COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60280 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MYRON NEWSOME : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-250485 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 2000 Standard Building WINSTON GRAYS, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Myron Newsome, and codefendant, Antonio Banks, were indicted on April 9, 1990 by the Cuyahoga County Grand Jury on one count of aggravated murder, in violation of R.C. 2903.01, with a firearm specification. Appellant was found guilty as charged by the jury on July 6, 1990. The trial court sentenced him to a minimum of twenty years and a maximum of life imprisonment, plus three years actual incarceration for the firearm specification. Appellant appeals as of right and for the reasons that follow, we affirm. II. Antonio Wimbley testified that he was sixteen years old. He is a member of Kappa Phi Nasty (KPN). KPN is a social club made up of members "who hung out together and would protect each other". On March 3, 1990, Paul Turner, a sixteen-year-old member of the KPN, held a party at his residence located at 3448 Meadowbrook in Cleveland Heights, Ohio. Invitations were given out for the party, but members of other gangs were not invited or welcomed. Appellant, Myron Newsome, codefendant, Antonio Banks, and other members and friends of a rivalry gang called Men Over Boys (MOB), attempted to crash the party. Fighting broke out between the two groups. The party was broken up by the Cleveland Heights Police as a result of the fight. Some members of KPN, allegedly upset that the party was broken up, walked to Myron's house and threw bricks at windows, causing property damage. - 3 - On March 4, 1990, KPN members met at Paul Turner's house to discuss the previous night's events. The purpose of the meeting was to discuss whether to take retaliatory measures against members of MOB. At the close of the meeting, they decided to wait for further developments the next day at school. The meeting was attended by about thirty members of the KPN, including Myron. At the close of the meeting, all the members except five left at the same time. They decided to walk down South Taylor to a Dairy Mart Store. They split up into two groups, with half of the gang walking on the Cleveland Heights side of Taylor while the other half walked on the University Heights side. They chose to walk in this manner to avoid police interruption. Five other members of the KPN corroborated Antonio Wimbley's testimony. On March 4, 1990, Myron was a passenger in a vehicle driven by Antonio Banks. The car drove past the group. Myron pointed his finger at one of the boys and was heard saying "You're hit, you're hit." The car made a U-turn and drove slowly past the group a second time. Myron put his hand out the car window holding a gun. Some KPN members did not see him waving a gun. Those that saw him forewarned others that he was holding a gun. Some of the boys picked up bricks and rocks and one of the them threw a rock at the vehicle when Myron rolled down the car window. Three shots were fired into the group. People started yelling that somebody has been "hit". Among the people shot was the decedent - 4 - Wilbert Stallworth-Bey. The car sped off after the third shot was fired. There is agreement among the eyewitnesses who testified that Myron did not appear to be shooting at any one person in the group. They also agreed that no one had hit the vehicle with bricks prior to the last fired shot. When the last shot was fired the car had driven slowly past the group. The witnesses noted that it was necessary for Myron to turn his head back to the group when the last shot was fired. John Fair testified as a hostile witness. On March 4, 1990 he lived with Marilyn Croft, who is the aunt of Myron and Antonio Banks. He was approached by Antonio Banks on March 4, 1990 to purchase .38-caliber bullets for him. Antonio Banks lives with Mr. Fair and Marilyn. He agreed to purchase the bullets because Antonio was under age. They drove to Dunn's at Severance Mall in Cleveland Heights, Ohio. Antonio Banks gave him money and he went into the store and purchased two boxes of bullets. On their way home from the store, they picked up Myron. When they reached home, Mr. Fair put the bullets on the kitchen table and did not know what happened to the bullets. Myron and Antonio Banks left the house and when they returned, Myron told Mr. Fair, "I think I shot someone." Myron called his mother and after speaking to her, left the Fair's home. The police arrived at the Fair home, minutes after Myron and Antonio left. They spoke to Marilyn. Mr. Fair went upstairs. When he attempted to remove the linen from Antonio's bed, he - 5 - observed three guns and bullets. He removed the guns and the bullets and hid them in the closet. The police proceeded to search the premises and uncovered the guns and the bullets. Dr. Robert Challener, the chief deputy coroner, testified that he conducted the autopsy on Wilbert. A bullet recovered in the victim's body broke two ribs as it entered the right chest and perforated the right lung, struck one of the main veins, and entered the aorta. It caused massive internal bleeding. Dr. Challenger believes that the wounds were produced by one bullet. He concluded that the cause of death was a gunshot wound to the chest with internal bleeding. Nancy Bulger, a firearms examiner with the Bureau of Criminal Investigation and Identification, testified that her test firing revealed that the bullet recovered from the victim's body was fired from the gun recovered from Antonio Bank's house. Angela Coleman testified that she lives on South Taylor, across the street from where the shooting took place. On March 4, 1990, she heard two to three gunshots. She observed a group of boys, and saw one of them as he collapsed on her lawn. She called the 911 emergency number. Sergeant Charles Turner of the University Heights Police Department responded to the shooting. He obtained some information from interviewing people at the scene that led him to Myron's home. A few minutes after Officer Coleman arrived at Myron's home, Myron arrived with Antonio Banks. They were read their rights. They were asked about the location of the gun. - 6 - Antonio responded that it was at his residence. The officer noticed a dent on the car and learned that it must have been caused by bricks thrown at it. Detective Damian Pasternak of the University Heights Police Department testified that he took a statement from Antonio Banks after reading him his rights. Antonio, in a written statement, stated that he and Myron were on their way from Dip's (their friend's) house when they noticed the KPN members. One of them threw a brick at them, but it did not hit their car. The boys began to run after the car, and Myron shot three times out of the vehicle's window. He did not intend to hit anyone. Antonio knew that Myron had a gun. He got the gun from Antonio's aunt's house when they were there. He did not see any of the KPN members with a gun except one who had a brick in his hand. Detective Scott Tyler of the University Heights Police Department arrived at Marilyn Croft's home in search of the gun. Marilyn consented to the search of her residence. Officer Tyler recovered two boxes of bullets, three guns and two beepers from Marilyn's bedroom. Officer Tyler read Myron his rights. He signed a written statement. He and Antonio went to Dip's (aka Michael Bonner's) house. They encountered the KPN members on their way home. They drove by the group once, then drove by them a second time. The KPN boys began throwing bricks at them. He saw some of the KPN boys with guns. He shot at them with his head facing the other direction. He stated that the KPN boys had damaged his house the - 7 - previous day. He stuck the gun out of the car window, it clicked twice and fired. He did not intend to shoot anyone. He did not think that he hit anyone because he fired the first shot in the air. The gun used in the shooting was left on Antonio's bed. Michael Newsome, Myron's brother, testified that he attempted to enter the Turner party but was denied entrance. A fight broke out between Myron, Antonio, a few other boys and the KPN boys. When Michael and Myron came back to their home, they noticed that it had been damaged. Myron testified on his own behalf. He testified that his home had been damaged on three different occasions as a result of problems between his brother, Michael, and other boys. Micky Kiper, a KPN member, gave him an invitation to Paul Turner's party. He, Antonio Banks and Michael attempted to enter the party but were denied admission because they belonged to another gang. A fight broke out as someone attempted to hit Michael. They left the party and went to Antonio's house. He later went home with his brother and discovered that there had been some damage on the window. He denied making any plans to retaliate. He did not know the decedent and did not believe that he had anything to do with the damage done to his house. On March 4, 1990, while at Antonio's house, he telephoned Dip that he and Antonio will stop by. On their way back from Dip's house they observed a group of boys walking on both sides of South Taylor. Somebody from the group shouted "There go Myron right there." Antonio, who was driving, pulled into a driveway - 8 - and turned the car around. He wanted to warn his mother about the group. As they drove closer to the group, they began throwing bricks, and one of them ran towards the car with a gun. In fear, he reached in his pocket, retrieved his gun, turned his head away and shot into the air. He did not know that anyone was injured. He admitted telling Mr. Fair that he thought he had shot someone. Upon learning that the police were looking for him, he turned himself in. He denied intentionally causing the death of Wilbert. He had the gun on March 4, 1990 for protection due to the problems at his home. He denied saying "You are hit". He explained that he had fired a shot on New Year's Eve from his gun which resulted in the two discharged rounds from his weapon. At the close of Myron's testimony, his counsel moved for a separate trial due to inconsistent statements in his testimony and the written statement of Antonio. His motion was overruled. Antonio Banks testified that after the fight on March 3, 1990, at Paul Turner's house, they went to Myron's home and noticed police cars and damage to the home. They discussed what the KPN members did but made no plans to retaliate. On March 4, 1990, he asked Mr. Fair to buy some bullets for him because he wanted to do some shooting. On their way home from purchasing the bullets, they gave a girl named Tia a ride. They picked up Myron as well. He dropped Myron and Mr. Fair at the house and drove Tia home. He did not discuss buying bullets - 9 - with Myron. Mr. Fair kept the bullets and he (Antonio) never saw the boxes or removed them from the premises. He and Myron decided to visit Dip (Michael Bonner). On their way home from the visit, Myron told him to make a right turn on South Taylor. As they turned they observed a group of KPN members. He wanted to go and warn Dip that KPN members were nearby, but Myron wanted to go home. He turned his vehicle around and warned Myron who was reaching for his gun for the second time not to show the group that he had a gun. He heard shots but did not actually see Myron fire any shots. He told Myron not to shoot. He heard three shots. He did not know that Myron was going to shoot the gun. He neither supplied the bullets nor touched his gun. After the shooting, they came to Antonio's house and went upstairs to Antonio's bedroom. Myron showed him two empty shells and said to him, "But I only shot once. I'm going to call my mother and tell her what happened." Before they turned themselves in, Antonio asked Myron to give him the bullets from the glove compartment. Antonio walked upstairs, loaded his gun and placed it on his bed. He denied on cross-examination that he saw Myron retrieve his gun. He did not see any member of the KPN with a gun but stated that Myron told him that he (Myron) saw one of them with a gun. At the close of Antonio's testimony, his counsel renewed his motions for mistrial and acquittal, both of which were denied. III. - 10 - Appellant's assignments of error are as follows: "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT'S MOTION FOR SEVERANCE AND HIS SUBSEQUENT MOTION FOR MISTRIAL. "II. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT MUST ACQUIT THE APPELLANT OF AGGRAVATED MURDER BEFORE CONSIDERING LESSER INCLUDED OFFENSES, THEREBY DENYING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. "III. THE TRIAL COURT'S COMMENTARY DURING ITS CHARGE TO THE JURY DEPRIVED THE APPELLANT OF HIS RIGHT TO A FAIR TRIAL. "IV. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER PURSUANT TO R.C. 2903.03. "V. THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE HEARD BY THE JURY. "VI. WHERE A POLICE REPORT CONTAINS A DEFENDANT'S ADMISSION PURSUANT TO EVIDENCE RULE 801(D)(2)(a) THE EXISTENCE OF THE ADMISSION DOES NOT ENABLE THE ENTIRE REPORT TO BE ADMISSIBLE AS EVIDENCE. THE REMAINING CONTENT IS HEARSAY, THE ADMISSION OF WHICH IS VIOLATIVE OF THE UNITED STATES AND OHIO CONSTITUTIONS." Appellant, in his first assignment of error, argues that the trial court erred to his prejudice by granting a joint trial of him and the codefendant. Appellant argues that the statement made by the codefendant to the police was an admission against him which resulted in the jury's failure to find him guilty of involuntary manslaughter. Crim. R. 14 provides in pertinent part: "When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried - 11 - separately, unless the court orders the defendants to be tried jointly, upon application by the prosecuting attorney or one or more of the defendants, and for good cause shown." Thus, it is mandatory in a capital offense case that the defendants be tried separately, unless either the defendant or the state, through application to the court, show good cause for a joint trial. State v. Henry (1983), 4 Ohio St. 3d 45. Therefore, in the within case, we must decide whether appellant was charged with a capital offense. Appellant's indictment reads as follows: "The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, Do find and present, that the above named Defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully and purposely with prior calculation and design, caused the death of another, to-wit: Wilbert Stallworth-Bey II." R.C. 2901.02(B) provides: "(B) Aggravated murder when the indictment or the count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of Revised Code, and any other offense for which death may be imposed as a penalty, is a capital offense." Since appellant's indictment did not specify any of the elements of R.C. 2929.04, the charges of aggravated murder against him did not rise to a capital offense. Therefore, Crim. R. 14 is inapplicable. Having decided that Crim. R. 14 is inapplicable, we must decide whether the court abused its discretion in denying appellant's motion for a separate trial. In a motion for a - 12 - separate trial, the burden is on the movant to show that a joint trial (1) will prejudice his case; (2) that the trial court abused its discretion by failing to grant his motion; and (3) that the denial resulted in an unfair trial. State v. Perod (1968), 15 Ohio App. 2d 115; Cincinnati v. Reichman (1971), 27 Ohio App. 2d 125; State v. Cartellone (1981), 3 Ohio App. 3d 145. Appellant argues that because his codefendant's argument was antagonistic, his trial was not fairly conducted. Appellant specifically argues that the jury could have found him guilty of the lesser offense of involuntary manslaughter had his codefendant's statement and oral testimony not contradicted his testimony. Appellant's codefendant testified that they drove to South Taylor knowing that they will see KPN members. The codefendant also testified that appellant fired three shots while appellant testified that he fired only one shot. However, appellant admitted that he pulled the trigger three times but the gun fired only once. The KPN members testified that there were three shots fired. An independent witness, Ms. Angela Coleman testified that she observed the victim as he collapsed on her front lawn. She heard two to three shots fired. Appellant never denied shooting but only contends that he did not intend to shoot at any particular individual. Appellant's contention of not intending to shoot any one particular person is corroborated by both the codefendant and the KPN members. - 13 - The trial court, before denying appellant's motion, reviewed the oral and written statements made by both defendants and concluded that any inconsistency in the statements were too inconsequential to warrant separate trials. We agree. This is not a case where a codefendant makes an incriminating statement against a defendant who did not take a stand. Both parties testified on their own behalf and were cross-examined. Appellant's oral and written statements plus his testimony during trial were as prejudicial to his case as the codefendant's statements. He admitted asking the codefendant to turn onto South Taylor when they could easily have gone home without the necessity to make the turn. He admitted firing a shot. Mr. Fair testified that appellant told him that "I think we shot somebody". "We" here refers to appellant since the evidence is uncontroverted that only appellant did the shooting. We hold that where a defendant's own damaging confession in a non-capital case is properly admitted at trial, equally damaging testimony by a codefendant is insufficient to grant separate trials and the trial court's denial of separate trials is neither prejudicial nor an abuse of discretion. See Burton v. United States (1968), 391 U.S. 123; see also Parker v. Randolph (1979), 442 U.S. 62. In the within case, we find neither prejudice nor abuse of discretion in the trial court's denial of appellant's motion for a separate trial. We also fail to see any consequential damage to appellant's case as a result of the codefendant's oral and - 14 - written statements. When trial is had fairly and no violation of an accused's rights are found, speculation as to what the jury could have found in place of what it found is beyond the scope of appellate review. Appellant's first assignment of error is overruled. IV. Appellant, in his second assignment of error, argues that the trial court's instruction to the jury was coercive and prejudicial. Appellant argues that the trial court's instruction precluded the jury from properly considering a lesser included offense of involuntary manslaughter. We disagree. Appellant's argument that the trial court's instruction is an "acquittal- first" instruction is not manifest in the record. The trial court instructed the jury as follows: "Now, if you don't find a particular defendant guilty of aggravated murder or murder, then you should go on and consider whether or not that defendant is guilty of involuntary manslaughter." This instruction is neither unduly coercive nor prejudicial. It does not require that the jury unanimously acquit appellant on the aggravated murder charge before it can consider a lesser included offense of murder or involuntary manslaughter. The Ohio Supreme Court, in adopting this court's holding in State v. Muscatello (1978), 57 Ohio App. 2d 231, affirmed on other grounds (1978), 55 Ohio St. 2d 201, held in State v. Thomas (1988), 40 Ohio St. 3d 213, that: "A jury must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense. If a - 15 - jury is unable to agree unanimously that a defendant is guilty of a particular offense, it may proceed to consider a lesser included offense upon which evidence has been presented. The jury is not required to determine unanimously that the defendant is not guilty of the crime charged before it may consider a lesser included offense." Where a defendant is charged with an offense, the first consideration of the jury, as must be reflected in a trial court's instruction, is the offense charged. The jury cannot be instructed to determine a mitigating circumstance first before considering the main charge. In the case sub judice, the jury's understanding of the trial court's instruction is evidenced by its verdict. The jury found appellant guilty of lesser offense of murder and not aggravated murder as charged. Appellant's contention that the jury was precluded by the instruction from considering involuntary manslaughter is pure conjecture and not supported by the jury verdict. Assuming arguendo that we subscribe to appellant's argument that he intended to commit felonious assault by attempting to "injure one of the opposing gang members with his act of firing the weapon in their direction", we are still not persuaded that the jury could not find purposeful intent to kill since the law of intent remains that "a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts." State v. Johnson (1978), 56 Ohio St. 2d 35. As the Ohio Supreme Court held in State v. Jester (1987), 32 Ohio St. 3d 147: "where an inherently dangerous instrumentality was employed, a homicide occurring during the commission of - 16 - a felony is a natural and probable consequence presumed to have been intended. Such evidence is sufficient to allow a jury to find a purposeful intent to kill. ***" See also State v. Thomas, supra; State v. Esparza (1988), 39 Ohio St. 3d 8. Appellant's intent to commit a felonious assault of injuring KPN members by shooting at them (a felony) with an inherently dangerous instrument is all that the jury needed to find a purposeful intent to kill. Since the evidence of murder is supported by the record and proved beyond a reasonable doubt, further aided by appellant's own testimony, we cannot hold readily as did appellant that the verdict of involuntary manslaughter could have been found by the jury, but for the trial court's instruction. Appellant's second assignment of error is overruled. V. Appellant, in his third assignment of error, argues that the trial court erred to his prejudice by expanding the definition of self-defense to fit the present case. The trial court's instruction to the jury defines self-defense as follows: "To prove self-defense, Mr. Newsom must prove by a preponderance of the evidence the following things: First, that he was not at fault in creating the situation that gave rise to the shooting; second, that he did not violate any duty to retreat or avoid danger; and third, that he had a good faith belief that he was in imminent danger of death or great bodily harm and that his only means of escape was in shooting as he did. "You will note from this definition of self- defense that it is possible that no person who is engaged in a fight may be able to justify himself under the law of self-defense, even though everyone was in fact defending himself." - 17 - Appellant argues that the trial court definition is proper, however, he questions the addendum to the instruction, supra, which starts with "You will note from this definition * * *". He argues that the jury may improperly conclude that self-defense is not available" where an ongoing dispute is involved." A first glance at the addendum may appear to be confusing but not prejudicial. However, a further reading of the remaining explanation of the instruction clears any confusion that one might have. The record shows that the trial court explained further to the jury that the mere fact that a party involved in a fight is defending himself does not automatically accord him the right of self-defense. A party may start a fight in self-defense and end up as an aggressor and the jury is entitled to know all that is involved in the law of self-defense. Accordingly, we fail to see the trial court's definition as tilting towards the state. See State v. Fields (1984), 13 Ohio App. 3d 433. Appellant's third assignment of error is overruled. VI. Appellant, in his fourth assignment of error, argues that the trial court committed plain error by not instructing on voluntary manslaughter. R.C. 2903.03 provides in part: "(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another. - 18 - "(B) Whoever violates this section is guilty of voluntary manslaughter, an aggravated felony of the first degree." A prerequisite to a trial court's instruction on voluntary manslaughter is introduction of evidence by the defendant of a sudden fit of rage brought about by extreme emotional stress. State v. Osburn (1983), 9 Ohio App. 3d 343; State v. Durkin (1981), 66 Ohio St. 2d 158; State v. Pierce (1980), 64 Ohio St. 2d 281. Webster's Dictionary defines "sudden" as: "happening or coming quickly or unexpectedly". The record does not support any sudden rage brought about by extreme emotional stress. There is testimony that appellant's home was vandalized at one point by members of the KPN gang whom nobody actually saw breaking the windows. Appellant testified that he personally did not have any problem with the KPN member but that his brother did. On March 3, 1990, appellant ignored warnings that MOB members were not invited or welcomed to a KPN party, and crashed the party anyway. As expected, there was a fight. A party who ignores warnings and goes to where he is not invited or welcomed could be inferred to have naturally provoked any consequential problem his presence may invite. The shooting of the victim occurred the next day, almost 24 hours after the fight at the party. "Sudden" should be given its plain meaning. A 24-hour waiting period or longer before acting on a provocation cannot be considered in the plain meaning of "sudden" to be "sudden". In the within case, not only did appellant arguably provoke the fight of March 3, - 19 - 1990, we fail to see any evidence of sudden rage brought about by extreme emotional stress in the next day's shooting. Appellant's fourth assignment of error is overruled. VII. Appellant, in his fifth assignment of error argues that the trial court erred by allowing prejudicial other acts evidence to be heard by the jury. Specifically, appellant argues that the trial court should not have allowed testimony of the pagers confiscated by the police and seven hundred ($700) dollars in cash found with the codefendant. The issue of the cash money found on the codefendant is not a proper issue before this court since this appeal is not the codefendant's, and appellant failed to show how the money found on the codefendant prejudiced his case. The record shows that the detective testified that in addition to guns, they also confiscated pagers found in the house. We note that appellant's counsel did not object to the pager testimony but to its admission as an exhibit. We do not find appellant's failure to object to the officer's oral testimony as plain error. See State v. Long (1978), 53 Ohio St. 2d 91; State v. Underwood (1983), 30 Ohio St. 3d 12. Appellant's objection to its admission as an exhibit is considered harmless since its admission as an exhibit is no more damaging to him than the officer's testimony, heard by the jury, of its existence. While we agree that the admission of the pagers as an exhibit is irrelevant to the trial for murder, we hold that because of the - 20 - reasons we stated supra and the overwhelming evidence of appellant's guilt such admission is harmless error. VIII. Appellant, in his sixth assignment of error, argues that the trial court erred by permitting the state's witness to read the summation of the statement he made to the police. The record shows that the statement read by the detective was a written statement made by appellant and identified by him as his handwriting. It is, therefore, not a hearsay statement. See Evid. R. 801(D)(2)(a). See also State v. Byrd (1987), 32 Ohio St. 3d 79. Appellant further argues that additional statements were added to the non-hearsay statement. Appellant argues that the statement about the March 3, 1990 party and his non- membership to the MOB were hearsay. The above statements not only were substantially testified to by appellant on direct and cross-examination, but also are de minimis to be considered harmful to appellant's case. Appellant's sixth assignment of error is overruled. - 21 - Judgment affirmed. 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 BLACKMON, J., CONCUR. SARA J. HARPER 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. .