COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60071 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROGER TUTOLO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 248777 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. RONALD C. BALBIER, ESQ. CUYAHOGA COUNTY PROSECUTOR C. DOUGLAS LOVETT, ESQ. BY: JOHN GHAZOUL, ESQ. 400 Terminal Tower ASSISTANT COUNTY PROSECUTOR 50 Public Square The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Roger Tutolo, was convicted of felonious assault, R.C. 2903.11(A)(2), for knowingly causing or attempting to cause physical harm to James Kincaid by means of a deadly weapon or dangerous ordnance (a club), and was sentenced to three to eleven years. On appeal appellant assigns six errors for review. I THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION INTO EVIDENCE OF TESTIMONY TO THE EFFECT THAT DEFENDANT HAD PREVIOUSLY COMMITTED AN ASSAULT UPON KINCAID. THE TESTIMONY VIOLATED THE PROSCRIPTIONS OF EVID. R. 404(B) IN THAT (1) THE PROSECUTION FAILED TO IDENTIFY FOR WHICH OF THE LIMITED PURPOSES OF RULE 404(B) THE "OTHER CRIMES" TESTIMONY WAS PRESENTED; (2) THE PURPORTED ASSAULT TO WHICH KINCAID TESTIFIED WAS NOT OTHERWISE ADMISSIBLE TO ESTABLISH "IDENTITY" OR ANY OF THE OTHER LIMITED PURPOSES OF RULE 404(B) AND (3) THE TRIAL COURT FAILED TO GIVE A LIMITING INSTRUCTION WHICH WOULD HAVE RESTRICTED THE JURY'S CONSIDERATION OF THE TESTIMONY. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS FAILURE TO INSTRUCT THE JURY TO LIMIT THE APPLICATION OF THE "OTHER CRIMES" EVIDENCE TO ANY OF THE PROPER USES SET FORTH IN EVID. R. 404(B), REGARDLESS OF WHETHER SUCH AN INSTRUCTION HAD BEEN REQUESTED BY THE DEFENSE. Kincaid testified, without objection, that on a date before appellant assaulted him with a little club appellant had come to Kincaid's house and also struck him in the head with a little club because, appellant claimed, some money had been taken from appellant's bar. (Tr. 57.) Evid. R. 404(B) states as follows: - 2 - 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. The state contends that the evidence was admissible for proof of motive or identity. Evidence of the victim's involvement in the theft would have attempted to demonstrate a motive for appellant's assault of the victim. The prior assault was highly inflammatory evidence. The similarity of the use of the small clubs did strengthen the victim's subsequent identification of appellant, however. Nonetheless, the victim gave a positive identification of appellant as the attacker at the bar and our review of the transcript indicates that the prior incident was used by the state to argue a propensity for violence as much as it was directed at motive or identity. This evidence was unnecessary and improperly admitted. However, its admission and the failure to instruct on its use even if it had been properly admitted were not reversible error given the overwhelming evidence provided by the testimony of the victim and, more importantly, the admissions of appellant testified to by DiFranco. (See discussion of assignment of error No. V.) Even if the admission had been proper we would not agree that the prosecutor had to specify the ground in 404(B) under - 3 - which he proceeded or that the court had committed reversible error in not providing a limiting instruction. The defendant first complains that the trial court should have (1) required the prosecution to specify those elements under the rule which the evidence was being introduced to prove, and (2) limited its instruction to include only those specific elements. We agree that in light of the potential for unfair prejudice, such procedure should, upon timely request, be followed prior to the admission of evidence of other crimes. Cf. Hudleston v. United States (1988), 485 U.S. 681, 691. (construing Fed. R. Evid. 404[b]). In this case Jurek requested a limiting instruction pursuant to Evid. R. 105. However, he failed to object to the actual content of the trial court's general instruction either during trial or before the jury retired. The defendant cannot now complain when the trial court granted him all the relief that he requested. Cf. Crim. R. 30; State v. Norman (1982), 7 Ohio App. 3d 17, 20-21, 7 OBR 19, 22-23, 453 N.E. 2d 1257, 1261 (failure to request limiting instruction waives error). (Emphasis added.) State v. Jurek (1989), 52 Ohio App. 3d 30, 34. Assignments of error Nos. I and II are overruled. III THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF HEARSAY TESTIMONY TO THE EFFECT THAT TUTOLO HAD COMMITTED THE CHARGED OFFENSE. - 4 - Appellant cites four instances of hearsay. First, Officer Meinhardt was asked whether, through investigation, he had learned certain names and he responded that he had. When asked the names he stated appellant's name. (Tr. 31.) Counsel's objection was overruled. Despite the tortured form of the question the answer is still hearsay: Meinhardt was told the name of the victim's attacker; the answer introduced hearsay: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid. R. 801(C). In a second instance Detective Pitten testified that the victim identified the perpetrators and that, to Pitten's knowledge, they included appellant. (Tr. 170.) Third, Dawn DiFranco testified without objection that one of appellant's co-defendants (tried separately) admitted participating in the attack and said he did it for appellant and that DiFranco would be next. (Tr. 164.) This was unequivocally hearsay. Pitten's testimony (that the victim said that appellant had previously assaulted him) was also hearsay. (Tr. 192-193.) However, none of these errors was prejudicial given the admissions of appellant to which DiFranco properly testified. (See discussion of assignment of error No. V.) Assignment of error No. III is overruled. IV THE TRIAL COURT ERRED IN SUSTAINING THE PROSECUTION'S OBJECTION TO QUESTIONS AND TESTIMONY REFLECTING THE OPINION OF THE - 5 - WITNESS AS TO THE CREDIBILITY OF THE MOLDWINS. During the cross-examination of appellant's witness, Michael LaRiche, defense counsel ascertained that LaRiche had known appellant's co-defendants, the Moldwin brothers, for about a year but when counsel asked "During this time, sir, did you know them to be believable and reliable people?" an objection was sustained. (Tr. 202.) Evid. R. 806 states as follows: When a hearsay statement, or a statement defined in Rule 801(D)(2), (c), (d), or (e), has been admitted in evidence, the credibility of the declarant may be attacked ...." Evid. R. 608(A) states, "The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." (Emphasis added.) Appellee argues that Evid. R. 608(A)(2) precludes opinion evidence unless the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Evid. R. 608(A)(2) precludes evidence of truthful character until after the character of the witness has been properly attacked. Appellant was not attempting to elicit evidence of truthful character. - 6 - Evid. R. 806 permits an attack on the credibility of a declarant whose statement was admitted. Appellant had a right under Evid. R. 608(A)(1) to attack the declarant's credibility by evidence in the form of opinion so long as it referred to the Moldwins' character for truthfulness or untruthfulness. The question to which the state objected asked whether LaRiche believed them to be "believable and reliable." "Reliable" could mean something other than "truthful" but "believable" was the equivalent of "truthful." The objection should have been overruled as to "believable." However, the error was not prejudicial given the admissions of appellant. (See discussion of assignment of error No. V.) Assignment of error No. IV is overruled. V THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. James Kincaid testified as follows: Mike LaRiche gave him a ride to a bar where he met the Moldwins. (Tr. 47-48.) When Kincaid stepped outside the back door of the bar Kincaid was hit from behind, and turning around, saw the Moldwins and appellant with miniature bats he described as small clubs. (Tr. 51.) Although it was dark out, there was enough artificial light that he could see their faces two feet away. (Tr. 52.) Appellant said, "O.K., that's enough. Let's go." (Tr. 53.) At the hospital Kincaid called appellant to ask him why he had done it and appellant said that if Kincaid called again he would give him - 7 - nine hundred stitches. (Tr. 55.) Kincaid explained that he had told appellant that he had received stitches as a result of the attack. Dawn DiFranco testified that when she told appellant that one of the Moldwins was starting to talk about him appellant replied, "About what? What I had him do for me?" After she asked him why he had the Moldwins do that appellant said that it was because Kincaid robbed his bar. (Tr. 132.) He added that Kincaid "should have been killed; it should have been all taken care of." (Tr. 134). Appellant argues that the verdict is against the manifest weight of the evidence because appellant established an alibi and the victim's testimony was inconsistent and unbelievable. Appellant's brother and a customer at appellant's bar both testified that appellant was in his bar at the time of the incident. However, the customer admitted that he could have lost sight of him for five or ten minutes and the location of the assault was only a few minutes away. He also insisted that appellant's brother tends bar in appellant's absence but appellant's brother testified that he did not. The victim testified that the Moldwins rode with him in LaRiche's car but later said he met the Moldwins at the bar. Although Kincaid insisted at trial that there was enough light to see he had previously said that the area was dark. He lied about the extent of his felony record. - 8 - Robert F. Teller testified that DiFranco told him she was going to try to set up appellant and get money from Kincaid. (Tr. 213.) However, the credibility of the witnesses is primarily for the trier of fact, State v. DeHass (1967), 10 Ohio St. 2d 230, and we will not reverse a verdict when there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt, State v. Eley (1978), 56 Ohio St. 2d 169, 172. Although the victim was not an ideal witness DiFranco testified to appellant's admissions and the jury chose not to believe Teller. Assignment of error No. V is overruled. VI THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S POST-TRIAL MOTION TO ACQUIT AND MOTION FOR NEW TRIAL. Appellant made a Crim. R. 29(C) post-verdict motion for acquittal and a Crim. R. 33 motion for a new trial. At a hearing appellant presented four witnesses. Pitten testified that the victim (Kincaid) admitted that he lied to the police when he told them that he had a Trans Am taken from him during the attack by appellant and the Moldwins. (Tr. 308.) Pitten also stated that Kincaid lied about his felony convictions. (Tr. 309.) Appellant's probation officer testified that a woman who said she was Denise DiFranco telephoned and said that she was not positive appellant committed the crime. (Tr. - 9 - 320.) Franklin Pellegrini testified that Kincaid told him that he didn't know who beat him and he didn't see but he had stolen nine hundred dollars from appellant so he assumed it was appellant. (Tr. 326.) Pellegrini said that appellant also told him that his father had threatened to throw him out of the house if he didn't prosecute. (Tr. 327.) Kincaid's father testified that his son had not owned a Trans Am and he denied threatening to throw his son out but told him that he would have to prosecute rather than seek private revenge. (Tr. 334.) "A motion for new trial pursuant to Crim. R. 33(B) is addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion." State v. Schiebel (1990), 55 Ohio St. 3d 71 (paragraph one of the syllabus). We do not find any abuse of discretion. The Crim. R. 33(B) motion was properly denied. Crim. R. 29(C) states in part, "If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal." A judgment of acquittal must be denied if 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. Given the victim's testimony and the admissions the motion had to be denied. Assignment of error No. VI is denied. 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. *WEAVER, J., CONCURS. HARPER, J., CONCURS IN JUDGMENT ONLY PRESIDING JUDGE ANN DYKE *Sitting By Assignment: Judge Margaret K. Weaver, Sandusky County Common Pleas Court. 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .