State v. Warren

2013 Ohio 3542

Opinion

[Cite as State v. Warren, 2013-Ohio-3542.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : : Case No. 12CA3324 v. : : DECISION AND WAYNE WARREN, : JUDGMENT ENTRY : Defendant-Appellant. : Released: 08/14/2013

APPEARANCES: Aaron M. McHenry, Benson, McHenry & Sesser, LLC, Chillicothe, Ohio, for Appellant. Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Assistant Prosecuting Attorney, for Appellee.

Hoover, J.

{¶1} This is an appeal of a conviction from the Common Pleas Court of Ross

County. On March 8, 2012 a jury found appellant Wayne Warren guilty of Aggravated

Robbery, a felony of the first degree, in violation of R.C. 2911.01. Appellant, Wayne

Warren, sets forth three assignments of error:

I. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW

TO CONVICT WAYNE WARREN OF AGGRAVATED ROBBERY;

OR IN THE ALTERNATIVE, THE CONVICTION WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

II. WAYNE WARREND [sic] WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH Ross App. No. 12CA3324 2

AMENDMENT TO THE CONSTITUTION AND COMPARABLE

PROVISIONS OF OHIO’S CONSTITUTION.

III. WAYNE WARREN WAS DENIED DUE PROCESS UNDER THE

LAW BECAUSE HE WAS DENIED AN ADEQUATE

PRESERVATION OF THE TRIAL COURT RECORD.

I.

STATEMENT OF FACTS

{¶ 2} On June 6, 2011 appellant Wayne Warren and his neighbor Jeremy Waters,

borrowed a car from appellant’s girlfriend, Amanda Nicholson, to drive to Londonderry,

Ohio to pick up some money purportedly owed to Mr. Waters. Appellant and Mr. Waters

were unable to pick up any money in Londonderry. The two men then left Londonderry

and traveled to Chillicothe, Ohio.

{¶ 3} Mr. Waters testified that when they arrived in Chillicothe, appellant drove

to a bowling alley. Upon arrival at the bowling alley, appellant discovered that it was

closed. Appellant then drove to a Kmart and instructed Mr. Waters to remain in the

vehicle while he went inside the store. According to Mr. Waters, appellant stayed in the

store for approximately five minutes. Appellant returned to the vehicle and then drove to

another shopping mall down the street.

{¶4} Mr. Waters testified that appellant then pulled the vehicle in front of a

woman and told him to “duck.” The back of the car was parked towards the woman, with

Mr. Waters facing away from her. Next, Mr. Waters testified that he heard a woman

scream; but he did not see anything. Appellant reentered the vehicle; and they left the

area. Ross App. No. 12CA3324 3

{¶5} Carrie Mead testified that she had been shopping at Kroger with her

daughter, Tyessa Mead. Carrie Mead testified that after she put the groceries inside her

trunk, she proceeded to take the cart to the cart corral. At this time Tyessa Mead was

getting back into the car to charge her iPod.

{¶6} According to Carrie Mead, as she was taking the cart back, a car pulled up

beside her. A man stepped out behind her and said, “Could you do me a favor?” Ms.

Mead then turned around and observed the man holding a knife to her stomach. As she

backed away from the man, he tried to grab her purse. Ms. Mead tried to get her cell

phone from her purse as she began screaming for her daughter to lock the doors of the

car. When Tyessa Mead first heard her mother yelling, she got out of the car. Carrie

Mead quickly told Tyessa Mead to get back in the car and lock the doors.

{¶7} Once Carrie Mead began screaming, the man got back into his car and sped

away. Carrie Mead also got in her vehicle. Carried Mead and her daughter were able to

observe the license place number of the car that was leaving the scene. Tyessa Mead

typed the license plate number in a text message and sent it to herself in order to record it.

Carrie Mead then went back into Kroger and told an employee what had happened; and

an employee from Kroger called the police.

{¶8} Carrie Mead and Tyessa Mead went to the Chillicothe Police Department

where Sargent Tom Cunningham interviewed them. During the interview, Carrie Mead

described the man as wearing a light colored shirt and a ball cap. The Meads also gave

the license plate number to authorities. The license plate number was traced through the

Bureau of Motor Vehicles to Amanda Nicholson, appellant’s girlfriend. Ross App. No. 12CA3324 4

{¶9} The Vinton County Sheriff’s department received the information and sent

two deputies, Ethan Doerr and Pennie McCune, out to Ms. Nicholson’s house. Deputy

McCune testified that shortly after they arrived at Ms. Nicholson’s house, appellant

called Ms. Nicholson on her cell phone. Deputy McCune recognized the voice of

appellant from prior interactions; and Deputy McCune asked to speak with appellant

herself. Deputy McCune asked appellant his location. Appellant responded that he was

not far away. Deputy McClune asked him if he could come to Ms. Nicholson’s

residence; and he replied that he would. Appellant asked if he would be allowed to say

goodbye to his girlfriend before Deputy McCune arrested him.

{¶10} The deputies both testified that when appellant and Mr. Waters arrived,

appellant was driving the car. The deputies ordered the men out of the car and searched

them for weapons. The vehicle was towed and impounded. When Deputy Doerr was

completing the inventory, he discovered a black handled knife in the center console

underneath the parking brake lever.

{¶11} At trial, Carrie Mead was shown the knife found in the vehicle. She

testified that the knife appeared similar to the one that the man was holding during the

encounter in the parking lot.

{¶12} Appellant sets forth three assignments of error for review. First, he

contends that the evidence presented against him at trial was insufficient as a matter of

law to convict him of aggravated robbery. Next, he argues that he was denied effective

assistance of counsel in violation of the Sixth Amendment to the Constitution of the

United States. Finally, appellant claims that he was denied due process because of the Ross App. No. 12CA3324 5

trial court’s failure to provide the complete trial transcript. Appellee, State of Ohio asks

this court to overrule appellant’s assignments of error and affirm appellant’s conviction.

II.

FIRST ASSIGNMENT OF ERROR

{¶13} In his first assignment of error, appellant argues that there was insufficient

evidence that he committed the offense of Aggravated Robbery beyond a reasonable

doubt. In the alternative, appellant argues that even if sufficient evidence existed to

support a verdict, this Court should find the verdict to be against the manifest weight of

the evidence. Appellant contends that there was no positive identification of the offender

by the victim in this case. Appellant argues that Carrie Mead’s description of the

offender more closely matched that of Mr. Waters and not of him. In addition, appellant

states that the only evidence tending to suggest that he committed the crime was the

testimony of the only other suspect, Mr. Waters. According to appellant, the jury lost

their way; and their verdict was a miscarriage of justice.

Standard of Review

{¶14} The arguments concerning the “sufficiency” and the “manifest weight” of

the evidence are two distinct legal concepts. State v. Davis, 4th Dist. No. 12CA3336,

2013-Ohio-1504, ¶ 12; See State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541

(1997). “When reviewing the sufficiency of the evidence, our inquiry focuses primarily

upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably

could support a finding of guilt beyond a reasonable doubt. [Thompkins] at 386 (stating

that ‘sufficiency is a test of adequacy’).” Davis at ¶ 12, citing Thompkins and State v.

Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991). “The standard of review is Ross App. No. 12CA3324 6

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.” Id. citing Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jenks, 61 Ohio St.3d

at 273.

{¶15} Therefore, when we review a sufficiency of the evidence claim in a

criminal case, we review the evidence in a light most favorable to the prosecution. See

State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction

on a sufficiency of the evidence claim unless reasonable minds could not reach the

conclusion the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E .2d

226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E .2d 749 (2001).

{¶16} “Although a court of appeals may determine that a judgment of a trial

court is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” Thompkins at 387. When an appellate

court considers a claim that a conviction is against the manifest weight of the evidence,

the court must dutifully examine the entire record, weigh the evidence, and consider the

credibility of witnesses. The reviewing court must bear in mind, however, that credibility

generally is an issue for the trier of fact to resolve. E.g., State v. Issa, 93 Ohio St.3d 49,

67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St .2d 230, 39 O.O.2d 366, 227

N.E.2d 212 (1967), paragraph one of the syllabus; State v. Murphy, 4th Dist. No.

07CA2953, 2008–Ohio–1744, ¶ 31. Once the reviewing court finishes its examination,

the court may reverse the judgment of conviction only if it appears that the jury, when Ross App. No. 12CA3324 7

resolving the conflicts in evidence, “clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.”

Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

{¶17} If the prosecution presented substantial evidence upon which the trier of

fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of

the offense had been established, the judgment of conviction is not against the manifest

weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978),

syllabus. A reviewing court should find a conviction against the manifest weight of the

evidence only in the “exceptional case in which the evidence weighs heavily against the

conviction.” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175;

see also State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

Analysis

{¶18} Appellant was convicted of Aggravated Robbery, a violation of R.C.

2911.01. The elements of the offense are as follows:

(A) No person, in attempting or committing a theft offense, as defined in

section 2913.01 of the Revised Code, or in fleeing immediately after the

attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that

the offender possesses it, or use it;

(2) Have a dangerous ordnance on or about the offender's person or under

the offender's control; Ross App. No. 12CA3324 8

(3) Inflict, or attempt to inflict, serious physical harm on another.

Considering all the evidence, we weigh whether a trier of fact could conclude beyond a

reasonable doubt that appellant committed the offense of Aggravated Robbery.

{¶19} The victim in this case, Carrie Mead, was returning a shopping cart at the

corral when she turned to find a knife at her stomach and a man saying to her, “Can you

do me a favor?” A knife qualifies as a deadly weapon; and it was brandished in

accordance with R.C. 2911.01. See State v. Sims, 4th Dist. 10CA17, 2012-Ohio-238 ¶ 38

(demonstrating that a knife is considered a deadly weapon). Carrie Mead also testified

that the man was reaching and grabbing at her purse. This is evidence that the appellant

was using the knife to try to steal Carrie Mead’s purse.

{¶20} Next, we need to evaluate the evidence presented that tends to demonstrate

that appellant was the offender in this case. Carrie Mead and her daughter recorded the

license plate number of the car driven by the offender. The car was traced back to

Amanda Nicholson, the girlfriend of appellant, who testified that her neighbor Mr.

Waters and appellant borrowed the vehicle that day. However, it was established at trial

that Carrie Mead, just a few days after the incident of June 6, 2011, did not identify

appellant in a photo array. Carrie Mead did describe the offender as wearing a light

colored shirt and a ball cap. The photographs and testimony at trial established that both

Mr. Waters and appellant were wearing t-shirts and ball caps. Mr. Waters was wearing a

blue cut-off t-shirt with a white ball cap, while appellant was wearing a light grey t-shirt

with a red and black ball cap.

{¶21} Mr. Waters testified that he was a passenger in the vehicle with appellant

driving the entire day. He testified that he stayed in the car while they were at the Kroger Ross App. No. 12CA3324 9

parking lot. Appellant exited the vehicle and told him to “get down.” Mr. Waters then

heard a woman scream; and appellant got back into the car. Mr. Waters testified that

after leaving the Kroger parking lot, appellant apologized to him saying, “Sorry that I got

you in this mess.”

{¶22} After examination of the evidence and elements of aggravated robbery, the

verdict reached by the jury is supported by sufficient evidence. Viewing the evidence in

a light most favorable to the prosecution, a rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. We now turn to

examine whether the verdict is against the manifest weight of the evidence.

{¶23} Our standard of review requires us to find this to be an “exceptional case

in which the evidence weighs heavily against the conviction” in order to overturn

appellant’s conviction. Thompkins, 78 Ohio St.3d at 387. In light of the evidence

presented in this case, we cannot conclude that this is the “exceptional case in which the

evidence weighs heavily against the conviction.” Therefore appellant’s first assignment

of error is not well taken.

III.

SECOND ASSIGNMENT OF ERROR

{¶24} In his second assignment of error, appellant argues that he was denied the

effective assistance of counsel in violation of the Sixth Amendment to the Constitution of

the United States. Appellant sets forth two instances where his trial counsel was

ineffective. The first occurred on cross-examination of Deputy McCune when the deputy

revealed that appellant had an outstanding warrant on the day of June 6, 2011. Appellant

claims a second instance occurred when his counsel failed to mitigate his sentence. Ross App. No. 12CA3324 10

{¶25} Criminal defendants have a right to counsel, including a right to the

effective assistance from counsel. See McMann v. Richardson, 397 U.S. 759, 771, fn. 14,

90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-Ohio-

1366, ¶21. To establish constitutionally ineffective assistance of counsel, a defendant

must show (1) that his counsel’s performance was deficient and (2) that the deficient

performance prejudiced the defense and deprived him of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139,

694 N.E.2d 916 (1998).

{¶26} “In order to show deficient performance, the defendant must prove that

counsel’s performance fell below an objective level of reasonable representation. To

show prejudice, the defendant must show a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.” (Citations omitted.)

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure

to establish either element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,

2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze

both. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a

defendant’s failure to satisfy one of the elements “negates a court’s need to consider the

other.”).

{¶27} When considering whether trial counsel’s representation amounts to

deficient performance, “a court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Strickland at 689. Ross App. No. 12CA3324 11

Thus, “the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. “A properly licensed

attorney is presumed to execute his duties in an ethical and competent manner.” State v.

Taylor, 4th Dist. No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St.3d

98, 100, 17 OBR 219, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden

to show ineffectiveness by demonstrating that counsel’s errors were so serious that he or

she failed to function as the counsel guaranteed by the Sixth Amendment. See State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37

Ohio St.3d 153, 156, 524 N.E.2d 476 (1988).

{¶28} To establish prejudice, a defendant must demonstrate that a reasonable

probability exists that but for counsel’s errors, the result of the trial would have been

different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus (1989). Furthermore,

courts may not simply assume the existence of prejudice, but must require that prejudice

be affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-

1707, ¶ 22; State v. Tucker, 4th Dist. No. 01CA2592, 2002 WL 507529, *3 (Apr. 2,

2002); State v. Kuntz, 4th Dist. No. 1691, 1992 WL 42774, *2 (Feb. 26, 1992).

{¶29} First, appellant claims that his defense counsel should have prevented the

prosecutor from asking Deputy McCune a certain line of questioning. The relative

testimony is as follows, first on direct examination: Ross App. No. 12CA3324 12

[Prosecutor]: ONCE HE HAD GOTTEN ON THE PHONE AND YOU

WERE TALKING TO HIM, COULD YOU DESCRIBE WHAT YOU

HAD TALKED ABOUT?

[McCune]: I ASKED HIM WHERE HE WAS, HE WOULDN’T

TELL ME EXACTLY WHERE HE WAS, HE SAID HE WAS CLOSE;

NOT FAR AWAY. I ASKED HIM IF HE COULD COME TO THE

RESIDENCE, HE SAID THAT HE WOULD. I TOLD HIM THAT IT

WOULD BE IN HIS BEST INTEREST IF HE DID. HE ASKED IF HE

COULD SAY GOOD-BYE TO HIS GIRLFRIEND WHEN HE

ARRIVED, BEFORE I ARRESTED HIM.

[Prosecutor]: SO HE ASKED YOU IF YOU WOULD LET HIM SAY

GOOD-BYE TO HIS GIRLFRIEND BEFORE HE WAS ARRESTED?

[McCune]: YES.

[Prosecutor]: PRIOR TO HIM MAKING THAT STATEMENT TO

YOU, HAD YOU GIVEN HIM INDICATION TO HIM THAT HE

WOULD BE UNDER ARREST WHEN HE ARRIVED AT HIS

RESIDENCE?

[McCune]: NO, I DID NOT.

***

{¶30} On cross-examination, Deputy McCune gave the following

testimony:

[Counsel]: DEPUTY, I THINK YOU TESTIFIED THAT WHEN

YOU WERE SPEAKING WITH MR. WARREN ON THE PHONE, HE Ross App. No. 12CA3324 13

SEEMED TO KNOW HE WAS GOING TO BE ARRESTED, IS THAT

CORRECT?

[McCune]: YES, THAT’S THE WAY IT SOUNDED.

[Counsel]: WERE YOU AWARE IF HE HAD WARRANTS OUT OF

ANY OTHER COUNTIES?

[McCune]: NO, I WAS NOT.

[Counsel]: AT SOME POINT IN THE CRUISER, DID HE SAY

ANYTHING TO YOU ABOUT WARRANTS?

[McCune]: NOT THAT I RECALL.

[Counsel]: YOU DON’T RECALL HIM TELLING YOU HE KNEW

HE HAD WARRANTS FROM ANOTHER COUNTY?

[McCune:] NOT THAT I RECALL.

[Counsel]: DID YOU EVER RUN A CHECK FOR WARRANTS?

[McCune]: UM, JUST PRIOR TO CHILLICOTHE POLICE

DEPARTMENT ARRIVING. WE WENT AHEAD AND GOT THE

PAPERWORK AND STUFF READY FOR THEM AND THAT’S

WHEN I WAS AWARE THAT HE HAD OUTSTANDING

WARRANTS.

[Counsel]: SO HE DID IN FACT HAVE OTHER WARRANTS

FROM OTHER COUNTIES?

[McCune]: YES, HE DID? Ross App. No. 12CA3324 14

[Counsel]: IS IT IMPOSSIBLE THAT HE WOULDN’T HAVE

KNOWN THAT?

[McCune]: I CAN NOT SAY THAT.

{¶31} Appellant argues, while his statement to Deputy McCune may have been

admissible under Evidence Rule 801(D)(2), evidence of the warrant was not admissible

and was highly prejudicial. In order to explain the statement, appellant claims that he

was compelled to disclose the prejudicial information regarding his outstanding arrest

warrant. Appellant assigns error for ineffective assistance of counsel for failure to use

proper means of excluding the testimony either by pretrial motion pursuant to Crim.R.

12(c) or by objecting to the prosecutor’s line of questioning.

{¶32} In his appellate brief, appellant admits that his statement to Deputy

McCune may be admissible under Evid.R. 802(B)(2) as an admission by a party. Since he

does not claim the statement to be inadmissible under the hearsay rule, we will not

address it as such. Appellant instead claims his statement is inadmissible under Evid.R.

404(B) and 403(A). Evid.R. 404(B) states: “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith.” Evid.R. 403(A) states: “Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” First it is important to note, that the

prosecution did not seek to introduce the evidence regarding the outstanding arrest

warrants of the appellant. It was appellant’s trial counsel that opened the door and asked

Deputy McCune questions that revealed the existence of the warrants. Ross App. No. 12CA3324 15

{¶33} The Third District ruled on a situation similar to this case. In State v.

Fairley, 3rd Dist. No. 05-03-41, 2004-Ohio-2616 ¶ 30, at trial, a jury had heard on three

separate occasions references to the defendant’s outstanding warrants. The Third District

ruled that the statements “did not detail any specific prior criminal activity which would

be prohibited under Evid.R. 404(B).” Id at ¶ 31. Further, the court explained the

statements “did not attempt to show an affinity for crime”; and one disclosure “was made

in response to the questions posed by [defense counsel].”

{¶34} In this case, appellant’s trial counsel elicited the outstanding warrant

testimony; and nothing was revealed about the specific crime charged. There was also no

attempt to show appellant acted in conformity with criminal behavior by introducing the

evidence of an outstanding warrant. Therefore, we do not find that the testimony would

have been prohibited under Evid.R. 404(B). Furthermore, the testimony does not

demonstrate substantial prejudice to appellant to warrant exclusion of the evidence under

Evid.R. 403(A).

{¶35} Looking at the context of this testimony it is clear that appellant’s trial

counsel was using the testimony regarding the warrant as trial strategy. After Deputy

McCune had testified on direct examination that appellant asked her if he could talk to

his girlfriend before being arrested, defense counsel attempted to use the warrant

testimony to demonstrate appellant may have had other reasons to believe he might be

arrested. In proving ineffective assistance of counsel, appellant must overcome the

presumption that counsel’s actions might be trial strategy. We do not find appellant has

effectively demonstrated an ineffective assistance of counsel claim with respect to the

cross-examination of Deputy McCune. Ross App. No. 12CA3324 16

{¶36} Appellant also argues that his trial counsel’s failure to introduce mitigating

circumstances during the sentencing hearing constitutes ineffective assistance of counsel.

Appellant contends that but for this error, he would have received a lesser sentence.

Appellant, being convicted of a felony of the first degree, faced a sentence of three to

eleven years in prison. R.C. 2929.14(A)(1). At the sentencing hearing, Carrie Mead

gave a victim impact statement. Afterwards counsel for appellant stated:

I think the court is well aware of the facts of the case. We don’t believe

that a ten year sentence, the maximum sentence, would be appropriate

here. My client of course, still maintains his innocence. We will be filing

a notice of appeal on that. We would ask the court to come in

considerably under the maximum sentence.

Appellant declined to add anything further when asked by the Judge. Appellant was

sentenced to eight (8) years in prison.

{¶37} Appellee contends that appellant has failed to establish with reasonable

probability that a lower sentence would have been the result if not for defense counsel’s

failures. We agree. Appellant asserts that his trial counsel should have brought to the

trial court’s attention that he turned himself in to authorities, cooperated with authorities,

and caused no physical harm to person or property, as mitigating factors under R.C.

2929.12(C)(3) & (4). Appellant has not demonstrated the reasonable probability of a

lesser sentence if his trial counsel would have pointed out the mitigating factors.

Appellant received eight years, where the maximum sentence was eleven years.

Therefore, we find that appellant has not effectively proven an ineffective assistance of

counsel claim. Appellant’s second assignment of error is not well taken. Ross App. No. 12CA3324 17

IV.

THIRD ASSIGNMENT OF ERROR

{¶38} In his final assignment of error, appellant contends that he was denied due

process under the law because he was denied an adequate preservation of the trial court

record. He submits that he has a right to have the proceedings recorded pursuant to

Crim.R. 22; he argues that right was violated because the trial court transcript is missing

parts of the trial. Specifically, the trial transcript is missing cross-examination of Sargent

Tom Cunningham and the entire closing arguments.

{¶39} “The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing error

by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1980). When portions of the transcript necessary for

resolution of assigned errors are omitted from the record, the reviewing court has nothing

to pass upon; and thus, as to those assigned errors, the court has no choice but to presume

the validity of the lower court's proceedings, and affirm. Id.

{¶40} The Ohio Rules of Appellate Procedure provide a remedy that preserves

the right to full review in situations where the record is incomplete. An appellant may

prepare a statement of the evidence or proceedings from the appellant’s own recollection

pursuant to App.R. 9(C), or an agreed statement of the record pursuant to App.R. 9(D).

Appellant states that he attempted to rectify the transcript, but the recording is

unavailable; and there is no sufficient means to do so. “Unfortunately, recording

equipment occasionally malfunctions. The failure of recording equipment in the trial Ross App. No. 12CA3324 18

court does not result in prejudice per se.” State v. Ward, 4th Dist. No. 03CA2, 2003-

Ohio-5650 ¶ 28 citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d 1355 (1978)

syllabus. Accordingly, the appellant must demonstrate prejudice as a result of the faulty

equipment and resulting inadequate record.

{¶41} Appellant argues that Sargent Cunningham was the lead investigator in the

case and one of the state’s most important witnesses. He also asserts that as a result of

the inadequate transcript, he cannot show whether his counsel was ineffective during the

missing testimony or closing arguments. An appellant might be prejudiced where

another assignment of error is incapable of review because of the inadequate record. See

State v. Beltowski, 11th Dist. No. 2006-L-032, 2007-Ohio-3372 ¶ 29.

{¶42} In this case, however, appellant merely asserts that this Court is unable to

review the missing transcript to see if his trial counsel may have committed errors.

Appellant does not allege any specific instances of error or misconduct during Sargent

Cunningham’s testimony or during closing arguments. Therefore the second assignment

of error, ineffective assistance of counsel, is not hindered upon review by the transcript

omissions.

{¶43} Appellant’s first assignment of error dealt with the sufficiency and

manifest weight of the evidence. As stated previously, we find that the evidence is

sufficient enough for a reasonable fact finder to find appellant guilty of aggravated

robbery beyond a reasonable doubt. We also determined the verdict is not against the

manifest weight of the evidence. Therefore, the omitted testimony alone does not show Ross App. No. 12CA3324 19

the appellant was prejudiced. We find appellant’s third assignment of error is not well

taken.

V.

CONCLUSION

{¶44} After reviewing the record and the evidence in this case, we overrule all

appellant’s assignments of error. The jury conviction finding appellant guilty of

Aggravated Robbery is therefore affirmed.

JUDGMENT AFFIRMED. Ross App. No. 12CA3324 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Ross County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Harsha, J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

By: Marie Hoover, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.