[Cite as State v. Penque, 2013-Ohio-4696.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99209




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   RICHARD PENQUE
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-555005

        BEFORE: Keough, J., Boyle, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: October 24, 2013
ATTORNEY FOR APPELLANT

Steve W. Canfil
1370 Ontario Street
Standard Building, Suite 2000
Cleveland, OH 44113-1701

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
John F. Hirschauer
Jennifer A. Driscoll
Blaise D. Thomas
Daniel T. Van
Assistant Prosecuting Attorneys
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Richard Penque, appeals from the judgment of the

trial court, rendered after a jury verdict, finding him guilty of aggravated murder,

aggravated burglary, kidnapping, attempted aggravated arson, and tampering with

evidence, and sentencing him to thirty years to life in prison. Finding no merit to the

appeal, we affirm.

                                        I. Facts

       {¶2} The evidence at trial demonstrated the following. In the morning hours of

April 7, 2008, 54-year-old Marilyn Habian was murdered in the basement of her home on

Ball Avenue in Euclid, Ohio. She was shot in the heart with a Speer .44 caliber Gold

Dot bullet.

       {¶3} Marilyn was a teacher at an elementary school and normally signed in for

work between 7:30 and 7:50 a.m. At approximately 8:15 a.m. on April 7, 2008, after

Marilyn had not signed in, the school secretary called Marilyn’s emergency contact and

boyfriend of eleven years, Eddie Mitchell, and asked that he check on her.

       {¶4} Mitchell, a self-employed artist, was at his home in Eastlake, Ohio that

morning. He had risen early, taken a picture of the sunrise from his kitchen window at

approximately 7:30 a.m., and then as he was outside taking other pictures, spoke with his

neighbor from approximately 7:30 to 7:45 a.m.

       {¶5} Mitchell drove to Marilyn’s house after he received the call from the

school. When he arrived, he saw Marilyn’s car, which was running, in the driveway.
After there was no response to his knock, he entered the home through the front door.

Mitchell immediately observed that Marilyn’s dogs were agitated and there was a smoky

haze in the air. He glanced in the dining room and saw Marilyn’s purse on the dining

room table and raw chicken meat on the floor next to the dogs’ dishes. He checked

upstairs but did not find Marilyn. Upon entering the kitchen, he saw that the stove top

was propped up, the burners and stove were on, and wads of paper were stuffed under the

burners in an apparent attempt to ignite a fire.

       {¶6} Mitchell then went downstairs to check the basement. He opened the

bathroom door, which had been locked from the outside, and discovered Marilyn’s body

on the floor. Finding no pulse, Mitchell held Marilyn and said goodbye to her. He then

called 911. Although the dispatcher told him not to go back in the house, he went back

inside and took four or five pictures of the scene, including a picture of Marilyn.

       {¶7} Euclid police responded to the 911 call. In the kitchen, they found a glass

of milk, peanut butter toast, and a plate of sliced strawberries, which apparently was

Marilyn’s uneaten breakfast.        They also found raw chicken by the dogs’ dishes.

Marilyn’s purse was on the dining room table; its contents were spilled out on the table.

There were no signs of forced entry to the home.

       {¶8} The police found Marilyn’s body in the basement bathroom. She was

dressed for work in a flowered skirt and top. From the blood marks on the floor, it

appeared that the body had been dragged from the laundry room into the bathroom and

the killer had tried to clean up the blood on the floor by pushing it into the floor drain.
A carpet remnant had been laid over the bloody drag marks on the floor; underneath the

carpet, the police found a crucifix with a few beads attached to it.

       {¶9} The Euclid police subsequently interviewed over 50 people in regard to the

murder but by December 2008, the case had gone cold. Every suspect — including

Mitchell, Marilyn’s son, and her ex-husband — had been excluded.

       {¶10} In December 2009, in the hope that someone who saw the show would

come forward with information, the Euclid police created an episode regarding some of

the details of Marilyn’s murder for the Warrant Unit television series. However, the

episode produced no new information or further leads in the case.

       {¶11} Nearly a year and half later, on April 14, 2011, Bryan Wellinghoff, a

prison investigator at the Correctional Reception Center (“CRC”) in Orient, Ohio,

contacted Euclid police detective Susan Schmid. Wellinghoff told detective Schmid that

CRC inmate Joseph Elswick had written a three-page letter that reported very specific

details about a murder on Ball Street in Euclid that Elswick had learned from his cellmate

Richard Penque.

       {¶12}    The letter stated that Penque had told Elswick that he was having

nightmares in which he could not stop seeing the murdered woman’s green eyes. Penque

told Elswick that he had broken into the woman’s house and was waiting for her to go to

work before he robbed it, but her dogs kept barking at the top of the basement stairs.

When the woman, who Penque said was wearing a flowered dress and pantyhose, went

into the basement and found him, they struggled for a second over the gun before he shot
her in the heart. Penque said that she hit her head when she fell, and he dragged her into

the basement bathroom. He then went upstairs, stole some jewelry and cash, and ate

some strawberries before he left the house. Penque told Elswick that he had gone to

school with the victim’s son, Billie, and wanted to steal Billie’s video games. He also

told Elswick that after he left the scene, he realized he had lost the cross from the rosary

he had been wearing, and that he later buried latex gloves, clothes, the gun, and a bloody

mop in the backyard of his mother’s home in Geauga County. Elswick reported that

Penque had also mentioned someone by the name of Erica.

       {¶13} After detective Schmid verified that the letter contained details that had not

been released to the public in the Warrant Unit episode, she and Euclid police detective

Kenneth Kucinski interviewed Elswick, who gave the detectives additional information

not contained in the letter. Elswick reported that Penque had also told him that he had

tried to feed the dogs raw chicken, and that he had lost the cross from his rosary when he

had gone back downstairs and tried to mop up the blood. Elswick also reported that

Penque had told him that he had used a .44 caliber gun, which he had buried in his former

girlfriend Erica’s backyard. Penque also told Elswick that Erica’s current boyfriend,

Jeffrey, now had the bag with the gun.

       {¶14} On May 10, 2011, the detectives interviewed Penque, who denied ever

meeting Marilyn. The detectives told Penque that his DNA had been found at the scene

(which was not true) and showed him the crucifix recovered from the crime scene, but

Penque denied ever wearing or owning a rosary.
          {¶15} A week later, upon learning that Penque had been transferred to Mansfield

Correctional Institution, Detective Schmid contacted Karen Hunsinger, an institutional

investigator at Mansfield, and asked her to monitor Penque’s telephone calls. Hunsinger

also placed Jamison Kennedy, a Mansfield inmate and informant, in Penque’s cell to see

if Penque would confide in him. As he had done with Elswick, Penque told Kennedy the

details of the murder, including that before committing the burglary, he had kissed the

cross on the rosary he was wearing for good luck but part of the necklace had been left at

the scene. Penque initially told Kennedy that he had buried the gun near a jacuzzi in the

backyard of his mother’s house in Chesterland, Ohio; later he told him that he had given

the gun to his neighbor Erica and that Erica’s boyfriend had done something with the gun.



          {¶16}   The Euclid police subsequently determined that Penque lived on Ball

Avenue in Euclid at the time of the murder and later moved to Chesterland, Ohio. They

also learned that the “Erica” referred to by Elswick and Kennedy was Erica Judson,

Penque’s ex-girlfriend and next-door neighbor in Chesterland. The police subpoenaed

Penque’s institutional phone records and learned that on January 3, 2011, Penque had

spoken to Erica’s husband, Jeffrey Busser, and Busser had told Penque “I took care of

that.” The next day, Penque spoke with his sister Heather about a “clip from a big

thing.”

          {¶17} The police questioned Erica and Busser in September 2011. Erica told the

police that in August 2008, Penque told her he had put a black trashbag in her backyard
and, a few days later, she took the bag to Busser, who was living with his mother in

Munson, Ohio. Busser subsequently led the police to the black bag, which he had hidden

in a dense field behind his mother’s home. Inside and around the bag, the police found a

bottle of gun oil, a black ski mask, size 11 tennis shoes, a baseball bat, a pair of blue latex

gloves, and Speer .44 caliber Gold Dot bullets.

       {¶18} As part of their investigation, the police executed a search warrant for the

Ball Avenue property where Penque lived at the time of the murder. In the garage, they

found a box labeled “Rick’s Desk.” Beneath the box, they found newspaper articles

about Marilyn’s life and her obituary. In the box, they found a composition book that

contained, among other drawings, a drawing of a rosary missing two beads and without a

crucifix, and with what appeared to be tears coming out of the end of the rosary.

       {¶19} Penque testified at trial. He said that he lived on Ball Avenue until July

2008, when he moved to Chesterland. He admitted that in August 2008, after a party at

the Chesterland home, he hit one of the attendees with a baseball bat, and was

subsequently convicted of aggravated assault and sentenced to 17 months in prison.

Penque admitted that Elswick was his cellmate at Orient CRC, and said that he had

discussed Marilyn’s murder with Elswick after hearing about it “from around the

neighborhood.” Penque likewise said that he discussed the details of Marilyn’s murder

with Kennedy based on “stuff around the neighborhood” that he had heard. He said that

his lifelong friend Bryan Schiffbauer told him what was stolen from Marilyn’s home and
about the crucifix found at the murder scene; a claim refuted by Schiffbauer, who testified

that he never discussed the murder with Penque.

       {¶20} Penque denied killing Marilyn and said that he saw her getting in her car at

approximately 8:00 a.m. the morning she was murdered as he was leaving his uncle’s

house to drive to Tops, the bank, and the gas station. He said that at 9:48 a.m. that

morning, he deposited $80 in cash at a nearby credit union and at 10:05 a.m. that day,

when he was back at the house, he spoke with a Euclid policeman who was canvassing

the area.

       {¶21} Penque admitted that after the August 2008 assault incident, he put a bat, a

marijuana bong, some Speer .44 caliber Gold Dot bullets, and gun oil in a trash bag and

buried it under some leaves in Erica’s yard, and that he told Erica about the bag. He also

admitted that when he telephoned his sister Heather from prison about the “clip from a

big thing” she told him that “Jeffrey’s got your back.” He further admitted that he had

lied to the detectives during his interview at CRC when he told them that he had never

worn a rosary and had never met Marilyn. He also admitted that he had sketched the

rosary with the missing beads and teardrops in the composition book but said it was a

drawing of a tattoo he wanted to get.

                                        II. Analysis

A.     Evidentiary Issues
      {¶22}    In his first assignment of error, Penque contends that the trial court

violated his rights to confrontation of witnesses and due process by admitting improper

evidence and excluding exculpatory evidence.

      {¶23}    The trial court has broad discretion in the admission or exclusion of

evidence, and unless it has clearly abused its discretion and the defendant has been

materially prejudiced thereby, an appellate court should be slow to interfere. State v.

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 122. “An abuse of

discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.” State

ex rel. Stiles v. School Emps. Retirement Sys., 102 Ohio St.3d 156, 2004-Ohio-2140, 807

N.E.2d 353, ¶ 13.

1.    Joseph Elswick’s Testimony

      {¶24}    Penque first takes issue with the admission of Elswick’s testimony.

Elswick and Penque were cellmates in the mental health facility at Orient CRC in March

and April 2011. Elswick, who testified that he has been diagnosed with schizoaffective

disorder, bipolar disease, and post-traumatic stress disorder, was paroled a few months

after he wrote his letter detailing what Penque had told him about Marilyn’s murder.

Shortly thereafter, he reoffended, and was arrested and jailed.    After the Ashtabula

County Common Pleas Court ordered a competency evaluation, the court psychiatrist

issued an opinion finding Elswick not competent to stand trial. Elswick was incarcerated

at a state forensic psychiatric hospital awaiting restoration of his competency when he

testified at Penque’s trial.   Penque contends that the trial court erred in admitting
Elswick’s testimony because the state failed to demonstrate that he was competent to

testify.

           {¶25}   The determination of witness competency is within the trial court’s

discretion. State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). Under

Evid.R. 601, “[e]very person is competent to be a witness except: (A) those of unsound

mind, and children under ten years of age, who appear incapable of receiving just

impression of the facts and transactions respecting which they are examined, or relating

them truly.”

           {¶26} A witness of “unsound mind” is not automatically incompetent to testify.

State v. Bradley, 42 Ohio St.3d 136, 140, 538 N.E.2d 373 (1989). “A person who is able

to correctly state matters which have come within his perception with respect to the issues

involved and appreciates and understands the nature and obligation of an oath, is a

competent witness notwithstanding some unsoundness of mind.” Id., quoting State v.

Wildman, 145 Ohio St. 379, 61 N.E.2d 790 (1945), paragraph three of the syllabus.

           {¶27} Penque cites State v. Braden, 56 Ohio App. 19, 9 N.E.2d 999 (1936), for

the proposition that a witness’s mental illness shifts the burden to the state to show that

the witness is competent to testify.        Braden held that where a “witness whose

competency is questioned is under commitment for insanity, the burden of proof rests

upon the state to show the competency of such witness.” Id. Braden, however, was

decided before Bradley, wherein the Ohio Supreme Court stated its view that a witness of

unsound mind is not automatically incompetent to testify. Accordingly, Braden is not
persuasive authority. State v. Marshall, 191 Ohio App.3d 444, 2010-Ohio-5160, 946

N.E.2d 762, ¶ 17 (2d Dist.)

       {¶28} Here, the trial court held a hearing, and the prosecutor and defense counsel

questioned Elswick about his prior delusional thoughts, current mental state, medications,

age, where he was born, and who the president of the United States was. Elswick was

able to understand and answer all the questions. The state also questioned Elswick

regarding the legal significance of taking an oath to tell the truth and the consequences of

lying, which Elswick understood.        The trial court ruled that Elswick was “capable of

receiving just impressions of fact and relating them truthfully.” We find no abuse of

discretion in the trial court’s ruling. A review of Elswick’s testimony indicates that he

was able to perceive, recollect, and relate facts truthfully.

2.     Jamison Kennedy’s Testimony

       {¶29} Penque next contends that Jamison Kennedy’s testimony was inadmissible

because the state purposely placed Kennedy in his cell in an attempt to elicit incriminating

information from him and, therefore, Kennedy was acting as a state agent when he

questioned him, without the benefit of Miranda warnings and in violation of his right to

counsel.

       The rights protected by the Fifth and Sixth Amendments are compatible,
       although not identical.       The [United States] Supreme Court [has]
       determined that any suspect subject to a custodial interrogation, regardless
       of whether formal criminal proceedings have begun, must be given notice
       of his Fifth Amendment privilege against self-incrimination. Miranda v.
       Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
       That privilege necessarily includes the right to have counsel present at an
       interrogation; id. at 469-71, as reflected in the standard warning developed
      by the Court in Miranda: “Prior to any questioning, the person must be
      warned that he has a right to remain silent, that any statement he does make
      may be used as evidence against him, and that he has a right to the presence
      of an attorney, either retained or appointed.” Id. at 444.

      Unlike the Fifth Amendment, the Sixth Amendment applies only after the
      initiation of formal criminal proceedings, such as the filing of an
      indictment. United States v. Yousef, 327 F.3d 56, 140 (2d Cir.2003), citing
      United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d
      146 (1984). Once the Sixth Amendment has attached, the government may
      not “deliberately elicit” incriminating statements from the defendant
      without the presence of his attorney. See United States v. Henry, 447 U.S.
      264, 270, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (outlining the
      deliberate-elicitation standard).

United States v. White, S.D.Ohio No. 1:11-cr-071-3, 2012 U.S. Dist. LEXIS 174163

(Dec. 7, 2012).

      {¶30} In this case, Penque did not object to Kennedy’s testimony and, accordingly,

waived all but plain error. State v. Loza, 71 Ohio St.3d 61, 75, 1994-Ohio-409, 641

N.E.2d 1082. Plain error is recognized where, but for the error, the result of the trial

would clearly have been otherwise. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph two of the syllabus.

      {¶31} With respect to Penque’s Fifth Amendment right to counsel, even assuming

without deciding that Kennedy was acting as a state agent, there is simply no evidence

that he interrogated Penque. In fact, Kennedy testified that Penque “initiated it [the

conversation] himself” because he was worried and “he kind of just told me these things

on his own.” Accordingly, we find no violation.

      {¶32} With respect to Penque’s Sixth Amendment right to counsel, when Penque

spoke with Kennedy, he was incarcerated on felonious assault convictions. No formal
proceedings relative to Marilyn’s murder had been initiated or filed against him; hence,

his Sixth Amendment right to counsel was not implicated and there was no violation.

Moreover, even if the admission of Kennedy’s testimony were error, we find it to be

harmless error in light of the significant other evidence at trial that established Penque’s

guilt. See Ayers v. Hudson, 623 F.3d 301, 317, n.12 (6th Cir.2010) (such violations are

subject to harmless-error analysis).

3.     Edward Mitchell’s Testimony

       {¶33} The trial court granted the state’s motion in limine to preclude defense

counsel from disclosing to the jury that Mitchell had failed a polygraph examination.

Penque contends that the trial court’s decision to grant the motion in limine was an abuse

of discretion because, since Mitchell’s behavior when he discovered the body was so

bizarre, the jury could well have reached a different conclusion about Penque’s guilt if

they had been told that Mitchell had failed a polygraph test. Penque did not object to the

state’s motion and, therefore, waived all but plain error. We find no error, plain or

otherwise, in the trial court’s granting of the motion.

       {¶34} The criteria for the admission of polygraph examination results was set

forth in State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978). One criterion is that

all parties must stipulate to the admission of the test results.      The Supreme Court

explained:

       The nature of polygraphs is different from traditional scientific tests. Most,
       if not all, scientific tests involved objective measurements such as blood or
       genetic typing or gunshot residue. In a polygraph test, the bodily response
       of the examinee to his answers is dependent upon the subjective
       interpretation thereof by the examiner. Inasmuch as the test is not
       perceived by the profession to be reasonably reliable, its admissibility is
       limited in Ohio to situations where the parties stipulate to its admission.

State v. Davis, 62 Ohio St.3d 326, 341, 581 N.E.2d 1362 (1991).

       {¶35} No such stipulation was entered into in this case and, therefore, the trial

court did not abuse its discretion in granting the state’s motion to exclude any reference to

the test results.

       {¶36} Moreover, Penque’s argument that the jury may have found reasonable

doubt of his guilt if they were aware that Mitchell failed the polygraph test is not

supported by the evidence. Marilyn’s neighbor testified that he saw Marilyn in her

kitchen at 6:30 to 6:40 a.m. that morning, and that she normally left for work at 7 a.m.;

hence, the police concluded that the murder occurred sometime between 6:30 and 7 a.m.

Mitchell’s neighbor testified that he went outside at 6:45 a.m. that morning and saw

Mitchell’s lights on in his home and both of his cars in his driveway. At 7:30 a.m. that

morning, Mitchell took a picture from his kitchen window, and from approximately 7:30

to 7:45 a.m., he stood outside and spoke with his neighbor. Detective Schmid testified

that because Mitchell could not have been in two places at the same time, the police

eliminated him as a suspect.

4.     The Warrant Unit Video

       {¶37} Penque next argues that the judge abused his discretion in allowing the

state to play the Warrant Unit video for the jury because it was unduly prejudicial and,
therefore, inadmissible.1 But Penque stipulated at trial to the admission of the video and,

in fact, argued during closing argument that Elswick and Kennedy’s testimony was false

because they learned the details of Marilyn’s murder from the video and not from him.

“[A] criminal defendant may not make an affirmative, apparently strategic decision at

trial and then complain on appeal that the result of that decision constitutes reversible

error.” State v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7. Under the

invited error doctrine, a party is not entitled to take advantage of an error that he himself

invited or induced. State v. Campbell, 90 Ohio St.3d 320, 324, 2000-Ohio-183, 738

N.E.2d 1178. Any alleged error was invited by Penque and, accordingly, we find no

merit to this argument.

5.     Video Recording of Police Interview of Penque

       {¶38} Last, Penque contends that the trial court abused its discretion in admitting

the video recording of his interview with detectives Schmid and Kucinski. He contends

that the video was unduly prejudicial and misleading because it contained false

information that his DNA was found at the scene and that it violated his due process

rights and right against self-incrimination because it showed that he became

uncooperative and asked for a lawyer when the detectives showed him the cross found at

the scene. We find no abuse of discretion.




         Evid.R. 403(A) provides: “(A) Although relevant, evidence is not admissible if its probative
       1


value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.”
      {¶39} Detective Kucinski testified that the detectives falsely told Penque that his

DNA was found at the scene as a technique to see if he would confess to the murder.

And Lisa Moore, a forensic scientist in the Cuyahoga County medical examiner’s office,

testified that none of Penque’s DNA was found on any of the items or swabs from

Marilyn’s home. Thus, the jury was aware that despite the detectives’ statement to

Penque during the videotaped interview, none of his DNA was found at the scene.

       {¶40} We also find no violation of Penque’s rights to due process and against

self-incrimination. The jury was not shown the portion of the recording in which Penque

invoked his Miranda rights, nor was there any mention during trial that Penque had

invoked his rights after the detectives Mirandized him. Accordingly, we find no abuse of

discretion in the admission of the videotaped interview.

      {¶41} The first assignment of error is therefore overruled.

B.     Sufficiency of the Evidence

      {¶42} In his second assignments of error, Penque contends that his convictions

were not supported by sufficient evidence.

       {¶43} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. 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.

       {¶44} Penque does not argue that the evidence was insufficient to establish the

elements of the crimes of which he was convicted — only that the evidence was

insufficient to prove he was the perpetrator. Specifically, he contends that the there was

no scientific evidence linking him to the murder because neither his DNA nor fingerprints

were found at the scene, and there was unidentified DNA on several items, including the

side door dead-bolt lock through which the murderer allegedly entered the home, and a

bloody envelope discovered next to Marilyn’s body.

       {¶45} But Penque’s argument ignores the extensive circumstantial evidence that

tied him to the crimes. Penque provided detailed accounts of the murder to Elswick and

Kennedy, including details not known to the public from the Warrant Unit video — that

Penque shot Marilyn with a .44 caliber gun, that he lost the crucifix from his rosary at the

scene, and that he disposed of a bag that contained items related to the murder, including

latex gloves, in Erica Judson’s backyard.

       {¶46}    Penque’s admissions to Elswick and Kennedy were corroborated by

physical evidence: Marilyn was shot in the heart with a Speer .44 caliber Gold Dot

bullet, the same type of bullets Penque said he buried in the trashbag; Erica and Busser

admitted that they had disposed of a plastic bag for Penque; the latex gloves recovered

from the trash bag tested presumptive positive for blood; Penque admitted at trial that he
had worn a rosary in the past; the cross discovered by the police at the scene had a few

beads attached to it; and the drawing of the rosary in Penque’s composition book, which

Penque admitted he drew, was of a rosary without a crucifix and missing two beads, with

tears coming out of the end of the beaded rosary.

       {¶47} This evidence was more than sufficient to establish that Penque was the

perpetrator of the crimes. Contrary to Penque’s assertions, the state was not required to

present evidence that his DNA or fingerprints were found at the scene, and the presence

of unidentified DNA at the scene does not exclude him as the murderer. In light of the

extensive evidence linking Penque to the crimes, the evidence was sufficient to support

his convictions.

       {¶48} The second assignment of error is overruled.

C.     Manifest Weight of the Evidence

       {¶49} “A manifest weight challenge * * * questions whether the prosecution met

its burden of persuasion.”         State v. Ponce, 8th Dist. Cuyahoga No. 91329,

2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). The manifest-weight-of-the-evidence standard of review requires us to review

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether, in resolving conflicts in the evidence,

the trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus.
       {¶50} In his third assignment of error, Penque contends that his convictions were

against the manifest weight of the evidence because the evidence against him was entirely

circumstantial and based upon the testimony of “jailhouse snitches” who sought and

received leniency for their testimony. Penque’s arguments have no merit.

       {¶51} First, circumstantial evidence alone is sufficient to support a conviction;

physical evidence is not required. State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236

(1988), paragraph two of the syllabus; State v. Lopez, 8th Dist. Cuyahoga No. 94312,

2011-Ohio-182, ¶ 62, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph one of the syllabus. In this case, however, in addition to the significant

circumstantial evidence linking Penque to the murder, there was also physical evidence

that corroborated the details about the murder that Penque disclosed to Elswick and

Kennedy.

       {¶52}    Moreover, despite Penque’s assertions otherwise, neither Elswick nor

Kennedy received anything in exchange for their testimony against him.          Kennedy

testified that neither detective Schmid, detective Kucinski, nor the prosecutor’s office

promised him anything in exchange for his cooperation and, in fact, that he did not

receive any special benefit for his testimony. Elswick had already appeared before the

parole board and been recommended for parole before Penque told him about the murder.

 He testified that he came forward because he wanted to “do something right for once in

my life” and that he had no deal with the prosecutor for any special benefit in exchange

for his testimony.
       {¶53}    Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial is reserved for only those “exceptional cases in which

the evidence weighs heavily against the conviction.” Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. This is by no means that exceptional case. Although

Penque complains that the evidentiary “puzzle pieces” did not fit together to establish that

he was the murderer, our review of the record demonstrates that the jury did not lose its

way or create a manifest miscarriage of justice in convicting him of aggravated murder,

aggravated burglary, kidnaping, attempted aggravated arson, and tampering with

evidence. The third assignment of error is therefore overruled.

D.     Prosecutorial Misconduct

       {¶54} In his fourth assignment of error, Penque contends that he was denied his

rights to due process and a fair trial because of a “pervasive pattern of prejudicial

prosecutorial misconduct that infected the entire trial.”

       {¶55} The test for prosecutorial misconduct is whether the conduct was improper

and, if so, whether it prejudicially affected the substantial rights of the accused. State v.

Jones, 90 Ohio St.3d 403, 420, 2000-Ohio-187, 739 N.E.2d 300. The effect of the

alleged misconduct must be judged in the context of the entire trial, and not treated as an

isolated incident in an otherwise properly tried case.       State v. Singleton, 8th Dist.

Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 58. Accordingly, an appellate court should

only reverse a conviction if the effect of the misconduct “permeates the entire atmosphere

of the trial,” such that the defendant has been denied a fair trial. Id., citing State v.
Tumbleson, 105 Ohio App.3d 693, 696, 664 N.E.2d 1319 (12th Dist.1995). In analyzing

whether a defendant was deprived of a fair trial, an appellate court must determine

beyond a reasonable doubt whether, absent the improper questions or remarks, the jury

would have found the defendant guilty. State v. Maurer, 15 Ohio St.3d 239, 266-267,

473 N.E.2d 768 (1984).

      {¶56} Penque first contends that the prosecutor had no authority to cause Elswick

to be transported from the state psychiatric facility to Cuyahoga County Common Pleas

Court to testify because he was under the jurisdiction of the common pleas court of

Ashtabula County. This argument is without merit. Under R.C. 1907.18, county court

judges have jurisdiction and authority to issue subpoenas to compel witnesses to testify in

matters pending before the judge. Such subpoenas may be served at any place within the

state of Ohio. Crim.R. 17(F).

      {¶57} Penque next asserts that his and Elswick’s constitutional rights were

violated because the prosecutor did not inform Elswick’s lawyer in the Ashtabula County

case about Elswick’s testimony in Cuyahoga County. This argument likewise fails. As

discussed earlier, the Fifth Amendment right to counsel applies when an individual is a

suspect subject to a custodial interrogation; the Sixth Amendment right to counsel

attaches after formal criminal proceedings have been filed. But Elswick was not a

suspect undergoing custodial interrogation when he testified at Penque’s trial, nor had

criminal charges relating to Marilyn’s murder been filed against him. Moreover, Elswick
signed a written waiver of any right to counsel regarding his testimony in Penque’s case.

Accordingly, there was no constitutional violation nor any prosecutorial misconduct.

      {¶58} Penque next argues that the prosecutor somehow “blind sided” defense

counsel with Elswick’s testimony. He asserts that defense counsel was not provided with

adequate time to obtain information and testimony from the Ashtabula County court

psychiatrist who had evaluated Elswick and thus, that counsel could not adequately

prepare for cross-examination of Elswick. This argument is likewise without merit.

The record demonstrates that defense counsel was aware for months that Elswick was a

prospective witness, and that both the prosecutor and defense learned of the court

psychiatrist’s report declaring Elswick incompetent to assist in his defense in the

Ashtabula County case only after trial had started. The state then procured Elswick’s

psychiatric records and provided them to defense counsel, who, after reviewing the

records, conducted an extensive, detailed, and effective cross-examination of Elswick.

      {¶59} Penque also argues that in light of Elswick’s mental history and false

statements to the jury, the prosecutor committed misconduct by allowing him to testify.

This argument also fails. Elswick’s competency to testify was determined by the trial

judge after a full voir dire hearing in which Penque had an opportunity to cross-examine

Elswick on his history of delusions and current mental health. At trial, Elswick’s mental

history and current mental state were discussed at length on both direct and

cross-examination; thus the jury was fully aware of Elswick’s mental health and was able

to judge his testimony accordingly. Moreover, there is nothing in the record to suggest
that Elswick misled the jury in any way and, in fact, much of his testimony was

corroborated by Kennedy and the physical evidence.

       {¶60} Last, Penque takes issue with the prosecutor’s closing argument.                       He

contends that the prosecutor withheld “exculpatory evidence” from the jury that Mitchell

had failed a polygraph exam and then “mischaracterized” the evidence in closing by

arguing that Mitchell had been excluded as a suspect and calling Penque “a coward and

a liar.” We find no misconduct.

       {¶61} In State v. Davis, 62 Ohio St.3d 326, 341, 581 N.E.2d 1362 (1991), the

Ohio Supreme Court determined that due to their scientific unreliability, polygraph

examination results of prosecution witnesses are not considered exculpatory material

discoverable under either Crim.R. 16 nor United States v. Brady, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963).2 Furthermore, as discussed above, the trial court properly

excluded the results of Mitchell’s polygraph examination at trial. Accordingly, the state

did not withhold exculpatory evidence from the jury by not telling them that Mitchell had

failed a polygraph examination.

       {¶62} Nor do we find that the prosecutor “mischaracterized” the evidence in

closing by arguing that Mitchell had been excluded as a suspect and Penque was “a

coward and a liar.” Detective Schmid testified that the police had investigated Mitchell

after the murder but eliminated him as a suspect because he had an alibi. And on


         In Brady, the United States Supreme Court determined that the due process clause requires
       2


the states to disclose to the defendant evidence that is both favorable to the defendant and material to
either guilt or punishment.
cross-examination, Penque admitted that he lied to the police when he told them that he

had never worn a rosary and had not met Marilyn. Although referring to or alluding to a

defendant as a liar is generally improper, a prosecutor may call a defendant a liar during

closing argument if the statement is supported by the evidence at trial. State v. Tyler, 50

Ohio St.3d 24, 553 N.E.2d 576 (1990).

       {¶63} We find no prosecutorial misconduct in this case and accordingly, overrule

the fourth assignment of error.

E.     Jury Instructions

       {¶64} In his fifth assignment of error, Penque argues that he was denied his right

to a fair trial because the trial court did not give his proposed jury instructions.

       {¶65}    Ordinarily, requested instructions should be given if they are correct

statements of the law applicable to the facts in the case. Murphy v. Carrolton Mfg. Co.,

61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991). The trial court is not required to use the

proposed jury instruction verbatim; the court need only include the substance of the

proposed instruction. Youssef v. Parr, 69 Ohio App.3d 679, 690, 591 N.E.2d 762 (8th

Dist.1990).

       {¶66} A trial court’s decision on jury instructions is treated with deference, and

an appellate court will not reverse absent an abuse of discretion. Ament v. Reassure Am.

Life Ins. Co., 180 Ohio App.3d 440, 2009-Ohio-36, 905 N.E.2d 1246, ¶ 37 (8th Dist.),

citing Jaworowski v. Med. Radiation Consultants, 71 Ohio App.3d 320, 327-328, 594

N.E.2d 9 (2d Dist.1991) To show reversible error, the proponent of the instruction must
show both that the trial court’s refusal to give the instruction was an abuse of discretion

and that he was prejudiced by the court’s refusal to give the proposed instruction. Id.

Thus, this court will not reverse unless an instruction is so prejudicial that it may induce

an erroneous verdict. Youssef at 691.

       {¶67} Penque requested that the trial court instruct the jury that it is permissible for

the state to use an informant, but informant testimony must be examined and weighed by

the jury with “greater caution” than the testimony of a witness who is not motivated to

testify for personal reasons or advantage. Penque refers us to R.C. 2923.03(D), which

provides that testimony from accomplices is subject to “grave suspicion” and should “be

weighed with great caution.”       He contends that informant testimony is similar to

accomplice testimony and, therefore, the trial court erred in not including the “greater

caution” language with respect to Elswick and Kennedy’s testimony.

       {¶68} Although it did not give Penque’s proposed “greater caution” instruction,

the trial court instructed the jury that in addition to evaluating an informant’s testimony as

it would the testimony of other witnesses, it “should also specifically examine whether the

informant’s testimony has been at all affected by any self-interest of the informant.”

This instruction was, in substance, similar to Penque’s proposed instruction and

accordingly, we find no abuse of discretion.

       {¶69} Penque next contends that the trial court abused its discretion in not

instructing the jury, as proposed, that in determining the credibility of witnesses, it should

consider, among other things, “the existence of mental illness or the lack thereof” and the
witness’s prior convictions.     The trial court instructed the jury, however, that in

determining the credibility of a witness, in addition to the other factors enumerated by the

court, “you may consider any other facts and circumstances surrounding the testimony

which, in your judgment, would add to or detract from the credibility and weight of the

witness’s testimony.” This instruction was, in substance, similar to Penque’s proposed

instructions and, accordingly, we find no abuse of discretion.

       {¶70} The fifth assignment of error is therefore overruled.

       {¶71} 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.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
TIM McCORMACK, J., CONCUR
