COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69382, 69383 : CITY OF EUCLID : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION STEVEN D. KEY (No. 69382) : RASHUND L. KEY (No. 69383) : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Euclid Municipal Court Case Nos. 95-CRB-559B, and 95-CRB-558B, respectively. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: DEBORAH A. LEBARRON, ESQ. DONALD BUTLER, ESQ. Director of Law 75 Public Square Suite 1111 RICHARD A. WIEGAND, ESQ. Cleveland, Ohio 44113 City Prosecutor City of Euclid TERRY H. GILBERT, ESQ. 585 East 222nd Street 1700 Standard Building Euclid, Ohio 44123 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendants-appellants, Rashund Key and Steven Key, appeal from judgments of the trial court finding each of them guilty of one count of disorderly conduct. Defendants have combined their appeal and raised four assignments of error, which argue that (1) their convictions were against the manifest weight of the evidence, (2) they were denied a fair trial by virtue of prosecutorial misconduct, (3) the trial court's charge to the jury was incorrect, and (4) they were denied a fair trial because the trial court refused to allow defendants to cross-examine state's witnesses by using the police reports. For the following reasons, we find no merit to these arguments and affirm the judgments of the trial court. The charges in the case at bar stem from a fight at the Plaza Lounge in Euclid, Ohio. Around 2:00 a.m., May, 28, 1995, police responded to a report of a fight taking place at the bar and a large crowd gathering in the parking lot. Upon arrival at the bar, police claimed that they had to subdue both Rashund Key and Steven Key with pepper spray because Steven was running toward an officer in a threatening manner and Rashund was squaring off to fight another person. As a result, both Rashund Key and Steven Key were charged with disorderly conduct (Euclid Codified Ordinance 545.02) and resisting arrest (Euclid Codified Ordinance 501.16). - 3 - The first witness for the City of Euclid was Curtis Ingram, the owner of the Plaza Lounge. He testified as follows. On the date in question he was cleaning his bar when a fight broke out in the bar. He could not see who was involved. Ingram called the police, and the crowd from the bar went outside into the parking lot. Around the time the police arrived, Ingram, noting that one of the waitresses was not inside the bar, went out to the parking lot to encourage her to return to the bar and leave the crowd. As he was scanning the crowd, Ingram noticed a man running toward a police officer and then Ingram looked away. When he looked back, he saw the officer spray the individual with pepper spray. Continuing to look for the barmaid, Ingram noticed two individuals "squaring off" as if to fight. He observed another officer approach the two, say something, and then spray them both with pepper spray. One of the two involved in the fight gave up immediately. Following Ingram and the barmaid back into the bar, the other man went into the bathroom and stated he was washing his face. The police then came in and asked the man to leave the bathroom. He finally came out when the police, receiving no response, threatened to send in the police dog. On cross-examination, Ingram stated that he recognized Rashund Key as the person who went into the bathroom after being sprayed. He could not, however, identify Steven Key as the person who was sprayed after running toward the police officer. Nor did Ingram see this person screaming, yelling, or being handcuffed. - 4 - The next witness for the state was Officer Kevin A. Kelly, who testified as follows. On May 28, 1995, Kelly was working the midnight shift when he received a call concerning a fight at the Plaza Lounge. Upon arrival on the scene, Kelly "saw a man running towards me with his arms flailing in the air and screaming." (Tr.37) The man, later identified as Steven Key, had his fists clenched and was yelling in a loud voice. In order to defend himself, Kelly sprayed the man with pepper spray. This stopped the aggressive actions, but Steven Key was still uncooperative. Other officers had to assist in handcuffing defendant-Steven. After subduing Steven, Kelly noticed two men, Goggins and Rashund Key, squaring off to fight and ordered them to stop. Because the two men continued to "joust" with each other, Kelly told them they were under arrest and sprayed them both with oleoresin capsicum pepper spray ("OC spray"). Rashund Key then went to the bar bathroom. Officer Timothy Hoffman was the next witness for the state. He testified that on the night in question, he and other officers responded to a bar fight at the Plaza Lounge. He brought the police dog as part of the K-9 unit. Upon arrival, he was told that a suspect was hiding inside the rest room. Hoffman then stated the suspect did not respond to the initial request by the officers to come out. However, after Hoffman said they would send the dog in, Rashund Key came out. Officer Atchley took the stand. He arrived at the same time as Officers Knack and Kelly. Atchley stated Steven Key was - 5 - "running at Patrolman Kelly flailing his arms." (Tr.98) Thereafter, Kelly sprayed Steven Key with the OC spray. Atchley further stated that the officers had to order Steven Key to the ground ten to fifteen times and that he was fighting and struggling with the officers. Officer Knack testified as follows. Upon arrival at the scene, he noticed one person, Steven Key, taunting the group, swearing and being verbally abusive. When Knack told him to quiet down, Steven Key became more excitable and moved toward Kelly in an aggressive manner. Knack stated that Key grabbed at Kelly as if he were going to punch him. Kelly then sprayed Steven Key with OC spray. Knack helped to handcuff Steven Key and to remove Rashund Key from the bathroom. Kayanne Burdy testified for the defense. She was at the bar on the night in question. She stated that she was walking out with Steven when another man approached Steven and they began to fight. The fight went into the parking lot and attracted about fifteen to twenty people. She explained Steven was just watching, trying to explain the events to the officer, when he was sprayed. Steven did not move toward Officer Kelly or attempt to grab him. Joanne Hanson testified that she was present when the fight broke out as well as when it spilled out into the parking lot. She did not see Steven Key go after or make any gesture toward Officer Kelly. Additionally, she did not see Rashund Key square off to fight. - 6 - Alfred Wilcox, who was not present on the night defendants were arrested, testified as to Steven Key's character. As an associate warden, Wilcox was familiar with Steven Key because he was a corrections officer. Wilcox stated that Steven Key has good communication skills and was adept at verbally handling troublesome situations that arise while overseeing the prisoners. Rashund Key testified that he saw other men begin to fight with Steve inside the bar and in the parking lot. Going to his car in the parking lot, Rashund was approached by Lejuan Goggins, who wanted to fight. Rashund stated that he saw Officer Kelly spray Steven as Steven was arguing with another person. Kelly then came over and sprayed Rashund Key. Rashund explained that he was defending himself when he was sprayed and that he was never told that he was under arrest. Steven Key testified that as he was leaving the bar, a man lunged and threw a punch at him. The fight continued outside. When the police arrived, there was no fighting going on; Steven was talking to Rashund, trying to persuade Rashund to leave when Steven was sprayed by Officer Kelly. He reiterated that he never moved toward Officer Kelly or put out his hands. He also heard no warning or order to stop. Sandra Key, the mother of the two defendants, testified that her sons were with her before they went to the Plaza Lounge. When they returned, she photographed the injuries to Steven's face. She was not present during the bar fight or the arrest of her sons. - 7 - Defendants were found not guilty of resisting arrest but guilty of disorderly conduct. They timely appealed and assign the following errors. I. DEFENDANT-APPELLANT'S [sic] CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, both defendants claim that their convictions for disorderly conduct were contrary to the manifest weight of the evidence. The standard for evaluating a claim that a conviction is against the manifest weight of the evidence has been summarized as follows: Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. Euclid Codified Ordinance 545.04 defines disorderly conduct as follows: (a) No person shall recklessly cause inconvenience, annoyance or alarm to another, by doing any of the following: (1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior; (2) Making unreasonable noise or offensively coarse utterance, gesture or display, or communicating unwarranted and grossly abusive language to any person; (3) Insulting, taunting or challenging another under circumstances in which such conduct is likely to provoke a violent response; (4) Hindering or preventing the movement of persons on a public street, road, highway or right of way, or to, form, within or upon public or private property, so as to interfere with the rights of others and by any act - 8 - which serves to lawful and reasonable purpose of the offender; (5) Creating a condition which is physically offensive to persons or which presents a risk of physical harm to persons or property by any act which serves no lawful and reasonable purpose of the offender. In the case at bar, neither Rashund Key's nor Steven Key's conviction was against the manifest weight of the evidence. From the police, the jury heard one version, which although contradicted by the defense witnesses was corroborated in most respects by the bar owner. In deciding which version to believe, the jury did not create a manifest miscarriage of justice. The judgment of the trial court was not contrary to the manifest weight of the evidence. The jury heard testimony from the officers and the bar owner that defendant Rashund Key was squaring off to fight another man in the parking lot. This incident occurred at a bar where a fight had spilled out into the parking lot. This evidence supports a conviction for disorderly conduct for "[i]nsulting, taunting or challenging another under circumstances in which such conduct is likely to provoke a violent response" or acting in a "violent or turbulent behavior." Testimony from the officers also established that Steven Key charged at Officer Kelly with arms flailing. Although the bar owner could testify only that he saw the man running toward Officer Kelly, this testimony contradicted Steven Key's defense that he was merely standing in the parking lot when he was sprayed. Aggressive actions toward a police can support a - 9 - disorderly conduct conviction. Akron v. Ragan (1992), 80 Ohio St.3d 397. Accordingly, the convictions of Steven and Rashund Key were not against the manifest weight of the evidence. The first assignment is overruled. II. PROSECUTORIAL MISCONDUCT DENIED APPELLANT [sic] HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. In this assignment, defendants argue that they were denied a fair trial as a result of the prosecutor asking a defense witness whether a prosecution witness was mistaken or lying because their testimony was so different. The conduct of a prosecuting attorney during the course of trial does not constitute reversible error unless the prosecutor's conduct deprived the defendant of a fair trial. State v. DePew (1988), 38 Ohio St.3d 275. It is within the trial court's discretion to allow the prosecution on cross-examination to ask a defense witness whether a prosecution witness was lying. State v. Garfield (1986), 34 Ohio App.3d 300, addressed this specific question and held cross- examination may involve asking a witness whether "other witnesses are lying." Moreover, this court has consistently held that this line of questioning does not deprive a defendant of a fair trial. State v. Parker (Oct. 5, 1995), Cuyahoga App. No 68156, unreported; State v. Lewis (Nov. 18, 1993), Cuyahoga App. No. 64077, unreported; State v. Graham (May 6, 1993), Cuyahoga App. No. 62471, unreported; State v. Curry (Dec. 17, 1992), Cuyahoga App. No. 63438, unreported. Accordingly, defendants' second assignment is overruled. - 10 - III. THE COURT ERRED BY DENIAL OF DEFENDANT-APPELLANT'S [sic] MOTION FOR NEW TRIAL AND IT'S CHARGE TO THE JURY AS TO SUBSECTIONS OF THE DISORDERLY CONDUCT SECTION OF THE EUCLID CODIFIED ORDINANCES. In this assignment, defendants object to the charge given to the jury. However, defendants have not made the jury instructions part of the record on appeal. "The failure to transmit a full transcript of the evidence adduced at trial and of the complete jury instructions renders a reviewing court unable to rule upon the appellant's claim of error in the trial court's instructions. Clevecon v. Northeast Ohio Reg. Sewer Dist. (1993), 90 Ohio App.3d 215, 222. Accordingly, this assignment is overruled. IV. THE TRIAL COURT ERRED BY DENIAL OF DEFENDANT- APPELLANT [sic] RIGHT TO CROSS-EXAMINE THE STATE WITNESSES FROM THEIR POLICE REPORTS WHERE THEY CONTAINED INCONSISTENCIES. In this assignment, defendants argue that the trial court erred by not allowing them to cross-examine both Officers Atchley and Knack about alleged inconsistencies between their police reports and their trial testimony. Under Crim.R. 16(B)(1)(g), a witness's prior statement is not discoverable until after the person making the statement has testified. After the testimony, the statement can be used on cross-examination only after an in camera inspection by the court reveals inconsistencies exist between the witness's trial testimony and prior statement. Pursuant to this rule, the party seeking discovery of the prior statement must request an in camera inspection prior to completion of the cross-examination. - 11 - State v. Jenkins (1984), 15 Ohio St.3d 164. Finally, the trial court's determination as to whether any inconsistency exists is reviewed under the abuse of discretion standard. State v. Clay (1972), 29 Ohio App.2d 206, 212. The trial court did not err in denying defendants' request to cross-examine the officers with their police reports. Defense counsel never requested an in camera inspection of Officer Knack's report; therefore, the trial court did not err by precluding the use of the report on cross-examination. Regarding Officer Atchley, a review of the record reveals that the trial court did not abuse its discretion in finding no inconsistency between his testimony and his police report. In the case at bar, defendant's brief does not specifically state how the testimony and the police report were inconsistent. During the trial, however, defendant's counsel advised the judge that Atchley's testimony which claimed Steven Key did not go immediately to the ground when ordered and that he fought and struggled as the handcuffs were placed on him was inconsistent with Atchley's police report, which did not mention Steven Key's resistance. Matters testified to at trial which are omitted from a police report, however, are not necessarily considered inconsistent for purposes of Crim.R. 16. State v. Hartford (1984), 21 Ohio App.3d 29. The trial court's finding that this omission did not rise to the level of an inconsistency is not an abuse of discretion. Moreover, the police report included details that implied resistance. In the report, Atchley stated, - 12 - "Key was taken to the ground, handcuffed and searched for weapons." The phrase "taken to the ground" implies that force was necessary and that Steven Key did not go willingly. Finally, any inconsistency between Atchley's report and his testimony went only to the charge of resisting arrest. Because Steven Key was found not guilty on the resisting arrest charge, any error on this point is, therefore, harmless. State v. Cook (1991), 73 Ohio App.3d 80; State v. Earle (Oct. 10, 1991), Cuyahoga App. No. 59120, unreported. Defendants' fourth assignment is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellants 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 Euclid 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. NAHRA, P.J., and O'DONNELL, 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 .