COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68929 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION TYRONE JONES : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-313177 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public THOMAS CONWAY, ESQ. Defender Assistant County Prosecutor DANIEL SCULLY, ESQ. The Justice Center Assistant Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street N.W. Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Tyrone Jones appeals from his jury convictions for the murder of James Polk and the attempted murder of Deandre Jackson. Defendant was indicted with co-defendant Freeman Small for aggravated murder and attempted murder for a shooting in broad daylight at a school playground basketball court on August 7, 1994. The shooting followed a physical altercation approximately two weeks earlier between co-defendant Small and the intended victim Jackson. The aggravated murder charge carried a mass murder specification making it a capital offense. Each charge was also accompanied by a firearm specification. Defendant initially eluded arrest on the charges and the case against co- defendant Small proceeded to trial separately. On direct appeal this court affirmed Small's convictions for involuntary manslaughter and attempted murder. State v. Freeman Small (Nov. 2, 1995), Cuyahoga App. No. 68167, unreported. In a jury trial the prosecution presented testimony from fourteen witnesses, including six eyewitnesses, five of whom were playing basketball immediately prior to the shooting, viz., Elery Bolden, Paul Jacobs, Phillip Deal, Dechum Gill, and Deandre Jackson, the attempted-murder victim. The sixth eyewitness was the murder victim's cousin, Katrina Rivers, who observed the shooting from a nearby residence. Five of the witnesses observed - 3 - defendant shooting; only the attempted murder victim was unable 1 to identify defendant as the source of any shots. The testimony indicated that defendant and Small summoned Jackson when they arrived at the basketball court. Subsequent- ly, at least three shots were fired. When the shooting began, the basketball players started to run through a hole in the chain link fence. Before he could escape, Polk was struck in the torso by a .38 or .357 caliber bullet and died later that evening at the hospital. Defendant's aunt, Mae Jefferson, testified for the prosecution concerning a .38 caliber bullet cartridge found in her apartment. It bore defendant's right thumbprint. Five law enforcement officers testified, including Cleveland Police detectives Humphrey Caswell, Edward Prinz, Thomas Lucey and Jack Bornfeld, along with Cuyahoga County Deputy Sheriff Reginald Eakins. Deputy Coroner Heather Raaf, M.D., and trace evidence examiner Sharon Rosenberg testified concerning their examination of Polk's body. Defendant presented testimony from the following three witnesses, viz., defendant, co-defendant Small, and Randy Deal, a third witness who was not at the scene of the shooting. Defendant denied having or shooting a weapon and maintained that his former co-defendant Small shot the victim. Small denied shooting anyone. Rather, Small stated it was defendant who shot 1 Four of the five witnesses specifically identified defendant as having fired a handgun. The fifth witness stated that the person who discharged the weapon was the "stockier" of the two individuals. The record shows that defendant was larger than co- defendant Small. - 4 - a weapon, but he did not see who defendant shot. Randy Deal testified that he was not at the scene during the shooting and admitted that his prior statement to the police implicating defendant was not true. The trial court submitted the case to the jury on the lesser charge of murder of Polk and attempted murder of Jackson. The jury found defendant guilty of both charges. Defendant, through newly appointed appellate counsel, timely appeals raising three assignments of error. Defendant's first and second assignments of error raise related issues as follows: DEFENDANT WAS PREJUDICED BY HEARSAY TESTIMONY ELICITED BY THE PROSECUTION IN VIOLATION OF EVIDENCE RULE 802 AND THE APPELLANT'S RIGHT TO CONFRONT WITNESSES UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION, AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING APPELLANT'S MOTION FOR A MISTRIAL BROUGHT ON THOSE GROUNDS AND BY NOT ISSUING A CURATIVE INSTRUCTION IN THE ALTERNATIVE. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, BY DENYING APPELLANT'S MOTION FOR A NEW TRIAL [SIC] AFTER THE PROSECUTION PRESENTED INADMISSIBLE EVIDENCE OF OTHER ACTS ALLEGEDLY COMMITTED BY THE APPELLANT. These assignments of error lack merit. Defendant contends that testimony by Deputy Sheriff Eakins concerning the investigation that led to defendant's arrest constitutes reversible error. Defendant complains the testimony constituted "hearsay" and evidence of "other acts" which should not have been admitted. The disputed testimony occurred during direct examination of Deputy Eakins when the prosecutor inquired about apprehending defendant: - 5 - Prosecutor: Do you have an assignment or were you on a specific duty back on December 13 of 1994? A: Yes. Well, actually it began the day before, Monday. We developed a confidential reliable informant had [sic] who helped us or gave us information regarding the whereabouts of Tyrone Jones. During cross-examination, defense counsel inquired concerning the tip by the informant as follows: Q: Your confidential reliable informant, that you told us about, did you learn from that person how long Jones had been at 85th and Detroit in Apartment No. 3? A: How long as in how many days? Q: Yes. Had he lived there for months? A: I don't believe part of our conversation was where he was living. I think our information was that he on foot frequents that block, those blocks between West 65th and West 85th during a certain time of day. Q: You didn't in your developing the leads and so forth, you didn't learn exactly where he lived then just that he was in the neighborhood? A: Correct. Defense Counsel: Detective [sic], thank you, sir. The defense challenged a statement Deputy Eakins blurted out during re-direct examination: Q: Just one question. And that he frequents those areas on Detroit, is that correct? A: Correct. More specifically, our information was that he was conducting or rather involved in drug activity in those areas, in those blocks within that timeframe. Defense counsel did not object or move to strike this non- responsive statement. Rather, defense counsel conducted extensive additional cross-examination during which the deputy - 6 - conceded defendant did not have money, drugs or paraphernalia with him at the time of his arrest. Counsel thereafter engaged in recriminations against each other out of the hearing of the jury. The prosecutor complained that defense counsel improperly accused him in front of the jury of eliciting improper testimony. Defense counsel reiterated the claim and requested a mistrial. The trial court indicated it was going to deny the motion. Defense counsel thereafter told the trial court to "forget it," to which the trial court responded "All right." At the close of the hearing the parties discussed giving a curative instruction to the jury, but defense counsel objected. Now, on appeal, defendant complains the deputy's statement was inadmissable as "hearsay" and as evidence of "other acts" and therefore he should receive a new trial. Evid.R. 801(C) defines "hearsay" as an out-of-court statement offered to prove the truth of the matter asserted. When out-of-court statements are not offered to prove the truth of the statement, they do not constitute hearsay. It is well established, contrary to defendant's argument, that statements offered to explain a police officer's conduct during an investigation do not constitute hearsay. State v. Thomas (1980), 61 Ohio St.2d 223, 232; State v. Price (1992), 80 Ohio App.3d 108, 110; State v. Mills (Feb. 4, 1993), Cuyahoga App. No. 61780, unreported at pp. 6-7. Deputy Eakins' statement explained how the authorities discovered defendant's whereabouts prior to his - 7 - arrest and was not offered to prove that defendant was involved in illegal drug activity. Evidence that defendant committed crimes, wrongs or bad acts other than charged in the case is governed by specific rules because of its limited relevance and potential for unfair prejudice. Evid.R. 404(B) specifically prohibits the introduction of such evidence when offered to prove the character of the defendant to show that he acted in conformity therewith in connection with the crime charged. See State v. Soke (1995), 105 Ohio App.3d 226, 248-249. As noted above, Deputy Eakins' non-responsive statement concerning defendant's alleged drug involvement provided a background explanation for how the police apprehended him four months after the shooting. The statement had no tendency to prove any element of the charges against defendant in this case. However, the statement did not make use of any prohibited propensity inference, because defendant's propensity to commit drug crimes, if any, had no bearing on whether he engaged in a 2 non-drug related shooting four months earlier. The statement injected by Deputy Eakins arguably raised the potential for unfair prejudice. However, even if the statement constituted "other acts" evidence within the scope of Evid.R. 404(B), any error resulting from introduction of the statement 2 The record shows that the statement was elicited as much by defense counsel's cross-examination about the substance of the informant's tip as by the prosecutor's question on re-direct examination. - 8 - was harmless beyond a reasonable doubt, given the overwhelming evidence by five prosecution and one defense witness identifying defendant as shooting the gun. State v. Gumm (1995), 73 Ohio St.3d 413, 426; State v. Hasan (Nov. 27, 1991), Cuyahoga App. No. 59480, unreported at p. 3. Accordingly, defendant's first and second assignments of error are overruled. Defendant's third assignment of error follows: APPELLANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. This assignment of error lacks merit. Defendant contends the prosecutor committed misconduct by misleading the trial court and jury into believing that defendant was the sole person shooting the gun. Defendant complains for the first time on appeal that three questions during cross- examination of former co-defendant Small and two comments during closing argument by the prosecutor improperly indicated Small was acquitted of having been the triggerman and that there was no evidence that Small was the person who shot the victim. The record shows that defendant did not object to any of these five alleged acts of misconduct and the prosecutor's comments did not constitute plain error. State v. Caldwell (1992), 79 Ohio App.3d 667, 671-674. There is no evidence any jurors were misled or that the result of the trial would have been different if the prosecutor had not made these comments. As - 9 - noted above, the record shows that five prosecution witnesses specifically testified defendant shot the victim. Defendant's own witness, Small, likewise testified that defendant fired a handgun. Although two witnesses testified that Small also fired a handgun, no witnesses testified that Small shot Polk. Even if defendant had properly preserved these claims by objecting at trial and even if the prosecutor's comments were improper as defendant contends, defendant has failed to show resulting prejudice to establish prosecutorial misconduct. State v. Keenan (1993), 66 Ohio St.3d 402. Accordingly, defendant's third assignment of error is overruled. - 10 - 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. O'DONNELL, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .