COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59549 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION CEDRIC RAMSEY : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. 241978 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Almeta Johnson Cuyahoga County Prosecutor 13308 Euclid Avenue By: Deborah Naiman Cleveland, Ohio 44112 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - JOHN V. CORRIGAN, J.: Cedric Ramsey timely appeals his conviction for robbery (R.C. 2911.02). He raises five assignments of error: I. "The trial court committed reversible error by failing to instruct the jury on the lesser included offense of attempted theft by threat." II. "Defendant was denied his sixth amendment right to effective assistance of counsel." III. "The trial court erred in denying the appellant's motion for judgment of acquittal made at the close of the state's case." IV. "There is insufficient evidence as a matter of law to support the robbery conviction." V. "The trial court committed reversible error in failing to instruct the jury on the affirmative defense of abandonment." Upon a review of the record, we affirm. Annette Ritchie, a teller at the First National Bank in Richmond Heights, testified that on June 28, 1989 at 1:30 p.m. the defendant approached her window and stated, "This is a stick-up. Give me your money." According to Ritchie, the defendant then put his hand down towards his pocket. The teller told the jury she thought he had a gun and she was "very much" afraid. When Ritchie asked the defendant how much money he wanted, the defendant stated $400 in pennies. Ritchie told the defendant she did not have that amount in pennies and would have to check with the head teller. After speaking with the head - 2 - teller, Ritchie told the defendant the bank did not have $400 in pennies. The defendant asked for $300 in pennies and then $200 in pennies. Ritchie continued to explain she could not meet his demands and she asked the defendant whether he wanted something else. The defendant requested quarters and Ritchie gave him $3 in quarters. In exchange, the defendant gave Ritchie $5 prompting the teller to give him $2 in other change. The defendant left the bank and Ritchie recorded his auto's license plate as he drove away. Richmond Heights police officer Mickey Keri received a radio broadcast concerning the robbery. At the bank he obtained a description of the suspect and his automobile. Keri located the defendant's car outside a Radio Shack store in the parking lot of a nearby shopping plaza. Richmond Heights detective Michael LoPresti subsequently arrested the defendant inside the store. At the time of his arrest, the defendant had $446 in cash. The defendant admitted telling Ritchie, "This is a stick-up" but he denied any intention to rob the bank. He told the jury that, "I guess I was just being stupid." According to the defendant, he did not think Ritchie took him seriously and he knew the bank would not have $400 in pennies. The defendant explained he placed his hand in his pocket to keep the $446 from falling out. The defendant also testified that he suffers from a gender dysphoria and would prefer to be a woman. The defendant explained he was taking female hormones which caused him to be - 3 - confused. In addition, the defendant claimed he was taking the drugs Prozac and Dezzerol. Howard Gordan, a social worker at the Cleveland Psychiatric Institute, testified he treated the defendant in late 1989 for depression brought on by the cancellation of his sex change operation. Gordan described the defendant as non-violent. John Shen, a clinical psychologist, also treated the defendant for depression and the gender identity disorder. Shen stated the defendant was hospitalized for these problems in January, April, and November of 1989. The psychologist further explained that poor social orientation frequently accompanies depression and that the defendant was apparently confused from his psychological problems. Finally, Earline Brooks, a friend of the defendant, testified to his good character and non-violent personality. In his first assignment of error the defendant asserts the court should have instructed the jury on the lesser included offense of attempted theft by threat. The defendant's fifth assignment contends the court erred by not charging the jury on the defense of abandonment. It is well-established that a defendant waives his right to assign as error the failure to give a jury charge unless he objects at trial. Crim R. 30; State v. Long (1978), 53 Ohio St. - 4 - 2d 91; State v. Underwood (1983), 3 Ohio St. 3d 12. Furthermore, the failure to give a jury instruction does not constitute plain error unless, "but for the error, the outcome of the trial clearly would have been otherwise." Id., syllabus. The record demonstrates the defendant failed to request a jury instruction on the lesser included offense or the abandonment defense. Thus, the defendant waived any error in the jury charge absent plain error. Assuming, arguendo, the defendant was entitled to jury instructions on attempted theft by threat and abandonment, the lack of such instruction does not constitute plain error in this case. Ritchie testified that the defendant stated, "This is a stick-up. Give me your money." and that the defendant gestured towards his pocket where Ritchie feared he had a gun. In light of this evidence, we cannot say that, but for the failure to give the instructions, the jury's verdict would have been different. The defendant's first and fifth assignments of error are overruled. In his second assignment of error the defendant asserts he was denied effective assistance of trial counsel. The federal test for determining whether a defendant was denied effective assistance of counsel is whether the attorney's "conduct so undermined the proper functioning of the adversarial - 5 - process that the trial cannot be relied on as having produced a just result." Strickland v. Washington (1984), 466 U.S. 688. In Ohio, the test is whether the defendant, under all circumstances, has a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St. 2d 71, paragraph four of the syllabus. To prove a claim of ineffective assistance of counsel, the defendant must demonstrate his counsel's performance was deficient and "that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St. 3d 136. There is a strong presumption defense counsel performed competently. Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. The defendant initially argues his attorney should have obtained a copy of Ritchie's preliminary hearing testimony in order to effectively impeach her at trial. At the outset, we note this testimony is not a part of the trial record and we cannot determine whether it contains any grounds for impeaching Ritchie. On this basis alone, the defendant has failed to demonstrate any prejudice from his attorney's performance. Bradley, supra. Further, defense counsel did cross-examine Ritchie about her preliminary hearing testimony. Counsel asked Ritchie whether she recalled stating at the earlier hearing that she was not afraid during the robbery attempt. Ritchie averred she could not recall such a statement. The defendant next claims his attorney's failure to request an in camera inspection of Ritchie's police statement constitutes - 6 - ineffective assistance of counsel. This statement also is not a part of the record and we will not speculate as to whether it contained any information helpful to the defense. Thus, the defendant has not demonstrated counsel's performance was deficient or that any prejudice resulted from the attorney's inaction. Id. The defendant also argues his attorney should have pursued a defense of not guilty by reason of insanity. It is well- established that debatable trial strategy does not constitute ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St. 2d 45, 48-49. Defense counsel chose to pursue an acquittal. This strategy was consistent with the defendant's testimony that he did not intend to rob the bank and did not believe the teller took him seriously. Furthermore, the record does not contain any psychiatric reports or other medical evidence that, at the time of the crime, the defendant did not know his acts were wrong or that he did not have the ability to refrain from such acts. See State v. Staten (1969), 18 Ohio St. 2d 13, paragraph two of the syllabus; State v. Coombs (1985), 18 Ohio St. 3d 123, 124. At most, defense witnesses indicated defendant was depressed and "apparently *** confused" at the time of the crime. (Tr. 87). Shen also testified the defendant "was not fully aware of what he was doing, and he [the defendant] could not quite recall what he really was doing." (Tr. 87). At trial, the defendant initially indicated he knew the difference between right and wrong (Tr. 63) but later testified he did not - 7 - know the difference or "I wouldn't have done it". (Tr. 64). In light of this evidence, we cannot say that pursuit of an insanity defense would have changed the outcome of the trial. Bradley, supra. Finally, it is the defendant's position that his attorney should have requested an instruction on theft by threat (R.C. 2913.02) and the defense of abandonment (R.C. 2923.02). The defendant has failed to demonstrate that either jury charge would have resulted in a different outcome at trial. Id. The elements of robbery (R.C. 2911.02) include the threatened use of immediate force. Theft by threat (R.C. 2913.02) contains no such requirement. Ritchie testified the defendant stated, "This is a stick-up" and moved his hands towards his pockets, leading her to believe he had a gun. Based upon this evidence, we find that even if the court had charged on threat by theft, there is no "reasonable probability" the jury would have returned a verdict on the lesser offense. We also reject the defendant's argument that the jury probably would have found he abandoned the robbery attempt. It is well-established that once criminal intent is formed and "such intent has been coupled with an overt act toward the commission of the contemplated offense, the abandonment of the criminal purpose will not constitute a defense to a charge of attempting to commit a crime." State v. Cooper (1977), 52 Ohio St. 2d 163, vacated in part on other grounds (1978), 438 U.S. 991. See, also, State v. Arnold (1983), 9 Ohio Misc. 2d 14. In light of - 8 - the defendant's overt action in threatening Ritchie and demanding money, we find it unlikely a jury would have found abandonment a defense in this case. The defendant's second assignment of error is overruled. The defendant's third assignment of error asserts the court improperly denied his Crim. R. 29 motion. The fourth assignment of error contends the evidence is insufficient to support defendant's convictions. Since both assignments challenge the sufficiency of the evidence, we will address them together. When reviewing the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. Further, the assessment of witness credibility lies primarily with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2911.02 defines robbery and states in relevant part: "(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another." - 9 - Construing the evidence in a light most favorable to the prosecution, we find the evidence sufficient to support defendant's conviction for robbery. The defendant approached teller Ritchie and stated, "This is a stick-up. Give me your money." The teller believed the defendant's hand movement indicated he had a gun in his pocket. Ritchie testified she was "very much" afraid by defendant's threat. Accordingly, we overrule the third and fourth assignments of error and the judgment of the trial court is affirmed. Judgment affirmed. - 10 - 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. NAHRA, P.J., SPELLACY, J., CONCUR. JUDGE *JOHN V. CORRIGAN (*Sitting by Assignment: Judge John V. Corrigan, retired from the Eighth District Court of Appeals). 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. .