COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71431 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES WASHINGTON, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 31, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 332765 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James C. Young, Esq. Cuyahoga County Prosecutor The Leader Building By: Patrick J. McCarthy, Esq. 526 Superior Avenue #733 Assistant Prosecuting Atty. Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- ROCCO, J.: Defendant-appellant James Washington, Jr. appeals from his conviction for robbery. Appellant asserts the trial court erred in permitting the prosecution to introduce evidence of his prior convictions, instructing the jury regarding a proposed defense exhibit which had been excluded from evidence, and refusing to instruct the jury on a lesser included offense to the crime for which he was indicted. This court has reviewed the record and has determined the trial court committed no error; therefore, appellant's conviction is affirmed. Appellant's conviction resulted from an incident which occurred on the evening of October 14, 1995 at a Reider's Stop-N- Shop supermarket located at 12782 Rockside Road in Garfield Heights, Ohio. At approximately 8:00 p.m., Christie Prybor, a cashier, processed the merchandise of a customer in her line. The total came to a little over $72.00. To pay for the merchandise, the woman customer handed Prybor a payroll check from "Home Bar Accessories, Inc." payable to "Stacie A. DeGennaro" in the amount of $452.03. Prybor followed store procedure, taking the payroll check to the store office for approval. She presented it to the head cashier, Mary Kroggel. Prybor then waited outside the office area while Kroggel went to her computer to verify the check. Kroggel soon discovered the check was on a list of stolen checks sent to the store that day from the main office. She called the police and used the store's public address system to page the -3- security guard, Thomas Mancini. In addition to his duties at the store, Mancini also was employed as a police officer by two suburban police departments. He was wearing an officer's badge on his plainclothes that evening. As Prybor was standing outside the store's office waiting for Kroggel to finish her procedures, the customer who had presented the check approached her in a "nervous" manner and asked her a question. Prybor replied she was waiting until the check was verified. At that, the woman quickly left the store. By this time, Mancini had responded to his page and saw the woman exiting. Kroggel swiftly explained the situation, giving him a description of the woman customer he had just observed leaving. Mancini went out of the store, closely followed by Prybor and Kroggel. He immediately observed the woman fitting Kroggel's description on the store's well-lit front sidewalk. Mancini approached the woman, identified himself as a police officer, and requested her to return inside the store. The woman refused, then, as Mancini attempted to escort her, 1 she resisted, becoming "combative." She "began fighting" him by "kicking and punching." Mancini put his arms around the woman in a "bear hug" in an attempt to restrain her and to return her inside the building. At that point, the three store employees noticed a two-door brown Ford automobile with a beige top had been driven near and 1 Quotes indicate testimony given by a witness at appellant's trial. -4- stopped in front of the store. Mancini continued to struggle with the woman. The driver of the car, later identified as appellant, exited leaving the driver's side door open. Appellant approached Mancini and ordered him to "get your hands off her." Mancini stated he was "a police officer, she's coming back in with me." Appellant then "struck" Mancini from the rear two to three times, until Mancini released the woman in order to defend himself. During his scuffle with Mancini, appellant shouted at the woman to "run to the car;" to "go." The woman obeyed, entering the passenger side of the Ford. She left the door open, shifted into the driver's seat, closed the driver's side door, put the car into gear, and began to drive the car forward. Appellant disengaged himself from Mancini, then "jumped into the car." The woman drove away quickly, but not before both Kroggel and Mancini noted the vehicle's license number. Thereafter, the witnesses gave their information to the police officers investigating the incident. Four days later, Mancini picked appellant's photograph out of a photographic array. On January 23, 1996, appellant was indicted on one count of aggravated robbery, R.C. 2911.01, with an aggravated felony specification for a 1991 conviction for robbery, case number CR-256854. Appellant pleaded not guilty to the charge and retained 2 counsel to represent him. Counsel filed his discovery motions on 2 Appellant's trial counsel continues to represent him in this appeal. -5- February 9, 1996. The state responded on May 31, 1996. Appellant thereafter filed a notice of alibi on July 11, 1996. After several pretrials, appellant's case proceeded to a jury trial commencing on August 6, 1996. The state presented the testimony of Prybor, Kroggel, and Mancini. In addition, Stacie DeGennaro, the actual owner of the payroll check, and Detective Joseph Jaroscak, who led the investigation of the incident, also testified. Several exhibits, including the check and other items which had been stolen from Ms. DeGennaro, were introduced into evidence. Subsequently, the trial court overruled appellant's motion for acquittal. Thereafter, appellant presented the testimony of three witnesses in his defense. Appellant's mother and Arnold Flonnay, a close friend of the family, testified that on the evening of the incident, appellant was at his mother's house for his birthday celebration. Charlotte Kelly, who testified she knew appellant only "from the street," not "personally," stated she was the woman who had presented the stolen check at the supermarket and that her friend "Rodney Burg" had been her companion that night. On cross-examination, the trial court permitted the state to inquire into Kelly's background; specifically, the state was permitted to elicit information that Kelly had been a co-defendant of appellant's in 1990 and 1992. Thereafter, appellant stipulated to these convictions. Ultimately, the jury found appellant guilty of robbery, in violation of R.C. 2911.02. After a presentence investigation and -6- report, appellant was sentenced to a term of incarceration of eight to fifteen years. Appellant has filed a timely appeal and presents four assignments of error for review. The first two are related; thus, they are addressed together as follows: I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT OVERRULED APPELLANT'S OBJECTION AND PERMITTED THE STATE TO INTRODUCE EVIDENCE REGARDING APPELLANT'S PRIOR CONVICTIONS. II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT PERMITTED THE STATE TO INTRODUCE EVIDENCE WITHOUT PRIOR NOTICE WHICH WAS REQUESTED WELL IN ADVANCE OF TRIAL DENYING APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS. Appellant argues his right to a fair trial was compromised when the state was permitted to introduce evidence of his prior convictions during cross-examination of defense witness Charlotte Kelly. Citing Evid.R. 609(A) and 403(B), he asserts any probative value of the evidence was outweighed by its prejudicial effect. Appellant further argues the prosecution's failure to notify him in advance of its intent to introduce this evidence impaired his defense. Appellant's arguments are unpersuasive. Appellant called Charlotte Kelly as a witness as part of his effort to establish an alibi. Thus, on direct examination, Kelly testified she did not know appellant "personally;" rather, he was merely someone she knew "from the street." Moreover, on the date -7- of the incident, when she went to the store to "get the cashier the check," her companion was not appellant but someone else. The state, with the trial court's permission, therefore questioned Kelly closely with respect to two prior cases in which she had been indicted with appellant and for which both she and appellant had been convicted. Both convictions involved theft and theft offenses such as forgery. One of these cases was CR-256854, which was listed on the indictment as the basis for the specification. Later, appellant stipulated that Kelly was his co- defendant in these two cases. A review of the record reveals the prosecution's line of questioning of Kelly was permissible pursuant to Evid.R. 609(A) and 616. Evid.R. 609(A) states: RULE 609. Impeachment by Evidence of Conviction of Crime (A) General rule. For the purpose of attacking the credibility of a witness: (1) Subject to Evid.R. 403, evidence that a witness other than the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted. (2) Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice of confusion of the issues, or of misleading the jury. (3) Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B) evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance. (Emphasis added.) Evid.R. 616 states: -8- RULE 616 Bias of Witness Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence. (Emphasis added.) Since the trial court has broad discretion in the admission of impeachment evidence introduced pursuant to Evid.R. 609(A), its decision can be reversed only for an abuse of that discretion. State v. Wright (1990), 48 Ohio St.3d 5 at 7; State v. Amburgey (1987), 33 Ohio St.3d 115. It is beyond question that both of the convictions for which Kelly was subjected to cross-examination were punishable by terms of imprisonment of more than one year. It is also clear that the offenses involved crimes of dishonesty. State v. Johnson (1983), 10 Ohio App.3d 14. Thus, for this court to hold the trial court abused its discretion in admitting the evidence, the evidence's prejudicial effect must have outweighed its probative value. State v. Wright, supra. As Evid.R. 616 indicates, however, the possible bias of a witness is always significant in assessing credibility. State v. Williams (1988), 61 Ohio App.3d 594. Therefore, the trier of fact must be sufficiently informed of any underlying relationship between the witness and a party since evidence of a relationship can be evidence of bias. State v. Eben (1992), 81 Ohio App.3d 341; United States v. Abel (1984), 469 U.S. 45. Kelly put her declaration into issue in this case when she denied she had any real relationship with appellant. Id. On -9- cross-examination, she restated her contention that she hardly knew appellant. In view of her denials, the state had no other choice but to bring forward the evidence of their past relationship which was embodied in their common prior convictions. Without another way to demonstrate Kelly had a motive to lie, the probative value of the evidence outweighed its prejudicial effect. United States v. Abel, supra; State v. Eben, supra; see, also, State v. Brooks (1997), 75 Ohio St.3d 148 at 152; cf. State v. Hesson (1996), 110 Ohio App.3d 845. Moreover, the trial court gave an instruction to the jury with regard to the limited purpose for which the evidence could be considered. Therefore, the trial court did not abuse its discretion in permitting the introduction of this evidence. State v. Wright, supra; State v. Ferguson (1983), 5 Ohio St.3d 160. Furthermore, the record renders specious appellant's argument that the state's failure to notify him in advance of its intent to use this evidence constituted an unfair disadvantage to his defense. The state not only specifically relied upon one of the convictions to support the specification listed on the indictment, but included that conviction in its Bill of Particulars. Under these circumstances, appellant can hardly insist he was totally unaware the state intended to present evidence of his prior convictions. -10- Moreover, the witness Charlotte Kelly was subpoenaed by 3 appellant, not the state. Indeed, the record reveals the prosecution was surprised at trial by this witness since appellant failed to provide her name on the list of witnesses he intended to call to establish his alibi. The state can hardly be expected to notify appellant in advance of how it intends to cross-examine a surprise defense witness. See, e.g., State v. Hicks (1976), 48 Ohio App.2d 135. For the foregoing reasons, appellant's first two assignments of error are without merit, thus, they are overruled. Appellant's third assignment of error states: III. THE JURY INSTRUCTION REGARDING THE EXCLUDED PHOTO WAS MISLEADING AND PREJUDICIAL. Appellant argues the trial court inappropriately answered a question submitted to it by the jury during their deliberations. Appellant states the jury question concerning a proposed defense exhibit which the court did not permit to be introduced into evidence. Appellant fails to cite the portion of the record, however, which illustrates the alleged error as required by App.R. 16(A)(3) and (D). Moreover, the alleged error does not appear in the transcript of the trial proceedings. Finally, the record reflects appellant did not object to the trial court's action in excluding 3 The record reflects the subpoena was filed on July 31, 1996, only one week before trial commenced. -11- the proposed exhibit from evidence. State v. Williams (1977), 51 Ohio St.2d 112. Hence, since this court is foreclosed from meaningfully addressing appellant's third assignment of error, it is overruled. See, e.g., North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App. 342 at 344. Appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT REFUSED TO INSTRUCT THE JURY ON AN APPROPRIATE LESSER INCLUDED OFFENSE. Appellant argues the trial court improperly refused to instruct the jury on the lesser included offense of assault. It must be noted appellant failed to object to the trial court's jury instructions, thus, he has waived any claim of error on appeal. Crim.R. 30(A); State v. Franklin (1991), 62 Ohio St.3d 118 at 128; State v. Underwood (1983), 3 Ohio St.3d 12. Furthermore, an instruction on a lesser included offense is appropriate only where "the trier of fact can find for the defendant and against the state on some element of the greater offense which is not required to prove the commission of the lesser included offense and for the state on the elements required to prove the commission on the lesser offense." State v. Solomon (1981), 66 Ohio St.2d 214, paragraph two of the syllabus. It is thus with the discretion afforded a trial court to refuse to instruct the jury on a lesser included offense. It is elementary that the fact situation controls the trial court's charge to the jury. State v. Thomas (1988), 40 Ohio St.3d -12- 213. In a criminal case where the evidence adduced on behalf of the defense is such that, if accepted by the trier-of-fact, it would constitute a complete defense to all substantive elements of the crime charged, the trier will not be permitted to consider a lesser included offense. State v. Nolton (1969), 19 Ohio St.2d 133; State v. Peoples (1971), 28 Ohio App.2d 162. In this case, appellant completely denied being the perpetrator of the crime. Indeed, his defense was that he was elsewhere at the time the incident occurred, therefore, the woman was aided by a different person. The trial court included the instruction on the lesser included offense of robbery only because of Mancini's testimony concerning the extent of the harm he suffered. Since appellant completely denied the elements of any crime, the trial court committed no error in failing to instruct the jury on the lesser included offense of assault. State v. Underwood, supra; State v. Thomas, supra. Accordingly, appellant's fourth assignment of error is also overruled. Appellant's conviction is affirmed. -13- 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 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. DAVID T. MATIA, P.J., AND ANN DYKE, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .