COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73889 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JACOB OWENS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-346810 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: PATRICK J. McCARTHY (#0061952) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH (#0059621) 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant JacobOwens ( appellant ) appeals from his conviction for one count of aggravated burglary in violation of R.C. 2911.11, two counts of aggravated robbery in violation of R.C. -2- 2911.01, and one count of felonious assault in violation of 2903.11. All of the charges contained firearm specifications. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED WHEN IT ALLOWED IRRELEVANT VICTIM IMPACT TESTIMONY OVER THE APPELLANT'S OBJECTION. II. THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW A WITNESS TO TESTIFY TO A RELEVANT MATTER THAT WAS A PART OF THE APPELLANT'S DEFENSE. III. THE TRIAL COURT COMMITTED MISCONDUCT WHEN IT MADE IMPROPER COMMENTS AND ASKED QUESTIONS OF DEFENSE WITNESSES WHICH TENDED TO EXPRESS THE COURT'S OPINION AS TO THE CREDIBILITY OF THE WITNESSES. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. Appellant was indicted for one count of aggravated burglary, two counts of aggravated robbery, and three counts of felonious assault. All of the counts contained firearm specifications. Appellant pled not guilty and was tried before a jury on the charges. The indictment stemmed from an incident which happened in the early morning hours of September 28, 1996. Between 3:00 and 3:30 a.m., three intruders burst through the front door of Dorothy Scott's home located at 12723 Benwood Avenue in Cleveland. At the time, Dorothy Scott was awake and in the kitchen. She was unable to phone the police as the telephone was in her niece's bedroom. One of the men picked up Dorothy Scott's daughter and grand-niece from where they were sleeping on the dining room floor and took -3- them into a bedroom where Scott's son slept on the floor. Another man, holding a gun, grabbed Dorothy Scott and forced her into the bedroom where the children were. The third man, identified as appellant, went toward the bedroom of Sharita Scott, Dorothy Scott's niece, and pointed a gun with an infrared beam at Sharita Scott's head. Appellant pushed Sharita Scott back into the room until she sat on the foot of her bed. Appellant struck Sharita Scott's head several times while demanding money. Sharita Scott gave appellant forty or fifty dollars ($40.00 - $50.00). Dorothy Scott saw appellant hitting her niece and told him to stop. Dorothy Scott lifted up her mattress and removed six hundred dollars ($600.00) which Sharita Scott had saved for with the purpose of renting an apartment. Dorothy Scott gave the money to the intruder who was in her room. The three men then left the home. That afternoon, Sharita Scott was waiting for a bus when she observed appellant drive by in a dark green Nissan Sentra. Appellant spotted her, slowed down, and then reversed his automobile before driving quickly away. Sharita Scott recognized appellant from the neighborhood. She discovered appellant's first name from a friend. The next day, September 29, 1996, Sharita Scott, her aunt and cousins were outside their home in the early afternoon. Appellant drove his car slowly by their house several times, acting as if he were using a cellular phone. After obtaining the vehicle's license plate number, Sharita Scott entered her home and called the police. -4- Appellant was apprehended on a street near Benwood Avenue after police spotted his vehicle. Appellant denied any involvement in the robbery at the Scott residence. Appellant testified that, on September 27, 1996, he was home from 8:00 p.m. until the next day. Appellant's father, J.T. Owens, testified that appellant was sleeping on the living room couch when Owens came home on the night of September 27, 1996. Appellant still was asleep on the couch the next morning. J.T. Owens also asserted that appellant assisted Owens in painting at the home of Owens' sister that afternoon. Darrell Owens, appellant's brother, testified that he stayed up the entire night of September 27 and 28, 1996, watching televison in the living room. Appellant slept on the living room couch that night and did not leave home. The jury convicted appellant of one count of aggravated burglary, two counts of aggravated robbery, and one count of felonious assault. The jury found appellant guilty of the firearm specifications. Appellant was acquitted of two of the felonious assault charges. II. In his first assignment of error, appellant contends the trial court erred by permitting victim impact testimony to be admitted at trial. Specifically, appellant objects to the following testimony by Sharita Scott: Q. You said you lived there for how long? A. For two months. -5- Q. Okay. You currently reside there? A. No. Q. Why is that? A. Because after the incident happened - - MR. FRIEDMAN: Objection, your Honor. THE COURT: Overruled at this point. Go ahead. A. Because after this incident happened, I just felt, I didn't feel secure there and I was moving anyway, but that made me move a lot quicker. (Tr.41) Appellant also points to further testimony by Sharita Scott in which she stated that she has been paranoid since the incident and no longer trusted guys or let anyone into her home. Appellant submits that the state's only purpose in eliciting this testimony was to inflame the passions of the jury. The decision whether to admit or exclude evidence is left to the sound discretion of the trial court and will not be reversed unless that discretion is abused. State v. Combs (1991), 62 Ohio St.3d 278. The term abuse of discretion implies more than an error of law or judgment. Rather, the term suggests the trial court acted in an unreasonable, arbitrary, or unconscionable manner. St ate v. Xie (1992), 62 Ohio St.3d 521. Not only must there be an abuse of discretion, but the abuse must amount to prejudicial error. Statev. Lundy (1987), 41 Ohio App.3d 163, 169. Furthermore, when applying the abuse of discretion standard, a reviewing court is not free to substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161. -6- The Eighth Amendment does not per se bar victim impact testimony. State v. Fautenberry (1995), 72 Ohio St.3d 435, 438- 439. True impact testimony should only be considered by the trial court prior to imposing sentencing and not during the guilt phase of the trial. Id. at 440. Evidence relating to the facts and circumstances surroundingthe offense clearly are admissible during the guilt phase. State v. Loza (1994), 71 Ohio St.3d 61. Sharita Scott testified that the six hundred dollars ($600.00) taken from underneath her aunt's mattress was Sharita Scott's money. She had saved the money for the purpose of moving out of her aunt's home. The testimony related to the facts and circumstances of the case. The testimony that Sharita Scott had moved a bit quicker because of the robbery was not sufficient to inflame the passions of the jury. Sharita Scott further testified that she now feels paranoid and distrusts people. She also admitted to having paranoid schizophrenia. The testimony was minor and, in light of Sharita Scott's medical condition, probably had little impact on the jury's finding of guilt. The trial court did not abuse its discretion by admitting the limited victim impact testimony. There was no showing that the trial court's action was arbitrary, unreasonable, or unconscionable. Appellant's first assignment of error lacks merit. III. -7- In his second assignment of error, appellant argues that the trial court abused its discretion by refusing to permit J.T. Owens to testify about the medical condition of appellant's shoulder. Appellant proffered that his father would have testified that appellant's left shoulder goes out and that he cannot fully swing or lift his arm up. The trial court found that the evidence was not relevant as appellant could still swing his right shoulder. Appellant had no medical records to offer. Evid.R. 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence which is not relevant is inadmissible. Evid.R. 402. It is within the sound discretion of the trial court to apply its common experience and logic to determine the relevance of evidence. State v. Lyles (1989), 42 Ohio St.3d 98, 99-100. A reviewing court will only overturn the rulings of a trial court where there is a clear abuse of discretion and the defendant has been materially prejudiced as a result. State v. Maurer (1984), 15 Ohio St.3d 239, 265. A trial court's improper evidentiary ruling, over an objection, cannot be the basis for reversal of the judgment when the alleged error was harmless. State v. Hart (1991), 72 Ohio App.3d 92, 99. Appellant testified that his left shoulder was dislocated causing it to pop out if he did certain things like playing basketball. Appellant contends that the testimony by his father -8- would have bolstered his claim that he was not involved in the robbery and assault on Sharita Scott. His father's testimony was that appellant was physically incapable of fully swinging or lifting his left arm. Appellant only testified that he had trouble doing certain activities such as playing basketball. Appellant never stated that he could not use his arm to strike someone. There was no medical evidence introduced to aid in proving appellant's claim that he could not have struck Sharita Scott. The trial court expressed its belief that appellant could have used his right arm to hit his victim, making the evidence by J.T. Owens irrelevant. A trial court's determination of relevancy usually will not be disturbed on appeal. Further, appellant certainly was more cognizant of his medical condition than was his father. Appellant never directly stated that he could not have used his left arm to hit someone. If there was any error in the exclusion of the testimony, it was harmless based on appellant's testimony on the same subject. Appellant's second assignment of error is overruled. IV. Appellant's third assignment of error maintains that the trial court abused its discretion and prejudiced appellant by making improper comments and asking inappropriate questions of defense witnesses. Appellant points to three different instances during trial in which he argues the trial court committed misconduct in its manner of questioning his witnesses. A trial judge is presumed to act in a fair and impartial -9- manner. In re Disqualification of Kilpatrick (1989), 47 Ohio St.3d 605, 606. Evid.R. 611(A) provides that the trial court has discretion to control the flow of trial including the questioning of witnesses. Evid.R. 614(B) permits the trial court to interrogate witnesses in an impartial manner. The judge must bear in mind that his influence on the jury can be of great weight. State v. Thomas (1973), 36 Ohio St.2d 68. The appropriate standard of review is whether the trial court abused its discretion in eliciting responses from the witness. An abuse of discretion involves an attitude of the part of the trial court which was unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. In a jury trial, a trial court's participation must be limited, so that the trial court, either consciously or unconsciously, does not indicate its opinion on the credibility of a witness. State v. Prokos (1993), 91 Ohio App.3d 39. When an issue is raised as to the appropriateness of a judge's comments, a reviewing court must determine whether the remarks were prejudicial to a defendant's right to a fair trial. In State v. Wade (1978), 53 Ohio St.2d 182, 188, the court set forth the following criteria to determine whether a trial court has committed prejudicial error: (1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the -10- effectiveness of counsel. The defendant must demonstrate prejudice in order to justify the reversal of a conviction. Id. at paragraph two of the syllabus. The first instance of alleged judicial misconduct occurred during the testimony of J.T. Owens, appellant's father. THE COURT: Mr. Owens, let me ask you a question, okay. What were you doing September 26th, 1996? THE WITNESS: September 26th. That was on a Thursday. Yeah. I was probably working at my sister's house. THE COURT: What were you doing October 1st? MR. FRIEDMAN: Objection. Objection, your Honor. THE COURT: October 1st, 1996. THE WITNESS: October 1st. I couldn't say, your Honor. THE COURT: How is it that you can remember the details of September 27th, 1996 so clearly? MR. FRIEDMAN: Objection, your Honor. THE WITNESS: Because I believe the World Series and stuff was on and I was waiting for Ohio State to play that day after I had called Jacob, and my sister said that the game don't come on until 4 o'clock or something. THE COURT: All right. Thanks very much. (Tr. 297-298). Appellant asserts that this exchange indicated to the jury that the trial court did not believe the testimony of J.T. Owens. Appellant argues that it was improper for the trial court to ask about the dates surrounding the offense as it would be impossible for anyone to remember their activities on those dates. J.T. Owens gave a very specific account of the events of -11- September 27, 1996. In response to the trial court's inquiry, J.T. Owens explained why he could remember what happened on that date. Appellant cannot show he was prejudiced by the trial court's questioning of this witness. Appellant next objects to the trial court asking appellant's brother, Darrell Owens, about the number of times he had been convicted of a felony and if he had been ordered to obtain a job. Appellant states that these questions showed that the trial court disapproved of Darrell Owens which influenced the jury's opinion of the witness. The jury already was aware of Darrell Owens' criminal record as well as his unemployment. The judge's actions must be viewed in light of the total circumstances of the case. State, ex rel. Wise v. Chand (1970), 21 Ohio St.2d 113, paragraph four of the syllabus. Appellant was not prejudiced by the exchange. Lastly, appellant points to the trial court's comment during appellant's testimony. Appellant was asked by the prosecutor when he had last smoked marijuana. Appellant replied he would have to think about it and then asked what today's date was. The trial court stated: You're the guy with the great memory. You tell me. (Tr. 352). Although appellant objected to the remark, he did not ask the trial court for a cautionary instruction following the comment. Therefore, any claim of error is waived. State v. Bayless (May 31, 1995), Crawford App. No. 3-94-15, unreported. Further, the trial court included in its jury instruction the admonition that the jury was to disregard any thing the trial court -12- did or said which may indicate to the jury the trial court's view in the case. A jury is presumed to have followed the instructions given to it by the trial judge. State v. Henderson (1988), 39 Ohio St.3d 24. Although this court agrees the trial court's statement was inappropriate and ill-advised, the comment did not result in prejudice which warrants reversal. Appellant's third assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. 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. -13- LEO M. SPELLACY, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D), 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(B) 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 .