COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67149 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SHERIDAN R. NESBITT : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 1, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-302165 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender RICHARD WISE, ESQ. ROBERT R. CLARICO, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - KARPINSKI, J.: This appeal arises from a judgment of the Cuyahoga County Court of Common Pleas finding defendant-appellant Sheridan Nesbitt ("appellant") guilty of one count of grand theft in violation of R.C. 2913.03. Appellant now raises two assignments of error which dispute the weight of evidence and appellant's right to effective assistance of counsel. For the following reasons, we affirm. The first witness presented by the state of Ohio was Gregory Grimes, the sales manager for the clearance department of Dillard's. He described the clearance department as basically a self-help area with items of clothing densely packed on circular racks called "rounders." He explained that in a regular department a rounder might hold 60 to 70 articles of clothing, but in the clearance area the rounders are packed with 120 to 130 articles per rounder. He further testified that one could see inside a rounder only if a person were lying on the floor and, further, it would be impossible to reach into the rounder without taking clothes off the rack. The next witness was Officer Rick Veccia, a full-time police officer of Cleveland Heights who also works as a security guard at the Severance Mall Dillard's Store. He testified that on September 5, 1993, he was walking in the clearance area of Dillard's when he heard the sound of a plastic bag crumbling. He did not immediately see anybody but followed the sound and - 3 - eventually found appellant stooped behind a rounder three or four feet from the exit. Officer Veccia further testified that appellant was crouched down with his hand reaching through the clothes and into the rounder. The officer said that appellant was putting a green shirt into the bag and stood up in a startled manner when approached. Appellant was taken to the store security office. The bag was searched and found to contain six suits worth about $800. Appellant could not produce a receipt and was placed under arrest for the theft of the suits. Detective James Gibson, who was assigned to investigate this incident, also testified, recounting his interview of appellant. Appellant denied ownership of the bag. He further claimed that he noticed the bag while he was shopping and was looking in the bag when Officer Veccia approached. A preliminary hearing was held in Cleveland Heights Municipal Court on September 22, 1993. Appellant was charged with one count of grand theft in violation of R.C. 2913.02, with a violence specification for a prior conviction. Appellant stipulated to the validity of the prior conviction. After the close of the state's case, appellant moved for an acquittal pursuant to Crim.R. 29. This motion was denied. The jury found the defendant guilty on the one count of grand theft and the trial judge sentenced him to one and one-half years to five years incarceration. Appellant filed a timely notice of appeal to this court. - 4 - I. Appellant's first assignment of error states: MR. NESBITT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN TRIAL COUNSEL FAILED TO CONDUCT A PRETRIAL INVESTIGATION IN A REASONABLE MANNER. The claim of ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation" and, in addition, that prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus; see, also, Strickland v. Washington (1984), 466 U.S. 668. The burden is on appellant to prove ineffectiveness of counsel; trial counsel is strongly presumed to have rendered adequate assistance. State v. Smith (1985), 17 Ohio St.3d 98. The establishment of prejudice requires proof "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, paragraph three of the syllabus. Appellant argues that his right to effective assistance of counsel was violated when trial counsel failed to obtain a transcript of a preliminary hearing held in Cleveland Heights Municipal Court. The failure to review the transcript, he contends, prevented his trial counsel from being able to cross- examine Officer Veccia adequately at trial. On only three occasions during the trial is the preliminary hearing mentioned: when appellant cross-examined two of the State's witnesses and at - 5 - sentencing. While the Transcript Of Proceedings from Cleveland Heights Municipal Court confirms that a preliminary hearing did take place on September 22, 1993, the transcript of this preliminary hearing was never preserved as part of the record. On cross-examination, Officer Veccia testified that he did not recall that any preliminary hearing took place and that if he had testified at a preliminary hearing, his testimony would have been essentially the same as his testimony at trial (Tr. 59). Also on cross-examination, Detective Gibson did not recall any preliminary hearing regarding this case (Tr. 77). Appellant offered no evidence demonstrating that the testimony at the preliminary hearing was in any way different from the testimony produced at trial. On appeal, a reviewing court is prohibited from adding to the record what was not a part of the trial court's proceedings and then deciding the appeal on the basis of the new matter. Kilbane Plumbing & Heating Inc. v. Wilson Bennett, Inc. (Aug. 18, 1994), Cuyahoga App. 66058, unreported. The record before us is silent as to who testified or what testimony was elicited at this preliminary hearing. Without a transcript of the preliminary hearing, we find it impossible to determine whether the result of the trial would have been different with it. The post-conviction remedy of R.C. 2953.21 provides a distinct procedure by which appellant can present evidence of counsel's ineffectiveness based on evidence which is not contained in the record on direct appeal. State v. Cooperrider - 6 - (1983), 4 Ohio St.3d 226, citing State v. Hester (1976), 45 Ohio St.2d 71. "As long as no direct appeal was taken, or the claim of incompetent counsel was not raised and adjudicated on a direct appeal, res judicata does not bar the adjudication of this issue in postconviction proceedings." State v. Gibson (1980), 69 Ohio App.2d 91, 99 (Krenzler, C.J., concurring). Appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Appellant argues that his conviction is contrary to the manifest weight of the evidence. In reviewing the weight of the evidence, we are guided by State v. Martin (1983), 20 Ohio App.3d 172. 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 [trier of fact] 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. The weight of the evidence and the credibility of witnesses, moreover, are primarily for the trier of fact; a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has - 7 - proved the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Eley (1978), 56 Ohio St.2d 169. In the case sub judice, the jury heard testimony from Officer Veccia indicating appellant was crouched behind a rounder with his hands inside the rounder, one hand holding the plastic bag which contained the suits, the other hand holding a green shirt partially in the bag. Officer Veccia further stated that when he approached appellant, he stood up in a startled manner. The jury was entitled to believe or disbelieve Veccia's testimony. Testimony from an employee of Dillard's indicated that the area in which appellant was apprehended had a limited number of employees on duty and was nearest to the exit. The employee further testified that the interior of the rounder, where appellant claimed to have found the bag of suits, can be seen only if a person is on the floor or takes clothes off the rounder. The record also shows that the bag inside which appellant had his hands contained six suits without any receipt. Based on the evidence before us, we do not find this conviction to be against the manifest weight of the evidence. The jury could reasonably infer that a man reaching into a bag of men's suits while he is crouching behind a dense rack of clothes nearest to the exit was committing a theft. This is not a case where the jury clearly lost its way and created a manifest - 8 - miscarriage of justice. The jury's verdict is not against the manifest weight of the evidence. Appellant's second assignment of error is overruled. Appellant's conviction is affirmed. - 9 - 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. BLACKMON, P.J., and HARPER, 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 .