COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59180 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHNNIE KNIGHT : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-233271 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT TROLL LYNCH, ESQ. Cuyahoga County Prosecutor Lynch & Lunch Co., L.P.A. GEORGE F. LONJAK, ESQ. 711 Statler Office Tower Assistant Prosecuting Attorney Cleveland, Ohio 44115 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: I. Appellant, Johnnie Knight, was indicted by the Cuyahoga County Grand Jury on a twenty-six count indictment, which charged him of rape, kidnapping, aggravated robbery, felonious assault and aggravated burglary. Appellant was found guilty by the jury on twenty-three counts but was found not guilty on two counts of felonious assault and on one count of aggravated robbery. On January 11, 1990, appellant was sentenced by the court to a minimum total of two hundred and twenty-four years to a maximum total of five hundred and forty-five years in jail. Appellant was to serve his sentence consecutively on all counts and was ordered to pay court costs. Appellant timely appeals the judgment of the trial court as of right. For the reasons that follow, we affirm. II. Mrs. Ana Lugo testified that she was alone on the night of September 23, 1988 at her house located on 13921 Tyler Road, Cleveland, Ohio, watching television. She heard a noise. She walked to the kitchen and saw a man wearing a mask with a knife in his hand standing in the kitchen. She attempted to run to the front door, but was grabbed by the hair by the intruder. Mrs. Lugo testified that the man hit her so many times and warned her that "if you don't stay still, I'm going to kill your children." - 2 - Mrs. Lugo testified that during her struggle with the intruder, his mask came off and she was able to look at his face because the kitchen light was on. The intruder tied her hands behind her back. Her two children were locked in the closet by the intruder and the closet door was tightly secured. The man placed a chair against the door. Mrs. Lugo was pulled into the bedroom by the intruder and was forced to perform oral sex. She was tied to the bed face down by the intruder and was forced to engage in both anal and vaginal intercourse with him. Mrs. Lugo testified that at a certain point during the ordeal, the intruder jumped out of the bedroom window when he heard the sound of an approaching car. Mrs. Lugo testified that he returned moments later and engaged in further anal intercourse with her. Mrs. Lugo testified that while she was lying on the bed bleeding, he was searching through her house looking for valuables. He returned to the bedroom again and engaged in vaginal intercourse with her. He finally fled in an Omni automobile belonging to the Lugos. Mrs. Lugo testified that the intruder was at her house for approximately one and one-half hours. Mrs. Lugo informed the police that a VCR, a television and sundry items of jewelry were taken by the intruder. Mrs. Lugo identified appellant, Johnnie Knight, as the intruder in a police physical line-up. Appellant was further identified by Mrs. Lugo in court. Mrs. Lugo responded when asked if she was positive - 3 - that appellant was the intruder. "Yes. I will never forget his face, I never will in my life." Mary Doty of 13420 Sherry Avenue, Cleveland, Ohio, testified that she returned home on October 3, 1988 at approximately 8:30 p.m. and saw papers scattered all over the family room of her house. She testified that on seeing the papers, she felt that someone had been at her home. As she proceeded to check other areas of her house, she heard a voice saying "I have a gun on you lady, don't turn around, don't you see my face or you are dead." Mrs. Doty testified that she did not see the intruder "clearly", but could tell that he was a black man, and that he wore a jacket and gloves. She stated that the intruder demanded money after binding her arms with tape. He forced her into the living room and made her kneel in front of a chair. She was choked by him. Mrs. Doty testified that the man was at her residence for more than forty-five minutes, and that he took a VCR, cameras, a pair of opera glasses, a calculator, a watch, and then fled with her car. Mrs. Doty suffered severe bruising to her neck, arms and back. Cornelia Thompson of 12717 Brooklawn, Cleveland, Ohio, testified that on October 15, 1988, she and her friend, Debby Howard were out for the evening. She testified that they came back to the house at approximately 12:30 a.m. They went to sleep in Mrs. Thompson's bedroom at about 1:45 a.m. and were awakened by an unusual sound. Mrs. Thompson testified that "I turned towards my bedroom door and in my doorway was a man standing - 4 - there". She testified that the intruder had a "white face and a white hair". The man said to her "Bitch, this is no joke, this is no joke at all". He put a gun up to Mrs. Thompson's face. He told her to cover her friend's mouth and informed her that her three children had been killed. The man demanded that they give him the jewelry they were wearing. She stated he raised up my skirt and Debby's blouse and ripped our panties off". She testified that the intruder instructed Debby to perform oral sex on her. "Then he pulled our legs apart, pulled Debby over on top of me, and told Debby that she was going to have to eat me out, while he was going to have her." Debby Howard testified that the intruder forced her to have both anal and vaginal intercourse and also forced her to perform oral sex on him, repeatedly. She testified that "I have to back up to the end of the bed and he was standing and he was in my vagina, *** and then in my rectum, and it hurt ****. Then back in my vagina again, and then in my mouth, and then when he came in my mouth, I spit it in the sheet, and then he made me wipe him off ***." He tied the two women up and searched through the house for valuables. Both women described the intruder to the police as a black male. Mrs. Thompson described him as being about six feet tall and "big". Mrs. Thompson and Ms. Howard went to the police station about two weeks after the incident and identified the items taken on October 15, 1988. Mrs. Thompson, in her testimony, stated that she was unaware on the night in question - 5 - that the intruder wore a mask. However, she positively identified the face mask confiscated from the appellant as the "face" she saw on the night of October 15, 1988. Officer Donegan of the Cleveland First District Police Department testified that on September 13, 1988, he responded to a call at 13921 Tyler Road, Cleveland, Ohio. Upon arrival, Officer Donegan testified that he met other officers and also spoke to Mrs. Lugo. He testified that Mrs. Lugo was extremely upset and had bruises and cuts on her face and on one of her hands. Officer Richissen of the Cleveland Police Department testified that he and Officer David Carroll were on patrol on September 28, 1988. He testified that they observed a car that fit the description of Mrs. Lugo's stolen vehicle. Officer Carroll testified that the car tried to elude them, which resulted in a high speed chase. Officer Carroll stated that several times during the chase, the officer's zone car was parallel with the car being chased, and Officer Richissen had a clear view of the driver of the vehicle. The stolen car eventually crashed into a parked school bus. The driver then jumped out of the car and escaped through the alley. Officer Richissen identified appellant out of a photo line- up about one month after the chase. Officer Carroll also testified that he had observed the driver of the stolen car several times during the chase because the driver continuously looked at the patrol car. Officer Carroll identified appellant - 6 - out of a photo array as the driver of the chased stolen vehicle. Officer Carroll also made an in-court identification of appellant. On October 29, 1988, appellant was arrested and charged for offenses committed against Ana Lugo, Connie Thompson, Mary Doty and Debby Howard. Officer Robert Matuszny testified during the suppression hearing that appellant made voluntary statements pertinent to the crimes charged against him. The police submitted the bed sheet removed from Mrs. Thompson's home to Cellmark laboratories for a DNA test. Lois Tonnelli, an employee of Cellmark, testified that the DNA found on the bed sheet matched a blood sample taken from appellant. III. Appellant's assignments of error are as follows: "I. THE WEIGHT OF THE EVIDENCE AS TO EYEWITNESS IDENTIFICATION OF DEFENDANT FALLS FAR SHORT OF THE STANDARD OF A FINDING OF GUILTY BEYOND A REASONABLE DOUBT. "II. THE TRIAL COURT ERRED IN ADMITTING A CONFESSION WHICH OCCURRED WHILE THE DEFENDANT WAS UNDER THE INFLUENCE OF DRUGS AND/OR ALCOHOL. "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT ADMITTED THE RESULTS OF DNA TESTING, THE EXISTENCE OF WHICH WAS MADE KNOWN TO THE DEFENSE ONLY THREE WEEKS BEFORE TRIAL. "IV. LOWER COURT ERRED TO THE PREJUDICE OF THE DEFENDANT AND DENIED DEFENDANT A FAIR TRIAL WHEN THE COURT PERMITTED TESTIMONY REGARDING OTHER CRIMES BY THE DEFENDANT WHICH WERE NOT PART OF THE INDICTMENT." - 7 - Appellant, in his first assignment of error, argues that his identification as the perpetrator of the crimes was not proved beyond a reasonable doubt. Appellant specifically challenges the eyewitness identification by various state witnesses as not being credible. Appellant further challenges the state's circum- stantial evidence as not being irreconcilable with the theory of his innocence. Courts have generally held that a due process violation will not be found where an identification does not stem from an impermissibly suggestive confrontation but is instead the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U.S. 1, 5. The Ohio Supreme Court, in State v. Moody (1978), 55 Ohio St. 2d 64, 67, held that: "'Although the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the subsequent in-court identification. See State v. Barker (1978), 53 Ohio St. 2d 135, 142-143 [8 O.O.3d 213]. As noted in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 154, "*** reliability is the linchpin in determining the admissibility of identification testimony ***." The factors affecting reliability include "*** the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers (1972), 409 U.S. 188, 199. Thus, although the identification procedure is suggestive, so long as the challenged identification itself is reliable, it is admissible. Manson, supra, at 151.'" In the case sub judice, Mrs. Lugo testified that while she was "fighting" with appellant, his mask came off and she saw his face. Mrs. Lugo identified appellant in a police physical line- - 8 - up as the man who forced her to engage in sexual intercourse. Mrs. Lugo further identified appellant in court. The identification of appellant in a line-up by Mrs. Lugo was not too far apart in time from the date of the incident. Appellant was at the Lugos' for about one and one-half hours. Mrs. Lugo was repeatedly assaulted by the intruder, and the intruder had sufficient time to walk around various parts of the house which presented Mrs. Lugo with further opportunity to get a better description of him. Thus, in applying the factors enunciated by the Moody court, we hold that appellant's identification by Mrs. Lugo did not violate his right to due process. Appellant further challenges the circumstantial evidence presented by the state as not being irreconcilable with his innocence. Appellant's argument is in reference to the identification of appellant by Mrs. Thompson, Ms. Howard, and the police officers who made a chase of the car reportedly described as the car stolen from Mrs. Lugo. Mrs. Thompson identified the mask shown to her by the police as the same one used by the man who broke into her house and forced her to engage in sexual intercourse. The police recovered the mask from appellant. The police officers identified appellant as the individual who was driving Mrs. Lugo's reported stolen car on the date of the high speed chase. Detective Matuszny testified that items missing from the victims' homes were found at appellant's residence. Appellant's citation of - 9 - State v. Kulig (1974), 37 Ohio St. 2d 157, as controlling, cannot be considered by this court since the ruling in Kulig is no longer applicable in Ohio. The Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St. 3d 259, in overruling State v. Kulig, supra, held that: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974] 37 Ohio St. 2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)" The holding in Jenks stands for the proposition that the issue of circumstantial evidence is viewed not in light of whether the circumstantial evidence is irreconcilable with any reasonable theory of defendant's innocence, but whether the trial court properly instructed the jury on the standards for reasonable doubt. In the within case, the trial court's instruction to the jury followed the Kulig court's holding. In spite of the fact that the trial court based its jury instruction on the Kulig rule, which is no longer good law in Ohio, the evidence adduced at trial was sufficient for the jury to conclude that appellant was the perpetrator of the crimes charged against him in the indictment. A reviewing court will not reverse a conviction where there is substantial evidence upon which the trier of fact could - 10 - conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. Further, issues of credibility and the weight to be given evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Appellant cites State v. Buell, infra, as controlling. We fail to see how the decision in State v. Buell (1986), 22 Ohio St. 3d 124, when applied, will change the outcome of the within case. The state is not contending that certain factors cannot affect eyewitness identification. The trial court is not mandated by the Buell court to instruct the jury on a possible physical impairment which could affect a witness' ability to observe or recall events when there is no evidence in the record to warrant such instruction. Nothing in life is so precise that there cannot be a margin of error, and law has never been an exact science. Therefore, the issue of an eyewitness identification is not whether there could be possible flaws in the procedure, but whether in light of the totality of the circumstances, to what extent the factors enunciated by the Moody court are ignored in determining the reliability of eyewitness identification. In the within case, the evidence presented by the state in conjunction with the testimony of the state witnesses is consistent with the Moody holding. Appellant's first assignment of error is overruled. - 11 - IV. Appellant, in his second assignment of error, contends that the trial court erred by admitting the confession he made while under the influence of drugs and/or alcohol. Appellant further argues that he was physically coerced by police officers at the time of his interrogation, thereby rendering his confession involuntary. Appellant argues that his refusal to sign the purported confession indicates that the confession was not voluntarily made by him. The burden of proving voluntariness of a confession is upon the prosecution, which it must show by the preponderance of the evidence. State v. Garcia (1986), 33 Ohio App. 3d 38; Lego v. Twomey (1972), 404 U.S. 477. Appellant's contention that he was coerced by the police is not manifest in the record. Appellant admitted when questioned by the prosecutor that he was aware that he did not have to talk to the police officers. Appellant refused a search of his house by the officers without a warrant. Appellant, when asked by the prosecutor, "But they did threaten you and got that oral statement out of you; is that your testimony today?", responded, "Well, like I said, he threatened me. He didn't never say anything threatening. He just said, 'You better talk.'" Like appellant, we fail to see anything threatening in the record. Appellant's argument, that the "Sheiba joint" he smoked before he was questioned by police affected his confession, is unpersuasive. The trial court, in overruling appellant's motion to suppress, stated: - 12 - "Having heard the testimony and the arguments of counsel, the court believes that the defendant was clearly aware of his Constitutional rights. He refused to allow a search of his home without a warrant. He admits that he was aware enough of his rights that he asked for a lawyer. Furthermore, if he had been high from any drugs, by his own testimony, the effect of those would have worn off by the time of his questioning. . . "It appears that there is no reason to dispute the testimony of the detective that the statement was made knowingly, intelligently and voluntarily, and, thus, should not be suppressed." We agree with the trial court, and hold that there is nothing in the record to indicate that appellant's statement to the police was involuntary. See Colorado v. Connelly (1986), 107 S.Ct. 515. Appellant's second assignment of error is overruled. V. Appellant, in his third assignment of error, argues that the trial court erred by admitting the results of the DNA test, when he was only made aware of the test three weeks before trial. We note that appellant did not object to the introduction of the DNA test evidence, nor did he ask for a continuance due to insufficiency of time to challenge the DNA testimony. Appellant has failed to show how the DNA test caused prejudice to his case. The transcript of the trial indicates that appellant did not object to the three weeks continuance granted by the court. Quite to the contrary, the following colloquy took place on the issue of the DNA test: "MR. LONJAK: Tuesday morning I became aware of the results of a DNA test. I informed Mr. Lippe of the test. I also gave him a copy of the test results and I did ask to amend my discovery to include the name of the representative of Cellmark who did the testing with - 13 - respect to DNA. There had been some discussion about that and I believe I was precluded from using that testimony if we were beginning this week. "In view of the fact that we have almost a three week continuance, the State again would ask whether we could amend our discovery to include the witnesses which would be pertinent with respect to the testimony of a DNA test and the results of that test. "THE COURT: Mr. Lippe. "MR. LIPPE: Your Honor, at this time the prosecutor's amending his discovery. We would make an objection and let the court rule on it. Since this case has been continued for nearly a year, we don't think that should happen, but we have no problem now that we have three weeks to investigate the findings." Crim. R. 16(D) states as follows: "Crim. R. 16: "(D) Continuing duty to disclose. If, subsequent to compliance with a request or order pursuant to this rule, and prior to or during trial, a party discovers additional matter which would have been subject to discovery or inspection under the original request or order, he shall promptly make such matter available for discovery or inspection, or notify the other party or his attorney or the court of the existence of the additional matter, in order to allow the court to modify its previous order, or to allow the other party to make an appropriate request for additional discovery or inspection." Where, in a criminal trial, the prosecution fails to inform the accused of evidence it presents, pursuant to Crim. R. 12(D), the use of such evidence need not be suppressed if the act was not willful and the accused is not prejudiced by its use. State v. Emmons (1978), 57 Ohio App. 2d 173. As stated by the court in State v. Walters (1985), 27 Ohio App. 3d 186: "[a] defendant demonstrates prejudice from the failure of the State to disclose evidence during discovery when the record indicates...1) that the failure to provide discovery was willful, 2) the defendant demonstrates - 14 - how foreknowledge of the...[evidence]...would have benefitted the preparation of his defense and 3) the defendant demonstrates that he was prejudiced by the admission of the evidence." In the within case, the state informed appellant's counsel about the DNA test the same day it received the results of the test. Appellant's counsel, as stated supra, did not ask for a continuance as was his right to ask. Appellant's counsel indicated that he had no problem with the three weeks he had "to investigate the findings." We fail, therefore, to see how the state willfully withheld information from appellant as he indicated. We equally fail to see how the DNA test would have benefited the preparation of appellant's defense seeing that the DNA test matched appellant's blood type. Appellant cites Frye v. United States (1923), 243 F. 1013, as controlling. The Frye court, in determining the reliability of scientific evidence, states: "Just when a scientific principle or discovery crosses the line between the experimental and demonstratable [sic] stages is difficult to define. Somewhere in this twilight zone, the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. The Frye test requires that the scientific principle be a generally accepted method by experts in the relevant scientific community. We note that DNA has been used in many jurisdictions in this nation. See Andrews v. State (1988), 533 So.2d 841. We equally notice that DNA, like any scientific - 15 - experiment, has its shortcomings. Appellant has not presented any evidence in the within case showing that the DNA test was improperly conducted. As stated in State v. Williams (1985), 4 Ohio St. 3d 53: "Like our counterpart in Maine, we refuse to engage in scientific nose counting for the purpose of deciding whether evidence based on newly ascertained or applied scientific principles is admissible. We believe the Rules of Evidence establish adequate preconditions for admissibility of expert testimony, and we leave to the discretion of the State's juridiary [sic], on a case by case basis, to decide whether the questioned testimony is relevant and will assist the trier of fact to understand the evidence as to determine a fact in issue." Appellant's counsel cross-examined the expert witness on the DNA test, thereby leaving the issue of credibility of the witness' testimony to the jury. State v. DeHass (1967), 10 Ohio St. 2d 230. Having failed to find that appellant was prejudiced by the DNA test, we hold that the trial court has not abused its discretion under crim. R. 16(E)(3) by permitting the DNA testimony to be admitted into evidence. See State v. Parsod (1983), 6 Ohio St. 3d 442. We note that the state did not rely exclusively on the DNA test to make its case. The eyewitness testimony of the victims was sufficient to convict appellant. Appellant's third assignment of error is overruled. VI. Appellant, in his fourth assignment of error, argues that he was denied a fair trial when the trial court permitted testimony of other crimes. Appellant's challenge emanates from the statement of the prosecutor during opening argument. The - 16 - prosecutor, in an attempt to describe the events that led to appellant's arrest, made the following remarks: "On the night of October 29th, 1988, this person made a mistake. He was seen trying to enter two different houses. He was seen by a Plain Dealer carrier, or identified by a Plain Dealer carrier, who described the clothing, and was able to get a license plate, and when the police were notified, they tracked down this car. "An officer by the name of Markus and an officer by the name of Regra, again got into a high speed chase, eventually pulling this person over, and when the person got out of the car, when the police arrested this man, it turned out to be Johnnie Knight. "In that particular car, they found a mask, a mask that the police eventually determined was used in these other cases." This court held in State v. Rogers (June 6, 1991), Cuyahoga App. No. 58557, unreported, that: "Ohio Rules of Evidence 404(B) is tailored toward Federal Rule of Evidence 404(b). "Fed. Evid. R. 404(b) states: "'(b) Other Crimes, Wrongs, or Acts. 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.' "The rationale behind the rule that the prosecution cannot introduce evidence of character trait of the accused as part of its case in chief/1/\, 'evidence of the commission of other crimes, wrongs or acts by the accused is inadmissible for the purpose of showing a disposition or propensity to commit crimes' is to avoid the inference that the accused committed the crime as /1/\ "In cases when the accused is prosecuted for rape or attempted rape, see R.C. 2907.02 and 2907.05." - 17 - charged or is a bad man deserving of punishment. United States v. Phillips (1979), 599 F.2d 134, 136." In the within case, appellant's argument of evidence of other crimes has no merit. Appellant was charged with the rape of different women. The rapes occurred at different times. Each rape constituted a separate crime. All the victims of the rape and the burglaries testified that appellant wore a mask. The mask was found on appellant when he was arrested. The state's witnesses identified the mask as the very one they saw when they were victimized. The word "these" is used by the prosecutor to describe various acts involving the mask. The testimony of various state witnesses confirmed the prosecutor's statement. The record shows that no further mention of appellant's other crimes were made throughout his trial. Therefore, the facts of this case precludes us from holding that evidence of other crimes committed by appellant, for which he was not charged were introduced actually or implicitly. Appellant was, therefore, not prejudiced by the prosecutor's remarks. Appellant's fourth assignment of error is overruled. Judgment affirmed. - 18 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and J.F. CORRIGAN, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .