COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72177 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHN DORSEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT April 23, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-345729 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. ROBERT R. CLARICO, ESQ. Cuyahoga County Prosecutor The Brownhois Building CHRISTOPHER L. FREY, ESQ. 4403 St. Clair Avenue ERIKA, RITT, ESQ. Cleveland, Ohio 44103 Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: John Dorsey, defendant-appellant, appeals the decision of the trial court convicting him of felonious assault and robbery and -2- sentencing him accordingly. Dorsey assigns the following three errors for our review: I. MR. DORSEY'S DUE PROCESS RIGHTS UNDER ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. II. JOHN DORSEY WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO MAKE A TIMELY OBJECTION. III. THE TRIAL COURT COMMITTED PLAIN ERROR AND JOHN DORSEY WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WHEN HE WAS FORCED TO APPEAR AT TRIAL IN IDENTIFIABLE PRISON CLOTHING. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On October 11, 1996, Dorsey asked an acquaintance, Bernard Flowers, for a ride. The two men drove to a parking lot in the area of E. 30th and Central where they exited the car and began talking to several other men. After a few minutes, Flowers shook Dorsey's hands and announced his intention to leave. As he turned to the other men to shake their hands, Flowers was grabbed around the throat by Dorsey who applied a choke hold. Flowers was rendered unconscious. When he woke up, he was on the ground and Dorsey was beating him about the head and face. Flowers pushed Dorsey away. Thereafter, Dorsey ran and jumped into the drivers seat of Flowers' car, which had been left running. Thinking that Dorsey was going to steal the car, Flowers ran to the car and jumped into the -3- passenger seat. He grabbed at the keys and attempted to turn off the ignition. Dorsey began punching him in the face. Flowers was able to turn the ignition off and remove the keys. He then took the keys and ran away from the car. When Dorsey exited the car, Flowers drove himself to the hospital. Flowers suffered massive swelling on the right side of his face. His left eye was swollen shut and he also suffered swollen lips and a large bruise on his neck. Dorsey was arrested and charged with robbery and felonious assault. After a jury trial, Dorsey was convicted of both charges. He was sentenced to two concurrent five year terms in prison. This appeal followed. In his first assignment of error, Dorsey argues the trial court erred in denying his Crim.R. 29 motion for acquittal. He argues there was insufficient evidence to convict him of robbery and felonious assault. When reviewing a motion for acquittal, we must determine whether reasonable minds could reach different conclusions about whether each material element of the crime has been proved beyond a reasonable doubt. Ohio v. Baarlaer (1996), 115 Ohio App.3d 521, 524 [citing State v. Bridgeman (1978), 55 Ohio St.2d 261, 263.] We must also view the probative evidence and any reasonable inferences therefrom in a light most favorable to the prosecution. State v. Tolbert (1996), 116 Ohio App.3d 86, 91. Dorsey argues the state failed to produce sufficient evidence that he intended to steal Flowers' car. He argues that Dorsey did not attempt to put the car in gear or to take the keys. He also -4- argues that Dorsey's decision to allow Flowers to drive away in the car indicates he was not attempting to steal the car. However, reasonable minds could reach different conclusions from Flowers' testimony. Flowers testified that the keys were in the ignition of the car and it was running. Dorsey got into the driver's side of the car, without Flowers' permission, and punched Flowers repeatedly in the face when he tried to turn off the ignition. Only after Flowers turned off the ignition and regained possession of the keys did Dorsey get out of the car. When viewed in a light most favorable to the prosecution, this evidence was sufficient to allow a reasonable juror to conclude that the State met its burden to proving that Dorsey intended to steal Flowers' car. Dorsey also argued that the State failed to prove the element of serious physical harm necessary to convict him of felonious assault. Felonious assault is defined as knowingly causing serious physical harm to another ***. R.C. 2903.11. Serious physical harm includes physical harm that carries a substantial risk of death, physical harm that involves some temporary, serious disfigurement, and physical harm that involves acute pain of such duration as to result in substantial suffering, or that involves any degree of prolonged or intractable pain. R.C. 2902.01(5)(b),(d),(e). The evidence established that Flowers was choked until he passed out. In State v. Czajka (1995), 101 Ohio App.3d 564, 574, the court held that being choked to the point of unconsciousness -5- constitutes serious physical harm. In addition to extensive swelling on the right side of his face, Flowers' left eye was swollen shut, and his mouth was so sore that it was difficult for him to speak for several days after the attack. Also, on the day of trial, he testified that he still had scars under both his eyes and on his neck. (Tr. 106.) Viewing this evidence in a light most favorable to the prosecution, we conclude that reasonable minds could reach different conclusions about whether Flowers suffered serious physical harm. Accordingly, the trial court properly denied Dorsey's motion for acquittal. Dorsey's first assignment of error is overruled. In his second and third assignments of error, Dorsey argues he was forced to proceed to trial in identifiable prison clothing. He alleges he was denied his right to a fair trial and that trial counsel's failure to object constituted ineffective assistance of counsel. We are cognizant of the potential for prejudice when a defendant appears before a jury in jail clothes. The constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. Holbrook v. Flynn(1986), 475 U.S. 560, 567 [citing Estelle v. Williams (1976), 425 U.S. 501, 504-505]. However, in Estelle, the Supreme Court refused to establish an across-the-board rule that a conviction must be overturned, under any circumstances, when the accused wore jail clothing at trial. Instead, the inquiry must focus on whether the accused's appearance -6- before the jury in jail clothes was compelled. Id. at 507. Though a defendant cannot be compelled to appear at trial in identifiable prison clothes, he may choose to do so. State v. Wigley (February 6, 1997), Cuyahoga App. No. 69920, unreported. Also, there may be other circumstances which indicate a lack of compulsion. We conclude that the events of this case demonstrate an example of such circumstances. Dorsey was not forced to stand trial in prison clothing. On the contrary, the trial court inquired on the record about Dorsey's clothing before any prospective jurors were seated. COURT: Mr. King, your client is not in civilian clothes or street clothes, if you will. Why not? MR. KING: Judge, as I understand it and, John, jump in here if I'm getting this wrong. When you were brought in, the clothes you were wearing were in a pretty bad condition, weren't they? And that's going back a couple months. DORSEY: Right. MR. KING: Have they been destroyed, to your knowledge? Or do they exist? DORSEY: They still here. They just not worth putting on. You know, they messed up, so I just didn't put them on. COURT: All right. Do we have anybody that can bring him some street clothes? DORSEY: My peoples was down in Youngstown and I didn't know, you know, that I was going to go through this to get clothes sent down here, that I was going to have to go through all this. COURT: Well, we'll go forward as is, then. -7- (Tr. 9-10.) The above exchange demonstrates the trial court's willingness to have someone bring street clothes for Dorsey. However, Dorsey's comments revealed that his clothes were available but he decided not to wear them because they were messed up. He made no effort to obtain other street clothes. Though he claimed he didn't know he would have to stand trial, the docket reveals he pleaded not guilty to the indictment on December 13, 1996 and that his January 21, 1997 trial date was set on January 7, 1997. Accordingly, he had ample time to secure other clothing. [T]he defendant and his attorney had the burden to make known that the defendant desired to be tried in civilian clothes before the state could be held accountable for his being tried in jail clothes. Estelle at 509 [citing United States ex rel. Stahl v. Henderson (C.A. 5, 1973), 472 F.2d 556, 557, certiorari denied (1989), 489 U.S. 1072]. We also reject Dorsey's claim of ineffective assistance of counsel. A showing of ineffective assistance of trial counsel must include a showing that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. While it may be argued that trial counsel should have sought a continuance in order for Dorsey to obtain street clothes, Dorsey has not shown that he was prejudiced by trial counsel's inaction. The record reveals the trial court gave the following instruction to the prospective jurors before the start of the trial: COURT: ***Mr. Dorsey is dressed in orange. You might think that's a bit unusual. I'm going to direct you at this time that any questions or inferences that his attire might be causing you should be kept completely out your mind (sic) when this case ultimately goes to you for deliberation. In other words, you can draw no inference due to the fact that he's dressed in orange or, in other words, not in what we would perceive to be street clothes. Is there anybody that can't follow that direction? Okay. No hands are up. I would assume that that will go with you to the jury room. (Tr. at 55-56.) In giving his cautionary instruction to the jury, the trial court carefully avoided characterizing Dorsey's attire as jail attire before the jury. A jury is presumed to have followed a proper cautionary instruction given by the trial court. State v. Loza (1994), 71 Ohio St.3d 61, 79. We conclude that the trial court's cautionary instruction cured any potential prejudice in this case. Because he failed to make the required showing of prejudice, Dorsey's ineffective assistance of counsel claim must fail. See Strickland at 691. ( An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. ) Dorsey's second and third assignments of error are overruled. Judgment affirmed. 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. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .