COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70739 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JAMAL LONG : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case Number CR-327892. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Edward O. Patton Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Patricia J. Smith, Esq. 4403 St. Clair Avenue, N.E. Cleveland, Ohio 44103 SWEENEY, JAMES D., C.J.: Defendant-appellant Jamal Long, a.k.a. Deon Long, appeals from his jury trial conviction of the following offenses: (1) Count One - Aggravated Robbery [R.C. 2911.01] in the theft of a juvenile's bicycle; and (2) Count Two - Possession of Criminal Tools [R.C. 1 2923.24], to-wit, a 1995 Nissan Altima automobile. For the reasons adduced below, we affirm. A review of the record on appeal indicates that this case involved the theft of a bicycle owned by Master Juan Saunders. The prosecution's version of the offenses herein differs slightly from the defense version. Master Saunders testified on behalf of the prosecution that on July 14, 1995, at approximately 9:30 p.m., while riding his bicycle on West 130th Street toward his home, a burgundy colored Nissan Altima pulled up to the curb near him and the occupants of this vehicle looked at the bicycle. At the intersection of West 130th Street and Gilmore Avenue, the automobile pulled over and the front seat passenger got out. At this point, Master Saunders observed the defendant driving the automobile and identified the passenger as Timothy McDuffy. The passenger then grabbed Master Saunders by the shoulder, displayed a pistol, and ordered Master Saunders to get off the bicycle. The rider then testified that Mr. McDuffy hit him in the face with the 1 A firearm specification was deleted from Count One by the prosecutor prior to the time the jury received its instructions from the court. - 3 - pistol and pointed the pistol at his head. When the defendant got out of the car and opened the trunk, Master Saunders surrendered the bicycle, which was placed into the trunk of the automobile by the defendant and Mr. McDuffy. Master Saunders observed the partial license plate number of the automobile as it drove away, at which time he went to a local bar and telephoned his mother. Mrs. Saunders and her son then went to the police station and made a report, giving the description of the two thieves and the automobile. Several days later, Master Saunders observed the automobile and the same two individuals (defendant was driving) in the same area as where the theft occurred, so he notified the police. A couple of days later, the police notified Master Saunders that they had arrested the two individuals. Master Saunders went to the police station, signed a written statement, and identified both men from a photograph array. Police officers corroborated aspects of Master Saunders' testimony relative to police involvement in the investigation and also detailed the subsequent arrest, which found the two men in the car identified by the victim with the defendant driving it. The police noted that Master Saunders did have an injury to the right side of his face when he presented himself to them after the offense. Detective John Riedenthaler also stated that, when he questioned the defendant, the defendant admitted that he was in the area at the time of the theft, but claimed that he observed Rashon - 4 - Reed fighting with Master Saunders over the bicycle. Mr. Reed was not indicted in the offenses herein. The defense attempted to elicit a different version of events. The defense was precluded from producing the testimony of attorney Dennis Butler, counsel for co-defendant Mr. McDuffy. The defense proffered the very general substance of Mr. Butler's testimony, to- wit, that Mr. Reed allegedly admitted to Mr. Butler that it was he, Mr. Reed, who was the perpetrator of the bicycle robbery. (R. 305- 307.) The full text of the alleged statement was not proffered and is not part of the record. The defense attempted to call Mr. Reed to testify at the trial, but Mr. Reed invoked his privilege against self- incrimination. (R. 308-311.) The defense then produced the testimony of Ralph Nichols, the defendant's step-brother, who testified that he was a front seat passenger in the automobile at the time of the offense and that he exited the vehicle at the intersection of West 130th Street and Gilmore Avenue, at which time he allegedly observed Mr. Reed, who had been the back seat passenger in the automobile, struggling with Master Saunders over the bicycle. Mr. Nichols stated that he did not see anyone with a gun, that Mr. Reed mounted the bicycle and rode away with it, and that the defendant assisted no one in the theft of the bicycle. The prosecution demonstrated that at the time of his testimony, Mr. Nichols was serving time for a drug - 5 - trafficking conviction, and he also had another drug trafficking conviction on his record. This appeal, which is presented on the briefs of the parties, offers two assignments of error for review. I THE TRIAL COURT ERRED WHEN IT RULED THAT A STATEMENT MADE AGAINST PENAL INTEREST WAS INADMISSIBLE HEARSAY. Appellant argues that Mr. Reed's alleged statement to attorney Butler was admissible pursuant to Evid.R. 804(B)(3), which provides in pertinent part the following: (B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * * (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (Underscoring added.) Applying Evid.R. 804(B)(3) to the case sub judice, three factors must be established to hold the subject statement of Mr. Reed admissible: (1) that Mr. Reed was unavailable as a witness; (2) that the statement was against Mr. Reed's interest and tended - 6 - to subject Mr. Reed to criminal liability; and (3) that corroborating circumstances clearly indicate the trustworthiness of the statement. See, e.g., State v. Gilliam (1994), 70 Ohio St.3d 17, 20, 635 N.E.2d 1242, 1245-1246. Mr. Reed fits the definition of "unavailable as a witness" for purposes of Evid.R. 804(B)(3) when he invoked his privilege against self-incrimination pursuant to Evid.R. 804(A)(1). State v. Sumlin (1994), 69 Ohio St.3d 105, 108, 630 N.E.2d 681, 683-684. Therefore, the first element of Evid.R. 804(B)(3) was satisfied. The State concedes that the second element of Evid.R. 804(B)(3) was satisfied. See Appellee's brief at 5. With regard to whether the third element of the rule was satisfied, we note the following excerpt from State v. Branham (1995), 104 Ohio App.3d 355, 359, discretionary appeal disallowed in (1995), 74 Ohio St.3d 1444, 656 N.E.2d 344: "[A] bare showing of some extent of corroboration is not enough. Instead, the rule contemplates a demonstration of corroborating circumstances *** which, on balance, persuade the trial judge that the statement bears the clear indicia of reliability and trustworthiness, leaving the ultimate determination of credibility to the jury." State v. Saunders (1984), 23 Ohio App.3d 69, 73, 23 OBR 132, 137, 491 N.E.2d 313, 319. See, also, Lowery v. Maryland (D.Md.1975), 401 F.Supp. 604, 607-608, affirmed without opinion, (C.A.4, 1976), 532 F.2d 750. "The determination of whether corroborating circumstances are sufficient to admit statements against penal interest as a hearsay exception generally rests within the sound discretion of the trial court." Landrum, supra, 53 Ohio St.3d at 114, 559 N.E.2d at 720. - 7 - * * * Statements tend to be trustworthy when they are spontaneous, corroborated by other evidence, and against penal interest, and the declarant is available for cross-examination. Chambers v. Mississippi (1973), 410 U.S. 284, 300-301, 93 S.Ct. 1038, 1048-1049, 35 L.Ed.2d 297, 311-312. See State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710. In the present case, we cannot say that the trial court abused its discretion in holding the statement inadmissible. This is so for the following reasons which undercut the trustworthiness of the statement: (1) the alleged statement of Mr. Reed was not spontaneous, being allegedly made approximately eight months after the offenses were committed to an attorney (Dennis Butler) representing the co-defendant in the case; (2) the alleged statement, whose content was only divulged in very brief substance, was only corroborated as to that one point (that Mr. Reed had stolen the bicycle) by the testimony of Mr. Nichols, who was not identified as being at the scene of the offense by the victim and who was the step-brother of the defendant-appellant; (3) the alleged declarant (Mr. Reed) is unavailable for cross-examination. Accordingly, three of the Chambers factors are lacking. The first assignment of error is overruled. II THE VERDICT FINDING THE APPELLANT GUILTY OF ROBBERY AND POSSESSION OF CRIMINAL TOOLS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 8 - The standard of appellate review for the arguments presented in this assignment were recently reiterated in State v. Merritt (March 20, 1997), Cuyahoga App. No. 70729, unreported, at 7-8, citing State v. Wigley (February 6, 1997), Cuyahoga App. No. 69920, unreported, at 7-8: The standard of review for an appeal on the grounds of manifest weight of the evidence is as follows: In determining whether the verdict is against the manifest weight of the evidence, 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. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. This court also notes that the credibility of the witnesses is primarily the trier of fact's determination. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 231. Having reviewed the testimony and evidence presented, we conclude that the verdicts were supported by the manifest weight of the evidence. See R.C. 2911.01 and 2923.24. The second assignment of error is overruled. - 9 - Judgment affirmed. - 10 - 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. ANN DYKE, J., and KENNETH A. ROCCO, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE 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 .