COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68003 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ANTONIO LITTLE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 2, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-308,386A JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN W. MONROE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: WESLEY A. DUMAS, SR. Attorney at Law 1711 Superior Building 815 Superior Avenue, N.E. Cleveland, Ohio 44114 - 2 - AUGUST PRYATEL, J.: Defendant-appellant Antonio Little (hereinafter "appellant") and one other individual not a party to this appeal, Michael Beard, were charged in a one-count indictment with inciting to violence in violation of R.C. 2917.01. The appellant and Michael Beard stood trial together. The jury found the appellant guilty of the charge but found Michael Beard innocent. The appellant received a sentence of one year of incarceration at the Lorain Correctional Institute. The appellant now appeals from his conviction, assigning for this court's review the following purported errors: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADDING ALLEGATIONS OF CRIME(S) THAT HAD NOT BEEN SET FORTH IN THE BILL OF PARTICULARS AND IN DENYING THE DEFENSE MOTION FOR ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29. II. THE DEFENDANT WAS PREJUDICED AND DENIED A FAIR TRIAL BY THE MISLEADING AND ABSTRACT JURY INSTRUCTIONS GIVEN BY THE COURT. III. THE COURT COMMITTED PREJUDICIAL ERROR AND PREVENTED ANTONIO LITTLE FROM HAVING A FAIR TRIAL BY PREVENTING INTRODUCTION INTO EVIDENCE OF RIPPED TROUSERS AND PHOTOGRAPHS OF HIS INJURIES. Based on the reasons set forth below, we find no error and affirm the judgment of the trial court. - 3 - I. The appellant's conviction stems from an incident occurring during the breaking up by police of an unruly party at an apart- ment located in a Cuyahoga Metropolitan Housing Authority ("CMHA") apartment complex, culminating with the appellant, after assaulting an officer, goading the thirty to fifty people attending the party that they "can get them white honkey mother f--kers right now. There are more of us than them. Let's get them." Evidence adduced during the state's case reveals the follow- ing facts: On February 11, 1994, at approximately 10:30 p.m., Police Officer Theodore Troyer of the CMHA police department, and his partner Landry Simmons, were dispatched by radio broadcast to 2301 E. 40th Street, where it was reported that a gang fight had erupted at a party. Upon arriving at the scene, the officers observed a large number of people, most of whom were males between the ages of twelve and eighteen, standing outside and in the stairway leading to the third floor apartment of 2301 E. 40th Street where the party was being held. A few minutes later, Officer Shaughnessy, along with police dog Argo, also responded to the scene after a call had come over the car radio that a large gang fight was in progress in the hallway outside 2301 E. 40th Street. Officers Troyer and Simmons entered the stairwell first and proceeded up the stairs toward the third floor apartment. Officer - 4 - Shaughnessy advised the people out in front of the building to leave the area. He then also entered the stairwell to disperse the thirty or so people who were gathered there. The crowd was screaming, swearing and fighting as the officers proceeded up the stairwell. All of the officers instructed the people in the stairwell to leave the area. When Officer Shaughnessy reached the second floor landing, he heard a male yelling at the officers that they could not make them leave and also yelling at the crowd that they did not have to leave. Officer Shaughnessy looked over the rail down to the first floor and watched the appellant yell to the crowd that they did not have to depart from the area. At the appellant's urging, the crowd was now hesitating to leave the stairwell. Officer Shaughnessy told the appellant to leave the area immediately. The appellant refused to leave and continued to tell the crowd they did not have to go. Officer Shaughnessy told the appellant that if he did not leave immediately, he would be arrested. At that point, the appellant went down the stairs and outside to the front of the building, where he began screaming that he did not have to leave and that the police could not make him depart. Concerned that the fight would move to that area, Officer Shaughnessy went outside and confronted the appellant. Officer Shaughnessy again told the appellant to leave the area. The appellant became irate, waving his arms and shifting his body around, and yelling at Officer Shaughnessy that he would "f--k him up" and "kill his f--king dog." The appellant began screaming that - 5 - the CMHA police "weren't shit" that they could not make them leave and that there were "enough of them" there. As the people came out of the stairwell, they started to gather near the appellant. The appel-lant yelled out to them that, "We can get them white honkey mother f---ers right now. There are more of us than them. Let's get them." The crowd began to move in on Officer Shaughnessy. Fearing for his safety, Officer Shaughnessy called for backup. He then told the appellant he was under arrest and to turn around and put his hands behind his back. As Officer Shaughnessy attempted to turn the appellant around to place him against the wall to handcuff him, the appellant turned around and swung at Officer Shaughnessy, striking him on the side of his face. Immediately after the appellant struck the officer, police dog Argo, without command, bit and grabbed hold of the appellant's leg. (Argo is trained to protect his handler.) Officer Shaughnessy repeatedly told the appellant to lie still and he would call off the dog. The appellant ignored his instruction and attempted to run away with Argo still biting his leg. When the appellant stopped running, Officer Shaughnessy placed him in handcuffs and commanded Argo to let go of the appellant's leg. The appellant was placed under arrest and then transported to the hospital for treatment for dog bites. Officer Shaughnessy was also taken to the hospital for treatment for his face. Officer Troyer testified to essentially the same facts as Officer Shaughnessy. Officer Troyer responded to Officer - 6 - Shaughnessy's radio call for assistance and heard the appellant challenge Officer Shaughnessy's authority to make him leave the area. Officer Troyer also saw the crowd surround Officer Shaughnessy at the appellant's urging. At the close of the state's case, the appellant made a Crim.R. 29 motion for judgment of acquittal. The court denied the motion. The defense theory of the case is that nothing the appellant did or said incited the crowd, but, rather, it was the aggressive manner in which the CMHA police approached the appellant and the vicious attack of him by the police dog that incited the crowd to surround Officer Shaughnessy. To support this theory, the appel- lant, testifying on his own behalf, stated that he was leaving the stairwell as he was asked to do and that Officer Shaughnessy, without provocation, followed him out of the building and told him to "get the f--k out of here." Upset with Officer Shaughnessy's statement, the appellant said he asked Officer Shaughnessy who he thought he was, talking to him like that. Officer Shaughnessy then told the appellant to go home, to which the appellant responded he was at home. Officer Shaughnessy then told the appellant to go in the house. The appellant told Officer Shaughnessy he was going to go inside until he "cussed" at him. The appellant said Officer Shaughnessy then told him, "I'll kick your ass." In response, the appellant said (1) that he told Officer Shaughnessy to put his dog into the car so they could fight, (2) that he (the appellant) then - 7 - turned and started to walk away, and that (3) Officer Shaughnessy told him, "F--k you, you're under arrest." The appellant said that when he asked why he was being arrested, Officer Shaughnessy told him it was for assaulting him and his dog. The appellant said the next thing he knew, the dog was attacking him. The appellant also testified about the extent of his dog bite injuries. The trial court refused, however, to let the appellant introduce photographs of his dog bite wounds. On cross-examination, the appellant denied striking Officer Shaughnessy. He did, however, admit saying to Officer Shaughnessy when he was asked to leave that he was not going anywhere. He also stated that he told Officer Shaughnessy that if he wanted to fight, they could do that. The appellant expressed the view that CMHA police are not real police and, therefore, they had no authority to break up the party or make him leave the area. Also testifying for the defense were Linda Thomas and twelve- year-old Samuel Cannon. Both testified that Officer Shaughnessy was the aggressor, that the appellant did not incite the crowd to do anything and that the appellant did not strike Officer Shaughnessy. II. In his first assignment of error, the appellant contends that his motion for acquittal should have been granted because neither - 8 - the indictment charging him with inciting to violence nor the bill of particulars set forth a specific offense of violence as stated in R.C. 2917.01. The appellant also argues that the state failed to produce any evidence of any offense of violence (notwithstand- ing that the state introduced evidence of three offenses of vio- lence; to-wit: assault, riot and escape). The appellant was charged with a violation of R.C. 2917.01(A)(1), which states that: (A) No person shall knowingly engage in con- duct designed to urge or incite another to commit any offense of violence, when either of the following appl[ies]: (1) Such conduct takes place under cir- cumstances which create a clear and present danger that any offense of vio- lence will be committed. The indictment charging the appellant with violating R.C. 2917.01 reflects the precise language of the statute, which meets the requirements of Crim.R. 7, which states generally that an indictment need only identify and set forth the elements of the crime charged. See State v. Renya (1985), 24 Ohio App.3d 79, 80. The appellant took no further action on the indictment. This is not to say that the appellant may not be entitled to be apprised of the nature of the offense of which he was accused of committing or 1 urging or inciting another to commit. Upon proper request by 1 An offense of violence is defined in R.C. 2901.01(I) as follows: (I) "Offense of violence" means any of the following: (1) A violation of sections [thirty- three different Revised Code sections including assault, riot and escape]. - 9 - the appellant in a motion for a bill of particulars, the state would be required to provide him with greater detail concerning the nature of the charged offense and to elucidate and particularize that conduct which allegedly constituted the crime of inciting to violence. State v. Gingell (1982), 7 Ohio App.3d 364. The motion for a bill of particulars filed by the appellant and granted by the court, however, concerned itself with dates, times and identities of parties. Furthermore, it was not until after the state concluded its case in chief that the appellant raised the issue of failure to disclose the evidence of violence. This delay may have been a tactical choice. If disclosure of the "offense" of violence were as crucial to the appellant's defense as he contends on appeal, he should have been more diligent before trial in seeking additional information. Addressing the sufficiency of the evidence issue, we note that the state was not required to prove, as contended by the appellant, that others did commit an offense of violence, i.e., assault, riot or escape. Rather, the state was required to show only that there was a clear and present danger that the appellant or another would commit one of these offenses of violence as a result of goading by the appellant. To this end, we hold that the state's evidence that the appellant, upon assaulting the officers and yelling at Officer Shaughnessy that he would "f--k him up" and "kill his f--king dog" and shouting to the crowd that there were more of them than there were of the police and "Let's get him," when construed in a light - 10 - most favorable to the state, supports the jury's verdict. State v. Jenks (1991), 61 Ohio St.3d 259. The appellant's first assignment of error is overruled. In his second assignment of error, the appellant asserts that he was prejudiced and denied a fair trial by the misleading and abstract jury instructions given by the court. This court's review of the trial court's instructions to the jury is governed by an abuse of discretion standard. State v. Wollons (1989), 44 Ohio St.3d 64, 68. In its instructions to the jury, the court stated: *** Before you can find the [defendant] *** guil- ty, you must find beyond a reasonable doubt that on or about February 11, 1994, in Cuya- hoga County, Ohio, that the [defendant], *** knowingly engaged in conduct designed to urge or incite another or others into committing an act of violence, and the conduct took place under circumstances which created a clear and present danger that an offense of violence would be committed. You must consider all of the circumstances that were present at that time in making your determination. Now, knowingly is an element that you will see here. A person acts knowingly, regardless of his purpose, when he is aware that his conduct would probable [sic.] cause a certain result. A person has knowledge of circumstances when he is aware that the circumstances probable exist. *** As I said, inciting to violence provides that - - the statute provides that no person shall knowingly engage in conduct designed to urge or - 11 - incite another person to commit any offense of violence. The offense of violence as set forth in the Ohio law in this case would be one or more of the following[:] Assault or riot or escape. Assault is defined as knowingly causing or attempting to cause physical harm to someone else, another person. Riot is defined as five or more persons par- ticipating in a course of disorderly conduct, making unreasonable noise or an offensively utterance, gesture or display. Communicating unwarranted and grossly abusive language to any person, with a purpose to commit some misdemeanor or to intimidate a police officer into refusing from taking action with the purpose to hinder, impair or distract an officer in the performance of his duty. Escape is defined as purposely attempting to break detention, knowing that one is under arrest and therefore detained. Now some argument was made that no violence actually occurred. Under the law, *** the offender may be guilty of the crime of incit- ing to violence, even if no violence actually results from his conduct. The offense charged here is inciting to vio- lence. It is also the law of Ohio that any person who commits a crime or breach of the peace may be subject to arrest. It is also the law of Ohio that a police officer has the duty to preserve the peace. The officers of the Cuyahoga Metropolitan Housing Authority are duly empowered to keep the peace and effect arrests under the law. It is also the law that no person, without the privilege to do so, may purposely prevent or obstruct or delay a police officer in the lawful performance of his duty. All persons are required to comply with the lawful directives of a police officer. No person has the right to refuse the lawful - 12 - directive of a police officer made in the lawful performance of his duty, nor resist or interfere with the lawful arrest of himself or another. Some evidence has been presented to you by the [defendant] that [he] suffered some in-jury in the course of [his] arrest. That is not an issue in this case and must not be considered by you as such. Your duty is confined to the determination of whether the [defendant] *** [is] guilty of inciting to violence as charged. (Emphasis added). *** First, the appellant asserts that the trial court erred in giving the jury the state's special instruction on obstructing official business when he was not charged with obstructing offi- cial business. A court's instructions to the jury should be addressed to the actual issues in the case as posited by the evidence and the pleadings. State v. Guster (1981), 66 Ohio St.2d 266. Abstract rules of law or general propositions, even though correct, ought not to be given unless specifically applicable to the facts in issue. Id; e.g., State v. Loudermill (1965), 2 Ohio St.2d 79. The special instruction given by the court was relevant to the issues to be decided by the jury. As part of his defense, the appellant maintained that the police officers acted in an overly aggressive manner, which is what incited the crowd. Since this instruction of obstructing a police officer was relevant to the determinations required, the trial court was justified in giving the instruction. - 13 - The appellant also argues that the court erred in instructing the jury, without first giving him notice, that the offense of violence he allegedly committed or incited another person to com- mit was assault, riot or escape. In light of our determination of the appellant's first assignment of error on the bill of particu- lars, we find no abuse of discretion on the part of the trial court in this instruction to the jury. Finally, the appellant argues that the court erred in in- structing the jury that his injuries were not an issue in this case. Specifically, the appellant argues that this instruction was given to undermine his defense. A responsible reading of this instruction clearly demonstrates that it was given to eliminate any confusion that might exist on the part of the jury as to what they were deciding -- in short, that there was incitement and whether the appellant was primarily responsible for it. For the foregoing reasons, the appellant's second assignment of error is overruled. In his third assignment of error, the appellant contends that the trial judge committed prejudicial error when it prevented him from introducing into evidence photographs of his dog bite wounds and the pants appellant was wearing when he was bitten. The appellant argues this evidence was relevant under Evid.R. 401 as it would assist the jury in understanding his defense; to-wit: that the crowd was incited not by anything he said or did but, rather, by the vicious way Officer Shaughnessy's dog attacked him. The - 14 - state, on the other hand, contends that this evidence was cumulative, hence inadmissible. We conclude that the court did not abuse its discretion. The law is clear that a trial judge has wide discretion when determining the admissibility of evidence and, absent a clear showing of abuse of discretion, the trial court's determination will not be reversed upon review. Renfro v. Black (1990), 52 Ohio St.3d 27, 32; State v. Porch (May 5, 1994), Cuyahoga App. No. 65348, unreported. The trial court did not abuse its discretion in excluding as unfairly prejudicial, confusing or cumulative the photographs of the appellant's dog bite wounds or appellant's torn pants. See Evid.R. 403. As already stated, the purported purpose of the photographs and the pants, neither of which is in the record, ignores the fact that neither of them can qualify as a defense to an incitement to violence -- nor was the bite (or torn pants) unex- pected under the tension present that night. For the trial judge to deny their admission was not an abuse of discretion although the jury did hear testimony from the appellant regarding the extent of his injuries. The jury also had before it a copy of the appellant's hospital records, which detailed the extent of his wounds. In addition, the state did not dispute the dog bites nor their seriousness. Indeed, several police officers acknowledged during trial that the appellant was seriously bitten. Given all of this evidence in the record, we cannot say that the trial court's - 15 - decision to exclude the cumulative evidence or photographs and pants was arbitrary or unreasonable. The appellant's third assignment of error is overruled. Judgment affirmed. - 16 - 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 Cuyahoga County Court of Common Pleas 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. JAMES M. PORTER, P.J. CONCURS DIANE KARPINSKI, J. CONCURS IN PART; DISSENTS IN PART (See attached Opinion.) JUDGE AUGUST PRYATEL* *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. 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, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68003 : STATE OF OHIO : CONCURRING : : AND Plaintiff-Appellee : : DISSENTING -vs- : : OPINION ANTONIO LITTLE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority's disposition of the first and third assignments of error. However, I respectfully dissent from the majority's disposition of the second assignment of error and would reverse and remand the case for a new trial under proper jury instructions. R.C. 2917.01 defines the offense of inciting to violence and expressly prohibits inciting another to commit an offense of violence. Contrary to the majority opinion, the statute does not - 2 - proscribe inciting oneself to commit such an offense. (Ante at p. 9.) This distinction is significant because the trial court's instructions on the crime of inciting to violence were based on three possible offenses of violence: (1) assault, (2) riot, and (3) escape. The record contains no evidence, however, that defendant incited anyone, other than himself, to commit the third possible offense of escape from detention following arrest. The trial court committed reversible error by instructing the jury on this third alternative ground, which was not supported by the evidence. Any or all of the jurors may have based their determination of defendant's guilt on this improper escape theory, rather than the assault or riot offenses supported by the evidence. Principles of due process dictate that, without a consistent unanimous verdict demonstrably free from such error, this court should reverse the jury's general verdict. Because the majority .