COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68130 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION EDWIN THOMAS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION APRIL 4, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-304917 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue SCOTT G. SALISBURY, Asst. Cleveland, Ohio 44103 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Edwin Thomas appeals from his convictions following a jury trial for felonious assault (R.C. 2903.11) and aggravated burglary (R.C. 2911.11) in the Common Pleas Court. Defendant claims the trial court erred in permitting impeachment of defendant's alibi and testimony on defendant's failure to advise the investigating officer of same. Defendant also argues there was insufficient evidence to sustain the convictions which were against the manifest weight of the evidence. We find no error and affirm. This case arose out of the vicious beating of Theodore Dengate in his boarding house room on October 18, 1993 in Bedford, Ohio. Dengate had previously lived there with Laurie Perek for a few months. Ms. Perek moved out sometime in late September or early October 1993. She came back to the room to obtain some property which she claimed Dengate owed her. An argument and shoving match took place and Dengate's shirt was ripped. Ms. Perek went to the police and filed a report. Dengate also made a statement to the police. Their dispute was never prosecuted. These facts were corroborated by both Dengate's and Ms. Perek's testimony at trial. During the time that the victim and Ms. Perek dated, Dengate met the defendant on several occasions. Defendant was a friend and ex-lover of Perek's. All three went to a few parties together and spent a weekend together at a camper owned by Ms. Perek's father. On October 18, 1993, at approximately 5:00 or 5:30 a.m., Dengate testified that defendant broke down his door and - 3 - subsequently beat him about his head and body. As a result of this beating, Dengate suffered a concussion and numerous scrapes, cuts and bruises to the face and body necessitating hospital treatment. On October 19, 1993, Dengate returned to the hospital because of internal bleeding, and was placed in the Intensive Care Unit for two days. Although the assault occurred in the early morning when it was still dark, Dengate testified he was positive that defendant was his assailant. He was sure because he saw defendant on top of him, face to face, during the beating; he recognized his voice; and he saw defendant walking off his "fairly lit" porch after the attack. He claimed his porch was "fairly lit" due to the parking lot lights and well lighted road in front of his apartment. Defendant kept repeating during the beating, "You f----- up this time." This enabled Dengate to recognize defendant's voice and caused the victim to think he was being beaten up because of his recent altercation with Ms. Perek. John Picone, a next door neighbor of Dengate's, testified that on October 18, 1993, he heard the victim's door being kicked in at 5:30 a.m., and a male voice saying "You f----- up, didn't you." He then heard another voice in a hushed tone say, "Let's go." Picone did not see the assailant's face, and could not identify anyone. He called the police to the scene. Ms. Perek also testified to her prior relationship with Dengate; the break-up; the altercation over removing items from - 4 - Dengate's apartment; and her police report regarding the dispute. Ms. Perek told the defendant about Dengate assaulting her and about the case being dropped. She admitted defendant became upset when he learned of her fight with Dengate. She further stated that defendant was her good friend and ex-lover. However, she denied being with defendant on the night prior to the break-in and assault. Bedford Detective Artl testified to his experience and his assignment to take a statement from the victim. Dengate told the detective the name of his assailant was Ed. Although he did not know Ed's last name, he told the detective that Ed was a good friend of Ms. Perek's and the three of them had been out together several times and had spent a weekend together at the Islands. Detective Artl followed up with Ms. Perek and asked her who her friend Ed was. She said the only Ed she knew was an Ed Sobol. Detective Artl showed Ed Sobol's picture to Dengate but he said that Sobol was not his assailant. Again, the detective called Ms. Perek and tried to find out the last name of Ed, but was unable to get a truthful answer. After more background investigation, the detective was able to get a last name and a picture of defendant, which the victim immediately identified as his assailant. Detective Artl admitted that defendant turned himself in after he was told a warrant was issued for his arrest and cooperated in the investigation. - 5 - The defense presented defendant's ex-wife, Shelly Thomas, who testified that defendant was at her house during the time of the attack. Defendant also testified that he was at his ex-wife's house during the attack and that he did not break into Dengate's house or beat him up. A timely appeal ensued from the judgment below. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE STATE WAS PERMITTED, OVER OBJECTION, TO IMPEACH THE APPELLANT ON THE FACT THAT HE DID NOT PROVIDE HIS ALIBI TO THE POLICE AFTER HIS ARREST IN VIOLATION OF DOYLE V. OHIO. II. IT WAS PLAIN ERROR FOR THE STATE TO ELICIT FROM THE ARRESTING OFFICER THE FACT THAT THE APPELLANT MADE NO STATEMENT AFTER HIS ARREST AND THUS THE APPELLANT'S RIGHT TO SILENCE AND DUE PROCESS WAS VIOLATED. Both of these assignments of error rest on defendant's privilege against self incrimination contained in the United States and Ohio Constitutions and will be considered together. Defendant argues that at two points during the trial the State improperly made reference to his post-arrest silence. In support of his alibi defense, defendant presented his ex- wife's and his own testimony that he was at her house overnight at the time of the alleged assault. During the cross-examination of defendant, the State asked the following questions: Q. So it's safe to say sometime in early December of 1993 that you knew for sure between yourself and your ex-wife that you had spent the night out there? - 6 - A. Yes, sir. Q. And when you found out, did you tell Det. Artl? Mr. McGinty: Objection, your honor. The Court: Overruled. He may answer. A. Did I, I don't believe so. I can't say for certain. (Tr. 254-55). Defendant argues that by allowing the prosecutor to impeach him by calling attention to his failure to tell the police about his alibi there has been a violation of Doyle v. Ohio (1976), 426 U.S. 610 and its progeny. In Doyle the defendant was cross- examined by the prosecutor concerning why he did not tell the officers about his alibi at the time of his arrest. The U.S. Supreme Court held: The warnings mandated by that case [Miranda decision], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. * * * We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. - 7 - Id. at 617, 619. Doyle was later analyzed by the Supreme Court in Fletcher v. Weir (1982), 455 U.S. 603. In Fletcher, the record presented no affirmative evidence that the defendant received a Miranda warning. The Court held: The significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest. The majority of the Court of Appeals recognized the difference, but sought to extend Doyle to cover Weir's situation by stating that "[w]e think an arrest, by itself is a governmental action which implicitly induces a defendant to remain silent." 658 F.2d, at 1131. We think that this broadening of Doyle is unsupported by the reasoning of that case and contrary to our post-Doyle decisions. * * * In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. Id. at 606. See, also, State v. Ospina (1992), 81 Ohio App.3d 644, 650 ("[I]t is clear that the actual administration of Miranda warnings, rather than the arrest and custodial interrogation, triggers the constitutional protection of Doyle"); State v. Sabbah (1982), 13 Ohio App.3d 124, 129 ("The correct analysis focused not upon muddled notions of 'pre'-arrest versus 'post'-arrest silence, but rather upon whether a criminal defendant's silence occurred before or after his receipt of the Miranda warnings"). - 8 - In the case herein, we likewise find no error in the prosecution cross-examining the defendant on his failure to give the officers an alibi. As in Fletcher v. Weir, the record does not affirmatively show that the defendant received Miranda warnings during the period in which he remained silent or at any time for that matter, and defendant also chose to take the stand to testify. The defendant also argues that the prosecution during its case-in-chief questioned the detective whether defendant gave a statement, and that this also was in contravention of Doyle. The question at trial was as follows: Q. Okay. When you arrested him, did he make any statements to you? A. No, sir. We find no error with this questioning for several reasons. First, we note that no objection was made to this question. An appellate court need not consider an error which a party complaining of the trial court's judgment could have called to the trial court's attention at the time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of syllabus. See, also, State v. Day (1991), 72 Ohio App.3d 82, 89 (failure to object to question regarding post-arrest silence waived any error). Secondly, under our analysis above, no Doyle violation occurs when there is no evidence that Miranda warnings were given. There is no evidence that the defendant's failure to give the detective a statement was due to his exercising his Miranda right to silence. - 9 - Thirdly, even if the Miranda warnings were given or the error was not waived by failure to object, there is no prejudice. As the court in State v. Rowe (1993), 92 Ohio App.3d 652, 670 held: The admission of testimony by a police officer regarding an accused's post-arrest silence constitutes reversible error when "it is not clear beyond a reasonable doubt that absent this statement of the officer no juror could have entertained a reasonable doubt as to defendant's guilt." State v. Motley (1985), 21 Ohio App.3d 240, 242, 21 OBR 256, 258-259, 486 N.E.2d 1259, 1262. *** In other words, if without this statement any juror could still have a reasonable doubt as to appellant's guilt, so that the statement may be said to have made the difference between appellant's conviction and acquittal, the admission of the statement resulted in prejudice to appellant and would require reversal. In the case herein, we cannot say this disclosure affected the outcome of the trial. Especially, since the defendant testified that he did not recall that he had spent the night of the incident at his ex-wife's house until a couple of weeks after the arrest. This would explain why he did not offer the alibi at the time of the arrest. We find the outcome of the trial would have been the same with or without the question regarding his post-arrest silence. Assignments of Error I and II are overruled. - 10 - III. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION FOR AGGRAVATED BURGLARY AND FELONIOUS ASSAULT. IV. THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted 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.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. - 11 - When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. In looking at these facts in the light most favorable to the prosecution, there was a positive identification of defendant by the victim who testified that defendant broke into his room and beat him up. He knew defendant from previous social occasions. He heard his voice and recognized his face. The State showed defendant had a motive for this crime. As the good friend and ex- lover of Ms. Perek, whom the victim had assaulted prior to this attack, defendant set out to revenge Ms. Perek's assault. If all this evidence was believed by the jury, which was their prerogative, there was sufficient evidence to support the felonious - 12 - assault and aggravated burglary convictions beyond a reasonable doubt. The same considerations also make it clear that the jury's verdicts were not against the manifest weight of the evidence. Assignments of error III and IV are overruled. Judgment affirmed. - 13 - 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 Court of Common Pleas 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 TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .