COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60748 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROMAN GVOZD : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-255986 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ZYGMUNT G. SLOMINSKI, ESQ. Cuyahoga County Prosecutor 1280 West Third Street JOHN A. CLOUGH, ESQ. Third Floor Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - BLACKMON, J.: The defendant-appellant, Roman Gvozd, appeals his conviction for robbery in violation of R.C. 2911.02. The appellant raises two assignments of error in which he claims the denial of effective assistance of counsel and challenges the verdict as being against the manifest weight of the evidence and not supported by sufficient evidence. For the reasons set forth below, we affirm. The appellant and co-defendant, Delmar Cutlip, were indicted on October 9, 1990 for one count of robbery with violence and 1/ aggravated felony specifications . The appellant's and Cutlip's jury trial commenced on October 23, 1990 after appellant's attorney withdrew a previously filed motion for continuance. The jury returned a guilty verdict on October 25, 1990. The trial court subsequently sentenced appellant to a term of eight (8) to fifteen (15) years. Joseph Weaver, the victim of the robbery for which appellant and Cutlip were charged, testified that he received his $148 welfare check on the afternoon of August 1, 1990. He intended to pay his $140 rent with the money so he planned to cash it later that day at a bar called Annie Holtz's. At approximately 8:30 p.m., Weaver asked an acquaintance to drive him to Holtz's but when the acquaintance refused, he eventually walked to the bar with appellant and Cutlip. Appellant and Cutlip were aware of the purpose of the trip. Weaver explained that he recognized 1/ Cutlip was twice convicted of robbery in 1977 and 1988. Appellant was convicted of aggravated robbery in 1977 and robbery in 1981. - 3 - Cutlip from the neighborhood but knew neither he nor appellant before that day. The three men arrived at Holtz's where appellant treated Weaver and Cutlip to a round of drinks. Weaver in the meantime cashed his $148 check and received $145 in cash. He then decided to leave the bar approximately five (5) to ten (10) minutes after his arrival, but was interrupted by Annie Holtz, who told him to take the "rowdy" appellant and Cutlip out of the bar. Weaver, appellant, and Cutlip thus exited Annie Holtz's. The threesome walked down the street with their arms around one another in a "buddy-buddy" fashion. They planned to go to another bar after Weaver paid his rent. According to Weaver, the next thing he knew, appellant and Cutlip started "swinging" at him. Weaver found himself sitting on the ground, held by his companions. Appellant stopped "swinging", reached into Weaver's front pocket and said, "[w]here is the money; give it to me now or else". Appellant and Cutlip immediately grabbed the money from Weaver's hand as he removed it from his back pocket, and ran. Weaver described that he sustained bruises and cuts to his head as a result of the encounter with appellant and Cutlip. He also testified that the two men were in possession of an estimated $140 of his money. A red car occupied by two women pulled up to Weaver after the incident. Other people were also in the area. He conversed with the women and then walked to a telephone to call the police. - 4 - Weaver discovered that another individual already called the police so the individual allowed Weaver to speak to the police. The police arrived and learned of the details from Weaver. Weaver was then escorted to his apartment where he informed his landlord of the stolen rent money. Melanie Hancock testified that she observed "some scuffling going on to the left-hand side" as she drove up Jefferson Avenue on August 1, 1990. It was broad daylight at the time. She turned to her mother who was also in the vehicle and said, "Let's go down and see what's going on." Hancock pulled the vehicle right up in front of the scuffle, and watched it. She witnessed two men whom she later identified as appellant and Cutlip hitting Weaver in the face. Weaver slid to a sitting position and took out his wallet. Appellant and Cutlip grabbed the money that somehow fell out of Weaver's wallet and ran behind a building into an alley. Hancock then asked Weaver if he was all right. He responded, "I've just been robbed." She described his appearance; there was blood on his face and he seemed to be scared and shaky. Hancock then related her observations to the officers who responded to the call of the robbery. Patrolman Kevin Dunlay of the Cleveland Police Department was assigned to the Second District on August 1, 1990. He testified that he investigated a reported robbery at the location of Professor and Jefferson Avenues between 8:30 and 9:00 p.m. - 5 - He discovered Weaver and described his physical condition; he had marks and dirt on his face and upper body, "like he had been knocked down". Weaver was also highly excited and very upset. Weaver refused medical attention but requested the officer accompany him to his residence so that Weaver could explain to his landlord why he could not pay his rent. Dunlay received the assailants' descriptions from Weaver and learned that one assailant's nickname was "Bill". Further investigation revealed that "Bill" was Cutlip and Cutlip frequented the area of West 10th and Railway. Dunlay proceeded to West 10th and Railway where he discovered one suspect standing in front of a bar. He exited the patrol car and apprehended the suspect, Cutlip. An unspecified amount of cash was found on Cutlip's person; however,it did not amount to $140. The second suspect fled northbound on West 10th and was, therefore, not apprehended at this time. The officer, however, recovered information that Cutlip was often accompanied by a male named Roman while he drank at the West 10th bar. Dunlay then returned Cutlip to the site of the robbery where Weaver identified him in a "cold-stand" as one of his assailants. The identification occurred approximately forty-five (45) minutes after the robbery. Appellant's and Cutlip's counsel moved for acquittal after the close of the state's case. The trial court denied both motions. - 6 - Cutlip was the first defendant to testify at trial. He testified that he met Weaver while he did community service at St. Augustine's Church at West 14th Street. Weaver would occasionally come to the church for a meal. Sometime in late June of 1990, Weaver approached Cutlip at the church with a money-making scheme. Weaver explained that his welfare check could be used to purchase some crack cocaine and the cocaine could be resold, doubling the money. Cutlip's role was to witness the "robbery" of Weaver's check so Weaver cold avoid being evicted by his landlord for nonpayment of rent. Cutlip testified that he declined the offer to participate in the scheme. On August 1, 1990, Cutlip next encountered Weaver at the corner of Professor Avenue and Thurmond Alley. The two men shared a 40-ounce bottle of beer. Cutlip then refused Weaver's offer to do some crack cocaine. Weaver smoked the crack cocaine in the alley while Cutlip stood at the mouth of the alley. He then exited the alley and spoke with Cutlip for a few more minutes as they finished the beer. Appellant now appeared and was introduced to Weaver by Cutlip. The three men chatted a little bit and Weaver decided to sit down in a nearby car. Since the beer was all gone, Cutlip and appellant decided to buy more beer. Weaver, however, offered that he was headed to Annie Holtz's to cash his check and he would buy some beer if they accompanied him. - 7 - Once at the bar, appellant purchased at least one round of drinks. Appellant then went over to the juke box and Weaver again approached Cutlip with his money-making scheme. Cutlip repeated his refusal to participate. A few minutes later Weaver suggested, and Cutlip and appellant agreed, that they leave Annie Holtz's and go to a bar called Hi & Dry on West 11th Street. Cutlip testified that the three men proceeded like buddies to the Hi & Dry. During their walk, Cutlip commented that it was Weaver's turn to buy the drinks. Weaver "snatched away" and hit Cutlip, stating, "I ain't buying you nothing, bitch." Cutlip and appellant struck back at Weaver, with appellant coming between the other two men. Weaver then sat down, stated he was all right but that he now did not want to go to the bar. At this time, a vehicle pulled up, and a woman asked what was going on. Appellant remarked something like she should mind her own business. Appellant then announced he wanted nothing to do with what was happening and left the area via Thurmond Alley. Cutlip chased after appellant. Appellant informed Cutlip that he was going home rather than to the bar; Cutlip, on the other hand, stayed on West 10th Street but never entered the bar. He remained on the corner, drinking beer, up until he was arrested by police officers. Cutlip denied that he ever ordered Weaver to give him his wallet or his money, that he took any money from Weaver, or that he planned to steal any money from Weaver. He also offered that he carried $25.42 at the time of his arrest. - 8 - Appellant testified that he met with his friend, Cutlip, between 6:00 and 6:30 p.m. on August 1, 1990 near Thurmond Alley. Cutlip and Weaver drank from a quart of beer as they stood near the alley. After Appellant was introduced to Weaver, Weaver sat down on a nearby car. Appellant, who consumed approximately eighteen (18) beers throughout that day and was now intoxicated, shared some of Cutlip's beer with Cutlip. Cutlip and appellant decided to purchase some more beer. Weaver, however, jumped off the car and proposed that they go to Annie Holtz's since he had to cash a check. Appellant testified that he purchased the first round of drinks. He played the juke box for a while and the three men left the bar approximately twenty (20) to thirty (30) minutes later so that they could go to the Hi & Dry bar. As they walked to the second bar, Weaver threw his arms around the other two men. Weaver "flies off and, man, he just went off and freaked right there" at Cutlip's suggestion that he purchase the drinks at the Hi & Dry. Appellant grabbed Weaver, and Cutlip hit Weaver, apparently in the nose because Weaver's nose bled. A "big, black guy" on the corner yelled, "[h]ey what's going on," to which appellant responded, "[n]othing, man. Nothing." Appellant then intervened in an attempt to stop the struggle. Weaver, at some point, sat down on his own accord. Two women then pulled up in a vehicle. Appellant recommended that they mind their own business. He then decided to leave the area because of his parole status. Cutlip followed - 9 - him into the alley. Appellant told Cutlip that he was going home but he did not do so. Appellant proceeded to another bar and consumed some more alcohol. He then returned to his home where he learned from his wife that the police were there earlier looking for him. Rather than contact the police as suggested by his wife, appellant went to bed. A couple of hours later, appellant's wife woke him up because the police arrived to arrest appellant. Appellant denied that he took any money from Weaver, that he saw anyone take any money from Weaver, that he viewed Weaver's wallet at any time, and that he was aware of the amount of Weaver's check or of any scheme between Cutlip and Weaver. Appellant's and Cutlip's renewed Crim. R. 29 motions were overruled by the trial court. Appellant's first assignment of error states: "THE LOWER COURT ERRED, AS A MATTER OF LAW, AND ABUSED ITS DISCRETION BY DEPRIVING APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO FUNDAMENTAL DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL IN CONTRAVENTION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION." Appellant's assignment of error is without merit and is overruled. Appellant complains that the trial court violated his constitutional right to the effective assistance of counsel and his right to due process in a fair and impartial trial. Specifically, he first avers that the court erred by relying upon and accepting his counsel's representation that appellant - 10 - knowingly elected to withdraw his motion for continuance. Second, he questions whether the court had an independent duty to inquire of his full and adequate understanding of the consequences of waiving his rights to the effective assistance of counsel. Finally, he queries whether the court had a duty to either order a continuance regardless of the withdrawal of the request for continuance or order separate trials. Appellant was indicted on October 9, 1990 and arraigned on October 15, 1990. Appellant was appointed counsel at his arraignment. A pre-trial was conducted on October 18, 1990 at which time the trial for appellant and Cutlip was scheduled for October 23, 1990. Appellant's counsel filed a motion for continuance prior to trial. The basis for the motion was inadequate time to prepare appellant's defense. However, when the trial court questioned appellant's counsel on the date of trial about the motion, counsel stated that appellant changed his mind and wished to proceed to trial with Cutlip. Counsel thus explained: "I told him that I would request to sever the defendants. We would not have a trial so that I could properly prepare for this case. He indicated to me that it is his decision to forego the continuance and to forego the procurement of the preliminary hearing and go forward with Mr. Cutlip as the co-defendant. "I fully advised him that it is, frankly, against my advise [sic] to do so, but it is his decision, and the Court can inquire of him and of the fact that he does not wish to have a continuance and wishes to go forward at this time." Appellant was then offered the opportunity to address the court. He stated: - 11 - "Your Honor, I don't -- I don't know. I'm out of my field here, and I don't know what I should do or what I really shouldn't do at this time. "You know, I will be honest with you. I don't know if it is better for me to waive that or for me to go with it. I'm pretty confused. "I'm trying -- I'm trying -- I'm trying to do something here with my life. I'm not trying to throw it away, down the drain, and I don't want to make no mistakes, if I can avoid any mistakes at all. I don't really -- like I said, we ain't had time to redo nothing. Then, again, I'm thinking of the speedy trial and my co- defendant here. He -- he's on his speedy trial rights, and I'm thinking I'm entitled to the same spot. The same rights as he is because we're on this indictment. Again, we were charged together. So I don't know your Honor. I don't really know what I should do." At first glance, it appears that appellant was confused about whether he was entitled to the same speedy trial rights as Cutlip. However, since a parole holder was placed on appellant because his arrest violated his parole, the triple count provision was inapplicable to appellant. State v. Dunkins (1983), 10 Ohio App. 3d 72; State v. Davis (Sept. 25, 1986), Cuyahoga App. No. 50979, unreported; State v. Turner (Apr. 11, 1985), Cuyahoga App. No. 48514, unreported; State v. Connors (Feb. 14, 1985), Cuyahoga App. Nos. 48582, 48682, unreported; see, State v. Martin (1978), 56 Ohio St. 2d 207. Appellant's counsel explained this concept to appellant as demonstrated by the following: "If I could clarify, your Honor? What I have explained to him is that, even if Mr. Cutlip's case was dismissed for whatever reason, for a speedy trial, that would not apply to him. That, as he has a parole hold on him, the state's time counts one for one. The state has the full 270 days to try his case. - 12 - "He, frankly, doesn't believe I'm telling him accurately or is questioning that advice, and I believe I'm giving him what his speedy trial rights are, and that is why I am asking for the continuance so that I can have more time to prepare.***" At this point, the trial court interjected by stating: "Sir, what your attorney has indicated to you is that he does not feel that he has had adequate time to prepare your case so that he can be the most effective representative of your case as he can be; however, at this point, these cases are together, and will have to forward [sic] together because Mr. Cutlip's case is running out of time. We have to try him, or he would walk without ever being tried; ***" The trial court then asked appellant if he understood what had just been said, and appellant responded that he did understand. The court then proceeded as follows: "Therefore, unless he [Cutlip] waives his speedy trial right, then you are going to be in a position of doing one of three things: First, asking the Court to sever, and to separate the trials, which the Court would have to hear the reason for doing it, and I may or may not grant it. Secondly, frankly, that's the only choice you have. "If I didn't grant your Motion for a severance, you would have to go to trial at the same time that the co- defendant goes to trial, and it is my understanding, if I'm correct, Mr. Mullin [Cutlip's counsel], he is not willing to waive the speedy trial but just wants to continue it until tomorrow?" The trial court subsequently allowed appellant's counsel to address the court as to the motion for continuance. Counsel stated: "Well, your Honor, I have gone over this, again, and I told him [appellant], but just for the record, I was given oral discovery by Mr. Clough [the prosecutor] on the 18th [of October]. I saw my client on the 18th. I saw him again on the 22nd, and over the weekend, I was unable to prepare for trial. I had a capitol [sic] oral argument in State versus Michael Keenon, on the - 13 - 22nd, at 10:00 in the morning, and I have asked my client, frankly, and it is my opinion, that I should have more time to prepare, in particular, as this is a one-on-one case where it is credibility of the defendants and the victim in this case, and there is a preliminary hearing which I think is essential for cross-examination of that witness; however, Mr. Gvozd has told me he wants to go forward with trial now and does not want to sever the count. I told him he is waiving the ineffective assistance for appeal. He told me -- he stated he understood that. That he wanted to go ahead now. (Emphasis added.)" The trial court thereafter inquired of appellant whether his counsel spoke correctly. Appellant answered in the affirmative. Appellant asserts that the withdrawal of his motion for continuance essentially deprived him not only of the effective assistance of counsel, but of counsel itself. He argues, therefore, that the trial court erred in not determining whether he voluntarily, knowingly, and intelligently waived his right to counsel. This convoluted argument ignores the fact that appellant was indeed represented by counsel throughout trial. The issue thus becomes whether appellant was denied the effective assistance of counsel due to his proceeding to trial eight (8) days after he was appointed counsel. Ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." State v. Bradley (1989), 42 Ohio St. 3d 136, at paragraph two of the syllabus. A showing of prejudice requires proof "that there exists a reasonable probability that were it not for counsel's error, the result of the trial would have been different." Id., paragraph three of the syllabus. - 14 - In the case sub judice, contrary to appellant's assertion, the record amply demonstrates that his counsel advised him to seek a continuance so that counsel could have more time to prepare a defense. The record moreover amply discloses that it was appellant himself who sought to proceed to trial against his counsel's advice. As stated supra, both appellant's counsel and the trial court explained that he could seek either a continuance or severance and that he was not entitled to the same speedy trial rights as Cutlip. Therefore, appellant's counsel's performance did not fall below an objective standard of reasonable representation and appellant was thus not denied the effective assistance of counsel. Appellant cites to this court's opinion in State v. Pavone (May 5, 1983), Cuyahoga App. Nos. 45202, 45203, unreported, to support his argument that counsel was ineffective since he did not have sufficient time to prepare his defense. In Pavone, the defendant had retained counsel. His counsel, however, failed to appear for several scheduled hearings and the defendant consequently was provided a new attorney by the trial court at the last of the hearings. The hearing commenced without any conference between the defendant and counsel. Counsel appeared to have some knowledge of the case but did not cross-examine the state's chief witness, object to hearsay, or call any witnesses, including the defendant. We found that these circumstances, the late appointment of defendant's counsel, the lack of consultation, the exclusion of chosen counsel, and the lack of - 15 - cross-examination or the calling of any witnesses, constituted inadequate representation. However, the facts in Pavone are easily distinguished from the instant case. Here, although appellant and Cutlip were brought to trial fourteen (14) days after their indictment, appellant was not totally denied consultation with his counsel. Moreover, appellant's counsel received oral discovery from the state, cross-examined witnesses, and called the defendant to the stand. Appellant's reliance on counsel's failure to cross- examine Hancock in support of his claim that he was denied effective assistance of counsel does not alter our finding. The fact that counsel had yet to receive a preliminary hearing transcript which contained Hancock's prior testimony does not mean that counsel could not have cross-examined Hancock if he chose to do so. Counsel had adequate facts to challenge her testimony in cross-examination. As to appellant's claim that the trial court was under a duty to order either a continuance or separate trial, the trial court has no such duty absent an application for separate trial. R.C. 2945.13. Appellant explicitly withdrew the motion for continuance, desiring to proceed to trial with his co-defendant. Appellant never requested a separate trial even though he was made aware of its availability and the trial court's power to grant or deny the request. Appellant's first assignment of error is overruled. Appellant's second assignment of error provides: - 16 - "THE VERDICT AND JUDGMENT RENDERED BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INSUFFICIENT AS A MATTER OF LAW." This assignment of error is without merit and is overruled. Appellant asserts in his second assignment of error that the jury's verdict is not supported by sufficient evidence and that it is against the manifest weight of the evidence. He argues that the state failed to demonstrate that force or a threat of force was used against Weaver by the defendants while they were attempting to commit a theft offense. Moreover, appellant stresses that the testimony of Weaver and Hancock was less credible than that of him and Cutlip. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. The essential elements of the offense of robbery are as follows: "(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another." - 17 - R.C. 2911.02(A). Theft is defined in R.C. 2913.02 as follows: "(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; "(4) By threat." Two of the essential elements of the offense of robbery are 1) knowingly obtaining or exerting control over the property of another without the owner's consent, 2) by using force against the owner. The record in the instant case reveals evidence which, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find all the essential elements of robbery beyond a reasonable doubt. Weaver was in the company of appellant and Cutlip when all of a sudden, appellant and Cutlip attacked Weaver. Appellant and Cutlip knew that Weaver just cashed his $148 check. Weaver slumped to the ground while still being held by his companions. Appellant stopped hitting Weaver, reached into Weaver's front pocket and asked where he kept the money he received from cashing his welfare check. Both appellant and Cutlip grabbed the money from Weaver's hand as he removed it from his back pocket. Hancock witnessed the events, corroborating how Weaver slumped to the ground and appellant and Cutlip took the money from him. Weaver responded - 18 - that he was just robbed when asked by Hancock if he was all right. Hancock identified appellant and Cutlip at trial as Weaver's assailants. Appellant's conviction is thus supported by sufficient evidence. Though evidence may be sufficient to sustain a guilty verdict, an appellate court has the power to determine that the verdict is against the weight of the evidence. State v. Robinson (1955), 162 Ohio St. 487. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court, when addressing whether a verdict is against the manifest weight of the evidence, reviews: "*** the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Davis (1988), 49 Ohio App. 3d 109, 113. In the case sub judice, the state presented competent, credible evidence that appellant obtained control over Weaver's money without Weaver's consent by the use of force. The trier of fact could reasonably conclude that he committed a robbery. Hence, the jury's verdict was not against the manifest weight of the evidence. Appellant's second assignment of error is overruled. Judgment affirmed. - 19 - 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. J.F. CORRIGAN, P.J., and LEO SPELLACY, J., CONCUR. PATRICIA ANN 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .