COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71274 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DEVIN D. CHANEY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 28, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-336617. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Anthony J. Kellon, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Butler, Esq. 75 Public Square Suite 1111 Cleveland, OH 44113 2 DAVID T. MATIA, J.: Devin D. Chaney, defendant-appellant, appeals from his conviction of one count of aggravated robbery in violation of R.C. 2911.01 and one count of felonious assault in violation of R.C. 2903.11. Defendant-appellant assigns three errors for review. For the following reasons, this court affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On March 26, 1996, Devin Chaney, defendant-appellant, was indicted with two counts of aggravated robbery with firearm specifications and one count of felonious assault with a firearm specification. On June 12, 1996, defendant-appellant waived his right to a speedy trial. A trial began on July 17th. The state presented four witnesses. Detective Calvin Barrow of the Cleveland Police Department testified that on November 8, 1995 at approximately 8:00 p.m., he was on basic patrol paying particular attention to the corner of East 138th Street and Harvard Avenue. The police department had received numerous complaints alleging drug use and trafficking in that area. As the detective approached the corner, he observed one male lying down on the ground surrounded by three other males. The detective believed the males were either fighting or intoxicated. Detective Barrow pulled his car up to the scene and exited his patrol car. At that time he heard the male shout that he had just been robbed. At approximately the same time, other patrol officers appeared on the scene. 3 The three males ran in an effort to elude the officers. The individuals were later identified as Clarence Norris, Terrence Williams, and Devin Chaney, defendant-appellant. Detective Barrow testified that Clarence Norris ran right past him holding a black semi-automatic nine millimeter handgun. The detective shouted to the other officers who had just arrived that a man had just been robbed and that one of the perpetrators had a gun. Detective Martin and other officers followed Clarence Norris while Detective Barrow and his partner chased defendant-appellant and Terrence Williams. Detective Barrow testified that he did not lose sight of defendant-appellant and that he had just missed him with his hand when defendant-appellant jumped in the passenger door of a get-away vehicle and sped away. Detective Barrow immediately got on his radio and gave a description of the vehicle. Approximately thirty (30) to forty (40) seconds later, he heard that the vehicle had been stopped and the suspects apprehended. The detective then identified defendant-appellant as the man he had chased. The detective later found out that there were actually two victims of the robbery, Mario Cooper and Risque Walker. Both victims' jackets were taken from them and Mario Cooper was robbed of approximately $8.00 and a gold chain. The state also presented the testimony of Detective Martin who stated that he approached the scene just as Detective Barrow and his partner had exited their patrol car. Detective Martin testified that he heard Detective Barrow call out that a robbery 4 had just occurred and that one of the individuals had a weapon. Detective Martin chased Clarence Norris who, upon demand, stopped running and dropped the weapon in the middle of the street. Detective Martin retrieved the weapon while other officers took Clarence Norris into custody. Furthermore, Detective Martin testified that he observed Detective Barrow chasing two other individuals in the opposite direction. The detective then identified defendant-appellant as one of those individuals. After the other officers had Clarence Norris in custody, he and his partner drove to the area in which they observed Detective Barrow chasing defendant-appellant. At that time, the detective observed a vehicle with its lights off coming out of the street they were approaching. With the help of zone cars who were called for assistance, the vehicle was eventually pulled over and Detective Martin pulled defendant- appellant out of the passenger seat. The state also presented the testimony of one of the victims, Mario Cooper. Mr. Cooper testified that he and his friend, Risque Walker, were walking down Harvard Avenue when they were approached by three males. One of them pointed a gun at Mr. Cooper's stomach and told them to get on the ground. When Mr. Cooper complied with this order, he was robbed of a gold chain, coat and $8.00. When the police arrived at the scene, Mario Cooper testified that the three males ran away. Finally, Mr. Cooper identified defendant- appellant as one of the males and the one who took his chain. The state's final witness was Detective Terrence Langstreet, 5 Detective Barrow's partner, who also pursued Terrence Williams and defendant-appellant. Detective Langstreet was able to apprehend Terrence Williams before defendant-appellant got into the get-away car. Moreover, after the get-away car was stopped, Detective Langstreet went over and identified defendant-appellant as one of the males they had chased. After the state rested, defense counsel made a Crim.R. 29 motion for acquittal on all counts. The trial court granted the motion as it applied to count three only, i.e., aggravated robbery upon Risque Walker. Defense counsel then called three witnesses to the stand including defendant-appellant. Defendant-appellant testified that he was called by a friend who asked if he could pick him up at an apartment located near the corner of East 138th Street and Harvard Ave. Defendant-appellant's friend, Robert Eskridge, drove him to the location and parked approximately one block away from the apartment. Defendant- appellant walked to the apartment and was told that he had missed his friend who just left. On his way back to the car, he saw the police walking towards him telling him to come here. Defendant- appellant testified that since he had marijuana in his pocket, he began running away. When he reached the car, he told his friend to leave. Shortly after driving off, defendant-appellant testified they were pulled over by another patrol car, searched and arrested. Defendant-appellant testified that he did not participate in the robbery of Mario Cooper and Risque Walker. Robert Eskridge, who 6 was also called to the stand, corroborated defendant-appellant's version of the events. Defense counsel also called Clarence Norris who testified that he paged defendant-appellant to come over and pick him up on the night of the robbery. Since defendant-appellant did not show up, Clarence Norris and his brother-in-law, Terrence Williams, left the apartment building. He testified that since the two did not have bus money to get back home, they robbed two males on the street. Clarence Norris testified that defendant-appellant was not with them at the time of the robbery. On July 23, 1996, the jury returned a verdict of guilty of aggravated robbery as charged in count one and felonious assault as charged in count two of the indictment but not guilty of the firearm specifications. Defendant-appellant was sentenced to five (5) to twenty five (25) years on count one and three (3) to fifteen (15) years on count two. Each count was to run concurrently. Defendant-appellant timely files this appeal. II. FIRST ASSIGNMENT OF ERROR Devin D. Chaney, defendant-appellant, states as his first assignment of error: . DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. . ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues his conviction was based upon evidence that was consistently contradicted, uncertain, conflicting, and based upon the uncorroborated testimony of Mario 7 Cooper. Specifically, defendant-appellant argues that Mario Cooper testified that defendant-appellant was the male who took his gold chain yet all the property taken from the victim was found on Clarence Norris. Moreover, defendant-appellant argues Mario Cooper's testimony regarding the robbery and assault conflicts with the testimony of defendant-appellant, Clarence Norris and Robert Eskridge, an independent witness. As such, it was not the type of evidence upon which a reasonable fact-finder should have based a conviction for the offenses charged. For these reasons, defendant- appellant argues the verdicts were against the manifest weight of the evidence. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex re. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. 8 The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. 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. Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence we must accord due deference to those determinations made by the trier of fact. 9 . DEFENDANT-APPELLANT'S GUILTY VERDICT WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, the state presented the four witnesses. One witness was Detective Barrow who testified that when he approached the scene, he witnessed three males surrounding an individual lying on the ground. When Detective Barrow pulled his car up to the scene and exited his patrol car, he heard a male shout that he had just been robbed. The three males ran in an effort to elude the officers. Detective Barrow testified he chased after defendant-appellant and Terrence Williams. Detective Barrow testified that he did not lose sight of defendant-appellant and that he just missed him with his hand when defendant-appellant jumped in the passenger door of a get-away vehicle and sped away. Shortly thereafter, Detective Barrow was informed that the vehicle had been stopped and defendant-appellant apprehended. The state also presented the testimony of one of the victims, Mario Cooper. Mr. Cooper testified he was walking down the street with his friend. When three males approached them, one pointed a black gun at his stomach and told them they were being robbed. Mario Cooper identified defendant-appellant as one of the three males who robbed him. He then testified that when the police arrived, the three individuals ran off and were eventually apprehended by the police. We recognize that the victim testified that it was defendant- appellant who actually took his gold chain rather than Clarence Norris. However, after considering the corroborating evidence in 10 the record and the trauma associated with being a victim of an armed robbery, it is our opinion that this contradiction does not effect the credibility of the victim's overall testimony. After a review of the entire record, we find sufficient and credible evidence supporting the determination of the fact-finder. Therefore, we cannot hold that the jury lost its way in finding defendant-appellant guilty of aggravated robbery and felonious assault. The verdicts are not against the manifest weight of the evidence. Defendant-appellant's first assignment of error is not well taken. III. SECOND AND THIRD ASSIGNMENTS OF ERROR As Devin D. Chaney's, defendant-appellant's, second and third assignments of error contain similar issues of law and fact, we will consider them concurrently: II. PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. III. THE TRIAL COURT ERRED WHEN IT PERMITTED TESTIMONY OF OTHER CRIMES, ACTS, OR WRONGS, ATTRIBUTED TO DEFENDANT-APPELLANT TO BE INTRODUCED OVER OBJECTION AND BY ITS FAILURE TO GIVE A LIMITING INSTRUCTION BOTH DURING THE COURSE OF TRIAL AND IN THE GENERAL CHARGE TO THE JURY, THE PURPOSES FOR WHICH EVIDENCE PRESENTED BY THE PROSECUTOR COULD BE USED. . ISSUE RAISED: WHETHER THE PROSECUTOR'S CROSS-EXAMINATION DENIED DEFENDANT-APPELLANT OF A FAIR TRIAL AND THE ADMISSIBILITY OF OTHER BAD ACTS. Defendant-appellant argues the conduct of the prosecutor during cross-examination constituted reversible error. Specifically, defendant-appellant argues the prosecutor committed 11 misconduct when he repeatedly questioned defendant-appellant about his opinion as to the truthfulness of another witness' testimony. Moreover, the trial court failed to admonish the jury to disregard these prejudicial and highly inflammatory questions and answers. Finally, in both the second and third assignments of error, defendant-appellant argues the prosecutor committed misconduct by repeatedly questioning defendant-appellant matters outside the record (prior charges of robbery) over the objections sustained by the trial court. Moreover, the trial court's failure to provide a curative instruction regarding the scope and/or admissibility of such testimony only compounded the error in the eyes of the jury. Defendant-appellant's second and third assignments of error are not well taken. . STANDARD OF REVIEW: PROSECUTORIAL MISCONDUCT AND OTHER ACTS EVIDENCE. The conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial. It must be clear beyond a reasonable doubt that absent the conduct of the prosecution, the jury would still have found the defendant guilty. State v. Vrona (1988), 47 Ohio App.3d 145. Importantly, we must consider the effect the misconduct had on the jury in the context of the entire trial. See Donnelly v. DeChristoforo (1974), 416 U.S. 637, 643-645; State v. Keenan (1993), 66 Ohio St.3d 402, 410. Moreover, it is within the trial court's discretion to allow the prosecution, on cross-examination, 12 to inquire whether another witness was lying. State v. Curry (December 17, 1992), Cuyahoga App. No. 63438, unreported. With regard to the admissibility of other acts evidence, it is well established evidence tending to prove that the accused has committed other acts independent of the crime for which he is on trial is inadmissible to show that the defendant acted in conformity with his bad character. State v. Gumm (1995), 73 Ohio St.3d 413, 426. However, 2945.59, states: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. See, also, Evid.R. 404(B). In order to establish that evidence as to other acts falls within this exception, the state must demonstrate that the defendant utilized an identifiable scheme, plan, or system to commit the crime. State v. Elliot (1993), 91 Ohio App.3d 763. . THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT-APPELLANT DID NOT DENY HIM OF A FAIR TRIAL. Initially, defendant-appellant argues the following cross- examination between defendant-appellant and the state prosecutor denied him of a fair trial: Q. Now you heard Mario Cooper testify correct? 13 . Yes. Q. And he pointed you out? . Yes. Q. And you heard him testify that you took something that belonged to him? . Yes. Q. Was he telling the truth or was he lying? A Lying. * * * . Do you remember the police officers testifying that they saw you and Clarence and Mr. Williams surrounding the victims' (sic) do you remember that? A. Yes, I remember -- I recall it. . Now, what about that testimony, was that the truth or was that a lie? A. That's a lie. . So everybody that's stepped into this courtroom and pointed you out as being involved in that robbery, they were lying. A. Yes. They buddies. This type of questioning is analogous to that addressed in State v. Garfield (1986), 34 Ohio App.3d 300, 303, where the court stated: In our system of jurisprudence, wide latitude is allowed on cross-examination of a witness. Cross- examination is invaluable because it is a method of testing the accuracy, truthfulness and credibility of testimony. The limits to which a witness may be cross-examined rests in the sound discretion of the trial judge and this should not be interfered with unless the court abuses its discretion to the prejudice of the party complaining. Citing, State v. Huffman (1912), 86 Ohio St. 229. 14 In this case, we find that not only did defense counsel fail to object to the line of questioning, see State v. Landrum (1990), 53 Ohio St.3d 107, but the allowance of this cross-examination by the trial court does not rise to the level of an abuse of discretion. See Garfield, supra; Curry, supra. Defendant-appellant also argues that he was materially prejudiced when the prosecutor improperly commented on matters outside the record and by the trial court's failure to provide a curative instruction: . You never appeared in court because you were charged with a robbery? A. No. . Never before in your life? A. I never robbed nobody in my life. . Were you ever charged with robbery before? A. No. . Think real hard. A. Yes, but I never robbed nobody. Q Okay when? When were charged before? [DEFENSE COUNSEL]: Objection. [THE COURT]: Sustained. . So Someone accused you of robbery in the past, is that correct? A. Yes. [DEFENSE COUNSEL]: Objection. [THE COURT]: Sustained. . But you didn't rob nobody? 15 [THE COURT]: Sustained. Sustained. . And its your testimony you never robbed anybody in the past? . No, I never robbed nobody in this case. No. Q. I didn't say this case. . I never robbed nobody. Initially we note that this is the extent of the evidence regarding other acts. The state did not attempt to solicit and/or introduce any additional evidence regarding this subject. However, we agree with defendant-appellant that the prosecutor overstepped the bounds of appropriate cross-examination by continuing the line of questioning regarding other acts after the trial court sustained defense counsel's objection. See, Gumm, supra; Elliott, supra. However, after a review of the entire record, we do not find this error and/or the cross-examination as a whole violated defendant-appellant's right to a fair trial. In other words, when considering the record in its entirety, the cross-examination dealing with other acts did not contribute to defendant- appellant's conviction. State v. Lytle (1976), 48 Ohio St.2d 391. Thus, it is clear beyond a reasonable doubt that absent the conduct of the prosecution, the jury would still have found the defendant guilty of aggravated robbery and felonious assault. See Vrona, supra. Defendant-appellant's second and third assignments of error are not well taken. Judgment affirmed. 16 17 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. JAMES D. SWEENEY, C.J. and LEO M. SPELLACY, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .