[Cite as State v. Burry, 2018-Ohio-4477.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2017-L-160
        - vs -                                       :

ROBERT BURRY,                                        :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000036.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, Jennifer A. McGee and Paul E. Kaplan,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Robert P. Burry, appeals his convictions for

Attempted Murder, Felonious Assault, and Kidnapping as well as his post-merger

sentence for Attempted Murder following a jury trial in the Lake County Court of

Common Pleas.            The issues before this court are whether a trial court errs by

preventing a defense expert from testifying to the results of an experiment when the fact

that the experiment had been conducted was not disclosed to the prosecution; whether
a prosecutor commits prosecutorial misconduct by placing a gun against his forehead

during closing argument to demonstrate an issue at trial; whether convictions for

Attempted Murder, Felonious Assault, and Kidnapping are not supported by sufficient

evidence and/or are against the weight of the evidence where the victim’s testimony at

trial is at variance with her initial statements to the police and where the defendant’s

expert testified to the unlikelihood of a gun being loaded when it is fired twice without

discharging a bullet; and whether a thirteen-year sentence for Attempted Murder with a

Firearm Specification is clearly and convincingly supported by the record based on the

psychological harm caused the victim and the defendant’s minimization of his conduct.

For the following reasons, we affirm the decision of the court below.

       {¶2}   On January 27, 2017, the Lake County Grand Jury indicted Burry of the

following: two counts of Attempted Murder (Counts 1 and 2), felonies of the first degree

in violation of R.C. 2903.02(A) and R.C. 2923.02; two counts of Felonious Assault

(Counts 3 and 4), felonies of the second degree in violation of R.C. 2903.11(A)(2);

Kidnapping (Count 5), a felony of the first degree in violation of R.C. 2905.01(A)(3);

Domestic Violence (Count 6), a misdemeanor of the first degree in violation of R.C.

2919.25(A); Aggravated Menacing (Count 7), a misdemeanor of the first degree in

violation of R.C. 2903.21; Using Weapons While Intoxicated (Count 8), a misdemeanor

of the first degree in violation of R.C. 2923.15; and Resisting Arrest (Count 9), a

misdemeanor of the second degree in violation of R.C. 2921.33(A). Counts 1 to 5 of the

Indictment contained Firearm Specifications pursuant to R.C. 2941.145.

       {¶3}   On February 3, 2017, Burry was arraigned and entered a plea of “not

guilty” to the charges in the Indictment.




                                            2
       {¶4}     Between September 19 and 21, 2017, a jury trial was held. Prior to the

commencement of trial, the State elected to dismiss Counts 6 to 9 of the Indictment.

The following witness testimony was given at trial:

       {¶5}     Sergeant Daniel Hirz of the Willowick Police Department testified that, at

about 8:24 p.m. on Christmas Eve 2016, he responded to a call at the home of Robert

and Carol Burry at 299 East 293rd Street. Upon arrival, Hirz observed: “Mrs. Burry at

the end of the driveway crouched down behind the cars that were parked in the street.

She was crying, a bit hysterical and she was just saying he tried to shoot me twice.”

Hirz entered the residence with his weapon drawn.

       {¶6}     Sergeant Hirz met Burry in the hallway:

                I ordered him to the ground, I ordered to see his hands. Initially he
                showed me his hands and complied and was beginning to kneel
                down in compliance. * * * I saw he didn’t have anything in his
                hands, I began to holster my weapon and he decided to get up and
                he said to shoot me, you mother and then he began to say the word
                fucker but since he was advancing on me I kicked him in the chest
                knocking him backwards which took the wind out of him. * * * [He]
                staggered backwards until he ran into the couch and sofa which
                kept him [from] falling over. Once he regained his balance Officer
                Sobkowich, who shortly came in the door right behind me * * *
                tased Mr. Burry striking him in the chest which dropped forward and
                on to the ground.

Thereupon, Burry was handcuffed.            Sergeant Hirz noted that he was “highly

intoxicated.”

       {¶7}     During the subsequent search of the residence: a magazine containing

one bullet was found under the couch; a nine-millimeter shell casing was found in

Burry’s bedroom; a firearm was found in a drawer in Burry’s bedroom; and a bullet hole

was found, originating in Burry’s bedroom, passing through another bedroom, and

exiting the house.



                                              3
       {¶8}      A video taken from Sergeant Hirz’ body cam was played for the jury. In

the video, Hirz asks Carol if Burry fired the gun at her and she responded that there

were no bullets in it. She stated he “stuck it right to my [indicating her forehead].” Carol

then advised Hirz that there was a gun that did go off, apparently believing it was a

different gun.

       {¶9}      After being subdued, Burry denied that there was a firearm and that he did

“anything.” Several minutes later, he admitted that a gun had gone off but he denied

pointing the gun at anybody and claimed he would never hurt his wife.

       {¶10} Prior to taking their written statements, Sergeant Hirz interviewed Carol

and her son (Burry’s stepson), Kyle Johnson, in the basement of the home. Carol

recalled that Burry threatened to kill her dogs and asked if she would like to die tonight.

She repeated, indicating with her hands, that the gun was pointed at her head and belly

and that he pulled the trigger. She claimed, “he didn’t know if there could have been a

bullet in there.” Kyle interrupted and said, “there was.” She continued, “he didn’t know.”

       {¶11} Officer Shaun Kovacic of the Willowick Police Department testified that he

responded to the Christmas Eve call to the Burry residence and entered the home after

Sergeant Hirz. After Mr. Burry was subdued, Kovacic searched his bedroom. He found

a spent shell casing on the floor and a pistol in a dresser drawer. Kovacic also noted a

bullet hole in the bedroom which led into another bedroom and finally through the

exterior wall of the house.

       {¶12} Officer Steven Sobkowich of the Willowick Police Department responded

to the Christmas Eve call to the Burry residence. His testimony corroborated Sergeant




                                              4
Hirz’ version of events. Sobkowich noted powder residue on Mr. Burry’s left hand. A

video taken from Sobkowich’s body cam was played for the jury.

       {¶13} On the Officer Sobkowich video, Burry admits that he went to his room

and loaded the Beretta and that there were two bullets in the magazine. He claimed

that when he pulled the slide the gun went off accidentally. Burry denied that he ever

pointed the gun at Carol.

       {¶14} Kyle Johnson was living with his mother (Carol) and stepfather (Robert

Burry) in 2016. He testified that he, Burry, and Carol kept guns in the house. Burry

kept his guns “ready to go with a clip, a magazine filled and in the gun with the safety

off” and “always close by * * * to a bed or a dresser.”

       {¶15} Carol and Burry’s marriage had been deteriorating and the couple argued

frequently.   Carol wanted a divorce and had made arrangements to move into an

apartment. Kyle would remain in the home with Burry until it could be sold.

       {¶16} During the afternoon on Christmas Eve, Kyle and Carol were watching a

movie while Burry was out having a couple of beers with a friend. Burry returned home,

“visibly drunk,” and wanted to open gifts. He became very angry while waiting for the

movie to finish. Burry began to badger Carol about the impending divorce while his

mood swung from angry to sad. For the first time that he could recall, Kyle heard Burry

become “verbally abusive” toward Carol, calling her a “traitor” and a “piece of shit.” Kyle

retired to his room as the argument continued for about ten minutes.

       {¶17} Eventually, Burry went to his room and Carol watched television. Kyle

next heard the safe in Carol’s room where guns were kept make a “clanging” noise.

Kyle testified: “The next sound I heard was Bob rush[ing] out of the room and then




                                             5
immediately after that I heard my mother calling my name and screaming Kyle, help,

help, call the police.”

       {¶18} Kyle called 911 and walked to the living room and observed the following:

               I saw Bob holding my mother down with his left hand, the Beretta in
               his right hand directly on her forehead. * * * She was kicking and
               screaming and * * * as I moved closer, she kicked, was able to kick
               him off of her for a moment. In that moment the gun was pointed in
               my direction. * * * I moved toward the stairs. As Bob saw me
               move towards the stairs he moved his attention back towards my
               mom. * * * As I was describing to the dispatcher what was going
               on above me * * * my mother said you shot me, Bob, how could you
               shoot me right in the stomach. I became really scared at that
               moment and a little confused because at that point I hadn’t heard a
               shot yet. * * * I heard lots of footsteps, I heard doors slamming, * *
               * and then I heard a shot in the house.

Kyle remained in the basement on the phone with dispatch until the police entered the

house.

       {¶19} Carol Burry testified regarding the deterioration of her marriage with Burry,

particularly following Burry’s retirement in 2016.

       {¶20} On Christmas Eve, Carol was watching a movie with Kyle while they

waited for Burry to return home to open gifts.         Carol noted that Burry was “very

intoxicated” when he returned. As they opened gifts, he became very agitated and

began saying “terrible things” and “derogatory comments” about her and the pajamas

she was wearing, their dogs, and the program on television.

       {¶21} As their argument escalated, Burry left the room and, as he did so, he

whispered in Carol’s ear, “how would you like to die tonight?” The following occurred:

               Within seconds he was on top of me and holding me down and had
               the gun to my head pressing up against my forehead * * * and he
               pulled the trigger and I started screaming and kicking him off me
               and trying to get away and I was yelling for Kyle’s help. * * * [A]nd
               he came right back at me and pushed the gun dead into the



                                             6
                abdomen as he was holding me with the gun and he fired it again,
                he pulled the trigger. * * * I was screaming he shot me. * * * I got
                down lower and had a better kick and I also took my arms like to
                get the gun away from me and I knocked his [right] arm up, the arm
                that had the gun in it and that’s when I saw the magazine fall out of
                the gun and it fell down in between the ottoman and the cushion of
                the couch. * * * I pushed him back and I went to the left,
                maneuvered around him and got up off the sofa.

        {¶22} Carol fled the house through a back door in the kitchen. As she fled, she

called 911. A recording of the 911 call was played for the jury. During the call, Carol

told dispatch: “he tried to shoot me twice with a gun” and “he put the gun right to my

head,” but “he didn’t have any bullets in it.”1 At trial, Carol explained:

                I meant that there was no bullets [that] came out, I was hysterical, I
                couldn’t figure out what happened. I was so confused all I kept
                thinking is I should be dead, I should be dead. I didn’t know what
                happened.

        {¶23} After returning to the house, Carol recovered the magazine for the police

from between the couch and the ottoman.

        {¶24} In a written statement made immediately after the incident, Carol wrote

that Burry approached her with the gun in his right hand and the magazine in the other

hand and that, at some point, he threw both the gun and the magazine to the ground.

At trial she claimed these statements were not accurate. Carol testified that Burry is

left-handed. She had seen Burry, at one time, put the Beretta in his dresser drawer.

Generally, their guns were kept in a safe in her bedroom unloaded, but with the

ammunition for the guns also kept in the safe.

        {¶25} Rebecca Silverstein, a firearm examiner with the Lake County Crime

Laboratory, analyzed the pistol, the magazine, and the casing recovered from the Burry


1. Carol repeated her belief that the gun did not have bullets in it and/or was not loaded to officers at the
scene, in a written statement, and in a subsequent interview with detectives.


                                                     7
residence. She testified that the Beretta was operable and that the spent shell casing

was fired by this Beretta.     She testified the Beretta could be fired even without its

magazine as long as a bullet was in the chamber.

       {¶26} Silverstein described the difference between the semi-automatic Beretta

being “in battery” and “out of battery.” When in battery, the Beretta is ready to fire: “the

slide of the pistol is completely forward and in line with the front of the frame of the

firearm.” But “[w]hen the pistol is out of battery that slide is slightly * * * out of alignment

with the front of the frame of the firearm thus causing potentially unsafe conditions * * *

if the pistol were to be discharged at that point.” When out of battery, “the hammer

would not make full contact with the back of the firing pin.” For the Beretta Storm, the

slide would have to be “approximately one eighth of an inch” out of alignment for it to be

“out of battery,” meaning that the hammer would fall but the gun would not fire.

       {¶27} Silverstein demonstrated putting the Beretta out of battery by pushing it

against her hand. When this is done, the slide and the barrel (or muzzle) are moved

backwards at the same time. “[T]hrough the design of this firearm,” however, “the barrel

gets to a point where it stops moving with the movement of the slide so then the slide

can continue moving and eject the fire[d] cartridge case.” At the point at which the

barrel stops moving, the hammer can still be released. If the slide is manipulated

beyond this point (independently of the barrel), the trigger will become disengaged and

not operate.

       {¶28} Detective     Gregory     Spakes      of   the   Willowick   Police   Department

photographed the crime scene and logged the items recovered into evidence.                  He

interviewed Carol a few days after the incident during which she stated that she saw the




                                               8
magazine fall from the hand that was not holding the gun and that Bob ran out of the

house after her and she could see a gun in his hand.

       {¶29} The following witness testified on behalf of Burry:

       {¶30} Emanuel Kapelsohn works as a firearm trainer and consultant for a small

corporation he established, the Peregrine Corporation. Kapelsohn testified regarding

the operation of a Beretta PX4 Storm (subcompact) and the effects of the firearm being

out of battery. According to Kapelsohn, when the pistol is one eighth inch (or less) out

of battery, i.e., when the slide is one eighth of an inch out of alignment with the muzzle,

it is still operational and will fire. If the pistol is between one eighth and one quarter inch

out of battery, the pistol would not fire although the hammer is released thereby

producing a “click.” If the pistol is more than one quarter inch out of battery, the pistol

will not fire nor will the hammer be released (the gun will have a “dead trigger”).

       {¶31} The slide can be moved out of battery by manipulating it manually, but the

same result can be had by pushing the pistol against something. In court, Kapelsohn

demonstrated by pushing it against his hand and he testified that, out of court, he

created a “dead trigger” by pushing the pistol against his leg and against his head.

       {¶32} Regarding the possibility of the Beretta being out of battery twice during

the assault on Carol, Kapelsohn stated “it’s possible but it’s extremely unlikely”: “Either

the slide wouldn’t be pushed far enough back and he’d fire the shot or it would be

pushed too far back and there would be no click. * * * It’s a remarkable fluke twice in a

row within a matter of seconds.”

       {¶33} Kapelsohn opined as to what he believed occurred:

              The likely reason that the gun didn’t go off is that it wasn’t loaded. *
              * * Mr. Burry has an unloaded Beretta pistol in his hand and the



                                              9
               magazine in his other hand that has two live rounds of ammunition
               in it. He puts the muzzle of the pistol to Mrs. Burry’s head, pulls the
               trigger and the gun goes click. * * * He then puts the gun to her
               abdomen and pulls the trigger * * *, click again cause it’s not
               loaded, she runs out of the house. Mr. Burry * * * puts [the
               magazine] into the pistol and works the slide to chamber a round of
               ammunition, for whatever reason I don’t know but he loads the
               pistol and then thereafter he decides to unload the pistol so he
               takes the magazine out. * * * [B]y accident, on purpose, whatever
               * * *, he pulls the trigger maybe thinking he’s unloaded the pistol but
               really there is a round still in the chamber, bang, that round goes
               off, it goes through two walls and out of the house.

       {¶34} Kapelsohn further opined to a “reasonable degree of certainty” that if the

pistol were pushed against someone’s forehead with enough force to put it out of

battery that it would leave a mark, “a bruise or abrasion or something like that.”

       {¶35} On September 21, 2017, the jury returned a verdict of guilty to Counts 1

(Attempted Murder), 2 (Attempted Murder), 3 (Felonious Assault), 4 (Felonious Assault),

and 5 (Kidnapping) of the Indictment, all Counts including Firearm Specifications.

       {¶36} On October 25, 2017, a sentencing hearing was held. Prior to sentencing,

the trial court merged all Counts into Count 1 (Attempted Murder). The court ordered

Mr. Burry to serve a prison term of ten years for Attempted Murder and, consecutively,

three years for the Firearm Specification; advised him of mandatory post release control

for a period of five years; and ordered him to pay court costs and the costs of

prosecution.

       {¶37} On October 27, 2017, Burry’s sentence was memorialized in a Judgment

Entry of Sentence.

       {¶38} On November 27, 2017, Burry filed a Notice of Appeal. On appeal, Burry

raises the following assignments of error:




                                             10
         {¶39} “[1.] The trial court violated the defendant-appellant’s state and federal

constitutional rights to fair trial, due process and confrontation when it barred a defense

expert from testifying regarding a key issue, yet allowed the prosecutor to conduct a

demonstration regarding the same issue during closing argument.”

         {¶40} “[2.] The trial court erred to the prejudice of the defendant-appellant when

it denied his motion for acquittal made pursuant to Crim.R. 29(A).”

         {¶41} “[3.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.”

         {¶42} “[4.] The trial court erred by sentencing the defendant-appellant to a

thirteen-year prison term.”

         {¶43} Burry raises two arguments under his first assignment of error. The first

argument is that the trial court erred by sustaining the State’s objection to the defense

expert, Kapelsohn, testifying regarding a soft wood experiment conducted prior to trial.

         {¶44} While testifying on redirect examination regarding the issue of whether

pressing the Beretta against Carol’s forehead so as to put the weapon out of battery

would have left a mark, Kapelsohn was asked if he had had “an opportunity to test this

weapon about whether or not it would leave a mark on let’s say a piece of soft wood?”

Kapelsohn answered that he did and began to explain the experiment when the State

objected.     The trial court sustained the objection having determined that, while

Kapelsohn’s expert report contained his opinion that pushing the Beretta against a

person’s forehead would leave a mark, the report did not disclose an experiment with a

piece of wood which, apparently, was conducted after his report was turned over to the

State.




                                             11
       {¶45} Under the Rules of Criminal Procedure, “[t]he defendant shall provide

copies or photographs, or permit the prosecuting attorney to copy or photograph, * * *

[the] [r]esults of * * * experiments or scientific tests.” Crim.R. 16(H)(2).

       {¶46} “If at any time during the course of the proceedings it is brought to the

attention of the court that a party has failed to comply with this rule or with an order

issued pursuant to this rule, the court may order such party to permit the discovery or

inspection, grant a continuance, or prohibit the party from introducing in evidence the

material not disclosed, or it may make such other order as it deems just under the

circumstances.” Crim.R. 16(L)(1). This Rule “vests in the trial court the discretion to

determine the appropriate response for failure of a party to disclose material subject to a

valid discovery request,” and “[r]eversible error exists only where the exercise of such

authority by the trial court constitutes an abuse of discretion.” State v. Wiles, 59 Ohio

St.3d 71, 78, 571 N.E.2d 97 (1991); State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-

966, 986 N.E.2d 971, ¶ 20.

       {¶47} We find no abuse of discretion in the trial court’s decision to prevent the

defense expert from testifying regarding the soft wood experiment. Burry offered no

explanation for the failure to disclose to the State that the experiment had been

conducted.    The issue of whether pushing a pistol against a person’s forehead or

stomach so as to put it out of battery would leave a mark was disputed at trial. The

probative value of conducting an experiment with soft wood as a substitute for the

human body is not immediately apparent. To allow Kapelsohn to testify regarding the

results of such an experiment on redirect, when the State was unaware of either the

methodology or the results of the experiment would have been unfair to the prosecution.




                                              12
        {¶48} The case of State v. Branham, 104 Ohio App.3d 355, 662 N.E.2d 54 (12th

Dist.1995), is comparable.          In Branham, defense counsel had identified an expert

witness in the pretrial discovery statement but did not disclose the details of an

experiment “involving the shooting of arrows into a pig skull stuffed with styrofoam.” Id.

at 361. “Therefore, the trial court confined the expert’s testimony to his expertise as

developed through his experience and precluded testimony based upon the pig skull

experiment.” Id. The court of appeals affirmed, observing that “[t]he trial court excluded

only that expert testimony concerning the pig skull experiment,” while “[a]ll other

testimony by the expert was permitted.” Id. at 362. “Under the circumstances, the

sanction imposed by the trial court is entirely consistent with the Criminal Rules and

does not constitute an abuse of discretion.” Id. Similarly in the present case, the trial

court excluded only Kapelsohn’s testimony regarding an experiment which had not been

included in his expert report.2

        {¶49} Burry’s second argument under the first assignment of error is that the trial

court, while preventing “his expert witness from testifying regarding the results of a test

that was key to his defense,” nevertheless permitted “the prosecut[ing] attorney to

essentially testify and conduct a presentation similar to the one the trial court barred his

expert witness from presenting.” Appellant’s brief at 15.

        {¶50} “Where prosecutorial misconduct is alleged, the court must determine

whether the remarks in closing argument were improper and, if so, whether the remarks

prejudicially affected substantive rights of the defendant.” State v. Phillips, 74 Ohio


2. Burry argues at length in his brief that the trial court misapplied Criminal Rule 16(K) (“[f]ailure to
disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.”). The trial
court did not cite to Rule 16(K) which does not properly apply to the present situation inasmuch as
Kapelsohn did timely disclose his written report to the prosecution, albeit without mention of the soft wood
experiment.


                                                    13
St.3d 72, 90, 656 N.E.2d 643 (1995). “The assessment of whether the permissible

bounds of closing argument have been exceeded is, in the first instance, a discretionary

function to be performed by the trial court.” Pang v. Minch, 53 Ohio St.3d 186, 559

N.E.2d 1313 (1990), paragraph three of the syllabus. “Such determination will not be

reversed on appeal absent an abuse of discretion.” Id.

      {¶51} During closing argument, and over the objection of defense counsel, the

prosecutor demonstrated pointing the Beretta to his head to take it out of battery. He

explained the demonstration to the court as follows:

             By way of argument and by way of demonstrating things that are in
             evidence I’m going to take that loaded pistol and I’m going to take it
             cocked unloaded, I’m going to press it into my forehead and create
             an out of battery situation and we’re going to release and we’ll see
             how long it takes to mark my forehead.

      {¶52} Contrary to Burry’s position, we find that the prosecutor’s demonstration

was not improper. There is no indication in the record that the demonstration was

intended to be testimonial, i.e., by pressing the pistol against his forehead, the

prosecutor was trying to convince rather than prove to the jury that the pistol could be

put out of battery without leaving a mark. The demonstration was theatrical rather than

evidentiary and the prosecutor anticipated that the jury would draw its own conclusions

on the issue based on its own handling of the evidence.

      {¶53} Before the jury, the prosecutor argued:

             Now there is a question about whether or not you press this into
             someone’s forehead and it’s going to cause some sort of injury,
             cause some sort of mark that’s going to be obvious or visible. I’m
             going to do something for you because I mean really you got to
             make a decision how you handle the evidence. * * * But I’d like to
             save you from putting this thing to your own head like I’m about to
             do * * *. I’m not going to know if there is a mark on my head, I’m
             not going to know if it disappears by the time I’m done talking [to]



                                           14
               you. * * * This is a .9 millimeter weapon, you’ll see when you get
               back to the jury room it doesn’t take a lot of force to put that out of
               battery. * * * And I think when you have that weapon back there
               you’ll find that is something because you’re going to be pressing it
               into your head just like I did.

Compare State v. Naples, 94 Ohio App. 33, 114 N.E.2d 302 (7th Dist.1952), paragraph

four of the syllabus (“[i]t is not misconduct resulting in prejudicial error for the

prosecuting attorney in the trial of an accused for assault with intent to kill * * * to refer to

and demonstrate the use of a sawed-off billiard cue on the person of the prosecuting

witness, there being no evidence that such billiard cue was used in the assault * * *,

where such remarks merely constituted the prosecutor’s interpretation of the facts as he

knew them”).

       {¶54} It is worth noting that the Beretta was repeatedly pressed against the

human body to put it out of battery – by Silverstein, by Kapelsohn, and by the

prosecutor3 – during trial but never with the understanding that such demonstration

constituted a scientific test or experiment with evidentiary value.            During his cross

examination, Kapelsohn commented that he still had a mark on his hand forty-five

minutes after using his hand to put it out of battery. The prosecutor commented that his

hand did not have a mark, but recognized that whether a mark is made “depends on the

individual’s biology * * * [and] a million things that neither one of us have any business

talking about with any expertise.”

       {¶55} Lastly, the trial court duly instructed the jury both before and after trial that

the closing arguments of counsel are “designed to assist” the jury in its deliberations but

are not evidence. Pang, 53 Ohio St.3d 186, 559 N.E.2d 1313, at paragraph four of the


3. The prosecutor pushed the Beretta against his hand to put it out of battery during his cross
examination of Kapelsohn after Kapelsohn had made the same demonstration during direct examination.


                                                15
syllabus (“[a] presumption always exists that the jury has followed the instructions given

to it by the trial court”).

        {¶56} Burry also claims the prosecutor improperly held himself out as an expert

by explaining that he had firearms experience from his time in the Marine Corps and

that one of the reasons he was brought on the case was because of his “expertise” in

handling firearms. Appellant’s brief at 13.

        {¶57} The context of these comments readily demonstrates that the prosecutor

was not holding himself out before the jury as an expert witness.                      Both comments

occurred during the voir dire of the jury. In one instance, the prosecutor responded to a

juror’s statement that his experience and knowledge came from the “U.S. Army” with

“that’s my same experience in the Marine Corps.” In the other instance, the prosecutor

mentioned his “expertise” to assure the jury that “we would handle this firearm [the

Beretta] safely” and that “we’re going to follow the safety things that everyone * * * is

taught from the get go.”4

        {¶58} Burry’s final argument under this assignment of error is that the prosecutor

improperly claimed “that the defense expert was ‘tricking’ the jury.” Appellant’s brief at

14. The prosecutor was referring to Kapelsohn’s demonstration of how the Beretta

would not be able to release its hammer (have a “dead trigger”) if it was put a quarter

inch or more out of battery. On cross examination, the prosecutor had Kapelsohn admit

that in order to achieve this result it was necessary for him to tilt his hand and apply



4. Counsel for Burry likewise addressed the issue during voir dire: “I can’t tell you that I’m an expert. I
can tell you that I’m knowledgeable on the subject. I can tell you I’ve been trained. I can tell you I’ve
been to the range. I can tell you I’ve had several hours of shooting range practice and I’ve done the
course and I know the laws associated with the weapons and firing the weapons but are you able to kind
of, can you look at me, can you look at Bob [Burry] the same way you look at Mr. Kaplan [the prosecutor];
what do you guys think? I’m seeing nods, okay.”


                                                   16
pressure to the top portion of the slide to allow it to move independently of the barrel. If

the Beretta is pushed against the hand or other hard surface perpendicularly so that the

slide and barrel moved in unison, the slide would not be able to be pushed so far out of

battery as to disengage the hammer. In other words, when Kapelsohn performed the

demonstration he pushed the Beretta against his hand at an angle and this affected the

result.

          {¶59} In referring to the demonstration during closing argument, the prosecutor

described the demonstration as a “trick”:

                He’s holding his hand trying to push at the top of the slide to create
                the separation so he can get the trigger to go spongy [dead] like he
                showed and manipulated. * * * That’s the problem I had with
                Kapelsohn and the extent that he went to try and cup the barrel and
                push against the slide so he can get the trigger in the position
                because when you’re being fair about it when you’re pushing it [the
                slide and barrel] together like a normal person would be you’re not
                going to get it there [past a quarter inch]. That’s a trick he’s trying
                to pull on you, don’t buy it.

          {¶60} The prosecutor’s characterization of Kapelsohn’s demonstration as a trick

is within the permissible bounds for closing argument. This court has observed that

“[t]here is no requirement that a prosecutor’s language must be neutral in its

characterizations of the evidence or defense strategy.” State v. Novak, 11th Dist. Lake

No. 2003-L-077, 2005-Ohio-563, ¶ 42 (the prosecutor described the defense strategy as

a “whitewash” he was trying to “sell” the jury). In the present case, the prosecutor’s

reference to the demonstration as a trick was no more pejorative (or improper) than was

defense counsel’s comments that “the government has told [Carol] what to say from the

beginning” and “from December 24th, 2016 at approximately 8:30 p.m. this woman’s

been told and coached what to say.”




                                              17
       {¶61} The first assignment of error is without merit.

       {¶62} In his second and third assignments of error, Burry argues that there was

insufficient evidence to support his convictions and that his convictions were against the

manifest weight of the evidence.

       {¶63} The manifest weight of the evidence and the sufficiency of the evidence

are distinct legal concepts. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 44. With respect to the sufficiency of the evidence, “[t]he 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

       {¶64} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “In other words, a reviewing court

asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An

appellate court considering whether a verdict is against the manifest weight of the

evidence must consider all the evidence in the record, the reasonable inferences, the

credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury

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




                                            18
must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

      {¶65} To convict Burry of Attempted Murder it was necessary for the State to

prove, beyond a reasonable doubt, that Burry purposely engaged in conduct that, if

successful, would result in the death of another. R.C. 2903.02(A); R.C. 2923.02. To

convict him of Felonious Assault, it was necessary to prove that he knowingly attempted

to cause physical harm to another.        R.C. 2903.11(A)(2).    And to convict him of

Kidnapping, it was necessary to prove that he, by force, restrained the liberty of another

for the purpose of terrorizing or inflicting serious physical harm on her.            R.C.

2905.01(A)(3).

      {¶66} There is no serious contention that the State failed to present evidence

sufficient to convict Burry of the charges. There was evidence that he held Carol down

and fired a loaded gun at her head and at her stomach. The real issue is whether the

State’s evidence is credible, thus implicating the manifest weight of the evidence.

      {¶67} Burry raises issues with Carol’s credibility, noting that she did not believe

that the pistol was loaded at the time of the incident, did not claim that she had been

held down in her initial statements to the police, and changed her account of events as

to whether Burry held the magazine in his other hand and the number of clicks she

heard when he pulled the trigger. Burry impugns Carol’s credibility by noting that, after

he allegedly threatened her life and the lives of her dogs, she remained on the couch

watching television.

      {¶68} We find Carol’s testimony to be credible, if not wholly consistent. It is

evident that immediately after the assault she was confused as to what had happened.




                                           19
She had no reason for believing that the gun was unloaded other than the fact that it did

not fire. She also struggled with the fact that Burry had never been violent with her

before.

       {¶69} The salient aspects of Carol’s testimony are corroborated by other

evidence. Kyle, who never doubted the Beretta was loaded, confirmed that Burry held

Carol down while pointing the gun at her. Burry suggests that Kyle has also changed

his testimony to conform to the State’s theory of the crime.            But there is no

inconsistency between Carol’s and Kyle’s testimony that she was held down and their

initial statements to the police. That Burry held Carol down is merely an additional

detail that is consonant with the fact that Carol was sitting down on a couch when Burry

put the gun to her head and stomach. He would have to have been standing over her

or be physically on top of her to do this.

       {¶70} It is likewise significant that Carol was able to immediately locate the

Beretta’s magazine between the couch and ottoman, although she was unaware of the

pistol’s location in Burry’s dresser drawer.

       {¶71} Burry emphasizes his expert witness’ testimony that the possibility of the

Beretta being out of battery twice within seconds of the trigger being pulled is extremely

unlikely and that it is more probable that it was not loaded when Burry fired. Burry’s

theory of events, however, is not without its incredible elements. It presupposes Burry

loading the Beretta after he had fired twice at Carol for reasons unknown, chambering a

round, dropping the magazine in the living room, and then moving to his bedroom where

he discharged the weapon. Under this theory, there is no obvious logic or reason

behind Burry’s actions. It fails to account for Carol’s knowledge of the magazine’s




                                               20
location (unless we assume she remained on the couch while Burry actually loaded the

weapon and then waited for him to change his mind and discard the magazine). And it

is inconsistent with Burry’s own explanation of events from Sergeant Hirz’ and Officer

Subkowich’s body cams.

       {¶72} Both parties’ experts essentially agreed that the Beretta would not

discharge if it was more than an eighth of an inch out of battery and that it could be put

out of battery by pressing it against a person’s body. The likelihood of the weapon

being put out of battery by pressing against a person’s forehead and stomach is

especially for the jury to decide inasmuch as the jury was able to physically handle and

manipulate the weapon in addition to witnessing the experts doing so.

       {¶73} On balance, we find that the greater amount of credible evidence supports

Burry’s convictions. The second and third assignments of error are without merit.

       {¶74} In his fourth and final assignment of error, Burry contends that his thirteen-

year aggregate sentence is not supported by the record and is contrary to law.

       {¶75} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b).




                                             21
       {¶76} Where the sentence imposed does “not require the findings that R.C.

2953.08(G) specifically addresses * * *, it is fully consistent for appellate courts to

review those sentences that are imposed solely after consideration of the factors in R.C.

2929.11 and 2929.12 under a standard that is equally deferential to the sentencing

court.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

“That is, an appellate court may vacate or modify any sentence that is not clearly and

convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” Id.

       {¶77} For a first-degree felony, the possible prison terms range from three to

eleven years. R.C. 2929.14(A)(1). The Firearm Specification requires “a prison term of

three years” to be served “consecutively to and prior to the prison term imposed for the

underlying offense.” R.C. 2929.14(B)(1)(a)(ii) and (2)(d); R.C. 2941.145(A).

       {¶78} Burry contends the trial court erred in finding that no factors under R.C.

2929.12(C) existed that made his offense less serious than conduct normally

constituting the offense.     Burry maintains that he showed genuine remorse as

evidenced by his apology to Carol and Kyle at sentencing:

              Carol, I’ve been waiting ten months to tell you how truly sorry I am
              for any pain or suffering I put you through that night. I constantly
              thank God that no one was hurt and killed. There is not a moment
              that I don’t think about that night. It haunts me constantly. I hope
              someday you and Kyle and Todd can find it in your heart to forgive
              me.

       {¶79} The sentencing court did not find Burry’s remorse genuine, or at least a

mitigating factor, in light of Burry’s claim to not remember pointing the gun at Carol:

              I did pick up on the fact that you remember certain aspects [of the
              night’s events] in the presentence report as you related them to the
              probation officer and/or in writing and then indicate that you didn’t



                                            22
                remember most things because you blacked out. So I don’t know
                which way it is. To me it’s of no significance, the likelihood is you’re
                at some point trying to minimize what happened * * *.5

        {¶80} Burry further cites as mitigating factors the fact that he worked for thirty-

five years and led a law-abiding life; the stress of the impending divorce; his age (sixty-

three at the time of sentencing); and his anxiety and depression. The sentencing court

noted that Burry “charged Sergeant Hirz” but Burry claims that, “on the bodycam, it

appears that he was requesting a ‘suicide by cop’” by standing up and telling the officers

to shoot him.

        {¶81} With respect to Burry’s remorse, it has been the position of this court to

“defer to the trial court as to whether a defendant’s remarks are indicative

of genuine remorse because it is in the best position to make that determination.”

(Citation omitted.) State v. Sprott, 11th Dist. Ashtabula No. 2016-A-0066, 2017-Ohio-

1508, ¶ 15. Moreover, even if Burry is deemed to be genuinely remorseful, “the trial

court is not obligated * * * to give any particular weight or consideration to any

sentencing factor.” (Citation omitted.) State v. Pishner, 11th Dist. Portage No. 2017-P-

0004, 2017-Ohio-8689, ¶ 20. Rather, the court has “full discretion to impose a prison

sentence within the statutory range.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-

855, 846 N.E.2d 1, paragraph three of the syllabus; State v. Jones, 8th Dist. Cuyahoga

Nos. 103290 and 103302, 2018-Ohio-498, ¶ 45 (“[s]ince Marcum, a majority of districts

have * * * recognized that appellate review is deferential”) (cases cited).

        {¶82} In the present case, the sentencing court imposed a ten-year sentence,

one year less than the possible maximum sentence for a first-degree felony. The court

5. It is worth noting that from the moment Burry was subdued by police (before the ability to recall events
was an issue) he denied that he had discharged a firearm and, when this claim became untenable,
claimed to have discharged the weapon accidently without ever having pointed it at Carol.


                                                   23
emphasized the psychological harm/“torment” suffered by Carol and Burry’s

responsibility for causing the situation that evening (“you knew that taking that

medication and mixing it with not only alcohol but a lot of alcohol * * * was a combination

that wasn’t going to result in anything good”). The court recognized Burry’s lack of a

criminal record and several letters of support received from friends and family but

concluded, ultimately, “I don’t know how you get beyond the fact that other than that gun

not going off because of the slide because it was out of battery [Carol] wouldn’t be here

and you’d be in a whole different stretch of years that I would be considering right now.”

       {¶83} In light of the foregoing we cannot conclude that the record does not

clearly and convincingly support the sentence imposed.

       {¶84} The fourth assignment of error is without merit.

       {¶85} For the foregoing reasons, Burry’s convictions and sentence in the Lake

County Court of Common Pleas is affirmed. Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




                                            24
