COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 65588 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LEO DARRINGTON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-294810 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. MARK T. RUDY, ESQ. Cuyahoga County Prosecutor 11510 Buckeye Road LOUIS J. BRODNIK, ESQ. Cleveland, Ohio 44104 Assistant Prosecuting Attorney The Justice Center LEO DARRINGTON, pro se 1200 Ontario Street #A-265-569 Cleveland, Ohio 44113 Mansfield Correctional Inst. P.O. Box 1368 Mansfield, Ohio 44901 - 2 - KARPINSKI, J.: Defendant-appellant, Leo Darrington (hereinafter referred to as "defendant"), appeals from a jury verdict finding defendant guilty of three counts: one count of felonious assault in violation of R.C. 2903.11; one count of aggravated robbery in violation of R.C. 2911.01; and one count of possession of a criminal tool. Violence specifications were added to both counts one and two. On appeal, defendant raises two assignments of error in his first brief, four assignments of error in his first pro se supplemental brief, and four assignments of error in his second pro se supplemental brief. We affirm defendant's conviction based on the following testimony adduced at trial. Clifford Garrison, the nine-year-old son of Ms. Moffitt, stated that on August 26, 1992, he awakened early because he was excited about the first day of school. When he saw someone in his mother's car, he woke up his mother, who grabbed her keys and ran out the door. Staying on the porch, he watched his mother pull the man outside the car and saw him stab his mother with a red-handled screwdriver as she hit the man. Although the child did not have a good look at the man's face, the child described him as a black man of the same size and shape as the defendant and identified him as the boyfriend of his aunt. Gary Samuels, a neighbor of Ms. Moffitt, testified he heard Ms. Moffitt's car, which had a unique sound because of the lack of a muffler. He looked out on the street and noticed the car - 3 - going back and forth, not able to straighten out. He saw Ms. Moffitt run out to her car and approach cautiously. Once Ms. Moffitt was close enough to see who was in the car, her demeanor changed and she yelled for Samuels to call the police. She opened the car door as if she knew the person inside. After calling the police, Samuels returned and found Ms. Moffitt holding her wound. She told him that the man who stabbed her was Leo Darrington, her sister's boyfriend. Ms. Moffitt testified that her son woke her that morning. When she saw her car moving, she ran out after it. Arriving at the car, she recognized the defendant in the driver's seat trying to steal the car by peeling the steering column with a screwdriver. She knew the defendant because he was her sister's boyfriend. She pulled him out of the car and they struggled outside the car. The defendant said, "I'm going to kill you, motherfucker," and lunged at her pointing the screwdriver at her chest. As the screwdriver cut her beneath the left breast, she hit the defendant with an uppercut. The defendant then ran away. The officer who arrived at the scene, Officer Janusczak, also testified. He found Ms. Moffitt almost incoherent. She told him that after attempting to steal her car the defendant had stabbed her. When she gave defendant's address, Officer Janusczak remembered hearing it from a police call the day before. On that date, Officer Janusczak had stopped the defendant for a traffic violation but did not give him a ticket. - 4 - Later, Officer Janusczak responded to a call that three males were attempting to break into the residence at 977 Linn Avenue, defendant's address. Upon arriving at the house, the police found what appeared to be a break-in by three persons: the windows were smashed and the car in the garage was damaged but still running, with the steering column peeled and still locked. Mrs. Garrison, the mother of Ms. Moffitt, also took the stand. She too noticed her daughter's car going back and forth in the street. She saw her daughter pull the driver out of the car and struggle with him. Although Mrs. Garrison was familiar with the defendant because he dated her daughter Joyce Sisson, Mrs. Garrison could not identify him as the thief. Mrs. Garrison did, however, testify that the man who struggled with Ms. Moffitt was tall and skinny as was the defendant. Dr. Leonard Samuels, another witness, was working at Mt. Sinai Hospital when Ms. Moffitt came into the hospital on August 26 to be treated for a four-centimeter wound just beneath the left breast, requiring six stitches. In his opinion, if it had been penetrating, the wound would have been life threatening. Joyce Sisson, Ms. Moffitt's sister, testified on behalf of the defense. She stated he was her boyfriend and her family did not like him. On direct examination, defendant admitted his past criminal convictions for drug possession and petty theft. He claimed that after his house was broken into he stayed at Carolyn Cooper's - 5 - house for a couple of days, including the date of the incident, August 26, 1992. He denied attempting to steal Ms. Moffitt's car and stabbing her. After deliberating, the jury returned a unanimous verdict of guilty on all counts. After denying a motion for a new trial, the trial court sentenced defendant from 8 to 15 years on the first count and from 7 to 25 years on the second count, the two counts to run consecutively. On the third count defendant was sentenced to 18 months, to run concurrently with the first two sentences. Defendant timely appealed to this court raising ten assign- ments of error: two in the first brief, four in the first pro se supplemental brief, and four additional assignments of error in the second pro se supplemental brief. Defendant's first assignment of error states as follows: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSES OF FELONIOUS ASSAULT AND AGGRAVATED ROBBERY. In this assignment of error, the defendant challenges whether sufficient evidence was presented to convict the defendant of felonious assault and aggravated robbery. In reviewing a Crim.R. 29(A) motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. - 6 - Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds cannot convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not go to the jury. Id. In the case at hand, viewing the evidence in a light most favorable to the prosecution, this court finds there was sufficient evidence to present the case to the jury. Defendant 1/ 2/ was charged with aggravated robbery and felonious assault . On the charge of aggravated robbery, the state presented competent credible evidence that the defendant inflicted serious physical harm on another while attempting to commit a theft offense. Witnesses saw the attempt to steal Monetta Moffitt's car and Ms. Moffitt being stabbed. The victim clearly identified the defendant. Three other witnesses, while unable to identify 1/ 2911.01 Aggravated robbery. (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordinance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. (B) Whoever violates this section is guilty of aggravated robbery, an aggravated felony of the first degree. 2/ 2903.11 Felonious assault. (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. - 7 - the defendant positively as the thief, corroborated this testimony. This testimony was sufficient to charge the jury on aggravated robbery. Under the instructions the judge gave to the jury on the charge of felonious assault, there was sufficient evidence to establish the defendant knowingly both (1) caused "physical harm which carries a substantial risk of death" and (2) attempted mere 3/ physical harm with an instrument capable of inflicting death. To stab anyone in the chest with a tool like a screwdriver is to act with the knowledge that "substantial risk of death" is likely to occur. As the doctor testified, if the screwdriver had been inserted at a different angle, the wound could have been life- threatening. The screwdriver, therefore, is properly considered "an instrument capable of inflicting death." There being sufficient evidence to convict the defendant of the aggravated robbery and felonious assault either under "serious physical harm" or mere physical harm with a deadly weapon, this assignment of error is overruled. Defendant's second assignment of error states as follows: THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. Defendant contends his jury conviction is against the manifest weight of the evidence because the eyewitness testimony was uncertain and unreliable. The standard for evaluating claims 3/ 4 OJI 503.11. - 8 - that a conviction is against the manifest weight of the evidence has been summarized as follows: Here the test is much broader. 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 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, 175. Based on the record, defendant has failed to demonstrate his conviction was against the manifest weight of the evidence. Ms. Moffitt's identification of defendant as the person who tried to steal the car and then stabbed her was certain, especially because she had seen him and known him as her sister's boyfriend. That she shouted his name immediately after he stabbed her further adds to the reliability of her identification. The other witnesses identified a man consistent with defendant's description. The defendant presented no alibi witnesses. This is not a case where the jury lost its way and created a manifest miscarriage of justice. Under this assignment of error, the defendant also argues that the prosecution failed to prove motive for the defendant to steal the car. No such proof is required, however, because motive is not an element of this crime. This assignment of error is overruled. Defendant's first assignment of error in the first pro se supplemental brief states as follows: - 9 - I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION WHEN COUNSEL FAILED TO: 1. TIMELY FILE A MOTION INN LEMINE [sic] TO SUPPRESS RAISING HIS PAST CRIMINAL CONDUCT WHEN COUNSEL KNOWS THAT THE STATE'S CASE RESTS SOLELY UPON A TEST OF CREDIBILITY BETWEEN THE VICTIM OF AN OFFENSE AND THE DEFENDANT; THAT THE VICTIM OF THE OFFENSE HAS IN THE PAST DISPLAYED ANIMOSITY AND ABUSIVENESS TO THE DEFENDANT; THAT THE DEFENDANT HAS A PAST CRIMINAL HISTORY OF PETTY OFFENSES, ONE OF WHICH OCCURRED OVER 20 YEARS AGO AND NONE OF WHICH CARRIED A SENTENCE IN EXCESS OF 1 YEAR IMPRISONMENT. 2. CONDUCT ANY INVESTIGATION PRIOR TO TRIAL. 3. OBJECT TO TOTALLY IRRELEVANT QUESTIONS BY THE STATE UPON CROSS EXAMINATION WHICH TENDED TO SHOW THE BAD CHARACTER OF THE DEFENDANT. It is well established that to demonstrate ineffective assistance of trial counsel, defendant must demonstrate the following, viz.: (1) trial counsel's performance was deficient; and (2) prejudice resulted from this deficient performance. State v. Bradley (1989), 42 Ohio St.3d 136. Based on our review of the record under this standard, defendant has failed to demonstrate ineffective assistance by his trial counsel. Defendant has pointed to three reasons why his trial counsel was ineffective. None of these reasons rises to the level of in- effective assistance of counsel. First, he claims that his counsel was ineffective in failing to suppress evidence of past criminal conduct. By introducing the past convictions on direct examination, however, defense counsel tried to lessen the impact of defendant's criminal record. When reviewing the performance - 10 - of trial counsel, we must give deference to counsel's strategic choices. Strickland v. Washington (1984), 466 U.S. 668, at 689. Trial counsel's decisions are presumed to be reasonably made under the then-existing circumstances and it is up to the defendant to demonstrate otherwise. Id. at 694-695. Secondly, defendant argues that trial counsel was ineffective in failing to conduct any pretrial investigation. This assertion has no basis. On the contrary, defendant's trial counsel did conduct an investigation when trial counsel, prosecutor, and defendant travelled to Marysville, Ohio, in order to interview a potential alibi witness. Defendant finally argues that trial counsel was ineffective in failing to object at trial to questions about defendant's character, specifically concerning defendant's prior convictions. This argument lacks merit. On direct examination, defense counsel attempted to minimize the effect of defendant's criminal record by asking defendant about his prior convictions. Once the defense has opened the door on a subject on direct examination, the prosecution is permitted to ask questions on that subject on cross-examination. See, State v. Clark (1988), 38 Ohio St.3d 252. This assignment of error is overruled. Defendant's second assignment of error in his first pro se supplemental brief states as follows: II. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ADDUCE EVIDENCE OF OTHER WRONGS AND ALLEGED CRIMES OF THE DEFENDANT WHEN THE DEFENDANT WAS NOT CHARGED WITH OTHER CRIMES AND WRONGDOINGS. - 11 - Defendant asserts that it was error for the prosecution to ask questions concerning defendant's failure to pay rent timely, having his house ransacked over a gambling debt, and driving a borrowed car. Having not objected to these questions at trial, however, defendant can succeed only if allowing the prosecution to ask these questions constitutes plain error. To establish plain error, it must appear on the record that error was committed and that the outcome of the trial would have been different absent the error. State v. Underwood (1983), 3 Ohio St.3d 12, 14. These questions concern defendant's motive for stealing a car and are admissible as proof of motive pursuant to 4/ Evid.R. 404(B). See, State v. Hill (1987), 37 Ohio App.3d 72; State v. Brantley (Sept. 22, 1994) Cuyahoga App. No. 65933, unreported. Accordingly, this assignment of error is overruled. Defendant's third assignment of error in his first pro se supplemental brief states as follows: III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY A SHOWING OF BIAS AGAINST THE DEFENDANT IN THE PRESENCE OF THE JURY AND THEREBY COMMITTED MISCONDUCT, IN VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS TO A FAIR TRIAL. The defendant claims it was an abuse of discretion for the trial judge to admonish defendant by telling him, "You wait until 4/ Evid. Rule 404(B) provides as follows: (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. - 12 - a proper question is placed to you and you wait until he is done with his answer." A trial judge is presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome the presumption of integrity. State v. Wagner (1992), 80 Ohio App.3d 88 (citing State v. Richard [Dec. 5, 1991], Cuyahoga App. No. 61524, unreported). In the case at bar, the trial judge merely directed the defendant to allow the attorney to finish his question and equally cautioned the attorney to wait for the answer. We do not find any prejudicial bias for the trial judge to ask both sides to be patient. This assignment of error is overruled. Defendant's fourth assignment of error in his first pro se supplemental brief states as follows: IV. THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR WHEN IT GAVE INSTRUCTIONS TO THE JURY NOT PERTINENT TO THE CASE AT HAND AND THEREBY POSSIBLY CONFUSING THE JURY INTO BELIEVING THAT EVIDENCE OF OTHER ACTS, WRONGS AND CRIMES COULD BE USED AS PROOF OF THE OFFENSE CHARGED. In this assignment of error, defendant argues that the trial court committed reversible error by instructing the jury "Prior convictions may be used to prove an element of an offense charged, where appropriate, ***." Defendant, however, failed to object to the instructions given by the trial court. A party may not argue on appeal that a jury instruction was in error unless an objection was made before the jury begins its deliberations. Crim.R. 30, State v. Robinson (Dec. 30, 1993), Cuyahoga App. No. 64390, unreported. Having not objected at trial, defendant can succeed only if error in jury instructions constitutes plain - 13 - error. As stated before, in order to establish plain error in the failure to give a jury instruction, it must appear on the record that error was committed and that the outcome of the trial would have been different absent the error. Underwood, supra. In the instant case, we do not find that the charge given constituted plain error, because the trial judge gave the jury a proper context in which to view defendant's criminal record. The trial judge specifically cautioned the jury that evidence of prior convictions could be used only to test the credibility of the witnesses and that evidence of prior convictions cannot be used by the jury to infer that the defendant has committed any other offense. Because we find no error to this segment of the jury instructions, this assignment is overruled. Defendant's first and second assignment of error in his second pro se supplemental brief states as follows: I. DEFENDANT DARRINGTON'S RIGHT TO SPEEDY TRIAL, UNDER R.C. 2945.71 WAS DENIED WHERE HE WAS INITIALLY INDICTED ON DECEMBER 16, 1992 FOR THREE OFFENSES, ATTEMPTED MURDER, GRAND THEFT, AND POSSESSION OF CRIMINAL TOOLS, THAT AROSE OUT OF A SINGLE SEQUENCE OF EVENTS AND DARRINGTON'S SECOND INDICTMENT ON MARCH 22, 1993, WAS BASED ON OTHER OFFENSES THAT AROSE FROM THE SAME SEQUENCE, BUT THE DEFENDANT WAS NOT AFFORDED A TRIAL, ON THE ADDITIONAL CHARGES, IN THE TIME WITHIN WHICH TRIAL WAS TO BEGIN ON THE ORIGINAL CHARGES. II. DEFENDANT DARRINGTON'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHERE HIS RIGHT TO SPEEDY TRIAL, UNDER R.C. 2945.71, WAS DENIED AND COUNSEL FAILED TO MOTION THE TRIAL COURT TO DISMISS THE CHARGES WHEN HE WAS INDICTED IN A SECOND INDICTMENT, BASED ON OTHER OFFENSES THAT AROSE FROM THE SAME SEQUENCE, BUT WAS NOT AFFORDED A TRIAL ON THE ADDITIONAL CHARGES WITHIN THE TIME WHICH TRIAL WAS TO BEGIN ON THE ORIGINAL CHARGES. - 14 - In these assignments, defendant asserts that he was denied his right to a speedy trial pursuant to R.C. 2945.71. This statute requires that a person against whom a felony charge is pending be brought to trial within 270 days after his or her arrest. To compute time within which an accused must be brought to trial, each day during which the accused is held in jail in lieu of bail on the pending charges shall be counted as three days. R.C. 2945.71(E); State v. Howard (Mar. 4, 1994), Scioto App. No. 93CA2136, unreported; State v. MacDonald (1976), 48 Ohio St.2d 66. To state it another way, "a felony defendant in Ohio must be tried within ninety days if incarcerated on the pending charge or within two hundred seventy days if on bail." State v. Coleman (1989), 45 Ohio St.3d 298. The ninety-day period of R.C. 2945.71 does not apply when a defendant is being held on multiple charges pending separate trials. Coleman, supra. In the case sub judice, the defendant was initially indicted on December 16, 1992. Defendant was re-indicted with the second indictment on March 22, 1993. During this time, defendant was in jail pursuant to guilty plea convictions in cases wholly separate and distinct from the case at hand. He was sentenced on October 29, 1992, in two entirely different case numbers, CR285541 and CR283474, to one year of incarceration for theft. Defendant was incarcerated under these two other case numbers during the pendency of the present action. Because he was was held in jail not solely on the pending charges, defendant cannot take advantage of the triple-count provision of R.C. 2945.71(E). - 15 - Coleman, supra. Under R.C. 2945.71(E), therefore, the statute requires defendant be brought to trial within 270 days. He was indicted on December 16, 1992, and brought to trial on March 30, 1993, well within the 270 days required by R.C. 2945.71(E). Defendant's first assignment of error in his second pro se supplemental brief is overruled. Accordingly, because defendant was not denied his right to speedy trial, defendant's counsel was not ineffective in failing to move the court to have the charges dismissed. Defendant's second assignment of error in his second pro se supplemental brief is overruled. Defendant's third assignment of error in his second pro se supplemental brief states as follows: III. DEFENDANT DARRINGTON'S RIGHT TO FAIR NOTICE OF CHARGES WHERE HE WAS ARRAIGNED ON NEW, DISTINCTLY DIFFERENT, ADDITIONAL CHARGES ON MARCH 25, 1993 AND TAKEN TO TRIAL ON THOSE CHARGES FIVE DAYS LATER, ON MARCH 30, 1993. Defendant contends he was denied his "right to fair notice of charges" when he was arraigned on new charges arising out of the same facts. On December 16, 1992, defendant was charged in case number CR 287414 with the first indictment: attempted murder, theft, and possession of criminal tools. On March 22, 1993, defendant was re-indicted and charged with felonious assault, aggravated robbery, and possession of criminal tools. On March 25, 1993, the first indictment was nolled and defendant was arraigned on the second indictment. - 16 - The purpose of an indictment is to inform the accused of the offense with which he is charged so that he may prepare a defense for trial. State v. Morris (1982), 8 Ohio App.3d 12. In State v. Wilson (Feb. 24, 1994), Cuyahoga App. No. 64444, unreported, this court found no error when the trial court nolled a previous indictment and issued a new indictment. Similarly, in the case sub judice, we find no prejudice to defendant when his first indictment was nolled and the defendant was re-indicted with a second indictment prior to trial. Defendant was charged with possession of criminal tools in both indictments. Because defendant was charged with the same crime, no prejudice arises. The other two charges in each indictment arose out of the theft of a car and the stabbing of the victim. The first indictment charged attempted murder and theft. The second indictment charged felonious assault and aggravated robbery. Defense counsel had adequate notice of the charges and did not request a continuance of the trial. Defendant, therefore, was not prejudiced. Accordingly, defendant's third assignment of error in his second pro se supplemental brief is overruled. Defendant's fourth assignment of error in his second pro se supplemental brief states as follows: IV. THE COURT COMMITTED PREJUDICIAL, REVERSIBLE ERROR IN DENYING DEFENDANT DARRINGTON DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND 16, ARTICLE I, OHIO, OHIO [sic] CONSTITUTION WHEN THE COURT FAILED TO INSTRUCT THE JURY REGARDING EYEWITNESS IDENTIFICATION WHERE SUCH INSTRUCTION WERE APPROPRIATE AND NECESSARY UNDER THE FACTS OF THE CASE, AND THE OMITTED INSTRUCTION IS NOT INCLUDED IN THE GENERAL CHARGE. - 17 - Defendant argues that the judge should have instructed the jury concerning eyewitness identification. This argument lacks merit. The trial judge instructed the jury as to reasonable doubt and the credibility of the witnesses. Once again, defendant did not raise this issue in the form of an objection to the jury instruction and therefore can succeed only by showing plain error. Underwood, supra. In the instant case, a jury instruction regarding eyewitness identification would not have produced a different outcome. The victim knew the defendant before the stabbing. The victim identified the defendant as the man who stabbed her immediately after the incident and at trial. This assignment of error is overruled. Judgment affirmed. - 18 - It is ordered that appellee recover of appellant their 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, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 .