[Cite as State v. Foster, 2011-Ohio-2781.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95209



                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  MICHAEL FOSTER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-514430

        BEFORE:              Boyle, P.J., Sweeney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                          June 9, 2011
                                            2

ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building
Suite 940
526 Superior Avenue
Cleveland, Ohio 44114



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: William Leland
        Thorin O. Freeman
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} On August 3, 2001, the Miles Eagle Supermarket (“Miles store”) was robbed at

gunpoint.   The victim, Anwar Hamed, was shot twice during the course of this robbery, in his

shoulder and in his back, and as a result, was rendered a paraplegic.   Hamed died in March
                                               3

2007.   In August 2008, defendant-appellant, Michael Foster (referred to as “Michael” or

“Foster”), was indicted on multiple counts relating to the aggravated robbery of the Miles

store in 2001 and Hamed’s death nearly six years later.

                                Procedural History and Assigned Errors

        {¶ 2} The grand jury indicted Foster on six counts: Count 1, aggravated murder, in

violation of R.C. 2903.01(B); Count 2, aggravated murder, in violation of R.C. 2903.01(A);

Count 3, aggravated robbery, in violation of R.C. 2911.01(A)(1); Count 4, aggravated robbery,

in violation of R.C. 2911.01(A)(3); Count 5, having a weapon while under a disability, in

violation of R.C. 2923.13(A)(2); and Count 6, receiving stolen property, in violation of R.C.

2913.51(A).    The first four counts also carried one- and three-year firearm specifications, as

well as notice of prior conviction and repeat violent offender specifications.   Count 5, as well

as the notice of prior conviction and repeat violent offender specifications, was tried to the

court; the remaining counts and specifications were tried to a jury.

        {¶ 3} After an eight day trial, the jury found Foster guilty of the lesser included

offense of murder in Count 1, with the firearm specifications, guilty of both counts of

aggravated robbery, with the firearm specifications, and guilty of receiving stolen property as

charged in Count 6.    But the jury found Foster not guilty of aggravated murder as charged in

Count 2.   The trial court found Foster guilty of having a weapon while under a disability, and

guilty of both the notice of prior conviction and repeat violent offender specifications.
                                                4

       {¶ 4} The trial court sentenced Foster to 53 years to life in prison.      It merged all of

the firearm specifications and sentenced Foster to three years in prison for them, ordering that

they be served consecutive to and prior to all other terms.      It sentenced him 15 years to life

on Count 1.    It merged the aggravated robbery convictions and sentenced him 10 years on

Count 4, and ordered that it be served consecutive to Count 1.      It sentenced him five years on

Count 5, and ordered that it also be served consecutively to the other counts.        It sentenced

him to 12 months on Count 6, but ordered that it be served concurrently to the other counts.

The trial court also imposed a 10-year prison term for each of the repeat violent offender

specifications in Count 1 and Count 4, and ordered that they be served consecutive to each

other and all other counts.     The trial court then ordered that Foster’s sentence in this case be

served concurrently to the sentence he received in another case, where he had received 18

years in prison.     The trial court further notified Foster that he would be subject to five years

of mandatory postrelease control.

       {¶ 5} It is from this judgment that Foster appeals, raising five assignments of error for

our review:

       {¶ 6} “[1.] The state failed to present sufficient evidence to sustain a conviction

against appellant.

       {¶ 7} “[2.] Appellant’s convictions are against the manifest weight of the evidence.
                                              5

       {¶ 8} “[3.] The trial court erred when it admitted other acts testimony in violation of

R.C. 2945.59, Evid.R. 404(B) and appellant’s rights under Article I, Section 10 of the Ohio

Constitution and the Fourteenth Amendment to the United States Constitution.

       {¶ 9} “[4.] The trial court committed reversible error when it failed to give the jury

the accomplice testimony instruction.

       {¶ 10} “[5.] Appellant was denied effective assistance of counsel as guaranteed by

Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments of

the U.S. Constitution.”

       {¶ 11} We will address Foster’s third, fourth, and fifth assignments of error first.

                                               Jury Trial

       {¶ 12} The state presented 16 witnesses against Foster.     The facts established that on

August 3, 2001, at least two men robbed the Miles store at gunpoint, just after it opened.

Hamed, whose family owned the business, was shot first in his shoulder and then in his back.

As a result, he became paralyzed from the waist down.       When police officers arrived on the

scene, they found Hamed lying on the floor near the back of the store.     Hamed told them that

there were four men who robbed the store and the one who shot him was “a black male, about

5'7", ski mask, and ski goggles.”

       {¶ 13} At the hospital a couple of weeks later, Hamed gave police a statement where

he said that it was three men who robbed the store.     As for the shooter, Hamed said that “he
                                              6

came in, he had goggles on, they were clear, I could see him clearly, and shoots me right in

the shoulder, I tried to run and he shoots me in the back.    I fell on the ground, my gun fell

from my waist and I couldn’t move no more[.]”        Hamed described the shooter’s goggles as

“clear, maybe safety or motorcycle goggles.”        Hamed further told police that the shooter

demanded Hamed give him the keys to the office, which Hamed did.

         {¶ 14} Hamed said the men took his gun, wallet, and credit cards.   Police officers also

learned from Hamed’s brother that 20 cartons of cigarettes were taken, as well as

approximately $5,000.

         {¶ 15} Detective Joseph Daugenti testified that he was assigned the case on August 4,

2001, the day after Hamed was shot.      Detective Daugenti explained that he was aware that

James Sheron had been named as a suspect in another aggravated robbery case near the Miles

store.   Because of this, Detective Daugenti created a photo array with Sheron’s picture and

showed it to Hamed at the hospital.     Detective Daugenti explained that although Hamed had

described his shooter as wearing a ski mask, Hamed had told him that he was still able to get a

good look at the person who shot him.               Detective Daugenti testified that Hamed

“immediately without hesitation” chose Sheron as the person who shot him.           In Hamed’s

statement to police, he said that he was “totally positive[,] absolutely positive,” that it was

Sheron who shot him, and that he had “no doubt.”
                                              7

       {¶ 16} Detective Daugenti further testified that as a result of Hamed’s identification of

Sheron, Sheron was arrested.     Detective Daugenti attempted to interrogate Sheron when he

was in custody, but Sheron vehemently denied that he did it and became somewhat violent,

hitting the table and yelling, so Detective Daugenti ended his interrogation.

       {¶ 17} As part of his investigation, Detective Daugenti contacted CitiBank to obtain

Hamed’s credit card report.    He learned that Hamed’s credit card had been used

three places on the day of the shooting: a Sunoco gas station, the Maple Town

Bi-Rite at 12:50 p.m., and a Super K-Mart on Warrensville Center Road at

2:56 p.m.      He obtained sales receipts from the Bi-Rite and the K-Mart,

matching the times from the credit card report. He further obtained a list of

the UPC codes of the items purchased at both stores.

       {¶ 18} Detective Daugenti said that after he received the UPC codes of

the items purchased with Hamed’s credit cards, he obtained consent to search

Sheron’s home from Sheron’s mother. Detective Daugenti was looking for

the items purchased at the Bi-Rite or K-Mart. But he was unable to find any

evidence.

       {¶ 19} Detective Daugenti also obtained videos from K-Mart security

cameras. One of the videos shows two black males wearing baseball hats in

the check-out line at almost the exact time Hamed’s credit card was used.
                                               8

       {¶ 20} Several police officers testified that on September 13, 2001, they responded to a

call that an aggravated robbery had taken place at the Greenlite Beverage store (“Greenlite

store”).   Dispatch further described the vehicle involved as a small blue car and broadcasted

the car’s license plate number.

       {¶ 21} When officers arrived at the store, they found two men who had been

handcuffed and robbed.     The victims told the officers that two men had come into the store,

put handcuffs on them, took their wallets, money from the register, and alcohol.

       {¶ 22} Other officers were patrolling the area looking for a car that matched the

description.   Sergeant Pat Putnam saw a blue car pulling out of the Cleveland Motel.        He

verified that the plates matched the license plate number that was broadcast over the radio.

He followed the vehicle and notified other officers.        He lost sight of the vehicle in a

residential neighborhood, but other officers soon saw it and stopped it.

       {¶ 23} Michael Foster was the sole occupant of the blue car when police stopped it.

Police found an identification card and a credit card belonging to one of the robbery victims

from the Greenlite store in Michael Foster’s pocket.    On the back seat of the blue car, police

found a black “suitcase-type bag” with two handguns inside the bag, a Taurus .38 revolver and

a Smith & Wesson revolver.        There were also several hats and various items of clothing in

the car.   Michael Foster was the registered owner of the blue car.
                                                   9

         {¶ 24} Because officers knew that Michael Foster had been at the Cleveland Motel,

they went back to it and discovered that his brother, Lamont Foster (“Lamont”), was staying

there.   Police knocked on Lamont’s door.           Lamont let them in and cooperated with the

officers, letting them in the room to search it.

         {¶ 25} In the ceiling tiles of the room, police found two wigs and a Baltimore Ravens

baseball hat wrapped up inside a shirt.    In the dumpster behind the hotel, officers also found a

bag containing a wallet and keys belonging to one of the robbery victims from the Greenlite

store.

         {¶ 26} On November 6, 2001, Detective Daugenti received a tip that

Michael Foster was involved in the Miles store robbery. Michael Foster was

already in custody on other charges (relating to the Greenlite store robbery)

at that time.        Detective Daugenti interviewed Michael and testified that

Michael told him that he was involved in the Miles store robbery, but that he

was “basically the lookout,” and that it was his two brothers who actually

robbed the store, Lamont and Gilbert Foster.

         {¶ 27} After talking to Michael, Detective Daugenti learned from Gilbert

Foster’s employer that Gilbert had been at work at the time of the Miles store

robbery. Detective Daugenti then attempted to speak with Lamont, who was

also in custody at that time (for the Greenlite store robbery), but Lamont

would not talk to him.
                                     10

        {¶ 28} Detective Daugenti interviewed Michael again in late November

2001.     At that time, Michael agreed to give him a written statement

regarding the Miles store robbery.     Michael told Detective Daugenti that

Lamont and Gilbert came to his house and wanted to use his car, but did not

tell him why. Lamont then secretly told Michael that he and Gilbert were

going to rob the Miles store. Michael said that Lamont and Gilbert then left

his house and Michael followed them. Michael “took the railroad tracks,”

and “sat right across the street from the supermarket on the tracks.”

Michael stated, “[Lamont] went into the back door and Gilbert went in the

front so I started walking across the street. At first I did not think they were

going to do it. I saw [Hamed]. Looked like he was near the back door when

he started running. He was screaming, then [Lamont] was chasing behind

him and started shooting.”

        {¶ 29} Michael further told Detective Daugenti that “[Lamont] shot

twice and Gil was already inside the store. They had to be standing over

him. You could hear [Hamed] yelling in Arabic language then Gil grabbed

[Lamont.]     From what I found out later, [Lamont] was going to shoot

[Hamed] in the head because [Hamed] was talking in Arabic and was not

telling him where the money was. Gil grabbed the keys from [Lamont] and

went *** to the check cashing booth. He was up there for a minute and came
                                      11

back with some stuff. [Lamont] was at the register taking money out of the

register. That is when I went back to my house. That is all I seen at that

point.”

      {¶ 30} Detective Daugenti testified that Michael also told him that he

knew Lamont took a .38 caliber gun from Hamed and that Lamont shot

Hamed with a .38, but Michael said he did not know what happened to the

gun. Michael further told Detective Daugenti that after the robbery, Lamont

and Gil were laughing about shooting Hamed because he was “screaming in

his native tongue.” Michael also knew that Lamont and Gil took “cash, some

cigarettes and coins, a bunch of rolled up coins,” from the Miles store.

      {¶ 31} Detective Daugenti later learned that Michael lived with Angelica

Weaver around the time of the Miles store robbery. Weaver admitted that

Michael had lived with her, and she gave Detective Daugenti consent to

search her home. Detective Daugenti found several items in the home with

UPC codes that matched UPC codes on items purchased with Hamed’s credit

card on August 3, 2001 at the Bi-Rite and K-Mart, including a bottle of Heinz

ketchup, empty bottles of Scope, Folgers coffee, deodorant, Quaker grits,

three packages of frozen meat, razors, and three packages of boxer briefs.

      {¶ 32} Lamont testified that he agreed to testify against his brother,

Michael, in exchange for being charged with involuntary manslaughter for
                                      12

the death of Anwar Hamed.          In exchange, Lamont would not receive

additional prison time for the conviction.

       {¶ 33} Lamont testified that on August 2, 2001, Michael called him and

said that he wanted to rob the Miles store. Lamont said that he did “not

want to rob that one because it’s the next street away from [his] mother’s

house and sometimes she asked [him] to go to that store.” But Lamont later

agreed to rob the Miles store.

       {¶ 34} The following morning, Lamont explained that he went to Angie’s

house, where Michael was staying. Michael gave him the “bowling bag” that

they “kept the guns in.” They had two .38 revolvers. They both had gloves,

wigs, and handcuffs. They drove to the Miles store in Michael’s blue car.

       {¶ 35} They went inside the store and Hamed was standing in the aisle.

They told Hamed to put his hands in the air, while pointing their guns at

him.   Hamed complied with the order at first, but then began yelling in

Arabic and dropped his hands. When Hamed dropped his hands, Lamont

said that he “heard a shot from behind [him].” Hamed fell to the ground and

Lamont said that he saw Michael walk up to Hamed and shoot him again.

       {¶ 36} Lamont testified that he proceeded to remove money from the

cash register. Michael took a gun and keys from Hamed, and he opened the

cash-checking “booth” where they believed they would find more cash. While
                                     13

Michael was in the cash-checking booth, Lamont watched the front door.

They were only able to get $40 from the cash-checking booth. They then left

the store.

        {¶ 37} After the robbery, Lamont stated that he gave his gun back to

Michael because Michael was the one who wiped the guns down and stored

them in the bowling bag. Lamont testified that Michael would collect the

guns “every time after we would do something.”

        {¶ 38} Lamont said he learned that Michael also took Hamed’s credit

card because Michael later used the card to purchase food and other items.

Lamont said he was mad because he had used his own money to purchase

food.

        {¶ 39} Lamont testified that he was arrested for the Greenlite store

robbery in September 2001 at the Cleveland Motel. Lamont explained that

Michael had just dropped him off before the police arrived at his room.

Lamont thought that the police might show up at his room because he heard

police sirens and tires screech and figured that Michael had been arrested.

Lamont said he could not leave because there was a police car in the parking

lot. Lamont hid money and liquor in the ceiling tile of the room. Lamont

also shaved because he was trying to change his appearance so that he could

“make a get away.”
                                                14

           {¶ 40} Lamont identified a .38 Taurus Special that he said Michael “took

from the Citgo gas station,” that the two of them had robbed on August 24,

2001.1 The state played a video for the jury from the robbery at the Citgo

gas station. Lamont identified himself and Michael in the video. They were

both wearing baseball hats. Lamont explained that it was he who walked in

first and pulled a gun, and Michael walked in second, carrying the black

bowling-ball bag. Lamont said he also handcuffed the clerk at the Citgo.

Lamont testified that he pleaded guilty “to the Citgo robbery.”

           {¶ 41} Lamont pleaded guilty to attempted murder, aggravated robbery,

and felonious assault with gun specifications for the robbery at the Miles

store. He had been in prison since February 2002 for these crimes. He had

never been charged with the death of Anwar Hamed, and as of the day he

testified, there were no pending charges against him relating to the death of

Hamed.

           {¶ 42} Dan Galita, M.D., forensic pathologist and deputy coroner,

testified that Anwar Hamed died on March 21, 2007, at 12:27 a.m.                                Dr.

Galita performed an autopsy on Hamed on March 22, about 33 hours after

Hamed had passed away.                 He explained that Hamed had five Fentanyl



        It was Detective Daugenti who testified to the type and brand of gun, as well as the date the
       1


Citgo gas station was robbed.
                                            15

patches on his back that were 100 micrograms per hour patches.2 Hamed

had severe coronary atherosclerosis (hardening of the arteries), and a severe

infection in both lungs, or acute bronchopneumonia. Dr. Galita explained

that he recovered a bullet from Hamed’s left lung.

           {¶ 43} Hamed’s toxicology report showed that he had the following in his

system:        Amitriptyline,   Bupropion,       and       Citalopram,     which     are   all

antidepressants;       Diazepam,       which     is    a    sedative;    Nortriptyline,    an

antidepressant; and Fentanyl, which is a narcotic pain killer.                     Dr. Galita

testified that Hamed had 73 nanograms per milliliter of Fentanyl in his

system, which he described as “very high.” But Dr. Galita explained that the

number was “abnormally artificially high” because Hamed’s body continued

to absorb Fentanyl through the patch for up to 12 hours after his death, but

the drug was not metabolized.

           {¶ 44} Dr. Galita ruled out Fentanyl overdose because there was nothing

in Hamed’s medical records to indicate that he had “wooden chest syndrome.”

  He explained that when people overdose on drugs, their chests become very

stiff and their breathing becomes very shallow, short, and slow. Dr. Galita

said that Hamed’s medical records indicated that when he arrived at the



         Hamed’s physician, Dr. Douglas Vanauken, testified that in the fall of 2006, he began
       2


prescribing Hamed two Fentanyl patches every three days.
                                    16

hospital, he had hyperventilation because his breathing was very deep and

very rapid. This was “typical for an individual who has a lung infection and

doesn’t have enough oxygenation because of the infection in the lungs.”

      {¶ 45} Dr. Galita explained that people who are paralyzed are

“predisposed” to lung infections.   He said that is why patients who have

surgery are immediately mobilized, to prevent lung infections and blood clots.

 He further explained that when a patient has a severe lung infection, oxygen

cannot get to the blood because of the infection in the lungs and then the

organs are deprived of oxygen. The patient dies from lack of oxygen.

      {¶ 46} Dr. Galita testified that because Hamed was paralyzed from the

waist down, he developed a lung infection from being bedridden and

wheelchair ridden for a long period of time. Dr. Galita concluded that “the

cause of death was acute bronchopneumonia due to paraplegia, due to remote

gun shot wound of lumbar spine with spinal cord injury, and the manner of

death was ruled as a homicide while at work.”

      {¶ 47} The bullet that Dr. Galita removed from Hamed was tested in the

police department’s forensic lab. The bullet matched a test-fired bullet from

the Smith & Wesson .38 revolver that was found in the black bowling bag in

the back of Michael Foster’s vehicle on September 13, 2001.
                                     17

      {¶ 48} Michael Foster presented Dr. Robert Bux, M.D., to testify for him.

 Dr. Bux testified that he is a physician, a board certified anatomical clinical

and forensic pathologist, and the elected coroner in El Paso County, Colorado.

 He testified that he coauthored an article on Fentanyl overdoses that was in

the process of being published.

      {¶ 49} Dr. Bux testified that because Hamed’s spinal injury was in the

lower back, causing him to be paralyzed from the waist down, it would not

affect his respiratory system. Dr. Bux explained that “Fentanyl is a very,

very potent narcotic” that is “many times more powerful than morphine.” He

found the level of Fentanyl in Hamed’s blood to be “an extremely high lethal

dose.” He explained that it was the second highest dose he had ever seen.

He explained that even if a person had a high tolerance to Fentanyl, he would

expect the range to be “five to maybe seven, maybe eight, but certainly no

higher than that.”    He opined that Hamed’s cause of death was “due to

massive drug overdose and pneumonia, *** independent of the gunshot

wound.”

                                  Other Acts Evidence

      {¶ 50} In his third assignment of error, Foster contends that the trial

court erred when it permitted the state to elicit other acts evidence regarding

the robbery at the Greenlite store in September 2001. We disagree.
                                    18

     {¶ 51} The standard of review regarding the admissibility of any such

evidence is abuse of discretion.    State v. Sanford, 8th Dist. No. 84478,

2005-Ohio-1009, ¶10, citing State v. Montgomery (1991), 61 Ohio St.3d 410,

575 N.E.2d 167.

     {¶ 52} Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show

action in conformity therewith.    It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”          The listed

exceptions within Evid.R. 404(B) are not exclusive, and other acts evidence

not fitting within the enumerated categories may be admissible so long as the

evidence is admitted for any proper purpose other than proving the

defendant’s propensity to act and conformity with a particular trait of his

character. State v. Smith (1990), 49 Ohio St.3d 137, 140, 551 N.E.2d 190.

     {¶ 53} Moreover, Evid.R. 404(B), by its very terms, “excludes only

extrinsic evidence — ‘evidence of other crimes, wrongs, or acts’ — whose

probative value exclusively depends upon a forbidden inference of criminal

propensity.” U.S. v. Manning (C.A.1, 1996), 79 F.3d 212, 218, cert. denied,

(1996), 519 U.S. 853, 117 S.Ct. 147, 136 L.Ed.2d 93.        Thus, “[e]vidence

intrinsic to the crime for which the defendant is on trial *** is not governed
                                     19

by Rule 404(b).” Id. (discussing the federal rule, which is nearly identical to

the Ohio rule).

      {¶ 54} In State v. Watson (1971), 28 Ohio St.2d 15, 275 N.E.2d 153, the

Ohio Supreme Court reviewed the admissibility of other acts evidence

involving a defendant being seen with a gun.       The court stated that the

“‘general rule of exclusion does not apply where the evidence of another crime

is relevant and tends directly *** to prove *** [the] accused’s guilt of the

crime charged, or to connect him with it, or to prove some particular element

or material fact in such crime; and evidence of other offenses may be received

if relevant for any purpose other than to show mere propensity or disposition

on [an] accused’s part to commit the crime.’” (Emphasis added.) Id. at 21,

quoting 22A Corpus Juris Secundum (1962), Criminal Law, Section 683.

      {¶ 55} The Supreme Court went on to say: “Stated another way, the rule

is that ‘except when it shows merely criminal disposition, *** evidence that is

relevant is not excluded because it reveals the commission of an offense other

than that charged.’” Id. at 21, quoting People v. Peete (1946), 28 Cal.2d 306,

314, 169 P.2d 924.

      {¶ 56} In Watson, the court concluded that the other acts evidence was

admissible when it showed that the defendant had possession of the murder

weapon used in the crime charged. One witness testified that three weeks
                                           20

before the murder in question, the defendant stole the witness’s gun. It was

established that this gun, which was found at the defendant’s feet at the time

of his arrest, was the murder weapon.                Additionally, a second witness

testified that two days before the murder, the defendant had attempted to rob

him with a gun. The witness identified this gun, and it was shown to be the

weapon used in the subsequent murder. Id. at 19.

      {¶ 57} The evidence introduced here regarding the Greenlite robbery

was not introduced to provide “a forbidden inference of criminal propensity.”

That is, it was not introduced to prove that Foster was a bad person, or to

establish that because he committed the Greenlite store robbery, he must

have committed the Miles store robbery.               The evidence of the Greenlite

robbery was offered to directly connect Foster to the Miles store robbery and

shooting of Hamed — and to prove Foster’s guilt of the crimes charged,

namely, aggravated robbery and murder. Specifically, the .38 revolver found

in the back seat of Foster’s car when he was apprehended after the Greenlite

robbery turned out to be the exact gun that was used to shoot Hamed and,

thus, was direct evidence of the crimes for which Foster was being tried.

      {¶ 58} Accordingly, we overrule Foster’s third assignment of error.

                            Jury Instruction on Accomplice Testimony
                                               21

         {¶ 59} In his fourth assignment of error, Foster argues that the trial court committed

reversible error when it failed to give the jury a cautionary instruction regarding Lamont’s

testimony as an accomplice under R.C. 2923.03.        We disagree.

         {¶ 60} Foster concedes he did not object to this evidence and, thus, he argues that it

amounted to plain error.     Under Crim.R. 52(B), plain errors affecting substantial rights may

be noticed by an appellate court even though they were not brought to the attention of the trial

court.    Plain error does not exist unless the appellant establishes that the outcome of the trial

clearly would have been different but for the trial court’s allegedly improper actions. State v.

Waddell, 75 Ohio St.3d 163, 166, 1996-Ohio-100, 661 N.E.2d 1043.             Under the plain error

doctrine, a trial court’s decision will be reversed only in exceptional circumstances to prevent

a miscarriage of justice.   State v. Cooperrider (1983), 4 Ohio St.3d 226, 227, 448 N.E.2d 452.

         {¶ 61} R.C. 2923.03(D) provides: “If an alleged accomplice of the defendant testifies

against the defendant in a case in which the defendant is charged with complicity in the

commission of or an attempt to commit an offense, an attempt to commit an offense, or an

offense, the court, when it charges the jury, shall state substantially the following:

         {¶ 62} “The testimony of an accomplice does not become inadmissible because of his

complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a

witness may affect his credibility and make his testimony subject to grave suspicion, and

require that it be weighed with great caution.
                                                22

          {¶ 63} “It is for you, as jurors, in the light of all the facts presented to you from the

witness stand, to evaluate such testimony and to determine its quality and worth or its lack of

quality and worth.”

          {¶ 64} This court has previously found the failure to give the accomplice instruction to

be harmless error where defense counsel failed to request the instruction in the trial court and

significant other evidence introduced at trial supported the defendant’s conviction.           See

Cleveland Hts. v. Riley (May 20, 1999), 8th Dist. No. 74101; State v. Cardwell (Sept. 2,

1999), 8th Dist. Nos. 74496, 74497, and 74498.

          {¶ 65} We find that to be the case here.    Even without Lamont’s testimony, there was

overwhelming evidence to convict Michael.            Months after the Miles store robbery, police

found several items in Michael’s house that were purchased with Hamed’s credit card on the

day he was shot.       Hamed told police that his shooter had taken his credit card out of his

wallet.    Police obtained sales receipts from two stores where Hamed’s credit card was used

that contained UPC codes of the items purchased; many of these exact items were found in

Michael’s house.      UPC codes on products are similar to fingerprints on people.         Further,

when police apprehended Michael after the Greenlite robbery, two guns were found in the

back of his car — one of which was later determined to be the gun that was used to shoot

Hamed during the Miles store robbery.

          {¶ 66} Accordingly, Foster’s fourth assignment of error is overruled.
                                              23

                                    Ineffective Assistance of Counsel

       {¶ 67} In his fifth assignment of error, Foster maintains that his trial counsel was

ineffective for failing to request the accomplice jury instruction.   We disagree.

       {¶ 68} In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674, the Supreme Court of the United States set forth the

two-pronged test for ineffective assistance of counsel. It requires that the

defendant show (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced the defense. The first prong “requires showing that

counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

The second prong “requires showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is unreliable.” Id.

       {¶ 69} Again, we find that based on the second prong, even if Foster’s

counsel should have requested the jury instruction, any error did not

prejudice Foster’s case since there was overwhelming evidence to convict him.

                           Sufficiency and Manifest Weight of the Evidence

       {¶ 70} In his first assignment of error, Foster argues that the evidence

presented at trial was not sufficient to convict him. But all of the arguments

that Foster raises go to manifest weight of the evidence, his second

assignment of error, not sufficiency.
                                     24

      {¶ 71} In reviewing a claim challenging the manifest weight of the

evidence, “[t]he question to be answered is whether there is substantial

evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt. In conducting this review, we

must examine the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether

the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.”        (Internal

quotes and citations omitted.)      State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶81.

      {¶ 72} Foster argues that the state’s “star witness” — his brother,

Lamont — was “definitely an incredible witness” because he was mentally

ill, and had motive to testify against Michael because the state had offered

him a deal where he could plead guilty to involuntary manslaughter for

Hamed’s death, but would not receive any more prison time for it. First,

Lamont may have been mentally ill, but the court found Lamont competent to

testify.   And as for Lamont having motive to testify against Michael, we

agree that is true. The jury, however, was fully aware of the plea deal that

Lamont had received.
                                     25

      {¶ 73} Further, as we previously stated, Lamont may have been a “star

witness,” but there was plenty of other evidence presented to the jury to find

Michael guilty of the crimes, even without Lamont’s testimony.

      {¶ 74} Michael also argues that the jury lost its way when it believed the

state’s witness— the deputy coroner —        over his expert on the cause of

Hamed’s death. We cannot agree. Both doctors were highly qualified and

presented differing theories on the cause of death. We cannot say that the

jury lost its way when it believed Dr. Galita over Dr. Bux.

      {¶ 75} Finally, Michael maintains that “attempting to link” him to the

shooting was inconsistent with the evidence because Hamed had identified

James Sheron as the person who shot him. While true, the jury also heard

overwhelming evidence that it was Michael who shot Hamed. Michael put

himself at the scene, although he tried to blame his two brothers — one of

whom was at work.      It was Michael who purchased items with Hamed’s

credit card.   And it was Michael who was found with the gun that shot

Hamed.

      {¶ 76} Accordingly, after reviewing the entire record, we conclude that

this case is not the “exceptional case in which the evidence weighs heavily

against the conviction.”    State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541.
                                              26

       {¶ 77} Foster’s first and second assignments of error are overruled.

       Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

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

court to carry this judgment into execution.         The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
SEAN C. GALLAGHER, J., CONCUR
