COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68726 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION EVIN KING : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-312576 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue Cleveland, Ohio 44103 A.S. DEVER, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Evin King appeals from his jury conviction for murder in violation of R.C. 2903.02. Defendant was indicted on July 5, 1994 for purposely causing the death of his girlfriend Crystal Hudson. Defendant was appointed counsel, and his plea of not guilty was entered. The court subsequently granted defendant's motion for the appointment of an investigator. After defendant was found to be competent to stand trial, the matter ultimately proceeded to a jury trial commencing on February 15, 1995. The prosecution presented testimony from sixteen witnesses during its case in chief to support its theory that defendant strangled the victim after remaining in her apartment over the course of several days from June 20 through June 22, 1994. The victim's partially decomposed body was discovered in her bedroom closet on the morning of June 22, 1994. Defendant had stayed at the victim's apartment on prior occasions, and witnesses saw him at her apartment at various times over the course of this three- day period. One of the victim's daughters, Brandi, testified that she observed defendant with the victim on June 20, 1994. Both Brandi and the victim's other daughter, Tiiya, slept that evening at their grandmother's apartment upstairs in the building. Miss Parks, a neighbor, saw the victim alive in the hallway of the apartment building that evening. - 3 - At approximately 11:00 the following morning, June 21, 1994, Brandi returned to her apartment and saw her mother alive for the last time. Brandi observed sheets on the victim's bed and defendant watching the television in another room. Miss Parks testified that the victim's children returned later that afternoon, but that someone with a voice "like" defendant's would not open the door to let them into the apartment. At approximately 7:30 that evening, Jean Hester, one of the victim's friends, drank beer with defendant at the victim's apartment. Hester noticed an unpleasant odor and asked defendant whether he could identify it. Defendant replied that he had been cooking something. Brandi returned at approximately 9:00 in the evening, but did not see her mother or smell anything unusual, took a pair of shoes with her and deposited the keys to the apartment at her grandmother's when she left. Sally El, the victim's mother, went to the victim's apartment later that evening at approximately 11:00. She asked defendant where the victim was and whether defendant had killed her, because no one had seen her. Defendant denied killing the victim and said that he would tell the victim when he saw her that her mother was looking for her. Brandi and Tiiya returned to the apartment and let themselves in with their mother's keys the following morning on June 22, 1994. Brandi noticed an odor and discovered on the floor of her bedroom closet, her mother's nude, strangled body covered by a coat. Defendant was sitting in the apartment - 4 - watching television. Police officers testified that defendant seemed nervous and made several inconsistent statements to them after they arrived on the scene to investigate. Defendant, who belatedly filed a notice of alibi on the second day of trial, presented testimony from six witnesses. The defense maintained that defendant left the victim's apartment on June 20, 1994, before she was killed by an unidentified assailant. Defendant stated that he spent time with various other people, and did not return to the victim's apartment, until approximately 3:30 in the afternoon of June 21, 1994. Defendant testified that the victim's youngest daughter, Tiiya, "buzzed" him in through the lobby security system that afternoon, although the security system, which did not always function, had no record of this entrance. Emerson "Lucky" Kirkland testified that defendant came over to his house on the mornings of June 20 and 21, 1994 and spent time drinking. Kirkland admitted that he denied seeing defendant when the police questioned him prior to trial. Kirkland maintained that he lied when interviewed by the police, but told the truth at trial. Defendant did not call the only other witness, Maurice Pugh, identified in his notice of alibi. However, defendant presented a previously undisclosed alibi witness, his brother-in-law, Benjamin Abernathy, who stated that he saw defendant outside the apartment building at approximately 1:00 p.m. on June 21, 1994. - 5 - Defendant denied killing the victim and testified that over the course of the thirty-six-hour period he traveled to various places and consumed alcohol and controlled substances. The prosecution thereafter presented testimony from two rebuttal witnesses. The trial court submitted the case to the jury following closing arguments and its instructions. The jury found defendant guilty of murder. Defendant, represented by newly appointed appellate counsel, timely appeals raising six assignments of error. I. Defendant's first assignment of error follows: IT WAS PLAIN ERROR FOR THE TRIAL COURT, AND A VIOLATION OF DUE PROCESS UNDER THE OHIO AND FEDERAL CONSTITUTIONS, TO OMIT AN ALIBI INSTRUCTION WHERE THE APPELLANT FILED A NOTICE OF ALIBI AND PRESENTED EVIDENCE IN SUPPORT OF SUCH ALIBI. COUNSEL WAS ALSO INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT'S FAILURE TO GIVE AN ALIBI INSTRUCTION. This assignment of error lacks merit. Defendant contends his conviction should be reversed because the jury was not provided with an alibi instruction in this case. Defendant contends the failure to provide this instruction amounted to plain error and resulted from the ineffective assistance of trial counsel. Under the circumstances, we reject these claims. See State v. Miller (Mar. 12, 1992), Cuyahoga App. No. 59987, unreported; State v. McDade (Jan. 11, 1995), Montgomery App. No. 14339, unreported (each case rejecting both - 6 - claims of plain error and ineffective assistance of counsel in this context). The Ohio Jury Instructions contain the following approved alibi instruction: The defendant claims that he was at some other place at the time the offense occurred. This is known as an alibi. The word "alibi" means elsewhere or a different place. If the evidence fails to establish that the defendant was elsewhere, such failure does not create an inference that the defendant was present at the time when and at the place where an offense may have been committed. If, after a consideration of the evidence of alibi along with the evidence, you are not convinced beyond a reasonable doubt that the defendant was present at the time in question, you must return a verdict of not guilty. (Emphasis added.) Unfortunately, the record in this case shows that the trial court did not give, and defense counsel did not request, this instruction. As a result, defendant now argues for the first time on appeal that omission of the emphasized language of this instruction warrants reversal as plain error or, because his counsel failed to object, ineffective assistance of counsel. Defendant also claims the omission of this instruction violated due process. Defendant places great emphasis on the case of State v. Bridgeman (1977), 51 Ohio App.2d 105, which held that the failure to give an alibi instruction may constitute plain error. Bridgeman did not find, however, that omission of an alibi instruction per se constituted reversible error, but recognized, rather, that the determination of whether plain error occurred depends upon the circumstances of each particular case. Cases - 7 - since Bridgeman have further clarified the law governing this claim. The Ohio Supreme Court has repeatedly held that notice of "plain error" under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Adams (1980), 62 Ohio St.2d 151. Under this standard, reversal is warranted only when the outcome of the trial clearly would have been different without the error. State v. Bonnell (1991), 61 Ohio St.3d 179. See also United States v. Olano (1993), 113 S.Ct. 1770 (discussing the standard for plain error under Fed.Rule Crim.Proc. 52(b)). This court has applied these principles in numerous cases involving the omission of an alibi instruction. E.g., State v. Mitchell (1989), 60 Ohio App.3d 106, 108-109; State v. Sims (1982), 3 Ohio App.3d 331, 334-335; State v. Miller, supra; State v. Griffin (Aug. 25, 1988), Cuyahoga App. No. 54238, unreported. The record in the case at bar shows defendant received a fair trial and the jury verdict would not have clearly been different if the trial court had given the alibi instruction. We note initially that the trial court could have excluded defendant's alibi evidence entirely because his notice of alibi, in violation of Crim.R. 12.1, was not filed until the second day of trial. The trial court did not exclude this testimony and permitted defendant to present testimony from an alibi witness, - 8 - his own brother-in-law, who was not disclosed even in his belated notice of alibi. Defendant's argument fails to consider not only this generous ruling, but also defense counsel's focus on the alibi throughout the case. The jury was immersed in defendant's alibi from his counsel's opening statement, through approximately 391 pages of defense testimony comprising 40% of the trial, to the parties' closing arguments. Although the trial court did not give an instruction on alibi, the court did provide general instructions that covered points in the alibi instruction. The trial court instructed the jury that defendant was presumed to be innocent and that the prosecution had the burden of proving each element of the offense beyond a reasonable doubt. Moreover, the trial court specifically instructed the jury concerning identification of the perpetrator. The language from the Ohio Jury Instruction alibi (cited above) merely reiterates the trial court's general reasonable doubt instructions and, with more emphasis, essentially re-directs the jury to evaluate all the evidence in the case under the reasonable doubt standard. Although the trial court erred in failing to deliver the alibi instruction, omission of the instruction under the circumstances in this case did not constitute plain error. The jury necessarily found that defendant committed the murder of Crystal Hudson and rejected defendant's alibi that he was somewhere else at the time and place the murder occurred. The jury verdict would not clearly - 9 - have been different and we find no exceptional circumstances or manifest miscarriage of justice in this case. Defendant's argument concerning ineffective assistance of counsel lacks merit for the same reason. To establish ineffective assistance of counsel, defendant must show (1) trial counsel violated an essential duty to defendant, and (2) trial counsel's failure to do so resulted in prejudice to defendant. State v. Bradley (1989), 42 Ohio St.3d 136, 141-147. We need not address whether counsel violated any duty by failing to request the instruction because defendant has failed to show any 1 prejudice from the absence of the instruction. As discussed above, the record does not show that the result of defendant's trial probably would have been a different result if the instruction had been given or that omission of the instruction resulted in any prejudice. Defendant's remaining contention that the omission of an alibi instruction violated his constitutional right to due process also lacks merit. The federal courts have generally rejected this claim and held that the refusal to give such an instruction does not rise to the level of a constitutional violation even when, unlike the case sub judice, counsel timely 1 We note that at least one reviewing court has held it is the trial court's duty to give an alibi instruction when properly supported by the evidence, regardless of whether defense counsel requests the instruction or objects to its omission. State v. Miller, supra. Defendant's appellate brief appears to concede this point. (Id. at p. 20.) - 10 - requested the instruction. See Duckett v. Godinez (9th Cir. 1995), 67 F.3d 734, 744-747 (discussing cases). Accordingly, defendant's first assignment of error is overruled. II. Defendant's second and third assignments of error follow: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY PERMITTING THE PROSECUTOR TO SUGGEST IN HIS CROSS EXAMINATION OF THE APPELLANT THAT THE APPELLANT FABRICATED AN ALIBI DEFENSE WHEN THERE WAS NO GOOD FAITH BELIEF IN SUCH SUGGESTION. THE APPELLANT WAS DENIED DUE PROCESS AND HIS RIGHT OF CONFRONTATION WHEN THE STATE FAILED TO PRODUCE EVIDENCE IN SUPPORT OF SUCH FABRICATION. TRIAL COUNSEL WAS INEFFECTIVE AND THE APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS WHEN COUNSEL FAILED TO OBJECT AND FAILED TO REQUEST A MISTRIAL WHEN THE STATE IMPROPERLY CROSS EXAMINED [SIC] THE APPELLANT. These assignments lack merit. Defendant argues the prosecutor committed misconduct by questioning defendant whether he asked a witness to testify falsely concerning an alibi. Defendant further argues that his trial counsel was ineffective for failing to request a mistrial following this testimony. This court summarized the standard governing claims of improper cross-examination in State v. Boyd (May 28, 1992), Cuyahoga App. No. 60639, unreported at pp. 6-7. It is well- established that the scope of cross-examination lies within the sound discretion of the trial court and will not be reversed on appeal absent a clear showing of an abuse of discretion. Id.; citing State v. Acre (1983), 6 Ohio St.3d 140. During cross- - 11 - examination, a question may be asked if there is a good faith belief that a factual predicate for the question exists. Id.; citing State v. Gillard (1988), 40 Ohio St.3d 226, paragraph two of the syllabus. The record reveals a sufficient good faith basis for the prosecution's cross-examination in this case. Defendant's first alibi witness, Kirkland, told the police prior to trial that he had not seen defendant at the time defendant claimed he had. Kirkland changed his story at trial, however, after he had been visited by defendant's sister and court-appointed investigator. Defendant saw and spoke with the only other witness listed on his alibi notice, Maurice Pugh, when the two were in jail. Detective Matuszny subsequently spoke with Pugh prior to trial and Pugh informed him that he "was not going to lie for anyone." Although defendant subpoenaed Pugh, the defense did not present Pugh's testimony in its case and, instead, presented the testimony of a relative who had never been disclosed prior to trial. The prosecutor questioned defendant whether he had spoken to Pugh or asked Pugh to lie for him at trial. Defendant admitted speaking to Pugh in jail, but denied discussing the case or seeking false testimony. The prosecution subsequently called Pugh as a rebuttal witness. Pugh contradicted defendant by stating that defendant spoke to him about the case. That Pugh ultimately maintained that defendant did not ask him to testify falsely does not show the prosecution lacked good faith in its question. The prosecution had a good faith basis to question - 12 - defendant concerning the fabrication of his alibi because of these contradictions, because of defendant's attempt to conceal his discussions with Pugh about the case, and because of facts suggesting his denials lacked credibility. Defendant has failed to show the trial court abused its discretion by permitting such questioning. Defendant's citation to State v. Girts (July 28, 1994), Cuyahoga App. No. 65750, unreported, to support his argument to the contrary is misplaced. The prosecution in Girts asked defendant whether he had admitted substantive guilt to a stranger in jail. Defendant denied making the admission, but the prosecution did not present the jailhouse witness or psychologist who learned of the alleged admission. Regardless of the validity of Girts under the facts of that case, the case sub judice is distinguishable. Here the record shows a good faith basis for the cross-examination, there were other circumstances indicating unreliability of defendant's alibi, the prosecution presented the witness who formed the basis for the question and therefore permitted the defense to confront him, and the matter, unlike an admission, did not directly implicate defendant's substantive guilt. Defendant has likewise failed to show that his trial counsel provided ineffective assistance of counsel by not requesting a mistrial. As noted above, defendant has not shown that the trial court committed any error concerning the scope of cross- examination. Defendant's trial counsel did not breach any essen- - 13 - tial duty, therefore, by declining to raise a futile motion for mistrial, nor can he show any prejudice from the failure to do so. Accordingly, defendant's second and third assignments of error are overruled. III. Defendant's fourth assignment of error follows: THE ADMISSION OF PRIOR CONSISTENT STATEMENTS VIOLATED EVIDENCE RULE 801(D)(1)(B), WAS PLAIN ERROR AND COUNSEL'S FAILURE TO OBJECT WAS INEFFECTIVE ASSISTANCE OF COUNSEL. This assignment lacks merit. Defendant complains that during trial a child witness, the victim's daughter Brandi Hudson, and police Detective O'Malley read a statement made by Brandi to the police during the investigation. Defendant argues this hearsay statement improperly bolstered the testimony of these two witnesses. Brandi's statement to the police was properly admitted when she was testifying on direct examination. Brandi testified that the statement was based on her personal observations and was accurate when made to the police the day after she discovered her mother's body in the closet. Brandi further testified that her memory was better when she made the statement than at the time of trial, approximately eight months later. The statement constituted a "past recollection recorded" under Evid.R. 803(5) and was not inadmissable hearsay. State v. Scott (1972), 31 Ohio St.2d 1; State v. Robinson (Mar. 3, 1994), Cuyahoga App. No. 64734, unreported at pp. 10-11. Defendant had a complete - 14 - opportunity to confront and cross-examine Brandi concerning the statement, and the jury could evaluate her credibility. The record shows that Detective O'Malley testified concerning the investigation and his discussion with Brandi. Most of his testimony had nothing to do with the substance of Brandi's statement to him, although he did refer briefly on one occasion to Brandi's statement. However, as noted above, Brandi's entire statement was independently admissible. Accordingly, even if O'Malley's reference to the same matter constituted hearsay, defendant has failed to show plain error or ineffective assistance of counsel. To establish either claim, defendant must show prejudice. No prejudice resulted from O'Malley's brief reference to the same statement presented by Brandi during her testimony. Accordingly, defendant's fourth assignment of error is overruled. IV. Defendant's fifth and sixth assignments of error challenge the sufficiency and manifest weight of the evidence as follows: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION FOR MURDER. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. These assignments lack merit. Defendant argues alternately that his murder conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. - 15 - The standard governing defendant's claim that his conviction is not supported by sufficient evidence has been summarized in State v. Martin (1983), 20 Ohio App.3d 172, as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Id. at 175. After reviewing the record in compliance with this standard, we find there was sufficient evidence for the jury to find defendant purposely caused the death of Crystal Hudson in violation of R.C. 2903.02. When viewed in the light most favorable to the prosecution, the evidence showed that defendant was with his girlfriend, the victim, the last time she was seen alive and when her strangled decomposing corpse was discovered by her daughter. The circumstances of her death indicate she was killed from behind by someone she knew, because there were no signs of a struggle. According to the victim's friend Jean Hester, defendant and the victim had a history of fighting about cocaine and money. The victim told Hester before her death that defendant "jump on her." Defendant's behavior in the apartment before the decomposing body was discovered was curiously detached. Others noticed a foul odor, which defendant insisted resulted from cooking, but there was no evidence that anyone had cooked anything. - 16 - Defendant's conduct after the victim's body was first discovered continued to be suspicious. According to Brandi, defendant began pacing and did not originally go to the closet when she told him she had discovered his missing girlfriend's body. Defendant also did not try to determine whether he could help or even whether his girlfriend was dead. When Brandi repeatedly accused defendant of killing her mother, defendant did not deny it. Defendant also made statements to the police which revealed knowledge of the crime and linked him to the closet where the body was found. When questioned at the scene, defendant told the police after seeing the victim's body in the closet that "the sheet was off the body." There were no sheets in the closets. In fact, the victim's bedsheets were never found. Defendant also changed his stories concerning when he placed his jacket in the closet. Defendant originally told the police he put his jacket in the closet the evening before the victim's dead body was found and, therefore, presumably when the body was in the closet, but later said he had put it there weeks earlier. Defendant's principal complaint is that there was no eyewitness testimony or physical evidence to show he committed the murder. It makes no difference, however, that the evidence against defendant was circumstantial. State v. Jenks (1991), 61 Ohio St.3d 259. When viewed in the light most favorable to the prosecution, the evidence in the record is sufficient to show that he purposely strangled the victim. - 17 - The Martin Court summarized the standard governing defendant's remaining claim that his conviction is against the manifest weight of the evidence, as follows: 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction. Id. at 175. Defendant has failed to show the jury lost its way and created a manifest miscarriage of justice when it found that he committed the murder in this case. We note initially that the jury, when evaluating the evidence in this case, had a superior opportunity to observe the witnesses and their demeanor. Our review of the record does not lead us to conclude that this is an exceptional case in which the evidence weighs heavily against conviction. The prosecution presented a strong case. Defendant repeatedly told different versions of the events and his alibi was discredited. Under the totality of the circumstances, the evidence did not weigh heavily against his conviction. Accordingly, defendant's fifth and sixth assignments of error are overruled. 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. McMONAGLE, J., CONCURS; DYKE, P.J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .