State v. Juan Lebron, 82-LW-3151
| Decision Date | 12 August 1982 |
| Docket Number | 44184,82-LW-3151 |
| Parties | STATE OF OHIO APPELLEE, v. JUAN LeBRON APPELLANT. |
| Court | Ohio Court of Appeals |
For plaintiff-appellee: John T. Corrigan.
For defendant-appellant: James D. London.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:
On May 27, 1981, the defendant-appellant, Juan LeBron, was indicted for two counts of felonious assault (R.C. 2903.11); two counts of aggravated robbery (R.C. 2911.01); and one count of aggravated burglary (R.C. 2911.11). On June 3, 1981, the appellant entered a plea of not guilty to these offenses.
At the trial of this matter, the prosecution sought to prove that LeBron was involved in two separate instances of assaulting and robbing homosexual men. David Gaughan testified that on July 31, 1980, he went to the Vault, a homosexual bar in Cleveland, accompanied by his friend, Tony Santos. (Tr. 85.) While there, Santos introduced Gaughan to the appellant. (Tr 85.) The two latter talked and eventually began kissing and petting. (Tr. 124-125.) After several hours, they took a taxi to Gaughan's apartment for the purpose of having sex. (Tr. 87.)
Gaughan testified that LeBron followed him into his apartment and bedroom. Once inside, LeBron pulled out a folding knife pointed it toward Gaughan and threatened to kill him. He took Gaughan's money and then demanded more, stabbing Gaughan in the rib and arm. (Tr. 89, 91.) He then ordered Gaughan to carry his stereo equipment outside so that LeBron could take it with him. As LeBron opened the building door, however, Gaughan threw the equipment at him and closed the door behind him. (Tr. 90.)
Gaughan went to Fairview Hospital for treatment and then reported the incident to the Cleveland Police. (Tr. 93-94.) He did not see LeBron again until April 17, 1981, when he spotted him at the Six-Twenty, another homosexual bar. Upon seeing the appellant, Gaughan immediately telephoned the police. (Tr. 95.) Patrolman Wayne Cantrell was dispatched to the scene and eventually picked LeBron up at a nearby bus stop. (Tr. 357-359.) After Gaughan identified the appellant as his assailant, the officers placed LeBron under arrest. (Tr. 360.)
Gaughan also telephoned Robert Kennedy, a friend of his whom he knew had been assaulted under similar circumstances earlier that year. (Tr. 97.) Kennedy met Gaughan at the Justice Center and later identified LeBron as his assailant. (Tr. 216-220.)
Kennedy testified that he went to the Six-Twenty on January 14, 1981 and met Tony Santos there. Tony introduced him to Juan LeBron. (Tr. 199.) After talking for several hours, the three men left to go to Santos' apartment. Kennedy got into his own car accompanied by LeBron. (Tr. 202.) Kennedy parked near West 25th and Seymour Avenue and walked up a nearby alley. Suddenly, LeBron jumped him from behind, knocked him down, and began choking him. He pulled out a folding knife and brought it toward Kennedy's face. Kennedy grabbed for the knife, cutting himself in the process. (Tr. 204-205.) LeBron took Kennedy's wallet, gold chain and coat and left him lying in the alley. (Tr. 205-206.)
Kennedy went home and then went with his mother to Southwest General Hospital for treatment. (Tr. 208.) Because he did not want his mother to know about his homosexual activities, he told the hospital officials only that he had been in a fight. (Tr. 209.) On the following day, however, he told David Gaughan about the incident and also reported it in full to the Cleveland Police. (Tr. 211.)
Tony Santos verified that, on the dates in question, he met LeBron and introduced him to Gaughan and Kennedy. (Tr. 302, 306.) However, he contended that LeBron's appearance had changed so radically from August 31, 1980 to January 14, 1981 he did not even recognize the appellant as being the same person. (Tr. 306.) On the first date, LeBron was clean shaven and neatly dressed, but on the second occasion, he was dirty and had an unkempt beard. (Tr. 304, 307.)
LeBron testified on his own behalf, contending that although he was with Gaughan and Kennedy on the dates in question, he committed no crimes. He testified that when he went to Gaughan's apartment on August 31, 1980, Gaughan made unwanted sexual advances. LeBron fought Gaughan off, informed him that he was not homosexual, and left. (Tr. 419.) He also denied assaulting and robbing Robert Kennedy. (Tr. 419.)
On July 14, 1980, the jury returned a verdict of guilty as to one count of aggravated robbery upon David Gaughan, and one count each of felonious assault and aggravated robbery upon Robert Kennedy. The appellant was found to be not guilty of the remaining counts.
From this judgment, the appellant filed a timely appeal and now asserts the following assignments of error for our consideration:
I. THE LIMITATIONS THE TRIAL COURT PUT UPON APPELLANT'S CROSS-EXAMINATION DENIED APPELLANT HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION.
At the trial of this matter, David Gaughan testified that he had three prior convictions for grand theft. In each instance, Gaughan stole merchandise from stores for the purpose of reselling it to support his drug habit. (Tr. 120.) Gaughan further testified that he later received treatment for his habit and stopped using drugs prior to the incident involving LeBron. (Tr. 120.)
The defense attorney sought to question Gaughan concerning an additional criminal case in which Gaughan pled guilty to several drug law violations but was awaiting sentencing. (Tr. 50.) However, the trial court forbade this line of questioning based upon the reasoning of State v. Henderson (1977), 58 Ohio St. 2d 271. In that case, the Supreme Court held that, although an individual has entered a plea of guilty to an offense, he has not actually been "convicted" until he is sentenced. Id.
In his first assignment of error, the appellant asserts that the trial court erred in prohibiting him from impeaching Gaughan on the guilty pleas. We agree.
Evidence Rule 609(A) provides that a witness's credibility may be attacked by evidence that he has previously been convicted of a crime. The Henderson decision has no application to this rule as this Court has previously stated:
In addition, under the case of State v. Gavin (1977), 51 Ohio App. 49, Gaughan was open to questioning due to his potential bias. The possibility of bias is said to exist whenever a witness has "potential trading assets" to barter with the state such as where he is awaiting sentencing in a separate prosecution. Id. at 53. Therefore, the trial court also erred in denying impeachment of Gaughan under these grounds.
However, although we agree that the court did err in limiting the appellant's impeachment of Gaughan, we must conclude that, in light of the entire record before us, this error was harmless. Because Gaughan's credibility was attacked with his prior theft offenses, he was not presented as being a witness with a spotless record. Moreover, his prior experiences with drugs were explored in detail. Under these circumstances, evidence of an additional conviction would not have been of much significance. Finally, the evidence of the appellant's guilt was overwhelming. Accordingly, the error committed below was not prejudicial.
The appellant further maintains that the trial court erred in limiting its cross-examination of Gaughan and Kennedy concerning their sexual history. The appellant asserts that he should have been permitted to closely interrogate these witnesses concerning their sexual relationship with other men and with one another.
We are unable to see merit in this argument. Admissible evidence is limited to relevant evidence which is defined as follows:
It is our conclusion that the unrelated sexual history of homosexual witnesses is of no more relevancy in any given case than is the sexual history of heterosexual witnesses. In the case at hand, the sexual past of Gaughan and Kennedy was of no discernible consequence to the facts at issue. However, the potential prejudicial impact of such evidence was substantial. As such, the trial court properly limited the scope of cross-examination on that issue. See Evid. R. 403.
Finally, the appellant asserts that the trial court unduly limited its examination of the prosecutorial witnesses concerning their contacts with the Cleveland Police in this case. In his brief, the appellant cites numerous instances of the error complained of. A careful review of the record does not support the appellant's complaint. It is evident to us that the limitations placed upon cross-examination by the trial court were either designed to prevent the admission of hearsay...
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