COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67588 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DARRYL HUCKABEE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 26, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-304114 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SHERRY F. McCREARY, ESQ. VALERIE R. ARBIE, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Darryl Huckabee, appeals his conviction for felonious assault and assigns the following: 1. DARRYL HUCKABEE'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 CONVICTION FOR FELONIOUS ASSAULT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. 2. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE DEFENDANT-APPELLANT WHEN IT REFUSED TO ALLOW DEFENSE COUNSEL TO REVIEW THE STATEMENT OF THE ALLEGED VICTIM DURING THE TESTIMONY OF OFFICER HAMILTON. 3. MR. HUCKABEE'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR DURING CLOSING ARGUMENT. 4. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT DENIED THE DEFENDANT'S MOTION FOR SUPPRESSION OF IDENTIFICATION TESTIMONY AND PERMITTED WILLIAM VAUGHN TO PRESENT AN IN COURT IDENTIFICATION THAT WAS OBTAINED IN A SUGGESTIVE MANNER IN VIOLATION OF DARRYL HUCKABEE'S RIGHTS AS PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 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. Darryl Huckabee struck William C. J. Vaughn II on the right side of his face with a hard object. Vaughn believed the hard object was a gun. The force of the blow knocked Vaughn to the concrete pavement, which resulted in a cut on Vaughn's elbow. -4- After Vaughn regained his stance, Huckabee struck him in the face. Vaughn was taken to the hospital and treated for his injuries. The witnesses described the events that resulted in Vaughn's injuries. On October 2, 1993 at approximately 11:00 p.m., William C. J. Vaughn II and his girlfriend, Sharon Ensley, were standing on the first floor landing of the stairs inside the doorway to his apartment building on West 111th Street in the city of Cleveland. An acquaintance of Vaughn's known as Kenny entered the area. At about this same time, a man named Yogi came into the area and said "who has the 'dubs?'" "Dubs" is a street term used to refer to rocks of crack cocaine. Both Vaughn and Kenny responded in the negative. Five to ten seconds later, Huckabee came through the door, walked up the stairs to the second floor and within seconds he returned holding his hand behind his back. He leaned on the rail and said, "okay, this is how we're going to do it. I want everybody to step outside, and 'drop down.'" Vaughn believed the command to "drop down" meant they should step outside and empty their pockets. They stepped outside and Kenny began to empty his pockets. Ensley walked away. Vaughn believed Huckabee had a weapon behind his back, but did not see it. Huckabee's companion Yogi had a saw-off shotgun pointed at Vaughn's head. Huckabee again ordered Vaughn to "drop down." Vaughn refused. Huckabee then struck him on the right side of his face. Dazed, Vaughn fell to one knee. -5- He did not see the object Huckabee used to strike him. He did say, from the way it felt and his previous experience, he believed it to be a gun and not Huckabee's fist. Vaughn stood up with his fists raised to defend himself, and Huckabee struck him again in the nose. Vaughn fell to his knees and Huckabee ordered him to "drop down" again. Vaughn complied this time and emptied his pockets of sixty-five dollars, his car keys, his glasses, and everything else in his pockets. Huckabee ordered Vaughn to get up off his knees, took Vaughn's shirt, and ordered Vaughn to go around the corner and get on his knees. Vaughn refused; Huckabee and Yogi got in a car and left the scene. Afterwards, Vaughn went inside the building. Someone touched him on the shoulder; he abruptly swung around crashing his elbow through a three-inch glass window. This was the same elbow that was cut when he fell. As a result of being struck by Huckabee, Vaughn injured his elbow on the concrete pavement, his upper and lower lips were busted and bleeding, his right eye, and the right side of his face was swollen. Prior to the night in question, Vaughn had seen Huckabee in the neighborhood on several occasions, but did not know his name. After the night in question, he learned Huckabee's street name was "Huck." He gave a statement to the police describing Huckabee and Yogi. In his description of Huckabee, Vaughn told the police Huckabee had a "bad eye," and he provided them with the name "Huck." Vaughn later described the bad eye as being glassy. -6- Ensley described Huckabee's eye as being "colored funny" without a pupil. Detective Maurice Hamilton of the Cleveland Police Department was assigned to the case and was familiar with a person with the street name "Huck." He prepared a photographic array of Huckabee and five other men of the same or similar skin tone, height, weight, and general description. Hamilton did not select any other men with a "bad eye" for the photographic line-up. When Vaughn was shown the photographic array, he immediately identified Huckabee. Huckabee was indicted for aggravated robbery with specifica- tions, felonious assault with specifications, and having a weapon while under disability. The case proceeded to a jury trial on the charges of aggravated robbery and felonious assault. At the close of the state's case, Huckabee moved for judgment of acquittal under Crim.R. 29. The trial court denied the motion as it related to the aggravated robbery and felonious assault charges but granted the motion as it related to the specifications. After deliberations, the jury returned a verdict of not guilty to the charge of aggravated robbery and guilty as to the charge of felonious assault. Huckabee was subsequently sentenced to eight to fifteen years, and this appeal followed. In his first assignment of error, Huckabee asserts the trial court erred by not granting his Crim.R. 29 motion for acquittal. A motion for acquittal under Crim.R. 29 should be denied and the issue presented to the jury if the evidence, viewed in a light most favorable to the state, is of sufficient quantity that reasonable -7- minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, citing State v. Bridgeman (1978), 55 Ohio St.2d 261. See, also, Jackson v. Virginia (1979), 433 U.S. 307, 319. The issue before this court is whether, under this principle of law, the prosecution proved serious physical harm. If not, the motion should have been granted. It is agreed by both parties that evidence demonstrating that the victim needed medical attention is sufficient to establish serious physical harm in this jurisdiction. See State v. Barnd (1993), 85 Ohio App.3d 254; State v. Williams (Nov. 10, 1983), Cuyahoga App. No. 46599, unreported. In these cases, this court held the jury may reasonably infer that the force used by the defendant caused serious physical harm. Vaughn testified Huckabee hit him on the side of his face with an object that was so forceful that he fell to the concrete pavement and suffered a cut to his forearm. Vaughn described the object as feeling like a gun. He offered his experience with weapons and concluded Huckabee struck him with a gun. He also testified Huckabee held his hand behind his back as if concealing a weapon. Vaughn was sure the object was not Huckabee's fist. When he was struck a second time, he was hit in the face, which caused a swollen eye, a cut top lip, and a "gash" inside his bottom lip. Ensley testified she took Vaughn to the hospital for these obvious injuries. -8- Huckabee asserts Vaughn sought medical treatment only for the self inflicted wound to his elbow; consequently, this medical treatment may not be used to infer serious physical harm. Huckabee correctly draws the appropriate premise. However, it is of no consequence. The medical record showed without a doubt that Vaughn was treated for the cut to his forearm and his elbow. His forearm was cut when Huckabee hit him in the head knocking him down on the concrete pavement. Vaughn testified his forearm was cut, and the medical report showed he was treated for that wound. Consequently, this court concludes the trial court had sufficient evidence in its possession to present this case to the jury on the issue of serious physical harm. Nevertheless, Huckabee argues this court should follow State v. Ziko (1991), 71 Ohio App.3d 832. In Ziko the majority found the evidence insufficient to convict Ziko for felonious assault of John Stergo because the state failed to produce testimony of an actual weapon. Consequently, the jury found the absence of the violence specification. Therefore, in Ziko this court felt the absence of a deadly weapon negated the crime of felonious assault. It is no doubt that the Ziko case is distinguishable from this case because it involved a deadly weapon. State v. Ziko p.835. In this case, the felonious assault charge required proof of serious physical harm. This section of felonious assault does not require a deadly weapon or a dangerous ordnance to obtain a conviction. The evidence before the court at the time of the motion was that Huckabee struck Vaughn with an object that had the -9- force of knocking Vaughn to the ground where he sustained an injury to his forearm. Vaughn believed the object to be a gun. Whether it was a gun or not is of no consequence to this court, since the deadly weapon element of felonious assault was not at issue in this case. What was at issue in this case was whether Vaughn suffered serious physical harm. Serious physical harm may be shown by testimony of medical treatment. Vaughn did receive medical treatment for the injuries to his face and forearm; consequently, the jury could reasonably infer from this fact that the injuries were serious and the force used caused serious physical harm. State v. Williams. In his second assignment of error Huckabee asserts the trial court erred in not allowing him to review Vaughn's statement while Detective Maurice Hamilton was testifying. He argues this is a violation of Crim.R. 16(B)(1)(g) and reversible error. Crim.R. 16(B)(1)(g) provides as follows: "In camera inspection of witness' statement. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement.***" Crim.R. 16(B)(1)(g) clearly provides for an in camera inspec- tion of the statement of the witness who is testifying during the -10- testimony of that particular witness. By its own language, the purpose of the rule is to permit cross-examination of a prosecution witness by a defense attorney when the witness' testimony is incon- sistent with that witness' prior statement. Crim.R. 16(B)(1)(g) does not, however, make any provision for an in camera inspection of the statement of one witness to impeach another witness. Furthermore, Crim.R. 16(B)(2) limits the disclosure of the prosecution witness' statements as follows: "Information not subject to disclosure. Except as provided in subsections (B)(1)(a), (b), (d), (f), and (g), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses to state agents." In this case, Counsel for Huckabee was afforded an opportunity to participate in an in camera inspection of Vaughn's statement when Vaughn testified. Thus, the trial court complied with Crim.R. 16(B)(1)(g). Counsel for Huckabee, however, sought to review Vaughn's written statement a second time when Hamilton was testify- ing and that request was denied. After a careful review of Crim.R. 16, it is clear the request to use one witness' statement to impeach another witness does not fall within the scope of Crim.R. 16(B)(1)(g) or any of the other exceptions enumerated in the rule. Therefore, as a matter of law, counsel for Huckabee did not have a -11- right to an in camera inspection of Vaughn's statement during Hamilton's testimony. In his third assignment of error, Huckabee asserts he was denied a fair trial because of prosecutorial misconduct during closing argument. "The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant." State v. Smith (1984), 14 Ohio St.3d 13, 14. See, also, Keenan (1993), 66 Ohio St.3d 402, 410. In closing arguments, the prosecution is entitled to "some latitude and freedom of expression." State v. Woodards (1966), 6 Ohio St.2d 14, 26. The first issue in this assignment is whether the prosecutor's reference to specifications, which had been deleted prior to trial prejudicially, affected Huckabee's substantial rights. It is clearly improper for a prosecutor to refer to specifications in his closing argument before the jury when those specifications have been dismissed. However, such references are not prosecutorial misconduct unless they are so flagrantly improper that they prejudicially affect the substantial rights of the defendant. See State v. Mabry (June 19, 1992), Hardin App. No. 6-91-18, unreported. In this case, the prosecutor referred to the violence specifications. Defense counsel objected. The trial judge, in the presence of the jury, stated there was no firearm specification. The prosecutor then stated there was a violence specification. The trial judge, however, reminded the prosecutor that the violence -12- specifications had been deleted prior to trial and ordered the prosecutor to "stay with the aggravated robbery and the felonious assault in both of the counts, but absent the firearm specification." Thereafter, the prosecutor offered his apologies and continued with his closing argument. Because the trial judge corrected the prosecutor in the presence of the jury, we do not find Huckabee's substantial rights were affected. The second issue is whether the prosecutor committed plain error when he argued in closing argument that Huckabee used a handgun in the assault. Huckabee asserts the prosecutor argued facts not in evidence in his closing argument, but counsel for Huckabee failed to raise an objection in the trial court. When defense counsel fails to object to remarks made by a prosecutor in closing argument, any error is waived unless it is plain error within the meaning of Crim.R. 52(B). E.g. State v. Strobel (1988), 51 Ohio App.3d 31. Plain error does not exist unless it can be said that, but for the error, the outcome of the trial would clearly have been otherwise. State v. Nicholas (1993), 66 Ohio St.3d 431. In this case there is no evidence that, but for the error, the outcome of the trial would have been otherwise. In his fourth assignment of error, Huckabee asserts the trial court erred in denying his motion to suppress identification testimony because the police photographic line-up was suggestive and violated his Constitutional rights. We disagree. "The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long -13- as the identification possesses sufficient aspects of reliability." (Footnote omitted.) Manson v. Brathwaite (1977), 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140, 149; Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. The critical inquiry is "whether under the 'totality of the circum- stances' the identification was reliable even though the *** procedure was suggestive." Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411. The factors to be considered include: "[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' 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 suggestive identification itself." Manson, supra, 432 U.S. at 114-116, 97 S.Ct. at 2253, 53 L.Ed.2d at 154; Biggers, supra, 409 U.S. at 198-200, 93 S.Ct. at 382, 34 L.Ed.2d at 410. In this case, the photographic array of six men clearly made a suggestive line-up because Huckabee was the only one photographed with a "bad eye." Nonetheless, we must consider the factors effecting reliability. Vaughn was given ample opportunity to view Huckabee at the time of the crime. The inside of the apartment building and the parking lot outside of the building were well lighted and Vaughn had a clear unobstructed view of Huckabee. Vaughn gave the police a clear description of Huckabee with a high degree of accuracy. Although the line up took place more than a month after the incident, Vaughn was absolutely certain when he picked Huckabee from the photographic line-up. The reliability of Vaughn's identification was further bolstered by the fact he had seen Huckabee in the neighborhood prior to the night in question -14- and was able to provide the police with Huckabee's street name, "Huck." Having considered the totality of the circumstances, we find Vaughn's identification was reliable, and the trial court properly denied the motion to suppress. Judgment affirmed. -15- 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. PORTER, J., and McMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .