COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59918 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GERALD E. PIERCE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-245570 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS-JONES CUYAHOGA COUNTY PROSECUTOR BY: NANCY McDONNELL ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: ROBERT WILLIAMS 21430 LORAIN ROAD FAIRVIEW PARK, OHIO 44126 -2- SPELLACY, J.: Defendant-appellant Gerald E. Pierce ("appellant") appeals from his conviction for one count of Aggravated Murder, in violation of R.C.2903.01, with a firearm specification, and one count of Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification. The facts giving rise to the instant appeal are as follows: On October 19, 1989, Carthel Russell was drinking beer in Attitudes Bar, a Go-Go Bar located at West 25th and Clark Avenue, in the City of Cleveland, Ohio. While drinking his beer, he observed appellant take a whip from one of the dancers and then proceed to crack it himself. As appellant walked by Carthel Russell, the two exchanged a "high five." Carthel Russell had never met appellant before. Appellant retrieved his drink from the bar and returned to Carthel Russell. The two men struck up a friendly conversation and appellant bought a round of drinks. During their conversa- tion, appellant showed Carthel Russell a .38 caliber gun which he had in a black holster clipped to his pants. Appellant also exhibited both a Florida and Ohio driver's license. After Attitudes Bar, the two men then walked to a nearby bar called Gypsy's. In Gypsy's Bar, appellant bought another round of drinks for themselves and for a Hispanic man. Appellant motioned to the Hispanic man and the two walked toward the restrooms. While sitting at the bar, Carthel Russell observed appellant "pistol whip" the Hispanic man, causing him to stagger. -3- Subsequently, appellant and the Hispanic man left the restroom area and returned to the bar. As the Hispanic man walked past the bar, Carthel Russell struck him in the face. Appellant informed Carthel Russell that he liked what he did and that he was a good partner. Appellant and Carthel Russell decided to leave Gypsy's Bar and go to another bar. As they were leaving Gypsy's Bar, appellant saw a woman who he knew entering the bar. He approached her and told her that he should have killed her when he had a chance. Carthel Russell grabbed appellant and the two men left. Appellant and Carthel Russell eventually arrived at the Innkeeper's Bar. Once again, appellant bought a round of drinks for the two of them. Soon after, the victim, Timothy Weybrecht, arrived at the Innkeeper's Bar. Carthel Russell recognized Timothy Weybrecht, because he had just previously seen him in Gypsy's Bar. Timothy Weybrecht sat approximately four seats from appellant. When appellant saw Timothy Weybrecht, he turned to Carthel Russell and said, "You see the kid, I am going to f--- him up." Appellant then bought Timothy Weybrecht a drink and Timothy Weybrecht moved next to the two men./1\ /1\ There was a conflict of evidence concerning who summoned Timothy Weybrecht to sit next to appellant and Carthel Russell. Several witnesses testified that Carthel Russell summoned him, while Carthel Russell claimed appellant did. -4- For a short while, the three men sat at the bar and consumed their drinks. Appellant then said that he was tired of the west side and that they should all check out the east side. Carthel Russell told appellant and Timothy Weybrecht that he knew where they could meet some "strawberries"/2\ and have some fun. The three men exited the bar and once outside, appellant informed Carthel Russell and Timothy Weybrecht that his car was at the end of the alley next to the bar. In the alley, Carthel Russell and Timothy Weybrecht were walking side by side with appellant following them from behind. Suddenly, Carthel Russell slipped and fell forward and Timothy Weybrecht caught him and prevented him from falling. Just as Carthel Russell was about to thank him, appellant pulled out his gun, placed it underneath Timothy Weybrecht's ribs, and pulled the trigger. Timothy Weybrecht immediately fell to the ground. Carthel Russell nervously turned to appellant. Appellant calmly put his gun back into his holster and said, "Let's get out of here." Carthel Russell followed appellant as they quickly left the alley and returned to West 25th Street. Just as the two men got approximately twenty feet away from the alley, appellant stopped and told Carthel Russell that he was going back to the alley, in order to check and see what Timothy Weybrecht had on him. /2\ "Strawberries" is a term commonly used for women who agree to engage in sexual activity in exchange for drugs. -5- While appellant returned to the alley, Carthel Russell continued to walk on West 25th Street. About two minutes later, appellant caught up to Carthel Russell and told him to hurry up. In the meantime, James Kusinko, a baker who lived in the apartment adjacent to the alley, ran outside after he heard the gunshot. James Kusinko observed appellant walk past him in the alley and also saw what appeared to be a pile of garbage lying in the middle of the alley. James Kusinko found Timothy Weybrecht lying in the alley, thus, he went to the Innkeeper's Bar and told them to call the police. At the same time, appellant and Carthel Russell got into appellant's car and drove past the alley. As they drove by the alley, they observed two police cars parked at the scene. Appellant began to laugh and told Carthel Russell that Timothy Weybrecht deserved what he got. Appellant explained to Carthel Russell that Timothy Weybrecht and four other men had "punched his lights out" the previous week. Appellant drove away from the crime scene, but he was laughing uncontrollably, causing him to hit a parked car. Appellant got a flat tire, thus, he drove to a friend's house which was nearby. After appellant's flat tire was fixed, he and Carthel Russell continued to go from bar to bar. Later that night, the two men were arrested at Sensations Bar. The police searched appellant's car and retrieved a gun and holster from the glove compartment. Appellant and Carthel Russell were separated when they were arrested, and while Carthel -6- Russell was in custody, he provided the police with a full written statement. Timothy Weybrecht died after being transported to the hospital. He died as a result of a contact gunshot wound to the back which perforated bone and organs. On October 26, 1989, the Cuyahoga County Grand Jury indicted appellant for one count of Aggravated Murder, in violation of R.C. 2903.01, with felony murder and firearm specifications; one count of Aggravated Murder while committing an Aggravated Robbery, in violation of R.C. 2903.01, with felony murder and firearm specifications; and one count of Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification./3\ At his arraignment on November 2, 1989, appellant pleaded not guilty to the charges set forth in his indictment. On March 19, 1990, appellant's jury trial commenced. Subsequently, the jury found appellant guilty in Count One for aggravated murder with the firearm specification, but without the felony murder specification. The jury found appellant not guilty in Count Two for aggravated murder while committing an aggravated robbery. Finally, appellant was found guilty in Count Three for aggravated robbery with the firearm specification. For the purpose of sentencing, the trial court merged the two firearm specifications. /3\ Carthel Russell was indicted for the same offenses. However, he pleaded guilty to Felonious Assault in exchange for his testimony against appellant. Carthel Russell was sentenced to a term of three to fifteen years imprisonment. -7- The trial court then sentenced appellant to life in prison on Count One, without eligibility for parole until twenty years, plus three years for the firearm specification, to run consecu- tively. Appellant was also sentenced to ten to twenty-five years on Count Three, to run consecutively to Count One. Appellant filed a delayed notice of appeal and subsequently raised the following assignments of error: I. DEFENDANT-APPELLANT PIERCE WAS DENIED A FAIR TRIAL DUE TO THE STATE'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE. II. THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF OTHER ACTS TO BE ADMITTED AT TRIAL. III. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM. R. 29 WHERE THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION. In his first assignment of error, appellant argues that the State's failure to disclose exculpatory evidence denied him a fair trial. Appellant asserts that his counsel did not learn of the exculpatory nature of Sandra Kusinko's statement until after the trial began. Sandra Kusinko testified that when she looked out her window into the alley, she saw a black male walking with a cane. Appellant claims that Sandra Kusinko's testimony showed no indication of him being in the alley or any indication of criminal behavior on his part. A defendant should be provided with evidence which is favorable to the accused and is material to either guilt or punishment. Brady v. Maryland (1963), 373 U.S. 83; State v. -8- Johnston (1988), 39 Ohio St. 3d 48. Evidence is deemed material when there is a reasonable probability that had the evidence been disclosed to the defendant, the outcome of the trial would have been different. United States v. Bagley (1985), 473 U.S. 667, 682. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. Therefore, appellant is entitled to a new trial only if there is a reasonable probability that he would have been acquitted if the evidence had been available to him prior to trial. We find that appellant has failed to demonstrate that there is a reasonable probability that he would have been acquitted if Sandra Kusinko's statement was available to him prior to trial. In the context of the entire record, we are unable to say that the final outcome of the trial would have been different. While Sandra Kusinko's statement does not positively identify appellant at the scene, immediately after the shooting, the statement does contain inculpatory evidence. The evidence established that Carthel Russell was an eyewitness of the incident, and Sandra Kusinko's testimony places him at the scene. We find that Sandra Kusinko's statement was merely cumulative that Carthel Russell was present when appellant shot Timothy Weybrecht. We conclude that there is not a reasonable probability that the result of the trial would have been different if the State presented Sandra Kusinko's statement prior to trial. -9- Appellant's first assignment of error is not well taken and is overruled. Appellant argues in his second assignment of error that the trial court erred in permitting Donna Compton to testify as to prior acts or wrongs. Appellant asserts that Donna Compton, a manager at Gypsy's Bar, should have been prohibited from testifying about a fight involving appellant in Gypsy's Bar and how violent he gets when he is drunk. Evidence of other crimes, wrongs or acts committed by the defendant can be highly prejudicial and is prohibited by Evid. R. 404(B). However, any objection to evidence of other wrongs or acts is waived when it is first brought out by the defendant's attorney during cross-examination. State v. Hartford (1984), 21 Ohio App. 3d 29, paragraph two of the syllabus. During the cross-examination of Arlene George, appellant's attorney elicited the fact that appellant never caused a disturbance with anyone after he drank. Appellant's attorney also elicited facts from Richard Hannus, during his cross- examination, that appellant never caused trouble and that he was polite and courteous. We find that the defense opened the door to specific in- stances of appellant's violent conduct after he drank alcoholic beverages. Accordingly, we conclude that the trial court properly allowed Donna Compton to testify about appellant's prior fights while he was drunk. -10- Appellant's second assignment of error is without merit and is overruled. In his third assignment of error, appellant contends that the trial court erred in denying his Crim. R. 29 motion for judgment of acquittal as to both offenses of aggravated murder and aggravated robbery. Crim. R. 29(A) provides as follows: (A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. This rule tests the evidence to determine whether it is sufficient to sustain a conviction. A motion for judgment of acquittal under Crim. R. 29(A) should be granted where reasonable minds could not fail to find reasonable doubt. State v. Apanovitch (1987), 33 Ohio St. 3d 19, 23. Pursuant to Crim. R. 29(A), a trial court shall not order an entry of judgment of acquittal where the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261. In the instant case, appellant was charged with Aggravated Murder, in violation of R.C. 2903.01, which provides in pertinent part: -11- (A) No person shall purposely, and with prior calculation and design, cause the death of another. (B) No person shall purposely cause the death of another while committing or attemp- ting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape. Upon a careful review of the record, we conclude that the State presented sufficient evidence to sustain all the essential elements of aggravated murder. The overwhelming evidence reveals that appellant intended to "f___ up" Timothy Weybrecht. Carthel Russell explicitly stated that he saw appellant pull out his gun, place it underneath Timothy Weybrecht's ribs, and pull the trigger. We find that there was sufficient evidence to permit a reasonable juror to conclude that appellant was guilty of aggravated murder beyond a reasonable doubt. Appellant was also charged with Aggravated Robbery, in violation of R.C. 2911.01, which provides in relevant part as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. -12- At trial, the evidence revealed that after appellant shot Timothy Weybrecht, he told Carthel Russell that he was going back to the alley in order to see what Timothy Weybrecht had on him. We find that appellant's returning to the alley to see what Timothy Weybrecht had was sufficient to constitute an attempted theft. Further, we find that appellant had a deadly weapon on or about him when he returned to the alley. We conclude that there was sufficient evidence to sustain all the essential elements of aggravated robbery. Therefore, we determine that appellant's argument that his motion for acquittal should have been granted is without merit. Appellant's third assignment of error is not well taken and is overruled. Trial court judgment is affirmed. -13- 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. NAHRA, P.J., AND JOHN V. CORRIGAN, J.*, CONCUR (*Judge John V. Corrigan, Retired, of the Eighth Appellate District, Sitting by Assignment) LEO M. SPELLACY 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. .