COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60393 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WARREN HORTON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-247797 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: BLAISE D. THOMAS Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square Bldg., #1016 Cleveland, Ohio 44113 -2- SPELLACY, J.: On January 30, 1990, defendant-appellant Warren Horton ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Murder, in violation of R.C. 2903.02, with a firearm 1 specification. On July 18, 1990, appellant's jury trial commenced. The first witness to testify for the State was Dr. Robert Challenger from the Cuyahoga County Coroner's Office. Dr. Challenger testified that the victim, Ralph Taylor, suffered ten gunshot wounds. The cause of death was six multiple gunshot wounds to the victim's torso, with multiple visceral and vascular injuries. Dr. Challenger further testified that the presence of alcohol and cocaine was found in the victim's body. The next witness to testify for the State was Sharon Rosenberg from the Trace Evidence Department of the Cuyahoga County Coroner's Office. Sharon Rosenberg testified that on the victim's hands, she performed a trace metal detection test and also a gunshot residue test. With respect to the trace metal detection test, Sharon Rosenberg was unable to make a correlation with a gun. She was able to detect that the victim did come in contact with some type of metal. However, the patterns on the victim's hands were not conclusive enough to establish that he had a handgun, shotgun, rifle or anything like that. Sharon Rosenberg did state that she 1 Appellant was indicted with Norman Robertson III, James M. Jackson and Eric L. Harris for the same offense. -3- could not rule out the possibility that the victim handled some type of gun. Sharon Rosenberg testified that the gunshot residue test performed on the hands of the victim was negative. Eric Harris next testified that he was a member of a gang called "Hip-Hop Crew". Eric Harris testified that on December 5, 1989, he was present at 6402 Haltnorth Walk in the King Kennedy Projects in the City of Cleveland, Ohio. On that particular night, there were several people in the hallway, including appellant. Eric Harris stated that at one point, he and Jeff Ferguson engaged in a fist fight in the hallway. During the altercation, the victim, Ralph Taylor, walked up the stairs with a sawed-off shotgun in his hands, pointed the shotgun at Eric Harris's face, and said, "This is a stick-up." Eric Harris claimed that he simply knocked the gun away. Eric Harris further testified that Malcolm Collins came up behind the victim and shot him twice in the back. The victim fell down against the wall and his shotgun dropped to his side. All of a sudden, appellant pushed Eric Harris out of the way and he shot the victim. After appellant fired his shots, Norman Robertson shot the victim about three times. According to Erie Harris, the victim never fired his shotgun. The State then called Ken Butler to testify. Ken Butler testified that he was present on December 5, 1989 at 6402 Haltnorth Walk. He stated that as he watched the end of the -4- fistfight, he observed the victim point a shotgun directly into the face of Erie Harris. Eric Harris appeared drunk and he was agitating the victim. Ken Butler spoke to the victim in an attempt to cool down the situation. According to Ken Butler, the victim appeared as though he was on something and it looked like he was going to shoot Eric Harris. Ken Butler testified that just as it seemed like things were cooling down, he heard a gunshot from the area in which appellant was standing. When he looked over, the victim fell to the ground and appellant had a gun in his hand. Ken Butler claimed it looked like a .38 caliber gun. Immediately thereafter, Ken Butler heard systematic shooting, but he was unable to see where the shots were coming from. Detective William Hartman from the Cleveland Police Depart- ment's Scientific Investigation Unit next testified for the State. He testified that on December 5, 1989, he and his partner, Detective Dent, responded to a homicide call at 6402 Haltnorth Walk. Detective Hartman was assigned to photograph the crime scene and conduct an investigation. When Detective Hartman arrived on the scene, he observed several shell casings and found the victim laying face down on the bottom of the stairs. Detective Hartman and other members of the Cleveland Police Department secured the area, photographed the crime scene, and retrieved several spent shell casings and live shells of .9mm caliber, .38 caliber and .45 caliber. -5- Detective Hartman stated that no weapons were confiscated from the scene. Officer Hilary Cudnik of the Cleveland Police Department next testified that she and her partner were the first officers to appear on the crime scene. As they pulled up in their patrol car, they observed numerous people running from the building. When they entered the building, they observed the victim laying face down on the stairs. He appeared to be dead. Officer Cudnik further testified that they secured the crime area and checked the area for shell casings and weapons. On the scene was the victim's girlfriend, who was intoxicated. She was subsequently taken to the police station to be interviewed. The State then called Sharon Patterson to testify. She testified that on December 5, 1989, she was at 6402 Haltnorth Walk visiting somebody. At around 10:00 P.M., there were several people in the building's hallway and a fistfight began. At that point, her cousin, the victim, entered the building, came up the stairs and said, "Freeze, this is a stick-up." All the individuals who were fighting were on the first floor landing as the victim walked up the stairs toward them. Once the victim appeared with the shotgun, everyone stopped fighting. Eric Harris then walked up to the victim and told him, "Shoot me, shoot me." While Eric Harris and the victim had a verbal confrontation, Malcolm Collins came up on the victim's back, and Sharon Patterson heard a gunshot. -6- Once Sharon Patterson heard the gunshot, she observed the victim fall and then she saw Malcolm Collins "come out". Suddenly, appellant pushed Eric Harris out of the way and then he shot the victim about six times. According to Sharon Patterson, when appellant shot the victim, the victim's shotgun was laying beside him. Apparently, the shotgun was not fired by the victim. Sharon Patterson further stated that after the appellant shot the victim, Norman Robertson came out and also shot him. Eventually, she left the building. She said that as she left the building, she observed appellant loading a gun. The last witness to testify for the State was Detective Michaelene Taliano from the Cleveland Police Department's Homicide Unit. Detective Taliano testified that she investigated the crime and interviewed several witnesses. It was her belief that appellant was a member of the Hip-Hop Crew. At the close of the State's case-in-chief, appellant moved for a judgment of acquittal pursuant to Crim. R. 29(A). The trial court denied appellant's motion. Appellant testified on his own behalf that he went to the King Kennedy Projects on December 5, 1989 so he could check on his mother, who was on medication. He claimed that he only went to the King Kennedy Projects on December 5, 1989 in order to check on his mother's well being. Appellant denied being a member of the Hip-Hop Crew, a gang that hung out in the King Kennedy Projects. He stated that the -7- Hip-Hop Crew was a violent gang and its members carry guns and sell drugs in the King Kennedy Projects. Appellant further stated that Hip-Hop Crew's members included Norman Robertson, Malcolm Collins, James Jackson and Eric Harris. Appellant testified that three or four months before this incident, he obtained a .25 automatic solely for the purpose of protection. According to appellant, members of the Hip-Hop Crew often followed him home. On the night of December 5, 1989, appellant visited his mother and left her building. He said that as he left his mother's building, he heard that there was a fight in another building. Appellant heard that his sister Artisa was near the fight, thus he became concerned for her safety and he wanted to get her out of the building. Appellant cocked his gun and walked toward 6402 Haltnorth Walk. Appellant stated that after he entered the building, he saw a bunch of people in the hallway and a commotion was occurring. Apellant did not see his sister in the hallway. Just as appellant was walking up the stairs, the victim walked by him with a sawed-off shotgun in his hands, and then he shot it in the air screaming, "Freeze, this is a stick-up." At that point, the fight in the hallway stopped and Eric Harris walked up to the victim and pushed the shotgun away. Eric Harris was mouthing off, and appellant believed that the victim was going to shoot Eric Harris and himself. In the meantime, -8- Malcolm Collins went around the back stairs and came up on the victim's back and shot him. Appellant admitted that he then pushed Eric Harris out of 2 the way and fired his own gun twice. He did not know whether he hit the victim. Appellant stated that immediately, thereafter, James Jackson, Norman Robertson and Malcolm Collins began to shoot the victim several times. According to appellant, when he fired his gun twice, the victim was still standing and he had the shotgun in his hands. Appellant was fearful that the victim would pull the trigger and shoot him. Appellant further testified that he left 6402 Haltnorth Walk immediately after the shooting and he went home. He subsequently learned that the police were looking for him, thus, upon the advice of his mother, he voluntarily went to the police station. Appellant admitted that he lied in his police statement when he denied having a gun and denied shooting the victim. Appellant also admitted to lying to his attorney. After appellant testified, the state presented the rebuttal testimony of Detective Jon Qualey from the Homicide Unit. Detective Qualey testified that on December 20, 1989, after reading appellant his constitutional rights, they interviewed him about this shooting. When they interviewed appellant, he denied having a gun on the night in question and never mentioned self- 2 It must be noted that no .25 caliber shell casings were found on the scene. -9- defense. At the close of all the evidence, appellant renewed his Crim. R. 29 motion for judgment of acquittal. The trial court overruled appellant's motion. Subsequently, the jury found appellant guilty of murder with the firearm specification. Appellant was sentenced to a term of 15 years to life and to a term of three years for the use of a firearm. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE DEFENDANT WAS DENIED HIS RIGHT TO PRESENT A DEFENSE WHEN THE COURT REFUSED TO ALLOW THE POLICE OFFICER TO STATE THE INCONSISTENT STATEMENTS MADE BY PROSECUTION WITNESS ERIC HARRIS. A) THE REFUSAL TO ALLOW THIS EVIDENCE WAS CONTRARY TO THE OHIO RULES OF EVIDENCE. B) THE REFUSAL TO ALLOW THIS EVIDENCE DENIED TO THE DEFENDANT HIS RIGHT TO PRESENT A DEFENSE. II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE TESTIMONY OF A CO-DEFENDANT, ERIC HARRIS, WAS OBTAINED BY THE PROSECUTION UNDER CIRCUMSTANCES BY WHICH THE CREDIBILITY OF THE WITNESS WAS COMPROMISED AND TESTIMONY WAS PRESENTED IN SUCH A WAY THAT THE CREDIBILITY OF WITNESSES WAS VOUCHED TO BY THE PROSECU- TION. III. THE DEFENDANT WAS DENIED A FAIR TRIAL BY REASON OF IMPROPER ARGUMENTS BY THE PROSECUTING ATTORNEY. IV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONSTRUCTIVELY AMENDED THAT INDICTMENT TO CHARGE UPON A[N] AREA OF AIDING AND ABETTING WHICH WAS NOT ALLEGED IN ANY OF THE PLEADINGS. -10- V. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY INSTRUCTED THE JURY UPON AIDING AND ABETTING. VI. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL AS CLEARLY THE DECEDENT, WHO WAS ENGAGING IN A FELONY OF AN AGGRAVATED ROBBERY AND/OR FELONIOUS ASSAULT, CLEARLY AUTHORIZED THE USE OF LETHAL FORCE AGAINST HIM. VII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO ANSWER A QUESTION POSED BY THE JURY AND THEN PROCEEDED TO ANSWER THE QUESTION IN A PREJUDICIAL MANNER. VIII. THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ONLY SUBMITTED PORTIONS OF ITS INSTRUCTIONS TO THE JURY IN RESPONSE TO THE QUESTION OF THE JURORS. IX. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO INSTRUCT UPON THE DEFENSE OF OTHERS. In his first assignment of error, appellant claims that the trial court improperly denied him an opportunity to present evidence of a prior inconsistent statement that Eric Harris made to the police. Appellant specifically argues that the trial court erred in refusing to permit him to question Detective Toliano about the contents of Eric Harris's police statement. Evid. R. 613 provides for the admission of a prior inconsistent statement for impeachment purposes. Evid. R. 613(B) provides in pertinent part as follows: Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is -11- afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. Whether to admit a prior inconsistent statement for impeachment purposes is a matter within the trial court's discretion. Schwartz v. Wells (1982), 5 Ohio App. 3d 1. In the instant case, during Eric Harris's cross-examination by appellant's counsel, Eric Harris was given an opportunity to explain or deny his prior statements made to the police. Eric Harris further indicated when and where the statements were made and under what conditions. Finally, appellant admitted to some inconsistencies in his police statements, but he also claimed that all his statements were consistent and the same. We find that appellant's counsel established at trial the appropriate foundation for the introduction of prior inconsistent statements pursuant to Evid. R. 613. The issue now is whether the trial court erred in refusing to permit appellant's counsel to cross-examine Detective Toliano with regard to appellant's prior inconsistent statements, set forth in his police statements. Appellant contends that his counsel should have been permitted to use Eric Harris's police statements during the cross-examination of Detective Toliano. Appellant does not argue that the police statements conflict with Detective Toliano's testimony. Instead, appellant claims that Eric Harris's police statements were inconsistent with each other and conflicted with his trial testimony. We find that the trial court did not err -12- in prohibiting appellant from using Eric Harris's police statements during the cross-examination of Detective Toliano. Since Eric Harris's police statements did not constitute prior inconsistent statements made by Detective Toliano, they were not admissible for impeachment purposes during her cross-examination. See, State v. Butcher (Oct. 31, 1985), Cuyahoga App. No. 49704, unreported. Moreover, we find that the trial court's exclusion of that evidence did not prejudice appellant, since Eric Harris admitted to some inconsistencies between his trial testimony and his statements to the police. Further, Eric Harris was thoroughly cross-examined by appellant's counsel and any and all conceivable discrepancies should have been thoroughly covered. We find that it is not evident from the record that appellant suffered any prejudice from the procedure of the trial court. Accordingly, we conclude that the trial court did not abuse its discretion in preventing appellant from questioning Detective Toliano about the contents of Eric Harris's police statements. Appellant's first assignment of error is not well taken and is overruled. Appellant argues in his second assignment of error that he was denied a fair trial due to Eric Harris's testimony in exchange for the dismissal of charges against him. Appellant basically argues that since Eric Harris agreed to testify truthfully on the basis that criminal charges would be dismissed -13- against him, his credibility was being vouched for by the State. The credibility of witnesses is primarily an issue for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. It is the trier of fact who considers the demeanor of the witness and the manner in which he testifies, his connection or relationship with the parties, and his interest, if any, in the outcome. State v. Antill (1964), 171 Ohio St. 61. In the instant case, we cannot say that appellant was denied a fair trial as a result of Eric Harris's testimony in exchange for a dismissal of criminal charges against him. Eric Harris was extensively questioned by both the State and appellant's counsel about his interest in testifying. It was made perfectly clear to the jury that if Eric Harris testified truthfully that the criminal charges against him would be dismissed. We find that the jury was entitled to believe or not to believe the testimony of Eric Harris. The jury was well aware of Eric Harris's connection with appellant and his interest in testifying on behalf of the State. The jury, as trier of fact, properly weighed the credibility of Eric Harris. Appellant's second assignment of error is without merit and is overruled. In his third assignment of error, appellant asserts that he was prejudiced and denied a fair trial as a result of prosecutorial misconduct during closing arguments. -14- The conduct of the prosecuting attorney during the trial cannot be made a ground of error, unless the conduct is so egregious, in the context of the entire trial, that it renders the trial fundamentally unfair. State v. Maurer (1984), 15 Ohio St. 3d 239, 266. The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper, and if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St. 3d 13, 14. In making a determination of prosecutorial misconduct in closing arguments, the court considers several factors including: 1) the nature of the remarks; 2) whether an objection was made by counsel; 3) whether corrective instructions were given by the court; and 4) the strength of the evidence against the defendant. State v. Hill (1977), 52 Ohio App. 2d 393, 396. Where it appears that the prosecutorial comments constituted an invitation to the jury to go beyond the evidence or incited the passions or prejudice of the jury, and thereby deny the accused a fair trial, prejudicial error may inhere. State v. Price (1979), 60 Ohio St. 2d 136, 140. In support of his allegation of prosecutorial misconduct, appellant cites to several instances during closing arguments in which the prosecutor went beyond the evidence and appealed to the passions and prejudice of the jury. In one instance, appellant claims that the prosecutor improperly commented that the defense had not brought in Michael Horton to testify. A review of the record reveals that the trial -15- court did sustain appellant's objection to this comment by prohibiting the prosecutor from making such a statement. The trial court further stated, on the record, that the prosecutor could not comment on somebody who did not testify. We find that the trial court properly prohibited the prosecutor from commenting about the failure of the defense to call call a witness to testify. Further, we find that appellant has failed to demonstrate how he was prejudiced. The trial court sustained his objection and stated on the record that the prosecutor could not continue with any comments regarding the nonappearance of a witness. Appellant also cites to five other instances of prosecutorial misconduct during closing arguments. However, a review of the trial transcript indicates that appellant failed to raise an objection as to each one of these claims of prosecutorial misconduct. Accordingly, we conclude that any objections about prosecutorial misconduct were waived. See, State v. Williams (1977), 51 Ohio St. 2d 112. Finally, based upon the totality of circumstances and the strength of the evidence against appellant, we conclude that the comments made by the prosecutor during his closing arguments did not incite the passions of the jury and thereby deny appellant a fair trial. Appellant's third assignment of error is not well taken and is overruled. -16- Appellant's fourth and fifth assignments of error will be discussed together, since they both pertain to the issue of aiding and abetting. Appellant initially argues that the trial court's jury instruction on aiding and abetting constituted a constructive amendment to the indictment. Appellant claims that he proceeded in trial as though he was being prosecuted as a principal offender, not as an aider and abettor. R.C. 2923.03(F) provides as follows: (F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense. It is well established that where the evidence supports a theory of complicity, a jury instruction thereon is appropriate even though the theory was not expressly set forth in the indict- ment or the bill of particulars. State v. Strub (1975), 48 Ohio App. 2d 57, 62. Upon a review of the record herein, we find that there was sufficient evidence presented from which reasonable minds could find appellant guilty as an aider and abettor. Therefore, we conclude that the trial court's charge to the jury on aiding and abetting was proper. Appellant next contends that the jury instructions on aiding and abetting were, themselves, erroneous. However, appellant failed to raise an objection thereto. Thus, we find that -17- appellant is precluded from assigning as error the trial court's charge to the jury on aiding and abetting, since he failed to object when the alleged error could have been avoided or corrected by the trial court. Williams, supra. Moreover, we find that the trial court's jury instruction on aiding and abetting was proper. We determine that said instruc- tion properly encompassed the elements of aiding and abetting and assisted the jury in determining appellant's guilt. Appellant's fourth and fifth assignments of error are without merit and are overruled. Appellant contends in his sixth assignment of error that the trial court erred in denying his Crim. R. 29 motion for judgment of acquittal. Appellant argues that he was authorized to use lethal force against the victim who was carrying a shotgun. 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. Apanovitch (1987), 33 Ohio St. 3d 19, 12. Appellant was charged with Murder, in violation of R.C. 2903.02, which states as follows: (A) No person shall purposely cause the death of another. There is no dispute that the victim, Ralph Taylor, was carrying a shotgun when he entered 6402 Haltnorth Walk. The -18- evidence further showed that the victim pointed the shotgun into Eric Harris's face. Appellant contends that this evidence supported his use of lethal force. However, the evidence revealed that the victim was shot in the back by Malcolm Collins and the victim fell to the ground with his shotgun at his side. It was at this point that appellant took his own gun out and fired it twice at the victim. The evidence is undisputed that appellant shot the victim and that the victim died as a result of multiple gunshot wounds. We find that the evidence in this case could leave reasonable minds with different conclusions as to whether each element of the crime of murder had been proved beyond a reasonable doubt. Thus, we conclude that the trial court did not err in denying appellant's Crim. R.29 motion for judgment of acquittal. Appellant's sixth assignment of error is not well taken and is overuruled. In his seventh assignment of error, appellant argues that the trial court improperly handled a question from the jury during its deliberations. Appellant contends that the trial court answered the jury's question in a prejudicial manner. A review of the trial transcript reveals that appellant failed to raise an objection on this matter. Accordingly, we conclude that appellant is now precluded to raise the assigned error on appeal. Williams, supra. -19- Appellant's seventh assignment of error is not well taken and is overruled. In his eighth assignment of error, appellant asserts that the trial court erred in denying his request to have the jury instructions read back to the jury in its entirety after the jury had a question. Appellant specifically contends that when the trial court answered the jury question in written form, the trial court should have submitted the entire charge as opposed to only a portion of it. "Crim. R. 30 does not preclude a trial court from reducing its jury instructions or part thereof to writing to be taken with the jury to the jury room." State v. Whitmeyer (1984), 20 Ohio App. 3d 279, paragraph two of the syllabus. We find no authority, and appellant presents none, in which the trial court is prohibited from submitting a written charge or a part thereof to the jury. Cf. Whitmeyer, supra, at 281. Appellant's eighth assignment of error is without merit and is overruled. Appellant contends in his ninth assignment of error that the trial court erred in failing to instruct the jury on the defense of others. A defendant is entitled to a jury instruction on the defense of others if he has introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable persons concerning the existence of such issue. State v. Melchior (1978), 56 Ohio St. 2d 15, paragraph one of the -20- syllabus. Evidence is deemed sufficient where a reasonable doubt has arisen based upon a claim of defense of others. The defendant only bears the burden of going forward with evidence of a nature and quality sufficient to raise that defense rather than prove the applicability of such defense by a prepon- derance of the evidence. State v. Robinson (1976), 47 Ohio St. 2d 103. In the instant case, appellant never testified that he was coming to the defense of Eric Harris. At all times, appellant claimed that he was scared and that the victim had a shotgun in his hands when he shot him. We cannot say that appellant presented any evidence warranting an instruction on the defense of others. Appellant's ninth assignment of error is without merit and is overruled. Trial court judgment is affirmed. -21- 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 ANN McMANAMON, J., CONCUR 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. .