         [Cite as State v. Simpson, 2011-Ohio-4578.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-100789
                                                       TRIAL NO. B-1002094
        Plaintiff-Appellee,                       :
                                                       O P I N I O N.
  vs.                                             :

DANIEL SIMPSON,                                   :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 14, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Derek W. Gustafson, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Presiding Judge.

       {¶1}    Defendant-appellant Daniel Simpson appeals his conviction for

aggravated robbery under R.C. 2911.01(A)(1), along with the accompanying firearm

specification. We find no merit in his five assignments of error, and we affirm the

trial court’s judgment.

                                I.   Facts and Procedure

       {¶2}    The record shows that William Knott and his friend Melvin Lunsford

decided to go bar-hopping one evening. That night, Knott met Julie Cooper and

eventually exchanged telephone numbers with her.           Knott noticed that Cooper

seemed to be with two or three other men, one of whom he later identified as

Simpson.

       {¶3}    A short time later, Knott and Lunsford left the bar. While they were

driving home, Knott sent text messages to a person he thought was Cooper, but was

actually Simpson. Simpson told Cooper that Knott would be calling her, and that she

should go where Knott told her to go. When Knott called, he and Cooper arranged to

meet at a Kroger store near Knott’s home. Knott and Lunsford thought that Cooper

was going to have sex with them.

       {¶4}    Knott met Cooper in the parking lot of the Kroger store. Cooper

followed Knott and Lunsford to Knott’s home. Simpson and his friends followed

Cooper. Once they arrived at Knott’s home, Cooper, Knott and Lunsford went to a

backyard shed because Knott’s live-in girlfriend was asleep in the house.

       {¶5}    Cooper asked Knott for a drink, and he went inside the house to get it.

When he returned, three men kicked in the door of the shed and jumped out at him.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



One of the men had a shotgun, and demanded the keys to Lunsford’s car and other

valuables. Cooper ran to her car.

       {¶6}    Even though he was wearing a bandanna over his face, Knott and

Lunsford recognized one of the men as Simpson, whom they had seen earlier in the

evening. They stated that Simpson had lifted up the bandanna so that he could see,

giving them an unobstructed view of his face.

       {¶7}    Simpson and his two companions forced Knott and Lunsford to strip

and lie down next to each other on the shed floor.       Knott’s girlfriend heard a

commotion and yelled out the window that the police were on their way. The three

robbers then fled on foot.

       {¶8}    Knott and Lunsford chased after the robbers, who ran by a car that

Knott believed the three men had been driving. The robbers then jumped into what

Knott believed was Cooper’s car. Knott and Lunsford got into Knott’s girlfriend’s car

and chased, but subsequently lost, the robbers.

       {¶9}    The police arrived and looked into the car that Knott and Lunsford

believed that the three men had been driving. The trunk was already open, and

inside, the police officers saw masks similar to the masks the robbers had worn. The

police subsequently towed the car.

       {¶10}   A few hours later, as the sun was coming up, Knott and Lunsford saw

an African-American girl walking down Knott’s street. Knott knew that he was the

only African-American living in the neighborhood, so he was suspicious.         They

followed the girl and saw her get into a car in which Simpson was also riding. They

called the police, who arrived quickly and stopped the car. Knott and Lunsford

identified Simpson, and he was arrested.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11}     Simpson was indicated for aggravated robbery, with accompanying

firearm specifications, and robbery. A jury found him guilty as charged in the

indictment. The trial court merged the robbery count and firearm specifications for

sentencing. It sentenced Simpson to serve a total of eight years’ imprisonment. This

appeal followed.

                              II. Improper Civil Jury Instruction

       {¶12}     In his first assignment of error, Simpson contends that the trial court

erred in instructing the jury. He argues that the trial court improperly gave an

instruction intended for civil trials and, therefore, it misstated the burden of proof

and denied him a fair trial. This assignment of error is not well taken.

       {¶13}     A trial court must fully and completely give the jury all instructions

that are relevant and necessary for the jury to weigh the evidence and to discharge its

duty as the fact-finder.1 A single instruction cannot be judged in isolation, but must

be viewed in the context of the overall charge.2

       {¶14}     The trial court instructed the jury that “[y]ou may infer a fact or facts

only from other facts and circumstances that have been proven by the greater weight

of the evidence, but you may not make inferences from a speculative or remote basis

that has not been established by the greater weight of the evidence.” Simpson

objected to this instruction as required by Crim.R. 30.3

       {¶15}     Simpson is correct that this instruction sets forth a civil-trial

standard.      The phrase, “greater weight of the evidence,” equates with a




1 State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus; State
v. Dieterle, 1st Dist. No. C-070796, 2009-Ohio-1888, ¶22.
2 State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus;
Dieterle, supra, at ¶22.
3 See State v. Coley, 93 Ohio St.3d 253, 266, 2001-Ohio-1340, 754 N.E.2d 1129; State v. McCrary,
1st Dist. No. C-080860, 2009-Oho-4390, ¶26.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



preponderance of the evidence, and its use in a criminal case is erroneous.4

Nevertheless, an appellate court will not reverse a conviction due to improper jury

instructions unless the defendant was prejudiced.5

        {¶16}    In this case, the trial court correctly instructed the jury on reasonable

doubt. It told the jury several times that they could not convict Simpson unless they

found him guilty beyond a reasonable doubt. Viewing the instructions as a whole, we

hold that Simpson was not prejudiced by the error.6

        {¶17}    Simpson argues that the instruction allowed the jury to use an

inference upon an inference to find that the shotgun used in the robbery was

operable. But the evidence showed that the shotgun was used in a threatening

manner consistent with it being operable.7 The finding did not require an inference

upon an inference. Consequently, we overrule Simpson’s first assignment of error.

                              III. Prior Inconsistent Statements

        {¶18}    In his second assignment of error, Simpson contends that the trial

court erred in refusing to admit into evidence two tape-recorded telephone

conversations between Simpson and Knott. In those conversations, Knott allegedly

asked Simpson for money in exchange for not testifying against him.                   Simpson

argues that Knott’s statements were inconsistent with his trial testimony and should

have been admitted as prior inconsistent statements, and as evidence of bias,

prejudice and motive to lie. This assignment of error is not well taken.




4 State v. Scott, 7th Dist. No. 07 MA 152, 2009-Ohio-4961, ¶64-66; State v. Young, 7th Dist. No.
07 MA 120, 2008-Ohio-5046, ¶23-24; State v. Doan (Feb. 28, 2000), 12th Dist. No. CA97-12-014;
State v. Coe (June 4, 1998), 2nd Dist. No. 13-97-46.
5 Dieterle, supra, at ¶22; State v. Robinson, 1st Dist. No. C-060434, 2007-Ohio-2388, ¶18.
6 See Scott, supra, at ¶66-75; Young, supra, at ¶25-36; Doan, supra; Coe, supra.
7 See State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph one of the
syllabus; State v. Griffin (Jan. 29, 1999), 1st Dist. No. C-970773.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶19}    Though there was some argument at trial about whether the tapes

were properly authenticated, the record shows that the trial court ultimately

excluded the taped conversations under Evid.R. 613(B), which allows for the

admission of extrinsic evidence of a prior inconsistent statement when a proper

foundation is laid. First, a witness must be afforded an opportunity to explain or

deny the statement and then the opposing party must be afforded the opportunity to

interrogate the witness on the statement.8

        {¶20}    A proper foundation was laid for the introduction of the taped

statements, because Simpson cross-examined Knott about the statements and Knott

denied making them. But the subject matter of the extrinsic evidence must also be a

“fact that is of consequence to the determination 0f the action other than the

credibility of a witness.”9 A party may not present extrinsic evidence to contradict a

witness on a collateral matter.10 The decision whether to admit a prior inconsistent

statement that is collateral to the issue being tried and pertinent to the credibility of

a witness is a matter within the trial court’s discretion.11

        {¶21}    In this case, the trial court found that the taped statements went

solely to Knott’s credibility and involved matters collateral to the robbery itself. We

agree. Knott’s testimony about the robbery was generally consistent except for some

minor details.      Further, the attacks on Knott’s credibility did not undermine

Lunsford’s testimony.       He also testified about the details of the robbery and

identified Simpson as one of the perpetrators. Whether Knott was willing to not

testify in exchange for a bribe does not go to the central issue of whether Simpson


8  State v. Mack, 73 Ohio St.3d 502, 514-515, 1995-Ohio-273, 653 N.E.2d 329; State v. Carusone,
1st Dist. No. C-010681, 2003-Ohio-1018, ¶36; State v. Davenport (July 30, 1999), 1st Dist. No. C-
980516.
9 Evid.R. 613(B)(2)(a).
10 State v. Wilson, 2nd Dist. No. 22120, 2008-Ohio-4130, ¶27.
11 Carusone, supra, at ¶37; State v. Soke (1995), 105 Ohio App.3d 226, 239, 663 N.E.2d 986.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



committed the robbery. Under the circumstances, we cannot hold that the trial

court’s decision to exclude the evidence was so arbitrary, unreasonable or

unconscionable as to connote an abuse of discretion.12

           {¶22}    Further, even if the trial court had erred in excluding the taped

statements from evidence, that error would not have contributed to the conviction

given the quantum of evidence against Simpson. Consequently, any error would

have been harmless beyond a reasonable doubt.13 We overrule Simpson’s second

assignment of error.

                                        IV. Hearsay/Relevance

           {¶23}    In his third assignment of error, Simpson contends that the trial court

erred in refusing to allow Simpson to testify about out-of-court statements made by

Cooper and another individual, Sean Hall, on the basis that the statements

constituted hearsay. He argues that the statements were admissible under Evid.R.

803(3) as statements of the declarants’ then existing mental state.              While this

argument has some merit, we ultimately hold that this assignment of error is not well

taken.

           {¶24}    Evid.R. 803(3) sets forth a hearsay exception for “[a] statement of the

declarant’s then existing state of mind, emotion, sensation, or physical condition

(such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not

including a statement of memory or belief to prove a fact remembered or believed[.]”

The hearsay statement must point towards the future, rather than the past. Thus,




12   See State v. Clark, 71 Ohio St.3d 466, 470, 1994-Ohio-43, 644 N.E.2d 331.
13   See Robinson, supra, at ¶16.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



statements of current intent to take future actions are admissible for the inference

that the intended act was performed.14

        {¶25}    Simpson sought to introduce testimony that Cooper and Hall had

approached him about a week before the offense and asked him to participate in a

robbery. These statements fall squarely within the exception, and the trial court

should have admitted them into evidence if the only issue affecting their admission

was whether they were hearsay.

        {¶26}    But, in our view, the statements were not relevant to the main issue at

trial. Relevant evidence is “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 have been without the evidence.”15

        {¶27}    The issue before the jury in this case was whether Simpson had

participated in the robbery. Both eyewitnesses testified that Simpson was one of the

robbers. Who had planned the robbery was not of consequence to the determination

of Simpson’s guilt in participating in it.      Therefore, the statements were irrelevant

and not admissible into evidence.16 Consequently, the trial court did not err in

excluding them.

        {¶28}    Even if the court did err, Simpson was able to present evidence to the

jury through cross-examination of the state’s witnesses and the testimony of defense

witnesses that he did not commit the robbery and that it was the work of Cooper and

Hall.   Therefore, any error was harmless,17 and we overrule Simpson’s third

assignment of error.



14 State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶99; State v. Byrd, 1st Dist.
No. C-050490, 2007-Ohio-3787, ¶31.
15 Evid.R. 401.
16 Evid.R. 402.
17 See Robinson, supra, at ¶16.




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                       OHIO FIRST DISTRICT COURT OF APPEALS


                      V. Jury Instruction on Eyewitness Identification

       {¶29}      In his fourth assignment of error, Simpson contends that the trial

court erred in refusing to give his proposed jury instruction on eyewitness

identification.    He argues that because the witnesses identified him through a

nonobjective process, the jury should have been instructed that those procedures

could have led to misidentification. This assignment of error is not well taken.

       {¶30}      Generally, the trial court must give requested special instructions

when they are correct, pertinent and timely presented.18 The court need not give a

requested jury instruction when it is included, in substance, in the general charge.19

       {¶31}      Simpson’s proposed instruction stated, “In this case there was

testimony that the defendant was viewed by the [sic] Mr. Knott and Mr. Lunsford

shortly after the event. Single person lineups have long been disfavored in the law as

inherently suggestive. Suspects being viewed singly can lead to misidentification.

You are to consider this fact along with all other factors in deciding whether

identification of the defendant by Mr. Knott and Mr. Lunsford was in fact accurate.”

       {¶32}      Initially, we note that this proposed instruction was not a correct

statement of Ohio law. No prohibition exists against a victim viewing a suspect alone

in a “one-man showup” when it occurs near the time of the alleged criminal offense.

This court has stated, “Such a course does not tend to bring about misidentification

but rather tends under some circumstances to insure accuracy.”20 The instructions




18 State v. Joy, 74 Ohio St.3d 178, 181, 1995-Ohio-259, 657 N.E.2d 503; State v. Wellman, 173
Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶26.
19 Wellman, supra, at ¶26.
20 State v. Richards, 1st Dist. No. C-050938, 2007-Ohio-172, ¶14, quoting State v. Madison
(1980), 64 Ohio St.2d 322, 332, 415 N.E.2d 272.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



the trial court gave to the jury accurately conveyed the law on eyewitness

identification.21

        {¶33}    Further, in this case, there was no lineup or showup of any kind.

Knott and Lunsford happened to see Simpson driving through the neighborhood the

morning after the robbery and alerted the police. Under the circumstances, the trial

court did not err in failing to give the proposed instruction, and we overrule

Simpson’s fourth assignment of error.

                                      VI. Cumulative Error

        {¶34}    In his fifth assignment of error, Simpson argues that the court’s

multiple errors had a cumulative effect that denied him a fair trial. The cumulative

effect of errors may deprive a defendant of a fair trial, even though the individual

instances of error do not warrant a reversal.22 The defendant must demonstrate that

a reasonable probability exists that the outcome of the trial would have been

different absent the alleged errors.23

        {¶35}    Simpson has not demonstrated that, but for any errors by the trial

court, the outcome of the trial would have been different. He received a fair trial and

the evidence was sufficient to support his conviction.24 Consequently we overrule his

fifth assignment of error and affirm the trial court’s judgment.

                                                                         Judgment affirmed.

H ILDEBRANDT and F ISCHER , JJ., concur.
Please Note:
        The court has recorded its own entry this date.


21 See State v. Guster (1981), 66 Ohio St.2d 266, 270-272, 421 N.E.2d 157; State v. Witherspoon,
8th Dist. No. 94475, 2011-Ohio-704, ¶21-26; State v. Peoples (Sept. 20, 1995), 1st Dist. No. C-
940809.
22 State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, paragraph two of the syllabus;
Dieterle, supra, at ¶38.
23 Dieterle, supra, at ¶38.
24 See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.




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