COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60219 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION PAMELA WARD, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-252,587 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor 1200 Ontario Street Justice Center Cleveland, Ohio 44113 For defendant-appellant: Daniel J. Ryan 2000 Standard Building Cleveland, Ohio 44113 -2- NAHRA, J.: On April 23, 1990, at 9:50 a.m., Aleta Taylor left her house located at 436 East 115th Street and went downtown to collect welfare benefits. Ms. Taylor lives with her son on the second floor of a duplex; Pam Ward, defendant-appellant, Press Boyd, Deborah Edwards, and Robert Stanton all live in the first floor unit of the same house. When she left the house, Taylor locked the front and back doors of her second floor apartment; Taylor's son was in school at the time. At approximately 1:45 p.m., Taylor returned to her house. She entered the first floor door, climbed the stairs to her unit, and upon her entry she discovered that her stereo was missing. Taylor went to the back of her apartment and noticed that her microwave oven was gone and that the back door was ajar. She further observed that the back door had been pried open; Taylor's back door can be reached from the outside by stairs going from the first floor to the second floor. When Taylor went to call the police, she discovered that her phone was missing. Taylor testified that, in sum, she was missing the following: a microwave, two phones, a jar of pennies, a chess set, a television-cassette player, and an AM-FM receiver. Taylor left her house and walked to visit Lottie Morton, a neighbor who keeps watch over the block. Ms. Morton told Taylor that she observed Robert Stanton carrying a microwave out of the first floor door of Taylor's house. She also observed Pam Ward holding the door open for -3- Stanton and Deborah Edwards when they carried a radio out of the house. She further observed that they placed such items into Stanton's vehicle and left. Upon learning of Morton's observations, Taylor promptly called the police. When the police arrived, Taylor described what items were missing and gave them a description of Stanton's car and its license plate number. On April 30, 1990, at 1:30 a.m., police officer Joseph Viccaro observed a 1981 white Oldsmobile travelling westbound on Detroit Avenue and West 52nd Street. Officer Viccaro "ran" the car's license plates and discovered that it was listed on the hot sheet as either a stollen or wanted vehicle. Viccaro requested some back-up support and eventually pulled the car over at Detroit Avenue and West 80th Street. Ward, Stanton, and Edwards were seated in the car. The dispatcher then broadcasted to Viccaro that the car had been used in a prior burglary and gave a description matching Pam Ward and Robert Stanton. All three were ordered out of the car, read their constitutional rights, and arrested. The police inventoried Stanton's vehicle and found Taylor's stereo receiver. Stanton was asked about the receiver and he claimed that it had just been purchased from a fellow on West 25th Street whose name he did not know. Viccaro proceeded to Ward's father's house to see if any of Taylor's items were there. Ward had allegedly moved to her father's house. However, Viccaro did not find anything there which belonged to Taylor. Deborah Edwards testified that on April 23, 1990, she entered Taylor's home and took a stereo cassette player and a -4- television. She further testified that Robert Stanton accompanied her. She stated that Stanton took a microwave oven, a stereo receiver, and a jar of pennies from Taylor's home. She also asserted that Ward was not involved. When asked who had the idea for what transpired, Edwards testified that it just happened and that noone in particular had the idea. Edwards revealed that upon leaving Taylor's house, the three drove to the house of Ward's father. Once there, the three placed the stolen items inside the house until they took the stolen goods to Uncle Ben's Pawnshop on East 40th Street and Payne. Edwards testified that Ward is Stanton's girlfriend and that the car the three used was a 1981 Oldsmobile owned by Stanton. Ward testified that she was unaware of any such burglary of Taylor's home. She stated that she was upset because she had been forced to move out of Preston Boyd's house on April 23, 1990. She further stated that she did not hold the door open for Stanton and Edwards as they carried out the microwave and television. Ward initially denied that she, along with Edwards and Stanton, went to a pawn shop. Later, she admitted that she went to one with them. Wendy Arnold, a state parole officer assigned to Stanton, was called to testify by Stanton. She testified that she received telephone calls from Edwards and Ward, each of whom told Arnold that they were the ones who broke in and stole Taylor's property. They revealed to Arnold that Stanton merely assisted them in carrying out the crime by the use of his car. -5- Stanton testified that he did not know the items were stolen and did not participate in any way. On June 4, 1990, Ward was indicted for one count aggravated burglary pursuant to R.C. 2911.11, one count of theft pursuant to R.C. 2913.02, and one count of possessing criminal tools pursuant to R.C. 2923.24. On July 3, 1990, trial ensued and a jury found Ward guilty of theft and possession of criminal tools. The jury also found Ward not guilty of the charge of aggravated robbery. Thereafter, the trial court sentenced Ward to a prison term of one year on each count which were scheduled to run concurrently with each other. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN OVERRULING THE MOTION OF THE DEFENDANT-APPELLANT MADE PURSUANT TO CRIMINAL RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE AND IN REFUSING TO ISSUE A JUDGMENT OF ACQUITTAL FOR THE DEFENDANT. Criminal Rule 29(A) provides in part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The Supreme Court of Ohio has asserted that: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. -6- State v. Bridgeman (1978), 55 Ohio St. 2d 261, 381 N.E.2d 184, syllabus. The Supreme Court has also stated: A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132, syllabus. R.C. 2913.02, which defines the offense of theft, states in pertinent part: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) By deception; * * * Ward contends there was no evidence in the record of her participation in the crime of theft. Our review of the record indicates that there was sufficient evidence to convict Ward of theft and the possession of criminal tools beyond a reasonable doubt. See State v. Flowers (1984), 16 Ohio App. 3d 313, 475 N.E.2d 790, paragraph one of the syllabus. Evidence in the record reveals that Alita Taylor's home was burglarized by Ward, Stanton, and Edwards when Taylor left her house on the morning of April 23, 1990. Lottie Morton, a neighbor, testified that she observed Stanton and Edwards -7- carrying Taylor's property out the bottom half of Taylor's house. Ward was seen holding the door for Edwards and Stanton. In this way, Ward participated in the theft of Taylor's property. When Taylor returned to her home, she discovered that her back door was ajar, the lock damaged, and that numerous items were missing, including a stereo receiver and a microwave oven. Deborah Edwards testified that she, Ward, and Stanton drove away in Stanton's car and later to a pawn shop where they sold some of Taylor's property. State v. Oliver (1987), 31 Ohio App. 3d 100, 508 N.E.2d 1048. As a result of the foregoing, we believe there was sufficient evidence to convict Ward of theft and possession of criminal tools and that the trial court's denial of Ward's motion for acquittal was proper. Appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN ORDERING THE DEFENDANT TO PROCEED TO TRIAL ALONG WITH THE CO-DEFENDANT BECAUSE IT PREVENTED THE DEFENDANT FROM RECEIVING A FAIR TRIAL. Ward asserts that she was entitled to a separate trial and that the trial court's denial of her request for one deprived her of a fair trial. Ward argued at trial that she needed Robert Stanton to testify but that she could not force him to do so if they were tried together. She also contends that the testimony of Wendy Arnold, the probation officer called as a witness by -8- Stanton, prejudiced her insofar as Arnold stated that Ward disclosed to her that Ward had participated in the theft. Crim. R. 14, which provides relief from prejudicial joinder, states in pertinent part: If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, information or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. * * * A defendant must renew his motion for severance due to prejudicial misjoinder at the close of the state's case or at the conclusion of all evidence. If a defendant fails to renew such motion at either of those times, then his motion is waived. State v. Owens (1975), 51 Ohio App. 2d 132, 366 N.E.2d 1367, paragraph two of the syllabus. An inspection of the record and transcript indicates that Ward never renewed her motion for severance. As a result, such motion was waived. Notwithstanding such waiver, we do not believe that Ward was prejudiced by the trial court's denial of her motion for severance. In the case at bar, co-defendant Stanton did testify and Ward had the opportunity to question him. In addition, we believe there was sufficient evidence supporting Ward's conviction apart from Arnold's testimony. State v. Torres (1981), 66 Ohio St. 2d 340, 421, N.E.2d 1288. Therefore, the trial court did not abuse its discretion by trying Stanton and Ward together. -9- Appellant's second assignment of error is overruled. III. Appellant's third assignment of error states: THE PROSECUTOR HAD AN OBLIGATION TO INFORM THE APPELLANT OF THE ORAL STATEMENT IN THE POSSESSION OF THE PAROLE OFFICER PRIOR TO THE PAROLE OFFICER TESTIFYING AT THE TRIAL IN THAT SUCH DENIAL OF DISCOVERY PREVENTED THE APPELLANT FROM PROPERLY PREPARING FOR THE TRIAL. Ward asserts that the prosecutor representing the State failed to disclose to Ward that the prosecutor knew of statements Ward made to Wendy Arnold. Ward argues that the prosecution's withholding of her oral statements violated Crim. R. 16. Consequently, Ward did not receive a fair trial inasmuch as she was surprised by Arnold's testimony that Ward had admitted to her that she participated in the crime. Such argument lacks merit. There is nothing in the record to indicate that the prosecutor for the State had knowledge of Ward's oral statement to Arnold. At trial, co-defendant Stanton called Arnold as a witness. During direct examination, Arnold mentioned that she had conversations with Deborah Edwards to the effect that Edwards and Ward had perpetrated the theft without Stanton's involvement. On cross-examination, the State properly questioned Arnold and she disclosed that Ward had also disclosed to her that she and Edwards participated in the theft. Our review in the record does not indicate that the prosecution had any prior knowledge of Ward's oral statements to Arnold. Therefore, the admission of Arnold's testimony was proper. Crim. R. 16(B)(1)(a)(ii); State -10- v. Parson (1983), 6 Ohio St. 3d 442, 445-446, 453 N.E.2d 689; State v. Emmons (1978), 57 Ohio App. 2d 173, 306 N.E.2d 838. Appellant's third assignment of error is overruled. The judgment of the trial court is affirmed. The judgment of the trial court is affirmed. 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. DYKE, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE 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. .