DocketNumber: No. E-06-075.
Citation Numbers: 2008 Ohio 1862
Judges: SKOW, J.
Filed Date: 4/18/2008
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} The convictions resulted from two separate incidents. First, on November 26, 2005, appellant went to the home of Krystal Scott (appellant's ex-girlfriend; no relation), *Page 2 banged on the windows and doors, and then entered her home without permission. Appellant and his girlfriend began to argue; she managed to momentarily lock him out of the house; he kicked in the door; as the girlfriend attempted to dial 911, once from her home phone and once from her cell phone, appellant took the phones away from her and threw them. Ms. Scott testified that they were not cohabitating and that he struck her several times.
{¶ 3} The second incident occurred on December 7, 2005. Frederick Williams, an acquaintance of appellant, testified that he had loaned appellant a Dodge Intrepid for several hours. Appellant instead kept the vehicle for three days. Williams, driving a Cadillac, went to a pharmacy and saw the Intrepid in the parking lot. Williams left his Cadillac running, and leaned in through the Intrepid's open window and removed the keys from the ignition. An argument between appellant and Williams ensued, with Williams insisting that appellant return the vehicle and appellant insisting that he had "rented" the vehicle from Williams for the three days. During the argument, appellant broke the headlights in Williams' car; Williams entered a pharmacy to call police; when Williams exited the pharmacy, he saw appellant driving away in the Cadillac. Police found the Cadillac the next day, abandoned on the side of a road. Appellant was charged with theft of the Cadillac.
{¶ 4} The trial court found appellant guilty for burglary, disrupting public service, and theft. He was sentenced to five years incarceration for burglary, a felony of the second degree; 15 months incarceration for disrupting public service, a felony of the *Page 3 fourth degree; and 12 months incarceration for theft, a felony of the fourth degree. The sentences for burglary and disrupting public service were ordered to run concurrently to each other but consecutively to the sentence for theft, for a total of six years incarceration.
{¶ 5} From that judgment, appellant assigns two errors for review:
{¶ 6} "I. THE TRIAL COURT ERRED WHEN IT DID NOT OBTAIN A VALID WAIVER OF RIGHT TO TRIAL BY JURY FROM DEFENDANT-APPELLANT IN ACCORDANCE WITH R.C.
{¶ 7} "II. THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO TRIAL COUNSEL'S HANDLING OF APPELLANT'S BENCH TRIAL."
{¶ 8} We find no merit in appellant's first assignment of error, in which he argues that appellant did not sign his written jury waiver in "open court" as required by R.C.
{¶ 9} Appellant's trial was conducted on October 18 and 19, 2006. Appellant argues in his brief that "examination of the trial transcript indicates that * * * no mention was ever made of the jury trial waiver in open court let alone the written waiver * * *." The record, however, contains a transcript from a pre-trial hearing on October 17, 2006, at which appellant signed the written jury waiver in the presence of his counsel and after the trial court's colloquy, ascertaining whether appellant understood the waiver. Having reviewed this transcript and the written waiver duly filed with the record, we find the trial court complied with the requirements of R.C.
{¶ 10} Next, appellant claims his trial counsel was ineffective so as to deprive him of the
{¶ 11} First, we dispose of appellant's contentions that his counsel was ineffective for stipulating to the admissibility of a crime laboratory report and the admissibility of a pipe fashioned for smoking crack cocaine. Appellant had been indicted and tried for possession of crack cocaine, a felony of the fifth degree, but the trial court acquitted him of this charge. Therefore, appellant suffered no prejudice from the stipulations.
{¶ 12} Appellant also contends that his counsel should have challenged, instead of stipulating to, the admissibility of a photo array used for identification by the theft victim; that his counsel should not have questioned appellant during his testimony regarding felony convictions greater than ten years old; and that his counsel never elicited testimony regarding the proof of ownership for the vehicle he was accused of stealing.
{¶ 13} With respect to appellant's trial counsel's stipulations to the photo array, a stipulation constitutes evidence. A stipulation "`is, in truth, a substitute for evidence, in that it does away with the need for evidence.' 9 Wigmore, Evidence (Chadbourn Rev.1981) 821, Section 2588."State v. Turner,
{¶ 14} Unlike cases where a photo array is suggestive and the circumstances render the identification questionable, see, e.g.,State v. Conkright, 6th Dist. No. L-06-1107,
{¶ 15} The same reasoning applies to counsel's decision to refrain from questioning Williams regarding his ownership of the Cadillac. Williams testified in no uncertain terms that the Cadillac belonged to him; not requesting evidence of title was a legitimate trial strategy to avoid unduly repetitive testimony from an incriminating witness. Although their respective renditions of events differ, appellantadmitted that the Cadillac belonged to Williams and he alternatively said that Williams did and did not demand the Cadillac's return. The performance of trial counsel does not fall below "an objective standard of reasonable representation" for failing to "raise meritless issues or even all arguable meritorious issues." State v. Taylor (1997),
{¶ 16} Counsel was also not ineffective for questioning appellant about his prior criminal record. At the very beginning of appellant's direct testimony, counsel asked him in general terms about his prior criminal record. Appellant answered that he had been incarcerated in 1992 for "drug trafficking," but that he had no convictions since then. Again, this question was a reasonable tactical decision to show honesty regarding appellant's past and to show that appellant was not a recidivist.
{¶ 17} In sum, appellant has not shown that but for these tactical decisions of his trial counsel, a different result would have occurred in the case. State v. Bradley, supra. The trial record demonstrates that his counsel's representation was not deficient, and his second assignment of error is not well-taken.
{¶ 18} For the foregoing reasons, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant *Page 8 to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Erie County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J., Mark L. Pietrykowski, P.J., William J. Skow, J., concur. *Page 1