COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61265 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION BOOKER IVERSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-252282. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor David C. Sheldon Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: David L. Doughten, Esq. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Booker T. Iverson ("Iverson") appeals from his jury trial conviction of: Count One--Failure to Comply with the Order of a Police Officer [R.C. 2921.331], with a violence specification [R.C. 2941.143] based on a 1983 conviction for Kidnapping and Rape [R.C. 2905.01, 2907.02]; Count Two-- Felonious Assault [R.C. 2903.11], with a specification of physical harm [R.C. 2941.142] and a violence specification [R.C. 2941.143] based on the prior convictions contained under count one. For the reasons adduced below, we affirm. A review of the record reveals that Iverson's second jury 1 trial was commenced on Monday, December 17, 1990. At this trial, the prosecution offered the testimony of two City of Cleveland policemen during its case-in-chief. The defense offered no witnesses on its own behalf. The first witness for the prosecution was Officer Franklin Jones ("Jones"), who testified as follows: (1) on April 23, 1990, at approximately 7:00 p.m., in the vicinity of East 75th Street and Union Avenue, he and his partner were on normal patrol with the witness as a passenger and the partner driving; (2) they noticed that an automobile accident had occurred shortly before their arrival on the scene; (3) they drove up to the accident area and a citizen informed them that the other car in the accident, a black Chevrolet Chevette, had fled the scene; (4) 1 The first jury trial resulted in a mistrial. - 3 - this citizen gave the police a description of the hit-skip vehicle, the license plate number, and the direction of flight taken by the Chevette; (5) the officers activated their siren and overhead emergency lights and gave chase; (6) the initial chase lasted several minutes, having travelled over several roads and turns, with speeds estimated by the witness of up to fifty miles per hour; (7) the initial chase ended when the Chevette left the roadway and came to a stop as it struck a chain link fence; (8) the driver's side of the Chevette was against the fence, trapping the driver; (9) the witness exited the squad car, approached the Chevette with his service weapon drawn, and ordered the defendant to get out; (10) the defendant was slumped over the steering wheel of the Chevette and appeared to be in a dazed condition; (11) the witness reached into the car through the passenger door to attend to the defendant; (12) in reaching in, the witness's entire upper torso was inside the car and his waist was resting on the open passenger door window; (13) after several seconds, the defendant suddenly sat fully upright, looked at the witness, put the car in gear, and accelerated; (14) the quick acceleration caused the witness to be thrown against the passenger door jam; (15) the witness, fearing for his safety and that of the public, holstered his weapon, extricated himself from the car, fell to the ground and tumbled a distance of ten feet; (16) the witness estimated that the Chevette travelled a distance of forty to fifty feet, and that the car was travelling between twenty-five - 4 - and thirty miles per hour, before he fell to the ground; (17) the witness stated that the episode caused him cuts, scratches and bruises but did not require medical attention; (18) his partner gave chase to the fleeing suspect; (19) the suspect was apprehended several minutes later one-half mile away when his car struck a pole and stalled; (20) the witness was brought to the arrest scene by fellow supporting officers; (21) when questioning the defendant, the defendant told the witness that his propeller had stuck and that his name was Booker Ivery; (22) during the initial chase, the defendant had come within 3-5 feet of striking a man changing a tire along the roadside; (23) the Chevette had a manual transmission mounted on the floor of the vehicle; (24) he did not detect the smell of alcohol on defendant. The second witness for the State was Officer David O'Reilley ("O'Reilley"), the partner of Officer Jones. O'Reilley corroborated the testimony of the previous witness, with the following additions: (1) two or three children were playing inside the fenced area where the Chevette initially came to a stop; (2) he drew his service weapon and covered his partner from the driver's door of the squad car as his partner approached the Chevette at the fenced area; (3) the initial chase of the defendant approached speeds of approximately seventy miles per hour on side streets; (4) during the initial chase, the defendant went through several stop signs without stopping. - 5 - The prosecution then rested and the defendant's motion for acquittal was denied. The defendant then rested. Following closing arguments and the charge to the jury, the finder of fact returned guilty verdicts on all counts. The court then made a finding on the violence specifications. Defendant was then immediately sentenced to: Count One--3-5 years; Count Two--12- 15 years; sentences to be served consecutively. Iverson raises two assignments of error for review. I THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A MAXIMUM SENTENCE WITHOUT CONSIDERING THE FACTORS SET FORTH IN R.C. 2929.12. At the sentencing immediately after the verdict, no presentence investigation report was before the court, nor was one requested by the defense, nor was an objection raised based on the lack of such report. The sentence imposed is within the statutory limits, albeit the maximum penalty allowed by law. The record is silent as to whether the court considered the 2 mitigating factors contained in R.C. 2929.12(C). 2 R.C. 2929.12(C) provides: (C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: (1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; - 6 - The Supreme Court, in State v. Adams (1988), 37 Ohio St. 3d 295, paragraph three of the syllabus, held that a "silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." Accord, State v. O'Dell (1989), 45 Ohio St. 3d 140, 147. In Adams, as here, the court noted that the defense neither requested a presentence investigation report nor objected to the court's failure to include one prior to 3 imposing sentence. Where the record is silent, the defendant maintains the burden to present evidence to rebut the presumption that the trial court considered the mitigating factors. State v. Cyrus, supra, at 166. We are also guided in our review that the term "abuse of discretion" implies "more than an error of law or of judgment; it (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment. 3 The trial court is under no obligation to order a presentence report pursuant to Crim. R. 32.2(A) in a felony case where probation is not granted. State v. Cyrus (1992), 63 Ohio St. 3d 164, syllabus. - 7 - implies that the court's attitude is unreasonable, arbitrary, or unconscionable." State v. Marut (1990), 70 Ohio App. 3d 3, 5. Appellant relies on the following colloquy by the court at sentencing: THE COURT: . . . Once again, do you have anything to say as to why that sentence ought not now be imposed and judgment pronounced? MR. HUBBARD: No, your Honor. THE COURT: Mr. Iverson? THE DEFENDANT: No, sir. THE COURT: Do you have anything further to tell the Court? THE DEFENDANT: No, sir, your Honor. THE COURT: Well, I'm not going to penalize you because this case had been tried twice. That wasn't your fault, that was my fault, But you got it coming to you anyway, because of the nature of the offense involved herein, your fleeing, when that officer told you to stop, shifting into gears. First of all, you had to take your left foot and push it down on the clutch, then you had to take your right arm and shift it into first gear, then you had to take your left foot and lift it off of the clutch, then you had to take your right foot and stomp it down on the gas pedal, then you had to accelerate the car up to five or ten miles an hour, and then put your left foot on the clutch, then you had to take your right arm and shift it into second gear, and then you had to accelerate up to 15, 20 miles an hour, then you had to take your left foot and shove it down on the clutch, shift into third gear, accelerate up to 40 or 45 miles an hour, then you had to take your left foot and shove it down on the clutch again -- was that a three speed or a four speed transmission? - 8 - THE DEFENDANT: It was an automatic. THE COURT: It was a standard shift, son. Was that a three speed, four speed or five speed car there, Officer Jones? OFFICER JONES: Your Honor, I believe it was a four speed. THE COURT: Four speed? OFFICER JONES: Yes. THE COURT: So you had to do even more work to shift. You thought it all out and then come in here with a pack of lies. "I'm sorry, but my propeller was stuck," and "I'm on this train of thought and I can't get out of that mode." Under count one, you're sentenced to a three to five year sentence for failure to observe the police officer. You know, when you took off with that fence flying around like that, that fence could have thrown back and ripped that Patrolman Jones to shreds, tore his body apart. Under count two, you're sentenced to twelve to fifteen years. Those sentences are consecutive to each other, four (sic) a cumulative total of fifteen to twenty years. You're remanded to the sheriff. Given the actions of the defendant, his prior criminal record, his lack of remorse and lack of recognition of the gravity of his actions, the finding by the jury that Iverson's operation of the vehicle caused serious physical harm to persons or property, and/or the operation of the vehicle did cause a - 9 - substantial risk of serious physical harm to persons or property, we cannot say that the court abused its discretion in its sentencing of the defendant. Assignment overruled. II THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION FOR FELONIOUS ASSAULT. In this assignment, we are guided in our review by the following: When reviewing for sufficiency of the evidence to sustain a conviction, we must consider the evidence in a light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 577; State v. Davis (1988), 38 Ohio St. 3d 361, 365, 528 N.E.2d 925, 930. The evaluation of the evidence and the credibility of the witnesses is in the province of the jury and we may not reverse a conviction where the record shows a verdict is based on sufficient evidence. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 277 N.E.2d 212, syllabus. State v. Watson (1991), 61 Ohio St. 3d 1, 12. In the present case, there was evidence presented which, if believed by the jury, would be sufficient to convict Iverson of felonious assault and having used the Chevette as a deadly weapon. Assignment overruled. Judgment 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. DAVID T. MATIA, C.J., and SARA J. HARPER, J., CONCUR. JAMES D. SWEENEY 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. .