COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60556 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JOHN SHUMAR : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 248985. JUDGMENT: MODIFIED, AND AS MODIFIED IS AFFIRMED. REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs-Jones Cuyahoga County Prosecutor Michael Maloney Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Albert A. Giuliani 410 Leader Building Cleveland, Ohio 44114 - 2 - SWEENEY, JAMES D., J.: Defendant appellant John Shumar appeals his conviction of aggravated robbery, with a firearm specification, in violation of R.C. 2929.71. Appellant was tried to the bench, and sentenced to a term of incarceration of eight to twenty-five years, with an additional consecutive three year term for the specification. On December 1, 1989, appellant telephoned Ms. Bonnie Bentz and requested that he be allowed to return to their former abode and retrieve his mail. She consented. Upon arrival at the Matherson Avenue home, appellant was admitted by Ms. Bentz' roommate, Ms. Sandy Colegrove. Ms. Colegrove testified that she let appellant into the house; that she handed him his mail; that he went into Ms. Bentz' bedroom; that when she asked him what he was doing he lifted his shirt up and "it looked like a gun" (T. 13.); and that he told her "don't worry about it" (T. 13, 15.). When asked to describe the gun, Ms. Colegrove stated: "It looked like it was black tape wrapped around the handle part, like." (T. 15.) She could not give a more accurate or specific description. Ms. Colegrove further testified that the opening of appellant's jacket was "sort of" a fast motion. (T. 33.) Appellant left the premises after removing the envelope from the dresser drawer. Subsequently she contacted Ms. Bentz. - 3 - Ms. Colegrove acknowledged that appellant had shared Ms. Bentz' bedroom (T. 30), and that some of his clothes still hang in the bedroom closet. (T. 31.) Ms. Colegrove testified that she had a fifty dollar a day cocaine habit and was currently serving a sentence in Marysville Correctional Institute for drug abuse (T. 19, 20), and had used cocaine daily. (T. 20.) Ms. Bentz testified that she had previously lived with appellant for five or six years and that when he telephoned her to request permission to return to the house to retrieve his mail, she consented. After Ms. Colegrove telephoned her regarding appellant's visit, she went home and discovered missing two rings, a gold necklace and a silver pendant. The approximate value of these items was $450.00. She testified that appellant no longer had clothes in the house, and that Ms. Colegrove had helped her place appellant's clothing in bags. She also stated that appellant at one time had owned a gun, but that she had no idea whether or not he owned or possessed a gun at the time of trial. Appellant took the stand on his own behalf. He testified he went to the house to pick up his mail; that Ms. Colegrove handed it to him; that he went into the bedroom and opened the dresser drawer to retrieve his charm which was in an envelope; that he was chatting with Ms. Colegrove (T. 83) and opened the envelope, his charm was there (T. 83). He testified that when Ms. - 4 - Colegrove asked him what he was doing, he replied that he was getting his charm (T. 83); that his jacket was open because it was too tight (T. 83); and that he had on a weightlifting belt with a buckle because he was going to the gym. (T. 83, 84, 96.) He went to the kitchen, drank a glass of water, and left. (T. 89.) Appellant testified that he had previously owned a gun, but did not at the time of this incident. He stated Ms. Colegrove looked hung over. Appellant also testified that he owned the bedroom set, including the dresser which he opened. Other possessions still at the house included a china cabinet, a car, the washing machine, dryer, clothes, tools and fishing equipment. Appellant's first assignment of error. I THE TRIAL COURT ERRED IN ACCEPTING A SO- CALLED WRITTEN WAIVER OF APPELLANT'S RIGHT TO A TRIAL BY JURY WHERE THE RECORD, THOUGH EVIDENCING THROUGH TRIAL COUNSEL THAT APPELLANT HAD SIGNED SAID DOCUMENT, FAILED TO AFFIRMATIVELY DEMONSTRATE THAT THE APPELLANT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS RIGHT TO A TRIAL BY JURY. In State v. Jells (1990), 53 Ohio St. 3d 22, the Supreme Court was presented with the same argument as appellant raises here. The court stated: 2 There is no requirement in Ohio for the trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. The Criminal Rules and the Revised Code are - 5 - satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel. See State v. Morris (1982), 8 Ohio App. 3d 12, 14, 8 OBR 13, 15- 16, 455 N.E. 2d 1352, 1355. While it may be better practice for the trial judge to enumerate all the possible implications of a waiver of a jury, there is no error in failing to do so. Since the executed waiver in this case complied with all of the requirements of R.C. 2945.05, and counsel was present at the signing of the waiver, we find no error. (Footnote omitted.) In the case sub judice, the trial court merely acknowledged for the record that she had received a written jury waiver. While we could wish the judge had entered into some discussion with the appellant, the Supreme Court has clearly stated there is no requirement to do so. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II JOHN SHUMAR WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION AND SENTENCE FOR A FIREARM SPECIFICATION WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. In this assignment of error, appellant argues that there was insufficient evidence to prove that he possessed a weapon during the commission of a felony; and that there was insufficient evidence to prove the operability of such a weapon. We agree. Syllabus 2 of State v. Martin (1983), 20 Ohio App. 3d 172, discusses the standard for review of sufficiency of the evidence. - 6 - In considering the claim that the conviction was not supported by sufficient probative evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. The definition of firearm is found in R.C. 2923.11(B): (B)(1) "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable. (2) when determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm. And R.C. 2929.71(A) sets forth a term of actual incarceration for offenses involving a firearm. (A) The court shall impose a term of actual incarceration of three years in addition to imposing a life sentence pursuant to section 2907.02, 2907.12, or 2929.02 of the Revised Code or an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if all of the following apply: (1) The offender is convicted of, or pleads guilty to, any felony other than a - 7 - violation of section 2923.12 of the Revised Code. (2) The offender also is convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. * * * * The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment. The definition of firearm in R.C. 2923.11(B) is specifically applicable to R.C. 2929.71 through R.C. 2929.71(D). Appellant was convicted on the firearm specification based on the testimony of Ms. Colegrove. At trial, when questioned about the gun, Ms. Colegrove testified: A. And he like lifted his shirt up and it looked like a gun. And I said, well, why don't you just leave? And he left. (T. 13.) * * * * Q. Could you describe to the Judge specifically what the defendant did in the bedroom? You've already mentioned something about a gun, but be very specific and tell the Judge what you saw. A. Okay. I walked in and he was in the dresser drawer and I asked him what he was doing and he said, don't worry about it. And he removed his jacket like he had a gun stuck in his pants, and I seen that. And I walked out of the room and asked him, would you leave, and he left. Q. Okay. Can you describe to the Judge the gun that you saw? - 8 - A. It looked like it was black tape wrapped around the handle part, like. Q. Can you give any further description of this weapon? A. That is really all I seen. (T. 15.) Essentially, what Ms. Colegrove observed was an object with tape on it. She testified that "he removed his jacket like he had a gun stuck in his pants. . .." This is not sufficient testimony to prove that a gun existed. In addition, the State had the burden of proving operability of the firearm. State v. Murphy (1990), 49 Ohio St. 206, syllabus. The state must present evidence beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v. Gaines [1989], 46 Ohio St. 3d 65, 545 N.E. 2d 68, m o d i f i e d . ) (Emphasis added.) - 9 - In Murphy, the surrounding circumstances involved the defendant holding up a United Dairy Farmers store and brandishing "a one or two shot chrome derringer, waiving it back and forth toward the clerk and the customer." The defendant also stated that if the clerk did not give him the money, he would kill him. Murphy, supra. The case sub judice is substantially different. The witness is unable to describe the alleged gun with any specificity and absolutely no threats were made by appellant. Based on the circumstances surrounding this incident, the testimony of Ms. Colegrove is insufficient to support a conviction on the firearm specification. Appellant's assignment of error is well taken. We find that the elements necessary for a conviction of aggravated robbery are not present. Pursuant to App. R. 12(B), we modify the conviction to robbery, R.C. 2911.02, and remand for resentencing. Appellant's third assignment of error. III JOHN SHUMAR WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. The Ohio Supreme Court has enunciated the standard for evaluating the effective assistance of counsel in State v. Bradley (1989), 42 Ohio St. 3d 136, at syllabus 2 and 3: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen - 10 - below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O. 3d 495, 358 N.E. 2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Appellant argues that his counsel did not effectively cross- examine Ms. Colegrove with respect to her prior inconsistent statements as given to the Cleveland Police after the incident. Trial counsel's objections to the admission of the police report were sustained. Trial counsel did not request an in-camera inspection of the police report. The police report contains statements by the witness which would have been beneficial to the case of the State. Appellant cannot prove that there exists a reasonable probability the result of the trial would have been different were it not for the exclusion of the police report. Appellant next contends that trial counsel should have determined if Ms. Bentz had made a statement to the police, and moved for an in-camera inspection of the document. However, at trial, Ms. Bentz stated that she did file a police report (T. 47). Since her trial testimony only described the missing jewelry, her relationship with the appellant, and her permission - 11 - to allow him access to her home, the appellant has not shown how a statement to the police could have changed the result of the trial. Appellant's last argument is that the closing argument of trial counsel was very brief. This case was tried to the bench, and the judge was presented with only three witnesses who testified as to rather an uncomplicated set of facts. We cannot say that trial counsel's performance fell below an objective standard of reasonable representation, nor that prejudice arose therefrom. Appellant's third assignment of error is not well taken. Judgment is modified and as modified is affirmed. Cause is remanded for resentencing. - 12 - This cause is affirmed in part and reversed in part. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and THOMAS PARRINO, J.*, CONCUR. JAMES D. SWEENEY JUDGE *(SITTING BY ASSIGNMENT: THOMAS PARRINO, RETIRED JUDGE OF THE COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT.) 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. .