COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78482 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY : -vs- : AND : : OPINION WILLIAM NOVAK : : Defendant-Appellant : : DATE OF ANNOUNCEMENT : JULY 5, 2001 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Common Pleas Court : Case No. CR-384399 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For Plaintiff-Appellee: William D. Mason Cuyahoga County Prosecutor Brendan J. Mackin Assistant Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: Michael L. Wolpert Jerome Silver & Associates 3421 Prospect Avenue Cleveland, Ohio 44115 ANNE L. KILBANE, J.: This is an appeal from a jury verdict of guilty following trial before Visiting Judge William Mahon. William Novak, -2- convicted on four counts of intimidation for simulating a bomb, claims that the judge erred in overruling his motion to suppress evidence, in denying him the right to present defense witnesses or to obtain a continuance to secure witnesses, in denying his motions for appointment of experts at State expense, and in denying his motions for directed verdict or new trial. We affirm the judgment. From the record we glean the following: After years of proceedings, the Cuyahoga County Treasurer obtained a judgment of foreclosure against Novak's home at 2299 W. 11th Street in Cleveland and on September 13, 1999, the property was sold for the minimum bid of $13,776.49, the total amount of delinquent taxes and associated fees. On October 13, 1999, the Cuyahoga County Sheriff's Department posted an eviction notice at that address notifying Novak to vacate the property by November 23, 1999, and a second notice on both the house and Novak's car two weeks later. On both occasions neighbors informed the deputies that he was in the house, but he did not answer the door. On November 22, 1999, Novak was arrested for municipal housing code violations, and taken into custody. On November 23, four deputies were assigned to carry out the eviction and, although aware that Novak had been arrested and was in custody, one knocked on the door to ensure no one else was inside before using force to enter. When no one responded, Adam Waldbaum, the new owner of the house, instructed the deputies to enter by force instead of waiting for a locksmith. The deputies forced the door open and immediately -3- saw a device that looked like a bomb set up on an interior stairay. The device consisted of a propane tank that appeared to be connected to an electrical outlet, possibly through an electrical conduit that also employed an unidentified black box and a computer keyboard. A flexible gas pipe also extended from the propane tank and extended up the side of the wall. The deputies immediately left the house and called a bomb specialist, who subsequently determined that the device was inoperable. On December 6, 1999, Novak was indicted on four counts of intimidation,R.C. 2921.03, a third-degree felony, with each count containing a peace officer specification, R.C. 2935.01.1 The case was originally assigned to Judge Mary J. Boyle who, after Novak's first appointed lawyer was permitted to withdraw, appointed the Cuyahoga County Public Defender's Office to represent him. Thereafter, Novak filed numerous pro se motions and insisted on personally participating in his own defense.2 Novak claimed that the deputies' discovery of the alleged bomb was inadmissible because their forcible entry into his house was an 1The indictment was amended to delete the peace officer specifications before trial. 2Although Novak was subsequently found competent to stand trial, the record of this case presents a strong argument for raising the standard of competency for one who seeks to represent himself. Cf. Godinez v. Moran (1993), 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (federal constitution allows same standard to determine competency to stand trial and competency to represent oneself, although states may adopt more stringent standards); State v. Watson (1998), 132 Ohio App.3d 57, 63, 724 N.E.2d 469, 473 (adopting federal standard). -4- unreasonable search, and a hearing on his motion to suppress was held. On March 3, 2000, the judge denied the motion and ordered Novak to undergo a psychiatric exam to determine his competency to stand trial. On March 24, 2000, the Public Defender filed a motion to withdraw as counsel, renewing an oral request to withdraw made and denied during the suppression hearing. On May 19, 2000, the judge found Novak competent to stand trial, granted the motion to withdraw, and appointed a third lawyer to represent him. The case was transferred to the docket of Presiding Judge Richard McMonagle who scheduled it for a July 10, 2000 trial. Thereafter, the judge addressed Novak's pending pretrial motions: he denied a motion to dismiss on speedy trial grounds, a motion to extend the deadline for filing pretrial motions, a motion in limine to exclude evidence, a motion to dismiss for failure to provide a preliminary hearing, and a renewed motion to suppress evidence based on the allegedly unlawful entry, stating the motion had already been ruled on. Four days before trial, Novak submitted a witness list that included several judges and county officials. After trial commenced before Judge Mahon, he ordered Novak to submit a summary of the expected testimony of each witness. The summary briefly explained that each witness was to testify about his or her knowledge of the earlier foreclosure and eviction proceedings that led to the deputies' November 23, 1999 arrival and discovery of the alleged bomb. -5- Novak participated in his own representation at trial, and cross-examined three of the State's six witnesses. He also interposed objections throughout trial, including objecting to his lawyer's opening statement and during his lawyer's cross- examination of a witness. During opening statements, Novak was removed from the courtroom for a brief period3 because he insisted on presenting oral motions or statements in the jury's presence despite the judge's order to the contrary. The evidence at trial showed that Novak was seen at the house on November 22, 1999, when he was arrested for municipal housing code violations, he was the last person seen at the house prior to the four deputies' entering it, and that he had sent a fax to the sheriff's department on October 26, 1999, which included a letter acknowledging the eviction notice and a handbill purporting to invite the bearer to the execution of a harmless and unarmed citizen by the Cuyahoga County Sheriff. Two of the deputies who entered the house testified each believed the device on the stairway was dangerous, so they evacuated the area and called in a bomb expert to investigate and defuse it. The State's bomb expert testified that, upon investigation, he was able to determine the device was not explosive because it was not connected to an ignition source. At the close of the State's case, Novak requested a one-day continuance because a number of his witnesses, the judges and 3It appears that he was removed to the hallway and the courtroom door remained open so he could follow the proceedings and was, to some extent, prevented from disrupting them. -6- county officials, were not present. The judge ruled that, based upon the summary Novak had submitted, those witnesses had no relevant testimony and he denied a continuance, stating that such a continuance was unreasonable because there was no showing that any of the listed witnesses would aid his defense, that Novak had ample notice of the trial date, and the failure to have witnesses available was inexcusable. When the trial resumed, Novak attempted to present two witnesses, but the judge refused to allow them to testify. The first witness, Linda Shoulders, an employee of the Cuyahoga County Clerk of Court, had been a witness at the suppression hearing and there testified she had typed the writ of possession that authorized Novak's removal from the West 11th Street property. She was dismissed when Novak was unable to establish the relevance of her testimony through a proffer. Novak then sought to call Ann Green, a Cuyahoga County Sheriff's Deputy familiar with the foreclosure and eviction proceedings, but the judge also ruled that her testimony was irrelevant, again refused Novak's request for a continuance, and ordered the parties to go forward with closing arguments. The jury found Novak guilty on all four counts and he was sentenced to four years in prison on each count, to be served concurrently. He was not advised of any discretionary post release controls and they are not part of his sentence.4 Novak's first assignment of error states: 4Woods v. Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103. -7- I. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT-APPELLANT TO PRESENT A CASE IN CHIEF. Novak argues that he should have been granted a one-day continuance to allow him to obtain defense witnesses and permitted to present the testimony of witnesses who were present. The decision to grant a continuance is discretionary and we will not overrule the denial of a continuance absent an abuse of discretion.5The decision is based on the particular circumstances of each case, and the reasons submitted to the judge6 who may deny such a request if a defendant has not shown it is necessary to serve the ends of justice.7 Here the judge explained his reasons for denying the request, Novak did not explain why the witnesses were not present and the record reflects that the day before, Novak's lawyer had stated he would have witnesses available. Moreover, the witnesses he sought to testify did not appear to have any evidence or personal knowledge relevant to his criminal charges -- instead, the witnesses appeared to have been persons connected to the foreclosure and eviction action. The transcript reveals that Ms. Shoulders' proffered testimony was related only to Novak's attempt to re-assert the suppression issue at trial and not relevant to the issues at trial. Novak 5State v. Unger (1981), 67 Ohio St.2d 65, 21 O.O.3d 41, 423 N.E.2d 1078, syllabus. 6Id. at 67-68, 423 N.E.2d at 1080. 7R.C. 2945.02. -8- proffered Ms. Green as a character witness, claiming she could testify about his communications with the sheriff's department and support his claims that he used nonviolent means to achieve his ends, and would not have resorted to constructing a fake bomb to thwart the eviction. The judge refused to allow her to testify, stating her testimony is not material to the issues in this case. The record and argument does not support an abuse of discretion in excluding Ms. Shoulders or Ms. Green, or in denying Novak a continuance to obtain other witnesses. It does not appear that Shoulders had any testimony other than that relevant to the suppression motion and, although the summary refusal to allow Green's testimony is troublesome, Novak has not explained in this appeal how she or any other witness would have aided his defense, and did not proffer any excluded testimony in his post-trial motions. Novak's actions before and during trial reveal his desire to disrupt his prosecution with irrelevant claims and evidence, and the judge sought to limit such presentations. The first assignment of error is overruled. The second assignment states: II. THE TRIAL COURT ERRED IN NOT RULING ON THE PENDING MOTION TO SUPPRESS. Although Novak's consolidated motions to suppress evidence were denied by Judge Boyle on March 3, 2000, he filed a supplemental motion to suppress, in which he claimed to have documents which appear to contradict information provided by State witnesses at the original hearing on June 12, 2000. The documents, however, were not provided to the judge nor were their -9- contents summarized, and Judge McMonagle denied this motion on June 21, 2000, stating that the issue had already been resolved. It is unclear whether Novak believes that this ruling indicates a failure to rule on the supplemental motion, or if he is referring to some other, unidentified motion but, in any event, we find no error in denying the motions to suppress. Through these motions Novak attempted to exclude the deputies' testimony concerning their entry into the house on November 23, 1999, and their subsequent discovery of the apparent bomb on the basis that the deputies unlawfully entered the home. He contended that the State failed to prove that the writ of possession was issued to the proper owner, and that Adam Waldbaum, who accompanied the deputies to the address and instructed them to enter the property, had any authority to enter the house. Such arguments, however, are of no help in a suppression motion. Regardless of whether the deputies impaired the rights of some unidentified true owner of the property when they entered on Waldbaum's instruction, Novak has no standing to assert those rights. There is no dispute that on November 23, 1999, the property at 2299 West 11th Street had been sold at a foreclosure sale, and a sheriff's deed had issued to someone other than Novak. For our purposes it makes no difference who the owner was -- it matters only that Novak no longer had any legitimate expectation of privacy in the house, and -10- had no standing to assert rights against unlawful entry.8 There was no error in denying the first motion to suppress. Moreover, there is no indication that the supplemental motion to suppress could have somehow shown that Novak retained some privacy interest in the property and he failed to proffer the documents he referred to or explain their import. Based upon the lack of any new information, the judge correctly denied the second motion. The second assignment of error is overruled. Th e third assignment states: III. THE DENIAL OF DEFENDANT-APPELLANT'S MOTIONS FOR APPOINTMENT OF EXPERTS WITHOUT AN ORAL HEARING WAS ERROR. Novak submitted a motion requesting the appointment of an expert to testify on eviction procedures and, although we are unable to find his motion for the appointment of a bomb expert, Judge Mahon denied him experts on both subjects. Novak claims he was entitled to appointment of these experts pursuant to Ake v. Oklahoma9but, although a defendant is entitled to the appointment of experts at state expense when necessary to aid his defense, such appointments are not mandated in all circumstances. To succeed, a defendant must make a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in 8State v. Williams (1995), 73 Ohio St.3d 153, 166, 652 N.E.2d 721, 732-33. 9(1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53. -11- an unfair trial. 10 We review a refusal to appoint a defense expert for abuse of discretion.11 Because the eviction procedure related to Novak's motion to suppress, an expert was unnecessary once that motion was properly denied. Moreover, Novak has failed to present any substantial evidence or argument that the eviction procedure was unlawful in the first place, much less that the illegality affected his right to challenge the deputies' entry into the house. There is no evidence that an eviction expert would have aided Novak's defense. Part of Novak's defense was a claim that the device at issue was a haphazard conglomeration of parts that no one could mistake for a bomb, and his cross-examination of the State's bomb expert focused on the fact that it took only a few minutes of inspection to discover that the device was inoperable. We find, however, that a bomb expert would not have aided Novak's defense because the question was not whether an expert would have recognized the device as a fake, but whether an ordinary citizen (or deputy sheriff) would have immediately realized that the device was not a bomb. This was not an issue for expert testimony, but one for the jury to decide upon the evidence presented; the testimony of the two deputies and the photographs and reproduction of the device itself. Therefore, had Novak even made a timely motion for a bomb expert, 10State v. Mason (1998), 82 Ohio St.3d 144, 150, 694 N.E.2d 932, 944. 11Id. -12- the judge was within his discretion in denying the motion. The third assignment of error is overruled. Novak's fourth assignment states: IV. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT-APPELLANT'S RULE 29(A) MOTIONS, MOTION FOR JUDGMENT OF ACQUITTAL AND JUDGMENT [sic] FOR A NEW TRIAL. Novak contends both that the evidence was insufficient to support the charges against him and that the intimidation statute, R.C. 2921.03, is intended to protect witnesses, and not the deputies serving the eviction notice here. We reject both contentions. We review a sufficiency claim de novo, to determine whether any reasonable jury could have found a defendant guilty on the evidence presented.12 Novak claims that the State's own bomb expert testified that he was able to tell the device was inoperable after a brief inspection, and also complains that only two of the four deputies testified. The testimony and photographic evidence of the device was sufficient to show that a reasonable deputy would have been concerned that it was a bomb, especially in light of the black and yellow sign stating danger and explosive affixed to the propane tank. Furthermore, that only two of the four deputies testified does not render any of the convictions invalid, because the evidence showed that all four were present, and the testimony of two showed the reasonable reaction of all four. The evidence adequately showed a threat of harm to all four deputies, and 12State v. Stallings (2000), 89 Ohio St.3d 280, 289, 731 N.E.2d 159, 171. -13- created an inference that Novak constructed the device in a knowing attempt to hinder the eviction process. We do not find that R.C. 2921.03 is limited to only the protection of witnesses in pending proceedings. The statute states, in relevant part, that no person shall attempt to influence, intimidate, or hinder a public servant, party official, or witness in the discharge of the person's duty. The deputies were public servants performing their duties, and R.C. 2921.03 surely is intended to protect them. Novak also argues that he should have been granted a new trial or his convictions reduced to the lesser included offense of obstructing official business, R.C. 2921.31. In arguing for a new trial he claims, without citing the record, that the prosecutor in closing argument made improper comments on his failure to testify. The prosecutor denies making such comments, and we are unable to find any in the record. The prosecutor did, however, comment on Novak's cross- examination of the State's bomb expert, claiming that his questions revealed Novak's intimate knowledge about explosive devices and, therefore, his ability to construct the device in this case. It was clearly improper to equate Novak's questioning of a witness with testimony, but we do not find the error outcome determinative and no relief is warranted.13 13State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. -14- Finally, although a judge has authority to reduce a conviction to a lesser included offense under some circumstances, such discretion exists only when the weight or sufficiency of the evidence does not support the conviction obtained.14 As already noted, the evidence is sufficient to sustain the jury's verdict here and the judge had no authority to reduce those convictions. The fourth assignment of error is overruled. Judgment affirmed. 14Crim.R. 33(A)(4); Stateex rel. Corrigan v. White (1976), 46 Ohio St.2d 29, 75 O.O.2d 96, 346 N.E.2d 289. -15- It is ordered that the appellee recover from appellant costs herein taxed. This court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. Defendant's convictions having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JUDGE ANNE L. KILBANE PATRICIA ANN BLACKMON, P.J., and TERRENCE O'DONNELL, 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.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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .