COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 669 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ROBERT WHEELER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 25, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-301088 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: KARL R. WETZEL, ESQ. JAMES A. DRAPER, ESQ. TIMOTHY G. DOBECK, ESQ. Cuyahoga County Public Defender Assistant County Prosecutors BY: VALERIE R. ARBIE, ESQ. 8th Floor Justice Center Assistant Public Defender 1200 Ontario Street The Marion Building, Room 307 Cleveland, Ohio 44113 1276 West Third Street Cleveland, Ohio 44113-1569 -2- PATRICIA ANN BLACKMON, J.: Robert Wheeler, defendant-appellant, appeals the trial court's decision finding him guilty of murder with a firearm specification, attempted murder, and having a weapon while under disability and sentencing him accordingly. Wheeler assigns the following four errors for our review: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED AARAN BRABSON TO PRESENT AN IN-COURT IDENTIFICATION WHICH WAS BASED ON A PREVIOUS OUT-OF-COURT IDENTIFICATION THAT WAS OBTAINED IN A SUGGESTIVE MANNER IN VIOLATION OF ROBERT WHEELER'S RIGHTS AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED TESTIMONY ABOUT AARAN BRABSON'S SHIRT AND THE ADMISSION OF THE SHIRT INTO EVIDENCE WHEN IT WAS NOT RELEVANT. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED THE REBUTTAL TESTIMONY OF DIANE PARKINSON. IV. ROBERT WHEELER'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL WHEN HIS CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. 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 July 20, 1993, Aaran Brabson and Kevin Gordon were leaving Mr. C's Convenience Store when Gordon spotted Wheeler and told Brabson to return to the store parking lot. Gordon exited the car and began talking to Wheeler. Gordon and Wheeler got into an angry -3- exchange where upon Gordon hit Wheeler with a beer bottle. Wheeler pulled a gun from his waistband and fired three shots at Gordon. Gordon ran to the car, opened the door, and fell in. Brabson attempted to drive away when Wheeler came to the car and fired two more shots into the car. Gordon was hit by three bullets and later died. One of the bullets passed through Brabson's shirt but did not strike him Brabson described the assailant as a black male, about five- eight or five-nine, weighing 170-175 pounds, with short dreadlocks. Brabson later learned that the assailant was named "Rob", which he reported to the police. On August 31, 1993, Brabson viewed a photo array at the police station. He immediately identified Wheeler as the attacker. Four months later Brabson went to police headquarters to view a lineup. Although the lineup was cancelled when Wheeler refused to participate, Brabson recognized Wheeler as Brabson stood in a nearby holding area. Wheeler was arrested and charged with aggravated murder with felony murder, firearm and aggravated felony specifications, aggravated robbery with firearm and aggravated felony specifications, attempted murder with firearm and aggravated felony specifications, and having a weapon while under disability. At the end of the prosecution's case, the felony-murder specification and the aggravated robbery charge were dismissed. Wheeler was convicted of murder and attempted murder with firearm -4- 1 specifications, and having a weapon while under disability. He was sentenced to consecutive terms of fifteen years to life for murder, fifteen to twenty-five years for attempted murder, and eighteen months to five years for having a weapon while under disability. The first issue raised on appeal is whether Wheeler's in- court identification of Brabson was based on an improperly suggestive out-of-court identification via a photo array. Wheeler argues four of the five pictures in the photo array did not match the description provided by Brabson because they did not show a man with dreadlocks. The fifth photograph was of Brabson with dreadlocks. He argues the suggestive photo array irreparably tainted the Brabson's subsequent in-court identification of Wheeler. In State v. Chapman (May 17, 1990), Cuyahoga App. No. 56945, unreported at 5, the court held identification testimony was properly admitted unless the identification procedure was so impermissibly suggestive that there was a substantial likelihood of irreparable misidentification existed. Our examination of the photos reveals no discernible variation in background color, image size, or clarity which might result in overemphasis of Wheeler's picture. Each of the men pictured had a different hairstyle. However, Cleveland Police Detective Michael O'Malley told Brabson to concentrate on the facial features because things like 1 The having a weapon while under disability charge was tried to the court. -5- hairstyles might change. Although Wheeler argues this comment was unduly suggestive in light of his defense strategy, the detective had no way of knowing that Wheeler's differing hairstyles would play a significant role in his defense. Unquestionably, hairstyles are easily changed and an identification based solely on a defendant's hairstyle would be questionable at best. The detective's comment was entirely proper under the circumstances and was not unduly suggestive. This court has held even if a pretrial identification procedure is impermissibly suggestive, an in-court identification is permissible where the prosecution establishes by clear and convincing evidence that each witness had a reliable independent basis for the identification based on prior independent observa- tions made at the scene of the crime. State v. Broom (April 11, 1991), Cuyahoga App No. 58386, unreported at 8, (citing State v. Hurt (1972), 30 Ohio St.2d 86,89. Brabson testified he viewed Wheeler for three to five minutes; he saw him from less than eight feet away in a well lighted parking lot. Consequently, Brabson had a reliable independent basis for his in-court identification of Wheeler. Although there were inconsistencies in Brabson's description of the attacker's height, Brabson testified that there was no doubt in his mind that Wheeler was the shooter. It was up to the jury to resolve the conflicts in Brabson's testimony and decide whether to believe or disbelieve him. Brabson's first assignment of error is without merit. -6- Wheeler also argues the trial court erred in admitting into evidence the shirt Brabson was wearing when the crime occurred. The state argues the shirt was relevant to the charge of attempted murder because it showed a bullet hole indicating Brabson was nearly hit by the shots fired at Gordon. Wheeler argues the hole in the shirt could have been caused by various other circumstances. Decisions about the admissibility of evidence are within the discretion of the trial court. See Evid.R. 104(A). Absent evidence of an abuse of discretion, such decisions will not be reversed on appeal. As discussed above, the shirt was directly relevant to the charge of attempted murder because it contained a bullet hole that Brabson testified was caused by a bullet fired by Wheeler. The shirt is circumstantial evidence that the bullet nearly missed Brabson. The circumstantial nature of the shirt's evidentiary impact does not reduce its probative value. See State v. Jenks (1991), 61 Ohio St.3d 259,272. The trial court did not err in admitting the shirt into evidence. In his third assignment of error, Wheeler argues that the trial court erred in admitting the rebuttal testimony of Diane Parkinson. According to Parkinson, Wheeler told her he cut his hair after the date of the murder so that he would not resemble his police photo. Wheeler argues he was unfairly surprised by Parkinson's testimony because the state failed to provide him with a copy of the statement during discovery despite a Crim.R. 16 request for any statements made by Wheeler to the police. -7- Under Crim.R. 16(B)(a)(ii), the prosecutor must disclose any written summaries of any oral statements made by the defendant to any law enforcement officer. In this case, the statement was not provided to the defense until the day before Parkinson's testimony. When deciding whether the trial court erred in permitting Parkinson's testimony, our review is governed by an abuse of discretion standard. See State v. DeLeon (1991), 76 Ohio App.3d 68,78. See also Middletown v. Campbell (1990), 69 Ohio App.3d 411,419-420. When determining whether the trial court abused its discretion, we must consider whether the prosecutor's failure to disclose the information was willful, whether advance knowledge of the statement would have helped the accused to prepare his defense, and whether the accused was prejudiced by admission of the statement. Id. In this case, there is no evidence that the prosecutor willfully failed to disclose the statement to the defense. The evidence shows the statement was taken during the investigation of another crime. At the time of discovery, there is no evidence that the prosecutor knew that Wheeler's haircut would be an issue in the case. By all indications, the prosecution did not know that the statement about Wheeler's hairstyle was relevant until Wheeler presented evidence regarding his different hairstyles in court. Because the statement was promptly produced once it was determined to be relevant, the prosecutor's failure to disclose the statement during discovery cannot be found to be willful. -8- We also find no resultant prejudice to Wheeler from the delay. Although he claims he was unfairly surprised by the testimony, Wheeler did not seek a continuance in order to prepare a response. Absent such a request, the trial court could properly determine that Wheeler was prepared to go forward. See State v. Armstead (1993), 85 Ohio App.3d 247,252. In light of Wheeler's willingness to go forward without a continuance and the absence of evidence that the prosecutor willfully withheld the statement, we find the trial court did not abuse its discretion by allowing Parkinson to testify. Wheeler's third assignment of error is overruled. Finally, Wheeler argues that the trial court improperly denied his motion for acquittal under Crim.R. 29 because the state did not present sufficient evidence to convict him of murder and attempted murder. A motion for acquittal under Crim.R. 29 will be denied when, after viewing the evidence in the light most favorable to the state, reasonable minds might fairly find the defendant guilty beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261,263. Murder is defined in R.C. 2903.02 as purposely causing the death of another. Attempted murder is purposeful, knowing conduct which, if successful, would constitute or result in murder. See R.C. 2903.02. Under R.C. 2901.22, a person acts purposely when it is his specific intention to cause a certain result. Our review of the record indicates the state put forth sufficient evidence to support a conviction for murder and attempted murder. The state -9- presented evidence that Wheeler fired three shots at Gordon as he stood outside the car, which was driven by Brabson. After Gordon fell into the car, Wheeler walked over to him and fired two more shots at him. This evidence, if believed was enough to establish a purposeful killing. "[A] person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts." Jenks at 274. Under the circumstances, a reasonable trier of fact could infer that Wheeler's act of firing a gun multiple times at Gordon at close range indicated an intent to kill him. With respect to the attempted murder charge, the state's evidence showed that two of the shots were fired into a closed area (the passenger compartment of the car) where Brabson was sitting. One of the bullets nearly missed Brabson, passing through his shirt. The doctrine of transferred intent is applicable in determining the absence or presence of a purpose to kill in murder convictions. State v. Mullins (1992), 76 Ohio App.3d 633. Under the doctrine of transferred intent, an individual whose intentional attempt to harm one person results in unintended harm to another is held criminally liable for such harm as if he had harmed his intended victim. See Id. at 636. Based upon the evidence presented and the doctrine of transferred intent, the jury could reasonably infer that the bullet that passed through Brabson's shirt was fired with intent to kill him. If one of Wheeler's bullets had struck and killed Brabson, Gordon would have been charged with the murder of Brabson. The fact that Brabson was not hit does not alter the fact that Wheeler fired the shots with an -10- intent to kill but merely indicates that he was unsuccessful in achieving his objective. We also reject Wheeler's argument that Brabson's shirt should have been excluded because the hole in the shirt could have been caused by some non-criminal activity. When evaluating a Crim.R. 29 motion, the evidence must be viewed in the light most favorable to the prosecution. Accepting the state's version of what happened, the state presented evidence upon which reasonable minds could differ as to whether Wheeler murdered Gordon and attempted to murder Brabson. Where reasonable minds can reach different conclusions upon conflicting evidence, it is up to the jury as triers of fact to determine what happened. Jenks at 279. Wheeler's motion for acquittal under Crim.R. 29 was properly denied. Finding no merit to any of Wheeler's assignments of error, we affirm the decision of the trial court. Judgment affirmed. -11- 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. JAMES D. SWEENEY, P.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- .