COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65411 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION STEVEN SEKALA : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 5, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 290363 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. GREGORY T. STRALKA, ESQ. Cuyahoga County Prosecutor 400 The Standard Building JOHN MANLEY, ESQ. 1370 Ontario Street Assistant County Prosecutor Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was indicted on two counts, one of aggravated robbery with a firearm specification and the other offense of possession of criminal tools, a 1978 Oldsmobile Cutlass. The court amended the firearm specification to a deadly weapon or dangerous ordnance, to wit: a pellet gun. The jury found appellant guilty on both counts. The trial court sentenced him to six to twenty-five years incarceration on the aggravated robbery conviction and one year on the conviction for possession of criminal tools, the sentences to run concurrently. The testimony at trial was presented by three primary witnesses: Tina Chura, a sixteen-year-old convenient store clerk; Daniel Wassmer, the owner of the convenient store; and, Detective Gary Guido, working undercover on the night of November 21, 1992. Chura testified that just after midnight on the morning of November 21, 1992, a man entered the convenient store, brought a Pepsi to the counter and handed Chura a dollar. As she reached into the register drawer to hand the man his change, he pulled a gun from his jacket and pointed at her stomach. Chura backed up and allowed the man to take the approximately seventy dollars from the open cash drawer. Wassmer testified that he looked at the television monitor aimed at the cash register just in time to see the man pointing a gun at Chura. He left his office to walk several steps down to the floor of the store. Wassmer followed the man, at a short distance, as he exited the store and walked to his left. The - 3 - man got into a car which was backed into a parking space several spaces away from the door and not visible from the cash register. No other cars were in the lot. As soon as the man entered the passenger side, the driver of the running car spun the back tires and headed west on Lorain Avenue. Wassmer described the car as a gray-primered Oldsmobile with a light blue colored trunk lid. Detective Guido had just dropped his partner off at the First District Station. He and his partner had been working undercover that evening and were in plain clothes, driving an unmarked car. Guido had heard a report over the radio of a convenient store robbery in the neighborhood and chose to remain in the car to monitor the radio. Just shortly after a full description of the car was broadcast, Guido saw a car matching that description pulling into the intersection directly across from the police station. He followed the car onto the highway, northbound on I- 71. Guido pulled alongside the car to get a better look at the occupants. The driver looked directly at Guido as he pulled alongside the car, going a bit slower than the speed limit of 55 miles per hour. Guido identified appellant as the driver of the car. Guido also testified that the passenger was "kind of facing the driver like doing something in his lap, like I presumed it was counting money." (TR. 79). After Guido returned to a position behind the Oldsmobile four to six car-lengths, the driver of the car apparently attempted to elude the detective several times by pretending to exit then suddenly changing lanes. At the West 14th - 4 - Street exit the car was travelling in the right lane which would have taken the car in one direction on West 14th. At the last minute the Oldsmobile jumped onto the concrete divider and drove over to the left lane, going the opposite direction on West 14th. Guido managed to follow the car through these evasive maneuvers but lost it several minutes later. The car gained speed as it drove down the hill of a side street. Guido had backup by this time and the officers soon located the car, registered to appellant, near an apartment building. The police determined that the car's occupants had entered a nearby apartment. They found appellant and the passenger of the car sitting at the kitchen table, looking pale and nervous, according to Guido's testimony. The police also found the pellet gun used in the robbery under the driver's seat of the car. It was operational but not loaded. Appellant took the stand in his own defense. He claimed that he had picked up Raymond Bass about an hour before stopping at the convenient store. They drove around drinking beer and stopped because Bass wanted a Pepsi. According to appellant's testimony, he always parked backwards when he pulled into parking spaces. He claims that he left the lot in a normal fashion, having a series of reckless driving citations on his record and wanting to maintain a low profile. In fact, appellant was driving with his license under suspension. Appellant claimed that he had no idea that Bass was committing a robbery. He never saw a gun that evening and claims - 5 - that he did not see it placed under his seat. Appellant did not see any money in Bass's hands that night, either. Appellant filed a timely notice of appeal and asserts five assignments of error. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON A LESSER CHARGE OF FAILING TO REPORT A FELONY. Appellant argues that the result of the trial would clearly have been otherwise if the court had given the jury an instruction on the lesser included offense of failure to report a felony. Appellant further argues that he was prejudiced by the court's failure to instruct on the legal culpability of an accessory after the fact. Appellant's argument is not well taken. Appellant's trial counsel failed to object to the trial court's instructions as stated without the inclusion of the lesser offense of failure to report a felony. Although Crim.R. 52(B) allows an appellate court to recognize an error not brought to the attention of the trial court, notice of plain error should only be taken where it appears "on the face of the record not only that the error was committed, but that except for the error, the result of the trial would have been otherwise and that not to consider the error would result in a clear miscarriage of justice." State v. Bock (1984), 16 Ohio App.3d 146, paragraph two of the syllabus. An instruction on a lesser included offense is warranted if "the jury could reasonably conclude that the evidence supports a - 6 - conviction for the lesser offense and not the greater." State v. Kidder (1987), 32 Ohio St.3d 279, 280. See also, State v. Thomas (1988), 40 Ohio St.3d 213. We find that the instruction as to the offense of failure to report a felony was not warranted. The jury could not reasonably have found that the evidence supported that offense and not the aggravated robbery. No miscarriage of justice resulted from the court's failure to instruct on the lesser offense of failure to report a felony. Furthermore, the court was under no obligation to instruct the jury that one who is an accessory after the fact is not in violation of an offense under Ohio law. The jury requested a clarification during the deliberations on the issue of when a person becomes an accomplice. The court properly repeated its instructions covering the elements of the charged offense, finding that it could not directly answer the question without usurping the jury's function. The court denied defense counsel's request to instruct on the law of the status of an accessory after the fact. We agree with the trial court's reasoning that the instructions on aiding and abetting adequately responded to the jury's question without invading the province of the jury to determine issues of fact. Appellant's first assignment of error is overruled. - 7 - II THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO REQUEST AN INSTRUCTION FOR ACCESSORY AFTER THE FACT OR FOR A LESSER DEGREE OF FELONY. Appellant relies upon the trial counsel's admission to the court that he "forgot" to request an instruction on the offense of failure to report a felony as evidence of his trial counsel's ineffective assistance. Appellant's assertion is without merit. When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. On the issue of counsel's effectiveness, the appellant has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. State v. Lytle (1976), 48 Ohio St.2d 391, 396-97. [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. State v. Bradley (1989), 42 Ohio St.3d 136, 143. Trial counsel did not violate an essential duty to appellant by his failure to request an instruction on the lesser offense of failure to report a felony. The evidence presented at trial clearly supported the charged offense of aggravated burglary, to a much greater degree than the evidence supported failure to report a felony. In his representation of appellant, trial counsel put forth the theory that appellant lacked the requisite knowledge that - 8 - Raymond Bass had committed the robbery. Requesting an instruction on failure to report a felony would not have been consistent with defense counsel's trial strategy. Finally, we must find that appellant's assertion that his trial counsel failed to request an instruction for the law of an accessory after the fact is without merit. Appellant's trial counsel did request that such an instruction be included in the court's response to the jury's question as to when a person becomes an accomplice. As discussed in the previous assignment of error, the court properly denied defense counsel's request. Appellant's second assignment of error is overruled. III THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL WAS NOT GIVEN A SUFFICIENT PERIOD OF TIME TO PREPARE A DEFENSE. Appellant asserts that his counsel chose to try a case with insufficient time to prepare rather than ask appellant to waive his speedy trial rights. This constitutes ineffective assistance of counsel, according to appellant's argument. We are not persuaded that counsel had insufficient time to prepare an adequate defense. After a careful review of the record, we find that counsel appeared to be more than adequately prepared in presenting a defense. The case is straightforward in that there exist few witnesses and most facts are not controverted. The primary issue for which to prepare was whether appellant in fact knew that Bass was robbing the convenient store. This issue does not require any - 9 - in-depth legal research or analysis. Although counsel does mention the shorter period of time during which he prepared the case, the comment is only made with regard to the lack of opportunity to negotiate a plea on appellant's behalf. Counsel does not claim that he did not have enough time to prepare the defense. We can not find that appellant's defense was prejudiced by any ineffectiveness on the part of trial counsel. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S RULE 29 MOTION SINCE THE STATE FAILED TO PROVE THAT THE DEFENDANT AIDED AND ABETTED THE PRINCIPAL OFFENDER IN THE ALLEGED OFFENSES. Appellant argues under this assignment of error that the State failed to prove by sufficient evidence that he acted with the requisite culpability in the commission of the offenses. Appellant further argues that the State failed to present sufficient evidence to prove that appellant incited or assisted in the commission of the offenses. Appellant's arguments are not well taken. The standard of review used by this Court in determining whether evidence was sufficient to support the conviction was stated by the Ohio Supreme Court as follows: 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. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have - 10 - found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. We find that evidence existed upon which a rational trier of fact could rely to support the element of appellant's culpability. Wassmer testified that he witnessed the departure of appellant and Bass from the convenient store parking lot. The specific nature of this departure could be construed to support the State's contention that appellant aided and abetted Bass in committing the robbery. The car was parked in a parking space which was not visible to store employees from the cash register, even though the lot was empty of other cars. According to Wassmer, the car was parked in the space backwards, rendering it easier to leave the premises without having to change gears. Further, Wassmer testified that the car was running and that the driver took off, spinning the car's wheels, as soon as the passenger's side door was closed. Detective Guido's testimony also supports the aggravated robbery and possession of criminal tools convictions on the theory of aiding and abetting. According to Guido, the driver of the car twice attempted to, and one time succeeded in, eluding him. Guido also testified that appellant's demeanor at the time the police found him was nervous and that appellant gave a false name and social security number to the police when questioned. - 11 - This evidence, when viewed in a light most favorable to the prosecution is sufficient to support appellant's convictions. Appellant's fourth assignment of error is overruled. V THE JURY'S DECISION FINDING THE DEFENDANT GUILTY OF THE OFFENSES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE SINCE THE STATE FAILED TO PROVE THAT THE DEFENDANT AIDED OR ABETTED THE PRINCIPAL OFFENDER IN THE ALLEGED OFFENSES. Appellant asserts that his conviction is against the manifest weight of the evidence because the State neglected to put forth any evidence of aiding and abetting. Appellant's argument is not persuasive given our review of the evidence in the record. The standard of review used to determine the issue of manifest weight of the evidence is stated as follows: The court, reviewing 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, paragraph three of the syllabus. Given the state of the evidence as reviewed in appellant's fourth assignment of error, we can not find that the jury clearly lost its way and created a manifest miscarriage of justice. In the face of evidence that appellant was driving the car in a way which would lead a rational trier of fact to believe that he was aiding - 12 - Bass in the commission of the robbery in helping him to escape the scene of the crime and elude the police, we can not find that the jury verdicts are against the manifest weight of the evidence. Appellant's fifth assignment of error if overruled. Appellant's convictions for aggravated robbery and possession of criminal tools and the related sentences are 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 Court of Common Pleas 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. PATTON, C.J., AND KARPINSKI, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .