COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60632 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : REGINALD SMITH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 11, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-253621(B) JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES WARREN L. MCCLELLAND Cuyahoga County Prosecutor Assistant Public Defender 8th Floor Justice Center Room 307, Marion Building 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Reginald Smith defendant-appellant, hereinafter Appellant timely appeals his jury trial convictions for aggravated robbery, grand theft, breaking and entering, and possession of criminal tools. For the reasons set forth below, we affirm. On May 26, 1990, Appellant and two other males were observed 1 by members of the Cleveland Police Department Spyglass Detail. The detectives were assigned to give special attention to some parking lots near West Third, Sixth, and Ninth streets in downtown Cleveland, Ohio. At approximately 11:05 P.M., these males parked their car, exited their vehicle, and walked across the street to a Systems Parking Garage. The parking garage was managed by Lee Sims, who testified during the trial that someone in the garage to steal a car would not have permission to be on the premises. The three males talked briefly; then Appellant and one of the other males entered the garage and walked to the second level, not realizing that they were being observed by the police. The second level of the garage did not have a roof and was therefore openly visible. Detective Sowa, a member of the Spyglass Unit, was in a perch position on top of a nearby building with an unobstructed view of the second level of the garage. Detective Sowa was in radio contact with Detectives Beck 1 The Spyglass Unit of the Cleveland Police Department is a division of auto theft; they utilize an officer perched on top of a building to assist them in surveillance for car thieves, thus, the name Spyglass Unit. -3- and Blanc, advising them of the actions of Appellant and the other male. Detective Beck testified at trial that he and Detective Blanc entered the garage and went to the second level. Upon their arrival on the second level, Beck testified that the man with Appellant had already broken into a late model Oldsmobile and was backing the car out of its parking space. Appellant was standing approximately fifteen feet away from the car. Detective Sykes, the fourth member of the unit, was also inside the garage and used his vehicle to block the Oldsmobile from backing out of the space. Detective Beck and Blanc used their car to block the exit ramp, at which point, according to Detective Beck's testimony, Appellant began to run past his vehicle. Beck momentarily grabbed Appellant by his jacket but he was able to break away. Detective Beck gave chase in his vehicle with the help of Detective Sowa who was on top of the building telling him in what direction Appellant was running. Detective Blanc took Detective Sykes' car and also joined in the pursuit of Appellant who was darting in and out of heavy traffic in an effort to escape. Detective Beck testified that he and the other officers pursued Appellant over fences and around buildings. Detective Blanc testified that he discovered Appellant in a parking lot underneath a car. Detective Beck was on the other side of the fence observing and starting to climb over the fence, which was about twelve feet high. Blanc pulled his weapon and -4- ordered Appellant from underneath the car. Appellant came out from under the car and lunged at Detective Blanc and grabbed his weapon. Blanc testified that Appellant was constantly yelling obscenities at him and finally yelled "shoot me mother fucker or I'm going to kill you." Blanc's testimony was that the struggle went on for about fifteen or twenty seconds and at one point Appellant had control of the gun and it was pointed at Blanc's stomach. Blanc was able to keep the trigger covered while fighting to regain control of the weapon. He also yelled to Beck "Bob, he's got my gun." Appellant eventually broke free and began to run again. However, Beck and Blanc caught him as he was attempting to climb a fence. The officers testified that Appellant fell from the fence onto the hood of the parked car. The owner of the late model Oldsmobile also testified to establish ownership of the vehicle and the fact that the car was stolen from him. Hearing the testimony of five witnesses Detective Beck, Detective Blanc, Detective Sowa, Lee Sims, and the owner of the Oldsmobile, the jury returned a verdict of guilty as to all counts. Appellant asserts three assignments of error, the first of which states: THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY -5- THE TRIAL COURT'S FAILURE TO GRANT A REQUESTED PRETRIAL CONTINUANCE. The standard of review, as it relates to a trial court's failure to grant a requested pretrial continuance, is that such a decision will be disturbed by a reviewing court only when it is shown that there has been an abuse of discretion by the trial court. United States v. Allen (6th Cir., 1975), 522 F.2d 1229, cert. denied 439 U.S. 1069. The case of State v. Holmes (1987), 36 Ohio App. 3d 44 enumerates the considerations that a trial court should contemplate when making a decision to grant or deny a request for continuance. Syllabus 1, of Holmes, citing State v. Unger (1981), 67 Ohio St. 2d 65, 67-68, reads: The allowance of a continuance in a criminal case is a matter that is entrusted to the sound discretion of the trial court. When evaluating a motion for a continuance, the court should consider: The length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. In this case, Appellant's request for a continuance was made at a time set for the start of the trial. This fact goes to the considerations of inconvenience to witnesses, opposing counsel, and the court. Further, in contemplation of the consideration of whether the requested delay is for legitimate reasons or whether it is dilatory, Appellant's counsel indicated to the court that -6- the request was due to Appellant's continuous representations to him that he was going to obtain counsel on his own as opposed to assigned counsel. With due respect to Appellant's integrity, it is not an unreasonable inference that such a request on the morning of trial could be dilatory, purposeful, or contrived. The consideration dealing with whether Appellant contributed to the circumstance which gave rise to the requested continuance yields an inference that Appellant was solely responsible for the circumstance giving rise to the request. Appellant was indicted by the Cuyahoga County Grand Jury on or about June 12, 1990. He requested a continuance on August 22, 1990. This span of time, coupled with the fact that over this period Appellant's counsel should have at some point began to realize that he might have to try the case, indicates that Appellant and his counsel should have or could have began to formulate a defense strategy, a list of potential witnesses, and an overall trial strategy. In light of the considerations enumerated in Holmes and Ungar, supra, it was not an abuse of discretion for the trial court to overrule Appellant's pretrial request for continuance. Appellant's assignment of error one is overruled. Appellant's second assignment of error states: THE APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY THE PURPOSEFUL MISCONDUCT OF THE PROSECUTOR. -7- Appellant argues, in support of this assigned error, that the prosecutor stated in his closing argument that it was a good thing that Appellant never got control of the detective's gun or the case would not be one alleging aggravated robbery but rather aggravated murder. At the outset, it must be noted that the objection was sustained. Further, the trial court gave three curative instruc- tions. The first one was given immediately after the prosecutor's comments when the trial court instructed the jurors to disregard the statements, in response to Appellant's counsel's objection which was sustained and counsel's statement that his objection was based on the fact that the remarks were outside of the evidence. Secondly, the trial court told the jurors that "statements and answers that they were instructed to disregard are not evidence and must be treated as though you had never heard them." Thirdly, at the outset of the trial, the trial court instructed the jurors that they "must not consider as evidence any statement of any attorney made during the trial." In the case of State v. Totty (December 14, 1983), Cuyahoga App. No. 47152, unreported, this court enumerated the factors that the reviewing court must consider with respect to whether a fair trial was denied. The reviewing court must consider, 1) the nature of the remarks, 2) whether an objection was made by counsel, 3) whether corrective instructions were given, 4) the strength of the evidence against the accused. Id. -8- The trial court deemed the nature of the remarks to be improper because he immediately sustained the objection of Appellant's counsel, instructed the jury to disregard the comments, and struck them from the record. This court cannot declare this evidentiary ruling to be an abuse of discretion by the trial court. Secondarily, an objection was made by counsel and sustained by the trial court. Thirdly, three distinct curative instructions were given by the trial court. Lastly, as will be discussed in Appellant's third assignment of error, the evidence was adequate legally to overcome a sufficiency challenge. Appellant's second assignment of error is overruled and Appellant was not denied a fair trial based on improper remarks by the prosecutor. Appellant's third assignment of error states: THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS. The law on the issue of evidence sufficiency is both longstanding and straight-forward. The United States Supreme Court, in Jackson v. Virginia (1979), 443 U.S. 307, held that a criminal defendant is denied due process of law, when his convic- tion is not supported by sufficient evidence to prove his or her guilt of every element of the crime charged beyond a reasonable doubt. The test for claims of insufficient evidence is put forth in State v. Martin (1983), 20 Ohio App. 3d 172; it states: -9- As the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in a 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. A. The State failed to prove beyond a reasonable doubt that Mr. Smith had on or about his person, or under his control a firearm. The issue, regarding the crime of aggravated robbery with a firearm specification, is whether the prosecution proved that Appellant had a firearm on or about his person or under his control. Appellant suggests that since the prosecutor made the remarks complained of in assignment of error two that the comments were indicative of Appellee's failure to prove that Appellant had the gun under his control. Unfortunately, Appellant fails to recall that comments made by counsel are not considered evidence. In this regard, Appellant's argument is spurious at best. Detective Blanc was the only one that testified in detail about the struggle over the weapon. In response to the question "at this point in time, did he have control of your gun?" Detec- tive Blanc responded "yes, he did." Appellant did not take the stand. Therefore, this is the only evidence available to the jury on the element of whether Appellant had the gun under his control. The record does not reflect, as Appellant represents, that Detectives Beck and Blanc both testified in no uncertain -10- terms that Blanc never lost control of his weapon. (Emphasis added.) When this court utilizes the test in Martin, supra, there is evidence in the form of Detective Blanc's testimony that when it is viewed in a light most favorable to the prosecution along with the reasonable inferences drawn from it that could prove to a rational trier of fact that Appellant had the weapon under his control beyond a reasonable doubt. B. The State failed to prove beyond a reasonable doubt that Mr. Smith did knowingly obtain or exert control over property without the consent of the owner. The evidence elicited at trial was that two males, Appellant and another man, were alone on the second level of the garage. The officers saw the men arrive together and go up to the second level together. The other male, identified as Ishmael Pettigrew, had actually broken into the Oldsmobile and was backing it out of its parking space. Appellant was standing only five yards away from the car as it was being backed out. A window in the car had been broken out and the steering column was peeled to start the car without a key. Appellant immediately fled the scene and had in his possession both a pair of vise grips and a screwdriver, two tools common to a car thief. Aid and abet are two terms that have been defined by this court in the case of State v. Sims (1983), 10 Ohio App. 3d 56. The definition of an "aider and abettor," within the meaning of R.C. 2923.03(A)(2), is one who assists or encourages another to com- mit a crime, and participates in the commis- -11- sion thereof by some act, deed, word, or gesture. Id. at Syllabus 1. Conspiracy and common purpose, among two or more persons, to commit a crime need not be shown by positive evidence but may be inferred from circumstances surrounding the act from a defendant's subsequent conduct. Participation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed." State v. Pruitt (1971), 28 Ohio App. 2d 29, 34. When the State relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. State v. Jenks (1991), 61 Ohio St. 3d 259. Applying these legal principles to the instant case, a rational trier of fact could conclude that Appellant assisted or encouraged the car theft, that he participated because he had the vise grips and screwdriver, as well as coming to the garage with Pettigrew and entering the garage with Pettigrew. Furthermore, in light of Pruett, supra, conspiracy and common purpose need not be shown by positive evidence but may be inferred by circumstances surrounding the act and from Appellant's subsequent -12- conduct. (Emphasis added.) Appellant had in his possession tools common to car thieves and he ran from the police. Viewing this evidence in a light most favorable to the prosecution and the inferences reasonably drawn therefrom, a rational trier of fact could conclude beyond a reasonable doubt that Appellant aided and abetted the commission of the grand theft of the automobile. C. The appellant was convicted trespassing with the purpose to commit a felony with evidence which was insufficient. [sic] This court agrees with Appellee that State v. Barksdale (1983), 2 Ohio St. 3d 126 is readily distinguishable in that the used car dealer extended a privilege to the public to come onto the lot and view the cars. With such a privilege to the general public and no fee for admission, Barksdale could not be deemed a trespasser. However, State v. Lyons (1985), 18 Ohio St. 3d 204 is applicable to the instant case. The Ohio Supreme Court held that for purposes of R.C. 2911.13(B), an otherwise unauthorized entry upon property restricted to those who pay a fee constitutes trespass where the person entering the property manifests no intention to pay the fee. Appellant entered the garage with no manifestations indicative of an intent to pay the fee. Clearly, there was no authorization for Appellant and Pettigrew to be on the premises to steal cars. With all the reasonable inferences that can be -13- drawn from the evidence, a rational trier of fact could conclude that Appellant was a trespasser beyond a reasonable doubt. D. Mr. Smith was convicted of possession of criminal tools on evidence which was insufficient as a matter of law. R.C. 2923.24(B)(2) states "possession or control of any substance, device, instrument, or article designed or specially adapted for criminal use is prima-facie evidence of criminal purpose." This language is expressly included in R.C. 2923.24 Possession Criminal Tools. There was sufficient evidence on the record that Appellant was in possession of vise grips and a screwdriver. The officers, who were experienced in the modus operandi of car thieves, testified that these tools are common to that modus operandi. Appellant and Pettigrew entered the garage and went to the second level of the lot. When the detectives arrived on the second level, Pettigrew was backing the car out, the column was peeled, and a window was broken. There was sufficient evidence on the record from which a rational trier of fact could conclude that all of the essential elements of possession of criminal tools was present. Thus, for all the foregoing reasons, Appellant's third assignment of error is overruled. Judgment affirmed. -14- 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. FRANCIS E. SWEENEY, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .