COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67714 CITY OF CLEVELAND HEIGHTS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLYDE REED : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 12, 1995 CHARACTER OF PROCEEDING Criminal appeal from Cleveland Heights Municipal Court Case No. 94-CRB-581 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: KIM T. SEGEBARTH, ESQ. TYRONE REED, ESQ. Cleveland Heights City 12025 Shaker Boulevard Prosecutor Suite 575 40 Severence Circle Cleveland, Ohio 44120 Cleveland Hts., Ohio 44118 - 2 - JAMES M. PORTER, J., Defendant-appellant Clyde Reed appeals from his conviction following a jury trial for domestic violence (R.C. 2919.25(A)) in the Cleveland Heights Municipal Court. Defendant contends the trial court erred in allowing the City to cross examine his wife/victim as a hostile witness, in reading her statement to police to the jury, and in failing to order a new trial for juror misconduct. Defendant also contends the conviction was against the manifest weight of the evidence. We find no error in the proceedings below and affirm. The events leading to the charges arose out of an alleged altercation between defendant and his wife on April 4, 1994 at their home in Cleveland Heights. Mrs. Reed returned home about 7:00 a.m. after visiting a friend for a few days. When she arrived, an argument ensued with her husband about her whereabouts over the past few days. The evidence disclosed that the defendant began to physically attack his wife; struck her in the face and on her body several times with his fist; and bit her ear and pushed her down on the floor many times. The defendant tried to prevent her from using the phone to call the police. Before she was able to dial "911," he hit her with the phone. When Mrs. Reed fled her home to wait for the police, defendant locked her out. When the police arrived, defendant refused to let them in or speak with them. - 3 - The police took Mrs. Reed to the station where she made a written statement, signed a complaint and filed a motion for a temporary protection order. Photographs taken of the victim at that time indicated that she sustained several cuts and bruises, a black eye and a bleeding ear. A warrant was issued and defendant was arrested and charged with domestic violence. Defendant pled not guilty. A jury trial was held on July 1, 1994. The wife/victim was called by the City to testify, but became uncooperative and refused to confirm the statement given to the police that her husband had beaten her. The prosecution was allowed to cross-examine her as a hostile witness and read parts of her prior inconsistent statement to the jury. The case was submitted to the jury. Shortly after deliberations started, the jury had a question. Seven jurors favored a guilty verdict, however, one juror wanted a guilty verdict "with conditions." The court informed the jury that such a verdict was not an option, and within the hour, a unanimous guilty verdict was rendered. The verdict was signed by all eight jurors. The jury was polled and affirmed the verdict, except juror no. 5 who specifically stated "Yes, unfortunately." No further voir dire or inquiry was conducted by counsel or the court. The verdict was accepted by the court and the jurors discharged. After the jury separated, but before leaving the City Hall parking lot, juror no. 5 and defense counsel had a conversation. Defendant's attorney then stopped the trial judge's car as she was - 4 - leaving City Hall. Upon observing the situation, the bailiff and prosecutor joined the discussion. It was agreed that the matter of possible juror misconduct would be addressed at a more appropriate time and place, not in the parking lot of City Hall. Shortly thereafter, defendant filed a motion for a new trial. The City opposed the motion. The court allowed juror no. 5 to testify at the hearing in which she felt the defendant was not guilty, but that she was pressured into agreeing with the other jurors. In a written opinion, the court denied the motion for new trial and this appeal ensued. We will address the defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO CALL A HOSTILE WITNESS (EVID. R. 607) ON DIRECT EXAMINATION. When a witness demonstrates hostility during direct examination by changing testimony significantly from that which counsel had good reason to expect, he was traditionally subject to leading questions. State v. Springer (1956), 165 Ohio St. 182. The essence of this rule is contained in Evid. R. 611(C) which states as follows: Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. - 5 - Many times in assault and domestic violence cases, the victims are reluctant to prosecute their attacker for fear of more violence or because the parties have become reconciled. During the trial, Mrs. Reed was asked several times whether on April 4, 1994 an unusual incident occurred at the residence between her and the defendant. She continually responded that nothing happened on that date. Subsequently, the prosecutor asked the court to declare her a hostile witness because prior to the trial she had reviewed her earlier signed statement to police indicating her husband had beaten her on April 4 and affirmed the accuracy of the statement. Over defense counsel's objection, the court allowed the prosecution to examine Mrs. Reed as a hostile witness since the prosecutor had expected that Mrs. Reed's testimony at trial would be consistent with her written statement. She reviewed her written statement prior to her testimony and never told the prosecutor that her statement was fabricated or she intended to recant her out-of- court statement. The decision whether to allow such leading questions is left to the sound discretion of the trial judge who is in a better position to evaluate the attitudes manifested by the witnesses. State v. Dolce (1993), 92 Ohio App.3d 687, 704; State v. Stearns (1982), 7 Ohio App.3d 11; State v. Misley (June 23, 1994), Cuyahoga App. No. 65649, unreported. The trial court's ruling will not be reversed absent a showing of an abuse of discretion. Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 111; - 6 - State v. Moore (1991), 74 Ohio App.3d 334, 342. The record adequately substantiates the trial court's factual determination of prosecution surprise. The witness' evasive testimony demonstrated a clear affinity towards the defendant warranting the use of leading questions to develop the truth. Therefore, the ruling by the court that Mr. Reed had turned hostile to the prosecution was supported by the record and the allowance of leading questions during direct examination was appropriate. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN PERMITTING THE WITNESSES'S STATEMENT TO BE READ TO THE JUROR [SIC] AND INTRODUCED AS AN EXHIBIT. Evid. R. 607 states: "The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage." State v. Holmes (1987), 30 Ohio St.3d 20. Both requirements, surprise and affirmative damage, must be met before a prior statement can be used to impeach one's own witness. Dayton v. Combs (1993), 94 Ohio App.3d 291, 299; State v. Cantlebarry (1990), 69 Ohio App.3d 216, 222; State v. Stearns (1982), 7 Ohio App.3d 11. Surprise is adequately demonstrated if the testimony is materially inconsistent with the prior statement and counsel did not have reason to believe the witness would recant when called to testify. State v. Reed (1981), 65 Ohio St.2d 117; State v. Blair - 7 - (1986), 34 Ohio App.3d 6. In the case at bar, surprise was demonstrated when Mrs. Reed testified that she spoke with the prosecutor minutes before the trial and did not indicate that her out-of-court statement to the police was fabricated or that she intended to recant. The determination of whether a party has been surprised is entrusted to the sound discretion of the trial court. State v. Diehl (1981), 67 Ohio St.2d 389, 391; Blair, supra. Where a witness' statement strongly implied direct knowledge of the defendant's participation and the trial testimony denies such knowledge, "surprise" may be established. However, to establish "affirmative damage," the party's own witness must testify to facts which contradict, deny, or harm the party's trial position. Blair, supra; Stearns, supra. In the instant case, affirmative damage was demonstrated when Mrs. Reed testified that the defendant never hit her and stated that "I ran into something" to explain her injuries. This statement was even at odds with the defendant's testimony: [Prosecutor]: And could you tell us how those bruises came about? Mr. Reed: Probably during the course of me and her fighting and arguing. [Tr. 70]. [Prosecutor]: During this argument, Mr. Reed, did you physically strike your wife. Mr. Reed: Yes. [Prosecutor]: Where? Mr. Reed: I don't know. - 8 - [Prosecutor]: With what? Mr. Reed: My hand. [Prosecutor]: Your fist or hand? Mr. Reed: My hand. * * * [Prosecutor]: Isn't it a fact that you hit her with your fist several times? Mr. Reed: Yes. (Tr. at 83-85). Mrs. Reed testified that her signed police statement and complaint were invalid and untrue. She further testified that she discussed her trial testimony with the defendant prior to trial. Mrs. Reed's statements went directly to the prosecution's trial position that the defendant committed domestic violence against his wife. This testimony was critical to the City's case. It was obvious here that the witness was causing affirmative damage to the City's case and the use of her prior inconsistent statement to get at the truth was a matter within the discretion of the trial court. State v. Holmes (1987), 30 Ohio St.3d 20, 23; Cantlebarry, supra; State v. Balcarcel (March 17, 1994), Cuyahoga App. No. 65941, unreported. We find no abuse of discretion here. Assignment of Error II is overruled. - 9 - III. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION FOR A NEW TRIAL BASED ON JUROR MISCONDUCT. A juror cannot impeach his verdict by way of affidavit in an attempt to prove that it was rendered with an intention different from that disclosed by his vote in the verdict. Cleveland Electric Illuminating Co. v. Astorhurst (1985), 18 Ohio St.3d 268; Long v. Cassiero (1922), 105 Ohio St. 123; Sedgwick v. Kawasaki Cycleworks, Inc. (1991), 71 Ohio App.3d 117, 136; State v. Rowe (1993), 92 Ohio App.3d 652, 674-75; Michelson v. Kravitz (April 27, 1995), Cuyahoga App. No. 67342, unreported. Evid. R. 606(B) governs the type of evidence which may be considered when a court inquires into the validity of a verdict. The pertinent portion of the rule provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. *** His affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying will not be received for these purposes. This evidentiary rule embodies a aliunde rule which requires the introduction of evidence from a competent source other than a juror to impeach a jury verdict. State v. Lewis (1990), 70 Ohio App.3d 624, citing Giannelli, Ohio Evidence Manual (1988), 23. The aliunde rule states that the verdict of a jury may not be impeached - 10 - by the statement of a member of the jury unless there is evidence (aliunde) from some other source to impeach the verdict. State v. Adams (1943), 141 Ohio St. 423. In State v. Rogers (1990), 68 Ohio App.3d 4, the court citing State v. Kehn (1977), 50 Ohio St.2d 11, held that "before a juror may testify as to his own verdict, a foundation for that testimony must be acquired by the court, other than by testimony volunteered by the jurors themselves." No independent proof of the alleged misconduct was made available to the trial court in the instant case. In State v. Stamper (1986), 33 Ohio App.3d 104, a juror indicated that she had changed her mind regarding the guilty verdict as to the defendants. The court ruled there was no evidence to support a finding that the verdict was anything other than correct in every respect as well as duly agreed to and signed by all the jurors considering the case. In Stamper, the jury was polled at the request of defense counsel and each juror agreed that the verdict was true and correct. The record in the instant case only contains the affidavit of one juror, made after the jury had been discharged, that she had changed her mind. Similar to Stamper, there is no evidence to support a finding that the verdict was anything other than correct in every respect, as well as agreed to and signed by all of the jurors. - 11 - The dangers inherent in vacating a jury verdict without extrinsic evidence of misconduct was recognized in the leading case of Long v. Cassiero (1922), 105 Ohio St. 123, 126 which stated: It would be a dangerous precedent to establish in this state were we to announce the principle that jurors, after their separation, should be allowed to change their verdict to conform to their real intention ***. The Long holding was followed in Cleveland Electric Illuminating Co. v. Astorhurst (1985), 18 Ohio St.3d 268, where a juror was not allowed to impeach his verdict by way of affidavit in an attempt to prove it was different from that disclosed by his vote in the verdict. There were no valid grounds for impeaching the jury verdict or ordering a new trial. It is well settled in Ohio that the decision to grant or deny a motion for new trial is within the discretion of the trial court and that decision shall not be disturbed upon appeal absent a clear showing of abuse of that discretion. Toledo v. Stuart (1983), 11 Ohio App.3d 292; State v. Schiebel (1990), 55 Ohio St.3d 71. An abuse of discretion connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude. State v. Moreland (1990), 50 Ohio St.3d 58. Applying this standard of review to the case at bar, it is clear that the court's denial of defendant's motion for new trial was not an abuse of discretion. Assignment of Error III is overruled. - 12 - IV. DEFENDANT-APPELLANT'S CONVICTION WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. The weight of the evidence and the credibility of witness testimony is the province of the trier of fact, in the present case, the jury. State v. DeHass (1967), 10 Ohio St.2d 230; State v. Harris (1993), 89 Ohio App.3d 147: A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence, as follows: 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42 [102 S.Ct. 2211, 2216, 2218, 72 L.Ed.2d 652, 659, 661]. Martin, supra, 20 Ohio App.3d at 175. See, also, City of Brooklyn v. Seiber (Dec. 22, 1994), Cuyahoga App. No. 65212, unreported. A reviewing court must defer to the trier of fact who had the opportunity to hear the witnesses and observe their demeanor. State v. Eskeridge (1988), 30 Ohio St.3d 56. Recantation of prior testimony by an important witness for the state is not, by itself, grounds for a new trial. State v. Kicak (1960), 83 Ohio Law Abs. 289, 291; State v. Seiber (Sept. 2, 1993), Cuyahoga App. No. 63717, unreported; State v. Bradley (March 9, - 13 - 1995), Cuyahoga App. No. 67123, unreported. The victim's testimony, which included the recantation and the signed statement to police, is an issue for the jury to decide. Toledo v. Easterling (1985), 26 Ohio App.3d 59, 60. In addition to the statements of Mrs. Reed at the time of the offense and defendant's admissions as to striking her, the policeman called to the scene testified that he responded to the residence and met with Mrs. Reed. She informed him of what had occurred and he observed her injuries. The jury verdict was clearly not against the manifest weight of the evidence. Assignment of Error IV overruled. Judgment affirmed. - 14 - 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 Cleveland Heights Municipal 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. BLACKMON, P.J., and TIMOTHY E. McMONAGLE, J. CONCUR. JAMES M. PORTER 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 .