[Cite as State v. Lee, 2017-Ohio-1449.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104682



                                          STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                          RAMEL J. LEE
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-604198-A

        BEFORE:          Blackmon, P.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED:                     April 20, 2017
ATTORNEY FOR APPELLANT

P. Andrew Baker
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA A. BLACKMON, P.J.:

       {¶1} Appellant Ramel J. Lee (“Lee”) appeals his convictions for murder,

attempted murder, felonious assault, and discharging a firearm near prohibited premises.

He assigns the following errors for our review:

       I.     The trial court erred when it denied [Lee’s] motion for severance.

       II.    The trial court erred when it improperly removed a juror.

       III.    The trial court erred when it refused to give a self-defense instruction.

       IV. The trial court erred in convicting [Lee] when the conviction was
       against the manifest weight of the evidence.

       V. The trial court erred in convicting [Lee] when there was prosecutorial
       misconduct.

       VI. The trial court erred when it improperly sustained the prosecutor’s
       objection to defense counsel’s closing argument.

       VII. The trial court erred when it violated [Lee’s] right to be present at all
       critical stages of the trial when it answered jury questions.

       {¶2} Having reviewed the record and the pertinent law, we affirm the trial court’s

decision.

       {¶3} On March 16, 2016, Lee was indicted in a 13-count indictment in connection

with two shootings. Counts 1-7 pertained to the February 21, 2012 armed attack on

Charles Elder (“Elder”) and T.T. (a minor), and resulted in the death of T.T.1 As is

relevant herein, Counts 8-13 pertained to the April 15, 2013 shooting of Elder and fatal


       1
        Lee was ultimately acquitted of all of the charges pertaining to the February 21, 2012
shooting.
shooting of Regina Neal (“Neal”).      In connection with this shooting, Lee was charged

with aggravated murder, murder, attempted murder, three counts of felonious assault, and

discharging a firearm near prohibited premises, all with one-year and three-year firearm

specifications and criminal gang activity specifications.   Lee pled not guilty and filed a

motion to sever the charges pertaining to the February 21, 2012 shooting from the charges

pertaining to the April 15, 2013 shooting. The trial court denied the motion and the

matter proceeded to trial on May 16, 2016.       Lee waived his right to a jury trial with

respect to the gang activity specifications, and the remaining charges were tried to a jury.

       {¶4} The evidence demonstrated that Lee is a member of the J-Park gang that

operates in the area of East 131st Street and Harvard Avenue in Cleveland.           A rival

gang, ATM Jack Boyz, operates in the area of East 131st Street and Caine Avenue in

Cleveland near Garfield Heights.      The evidence also established that it is generally

considered unsafe for members of a gang to go into the territory of a rival gang because a

fight or shootout could result.

       {¶5} Elder testified regarding the events of both shootings. Elder denied being a

member of any gang, but he stated that he was friends with all of the ATM Jack Boyz

gang members, including T.T. With regard to the February 21, 2012 shooting, Elder

testified that after T.T. had two separate altercations with the girlfriend of a J-Park gang

member, Elder and T.T. were fired on while walking in the area of East 131st Street and

South Parkway. T.T. was shot in the back of the head and died. Elder fled and was not
hit.   Elder spoke with Garfield Heights police officers after the shooting but he indicated

that he did not see his assailants.

        {¶6} With regard to the April 15, 2013 shooting, Elder testified that immediately

prior to this shooting, he and Neal were walking near Neal’s home on East 134th Street

near Caine Avenue when they were attacked by armed assailants.        Neal was shot in the

head and killed, and Elder was struck in the leg and survived. Elder observed one of his

assailants about five houses away on the west side of the street.    He told police that he

believed that this man was Jamall Lewis (“Lewis”), a J-Park member who had been in a

previous altercation with Elder’s brother.     Elder denied having a weapon during this

attack, and stated that to the best of his knowledge, no one returned fire during this

shooting.

        {¶7} Cleveland Police Det. James Raynard (“Det. Raynard”) located and

photographed a number of spent shell casings near the front and side yards of a home on

East 134th Street. According to Cleveland Police Officer Vincent Walker, six casings

were from a Federal .40-caliber Smith & Wesson weapon, five nearby casings were from

a CCI .45-caliber semiautomatic weapon, and another four Blazer 9 mm Luger casings

were from a Blazer 9 mm weapon were found immediately across the street.

        {¶8} The police subsequently obtained information about the April 15, 2013

shooting from S.L. who testified as part of a plea agreement with the state.     Under the

terms of the plea, various charges against S.L., including aggravated robbery with firearm

and gang specifications, and other offenses, would be tried as juvenile offenses. S.L.
testified that he is a member of the J-Park gang, and that during the afternoon of April 15,

2013, ATM Jack Boyz gang member “Mane” shot at him.                 S.L. told other J-Park

members Lewis, Shropshire, and Lee that “we should all do something about it.”

       {¶9} According to S.L., Lee subsequently drove the group to the area where S.L.

had been fired upon.    Lewis was armed with a .40 caliber semiautomatic weapon and

Shropshire had a .45 caliber semiautomatic weapon.      The group circled the area of East

134 and Caine Avenue several times looking for Mane.        They spotted a large group of

people, and assumed that they were all ATM Jack Boyz, so they decided to shoot at them.

 Lee parked the car about a block away and the J-Park members quickly discussed that

Lewis and Shropshire would shoot at the group then run back to the car. Lewis and

Shropshire subsequently exited the car then returned a short time later, and Lee drove

everyone home.     Later, the group learned from social media posts the names of the

individuals who had been shot.

       {¶10} S.L. admitted that when he spoke with police about the shooting, he was

unsure of the date. He also admitted that after the shooting, he had been in possession of

the .45 caliber weapon, and that he and other J-Park gang members blocked Lee on social

media because they believed that Lee was a police informant.

       {¶11} After obtaining S.L.’s proffer of evidence, the Garfield Heights Police

arrested Lee, and detectives from the Garfield Heights Police Department and the

Cleveland Police Department spoke with him. According to the testimony of Cleveland

Police Detectives Colin Ginley (“Det. Ginley”) and Tim Entenok (“Det. Entenok”), and
Garfield Heights Police Detective Carl Biegacki (“Det. Biegacki”), Lee stated that after

the J-Park gang learned that S.L. had been shot at, Lee drove S.L., Shropshire, and Lewis

to the area of East 131st Street and Caine Avenue.    Lee stated that before they got in the

car, he questioned the group as to “why are we going out and doing this for [S.L.]?”

The group circled ATM Jack Boyz’s territory and parked about a block away from a

group of people. Lewis and Shropshire got out of the car, and Lee heard shots being

fired.   The men then ran back to the car and Lee drove the group to Shropshire’s house.

Lee told the officers that Lewis told him that he was going to someone’s house, and Lee

believed that Lewis, and Shropshire were simply going to talk to the ATM Jack Boyz

members.

         {¶12} The defense presented the testimony of Det. Entenok.          Det. Entenok

testified that in Lee’s statements to the detectives, Lee consistently stated that when he

arrived at Shropshire’s house in the afternoon of April 15, 2013, Lewis and S.L. were

already there, that he did not know about S.L.’s desire to retaliate against the ATM Jack

Boyz gang, and that he did not know what Lewis and Shropshire had planned to do after

they exited the car.   Det. Entenok also acknowledged that he told Lee that he believed

that “someone may have shot at or shot back at Lewis and Shropshire.”

         {¶13} Lee was subsequently acquitted of all of the charges related to the February

21, 2012 shooting, but was convicted of the April 15, 2013 murder of Neal and the

attempted murder of Elder, three counts of felonious assault on Neal and Elder, and all of

the one-year and three-year firearm specifications for these offenses.      The trial court
dismissed the firearm specifications on the charge of discharging a firearm near

prohibited premises, and Lee was convicted of a first-degree misdemeanor level offense

in connection with this charge. Lee also pled no contest to the criminal gang activity

specifications and was convicted of them. The trial court merged the offenses pertaining

to each victim and sentenced Lee to nine years on all of the specifications, and a total of

fifteen years to life imprisonment on the remaining charges.

                                         1. Severance

         {¶14} In the first assigned error, Lee asserts that the trial court erred in denying his

motion to sever the charges pertaining to the February 21, 2012 shooting death of T.T.,

from the charges pertaining to the April 15, 2013 shooting of Regina Neal and Charles

Elder.

         {¶15} We review the trial court’s ruling on joinder for an abuse of discretion.

State    v.   Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 58;

State v. Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624, ¶ 42. The defendant

“‘bears the burden of proving prejudice and of proving that the trial court abused its

discretion in denying severance.’” Dean at ¶ 60, quoting State v. Brinkley, 105 Ohio

St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29.

         {¶16} Under Crim.R. 8(A), two or more offenses may be charged together if the

offenses “are of the same or similar character, * * * or are based on two or more acts or

transactions connected together or constituting parts of a common scheme or plan, or are

part of a course of criminal conduct.”          However, if it appears that a defendant is
prejudiced by a joinder of offenses, the trial court may grant a severance under Crim.R.

14.

        {¶17} If a defendant makes a case for prejudicial joinder, “[t]he state may rebut a

defendant’s claim * * * in two ways.”    Dean at ¶ 61.

        The state may rebut a defendant’s claim of prejudicial joinder in two ways.
        First, if in separate trials the state could introduce evidence of the joined
        offenses as “other acts” under Evid.R. 404(B), a defendant cannot claim
        prejudice from the joinder. [State v.] Lott, [51 Ohio St.3d 160, 555 N.E.2d
        293 (1990)] at 163. Second, the state can refute prejudice by showing that
        “evidence of each crime joined at trial is simple and direct.” Id.

Id. at 60-61.

        {¶18} In Dean, the Ohio Supreme Court concluded that the trial court did not

abuse its discretion in denying the defendant’s motion to sever charges arising from

three   separate   incidents   that   occurred   from    April   10,   2014   to April 14,

2014. In reaching this conclusion, the court stated:

        The different offenses were charged together because they were part of a
        common scheme or plan and occurred over a short period of time. Kaboos
        provided key testimony as to each of the offenses, and other witnesses
        testified regarding more than one offense. Thus, the facts indicate that
        joinder was proper because the offenses were part of a continuing course of
        criminal conduct. See State v. Hamblin, 37 Ohio St.3d 153, 158, 524
        N.E.2d 476 (1988).

        * * *[E]ven of these two counts had been tried separately from the other
        counts, the state would have had to present evidence of other acts—the
        attempted-murder offenses—in order to prove the specification. See State
        v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 51.

        In addition, the evidence of each crime was simple and direct. The state’s
        first witnesses testified about the attempted murders and the robbery at the
        Mini Mart. The next series of witnesses testified about the drive-by
        shooting on Dibert Avenue. The rest of the testimony focused on Arnold’s
       murder. It is highly unlikely that the jury would have confused the murder
       evidence with the other offenses. See State v. Johnson, 88 Ohio St.3d 95,
       110, 2000-Ohio-276, 723 N.E.2d 1054 (2000).

Id. at 62-64.

       {¶19} In this matter, the two shootings occurred over a year apart.   However, the

evidence presented demonstrated that both shootings were the result of a common scheme

or plan as each involved ongoing fighting between ATM Jack Boyz and J-Park gang

members. In addition, Elder was a witness in both cases, and in both cases, he was shot

at and his companion was killed.     The evidence as to each shooting was simple and

direct, and it is extremely unlikely that the jury would confuse the evidence from the

separate offenses.   Additionally, the court instructed the jury that “each of the counts

that you are considering * * * are separate matters.    They all have their own separate

elements that the state has to prove beyond a reasonable doubt.”      Moreover, there is

nothing in the record to suggest that the jury confused the evidence as to the various

counts or was improperly influenced by any possible cumulative effect of joinder because

the jury considered each offense separately and acquitted Lee of all of the offenses

pertaining to the February 21, 2012 shooting.       Accord State v. Nitsche, 8th Dist.

Cuyahoga No. 103174, 2016-Ohio-3170, ¶ 95 (defendant was unable to show that he was

prejudiced by the trial court’s denial of motion to sever where he was acquitted of one

charge and convicted of other offenses); citing State v. Banks, 2015-Ohio-5413, 56

N.E.3d 289, ¶ 66-68 (8th Dist.) (defendant was unable to show that he was prejudiced by
the trial court’s denial of motion to sever where he was acquitted of some charges and

convicted of a lesser offense in others).

       {¶20} In accordance with the foregoing, we cannot say the trial court abused its

discretion in denying Lee’s motion to sever counts in the indictment.

       {¶21}   The first assigned error is without merit.

                            2. Removal of Prospective Juror

       {¶22} Lee next argues that the trial court erred in removing a prospective juror

from the panel after learning in voir dire that she had been convicted of a theft offense in

1994 and that the conviction had not been expunged.

       {¶23} “‘[T]he determination of whether a prospective juror should be disqualified

for cause is a discretionary function of the trial court.     Such determination will not be

reversed on appeal absent an abuse of discretion.’”         State v. Madrigal, 87 Ohio St.3d

378, 393, 2000-Ohio-448, 721 N.E.2d 52, quoting Berk v. Matthews, 53 Ohio St.3d 161,

559 N.E.2d 1301 (1990), syllabus.

       {¶24} Under R.C. 2961.01(A), a person who either pleads guilty to or is found

guilty of a felony is incompetent to be a juror unless:

       (1) the plea, verdict, or finding is reversed or annulled, is incompetent to be
       an elector or juror or to hold an office of honor, trust, or profit [or]

       (2) the person is granted parole, judicial release, or a conditional pardon
       or is released under a non-jail community control sanction or a post-release
       control sanction, [then] the person is competent to be an elector during the
       period of community control, parole, post-release control, or release or until
       the conditions of the pardon have been performed or have transpired and is
       competent to be an elector thereafter following final discharge. * * * .
       {¶25} In addition, under R.C. 2967.16(C)(1), “the following prisoners or person

shall be restored to the rights and privileges forfeited by a conviction:

       (a) A prisoner who has served the entire prison term that comprises or is
       part of the prisoner’s sentence and has not been placed under any
       post-release control sanctions;

       (b) A prisoner who has been granted a final release by the adult parole
       authority pursuant to division (A) or (B) of this section;

       (c) A person who has completed the period of a community control sanction
       or combination of community control sanctions, as defined in section
       2929.01 of the Revised Code, that was imposed by the sentencing court.

       {¶26} However, as the court noted in State v. Harrison, 2015-Ohio-1419, 31

N.E.3d 220 (3d Dist.), “[e]ven if we assume that the trial court abused its discretion by

granting the State’s for-cause challenge to [the juror, the defendant] has not shown how

this prejudiced him.” Id. at ¶ 34, citing State v. Coonrod, 4th Dist. Pickaway No.

11CA3, 2012-Ohio-6302.

       {¶27} The Harrison court stated:

       Harrison did not explain how granting the State’s for-cause challenge to

       Juror No. 99 affected the outcome of the trial.       And at any rate, “[a]ny

       argument that Juror Number [99] would have voted to acquit is

       speculative.” Id. at ¶ 31.    Therefore, even assuming the trial court abused

       its discretion by granting the   State’s for-cause challenge, Harrison failed

       to demonstrate how the error is anything other than harmless error. See

       [Coonrod], citing State v. Brown, 2d Dist. Montgomery No. 24541,

       2012-Ohio-1848, ¶ 53.     See also State v. Sanders, 92 Ohio St.3d 245, 249,
       2001 Ohio 189, 750 N.E.2d 90 (2001) (“[A]n erroneous excusal for cause,

       on grounds other than the venireman’s views on capital punishment, is not

       cognizable error, since a party has no right to have any particular person sit

       on the jury.”).

Id.

       {¶28} Similarly, in this matter, we conclude that Lee failed to demonstrate that he

was prejudiced by the trial court’s ruling. He has failed to demonstrate that this ruling is

anything other than harmless error.

       {¶29} In accordance with the foregoing, we conclude that the second assigned

error is without merit.

                                      3. Self-Defense

       {¶30} In the first portion of this assigned error, Lee argues that the trial court erred

in failing to instruct the jury regarding self-defense.   He asserts that because the crime

scene from the April 15, 2013 shooting contained shell casings from three firearms, it “is

at least possible that [Lee’s] alleged accomplices were not the initial aggressors, and if

they acted in self-defense, then [Lee] could not be guilty of complicity.”      In the second

portion of this assigned error, Lee argues that R.C. 2901.05 unconstitutionally places the

burden of proving self-defense upon a defendant.

                          a. Denial of Self-Defense Instruction
       {¶31} We review the trial court’s failure to provide a self-defense instruction for

abuse of discretion. State v. Sekic, 8th Dist. Cuyahoga No. 95633, 2011-Ohio-3978, ¶ 9,

citing State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72.

       {¶32} In order to be entitled to a jury instruction on self-defense, a defendant must

meet the burden of going forward with evidence of a nature and quality sufficient to raise

an affirmative defense.       State v. Stoutemire, 8th Dist. Cuyahoga No. 94802,

2011-Ohio-473, ¶ 38, citing State v. Cross, 58 Ohio St.2d 482, 391 N.E.2d 319 (1979).

See also State v. Abner, 55 Ohio St.2d 251, 253, 379 N.E.2d 228 (1978); State v.

Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio-1821, ¶ 27. “If the evidence

generates only a mere speculation or possible doubt, such evidence is insufficient to raise

the affirmative defense, and submission of the issue to the jury will be unwarranted.”

Sekic at ¶10, quoting State v. Melchior, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978).

The trial court, as a matter of law, cannot give a jury instruction on an affirmative defense

if a defendant fails to meet his or her burden of going forward.   Stoutemire.

       {¶33} The elements of self-defense through the use of deadly force include that the

defendant: (1) was not at fault in creating the situation giving rise to the affray; (2) had a

bonafide belief that they were in imminent danger of death or great bodily harm and their

only means of escape from such danger was the use of such force; and (3) did not violate

any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d

755 (1979), paragraph two of the syllabus.
      {¶34} In this matter, we note that Lee told the police that immediately after

learning that S.L. had been shot at, he questioned “why are we going out and doing this

for [S.L.?]”   He then drove other individuals to Caine Avenue, and Lewis and

Shropshire got out of the car.   Lee maintained that he heard gun shots and later drove

away after the men returned to the car.   Lee also presented testimony from Det. Entenok

who admitted that he believed that “someone may have shot at or shot back at Lewis and

Shropshire.”   However, viewing the totality of the evidence, we conclude that there is

insufficient evidence of a nature and quality sufficient to meet the burden of production

on the affirmative defense of self-defense.   There was no evidence to show that Lee and

the J-Park group were not at fault in creating the situation, as they willingly went to a

hostile situation immediately after S.L. claimed to have been shot at by the rival ATM

Jack Boyz gang member. Accord Sekic, in which this court stated:

      Even if we believe all of Sekic’s testimony over that of the Fords, especially
      the part where Kris Ford throws the first punch, Sekic created the situation
      and failed to avoid the danger that led to the physical altercation.
      According to Sekic’s trial testimony, he was afraid the Fords would try to
      harm him at the convenience store. Also according to Sekic, the
      “conversation” at the apartment turned to fisticuffs almost immediately.
      Having willingly advanced toward a volatile situation, where he already
      thought the others would harm him, he cannot rely on the affirmative
      defense of self-defense when the others actually do that which he feared.
      In most circumstances, a defendant may not claim self-defense if he has a
      reasonable means of retreat from the confrontation. Melchior, 56 Ohio St.
      2d at 20.

Id. at ¶ 15; accord State v. Tabasso, 8th Dist. Cuyahoga No. 98248, 2012-Ohio-5747, ¶

22.
       {¶35} Further, there was no evidence to show that Lee, Lewis, or Shropshire

believed that they were in imminent danger of great bodily harm that mandated the use of

force to escape danger.     Moreover, Lee’s claim that it “is at least possible that [Lee’s]

alleged accomplices were not the initial aggressors, and if they acted in self-defense, then

[Lee] could not be guilty of complicity,” together with Det. Entenok’s testimony that he

believed that “someone may have shot at or shot back at Lewis, and Shropshire,”

generates only a mere speculation regarding the        possibility of self-defense. Melchior

at 20 (“If the evidence generates only a mere speculation or possible doubt, such evidence

is insufficient to raise the affirmative defense, and submission of the issue to the jury will

be unwarranted.”)

       {¶36} In accordance with the foregoing, we cannot conclude that the trial court

erred in failing to instruct the jury on the issue of self-defense.

       {¶37} This portion of the assigned error is without merit.

                            b. Burden of Proving Self-Defense

       {¶38} Lee next asserts that R.C. 2901.05, which places the burden on the

defendant to prove self-defense, is unconstitutional. Relying upon Dist. of Columbia v.

Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), Lee maintains that the

Second Amendment establishes a presumptive right of self-defense, requiring the state to

prove lack of self-defense.       Lee notes that this court has previously rejected this

argument but he seeks to preserve the assigned error for future review.
       {¶39} In State v. Simmons, 8th Dist. Cuyahoga No. 104080, 2017-Ohio-183, this

court noted that R.C. 2901.05(A), which places the burden of self-defense upon the

defendant, withstood constitutional scrutiny in Martin v. Ohio, 480 U.S. 228, 234-236,

107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). The Simmons court additionally noted that

although Heller established that the Second Amendment protects an individual’s right to

possess a firearm in the home for the purpose of self-defense, “‘nothing in Heller purports

to alter the way the states have defined self-defense.’” Simmons at ¶ 23, quoting State v.

Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 47 (8th Dist.).

Additionally, the Simmons court noted that the Eighth District rejected similar Second

Amendment-based challenges to R.C. 2901.05(A) in State v. Porter, 2016-Ohio-1115, 61

N.E.3d 589, ¶ 45 (8th Dist.); Betliskey, 2015-Ohio-1821 at ¶ 39; and State v. Hudson, 8th

Dist. Cuyahoga No. 96986, 2012-Ohio-1345, ¶ 23.

       {¶40} In accordance with the foregoing, this portion of the third assigned error is

without merit.

       {¶41} The third assigned error is without merit.

                              4. Weight of the Evidence

       {¶42} Lee maintains that the conclusion that he acted in concert with the principal

offenders of the April 15, 2013 shooting is against the manifest weight of the evidence.

       {¶43} In State v. Thompkins, 78 Ohio St.3d 380, 387, N.E.2d 541 (1997), the court

explained a challenge to the manifest weight of the evidence as follows:
Weight of the evidence concerns “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather

than the other. It indicates clearly to the jury that the party having the

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

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

sustains the issue which is to be established before them. Weight is not a

question of mathematics, but depends on its effect in inducing belief.”

(Emphasis added.) Black’s [Law Dictionary (6th Ed.1990) 1594].

When a court of appeals reverses a judgment of a trial court on the basis

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

as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of the

conflicting testimony. [Quoting Tibbs v. Florida, 457 U.S. 31, 45, 102 S.

Ct. 2211, 2220, 72 L.Ed.2d 652 (1982)]. See also State v. Martin (1983),

20 Ohio App.3d 172, 175, * * *, 485 N.E.2d 717, 720-721 (“The court,

reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, 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. The discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.”)
Id.

      {¶44} In this matter, the state presented Elder’s testimony that he recognized

Lewis as one of the gunmen in the April 15, 2013 shooting. S.L. testified that earlier

that afternoon, ATM Jack Boyz gang member “Mane” shot at him, and he told other

J-Park members, Lewis, Shropshire, and Lee to “do something about it.”                 Lee

subsequently drove the group to the ATM Jack Boyz territory. According to S.L., Lewis

was armed with a .40 caliber semiautomatic weapon and Shropshire had a .45 caliber

semiautomatic weapon.     The group circled the area, and then decided to shoot at a group

of people believed to be ATM Jack Boyz gang members.          Lee parked the car about a

block away from this group. According to S.L., the J-Park members quickly discussed

that Lewis and Shropshire would shoot at them and run back to the car. Lewis and

Shropshire subsequently exited the car then returned a short time later, and Lee drove

everyone home.    Lee’s statements indicated that before they got in the car, he questioned

the group as to “why are we going out and doing this for [S.L.]?”    Lee admitted that he

drove them to the ATM Jack Boyz territory. Lewis and Shropshire exited the car, shots

rang out, and Lee quickly drove them all away.

      {¶45}    From all of the foregoing, we cannot say that the conviction is against the

manifest weight of the evidence.         In weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses and resolving conflicts in the

evidence, we cannot say that the jury clearly lost its way and created a manifest

miscarriage of justice in convicting Lee in this matter. Rather, the manifest weight of the
evidence demonstrated that Lee aided and abetted in the commission of the offenses with

his other gang members, while sharing the criminal intent of his principals, Lewis and

Shropshire.

       {¶46} This assigned error is without merit.

                               5. Prosecutorial Misconduct

       {¶47} Lee next asserts that the prosecuting attorney made improper statements

during his closing argument, including asserting that Lee had no reason to go to the scene

if “one is a J-Park member,”     that Lee has a “death taxi,” that the area had “ATM bodies

that have been killed,” and that it didn’t matter if the victim fired first.

       {¶48} Prosecutors are entitled to latitude as to what the evidence has shown and

what inferences can be drawn from the evidence.           State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 213.             The test for prosecutorial misconduct is

whether remarks were improper and, if so, whether they prejudicially affected substantial

rights of the accused. State v. Smith, 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000),

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

analysis “is the fairness of the trial, not the culpability of the prosecutor.”   Id., citing

Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

       {¶49} Beginning with the prosecuting attorney’s statement that Lee had no reason

to go to the scene if “one is a J-Park member,” we note that while such statement,

standing alone, would not be a proper argument, in this particular instance, it was a fair

comment on the evidence.       Lee’s own statement to police indicated that it would not be
safe for J-Park members to go to ATM Jack Boyz territory, and a J-Park member would

not go there unless he was looking for trouble. In addition, the testimony of S.L.

demonstrated that if a J-Park member goes into ATM Jack Boyz territory, he would be

there “to fight or something like that.”      Accordingly, we find no prejudicial error in

connection with this portion of the argument.

        {¶50} As to the comment that Lee has a “death taxi,” this comment, though

extreme, was a reasonable inference from the evidence presented and did not deprive Lee

of a fair trial.

        {¶51} The prosecuting attorney’s argument that a particular area “is littered with

ATM bodies that have been killed,” was likewise not prejudicial as this statement is a fair

comment upon the “ATM Dead Zone,” and “R.I.P.” graffiti depicted in the state’s

exhibits from the area immediately near the April 15, 2013 shooting, and from the

evidence demonstrating that there is a high crime rate in the area coinciding with gang

territories.   The comment was not prejudicially erroneous. Accord State v. Jefferson,

2d Dist. Montgomery No. 15828, 1997 Ohio App. LEXIS 887 (Mar. 14, 1997) (“The

record does not demonstrate that the prosecutor exceeded the legitimate use of this

information or employed the religious or gang affiliations of the witnesses in such a way

as to inflame the jury against them.”).

        {¶52} Finally, as to the prosecuting attorney’s argument that it didn’t matter if the

victim fired first, this was a correct remark based upon the court’s previous ruling

prohibiting an instruction on self-defense.
       {¶53} The fifth assigned error is without merit.



                     6. Objection to Defense’s Closing Argument

       {¶54} In this assigned error, Lee asserts that the trial court erroneously prevented

him from presenting argument concerning his reasonable theory of self-defense by

sustaining the state’s objection to the following portion of the defense’s closing

argument:

       [The State] may say that if the J-Park folks [who were with Lee] went on
       the street that night, that whatever happens at that point, is the J-Park
       member’s fault.

       But if somebody returned fire at the J-Park folks or somebody initiated fire
       at the J-Park folks and one of those bullets went astray and struck Ms. Neal,
       you cannot say that there was murder in the minds of the J-Park people[.]

       {¶55} Lee additionally complains that the trial court compounded the error      when

it gave the jury the following curative instruction:

       [A]ny suggestion that self-defense would be an available defense is wrong

       and improper.     So you are not to consider whether someone in some

       speculative account of what may have occurred, that self-defense would

       have been a possible [defense].

       {¶56} “‘[B]oth the prosecution and the defense have wide latitude in summation as

to what the evidence has shown and what reasonable inferences may be drawn

therefrom.’” State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), quoting

State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). A trial court may limit
arguments that are unduly time consuming, “stray unduly from the mark, or otherwise

impede the fair and orderly conduct [of the trial],” but denying an accused the right to

make final arguments on his theory of the defense denies him the right to assistance of

counsel.   State v. Tatum, 8th Dist. Cuyahoga No. 99818, 2014-Ohio-386, ¶ 16, citing

Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). This

court reviews a trial judge’s limitations on closing arguments for an abuse of discretion.

State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 44 (4th Dist.).

       {¶57}   In this matter, the trial court informed defense counsel that a self-defense

instruction would not be given because “[t]here’s no evidence of self-defense here.

There’s not.   It’s not there.   It’s all speculation.”   Later, defense counsel made the

argument to the jury that if someone from the J-Park group returned fire, “you cannot say

that there was murder in the minds[.]”    Following our review of the record, we conclude

that the trial court properly restricted defense counsel’s argument in this instance.

Therefore, we conclude that the trial court correctly barred the defense from improperly

speculating on hypothetical evidence that was not a proper theory of the defense.       We

find no abuse of discretion.

       {¶58} As to the curative instruction, we note that curative instructions have been

recognized as an effective means of remedying errors or irregularities that occur during

trial. State v. Ghaster, 8th Dist. Cuyahoga No. 91576, 2009-Ohio-2134, ¶ 20, citing

State v. Zuern, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). In this matter, the court’s

curative instruction properly notified the jury, consistently with the court’s prior ruling,
that self-defense was not an issue for their consideration after defense counsel improperly

argued that if J-Park members returned fire, “you cannot say that there was murder in the

minds of the J-Park members.” We find no error.

          {¶59} The sixth assigned error is without merit.

                    7. Lee’s Absence During Response to Jury Question

          {¶60} Lee next asserts that the trial court committed prejudicial error by

responding to a jury question in his absence.

          {¶61} A defendant has a fundamental right to be present at all critical stages of his

criminal trial. State v. Hill, 73 Ohio St.3d 433, 444, 653 N.E.2d 271 (1995), citing

Crim.R. 43(A) and the Ohio Constitution, Article I, Section 10. However, in State v.

Campbell, 90 Ohio St.3d 320, 346, 738 N.E.2d 1178 (2000), the court found no error

where a capital murder defendant was absent from an in-chambers discussion between the

court and counsel regarding the trial court’s response to a jury question.             The court

stated:

          Campbell had no right to be present at the legal discussion of how the
          question should be answered. Nor did he have a right to be present when
          the judge sent the note to the jury room. Although the oral delivery of jury
          instructions in open court is a critical stage of trial, the trial court here did
          not instruct the jury in open court; instead, he sent a note. A defendant
          benefits from his presence, and may be harmed by his absence, when
          instructions are given in open court. But these potential benefits and
          harms do not exist when the judge merely sends a note to the jury room. We
          therefore hold that the sending of the note was not a critical stage of the
          trial. (Citations omitted.)
Id. at 346.     See also State v. Ferguson, 8th Dist. Cuyahoga No. 86439, 2006-Ohio-799, ¶

56 (concluding that “the discussion regarding the jury question was not a critical stage of

the trial.”).

        {¶62} Later, in State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d

1263, the Ohio Supreme Court found no prejudicial error where the trial court responded

to a jury question in open court after defense counsel waived defendant’s presence. Id.

at ¶ 148.

        {¶63} In this matter, the record demonstrates that the jury submitted the following

question to the court, “[i]f offender is found guilty of a felonious assault, does the

offender also have to be found guilty of murder?”     The court then met with the attorneys

and drafted the following response:

        [i]f the Defendant was convicted of felonious assault regarding one and/or
        both of the alleged decedents * * * in order to find the Defendant guilty of
        murder you would have to find that the State proved beyond a reasonable
        doubt that the felonious assaults proximately caused the death of the alleged
        victim, because the murder has an additional element that you have to, the
        State has to prove that if a felonious assault occurred that that felonious
        assault proximately caused the death of the decedent. That’s an additional
        element in a murder.

        {¶64} The record further demonstrates that after the jury was given that response,

they continued to have confusion and submitted the following note to the court:

        If offender is found guilty of a felonious assault based upon the jury’s
        deciding that Defendant was driving the car * * *and had knowledge of
        situation, is he guilty of both murder and felonious assault?

        {¶65} At that point, the court summoned the jury with counsel present. The

record also demonstrates that defense counsel waived Lee’s presence.           (Tr.     1030,
1041.)     The court then informed the jury that in order to convict Lee of murder, if would

have to find as follows:

         the additional element that you would have to find is that the death is the
         result of the Defendant’s act or failure to act when it is produced in a
         natural and continuous sequence and would not have occurred without the
         act or failure to act. That’s the element of proximate cause on the
         additional element of murder that the State needs to prove.

         {¶66} Considering the first portion of the court’s response, we find no error by

application of Campbell, because the court’s written response sent to the jury room was

not a critical phase of the trial that required Lee’s presence.        Turning to the second

communication with the jury present, the record clearly demonstrates that defense counsel

was present for the question and the court’s responses and counsel waived Lee’s

presence. Accordingly, this assigned error is without merit.         Frazier.   Moreover, Lee

has not demonstrated any error in connection with the instruction provided to the jury.

Accord State v. Blackwell, 16 Ohio App.3d 100, 102, 474 N.E.2d 671 (10th Dist.1984).

         {¶67} The seventh assigned error is without merit.

         {¶68} 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA A. BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
