State v. Hall

[Cite as State v. Hall, 2014-Ohio-2959.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

STATE OF OHIO, : Case No. 13CA3391
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
CARL W. HALL, :
: RELEASED: 06/04/2014
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:

Timothy Young, Ohio Public Defender, and Eric M. Hedrick, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Chillicothe, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

{¶1} Carl Hall appeals his convictions for aggravated murder and possession of

a deadly weapon while under detention. Initially, Hall argues that his conviction for

aggravated murder of a fellow inmate was against the manifest weight of the evidence

because he established that he was acting in self-defense. Specifically, Hall claims that

the other inmate initiated the fight, during the struggle he saw a shank on the ground,

and picked it up only to defend himself. Hall bases his argument on the version of

events he and a fellow inmate described to the jury.

{¶2} However, the state presented evidence to support the conflicting theory

that Hall originally had the shank, i.e. Hall tied a shank to his arm with plastic ties and

brought it into the recreation yard on the morning in question. Based upon those facts

the jury could infer that Hall was the aggressor. As the trier of fact, the jury was free to

believe all, part or none of any witness’s testimony. When conflicting evidence is
Ross App. No. 13CA3391 2

presented at trial, a conviction is not against the manifest weight of the evidence simply

because the jury rejected the defendant’s version of the facts and believed the

testimony presented by the state. Accordingly, this is not a case where the jury clearly

lost its way or created a manifest miscarriage of justice, so we reject Hall’s argument.

{¶3} Hall also complains about the admission of a recorded statement a fellow

inmate, Kimball Kenaga, made three days after the incident. Because Kenaga admitted

to making the prior inconsistent statements during cross-examination, Hall contends

that the trial court improperly admitted the interview for impeachment purposes under

Evid.R. 613(B) in the absence of a proper foundation. However, Hall failed to object

and has waived all but plain error. Our review of the record shows that on cross-

examination Kenaga repeatedly denied that he made prior inconsistent statements

concerning who initiated the fight and whether Williams attempted to retreat. Although

he qualified these denials with possible reasons for any inconsistencies, we reject Hall’s

argument that Kenaga eventually acquiesced to making these conflicting statements to

the state trooper during the interview. And in light of the fact that defense counsel

stated she had no objection to playing the entire interview for the jury, the trial court did

not commit plain error by admitting the interview as extrinsic evidence of Kenaga’s prior

inconsistent statements.

{¶4} Next Hall claims that the trial court erred by admitting Kenaga’s interview

for the limited purpose of impeaching his trial testimony without giving the jury a limiting

instruction that the evidence could not be considered as substantive evidence of his

guilt. However, Hall admittedly did not request such an instruction and therefore our

review is again limited to plain error. Evid.R. 105 instructs a trial court “upon request of
Ross App. No. 13CA3391 3

a party” to “restrict the evidence to its proper scope and instruct the jury accordingly.”

Although a limiting instruction would have been appropriate in this case, in light of the

other evidence produced at trial, we cannot say the outcome would have clearly been

different had the court given such an instruction. So there is no plain error.

{¶5} Hall also claims that he was denied a fair trial and due process of the law

because the prosecutor committed misconduct during closing arguments by referring to

Kenaga’s prior inconsistent statements as substantive evidence. Admittedly, some of

the prosecutor’s statements that Hall points to treated Kenaga’s recorded statements as

substantive evidence and were improper. However in light of the entire case, these

remarks did not prevent Hall from receiving a fair trial. Two of the statements Hall

points to were cumulative to other evidence admitted at trial; another of the prosecutor’s

statements could reasonably be construed as arguing against Kenaga’s credibility,

rather than recounting the interview as substantive evidence. Based on the other

evidence, we cannot say the outcome of trial would have been clearly different but for

the prosecutor’s improper remarks.

{¶6} Additionally, Hall argues that the trial court erred by failing to sua sponte

instruct the jury on duress as an affirmative defense to his possession of a deadly

weapon while under detention charge. However, Hall admits that his trial counsel did

not request such an instruction, nor did he object to the jury instructions given by the

court. Thus, he has again waived all but plain error. Duress, or necessity, is available

when an outside force compels the defendant to use force against another person.

Because the facts presented to the jury did not warrant an instruction on duress, there

was no error, plain or otherwise.
Ross App. No. 13CA3391 4

{¶7} Finally, Hall contends that his trial counsel was ineffective for failing to: 1.)

object to the admission of Kenaga’s recorded interview under Evid.R. 613(B); 2.) object

to the prosecutor’s misconduct during closing arguments; 3.) request a limiting

instruction that Kenaga’s interview was only to be considered for impeachment

purposes; and 4.) request a jury instruction on duress. However, he has failed to show

that he was prejudiced by these alleged errors. We rejected these arguments in his

other assigned errors and found that based the state’s evidence at trial the outcome of

trial would not have been clearly different but for the alleged errors Hall now raises.

Thus, we reject Hall’s argument and affirm his convictions.

I. FACTS

{¶8} Hall, an inmate at the Ross Correctional Institution in Chillicothe, Ohio,

was serving sentences for aggravated murder and kidnapping, as well as felonious

assault. Following a disagreement with fellow inmate Natuan Williams about the sale of

“hooch,” an alcoholic drink made in prison, Williams hit Hall in the head with a

combination lock in a sock.

{¶9} Afterwards both men were placed in segregation, but Hall refused to

identify Williams as his attacker to prison officials and the conflict continued. Williams

sent Hall threatening notes demanding money and coffee. On the morning in question,

Hall was in the recreation yard when Williams approached him. There was a physical

altercation, which ended with Hall stabbing Williams with a shank in the face, neck and

side. Williams died as a result of his injuries.

{¶10} The state indicted Hall with one count each of aggravated murder and

possession of a deadly weapon while under detention. At trial, the state alleged that
Ross App. No. 13CA3391 5

Hall brought the shank to the recreation yard and concealed it on his person by

strapping it to his forearm with two plastic strips made from garbage bags. Williams

approached Hall in the recreation yard and put on gloves, signaling he wanted to fight.

And following a brief conversation, Hall took out the shank and immediately stabbed

him.

{¶11} Hall admitted that he stabbed Williams, but contended that he acted in

self-defense and did not bring the shank into the recreation yard. Rather, he claimed

that Williams initiated the fight by lunging at him with the shank. Hall then knocked the

shank out of Williams’s hand as the two fought. During the struggle, Hall testified that

he picked up the shank from the ground and stabbed Williams in self-defense.

Nevertheless, the jury convicted Hall of both offenses. This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶12} Hall raises six assignments of error for our review:

1. CARL W. HALL WAS DENIED HIS RIGHT TO DUE PROCESS AND A
FAIR TRIAL WHEN THE JURY FOUND HIM GUILTY OF AGGRAVATED
MURDER AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

2. THE PROSECUTOR’S MISCONDUCT DENIED MR. HALL A FAIR
TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF MR. HALL’S
FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE
UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16,
ARTICLE I OF THE OHIO CONSTITUTION.

3. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
DENIED MR. HALL A FAIR TRIAL AND DUE PROCESS OF LAW WHEN
IT PERMITTED THE ADMISSION OF EXTRINSIC HEARSAY EVIDENCE
FOR THE LIMITED PURPOSE OF IMPEACHING A WITNESS
PURSUANT TO EVID.R. 613(B), WITHOUT GIVING THE JURY A
LIMITING INSTRUCTION REGARDING ITS PROPER CONSIDERATION
OF THAT EVIDENCE, AND WHEN IT FAILED TO ADDRESS THE
STATE’S MISCONDUCT IN ASSERTING THE EVIDENCE FOR ITS
SUBSTANCE WHEN ARGUING TO THE JURY, IN VIOLATION OF MR.
HALL’S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS
Ross App. No. 13CA3391 6

UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10
AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

4. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
DENIED MR. HALL A FAIR TRIAL AND DUE PROCESS OF LAW WHEN
IT PERMITTED THE ADMISSION OF EXTRINSIC HEARSAY EVIDENCE
FOR THE LIMITED PURPOSE OF IMPEACHING A WITNESS
PURSUANT TO EVID.R. 613(B) WITHOUT THE REQUIRED
FOUNDATION, IN VIOLATION OF MR. HALL’S FIFTH, SIXTH, AND
FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES
CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.

5. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND
DENIED MR. HALL A FAIR TRIAL AND DUE PROCESS OF LAW WHEN
IT FAILED TO INSTRUCT THE JURY ON DURESS AS A DEFENSE TO
THE CHARGE OF POSSESSION OF A DEADLY WEAPON WHILE
UNDER DETENTION, IN VIOLATION OF MR. HALL’S FIFTH, SIXTH,
AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED
STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF
THE OHIO CONSTITUTION.

6. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN
VIOLATION OF MR. HALL’S RIGHTS UNDER THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.

III. LAW AND ANALYSIS

A. Manifest Weight of the Evidence

{¶13} In his first assignment of error, Hall argues that his conviction for

aggravated murder was against the manifest weight of the evidence because he proved

he acted in self-defense and the state “offered no substantive evidence to rebut” his

defense.

{¶14} When considering whether a conviction is against the manifest weight of

the evidence, we must we must review the entire record, weigh the evidence and all

reasonable inferences and consider the credibility of witnesses. State v. Hunter, 131
Ross App. No. 13CA3391 7

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. However, we must also bear in

mind that credibility generally is an issue for the trier. State v. McKnight, 107 Ohio St.3d

101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 191; State v. Linkous, 4th Dist. Scioto No.

12CA3517, 2013-Ohio-5853, ¶ 70. Accordingly we may reverse the conviction only if it

appears that in its role as the fact-finder and judgment of credibility, the jury “‘clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983). Thus we will exercise our discretionary power to grant a new trial “‘only

in the exceptional case in which the evidence weighs heavily against the conviction.’”

Thompkins at 387, quoting Martin at 175.

{¶15} “Self-defense is an affirmative defense that requires a defendant to prove

three elements by a preponderance of the evidence: ‘(1) the defendant was not at fault

in creating the violent situation, (2) the defendant had a bona fide belief that she was in

imminent danger of death or great bodily harm and that her only means of escape was

the use of force, and (3) that the defendant did not violate any duty to retreat or avoid

the danger.’” State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶

36, quoting State v. Thomas, 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997); R.C.

2901.05(A). The elements of self-defense are cumulative, so “[i]f the defendant fails to

prove any one of these elements * * * he has failed to demonstrate that he acted in self-

defense.” (Emphasis sic.) State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893

(1986).
Ross App. No. 13CA3391 8

{¶16} To support his claim that he established he acted in self-defense, Hall

relies on the version of events he and fellow inmate, Kenaga, described to the jury. At

trial Hall testified that on the morning in question he was working out in the recreation

yard when Williams approached him with “friends” and asked if he “had anything,”

referring to the money and coffee he had previously demanded from Hall. Hall told him

no and Williams walked away. He claimed that Williams began walking back over a

second time while putting on gloves. Hall testified that he was “terrified” because when

a prisoner puts on gloves it’s “a gesture that I’m going to do something to you,” but

admitted that he did not retreat when he saw Williams approaching. Hall testified that

Williams then lunged at him with “something in his hand,” and he “just reacted” by

blocking his hand. During the struggle, Hall saw the shank on the ground, picked it up

and “just swung around.” He and Williams fell to the ground and Williams began

choking him.

{¶17} Hall admitted that after the corrections officers arrived he threw the shank

into the grassy area of the recreation yard. He claimed at that time there were still other

inmates around and he did not want anyone else to use the shank against him.

{¶18} Hall denied having the shank tied to his arm, but admitted he was wearing

the plastic ties on his arm during the fight. He explained that he used the plastic as

“twist ties” to keep insects out of his food packages, however he had forgotten to take

them off that morning before coming into the recreation yard. He also claimed that

there were no corrections officers in the yard and he had no chance to seek assistance

from prison officials after Williams approached him the first time.
Ross App. No. 13CA3391 9

{¶19} Kenaga testified that he was in the recreational yard on the morning in

question and witnessed the fight between Hall and Williams. He stated that initially

Williams called Hall over, and Hall left the group of inmates he was with to speak with

Williams. He testified that thereafter he saw Williams walking towards Hall putting on

gloves and told him that they needed to fight. Hall responded that “you need to leave

this stuff alone,” and then Williams initiated the fight by swinging at Hall.

{¶20} As they began struggling, Kenaga indicated that Hall fell down on the

ground and Williams was “whooping him pretty good,” when “all the sudden” he saw

blood coming from Williams’s neck. The fight continued and at one point, Williams was

choking Hall before the officers separated them.

{¶21} Corrections Officer Darwin Secrest testified on behalf of the state that he

responded to the fight between Hall and Williams on the morning in question. He

testified that there was an officer assigned to the entrance gate of the recreation area

and he was alerted by this officer that was a fight in the recreation yard. He testified

that when he arrived, he saw Hall “kind of standing over” Williams. He instructed the

men to stop fighting and when Hall turned toward him, he saw a shank in his right hand.

Secrest ordered him to drop the shank several times. In response, Hall turned away

and “took his other hand up” and “work[ed] on it,” but because Hall’s back was turned

Secrest could not see exactly what he was doing. Then Hall threw the shank into a

grassy area away from Secrest. Finally after several commands, Hall laid down on the

ground and Secrest attended to Williams.

{¶22} Corrections Officer John Cox testified that on the day in question he

arrived at the scene after Corrections Officer Secrest. When he arrived he saw Williams
Ross App. No. 13CA3391 10

on top of Hall. When Officer Secrest ordered the two men to separate Williams rolled

off Hall and Hall stood up. When he stood up, Cox could see he had a shank in his

hand and eventually threw it several feet away into a grassy area.

{¶23} Corrections Officer Johnny Doughty testified that he was assigned to the

isolation unit and processed Hall after the fight. Doughty stated that during processing,

he observed plastic ties on one of Hall’s wrists and notified the state highway patrol.

{¶24} Sergeant Michael Maughmer of the Ohio State Highway Patrol testified

that on the day in question he was summoned to Ross Correctional Institution to

investigate Williams’s stabbing. He stated that he went to see Hall in isolation and saw

an “extensive” amount of dried blood on his clothing. Sergeant Maughmer also testified

he collected a piece of bloody plastic “that look[ed] like it had been twisted around” from

the floor of Hall’s cell.

Assignment of Error I

{¶25} Hall contends he proved he acted in self-defense, therefore the jury’s

verdict is against the manifest weight of the evidence. However, he confuses meeting

his burden of proof on the affirmative defense with the burden of going forward with

evidence to entitle him to jury instruction on the defense. Hall focuses primarily on the

evidence he introduced to satisfy the three elements explained in State v. Goff, supra.

We concede that he satisfied the burden of going forward and he was entitled to an

instruction on self-defense. In Ohio, a defendant has both the burden of production, i.e.

going forward with evidence, and the burden of persuasion on affirmative defenses.

See R.C. 2901.05(A). He overlooks the fact that the jury was free to believe all, part or

none of any witness’s testimony. State v. Tyson, 4th Dist. Ross No. 12CA3343, 2013-
Ross App. No. 13CA3391 11

Ohio-3540, ¶ 22. Thus, the jury was free to conclude Hall failed to carry his burden of

persuasion.

{¶26} The jury could have discredited Hall’s testimony that he did not bring the

shank with him into the recreation yard and that he used the plastic ties on his wrist as

“twist ties” to keep his food packages closed. Officer Secrest testified that when he

arrived at the scene and ordered Hall to drop the shank he turned away and began

“working on” something on his arm before throwing the shank several feet away. The

state also entered into evidence photographs of twisted plastic found on the floor of

Hall’s cell after the incident. These photos showed bloody pieces of clear plastic tied in

knots with loops on the ends. Based on the state’s evidence, the jury could have

reasonably inferred that Hall used the plastic strips to secure the shank on his wrist prior

to the fight and thus, he was also the aggressor.

{¶27} Hall overlooks the significance of such findings, which reasonably could

have destroyed his credibility and persuasiveness with the jury. Hall was insistent that

he did not bring the shank to the yard. In spite of the fact that such an admission would

not have negated a self-defense theory, Hall was adamant that Williams brought the

shank, rather than him. However, the evidence of the plastic wraps around his forearm

and his efforts to hide the shank after the fight ended could reasonably lead the jury to

believe Hall lied about who originally possessed the shank and who was the initial

aggressor. And if the jury could discredit Hall in that regard, they would be justified in

rejecting all his testimony about the incident, including who created the violent situation.

A rejection of Hall's defense based upon his lack of credibility is consistent with a

reasoned approach to the evidence.
Ross App. No. 13CA3391 12

{¶28} When conflicting evidence is presented at trial, a conviction is not against

the manifest weight of the evidence simply because the jury believed the testimony

presented by the state. Tyson, 4th Dist. Ross No. 12CA3343, 2013-Ohio-3540, at ¶ 21.

Because the jury is in the best position to assess witness credibility by observing their

demeanor, gestures, and voice inflections, we cannot say that this is a case where the

jury clearly lost its way or created a manifest miscarriage of justice. See State v. Grube,

2013-Ohio-692, 987 N.E.2d 287, ¶ 31, 32 (4th Dist.).

{¶29} We also reject Hall’s argument that the state failed to rebut this defense.

Once the state presents a prima facie case, it has satisfied any burden it had to go

forward with evidence. When a defendant presents an affirmative defense there is no

mandatory duty that requires the state to produce rebuttal evidence. Obviously, it may

choose to do so, but the lack of rebuttal evidence is not fatal to the state’s effort to prove

the defendant guilty beyond a reasonable doubt. As apparently happened in this case,

the jury can simply reject the defendant’s defense and find the evidence in the state’s

case-in-chief more persuasive. Accordingly, we reject Hall’s argument and overrule his

first assignment of error.

B. Extrinsic Evidence of Prior Inconsistent Statements

{¶30} Hall’s next three assignments of error surround the admission of Trooper

Sherry Well’s recorded interview with Kenaga. For ease of analysis we will address his

assignments of error out of order.

{¶31} In his fourth assignment of error, Hall contends that the trial court denied

him a fair trial and due process of law by admitting extrinsic hearsay evidence. Hall

argues that in the absence of a proper foundation under Evid R. 613(B), the trial court
Ross App. No. 13CA3391 13

erred by admitting for impeachment purposes recorded statements Kenaga made

during the interview.

{¶32} At trial the state played a recorded statement Kenaga gave to Trooper

Wells three days after the incident. Many of Kenaga’s statements during that interview

conflicted with his testimony at trial, which indicated Hall initiated the incident and during

the struggle Williams “backpedaled” away from Hall, but Hall continued swinging at him

with a knife. Prior to playing the recording for the jury, the court made clear that it was

being offered into evidence under Evid.R. 613 as “extrinsic evidence and prior

inconsistent statements,” and asked if the defense had any objections. Defense

counsel responded that she did not object as long as “we’re playing the whole thing.”

The court replied “[w]e will play the whole thing and I think it’s admissible under Evid.R.

613(B) * * *.” After playing the recording, the court admitted it into evidence without

objection. Thus, the recording was not admitted as substantive evidence, but rather as

a prior inconsistent statement under Evid.R. 613(B). However, because Hall failed to

object to the state playing Kenaga’s interview for the jury, he has waived any purported

foundational error, except for plain error. Crim.R. 52(B); State v. Shahan, 4th Dist.

Washington No. 02CA63, 2003-Ohio-6945, ¶ 9.

{¶33} “For a court to notice plain error, the error must be an obvious defect in a

trial’s proceedings, it must have affected substantial rights, and it must have affected

the outcome of the trial.” State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d

135, ¶ 30. See also Crim.R. 52(B). In other words, plain error is not present unless but

for the error complained of, the outcome of the trial would have clearly been different.

State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). “‘Notice of plain error
Ross App. No. 13CA3391 14

under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” Steele at ¶ 30,

quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

{¶34} Evid.R. 613(B) provides:

Extrinsic evidence of a prior inconsistent statement by a witness is
admissible if both of the following apply:

(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny the
statement and the opposite party is afforded an opportunity to interrogate
the witness on the statement or the interests of justice otherwise require;

(2) The subject matter of the statement is one of the following:

(a) A fact that is of consequence to the determination of the action other
than the credibility of a witness;

(b) A fact that may be shown by extrinsic evidence under Evid.R. 608(A),
609, 616(A), or 616(B);

(c) A fact that may be shown by extrinsic evidence under the common law
of impeachment if not in conflict with the Rules of Evidence.

{¶35} When extrinsic evidence of a prior inconsistent statement is offered into

evidence under Evid.R. 613(B), “‘a foundation must be established through direct or

cross-examination in which: (1) the witness is presented with the former statement; (2)

the witness is asked whether he made the statement; (3) the witness is given an

opportunity to admit, deny or explain the statement; and (4) the opposing party is given

an opportunity to interrogate the witness on the inconsistent statement.’” State v. Mack,

73 Ohio St.3d 502, 514-515, 653 N.E.2d 329 (1995), quoting State v. Theuring, 46 Ohio

App.3d 152, 155, 546 N.E.2d 436 (1988); State v. Schofield, 4th Dist. Washington Nos.

01CA36, 02CA13, 2002-Ohio-6945, ¶ 134. When the proponent lays a proper
Ross App. No. 13CA3391 15

foundation, the evidence does not relate to collateral matters, and the witness denies

making the statement, the proponent may offer extrinsic evidence of the prior

inconsistent statement. Schofield at ¶ 135.

{¶36} Hall contends that the state did not lay a proper foundation because

Kenaga “acquiesced to making the prior inconsistent statements during the interview

with Trooper Wells.” To support his argument Hall points to Kenaga’s testimony on

cross-examination about who initiated the fight and whether Williams attempted to

retreat.

{¶37} The record contains the following exchange between the prosecutor and

Kenaga on cross-examination when asked about his interview with Trooper Wells:

THE STATE: Now, Trooper Wells specifically asked you who swung first.

KENAGA: Okay.

THE STATE: And you told Trooper Wells that Hall swung first.

KENAGA: Well Mr. Hall didn’t swing first.

THE STATE: I didn’t ask you what happened. I asked you what you told
Trooper Wells three days after this happened.

KENAGA: Well maybe something, I got misconstrued or she got
misconstrued. Somebody got misconstrued.

THE STATE: You misconstrued the question of who swung first?

KENAGA: I might have. But I know for a fact Mr. Williams swung first.

THE STATE: You don’t recall telling Trooper Wells that you saw the
stabber swing the other guy first?

***
KENAGA: No, sir.

THE STATE: You don’t recall saying that?
Ross App. No. 13CA3391 16

KENAGA: No, sir. I may have said that, but maybe I misunderstood the
question, or somebody got their wires crossed somewhere because I
know who swung first and it was Mr. Williams who swung first.

THE STATE: When you were asked specifically by Trooper Wells, you
stated that Hall wanted to let it go and the other guy wouldn’t and you saw
Hall swing first. Isn’t that true?

KENAGA: I don’t believe so.

THE STATE: You don’t believe so?

KENAGA: I don’t. If I did it was a misstatement. Or it was misconstrued
because Mr. Williams swung at him first.

***
THE STATE: You testified that you saw this thing from start to finish.

KENAGA: Exactly.

THE STATE: You saw it from start to finish. I’m not talking about when
they ended up on the ground. I’m talking about the start of this altercation.

KENAGA: Right.

THE STATE: And the fact that you told Trooper Wells that you saw Hall
swing first.

KENAGA: I didn’t see Hall swing first.

THE STATE: So your testimony today is whatever you told Trooper Wells
three days after the event was a lie.

KENAGA: No sir, I’m not saying that at all. I’m saying somewhere
somebody got misconstrued, wires got crossed. I’m not saying at all that I
. . . I could have misunderstood that question.

THE STATE: Well the only person that could have got their wires crossed
was you, sir. So, I’m asking you today about you testified to today and
what you told Trooper Wells three days after this happened.

KENAGA: And I can tell you without a doubt that Mr. Williams swung at
Mr. Hall first. He initiated the whole thing. I watched the whole thing.

THE STATE: So if you told Trooper Wells that three days . . .
Ross App. No. 13CA3391 17

KENAGA: It was a misstatement.

THE STATE: It was false. If you told her directly under questioning that
you saw Hall swing first, that was false.

KENAGA: I still don’t think I did.

{¶38} Kenaga also testified on cross-examination about whether Williams

attempted to back away from Hall during the fight:

THE STATE: You told Trooper Wells that the guy that got killed fell down
because he was back pedaling away from Hall, the guy with the knife.
You told Trooper Wells that didn’t you?

KENAGA: I don’t think so.

THE STATE: You don’t think you said that?

KENAGA: Nope. I really don’t. I mean I know what I saw. He was on top
of him and the C.O’s there at the Ross Correctional will tell you he was on
top of Mr. Hall choking him as he was going down.
***

THE STATE: Now you also, let’s get back to this other question. You told
Trooper Wells that you saw the guy with the knife, Hall, swinging at
Williams as Williams was trying to back pedal away.

***

THE STATE: Did you, or did you not tell Trooper Wells that?

KENAGA: Again, if . . . I could have said that. I may have gotten things
misconstrued you know. I’m not going to lie to you, it was an impact
seeing that go down in the first place. It took a little bit of a toll on me
seeing it.

{¶39} Thus, the record reflects that Kenaga repeatedly denied making

statements to Trooper Wells that Hall initiated the fight and that Williams backed away

during the struggle. Although he qualified these denials with possible reasons for any

inconsistencies, we reject Hall’s argument that Kenaga eventually “acquiesced” to
Ross App. No. 13CA3391 18

making these statements to Trooper Wells, especially concerning whether Hall initiated

the fight.

{¶40} Just as important in our view is the fact that defense counsel stated she

had no objection to playing Kenaga’s interview for the jury as long as the state played

the entire recording. A party cannot base plain error on an act it has invited the court to

make. State v. Hicks, 4th Dist. Adams No. 11CA933, 2012-Ohio-3831, ¶ 11. Therefore,

we cannot say the trial court committed plain error by admitting the evidence under

Evid.R. 613(B) as a prior inconsistent statement. We overrule Hall’s fourth assignment

of error.

C. Limiting Instructions

{¶41} In his third assignment of error, Hall argues that the court erred and

denied him a fair trial by admitting Kenaga’s recorded interview for the purpose of

impeaching his trial testimony without giving the jury a limiting instruction that the

evidence could not be considered as substantive evidence of his guilt. However, Hall

admittedly did not request such an instruction and therefore we again review his

argument for plain error. State v. Grant, 67 Ohio St.3d 465, 472, 620 N.E.2d 50 (1993).

{¶42} Evid.R. 613(B), “permits extrinsic evidence of a prior inconsistent

statement only to impeach,” a witness’s credibility. State v. Bethel, 110 Ohio St.3d 416,

2006-Ohio-4853, 854 N.E.2d 150, ¶ 180, 182. When a prior inconsistent statement is

offered for the purpose of impeachment, the jury may consider the prior statement as

substantive evidence if the prior statement is not inadmissible hearsay. State v.

Hammond, 8th Dist. Cuyahoga No. 85001, 2005-Ohio-1852, ¶ 79. Substantive use of a

prior inconsistent statement is covered by Evid.R. 801(D)(1). Under that rule, there are
Ross App. No. 13CA3391 19

limited circumstances in which a prior inconsistent statement is not hearsay and may be

used as substantive evidence, i.e. to prove the truth of the matter asserted in the

statement. Bethel at ¶ 183.

{¶43} Here, we have already determined that the trial court admitted Kenaga’s

recorded interview as extrinsic evidence under Evid.R. 613(B) for the limited purpose of

impeaching his trial testimony. Nevertheless, the state argues that a limiting instruction

was unnecessary because Kenaga’s prior inconsistent statements were also admissible

as substantive evidence under Evid.R. 801(D)(1)(c) as identification of a person soon

after perceiving the event. A prior inconsistent statement is not hearsay if it is “one of

identification of a person soon after perceiving the person, if the circumstances

demonstrate the reliability of the prior identification.” Evid.R. 801(D)(1)(c). However,

the state’s argument is misplaced because Evid.R. 801(D)(1)(c) is not applicable when

the identification of the defendant is not in dispute; here there was no doubt that Hall

was the suspect. See State v. Turvey, 84 Ohio App.3d 724, 743, 618 N.E.2d 214 (4th

Dist.1992) (Evid.R. 801(D)(1)(c) should not be applied in circumstances “where no true

issue exists concerning the identity of the perpetrator”). See also State v. Hess, 5th

Dist. Morrow No. 2009 CA 0016, 2010-Ohio-3692, ¶ 170, fn. 1.

{¶44} “When evidence which is admissible * * * for one purpose but not

admissible * * * for another purpose is admitted, the court, upon request of a party, shall

restrict the evidence to its proper scope and instruct the jury accordingly.” Evid.R. 105.

Although a limiting instruction would have been appropriate in this case, defense

counsel failed to request one. And in light of the other evidence produced at trial, as

noted under Hall’s first assignment of error, we cannot say the outcome of the trial
Ross App. No. 13CA3391 20

would have clearly been different had the court instructed the jury it could only consider

Kenaga’s interview when assessing his credibility. Accordingly, we reject Hall’s

argument and overrule his third assignment of error.

D. Prosecutorial Misconduct

{¶45} In Hall’s second assignment of error, he contends that the prosecutor’s

misconduct during closing arguments denied him a fair trial and due process of law in

violation of his federal and state constitutional rights. Specifically, Hall claims that the

prosecutor erroneously referred to Kenaga’s statements during the interview with

Trooper Wells as substantive evidence and “urged the jury to consider and adopt the

statements for their truth.” And “given the strength of [his] defense,” he claims but for

the prosecutor’s alleged misconduct the trial’s outcome would have been different.

{¶46} “‘The test regarding prosecutorial misconduct in closing arguments is

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

substantial rights of the defendant.’” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-

2577, 971 N.E.2d 865, ¶ 149, quoting State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d

883 (1984). However, Hall failed to object to the prosecutor’s statements during closing

argument and consequently we are limited to plain error review again. Crim.R. 52(B);

Powell at ¶ 151; State v. Boler, 4th Dist. Athens No. 09CA24, 2010-Ohio-3344, ¶ 21.

{¶47} A prosecutor’s conduct cannot be grounds for error unless the conduct

deprived the defendant of a fair trial. State v. Keenan, 66 Ohio St.3d 402, 405, 613

N.E.2d 203 (1993). Thus “[t]he touchstone of the analysis ‘is the fairness of the trial, not

the culpability of the prosecutor.’” Powell at ¶ 149, quoting Smith v. Phillips, 455 U.S.

209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); State v. Marcum, 4th Dist. Gallia No.
Ross App. No. 13CA3391 21

12CA6, 2013-Ohio-5333, ¶ 31. “‘[T]here can be no such thing as an error-free, perfect

trial, and * * * the Constitution does not guarantee such a trial.’” State v. Hill, 75 Ohio

St.3d 195, 212, 661 N.E.2d 1068 (1996), quoting United States v. Hasting, 461 U.S.

499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). Marcum at ¶ 31. “Prosecutors

are granted wide latitude in closing argument, and the effect of any conduct of the

prosecutor during closing argument must be considered in light of the entire case to

determine whether the accused was denied a fair trial.” Powell at ¶ 149. The Supreme

Court of Ohio has cautioned that prosecutorial misconduct constitutes reversible error

only in “‘rare instances.’” Kennan at 405, quoting, State v. DePew, 38 Ohio St.3d 275,

288, 528 N.E.2d 542 (1998); Marcum at ¶ 31.

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

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

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

v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). But “[p]rosecutors must

avoid insinuations and assertions calculated to mislead. They may not express their

personal beliefs or opinions regarding the guilt of the accused, and they may not allude

to matters not supported by admissible evidence.” Lott at 166. Accordingly, a

prosecutor must not assert during closing argument that hearsay evidence admitted for

a limited purpose other than proving the truth of its contents is substantive evidence.

State v. Kirk, 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, ¶ 28, citing State v.

Liberatore, 69 Ohio St.2d 583, 589, 433 N.E.2d 561 (1982).

{¶49} Hall points to the following statements during closing arguments as

evidence of the prosecutor’s misconduct:
Ross App. No. 13CA3391 22

A struggle ensued and these two were flailing about, now when Mr.
Kimball Kenaga was initially interviewed, he pretty clearly says on that
recorded interview that Natuan Williams, or yes, Natuan Williams, the guy
that died, the guy that bled out, was backing away from the stabber. Back
pedaling away and fell down and got back up. As Carl Hall was coming
after him with the shank. That he’d already stuck him with.

***

Now, keep in mind you heard testimony and certainly in the recording of
Kimball Kenaga, that the stabber, which would be Carl Hall, the defendant,
person that he knew fairly well, had a shank in his right hand, like this, it
would strike Mr. Williams in the left side. Which is what the evidence
shows.

{¶50} Hall also points to the prosecutor’s following statements during his rebuttal

argument:

But by his own testimony, even if you were to believe that, Mr. Hall states
that there was a brief exchange of words and that this Natuan Williams
bent towards him and lurched towards him and apparently went to grab a
hold of him. Now he said that he thought there might be something in his
hand. He didn’t testify that he saw something in his hand. He just
reacted. And then they tusseled. And what did he explain to you what
tussling was? Well, we were swinging at each other. And even Kimball
Kenaga said, if you listen to the recording of his testimony, that they were
just basically, looked to him like that they were flailing around. Like neither
one of them could really fight was what he was implying. No disrespect to
the defendant. It’s what he said.

***

Let me talk to you about Kimball Kenaga for a minute. You heard his
testimony yesterday. And you heard me ask him on cross examination, if
he was not being truthful. If he was not now testifying to the, several
things that were completely opposite of what he had testified to or related
just three days after this occurred. And he suggested to you yesterday
and I think again today that, maybe it was just misconstrued, that he
confused the names. Now keep in mind, that he admits and he admits on
that recording, that he knew. He was acquainted with Carl Hall. He wasn’t
mistaken about that. Now, he said he has cholesterol medicines and
found out that he has brain freezes. Well, you can listen to that tape. Did
his brain freeze up at all? You have in evidence that tape that you
listened to yesterday of an interview Kimball Kenaga that took place just
three days after Nautuan Williams was murdered. And there are some
Ross App. No. 13CA3391 23

things that he’s very clear about on that. He’s very clear that there was a
quick verbal exchange. And he’s very clear. He says without prompting
that the stabber, the stabber swung first. He is asked specifically by
Trooper Wells, who swung first. And who does he say? Carl swung first.
The stabber swung first. There are at least three times in that recording
where he very specifically identifies who was the initial aggressor? Carl
Hall. Yeah, I know that guy, Carl Hall. Anyone of you think he was being
honest when he got up here and changed his story? If you need to, please
listen to what he had to say right after this happened. Ask yourself if you
think he was having a brain freeze, or if he was confused about the events
at that time. Or if he was mistaken at all about the identity of who did the
initial stabbing and about who was backing up and trying to get away from
the guy with the shank. He’s very unambiguous about that in that
recording. He does simply say, well, I don’t think Carl should be charged
with murder. One murder to another.

{¶51} Contrary to Hall’s contention, we do not believe that the prosecutor made

Kenaga’s interview “the centerpiece” of his closing argument. Admittedly some of the

prosecutor’s statements improperly alluded to Kenaga’s recorded interview as

substantive evidence, particularly his statement about Williams backing away during the

fight. However in light of the entire case, these remarks did not prevent Hall from

receiving a fair trial. The prosecutor’s statement that Kenaga recalled during the

interview that Hall was holding the shank in his right hand was cumulative, as Officer

Secrest testified to the same thing. His statement that during the interview Kenaga said

Hall and Williams were flailing around was also cumulative because Hall himself

testified they “were all over the place,” “tussling” and “throwing punches.” Moreover, the

prosecutor’s statements during rebuttal recounting the clarity of Kenaga’s recollection

on the recorded interview could be construed as an argument against his credibility, i.e.

Kenaga was not confused as he alleged during cross-examination about Trooper

Wells’s questions. And “isolated comments by a prosecutor are not be taken out of
Ross App. No. 13CA3391 24

context and given their most damaging meaning.” State v. Noling, 98 Ohio St.3d 44,

2002-Ohio-7044, 781 N.E.2d 88, ¶ 94.

{¶52} Hall also points to the fact that the jury requested to listen to Kenaga’s

recorded interview during deliberations as evidence that the prosecutor’s remarks

amounted to plain error. However, this is nothing more than speculation, as the jury

could have just as plausibility requested to listen to the interview to determine Kenaga’s

credibility. Accordingly based on the evidence we already recounted under Hall’s first

assignment of error, we cannot say the outcome of trial would have been different but

for the prosecutor’s improper remarks during closing arguments. Finding no plain error,

we overrule Hall’s second assignment of error.

E. The Affirmative Defense of Duress

{¶53} In his fifth assignment of error, Hall argues that the trial court erred by

failing to instruct the jury on duress as an affirmative defense to his possession of a

deadly weapon while under detention charge. However, Hall admits that his trial

counsel did not request such an instruction, nor did he object to the jury instructions

given by the court. Once again, he has waived all but plain error. See State v.

Alexander, 4th Dist. Adams No. 12CA945, 2013-Ohio-1913, ¶ 27 (failure to object to

trial court’s jury instructions waives all but plain error); State v. Hubbard, 10th Dist.

Franklin No. 11AP–945, 2013-Ohio-2735, ¶ 62 (applying plain error because defendant

failed to request a duress instruction).

{¶54} Duress is an affirmative defense to any crime except aggravated murder,

therefore Hall makes no argument that duress applies to that conviction. See State v.

Getsy, 84 Ohio St.3d 180, 197-198, 702 N.E.2d 866 (1998). When a defendant asserts
Ross App. No. 13CA3391 25

an affirmative defense, “[t]he burden of going forward with the evidence * * * and the

burden of proof, by a preponderance of the evidence * * * is upon the accused.” R.C.

2901.05(A). Thus, “in order for the defendant to successfully raise an affirmative

defense, ‘evidence of a nature and quality sufficient to raise the issue must be

introduced.’ Evidence is sufficient where a reasonable doubt of guilt has arisen based

upon a claim of duress. If the evidence generates only a mere speculation or possible

doubt, such evidence is insufficient to raise the affirmative defense, and submission of

the issue to the jury will be unwarranted.” Getsy at 198-199, quoting State v. Robinson,

47 Ohio St.2d 103, 111-112, 351 N.E.2d 88 (1976).

{¶55} “One of the essential features of the defense of duress is a sense of

immediate, imminent death, or serious bodily injury if the actor does not commit the act

as instructed. * * * The force used to compel the actor’s conduct must remain constant,

controlling the will of the unwilling actor during the entire time he commits the act, and

must be of such a nature that the actor cannot safely withdraw.” Getsy at 199. “It must

be understood that the defense of * * * duress is strictly and extremely limited in

application and will probably be effective in very rare occasions. It is a defense and not

a conjured afterthought.” State v. Cross, 58 Ohio St.2d 482, 488, 391 N.E.2d 319

(1979).

{¶56} To support his claim that the trial court should have sua sponte instructed

the jury on the defense of duress, Hall points to the trial court’s statements during its

consideration of his self-defense instruction. The court stated that Hall “had reasonable

grounds to believe and an honest belief even if mistaken that he was in imminent and

immediate danger” and “testimony * * * indicated that [Hall] was retreating.” He
Ross App. No. 13CA3391 26

contends that these findings demonstrate that he was also entitled to an instruction on

duress. However, we find his argument meritless.

{¶57} Hall confuses duress and self-defense; they are not the same. In self-

defense, the accused uses force against the victim to prevent the victim from harming

the accused. See Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, at ¶

36. In duress the accused uses force against the victim, or commits an illegal act, in

response to coercion or a threat of harm from an outside source. When the source of

the outside force is a person, the defense is duress. See generally, United States v.

Bailey, 444 U.S. 394, 409-410, 100 S.Ct. 624, 67 L.Ed.2d 575 (1980). When the source

is physical or natural, the defense is one of necessity. Id. There is no evidence to

support either theory here, so an instruction on duress was not warranted. See Cross

at 488 (trial court may refuse to give instruction on defense of duress when not

applicable to the evidence).

F. Ineffective Assistance of Counsel

{¶58} In his sixth assignment of error, Hall argues his trial counsel was

ineffective for failing: 1.) to object to the admission of Kenaga’s recorded interview

under Evid.R. 613(B); 2.) to object to the prosecutor’s misconduct during closing

arguments; 3.) to request a limiting instruction that Kenaga’s interview was only to be

considered for impeachment purposes; and 4.) to request a jury instruction on duress.

{¶59} To prevail on an ineffective assistance of counsel claim, the appellant

must show: 1.) counsel’s performance was deficient and 2.) the deficient performance

prejudiced the defense so as to deprive the accused of a fair trial. State v. Drummond,

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v.
Ross App. No. 13CA3391 27

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish

deficient performance, an appellant must show that counsel’s performance fell below an

objective level of reasonable representation. State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. To establish prejudice, an appellant must show

a reasonable probability exists that, but for the alleged errors, the result of the

proceeding would have been different. Id.

{¶60} Here, Hall has failed to show that he was prejudiced by these alleged

errors. He bases his claim of ineffective assistance of counsel on the arguments raised

in his second, third, fourth and fifth assignments of error. However, we have already

rejected these arguments and found that based the state’s evidence, the outcome of

trial would not have been clearly different but for the alleged errors Hall now raises.

And because “[a] defendant’s failure to establish one prong of the Strickland test

negates a court’s need to consider the other,” we find Hall’s argument meritless and

overrule his sixth assignment of error. State v. Madrigal, 87 Ohio St.3d 378, 389, 721

N.E.2d 52 (2000).

IV. CONCLUSION

{¶61} We reject Hall’s argument that his conviction for aggravated murder is

against the manifest weight of the evidence because the jury was free to believe the

state’s witnesses and reject his claim of self-defense. Accordingly, we overrule his first

assignment of error. Likewise, we reject Hall’s argument that his trial counsel was

ineffective because he failed to show he was prejudiced by her performance and we

overrule Hall’s sixth assignment of error. Applying plain error to Hall’s remaining

assigned errors, we cannot say the outcome of trial would have been different but for
Ross App. No. 13CA3391 28

the alleged errors he now complains of and overrule his second, third, fourth and fifth

assignments of error. Accordingly, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Ross App. No. 13CA3391 29

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.