COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71489 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DANIEL HARRIS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 28, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-338497. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Alison Little Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: James A. Draper Cuyahoga County Public Defender Donald Green Assistant Public Defender 1200 West Third St., N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 2 SWEENEY, JAMES D., C.J.: Defendant-appellant Daniel Harris, Jr. appeals from his conviction for theft in violation of R.C. 2913.02, with two furthermore and one violence specification. The court imposed upon the appellant a sentence of incarceration of four to ten years. The appellant appeals from the trial court's denial of his motion for a continuance and motion for new trial. On January 19, 1996, Ms. Louise Nelson, the victim, withdrew her life savings from her bank, handed it to the appellant to hold for her, and, upon looking around, found that he had absconded. Ms. Nelson decided to move her funds from the bank she currently patronized, Society Bank, now Key Bank, to one closer to her residence. On the day she chose to make the transfer, a young man came to her door and acted as though he knew her from her years of work at the Cleveland Clinic. He called her by name, and spoke of mutual acquaintances. She allowed him to enter her apartment and a discussion of her banking needs arose. When visiting the bank, Ms. Nelson normally utilized the rapid transit, but on this occasion she accepted the appellant's offered to provide transportation in his car. Upon arrival at Society Bank, the appellant accompanied her inside. After withdrawing her funds, she handed the money to the appellant (T. 115). Ms. Nelson stated that I was busy talking to him, and when I turned around and looked, he was gone. (T. 116.) She informed the employees of the bank, went home, and called the police. The appellant was not given permission to take 3 the money. Ms. Nelson testified that prior to the appellant showing up at her apartment, he was unknown to her. Although Ms. Nelson was unable to make a courtroom identification of the appellant, she was able to identify him as the man with her in the photograph taken by the surveillance camera at Society Bank. On cross-examination, Ms. Nelson testified that after the money was withdrawn from her account, she placed it in her purse (T. 125). After arrival at the second bank, and while they were in line, the appellant said he would hold the money. Ms. Nelson was listening to the cashier speak with another customer, and when she looked around, the appellant was gone. The jury heard the testimony of Ms. Linda Huston, the victim's daughter. Ms. Huston stated that she saw her mother daily, and that prior to this incident she never heard her mother speak of the appellant. Ms. Huston testified that on January 18, 1996, her mother had approximately $4,987.62 in her account. Ms. Heidi Johnson, district security officer for KeyCorp., testified that she was contacted by Detective Ward of the Shaker Heights Police Department. Pursuant to his request, she obtained photographs taken by the surveillance cameras at the branch Ms. Nelson patronized. Ms. Johnson identified the photographs used as the State's exhibits, and noted that the time, date and camera number are stamped on each photograph. The photographs were taken by the camera at the window of teller Paula Quintana, and were taken on January 19, 1996, starting at 1:13 p.m. and going through 4 1:23 p.m. The 12 or 13 surveillance cameras in the bank snap pictures on a rotating basis, and Ms. Johnson provided only those photographs which recorded the transaction in question. During cross-examination Ms. Johnson was asked if there were more photographs taken of this transaction. She testified that there was a VCR tape, but that she had not printed actual photographs from the tape. Based upon her recollection of the VCR tape, it did not depict the actual transfer of money to either the victim or the appellant. Rachel Mortland, a teller at Key Bank, recalled that Ms. Nelson entered the bank on January 19, 1996, in order to close her account. Ms. Mortland, who recognized Ms. Nelson by sight, was working next to Paula Quintana, the teller waiting on Ms. Nelson. A gentleman accompanied Ms. Nelson, and it was he who answered the teller's questions and conducted the transaction. Ms. Nelson was quiet, and kept asking the appellant questions. Ms. Mortland became involved when Ms. Quintana, a new teller, needed an override in order to close out the victim's account. Ms. Nelson was asked if she wanted a check, but the gentleman responded no, they wanted cash. The gentleman also requested a second envelope. Ms. Paula Quintana, the teller who waited on Ms. Nelson, testified that a man accompanied Ms. Nelson on January 19, 1996. Ms. Quintana requested that Ms. Nelson provide identification, and Ms. Nelson produced a State I.D. Ms. Mortland's assistance was needed to provide an override. During the transaction, Ms. Quintana asked questions of the victim, but the man seemed to 5 answer all of them (T. 159). The man indicated that Ms. Nelson wished to close her account. Ms. Quintana asked Ms. Nelson if she would like a cashier's check or a money order, the man answered no, that he wanted cash. He also requested large bills. The man requested, and she provided, two envelopes, one in which to place the money, and one empty. After Ms. Quintana gathered the money together, she tried to hand it to Ms. Nelson, but the man took the envelope. Ms. Quintana testified that Ms. Nelson said something about I'll put it here, and he said, no, auntie, I have it. (T. 161). Ms. Quintana identified the appellant as the man who accompanied Ms. Nelson in the bank. On cross-examination Ms. Quintana stated that she observed the appellant take the money, and heard Ms. Nelson say that she would place it in her purse, but she did not actually see whether or not Ms. Nelson placed the money in her purse. Shaker Heights Police Officer Jodie Cernansky conducted the initial investigation of the theft. Officer Cernansky interviewed the victim for approximately two hours, during which time the victim's account of the theft remained unchanged. When Ms. Nelson completed the closing of her account at Society Bank, she and the appellant proceeded to Star Bank to open a new account (T. 174). Upon termination of the interview, Officer Chernansky completed her written report. Shaker Heights Police Detective Timothy Ward was assigned to the follow-up investigation. He contacted Society National Bank and obtained surveillance photographs from Heidi Johnson. After he 6 reviewed the police report, he contacted the victim and her daughter. The detective first took verbal statements, but later obtained written statements. In addition, Officer Ward contacted Rachel Mortland and Paula Quintana. Detective Ward also made an inquiry to Star Bank in an attempt to obtain any surveillance photographs or reports of the theft, but the attempt was unsuccessful as there was no report at Star Bank. Detective Ward testified that Sergeant Edwards was able to identify the man in the photographs obtained from Society as Daniel Harris, Jr. Upon locating Mr. Harris, Detective Ward was able to obtain a statement since the appellant signed a written waiver of his Constitutional rights. The appellant first denied taking money from an older woman at the bank on January 19, 1996. When the appellant was shown the surveillance photographs, he blurted an identification of Ms. Nelson. The appellant indicated that he had known Ms. Nelson for a long time, since November or December 1995, and stated that he had accompanied her to the bank. The appellant stated that he saw Ms. Nelson that morning at the grocery store and helped carry her groceries home. She mentioned that she wanted to change banks, and he was just doing her a favor by going to the bank with her. When questioned as to whether he drove to the bank, he indicated that they took the rapid. The appellant stated that after Ms. Nelson withdrew her money, they took the rapid to South Woodland and Van Aken. Ms. Nelson had to return to her apartment to obtain her identification. He left her and went to Kenny King's on Buckeye. 7 When Detective Ward inquired of the appellant as to why bank employees would get the impression that he was related to Ms. Nelson, the appellant responded that he did not know why anyone would have that impression. When he was informed that he was heard addressing Ms. Nelson as auntie , he stated, oh, I called her auntie because she reminds me of an aunt. (T. 187.) On cross-examination, Detective Ward stated that he had contacted Mark Ortega at Star Bank in order to find out if there were surveillance tapes. He learned that there was no constant surveillance at the bank. After the close of evidence, the submission of exhibits, and the ruling on the appellant's motion pursuant to Crim.R. 29, the appellant requested a continuance to attempt to obtain records from Star Bank and further photographs from Society Bank. Counsel for the appellant stated to the court that he had been informed by a prosecutor during a pre-trial that the second bank was National City Bank, and not Star Bank. The court overruled the motion, and continued with the trial. The appellant sets forth two assignments of error. The appellant's first assignment of error: IN ALLOWING THE STATE TO BENEFIT FROM NONCOMPLIANCEWITH CRIM.R. 16, WHICH PREVENTED APPELLANT FROM DISCOVERING KEY INFORMATION, THE COURT ABUSED ITS DISCRETION UNDER CRIM.R. 16(E)(3). In the first assignment of error, the appellant argues that the trial court erred in refusing to grant a continuance in the midst of trial in order that he might begin an inquiry into 8 allegedly exculpatory evidence. The appellant contends that until the morning of trial he had not learned that Ms. Nelson's destination was Star Bank. The appellant argues that he was deprived an opportunity to investigate any evidence which might be discovered from the employees or the surveillance cameras at Star Bank. The appellant also asserts that the State failed in its continuing duty to promptly disclose additional material, i.e., the victim's destination bank, which would have been the subject of discovery or inspection under the original request. The appellant herein was convicted of theft, which R.C. 2913.02 defines as: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; (2) Beyond the scope of the express or implied consent of the owner authorized to give consent; (3) By deception; (4) By threat. The granting or denial of a continuance is within the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 115; State v. Unger (1981), 67 Ohio St.2d 65, syllabus. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion. Unger, supra, at 67. The term abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio 9 St.3d 410, 413. Crim.R. 16 requires the disclosure of only certain evidence. Crim.R. 16(B)(1)(e) requires the State to disclose the name, address and record of witnesses it intends to call at trial. Nowhere is there a requirement to disclose any witness which the State has no intention of presenting as a witness. Thus the prosecution was not required to disclose the names of any employees of Star Bank, as the State did not call a witness from that institution. Crim.R. 16(B)(1)(g) permits the defendant to obtain an in camera inspection of witnesses' written or recorded statements upon the completion of direct examination at trial. In the case now before this court, the appellant failed to request such an in camera inspection of any witnesses' statements. Such failure has waived any error. Further, we must point out that the appellant argues that Star Bank's employees might have information and that surveillance cameras mightreveal another person in line with Ms. Nelson at Star Bank. The existence of this evidence is speculative at best, and, in light of Detective Ward's testimony that he attempted to secure such evidence and failed, the trial court did not abuse its discretion when it denied the motion for a continuance at such a late point in the trial. Finally, we note that in the case sub judice, the prosecution's pre-trial theory of the case was that the appellant obtained possession and control of Ms. Nelson's life savings at 10 Society Bank when the money was handed to him by the teller, Ms. Quintana. Based upon this theory, the State disclosed all evidence required to the appellant. That the State never deviated from this theory of the case can be seen by the evidence which was introduced through the witnesses and the exhibits submitted to the court. Ms. Nelson testified that she handed the man who accompanied her to the Society Bank the money (T. 115); that she never gave permission to the man to take her money (T. 116); that the man in the surveillance photograph was the man who accompanied her (T. 119); and that at the bank the man wanted her to take cash rather than a cashier's check (T. 125). Both of the bank tellers testified that the appellant dominated the withdrawal transaction (T. 141; 144; 145; 159); that he required cash (T. 141; 159); and that he requested a second envelope (T. 142; 160). Ms. Quintana testified specifically that appellant referred to Ms. Nelson as auntie and that the money was given into his possession (T. 161). Given the prosecution's theory of the case, and the fact that evidence was presented on each element of the crime as viewed by the prosecution, the trial court did not abuse its discretion in denying a motion for continuance requested virtually at the end of the trial, in order to gather evidence which may or may not exist. The appellant's first assignment of error is overruled. The appellant's second assignment of error: BECAUSE KEY INFORMATION WAS WITHHELD SO THAT APPELLANT COULD NOT DISCOVER IT UNTIL AFTER THE TRIAL, DUE PROCESS DEMANDS THAT APPELLANT RECEIVE A NEW TRIAL. The appellant argues that he was denied his due process right 11 to a fair trial when the prosecution suppressed favorable evidence which was material to his defense. The United States Supreme Court analyzed the disclosure requirements regarding exculpatory evidence in Brady v. Maryland (1963), 373 U.S. 83. The Brady holding was cited by the Ohio Supreme Court at syllabus 4 of State v. Johnson (1988), 39 Ohio St.3d 48 where the Court held: 4. The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. (Brady v. Maryland [1963], 373 U.S. 83, followed.) The Ohio Supreme Court also held, at syllabus 5 of Johnson, supra: 5. In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This standard of materiality applies regardless of whether the evidence is specifically, generally, or not at all requested buy the defense. (United States v. Bagley [1984], 473, U.S. 667, followed.) In the case sub judice, this court must disagree with the appellant's contention that the evidence allegedly suppressed by the prosecution was material. As outlined in the previous assignment of error, the State's theory of the case was that the theft occurred at Society Bank. The State presented evidence as to each element of the crime consistent with its theory: the appellant entered the elderly victim's apartment, transported her 12 to the bank, took charge of the withdrawal transaction at the bank, led the tellers to believe that they were related, was handed the money by the teller, requested an empty envelope, and absconded with the cash. Given this scenario, even if the destination bank had been disclosed to the appellant, and even if he had been able to secure some shred of evidence that someone else had accompanied Ms. Nelson into Star Bank, the jury would have still been justified in finding the appellant guilty beyond a reasonable doubt. Since the appellant was not deprived of any material evidence, he was not denied his due process right to a fair trial. The appellant's second assignment of error is overruled. Judgment affirmed. 13 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. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. __________________________ JAMES D. SWEENEY CHIEF JUSTICE 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 .