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State v. Flemming9/5/1996
mended that appellant be sentenced to life imprisonment with parole eligibility after serving thirty years.
The trial court sentenced appellant on June 6, 1994 in accordance with the jury's recommendation. The court also sentenced appellant to an additional three years of incarceration on the firearm specification, to be served consecutively with the life imprisonment sentence, and to an indefinite term of ten to twenty-five years on the aggravated robbery charge, to be served consecutively to the other sentences.
III.
Appellant appeals from the guilt phase of the trial, and assigns the following errors for this court's review:
I. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING IMPROPER OPINION EVIDENCE ON THE ISSUE OF WHETHER A ROBBERY HAD TAKEN PLACE. Evid. R. 702; Evid. R. 403(A)
II. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING IRRELEVANT TESTIMONY ABOUT GANG ACTIVITIES. Evid. R. 401, Evid. R. 402, and Evid. R. 403(A)
III. THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING IRRELEVANT TESTIMONY ABOUT A POLICE COMMEMDATION AWARD GIVEN TO OFFICERS OLIVER AND WILLIAMS. Evid. R. 401, Evid. R. 402, and Evid. R. 403(A)
IV. APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT.
V. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER.
VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE DEFENSE OF ACCIDENT.
VII. APPELLANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
VIII.THE JUDGMENT OF CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
A.
Appellant's first three assignments of error relate to the admission of testimony at trial. He argues that Officer Reuse's testimony that Batista appeared to be a victim of a robbery, Officer Brantley's testimony about gang activities, and Officer Oliver's testimony that he and Officer Williams were up for commendation, denied him a fair trial. Appellant recognizes that his argument is reviewable under a plain error analysis.
As stated by the Supreme Court of Ohio,
It is a general rule that an appellate court will not consider any error which counsel for the party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Campbell (1994), 69 Ohio St.3d 38, 40, citing State v. Childs (1968), 14 Ohio St.2d 56.
Such an error is waived and can only be recognized if it rises to the level of plain error under Crim.R. 52(B). The rule of plain error may only be invoked in rare cases and no error constitutes plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. Campbell, 41; see State v. Joseph (1995), 73 Ohio St.3d 450; State v. Moreland (1990), 50 Ohio St.3d 58.
Regarding Officer Reuse's opinion that Batista was the victim of a robbery, Evid.R. 701 provides that a lay person may provide opinion testimony when his opinion is rationally based on his perceptions, and where it is helpful to a clear understanding of his testimony or the determination of a fact in issue. State v. Stout (1987), 42 Ohio App.3d 38, 42. This rule means that "the witness must have firsthand knowledge of the subject of his testimony and the opinion must be one that a rational person would form on the basis of the observed facts" and the "testimony must aid the trier of fact in understanding the testimony of the witness or in de
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