COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70400 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIE MURPHY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-330577. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John R. Mitchell, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Valerie R. Arbie, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, OH 44113-1569 -2- DAVID T. MATIA, J.: Willie Murphy, defendant-appellant, appeals his conviction in Cuyahoga County Court of Common Pleas, Criminal Division, of felonious assault in violation of R.C. 2905.01. Defendant- appellant raises three errors for review. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On November 21, 1995, the Cuyahoga County Grand Jury returned a three count indictment against Willie Murphy, defendant- appellant. The indictment charged defendant-appellant with one count of felonious assault, one count of attempted rape and one count of kidnapping. Since defendant-appellant had a prior conviction for aggravated robbery, all counts included an aggravated felony specification. At trial, the state presented three witnesses on direct examination and one rebuttal witness. The defense presented defendant-appellant as its sole witness. The victim testified that she was in a verbally and physically abusive relationship with defendant-appellant since March of 1994. The victim testified that at times she would have sex with defendant- appellant because she was tired of him hurting her. On September 27, 1995, the victim testified that she went to see defendant-appellant and give back a radio. The victim testified she believed defendant-appellant was drunk and that he wanted to have sex with her. When she refused, defendant- appellant "slammed" her against a building and began choking her. -3- The victim testified she believed defendant-appellant was going to rape her. As the victim attempted to fight him off, the radio fell on the ground and broke. Defendant-appellant became even more angry and began slapping her across the face. The victim managed to break loose and attempted to run across the street. However, defendant-appellant grabbed her. During this struggle, defendant-appellant would push the victim in front of traffic and then pull her back before being hit. The victim eventually broke free and attempted running across the street. She testified that defendant-appellant kicked her in the back of her leg and kneecap. She collapsed with a broken leg. Eventually, defendant-appellant called for an ambulance and called the victim's parents. The victim spent approximately one week in the hospital with a broken tibia. After the incident, the victim testified that defendant-appellant not only expressed concern that he may be going to prison for this but he also asked the victim to tell police either he didn't do it or that it was an accident. The state also presented the testimony of Officer Cudo who was flagged down by the EMS vehicle that was tending to the victim. Officer Cudo testified that the victim was upset and told them what defendant-appellant had done. Officer Cudo and his partner then began looking for and eventually arrested defendant- appellant. -4- The state also presented the testimony of Detective Moran who was in charge of the investigation of the incident. Detective Moran testified that he took the statement from the victim and that it was consistent with the testimony she gave at trial. After the presentation of the state's case, defendant-appellant motioned for acquittal as to the kidnapping and attempted rape charges. This motion was denied. Defendant-appellant testified that he had known the victim for approximately one and one-half years. Defendant-appellant testified that after he and the victim purchased some beer, she began arguing with him about a woman he had been seeing. During this argument, the victim began hitting and scratching defendant- appellant. Moreover, as defendant-appellant was attempting to walk away, she threw the radio at him. The radio fell to the ground and broke. When defendant-appellant turned around, he witnessed the victim lying on the ground. Defendant-appellant denied pushing the victim to the ground or kicking her. Finally, defendant-appellant testified that after calling 911, he called the victim's step-mother. However, he denied ever telling her that he was afraid that he would have to go to jail for the injuries sustained by the victim. The victim's mother was then called to the stand by the state as a rebuttal witness. She testified that when defendant- appellant called her, she told him to call 911. However, defendant-appellant refused to call because if he did, they would take him to jail. Defendant-appellant was found guilty of -5- felonious assault but not guilty of kidnapping and attempted rape. Defendant-appellant was sentenced to a term of incarceration of eight to fifteen years at the Lorain Correctional Institute. Defendant-appellant files this appeal. II. FIRST AND SECOND ASSIGNMENTS OF ERROR As Willie Murphy's, defendant-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them simultaneously: I. THE INCLUSION OF PREJUDICIAL OTHER ACTS TESTIMONY IN VIOLATION OF EVIDENCE RULE 404(B) DENIED APPELLANT A FAIR TRIAL AS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. II. THE INCLUSION OF PREJUDICIAL IRRELEVANT TESTIMONY REGARDING APPELLANT'S AND THE COMPLAINANT'S RELATIONSHIP DENIED APPELLANT A FAIR TRIAL AS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING EVIDENCE OF "OTHER ACTS" UNDER EVID.R. 404(B) AND 403(A). Defendant-appellant argues the trial court committed prejudicial error in permitting evidence of other acts which depicted defendant-appellant as abusive. Specifically, defendant-appellant argues that for the following reasons, the evidence is not admissible under Evid.R. 404(B): 1) the "other acts" did not tend to demonstrate a "plan or scheme" as the acts -6- were not closely connected to the alleged felonious assault, 2) the "other acts" were not offered to prove any element of felonious assault and 3) the admission of evidence, which was offered to prove defendant-appellant acted in conformity with, was clearly prejudicial since the state's case rested solely upon the recollections of an admitted alcoholic and drug user who was not even clear as to when the events took place. Defendant-appellant then argues in his second assignment of error that not only is the evidence of "other acts" regarding the relationship between defendant-appellant and the victim irrelevant to the charge, but also that any probative value accorded to this evidence is substantially outweighed by its prejudicial nature. Defendant-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: EVID.R. 401, 403(A) and 404(B). It is well settled that the addition, admission or exclusion of evidence is a matter committed to the sound judicial discretion of the trial judge. State v. Bailey (1992), 83 Ohio App.3d 749. Consequently, for the admission of certain evidence to be overturned on appeal, there must be a showing that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Davis (1988), 49 Ohio App.3d 109; State v. Adams (1982), 60 Ohio St.2d 151. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the -7- determination of the action more probable or less probable than it would be without the evidence. Evid.R. 401. Additionally, pursuant to Evid.R. 403(A), evidence, although relevant, is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Again, the determination of the admission or exclusion of evidence is within the discretion of the trial court and will not be reversed without abuse of discretion. State v. Combs (1991), 62 Ohio St.3d 278. It is important to note that Ohio's Evid.R. 403(A) is more strict than its federal counterpart. The Ohio rule makes exclusion mandatory if the probative value is substantially outweighed by the prejudice, whereas Federal Evid.R. 403 is discretionary. Additionally, when determining whether the probative value is outweighed, a court should consider whether other non-prejudicial proof is offered on the same point. In other words, "[o]ther means of proof may also obviate the need for the introduction of unfairly prejudicial evidence." Giannelli, Ohio Evidence Manual, Section 403.06, p.22; State v. Williams (1976), 47 Ohio App.2d 330. With regards to evidence of "other acts," the general rule is that evidence which tends to show that the accused has committed other crimes and/or acts independent of the crime for which he/she is on trial is not admissible to show the defendant acted in conformity with character. State v. Mann (1985), 19 Ohio -8- St.3d 34. However, this general rule is subject to a number of exceptions which are set forth in Evid.R. 404(B) which reads: (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. This rule is in accord with R.C. 2945.59 which reads: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, of the defendant's scheme, plan or system in doing any 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, of 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. Under this section, evidence of other acts is admissible if the evidence tends to prove, by substantial proof, a specific element of the crime charged or one of the matters specifically enumerated in the statute. State v. Curry (1975), 43 Ohio St.2d 66; State v. Smith (1990), 49 Ohio St.3d 137. However, such evidence is never admissible when its sole purpose is to establish that the defendant committed the act alleged of him in the indictment. State v. Flonnory (1972), 31 Ohio St.2d 124. Finally, in State v. Broom (1988), 40 Ohio St.3d 277, the Ohio State Supreme Court stated that because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the common law with respect to -9- evidence of other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility of such evidence is strict. See, also, State v. Coleman (1989), 45 Ohio St.3d 298. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE OF DEFENDANT-APPELLANT'S OTHER ACTS. In the case sub judice, the trial court permitted the state to introduce evidence that defendant-appellant had been physically abusive towards the victim in the past. This testimony, the state contends, was introduced for the purpose of rebutting defendant-appellant's claim that the victim must have "accidentally" broken her leg. When the purpose of other acts is to show the absence of mistake or accident on the part of the defendant in committing the offense charged, it must be shown that a connection, in the mind of the defendant, must have existed between the offense in question and the other acts of a similar nature. See State v. Moore (1948), 143 Ohio St. 226. The other acts of the defendant must have such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question. The evidence is then admissible to the extent it may be relevant in showing the defendant acted in the absence of mistake or accident. See State v. Watkins (Sept. 28, 1989), Cuyahoga App. No. 55904, unreported. -10- In this case, defense counsel argued, and defendant-appellant testified, that the injury to the victim must have been caused by an accident. The evidence of "other acts" tended to demonstrate that defendant-appellant had been physically abusive towards the same victim in the recent past. While removed in time, we find the "other acts" involve similar circumstances between the same parties and have a sufficiently temporal, modal and situational relationship to the crime charged. The evidence is therefore admissible to the extent that it is relevant in showing the absence of accidental injury. See, also, State v. Weems (April 9, 1996), Summit App. No. 17422, unreported. Moreover, we do not find the evidence to be of such a prejudicial nature as to substantially outweigh its probative value regarding absence of mistake. Finally, assuming arguendo that the admission of "other acts" was in error, we find that the remaining evidence of guilt was of such weight that it was harmless error beyond a reasonable doubt. See, State v. Gumm (1995), 73 Ohio St.3d 413; State v. Watkins, supra. For these reasons, the trial court did not abuse its discretion in admitting into evidence the "other acts" of defendant-appellant to establish absence of accident. Defendant- appellant's first and second assignments of error are not well taken. III. THIRD ASSIGNMENT OF ERROR -11- Willie Murphy, defendant-appellant, states as his third assignment of error: III. MR. MURPHY'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR WHEN THE PROSECUTING ATTORNEY FORCED HIM TO EXPRESS HIS OPINION AS TO THE TRUTHFULNESS OF THE STATE'S WITNESSES. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING CERTAIN CROSS-EXAMINATION. Defendant-appellant argues the trial court denied defendant- appellant a fair trial by permitting the prosecuting attorney to question defendant-appellant as to the truthfulness of the state's witnesses. Defendant-appellant's third assignment of error is not well taken. B. DEFENDANT-APPELLANT'S FAILURE TO OBJECT AT TRIAL WAIVES THIS CLAIM ON APPEAL. It is clear from the record that defendant-appellant failed to object to the line of questioning by the prosecuting attorney which he now appeals. It is well established that an appellate court need not consider an error which a party complaining of could have, but did not call, to the trial court's attention when such error could have been avoided or corrected at trial. See State v. Comen (1990), 50 Ohio St.3d 211; State v. Green (1990), 67 Ohio App.3d 72. -12- Moreover, keeping in mind that the court of appeals should take notice of plain error hastily, see State v. Long (1978), 53 Ohio St.2d 91, we find the claimed error to be harmless due to the weight of evidence supporting defendant-appellant's conviction. Defendant-appellant's third assignment of error is not well taken. Judgment affirmed. -13- 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. BLACKMON, P.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA 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 .