COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66951 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN GOODWIN AKA : OPINION JEFFREY GOODWIN : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-302914. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor William Telzrow, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John P. Parker, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 -2- DAVID T. MATIA, P.J.: John Goodwin, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for the offense of having a weapon while under disability with firearm and violence specifications. Defendant-appellant assigns five errors and one supplemental error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On September 13, 1993 at approximately 9:20 p.m. Officers Norman Saborski and Guy Sako of the Cleveland Police Department were patrolling in the area of Kinsman Avenue and East 119th Street in a marked police car. The officers were on regular patrol duty. While traveling southbound on East 119th Street, the officers observed defendant-appellant wearing a white hooded sweatshirt run across the street in front of their squad car and get into an automobile which then drove away from the scene at a high rate of speed. The officers observed people standing on the same side of the street from which defendant-appellant had just crossed. As the officers approached the people, the officers heard yelling, "Hey, he just robbed him, he just robbed him!", as the people pointed to the car containing defendant-appellant which had just left the scene. The officers made a u-turn and began to pursue the vehicle. After a short pursuit, the vehicle pulled into a driveway and the -3- driver fled the vehicle before he could be apprehended. The identity of the driver remains unknown. As the officers approached the vehicle, defendant-appellant jumped out of the passenger door and began to run. After approximately one step, defendant-appellant fell flat on his face. Defendant-appellant then stood back up and continued to run. The officers observed a 12-gauge sawed-off shotgun laying on the ground where defendant had fallen. Both officers maintain that the shotgun was not there before defendant-appellant fell. Defendant-appellant was apprehended after a brief foot chase in which defendant-appellant scaled a series of fences and tried to hide under a parked automobile in an effort to evade capture. After defendant-appellant was placed in custody the police officers retrieved the sawed-off shotgun and discovered that it was loaded with two live rounds of ammunition. The officers also observed that defendant-appellant was wearing a dark colored handkerchief tied around his neck. The officers believed defendant-appellant had used the handkerchief to conceal his identity at the time of the alleged robbery. On November 15, 1993 defendant-appellant was indicted by the Cuyahoga County Grand Jury for one count of carrying a concealed weapon in violation of R.C. 2923.12 with violence specifications and one count of having a weapon while under disability in violation of R.C. 2923.13 with firearm and violence specifications. -4- On November 17, 1993 defendant-appellant was arraigned whereupon he entered a plea of not guilty to the indictment. On November 24, 1993 defendant-appellant filed a motion to suppress evidence. On December 10, 1993 the trial court conducted a hearing on defendant-appellant's motion to suppress. Prior to the suppression hearing, defendant-appellant waived his right to a jury trial pursuant to R.C. 2945.05. The trial court overruled defendant- appellant's motion to suppress evidence. A bench trial commenced immediately after the conclusion of the suppression hearing. At the conclusion of the state's case, defendant-appellant moved for acquittal pursuant to Crim.R. 29. The trial court granted defendant-appellant's motion for acquittal with respect to the charge of carrying a concealed weapon but denied the motion as to the charge of having a weapon while under disability. Defendant-appellant testified at trial that he was being driven to his girlfriend's house by an acquaintance when he fell asleep in the vehicle. When he awoke, defendant-appellant stated that the vehicle was traveling down East 119th Street at a high rate of speed with a police car in pursuit. Defendant-appellant testified further that, after the vehicle in which he was riding stopped, he attempted to flee from the police officers because he was then on parole and did not want to get into further trouble. Defendant- appellant disputed the police officers' version of the foot chase claiming instead that he was apprehended immediately after exiting the vehicle and falling down. -5- Defendant-appellant maintained that he did not have a sawed-off shotgun in his possession nor did he have any involvement in the alleged robbery. The trial court found defendant-appellant guilty of having a weapon while under disability as charged in the indictment. On January 31, 1994 the trial court sentenced defendant-appellant to Lorain Correctional Institution for an indefinite term of two to five years in addition to a three year actual term of incarceration on the firearm and violence specifications. Defendant-appellant filed a timely notice of appeal from his conviction in the trial court. II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE APPELLANT WAS A FULL PARTICIPANT IN AN ARMED ROBBERY WHEN HE WAS NOT INDICTED FOR SUCH AN OFFENSE. A. THE ISSUE RAISED: ABUSE OF DISCRETION Defendant-appellant argues that the trial court abused its discretion by stating in its journal entry that defendant- appellant was a "*** full participant in an armed robbery in which either defendant or a co-defendant held a shotgun and defendant sped away with co-defendant in a car with the shotgun in the car." Defendant-appellant contends that since he was only indicted for carrying a concealed weapon and having a weapon while under disability, he was not required to defend against the -6- charges of robbery and the trial court abused its discretion in relying upon evidence of the robbery. The state contends that evidence of the robbery was relevant and probative to whether defendant-appellant possessed the sawed- off shotgun. In addition, the state argues that defendant- appellant has waived the right to challenge the robbery testimony by failing to object to that testimony at the trial court level. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR WAIVER The Ohio Supreme Court has found that an appellate court will not consider issues that arise during the course of the trial which are not brought to the attention of the trial court through objection or otherwise. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41. Absent a finding of plain error, such issues are waived and may not be raised on appeal. State v. Kent (1980), 68 Ohio App.2d 151; State v. Barber (June 2, 1994), Cuyahoga App. No. 65262, unreported. C. STANDARD OF REVIEW FOR ABUSE OF DISCRETION The trial court's reliance upon trial testimony will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: -7- The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error or law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. D. TRIAL COURT DID NOT ABUSE ITS DISCRETION At the outset, a review of the record demonstrates that defendant-appellant's counsel not only failed to interpose an objection to the testimony concerning the robbery in which defendant-appellant was involved but elicited testimony from the police officers regarding the facts surrounding the robbery. Accordingly, defendant-appellant has effectively waived the right to appeal the judgment on that ground. State v. Williams (1977), 51 Ohio St.2d 112. Even if defendant-appellant had not waived his right to appeal the judgment, this court cannot now say that the trial court abused its discretion by allowing testimony relating to the robbery given the fact that the events leading to defendant- appellant's arrest and subsequent indictment for having a weapon while under disability stemmed from the robbery and pursuit. Defendant-appellant's first assignment of error is not well taken. -8- III. SECOND AND SUPPLEMENTAL ASSIGNMENTS OF ERROR Defendant-appellant's second assignment of error states: THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL PURSUANT TO ARTICLE I, SECTION 5 OF THE OHIO CONSTITUTION. Defendant-appellant's supplemental assignment of error states: THE TRIAL COURT LACKED JURISDICTION TO TRY AND CONVICT THE APPELLANT WHEN IT FAILED TO STRICTLY COMPLY WITH O.R.C. 2945.05. Having a common basis in both law and fact this court shall consider defendant-appellant's second and supplemental assignments of error concurrently. A. THE ISSUE RAISED: JURY TRIAL Defendant-appellant argues through his second and supplemental assignments of error that the jury waiver executed in open court and contained in the trial court file was not a knowing, intelligent and voluntary waiver because the trial court failed to inform defendant-appellant that a jury verdict in any criminal case must be unanimous. In addition, defendant-appellant argues that the trial court did not have jurisdiction to try and convict him since it did not file a written waiver of jury form with the clerk of court pursuant to R.C. 2945.05. Defendant-appellant's second and supplemental assignments of error are not well taken. B. STANDARD OF REVIEW FOR JURY WAIVER R.C. 2945.05 states: In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court -9- without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I ***, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury." Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had an opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. In Ohio, a trial court is not required to inform a defendant personally about his right to a jury trial before accepting a written waiver of jury trial. State v. Morris (1982), 8 Ohio App.3d 12. Nor does a jury waiver have to be signed by the defendant in front of the judge in open court. State v. Walker (1993), 90 Ohio App.3d 352. 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. C. JURY WAIVER WAS VALID In this case, there is no dispute that defendant-appellant executed a written waiver of jury trial which was also signed by defendant-appellant's counsel. The waiver, which is contained in the trial court's file, states: -10- -11- DEFENDANT MAY WAIVE JURY TRIAL I, John Goodwin, the defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this State, I have a constitutional right to a trial by jury. In addition, before accepting the written jury waiver in open court, the trial court asked defendant-appellant three separate times whether the waiver was voluntary. Defendant-appellant responded, on the record, that the waiver was voluntary and that he had not been threatened or promised anything in exchange for executing the waiver. At this point, the trial court accepted the written waiver and began the suppression hearing. A review of the written jury waiver as well as the oral dialogue between defendant-appellant and the trial court demonstrates that defendant-appellant knowingly, voluntarily and intelligently waived his right to a jury trial. Defendant- appellant's contention that the trial court should have informed him that a unanimous verdict is required for a conviction in all criminal cases is unsupported by law and without merit. See State v. Morris, supra. Defendant-appellant challenges the trial court's jurisdiction to conduct a bench trial based upon the failure of the trial court to file the executed waiver of jury trial with the clerk of courts. Defendant-appellant relies on the Ohio Supreme Court case of State ex rel. Jackson v. Dallman, supra in which the -12- Supreme Court, when faced with a similar situation, discharged a defendant based upon the lack of evidence of an executed jury trial waiver. In Dallman, the actual written jury trial waiver was never produced for the reviewing court nor was there evidence that the jury waiver was made a part of the record. The defendant also denied ever having executed a waiver of jury trial. The case at bar is factually distinguishable from Dallman. In this instance, defendant-appellant does not dispute that he executed a waiver of jury trial and that the written waiver of jury trial was acknowledged by defendant-appellant in open court before the trial judge prior to the beginning of trial. Accordingly, this court finds that the requirements set forth in R.C. 2945.05 have been satisfied and the trial court properly exercised jurisdiction to try this matter. Defendant-appellant's second and supplemental assignments of error are not well taken. IV. THIRD ASSIGNMENT OF ERROR Defendant-appellant's third assignment of error states: TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO TESTIMONY CONCERNING AN UNCHARGED CRIME OF ROBBERY THAT PREJUDICED THE DEFENSE AND MISLED THE FACT FINDER IN CONCLUDING THAT THE APPELLANT HAD A WEAPON WHILE UNDER A DISABILITY. A. THE ISSUE RAISED: INEFFECTIVE ASSISTANCE OF COUNSEL Defendant-appellant argues that his trial counsel was ineffective. Specifically, defendant-appellant maintains that -13- his trial counsel failed to object to testimony regarding the details of the robbery. It is defendant-appellant's position that the testimony was hearsay and not relevant to the charges being prosecuted. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE OF COUNSEL In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: "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 -14- 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." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141. In order to satisfy a Sixth Amendment claim of ineffective assistance of counsel based on the failure to object at trial, defendant-appellant must demonstrate that the exclusion of the disputed testimony would have altered the outcome of the trial. State v. Saah (1990), 67 Ohio App.3d 86, 97. -15- -16- C. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL Herein, a review of the record fails to disclose that the performance of appellant's defense counsel was seriously flawed and deficient resulting in prejudice to defendant-appellant. The alleged failure of defense counsel to object to testimony concerning the robbery clearly falls within the realm of trial tactics and, absent a showing of prejudice, does not amount to ineffective assistance of counsel. State v. Hunt (1984), 20 Ohio App.3d 310. A review of the relevant portions of the trial transcript demonstrates that defense counsel's failure to object to the robbery testimony did not prejudice defendant-appellant. It is apparent from the record that defendant-appellant's attorney chose not to object to the robbery testimony in an attempt to substantiate defendant-appellant's claim that he was asleep in the automobile at the time of the robbery. Therefore, defendant-appellant was not denied effective assistance of counsel and the third assignment of error is not well taken. V. FOURTH AND FIFTH ASSIGNMENTS OF ERROR Defendant-appellant's fourth assignment of error states: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION FOR HAVING A WEAPON WHILE UNDER A DISABILITY. Defendant-appellant's fifth assignment of error states: THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -17- A. THE ISSUE RAISED: WEIGHT AND SUFFICIENCY OF THE EVIDENCE Defendant-appellant, through his fourth and fifth assignments of error, argues that he was improperly convicted of having a weapon while under disability. Specifically, defendant-appellant argues that the state failed to produce sufficient, substantial and credible evidence at trial to support defendant-appellant's conviction for the offense charged. Defendant-appellant's fourth and fifth assignments of error are not well taken. B. STANDARD OF REVIEW FOR SUFFICIENCY OF EVIDENCE The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St.3d 259, reexamined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence and held that: 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 found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. -18- C. STANDARD OF REVIEW FOR MANIFEST WEIGHT In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. 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, 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. D. DEFENDANT-APPELLANT'S CONVICTION WAS SUFFICIENT AS A MATTER OF LAW AND NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE In the case sub judice, evidence was presented by way of the testimony of the two arresting police officers in an attempt to establish the elements of the offense of having a weapon while -19- under disability. The police officers testified that they observed defendant-appellant cross the street in front of their police car and jump into the passenger door of a waiting automobile. The police officers testified further that they pursued the vehicle under the suspicion that the occupants had just committed a robbery. Once the vehicle came to a stop, the driver and defendant-appellant fled, the police officers observed that a sawed-off shotgun had fallen onto the ground just outside the front passenger door from which defendant-appellant had just exited. Upon application of the standard of review for sufficiency of the evidence as established in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of having a weapon while under disability proved beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307. In addition, defendant- appellant's conviction was supported by substantial credible evidence. Accordingly, defendant-appellant fourth and fifth assignments of error is not well taken. Judgment of the trial court is affirmed. -20- 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. TERRENCE O'DONNELL, J. and DIANE KARPINSKI, J., CONCUR. DAVID T. MATIA PRESIDING 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 .