COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70052 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : PRESTON HAYES : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-325444. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael B. Telep, Esq. L. Christopher Frey, Esq. Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -3- DAVID T. MATIA, J.: Preston Hayes, defendant-appellant, appeals his conviction for three counts of theft and one count of possession of criminal tools. Defendant-appellant assigns three errors. This court, finding error, affirms in part, reverses in part and remands this case back to the trial court solely for the purpose of resentencing consistent with this opinion. I. STATEMENT OF FACTS On July 17, 1995, Preston Hayes, defendant-appellant, was indicted by the Cuyahoga County Grand Jury on two counts of breaking and entering in violation of R.C. 2911.13, three counts of theft in violation of R.C. 2911.13, and one count of possession of criminal tools in violation of R.C. 2923.24. All counts except for possession of criminal tools contained a violence specification. Moreover, counts three through five 1 (theft) contained a furthermore clauses. Defendant-appellant pled not guilty to all counts. On October 23, 1995, a jury trial began. The state presented the testimony of Dennis Coupe, a carpenter who parked his van on Payne Avenue in Cleveland, Ohio on May 22, 1995. He testified that his vehicle contained various power tools and tool boxes. After he discovered the tools and boxes were missing, he called the police. While he was describing the items to the police, Mr. Coupe overheard the officer respond to a police radio broadcast. 1 Counts one and two (breaking and entering) were eventually dismissed by the trial court. -4- Mr. Coupe testified that approximately fifteen to twenty minutes later, the police arrived at his job site with a brown Ford LTD which had his tools and tool boxes in the trunk. The state also presented the testimony of Donald Shonut, a carpenter who locked and parked his pickup truck in a city owned parking lot. Inside the truck were various power tools in a canvas bag. Some of the tools belonged to Octagon Construction and were inscribed with the word "Octagon." Others had Mr. Shonut's first name, last initial, and last four numbers of his social security number. On May 22, 1995, Mr. Shonut received a page from his company that his truck was broken into and the items which were taken were recovered by the police. He testified that he went to the police station and identified his power tools, including his canvas bag. He further testified that he did not give defendant-appellant or anyone else permission to take his tools on May 22, 1995. Gerard Andryszczyk, a mechanical contractor, testified that on the morning of May 22, 1995, he stored four gas grills and various tools in the back of his van. He further testified that he parked the van at the Crazy Horse Saloon for lunch. After he was informed that his van had been broken into, Mr. Andryszczyk was informed by an undercover police officer that they had apprehended the males who took the grills and tools. Mr. Andryszczyk subsequently identified the items found inside the brown Ford LTD as his. Additionally, he testified he did not give the defendant-appellant permission to take his property. -5- The state then presented Officer Nate Sowa, a fourteen year police veteran, who testified that on May 22, 1995 he was assigned to the Third District Strike Force Spyglass Detail, a unit exclusively used to combat downtown auto theft. He maintained a perch on top of Erieview Tower Office Building with a pair of high-powered binoculars. Sometime between 1:00 and 1:30 p.m., Officer Sowa noticed a brown Ford LTD in the Crazy Horse Saloon parking lot with two men outside of it looking around. Officer Sowa testified that he radioed to alert the ground cars. When he looked back, Officer Sowa witnessed the two men taking boxes out of the back of a van, place them into the Ford LTD and drive off. He identified defendant-appellant as one of the males who took the boxes and who drove the car out of the parking lot. Officer Sowa kept surveillance on the car driven by defendant-appellant until they were stopped and arrested by the Cleveland Police Department. Detective Garner testified he was assigned to the Spyglass Detail in plain clothes and that he was driving an unmarked vehicle. After receiving the radio broadcast from Officer Sowa, Detective Garner and his partner arrested defendant-appellant. He testified that defendant-appellant stated that the property in the Ford LTD was given to him by a friend but was unable to identify this person. Detective Garner testified that Detectives Krych and Scott took defendant-appellant and his partner to another area where Gerard Andrysczcyk identified the property -6- removed from his van. Detective Garner's partner, Detective Carter, verified these facts. Preston Hayes, defendant-appellant, testified that on May, 22, 1995, he and Calvin Thomas decided to "go for a ride" and get a sandwich on the west side of town. When the two returned to the downtown area, defendant-appellant testified a white male was waving at cars and "flagging them down" from the side of the street. Defendant-appellant testified that he pulled over thinking that the male might have needed help repairing a flat tire. The male then approached defendant-appellant and said that he had some power tools they might want in his van in the parking lot. When they pulled next to the van, the male began handing boxes to Calvin Thomas who handed them to defendant-appellant who began putting the items into his car. Defendant-appellant gave approximately $65 to $70 to Calvin Thomas who paid the male. Defendant-appellant could not explain how Mr. Andryszczyk's tools and gas grills got into his vehicle. The jury found defendant-appellant guilty of three counts of theft with the value of items stolen being worth more than three hundred dollars but less than five thousand dollars. The jury also found defendant-appellant guilty of possession of criminal tools, i.e., his Ford LTD. Defendant-appellant was sentenced to two and one-half years to ten years incarceration for counts three, four and five (theft) and to one and one-half years to five years for count six (possession of criminal tools). The -7- counts were to run concurrent to each other. The notice of appeal was filed on January 2, 1995. -8- II. FIRST ASSIGNMENT OF ERROR Preston Hayes, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT ERRED IN VIOLATION OF R.C. 2945.12, CRIM.R. 43(A), SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEEN AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES WHEN THE COURT PROCEEDED WITH THE TRIAL WITHOUT THE APPELLANT BEING PRESENT. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN READING THE VERDICT OUTSIDE THE PRESENCE OF DEFENDANT- APPELLANT. Defendant-appellant argues his right to be present at every stage of his trial had been violated. Specifically, defendant- appellant argues the trial court erred in reading the verdict outside defendant-appellant's presence in violation of his constitutional right to be present and in violation of R.C. 2945.12 and Crim.R. 43(A). Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: RIGHT TO BE PRESENT. The Sixth and Fourteenth Amendment's of the United States Constitution guarantee to an accused in a state criminal proceeding the right to be personally present at all stages of the trial. See Illinois v. Allen (1970), 397 U.S. 337. In Ohio, the right of the accused to be present is guaranteed by Section 10, Article I of the Ohio Constitution. See State v. Walker (1959), 108 Ohio App. 333. This right is further embodied in Crim.R. 43(A) which provides: -9- (A) Defendant's presence. The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. In all prosecutions, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the verdict. Accordingly, absent an effective waiver, it is error for the trial court to read the verdict in defendant-appellant's absence. C. THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERROR IN READING THE VERDICT OUTSIDE THE PRESENCE OF DEFENDANT-APPELLANT. In the case sub judice, defense counsel argues the trial court erred in reading the verdict outside the presence of defendant- appellant. The reason for defendant-appellant's absence was that he suffered a heart attack and was in the hospital. In this district, we have consistently held that the failure of counsel to object to the rendition of the verdict in a felony case in the absence of the defendant constitutes waiver of any perceived error. See State v. Woods (1982), 8 Ohio App.3d 56; State v. Zagger (August 13, 1981), Cuyahoga App. No. 42540, unreported. Here, defense counsel had every opportunity to object prior to the reading of the verdict. However, none was made. We therefore hold that defendant-appellant waived his right to be present while the verdict was read. Defendant-appellant's first assignment of error is not well taken. -10- III. SECOND ASSIGNMENT OF ERROR Preston Hayes, defendant-appellant, states as his second assignment of error: II. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO AN INDEFINITE TERM OF INCARCERATION FOR COUNT SIX OF THE INDICTMENT; POSSESSION OF CRIMINAL TOOLS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-APPELLANT TO AN INDEFINITE TERM OF INCARCERATION FOR POSSESSION OF CRIMINAL TOOLS. Defendant-appellant argues the trial court erred in sentencing him to an indefinite term of incarceration for count six of the indictment. Specifically, defendant-appellant argues the sixth count of the indictment did not contain a violence specification and as such should have been subjected to a definite term of incarceration of either six, twelve or eighteen months. Defendant-appellant's second assignment of error is well taken. B. STANDARD OF REVIEW: SENTENCING UNDER R.C. 2929.11(D)(1). R.C. 2929.11(D)(2) states: (D) Whoever is convicted of or pleads guilty to a felony of the third or fourth degree and did not, during the commission of that offense, cause physical harm to any person or make an actual threat of physical harm to any person with a deadly weapon, as defined in section 2923.11 of the Revised Code, and who has not previously been convicted of an offense of violence shall be imprisoned for a definite term, and, in addition, may be fined or required to make restitution. The restitution shall be fixed by the court as provided in this section. *** -11- The terms of imprisonment shall be imposed as follows: (1) For a felony of the third degree, the term shall be one, one and one-half, or two years; (2) For a felony of the fourth degree, the term shall be six months, one year, or eighteen months. "Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void." State v. Beasley (1984), 14 Ohio St.3d 74, 75. C. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-APPELLANT TO AN INDEFINITE TERM OF INCARCERATION. In this case, both parties agree the trial court erred in sentencing defendant-appellant to an indefinite term of incarceration for possession of criminal tools as there was no violence specification in said indictment. Although all four counts of defendant-appellant's conviction are being served concurrently, it is an error which must be corrected by the trial court. See State v. Hill (1991), 72 Ohio App.3d 233. We therefore remand this case back solely for the purpose correcting this statutorily incorrect sentence consistent with this opinion and Crim.R. 43(A). See Columbus v. Rowland (1981), 2 Ohio App.3d 144. Defendant-appellant's second assignment of error is well taken. IV. THIRD ASSIGNMENT OF ERROR Preston Hayes, defendant-appellant, states as his third assignment of error: -12- III. APPELLANT RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF GRAND THEFT ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. A. ISSUE RAISED: WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUSTAIN DEFENDANT-APPELLANT'S CONVICTION. Defendant-appellant argues that his "furthermore" clause increased the degree of his crime and is, therefore, an essential element to that crime. Accordingly, defendant-appellant argues the state erred in failing to present the furthermore clause to the jury. Since an essential element of the crime was not proven beyond a reasonable doubt, defendant-appellant argues his conviction was not supported by sufficient evidence. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: SUFFICIENCY OF THE EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. -13- See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. It is well established that when a prior conviction enhances the degree of the offense to be proved, it constitutes an essential element of that offense and hence, must be presented to the jury and proved beyond a reasonable doubt. See State v. Allen (1987), 29 Ohio St.3d 53; State v. Henderson (1979), 58 Ohio St.2d 171. Thus, evidence of a prior conviction must be presented to the trier of fact for a verdict to be based upon sufficient evidence. C. AS DEFENDANT-APPELLANT STIPULATED TO THE EXISTENCE OF THE FURTHERMORE CLAUSES, HE CANNOT NOW ALLEGE ERROR. In the case sub judice, defense counsel stipulated to the existence of the furthermore clauses that were referred to in the indictment. It was defense counsel's concern that the jury would hear about defendant-appellant's prior robbery conviction and that it would influence there decision. "Under the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d 249; Faber v. Queen City Terminals, Inc. (1994), 93 Ohio App.3d 197. As any error in failing to present the furthermore clause to the jury was induced by defense counsel, defendant-appellant cannot now claim reversible error. Defendant-appellant's third assignment of error is not well taken. -14- Judgment affirmed in part, reversed in part and remanded for resentencing. -15- This cause is affirmed in part, reversed in part and remanded for resentencing consistent with the opinion herein. It is, therefore, considered that said appellant and said appellee equally share the costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J. and PATTON, J., CONCUR. DAVID T. MATIA 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 .