COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66762 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION BARBARA LOESSER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 19, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-292,430 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART : AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor KATHLEEN S. CRAIG, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender JEAN M. GALLAGHER, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant/appellant Barbara Loesser appeals from her convic- tion on three counts of tampering with evidence, in violation of R.C. 2921.12, and four counts of perjury, in violation of 2921.11. For the reasons set forth below, we affirm in part, reverse in part and remand for proceedings consistent with this opinion. On January 25, 1993, the defendant was indicted for three counts of tampering with evidence and four counts of perjury. These charges stemmed from an investigation of the defendant's statements, testimony and evidence which she presented to the court as the alleged victim in two separate criminal matters. State of Ohio v. David Carr, Cuyahoga County Court of Common Pleas Case No. CR-296,08 and State of Ohio v. Scott Haroff, Cuyahoga County Court of Common Pleas Case No. CR-276,351. The investigation was commenced by the trial court, which referred the matter to the county prosecutor's office after the defendant testified under oath as a victim in the trial of State of Ohio v. Scott Haroff, supra. The court believed the defendant had committed perjury. Counts one, two and three, tampering with evidence, and count four, perjury, related to an incident which allegedly occurred on July 30, 1988 in which defendant accused her estranged husband, - 3 - David Carr, of beating her and inducing a miscarriage, resulting in the criminal case of State of Ohio v. David Carr, supra, which was dismissed by the prosecutor's office the morning of trial. Counts five through seven charged that defendant committed perjury by lying to the Cuyahoga County Grand Jury, at a prelimi- nary hearing and at trial, stating that she was pregnant when Brian Scott Haroff gave her drugs without her knowledge to induce her to miscarry, resulting in the criminal case of State of Ohio v. Scott Haroff, supra, which was dismissed by the trial court pursuant to a Crim.R. 29 motion for a judgment of acquittal. Defendant pled not guilty, and the matter proceeded to a bench trial on September 12, 1993 with Judge Thomas Pokorny presiding. On September 24, 1993, the defendant was found guilty of all seven counts and was remanded to jail pending the presentence report from the probation department. On December 2, 1993, the defendant was sentenced to one year on each of the seven counts, to be served concurrently. On January 12, 1994, a hearing was held on the defendant's motion for shock probation. The motion was granted, and the defendant was placed on shock probation for a term of five years. - 4 - I. Counts One Through Four, Resulting in the Case State v. Carr, Case No. CR-296,008. (The July 30, 1988 Incident) After having been arrested in May, 1989, on a charge of harassing the wife of her ex-husband, David Carr, the defendant filed a complaint that on July 30, 1988, ten months earlier, her then-estranged husband had beaten her so severely that she suf- fered a miscarriage and "parts of the baby fell out." To support this accusation against David Carr, the defendant presented Polaroid photographs to the Westlake police depicting alleged injuries to her face and body and a letter written by a purported witness, "Karen Weekly." In addition, she presented a copy of a police report dated August 2, 1988 which supposedly described the incident of July 30, 1988. These three pieces of physical evi- dence (the photographs, the Weekly letter and the August 2, 1988 Westlake police report) are the items which form the basis for the first three counts of the indictment against defendant for tamper- ing with evidence in order to have her ex-husband indicted. The defendant testified to the Grand Jury under oath as to the pur- ported details of the beating incident, which testimony was the basis for the fourth count in the indictment against her for perjury. The case against David Carr was dismissed the day of trial. The prosecutor's office was unable to obtain the medical records of - 5 - the defendant because, according to defendant, they were "stolen" from the Cleveland Clinic. A. The defendant's Grand Jury testimony was the basis for the indictment in the matter of State v. Carr The state's key evidence regarding the first alleged inci- dent, the July 30, 1988 beating, established that the defendant's testimony, under oath, to the grand jury on November 12, 1989 was essential to the indictment of David Carr on the charges of aggravated burglary, a violation of R.C. 2911.11, and felonious assault, R.C. 2903.11. Prosecutor Judith Hritz testified that the defendant gave testimony under oath before the grand jury that David Carr had come to her apartment on the morning of July 30, 1988, that he had come with flowers and that she had talked to him through the window before the beating incident occurred. Hritz testified by reading a part of defendant's statement in which she stated that, as a result of the beating, she went to the hospital, miscarried the baby, called the police and made police reports and gave pictures for the file. In the presentation of its case against the defendant on the first four counts of the indictment, the state presented evidence to show, first, that the alleged beating of July 30, 1988 never occurred and, second, that the defendant was not pregnant in July - 6 - of 1988 and was, therefore, unable to have experienced a miscar- riage as a result of a beating. B. The state presented evidence that the alleged beating of July 30, 1988 did not occur First, the state introduced testimony to support its claim that the beating of the defendant by David Carr on July 30, 1988 never occurred and, therefore, the evidence which the defendant proffered to officials corrupted the outcome of their investiga- tion of the alleged incident. To support its position, the state called numerous witnesses, including members of the Westlake Police Department, an expert from the Polaroid Corp., the defendant's former domestic relations attorneys, Karen DeSimio (also referred to as Karen Weekly) and Scott Haroff (also referred to as Scott Harris) (as alleged witnesses to the events of July 30, 1988) and David Carr (as the alleged perpetrator of the beating). D e t . Thomas J. Blue, Sr. of the Westlake Police Department testified that on the date of the alleged beating incident, July 30, 1988, he responded to a call from a male caller to check for an ex-husband throwing rocks at a building at 1300 Bobby Lane. Det. Blue stopped a car which matched the description and identified the individual driving as David Carr. Det. Blue testified that the stop took five minutes and that no one told him that they had been beaten or beaten to the point where they lost a baby. He did not see anyone - 7 - with blood on him, and there was nothing in David Carr's appearance to suggest an altercation. Ptl. Kenneth Delphing testified that on April 7, 1989, he took a report from Deborah Urbanek, who filed a complaint that she was being harassed by her fiance David Carr's ex-wife, Barbara Carr. On May 18, 1989, Delphing was assigned to process Barbara Carr, the defendant/appellant in this case, for booking. During the processing, the defendant told Delphing that her ex-husband, David Carr, had assaulted her a year prior to this incident. Delphing testified that he advised the defendant that she could file a report and handed her two blank statement forms, which he signed so that the statement forms would come back to him. Ptl. Delphing identified State Exhibit 8 as a Xerox copy of a statement of defendant dated August 2, 1988 with his signature at the bottom. The report describes the beating incident which the defendant claimed occurred on July 30, 1988. Delphing testified that the defendant never gave him that report, that he was on vacation on August 2, 1988 and that the Westlake police were unable to locate an original report. Delphing testified that all original reports are filed in the police department and that the report of August 2, 1988 was not listed on the defendant's file card. On the two occasions that he had contact with the defendant, she never mentioned a police report of August 2, 1988. Det. Janis of the Westlake Police Department arrested the defendant on May 18, 1989. The defendant never mentioned any - 8 - assault charge at that time. Det. Janis testified that the defendant came to the police station on May 24, 1989 to file an assault report against her estranged husband, David Carr. When Det. Janis questioned why she waited so long to file the report, she told him her attorney at the time, Brian Williams, told her the matter would be handled in Summit County Domestic Relations Court. The defendant made a written statement regarding the alleged beating which she received on July 30, 1988. She stated that there were no witnesses, but Scott Harris and Karen Weekly came over later in the day. Janis testified that the defendant told him that Scott's name was Harris, not Haroff, and that she did not know where Harris or Weekly could be located. Det. Janis testified that the defendant presented polaroid photos of the injuries of the July 30th beating which Karen Weekly had and a letter from Karen Weekly. Det. Janis testified that State's Exhibits 10 through 13 were copies of the Polaroid photo- graphs which he made with the assistance of Ptl. Delphing because the defendant did not want him to keep the originals. Det. Janis identified State's Exhibit 14 as an original which the defendant agreed to let him keep. On redirect, Janis testified that the defendant never mentioned or reported any beating which allegedly occurred on May 20, 1989. Janis further testified that on May 24, 1989, the defendant did not have a black eye or swollen lip as depicted in the photographs. Janis testified that the defendant told him that she had been hit in the face July 30, 1988 as - 9 - depicted in State's Exhibit 14. Janis testified that on May 24, 1989, the defendant only reported the July 30, 1988 incident. The state called Lee Shaw as an expert witness from Polaroid Corporation, who examined State's Exhibit 14 and identified it as a piece of specter Polaroid film which, according to the line coding, was manufactured on December 8, 1988. He further testified that it would be impossible for an individual to have taken the photographs in July of 1988 with that film. Janet H. Gazdic, Chief Administrative Assistant for Drs. Hill & Thomas, testified that in May, 1988, at Sawmill Creek, the defendant told her that her marriage to David Carr was falling apart and that he had beaten her up and she had lost a baby. The state called the defendant's attorneys to testify. Brian Williams, who was an attorney handling the domestic relations case of the defendant, testified that it would be his policy to advise a client who claimed to be a victim of a crime to contact the police department that would have jurisdiction and make a report -- that it would be his duty both ethically and morally to do so. Attorney David Ferguson identified State's Exhibit 20 as an affidavit signed by the defendant in which the defendant swore that she took a medical exam the first week of July, 1988 which indicated that she was pregnant and that the only person with whom she had sexual contact was David Carr. Ferguson testified he would advise a client to report a felony to the proper authorities and - 10 - that he has never advised a client in that situation not to report a felony. The State of Ohio called Mark Stanton to testify regarding his representation of David Carr in the criminal case against him relating to the July 30, 1988 incident. Mr. Stanton testified that in his attempt to gain the medical records of the defendant, he was told that the medical records had been stolen. Mr. Stanton testified that the day before trial, he gathered all the informa- tion that he had, he went to Cuyahoga County Prosecutor John T. Corrigan and asked him to dismiss the case against David Carr. Prosecutor Corrigan recommended that the case be dismissed, and it was dismissed the next morning, the morning of the scheduled trial. The state called Karen DeSimio (also referred to as "Karen Weekly"), who identified State's Exhibit 16 as a letter she had seen on the kitchen table at the apartment she shared with the defendant. She claimed she had not typed the letter nor signed it. Ms. DeSimio also testified that she did not see the defendant with a black eye in 1989. DeSimio testified that she had known the defendant since 1987 and that she had moved in with the defendant in September, 1988. DeSimio identified the police report, State Exhibit 63, that she made to the Westlake police. DeSimio testi- fied that she had no independent recollection of the events of July 30, 1988 but that the defendant had told her the date of the incident and had refreshed her memory of the events. - 11 - David Carr testified that his relationship with the defendant started in September 1984 and ended with his indictment November 7, 1988. They were married on June 28, 1986. Carr was served with a complaint for divorce in October 1987. Carr testified that the last time he had sexual relations with the defendant was Labor Day weekend, 1987. David Carr testified as to the incident of July 30, 1988. He testified that he stopped at the defendant's apartment, threw a couple of pebbles at her window and knocked on her door. He called her apartment from the drugstore and, when a man answered, decided to go back and get a license plate number of the man who was there. Carr testified that he was stopped by a Westlake police officer. He never entered the defendant's apartment nor had any contact with her that day. Carr testified that he had no knowledge of the July 30, 1988 alleged beating until Det. Janis called him in 1989 to make a statement, which he made on July 20, 1989. Scott Haroff testified that he was with the defendant over- night on the 29th of July and the morning of the 30th of July, 1988. Haroff testified that he called the Westlake police because David Carr was outside throwing pebbles. Haroff testified that Carr never came into the apartment, never beat the defendant, and that there was never any blood or injuries to the defendant. C. - 12 - The state presented evidence that the defendant was not pregnant in July of 1988 To support the state's claim that the defendant was not pregnant on July 13, 1988 and, therefore, was unable to have been beaten on July 30, 1988 until "baby parts fell out," the state called a number of witnesses who were co-employees of the defen- dant at the Cleveland Clinic and who were able to testify to the manner in which medical records were handled at the clinic and to the validity of the records presented to support the state's claim. The state also called two nurse practitioners who examined the defendant in August and September of 1988 and whose records supported the state's claim. Defendant was, at the time of the July 30, 1988 event, an administrator in the Laboratory Computer System Group of the Cleveland Clinic. Numerous co-employees of the defendant at the Clinic were called by the state to testify regarding the lab test results of the July 13, 1988 pregnancy test of the defendant, which was shown on State's Exhibit 66 as HCG Qual negative. The state called Phillip Bade as a qualified computer expert, who identified State's Exhibit 66 as a master microfiche, State's Exhibit 31 as the corresponding lab report of July 15, 1988 and State's Exhibit 32 as the lab test of July 13, 1988. On cross-examination, Bade was shown a Xerox copy of a lab result indicating a positive pregnancy test. On redirect, Bade testified that there was no microfiche to correspond with that defense exhibit. Adrienne Lane testified that she worked for the Cleveland Clinic and that it was - 13 - her responsibility to pick up and deliver the microfiche and computer tapes from the computer lab to the Medical Information Systems Department. She testified that in April 1993, Dr. Chou requested the lab report for July 15, 1988 but that the microfiche was not in the computer room. She then located the master microfiche, which she identified as State's Exhibit 66. She identified State's Exhibits 31 and 32 as the corresponding reports to Exhibit 66. Exhibit 32 depicted the lab test order for the defendant for a pregnancy test; Exhibit 31 was the corresponding lab report which indicated defendant's pregnancy test of July 13, 1988 was negative. Carol Hudson, a Cleveland clinic employee and supervisor of the Primary Lab Center, identified State's Exhibit 32 as defendant's lab test and identified State's Exhibit 31 as defendant's laboratory report. Dr. Chou testified that, at the request of the county prosecutor's office, he attempted to retrieve the microfiche for July 15, 1988 but was unable to locate it; however, Adrienne Lane found the master microfiche and made a copy, which Dr. Chou identified as State's Exhibit 31. Dr. Chou identified State's Exhibit 66 as the master microfiche and State's Exhibits 32 as a copy of the July 13, 1988 lab test. Vera Coughlin, a nurse practitioner at the Cleveland Clinic, testified that she saw the defendant on September 23, 1988 and identified State's Exhibit 17 as her report. Coughlin testified that the defendant was seen for a yeast infection and was given an internal exam. The defendant's last menstrual period was noted as - 14 - August 29, 1988. The defendant made no mention of pregnancy or miscarriage. The state called Mary Jean Lauretig, a nurse practitioner at the Cleveland Clinic, who identified State's Exhibit 17-A as the progress notes of her visit of August 3, 1988 with defendant for which the patient/defendant was referred to dermatology. Nurse Lauretig testified that if the defendant had had a black eye or a swollen lip, she would have marked it on the chart. Nurse Lauretig identified on Exhibit 17-A a note for a visit of the defendant on September 6, 1988. The defendant had a urine pregnancy test and a VD test, both of which tested negatively. Nurse Lauretig identified State's Exhibit 18 as a letter of September 15, 1988 which she wrote for the defendant at defendant's request. Lauretig testified that the portion at the bottom of the letter which stated "patient test in July indicated positive; recommended for re-test in September" was not written by her or at her instruction. Lauretig identified State's Exhibit 19 as the April 23, 1990 letter in which she stated she had not added the addendum at the bottom of her letter below her signature. II. Counts Five, Six and Seven, Resulting in the Case State v. Haroff, Case No. CR-276,351. (The December, 1990 Incident) Counts five, six and seven of the indictment related to a second incident which defendant alleged occurred more than two - 15 - years later. In the second incident, the defendant claimed to have been a victim of her boyfriend, Scott Haroff, and claimed that Haroff surreptitiously gave her drugs to induce her to miscarry her pregnancy in early December, 1990. The three counts of perjury related to the testimony which the appellant gave under oath at the preliminary hearing April 4, 1991 (count five), her testimony at the Grand Jury January 3, 1992 (count six) and her testimony at the trial of Scott Haroff April 27 through 28, 1992 (count seven). The state's key evidence presented to support counts five, six and seven of the indictment for perjury included testimony from a number of witnesses that the appellant had an abortion on December 8, 1990 and was, therefore, not pregnant at the time of the alleged incident. The state called Scott Haroff, who testified that the defen- dant told him that she was pregnant in November 1990 and that he told her to get an abortion. Haroff testified that he took the defendant to get an abortion at the Preterm Clinic on December 8, 1990. He claimed he waited for her and, after a couple hours, brought her home groggy. Haroff testified that the defendant told him it was done, and she hoped "he was happy." Jim Armstrong testified that he works at the Preterm Clinic and administers anesthesia for patients. Armstrong identified State's Exhibit 4 as an anesthesia consent form. Armstrong tes- tified that he changed the height from 5'5" to 5'0" based upon his - 16 - observation of the defendant. He testified that the record indicated the defendant was unconscious from 1:20 p.m. to 1:25 p.m. Donna Lengel testified that she was a counselor at the Pre- term Clinic. She testified that she counseled the defendant on December 8, 1990 for about an hour. Lengel identified State's Exhibit 4, and she remembered Armstrong changing the height from 5'5" to 5'0" because the defendant was a tiny patient. Lengel testified that she held the defendant's hand during the abortion and escorted her to the recovery room. Lengel saw the defendant on January 3, 1991 at the time of the defendant's follow-up exam. Dr. Sogar testified that he is an associate professor at Case Western Reserve, Chief of Gynecology at University McDonald Hospi- tal and Medical Director for Preterm of Cleveland. Dr. Sogar saw the defendant on November 28, 1990 and identified State's Exhibit 47B as his physical examination form and 47A as his intake inter- view form. Dr. Sogar testified he performed a pelvic examination on the defendant and found some bleeding, determined she was eight weeks pregnant and ordered an ultrasound. Dr. Sogar identified State's Exhibit 4 as defendant's medical records from Preterm; he identified his signature on the procedure sheet indicating that he did perform the abortion on December 8, 1990. Dr. Sogar identi- fied the second to the last page of State's Exhibit 4 as the abortion follow-up report of the defendant for January 3, 1991. Dr. Sogar testified that he saw the defendant on December 13, 1990 in his University Hospital office. She did not tell him she - 17 - had an abortion at Preterm on December 8, 1990, and he did not have the Preterm records in front of him. The defendant stated that she had been bleeding and passing clots. Dr. Sogar noted in his records his initial diagnosis of an incomplete spontaneous abortion. When Dr. Sogar examined the defendant, he found no tissue or bleeding and noted that she had a small uterus, so he did not treat her for an incomplete spontaneous abortion but gave her medication. Robert Benson, Jr. testified he and the defendant went to Orlando Sunday, December 9, 1990 and returned on Wednesday, December 12th. The defendant had no apparent health problems. On Wednesday, the defendant told Benson she had had a miscarriage and was bleeding, but later, the defendant told Benson she was preg- nant and considering an abortion. The state called Judge Daniel Gaul, who testified that he presided over the trial of Scott Haroff in April, 1992 and that the actual Preterm records of the defendant were submitted to the court under seal. Judge Gaul testified that the defendant took the stand and denied she had an abortion. Judge Gaul testified that it became clear that the court had documented evidence which contradicted her sworn testimony and directed her civil attorney to advise her of her constitutional right pursuant to Miranda v. Arizona (1966), 384 U.S. 436. As a result of receiving the information regarding the Preterm and after all the evidence was heard in the case, Judge Gaul testified that he granted a motion - 18 - for judgment of acquittal pursuant to a Crim.R. 29 motion on all three counts against Mr. Haroff. The defense called Dr. Fred Light. Dr. Light is a family physician accustomed to giving anesthesia and has delivered thousands of babies. Dr. Light reviewed the defendant's medical records, the Preterm records, State Exhibit 4 and medical progress notes (Defense Exhibit HH) which indicated that the defendant had a probable spontaneous abortion. Dr. Light testified that Defense Exhibit M depicted the defendant with severe bruises which could cause contractions that would expel the fetus immediately or even a week later. The defense then called Prosecutor Karl Wetzel, who testified that the defendant told him her medical records were stolen from the Cleveland Clinic. Wetzel was the prosecutor in the case of State v. David Carr, in which the defendant claimed to be the alleged victim. He testified that the defendant told him she met Scott Harris at a pool party two nights prior to the July 30, 1988 incident and that Harris took photographs of her injuries from that incident. On cross-examination, Wetzel testified that the defendant did not tell him that Scott Harris was Scott Haroff. Jeffrey Margolis, assistant prosecutor in State v. Haroff, testified that the defendant told him conflicting stories regard- ing the Preterm records. Margolis testified that before the State v. Haroff trial, in discussion with Dr. Sogar, Dr. Sogar did not recall the defendant having had an abortion at Preterm on December - 19 - 8, 1990 and that when he treated her on December 13, 1990, her condition was more consistent with a miscarriage than an abortion. In support of her appeal, defendant/appellant assigns four errors for our review. ASSIGNMENT OF ERROR I THE TRIAL COURT HAD NO JURISDICTION WHEN THE WRITTEN JURY WAIVER WAS NOT FILED. Within this assignment of error, defendant/appellant contends that although the she signed a written jury waiver form, the form was never filed and, therefore, the trial court had no jurisdic- tion for failure to comply with the statutory requirements of R.C. 2945.05. Appellant's argument is not well taken. The Ohio Supreme Court has held that jury waivers require strict compliance with R.C. 2945.05 or the trial court is without jurisdiction to proceed to trial without a jury. State ex rel. Jackson v. Dallman (1994), 70 Ohio St 3d 261. In Dallman, the actual written jury trial waiver was never produced for the re- viewing court nor was there evidence that the jury waiver was made a part of the record. The defendant also denied ever having exe- cuted a waiver of jury trial. However, in a recently decided case where the facts presented were similar to the facts in the matter sub judice, State, ex rel. Larkin v. Baker (1995), 73 Ohio St.3d 658, the Ohio Supreme Court held that the failure to strictly comply with R.C. 2945.05 by failing to file-stamp the written waiver and make it formally part - 20 - of the record did not deprive the court of jurisdiction to conduct the bench trial of the defendant and thereby entitle him to the extraordinary relief in habeas corpus. The Larkin court stated: Larkin fulfilled this condition to the common pleas court's authority to hold a bench trial, by executing a written waiver of his right to a jury trial and electing to be tried by the court. The failure to strictly comply with R.C. 2945.05 by not filing the executed written waiver was not to result in Larkin's failure to properly waive his right to be tried by a jury and elect to be tried by the court. The evidence is uncontroverted that he did so. Instead, the failure to comply with R.C. 2945.05 was a result of an error on the part of the trial court to formally file the executed written waiver. Based on the foregoing, the failure to strictly comply with R.C. 2945.05 by failing to file a properly executed written jury trial waiver under these unique circumstances was not a jurisdictional defect and did not affect the trial court's authority to proceed with a bench trial. Supra, at 661. In this instance, the record reflects that the totality of the circumstance clearly indicates that the appellant voluntarily chose to waive a jury trial, both orally and in writing, as evidenced by several different documents. The transcript indicates the execution of a written waiver form and indicates that the appellant was orally apprised of her rights and still chose to waive a jury. The docket clearly indicates that a jury trial was properly waived. A review of the written jury waiver as well as the oral dialogue between appellant and the court demonstrates that the appellant knowingly, voluntarily and intelligently waived her right - 21 - to a jury trial. The defendant never denied signing the jury waiver. In accordance with the foregoing, this assignment of error is not well taken. ASSIGNMENT OF ERROR II THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant/appellant next complains that her convictions are against the manifest weight of the evidence because the testimony of the state's witnesses was so inconsistent and unreliable that it cannot be relied upon to support a conviction beyond a reasonable doubt. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. - 22 - State v. Mattison (1985), 33 Ohio App. 3d 10; State v. Kimbrough (Feb. 18 1988), Cuyahoga App. No. 53473, unreported. The existence of contradictions in a witness's testimony does not render his or her testimony inherently unreliable. In- consistencies merely place the credibility of the witnessing issue. State v. Mattison, supra at 10. An appellate court should not disturb a jury verdict as con- trary to the manifest weight of evidence if some competent credi- ble evidence supports it. Id. at 14. Appellant was charged with three counts of tampering with evidence in violation of R.C. 2921.12(A)(2). The elements of the offense are three-fold: (1) that the defendant knows that an official proceeding or investigation was in progress or was likely to be instituted; (2) that the defendant, with such knowledge, made, presented or used a record, document or thing, knowing it was false; (3) for the purpose of misleading a public official who was or may be engaged in such proceeding or investigation, or with the purpose to corrupt the outcome of any such proceeding or investigation. The State of Ohio produced substantial evidence which sup- ported the trial court's verdicts on all three charges of tamper- ing with evidence. The first count involved the photographs which the appellant submitted to the Westlake Police Department. Appellant knowingly presented false things (photographs) with the purpose to mislead a - 23 - public official. Det. Janis testified that the appellant in- stigated the investigation and submitted the photographs to sup- port her complaint. Janis testified that appellant had no fresh bruises or injuries on May 24, 1989 and that she would have if the original Polaroid, State's Exhibit 14, were really from May 20, 1989. Appellant told Det. Janis that the photographs represented a beating from July 30, 1988. The state presented an expert who testified that the original polaroid film of State's Exhibit 14 was not even manufactured until December of 1988. Appellant misled the police by submitting the Weekly letter to the police. The state presented evidence from Karen DeSimio, the purported author, that the letter was not authentic but a forgery. The state presented further evidence that Karen Weekly was, in fact, Karen DeSimio and that the appellant knew the whereabouts of Karen DeSimio but failed to give that information to Det. Janis for the investigation. The state presented evidence that the August 2, 1988 police report contained fabricated evidence and that the report, itself, was fabricated and never actually filed. Ptl. Delphing never met appellant until May 18, 1989. He could not have been given the report or have signed the report on August 2, 1988 because he was on vacation. Ptl. Delphing testified that he had given the appellant some statement forms, which he had signed, on May 18, 1989. Delphing testified that the August 2, 1988 statement was not - 24 - listed on appellant's file card, and no original of the August 2, 1988 statement existed in the police file. The state produced sufficient evidence that the July 30, 1988 incident did not occur. The photographs, Weekly letter and August 2, 1988 police report were fabrications provided by appellant either to the police or to prosecutors with knowledge that an investigation was in progress and with purpose to mislead the authorities and to corrupt the outcome of the investigation and subsequent trial. Appellant was charged with four counts of perjury, in viola- tion of R.C. 2921.11. The State of Ohio produced substantial evidence which supported the trial court's verdicts on all four counts of perjury. In count four of the indictment, the appellant was charged with perjury in her grand jury testimony on November 12, 1989 involving the July 30, 1988 incident which resulted in the in- dictment of her estranged husband, David Carr, in Criminal Case No. 296,008. Appellant testified under oath that on July 30, 1988, she was pregnant and that her estranged husband came to her apartment, was going to force her to have an abortion, and beat her, causing parts of the baby to fall out. She said she went to the hospital, had a miscarriage, called the police, and made police reports and gave them pictures. The state presented witnesses who substantiated the fact that the alleged July 30, 1988 beating did not occur. Ptl. Blue was the - 25 - officer on the scene and had no indication that a beating had occurred. Scott Haroff was with appellant and testified there was no beating, no blood, no baby parts and no bruises. David Carr testified that the incident never occurred. The state presented evidence to indicate that the appellant was not even pregnant at that time. Testimony of Dr. Chou, Adrienne Lane, Phillip Bade, Carol Hudson, Vera Coughlin and Mary Jean Lauretig all supported the state's theory that appellant was not pregnant on July 13, 1988 and did not sustain a beating on July 30, 1988. The state produced overwhelming and substantial evidence that the appellant committed perjury in her grand jury testimony on November 12, 1989, as charged in count four of her indictment. Counts five, six and seven of perjury against the appellant involve appellant's testimony in the case of State v. Scott Haroff. Brian Scott Haroff was charged with giving drugs to appellant on November 27 and 30, 1990 which caused her to suffer a miscarriage. Count five relates to the testimony at the preliminary hearing on April 4, 1991; count six relates to appellant's testimony at the grand jury on January 3, 1992; and count seven relates to appellant's testimony at trial from April 27 through April 28, 1992. The state produced substantial testimony to show that the appellant did not have a miscarriage from drugs which Haroff had surreptitiously given her but, in fact, had an abortion on December - 26 - 8, 1990. The state presented evidence substantiating that appellant had an abortion on December 8, 1990. Donna Lengel tes- tified that she counseled the appellant, held her hand through the procedure and identified the appellant in court; Armstrong testified that he administered anesthetics to the appellant and changed the chart to reflect the proper height because she looked so tiny; Dr. Sogar testified that he performed the abortion on December 8, 1990 and further testified that when he saw the appellant on December 13, 1990, he wrote his initial diagnosis on the chart but, upon examination, observed no tissue and a small uterus and therefore did not treat her for a spontaneous abortion; Scott Haroff testified that he took appellant to Preterm for an abortion on December 8, 1990, sat there for several hours and took her home groggy and that appellant stated, "I hope you're happy now it's done." Haroff further stated that appellant later told him that she did not have the abortion, so he took her back for an abortion on January 3, 1991. Haroff never knew when she had the abortion. Dr. Sogar and Donna Lengel identified the appellant's Preterm medical records, which included the January 3, 1991 abortion follow-up report. Judge Daniel Gaul testified that he presided over the trial of Scott Haroff in April of 1992 and that the actual Preterm records of appellant were submitted to the court under seal. Judge Gaul testified that appellant took the stand and denied she had an - 27 - abortion. Judge Gaul testified that it became clear that the court had documented evidence which contradicted her sworn testimony and directed her civil attorney to advise her of her constitutional rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436. An examination of the record indicates that ample competent, credible evidence was presented by the state to allow the trier of fact, in this case the trial judge, to reasonably conclude that all of the elements of the charges of tampering with evidence and perjury were proven beyond a reasonable doubt. Therefore, the appellant's conviction was not against the manifest weight of the evidence. In accordance with the foregoing, this assignment of error is not well taken. ASSIGNMENT OF ERROR III THE RESTITUTION ORDER IS VOID, AN ABUSE OF DISCRETION OR A DENIAL OR DUE PROCESS AND EQUAL PROTECTION. In this assignment of error, defendant/appellant complains that the trial court had no authority to order appellant to pay restitution when the restitution was not for property damage or the value of the property that is the subject of a theft offense. Appellant here correctly argues that the case of State v. Wohlgemuth (1990), 66 Ohio App.3d 195, is the controlling authority for the proposition that restitution may only be ordered as part of - 28 - sentencing under circumstances prescribed in R.C. 2929.11. Specifically, R.C. 2929.11 provides for a term of incarceration for the commission of a felony of the third degree, and the defendant, "in addition may be fined or required to make restitution. The restitution shall be fixed by the trial court as provided in this section." In the case of State v. Ashley (8th App.Dist. 1991), 74 Ohio App.3d 92, the court held that pursuant to the sentencing statute, R.C. 2929.11, a court may make payment of child support a condition of probation for criminal non-support but it could not order child support as restitution. However, in the case sub judice, restitution was ordered not as part of the appellant's sentence, pursuant to R.C. 2929.11(E), but as a condition of appellant's probation pursuant to R.C. 2951.02. Restitution, in this instance, became a specific condi- tion of the probation imposed by the trial court upon the appellant. The record need not show that probation was granted only on the condition that restitution was or would be paid. Following the statutory language of R.C. 2951.02, compliance with the requirements "shall be a condition of probation." In order to determine whether the trial judge can order restitution for financial damage as a condition of probation, the R.C. 2951.02 criteria for and against probation should be examined: Sec. 2951.02 Criteria for and against proba- tion or suspension of sentence; conditions. - 29 - (A) In determining whether to suspend sen- tence of imprisonment and place an offender on probation, or whether to otherwise suspend an offender's sentence of imprisonment pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code, the court shall consider the risk that the offender will commit no other offense and the need for protecting the public from the risk, the nature and circumstances of the offense, and the history, character, and condition of the offender. (B) The following do not control the court's discretion, but shall be considered in favor of placing an offender on probation or in favor of otherwise suspending an offender's sentence of imprisonment pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code: * * * (9) The offender has made or will make restitution or reparation to the victim of his offense for the injury, damage, or loss sustained. * * * (C) When an offender is placed on probation, *** the probation or other suspension shall be at least on condition that, during the period of probation or other suspension, he shall abide by the law and not leave the state without the permission of the court or his probation officer. In the interests of doing justice, rehabilitating the offender, and ensuring his good behavior, the court may impose additional requirements on the offend- er, including, but not limited to, requiring the offender to make restitution for all or part of the property damage that is caused by his offense and for all or part of the value of the property that is the subject of any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that the person committed. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspen-sion. (Emphasis added.) - 30 - R.C. 2951.02(B)(9) allows the trial court to consider whether "the offender has made or will make restitution or reparation to the victim of his offense for the injury, damage or loss sus- tained." When the trial court determines whether to place an offender on probation, R.C. 2951.02(C) established the minimum conditions that shall apply. R.C. 2951.02(C) also allows the trial court to impose additional requirements upon the offender which the trial court believes are in the interests of doing justice, rehabilitating the offender and ensuring his good behavior. While there is no case which is controlling in this jurisdic- tion on the very narrow issue of whether a trial court may impose restitution as a condition of probation where the restitution is not ordered under R.C. 2929.11(C), two unreported cases from this jurisdiction stand for the proposition that a trial court may impose additional requirements upon an offender pursuant to R.C. 2951.02(C) and R.C. 2951.02(B)(9). This court, in Brook Park v. Smith (Aug. 14, 1986), Cuyahoga App. No. 51013, unreported, has addressed the identical issue. In Smith, the court pointed out that R.C. 2929.11(E) had no application when the term of imprison- ment was suspended and the offender placed on probation, and when a condition of probation included a payment to "compensate the victim for damages caused by the offense ***." Smith, supra, at 5. This rationale has been followed in State v. Swann (1988), 51 Ohio App.3d 141, at 142, when the court stated, "We hasten to note, however, that the trial court has discretion in selecting the terms - 31 - and conditions of probation, including compensation to the victim." State v. Trivedi (1982), 8 Ohio App.3d 412, held it was improper for a trial court to order restitution as a condition of probation that was not explicitly authorized by R.C. 2929.11(E) or R.C. 2951.02.(C). In the unreported case of State v. Henry (Feb. 13, 1992), Cuyahoga App. No. 59837, this court found that where restitution was ordered not as a part of the appellant's sentence but as a condition of the appellant's probation, restitution for medical and psychological damages was authorized by statutes R.C. 2951.02(B)(9) and R.C. 2951.02(C) and was, therefore, a valid order. In 1994, this court again addressed this same issue in the unreported case of State v. Gorny (May 5, 1994), Cuyahoga App. No. 64261, and, following the mandate of Wohlgemuth, supra, which stated "R.C. 2929.11(E) limits the authority of the trial court to orders to pay property damage or the value of property stolen," held that the court may not order a defendant on probation to pay restitution. The Gorny court focused upon the statutory require- ments of R.C. 2929.11(E) to reach its decision despite the fact that the Henry decision stated that R.C. 2929.11(E) had no appli- cation because, as in this case, the trial court did not impose restitution in addition to a term of incarceration but suspended the term of incarceration and placed the appellant Gorny on proba- tion, conditioned upon his payment of restitution. - 32 - The authority of a trial court to order restitution, repara- tion and compensation to a victim as a condition of probation should be analyzed by applying both R.C. 2951.02(B)(9) and R.C. 2951.02(C), not R.C. 2929.11(E). As long as the amount ordered to be paid by the defendant is a condition of probation and is rea- sonably related to the offense for which the offender has been placed on probation, the trial court has the authority under R.C. 2951.02 to place conditions of probation upon the offender which will permit compensation to the victim for the "injury, damage, or loss sustained." As the court stated in Henry, supra, it is clear that the legislature contemplated a defendant making restitution in cases where injury resulted. R.C. 2951.02(B)(9). Although R.C. 2951.02(C) specifically contemplates restitution for property damage, it does not limit a judge from imposing other requirements on a defendant once he is placed on probation. We therefore reiterate the holding set forth by this court in Brook Park v. Smith, supra that restitution may be ordered as a part of the terms of probation. See, also, State v. Pittman, supra; Henry, supra, at 3. Following the reasoning of Brook Park v. Smith and State v. Henry, we hold that pursuant to the statutory language of R.C. 2951.02(B)(9) and R.C. 2951.02(C), a trial court has the authority to order restitution as a condition of probation where, as here, - 33 - the restitution is not a required part of the sentence imposed upon a defendant pursuant to R.C. 2929.11(E). The trial court, however, abused its discretion and denied the appellant due process when there was no hearing on restitution as it is error to fail to have a hearing to determine damage, cost, effort to pay and ability to pay. State v. Irwin (1987), 39 Ohio App.3d 12. Due process requires a determination of amount that bears a reasonable relation to damage. State v. Trivedi (10th App.Dist.1982), 8 Ohio App.3d 412, at 416. "A trial court's ability to order restitution is strictly limited to actual damages or loss caused by the defendant." State v. Montes (8th App.Dist. 1993), 92 Ohio App. 3d 539. Failure to hold a hearing on the determination of the amount of restitution and the appellant's ability to pay was plain error by the trial court. State v. Long (1978), 53 Ohio St.2d 91. Therefore, the order of restitution is reversed and the matter of restitution is remanded for hearing to determine the proper amount of restitution bearing a reasonable relation to actual damage or loss caused by the defendant/appellant and her ability to pay. ASSIGNMENT OF ERROR IV APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. Defendant/appellant next complains that she was denied effec- tive assistance of counsel because, she contends, her counsel - 34 - neglected to object to the order of restitution which prejudiced the appellant. The standard for governing a claim of ineffective assistance of counsel was set forth in Strickland v. Washington (1984), 466 U.S. 668. The test is a two-pronged test. In the first step in the analysis, the defendant must demonstrate that counsel's per- formance was deficient and, in the second step, that the deficient performance prejudiced the defense. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, at 694. Consistent with our determination in assignment of error three that the trial court is vested with authority to order restitution as a condition of probation pursuant to the statutory authority of R.C. 2951.02, appellant cannot show that counsel's failure to object to the order of restitution demonstrates deficient performance. Therefore, the defendant/appellant was not denied effective assistance of counsel and this claim is not well taken. Judgment affirmed in part, reversed in part and remanded for a hearing on the matter of restitution pursuant to our directive on Assignment of Error No. 3. - 35 - It is ordered that appellee and appellant shall share the costs of this matter in equal portions. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .