COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68156 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ISAIAH PARKER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 5, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-304232. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael Zidar, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Butler, Esq. 75 Public Square Suite 1210 Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Isaiah Parker, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for two counts of felonious assault with a firearm specification and one count of attempted kidnapping. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's is not well taken. I. THE FACTS On November 14, 1993, Isaiah Parker, defendant-appellant, allegedly assaulted Lalanda Davis and John Adams in the area near East 131st Street and Miles Avenue in Cleveland, Ohio. Lalanda Davis maintained that defendant-appellant beat her about the face and head with his hand and a handgun. John Adams maintained that defendant-appellant fired the handgun at him, narrowly missing. On December 20, 1993, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a five count indictment. Counts one through three of the indictment charged defendant-appellant with felonious assault with specifications in violation of R.C. 2903.11. Count four of the indictment charged defendant-appellant with intimidation of a witness in violation of R.C. 2921.03. Count five charged defendant-appellant with kidnapping with specifications and/or attempted kidnapping with specifications in violation of R.C. 2905.01. On January 18, 1994, defendant-appellant was arraigned whereupon he entered a plea of not guilty to all counts contained in the indictment. -3- On September 13, 1994, a jury trial began in the Cuyahoga County Court of Common Pleas. At trial, Lalanda Davis, one of the alleged victims in this case, testified that she had been a prostitute and was a recovering cocaine addict. Davis testified further that she first met defendant-appellant in 1984 when defendant-appellant engaged in sexual relations with her for money. The illicit relationship lasted approximately seven years until January, 1991. Davis maintained at trial that she ended the relationship with defendant-appellant because defendant-appellant became to controlling and possessive. In August, 1993, Davis began dating John Adams, a recent parolee from the Ohio prison system. Davis testified that, on the night of November 14, 1993, she and Adams left her home in order to go over to the home of Adams' mother. As they were walking down the street, defendant-appellant allegedly drove up behind the pair and pulled his Chevrolet Blazer to the curb. Davis walked over to the Blazer and spoke with defendant-appellant who then ordered Davis to get into the vehicle. Davis refused and defendant-appellant exited the vehicle, grabbed Davis and attempted to force her, against her will, into the Blazer. John Adams testified that, at this point, he questioned defendant-appellant and threatened to call the police if defendant-appellant failed to stop. Defendant-appellant, who was wearing a suit at the time of the incident, reached into his suit coat pocket as if he were reaching for a weapon and Adams fled fearing for his own safety. Davis eventually extricated herself from defendant-appellant's grip and fled as well. -4- Davis and Adams reunited in the parking lot of a nearby grocery store located across the street from Davis' home. As the pair began to walk through the lot, they saw defendant-appellant's truck driving through the area. Soon after, the pair noticed an individual approaching them from the direction of Davis' house. Upon closer inspection, they realized that the individual was defendant-appellant. Both victims maintained at trial that defendant-appellant had changed his clothes and was also now visibly armed with a small handgun. As defendant-appellant approached, he allegedly stated to Adams "I got you now". Adams fled once again and defendant-appellant allegedly grabbed Davis by the collar and struck her several times in the head with his hand and gun. After the assault, defendant- appellant allowed Davis to walk away. Davis proceeded to a pay phone located at East 131st Street and called 9-l-l to report the assault. Computerized police records establish the time of the call at approximately 10:53 p.m. As she was speaking to the police, Davis observed defendant-appellant drive down East 131st street, confront Adams who had been walking toward the pay phone and shoot at Adams. The bullet allegedly struck a wall behind Adams. The Cleveland Police Department dispatched two officers to the scene to investigate the call. Upon arriving at the scene, the police officers questioned both victims. During the interview, Davis indicated to the police that defendant-appellant's vehicle had just driven by the street. The officers pursued the vehicle but were unable to locate it after a -5- search of the area. The police officer at the scene testified that neither Davis or Adams appeared to be under the influence of drugs or alcohol. At 12:59 a.m. on November 15, 1993, the Cleveland Police Department received a second 9-1-1 call from Lalanda Davis reporting that defendant-appellant was now looking around Davis' backyard. Officer John Prince of the Cleveland Police Department and his partner were dispatched to the scene. While en route to Davis' home, the officers saw defendant-appellant's vehicle. The officers made a u-turn in order to pursue defendant-appellant. The officers then observed defendant-appellant's vehicle parked in the parking lot of a dry cleaners and defendant-appellant walking away from the vehicle. The police officers arrested defendant-appellant at 1:13 a.m., approximately four minutes after first detaining him. Both Lalanda Davis and John Adams positively identified defendant- appellant as the perpetrator of the earlier assaults. No weapon was ever found by the police. Isaiah Parker, defendant-appellant, testified that he did not have any contact with either alleged victim on the night in question until he was arrested and identified by Davis and Adams. Defendant-appellant maintained that, on the night the alleged assaults took place, he was in church until approximately 9:30 or 9:45 p.m. After church, defendant-appellant testified that he returned home at approximately 10:00 p.m. Defendant-appellant then received a telephone call from a Minister David Hiley who defendant-appellant knew from church. Mr. Hiley, who had been in -6- an automobile accident, asked defendant-appellant to come to the scene of the accident and assist him with the damaged automobile. Defendant-appellant testified that from that time forward he spent the evening helping Mr. Hiley with the automobile. Defendant- appellant contends that he was arrested while on the way back home after stopping to get a soft drink at a nearby store. Defendant- appellant estimated the time of his arrest as approximately 1:35 a.m. Mr. Hiley, who testified on defendant-appellant's behalf, stated that he called defendant-appellant's home at approximately 11:00 p.m. on the night in question and was informed by defendant- appellant's daughter that defendant-appellant had not yet returned from church. Mr. Hiley testified further that he was with defendant-appellant from approximately 11:30 p.m. until approximately 1:10 a.m. on the night that the alleged assaults occurred. Mr. Hiley testified that his home is approximately five minutes from defendant-appellant's home. Defendant-appellant, when questioned as to why Lalanda Davis would fabricate an assault, testified that Davis was his daughter from a previous relationship whom he had been supporting for some time. Approximately two days before this incident, defendant- appellant had told Davis that he would not give her money to support her drug habit and Davis became upset and threatened that she was going to get even with defendant-appellant. On September 19, 1994, the jury returned a verdict of guilty as to the second, fourth and fifth counts contained in the indictment, -7- felonious assault of Davis and Adams and attempted kidnapping of Davis. The jury returned a verdict of not guilty on the first and third counts contained in the indictment, felonious assault and intimidation of a witness. That same day, the trial court sentenced defendant-appellant to the Lorain Correctional Institution for a term of four to fifteen years on counts two and four of the indictment with three additional years for the gun specification and three to ten years on count five of the indictment. Isaiah Parker, defendant-appellant now appeals from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Isaiah Parker's, defendant-appellant's, first assignment of error states: DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: MANIFEST WEIGHT Defendant-appellant argues, through his first assignment of error, that his convictions for the offenses of felonious assault with specifications and attempted kidnapping were not supported by the manifest weight of the evidence. Specifically, defendant- appellant maintains that his convictions were based upon the testimony of Lalanda Davis and John Adams which was consistently contradicted, extremely uncertain, self-serving and conflicting. Based upon the inherent unreliability of their testimony, -8- defendant-appellant requests that his conviction be reversed and his sentence vacated. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE 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. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, -9- adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. THE JURY VERDICT IS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, evidence was presented by way of the eyewitness testimony of the two victims, Lalanda Davis and John Adams, as well as officers of the Cleveland Police Department, in an attempt to establish the elements of the offenses of felonious assault and attempted kidnapping. The two victims testified as to defendant-appellant's actions on the night of the assaults in -10- specific detail. The victims testified as to defendant- appellant's vehicle, the clothes defendant-appellant was wearing at the time of each incident and the specific time each incident took place. The Cleveland Police officers verified the time of the assault through the 9-1-1 police telephone log book and clearly noted that neither victim appeared to be under the influence of drugs or alcohol on the night in question. The police also indicated that, at the time of the arrest, defendant- appellant appeared to be engaged in evasive actions upon the realization that the police were in the area. Defendant-appellant attempted to establish an alibi through the testimony of his daughter Isaiella Parker and Mr. Hiley. However, a close review of the testimony of Ms. Parker and Mr. Hiley reveals that each of their stories offer conflicting versions as to the whereabouts of defendant-appellant during the time the assaults took place. Considering that the weight to be given the evidence and the credibility of the witnesses are primarily matters for the jury to determine and that it is not the function of the appellate court to substitute its judgment for that of the jury, State v. Grant (1993), 67 Ohio St.3d 465; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the jury verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the entire record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of felonious -11- assault with specifications and attempted kidnapping. Defendant- appellant's conviction was supported by substantial credible evidence upon which the jury could reasonably conclude that defendant-appellant was guilty of the charges as alleged in the indictment. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Isaiah Parker's, defendant-appellant's second assignment of error states: PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT Defendant-appellant argues, through his second assignment of error, that he was denied his constitutional right to a fair trial due to prosecutorial misconduct. Specifically, defendant- appellant refers to the following exchange between himself and the prosecuting attorney: Q. So Mr. Parker, are you saying then that the testimony of Officer Prince, as he was sitting here on the stand under oath, is a lie? A. Yes Sir. He was a lie. Q. And are you stating that the testimony of Officer Cook, as he sat up here, was also a lie? A. Also a lie. (Tr. at p. 467.) -12- It is defendant-appellant's position that his line of questioning was highly inflammatory and prejudicial to defendant- appellant's right to a fair trial. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT In State v. Mann (1993), 93 Ohio App.3d 301, this court citing State v. Hill (1977), 52 Ohio App.2d 393, set forth four elements to be considered in determining whether the prosecutor's statements amount to misconduct: (1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant. Another factor to be considered in determining whether remarks constitute misconduct is whether the remarks prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. In general terms, the conduct of a prosecuting attorney during trial cannot be made a basis for error on appeal unless the conduct deprives the defendant of a fair trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Vrana (1988), 47 Ohio App.3d 145. In addition, since defendant-appellant failed to object to the prosecutor's allegedly improper comments at trial, pursuant to Crim.R. 52(B), the comments must rise to the level of plain error affecting the substantial rights of defendant- appellant before this court can take notice of the error. Under a plain error analysis, reversal of a conviction is appropriate -13- only if it can be said that, but for the alleged error, the result of the trial would clearly have been different. State v. Kent (1980), 68 Ohio App.2d 151. C. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL. Notwithstanding defendant-appellant's contention, this court does not feel that the prosecuting attorney's questioning can be characterized as denying defendant-appellant a fair trial. It is well established that the scope of cross-examination lies within the sound discretion of the trial court. Evid.R. 611(B); State v. Acre (1983), 6 Ohio St.3d 140. In addition, cross-examination may include asking a witness if other witnesses who had testified previously had been lying. State v. Garfield (1986), 34 Ohio App.3d 300. In the case sub judice, the trial court did not abuse its discretion by allowing the prosecuting attorney to question defendant-appellant as to the truthfulness of previous witnesses' testimony given the existing discrepancies between defendant- appellant's testimony and the testimony which had previously been given. The prosecuting attorney's remarks did not affect a substantial right of defendant-appellant nor did they deprive defendant-appellant of a fair trial. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is 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 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. JAMES D. SWEENEY, P.J. and TERRENCE O'DONNELL, J., CONCUR. DAVID T. MATIA 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 .