COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69588 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOSEPH WALLACE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 5, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-313754. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Randi Ostry LeHoty, Esq. Assistant County Prosecutor 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 -2- DAVID T. MATIA, J.: Joseph Wallace, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Case No. CR-313754, of the offenses of aggravated arson and arson in violation of R.C. 2909.02 and R.C. 2909.03 respectively. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS In the early morning hours of August 3, 1994, a two and one- half story home located at 3901 East 78th Street, Cleveland, Ohio was the subject of an arson. The home, which was owned by Eric Froimson and used exclusively as rental property, was a total loss as a result of the fire. Fortunately, the home was vacant at the time of the fire; however, one firefighter, Tom Schweinfurth, was injured after falling from a ladder while fighting the blaze. In addition, a second firefighter, Jim Maslott, allegedly suffered from smoke inhalation. On September 12, 1994, Joseph Wallace, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in a three count indictment arising out of the arson. The first count of the indictment averred that defendant-appellant, by means of fire or explosion, knowingly created a substantial risk of serious physical harm to firefighter Tom Schweinfurth in violation of R.C. 2909.02. The second count of the indictment averred that defendant- appellant, by means of fire or explosion, knowingly created a substantial risk of serious physical harm to firefighter Jim -3- Hazlett in violation of R.C. 2909.02. The third and final count of the indictment averred that defendant-appellant, by means of fire or explosion, knowingly caused or created a substantial risk of physical harm to property of Eric Froimson, without his consent, the value of property or the amount of physical harm involved being $5,000 or more, in violation of R.C. 2909.03. Count three also contained a violence specification. On October 12, 1994, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all three counts contained in the indictment. On July 26, 1995, defendant-appellant's trial began. Prior to commencement of trial, defendant-appellant executed a written waiver of his right to a trial by jury. The waiver was signed by both defendant-appellant and his attorney and duly filed with the Cuyahoga County Clerk of Court. In addition, the trial court executed the following judgment entry dated July 26, 1995: Now comes the prosecuting attorney on behalf of the state and defendant, Joseph Wallace. In open court. Represented by counsel and was fully advised of his/her constitutional rights. Including his/her right to a trial by jury. Defendant voluntarily and knowingly executed a defendant's waiver of jury trial. Case being tried to the court. On trial. Progress. Parties give opening statements. At trial, the state presented eight witnesses in support of its case. The state's first witness, Howard Myers, testified -4- that he had once lived in the neighborhood with his family and was acquainted with defendant-appellant as a maintenance man that periodically worked on rental property owned by Eric Froimson, including the property that is the subject of the underlying indictment. Mr. Myers testified that in September of 1993, defendant-appellant stated "*** for the right price, I could torch that one." (Tr. 38.) At the time the statement was made, defendant-appellant was pointing to the subject property. The state's second witness, Eric Froimson, the owner of the subject property, testified that he employed defendant-appellant as a maintenance man on the subject property as well as at other rental properties Mr. Froimson owned in the neighborhood. On cross-examination Mr. Froimson testified that 3901 East 78th Street was very profitable for himself as well as defendant- appellant and he did not believe defendant-appellant was responsible for burning the property. The state's third witness, Kathy Scott, testified that she had been the last resident of the property in question. Mrs. Scott stated that she moved from the property due to numerous maintenance problems inherent in the building as well as a problem with roaches and rats. Mrs. Scott testified that she turned the keys to the property over to defendant-appellant upon moving from the home. In addition, Mrs. Scott testified that the gas line to the home was turned off one day before the fire occurred. -5- The state's fourth witness, Max Stein, was clearly the most significant witness of the case. Max, a sixteen-year-old boy at the time of trial, testified that he lived across the street from the subject residence. On the night of the fire, Max and a friend went to a Cleveland Indians baseball game at Jacobs Field. Max had been awarded two tickets to the game as recognition for his volunteer work at University Settlement and in public relations where he would appear as McGruff the Crime Fighting Dog. Max arrived home from the game at approximately 12:15 a.m. on August 3, 1994. After briefly speaking with his mother, Max proceeded to an upstairs bedroom where he telephoned a girl that he knew. Minutes later, Max was called downstairs by his mother, Debra Stein, to investigate the source of their dog's barking. Max looked out the back door and observed defendant-appellant proceeding down the alley next to the Stein's residence smoking a cigarette and carrying a glass jar similar in size to a spaghetti sauce jar. Max, satisfied that the dog was barking only at defendant-appellant, returned upstairs and resumed his telephone conversation. Soon after, Max's mother again requested that Max investigate the source of their dog's continued barking. Max testified that he came downstairs the second time, looked out the front window and observed defendant-appellant standing in front of the subject residence holding the glass jar with a rag stuffed into the mouth of the jar. Max then saw defendant-appellant light the rag with -6- a lighter and throw the jar into the open front door of the home. The residence then quickly ignited into flame as defendant- appellant fled the scene. A short time later, as Max, his parents and other neighborhood residents watched the firefighters attempt to contain the fire, Max's mother made a statement to the effect that she believed defendant-appellant was somehow responsible for the fire to which Max replied that defendant-appellant was, in fact, responsible. Max's mother then directed Max to the police officers on the scene to tell them what he had observed. Max testified further that several months after the fire, he told defendant-appellant's son, John Paul, and John Paul's friend, Steven Bartzzak, that he had lied about defendant- appellant's involvement in the fire. His stated reason for this recantation was fear of a physical assault at the hands of his peers. On cross-examination, Max gave conflicting responses to a number of questions regarding his initial identification of defendant-appellant, his former testimony at the preliminary hearing and his overall version of the events pertaining to the fire. The state's fifth witness, Debra Stein, testified regarding the night of the fire. In all significant respects, Mrs. Stein's testimony corroborated that of her son Max Stein. Mrs. Stein was not, however, an eyewitness to the arson. -7- The state's sixth witness was Tom Schweinfurth, the City of Cleveland Firefighter injured during the fire as a result of falling from a twenty-foot extension ladder. Mr. Schweinfurth testified that he severely injured his back and his left leg as a result of his fall. The state's seventh witness, John Colleran, a lieutenant in the City of Cleveland Fire Department and a member of the Department's Arson Unit since 1985, testified that, during the investigation of the fire at 3901 East 78th Street, he had a conversation with Max Stein regarding the cause of the fire. As a result of this conversation, Mr. Colleran arrested defendant- appellant at defendant-appellant's home. Prior to the arrest, Mr. Colleran and his partner were met at the door of defendant- appellant's home by defendant-appellant's wife, Joanne Dunbar, who informed the officers that defendant-appellant was sleeping. After several minutes, defendant-appellant appeared at the door and was taken into custody. Mr. Colleran testified further that, as a result of his investigation, it was apparent that the fire was intentionally set in the living room of the home with the use of a flammable liquid substance used as an accelerant. In Mr. Colleran's opinion, the residence was a total loss as a result of the fire. The eighth and final witness for the state, Al Lugo, a fire department investigator for the Cleveland Fire Department, testified that he was responsible for the follow-up investigation -8- of the fire at 3901 East 78th Street. Mr. Lugo stated that, after interviewing a number of people including Eric Froimson and Max Stein, all of the evidence indicated that defendant-appellant was responsible for the fire. The state then rested and defendant-appellant moved for dismissal of all three counts contained in the indictment pursuant to Crim.R. 29. The trial court denied defendant- appellant's motion to dismiss. Defendant-appellant's case consisted of four witnesses: Joanne Dunbar, Harry Kupski, Lena Kupski and Steven Bartzzak. The defense's first witness, Joanne Dunbar, defendant-appellant's wife, testified that defendant-appellant was with her for a majority of time on the night of the fire with the exception of an approximately twenty minute period during which defendant- appellant left the house to buy beer from a local convenience store. Mrs. Dunbar stated that defendant-appellant returned to their home at approximately 11:15 p.m. and did not leave the house again until they both became aware of the fire. Mrs. Dunbar testified further that, prior to discovering the fire, her defendant-appellant had been engaged in sexual relations. Mrs. Dunbar's testimony sharply contrasted with that of Lieutenant Colleran's testimony in that Mrs. Dunbar denied answering the door when Lieutenant Colleran and his partner first investigated defendant-appellant as a possible suspect. Mrs. Dunbar maintained that it was defendant-appellant who first -9- answered the door and spoke with the police since she was not dressed. The second and third witnesses for the defense, Harry and Lena Kupski, testified that they were neighbors with defendant- appellant and Mrs. Dunbar. On the night of the fire, the Harry and Lena Kupski testified that they observed the fire along with defendant-appellant and his wife for approximately thirty to forty minutes and that defendant-appellant appeared normal during that time period. The fourth and final defense witness was Steven Bartzzak, a friend of defendant-appellant's son John Paul. Steven testified regarding the conversation he allegedly had with the sole eyewitness Max Stein in which Max admitted fabricating his story regarding defendant-appellant's involvement with the fire. Steven stated that he did not initiate the conversation with Max Stein or threaten him in any way. The defense then rested and renewed the motion to dismiss the indictment pursuant to Crim.R. 29. The trial court granted defendant-appellant's motion in part as it related to the violence specification contained in the third count of the indictment but denied the motion as to the remaining counts. After deliberations, the trial court found defendant-appellant guilty of aggravated arson as charged in count one of the indictment and arson, without the violence specification, as charged in count three of the indictment. The trial court found -10- defendant-appellant not guilty of aggravated arson as charged in the second count of the indictment. On August 21, 1995, the trial court sentenced defendant- appellant to a term of 7 to 25 years on count one and to a term of 2 to 15 years as to count three. All time was ordered to be served concurrently. On September 22, 1995, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Joseph Wallace's, defendant-appellant's, first assignment of error states: THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO TRY APPELLANT WHEN THE COURT FAILED TO STRICTLY COMPLY WITH THE MANDATORY REQUIREMENTS OF R.C. 2945.05. A. THE ISSUE RAISED: WAIVER OF A JURY TRIAL. Defendant-appellant argues, through his first assignment of error, that the trial court failed to strictly comply with R.C. 2945.05 in obtaining his written waiver of jury trial. Defendant-appellant maintains that his written waiver of jury trial was not a valid waiver and the trial court was therefore without jurisdiction to proceed with the bench trial. Specifically, it is defendant-appellant's position that the record from the trial court fails to reflect that defendant- appellant, in open court, was engaged by the trial court as to the implications of voluntarily relinquishing the constitutional right to a trial by jury. -11- B. STANDARD OF REVIEW FOR WAIVER OF A JURY TRIAL. R.C. 2945.05 states: In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I ***, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury." Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had an opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial. In Ohio, a trial court is not required to inform a defendant personally about his right to a jury trial before accepting a written waiver of jury trial. State v. Morris (1982), 8 Ohio App.3d 12. Nor does a jury waiver have to be signed by the defendant in front of the judge in open court. State v. Walker (1993), 90 Ohio App.3d 352. The Ohio Supreme Court has held that jury waivers require strict compliance with R.C. 2945.05 or the trial court is without jurisdiction to proceed to trial without a jury. State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261. C. JURY WAIVER WAS VALID. -12- In this case, there is no dispute that defendant-appellant executed a written waiver of jury trial which was also signed by his attorney and duly filed with the Cuyahoga County Clerk of Courts and made a part of the trial court record. In addition, the trial court record contains a journal entry which reaffirms that defendant-appellant was fully advised of his constitutional rights, including his right to a trial by jury, in open court, and that defendant-appellant knowingly and voluntarily executed a waiver of his right to a jury trial. Clearly, the trial court fully complied with the mandates of R.C. 2945.05 in accepting defendant-appellant's jury waiver and did, in fact, possess subject matter jurisdiction to proceed with the bench trial of defendant-appellant. Contrary to defendant-appellant's position, the record does not reveal prejudicial error requiring reversal of the underlying conviction. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Joseph Wallace's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues, through his second and final assignment of error, that the trial court's verdict was against -13- the manifest weight of the evidence. Specifically, defendant- appellant maintains that the testimony of Max Stein, the only eyewitness to the alleged arson, was contradicted in many respects and, by Stein's own admission, patently unreliable. Accordingly, it is defendant-appellant's position that the state failed to demonstrate beyond a reasonable doubt that defendant- appellant was responsible for burning 3901 East 78th Street. Defendant-appellant's second assignment of error is not well taken. -14- B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: -15- 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. THE TRIAL COURT'S VERDICT WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the instant case, evidence was presented by way of the eyewitness testimony of Max Stein, as well as testimony of other neighborhood residents and investigating officers of the Cleveland Fire Department, in an attempt to establish the elements of the offenses of aggravated arson and arson. Max Stein, the eyewitness, testified as to defendant-appellant's actions on the night of the fire. Max testified that he observed defendant-appellant on two separate occasions carrying a glass jar. On the second occasion, Max observed defendant-appellant -16- light a rag which had been stuffed into the jar and toss the jar into the subject residence. Max also described defendant- appellant's appearance and clothing on the night of the fire. Howard Myers, a former neighborhood resident, testified that defendant-appellant had, on a prior occasion, demonstrated an interest in burning down the subject property in exchange for a monetary benefit. This statement by defendant-appellant was unsolicited by Mr. Myers. Lastly, Lieutenant John Colleran of the Cleveland Fire Department testified that, as a result of his investigation, it was apparent that the fire in question was intentionally set in a manner entirely consistent with that described by eyewitness Max Stein. While it is accurate to characterize Max Stein's testimony as inconsistent in certain respects, a review of the entire record demonstrates that Max Stein's identification of defendant- appellant as the arsonist was sufficiently reliable to enable the trial court to consider the testimony as accurate. Similarly, the testimony of Joanne Dunbar, defendant-appellant's wife, was contradicted in a number of respects by Max Stein and Lieutenant Colleran. Considering that the weight to be given the evidence and the credibility of the witnesses are primarily matters for the trier of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the trier of fact, State v. Grant (1993), 67 Ohio St.3d 465; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say -17- that the trial court's verdict in this case was against the manifest weight of the evidence. Accordingly, a review of the entire record demonstrates that the trier of fact did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of aggravated arson and arson. Defendant-appellant's conviction was supported by substantial credible evidence upon which the trier of fact could reasonably conclude that defendant-appellant was guilty of the offenses in question. Defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -18- 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. SPELLACY, C.J., CONCURS; HARPER, J., DISSENTS WITH DISSENTING OPINION. 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 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. 69588 STATE OF OHIO : : Plaintiff-appellee : : DISSENTING OPINION -vs- : : JOSEPH WALLACE : : Defendant-appellant : : : DATE: FEBRUARY 5, 1997 : SARA J. HARPER, J., DISSENTING: Appellant submits that he is entitled to a new trial either as a result of insufficient compliance with R.C. 2945.05, or because his convictions are against the manifest weight of the evidence. I respectfully dissent from the majority's affirmance of appellant's convictions since I find that either of appellant's assignments of error require a reversal of those convictions. Appellant, in the first assignment, submits that the trial court was without jurisdiction to conduct a bench trial in the absence of strict compliance with R.C. 2945.05. Appellant concedes, and the majority acknowledges, that a written jury waiver was properly executed and filed with the court in accordance with this statute. However, appellant argues that the waiver was not made in "open court," an essential requisite for the attainment of jurisdiction. A criminal defendant's right to a jury trial is a fundamental right. Duncan v. Louisiana (1968), 391 U.S. 145, -2- 149, 88 S.Ct. 1444, 1447-1448, 20 L.Ed.2d 491. Nonetheless, the defendant may waive the right pursuant to R.C. 2945.05 which provides, in pertinent part: In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. *** Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. *** (Emphasis added.) The Supreme Court of Ohio described the requirements of this provision as clear and unambiguous. State v. Pless (1996), 74 Ohio St.3d 333, 337. Generally, these terms specify that a valid waiver of the right to trial by jury only occurs when a criminal defendant signs a written waiver, and the waiver is filed and made a part of the criminal record. See, also, Crim.R. 23(A) which permits knowing, intelligent and voluntary waivers prior to or during trial. Otherwise, a trial court lacks jurisdiction under R.C. 2945.05 to try the defendant without a jury. Pless, 337. See State v. Haught (1996), 76 Ohio St.3d 645; State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261; State v. Tate (1979), 59 Ohio St.2d 50. Most defendants who challenge a trial court's jurisdiction to hear a case under R.C. 2945.05, do so based upon an alleged violation of the written waiver and filing requirement. See, e.g., Haught; State ex rel. Larkins v. Baker (1995), 73 Ohio St.3d 658; Dallman; State v. Billings (1995), 103 Ohio App.3d 343; State v. Coleman (May 9, 1996), Cuyahoga App. No. 69202, -3- unreported; State v. Lenix (July 27, 1995), Cuyahoga App. No. 67532, unreported. Appellant cites State v. Walker (1993), 90 Ohio App.3d 352, for the proposition that the court must not only "file" a written waiver, but must also enter into a meaningful colloquy with a defendant to determine the voluntary nature of the plea. The Supreme Court of Ohio recognized in State v. Jells (1990), 53 Ohio St.3d 22, that Ohio law does not require trial courts to interrogate a defendant about his knowledge of the right to trial by jury. Id., 25-26. See State v. Griffin (1979), 13 Ohio App.3d 376; State v. Morris (1982), 8 Ohio App.3d 12. Rather, "[t]he Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel." (Emphasis added.) Jells, 26, citing Morris. The Jells court continued with the following observation: [W]hile it may be better practice for the trial judge to enumerate all the possible implications of a waiver of a jury, there is no error in failing to do so. Since the executed waiver in this case complied with all of the requirements of R.C. 2945.05, and counsel was present at the signing of the waiver, we find no error. Id. The Court of Appeals for Mahoning County found in Walker, supra, that this language did not fully interpret R.C. 2945.05, a finding in appellant's favor. The relevant passage from Walker reads as follows: -4- Appellant contends that, in addition to the mandate that the waiver must be written, R.C. 2945.05's requirement that the waiver be "made" in open court mandates an actual "signing" of the written waiver before the trial judge in open court. Appellant further argues that his interpretation of the statutory requirement is supported by the Supreme Court's opinion in *** Jells ***. However, in Jells, the appellant contended that the trial court erred in not conducting a "thorough" enough inquiry as to appellant's understanding of his waiver of a jury trial. The court therein had, in open court, reviewed the defendant's written waiver, and inquired of him whether he had voluntarily executed the signed waiver. The Supreme Court determined that this brief colloquy was sufficient to establish that "an intelligent, voluntary, and knowing waiver was made." *** *** [H]owever, *** the court made no attempt to clarify the meaning of the statutory language which provides: "Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had an opportunity to consult with counsel." R.C. 2945.05. In light of Jells and Morris [where trial court personally addressed the defendant], ***, we interpret the provision to mean that there must be further evidence on the record, in addition to the signed writing, that a defendant has voluntarily made an informed waiver of his constitutional right to a trial by jury. We conclude that a valid waiver of the right to a jury trial is accomplished only by completion of a two step process, set forth by the statute and reinforced by Crim.R. 23(A). First, a defendant must sign a written statement affirming that he is knowingly and voluntarily waiving his constitutional right to a trial by jury, ***. Additionally, there must occur, in open court, a colloquy between the trial judge and the defendant himself, extensive enough for the judge to make a reasonable determination that the defendant has been advised and is aware of the implications of voluntarily relinquishing a constitutional right. *** (Emphasis added; footnotes omitted.) Walker, 357-358. See State v. Cleckner (Aug. 25, 1995), Trumbull App. No. 94-L-126, unreported. -5- The requirement outlined in Walker that there be a colloquy in open court comports somewhat with this court's review in Morris, supra, and State v. Johnson (Mar, 5, 1981), Cuyahoga App. No. 42722, unreported. In Morris, the trial court apprised the defendant that the jury waiver form was in its possession. The court then asked him whether he understood the form upon its execution. This discussion satisfied the purpose of R.C. 2945.05. Morris, 14. In Johnson, a one-sentence inquiry by the court satisfied the "open court" requirement. These cases reveal that even though we did not specifically address the "open court" requirement, we acknowledged some form of discussion between the trial court and the defendant in conjunction with the acceptance of a jury waiver. In the within case, a journal entry provides that appellant's jury waiver was accepted in "open court." There is no other evidence in the record, e.g., statements reduced to a transcript, that the trial court personally addressed the appellant about the waiver. This inactivity violates the standard expressed in Walker, i.e., that the court determine the voluntary nature of the waiver prior to its acceptance. Based upon Walker's reasoning and the ensuing authorities, I am unable to embrace the majority's acceptance of a standardized journal entry to prove that the waiver was accepted in "open court." The Supreme Court of the United States cautioned against the rote acceptance of a jury waiver in Patton v. United States (1930), 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, overruled on -6- other grounds sub nom. Williams v. Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. The relevant passage follows: In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by *** the court, we do not mean to hold that the waiver must be put into effect at all events. *** Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. (Emphasis added.) Patton, 281 U.S. at 312-313. Patton makes clear that a trial court should not automatically accept a defendant's waiver of a jury trial. Moreover, Patton emphasizes that a defendant must intelligently consent to the waiver. See Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Simmons v. State (1906), 75 Ohio St.346 (in indulging every reasonable presumption against the waiver of a fundamental right, including right to trial by jury, a defendant must do so -7- voluntarily, knowingly and intelligently, with an awareness of the relevant circumstances and probable consequences). The state carries the burden of establishing a valid waiver of a fundamental constitutional right. Robertson v. California (1989), 493 U.S. 879, 110 S.Ct. 216, 107 L.Ed.2d 169, rehearing denied, 493 U.S. 985, 110 S.Ct. 525, 107 L.Ed.2d 525, leave to file second petition for rehearing denied (1990), 498 U.S. 926, 111 S.Ct. 309, 112 L.Ed.2d 262, citing Michigan v. Jackson (1986), 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631. Doubts that inevitably arise from a silent record should consequently be resolved in favor of protecting the defendant's right to a jury trial. Boykin v. Alabama (1969), 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (applying Carnley v. Cochran [1962], 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 [wherein it was expressed that presuming waiver of the Sixth Amendment right to counsel from a silent record is impermissible]). See Robertson. A record fails to establish the necessary consent unless the trial court references the defendant's intelligent consent to a waiver of a jury trial. This view was most succinctly pointed out by the court in Robertson wherein it stated: [A] presumption that defendant's counsel will always inform him of the relevant factors in a decision to waive constitutional rights amounts to a rule that all waivers made after the defendant has retained counsel necessarily will be considered voluntary, knowing, and intelligent. Such a rule offends common sense and impermissibly strips a defendant of constitutional protections long recognized by this Court. (Emphasis sic.) -8- Robertson, 493 U.S. at 881, 110 S.Ct. at 217. Based upon the foregoing activity by the Supreme Court of the United States regarding the waiver of a fundamental right, I am of the opinion that the better course to follow in these particular circumstances is that course followed by the federal district courts. The relevant federal rule, Fed.R.Crim.P. 23(a), mirrors Crim.R. 23(A) insofar as it acknowledges that a defendant can waive the right to jury trial only if the waiver is knowing, intelligent and voluntary. In United States v. Robertson (C.A.10, 1995), 45 F.3d 1423, rehearing denied, 49 F.3d 671, certiorari denied, U.S. , 116 S.Ct. 133, L.Ed.2d , one of the defendants in the consolidated appeal, Glenda Walker, challenged her jury waiver. One of the two arguments presented by Walker was that the waiver was invalid because the district court accepted the waiver without first inquiring as to whether she understood the nature of the right and the consequences of waiving it. Id., 1431- 1432. The circuit court accepted this argument, explaining as follows, in relevant part: [T]here appears to be unanimous agreement among those circuits that have addressed the issue that trial courts should inform defendants, on the record, of the nature of the right to trial by jury and the consequences of waiving that right before a waiver is accepted--the only dispute being whether such a dialogue should be mandated by a supervisory rule or strongly suggested to the district courts. See also 2 Charles A. Wright, Federal Practice & Procedure: Criminal 2d Sec. 372 (1982) ("It clearly is the better practice for the court to interrogate the defendant personally, before accepting a waiver of jury trial, to be sure that the defendant understands his right to trial by jury and the consequences of a waiver."). -9- *** In recognition of the importance of a colloquy between the defendant and district court regarding the decision to waive the right to trial by jury, we join those circuits that, while declining to issue a mandatory supervisory rule, strongly urge district courts personally to inform each defendant of the nature of jury trials on the record before accepting a proffered waiver. Given the significance of the right to a jury trial and the importance of the decision to waive that right, we have no doubt district courts will insure such waivers are knowing, voluntary, and intelligent by informing defendants, on the record, of the nature of that right and the consequences of waiving it. Defendants should be informed that (1) twelve members of the community compose a jury; (2) the defendant may take part in jury selections; (3) jury verdicts must be unanimous; and (4) the court alone decides guilt or innocence if the defendant waives a jury trial. "When district courts provide this information on the record, they help insure that defendants understand the basic mechanics of a jury trial before deciding whether to waive that right. By asking appropriate questions the district court will also be better able to perform its task of determining whether a proposed waiver is in fact being offered voluntarily, knowingly and intelligently. Finally, the record on appeal will be far more informative and helpful. ***" [United States v.] Cochran [C.A.9, 1985], 770 F.2d [850,] at 853. Here, Ms. Walker did not sign the written waiver of her right to a jury trial submitted on her behalf. It was signed only by her attorney. As explained above, this fact is not necessarily fatal to the validity of that waiver. *** The district court never inquired as to the circumstances surrounding the waiver and no dicussion was ever held in the presence of Ms. Walker regarding her decision to waive the right to trial by jury. Under these circumstances, there is no way for a reviewing court to determine whether Ms. Walker's waiver was knowing, voluntary, and intelligent. This fact, coupled with the strong presumption against finding a waiver of fundamental constitutional rights, ***, compels us to reject the government's argument that her waiver is nevertheless valid. *** The right of trial by jury is one enjoyed by the people as well as defendants and courts should be hesitant to dispense -10- with that right. (Emphasis added; citations and footnote omitted.) Id., 1432-1433. Accordingly, "[a] strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial." Schneckloth v. Bustamonte (1973), 412 U.S. 218, 241, 93 S.Ct. 2041, 2055, 36 L.Ed.2d 854. This strict standard requires that "every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial." Id., 412 U.S. at 242, 93 S.Ct. at 2055. I find that the majority herein now fails to apply this strict standard to the record because if it did, it would conclude that a perfunctory journal entry fails to confirm that appellant's constitutional right to a jury trial was waived in "open court" as required by R.C. 2945.05. See State v. Johnson (1992), 81 Ohio App.3d 482, motion for leave to appeal overruled, 65 Ohio St.3d 1454 (effective waiver of right to jury trial not demonstrated based on silent record since no discussion appeared on record regarding the form presented to defendant, the discussions had between the defendant and his counsel and/or the court, or the time and place of the defendant's signing of the waiver). Cf. State v. Sutton (1979), 64 Ohio App.2d 105, 107 (while an actual hearing in the courtroom or a hearing in chambers will satisfy the "open court" requirement of Crim.R. -11- 48[A], the lack of any hearing "runs afoul of both"). I, therefore, dissent from the majority's rejection of appellant's first assignment of error. Appellant, in the second assignment of error, focuses on the value of the evidence offered by the prosecution. Although appellant references all of the state's witnesses in passing, he basically asserts that Max's testimony was totally unreliable. Appellant describes Max as a "chameleon" with regard to his identification testimony, and argues that his convictions should be reversed because it is this sole identification which led to them. The issue to be resolved by this panel is not whether appellant definitively committed the crimes of arson. Rather, this court is confronted with the issue of whether the state carried the burden of proving beyond a reasonable doubt that appellant committed the crimes. I find that the state sorely did not carry this burden given the setting of the case, thus mandating a new trial for appellant. The majority presents the appropriate and non-exhaustive list of factors that are to be considered when confronted with a manifest weight argument. These factors are: 1. a reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proven at trial; 5. the certainty of the evidence; -12- 6. the reliability of the evidence; 7. any self interests held by a witness; and 8. any vagueness or uncertainty of the evidence, including conflicts created by it. State v. Mattison (1985), 23 Ohio App.3d 10, 14. Although the majority lists these factors, I am of the opinion that the factors were given insufficient consideration by the majority. Simply stating the factors, then coming to a conclusion without any reference to them, defeats the purpose of the factors' existence and merely demonstrates an illusory analysis, hardly the prudence that should be provided by an appellate court. My analysis under the guidelines, on the other hand, amply demonstrates the trial court's error in convicting appellant. It is important to note the state's desired theory of this case because it is this context under which a manifest weight error should be considered by this court. The state sought to connect Froimson to the arson, specifically, through proving that appellant committed an arson-for-hire. The record demonstrates this theory through the following evidence and comments on behalf of the state: 1) During the pre-trial stage of the proceedings, the trial court inquired as to whether there were any plea bargain offers made to appellant. The prosecutor remarked that the state was under the impression that appellant participated in the crimes on behalf of someone else. The state apparently offered a plea bargain which required appellant to cooperate "as to why he would burn down somebody's house with no peculiar interest." -13- 2) The state, in its opening statement, revealed that Eric Froimson owned the property that was allegedly torched by appellant. Froimson paid approximately $10,000 for the property for which he received approximately $23,000 in insurance proceeds following the fire. 3) Howard Myers testified that appellant once told him that he would "torch that one," the residence in question, "for the right price." A complete review of the record reveals that the state offered no evidence that Froimson was connected to the arson or that he hired appellant to commit it, including an exchange of the "right price." As a result, there is no indication as to why appellant committed the arson. Furthermore, Froimson testified that it was illogical that appellant would burn the house down because it provided appellant with a good source of income as the maintenance worker. Moreover, he was not the only witness to testify that appellant was not the type of individual to commit the crimes. Appellant's neighbors, Harry and Lena Kupski, also testified in this respect. Mr. Kupski explained how he and his wife lived in the neighborhood for over seventy-five years. They both knew appellant for approximately two to three years before the fire. Mr. Kupski described appellant as a "tremendous" and "good- hearted guy" who was always willing to help Mr. Kupski with the upkeep of his home. Mr. Kupski testified that, when he spoke with appellant within minutes of the blaze, appellant was acting normally. He closed his testimony with the opinion that appellant could not have committed the arson. Mrs. Kupski held -14- appellant in the same regard as her husband, and also expressed shock that appellant was suspected of the crimes. Max's mother thought appellant committed the offenses, but she characterized this belief as a "gut reaction." There is otherwise no other evidence, direct or circumstantial, that connects appellant to the crimes. Although Lieutenant John Colleran confirmed that the cause of the fire coincided with Max's description of the events, i.e., the introduction of a flammable liquid, Colleran could not confirm Max's identification of the offender. Appellant is, therefore, absolutely correct in stating that the only person to identify him as the arsonist was Max. During the preliminary hearing on August 12, 1994, Max testified that he first saw appellant on August 3, 1994 when appellant stood in the back yard, lighting a cigarette. Max then returned to the house. The next time he looked outside, he saw "appellant" standing on the second step of the residence in question. However, Max testified that he "couldn't see him" because an awning on the house obscured the upper half of the individual's body. When pressed as to whether he knew for sure that appellant was the individual who threw the glass bottle into the house, Max responded, "Yes, because I could tell by the ponytail." Absent from Max's preliminary hearing testimony is any indication that he observed appellant's face when the individual threw the bottle into the house. Rather, the testimony reveals that Max assumed it was appellant who threw the bottle because -15- appellant had a ponytail and was just seen in the back yard, and the individual leaving the house had a ponytail. As was revealed later in Max's testimony, appellant was not the only individual in the neighborhood with a ponytail. The state questioned Max at appellant's July 1995 trial as to whether he had any doubt that appellant was the individual who threw the jar through the front door of the house. Max responded, "No. I am pretty sure. I am sure." (Emphasis added.) The state repeated whether Max had any doubt, to which Max responded, "No." This "I am pretty sure, I am sure" testimony by Max hardly amounts to an identification declared with certainty. The most compelling example of Max's attempts to identify appellant with more certainty occurred during his initial cross- examination. Max curiously could not recall ever testifying in any courtroom before appellant's July 1995 trial. I say "curiously" because Max played "McGruff the Crime Fighting Dog." On August 2, 1994, the day before the fire, the city of Cleveland and the Black Shield Association honored Max for his community service work with the police department and the community relations board. I find it highly incredible that an individual who was so active in "crime fighting" and the community could not recall testifying in a courtroom. Defense counsel nonetheless reminded Max of the preliminary hearing when Max testified that he only identified appellant from his ponytail. Max incredibly admitted that he previously never told anyone that he saw appellant's face because "[t]he detective never asked if I saw -16- his face." Max then offered during cross-examination that he saw the side of appellant's face as appellant left the house. The state miraculously "rehabilitated" Max during re-direct examination. When questioned as to whether he ever changed his testimony that he saw appellant's face, Max responded, "No." However, the fact remains that one cannot change what never existed in the first place, specifically, testimony at the preliminary hearing that Max saw appellant's face on August 3, 1994. Max's re-cross examination included his confession that he was lying on the stand. He clarified his response by stating he was not lying about everything. Re-cross examination continued as follows: Q. Are you lying about seeing his face? A. No. I saw his face when I was crossing the street. Q. Then we have to go back to that. Max, on the evening of the fire your testimony now is much different than it was, that you saw his face when he was leaving the house. A. Right. *** Q. Max, do you have an explanation for why your testimony is different from ten days later than today; do you have any reason why that is different? A. No. Q. You don't really remember what happened, do you? A. Not word for word. *** -17- Q. And which testimony is correct, your testimony from August 12th or today, or is it a mix of both? A. Sort of both. Q. You weren't telling the truth on August 1, 1994? A. Right. Q. You haven't told the truth basically here today? A. Basically, no. Q. And Joe wasn't the only person in this neighborhood who wears his hair in a ponytail, is he? A. No. *** Q. Do you recall from the time you looked out your back door into the alley until the time you looked out the bedroom window how much time had gone by? A. A few minutes. Q. And during that period, Max, you lost sight of the person with the ponytail, didn't you? A. Yes. *** (Emphasis added.) Despite Max's revelation that he lied during his testimony at appellant's trial, he was once again called upon during a second re-direct examination to identify appellant as the arsonist. Max testified that he saw appellant's face as he ran from the house. Max's vacillating testimony formed the basis for appellant's motion for a new trial, a motion denied by the trial court and a motion not even referenced by the majority. I realize that a post-sentence motion for new trial and the concomitant response -18- brief have no bearing on whether appellant's second assignment of error should be sustained on appeal. The motion and response, however, buttress my opinion that appellant's convictions are based upon vague, uncertain and contradictory testimony that was offered by a sole identification witness who admitted to lying on the stand. In an affidavit attached to appellant's motion for new trial, Max averred that his implication of appellant was untruthful. The state countered with a second affidavit from Max. This affidavit essentially provided that Max testified truthfully at appellant's trial, but he was subsequently encouraged to deny the truthfulness at the behest of appellant's son and the threat of personal assault and property damage. I also note that Max specifically referenced pressure from Steven Bartzzak. However, Max testified during cross-examination at appellant's trial that he was not afraid of Bartzzak who was about twelve years old at the time. The problem with Max's second affidavit is that it conflicts with his own trial testimony. Max admitted, while on the stand, that to some degree, he lied during his examination. I fully appreciate that the determination of witness credibility is one primarily left to the trier of fact, here, the trial court. However, this is not the ordinary circumstance where two individuals offer competing versions of events, and the trier of fact is compelled to select one of the versions based upon the credibility of the witnesses. Nor did Max simply offer wavering testimony on a non-crucial or semi-crucial matter. Rather, the -19- trial court was confronted with one identification witness who elaborated on his testimony throughout every stage of the proceedings and admitted to offering false testimony on more than one occasion. I, unlike the majority, cannot ignore the state of Max's identification testimony with regard to whether appellant is the perpetrator of the August 3, 1994 fire. I, therefore, cannot follow the majority's decision to uphold appellant's convictions based upon this identification testimony, and accordingly dissent. In conclusion, the trial court failed to strictly comply with R.C. 2945.05 in accepting appellant's jury waiver since the record inadequately demonstrates that appellant intelligently, knowingly and voluntarily waived this fundamental constitutional right in "open court." Second, the record fails to persuade me that the state carried its burden to prove beyond a reasonable doubt that appellant committed the offenses for which he ultimately faced sentence. I am thus steadfast in the opinion .