COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68167 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION FREEMAN SMALL : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-313177A. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Thomas E. Conway John W. Monroe Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Stephan McGowan, Esq. 55 Public Square, Suite 2200 Cleveland, Ohio 44113 Granville H. Bradley, Jr., Esq. Rockefeller Building, Suite 700 614 Superior Avenue N.W. Cleveland, Ohio 44113 SWEENEY, JAMES D., P.J. Defendant-appellant Freeman Small was convicted of one count of involuntary manslaughter in violation of R.C. 2903.04(A), with a firearm specification; and one count of attempted murder in violation of R.C. 2903.02, with a firearm specification. The appellant was sentenced to concurrent terms of incarceration of seven to twenty-five years on each count with a three-year sentence for the firearm specifications to be served prior to and consecutive with the sentences for involuntary manslaughter and attempted murder. On August 7, 1994, James Polk, an innocent bystander, was shot and killed while playing basketball on the playground at Marion Sterling School. The appellant was arrested the next day by Cleveland Police Officer James Purcell and his partner. The victim of the attempted murder, Deandre Jackson, testified that for the last five years he has resided across the street from the school with his fiance and their three children. After the attempt on his life, he moved in with his mother for a month in order to protect his family. In late July 1994, Mr. Jackson and the appellant were playing basketball at the school with other young men. The two were on opposing teams, and an altercation between them ensued. Jackson stated that the appellant brought his hand up as though to strike and in response he punched the appellant in the chest, but did not knock him down. The appellant stated "You going to hit a little - 3 - nigger? You dead, nigger. You dead." (T. 81.) At this point Tyrone Jones approached and stated "Oh, you want to fight? You want to fight? I'll be right back. I'll be right back." (T. 82.) Jones and the appellant left the playground. Jackson left the playground in order to avoid further confrontation. Jackson is approximately six foot one inch tall and weighs two hundred twenty-five pounds. The appellant is much smaller and weighs approximately one hundred fifty pounds. The appellant did not even attempt to fight back. The next time Mr. Jackson played basketball at the playground was two weeks later, August 7, 1994, with James Polk and four other men. Several bystanders were watching. During the game he observed the appellant and Jones approaching through an alley. At this juncture, Jackson's fiance called to him and while he was looking back, he walked to where she was standing near a hole in the fence. When the appellant and Jones reached the middle of the basketball court, shots were fired. Jackson observed the appellant shoot one warning shot at him, he then grabbed his son, went through the hole in the fence, and ran home. While he was running he was looking back and saw the appellant's arm pointed towards him, poised to shoot, and the appellant then fired one more shot. Jackson testified that he saw the appellant fire two shots, but could not see what Jones was doing at the time. The gun held by the appellant was small, approximately a .38 caliber. - 4 - Deshaun Gill was one of the men playing basketball on the playground on August 7, 1994. He observed Jones and the appellant watching the game for a while. The two were at the foul line when they both yelled "Hey, [Jackson], let me holler at you for a minute." (T. 127.) Jackson's fiance arrived and Jackson moved toward her. As Jackson walked away, Jones pulled out a gun and began shooting. The appellant just stood next to Jones with his hand in his back pocket. At no time did Gill see the appellant with a firearm. Gill heard a total of four shots before the appellant and Jones ran away. Jones and the appellant were each wearing sweat shirts. Gill stated that the shooting occurred just after he shot the basketball and the players were running crisscross for the ball. Everyone started running with their heads down, but he stayed at the foul line. After the appellant and Jones left, he observed that Polk had been shot. He helped Polk into a car and drove separately to St. Vincent Charity Hospital. Gill testified that he knew the appellant in school and that the appellant was friends with Jones and Kevin Jefferson. The day that Jackson and the appellant had a fight, Gill was not present on the playground. He was questioned a few minutes after the incident by the appellant and Jones regarding Jackson's actions. Gill responded essentially that it was none of his business. Gill noted that the appellant did not appear to be upset by the fight. - 5 - Phillip Deal, a sophomore at the University of Cincinnati, was also on the playground the day of the shooting. The appellant and Jones approached the basketball court from the direction of McDonald's and stopped at the sideline near half court. He observed that the two were oddly dressed for the summer weather, wearing heavy jeans. His attention was diverted from the two when the basketball was thrown, but then he heard the gun. When he heard the shot he looked over and saw Jones shooting in the direction of Jackson. Jackson ducked down and exited the court through the hole in the fence. The appellant and Jones took off running. Although Deal observed Jones fire the gun, he did not actually see who shot James Polk. During the shooting he was not focusing on the appellant as he was watching the gun held by Jones. Deal testified that he heard a total of five or six shots fired, but agreed that it might have been only four. Mr. Deal was present and involved in the basketball game which resulted in the original altercation between the appellant and Jackson. The team he and Jackson were on was easily winning and the appellant was frustrated. Deal testified that Jackson threw two punches at the appellant, but could not tell if the punches connected. The appellant backed up, Jackson stopped, and Jones ran in front of the appellant. The appellant then ran across the street, but stated that he would be back. Jackson and his children left hastily. Later that evening, Deal saw the appellant and Jones - 6 - in front of Jackson's home. Once they realized that Jackson's vehicle was gone, they left. Katrina Rivers testified that James Polk was her first cousin; that she is fifteen years old; that she lives across the street from the playground at Marion Sterling School; that she knew the appellant and that he was friends with Tyrone Jones and Kevin; that on Sunday afternoon of August 7, 1994, she went to church with her family and they returned home at approximately 7:30 p.m.; that she was on her doorstep observing the basketball game at the playground; that she was able to see the playground from her door; and that as she saw the appellant and Jones enter the area she kept an eye on them because "every time Freeman and Tyrone enter the houses, there's something going on." (T. 233.) Ms. Rivers stated that Jones and the appellant entered the playground side by side and moved toward the basketball hoop. They stopped, pulled out guns, and began shooting. When the shooting began, Jackson was leaving the area. The shots were fired at Jackson, and she observed both the appellant and Jones each with a gun. She heard a total of three shots and saw her cousin as he was shot with the third bullet. Her stepfather placed Polk in the car and drove to the hospital. The appellant and Jones left together through the alley. At the time of the first altercation between the appellant and Jackson, Ms. Rivers was sitting on the wood chips at the playground. She testified that Jackson hit the appellant in the - 7 - face; that the appellant stated that he would be back and Jones stated that Jackson was "dead"; that the appellant and Jones left; and that Jackson left as well and did not return until the day of the shooting. When asked if she had ever seen the appellant with a gun before the day of the shooting, Ms. Rivers replied "Yes I have." (T. 252.) Dr. Heather Raaf, a forensic pathologist with the Cuyahoga County Coroner's Office, testified that James Polk was killed by a gunshot wound to the left side of his chest. The bullet went through the left lung, the diaphragm, the stomach, and the liver. The toxicology analysis of the body revealed neither alcohol nor drugs. Cleveland Police Detective Thomas Lucey testified that as a member of the Scientific Investigation Unit of the department, he is trained in the identification of firearms. He identified the bullet recovered from Mr. Polk's body as either a .357 or .38 (T. 285). Cleveland Police Officer Humphrey Caswell of the Crime Scene Investigation Unit testified that he was called to Jones' apartment on August 10, 1994. In the closet and on top of a paint can were located a cartridge holder and a live .38 caliber bullet. Both items were dusted for fingerprints and a latent print was lifted from the cartridge. Detective Edward Prinz testified that he is assigned to the Scientific Investigation Unit, the latent - 8 - fingerprint section. The fingerprints found on the cartridge were identified as those of Tyrone Jones. Detective Edward Kovacic and his partner Detective Denise Kovach were in charge of the investigation. After reviewing the initial reports, Detective Kovacic testified that he proceeded to the crime scene at the Marion Sterling School. No evidence was found, but a photographer was called to take pictures of the area. There were two holes in the fence surrounding the playground. The first was on the southeastern edge and was open, the second was just behind the basketball hoop and had previously been repaired. The basketball court on the playground is roughly half the size of a regulation high school court. Detective Kovacic went to the apartment of Tyrone Jones and was given entrance by Mrs. Jefferson. She permitted the officers to search, and found a black plastic cartridge holder and a live round of .38 ammunition. This find was significant because the victim was shot with a .38. The distance between the apartment and the playground was one-half of a mile. Detective Kovacic took the appellant's statement. The appellant was advised of his Constitutional rights and chose to make a statement without counsel present. The appellant's manner was calm and his statement was typed verbatim as he spoke. The appellant's statement, which he read and signed, was read to the jury. The appellant's description of the first altercation with Jackson differs from the other witnesses. The appellant stated - 9 - that Jackson hit him and he backed up. He was so upset that he began to cry and started walking home. Jackson told the appellant that he better make it home before Jackson killed him. The next time the appellant saw Jackson was the day of the shooting. The appellant stated that he first went to McDonald's and obtained something to eat and proceeded to the playground. Although he saw Jackson on the basketball court, Jackson did not see him. After finishing his food he went home and found Jones and another friend in front of his apartment. The appellant stated, "I told them that [Jackson] was up by the playground, and then Tyrone went and got the gun from his house, and then we went back up to the playground." (T. 357.) Jones and the appellant walked to the playground. They first stood outside the playground and then walked onto the court. Jones asked the appellant if he wished to fight Jackson; the appellant responded in the negative. Jackson's girlfriend was standing by the hole in the fence and she called Jackson over. The appellant testified that Jackson walked toward the fence and "this dude got between Tyrone and [Jackson], and I guess he got shot instead of [Jackson]." (T. 357.) Jones was trying to shoot Jackson and shot three or four times. The appellant and Jones left the playground and returned to the appellant's apartment. When the detectives asked the appellant why he left the playground to get Jones, he responded that "Because if [Jackson] had seen me he would probably get his gun and shoot me." (T. 358.) - 10 - The appellant was also asked why he and Jones obtained a gun and returned to the playground. He responded, "For protection in case [Jackson] had a gun." (T. 358.) When asked why Jones shot at Jackson, the appellant stated, "'Cause he was the person who was supposed to kill me, and when [Jones] asked me if I wanted to fight him, I said no. Then [Jackson] started walking away, and that's when [Jones] started shooting at him." (T. 360.) When asked if he had a gun that day, the appellant stated: "No, I didn't. I didn't have a gun. I don't own a gun." (T. 361.) No gun has been located and Jones has never been apprehended. The appellant sets forth five assignments of error. The first assignment of error: I THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF OTHER ACTS ALLEGEDLY COMMITTED BY APPELLANT. The appellant argues the court committed prejudicial error when it allowed the State to introduce "other acts" testimony during the course of the trial. Specifically, during her testimony Ms. Rivers indicated that on a previous occasion she had seen the appellant with a gun. The appellant contends that this evidence was not relevant and that it prejudiced the appellant in the eyes of the jury. Evid.R. 404(B) permits evidence of other crimes only for certain purposes: - 11 - (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This court has held that the introduction of evidence that a defendant has a propensity to carry and display firearms, may be used to establish proof of motive, intent, preparation, plan, knowledge and identity as permitted by Evid.R. 404(B). State v. Shabazz (Sept.2, 1993), Cuyahoga App. No. 63725, unreported. Such testimony is relevant under Evid.R. 401. In the case sub judice, the testimony of Ms. Rivers was not used to impeach the credibility of the appellant, nor was it used to establish evidence of a prior character trait. The complained of testimony consisted of one question and one answer and was used to demonstrate the appellant's motive, intent, preparation, plan, knowledge and identity as permitted by Evid.R. 404(B). The appellant's first assignment of error is overruled. The second assignment of error: II THE TRIAL COURT ERRED BY FAILING TO ALLOW DEFENSE COUNSEL THE OPPORTUNITY TO CONDUCT RECROSS-EXAMINATION OF CERTAIN STATE WITNESSES. The appellant contends that the trial court erred in refusing counsel the opportunity to re-cross examine certain State witnesses. The appellee asserts that the trial court has the - 12 - discretion to permit or prohibition re-cross examination, and that the trial court here did not abuse its discretion. In State v. Faulkner (1978), 56 Ohio St.2d 42, the Ohio Supreme Court held: Although a defendant must have the opportunity to cross-examine all witnesses against him as a matter of right, Kent v. State (1884), 42 Ohio St.426; Weaver v. State (1929), 120 Ohio St.97, the opportunity to recross- examine a witness is within the discretion of the trial court. Liberty Mutual Ins. Co. v. Gould (1976), 266 S.C. 521, 224 S.E.2d 715; United States v. Morris (C.A. 5, 1973), 485 F.2d 1385. Only where the prosecution inquires into new areas during redirect examination must the trial court allow defense the opportunity to recross-examine. See Alford v. United States (1931), 282 U.S. 687. An examination of the record does not reveal that the court abused its discretion. In each instance cited by the appellant, the re-direct examination of the witnesses merely clarified the testimony brought forth on cross-examination. The second assignment of error is overruled. The third assignment of error: III THE JURY'S VERDICT WAS INCONSISTENT WITH THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant argues that the jury's verdict was against the manifest weight of the evidence because the two witnesses, Mr. Jackson and Ms. Rivers, who testified that the appellant shot a firearm, were biased. The appellant further states that neither of - 13 - these witnesses was at an advantageous vantage point for viewing the scene. A reviewing court will not reverse a 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. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 231. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact. See also State v. Jenks (1991), 61 Ohio St.3d 259. Here, the jury heard ample credible evidence upon which to base a conviction. Jackson testified as to the first altercation and the threats issued by the appellant; that on the day of the shooting he observed the appellant with a weapon; and that he saw the appellant fire the gun at him. Ms. Rivers testified that she saw both the appellant and Jones pull out guns and stated that they both shot firearms. Although other witnesses did not see the appellant with a firearm, the jury was free to believe and to disbelieve, in whole or in part, each witness as it saw fit. Where competent credible evidence is present in the record, this court must not second guess the jury. The appellant's third assignment of error is overruled. The fourth assignment of error: IV THE APPELLANT WAS PREJUDICED BY INSTANCES OF PROSECUTORIAL MISCONDUCT. - 14 - The appellant argues that he was denied a fair trial because there were instances of prosecutorial misconduct during the State's closing argument. The State asserts that the comments made during closing did not rise to the level of misconduct and did not prejudice the appellant. While the parties are allowed great leeway in closing argument, certain conduct, such as commenting on the defense counsel's opinion, denigration of defense counsel, encouraging the jury to base its decision on emotion, issuing personal opinions and attacking the defendant's character, is not acceptable. State v. Keenan (1993), 66 Ohio St.3d 402. Once conduct is determined to be improper, the reviewing court must consider the effect of the conduct on the jury in the context of the entire trial. One factor is whether or not the misconduct is an isolated incident in an otherwise properly tried case. In order for a case to be reversed due to prosecutorial misconduct, the record must contain more than trivial errors. Keenan, supra. The appellant here asserts that the prosecutor's reference to the appellant as a "cold blooded little punk" (T. 516) was reversible error. However, the court sustained the objection raised by the appellant's counsel and the prosecution withdrew the word punk. Secondly, the appellant argues that the following section of the argument was improper: You were told some things on opening statement by defense counsel -- - 15 - MR. McGOWAN: Objection. THE COURT: Overruled. MR. CONWAY: -- that they would prove. There's been no testimony offered. MR. McGOWAN: Objection. THE COURT: Sustained. MR. McGOWAN: May I approach the Bench on that, Judge? THE COURT: No. MR. CONWAY: There's been no testimony offered by the State's witnesses. MR. McGOWAN: Objection. MR. BRADLEY: You said "Sustained," didn't you? THE COURT: Yes. Objection sustained. MR. BRADLEY: He's still going. THE COURT: The jury is informed that, again, there's no burden on the defense to present any defense at all. MR. CONWAY: I didn't mean to imply that. You heard the State's witnesses testify. The point I'm trying to make is, you heard the State's testimony from this witness stand. At no time did you hear any testimony offered by any of those witnesses that corroborate the fact that this individual was timid, never owned a gun, ran away from the scene crying. That's not the way it happened. When you get through all the arguments, the issue is responsibility. (T. 531-533). It must be noted that the court gave instructions to the jury that closing argument is not evidence (T. 463, 464, 540). The - 16 - court also sustained the objections of the appellant's counsel and in both instances issued curative instructions to the jury. The appellant has failed to demonstrate that these two instances of misconduct by the State were more than isolated instances in an otherwise properly tried case. No prejudice accrued to the appellant. The fourth assignment of error is overruled. The fifth assignment of error: V THE TRIAL COURT PREJUDICIALLY ERRED IN THE FORM AND CONTENT OF THE ORIGINAL JURY INSTRUCTIONS AND IN ITS REINSTRUCTION AFTER A JURY QUESTION. The appellant argues that the trial court committed reversible error when it failed to instruct the jury that the elements of the firearm specification must be proven beyond a reasonable doubt. The appellee counters that the jury was instructed that each element of all crimes must be proven beyond a reasonable doubt and that this general charge was sufficient. The appellant argues that the jury was confused by the court's response to its question regarding the jury instruction. The state must prove a firearm specification beyond a reasonable doubt. State v. Murphy (1990), 49 Ohio St.3d 206. A jury must be properly instructed as to the required standard of proof. Cage v. Louisiana (1990), 498 U.S. 39. Several courts have held that sufficient instruction is given to the jury where the general instructions affirmatively indicate that all of the - 17 - elements of the offenses charged in the indictment must be proven beyond a reasonable doubt. State v. Penson (Feb. 26, 1990), Montgomery App. No. CA-9193, unreported; State v. Blankenship (April 17, 1995), Butler App. No. CA94-05-118, unreported; State v. Norman (Jan. 20, 1995), Hamilton App. No. C-920202, unreported. Here the trial court instructed the jury that the State was required to prove each element of each offense beyond a reasonable doubt (T. 536-537). Based upon a review of the instructions to the jury in their entirety, there is no evidence that the jury was confused and the trial court's charge was adequate. The fifth assignment of error is overrule. Judgment affirmed. - 18 - 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 M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY 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 journalization, at which time .