COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72987 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION ANDREW CONROY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : SEPTEMBER 24, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-342047 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: JOHN F. GALLAGHER, ESQ. Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 LAURA T. PALINKAS, ESQ. 11701 Tonsing Drive Cleveland, OH 44125 -2- JOHN T. PATTON, J.: A jury found defendant Andrew Conroy guilty of aggravated assault, a lesser included offense of the originally charged count of felonious assault. In this appeal, he complains the court erred by refusing to suppress the results of a photo array shown to various witnesses and by refusing to instruct the jury on reckless assault as a lesser included offense. The state's evidence showed that the victim, an off-duty city of Cleveland police officer in street clothes, joined several friends at a bar in the Flats section of Cleveland. Shortly before closing time, a group of bar patrons, two of whom were defendant and his cousin, Adam Iacona, became involved in a fight. When the fight moved into the area where the victim and his friends stood, the victim and Iacona began to wrestle, each trying to throw the other aside. At this point, Iacona ripped the victim's shirt. The victim succeeded in grabbing Iacona by the back of the shirt and pushed him away. A young woman, apparently thinking that the victim was participating in the fight, grabbed his arm and pleaded for him to stop fighting. The victim showed the young woman his badge and identified himself as a police officer. The victim then saw one of his friends lying on his back with several males crouched over him. The friend later testified that Iacona had him pinned on the ground with his finger in the friend's mouth trying to poke a hole or pull my cheek off of my face ***. The victim grabbed a can of pepper spray he had holstered on his belt and sprayed it on the males. Those males dispersed, but three other -3- males came running at him. He sprayed them as well. The bar began emptying and the victim learned his friend had been taken outside. The victim went outside, thinking that bar bouncers had ejected his friend from the bar. He briefly identified himself to a fellow officer and heard Iacona calling him a fucking nigger. He saw his friend lying on the ground in a fetal position, being kicked and punched by several males. The victim ran over to the males and again used his pepper spray to disperse them. He re- holstered his pepper spray and was tackled by Iacona. The victim fell backward, struck the back of his head against the ground and lost consciousness. The friend corroborated the victim's testimony about how the fight started. He told the jury that bouncers tossed him from the bar and, when he regained his footing, he stood with his girlfriend. He saw Iacona coming toward him, calling him a nigger lover and saying you haven't had enough, what are you, a pussy. You need help from big black guys. Iacona and some others set upon the friend and repeatedly kicked him in the back. He heard someone yell, there goes the nigger, and the males left him. He picked himself off the ground and saw Iacona tackle the victim. He then saw defendant run up to the victim and kick him very hard in the face. A Cleveland police officer testified he had been providing security at the bar on the night of the fight when he saw a number of bouncers race into the bar. The officer thought the number of people exiting the bar suggested that something was going on inside -4- that would require backup from other officers. He radioed for assistance and saw Iacona leaving the bar. Describing Iacona as aggressive, the officer told him to go home. At that point, the officer heard Iacona say, fuck you, nigger, let's go. The officer's attention was drawn by another altercation outside the bar, so he left to break up that fight. After breaking up that fight, he saw the victim on the ground, scuffling with Iacona. He then told the jury he saw defendant run across the street and kick the victim in the head. The friend's girlfriend likewise testified that after they had cleared the bar, she saw a muscular man run up to the prone victim and kick him in the head as though he were kicking a football. Although the girlfriend could not positively identify defendant, her description of his size and dress matched that of the other witnesses who positively identified defendant. Both defendant and Iacona testified. Collectively, they agreed that a fight occurred in the bar, although both denied having started the fight. Defendant told the jury that after being ejected from the bar, he saw one of his companions had been sprayed in the face with the pepper spray. He went next door to a fast food outlet for water, and returned to help his companion flush his eyes. He had been searching the crowd for Iacona when the victim, bleeding and with a ripped shirt, struck him with a hard object, knocking him to the ground. Defendant saw Iacona throw the victim to the ground. The victim still held the object, which defendant described as a canister of some sort, so defendant tried to swipe -5- it out of his hand. He admitted that he swiped with his foot and, although he claimed to aim his kick at the victim's hand, he could not say with certainty that he did not kick the victim in the face. I The first assignment of error complains the court committed plain error when it failed to grant defendant's request for a jury instruction on the lesser included offense of reckless assault. Defendant argues the evidence suggests that the victim had been the aggressor and defendant merely tried to protect himself by kicking the weapon out of the victim's hand. Although defendant asked the court to instruct the jury on the lesser included offense of reckless assault, he did so orally, not in writing. Crim.R. 30(A) requires a party requesting jury instructions to make them in writing, and a party's failure to do so constitutes a waiver of the right to complain that the court erred by refusing to give the requested instruction. See State v. Fanning (1982), 1 Ohio St.3d 19, paragraph two of the syllabus; State v. Tyler (1990), 50 Ohio St.3d 24, 36. Our review is limited to a search for plain error, meaning we cannot reverse the conviction unless but for the error the outcome of the trial would have been different. State v. Underwood (1983), 3 Ohio St.3d 12, syllabus. Reckless assault, as defined by R.C. 2903.13(B), is a lesser included offense of felonious assault, as defined by R.C. 2903.11(A)(1), so the court had the authority to give the charge. See State v. Glover (July 7, 1995), Cuyahoga App. No. 67423, -6- unreported at 6. Nevertheless, a charge on a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus. A person acts knowingly when, regardless of his purpose, he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. See R.C. 2901.22(B). A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result. See R.C. 2091.22(C). We find the result of the trial would not have been different had the court instructed the jury on reckless assault because no reasonable person would have found defendant acted recklessly when he kicked the victim in the head. Witnesses described defendant's acts in a manner that showed purposeful conduct. Defendant kicked the victim in the head, an extremely vulnerable part of the human body. They gave descriptions of the act that ranged from drop kicked in the face to it was the hardest kick I have ever seen somebody get kicked to he ran up to him, like his head was a football. The purpose to injure had been shown not only from the strength and placement of the kick, but from descriptions of defendant's and Iacona's actions outside the bar, including the racial epithets that had been shouted just prior to the kick. Defendant argues the result would have been different by pointing to notes sent by the jury that indicated they had reached -7- an impasse on a verdict. He maintains that had the court instructed on a lesser included offense of reckless assault, the jury might not have deadlocked. This argument suffers from a faulty supposition defendant assumes, without any support, that the jurors deadlocked on the lesser included offense of aggravated assault. The court sent the case to the jury on the originally indicted offense of felonious assault, as well as the lesser included offense of aggravated assault. The jury's brief impasse may well have meant that some jurors were still holding out for a conviction on felonious assault, not that they had all agreed to acquit on that charge and were struggling on the question of guilt for the lesser included offense of aggravated assault. Because defendant did not file a written request for the instruction on reckless assault, he has the burden of showing the verdict would have been otherwise had the court given that instruction. Since we cannot say with any kind of assurance that the jury would have acquitted him on the aggravated assault charge, we overrule the first assignment of error. II In his second assignment of error, defendant complains the court erred by failing to suppress the results of a photo array shown to witnesses several months after the assault occurred. Defendant's picture in the array showed him wearing a bright yellow tie-dyed shirt. All of the witnesses who testified at trial found the shirt distinctive when describing defendant to the police. Defendant claims the distinctiveness of the shirt and the fact that -8- he was the only male depicted in the array with a tie-dyed shirt made his photo unduly suggestive. We use a two-step analysis to determine whether the court erred in allowing the identification testimony from the photo array. We look to see whether defendant has shown that the identification procedure used was unduly suggestive. If the identification procedure was unduly suggestive, we consider whether the procedure was so unduly suggestive as to give rise to irreparable mistaken identification. Manson v. Braithwaite (1977), 432 U.S. 98, 114. In other words, the identification can still be admissible so long as the testimony was reliable, given the totality of the circumstances. The primary evil to be avoided is `a very substantial likelihood of irreparable misidentification.' Neil v. Biggers (1972), 409 U.S. 188, 198, quoting Simmons v. United States (1968), 390 U.S. 377, 384. In State v. Wills (June 5, 1997), Cuyahoga App. No. 70988, unreported at 5, we stated: "When deciding motions to suppress photographic identification procedures, the courts must determine whether the photos or procedures used were '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. Suggestiveness depends on several factors, including the size of the array, its manner of presentation, and its contents. Reese v. Fulcomer (C.A.3, 1991), 946 F.2d 247, 260. Stated otherwise, the test is 'whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit.' Jarrett v. Headley (C.A.2, -9- 1986), 802 F.2d 34, 41 (brackets in original)." We find the court did not err by denying the motion to suppress on grounds of suggestiveness. Photographic displays have been held not unduly suggestive even when certain characteristics of the defendant or his photograph are set apart from others. See, e.g., United States v. Dowling (C.A.3, 1988), 855 F.2d 114, 117 (fact that defendant was only person in display of six who wore a red tee-shirt was not suggestive when other men also wore colored tee-shirts and "were comparable in dress and appearance"), affirmed (1990), 493 U.S. 342; United States v. Maguire (C.A.1, 1990), 918 F.2d 254, 265 (reviewing recent cases rejecting argument of impermissible subjectivity in photo spreads because only the defendant was wearing an earring; or had beard and braids; or had dreadlocks and hair covering). Both defendant and Iacona were shown in the eight picture array. The photographs depicted males who were in the same age group and had roughly similar builds. While only defendant wore a tie-dyed shirt in the array, that fact itself did make the array unduly suggestive. The shirt was so distinctive that the police would not likely find any photos of similarly sized and aged males wearing a similar shirt. Because of the difficulty attending to finding perfect matches, we do not require the police to hunt down persons who match an accused's distinctive physical features, and we see no reason to do so with distinctive clothing. Even were we to find the array suggestive because of the tie- dyed shirt, we would find defendant failed to show that his -10- identification, viewed under the totality of the circumstances, was inherently unreliable. The shirt's distinctiveness itself tended to support the strength of the identification given to the police. All witnesses thought the tie-dyed shirt stood out, and they gave very similar physical descriptions of defendant's size, dress, haircut and facial hair. The length of the fights both inside and outside the bar gave the witnesses more than adequate time in which to identify defendant. In short, there was simply no reason for the court to think that any one witness failed to make a proper identification. The 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. 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. TERRENCE O'DONNELL, P.J. KENNETH A. ROCCO, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .