COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70534 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION BERNARD WELLS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 13, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-324,593 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor FRANCINE GOLDBERG, 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 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Bernard Wells appeals his conviction of Felonious Assault, R.C. 2903.11, with a violence specification. Defendant requests this court to reverse his convictions alleging prosecutorial misconduct, prejudicial rulings on the exclusion of evidence, and that the convictions were against the manifest weight of the evidence. Finding no reversible error in the court below, we affirm. The record reflects that the defendant was indicted on a one- count indictment charging felonious assault with a violence specification. The matter went to a jury trial. At trial, the state presented evidence that showed that James Davis, age forty-two, a veteran GCRTA driver, while driving his wife's uncle, Lynzell Hereford, home about 6:00 p.m. on March 26, 1995, stopped his van at 125th and Shaw on the southeast side of Shaw to allow Hereford to use a pay phone. Hereford got out of the van, crossed the street, and went to the phone booth to make his call. While Hereford was on the phone, a black Chevy Malibu with dark tinted windows stopped on the northeast side of Shaw. A woman got out of the car and told Hereford that she wanted to use the phone. A minute or two later, a heavy-set, brown-skinned man got out of the car and told Hereford to "[g]et the f*** off the phone. - 3 - My bitch wants to use the phone." James Davis identified defendant Wells as the man who confronted Hereford. Davis, when he saw and heard this, got out of the van, crossed the street, and asked Wells what the problem was. Wells confronted Davis, asking, "Who the f*** are you?" Davis, in order to avoid a confrontation, grabbed Hereford's arm and said, "Let's go," and the two started walking back across the street. A second man got out of the car and tackled Davis from behind. In total, five assailants from the car knocked Davis down, jumped on him, and kicked him in the face. Davis identified Bernard Wells as the one who punched him in the face three times and kicked him in the face. During the attack, which lasted three to four minutes, Davis asked Wells to stop the punching and kicking. Davis tried to get up three times, but each time, someone grabbed him from behind and tackled him. During the attack, Hereford had two of his teeth knocked out. The assailants ended the assault by jumping into their car; Bernard Wells got into the driver's seat, and the car sped away. Davis was able to see a thirty-day tag with the date scratched off and was able to make out the last three digits, "816," remembering them by association with football players' numbers. After the attackers left, Davis used paper towels from his car because his face was bleeding. He got Hereford back into his car and drove Hereford home -- only a three- or four-minute trip from there. From there, it took Davis twenty-five or thirty minutes to drive to his own home because of his injuries. Davis then went to - 4 - St. Lukes' emergency room for treatment. His left cheek was fractured, and he suffered facial contusions, abrasions, and a ruptured blood vessel in his left eye. At the emergency room, Davis spoke to Officer Dlugolinski of the Cleveland Police Department, Fourth District, who responded to St. Luke's Hospital to take the report from Davis. Officer Dlugolinski observed the injuries, made a primary investigative report of the assault, referred Davis to the Sixth District Detective Bureau, and sup- plied the Sixth District with information from his initial report through the report center. On the day after the assault, Davis learned the complete license plate number from his father-in-law, George Wiggins, who, upon hearing the description of the car as a black Chevy Malibu, believed the car to be the same automobile that he had seen on the street where he lives. Wiggins compared the numbers that Davis remembered to the plate on the car on his street and took down the complete number by looking at the car as it was parked in front of Shawn Wynn's house. Later that day, he contacted Davis with the complete temporary tag number. On April 8, 1995, at the Sixth District, Davis was able to give the description of his assailant to Sergeant James Haber, who was the key investigator assigned to this assault investigation. Davis described his assailant as between 5'11" and 6'2", heavy- set, and between 250-280 pounds. When Officer Haber reviewed the report, he saw that there was a named suspect and a license plate - 5 - number given for the vehicle described as a black Chevrolet Malibu. He ran a listing on the plate and found it had expired on March 4th and was listed to Bernard Wells of East 126th Street. Sergeant Haber showed Davis a photo array of six photos. Davis picked photo three, the picture of Bernard Wells, as the man who beat and kicked him on March 26th. On the same day, the photo array was shown to the other witness, Lynzell Hereford, who also picked photo three, that of Wells. Through investigation, Sgt. Haber also learned that another of the suspects was Shawn Wynn. Sgt. Haber later heard that Hereford stated that he had misidentified Wells as the assailant. Davis made an in-court identification of Bernard J. Wells as his assailant. The state rested, and, at the close of the state's case, the defendant moved for a directed acquittal pursuant to Crim.R. 29, which was denied by the court. The defendant, Bernard J. Wells, took the stand in his own defense testifying that he was charged with this crime on the basis of mistaken identity and the fact that the police and the victim were out to get him. Although Wells was unable to remember where he was on March 26, 1995, he denied knowing anything at all about this incident. He acknowledged that the black Chevy Malibu identified by its license plate was his car and that he let Joseph Beard, who was living with Shawn Wynn, drive it for a few weeks. He testified that he takes responsibility for his own actions. As - 6 - evidence of his responsible behavior, in addition to working two jobs, he sold drugs to support his family. Further, he has always taken responsibility for his behavior by pleading guilty to the charges in the four drug cases brought against him previously. His jobs did not require him to work on weekends, and he, therefore, had drunk heavily on the weekends since he was seventeen. Wells opined that this felonious assault charge was brought against him because all the police of the Sixth District were out to "get him" due to an incident where he refused to buy Chinese rice for a Sixth District policewoman friend of his while she was off duty, and he was accused of calling her a "bitch." Further, he testified that although the victim, James Davis, did not know him previously, Davis was also out to "get him." Wells blamed this arrest on a case of mistaken identity similar to a previous incident of mistaken identity involving the FBI. The jury found the defendant guilty as charged in the indict- ment. Wells was sentenced to a prison term of seven to fifteen years and now timely appeals, presenting three assigned errors for our review. ASSIGNMENT OF ERROR NO. I. - 7 - DEFENDANT-APPELLANT'S CONVICTIONS WERE CON- TRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. In his first assigned error, appellant contends that his conviction was against the manifest weight of the evidence as the evidence was consistently contradicted, extremely uncertain and conflicting and, further, there was no logical pattern to the incredible picture painted by the state's witnesses. Specifi- cally, appellant contends that the victim's story was discredited in so many details that it should have been obvious that he lied. We do not agree. 1 In State v. Martin , the court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The Martin court, at p. 175, stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. *** See, Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; 1 State v. Martin (1983), 20 Ohio App.3d 172. - 8 - (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. Moreover, the weight of the evidence and the credibility of 2 the witnesses are primarily for the trier of fact. The appellant was convicted of felonious assault, causing serious physical harm to the victim, James Davis. The record reflects that the victim positively identified the appellant as the assailant who confronted him, punched him in the face, and kicked him for a period of three to four minutes during the attack. As a result of the attack, the victim suffered a fractured left cheek bone, facial contusions, and a ruptured blood vessel in his eye. The victim gave a description of his assailant to the police that corresponded to the physical description of the appellant. The victim positively identified the appellant, without suggestion, from a photo array at the police station and again in the courtroom. He was able to identify the vehicle used in the incident that was owned by the appellant, and he was able to present the police with the license number, which was registered to the appellant. The jury obviously rejected the appellant's theory 2 State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. - 9 - that he had nothing to do with the incident and that this charge was brought against him based upon both a mistaken identity and a "grudge" held against him by the police and the victim. Upon careful review of the record before us, we do not see that the jury so clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Accordingly, we find the appellant's first assignment of error is not well taken. ASSIGNMENT OF ERROR NO. II PROSECUTORIAL MISCONDUCT DENIED THE APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Appellant, in his second assignment of error, complains that the prosecutor's misconduct denied him a fair trial. Specifi- cally, appellant complains that a line of questioning taken by the prosecutor was so highly inflammatory and prejudicial to the appellant that where the court failed to admonish the jury to disregard that line of questioning, he was denied a fair and impartial trial. We do not agree. A prosecutor's conduct is a ground of reversal or a new trial 3 if such conduct deprives the defendant of a fair trial. The effect of the prosecutor's conduct must be considered "in light of 4 the whole case" to determine whether the conduct was prejudicial. 3 State v. Maurer (1984), 15 Ohio St.2d 239, 266. 4 Id. - 10 - It must appear beyond a reasonable doubt that the prosecutor's misconduct did not contribute to the conviction -- that the defen- dant would have been found guilty even if the prosecutor acted 5 properly. The conduct of a prosecuting attorney during trial cannot be made a ground of error unless the conduct deprives the 6 defendant of a fair trial. To determine whether remarks made by a prosecutor constitute prejudicial error, a two-step process must be undertaken. The court must decide first whether the remarks were improper and second, if so, whether they prejudicially affected the 7 substantial rights of the appellant. To determine prejudice, the effect of any misconduct must be considered in light of the whole 8 record. Here, the line of questioning complained of by the appellant consists of two questions as follows: PROSECUTOR: Is there any reason that Mr. Davis would have a grudge against you? APPELLANT: No. PROSECUTOR: Any reason he would come up here and take an oath and lie on the witness stand? MR. WADE: Objection, your Honor. 5 Chapman v. California (1966), 386 U.S. 18, 23; State v. Smith (1984), 14 Ohio St.3d 13, 15. 6 State v. Keenan (1993), 66 Ohio St. 3d 402, 405, citing State v. Apanovitch (1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400. 7 State v. Smith (1984), 14 Ohio St.3d 13. 8 State v. Durr (1991), 58 Ohio St.3d 86. - 11 - THE COURT: Overruled. If he knows. APPELLANT: No, I don't know why. I don't know why. We must first determine whether such a line of questioning was improper and then, if so, whether these questions prejudicially affected the substantial rights of this appellant to a fair trial. The victim, Davis, testified that the appellant was the per- son who assaulted him on March 26, 1995. The appellant testified that he knew nothing at all about the incident and that he had no involvement in the case. The issues of whether the victim was mistaken or lying and the credibility of the appellant were therefore before the court. Questions upon cross-examination are governed by Evid.R. 611(B), which states that cross-examination "extends to all rele- vant matters and to matters affecting credibility." It is well established that "the scope of cross-examination and the admissi- bility of evidence during cross-examination are matters which rest 9 in the sound discretion of the trial judge." In State v. 10 Garfield, the court determined that a prosecutor may force a witness to testify where there is conflicting testimony whether the witness believes the other witness was mistaken or lying. The questions complained of by the appellant were asked by the 9 O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163. 10 State v. Garfield (1986), 34 Ohio App.3d 300. - 12 - prosecutor on cross-examination to determine the credibility of the appellant's version of the events. Where the cross-examination tests the accuracy, truthfulness and credibility of testimony, the "limits rest within the sound discretion of the trial court and this should not be interfered with unless the court abuses its discretion to the prejudice of the party complaining. State v. 11 Huffman (1912) 86 Ohio St. 229, 99 N.E. 295." Therefore, we find that these questions were within the per- missible bounds of cross-examination and were not improper. Accordingly, no abuse of discretion by the trial court can be found in permitting proper cross-examination, and no prejudice to the appellant can be shown where no prosecutorial misconduct was found. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT COMMITTED PREJUDICIAL, RE- VERSIBLE ERROR WHEN IT REFUSED TO PERMIT THE INTRODUCTION OF THE TESTIMONY OF AN F.B.I. AGENT REGARDING THE MISIDENTIFICATION OF DEFENDANT-APPELLANT FOR A FELONIOUS ASSAULT 11 Garfield, at 303. See, also, Renfro v. Black (1990), 52 Ohio St.3d 27, 33; and City of Cleveland v. Abbott (Dec. 19, 1991), Cuyahoga App. Nos. 58677, 58691, 58692. unreported. - 13 - APPROXIMATELY ONE MONTH PREVIOUS WHERE THE SUSPECT POSSESSED DEFENDANT-APPELLANT'S PHOTO IDENTIFICATION AND BORE A STRONG RESEMBLANCE TO DEFENDANT-APPELLANT, THEREBY DENYING THE DEFENDANT-APPELLANT DUE PROCESS OF LAW AS GUARANTEE IN THE FIFTH AND FOURTEENTH AMEND- MENT OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO CON- STITUTION. Appellant contends in his third assignment of error that it was reversible error for the trial court to preclude the introduc- tion of evidence that he intended to offer in his defense of the charge against him. Specifically, appellant complains that the court failed to permit him to present evidence that one month prior to this incident, in an unrelated felonious assault investigation, the FBI had interrogated the appellant about a male using his identification and photo. Appellant contends that this testimony supported his theory of the case that the charges against him in this matter were also based upon a mistaken identity. The admission or exclusion of evidence is governed by Evid.R. 402, which states: All relevant evidence is 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. Evidence which is not relevant is not admissible. The trial court ruled that the evidence that the appellant intended to present was not relevant to the case before it. - 14 - Relevant evidence is defined in Evid.R. 401 as "*** evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In a prosecution for felonious assault, the state must prove these facts of consequence: that the defendant did knowingly cause serious physical harm to another -- here, the victim, Davis. Thus, the court found evidence of a prior unrelated incident of mistaken identification has no tendency to make the existence of a material fact in this criminal prosecution more probable or less probable than it would be without that evidence. The trial court determined that the testimony was "irrelevant" and "would be highly prejudicial" and found, therefore, that the testimony of the FBI agent would not be admissible. The admission or exclusion of evidence rests within the sound 12 discretion of the trial court. The issue of whether testimony is 13 relevant or irrelevant is best decided by the trial judge. In balancing the probative value against the danger of unfair prejudice, the trial court is vested with broad discretion, and an appellate court should not interfere absent a clear abuse of 14 discretion. "The term 'abuse of discretion' connotes more than 12 State v. Sage (1987), 31 Ohio State 3d 173. 13 Renfro v. Black (1990) 52 Ohio St. 3d 27. 14 State v. Harcourt (1988) 46 Ohio App.3d 52. - 15 - an error of law or judgment; it implies that the court's attitude 15 is unreasonable, arbitrary or unconscionable." Upon review of the record, we do not find that the decision of the trial court evidences an attitude which was unreasonable, arbitrary, or unconscionable, and, therefore, we find no abuse of discretion in the trial court's determination that the testimony of the FBI agent relating to an unrelated incident regarding this appellant was irrelevant to the matter sub judice. In addition, appellant also argues that his identification, which was established by the selection of his picture from the photo array by the victim, was tainted by suggestive procedures; however, there is no evidence in the record of suggestive proce- dures during this identification process. We, therefore, reject the appellant's argument that the procedure used in this case increased the likelihood of his misidentification. Accordingly, the appellant's third assignment of error is without merit, and the decision of the trial court is affirmed. 15 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 16 - 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 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .