COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 75339, 75340, 75341 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MICHAEL DVORKIN (NO. 75339) : MICHAEL SHERMAN (NO. 75340) : UNITED PAWN, INC. (NO. 75341) : : Defendant-Appellants : DATE OF ANNOUNCEMENT MARCH 2, 2000 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case No. CR-360551 JUDGMENT: AFFIRMED IN PART AND REVERSED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor DIANE SMILANICK Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellants: LEONARD W. YELSKY Yelsky & Lonardo Co., L.P.A. 1050 Leader Building Cleveland, Ohio 44114 ALBERT A. GIULIANI DARRELL D. TYBURSKI 1540 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -2- JUDGE TERRENCE O'DONNELL: Three separate cases have been consolidated for the purposes of review in this matter. Here, Michael Dvorkin, Michael Sherman, and United Pawn, Inc., appeal from a judgment of the common pleas court entered pursuant to a jury verdict finding each guilty of receiving stolen property, forgery, uttering, obstructing justice, and tampering with evidence in connection with the theft of a Canon lap-top computer from the Cleveland Clinic Foundation by one of its employees, Gerald Brown. In his case, Dvorkin complains on appeal the trial court erroneously denied his motion for a new trial and denied admission of an Orion Blue Book in connection with the value of the computer, and he also complains that he received ineffective assistance of counsel. Sherman and United Pawn submitted a joint brief in which Sherman complains that the evidence does not support his conviction, that the verdict is against the manifest weight of the evidence, and that the court permitted the jury to utilize the acquisition cost and excluded the Orion Blue Book as evidence of the computer's value. United Pawn asserts the court erroneously imposed consecutive sentences. After a careful review of the record, we affirm in part and reverse in part the decision of the trial court. The record reveals in February 1996, Sergeant Robert Beck, a Cleveland Clinic Police Officer, began to investigate Brown, a Cleveland Clinic housekeeping employee, relative to a series of thefts, including the Canon lap-top computer at issue in this case. -3- Beck contacted the Cleveland Police Department Fraud Unit to obtain a search warrant for United Pawn; he erroneously listed an internal tracking ELA number instead of the computer's serial number on the warrant. In executing the search warrant, Beck located the computer at United Pawn, but neither Sherman nor Dvorkin could produce the bill of sale for the computer at that time. Subsequently, the grand jury indicted Dvorkin, Sherman, and United Pawn on two counts of receiving stolen property and one count each of forgery, uttering, obstruction of justice, and tampering with evidence. At a pretrial on August 29, 1998, counsel for Dvorkin, Sherman, and United Pawn produced a bill of sale for the lap top computer dated August 10, 1996, which included Brown's name, address, signature, and a description of the lap top computer which contains ELA number 001912. The bill of sale had been prepared by United Pawn's trainee, Artur Makarian, who paid Brown fifty dollars for the computer. The cases were consolidated at trial, and the state called Brown who testified that he signed a bill of sale at United Pawn. Next, the state called David Strothcamp, a systems credit manager for the Cleveland Clinic, who testified the Clinic purchased the computer on April 26, 1995 for a price of $2,966.90. Strothcamp also testified that he compiled a list of the other equipment stolen by Brown and the price of those items. The state also called Betty Ching, a registered nurse, who testified that she -4- checked the lap top computer on a daily basis to ensure its proper functioning, and she reported it missing on August 20, 1996. Significantly, Sergeant Beck testified that the ELA number which he listed on the search warrant did not appear anywhere on the computer, but only on the search warrant he served on United Pawn. When the state rested its case, counsel for Dvorkin and Sherman and United Pawn moved for acquittal, but the court denied the motion. In his case-in-chief, Dvorkin testified that according to the Orion Blue Book, the computer had a wholesale value of one hundred forty to one hundred sixty dollars, but that Makarian had valued the computer at fifty dollars, because it did not operate. Counsel for Sherman and United Pawn then called Jonathan Sabo, a police officer for the Cleveland Clinic, who testified he interviewed Ching when she reported the computer missing. Sabo filled out a theft report and testified that Ching noticed the computer missing three weeks prior to August 20, 1996. At the end of the case, counsel for Dvorkin offered the Orion Blue Book as evidence, but the court refused to admit it into evidence. Following its deliberation, the jury returned verdicts finding Dvorkin, Sherman, and United Pawn not guilty of one of the counts of receiving stolen property, but guilty of receiving stolen property in connection with the lap top computer and guilty of forgery, uttering, obstructing, and tampering in connection with the bill of sale. The court sentenced Dvorkin and Sherman to concurrent terms of ten months incarceration and imposed a $1,000 -5- fine on their convictions for receiving stolen property, forgery, uttering, and obstructing justice, and further imposed a concurrent one-year sentence and a $2,500 fine for tampering with evidence. The court sentenced United Pawn to pay fines of $1,000 for its receiving stolen property, forgery, uttering, and obstruction of justice convictions and a fine of $2,500 for tampering with evidence resulting in an aggregate fine of $6,500. Thereafter, Dvorkin, Sherman, and United Pawn filed a motion for a new trial, which the court denied. Dvorkin filed a supplemental motion in support of a new trial, which the court also overruled. Dvorkin, Sherman, and United Pawn appeal from their convictions and sentences. Dvorkin (Case No. 75339) assigns three errors for our review, and Sherman (Case No. 75340) and United Pawn (Case No. 75341) raise six assignments of error. The Dvorkin Appeal Case No. 75339 I. THE TRIAL COURT ERRED BY DENYING DEFENDANTS MOTION FOR NEW TRIAL. Dvorkin urges the trial court erred in denying a new trial because the prosecutor failed to provide defense counsel with Sabo's report which contradicted Ching's testimony, and also because Makarian's testimony constituted newly discovered evidence. The state maintains the court properly denied the motion for new trial because Sabo's report became available to Dvorkin at an August 29, 1997 pretrial, and he could have cross-examined Ching based on it but chose not to do so, and the state further argues -6- Dvorkin did not prove Makarian's testimony would be credible, material, or reliable. The issue here concerns whether the court erroneously denied the motion for new trial based on Sabo's report and Makarian's testimony. We begin by noting Crim. R. 33(A) provides: (A) Grounds A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * (2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state; * * * (6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given * * *. In Dayton v. Martin (1987), 43 Ohio App.3d 87, 90, the court stated: * * *[B]efore a new trial can be granted upon the basis of newly discovered evidence, the defendant must show that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. In this case, the record reveals counsel for Dvorkin had the opportunity, but chose not to cross-examine Ching about Sabo's -7- report or call Sabo on direct examination. Counsel for Sherman and United Pawn did call Sabo who testified that Ching noticed the computer missing three weeks prior to August 20, 1996. Thus, the jury had the opportunity to evaluate this inconsistency in the testimony. Regarding Makarian's testimony which Dvorkin believes constitutes newly discovered evidence, the record reveals that at the August 29, 1997 pretrial, defense counsel presented a bill of sale for purchase of the computer. At that time, Dvorkin knew the bill of sale contained Makarian's handwriting. Dvorkin, however, did not subpoena Makarian to testify even though he knew that such testimony could be exculpatory at trial. Hence, there is no suggestion that any newly discovered evidence exists in this case, nor that it discloses a strong probability that the outcome of the trial would change if a new trial were held. Therefore, the trial court did not abuse its discretion when it denied the motion for new trial. Accordingly, this assignment of error is not well taken. II. THE TRIAL COURT ERRED IN DENYING ADMISSION OF DEFENDANT'S EXHIBIT R . DEFENDANT'S EXHIBIT R BEING PROOF OF VALUE IN CONNECTION WITH A THEFT CASE. Dvorkin argues the court should have admitted the Orion Blue Book into evidence concerning the valuation of the Canon lap top computer. The state maintains the trial court properly excluded the Orion Blue Book because Dvorkin had already testified as to the computer's value, and because questions with respect to the admissibility of evidence are left to the trial court. The issue -8- here concerns whether the court properly excluded the Orion Blue Book. In this regard, Evid.R. 104 states: (A) Questions of admissibility generally Preliminary questions concerning * * * the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (B) Relevancy conditioned on fact When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Further, Evid.R. 403 states: (B) Exclusion discretionary Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. In State v. Lewis (1990), 70 Ohio App.3d 624, the court stated: A trial court has discretion to exclude evidence if its probative value is substantially outweighed by consideration of needless presentation of cumulative evidence. * * * Absent a clear and prejudicial abuse of discretion, a trial court's determination not to admit evidence shall not be reversed on review. (Citations omitted.) Regarding valuation, Strothcamp testified for the state that the computer cost $2,966.90 when the Cleveland Clinic purchased it on April 26, 1995, and Dvorkin's counsel stipulated to this amount at trial. Further, Dvorkin testified the Orion Blue Book listed the value of the computer at fifty dollars and believed United Pawn -9- could resell it for one hundred forty to one hundred sixty dollars if the computer had been in working condition. The jury had the opportunity to hear this testimony, to evaluate the witnesses' credibility, and to render its verdict. Admission of the Orion Blue Book is nothing more than adding cumulative evidence to the issue of valuation. The court had discretion to admit the Blue Book with the obligation to determine whether the probative value is substantively outweighed by consideration of additional cumulative evidence, and therefore, our review does not reveal a clear abuse of discretion. Accordingly, this assignment of error is not well taken. The third assignment of error states: III. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL DID NOT SUBPOENA ARTUR MAKARIAN BEFORE TRIAL AND DID NOT SUBPOENA MRS. CHING AFTER THE STATED RESTED ITS CASE. Dvorkin claims ineffective assistance of counsel because his attorney failed to subpoena Makarian in connection with the bill of sale and failed to subpoena Ching regarding the date that she reported the computer missing. The state contends Dvorkin failed to prove deficient performance by his counsel or that the outcome of the trial would have been different. The issue here concerns whether Dvorkin received effective assistance of counsel. In considering a claim of ineffective assistance of counsel, we apply the two-part test of Strickland v. Washington (1984), 466 U.S. 668, provides: * * * First, the defendant must show that counsel's -10- performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. The burden of showing deficient performance is a heavy one since counsel in Ohio are presumed competent. State v. Smith (1981), 3 Ohio App.3d 115, 120. In evaluating defense counsel's performance, a reviewing court must accord deference to counsel's strategic choices from counsel's perspective at the time of trial, without the benefit of hindsight. Strickland, supra. In order to show prejudice, the defendant must show that a reasonable probability exists that, but for counsel's error, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. In this case, counsel did not subpoena Makarian to testify; however, on direct examination, Dvorkin identified Makarian's handwriting on the bill of sale. Further, the jury heard Ching and Sabo testify as to the date that she reported the computer missing and the jury had the opportunity to evaluate any inconsistencies in their testimony. We cannot say counsel's failure to subpoena Makarian or Ching constituted deficient performance or deprived him of a fair trial. In addition, Sherman failed to demonstrate that but for Makarian or Ching's testimony, the outcome of the trial would have been different. Therefore, this assignment of error is overruled. The Sherman and United Pawn Appeals -11- Case Nos. 75340, 75341 I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING APPELLANTS [SIC] MOTION FOR NEW TRIAL. This argument mirrors that presented by Dvorkin. Based on our previous disposition of this assignment of error, it is not well taken and is overruled. II. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANTS CONVICTIONS. VI. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Sherman argues both that his convictions are not supported by sufficient evidence and that they are against the manifest weight of the evidence. The state contends it presented sufficient evidence at trial to sustain Sherman's convictions. Thus, the issues here concern whether Sherman's convictions are supported by sufficient evidence and manifest weight of the evidence, concepts frequently confused with each other. The consideration of these assignments of error presents this court with the opportunity to again clarify the distinction between sufficiency of the evidence and to distinguish it from manifest weight of the evidence. The test for sufficiency of the evidence raises a question of law to be decided by the court before a jury may receive and consider an offense. The test for sufficiency involves viewing the probative evidence and inferences therefrom in a light most -12- favorable to the prosecution to determine whether the state has provided evidence on the essential elements of the offense. As the test itself states, the court may not weight the evidence to resolve a question of sufficiency. In State v. Martin (1983), 20 Ohio App.3d 172, the court addressed this issue: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. (Citations omitted.) Further in State v. Jenks (1991), 61 Ohio St.3d 259, the court stated in paragraph two of its syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, * * *, followed.) In this case, Brown testified that he signed the bill of sale, but denied that he filled in any of the information contained on the bill of sale. At trial, Dvorkin identified Makarian's handwriting on the bill of sale. The date contained on the bill of sale is August 10, 1996, ten days prior to the theft, and included the ELA number, which did not appear anywhere on the computer, only on the search warrant. Finally, Ching remained steadfast that she reported the computer stolen on August 20, 1996. Based on the -13- testimony combined with reasonable inferences drawn therefrom, the trier of fact could have found all the essential elements of the offenses beyond a reasonable doubt. Only after the court resolves the question of whether each element of the proscribed offense has been found, beyond a reasonable doubt, may we then proceed to question whether the judgment of the trier of fact was against the manifest weight of the evidence. In Martin, the court explained as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38. (Citations omitted.) With respect to forgery, the state has the burden to prove that Sherman, with the purpose to defraud, forged a writing so that it purported to be genuine when it actually was spurious. In this regard, Sergeant Beck testified that the ELA number did not appear on the computer, but only on the search warrant. Further, the prosecution presented evidence that Makarian dated the bill of sale August 10, 1996, even though Ching testified that she checked the computer daily and did not report it missing until August 20, 1996. With respect to uttering, the state has the burden to prove that Sherman published, transferred, or circulated the forged document. The record reveals that defense counsel for Sherman -14- published the bill of sale when he gave it to the prosecutor at the pretrial. With respect to the charge of tampering with evidence, the state has the burden to prove that Sherman, knowing of an official proceeding or investigation, made or presented or used a document knowing it to be false to mislead a public official. Finally with respect to obstructing justice, the state has the burden to prove that Sherman, with the purpose to hinder discovery, apprehension, prosecution, conviction or punishment, communicated false informa- tion. As stated above, the prosecution presented evidence concerning the date of the bill of sale and the use of the ELA number instead of the computer's serial number. After weighing this evidence, as we are required to do under Martin, we conclude the state presented credible evidence from which the jury could reasonably have determined Sherman's guilt. Therefore, we cannot conclude the jury clearly lost its way and created a manifest miscarriage of justice. Accordingly, this assignment of error is overruled. III. THE TRIAL COURT ERRED BY SENTENCING APPELLANT UNITED PAWN TO CONSECUTIVE SENTENCES ON COUNTS 2, 5 & 6. United Pawn argues the court erroneously imposed consecutive sentences for forgery, uttering, obstructing, and tampering, which it claims are allied offenses of similar import and urges that failure to raise the issue of merger at trial amounts to plain error. The state maintains the offenses are not allied offenses of similar import and United Pawn's failure to object to sentencing in -15- the trial court constitutes waiver and precludes appellate review. App.R. 5(C)(2) states: When a criminal defendant has filed a notice of appeal pursuant to App. R. 4, the defendant may elect to incorporate in defendant's initial appellate brief an assignment of error pursuant to R.C. 2953.08(C), and this assignment of error shall be deemed to constitute a timely motion for leave to appeal pursuant to R.C. 2953.08(C). United Pawn challenges the imposition of consecutive sentences imposed in this case. In accordance with App.R. 5(c)(2), this assignment of error is considered as a motion for leave to appeal, and we grant that motion and find in this case, uttering and tampering with evidence are allied offenses of similar import. Accordingly, imposition of consecutive sentences for those two offenses is not permitted in this case, and counsel had no duty to raise the issue in the trial court. In its brief filed in our court, United Pawn argues the offense of forgery, uttering, obstruction of justice and tampering with evidence are all allied offenses of similar import, and therefore, the fines for these convictions should not aggregate $5,500. In this case, the indictments for these offenses included the following elements: -16- 1. Forgery in violation of R.C. 2913.31(A)(2): (A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following: * * * (2) Forge any writing so that it purports to be genuine when it actually is spurious * * *; 2. Uttering in violation of R.C. 2913.31(A)(3): * * * (3) Utter, or possess with purpose to utter, any writing that the person knows to have been forged. 3. Obstructing justice in violation of R.C. 2921.32(A)(5): (A) No person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for crime or to assist another to benefit from the commission of a crime, * * *shall do any of the following: * * * (5) Communicate false information to any person. 4. Tampering with evidence in violation of R.C. 2921.12(A)(2): A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following: * * * (2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation. In Newark v. Vazirani (1990), 48 Ohio St.3d 81, the court stated: Under R.C. 2941.25, a two-tiered test must be undertaken -17- to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. In this case, the record reflects the forgery and uttering charges stem from a fraudulent bill of sale for the computer purportedly written by Makarian and dated August 10, 1996, and the separate act of its delivery to the prosecutor by United Pawn on August 29, 1998 in an effort to affect the outcome of this case. Under these circumstances, the charges of forgery and uttering do not constitute allied offenses of similar import; nor do the crimes of obstructing justice and tampering with evidence constitute allied offenses of similar import because the element of these crimes are such that commission of one does not result in commission of the other. Forgery and tampering with evidence are not allied offenses. See, State v. Bounds (1995), 107 Ohio App.3d 700. However, here, uttering and tampering with evidence share the same elements in that a false writing had been presented to corrupt the outcome of a proceeding. This assignment of error is therefore sustained in part and overruled in part. IV. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO UTILIZE THE ACQUISITION COST FOR THE LAP TOP COMPUTER TO DETERMINE VALUE AND THE EVIDENCE WAS INSUFFICIENT TO PROVE THE VALUE OF THE LAP TOP AT THE TIME OF THE -18- OFFENSE. V. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT VALUE WAS TO BE DETERMINED ACCORDING TO REPLACEMENT COST RATHER THAN FAIR MARKET VALUE AND BY EXCLUDING APPELLANTS EVIDENCE OF VALUE CONTAINED IN THE ORION BLUE BOOK. Sherman claims the court erroneously permitted the jury to use the acquisition cost of the computer to determine value, and the court failed to provide the jury with an instruction concerning valuation. The state maintains if a party fails to object to a jury instruction, it is waived on appeal. The issue here concerns whether the court erred by failing to give the jury an instruction concerning valuation. In order to review jury instructions upon appeal, we must examine the specific charge at issue in the context of the entire charge, not in isolation. State v. Thompson (1987), 33 Ohio St.3d 1. Further, in State v. Underwood (1983), 3 Ohio St.3d 12, syllabus, the court stated: The failure to object to a jury instruction constitutes a waiver of any claim of error, * * *. (Citations omitted.) In this case, the record reveals Sherman's counsel did not object to the court's instruction relating to valuation. Thus, in accord with Underwood, counsel's failure in this respect, constitutes a waiver of the error. Accordingly, this assignment of error is overruled. Judgment affirmed in part and reversed in part. -19- It is ordered that appellee recover of appellants 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 defendants' convictions 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. ANN DYKE, A.J., and TIMOTHY E. McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL 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. 22. 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 .