COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67360 and 67361 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LEE E. BROADNAX, JR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-298052 AND CR-300892 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: CRAIG T. WEINTRAUB (#0040095) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: KEVIN M. CAFFERKEY (#0031470) 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 Also listed: LEE E. BROADNAX JR. (#Z00067360 and #Z00067361) Serial #A-291-629 Lorain Corr. Inst. 2075 S. Avon-Belden Rd. Grafton, OH 44044 SPELLACY, P.J.: Defendant-appellant Lee Broadnax appeals from convictions in CR-298052 for burglary, in violation of R.C. 2911.12, and in CR- 300892 for two counts of aggravated robbery, in violation of R.C. 2911.01, with a firearm specification and a violence specification. Broadnax raises six assignments of error: I. THE TRIAL COURT ERRED BY ALLOWING THE VICTIMS TO TESTIFY BECAUSE THE PRETRIAL IDENTIFICATION PROCEDURE WAS SO SUGGESTIVE IT GAVE RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. II. THE TRIAL COURT ERRED BY ALLOWING THE PHOTO ARRAY OF MUG SHOTS TO BE SEEN BY THE JURY BECAUSE THE MUGSHOTS INFER THE APPELLANT HAD A PRIOR RECORD. III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR ACQUITTAL UNDER CRIMINAL RULE 29(A) AS THIS CONVICTION IS NOT SUPPORTED BY SUFFI- CIENT EVIDENCE AND IS CONTRARY TO (SIC). IV. APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. V. THE PROSECUTOR'S MISCONDUCT VIOLATED THE APPELLANT'S CONSTITUTIONAL RIGHTS BY TELLING THE JURY DURING HIS OPENING STATEMENT THE APPELLANT HAS A PRIOR CRIMINAL RECORD. VI. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S TIMELY MOTION TO WITHDRAW HIS GUILTY PLEA. I. A. CR-298052 In CR-298052, Broadnax was indicted for aggravated burglary, in violation of R.C. 2911.11, with an aggravated felony - 4 - 4 specification and a violence specification; aggravated burglary, in violation of R.C. 2911.11, with an aggravated felony specification and two violence specifications; and felonious assault, in violation of R.C. 2911.03, with an aggravated felony specification and two felony specifications. Broadnax entered a plea of guilty after the first charge was amended to burglary with no specifications and the remaining charges were nolle prossed. During the guilty plea hearing the following exchange took place between the trial court and the victim: THE COURT: All right. Let me hear from her now. MR. CAINE [Defense Counsel]: M i s s Williams? THE COURT: Miss Williams, is this plea arrangement acceptable to you, ma'am? MS. WILLIAMS: Yes. THE COURT: All right. Very Well. ***. MR. CAINE: Your Honor? THE COURT: Yes? MR. CAINE: Is it also your desire, Miss Williams, that he be put on a term of probation as opposed to incarceration? MS. WILLIAMS: Yes. THE COURT: All right. I can go along with that. MR. CAINE: Thank you. (Tr. 4). - 5 - 5 Before accepting the guilty plea, the trial court informed Broadnax that: THE COURT: *** Now, as amended, this is a charge of burglary, in violation of Revised Code Section 2911.12, subsection (A)(1). It's an aggra- vated felony of the second degree, for which the Court could sentence you to serve three, four, five, six, seven, up to eight years in prison on the minimum side, and the minimum could be imposed a period of actual incar- ceration, up to fifteen years on the maximum side. Also, up to a $7500 fine could be levied. Knowing the possible consequences of your plea, how do you plead to the first count of the indictment in CR 298052, burglary, an aggravated felony of the second degree? THE DEFENDANT: How do I plead? THE COURT: Yes, sir. THE DEFENDANT: Guilty. (Tr. 10-11). Before sentencing, Broadnax moved to withdraw his plea. After a hearing, where Broadnax's trial counsel argued that Broadnax had thought that he was pleading guilty to breaking and entering instead of burglary, the trial court denied Broadnax's motion and sentenced him to a term of three to fifteen years. B. CR-300892 In CR-300892, a jury trial was held where the following evidence was adduced: - 6 - 6 On October 20, 1992, a man entered the small store run by Leon Walker. The man declined an offer of assistance from Leon's thirteen-year-old grandson, Steven Walker, and began browsing, slowly working his way towards Leon, who was in the back of the store. Several minutes later, a masked man holding a handgun entered the store and the man who had first entered the store pulled out a handgun. The masked man made Steven lie on the floor and took money from a cash register behind a counter. Meanwhile, the man who had first entered the store pointed his handgun at Leon and demanded money from him; Leon complied. The masked man and the man who had first entered the store then left through the back door. On the way out, the man who had first entered the store fired into the air. Steven testified that when he offered assistance to the man who had first entered the store, he and the man were seven to ten inches apart. Leon testified that the man who had first entered the store was approximately three inches away when he demanded money. Cleveland Heights Detective Vernon Burt testified that when he interviewed Leon and Steven several days after the robbery they described the man who had first entered the store as being a medium-complexioned black man with a thin mustache, standing approximately five feet seven inches tall and weighing one hundred forty to one hundred forty-five pounds. Detective Burt further testified that Leon thought that the masked man might have been a - 7 - 7 former employee named Jessie Lee Smith. Later, Detective Burt learned that Jessie Lee Smith lived at an apartment number two on East 105th street in Cleveland, Ohio. In June 1993, after receiving information that Broadnax was one of the suspects, Detective Burt obtained a black-and-white photograph of Broadnax and placing it in a photographic-array folder with the black-and-white photographs of four other men. Detective Burt then showed the photographic-array folder, which displayed only the busts of the men, to Leon and Steven. Detective Burt testified that he conducted the line-ups separately and that both Leon and Steven chose Broadnax's photograph. Detective Burt testified that Leon chose Broadnax's photograph almost immediately and that Leon was one hundred percent certain that Broadnax was the man who had first entered the store. Detective Burt testified that Steven chose Broadnax's photograph within ten to fifteen seconds and stated that Steven was sure Broadnax was the man who had first entered the store. Leon testified that he chose Broadnax's photograph within seconds and that he had no doubt that Broadnax was the man who had entered the store first. Steven testified that he chose Broadnax's photograph within three to four seconds and that he had no doubt that Broadnax was the man who had first entered the store. Nicole Smith, Broadnax's fiancee, testified that Broadnax was babysitting at the time of the robbery. Smith further testified that her brother, Jessie Lee Smith, used to work at Leon's store. - 8 - 8 Broadnax's sister, who lives with Smith, also testified that Broadnax was babysitting at the time of the robbery. She went on to testify that Broadnax and Jessie Lee Smith had lifted weights together and that Broadnax lived off and on at her apartment on East 105th Street. All the men in the photographs have facial hair. Two men have only mustaches, one man has a relatively heavy beard, and two men, one of whom is Broadnax, have mustaches and light beards. Broadnax and one of the other men appear to have light skin, although the two photographs are overexposed. Broadnax's photograph and the photograph of one of the other men have height charts showing Broadnax is sixty-nine inches tall and the other man is sixty-six inches tall. II. In his first assignment of error, Broadnax contends the trial court erred when it admitted testimony by Leon Walker and Steve Walker because the photographic-identification procedure was impermissibly suggestive. "Convictions based on eyewitness identification will be set aside only if the identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. Butler (1994), 97 Ohio App.3d 322, 325, citing Simmons v. United States (1968), 390 U.S. 377, 384. An out-of-court photographic line-up does not render identification testimony inadmissible unless the photographic line- - 9 - 9 up was unnecessarily suggestive and the identification is unreliable under all the circumstances. Neil v. Biggers (1972), 409 U.S. 188, Manson v. Brathwaite (1977), 432 U.S. 98. Here, the photographic line-up was not unnecessarily suggestive. Broadnax argues the line-up was unnecessarily suggestive because some of the photographs contain dates indicating they are decades old. Detective Burt, however, testified that the photographs were placed in a photographic-array folder that concealed the numbers on the photographs and revealed only the busts of the men. Broadnax also argues that the line-up was unnecessarily suggestive because some of the photographs are of men wearing 1970's-type clothing; his photograph shows him with a thin mustache while the other men in the photographs have thick mustaches; his photograph has a height chart revealing he is five feet eight inches tall and the only other photograph with a height chart shows a man five feet six inches tall; and he is the only light-skinned man. Reviewing the photographs, we find that they are not unnecessarily suggestive. The clothing and facial hair of the other men are not so distinctive as to distinguish them from Broadnax. Nor do the height charts or shade of skin color distinguish Broadnax from the other men. Finally, Broadnax argues the line-up was unnecessarily suggestive because Leon and Steven probably believed the suspect was in the line-up. Knowledge that the suspect is in a line-up, however, does not render a line-up - 10 - unnecessarily suggestive. State v. Stamper (1986), 33 Ohio App.3d 104, 107. Even if we were to find the line-up unnecessarily suggestive, we would find the identification reliable. Manson v. Brathwaite (1977), 432 U.S. 98, 115, held that when determining whether under the 'totality of the circumstances' the identification was reliable even though the *** procedure was suggestive" the factors to consider include: [T]he opportunity of the witness to view the criminal at the time of the crime, the wit- ness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the sugges- tive identification itself. Here, both Leon and Steven had an opportunity to view the suspect with a high degree of attention. Their description of Broadnax was highly accurate and they were both certain of the identification. Weighing these factors against the length of time between the robbery and the line-up and any suggestiveness with the line-up procedure, we find the identification reliable. Accordingly, Broadnax's first assignment of error is not well taken. III. In his second assignment of error, Broadnax contends the trial court erred when it allowed the jury to see his photograph because - 11 - it allowed the jury to infer that he had prior criminal involve- ment. Photographs from police files are inadmissible where they provide the jury with a reasonable inference that the defendant had prior criminal involvement. State v. Breedlove (1970), 26 Ohio St.2d 178, paragraph two of the syllabus. Removal of identifica- tion numbers from mug shots, however, can remove this inference. State v. Wilkinson (1971), 26 Ohio St.2d 185, 187. This is true even when the parallel lines of a height chart are visible in the background. State v. Carney (1990), 67 Ohio App.3d 736, 739. We find no substantial difference between removing identification numbers by cropping a mug shot and placing an exhibit sticker on it. Accordingly, Broadnax's second assignment of error is not well taken. IV. In his third assignment of error, Broadnax contends the trial court erred when it denied his motion for acquittal under Crim.R. 29(A). Under Crim.R. 29(A), "[t]he court *** after the evidence on either side is closed, shall order the entry of a judgment of acquittal on one or more offenses charged in the indictment *** if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not order an entry of acquittal under Crim.R. 29(A) where "*** the evidence is such that - 12 - 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.2d 261, syllabus. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Ohio Supreme Court held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any ration- al trier of fact could have found the essen- tial elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Broadnax argues that the evidence was insufficient to demonstrate that he was the man who first entered the store. We disagree. Reviewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that Broadnax was the man who first entered the store. Accordingly, Broadnax's third assignment of error is not well taken. V. In his fourth assignment of error, Broadnax contends his conviction in CR-300892 was against the manifest weight of the evidence. - 13 - "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. When determining whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: *** the entire record, weighs the evidence and all reasonable inferences, considers the cre- dibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- fest miscarriage of justice that the convic- tion must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. A reviewing court's "discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. Broadnax argues that the jury's conclusion that he was the man who entered the store first is against the manifest weight of the evidence. We disagree. Reviewing the record, we conclude that the jury could properly find that Broadnax was the man who first entered the store. Accordingly, Broadnax's fourth assignment of error is not well taken. VI. In his fifth assignment of error, Broadnax contends prose- cutorial misconduct prevented him from having a fair trial. - 14 - A conviction will not be reversed because of a prosecutor's conduct unless the conduct deprives the defendant of a fair trial. State v. Loza (1994), 71 Ohio St.3d 61, 78; State v. Keenan (1993), 66 Ohio St.3d 402, 405. Misconduct, if it exists, is evaluated within the context of the entire trial. Keenan, 66 Ohio St.3d at 410. Broadnax argues that the prosecutor committed misconduct by implying that he had a criminal record during opening statement, using his mug shot during the trial, and implying that he is violent and using facts not in the record during closing argument. During opening statement the prosecutor stated: MR. WEINTRAUB: Information was provided about a suspect. The detective received a suspect's name, address and physical description. Based upon that information that he received on June the 7th, 1993, Detective Burt obtained a photograph. So he set out to see if that person had a criminal record -- MR. BUTLER: Objection. THE COURT: Overruled. MR. WEINTRAUB: --and whatever he could find. And he found a photograph. When he obtained that photograph, he selected four other photographs of individuals that looked similar to this male. (Tr. 99-100). During closing argument the prosecutor stated: - 15 - He then states that why didn't the State of Ohio bring in the informant? Why didn't the State of Ohio bring in the detective? It is customary practice not to bring in an informant to review the identity in person. The informant is confidential. There is no need to bring in the informant. That puts som- ebody else at stake again. Give me a break. (Tr. 299-300). The prosecutor also stated that: Jessie Lee Smith, the work out buddy, he works out with Lee Broadnax. His own sister said that. You want to talk about a greater coincidence? The tip, the initial tip, Mr. Walker first said he thought Jessie Lee Smith, J.J., might have been involved in this. Then the Defendant goes out to East 105th. Who stays at East 105th? The Defendant. MR. BUTLER: Objection, Judge. There was never ever any proof that he lived anywhere. MR. WEINTRAUB: He stays there. That is what I just said. THE COURT: Sustained. Remember that the closing argument is not evidence. (Tr. 302). The prosecutor's use of Broadnax's mug shot and the prosecu- tor's statements during closing argument were proper and do not constitute prosecutorial misconduct. The prosecutor's reference to Broadnax's criminal record during opening statement, however, was clearly improper and constituted prosecutorial misconduct. We do not condone such behavior. Reviewing this misconduct within the - 16 - context of the entire trial, however, we find that Broadnax was not denied a fair trial. Accordingly, Broadnax's fifth assignment of error is not well taken. VII. In his sixth assignment of error, Broadnax contends the trial court erred when it denied his motion to withdraw his guilty plea in CR-298052. Crim.R. 32.1 provides: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspend- ed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. Although a motion to withdraw guilty pleas before sentencing should be "freely and liberally granted," no absolute right to withdraw a guilty plea exists. State v. Xie (1992), 62 Ohio St.3d 521, 527. When confronted with a motion to withdraw a guilty plea before sentencing, a trial court must hold a hearing to determine whether a reasonable and legitimate basis for withdrawal of the plea exists. Id. Broadnax failed to set forth a reasonable or legitimate basis for the withdrawal of his plea. Although Broadnax now argues that he pleaded guilty based on the understanding that he would receive probation, at his hearing Broadnax only argued that he had thought he was pleading guilty to breaking and entering and not burglary. In fact, at the time he filed his motion - 17 - Broadnax had not been sentenced. We find the trial court did not abuse its discretion in denying Broadnax's motion. Accordingly, Broadnax's sixth assignment of error is not well taken. Judgment affirmed. - 18 - 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. PATRICIA BLACKMON, J. and TERRENCE J. O'DONNELL, J., CONCUR. LEO M. SPELLACY PRESIDING 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 journalization, at which time .