COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72422 STATE OF OHIO/ : VILLAGE OF NEWBURGH HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION BERT G. WHEATLEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Garfield Heights Municipal : Court : Case No. 97TRD00969 (A,B,C) JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: JOHN K. MORONEY, Prosecutor Village of Newburgh Heights 22255 Center Ridge Road, #208 Rocky River, Ohio 44116 For defendant-appellant: ERIC D. HALL Attorney at Law Kramer & Associates, L.P.A. 3214 Prospect Avenue, East Cleveland, Ohio 44114 KENNETH A. ROCCO, J.: -2- Defendant-appellant Bert G. Wheatley appeals from his con- victions after a bench trial for driving under a suspended opera- tor's license, falsification, and disorderly conduct. In his six assignments of error, appellant contends he was not given adequate notice of the charges against him, his appeal is compromised by the trial court's failure to preserve an item of evidence, the trial court abused its discretion in denying his motion for a continuance of trial, the trial court improperly admitted certain items into evidence, the trial court did not consider all of the evidence prior to rendering its decision and, finally, his convictions are not supported by the evidence. This court will consider only appellant's first contention since the remaining ones are not adequately briefed in conformity with the applicable appellate rules. However, since the record reflects appellant was apprised of the charges against him, his assertion to the contrary has no merit and his convictions must be affirmed. Appellant's convictions stem from an incident that occurred on October 8, 1996. At approximately 3:00 p.m., Officer Frank A. Trusso, who, along with two other officers, was working in the police station in the Village of Newburgh Heights, Ohio, was informed by the station's dispatcher that someone wished to file an accident report. Officer Trusso approached the person, later identified as appellant, and asked if he could help him. Appellant told Trusso that he had just been involved in a traffic accident at the -3- intersection of East 49th Street and Harvard Avenue. Appellant stated his car had been struck and had sustained rear-end damage, but the other persons involved in the accident had fled the scene. Trusso accompanied appellant to the police station's parking lot in order to ascertain the extent of damage done to appellant's car. Appellant pointed out the vehicle. Although Trusso saw only a "fifty-cent-piece-sized dent"1 in the rear bumper area, he accepted appellant's inclination to file an accident report concerning the occurrence; therefore, Trusso invited appellant to return indoors to begin the process. Once inside, Trusso provided appellant with the initial forms, indicated a place where he could be seated to write the informa- tion, and requested his driver's license in order to verify appellant's ownership of the vehicle. Trusso then "ran" appel- lant's license. The resulting "printout" from the Ohio Bureau of Motor Vehicles ("BMV") indicated appellant's operator's license had been suspended. At that point, Trusso went to one of his col- leagues, Officer Richard A. Nemecek, explained the situation, and requested Nemecek's assistance in speaking with appellant. Nemecek agreed, taking a "voice recorder" with him. Appellant had finished writing a statement concerning the accident when the two officers returned to where he was seated. Trusso read appellant's statement, asked appellant whether "it was 1Quotes indicate testimony given by a witness at appellant's trial. -4- true to the best of his knowledge" and, upon appellant's assent, placed his name on appellant's statement in the appropriate box. Trusso then informed appellant of the BMV printout results, inquiring if he were aware of the suspension of his driving privileges. Appellant replied affirmatively. In order to clarify the situation, Trusso asked appellant if his accident report statement was accurate since, in it, appellant indicated he was driving his car when the accident had occurred. Trusso's persistence apparently began to aggravate appellant. "[T]hings started getting a little loud," attracting the attention of the other officer on duty at the time, Henry Brettrager. Brettrager approached to determine if Trusso and Nemecek needed assistance. Appellant indicated to the officers they must have misunder- stood him; he stated his son,2 Danny Osbourne, had driven the car. Trusso asked appellant if the officers could telephone Osbourne to verify the new information. Appellant told them his wife, who was in a nearby home babysitting their grandchildren, could give them their son's telephone number. Officer Brettrager telephoned appellant's wife, obtained Osbourne's telephone number, which was a North Royalton exchange, and then telephoned Osbourne. Osbourne seemed surprised and con- cerned to learn about the traffic accident in which his parents 2Although appellant referred to Danny Osbourne as his son, at appellant's trial, both appellant and Osbourne testified Osbourne was actually appellant's stepson. -5- were involved. In response to Brettrager's inquiry, Osbourne denied he had been driving his father's car. Brettrager reported this information to Trusso, who conveyed it to appellant. Appellant began to be abusive in his language, calling his son a f***ing liar. Nemecek notified appellant he had activated his voice recorder, hoping the knowledge that he was being recorded would cause appellant to be more circumspect with his words; however, appellant seemed only to become angrier. The officers asked appellant how it was possible for Osbourne to travel from Newburgh Heights to North Royalton in the short time since the accident occurred without a vehicle. Appellant indicated Osbourne walked. When this declaration was met with scepticism by the officers, appellant stated his son had not been driving appellant's car during the accident, but had driven appellant's car only to the police station. Appellant stated his wife had been driving his car at the time the accident had occurred. Trusso then directed Brettrager to proceed to the house where appellant's wife was located to obtain a statement about the accident from her. Since the house was only a short distance from the police station, Brettrager accomplished his mission within a few minutes. Appellant's wife seemed apprehensive about appel- lant's probable reaction but told Brettrager she was going to tell the truth. Appellant's wife stated that at the time of the accident, she was a passenger in the vehicle and that appellant had been driving. -6- Trusso confronted appellant with his wife's statement and read his Miranda rights to him. Appellant continued to swear at the officers, becoming very boisterous and vulgar in his epithets despite their cautions toward him. When appellant refused to withdraw or alter his statement concerning the accident, at approximately 4:00 p.m., Trusso informed appellant he was under arrest and cited him for the following violations of the Newburgh Heights Municipal Code ( NHMC ): 1) S335.07, Driving Under Suspension, Revocation or Restriction ( DUS ); 2) S303.11, Providing False Information to a Police Officer ( falsification ); and 3) S509.03(a)(2), Disorderly Conduct. The citations issued to appellant indicated a trial date in Newburgh Heights Mayor's Court of November 4, 1996. The record reflects that on the date set for trial, appellant entered a plea of not guilty to the charges, signed a waiver of his right to a speedy trial and requested a continuance. His request was granted to December 2, 1996. On December 2, 1996 appellant requested another continuance due to illness; his request was granted to December 16, 1996. The case, however, did not proceed on that date; the next notation on the mayor's court docket is the date December 30, 1996 and the statement, No further continuances. (Emphasis in original.) On January 6, 1997 appellant's case was called for trial. The mayor's court's docket notes appellant appeared with counsel and requested another continuance, which was granted to February 3, 1997. -7- On February 3, 1997 the record reflects appellant did not wish to enter into a plea agreement with the village concerning the charges. As a result of this impasse, three things occurred in the case, viz., 1) appellant's counsel notified the court and the vil- lage prosecutor he resign[ed] from his representation of appel- lant; 2) the charges against appellant were amended from violations of the NHMC to their corresponding state code counterparts;3 and 3) appellant's case was transferred from mayor's court to the Garfield Heights Municipal Court. On February 10, 1997 appellant was arraigned on the amended charges; he entered a plea of not guilty. On February 25, 1997 appellant's case was set for a March 20, 1997 pretrial hearing. The day before the pretrial hearing, appellant filed a letter with the trial court requesting a continuance of his case in order that he have time to look for and hire an attorney ***. Accordingly, the trial court reset appellant's case for bench trial on April 17, 1997. On April 17, 1997 appellant's case was called for trial. The trial court noted on the record that appellant had retained his attorney only five minutes previously; however, it refused any further postponement of the proceeding since this case has been pending for some time and it already had afforded appellant ample opportunity to obtain representation in the matter. 3The corresponding state code sections to which the charges against appellant were amended are, respectively, R.C. 4507.02, R.C. 4513.361 and R.C. 2917.11. -8- The village presented the testimony of Officers Trusso, Nemecek and Brettrager and introduced into evidence the following: 1) a copy of the report obtained from the BMV regarding appellant's driver's license; 2) a copy of a temporary protection order issued against appellant by the Parma Municipal Court; 3) Ohio Traffic Crash Witness Statements obtained from the persons who were in the other vehicle involved in the October 8, 1996 traffic accident appellant had reported; and 5) Nemecek's tape recording of most of the interview of appellant by the police. Appellant's counsel, although he did not make a motion for acquittal following the village's presentation of its case, called three witnesses in appellant's defense, viz., appellant himself, appellant's wife and Danny Osbourne. All three witnesses testified appellant was not driving his car at the time the accident occurred. Two defense exhibits also were entered into evidence: the Ohio Crash Witness Statements completed by appellant and his wife. Only appellant's wife's statement was signed by its author. Subsequently, the trial court found appellant guilty of all three charges. It imposed fines upon appellant of $1000 each on the DUS and falsification convictions and $100 on the disorderly conduct conviction but suspended $1400 of the total amount. The trial court also sentenced appellant to consecutive terms of incarceration of one hundred eighty days each on the first two -9- convictions but suspended one hundred eighty days of the sentence and placed appellant on inactive probation for two years.4 Appellant filed a timely appeal of his convictions and presents six assignments of error for this court's review. Appellant's assignments of error are set forth as follows: I. THE COURT FAILED TO HONOR THE DEFENDANT- APPELLANT'S REQUEST FOR A CONTINUANCE OF THE TRIAL SO THAT THE DEFENDANT'S COUNSEL COULD HAVE TIME TO PREPARE A COMPETENT AND ADEQUATE DEFENSE. II. THE DEFENDANT-APPELLANT WAS NOT PROVIDED WITH ADEQUATE NOTICE OF THE FACTS THAT (A) THE CHARGES OF (1) FALSIFICATION AND (2) DISORDERLY CONDUCT, WHICH CHARGES WERE DISMISSED BY THE NEWBURGH HEIGHTS MAYOR'S COURT, WERE REINSTATED BY THE PROSECUTOR FOR THE CITY (sic) OF NEWBURGH HEIGHTS, OHIO, IN THE GARFIELD HEIGHTS MUNICIPAL COURT, AND (B) THAT THE SOURCES OF THE CHARGES WAS CHANGED FROM THE CODI- FIED ORDINANCES OF NEWBURGH HEIGHTS TO THE STATUTES OF THE OHIO REVISED CODE. III. THE COURT ERRED IN THE ADMISSION OF PLAINTIFF'S EXHIBITS A, B, C, AND D. IV. THE COURT ERRED IN ITS FAILURE TO REVIEW ALL OF THE EVIDENCE, ESPECIALLY PLAIN- TIFF'S EXHIBIT E, BEFORE FINDING THE DEFENDANT-APPELLANT GUILTY OF ALL OF THE CHARGES. V. THE COURT ERRED IN ITS FAILURE TO PROVIDE TO THE COURT OF APPEALS PLAINTIFF'S EX- HIBIT E, WHICH EXHIBIT WAS, IN FACT, ADMITTED INTO EVIDENCE DURING THE TRIAL. VI. THE COURT ERRED IN ITS FINDING THE DEFEN- DANT GUILTY OF ALL CHARGES BY VIRTUE OF THE FACT THAT THE EVIDENCE PRESENTED BY THE PROSECUTION WAS NOT OF SUFFICIENT 4Appellant has been granted a stay of execution of his sentence pending this court's disposition of his appeal. -10- WEIGHT TO SUPPORT A FINDING OF GUILTY ON ALL COUNTS CHARGED. This court first is constrained to note that appellant's Assignment of Error No. I cites only the following authority for his argument: (a) *** the federal and Ohio (1) constitutions, (2) statutes, and (3) Rules of criminal procedure ***. Appellant's Assignments of Error No. III through VI cite no authority. App.R. 16(A)(7) requires the brief of an appellant to contain an argument with respect to each assignment of error presented for review and the reasons in support of the contentions, with cita- tions to the authorities [and] statutes *** on which appellant relies. *** (Emphasis added.) App.R. 12(A)(3) states the following: The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A). In Brinn v. Cutter (Dec. 9, 1993), Cuyahoga App. No. 63669, unreported, this court noted: [W]e have consistently refused to review assignments of error not properly briefed by parties. See, e.g., Convention Center Inn, Ltd. v. The Dow Chemical Co. (1990), 70 Ohio App.3d 243; Mays v. West Park Chevrolet, Inc. (Dec. 10, 1992), Cuyahoga App. No. 61548, unreported; Eagleye v. TRW. Inc. (Mar. 21, 1991), Cuyahoga App. No. 58084, unreported; Mooney v. Demchuk (Nov. 21, 1990), Cuyahoga App. No. 57714, unreported. Slip Op. at 6. See, also, Timmons v. Automated Packaging Systems, Inc.(Dec. 15, 1994), Cuyahoga App. No. 66577, unreported; Johnson -11- v. Bernard Group (May 28, 1998), Cuyahoga App. No. 72552, unre- ported. Since this court has no duty to rule on assignments of error that are not adequately briefed, appellant's Assignments of Error Nos. I and III through VI will be disregarded. In re Brown (1989), 60 Ohio App.3d 136; NorthCoast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342. In appellant's second assignment of error, citing only Crim.R. 4,5 appellant argues the trial court erred in failing to dismiss the charges against him for two reasons. Appellant first asserts two of the charges were dismissed by the mayor's court. Appellant further asserts he was not notified the charges had been amended from village code violations to violations of the Ohio Revised Code. The record however, belies both of appellant's assertions. The mayor's court docket sheet is included in the record on appeal; on it, the original charges against appellant each have a pen stroke across them with the corresponding Ohio Revised Code section located nearby. The final notation on the docket indicates the transfer of appellant's case to the municipal court. The mayor's court docket fails to indicate a dismissal of any of the three charges. The municipal court's notice of appellant's arraignment on these charges next appears in the record. The record reflects 5A review of the Ohio Criminal Rules indicates Crim.R. 7 is more applicable to appellant's argument. -12- appellant appeared at this arraignment on the amended charges and entered his written plea, which bears his signature. At trial, appellant's attorney stated appellant had told him two of the charges had been dismissed. The prosecutor, however, clarified the matter by stating that had been the intention only of the plea agreement, which appellant had refused. Appellant, him- self, did not dispute this clarification. Hence, the record reflects complete compliance with the re- quirements of the Ohio Criminal Rules. See, e.g., Cleveland Heights v. Perryman (1983), 8 Ohio App.3d 443. Since neither the falsificationnor the disorderly conduct charge was dismissed, and since appellant was arraigned and entered his plea to the three charges as amended, appellant's second assignment of error is meritless and is, accordingly, overruled. Appellant's convictions are 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 Garfield Heights Municipal 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 D. SWEENEY, J. and MICHEL J. CORRIGAN, J. CONCUR JUDGE KENNETH A. ROCCO 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 .