COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72986 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : : OPINION GEORGE GAMBOA : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 17, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR- 342919 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor A. STEPHEN DEVER Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: KEVIN M. CAFFERKEY 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- JUDGE TERRENCE O'DONNELL: George Gamboa appeals from his convictions for the aggravated murder and kidnaping of Carlos Bruerga, and for conspiracy to commit aggravated murder, arguing that comments made to the jury by an unknown passerby during a jury view violated his right to due process of law, that his convictions were against the manifest weight of the evidence and were not supported by sufficient evidence, and that the court erred by admitting hearsay evidence. For the reasons which follow, we find no reversible error and therefore affirm the judgment of the trial court. This case arose from Gamboa's involvement in a Cleveland cocaine-trafficking operation which operated as follows: Bruerga, who lived in an apartment in New York City which Ralph Delatorre arranged for, supplied twenty to thirty kilograms of cocaine per month to Delatorre in Cleveland at a cost of $16,000 to $20,000 per kilogram. Delatorre would then resell the cocaine to either Don Roberts for distribution on the east side of Cleveland, or Nemesio Camargo for distribution on the west side of Cleveland. When Delatorre took a vacation, he permitted Camargo to deal with Bruerga and he became upset as a result of a $10,000 cash shortage on a payment he received from Camargo. Bruerga not only called Camargo, but also informed Delatorre of the shortage. At the time, Delatorre himself owed Bruerga about $140,000; rather than pay the money, Camargo proposed and Delatorre agreed to kill Bruerga. However, Bruerga had returned to New York and both feared he may return to Cleveland with force to collect his debt. -3- In furtherance of their plan, Camargo hired Matthew Zanosker, known as the Captain and a leader in the Cleveland Hell's Angels, and Delatorre and Camargo each agreed to pay him $10,000 to do the killing. Bruerga belonged to the Santeria religion, a spiritual religion which has African roots and culturally combines Youroba and Cuban religion with Catholic symbols. As godfather in the religion, Gamboa performed ceremonies to invoke spirits to advise members in making important decisions which involved rolling coconut shells and then interpreting them. Accordingly, Delatorre enlisted Gamboa and agreed to pay $10,000 if Gamboa could lure Bruerga to Cleveland. Delatorre testified that he and Gamboa traveled to New York City to lure Bruerga to return to Cleveland and that as a result of Gamboa's assurances which came after rolling and reading the coconut shells, Bruerga agreed to return to Cleveland. Prior to the killing, Delatorre and Camargo met with Gamboa at Camargo's North Ridgeville home. Camargo testified that Gamboa decided at the last minute to stay with Camargo's wife instead of joining them to meet and kill Bruerga. Delatorre met Bruerga and his girlfriend, Bertha Fonseca, at Don's Lighthouse restaurant, located at the west end of the shoreway in Cleveland. Although present, Camargo remained outside the restaurant due to the disagreement he had with Bruerga. After leaving Don's Lighthouse, the party traveled to Hooples Bar in the Flats area of Cleveland. Upon leaving Hooples, Zanosker and Delatorre pretended to designate a new drop-off point for drug -4- exchanges, and Bruerga and Fonseca followed in their car. Suddenly, en route on Carter Road, Zanosker stopped his vehicle, Delatorre got out and pretended to urinate while Zanosker walked to Bruerga's vehicle and allegedly pointed to a building where he claimed he worked. As Bruerga turned to look at it, Zanosker shot him in the head at close range with a high caliber weapon using glassier exploding bullets and then fired two more shots striking Fonseca in the head twice. Zanosker and Delatorre then pulled Bruerga's dead body from the car onto Carter Road, and Delatorre removed an address book from his pocket and, in so doing, left one of his gloves behind. Zanosker then got into the car with Fonseca, drove over Bruerga's body, and then drove to West 14th Street and Abbey Avenue, where he dumped Fonseca's body a few miles from the scene of the killings. Zanosker then drove the car to a residence on Western Avenue and hid the vehicle in a garage. Delatorre then drove to Camargo's North Ridgeville home, and after telling Gamboa about the evening, paid him $10,000 for his involvement. In 1994, with federal drug trafficking charges pending against him, Delatorre entered a reduced plea in exchange for his testimony implicating Camargo. While in prison on the charges, Camargo agreed to testify against Delatorre, Zanosker, and Gamboa regarding the Bruerga murder as part of a plea agreement. As a result, the grand jury indicted Gamboa on two counts of kidnaping of Bruerga and Fonseca, and one count of conspiracy to commit aggravated murder. -5- During Gamboa's trial, the court permitted a jury view of the Flats area of Cleveland where police found the bodies of the victims. During that jury view, an unknown passing motorist yelled comments to the jury. Upon learning about the incident, the court voir dired the jury, repeatedly admonished them to disregard the statements, and instructed them that they could not consider the statements as evidence. At trial, the state presented testimony of Delatorre and Camargo, Valentino Lassiter, a professor at John Carroll University and an expert on the Santeria religion, the coroner, trace evidence testing, and police officers who conducted the investigation. At the close of the state's case, Gamboa moved for acquittal pursuant to Crim.R. 29, and the court denied the motion. Gamboa presented no evidence during his case in chief, and following the court's charge and deliberation, the jury returned guilty verdicts on the charges of murder and kidnaping of Bruerga and a guilty verdict on the charge of conspiracy to commit murder. The jury returned not guilty verdicts on the charges of murder and kidnaping of Fonseca. Gamboa now appeals from those convictions and presents four assignments of error for our review, the first of which states: I. THE DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN MEMBERS OF THE JURY WERE SUBJECTED TO BIASED COMMENTARY FROM THE GENERAL PUBLIC ON THE JURY VIEW. Gamboa claims the comment from the passing motorist during the jury view of the murder scene prejudiced him . The state maintains -6- the remarks did not prejudice the jury, and the court properly admonished them to disregard the statements. The issue before us, then, is whether the statements prejudiced Gamboa. In Smith v. Phillips (1982), 455 U.S. 209, at 215, the Supreme Court stated that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias, and further stated that where there is an allegation of improper jury contact, the court must determine the circumstances, the impact thereof upon the juror, and whether or not [the statements were] prejudicial, in a hearing with all interested parties permitted to participate. In this case, the record reflects that the court determined the remarks did not prejudice the jurors and repeatedly admonished them to disregard those statements. At that time, Gamboa did not object to the court's actions, nor did he seek to offer any additional evidence of impropriety or evidence of specific prejudice. Thus, we conclude the trial court properly responded when informed of the remarks made to the jury by inquiring of the circumstances, the impact on the jury, and any prejudice resulting from the comments, and the court properly instructed the jury to disregard the statements. Accordingly, Gamboa's first assignment of error is without merit and is overruled. Gamboa's second and third assignments of error state: II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A), -7- OHIO RULES OF CRIMINAL PROCEDURE, AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT. III. THE DEFENDANT-APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Gamboa argues his convictions were not supported by sufficient evidence and are against the manifest weight of the evidence, urging the state failed to satisfy its burden beyond a reasonable doubt. The state maintains that Gamboa's convictions are supported by sufficient evidence and are not against the manifest weight of the evidence, contending that the evidence it presented at trial proved his guilt beyond a reasonable doubt. The issues then presented for our review are whether Gamboa's convictions are supported by sufficient evidence and whether they are against the manifest weight of the evidence. Crim.R. 29(A) provides that a conviction shall be supported by sufficient evidence, and states in relevant part: * * * The court upon motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses * * *. We recognize the difference between a challenge regarding the sufficiency of the evidence and one with respect to the manifest weight of the evidence. In State v. Taylor (1997), 78 Ohio St.3d 15, the court stated at 18: * * * the relevant inquiry is whether, after reviewing 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 -8- reasonable doubt * * *. Only after resolving the sufficiency issue and concluding the evidence is sufficient to support a conviction for an offense, does the court consider whether a conviction is against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test and stated at 175: 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. In this case, regarding Gamboa's challenge to the sufficiency of the evidence, the state assumed the burden to present evidence which, viewed in a light most favorable to the state, would be sufficient for the jury to find, beyond a reasonable doubt, all the elements of aggravated murder, kidnaping, and conspiracy. R.C. 2903.01 defines aggravated murder and provides in part: No person shall purposely, and with prior calculation and design, cause the death of another * * *. R.C. 2905.01 sets forth the elements of kidnaping and provides in part: (A) No person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize or to inflict serious physical harm on the victim or another * * * -9- R.C. 2923.01 defines conspiracy and provides in part: (A) No person, with the purpose to commit or promote or facilitate the commission of aggravated murder, murder, kidnaping, * * * shall do either of the following: (1) With another person or persons, plan or aid in planning the commission of any of the specified offenses; (2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any of the specified offenses. Here, the evidence demonstrates that Gamboa assisted Delatorre and Camargo in Bruerga's murder by helping to plan the murder, and by traveling to New York and using his status as a godfather to lure Bruerga back to Cleveland. Thus, viewed in a light most favorable to the state, the prosecution presented evidence from which a rational trier of fact could have found all the essential elements of the offenses beyond a reasonable doubt, and accordingly, this assignment of error is overruled. Regarding the issue of manifest weight, we first recognize that Gamboa presented no evidence in his case in chief. Thus , after reviewing the entire record, weighing the evidence and all reasonable inferences drawn therefrom and considering the credibility of the witnesses, we cannot say that in resolving the evidentiary conflict here, the trier of fact clearly lost its way and created a manifest miscarriage of justice. Accordingly, Gamboa's convictions are not against the manifest weight of the evidence, and this assignment of error is overruled. Gamboa's fourth assignment of error states: IV. -10- THE TRIAL COURT ERRED IN PERMITTING DETECTIVE MATUSZNY FROM TESTIFYING ABOUT OUT OF COURT STATEMENTS MADE BY FELIPE CAMARGO. Gamboa asserts the court erred in allowing Detective Matuszny to testify regarding statements made by Felipe Camargo, an alleged co-conspirator in the plan to kill Bruerga, because Camargo's statements were made years after the murder during a police interrogationand were not given in furtherance of the conspiracy. The state maintains that the court did not err in allowing the testimony, and further that any error on this basis would be harmless error. The issue before us, then, is whether the statements at issue constitute inadmissible hearsay, and if so, do they constitute harmless error. We note at the outset Evid.R. 801(D)(2)(e) provides an admission of a party opponent is not hearsay and states in relevant part: * * * A statement is not hearsay if * * * [t]he statement is offered against a party and is * * * a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. Further, Evid.R. 103(A) provides in part: Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *. In State v. Badinost (1994), 71 Ohio St.3d 449, 464, the court stated that where the court erroneously admits evidence, but there is remaining overwhelming evidence of the defendant's guilt, the error is considered harmless. -11- In this case, the testimony at issue did in fact pertain to statements Felipe Camargo made following completion of the conspiracy and not in furtherance of the conspiracy. Thus, they do not fall within the hearsay exception for statements by a co- conspirator. Our review of the record in this case, however, reveals an overwhelming amount of additional evidence which established Gamboa's guilt beyond a reasonable doubt. The erroneous admission of hearsay testimony in this case, thus constituted harmless error. Accordingly, we overrule Gamboa's fourth assignment of error and affirm the judgment of the trial court. Judgment affirmed. -12- 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 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. JAMES M. PORTER, P.J., and ANN DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .