COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59926 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MORRIS T. WALKER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 23, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-238754 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES RUTH J. HUDSON, ESQ. Cuyahoga County Prosecutor Hudson and Hudson 1200 Ontario Street 1700 Terminal Tower Cleveland, Ohio 44113 Cleveland, Ohio -2- PATRICIA A. BLACKMON, J.: Morris T. Walker, defendant-appellant, -- hereinafter Appellant -- timely appeals his conviction for Felonious Assault in violation of R.C. 2903.11, with a firearm specification. For the reasons set forth below, we affirm. The record discloses that the State of Ohio, plaintiff- appellee, -- hereinafter Appellee -- presented the testimony of Raymond Scott, who stated that on March 10, 1989 Appellant entered his apartment, made an accusation, pulled a gun, and shot him three times. Scott stated that he and his common law spouse, Dorothy Hopkins, were at his home when Appellant knocked on the door. Scott got up from his seat and answered the door; Appellant entered and stood at the door waiting for Dorothy Hopkins to enter the room. Scott returned to his seat. Scott stated he heard a commotion in the hall area and at that point Appellant stated to Scott that he "had done him wrong". Appellant then pulled out his gun and shot Scott three times, once in the stomach and twice in the thighs. Scott lunged toward Appellant; they scuffled; Appellant was shot; Scott was unable to recall whether he shot Appellant. During Scott's testimony, Appellee offered photographs of the apartment; the photographs were admitted into evidence over Appellant's objection. On cross-examination, Scott admitted he was once convicted of forgery and aggravated robbery. -3- Thereafter, Appellee presented the testimony of Dorothy Hopkins, who was identified as a friend of both Scott and Appellant. Hopkins related that she was present when the shootings occurred. She recalled that Appellant accused Scott of owing him $250.00. Appellant then pulled his weapon and shot Scott; they struggled; Appellant was shot in the leg. Appellee's final witnesses were Patrolman Thomas Larkin and Detective Lawrence Gleba of the Cleveland Police Department, who testified that they investigated the shooting and took oral statements from the witnesses who were at the scene. Appellant objected to the hearsay nature of the officers' testimony; however, they were allowed to testify. Appellee rested its case, and Appellant presented the testimony of James Stubbs, who stated that he was unaware of a personal relationship between Appellant and Dorothy Hopkins; however, on at least one occasion he had observed her at Appellant's home, and she was in her night gown. Appellant testified that on the day of the shooting he had been drinking heavily. He had gone to Scott's apartment in order to end his relationship with Dorothy Hopkins. He acknowledged that the relationship was not intimate, explaining that his intention was to end the relationship before it progressed any further. Appellant stated he arrived at the apartment and Dorothy Hopkins was alone. Shortly thereafter, Scott arrived. Upon entering the apartment Scott gestured to his pocket as if he was -4- going for a gun. Appellant lunged for Scott, they scuffled and his finger was shot off, rendering him unconscious. When he became conscious, he observed that someone was dragging him down the stairway when Scott yelled that he would kill Appellant and shot him again, this time in the groin area. He became unconscious, and later he awoke in the hospital with his leg handcuffed to the bed. Appellant maintained he did not shoot Scott, nor did he see who shot Scott. During Appellant's testimony, his attorney on direct examination asked Appellant about his prior criminal record. At his attorney's request, Appellant testified that his criminal record consisted of misdemeanor prior convictions for Operating a Motor Vehicle Under the Influence in 1967 and 1970, Petty Theft in 1972 and 1974 and Carrying a Concealed Weapon in 1980. (Emphasis added.) This testimony gave the prosecutor the opportunity to cross-examine Appellant about his record, and to question whether he was honest about his entire criminal record. Consequently, his entire criminal record was introduced to the jury. Finally, Appellant presented the testimony of both Louise Mason and Richard Allen Stokes who stated that before and after the shooting they observed Appellant, and on both occasions he was drunk. During this time they also noticed that he had blood on his head. -5- Finally, Detective Gleba testified on rebuttal that Appellant was not handcuffed to his bed. After the trial court's charge to the jury, Appellant moved for an instruction on the offense of Aggravated Assault. The motion was denied. The jury returned a verdict of guilty and Appellant was sentenced. Appellant's first assignment of error states: THE TRIAL COURT ERRED AND DENIED APPELLANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN IT PERMITTED THE STATE TO INTRODUCE INTO EVIDENCE PHOTOGRAPHS THAT HAD NOT BEEN DISCLOSED TO DEFENSE COUNSEL PREVIOUSLY BY THE STATE AS REQUIRED BY OHIO CRIMINAL RULE 16. We find Appellant's first assignment of error lacks merit and is overruled. The Supreme Court of Ohio has held that the trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery. Lakewood v. Popadelis (1987), 32 Ohio St. 3d 1, paragraph 2 of the Syllabus. Thus, the least severe sanction may be a continuance and, if that continuance is offered but declined, the trial court may presume that the violation of discovery has been remedied. State v. Alexander (Jan. 19, 1989), Cuyahoga App. No. 54951, unreported. In the instant case, Appellant's rejection of the trial court's granting of a week's continuance to review the photographs waived any discovery violation. -6- Appellant's second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED APPELLANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN IT PERMITTED THE STATE TO INTRODUCE INTO EVIDENCE PHOTOGRAPHS THAT HAD LITTLE PROBATIVE VALUE BUT GREAT POTENTIAL FOR PREJUDICE AGAINST THE APPELLANT, CONTRARY TO THE REQUIREMENTS OF EVIDENCE RULE 403. We find Appellant's second assignment of error lacks merit and is overruled. An error specifically not objected to pursuant to Evid. R. 103(A) at trial is waived. State v. Brown (1988), 38 Ohio St. 3d 305, 312 (where an objection was made on other grounds.) Appellant failed to object, pursuant to Evidence R. 403, to the presentation of the photographs during Scott's testimony and failed to object to the presentation of the photographs during the testimony of Ms. Hopkins. Therefore, any error in their admission was waived. Appellant's third assignment of error states: THE TRIAL COURT ERRED AND DENIED APPELLANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN IT PERMITTED HEARSAY TESTIMONY BY A POLICE OFFICER TESTIFYING AGAINST APPELLANT. We find Appellant's third assignment of error lacks merit and is overruled. Statements that clearly go to an element of the offense and have little, if any, relevance to the circumstances of the officers meeting the defendant or witnesses on the scene should be excluded. State v. Blevins (1987), 36 Ohio App. 3d 147. Under Evid. R. 403(A), a statement probative value is not outweighed by its prejudicial nature. Id. at 150. -7- However, in the instant case, any error resulting from the officer's testimony as to the witnesses' oral statements, taken at the scene, is harmless beyond a reasonable doubt, because the remaining evidence standing alone constitutes overwhelming proof of Appellant's guilt. See, State v. Williams (1983), 6 Ohio St. 3d 281. Appellant's fourth assignment of error states: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY DEFENSE COUNSEL'S INTRODUCTION INTO EVIDENCE OF APPELLANT'S PRIOR CRIMINAL RECORD WHICH WOULD OTHERWISE HAVE BEEN INADMISSIBLE. We find the Appellant's fourth assignment of error lacks merit and is overruled. In the instant case, there could not have been any presumption of sound trial strategy for introducing evidence of prior criminal convictions that could not have been introduced by the State. Thus, Appellant correctly noted that the introduction of his prior criminal convictions was erroneous since all of the convictions consisted of misdemeanors, which were punishable by less than one year of imprisonment and at least one of which was more than ten years old. Therefore, under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, the introduction of Appellant's prior criminal record was erroneous; however, the inquiry does not end at that juncture. We turn now to the second part of the Strickland v. Washington test, which is whether there is a -8- reasonable probability that, absent the error, the jury would have reasonable doubt respecting guilt. The test for prejudice requires a reviewing court to look to the totality of the circumstances and determine whether the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. See Strickland v. Washington, pages 695-696. In the Strickland case the Supreme Court urged that a verdict only weakly supported by the record was more likely to be affected by errors than one with overwhelming record support. In the instant case, Appellee offered evidence to the jury that on March 10, 1989, Appellant entered Scott's apartment, made an accusation, pulled a gun, and shot him three times. Dorothy Hopkins, a witness to the shooting, corroborated Scott's version. Because of this overwhelming evidence we find that Appellant failed to establish that the guilty verdict reached would reasonably likely have been different absent the error. Appellant's fifth assignment of error states: APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT DENIED HIS REQUEST TO INSTRUCT THE JURY ON A CHARGE OF AGGRAVATED ASSAULT. Appellant's fifth assignment of error lacks merit and is overruled. In State v. Deem (1988), 40 Ohio St. 3d 205, the Ohio Supreme Court held that: Aggravated assault R.C. 2903.12 contains elements which are identical to the elements defining felonious assault, R.C. 2903.11, except for the additional -9- mitigating element of serious provocation. Thus, in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury. Id. at paragraph four of the syllabus. Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time. Id. at paragraph five of the syllabus. In the instant case, Appellant denied shooting Scott; therefore, we perceive no prejudice to Appellant in denying to him an instruction that requires him to establish that he was provocated into the act. Appellant's sixth assignment of error states: THE CONVICTION OF APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant's sixth assignment of error lacks merit and is overruled. A criminal conviction should not be reversed, where there is sufficient evidence "which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." E.g. State v. Eley (1978), 56 Ohio St. 2d 169, 172. In the instant case, the testimony that he pulled out his gun and shot Mr. Scott three times is sufficient evidence of Felonious Assault. Judgment affirmed. -10- 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 DYKE, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .