COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61295 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION WILLIE FROST : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 25, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-251510(B) JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. THOMAS S. HUDSON, ESQ. Cuyahoga County Prosecutor Hudson and Hudson DAVID SHELDON, ESQ. 1700 Terminal Tower Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Appellant, Willie Frost, appeals from his conviction pursuant to a four-count indictment, to wit: breaking and entering, in violation of R.C. 2911.13; theft, in violation of R.C. 2913.02; grand theft of a motor vehicle, in violation of R.C. 2913.02; and receiving stolen property, in violation of R.C. 2913.51. Counts one and four were merged with counts two and three and appellant was sentenced to one and one-half years in jail. For the reasons that follow, we affirm. II. John Cupedro testified that he owned a tire business called Economy Tire Service in Cleveland, Ohio. He arrived at his place of business on the morning of July 1, 1987 and discovered that his business had been burglarized. After being told by an employee that the intruders had entered through the back door, John observed that the back door had been broken. He discovered that all the new truck tires belonging to the business, including two service trucks, were missing, along with tools and an air compressor. The loss was estimated at $17,000. John's insurance company paid him a total of $25,977.20 for the loss. One of the missing trucks was found damaged about five weeks later. John testified that he did not know Willie Frost and could not recall the brand name of the missing compressor. He knew Willie Shanklin, who also was implicated in the theft. He did not give any one permission to remove anything from his business premises. - 3 - Patrolman Joseph Petkac of the Cleveland Police Department testified that he responded to a burglary call at 4325 Pershing Avenue in Cleveland on July 1, 1987. He obtained the description of the missing vehicles and their identification numbers. When the police initially arrived at the scene, they did not develop any suspects. He did not know if the Scientific Investigation Unit dusted the scene for fingerprints or took photographs. He did not know Willie nor his connection to the missing items. The officer testified that both vehicles were later recovered. George Ward, who at the time of his testimony was serving a prison term for theft and burglary, testified that he met Frost through George Patterson and Willie Shanklin. He testified that Frost was one of his competitors in the tire business. On June 30, 1987, Ward, Shanklin, Peterson and Frost went out on a "job hunt," a term used for a search of a place to break in and steal tires. Shanklin had arranged the "job" and invited Ward to go along with him. At approximately 9:30 p.m., the group scouted the Economy Tire premises to make sure no one was around and left. They came back to the premises after parking their vehicle on the street. They went in through the back of the building, after they broke the back door with a crowbar. They took approximately 80-100 tires, hydraulic jacks, and air wrenches. They also took two trucks with air compressors on them. Ward drove one truck while Frost drove the other. Ward drove the truck to 123rd and Superior where the tires were taken - 4 - to another man's house, on Lamontier Avenue, who had agreed to get rid of the tires. Frost drove the other truck to his home. Ward described the compressor on the truck that Frost drove and further testified that he saw the compressor at Frost's garage. He did not see Frost remove the compressor from the truck, and did not know if Frost took part in getting rid of the tires. Ward talked to the police about the Economy Tire break-in when he was arrested in Brunswick for robbery, burglary and theft. He later cooperated with the police in the investigation. As a result of his willingness to cooperate, Ward was not prosecuted for other crimes he committed. Officer William Rieger of the Cleveland Police Department Auto Theft Unit testified that as an undercover agent he purchases stolen cars. Officer Rieger and his partner while undercover would purchase stolen cars which are returned to insurance companies who would repair them and deliver them to the owners. He came in contact with Ward through another detective as he was attempting to set up a purchase. He later became involved in an undercover buy with Frost. He sat in a truck with another detective waiting to purchase an air compressor. One officer was watching the transaction with a video camera while another was writing down what transpired. Officer Rieger was wired with a body microphone. The officer testified that after the purchase, Frost and Patterson assisted him in sliding the air compressor into the truck. The officers paid about $1,000 for the air compressor. Officer Rieger informed Frost that the air - 5 - compressor was just what they were looking for, and that he could buy a couple more. Frost told him that he could arrange to get him some in a couple of weeks. The compressor was taken to G and M towing by the officers for storage. Officer Rieger became involved in the investigation several months after the Economy Tire Service break-in. He had no knowledge of any investigation linking Frost to the break-in prior to the compressor purchase. He did not ask Frost where the compressor came from and did not find out until later that the compressor came from Economy Tire Service. Willie Frost testified that he did not know of any break-in at Economy Tire Service. He did not remember what he was doing on the evening of the break-in which occurred three years before the trial. He identified the photograph of the compressor the state introduced into evidence as the compressor he had possessed. He was in the process of purchasing it from Shanklin. Shanklin did not give a bill of sale for the compressor even though Shanklin deducted money from his pay as payment for the compressor. He worked for J and C Truck Service after his tire business was destroyed. He knew Ward as a competitor and not as a friend. He was buying the compressor from Shanklin because he wanted to start his business again. He requested a bill of sale which Shanklin never gave him. He paid a total of $450 to Shanklin for the compressor. Shanklin arranged for Patterson to take Frost somewhere to sell the compressor, in order to refund - 6 - him the money he already paid for the compressor, testified Frost. Frost and Patterson went to deliver the compressor to two men in a red pick-up truck. The men paid $1,000 for the compressor. The men were never told where the compressor came from and Frost did not know that it came from Economy Tire Service. Shanklin told him that the compressor was his. Frost picked up the compressor from Shanklin's garage and was in possession of it for about six months. Shanklin testified that Frost participated in the break-in. Frost drove away one of the stolen trucks, which was red in color. The compressor in the truck Frost drove away was taken to Frost's mother's house and later sold. Shanklin was involved in setting up the sale of the compressor. The stolen tires were dropped at his home and a friend's home before being sold. The tools were divided among Frost, Patterson and two others. He saw the compressor at Frost's garage and became the middleman between Frost and the police in the sale of the compressor after the police approached him for cooperation. Shanklin was not prosecuted for the Economy Tire Service break-in because of his cooperation with the police. II. Appellant assigns error as follows: "ASSIGNMENT OF ERROR I "THE DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL AND TO DUE PROCESS OF LAW UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION - 7 - DUE TO THE STATE'S UNREASONABLE DELAY IN BRINGING THIS CASE TO TRIAL. "ASSIGNMENT OF ERROR II "THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS OF THE DEFENDANT, AND THEREFORE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29. "ASSIGNMENT OF ERROR III "THE CONVICTIONS OF APPELLANT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Appellant argues in his first assignment of error that his right to due process was violated due to the lengthy delay before his prosecution. Appellant argues that three years delay in bringing him to trial violated his right to a speedy trial. We disagree. We shall address appellant's argument from two legal theories. Firstly, appellant's argument on the violation of his right to speedy trial fails for the following reasons. The right to speedy trial in Ohio is both statutory and constitutional. R.C. 2945.71 et seq. provides in pertinent part as follows: "(C) A person against whom a charge of felony is pending: "(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge; "(2) Shall be brought to trial within two hundred seventy days after his arrest." - 8 - R.C. 2945.71 has been interpreted by case law to apply to a defendant who has either been arrested or indicted and is not applicable during the period of time when no charge is pending. State v. Brock (May 22, 1991), Montgomery App. No. 12227, unreported. See also State v. Montgomery (Aug. 30, 1990), Franklin App. No. 89 AP-1355, unreported. Since the speedy trial guarantee is "designed primarily to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." United States v. MacDonald (1982), 456 U.S. 1, 71 L.Ed.2d 696, and the record shows that appellant was not brought to trial beyond the two hundred and seventy days permitted by law, after his arrest or indictment, the state did not violate his right to a speedy trial. See also United States v. Marion (1971), 404 U.S. 307, 320, 30 L.Ed.2d 468, 479. Our second inquiry whether appellant's right was violated pursuant to any other provisions of the law is answered in the negative. It is a settled law that any undue delay in bringing an accused to trial must be scrutinized under the due process clause, a finding of a violation of which compels that the accused conviction be overturned. See MacDonald, supra. However, since an overturn of a criminal conviction due to an undue delay is a drastic measure, the defendant seeking to have his conviction overturned for undue delay must prove actual prejudice. A mere showing of stress and anxiety which is - 9 - somewhat prejudicial is insufficient to overturn a conviction for undue delay on due process grounds. Any showing of the following while not exclusive will constitute actual prejudice: (1) a showing that the state intentionally delayed a prosecution in order to gain a tactical advantage over the defendant; (2) the delay was as a result of negligence; or (3) the delay was as a result of error in judgment either of which caused the state to cease its investigation of the case, only to reactivate the case later upon the same evidence available to it at the time it ceased the original investigation. In a delay based on negligence or judgmental error, the length of time is the controlling factor in determinating a possible violation of due process rights. See State v. Luck (1984), 15 Ohio St.3d 150, 158. While the essence of bringing a defendant to trial without delay goes to our fundamental conceptions of justice and reinforces "the community's sense of fair play and decency," United States v. Lovasco (1977), 431 U.S. 783, 789, we are cognizant that courts "will not assume the role of the prosecutor to determine when there is sufficient evidence to seek an indictment in every case." Luck at 158. Upon a careful review of the record before us, we hold that appellant was not prejudiced by the delay in bringing him to trial three years after the incident. There is evidence that one of the state's key witnesses was actively involved in another investigation, which would endanger the lives of innocent people if his identity - 10 - was to be prematurely revealed. We do not consider such application of restraint unreasonable and certainly not prejudicial to appellant's cause. Appellant's first assignment of error is overruled. III. Appellant argues in his second assignment of error that there was insufficient evidence to convict him of the charges against him. We disagree. R.C. 2911.13 defines breaking and entering as the use of "force, stealth or deception" to "trespass in an occupied structure, with purpose to commit therein any theft offense as defined in Section 2913.01 of the Revised Code, or any felony." Theft is defined in R.C. 2913.02 as "to knowingly obtain or exert control over either the property or services *** without the consent of the owner or person authorized to give consent." Finally, R.C. 2913.51 provides as follows: "(A) No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe it has been obtained through commission of a theft offense." Ward, Shanklin and Patterson, all of whom participated in the breaking and entering, testified at length about appellant's involvement in the theft. Officer Rieger testified that he purchased the compressor from the defendant. There was a video tape of the entire transaction which further confirmed appellant's involvement in the sale of the compressor. Appellant himself testified that he had possession of the compressor which he admitted was not his. John, the owner of Economy Tire - 11 - Service, testified that he did not give anyone consent to remove tires, trucks and air compressors from his business. Where the state offers evidence in support of all elements of the offense charged, a reviewing court cannot reverse on insufficiency of the evidence. State v. Barnes (1986), 25 Ohio St.3d 203. See also State v. Eley (1978), 56 Ohio St.2d 169, syllabus; State v. Black (1978), 54 Ohio St.2d 304, 318. In the instant case, we find the evidence presented by the state sufficient to convict appellant as charged, and so, we overrule appellant's second assignment of error. IV. Appellant, in his third assignment of error, contends that the verdict is against the manifest weight of the evidence. Generally, the weight given the evidence and the credibility of witnesses are issues to be resolved by the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81. Accordingly, a judgment supported by some competent, credible evidence shall not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus. See also State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In the instant case, the jury saw the witnesses and heard their testimony. The jury had an opportunity to form an opinion and arrive at a conclusion as to the truth of the matter which was far superior to the opportunity we have. Since we have found no - 12 - evidence to disturb the finding of the jury, we overrule appellant's third assignment of error. Judgment affirmed. - 13 - 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 ANN McMANAMON, J., CONCUR. SARA J. HARPER 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. .