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State v. Flemming9/5/1996
termining a fact in issue." Lee v. Baldwin (1987), 35 Ohio App.3d 47, 49. Opinion testimony, moreover, is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. Evid.R. 704.
Officer Reuse's opinion that Batista was the victim of a robbery was based on his actual observation of Batista's body on the bridge, along with the personal items strewn about and in close proximity. However, when the proffered opinion answers the very question that ultimately must be determined by the factfinder, and the factfinder is capable of reaching a conclusion without the opinion, a trial court does not abuse its discretion in disallowing the testimony. Bostic v. Connor (1988), 37 Ohio St.3d 144, paragraph three of the syllabus; McQueen v. Goldey (1984), 20 Ohio App.3d 41, 47. In light of the evidence presented at trial, the jury was capable of concluding that Batista was a robbery victim without Reuse's opinion. Regardless of whether the opinion constituted impermissible lay opinion reaching an ultimate issue in the case, appellant failed to object to the testimony and he himself admitted to Det. Kunz that he only meant to rob Batista. This court, therefore, cannot find that, absent Reuse's opinion, the outcome of the trial clearly would have been otherwise. Campbell.
The second instance cited by appellant as denying him a fair trial is when the state questioned Officer Brantley about gangs and gang initiation activities. The questioning focused on the types of headgear worn by gang members in reference to the items removed from appellant's vehicle. It also addressed how individuals engage in criminal activity in front of the police as an initiation rite.
All relevant evidence is admissible under Evid.R. 402. 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 than it would be without the evidence." Finally, Evid.R. 403 provides that although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
We admit that the state's delving into gang activity was minimally relevant to this case. The testimony offered a motive as to why appellant and Gant involved themselves in a criminal act while police officers were visibly in the area. However, defense counsel elicited from Officer Brantley during cross-examination that there was no evidence that the articles recovered from appellant's vehicle were gang-related or that appellant was in a gang or was seeking gang membership. In light of the lack of evidence of appellant's gang membership, and the testimony thereto, this court does not find that the jury could have been confused or misled by the state's questioning, nor that appellant was unfairly prejudiced by it. Evid.R. 403.
As a final note, appellant initiated a conversation during cross-examination about Gant's involvement with a gang when questioned as to whether Gant knew his way around the west side. Appellant willingly responded to the state's continued questioning about the matter. If any prejudice resulted to appellant from gang-related testimony, it would be from his voluntary relinquishment of information concerning the specific membership of Gant's, and not the state's periphery and general examination of Officer Brantley.
Appellant's last complaint about inadmissible evidence is that the state should not have questioned Officer Oliver about the commendation he and Williams were to receive as a result of their performance on October 23, 1993. The record reveals defense counsel'
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