COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60808 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ANDREZEJ CHLEBOWSKI : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 28, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-251,506 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL J. ERTLE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO, JR. Attorney at Law 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Andrezej Chlebowski, and his wife, Janina Chlebowski, were indicted for felonious assault in viola- tion of R.C. 2903.11. Following a jury trial, appellant was found guilty as indicted. Janina Chlebowski was found not guilt- y. Appellant timely appeals. For the reasons that follow, we affirm appellant's conviction. The pertinent testimony is as follows: Patricia Owens testified that on September 15, 1989, she and her family moved back to Cleveland from Tennessee. That day, she entered into an oral lease agreement with the Chlebowskis to rent an apartment located in the Chlebowskis' duplex home. Owens stated a portion of the garage was part of the leased premises. She stated she did not have enough money for the security deposit and the first month's rent, so Janina Chlebowski agreed to accept a two-hundred-fifty-dollar security deposit and gave her one month free rent. Later that night, the Chlebowskis shared pizza and vodka with Owens and her family. However, the following day, Janina Chlebowski demanded that Owens pay the first month's rent payment of two hundred fifty dol-lars. Owens further testified that Janina frequently de- manded Owens to go on welfare so that she could pay rent. Subse- quently, eviction proceedings were initiated by the Chlebowskis. - 2 - On October 13, 1989, a hearing was held in the Cleveland Municipal Court, Housing Division. Apparently, a continuance was granted, and the parties returned home. Owens stated that when she returned, she found appellant moving her belongings from her por-tion of the garage and throwing them over the fence. Owens decided to confront appellant, but appellant began approaching her. Owens told her daughter to call their neighbor, Lucy Sokolowski, as a witness. Lucy came right over and noticed appellant approaching Owens with a claw hammer in his hand. Lucy hollered at Owens, who fled toward a location where appellant's dog was chained. Appellant's dog was described as a medium- sized labrador retriever mix. Appellant pulled out of the ground a metal stake used to keep his dog chained, and with his dog, still chained to the stake, proceeded toward Owens. Appellant said something in Polish to his dog, which immediately attacked Owens. The dog latched onto Owens' arm and right hand as Owens attempted to escape. At some point, Janina came out of the house with a camera and started to take pictures. However, as Janina attempted to hit Owens, she lost the camera. Lucy promptly picked it up and pro-ceeded to take pictures of the attack, which were later admitted into evidence. As Janina joined in the attack by hold- ing Owens and pulling her hair, appellant proceeded to strike Owens with the stake and kick Owens between the legs. Meanwhile, the dog continued to bite into the back of Owens' arm. - 3 - Somehow, Owens managed to get into her portion of the du- plex. An EMS ambulance arrived, but Owens was told it was not for her; rather, Janina Chlebowski suffered blows to her face and was trans-ported to the hospital. On cross-examination, Owens stated she did swing at Janina and may have connected. Eventual- ly, an EMS ambulance transported Owens to the hospital, where she was treated for a dog bite and was released from the hospital that day. Mean-while, the police eventually arrived, and Sokolo- wski turned the pictures over to them. Lucy Sokolowski corroborated Owens' testimony. Lucy also testified that after the affray, appellant ran over to her, grabbed her right breast and attempted to pull her into his yard. Donald Meel, a Cleveland Police Officer, testified that he arrived at the scene and, responding to a possible hostage situa- tion, took a defensive posture. After learning there were no hos-tages, Officer Meel began investigating the incident. Offi- cer Meel observed bite marks on Patricia Owens' arm. Meel went around to the back yard and observed appellant walking around with his dog. Meel stated appellant looked extremely irate and would not comply with any orders. As the police went into appel- lant's back yard, appellant talked to his dog in Polish. In turn, the dog barked at the officers. Eventually, appellant was placed into custody and taken for a psychiatric evaluation. - 4 - After learning appellant was competent, appellant was placed under arrest. The defendants' versions of the facts were somewhat differ- ent from the case presented by the state. Janina testified that she never agreed to give Owens one month's free rent. She also stated that no portion of the garage was included as the rental premises. Janina stated that after the hearing in housing court, she and appellant returned home. She proceeded to make coffee while appel-lant went downstairs. Janina testified she heard their dog barking and went outside to investigate. There, she observed Owens and her son attempting to break into her garage. Janina ran back into the house to get her camera. However, when she returned outside, Owens grabbed her camera and gave it to her son, who gave it to Lucy Sokolowski. Owens then grabbed Janina by the hair, and a struggle ensued between the two women. Janina testified that during the struggle, she was punched in the face by Owens and hit in the face by Owens' husband, John Owens, with a pan lid. Meanwhile, appellant came outside and observed his tenants beating up his wife. Appellant testified he ran over to get his dog and returned. Janina then hollered for appellant to call 911. Appellant did and, on his return, he observed his wife lying on the ground. Appellant stated that during the affray, he grabbed a small piece of wood, but never hit or kicked Owens. - 5 - Janina stated she passed out as John Owens grabbed her neck. The next thing she remembered was waking up on the kitchen floor. Janina suffered a broken nose among other injuries. Based on the above evidence, the jury found appellant guilty of felonious assault in violation of R.C. 2903.11. Janina Chleb- owski was found not guilty. Appellant timely appeals, raising six assignments of error for our review. Appellant's first assignment of error states: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE DEFENDANT WAS QUESTIONED CONCERNING COL- LATERAL MATTERS AND THEREAFTER REBUTTAL EVI- DENCE WAS OFFERED TO ALLEGEDLY REBUT THESE COLLATERAL MATTERS. Appellant claims it was prejudicial error for the trial court to allow the prosecutor to cross-examine Janina Chlebowski on whether she ever turned off the water to the premises occupied by Owens. Appellant further argues it was prejudicial error for the trial court to allow the prosecution to call John Baker, an Inspector for the Cleveland Building and Housing Division, as a rebuttal witness to prove the Chlebowskis shut off Owens' water supply. However, our review of this issue is limited to whether the trial court committed plain error since appellant failed to object to such testimony at trial. Evid. R. 103(D). We conclude the trial court did not commit plain error. Pursuant to Evid. R. 608(B), trial counsel may seek to im- peach a witness on cross-examination through questions about prior mis-conduct which relate directly to truthfulness of that - 6 - witness or of another witness to which that witness has testi- fied. State v. Shields (1984), 15 Ohio App. 3d 112. The trial court has discretion to determine whether the alleged prior mis- conduct is "clearly probative of truthfulness or untruthfulness." However, other than the Evid. R. 609 exception for certain crimi- nal convictions, a witness' credibility may not be impeached by extrinsic proof of specific instances of his conduct. State v. Kamel (1984), 12 Ohio St. 3d 306, paragraph 2 of the syllabus. It has been said that trial counsel is bound by or stuck with any responses illicited from a witness on cross-examination concern- ing truthfulness. State v. Levin (1984), 12 Ohio St. 3d 172, 174. If this were not the rule, trials could potentially become bogged down in an interminable parade of witnesses called to testify as to specific instances of conduct of a prior witness in an attempt to contradict the prior witness' testimony on a purely collateral matter. Id. In the present case, this court cannot conclude the trial court abused its discretion or committed plain error in allowing the prosecution to cross-examine Janina Chlebowski on shutting off Owens' water supply, nor can it be concluded the trial court com-mitted plain error in allowing the rebuttal testimony of John Baker on the same collateral matter. This case is distinguish- able from Kamel, supra, inasmuch as the testimony of John Baker did not re-late to a specific example of a prior assault by ap- - 7 - pellant, nor did it directly tie into any other evidence relative to the events surrounding the assault on Patricia Owens. Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error is as follows: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT RULE UPON A MOTION TO SUPPRESS. Appellant argues the trial court committed prejudicial error by not ruling on his motion to suppress evidence obtained as a result of his warrantless arrest. However, before trial, the trial court asked whether any outstanding motions were before the court. Appellant's counsel failed to bring appellant's motion to the trial court's attention. It is well settled that an appel- late court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such alleged error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus. Therefore, appellant's second assignment of error is overruled. Appellant's third, fourth and fifth assignments of error raise similar issues of law and fact. Therefore, they will be discussed jointly. They state: III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPROPERLY INSTRUCTED - 8 - THE JURY ON THE ISSUE OF SELF-DEFENSE WHICH HAD REFERENCE TO A HOMICIDE PROSE- CUTION RATHER THAN THE FELONIOUS ASSAULT PROSECUTION WHICH INVOLVED THE CLAIM OF ONLY PHYSICAL HARM. IV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT PROPERLY IN- STRUCT UPON SELF-DEFENSE WITH RESPECT TO DEFENSE OF A FAMILY MEMBER. V. THE COURT COMMITTED PLAIN ERROR IN NOT INSTRUCTING UPON THE LESSER OFFENSE OF ASSAULT. Initially, we note appellant's trial counsel failed to ob- ject to any relevant portion of the trial court's jury instruc- tions. Consequently, our review of these issues is limited to whether the trial court committed plain error. Crim. R. 30(A) and Crim. R. 52(B). Appellant first argues the trial court committed prejudicial error in its charge to the jury on self-defense. Quoting exten- sively from the trial court's charge to the jury, appellant sta- tes the gist of the trial court's instructions required him to show that he was in imminent danger of death or of great bodily harm before he could exercise self-defense. Appellant contends the trial court's charge to the jury should have been tailored to the facts of the instant case, which involve a charge of merely causing physical harm rather than serious physical harm. Howev- er, appellant was charged with causing physical harm by means of a deadly weapon or dangerous ordnance. Thus, the trial court was correct in its charge, which was tailored to the fact that appel- lant allegedly used a deadly weapon in inflicting physical harm. - 9 - Akron v. Dokes (1986), 31 Ohio App. 3d 24, syllabus ("A real or perceived threat of death or great bodily harm is required in order for the use of deadly force to be justified as self-defense ***."). Moreover, appellant omits from his brief the following paragraphs read to the jury: Now, the law, unfortunately, does not measure nicely the degree of force which may be used to repel an assailant. However, if a person who is assaulted uses more force than the force reasonably appears to be necessary under the circumstances, and if the force used is so grossly dispropor- tionate to his apparent danger as to show re- venge or some sort of evil purpose to injure his assailant, then the defense of self-de- fense would not be available. All right. So basically you may use the same amount of force as is used against you. Accordingly, the trial court's charge to the jury covered the issue of self-defense where a deadly weapon or dangerous ordnance is used to inflict physical harm as opposed to serious physical harm. Next, appellant asserts the trial court committed prejudi- cial error in failing to instruct the jury on defense of a family mem-ber. However, this court cannot say that but for the error, the outcome of the trial would have clearly been different. Crim. R. 52(A). Appellant's conviction rests on overwhelming evidence, including the testimony of Patricia Owens, Lucy Sokolo- wski, Marie Buckshot, and Officer Meel and relevant exhibits. Moreover, the trial court's charge to the jury explicitly applied - 10 - to both defendants and referred to their beliefs and actions with respect to the defense of themselves. In essence, the trial court referred to the defendants collectively in defense of one another. Finally, appellant contends the trial court committed preju- dicial error in failing to charge the jury on the lesser included offense of assault. A charge on a lesser included offense is required only where the evidence presented at trial would support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St. 3d 23, paragraph two of the syllabus. In the present case, the evi- dence presented by the state does not support an acquittal of the crime charged. Substantial evidence was presented to show that appellant used a deadly weapon in the attack against Owens; to wit: the dog and/or a metal stake. Accordingly, this court finds no plain error in the trial court's charge to the jury. Appellant's third, fourth and fifth assignments of error are overruled. Appellant's final assignment of error follows: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL AS THERE IS INSUFFICIENT EVI- DENCE TO SUPPORT THE CHARGE OF FELONIOUS AS- SAULT. Appellant contends the trial court erred in overruling his motion for acquittal brought pursuant to Crim. R. 29(A). Appel- - 11 - lant argues the state failed to show that a deadly weapon was used in the attack. This argument lacks merit. Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal 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. 261, syllabus. The felonious assault statute (R.C. 2903.11) provides, in pertinent part, that no person shall knowingly cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. R.C. 2923.11(A) defines "deadly weapon" as "any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or pos- sessed, carried or used as a weapon." In the present case, the state presented evidence indicat- ing that appellant commanded his dog to attack Owens and that appellant struck Owens with a metal stake. We conclude that reasonable minds can reach different conclusions as to whether the use of appellant's dog and/or the metal stake constitute a deadly weapon as defined by R.C. 2923.11(A). Accordingly, appellant's final assignment of error is over- ruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. ANN McMANAMON, J. CONCUR JUDGE FRANCIS E. SWEENEY 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. .