COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73376 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : CLIFTON MAYS : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-350101 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: JOHN J. GALLAGHER, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 DYKE, P.J.: Appellant, Clifton Mays, is appealing his conviction for attempted murder with a firearm specification. For the following -2- reasons, we affirm. On February 5, 1997, Tameka Melton shot and wounded her ex- boyfriend, the appellant, Clifton Mays. On February 19, 1997, around 12:15 a.m., Tameka Melton was shot on East 131st Street near Bartlett. A .45 caliber slug was found at the scene. Pauline Humphris, appellant's friend, testified that in February, 1997, appellant said Tameka shot him in the shoulder. Appellant further stated, That B tried to kill me. I'm going to kill that hoe. Humphris also stated she had seen appellant carry a gun in the summer of 1996. Tameka Melton testified by videotape deposition, because she was recovering in the nursing home. She testified that she shot appellant with a .45. Appellant shot her in the head with a .45. She was shot near a bus stop while taking her son to school. Tameka made some inaccurate statements, had trouble remembering some details and had to have questions repeated. Curtis Wills, Jr., testified that on February 19, 1997, he was walking down East 131st Street. Wills observed a thin man with a black hooded sweatshirt and brown pants seated at the bus stop. Wills heard a loud boom, like fireworks. Wills turned around and saw the man in the black hooded sweatshirt standing at the corner with a gun in his hand. The man jogged away. Then, Wills saw a woman lying on the ground, bleeding. Wills was never asked to identify appellant from a line-up. In August, Wills came to court and identified appellant as the man in the hooded sweatshirt. When Wills made this identification, the -3- only two people sitting at the defense table was appellant and his lawyer. James Reasa testified that he was driving down 131st Street. He heard a loud noise and saw a woman fall down. He saw a slim man about 6 feet two inches tall step from behind the bus stop. The man was wearing a black hooded sweatshirt and khaki pants. The man had a big gun in his hand, and was jogging away from the scene. Reasa did not identify appellant as the man in the hooded sweatshirt. Eileen Kennedy testified that at the time of the shooting, she was working at a beauty salon located directly across the street from where the shooting occurred. Kennedy was looking out the front window at the other side of the street. She observed a tall, brown-skinned male in a doorway near the bus stop. The man was wearing dark brown pants and a dark colored jacket with a hood. After Kennedy heard shots, she looked out the window again. Kennedy observed the man in the hooded jacket leaving the scene. Kennedy further testified that four or five days later, a police officer showed her a photo array. She selected appellant's photo as the man in the hooded jacket. The police officer did nothing to suggest that she should select any particular photo. Cleveland Police Detective Michael Smith testified that he showed the photo array of five pictures to Kennedy. The suspect had been described as a black male in his early twenties with medium brown skin and closely cropped hair. Smith attempted to select photos to match this description. Smith admitted that appellant -4- had the shortest hair of all the men in the photographic line-up. Another man had a closely cropped hair style. Smith further testified that he recovered a .45 caliber bullet from the kitchen sink of appellant's apartment and a spent .45 pellet from the apartment wall. These bullets could not be matched to the bullets found on East 131st Street. Brenda Mays, appellant's mother, testified that on February 19, 1997, from noon to one o'clock, she and appellant had lunch at the Burger King on 30th and Carnegie. I. Appellant's first assignment of error states: THE PHOTO ARRAY DISPLAYED TO EILEEN KENNEDY WAS UNDULY SUGGESTIVE, CAUSING THE RESULTANT CONVICTION TO BE VIOLA- TIVE OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. Convictions based on eyewitness identification will be set aside only if the identification procedure was "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, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253, State v. Jells (1990), 53 Ohio St.3d 22, 27. Even if an identification procedure is suggestive, the identification testimony may be admissible if the identification was reliable. Manson v. Brathwaite (1977), 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, Jells, supra. To determine whether an identification was reliable, the court considers the totality of the circum- stances, particularly the following five factors: -5- " * * * the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. * * *" Biggers, supra at 199, See also Manson, Jells, supra. The court must weigh these factors against the corrupting effect of the identification itself. Manson v. Brathwaite, supra at 114. The photographic line-up shown to Kennedy contained five photographs of men of similar age, coloring, facial hair and facial features. Appellant was the only man who was shaved bald. All of the men had short hair, and one man had a very closely cropped hairstyle. The suspect had been described as having closely cropped hair. Kennedy had an unobstructed view of appellant from across the street. She observed appellant before and after the shooting. Kennedy was able to describe appellant's physical characteristics and clothing. The first time she looked, she did not observe appellant's facial features. Concerning her degree of attention, Kennedy was looking out the window because business was slow, and then was looking because she heard the shots. It is not clear whether Kennedy gave a description to the police before she looked at the photos. Kennedy was certain that the man she saw leaving the scene was appellant. Four or five days had elapsed between the crime and the photographic line-up. We find that any corrupting effect of the photos selected was outweighed by the circumstances, which demonstrated that the identification was reliable. The identification procedure was not -6- so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE INTRODUCED TO THE JURY. Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, know- ledge, identity, or absence of mistake or accident. Evid. R. 404(B). The trial court admitted evidence of other acts, but instructed the jury that this evidence could only be used for the limited purposes, stated above. Appellant contends the testimony that shots fired in his apartment constituted inadmissable testimony of other acts. There was no testimony that appellant fired these shots. In fact, it was indicated that these were the shots fired by Tameka. This testimony was relevant to show motive. Another purpose of this testimony was to show opportunity and the identity of the assailant. The testimony demonstrated that appellant had access to a .45 caliber weapon. Evidence of access to a gun shortly before the crime occurred is admissible to show opportunity or identity. State v. Lancaster (1971), 25 Ohio St.2d 83, cf. State v. Parrish (1991), 71 Ohio App.3d 659, 666. Appellant also contends the court improperly allowed Millie Melton, the victim's mother, to testify that appellant threatened -7- to shoot Tameka on a previous occasion. The alleged threats were remote in time and inadmissable. See State v. Flaherty (1992), 78 Ohio App.3d 718, 724-725. However, the trial judge sustained an objection and instructed the jury to disregard the testimony. If a curative instruction is given, the jury is presumed to obey the court's instruction unless the record shows otherwise. State v. Loza(1994), 71 Ohio St.3d 61, 75. Additionally, admission of this evidence was not prejudicial, as Ms. Humphris testified that in February, 1997, appellant said he would kill the victim. See generally, State v. Hutton (1990), 53 Ohio St.3d 36, 41. Appellant contends that the following testimony violated Evid. R. 404(B): (1) Officer Wesley McClain testified that on March 8, 1994, he saw a gun in plain view in the appellant's vehicle, and (2) Sergeant Leonard Poss testified that on August 30, 1995, he responded to a domestic violence complaint from Miss Mays, appellant's mother. Miss Mays showed the officer the location of a gun, located near the couch where appellant was sleeping. The fact that appellant was involved in a domestic violence incident with his mother was not relevant for any purpose. Testimony that appellant was involved in a domestic violence incident was inadmissable under Evid. R. 402 and 404. However, admitting this testimony was harmless error. See Hutton, supra. Concerning the prior acts of gun possession, evidence the defendant had access to a gun shortly before the crime shows opportunity or identity, and does not violate Evid. R. 404(B). See Lancaster, supra. Evidence that appellant possessed a gun two -8- months after the crime occurred was not relevant to show that appellant had access to firearms at the time of the shooting, because it was too remote in time. State v. Parrish (1991), 71 Ohio App.3d 659, 666. Admission of a gun possession incident that was too remote in time violated Evid. R. 402 and 404(B). Id. In this case, the evidence that appellant possessed firearms one and a half to two years before the shooting was too remote in time to demonstrate that appellant possessed a gun on the day of the shooting. Even if this evidence was inadmissable, reversible error did not occur if the other evidence, standing alone, constituted overwhelming proof of guilt. State v. Hutton (1990), 53 Ohio St.3d 36, 41. In this case, the .45 caliber bullets and slugs found in appellant's apartment demonstrated that appellant had access to weapons. The victim testified that appellant shot her with a .45. Witnesses saw appellant at the scene with a gun. Evidence of the 1994 and 1995 incidents was harmless error. See Hutton, supra. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER PREJUDICIALLY IRRELEVANT EVIDENCE. Millie Melton testified that Tameka could not talk when she first came out of her coma. Currently, Tameka can recognize people and carry on intelligent conversations. Tameka still has a bullet lodged in her head. She is paralyzed on her left side and will be in a wheelchair the rest of her life. -9- Appellant asserts that this testimony is irrelevant and pre- judicial, or its relevance is substantially outweighed by the danger of unfair prejudice. See Evid. R. 402, 403(A). Victim impact evidence that does not have to do with the circumstances of the crime is not admissible in the guilt phase of a trial. State v. Fautenberry (1995), 72 Ohio St.3d 435, 440. Victim impact evidence is admissible if it is relevant for another purpose. State v. Keene (1998), 81 Ohio St.3d 646, 661. It was relevant for the jury to know that the victim was shot in the head, to prove that appellant's purpose was to kill the victim. See R.C. 2903.02. Information as to the victim's brain injury and her ability to communicate was relevant for the jury to evaluate the credibility of the victim's testimony. The fact that the victim would be in a wheel chair the rest of her life was not relevant. Admission of this evidence amounted to harmless error. See State v. Taylor (1997), 78 Ohio St.3d 15, 27. There is no reasonable probability that appellant would have been acquitted had this evidence not been admitted, considering the overwhelming proof of appellant's guilt. See State v. Brown (1992), 65 Ohio St.3d 483, State v. Williams (1983), 6 Ohio St.3d 281, Crim. R. 52. Appellant asserts that Mrs. Melton's testimony that Tameka no longer loved appellant was irrelevant and prejudicial. Appellant first raised the issue of whether appellant and the victim loved each other, and invited any error. State v. Kniep (1993), 87 Ohio App.3d 681, 686. Additionally, although this evidence is not relevant, its admission is at most harmless error. See Crim. R. -10- 52, Brown, Williams, supra. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT IMPROPERLY ALLOWED THE HEARSAY EVIDENCE TO IMPEACH A DEFENSE WITNESS. Brenda Mays testified concerning the August 30, 1995 domestic violence complaint, where she showed the police a gun located near appellant. The officer who handled this complaint, Sergeant Poss, was unavailable to testify as a rebuttal witness. Detective Clarence Sanders testified that he reviewed the police report written by Poss concerning the August 30 incident. Brenda Mays' testimony was not consistent with the police report. Appellant asserts that the rebuttal testimony of Detective Sanders was inadmissible hearsay. See Evid. R. 801. Even if this testimony was inadmissable hearsay, its admission was harmless error. See See State v. Brown (1992), 65 Ohio St.3d 483, State v. Williams (1983), 6 Ohio St.3d 281, Crim. R. 52. We determined above that the admission of the August 30, 1995 incident was harmless error. Accordingly, this assignment of error is overruled. The decision of the trial court is 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. NAHRA, J., AND KARPINSKI, J., CONCUR. ANN DYKE PRESIDING JUDGE 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 .