COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59676, 59677 CITY OF CLEVELAND : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION MICHAEL ROBINSON : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 19, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 90-CRB-696(A-B) JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Mark A. McClain Richard A.F. Mendelsohn Chief Prosecuting Attorney 30432 Euclid Avenue, No. 105 City of Cleveland Wickliffe, Ohio 44092 By: Fred C. Crosby Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Michael Robinson was convicted of criminal damaging and resisting arrest following a bench trial in Cleveland Municipal Court. After pleading no contest, he also was found guilty of fleeing and eluding, no driver's license and two traffic light violations. In five assignments of error/1\ Robinson raises issues of prosecutorial misconduct, insufficient evidence and improper sentences and fines. Upon review, we affirm. Michael Robinson, who had three passengers in his car, was involved in a high-speed chase with Cleveland police officers on January 8, 1990. After eluding officers for some blocks, during which time he disregarded several traffic signals, Robinson finally brought his vehicle to rest in his own driveway. Patrolmen Wilbert Cooper and John Mantifel of the Cleveland Police Department testified they pursued Robinson and pulled up behind his parked vehicle. They approached defendant's car with their weapons drawn, instructing the occupants to raise their hands. Although his passengers complied, the defendant initially refused to do so. The patrolmen ordered Robinson and his male passenger out of the vehicle and instructed them to lie face down on the ground. Again the defendant refused to obey. After repeated requests Robinson alighted from the car, cursed at the policemen and, after some delay, assumed a position face down on the driveway. The officers then searched and handcuffed him. As the police started lifting Robinson, both /1\ See Appendix. - 2 - patrolmen stated he broke free from Patrolman Cooper, who was holding the defendant's arm, and ran into Patrolman Mantifel, who was standing several feet away. According to both officers, the impact broke the stock of a shotgun held by Mantifel. Defendant's version of the incident differs significantly. According to Babbette Heard and Cynthia Betram, who were Robinson's passengers, as police raised defendant from the gravel driveway, he lost his footing and told the police, "This is my house." Mantifel allegedly told Robinson to, "Shut the f up" and struck the defendant in the back with his shotgun. Robinson was sentenced as follows: 1) criminal damaging: ninety day suspended sentence, seven hundred fifty dollar fine; 2) resisting arrest: ninety day suspended sentence to run consecutively with the other sentences, seven hundred fifty dollar fine; 3) fleeing and eluding: one hundred eighty day sentence, one thousand dollar fine; 4) no driver's license: one hundred eighty day suspended sentence, probation, one thousand dollar fine, five hundred dollars suspended; 5) traffic violations: two one hundred dollar fines. In his first and second assignments of error, defendant essentially raises the same issues, which we will consolidate in this review. - 3 - Robinson argues he was unfairly prejudiced by prosecutorial misconduct in opening statements and in the course of trial. He contends the prosecutor impermissibly spoke of defendant's gang involvement and reputation as a drug dealer in his opening statement to the court. He further urges the city should not have provided the court with defendant's arrest record before trial. The test to be applied in reviewing opening statements is set forth in Maggio v. City of Cleveland (1949), 151 Ohio St. 136, which states: "Counsel should be accorded latitude by the trial court in making his opening statement, but when he deliberately attempts to influence and sway the jury by a recital of matters foreign to the case, which matters he knows or ought to know cannot be shown by competent or admissible evidence, or when he makes a statement through accident, inadvertence or misconception which is improper and patently harmful to the opposing side, it may constitute the basis for ordering a new trial or for the reversal by a reviewing court of a judgment favorable to the party represented by such counsel." Id. paragraph two of syllabus; See, also, Caserta v. Allstate Insurance Co. (1983), 14 Ohio App. 3d 167, 169. During opening argument the prosecutor stated: "Judge, I'm going to show evidence today that the defendant is a gang member, that the defendant is a drug dealer, that he's known to these police officers in this area." Defense counsel failed to make a timely objection to these remarks. While questioning Patrolman Cooper, the prosecutor, over defense objection, elicited testimony of defendant's reputation as a drug dealer and gang member. - 4 - Since this was a bench trial, the concerns of unfair influence or prejudice caused by counsel's comments as applied to juries do not apply. In a bench trial, the judge is presumed capable of drawing the correct conclusion. Cf. State v. Frazier (1991), 61 Ohio St. 3d 248, 254. We also recognize a trial court has broad discretion in admitting evidence and will be reversed only for an abuse of discretion where the defendant has suffered material prejudice. State v. Long (1978), 53 Ohio St. 2d 91, 98. The prosecutor's opening comments and Officer Cooper's testimony concerning defendant's alleged drug and gang activity were irrelevant to the charges before the court. We do not find, however, that they were patently harmful to the defendant. In light of the proper evidence admitted to prove defendant's guilt beyond a reasonable doubt, we hold defendant would have been found guilty absent the prosecutor's references or the officer's testimony on this point. Thus, we conclude that no substantial right of the defendant was affected nor did a manifest miscarriage of justice occur. Robinson also objects to the trial court's viewing of his arrest record before trial. Defendant made a discovery request, seeking inter alia, "a copy of the defendant's prior record." According to the prosecutor, he responded to this request and "adhered to the common practice within this jurisdiction" by filing his full response with the court. - 5 - Again, we find, in light of the fact that this was a bench trial, the judge was capable of drawing the correct conclusion regarding defendant's criminal record. Frazier, supra. Since the record itself was not presented as evidence, it could not be considered by the judge in determining the guilt of defendant. We must presume that, in regularity, it was not. We also find that defendant was not, on the basis of the properly admitted evidence, materially prejudiced by any notice the judge might have taken of his criminal record. Accordingly, the first and second assignments of error are overruled. In his third assignment, Robinson challenges the sufficiency of the evidence as to his resisting arrest and criminal damaging convictions. He argues the evidence is insufficient to convict him on the resisting arrest charge because of the conflicting versions of what occurred and because of the close proximity between the defendant and the patrolman, making it unlikely defendant "charged" him. Robinson also argues the evidence is insufficient on the criminal damaging charge since the prosecution did not produce the shotgun, pictures or bills for its repair. The defendant posits he could not have broken the shotgun's "draft" in such a confined space. - 6 - Crim. R. 29(A) states that the trial court shall enter a judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses." In State v. Jenks (1991), 61 Ohio St. 3d 259, the Ohio Supreme Court adopted Jackson v. Virginia (1979), 443 U.S. 307, in evaluating motions for acquittal. The Jenks court stated: "The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jackson v. Virginia, supra. *** Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. at 273. Cleveland Codified Ordinance Section 615.08 provides: "615.08 Resisting Arrest. "(a) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another. "(b) Whoever violates this Section is guilty of resisting arrest, a misdemeanor of the second degree." Cleveland Codified Ordinance Section 623.02 provides in pertinent part: "623.02 Criminal Damaging or Endangering. "(a) No person shall cause, or create a substantial risk of physical harm to any property of another without his consent: "(1) Knowingly, by any means; *** "(b) Whoever violates this section is guilty of criminal damaging or endangering. *** If violation of this section creates a risk of physical harm to any person, criminal damaging or endangering is a misdemeanor of the first degree." After reviewing the record, we find that evidence has been offered going to each of the elements of both charges so as to - 7 - establish defendant's guilt beyond a reasonable doubt. As to the discrepancies between the testimony of the state's witnesses and the witnesses for the defendant, we note that the evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. Clearly, the trial judge chose to believe the state's version as to what transpired after the defendant was handcuffed. We will not upset this determination, absent an abuse of discretion. As for the prosecutor's failure to introduce the broken shotgun, pictures of it or repair bills, defendant has not cited any case law to mandate introduction of this evidence, nor does our review disclose any. Thus, we find the testimony of the patrolmen was sufficient by itself to establish the shotgun was damaged. This assignment of error is not well taken. In the fourth and fifth assignments of error, Robinson challenges the court's imposition of maximum sentences and fines in contravention of R.C. 2929.22, which provides in part: "(A) In determining whether to impose imprisonment or a fine, or both, for a misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk, the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, and the ability and resources of the offender and the - 8 - nature of the burden that payment of a fine will impose on him. "(B) The following do not control the court's discretion, but shall be considered in favor of imposing imprisonment for a misdemeanor; "(1) The offender is a repeat or dangerous offender. *** "(C) The criteria listed in section 2929.12 of the Revised Code, favoring shorter terms of imprisonment for felony, do not control the court's discretion, but shall be considered against imposing imprisonment for a misdemeanor. "(D) The criteria listed in divisions (B) and (C) of this section shall not be construed to limit the matters which may be considered in determining whether to impose imprisonment for a misdemeanor. "(E) The court shall not impose a fine in addition to imprisonment for a misdemeanor, unless a fine is specially adapted to deterrence of the offense or the correction of the offender, the offense has proximately resulted in physical harm to the person or property of another, or the offense was committed for hire or for purpose of gain. "(F) The court shall not impose a fine or fines which, in the aggregate and to the extent not suspended by the court, exceeds the amount which the offender is or will be able too pay by the method and within the time allowed without undue hardship to himself or his dependents, or will prevent him from making restitution or reparation to the victim of his offense." A trial court has a mandatory duty to weigh the misdemeanor sentencing factors provided in the statute and failure to do so amounts to an abuse of discretion. Maple Heights v. Dickard (1986), 31 Ohio App. 3d 68; Cincinnati v. Clardy (1978), 57 Ohio App. 2d 153. R.C. 2929.22(A) requires the trial judge to consider several aggravating factors, such as the risk that the offender will commit another offense, the need to protect the public, and the nature and circumstances surrounding the offense. In the present case, the trial judge reviewed defendant's arrest record, which - 9 - listed inter alia, four drug related arrests, the unauthorized use of a motor vehicle and assault. Although the record is unclear as to whether any of the arrests led to convictions, a trial court during sentencing may weigh such factors as prior arrests and charges even though they did not lead to convictions. Maple Heights v. Dickard, supra. The defendant also admitted driving without a driver's license, fleeing from the police and pleaded no contest to two traffic violations. Based on the sequence of events, it was clear defendant operated his vehicle recklessly; deliberately eluded police; defied the officers in their attempts to arrest him; was abusive and recklessly damaged city property. We also note that the defendant was demonstrably a repeat and dangerous offender, as set forth under subsection B. Absent a contrary showing, a judge is presumed to have followed the applicable statute. State v. Gould (1980), 68 Ohio App. 2d 215. Defendant has not made such a demonstration in the present case. We conclude that the trial court reasonably acted within the statutory framework in sentencing defendant to the maximum under each count. See, also, State v. Cole (1982), 8 Ohio App. 3d 416 (Where the maximum sentence imposed for a misdemeanor was not clearly inappropriate to the seriousness of the offense, it cannot be said, in the face of a silent record, that the trial court did not consider the proper factors enumerated in R.C. 2929.22 when imposing sentence). - 10 - As to the trial judge's imposition of the maximum fine, R.C. 2929.22(E) states a fine may be imposed in addition to imprisonment upon conviction of a misdemeanor offense where the fine is "specifically adapted to deterrence of the offense or correction of the offender." See State v. Krower (1988), 49 Ohio App. 3d 133. Moreover, the imposition of the maximum fine does not constitute an abuse of discretion where no time limit was imposed for payment of the fine, as was the case in this adjudication. Cole, supra. We find there is nothing in the record to indicate the fine was imposed for any reason other than deterrence or correction. Accordingly, the fourth and fifth assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. - 11 - 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 Common Pleas Court 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. JOHN F. CORRIGAN, P.J., JAMES D. SWEENEY, J., CONCUR. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 12 - APPENDIX Appellant's assignments of error are: I "The trial court erred to the prejudice of appellant's right to a fair trial by permitting the prosecutor to misconduct himself by bringing in material wholly irrelevant to this proceeding and at improper stages of the proceeding." II "The trial court erred to the prejudice of appellant when it reviewed appellant's record prior to resolving the issue of guilt or innocence and further by receiving opinion testimony on matters outside the scope of this case." III "The trial court erred in determining that the evidence establishes the offenses charged beyond reasonable doubt." IV "The trial court erred when it imposed maximum consecutive sentences on three charges totaling fifteen months." V "The trial court erred when, in addition to jail time, it imposed $2,450.00 of fines in addition plus costs and restitution." .