serious provocation” needs to be “occasioned by the victim,” here,

David Bober.    R.C. 2903.03.    There was absolutely no evidence that the

argument in the driveway was between Monroe and David. Although there

was testimony that Monroe was arguing with a “white guy,” there was no

testimony that established that the “white guy” was David.

      {¶ 141} Assuming arguendo that the “white guy” was the victim, the law

is clear that “words alone will not constitute reasonable sufficient provocation

to incite the use of deadly force in most situations.” Shane at 637. See, also,

State v. Ballinger, Cuyahoga App. No. 79974, 2002-Ohio-2146; State v. Collins

(1994), 97 Ohio App.3d 438, 646 N.E.2d 1142.           Dan Smith and Crystal

testified that although they heard Monroe yelling at someone, they both said

that he was talking on his cell phone, put the phone down, fired the gun, then

put the cell phone back to his ear and stated “nonchalantly” and “casual as

hell” that he had to shoot someone. This does not sound like someone “under

the influence of sudden passion or in a sudden fit of rage.”
     {¶ 142} Moreover, both Raymond and Milton testified David and the

shooter were arguing, but no testimony was given that they were engaged in

anything but an argument. Accordingly, even if the shooter was “agitated

and mad” or an “angry discussion” occurred, this would be insufficient to

warrant an instruction on voluntary manslaughter.

     {¶ 143} The alleged provocation by the victim was not reasonably

sufficient provocation under R.C. 2903.03. Therefore, the trial court should

not have instructed the jury on voluntary manslaughter because the

mitigating evidence did not exist to warrant a jury instruction on voluntary

manslaughter.
