COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70022 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN CURRIE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 13, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-322,861 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LOUIS BRODNIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant-appellant John Currie appeals his conviction of robbery in violation of R.C. 2911.02 following a bench trial. Defendant asserts that his jury waiver was invalid, rendering the lower court without jurisdiction to hear the case without a jury. Further, defendant contends that sufficient evidence did not exist to overcome his motion for acquittal pursuant to Crim.R. 29 and that his conviction was against the manifest weight of the evi- dence. Finding no error in the court below, we affirm its deci- sion. The facts giving rise to this appeal are as follows. David Leach accused John Currie of robbing him of his coat, pager, keys and money on February 17, 1995, about 3:00 in the afternoon near the corner of East 139th Street and Harvard Avenue. Currie claimed in his alibi defense that he could not have committed the alleged robbery as he was in downtown Cleveland and not near the scene of the crime at the time the victim and witness said the robbery occurred. On May 1, 1995, John Currie was charged in a one-count indictment with robbery and a specification for a prior aggravated felony. On September 28, 1995, Currie executed in open court his - 3 - written waiver of his right to a jury trial. This matter then proceeded to trial before the court. The state presented three witnesses in support of its case. First, Robert Hamilton, age fifteen, testified that he witnessed the robbery. Hamilton was a student at the same school as the victim, and he knew him from school. Hamilton said that on Friday, February 17, 1995, after school, between 2:45 p.m. and 3:00 p.m., he waited with two of his cousins at the bus stop at 139th and Harvard to catch a bus toward downtown. At that time, he saw David Leach on the other side of the street. He witnessed an assailant throw Leach to the ground, rip off his coat, and take his pager. Hamilton identified Leach's assailant as John Currie, Jr. Hamilton testified that as Currie chased Leach, two other people jumped out of a gray car and chased the victim. Currie then got onto the same bus as Hamilton, and he was able to get a "good look" at Currie as Currie passed by on his way to the back of the bus. Hamilton did not see Currie carrying either the victim's coat or pager when he got on the bus. The victim, David Leach, testified that he is a fifteen-year- old seventh grader. Immediately after school on February 17th, he went to his sister's house. From there, he went to the bus stop about 3:00 p.m. He saw John Currie, whom he had known for a year, walking down the street. He and Currie had friends in common and had not had trouble until this incident. In fact, Currie had given Leach a tattoo last summer -- "HVD," indicating "Harvard." Leach - 4 - said Currie confronted him with the allegation that he and his friend, Andy, were "messing" with Currie's girlfriend, Tiffaney. When Leach denied involvement with Tiffaney, Currie grabbed him by the neck, slammed him to the ground and pulled off his blue triple- fat-goose coat. Currie went through Leach's pants pockets and took his pager, keys, and $27.00. Leach said that Currie told him to warn "Andy" of what Currie had just done to Leach. Then, a car pulled up, and some men jumped out and started chasing Leach as he ran back to his sister's house. When he reached his sister's house and told her about the robbery, she went to Harvard but did not see anything. He stated that this all happened about 3:15 p.m. Leach left his sister's house, went to Andy's house, and called the police, who responded and took his statement. On cross- examination, Leach admitted that he knew an individual known as "Big Dre." As its final witness, the state called Officer Curtis Miller of the Cleveland Police Department, who testified that he received the assignment and investigated this incident about 4:15 p.m. Officer Miller said that David Leach stated that while he was waiting for a bus at 139th and Harvard, John Currie, Jr. robbed him of his jacket, his keys, a pager and money. The officer noted that Leach did not have apparent injuries and did not need medical attention. Officer Miller then went to Currie's home and talked to both the defendant and his parents. John Currie, Jr. told the officer that at the time of the robbery, he was downtown cashing a - 5 - check and had nothing to do with the incident. Currie showed him a bus transfer to verify his story. Officer Miller then turned his report over to detectives. The state rested its case, and the defense moved for acquit- tal pursuant to Crim.R. 29. The motion was denied by the court. The defense called seven witnesses. First, Tiffaney Herring, the girlfriend of John Currie, testified that on the afternoon of the robbery, the police came to her home looking for Currie. As a result, she paged him and he called her back, using a cellular phone from a bus. She advised him to get a transfer to prove his whereabouts. He called her right back and told her he got the transfer. She said that a month after the robbery, on March 17, 1995, a group "jumped" Currie in front of her house and a police report was made. The chief schedulemaker of GCRTA, George J. Esner, Jr., identified the bus schedule in effect for the Number 15, Union- Harvard, bus line. He verified that the scheduled times for the ride from East 131st Street to Tower City would take approximately forty-six minutes and that from downtown heading east to East 131st, the ride would take forty minutes at that time of day. Esner identified the defense exhibit as a transfer issued at 4:49 p.m., February 17, 1995, by an east-bound Number 15 bus. Next, the defendant's father, John Currie, Sr., testified that when he arrived home about 5:15 p.m. on February 17th, his son, John Jr., was not yet home. After John Jr. arrived home, two - 6 - police officers came to the house and told him his son John had "jumped" somebody. John Sr. testified that since his son's previous involvement in a criminal incident with "Big Dre," John Jr. no longer "hung" with the those "guys" and had become respon- sible for assisting in the running of the family business. In March, the month after the alleged robbery occurred, his son was attacked and put into the hospital. On cross-examination, Mr. Currie admitted that he did not know where his son, John Jr., was at 3:00 p.m. the afternoon of February 17, 1995. A representative of Area Temps, Jay Setti, testified that the defendant, John Currie, Jr., was employed by Area Temps. Setti explained the procedure by which employees pick up their pay- checks. He said that a sign-in sheet was affixed to each payroll document and employees then signed for their checks on the date that the checks were issued. There was no indication on the sign- in sheet as to the time Currie signed for his check on February 17th. Setti could not verify Currie's location at 3:00 p.m. on February 17, 1995. Faith Stewart, the assistant manager of check cashing at the downtown Woolworth store, identified Currie's check-cashing card, which indicated that Currie cashed his check at the Woolworth store on February 17, 1995. She identified the photo taken of Currie with his Area Temps paycheck in the amount of $129.15. Stewart testified that there was no way to determine the time the photo of defendant Currie was taken on that day. - 7 - Defendant John Currie, Jr. took the stand on his own behalf. He testified that in three previous cases, he had been convicted of two strong-armed robberies and carrying a concealed weapon. He had a previous criminal involvement with Andre "Big Dre" Jackson. After a criminal matter involving "Big Dre," he went to Detroit on probation. Because of that incident, he had a falling-out with his former friends, including the victim David Leach, because they believed that he "snitched" on Jackson, causing his incarceration. Currie testified that he had never had an altercation with David Leach. The defendant testified that on February 17, 1995, he planned to go downtown to pick up his pay check from Area Temps. He left a little before 2:00 p.m. and caught the No. 15 bus at the bus stop at 131st and Miles. According to the bus schedule, Currie believes that he probably caught the 2:14 p.m. bus, which, according to the schedule, would arrive downtown close to 3:00 p.m. He disembarked at Tower City and walked to the Area Temps office, where he arrived about 3:10. At the office, about 3:30 or 3:45 p.m, he stood in line, showed his I.D. and signed for his check. He then walked to the Woolworth store, where he cashed the paycheck. He went into a hat store at 4th Street and bought a hat. After purchasing the hat, he boarded an east-bound No. 15 bus at 4th Street. While on board the bus, he received a "911" page, indicating an emergency, from his girlfriend, Tiffaney. He called her from the bus on a cellular phone. She recommended that he get a transfer to prove - 8 - where he was at the time because the police had been questioning her about his whereabouts. He got the transfer and called Tiffaney a second time to inform her that he had it. Although the time of the transfer indicated 4:49 p.m., the record of the cellular calls indicate that the calls were made at 4:56 and 4:59. Currie speculated that the times were inaccurate because the clocks may have been wrong. He got off the bus at about 5:00 p.m. and went home. When the police arrived at his home that evening, he spoke with them. He denied seeing David Leach that day, taking his coat, or robbing anyone. He stated that between the hours of 3:00 p.m. and 4:00 p.m. on February 17th, he was downtown. Last, the defense called Denise Pollard, an employee of the Witness/Victim Service Center of Cuyahoga County and the City of Cleveland Prosecutor's Office. Pollard testified that she became involved with defendant Currie through mediation services that are provided by the prosecutor's office because Currie and a group of people from the same neighborhood had been involved in two inci- dents: first, eggs had been thrown at Tiffaney Herring's house by the people who lived next door; and second, in March, 1995, Currie had been the victim of an assault by members of this group. Although she recalled David Leach's name being mentioned, she could not recall the details of his involvement. She said that Currie had contacted her about the February 17th incident and explained that members of the group were trying to get him into trouble. - 9 - At the close of the defense case, the defendant renewed his Crim.R. 29 motion for acquittal. The motion was denied by the court. On September 29, 1995, the court found the defendant guilty of robbery but entered a not guilty finding as to the specification. Defendant Currie was sentenced on October 5, 1995, to a term of incarceration of three to fifteen years. A motion for delayed appeal was granted by this court on January 6, 1996. Defendant-appellant Currie presents three errors for our review. I. THE TRIAL COURT WAS WITHOUT JURISDICTION TO HEAR THE CASE WHEN R.C. 2945.05 WAS NOT STRICTLY COMPLIED WITH BECAUSE THE DEFENDANT WAS NOT PERSONALLY ADDRESSED AS TO HIS DESIRE TO WAIVE A JURY. Appellant contends with this assigned error that where the court failed to maintain a colloquy regarding his desire to waive a jury, the court failed to strictly comply with the statutory requirements of R.C. 2945.05, rendering the trial court without jurisdiction to hear the case without a jury. Jury waivers require strict compliance with R.C. 2945.05, without which the trial court is without jurisdiction to proceed to 1 trial without a jury. R.C. 2945.05 requires that: 1 State v. Pless (1996), 74 Ohio St.3d 332; State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261; State v. Coleman (May 9, 1996), Cuyahoga App. No. 69202, unreported. - 10 - 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 con- sult with counsel. Such waiver may be with- drawn by the defendant at any time before the commencement of the trial. The supreme court in State v. Pless, supra, paragraph one of the syllabus, has instructed us that strict compliance with R.C. 2945.05 " *** mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. ***" Here, however, the appellant requests us to require more. Appellant contends that because he was not questioned in open court as to whether it was, in fact, his desire to waive a jury, the court has failed to strictly comply with the statute. 2 The supreme court in State v. Jells analyzed the question of whether an inquiry conducted by the court that did not determine whether he was fully apprised of all the implications of the waiver 2 State v. Jells (1990), 53 Ohio St.3d 22. - 11 - of his right to a jury trial was adequate to fulfill the requirements of the statute where the defendant signed the waiver outside the court but in the presence of his attorney. The court in Jells questioned the defendant as to whether he signed the waiver of his own free will but did not further interrogate the defendant as to whether the waiver was intelligently, voluntarily, or knowingly waived. The Jells court, finding no error in the lower court, held, in paragraph 1 of the syllabus: There is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. In dicta, the Jells court went on to say that "[w]hile it may be better practice for the trial judge to enumerate all the possi- ble implications of a waiver of a jury trial, there is no error in the trial court's failure to do so." Appellant relies on this dicta in Jells and on State v. 3 Walker for the proposition that a court must conduct a colloquy with a defendant 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 con- stitutional right. The Walker court concluded that: *** the defendant must sign a written state- ment affirming that he is knowingly and vol- untarily waiving his constitutional right to a trial by jury, uninfluenced by promises or threats of any kind. Additionally, there must occur in open court a colloquy between the 3 State v. Walker (1993), 90 Ohio App.3d 352, 358. - 12 - trial judge and the defendant himself, extensive enough for the judge to make a rea- sonable determination that the defendant has been advised and is aware of the implications of voluntarily relinquishing a constitutional right. Appellant's reliance on both Jells and Walker is misplaced. The syllabus of Jells tells us clearly that an interrogation of the defendant is not required, and the facts of Walker make it distinguishable from the matter sub judice. In Walker, the question before the court was whether the statutory requirement that the waiver be "made" in open court actually required the defendant to execute or sign the waiver in open court. Defendant Walker did not sign his jury waiver in open court, and the language of the waiver, while substantially close to the statutory language, did not strictly conform to the statute. Walker complained that in order for the waiver to be "made" in open court, an actual signing of the written document before the trial judge in open court was necessary, and the trial court did not, therefore, strictly comply with the statute. The court of appeals rejected Walker's argument. The court in 4 its decision relied on Jells and State v. Morris , which stated "a written waiver signed by the defendant prior to trial and followed by a one sentence inquiry by the trial judge is sufficient to 4 State v. Morris (1982), 8 Ohio App.3d 12, 14. - 13 - 5 insure defendant's rights." The Walker court determined that where the written waiver was signed by the defendant prior to the trial and not in open court, in light of both Jells and Morris, the provision requiring the waiver to be "made" in open court was satisfied where, in addition to the signed writing, there was further evidence on the record which "reaffirm[ed] orally" that the defendant had voluntarily made an informed waiver of his con- stitutional right to a trial by jury. Unlike the defendant in Walker, appellant here signed his jury waiver in open court, thereby obviating the necessity of a colloquy to orally "reaffirm his waiver." In the instant case, it is undisputed that the jury waiver was in writing, signed by the appellant in open court, properly filed with the court and made a part of the record. We thus find that the record before us reflects strict compliance with each of the elements of the statute as required by State v. Pless and, accordingly, find no error. 5 See Walker at 357 when the court rejected Walker's argument that the execution of the waiver needed to be made exclusively in open court. - 14 - II. JOHN CURRIE'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN THE TRIAL COURT IGNORED ALIBI EVIDENCE WHICH RESULTED IN THE CONVICTION BEING NOT SUPPORTED BY SUFFICIENT EVIDENCE. Appellant complains that the court improperly overruled his motion for an acquittal pursuant to Crim.R. 29, alleging that the evidence presented was insufficient to support his conviction of robbery, R.C. 2911.02. Specifically, appellant contends that had the trial court not "ignored" the alibi evidence presented by the defense, the alibi evidence would have created reasonable doubt requiring acquittal. Appellant's argument is without merit. A motion for acquittal is governed by Crim.R. 29(A), which states in pertinent part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judg- ment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. Pursuant to Crim.R. 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 6 of a crime has been proven beyond a reasonable doubt. The 6 State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. - 15 - 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 7 reasonable doubt. The record reflects that the state presented evidence from an eyewitness to the robbery and from the victim, who both testified that on the afternoon of February 17, 1995, at a time between 2:45 and 3:15, appellant John Currie, Jr. slammed Leach to the ground and robbed him. The alibi evidence offered by the defense did not provide evidence of an alibi for the defendant during the time frame when the robbery was committed. Further, the court clearly did not ignore the alibi evidence presented by the defense but stated, "I believe in the truthfulness of the alibi witnesses, including the father and the other persons who testified, but they do not cover the period of this crime. They do not account for the whereabouts of the defendant at the time the alleged assault occurred. The elements as charged, therefore, in the indictment have been proved beyond a reasonable doubt ***" In view of the record before us, we find that the trial court did not ignore the alibi evidence presented by the defense and further find that the evidence presented against the appellant, when we view this evidence in the light most favorable to the prosecution as we are required to do, was sufficient to overcome the Crim.R. 29 motion for acquittal as reasonable minds could reach 7 State v. Jenks (1991), 61 Ohio St.3d 259. - 16 - different conclusions as to whether each element of the crime had been proven beyond a reasonable doubt. Therefore, we find that the trial court did not err when it denied the Crim.R. 29 motion for a directed acquittal. Accordingly, appellant's second assignment of error has no merit and is overruled. III. THE VERDICT FINDING JOHN CURRIE GUILTY OF ROBBERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Appellant complains that the verdict was against the manifest weight of the evidence presented. Specifically, appellant con- tends that the inconsistencies in the testimony of the victim and the eye-witness, combined with the near impossibility of the appellant being at the location at the time of the crime, make the conviction one which warrants a reversal. 8 In State v. Martin , the court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The Martin court, at p. 175, stated as follows: 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 8 State v. Martin (1983), 20 Ohio App.3d 172. - 17 - trial ordered. *** See, Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The 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 proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. Moreover, the weight of the evidence and the credibility of 10 the witnesses are primarily for the trier of fact. Appellant argues that the court's acceptance of the theory of the prosecution that he rode the bus downtown and back and cashed his paycheck between 3:15 and 4:49 p.m. on February 17, 1995, is incredible. Further, appellant argues that the testi-mony of David Leach and Robert Hamilton is contradictory. Appellant contends 9 State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442, 64443, unreported, citing State v. Mattison (1985), 23 Ohio App. 3d 10. 10 State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. - 18 - that Leach's testimony regarding his friendship with Andre Jackson leaves a question about the quality of Leach's truthfulness. Appellant contends that the record is replete with evidence that is both uncertain and unreliable. Appellant contends that the testimony of both Hamilton and Leach was self-serving. Finally, appellant argues that the evidence presented was vague, uncertain and conflicting and does not fit together in a logical pattern. The record reflects that evidence was presented by the state from two witnesses who identified the appellant as the person who robbed David Leach. Although some discrepancy existed in the exact direction from which the assailant came, neither witness faltered in his identification of the appellant. The precise time of the robbery was not able to be determined from the testimony, and, therefore, it cannot be said that it would be "incredible" for the appellant to have been present at the scene of the crime and to have been able to go downtown, pick up and cash his paycheck, and be on his return trip at 4:49 p.m. Further, we do not see the testimony of the victim as having been impeached nor do we see the testimony presented by either the victim or the eyewitness as uncertain, unreliable, or fragmentary. Accordingly, upon review of the entire record before us, when we weigh the evidence and all reasonable inferences and when we consider the credibility of the witnesses, we do not find that the trier of fact so clearly lost its way and created such a manifest - 19 - miscarriage of justice in resolving the conflicts in the evidence that the conviction must be reversed and a new trial ordered. Judgment affirmed. - 20 - 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 Cuyahoga County Court of Common Pleas 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. JAMES M. PORTER, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .