COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70785 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MASOOD MOINUDDIN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 10, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-330146 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue, N.E. GEORGE RUKOVENA, Assistant Cleveland, Ohio 44103 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Masood Moinuddin appeals from his convictions following a jury trial on two counts of aggravated assault (R.C. 2903.12) with specifications for striking two victims with a baseball bat. Defendant contends the trial court erred in its rulings on the admission of evidence which prejudiced the defendant. We find no error and affirm. On September 19, 1995, Charles Bodey and his girlfriend, Valerie Kostenko, went to defendant's ABC Insurance Agency to purchase an insurance bond. They waited about 45 minutes in the waiting room for defendant to finish with other customers. Sharrise Dickerson was another customer waiting to see defendant. As they waited, they could see into defendant's cubicle/office and overheard his offensive treatment of customers he was waiting on. Ms. Dickerson commented to Ms. Kostenko that it sounded as if defendant was having a bad day. When their turn came, Bodey and Kostenko entered the defendant's office and sat down. Defendant repeatedly asked for the specific date of the speeding ticket and accident that resulted in the loss of Bodey's driver's license. Bodey could not recall the exact date. The defendant started screaming at Bodey about the date. Ms. Dickerson, who was still out in the waiting room, testified that she heard defendant become angry with Bodey about the date. - 3 - Bodey matched defendant's tone and defendant started using profanity and told Bodey to get out. As Bodey and Ms. Kostenko stood to leave, defendant quickly exited the side door of his office into a hallway. Bodey noticed defendant had a baseball bat in his hands. Bodey pushed Ms. Kostenko back into her chair and he jumped up onto a table at the side of the office to look over the partition to see if defendant was going to be waiting for them with the bat. Defendant continued to scream profanities at them and raised the bat in a threatening manner. The victims told defendant they were leaving and tried to back out of the waiting room into the hall that lead out of the building. Ms. Dickerson came over and got in front of defendant and begged him not to hit Bodey. Defendant continued to gesture with the bat and Ms. Dickerson moved out of the way. Ms. Kostenko tried to get in between them and defendant hit her in the head with the bat. He then swung the bat at Bodey and hit him on the left elbow when he raised his arm to block the blow. Bodey and Ms. Kostenko started backing out of the waiting room into a small corridor. Defendant followed, screaming at them. Bodey thought he was going to be hit again, so he wrestled defendant to the floor and took the bat away. Ms. Kostenko took the bat, opened the door and threw the bat outside. She then ran back in to call the police, dialing 911. At this point, two men came in and broke up the tussling between the defendant and Bodey. - 4 - Bodey let go of defendant and went outside. He realized he left his papers and money on the floor, opened the door and darted in, picked them up and went back outside to wait for the police with Ms. Kostenko. The defendant came out the door, armed with the bat again, and started screaming profanities at them. Bodey told him the police had been called and he was going to jail. Defendant then raised the bat high over his head and swung it down, hitting Bodey in the head, opening a cut which started to bleed. The police arrived and Bodey went back into the insurance agency with the police and pointed out defendant as his assailant. An ambulance arrived and took Bodey to Mt. Sinai Hospital while Ms. Kostenko followed in her car. Both Bodey and Ms. Kostenko were treated in the emergency room and released. The defendant admitted to the police hitting Bodey twice, but claimed it was in self-defense and that it took place inside of his place of business after Bodey started the confrontation. He never saw any weapon on Bodey. Defendant denied hitting Ms. Kostenko with the bat. Defendant was indicted on two counts of felonious assault (R.C. 2903.11) and one count of attempted murder (R.C. 2923.02/2903.02). On March 12, 1996, a jury trial commenced on the charges. At the end of the State's case, the court granted the defendant's Crim.R. 29 motion as to the attempted murder count. On March 18, - 5 - 1996, the jury returned a verdict of guilty of aggravated assault of Bodey as a lesser offense of the felonious assault count, with a violence specification. The jury found defendant not guilty on the felonious assault count respecting Ms. Kostenko. On April 26, 1996, defendant was sentenced to a term of two to five years. Full restitution was ordered. The sentence was suspended and the defendant was placed on three years probation. Defendant's three assignments of error will be addressed in the order asserted. I. THE TRIAL COURT ERRED BY NOT ALLOWING INTO EVIDENCE STATEMENTS MADE PURSUANT TO OHIO RULES OF EVIDENCE 612 AND 803(5). Under this assignment, defendant contends the court erred in not admitting into evidence what is identified in the transcript as Defendant's Exhibit A (Tr. 131, 275-278), which was first used by the defense on the cross-examination of Bodey and later by the State on redirect examination of Ms. Kostenko. Exhibit A is a statement given by Bodey to the police on September 21, 1995 when Kostenko was also present. She signed the statement as a witness confirming its accuracy rather than giving a statement of her own. The defense examined Kostenko on recross bringing out that she had reviewed the statement prior to testifying and that there were certain inaccuracies in it. (Tr. 278-79). The defense offered the statement contending it was used throughout the trial and that "[the jury] should be able to see that Valerie Kostenko is signed as a witness, not as the person giving the statement" and that the - 6 - State was trying "to bootstrap her statement into his" to defendant's prejudice. Admission was denied. (Tr. 482-83). Defendant contends that the reading and use of this statement by the State on the witness stand was to refresh her recollection and subjected the statement to admission under Evid.R. 612. Error is claimed in the refusal to admit the exhibit. We disagree. Evid.R. 612 states in pertinent part, as follows: *** if a witness uses a writing to refresh his memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. He is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. *** Defendant asserts the witness used the statement to refresh her memory while on the witness stand. This contention is not supported by the record. Ms. Kostenko testified that she used the statement before she testified to refresh her memory. The following colloquy was had between the witness and defense counsel: Q. Just so I understand correctly. With regard to Defendant's exhibit A, the police asked you to read another witnesses' statement prior to litigation, before you came to this courtroom, is that what you are telling us? A. Yes. Q. They asked you to read his statement and make sure it was right. A. To make sure that -- yes. To make sure that the things that I was included in were correct. Yes. - 7 - Q. So you knew what he was going to say before he came here today, is that right? A. Not exactly. Q. You had read what he told the police, right? A. I read it, yes. While Evid.R. 612 requires the production of writings actually used to refresh memory at trial, the rule gives the trial court discretion when the writing is used to refresh recollection before testifying. State v. Wayt (1992), 83 Ohio App.3d 848, 858; State v. Byrd (1987), 35 Ohio App.3d 100, 101; State v. Page (Aug. 18, 1988), Cuyahoga App. No. 54252, unreported. Further, Ms. Kostenko testified freely and fully concerning the events surrounding the assault. In order to refresh the recollection of a witness there must first be a need to refresh. Dayton v. Combs (1993), 94 Ohio App.3d 291, 297; Byrd, supra. There must be a showing that the witness lacks a present recollection of the facts or events described in the writing. Combs, supra. The memory of the witness must be exhausted or nearly exhausted. State v. Price (1979), 60 Ohio St.2d 136, 139; State v. Aiken (June 10, 1993), Cuyahoga App. No. 64627, unreported. Although defense counsel was entitled to utilize the document to refresh Ms. Kostenko's recollection, no proper foundation was laid to establish that her memory was exhausted or nearly - 8 - exhausted. As we view the transcript, defendant's intent appeared to be more to impeach the witness than to refresh her memory. It is within the trial court's discretion to admit or exclude statements under this rule. Given the limited use that was made of the statement with Ms. Kostenko and the defense's ability to cross- examine with it and on it, we find no abuse of discretion. The defendant also attempts to rely upon Evid.R. 803(5) (past recollection recorded), but we find it has no application to the instant case. Ms. Kostenko was able to testify fully about the events that took place on September 19, 1995, when she was present and defendant inflicted injuries upon her and Bodey. Therefore, she did not exhibit the requisite insufficient recollection called for by the language of Evid.R. 803(5). In any event, defendant fails to explain how defendant's case was harmed in the slightest by exclusion of the statement itself. The defense used the statement to cross-examine Ms. Kostenko and she readily admitted she signed the statement as a witness, not a principal. The jury found in defendant's favor on the charge involving Ms. Kostenko. Any error in the failure to admit this exhibit was harmless. Defendant's Assignment of Error I is overruled. II. THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE HEARSAY STATEMENTS THAT ARE NOT ALLOWABLE UNDER THE RULES OF EVIDENCE. Under this assignment, defendant objected to the testimony of Ms. Dickerson in which she overheard defendant mistreating the - 9 - prior customers while she was in the waiting room with the victims. She opined that defendant was "having a bad day." (Tr. 289-92). These fragments of conversation were not offered for the truth of what was being said, but were offered to prove that they were said in a particular manner, i.e., to establish defendant's belittling or sarcastic manner. State v. Carter (1995), 72 Ohio St.3d 545, 549; State v. Maurer (1984), 15 Ohio St.3d 239, 262-64; State v. Messer (1995), 107 Ohio App.3d 51, 57; State v. Waddy (1992), 63 Ohio St.3d 424. In short, these observations were not hearsay because not offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). The "bad day" observation was also admissible under the present sense impression exception to the hearsay rule embodied in Evid.R. 803(1): The following are not excluded by the hearsay rule, even though the declarant is available: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness. A present sense impression bears a high degree of trustworthiness because the declarant described the event and uttered her remarks in close temporal proximity to the event. State v. Wages (1993), 87 Ohio App.3d 780, 787. The key to a statement's trustworthiness is its spontaneity. Cox v. Oliver Machinery Co. (1987), 41 Ohio App.3d 28, 36. The statement at - 10 - issue were made while the witness was perceiving the defendant's behavior prior to the assault. The trial court properly admitted these statements pursuant to Evid.R. 803(1). Assignment of Error II is without merit and is overruled. III. THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE STATEMENTS MADE BY THE APPELLANT THAT WERE NOT PROVIDED TO THE DEFENSE COUNSEL IN A TIMELY MANNER AS REQUIRED BY CRIMINAL RULE 16. The State provided a written response to defendant's discovery request under Crim.R. 16 which gave him written notice of the fact that the defendant made an oral statement to police. (Defendant's Ex. A). Defense counsel acknowledged that he had been given oral summaries of defendant's various statements as ordered by the court. Defense counsel had no objection and agreed to that procedure (Tr. 206) which gave written summaries from the various police reports that were forwarded to defense counsel. There was no objection; discovery was fully given. Furthermore, defendant has not demonstrated any prejudice has resulted because of alleged unfulfilled discovery demands. See State v. Fontenette (Sept. 19, 1991), Cuyahoga App. No. 59014, unreported at page 8. In State v. Parson (1987), 6 Ohio St.3d 442, the syllabus states: Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim.R. 16, (2) that - 11 - foreknowledge of the statement would have benefitted the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R 16(E)(3) by permitting such evidence to be admitted. See, also, State v. Scudder (1994), 71 Ohio St.3d 263, 269; State v. Soke (1995), 105 Ohio App.3d 226, 245. The trial court is vested with broad discretion in handling this discovery issue. In Soke, supra at 245, this Court held: The trial court is vested with a certain amount of discretion in determining the sanction to be imposed. The court is not bound to exclude such material at trial. Id. at 445, 6 OBR at 487-488, 453 N.E.2d at 691-692; State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97, 108; see, also, Crim.R. 16(E)(3). A trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 511 N.E.2d 1138, paragraph two of the syllabus. Our review of the court's order is limited to a determination whether it abused its discretion. State v. Apanovitch (1987), 33 Ohio St.3d 19, 26, 514 N.E.2d 394, 401-402. The trial court did not abuse its discretion in admitting the evidence. Defendant's Assignment of Error III is overruled. Judgment affirmed. - 12 - 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 Court of Common Plea 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., and BLACKMON, J., CONCUR. JAMES M. PORTER 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 .