COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71137 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JASON JOHNSON : : Defendant-appellant : : JULY 24, 1997 : DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-331777 : JUDGMENT : Affirmed DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. PATRICIA J. SMITH, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue THOMAS A. REIN, ESQ. AND Cleveland, OH 44103 STEVEN A. DEVER, ESQ. Assistant County Prosecutors The Justice Center, 8th Fl. 1200 Ontario Street Cleveland, OH 44113 PATTON, J. This appeal arises from a jury verdict finding defendant- appellant Jason Johnson guilty of murder and aggravated robbery in -2- addition to a firearm specification. Subsequently, defendant was sentenced to a period of fifteen years to life on the murder charge and ten to twenty-five years for the aggravated robbery charge plus three years for the firearm specification to be served consecutive and prior to the other charges. On December 13, 1995, at approximately 8:00 p.m. the victim and her four year old daughter traveled to a bank to withdraw money. While withdrawing money from a drive-up ATM machine, the victim was shot and killed. At trial, a bank employee submitted as evidence videotape frames recorded by bank cameras on the night of the incident. The videotape was played and revealed two men at the bank withdrawing money approximately one-half hour before the incident. A half-hour later, at 8:00 p.m., the videotape showed the shooter's car returning to the bank and pulling in behind the victim's car. The next few frames showed the shooter attempting a transaction, although bank records later revealed no transaction occurred at this time. Subsequently, the videotape reveals no one in the shooter's car. The videotape then shows the shooter on the driver's side of the victim's car with his upper torso in the victim's car and a person outside and behind the victim's car. A police officer with the homicide unit testified regarding his post-arrest interview of defendant. At this interview, defendant made a written statement divulging certain facts about the night in question. Defendant stated he and the shooter went to the ATM machine at the bank to withdraw some money. The shooter -3- was driving and defendant was the passenger. After withdrawing $10.00, they bought some beer and drank it while driving around. They then returned to the bank where the shooter exited the car and walked up to the victim's car and started talking to her. Defendant next heard a noise after which the shooter came back to the car and while leaving the bank they backed into the car behind and also a telephone pole. A young boy testified he was playing in the alley adjacent to the bank when he saw a car strike a telephone pole. He then saw the passenger of the car exit the car and check for damage. At trial, this witness identified the passenger as defendant; however, at an earlier lineup this witness did not positively identify defendant. Likewise, a second witness observed the shooter and passenger leaving the bank on the night of the shooting. This other witness testified that as he and his wife were entering the bank's lot the shooter's car exited through the entrance narrowly avoiding them. He then heard a little girl screaming and pulled in behind the victim's car. At a lineup this witness positively identified the passenger in the shooter's car as defendant. The arresting officer also testified. He stated that he went to defendant's girlfriend's apartment and informed defendant that he was under arrest. Defendant denied any involvement with the crime and told the officer his gun was under the mattress in the living room. This gun was later matched to the bullet that killed the victim. -4- On June 27, 1996, the jury returned with a guilty verdict. Defendant now appeals this verdict submitting six assignments of error. In his first assignment of error defendant states as follows: THE TRIAL COURT ERRED WHEN IT ALLOWED IMPROPER HEARSAY STATEMENTS TO BE ADMITTED INTO EVIDENCE THAT ARE NOT ALLOWABLE UNDER THE RULES OF EVIDENCE. Defendant claims he was prejudiced by the admission of his written statement which was offered to show that defendant lied about not getting out of the shooter's car. First, defendant argues the statement was hearsay and does not fall under any of the hearsay exceptions. Second, he argues the testimony provided by the police officer, based on the written statement, where the officer states his impression was that defendant did not exit the car is not relevant and is a question of fact for the jury. The state counters by arguing defendant's statement was submitted properly as a statement against interest pursuant to Evid.R. 804(B)(3) as well as an admission of a party opponent pursuant to Evid.R. 801(D)(2). Regarding the relevancy of the statement, the state maintains the statement is evidence that defendant was present during the homicide and that the murder weapon belonged to him. In the present case, defendant was arrested and taken into custody. The next day he was interviewed by a police officer. Before the statement was taken defendant was advised of his constitutional rights. Defendant agreed to waive these rights by signing a waiver. Defendant then stated and signed a form that he -5- wanted to make a written statement. The police officer took the statement and in the statement defendant described what occurred on the night in question. After the giving the statement, defendant read the statement, he was given an opportunity to make changes but refused to do so. At trial, this statement was read into evidence by the police officer who took the statement. Evid.R. 801(D)(2)(a) governs admissions made by a defendant in a criminal case. State v. Abercrombie (Aug. 26, 1993), Cuyahoga App. No. 63695, unreported. Evid.R. 801(D)(2)(a) states as follows: (D) Statements which are not hearsay. A statement is not hearsay if: (2) Admissions by party-opponent. The statement is offered against a party and is (a) his own statement, in either his individual or a representative capacity * * *. Therefore, to be admissible a written statement by a defendant must be offered against him and must have been given in an individual or representative capacity. In the present case, the state offered defendant's written statement against him and defendant individually and voluntarily gave the written statement. Therefore, defendant's written statement was admissible. See, also, State v. Drake (Oct. 28, 1993), Cuyahoga App. Nos. 63964 and 63965, unreported (written statement of defendant admissible pursuant to Evid.R. 801(D)(2)(a)). Defendant also argues the statement was not relevant and therefore prejudicial pursuant to Evid.R. 403. However, in the substance of his argument defendant argues something different. He -6- claims the statements made at trial by the testifying officer regarding whether defendant exited the car are what make the statement prejudicial. In order to address this issue in a logical manner, we must reiterate our conclusion above that the written statement defendant gave after his arrest was properly admitted. The next issue is whether the statements made by the police officer stating he had the impression that defendant did not exit the car were prejudicial. This contention arises from the police officer's testimony: Q. Okay. Then going back to my question, at the time that the defendant made this statement to you, did he indicate to you in any way in the description of the events that night that he got out of the car? MR. MCGRATH: Objection MR. MORONEY: Objection. THE COURT: Overruled. A. No, he did not. Q. The way that you understood his explanation what he described as the events of that night, did you have the impression that he remained inside of the car? MR. MORONEY: Objection. THE COURT: Overruled. A. That was the impression I had when I took the statement. Q. And can you tell the ladies and gentlemen of the jury why you had that impression? MR. MCGANN: Objection. MR. MORONEY: Objection. THE COURT: Overruled. A. He would have explained to me when I asked him what had happened that night, he would explain to me he got out of the car, what he did. He never said that. So I was under the impression that he -7- never left the car, that he watched all this from the passenger seat of the car. Defendant argues this testimony is inadmissible because (1) it was based on inadmissible hearsay and (2) because it was not relevant and was prejudicial. Defendant claims further that the police officer's impression that defendant did not exit the car is a factual issue for the jury to determine and as a lay witness his testimony is only admissible if it is based upon specific measurements or peculiarities. This argument is misplaced. First, the police officer's testimony was admissible. Evid.R. 701 provides that a lay person may provide opinion testimony when his opinion is rationally based on his perceptions, and where it is helpful to a clear understanding of his testimony or the determination of a fact in issue. State v. Stout (1987), 42 Ohio App.3d 38, 42. This rule means that the witness must have firsthand knowledge of the subject of his testimony and the opinion must be one that a rational person would form on the basis of the observed facts and the testimony must aid the trier of fact in understanding the testimony of the witness or in determining a fact in issue. Lee v. Baldwin (1987), 35 Ohio App.3d 47, 49. In addition, opinion testimony is not objectionable merely because it concerns an ultimate issue to be decided by the trier of fact. Evid.R. 704. The police officer's testimony that defendant did not exit the car was based on his conversation with defendant. The officer also stated that since defendant was relating what happened on the -8- night in question he would have said he exited the car if he had in fact done so. In light of the other evidence presented at trial, specifically the videotape showing the shooter's car empty right before the murder, a person forcing his way into the victim's car, and a second person standing behind the victim's car, the jury was capable of concluding whether defendant remained in the car or not. Based on this analysis the trial court's decision to admit the evidence was not an abuse of discretion. Urbana, ex rel. Newlin v. Downing (1989), 43 Ohio St.3d 109, certiorari denied, Downing v. Urbana (1989), 493 U.S. 934. Second, defendant claims the police officer's testimony was not relevant and prejudicial and thus inadmissible. All relevant evidence is admissible under Evid.R. 402. Evid.R. 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. In conjunction, Evid.R. 403 provides that although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusing the issues, or of misleading the jury. The police officer's testimony was relevant because it established that defendant was present at the bank on the night in question and that defendant owned the murder weapon. Defendant states the unfair prejudice of the admission of the police officer's testimony and his opinion far outweighs any probative value the testimony may have had. We disagree. The police -9- officer's testimony was properly admitted and we cannot find any evidence of unfair prejudice. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE TRIAL COURT ERRED BY ALLOWING IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTIMONY INTO EVIDENCE. Defendant argues Elena Darling's testimony was irrelevant and prejudicial because it consisted of untrue allegations which were not probative of whether he was innocent or guilty. The specific testimony defendant refers to is Darling stating her boyfriend was afraid of defendant, defendant was looking for her boyfriend, that she and her boyfriend hid from defendant on the night in question. Defendant claims this testimony was prejudicial because it portrayed him as being in a fit of rage and showed his propensity towards violence. The state counters by maintaining the testimony of Darling was relevant because it proved defendant and the shooter were together on the night in question and when defendant threatened her boyfriend it showed defendant's demeanor. Under Evid.R. 401, relevant evidence is defined 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 have without the evidence. The admission of relevant evidence pursuant to Evid.R. 401 rests within the sound discretion of the trial court. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. When an appellate court reviews -10- the admission of evidence, it must limit its review to whether the trial court abused its discretion. An abuse of discretion implies that the court acted unreasonably, arbitrarily or unconscionably. Id. We cannot say the trial court abused its discretion when it admitted Darling's testimony. Darling testified she and her boyfriend were staying at the shooter's house on the night in question. She stated they went into the bedroom when defendant arrived because her boyfriend was scared of defendant. She said defendant and the shooter left and returned and then they left again for an hour and returned. Darling testified that defendant's demeanor was fine but she only saw defendant early in the evening and not later when defendant and the shooter returned the second time. This testimony is relevant because it established that defendant and the shooter were together on the night of the murder and corroborated the testimony showing defendant and the shooter went to the bank two times. Accordingly, the trial court did not abuse its discretion by admitting Darling's testimony and defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: WHERE THE COURT PROVIDES THE JURY WITH INACCURATE TRIAL PHASE INSTRUCTIONS, A DEFENDANT IS DEPRIVED HIS PROTECTION UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Defendant argues the flawed jury instructions transformed the case from a requirement of specific intent to cause the death of another to allowing the jury to convict for murder on a finding of less than specific intent. -11- The state maintains jury instructions should be reviewed in their entirety and in the instant case the trial court properly instructed the jury because the instruction for specific intent was included in the instructions for aggravated murder and murder. In addition, the state claims defendant never objected to the jury instructions so any error is now waived. Defendant did not object to the court's jury instruction on specific intent; therefore, we deem these errors waived and proceed under a plain error analysis. Crim.R. 52(B); State v. Long (1978), 53 Ohio St.2d 91. Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Id. at paragraph three of the syllabus. The instruction defendant complains about reads as follows: The causal responsibility of the defendant for an unlawful act is not limited to its immediate or most obvious result. He is responsible for the natural, logical and foreseeable results that follow in the ordinary course of events from an unlawful act. The test for foreseeability is not whether defendant should have foreseen the injury in its precise form or as to specific person. The test is whether a reasonable prudent person in light of all the circumstances would have anticipated that death was likely to result to anyone from the performance of an unlawful act. In a recent case, State v. Stoudemire (Feb. 27, 1997), Cuyahoga App. No. 69335, unreported, this court considered the same issue presented by defendant, i.e., whether the trial court's jury instruction on causation transformed the specific intent required to commit murder into something less than specific intent. We held the instructions did not amount to plain error because they -12- adequately instructed the jury that it could convict only upon a showing of purposeful behavior; the trial court instructed the jury that it could infer purpose from the use of a deadly weapon; and defendant presented no evidence suggesting the murder had been committed either unknowingly or recklessly. Likewise, this trial court instructed the jury it could convict the defendant of aggravated murder only if they found he acted with purposeful behavior and that purpose and intent are the same. This instruction was given before the causation instruction. Also, later on the jury requested an explanation of the difference between intent and purpose related to murder and aggravated murder and the trial court went into even greater detail to clarify and define these two terms. Under these circumstances, we are unable to find the instruction on causation prejudiced defendant to the extent that a manifest miscarriage of justice occurred. Defendant's third assignment of error is overruled. Defendant's fourth assignment of error states as follows: THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBJECT TO CLEARLY IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTIMONY AND WHEN COUNSEL FAILED TO OBJECT TO CLEARLY IMPROPER JURY INSTRUCTIONS. Defendant argues defense counsel erred by not objecting to the admittance of Elena Darling's testimony, which was irrelevant and prejudicial, and not objecting to the causation jury instruction. As previously stated, Darling's testimony was not irrelevant or prejudicial. Also, defense counsel objected on several occasions during Darling's cross-examination. Similarly, the -13- causation instruction given by the trial court, while not explaining the mens rea requirement with the utmost detail, did adequately convey to the jury the necessary intent or purposeful behavior needed to convict for aggravated murder. The causation issue was discussed more fully in the previous assignment of error. Because the complained of testimony and jury instruction were properly admitted, defense counsel did not violate an essential duty by not objecting to their admission and no prejudice resulted from defense counsel not objecting. State v. Lyle (1976), 48 Ohio St.2d 391. Therefore, defendant's fourth assignment of error is overruled. Defendant's fifth assignment of error states as follows: THE TRIAL COURT ERRED BY NOT PRECLUDING AN ORAL STATEMENT FROM THE EVIDENCE IN CONTRAVENTION OF OHIO RULE OF CRIMINAL PROCEDURE 16(B). Defendant complains the trial court erred by allowing a state's witness to testify regarding an oral statement he made on the night of his arrest. This testimony, defendant claims, should have been excluded because the state never provided defense counsel with the oral statement pursuant to Crim.R. 16(B)(1). The state maintains the witness was made available to defendant prior to trial and was listed as a witness. In addition, the state argues the contents of the statement were made known to defense counsel through the course of pretrial discussions. The testimony defendant complains of was elicited on the direct examination of the police officer who arrested defendant, the testimony reads as follows: -14- Q. Okay. Sergeant Cross, after you arrested the defendant and advised him that he was being placed under arrest in connection with the homicide of Robin Kasper, what did he say to you? A. At the time he said he didn't know anything about it. Crim.R. 16(B)(1)(a)(i) and (ii) require the state, upon motion, to disclose to the defendant [r]elevant written or recorded statements made by the defendant, as well as [w]ritten summaries of any oral statement, or copies thereof, made by the defendant. In State v. Bidinost (1994), 71 Ohio St.3d 449, 456, the Court held that Crim.R. 16(B)(1)(a)(ii) requires the prosecution to reduce a defendant's oral statements to writing, in the form of a summary, to be provided to the defense during discovery. This was not done in this case. Crim.R. 16(E)(3) provides that: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. In State v. Parson (1983), 6 Ohio St.3d 442, syllabus, the Court held: 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 foreknowledgeof 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 -15- Crim.R. 16(E)(3) by permitting such evidence to be admitted. A review of the record reveals no evidence that the state's violation of Crim.R. 16(B) was willful. Second, regarding a benefit to the defense of foreknowledge of these statements, defendant argues he should have been provided with the statement but does not state how prior knowledge of the statements would have assisted in his defense. The Ohio Supreme Court has clearly held that a bald assertion to this effect is insufficient to demonstrate that the trial court committed reversible error. State v. Wiles (1991), 59 Ohio St.3d 71, 79. As for the possibility of prejudice, the police officer testified that defendant denied any involvement in the crime. However, the prosecution attempted to show through the use of videotape and other testimony that defendant was at the scene, approached the victim's car, and was aware the crime was being committed. The police officer's testimony was used to impeach defendant's credibility by showing that defendant initially lied about his involvement with the crime. Any prejudice resulting from the police officer's statement was minimal because it related to defendant's credibility rather than direct evidence of his participation. At trial, defendant did not argue he was not at the scene and was totally oblivious that the murder occurred; he argued he did not participate in the crime and was unaware it was taking place. Thus, his alleged statement denying involvement would not, -16- with any significance, reduce the effectiveness of his trial strategy that he did not participate in the crime. In Wiles, supra, the Court discussed the third prong of the test in Parson, and determined it was significant that the only sanction urged of the court * * * was the exclusion of [the] testimony, whereas Crim.R. 16(E)(3) provided for the granting of a continuance. 59 Ohio St.3d at 80. The Wiles court subsequently held that no prejudice to a criminal defendant results where an objection is made at trial to the admission of nondisclosed discoverable evidence on the basis of surprise but no motion for a continuance is advanced at that time. Id at 80, (citing State v. Edwards [1976], 49 Ohio St.2d 31, 42-43). As in Wiles, counsel in the instant requested that the statement be excluded and did not ask for a continuance. Thus, under the authority cited above, as a matter of law no prejudice resulted from the admission of the nondisclosed statement, Accordingly, defendant's fifth assignment of error is overruled. Defendant's sixth assignment of error states as follows: THE VERDICT FINDING THE APPELLANT GUILTY OF MURDER AND AGGRAVATED ROBBERY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues the jury verdict was against the manifest weight of the evidence. Defendant claims there is no evidence indicating that he participated in the homicide. He maintains the only evidence which is not exculpatory is that of another inmate who testified that defendant told him that defendant ordered the shooter to shoot the victim. In addition, defendant professes that -17- he did not drive to the bank and was unaware that the shooter was going to commit a robbery and kill someone. He claims he was not near the victim's car at any point during the shooting. The state counters by arguing there is ample evidence to prove that defendant acted in concert with the shooter to shoot and kill the victim and commit a robbery. First, it is uncontested that defendant's gun was used in the shooting and that defendant was at the bank at the exact same time as the shooting. Second, pictures from a videotape show the shooter's car behind the victim's car. The pictures then show the shooter faking a transaction and seconds later forcing his upper torso into the victim's car. At the same time, the pictures reveal that the shooter's car is empty and a figure is standing behind and on the passenger's side of the victim's car. In determining whether a criminal conviction is against the manifest weight of the evidence, a court of appeals must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence , the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of defendant. Id. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. -18- State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A reviewing court may not reverse a conviction in a criminal case where the record shows that a verdict of guilty was returned by a jury on sufficient evidence and no prejudicial errors occurred. Id. at paragraph two of the syllabus. Based upon a thorough review of the entire record, we find that the jury's verdict was not a manifest miscarriage of justice, and that competent, credible evidence existed to support both of defendant's convictions. Defendant does not contest that his gun was used and that he was at the scene when the shooting occurred. The evidence shows defendant and shooter pulled in behind the victim, the shooter then faked an ATM transaction and forced his way into the victim's car. He then shot and killed the victim and took her money. Meanwhile, defendant exited the car and approached the victim's car on the passenger's side. After the shooting, defendant and the shooter backed up, hit a car and telephone pole, and drove away. The people whom defendant and shooter backed into and a young boy who saw the pair smash the telephone pole identified defendant and another witness testified defendant and shooter nearly hit his car as they were escaping. Given the evidence against defendant and the absence of any contradictions or conflicts, this Court cannot say that the trier of fact lost its way and created a manifest miscarriage of justice. Therefore, defendant's sixth assignment of error is overruled. Judgment affirmed. -19- 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 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. NAHRA, P.J. KARPINSKI, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 -20- journalization of this court's announcement of decision by the .