COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67383 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RICKY FREEMAN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-302101 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD A. NEFF, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 - 3 - O'DONNELL, J.: Appellant Ricky Freeman appeals his convictions for aggravated robbery, felonious assault, and three counts of kidnapping arising out of his involvement in a robbery and shooting which took place on September 17, 1993, at the Hot Sauce Williams Restaurant located at 12310 Superior Avenue, Cleveland, Ohio. Around two o'clock in the morning, Freeman and John Stallworth, with guns drawn and their faces covered with bandannas, entered the Hot Sauce Williams Restaurant through the back door and came through a kitchen hallway to the cash register. Michael Wilson, an employee and eyewitness, recognized appellant because he had seen him in the restaurant drinking a can of beer about fifteen minutes prior to the robbery and had also seen him in the restaurant on a previous occasion. (T. 92, 93, 94, 95) Once inside the restaurant, Stallworth held employee Maria Tillman by the arm at gunpoint, while appellant pointed a gun at Wilson and another employee, Barry Roberts, and ordered them to get on the floor as he tried to open the cash register. Mr. Williams, the owner, heard loud voices cussing and demanding employees to open the cash register, so he came out of his office carrying his Smith and Wesson .38 Special revolver and began arguing with the two suspects. (T. 202, 206) Stallworth then shot Williams in the right upper arm and right hip area, and - 4 - Williams fired five shots at appellant and Stallworth, who ran out the back door of the restaurant without any money. (T. 210, 211) Williams could not identify either suspect because of the bandannas they wore, but he did think he may have hit one of them. (T. 208, 209) Around two o'clock in the morning, Officers Thomas Lett and Hillary Cutnik received a radio broadcast informing them of the Hot Sauce Williams robbery and they began to scan the area for suspects. Ten to fifteen minutes later, they received a second broadcast of a male shot and responded to an address given by the caller, 10537 Lee Road, appellant's home. The officers questioned appellant, who had suffered a gunshot wound to the right shoulder, entering from the back and exiting in the front. Appellant stated he had been shot in a "gang beef" at E. 93rd and Hough Avenue and reluctantly gave some additional details about the incident. (T. 290, 291) Officers Lett and Cutnik notified EMS, who transported appellant to Mt. Sinai Hospital for treatment of his gunshot wound. At trial, Officer Lett testified that if appellant had been shot at E. 93rd and Hough Avenue, he would have passed Mt. Sinai Hospital and the Veterans Administration Hospital to reach his home at 105th and Lee Road where officers found him in response to the radio broadcast. He further testified an individual could walk from Hot Sauce Williams Restaurant to appellant's home in about ten to fifteen minutes. Finally, Officer Lett testified - 5 - that he received no broadcast calls about a shooting or gunshots at E. 93rd and Hough Avenue, and that investigation revealed no evidence of a shooting at that location. In response to a police request to all local hospitals to advise of persons presenting for gunshot wounds, Mt. Sinai Hospital informed police officers at Hot Sauce Williams that two suspects may be at the hospital. At that point, police took Wilson to Mt. Sinai Hospital where he recognized the clothes and identified both appellant and John Stallworth, who had been transported to the hospital by his mother, Mabel Stallworth, for treatment of a gunshot wound to his right foot. At trial, Charles Lanier, the only defense witness, testified that he and appellant were at the International bar on 112th and Superior from ten o'clock in the evening until two fifteen in the morning and that five men jumped them around 93rd and Hough, where one of the assailants shot appellant. (T. 396, 397, 398, 399, 400, 401, 402, 403) Lanier testified they ran right past Mt. Sinai Hospital and the Veterans Administration Hospital on their way to appellant's home and that the assailants allegedly chased Lanier and appellant for ten blocks, continually shooting at them. (T. 404, 405) However, Lanier could not identify the approximate ages, appearances, or clothing of any of the five assailants. On May 2, 1994, a jury returned a verdict finding appellant guilty and the trial judge sentenced him to ten to twenty five - 6 - years imprisonment on count one and concurrent terms of six to fifteen years on counts two, three, four, and five to be consecutive with the sentence on count one. Appellant raises eight assignments of error for our review. I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED IDENTIFICATION EVIDENCE TO BE OFFERED IN THIS CASE WHICH WAS THE RESULT OF UNCONSTITUTIONAL IDENTIFICATION PROCEDURES. Appellant argues the one-on-one confrontation, or "cold stand" identification procedure, used by police was unconstitutional because prior to the identification, police told Wilson that suspects may be at Mt. Sinai Hospital. The State claims that Wilson's identification of appellant was constitutional because it was necessary, reliable, and not unduly suggestive. The issue for this court, then, is whether the police procedures utilized in Wilson's identification of appellant were unconstitutionally suggestive. A cold stand, or one-on-one show-up identification, may be suggestive under certain circumstances; however it is impermissible only where there is a substantial likelihood of misidentification. See State v. Madison (1980), 64 Ohio St.2d 322, 331-332; Neil v. Biggers (1972), 409 U.S. 188. In this case, Wilson recognized appellant immediately when appellant came into the restaurant because Wilson had seen him in the restaurant on two previous occasions, including the night of - 7 - the robbery about fifteen minutes before the robbery, during which Wilson had opportunity to observe appellant. Approximately twenty five minutes after the robbery, police took Wilson to Mt. Sinai Hospital where Wilson identified appellant and Stallworth. Based on these circumstances, we conclude that there was not a substantial likelihood of misidentification because prior independent bases for the identification existed and it occurred a short time after the robbery. This assignment of error is without merit and is overruled. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND HIS CONSTITUTIONAL RIGHT TO CROSS-EXAMINATION WHEN THE COURT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE MICHAEL WILSON CONCERNING A PRIOR INCONSISTENT STATEMENT. Appellant claims that, pursuant to Evid.R. 613(B), defense counsel should have been allowed to cross-examine Michael Wilson concerning the report of a defense investigator which the defense believes is a prior inconsistent statement of Wilson. The State argues the written document that defense counsel offered as a prior inconsistent statement was not properly identified or authenticated as Wilson's statement, and the State further argues that if the court had permitted cross-examination on this issue, the outcome of the case would have been the same. The issue for this court, then, is whether or not defense counsel should have been allowed to cross-examine Michael Wilson - 8 - concerning a document which defense counsel purports to be a prior inconsistent statement. We begin our analysis with Evid.R. 613(B), which deals with prior statements of witnesses and states in relevant part: "(B) *** Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. ***" The court in State v. Theuring (1988), 46 Ohio App.3d 152, held: "2. When extrinsic evidence of a prior inconsistent statement is offered into evidence pursuant to Evid.R. 613(B), a foundation must be established through direct or cross-examination in which: (1) the witness is presented with the former statement; (2) the witness is asked whether he made the statement; (3) the witness is given an opportunity to admit, deny or explain the statement; and (4) the opposing party is given an opportunity to interrogate the witness on the inconsistent statement." In this case, defense counsel did not provide a copy of the statement to the State prior to trial, nor did the witness have an opportunity to review it, identify it, or explain it. Clearly, defense counsel did not lay a proper foundation for use of the document at trial, and the court properly refused to allow defense counsel to cross-examine Wilson concerning the document. Accordingly, this assignment of error is without merit and is overruled. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A RIGHT TO PRESENT A DEFENSE WHEN THE COURT WOULD NOT ORDER THAT - 9 - THE PROSECUTOR PRODUCE PHOTOGRAPHS WHICH WERE USED IN THE IDENTIFICATION PROCEDURE. Appellant argues that under Crim.R. 16(B)(1)(c), the court improperly denied defense counsel's request for production of the photographic display used by police to identify appellant. The State claims the purpose of showing the photographs to Wilson was confirmation of his prior identification of appellant, the photographs were not presented at trial, and the photographs were not available to turn over to the defense. The issue for this court, then, is whether the court should have ordered the prosecutor to produce the photographic display used by police to identify appellant. We begin our analysis of this issue with Crim.R. 16(B)(1)(c), which deals with discovery information subject to disclosure, and states in relevant part: "(c) Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph *** photographs *** or copies or portions thereof, *** within the control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence in the trial ***." The court in State v. Johnston (1988), 39 Ohio St.3d 48, considered this issue and held in its syllabus: "5. In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies - 10 - regardless of whether the evidence is specifically, generally or not at all requested by the defense. (United States v. Bagley [1984], 473 U.S. 667, followed.)" In this case, Wilson's in-court identification is based on the prior identification at the hospital and the opportunities Wilson had to observe appellant at the restaurant on two occasions before the shooting. Further, appellant failed to show the photos would have been material to his defense. Since the photos were not used by the State at trial and because Wilson's identification of appellant is based on two prior incidents, both at Hot Sauce Williams Restaurant, appellant has failed to show there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Accordingly, this assignment of error is not well taken and is overruled. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED MICHAEL WILSON TO READ TO THE JURY HIS STATEMENT THAT HE GAVE TO THE POLICE. Appellant claims the trial court improperly permitted Wilson to read portions of his typewritten statement to police during re-direct examination because this testimony constituted hearsay evidence. The State believes that since defense counsel attempted to demonstrate inconsistencies between Wilson's direct examination - 11 - testimony at trial and his statement to police, rehabilitation of this witness was proper. The issue for this court, then, is whether or not the trial court properly allowed Wilson to read portions of his statement on redirect examination. We are directed to Evid.R. 801(D), which deals with statements given by a witness prior to trial testimony. In relevant part, the rule states: "A statement is not hearsay if: "(1) *** The declarant testifies at the trial *** subject to cross-examination concerning the statement, and the statement is *** (b) *** offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ***." The record in this case reveals defense counsel cross- examined Wilson about inconsistencies between a statement he made previously to police and his in-court testimony, and demonstrated that Wilson confused the color of the bandannas worn by the robbers and described their clothes differently. Thus, we conclude Evid.R. 801(D) permits rehabilitation of a witness whose credibility has been attacked and the trial court properly permitted the State to rehabilitate Wilson's credibility. Our conclusion is in accordance with other decisions of this state. See Holtz v. Dick (1884), 42 Ohio St. 23; State v. Smith (1986), 34 Ohio App.3d 180, 191; State v. Bock (1984), 16 Ohio App.3d 146. This assignment of error has no merit and is therefore overruled. - 12 - V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT ALLOW EXAMINATION OF REPORTS OF POLICE OFFICERS. Appellant claims that Crim.R. 16(B)(1)(g) permits defense counsel to inspect Officer Thomas Lett's report. The State argues that the information sought by defense counsel is the duty log of the officer which is not properly discoverable and the request for inspection was not timely made. Further, the State argues that defense counsel is not entitled to inspect material which an officer does not use while testifying. The issue for this court, then, is whether defense counsel was entitled to an in camera inspection of the document prepared by Officer Lett. We begin by attempting to clarify what it is that defense counsel seeks pursuant to Civ.R. 16(B)(1)(g). At trial, during the cross-examination of Officer Lett, defense counsel moved for an in camera inspection of Officer Lett's statement. (T. 322). The portions of a police report which recite matters beyond the witness' personal observations, such as notes regarding the officer's investigative decisions and interpretations, are privileged and excluded from discovery under Crim.R. 16(B)(2). See State v. Jenkins (1984), 15 Ohio St.3d 164. Further, the court in State v. Carballo (October 16, 1989), County App. No. CA88-02-006, unreported, found that a police officers "original - 13 - log" was not discoverable under Crim.R. 16 and that no rights of the appellant were infringed by the nondisclosure of that log. In this case, Officer Lett testified that he prepared a duty report to reflect his actions in connection with this investigation, but that other officers actually prepared the report regarding this investigation. As such, Officer Lett's duty log was not discoverable under Crim.R. 16 and this assignment of error is not well taken. VI. DEFENDANT WAS DENIED A FAIR TRIAL WHEN HEARSAY EVIDENCE WAS OFFERED AND INTRODUCED AND POLICE OFFICERS WERE PERMITTED TO TESTIFY CONCERNING THE GUILT OF THE DEFENDANT. Appellant argues that the testimony of Officer Raynard and Officer Lett concerning the results of their investigation constituted prejudicial hearsay. The State claims Officer Lett's testimony simply described police investigation and defense counsel's failure to object or move to strike waived any claim that the evidence was inadmissable. The issue for this court, then, is whether or not the trial court properly permitted the testimony of these police officers. At trial, Officer Lett testified on recross-examination in response to a question of defense counsel that not everything he learned from his investigation was consistent with what appellant had told him. Defense counsel failed to object or move to strike this testimony. - 14 - Now, appellant objects to this testimony elicited in response to defense counsel's own questions. Clearly, the State has not participated in generating this testimony nor acted to prejudice appellant with it. Since there was no objection at the time of trial, we cannot consider error on appeal not raised in the trial court. See State v. Nicholas (1993), 66 Ohio St.3d 431. And since it was generated by actions of defense counsel, we would not presume to interfere with the trial strategy of counsel by entertaining the notion that defense counsel would create error for appellant on appeal. Appellant next complains about the testimony of Officer Raynard, who described Wilson's demeanor at the hospital when he identified appellant as the gunman, and suggests this testimony constitutes hearsay. The record reveals the following testimony of Officer Raynard, over objection, at page 164 of the transcript: OFFICER RAYNARD: He stepped out of the doorway and began pointing. It was like he was plugged into a wall. He was just excited. "That's him." Well, he didn't say anything but he just became charged. Q. Did you observe who was in the room that Mr. Wilson was pointing at in that manner? A. I looked in the room and that was the defendant, Mr. Freeman. We begin our analysis of this issue by examining Evid.R. 801, which deals with hearsay and defines a statement, in relevant part, as: - 15 - "(A) *** (2) nonverbal conduct of a person, if it is intended by him as an assertion." Evid.R. 801(C) states: "(C) *** "Hearsay" is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 803 governs hearsay exceptions and states in relevant part: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: "(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness. "(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The testimony of Officer Raynard concerns a nonverbal statement of Wilson and it is hearsay pursuant to Evid.R. 801 (A). However, because we conclude it falls within either the present sense impression or excited utterance exceptions to the rule, it is admissible and the court did not err. Accordingly, we find no merit to this assignment of error. VII. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED THE CLOTHING OF AN ALLEGED ACCOMPLICE INTO EVIDENCE. - 16 - Appellant claims the clothing of John Stallworth should not have been allowed into evidence because it was not relevant evidence under Rule 401 of the Ohio Rules of Evidence. The State argues this evidence is relevant to Wilson's credibility concerning his identification of appellant because Wilson positively identified Stallworth and his clothing. The issue for the court, then, is whether John Stallworth's clothing was admissible evidence. Evid.R. 402 states that all relevant evidence is admissible and Evid.R. 401 defines relevant evidence as "evidence having any 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." Further, Evid.R. 403 provides that although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. In this case, the clothing of John Stallworth is relevant because it tends to lend credibility to Wilson's identification of the suspects and it corroborates his testimony regarding that identification. See State v. Nelson (March 16, 1989), Cuyahoga App. No. 54791, unreported. Further, the probative value of this evidence is not outweighed by prejudice to appellant. As such, this assignment of error is not well taken and is overruled. - 17 - VIII. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED THE MOTIONS FOR JUDGMENT OF ACQUITTAL AS THERE WAS INSUFFICIENT EVIDENCE TO PERMIT A RATIONAL FACTFINDER TO RETURN A VERDICT OF GUILTY AND THE JUDGMENT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the denial of his motions for judgment of acquittal, made at the close of the State's case and renewed when the defense rested, constitutes error and that the convictions are against the manifest weight of the evidence. The State claims the court did not err in denying the motions for acquittal and the convictions are fully supported by the evidence in this case. The issues for this court, then, are whether the court erred in denying appellant's motions for acquittal and whether the convictions are against the manifest weight of the evidence. Crim.R. 29(A) sets forth the test which the trial court must apply in considering a motion for acquittal and states in relevant part: "(A) The court on motion of a defendant *** after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment *** if the evidence is insufficient to sustain a conviction of such *** offenses. ***" "Pursuant to Crim.R. 29, a court shall not order an entry of judgment acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material - 18 - element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. R.C. 2911.01 defines aggravated robbery as: "(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt of offense, shall do either of the following: "(1) Have a deadly weapon *** on or about his person or under his control." In this case, appellant attempted to rob the Hot Sauce Williams Restaurant armed with a gun, and also fled immediately after such attempt. R.C. 2903.11 defines felonious assault as: "(A) No person shall knowingly: "*** "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon ***." Further, the court in State v. Green (1991), 58 Ohio St.3d 239, held in its syllabus: "The act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of 'felonious assault' as defined by R.C. 2903.11(A)(2). (State v. Brooks [1989], 44 Ohio St.3d 185, ***, syllabus, explained and followed." In this case, not only were both appellant and Stallworth armed at the time they entered the restaurant, but also the owner was shot in the arm and hip and others were held at gunpoint. R.C. 2905.01 defines kidnapping as: - 19 - "(A) No person, by force, threat, or deception, *** shall *** restrain him of his liberty, for any of the following purposes: "*** "(2) To facilitate the commission of any felony or flight thereafter;" In this case, appellant forced employees Barry Roberts and Michael Wilson to get on the ground and held Maria Tillman at gunpoint, in order to facilitate the commission of this robbery at the Hot Sauce Williams Restaurant. We therefore conclude the State has produced evidence on each element of the offenses charged and therefore the court properly denied appellant's motions for judgment of acquittal. We next consider the issue of manifest weight and find the court in State v. Martin (1983), 20 Ohio App.3d 172, set forth the test to be used when addressing this issue: "*** 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. ***" Id., 175. A review of the record reveals that Michael Wilson identified appellant as one of those who participated in the events at Hot Sauce Williams Restaurant. The appellant offered no credible evidence to dispute the identification or to explain the circumstance of his shooting; though Charles Lanier did testify as to his recollection of those circumstances. The jury - 20 - properly considered the factual dispute and reached its decision based on evidence contained in the record. The police officers through their investigation were able to circumstantially establish appellant and Stallworth as the gunman. Based on our review of the entire record and weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice such that appellant's conviction must be reversed and a new trial ordered. We conclude the convictions are not against the manifest weight of the evidence and this assignment of error is without merit. Judgment affirmed. - 21 - 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. NUGENT, P.J., and PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .