COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70483 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ALBERT COLA, SR. : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-331023. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael Zidar, Esq. Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Phillip A. Lawrence, Esq. 26 S. Franklin Street P.O. Box 226 Chagrin Falls, OH 44022 -2- DAVID T. MATIA, P.J.: Albert Cola, Sr., defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Case No. CR-331023, of the offense of illegal use of a minor in a nudity oriented performance in violation of R.C. 2907.323(A)(1). Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On May 2, 1995, officers of the Cleveland Police Department, acting on a tip that there was an underage dancer performing at an establishment known as Porky's II located at 2249 Hamilton Road in Cleveland, Ohio, initiated an investigation of the establishment. Upon entering the location at approximately 11:20 p.m., Detectives Gregory Green and Sam Morris of the Third District Vice Unit observed several women dancing on the stage in order to receive tips from the male patrons. One of the women was a minor, Andrea Melton. Ms. Melton, who police later determined to be sixteen years of age at the time, was dressed only in a bikini style top into which the patrons of the establishment placed money. After observing this activity for a short period of time, the detectives made themselves known to everyone in the establishment and requested identification from all of the dancers. Ms. Melton, whose stage name was "Fidge," was unable to produce identification and, more significantly, gave the police conflicting ages and birthdays. Further investigation revealed that Ms. Melton's actual -3- birthdate was September 13, 1978 and she was the subject of a missing persons report as she was also a runaway. That same night, the Cleveland Police obtained a dancers' agreement signed by the minor, Andrea Melton, and the owner of Porky's II, Albert Cola, defendant-appellant. The agreement contained the above-named signatures as well as an address purporting to be that of Andrea Melton. Nowhere in the agreement was there any reference to Andrea Melton's age, social security number or telephone number. On December 5, 1995, the Cuyahoga County Grand Jury returned a one count indictment against defendant-appellant alleging a violation of R.C. 2907.323(A)(1), illegal use of a minor in a nudity oriented performance. On December 19, 1995, defendant- appellant was arraigned whereupon a plea of not guilty was entered as to the single count indictment. On March 25, 1996, a jury trial began in the Cuyahoga County Court of Common Pleas. At trial, the state introduced evidence to demonstrate that defendant-appellant was, in fact, the owner of Porky's II as well as the dancers' agreement which bore defendant- appellant's signature as the sole representative of Porky's II. In addition, the state introduced a copy of Ms. Melton's birth certificate which established her birthdate as September 13, 1978. Lastly, the state introduced promotional material apparently distributed with the consent of Porky's II which featured photographs of Ms. Melton as one of the bar's nude dancing attractions. -4- Prior to the beginning of the defense case, the state moved to amend the indictment pursuant to Crim.R. 7(D) in order to include the word "performance" in the body of the indictment. Apparently, the word "performance," which was set forth in the caption of the indictment, was inadvertently left out of the body. The trial court granted the state's motion to amend the indictment over defense objection. The defense case was premised upon the argument that defendant- appellant was not directly involved in the hiring of Andrea Melton and, in fact, was a victim of Ms. Melton's dishonesty. It was defendant-appellant's position that Ms. Melton was only hired after she provided the bar with a fraudulent State of Ohio Identification Card which allegedly listed Ms. Melton's age as nineteen. The defense attempted to introduce the testimony of Kathy Tungstil, a former exotic dancer at Porky's II, who was going to testify regarding Andrea Melton's character and an alleged assault involving Ms. Melton that occurred several days before the police raid. The trial court would not allow Ms. Tungstil's testimony. At the conclusion of the trial, the jury returned a verdict of guilty against defendant-appellant. The trial court then sentenced defendant-appellant to a four to fifteen year term of incarceration and a $2,500 fine. On April 9, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. -5- II. FIRST ASSIGNMENT OF ERROR Albert Cola's, defendant-appellant's, first assignment of error states: THE EVIDENCE WAS INSUFFICIENT TO SUPPORT DEFENDANT'S CONVICTION. Defendant-appellant argues, through his first assignment of error, that his conviction of the offense of illegal use of a minor in a nudity oriented performance was not supported by sufficient evidence. Specifically, defendant-appellant maintains that the state failed to prove beyond a reasonable doubt that he acted recklessly in hiring Andrea Melton. It is defendant- appellant's position that Ms. Melton was only hired after presenting what appeared to be a valid state identification card to defendant-appellant's employees. Defendant-appellant contends that both his employees and he took every reasonable precaution to prevent minors from dancing at the bar and did not, in any way, act in a reckless manner in hiring Ms. Melton. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUFFICIENCY OF EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of defendant's -6- 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. State v. Jenks, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. C. EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT CONVICTION. In the case sub judice, both direct and circumstantial evidence was presented at trial by the state in an attempt to prove the elements of the offense of illegal use of a minor in a nudity oriented performance in violation of R.C. 2907.323(A)(1). A review of the record demonstrates that evidence was presented, by way of the signed dancers' agreement, which established that defendant-appellant allowed a minor to dance nude at Porky's II. -7- In addition, two promotional photographs were introduced into evidence by the state which featured the minor as a nude dancing attraction at the bar. Defendant-appellant maintains throughout that Andrea Melton was only permitted to dance after producing what appeared to be a valid state identification card; however, no photocopy of this card was produced at trial nor did the police find the alleged card at the time of Ms. Melton's arrest. Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of illegal use of a minor in a nudity oriented performance proved beyond a reasonable doubt. Accordingly, the jury did not err in finding defendant-appellant guilty of the indicted offense as sufficient evidence was presented to enable the jury to so conclude. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Albert Cola's, defendant-appellant's, second assignment of error states: THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON AN ESSENTIAL ELEMENT OF THE OFFENSE CONSTITUTED PLAIN ERROR. A. THE ISSUE RAISED: JURY INSTRUCTIONS. -8- Defendant-appellant argues, through his second assignment of error, that the trial court committed plain error in failing to instruct the jury on an essential element of the offense of illegal use of a minor in a nudity oriented performance. Specifically, defendant-appellant maintains that the trial court failed to instruct the jury as to the essential element of recklessness. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR JURY INSTRUCTIONS. A charge to the jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced. Marshall v. Gibson (1985), 19 Ohio St.2d 10, 12. It is well established that a trial court should confine its instructions to the issues raised by the pleadings and the evidence. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St.3d 202, 208. In Ohio, it is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287. However, requested instructions should ordinarily be given if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. C. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY. -9- In this case, contrary to defendant-appellant's argument, the trial court did, in fact, instruct the jury on the element of recklessness. The trial court stated in pertinent part: The State must prove the defendant acted recklessly, in that he had some notice of the nature of the performance or material. The State need not prove the defendant was aware of the actual content of the performance or material, but only that he was on notice as to its nature. A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist. You will determine from all of the facts in evidence whether the defendant acted recklessly, in that he had some notice of the nature of the material or performance in question. (Tr. at 158-159.) Clearly, the trial court properly instructed the jury pertaining to the required culpable mental state of reckless. State v. Turner (July 19, 1995), Summit App. No. 17010, unreported. Plain error has not occurred and therefore defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Albert Cola's, defendant-appellant's, third assignment of error states: -10- THE TRIAL COURT ERRED IN ALLOWING THE INDICTMENT TO BE AMENDED AT THE CLOSE OF THE STATE'S EVIDENCE. A. THE ISSUE RAISED: AMENDED INDICTMENT. Defendant-appellant contends that the trial court improperly permitted the state to amend the indictment after the state had rested its case. Specifically, defendant-appellant argues that the trial court should not have permitted the state to include the word "performance" in the body of the indictment. The state contends that the omission of "performance" was merely a clerical error which did not mislead or prejudice defendant-appellant in any respect. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR AN AMENDED INDICTMENT. Crim.R. 7(D), which governs amended indictments, provides in pertinent part: (D) Amendment of indictment, information or complaint. The court may at any time before, during, or after a trial amend the indictment, information, complaint or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. The Ohio Supreme Court, in applying Crim.R. 7(D), has held that an indictment which does not contain all the essential elements of an offense may be amended to include the omitted element as long as the name or identity of the crime is not changed and the accused has not been misled or prejudiced by the -11- omission of such element from the indictment. State v. O'Brien (1987), 30 Ohio St.3d 122 at paragraph two of syllabus. C. AMENDMENT TO THE INDICTMENT WAS PROPER. A review of the original indictment demonstrates that defendant-appellant was charged with illegal use of a minor in a nudity oriented performance in violation of R.C. 2907.323. The word "performance" clearly appears in the title of the charge and the correct revised code section is also set forth. However the body of the indictment states that defendant-appellant, "did create, direct, produce or transfer any material that showed Andrea Melton a minor, age 16 (d.o.b. 9-13-78) in a state of nudity." The word "performance" was originally absent from the body of the indictment. The state argued during trial that the omission of the word "performance" was merely a clerical error and the proposed amendment to the indictment was not improper since it did not change either the name or identity of the charged crime. A review of the record supports the state's position. It is apparent from the original indictment that defendant-appellant was in no way misled or prejudiced by the omission of the word "performance" from the body of the indictment given the fact that the title of the charge correctly stated the offense and the applicable revised code section. In addition, the amendment to the indictment did not change the name or identity of the underlying offense as the amendment was not substantive in -12- nature. State v. Smith (1983), 14 Ohio App.3d 366; State v. Rose (Aug. 30, 1995), Jefferson App. No. 93-J-43, unreported. Defendant-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR Albert Cola's, defendant-appellant's, fourth and final assignment of error states: THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF DEFENSE WITNESS KATHY TUNGSTIL. A. THE ISSUE RAISED: EXCLUSION OF EVIDENCE. Defendant-appellant contends that the trial court improperly excluded the testimony of defense witness Kathy Tungstil, a former employee at Porky's II. Defendant-appellant maintains further that the trial court improperly denied defense counsel the opportunity to fully and effectively proffer the testimony in question. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW FOR EXCLUSION OF EVIDENCE. A trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in accordance with the rules of procedure and evidence. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271: an appellate court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. State v. Jenks (1991), 61 Ohio St.3d 259, 281; -13- State v. Finnerty (1989), 45 Ohio St.3d 104, 107. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. -14- C. STANDARD OF REVIEW FOR PROFFER OF EVIDENCE. Evid.R. 103 states in pertinent part: (A) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and *** (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination. An offer of proof serves the salutary purpose of assisting an appellate court in determining whether the lower court's exclusion of certain evidence was prejudicial to a substantial right of the complaining party. City of Cleveland v. Houston (July 21, 1994), Cuyahoga App. No. 65897, unreported; State v. Chandler (April 13, 1995), Cuyahoga App. No. 67185, unreported. Therefore, a party is required to meet two conditions in order to allege error arising out of the exclusion of evidence. First, the excluded evidence must affect a substantial right of the party. Second, the substance of the excluded evidence must be made known to the trial court by proffer unless the substance is apparent from the context. State v. Gilmore (1986), 28 Ohio St.3d 190. D. THE TRIAL COURT DID NOT ERR IN EXCLUDING THE TESTIMONY OF KATHY TUNGSTIL. In the case sub judice, the trial court excluded the testimony of Kathy Tungstil, a former employee at Porky's II. After -15- excluding the testimony, the trial court offered on the record the following proffer of Ms. Tungstil's testimony: THE COURT: Shortly after Miss Kathy Tungstil was called to testify on behalf of the defendant, there was an objection interposed, and at sidebar hearing off the record I asked Mr. Lawrence for what purpose she would be testifying, and he indicated that she would be testifying to the effect that Andrea Melton was of bad character and that she was a chronic liar, and also to testify with regard to an assault that occurred in the bar several days before this episode on May 2nd, 1995. I indicated for what other purpose, and he said that was it, and I indicated that the objection was sustained, and her testimony would be stricken. Is there anything further? MR. LAWRENCE: No. You're correct, your Honor. But I would like to proffer, when I have a chance. THE COURT: Well, that's the proffer, that she would have testified to the victim's character, that she was of poor character, she was a liar, and that she'd also been involved in an assault in the bar several days before. MR. LAWRENCE: Oh. But that wasn't all that she would have testified to. I mean, that was the gist of it. She would have testified also to that Exhibit A, that it was prominently posted, it was properly posted, she would have testified to that. THE COURT: What relevance is that? I'm just curious. MR. LAWRENCE: To show that the establishment is run, that there are rules and regulations. -16- THE COURT: So it's a respectable strip joint as opposed to -- MR. LAWRENCE: A disrespectful strip joint. THE COURT: Well, it's in evidence. We'll argue in five minutes. MR. LAWRENCE: Okay. (Tr. at 126-127.) According to the proffer, to which defense counsel agreed, Ms. Tungstil's testimony was being offered to show the bad character of Andrea Melton and Ms. Melton's tendency to lie. One specific instance of Ms. Melton's alleged bad character was to be illustrated by testimony regarding an alleged assault in which Ms. Melton participated several days prior to the police investigation of Porky's II. Ms. Tungstil was also going to testify as to a set of rules which were allegedly posted within the bar as well as the effectiveness of those rules. A review of the proffered evidence demonstrates that the trial court did not abuse its discretion by excluding the testimony of the defense witness. Clearly, an alleged assault involving Ms. Melton which occurred prior to defendant-appellant's arrest is not relevant or admissible under Evid.R. 401 or Evid.R. 404 to demonstrate Ms. Melton's alleged bad character or penchant for untruthfulness. Similarly, testimony relating to the manner in which Porky's II was operated could have been considered cumulative in nature under Evid.R. 403 given the previous testimony of Stephanie Cola, a former assistant manager at Porky's II, and Todd Bray, a part-time security employee at the -17- establishment, who both testified regarding operating regulations established by defendant-appellant. Considering the nature of the proposed testimony, this court cannot now say that the trial court's decision excluding said testimony constituted an abuse of discretion. In addition, it is apparent from the record that defendant- appellant was not deprived of the opportunity to proffer the testimony of Kathy Tungstil. Not only did defense counsel agree with the trial court's evidentiary summary regarding the proposed testimony but defense counsel also added a portion of the proposed evidence omitted by the trial court relating to regulations at Porky's II. Defendant-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is 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 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. TERRENCE O'DONNELL, J. and TIMOTHY J. McMONAGLE, J., CONCUR. DAVID T. MATIA PRESIDING 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 .