COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59936 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION GERALD WEST : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-244462 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor NANCY R. McDONNELL, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: KREIG J. BRUSNAHAN 1220 West 6th Street #702 Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant appeals from his convictions for receiving stolen property, R.C. 2913.51, with a firearm specification and having a weapon while under disability, R.C. 2923.13, with a firearm specification. The relevant facts follow. On the night of September 19, 1989, two officers of the Cleveland Police Department were in their zone car patrolling the area of Fairhill and Cedar Roads. The officers testified that they heard the peeling and squealing of tires and noticed a TransAm traveling at excessive speed coming up Fairhill. They testified they let the car pass them and then followed it in their patrol car. They also testified they saw only one person in the car as they followed. The officers "ran" the license plate number of the car and received back a report that it was a stolen car. By that time both cars were in the vicinity of East 100th Street and Euclid Avenue. The officers thereupon turned on their patrol car's lights and siren. In an apparent attempt to elude the patrol car, the car the officers were following turned left off East 100th Street onto Hough Avenue, then turned left again onto East 93rd Street. The officers testified the car stopped at East 93rd Street and Amesbury Avenue and a male wearing a yellow shirt, black pants, and white tennis shoes "bailed out." The officers stopped their patrol car and gave chase on foot. - 3 - Officer Smith, who had been riding in the patrol car, testi- fied he noticed that when the suspect "bailed out", he had "short cut hair ... with a long little ponytail in the back." Officer Smith further testified that as he was chasing the suspect he "got within maybe two or three feet from him and we were running parallel," but that the suspect then eluded him. Smith indicated that as his partner, Officer Cheese, seemed to be closer to the suspect, he gave up the chase and returned to the stolen car. Upon his return, Officer Smith saw a gun laying on the front seat of the car. Officer Smith further testified he noticed a key in the car's ignition, but the car's steering column had been "peeled." Officer Cheese testified that the key in the ignition was not unusual, it is done "to keep the police officer from noticing the car with the peeled column." He further testified "you break the tip off any ordinary key and stick it in the ignition." Regarding the chase of the suspect, Officer Cheese testified the suspect was "approximately five-ten, a hundred and fifty, sixty pounds" and was wearing a "yellow shirt, black pants and white tennis shoes." Officer Cheese stated that as he was chasing the subject he went a different way from his partner and "observed the male run into a building." As he approached the building, which was known for drug activity, other police cars arrived at the scene. Officer Cheese testified he and another officer went into the building and saw two women running downstairs and - 4 - pointing up. When the officers went upstairs, the defendant, who was wearing a yellow shirt, black pants and white tennis shoes, was walking toward them. Officer Cheese stated he then detained defendant and took him to Officer Smith for an identification. Officer Smith stated he thereupon positively identified defendant as the driver of the stolen car. Defendant was arrested and subsequently charged on a four-count indictment, viz., count one, R.C. 2913.51, receiving stolen property, a 1982 Pontiac TransAm, with a firearm specification and a violence specification; count two, R.C. 2913.51, receiving stolen property, a firearm, with a firearm specification and a violence specification; count three, R.C. 2923.12, carrying a concealed weapon, with a violence specification; and count four, R.C. 2923.13, having a weapon while under disability, with a firearm specification and a violence specification. The violence specification on each count related to a 1985 conviction for burglary. Defendant's case was tried to a jury. During trial the state's witnesses included Officers Smith and Cheese and the owners of the TransAm and the gun. Gregory Korpanic, the owner of the car, testified the car was a TransAm, not a Firebird as originally specified in the indictment. He further testified that on September 16, 1989, he "left the keys in the car" after parking it in his girlfriend's driveway and a few minutes later looked out the window to see it "driving down the street." Defense counsel did not cross-examine Mr. Korpanic. - 5 - The state also presented Raymond Dennard as its witness. Mr. Dennard testified he was the owner of the gun found in the car after defendant's arrest. He further testified the gun had been stolen out of his house on September 9, 1989 during a party. On cross-examination Mr. Dennard stated he had an opportunity to ask defendant "who broke in my home?" and defendant denied any knowledge of the event. The only other witness presented by the state was Detective Taylor of the police department's Scientific Investigation Unit. Detective Taylor's testimony was that the gun found on the TransAm's front seat had been test-fired twice and was operable. Defense counsel cross-examined the detective concerning chain- of-custody and failure to check the gun for fingerprints. The state then rested its case without presenting the testi- mony of a Detective Ross. Out of the jury's hearing defense counsel stated to the court that this witness was important because he was "the investigator on this case." After some argument on the issue of the witness's unavailability, the court offered to "send the Sheriff out" for Ross. In response, defense counsel stated the following: MR. KEANE: My problem is, she [the prosecutor] is resting, I don't particularly like to call policemen as my witnesses. You have rested, correct? MS. McDONNELL: Yes, I have. MR. KEANE: And then at this time, Your Honor, I am going to move for a motion under Rule 29. I feel that the State has not proved - 6 - beyond a reasonable doubt each and every element of the offense for which my client, Gerald West, is charged. The proof by the State has to be beyond a reasonable doubt. There was certainly a lot of conjecture here, and, of course, I would also like to say that failure of the State's key witness to show up, Detective Ross, tends for me to believe the State is trying to cover up some- thing, therefore, I ask that the complaint against Gerald West be dismissed. The trial court overruled defendant's motion. Defendant thereupon presented a witness, Roosevelt Smith, who testified he had observed the stolen car being chased and saw it crash. He testified "two people got out and ran," that one person was wearing dark-colored clothes and the other yellow and white. He testified he believed neither of the persons he saw was defendant because he had seen defendant earlier and defendant was not wearing the same colors as the persons that he had observed, and because one "looked shorter" and the other "was taller." He testified that shortly after he observed the police give chase, the police returned with defendant, but defendant "wasn't the one" the police were chasing. Mr. Smith also testified he knew defendant because defendant had dated his step-sister. Furthermore, on cross-examination, Mr. Smith's credibility on many points was challenged by the state, particularly with regard to his statements concerning what colors defendant was wearing the night of the incident. Defendant also testified on his own behalf. He maintained that he was never in the stolen car, that he was just looking for a friend in the building when Officer Cheese entered, and that he - 7 - had never seen the gun found in the car. Defendant was unable to specify clearly who the officers were that were involved in his arrest. He stated he requested the officers to take fingerprints in order to prove his innocence. He admitted to a prior conviction; however, on cross-examination it was brought out that there were three separate previous convictions. After all the testimony the state moved to amend the indictment on count one to read "TransAm instead of Firebird," which was granted by the trial court. The parties had previ- ously stipulated to the prior conviction for burglary mentioned in the indictment. The case then proceeded to argument. Defense counsel asked the jury to consider the quality of the evidence and repeatedly pointed out the weaknesses in the state's case. Subsequently, the jury returned a verdict of guilty on counts one and four of the indictment and found defendant guilty on both firearm specifications. Following a presentence investi- gation, the court sentenced defendant to a term of two to ten years and three years actual incarceration on count one, and a term of two to five years and three years actual incarceration on count four, sentences to run consecutively; the gun specification sentences were merged. Defendant filed a timely appeal from his convictions, citing one assignment of error for review. Defendant's sole assignment of error follows: APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, CONTRARY TO THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. - 8 - This assignment of error lacks merit. Defendant challenges effective assistance of counsel on both federal and state grounds. The tests are very similar. Defendant argues his counsel's performance at trial was deficient in that counsel failed to request the court for an in camera inspection of the police report filed by Officer Smith concerning the September 19, 1989 incident. He contends this failure was obviously prejudicial to his defense and thereby denied his right to a fair trial. However, defendant's argument is unpersuasive. The test to be applied in showing ineffective assistance of counsel by the federal courts is that offered in Strickland v. Washington (1984), 466 U.S. 668; accord, State v. Bradley (1989), 42 Ohio St. 3d 136, 141. The Ohio Supreme Court adopted a two- pronged test to determine if counsel's assistance was so defective as to require reversal, viz., (1) defendant must show counsel's performance was deficient, and (2) the defendant must show the deficient performance prejudiced the defense. State v. Lytle (1976), 48 Ohio St. 2d 391, vacated on other grounds, 438 U.S. 910. As to the first prong of the test, defendant charges counsel should have moved the court for an in camera inspection of the police report. He contends that as the officers' personal observations as to the incident were discoverable under Crim. R. 16(B)(1)(g), there was no adequate reason for counsel not to request an inspection of the statements. - 9 - Crim. R. 16(B)(1) states in pertinent part the following: (g) In camera inspection of witness' statement. Upon completion of a witness' direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. If the court determines that inconsistencies exist, the statement shall be given to the defense attorney for use in cross-examination of the witness as to the inconsistencies. If the court determines that inconsistencies do not exist the statement shall not be given to the defense attorney and he shall not be permitted to cross-examine or comment thereon. Whenever the defense attorney is not given the entire statement, it shall be preserved in the records of the court to be made available to the appellate court in the event of an appeal. (Emphasis added.) Crim. R. 16(B)(2) then states as follows: (2) Information not subject to disclosure. Except as provided in subsections (B)(1)(a), (b), (d), (f), and (g), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or his agents in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses to state agents. Generally, Crim. R. 16(B)(2) exempts police reports from discoverable material. Beachwood v. Cohen (1986), 29 Ohio App. 3d 226. However, the Supreme Court of Ohio has stated the following: [T]hose portions of a testifying police officer's signed report concerning his observations and - 10 - recollection of the events are "statements" within the meaning of Crim. R. 16(B)(1)(g). Those portions which recite matters beyond the witness' personal observations, such as notes regarding another witness' statement or the officer's investigative decisions, interpretations and interpolations, are privileged and excluded from discovery under Crim. R. 16(B)(2). (Emphasis added.) State v. Jenkins (1984), 15 Ohio St. 3d 164 at 225, accord, State v. Taylor (October 29, 1987), Cuyahoga App. No. 52892, unreported. In the case sub judice, defense counsel failed to move for an in camera inspection of Officer Smith's report. It is possible, as defendant contends, that had counsel made the motion, inconsistencies between the officers' testimony and the prior statements as to their observations concerning the inci- dent might have been found. However, that does not resolve the issue asserted. Counsel is strongly presumed to have rendered adequate assistance, and the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. State v. Smith (1985), 17 Ohio St. 3d 98 at 100. A properly licensed attorney in Ohio is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299, 301 [31 O.O. 2d 567]. Thus, the burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App. 3d 115. In the case sub judice, defendant has failed to meet this burden, as the record does not disclose counsel's performance was - 11 - so deficient as to prejudice defendant's right to a fair trial. Counsel cross-examined the police officers on their credibility with regard to their observations on the night in question. He made numerous objections when appropriate. The record reveals counsel was well acquainted with the facts of the case and the issues of law presented. The record further reveals defense counsel was well aware of the police report and may well have not requested an in camera inspection of the report as trial strategy and used this strategy merely as a "red herring" for appeal purposes. Thus, although counsel never requested an in camera inspection of the police report, this court is unable to conclude this fact in itself was an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, supra, at 693. Moreover, defendant is required to show that counsel's performance prejudiced the defense. The Strickland court stated the appropriate test for prejudice is as follows: *** The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reason- able probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra, at 694. In the case sub judice, the state presented evidence that defendant was seen driving the stolen car, fleeing from it after it stopped and running into an apartment building, wherein he was apprehended. He was wearing the clothing described by the - 12 - officers, and was of the same height and build as the suspect. A gun was found in plain view on the front seat of the car. From these facts the jury could conclude he was guilty of the crimes of receiving stolen property and having a weapon while under disability. It is true that in the case sub judice witness credibility played a key role at trial. It is also axiomatic that the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. However, the record reveals defense counsel was able to cross-examine the police officers with respect to their observations on the night in question and did ask questions concerning the contents of their report. The record further reveals defense counsel was well aware of Crim. R. 16(B). Thus, this court can neither say that the failure to request an in camera inspection of the police report was not merely a matter of trial strategy, nor that but for counsel's "error" the result of the proceeding would have been different. State v. Bradley, supra. Therefore, this court cannot say defendant was deprived of his right to effective assistance of counsel. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 13 - 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. DAVID T. MATIA, C.J., and SPELLACY, J., CONCUR JUDGE BLANCHE KRUPANSKY 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .