State v. Given

[Cite as State v. Given, 2016-Ohio-4746.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, ) CASE NO. 15 MA 0108
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
JEROME GIVEN, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 2014 CR 913

JUDGMENT: Affirmed and Remanded.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Richard Hura
9 East Park Avenue
Columbiana, Ohio 44408

JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro

Dated: June 30, 2016
[Cite as State v. Given, 2016-Ohio-4746.]
ROBB, J.

{¶1} Defendant-Appellant Jerome Given appeals from his conviction entered
in Mahoning County Common Pleas Court for two counts of aggravated assault. Four
assignments of error are raised in this appeal. In his first assignment of error,
Appellant argues there was a hearsay violation at trial. In his second assignment of
error, he asserts the trial court should have sua sponte granted a mistrial when a
juror engaged in improper communication with a state’s witness. The third
assignment of error raises a manifest weight of the evidence argument. In his fourth
assignment of error, Appellant argues the guilty verdicts for aggravated assault are
inconsistent with the not guilty verdicts for the attendant gun specifications.
{¶2} For the reasons expressed below, all assignments of error lack merit.
The conviction and sentence are affirmed.
Statement of the Facts
{¶3} On July 11, 2014, an altercation occurred between Appellant and
Charles Pete outside Appellant’s house located on Compton Lane in Youngstown,
Ohio. Charles was shot twice.
{¶4} The undisputed evidence shows Charles was on his way to pick up his
girlfriend, Melissa Thomas, from work. Melissa is Appellant’s ex-girlfriend and they
have two children together. Charles admittedly had a few drinks prior to going to pick
up Melissa.
{¶5} Charles drove past Compton Lane, which is a street that ends in a cul-
de-sac. He saw Melissa’s youngest child playing outside of Appellant’s house and
decided to stop, say hi, and talk to Appellant about their relationship. Appellant and
Melissa were in a custody dispute over the children. Charles wanted to let Appellant
know that there should not be problems between Appellant and Charles. Charles
went down to the cul-de-sac, turned around, and stopped his vehicle in front of
Appellant’s house. Upon exiting the car, he left the car running and the driver’s door
open. Tr. 149, 298.
{¶6} At this point Charles’ version of what occurred and Appellant’s version
of what occurred diverge.
 -2-

{¶7} According to Charles, he walked up the driveway, said hi to Melissa’s
son, and spoke to Appellant. Tr. 134. He allegedly told Appellant there should not
be problems between them because he loved the kids and Melissa. Tr. 134. At that
point, Appellant told the child to go into the house. Tr. 134. Charles claimed
Appellant said “I got you now mother-f****r,” pulled a gun from his person, and hit
Charles in the head with a gun. Tr. 135. [asterisks added to omit profanity.] Charles
stated he attempted to leave when Appellant shot him in the left side of his back; his
back was turned to Appellant and he was walking to the vehicle. Tr. 137-138.
Charles got in the car and heard another gun shot. Tr. 139. He was shot twice. Tr.
139. Charles drove to the hospital and was in the hospital for three weeks; he was in
a medically induced coma for a week.
{¶8} According to Appellant, the above version of events is inaccurate. He
claimed that upon exiting the vehicle, Charles said to him, “You b***h a**, whore a**,
mother-f****r curly top a** n****r. I’m going to whoop you’re a** like I whoop your
son’s a**.” Tr. 299-300. [asterisks added to omit profanity.] Appellant stated he
could tell Charles was on something by the look in his eyes. Tr. 299. In response to
the statements, Appellant admitted he punched Charles in the jaw. Tr. 300. Charles
went back to his vehicle and got a gun. Tr. 301. There was a struggle over the gun
and a shot went off. Tr. 301. Appellant claims they were still struggling over the gun
when Charles got into the vehicle. Tr. 301. Charles stomped on the gas and dragged
Appellant up the street; Appellant was hanging onto the driver side door that was still
open. Tr. 301-302. Appellant fell off of the vehicle before it reached the end of the
street.
{¶9} After the incident, Appellant got his children and wife, who were in the
house, and left town; they went to a hotel in Akron. Appellant testified he was scared
for their safety because Charles indicated he had friends in the neighborhood.
{¶10} Following an investigation into the matter, Appellant was indicted for
attempted murder, in violation of R.C. 2903.02(A)(D) and R.C. 2923.02(A), a first-
degree felony; two counts of felonious assault, in violation of R.C. 2903.11(A)(1)(D)
and R.C. 2903.11(A)(2)(D), both second-degree felonies; and having a weapon
under disability, in violation of R.C. 2923.13(A)(2)(B), a third-degree felony. The
 -3-

attempted murder and felonious assault charges each contained attendant firearm
specifications, a violation of R.C. 2941.145(A).
{¶11} The first three charges were tried to a jury. The fourth charge, weapon
under disability, was tried to the bench.
{¶12} At trial, both Charles and Appellant testified to the above information.
{¶13} Officers that investigated the incident also testified. They found a
revolver sticking out of the driver’s seat headrest. Tr. 202, 213, 221. Three spent
casing and three live rounds were in the revolver. Tr. 215-216. A bullet path from
the driver’s seat headrest to the front passenger seat was found with a bullet being
removed from the front passenger seat. Tr. 213. There were scratches on the
driver’s side doors, and one officer testified Appellant looked like he “swimmed
across the pavement.” Tr. 219-220, 263.
{¶14} An expert from BCI testified about DNA found on the aforementioned
revolver. DNA found on the trigger was not sufficient for comparison. However, DNA
taken from the remainder of the gun was consistent with Appellant’s DNA profile. He
could not be excluded; his rate of inclusion was 1 in 22,000 people. Tr. 246. Charles
was found to be inconclusive as a contributor. This meant there was data present
consistent with his DNA profile, but not in a high enough amount that it could be
found to be an inclusion. Tr. 242. There was also DNA from an unknown profile that
was sufficient for comparison. Tr. 241.
{¶15} Melissa Thomas testified at trial, about a conversation she had with
Daralynn Cooper. Tr. 171-175. Daralynn Cooper witnessed the event and relayed
the events to Melissa while it was happening. Melissa, over objections, relayed that
conversation to the jury; Daralynn Cooper did not testify at trial. Melissa also testified
she had seen Appellant with that revolver years before when they were living
together. Tr. 190.
{¶16} Christine Given, Appellant’s wife, also testified. She stated she had not
seen a gun in their home. Tr. 330.
{¶17} The jury returned a not guilty verdict on attempted murder. The jury
also found Appellant not guilty of the felonious assault charges. However, the jury
found him guilty of the inferior degree offenses, aggravated assault, in violation of
 -4-

R.C. 2903.12(A)(1)(B) and R.C. 2903.12(A)(2)(B), fourth-degree felonies. It did not
find him guilty of the attendant firearm specifications. 5/22/15 J.E. The trial court
found Appellant not guilty of having a weapon under disability. 5/22/15 J.E.
{¶18} The two aggravated assault convictions merged for purposes of
sentencing. Appellant received a 15 month prison term. It is noted in the sentencing
judgment entry, the trial court indicated Appellant was being sentenced for violating
R.C. 2903.12(A)(1)(B) and R.C. 2903.12(A)(1)(B). 7/9/15 J.E. This statement was
clearly a clerical error; the judgment entry journalizing the jury verdict, the jury
verdicts and the court’s statements at sentencing indicate Appellant was found guilty
of R.C. 2903.01(A)(1)(B) and R.C. 2903.12(A)(2)(B) and was being sentenced for
those convictions. 5/22/15 J.E; 5/15/15 Jury Verdicts; 7/1/15 Sentencing Tr. 13.
{¶19} Appellant timely appealed raising four assignments of error.
First Assignment of Error
“The trial court erred when it admitted the hearsay statements of Daralynn
Cooper through the testimony of witness Melissa Thomas.”
{¶20} This assignment of error addresses Melissa’s testimony relaying the
conversation she had with Daralynn Cooper. The testimony is as follows:

I got a text from Daralynn Cooper?

Q. Who’s Daralynn Cooper?

She’s my friend that lives on Compton.

***

Q. Do you know where she lives in relationship to Jerome?

A. She stay [sic] like three houses in between them.

***

Q. I’m not asking you what was in the text; but after you received the
text, what happened?

A. I called Daralynn.
 -5-

***

Q. Was the conversation a normal conversation that you and her would
have?

A. It was more excitement in the conversation.

Q. Who was excited?

A. Daralynn.

Q. Describe what you mean by her excitement.

A. Just her voice. She was just like something was wrong.

Q. Okay. Did she tell you what was wrong?

A. Yes.

Q. What did she tell you?

Mr. Zena [Counsel for Appellant]: Objection.

The Court: Overruled.

A. She said Charles was on the street.

Q. Did you respond to that?

A. Yes.

***

Q. Okay. What was the conversation after that?

Mr. Zena: Objection, Your Honor.

The Court: Let me see counsel.
 -6-

(WHEREUPON, a discussion was had among court and
counsel off the record and out of the hearing of the jury and court
reporter, after which the proceedings continued as follow:)

The Court: Objection is overruled, however, the court will make
note that the objection is going to be continuing.

***

Q. During this time did Daralynn tell you what was happening?

A. Yes, she did.

Q. After she yelled Charles’ name a couple of times and Daralynn’s
boyfriend spoke, did she tell you what happened after that?

A. Yes, she did.

Q. What did she say?

A. She said, oh, my God, he hit him in the face with a gun.

Q. How did you respond?

A. I said, who hit who with the gun?

Q. And?

A. She said Jerome hit Charles with the gun.

Q. Did she tell you what happened after that?

A. Immediately after she said, oh, my God, he shot him.

Q. And what did you say?

A. I said, who shot who? What’s going on? And she said, Jerome shot
Charles.

Q. Did she continue to tell you what happened?
 -7-

A. Yes. I heard tires screeching; and she said oh, my God, he
wrecked your car.

Q. Okay. How did you respond to that?

A. And I just said, oh, my God.

Q. Did she continue to tell you what was happening?

A. Seconds later she asked, are you okay? And I asked, who was she
talking to. She said Jerome.

Q. Okay. Did you continue to have a conversation with her?

A. I asked her to go find Charles, and I hung the phone up.

Tr. 171-175.
{¶21} In reviewing the above testimony, Appellant objected to the testimony
and lodged a continuing objection. However, the basis for the objection is not on the
record. The transcript indicates the objection discussion occurred off the record.
Therefore, it is unclear whether the objection was based on hearsay, the
Confrontation Clause, both, or for some other reason.
{¶22} In the appellate brief, Appellant argues this testimony should not have
been allowed; it is hearsay and does not fall within any exception. Specifically,
Appellant claims it cannot be a present sense impression due to lack of
trustworthiness.
{¶23} The state counters, arguing the testimony does not violate the
Confrontation Clause because Daralynn’s statements were nontestimonial and the
testimony falls within the hearsay exceptions of excited utterance and present sense
impression.
A. Hearsay
{¶24} Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Hearsay is generally not admissible, except as provided by
the United States or Ohio Constitutions, by statute, or court rule. Evid.R. 802. We
 -8-

review a trial court's evidentiary rulings for an abuse of discretion, provided an
objection is made at trial. State v. Mauldin, 7th Dist. No. 09-MA-82, 2010-Ohio-4192,
¶ 70.
{¶25} Under Evid.R. 803, present sense impressions and excited utterances
are not excluded by the hearsay rule, even though the declarant is available as a
witness.
{¶26} A present sense impression is defined as, “A statement describing or
explaining an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.” Evid.R. 803(1).
{¶27} An excited utterance is defined as “A statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Evid.R. 803(2). For a statement to be admissible
as an excited utterance, four prerequisites must be satisfied: (1) the occurrence of an
event startling enough to produce a nervous excitement in the declarant; (2) a
statement made while still under the stress of excitement caused by the event; (3) a
statement related to the startling event; and (4) the declarant's personal observation
of the startling event. In re S.H.W., 2d Dist. No. D44918, 2016-Ohio-841, ¶ 20, citing
State v. Taylor, 66 Ohio St.3d 295, 300–301, 612 N.E.2d 316 (1993).
{¶28} The above testimony indicates Daralynn’s statements qualify as an
excited utterance or a present sense impression. Melissa indicated Daralynn was
giving her personal observations of the altercation between Appellant and Charles
contemporaneously with the altercation. Melissa also testified Daralynn sounded
excited during the conversation. The altercation qualifies as a startling event; it was
a fight between two men in the street, in a residential area, and a gun was present.
{¶29} The Second Appellate District has explained statements uttered at the
time of the event or in close proximity to the event are an indication of the
trustworthiness of the statements:

The excited utterance and present sense impression exceptions to the
definition of hearsay reflect “an assumption that statements or
perceptions that describe events uttered during or within a short time
 -9-

from the occurrence of the event are more trustworthy than statements
not uttered at or near the time of the event. Moreover, the key to the
statement's trustworthiness is the spontaneity of the statement, either
contemporaneous with the event or immediately thereafter. By making
the statement at the time of the event or shortly thereafter, the minimal
lapse of time between the event and statement reflects an insufficient
period to reflect on the event perceived—a fact which obviously
detracts from the statement's trustworthiness.” (Internal citations
omitted.) State v. Crowley, 2d Dist. Clark No.2009 CA 65, 2009–Ohio–
6689, citing State v. Travis, 165 Ohio App.3d 626, 2006–Ohio–787, 847
N.E.2d 1237, ¶ 35 (2d Dist.).

State v. Norris, 2d Dist. No. 26147, 2015-Ohio-624, ¶ 11.
{¶30} Appellant contends close proximity in time is not the only indication of
trustworthiness. He asserts the person to whom the statement is made must also be
able to verify the statement to be true to show trustworthiness. In making this
argument, Appellant references a staff note to Evid.R. 803(1), which states:

The circumstantial guaranty of trustworthiness is derived from the fact
that the statement is contemporaneous and there is little risk of faulty
recollection, and it is made to another who is capable of verifying the
statement at the time it is made. There is no requirement that the
statement be made under the influence of an emotion or trauma and it
is limited to observations about the event that is taking place. The rule
is identical to Federal Evidence Rule 803(1) except for the additional
provision that the trial court may exclude such statements if the
circumstances under which the statement was made indicate a lack of
trustworthiness. The discretion vested in the trial judge is for the
purpose of narrowing the availability of this exception.

Evid.R. 803 (1980 staff notes).
{¶31} In 1991, the Sixth Appellate District referenced the above note when a
statement was made to an individual who was not capable of verifying the statement
 -10-

at the time it was made since the individual was not present. State v. Williams, 6th
Dist. No. L-90-175, 1991 WL 156545 (Aug. 16, 1991). The Williams Court provided
the following explanation:

“[T]he Ohio rule explicitly permits the exclusion of a statement that
would otherwise qualify as a present sense impression if the
‘circumstances indicate a lack of trustworthiness.’ * * *

“One of the guarantees of trustworthiness upon which the present
sense impression exception is based is verification. For example, the
following statement appears in the second edition of McCormick:

“[T]he statement will usually have been made to a third party [the
person who subsequently testifies to it] who, being present at the time
and scene of the observation, will usually have an opportunity to
observe the situation himself and thus provide a check on the accuracy
of the declarant's statement (McCormick, Evidence § 298, at 710 (2d
ed. 1972)).

“But if the witness (the third party) heard the statement but did not
perceive the event, this safeguard is not present. The ‘lack of
trustworthiness' clause was intended to protect against this possibility.”

Id., quoting Giannelli, Ohio Evidence Manual, Article VIII Hearsay, at 42 (1982).
{¶32} The appellate court found the trial court abused its discretion in
admitting the hearsay statement for two reasons. Id. One, the statement was not
made to an individual capable of verifying the accuracy of the statement. Id. Two,
the statement was not made in close proximity of time to the perceived event. Id.
{¶33} Despite that reasoning and the staff note, courts have not relied on the
verification of the accuracy of the statement to determine trustworthiness when the
victim is the person making the statement to a third party who is not able to verify the
accuracy. State v. Wages, 87 Ohio App.3d 780, 788, 623 N.E.2d 193 (8th Dist.1993)
(“The statement made by the victim was made as she was perceiving the appellant
driving up her driveway. The requirement of the circumstantial guarantee of
 -11-

trustworthiness is met by the very nature of the victim's comment, despite the
appellant's contention that the victim's observation needed to be independently
verified.”). Likewise, the verification of accuracy of the statement is not used to
render 911 calls inadmissible since the 911 operator cannot verify the accuracy of the
statement. Rather, 911 calls are usually considered admissible as either an excited
utterance or a present sense impression. Norris, 2015-Ohio-624 at ¶ 12.
{¶34} In the situation before us, Appellant argues the statements lack
trustworthiness because Melissa could not verify what Daralynn was telling her was
true. Appellant asserts Melissa has incentive to fabricate the conversation with
Daralynn to support Charles’, her boyfriend, version of events. This is not a situation
where a 911 operator, who is an independent third party, is hearing statements of a
present sense impression or excited utterance. This court understands Appellant’s
point. However, the jury was in the best position to access Melissa’s credibility. It
could have chosen to disbelieve all, part or none of her testimony. Kranek v.
Richards, 7th Dist. No. 11 JE 2, 2011-Ohio-6374, ¶ 26, citing State v. Jackson, 86
Ohio App.3d 29, 33, 619 N.E.2d 1135 (4th Dist.1993). Furthermore, it was within the
trial court’s discretion to determine whether the facts of this case indicated the
statements lacked trustworthiness. Considering that standard, we hold the trial court
did not abuse its discretion in allowing the testimony.
{¶35} That said, even if we found the trial court abused its discretion in
permitting the hearsay statements to be admitted at trial, the inquiry does not end.
Hearsay is subject to the harmless error doctrine. State v. Hawk, 10th Dist. No.
12AP-895, 2013-Ohio-5794, ¶ 50; Williams, 6th Dist. No. L-90-175, 1991 WL 156545.
Error is harmless beyond a reasonable doubt when the remaining evidence
constitutes overwhelming proof of the defendant's guilt. State v. Williams, 38 Ohio
St.3d 346, 349–50, 528 N.E.2d 910 (1988).
{¶36} Here, any error would be considered harmless. Melissa’s testimony as
to what Daralynn saw during the altercation was not the only testimony indicating
what occurred during the altercation. Charles testified Appellant hit him in the head
with the gun and Appellant shot him in the left side of his back while he was going to
his vehicle. Tr. 135, 137-138. An expert from BCI testified DNA taken from the gun
 -12-

was consistent with Appellant’s DNA profile; his rate of inclusion was 1 in 22,000
people. Tr. 246. As to whether Charles’ DNA was found on the gun, the expert
testified there was data present consistent with his DNA profile, but not in a high
enough amount that it could be found to be an inclusion. Tr. 242. The investigating
officers also testified. They confirmed the revolver used in the shooting was found by
the officer sticking out of the driver’s seat headrest and it contained three spent
casing and three live rounds. Tr. 202, 213, 215-216, 221. Likewise, although
Appellant testified he was never in control of the firearm, he did indicate that during
the struggle over the gun, the gun went off. Tr. 301. Consequently, there is evidence
other than Melissa’s conversation with Daralynn that Appellant caused injury to
Charles. Any hearsay error amounted to harmless error.
B. Confrontation Clause
{¶37} Prior to discussing the Confrontation Clause, it is noted Appellant does
not argue a Confrontation Clause violation. His argument solely focused on hearsay
and whether Daralynn’s statements fall within a hearsay exception. The state is the
party raising the Confrontation Clause and asserting there is no violation. While this
court could decline to address the Confrontation Clause because it was not raised by
Appellant, the following analysis is provided.
{¶38} A de novo standard of review is applied to a claim that a criminal
defendant's rights have been violated under the Confrontation Clause. State v.
Barnette, 7th Dist. No. 11 MA 196, 2014-Ohio-5673, ¶ 26.
{¶39} The Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted
with the witnesses against him.”
{¶40} In Crawford v. Washington, the United States Supreme Court held the
Confrontation Clause bars “admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.” 541 U.S. 36, 53-54, 124 S.Ct. 1354 (2004)
{¶41} The Confrontation Clause's protections are only invoked to bar the
admission of out-of-court statements that are “testimonial.” State v. Muttart, 116 Ohio
St.3d 5, 875 N.E.2d 944, 2007–Ohio–5267, ¶ 59. 2. “In determining whether a
 -13-

statement is testimonial for Confrontation Clause purposes, courts should focus on
the expectation of the declarant at the time of making the statement; the intent of a
questioner is relevant only if it could affect a reasonable declarant's expectations.”
State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph two
of the syllabus. This is an objective witness test; a statement is testimonial where a
reasonable person would anticipate that his or her statement would be used “against
the accused in investigating and prosecuting the crime.” State v. Jones, 135 Ohio
St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 161; United States v. Cromer, 389 F.3d
662, 675 (6th Cir.2004).
{¶42} Even though a hearsay statement may fall within an Evid.R. 803
exception to hearsay, it may nonetheless be inadmissible as a violation of the
Confrontation Clause. State v. Siler, 164 Ohio App.3d 680, 2005–Ohio–6591, 843
N.E.2d 863, ¶ 49.
{¶43} Multiple courts have concluded that statements made to friends are
nontestimonial. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677 at ¶ 162-164 (statement
from declarant to friend. Declarant did not call the police until after she told a friend
what husband (defendant) had told her.); State v. Smith, 5th Dist. No. 2012CA17,
2013-Ohio-1226, ¶ 26-27 (statements from voicemail days before event); State v.
Zadar, 8th Dist. No. 94698, 2011-Ohio-1060, 2011 WL 826271, ¶ 38 (statements to a
friend and a therapist not testimonial under “objective witness” test); State v.
Burnham, 7th Dist. No. 09MA82, 2010-Ohio-3275, ¶ 23 (witness called friend to find
out name of person who assaulted witness’ husband); State v. Peeples, 7th Dist. No.
07 MA 212, 2009-Ohio-1198, 2009 WL 737922, ¶ 31 (statement to a friend not
testimonial because objective witness would not reasonably believe that the
statement would later be used at trial); State v. Harris, 7th Dist. No. 08 JE 39, 2009-
Ohio-6804, ¶ 49 (The victim's statements to her best friend prior to her murder were
not testimonial. There was no indication the victim reasonably believed the shared
confidences regarding her black eye and her wish to leave appellant would be
available for later use at trial.). When statements are made for the primary purpose of
telling a friend, they are not made to aid in the prosecution or as the result of an
 -14-

interrogation. Smith at ¶ 26; State v. Ray, 189 Ohio App.3d 292, 2010-Ohio-2348,
938 N.E.2d 378, ¶ 42-43 (8 Dist.2010).
{¶44} Since the statements by Daralynn were made to her friend Melissa,
there is no indication they were made to aid in the prosecution. Melissa testified
Daralynn called her to inform her that Charles was on the street. Once Charles did
not leave, Daralynn informed Melissa what was occurring. This is merely a
conversation between friends.
{¶45} Therefore, there is no violation under the Confrontation Clause.
C. Conclusion
{¶46} This assignment of error is meritless. The trial court did not abuse its
discretion in allowing the hearsay testimony. However, even if it did, such error
would amount to harmless error. This court also finds there is no Confrontation
Clause violation.
Second Assignment of Error
“The trial court erred when it failed to grant a mistrial when a juror engaged in
improper communication with the state’s witness.”
{¶47} After the jurors began deliberations, one of the jurors had improper
communications with a witness, Detective/Sergeant Lambert. This was brought to
the court’s attention and the following occurred:

(WHEREUPON, eleven of the jurors left the courtroom and Juror
No. 9, Angela M. Madeline, remained in the courtroom, and the
proceedings continued as follows:)

The Court: We are not trying to single you out, but it is my
understanding –

Juror Madeline: I did. I did. I talked to him this morning.

The Court: Can you tell us exactly what was said?

Juror Madeline: I just asked him what if you guys got the wrong
person, will charges be brought to, pretty much, Charles Pete. And I
 -15-

said, well, of course, my big mouth, I said, I kind of feel that you got the
wrong person. So, yes, I did say something to him this morning.

Mr. Zena: All right.

The Court: Let me see counsel.

(WHEREUPON, a discussion was had among court and counsel off
the record and out of the hearing of Juror Madeline and the court
reporter, after which the proceedings continued as follows:)

The Court: Ma’am, you are going to remain on the jury. However,
during the rest of the deliberations do not make any expression as to
the status of your deliberations or have any conversations about the
case.

Juror Madeline: I’m sorry. I totally understand.

(WHEREUPON, Juror No. 9, Angela M. Madeline, left the
courtroom, and the jury continued deliberating:)

(WHEREUPON, the following proffer was placed on the record by
Atty. Andrews [the state] outside of the hearing of the court,
defense counsel, defendant and the jury as follows:)

Mr. Andrews: Based on what I believe that was Juror Number 9 that
was speaking, Miss Madeline, based on her conversation with
Detective/Sergeant Lambert this morning, which she initiated, the state
would object to her staying on as a juror.

(WHEREUPOON, the proffer concluded.)

Tr. 426-428.
{¶48} This dialog and the state’s proffer indicate the state objected to Juror
Madeline remaining on the jury following an improper communication with Detective
Lambert. However, the record is devoid of any indication Appellant objected to her
 -16-

remaining on the jury or moved for a mistrial based on the alleged improper conduct.
“If a party fails to express dissatisfaction with the trial court's handling of an issue, the
issue is waived in the absence of plain error.” State v. Bunce, 6th Dist. No. L–08–
1237, 2010–Ohio–3629, ¶ 32, citing State v. McKnight, 107 Ohio St.3d 101, 837
N.E.2d 315, 2005–Ohio–6046, ¶ 185. See also State v. Robinson, 1st Dist. No. C-
140043, 2015-Ohio-773, ¶ 23 (indicating cannot rely on objection of co-defendant to
preserve argument for mistrial – with no objection all but plain error is waived).
Therefore, plain error is the appropriate standard of review.
{¶49} In order to establish plain error, Appellant must demonstrate an obvious
error that affected substantial rights “under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002); Crim.R. 52(B).

Under Crim.R. 52(B), [p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the
court. By its very terms, the rule places three limitations on a reviewing
court's decision to correct an error despite the absence of a timely
objection at trial. First, there must be an error, i.e., a deviation from a
legal rule. Second, the error must be plain. To be plain within the
meaning of Crim.R. 52(B), an error must be an obvious defect in the
trial proceedings. Third, the error must have affected substantial rights.
We have interpreted this aspect of the rule to mean that the trial court's
error must have affected the outcome of the trial.

(Internal citations and quotations omitted.) Barnes at 27.
{¶50} The burden is on the party asserting plain error to prove “the outcome
‘would have been different absent the error.’“ State v. Payne, 114 Ohio St.3d 502,
2007–Ohio–4642, 873 N.E.2d 306, ¶ 17, quoting State v. Hill, 92 Ohio St.3d 191,
203, 749 N.E.2d 274 (2001).
{¶51} In the situation before us, it was error for a juror to have a conversation
with a witness. However, the error does not rise to the level of plain error.
 -17-

{¶52} In a case where a state’s witness could not think of the word he wanted
to use during his testimony and a juror supplied that word, an appellate court found
the error did not rise to the level of plain error because it could not be shown the
outcome would have been different. State v. Litten, 9th Dist. No. 26812, 2014-Ohio-
577, ¶ 30-31. Or, in other words, it could not be shown juror misconduct resulted in
an unfair trial. Id.
{¶53} Here, the conversation and inquiry with the court do not show the
outcome would have been different if Juror Madeline had been removed from the jury
or a mistrial was warranted.

[D]ue process does not require a new trial every time a juror has been
placed in a potentially compromising situation. Were that the rule, few
trials would be constitutionally acceptable. The safeguards of juror
impartiality, such as voir dire and protective instructions from the trial
judge, are not infallible; it is virtually impossible to shield jurors from
every contact or influence that might theoretically affect their vote. Due
process means a jury capable and willing to decide the case solely on
the evidence before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such occurrences
when they happen.

State v. Owens, 9th Dist. No. 25873, 2012-Ohio-3667, ¶ 9, quoting Smith v. Phillips,
455 U.S. 209, 217, 102 S.Ct. 940 (1982).
{¶54} It is easy to see why the state objected to Juror Madeline remaining on
the jury; Juror Madeline’s statements indicated she did not believe Appellant
committed the crime. Her thought process, at that point in the deliberations, was
favorable to Appellant. Nothing in the record before us indicates Juror Madeline’s
conversation was relayed to any other jurors or had any impact on other jurors.
Furthermore, her own statements imply Detective Lambert did not respond to her
question. Thus, while her attempt to converse with the witness was improper, the
result of her attempt was benign. Consequently, given the trial court’s admonishment
 -18-

and the actual statements by the Juror, any error in failing to remove the juror or to
grant a mistrial did not amount to plain error.
{¶55} The state asserts this is also invited error and we do not need to
engage in a plain error analysis because invited error waives plain error. Under the
invited error doctrine, “a party is not permitted to take advantage of an error that he
himself invited or induced the court to make.” Davis v. Wolfe, 92 Ohio St.3d 549,
552, 751 N.E.2d 1051 (2001).
{¶56} The state’s assertion that invited error waives plain error is correct.
Faulks v. Flynn, 4th Dist. No. 13CA3568, 2014–Ohio–1610, ¶ 22 (stating that “even
plain error is waived where error is invited”). That said, the record is not clear this
was invited error.
{¶57} The state asserts, “the record demonstrates that Defendant requested
Angela M. Madeline to remain rather than to be excused.” Appellee Brief pg. 20.
That is not a completely accurate statement. The discussions concerning whether or
not Juror Madeline would remain on the jury occurred off the record, outside the
presence of a court reporter. There is no indication, considering on the record
discussions, that Appellant requested Juror Madeline to remain. While it is true
Appellant did not proffer an argument that she should not remain or that a mistrial
should be granted, nothing on the record indicates there was an actual request for
her to remain on the jury. Considering Juror Madeline’s statements, it is possible
Appellant argued against her removal. However, that is an assumption we will not
make. If the state wanted to show the error was invited, the record should have been
supplemented in accordance with App.R. 9.
{¶58} In conclusion, this assignment of error does not have merit. We hold
the error was not invited, and Appellant failed to object to Juror Madeline’s removal or
to move for a mistrial. Therefore, our standard for review is plain error. The juror
misconduct, given the record, does not amount to plain error.
Third Assignment of Error
“The verdicts are against the manifest weight of the evidence.”
{¶59} In addressing a manifest weight of the evidence challenge, this court
must review the entire record, weigh the evidence and all reasonable inferences,
 -19-

consider the credibility of the witnesses, and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the convictions must be reversed and a new trial ordered.
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Weight of the
evidence concerns ‘the inclination of the greater amount of credible evidence, offered
in a trial, to support one side of the issue rather than the other.’” Id.
{¶60} “When there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province
to choose which one we believe.” State v. Dyke, 7th Dist. No. 99–CA–149, 2002–
Ohio–1152. This is because determinations of witness credibility, conflicting
testimony, and evidence weight are primarily for the trier of the facts who sits in the
best position to judge the weight of the evidence and the witnesses' credibility by
observing their gestures, voice inflections, and demeanor. State v. Rouse, 7th Dist.
No. 04–BE–53, 2005–Ohio–6328, ¶ 49, citing State v. Hill, 75 Ohio St.3d 195, 205,
661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus.
{¶61} Granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶62} Appellant asserts the guilty verdicts for aggravated assault are against
the manifest weight of the evidence. His argument focuses on the jury’s not guilty
verdicts on the attendant firearm specifications. He contends aggravated assault
requires the use of a deadly weapon and/or serious physical harm. Since the jury
found him not guilty of the firearm specification, he concludes the element of having a
deadly weapon could not have been found. Appellant did admit to punching Charles
in the jaw, however, there was no evidence this caused serious physical harm. Thus,
he asserts the jury lost its way when it found him guilty of both counts of aggravated
assault.
Appellant was convicted of R.C. 2903.12(A)(1) and (2), which provides:

No person, while under the influence of sudden passion or in a sudden
fit of rage, either of which is brought on by serious provocation
 -20-

occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force, shall knowingly:

(1) Cause serious physical harm to another * * *;

(2) Cause or attempt to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance, as defined in
section 2923.11 of the Revised Code.

R.C. 2903.12(A)(1), (2).
{¶63} He was found not guilty of the attendant firearm specifications as
enumerated in R.C. 2941.145(A). That provision states the offender “had a firearm
on or about the offender's person or under the offender's control while committing the
offense and displayed the firearm, brandished the firearm, indicated that the offender
possessed the firearm, or used it to facilitate the offense.” R.C. 2941.145(A).
{¶64} As previously mentioned, there was testimony at trial that Appellant
shot Charles. Charles testified to that information and claimed the gun was
Appellant’s. Tr. 137-138. Melissa, by relating her conversation with Daralynn, also
avowed to that information. Tr. 174-175. An expert from BCI testified Appellant’s
DNA was not found on the trigger of the gun; there was insufficient DNA for
comparison. DNA taken from the remainder of the gun was consistent with
Appellant’s DNA profile; he could not be excluded and his rate of inclusion was 1 in
22,000 people. Tr. 246.
{¶65} Appellant contended the gun was Charles’ and although there was a
struggle over it, Appellant was never in control of the gun. He, however, did admit
that during the struggle the gun fired. Tr. 301.
{¶66} There was also testimony Appellant either punched Charles in the jaw
or hit him in the head with a gun. Tr. 135. The testimony, however, did not indicate
what injury this caused. The testimony about injury concerned the gunshot wounds.
No medical expert testified and no hospital records showed the extent of the head
injury.
{¶67} Given the evidence, the trier of fact could have found the elements of
aggravated assault. It is undisputed Charles suffered serious physical harm from two
 -21-

gunshot wounds. Furthermore, even if Appellant’s testimony that the gun fired during
a struggle over the gun was believed, this would show he acted knowingly.
“Knowingly” is defined as, “[a] person acts knowingly, regardless of his purpose,
when he is aware that his conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B). One is aware that struggling or fighting
over a gun will probably cause the gun to go off and someone will be injured. See
State v. Stephens, 11th Dist. No. 2001-T-0044, 2002-Ohio-2976, ¶ 29-30 (during
tussle loaded weapon went off and it was determined person acted knowingly).
{¶68} Appellant’s position that the verdicts are against the manifest weight of
the evidence also focuses on the not guilty finding on the firearm specifications; he
contends the verdicts are inconsistent. This argument is raised in the fourth
assignment of error and will be addressed there.
{¶69} For all the above reasons, we hold this assignment of error lacks merit.
The convictions for aggravated assault as enumerated in R.C. 2903.12(A)(1) and (2)
are not against the manifest weight of the evidence. There was evidence, if believed,
that would support a conviction for aggravated assault with a deadly weapon and
aggravated assault causing serious physical harm. Admittedly, the only evidence of
serious physical harm comes from use of the weapon. However, that does not mean
the guilty verdicts are against the manifest weight of the evidence.
Fourth Assignment of Error
“The verdicts are contrary to the law, plain error.”
{¶70} Appellant was found guilty of aggravated assault in violation of R.C.
2903.12(A)(1) and (2). Those provisions, respectively, require serious physical harm
or use of a deadly weapon or dangerous ordnance. The only evidence of serious
physical harm was the gunshot wounds; there was no evidence the punch to the jaw
or hitting him in the head with the gun caused serious physical harm. The only
evidence of a deadly weapon or dangerous ordnance was the firearm. However, the
jury found Appellant not guilty of R.C. 2941.145(A), the attendant firearm
specifications. That provision stated the offender “had a firearm on or about the
offender’s person or under the offender’s control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the offender possessed
 -22-

the firearm, or used it to facilitate the offense.” Appellant argues the guilty verdicts
for aggravated assault are inconsistent with the not guilty verdicts for the attendant
firearm specifications.
{¶71} In support of his position that the verdicts are inconsistent, he cites this
court to our decision in Wright. State v. Wright, 2013-Ohio-1424, 990 N.E.2d 615, ¶
36 (7th Dist.) (majority Donofrio, J. and Vukovich, J.; dissent DeGenaro, J.). In that
case, Wright was convicted of felonious assault in violation of R.C. 2903.11(A)(2),
which provides that no person shall knowingly “cause or attempt to cause physical
harm to another * * * by means of a deadly weapon or dangerous ordnance.” Id. at ¶
30. However, he was found not guilty of the attendant firearm specification. Id. at ¶
31. The majority determined the verdicts were inconsistent and ordered a new trial.
Id. at ¶ 40. In rendering this decision the majority discussed two Ohio Supreme
Court cases, Koss and Perryman.
{¶72} The Ohio Supreme Court’s decision in Koss dealt primarily with whether
expert testimony regarding battered women syndrome was admissible to assist the
trier of fact in determining whether the defendant acted in self-defense. State v.
Koss, 49 Ohio St.3d 213, 551 N.E.2d 970 (1990). The Ohio Supreme Court
determined it could be admissible. Id. at 218. However, in that case the appellant
also argued the jury’s guilty verdict of voluntary manslaughter was inconsistent with
the not guilty attendant firearm specification when considering the evidence. In two
paragraphs of analysis, the Ohio Supreme Court concluded the verdicts were
inconsistent:

The record clearly establishes that the victim died of a gunshot wound
to the head. Appellant testified at trial that she remembers observing
the gun on the nightstand and reaching for it. Although she stated that
she “must have picked” up the gun, she does not remember firing it.
The gun was not positively identified as the murder weapon, but the
bullets remaining in the gun were similar to the type of bullet used to kill
the victim.
 -23-

In view of the evidence which demonstrates that the victim died of a
gunshot wound, we must find that the jury's verdict that appellant was
guilty of voluntary manslaughter but not guilty of having “a firearm on or
about her person or under her control while committing the offense” is
inconsistent. The jury not having found appellant guilty of the gun
specification, the prosecution will not be permitted to retry her on the
specification upon remand.

Id. at 219.1
{¶73} In making this decision, the Ohio Supreme Court does not reference its
earlier decision Perryman. In Perryman, the Court held that the principal charge and
the specification are not interdependent. State v. Perryman, 49 Ohio St.2d 14, 25-26,
358 N.E.2d 1040 (1976). Specifications are considered after and in addition to the
finding of guilt on the principle charge. Id. Therefore, any determination as to the
specification cannot change the finding of guilty on the principal charge. Id.
{¶74} The debate between the majority and dissent in Wright was whether
Koss or Perryman was applicable. Wright, 2013-Ohio-1424 at ¶ 36-38, 54-58. The
majority held the more persuasive view was to follow Koss, in part because it was the
most recent Ohio Supreme Court decision. Id. at ¶ 36-38. The dissent disagreed
and found that Perryman was applicable. Id. at ¶ 56-58.
{¶75} Since our decision in Wright, no other appellate court has adopted or
criticized our decision to apply Koss over Perryman. However, since our decision
appellate courts have followed the rationale in Perryman. State v. Smith, 2d Dist. No.
26116, 2015-Ohio-1328, ¶ 17; State v. Ayers, 10th Dist. No. 13AP-18, 2013-Ohio-
5601, ¶ 24-25 (appellate courts have limited the precedential impact of the Koss
decision to cases involving voluntary manslaughter).

1 The inconsistent verdict ruling in Koss may be considered dicta. At the time Koss was decided the syllabus constituted a part
of the opinion. The syllabus does not set forth a holding on inconsistent verdicts. Rather, the syllabus’ focus is mostly on the
battered women’s defense. The body of the opinion discusses battered women’s syndrome first and sets forth that as a basis
for reversing the trial court’s decision and remanding. The trial court in Koss excluded expert witness testimony regarding
battered women’s syndrome. The Supreme Court reversed and remanded the matter due to that error. Although the Supreme
Court addressed inconsistent verdicts, it was not required to do so. Upon remand of the battered women’s syndrome issue,
Appellant could not be retried for the gun specification because she was found not guilty of that specification. Thus, the Court’s
indication that the verdicts were inconsistent and Appellant could not be retried on the gun specification was superfluous.
 -24-

{¶76} Given the language of Koss and Perryman and the most recent
decisions of our sister districts that have applied Perryman and limited the
precedential value of Koss, we overrule our Wright decision and hold that Perryman
is the more persuasive view when determining, in general, whether the verdict on the
principal charge and the specification are inconsistent.
{¶77} Accordingly, considering Perryman, the verdicts in this case are not
inconsistent. The principal charge of aggravated assault and the gun specification
are not interdependent. Perryman, 49 Ohio St.2d at 25-26. Any determination as to
the specification cannot change the finding of guilty on the principal charge. Id.
{¶78} This assignment of error lacks merit.
Conclusion
{¶79} The assignments of error are meritless. Appellant’s conviction and
sentence are affirmed. However, the case is also remanded for the limited purpose
of entering a nunc pro tunc sentencing entry to a correct a clerical error in the July 9,
2015 sentencing judgment entry. As noted in the recitation of the facts, the trial court
mistakenly stated Appellant was convicted of R.C. 2903.12(A)(1)(B) and R.C.
2903.12(A)(1)(B). 7/9/15 J.E. The judgment entry should indicate Appellant was
convicted of R.C. 2903.12(A)(1)(B) and R.C. 2903.12(A)(2)(B).

Donofrio, P.J., concurs.

DeGenaro, J., concurs.