COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72863 STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND KIMBERLY WATTS : : Defendant-Appellant : : : : : DATE OF ANNOUNCEMENT : JUNE 4, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-343088 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Mark R. Majer, Esq. Assistant County Prosecutor 1200 Ontario Street - 8th Floor Cleveland, Ohio For defendant-appellant: James Draper, Esq. Public Defender Darin Thompson, Esq. Assistant Public Defender 1200 West Third St. N.W. 100 Lakeside Place Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Kimberly Watts, defendant-appellant, appeals her conviction in the Cuyahoga County Court of Common Pleas of aggravated assault in -2- violation of R.C. 2903.12. Defendant-appellant raises one error for review. This court, finding no error, affirms her conviction. On September 24, 1997, defendant-appellant was indicted by the Cuyahoga County Grand Jury for felonious assault in violation of R.C. 2903.11. After pleading not guilty and waiving a jury trial, a bench trial began on April 21, 1997 with the following facts being adduced. Defendant-appellant had been feuding with Loretta Lynn Moore over her relationship with the victim, Kavell Parry. Apparently, defendant-appellant had maintained a prior relationship with Kavell and was jealous that he was seeing Ms. Moore with whom he had two children. On August 21, 1997, defendant-appellant called both Ms. Moore and Kavell and began arguing and/or insulting them.1 When both Lynn Moore and Kavell hung up on her, defendant-appellant called back and said she was on her way over. Ms. Lynn called the police and then called Kavell who said he was coming over. A few moments later, defendant-appellant appeared at Ms. Moore's house with two friends and began screaming and challenging Ms. Moore to a fight. Lynn Moore's mother went out to the gate. She testified that one of the girls, Lisa Gordon, had a knife in her hand and attempted to trespass on the property.2 When Lisa Gordon swung at her, Ms. Moore's mother testified that she hit her in the head with a shovel that was lying outside. 1While Ms. Moore and Kavell Parry were at separate locations all three were on a three-way phone line. 2Lisa Gordon was named a co-defendant and pled guilty. -3- At that point, Kavell reached the house and began arguing with defendant-appellant. Defendant-appellant got back in the car with Lisa Gordon, whose head was bleeding, and left only to come back a few minutes later with more people. When Kavell approached the group, one of the girls slapped his glasses off. At that point, defendant-appellant ran up to Kavell and stabbed him in the chest. Defendant-appellant then struggled with Kavell and stabbed him in the eye. Patrol Officer Hamrick testified that he received a radio broadcast to respond to 9805 Dickens (Mrs. Moore's house) in connection with a female who was threatening the residents with a gun. According to his testimony, he arrived just as defendant- appellant and her friends were leaving the first time. The officer talked to Lynn Moore and her mother and then left to find defendant-appellant. During the period of time that the officer was gone, defendant-appellant came back to the house and stabbed Kavell. By the time the officer returned, the EMS unit was beginning to take the victim away in an ambulance. Again, the officer questioned witnesses. At this time, defendant-appellant, and others, drove past the scene. When the witnesses identified them, the police detained and questioned defendant-appellant. Defendant-appellant stated that she stabbed the victim in self defense. Finally, the officers retrieved the bloody knife that was found lying in the street in front of Ms. Moore's house. The defense called defendant-appellant to the stand and several witnesses who were at the scene with defendant-appellant. -4- Their testimony was that she stabbed the victim only after he approached her and struck her in the face. After the presentation of the parties' cases, defense counsel moved for a Crim.R. 29 motion for acquittal. The trial court denied said motion and subsequently found defendant-appellant guilty of the lesser included offense of aggravated assault. Defendant-appellant was sentenced to eighteen (18) months in the Lorain Correctional Institution. Defendant-appellant timely appeals. Defendant-appellant's sole assignment of error states: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN VIOLATING CRIM.R. 16(B)(1)(G) BY DENYING THE DEFENSE MOTION FOR AN IN CAMERA INSPECTION OF A POLICE REPORT WITHOUT EXAMINING THE REPORT TO DETERMINE WHETHER IT CONTAINED DISCOVERABLE STATEMENTS, BY REVIEWING THE WRITTEN STATEMENT OF THE VICTIM WITHOUT DEFENSE COUNSEL PRESENT AND PARTICIPATING AND BY DENYING THE DEFENSE MOTION TO HAVE THESE DOCUMENTS MADE PART OF THE RECORD FOR APPELLATE REVIEW. Defendant-appellant argues the trial court committed prejudicial error when it violated the mandates of Crim.R. 16. Specifically,defendant-appellant argues the trial court erred by: 1) failing to inspect the police report to determine whether it contained any statements within the purview of Crim.R. 16(B)(1)(g); 2) failing to permit defense counsel to be present and participating in the in camera inspection it did conduct; and 3) failing to permit or introduce the statements into evidence thereby preventing appellate review. For the following reasons, we find the trial court did not commit reversible error. It is well established that pursuant to Evid.R. 104, the introduction of evidence at trial falls within the sound discretion -5- of the trial court. State v. Heinish (1990), 50 Ohio St.3d 231; State v. Sibert (1994), 98 Ohio App.3d 412. An abuse of discretion connotes more than an error in law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. As the Supreme Court has noted: An abuse of discretion involves far more than a difference in *** opinion. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an abuse in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion or bias. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, quoting, State v. Jenkins (1984), 15 Ohio St.3d 164, 222. Crim.R. 16(B) states in pertinent part: (g) In camera inspection of witness' statements. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of the witness and the prior statement. If the court determines inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies. If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon. Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal. -6- Before addressing the issue of whether or not the trial court adhered to the mandates of Crim.R. 16(B), we must first decide whether or not the documents at issue constitute statements putting them within the purview of Crim.R. 16. If they do not constitute statements , then Crim.R. 16(B) (1)(g) does not apply. Before a writing or recording can be considered a statement of the witness, it must be shown that either the witness prepared, signed or adopted the statement or that it minimally is a continuous, narrative made by the witness and recorded verbatim, or nearly so. State v. Johnson (1978), 62 Ohio App.2d 31; State v. Cummings (1985), 23 Ohio App.3d 40. Importantly, [n]otes made by a police officer during an interview with a witness to a crime are not subject to an in camera inspection within the intent and meaning of Crim.R. 16(B)(1)(g). State v. Washington (1978), 56 Ohio App.2d 129, at paragraph two of the syllabus. The court in Washington determined that *** [t]he word 'written' in this context does not refer to notes made by a detective talking to a witness during an investigation. The word `written' refers to a writing made by a witness or by somebody else at the witness' direction. Id. at 132-133. See, also, State v. Henry (1987), 37 Ohio App.3d 3. In this case, defendant-appellant argues the trial court denied them their rights under Crim.R. 16(B) with regards to three witnesses: Lynn Moore, her mother Loretta, and the victim, Kavell Parry. After a review of the record, we note that Ms. Lynn Moore's testimony concerning a statement was somewhat convoluted. First, -7- she testified that the officer wrote down her statement at the scene. However, she did not sign anything. Later, she testified that she went with the victim to the Justice Center and gave an official statement which was recorded but was only signed by the victim, Kavell Parry. At trial, the prosecutor stated that they were not in possession of any statement made by the witness, Lynn Moore. After reviewing the record, we can only assume that the statement the officer recorded or noted while at the scene was really his notes which pertained to the incident as described by Lynn's mother, Loretta. Accordingly, Lynn Moore did not provide the police with a statement as defined by Crim.R. 16(B)(1)(g). Loretta Moore testified that she neither signed a statement nor did the police attempt to take one from her. She merely described the officer on the scene as writing notes down on his pad concerning general investigative information such as the type of vehicle defendant-appellant was last seen in, how many individuals were with defendant-appellant and things of that nature. The testimony of Officer Hamrick corroborates that he was merely taking notes.3 Therefore, we find the trial court did not abuse its discretion in denying defense counsel's request for an in camera 3Portions of these notes were incorporated into the arrest report produced by the officer. Although the officer reviewed the arrest report prior to giving testimony, the trial court did not abuse its discretion in denying defense counsel's motion to review the report and/or have the report admitted under Evid.R. 612. See State v. Wilson (1985), 23 Ohio App.3d 111; State v. Smith (1976), 50 Ohio App.2d 185. -8- inspection concerning these two witnesses since there were no statements recorded. However, we find, after a review of the record that a statement was taken from Kavell Parry, the victim, which was in the possession of the state. After moving for an in camera inspection, the trial court reviewed the statement and held there were no inconsistencies between the victim's statement and his testimony. Counsel then objected to the fact that he was not permitted to review the statement and that the trial court would not allow him to enter it into the record. We agree with defendant-appellant in that the trial court erred in failing to permit defense counsel to inspect the statement of the victim after a timely motion for an in camera inspection was made. As stated by the Ohio Supreme Court in State v. Daniels (1982), 1 Ohio St.3d 69: Once the trial court independently determines that a producible out-of-court witness statements exists, attorneys for all parties, upon the granting of a defendant's timely motion for an in camera inspection of the statement, must be given the opportunity to: (1) inspect the statement personally; and (2) call to the court's attention any perceived inconsistencies between the testimony of the witness and the prior statement. (Crim.R. 16[B][1][g] construed and applied.) Id. at syllabus. However, contrary to defendant-appellant's assertions, the recorded statement of Kavell Parry has been included in the record enabling this court to review the trial court's determination pursuant to Crim.R. 16(B)(1)(g). After such review, we conclude -9- that there exists no material inconsistencies between the victim's testimony and his recorded statement. Therefore, even thought the trial court committed error in prohibiting defense counsel the opportunity to review the victim's statement, we find, in light of both the overwhelming evidence of guilt and the fact there exists no material inconsistencies in the statement, such error to be harmless. See State v. Birkman (1993), 86 Ohio App.3d 784; State v. Allen (1990), 69 Ohio App.3d 366. Judgment affirmed. -10- 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. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .