COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61130 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ARTHUR BEARD, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-250,558 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Craig T. Weintraub Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Regis E. McGann 450 Standard Building Cleveland, Ohio 44113 -2- NAHRA, P.J.: Arthur Beard, defendant-appellant, appeals his conviction for felonious assault, failure to comply with the order or signal of a police officer, and three counts of receiving stolen property based on events that took place on November 16, 1989 and March 6, 1990. On March 6, 1990, Cleveland police officer Gary Mullins and his partner, officer Kathleen Carlin, observed a 1989 Chevrolet pickup truck with a validation sticker that was peeled and cracked. Officer Mullins called into dispatch in order to get a listing on the vehicle and decided to follow the truck while waiting for a radio response. Beard, later identified as the driver, drove the truck into an alley, stopped, and made a motion for the officers to pass him. The officers elected not to pass the truck; Beard then drove the truck out of the alley and turned the wrong way on a one-way street. Officers Mullins and Carlin decided to activate their lights and pull the truck over to the side of the road. The officers exited their zone car and approached the vehicle. Officer Mullins approached on the driver's side and Carlin approached on the passenger's side. Mullins testified that he noticed that the steering column of the truck had been peeled and there was damage to the door post of the vehicle. He also observed that the window had been shattered on the driver's side. Mullins testified that Beard immediately stated that he knew that Mullins must have believed the car had been stolen, but that Beard had made a report to the police earlier in the night. Mullins requested Beard's driver's -3- license. Beard leaned over as though he were going to retrieve the license out of the glove compartment and then suddenly leaned back and elbowed Mullins in the chest. Mullins was knocked backward, but was able to regain his balance. Mullins then grabbed Beard by the coat through the driver's side window. At such time, Beard put the truck in gear and drove off with Mullins hanging on to him. Mullins testified that Beard kept trying to strike him to get him off of the truck. Mullins attempted to strike back at Beard with his flashlight but was unable to do so and the flashlight fell into the truck. Beard attempted to shake Mullins' grip by striking him. However, Mullins held on to Beard for approximately three blocks until Mullins lost his grip and fell from the truck. After falling from the truck, Mullins returned to his patrol car driven by officer Carlin who had followed the truck. Mullins and Carlin pursued the truck and broadcasted a description of the truck as well as Beard's clothing. Mullins discovered that the truck had been stolen. After the officers lost sight of the truck, they proceeded to Charity Hospital to treat officer Mullin's injuries. Officer Carlin corroborated Mullins' testimony that he was dragged for approximately three blocks at a high rate of speed before he fell from the truck. She further testified that she also observed Beard wearing a dark jacket, red cap and orange and blue hockey shoes when she approached the pickup truck on the passenger's side. -4- Shortly thereafter, Det. Bernard Ross, a twenty-five year veteran of the Cleveland Police Department, observed Beard operating a red pickup truck on E. 105th Street. Ross noticed that Beard looked over at him and then proceeded northbound at a rapid pace. Within seconds of observing the truck, Ross heard a broadcast of the pursuit and believed the red truck was the one involved in the felonious assault of a police officer. Ross broadcast the location and direction of the truck and pursued the vehicle. Ross testified that he observed Beard driving the vehicle to a nearby intersection. Ross observed Beard wearing a dark coat and red cap when the cars passed each other. Ross again broadcast his location as well as that of Beard's. After the truck went off the road, Beard exited the vehicle and ran through a field. Detective Ronald Taylor received a city wide broadcast which contained a detailed description of a bearded black male wearing a dark coat and red hat who was driving a newer model red pickup truck. Taylor later heard Det. Ross's broadcast and observed Beard near E. 105th and Ashbury lurking around the bushes outside of a home. When Taylor got out of his car, Beard walked over to a porch to lie down. Taylor testified that it was very cold outside; Taylor asked Beard why he was laying on a porch and about his identity but Beard did not respond. Beard indicated to Taylor that he was there to visit someone at the home. Taylor's inquiry of the homeowner revealed that she did not know Beard. Thereafter, Taylor transported Beard to Det. Ross. Taylor -5- searched the property where he apprehended Beard and found a red baseball cap and a dark colored coat located in the rear of the yard. Taylor further testified that Beard wore the same shoes that belonged to Stephen O'Malley whose pickup truck had been stolen. Detective Raymond Ashworth processed the pickup truck and found Det. Mullins' flashlight inside it. Ashworth also collected several fibers of carpet lint from the floor area underneath the brake and gas pedals. Joseph Serowick, a scientific examiner with the SIU of the Cleveland Police Department, testified that he analyzed trace fibers taken from the orange and blue hockey shoes Beard was wearing at the time of his arrest. Serowick compared such fibers with those taken by Det. Ashworth and determined that the fibers were a consistent match. Detective James Cudo testified that he organized two pre- trial lineups, one for officer Mullins and the other for officer Carlin. In both instances, the lineups consisted of five black males of the same weight and height. Cudo stated that all the participants wore their street clothes. Mullins identified Beard immediately. In the second lineup, Carlin identified the orange and blue hockey shoes that Beard was wearing during the lineup as being the same as worn by the perpetrator. The fourth and fifth counts of the indictment were based on events that transpired on November 16, 1989. On such day at approximately 5:00 a.m., officer Lawrence Remendowski of the -6- Garfield Heights Police Department observed a Cadillac travelling at 52 m.p.h. in a 30 m.p.h. zone. Along with his partner, Remendowski pulled the vehicle over and requested a driver's license. The driver was unable to produce the identification and the officers asked him to step out of the car. At such time, the driver, later identified as Beard, fled from the scene at a rate in excess of 80 m.p.h. The police pursued Beard until the Cadillac crashed into a street sign at 106th and Miles. Beard abandoned the car and was apprehended by the officers after a short chase on foot. Remendowski noticed that Beard was wearing two leather jackets, one of which was owned by Gregory Copeland. Copeland testified that his car, wallet and leather jacket had been stolen. Copeland's wallet was also found on Beard's person at the time of his arrest. In his defense, Beard called Marian Dillard as a witness in order to support his claim that he knew the woman who lived in the house where he was found on March 6, 1990. On March 20, 1990, Beard was indicted on one count of felonious assault of a peace officer with a violence specification, one count of receiving stolen property and one count of failure to comply with the order or signal of a police officer. In a separate indictment, Beard was charged with two counts of receiving stolen property pursuant to the events that transpired on November 16, 1989. The two indictments and cases were consolidated. Trial ensued and a jury found Beard guilty of -7- all five counts in the indictment. Thereafter, the trial court sentenced Beard. This appeal follows. I. Appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND CREATED PREJUDICIAL AND REVERSIBLE ERROR BY GRANTING THE STATE'S MOTION FOR JOINDER OF THE APPELLANT'S TWO CASES, IN THAT SUCH JOINDER WAS SEVERELY PREJUDICIAL TO THE APPELLANT AND VIOLATED OHIO CRIMINAL RULE 14. Beard argues that the joinder of the charges stemming from the March 6, 1990 incident with the charges resulting from the November 16, 1989 incident was improper pursuant to Crim. R. 8(A) and Crim R. 14. Beard contends that the two incidents were unrelated and did not constitute a consistent course of criminal conduct or a common plan or scheme. He asserts that the jury likely used evidence of guilt presented in the November 16, 1989 offense to convict him of the charges related to the March 6, 1990 incident. Under Crim. R. 8(A), the law favors joining multiple 1 criminal offenses in a single trial. State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. Two or more offenses may be 1 Crim R. 8(A) provides: Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. (Emphasis added.) -8- joined if they are of the same or similar character. State v. Torres (1981), 66 Ohio St.2d 340, 343, 42l N.E.2d 1288. An accused may move to sever under Crim. R. 14 if he can establish 2 prejudice to his rights. State v. Wiles (1991), 59 Ohio St.3d 71, 76, 571 N.E.2d 97. The accused must show that the trial court abused its discretion for an appellate court to reverse a trial court ruling that denies severance. State v. Lott, 51 Ohio St.3d at 163; State v. Strobel (1988), 51 Ohio App.3d 31, 554 N.E.2d 916, paragraph one of the syllabus. Here, the evidence with respect to each indictment is simple and direct. Officers Mullins and Carlin testified that Beard was pulled over and fled from the scene upon request for identification on March 6, 1990. Officer Remendowski testified that Beard sped away from him on November 16, 1989 after Beard had been pulled over for speeding. The two crimes in question are of similar character. Both incidents involved Beard's receipt of stolen property in the form of a motor vehicle, his immediate flight from police officers, and his propensity to wear his victim's clothing. Based on a review of the record, we believe that the jury was able to easily segregate the evidence pertaining to each 2 Crim. R. 14 provides: If it appears that a defendant * * * is prejudiced by a joinder of offenses * * * an indictment, information, or complaint, * * * the court shall order an election or separate trial of counts, * * * or provide such other relief as justice requires. * * * * -9- count in the indictment. The trial court did not err in joining the cases under Crim. R. 8(A). Appellant's assignment of error is overruled. II. Appellant's second and third assignments of error are interrelated and shall be examined together. They state: II. THE TRIAL COURT ABUSED ITS DISCRETION AND CREATED PREJUDICIAL AND REVERSIBLE ERROR IN REFUSING TO SUPPRESS THE EYEWITNESS IDENTIFICATION TESTIMONY OF OFFICERS MULLINS AND CARLIN IN THAT SUCH TESTIMONY WAS THE DIRECT RESULT OF AN IMPROPERLY CONDUCTED AND HIGHLY SUGGESTIVE LINE-UP (SIC) WHILE THE APPELLANT WAS IN CUSTODY WITHOUT THE BENEFIT OF COUNSEL. III. THE APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER UNITED STATES AND OHIO CONSTITUTION WHEN THE COURT REFUSED TO SUPPRESS THE UNDULY SUGGESTIVE EYEWITNESS IDENTIFICATION TESTIMONY PROCURED WHILE THE APPELLANT WAS IN CUSTODY WITHOUT BENEFIT OF COUNSEL. Beard asserts that the trial court erred when it failed to suppress the identification of Beard at trial by officers Mullins and Carlin inasmuch as such identification was the result of an unduly suggestive lineup procedure. The exclusion of identification testimony is required when pretrial identification procedures create a substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377. Initially, a determination must be made whether the procedure of identification was unduly suggestive. The appellant has the burden to show that the -10- procedure was both suggestive and unnecessary. State v. Sims (1984), 13 Ohio App.3d 287, 469 N.E.2d 554. The second step involves the degree of reliability of the identification. That is, even if the procedure was suggestive, as long as the identification is otherwise sufficiently reliable, the identification is admissable. State v. Moody (1978), 55 Ohio St.2d 64, 377 N.E.2d 1008. In Munson v. Braithwaite (1977), 432 U.S. 98, the United States Supreme Court noted that the reliability is the linchpin in determining the admissability of identification testimony and set forth the relevant factors to be considered: These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id. at 114; see also Neil v. Biggers (1972), 409 U.S. 188, 199- 200. Here, Beard fails to show how the identification procedures utilized by the state were suggestive or unnecessary. He merely indicates that the pretrial lineup was suggestive. Evidence in record indicates that officers Mullins and Carlin were not given any suggestions prior to their identification. Each officer identified Beard immediately. The officers were brought into the lineup room separately. The lineup, according to officer Mullins, consisted of four to five black males of approximately the same ages. Beard was not wearing the hat or coat that -11- Mullins had previously observed him wearing. The other black males were wearing street clothes in which they had been arrested. A review of the record indicates that Beard did not meet his burden and that the identification testimony of Mullins and Carlin was properly admitted into evidence. In addition, even if Beard were to show that the pretrial lineup was suggestive, Mullins and Carlin's identification testimony would still have been admissable insofar as it satisfies the criteria of reliability announced in Munson. Mullins observed Beard while Beard was seated in the stolen truck and when he asked Beard for some identification. After the incident in which Beard sped away, Mullins recalled that Beard was wearing a red hat, jacket and unique pair of shoes which Mullins broadcasted to his brethren in the police force. Officer Carlin, who stood at the side of the truck when Mullins asked Beard for identification, noticed the orange and blue hockey shoes that Beard was wearing along with the hat and jacket. Mullins had ample opportunity to view Beard and his attention was particularly sharp in view of Beard's unexpected acceleration of the pickup truck and attendant risk of injury that Mullins faced. Officer Carlin revealed that she was only two feet from Beard where she was able to get a good view of Beard's clothing. It also appears that a short period elapsed between the crime and the two officer's identification of Beard in the pretrial lineup. Mullins indicated that Beard looked similar to the man who had assaulted him and could identify Beard's clothing with certainty. -12- Carlin, too, was certain of Beard's shoes and clothing. Det. Ross testified at trial that he was positive that Beard was the man he had seen driving the stolen vehicle. We find that the pretrial identification procedure was not impermissibly suggestive and did not give rise to a substantial likelihood of irreparable misidentification. Beard also maintains that the identification procedure was tainted because he was deprived his right to counsel at the lineup. However, the right to counsel in a pretrial lineup attaches only when a formal charge has been made and not upon mere detention or arrest. State v. Strickland (1980), 63 Ohio St.2d 47, 406 N.E.2d 1110; State v. Shearden (1972), 31 Ohio St.2d 20, 285 N.E.2d 335; United States v. Wade (1967), 338 U.S. 218. Here, no formal charges had been brought against Beard at the time of the lineup. Appellant's assignments of error are overruled. III. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING THE APPELLANT'S RULE 29 MOTION AND CHARGING THE JURY ON FELONIOUS ASSAULT IN THAT THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED WHICH SHOWED THAT THE DEFENDANT KNOWINGLY BY MEANS OF A DEADLY WEAPON CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM, NECESSARY ELEMENTS REQUIRED FOR A CONVICTION OF FELONIOUS ASSAULT. At the close of the state's case in chief, Beard moved for a Crim. R. 29 acquittal. Such motion was denied by the trial court. Beard proceeded to present evidence on his own behalf. -13- At the close of his own case, Beard failed to renew his Crim. R. 29 motion of acquittal. As a result, Beard waived his right to claim that the trial court's denial of his motion for acquittal constituted error. State v. Deboe (1977), 62 Ohio App.2d 192, 406 N.E.2d 536; City of Cleveland v. Muntaser (Aug. 29, 1991), Cuyahoga App. No. 59021, unreported; see State v. Bale (Mar. 1, 1990), Cuyahoga App. No. 56619, unreported; see also State v. Seals (Oct. 31, 1985), Cuyahoga App. No. 49448, unreported. Accordingly, appellant's assignment of error is overruled. IV. Appellant's fifth and sixth assignments of error are interrelated and shall be examined together. They state: V. THE JURY VERDICT AGAINST THE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ALL THE ESSENTIAL ELEMENTS OF THE CRIME OF FELONIOUS ASSAULT, THUS CREATING REVERSIBLE. VI. THE JURY VERDICT AGAINST THE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS THE PERPETRATOR OF THE EVENTS IN THE INCIDENT ON MARCH 6, 1990. The weight to be given evidence and the credibility of witnesses are determinations to be made by the trier-of-fact. State v. Thomas (1982), 70 Ohio St.2d 79, 434 N.E.2d 1356. If there was sufficient evidence for the trier-of-fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the -14- evidence. State v. Brown (1988), 38 Ohio St.3d 305, 306, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 109 S. Ct. 1177; see State v. Eley (1978), 56 Ohio St.2d 160, 383 N.E.2d 132, syllabus. R.C. 2903.11, which defines the crime of felonious assault, states: (A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code; * * * R.C. 2923.11(A) defines the term "deadly weapon" as follows: "Deadly weapon" means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. R.C. 2901.22(B) defines "knowingly" as follows: (B) A person acts knowingly, regardless of his purpose when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. Beard asserts that there was insufficient evidence that he used the pickup truck as a deadly weapon to harm officer Mullins. Beard contends that the harm to Mullins was accidental and that Beard did intend to hurt him. Beard maintains that he was merely attempting to flee. In addition, Beard also argues that the testimony provided by the various police officers lacked -15- credibility and did not identify Beard as the driver of the pickup truck on March 6, 1990. A review of the record indicates that there was sufficient evidence to convict Beard of felonious assault as well as the other offenses for which he was convicted. Officers Mullins and Carlin testified that Beard drove approximately three blocks at a speed in excess of 60 m.p.h. during which Mullins was hanging on to Beard and the pickup truck. Mullins eventually fell from the truck and suffered injuries. In appropriate circumstances, an automobile may be a "deadly weapon" pursuant to R.C. 2923.11. State v. Grimsley (1982), 3 Ohio App.3d 265, 44 N.E.2d 1071; State v. Roberson (Sept. 20, 1984), Cuyahoga App. No. 48019, unreported. Any object can be a deadly weapon if it is capable of killing a person by virtue of the manner of its use. State v. Deboe (1977), 62 Ohio App.2d 1992, 406 N.E.2d 536. Here, there was sufficient evidence that Beard knowingly used the pickup truck as a deadly weapon when he drove away at excessive speed during a tussle with officer Mullins. We also believe that there was sufficient evidence to establish that Beard was the perpetrator of the events in question. The verdict of the jury was not against the weight of the evidence. Appellant's assignments of error are overruled. Accordingly, the judgment of the trial court is affirmed. -16- 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. CORRIGAN, JOHN F., J., and SWEENEY, JAMES D., 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. .