COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71923/71924 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION KENNETH SOVA : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 9, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-342,179 and : CR-342,178 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor GAIL DENISE BAKER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DAVID L. DOUGHTEN Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 441013 KENNETH A. ROCCO, J.: -2- Appellant appeals his conviction by a jury on charges of aggravated robbery, with firearm specifications, and having a weapon while under a disability. Appellant's convictions are affirmed. Having considered the conflicts in the evidence, we do not find that the evidence weighs heavily against the conviction or that the jury verdicts are against the weight of the evidence. We do not find that the trial court abused its discretion by allowing testimony from a victim that briefly mentioned his sleeping difficulties. There is no plain error in the admission of this testimony given that the overall evidence in the record does not show a reasonable probability that the outcome of appellant's trial would have been different absent the posited error. Likewise, there was no due process violation because the evidence does not show a reasonable probability that the outcome of the trial would have been different if certain arguably exculpatory evidence, disclosed to the defense during trial, had been made available prior to trial. On June 12, and again on June 16, 1996, the Broadway Donut Shop in Cleveland was robbed by a man armed with a handgun, who was later identified by the shop's employees as the appellant, Kenneth Sova. In each robbery, a man with a mustache, wearing a baseball cap and sunglasses, entered the shop during the early morning hours, accosted an employee at gunpoint, and forced that person to open the shop's cash register. The armed robber then escaped with slightly less than $100 cash in each instance. -3- A White Castle restaurant was also robbed on the night of June 16, 1996, in the vicinity of the Broadway Donut Shop. The description of the armed man who committed that robbery was similar to the description of the armed man who committed the robbery of the Broadway Donut Shop, except that the White Castle robber had sandy blonde hair. Appellant subsequently was indicted in both Broadway Donut cases for violating R.C. 2911.01, Aggravated Robbery, with firearm and violence specifications, and R.C. 2923.13, Having a Weapon While Under Disability. (Appellant had previously been convicted of armed robbery in 1990). In the June 12 robbery, appellant was also indicted for violating R.C. 2903.11, Felonious Assault, with a firearm specification, but this count was later dropped by the state. T. at 354. At the time the criminal investigations were opened, the detectives were unaware that the same man had robbed the shop both times. The state moved to consolidate the cases at trial on November 13, 1996, and the court granted the motion. The jury returned guilty verdicts on all counts on November 15, 1996, and the trial court imposed sentence on November 26. On the charges of aggravated robbery, appellant received a sentence of ten to twenty-five years, with an additional consecutive sentence of three years on the firearm specifications. On the charges of having a weapon while under a disability, appellant received a sentence of one and one-half to five years, to be served concur- rently with the robbery sentence, with an additional consecutive sentence of three years on the firearm specifications. The court, -4- in effect, sentenced appellant to sixteen to twenty-five years. T. at 444. Appellant appealed his conviction to this court. I. FIRST ASSIGNMENT OF ERROR. Appellant's first assignment of error is that: THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. Appellant argues that the verdicts below were based on evidence so incredulous or incongruous that no reasonable jury could rest the verdict upon its legitimacy beyond a reasonable doubt. App. Brief at 9. The Supreme Court of Ohio recently clarified the appropriate standard for appellate review of a judgment on the manifest weight of the evidence. State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook,J., concurring). The court noted that the standard set forth in State v. Martin (1983), 20 Ohio App.3d 172, was suitable for a manifest-weight inquiry. Id. at 387, 390. An appellate court should review the entire record, weigh the evidence and all rea- sonable inferences, and determine whether, resolving conflicts in the evidence, a manifest miscarriage of justice resulted such that a judgment should be reversed and a new trial ordered. Martin, 20 Ohio App.3d at 175. However, [t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. This court has stated that the defendant has a heavy burden in overcoming the -5- factfinder's verdict. State v. Mays (1996), 108 Ohio App.3d 598, 622. Appellant was identified at trial by Antoinette Maraessa, an employee of the shop, as the armed man who robbed the Broadway Donut Shop on June 12, 1996. T. at 184. Ms. Maraessa testified that appellant held a gun on her during the robbery and asked her to open the register. T. at 178. Appellant contends that the physical description of the robber that Ms. Maraessa provided to the police at the scene of the crime is inconsistent with appel- lant's actual size. Ms. Maraessa testified at one point that the robber was taller than she was but also that she wasn't really paying attention to his height. T. at 177. She is five feet, six inches tall. T. at 218. She later testified that she told the police that the robber was about five feet nine. T. at 210. She also testified that the robber had dark brown hair. T. at 176. Appellant is six feet, two inches tall and weighs one hundred seventy pounds. T. at 294. Appellant was identified at trial by Glenn Reed, an employee of the shop, as the armed man who robbed the Broadway Donut Shop on June 16, 1996. T. at 73-74, 93, 121. Mr. Reed testified that appellant held a gun on him during the robbery and asked him to open the register. T. at 71-76. Appellant contends that Mr. Reed's identification of appellant was tainted by a suggestive photo array. On October 1, 1996, Mr. Reed was shown a photo array of six photographs, but only one of the subjects (appellant) had a -6- mustache. T. at 112-114. However, Mr. Reed identified appellant almost immediately from this array. T. at 117. The Supreme Court of the United States has stated that an in- court identification such as this would constitute reversible error only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384 (emphasis added). While the selection of photographs in the array was not ideal, it did include another possible suspect, and there was no evidence in the record of any suggestive presentation. Mr. Reed testified that his in- court identification of appellant was based on the events of June 16, not on his viewing of the photographs. T. at 118. As in Simmons, supra, the victim, Mr. Reed, was able to view appellant in a well-lighted store. T. at 96, 137-138. Appellant does not dis- pute that the physical description of the mustachioed robber that Mr. Reed provided to the police is consistent with appellant's actual size and appearance. Appellant also was identified at trial as the armed man who robbed the Broadway Donut Shop on June 16, 1996, by Zoann Woodworth, another employee of the shop. T. at 136-137, 139. Ms. Woodworth testified that appellant entered the shop, displayed a gun, and pulled Glenn Reed over to the register. T. at 123, 128- 129. Appellant does not dispute that the physical description of the robber that Ms. Woodworth provided to the police is consistent with appellant's actual size and appearance. -7- The weight and reliability of the eyewitness testimony is a proper issue for jury determination. State v. DeHass (1967), 10 Ohio St.2d 230 (syllabus); State v. Clark (1995), 101 Ohio App.3d 389, 409. This court has reasoned that a jury is in a better position to judge the credibility of the witnesses, by judging their demeanor and their testimony, than a reviewing court. Harrell v. Crystal (1992), 81 Ohio App.3d 515, 526. Appellant's closing argument drew the jury's attention to the issues raised by the eyewitness identifications made by the victims. T. at 377-386. We have stated that where the evidence is conflicting, it is the function of the jury to weigh the evidence and to determine where the truth lies. Harrell, 81 Ohio App.3d at 526. The jury, in convicting appellant, clearly gave credence to the identifications made by three separate eyewitnesses. Having reviewed the entire record, having weighed the evidence, and having considered the conflicts in the evidence, we do not find that a manifest miscarriage of justice resulted such that judgment should be reversed and a new trial ordered. Martin, 20 Ohio App.3d at 175. We do not find this to be the exceptional case in which the evidence weighs heavily against the conviction. Id. Appellant's first assignment of error is overruled. II. SECOND ASSIGNMENT OF ERROR Appellant's second assignment of error is that: THE TRIAL COURT ERRED BY ALLOWING INTO EVI- DENCE IRRELEVANT VICTIM-IMPACT EVIDENCE. -8- Appellant contends that a portion of Mr. Reed's testimony constituted inadmissible and irrelevant victim-impact evidence. App. Brief at 17. A trial court enjoys broad discretion in admitting evidence. State v. Long (1978), 53 Ohio St. 2d 91, 98. A trial court's evidentiary rulings will not be reversed unless that discretion has clearly been abused. Id. Not only must there be an abuse of discretion, but such abuse must amount to prejudicial error. State v. Lundy (1987), 41 Ohio App.3d 163, 169. The Ohio Rules of Evidence state that even evidence that is otherwise relevant is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice. Evid.R. 403(A). Here, the court made no ruling on the admissibility of that portion of Mr. Reed's testimony that appellant now characterizes as victim-impact evidence because there was no objection at trial to that testimony. The contested portion of his testimony consisted of a mere aside during the teenaged victim's account of the armed robbery. T. at 92. Q. What effect has the robbery had on you personally? A. I've been staying up late. I can't get to sleep at a normal time. Q. You can't get to sleep at a normal time? A. No, I've been paranoid. T. at 92. Appellant attempts to characterize this brief aside as prohibited victim-impact testimony. There is no objection in the record to this testimony. -9- Failure to object to an error in a criminal trial precludes the issue from being raised on appeal unless the issue rises to the level of plain error. State v. Kulp (1996), 110 Ohio App.3d 144, 146. Plain error is an obvious error or defect in the trial below, affecting substantial rights, without which error the outcome of the trial clearly would have been otherwise. Id. at 146-147. Absent plain error, issues which are not addressed to the trial court at the time at which they could be remedied generally will not be reviewed. State v. Carrion (1992), 84 Ohio App.3d 27, 29. The Supreme Court of Ohio has cautioned appellate courts that notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Carrion, 84 Ohio App.3d at 30 (quoting Long, 53 Ohio St.2d at 91). In determining whether plain error occurred in the trial court, the reviewing court must examine the error asserted by the appellant in light of all the evidence properly admitted at trial to determine whether the error affected the outcome of the trial. State v. Adams (1995), 106 Ohio App.3d 139, 144. The Supreme Court of the United States has indicated that the Eighth Amendment erects no per se bar to victim-impact evidence. State v. Fautenberry (1995), 72 Ohio St.3d 435, 438-439, cert. denied, 116 S.Ct. 534 (quoting Payne v. Tennessee (1991), 501 U.S. 808, 827). The Payne court ruled that [a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as -10- to whether or not the death penalty should be imposed. Id. True victim-impact evidence shall be considered by the trial court prior to imposing sentence upon a defendant, not during the guilt phase of the trial. Fautenberry, 72 Ohio St.3d at 440. Evidence relat- ing to facts and circumstances surrounding the offense are clearly admissible during the guilt phase, however. Id. See, also, State v. Loza (1994), 71 Ohio St.3d 61, cert. denied, 115 S.Ct. 1983 (victim-impact evidence may be admissible during guilt phase). A court may order the preparation of a victim-impact statement prior to sentencing in cases where a person is guilty of a felony that caused physical harm to the victim or threatened or risked causing such harm. R.C. 2947.051(A). The victim-impact statement shall identify any physical injury suffered by the victim as a result of the offense and the seriousness and permanence of the injury, identify any change in the victim's personal welfare or familial relationships as a result of the offense and any psycho- logical impact experienced by the victim or the victim's family as a result of the offense. R.C. 2947.051(B). A solitary statement by a victim, in the middle of his testimony on other matters, that he was having trouble falling asleep as a result of the robbery, does not fit the statutory conception of victim-impact testimony. We cannot accept appellant's characterization of Mr. Reed's testimony as victim-impact testimony. Even were we to accept this characterization, an erroneous admission of victim-impact evidence does not necessarily constitute reversible error. Fautenberry, 72 Ohio St.3d at 439. There must -11- be some indication that the trier of fact was influenced by or considered the victim-impact evidence. Id. To show prejudice, there must be some reasonable probability that the outcome would have been different. State v. Reynolds (1998), 80 Ohio St.3d 670, 679. See, also, State v. Soke (1995), 105 Ohio App.3d 226, 253 (no prejudice from single, brief reference). The evidence in the record does not show a reasonable probability that the outcome of appellant's trial would have been different had not Mr. Reed testified that he was having trouble falling asleep as a result of the robbery. The more reasonable probability in our view is that the jury was persuaded, in reaching its verdict, by the three witnesses who identified appellant as the armed robber. Where there is no reasonable possibility that allegedly unlawful testimony contributed to a conviction, the error is harmless and there will not be grounds for a reversal. Mays, 108 Ohio App.3d at 616-617. Having found that the evidence in the record does not show a reasonable probability that the outcome of appellant's trial would have been different absent the posited error, we cannot find the existence of plain error. Kulp, 110 Ohio App.3d at 146-147; Adams, 106 Ohio App.3d at 144. Even assuming arguendo an erroneous ad- mission of victim-impact evidence, we find there was no abuse of discretion that amounted to prejudicial error in the admission of Mr. Reed's disputed testimony. Appellant's second assignment of error is overruled. -12- III. THIRD ASSIGNMENT OF ERROR Appellant's third assignment of error is that: THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL BASED UPON THE STATE'S FAILURE TO PROVIDE EXCULPATORY EVIDENCE TO THE APPELLANT PRIOR TO THE COMMENCEMENT OF TRIAL. Appellant argues that exculpatory evidence known by the prosecutor was not made available to appellant until the trial was well underway and that the prosecutor's inadvertent failure to disclose this evidence earlier should have been grounds for a mistrial. Appellant states that the description of the armed man who committed the White Castle robbery was similar to the descrip- tion of the armed man who committed the robbery of the Broadway Donut Shop. Appellant then argues that because the victims of the White Castle robbery were unable to identify appellant as the robber, this is somehow exculpatory of appellant's involvement in the Broadway Donut robbery. The Supreme Court of the United States has held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, (1963) 373 US 83, 87. See, also, State v. Johnston (1988), 39 Ohio St.3d 48, 60. The State of Ohio requires a prosecuting attorney, upon motion of the defendant before trial, to disclose to the defendant all known evidence favorable to the defendant and material to either guilt or punishment. Crim.R. 16(B)(1)(f). The Brady court spoke of -13- such evidence as that which would tend to exculpate the defen- dant. Brady, 373 US at 88. The violation of the duty to disclose evidence which may be exculpatory is not grounds for reversal, unless the defendant is denied a fair trial. State v. Perry (1992), 80 Ohio App.3d 78, 85. Suppression by the prosecution of exculpatory evidence vio- ates due process only where that evidence creates a reasonable doubt as to the guilt of the accused. Wagner v. Overberg (6th Cir. 1977), 560 F.2d 735, 739. The mere possibility that the evidence might have helped the defense does not establish materiality. Wagner, 560 F.2d at 741. The Supreme Court of Ohio has stated clearly that the key issue in a case where exculpatory evidence is alleged to have been withheld is whether the evidence is material. Johnston, 39 Ohio St.3d at 60. The court noted that such evidence will be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceed- ing would have been different. Id. at 61 (quoting United States v. Bagley(1985), 473 U.S. 667, 682). See, also, State v. Apanovitch (1995), 107 Ohio App.3d 82, 92. The Bagley court noted that a reasonable probability is one sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682. See, also, Apanovitch, 107 Ohio App.3d at 92. Appellant was not denied the use of the evidence of the White Castle robbery. Although disclosure did not occur prior to trial, the evidence at issue was used by appellant at trial. Appellant -14- attempted to persuade the jury through testimony, and at closing argument, that other named individuals might have committed these crimes. An appellate court is forbidden from probing into the viability of alternative theories of innocence. State v. Jenks (1991), 61 Ohio St.3d 259, 283. The Ohio Supreme Court has made it clear that [a]n appellate court will no longer conduct a review of the evidence to determine if the state's theory of guilt is irreconcilable with any reasonable theory of innocence. Id. It is the function of the jury to weigh the evidence, and to determine where the truth lies. Harrell, 81 Ohio App.3d at 526. The issue for this court, again, is whether a more timely disclosure would have led to a reasonable probability that the result of the proceeding would have been different. Johnston, 39 Ohio St.3d at 61; Apanovitch, 107 Ohio App.3d at 92. Appellant might have been able to more fully exploit this issue at trial had the disclosure come earlier, yet appellant was able to utilize the White Castle information to raise the possibility that another person may have committed these robberies. Because appellant was able to put evidence supporting his theory before the jury, we need not speculate, and we cannot find, that there was a reasonable probability that the result of the trial would have been different if the disclosure had been made earlier. Having heard the evidence in question, and having heard three witnesses identify appellant as the robber, the jury found the defendant guilty beyond a reasonable doubt. We find that the -15- appellant was not denied a fair trial, and thus we do not find grounds for a reversal in the violation of the duty to disclose prior to trial. Perry, 80 Ohio App.3d at 85. Appellant's third assignment of error is overruled. Having found all of appellant's assignments of error to be without merit, we affirm appellant's conviction in the Cuyahoga Court of Common Pleas. -16- 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 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. ANN DYKE, P.J. and MICHAEL J. CORRIGAN, 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 .