COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66943 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : RUEBEN HORTON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 23, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 300717 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Claudette Walcott Cuyahoga County Prosecutor 930 Leader Building By: James E. Valentine 526 Superior Avenue Assistant Prosecuting Attorney Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 HARPER, P.J.: Defendant-appellant, Reuben (Rick) Horton, appeals from his conviction for theft by deception, R.C. 2913.02, following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant submits that he is entitled to a new trial because the trial court's alleged prejudicial posture seriously affected his substantial rights, i.e., the fairness and integrity of the judicial proceeding. A careful review of appellant's allegations and the record compels affirmance. Kathy Boggs was introduced to Eugene Wilkins in September 1989 through a prison fellowship program while Wilkins was incarcerated for aggravated murder. The two commenced a relationship via correspondence and telephone conversations with Mrs. Boggs eventually visiting Wilkins approximately five times a month. Mrs. Boggs also provided Wilkins' commissary account with funds. It was during one of Mrs. Boggs' visits to Lucasville that she first saw appellant who was serving time for voluntary manslaughter. Wilkins who knew appellant pointed him out to Mrs. Boggs. Sometime after appellant's release from prison, Mrs. Boggs telephoned him on Wilkins' behalf. She communicated that Wilkins wanted to know if appellant was in contact with a state senator about the recent Lucasville riot. Mrs. Boggs and appellant also spoke about an attorney, Donald Peppers, who was purportedly very successful in obtaining parole for prison inmates. Mrs. Boggs recalled the name of Peppers from a conversation with Wilkins. Since Wilkins had a parole hearing date approaching, appellant convinced Mrs. Boggs to forward a series of certified checks to him with him named as a payee on one check for $500, and Peppers as the payee on the remaining four checks which were to total $5000. According to Mrs. Boggs, it was her understanding that appellant would provide Peppers with the four checks made out to him so that work could commence on Wilkins' parole request. Mrs. Boggs was also under the impression that the $500 for appellant was meant to reimburse him for monies he already paid to Peppers regarding Wilkins' parole. Mrs. Boggs sent all of the checks by certified mail to appellant's mother's address in Warrensville Heights, Ohio. Either appellant or his mother, Lily Horton, signed for them. The checks made payable to Peppers were endorsed by someone who remains unidentified, and then by Mrs. Horton. Mrs. Horton deposited these four checks into her account at National City Bank. Appellant subsequently came into possession of the total amount of these checks, $5000, following Mrs. Horton's withdrawal of the funds. Mrs. Horton's deposits and withdrawals were confirmed by one of the bank's fraud investigators, Christopher Feczko. Mrs. Boggs became suspicious sometime during the summer of 1992 when Wilkins was not paroled and there was no indication that an attorney was working on his behalf. She thereafter succeeded in her attempt to locate Peppers, and visited with him in a law office located in Cleveland. Peppers knew nothing about either Wilkins or appellant, nor did he receive any of the money Mrs. Boggs furnished appellant. Consequently, Peppers was not the endorser on any of the four checks deposited in Mrs. Horton's accounts. Moreover, though Peppers conducted research for a group of attorneys, he was no longer licensed to practice law in the state of Ohio. Mrs. Boggs and Peppers armed with all of the above revelations, investigated further and discovered the name of appellant's parole officer, Gloria Cleveland. They then met with Cleveland in her office where they related how appellant came into possession of Mrs. Boggs' $5500. Cleveland in turn ordered appellant to appear in her office. Appellant responded that Mrs. Boggs is "a white bitch and can afford it" when confronted with the allegations. The preceding events led to appellant's conviction from which he now appeals and assigns the following error for our review: "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT IN ENGAGING IN CONDUCT SO PREJUDICE [sic] TO THE DEFENDANT-APPELLANT'S RIGHTS THAT IT CONSTITUTED PLAIN ERROR SERIOUSLY AFFECTING THE FAIRNESS, INTEGRITY AND PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS. (TRANSCRIPT, PAGES 6-246)." Appellant primarily presents the argument that he was denied a fair trial as a result of the trial court's conduct which he claims 1 was prejudicial toward the defense. Specifically, appellant asserts that the court demonstrated its prejudice through the following acts: (1) the denial of appellant's motion in limine; (2) the expression of comments about state's witness Peppers; (3) 1 Though appellant cites the whole transcript to illustrate the court's attitude, we are only required to review errors specific-ally pointed out by him in his argument. Moreover, appellant submits two evidentiary issues which are better suited for separate assignments of error. See, App.R. 12(A)(2), 16(A)(3). the interruption of defense counsel's cross- examination of state's witness Mrs. Boggs; (4) the exclusion of evidence relating to Peppers' ability to practice law in the state of Ohio; (5) the denial to review a prior statement made by Mrs. Boggs to an investigating officer; (6) the ruling that the privilege between man and wife precluded Mr. Boggs from testifying for the defense in order to impeach Mrs. Boggs; (7) the numerous admonishments of defense counsel. Appellant concedes that it is only necessary for this court to review his claimed errors pursuant to a Crim.R. 52(B) plain error analysis. Plain error is not present unless it is clear that but for the errors, the outcome below would have been otherwise. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 191, citing State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus.; see, State v. Jells (1990), 53 Ohio St.3d 22, 25; State v. Greer (1988), 39 Ohio St.3d 236, 252. In appellant's first complained of instance, the trial court denied appellant's motion in limine which was meant to prevent the introduction of evidence relating to appellant's prior conviction for voluntary manslaughter. The state argued that the fact of appellant's prior conviction was inevitably going to be introduced through the testimony of Mrs. Boggs, Peppers, Cleveland and Wilkins. The introduction was inevitable because Mrs. Boggs and Wilkins were going to have to testify as to how they first observed appellant, i.e., in prison; Mrs. Boggs and Peppers were going to testify as to how they contacted Cleveland to report appellant's alleged wrongdoing; and Cleveland was going to testify regarding the reason for appellant's visit with her, his parole officer, and his statement to her that Mrs. Boggs could afford to pay him the money. In other words, the state saw no other way to explain the events which led to appellant's indictment without commenting on his prior incarceration. A motion in limine is a "precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury." State v. Spahr (1976), 47 Ohio App.2d 221, 224; see, State v. Asman (1989), 63 Ohio App.3d 535. The grant or denial of the motion is within the court's inherent power and discretion to control the proceedings. Spahr, 224. A trial court abuses its discretion when its attitude is arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. Evid.R. 404(B) provides when evidence of other crimes is admissible: "(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The record in the instant case obviously reveals that the state never intended to use appellant's prior conviction to prove he committed theft by deception. The state never mentioned the offense for which he was incarcerated, nor did it expound on the witness' testimony regarding the imprisonment. In fact, the state referred only to appellant's parole, said parole status being used to explain the underlying facts of the case as argued by the state. Evid.R. 404(B) is not implicated under these circumstances. Compare, State v. Spears (1978), 58 Ohio App.2d 11 (construing R.C. 2945.59, the mere assertion of the commission of an unspecified offense with an unspecified degree of culpability, committed at some unstated time in the past, does not fall within the ambit of R.C. 2945.59). Appellant failed to object to any testimony regarding his incarceration notwithstanding the trial court's denial of his motion in limine; we fail to find the presence of plain error. First, the trial court conducted the motion hearing without any signs of bias toward appellant. Second, the strength of the state's evidence refutes appellant's suggestion that the jury would not have found him guilty absent evidence of his prior conviction. Third, Mrs. Boggs appeared and testified at appellant's parole revocation hearing. Defense counsel used the transcript from that hearing in an attempt to impeach Mrs. Boggs. We surmise from defense counsel's cross-examination of Mrs. Boggs that counsel was prepared to reveal appellant's parole status at trial regardless of the ruling on the motion in limine. Finally, appellant intended and did call Wilkins as a witness for the defense. Since Wilkins was serving a life imprisonment term at the time, the jury would no doubt question the origin of Wilkins' and appellant's relationship. The trial court's denial of appellant's motion in limine did not deny appellant a fair trial. Appellant next complains that the trial judge evidenced bias when he made a statement to the jury prior to Peppers' appearance on the stand. The judge informed the jury that he knew Peppers personally from the past, and Peppers was at one time a licensed attorney in Ohio. The judge also stated that Peppers was no longer licensed to practice law, and this fact was somewhat embarrassing to Peppers. Appellant fails to show how these remarks affected the jury's determination of his guilt, and, therefore, how the remarks denied him a fair trial. Appellant also suggests that the trial court's continued interruption of Mrs. Boggs' cross-examination denied him a fair trial. He refers specifically to when the trial judge suspended a line of questioning which dealt with the number of times Mrs. Boggs spoke with appellant on the telephone, and then questioned the witness himself; advised the jury as to how checks are endorsed and negotiated; stated, "we're not going through that again, are we? We don't know who she called, who answered her." As to the first instance during Mrs. Boggs' cross-examination, the record reveals that both Mrs. Boggs and the trial court were confused with defense counsel's line of questioning. Both Mrs. Boggs and the court thought defense counsel was asking how often Mrs. Boggs spoke with Wilkins, not appellant. The trial court merely sought to clarify the line of questioning so as to avoid any confusion on the part of the jury. We fail to see how this clarification prejudiced the defense. For the same reasoning, the trial court's explanation as to how checks are endorsed fails to amount to plain error. With regard to the statement that "we're not going through that again, are we? We don't know who she called, who answered her," this referred to correspondence from the Supreme Court of Ohio which established that there never was an attorney named "Donald Pepper" who was licensed to practice law in the state of Ohio. The same record indicated there was an attorney named "Donald Peppers" who was licensed at one time, but was currently not licensed to practice law. Not only does appellant claim that the trial court improperly made the foregoing statement, but that it improperly disallowed the introduction of the evidence that "Donald Pepper" was never licensed to practice law in Ohio. Appellant submits that the distinction between "Pepper" and Peppers and Mrs. Boggs' knowledge regarding the hiring of an attorney named Pepper were relevant to his defense. Appellant's defense was that Mrs. Boggs knew all along that an attorney named Pepper, without the "s," never existed. Rather, Mrs. Boggs was fully aware that an attorney was not going to be hired with the $5500 provided to appellant, but that appellant was merely holding the money for Wilkins for when Wilkins was released on parole. The payee on the checks, "Donald Pepper," was a name chosen out of thin air. Mrs. Boggs, therefore, was not deceived by appellant's acceptance of the money. However, when Wilkins was not released on parole, Mrs. Boggs wanted her money back from appellant. Luckily for her, there was coincidentally an attorney named Peppers who could confirm that the endorsements on the four checks were forged, thereby allowing Mrs. 2 Boggs to recover the $5000 from the bank. In other words, Mrs. 2 The bank was not liable for reimbursing Mrs. Boggs with the $500 paid on the check made payable to appellant since it was properly endorsed by appellant and Mrs. Horton. Boggs subsequently identified the once non-existent attorney named Pepper as Peppers so that she could recover the funds. Defense counsel continuously stressed that Mrs. Boggs wrote the checks out to "Pepper," and repeatedly returned to the relevance of the missing "s" to confirm the defense's theory. Mrs. Boggs testified that she learned of attorney "Pepper" through a conversation with appellant, and never met the attorney before providing the four checks with "Pepper" as the payee to appellant. Mrs. Boggs explained, therefore, that the missing "s" was understandable under the circumstances. Whether a "Donald Pepper" was ever licensed to practice law in the state of Ohio, as evidenced by the communication from the Supreme Court of Ohio, held no tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Since the defense argued that "Donald Pepper" was a fictional entity, the entity's ability to practice law held no relevance to the case. Moreover, since Mrs. Boggs allegedly never meant to hire an attorney, the issue as to whether "Pepper" was or was not licensed to practice law is not relevant to the defense. This evidence was, therefore, properly withheld by the trial court under Evid.R. 401. Otherwise, the trial court's statement, "we're not going through that again, ***" and its interference with defense counsel's continued attachment of relevance to the missing "s," demonstrated the court's ability to control the form of questions. See, Evid.R. 611(A); State v. Shields (1984), 15 Ohio App.3d 112. Appellant once again fails to demonstrate how the outcome of the proceedings was prejudiced by the court's participation in the proceedings. Appellant's defense was expressly communicated to the jury throughout trial, including in defense counsel's closing argument. The next complained of instance of alleged prejudicial impact is when the trial court denied defense counsel the opportunity to view a statement made to Detective Michael McKeon from the city of Warrensville Heights Police Department by Mrs. Boggs. Defense counsel asked to review the statement following the testimony of the detective that Mrs. Boggs provided a statement. Defense counsel previously failed to ask Mrs. Boggs during her cross- examination if she gave a statement to the detective. A review of the record reveals that the trial court and defense counsel engaged in a lengthy side-bar discussion with regard to whether Mrs. Boggs' statement should be furnished to defense counsel. The trial court first correctly advised that the appropriate time for focusing on the statement was during Mrs. Boggs' cross-examination. See, Evid.R. 613. The court then offered to allow defense counsel the opportunity to review the statement in the interest of justice. The court requested that counsel merely admit that she failed to ask the appropriate question at the appropriate time. However, counsel admitted that she was not concerned with questioning Mrs. Boggs about any statement at the time of her cross-examination. She also expressed that "you can overrule my motion," and "if I can't do it, that is fine." Under these circumstances, given the opportunity provided to defense counsel to view the statement, and counsel's rejection of the opportunity, we fail to find the trial court committed any act which amounts to an abuse of discretion on this matter. The trial court, during the side-bar discussion pertaining to Mrs. Boggs' statement to Det. McKeon, questioned defense counsel's knowledge of judicial proceedings, particularly her ability to know when to question a witness about a certain subject, i.e., the prior statement. It was also during this side-bar conference that the trial court suggested that defense counsel's feelings of superiority with regard to her lawyering abilities precluded her from admitting that she failed to adequately cross-examine Mrs. Boggs. The trial court furthermore verbalized its frustration with defense counsel's lengthy and what it believed to be irrelevant cross-examination of Mrs. Boggs at this time. In an earlier side- bar discussion, the trial court referred to either Mrs. Boggs or defense counsel as "this lady," and counsel suggests the reference evidences the court's prejudicial attitude. We reject appellant's proposition that these comments made to defense counsel during side-bar discussions, absent the jury, denied him a fair trial. See, State v. Armour (Dec. 19, 1991), Cuyahoga App. No. 59064, unreported (dissent distinguishable). Appellant also takes issue with the trial court's admon- ishment of defense counsel in the presence of the jury. After the jury returned to the courtroom following the close of testimony and the court's request that all be seated and quiet, defense counsel continued to speak with appellant. The court asked defense counsel what was wrong with her, and rebuked that defense counsel should not be "smart" or "answer back" when counsel responded that she was unaware she could not converse with her client. In State v. Wade (1978), 53 Ohio St.2d 182, paragraph two of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157, the court stated: "Challenged statements and actions of the trial judge in a criminal case will not justify a reversal of the conviction, where the defendant has failed in light of the circumstances under which the incidents occurred to demonstrate prejudice." The trial court's remarks to defense counsel in the presence of the jury may have been embarrassing or even discourteous. However, this court fails to find that the comments either caused manifest injustice or had a high probability of changing the outcome of the trial. Hence, we do not find the existence of plain error. See, Armour. The last issue presented by appellant for our review is whether the trial court erred in disallowing the defense to call Mr. Boggs as a witness so as to impeach his wife's credibility. Mrs. Boggs testified that her husband was fully aware of the extent of her relationship with Wilkins, including the amount of money she spent as a result of accepting Wilkins' collect telephone calls. It appears that appellant desired to elicit testimony from Mr. Boggs that Mrs. Boggs failed to reveal the extent of her relationship with Wilkins with the hope of attacking her credibility. The trial court refused appellant the opportunity to call Mr. Boggs as a witness pursuant to R.C. 2317.02. R.C. 2317.02 reads as follows in relevant part: "The following persons shall not testify in certain respects: "*** "(D) Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness; ***" In Diehl v. Wilmot Castle Co. (1971), 26 Ohio St.2d 249, the Supreme Court of Ohio held that the privilege accorded to a husband and wife under the provisions of R.C. 2317.02 is personal to the husband and wife and may not be invoked by a third party. Id., paragraph three of the syllabus. Moreover, the court noted the following language contained in Sessions v. Trevitt (1883), 39 Ohio St. 259, 267: "'Communications between husband and wife are not excluded on the ground of their common interest, or for the protection of those against whom they may testify, but because public policy requires that they shall not be allowed to betray the trust and confidence which are essential to the happiness of the married state.'" Diehl, 252. Applying the foregoing to the present case, the trial court as a third party was not in a position to invoke any privilege which may have existed between Mrs. Boggs and Mr. Boggs. Cf. Trammel v. United States (1980), 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (construing Fed.R.Evid. 501, a witness-spouse alone has a privilege to refuse to testify adversely in a criminal proceeding). Though the court opined that Mr. Boggs may have objected given the opportunity, Mr. Boggs never had such an opportunity. We, however, fail to recognize the disallowance of Mr. Boggs as a witness amounted to plain error. First, Mrs. Boggs testified that she told her husband about her magnitude of her relationship with Wilkins. She thus testified regarding an arguably privileged communication to her husband. Second, even if Mr. Boggs were to testify that Mrs. Boggs never told him the full extent of her relationship, we fail to identify that this "impeachment" would have a substantial likelihood of altering the outcome of trial. Mr. Boggs was at least partially aware of Mrs. Boggs' relationship with Wilkins; the fact that she may not have told him the full extent is not so surprising given her relationship with Wilkins in the first place. In conclusion, a review of the record under a plain error analysis fails to disclose that any of the trial court's rulings or comments so prejudiced the defense to the point where defendant was denied a fair trial. We cannot say beyond a reasonable doubt that the outcome of the trial would have been any different absent these comments and rulings given the strength of the state's case. Appellant's assignment of error is overruled. Judgment affirmed. 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. DONALD C. NUGENT, J., JAMES M. PORTER, J. CONCUR. PRESIDING JUDGE SARA J. HARPER 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 journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .