COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59279 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION KEVIN SPILLANE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-246,376 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor BLAISE THOMAS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: AVERY H. FROMET Attorney at Law 28001 Chagrin Boulevard Cleveland, Ohio 44122 - 2 - FRANCIS E. SWEENEY, J.: After a jury trial, defendant-appellant, Kevin Spillane, was found guilty of one count each of breaking and entering (R.C. 2911.13) and theft (R.C. 2913.02). Appellant now timely appeals, raising four assignments of error for our review. For the fol- lowing reasons, we affirm the appellant's conviction. ASSIGNMENT OF ERROR I THE COURT ERRED AND DEFENDANT'S RIGHTS WERE ABRIDGED DUE TO THE COURT'S FAILURE TO GRANT DEFENDANT'S REQUEST FOR A CONTINUANCE IN ORDER TO PROPERLY REVIEW DISCOVERY WHICH HAD BEEN GIVEN DEFENDANT'S COUNSEL LESS THAN 24 HOURS BEFORE TRIAL. Appellant contends the trial court abused its discretion in denying appellant's request for a continuance of the trial to review the state's response to appellant's discovery request received one day prior to trial. This argument is without merit. The grant or denial of a continuance is within the sound discretion of the trial court. State v. Holmes (1987), 36 Ohio App. 3d 44. When evaluating a motion for continuance, the court should consider the following: *** the length of the delay requested; whether other continuances have been re- quested and received; the inconvenience to litigants, witnesses, opposing counsel and - 2 - the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful or contrived; whether the defen- dant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. Id., at syllabus. In the present case, appellant's counsel was afforded infor- mal discovery at his pretrial held on January 3, 1990. Appellant received a response to his formal discovery request a day prior to trial, but did not move for a continuance until the day of trial. Appellant alleged need for a delay was that the state's response made him aware for the first time that tools allegedly stolen by appellant did not contain his fingerprints. Under the circumstances, we cannot find that the trial court abused its discretion in denying the motion for a contin- uance. Information that the tools did not contain appellant's fingerprints went to the ability of the state to prove the ele- ments of the crime and would not necessitate a need for addi- tional time to prepare for trial. The record, in fact, shows that the denial of a continuance had no adverse impact on appel- lant as appellant's counsel objected to the admission of the tools at the appropriate time. A delay would have merely caused an unnecessary inconvenience to witnesses, the state and the court. Accordingly, Assignment of Error I is overruled. - 3 - ASSIGNMENT OF ERROR II THE COURT ERRED AND DEFENDANT WAS PREJUDICED BY THE COURT'S IMPROPER ADMISSION OF THE PHYSICAL EVIDENCE WITHOUT THE STATE FIRST LAYING A PROPER FOUNDATION FOR ITS INTRODUC- TION. Appellant argues the trial court erred in allowing a knife and tape measure found on appellant to be admitted into evidence where they were not properly authenticated under Evid. R. 901. Specifically, appellant argues that no evidence was presented that the knife and tape measure were owned by the victim, Mid- land Hardware Store. This argument is without merit. Authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App. 3d 155. The admis- sion or exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St. 3d 173. In the present case, testimony by the president and several employees of the victim, Midland Hardware Store, was adduced that the utility knife and Stanley tape measure were of the same type used in the store. The appellant was arrested after break- ing into the store, and, upon being patted down, the utility knife and tape measure were found on his person. Therefore, we find sufficient circumstantial evidence was presented to support a finding that the tools were owned by Midland Hardware Store. - 4 - Accordingly, the trial court did not err in allowing the admission of this evidence. Assignment of Error II is overruled. ASSIGNMENT OF ERROR III THE COURT ERRED AND THE DEFENDANT WAS PREJU- DICED DUE TO THE COURT'S ABUSE OF DISCRETION IN RESTRICTING DEFENSE COUNSEL'S CROSS EXAMINATION OF THE STATE'S WITNESSES. Appellant argues the trial court erred in denying appel- lant's counsel's cross-examination of Officer Lake regarding whether appellant's entry into the premises could have been made for the purpose of shooting heroin and not to commit a theft offense. This argument is without merit. Evid. R. 611 provides that cross-examination shall be per- mitted on all relevant matters. Evid. R. 401 defines relevant evidence as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evi- dence. State v. Lyles (1989), 42 Ohio St. 3d 98. The scope of cross-examination under Evid. R. 611 lies within the sound dis- cretion of the trial court. State v. Acre (1983), 6 Ohio St. 3d 140. In the present case, appellant's counsel attempted to estab- lish a theory that appellant was a drug user who entered the premises to shoot heroin and not to commit theft. This theory was based on evidence that spent matches were found on the - 5 - premises and that a syringe was found on appellant. However, the officer testified that the syringe was not an indication that appellant was a drug user. Appellant attempted to elicit testi- mony from the officer that the condition of burnt matches on the premises was consistent with drug abusers who enter buildings to use drugs. Since this line of questioning was irrelevant as to whether appellant committed a theft offense, we find the trial court did not abuse its discretion in denying questioning about drug abusers on the cross-examination of Officer Lake. Assignment of Error III is overruled. ASSIGNMENT OF ERROR IV THE COURT ERRED AND THE DEFENDANT WAS PREJU- DICED DUE TO THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY IN ALL THE ELEMENTS OF THE CRIME OF WHICH THE DEFENDANT WAS CHARGED. Appellant argues the trial court erred in failing to define the term "obtain or exert control" to the jury as charged in the count of theft (R.C. 2913.02). This argument is without merit. The record demonstrates appellant did not object to the instruction given by the court to the jury. In a criminal case, a party does not waive his objections to the court's charge by failing to formally object thereto where (1) the record affir- matively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute and (2) the requesting party has been unsuccessful in obtaining the inclusion - 6 - of that law in the trial court's charge to the jury. State v. Wolons (1989), 44 Ohio St. 3d 64, syllabus. In the present case, appellant gave the court a misleading and incomplete definition of "obtain or exert control" in his proposed written jury instructions. Appellant stated the follow- ing: In order to prove that the defendant "ob- tain[ed] or exert[ed] control over" the property the state must prove that there was some "asportation" or carrying away of the property. Where the property is not removed from the complete possession of the owner, there can be no complete severance of the property from the possession of the owner, and this element has not been proven, Eckels v. State, 20 OS 508. Appellant's Proposed Jury Instruction No. 4. This instruction infers that for appellant to "obtain or exert control over" the property, appellant had to leave the premises with it to com- pletely remove it from the owner's possession. Appellant argues that since no evidence existed of an "asportation" or carrying away by appellant, the failure to define the term prejudiced appellant. The correct statement of the law would be as follows: The least removing of the property taken, with a purpose to deprive the owner of that property, is sufficient exertion of control over property. The thief must obtain entire and absolute possession of the property only for an instant. The goods need not be re- moved from the premises of the owner. The goods need not be retained in the possession of the thief. - 7 - State v. Williams (1984), 16 Ohio App. 3d 232. Since appellant did not object to the court's charge to the jury and did not apprise the court of the correct law, we find appellant waived any objections to the court's instructions to the jury. Further- more, the evidence overwhelmingly demonstrated appellant "ob- tained or exerted control over" property as tools were found on his person and stacked on a table where ordinarily they did not belong. Thus, we cannot find that appellant was prejudiced by the failure of the court to define the term to the jury. Accordingly, Assignment of Error IV is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. JOHN F. CORRIGAN, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .