COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69296 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JUSTIN WOODS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-314142. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Michael Zidar Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Albert A. Giuliani, Esq. 410 Leader Building Cleveland, Ohio 44114 SWEENEY, JAMES D., P.J.: Defendant-appellant Justin Woods appeals from his conviction, after a trial to the bench, for aggravated assault in violation of R.C. 2903.12. The appellant was sentenced to a term of incarceration of eighteen months to five years. The sentence was suspended and the appellant was placed on probation for two years. As a condition of his probation the appellant was ordered to pay $10,150.00 in restitution, at the rate of not less than $250.00 a month. In the early morning hours of August 11, 1995, an altercation occurred outside a bar known as the Billy Club in Lyndhurst, Ohio. Originally, the State prosecuted five defendants for felonious assault for their part in this altercation. Of the five men who were tried together, two were dismissed pursuant to Crim.R. 29, and a third was acquitted. The appellant and his cousin, Anthony DeJohn, were convicted of aggravated assault. Although the appellant and DeJohn filed separate appeals, an examination of the appellate briefs reveals that both men are represented on appeal by the same counsel who filed the same assignments of error and placed the same arguments before this court. Each appeal was assigned to a separate panel of judges and was heard during different weeks. In the case sub judice, this court has independently reviewed and examined the entire record on appeal, including the trial court's file, the transcripts, and the appellate briefs filed on - 3 - behalf of the appellant and the State. Based upon this independent review, this court affirms the trial court's conviction of the appellant for the reasons set forth in State v. DeJohn (June 6, 1996), Cuyahoga App. No. 69297, unreported, attached hereto and adopted herein. - 4 - 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. PATRICIA A. BLACKMON, J., and TIMOTHY E. McMONAGLE, 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 it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69297 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY DEJOHN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JUNE 6, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-314142 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. ALBERT A. GIULIANI, ESQ. Cuyahoga County Prosecutor 410 Leader Building MICHAEL ZIDAR, ESQ. Cleveland, OH 44114 Assistant County Prosecutor Justice Center--8th Floor 1200 Ontario Street Cleveland, OH 44114 - 2 - PATTON, J. Defendant Anthony DeJohn appeals from a judgment of conviction on one count of aggravated assault, in violation of R.C. 2903.12. His assigned errors contest (1) the court's refusal to sever trial of his codefendants, (2) discovery violations by the state, (3) the sufficiency of the evidence, (4) the weight of the evidence, (5) court-ordered restitution, and (6) the court's refusal to grant a new trial. The charges were tried to the court. The victim of the assault and his friend were in a local bar, drinking and singing karoke. Defendant, three of his brothers, and a cousin were in the 1 bar playing pool. While singing a song, one of defendant's brothers began heckling the victim. The victim recognized the brother from an incident occurring several weeks beforehand in which the brother accused the victim of trying to pick up the brother's girlfriend. As the singing continued, the brother's heckling became more pointed and personal. The victim returned to his table where he and his friend prepared to leave the bar. Defendant and his four companions surrounded the victim's table and confronted him. A scuffle ensued and the group pinned the victim against a short wall 1 All five were indicted on felonious assault charges. The court granted motions for judgment of acquittal to defendants Benjamin and Michael DeJohn. The court found defendant Timothy DeJohn not guilty. The court found the cousin, Justin Wood, guilty of the lesser included offense of aggravated assault. See State v. Wood, Docketed Appeal No. 69296. - 3 - dividing tables in the bar area. One of the brothers grabbed the victim's friend by the back of the hair and forcibly removed him from the bar. A barman and the disc jockey operating the karoke intervened and broke up the scuffle. No punches had been thrown. The barman told defendant and his family members to leave the bar. Defendant and one of his brothers complied, and as they left the bar, the brother yelled to the victim, "you're next, you pussy." At some point after defendant and his brother left the bar, the barman called the police. A few minutes later, the barman and the disc jockey escorted the victim to his car. When the victim met his friend in the parking lot, he saw the friend bleeding from a beating. The disc jockey then returned to the bar, the barman remained outside. The victim became enraged and approached the front entrance of the bar. The barman stopped him and told him to go home in order to avoid further trouble. The victim said that his friend left his keys and identification in the bar and he needed to go inside to get them. As the victim neared the entrance to the bar, he saw defendant and his family members standing in a group. He demanded to know who hit his friend, promising to "kick their ass." Some of the brothers taunted the victim, and someone asked, "whose ass you gonna kick?" The victim and the cousin simultaneously set upon each other. At that point, defendant grabbed the victim from behind and lifted - 4 - him off the ground. He was slammed into the ground and "pummelled" with repeated kicks to the face. Others in the group began beating and kicking the victim's friend. When the fighting started, the barman went back inside to call the police. He returned to find the victim laying on the ground in a pool of his own blood. Defendant and his family were gone. The beating crushed both of the victim's cheeks, and left him with numerous cuts and bruises. Reconstructive surgeons ultimately placed two titanium plates in the victim's face. Defendant presented three witnesses who collectively testified that neither defendant nor his brothers had anything to do with causing the victim's injuries. The court found defendant guilty of the lesser included offense of assault. The court noted the victim helped start the fight outside the bar, and had an opportunity to leave; however, once rendered defenseless, defendant continued to kick and beat the victim long after the danger passed. I The first assignment of error complains the court erred by failing to grant defendant's motion for severance. Defendant made the motion after the start of trial, when he first learned of the existence of videotaped statements by his brothers Michael and Benjamin. He objected to the use of the videotaped statements, saying "there may have been an argument with respect to severance - 5 - at the beginning of the case yesterday with respect to these two gentlemen." Crim. R. 8(B) permits the joinder of defendants if they are alleged to have participated in the same act or transaction constituting the offense. A defendant may seek relief from prejudicial joinder under Crim.R. 14, and the court may order severance of defendants, or provide such other relief as justice requires. A defendant claiming error in the court's refusal to sever trial of multiple defendants has the burden of affirmatively showing that his rights were prejudiced. State v. Torres (1981), 66 Ohio St.2d 340, 343; State v. Brooks (1989), 44 Ohio St.3d 185, 193. This requires the defendant to furnish the court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial. Torres, supra. We review the trial court's decision for an abuse of discretion, keeping in mind that joinder of trials and defendants is favored in the law for, among other things, conserving judicial resources and minimizing the possibility of inconsistent results at trial. State v. Thomas (1980), 61 Ohio St.2d 223, 225. Defendant claims the state's failure to produce the videotaped statements of the co-defendants severely limited his ability to present a more specific argument relating to severance. He appears - 6 - to claim that had he known the exculpatory nature of the co- defendants' statements prior to trial, he would have called those defendants to the witness stand. We find this argument too generalized to stand as proof that the trial court abused its discretion by denying the motions to sever. At no point has defendant been able to point out exactly which portions of the videotaped statement were exculpatory. Under similar circumstances, the court in State v. Perod (1968), 15 Ohio App.2d 115 rejected mere allegations of prejudice resulting from a defendant's assertion that he would have called a co-defendant to testify. Id. at 118. We agree with Perod and find that absent a more particularized showing, defendant failed to demonstrate that his claim of prejudice was genuine. Moreover, the state correctly notes the defense could have called both Michael and Benjamin DeJohn as witnesses since the court dismissed the charges against them pursuant to a judgment of acquittal made at the close of the state's case-in-chief. Hence, the purported grounds for error did not exist. The first assignment of error is overruled. II The second assignment of error claims the state willfully failed to provide defendant with discovery when it did not divulge the existence of videotaped statements by Michael and Benjamin DeJohn until trial commenced. Although defendant did not use the videotaped statements, he nonetheless maintains the late disclosure - 7 - of the videotapes prejudiced his ability to prepare a defense which would enable him to utilize the statements of the co-defendants. The state claims it did not have prior notice of the videotaped statements, but nevertheless concedes it remains responsible for divulging information possessed by law enforcement officers working within the prosecutorial machinery. Kyles v. Whitley (1995), 115 S.Ct. 1555. The state maintains, however, that it disclosed the substance of the co-defendants' statements through written summaries provided by the police; therefore, defendant can show no prejudice from hearing the videotapes on the day of trial. Crim. R. 16 provides in relevant part: (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. (a) Statement of defendant or co- defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: (i) Relevant written or record statements made by the defendant or co-defendant, or copies thereof; *** In State v. Parsons (1983), 6 Ohio St.3d 442, the court found that a trial court does not abuse its discretion by permitting evidence to be admitted under Crim.R. 16(E)(3) if the record does not demonstrate that (1) the prosecution's failure to disclose was - 8 - a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have benefitted defendant in preparation of his defense, and (3) that defendant was prejudiced by admission of the statement. Id. at syllabus. The trial court has discretion in deciding what sanction to impose for a violation of Crim.R. 16, and may exclude such material, although it is not bound to do so. State v. Wiles (1991), 59 Ohio St.3d 71, 78. The court must inquire into the circumstances surrounding the discovery violation, and should always impose the least severe sanction that is consistent with the purpose of the discovery rules. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, paragraph two of the syllabus. This case is strikingly similar to State v. Patton (Apr. 14, 1993), Lorain App. No. 92-CA-005387, unreported. In Patton, the accused complained that the state committed a discovery violation when it provided written summaries of a tape recording, but failed to produce the actual recording until the day of trial. The court found no reason to doubt the state's assertion that it made the tape recording available as soon as it learned of its existence. Moreover, the court noted Patton failed to demonstrate that earlier knowledge of the tape's existence would have benefitted him in preparing his defense. The same reasoning applies here. There is no indication the state purposely failed to divulge the videotapes. It did provide prior written summaries of the statements, and nothing in the - 9 - record suggests there were any material inconsistencies between the videotapes and the written summaries. Moreover, we find defendant fails to show any prejudice from the state's failure to give prior notice of the videotape. After viewing the videotapes, defendant told the trial judge: "I'm in a situation where I believe there is exculpatory material included in those tapes and I'm in a position where I might want those tapes played and, on the other hand, there may be some exculpatory material also which maybe I would have done a little more investigation with respect to those particular motions and I would have a better grip on how we would proceed in this particular trial, your Honor." The only prejudice defendant could argue came in the form of his motion to sever the co-defendants. As we noted previously, the court acquitted both Michael and Benjamin DeJohn, so they were available to testify in defendant's behalf. At that point, defendant was left with only general thoughts about his future course of action in defending the matter. He did not ask the court to continue trial so he could take affirmative steps to investigate or plan. Absent a more particularized showing of prejudice, we find the trial court did not abuse its discretion by refusing to declare a mistrial due to the state's discovery violation. The second assignment of error is overruled. III In his third assignment of error, defendant complains the state presented insufficient evidence to sustain a conviction for aggravated assault. He claims the trial judge's remarks at - 10 - sentencing show the judge was not convinced of defendant's guilt beyond a reasonable doubt. A reviewing court will not reverse a verdict where the trier of fact could conclude from substantial evidence that the state proved the elements of the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. R.C. 2903.12 sets forth the elements of aggravated assault: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another; *** The state presented circumstantial evidence of defendant's guilt in the absence of witnesses who could affirmatively testify to defendant's involvement in the assault. The testimony placed the assault in context, with the initial altercation inside the bar spilling outside the bar. Other testimony showed the victim refused to leave the area, pointedly asking to know who struck his friend. Defendant grabbed the victim in the altercation outside the bar, setting off a chain of events that culminated in the victim's submission and beating. Defendant's citation to the trial judge's remarks at sentencing are taken out of context and do not accurately reflect the judge's sentiments. When announcing his verdict, the judge acknowledged the lack of direct evidence to show defendant's guilt, - 11 - but stated, "*** the feasibility of someone other than the defendants committing the assault here is unlikely given the prior altercation in the bar and the testimony of what the Court considers a neutral witness in that, the testimony of [the barman]." Thus, the court inferred defendant's participation from the facts, saying, "*** I don't think that either one of you can stand here and tell me that you weren't the ones that were booting the victim in the face." These facts are sufficient to establish the elements of aggravated assault. Given the evidence of provocation, the judge could reasonably find defendant caused serious physical harm to the victim. The third assignment of error is overruled. IV The fourth assignment of error complains the court's verdict is against the weight of the evidence. Defendant argues conflicting testimony by the victim should have precluded his conviction. We are mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The victim's purported inconsistencies were not as material as the defendant would argue. They went to the number of people outside the bar at the time of the assault and the presence of other witnesses at the scene. These inconsistencies did not taint the basic facts relating to defendant's participation in the - 12 - assault, and those facts were substantiated by the barman. The court found the barman's testimony particularly credible since he was the only disinterested witness in the proceedings. On the record before us, we cannot say the trial judge erred. The fourth assignment of error is overruled. V In his fifth assignment of error, defendant claims the trial court erred by ordering him to pay $10,150 in restitution for the victim's medical expenses as a condition of probation. He claims the court lacked authority to order restitution as a condition of probation under State v. Wohlgemuth (1990), 66 Ohio App.3d 195. In Wohlgemuth, the court sentenced the offender to jail, suspended the sentence and ordered him to pay restitution. That order was not a condition of probation, but remained in force even if the jail sentence were reimposed. Id. at 198-199. Because R.C. 2929.11(E) limits the court's authority to order restitution only for "property damage" as part of a sentence, we found the order of restitution exceeded the court's sentencing authority. Id. We recently addressed Wohlgemuth in a related context in State v. Loesser (Oct. 19, 1995), Cuyahoga App. No. 66762, unreported. Distinguishing between restitution ordered as part of a defendant's sentence (held invalid under Wohlgemuth), we found no such restriction on the court's authority to order restitution as a condition of probation. Loesser, supra, unreported at 28-29; see also State v. Bush (1992), 83 Ohio App.3d 717, 718. Citing State - 13 - v. Henry (Feb. 13, 1992), Cuyahoga App. No. 59837, unreported, we found the General Assembly enacted R.C. 2951.02(B)(9) to give the court discretion to order probation so that an offender could make restitution to the victim of the offense. Loesser, supra, unreported at 32-33. In this case, the court clearly intended to order restitution as a condition of probation; hence, Loesser applies. Accordingly, we find the trial court did not abuse its discretion by ordering defendant to pay restitution as a condition of his probation. The fifth assignment of error is overruled. VI In his sixth assignment of error, defendant complains the trial court erred by denying his motion for a new trial. Defendant filed the motion claiming to have recently discovered a witness who would contradict the victim's testimony by saying that the victim started the fight when he jumped on the witness, punched him and forced him to the ground. Crim. R. 33 governs new trials and provides: "(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * "(6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. ***" A motion for a new trial based on newly discovered evidence must be filed within one hundred twenty days after the day upon - 14 - which the decision of the court is made. Crim.R. 33(B). If the motion is not timely, the defendant must demonstrate by clear and convincing proof that he was unavoidably prevented from filing the motion for a new trial. Id. "Clear and convincing evidence" falls short of evidence beyond a reasonable doubt and must produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. State v. Schiebel (1990), 55 Ohio St.3d 71, 74, citing Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. The motion for a new trial is addressed to the sound discretion of the trial court, reviewable for an abuse of that discretion. Id., at paragraph one of the syllabus. Defendant makes no claim that he filed a timely motion for a new trial; consequently, he had to prove by clear and convincing evidence that he was unavoidably detained from filing the motion for a new trial. This he failed to do, so the court had no obligation to consider the merits of the motion. Even had the motion been filed timely, the record does not show the trial judge abused his discretion by denying the motion. In State v. Petro (1947), 148 Ohio St. 505, the court stated that a motion for a new trial should not be granted on the ground of newly discovered evidence if that evidence merely impeaches or contradicts former evidence. Id. at syllabus. The evidence should disclose a strong probability that it will change the result if a new trial is granted. Id. - 15 - When the case has been tried to the court, the trial judge is in the best position to determine whether the newly discovered evidence would have created a strong possibility of a different outcome. Dayton v. Martin (1987), 43 Ohio App.3d 87, 90. Here, the trial judge considered the evidence and concluded defendant did not establish grounds for a new trial by clear and convincing evidence. We find no abuse of discretion. The sixth assignment of error is overruled. Judgment affirmed. - 16 - 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 Court of Common Pleas 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. HARPER, P.J. TIMOTHY E. McMONAGLE, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .