COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59453 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD MORRIS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-243040 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. BARBARA JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR 43 E. Bridge Street BY: BLAISE THOMAS, ESQ. Suite 101 ASSISTANT COUNTY PROSECUTOR P.O. Box 112 The Justice Center Berea, Ohio 44017 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Richard Morris, was indicted on two counts of felonious assault, R.C. 2903.11, and one count of having a weapon while under a disability, R.C. 2923.13, (with a firearm specification). After a jury trial appellant was acquitted on one count of felonious assault but was convicted of the firearm specification, of having a weapon (a firearm) while having had a prior conviction for an offense of violence, and of the lesser included offense of aggravated assault, R.C. 2903.12. The trial judge sentenced appellant to an initial three-year term of actual incarceration for the firearm specification and concurrent eighteen months to five-year terms for the other counts. On appeal appellant assigns two errors for review. I APPELLANT'S CONVICTION ON COUNT III OF THE INDICTMENT, HAVING A WEAPON WHILE UNDER A DISABILITY, AND THE FINDING THAT THE APPELLANT HAD [A] WEAPON ON OR ABOUT HIS PERSON OR UNDER HIS CONTROL DURING THE COMMISSION OF THE OFFENSE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant was convicted of having a weapon while under a disability (knowingly acquiring, having, carrying or using a firearm or dangerous ordnance on August 16, 1989 while having been convicted of a felony of violence) and with having a firearm on or about his person or under his control while committing the offense of having a weapon while under a disability. - 2 - Appellant contends that appellant only "had" the firearm when he disarmed his wife and put the gun away for safekeeping. Nevertheless appellant had no privilege to take away a weapon which belonged to his wife and which she says she carried to protect herself after appellant struck her. Appellant's wife testified as follows: she and her husband argued after their daughter stayed out late and went to a relative her husband had forbidden. Appellant slapped their daughter (the count of felonious assault on which appellant was acquitted) and then turned on her and accused her of letting their children be with her sister. She told him to get out of her face and pushed him but he pushed her back and struck her in the face. After appellant went downstairs she got the handgun she owned and went downstairs to leave the house. She was not sure that the "misunderstanding" was over so she took the gun for "insurance". She was holding the gun in her hand but did not have her fingers on the trigger when appellant stopped her and tried to get the gun from her. He told her to give it to him, walked up to her and they "tussled" over the gun. Appellant hit her to get the gun and, while they were tussling, he "got" her throat and obtained the gun. She did not remember pointing it but said that she probably waved it. She admitted having previously drawn a gun on appellant to protect herself when they were fighting. - 3 - Appellant testified as follows: when they argued upstairs his wife grabbed his face, pinched it and pushed him. They fought before he told her he would leave and he went downstairs but she came downstairs with a gun in her hand, which she pointed at him. He could not see whether her finger was on the trigger. He asked her what the gun was for and she said that she was getting out and he wasn't going to get in her way. She threatened to shoot him if he didn't get out of the way. He told her he wanted her to stay with their children and grabbed her when she started walking toward him. They tussled and he may have hit her (although he denied choking her) and when he got the gun he put it in a box in the closet. He insisted that when she had previously pulled a gun on him she was intoxicated. The police officer who responded to the daughter's call testified that appellant denied any need for the police but his wife said there was and let him in. He stated that her face was beaten and swollen and her neck had marks. He asked appellant where the gun was and he replied that he had no knowledge of a gun being in the house and they could search and not find one. Another officer found the firearm in the dresser. Appellant contends that a reviewing court is a "thirteenth juror." On the contrary, an appellate court is not a thirteenth juror. State v. Tyler (1990), 50 Ohio St. 3d 24, 33. "It is the minds of the jurors and not the minds of the judges of an appellate court that are to be convinced." State v. Petro - 4 - (1947), 148 Ohio St. 473, 501. Jurors resolve questions of fact, appellate courts determine questions of law. Here the question of law presented is whether or not the verdict is against the manifest weight of the evidence. In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus). This court has relied on guidelines to assist in the resolution of this question. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. Whether the evidence is uncontradicted; 3. Whether a witness was impeached; 4. What was not proved; 5. The certainty of the evidence; 6. The reliability of the evidence; 7. Whether a witness' testimony is self-serving. - 5 - 8. Whether the evidence is vague ... conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10 (at syllabus). Here, appellant lied to the officer about the existence of a gun and denied choking his wife when her injuries belied his version. Upon review of the whole record we hold that appellant's convictions were not against the manifest weight of the evidence. His prior conviction was proven. The jury rejected the self-defense claim. Appellant did acquire, have or carry a firearm while having a prior conviction for an offense of violence and did have a firearm on or about his person or under his control while committing that offense (not the aggravated assault). Assignment of error No. I is overruled. II APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. Appellant contends that the jury did not objectively consider appellant's testimony asserting self-defense because the actions of appellant's trial counsel prejudiced appellant. We will first separately state the alleged instances of substandard performance and then collectively address their prejudicial effect, if any. Specifically, appellant argues as follows: A During cross-examination of the victim trial counsel elicited opinion testimony concerning appellant's good character - 6 - which allowed the prosecutor to elicit opinion testimony concerning appellant's bad character. Although on re-direct examination the victim referred to a prior incident in which appellant had beaten her she also testified that appellant had been a good husband to her and a hardworking father to their children and had tried to prevent their children from getting involved with drugs. We find no error in counsel's decision. B Appellate counsel notes that although the court and the prosecutor agreed to delete three statements in two hospital records which stated that appellant had slapped his daughter, had beaten his wife and had again assaulted his "girlfriend" (sic) trial counsel objected. (Tr. 361.) The trial court allowed the unexcised records to be admitted because counsel objected and because "it is already in the evidence." (Tr. 361.) Counsel's objection does not have any bearing on whether the statements should have been deleted. If the statements should have been removed counsel's objection would be irrelevant to the court's decision. Evid. R. 803(4) states as follows: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ... (4) ... Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or - 7 - external source thereof insofar as reasonably pertinent to diagnosis or treatment. Although the statements may have been made for purposes of medical diagnosis or treatment and describing the cause they were not reasonably pertinent to diagnosis or treatment. The identity of the person who struck her was not reasonably pertinent to diagnosis or treatment. As the staff note states the exception "should not be a conduit through which matters of no medical significance would be admitted." "It has been consistently held by this court that statements by a patient concerning the cause of his injury, recorded in a hospital record, are not admissible as an exception to the hearsay rule." Mastran v. Urichich (1988), 37 Ohio St. 3d 44, 48. The admission was error. Counsel should have objected. C Appellant contends that trial counsel failed to stipulate to the prior conviction and keep it from the jury. It was not necessary to stipulate to the conviction in order to keep it from the jury. As the prosecutor noted at trial the violation specification could be heard by the judge at the sentencing hearing. R.C. 2941.143. (Tr. 15.) The count alleging having a weapon while under a disability could have been heard by the judge while the felonious assault counts were heard by the jury. The trial judge incorrectly insisted that because trial counsel refused to stipulate to the prior conviction the evidence proving the prior conviction would have to be presented to the jury. - 8 - (Tr. 21-22.) Later the trial judge agreed to the bifurcation (Tr. 184) but ultimately refused to bifurcate the third count (having a weapon while under a disability) because, the judge concluded, (incorrectly) that to do so would necessitate requiring the jury to stay on for a new trial (Tr. 289). In his opening statement the prosecutor had refrained from mentioning appellant's prior conviction. (He merely referred to having a weapon while under a disability as being an offense which prohibited having a weapon available or under control.) There was no reason for the jury to have heard of appellant's prior conviction. The third count and the violence specification should have been heard by the trial judge. However, appellant told the trial judge that trial counsel asked him if he had any prior convictions in the past ten years and he said no but that counsel stopped him from telling him that he had a fifteen-year old conviction. (Tr. 417-418.) Once the trial judge insisted that the jury hear the evidence of the prior conviction trial counsel should have stipulated to what he knew could be proved and thereby keep the prior conviction from the jury. D Appellant contends that trial counsel was admonished in the presence of the jury, argued with the judge and was found in contempt twice. We will limit our review to those actions of - 9 - counsel which took place in the presence of the jury since there is no indication that the other actions prejudiced appellant. Trial counsel attempted to question the officer who testified that the firearm was test-fired shortly before trial. When he asked about the owner the trial judge instructed counsel that ownership was not an issue and counsel agreed but insisted that the witness had raised it. Only after the trial judge repeated his ruling did counsel verbally concede. (Tr. 253.) Counsel nevertheless asked a question about ownership and the objection was sustained. Counsel then asked if the officer had witnessed any violence or acts between the Morrises and, upon receiving a negative response, asked if it was true that he did not know what happened that night. An objection was sustained and, when counsel said he would rephrase the question, the trial judge told him to go on to the next question. Counsel proceeded to merely rephrase the previous inquiry and was told by the trial judge that he had already asked if the officer had seen Mr. Morris strike anyone. Counsel insisted that he had not and was told that he had and should proceed. Later counsel attempted to have the witness answer whether the firearm was operable on the date of the incident and an objection was sustained. (Tr. 255.) When the witness asked if he was being required to testify to operability on the date of the incident rather than the fact that he test-fired it the day of trial counsel asked him whose opinion he had given when he testified on direct-examination. The trial - 10 - judge asked counsel not to argue with the witness and counsel said he wasn't. The objection to the line of questioning was again sustained. Counsel continued to pursue that issue and was told that the question had been answered and to move on. Instead of complying counsel said to the judge "I did --" and the judge had to repeat that the witness had already testified. Counsel again asked the same question and was again told that he had answered it and counsel should move on. Counsel disputed it by saying "He didn't answer --." A side bar was held at which the judge held counsel in contempt for arguing with the judge in the presence of the jury. Counsel insisted that he "did not argue with the judge." (Tr. 257.) E Appellant argues that trial counsel continually demanded re-cross examination and that the trial judge had to instruct the jury regarding the order in which witnesses are examined. The state's first witness was the daughter of appellant and his wife. Upon the completion of the prosecution's re-direct examination the trial judge told the witness to step down. When trial counsel said he had some re-cross the trial judge told him there was no re-cross and, when counsel protested, told the state to call the next witness. (Tr. 63.) The emergency room physician testified after Mrs. Morris' direct examination and upon completion of re-direct counsel again asked to be allowed to ask a few more questions but the trial judge told him that he - 11 - could not and that there is no re-cross examination. The trial judge then told the jury that "the rule is that there is direct examination, cross-examination and re-direct examination. We don't go on and on and on playing musical chairs. So that is why I denied Mr. Cox the opportunity to continue further cross- examination of this witness." (Tr. 150.) When Mrs. Morris had testified on re-direct trial counsel asked for re-cross and was permitted re-cross but "confined to new matter only." (Tr. 214.) When a fingerprint expert testified trial counsel requested re- cross but it was denied because, the trial judge said, there was no new matter. (Tr. 327.) The trial judge incorrectly instructed the jury and, in fact, eventually allowed re-cross on one occasion. Although a defendant must have the opportunity to cross-examine all witnesses against him as a matter of right ... the opportunity to recross-examine a witness is within the discretion of the trial court. ... Only where the prosecution inquires into new areas during redirect examination must the trial court allow defense the opportunity to recross-examine. ... We hold that where, as in the case sub judice, no new matters are explored on redirect examination, it is not an abuse of discretion for the trial court to deny defense counsel's request to conduct a recross-examination. (Citations omitted.) State v. Faulkner (1978), 56 Ohio St. 2d 42, 46. Far from being an instance of ineffectiveness, counsel's demand for re-cross was proper and an assertion of his client's right when, as here, the re-direct examination of the daughter and the doctor elicited new matters. - 12 - F Appellant argues that the trial counsel said "exception" after his objections were overruled and the trial court had to instruct counsel that it was not necessary. The trial court also later admonished counsel for arguing with the court. However, as appellant notes, these exchanges were not in the presence of the jury. G Counsel was repeatedly instructed to stop asking leading questions (Tr. 280-285), to ask only relevant questions (Tr. 237- 238), and to stop testifying during extended questions (Tr. 53 and 215). These exchanges should have occurred at side bar so that there would be no chance that the jury's opinion of appellant's counsel (and possibly appellant) would be affected. H Finally, appellant notes that the trial judge threatened to declare a mistrial and report counsel to the disciplinary counsel (Tr. 271) and that the judge told counsel of his aggravation and impatience with counsel (Tr. 357-360). Again, these comments were not made in front of the jury and there is no indication that the appellant was prejudiced. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O. 3d 495, 358 N.E. 2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) - 13 - To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St. 136 (paragraph two and three of the syllabus). Given counsel's conduct the jury may not have thought well of appellant or his counsel. Absent the testimony of the officer that the appellant lied about the presence of a gun in the house we would be more inclined to find that the jury was influenced to believe appellant's wife over appellant. However, there is not a reasonable probability that the result would have been otherwise. Assignment of error No. II is overruled. The judgment of the trial court is affirmed. - 14 - 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. SPELLACY, J., CONCURS IN JUDGMENT ONLY, AND HARPER, J., CONCURS IN JUDGMENT ONLY PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .