COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72304 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DELMONT PITTS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION APRIL 9, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE CR-341453 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: DANIEL L. SCHIAU (#051937) Assistant Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT R. CLARICO (#0062067) The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant Delmont Pitts ( appellant ) appeals from his convictions for one count of aggravated burglary in violation -2- of R.C. 2911.11, two counts of aggravated robbery in violation of R.C. 2911.01 and two counts of felonious assault in violation of R.C. 2903.11. Appellant sets forth the following two assignments of error for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL WHEN IT LIMITED THE PRESENTATION OF ALIBI TESTIMONY. II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE CHARGES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Finding appellant's appeal lacks merit, the judgment of the trial court is affirmed. I. On August 6, 1996, appellant was issued a five-count indictment. Count I of the indictment charged appellant with aggravated burglary in violation of R.C. 2911.11 with a violence specification and a firearm specification. Count II charged appellant with aggravated robbery in violation of R.C. 2911.01 also with a violence specification and a firearm specification. Count III charged appellant with aggravated robbery in violation of R.C. 2911.01 with a violence specification and a firearm specification. Count IV charged appellant with felonious assault in violation of R.C. 2903.11 also with violence and firearm specifications. Count V charged appellant with felonious assault in violation of R.C. 2903.11 with a violence and firearm specification. The case proceeded to trial on January 22, 1997, and on -3- January 30, 1997, the jury found appellant guilty on all five counts of the indictment. Appellant was also found guilty of the firearm specifications charged in Counts I, II, III, IV, and V. On March 10, 1997, appellant was sentenced by the trial court as follows: It is ordered by the court that defendant, Delmont Pitts is sentenced * * * under all 5 counts; Counts 1, 2 and 3 each for term of 8 years actual to 25 years; Counts 4 and 5 each for term of 6 years actual to 15 years/3 years on gun specifications on each Count 1, 2, 3, 4 and 5 said 3 years to run concurrently to each other, to run consecutively to sentence in Count 1; Counts 1, [3] & 5 to run concurrent; Counts 2 & 4 to run concurrently with each other, but consecutively to Counts 1, 3 & 5. On April 8, 1997, appellant filed the present appeal. II. At approximately 11:45 p.m., on May 6, 1996, appellant and Antonio McCrimon broke into the home of Cheryl Adams ( Adams ) located at 1247 Carlyon Avenue, East Cleveland. At the time of the break in, Adams was sleeping in her bedroom, while her sister Rebecca Minor ( Minor ) was in another bedroom watching television with her niece Rochelle Adams. As they were watching television, Minor and Rochelle Adams heard someone kicking at the side door of the house. Both women jumped up and went to Adams' bedroom to wake her up. Rochelle Adams then proceeded to go to the third floor of the house to call 911 and her uncle, Jason Adams. As she proceeded to the third floor, Rochelle Adams grabbed two younger children who had been sleeping on the second floor and hid them in a closet. After being awoken by her sister, Rebecca Minor, Adams and -4- Minor remained in Adams' room where they heard the intruders coming up the stairs. Appellant and McCrimon entered Adams' bedroom and demanded that Adams give them the stuff , meaning money and drugs which belonged to Jason Adams. As Adams stood looking directly at both men, each carrying a weapon, they continued to demand the stuff . Adams told them she did not have the stuff but told them to go ahead and look for it. Appellant and McCrimon proceeded to kick both Adams and Minor down the second floor stairs and into the basement. Appellant and McCrimon continued to demand the stuff and then began shooting at a locked door in the basement. As McCrimon was shooting at the door, Minor was being grabbed, beaten, choked and kicked by appellant. At some point in time after the individuals had entered the basement, appellant and McCrimon became aware that the police were on their way. At this time, Rebecca Minor was able to break free and ran out of the basement. Adams remained in the basement with the two men and was subsequently shot in the abdomen. Appellant and McCrimon fled from the basement and took off running through the back yard. The police, however, were unable to apprehend the two men that evening. Officer Randy Cottingham responded to the call regarding the break-in at 1246 Carlyon, East Cleveland. As he arrived, Cottingham observed two individuals running from the scene. Cottingham also heard gun shots. After being unable to apprehend -5- the two men, Cottingham returned to 1246 Carlyon where he found Adams lying on the floor yelling that she had been shot. Adams was taken to the hospital and Cottingham inspected the house where he retrieved four 9 millimeter spent rounds. Detective John Gioitta was assigned to investigate the incident the following day. Subsequently, Gioitta contacted Adams and Rebecca Minor separately to show them a photo spread sheet. Adams was able to identify appellant as the individual who was beating Minor, but could not positively identify Antonio McCrimon. Minor identified appellant as the individual who was beating her and indicated the McCrimon was the individual who shot Adams. At trial, Pearl McCrimon, Antonio McCrimon's aunt, testified that on the night of the alleged incident, both appellant and Antonio McCrimon were at her house. Pearl McCrimon stated that both individuals had come to her house early in the day and remained there without leaving until after 1:00 a.m. when she went to bed. At the conclusion of her testimony, the defense rested. III. In his first assignment of error, appellant maintains that the trial court abused its discretion when it denied his request to present testimony of alibi witness Cynthia Pitts. Crim.R. 12.1 provides: Whenever a defendant in a criminal case proposes to offer testimony to establish an alibi on his behalf, he shall, not less than seven days before trial, file and serve upon the prosecuting attorney a notice in writing of his intention to claim alibi. The notice shall include specific information as to the place at which the defendant claims to have -6- been at the time of the alleged offense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant for the purpose of proving such alibi, unless the court determines that in the interest of justice such evidence should be admitted. The purpose of pre-trial discovery rules such as the alibi notice requirement of Crim.R. 12.1 is to insure a fair trial for both the state and the defendant. State v. Smith (1977), 50 Ohio St.2d 51, 53, citing Williams v. Florida (1970), 399 U.S. 78. In keeping with that purpose, Crim.R. 12.1 requires the defendant to file timely notice of his intent to raise an alibi defense, but it also grants the trial court the discretion to waive that requirement and to admit unfiled alibi testimony if it is in the `interest of justice' to do so. Smith, supra. If the alibi testimony does not surprise or otherwise prejudice the prosecution's case, and if the defense operated in good faith when it failed to give proper notice of an alibi defense, then the `interest of justice' may require admission of the unfiled alibi testimony. Smith, supra. In the present case, appellant's counsel sought to introduce alibi testimony of appellant's mother, Cynthia Pitts. Appellant's counsel made this motion orally to the trial court at the close of the State's case. Appellant, however, failed to notify the trial court and the State of its alibi defense within the seven-day period required by Crim.R. 12.1. To demonstrate an abuse of discretion to warrant reversal on appeal, appellant must establish the trial court committed more -7- than an error of law or judgment and that its decision was unreasonable, arbitrary or unconscionable. See Blakemore v. Blakemore(1983), 5 Ohio St.3d 217, 219. In the present case, the trial court did not abuse its discretion when it denied appellant's motion to admit alibi testimony. The record reveals that appellant knew of the testimony of Cynthia Pitts prior to the commencement of trial. Appellant, however, failed both to file notice of alibi defense within seven days of trial and failed to make an oral motion to the court prior to the commencement of trial. Thus, the trial court excluded the alibi testimony of Cynthia Pitts. Based on an oral motion made prior to trial, the record reveals that the trial court, in the interest of justice, allowed the alibi testimony of Pearl McCrimon as to the whereabouts of appellant on the evening in question. Thus, Cynthia Pitts' testimony confirming that appellant was, in fact, at Pearl McCrimon's home on the night in question, would only have been duplicative of Pearl McCrimon's testimony. Therefore, the admission of Cynthia Pitts' testimony would not have been necessary under the facts of the instant cause to insure appellant a fair trial. Accordingly, we do not find the trial court's exclusion of that alibi testimony defeated the policy of justice and fair play underlying Crim.R. 12.1 and, therefore, did not constitute and abuse of discretion. Appellant's first assignment of error is overruled. IV. In his second assignment of error, appellant contends that his -8- convictions were against the manifest weight of the evidence. In particular, appellant asserts that the identification testimony of Adams and Minor was unreliable. The standard of review in cases in which the appellant submits that a judgment is against the manifest weight of the evidence states that [a] reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, paragraph two of the syllabus. In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court 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 granted. State v. Garrow (1995), 103 Ohio App.3d 368, 370-371. In the present case, appellant was convicted of one count of aggravated burglary, two counts of aggravated robbery, and two counts of aggravated assault. R.C. 2911.11 defines aggravated burglary as follows: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied -9- portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another; (2) The offender has a deadly weapon or dangerous ordnance on or about the offender's person or under the offender's control. R.C. 2911.01 sets forth the elements of aggravated robbery as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it; (2) Have a dangerous ordnance on or about the offender's person or under the offender's control; (3) Inflict, or attempt to inflict, serious physical harm on another. R.C. 2903.11 states the elements of felonious assault as follows: (A) No person shall knowingly: (1) Cause serious physical harm to another or to another's unborn; (2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. This court concludes that substantial evidence existed upon which the trial court could have reasonably determined that all of -10- the elements of each offense have been proven beyond a reasonable doubt. Both Cheryl Adams and Rebecca Minor testified at trial that appellant was one of the two individuals who broke into Adams' house on May 6, 1996. Testimony further revealed that appellant possessed a firearm on that evening and that appellant kicked Rebecca Minor down the steps, and that appellant proceeded to choke and beat Minor. In particular, Rebecca Minor testified that appellant was stabbing her in the side with a hanger and that he was constantly beating her. When both women were questioned by Detective Gioitta, they were able to positively identify appellant as one of the individuals who had broken into Adams' house on May 6, 1996. Detective Gioitta testified that Adams was able to identify appellant immediately as the individual who was beating Rebecca Minor. Minor was also able to positively identify appellant as the individual who beat her and McCrimon as the individual who shot Adams. Based upon the foregoing, we find that there was substantial evidence upon which the trial court could reasonably conclude that all the elements of each offense were proven beyond a reasonable doubt. Accordingly, we conclude appellant's convictions for aggravated burglary, aggravated robbery and felonious assault were not against the manifest weight of the evidence. Appellant's second assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADM. J. and -12- KENNETH A. ROCCO, J. CONCUR. __________________________ LEO M. SPELLACY Judge N.B. This 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(B) 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 .