COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69601 CITY OF MAPLE HEIGHTS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS SZABO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM GARFIELD HEIGHTS MUNICIPAL COURT CASE NO. 95-TRC-2376 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MICHAEL G. CIARAVINO (#0052135) 5353 Lee Road Maple Heights, Ohio 44137 For Defendant-Appellant: LEO CLINTON DiEGIDIO (#0003448) 9735 Valley View Road Macedonia, OH 44056 - 2 - SPELLACY, C.J.: Defendant-appellant Thomas Szabo ("appellant") appeals his conviction for driving under suspension in violation of R.C. 4507.02. Appellant assigns the following errors for review: I. THE TRIAL COURT'S STATEMENT TO THE JURY THAT THE PROSECUTOR IS RIGHT WAS HIGHLY PREJUDICIAL TO THE DEFENSE. II. THE TRIAL COURT ERRED WHEN IT SAID THAT A SUBSTANTIAL EMERGENCY MUST BE A MEDICAL OR LIFE-THREATENING SITUATION. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. An App.R. 9(C) Statement of Facts and Proceedings is before this court as the record on appeal. Appellant was charged with driving under the influence, driving under suspension, and slow speed. It was stipulated that appellant's driving privileges were suspended at the time of his arrest on March 26, 1995. Appellant testified that he got into an argument with an acquaintance, Tim, at appellant's home. Afraid Tim might damage his automobile, appellant drove his car before it could be damaged. The police stopped appellant a few houses down the street. In chambers during a recess, the trial court addressed appellant's only proposed jury instruction which related to the driving under the influence charge. In his closing argument, appellant's counsel stated a defense to driving under suspension - 3 - was found in R.C. 4507.02(E) and proceeded to read the provision to the jury. In rebuttal, the state argued R.C. 4507.02(E) applied to life threatening emergencies. The trial court then instructed the jury. No objections were made by either side. During deliberations, the jury submitted a question to the trial court asking if there were any legitimate reasons for operating a vehicle if the driver's license is suspended. The trial court conferred with counsel in chambers. Appellant's counsel requested an instruction on a substantial emergency defense. The trial court informed appellant's attorney the requested instruction was to have been submitted prior to trial in writing, that appellant had failed to meet his burden of proof on the defense, and that he did not prove there was no other person reasonably available to drive in response to the emergency. The trial court then read R.C. 4507.02(E) to the jury along with paraphrasing pertinent head notes from State v. Harr (1992), 81 Ohio App.3d 244. The jury found appellant guilty of driving under suspension and slow speed but acquitted him of the driving under the influence charge. II. In his first assignment of error, appellant argues the trial court improperly told the jury the prosecutor was right. The alleged statement by the trial court does not appear anywhere in the record before this court. "It is the appellant's responsi- - 4 - bility to include such evidence in the appellate record so that the claimed error is demonstrated to the reviewing court." Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 229. Without an adequate record, a reviewing court is unable to evaluate the claimed error and must presume the validity of the lower court's action. Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant asserts the trial court erred in instructing the jury that a substantial emergency under R.C. 4507.02(E) must be a medical or life threatening situation. R.C. 4507.02(E) provides: It is an affirmative defense to any prose- cution brought pursuant to division (B), (C), or (D) of this section that the alleged offender drove under suspension or in viola- tion of a restriction because of a substantial emergency, provided that no other person was reasonably available to drive in response to the emergency. Appellant's attorney included R.C. 4507.02(E) in his closing argument. The trial court gave the instruction to the jury after the jury asked if there was any legitimate reason for operating a motor vehicle while your license is suspended. Appellant failed to submit a proposed jury instruction to the trial court in writing. See Crim.R. 30(A). Appellant introduced the issue of the defense during closing argument and should have anticipated the need for the instruction. Appellant waived any - 5 - error by failing to proffer a written instruction to the trial court pursuant to Crim.R. 30(A). Accord State v. Nichols (1993), 85 Ohio App.3d 65. Appellant's second assignment of error is overruled. Judgment affirmed. - 6 - 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 Garfield Heights 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. DAVID T. MATIA, J. and JOSEPH J. NAHRA, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 time .