COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70091 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DOREZ WHITTSETTE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-321702 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square DANIEL SCHIAU, ESQ. Suite 1016 Assistant County Prosecutor Cleveland, Ohio 44113-2098 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, J.,: Defendant-appellant, Dorez Whittsette, appeals a decision by the trial court convicting him of felonious assault and having a weapon while under a disability and sentencing him accordingly. 1 Whittsette assigns ten errors for our review. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On November 6, 1995 a jury found Dorez Whittsette guilty of aggravated assault and having a weapon while under a disability. The state indicted Whittsette for felonious assault of Damon Lambert. Although Whittsette's father, Leslie Smith, was also charged with felonious assault on Damon Lambert, Damenn Simon, and Wayne Clark, his case is not before this court. The state's case against Whittsette in substance alleged Whittsette fired several shots in the air and then pointed his gun at Lambert and shot him. The events of the shooting were detailed by several of the state's witnesses. On February 4, 1995 Damon Lambert attended a party with Wayne Clark and Damenn Simon. It was a birthday party given by Ernest Smith for his three daughters. Many of the guests attending the party were Smith's family members. Damenn Simon is Ernest Smith's nephew. 1 See Appendix. -4- According to Wayne Clark's testimony, at some point and for no reason he was punched by Leslie Smith. Clark testified he was leaving the bar when Leslie Smith struck him. Apparently, Leslie Smith had attempted to diffuse an argument between Ernest Smith and his wife. Leslie Smith says it was at this time that Wayne Clark struck him. Regardless of the reason Wayne Clark and Leslie Smith fought, the fight quickly spread throughout the bar. The management ordered all of the guests to leave. Clark testified he and Damenn Simon left the bar. Once they got outside, Leslie Smith confronted Clark again. Leslie Smith pulled out a revolver and hit Clark several times in the eye. Clark also claimed a woman from the party approached him and began hitting him in the head with her shoe. According to Clark, the assault on him ended when Damon Lambert approached him and announced that the police were coming. According to Clark, Leslie Smith then stepped back, turned and fired the revolver, striking Damenn Simon who was standing nearby. Immediately thereafter, Lambert started to run away. Dorez Whittsette appeared and fired several shots into the air. He then pointed the gun at Lambert and shot him. Damenn Simon and Wayne Clark corroborated Damon Lambert's story. However, Ernest Smith, Leslie Smith, and Dorez Whittsette testified Wayne Clark punched the bouncer after the bouncer approached Ernest Smith to talk with him about the argument with his wife. According to their version, Damenn Simon started to -5- attack Leslie Smith. Thereafter, Clark hit Dorez Whittsette. Damenn Simon then hit Whittsette on the head with a chair. Family members pushed Ernest Smith and Dorez Whittsette out of a side door. Leslie Smith walked around to the front door where he was confronted by Clark. The two men began fighting again. Leslie Smith claimed to have blacked out at that point. Whittsette testified Leslie Smith was rendered unconscious after being hit by Damon Lambert. According to Whittsette, Lambert began rifling through Leslie Smith's pockets. As Whittsette chased Lambert away, he heard several gunshots. He then ran to get help for his father. Whittsette and Leslie Smith both denied having guns and denied firing any shots. After a jury trial, Leslie Smith was acquitted of all charges. Whittsette was acquitted of felonious assault on Damon Lambert but convicted of aggravated assault with firearm and violence specifi- cations, and having a weapon while under disability. Whittsette was sentenced to three years on the firearm specification, consec- utive one to five years for aggravated assault, and concurrent eighteen months for having a weapon while under disability. This appeal followed. The issue raised by Whittsette's first assignment of error is whether the trial court erred by substituting an alternate juror during deliberations. In response to this issue, we think not. Crim.R. 24(F) provides as follows: The court may direct that not more than six jurors in addition to the regular jury be called and impanelled to sit as alternate -6- jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. *** An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. In this case, the trial court permitted the alternate juror to sit in on the deliberations from the outset. Now, we're going to do something a little bit different since it's late in the day and I hate to spend all of this time on a jury and let the alternate just walk home scott free. So what I'm going to do, and they do this in federal court, I would ask you to go back in deliberations before everyone goes home tonight and I'm asking you to sit in the jury room not as a member of the jury, but as an alternate. Please do not say anything, but I want you to listen to each and everything that is going on in there, but you cannot say anything, okay? The reason why we're doing this, if for some reason one person cannot make it in tomorrow, then this alternate juror is going to be in tomorrow morning at 9 o'clock anyway and since she was going to be part of the deliberations, if you're going to deliberate a little bit tonight, I want her part of it. (Tr. 1390) Defendant's trial counsel agreed to allowing the alternate juror to sit in on the deliberations. The following day, the trial court released one of the jurors and substituted the alternate juror in his place, the same alternate juror who had been in the deliberations room from the outset. Thereafter, the jury resumed its deliberations. In State v. Manning (May 2, 1996), Delaware App. No. 95 CA C 07044, unreported, the court held any error in substituting an -7- alternate juror for a regular juror after the start of deliberations is waived unless a timely objection is made. In Manning, the trial court decided to allow an alternate juror to sit in on deliberations "in the event that we lose a juror during the time of the deliberations." The trial court reasoned that the alternate juror "would have taken part in the deliberation up to that point and they can vote." The court of appeals found the trial court's position was error but refused to reverse the case because defense counsel consented to the procedure. "[A] litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible." Id. [citing State v. Kollar (1915), 93 Ohio St.3d 89, 91] In State v. Fisher (March 12, 1996), Franklin App. No. 95APA04-437, unreported, the trial court was aware that one of the jurors might be unavailable to deliberate beyond the first day. The trial court instructed the alternate juror to sit in on the deliberations, but not to participate. After the jury had deliberated for several hours, the trial court told the jury that the alternate juror would be replacing the regular juror at the beginning of the next day of deliberation. No objection was made. The court of appeals ruled that, although the procedure violated Crim R. 24(F), it was not plain error unless the defendant shows that he was prejudiced thereby. In Fisher, the court held the defendant was not prejudiced where the trial court specifically -8- instructed the new juror to express her viewpoints and the deliberations continued for some time after the substitution was made. Id. However, in State v. Miley (1991), 77 Ohio App.3d 786, the court of appeals reversed the appellant's convictions because the trial court substituted an alternate juror after a partial verdict had been returned but did not instruct the jury to begin its deliberations anew. The appellate court reasoned that, by making the substitution without instructing the jury to start its deliberations over again, the trial court deprived the defendant of his right to have all jurors participate together in the deliberations which lead to the verdict. Id. at 792. After viewing the appropriate case law, it is clear that Whittsette was not prejudiced by the court's action. The alternate juror had been in the deliberations from the beginning, although not participating. The defense had agreed to the procedure and made no objection. The length of time of the deliberations seemed minor. In Miley the court reasoned that "where the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-finding or reached a determination of guilt or innocence, the new juror is likely to be faced with closed or closing minds. In such a situation it is unlikely that the new juror will have a fair opportunity to express his or her views and to persuade others. Similarly the new juror *** may be forced to accept findings of -9- fact upon which he or she has not fully deliberated. Miley at p. 792-793. This does not appear to be the situation here. In Miley the jury had reached a partial verdict. Besides, Whittsette did not object. Under the circumstances plain error does not exist. To show plain error Whittsette must show but for the error the outcome of the trial would clearly have been different. State v. Long (1978), 53 Ohio St.2d 91; State v. Greer (1988), 39 Ohio St.3d 236; State v. Moreland (1990), 50 Ohio St.3d 58. This, he has not done. Consequently, Whittsette's first assignment of error is overruled. In evaluating Whittsette's second assignment of error, we must determine whether the trial court erred in answering jurors' questions outside the presence of Whittsette and his trial counsel. Crim.R. 43 provides "the defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules." However, Crim.R. 43 also provides that a defendant's voluntary absence after the trial has been commenced in his presence does not prevent the trial from continuing through to a verdict. In this case, there is no evidence the court failed to notify Whittsette of the jury's questions or that he was prevented from being present while the trial court answered the questions. Because we have no evidence to the contrary, we conclude Whittsette's absence was voluntary and overrule his second assignment of error. -10- In his third assignment of error, Whittsette argues the trial court erred by answering an extemporaneous question by a juror. In response to a written jury question, the trial court gave the jury the following instructions: Now, for purposes of this case, the offense of aggravated assault is distinguished from felonious assault by the presence of sudden passion or a sudden fit of rage, on the part of either or both of the defendants, brought on by serious provocation occasioned by the victim. Now, an aggravated assault, therefore, occurs when a defendant knowingly causes serious physical harm to another, or causes or attempts to cause physical harm to another by means of a deadly weapon or dangerous ordnance while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victims that is reasonably sufficient to incite that defendant into using deadly force. (Tr. 1398). The court then read the definition of "sudden passion" or "sudden fit of rage." Immediately thereafter, a juror asked the following questions: JUROR: Is the issue still with aggravated assault one of using a deadly weapon? Is it still the use of a deadly weapon, right? COURT: Yes. JUROR: So it's a lesser charge, but it says that you used a deadly weapon to commit that? COURT: Uh-huh. I'm going to just read it all to you. (Tr. 1398-1399) The court then completely re-instructed the jury on how the existence of serious provocation could reduce felonious assault to -11- aggravated assault. Whittsette argues the court's answer placed undue emphasis on one aspect of the case. We disagree. By re- reading the entire instruction, the court avoided placing undue emphasis on any one aspect of the offense. There was nothing erroneous about the court's instructions or the manner in which they were given. The oral jury questions evidenced the jurors' attempts to understand the court's response to the written question and did not raise additional issues beyond the scope of the written question. Accordingly, we overrule Whittsette's third assignment of error. In his fourth assignment of error, Whittsette challenges the trial court's decision to allow Detective Matthew Balli to testify about a gunshot wound. Balli testified that he had seen "quite a few" people who had been shot. He added that he has seen wounds caused by .22 caliber guns as well as wounds caused by higher caliber guns. Based upon his experience, he testified there was a "minute possibility" that Damenn Simon's injury was caused by a .22 caliber gun but said, "I doubt it." Balli testified as to his familiarity with guns and past experience observing gunshot wounds made by various caliber guns. Balli's testimony was proper under Evid.R. 701 which provides that a lay witness can give testimony in the form of opinions which are rationally based on his perceptions and are helpful to understanding his testimony or determining a fact in issue. See State v. Norman (1982), 7 Ohio App.3d 17 (a police officer can give his non-expert opinion about the shot -12- pattern of a shotgun if his opinion is based on his experiences and observations and the opinion helps to explain his testimony.) Whittsette also argues the court's instructions to the jury on aggravated assault improperly allocated the burden of proof. He argues the trial court's jury instructions improperly placed upon the prosecution the burden of proving extreme provocation. We disagree. The instructions given by the trial court included the following statement: If you find beyond a reasonable doubt that the state proved all the elements of felonious assault in *** Count 3 as to Defendant Dorez Whittsette, but if you decide from all the evidence in any of these counts that the *** Defendant Dorez Whittsette acted under the influence of sudden passion or in a sudden fit of rage, either of which was brought on by serious provocation occasioned by *** Damon Lambert as to Count 3, a provocation that is reasonably sufficient to incite that defendant into using deadly force, then your verdict must be guilty of aggravated assault in that count as to that defendant. (Emphasis added) (Tr. 1372-1373) The court's instructions clearly outlined the state's burden to prove the elements of felonious assault. The instructions did not impose upon the state the burden to prove sudden passion or sudden fit of rage. The instructions clearly specified that the jury was to consider all the evidence to determine whether Whittsette acted under a sudden passion or sudden fit of rage. Whittsette's fifth assignment of error is overruled. In his sixth assignment of error, Whittsette argues the trial court improperly overruled his motions for acquittal. In reviewing -13- the trial court's rulings on a Crim.R. 29 motion, we must decide whether, after viewing the evidence in the light most favorable to the state, reasonable minds might reach different conclusions about whether each material element of the crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, at syllabus. To convict Whittsette of felonious assault, the state had to show that he knowingly caused physical harm to Damon Lambert by means of a deadly weapon or dangerous ordnance. The medical records introduced by the state clearly showed that Lambert was shot. The state also presented testimony from several witnesses that Whittsette used a gun to shoot Lambert. Construing the evidence most strongly in favor of the prosecution, we find that reasonable minds could reach different conclusions as to whether each element of the offense was proven beyond a reasonable doubt. Whittsette also argues there was not enough evidence of sudden passion, sudden fit of rage, or provocation to support a conviction for aggravated assault. However, the evidence showed that Whittsette was involved in a fight with Wayne Clark inside the bar. Whittsette testified that once outside, he saw Clark attack his father. When he went to intervene, Whittsette stated he was attacked by Michael Howard, a friend of Clark and Lambert. Whittsette testified that he then saw Lambert punch his father and render him unconscious. He also claimed that Lambert went through his father's pockets. Immediately thereafter, Whittsette admits running after Lambert. -14- We find that this evidence, if believed, was enough to support a finding of serious provocation. Whittsette's sixth assignment of error is overruled. Whittsette next argues his convictions were against the manifest weight of the evidence. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. In this case, the jury was faced with conflicting testimony about the events leading up to the shooting of Damon Lambert. Several witnesses, including the victim, identified Whittsette as the man who shot Damon Lambert. Whittsette denied having a gun or shooting anyone. However, the resolution of such conflicts is a matter for the jury to determine. See State v. Jenks (1991), 61 Ohio St.3d 259, 279. The jury clearly chose to believe the witnesses who testified that Whittsette shot Lambert. We cannot say the jury's decision created a manifest miscarriage of justice that would necessitate a reversal of Whittsette's conviction. Whittsette's seventh assignment of error is overruled. In his eighth assignment of error, Whittsette argues he was improperly subjected to multiple punishments by being convicted and -15- sentenced twice for the same firearm. This issue was addressed in State v. Blankenship (1995), 102 Ohio App.3d 534, 547. In Blankenship, the court found no error in the trial court's failure to merge a firearm specification with an accompanying charge of having a weapon while under disability. The Blankenship court held a firearm specification was not a separate offense, but is merely a sentence enhancement. Consequently, the court held a firearm specification cannot be an allied offense of similar import under R.C. 2941.25. Id. at 547. Whittsette was convicted for having a weapon while under disability because he acquired, had, carried, or used a weapon while under disability. The fact that Whittsette had a firearm on or about his person while committing the felony of aggravated assault formed the basis for his conviction on the firearm specification. A person can "acquire, have, carry or use" a firearm or dangerous ordnance without using it to commit an aggravated assault. See State v. Rice (1982), 69 Ohio St.2d 422, 425. The offenses of having a weapon while under disability and having a gun while committing a felony are separate offenses. Consequently, the trial court did not violate the Double Jeopardy Clause by convicting Whittsette of both offenses. In his ninth assignment of error, Whittsette argues the trial court violated the double jeopardy clause by giving him an indefinite sentence for aggravated assault. Whittsette begins his argument with an incorrect premise. He claims that "defendant could not commit the principal offense of aggravated assault -16- without causing physical harm." However, R.C. 2903.12(A)(2) provides that a person may commit aggravated assault by causing or attempting to cause physical harm to another by means of a deadly weapon or dangerous ordnance. Therefore, a person may commit aggravated assault without causing physical harm. Furthermore, Whittsette waived this argument because he failed to raise it before the trial court. "Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal." State v. Awan (1986), 22 Ohio St.3d 120 at syllabus. See also State v. Thompkins (1996), 75 Ohio St.3d 558, 560, fn. 2; State v. Green (1993), 66 Ohio St.3d 141, 151; State v. Carter (1992), 64 Ohio St.3d 218, 227; State v. Rojas (1992), 64 Ohio St.3d 131, 138; State v. Cook (1992), 65 Ohio St.3d 516, 529. Whittsette's tenth assignment of error is overruled. Having overruled Whittsette's ten assigned errors, this matter is affirmed. Judgment affirmed. -17- 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, C. J. PATTON, J., CONCUR. PATRICIA ANN BLACKMON, 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 of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). -18- APPENDIX I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WITHOUT DEFENDANT BEING PRESENT DURING DELIBERATIONS AND AFTER ANSWERING A JURY QUESTION, SUBSTITUTED AN ALTERNATE JUROR. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ANSWERED QUESTIONS IN THE ABSENCE OF DEFENDANT AND HIS COUNSEL. III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT, WITHOUT DEFENDANT BEING PRESENT ANSWERED A EXTEMPORANEOUS QUESTION FROM A JUROR AND TO THE JURY WHEN THE COURT WAS ANSWERING A WRITTEN QUESTION BY THE JURY. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED DET. MATTHEW BALLI TO TESTIFY CONCERNING A GUNSHOT WOUND. V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT PROPERLY ALLOCATE THE BURDEN OF PROOF UPON AGGRAVATED ASSAULT. VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN MOTIONS FOR JUDGMENT OF ACQUITTAL WERE OVERRULED ALLOWING DEFENDANT TO BE CONVICTED OF THE OFFENSE OF AGGRAVATED ASSAULT. VII. DEFENDANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. VIII. DEFENDANT WAS SUBJECTED TO MULTIPLE PUNISHMENTS WHEN HE WAS SENTENCED AND CONVICTED TWICE FOR THE SAME FIREARM. IX. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT NOT TO BE PLACED TWICE IN JEOPARDY WHEN HE WAS SENTENCE[D] TO AN INDEFINITE SENTENCE FOR THE OFFENSE OF AGGRAVATED ASSAULT. X. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE OHIO LEGISLATURE PROVIDED FOR TWO .