COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69433 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION THEODORE W. JACKSON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-317655 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Edward O. Patton Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John P. Parker 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- NAHRA, J.: Appellant, Theodore Jackson, is appealing his conviction for aggravated robbery, R.C. 2911.01, with violence and firearm specifications, and having a weapon while under a disability, R.C. 2923.13. He contends the trial court erred in failing to suppress two statements which appellant made to the police. For the following reasons, we affirm. At the suppression hearing, Detective Seitz testified that appellant was arrested at his home, pursuant to an arrest warrant, around 9:00 a.m. Upon arrest, appellant was read his constitutional rights. No questioning took place at the time of arrest. The police transported appellant downtown to the Youth Gang Unit. Around 12:30 p.m., Seitz and Detective Benning read appellant his Miranda rights, as written on the criminal statement form. Appellant said if the police gave him a cigarette, he would think about making a statement. Seitz gave appellant a cigarette. After a few minutes, appellant said he would tell the police everything. The detectives typed up appellant's answers to certain questions on the statement form. Appellant answered that he robbed the TransOhio Bank at 7050 Broadway on September 10, 1994, and used a gun in the robbery. The gun could be found at Berdell's house. Appellant read the statement over and signed it. Appellant also wrote a note to Berdell, telling Berdell to turn the gun over to the police. -3- No threats or promises were made to appellant. Appellant never asked for an attorney. Appellant did not appear intoxicated. Appellant testified that the police arrested him at 6 a.m.. Appellant was "messed up" from drinking and smoking marijuana laced with PCP. Upon arrest, the police started asking him questions. Appellant replied that he wanted to talk to a lawyer. Appellant did not recall whether he was read his rights. When appellant arrived at the Youth Gang Unit, he was still messed up. A Puerto Rican officer, who was the head of the Gang Unit, beat appellant for thirty minutes. Then, Officers Seitz and Benning came into the room, and asked him if he had a confession. Appellant said he wanted a lawyer. Officer Benning threatened to put appellant back with the officer who beat him. Appellant was scared, so he signed the statement form, which was blank and did not have the typewritten questions and answers on it. Appellant was never read his rights during the interrogation. Officer Edgar Carabello testified that he is the only officer of Hispanic descent in the Youth Gang Unit. Carabello was in the Unit when appellant was brought in for questioning. Carabello left after a few minutes, and did not witness the interrogation. Neither Carabello nor any one else beat appellant. Appellant moved to suppress the signed confession and the handwritten note to Berdell. Appellant also objected to the handwritten note, because the prosecutor had not produced the note pursuant to appellant's discovery request. The prosector stated he had just received the note the day before. -4- The trial judge never stated on the record whether the motion to suppress was granted or denied, because it was indicated to the judge that appellant wished to plead guilty. Then, appellant changed his plea from guilty to no contest. The court accepted the no contest plea to all the charges in the indictment. We will first address the state's motion to dismiss this appeal. The state contends that appellant is not appealing a final appealable order, because no determination on the motion to suppress appears on the record. R.C. 2505.02. If the trial court fails to rule on a motion, the motion will be considered denied. Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 389, Newman v. Al Castrucci Ford Sales, Inc. (1988), 54 Ohio App.3d 166, 169, Solon v. Solon City Baptist Temple, Inc. (1982), 8 Ohio App.3d 347. The presumption that an outstanding motion was denied has been applied in criminal cases. State v. Linder (Nov. 23, 1994), Cuyahoga App. No. 66549, unreported, State v. Van Kennedy (Oct. 2, 1995), Athens App. No. 95CA1657, unreported, State v. Parham (Jan. 14, 1993), Cuyahoga App. No. 61349, unreported, juris. motion ovrld. at 67 Ohio St.3d 1421. In this case, we will presume the trial court denied appellant's motion to suppress. Appellee's motion to dismiss the appeal is denied. I. Appellant's first assignment of error states: THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION TO SUPPRESS HIS TWO STATEMENTS IN VIOLATION OF THE FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE -5- U.S. CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, MICHIGAN V. MOSLEY (1975), 423 U.S. 96; DUCKWORTH V. EAGAN (1989), 109 S. CT. 2875; STATE V. PARKER (1975), 44 OHIO ST.2D 172; AND STATE V. BATES (1976), 48 OHIO ST.2D 315. A statement by the accused made in the course of a custodial interrogation is only admissible at trial upon proof by the state that the accused was advised of his constitutional rights to remain silent and have counsel present during the interrogation, and proof the accused knowingly, intelligently and voluntarily waived these rights. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, State v. Dailey (1990), 53 Ohio St.3d 88. Appellant contends he did not knowingly and intelligently waive his right to counsel because the police continued to question appellant after appellant had requested an attorney. See Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. Detective Seitz testified appellant never asked to speak to an attorney. Appellant testified he requested an attorney upon arrest, and during the interrogation. In reviewing a motion to suppress, the weight of evidence and credibility of witnesses is primarily for the trier of fact. State v. DePew (1988), 38 Ohio St.3d 275. There was evidence from which the trial court could reasonably find appellant did not invoke his right to counsel. Id. Appellant asserts the Miranda warnings given to appellant were insufficient because they did not inform him that he could stop answering at any time. The warning is not required to be in the precise language of the Miranda opinion. State v. Dailey (1990), 53 Ohio St.3d 88. A Miranda warning is adequate if it fully -6- apprises the suspect of state's intention to use the suspect's statements to secure a conviction, and informs him of his rights to remain silent and have counsel present. Id. at 90, Moran v. Burbine (1986), 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410. The warnings given to appellant in this case fully apprised appellant of his right to remain silent and have an attorney present. The warnings were adequate, although they did not state appellant could cease answering at anytime. See State v. Kulczak (Dec. 27, 1995), Summit App. No. 17258, unreported. The state presented sufficient evidence to prove appellant was informed of his rights, and he knowingly and voluntarily relinquished these rights. The trial court did not err in denying appellant's motion to suppress. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE STATEMENT CONTAINED IN STATE'S EXHIBIT I SHOULD HAVE BEEN SUPPRESSED DUE TO THE STATE'S VIOLATION OF RULE 16 WHICH GOVERNS THE THE (SIC) DISCOVERY PROCESS IN CRIMINAL CASES. Failure to provide discovery amounts to reversible error only when there is a showing that: (1) the prosecution's failure to disclose was a willful violation; (2) foreknowledge of the statement would have benefitted the accused in preparation of the defense; or (3) the accused was prejudiced by the admission of the statement. State v. Fox (1990), 66 Ohio App.3d 481. In this case, the record indicates the prosecutor did not willfully withhold the handwritten statement, but had only received the statement the day before the -7- suppression hearing. The handwritten statement does not contain any information not contained in the typewritten confession. Appellant was not prejudiced by the trial court's failure to suppress the handwritten statement. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -8- It is ordered that appellee recover of appellant their 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., CONCURS; O'DONNELL, J., CONCURS WITH CONCURRING OPINION. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69433 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : OPINION vs. : : : THEODORE W. JACKSON : : : Defendant-Appellant : : DATE: SEPTEMBER 26, 1996 O'DONNELL, J., CONCURRING: I concur with the majority in affirming the conviction in this case, however, I write separately to express my belief that this court should not presume the trial court denied the motion on the merits. The record in this case reveals that mid-way through the hearing on Jackson's motion to suppress the evidence, and before the court expressed an opinion or ruled on the motion, Jackson decided to change his plea, thereby depriving the court an opportunity to rule. The transcript of the hearing reveals the following: THE COURT: Pursuant to discussions that were just held at side bar, it's been brought to the Court's attention that the defendant is in fact -2- desirous of entering a plea with respect to case number 317655. Before we can -- before the Court can entertain that, and keeping in mind that a plea of guilty to the indictment would moot out the pending Motion to Suppress the evidence, * * *. * * * THE COURT: Yes. Again let me put on the record what was discussed at side bar. In lieu of a plea of guilty to the indictment, apparently the defendant wants to plead no contest. And our discussion indicated that would be acceptable. Thus, the trial court treated the motion as moot because it was as if Jackson withdrew the motion when he interrupted the .