COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68566 CITY OF LAKEWOOD : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN P. ACORD : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 22, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Lakewood Municipal Court : Case No. 93-C-7442-1/2 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: SEAN F. KELLEHER Prosecuting Attorney City of Lakewood 12650 Detroit Avenue Lakewood, Ohio 44107 For defendant-appellant: DAVID G. PHILLIPS Attorney at Law The Truman Building, #410 1030 Euclid Avenue Cleveland, Ohio 44115 GEORGE K. SIMAKIS Attorney at Law 4186 Pearl Road Cleveland, Ohio 44109 TIMOTHY E. McMONAGLE, J.: Defendant-appellant John P. Acord appeals from his conviction in the Lakewood Municipal Court for driving under the influence, fleeing from the police and driving under suspension. Appellant raises four assignments of error for our review. For the reasons stated below, we affirm. Defendant John P. Acord was charged on August 8, 1993 by the plaintiff-appellee, City of Lakewood, with driving under the influence, in violation of Lakewood Cod. Ord. 333.01(A), and willfully fleeing, in violation of Lakewood Cod. Ord. 525.095. Defendant was released from custody upon posting bond. Defendant failed to appear at trial on August 17, 1993 and failed to appear at the reset trial date of August 24, 1993 despite a summons having been sent to him. A contempt of court bench warrant was issued by the court for the defendant's failure to appear. Unrelated to the charges in the matter sub judice, on Decem- ber 15, 1993, defendant was sentenced in Cleveland Municipal Court on his seventh DUI violation and served about ten months in the Warrensville, Ohio Correctional Farm. A "hold" was placed on defendant on December 16, 1993 based upon Lakewood's contempt of court bench warrant. - 3 - On October 5, 1994, upon his release from the Warrensville Correctional Farm, the bench warrant for the contempt of court hold was executed, and the defendant was immediately placed in the custody of the City of Lakewood. On October 12, 1994, the defendant filed a request for dis- covery pursuant to Ohio Crim.R. 16. At the pretrial on October 12, 1994, in response to the defendant's request for discovery, the prosecutor made his file available, and it was reviewed by counsel for the defendant. On December 1, 1994, Attorney David Phillips filed a notice of appearance, and defendant filed a motion to compel discovery and a motion for discharge due to violation of speedy trial statute based upon R.C. 2945.71. On December 2, 1994, at the final pretrial, the trial court denied both the defendant's motion to compel and the motion for discharge. At that same pretrial on December 2, 1994, the City of Lakewood brought an additional charge against defendant for driving under suspension on August 8, 1993, in violation of Lakewood Cod. Ord. 335.07. This charge was consolidated with the other charges at the final pretrial. The defendant pled not guilty to each of the charges. Trial was set for December 7, 1994. On December 5, 1994, the defendant filed a withdrawal of jury demand. On December 6, 1994, the defendant filed a supplemental motion to discharge pursuant to R.C. 2941.401, a discovery request and a request for bill of particulars on the new charge based on Lakewood Cod. Ord. 335.07, and a renewal of the defendant's motion - 4 - to compel and for sanctions. The trial court determined that plaintiff City of Lakewood had complied with discovery and denied the defendant's motions. After the court denied the defendant's motions, the defendant changed his plea from not guilty to no contest. The trial was held December 7, 1994. Pursuant to the defendant's plea of no contest, the prosecutor presented the factual basis for the charges against the defendant to the court. After the presentation of the circumstances, the trial court found the defendant guilty. The defendant was sentenced by the trial court on January 24, 1995. On February 10, 1995, defendant John P. Acord timely filed his Notice of Appeal and Application for Stay Pending Appeal. The application for stay was granted by the trial court on February 13, 1995. In support of his appeal, appellant Acord presents four assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR DISCHARGE DUE TO VIO- LATION OF SPEEDY TRIAL TIME. Appellant contends that the charges brought against him in the summons issued on August 8, 1993 and the additional charge brought against him in the summons issued on December 2, 1994 were subject to discharge under R.C. 2941.401. R.C. 2941.401 provides as follows: - 5 - When a person has entered upon a term of im- prisonment in a penal or correctional insti- tution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indict- ment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he caused to be delivered to the prosecution attorney and the appropriate court in which the matter is pending written notice of his imprisonment and a request for a final disposition to be made on the matter *** In addition, the statute places a responsibility upon the institution as follows: The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right to request a final disposition of those charges. Id. The record in the within matter reveals that the appellant was imprisoned by the State of Ohio from December 15, 1993 until October 5, 1994 on an unrelated matter. The record further indi- cates that a "hold" was place upon appellant on December 16, 1993. During his incarceration, appellant did not request to be brought to trial on the charges pending against him in the City of Lake- wood as required by the statute herein. Appellant contends that the requirement of the statute that the warden or superintendent having custody notify him of the charges concerning which the superintendent has knowledge and to notify the prisoner of his right to request a final disposition of those charges precedes the - 6 - requirement that the prisoner request a final disposition of those charges. Appellant contends that his failure to request to be brought to trial was as a result of the failure of the warden or superintendent to notify him of his right to request a demand for speedy disposition. Appellant relies on the decision in the case of State v. Fitch (1987), 37 Ohio App.3d 159, where the court determined that the state has a duty to advise a defendant of his right to make a request for final disposition thereof. The facts in Fitch indi- cate that while defendant Fitch was in the Lebanon Correctional Institute, he was indicted by the Coshocton Grand Jury. A warrant for his arrest was sent to the Lebanon Correctional Institute, and receipt was acknowledged by the institution on November 21, 1984. The Fitch court determined that upon the evidence presented, the state was not capable of proving that the defendant was actually notified of this indictment at any time prior to March 1, 1985. "Although [defendant Fitch] did receive a copy of a letter wherein the institution in which he was incarcerated acknowledged receipt of a letter from the Coshocton County Sheriff's Department stating that he would be taken into custody upon his release, the record is clear that appellant did not receive notice of his specific right under R.C. 2941.401 to make a request for final disposition of the pending indictment." Id. at 162. The Fitch court determined that "(a)bsent such specific advice, the state cannot rely upon the prisoner's failure to make demand for speedy disposition but must - 7 - count the time as having commenced upon the first triggering of the state's duty to give notice of the right to make demand for speedy disposition." Id. at 162. Appellant, here, contends that following the reasoning given by the court in Fitch, the speedy trial time would have lapsed on June 14, 1994 and appellant would have been entitled to a discharge of the complaints against him. The court in Fitch reasoned that the "state legislature, in its wisdom, has elected to obligate the state to notify the accused of his right to make a demand for speedy disposition of pending indictments as well as the fact of such indictments. It would nullify the entire purpose of the statute if failure to give notice of the right would operate to relieve the state of its legal burden to try cases within rule." Id. at 162. Speedy trial statutes must be strictly construed against the state. State v. Gray (1964), 1 Ohio St.2d 21. R.C. 2941.401 is part of the speedy trial statutes and must be read together with R.C. 2945.71-2945.73 to understand the requirements. State v. Floyd (Oct. 25, 1979), Cuyahoga App. No. 39929, unreported, at 4. As our court stated in Floyd, "The state is prohibited from engag- ing in practices which undercut the intent and purposes of the speedy trial statutes. State v. Lee (1976), 48 Ohio St.2d 208, 209; State v. Pudlock (1975), 44 Ohio St.2d 104, 106; State v. Reeser (Aug. 2, 1979), Cuyahoga App. No. 38802, unreported, slip op. at 3-4." Id. at 5. Appellant relies on Floyd, wherein the court held that "the state cannot avoid the requirements of - 8 - 2941.401 by neglecting or refusing to send a copy of the indict- ment to the warden of the accused 's institution of incarcera- tion." Id. at 5. In Floyd, the court determined that the state failed to meet its burden under R.C. 2941.401 by failing to exer- cise "reasonable diligence" to discover whether the indictee was imprisoned within the state. Appellant further relies on the case of State v. Davis (Apr. 30, 1987), Cuyahoga App. No. 52030, unreported. In Davis, the appellee had appeared at his preliminary hearing but had no idea that he had been indicted a month later because he was sentenced, in an unrelated case, to the Mansfield Reformatory in the mean- time. The sheriff's department attempted to serve Davis at his last known address and found that he no longer resided there. No further attempt was made by the state to locate him. The court found that under those facts, the state failed to exercise reason- able diligence to discover whether Davis were incarcerated in the state and concluded that "the state, through its negligence, denied appellee his speedy trial rights under section 2941.401 and 2945.71-2945.73." Davis at 3. Appellant's reliance on Floyd, Fitch and Davis is misplaced. Each of the cases upon which the appellant relies is distinguish- able from appellant's own circumstance in that the incarcerated defendant in each of these cases was unable to assert his 2941.401 speedy trial rights because of lack of knowledge of the pending in- dictment against him as a result of the actions of the state. - 9 - Fitch may be distinguished from the matter at hand in that the indictment in Fitch came after Fitch was incarcerated, and it is clear that the institution had actual notice of the charges against him. Fitch, himself, had not done anything to prevent a speedy trial in his case. In Floyd, the actions of the state prevented the defendant Floyd from the opportunity of a speedy trial by depriving him of the knowledge of the indictment against him. Davis may be distinguished from the case at hand because the prisoner in Davis had no knowledge of the indictment against him because of the negligence of the state. Clearly Fitch, Floyd and Davis were unable to request a speedy resolution of the outstand- ing matters against them where they were unaware of the pending indictments and they had done nothing to prevent the state from properly proceeding against them. In each of the cases upon which the appellant relies, it was the action of the state which prevented the defendant from having the appropriate information about his pending indictment and which prevented him from exercising his R.C. 2941.401 right pursuant to the statute, thereby thwarting the statutory purpose and objec- tive, which is "to prevent inexcusable delays caused by indolence within the judicial system." State v. Ladd (1978), 56 Ohio St.2d 197, at 200. Such is not the case before us. The record in the case sub judice indicates that the appellant was aware of the case against him in the City of Lakewood. Appellant signed each of the cita- - 10 - tions against him, which indicated the time and date of the timely- set trial. The appellant signed his bond, which indicated the time and date of the trial. The record reflects that the sole reason that the appellant was not brought to trial in a timely manner by the City of Lakewood was the appellant's failure to appear for the scheduled trial first set on August 17, 1993 and his failure to appear for the trial reset again on August 24, 1993. The City of Lakewood twice set trial well within the requisite period, as determined by statute R.C. 2945.71. Twice, the appellant, who was not incarcerated at that time, failed to appear. The case of State v. Terrell (1990), WL 197938, Mahoning App. No. 90 CA 44, unreported, is similar to the case sub judice. In Terrell, the court determined where the prisoner had knowledge of the indictment pending against him, pursuant to the statute he "was required to deliver to the prosecuting attorney and the appropriate court *** written notice of his place of imprisonment and a Request for Final Disposition." Id. at 2. In Terrell, the court distinguished the case of State v. Fitch, supra, by finding "a material difference in the facts between the Fitch case and the case at hand. In the Fitch case, the warden or superintendent, having custody of the appellant, knew about the pending indictment against the appellant. In the case at hand, there is no evidence that the warden or superintendent having custody of the appellant had any knowledge of the untried indictment against the appellant other than for the entry filed by the trial judge, on December 7, - 11 - 1989, commanding the removal of the appellant from the Warren Correctional Institution. We find that the holding in Fitch is totally inapplicable to the case at hand. We further hold that, pursuant to R.C. 2941.401, this appellant, being fully aware of the indictment pending against him, was required to deliver to the prosecuting attorney and the appropriate court in Mahoning County written notice of the place of his imprisonment and a request for final disposition." Id. at 2. Despite the appellant's contentions to the contrary, as in Terrell, the record before us lacks evidence that the warden of the Warrensville Correctional Farm had actual knowledge of the untried complaints. The unrebutted affidavit of the appellant indicates only that the warden was aware of a "hold" on the appellant. Following the reasoning of the Terrell court, where, as here, the prisoner had knowledge of a pending indictment but where it was not shown that the warden had actual knowledge of the pending untried complaint, the warden's duty under R.C. 2941.401 to inform the appellant of a right to request final disposition does not apply. State v. Terrell, supra. Pursuant to the statutory mandate, a defendant is required to give the requisite notice. Where a defendant fails to give requisite notice, the statute does not apply. State v. Turner (Medina Co. 1982), 4 Ohio App.3d 305. We therefore hold that under circumstances, as here, where a prisoner is aware of the pending - 12 - indictment against him and he fails to give the requisite notice, the statutory provisions of R.C. 2941.401 do not apply. In order to determine whether a prisoner has been denied his right to a speedy trial, we are required to review the surrounding circumstances. In State v. Stapleton (1975), 41 Ohio App.2d 219, citing State, ex rel Hodges v. Coller (1969), 19 Ohio St.2d 164, the supreme court said, "The question is whether under the circum- stances of this case he has been denied a speedy trial. The fact that he was in jail in another county for trial on a different charge does not affect his right to a speedy trial on this charge. 'The right to a speedy trial is often said to be a relative one to be judged by all the surrounding circumstances.' Modern Constitu- tional Law, Antieau, 336, Section 5:50." Id. at 224. A review of the circumstances in the matter before us, then, is appropriate for the determination of the appellant's speedy trial rights. The time limits for offenses are delineated in R.C. 2945.71. The time limits established in R.C. 2945.71 can be extended by the circumstances of R.C. 2945.72, which provides in pertinent part that "the time for trial may be extended by *** (D) any period of delay occasioned by the neglect or improper act of the accused." We find the court's reasoning in the case of State v. Bauer (1980), 61 Ohio St.2d 83, to be instructive as to whether the appellant's speedy trial rights were violated. In Bauer, our supreme court determined where the appellant (State of Ohio) was - 13 - ready to proceed with appellee Bauer's trial, but appellee Bauer failed to appear, the appellant State of Ohio had satisfied its statutory duty to prosecute the appellee. Id. at 84. We determine here that, as in Bauer, the appellant "was afforded his statutory right to a speedy trial initially but through his own design he chose to shun this right and impede the proper administration of this cause." State v. Bauer, supra at 84. The Bauer court rejected the argument of the accused that pursuant to the statutory mandate of R.C. 2945.72(D), his failure to appear should have merely "extended" the period of time within which he should be brought to trial. The court went on to state, "We find this solution unworkable and inconsistent with efficient administration of justice," and further held, "[i]t is our conclu- sion that a defendant who fails to appear at a scheduled trial, and whose trial must therefore be rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71 through 2945.73 for that period of time which elapses from his initial arrest to the date he is subsequently rearrested." Id. at 85. A review of the totality of the circumstances in this matter reveals that the appellant would have been brought to trial on a timely basis but for his failure to appear for trial on two sepa- rate occasions and that although he was later incarcerated on a different charge, he was well aware of the pending complaint against him and the source of that complaint but failed to assert - 14 - his speedy trial right by giving notice to the warden or superin- tendent for the prosecuting attorney and the appropriate court. Delay in bringing this appellant to trial was caused by both the "neglect" and "improper act of the accused," which tolls time for speedy trial. In discussing the constitutional provisions of the right to a speedy trial, the court in Partsch v. Haskins (1963) 175 Ohio St. 139, 140, stated, "The purpose of Section 10, Article I is to provide a trial for an accused without undue delay with its attendant anxieties and the possibility that the defense might be prejudiced by the lapse of time. However, it was not intended as a shield to the guilty, the protection of which might be invoked by sitting silently back and allowing the prosecution to believe that the accused is acquiescing in the delay. It is a right which must be claimed or it will be held to have been waived." Id. at 140. In such a situation where time was tolled by the action of the defendant without some affirmative action on his part, where he makes no demand, he can show no prejudice. State v. Scolaro (1992), 73 Ohio App.3d 555, at 557. "An accused may waive his right to a speedy trial not only by inaction in failing to claim his right thereto but also by taking some affirmative step in the proceedings which would be inconsistent with the claim that he did not waive his right to a speedy trial." Partsch v. Haskins, supra, at 140. In this case, appellant did both. Where the appellant was aware of an outstanding indictment against him while he was incarcerated and failed to give the - 15 - requisite notice through no negligent act of the state, we find that R.C. 2941.401 does not apply. Where, pursuant to R.C. 2945.72(D), appellant's speedy trial time was tolled by his own "neglect or improper act" by twice failing to appear at the timely scheduled trials, and where the appellant failed to make some demand upon the state to bring him to trial, the appellant's right to speedy trial pursuant to R.C. 2945.71 has not been abridged. We find that, following the reasoning of the Bauer court, the speedy trial time for the appellant herein began to run upon his rearrest on the charges before the Lakewood Municipal Court on October 5, 1994. The City of Lakewood was required to bring the appellant to trial within ninety days of his rearrest on the charges. The record reflects that the defendant was brought to trial on December 7, 1994, within the statutory requirements. Therefore, we find that the charges of driving under the influence and willfully fleeing are not subject to discharge pursuant to statute. Appellant argues that the charge brought against him on December 2, 1994 for driving under suspension should be dismissed because the same speedy trial time computation applies to this charge as to the original charges brought on August 8, 1993. Appellant relies on State v. Adams (1989), 43 Ohio St.3d 67, 68, which states, "[w]here new and additional charges arise from the same facts as did the original charge and the facts are known to the prosecution at the time of the initial complaint, the same - 16 - speedy trial time computation applies to the new charges as is applied to the original." We agree that the same speedy trial limitations apply to the complaint of December 2, 1994 against appellant for driving under suspension but that, based on our reasons stated above, such com- plaint is not subject to discharge. Appellant's first assignment of error is not well taken, and the decision of the trial court denying the appellant's motion for discharge due to violation of speedy trial time is affirmed. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF VIOLATING LAKEWOOD COD. ORD. 335.07 AFTER HIS NO CONTEST PLEA WHERE APPELLEE FAILED TO PRESENT AN EXPLANATION SUPPORTING THE ESSENTIAL ELEMENTS OF THE OFFENSE. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF VIOLATING LAKEWOOD COD. ORD. 333.01(A) AFTER HIS NO CONTEST PLEA WHERE APPELLEE FAILED TO PRESENT AN EXPLANATION SUPPORTING THE ESSENTIAL ELEMENTS OF THE OFFENSE. Appellant argues that following his plea of no contest, the appellee failed to provide the essential elements of the offenses as charged in the explanation of the circumstances presented by the prosecutor. We do not agree. R.C. 2937.07 governs actions on pleas of no contest in misde- meanor cases. Chagrin Falls v. Katelanos (Cuyahoga Co. 1988), 54 Ohio App.3d 157, 159. R.C. 2937.07 requires that "the record must - 17 - show that the required explanation included a statement of facts which supports all the essential elements of the offense." Katelanos, at 159, citing Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148. The essential elements of Lakewood Cod. Ord 335.07 are: DRIVING UNDER SUSPENSION OR REVOCATION OR IN VIOLATION OF LICENSE RESTRICTIONS. (a) No person, whose driver's or commercial driver's license or permit or nonresident's operating privilege has been suspended or revoked pursuant to Ohio R.C. Chapter 4509, shall operate any motor vehicle within this Municipality or knowingly permit any motor vehicle owned by him or her to be operated by another person in the Municipality, during the period of the suspension or revocation except as specifically authorized by Ohio R.C. Chapter 4509. The record reflects that the prosecution read the statement from Patrolman Kirkwood's report, which stated, "Upon checking the defendant it was learned that he was also under suspension for implied consent." The record shows that appellant was booked for "DUS," the common abbreviation for driving under suspension. The recitation of facts before the trial court indicates that "upon checking the defendant it was learned that he was also under suspension for implied consent." The record clearly reflects that appellant was driving a vehicle upon the public highways of Lakewood, Ohio while his operator's license was under suspension for refusing the bodily substance test impliedly consented to by all motorists operating in Ohio. The statement of facts presented by the prosecutor to the court was sufficient to support the - 18 - essential elements of the offense of driving under suspension, Lakewood Cod. Ord. 335.07. We therefore find appellant's second assignment of error not well taken. Appellant next contends that the appellee failed to present an explanation supporting the essential elements of the offense charged against him for driving under the influence as defined in Lakewood Cod. Ord. 333.01. Lakewood Cod. Ord. 333.01, Driving or Physical Control While Under the Influence; Evidence, provides in pertinent part: (a) Driving Under Influence. No person shall operate any vehicle within the Municipality if any of the following applies: (1) The person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse; (2) The person has a concentration of ten- hundredths of one percent or more by weight of alcohol in his or her blood; (3) The person has a concentration of ten- hundredths of one gram or more by weight of alcohol per 210 liters of has or her breath; or (4) The person has a concentration of fourteen-hundredths of one gram or more by weight of alcohol per 100 milliliters of his or her urine. In support of its charge that appellant violated Lakewood Cod. Ord. 333.01(A), Driving Under the Influence, the record reflects that the appellee provided a factual basis for the charge through a recitation of the police report by the prosecuting attorney. The recitation of facts included the account of the erratic driving by - 19 - the appellant, the appellant's inability to follow a horizontal gaze nystagmus test, the strong odor of alcohol about his person, the fact that the appellant's eyes were both bloodshot and glassy, and the fact that the appellant's speech was slurred. Appellant took an intoxilizer test, and the result was .201 BAC. Appellant contends that the facts as presented to the court are insufficient to support a finding of guilt on the charge of driving under the influence where the facts given do not explain the terminology used. Appellant relies on the decision in State v. Phillips (Columbiana Co. 1993), 97 Ohio App.3d 1. We find appellant's reliance misplaced. In the case of State v. Phillips, the evidence to which the defendant objected was evidence which was placed before a jury. The court reasoned in that decision that the breath test should have been ruled inadmissible, that proper foundational require- ments were not established and that no evidence was presented as to the test's meaning. "The prejudicial effect of the introduction of the test results dictates that appellant's conviction be reversed." Id. at 4. The situation in the matter before us is distinguishable from that in Phillips. The Phillips case involved a jury trial in which the defendant had pled not guilty. The obligation was on the state to present evidence proving Phillips guilty beyond a reasonable doubt. The jurors needed to know the meaning of the evidentiary numbers placed before them in order to make a decision. In this - 20 - case, there is no potentially prejudicial effect upon the proceedings due to a lack of explanation of the characterization of the appellant's blood alcohol content as a percentage by weight where, pursuant to a plea of no contest, the appellant has admitted to the facts. Therefore, an admitted fact in this case was that "the BAC was .201." The numeric indication of a blood alcohol content of .201 as a result of an intoxilizer test places the appellant's blood alcohol content above the statutory threshold as an admitted fact. The court could come to no other conclusion than to find the appellant in violation of Lakewood Cod. Ord. 333.01(A). We find that the explanation of the circumstances provided by the prosecutor to the court sufficiently supported the essential elements of each of the two charges challenged by this appeal, to- wit, driving while under the influence and driving under suspen- sion, to satisfy the statutory requirement of R.C. 2937.07. Appellant's second and third assignments of error are not well taken, and the decision of the trial court is affirmed. ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN DENYING HIS MOTION TO COMPEL DISCOVERY. Appellant contends in his fourth assignment of error that as a result of the trial court's denial of both of his motions to compel, the appellee failed to provide information which was necessary to prepare his defense. - 21 - The record indicates that the written request for discovery was served upon the prosecuting attorney on October 12, 1994. The record further reflects that pursuant to that discovery request, the prosecutor made available to appellant's counsel the prosecu- tor's entire file on that same day. No further action was taken by appellant's counsel regarding additional discovery until December 1, 1994, when appellant filed his first motion to compel. The record reflects that appellant's counsel was unable to identify any document which the prosecutor's office failed to provide. Despite appellant's contention that he was prejudiced by the failure of the court to grant his motions to compel, the record reflects that the trial judge determined that the prosecutor complied with Crim.R. 16 by providing discovery to counsel on October 12, 1994. Appellant relies on the review of Crim.R. 16 by the supreme court in State, ex rel Steckman v. Jackson (1994), 70 Ohio St.3d 420, for the proposition that the Criminal Discovery Rule "*** should be construed so as to effectuate the presumption in favor of discovery," and we agree. In this instance, however, appellant has presented no evidence to us that he was denied the information which he sought in his motions to compel. The trial court ruled that the appellee complied with the discovery requirement pursuant to Crim.R. 16 and, without a showing that the appellant was denied discovery, we cannot say that the denial of the motions to compel discovery was prejudicial to the appellant. - 22 - Appellant's fourth assignment of error is not well taken, and the decision of the trial court is affirmed. - 23 - 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 Lakewood Municipal 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. SARA J. HARPER, P.J. and DIANE KARPINSKI, 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, .