State v. Martin Ray Adams
| Decision Date | 08 June 1995 |
| Docket Number | 94 CA 2041,95-LW-3792 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. MARTIN RAY ADAMS, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Ben A. Rainsberger, Assistant Public Defender 15 North Paint Street, Suite 101, Chillicothe, Ohio 45601-3116.
COUNSEL FOR APPELLEE: John B. Street, Assistant Prosecuting Attorney 20 South Paint Street, Chillicothe, Ohio 45601-3116.
DECISION
This is an appeal from a judgment of conviction and sentence entered by the Ross County Common Pleas Court. The jury found Martin Ray Adams, defendant below and appellant herein guilty of forgery in violation of R.C. 2913.31.
Appellant assigns the following errors:
On December 6, 1993, someone stole Ruby Perry's purse from her shopping cart while she was Christmas shopping at a K-mart Department Store in Columbus, Ohio. One of the items in her purse was her husband's paycheck. The paycheck had not been endorsed.
On December 7, 1993, appellant entered the Waterbeds & Stuff Department Store in Chillicothe, Ohio, and offered the stolen check as payment for a purchase. Someone had endorsed the check by forging Perry's signature. Amy Debord, the store manager, accepted the check and requested identification from appellant. Appellant told her, however, that he did not have any identification. Debord recognized appellant as a frequent shopper at Waterbeds & Stuff, and agreed to accept the check if appellant wrote his social security and telephone numbers below the endorsement on the check. Appellant wrote non-existent social security and telephone numbers on the check.
When the bank refused to honor the check, Debord contacted the Ross County Sheriff's Department. Several days later, Debord received an anonymous telephone call identifying appellant as the person who tendered the check. Debord contacted the Sheriff's Office and relayed this information to Lt. David Large, the investigating officer.
Lt. Large asked Debord to come to the Sheriff's Office to look at a photograph line-up. Debord selected appellant's photograph as the photograph of the person who had given her the stolen check.
Appellant was arrested and charged with one count of forgery in violation of R.C. 2913.31. On June 27, 1994, the jury found appellant guilty as charged.
Appellant filed a timely notice of appeal.
In his first assignment of error, appellant asserts that the trial court erred by admitting Debord's in-court identification of appellant as the person who tendered the stolen check. Appellant contends that the prosecution failed to lay a sufficient foundation for the identification testimony.
Initially we note that at the point during the trial when the prosecution asked Debord to identify the person she observed in the store purchasing the merchandise with the Perry check, appellant objected. Appellant did not, however, state a specific ground for the objection. We note that Evid.R. 103 provides in pertinent part:
The purpose of this rule is, inter alia, to adequately apprise a trial court of the nature of the claim of error in order to facilitate a ruling on the objection and to provide an opportunity for corrective action.
In the instant case, we find that appellant did not comply with Evid.R. 103 when he objected to the identification testimony. Appellant did not state the specific ground of his objection and the specific ground was not apparent from the context. Furthermore, when we consider the merits of appellant's argument regarding the identification testimony, we find no error. At this juncture, we note that the admission or exclusion of relevant evidence is within the sound discretion of the trial court and its decision to admit or to exclude such evidence cannot be reversed absent a showing of an abuse of that discretion. State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1671; State v. Finnerty (1989), 45 Ohio St.2d 104, 543 N.E.2d State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343. An abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715; State v Montgomery (1991), 61 Ohio St.3d 410, 575 N.E.2d 167. When applying the abuse of discretion standard, a reviewing court is not free to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 359 N.E.2d 1301.
In his appellate brief, appellant asserts that the prosecution failed to lay a sufficient foundation for Debord's identification testimony. An in-court identification of an accused is proper if the witness' identification is based upon independent observation and recollection of the accused by the witness. See, generally, State v. Jackson (1971), 26 Ohio St.2d 74, 269 N.E.2d 118. In order to suppress identification testimony, there must be " * * * a very substantial likelihood of irreparable misidentification." Simmons v. United States (1968), 390 U.S. 377; State v. Perryman (1976), 49 Ohio St.2d 14, 358 N.E.2d 1040, vacated on other grounds (1978), 438 U.S. 911.
Appellant contends that the factors outlined in State v. Moody (1978), 55 Ohio St.2d 64, 377 N.E.2d 1008 should be analyzed when determining whether a proper foundation exists for a witness' in-court identification. See, also, Neil v. Biggers 409 U.S 188; Foster v. California (1969), 394 U.S. 440. We note however, that unlike the adequate foundation issue presented in the case sub judice, the issue in Moody involved the reliability and admissibility of an in-court identification after the witness participated in a suggestive and flawed pretrial identification procedure. Nevertheless, we find the factors mentioned in Moody to be instructive. The Moody court listed several factors to consider when evaluating identification testimony, including the witness': (1) opportunity to view the criminal; (2) degree of attention; (3) accuracy of the description; and (4) level of certainty. See, also, State v. Merrill (1984), 22 Ohio App.3d 119, 489 N.E.2d 1057.
In the case sub judice, we find that Debord's identification of appellant is reliable and there is no substantial likelihood of misidentification. Debord had ample opportunity to observe appellant at close range. Debord testified that appellant was a frequent shopper at Waterbeds & Stuff. She recognized him on the day he offered her the stolen check and that was the reason she accepted the check from him without identification. Several days after learning that the check was stolen she received an anonymous telephone call identifying appellant as the person who gave her the check. Because she thought she recognized appellant's name, she reviewed old store receipts. From these receipts, she was able to connect appellant's name to his face. She provided this information to Lt. Large. During the photo line-up, she identified appellant as the person who tendered the check. At trial, she identified appellant as the person who tendered the check. Debord's unwavering and consistent testimony indicated she was a reliable witness. We note that appellant raises no contention that his identification was improperly influenced by an unduly suggestive pretrial identification procedure.
Although the prosecution asked Debord to identify appellant in court before Debord gave testimony laying a foundation for an in-court identification, we find that Debord's testimony, when viewed in its entirety, firmly establishes the foundational requirements for an in-court identification. See, generally, Moody, supra. We find that the trial court did not abuse its discretion by admitting the identification testimony into evidence.
Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.
In appellant's second assignment of error, appellant asserts that the trial court erred when it overruled his Crim.R. 29 motion for acquittal at the close of the state's evidence. In particular, appellant contends that the prosecution did not prove that appellant knew the check was forged. Appellant notes that the person who cashed the check could have received the check in good faith from the actual forger, without any knowledge that the instrument was indeed forged.
When reviewing a trial court's denial of a defendant's Crim.R. 29(A) motion for acquittal, an appellate court must construe the evidence in a light most favorable to the state and determine whether reasonable minds could reach different conclusions concerning whether the evidence proves every element of the crime beyond a reasonable doubt. The test used in reviewing the sufficiency of the evidence is similar to the test used in reviewing a denial of a motion for judgment of acquittal. See State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus; State v. Rogers (1990), 68 Ohio App.3d 4, 9, 587 N.E.2d 381, 385, motion for leave to appeal o...
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