COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60552 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : EDWARD HOUSTON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-250866. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Christopher D. Stanley, Esq. 902 Rockefeller Building Cleveland, OH 44114 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Edward Houston, appeals from his conviction for the offense of theft. The appellant's appeal involves the issues of due process and a fair trial. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT'S ARREST On March 14, 1990, the appellant entered the F.W. Woolworth Co. which was located at 308 Euclid Avenue, Cleveland, Ohio. A security officer, who was patrolling the floor of the F. W. Woolworth Co., observed the following events: 1) the appellant removed a box from a shelf; 2) the box contained red and white Puma tennis shoes; 3) the appellant removed his own tennis shoes and placed the Puma tennis shoes upon his feet; 4) the appellant laced up the Puma tennis shoes; 5) the appellant placed his old tennis shoes into the box which originally contained the Puma tennis shoes; 6) the appellant placed the box back on the shelf; 7) the appellant attempted to leave the F. W. Woolworth Co. without paying for the Puma tennis shoes; and 8) the appellant was detained by a security officer. B. THE INDICTMENT AND ARRAIGNMENT On April 19, 1990, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of theft in violation of R.C. 2913.02 with two violence specifications. On April 27, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to the indictment. C. THE JURY TRIAL -3- On July 25, 1990, a jury trial was commenced with regard to the pending offense of theft. At the conclusion of the trial, the jury returned a verdict of guilty as to the one count of theft. D. THE SENTENCE OF THE TRIAL COURT On August 17, 1990, the trial court sentenced the appellant to incarceration within the Lorain Correctional Institution for a period of three years to ten years. The trial court, however, suspended execution of sentence and placed the appellant on probation for a period of two years. E. THE TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of theft. II. SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL BY THE REFUSAL OF THE TRIAL COURT TO ALLOW HIM TO TESTIFY UNFETTERED BY THE CLOSE PRESENCE OF A DEPUTY SHERIFF. A. ISSUE: PRESENCE OF DEPUTY SHERIFF DENIED THE APPELLANT DUE PROCESS AND A FAIR TRIAL The appellant, through his sole assignment of error, argues that he was denied a fair trial. Specifically, the appellant argues that the presence of a security officer (deputy sheriff) near the appellant during direct examination and cross- examination resulted in prejudice and thus constituted a deprivation of due process and a fair trial. The appellant's sole assignment of error is not well taken. -4- B. PRESENCE OF THE DEPUTY SHERIFF NEAR THE APPELLANT At the close of the prosecution's case-in-chief, the appellant was called by defense counsel for the purpose of direct examination. While approaching the witness seat, a Cuyahoga County deputy sheriff remained in close proximity to the appellant. It should be noted that the appellant was in the custody of the Sheriff's Department prior to and during the course of trial. Defense counsel, however, objected to the presence of the deputy sheriff near the appellant during direct examination on the basis that the proximity of the deputy sheriff inferred culpability thus violating the appellant's constitutional right to a fair trial. C. THE UNITED STATES SUPREME COURT AND SECURITY OFFICERS IN A COURTROOM The United States Supreme Court, however, has held that the presence of uniformed armed security forces in a courtroom does not violate a defendant's constitutional right to fair trial. The first issue to be considered here is thus whether the conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial is the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial. We do not believe that it is. The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers' presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the -5- community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. *** Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm. See Hardee v. Kuhlman, 581 F.2d 330, 332 (CA2 1978). To be sure, it is possible that the sight of a security force within the courtroom might under certain conditions "create the impression in the minds of the jury that the defendant is dangerous or untrustworthy." Kennedy v. Cardwell, 487 F2d 101, 108 (CA6 1973), cert denied, 416 US 959, 40 L Ed 2d 310, 94 S Ct 1976 (1974). However, "reason, principle, and common human experience," Williams, supra, at 504, 48 L Ed 2d 126, 96 S Ct 1691, counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial. In view of the variety of ways in which such guards can be deployed, we believe that a case-by-case approach is more appropriate. Holbrook v. Flynn (1986), 475 U.S. 560, at 568. D. THE APPELLANT WAS NOT DENIED DUE PROCESS OR A FAIR TRIAL A review of the record in the case sub judice fails to disclose that the close proximity of a deputy sheriff near the appellant during direct examination would have created an impression in the minds of the jury that the appellant was dangerous or untrustworthy. The presence of the deputy sheriff was but a precautionary measure in light of the fact that the -6- appellant was in custody of the deputy sheriff and also that the appellant had previously attempted to escape during his initial arrest. (Tr. 27.) In addition, the close proximity of a deputy sheriff to a defendant is not equivalent to a situation in which a defendant is schackled, handcuffed or forced to wear prison garb. State v. Carter (1977), 53 Ohio App. 2d 125. The presence of the deputy sheriff near the appellant did not result in the denial of due proces and an unfair trial. State v. Cunningham (July 25, 1991), Franklin App. No. 90AP-427, unreported; State v. Stankorb (Dec. 17, 1990), Clermont App. No. CA90-03-027, unreported. Thus, the appellant's sole assignment of error is not well taken. Judgment affirmed. -7- 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, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .