COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72765 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : JAMES MADDOX : OPINION : Defendant-Appellant : Date of Announcement of Decision: JUNE 4, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. 347587 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES EDWARD M. GRAHAM, ESQ. Cuyahoga County Prosecutor 11705 Detroit Avenue MARK R. MAJER, Assistant Lakewood, Ohio 44107 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, J.: Defendant-appellant James Maddox appeals from his conviction following a bench trial for receiving stolen property/motor vehicle (R.C. 2913.51). Defendant contends the trial court erred in considering his prior criminal offense committed more than ten years prior to trial and in limiting cross-examination of a prosecution witness. Defendant also contends the State failed to prove an essential element of the crime beyond a reasonable doubt. We find no error and affirm. The State presented its case-in-chief through Officer James Dzuiba of the Cleveland Police Department. Officer Dzuiba testified that on December 25, 1996 at 9:10 a.m. he was on routine patrol along with Officers Baeppler and Marschall. They stopped at the intersection of Lakeview and Greenview in Cleveland. They observed defendant in a Chevy Blazer, stop at the intersection and upon seeing the squad car, make a strange face. The officers followed his car because of this suspicious behavior. Once they began to follow the defendant, he accelerated and drove over the sidewalk. The officers then turned on their siren and overhead lights and chased him. After being pursued for about two blocks, defendant turned into an apartment building driveway and jumped out of the Blazer and proceeded to run through the apartment complex. When he was apprehended, a screwdriver was discovered on his person. The steering column of the car had been peeled. Officer Dzuiba testified that defendant had no keys on him and his heart was beating very fast. A check on the vehicle revealed it was a -3- stolen vehicle from Cleveland Heights and registered to Dr. Gary Sweeney. The officers arrested the defendant. The State rested upon Officer Dzuiba's testimony. The defense called the defendant himself and Frank McDonall as witnesses. The defendant testified he was going to the dumpster to drop off some trash when a Blazer pulled up behind him and two people jumped out of the vehicle. The police walked right past the driver of the Blazer and arrested him. Defendant explained that on the day of the crime he was helping his friend move from the apartment building and the screwdriver found on him was being used to take down curtains at the friend's apartment. Defendant said the friend's name was Frank and that he did not know his last name. He claimed he began helping the friend Christmas Eve and stayed all night helping him pack. Frank McDonall testified that on Christmas Eve the defendant and several others spent the night helping him pack. He identified the screwdriver found on the defendant as his. He admitted that in spite of all the help he had packing, one month later he was still living at the apartment. He admitted that defendant took the curtains down about 14 hours prior to his arrest and could not explain why defendant still had the screwdriver the next morning. On rebuttal, the State presented the testimony of Officers Marschall and Baeppler which substantially corroborated Officer Dzuiba's direct testimony. They also testified that they saw defendant exit from the driver's side door and never lost sight of -4- him while chasing him. They said they did not see anyone else in the vicinity of the Blazer except for the defendant. Based on the above evidence, the trial court found defendant guilty as charged and placed him on community-based probation and ordered him to pay $4,707.91 in restitution. We will address defendant's assignments of error in the order presented. I. THE COURT, AS TRIER OF FACT, ERRED BY SUA SPONTE BRINGING IN APPELLANT'S PRIOR CRIMINAL RECORD FROM MORE THAN 10 YEARS PRIOR DURING EXAMINATION OF APPELLANT BY THE COURT. The defendant alleges the court committed error by inquiring about a prior criminal offense which occurred over ten years ago in Flint, Michigan. In support of this position, the defendant cites Evid.R. 609(B). Evid.R. 609(B) states as follows: (B) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation, or shock probation, or parole, or shock parole imposed for the conviction, whichever is the later date, unless the court determines, in the interests of justice that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. *** The record before us is unclear as to whether the defendant's release date from prison was ten or thirteen years ago. The court remarked: Then we go back to a Flint, Michigan problem in 1984, which is thirteen (13) years ago when you were released out of prison. That would have been ten (10) years. (Tr. 72). It appears the trial judge was referencing the fact the defendant was -5- incarcerated from 1984 to 1987. Therefore, the conviction would fall within the ten year time frame, i.e., the period following the point from which defendant's confinement ended. Under those circumstances, we find no violation of Evid.R. 609(B). It is defendant's burden to demonstrate that the prior conviction exceeded the time limit of Evid.R. 609(B). State v. Franklin (July 27, 1989), Cuyahoga App. No. 55604/55684, unreported at 22. Since we are without the information necessary to determine whether Evid.R. 609(B) was violated, we presume regularity in the trial court's actions. Id. In any event, the admission or exclusion of evidence lies within the trial court's sound discretion. State v. Dunlap (1995), 73 Ohio St.3d 308, 316; State v. Kinley (1995), 72 Ohio St.3d 491, 497; State v. Sage (1987), 31 Ohio St.3d 173 paragraph two of the syllabus. The term 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. Moreland (1990), 50 Ohio St.3d 58, 61. We find no abuse of discretion here. Assignment of Error I is overruled. II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF CONFRONTATION BY THE COURT RESTRICTING HIS CROSS-EXAMINATION OF A PROSECUTION WITNESS. The defendant claims his constitutional rights were violated by the trial court restricting defense counsel's questions on cross-examination. Defense counsel inquired of Officer Marschall: Did he [Officer Dzuiba] mention to you why he was following the Blazer? (Tr. 128). The prosecution objected and the judge -6- sustained the objection. Defense counsel argues that the exclusion of this testimony denied defendant's constitutional right to confrontation. However, this right exists to insure the defense has an adequate opportunity to ask questions of prosecution witnesses. It does not give the defendant carte blanche to ask any conceivable question. State v. Lopez (1993), 90 Ohio App.3d 566, 575; State v. Land (Oct. 2, 1997), Cuyahoga App. No. 70875/70876, unreported at 11; State v. Carras (Aug. 27, 1992), Cuyahoga App. No. 61260, unreported at 14. The question posed by defense counsel would clearly require an answer based on hearsay. Assignment of Error II is overruled. III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT AN ESSENTIAL ELEMENT OF THE CRIME CHARGED. Defendant was charged with receiving stolen property, an offense defined as follows by R.C. 2913.51: No person shall receive, retain or dispose of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense. Defendant claims there was no evidence presented that the vehicle was stolen outside of the police radio broadcast confirming that fact. Defendant claims the radio information was hearsay. The State relies on State v. Thompkins (1997), 78 Ohio St.3d 380 for the proposition that circumstantial evidence can be used to prove an element of the crime. The case at bar provides strong circumstantial evidence of the defendant's complicity in receiving stolen property. -7- The evidence showed that Officer Dzuiba observed the defendant make a strange face when he saw the police car, causing the officer to become suspicious; when the officers followed defendant he made an erratic turn and ran over the curb; when the officers then activated their siren and overhead lights, defendant did not stop but made several other evasive turns before he stopped and bailed out of the car running; when caught defendant's heart was beating fast; he was driving a car owned by another person with a peeled steering column; he had no keys; and he was found to have a screwdriver on his person. All of this evidence provided strong circumstantial evidence that the car was stolen and of defendant's involvement in the crime. State v. Tisdale (Nov. 10, 1988), Cuyahoga App. No. 54605/54685, unreported (peeled steering column, car's identification numbers missing and defendant's conduct provided circumstantial evidence car stolen). Therefore, even if the radio broadcast was hearsay, the other evidence presented was legally sufficient to establish the essential elements of the crime. Assignment of Error III is overruled. Judgment affirmed. -8- 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. O'DONNELL, J., CONCURS. BLACKMON, A.J., CONCURS IN JUDGMENT ONLY. 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 .