COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60966 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARK S. JONES : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-251312 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES HYMAN FRIEDMAN Cuyahoga County Prosecutor Cuyahoga County Public Defender The Justice Center-8th Floor Warren L. McClelland 1200 Ontario Street Assistant Public Defender Cleveland, OH 44113 The Marion Bldg., Room 307 1276 West Third Street Cleveland, OH 44113-1569 - 2 - PATTON, J. Defendant-appellant Mark Jones ("appellant") was indicted on charges of aggravated burglary in violation of R.C. 2911.11, with an aggravated felony specification, and theft in violation of R.C. 2913.02, with a violence specification. Following a jury trial, the appellant was found guilty as charged in the indictment. He was sentenced to twelve to twenty-five years on the aggravated burglary offense and two to ten years on the theft offense, to run concurrently. The instant appeal challenging the convictions followed. At trial, the state presented the testimony of five witnesses against the appellant. The state's first witness was the victim, Verlinda Milton. Ms. Milton testified that she lived at 3855 East 123rd Street in Cleveland, Ohio. On March 30, 1990, Ms. Milton returned to her home from the Mt. Pleasant Barbecue Restaurant at 11:15 p.m. Ms. Milton testified that as she turned the corner near her home she noticed her side door was open and she could see what appeared to be a man in her hallway. She pulled into her driveway, exited her car, and walked toward the side door. As she approached the side door, she discovered that her television and her stereo were on the lawn next to her house. As she came closer she observed the appellant coming out of her side door wearing her three-quarter-length stone-washed coat, at which time she was able to look directly at the appellant for a few seconds prior to running across the street to a local store. - 3 - Once inside the store she told the store owner, George Brandon, that her home across the street was being robbed. Ms. Milton and Mr. Brandon immediately exited the store and started across the street. As they were crossing the street, they both observed the appellant placing the television set in the hedges near Ms. Milton's house. Upon observing this, Mr. Brandon called out the appellant's name, "Mark," whereupon the appellant turned and looked back prior to fleeing. Further, Mr. Brandon testified that he recognized the appellant as a frequent customer in his store. Both witnesses described the area as being well lit. After the appellant fled Ms. Milton and Mr. Brandon retrieved her property and placed it back in the house. At this point, Ms. Milton called the police to report the robbery. Ms. Milton testified that she was afraid of being in the house alone, so she decided to leave. As she was leaving, she saw the appellant standing directly across the street. She again ran to Mr. Brandon's store and, as she was running, she observed the appellant fleeing in the opposite direction. Thereafter, Ms. Milton parked her car in front of her house to watch the house until the police arrived. While sitting in her car, the appellant reappeared across the street. By this time he had changed clothes, and he danced in the street in front of Ms. Milton's car. He then walked to a house approximately two doors down, where he met some friends. - 4 - The police arrived at approximately 1:00 a.m. Officer Norman Saborski of the Cleveland Police Department testified that he and his partner, Officer Franklin Jones, responded to Ms. Milton's call. As a result of information provided by Ms. Milton, the appellant was found in his mother's backyard. The appellant was brought back to Ms. Milton's home, where she identified him as the man she saw exiting her side door earlier in the evening. At the time she identified the appellant she also informed the police that the appellant was wearing her sweatshirt under his jacket. Officer Saborski further testified the appellant indicated that at the time of the burglary, he was sitting in a pick-up truck drinking with two other men. When Officer Saborski and his partner interviewed those two men, they indicated that the appellant had not been drinking with them until approximately midnight. After confronting the appellant with the information obtained from their interview, the appellant changed his story and stated that at the time of the burglary he was at his parents' home. When Officer Saborski and his partner interviewed the appellant's mother, she indicated he was there, but he left at about 9:00 p.m. Officer Franklin Jones' testimony corroborated the testimony of his partner, Officer Saborski. Additionally, Officer Jones testified that the appellant appeared "out of it" although no smell of alcohol was detected upon him. - 5 - The first witness to testify on behalf of the appellant was Abraham Wiggins. He testified that he has known the appellant for over fifteen years. He further testified that on the night in question, he was with the appellant and John Woods in Mr. Woods' truck. According to Wiggins, the appellant arrived at approximately midnight and left approximately one hour later. He further admitted to having been questioned by the police at about 1:30 a.m. The final witness to testify on behalf of the appellant was his sister-in-law, Michelle Jones. Ms. Jones testified that on the night in question the appellant accompanied her to a friend's home, returned with her to her home, and then left to visit his mother's home at approximately 11:45 p.m. The defense rested its case and the state called Officers Saborski and Jones as rebuttal witnesses. Each of the rebuttal witnesses testified, over defense counsel's objections, regarding what their investigation and interviews of various people, including potential alibi witnesses, revealed. Appellant's first assignment of error provides: THE TRIAL COURT ERRED BY ADMITTING INADMISSABLE (SIC.) HEARSAY, OVER DEFENSE COUNSEL OBJECTIONS, DURING REBUTTAL TESTIMONY AND THEREBY DENIED APPELLANT HIS RIGHT TO CONFRONTATION AND DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. Appellant's assignment of error maintains the trial court erred in permitting, over objection, inadmissible hearsay during - 6 - the rebuttal testimony of the arresting officers. Specifically, appellant objects to the introduction of information obtained during police interviews of the appellant's mother and Mr. Woods. Initially, we note that the admission or exclusion of rebuttal testimony which is used to challenge or contradict the opposing party's case on material issues rests within the sound discretion of the trial court. State v. Lott (Mar. 16, 1989), Cuyahoga App. No. 54537, unreported, at p. 69. Moreover, the trial court has broad discretion in the admission and exclusion of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere. State v. Finnerty (1989), 45 Ohio St. 3d 104, 109. Appellant is correct that it was error to admit the arresting officers' hearsay testimony regarding what Mr. Woods and appellant's mother told them during their respective discussions. See, Evid. R. 801(C). Such testimony, absent an exception, is inadmissible. See, Evid. R. 802, 803. However, we conclude that the admission of the contested testimony was harmless error. Where evidence has been improperly admitted, the evidence is harmless beyond a reasonable doubt if the remaining evidence alone comprises overwhelming proof of a defendant's guilt. State v. Williams (1983), 6 Ohio St. 3d 281, 290. - 7 - In the instant case, the balance of the evidence constitutes overwhelming proof of the appellant's guilt. Both Ms. Milton and Mr. Brandon positively identified the appellant as the perpetrator of the theft offenses. In light of the strong identification testimony, we conclude the appellant was not materially prejudiced by the admission of the contested hearsay testimony. Thus, appellant's first assignment of error is overruled. Appellant's second assignment of error provides: THE APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND, SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, BY THE PURPOSEFUL MISCONDUCT OF THE PROSECUTOR. Appellant's second assignment of error alleges prosecutorial misconduct during the state's closing argument. Specifically, appellant alleges error in the prosecutor's reference to possible drug use by the appellant and the prosecutor's comment concerning the truthfulness of defense witness Abraham Wiggins. For the following reasons, appellant's argument lacks merit. Addressing a prosecutor's comments during closing argument, the Ohio Supreme Court has stated: 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. [Citations omitted.] State v. Smith (1984), 14 Ohio St. 3d 13, 14. - 8 - The prosecution is entitled to a certain degree of latitude in summation. State v. Liberatore (1982), 69 Ohio St. 2d 583, 589. Moreover, counsel for all parties may review the evidence presented and suggest reasonable inferences and conclusions derived from that evidence. Smith, supra. Remarks of a prosecutor may be intemperate, unprofessional, and better left unsaid; however, the conduct will not rise to a level sufficient to warrant reversal in all cases. State v. Woodards (1966), 6 Ohio St. 2d 14, 26. Initially, appellant incorrectly argues the prosecutor's comment about possible drug use was without evidentiary support. Review of the transcript reveals that Officer Jones testified that the appellant appeared to be intoxicated, yet he was unable to detect the odor of alcohol. Further, he testified that the appellant "appeared to be kind of out of it." (Tr. 158). The above testimony of Officer Jones is indicative of possible drug use by the appellant. We thus conclude that the prosecutor's comment constituted a reasonable inference from the evidence presented. Accordingly, we find nothing objectionable as to the prosecutor's comment concerning appellant's possible drug use. Next, appellant alleges error in the following statement made by the prosecutor: "He wasn't willing to lie, willing to lie, like Wiggins did." (Tr. 262). We acknowledge that it is improper for an attorney to express his personal belief or - 9 - opinion as to the credibility or veracity of a witness. Smith, supra. However, after a complete review of the record, we find no resulting prejudice. Based on the totality of the evidence, appellant's guilt is overwhelming. We thus conclude that the jury would have found the appellant guilty absent the alleged misconduct of the prosecutor. Accordingly, appellant's second assignment of error is overruled. Appellant's third assignment of error provides: THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that his convictions for aggravated burglary and theft are against the manifest weight of the evidence. Specifically, appellant contends that Ms. Milton's and Mr. Brandon's identifications of him as the perpetrator of the crime are suspect and do not constitute competent and credible evidence. Appellant's argument lacks merit. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: - 10 - The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See, Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. Martin, supra, at 175; see, also, State v. Davis (1988), 38 Ohio St. 3d 361, 365. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. The record reveals that Ms. Milton positively identified the appellant as the perpetrator of the offenses only two hours following the burglary of her home. Further, she observed the appellant coming out of her side door, at which time she was able to look directly at him for a few seconds prior to running across the street. At trial, Ms. Milton offered the following testimony about her initial encounter with the appellant: Q. When you confronted him one on one, were you looking at his shirt or his dress or what? A. I looked at his face. Q. At his face? A. Wanted to be able to give a description. Q. Approximately how long did the two of you stand there kind of staring at one another? - 11 - A. Seemed like minutes, but had to be like seconds. Q. Did you say anything or did he say anything? A. He said nothing. Q. You just kind of both looked at each other? A. Right. (R. 32-33). Additionally, Ms. Milton and Mr. Brandon identified the appellant as the person they observed placing Ms. Milton's television in the hedges prior to fleeing and each testified that the visibility was good and the area was well lit. Mr. Brandon testified he recognized the appellant as a frequent customer in his store, and the appellant turned and looked back when he called out the name "Mark." After reviewing the entire record, weighing the evidence and considering the credibility of the witnesses, we are not persuaded that the jury clearly lost its way and created such a manifest miscarriage of justice that the appellant's convictions must be reversed. The identification testimony of Ms. Milton and Mr. Brandon constitutes competent credible evidence upon which the jury could reasonably rely in concluding that the appellant committed the aggravated burglary and theft. Moreover, it was within the province of the jury as the trier of fact to reject the appellant's alibi defense. Accordingly, appellant's - 12 - convictions were not against the manifest weight of the evidence. Thus, appellant's third assignment of error is overruled. Judgment affirmed. - 13 - 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 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. NAHRA, P.J. ANN McMANAMON, J. CONCUR JUDGE JOHN T. PATTON 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. .