412 F.Supp. 1357 (1976)
RANSBURG CORPORATION, Plaintiff,
v.
AUTOMATIC FINISHING SYSTEMS, INC., Defendant.
Civ. A. No. 68-1320.
United States District Court, E. D. Pennsylvania, Civil Division.
March 31, 1976.
*1358 Robert L. Harmon, Clyde F. Willian, Chicago, Ill., Robert J. Zinn, John T. Synnestvedt, Philadelphia, Pa., for plaintiff.
Edward Lovett Jackson, Joseph Gray Jackson, Eugene Chovanes, Bala Cynwyd, Pa., for defendant.

OPINION
DITTER, District Judge.
In this patent matter, the present question is whether the manufacturer of an allegedly infringing device so controlled the litigation of a prior suit involving identical *1359 patents as to be bound in this case by the decision in that one.[1] Pursuant to Rule 52(a), Federal Rules of Civil Procedure, I make the following:

FINDINGS OF FACT
1. Plaintiff, Ransburg Corporation[2] ("Ransburg") is an Indiana corporation with its principal office in Indianapolis.
2. Ransburg's business primarily involves methods and equipment for electrostatic spray coating, the foremost of which, Ransburg No. 2 Process, is the subject of the patents in this suit.[3]
3. In each of the following decisions some or all of the claims of some or all of the patents here in suit were adjudged valid and infringed: Binks Manufacturing Company v. Ransburg Electro-Coating Corp., 281 F.2d 252 (7th Cir. 1960), cert. dismissed, 366 U.S. 211, 81 S.Ct. 1091, 6 L.Ed.2d 239 (1961); Ransburg Electro-Coating Corp. v. Proctor Electric Co., 317 F.2d 302 (4th Cir. 1963);[4]Ransburg Electro-Coating Corp. v. Standard Container Co., 167 U.S.P.Q. 426 (M.D.Ga.1970); Ransburg Electro-Coating Corp. v. Williams, 246 F.Supp. 626 (W.D. Ark.1965); and Ransburg Electro-Coating v. Ford Motor Co., 245 F.Supp. 308 (S.D.Ind. 1965).
4. In Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corp., 395 F.2d 92 (4th Cir. 1968), it was held that the defendant, which had been enjoined from infringing plaintiff's patents on electrostatic spray painting systems, was not guilty of contempt in producing and marketing devices in which the dependence upon electrostatic forces to atomize paint was so insubstantial and minimal that it did not exceed employment of those forces under the prior state of the art.
5. Defendant, Automatic Finishing Systems, Inc. ("AFS"), is a New Jersey corporation with its principal place of business in Cinnaminson, New Jersey.
6. AFS manufactured and sold certain equipment and equipment components to Lansdale Finishers, Inc. ("Lansdale"), the Standard Container Company ("Standard"), and other businesses. AFS installed such equipment at Lansdale's plant in Lansdale, Pennsylvania, at Standard's plants in New Jersey and Georgia, and elsewhere.
7. In 1967, Ransburg brought suit against Standard in the United States District Court for the Middle District of Georgia for infringement of Ransburg's patents by reason of Standard's use of an AFS electrostatic spray coating system. See Ransburg v. Standard Container Co., supra.
8. The Standard case was tried in October, 1969. On March 27, 1970, the court entered its Findings of Fact and Conclusions of Law and on April 20, 1970, granted an Interlocutory Judgment holding the Ransburg No. 2 Process patents, the same patents at issue in this suit, valid and enforceable, *1360 and infringed by Standard's utilization of the AFS System.
9. Although AFS was not a formal party to the Standard suit, the court found AFS to be guilty of inducement and contributory infringement, and enjoined further such infringement.
10. Although a notice of appeal was filed, it was not pursued, Ransburg and Standard ultimately arriving at a settlement. On January 5, 1971, the Georgia court entered an order making the Interlocutory Judgment final.
11. Chief Judge Bootle, before whom Standard was tried, was aware of the instant action against AFS. Accordingly, he made certain findings concerning AFS' participation in the suit against Standard, including the following:
5. Automatic Finishing Systems, Inc. ("AFS"), a New Jersey corporation with its principal place of business in Palmyra, New Jersey, manufactured the accused electrostatic spray coating system and sold it to defendant (Tr. 3). AFS has actively and openly assisted in the defense of this action. (PX 53, p. 146-52, 170, 248, 235-55, 269; PX 54, p. 34-42; Tr. 506-12, 521).
6. AFS agreed with defendant that AFS would pay all litigation costs in the present action (Tr. 506; PX 54, p. 34, 39) including the fees of an expert witness, Dr. Kusko (Tr. 507), and any damages which may be assessed against defendant (Tr. 506). Defendant's trial counsel has also been retained by AFS to defend an action brought by Ransburg against AFS in Philadelphia (Tr. 506), and AFS has agreed to pay his fees in both cases. No officer or employee of defendant appeared as a witness or attended the trial of this case, but the president (Tr. 501) of AFS, Gallen, and one of its key employees (Tr. 501), Monroe, were daily present in court, while an AFS vice-president, Lanchak (Tr. 502) attended portions of the trial. The tests used to develop much of defendant's evidence (e. g. DX 23, 24, 37 & 38) were conducted at Lanchak's place of business in New Jersey (Tr. 520-21), and no employee or officer of defendant was present at the tests (Tr. 521).
7. Ransburg's interrogatories (PX 55) and requests for admissions (PX 56) were never submitted to defendant for consideration because defendant's counsel knew that defendant had no information relating to them (PX 54, p. 50); rather, draft responses were prepared by trial counsel and submitted to Gallen (Tr. 508-10) and Monroe (PX 51, p. 64) for their opinion, after which they were signed by trial counsel. The accused system, which was purchased from AFS in 1965 (Tr. 473), was used by defendant in New Jersey for approximately 3 months (PX 51, p. 7) and in Homerville, Georgia, for one, possibly two, seasons (PX, p. 30). Defendant's stake in this action is less than that of AFS. At one time defendant's counsel indicated that AFS might attempt to intervene, but such attempt did not materialize.
12. Chief Judge Bootle refused Ransburg's request for a finding that AFS actually controlled the defense in Standard. Reasoning that such a finding would not be binding upon any other court which might be confronted with the question, he stated:
It's better to leave such Court untrammeled. Such Court before whom res judicata or collateral estoppel is urged may be in a better position than this Court to make a correct finding on this question because it may have the benefit of additional facts. See Marshall Metal Products v. Aghnides, 126 F.Supp. 849 [850] (S.D.N.Y.1954); Schnell v. Eckrich & Sons, 365 U.S. 260, 81 S.Ct. 557 [5 L.Ed.2d 546] (1961); Minneapolis-Honeywell Regulator Co. v. Thermoco, Inc., 116 F.2d 845 (2d Cir. 1941); 1B MOORE'S FEDERAL PRACTICE, ¶ 0.411[6] at 1571. But see Brock v. Brown, 138 F.Supp. 628 (D.Md.1956).
13. At trial of the instant action, Thomas Gallen, president of AFS, admitted he had no basis for denying the accuracy of Chief Judge Bootle's findings 5 through 7 with one exception, specifically that Dana *1361 Raymond, Esquire, defendant's trial counsel in the suit before Chief Judge Bootle, had also been retained by AFS in the instant case.
14. Testimony by both Mr. Raymond and Mr. Gallen denying that Mr. Raymond had been retained to represent AFS in the present suit[5] sharply conflicts with previous statements made by both men.
15. In a deposition taken in the Standard suit in July, 1969, Mr. Raymond stated that his appearance had also been entered in the suit brought by Ransburg against AFS in Philadelphia. And in his opening statement in the Standard trial, he advised Chief Judge Bootle, "I am of counsel for AFS in the Philadelphia action."
16. Prior to trial of the case at bar, AFS admitted in response to Ransburg's Request No. 11 that the same counsel originally had been retained to defend both suits although this arrangement was "changed recently due to a shortage of funds." Moreover, Mr. Gallen stated flatly at the Standard trial that he had hired Mr. Raymond as his counsel. In a deposition taken for the present case, Mr. Gallen acknowledged there "was a meeting of the minds" as early as July, 1969 (well before the Standard trial), that Mr. Raymond would represent AFS in this suit, and that Mr. Raymond ceased to represent AFS only after the decision was made not to pursue the appeal in Standard.
17. Even if Rule 36(b), Fed.R.Civ.P.,[6] would permit AFS to disavow Admission 11, independent evidence demonstrates that AFS engaged Mr. Raymond to represent it in this action until a shortage of funds on the part of AFS forced his withdrawal.[7]
18. The significant degree to which AFS participated in Standard's defense in the Georgia suit is in marked contrast with Standard's own conduct. William M. Vogel, Jr., the president of Standard, testified that his company preferred not to become involved in the matter. He stated that since AFS had agreed to pay all expenses he had no objections to Mr. Raymond's litigating the suit, but that for its part, Standard would pay nothing.[8] No one at Standard was regularly apprised of the progress of the suit, nor did any employee of Standard *1362 assist in the preparation for trial or attend the trial. After the court rendered its decision, Mr. Vogel sent Ransburg's settlement proposal to Mr. Gallen because "[s]ince he was in charge of litigating or they had taken over the suit finally as we were involved in, I thought he should have this information."
19. AFS actively and openly assisted in the Standard defense. Draft responses to interrogatories and requests for admissions were submitted by Mr. Raymond to Mr. Gallen for his opinion. Mr. Gallen made written suggestions for tests, and tests were conducted at the plant of an AFS stockholder. Mr. Gallen hired a photographer for these tests, and paid the fees of Standard's expert witness. Prior to trial, Mr. Raymond had numerous communications with AFS and its Atlanta attorney, Leo C. Krazinski, Esquire, which communications included requests for comments and "plans on how to proceed." Mr. Gallen and another AFS employee were continuously in court during the Standard trial, and the vice-president of AFS attended part of the trial.
20. When the district court rendered its decision adverse to Standard, Mr. Raymond sent a copy of the opinion to Mr. Gallen, with the comment: "Here is a copy of the bad news. As you know, I am stunned. I will be in touch with you soon on what course to pursue." Mr. Gallen responded with extensive written comments on the decision.
21. After the Standard trial, Mr. Raymond sent AFS a single billcovering all services and disbursementsin the amount of $38,500. AFS made a single payment of $500., leaving Mr. Raymond with an unpaid balance of $38,000. Without ever discussing the unpaid bill with Mr. Gallen, Mr. Raymond has written it off.
22. Although Standard was Mr. Raymond's titular client, and although he could not have been bound by any private arrangement between AFS and Standard, he never attempted to collect from Standard, and Standard paid him nothing. Indeed, he never even made known to Standard the amount of his bill.
23. After the adverse decision in Standard, by the district court, Mr. Raymond filed a notice of appeal, but when it became apparent that AFS could not afford to continue to finance the case, the appeal was dropped.[9]
24. When Standard realized that it might have to pay a large bill, it ordered Mr. Raymond to bring the matter to a halt. Mr. Raymond was not privy to any discussions at Standard concerning pursuit of the appeal, nor was he involved in the settlement between Ransburg and Standard; he was simply told to drop the appeal.
25. Although Mr. Gallen recognized that the decision not to pursue an appeal was detrimental to AFS, he made no inquiries. As he testified, "I felt when you owe people so much it is kind of hard to even talk to them."
26. In all important respects, AFS controlled the conduct of Ransburg Electro-Coating Corp. v. Standard Container Co., supra, and Standard exercised no control whatever. The instant case and Standard involve identical patents, identical causes of action, and identical claims for relief.

*1363 DISCUSSION
The well-settled rule of law, as contained in Section 84 of the Restatement of Judgments, is that:
[a] person who is not a party but who controls an action individually or in co-operation with others, is bound by the adjudications of litigated matters as if he were a party if he had a proprietary or financial interest in the judgment or in the determination of a question of fact or of a question of law with reference to the same subject matter or transaction; if the other party has notice of his participation, the other party is equally bound.[10]
The rationale for the rule is, of course, that an individual is entitled to only one adjudication of a cause of action or of an issue where he has control of the proceedings. Where a non-party has control over or participates in the control of the proceedings, it is not unfair that the judgment or adjudication should determine the existence and the extent of interests which are dependent upon the determination of issues in the action leading to the judgment. Restatement of Judgments § 84, comment a.
Central to the invocation of this principle is the factual question of the sufficiency of the non-party's control and participation in the litigation. The burden of affirmatively proving sufficient control rests upon the party seeking to invoke the conclusive force of the judgment. 1B Moore's Federal Practice ¶ 0.411[6] at 1567. Merely instigating litigation, even coupled with activity as an amicus curiae, is insufficient to establish control. Nor is a non-party's participation sufficient if he merely assists or cooperates in the prosecution or defense by providing funds for the payment of expenses of litigation. Restatement of Judgments § 84, comment e; 1B Moore's Federal Practice ¶ 0.411[6], at 1565.[11] That a non-party in a patent case well may elect to go much further than merely funding legal expenses, however, was recognized in Bros., Inc. v. W. E. Grace Mfg. Co., 261 F.2d 428 (5th Cir. 1958), where the court said:
This is particularly so in patent infringement cases in which, from tactical or strategic considerations relating to venue, desirability of a particular forum and the like, such cases are so often filed and tried against a dealer, a seller, a distributor, or a user of the accused device manufactured by another. If the manufacturer stands aloof, he risks a judgment adverse to his interest resulting perhaps from inadequate or incompetent defense by one who has a secondary interest. Such judgment, to be sure, would normally not be binding by estoppel or res judicata, but it would take its place in the jurisprudence where its practical effect as stare decisis might be as decisive. The alternative, of course, is to jump in and give the case full and active defense as though the manufacturer were the real named party. This assures that the issues will be presented and contested in a way deemed most effective by the nominally remote, but practically immediate, party at interest.
Where that course is followed and the non-party actively and avowedly conducts the defense, manages and directs the progress of the trial at its expense and under its supervision, the outcome, which if favorable would have redounded to his benefit, if adverse becomes sauce for *1364 goose and gander alike, and binding under principles of res judicata. [citations omitted].
Id. at 430.
Equally inadequate, in Professor Moore's view, is a showing that the non-party provided counsel or procured witnesses or evidence unless by such assistance he acquired the requisite degree of control. The prerogative to decide whether or not to appeal from an adverse appeal is crucial to, and indicative of control. However, as previously mentioned and emphasized by the Restatement and Professor Moore, the nonparty's control need not be absolute. Joint control by non-parties or in conjunction with a party is sufficient. Even the fact that the party whose action or defense the non-party controls could withdraw consent to his exercise of control and therefore terminate the non-party's control at any time does not affect the rule. "[A]s long as such consent exists, the control is as effective as if the consent were non-terminable." Restatement of Judgments § 84, comment e.
Guided by these principles, I cannot but conclude that AFS exercised sufficient control over Standard's defense in the Georgia action as to dictate that AFS be bound by the judgment therein. From the outset, Standard abdicated all responsibility with respect to the defense of the suit. As long as AFS was able and willing to foot the bills, Standard fully acquiesced in its litigation of the suit. AFS has produced not even a scintilla of evidence to show that Standard had any control whatever over the conduct of the matter. On the contrary, it was Thomas Gallen who expended enormous time and efforts in preparing for and attending the trial. It was Mr. Gallen with whom Dana Raymond collaborated in preparation for the lawsuit, and with whom he communicated after the district court rendered its decision. And it was Thomas Gallen who; had he possessed adequate funds, would have pursued the appeal.
That Standard ultimately ordered Mr. Raymond to halt the appeal is inconsequential. Had Mr. Gallen been able to fund an appeal, all available evidence implies that Standard would have been perfectly willing to allow him to do so. The decision not to appeal was, as a practical matter, Mr. Gallen's decision, dictated as it was by his economic predicament. Put succinctly, since Mr. Gallen could not afford to appeal, Standard opted to settle. Mr. Gallen and his associates exercised as much control as any party to the Georgia action could have; they "jumped in and gave the case full and active defense," to borrow Judge Brown's language. Accordingly, AFS must be bound by the Georgia determination.
Subsequent to trial the parties have engaged in a battle of memoranda in which two additional issues were controversed first, whether this court erred in not deciding the claim of estoppel on the basis of Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corp., supra; and second, whether the court erred in refusing to allow the defendant to attack the validity of Ransburg's patents with certain so-called "Russian documents."
By virtue of the Standard decision, AFS is precluded from pleading the decision in Ionic under the collateral estoppel doctrine. In Finding No. 79, Chief Judge Bootle stated that the defendant had "focused primary attention upon the decision on the Ionic contempt appeal." The court in Standard concluded, however, that Automatic's system differed from the "devices under consideration in the [Ionic] contempt appeal in the very respects held to be critical in that decision." 167 U.S.P.Q. at 440. The court further found that the AFS system did not meet the ratio decidendi of the Ionic decision.[12] On the basis of these findings, coupled with my conclusion that AFS controlled the defense in Standard, defendant is estopped from again raising the Ionic *1365 decision or contending that its system is identical to the devices under consideration there. To put it bluntly, AFS litigated those issues in Standard and lost. It cannot relitigate them in this court.
Of the "Russian Documents" little need be said. Defendant argues that through them the invalidity of Ransburg's patents could be shown. However, the validity question vis-a-vis the "Russian Documents" was subsumed in the general question of the validity of Ransburg's patents before the district court in Standard.[13] These documents were available to AFS and Standard Container and could have been raised as part of the invalidity defense in the Georgia trial.[14] AFS may not at this late date attack the validity of Ransburg's patents by now resorting to the "Russian Documents."
Subsequent to the trial in this matter, the Court of Appeals for this Circuit decided Kaiser Industries Corp. v. Jones & Laughlin Steel Corp., 515 F.2d 964, 185 U.S.P.Q. 343 (3d Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 150, 46 L.Ed.2d 110 (1975).[15] In Kaiser certain patent holders brought suit in the Western District of Pennsylvania seeking royalties for alleged infringement. The patent at issue previously had been declared invalid by the United States District Court for the Eastern District of Michigan and affirmed by the Court of Appeals for the Sixth Circuit. When the plaintiff subsequently asserted the same patent in the Pennsylvania action, the defendant, relying upon the opinion of the Supreme Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), raised the defense of collateral estoppel.[16] After an exhaustive review of the prior proceeding, the district court found that the Sixth Circuit courts had "wholly failed to grasp technical subject matter and issues in suit," and accordingly rejected the defense of collateral estoppel.
In reversing the decision of the district court, the court of appeals held that Blonder-Tongue, "does not authorize an unbridled excursion into the record of the earlier trial before applying the estoppel of the previous judgment." 515 F.2d at 987. Rather a second court must
confine its inquiries to proper bounds, namely whether the [first] court displayed an understanding of the issues presented, adequately considered the evidence *1366 presented, and the governing principles of law.
Id.
Defendant asserts that Blonder-Tongue and Kaiser constitute authority for according it collateral estoppel benefit of the Fourth Circuit contempt decision in the Ionic case. For several reasons, I conclude that neither Blonder-Tongue nor Kaiser has application to the case sub-judice. First of all, defendant cannot make the threshold showing that its accused systems are in fact identical to the Ionic systems which were held noninfringing by the Fourth Circuit Court of Appeals.[17] Next, the Fourth Circuit judgment was one of noninfringement rather than invalidity.[18] Finally, even if Blonder-Tongue could be extended to permit a defense of collateral estoppel based upon a prior holding of noninfringement, and even if defendant here could make the required showing of identity between its accused systems and the Ionic systems involved in the Fourth Circuit litigation, AFS still would not prevail, since among the defenses specifically raised in the Georgia suit was an allegation of collateral estoppel against the plaintiff arising from Ionic. That matter was, therefore, actually raised and rejected in the Georgia case.
Accordingly, on the basis of the foregoing findings of fact and discussion, I make the following:

CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and the subject matter of this action pursuant to 28 U.S.C. § 1338(a), and venue is properly laid in this district under 28 U.S.C. § 1400(b).
2. Each of the patents in this suit was lawfully and duly issued, each is owned by plaintiff and plaintiff has standing to sue to recover for past infringement and to enjoin future infringement thereof.
3. Inasmuch as AFS controlled the defense in Ransburg v. Standard Container Co., supra, the judgment therein is res judicata as to AFS. Accordingly, AFS is precluded here from litigating any matters which were or which could have been decided in Standard, including validity and enforceability of the patents in suit, infringement thereof by the accused AFS system, and collateral estoppel by virtue of the judgment in Ransburg v. Ionic Electrostatic Corp., supra.
4. The accused AFS system meets every requirement of claims 3 and 4 of United States Patent No. 2,794,417; Claims 9 and 10 of United States Patent No. 2,893,893; and Claims 7 and 8 of United States Patent No. 2,893,894. The sale of its system by AFS to Standard and others thereby directly infringed those patents. 35 U.S.C. § 271(a).
5. AFS has actively induced infringement of each of the patents in suit by its manufacture and sale of atomizer heads and other components to Standard and others for use in the accused system. 35 U.S.C. § 271(b).
6. AFS has contributed to infringement of each of the patents in suit by selling to Lansdale Finishers, Inc., for use in the accused system, atomizer heads which are not staples of commerce suitable for substantial non-infringing use. 35 U.S.C. § 271(c).
7. Ransburg is entitled to judgment against AFS.
8. AFS and its officers, agents, servants, employees, and attorneys, and all those in active concert or participation with them must be permanently enjoined from *1367 further acts of infringement of United States Patents Nos. 2,893,893 and 2,893,894.
9. Ransburg is entitled to an accounting against AFS to determine the amount of its damages.
10. Ransburg is entitled to an award of ordinary costs against AFS.
11. The Counterclaim of AFS must be dismissed with prejudice.
NOTES
[1]  Plaintiff, Ransburg Corporation, instituted this action against both the manufacturer and purchaser of an allegedly infringing device. This court's award of summary judgment for the plaintiff was reversed by the Court of Appeals. See Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 345 F.Supp. 299, 174 U.S.P.Q. 407 (E.D.Pa.1972), reversed and remanded, 484 F.2d 1037, 179 U.S.P.Q. 258 (3d Cir. 1973). Although conceding that "the evidence adduced in the summary judgment proceedings seems heavily weighted in favor of Ransburg," 484 F.2d at 1039, the Court of Appeals nevertheless concluded that the issue of whether defendant sufficiently controlled a prior suit as to be bound by the doctrine of res judicata presented a controverted question requiring resolution by the court as a finder of fact.

On the eve of trial, plaintiff and the defendant purchaser, Lansdale Finishers, Inc., reached a settlement. At plaintiff's request, and with the consent of the remaining defendant, Automatic Finishing Systems, Inc., the case was tried to the court solely on the issue of defendant's control of prior litigation.
[2]  On April 20, 1972, plaintiff amended its charter to effect a change in its name from Ransburg Electro-Coating Corporation to simply Ransburg Corporation. The caption has been amended to reflect that change.
[3]  The precise patents involved are Nos. 2,685,536; 2,794,417; 2,893,893; and 2,893,894, of which Ransburg is the undisputed owner.
[4]  But see Finding of Fact No. 4 infra.
[5]  Mr. Raymond testified:

"No, I have had nothing to do with that suit. I never had a retainer. I don't believe I saw the papers that were filed. There may have been some copies sent to my office. I have had nothing to do with that suit, however, until recently when I have conversed with you on the matter of testifying here today. * * * I have a recollection that Mr. Kryzinski [an AFS attorney] did suggest that and informed me, I believe, that my name had been put on the record here. But that's all. That's the totality of it."
N.T. Jan. 10, 1975, 220.
[6]  That rule provides:

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.
[7]  The credibility of Mr. Gallen's present testimony also is weakened by his statement that he had not, until recently, even thought about control. He had in fact been present in the courtroom at all times during the Standard trial, where Judge Bootle stated, "Your opponent contends that AFS is really a defendant to this litigation, not on the record but financing the defense and furnishing the witnesses."

After the conclusion of the trial of this matter, defendant submitted to this Court a document entitled "Defendant's Memorandum on Particular Feature of Ransburg's Proposed Findings of Facts." The thrust of this memorandum is that plaintiff's proposed findings concerning the reliability of the testimony of Messrs. Raymond and Gallen are unsupported by the record. After careful review, I conclude that plaintiff's findings, which are meticulously documented to the record, are correct. The remainder of defendant's arguments in this memorandum are hypothetical assertions totally unrelated to the record.
[8]  Standard's only expenditure in this matter was, aside from its ultimate settlement with Ransburg, approximately $1300. for the services of its Atlanta counsel.
[9]  AFS admitted:

We did not refuse to assure Standard Container payment of costs, but having lost the suit unexpectedly, we also lost large sales that would have enabled Standard Container and anyone else involved to accept our assurance.
Standard Container called us, less than one week before the briefs for the appeal were to be filed and said that the appeal briefs were not going to be filed. I checked with Mr. Raymond and he confirmed this fact. He was aware of the sales lost due to the Georgia decision and finally could not accept our assurance of being paid, though he knew we were working on it.
When questioned about this admission, Mr. Gallen testified:
". . . to this day I don't know if that's the reason the appeal was dropped because we couldn't afford it [sic] . . . I am assuming in here that the suit was dropped because we could not be expected to pay for it."
[10]  See, e. g., Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 262 n. 4, 81 S.Ct. 557, 559 n. 4, 5 L.Ed.2d 546, 548 (1961); Souffront v. La Compagnie des Sucreries, 217 U.S. 475, 487, 30 S.Ct. 608, 54 L.Ed. 846, 851 (1910); Lovejoy v. Murray, 3 Wall. 1, 70 U.S. 1, 18 L.Ed. 129 (1865); Ark-Tenn Distributing Corp. v. Breidt, 209 F.2d 359, 361 (3d Cir. 1954); Caterpillar Tractor Co. v. International Harvester Co., 120 F.2d 82, 84-85 (3d Cir. 1941); Manville Boiler Co. v. Columbia Boiler Co. of Pottstown, 204 F.Supp. 385, 387 (E.D.Pa.1962); 1B Moore's Federal Practice ¶ 0.411[6] at 1559-67.
[11]  Accord, Tidewater Patent Development Co. v. Kitchen, 421 F.2d 680, 681 (4th Cir. 1970); Guillot v. Cenac Towing Co., 366 F.2d 898, 906 (5th Cir. 1966); Simon v. Maryland Casualty Co., 353 F.2d 608, 612 (5th Cir. 1965); Thaxton v. Vaughan, 321 F.2d 474, 479 (4th Cir. 1963); Bros., Inc. v. W. E. Grace Mfg. Co., 261 F.2d 428, 430 (5th Cir. 1958); Sheldon v. Amperex Electronic Corp., 52 F.R.D. 1, 11 (E.D.N.Y. 1971); Foster Wheeler Corp. v. Aqua-Chem, Inc., 277 F.Supp. 382 (E.D.Pa.1967).
[12]  Chief Judge Bootle found that in AFS's system, unlike Ionic's, there was substantial dependence upon electrostatic forces for achieving atomization, that electrostatic forces play a large part in the atomization of the paint, and that high rotational speeds do not eliminate the effect of the electrostatic forces. 167 U.S.P.Q. at 437, 440.
[13]  As Professor Moore observes:

A new contention is not . . . necessarily a new issue. If a new legal theory or factual assertion put forward in the second action is "related to the subject-matter and relevant to the issues" that were litigated and adjudicated previously, "so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged." The analogy to the rule against splitting a single cause of action is striking. Like a cause of action, "an issue may not be . . . split into pieces. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result." Any contention that is necessarily inconsistent with a prior adjudication of a material and litigated issue, then, is subsumed in that issue and precluded by the prior judgment's collateral estoppel effect [footnotes omitted].
1B Moore's Federal Practice ¶ 0.443[2], at 3903-04.
[14]  Indeed, at page 808 of the Standard trial transcript, Mr. Raymond specifically dropped Russian Author's Certificate No. 57220 which he previously had designated as an exhibit.
[15]  Because of the arguable impact of the Kaiser decision upon the matter at hand, I invited counsel to submit whatever comments they might deem appropriate. Both sides have done so, and I have accorded full consideration to the views expressed in their respective responses.
[16]  The Supreme Court held in Blonder-Tongue that a prior adjudication of invalidity may be asserted as a defense to a subsequent attempt to enforce the patent, and that such a defense must be accepted unless it is demonstrated that the patentee was denied a full and fair opportunity to litigate the prior action. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 330-50, 91 S.Ct. 1434, 1443-53, 28 L.Ed.2d 788, 800-811 (1971); see Kaiser Industries Corp. v. Jones & Laughlin Steel Corp., 515 F.2d 964, 966, 185 U.S.P.Q. 343 (3d Cir.) cert. denied, 423 U.S. 876, 96 S.Ct. 150, 46 L.Ed.2d 110 (1975).
[17]  Indeed, as stated previously in the text, Judge Bootle held that the automatic system at issue in the Georgia suit differed from the "devices under consideration in the [Ionic] contempt appeal in the very respects held to be critical in that decision." Ransburg Electro-Coating Corp. v. Standard Container Co., 167 U.S.P.Q. 426, 440 (M.D.Ga.1970). The accused system here is, of course, identical to that in dispute in the Georgia action.
[18]  As previously recited, the Ransburg patents at issue here never have been declared invalid. Indeed, District Courts in the Fifth and Eighth Circuits and Courts of Appeals in the Fourth and Eighth Circuits have expressly found them to be valid. See Finding of Fact No. 3, supra.


[Cite as Graham v. Higgins, 2010-Ohio-3674.]

                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY

NATHAN A. GRAHAM,

        PLAINTIFF-APPELLANT,                            CASE NO. 5-09-39

        v.

PATTERSON W. HIGGINS,                                   OPINION

        DEFENDANT-APPELLEE.

                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2005 CV 00218

                      Judgment Reversed and Cause Remanded

                            Date of Decision: August 9, 2010

APPEARANCES:

        Nathan A. Graham, Appellant

        Patterson W. Higgins for Appellee
Case No. 5-09-39

WILLAMOWSKI, P.J.

       {¶1} Plaintiff-appellant Nathan A. Graham (“Graham”) brings this appeal

from the judgment of the Court of Common Pleas of Hancock County finding in

favor of defendant-appellee Patterson Higgins (“Higgins”). For the reasons set

forth below, the judgment is reversed.

       {¶2} On April 8, 2005, Graham filed a complaint alleging professional

misconduct stemming from Higgins’ representation of Graham in a related civil

case. The complaint alleged that Higgins had agreed to represent Graham in the

case for a flat fee of $500, which included representation at trial and taking

Graham’s deposition. Higgins filed a motion to withdraw from his representation

of Graham, which was granted. Higgins did not return the $500 paid to him and

Graham sued to collect damages. Service of the summons and complaint was not

successful until July 18, 2005.

       {¶3} On September 12, 2005, Higgins filed his answer denying the

allegations in the complaint. Graham filed a motion on September 22, 2005, to

have Higgins answer stricken as untimely filed. On September 29, 2005, Graham

filed a motion for default judgment. The trial court overruled these motions on

October 25, 2005. The case proceeded to trial and on November 20, 2009, the

trial court entered judgment in favor of Higgins.     Graham appeals from the

October 25, 2005, judgment and raises the following assignment of error.

                                         -2-
Case No. 5-09-39

        The trial court erred and abused its discretion when it allowed
        [Higgins] to file an answer beyond rule date where there was no
        showing of “excusable neglect” and [Higgins] failed to comply
        with procedures outlined in Rule of Civil Procedure for late
        filing.

       {¶4} This court notes initially that Higgins has chosen not to file a brief

in this matter.

        (A) * * * The appellee shall serve and file the appellee’s brief
        within twenty days after service of the brief of the appellant.

        ***

        (B) * * * If an appellee fails to file the appellee’s brief within
        the time provided by this rule * * * the appellee will not be
        heard at oral argument except by permission of the court upon
        a showing of good cause submitted in writing prior to
        argument; and in determining the appeal, the court may accept
        the appellant’s statement of the facts and issues as correct and
        reverse the judgment if appellant’s brief reasonably appears to
        sustain such action.

App.R. 18.

       {¶5} The sole assignment of error claims that the trial court erred by

allowing the late answer filing. Once a defendant has received a summons he or

she has 28 days to file their answer. Civ.R. 12(A). After the time to file an

answer has expired, the answer may only be filed if the defendant files a motion

requesting permission to file and where the failure was the result of excusable

neglect.   Civ.R. 6(B).   An answer filed after the deadline without a motion

seeking leave to file is a nullity because there is no showing of excusable neglect.

                                        -3-
Case No. 5-09-39

Matthews v. Rader, 11th Dist. No. 2003-L-092, 2005-Ohio-3271. “Allowing a

defendant to file an answer out of rule without moving for leave to file and

showing excusable neglect under Civ.R. 6(B) is an abuse of discretion.” Hillman

v. Edwards, 10th Dist. No. 08AP-1063, 2009-Ohio-5087, ¶8 (citing Miller v. Lint

(1980), 62 Ohio St.2d 209, 404 N.E.2d 752 and Davis v. Immediate Med. Serv.,

Inc. (1997), 80 Ohio St.3d 10, 684 N.E.2d 292). Thus, the denial of a motion to

strike an untimely answer filed without getting leave or showing excusable

neglect is reversible error. Id. at ¶9.

       {¶6} In this case, Higgins was served with the summons on July 18,

2005. He did not file his answer until September 12, 2005, fifty-six days after

service. The record does not indicate that Higgins sought an extension of time to

file his answer before the twenty-eight days had expired. The record also does

not indicate that Higgins filed a motion seeking leave to file a late answer and

setting forth excusable neglect. Graham filed his motion to strike the answer on

September 22, 2005.       Graham then filed a motion for default judgment on

September 29, 2005.       Higgins did not file any responses to either of these

motions.    On October 25, 2005, the trial court overruled Graham’s motions.

However, the trial court abused its discretion in denying the motion to strike the

answer and in denying the motion for default judgment when the answer was filed

out of rule, no motion requesting permission to file it had been filed, and no

                                          -4-
Case No. 5-09-39

showing of excusable neglect was made. The trial court also erred in denying

Graham’s motion for default judgment when the answer which was filed was a

nullity. Thus, the first assignment of error is sustained.

       {¶7} The judgment of the Court of Common Pleas of Hancock County is

reversed and the matter is remanded for further proceedings.

                                                               Judgment Reversed
                                                                  And Remanded

ROGERS and SHAW, J.J., concur.

/jlr

                                          -5-


                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

 CHRISTOPHER IAN O’BRIAN,                     §
                                                             No. 08-14-00221-CR
                            Appellant,        §
                                                                Appeal from the
 v.                                           §
                                                                 County Court
 THE STATE OF TEXAS,                          §
                                                            of Terrell County, Texas
                           State.             §
                                                                  (TC# 1877)
                                              §

                                         ORDER

       The Court GRANTS the Court Reporter’s fourth request for an extension of time within

which to file the Reporter’s Record until November 19, 2014. NO FURTHER REQUESTS

FOR EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WILL BE

CONSIDERED BY THIS COURT.

       It is further ORDERED that Patricia Phelps, Court Reporter for the County Court,

for Terrell County, Texas, prepare the Reporter’s Record for the above styled and numbered

cause, and forward the same to this Court on or before November 19, 2014.

       IT IS SO ORDERED this 4th day of November, 2014.

                                                   PER CURIAM

Before McClure, C.J., Rodriguez and Hughes, JJ.


[Cite as State v. Brown, 2012-Ohio-1848.]

          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :            C.A. CASE NO.    24541

v.                                                      :            T.C. NO.    10CR2005

DAMIEN D. BROWN                                         :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                  :

                                                        :

                                            ..........

                                            OPINION

                         Rendered on the         27th       day of       April    , 2012.

                                            ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1}      Damien Brown was found guilty by a jury of two counts of murder and two

counts of felonious assault, each with a firearm specification, and having a weapon while

under disability (with a prior offense of violence). The first four counts were merged, as
                                                                               2

were the firearm specifications. Brown was sentenced to fifteen years to life in prison for

murder, to three years of actual incarceration on the firearm specification, and to five years

for having a weapon under disability, to be served consecutively. Brown appeals from his

conviction.

        {¶ 2}     On June 25, 2010, Marquita Brown (“Marquita”) was shot in the head at her

apartment. At trial, it was undisputed that Brown was present when Marquita was shot, but

the circumstances surrounding the shooting were in dispute.

        {¶ 3}     The State presented the following evidence at trial:

        {¶ 4}     At 2:12 a.m. on June 25, 2010, Marquita’s five-year-old son called 911 from

their home in Dayton and reported that his mother had been shot by Brown. Brown was

Marquita’s boyfriend and had fled the apartment after the shooting.            Marquita was

pronounced dead at the scene, and the gun was found next to her body. The body was

located in the master bedroom on the second floor of the home. A shoebox of broken

picture frames and photographs was spilled at the bottom of the stairs, but there were no

other signs of a struggle.

       {¶ 5}       Forensic evidence established that Marquita had been shot once in the

temple from a distance of 2 to 18 inches and that the bullet had traveled in a downward

trajectory; forensic evidence also established that five pounds of pressure on the trigger was

required to fire the gun when it was cocked. Marquita did not have any other injuries or any

defensive wounds. A .22 caliber revolver with one spent cartridge and five live cartridges

was found next to the body.

       {¶ 6}      Brown’s mother testified that he had been carrying a handgun the previous
                                                                               3

day and that he was planning to go to Marquita’s house to eat the night of June 24. Around

2:30 a.m. on June 25, Brown called his mother for a ride.

        {¶ 7}    Brown’s cousin, Terry Jamison, testified that she received a call from

Brown’s sister around 2:30 a.m. on June 25; the sister was crying and upset. Jamison then

spoke with Brown’s mother, who arranged for Jamison to pick up Brown near Third Street

and Grosvenor. (A detective testified that this intersection was approximately two miles

from Marquita’s apartment).       After picking up Brown, Jamison dropped him off on

Cincinnati Street, but she did not see where he went from here. Brown was arrested during

the morning of June 25 at an apartment in Harrison Township.

        {¶ 8}    The State presented testimony from Marquita’s sister that she had seen

Brown “chok[e]” Marquita in the spring of 2010 at Marquita’s apartment. The sister also

identified Marquita’s and Brown’s voices on a voicemail message in which Brown threatened

to burn down Marquita’s apartment. Two Dayton police officers testified that they had been

called to Marquita’s apartment approximately two weeks before the shooting on a report of

domestic violence, that they saw evidence of destruction at the apartment, that Marquita was

upset and reported that Brown had threatened to burn down her apartment.

        {¶ 9}    Brown testified in his own defense. He stated that he had been “seeing”

Marquita for three years and that they had lived together “all the time” with some breaks. He

admitted to being present at the shooting, but claimed that the gun had fired accidentally.

According to Brown, he initially placed his gun under a mattress in the bedroom, but

Marquita retrieved it and pointed it at him when she became upset with him. She cocked the

gun, but eventually handed it back to Brown. While Brown was trying to uncock the gun, he
                                                                               4

made a comment that upset Marquita, and she attempted to grab the gun from him. Brown

claims that the gun fired accidentally during this struggle, and that he fled the scene because

he was “shocked and scared.”

       {¶ 10}    Brown was indicted on two counts of murder (deadly weapon and serious

physical harm) and two counts of felonious assault (deadly weapon and serious physical

harm), each with a firearm specification, and one count of having a weapon under disability.

He was tried by a jury. After jury deliberations began, one of the jurors was replaced with an

alternate, and deliberations began anew. The jury returned guilty verdicts on all counts.

The trial court merged the convictions as described above and sentenced Brown to an

aggregate term of twenty-three years to life of imprisonment.

       {¶ 11}    Brown raises four assignments of error on appeal.

       {¶ 12}    Brown’s first assignment of error states:

       COLLECTIVE COMMENTS BY THE PROSECUTOR DURING VOIR

       DIRE, TESTIMONY, AND CLOSING ARGUMENT REPRESENTED

       MISCONDUCT AND SERVED TO DENY APPELLANT DUE PROCESS.

       {¶ 13}    Brown claims that the prosecutor engaged in misconduct by making “snide

and improper comments,” expressing her personal beliefs to the jury, questioning him in an

“inappropriate and harassing” manner, and relying on facts not in evidence during closing

argument.

       {¶ 14}    In reviewing claims of prosecutorial misconduct, the test is whether the

remarks were improper and, if so, whether those comments prejudicially affected the

substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300
                                                                               5

(2000). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the

prosecutor.’” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct.940, 71 L.Ed.2d 78

(1982). Where it is clear beyond a reasonable doubt that the jury would have found the

defendant guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and his conviction will not be reversed. See State v. Underwood, 2d Dist. Montgomery No.

24186, 2011-Ohio-5418, ¶ 21. We review allegations of prosecutorial misconduct in the

context of the entire trial.       State v. Stevenson, 2d Dist. Greene No. 2007-CA-51,

2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91

L.Ed.2d 144 (1986).

       {¶ 15}      There was no objection to the alleged instances of prosecutorial misconduct;

therefore, Brown has waived all but plain error. State v. Bryan, 101 Ohio St.3d 272,

2004-Ohio-971, 804 N.E.2d 433, ¶ 175; State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d

369 (1996). The plain error rule is to be invoked only under exceptional circumstances in

order to avoid a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 95, 372

N.E.2d 804 (1978). Plain error does not occur unless, but for the error, the outcome of the

trial clearly would have been different. Id. at 97; Crim.R. 52(B).

       Voir dire

       {¶ 16}      Brown’s objection to the prosecutor’s conduct during voir dire is reflected in

the following passage:

       PROSECUTOR:            Let’s talk about something else.        Sympathy.      The

       Defendant gets to stay in the courtroom throughout the entire trial. The

       victim doesn’t get that opportunity. So, you’re going to be looking at him
                                                                               6

          every day. Okay? And you may even form an opinion about how he looks

          there. I don’t know. But the point is, you’re going to have to look at him

          every day.

                   Anybody here think that any sympathy whatsoever could creep into

          this trial? And, quite frankly, that’s true even for the victim. There is no

          place for sympathy in this case, whether it’s for the victim or the Defendant.

          Anybody have a problem with that?

          {¶ 17}    One prospective juror responded to this question. The prospective juror

had previously disclosed that she had been abused by her “extremely violent” husband, but

had stayed with him for eight years because she thought she “could fix him.”        Although her

response to the prosecutor at this particular point in voir dire was “indiscernible,” the

prosecutor asked if the juror’s response was for the “same reason” that had been discussed

earlier. We can glean no additional insight into this interaction from the record, and we note

that this prospective juror was not seated. Based on the record before us, we have no basis

to conclude that the prosecutor’s questions about sympathy for Brown or about “hav[ing] to

look at him” during the trial caused any prejudice to Brown.

          Comment on the victim’s rights under the law

          {¶ 18}    Brown contends that the prosecutor acted improperly by commenting that

the victim “gets as much protection under the law as any of you would.” (Emphasis in

brief.)

          {¶ 19}    It will be helpful to our discussion to view this comment in context:

          PROSECUTOR: [Prosecutor referred to previously addressed “abusive
                                                                               7

       relationship and how you feel about * * * a woman in that situation.”] * * *

       [I]s there anybody here collectively or individually who have [sic] a problem

       with the notion that all women are protected equally? All women are protected

       equally regardless of what you think they might bring on themselves by their

       own actions. If a woman chooses to stay with her abuser, for any number of

       reasons, or, quite frankly, reconcile with them, maybe they were put out but

       they reconciled, which I’m sure you’re familiar with in that cycle of violence.

       * * * Are you going to hold that against her and say, you know, “You got what

       you deserved?[”]

       PROSPECTIVE JURORS: Huh-uh.

       PROSECUTOR: Okay, And that’s all we’re looking for. She gets as much

       protection under the law as any of you would.         Can we agree to that?

       Anybody think they have a problem with that? * * *

       {¶ 20}    In our view, the prosecutor did not act improperly in asking the jurors

whether they agreed that the victim was protected under the law, even if she returned to an

abusive relationship. The reference to the victim’s having as much protection “as any of

you” arguably suggested to jurors that they place themselves in the position of the victim.

However, such a “golden rule” comment is not per se prejudicial; rather the test is whether it

prejudicially affected the substantial rights of the defendant.     State v. Ross, 2d Dist.

Montgomery No. 22958, 2010-Ohio-843, ¶ 126. We cannot say that it did. Moreover,

Brown did not object to the question; even if we were to assume, for the sake of argument,

that the question were improper, there is certainly no basis to conclude that the question
                                                                               8

caused a “manifest miscarriage of justice” requiring reversal of the conviction for plain error.

 Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.

        Manner of questioning the Defendant

        {¶ 21}    Brown     also     contends   that   the   prosecutor   harassed   him   during

cross-examination by “continuously prefac[ing] her questions with ‘You want the jury to

believe...’” or a similar preface.

        {¶ 22}    Prosecutors have wide latitude in cross-examining witnesses, subject to the

trial court’s discretion. State v. Garfield, 34 Ohio App.3d 300, 303, 578 N.E.2d 568 (11th

Dist.1986).

        {¶ 23}    A trial is an adversarial process, and the trial court did not abuse its

discretion in allowing the prosecutor to express some degree of skepticism about Brown’s

version of events. Defense counsel did not object to the questions. Moreover, our review

of the record indicates that the questions about which Brown complains highlighted

inconsistencies in his account or were addressed to fairly minor issues, such as how pictures

ended up on the floor. We discern no error, plain or otherwise, with respect to this aspect of

the prosecutor’s cross-examination of Brown.

        Reliance on facts not in evidence during closing

        {¶ 24}    Finally, Brown contends that the prosecutor argued facts not in evidence

during closing argument. In particular, Brown objects to the following statement: “[Brown

is] the only person who told you Marquell [Marquita’s son] didn’t see it. But you know

what, Marquell saw enough. Maybe we will never be able to know how much Marquell

saw. But he put it together. He put it together. And that’s what makes it so reliable.”
                                                                               9

          {¶ 25}   Marquell was not called by either side and did not testify at trial, but his 911

call was played, without objection, for the jury. In that call, he stated: “Damien Brown has

shot my momma.”

          {¶ 26}   Both prosecutors and defense attorneys are given wide latitude during

closing arguments to address what the evidence has shown and what reasonable inferences

may be drawn from that evidence. State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629,

911 N.E.2d 309, ¶ 33 (2d Dist.), citing State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293

(1990).

          {¶ 27}   Although no evidence was presented that Marquell witnessed the shooting,

the prosecutor urged the jury to take Marquell’s perception of what had happened into

account. In other words, the prosecutor urged the jury to make an inference that Marquell

knew what had happened in the apartment, without presenting direct evidence that Marquell

had seen the shooting. The jury was undoubtedly aware of the uncertainty surrounding

Marquell’s account, and it was free to draw inferences from his statements to the 911

operator. Even in Brown’s version, he was holding the gun when it fired, albeit accidentally.

 Moreover, there is little likelihood that the outcome of the trial would have been different

absent the prosecutor’s statements, particularly when those statements are considered in the

context of all the State’s evidence and the prosecutor’s entire closing argument. State v.

Stevens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). No plain error occurred during

closing argument that undermines our confidence in the jury’s verdict.

          {¶ 28}   Having found no instances of prosecutorial conduct that amounted to plain

error, the first assignment of error is overruled.
                                                                               10

        {¶ 29}    Brown’s second assignment of error states:

        THE TRIAL COURT ABUSED ITS DISCRETION IN MISAPPLYING

        OHIO RULE OF EVIDENCE 404 AND ADMITTING TESTIMONY MORE

        PREJUDICIAL THAN PROBATIVE.

        {¶ 30}    Brown contends that the testimony of Margene Robinson, an expert on

domestic violence, and other testimony about alleged prior instances of domestic violence

should not have been allowed by the trial court because it was “highly prejudicial” and “of

little probative value.”

        {¶ 31}    The decision whether to admit evidence is left to the sound discretion of the

trial court, and a reviewing court will not reverse that decision absent an abuse of discretion.

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. An

abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part

of the trial court. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

        {¶ 32}    Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that he acted in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”   Relevant evidence is admissible unless its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury. Evid.R. 402; Evid.R. 403(A).

        {¶ 33}    The victim’s sister, Kimberly Brown, testified about an incident in the

spring of 2010, in which she had seen Brown “chok[e]” Marquita at Marquita’s house by
                                                                               11

holding his hand to her throat and pushing her against a wall. After Kimberly intervened,

Brown called Kimberly and Marquita “project bitches” and threatened to come back with his

“chopper.”    (A detective testified that “chopper” is slang for a gun.)         Kimberly also

identified Brown’s and Marquita’s voices on a voicemail message left on Marquita’s cell

phone on June 13, 2010, in which Brown had threatened to set fire to Marquita’s apartment.

       {¶ 34}    Additionally, two Dayton police officers testified that they had responded to

a “threat call” from Marquita’s apartment on June 13, 2010, less than two weeks before her

death. The officers testified that, on that occasion, the victim was very upset and her clothes

were “partially stretched, kind of torn.” They also testified that her television was face-down

in the kitchen, her stereo had been smashed, framed pictures had been thrown to the floor,

and the victim stated that her boyfriend, Brown, had threatened to set the apartment on fire.

       {¶ 35}    Brown testified that the shooting was an accident. The trial court could

have reasonably concluded that the State’s evidence of prior incidents of domestic violence

and threats made by Brown toward the victim were offered to show his intent, plan, or

absence of mistake or accident in killing Marquita, rather than to prejudice the jury against

him by proof of prior bad acts. Moreover, the trial court cautioned the jury, both during the

trial and in its jury instructions, that this evidence was being received for “a limited purpose”

and could not be “consider[ed] * * * to prove the character of the Defendant in order to show

that he acted in conformity with that character.”        The court further instructed that the

limited purpose for which the evidence of other acts could be considered was “for the

purpose of deciding whether it proves the absence of accident, the Defendants’ motive,
                                                                               12

opportunity or intent * * *.” Keeping in mind its careful instructions to the jury, the trial

court did not abuse its discretion in admitting this evidence.

       {¶ 36}    Brown also argues that the testimony of Michelle Knight that she had filed a

domestic violence charge against Brown years earlier was “a pure attack on his character.”

Knight’s testimony was introduced, along with a copy of a termination entry (Ex. 71) and the

testimony of a detective, to establish Brown’s 2003 felony conviction on two counts of

domestic violence. Establishing the prior conviction was necessary to support the charge of

having a weapon under disability. Knight did not testify about the nature of the incidents

underlying the 2003 offenses, but she did testify about the length of her relationship with

Brown, her young age at the time, and the fact that she had pressed charges against him.

       {¶ 37}    We share Brown’s concern about the use of Knight’s testimony to establish

his prior conviction, when other evidence had been presented to establish that fact. The

State introduced the detective’s testimony that Brown had not been allowed to carry a gun at

the time of the offense because of his prior felony domestic violence conviction, and the

detective identified the judgment entry related to those offenses. The detective also stated

that she had compared the date of birth and social security number of the defendant in the

prior case with Brown’s and found them to match. As such, Knight’s testimony was not

necessary to establish the existence of the prior conviction. While we do not generally

question a party’s decision to call two witnesses when one would do, in this situation, there

was the danger that the personalization of another complainant could create sympathy in the

jury apart from the fact of a prior conviction. (For example, Knight, who testified that she

was a teenager when she dated Brown, was considerably younger than Marquita.) However,
                                                                               13

because Knight’s testimony about the prior incidents was very limited, Brown did not object

to it, and the court gave the appropriate instruction, we conclude that the trial court’s

admission of this testimony was not plain error.

       {¶ 38}    Finally, Brown contends that the testimony of Robinson, a former Dayton

police officer who supervised the domestic violence unit, was improper. Brown did not

object to Robinson’s qualifications, only the relevance and prejudice of her testimony. In

response to a State’s motion in limine to declare Robinson an expert witness, Brown also

argued that the State should not be permitted to “offer Margene Robinson to explain why the

victim[‘]s actions or lack thereof should not be held against [her]” while “restrict[ing] the

defense ability to inquire or reference any specific acts of conduct of the victim before the

date in question.”

       {¶ 39}    Robinson testified as an expert regarding common misconceptions about

domestic violence. Her testimony included various perceived or actual reasons why a victim

of domestic violence may not be able to escape her situation. Robinson also testified about

the three stages in the cycle of domestic violence. She did not testify about Brown’s

relationship with the victim, and the State’s evidence did not illustrate that the victim’s

actions or her relationship with Brown fit this pattern.

       {¶ 40}    Evid.R. 702 states: “A witness may testify as an expert if all of the following

apply: (A) The witness’ testimony either relates to matters beyond the knowledge or

experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony; (C) The witness’
                                                                               14

testimony is based on reliable scientific, technical, or other specialized information. * * *”

“In determining the admissibility of an expert witness’s testimony, a court must consider

whether that witness will aid the trier of fact in search of the truth.” State v. Dyson, 2d Dist.

Champaign No. 2000CA2, 2000 WL 1597952 (Oct. 27, 2000). Relevant evidence is not

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

confusion of the issues, or of misleading the jury. Evid.R. 403(A); State v. Thomas, 2d Dist.

Montgomery No. 19435, 2003-Ohio-5746, ¶ 18. The determination concerning the

admissibility of expert testimony is a matter committed to the sound discretion of the trial

court. Id.

       {¶ 41}    Brown claims that Robinson’s testimony was not relevant because her

expertise was in domestic violence and, since he was not charged with domestic violence, her

testimony confused the issues. The argument frames the issue too narrowly; Brown, after

all, was charged with killing someone with whom he had lived “all the time,” thus coming

within the definition of “person living as a spouse” in the domestic violence statute. R.C.

2919.25.

       {¶ 42}    However, we are troubled that Robinson’s testimony did not directly

correspond with any other evidence presented in this case, i.e., no explicit evidence was

presented that Marquita felt trapped in her relationship with Brown or that their relationship

had fit the cycle of domestic violence. On the other hand, the evidence did establish that

Marquita’s relationship with Brown was an abusive one, which, coupled with Robinson’s

testimony, could have helped the jury to understand why Marquita continued to see Brown

after the prior incidents, including on the night of the shooting. Thus, it may have weighed
                                                                               15

in favor of the State’s theory that Brown was still violent despite Marquita’s continued

relationship with him. In hindsight, this is a close call and it may have been better had that

testimony not been admitted. However, we find no reversible error in the trial court’s

decision to allow Robinson to testify.

       {¶ 43}    The second assignment of error is overruled.

       {¶ 44}    Brown’s third assignment of error states:

       THE TRIAL COURT ABUSED ITS DISCRETION IN EXCUSING A

       JUROR, LIKELY FAVORABLE TO APPELLANT, IN MEDIAS RES OF

       DELIBERATION WITHOUT A MANIFEST NECESSITY TO DO SO.

       {¶ 45}    Brown claims that the trial court’s decision to discharge a juror after

deliberations had begun was “contrary to law” and denied him his right to a trial by jury.

       {¶ 46}    A trial judge is empowered to exercise “sound discretion to remove a juror

and replace him with an alternate juror whenever facts are presented which convince the trial

judge that the juror’s ability to perform his duty is impaired.” State v. Hopkins, 27 Ohio

App.3d 196, 198, 500 N.E.2d 323 (11th Dist.1985), citing United States v. Spiegle, 604 F.2d

961, 967 (5th Cir.,1979); State v. Sikola, 5th Dist. Richland No. 06CA72, 2008-Ohio-843, ¶

39. Put differently, the court has authority to replace jurors with alternates when the jurors

“become or are found to be unable or disqualified to perform their duties.” Crim.R. 24(F);

see also R.C. 2945.29. Absent a record showing that the court abused that discretion which

resulted in prejudice to the defense, the regularity of the proceedings is presumed. Beach v.

Sweeney, 167 Ohio St. 477, 150 N.E.2d 42 (1958). See also State v. Shields, 15 Ohio

App.3d 112, 472 N.E.2d 1110 (8th Dist.1984).
                                                                               16

        {¶ 47}    On the afternoon of the third day of trial, the court instructed the jury and

the the jury began its deliberations. Later that afternoon, the jury rang the bell asking for the

bailiff, and the bailiff found that one of the jurors (“Juror 11”) was “crying and upset” and

stated that she did not want to continue deliberating. The judge discussed with counsel

possible ways of addressing this situation, including asking Juror 11 to “go forward in

deliberations” but adding a second question when the jury was polled to assure that each

juror’s verdict was voluntary, seating an alternate juror and having the jury begin

deliberations from the beginning, and asking Juror 11 to reflect overnight on her willingness

to continue. They agreed that the judge would talk with the juror in chambers, outside the

presence of counsel. (Counsel was excluded based on the judge’s concern that the juror

might reveal how the jury was leaning in its deliberations.) Defense counsel did not object

to this course of action.

        {¶ 48}    The judge talked with Juror 11 in chambers, on the record. The judge then

accurately described the conversation to the attorneys as follows:

        I spoke with [Juror 11] and she’s very upset. She’s very tearful. And she

        does not want to go back into the jury room to deliberate. And so in light of

        that I told her what I would do is we would just discharge her as a member of

        our jury. * * * [S]he’s not being very communicative. And part of that I

        think is because every time she starts to talk, she starts crying. So she’s very

        emotional, very upset. Took her awhile to decide what it was that she wanted

        to do. In part concerned about not wanting to feel that she was abandoning

        her obligations or abandoning the folks that she has become friends with as
                                                                               17

       members of the jury. But fundamentally, she’s at the point where she says

       that she just can’t do it. She didn’t realize when she became a juror just how

       she would be impacted by the process and now that the moment of reckoning

       is here, she just is a mess about it and is emotionally unable to continue.

       {¶ 49}     After the discussion with Juror 11, the judge expressed her intention to

discharge Juror 11 “[w]ith counsel’s permission” and to replace her with an alternate.

Again, defense counsel did not object to this resolution of the issue. Because it was after

5:00, it was snowing, and ice was expected, the trial court indicated that deliberations with

the alternate juror would begin the next morning.

       {¶ 50}     One alternate juror remained at the end of the trial. When the jury began its

deliberations, the alternate juror was permitted to leave but, as required by Crim.R. 24(G)(1),

the court instructed the alternate that he should “not discuss the case nor tell anybody how

[he] would have voted” until he was informed that the jury had returned its verdict. The

court also asked him to abide by the “code of silence” that is imposed on jurors until he was

discharged.     The court’s discussion with the alternate juror, when he was recalled, is not

contained in the record; we presume that he had complied with the court’s instructions.

       {¶ 51}     The jury reached a verdict the following day, after more than two hours of

deliberations with the newly-seated juror.

       {¶ 52}     R.C. 2945.29 states:

       If, before the conclusion of the trial, a juror becomes sick, or for other reason

       is unable to perform his duty, the court may order him to be discharged. In

       that case, if alternate jurors have been selected, one of them shall be
                                                                               18

       designated to take the place of the juror so discharged. * * *

When a juror is replaced by an alternate after deliberations have begun, the trial court “must

instruct the jury to begin its deliberations anew.” Crim.R. 24(G)(1). The trial court gave

this instruction when Juror 11 was replaced with the alternate.

       {¶ 53}     The trial court fully complied with the legal requirements for replacing a

juror after deliberations had begun, and counsel did not object at any point to the court’s

handling of this issue. Moreover, Brown’s assertion that Juror 11 was “likely favorable” to

him is wholly speculative, and he has not argued that he was prejudiced in any way by the

alternate juror’s participation. The trial court acted within its discretion in handling the

matter as it did. We find no support for Brown’s claims that the court acted “contrary to

law” or denied him his right to a trial by jury.

       {¶ 54}     The third assignment of error is overruled.

       {¶ 55}     Brown’s fourth assignment of error states:

       THE      TRIAL     COURT       COMMITTED        PREJUDICIAL      ERROR      BY

       ENTERING A VERDICT HEREIN WHICH WAS AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 56}     Brown claims that his conviction was against the manifest weight of the

evidence.

       {¶ 57} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.”         State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest
                                                                               19

weight of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Elmore, 111 Ohio

St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44.

       {¶ 58}    Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). However, we may determine which of several competing inferences suggested by

the evidence should be preferred. Id.

       {¶ 59}    The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 60}    The State presented evidence that Brown’s gun was fired downward into the

victim’s temple at close range, that five pounds of pressure was required to pull the trigger of

this gun, that Brown had previously abused and threatened the victim, and that he fled the

scene rather than seeking help for the victim. Brown testified that the victim had been shot

accidentally as she tried to grab the gun from him. The jury’s decision to credit the State’s

evidence did not create a manifest injustice and was not against the manifest weight of the
                                                                               20

evidence.

       {¶ 61}     The fourth assignment of error is overruled.

       {¶ 62}     The judgment of the trial court will be affirmed.

                                          ..........

FAIN, J., concurs.

GRADY, P.J., dissenting:

       {¶ 63}     Defendant claimed that Marquita Brown’s death was an accident, the result

of their struggle over a gun. The State’s theory was that Defendant had instead purposely

caused Marquita Brown’s death by shooting her with a gun he held. In support of that

theory, the State offered extrinsic evidence of Defendant’s prior acts of violence committed

against or directed toward Marquita Brown. The State also offered evidence of a threat

Defendant made involving use of a gun.           The State also offered “profile” evidence of

domestic violence offenders and their victims.

       {¶ 64}     “Extrinsic act evidence may be admissible to negate a mistake or accident,

and, obviously, this theory is closely linked with a demonstration of intent.” Weissenberger,

Ohio Evidence Treatise, (2010 Ed.), Section 404.25. For that purpose, when a defendant

claims or the evidence suggests that a result of his conduct was an accident, extrinsic act

evidence may be introduced to show that the defendant’s conduct was not accidental but

purposeful. Evid.R. 404(B). If the extrinsic act evidence is instead offered to prove that the

defendant engaged in conduct of a different kind, the extrinsic act evidence is offered to

prove a propensity to engage in such other conduct, which is inadmissible pursuant to

Evid.R. 404(A).
                                                                               21

         {¶ 65}   Defendant’s threat at some time in the past to come back to Marquita

Brown’s house with his “chopper” implies an intent to do her harm with a gun, and was

admissible to prove that he purposely shot Marquita Brown. The evidence of Defendant’s

other, prior “bad acts” was irrelevant to prove that he acted purposely to shoot Marquita

Brown, except on the basis of the prohibited inference of conforming conduct. The trial

court erred in admitting that evidence. That evidence was also inadmissible to prove why

Marquita Brown continued to give Defendant access to her home, because that issue was

irrelevant to Defendant’s guilt or innocence for the conduct in which he allegedly engaged.

         {¶ 66}   Even more disturbing is the testimony of Margene Robinson concerning the

“profile” of domestic violence offenders and their victims. We rejected such evidence as

prohibited “propensity” evidence in State v. Smith, 84 Ohio App.3d 647, 617 N.E.2d 1160

(1992). The purpose of the profile evidence was to demonstrate Defendant’s propensity to

engage in violent behavior, supporting an inference that he acted purposely to shoot Marquita

Brown.     The trial court erred when it allowed the State to introduce the testimony of

Robinson.

         {¶ 67}   The State no doubt had a difficult case to prove. The shot that killed

Marquita Brown was fired in a closed room, and there were no eyewitnesses. Nevertheless,

the State may not seek to      prove Defendant’s guilt through character evidence, absent

Defendant’s prior introduction of character evidence on his own behalf. Evid.R. 404(A)(1).

Justice is not advanced by bending the rules to afford the prosecution a better chance to

obtain a conviction.

                                         ..........
                       22

Copies mailed to:

Kirsten A. Brandt
J. Allen Wilmes
Hon. Mary L. Wiseman


                            NUMBER 13-13-00634-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG
____________________________________________________________

ROGELIO CABRERA,                                                       APPELLANT,

                                           v.

GPS HOLDINGS, LLC, A TEXAS
LIMITED LIABILITY COMPANY
AND GUSTAVO F. STERN,                            APPELLEES.
____________________________________________________________

             On Appeal from the 138th District Court
                  of Cameron County, Texas.
____________________________________________________________

                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Longoria
                    Memorandum Opinion Per Curiam

      Appellant, Rogelio Cabrera, appealed a judgment entered by the 138th District

Court of Cameron County, Texas. On January 6, 2014, the Clerk of this Court notified

appellant, in accordance with Texas Rule of Appellate Procedure 42.3(c), that we would

dismiss this appeal unless the $195.00 filing fee was paid. See TEX. R. APP. P. 42.3(c).
      The notice was sent to appellant's last known forwarding address; however, the

notice was returned as not deliverable. The Court sent a second notice on February 6,

2014 regular mail, which was not returned. Appellant has not responded to the notice

from the Clerk or paid the $195.00 filing fee. See TEX. R. APP. P. 5, 12.1(b).

      Texas Rule of Appellate Procedure 9.1(b) requires unrepresented parties to sign

any document filed and "give the party's mailing address, telephone number, and fax

number, if any." See TEX. R. APP. P. 9.1(b). Appellant has neither provided this court

with a forwarding address nor taken any other action to prosecute this appeal.

      The Court, having considered the documents on file and appellant’s failure to pay

the filing fee, is of the opinion that the appeal should be dismissed. See id. 42.3(b),(c).

Accordingly, the appeal is DISMISSED for want of prosecution.

                                                              PER CURIAM

Delivered and filed the 6th
day of March, 2014.

                                            2