COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60519 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION FRANCINE HEPBURN, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 7, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-247,068 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Stanley L. Josselson 1276 West 3rd Street Suite No. 100 Cleveland, Ohio 44113 -2- NAHRA, J.: This case arose out of an incident on November 30, 1989 in which Francine Hepburn, defendant-appellant, shot Nathan and Timothy Bozeman several times at 12901 Angelus Avenue in Cleveland, Ohio. On November 28, 1989, in the afternoon, Hepburn drove to 13115 Southview Avenue, a house in which Nathan Bozeman lived and from which he operated a crack house. Hepburn was let into the house by Deanne Fields, a crack dealer there, who accepted Hepburn's offer of a gold chain in exchange for a rock of cocaine. Once she consumed the cocaine, Hepburn left and returned about a half hour later with more jewelry. Hepburn exchanged a gold bracelet, another gold chain, and a medallion with Deanne Fields for more cocaine which she smoked on the premises. Fields revealed that crack cocaine is highly addictive and that users do anything they can to acquire and consume more of it. Upon Nathan's return to the house at 4:30 p.m., he observed Hepburn smoking cocaine there with Fields. Neither Nathan nor Deanne knew Hepburn, who identified herself as Sharon. The three stayed at the house until 11:00 p.m. or so when Deanne left. At approximately 1:00 a.m., Nathan requested that Hepburn leave. However, Hepburn requested that she stay since she was having problems with her husband and had not been home for a couple of days. Nathan acquiesced and Hepburn fell asleep in the kitchen; she was awakened the next morning upon the arrival of a drug dealer named Willy. -3- Between 9:00 a.m. and 10:00 a.m. that morning, Hepburn drove to the bank in her red Cadillac and came back with a bank withdrawal slip and more cocaine which she began to smoke. Shortly thereafter, Ken Washington, a friend of Nathan's, came to the house. When he was about to leave, Hepburn requested that he drive her to the store since she had run out of gas. Washington did so and on the way to the store Hepburn sold him a gold chain necklace for $20.00. Upon her return to Nathan's house, Hepburn purchased more cocaine from Deanne and smoked it. At approximately 8:00 p.m. that evening, Nathan asked Hepburn when she was going to leave; she expressed her interest in staying there. Later that evening, Hepburn requested that Nathan call her husband to tell him that her car had broken down and that she needed help. By doing so, Hepburn could gain access to her house and gather clothing. Upon her request, Nathan called Hepburn's husband, posed as Mr. Wayne, and told him his wife was stranded on E. 72nd off of the shoreway. Moses Hepburn, defendant's husband, stated over the phone that he would come to assist his wife. Nathan revealed that at such time defendant left his house and returned about forty minutes later with a loaded .38 caliber blue steel revolver. Moses Hepburn testified that he went to the address given to him over the phone but did not find the red Cadillac there which he owned and which his wife had driven. Upon his return home, Moses discovered the back door unlocked; he went upstairs and found the .38 caliber revolver and various -4- pieces of jewelry missing. Moses called the police and spoke with Cleveland police officer Dale Dvorak. Dvorak came to the house and found no signs of forced entry. Hepburn told Dvorak that his wife had a drug problem and that he wanted to terminate the relationship and get her out of the house. Defendant sought to trade the revolver for cocaine. Nathan engineered a transaction with a friend named Marvin; Hepburn smoked the cocaine she had bartered for until 2:30 a.m. Hepburn stayed over for the evening only under the agreement that she would go to the bank the next day and pay for her stay. The next morning, November 30, 1989, Nathan awakened at 7:30 a.m. and called his brother Timothy Bozeman and asked him if he could drive Hepburn to the TransOhio bank. Tim arrived at Nathan's house at about 9:00 a.m. Hepburn directed Tim to the bank; she went in and returned and revealed to Tim and Nathan that the lady she knew who worked there was not in at the time. Hepburn said she had to go home to pick up her bank card to withdraw money. Hepburn said that she would pay them $100.00 after they dropped her off. Tim drove her to Angelus Avenue where Hepburn lived; she noticed that her husband was still home. They drove to a nearby pay phone from which Hepburn called her husband and told him that her car had broken down on 95th and Cedar. Shortly thereafter, Hepburn and the Bozemans observed Moses Hepburn leave his house. Tim parked nearby and Hepburn walked toward her house. The Bozemans were waiting in the car -5- when Hepburn returned with her hand bleeding and something wrapped around it. She called for Nathan to assist her. Nathan walked to the house and Hepburn showed him about ten rifles and shotguns upstairs and three or four televisions in the basement. Hepburn told Nathan that they could take them but Nathan told her to get what she came for and that they should leave since her husband would likely return. Nathan asked to use the telephone; he dialed with his back turned to Hepburn when she fired three shots into his lower back and left side. Hepburn then climbed the stairs and called for Tim to come and help Nathan with some bags. Tim came in the side door when Hepburn fired shots at him from about three feet away. He fell face down on the driveway but managed to stagger down the street. Eventually, police and paramedics arrived after Timothy contacted someone at a nearby church. Nathan was hospitalized for five months and suffered paralysis. Tim was hospitalized but also survived the incident. Cleveland police officers Carlin Mayle and Kevin Martin investigated the incident after E.M.S. arrived. Hepburn told them that she was upstairs when she heard a knock at the side door. She explained that she went to the door and that the two males forced their way into the house. She told officer Mayle that she ran upstairs to the dining room, grabbed a gun and shot both of them. She further explained to officer Martin that one male had a gun and took her upstairs to look for money and that the other male went down to the basement. Once down in the -6- basement, the male who had the gun put it down to help the other move equipment. At such time, she seized the moment and shot both until she ran out of bullets and went upstairs to find another gun. She told office Mayle that the gun she used was left in the basement near the victim who was lying there. No such gun was found there. However, Mayles found a handgun with a pearl handle in the living room closet. After denying that such gun was the one she used, Hepburn admitted that she shot the victims with it. Upon learning from Moses Hepburn that his wife had been missing for three days, officer Mayle asked Hepburn about where she had been. Hepburn changed her earlier story and alleged that she was involved in an automobile accident and that the two males abducted, beat, and raped her. However, Hepburn did not request to go to the hospital and officer Mayle did not observe any marks or bruises on her face or arms. Hepburn also alleged that the males injected her with narcotics, forced her to make a withdrawal from her bank and to enter her own house to obtain goods to sell for drugs. Once in her house, she maintained that she shot them in self-defense. On March 5, 1990, Hepburn was indicted on two counts of felonious assault with gun specifications pursuant to R.C. 2903.11. On August 2, 1990, trial ensued and a jury found Hepburn guilty of both counts in the indictment. The trial court sentenced Hepburn to two terms of eight to fifteen years -7- imprisonment and one three-year term for the gun specifications, all of which were to run consecutively. This timely appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN NOT ALLOWING ONE OF THE WITNESSES FOR THE DEFENSE, THE DEFENDANT'S HUSBAND, TO TESTIFY ABOUT THE ALLEGED VICTIMS REPUTATION IN THE COMMUNITY AND THE THREATENING CONTACT BETWEEN THE WITNESS AND THE DEFENDANT AND THE ALLEGED VICTIMS AFTER THE SHOOTING INCIDENT. Hepburn contends that the trial court erred when it did not allow Moses Hepburn, defendant's husband, to testify about the reputation in the community of the two victims. In this way, the trial court weakened Hepburn's assertion that she was acting in self-defense. Evid. R. 404(A)(2) provides in pertinent part: (2) Character of victim: Evidence of a pertinent trait of character of the victim of the crime offered by an accused * * * is admissible. Evid. R. 405(A), pertaining to methods of proving character, provides in pertinent part: (A) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. * * * Here, Mr. Hepburn testified that he did not know the Bozemans prior to the date on which his wife shot them. Nor did his wife know them prior to the shooting. As a result, any testimony about the victims reputation in the community was not relevant to -8- Mrs. Hepburn's state of mind at the time of the incident. Consequently, we believe the trial court properly excluded Mr. Hepburn's testimony. We also note that the extensive criminal records of both victims were admitted into evidence such that the jury might infer their proclivity for violence. Defendant's counsel also argued the same during closing arguments. If there had been error, it would have been harmless. Defendant also contends that the trial court erred when it did not allow her husband to testify that he received alleged phone calls at home from Nathan Bozeman after the incident and before trial. However, her husband's testimony reveals that he could only speculate that Bozeman was the caller because he had never heard him or spoken with him before. While he thought the caller's voice sounded like that of a Mr. Wayne, who had called before and was identified as Bozeman, he could not be certain that Bozeman was the caller. As a result, we do not believe that the trial court abused its discretion by not permitting him to testify about these alleged calls from Bozeman. Columbus v. Taylor (1988), 39 Ohio St. 3d 762, 529 N.E.2d 1382. Accordingly, appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ALLOWING A JUROR WHO HAD MADE CONTACT WITH A WITNESS FOR THE STATE, AND SUCH CONTACT WAS IN THE FORM OF A POTENTIAL BRIBE OR THREAT, AND SAID WITNESS LATER BECAME THE FOREPERSON OF THE JURY. -9- Hepburn asserts that she was prejudiced because one of the state's witnesses had contact with one of the jurors during the trial. She maintains that the trial court erred by failing to discharge the particular juror and replace the juror with an 1 alternate one pursuant to R.C. 2945.29 and R.C. 2945.36. The record reflects that the juror advised the trial court that he had a chance encounter with someone who turned out to be a witness for the state: The Juror: When I was coming in this morning, the man approached me as I was walking up near the door downstairs by the Justice Center kind of coming in off of the street, Ontario, St. Clair. I was walking up. He asked me if I knew which door was the county city door. I said sorry, I don't know what you mean. He said there is supposed to be a door that's a county city. Don't they separate it? I said I don't know. I'm just down here for jury duty, and he said oh, okay. Is this the way into the court? I said yeah, that's the way I go in everyday. He said I am upstairs on 17 today. He said well have fun making a lot of money. A lot or (sic) us jurors joke about the big pay. I said yeah, the big money, your lunch and parking. He said you never know, maybe you can make a lot of money. I never gave it a thought. One of those passing things. When I got off the elevator on 4, he got off the other elevator, and it's one of those things how you think I thought he was going to 17, then you never give it 1 R.C. 2945.36 states in pertinent part: The trial court may discharge a jury without prejudice to the prosecution: (A) For the sickness or corruption of juror * * * * (Emphasis added.) We note that R.C. 2945.29 authorizes a trial court to designate an alternate juror for a regular juror unable to perform his duties. -10- another thought until the first victim came in the wheelchair and he was the man in kind of a medium brown suit that held the door for him, and it just floored me to see the same guy. It could have been a perfectly innocent coincidence. (Tr. 73, 74.) The trial court questioned the juror about his ability to fairly and impartially evaluate the evidence. The juror conveyed to the trial court's satisfaction that he would be able to fulfil his duties. The prosecuting attorney also disclosed to the court that the alleged witness who inadvertently communicated with the juror on the elevator, Kenneth Washington, stated to the prosecution that he did not remember speaking to a juror. The prosecuting attorney also made clear that the witnesses were separated during the selection of the jury. Litigants are entitled to have their rights tried and resolved by an impartial, unprejudiced, and unbiased jury. Petro v. Donner (1940), 137 Ohio St. 168, 28 N.E.2d 503, syllabus. A new trial may be granted for the misconduct of the jury where the substantial rights of the defendant have been materially affected. R.C. 2945.79(B); Crim. R. 33(A). Conversations by a third person with a juror during the progress of a trial for the purpose of influencing the verdict may invalidate the verdict. State v. Higgins (1942), 70 Ohio App. 383, 41 N.E.2d 1022. However, the determination of whether a jury should be discharged and a mistrial declared lies within the sound discretion of the trial court. Bowman v. Alvis (1950), 88 Ohio App. 229, 96 N.E.2d 605, paragraph three of the syllabus. Here, we do not believe the trial court abused its discretion by preserving the original -11- composition of jurors and not discharging the juror in question. The trial court was satisfied that the juror could be impartial, unbiased, and unprejudiced. Reviewing the colloquy between the bench and the juror, we believe that the juror's encounter with the state's witness was purely coincidental and would not compromise the juror's ability to carry out his duties. Accordingly, appellant's assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN THE DETERMINATION OF GUILT BY THE JURY IS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. While listing the above assignment of error in her brief, Hepburn failed to present any arguments in support of this assignment of error or to brief it properly. In so doing, Hepburn has failed to comply with App. R. 16(A)(4). As a result, this assignment of error shall be disregarded. App. R. 12(A); State v. Eddington (1976), 52 Ohio App. 2d 312, 369 N.E.2d 1054. Accordingly, the judgment of the trial court is affirmed. -12- 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 HARPER, J., CONCUR. JOSEPH J. NAHRA 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. .