COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 62230 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MARTIN FORTE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 17, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-253124 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. JOAN C. LEHMANN, ESQ. Cuyahoga County Prosecutor 1257 Leader Building MICHAEL ZIDAR, ESQ. Cleveland, Ohio 44114 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA A. BLACKMON, J.: Martin Forte, defendant-appellant, appeals a decision from the trial court convicting him of felonious assault and criminal trespass. Forte assigns the following two errors for our review: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING THE STATE TO INTRODUCE REBUTTAL EVIDENCE OF SPECIFIC CONDUCT OF A DEFENSE WITNESS IN VIOLATION OF EVIDENCE RULE 608 AND DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO SUCH TESTIMONY. II. THE TRIAL COURT IMPROPERLY SENTENCED THE APPELLANT WHEN TWO OF THE FOUR CONVICTIONS FOR FELONIOUS ASSAULT WERE ALLIED OFFENSES OF SIMILAR IMPORT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On May 13, 1990, after an afternoon of drinking, Martin Forte, defendant-appellant, went to visit his girlfriend, Patricia Roberts. When he arrived, Roberts told Forte that she did not wish to see him. An argument began and Roberts slammed the door in Forte's face. Forte began to pound on the front security door of Roberts' house. The glass portion of the door shattered, but Forte was unable to gain entry. Forte then went to the side door and forced his way into the house. Roberts and her 11-year-old daughter, Dawn, ran upstairs to Dawn's bedroom and closed the door. Forte attempted to force the door open. After a few moments of silence, Roberts partially opened the door to look out. Immediately thereafter, Roberts saw -4- the flash of a gun as Forte fired a shotgun in the direction of the bedroom. A bullet lodged in a wall in a nearby hallway. Forte attempted to push his way into the bedroom. Roberts and Dawn tried to hold the door closed, while Roberts screamed out of the window to Forte's mother who lived across the street. Forte was able to push his way in and grab Roberts. Dawn ran from the house. As Forte and Roberts were struggling, Forte's brother, Millard, and his mother arrived. Millard Forte wrestled with Forte for the shotgun. During the struggle, the gun discharged and a bullet went into the ceiling of Dawn's bedroom. Roberts and Dawn heard the shot as they fled in Roberts' car to a nearby phone and called police. Reginald Nichols and Tracy Boyd were riding past the house on their bicycles when they saw Roberts' car back quickly out of the driveway. They then saw Forte come out of the house with a shotgun. Forte asked them what they had to do with what had happened. He ordered them to move down the street, then fired one shot into the air. The two men proceeded down the street but Forte fired a shot at them. Nichols suffered a wound to the neck and Boyd suffered wounds to the forehead and thigh. The police arrived and found Forte standing in the doorway of Roberts' home yelling obscenities and saying that the police had no reason to be there. The police entered through the side door and subdued Forte. A search of Roberts' home revealed bullet holes in the ceiling of Dawn's room and in the nearby hallway. Police also -5- recovered a loaded shotgun containing six live rounds and a handgun behind the living room couch. A spent shotgun shell was found in Dawn's bedroom. Another shell was found outside in the street at the end of Roberts' driveway. The following day, Roberts found three spent shotgun shells in between the mattresses of her bed and turned them over to police. Forte was arrested and charged with four counts of felonious assault each with a firearm specification and one count of aggravated burglary with a firearm specification. After a trial, Forte was convicted of four counts of felonious assault and one count of criminal trespass, a lesser included offense of aggravated burglary. Forte was sentenced to a three year term of actual incarceration for the firearm specification. He was also sentenced to concurrent three to fifteen year sentences on the felonious assault counts and a six month sentence for criminal trespass. The sentences for the felonious assault and the criminal trespass were to be served consecutively to the sentence on the firearm specification. This appeal followed. In his first assignment of error, Forte argues that the trial court committed prejudicial error by allowing rebuttal evidence of specific conduct of a defense witness in violation of Evid.R. 608. The assigned error pertains to rebuttal testimony by Patrolman Joselito Sandoval about statements made to him by Millard Forte. Sandoval did not talk about any specific instances of conduct by Millard Forte. His testimony was limited to the contents of an oral statement made to him by Millard Forte. We find that the -6- testimony was not evidence of specific conduct by Millard Forte but was evidence of a prior inconsistent statement by Millard Forte. Millard Forte testified on direct examination that he and his brother Martin Forte were struggling over the shotgun in Dawn's bedroom when it discharged. He also claimed he grabbed the shell that was expelled from the gun and later accidentally dropped it outside in the driveway. Millard Forte denied hearing any other shots. After completing his direct testimony at trial, Millard Forte was cross-examined about his account of the incident. On cross-examination, Forte stated he never made any statements to police about the incident. The following questions were posed to Millard Forte on cross examination: Q: Were you there when the police came? A: Yes. I was at home when the police arrived. I came outside. Q: Did you talk to the police? A: I spoke with one of the policemen. Q: Did you tell him what happened? A: No. I didn't tell him what happened. He asked me was there any place that I could put my brother's clothes. I said yeah, in his car. Q: So he didn't ask you anything that happened beforehand? A: No he didn't. *** Q: He didn't ask you what happened at the house? A: No. *** -7- (Tr. 277-278) In the prosecution's rebuttal case, Sandoval testified Forte did talk to him about the incident. According to Sandoval, Millard Forte told him that he restrained Forte in Dawn's bedroom, allowing Roberts to flee, then left the house. Millard Forte told Sandoval that he was on his way out of the house when he heard a shot from Dawn's bedroom and that he heard three more shots as he continued across the street. Sandoval did not talk about any specific instances of conduct by Millard Forte. His testimony was limited to the contents of the oral statement made to him by Millard Forte. Sandoval's testimony was extrinsic evidence of a prior inconsistent statement made to police by Millard Forte. Under Evid.R. 613(B), extrinsic evidence of a prior inconsistent statement by a witness is admissible if the witness is afforded a prior opportunity to explain or deny the statement and the opposing party is afforded an opportunity to interrogate him thereon. See State v. Bobo (1989), 65 Ohio App.3d 685,693. As set forth above, the record reveals that Millard Forte was given an opportunity to explain or deny the statement and both parties had an opportunity to question him about the statement. We find that Evid. R. 613(B) applies to Millard Forte's statement to police and that extrinsic evidence of the statement was properly admitted. -8- Forte also argues his trial counsel was ineffective by failing to object to the rebuttal testimony. Having concluded the admission of the testimony was not erroneous, we find trial counsel's failure to object to this testimony did not constitute ineffective assistance of counsel. Forte's first assignment of error is overruled. In his second assignment of error, Forte argues that the felonious assault counts involving Boyd and Nichols were allied offenses and that he should have been convicted on only one of the two counts. R.C. 2941.25(A) provides: Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. Forte argues because the injuries to Boyd and Nichols resulted from a single shot, there was no separate animus as to Boyd and Nichols. We disagree. Patrolman David Raynard testified shotgun shells contain as many as 75 pellets which disperse over a wide area upon firing. Forte, an avid hunter, gun collector and marksman was certainly aware of these capabilities when he pointed the shotgun at Boyd and Nichols and fired it. Boyd and Nichols were standing together when the shot was fired. Under the circumstances, he is chargeable with knowledge that both Boyd and Nichols would be hit and injured as a result of the shot fired in their direction. See State v. Phillips (1991), 75 Ohio App.3d 785,790. Because Forte caused harm to two -9- separate victims, he could be convicted and sentenced on two counts of felonious assault. See State v. Gregory (1993), 90 Ohio App.3d 124,129. (Two counts of felonious assault held to be committed with a separate animus where defendant fired several shots at a car known by him to contain two occupants.) Because we find the felonious assault counts involving Boyd and Nichols were not allied offenses of similar import, we overrule Forte's second assignment of error. Judgment affirmed. -10- 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, J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .