COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70743 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JERRY HENDERSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 15, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-333672 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES PATRICIA J. SMITH, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue, N.E. FEDELE DeSANTIS, Assistant Cleveland, Ohio 44103 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Jerry Henderson appeals from his convictions following a jury trial on two counts of aggravated burglary (R.C. 2911.11); two counts of impersonating a police officer (R.C. 2921.51); one count of kidnapping (R.C. 2913.02) and one count of attempted grand theft (R.C. 2913.02). Defendant claims the trial court abused its discretion in not granting a continuance of the trial after amendments to the indictment and in allowing a four year old child to testify to defendant's identity. Defendant also contends his convictions were against the manifest weight of the evidence and not supported by sufficient evidence. We find no error and affirm. The charges in this case arose out of an alleged scam and confidence game implicating the defendant in various financial crimes involving two elderly and gullible black women, Brooksy McCain and Leila Burgin. The scheme alleged is a variation of a street confidence game known as the "pigeon drop," a criminal device with which this Court is not totally unfamiliar. See State v. Jerry Henderson (August 7, 1975), Cuyahoga App. No. 33702, unreported at 1; State v. Devontenna (Feb. 22, 1979), Cuyahoga App. No. 38392, unreported at 2. On October 6, 1995, Brooksy McCain went shopping at the Savmore Food Mart located at 4127 E. 131st Street in Cleveland. As Ms. McCain exited the store, she was approached by an unidentified black woman who engaged McCain in a conversation about a lost - 3 - wallet she found in the parking lot. McCain denied it was her wallet. A second black woman joined the conversation and they looked inside the wallet. McCain observed what appeared to be a large sum of money. The first woman acted like she wanted to turn the wallet in to the store but believed that it was drug money and the store would end up keeping the money. The first woman suggested a plan whereby the large sum of money from the wallet would be matched with an equal amount of money that the three of them would put up, one third each. They would then take the money to the bank where the woman claimed she worked and the "transfer" for smaller bills would occur. The three of them drove to the Huntington Bank located at Van Aken Boulevard and Farnsleigh Avenue where McCain presented her MasterCard and received a $5,000 cash advance, her maximum credit. McCain returned to the car and they drove her back to the parking lot of the Savmore Food Mart. The first woman directed McCain to go to the nearby check cashing store and wait for a "banker" who owned the check cashing store. She was instructed to wait for the banker at the store; that he would meet McCain there and deliver her share of the wallet money. McCain wrote her address on the envelope that contained her $5,000 and gave it to the women. McCain waited for the banker for some time. After a while, she searched unsuccessfully for the women's car on the street and - 4 - in the parking lot. Finally, she realized that she was conned out of $5,000 and, due to embarrassment, did not tell her family or report the incident to the police. On December 1, 1995, Leila Burgin went shopping at the Revco Drug Store located at 6501 Howard Avenue in Cleveland. After she left the store and went to her car she was approached by a black woman who was crying. She told Burgin that she was from Mississippi and came to town to attend her brother's funeral. She was stranded because she had used all her cash and did not have bus fare back to Mississippi. She had a check, but no identification. She asked Burgin to help her cash the check. Burgin initially told her she could not help her. As Burgin continued the conversation, a second black woman came up and offered to help, claiming she was a social worker. Eventually the women prevailed upon Burgin to give the first woman the money. They got in Burgin's car and she drove them to the National City Bank on Broadway Avenue. Burgin withdrew $300 from her account while the women waited in the car. Burgin gave the first woman $200, keeping $100 for herself. The donee assured Burgin that once she returned to Mississippi she would send her the money. The women had Burgin's address. Burgin then dropped off both women on Broadway Avenue and did not see them again. At the time, Burgin did not suspect that she was conned, believing that the first woman would send her the money. She neither informed the police or her family. - 5 - At about 11:00 a.m. on December 4, 1995, defendant parked in front of Burgin's home and walked up the driveway accompanied by a black female. He was observed by Homer Turner, a neighbor shovelling snow next to Burgin's driveway. As defendant passed by, he nodded to Turner. Turner observed defendant walk up Burgin's driveway to the side door. Thinking that Burgin knew defendant, Turner paid no further attention and continued his shovelling. The defendant and the black female with him rang Burgin's doorbell and knocked on her door. Burgin answered the door. Burgin thought she recognized the woman as the "social worker" from the December 1st episode. As Burgin opened the door, defendant flashed a false police badge and identified himself as a police detective. He claimed that he was investigating the women that she met on December 1st. The defendant and the woman walked into Burgin's living room and began to talk about her December 1st encounter with the women. The conversation lasted about ten minutes before it was abruptly ended by neighborhood children who came to Burgin's door and said the police were in the neighborhood. Defendant and his female companion quickly left Burgin's home. After the defendant left, Burgin called her brother and told him what had happened. At approximately 12:20 p.m. on December 4th, Fourth District Patrolmen Stephen Straka and Ann Marie Ziska received a radio assignment to respond to 4294 E. 126th Street - female victim of a financial crime and a male impersonating a police officer. Ziska - 6 - and Straka interviewed Burgin and spoke to Homer Turner who said that he got a good look at the defendant and could identify him. On December 5, 1995, at approximately 10:00 a.m., Brooksy McCain, who lived at 3556 E. 114th Street with her granddaughter, Yolanda Belser, and her great grandson, Delvonte Conner, received a telephone call from an individual who identified himself only as the police. Yolanda was not home at the time; McCain was baby sitting Delvonte. McCain was asked by the caller if the lieutenant had arrived yet. She answered that he had not. While McCain was still on the phone, the doorbell rang. McCain put the phone down and answered the door. Defendant then flashed a false police badge and identified himself as Lt. Stevens. McCain allowed the defendant to enter her home and talk to the unidentified telephone caller he referred to as "lieutenant." When defendant finished his telephone conversation, he explained that the police had recently conducted a raid; that during the raid, a woman was arrested; and that the woman indicated that she had swindled McCain out of $5,000. Having gained McCain's confidence with this information, defendant stated that McCain's bank was working with the police to capture the other person involved in the scam. He asked McCain's help and if she had any money in the house. McCain gave him $200 which he placed in an envelope. Defendant then got on the phone and read off the serial numbers - 7 - from the money. He laid the money envelope down for a moment and McCain reclaimed it. Defendant then asked McCain to write a check in the amount of $3,000; it was to be used as bait to apprehend the woman who had swindled her; that a stop order on the check would protect her for one hour. To further protect her money, McCain was told she would have to go to the bank and cash her check. She was told the bank was working with the police in this matter. McCain informed the defendant that she could not go to the bank with him because her great grandson, Delvonte, was with her. Defendant became "upset" with McCain and accused her of being uncooperative. Defendant put McCain on the defensive, giving her the impression that she was also a suspect, working with or protecting the suspect women. McCain and Delvonte got dressed and drove with defendant to the bank in McCain's car. McCain and Delvonte entered the bank and cashed the $3,000 check. Defendant remained outside. When she exited the bank, defendant was gone. McCain drove home with the $3,000. Her granddaughter, Yolanda Belser, had returned home. When McCain returned from the bank, she realized that the defendant had attempted to swindle her. McCain told Belser about the swindle. While she was relating the facts of the swindle to Belser, the phone rang. Belser answered the phone and the caller identified himself as Lt. Stevens. Belser refused to let him speak to McCain. Defendant said he would call back but never did. - 8 - McCain and Belser returned to the bank and redeposited the $3,000 into McCain's checking account. Belser called the police and reported the scam. On December 7, 1995, Patrolmen Ziska and Straka responded to McCain's home on a call received on December 5, 1995 of a female victim of a con and a male impersonating a police officer. They questioned Belser and McCain. McCain gave Ziska the envelope defendant used to contain the $200 she gave him. Cleveland Det. Joseph Chojnowski of the Financial Crimes Unit was assigned to investigate the McCain and Burgin complaints. On January 11, 1996, Chojnowski interviewed Homer Turner, the neighbor shovelling snow, who immediately picked defendant out of a ten photograph array. On January 12, 1996, Chojnowski interviewed Ms. Burgin who also picked defendant out of the ten photo array. Burgin was also shown a photo array of female suspects. Out of the array of 12 photographs, she picked out Willa Henderson, defendant's wife, and Eunice Hatcher as the women who swindled her. On January 15, 1996, Chojnowski interviewed Ms. McCain who picked defendant out of the array of ten photographs. McCain could not identify any of the female suspects. Yolanda Belser suggested that the array of male suspects be shown to her son, Delvonte. Delvonte picked defendant out of the photo array his mother showed him. - 9 - On January 18, 1996, at 7:30 a.m., Chojnowski, Det. Sieniawski and several other members of the Financial Crimes Unit responded to 602 E. 103rd Street to execute arrest warrants for defendant and his wife, Willa Henderson. In the course of his arrest, the officers found a police badge holder which contained a facsimile of a Cleveland Police Department badge and the defendant's driver's license. They also found a police scanner next to defendant's bed and a portable scanner in his van. On February 7, 1996, defendant was charged in a nine count indictment. On February 12, 1996, defendant was arraigned and entered a plea of not guilty to all charges. The case was set for pretrial on three separate dates by the trial judge. The court granted the State's motion to amend the indictment by changing dates from December 6 to December 5. During each pretrial, the State provided discovery and information to defense counsel. On April 8, 1996, a jury was empaneled and the trial of this matter was commenced on the amended indictment. On April 10, 1996, after the State completed the presentation of its case and rested, the trial court granted the defendant's motion for a Crim.R. 29 acquittal on five counts. The defense did not call any witnesses or present any evidence. On April 11, 1996, the jury returned a verdict of guilty as to the remaining renumbered counts, i.e., two counts of aggravated burglary; two counts of impersonating a police officer; one count - 10 - of kidnapping; and one count of attempted grand theft with furthermore clauses. The defendant was sentenced accordingly. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN AFTER THE STATE AMENDED THE DATE OF THE OFFENSE ON THE INDICTMENT IT DENIED THE DEFENSE MOTION FOR A CONTINUANCE TO SUBPOENA DEFENSE WITNESSES THEREBY DENYING THE APPELLANT HIS CONSTITUTIONALLY GUARANTEED DUE PROCESS RIGHT TO A FAIR TRIAL. This assignment of error is without merit. Near the close of the State's case, the defendant asked to address the court on his own outside the presence of the jury. A sidebar discussion was had where defendant requested new counsel. Defendant expressed dissatisfaction with the representation supplied to him by the Public Defender's Office. Defendant complained that his counsel refused to present evidence of his alleged alibi. Defendant also requested time to present the alleged alibi evidence. The trial court denied both requests. Numerous pretrials were had between the State and defense counsel prior to the commencement of trial. During the later stages of the pretrial phase, both parties entered into discussions relative to a possible notice of alibi. (Tr. 250-251). At least seven days prior to the trial date, the State indicated to defense counsel that it intended to amend counts 6, 7, 8 and 9 of the indictment from December 6, 1995 to December 5, 1995. (Tr. 250). During a subsequent discussion with defense counsel, the State was - 11 - informed that the evidence with regard to a possible notice of alibi was investigated and that one would not be filed by the defendant. (Tr. 250-251). Defense counsel stated to the court: MR. STANARD: We had a lot of discussions over the course of time relative to alibis, your Honor, given the various dates in this case. There was an amendment of the dates most recently. This particular information came a little bit later, but there have been other -- other issues of alibi discussed. I was very frank with this defendant as to their relative strengths or weaknesses. Again, it was my understanding that the decision was made not to, and that's why the time frame allowed by rule was allowed to lapse, your Honor, without the formal filing of a notice of alibi. I had discussed the opportunity of filing an alibi with Mr. DeSantis on a prior date, which would have been within the rule, and the decision was made not to file that alibi. (Tr. 250). This clearly implies that a strategic decision was made not to assert an alibi; in short, it had nothing to do with the amendment to the dates in the indictment. The timing of the oral motion for continuance also confirms this. The motions for a continuance and new counsel were made mid-trial only after the overwhelming nature of the evidence against defendant was before the jury. It was not made before trial commenced. The granting or denial of a motion for a continuance is a matter within the sound discretion of the trial court. State v. - 12 - Burke (1995), 73 Ohio St.3d 399, 407. An appellate court must not disturb a trial court's decision denying a motion for continuance absent an abuse of discretion. State v. Grant (1993), 67 Ohio St.3d 465, 479. The reviewing court must weigh the potential prejudice to the defendant against the trial court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice. State v. Powell (1990), 49 Ohio St.3d 255, 259; State v. Unger (1981), 67 Ohio St.2d 65. The relevant factors include the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or is dilatory; and whether the defendant contributed to the circumstance which gives rise to the request. State v. Unger, supra, at 67-68. See, also, State v. Grant (1993), 67 Ohio St.3d 465, 479. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. The trial court's denial of defendant's request for substitute counsel is also governed by the abuse of discretion standard. State v. Lockett (1976), 49 Ohio St.2d 48; State v. Edwards (July 11, 1996), Cuyahoga App. No. 69077, unreported. Generally, an indigent defendant wishing to discharge his appointed attorney bears the burden of showing "a breakdown in the attorney-client - 13 - relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel." State v. Coleman (1988), 37 Ohio St.3d 286, 292. Mere personality conflicts or disputes regarding trial strategy are insufficient to demonstrate a breakdown of that magnitude. Thurston v. Maxwell (1965), 3 Ohio St.3d 92, 93. It is well established that the Sixth Amendment right to counsel does not guarantee a "meaningful relationship" between defendant and his counsel. Morris v. Slappy(?) (1983), 461 U.S. 1; State v. Klanac (Aug. 26, 1993), Cuyahoga App. No. 63647, unreported. In the present case, defendant's request for new counsel did not occur until the bulk of the State's case was presented to the jury. The defendant informed the judge that he desired to present evidence of an alibi. Defense counsel informed the trial court that the alleged alibi evidence, referred to by defendant, was reviewed prior to the trial and that a decision was made not to present same. The record indicates that defense counsel was thoroughly prepared and that he zealously represented his client. There was no breakdown in the attorney-client relationship here, only a disagreement as to the use of alleged alibi evidence. Defendant has failed to demonstrate the trial court committed any error concerning the request for a change of counsel. We find no abuse of discretion under the circumstances presented and no prejudice to the defendant from the court's ruling. - 14 - Assignment of Error I is overruled. II. THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING AN INCOMPETENT FOUR YEAR OLD MINOR CHILD TO TESTIFY WHICH DEPRIVED THE APPELLANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. The determination of whether the trial court erred in allowing four year old Delvonte Conner to testify to the identity of defendant is reviewable for abuse of discretion. State v. Frazier (1991), 61 Ohio St.3d 246, 251. The Frazier court has set forth the following considerations in determining competency of a child witness under the age of ten years old: (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. Id. at syllabus. See, also, Schulte v. Schulte (1994), 71 Ohio St.3d 41, 43-44; State v. Kelly (1994), 93 Ohio App.3d 257, 262- 63. The record reveals that Delvonte Conner was voir dired to determine if he was able to receive just impressions of facts and to relate those impressions truthfully as is required by Evid.R. 601(A). If the child meets the minimal standard set forth in Evid.R. 601(A), the testimony is to be received into evidence for the trier of fact to weigh. State v. Morgan (1986), 31 Ohio App.3d 152. A - 15 - trial judge who observes the child and listens to the testimony is in a better position than an appellate court to determine a child's capacity for truth-telling. State v. Clark (1994), 71 Ohio St.3d 466, 473; State v. Bradley (1989), 42 Ohio St.3d 136; State v. Wilson (1952), 156 Ohio St. 525. The issue of witness competence to testify may be likened to other issues of admissibility as set forth in Evid.R. 104(A). The trial court's voir dire was sufficient to make a preliminary determination of competence. (Tr. 135-139, 141-142). Delvonte Conner recognized the photo of defendant; he recognized Det. Chojnowski; he identified the defendant as the man who said he was the police; he recalled that defendant told him and his great grandmother to "go get all the money out of the bank"; he recalled that he, defendant and his great grandmother went for a ride together to the bank. In cross-examination, Delvonte indicated that neither his mother nor his great grandmother told him to say those things about defendant; he indicated he was not telling stories. Delvonte indicated that you get into trouble if you tell a lie. Defense counsel acknowledged that Delvonte was "precocious." During trial, moreover, defense counsel failed to ask Delvonte a single question on cross-examination. (Tr. 204). Ohio courts, including our own, have upheld findings of competence involving children of the same or similar age. Schulte, supra (four year old child); State v. Kelly (1994), 93 Ohio App.3d 257 (four and six year old children); State v. Anderson (1984), 16 - 16 - Ohio App.3d 251 (six year old child); State v. Lee (1983), 9 Ohio App.3d 282 (five year old child); State v. Spencer (June 6, 1996), Cuyahoga App. No. 69490, unreported (four, five and six year old children); State v. Capone (July 20, 1995), Cuyahoga App. No. 67971, unreported (four year old child); State v. Dunlap (July 13, 1995), Cuyahoga App. No. 67036, unreported (seven and nine year old children); State v. Hogan (June 6, 1995), Cuyahoga App. No. 66956, unreported (four and six year old children). Even if this Court were to find error in the admission of this evidence, the admission was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; Harrington v. California (1969), 395 U.S. 250. Overwhelming evidence of defendant's presence and conduct at the scene established his guilt beyond a reasonable doubt without the admission of this evidence. Assignment of Error II is overruled. III. THE VERDICTS FINDING THE APPELLANT GUILTY ARE AGAINST THE WEIGHT OF THE EVIDENCE. IV. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY ON TWO COUNTS OF AGGRAVATED BURGLARY AND ONE COUNT OF KIDNAPPING. The defendant's third and fourth assignments of error are without merit. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that - 17 - reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 - 18 - N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. The State's case described in full detail a text-book variation of the familiar confidence game known as the pigeon drop. The State presented the testimony of eight witnesses who placed the defendant at the scene of the crime and described the events surrounding the scams. Ms. McCain clearly and unequivocally identified the defendant as the man who flashed a badge; entered her home; intimidated her for over one hour; forced her by implied threats to drive him to the bank; and induced her to withdraw $3,000 from her bank account. Ms. McCain's testimony was corroborated by her great grandson, Delvonte Conner. Delvonte was able to identify the defendant in court as the man who took his grandmother to the bank to "get all the money." Delvonte also testified as to his identification of defendant to police from a photo array. Ms. Burgin likewise supplied telling evidence of her victimization. She described in complete detail the ruse perpetrated by the defendants. Defendant and his confederates attempted to sting Ms. Burgin twice. She testified to the original - 19 - theft of $200 and the second attempt by defendant on a later date where the defendant impersonated a police officer in an attempt to steal more cash. Ms. Burgin also identified defendant in open court and was able previously to identify defendant out of a photo array. Ms. Burgin's testimony was supported by her neighbor, Homer Turner, who observed defendant walk up to Ms. Burgin's door twice on the day of the deceit. Mr. Turner was also able to identify defendant to police from a photo array. A false Cleveland police badge containing defendant's driver's license was found in his possession. The evidence was sufficient to sustain the charges; nor were the convictions against the manifest weight of the evidence. Assignments of Error III and IV are overruled. 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 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. BLACKMON, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 .