COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69788 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DIONE G. MILLS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MARCH 20, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 324227 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones David L. Doughten, Esq. Cuyahoga County Prosecutor 4403 St. Clair Avenue, N.E. By: Robert Dubyak, Esq. Cleveland, Ohio 44103 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -3- ROCCO, J.: 1 Defendant-appellant Dione Mills appeals from his convictions for murder, with a firearm specification, aggravated murder, with a felony murder and a firearm specification, and aggravated robbery, with a firearm specification. He claims the prosecutor was guilty of misconduct during trial and challenges the trial court's admission of testimony pursuant to Evid.R. 404 and Evid.R. 802. This court finds no error, however, and therefore affirms appellant's convictions. The incident which led to appellant's convictions occurred in the evening hours of January 14, 1995, in the area of East 93rd Street and Hough Avenue in the city of Cleveland. The testimony of the state's witnesses established the following sequence of events. Dayrome Anderson, a friend of appellant's brother, was selling crack cocaine in a "back lot" near the intersection that rainy winter day. Late in the day, appellant came by and the two young men conversed. Anderson mentioned that he had found a gun which he was trying to sell, since his mother would not let him keep it in the house. Appellant expressed an interest in buying the gun, a .38 caliber snub-nose revolver; however, he did not have the money. He did have some drugs, though. The two therefore arranged a deal: 1 Appellant's name was misspelled throughout the proceedings in the trial court. Eventually, the indictment was amended to state his first name was spelled with a concluding "e." -4- appellant gave Anderson some rocks of crack cocaine in exchange for the gun. After the deal was completed, Anderson heard appellant say he 2 was going to "hit-a-lick." Anderson understood this to mean appellant planned to "do something to somebody" in order to obtain "some money." Appellant then left the back lot for a time. During that time, appellant saw a friend, William Jackson, in the parking lot of a nearby group of apartments. Appellant said, "look what I got" and showed Jackson his new acquisition by pulling up his shirt and displaying the gun, which was placed inside the waistband of his pants. Jackson recognized the gun, replying that he had wanted "to buy it, too." Jackson then went with his friends Lakeiche Johnson and David Henderson to David's apartment in the complex. Appellant returned to East 93rd Street near Anderson, who again noticed appellant's presence. Anderson also noticed the presence of a young man walking in the street, approaching them. The young man was wearing a dark blue sport jacket with a matching headband. When the young man had passed by them and stepped onto the sidewalk, appellant remarked disparagingly to Anderson that he looked like a "Wade Park boy." Appellant then began to follow the young man. Anderson accompanied appellant for a short distance, but as he began to suspect appellant's purpose, he dropped back and 2 Quoted material is testimony given by witness at appellant's trial. -5- turned aside into a parking lot. However, he continued to observe appellant getting closer to the young man. When appellant was in close proximity, Anderson saw the young man alter his course, attempting to turn into a driveway. Anderson then saw that appellant "pulled [the gun] out and just shot." Appellant fired the gun three times. Anderson saw the victim, later identified as Abdul Hakim Chui, fall. Anderson then left the scene running, eventually reaching a friend's house on the next block. The shots were heard by several people in the apartment complex across the street. Ester Darby was preparing for bed at approximately 9:20 p.m. when she heard gunfire. She waited a few seconds, then peered out her bedroom window into the parking lot. She saw a person running across the lot in front of the apartments on the other side. The illumination from the lights of the street and on the front doors of the apartment units enabled Darby to observe the face of the person as he ran past her. Lyda Geiter, the mother of one of appellant's friends, also heard the shots. Fearing that her son might have become a victim, she quickly left her apartment, heading for the street. As she did so, she "bumped into" appellant, who was running the other direction. Lakeicha Johnson and William Jackson, still at their friend David's apartment in the complex, also went to the window after hearing the shots. As they observed from the window, Lakeicha saw appellant in front of the unit. He "had something in his hand," -6- and in response to the question "what happened," appellant stated as he ran by, "I just shot some fool" because "he wouldn't come out of his shit." Lakeicha, consumed by curiosity, quickly left the apartment and went across the street to see what was going on. Geiter was 3 already there, as was Cleveland Police Officer Michael Kozart. Geiter and Kozart noticed the victim was laying on his back with his legs folded up underneath him and his jacket was laying some distance away. Both also observed the victim had a head wound which was leaking a good deal of blood and also some brain matter. The victim was soon transported to the hospital by EMS technicians. When time allowed, police officers on the scene began to ask for information about the shooting from the people who had gathered. Lakeicha approached Kozart and told him she could identify the shooter. To protect her, Kozart pretended she was a suspect and took her into custody. Appellant's girlfriend Celeste Cook was also in the crowd. After a few minutes, she returned to her apartment in the complex and saw appellant was inside. Soon thereafter, Geiter came in to use Cook's telephone. Geiter noticed appellant was "sweating" and "rocking back and forth" in a chair. Later, when his friend Jackson saw him at Cook's apartment, appellant told Jackson he had 3 Testimony established a police officer was in the immediate vicinity of the incident and thus heard the gunfire. Similarly, Kozart's zone car was less than a half mile from the scene, so the response time of the police was minimal. -7- made sure to wash his hands because "they might check for gunpowder." The victim died at the hospital the next morning. The autopsy established the cause of death as a "gunshot wound to the head with perforation of the skull and brain." The police investigation of the incident included a door-to- door canvassing of the people living in the apartment complex. Darby, Geiter and Johnson gave statements concerning the incident. Moreover, Anderson came to the police department at the instigation of his mother and gave a statement. All four witnesses identified appellant as the person they had seen in connection with the homicide. Appellant was arrested the following day, on January 16, 1995. Since he was fifteen years old, he initially appeared in the juvenile court division of the court of common pleas. Thereafter, appellant was transferred to the general division of the court of common pleas, where he was charged as an adult in a three-count indictment, viz., two counts of aggravated murder and one count of aggravated robbery. All of the counts contained a firearm specification and count two contained a felony murder specification. Appellant pleaded not guilty to the charges at his June 9, 1995 arraignment and was assigned counsel. On June 29, 1995, the trial court granted a defense motion for authorization to obtain a private investigator. On September 5, 1995, appellant filed a notice of alibi. Appellant's jury trial commenced on September 25, 1995. After the -8- presentation of the state's case-in-chief, appellant presented the testimony of three witnesses, all of whom stated that at the time of the incident, appellant had been getting his hair braided. Subsequently, the jury found appellant guilty of one count of murder, one count of aggravated murder with a felony murder specification, and one count of aggravated robbery, all with firearm specifications. Following a sentencing hearing, appellant was sentenced to consecutive terms of imprisonment of twenty years to life, five to twenty-five years, and three years for the firearm specification. He now appeals, presenting three assignments of error for this court's review. Appellant's first assignment of error follows: PROSECUTORIAL MISCONDUCT DURING TRIAL AND DURING CLOSING ARGUMENT DEPRIVED THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL. Appellant argues his conviction should be reversed based upon certain questions and comments by the prosecutor relating to appellant's alibi. Essentially, appellant contends the prosecutor's references to the timing of the filing of appellant's notice of alibi cast improper aspersions on the credibility of the defense. This court disagrees. Generally, the conduct of a prosecutor during trial cannot be made a ground of error unless the conduct is so egregious in the context of the entire trial that it renders the trial fundamentally unfair. State v. Papp (1978), 64 Ohio App.2d 203, cited with approval, State v. Maurer (1984), 15 Ohio St.3d 239. Moreover, it has been held the trial court must afford the prosecutor some -9- latitude and freedom of expression during argument. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Vrona (1988), 47 Ohio App.3d 145. Therefore, a defendant shall be entitled to a new trial only when a prosecutor makes improper remarks and those remarks substantially prejudice the defendant. See, e.g., State v. Smith (1984), 14 Ohio St.3d 13. Appellant asserts the following statements made by the prosecutor during closing argument constitute reversible error: MR. WETZEL: *** Now, she's going to stand by her son (sic). I have no problem by that. And she told the police that I gave him the alibi the night before. I have to disagree with that. What you have to do is take a look at the photographs. There's four of them. And this is done three days later after the murder. And if you're to believe that the police are not going to investigate everything and investigate every possible scenario, then tell me why Dayrome Anderson's picture is in the photo array? Give me one other possible reason except these two guys are doing their jobs. Mr. Ballou [Defense counsel] says they don't go out and investigate the alibi. They don't go out and investigate the alibi because they don't know of it. The first time alibi comes up is September 5th of 1995 when the defendant files a motion -- MR. BALLOU: Objection. MR. WETZEL; -- less than three weeks ago. MR. BALLOU: Objection. MR. WETZEL: Tiffany tells us September 12th the detectives interview her. Unquestionably, the reason they interview her then, that's the first time they're aware of it, not when Gail Crisp says it. These guys are out doing their jobs. A review of the trial transcript reveals appellant invited these remarks. State v. Ferguson (1991), 71 Ohio App.3d 342; see, -10- also, State v. Hartford (1984), 21 Ohio App.3d 29; State v. Woodruff (1983), 10 Ohio App.3d 326. As part of his defense strategy, appellant asked questions of the police on cross-examination and his own witnesses on direct examination to provide the basis for his argument that investigating detectives were not diligent in the investigation of the murder of Abdul Hakim Chui. A significant portion of closing argument was devoted to his inadequate investigation theory of the case. In response, the prosecutor countered appellant's attacks in his rebuttal argument by demonstrating the testimony could be viewed from a different perspective. In so doing, he was well within his prerogative, since he was merely attempting to rehabilitate testimony concerning the way the police investigation had been conducted. This court discerns no improper discrediting of appellant's alibi by the use of this tactic. A review of the record, therefore, fails to indicate that the prosecutor's questions of the witnesses and comments in his argument substantially prejudiced appellant and denied appellant his right to a fair trial. Cf. State v. Smith, supra. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE UNFAIRLY PREJUDICED OTHER ACTS TESTIMONY IN VIOLATION OF OHIO RULE OF EVIDENCE 404(B). Appellant argues his right to a fair trial was compromised by the admission of evidence that he had been adjudicated delinquent, -11- that he had been expelled from school, and that he had attempted to steal a coat a few days before the murder. Appellant cites Evid.R. 404(B) in support of his argument. Evid.R. 404 states in pertinent part the following: RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES (A) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, subject to the following exceptions: (1) Character of the accused. Evidence of a pertinent trait of his character offered by an accused or by the prosecution to rebut the same is admissible; *** * * * (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. R.C. 2945.59 comports with this rule of evidence and provides as follows: 2945.59 Proof of defendant's motive. In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. -12- It is thus well settled in Ohio that evidence of other crimes, wrongs or acts occurring prior to or subsequent to, and independent of, the acts for which appellant is on trial is generally not admissible to show appellant's character or propensity for crime. State v. Williams (1988), 38 Ohio St.3d 346; State v. Mann (1985), 19 Ohio St.3d 34, paragraph one of the syllabus. However, the evidence may be admitted if it either fits within one of the pertinent exceptions or is offered for a different purpose. State v. Smith (1990), 49 Ohio St.3d 137. In this case, appellant's aunt testified on direct examination as follows: Q. And how old was Dion when he first started to live with you? A. About nine or ten. Q. And he has been with you ever since? A. Yes. Q. On a continuous basis? A. Yes. * * * Q. And you have been wth (sic) Dion since he has been nine or ten years old? A. Yes. Q. And have you ever known Dion to do drugs? A. No. Q. And have you ever known Dion to carry a gun? A. No. * * * -13- Q. Now, if you are aware, is Dion in any gang? A. No. Q. And since Dion's been with you, since the age of nine or ten, Dion ever stayed out all night? A. No. Q. He ever (sic) ran away from home? A. No. Q. Would you describe his behavior in the house - - was he respectful, cooperative with you? A. Got along with everyone. Q. Did he do any chores in the house? A. All the time. Q. Would you describe that? A. Well, he does helps me with the laundry. He does the wishes, (sic), makes the beds and vacuum, and cleans bathrooms, stove, refrigerator, everything. He did it all. Thereafter, on cross-examination, the following exchange occurred: Q. Miss Crisp, you indicated Dion lived with you for six years? A. Yes. Q. Would you consider him like a son of yours? A. Yes. Q. And you indicated to Mr. Ballou that you're well aware of all of his activities, are you not? A. Yes. Q. Including on that night you remember his exact activities, do you not? -14- A. Yes. Q. You indicated Dion never had a gun before? A. Yes. Q. Well, in November of 1994 Dion was delinquent of CCW on him, wasn't he? MR. BALLOU: Objection. Q. Wasn't he? A. Well, him and some more boys, yes. * * * Q. Again, Miss Crisp, you're aware that Dion was found delinquent of carrying a weapon in November of '94, are you not? A. Yes, he has a record for it. * * * Q. And Dion, in fact, admitted his delinquency in that? A. What do you mean? Q. Dion was found delinquent of it? A. Yeah. Q. He was put on probation for having that weapon, was he not? A. Yes, he was. Q. Okay. You also indicated Dion doesn't do drugs, right? A. He really don't. Q. Raelly (sic) doesn't. Well, in October of 1993 he was found delinquent we know for using drugs? A. No. Q. He was not found delinquent in 1993? -15- A. Not for using drugs. Q. Sure about that? A. I'm pretty sure. Q. Let me see if I can help your memory a little bit. This is in October of 1993. Dion is already on probation; controlled substance. October of 1993 Dion later pled to delinquency and was put in an expulsion program. In other words, he was switched from the school where he was. Do you remember that now? A. There was not drugs. Q. Oh. And he just happened -- A. No, there was not drugs. It was something like drugs. They already said that. It was not drugs. As the foregoing demonstrates, appellant introduced evidence concerning his character, therefore, rebuttal evidence going to that issue was proper. Evid.R. 404(A)(1); State v. Robinson (1994), 98 Ohio App.3d 560; State v. Workman (1984), 14 Ohio App.3d 385; cf. State v. Parrish ((1991), 71 Ohio App.3d 659. See, also, State v. Nichols (1993), 85 Ohio App.3d 65. Appellant also challenges the admission of testimony concerning an incident which occurred a few days before the murder, viz., that appellant was expelled from school for trying to steal a coat. A review of the record, however, reveals defense counsel objected to the prosecutor's questions and the trial court sustained the objection, thus forestalling the inquiry. The trial court then instructed the jury to disregard any testimony given in response to the improper questions. Under these circumstances, -16- this court must conclude appellant was not prejudiced by the exchange, since a jury is presumed to follow the instruction of the trial court. Pang v. Minch (1990), 53 Ohio St.3d 186. In any case, the exchange concerning the reason for appellant's most recent expulsion was very brief and the prosecutor immediately proceeded to another line of inquiry. In light of the totality of the evidence against appellant, such a minor episode cannot be considered to rise to the level of reversible error. State v. Boulabiez (1994), 92 Ohio App.3d 238; State v. DeBoue (Mar. 11, 1993), Cuyahoga App. No. 61954, unreported. For the foregoing reasons, appellant's second assignment of error also lacks merit and is, accordingly, overruled. Appellant's third assignment of error states: THE TRIAL COURT ERRED BY ALLOWING IN IRRELEVANT HEARSAY INTO EVIDENCE. Appellant argues it was improper for the trial court to permit introduction of the following direct testimony from Dayrome Anderson: Q. He [the appellant] said you don't have to come to court? A. Yeah. Q. Now, Dion's brother that you mentioned before, have you talked with him recently? A. Yeah. Q. What did Dion's brother say to you? A. Just like -- MR. ADRINE [Defense counsel]: Objection, your Honor. -17- THE COURT: Sustained. Q. Did Dion's brother threaten you? MR. ADRINE: Objection, your Honor. * * * Q. Dayrome, let me retrace that. Has anyone threatened you regarding your testimony today? A. Well, I don't really call it a threat though, but he had his words. Q. What did he say to you? A. MR. ADRINE: Who? Objection. Q. Who said this to you. A. His brother. Q. Dion's brother? A. Yes. Q. When did he say this to you? A. Yesterday. Q. What did he say to you. MR. BALLOU [Defense Counsel]: Objection. THE COURT: He may state that. Q. Go ahead. What did he say to you? A. He said if my brother do time he going to break something. -18- Appellant asserts the foregoing testimony was inadmissible 4 hearsay, citing Evid.R. 801 and 802. However, the Ohio Supreme Court has recently stated as follows: Evid.R. 801(C) defines "hearsay" as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." (Emphasis added.) A witness is barred on hearsay grounds from testifying as to the statements made by another only when the statement is offered to prove the truth of the matter asserted in the statement, and only where the statement falls outside any exception to the rule against hearsay ***. State v. Carter (1995), 72 Ohio St.3d 545 at 549. To be inadmissible, therefore, the statement "must have as its primary value the showing of the truth which is asserted in the statement." Digital Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St.3d 36 at 42, citing Potter v. Baker (1955), 162 Ohio St. 488 (Emphasis added). It follows that when the statement is offered merely to establish that it was made, it does not fit the definition of Evid.R. 801(C), hence, it is not prohibited by Evid.R. 802. See, e.g., State v. Williams (1988), 38 Ohio St.3d 346 at 348; State ex rel. Montgomery v. Villa (1995), 101 Ohio 4 Evid.R. 802 states: RULE 802. Hearsay Rule. Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. -19- App.3d 478 at 486; see, also, In re Robert S. (1994), 98 Ohio App.3d 84. A review of Anderson's testimony reveals the statement was admitted not to prove that appellant would "break something." Rather, it was admitted to prove a threat against Anderson had been made. Moreover, a review of the transcript demonstrates Anderson was not the only prosecution witness threatened about testifying against appellant at his trial. Indeed, William Jackson, appellant's friend, testified appellant told him "if he [appellant] go (sic) to jail that I was going to be hit," i.e., killed. A trial court has broad discretion in the admission and exclusion of evidence and a reviewing court shall not reverse a trial court's judgment for failure to exclude evidence unless the trial court has clearly abused its discretion and the complaining party has suffered material prejudice. Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164; see, also, Evid.R. 403. On the basis of the entire record, this court cannot say that the admission of Anderson's testimony by the trial court was either irrelevant or unduly prejudicial. Accordingly, appellant's third assignment of error is also overruled. Appellant's convictions and sentences are affirmed. -20- 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 Cuyahoga County 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 M. PORTER, P.J., TERRENCE O'DONNELL, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .