COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67305 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : GERALD DARNELL CLARK : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 1, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-305969 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: TIMOTHY G. DOBECK, ESQ. DANIEL D. DOMOZICK, ESQ. Assistant County Prosecutor Goodman Weiss Miller Freedman 8th Floor Justice Center 100 Erieview Plaza, 27th Fl. 1200 Ontario Street Cleveland, Ohio 44114-1824 Cleveland, Ohio 44113 and GERALD DARNELL CLARK, Pro Se Serial No. 290-998 Trumbull Corr. Inst. P. O. Box 901 Leavittsburg, Ohio 44430-0901 -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Gerald Darnell Clark, appeals his conviction for the murder of thirteen-year-old Ignatius Willey, Jr. For our review, Clark assigns three errors through counsel and four 1 errors pro se. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On the evening of March 19, 1993, Dennis Vinson drove Gerald Darnell Clark to work. The route they took was Kinsman Road. Clark worked at the Shell gas station across from Gateway. During the drive, Clark and Vinson each drank a 40 ounce bottle of beer. While riding in the car Clark pulled a .32 or .38 caliber handgun out of his bag and showed it to Vinson. He told Vinson that he carried the gun for protection due to several gas station robberies. As they approached E. 75th and Kinsman, Vinson and Clark started drinking another beer. During which time, Clark tossed an empty beer bottle out of the car at E. 75th and Kinsman. He then opened the passenger side car door and fired one shot. This shot killed thirteen-year-old Ignatius Willey, Jr. who was standing in front of a local store. Thinking that he saw someone fall, Vinson asked Clark where he fired the shot. Clark claimed he fired the 1 See Appendix. -4- shot into the ground. Vinson continued to drive to Clark's place of employment. The next day, March 20, 1993, Vinson heard a news report of a shooting in the area of E. 75th and Kinsman. He called Clark and spoke with him about the news report. During the course of the conversation, Clark insisted that he fired the gun into the ground. After the conversation, Vinson called his brother Jason Henry in Colorado and told him what happened. At or about the same time, Vinson told Tina Yasenchak and Heather Foster what happened. Yasenchak urged Vinson to go to the police. Instead, on the next day, March 21, 1993, Vinson went to Clark's home to speak to Clark again. Clark again insisted that he shot into the ground. In the interim, Tina Yasenchak went to the police and told them she had information about the shooting on East 75th and Kinsman. She told the police that Vinson told her Clark had committed the murder, and she gave the police Dennis Vinson's name and the name "Darnell," which identified Clark. Dennis Vinson was arrested on April 28, 1993. Vinson refused to cooperate with the police and denied knowing anything about the shooting or about Clark. After he was questioned, Vinson was released. After his release, Vinson told his mother and family friend, Loretta Dunton, about the shooting. Thereafter, he told his cousin, Von Eric Harris, an East Cleveland auxiliary policeman, and he also told his lawyer. Again, Vinson went to Clark's home to confront him. This time he was accompanied by his cousin, Harris. Vinson told Clark he had -5- been arrested and that, if he was arrested again, he would tell the police what happened. Clark then said, "Oh, man. I didn't mean to shoot that boy." Harris witnessed this statement. Clark also said he got rid of the gun. On January 10, 1994, the police arrested Clark. Clark denied involvement in the shooting and denied knowing Vinson. Vinson was rearrested on January 17, 1994. Vinson gave a statement implica- ting Clark in the shooting and describing his own involvement in it. Vinson gave a second statement to the police on March 25, 1994 informing them that Von Eric Harris heard Clark admit to the shooting. Clark and Vinson were charged with aggravated murder. Vinson pleaded guilty to involuntary manslaughter and agreed to testify against Clark. Clark went to trial on the charge of aggravated murder with firearm and violence specifications. At trial, Vinson gave his account of the shooting and informed the jury that Clark shot the boy. Vinson testified that he told eight people about the shooting including Tina Yasenchak, family-friend Loretta Dunton, and his cousin Von Eric Harris. During cross-examination, the defense questioned Vinson about his deal with the prosecution and elicited testimony that Vinson hoped to receive probation as a result of his decision to testify against Clark. The prosecution then called Tina Yasenchak who corroborated Vinson's testimony that he told her about the shooting a day or two after it happened. Loretta Dunton testified and confirmed that Vinson spoke to her about the shooting shortly after his initial -6- arrest and release. Harris confirmed that Vinson told him about the shooting after he was released. He also testified that he heard Clark admit to the shooting. The coroner testified that Ignatius Willey died from a single gunshot wound to the back. A .32 caliber bullet was removed from his body. Due to the absence of fouling and stippling around the wound, she concluded the bullet was fired from a distance. She also concluded that, because the bullet was not deformed, it had not encountered any intermediary obstruction. The state's evidence also included testimony by Clark's co- workers, Rosemary Billings and Lewmie Irons who stated they had seen Clark with a gun. Clark testified and denied any involvement with the shooting. On cross examination, he admitted having a gun for protection but described it as a chrome .25 or .22 automatic. He also admitted, in response to the prosecutor's question, that he was collecting food stamps around the time of the arrest. The jury found Clark not guilty of aggravated murder but found him guilty of murder. He was sentenced to consecutive terms of 15 years to life for murder and three years on the firearm specification. He now appeals. In his first assignment of error, Clark asserts he was deprived of his constitutional rights to a fair trial and due process of law when the trial court permitted the state to introduce prejudicial hearsay testimony. Clark argues this testimony was used to bolster the credibility of Vinson, the -7- state's key witness. Specifically, he argues Vinson was allowed to testify that he told eight people that Clark shot the boy at E. 75th and Kinsman, and five of those witnesses were allowed to testify for the state to verify that Vinson indeed told them that Clark shot the boy at E. 75th and Kinsman. This assignment of error lacks merit. The question before this court is whether this testimony is prejudicial hearsay or proper rehabilitative testimony of prior consistent out-of-court statements. A prior consistent out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and the prior statement is consistent with his in-court testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence of motive. Evid.R. 801(D)(b)(1). During the cross-examination of Vinson, the defense asked him about his plea bargain to involuntary manslaughter, his expectations of probation, and his prior inconsistent statements to the police. Implicitly, the defense charged Vinson with recent fabrication. It implied Vinson's motive to lie was enhanced by the plea he received and the promise of probation. In response to these charges, the state called five of the witnesses who Vinson claimed he had consistently told that Clark shot the boy on E. 75th and Kinsman. Under Evid.R. 801(D)(b)(1) this testimony was properly admitted as non-hearsay, prior consistent witness statements. Vinson was a witness and subject to cross-examination. He had made prior consistent statements, and he was charged with recent -8- fabrication. Consequently, the state could rehabilitate him with testimony of his prior consistent statements. Recently, an appellate court took the position that "The courts in Ohio have generally interpreted this rule as including only those prior consistent statements which were made before the prior inconsistent statements or before the existence of any motive to falsify testimony." State v. Nichols (1993), 85 Ohio App.3d 65, 71 citing State v. Mullins (1986), 34 Ohio App.3d 192, 196-97, 517 N.E.2d 945, 950- 951; State v. Smith (1986), 34 Ohio App.3d 180, 191, 517 N.E.2d 933, 944; State v. Bock (1984), 16 Ohio App.3d 146, 148, 16 OBR 54,155,474 N.E.2d 1228, 1230. In footnote five of State v. Nichols, the court points out that this is not the rule in other states. The issue is not time but that the prior consistent statements were indeed made. Regardless, the facts of our case are consistent with Nichols. Therefore, applying the Nichols' standard to these facts, we know Vinson was ultimately charged with the aggravated murder of the boy. Later, he pleaded guilty to manslaughter and was awaiting sentencing. He explained he expected probation for his agreement to testify against Clark. This information was solicited by the defense on cross-examination. The state at this point concluded it needed rehabilitative rebuttal testimony, i.e., Vinson's prior consistent statements. Under the rule, once the court finds rehabilitation necessary, it is implied that it believes the allegation of a motive to -9- fabricate has been made. Consequently, the sole question remaining is whether the prior consistent statement occurred before the alleged motive to fabricate. Here, we conclude if Vinson had a motive it manifested after January 17, 1994, the day of his arrest. The record shows the grand jury had indicted him on January 13, 1994 for aggravated murder with a firearm specification. Finally, Vinson's prior consistent statements were all made before he had a motivation to fabricate. Vinson said he told Tina Yasenchak on March 21, 1993 that Clark shot the victim. On April 28, 1993, Vinson was arrested. The arrest was in response to information provided to the police by Yasenchak. However, Vinson refused to cooperate with police and was released after questioning. All of Vinson's other statements to friends and family about the shooting were made between April 28, 1993 and January 17, 1994. We find that Vinson's motivation to lie did not arise until January 17, 1994 when he was rearrested after having been indicted for aggravated murder in connection with the shooting. In all statements he made before January 17, 1994, Vinson remained consistent that Clark committed the shooting, despite his refusal to tell the police what happened. The defense argues Vinson had a motive to lie at the moment the shooting occurred and anything he said to the witnesses occurred after the manifested motivation. We disagree. Even after his initial arrest, Vinson was released without being charged. He was not rearrested until January 17, 1994. At that time, he had -10- been indicted for aggravated murder. The statements he made between April 28, 1993 and his January 17, 1994 rearrest were all made before he learned he had been indicted for aggravated murder. Consequently, we conclude that Vinson's statements to all of the witnesses occurred before any alleged motive to fabricate, and under Evid.R. 801(D)(b)(1), any prior statement of Vinson was non- hearsay and properly admitted when it was used to rehabilitate him after a charge of fabrication had been made by the defense. Clark's first assignment of error is overruled. In his second assignment of error, Clark asserts the trial court erred by allowing the state to ask questions about Clark's prior possession of a gun and about whether he received food stamps while employed. However, the record reveals the defense did not object to these questions. "It is well established that the failure to object to an error in a criminal proceeding precludes the issue from being raised on appeal unless it rises to the level of plain error. State v. Underwood (1983), 3 Ohio St.3d 12,13. An alleged error does not rise to the level of plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Wickline (1990), 50 Ohio St.3d 114,120. Furthermore, `the plain error rule is to be applied with utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice.'" State v. Cooperrider (1983), 4 Ohio St.3d 226. -11- The plain error rule is inapplicable to this case. There is no indication from the record that Clark would have been acquitted if not for the testimony about the prior gun possession and the food stamps. The state's evidence included the testimony of Vinson who was with Clark when the shooting took place. Vinson testified that he saw Clark shoot the victim. In light of the other evidence presented of Clark's guilt, we find that the outcome of the case would not have been different absent the challenged questions. Clark's second assignment of error is overruled. In his third assignment of error, Clark asserts the state's evidence was insufficient to establish that he acted purposefully. However, the state produced evidence that Clark fired a gun from a car that was passing through a residential area. Vinson testified many pedestrians were outside at the time. A person is presumed to have intended the natural consequences of his actions, even if those actions produce an unintended result. We don't know if Clark specifically intended to shoot the boy. What we do know is he fired his gun in a area where many pedestrians were walking. Because it was a natural consequence of firing a gun into a populated area that someone would be shot, Clark can be said to have acted purposefully within the meaning of the murder statute. Clark's third assignment of error is overruled. We turn next to Clark's third pro se assignment of error. Clark argues he was denied his constitutional right to a speedy trial. R.C. 2945.71(C)(2) provides that a person charged with a felony must be brought to trial within two hundred seventy days of -12- his arrest. Under R.C. 2945.71(E), each day the accused is held in jail is counted as three days. In this case, Clark remained in jail after his arrest and until the time for trial. Therefore, the state had ninety days to bring him to trial. The record reveals that Clark was arrested on January 10, 1994. However, the date of arrest is not counted in a speedy trial computation. State v. Steiner (1991), 71 Ohio App.3d 249. The time period began to run on January 11, 1994. Ninety days from January 11, 1994 was April 10, 1994. However, April 10, 1994 was a Sunday and it has been held that when the last day for trial is a Sunday, Crim.R. 45 extends the time period until the end of the following day. State v. McCornell (1993), 91 Ohio App.3d 10. Crim.R. 45(B) provides that if the last day of a time period is a Sunday, the time period runs until the end of the next day that is not Saturday, Sunday, or a legal holiday. The trial started on Monday, April 11, 1994. Consequently, we find that Clark's speedy trial rights were not violated. Clark's third pro se assignment of error is overruled. In his second pro se assignment of error, Clark argues that the trial court failed to issue findings of fact on his motion in limine and his motion to suppress. The record reveals that Clark filed a motion in limine on Jan 26, 1994 and a motion to suppress April 12, 1994. Although it is error for the trial court not to rule on pre-trial motions prior to trial, such error is harmless unless it adversely affects substantial rights of the defendant. State v. Tolbert (1990), 70 Ohio App.3d 372. -13- In this case, the trial court's failure to rule on the motion to suppress was not prejudicial to Clark. A motion to suppress may be overruled without a hearing where the motion consists of nothing but a boilerplate recitation of all the possible objections to the admission of evidence. Bryan v. Fox (1991), 76 Ohio App.3d 607. See also State v. McLemore (1992), 82 Ohio App.3d 541. A review of Clark's motion to dismiss reveals no factual allegations whatsoever, only a general recitation of legal objections to evidence. Because Clark failed to provide any factual allegations in support of his motion to suppress, he has failed to demonstrate that any of his substantial rights were affected by the trial court's failure to rule on his motion before trial. Consequently, its denial without a hearing was not erroneous. See McLemore at 545. Clark's motion in limine sought to exclude from the state's opening statement any mention of prior statements made by its witnesses. Though Clark maintained that the statements made by Vinson to several of his friends were hearsay, he failed to file a brief in support of his motion and again made no factual allegations that would justify relief. In a discussion before the trial began, the state agreed not to mention the substance of Vinson's conversations with the witnesses. During opening statement, no mention was made of the substance of the conversations. Because Clark obtained the relief he sought in the motion in limine, the trial court's failure to -14- rule on the motion did not amount to reversible error. Clark's third assignment of error is overruled. In his first pro se assignment of error, Clark argues that trial counsel erroneously failed to seek dismissal of the indictment on speedy trial grounds and to request findings of fact on his motion in limine and his motion to suppress. Because we find no error in the trial court's rulings on any of the above issues, this assignment of error is overruled. -15- Judgment affirmed. 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. PATTON, C.J., CONCURS. HARPER, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION) PATRICIA ANN BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. -16- APPENDIX Clark's assignments of error. I. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE STATE INTRODUCED PREJUDICIAL HEARSAY TESTIMONY AGAINST HIM TO BOLSTER THE CREDIBILITY OF THE STATE'S KEY WITNESS. II. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE STATE IMPROPERLY IMPEACHED APPELLANT WITH EXTRINSIC EVIDENCE AND INTRODUCED BAD ACTS EVIDENCE. III. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THE PURPOSE ELEMENT IN MURDER. Clark's pro se assignments of error: I. DEFENDANT/APPELLANT WAS DEPRIVED THE EFFECTIVE ASSISTANCE OF "CONFLICT-FREE" REPRESENTATION IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO STATE ESSENTIAL FINDINGS OF FACT PURSUANT TO OHIO RULES OF CRIMINAL PROCEDURE, RULE 12(E) THEREBY DEPRIVING DEFENDANT/APPELLANT DUE PROCESS AS GUARANTEED BY AND THROUGH THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. DEFENDANT/APPELLANT WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS PROVIDED UNDER OHIO REVISED CODE, SECTIONS 2945.71 AND 2945.73. (sic) IV. OTHER ERROR (sic) APPEAR IN THE RECORD THAT ARE NOT SPECIFICALLY RAISED AND SET FORTH ON THIS APPEAL BUT CONSTITUTE "PLAIN-ERROR" AFFECTING SUBSTANTIAL RIGHTS PURSUANT TO OHIO RULES OF CRIMINAL PROCEDURE, RULE 52(B). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67305 STATE OF OHIO : : : PLAINTIFF-APPELLEE : D I S S E N T I N G : v. : O P I N I O N : GERALD DARNELL CLARK : : : DEFENDANT-APPELLANT : DATED: FEBRUARY 1, 1996 HARPER, J., DISSENTS: I respectfully dissent from the majority's affirmance of appellant's conviction. Specifically, a review of the record demonstrates that his first and second assignments of error should be sustained in part, thereby requiring a reversal of his conviction and a remand of the action for new trial. Appellant outlines in his first assignment of error how the police came to arrest him in January 1994. The police first arrested Vinson about a month after the shooting; he denied any knowledge of the incident and was released. At the same time, he admitted his and appellant's involvement to several other people. It was not until January 1994 when he reported the events of March 19, 1993 to the police and personally implicated appellant in the decedent's shooting. Though Vinson denied that he had any knowledge that appellant either possessed a gun on March 19, 1993 or intended to shoot it, until after the shot was fired, Vinson - 2 - pled guilty to involuntary manslaughter. Vinson was not sentenced at the time of trial, but possessed a chance of receiving probation. In appellant's first assignment of error, he attacks the state's introduction of hearsay testimony. Vinson was the only individual who directly witnessed appellant's involvement in the decedent's shooting. He thereafter told eight other people about appellant's involvement. Appellant argues that the use of third parties' testimony to reveal appellant's involvement as communicated to them by Vinson denied him a fair trial because the state only used this testimony to bolster the credibility of Vinson, an admitted liar. Appellant initially refers to Vinson's ability to testify that he told eight other people about appellant's involvement in the decedent's shooting. One of these individuals was Yasenchak who then reported the incident to the police, and identified Vinson and "Darnell." She also testified at trial as follows in relevant part: Q. The first conversation you had with Dennis Vinson was immediately after, the next day after the shooting occurred, is that correct? A. Yes, it was. Q. And on that day, Dennis Vinson told you that Darnell Clark shot that little boy? A. Yes, he did. Q. He didn't say somebody else shot the little boy. He said Darnell said, "Watch me shoot that nigger?" - 3 - A. Yes. Yasenchak spoke with Officer Torok after she talked with Vinson. Torok testified at trial about his conversation with Yasenchak: Q. And did you note the name of the suspect that Miss Yasenchak told you? A. She told me that she had talked with Dennis Vinson, who had given her information regarding this. And that Dennis Vinson said that the person who had done this shooting -- MR. MARTIN: Objection. *** THE COURT: Sustained. *** Q. Did you then learn of the second person who was involved with this? A. The name Darnell was mentioned as a suspected person. She didn't know the last name. Vinson also spoke with Loretta Dunton and implicated appellant as the decedent's shooter. Dunton in turn testified as follows regarding her conversation with Vinson: Q. Did he indicate whether or not he was by himself when the crime took place or with another? A. No, sir, he was with someone else. Q. Did he give you that person's name? A. He did. Same name as Darnell. *** Q. Who did he say shot the boy? A. He said Darnell shot the young man. - 4 - The last person to testify as to what Vinson told him was Harris: Q. Did he tell you about the child being killed? A. He told me what happened on that night, about him and Darnell driving down Kinsman. MR. MARTIN: Objection. THE COURT: Overruled. *** Q. Go on. Please continue. What did he say? A. He told me about him and Darnell driving down Kinsman. When he was driving down Kinsman, he told me that Darnell said: "Watch this." And he told me that Darnell went and opened the door and fired a shot out of the door. The last testimony to be highlighted by appellant in support of this assignment of error is the following passage offered by Det. Moore: Q. Okay. And did he [Adrine] indicate to you where he had gotten this information? Detective Parker Adrine, did he indicate where he had got it? A. No, he did not. Q. What was it? A. That Gerald Vinson -- correction. Dennis Vinson had been with a male by the name of Darnell, and who, in fact, had been together when the Defendant here shot the victim. *** Q. All right. Now, in the statement that Dennis Vinson gave to you, now the four-page written statement - 5 - of January 18th, did he indicate who actually shot the boy at the intersection? A. This is correct, he did. Q. Who did he say did that? A. The Defendant, Mr. Gerald Darnell Clark. Evid.R. 801(C) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is generally inadmissible under Evid.R. 802 unless rule, statute or constitutional provision provides otherwise. Errors which relate to the trial court's admission of hearsay evidence are reviewable under Evid.R. 103(A) and Crim.R. 52(A). Such errors are, therefore, harmless unless the record demonstrates that the errors affected a party's substantial rights. See, Bostic v. Connor (1988), 37 Ohio St.3d 144; State v. Sage (1987), 31 Ohio St.3d 172; Staff Note to Evid.R. 103(A). As the Supreme Court of Ohio stated in State v. Kidder (1987), 32 Ohio St.3d 279, 284: In the final analysis, the evidence in favor of conviction, absent the hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt. Even when the error does not encompass a constitutional question, the reasonable-doubt rule of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 is still applicable in Ohio. See, State v. Johnson (1994), 71 Ohio St.3d - 6 - 332, 339; State v. Sorrels (1991), 71 Ohio App.3d 162, 165. A reviewing court, therefore, when determining whether an error in the admission of evidence is harmless, must find there is no reasonable probability that the evidence may have contributed to the defendant's conviction. See, Johnson; State v. Bayless (1976), 48 Ohio St.2d 73. In the instant case, there is no doubt that Yasenchak's, Dunton's and Harris' testimony included hearsay when they related that Vinson told them that appellant shot the decedent. This testimony contained statements made by someone other than themselves, Vinson, to prove that appellant shot the decedent and to consequently prove the truth of Vinson's testimony. Though Harris offered testimony that appellant directly admitted his involvement to him, the fact is that Yasenchak's and Dunton's testimony could have affected the jury's verdict. Harris, Yasenchak and Dunton clearly corroborated Vinson's implication of appellant as the shooter. The case against appellant is not overwhelming. The only direct evidence linking appellant to the shooting is Vinson's testimony that he was with appellant at the time. There simply was no extrinsic evidence to establish who shot the decedent. The entire case turned on the credibility of the witnesses and who the jurors believed was telling the truth. Vinson himself was a suspect in the incident, and eventually pled guilty to involuntary manslaughter. It was him who directed the police and - 7 - other individuals to appellant, and the defense made it perfectly clear that it questioned Vinson's motive. Since the inadmissible hearsay could have affected the verdict of guilty rendered against appellant, I find that the testimony of Yasenchak, Dunton and Harris set forth supra was not harmless beyond a reasonable doubt. See, Johnson (inadmissible hearsay of three witnesses corroborated other suspect's testimony, bolstered his credibility, and thus was not harmless beyond a reasonable doubt); State v. Fawn (1983), 12 Ohio App.3d 25 (mother's testimony that daughter told her the defendant told her he was having intercourse with the victim was inadmissible hearsay because it was offered to prove the truth of the daughter's statement). Compare, State v. Williams (1988), 38 Ohio St.3d 346 (admission of hearsay harmless beyond a reasonable doubt because witness' testimony merely corroborated that of other witnesses and the remaining evidence, had the hearsay been excluded, constituted overwhelming proof of defendant's guilt). The state submits that Vinson's statement to Yasenchak, Harris and Dunton that appellant shot the decedent was admissible through their testimony under Evid.R. 801(D)(1). In other words, the state argues that this evidence was not hearsay because it was used to rehabilitate Vinson and the accusation that he fabricated appellant's guilt for his own selfish motive. Evid.R. 801(D)(1) provides, in part, that a prior consistent statement of a witness who testifies at trial is not hearsay if - 8 - it "is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." The Franklin County Court of Appeals recognized in Motorists Mut. Ins. Co. v. Vance (1985), 21 Ohio App.3d 205 that the rule does not permit the introduction of all prior consistent statements: Obviously, the relevancy of many such statements would be suspect--an improbable story is not made more probable simply because it is repeated. What the rule permits is the rehabilitation of a witness whose credibility has been attacked by means of a charge that he recently fabricated his story or falsified his testimony in response to improper motivation or influence, by admitting into evidence a consistent statement made by the witness prior to the time of the suggested invention or of the emergence of the motive or influence to invent or falsify, as tending to rebut the charge. Id., 207. See, also, State v. Lopez (1993), 90 Ohio App.3d 578; State v. Nichols (1993), 85 Ohio App.3d 65; State v. Mullins (1986), 34 Ohio App.3d 192; State v. Smith (1986), 34 Ohio App.3d 180; State v. Bock (1984), 16 Ohio App.3d 146. In the instant case, though there is an allegation that Vinson fabricated his story just prior to pleading guilty to involuntary manslaughter so as to receive a reduced sentence on a reduced charge, the fact is that the motivation for Vinson to implicate appellant as the shooter arose on the date of the incident. Vinson's statement to Yasenchak, Harris and Dunton that appellant was the shooter, therefore, was not within the coverage of Evid.R. 801(D)(1). Appellant, in his second assignment of error, first refers to the state's eliciting from Billings and Irons, appellant's co- - 9 - workers at the gas station, that they observed appellant with a gun at times not related to March 19, 1993. Appellant next claims that the state sought to discredit him by inquiring whether he was a food-stamp recipient. He then attacks the state's rebuttal evidence that countered appellant's testimony regarding his duties at the gas station and the reporting of the attempted robbery in the Winter of 1992. Appellant argues that the introduction of this "bad acts" and extrinsic evidence denied him his constitutional right to a fair trial. In order for other acts to be admissible, two conditions must be met. First, there must be substantial proof that the alleged other acts were committed by the defendant. Second, the evidence must tend to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evid.R. 404(B); R.C. 2945.59; State v. Lowe (1994), 69 Ohio St.3d 527, 520, citing State v. Broom (1988), 40 Ohio St.3d 277, 282-283. See, also, State v. McCornell (1993), 91 Ohio App.3d 141. Evidence of prior acts may still be admissible even if different from the charged offense. See, Jamison; Broom (both noting that the words "like" or "similar" do not appear in either Evid.R. 404(B) or R.C. 2945.59). The Supreme Court of Ohio, however, held in State v. Wilkinson (1980), 64 Ohio St.2d 308, that the prior act must be "inextricably related" to the crime - 10 - charged before it is permitted to be introduced into evidence. See, State v. LeFreniere (1993), 85 Ohio App.3d 840. The common law with respect to evidence of other acts of wrongdoing is codified in Evid.R. 404(B) and R.C. 2945.59. The standard for admissibility under these provisions is strict, with admissibility construed against the state. See, Lowe; State v. Jamison (1990), 49 Ohio St.3d 182; State v. Burson (1974), 38 Ohio St.2d 157. In the present case, the state elicited testimony in its case in chief that appellant was seen on prior occasions with a gun in his possession. The state did not introduce any guns into evidence, including the gun which was used to shoot the decedent. Whether appellant possessed a gun on occasions prior to March 19, 1993 is irrelevant to whether he possessed and then fired a gun at the decedent on March 19, 1993. The testimony offered by Billings and Irons was, therefore, inadmissible under Evid.R. 404(B). LeFreniere (in a prosecution for murder, a defendant's prior acts of pointing a gun at people, without firing it, are not admissible under Evid.R. 404[B]). Appellant also takes issue with the state's cross- examination of him regarding whether he was a recipient of food stamps. The state claims this line of questioning was employed "for the sole purpose of testing the defendant's credibility of being employed while collecting Relief." The state argues that this purpose was permitted under Evid.R. 611(B). - 11 - The Supreme Court of Ohio found that a cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate exists for the question. State v. Gillard (1988), 40 Ohio St.3d 226. The Gillard court quoted that portion of State v. Williams (1977), 51 Ohio St.2d 112, where it stated "[t]he attempt to communicate by innuendo through the questioning of witnesses when the questioner has no evidence to support the innuendo is improper." Williams, 119. See, also, State v. Hunt (1994), 97 Ohio App.3d 273; State v. Daugherty (1987), 41 Ohio App.3d 91; 1 ABA Standards for Criminal Justice (2 Ed.1980 and 1986 Supp.), 3.91, Standard 3-5.9; DR 7-106(C)(1) of the Code of Professional Responsibility. The state herein admits that its question regarding whether appellant was a food stamp recipient was a "test." The state never offered any evidence in the presence of the jury that appellant was employed at the same time he was receiving food stamps; it merely, through innuendo, meant to show that appellant defrauded the county. Under these circumstances, appellant correctly characterizes the state's question as improper under Evid.R. 608(A) and 611(B). I recognize that appellant failed to object to Billings' and Irons' testimony regarding his possession of a gun and the state's questioning him about the food stamps. Appellant effectively waives these errors on appeal. However, as stated supra, appellant's conviction stemmed directly from the jury's - 12 - determination of the witnesses' credibility, both the state's and the defense's witnesses. Under these circumstances, and in light of my conclusion in appellant's first assignment of error, I am not prepared to say that the cumulative effect of the state's improper questioning of two state's witnesses and appellant did not affect appellant's substantial rights, the appropriate review .