COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69805 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION KENNETH HOWELL : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-327177 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES M. MORGAN, JR., ESQ. Cuyahoga County Prosecutor 11510 Buckeye Road Cleveland, Ohio 44104 ANTHONY J. BONDRA, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Kenneth Howell appeals from his jury convictions on two counts of felonious assault with accompanying firearm specifications. Defendant was indicted August 15, 1995, for the felonious assault of Arlo Ponder and James Crawford with accompanying firearm and violence specifications. The charges arose out of a shooting after the trio had been riding in an automobile smoking marijuana and/or drinking alcohol. The case proceeded to a jury trial that commenced September 25, 1995. The prosecution presented testimony from Ponder and Crawford, the two victims; Danielle Hassell, defendant's ex- girlfriend; and police officer Timothy Zikowski. Ponder knew defendant since high school. The two set out on the evening of June 29, 1995, in defendant's vehicle and picked up Crawford. During the course of the trip, Ponder replaced defendant as the driver of the vehicle. Ponder and Crawford testified that defendant, who was riding as a passenger in the rear seat of the automobile, subsequently shot each of them in the head and neck. Defendant testified following the denial of his motion for judgment of acquittal. Defendant maintained that he had merely gone with the victims to the area of the shooting but was not involved in the shooting. The jury found defendant guilty of both offenses as charged in the indictments. On the firearm specifications the trial - 3 - court sentenced defendant to a single three-year term of actual incarceration, followed by concurrent indefinite terms of five to fifteen years on the felonious assault convictions. Defendant timely appeals raising three assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT-APPELLANT'S MOTION FOR AN IN CAMERA INSPECTION OF WITNESS CRAWFORD'S STATEMENT IN VIOLATION OF CRIMINAL RULE OF PROCEDURE 16(B)(1)(g), THEREBY PRECLUDING HIS OPPORTUNITY TO IMPEACH CRAWFORD AND VIOLATING HOWELL'S RIGHT TO A FAIR AND IMPARTIAL TRIAL. This assignment lacks merit. Defendant argues the trial court improperly denied his request during cross-examination of Crawford to conduct an in camera review of Crawford's pretrial statement to the police on the grounds that the request was untimely made. Moreover, defendant contends that denying him the opportunity to use the statement deprived him of a fair trial because the statement was materially inconsistent with Crawford's testimony during trial. Crim.R. 16(B)(1)(g) governs the in camera inspection of witness' pretrial statements and provides in pertinent part as follows: Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. The record shows the trial court denied defense counsel's motion for an in camera inspection of Crawford's statement, - 4 - because defense counsel did not make the motion until after he had begun cross-examination of Crawford at trial. (Tr. 121- 122.) It is well established, however, that a motion for an in camera inspection need not be made immediately at the conclusion of the witness' direct testimony. Rather, a motion is timely made anytime after completion of direct examination prior to completion of cross-examination. State v. Schnipper (1986), 22 Ohio St.3d 158, 159-160; State v. Wilson (1985), 23 Ohio App.3d 111, 114; State v. Ellis (1975), 46 Ohio App.2d 102, 103-104. Although the trial court should have conducted an in camera review of Crawford's statement, we find the failure to do so did not constitute reversible error in this case. The trial court included Crawford's one-page statement to the police in the record on appeal. After reviewing the statement and Crawford's testimony at trial, we find there are no material inconsistencies between Crawford's trial testimony and pretrial statement. Crawford repeatedly identified defendant as the assailant. Crawford's statement to the police four days after the shooting while he was in the hospital describes the incident in the same basic terms as his testimony at trial. In both his pretrial statement and trial testimony, Crawford also admitted, contrary to his own interest, that he smoked marijuana on the evening prior to defendant shooting him. Defendant contends that three material inconsistencies exist between Crawford's pretrial statement and trial testimony. Defendant specifically complains there were conflicting details - 5 - in Crawford's testimony and prior statement concerning the time when he first joined the others, the location where Ponder began driving, and whether an "argument" occurred prior to the shooting. We note initially that none of the alleged inconsistencies has anything to do with the actual shooting. The record, however, shows only one minor difference between Crawford's statement to the police and his trial testimony. This detail concerned when defendant first drove to Crawford's house to pick him up before the trio began riding in defendant's vehicle. Crawford testified at trial that defendant and Ponder picked him up at 9:30 p.m., whereas his pretrial statement said this event occurred at 10:30 or 11:00 p.m. Defendant does not contend that the timing of this event was a central dispute in the case because he admittedly had been riding with the trio for an extended period of time in the evening before the shooting. Beyond this one minor difference, the record does not show any inconsistency, material or otherwise, between Crawford's pretrial statement and trial testimony. We specifically note, contrary to defendant's argument, that in both his statement to the police and his testimony at trial, Crawford said that Ponder began to drive the vehicle after the trio stopped at the second gas station. Defendant's remaining contention of an inconsistency likewise lacks merit. Defendant complains that to provide a motive for the shooting, Crawford "hinted" at trial that the parties had an "argument" before the shooting, but Crawford's - 6 - statement before trial did not mention any "argument." This argument is false and is squarely contradicted by the record. The record shows that both Crawford's statement to the police and his trial testimony mention a discussion concerning where the trio should proceed after stopping at the second gas station. (Tr. 89-90; 117-118.) Moreover, Crawford never characterized this discussion as an "argument," nor did he "hint" it. In fact, Crawford expressly denied that defendant was "mad" during this discussion. (Tr. 118.) Under the circumstances, we find no material inconsistency between Crawford's actual trial testimony and his pretrial statement. Finally, we note that even if any inconsistency existed between the pretrial statement and trial testimony as defendant argues, it was so inconsequential that any error from denying use of the pretrial statement was harmless. State v. Schnipper, supra at 160; State v. Ellis, supra at 105. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSE OF FELONIOUS ASSAULT. This assignment lacks merit. Defendant contends the trial court improperly denied his motion for judgment of acquittal, because the prosecution presented insufficient evidence to prove that he shot the two victims. - 7 - The court in State v. Martin (1983), 20 Ohio App.3d 172, described the standard governing claims that the evidence is insufficient to support a conviction as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Id. at 175. Defendant was charged with knowingly causing serious physical harm, or causing or attempting to cause, physical harm to the two victims by means of a deadly weapon or dangerous ordnance in violation of R.C. 2903.11(A). Both victims testified that defendant shot them in the neck and head. The medical evidence was undisputed. When viewed in the light most favorable to the prosecution, the evidence was sufficient to prove defendant committed these two offenses. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. This assignment lacks merit. Defendant contends that his convictions are against the manifest weight of the evidence because the testimony of the two victims was not credible. Defendant argues the two victims were intoxicated and did not immediately identify him as the - 8 - assailant. The prosecution showed no reason, moreover, why defendant would make a completely unprovoked attack. The Martin Court summarized the standard governing claims that a conviction is against the manifest weight as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such 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. Id. at 175. After reviewing the record in compliance with this standard, we find defendant has failed to show the jury committed a miscarriage of justice in this case. As noted above, each victim identified defendant as the assailant. Moreover, defendant admitted to driving with the victims prior to the shooting. Thus defendant was at the scene of the crime. Defendant claimed merely that he was not the person who shot them. There was no testimony, however, that a fourth person joined defendant and the victims in the vehicle before the shooting. The jury had a superior opportunity to observe the victims and defendant and their demeanor when it determined the weight to be given their testimony. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 9 - 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 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 .