COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72015 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : JULIUS POTTER : OPINION : Defendant-Appellant : Date of Announcement of Decision: APRIL 16, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-341905 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES NICHOLAS K. THOMAS, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue DIANE SMILANICK, Assistant Cleveland, Ohio 44113-1125 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Julius Potter appeals from his convictions following a jury trial for one count of aggravated burglary (R.C. 2911.11); five counts of aggravated robbery (R.C. 2911.01); and one count of felonious assault (R.C. 2903.11), all with firearm specifications. Defendant claims the trial court erred in failing to suppress a pre-trial identification; in allowing irrelevant and highly prejudicial evidence; and in denying defendant a separate trial from three co-defendants. Defendant also contends the verdict was against the manifest weight of the evidence. We find no error and affirm. This case arose out of an incident that occurred on July 9, 1996 at the home of Mrs. Margaret Sims, 10730 Columbia Road, Cleveland, Ohio. On that date, four males burglarized, robbed and kidnapped various people in Mrs. Sims' house and then fled. One woman was also raped. The four males were arrested, indicted and went to trial together on the various criminal charges. Zebbie Robertson testified that he was living with Mrs. Sims in the house where the incident occurred on July 9, 1996. He was in the living room when the front door was kicked open and four masked males with guns rushed in and yelled that they wanted money. One of the intruders put a gun to Robertson's head and placed him face down on the floor. He was then blindfolded. Robertson lost $80.00 in the robbery. Edward Sims and his family also lived with his mother, Mrs. Sims. Sims and his girlfriend, Lakeithta Small, were out together -3- on the night of July 8, 1996, and arrived back home around midnight. As Sims walked through the doorway of his house, an intruder put a gun in his face and yelled at him to get down on the floor. He was then told to go upstairs with the intruder to the attic where he was told to get on the attic floor and not to look up. The attic light was on. The intruder asked Sims where the money was and Sims told him that he did not have any money. The intruder then began to beat Sims in the head with his gun. After the intruders left the attic, Sims jumped out of the attic window and went to a friend's house to call 911. After the intrusion, $1,000 was missing from a box Sims' kept near his bed in the attic. Sims testified he recognized the voice of one of the intruders to be that of Charles Wilson whom he identified in court. Sims stated that he knew Wilson from the neighborhood and had heard his voice several times previously. Sims spoke to the police on July 9, 1996, and gave them the names of Dontez White and Wilson as suspects. Sims also knew White from the neighborhood. Quashawena Sims also lived with her mother at the house. She also came home around midnight and went to her bedroom on the second floor. She was speaking on the telephone when a male intruder came into the bedroom with a .9mm silver gun. He told her to get off the telephone and then disconnected the telephone. Quashawena's sister, Janice, and her nephew, Deonte, were in the bedroom with her at the time. Quashawena identified Melvin Thompson in court as the first male intruder who had taken her to -4- the bedroom. She also identified a second male intruder with a shotgun as Dontez White from a previous photo ID. Mrs. Margaret Sims, the mother, testified that she owned the house where the incident took place. She was in her bedroom on July 9, 1996, after midnight, when she heard someone coming up the stairs. A male intruder then put a gun to her face and told her to lay down. He asked for money and then took her to Quashawena's bedroom and told her to lay down on the bed with the children. Other male intruders came into the bedroom brandishing guns and shotguns. Later, Mrs. Sims heard Quashawena yelling that the intruders were gone so she went to a neighbor's house to call 911 because her own telephone wires had been cut. She observed that her house was in disarray, the front door was broken and about $1,900 of her money was missing. Charlie Cooper testified that he lives in the Hough area of Cleveland where the incident occurred. He knew defendant Julius Potter because they grew up together. Cooper stated that he had a conversation with defendant Potter about two or three days prior to the incident. During this conversation, Potter told him that some niggers is out on some house shit ; that these niggers want to rob you, but it ain't nothing because you my dude ; that some dudes are talking about robbing something. According to Cooper, defendant further stated that others had better be careful and watch their backs. Cooper identified defendant Potter in court as the person he had the conversation with. -5- Lakeithta Small testified she was Edward Sims' girlfriend. Small went with Sims to his mother's house about midnight. She testified that as Sims went to put his key into the front door of the house, defendant put a pistol to Sims' face. Small testified that she clearly saw defendant when she came into the house. She saw Sims' father tied up on the floor of the living room and saw intruders beating him. Small also had a gun put to her face by one of the four intruders. Small had never seen any of the intruders before. Small was taken upstairs to Quashawena's bedroom by one of the intruders, while the three other intruders took Sims up to his bedroom in the attic. Small was sitting on the bed in the bedroom and could clearly see into the hallway because the hallway and attic lights were on. Small then heard one of the intruders say, They owe us $10,000 and if we don't get the money they are going to kill us. Two of the other intruders came down from the attic and one yelled at Small, Bitch, where is your Cavalier, several times, thinking that she was another person. This intruder had on a heavy coat and hood, but Small could see his face and identified him as defendant Potter. She testified that defendant did not have a mask on during the robbery, that she could see his face because he was wearing a hood that did not cover his face. Small also identified White as a gunman and the intruder who kept calling her a liar who was standing behind defendant in the bedroom doorway. -6- Small identified Thompson as the other armed intruder who came down from the attic into the bedroom. He did not have a mask or hood on. Small testified that she was taken to another bedroom by Thompson where he raped her. Small went to Mt. Sinai Hospital to be treated and spoke to the police later that night. The next day, she received information from friends that the intruders were in the Hough area. She then went to that area with her friend, Cloudy Meeks, to see if she could identify any of them. Small saw someone walking around Hough who had been in the house during the incident. She found out from Meeks that this person was Ju, otherwise known as defendant Julius Potter. Small then went to the Sex Crimes Unit to identify photos of suspects and identified Thompson as the person who raped her and also identified White as being in the house. Small stated that Det. Essie Borders-Howard did not tell her who to pick out in the photo spread. Small stated that the intruders took about $500 of her money from a shoe box in the attic. Det. Howard testified that she works for the Cleveland Police Department, Sex Crimes Unit. Det. Howard worked on the present case which involved the four named suspects. She spoke to witnesses on the case and gathered new information from them. Howard attempted to conduct a lineup of the suspects, but did not have enough people with which to conduct one. Instead, she did a photo spread sheet of the four suspects who were under arrest at the time. The photo spread sheet consisted of fifteen photos, -7- including the four suspects. (PX 6). Lakeithta Small, Edward Sims, Mrs. Sims and Quashawena all viewed the photo spread sheet prepared by Howard. Each witness was separated when they viewed the spread. Det. Howard stated that Lakeithta Small identified White as the gunman who entered the house and Thompson as the one who raped her. Quashawena identified White and Thompson as two of the intruders. Sims identified White as the gunman who entered the house and beat him. He also identified Wilson as being involved. Sims later informed Howard that defendant Potter was involved in the incident. Howard also took oral statements from Sims, Robertson and Small. After Sims informed Det. Howard of defendant's address, the detective went to defendant Potter's house and arrested him. Howard again contacted Lakeithta Small to come to her office at the City Jail to identify another suspect. As Small waited in the waiting room, Howard began questioning defendant. During the questioning, defendant had a panic attack. Howard then took defendant back to City Jail for the medical unit to help him. As they went through the waiting room where Small was sitting, Small saw defendant and stated, That's him. That's him. That's the one that was at the house. Det. Howard denied telling Small that he was one of the suspects. Small recognized defendant as the person in the house that asked her about the Cavalier. The State rested its case and the defense made a Crim.R. 29 motion which was overruled. Certain counts were dismissed. -8- Defendant and his co-defendants asserted their Fifth Amendment privilege against self-incrimination and chose not to testify. Although defendant's assignments of error are identically stated, they argue four separate issues, which we will address in the order presented. I. APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. Defendant argues that the trial court erred in failing to grant his motion to suppress the pretrial identification. We find no merit to this assignment of error. Reliability is the basis for determining whether identification evidence is admissible. Manson v. Brathwaite (1977), 432 U.S. 98, 114. The United States Supreme Court has set forth five factors to be considered in evaluating reliability as follows: *** [T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. *** Neil v. Biggers (1972), 409 U.S. 188, 199-200, see, also, State v. Jells(1990), 53 Ohio St.3d 22, 27, cert. denied (1991), 112 S.Ct. 1020. Before determining reliability pursuant to Neil v. Biggers, supra, the court must first determine if the identification procedures used were impermissibly suggestive. State v. Merrill -9- (1984), 22 Ohio App.3d 119, 122. The defendant has the burden to show the court that the identification procedures were unnecessarily suggestive. State v. Sims (1984), 13 Ohio App.3d 287, 288. Moreover, even suggestive identification procedures do not preclude admission where the identification itself is determined to be reliable. State v. Moody (1978), 55 Ohio St.2d 64, 67; State v. Bogan (April 25, 1991), Cuyahoga App. No. 58271, unreported. The focus, under the totality of the circumstances approach, is upon the reliability of the identification, not the identification procedures. State v. Lott (1990), 51 Ohio St.3d 160, 175, 555 N.E.2d 293, 308; Manson v. Brathwaite (1977), 432 U.S. 98, 114. ( *** reliability is the linchpin in determining the admissibility of identification testimony ***. ) *** State v. Jells, supra at 27. (Emphasis in original.) In the case sub judice, defendant can demonstrate neither suggestive identificationprocedures nor unreliable identification. State v. Nelson (July 3, 1991), Cuyahoga App. No. 58813, unreported; State v. Jones (July 2, 1992), Cuyahoga App. No. 60106, unreported. Det. Howard initially scheduled a lineup for the identification but found that she did not have enough prisoners in the jail to do the lineup. Howard decided to do a photo spread sheet. She constructed the photo spread sheet which consisted of fifteen photographs that depicted Wilson, No. 6; Larry Baker, No. 12; White, No. 14; and Thompson, No. 15. The photo spread sheet was shown to each victim, one at a time. -10- Lakeithta Small identified White as the intruder that entered the home, and Thompson as the intruder with a gun that raped her. Edward Sims identified White and Wilson as intruders with guns that entered the home. Quashawena identified White and Thompson as intruders with a gun that entered the home. A perusal of the photographs demonstrates that each of the males depicted in the photo spread sheet is comparable to the general description of the intruders given by the victims. The testimony of Small and the other victims established that the photo spread sheet identification was made objectively and without suggestion or influence by Det. Howard. Det. Howard contacted Small to come in to her office to view a lineup. Before Small arrived, Howard began questioning defendant when he had a panic attack. As Howard passed through the waiting room of the Sex Crimes Unit with defendant on the way to the City Jail, Small was sitting in the waiting room. Without any prompting from Det. Howard, Small recognized defendant and stated, That's him. That's him. That's the one that was at the house. Small's identification of defendant in the waiting area of the Sex Crimes Unit was clearly inadvertent. Small testified that she could not get into the door of the Sex Crimes Unit without Howard coming to let her in. However, she testified that Det. Howard did not let her. That she let herself in when somebody else came out of the door and she then sat down in the waiting room. Defendant argues that Small only identified him because she saw him in the Hough area and Meeks told her his name. Small knew -11- immediately when she saw defendant in the waiting room that this was one of the intruders at the Sims' house on the night in question. The only information that Small obtained from Meeks was defendant's name after she recognized him on the street. Small testified that defendant did not have a mask on during the robbery. That she could see his face because he was merely wearing a hood that was not covering his face. She testified that she first observed defendant as she walked through the front door of the house. In her testimony, Small referred to defendant by name stating: *** and Julius came to the door and pulled a pistol out and had it to his face, and they pulled us in the door. She testified that she later saw defendant in the bedroom when he asked her several times about the Cavalier. Small also identified defendant in court. Even though Small did not know the names of her attackers, she was nevertheless able to identify defendant with certainty. A review of the totality of the circumstances surrounding the victim's identification and subsequent in-court identification of defendant makes said identification reliable and therefore properly put before the trier of fact. Under Biggers, supra, the reliability of an identification depends on the opportunity of the witness to view the criminal during the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the witness's level of certainty at the confrontation, and the length of time between the crime and the -12- confrontation. Based on these standards, Small's identification was reliable and properly admitted. We find no substantial likelihood of any misidentification of defendant at the scene of the crime. Assignment of Error I is overruled. II. THE APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. Defendant argues that he was denied a fair trial because of the introduction of evidence concerning gangs and gang affiliation. Defendant argues that introducing evidence of other bad acts is error. Evid.R. 404(B) reads as follows: (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Court held in State v. Lytle (1976), 48 Ohio St.2d 391, that error in the admission of other act testimony is harmless when there is no reasonable possibility that the testimony contributed to the accused's conviction. The questions on gangs and gang affiliation were fleeting and inconsequential. The trial court limited this inquiry to a small number of questions. The evidence was overwhelming as to defendant's guilt and even if the admission of the disputed evidence was error, such evidence did not contribute to the conviction and did not constitute plain error. Thus, it was harmless. -13- Assignment of Error II is overruled. III. THE APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. Defendant argues that his motion for a separate trial should have been granted and he should have had a trial separate from his three co-defendants. Defendant asserts that he was manifestly prejudiced by the joint trial. The State indicted the four intruders together and requested that they be tried together. Defendant's counsel made a motion for a separate trial. The trial court denied the motion and the four defendants were tried together. Crim.R. 8(B) states: (B) Joinder of defendants. Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, or in the same course of criminal conduct. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. Pursuant to R.C. 2945.13, multiple defendants charged in the same indictment shall be tried jointly. This section states:: When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefore by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately. Joinder of defendants is the rule rather than the exception and the burden is on the defendant to show any prejudice. Under R.C. 2945.13, two jointly indicted persons shall be tried jointly -14- unless the prosecutor or one of the defendants applies for separate trials and shows good cause. The burden of establishing good cause is on the defendant upon a request for a separate trial, and the granting or denial of such separate trial rests within the sound discretion of the court. State v. Dingus (1970), 26 Ohio App.2d 131; State v. Perod (1968), 15 Ohio App.2d 115. Defendant has not demonstrated good cause for the separate trial nor has he demonstrated any prejudice from the denial of his motion. The trial court adequately instructed the jury relating to multiple defendants and instructed the jury that they had to decide separately the question of the guilt or innocence of each of the defendants. A presumption always exists that the jury has followed the instructions given to it by the trial court. Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph 4 of the syllabus. Furthermore, defendant was positively identified by one of the victims as an intruder on the night of the robbery. Defendant has failed to demonstrate that he suffered any prejudice as a result of the joint trial. The trial court did not abuse its discretion in denial of separate trials, as this decision was within its sound discretion. The evidence was overwhelming against defendant and even if the trial court committed error, such error was harmless. Assignment of Error III is overruled. -15- IV. THE APPELLANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION WERE VIOLATED. Defendant argues that the State failed to present sufficient evidence beyond a reasonable doubt to prove the charges against defendant and that defendant's conviction is against the manifest weight of the evidence. We find no merit to these contentions. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks(1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) -16- Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the factfinder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the -17- evidence weighs heavily against the conviction. ). We find the State presented sufficient evidence to establish defendant's guilt beyond a reasonable doubt. Defendant was reliably identified by Small as one of the intruders. The intruders kicked open the door and came in the house flashing guns. Aggravated robbery was committed when money was taken from the victims by force. The victims were kidnapped by the intruders as they were held against their will. Two of the victims were feloniously assaulted. Considering the evidence presented at trial and after viewing the probative evidence in a light most favorable to the prosecution, any reasonable trier of fact could have found all the essential elements of aggravated burglary, aggravated robbery, kidnapping and felonious assault, along with the firearm specifications established beyond a reasonable doubt. It is clear that the State presented substantial evidence of sufficient probative value and that the jury did not lose its way. Nor did it create a manifest miscarriage of justice. This evidence did not weigh heavily against a conviction and any discrepancies in the witnesses' testimony were to be resolved by the jury. Assignment of Error IV is overruled. Judgment affirmed. -18- 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. DYKE, J., and ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING 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 .