COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59476 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIE SIMS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 237284. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor William D. Ailer Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: John A. Frenden, Esq. 930 Leader Building Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Defendant-appellant Willie Sims ("Sims") appeals from his jury trial conviction of one count of felonious assault [R.C. 2903.11] with a gun specification. For the reasons adduced below, we affirm. A review of the record reveals that on February 20, 1989, at approximately 5:00 p.m., Darryl Pinkney ("Darryl") passed Sims on the sidewalk near 6102 Quimby Avenue in the City of Cleveland. Darryl's girlfriend at the time was defendant's sister. Sims had just been dropped off by a car following the end of his workday. Words were briefly exchanged between these two men. Sims went into his mother's house at 6102 Quimby Avenue and Darryl walked down to work on a truck which was parked on the street nearby. Darryl claimed that while working on the truck, he noticed that Sims was staring at him from a third-floor window. Darryl's uncle, Ronald Pinkney, was assisting him. After about twenty minutes, the men ceased working and, accompanied by the uncle's two young children and the uncle's girlfriend, started to walk to the Pinkney home located at 6110 Quimby Avenue. The Sims' and Pinkney houses are separated by one residence. As the group passed the intervening structure, Sims allegedly leaned out of the window with a single barrel shotgun, shouted at Darryl, then pulled the trigger. A click was heard by the group on the street when Sims pulled the trigger on an empty chamber in the shotgun. The group on the street then heard Sims cock the shotgun, followed shortly by a blast from the shotgun. The group on the -3- street fled in various directions. The impact from the shotgun's projectile struck the dirt directly behind the running feet of Darryl, raising a puff of dirt from the cold, hard earth. Both Darryl's uncle and the uncle's girlfriend testified that they saw the defendant point the shotgun from the window. Defendant's mother, testifying on her son's behalf, claimed that Sims was not home at the time of the shooting. She stated that she telephoned Sims at 6:30 p.m. at her daughter's house several blocks away and told him to come home. Both Mrs. Sims and defendant believed that Darryl had stolen a handgun that belonged to Mrs. Sims. The mother also stated that there never was a shotgun in her house and that Sims, to her knowledge, did not handle guns. Eddie Sims, the brother of the defendant, testified that the third floor room in question was his bedroom and that he kept the door locked at all times. Only he and his girlfriend allegedly had a key to the lock. Also, he claimed he was not at home at the time of the shooting. Walter Mueller, Sims' employer, testified that Sims clocked out from his job at East 30th Street and Payne Avenue at 5:05 p.m. on the day of the shooting, and it would take a fifteen minute drive to reach the Sims' home from the workplace. John Driver, Jr., testifying for Sims, stated that he was at Mrs. Sims' daughter's house when Sims arrived there around 5:00 p.m. He claimed that Mrs. Sims telephoned there at about 5:30- 5:45 p.m., and Sims left for home around 6:15 - 6:30 p.m. Mr. -4- Driver stated that the distance between the mother's house and the daughter's house was three to four blocks, a five minute walking distance. Notably, Mrs. Sims' daughter did not testify. Following the close of defendant's case-in-chief, the prosecution produced three rebuttal witnesses. Darryl, on rebuttal, testified that, prior to the time of the present incident, he witnessed Sims on several occasions carry a shotgun within the confines of his mother's house, and fire a shotgun outside. Alprentis Pinkney, the younger brother of Darryl, testified on rebuttal that he was on the porch of the home at 6110 Quimby Avenue at the time and had seen a shotgun's "fiery blast" from the third-floor window in question and had later viewed up close the impact area. Darryl's uncle testified on rebuttal that he witnessed Sims shoot a shotgun on the New Year's Eve prior to the incident in question. The defense cross-examined each of these rebuttal witnesses. Both parties then rested. At that time the defense objected to the use of rebuttal testimony and renewed its motion for acquittal. The court denied both motions. Following the charge to the jury, the jury returned a verdict of guilty. The defendant was sentenced and this appeal raising one assignment of error followed. -5- THE COURT ERRED IN FAILING TO SUSTAIN DEFENDANT'S OBJECTION TO REBUTTAL TESTIMONY OF ALPRENTIS PINKNEY AND THAT THIS FAILURE CONSTITUTED AN ABUSE OF DISCRETION. The objection to the use of a portion of the rebuttal testimony was not raised in a timely manner so that any alleged error could have been avoided or corrected by the trial court. Any error therein was waived. State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus; Evid. R. 103(A). Were we to disregard the issue of waiver, the evidence elicited by the rebuttal witness, that a shotgun was used in the shooting, was proper rebuttal testimony to the defense theory that: a BB gun was used in the shooting rather than a shotgun; and, that there was no shotgun in the Sims' household. Even if the testimony of the one rebuttal witness was improperly admitted, which it was not, the remaining testimony of the prosecution's witnesses, who all indicated a shotgun was used, rendered any error in the admission of the rebuttal testimony to be harmless in nature. Assignment overruled. Judgment affirmed. -6- 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. ANN MCMANAMON, P.J., and JERRY HAYES*, J., CONCUR. JAMES D. SWEENEY JUDGE *Jerry Hayes, Domestic Relations Court, Portage County, sitting by assignment. 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. .