[Cite as State v. Young, 2011-Ohio-2646.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 09 MA 100 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

CURTIS YOUNG, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

 Court, Case No. 07CR1000. 

JUDGMENT: Affirmed in part; Reversed and Remanded 

 in part. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul Gains 

 Prosecuting Attorney 

 Attorney Ralph Rivera 

 Assistant Prosecuting Attorney 

 21 West Boardman Street, 6th Floor 

 Youngstown, Ohio 44503 

For Defendant-Appellant: Attorney John Laczko 

 3685 Stutz Drive, Suite 100 

 Canfield, Ohio 44406 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

 Dated: May 25, 2011 
VUKOVICH, J. 

¶{1} Defendant-appellant Curtis Young appeals after being convicted of 

multiple counts of aggravated murder and sentenced to life without the possibility of 

parole by the Mahoning County Common Pleas Court. Appellant first claims that he 

should not have been tried for two counts which referred to the same fetus and that 

convicting him for the aggravated murder of this fetus violated his Equal Protection 

rights because an individual who performs an abortion on a viable fetus is only 

charged with a fourth degree felony. Appellant then argues that the court should not 

have allowed the entire videotaped statement of the victim’s daughter to be played 

where the defense only wished to play a portion of it to impeach one of her answers on 

cross-examination. Appellant alleges there were various instances of prosecutorial 

misconduct that require a new trial. Appellant also contends that the finding of prior 

calculation and design and the failure to find that he acted in self-defense were 

decisions that were contrary to the manifest weight of the evidence. These arguments 

are all without merit. 

¶{2} Appellant’s final argument is that the court erred in attempting to impose 

post-release control for unclassified felony offenses. The state concedes this error. As 

we are remanding for a new sentencing entry that deletes post-release control, we 

have decided to recognize plain error and include in this remand instructions for the 

trial court to correct its error in imposing a sentence on each of the two merged counts. 

That is, at a new sentencing hearing the state must choose which of the two merged 

counts it wishes the court to enter a sentence on and the trial court must enter a 

sentence on only one of the two merged counts. 

STATEMENT OF THE CASE

¶{3} On July 31, 2007, appellant shot Helen Moore in the neck, killing her 

instantly as she sat in her vehicle in front of his house in Youngstown, Ohio. The 

bullet then traveled into the skull of her eight-year-old son, who died in the hospital. 

Helen was also pregnant at the time and was only days from her due date. The fetus, 

weighing over seven pounds, was terminated by Helen’s death. 

¶{4} Appellant was indicted on four counts of aggravated murder with death 

and firearm specifications. Count one entailed purposely and with prior calculation 

and design causing the death of Helen Moore in violation of R.C. 2903.01(A). Count 
two alleged that appellant purposely and with prior calculation and design caused the 

unlawful termination of Helen’s pregnancy in violation of R.C. 2903.01(A). Count three 

alleged that appellant purposely caused the death of a child under thirteen in violation 

of R.C. 2903.01(C), referring to Helen’s unborn child. Count four entailed purposely 

causing the death of Helen’s son, a child under thirteen, in violation of R.C. 

2903.01(C). 

¶{5} At trial, the parties stipulated that Helen and appellant had an intermittent 

relationship from 2001 through the date of the incident and that the relationship was 

fraught with physical and verbal abuse by both parties. (Tr. 610). Helen’s daughter, 

who was eleven years old and riding in the backseat of her mother’s vehicle at the 

time of the incident, testified. She stated that Helen hung up on appellant each time 

he called her that morning. (Tr. 482). Appellant then came to their house and started 

to argue with Helen. (Tr. 480). 

¶{6} The daughter testified that appellant drove away, Helen followed him, 

and both parties were trying to hit each other’s vehicles. (Tr. 485). She used her 

cellular telephone to report where they were traveling to her aunt, who was following 

them. (Tr. 486-487). Her aunt kept telling her to beg her mother to stop. (Tr. 512-

513). They followed appellant to a convenience store, then to a shopping plaza 

(where her mother attempted to block appellant’s vehicle), and then to his house. (Tr. 

487, 508, 510). 

¶{7} She stated that her mother parked in front of appellant’s house, and 

appellant ran into his house momentarily. (Tr. 490-492). He then ran out of the house 

to their vehicle with something in his hand; as he approached the car, she noticed that 

he was holding a gun. (Tr. 493-494). She testified that appellant came to the front 

side of the car, argued with her mother briefly while pointing the gun at her, and then 

shot her. (Tr. 497). The car then rolled off the road, hit a tree, and flipped over on its 

side. (Tr. 499-500). 

¶{8} A portion of the child’s statement to police immediately after the incident 

related that her mother tried to run appellant over. (Tr. 518, 524). She clarified at trial 

that because appellant was on the side of the vehicle by her mother’s window when he 

fired the shot, her mother could not have actually run him over. (Tr. 527, 529). 
¶{9} Helen Moore’s nephew, who was fourteen at the time, testified that he 

was in a car waiting for Helen when appellant approached and started arguing about 

Helen not answering his calls. The nephew heard appellant say, “I’m going to slap 

you, I’m going to shoot you, I don’t care about that baby.” He testified that appellant 

tried to hit his aunt but missed and hit his mother instead. (Tr. 548). The vehicle he 

was in then followed Helen as she followed appellant. He stated that his mother and 

Helen tried to block appellant in at the shopping plaza because the police were on 

their way. (Tr. 550). The nephew heard appellant on his phone telling someone to get 

his gun. (Tr. 554). When they arrived at appellant’s house, he saw appellant run to 

his house and retrieve a shiny object from his girlfriend. (Tr. 560). He watched 

appellant approach Helen’s vehicle and pull a gun out from his shirt. (Tr. 561). He 

heard a gunshot and then saw Helen’s vehicle roll into the trees. (Tr. 562). 

¶{10} Helen Moore’s sister testified that she was present when appellant 

initially arrived at her sister’s house. She heard appellant threatening “to kill her, 

everybody, and he going to F her up * * *.” (Tr. 607). The sister testified that she got a 

crowbar out of her trunk to protect Helen as it appeared that appellant was about to hit 

her. (Tr. 608, 611). She told Helen to get in the car and could not discern if appellant 

ended up striking her. (Tr. 611). The sister testified that as Helen pulled away, 

appellant tried to hit her vehicle with his vehicle. (Tr. 612). 

¶{11} The sister stated that appellant then followed her sister’s vehicle and she 

followed both vehicles. (Tr. 613). The sister was on the phone with 911 for twentyminutes, and the tape was played to the jury. Once at the shopping plaza, she heard 

appellant tell someone on his phone to get his gun because he was about to kill 

someone. (Tr. 616). The time on the 911 call that she reported this to dispatch 

coincided with the time appellant’s phone records show that he called his girlfriend. 

(Tr. 777). When the sister arrived at appellant’s house, she saw appellant standing in 

the street watching Helen’s vehicle roll into the tress. (Tr. 626-627). 

¶{12} An officer testified that Helen’s sister told her that appellant had 

threatened, “I’ll kill you and your damn kids.” (Tr. 688). A witness from the shopping 

plaza testified to watching the argument. She stated that appellant could have driven 

away and that as Helen walked away, it appeared he kept antagonizing her and 

causing her to turn back to the argument. (Tr. 861-862). 
¶{13} Appellant then testified in his own defense. He stated that he argued 

with Helen at her house and then drove to the convenience store where Helen and her 

sister blocked his vehicle in, requiring him to drive over a curb. (Tr. 888-889). A 

defense witness, who came forward just prior to trial, confirmed this. (Tr. 866, 870). 

Appellant testified that Helen then pulled in front of him requiring him to drive around 

her vehicle. He said that when he stopped at the shopping plaza, Helen approached 

him yelling. (Tr. 890-891). He denied telling anyone on his phone to get his gun. (Tr. 

923). In fact, he testified that he had the gun on him all day. (Tr. 901). 

¶{14} Appellant testified that after a few minutes at the shopping plaza, he 

drove home with Helen following him. (Tr. 892, 896). He did not believe that she was 

trying to hit his vehicle. (Tr. 933). Appellant testified that upon arriving at home, he 

entered the house for a moment to see if his girlfriend was ready to leave. (Tr. 897-

898). He said that he walked to the middle of the street to tell Helen to leave but she 

stepped on the gas and tried to run him over. (Tr. 899). He said he started to run, 

pulled his gun out, and fired a shot behind him. (Tr. 901, 929). He then left the scene 

and turned himself in some days later. 

¶{15} A jury found appellant guilty of all four counts of aggravated murder with 

their attendant death and gun specifications. Counts two and three were merged as 

were the gun specifications. After the mitigation hearing, the jury recommended life 

without the possibility of parole, and the court concurred in imposing this sentence plus 

three years for the remaining gun specification. Appellant filed a timely notice of 

appeal from the court’s May 22, 2009 sentencing entry. 

ASSIGNMENT OF ERROR NUMBER ONE

¶{16} Appellant’s first assignment of error contends: 

¶{17} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY 

OVERRULING HIS MOTIONS TO DISMISS COUNTS TWO (2) AND THREE (3) OF 

THE INDICTMENT REFERRING TO DEATH OF THE UNBORN CHILD.” 

¶{18} Counts two and three both referred to Helen’s unborn child. Count two 

alleged that appellant purposely and with prior calculation and design caused the 

unlawful termination of Helen’s pregnancy in violation of division (A) of R.C. 2903.01. 

The aggravated murder in count three deals with division (C) of R.C. 2903.01, which 
states that no person shall purposely cause the death of another who is under thirteen 

years of age. 

¶{19} Initially, appellant generally argues that he was prejudiced by having to 

defend against two different aggravated murder counts for the same victim. He then 

more specifically argues that he should have only been charged with count two 

because it is more precise than count three as it deals with an unborn child whereas 

count three deals with an actual child. This coincides with the arguments within his 

April 10, 2009 motion to dismiss count three. 

¶{20} Appellant cites R.C. 1.51 in support of his preciseness argument. Yet, 

that statute only refers to situations where a general provision conflicts with a special 

or local provision. Here, there is no conflict between the divisions; nor is one division 

more precise. For purposes of criminal offenses, a person (including the person who 

is killed in an R.C. 2903.10(C) offense) includes an unborn human who is viable. R.C. 

2901.01(B)(1)(a)(ii). Viable is then defined as the stage of development of a human 

fetus at which there is a realistic possibility of maintaining and nourishing a life outside 

the womb with or without temporary artificial life-sustaining support. R.C. 

2901.01(B)(1)(c)(ii). The defense did not contest viability in its dismissal motions as 

the baby weighed over seven pounds and was due in a matter of days. Thus, count 

two is not more precise than count three1

, and both counts are applicable to the 

situation at bar. See State v. Chippendale (1990), 52 Ohio St.3d 118, 122-123 (where 

there is no manifest legislative intent that one offense apply over another, the state 

can try the defendant for two offenses and the court will merge the offenses at 

sentencing). 

¶{21} Along these lines, it should be pointed out that the Double Jeopardy 

Clause prohibits multiple punishments for the same offense. Fifth Amendment, United 

States Constitution; Section 10, Article I, Ohio Constitution. Allied offenses of similar 

import are subject to this same prohibition. R.C. 2941.25. However, it is the 

imposition of more than one sentence, not the trial by a jury on all offenses, that is 

barred. A defendant can be tried for all offenses that his conduct encompasses. State 

 1

Notably, if a jury found the fetus was not viable, then count three would not be established as 

the definition of person requires a viable fetus, whereas count two does not require the fetus to be 

viable in order to establish that type of aggravated murder.
v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶17. See, also, R.C. 2941.04. Thus, 

the trial court was not required to dismiss count three prior to trial. 

¶{22} Appellant’s next argument coincides with another motion to dismiss filed 

before trial, wherein he argued that both counts two and three should be dismissed. 

Specifically, he argues that charging him with aggravated murder for the death of an 

unborn child is an Equal Protection violation, alleging that those charged under R.C. 

2919.17, the unlawful abortion statute, are similarly situated defendants but are only 

subject to the maximum penalty of a fourth-degree felony. See R.C. 2919.17(D). 

¶{23} There is a presumption that statutes are constitutional, and the 

challenger has the burden to establish a statute’s interaction with another statute is 

unconstitutional. State v. Gill (1992), 63 Ohio St.3d 53, 55. The Equal Protection 

clause does not prevent all classifications; it merely prohibits laws from treating 

persons differently when they are alike in all relevant respects. Huntington Natl. Bank 

v. Limbach (1994), 71 Ohio St.3d 261, 262. Statutes that do not discriminate based 

upon a “suspect classification” and do not deprive a certain class of individuals of a 

fundamental right must only be rationally related to some legitimate government 

interest. Conley v. Shearer (1992), 64 Ohio St.3d 284, 289. 

¶{24} As aforementioned, R.C. 2919.17 deals with the offense of terminating a 

human pregnancy after viability. Division (A) provides that no person shall purposely 

perform or induce or attempt to perform or induce an abortion upon a pregnant woman 

if the unborn human is viable, unless two exceptions dealing with physicians apply. 

¶{25} The definition statute referenced supra provides that the word “person” 

shall not be construed so that an offense prohibits any pregnant woman or her 

physician from performing an abortion with the consent of the pregnant woman, with 

the consent of the pregnant woman implied by law in a medical emergency, or with the 

approval of one otherwise authorized by law to consent to medical treatment on behalf 

of the pregnant woman. R.C. 2901.01(B)(2)(a). The statute continues by stating that 

an abortion that violates any of these terms can be punished under R.C. 2903.01 (the 

aggravated murder statute) if applicable. Id. An abortion that does not violate any of 

these terms but violates R.C. 2919.17, for instance, may be punished as a violation of 

R.C. 2919.17. Id. See, also, R.C. 2903.09(C)(1). 
¶{26} Firstly, it is unlikely that appellant’s act of shooting a pregnant woman in 

the neck would be categorized as the performance or inducement of an abortion just 

because the defendant is charged with aggravated murder which entails the unlawful 

and purposeful termination of a pregnancy with prior calculation and design. Even if 

appellant’s conduct could be considered an “abortion,” the statute provides that he is 

to be charged with R.C. 2903.01 where the terms in R.C. 2901.01(B)(2)(a) are 

violated. 

¶{27} Contrary to appellant’s suggestion, a person who performs a nonconsensual, non-medical abortion of a viable fetus (a comparable defendant) can be 

charged with aggravated murder and cannot be charged with R.C. 2919.17. See R.C. 

2909.01(B)(2)(a).2

 Therefore, the comparable defendant that appellant utilizes to 

support his argument would be treated the same as he was which negates any equal 

protection concerns. Thus, this argument is overruled. 

¶{28} In any event, even if appellant could have been charged with a violation 

of R.C. 2919.17 regarding the lost fetus, the prosecutor has charging discretion. 

United States v. Batchelder (1979), 442 U.S. 114, 123-124. That is, when a criminal 

act violates more than one statute, the prosecutor can chose the offense with the 

greater punishment as long as he does not discriminate against a class of defendants. 

Id. To raise an Equal Protection challenge regarding prosecutorial selectivity, the 

defendant must allege that the choice of offense was motivated by improper 

considerations such as race, religion, or other arbitrary classification. Id. at 125, fn.9, 

citing Oyler v. Boles (1962), 368 U.S. 448, 456. Here, there is no actual class of 

defendants alleged to have been chosen by the prosecutor to receive the higher 

charge and no allegations of improper considerations. For all of these reasons, 

appellant’s argument is without merit. 

¶{29} Appellant’s last argument under this assignment is difficult to understand. 

He reiterates that he was prejudiced by the existence of both counts concerning the 

 2

Appellant does not state that he is similarly situated with a physician who performs an abortion 

of a viable fetus without a medical reason or without consent. See State v. Moore (Oct. 30, 1998), 2d 

Dist. No. 97CA137 (where the Second District concluded that charging violent offenders who purposely 

terminate a pregnancy with aggravated murder is rationally related to a legitimate government interest 

and that there is no Equal Protection violation by treating the defendant different than a physician or a 

pregnant woman); State v. Coleman (1997), 124 Ohio App.3d 78, 81 (constitutional to treat physician 

performing unlawful abortion different from violent offender). In fact, a physician who performs an 

abortion under certain circumstances is prosecuted for aggravated murder instead of a violation of R.C. 

2919.17. See R.C. 2909.01(B)(2)(a).
fetus. This argument was addressed above, where it was pointed out that multiple 

pertinent counts can exist at trial as merger after trial is the only right of the defendant. 

Combined with this contention, appellant states that the addition of a charge which will 

be merged later is even more prejudicial in capital cases where additional death 

specifications will exist. However, there is no separate rule in capital cases that 

requires the state to elect which charge to proceed on before trial. See State v. 

Jenkins (1984), 16 Ohio St.3d 164, 195 (the presentation of overlapping aggravating 

circumstances at the guilt phase of a capital trial is allowable). 

¶{30} Appellant’s argument here becomes even more unclear when 

considering that he also briefly contends, without explanation, that neither count two or 

three could support a death specification on its own. It seems he may be attempting to 

argue that the jury could use the fetus twice to find him guilty of the death specification 

which alleged that the offense was part of a course of conduct involving the purposeful 

killing or attempt to kill two or more persons. However, it is clear that the jury was 

aware that counts two and three involved the same fetus. Regardless, the jury found 

him guilty of this death specification on count one (corresponding to Helen) and count 

four (corresponding to the eight-year-old child) as well. Thus, the existence of counts 

two and three did not factor into the jury’s decision to convict him of this death 

specification. This assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER TWO

¶{31} Appellant’s second assignment of error alleges: 

¶{32} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

APPELLANT BY REQUIRING, AT THE INSISTENCE OF APPELLEE, THE 

ENTERING INTO EVIDENCE AND PLAYING OF THE VIDEOTAPE STATEMENT OF 

APPELLEE’S WITNESS [HELEN’S DAUGHTER, named omitted] IN ITS ENTIRETY 

FOR IMPEACHMENT PURPOSES OVER THE OBJECTION OF APPELLANT 

DURING TRIAL.” 

¶{33} On direct examination, Helen’s daughter testified that the car was not 

moving when appellant ran to it and that it did not move until he fired the gun. (Tr. 

498-499). On cross-examination, she stated that she did not remember making the 

following statement to police: “He ran out in front of the car and my mom tried to drove 

[sic] up and run him over.” (Tr. 518). The defense then indicated that it would present 
her videotaped interview, at which point the court asked if they would be playing the 

entire interview or just one portion. The defense stated, “Just the one portion at this 

point.” The state objected arguing that impeachment requires a contradiction not a 

lack of memory. (Tr. 520). The defense then agreed to question her again to clarify 

whether she denied that she made the statement. The state concurred, adding that if 

she denies it, then the whole video must be played. The court agreed. (Tr. 521). 

¶{34} Upon further questioning, the witness denied telling the detective that her 

mother tried to run appellant over. (Tr. 522). Defense counsel stated that he was 

going to play the video of the interview. The court stated, “Let the record reflect the 

defense counsel is going to play the entire interview.” Defense counsel said, “Your 

Honor, what I would like to do is go to that portion, and if the state would like to play 

the entire thing –.” The court responded, “No. Play the whole thing now.” (Tr. 523). 

¶{35} Appellant argues that only the portion of the interview that contained the 

prior inconsistent statement should have been played to the jury. He argues that by 

playing the whole statement, improper emphasis was placed on the witness’s 

testimony as the jury ended up hearing her story twice. 

¶{36} The subject matter of a prior inconsistent statement sought to be 

introduced through extrinsic evidence must be a fact that is of consequence to the 

determination of the action other than credibility. Evid.R. 613(B)(2)(a). When a party 

introduces part of a statement, the other party can require the introduction at that time 

of any other part of the statement that is otherwise admissible and which ought in 

fairness be considered contemporaneously with it. Evid.R. 106 (a “rule of timing”). Cf. 

Fed. Evid.R. 106 (which adopts a “rule of completeness” and does not require the 

remainder of the statement to be otherwise admissible). The question thus becomes 

whether the other parts of the interview, which were not inconsistent statements, were 

otherwise admissible or whether they were hearsay. 

¶{37} A prior consistent statement is not hearsay if the declarant testifies at 

trial or hearing and is subject to cross-examination concerning the statement, and the 

statement is consistent with declarant's testimony and is offered to rebut an express or 

implied charge against declarant of recent fabrication or improper influence or motive 

or the statement 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)(b), (c). Here, part of the interview consisted of the child identifying appellant 

as the shooter, and thus, these parts are not hearsay. See Evid.R. 801(D)(1)(c). 

Moreover, one could conclude that the defense was implying that the child was 

fabricating parts of her story or that someone influenced her to say that the car did not 

move prior to the shot in order to ruin appellant’s claim of self-defense. See Evid.R. 

801(D)(1)(b). Thus, upon the defense’s entry of part of it into evidence, the trial court 

could have rationally used its discretion to allow the interview into evidence in order to 

rehabilitate the witness. See id. See, also, Staff Note to Evid.R. 801(D)(1)(b) (1980). 

¶{38} We also note the state’s response that the content of the interview is 

admissible as a past recorded recollection. That is, a matter is not hearsay if it is: 

¶{39} “A memorandum or record concerning a matter about which a witness 

once had knowledge but now has insufficient recollection to enable him to testify fully 

and accurately, shown by the testimony of the witness to have been made or adopted 

when the matter was fresh in his memory and to reflect that knowledge correctly. If 

admitted, the memorandum or record may be read into evidence but may not itself be 

received as an exhibit unless offered by an adverse party.” Evid.R. 803(5). 

¶{40} Notably, there is no limitation in this rule upon which parts of the 

memorandum can be read. See id. 

¶{41} Appellant then argues that the interview should have been excluded 

under Evid.R. 403. This rule makes the exclusion of relevant evidence mandatory if its 

probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury and makes such exclusion 

discretionary if its probative value is substantially outweighed by considerations of 

undue delay, or needless presentation of cumulative evidence. Evid.R. 803(A), (B). 

¶{42} There is no per se prejudice in presenting the remainder of an interview 

after presenting the prior inconsistent statement part of it where it merely recites 

testimony that the jury already heard. See State v. Blanks (Jan. 14, 1988), 8th Dist. 

No. 52543 (technical error in providing entire statement was not prejudicial where it did 

not provide jury with anything they had not already heard). The trial court could 

rationally find that the probative value of the interview was not substantially 

outweighed by unfair prejudice or by the needless presentation of cumulative 

evidence. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶62 (a 
reviewing court should not disturb evidentiary decisions in the absence of an abuse of 

discretion). 

¶{43} In any case, the defense did not object to playing the entire statement. 

(Tr. 521, 523, 524). When the state initially argued that the entire statement must be 

played, the defense voiced no opinion. (Tr. 521). When the court first announced that 

the entire statement would be played, the defense again voiced nothing to the 

contrary. (Tr. 521-522). In fact, in later voicing a preference as to timing, the defense 

essentially agreed that the state could play the remainder on redirect. (Tr. 523). As 

such, any error appears to be invited, and cannot be raised on appeal. State v. 

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, ¶10 (even plain error is waived 

where the error is invited). See, also, Lester v. Leuck (1943), 142 Ohio St. 91, 92. For 

all of these reasons, this assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER THREE

¶{44} Appellant’s third assignment of error provides: 

¶{45} “INSTANCE OF PROSECUTORIAL MISCONDUCT THROUGHOUT 

THE COURSE OF APPELLANT’S CRIMINAL TRIAL DEPRIVED HIM OF HIS RIGHT 

TO A FAIR TRIAL.” 

¶{46} In reviewing a prosecutor's alleged misconduct, the reviewing court 

considers whether the prosecutor's remarks were improper and whether those 

remarks affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio 

St.3d 13, 14-15. Even if the remarks were improper, reversal is not warranted unless 

the conduct complained of deprived the defendant of a fair trial. State v. Fears (1999), 

86 Ohio St.3d 329, 332. If in the context of the entire trial it appears clear beyond a 

reasonable doubt that the jury would have found the defendant guilty even without the 

improper comments, then the comments can be considered harmless. State v. LaMar, 

95 Ohio St.3d 181, 2002-Ohio-2128, ¶121. Moreover, the failure to object to 

prosecutorial misconduct waives all but plain error. State v. Hanna, 95 Ohio St.3d 285, 

2002-Ohio-2221, ¶77, 84. 

¶{47} Appellant sets forth various allegations of prosecutorial misconduct. First, 

he claims that during voir dire, the prosecutor made reference to appellant’s postarrest silence. (Tr. 278-279). However, the statement contested here was a generic 

exploration of how a potential juror would view the credibility of a witness who did not 
come forward when they had information. (Tr. 277-278). Specifically, the state used 

an example of a coworker sitting back while another coworker lost his job based upon 

an employer’s mistaken belief. (Tr. 278). It was not a reference to the defendant. As 

the state argued in a sidebar, the witnesses it had in mind were appellant’s girlfriend 

and a relative. (Tr. 280). The court then asked the state to use a different line of 

questioning to explore the topic. (Tr. 281). This is a rational response to the situation. 

There is no indication that appellant’s substantial rights were affected by this 

innocuous question to an individual juror in voir dire. 

¶{48} Appellant also takes issue with the prosecutor’s attitude while 

questioning a defense witness regarding why the state was not informed of the witness 

until four days after the commencement of trial even though the witness apparently 

spoke with the defense “well before that * * *.” (Tr. 871). During a sidebar where the 

court was questioning defense counsel about when he discovered the witness, the 

defense moved for a mistrial, relating that the prosecutor had acted like he was 

enraged at defense counsel by pointing his finger. (Tr. 875). The prosecutor urged 

that he was not pointing but was just motioning to the defense. (Tr. 876). The court 

stated to the jury: “[O]n behalf of the attorneys, I am going to apologize for the 

outburst you just witnessed. You know that this is a very serious matter and that 

nerves are almost frazzled. So I am sure they apologize for any emotional outbursts 

that they showed to you.” (Tr. 875). Thus, the jury was aware that the prosecutor 

should not have acted so emotionally. Moreover, the defense stated that it was 

satisfied with the admonition. (Tr. 877). As such, the court reasonably handled the 

situation. 

¶{49} The next instance raised by appellant here is that while cross-examining 

appellant, the prosecutor told him to stop looking at his counsel. (Tr. 919). The 

defense objected, the court sustained the objection, and the court instructed the jury to 

disregard the prosecutor’s comment about appellant looking at his attorneys and to not 

consider the comment for any matter. (Tr. 919). We presume that the jury followed 

the court’s curative instruction. See State v. Garner (1995), 74 Ohio St.3d 49, 59. 

¶{50} Appellant then complains about various parts of the prosecutor’s closing 

arguments. He complains that the state implied either that appellant confessed or that 

he exercised his right to post-arrest silence. Specifically, the prosecutor surmised: “If 
Detective Mercer was going to lie, how easy would it have been for him just to have 

said, yeah, when we arrested him, he confessed. He didn’t try to do that. He didn’t try 

to add anything.” (Tr. 971). The defense objected on the grounds that this crossed 

the line of suggesting either that the defendant confessed or was an improper 

reference to post-arrest silence. (Tr. 971-972). The prosecutor responded that he 

was merely stating that the detective was credible. (Tr. 972). The court overruled the 

objection but asked the state to “[s]tay away from the word confession.” (Tr. 973). 

Contrary to appellant’s argument, the state was not suggesting that appellant 

confessed or suggesting that he must be guilty because he did not deny the acts postarrest. Clearly, the comments dealt with the detective’s credibility. Thus, appellant’s 

particular argument here is without merit. 

¶{51} Two other times in closing, the prosecutor stated that appellant admitted 

the aggravated murders. (Tr. 980, 987). The second time, the defense objected on 

the grounds that appellant admitted to purposely pulling the trigger, not to prior 

calculation and design, and thus, the most he admitted was murder (albeit in 

conjunction with self-defense). (Tr. 987). The court sustained the objection and asked 

the defense what remedy they proposed. The defense responded, “I just want you to 

say the objection’s sustained, his last comment will be stricken, and then he can go 

into [it] if he wants to [clarify.]” The court then announced that the objection was 

sustained and instructed the jury to disregard the prosecutor’s comment. (Tr. 988). 

The state then explained that appellant did not admit prior calculation and design but 

only admitted that he purposely caused the deaths. (Tr. 988-989). Thus, the error 

was remedied in the manner asked by the defense. 

¶{52} Appellant also takes issue with the prosecutor’s characterization of his 

defense in a manner that denigrated him and his attorneys. For instance, the 

prosecutor recapped the videotaped interview of Helen’s daughter arguing that she 

stated that her mother tried to pull up, not that her mother tried to run him over. The 

prosecutor then stated, “The defense is trying to twist words, manipulate an 11-yearold. They’re relying on two words being transposed for their defense. Give me a 

break. She’s 11 years old.” (Tr. 961). Absent the manipulation comment, the 

statement is a proper comment upon the evidence. See State v. Hill, 8th Dist. No. 

80582, 2002-Ohio-4585, ¶35. The manipulation comment, although overly harsh, did 
not appear to deprive appellant of a fair trial. See id. (state’s comment that defense 

counsel twisted evidence around did not rise to a level of insinuating that defense 

counsel was untruthful); State v. Prysock, 10th Dist. No. 86AP-492 (substantial rights 

not affected where prosecutor said defense twisted things around, cooked up some 

scheme, and threw in “imaginary things.”). 

¶{53} Thereafter, the state opined that the testimony of Helen’s sister may 

have sounded overly deliberate because she was asked compound questions and 

“wasn’t going to let the defense counsel trick her.” (Tr. 966). The defense objected, 

and the court instructed the state to stop using the word “tricked.” (Tr. 967). Where a 

witness is asked a two-part question requiring the witness to answer yes to one part 

and no to the other part, it could be considered a strategy to try to “trick” the witness 

into answering only the last part of the question so that it sounds like the witness is 

providing the same answer to both parts of the question. The state was trying to 

explain why the witness may have sounded overly deliberate while testifying and why 

she was upset on the stand. It appeared the defense was satisfied with the court’s 

admonition to counsel, and it does not appear that the statements were outcome 

determinative. 

¶{54} Appellant also takes issue with the statements: “The defendant is doing 

what I like to call the spaghetti approach, the shotgun approach. Some people call it 

the BS approach where you just kind of throw everything out there, hope something 

sticks, hope you get some – somebody confused in the law.” (Tr. 981). These 

statements were made after the state noted that appellant was raising the affirmative 

defense of self-defense and in the alternative was claiming that his actions only 

constituted voluntary manslaughter due to sudden passion or serious provocation. (Tr. 

980). However, no objection was entered, and plain error is not apparent. That is, the 

Supreme Court has allowed the state to describe a defense as “baloney” and a 

“dartboard approach.” State v. Brown (1988), 38 Ohio St.3d 305, 317. 

¶{55} Finally, appellant complains that the state’s closing opined that appellant 

was lying. (Tr. 985, 1031, 1037). The defense did not object to any of these 

statements and thus waived all but plain error. See State v. Perez, 124 Ohio St.3d 

122, 2009-Ohio-6170, ¶181. Moreover, the second and third statements were made in 

the state’s rebuttal when responding to the defense’s statement that no one lied, which 
opened the door to the state’s characterization. (Tr. 991-992, 1031, 1037). See State 

v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶216-217; State v. Brown (1988), 38 

Ohio St.3d 305, 316-317. Finally, calling the defendant a liar has been found to be 

harsh but not purely abusive where it is a fair comment on the evidence and where the 

state’s comment underscores its theory of the case that the defendant’s version of 

events is untrue. State v. Clemons (1998), 82 Ohio St.3d 438, 452. 

¶{56} Attorneys are permitted a certain degree of latitude in summation. State 

v. Treesh (2001), 90 Ohio St.3d 460, 466. Thus, the prosecutor may draw reasonable 

inferences from the evidence presented at trial, and may comment on those inferences 

during closing argument. Id. Viewed in its entirety, the state’s closing argument here 

does not deny appellant a fair trial. See id. This assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER FOUR

¶{57} Appellant’s fourth assignment of error contends: 

¶{58} “THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER 

THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTIONS FOR 

AGGRAVATED MURDER WERE AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE AND THE JURY AND TRIAL COURT’S VERDICT WERE 

INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTED AT TRIAL.” 

¶{59} Weight of the evidence deals with the inclination of the greater amount of 

credible evidence to support one side of the issue over the other. State v. Thompkins

(1997), 78 Ohio St.3d 380, 387. In reviewing a manifest weight of the evidence 

argument, the reviewing court examines the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses, and determines whether 

in resolving conflicts in the evidence, the trial court clearly lost its way and created 

such a manifest miscarriage of justice that the conviction must be reversed and a new 

trial ordered. Id. A reversal on weight of the evidence is ordered only in exceptional 

circumstances. Id. In fact, where a criminal case has been tried by a jury, only a 

unanimous appellate court can reverse on the ground that the verdict was against the 

manifest weight of the evidence. d. at 389, citing Section 3(B)(3), Article IV of the Ohio 

Constitution (and noting that the power of the court of appeals is limited in order to 

preserve the jury's role with respect to issues surrounding the credibility of witnesses). 
¶{60} In conducting our review, we proceed under the theory that when there 

are two conflicting versions of events, neither of which is unbelievable, it is not our 

province to choose which one should be believed. State v. Gore (1999), 131 Ohio 

App.3d 197, 201. Rather, we defer to the jury who was best able to weigh the 

evidence and judge the credibility of witnesses by viewing the demeanor, voice 

inflections, and gestures of the witnesses testifying before it, including appellant 

himself. See Seasons Coal Co. v. Cleveland (1994), 10 Ohio St.3d 77, 80; State v. 

DeHass (1967), 10 Ohio St.2d 230, 231. 

¶{61} Appellant states that he did not act with prior calculation and design 

because the shooting was a spontaneous response to Helen’s attempt to run him over. 

He argues that he was justified in shooting Helen because the car was coming toward 

him, because he did not create the violent situation, and because he did not violate 

any duty to retreat. See State v. Williford (1990), 49 Ohio St.3d 247, 249 (the 

affirmative defense of self-defense has three elements: (1) the defendant was not at 

fault in creating the violent situation, (2) the defendant had a bona fide belief that he or 

she was in imminent danger of death or great bodily harm and that his or 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). 

¶{62} However, the testimony established that appellant threatened to kill 

Helen and her children twenty minutes prior to the shooting, simultaneously 

expressing that he did not care about the baby. (Tr. 548, 607). At one point, he called 

his girlfriend and asked her to get his gun. (Tr. 554, 616, 777). One witness heard 

him tell his girlfriend that the reason he needed his gun was to kill someone. (Tr. 616). 

The testimony shows that appellant then drove home, approached his girlfriend, and 

entered his house. A reasonable inference can be drawn that appellant either 

received his gun from her or retrieved it from the house. (Tr. 490-492, 560). The jury 

need not believe that appellant had his gun on him all day as he claimed. 

¶{63} Appellant then deliberately walked to the vehicle on the street containing 

Helen and her three children. Helen’s daughter testified that he argued with her 

mother while pointing the gun at her. (Tr. 497). There is some evidence that the car 

did not move until after the shot was fired. In any event, one could conclude that even 

if her car moved prior to the shot, she was only trying to escape or to otherwise protect 
herself from appellant’s gun. A rational juror is not forced to believe that appellant only 

brandished his gun while running away from a car intent on hitting him. 

¶{64} There are two reasonable views of the evidence. That the jury chose to 

believe a view contrary to that set forth by appellant did not result in a manifest 

miscarriage of justice. A finding that prior calculation and design existed is not 

contrary to the manifest weight of the evidence. It was not unbelievable that appellant 

had a process of reasoning involving a scheme that gave studied consideration to the 

method of death. See State v. Moore, 7th Dist. No. 07MA136, 2009-Ohio-1177 ¶36-

38. As such, this assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER FIVE

¶{65} Appellant’s fifth and final assignment of error provides: 

¶{66} “THE TRIAL COURT VIOLATED DUE PROCESS AND COMMITTED 

PLAIN ERROR WHEN IT IMPOSED POST-RELEASE CONTROL FOR 

APPELLANT’S CONVICTIONS FOR AGGRAVATED MURDER WITHOUT 

STATUTORY AUTHORITY TO DO SO PURSUANT TO R.C. 2967.28.” 

¶{67} At sentencing, the court advised appellant that when he is released he 

will be subject to a period of post-release control for up to five years. (Sent. Tr. 13). 

The sentencing entry states that the defendant was advised of post-release control at 

the sentencing hearing. Appellant argues that aggravated murder is a specially 

classified felony, that post-release control only applies to offenses classified from a 

first to a fifth degree felony, and that the court thus erred in sentencing (or attempting 

to sentence) him to post-release control. The state concedes the correctness of this 

argument. 

¶{68} As the parties agree, the post-release control statute applies only to 

felonies of the first, second, third, fourth, and fifth degree. See R.C. 2967.28(B), (C). 

Aggravated murder is an unclassified felony whereby the defendant is either ineligible 

for parole or becomes eligible for parole after serving a certain amount of years in 

prison. See R.C. 2929.03(A)(1); 2967.13(A). Thus, “[A]n individual sentenced for 

aggravated murder * * * is not subject to postrelease control * * *.” State v. Clark, 119 

Ohio St.3d 239, 2008-Ohio-3748, ¶35-36. Consequently, the trial court erred in stating 

at sentencing that appellant was subject to up to five years of post-release control and 

by attempting to impose post-release control in its sentencing entry. 
¶{69} Appellant states that we must remand for a new sentencing hearing. The 

state believes that we choose whether to vacate the post-release control portion of the 

sentencing entry or that we can remand for a new sentencing hearing before the trial 

court. On this issue, this court has held: 

¶{70} “Based on this statutory scheme, the trial court was not authorized to 

impose post-release control as part of Crockett's sentence. When a trial court imposes 

a sentence that is unauthorized by law, the sentence is unlawful. State v. Simpkins, 

117 Ohio St.3d 420, 2008-Ohio-1197, ¶21. An unlawful act is not merely considered 

erroneous or voidable, but it is wholly unauthorized and void. Id. A void sentence 

must be vacated, placing the parties in the same position they would have been in had 

there been no sentence. Id. at ¶22. Thus, the trial court must conduct a new 

sentencing hearing.” State v. Crockett, 7th Dist. No. 07MA233, 2009-Ohio-2894, ¶9. 

¶{71} As we are remanding for a new sentencing hearing by the trial court, we 

have decided to recognize plain error on a merger issue. Plain errors or defects 

affecting substantial rights may be noticed although they were not brought to the 

attention of the trial court or this court. See Crim.R. 52(B); State v. Slagle (1992), 65 

Ohio St.3d 597, 604 (appellate court can sua sponte consider unobjected to errors). 

Plain error can be recognized to prevent a manifest miscarriage of justice where, but 

for the error, the outcome of the proceeding clearly would have been otherwise. State 

v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, ¶61. 

¶{72} Here, the court sentenced appellant to consecutive sentences on all four 

counts. However, the court found that counts two and three, the counts dealing with 

the unborn child, merged as a matter of law. Sent. Tr. 13; 05/22/09 J.E. p. 10. Upon 

this merger, the court was only permitted to sentence appellant to one of the merged 

offenses. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶17-18 (when two 

counts are merged, a sentence can only be entered on one). A court cannot even 

enter concurrent sentences on merged offenses, let alone consecutive sentences as 

the court did here. See id. The proper remedy for this error is to remand for a new 

sentencing hearing where the state shall choose which of the merged counts on which 

it wishes the court to enter a sentence. See id. at ¶21-25 (state’s right to elect which 

offense should remain for purposes of sentencing on remand); State v. Fellows, 7th 

Dist. No. 09JE36, 2010-Ohio-2699, ¶58. 
¶{73} For the foregoing reasons, the judgment of the trial court is affirmed in 

part, reversed and remanded in part. The case is remanded for a new sentencing 

hearing where the trial court shall enter a sentence on only one of the two merged 

counts and where the trial court thereafter shall issue a sentencing entry containing no 

post-release control. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.