COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73047 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : VICTOR BROWN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-334139 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Louis J. Brodnik Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 -2- NAHRA, P.J.: Appellant, Victor Brown, was convicted after a bench trial of two counts of felonious assault and one count of having a weapon while under disability. The court sentenced appellant to serve a term of imprisonment of three to fifteen years for each count of felonious assault, with an additional three years on each count for the use of a firearm, and to serve a term of three years for having a weapon while under a disability; all sentences to be served concurrently. At trial, the State presented the following witnesses: Deon Rodgers, a victim of the assault who was shot twice in his back; Gloria Agosto, a victim of the assault who was riding in the car next to Rodgers; Paul Whitcomb, a security officer at St. Luke's Hospital where Rodgers was treated for his gunshot wounds; Cleveland Police Officers Dennis Lally and Robert McKay; and Cleveland Police Detective Arssie Taylor. Deon Rodgers and Gloria Agosto testified that in the afternoon on January 6, 1996, while riding in Rodgers' car, a car pulled up to the right rear of them and fired shots hitting Rodgers twice in the back. At trial, they both testified that they did not see who it was that fired the shots into their car. They both stated that appellant had confronted Rodgers on December 31, 1995 in a parking lot because appellant said Rodgers splashed water and slush on him. Rodgers testified that at that time they squared off as if to fight but did not do so. -3- Agosto and Rodgers both testified that they saw appellant at the hospital in the evening on January 6, 1996. Their testimony as to the events at the hospital after seeing appellant is contradictory. Agosto testified that appellant spit on Rodgers and that she notified a nurse and security personnel; Rodgers testified that appellant did not spit on him. Agosto's and Rodgers' trial testimony contradicted statements given to St. Luke's Hospital security personnel on the day of the shooting and statements later given to Detective Taylor. Because Agosto's and Rodgers' testimony contradicted their identification of appellant as the person who shot them, the State introduced three exhibits: Exhibit 6, Agosto's and Rogers' January 6, 1996 written statement given to St. Luke's Hospital security personnel; Exhibit 7, Agosto's January 7, 1996 written statement given to Detective Taylor; and Exhibit 5, Rodgers' January 16, 1996 written statement given to Detective Taylor. In each of these exhibits, Rodgers and Agosto identify appellant as the shooter. Paul Whitcomb testified that on January 6, 1996, while on duty at St. Luke's Hospital, Agosto was yelling and screaming and pointed out appellant as the person who shot Rodgers. Whitcomb stated that he saw appellant leaving the hospital on crutches faster than he had ever seen anyone move on crutches, that he followed appellant yelling for him to stop, and that appellant stopped only after Whitcomb drew his weapon. Whitcomb detained appellant until the Cleveland Police Department arrived. Whitcomb testified that a weapon was recovered from the automobile appellant -4- was about to enter when he was apprehended. Whitcomb also identified and authenticated Exhibit 7 as a statement written by Agosto. Officer Lally testified that he spoke with Rodgers when Rodgers first arrived at St. Luke's Hospital, that Rodgers did not identify appellant as the suspect, but did state that he was shot with a Tech 9", an automatic or semiautomatic handgun. Officer McKay testified that he arrived at St. Luke's Hospital and arrested appellant. McKay stated that he recovered a Tech 9 automatic weapon from the vehicle appellant was about to enter. He said that appellant, in response to questioning, stated that the weapon was fully automatic and asked Officer McKay if that meant he would get more time? Detective Taylor authenticated Exhibits 5 and 6 and testified that both Agosto and Rodgers gave statements identifying appellant as the shooter. Appellant testified in his own defense, stating that he did not shoot Rodgers, that on New Year's Eve Rodgers hit him and broke his leg, and that he was at the hospital on January 6, 1996, to have his cast changed. I. Appellant's first assignment of error reads: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ADMITTED INTO EVIDENCE EXHIBITS 6 AND 7. The trial court admitted Exhibit 6, Agosto's statement of January 6, 1996 to Detective Taylor, and Exhibit 7, Rodgers's -5- statement, of January 6, 1996, written by and also signed by Agosto. Appellant argues that these statements were improperly admitted because they constitute inadmissible hearsay. Evid.R. 801 provides in pertinent part: (D) Statements Which Are Not Hearsay. A statement is not hearsay if: *** (1) Prior Statement by Witness. The declarant testifies at trial or hearing and is subject to cross- examination concerning the statement, and the statement is *** (c) one of identification of a person soon after perceiving him, if the circumstances demonstrate the reliability of the prior identification. In State v. Houston (Jan. 13, 1994), Cuyahoga App. No. 64574, unreported, jurisdictional motion overruled, 69 Ohio St.3d 1478, 634 N.E.2d 1024, this court determined that evidence of prior identification is not hearsay pursuant to Evid.R. 801(D)(1)(c) if the identification carries traditional indicia of trustworthiness and reliability. In Houston, we noted that an identification of the defendant given to police but recanted at trial was admissible where the witness' identification of defendant as given to police officers minutes after the crime, when the youth was crying and upset after witnessing this horrible event, certainly carried the indicia of trustworthiness or reliability. Houston, supra, (citing State v. Taylor(1993), 66 Ohio St.3d 295, 299-301; State v. Fenton (1990), 68 Ohio App.3d 412, 422.) -6- In this case, Agosto, was screaming and upset when she saw appellant at Saint Luke's Hospital the day Rodgers was shot. Agosto's actions were immediate; she told a nurse and a security guard that appellant had shot Rodgers and also stated that appellant shot them in a written statement made that day. Moreover, Rodgers and Agosto immediately identified appellant as the shooter when they saw him and later gave statements consistent with that identification. These prior statements of identification made on the day of the shooting and later given to the police fall within the parameters of trustworthiness and reliability necessary to allow the trial court to admit them as substantive evidence under Evid.R. 801(D)(1)(c). Appellant's first assignment of error is overruled. II. Appellant's second and third assignments of error read: II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF OFFENSES FOR WHEN THERE WAS INSUFFICIENT EVIDENCE TO PERMIT A RATIONAL FACTFINDER TO RETURN A VERDICT OF GUILTY. III. DEFENDANT'S CONVICTION VIOLATES DUE PROCESS OF LAW AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The syllabus in State v. Martin (1985), 20 Ohio App.3d 172, 485 N.E.2d 717, reads in pertinent part: 2. In considering the claim that the conviction was not supported by sufficient probative evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. -7- 3. In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. 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 evidence weighs heavily against the conviction. Appellant was convicted of two counts of felonious assault, a violation of R.C. 2903.11, and one count of having a weapon under disability, a violation of R.C. 2923.13. R.C. 2903.11 reads: (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. *** R.C. 2923.13 reads in part: (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: *** (3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse. *** -8- Rodgers and Agosto's testimony provided that there was a felonious assault committed with a firearm. R.C. 2903.11. Rodgers was shot while in his car; Agosto was seated next to him. The State presented evidence of appellant's previous drug convictions. At issue in this case was only whether appellant committed the crime. The evidence at trial: both Rodgers and Agosto's statements, verbal and written, made at the hospital identifying appellant as the shooter; appellant's flight from the hospital; and the recovery of the same type of weapon used to shoot Rodgers; is sufficient to allow a rational trier of fact to convict appellant of the crimes of felonious assault and having a weapon under disability. For this reason, appellant's second assignment of error is overruled. In considering appellant's claim that his conviction was against the manifest weight of the evidence, we note that the trial court had to discount the credibility of the victims' testimony and instead rely on the veracity of the victims' prior identifications of appellant. This reliance is justified under the law. Accordingly, we cannot say that appellant's conviction amounts to a manifest miscarriage of justice which would warrant reversal. Appellant's third assignment of error is overruled. III. Appellant's fourth assignment of error reads: IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED DEFENDANT'S MOTION FOR A NEW TRIAL. -9- Appellant moved the court for a new trial pursuant to Crim.R. 33 and R.C. 2945.79, submitting affidavits from Rodgers and Agosto stating that they falsified their identification of appellant because they feared he would implicate them in a hit and run accident on New Year's Eve, 1995. Crim.R. 33 states in pertinent part: (A) Grounds A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: *** (6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. *** R.C. 2945.79 states in pertinent part: A new trial, after a verdict of conviction, may be granted on the application of the defendant for any of the following causes affecting materially his substantial rights: *** (F) When new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial. In State v. Petro (1947),148 Ohio St. 505, 76 N.E.2d 370, the syllabus reads: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. (State -10- v. Lopa, 96 Ohio St. 410, 117 N.E. 319, approved and followed.) In this case, Rodgers' and Agosto's affidavits merely provide a motive for their identification of appellant at the hospital and in their statements to the police. This testimony contradicts their testimony as to why their statements at the hospital and to the police and trial testimony differed. The trial court relied on the victim's prior identification of appellant to convict him. We cannot say there is a strong probability that another trial would result in acquittal because the victims have found another explanation for recanting their earlier statements. See, e.g., State v. Tijerna (1994), 99 Ohio App.3d 7, 11, 649 N.E.2d 1256, 1258. Moreover, this case does not warrant a new trial where the statements containing the identification of appellant were properly admitted, there was sufficient evidence to convict appellant, and appellant's conviction was not against the manifest weight of the evidence. Appellant's fourth 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 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 PRESIDING JUDGE SPELLACY, J., and JAMES D. SWEENEY, J., CONCUR. 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 .