COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60962 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DELMAR CUTLIP, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-255,986 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Patricia M. Walsh P.O. Box 135 Rock Creek, Ohio 44084 -2- NAHRA, P.J.: On August 1, 1990, Joseph Weaver received his General Assistance check of $148.00. Weaver needed cash in order to pay his rent of $140.00. At approximately 8:30 p.m., Weaver walked to Holtz's bar, located near Jefferson Avenue and Professor Avenue, with Delmar Cutlip, defendant-appellant, and Roman Gvozd. Weaver cashed his check and was going to leave the bar when the bar owner stopped Weaver and requested that he take Cutlip and Gvozd with him since they were "getting rowdy". Weaver then asked Cutlip and Gvozd to leave the bar. The three proceeded to walk down the street. Weaver testified that suddenly Cutlip and Weaver began swinging at him and struck him in the face. Weaver fell to a sitting position on the ground. Both Cutlip and Gvozd kept hold of him. Gvozd reached into Weaver's front pocket; Gvozd then demanded that Weaver give him his money. Weaver removed his wallet from his back pocket and gave Gvozd $140.00 in cash from the proceeds of the check that he had cashed. Cutlip and Gvozd fled from the area. Weaver walked to a phone and called the police to convey what had happened to him. When the police arrived shortly thereafter, Weaver spoke with them again about what had happened. Later in the evening, the police returned with Cutlip in the back of their zone vehicle. Weaver identified Cutlip as one of his assailants. Weaver revealed that he sustained bruises and cuts to his head and face, but did not require medical attention. He asked -3- the police to escort him to his landlord's home to explain why he did not have his money to pay the rent. Melanie Hancock testified that she observed Weaver scuffling with Cutlip and Gvozd as she was driving up Jefferson Avenue on August 1, 1990 at approximately 8:30 p.m. Hancock was driving with her mother who wanted to investigate; Hancock pulled the car up about fifteen feet from where the three men were situated. Hancock saw Cutlip and Gvozd hitting Weaver in the face. She also noticed that Weaver was trying to dodge their punches; Weaver slid down into a sitting position against the building. Hancock then observed Weaver remove his wallet from his pocket; she further testified that Cutlip and Gvozd grabbed money from the wallet and ran down an alley. According to Hancock, Weaver's face was bloodied and he appeared scared and very shaken. Weaver told Hancock that "I've just been robbed" upon her approach to him. When the police arrived, Hancock told them that she had witnessed the incident and then made an oral report. Patrolman Kevin Dunlay of the Cleveland Police Department testified that he responded to a call concerning a robbery on August 1, 1990 between 8:30 p.m. and 9:00 p.m. which took place near Professor and Jefferson Avenues. Dunlay observed that Weaver appeared to have been knocked down and that he had marks on his face and upper body. Based on the description of Weaver's assailants, Dunlay searched the neighborhood and found Cutlip. -4- Cutlip testified that he met Weaver while doing community service at St. Augustine's Church as part of a court imposed sentence for a prior crime. On June 27th or 28th, 1990, Cutlip asserted that Weaver approached him and asked him if he would be interested in assisting in a scheme to make some money. Weaver apparently sought to cheat his landlord by staging a robbery and telling the landlord that his rent money had been stolen. Cutlip's role was to be a witness who would corroborate Weaver's story. Then the two could use the money to buy and sell crack cocaine. Cutlip claims that he told Weaver that he was uninterested in such a scheme. Weaver, according to Cutlip, told him to think about it for a couple of days. Cutlip further testified that he saw Weaver again on August 1, 1990. The two met on the corner of Professor and Thurmond Avenues where they shared a forty ounce bottle of beer. Weaver allegedly asked Cutlip if he wanted to do some crack cocaine; Cutlip declined, but agreed to make certain no one saw Weaver smoke crack in an alley. After Weaver came out of the alley, they drank more beer and met Gvozd. The three sat in a car nearby and decided to get more beer. Then the three walked to Holtz's bar to cash Weaver's check. Once there, Gvozd bought a round of drinks and went to play the jukebox. At such time, Cutlip alleges that Weaver approached Cutlip about staging a robbery and telling the police and his landlord about it. Cutlip claims he declined such offer. -5- Weaver suggested that the three leave the bar to go to the Hi and Dry Bar where Weaver's girlfriend worked. Cutlip then told Weaver that it was his turn to buy a round of drinks. Cutlip alleged that Weaver pulled away from Cutlip and Gvozd and that Weaver struck Cutlip. In doing so, Weaver allegedly said: "Bitch, I ain't buying you nothing." In response, Cutlip struck Weaver; Gvozd proceeded to grab Weaver and push him out of the way. Gvozd told them to cool it and asked Weaver if he was all right. Cutlip revealed that a woman pulled up in her car to see what had transpired, but that Gvozd told her that it was none of her business; Gvozd and Cutlip then walked away. Cutlip denied that he had threatened Weaver or that he had taken Weaver's money. At the time of his arrest, Cutlip claimed that he possessed $25.42. Gvozd's testimony essentially corroborated Cutlip's testimony but made no mention of Weaver's use of drugs. Cutlip was indicted on one count of robbery pursuant to R.C. 2911.02. The indictment also alleged a prior aggravated felony specification. On October 24, 1990, trial ensued and a jury found Cutlip guilty. The trial court sentenced Cutlip to a prison term of eight to fifteen years. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, TO -6- COMPULSORY PROCESS, TO PRESENT A DEFENSE, TO CONFRONTATION OF WITNESSES AND TO THE PRESUMPTION OF INNOCENCE WHEN THE COURT DENIED DEFENSE COUNSEL'S REQUEST FOR A CONTINUANCE. The decision whether or not to grant a continuance is within the sound discretion of the trial court. State v. Unger (1981), 67 Ohio St. 2d 65, 423 N.E.2d 1078, syllabus. Cutlip asserts that the trial court abused its discretion by failing to grant his motion for a continuance. Cutlip asserted that his attorney needed more time to prepare a defense by locating a particular witness the identity of whom Cutlip could not make known. As a result, Cutlip maintains that he received ineffective assistance of counsel. Cutlip also sought additional time to acquire non-prison clothing. A review of the transcript before us reveals that Cutlip waived the issue of ineffective assistance of counsel. After a full discussion with court and counsel, Cutlip opted that trial proceed and knowingly, intelligently, and willingly waived raising the issue of a continuance on appeal. Evid. R. 103(A)(1); State v. Williams (1977), 51 Ohio St. 2d 112, 364 N.E.2d 1364. As a result, we need not address Cutlip's allegations herein with respect to his claim of ineffective assistance of counsel. The record also indicates that the trial court gave Cutlip an additional day to secure non-prison clothing. However, Cutlip's wife apparently failed to bring such clothing to him prior to trial. Cutlip was unable to provide an adequate reason -7- why she did not deliver non-prison clothing. We do not believe that the trial court abused its discretion by denying Cutlip's request for a continuance. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY DENYING APPELLANT'S REQUEST FOR A BOND REDUCTION TO ENABLE HIM TO ASSIST WITH THE INVESTIGATION OF HIS CASE AND THEREBY DENIED APPELLANT HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, TO COMPULSORY PROCESS, TO REASONABLE BAIL AND TO PRESENT A DEFENSE AS GUARANTEED BY THE CONSTITUTIONS OF THE STATE OF OHIO AND THE UNITED STATES. Cutlip asserts that the trial court abused its discretion by refusing to reduce his bond from $5,000.00 to $2,500.00. Cutlip had sought such a reduction in exchange for a waiver of his right to a speedy trial. In fixing bail, the trial court must apply the standards set forth in Crim. R. 46(F). Such rule states: In determining which conditions of release will reasonably assure appearance, the judge or magistrate shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or of failure to appear at court proceedings. In setting bail, a trial court should set an amount which is reasonable Abbot v. Columbus (1972), 32 Ohio Misc. 152. It is within the sound discretion of the trial court to determine what -8- bail is or is not reasonable. In Re Gentry (1982), 7 Ohio App. 3d 143, 454 N.E.2d 987, paragraph four of the syllabus. Such determination depends upon all of the facts and circumstances in each individual case. Id. Cutlip was charged with the crime of robbery which is an aggravated felony of the second degree. The robbery in question involved violence. The indictment also included a prior aggravated felony conviction concerning a 1988 robbery. Cutlip also had a conviction in 1979 for aggravated robbery and one in 1980 for grand theft. In view of the fact that Cutlip would not likely receive probation, the trial court could reasonably have concluded that he might flee the jurisdiction. In view of the serious nature of the charge against Cutlip and the possibility that he might flee the jurisdiction, we find that the bail set was neither excessive nor unreasonable. As a result, we do not believe that the trial court abused its discretion by setting bond at $5,000.00 and refusing to reduce such amount to $2,500.00. Appellant's assignment of error is overruled. III. Appellant's third assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. If -9- there was sufficient evidence for a jury to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 109 S. Ct. 1177; State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922. Cutlip asserts that the testimony of the state's witnesses, Weaver, Hancock, and Dunlay, lacked credibility. He maintains that it is illogical that a robbery could have been committed in broad daylight. Our review of the record indicates that there was sufficient evidence for a jury to find Cutlip guilty of robbery beyond a reasonable doubt. Evidence in the record indicates that Cutlip and Gvozd knew Weaver had money and proceeded to strike him in the face in order to take such money from him. Melanie Hancock, an eyewitness, testified that she witnessed the crime. We find no reason to disturb the jury's evaluation of the witnesses' credibility. We do not believe that the verdict is against the manifest weight of the evidence. Appellant's assignment of error is overruled. The judgment of the trial court is 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 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. ANN McMANAMON, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .