COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69955 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION ERIC HOLLINGSWORTH : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-321712 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES R. WILLIS, ESQ. Cuyahoga County Prosecutor Courthouse Square Building Suite 350 THOMAS A. REIN, ESQ. 310 Lakeside Avenue, N.W. Assistant County Prosecutor Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Eric Hollingsworth, appeals from the judgment of the trial court wherein he was found guilty of one count of robbery. On appeal, defendant argues that his conviction should be reversed because (1) the trial court improperly permitted the prosecution to impeach defendant's credibility with evidence of a prior conviction and (2) the sentence imposed by the trial court amounted to an abuse of discretion. For the reasons that follow, the judgment of the trial court is affirmed. Defendant was charged with one count of robbery stemming from the incident on February 20, 1995, when he allegedly reached into the cash register at a local bakery and took money. As a result of a prior conviction for aggravated robbery in Case No. CR 226840, the indictment also carried an aggravated felony specification. Defendant pled not guilty to the charges herein and the case proceeded to trial. The first witness for the state was Howard Polk, an employee of Lax and Mandel's Bakery in Cleveland Heights. At approximately 8:00 p.m. Polk was working at the bread slicing machine. He testified that Mira Komarow was working at the cash register when a man whom Polk identified as the defendant entered wearing a hat, scarf, and a patch over his eye. Polk thought something was unusual because the weather was nice outside (Tr. 35). The witness was about five feet away from the case register - 3 - when he heard yelling. In the process of paying 85 cents for a Danish, defendant gave Mira a dollar, after which Mira and defendant began pushing and shoving. Polk stated that he saw defendant reach over the counter and into the cash register (Tr. 37). Observing money in defendant's hand, Polk confronted him, and they began to struggle. While tussling, defendant tried to hit Polk with a juice bottle. Others helped restrain defendant until the police arrived. On cross examination, Polk reiterated that he thought it was odd for defendant to be wearing an eye patch, scarf, and long jacket on a warm February night. The witness now stated that he was fifty feet from where defendant was at the counter (Tr. 50). Polk repeated that he saw defendant pay one dollar for the Danish and that Mira was giving defendant his change when defendant reached for the cash (Tr. 54). Defense counsel then questioned Polk regarding Polk's prior statement to the police that the man who entered the store was wearing a scarf with his hat pulled down over his face (Tr. 55). Defendant responded by confirming the statement he made nine months earlier. Upon questioning from the court, Polk stated that defendant was holding a ball of tens and twenties when he was subdued. The next witness was Ronnie Edwards, who was also an employee of Lax and Mandel's bakery at the time of the incident. He was working in the back of the bakery when he heard a scream and found Polk struggling with a man by the door. Told that the man was taking money from the register, Edwards helped Polk - 4 - subdue the man. Edwards identified this man as the defendant (Tr. 80). Edwards also corroborated that defendant tried to hit them with a juice bottle (Tr. 82). On cross-examination, Edwards testified that it was warm on the evening of the incident. He further stated that defendant was wearing a "skull cap," ski mask, and scarf around his neck. Edwards saw defendant's face after the struggle. He did not remember defendant wearing an eye patch. The third witness for the state was Officer Clayton Harris of the Cleveland Heights police department. He was alone in his patrol car on the night in question. He responded to a robbery call at Lax and Mandel's bakery. When he arrived, two men had the defendant face down on the floor. Harris stated the defendant was wearing a "skull cap." He did not notice any eye patch. The final witness for the state was Mira Komarow, a sales person at Lax and Mandel's bakery. She testified that defendant came into the bakery, ordered a cheese Danish, and gave her a dollar. When she tried to give him his change, he reached over and tried to take money from the cash register (Tr. 102). After he reached for the money, she grabbed his hand and began screaming and calling for help. Polk, who was approximately forty feet away came and began struggling with defendant to prevent him from running out of the store. She approximated that defendant grabbed $200. Defendant was wearing a coat and sport - 5 - hat, she stated, and one eye was covered with some white material, possibly gauze or a bandage (Tr. 107, 114). The first witness for the defense was John Hollingsworth, defendant's father. He stated that defendant was employed as a subcontractor for H.U.D. Around 7:30 p.m. on February 20, 1995, John dropped off defendant at his house. John further testified that it is a short distance from defendant's house to the bakery, less than two blocks. On cross-examination of John, the state asked whether defendant was living with John on December 28, 1987, February 10, 1988, and February 25, 1988. The witness responded that defendant was either living at John's house or on Coventry. The state then asked whether John was familiar with the Union 76 station on Lee Road in Cleveland Heights. The witness said yes to which the court held an immediate sidebar, sustained defendant's objection and the witness was dismissed. Defendant took the stand in his own behalf. He admitted to being convicted of a prior robbery offense; however, he denied that it was an aggravated robbery. He stated that on February 20, 1995, he worked and then visited his father's house. His father drove him home. Once at home, he realized that he needed to use the phone and, because his phone was not in service, defendant went to Lax and Mandel's bakery to use their phone. He needed change, so he bought a Danish. Upon entering the bakery, defendant claimed to have approximately one hundred dollars in his pocket. When the sales person gave him change for a five - 6 - dollar bill, he claimed he told her he gave her a twenty and wanted the right change. Defendant and the sales person began to argue. At this point, defendant stated, he was still holding the change in his hand. A worker from the back joined the argument, came around, and began fighting with the defendant. Another worker joined him and the men succeeded in forcing defendant to the ground. He admitted grabbing a juice bottle in order to hit the men, only because he was being choked. The police arrived and handcuffed defendant. On direct, the defense attorney elicited the testimony that defendant was convicted of robbery. On cross-examination, defendant admitted to being convicted of aggravated robbery in 1988, as opposed to mere robbery. He admitted to pleading guilty in exchange for the state dropping a firearm specification and another count of robbery. The state then asked the following question: Q. Well, in the first case you plead [sic] guilty to aggravated robbery. And isn't it a fact you went to Union 76 and reached over the cash-- Mr. Shaughnessy: Objection The Court: Objection sustained. What's the case number? Mr. Rein: 227442. The Court: Can you indicate the date? Q. December 28, 1987, 1987, you were in Union 76? Mr. Shaughnessy: Objection. Mr. Rein: May we approach? The Court: No. - 7 - Q. You are saying you were guilty of one but not the other, correct? A. Yes. Q. All right. And it was aggravated robbery on both of those cases, not robbery, correct? A. Yes. (Tr. 160-161.) Defendant claimed that he had about $100 in twenties on his person that evening. He repeated that he gave the salesperson a twenty-dollar bill and indicated that after he received his change he was going to ask for four quarters in order to make a phone call. He also admitted to having a hat and a scarf in his possession on that night and acknowledged that the inventory form of items in his possession when he was taken into custody showed only fifty-seven cents. After defendant stated that the incident in the case at bar was a big misunderstanding, the state asked him whether the incident of December 28, 1987 was a misunderstanding. The trial court sustained the defendant's objection to this question. The final witness for the defense was Christine Pierce. She stated that she was defendant's former girlfriend. She often went with defendant to Lax and Mandel's bakery. The jury returned a verdict of guilty on the one count of robbery. After the guilty verdict on count one of the indictment, the trial court made a finding as to the validity of the specification for the prior aggravated felony conviction in CR 226840. The trial court thereafter sentenced defendant to 12 - 8 - to 15 years incarceration. Defendant appealed raising two assignments of error. The first assignment states as follows: I. THE COURT ERRED IN ALLOWING THE STATE TO IMPEACH THE DEFENDANT'S CREDIBILITY BY SHOWING CERTAIN DETAILS OF HIS PRIOR CONVICTION. In this assignment, defendant seeks a reversal because the prosecutor went beyond the mere fact that defendant had a prior conviction when he attempted to present and elicit from defendant and his father the details of the crime for which he was convicted. This assignment lacks merit. In the exchange (quoted above) when the prosecutor began to ask defendant about the incident at the Union 76, the trial court immediately sustained the defendant's objection. Similarly, when the prosecution began to ask the father about the same incident, the trial court immediately sustained the objection. Thus, no details regarding the earlier incident were ever presented. Regarding the prior conviction, defendant has not pointed to any portion of the record when the jury heard details admitted over the defense's objection. On the contrary, at a sidebar the court said the following: There was a sidebar conference relative to the use of the defendant's written statement and request of the defense counsel, and I indicated the motion in limine related to the State's case in chief, I thought there was a request by the State to allow the State to make further inquiry into the statement in the area of mistakes, et cetera. And I said, sure, you are allowed to do that, both sides. I said that after the fact. It was not an after effect brought to my attention, brought by Mr. Rein. His desire was to bring in evidence he felt he had relative to lack of mistakes relative to this alleged incident. I apologize. I misunderstood the request. - 9 - There was a subsequent request by the State during the course of cross-examination to get into another specificity relative to the earlier convictions, and I precluded the State from doing that. We had a sidebar conference in that area. I am a firm believer in the other acts statute and the fact the other acts statute applied more often. However, I did indicate at sidebar there was no notice of intent to use evidence under the other acts aspect of the Ohio Revised Code. And, although, Mr. Rein, you have a basis for making that argument, I didn't allow you to do it in the sense of caution. (Tr. 178). When instructing the jury, moreover, the trial court stated as follows: We have heard testimony relative to a prior record. You may take that into consideration in determining whether or not you believe or disbelieve the party that has that prior record. It doesn't follow that one who committed a crime in the past will commit it again. You may take into consideration evidence relative to prior convictions regarding believability or non-believability. (Tr. 235.) Accordingly, the trial court did not err by allowing into evidence the details of the prior conviction. In his assignment of error appellant attributes the error to the court improperly admitting evidence. In his brief, however, appellant characterizes the error as prosecutorial misconduct. The prosecution's attempt to introduce these details, however, does not amount to prosecutorial misconduct. The prosecution presented a colorable argument that the details of the similar prior conviction would be permissible to rebut defendant's defense that his actions were misunderstood. Attempting to introduce that which is arguably admissible does not rise to the level of prosecutorial misconduct. State v. Callahan (Jan. 15, - 10 - 1981), Cuyahoga App. No. 41955, unreported at 4. Moreover, because no details were ever revealed to the jury, it cannot be said that defendant was denied a fair trial. "The conduct of a prosecuting attorney during trial cannot be made ground for error unless the conduct deprives defendant of a fair trial." State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. The first assignment is overruled. II. THE COURT ABUSED ITS DISCRETION (FOR AUGHT THAT APPEARS) IN ARBITRARILY SENTENCING THE ACCUSED TO A PENAL 2TERM OF 12-15 YEARS, WITH 12 YEARS ACTUAL. In this assignment, defendant argues the trial court abused its discretion by sentencing defendant to a term of 12 to 15 years incarceration with 12 actual. Defendant concedes that the trial court sentenced defendant within the permissible statutory range. Generally, a court of appeals will not review the trial court's exercise of discretion in sentencing where the sentence falls within statutory limits. Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 34 O.O.2d 13, 213 N.E.2d 19. Nevertheless, the trial court cannot disregard statutory criteria for sentencing without a suitable explanation. State v. Flors (1987), 38 Ohio App.3d 133, 140, 528 N.E.2d 950, 957. State v. Burge (1992), 82 Ohio App.3d 244, 249. In the case at bar, the trial court gave its reasons for sentencing defendant with the statutory maximum as follows: But in light of the fact you have got two prior convictions for aggravated robbery, in light of the overwhelming evidence in this case, in light of the fact the jury--although I did not speak to them personally, they darn near could have taken a vote out of the box. They didn't deliberate this case 15 minutes before they buzzed and found you guilty, because the evidence was so overwhelming. - 11 - (Tr. 262.) R.C. 2929.12 sets forth criteria to guide a court's discretion in determining the minimum term for felonies. R.C.2929.12(B)(1) states the fact that the offender is a repeat offender weighs in favor of a longer term of imprisonment. The trial court specifically made this finding on the record. Moreover, none of the factors listed in R.C. 2929.12(C) which favor a shorter minimum term of imprisonment, applies. Therefore, it cannot be said that the trial court abused its discretion in sentencing defendant. The second assignment is overruled. Judgment affirmed. - 12 - 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. JAMES D. SWEENEY, P.J., and NAHRA, J., CONCUR. DIANE KARPINSKI JUDGE 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 .