COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70505 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES GENTILE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 27, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-332,672 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN GALLAGHER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender SCOTT ROGER HURLEY, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 LEO M. SPELLACY, J.: Defendant-appellant James Gentile appeals from his conviction of a single count of vandalism, R.C. 2909.05, after trial by jury, alleging he was denied effective assistance of counsel due to cumulative errors made by his counsel at trial. Finding no reversible error in the record below, we affirm the decision of the trial court. The record reflects that defendant Gentile was indicted on a single count of vandalism in violation of R.C. 2909.05, alleging that Gentile, by throwing a large rock through the front store window of his landlord's property, caused more than $300, but less than $5000, damage. He was arraigned and pled "not guilty." Jury trial commenced on March 6, 1996. At trial, the state presented evidence from four witnesses to maintain its case. Ed Byszewski, the owner of the building, tes- tified that he and his common-law wife, Mary Rash, lived in the upstairs front apartment of the building, which houses three apartments and has two storefronts on the ground floor. Rash was responsible for the property management and had maintained a "miscellaneous and antique shop" in the storefront for ten years. Defendant Gentile had occupied the downstairs rear apartment for about one year prior to the vandalism occurrence. As landlords, - 3 - Byszewski and Rash initially had no problems with Gentile as a tenant, but, eventually, he began causing problems, which included loud parties, noise, music and too many people at the apartment, causing Rash to serve him with a written eviction notice on July 19. After receiving the notice, Gentile began to threaten and menace Rash daily. She said he tried to burn part of the back porch, and he kicked the railings off the other porch. He spite- fully kicked in the glass window of a door to "assist" Byszewski in gaining entry to one of the store units, he spit in Byszewski's face, he put up signs that claimed the property was "highley vialated" [sic], and he threatened to purposely hurt himself on the property and "own everything that [Byszewski] own[ed]." A few days before the August 3 incident, Gentile claimed to have been hurt on the property, and he named Byszewski, the property owner, as defendant in the personal injury lawsuit. During the early morning hours of August 3, Rash had been standing at her front door for about half an hour because she had not been sleeping well. She had been looking across the street at her elderly mother's house as she was concerned because her mother's lights were on, but she was fearful of going out to check on her mother because of the problems she had been having with Gentile. She heard a crash, opened her front door, and saw Gentile in front of the building, about two feet from the broken window. She watched as he ran around the building. As the lighting was very bright, she was able to see that he was wearing dark shorts, - 4 - tennis shoes and no shirt. She went into Byszewski's room and told him that Gentile had broken the window and she was going to call the police. From there, she heard Gentile's side door shut. Byszewski went out to the front porch, but although he could see that the window was broken, he did not see anyone. Rash then went across the street to call the police. Byszewski went downstairs and walked around the side of the building. Although Gentile's storm door was closed, because his inner door was open, Byszewski was able to see Gentile on the couch with the television on. The police arrived in a matter of minutes in response to Rash's call. Officer Robert Simon of the Cleveland Police Department tes- tified that about 3:00 a.m. on August 3, he and his partner responded to a call of a male breaking into a store. The victim, Mary Rash, told him that she heard the crash and saw the perpetra- tor, defendant Gentile. Simon viewed the scene and saw the rock inside the store. Rash directed the police to Gentile's apart- ment. They knocked loudly on his door, and, eventually, he came out on crutches. The police questioned him and brought him to the front of the building, where he was identified by the victim. Although the defendant stated that he had been asleep since 10:00 p.m., it did not appear to Simon that the defendant had just been awakened by the knocks as he appeared alert. Gentile was advised of his rights and placed under arrest for vandalism. Barbara Manson, who lived across the street from Byszewski's building in an upstairs apartment, was an eyewitness to the - 5 - vandalism and testified for the state. She said that at 3:00 a.m. on August 3, she was awake with her baby when she saw Gentile throw a blunt object through the window of Mary Rash's store and run around the left-hand side of the building. She saw Rash look out her door. As it was very bright, Manson was able to identify the defendant, Gentile, who was wearing shorts, no shirt and no headband, as the person who threw the object. In court, Rash identified the photos taken at the scene and testified that the estimated cost to repair the broken window was $975.00. She valued broken antiques and miscellaneous merchandise from her store at $1400.00. She did not re-open her shop for over one month. Further, in the weeks after the vandalism incident, Gentile's girlfriend and cousin left a dog in the apartment, causing damage due to feces strewn throughout the entire apart- ment. The state rested its case, and the state's exhibits were admitted into evidence, without objection. In his defense, Gentile called three witnesses and took the stand on his own behalf. Joy Kubec, the defendant's cousin, tes- tified that she lived next door to Byszewski's building. She knew that the relationship between Rash and Gentile was deteriorating in July as she was able to overhear the fighting and arguing between them when the windows were open. On August 2, 1995, she had seen Gentile using crutches due to a fall that injured his ankle. During the morning of August 3, she was asleep, but she awakened - 6 - when the police arrived. She had no personal knowledge of the event. John Porter testified that he and his girlfriend had spent the day with Gentile and Tammy Lavey until 6:00 or 7:00 p.m. Gentile was using crutches due to his injured ankle. Porter and his girlfriend returned about 11:00 or 11:30 p.m., but Gentile's lights were off. Porter knocked on the door, but there was no answer. On cross-examination, Porter stated that he had no know-ledge of Gentile's whereabouts during the early hours of August 3, 1995. Next, the defense called Tammy Lavey, Gentile's girlfriend, who lived with him in the apartment. Lavey testified that although her relationship with Byszewski and Rash started out fine in the beginning, it deteriorated due to the poor condition of the apartment. She testified that during the day before the vandalism occurred, John Porter and his girlfriend had been at the apart- ment. Gentile was laid up due to his twisted ankle; he was keeping his foot up with ice on it as it was swollen, and he was still on crutches. Porter and his girlfriend left, and Gentile went to bed about 10:00 p.m. and Lavey about 10:30. Lavey testified that she was a light sleeper and that, to her knowledge, Gentile did not leave the bedroom. The phone woke her when the Cleveland police called and wanted Gentile to come outside to talk. Gentile went out in his shorts, using his crutches. Finally, Gentile took the stand on his own behalf and testi- fied that at the beginning of his tenancy, he got along well with - 7 - both the landlords, Mary Rash and Byszewski, but the relationship started to deteriorate because Rash failed to pay the water bill and the water was turned off. The feuding and threats escalated. Gentile denied that he broke the window in the door in an earlier incident, as the others had testified. He offered his explanation that the fire on the porch was the result of 4th of July fire- works. Gentile further testified that he turned his ankle on the stairs in the building a few days before the vandalism incident. He went to the hospital, where X-rays were taken and he was given crutches. He testified that due to his swollen ankle, he did not leave his apartment the entire day of August 2 and, after visiting with his friends, went to bed at 10:00. Although he heard the knocking on the door, he did not answer the door until the police called on the phone. When he went out to talk to the police, he was wearing his black shorts and using his crutches. He denied throwing the brick through the window. He testified that he had the dog put into his apartment to protect his things because he was unable to go back and move out. The defense rested. After admission of all the defense exhibits except the uncertified copy of the hospital record, closing arguments were had, the jury was charged, and the matter was submitted to the jury. The jury found defendant Gentile guilty of vandalism and further found the damages to be over $300 but less than $5000.00. On March 12, 1996, defendant Gentile appeared - 8 - before the court for sentencing. He then made his statement before the judge, in which he expressed remorse for the window incident and offered to pay for the window and damages. In response to a question by the court asking whether the defendant was then telling the court that he "did throw [the brick] through the window," Gentile responded, "Yes *** it was mostly anger over basically being evicted." The defendant was sentenced to one year at Lorain Correctional Institution. Defendant-appellant timely appeals his conviction and raises the following sole assignment of error for our review: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AND FOUR- TEENTH AMENDMENTS TO THE UNTIED (SIC) STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION BECAUSE OF THE CUMULATIVE ERRORS OF TRIAL COUNSEL. Appellant contends that he was denied effective assistance of counsel due to the prejudicial, cumulative effect of errors made by his counsel at trial. In order to demonstrate a claim of ineffective assistance of counsel, an appellant must show that (1) defense counsel's per- formance at trial was seriously flawed and deficient and (2) the result of the trial would have been different if defense counsel had provided proper representation at trial. While any single error may not rise to the level of prejudice, a reviewing court - 9 - must reverse where multiple errors result in denial of a fair 1 trial. Appellant challenges his counsel's lack of effectiveness due to his deficiencies in the following sub-assignments of error: (A) TRIAL COUNSEL FAILED TO CHALLENGE THE SUFFICIENCY OF THE STATES (SIC) EVIDENCE AT THE CLOSE OF THE STATE'S CASE IN CHIEF AND UPON THE JURY'S VERDICT, THEREBY WAIVING KEY EVIDENTIARY ISSUES ON APPEAL. In this assigned error, appellant complains that his counsel was ineffective due to his failure to move for acquittal pursuant to Crim.R. 29. Further, appellant argues that trial counsel's failure to test the sufficiency of the evidence waived appellant's right to do so on appeal, thus prejudicing the appellant. Appellant was charged with vandalism pursuant to R.C. 2909.05(B)(1), which required the state to show that he knowingly caused serious physical harm to property owned or possessed by Mary Rash and that such property was used in her profession, business, trade or occupation and that the value of the property or the amount of physical harm involved was $300 or more but less than $5,000.00. 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 judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if 1 State v. DeMarco (1987), 31 Ohio St.3d 191. - 10 - 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. It is well established that an appellate court's function, when reviewing the sufficiency of the evidence to support a crimi- nal 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 2 a reasonable doubt. 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 3 of a crime has been proven beyond a reasonable doubt. The standard of review to be applied by the appellate court is 4 set forth at paragraph two of the syllabus in State v. Jenks, which states: *** 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 2 State v. Jenks (1991), 61 Ohio St.3d 259. 3 State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. 4 State v. Jenks, supra. - 11 - crime proven beyond a reasonable doubt. (Citations omitted.) The state's evidence showed that an eyewitness saw the appel- lant throw a rock through the window of Mary Rash's antique store. The state further presented evidence that the property that was damaged, the store window and the broken items, was necessary for Mary Rash to engage in her profession. Further, the state pre- sented evidence that the value of the property or the amount of physical harm caused by this act of vandalism was more than $300 but less than $5000.00. Accordingly, when we view the evidence in a light most favor- able to the state, as we must, we find that a rational trier of fact could have found that sufficient evidence existed to prove each element of the crime as charged beyond a reasonable doubt. Therefore, it was not error for trial counsel to fail to challenge the sufficiency of the evidence where the record reflects that the evidence presented by the state was sufficient to prove each element of the crime. (B) TRIAL COUNSEL FAILED TO OBJECT TO "OTHER ACTS" EVIDENCE ADMITTED IN VIOLATION OF EVID.R. 404(B), THEREBY WAIVING KEY EVI- DENTIARY ISSUES ON APPEAL. In this assigned error, appellant complains that trial coun- sel permitted evidence of his "other acts" to be admitted without objection at trial and in violation of Evid.R. 404(B), thereby waiving key evidentiary issues on appeal. Specifically, appellant complains that the "litany" of other acts presented without - 12 - objection evidences his trial counsel's profound lack of under- standing of the prejudicial effect. The record reflects that the court gave the proper limiting instruction regarding the "other acts" evidence. The jury should 5 be presumed to have obeyed this instruction. If such error occurred in the admission of the "other acts" evidence, such error can be considered harmless error since overwhelming direct evi- dence established the appellant's guilt. Accordingly, we cannot find that counsel's error prejudiced the appellant here, rendering his representation ineffective. (C) TRIAL COUNSEL FAILED TO OBJECT TO HEARSAY ADMITTED IN VIOLATION OF THE RULES OF EVIDENCE, THEREBY WAIVING KEY EVIDENTIARY ISSUES ON APPEAL. In this assigned error, appellant complains that hearsay testimony was admitted into evidence without objection. Specifi- cally, appellant contends that during the testimony of Mr. Byszewski, the state elicited hearsay statements that Byszewski's common-law wife, Mary Rash, told him that the appellant had broken the storefront window. Hearsay is defined in Evid.R. 801 as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 802 governs the admissibility of hearsay evidence and 5 State v. Franklin (1991), 62 Ohio St.3d 118. - 13 - indicates that hearsay is inadmissible in the absence of an exception. No exception is claimed here. Errors relating to the trial court's admission of hearsay must be reviewed in light of Evid.R. 103(A) and the standard established in Crim.R. 52(A), providing that such errors are harmless, unless the record demonstrates that the errors affected a party's 6 substantial right. In determining that an error in the admission of evidence is harmless, the reviewing court must find that there is no reasonable possibility that the evidence may have contributed to the defendant's conviction. In the matter sub judice, the record demonstrates that the declarant of the improperly-admitted hearsay statement, Mary Rash, testified at the trial in the state's case and was cross-examined by counsel for appellant. Rash testified that when she heard the window smash, she looked out the door and saw appellant in front of the building, about two feet from the broken window. She then ran into Byszewski's room and told him, "Gentile broke the window. I'm going to call the police." The offending hearsay statements made by Byszewski were re- peated by the declarant in her direct testimony. The appellant had the opportunity to thoroughly cross-examine the declarant as to her statements. We can conclude, therefore, that the admission of this hear- say statement was harmless beyond a reasonable doubt. Accordingly, 6 State v. Sorrels (1991), 71 Ohio App.3d 162. - 14 - it cannot be said that the failure to object to this evidence was prejudicial to the appellant. (D) TRIAL COUNSEL FAILED TO OBJECT TO UN- AUTHENTICATED AND INADMISSABLE [SIC] EXHIBITS OFFERED BY THE STATE, AND FAILED TO OBJECT TO TESTIMONY THEREON, THEREBY WAIVING KEY EVIDENTIARY ISSUES ON APPEAL. Appellant here complains that exhibits that were "unauthen- ticated" and, therefore, inadmissible were admitted as a result of his trial counsel's failure to object. Specifically, the appellant complains that the state offered into evidence an un-authenticated estimate of cost for the window repair and the victim's unauthenticated handwritten statement of damages caused by alleged vandalism of the appellant. A determination of the value of damaged property is required for a conviction pursuant to the vandalism statute, R.C. 2909.05. When a person is charged with a violation of R.C. 2909.05(B)(1)(a), as the appellant here, then, pursuant to R.C. 2909.11, the trier of fact shall determine the value of the property or amount of physical harm and, if a guilty verdict is returned, shall return that finding as part of the verdict. The statute further states that "[i]n any such case, it is unnecessary to find or return the exact value or amount of physical harm, and it is sufficient if the finding and return are to the effect that the value or amount of physical harm was either: *** (C) three hundred dollars or more but less than five thousand dollars." - 15 - A review of the record before us shows that testimony was received into evidence that the window of Mary Rash's store was broken and miscellaneous antique and merchandise items were smashed. Mary Rash testified that she sought and received an estimate of $975 for the repair of the window. Further, the approximate value of the antiques and miscellaneous items was cal- culated by their owner, Mary Rash, to be $1400.00. "Generally, authentication or identification is satisfied by evidence sufficient to support a finding that the matter in ques- tion is what its proponent claims. Evid.R. 901(A). The common manner of identifying a document is through testimony of a witness 7 with knowledge." In this case, the witness, Mary Rash, identified the damage estimate that she both requested and received from Elmo & Associ- ates, which indicated the approximate cost of the repair for the store window. She verified her own handwritten document itemizing the values of the damaged items. Sufficient evidence was presented to authenticate these exhibits; the estimate and the handwritten list were, in fact, what they purported to be. Further, sufficient testimony was presented by the testimony of Mary Rash to support the jury finding that the damage as a result of the vandalism was "more than three hundred but less than five thousand dollars." 7 St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App.3d 155. - 16 - Accordingly, counsel's failure to object to properly authen- ticated exhibits was not error. (E) TRIAL COUNSEL FAILED TO PROPERLY AUTHEN- TICATE HIS OWN DEFENSE EXHIBITS, THEREBY RENDERING THEM INADMISSIBLE. In this assigned error, appellant complains that trial coun- sel failed to properly authenticate his medical records, rendering them inadmissible to corroborate his claim of his ankle in-jury. Specifically, appellant contends that these records demonstrate that a foot injury occurred prior to the incident that would have prevented him from running, as the witnesses testified the perpetrator did. The record reflects that the appellant was able to place evidence of his ankle injury before the jury. Testimony was eli- cited from the appellant, himself, describing his ankle injury, and this testimony was further corroborated by the testimony of each of the witnesses for his defense. The medical record would have provided cumulative evidence of the ankle sprain that the appellant had incurred, and, as such, it cannot be said that the omission of his medical records prejudiced the appellant, rendering his counsel's representation ineffective. Accordingly, such error was harmless. Therefore, from the foregoing analysis of each of the appel- lant's allegations of his counsel's ineffective performance, it cannot be said that appellant's trial counsel's performance was constitutionally deficient or that the errors complained of by the - 17 - appellant here, even when viewed cumulatively, prejudiced the appellant and denied him a fair trial. Appellant here is unable to show that there exists a reasonable probability that, were it not for counsel's errors, the result of his trial would have been different. Accordingly, the appellant's sole assignment of error is not well taken, and the decision 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 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. JOSEPH J. NAHRA, P.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE LEO M. SPELLACY 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 .