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State v. Kinney

Court of Appeals of Ohio, Seventh District, Belmont

June 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID CARL KINNEY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 17 CR 154

          Atty. Daniel P. Fry, Belmont County Prosecutor, Atty. Kevin Flanagan, Chief Asst. Prosecuting Attorney, for Plaintiff-Appellee and

          Atty. Christopher J. Gagin, McCamic, Sacco & McCoid, PLLC, for Defendant-Appellant.

          BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          Robb, J.

         {¶1} Defendant-Appellant David Kinney appeals his aggravated murder conviction entered after a jury trial in the Belmont County Common Pleas Court. He raises issues with: the sufficiency and the weight of the evidence on the element of prior calculation and design; the lack of Miranda warnings during the police interview until after he admitted and demonstrated the shooting; the voluntariness of his statement to police; the admissibility of a recorded spousal conversation; the denial of access to the grand jury transcript; the failure to excuse two venire members for cause; whether a jury instruction suggested the jury had to unanimously acquit him of aggravated murder before considering the lesser charge of murder; the refusal to instruct on voluntary manslaughter; and the reviewability of the sentence of life without parole. For the following reasons, the trial court's judgment is affirmed.

         STATEMENT OF THE CASE

         {¶2} Appellant became friends with Brad McGarry (the victim) after they met at a coal mining class in 2011. Appellant was married, and his wife had three children he considered his own. They spent holidays with the victim, and the children called him "uncle." At some point, Appellant and the victim began having an affair. Starting at the end of 2016, Appellant's wife voiced suspicions about the affair to Appellant. (Tr. 569-573). Around this time, the victim was upset Appellant would not leave his wife for the victim. (Tr. 889, 892).

         {¶3} On May 6, 2017, the victim went to a wedding in Monroe County and stayed at his mother's house. During a family meal on May 7, the victim received a message on his phone and rushed to leave in a mood that was described as happy, giddy, and excited. (Tr. 298). Before leaving, he indicated to his cousin that he would return a tuxedo to the mall and then go home to meet Appellant where he expected they would take "a nap." The victim said this with a wink, suggesting to the cousin the victim was meeting Appellant for a sexual encounter. (Tr. 315-318). The victim returned the tuxedo and arrived at his home in Bellaire, Ohio around 2:55 p.m. The police chief lived on the same street as the victim, and his surveillance system captured footage of vehicles traversing the street. A car driven by Appellant traveled toward the victim's house at 1:59 p.m. and traveled away from the victim's house at 3:11 p.m. (sixteen minutes after the victim arrived home). (Tr. 476).

         {¶4} Later that day, Appellant drove his wife and her thirteen-year-old daughter from their home in Brilliant, Ohio to the victim's house (over 30 minutes away) where they were to visit and to deliver a weed trimmer. The child went to the door first and noticed it was open. When they looked in the kitchen, they noticed drawers and cupboards open and items strewn about. After unsuccessfully calling the victim vocally and over the phone, Appellant's wife told him to retrieve his firearm. It was in his car, and he had a concealed carry permit. Upon retrieving his .40 caliber handgun, Appellant explored the main floor of the house. Upon descending to the basement, which was also a garage, he yelled for his wife to call 911. She went downstairs followed by her daughter. At 6:15 p.m., Appellant's wife called 911 to report the discovery of the victim's body surrounded by a pool of blood.

         {¶5} The victim was lying face down on the floor near a covered hot tub in a cluttered area of the basement. The victim had been shot twice in the back of the head. Gunshot residue was observed around both entrance wounds. (Tr. 604). One shot entered the top-back portion of the victim's scalp and exited the top-front of the scalp without entering the skull or brain. (Tr. 599). Although the bullet caused a skull fracture and blood loss, this wound likely would not have been fatal with medical care. (Tr. 602). A deformed bullet fragment was found on the basement floor; brushed copper was still visible on the small caliber bullet, which appeared consistent with a .22 caliber bullet. (Tr. 721).

         {¶6} After learning about a hat at the scene, the forensic pathologist opined the gun would have been fired from a few to several inches away to cause this perforating scalp wound; he originally believed it was a contact wound due to the amount of gunshot residue. (Tr. 638, 658, 678). The hat was found on the hot tub. Indications that it was on the victim's head during the shot through the scalp included a dense pattern of gunshot residue around a hole in the top of the hat and a piece of skin tissue with hair stuck to the outside front of the hat under another hole. (Tr. 719, 724, 808). During a later search, police recovered an additional piece of the victim's skin tissue with hair from the side of the washing machine located 10-15 feet from the body. (Tr. 518, 764, 785).

         {¶7} As for the fatal shot, the bullet entered the back of the victim's head in the left occipital area and was recovered from the right, front portion of the brain. (Tr. 608-609). This bullet was specifically identified as a .22 caliber long rifle copper-washed lead bullet; in this context, "long rifle" refers to the caliber, not the type of gun used to fire it. (Tr. 762, 811). The forensic pathologist opined the fatal wound was a partial contact shot inflicted at an angle, noting the abundance of soot on the right side of the entry wound. (Tr. 633-635).

         {¶8} The police believed the scene appeared staged to look like a robbery because it seemed "neatly ransacked" and valuable items were visible, including a gun in an open nightstand drawer and money. Various drawer handles were swabbed and tested for touch DNA. Most swabs did not contain enough material for analysis, but the victim's DNA was predictably found on a kitchen drawer. (Tr. 521-526, 554).

         {¶9} Upon speaking to the responding officers at the scene, Appellant reported the victim was his best friend who was like a brother to him. It was said the victim planned to go on vacation with Appellant's family that summer. When asked if anyone may have reason to commit the offense, Appellant named a man the victim dated (who was cleared due to his incarceration at the time). He also mentioned two men who recently installed a fence at the house. (Tr. 351, 905). Appellant provided a written statement at the scene. A detective explained they would conduct a detailed follow-up interview of him and his wife in the next few days. During interviews with others, it was reported the victim was having an affair with Appellant and threatened to tell Appellant's wife about the relationship. (Tr. 975-976).

         {¶10} Appellant arrived at the police station for his interview two days after the shooting. He provided DNA for purposes of elimination. He also provided consent to search his phone and the passcode. He said he and his step-son went to visit the victim the day before the shooting. The victim called him that night during and after the wedding, and they spoke both times. Appellant discussed his activities on the day of the shooting, omitting any mention of being at the victim's house earlier that day. He told a similar story of finding the body that he told at the scene.

         {¶11} When the detective asked about certain items discovered on Appellant's phone, Appellant admitted he had recurrent sexual encounters with the victim for years. He said his wife did not know about the sexual relationship. Appellant thereafter disclosed that he was in Bellaire earlier on the day of the shooting and drove by the victim's house. He then said he waited in front of the victim's residence rather than merely driving by.

         {¶12} Eventually, Appellant claimed he waited until the victim drove up with another man; although, the detective remembered the front passenger seat of the victim's vehicle was filled with items. Appellant said he heard a gunshot from the basement, he did not see the shooting, and he fled the scene because he was scared. He apologized for not calling the police. Thereafter, he said he witnessed the shooting, which prompted the shooter to threaten Appellant's life and say his wife would learn of the affair if Appellant implicated him in the shooting.

         {¶13} Finally, Appellant admitted he was the person who shot the victim. The detective asked if Appellant staged the scene to look like a robbery. In response, Appellant said the victim was upset about missing money and was opening drawers while Appellant was insisting he did not take it. Regarding another topic of argument, Appellant recited: the victim had been asking him to leave his wife for some time; he loved the victim but also loved his wife and kids; he told the victim he had no thoughts of leaving his family for the victim; and he informed the victim they had to discontinue the affair. According to Appellant, the victim flipped out, smacked him with both hands, told him to leave his wife, yelled about how Appellant "fucked with" his emotions for so long, and then started waving and pointing a Derringer at him.

         {¶14} Appellant said he grabbed the gun and pushed the victim back. He said the victim then rushed at him. He said he felt threatened and shot the victim, first in the top of the head and then in the back of the head after the victim was down. The detective observed how Appellant motioned as if he first shot the victim across the top of the head from the front, but the wound showed this shot was fired from the back. Appellant then demonstrated a maneuver that put the victim bending at the waist as Appellant pushed him down and fired down at his head at the same time. He then demonstrated the second shot occurred as he stood over the victim who was on his knees with his head on the ground.

         {¶15} The detective informed Appellant his status had changed, and Mirandized Appellant. Appellant told his story to another officer and provided a written statement. The entire interview was recorded, and the recording continued after Appellant's wife entered the interview room and conversed with Appellant.

         {¶16} Appellant was indicted for aggravated murder with a firearm specification. At the 2018 jury trial, the complete recording of Appellant's statement at the police station was played to the jury. The detective testified Appellant was not crying as much as he made it appear. (Tr. 1002). The detective voiced the evolving statements led him to believe Appellant planned an ambush after luring the victim home with a promise of a sexual encounter and then staged the scene. (Tr. 982, 986). He noted after Appellant said he threw the gun from the car while driving home from the shooting, a search of the specific stretch of road described by Appellant did not yield the gun. (Tr. 947-948).

         {¶17} Regarding Appellant's claim that the victim owned the Derringer and usually kept it on the hot tub, a friend testified the victim was frightened of guns but decided to purchase one with Appellant for self-defense around Thanksgiving of 2016. (Tr. 885-886). Another witness (the fiancé of the victim's mother) knew the victim owned one firearm and kept it in his room. (Tr. 392, 308). A police officer who knew the victim testified the victim recently asked for his advice on obtaining a concealed carry permit and on buying his first gun. The victim thereafter said he purchased a Hi-Point 9mm, which he fired at a range. (Tr. 557-562). The gun found in the victim's nightstand was a 9mm Hi-Point semiautomatic pistol, and two magazines of 9mm ammunition were in the drawer with the gun. (Tr. 349-350, 389-390, 481, 713-714). The detective noted they did not find a holster for a Derringer (which he said would be dangerous to carry in a pocket) or .22 caliber ammunition at the victim's house. (Tr. 912-913). Bullets for a .22 and a 9mm cannot be used interchangeably. (Tr. 482). They did find a box of .22 caliber long rifle ammunition in Appellant's truck. (Tr. 865, 951); (St Ex. 137, 141).

         {¶18} A detective who examined Appellant's phone testified to communications between Appellant and the victim: the victim accused Appellant of lying in 2016; intimate photographs were exchanged; and the victim seemed upset Appellant did not spend more time with him in 2017, but no texts seemed angry or threatening. (Tr. 849-850). On the day of the shooting: they texted each other to say "morning" and ask about the prior night; the victim texted "hi" at 1:31 p.m.; and Appellant called the victim three times with the longest call lasting less than two minutes. At 1:45 p.m., the victim texted, "Don't forget my surprise, LOL." (Tr. 835-837). After leaving the victim's house, Appellant texted the victim at 3:13, "We will be bringing it out," and then at 3:26, "Stopped by. You weren't home yet. Call me when you get there and will come out." (Tr. 838-840). Appellant then called the victim's phone various times.

         {¶19} Appellant's wife testified Appellant brought her and her children to a restaurant and a store on the Sunday they found the victim. He then left them at home for a time and used her car. (Tr. 574). When he returned, she did not notice anything strange or suspicious about him other than the fact that he helped her dye her hair. (Tr. 575). She said they then took Appellant's truck to the victim's house, which she claimed they planned the prior day. (Tr. 574).

         {¶20} The defense called another friend of the victim to testify. He believed that many years before he heard the victim mention buying a Derringer; he remembered making a joke about the small size of a Derringer but noted he never saw the gun. (Tr. 1044-1047). He said if the victim got upset, he would yell and waive his phone around but would then "go cry in the corner." (Tr. 1039-1040). The victim was not the type to start a physical fight. (Tr. 1048). The victim paid Appellant for work around the house, but Appellant did not complete it. (Tr. 1042). The victim was upset Appellant had to "back off" when his wife became suspicious and was upset when Appellant wanted to break up but stay friends. (Tr. 1041-1043). At the end of 2016, the victim was thinking of exposing the affair to Appellant's wife; he talked about sending her messages and photographs exchanged between himself and Appellant. (Tr. 1042). When he learned Appellant spoke about possibly killing himself due to the situation, the witness told the victim not to push so hard and just accept the relationship as it existed. The victim joked his friend should read the news and check on him more often. (Tr. 1052).

         {¶21} The defense presented the testimony of a forensic pathologist who confirmed the testimony of the state's forensic pathologist that: there was no scientific way to determine which wound occurred first; the bruises on the victim's forehead and cheek were likely from the fall after the shooting; and the bruising on the eye was likely from internal blood pooling. (Tr. 1072, 1081). He said the gunshot residue pattern for the fatal wound would have been very unlikely if the gun was a foot or more away from the head (as indicated by Appellant's demonstration for the detective). (Tr. 1079, 1086-1087). He believed the fatal shot was fired at a distance of no more than three inches. (Tr. 1078). As for the first shot, this witness testified that if the victim's head was facing down and if Appellant was standing in the position he indicated, then the scalp fragment would not likely have ended up on the washing machine. (Tr. 1097-1098). He also opined it was probable the event was dynamic with the bodies in motion. (Tr. 1097).

         {¶22} In response to the expert report provided by the defense, a BCI agent testified that predicting tissue trajectory from a gunshot would not be scientifically reliable in this case. (Tr. 786). He opined a shooting reconstruction was not possible as bodies move, guns can create violent explosions of tissue, and tissue is unpredictable. (Tr. 775-776). He also noted the prediction from the defense expert was that scalp tissue would not fly to the washing machine "if" the victim's head was facing down at impact. (Tr. 785).

         {¶23} Appellant also presented the testimony of a forensic psychiatrist who opined that Appellant experienced Acute Stress Disorder after the shooting, which could explain some of his poor choices after the event. (Tr. 1136-1144). In rebuttal, the state presented expert testimony from another forensic psychiatrist who disagreed with the diagnosis. (Tr. 1180-1181).

         {¶24} The jury found Appellant guilty of aggravated murder with a firearm specification. A presentence investigation was ordered. The court imposed a sentence of life without parole for aggravated murder plus three years for the firearm specification. Appellant filed a timely notice of appeal from the February 15, 2018 sentencing entry and filed a 55-page brief with leave of court.

         ASSIGNMENT OF ERROR ONE: SUFFICIENCY

         {¶25} Appellant sets forth ten assignments of error, the first of which contends:

"DEFENDANT-APPELLANT'S AGGRAVATED MURDER CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF PRIOR CALCULATION AND DESIGN."

         {¶26} Whether the evidence is legally sufficient to sustain a conviction is a question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency review as the question is whether the evidence is sufficient if believed. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001) In other words, sufficiency involves the state's burden of production rather than its burden of persuasion Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J, concurring).

         {¶27} A conviction cannot be reversed on the grounds of insufficient evidence unless the reviewing court determines, after viewing the evidence in favor of the prosecution, that no rational juror could have found the elements of the offense proven beyond a reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). Rational inferences to be drawn from the evidence are also evaluated in the light most favorable to the state. See State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999). Even erroneously admitted evidence can be considered to determine whether the evidence was sufficient to sustain the guilty verdict. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80; Lockhart v. Nelson, 488 U.S. 33, 35, 38, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). This relates to the principle that a defendant cannot be retried if the evidence was insufficient, but the remedy for the erroneous and prejudicial admission of evidence is a new trial with exclusion of the evidence. See id.

         {¶28} The elements of the pertinent type of aggravated murder are to cause the death of another purposely and with prior calculation and design. R.C. 2903.01(A). Appellant challenges the sufficiency of the evidence on the element of prior calculation and design, applying the Ohio Supreme Court's Walker case. In Walker, the Supreme Court adopted statements made by the Ohio Legislative Service Commission when the statute changed from "deliberate and premeditated malice" to "prior calculation and design." For instance, the element prior calculation and design requires "an act of studied care in planning or analyzing the means of the crime, as well as a scheme compassing the death of the victim." State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 17. The "advance reasoning to formulate the purpose to kill" cannot be mere "momentary deliberation." Id. at ¶ 17-18. Still, the pre-offense degree of care and length of time spent pondering the act need not be great and are among many factors to consider. Id. at ¶ 17

         {¶29} Traditional factors to consider include: (1) the relationship between the defendant and the victim and any strain; (2) the thought or preparation involved in choosing the murder weapon or site; and (3) the length of time surrounding the act, i.e., prolonged, a nearly instantaneous eruption of events, or somewhere in between. See id. at ¶ 20. Prior threats are pertinent, including a threat to obtain a weapon. Id. at ¶ 21. "Pursuing and killing a fleeing or incapacitated victim after an initial confrontation strongly indicates prior calculation and design." Id. The style of a shooting, such as an "execution-style" killing, can be an additional indicator. Id. at ¶ 21-22. A review of the factors helps a court determine whether the jury could reasonably infer from the evidence that the defendant planned the murder with prior calculation and design. See id. at ¶ 26.

         {¶30} In Walker, the Court concluded that although the jury could reasonably infer the defendant had a purpose to kill the victim, the jury could not reasonably infer prior calculation and design when considering the totality of the circumstances, including: the defendant did not know the victim; the defendant did not choose the site as they happened upon each other at a bar; a bar fight broke out while the defendant was already armed; he originally used a fist and a bottle during the fight; the scene quickly escalated into a chaotic free-for-all; the defendant backed away and hid behind a pillar twenty seconds before the shot; a single shot was fired; and the events were recorded by surveillance video. In distinguishing between the presence or absence of prior calculation and design, there is no bright-line test, and each case depends on its own particular facts. Id. at ¶ 19.

         {¶31} Appellant contends a reasonable juror could not find prior calculation and design by claiming: the relationship between him and the victim was not more strained than usual; there was no history of Appellant being violent or making threats; the victim owned the weapon used in the shooting and introduced it into an argument; the scene of the shooting was the victim's own house; the meeting was prearranged rather than an ambush; the theory the victim was "lured" by the Appellant's promise of sex was unsupported; the DNA on a used condom in the bedroom trash did not belong to Appellant; the scalp wound would not be considered execution-style and suggested a struggle; the situation was an unexpected and instantaneous eruption of events; Appellant's demonstration of the events was not a perfect recreation of the shooting, which the physical evidence shows was more dynamic than he suggested; the victim was only home for 16 minutes before Appellant left the scene; and Appellant's DNA was not found on the drawer handles which counters the theory that he staged the scene to look like a robbery.

         {¶32} As for the relationship and motive, it is relevant that Appellant was married with three children he considered his own, and he had been having a sexual relationship with his best friend for years. The victim wanted Appellant to leave his wife. Appellant believed his wife did not know of the relationship. Although she voiced a suspicion to Appellant months before, he apparently assured her they were nothing but friends. He feared she would discover the truth. One of Appellant's initial stories suggested his fear was strong: he said he fled the scene of the shooting without calling the police after an unidentified man shot the victim and made threats to Appellant including a threat to expose Appellant's homosexual affair. Although he later admitted this story was untrue, it reveals what he characterized as a strong threat and motivator to him. Around the time of the shooting, the victim was also accusing Appellant of taking money from his house.

         {¶33} The 16 minutes during which the victim was home before Appellant left the scene does not necessarily work in Appellant's favor as he claims. He was at the victim's house for almost an hour before the victim arrived, even though he knew the victim would not be home that early. In general, Appellant had sufficient time and opportunity for planning. Additionally, after the victim heard from Appellant, he seemed excited to leave a family dinner early to meet Appellant. He disclosed they were going to take a "nap" (in a manner causing the victim's cousin to believe the encounter would be sexual). Around this time, the victim texted Appellant suggesting he was excited about a "surprise" Appellant had apparently mentioned to him. Yet, Appellant claimed he went there to tell the victim they could not continue their affair.

         {¶34} Regarding the weapon, the jury need not believe it belonged to the victim. There was testimony the victim recently bought his first gun, a 9mm Hi-Point, which was recovered from his nightstand, with two magazines of 9mm ammunition. In the victim's house, .22 caliber ammunition could not be located, but .22 caliber ammunition was located in Appellant's truck. Appellant said he had a .40 caliber firearm, and a shotgun (with shells) was found in the truck as well. Appellant claimed the victim kept a loaded .22 caliber firearm on the hot tub, but there was testimony indicating: the mother's fiancé knew the victim kept his firearm in his room; a friend never saw a gun left out in the victim's house; Appellant reported he was at the victim's house the day before the shooting with a child (his stepson); and his wife testified they had plans to bring another child (his stepdaughter) to the victim's house on the day of the shooting.

         {¶35} Moreover, as the state points out, the fatal wound could be considered execution-style. In fact, there was gunshot residue around both wounds. Appellant said he shot the victim in the top-back of the head first. This wound would not have been fatal had Appellant called for help. Appellant admitted he then shot the victim in the back of the head as the victim was on the floor. A second, more centered shot to the back of the head once the victim was already shot in the head and down on the ground suggests preplanning. Contrary to Appellant's contention, the nature of the first shot (which entered from the back of the top of the scalp) does not require one to conclude there was a fight or a lack of pre-planning merely because it was not accurately aimed to penetrate the brain. The shooting occurred in a cluttered basement-garage in a cramped space. The area behind the victim was more suitable for hiding than conversing. And, Appellant was ten inches taller than the victim.

         {¶36} Furthermore, the victim was not considered the type of person to start a physical fight and was not comfortable with a gun. The shooting occurred in the basement rather than on the main floor of the house where the drawers were askew. A staged robbery, although occurring after the shooting, can be a factor to consider under the totality of the circumstances. As the state points out, the inability to retrieve Appellant's touch DNA from the drawer handles was not some major fact in Appellant's favor; the forensic scientists could not find a significant source on most swabs to match even the victim's DNA.

         {¶37} Certain actions, not just before or during but also after a shooting, can support a determination of a pre-existing scheme or plan. Although the evidence indicated Appellant arrived at the victim's house an hour before the victim, he did not respond to the victim's earlier text, "Don't forget my surprise, LOL," until minutes after leaving the body at the house at which time he responded, "We will be bringing it out." Appellant spoke of a prior plan to bring the victim a weed trimmer. Yet, he traveled more than 30 minutes from his house to the victim's house before the shooting without bringing this item. Three hours after the shooting, he then went back to the house with the item, bringing his wife and her child with him to discover the body and call the police. He also drove his wife's car to the shooting, but drove his truck back to the scene later. During the interim, he did not seem shocked or nervous to his wife (who was in his close presence as he helped dye her hair).

         {¶38} As can be seen, some of Appellant's contentions under his sufficiency assignment of error involve credibility or weight of the evidence, which is the subject of his next assignment of error. Appellant changed his story multiple times. There is no requirement that one accept as entirely true his last story about them arguing and him disarming the victim. Circumstantial evidence inherently possesses the same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001) (and because a defendant's intent dwells in his mind, the surrounding facts, circumstances, and resulting inferences are all used to demonstrate intent). In fact, "[a] conviction can be sustained based on circumstantial evidence alone." State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991). Viewing all of the evidence and rational inferences in the light most favorable to the prosecution, a rational juror could find that Appellant purposely caused the victim's death with prior calculation and design. In accordance, this assignment of error is overruled.

         ASSIGNMENT OF ERROR TWO: WEIGHT

         {¶39} Appellant's second assignment of error alleges:

"DEFENDANT-APPELLANT AGGRAVATED MURDER CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

         {¶40} 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." Thompkins, 78 Ohio St.3d at 387. Weight depends on the effect of the evidence in inducing belief but is not a question of mathematics. Id. A weight of the evidence review considers whether the state met its burden of persuasion. See id. at 390 (Cook, J., concurring) (as opposed to the burden of production involved in a sufficiency review).

         {¶41} When a defendant claims the conviction is contrary to the manifest weight of the evidence, the appellate court is to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387. Nevertheless, this discretionary power of the appellate court to grant a new trial on these grounds is to be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id.

         {¶42} Additionally, where a case was 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. Thompkins, 78 Ohio St.3d at 389, citing Ohio Constitution, Article IV, Section 3(B)(3). The power of the court of appeals to sit as the "thirteenth juror is limited in order to preserve the jury's role with respect to issues surrounding the credibility of witnesses and the weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 389.

         {¶43} "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position from which to weigh the evidence and judge the witnesses' credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally proceed under the premise that when more than one competing interpretation of the evidence is available and the one chosen by the jury is not unbelievable, we do not choose which theory we believe is more credible and impose our view over that of the jury. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

         {¶44} Appellant refers this court to the arguments he presented under his sufficiency assignment of error on the element of prior calculation and design. We already discussed various arguments in the first assignment of error where Appellant placed them. Whether the victim owned a .22 caliber firearm, kept it on a hot tub, or pointed it at Appellant during an argument in the basement were jury questions. The victim's excitement to meet Appellant was at odds with Appellant's expressed reason for meeting the victim, suggesting Appellant gave the victim the impression of a rendezvous. As the state points out, it does not seem credible that Appellant would plan to bring his wife and her child to the victim's house later that day if he was planning to end the affair earlier in the day. Appellant arrived well before the victim, and the shooting occurred soon after the victim arrived. The question of a staged robbery was a jury question. As previously observed, the lack of Appellant's DNA on drawer handles does not mean he did not open them; the victim's DNA could not be discovered on most of them either and he lived there. And, if an argument was occurring on the first floor while the victim was opening his cupboards and drawers, it is questionable why both Appellant and the victim would then end up in the small area in the basement by the hot tub.

         {¶45} Appellant urges a person would not plan to shoot his best friend at that friend's house in the middle of a Sunday afternoon in May when people are likely to be outside. He notes he admitted to the shooting but did not confess to a planned event. Again, the jury was not required to believe the final story Appellant related to the police. Even that story placed him standing above an incapacitated victim who had been shot in the back/top of the head and firing a second, more centered, and fatal shot into the back of the victim's head. We note Appellant wished the jury to disbelieve certain aspects of his story. That is, he demonstrated that he stood above the victim who was on the floor for the second shot; but, the victim's second wound displayed a gunshot residue pattern suggesting a closer or angled contact wound. He sought to have this interpreted as meaning the second shot actually occurred during the struggle (rather than as he demonstrated it). However, one could reasonably find the fatal shot occurred as Appellant stood over the incapacitated victim but then bent down to ensure the second shot did the job the first shot failed to do. Jurors are free to believe some, all, or none of the testimony of each witness, and they may separate the credible parts of the testimony from the incredible parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971).

         {¶46} Appellant also suggests the scalp tissue would not have traveled through the air to the washing machine if he was pressing the victim down by the head but states it could have landed there if the motion was a dynamic pushing of the victim. The tissue also could have traveled by the violent explosion of a gunshot wound if the victim was walking through his basement when he was shot through the top of his hat and head, causing his hat to land on the hot tub with part of the dislodged scalp tissue remaining just outside the exit hole in the hat. Plus, Appellant's forensic pathologist found physics would not support the tissue location if the victim's head was faced to the floor. He did not opine on the physics of the matter if the victim was walking or standing and was shot from behind at a close or intermediate range. In any event, a BCI agent warned that scene recreation from tissue trajectories may not be scientifically reliable in this case.

         {¶47} As previously noted, circumstantial evidence inherently possesses the same probative value as direct evidence. Treesh, 90 Ohio St.3d at 485. Upon reading the entire transcript and viewing all of the evidence presented, including that set forth in the Statement of the Case above, we conclude the verdict is not contrary to the manifest weight of the evidence. The jury did not lose its way in finding Appellant guilty of aggravated murder. This assignment of error is overruled.

         ASSIGNMENT OF ...


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