COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69918 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION LISA CARVER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 22, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 95-CRB-109978. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Carol Watts Allen Prosecutor, City of Cleveland 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Alan H. Kraus, Esq. 940 Leader Building Cleveland, Ohio 44114 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Lisa Carver ("Carver") appeals from her bench-trial conviction of one count of making a false statement in a police felony investigation in violation of Cleveland Codified Ordinance Section 615.02(a)(2) and (3). For the reasons adduced below, we affirm. A review of the record on appeal indicates that the trial was conducted on November 8, 1995. The prosecution presented the testimony of three witnesses. The defense presented no witnesses on its behalf. The first witness for the prosecution was Cleveland Police Detective Henry Veverka, who testified in pertinent part as follows (R. 11-39): (1) he was assigned to investigate a felonious assault which allegedly occurred on July 7, 1995; (2) the subject of the felonious assault, Mr. Gogol, was under arrest and in police custody at the time of the assignment; (3) as part of the witness's investigation and to secure statements, the witness contacted the defendant-appellant and the victim of the felonious assault, Ms. Nina Burke; (4) on July 7, 1995, the defendant-appellant gave a written statement to the witness relative to the felony investigation of Mr. Gogol (see Plaintiff's Exhibit 3); (5) within this written statement, defendant-appellant implicated Mr. Gogol, to-wit, episodes of assault inside a bar followed by Mr. Gogol running the victim over with his car; (6) after taking the statement of defendant-appellant, the witness secured the oral - 3 - statement of Ms. Burke, the contents of which was reported by the witness in a supplementary report and which corroborated defendant- appellant's statement by also implicating Mr. Gogol; (7) based on the representations made by defendant-appellant and Ms. Burke, Mr. Gogol was charged with felonious assault; (8) the witness subsequently secured a written statement from Ms. Burke on July 14, 1995 (see Plaintiff's Exhibit 1), which statement contradicted the statement given by defendant-appellant, to-wit, it was defendant- appellant, not Mr. Gogol, who ran over Ms. Burke with a vehicle and that Ms. Burke had received a number of telephone calls requesting her to lie and falsely implicate Mr. Gogol; (9) based on the subsequent statement of Ms. Burke, the charge against Mr. Gogol was nolled; (10) the witness secured the written statement of Mr. Gogol on July 7, 1995, which corroborated Ms. Burke's subsequent written statement, to-wit, that defendant-appellant ran the victim over with a vehicle (see Plaintiff's Exhibit 2); (11) no one has corroborated defendant-appellant's version of events. The second witness for the prosecution was Ms. Nina Fay Burke, who generally corroborated the testimony of Detective Veverka, adding in pertinent part the following (R. 41-55): (1) she has been a friend of the defendant-appellant since childhood; (2) while Mr. Gogol was in the act of chasing after defendant-appellant after the ladies had left a bar, the passenger door of defendant- appellant's car struck the witness as the car was backing up while being driven by defendant-appellant; (3) at the scene of the - 4 - accident, defendant-appellant told the witness that Mr. Gogol had hit her (the witness); (4) following the accident, the defendant- appellant, during telephone conversations, told the witness that she (defendant) did not remember anything about the accident and sought the witness's help in determining what happened and by whom. The third witness for the prosecution was Mr. George Gogol, who stated in pertinent part the following (56-61): (1) he and defendant-appellant had cohabitated for three years before ending their romantic relationship, apparently on a sour note, approximately two months before the auto accident herein; (2) at the time Ms. Burke was struck by a vehicle, there were only two cars in that parking lot, Ms. Carver's and the vehicle in which this witness was riding as a passenger; (3) this witness's vehicle left the parking lot prior to anyone being struck, so he did not observe anyone being struck by a car on the date of the incident when Ms. Burke was struck; (4) he was charged with running over Ms. Burke, but those charges were ultimately nolled; (5) the vehicle in which the witness was riding, and which was driven by "Tony," did not strike Ms. Burke in the parking lot that night. At this point the prosecution rested. (R. 61.) Without the defense making a motion for acquittal at the time the prosecution rested, the defense was instructed to proceed with its case. The defense then moved to admit, without objection, the police statement of Ms. Carver, which is identified as Plaintiff's Exhibit 3. Subsequent to this admission of evidence, the defense rested. - 5 - (R. 61-62.) Once the defense rested its case, the defense then made a motion for acquittal pursuant to Crim.R. 29. (R. 62-63.) The court overruled this motion for acquittal after short oral argument by the parties. The parties then made their closing arguments. The court found the defendant guilty of making false, incriminating and misleading statements to the police and referred the matter for a presentence investigation report prior to sentencing. The defendant was sentenced on December 18, 1995, as follows: (1) a fine of $100 plus court costs; (2) 30 days incarceration, which time is suspended; (3) 1 year of inactive probation with instructions to "clear up Lakewood case." This appeal followed presenting two assignments of error. Oral argument has been waived and the appellee has failed to file an appellate brief. I THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S MOTION FOR ACQUITTAL UNDER RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE. The standard of review for sufficiency of the evidence is stated in State v. Martin (1983), 20 Ohio App.3d 172, paragraph 2 of the syllabus, as: *** 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. - 6 - If the court finds 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," the issue is presented to the fact finder. State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. Also see State v. Jenks (1991), 61 Ohio St.3d 259, paragraph 2 of the syllabus. The ordinance in question, Cleveland Codified Ordinance Section 615.02(a)(2) and (3), provides in pertinent part as follows: (a) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies: * * * (2) The statement is made with purpose to incriminate another. (3) The statement is made with purpose to mislead a public official in performing his official function. * * * (d) Whoever violates any provision of divisions (a)(1) to (8) of this section is guilty of falsification, a misdemeanor of the first degree. ***. Resolution of this sufficiency of the evidence argument hinges on a reading of defendant's July 7, 1995, written statement to the police. This statement provides in part the following: Around midnight on July 7, 1995 I was on Lorain at W. 80 and I was driving my car. With me was my friend Nina Burke. *** I watched Tony drive off [from the bar parking lot] in his car with Larry and George [Gogol]. So we left about 3 - 7 - minutes later and I was driving North on W. 73 to get to on the freeway and I saw them coming east on Clark and they were behind me and Tony was trying to run me off the road but I kept avoiding him. So I pulled into the parking lot at George Auto Body at W. 85 and Lorain and I stopped my car and told Nina to get out and call the Police. So Nina got out of the car and she ran to the pay phone and then George is next to my car pulling the bumper on my car and was trying to open my car door and then he did open my door and punched me in the face three times and then I hollered to Nina I'm going to get help and I drove off. I went to my sister's house at 2024 W. 81 but I couldn't wake her up so I drove back to where I had left Nina and Tony and george were gone. I saw Nina laying on the ground and she was saying Nina he run me over so I helped her into my car and then the Ambulance came. The ambulance took Nina away. So about 10 minutes later George and Tony come up in a white truck and blue mini-van with both of their parents, then Pat, Tony's mom started to yell at me about me telling the police Tony ran Nina down. Let me correct the Police were (sic) there when everybody came pulling up. * * * Q: Did you see either George or Tony run over Nina? A: No. Q: Did you run over Nina? A: No. Q: Could you have run her over accidently (sic) and not known you did it? A: No. Q: Had you been drinking? A: Yes I had two mixed drinks, I didn't finish either one. Q: Did anyone else witness this incident? - 8 - A: No. Q: Did you provoke a fight with George in the bar? A: No. Q: Did you follow George this night? A: No. Q: Who told you Nina got run over? A: She did. Q: Did she say who was driving? A: She said George was driving. Q: Having read your statement, do you find it to be true? A: (yes) . [Explanation added](this affirmative response was handwritten by defendant). The general tenor of this "Perils of Pauline"-type story contained in Carver's statement to the police quite clearly implicates Mr. Gogol as the person who was driving the vehicle which struck Ms. Burke, particularly where defendant claimed in the second to last question that Ms. Burke had told her that Mr. Gogol had been the offender, even though defendant knew at the time of making this statement that defendant had pressured Ms. Burke to maintain the fiction that it was Mr. Gogol who had run Ms. Burke down in the parking lot. This statement against Mr. Gogol, when viewed as a whole, is in direct contradiction to the statements and testimony of Ms. Burke and Mr. Gogol. Accordingly, the trial court could reasonably conclude that the prosecution had presented - 9 - sufficient evidence on the elements of the offense of falsification. Hence, the trial court did not err in denying the motion for acquittal. The first assignment is overruled. II THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY. The appellant argues that the following passage, which occurred during the prosecution's direct examination of Detective Veverka, demonstrates error by the trial court in the admission of allegedly hearsay evidence, to-wit, that the defendant prompted Ms. Burke to lie to the police concerning the identity of the person who ran her (Ms. Burke) over in the parking lot: * * * Q. Did that statement [Ms. Burke's statement to the police] match the statement of Lisa Carver? A. No. Q. In what respect did it differ? MR. KRAUS: Objection, hearsay. Nina Burke can testify to her statement. THE COURT: Overruled. A. Nina Burke implicated Lisa Carver as the one that ran her over at the scene. She [the defendant] requested Nina Burke tell the police that George Gogol ran her over. And there were phone calls made all throughout the day requesting Nina Burke continue to lie to the police to implicate -- - 10 - MR. KRAUS: Objection. Move to strike. These are statements made by a witness. These are hearsay. THE COURT: Overruled. (R. 20- 21)[Explanation added]. * * * Hearsay is defined pursuant to Evid.R. 801 as an out-of-court statement which is offered for the truth of the matter asserted by one who was not the declarant. Viewing the passage in question, we conclude that this is not hearsay since it was not offered for the truth of the matter asserted, but was offered only to prove that a conflicting statement was made by Ms. Burke in relation to the statement given by the defendant. Additionally, even if we were to conclude that error was made in the admission of this evidence, we would further be required to determine that such error was harmless since the same evidence was properly admitted during the prosecution's examination of Ms. Burke. The second assignment is overruled. Judgment affirmed. - 11 - 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 Cleveland Municipal 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. ANN DYKE, J., and JOHN T. PATTON, 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 .