COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70533 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION EARL A. McCOY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 5, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-329,684 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT DUBYAK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: EDWARD S. WADE, JR. Attorney at Law 75 Public Square, #1111 Cleveland, Ohio 44113 CHARLES D. ABOOD, J.: This is an appeal from the judgment of the Cuyahoga County Common Pleas Court in which appellant Earl McCoy was convicted, following a trial by jury, of one count of felonious assault, in violation of R.C. 2903.11, and one count of having a weapon while under disability, in violation of R.C. 2923.13, and a violence and firearm specification as to each count. In support of his appeal, appellant sets forth the following assignments of error: ASSIGNMENT OF ERROR NO. I DEFENDANT-APPELLANT'S CONVICTIONS WERE CON- TRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. ASSIGNMENT OF ERROR NO. II PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED WHEN IT PERMITTED TES- TIMONY OF OTHER CRIMES, ACTS, OR WRONG, ATTRIBUTED TO DEFENDANT-APPELLANT TO BE IN- TRODUCED OVER OBJECTION AND BY ITS FAILURE TO GIVE LIMITING INSTRUCTION BOTH DURING THE COURSE OF TRIAL AND IN THE GENERAL CHARGE TO THE JURY, THE PURPOSE FOR WHICH EVIDENCE PRE- SENTED BY THE PROSECUTOR COULD BE USED. - 3 - ASSIGNMENT OF ERROR NO. IV DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. The facts that are relevant to the issues raised on appeal are as follows. On July 14, 1995, Sherman McBride was in the area of East 108th Street and Aetna Avenue in Cleveland talking with some friends when some other persons approached and an exchange took place that concluded with McBride being shot in the abdomen. On November 1, 1995, an indictment was returned that charged appellant and a co-defendant, Carnell Mathews, with felonious assault, with violence and firearm specifications, and charged appellant with having a weapon while under disability, with a violence and a firearm specification. Appellant pled not guilty, and the case proceeded to trial by jury. At trial, the witnesses called by the state included Sherman McBride, Cleveland Police Officers Mizikar and Hamrick, Detective Taylor, and Anthony Pruitt. McBride testified that on the after- noon of July 14, while he and his friends were standing and talk- ing on the corner of East 108th Street and Aetna Avenue, a white, four-door Chevrolet Caprice Classic driven by McCoy pulled up. He stated that he had known McCoy for eight years by his street name "Keno" and had known McCoy's passenger, Carnell Mathews, for ten years by his street name "Cone." McBride stated that McCoy's sister was Mathews' girlfriend. - 4 - McBride testified that McCoy got out of the car, confronted him and accused him of vandalizing McCoy's sister's car. McBride stated that he then saw Mathews load a nine-millimeter "Glock" and hand it to McCoy, after which McCoy stated that they were going to "drop shells," which he understood to mean "shoot it out." McBride testified that McCoy then shot him in the abdomen and got back in the car and drove away. Anthony Pruitt, who was at the corner of East 108th and Aetna at the time, witnessed the incident. He testified that a big, four-door, white Chevrolet pulled up where Sherman McBride and some others were standing. Pruitt saw the driver, a tall, light-skinned man, get out and have "words" with McBride. Although he heard a gunshot, he did not actually see the shooting. Pruitt saw the man get into the driver's side and watched the car pull away. Pruitt then went over to McBride, held him, and asked if he knew who shot him. McBride told him it was "Keno." The state called Officer Richard Mizikar of the Cleveland Police Department. He testified that he and his partner responded to the scene of the shooting at East 108th Street at approximately 1:15 p.m. There, he interviewed the victim, McBride, while he was in the EMS unit, who told him that "Keno" had shot him. McBride also told Officer Mizikar that "Keno" was driving a late model, white, four-door Chevrolet and carrying a nine-millimeter weapon. Officer Mizikar stated that a nine-millimeter shell casing was - 5 - found at the scene in the street and blood was found on the apron of the driveway. Next, Cleveland Police Officer Chris Hamrick testified that he interviewed McBride while he was in intensive care. McBride told Officer Hamrick that he was shot by Earl McCoy, whose street name is "Keno." Detective Taylor testified that he talked to McBride on August 11, after he had been released from the hospital, at which time he provided a written statement in which he identified Earl McCoy as the person who had shot him. Detective Taylor stated he handled the case investigation and that, when he performed a record check of McCoy, he found that at the time of the offense, McCoy owned an 1986 four-door Chevrolet. The state rested its case, and the defense made a motion for acquittal pursuant to Crim.R. 29, which was denied. The defense then called Patricia Phillips, Verna Carter, Tamika Scott, co-defendant Carnell Mathews, and appellant as witnesses. Patricia Phillips, of the office of Women in Community Service, testified that McCoy was employed there on July 14, 1995. She said he assumed multiple duties and was paid from petty cash. Phillips testified that she checked the records to verify the fact that he had worked from 9:00 to 3:30 without lunch on July 14; however, since that time, the log sheets upon which she relied had been destroyed or tossed out due to the closing of the office. On cross-examination, Phillips revealed that she is McCoy's "Big - 6 - Sister" and has interacted with him and helped him for fifteen years. The defense then called appellant to testify on his own behalf. He testified that he had known Sherman McBride through past deals in which he bought stereo sound system parts from him and that they used to "prowl" together, looking for cars to steal. He said that after he had gotten into trouble for a previous felonious assault, he got away from that type of activity and, therefore, saw less of McBride. McCoy said that he had no knowledge of the shooting until November, 1995, when he received his indictment papers. Although McCoy was unable to independently recall his whereabouts on July 14, 1995, after reviewing a document from Mrs. Phillips of Women in Community Service, he remembered that he worked that day because it had been so busy and that he signed in a little late. He stated that he did not go out to lunch that day and that he had signed out about 3:30. McCoy said that he did not know that his sister's car had been stolen until after the date of the assault. McCoy denied knowing Carnell Mathews and denied shooting Sherman McBride. Defendant McCoy's sister, Verna Carter, testified that her auto had been stolen on July 11, 1995, and was recovered a week later. Although Carter told her mother and sister of the theft, she did not tell her brother at that time. She testified that she does not know Carnell Mathews and verified that her brother's street name is "Keno." - 7 - Tamika Scott testified that she only recently learned that her boyfriend, Carnell Mathews, was accused of being in a car, putting a clip in a gun, and giving it to "Keno," who then shot somebody over a dispute over a car. She stated that she does not know "Keno." Carnell Mathews, known by his street name of "Cone," testi- fied that although he knew the victim, Sherman McBride, from the neighborhood, he did not know his co-defendant, Earl McCoy. Mathews was unable to recall where he was on July 14, 1995, but stated that prior to the shooting incident, he and McBride had been involved in a fight. He stated that McBride had punched him when he was not expecting it but he won the fight and had no problems with McBride since that time. Mathews denied shooting McBride and further denied handing anyone a gun to shoot McBride. The defense rested and renewed its motion for acquittal, which was denied. Thereafter, the jury found appellant guilty on both counts and the specifications but found the co-defendant, Mathews, not guilty on all counts. Appellant was sentenced to a term of eight to fifteen years on one count of felonious assault, plus three years actual incarceration on the gun specification, and a term of five years on the charge of having a weapon while under a disability, to be served concurrently with the sentence on the felonious assault. It is from this judgment that appellant brings this appeal. - 8 - In his first assignment of error, appellant argues that the verdicts of the jury are contrary to the weight of the evidence. Specifically, appellant asserts that the testimony of the victim was so "contradicted, uncertain and conflicting" that there was "no logical pattern to the incredible picture painted by the state's witness." This court has reviewed the entire record of proceedings before the trial court. Upon thorough consideration of the law and the evidence presented at trial and as summarized above, this court finds there was evidence before the court upon which the jury could find all the elements of both offenses and the specification proven beyond a reasonable doubt. State v. Thompkins (1997), 78 Ohio St.3d 380. Accordingly, appellant's first assigned error is not well taken. In his second assignment of error, appellant argues that the conduct of the prosecutor was so improper and highly prejudicial that, in light of the whole record, it rose to the level of re- versible error. Specifically, appellant challenges the prose- cutor's conduct regarding the posed questions which, when answered by the appellant, revealed appellant's juvenile conviction, his former gang association, and the existence of his three illegiti- mate children, thereby denying him a fair trial. A prosecutor's conduct is grounds for reversal or new trial if such conduct deprives the defendant of a fair trial. State v. Maurer (1984), 15 Ohio St.2d 239, 266. When considering such an - 9 - assignment of error, a court must decide first whether the remarks were improper and second, if so, whether they prejudicially affected the substantial rights of the appellant. State v. Smith (1984), 14 Ohio St.3d 13. Four elements are to be considered in determining whether a prosecutor's statements amount to miscon- duct: (1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant. State v. Mann (1993), 93 Ohio App.3d 301, citing State v. Hill (1977), 52 Ohio App.2d 393 and State v. Starr (May 30, 1996), Cuyahoga App. No. 69628, unreported. To determine prejudice, the effect of any misconduct must be considered in light of the whole record. State v. Durr (1991), 58 Ohio St.3d 86. In the first instance complained of by appellant, the prose- cutor asked him on cross-examination why, although he went through 12th grade at JFK High School, he did not graduate. In response, the appellant stated that he had "caught" an aggravated robbery case, which had resulted in his placement at Indian River School. In the second instance complained of, appellant argues that the prosecutor improperly cross-examined him on the issues sur- rounding his prior assault conviction. Next, appellant complains that the prosecutor improperly elicited information about his former gang association. - 10 - Finally, the appellant complains that the prosecutor's cross- examination elicited information from the appellant that he was the father of three illegitimate children. Upon review of the record before us, this court finds that, while the above actions of the prosecutor during cross-examination are questionable when considering the criteria for the determina- tion of prosecutorial misconduct set forth above, we cannot find, when reviewing the whole record and considering the strength of evidence against the appellant based upon the testimony of the victim, that appellant was prejudiced thereby. Accordingly, appellant's second assigned error has no merit. In his third assignment of error, the appellant asserts that the trial court committed error in permitting the prosecution to inquire into his juvenile adjudication and in failing to give a limiting instruction to the jury as to the only purposes for which such evidence might be used. Specifically, appellant contends that Evid.R. 609 was violated during the prosecutor's cross-examination when he admitted that he had a prior juvenile court adjudication for felonious assault and correctly argues that R.C. 2151.358(H) prohibits the use of his juvenile adjudication against him in any court proceeding except for sentencing matters. Evid.R. 609 provides for the use of evidence of conviction of a crime for impeachment purposes and specifically precludes the use of a juvenile adjudication as a basis of impeachment unless provided by enactment of the general assembly. - 11 - The record reflects that appellant, to explain why he did not graduate from the high school that he had attended, volunteered that he had been in another school as a result of this juvenile adjudication. While we agree that, pursuant to Evid.R. 609(D), the prosecutor may not raise an issue of appellant's juvenile conviction, we find that this instance in which appellant himself testified as to his prior conviction was the only time in the entire record that it was mentioned. Therefore, for the reasons set forth in the second assignment of error, we find no prejudice to appellant and, accordingly, find appellant's third assignment of error has no merit. In his fourth assigned error, appellant contends that he was denied effective assistance of counsel when his trial attorney failed to file a motion in limine to preclude the introduction of his juvenile conviction and failed to timely object during the prosecutor's cross-examination as to the facts of the juvenile case. Appellant argues that these failures on the part of his counsel facilitated the introduction of damaging evidence as to his prior criminal conduct and that such introduction of evidence bears no reasonable relationship to a legitimate trial strategy of defense counsel. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. This standard - 12 - requires appellant to satisfy a two-part test. First, appellant must show that counsel's representation fell below an objective standard of reasonableness. Second, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different when considering the totality of the evidence that was before the court. Strickland v. Washington (1984), 466 U.S. 668. This test is applied in the context of Ohio law that states that a properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153. As discussed in Assignment of Error No. III, the state did not introduce the evidence of the appellant's prior juvenile adjudication; the appellant, himself, did, and the totality of the evidence of the juvenile adjudication introduced was in only one sentence of the entire record. From a review of the complete record before us, we cannot find that the performance of defense counsel in his failure to move the court for exclusion of the juvenile record was seriously flawed or that the result of the trial would have been different had counsel so moved the court. Accordingly, this court finds that appellant was not preju- diced or prevented from having a fair trial and appellant's fourth assignment of error is not well taken. Upon consideration whereof, this court finds that substantial justice has been done the party complaining, and the judgment of the Cuyahoga County Court of Common Pleas is affirmed. - 13 - It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. The Court finds there were reasonable grounds for this appeal. It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, P.J. DIANE KARPINSKI, J. CONCURS JUDGE CHARLES D. ABOOD* *SITTING BY ASSIGNMENT: Charles D. Abood, retired judge of the Sixth District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. 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 .