COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66846 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAY SCOTT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-302396 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAY SCOTT, Pro Se CUYAHOGA COUNTY PROSECUTOR Ross Prison Facility BY: KAREN L. JOHNSON, ESQ. Unit jb-186 ASSISTANT COUNTY PROSECUTOR 16149 State Route 104 The Justice Center P.O. Box 7010 1200 Ontario Street Chillicothe, Ohio 45601 Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant, Jay Scott, appeals pro se, his conviction for one count of Felonious Assault (R.C. 2903.11) with two violence specifications and two counts of vandalism. (R.C. 2909.05) In his first and second assignments of error, appellant claims that the trial court abused its discretion in denying his motion for a continuance. In his third assignment of error, appellant claims that improper closing arguments resulted in a denial of his right to a fair trial. Upon review, we find appellant's assignments of error to be without merit. Thus, we must affirm his conviction. Duane Williams testified that on September 5, 1993 at approximately 2:30 a.m., he arrived at his ex-wife's apartment to 1 bring her child support money. He stated that the appellant arrived shortly thereafter; that he followed him to the apartment door uninvited; that the appellant argued with him and his ex-wife and that he stabbed him in the shoulder as he attempted to close the apartment door. Williams stated that he was stunned and went into the bathroom to stop the bleeding while his ex-wife called the police. Moments later he looked out the window; saw a Camaro parked with the driver's side door open and shortly thereafter discovered that the tires of his Jeep had been slashed. Grace Uitenham, Williams' ex-wife, stated that she had a romantic/sexual relationship with the appellant. She corroborated 1 Williams explained that it was not unusual for him to receive calls from his ex-wife at that hour because he worked nights. - 3 - Williams' testimony; stated that she saw the appellant throw objects at the apartment after the stabbing and that the appellant telephoned her while the police were there and gloated over the attack. Ms. Uitenham stated that during the call, the appellant asked her whether Duane could "feel something steel" and that he also told her that she was going to have a "real trip" in the morning. (Tr. 103) Responding officer, Frank Friedel testified that the victims told him that the appellant committed the assault. He stated that he was present when the appellant placed a threatening phone call to Ms. Uitenham and that after the call, Uitenham asked him to inspect her car because she was concerned that the appellant had damaged it. Friedel confirmed that the tires of both victims' cars had been slashed. Racine Gresham testified that she was a co-worker of Uitenham's; that she was the individual who introduced the appellant to Ms. Uitenham; that the appellant called her shortly after the incident and admitted being at Uitenham's apartment on September 5th but denied committing the assault. She further stated that the appellant called her just a few days prior to trial and attempted to confuse her about the date discussed during their initial conversation. Ms. Gresham maintained however, that during their initial conversation the appellant told her that he had gone to the Uitenham apartment on the morning of September 5, 1993. The defense attempted to establish the alibi that the - 4 - appellant was at his uncle's apartment at the time of the assault and that he placed a long distance call to his mother at 4:39 a.m. Appellant's uncle testified that despite his day job, it was his practice to stay up nights, watch late movies and check his automobile, a Camaro, so it wouldn't be stolen. He denied permitting the appellant use of his car and stated that at the time of the assault, the appellant had just returned from "Fat Tuesdays," a local bar, carrying a piece of birthday cake for him. The former manager of "Fat Tuesdays" testified that he drove the appellant home around "3:00 or 3:15," or "something like that;" (Tr.231) that the appellant was drunk and fell when he exited the car and that the appellant did not pick up anything after he fell. A former marine who attended boot camp with the appellant testified that he remembered the appellant as being an upstanding person and good soldier who had leadership ability. The former marine admitted that he had not kept in touch with the appellant since their time in the service. The appellant denied the assault; stated that he arrived home at 2:30 a.m. after attending a birthday party for a bar maid at Fat Tuesdays and that he carried a piece of cake home for his uncle. He stated that he then showered, shaved and went to bed but couldn't sleep because he was trying to think of a particular biblical citation. He stated that he called his mother in Florida at 4:39 a.m. so she could identify the citation for him. The jury found the appellant guilty and the instant appeal followed. - 5 - I THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR CONTINUANCE THUS PREJUDICIALLY HARMING APPELLANT AND DENYING APPELLANT HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND HIS RIGHTS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. II THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR CONTINUANCE THUS DENYING APPELLANT HIS CONSTITUTIONAL RIGHT TO PRESENT WITNESSES ON HIS BEHALF. Appellant's first and second assignments of error raise similar issues of fact and law. Hence, they shall be considered together. Appellant argues the denial of his motion was prejudicial because it prevented him from establishing his alibi and also prevented him from presenting evidence of his good character. Appellant's arguments are not well taken. The decision to grant a continuance is within the sound discretion of the trial judge. State v. Powell (1990), 49 Ohio St.3d 255, State v. Unger (1981), 67 Ohio St.2d 65. An abuse of discretion connotes more than an error of law. It implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 515. In determining whether to grant or deny a motion for continuance, the trial judge may consider the following factors: the length of the delay requested; prior continuances, inconvenience, the reasons for delay, whether the defendant contributed to the delay and other relevant factors. Unger, supra, at 67-68. In the instant case, the reason for delaying the trial, did - 6 - not arise from newly discovered evidence or witnesses. See, State v. Johnson (1986), 24 Ohio St.3d 87. On the contrary, the appellant argued that he wished to secure the alibi testimony of his mother and the character testimony of three witnesses living in Florida and or California. The record demonstrates however, that the anticipated testimony of these witnesses would have been cumulative and entirely inconclusive on the issue of appellant's alibi. Appellant's mother was expected to testify that the appellant could not have committed the assault because he phoned her from his uncle's apartment at 4:39 a.m. However, the victims testified that the assault occurred at approximately 2:30 a.m. Hence, appellant's mother's testimony would have been entirely inconclusive with respect to his location at 2:30 a.m. Moreover, appellant's uncle already testified that the appellant allegedly placed a call to Tallahassee at 4:39 a.m. and submitted phone records to that effect. Thus, her testimony would have been cumulative. The record also demonstrates that the appellant and a fellow marine presented ample evidence of appellant's good character. Hence, the testimony of three additional character witnesses would also have been cumulative. We further find that at the time of the court's denial, the appellant had already participated in a pre-trial conference with newly retained counsel; that newly retained counsel indicated a readiness for trial (Tr. 7); that all discovery issues had been - 7 - satisfactorily addressed by the parties and that five State and four defense witnesses were available and ready to testify. In light of the factors set forth in Unger, supra, it was neither unreasonable, arbitrary nor unconscionable for the trial court to deny appellant's motion. In light of the ample alibi and character evidence adduced at trial, such denial did not prejudice the appellant. Hence, his first and second assignments of error are overruled. III APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF THE ASSISTANT PROSECUTOR'S IMPROPER CLOSING ARGUMENT. The record demonstrates that the appellant failed to object to 2 any portion of the prosecutor's closing arguments. Thus, absent plain error, any claimed error is considered waived on appeal. See, State v. Wade (1978), 53 Ohio St.2d 182 and State v. Long (1978), 53 Ohio St.2d 91. In light of the credible testimony offered by the victims and responding officers and the contrived, inconsistent testimony offered by the appellant and his defense witnesses, we decline to find plain error. Appellant's third assignment of error is overruled. The judgment of the trial court 2 The statements cited by the appellant as improper include the prosecutor's remarks that the jury shouldn't listen to appellant's defense because it was a smokescreen and a story; that the victims and responding officer were telling the truth and that when listening to appellant's testimony, he felt that he was in a different trial. Upon review of the entire record, we cannot say that such remarks permeated the trial or affected its fundamental fairness. See State v. Maurer (1984) 15 Ohio St.3d 239. - 8 - is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, P.J., AND PORTER, 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, at which time it will become the judgment and order of the court and time period for review will begin to run. .