COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68027 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT WRIGHT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-307801 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN J. DYER, III, ESQ. CUYAHOGA COUNTY PROSECUTOR 310 West Lakeside Avenue BY: EDWARD O. PATTON, ESQ. Cleveland, Ohio 44113 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-appellant Robert Wright, appeals his conviction for one count of Felonious Assault with specifications (R.C. 2903.11). In five assignments of error, appellant claims that the trial court improperly communicated with the jury; that his conviction was against the manifest weight of the evidence and that the court failed to rule on his discovery motion, improperly influenced the jury and failed to give an instruction on abandonment. Upon review we find appellant's assignments of error to be devoid of merit. The judgment of the trial court is affirmed. Three witnesses testified on behalf of the state. The victim, Philip Norman, testified that on December 8, 1993 the appellant and his brother beat him with their fists, hit him across the neck with an object rendering him semi-conscious and repeatedly kicked him in his back. Norman stated that he lost sensation in his body as the appellant and his brother continued to beat and kick him; that he possessed full function of his body prior to the beating but that after the beating he became paralyzed 1 from the neck down and would never walk again. Norman stated that he was unable to defend himself or rise during the assault and that Henry Wallace, a friend who invited him to stay in the house prior to the occurrence of the assault, came to his assistance. Henry Wallace testified that he, his wife Brenda Bradley and 1 The record demonstrates that the victim testified from his wheelchair and was unable to raise his right hand when he was sworn in. - 3 - the victim had been drinking on the evening of the assault; that between 7:00 and 7:30 p.m. he was awakened when he heard appellant's mother calling out for the victim by name; that he heard the sound of a stick hitting the wall and that when he descended the stairs he saw the appellant and his brother jump up 2 and down on the victim's back several times. He stated that when he attempted to assist the victim who was unable to move, the appellant and his brother attacked and jumped on him, prompting him to defend himself. On cross-examination Wallace admitted that he was "tipsy" at the time of the assault. He further admitted to having a prior conviction for arson and also admitted that his wife (another state witness) was scheduled for a shock probation hearing. Upon further cross-examination Wallace maintained that he saw the appellant hit the victim across the neck with a wooden two by four stick. Brenda Bradley testified that between 11:00 and 11:30 p.m., she saw the appellant and his brother stomp, kick and jump on the victim's back as he lay face down at the bottom of the stairs. She stated that she saw the two by four stick the day after the assault and that the stick was broken. She indicated that she called the fire department immediately after the assault to seek medical assistance for the victim. She further stated that she and her husband advised the victim against living in appellant's mother's 2 Wallace stated that most of the beating probably took place before he descended the stairs but that he saw the appellant jump on the victim's back at least three times. - 4 - home and that the victim was allegedly beaten because his girlfriend mistakenly took a bag of groceries instead of a bag of the victim's clothing from appellant's mother's home. On cross- examination Bradley admitted using an alias, admitted a conviction for receiving stolen property and also admitted that she was currently serving a sentence for aggravated assault. The appellant testified that his brother's girlfriend became angry upon discovering that three grocery bags were missing. The appellant stated that his brother's girlfriend proceeded to the Wallace house because she suspected that the victim had taken the groceries; that his brother followed his girlfriend to the Wallace house and that he followed both of them to make sure that his brother would not get into trouble. The appellant denied any involvement in the assault, denied encouraging the assault and maintained that he was trying to help the victim by attempting to get his brother to stop the beating. On cross-examination however, the appellant admitted that he neither called an ambulance for the paralyzed victim nor approached the police after the assault to tell them that his brother was the sole perpetrator of the attack. The prosecutor then asked the appellant why Henry Wallace would have hit him if he hadn't been involved in beating the victim. The appellant responded that it was dark and that Wallace may have thought he was involved. The appellant admitted that he was as large as his brother but maintained that despite numerous attempts, he was unable to stop - 5 - his brother from assaulting the victim. The prosecution also asked how the victim could have sustained such severe injuries if the appellant did not participate in the attack and repeatedly interrupted his brother's attack of the victim. The appellant maintained that he was not involved in the assault and agreed with the prosecution's sarcastic suggestion that Wallace, Bradley and the victim were lying when they testified that he was involved. The court overruled appellant's motion for acquittal and the jury found him guilty as charged. This appeal followed. I THE TRIAL COURT ERRED AND DEPRIVED THE APPELLANT HIS RIGHT TO A FAIR TRIAL BY ITS IMPROPER COMMUNICATIONS WITH THE DELIBERATING JURY. Appellant contends that the presiding judge failed to properly instruct the jury on the definition of reasonable doubt and abused his discretion by answering a question regarding jury instructions in the absence of counsel and the appellant. Upon review we find appellant's arguments fail to establish prejudicial error. As a general rule, any communication made by the judge to the jury outside the presence of the parties is error, which may warrant a new trial. See, Bostic v. Conner (1988), 37 Ohio St.3d 144. However, such ex-parte communications do not create a conclusive presumption of prejudice. See, State v. Schiebel (1990) 55 Ohio St.3d 71, 84. To warrant a new trial the communication must be of a substantive nature and prejudicial to the complaining party. Id. - 6 - Our review of the record indicates that the court properly instructed the jury on the definition of reasonable doubt and that such request for re-instruction was voluntarily withdrawn by the jury prior to the delivery of its verdict. Also, the jury instruction about which appellant complains involved the doctrine of the "failure to act." Such doctrine is inapplicable to the facts of instant case as there is no evidence in the record to 3 indicate that the appellant had any legal duty to act. While the 3 The jury question which forms the basis of appellant's assignment of error is based upon the following instruction: Participation in a crime is willful if action is taken voluntarily and intentionally, or, in the case of a failure to act, with the specific intent to fail to do something the law requires to be done; that is to say with a bad purpose either to disobey or to disregard the law. (Tr. 237 - 238) This instruction prompted the following exchange among the foreman, appellant's counsel and Judge Friedman who accepted the verdict in Judge Gaul's absence: The Foreman: Wait a minute. There was a question. It had to do with the definition of failure to act, the omission of an act as relating to aiding and abetting. He (Judge Gaul) came in and didn't give the paper back. He answered the question in regards to this case. Mr. Lentz: Is it okay to ask what the judge responded? The Court: I think it would not hurt to have the juror's recollection since right now we may not be able to get the judge's answer until tomorrow. The Court: Do you recall what (sic) the Judge Gaul's answer was? - 7 - presiding judge's conduct is highly improper and cannot be con- doned, his ex-parte response regarding a non-issue in the case could not operate to prejudice the appellant. Appellant's first assignment of error is overruled. II THE CONVICTION OF FELONIOUS ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his second assignment of error, appellant argues that the testimony of Henry Wallace and Brenda Bradley was unreliable because they had been drinking prior to the assault, because they had criminal records and because their testimony was contradictory. Appellant also claims that Ms. Bradley's testimony was biased because her shock probation hearing was pending at the time she testified. Lastly, appellant claims that the victim's testimony was unreliable because the victim was allegedly unconscious during the assault. Appellant's arguments are unpersuasive. In determining whether the verdict is against the manifest weight of the evidence 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 The Foreman: It had to do with failure to act, and that there was -- if there was a requirement to act. In other words, whether failure to act would have violated. He said no, not in this case. The Court: If that becomes, relevant, any further inquiry can be made of Judge Gaul. (Tr. 253 - 254) - 8 - created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. 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, paragraph one of the syllabus. Circumstantial evidence and direct evidence possess the same probative value. State v. Jenks (1991), 61 Ohio St.3d 259. The credibility of the witnesses is primarily a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. While Wallace and Bradley admitted consuming alcohol, the record demonstrates that such consumption did not incapacitate them. Wallace testified that he ran down the stairs when he heard the victim's name being called; that he realized the victim was in grave danger; that he immediately defended and continued to protect the victim despite the fact that he was beaten for doing so. Brenda Bradley testified that upon observing the assault, she ran upstairs to get a shoe to throw at appellant's brother in an attempt to protect the victim. She also stated that she called the fire department immediately to seek medical assistance. Since the conduct of these witnesses was highly appropriate and effective, a juror could reasonably infer that Wallace and Bradley were not incapacitated by alcohol and that their testimony regarding - 9 - appellant's active participation in the assault was accurately recalled. Also pursuant to DeHass, Wallace and Bradley's credi- bility, despite their prior convictions, was a matter for the trier of fact. Additionally, the contradictory statements to which appellant refers are irrelevant. The actual time that the assault was committed and the source and level of illumination in the Wallace house are non-issues in this case as the appellant raised neither an alibi nor a misidentification defense. Moreover, Wallace's testimony substantially corroborated Bradley's testimony with respect to the active role appellant's played in the victim's assault. Lastly, the victim maintained that he was semi-conscious, not unconscious, during the assault. When asked about what the appellant, in particular, did to him during the attack, the victim stated that the appellant "[b]eat me. Broke my neck. Stomped on my back." (Tr. 117) Hence, the state presented substantial, competent and credible evidence upon which a jury could reasonably conclude that all the elements of the offense of felonious assault had been proven beyond a reasonable doubt. Appellant's second assignment of error is overruled. III THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE APPELLANT'S CONSTITUTIONAL DUE PROCESS RIGHTS BY FAILING TO RULE ON APPELLANT'S MOTION TO COMPEL DISCOVERY. In his third assignment of error appellant claims that he was prejudiced by the state's failure to supply him with 5,000 pages of medical records. Appellant's argument is unpersuasive. - 10 - The record demonstrates that before trial commenced, the court reminded the appellant that he too had subpoena powers and that he could subpoena medical records if he wished to have them. The record also demonstrates that the state ultimately did not need the 4 medical record and that the appellant failed to give notice of a plan to "possibly" call a physician to introduce the records until after the state rested its case. In light of the court's pre- trial advice to the appellant and appellant's untimely disclosure of a plan to "possibly" call a medical expert, the court's denial of appellant's oral motion to continue trial to complete discovery was not arbitrary, capricious or unconscionable. See, Crim.R. 16(E)(3) and State V. Finnerty (1989), 45 Ohio St.3d 104, 107. Appellant's third assignment of error is overruled. IV THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION BY IMPROPERLY INFLUENCING THE JURY. In his fourth assignment of error appellant claims that the court committed prejudicial error when it mentioned another criminal case number during trial and urged the jury to reach a verdict within a certain period of time. Upon review, we find the appellant has failed to establish prejudicial error. The record demonstrates that the court cured its error by advising the jury that it had utilized an incorrect number in 4 The state indicated that it had no need for the records because it would present the victim who would testify to serious physical harm. - 11 - referring to appellant's case and that they should disregard the error. With respect to the urging of a prompt verdict, the record demonstrates that the court immediately advised jurors to take as long as they needed to deliberate as another judge would be available to receive their verdict. In light of the overwhelming evidence of appellant's guilt, we find such errors to be non- prejudicial. However, we are deeply disturbed by the court's directive which urged the jury to reach a timely verdict. Such transgression is at best improper. At worst, it embodies a blatant disrespect for the critical, deliberative function of the jury and displays a cavalier attitude on the part of the court which can seriously erode public confidence. While we are extremely displeased with the presiding judge's conduct, we cannot say that the appellant proved prejudicial error. Appellant's fourth assignment of error is overruled. V THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY AS TO THE AFFIRMATIVE DEFENSE TO COMPLICITY. In his fifth assignment of error, appellant claims that the trial court erred in denying his request for an instruction on abandonment. The decision of whether to give a jury instruction is within the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion. See, State v. Guster (1981), 66 Ohio St.2d 266. In the instant case, - 12 - appellant maintained throughout trial that he never participated in the assault, not that he participated in the assault and then "... abandoned his effort to commit the offense or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." See, R.C. 2923.02(D) Hence, since there is no evidence in the record to support an instruction on abandonment, the trial court did not abuse its discretion by refusing to instruct on same. Appellant's fifth assignment of error is overruled. The judgment of the trial court is affirmed. - 13 - 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. SWEENEY, P.J., AND PORTER, J., CONCUR. ANN DYKE JUDGE 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, .