COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60459 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JACE C. WHITT : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-240,655 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BRIAN McGRAW, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: BARBARA JONES Attorney at Law Post Office Box 112 Berea, Ohio 44017 - 2 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Jace C. Whitt, was indicted for receiv- ing stolen property in violation of R.C. 2913.51, with a violence specification. After a jury trial, appellant was found guilty as indicted. Appellant duly appeals his conviction. For the reasons that follow, we affirm. On the evening of October 15, 1989, Peggy Longfellow parked her 1983 Toyota Celica in the downstairs garage of her University Circle apartment building. Ms. Longfellow, as was her custom, left the keys in the ignition and retired to her apartment for the even-ing. The following morning, her car was gone. Ms. Longfellow tes-tified she had given no one permission to take her car. At approximately 10:30 p.m. on the 16th, Officers Jose Sandoval and James Chura observed a 1983 Toyota Celica with a license plate spelling "UNEEK" while on basic patrol. Officer Chura recognized the unique license plate as being on an updated list of stolen motor vehicles in the City of Cleveland. The officers followed the vehicle while a radio call to the dis- patcher confirmed that the car was stolen. The vehicle pulled into a driveway, and a black male and black female jumped out and proceeded to run away. - 2 - The officers pulled up behind the stolen vehicle and began a foot pursuit. Officer Chura caught the black female, later identified as Carol Johnson, but the black male was able to escape by scaling a fence. However, the black male did not escape before the officers were able to observe his clothing. Both Officers Sandoval and Chura observed the male wearing a black Georgetown starter jacket, blue jeans and tennis shoes. Moreover, a fresh covering of snow ensured an uncertain getaway. Officer Chura placed Ms. Johnson in the police cruiser and drove the Toyota, the keys having been left in the ignition, around the block in the direction in which the suspect fled. Officer Sandoval followed in the police cruiser. Officer Chura picked up the suspect's footprints in the freshly-fallen snow in an empty business parking lot. Officer Sandoval testified these were the only footprints in the area. Officer Chura followed the footprints on foot while keeping in touch with the other officers with a portable radio. Meanwhile, Officers McHugh and Raynard had responded to a broadcast for assistance in the pursuit of the suspect. As they parked their car on Holton Avenue, they observed a man wearing the same clothing as identified by Officer Chura run across the road and into a house. Meanwhile, Officer Chura followed the footprints to the very same house. Officer Sandoval soon after caught up with the other officers. - 3 - The police officers remained outside the house in such a position so as to observe the front and back of the home. After calling in for a supervisor, Danny Williams, the owner, came home and let the officers inside. There, Officer Chura spoke with Wanda Williams and was told that an acquaintance of her husband had asked to use the phone, made a call, and then left through the back door after having observed the police cars while at the front door. Officer Chura proceeded out the back door and picked up the same footprints, which led to appellant lying face down in the snow between the house and a fence. Appellant was placed under arrest and read his rights. Officer Chura testified that appellant stated he found the vehicle parked in a gas station and that the girl did not know the car was stolen. Finally, Carol Johnson testified that appellant was not the man driving the car when the police pulled them over. However, a prior written statement of Ms. Johnson implicates appellant as the man who was driving the car when they were pulled over. Based on the above evidence, the jury found appellant guilty as indicted. Appellant appeals, raising four assignments of error for our review. Appellant's first assignment of error states: THE PROSECUTOR IMPROPERLY REFERRED TO THE DEFENDANT'S FAILURE TO TESTIFY IN HIS CLOS- ING ARGUMENT. - 4 - Appellant argues he was prejudicially denied a fair trial by the prosecutor's following comments in closing argument: MR. McGRAW: We have not heard one scintil- la, one iota of evidence about what rightful reason Mr. Whitt had to be in that car. MR. KELLY: Objection, your Honor. THE COURT: Sustained. Sustained. MR. McGRAW: We have not heard, ladies and gentlemen, anything in that regard. MR. KELLY: Objection, your Honor. THE COURT: Sustained. The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Smith (1984), 14 Ohio St. 3d 13. A reference by the prosecutor in closing argu- ment to uncontradicted evidence is not a comment on the accused's failure to testify where the comment is directed to the strength of the state's evidence and not to the silence of the accused and where the jury is instructed, as here, to not consider the accus- ed's failure to testify. State v. Williams (1986), 23 Ohio St. 3d 16, 19-20. The prosecutor is prohibited from using language in his comments which the jury would "naturally and necessarily" take as a comment on the defendant's failure to testify. State v. Watson (1991), 61 Ohio St. 3d 1, 9. The test regarding prosecutorial misconduct in closing argu- ments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. - 5 - Smith, supra, at 14. A reviewing court must determine whether the factfinder would have found the defendant guilty absent the prosecutor's remarks. State v. Maurer (1984), 15 Ohio St. 3d 239, cert. den. 472 U.S. 1012. Appellee asserts the closing statements were in reference to appellant's unrefuted comments to the police that he found the car running and that the girl did not know it was stolen. Howev- er, it is hard to imagine how the prosecutor's comment could be construed as anything but a failure to testify on the defendant's part. In any event, we conclude beyond a reasonable doubt that the jury would have found appellant guilty absent the prosecu- tor's remarks. The state's evidence is overwhelming compared to the minimal evidence put forth by appellant, which consisted of Carol Johnson denying that appellant was the driver of the vehi- cle in question. Therefore, appellant's first assignment of error is over- ruled. Appellant's second assignment of error is as follows: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CROSS-EXAMINE THE STATE'S WITNESSES ON APPARENT INCONSISTENCIES IN THEIR TESTIMONY AND ON APPELLANT'S STATE- MENTS TO POLICE OFFICERS. Appellant argues he was denied effective assistance of counsel by his trial counsel's failure to vigorously cross-exam- ine the state's witnesses on alleged inconsistencies and on appellant's statements to the police. We disagree. - 6 - In determining whether appellant was denied effective assis- tance of counsel, the test to be applied is whether the accused, under all the circumstances, had a fair trial and whether sub- stantial justice was done. State v. Hester (1976), 45 Ohio St. 2d 71. A two-step process, substantially similar to the two- pronged analysis developed by the U. S. Supreme Court in Strickl- and v. Washington (1984), 466 U.S. 668, has developed as fol- lows: First, there must be a determination as to whether there has been a substantial viola- tion of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were vio- lated, there must be a determination as to whether the defense was prejudiced by coun- sel's ineffectiveness. State v. Lytle (1976), 48 Ohio St. 2d 391; see also, State v. Smith (1985), 17 Ohio St. 3d 98. On the issue of counsel's effectiveness, the appellant has the burden of proof since, in Ohio, a properly licensed attorney is presumed competent. Lytle, supra, at 397. In the present case, appellant has failed in his burden to demonstrate that he was denied effective assistance of counsel. Appellant fails to point out in the record any alleged inconsis- tencies of the state's witnesses from which his trial counsel could have conducted a vigorous cross-examination. Further, a review of the record does not reveal any alleged inconsistencies. Finally, it is certainly a legitimate trial strategy not to - 7 - conduct a vigorous cross-examination on appellant's culpatory statements to the police. It was more than reasonable for appel- lant's trial counsel to avoid any reference to such statements while conducting cross-examination so as not to re-emphasize his statements. Accordingly, appellant's second assignment of error is over- ruled. Appellant's third assignment of error states: THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE IN ITS CASE-IN-CHIEF THE FACT THAT APPELLANT EXERCISED HIS FIFTH AMENDMENT RIGHTS WHEN QUESTIONED BY POLICE. Appellant contends he was prejudicially harmed by Detective Smelko's testimony that "he (appellant) just stated that the girl didn't know the car was stolen, that he just picked her up, and he didn't wish to make a further statement." Appellant's counsel did not object to this statement. Therefore, our review of this issue is limited to whether such alleged error constitutes plain error. Crim. R. 52(B). We conclude such error does not amount to plain error. The law is clear that post-arrest silence is inadmissible as being non-probative of a defendant's guilt. Doyle v. Ohio (197- 6), 426 U.S. 610. However, in the present case, the witness's passing reference that appellant did not wish to make a further statement does not amount to plain error and is harmless in light of the substantial amount of other incriminating evidence. State v. Moten (Oct. 24, 1985), Cuyahoga App. No. 49323, unreported; - 8 - State v. Casey (June 28, 1984), Cuyahoga App. No. 47637, unre- ported. This includes the testimony of Officers Sandoval and Chura and Detective Smelko, all of whom identified appellant as the suspect arrested outside of the Williams' home. Accordingly, appellant's third assignment of error is over- ruled. Appellant's final assignment of error is as follows: THE CONVICTION IN THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE EVIDENCE SUPPORTING IT WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTION BEYOND A REASONABLE DOUBT AND BECAUSE IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues his conviction for receiving stolen proper- ty is against the manifest weight of the evidence. This argument lacks merit. In reviewing the sufficiency of the evidence, an appellate court's function is to determine if there was evidence which, if believed, would convince the average person of the accused's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, 273. The inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reason- able trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. The weight to be given the evi-dence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 19 Ohio St. 2d 230. - 9 - The receiving stolen property statute (R.C. 2913.51) pro- vides, in pertinent part, that no person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe that property has been obtained through the commission of a theft offense. In the present case, Peggy Longfellow identified the automo- bile in question as hers and testified she gave no one permission to take it. Officers Sandoval, Chura and McHugh testified as to tracing the suspect's footprints through the freshly-fallen snow which ultimately led to appellant's arrest outside the Williams' home. Finally, Det. Smelko testified to placing appellant under arrest and to appellant's statement that "the girl didn't know the car was stolen, ***." Therefore, appellant's conviction is supported by sufficient evidence, and appellant's fourth assignment of error is over- ruled. 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 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. COX, J.* CONCUR JUDGE FRANCIS E. SWEENEY *Sitting by Assignment: Edward A. Cox, Judge of the Seventh Dis- trict 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 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. .