COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69944 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FRANK SIZEMORE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 27, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-312960 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. MYRON P. WATSON, ESQ. Cuyahoga County Prosecutor 350 Courthouse Square Bldg. JAMES E. VALENTINE, ESQ. 310 Lakeside Avenue, N.W. Assistant County Prosecutor Cleveland, OH 44113 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant Frank Sizemore appeals the jury verdict finding him guilty of three counts of felonious assault, one count of having a weapon under a disability, and two firearm specifications. On July 16, 1994 at approximately 11:00 p.m. six males went to Jafferin's Bar to have a few drinks and shoot some pool. Defendant was also present in the bar with some friends. A short time later words were exchanged between a friend of defendant and one of the six males, Jerry Spatny. Defendant then went outside and retrieved his pistol from his friend's car. While defendant was retrieving his pistol, his friend Patrick Russell (known as Jamie), arrived in his car with his wife and another friend. At the same time, three young girls arrived on the scene, including Sara Dorsey, the daughter of defendant's ex-girlfriend. Defendant and Jamie proceeded to the trunk of Jamie's car, a brief argument ensued between the two concerning who would carry the gun. Defendant wound up carrying the gun while Jamie retrieved a ski mask and a sword from the trunk. Defendant returned to the bar and Jamie hid in the bushes outside. As Spatny and his friends exited the bar, defendant left with them. He approached to within a few feet of Spatny, aimed the pistol at his head and fired. Spatny ducked and then charged defendant. Defendant hit Spatny in the mouth with the gun and then Spatny shoved defendant aside and ran. - 3 - Meanwhile, Jamie jumped out of the bushes with the sword, ran up to Spatny's friends and attacked them. He cut one of Spatny's friends in the hand and cut another friend in the hand and head. Spatny's friends ran off and while doing so heard defendant fire the gun several more times. Through the use of photographs, defendant was identified and arrested. Defendant was appointed counsel and made an agreement with the police. If defendant gave a written statement, identified the person who wore the mask, and turned in the gun, the charge of attempted murder would be dropped. Defendant gave a written statement and told police Jamie wore the mask, but he never signed the statement or brought in the real gun. Defendant was released on bond and proceeded to trial. Right before the jury was about to read its verdict, defendant left the court house and fled. Defendant was found guilty on all counts. Nine months later defendant was captured and a hearing was held to determine whether the charges should be dropped because of defendant's plea agreement. A prosecutor and a detective testified stating defendant did not fulfill his part of the agreement because he never signed his statement and his brother brought in a toy gun and a starter's pistol instead of the real gun. Defendant testified and said the statement he provided the police with was only half the story and he never agreed to bring in the gun. He also stated he did not know why his brother brought a - 4 - toy gun to the police and the real gun was the starter's pistol he originally brought in. Defendant's first assignment of error states as follows: I. THE TRIAL COURT ERRED AND THE APPELLANT WAS UNDULY PREJUDICED WHEN IT ALLOWED HEARSAY STATEMENTS OVER DEFENSE COUNSEL'S OBJECTIONS. Defendant argues he was prejudiced by the improper testimony of Sara Dorsey. Defendant claims her testimony was offered as opinion testimony under Evid.R. 701 but in actuality her testimony was only a recollection of what happened on the night in question. Defendant also argues Dorsey's testimony was prejudicial to the defendant and thus inadmissible pursuant to Evid.R. 403. The state maintains Dorsey's testimony was merely a repetition of the very answer she had just given and was admissible under Evid.R. 701. Regarding Evid.R. 403 the state maintains Dorsey's testimony is relevant and proper because it established defendant's state of mind and the fact that Jamie and defendant were acting in concert. The testimony defendant complains about is the following: Q. Did you hear their conversation before they opened the trunk? A. They were just, I don't know exactly what they were saying, they were saying, they were arguing over who was going to get the gun. Q. They were arguing over who was going to get the gun? MR. VEGH: Objection. Q. I need the answer out loud. - 5 - THE COURT: Overruled. Q. I'm sorry, I didn't hear your last answer? A. They were arguing over who was going to have the gun. The record reveals Sara Dorsey arrived at the scene and saw defendant and Jamie standing together by the car. Dorsey was then instructed to get into the car but she remained standing by the trunk of the car. Then Jamie opened the trunk and pulled out the gun and long knife. Dorsey heard Jamie and defendant argue about who was going to carry the gun. She next saw Jamie with the sword and defendant with the gun. During this entire time all the parties involved were standing together by the trunk of the car. Defendant argues this is opinion testimony and should be excluded because it does not meet the requirements of Evid.R. 701. We believe this argument is without merit. Dorsey is a factual witness, she is merely reciting from memory her recollection of the events as they occurred on the day in question. She is not offering her opinion or making any inferences regarding her testimony. Therefore, defendant's argument pursuant to Evid.R. 701 is inapplicable. Defendant next claims Dorsey's statement "[t]hey were arguing about the gun" was prejudicial according to Evid.R. 403. However, defendant does not support this argument with any evidence or case law. - 6 - Evid.R. 403(A) states, "although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." This statement is probative on the issue of who was carrying the gun and defendant's complicity in this altercation. In addition, there is no evidence this statement unduly prejudiced the defendant in any manner. Because this testimony meets the requirements of Evid.R. 701 and Evid.R. 403 defendant's first assignment of error is overruled. Defendant's second and third arguments are similar so they will be reviewed together. They state as follows: II. THE VERDICT FINDING THE APPELLANT GUILTY OF COUNT II FELONIOUS ASSAULT, AS CHARGED HERE, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS CONTRARY TO LAW. III. THE VERDICT FINDING THAT THE APPELLANT GUILTY OF COUNT III, FELONIOUS ASSAULT, AS CHARGED HERE, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS CONTRARY TO LAW. Defendant argues the record reflects little or no evidence that he aided or abetted Jamie when Jamie was using the sword. The state counters by saying all the evidence points to the fact that Jamie and defendant were acting together in a scheme to assault Spatny and his friends. When the manifest weight of the evidence is the issue, the evidence is not construed most strongly in favor of the state. Instead, the appellate court must engage in a limited weighing of the evidence to determine whether there is sufficient competent, - 7 - credible evidence to permit reasonable minds to find guilt beyond a reasonable doubt. See State v. Dehass (1967), 10 Ohio St.2d 230. This test is stated in the second paragraph of the syllabus of State v. Eskridge (1988), 38 Ohio St.3d 56, as being "a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." Defendant was convicted of felonious assault under a complicity theory. Complicity is codified under R.C. 2923.03 which provides: "No person, acting with the kind of culpa- bility required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense in violation of Section 2923.01 of the Revised Code. Defendant argues the only culpable evidence presented was from Dorsey who testified "they were arguing about a gun" and that "Jamie opened the trunk" while defendant was outside the car. Defendant testified he did not see Jamie at the scene of the crime and did not know Jamie was even there until he returned to a friend's house and saw Jamie wiping blood off the sword. - 8 - Sara Dorsey testified for the state. She was outside the bar with a friend of the defendant's when the altercation took place. She testified that she was standing next to the car by the trunk when defendant walked up. She stated defendant told her to get in the car and then defendant and Jamie started "arguing over who was going to get the gun." Dorsey said she saw Jamie and defendant standing next to the trunk of the car when Jamie opened the trunk. Dorsey then saw them get a sword and a mask out of the trunk. She said Jamie put the mask on and hid in the bushes while defendant walked backed towards the bar. Dorsey next saw defendant grab a tall guy around the neck and hit him on the side of the head with the gun. She said defendant then fired the gun in the air and chased the tall guy firing the gun at him as he ran. After the attack, Dorsey went back to a friend's house where she heard defendant and Jamie bragging about the incident. Jerry Spatny also testified for the state. He stated he walked out of the bar and defendant had the gun pointed right at him. Spatny looked to his friends to provide some help but "saw a man with a big sword, so [he] knew they were occupied also." Defendant fired the gun and Spatny then charged him. At which time, defendant hit Spatny in the mouth with the gun. Spatny next shoved defendant and ran away. Matthew Sandy, one of Spatny's friends, testified that as soon as he walked out of the bar defendant was standing with a gun pointed at Spatny. He said he then heard a shot fired and he was - 9 - hit from the blind side with the sword. Sandy stated he fell to the ground and was hit two more times with the sword. Jose Quinones testified for the state and stated that when he walked out of the bar he saw defendant standing there with two other guys with a gun pointed at Spatny. Quinones then saw defendant fire the gun at Spatny then pistol whip Spatny with the gun. At this point, Quinones was cut on the hand by a man wearing a ski mask who carried a sword. Quinones stated he then ran away. Based on the foregoing testimony there is substantial evidence which this court concludes proves the elements of complicity. Defendant and Jamie together armed themselves with a gun and a knife. They organized a plan where Jamie would hide in the bushes and wait until defendant confronted Spatny and his friends then Jamie would jump out of the bushes and help defendant in the fight. Their plan was successful because defendant attacked Spatny with a gun while Jamie was able to slice two of Spatny's friends with a sword. Testimony revealed that after the incident defendant and Jamie talked and bragged about their participation in the attack. Accordingly, defendant's second and third assignments of error are overruled. Defendant's fourth and fifth assignments of error are similar and will be considered together. They state as follows: IV. THE TRIAL COURT ERRED WHEN IT DENIED APPEL- LANT'S MOTION FOR A MISTRIAL BASED ON THE IMPERMISSIBLE AND EGREGIOUSLY IMPROPER QUESTION MADE BY THE PROSECUTOR. - 10 - V. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO MAKE IMPERMISSIBLE AND INFLAMMATORY ARGUMENT TO THE JURY. Defendant argues his credibility was tarnished because a question by the prosecutor inferred defendant had threatened a witness. The state maintains there was a proper basis to support the question, defendant was aware of allegations that he threatened a witness, i.e., Dorsey, and the state withdrew the question even though the trial court overruled the motion for mistrial, thereby avoiding any prejudice to defendant. The prosecutor posed the following question: Q. Mr. Sizemore, isn't it a fact that the reason you went over there was to make sure, either by getting back with her mother or scaring her to death, you were going to make sure she wasn't going to come down here and testify against you, right? MR. VEGH: Objection, your Honor. May we approach? A discussion was held off the record and defendant then moved for a mistrial alleging the question was improper because it was not supported by any evidence and thus prejudicial. The following discourse then took place: THE COURT: Now, I have a recollection that prior to Mr. Valentine asking, gee, isn't that a funny thing to do, you have just been in this altercation and now you're going to move over to lovemaking, that Mr. Sizemore testified that he went over to patch up some differences. Wasn't there some testimony about this? I don't remember the exact words. - 11 - MR. VALENTINE (the prosecutor): Something like that. THE COURT: So it doesn't seem to me that there is anything improper about challenging the witness's stated purpose for going over there. And it's not crazy, it's not made out of the whole cloth since the woman that he wants to go over and patch up differences with is the mother of a possible witness to this altercation. So, in that sense a foundation has been laid. It's relevant. Now, Mr. Valentine, I think, is willing to withdraw the question, is that true? MR. VALENTINE: True. The court denied the motion for mistrial because it believed a proper foundation for the question had been laid and also because the question had been withdrawn. The granting or denying of a mistrial rests within the sound discretion of the trial court and an appellate court will not disturb the exercise of that discretion absent a showing of an abuse and that the accused has suffered material prejudice. State v. Smith (1990), 68 Ohio App.3d 692, 696. Regarding an improper question, the Ohio Supreme Court has held that a cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists. State v. Gillard (1988), 40 Ohio St.3d 226. In the present case, defendant testified that on the night of the incident he went over to his ex-girlfriend's house to reignite a once romantic relationship. Defendant's ex-girlfriend also - 12 - happened to be the mother of one of Sara Dorsey who witnessed the altercation. The prosecutor then stated the factual basis for posing the question was a telephone call he made to defendant's ex-girl- friend. The prosecutor called the ex-girlfriend to get Sara Dorsey to testify. The ex-girlfriend said she was not responding to the subpoena because she was afraid of what defendant would do to her and her daughter if Dorsey testified. The testimony revealed defendant went over his ex-girl- friend's house to re-establish his relationship with her. In addition, the prosecutor was told by the ex-girlfriend Dorsey had been threatened by defendant. This evidence clearly establishes a factual predicate to support a question concerning defendant's intentions the night he went to his ex-girlfriend's house. Defendant also argues the prosecutor's statement "why would Sara Dorsey make up any of this. The poor girl is scared to death to walk into this courtroom," is prejudicial because the prosecutor "wanted to prop out [sic] the testimony of this witness" by suggesting she would not lie because she was scared. Defendant's terminology in this argument is quite nebulous. However, it appears defendant is claiming the prosecutor made prejudicial comments during his closing argument. The Ohio Supreme court held in State v. Smith (1984), 14 Ohio St.3d 13, 14, that wide latitude is afforded parties during closing arguments, so long as their comments are not abusive and do not - 13 - prejudicially affect substantial rights of the defendant. There- fore, the state is entitled to some latitude in closing arguments. State v. Woodward (1966), 6 Ohio St.2d 14, 26, certiorari denied (1966), 385 U.S. 930. In this case, defendant's comment that Sara Dorsey was scared to death to testify was based on a prior question asked of defend- ant and later withdrawn when defense counsel objected, even though the trial court held a proper foundation had been laid. The prose- cutor subsequently stated he had a conversation with the witness' mother who stated defendant had threatened her and the witness. Furthermore, the prosecutor based his comment on the fact that Dorsey looked scared while testifying. He stated, "you could see her up there, she was near tears, chewing on her sleeve." It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury. United States v. Dorr (C.A. 5, 1981), 636 F. 2d 117. The prosecutor's comment that the witness was scared to death did not go beyond the evidence, as discussed in these assignments of error. The comment was not abusive and defendant does not even argue that a substantial right of his was prejudiced. Therefore, defendant's fourth and fifth assignments of error are overruled. Defendant's final assignment of error states as follows:. VI. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE APPELLANT A MISTRIAL WHEN IT LEARNED THAT THE STATE OF OHIO BREACHED A DEAL BETWEEN THE APPELLANT AND THE CITY OF GARFIELD HEIGHTS - 14 - REQUIRING IT NOT TO PURSUE ADDITIONAL CRIMINAL CHARGES AFTER THE APPELLANT PROVIDED A STATE- MENT TO THE GARFIELD HEIGHTSPOLICE DEPARTMENT. Defendant argues there was an existing agreement between him and the City of Garfield Heights and that Garfield Heights breached this agreement. Defendant alleges Garfield Heights promised him he would only be charged with one count of felonious assault instead of the three counts with which he was charged. The state maintains defendant breached the agreement with Garfield Heights. The state argues defendant was supposed to give a truthful statement, reveal the identity of the masked person, and turn in the weapon used at the altercation. In exchange, Garfield Heights would dismiss the attempted murder charge and recommend a reasonable bond. The record reveals defendant requested to speak with a detective to say he should not be charged with attempted murder because the gun he used at the altercation was a starter's pistol. The detective then informed Garfield Height's prosecuting attorney, James McGrath, defendant wanted to talk. Before defendant met McGrath, he was appointed an attorney. After a brief discussion, the detective, McGrath, defendant, and defendant's attorney had a meeting. At the meeting defendant agreed to give a truthful statement and bring in the weapon he used at the altercation. In exchange, Garfield Heights would dismiss the attempted murder charge and recommend a reasonable bond. - 15 - At this point defendant gave a statement to the police, with his attorney present. Defendant then was taken to a bond hearing and, before the police could get the statement into type-written form, defendant posted bond and left. Defendant never did sign the statement, although his attorney later read the statement and signed it. Also, defendant had his brother come down to the station and turn in a toy gun which the victims said was not the gun used at the altercation. Defendant did not bring in the starter pistol until the first day of trial. The instant agreement was neither a grant of immunity pursuant to R.C. 2945.44 nor a plea bargain since defendant, at the time, had not entered a plea of guilty or no contest. See State, ex rel. Leis, v. Outcalt (1982), 1 Ohio St.3d 147; Mabry v. Johnson (1984), 467 U.S. 504. Rather, the prosecution agreed to drop the attempted murder charge and set a reasonable bond and in return defendant would provide a truthful statement and turn in the weapon he used at the altercation. Case law recognizes that where "an agreement not to prosecute is conditioned upon a defendant's agreement to disclose information to the authorities, and it is determined that the defendant has not fulfilled the terms of the agreement, then defendant's failure to comply with his obligations nullifies the government's promise not to prosecute." State v. Small (1987), 41 Ohio App.3d 252, 255, citing United States v. Wood (C.A. 11, 1986), 780 F. 2d 929, certiorari denied (1986), 479 U.S. 824. "While a defendant's - 16 - failure to fulfill the terms of a pre-trial agreement will relieve the government of its reciprocal obligations under the agreement, the question of defendant's breach is not to be determined unilaterally by the government." Id., see also United States v. Calabrese (C.A. 10, 1981), 645 F. 2d 1379, 1390, certiorari denied (1981), 451 U.S. 1018. "Instead, the question of whether the defendant breached the agreement by inadequate performance such as by failing to provide truthful information should be determined, in the absence of an express agreement to the contrary, by the trial court by way of an evidentiary hearing." Id. In the present case, the court conducted an evidentiary hearing. Defendant claimed the state reneged on its agreement to prosecute only one count of felonious assault. The state responded by presenting the testimony of Garfield Heights prosecutor James McGrath, detective Joe Jaroscak, and Sergio Digeronimo, defendant's attorney who was present when the deal was discussed. The testi- mony revealed that defendant did agree to provide a truthful statement and bring in the weapon used at the altercation while the state agreed to dismiss the attempted murder charge and set a reasonable bond. The trial court found the state fulfilled its obligations under the agreement but defendant breached his obligation under the agreement by not providing a truthful statement. The trial court determined defendant was not entitled to any relief because he, not the state, breached the terms of the agreement not to prosecute. - 17 - Based on the testimony of the state's three witnesses, defendant's own attorney, and defendant's failure to present any credible evidence, we find there was a sufficient evidentiary basis allowing the trial court to conclude that defendant breached the terms of the agreement. Accordingly, the trial court properly determined defendant was not entitled to any relief. Defendant's sixth assignment of error is 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 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. PORTER, J., CONCUR. JUDGE JOHN T. PATTON 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 of decision by the .