COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71479 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JACK DEMPSEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No., CR-336481 JUDGMENT: AFFIRMED AND REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY Assistant Prosecuting Attorney The Justice Center - 8TH Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PHILIP J. KOREY The Leader Bldg., #410 526 Superior Avenue Cleveland, Ohio 44114-1979 2 O'DONNELL, J.: Jack Dempsey appeals from a judgment of the common pleas court entered pursuant to jury verdicts finding him guilty of aggravated arson in violation of R.C. 2909.02 and guilty of burglary in violation of R.C. 2911.12. For the reasons set forth below, we affirm these convictions. The record here reveals that shortly before 11:00 p.m., on the evening of March 11, 1995, Thomas Padmonick, a resident in a storefront building with second floor living quarters located at 11202 Lorain Avenue, heard a noise in the parking lot behind the building, but saw nothing when he investigated it. A short time later, however, Padmonick smelled smoke, called 9-1-1 and he and his two daughters evacuated the building. At 11:15, Chief Paul Marks of the Cleveland Fire Department dispatched two pumpers, a hook and ladder, and a rescue squad to the scene. Upon arriving at the fire and observing its extent, fire fighters called for additional assistance and within twenty to thirty minutes, they managed to knock down the fire and eventually extinguish it completely, but not before it had extensively damaged the building. Because of his suspicions that the fire may have been intentionally set, Chief Marks called Captain Fred Balsum and Lieutenant Daniel Kovacic, arson investigators, who arrived on the scene around 11:40 p.m. that evening, and they observed that someone had broken the glass on the back door of the building. They further determined that the fire had two points of origin: the 3 first, located just inside the rear north door and the second, located in boxes of files in a first floor law office. The investigators concluded that because the fire had two points of origin, it could have been intentionally set. In addition, the investigators checked electrical outlets, gas pipes and other possible causes but discovered no problems. Subsequently,Chief Marks ordered fire fighter James Hogan to the basement to look for the electrical shut-off. When he entered the basement, Hogan discovered the appellant Jack Dempsey lying unconscious on his stomach with his shirt pulled over his head. Hogan and two other fire fighters immediately began CPR, and carried Dempsey out of the basement to an ambulance which transported him to Fairview General Hospital. Hospital officials transferred Dempsey to MetroHealth Medical Center's burn unit, where Dr. Diana Jo Pi treated him for severe smoke inhalation and where he was also diagnosed with retrograde amnesia causing him to forget the events surrounding the fire, which had caused an estimated $156,000 worth of damage to the building. On March 25, 1996, the Cuyahoga County Grand Jury indicted Dempsey for aggravated arson in violation of R.C. 2909.02 and burglary in violation of R.C. 2911.12. On May 30, 1996, after conducting three pretrials, the court scheduled the case for trial on June 11, 1996, but on May 30, 1996, Dempsey filed a motion for a continuance, which the trial court granted, resetting trial for August 12, 1996. Again, on August 2, 1996, Dempsey filed another motion for an further continuance of 4 trial, contending the need for more time to locate witnesses and conduct further investigation. The court did not agree to continue trial. On Monday, August 12, 1996, when the trial court called the case for trial, defense counsel requested another continuance, contending that her co-counsel was ill and that she needed additional time to pursue allegedly exculpatory evidence regarding other suspects that she had received from the prosecutor the previous Friday. The court denied the motion, and the trial began. After the presentation of evidence by both parties, defense counsel requested a jury instruction regarding mere presence at the scene of a crime. The court declined to give that instruction, and the jury, after deliberation, returned its verdicts finding Dempsey guilty of aggravated arson and burglary. The trial court subsequently sentenced him to a term of ten to twenty-five years on the arson conviction concurrent with a term of three to fifteen years on the burglary conviction. Dempsey now appeals and assigns four errors for our review. The first assignment of error states: I. WHERE THE PROSECUTOR REVEALED TO THE DEFENSE ONLY TWO (2) DAYS BEFORE TRIAL THE NAMES OF INDIVIDUALS WHO WERE SUSPECTS IN THE CASE, AND WHERE THE DEFENSE COULD NOT ASCERTAIN THE LOCATION OF THESE INDIVIDUALS, AND WHERE THE DEFENDER'S OFFICE DID NOT WORK ON THE CASE AND WHERE THE NEW INVESTIGATOR DID NOT HAVE SUFFICIENT TIME TO PURSUE AND LOCATE WITNESSES, AND WHERE CO-COUNSEL WHO WAS AN INTEGRAL PART OF THE DEFENSE TEAM WAS ILL ON THE DAY OF TRIAL, THE TRIAL COURT'S FAILURE TO GRANT A CONTINUANCE DENIED THE DEFENDANT DUE PROCESS, THE EFFECTIVE ASSISTANCE OF COUNSEL, COMPULSORY PROCESS, THE RIGHT TO PRESENT A DEFENSE AND THE RIGHT TO A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNTIED 5 STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. Dempsey contends that the trial court violated his right to due process, his right to effective assistance of counsel, the compulsory right to process, and the right to present a defense when it denied his counsel's request for a continuance. The state maintains, however, that the trial court did not violate any of Dempsey's rights when it denied the motion for continuance because it acted within its discretion on the matter. The issue then for our determination is whether the trial court abused its discretion in denying Dempsey's motion for a continuance in this case. The Ohio Supreme Court, in State v. Unger (1981), 67 Ohio St.2d 65, stated, at p. 67: The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion. (Citations omitted.) The Supreme Court of Ohio stated further in Unger, supra, at 67-68: In evaluating a motion for a continuance, a court should note, inter alia: 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 whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstances which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. 6 The record here reflects that the trial court had previously granted a trial continuance giving defense counsel two additional months to investigate its case and to prepare for trial. Furthermore, when the trial court denied Dempsey's request for continuance on the day of trial, it addressed defense counsel's concerns regarding the absence of co-counsel and the purported exculpatory witnesses; the court determined neither would prejudice the defendant because co-counsel had not been counsel of record on the case, and the allegedly exculpatory witnesses had been known by a previous defense counsel and none was scheduled to testify in the case. In making its ruling, the trial court referring to the existence of co-counsel on the case, stated: THE COURT: ***So, number one, your continuance based on his absence is denied. The Court was never made aware that anyone but yourself was handling this case until this morning. (Tr. 7) With respect to the exculpatory witnesses, the court stated: As far as the exculpatory witnesses, I note that on May 8, 1996 the State of Ohio responded to your discovery request, particulary, in section E, that no exculpatory material is available, or in the possession of the prosecuting attorney. Certainly, the Court cannot determine whether or not those three names are exculpatory, until such time as you put evidence before the Court. At this time it wouldn't appear that your client would be prejudiced by those names, having gotten to you only on Friday, especially since those names were given to his prior attorney, and, therefore, having been within the knowledge of your client throughout the pendency of these actions. 7 And, obviously, they're not listed as witnesses; is that correct, Mr. Patton? MR. PATTON: That is correct. THE COURT: So they have no, obviously - - MR. PATTON: No bearing in this case. THE COURT: No bearing in this case. (Tr. 8-9) Based upon our review of the record, we cannot conclude that the trial court abused its discretion in denying the motion for the additional continuance and, in conformity with State v. Unger, supra,we have determined that this assignment of error is not well taken. Accordingly, it is overruled. The second assignment of error states: II. THE TRIAL COURT'S FAILURE TO PROVIDE THE MERE PRESENCE INSTRUCTION DEPRIVED THE DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE, DUE PROCESS OF LAW, THE EFFECTIVE ASSISTANCE OF COUNSEL AS WELL AS A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNTIED STATES CONSTITUTIONS AND THE APPLICABLE PROVISIONS OF THE OHIO CONSTITUTIONS. Dempsey asserts that the trial court erred when it refused to give his requested instruction to the jury that mere presence at a crime scene is insufficient to prove guilt. The state asserts that the trial court acted properly in denying Dempsey's request for this jury instruction. The issue then for our determination is whether the trial court abused its discretion in denying the jury instruction on appellant's mere presence at the crime scene. An appellate court ***will not reverse the decision of the trial judge relating to whether sufficient facts existed to support 8 a jury instruction absent an abuse of discretion. State v. Endicott (1994), 99 Ohio App.3d 688, 693. An abuse of discretion connotes more than an error of law or judgment; it requires a showing that the court's attitude is unreasonable, arbitrary or unconscionable. Id. Here, Dempsey requested the following instruction: Mere presence at the scene of a crime does not constitute that person guilty of that offense. In denying the request, the trial court stated: THE COURT: I think more appropriately in this case a mere presence might be confusing to the jury since Count Two we talk about his lack of consent and his trespass on the premises. And a mere presence may confuse the jury, as it conflicts with the elements of Count Two of this case. I'm not going to give the mere presence charge, so your request is denied. (Tr. 362.) The court gave the following charge regarding the second count, burglary: Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 11th of March, 1995 and in Cuyahoga County, Ohio, the defendant, by force, stealth or deception, trespassed in an occupied structure, or in a separately secured or separately occupied portion thereof with the purpose to commit therein a theft offense, or a felony. (Emphasis added.) (Tr. 420.) This general charge as to count two required the jury to find, in part, beyond a reasonable doubt that Dempsey trespassed in the building; i.e., that he was in fact in the building unlawfully. Therefore, an instruction that mere presence at the scene does not constitute guilt is in itself erroneous in this context since Dempsey's presence inside the building constituted an element that 9 the state needed to establish beyond a reasonable doubt. Accordingly, we cannot say that the trial court abused its discretion in this case by denying the request for a jury instruction on mere presence, and we decline to accept this assignment of error. The third assignment of error states: III. THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING IMPROPER OPINION AND HEARSAY TESTIMONY IN THE GUISE OF EXPERT TESTIMONY WHICH DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND HIS RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AND FOURTEENTH AMENDMENTS. Dempsey asserts first, that the trial court erred in allowing Lieutenant Daniel Kovacic to testify as an expert regarding arson because the state failed to lay a proper foundation qualifying him as an expert in that field, and, second, urges the court erred when it permitted Chief John Yatson of the arson unit to testify regarding hearsay statements. The state contends that since Dempsey failed to raise these objections at trial, he cannot present them on appeal unless they constitute plain error. The issues then for our determination are whether Dempsey can raise these issues on appeal and whether the trial court committed plain error by permitting Kovacic's expert testimony and Yatson's testimony regarding the allegedly hearsay statements. In State v. Williams (1977), 51 Ohio St.2d 112, the Ohio Supreme Court stated in the syllabus: 1. An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's 10 attention at a time when such error could have been avoided or corrected by the trial court. Here, Dempsey failed to object to that which he now complains of in this assignment of error, therefore, these alleged errors are waived unless they constitute plain error. Crim.R. 52(B) allows our court to consider plain error or defects which affect substantial rights of a party. Regarding Kovacic's testimony as an expert, the state established that he had been a front-line fire fighter for ten years and then became an arson investigator with the Cleveland Fire Department, and has worked in that capacity for the past five years. He further testified that he is a graduate of the Cleveland Police Academy and has taken classes regarding arson investigation both there and at the Cleveland Fire Academy. After establishing Kovacic's credentials, the state asked the court to qualify him as an expert in arson and arson-related fields, and defense counsel stated, without objection. (Tr. 38) Thus, the court stated: THE COURT: Without objection, thank you. He is so qualified. (Tr. 38) Therefore, because defense counsel agreed to recognize Kovacic as an expert and because the court qualified him as an expert, the court did not err in permitting him to testify as an expert regarding the fire. As to Yatson's testimony regarding purported hearsay statements, Evid.R. 801(C) defines hearsay and states: 11 Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. In this case, Dempsey specifically complains about the following: Q. Okay. What, if anything, happened to those alleged leads that Mr. Dempsey alleged to you to be the person or persons who have caused the fire at 11202 Lorain? A. We spoke with each and every person that Jack had mentioned, and there was nothing to substantiate his claims. (Tr. 356) Yatson's answer here does not constitute hearsay because he did not testify as to any statements made by any third parties. We therefore conclude, based upon the foregoing review, that the trial court did not commit plain error in allowing the testimony of these witnesses at trial. Accordingly, this assignment of error is overruled. The fourth assignment of error states: IV. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT SENTENCED THE DEFENDANT BASED ON THE SENTENCING LAW IN EFFECT PRIOR TO JULY 1, 1996, INSTEAD OF THE NEW LAW WHICH TOOK EFFECT ON JULY 1, 1996; THE SENTENCING WAS IN VIOLATION OF THE OHIO CONSTITUTION, R.C. 1.58 AND DUE PROCESS. Dempsey contends that the trial court committed plain error by sentencing him in violation of the Ohio Constitution, R.C. 1.58, and his right to due process in that it failed to sentence him in accordance with the new criminal penalties established in Senate 12 Bill 2, which became effective on July 1, 1996, and applies to persons sentenced on or after that date. The state contends procedurally that Dempsey waived his right to review by not presenting this issue to the trial court and further argues substantively that R.C. 1.58 is a statutory rule of construction to be utilized only when an ambiguity exists in the statute. Here, the state urges that, due to clearly expressed legislative intent, no ambiguity exists and asks us to affirm the trial court because it properly sentenced Dempsey in accordance with the law in effect at the time he committed these offenses. The issue presented for our review is whether the trial court committed error in sentencing Dempsey pursuant to the criminal sentencing statutes in effect at the time he committed these crimes or whether it should have sentenced him pursuant to Senate Bill 2, which became effective July 1, 1996. Initially, we note that Dempsey did fail to raise this issue in the trial court, but we will review this matter as plain error because it affects substantial rights of Dempsey and others. Sec. 5 of Senate Bill 2, as amended, states in part: The provisions of the Revised Code in existence prior to July 1, 1996 shall apply to a person upon whom a court imposed a term of imprisonment prior to that date and to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, imposed a term of imprisonment for an offense that was committed prior to that date. However, the General Assembly, apparently recognizing a potential conflict with R.C. 1.58, amended that portion of the law in Section 3 of Senate Bill 269, which states: 13 Sec. 5. The provisions of the Revised Code in existence prior to July 1, 1996, shall apply to a person upon whom a court imposed a term of imprisonment prior to that date and notwithstanding division (B) of Section 1.58 of the Revised Code, to a person upon whom a court, on or after that date and in accordance with the law in existence prior to that date, imposes a term of imprisonment for an offense that was committed prior to that date. The provisions of the Revised Code in existence on and after July 1, 1996, apply to a person whom commits an offense on or after that date. (Emphasis added.) Thus, in Senate Bill 269, the General Assembly attempted to clarify the language of Senate Bill 2 by referencing R.C. 1.58(B) and purporting to nullify its application in this instance. R.C. 1.58(B) states: If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended. Hence, a conflict exists between the provisions of S.B. 2 as amended by S.B. 269 and the provisions of R.C. 1.58, a rule of statutory construction. In this regard, R.C. 2901.04(A) provides: Sections of the Revised Code defining * * * penalties shall be strictly construed against the state and liberally construed in favor of the accused. We note further in this context that Article 2, Section 15(D), of the Ohio Constitution states: No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed. Our review of the action taken by the General Assembly reveals that while the reenactment of the penalty provisions of the criminal code amended the penalties for arson and burglary, that 14 body did not amend or repeal the provisions of R.C. 1.58(B); instead, it attempted to clarify its intent by adding language in Am.Sub.S.B. 269 to include the phrase notwithstanding division (B) of Section 1.58 of the Revised Code ; this language, however, is a purported legislative limitation or amendment of Section 1.58(B) of the Revised Code which, in violation of Article 2, Section 15(D), of the Ohio Constitution, supra, does not repeal division (B) of R.C. 1.58. Accordingly, the conflict between S.B. 2 as amended by A,Sub.S.B. 269 and R.C. 1.58 must be resolved by construing the language against the State of Ohio and in favor of the accused pursuant to R.C. 2901.04(A). Therefore, we conclude, in accordance with State v. Mills (Dec. 9, 1996), Wood App. No. 95CR331, unreported; State v. Dere (June 30, 1997), Ross App. No. 96 CA 2247, unreported; and State v. Toler (Sept. 19, 1997), Hamilton No. C-960835, unreported, that, because the General Assembly did not amend or repeal R.C. 1.58(B) and because that statute provides for imposition of a reduced amended penalty, persons who committed offenses prior to July 1, 1996 but who are sentenced after that date are entitled to the benefits it confers. In this case, Dempsey is entitled to be sentenced in accordance with the penalty provisions contained in Senate Bill 2. Thus, we have determined this assignment of error is well taken, and the matter is remanded to the trial court for re-sentencing in accordance with the penalty provisions contained in Senate Bill 2. 15 In all other respects, the judgment of the trial court is affirmed. Judgment entered as indicated. 16 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. MATIA, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .