COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69430 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES KITCHEN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JUNE 27, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-322957 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender JOHN CLOUGH, Assistant Robert R. Clarico, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Charles Kitchen appeals from his conviction following a jury trial for attempted aggravated burglary (R.C. 2911.11; 2923.02) resulting from his participation in breaking into a home. Defendant contends that the court committed prejudicial error in failing to instruct the jury about the admission of a prior inconsistent statement; that his counsel was ineffective in failing to request such an instruction; that the conviction was not supported by sufficient evidence; and was against the manifest weight of the evidence. We find no merit to these contentions and affirm. The case arose out of the following facts presented at trial. On March 19, 1995 around 3:00 p.m., Kevin Spellacy returned to his home at 1599 Waterbury Avenue, in Lakewood, Ohio, with his wife and two young children. As he pulled up in his car, he saw two men standing on his front porch holding the storm door open. The front door itself was still closed. Spellacy suspected something was wrong and dialed in "911" on his cellular phone, but did not hit the "send" button. He asked the two what they wanted and they said they were looking for someone named "Jenny." Spellacy told them that no one by that name lived there. One of the two then stated, "It must be 1699, then" referring to the address. The two men left to cross the street. Spellacy testified that he knew something was wrong because an address of 1699 Waterbury would have been on the same - 3 - side of the street as his house. His wife, who had proceeded to the front porch, told him there was broken glass on the porch floor. Spellacy hit the "send" button on his cellular phone and yelled for the two to stop, but they took off running. He chased them through the neighborhood but lost them in the backyards when they split up. Spellacy returned home to find Lakewood Police on the scene. Spellacy found that a piece of glass on his front door had been broken, apparently with a brick, and the inside door handle had been loosened. He also discovered that two storm windows had been pushed out of their tracks in an apparent attempt to get in through the windows on the side and back of the house. Spellacy identified defendant Kitchen in court as one of the two men he saw on his porch the day in question. He testified that the entire episode took approximately two to four minutes. He also identified a red jacket as being identical in appearance to one worn by the defendant. He did not know the defendant. When Spellacy first spotted defendant he was within six inches of the front door and standing right next to a man identified as Bryan Kubit. Kubit earlier pled guilty to attempted aggravated burglary as a co- defendant in this case. Donald Lesko, Spellacy's neighbor, testified that he found a red jacket, later identified as defendant's, shoved into the bushes in his front yard that afternoon. He turned the jacket over to the police. - 4 - Investigator Gary Stone of the Lakewood Police Department testified that he processed the scene, obtaining fingerprints which later were found to be those of Bryan Kubit, the co-defendant, on the door knob and glass of the front door. Prior to his arrival at the Spellacy home, Stone assisted in the arrest of co-defendant Kubit. Investigator Kenneth Kulczycki testified that he saw defendant Kitchen in the area that afternoon and chased him through the neighborhood to an apartment building at 13389 Madison Avenue in Lakewood, where he lived. Kulczycki retrieved the red jacket from Mr. Lesko. Kulczycki later identified a photograph of defendant taken in December 1993, which showed him wearing a red jacket identical in appearance to the one found in Mr. Lesko's bushes. Detective John Crane testified that he arrested defendant in his apartment at 13389 Madison Avenue the same day as the break- in. Defense counsel called co-defendant Kubit as a witness for the defendant. Kubit testified that he had gone to Spellacy's home mistakenly thinking that a girl named "Jill" lived there. He had met her in a bar two days earlier. He testified that he made up his mind to break into the home on the spur of the moment when he found no one home and that defendant Kitchen had no knowledge that he was going to commit the break-in. He stated that when he broke the window on the door, the defendant "stepped off the porch and started walking down the street." Kubit testified as to his prior - 5 - criminal record; that he did not know Jill's last name or address; and that he alone tried to break into the house. Kubit denied the conversation he had had the previous day with Detective Crane and the prosecutor concerning the participation of defendant in the break in. Defendant testified in his own defense that he had previous problems with Lakewood Police and about his prior drug trafficking convictions. He claimed he did not participate in the break-in and had no knowledge of Kubit's break-in plans. He stated that as soon as Kubit broke the window, he started to leave. He claimed he was walking down the porch steps when Spellacy pulled up in his car. He testified that he thought the victim had a black object in his hand that might have been a gun. On cross-examination, defendant stated that he was addicted to crack cocaine and spent time in prison with Bryan Kubit. Kitchen identified the red jacket retrieved from Mr. Lesko's bushes as his. The court refused, for lack of proper foundation, to allow Detective Incze to testify on rebuttal to statements made by Kubit and Kitchen while both were held at Lakewood Jail on the day of their arrest. However, over defense objection, the court allowed the testimony of Detective Crane that Kubit, in a conversation held the day before trial, told him that Kitchen knew of the planned break-in when they went to Spellacy's house. Defense counsel did not request a limiting instruction. Defense counsel brought out on cross-examination that Kubit's implication of Kitchen was part of a - 6 - plea bargain; that Kubit, by denying that Kitchen knew of the plan, testified contrary to his earlier statement to Crane and the prosecutor. Crane testified that Kubit had agreed to testify against defendant, but then became uncooperative and rude. Crane stated that he walked out on Kubit due to Kubit's rudeness, but felt that he had reached an agreement with Kubit regarding his testimony. The jury found defendant Kitchen guilty of the lesser included offense of attempted aggravated burglary. The court sentenced him to a term of actual incarceration of four to fifteen years. This timely appeal ensued. We will address the assignments of error in the order asserted and together where convenient to the discussion. I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY THAT A PRIOR INCONSISTENT STATEMENT MAY NOT BE CONSIDERED AS SUBSTANTIVE EVIDENCE. II. MR. KITCHEN WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN TRIAL COUNSEL FAILED TO REQUEST A LIMITING INSTRUCTION. Defendant argues that the introduction of the rebuttal testimony by Detective Crane was inadmissible hearsay and "created a manifest miscarriage of justice," as did his attorney's failure to request a limiting instruction. Defendant argues that "Detective Crane presented the only evidence of Mr. Kitchen's knowledge that Kubit planned to burglarize Spellacy's house" and - 7 - consequently, "there would have been no direct evidence that Mr. Kitchen had knowledge of Kubit's plan absent such evidence." (Aplnt's Brf. at 14). We do not find merit to this argument. Detective Crane's testimony was introduced under Evid. R. 613(B) as extrinsic evidence of a prior inconsistent statement made the day before by defendant's witness, Bryan Kubit, in the presence of Detective Crane. Defendant "opened the door" to this impeachment by calling Kubit as a witness and asking him point- blank if he had told defendant about his plan to break into Spellacy's home to which Kubit replied: "No sir." (Tr. 306). He also denied telling Officer Crane, the prosecutor, and his own attorney that defendant was aware of the break-in plans. (Tr. 313- 314). Detective Crane was called on rebuttal to testify that the day before trial Kubit told him that Kitchen knew about the plan in advance. (Tr. 341). Defendant correctly argues that the prior inconsistent statement, admitted pursuant to Evid. R. 613(B), could only be used for impeachment purposes and not for substantive evidence. As this Court in State v. Riggins (1986), 35 Ohio App.3d 1, 3 explained: Evid. R. 613 provides for the admission of a prior inconsistent statement for impeachment purposes. Where the prior statement was made under oath and in an adversary proceeding, it is admissible for its truth. Evid. R. 801(D)(1)(a). The requirements for admitting the statement for its truth have not been met here. The prior statement also does not fall within the hearsay exception of a statement made by a co-conspirator pursuant - 8 - to Evid. R. 801(D)(2)(e), as the statement was not made "during the course and in furtherance of the conspiracy" but was made as a confession after the declarant was in custody. State v. Duerr (1982), 8 Ohio App.3d 404, 407. Although the introduction of Kubit's prior inconsistent statement for impeachment purposes through Detective Crane called for a limiting instruction, defendant waived any error by failing to request such an instruction. State v. Grant (1993), 67 Ohio St.3d 465, 472; State v. Davis (1991), 62 Ohio St.3d 326, 339; State v. Collins (1990), 66 Ohio App.3d 438, 445. Counsel's failure to request a limiting instruction does not constitute plain error, as there was other evidence which supported the jury's finding that defendant acted with the requisite intent to take part in the breaking in of the home to commit a theft offense. As the Ohio Supreme Court in State v. Slagle (1992), 65 Ohio St.3d 597, 605 held, plain error should be noticed only if such alleged error had an influence on the outcome of the trial. See, also, State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 191. In the case herein, evidence aliunde of the defendant's intent to commit the act was as follows: Spellacy testified that when he pulled in front of his house, the defendant and co-defendant were standing inside the storm door about six inches from the front door; when Spellacy approached, the glass in the door was already broken out and the door knob loosened; the side and back storm windows had already been pushed out of their tracks before there - 9 - was an attempt to gain entrance at the front door. This evidence shows that defendant did not attempt to remove himself from the situation once the co-defendant attempted to break into the home. Given that this evidence is more than adequate to support the jury's finding that the defendant had the requisite intent to break into the home to commit a theft offense, counsel's failure to request the limiting instruction is not plain error warranting a reversal. Assignments of Error I and II are overruled. III. MR. KITCHEN'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. IV. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF ATTEMPTED AGGRAVATED BURGLARY HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be - 10 - interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. - 11 - State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. Kitchen's testimony was that he was a drug addict who went with Kubit on a Sunday afternoon to visit a girl known only as "Jill." Kubit and Kitchen had met in prison and Kubit was staying at Kitchen's apartment at the time. He neither knew the girl's last name nor where she lived. Spellacy testified that when he arrived, the glass was already broken out of his front door and the storm windows on the side and back of his house had been tampered with. Kitchen ran from Spellacy and from the police, hiding his red jacket in the bushes three blocks away. All of this testimony is undisputed. All of it points to defendant's criminal intent and his knowing participation in the break-in. Defendant claims he had no knowledge of Kubit's plan to burglarize the Spellacy home. He claims to have been taken by surprise when Kubit picked up the brick and broke the window. Yet he was six inches from Kubit within the storm door after the glass was broken; the handle of the door was loosened by the time Spellacy arrived; and the windows of the home were jimmied earlier before Spellacy ever got there. His testimony that he was simply there to visit a person known to Kubit as "Jenny" or "Jill" for no apparent reason was inadequate to excuse his presence at the break- in in the face of the other evidence. - 12 - We find the evidence was clearly sufficient to sustain the conviction. For the same reasons, the conviction was not against the manifest weight of the evidence. Assignments of Error III and IV are overruled. Judgment affirmed. - 13 - 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. DAVID T. MATIA, P.J., and PATTON, J., CONCUR. JAMES M. PORTER 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 .