COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72853 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ANTHONY BEASLEY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-346960 JUDGMENT : REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Richard J. Bombik Martina Kulick Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Daniel Scully Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: Appellant, Anthony Beasley, appeals his convictions of rape and assault by the trial court on grounds of ineffective assistance of counsel, improper jury instruction, and the severity and inappropriateness of the imposition of the maximum penalties allowed by law. Defendant was charged with three counts of rape, one count of kidnapping, and one count of felonious assault. Each count also carried a notice of prior conviction and a repeat violent offender specification- both of which stemmed from the same conviction for aggravated robbery in 1981. After the close of the state's case, the court dismissed, pursuant to the defense's Crim.R. 29 motion, two counts of rape. Thereafter, the jury returned a verdict of guilty on the first count of rape, not guilty on the charge of kidnapping, and guilty of the lesser included offense of felonious assault. The trial court sentenced appellant to serve concurrent terms of incarceration of ten years for the rape conviction and six months for the assault with credit for time served. The repeat violent offender specifications were dismissed due to lack of physical harm. Appellant's appeal assigns four errors for our consideration. -3- I. Appellant's first assignment of error provides: I. THE FAILURE OF THE TRIAL COURT TO INCLUDE THE DEFENSE'S PROPOSED WRITTEN JURY INSTRUCTIONS IN THE RECORD OF THE CASE HAS PRECLUDED THE APPELLANT FROM ARGUING ON APPEAL THAT THE TRIAL COURT ERRED IN NOT ALLOWING THOSE PROPOSED INSTRUCTIONS AND HENCE HAS DENIED HIM DUE PROCESS OF LAW AS PROVIDED UNDER THE CONSTITUTIONS OF OHIO AND OF THE UNITED STATES. Jury instructions should provide proper guidance, aid, and assistance to the jury members so that a clarity of the issues and the law that is applicable to the facts is clearly established. R.C. 2945.11. Pursuant to Crim.R. 30, if a requested special jury instruction is pertinent to the evidence and legally correct, the trial judge must include the substance of it in his charge. State v. Braxton (1995), 102 Ohio App.3d 28, 43, 659 N.E.2d 970. See, also, State v. Rivers (1977), 50 Ohio App.2d 129, 361 N.E.2d 1363. The trial court need not recite the requested instruction verbatim. State v. Nolan (1973), 36 Ohio St.2d 79, 303 N.E.2d 865, overruled on other grounds. Rather, the court may use its discretionary judgment to rephrase the instruction as long as the same principles of law are communicated. State v. Scott (1987), 41 Ohio App.3d 313, 535 N.E.2d 379. Here, appellant's counsel submitted and requested that jury instructions be entered into the record concerning the credibility of the witnesses and expert testimony. The trial court and the attorneys, after three sessions, finally reached an agreement as to the jury charge and exactly what form it would take. Specifically, -4- the trial court adopted wholly, albeit somewhat rewritten, appellant's counsel's instruction as to credibility. The court partially accepted the jury charge as written by appellant's counsel concerning expert witnesses. The court's instructions concerning expert witnesses included the following: We also had an expert. Normally a witness may not express an opinion. However, those who follow a profession or special line of work may express their opinion because of their education, their knowledge and their experience. Such testimony is admitted for whatever assistance it may provide to help you arrive at a just verdict. The purpose of this testimony is to assist you in arriving at a just and correct verdict, and, insofar as this testimony had the effect of aiding in your deliberations, it should be used. Its purpose shouldn't be to supplant, but to supplement your judgment. The testimony of the expert witness should be given such weight as the witness's skill, training, knowledge and veracity entitled that witness to receive. The degree of credit or the weight that you give to the testimony of every witness, including one referred to as an expert, is a question for the jury. Everybody understands that? Good. Clearly, even though the trial court did not recite the instructions as offered by appellant's counsel verbatim, the instructions,as rendered, fully and competently informed the jury of the proper principles of law and the necessary implications of a witness's testimony. The charge as given for credibility, in the judge's own words, was not changed but merely reworded. As to the instructions concerning expert testimony, the above excerpt was sufficient in that it states the law in a concise and adequate manner. Although the appellant's requested instructions have not been included in the record, there has been no showing that the charge given on expert testimony was incorrect or that there was -5- any prejudice from the failure to expand the charge on expert testimony. This assignment of error is overruled. II. Appellant's second assignment of error states: II. TO THE EXTENT THAT THE APPELLANT'S TRIAL COUNSEL IS RESPONSIBLE FOR ANY FAILURE TO INCLUDE HIS PROPOSED JURY INSTRUCTIONS IN THE RECORD OF THE CASE AT BAR, THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS. As a result of the foregoing, appellant's second assignment of error is rendered moot. See, App.R. 12(A)(1)(c). III. Appellant's third assignment of error states: III. THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM SENTENCE FOR THE APPELLANT'S RAPE CONVICTION WITHOUT FINDING THAT THE CASE MET THE MANDATORY STATUTORY CONDITIONS FOR IMPOSING A MAXIMUM SENTENCE. R.C. 2929.14(C) provides in pertinent part: [T]he court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. Senate Bill 2 provides that an appellate court must review a trial court's decision and its reasons for imposing a maximum sentence. State v. Banks (Nov. 20, 1997), Cuyahoga App. 72121. R.C. 2953.08(G)(1) requires that the trial court record must affirmatively support the judge's sentence. According to R.C. 2929.13(2)(b), the trial court in imposing sentence must provide -6- reasons for imposing the maximum sentence for a single offense. Banks, supra. In the instant case appellant neither possessed nor trafficked drugs and the specifications concerning repeat violent offenders were dismissed. Accordingly, the proper inquiry and the only basis upon which appellant's sentences are justifiable is if appellant either committed the worst form of the offense or he posed the greatest likelihood of committing future crimes. After a careful review of the record, the trial court failed to make an explicit finding on the record that indicates the appellant either committed the worst form of the crime of rape or posed a threat on society by possessing a great likelihood of committing future crimes. Accordingly, appellant's third assignment of error is well taken. IV. Appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED BY FAILING TO SPECIFY IN ITS SENTENCING JOURNAL ENTRY THAT IT HAD FOUND THAT THE APPELLANT WAS NOT A HABITUAL SEX OFFENDER. On June 17, 1997, the trial court amended its original sentencing entry making a specific finding that the appellant was not a habitual sex offender. As a result, appellant's fourth assignment of error is rendered moot and without merit. -7- We vacate the sentence imposed by the trial court and remand this case to allow the court to resentence the appellant consistent with this opinion. Remanded for resentencing. -8- This cause is remanded for resentencing. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA PRESIDING JUDGE PATTON, J., and MICHAEL J. CORRIGAN, J., CONCUR. 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 .