COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70428 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION MIGUEL ROSADO : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-330279. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard A. Bell Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 SWEENEY, JAMES D., P.J.: Defendant-appellant Miguel Rosado appeals from his jury trial conviction of the following: (1) one count of Escape [R.C. 2921.34]; (2) one count of Complicity to Escape [R.C. 2923.03 and 2921.34]; (3) one count of Aiding Escape [R.C. 2921.35(B)]; (4) one count of Vandalism [R.C. 2909.05(B)(2)]; and (5) one count of 1 Possession of Criminal Tools [R.C. 2923.24]. All counts listed an aggravating felony specification (as a result of appellant's prior conviction of Murder on August 29, 1995, in Cuyahoga County Common Pleas Case No. CR-318266, which is presently on appeal in State v. Rosado, Cuyahoga App. No. 69619) and/or a violence specification (as a result of appellant's prior conviction of Carrying a Concealed Weapon in June of 1987 in Cuyahoga County Common Pleas Case No. CR-215211). For the reasons adduced below, we affirm. A review of the record indicates that this matter grew out of an attempted escape from the Cuyahoga County Jail located at the Justice Center in downtown Cleveland, Ohio. At the time of the attempted escape, appellant was detained in the county jail awaiting transport to the prison to begin serving his recently imposed sentence in his murder conviction. The basic plan of these inmates (appellant, Francisco Quinonez and Lazaro Correa-Castillo) 1 Appellant was acquitted of one count of Complicity to Escape (count five of the indictment). - 3 - 2 was to use some hacksaw blades and a screwdriver , which had been 3 smuggled into the jail facility by guard-Gregory Reaves , to cut through the bars of an eighth floor window and then break the glass. Once through the bars and the glass, they planned to lower themselves to the street by using nine sheets, which had been soaked with water and tied together, as a makeshift rope approximately sixty feet in length. Steps taken by the participants in furtherance of the anticipated break-out took place as early as mid-October of 1995, and the attempted break-out itself occurred on October 29, 1995. The break-out was foiled when a jail employee, at approximately 10:45 p.m., heard the sound of metal being sawn and saw the figure of a light-skinned man with closely cropped hair halfway out a cell window on the eighth floor of the jail building. This sound was reported, and subsequent investigation at approximately 11:05 p.m. located appellant, with fresh abrasions on his back, arm and left hand, in his cell on the eighth floor. Rosado's cell window contained sawn bars, a broken window pane and extensive damage to the metal window frame. 2 The hacksaw blades were purchased on October 26, 1995, by appellant's girlfriend, Heidi Gonzales, and by Mr. Quinonez's girlfriend, Sonya Anderson, at the direction of Rosado (who indicated the amount of blades and type of screwdriver to be purchased) and then turned over to guard-Reaves on Saturday morning, October 27, 1995. Gonzalez and Reaves gave statements to the police during the investigation admitting their involvement. Gonzalez also testified that the escape scheme was developed by Rosado, over a series of conversations, because he did not want to serve his pending murder sentence. 3 Gregory Reaves subsequently pled guilty to the offenses of Complicity to Escape and Aiding Escape. - 4 - Hacksaw blades and the screwdriver were later found hidden in an access panel to appellant's cell, and another hacksaw blade, wrapped in a small towel, was found laying on the cell's top bunk. Appellant's and Quinonez's bloody fingerprints were identified on the hacksaw blades. Broken metal window framing was found underneath the cell's bottom bunk. Later investigation also uncovered a number of other inmates who testified as to their knowledge of how the items were smuggled into the jail, how bedsheets were collected by Quinonez to be used as a rope, and the inmates' efforts to aid the escape by creating noises to cover up the sound of metal being sawn and glass breaking. One of the inmates, Jose Orengo, who acted as a look-out, testified on behalf of the prosecution to details of the escape plan. Mr. Orengo was asked by Rosado to help in the escape plan. Another inmate testifying for the prosecution, Robert Thomas, stated that he observed appellant sawing the bars on the window in his cell and using the screwdriver to pry the bar from the window frame. Another inmate, German Santiago, testified on behalf of the prosecution that appellant approached him and asked him to help in the escape by gathering information from the guards concerning the timing of cellblock rounds that evening. Mr. Santiago also observed appellant sawing the bars and using the screwdriver to pry off the window frame. At the close of the prosecution's case, the trial court denied the defendant's motion for acquittal made pursuant to Crim.R. 29. - 5 - Except for the introduction of three statements by two of the prosecution's inmate-witnesses, the defense put on no evidence during its case-in-chief. The defense then renewed its motion for acquittal, which the trial court denied. Subsequent to closing arguments by the parties and jury instructions by the trial court, the jury returned its verdict. This timely appeal presenting six assignments of error followed. I DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED TO AN ENHANCED TERM OF IMPRISONMENT BASED UPON AN INDICTMENT WHICH FAILED TO ALLEGE ANY ENHANCING CIRCUMSTANCE, THE INSTRUCTIONS OF THE COURT DID NOT REFER TO ANY ENHANCING CIRCUMSTANCE, AND THERE WAS NO SPECIAL FINDING BY THE JURY AS TO ANY ENHANCING CIRCUMSTANCE. This assignment assigns error in appellant's sentencing under count one of the indictment, Escape. Appellant argues that there exists a penalty enhancing provision in that code section and that provision was not argued by the prosecution, or instructed by the trial court, or specifically determined by the jury on its verdict forms. Thus, appellant argues that he could only be sentenced on the base offense of Escape. The indictment on the offense of Escape provided the following in pertinent part: that defendant, on October 29, 1995, ... unlawfully, knowing they were under detention or being reckless in that regard, did break or attempt to break such detention. SPECIFICATION ONE: (Aggravated Felony) - 6 - The Grand Jury further find and specify that the offender has previously been convicted of or pleaded guilty to an aggravated felony, the said Miguel Rosado, with counsel, on or about the 29th day of August, 1995, in the Court of Common Pleas, Cuyahoga County, Ohio, Case No. CR 318266, having been convicted of the crime of Murder, in violation of Revised Code Section 2903.02 of the State of Ohio. In its charge to the jury, the trial court reiterated the base language of the offense of Escape, but did not mention the aggravated felony specification. This was done upon the stipulation of the parties, who agreed to have that matter bifurcated so as not to allow the fact of the prior murder by Rosado to come before this jury. See R. 1115-1116. This court recognizes that appellant did not raise a timely objection at any time to the trial court regarding this alleged infirmity. Historically, such errors are waived for purposes of appeal. State v. Williams (1977), 51 Ohio St.2d 112. Additionally, by virtue of the stipulation by the parties relative to the bifurcation of the aggravation specification, any error in failing to charge the jury or have the jury determine the existence of the aggravating circumstance (the prior murder conviction) was invited by the appellant. Being invited error, appellant cannot now complain seeking to undo that error and any prejudice it may have caused at trial. State v. Kneip (1993), 87 Ohio App.3d 342. The first assignment of error is overruled. II - 7 - DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF COMPLICITY TO ESCAPE AS CHARGED IN COUNT TWO OF THE INDICTMENT. In this assignment, appellant argues that he could not be convicted of the general offense of Complicity to Escape because the subject matter of the case did not cover the indictment, but the subject matter of the case did fit a specific statute (R.C. 2921.35[B]). Appellant further argues that because there is a specific statute which is applicable to the facts of this case, he should have been charged under that statute and not the general statute which he was charged with violating. Count two of the indictment herein stated that on October 29, 1995, the appellant, ... did knowingly solicit or procure and/or aid or abet Francisco Quinones (sic) to commit a violation of Section 2921.34 of the Revised Code, in violation of Section 2923 of the Revised Code, to-wit: knowing he was under detention or being reckless in that regard, did break or attempt to break such detention. Appellant was indicted in count two for having violated R.C. 2921.34(A), which provides in part the following: No person, knowing he is under detention or being reckless in that regard, shall purposely break or attempt to break detention... and R.C. 2923.03(A), which provides in part the following: No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; - 8 - (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; *** The "specific statute" relied upon by appellant, R.C. 2921.35(B), provides as follows: No person who is confined in a detention facility, and with purpose to promote, or facilitate an escape or resistance to lawful authority, shall make, procure, conceal and lawfully possess, or give to another inmate, any instrument or thing which may be used for such purposes. Under the present facts, the statutes, R.C. 2921.34(A)/2923.03(A) versus R.C. 2921.35(B), are not irreconcilable and therefore the general statute may apply. See State v. Volpe (1988), 38 Ohio St.3d 191 (only where the general statute is irreconcilable with a specific statute will the specific statute govern over the facts at issue). In the case sub judice, Rosado went far beyond the acts of procuring, concealing and giving to another instruments (hacksaw blades, screwdriver, bed sheets) which were used in the attempt to break his detention. Rosado also committed those acts which violate R.C. 2923.03(A) by communicating the escape plan to others and enlisting those other persons' assistance in implementing that plan. Accordingly, the State had the option of charging Rosado with violating the statutes covering Complicity to Escape. The second assignment of error is overruled. III - 9 - DEFENDANT'S CONVICTION FOR VANDALISM IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. The basis of this assignment is that the offense of Vandalism was not proven because no evidence was presented demonstrating the element of "serious physical harm" to jail property. The standard of review for an appeal on the grounds of manifest weight of the evidence is as follows: In determining whether the verdict is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. This court also notes that the credibility of the witnesses is primarily the trier of fact's determination. State v. DeHass (1967), 10 Ohio St.2d 231. In the case sub judice, appellant stipulated that he had committed the offense of Vandalism. See R. 354-355, 1023. Additionally, there was a great deal of testimony and documentary - 10 - evidence detailing the extensive damage done to the cell window, window frame and bars on that window. As indicated by inmates who testified, this damage caused the cell to be temporarily unusable for its intended purpose of housing inmates at the facility. As such, the State demonstrated compliance with R.C. 2901.01(F)(2). See State v. Bowman (January 11, 1990), Cuyahoga App. No. 57659, unreported. Appellant next argues in support of this assignment that the county jail facility is not a governmental entity within the confines of R.C. 2909.05(B)(2), which statute provides as follows: No person shall knowingly cause serious physical harm to property that is owned, leased, or controlled by a governmental entity. A governmental entity includes, but is not limited to, the state or a political subdivision of the state, a school district, the board of trustees of a public library or public university, or any other body corporate and politic responsible for governmental activities only in geographical areas smaller than that of the state. Given the broad parameters of a "governmental entity," a county owned and operated jail facility is a governmental entity because a county is a body politic "responsible for governmental activities," such as operating a jail facility, in a geographical area which is smaller than the State. Appellant's reliance on sovereign immunity (R.C. 2744.02) in the case of a county sheriff whose employees have allegedly been negligent, Saunders v. McFaul (1990), 71 Ohio App.3d 46, is not applicable to the criminal offense at hand. - 11 - The third assignment of error is overruled. IV DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR ACQUITTAL. The following was recently stated by this court relative to a sufficiency of the evidence argument: The standard of review with regard to the sufficiency of the 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.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. - 12 - State v. Standberry (February 15, 1996), Cuyahoga App. No. 69079, unreported, 1996 WL 65875, at 3. Appellant's argument that there was no evidence demonstrating his attempt to escape is laughable. The evidence demonstrated that: (1) appellant was found in his cell with fresh abrasions and cuts on his body, most likely caused when he tried to squeeze through the sawn bars and broken glass of his cell; (2) witnesses testified that they purchased the hacksaw blades and screwdriver at the request of appellant; (3) pieces from the dismembered windowframe were found beneath the bottom bunk of Rosado's cell; (4) hacksaw blades used in the sawing of the bars were found in the vent leading from Rosado's cell; (5) witnesses observed Rosado sawing through the bars of his cell. No clearer attempt to escape is known to this court. The fourth assignment of error is overruled. V DEFENDANT WAS DENIED A FAIR AND IMPARTIAL JURY WHEN A BLACK JUROR WAS PEREMPTORILY EXCUSED BY THE PROSECUTION. During the voir dire of the jury, Rosado's co-defendant, Michael Burris, objected to the exclusion of a black potential juror. Appellant now attempts to use his co-defendant's objection as his own, despite the fact that appellant did not raise an objection at the time of the exclusion of the black juror. Having failed to raise his objection, Rosado has waived this argument for purposes of appeal. State v. Williams, supra. - 13 - Even had this error been preserved for appeal, appellant provides no discussion or evidence as to how he has been discriminated against in the exclusion of this juror or how his case was prejudiced. This failure precludes a prima facie showing of discrimination as required by Hernandez v. New York (1991), 500 U.S. 352, applying Batson v. Kentucky (1986), 476 U.S. 79. The fifth assignment of error is overruled. VI DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. The alleged ineffective assistance of counsel surrounds five separate instances: (1) during opening and closing arguments when Rosado's trial counsel indicated to the jury that Rosado was guilty of the offenses of Vandalism and Possession of Criminal Tools; (2) the failure to separate the trials of Rosado and his co-defendant, Michael Burris (who was the guard in charge of the cellblock on the night of the offense), where a statement by the co-defendant implicated Rosado; (3) the failure to seek a mistrial or seek to have Burris's written statement to the police, which allegedly incriminated Rosado, stricken when Burris, during the trial, entered a plea of guilty; (4) the failure of counsel to seek a cautionary instruction to the jury limiting the use of Burris's statement to Burris's issue of guilt; (5) the failure of defense counsel to object to the testimony of a court bailiff and court reporter concerning Rosado's plea in another criminal case as inadmissible "other acts" evidence, and the related failure of - 14 - counsel in not seeking a limiting instruction for the use of other acts evidence. The standard of review for addressing an argument based on ineffective assistance of trial counsel was recently stated in State v. Brooks (1996), 75 Ohio St.3d 148, 157, 661 N.E.2d 1030: Reversal of a conviction on the basis of ineffective assistance of counsel requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense, that is, deprived the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. When viewed against the abundance of facts demonstrating guilt herein, the decision of defense counsel to lay before the jury the defendant's guilt to two of the offenses is a sound trial tactic on the part of counsel. The decision to do so was an effort to bolster the credibility of the defendant, which when viewed in light of the clear violations of these offenses was an effort to lessen the shock to the jury's intelligence as to the remaining offenses. Accordingly, the first instance was not ineffective assistance of counsel. As to the second instance of alleged ineffective assistance of counsel, the statement of the co-defendant was read into evidence during the testimony of Sergeant David Bartko of the Cuyahoga County Sheriff's Department. See R. 556-590. A review of this statement reveals nothing of an incriminatory nature toward Rosado. The statement is a general denial of anything untoward occurring on - 15 - the shift of the co-defendant. We fail to see how appellant was prejudiced by this statement. Absent prejudice there can be no ineffective assistance of counsel. As to the third instance of alleged ineffective assistance of counsel, we repeat that the statement by the co-defendant was not prejudicial to Rosado. Thus, there could be no ineffective assistance of counsel where no prejudice accrued to the defendant in the admission of the co-defendant's statement to the police. As to the fourth instance of alleged ineffective assistance of counsel, a cautionary instruction concerning the application of the co-defendant's statement was unneeded where that statement was not prejudicial to Rosado. As to the fifth instance of alleged ineffective assistance of counsel, the testimony of the bailiff and the court reporter concerned Rosado's plea and sentence in another case and Rosado's attempt to get that trial judge's permission stay at the jail through the weekend so as to marry before being transported to the prison to serve his sentence on his murder conviction. See R. 460- 467, 634-644. Rather than being inadmissible as other acts evidence under Evid.R. 404(B), the evidence presented through the bailiff and the court reporter was admissible to demonstrate motive for the escape. See Evid.R. 801(D)(2)(a) and 404(B). Being admissible, there could be no ineffective assistance of counsel. The sixth assignment of error is overruled. Judgment affirmed. - 16 - - 17 - 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 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. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .