COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58081 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RALPH BLEVINS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 16, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-225,807 JUDGMENT : AFFIRMED IN PART AND : VACATED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: David L. Doughten 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, J.: Ralph L. Blevins appeals his convictions of aggravated robbery, possession of criminal tools, and having a weapon while under a disability. For the reasons set forth below, we affirm in part and vacate in part. On February 23, 1988, the Ohio Central Credit Union located at 25200 Chagrin Boulevard in Beachwood was robbed. A man carrying a gun handed a teller a brown valise and asked for money. A customer at the credit union, Renee Benning, testified that the man said no one could leave the building because there was another man outside with a gun. The tellers put about $2,100 cash including bait money into the valise and gave it back to the robber. The robber left. Renee Benning saw the robber walk away, while talking with a second man. Other bank employees saw two men getting into a Monte Carlo. Witnesses identified Blevins as the man getting into the Monte Carlo with the robber. They also saw the license number. About three hours later, Lieutenant Robert Legg of the Cleveland Police Department saw a 1974 Monte Carlo with the license plate number reported from the Beachwood robbery. Two men, Frank Davis and Ralph Blevins, were in the car. Legg found a brown valise containing $2,150 in cash in the trunk. The cash included the serial numbers of the credit union's bait money. Frank Davis pled guilty to aggravated robbery. Blevins was charged with two counts of aggravated robbery with gun and aggravated felony specifications; two counts of felonious assault -3- with gun and aggravated felony specifications; possession of criminal tools with gun and violence specifications; and having a weapon while under a disability with gun and violence specifications. At Blevins' trial, the prosecutor nolled the felonious assault counts and the firearm specifications. The jury returned guilty verdicts on all other counts and Blevins timely appealed. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED BY ALLOWING TESTIMONY OF DEBRA MOLINA TO BE ADMITTED AS SUBSTANTIVE EVIDENCE AS SUCH ADMISSION VIOLATED THE APPELLANT'S RIGHT TO CONFRONTATION. In Ohio v. Roberts (1980), 448 U.S. 56, at 66, the United States Supreme Court stated as follows: In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability". Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trust worthiness. The court described these guarantees of trustworthiness to include the witness being under oath, the accused being present and represented by counsel, the accused having the opportunity to cross-examine the witness, and the proceedings being recorded. Id. at 69. -4- In this case, the parties agree that the witness Debra Molina was unavailable to testify at appellant's trial. Molina did testify at appellant's preliminary hearing. She described her car, a Monte Carlo, and stated that appellant had borrowed it on the morning of the robbery. She also stated that appellant did not tell her why he wanted the car, and that he did not return it to her on that same day. Appellant's counsel was given the opportunity to cross-examine but had no questions. Appellant claims that admission of Molina's preliminary hearing testimony at his trial violated the confrontation clause. He claims specifically that his rights were violated because he was represented by different counsel at trial, who did not have the opportunity to cross-examine the witness at the preliminary hearing, and because his counsel at the hearing did not take the opportunity to cross-examine the witness. Having different counsel at a preliminary hearing and a subsequent trial does not violate the Sixth Amendment. See State v. Madison (1980), 64 Ohio St. 2d 322, 329 fn.2; Ohio v. Roberts, see supra, at 72. Failure to take the opportunity to cross-examine a witness also does not violate the confrontation clause, where there is an opportunity to cross-examine and the testimony is otherwise trustworthy. See State v. Jester (1987), 32 Ohio St. 3d 147, 154. In this case, the record reflects that the testimony was trustworthy. Debra Molina was under oath at the preliminary hearing. Appellant was present and represented by counsel. The -5- proceedings were recorded. Appellant's counsel had the opportunity to cross-examine the witness. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error reads as follows: THE TRIAL COURT ERRED AND DENIED THE APPELLANT A FAIR TRIAL BY LIMITING APPELLANT'S SCOPE OF CROSS- EXAMINATION OF THE STATE'S WITNESSES IN VIOLATION OF THE OHIO RULE OF CRIMINAL PROCEDURE 16(B)(1)(G) AND HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO CONFRONTATION. Crim. R. 16(B)(1)(g) states as follows: (g) In Camera Inspection of Witness' Statement. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. If the court determines that inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies. If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examination or comment thereon. Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal. In State v. Hartford (1984), 21 Ohio App. 3d 29, paragraph three of the syllabus, this court held as follows: Not every omission, during testimony, of details contained in a witness' statement to police constitutes an inconsistency within the meaning of -6- Crim. R. 16(B)(1)(g). However, material omissions may under certain circumstances be fairly construed as inconsistencies. This court has also explained that the inconsistencies must be substantial or significant in nature, i.e. such as when an accurate recounting would naturally include the omitted facts. State v. Steele (March 1, 1990), Cuyahoga App. No. 58234, State v. Fredericy (April 19, 1984), Cuyahoga App. No. 47273. In this case, Kelly Mary Joyce did not say that appellant wore thick glasses when she made her initial statement to police. She identified appellant as one of the men leaving the credit union in the Monte Carlo from a photo array. At the preliminary hearing, she testified that it seemed like appellant had something on his face, and that he could have had glasses on. At trial, she stated that appellant wore glasses. The trial court examined Joyce's pretrial statement to determine whether it was inconsistent with her trial testimony. The court and counsel agreed that there were no inconsistencies. They characterized Joyce's failure to mention the glasses as an omission. Defense counsel did not object to the court's determination. The trial court did not err in determining that Joyce's statement was not inconsistent with her testimony. Appellant's glasses were a small detail of Joyce's story. Her testimony was consistent with her statement in its significant aspects, including the license number, the make of the car, and her description of the events. Joyce admitted that she saw the men -7- from a distance and that she was unable to minutely describe their physical characteristics. Her omission that appellant wore glasses was not a significant omission in context. Appellant's second assignment of error is overruled. III. Appellant's third assignment of error reads as follows: THE TRIAL COURT ERRED BY ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE HEARD AND REVIEWED BY THE JURY. Evid. R. 404(B) reads as follows: (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. In State v. Lytle (1976), 48 Ohio St. 2d 391, vacated in part on other grounds (1978), 438 U.S. 910, the court held as follows in paragraph three of the syllabus: Error in the admission of other act testimony is harmless when there is no reasonable possibility that the testimony contributed to the accused's conviction. (Crim. R. 52[A]; Chapman v. California, 386 U.S. 18.) The evidence at issue is a letter written by appellant to Ann Marie Maldonado. Moldonado testified that she had never met appellant. Apparently appellant knew of Maldonado through a friend of hers who was incarcerated with appellant. The defense stipulated that the handwriting on the envelope and letter was that of appellant. Maldonado read the letter at trial as follows: -8- A. Page one, "Hello, Ann Marie Maldonado, excuse me for" -- Q. Could you read it more slowly so we can all understand it? A. "Excuse me for barging into your life like this, but an emergency dictates that I had to. (Sic.) "You had" -- "you had Joe" -- "your man Joe and I became friends, and potential future business partners when he was here in the jail, but since his release I've not heard from him. Needless to say I am very disappointed because I won't" -- * * * A. "I went out of my way to" -- "I went out of my way to set some things up for him, this can make him a very rich young man, plus I need him to find someone for me to say I was with them on February 23rd, on a Tuesday, 1988, around 2:30, 3:00 o'clock p.m., for this friend" -- "for this -- for this friends of mine are willing to pay a nice price. (Sic.) "Ann Marie, I'm pretty" -- "I'm pretty big in the cocaine and weed business, and help those that help me, because I believe a person should always take care and respect those that is for him a hundred percent. This is a love or business. (Sic.) "Your Joey is a nice kid, but he seems to be for those that doesn't really" -- Q. If you can't read the word just go on to the next one. A. -- "doesn't really" -- something "any good. (Sic.) "I really want to help him all I can, but he must want to help himself first. (Sic.) "So if you can get him to take care of things like he told me he would, and tell him about the witness I need, or if yourself know someone" -- "someone that can make some money" -- Q. Keep your voice up please. -9- A. -- "someone, that you can make money because of it. Plus I will be" -- "be a friend to you for life, and you can get any favor from me you want. (Sic.) "No friends of mine ever do bad or have" -- Q. If you can't read the word just skip over it. A. Something "money. (Sic.) "I need someone to say that I met them in the Terminal Tower on Tuesday, February 23rd, and we were having" -- "and we had a McDonald's hamburger and a Coke, medium, together. And the reason they remember that day is because when they call me the next" -- "call me the next day at 752-9803, they told me" -- "they were told that I was in jail. (Sic.) "Like I said, I will pay" -- "I will pay good for such a witness. Okay? (Sic.) "Write me and let me know" -- if something, "if you" -- "if you know any females who will do it. (Sic.) "Also, send your phone number so I can have my sister call you and work things out. Thanks. (Sic.) "A little about myself, I did time ten years ago for bringing six kilos of Coke into the country from South America." Q. What does that say again? MR. OLIVER: Objection. THE COURT: Sustained. Go ahead. It speaks for itself. THE WITNESS: Start from where I was? THE COURT: Go right ahead from where you left off. THE WITNESS: "I have lived in Germany, Sweden, South America. I was born in Alabama, but grew up in Michigan. (Sic.) "Well, thanks again, and get Joey on the case for me. Okay? (Sic.) -10- "Chow time." Appellant admits that the portions of the letter regarding appellant's attempt to create an alibi are "arguably relevant". Appellant objects to the admission of the portions of the letter which stated that appellant was in the cocaine and weed business, and that he had done time for a previous drug offense. In this case, appellant was arrested in the car used to rob the credit union about three hours after the robbery. Eyewitnesses identified appellant from photographs and in person. Appellant also attempted to create an alibi. In light of the overwhelming evidence of appellant's guilt in this case, the admission of references to drug trafficking did not contribute to the conviction and did not constitute plain error. Appellant's third assignment of error is without merit. IV. Appellant's fourth assignment of error reads as follows: THE TRIAL JUDGE ERRONEOUSLY SENTENCED THE APPELLANT TO A THREE YEAR FIREARM SPECIFICATION PURSUANT TO R.C. 2929.71. On counts I and II, the court sentenced appellant to "three (3) years actual . . . plus ten (10) to twenty-five (25) years, to run consecutive to three years actual" pursuant to the firearm specification and R.C. 2929.71. However, the firearm specifications for all counts were dismissed at trial. R. 229- 221. Appellant's fourth assignment of error is sustained. -11- Appellant's sentence of three years actual imprisonment is vacated. The convictions are otherwise affirmed. -12- 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, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JOSEPH J. NAHRA 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. .