[Cite as State v. Cross,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25487

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE RANDY JAMES CROSS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 10 04 0989

DECISION AND JOURNAL ENTRY

Dated: June 30, 2011

MOORE, Judge.

{¶1} Appellant, Randy James Cross, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

I.

{¶2} Randy James Cross was arrested on April 7, 2010, based on an incident that

occurred at 738 Hazel Street. As a result of the incident, on April 12, 2010, Cross was indicted

on one count of domestic violence in violation of R.C. 2919.25(A), a felony of the fourth degree,

one count of aggravated menacing in violation of R.C. 2903.21, a misdemeanor of the first

degree, and one count of domestic violence in violation of R.C. 2919.25(C), a misdemeanor of

the second degree. On June 14, 2010, a supplemental indictment was filed and Cross was

charged with one count of domestic violence in violation of R.C. 2919.25(A)/(B), a felony of the

fifth degree, and one count of violating a protection order in violation of R.C. 2919.27, a

misdemeanor of the first degree. 2

{¶3} Cross entered a plea of not guilty on May 5, 2010, and the matter proceeded to a

jury trial on June 16, 2010. On June 18, 2010, the jury found Cross guilty of all three counts of

domestic violence and guilty of violating a protection order. The trial court granted his Crim.R.

29 motion as to the aggravated menacing charge. On June 30, 2010, Cross was sentenced to a

total of six months in prison.

{¶4} Cross timely filed a notice of appeal. He raises five assignments of error for our

review. We have rearranged the assignments of error to facilitate our review.

II.

ASSIGNMENT OF ERROR IV

“THE TRIAL COURT ERRED IN DENYING THE CRIMINAL RULE 29 MOTION FOR ACQUITTAL.”

{¶5} In his fourth assignment of error, Cross contends that the trial court erred in

denying his Crim.R. 29 motion for acquittal. We do not agree.

{¶6} Crim.R. 29(A) provides that a trial court “shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses.”

When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production. To determine whether the evidence in

a criminal case was sufficient to sustain a conviction, an appellate court must view that evidence

in a light most favorable to the prosecution:

“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 crime proven beyond a reasonable doubt.” State v. Jenks (1991),

, paragraph two of the syllabus. 3

{¶7} In State v. Brewer, “[t]he Ohio Supreme Court emphasized that the interest in the

administration of justice dictates that the appellate court review the issue of sufficiency in

consideration of all evidence presented by the state in its case in chief, whether such evidence

was properly admitted or not.” State v. Freitag,

,

, at ¶9,

citing State v. Brewer,

,

, at ¶19.

Domestic Violence

{¶8} Cross was convicted of domestic violence in violation of R.C.

2919.25(A)/(B)/(C), which provides:

“(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.

“(B) No person shall recklessly cause serious physical harm to a family or household member.

“(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.”

{¶9} Cross stipulated that, at the time of the alleged violation, he knew that Williams

was pregnant and that he and Williams had been living together as family or household

members. In light of the stipulation, he could not challenge those elements.

{¶10} A neighbor, Brandy Gibbs, testified that on April 7, 2010, she witnessed a verbal

and physical altercation at around 12:45 a.m. between the neighbors that resided at 738 Hazel

Street. Gibbs was sitting on her front porch with friends when she heard a female across the

street yelling “stop hitting me” and things of that nature. She saw a man hitting the woman, and

the woman trying to get away from him. Specifically, she saw the man hitting the woman in the

face and head area. The woman then ran down the street to another neighbor’s home.

{¶11} The woman was using the phone on the front porch of the neighbor’s house when

the man walked down to the porch as well. He told the woman to come off of the porch, and 4

when she did so, he grabbed her by the arm and dragged her back down the street. When they

returned to 738 Hazel Street, the woman tried to walk up the steps to the residence, and the man

grabbed her by her hair. She then tried to walk down the steps, and the man pulled her by the

hair, and dragged her up the steps into the house.

{¶12} Once inside of the house, the front door was left open, so Gibbs could hear yelling

inside of the house. The woman ran back out of the house again, and again the man pulled her

back into the house by her hair. Gibbs heard more yelling inside of the house, and the woman

came back outside and sat on the porch. The man came back outside and was “beating her up”

and “hitting her everywhere” all while the female was “just sitting there getting beat up.”

{¶13} Gibbs further testified that at one point she witnessed two black men walking

down the street. She recognized them from the neighborhood, but did not know them personally.

The men asked her if they should help the woman. Gibbs responded that she wouldn’t help them

because the woman had run down to the other porch and had the opportunity to get help if she

had wanted it. The men decided to go across the street and ask the man on the porch to borrow a

lighter. The man began yelling at the two men and telling them to get away from his yard. The

man showed them he had a knife and at one point chased the men down the street with the knife.

Eventually the man stopped chasing them and returned to the house. He and the woman were

walking back into the house and he was hitting her again.

{¶14} Gibbs testified that the man was hitting the woman “everywhere.” She further

testified that the man was wearing shorts, and that he had taken off his shirt when he began

chasing the two men. Gibbs further testified that the woman was white and that she believed that

the woman was wearing a hoodie and pants such that her flesh was covered by the sleeves and

the pants. The man and the woman were inside of the residence when the police arrived. She 5

saw the police knocking on the door and walking around the perimeter of the house. The man

was shining a flashlight out of the windows at the police. Eventually, someone opened the door

and the police apprehended a man. Gibbs further testified that she had not seen any other people

enter or exit the house that night.

{¶15} Wayne Andrews, the sergeant assigned to communications with the Akron Police

Department, testified regarding a 911 call on April 7, 2010, concerning 738 Hazel Street. In the

call, a woman reported a domestic dispute between a man and his girlfriend at the address. The

woman identified herself only as a “concerned neighbor.” She mentioned that the girlfriend

looked pregnant and that both the man and the woman were white. She further stated that it

looked like the woman was trying to leave and the man would not let her. In addition, it looked

like the man was shoving the woman around.

{¶16} Michael Koubek, a patrolman with the Akron Police Department, responded to a

dispatch call on April 7, 2010, regarding a domestic fight at 738 Hazel Street. He and his

partner, Officer Christopher Lepa, arrived on scene within a couple minutes of the 911 call.

They had been told that a male and female were outside fighting, and that the male had dragged

the female back into the house. After checking out the area, the officers knocked on the door to

the residence. A man, later identified as Cross, answered the door shirtless and said, “No, thank

you,” and walked back into the house. Cross then turned off all of the lights in the house. The

officers proceeded to knock on the door five to six times. They also began shining their

flashlights into the house to see if they could see him, and Cross began shining a flashlight back

at them.

{¶17} Officer Koubek spoke with the neighbor across the street, Gibbs, and learned that

weapons were involved. At that point, the officers called for another unit as backup. Once 6

additional officers arrived, they advised Cross that they were going to have to kick in the door if

someone did not answer. A female subsequently came to the door and let the officers in. The

officers placed Cross in handcuffs. Another officer, Sergeant Boal, took the female outside to

get her statement. Officer Koubek testified that Cross appeared to be intoxicated because he had

slurred speech, bloodshot eyes, and smelled like alcohol. Officer Koubek further testified that

the officers found a large knife upstairs on the landing of the steps.

{¶18} Brian J. Curtin, a patrol officer with the Akron Police Department, testified that

on April 7, 2010, he responded to a call for a backup unit at 738 Hazel Street. When he arrived,

the officers were trying to make contact at the front door. Officer Curtin and his partner set up a

perimeter around the house. He observed someone flashing a flashlight out toward his face. The

officers eventually made entry into the house, and by the time Officer Curtin was inside the

suspect was already in handcuffs. He observed a large sheath sitting on the couch. Once the

suspect was taken out of the house, he did a protective sweep and found a large knife on the floor

of the hallway at the top of the stairs. It was near a window where someone had been shining a

flashlight.

{¶19} Christopher Lepa, a patrol officer with the Akron Police Department, testified that

on April 7, 2010, he, along with his partner, Officer Koubek, responded to a dispatch call for a

domestic fight at 738 Hazel Street. He and Officer Koubek knocked on the front door when they

arrived on the scene. When the suspect turned the lights off inside the house, Officer Lepa went

to the rear of the house to set up a perimeter while Officer Koubek stayed on the front porch. He

stood at the rear of the house when officers went to the front door. When the other officers made

entry, he ran to the front and entered the house. By the time he entered the house, Cross was

already in handcuffs. Officer Lepa testified that Cross had his shirt off and seemed very agitated 7

and intoxicated. There was a strong odor of alcohol and his eyes were glassy. He obtained a

shirt for Cross and walked him to the police cruiser.

{¶20} Williams testified that on April 7, 2010, she lived at 738 Hazel Street along with

her boyfriend, Cross. She testified that on the date in question she was pregnant with his child.

That evening, she arrived home from work and found Cross on the front porch with his uncle.

She testified that she was upset that the uncle was there because she believed he was a bad

influence. She and Cross began arguing on the front porch, and he began calling her names. At

one point, she went down to her neighbor’s house, Wanda Sams, to use her phone. Williams

testified that her cell phone was not working, but that she did have a functioning landline in her

home. Williams testified that Cross came down to the neighbor’s house and walked her home.

She denied that Cross struck her. The neighbor that testified did not directly identify Cross in

her testimony in court.

{¶21} While the evidence of domestic violence is circumstantial in that no one directly

identified Cross as the individual causing harm, and no one directly identified Williams as the

victim, circumstantial and direct evidence “possess the same probative value[.]” Jenks, 61 Ohio

St.3d at paragraph one of the syllabus. “Furthermore, if the State relies on circumstantial

evidence to prove any essential element of an offense, it is not necessary for ‘such evidence to be

irreconcilable with any reasonable theory of innocence in order to support a conviction.’”

(Internal quotations omitted.) State v. Tran, 9th Dist. No. 22911,

,

quoting State v. Daniels (June 3, 1998), 9th Dist. No. 18761, at *2.

{¶22} Gibbs, a disinterested bystander, heard the yelling at 738 Hazel Street, observed a

man striking a woman repeatedly, saw the victim leave the porch and walk to the neighbor’s

house and observed the man pursue her. He removed his shirt while chasing off two interlopers. 8

That same man pulled the victim into the home by her hair. Gibbs saw no one else enter or leave

the home. The police responded within minutes of the anonymous 911 call and found Cross in

the house without a shirt. The 911 caller also identified the victim as being a pregnant woman.

Cross was reported to have chased two men with a knife. When the police apprehended him,

they observed a sheath and a large knife near a window where a flashlight had been shone on

them. No other person was found in the home.

{¶23} After viewing the evidence in the light most favorable to the State, we conclude

that the trier of fact could reasonably find that the State met its burden of production and

presented sufficient evidence to establish Cross’ identity and to prove that Cross knowingly

caused or attempted to cause Williams harm. Jenks, 61 Ohio St.3d at paragraph two of the

syllabus. Accordingly, this portion of Cross’ fourth assignment of error is overruled.

Protection Order

{¶24} Cross was convicted of violating a protection order in violation of R.C. 2919.27,

which provides, in pertinent part:

“(A) No person shall recklessly violate the terms of any of the following:

“(1) A protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code;

“(2) A protection order issued pursuant to section 2151.34, 2903.213, or 2903.214 of the Revised Code[.]”

{¶25} Cross contends that there is insufficient evidence to sustain this conviction

because there was no testimony as to the terms of the protection order. We do not agree.

{¶26} A copy of the temporary protection order was admitted in the trial court. In

addition, Officer Lepa testified regarding the protection order. The officer averred that a

protection order was issued on April 8, 2010, which prohibited Cross from having any contact,

including phone contact, with Williams. He further averred that Cross had signed the document. 9

Additionally, Officer Lepa averred that he heard a recording of a jail call where Cross contacted

Williams after the protection order was issued. The recording was then played for the jury.

Finally, Williams testified that in one of the jail calls, Cross told her he was aware that there was

a temporary protection order, and admitted that the two had telephone contact.

{¶27} After viewing the evidence in the light most favorable to the State, we conclude

that the trier of fact could reasonably find that the State met its burden of production and

presented sufficient evidence that Cross violated a temporary protection order which prohibited

contact with Williams. Jenks, 61 Ohio St.3d at paragraph two of the syllabus. Accordingly, this

portion of Cross’ fourth assignment of error is overruled.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT’S JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS UNSUPPORTED BY THE EVIDENCE.”

{¶28} In his first assignment of error, Cross contends that the trial court’s judgment is

against the manifest weight of the evidence. We do not agree.

{¶29} When a defendant asserts that his conviction is against the manifest weight of the

evidence,

“an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986),

.

This discretionary power should be invoked only in extraordinary circumstances when the

evidence presented weighs heavily in favor of the defendant.

10

Domestic Violence

{¶30} In addition to the previously discussed testimony, Williams testified that on the

evening in question, she returned home from work and found Cross on the porch with his uncle.

She averred that she and Cross got into a verbal argument. The dispute was over the fact that she

asked the uncle to leave. She testified that she noticed Cross had a couple of drinks and that she

observed two beer cans.

{¶31} At some point, two men approached the house and were allegedly bothering

Williams and Cross, making comments, yelling, and throwing rocks at the house. Williams

contended that she went to the neighbor’s house to call Cross’ father to seek help with the two

men. She stated that she went to the neighbor’s house because her cell phone was not working,

and she reacted instinctively after seeing the neighbor outside. She admitted that she did have an

operational landline in the home.

{¶32} During her testimony, she asserted that she was not testifying on Cross’ behalf,

but was instead testifying “to tell the truth.” She averred that Cross walked down to the

neighbor’s house, took her by the arm and “gestured” her home. She denied that Cross ever hurt

her. When the police arrived, they examined her for injuries, and did not take any pictures. She

maintained that she had no injuries or marks.

{¶33} Wanda Sams, a neighbor residing at 730 Hazel Street, testified to the events in

question. On April 7, 2010, she was sitting outside on her porch. She testified that she is

familiar with Cross and Williams because they live near her. She testified that she did not notice

anything unusual. She further testified that Williams and Cross may have had a verbal

confrontation, but that it was not loud. Williams came to her house, stated that she had a

disagreement with Cross, used the phone and sat with her for 15 to 20 minutes. During the call, 11

Williams did not ask for help. At one point, Cross came over to the house and got Williams off

the porch and they walked back home together.

{¶34} Sams further testified that she never had drinks with Williams and Cross, and that

it would surprise her to learn that Williams testified differently. She said it would also surprise

her to learn that Williams referred to her as a friend, because she considers them only associates.

She maintained that she did not see two black men outside, nor did she witness Cross with a

knife. She stated that it would surprise her to learn that Williams testified that she came down to

the house to call for help because Williams was not in distress when she came to her porch. She

averred that Williams was wearing a hoodie, and possibly jeans, and that she could not see her

arms or legs.

{¶35} The evidence essentially created a question of credibility between Gibbs and the

anonymous 911 caller’s testimony and that of Williams and Sams. This Court has held that, “in

reaching its verdict, the jury is free to believe all, part, or none of the testimony of each witness.”

Prince v. Jordan, 9th Dist. No. 04CA008423,

, citing State v. Jackson

(1993),

. Furthermore, “[t]he weight to be given the evidence and the

credibility of the witness[es] are primarily for the trier of the facts”; in this case, the jury.

citing State v. Richey (1992),

. The jury had the opportunity to weigh the

testimony, and listen to the 911 tape, and “did not lose its way simply because it chose to believe

the State’s version of the events, which it had a right to do.’” State v. Feliciano, 9th Dist. No.

09CA009595,

, at ¶50, quoting, State v. Morten, 2d Dist. No. 23103, 2010-Ohio-

117, at ¶28.

{¶36} After reviewing the entire record, weighing the inferences and examining the

credibility of the witnesses, we cannot say that the jury clearly lost its way and created a manifest 12

miscarriage of justice. Otten,

. Accordingly, this portion of Cross’ first

assignment of error is overruled.

Protection Order

{¶37} Cross argues that his conviction for violating a protection order is against the

manifest weight of the evidence. He asserts the same arguments as his fourth assignment of

error, that there was no testimony as to the terms of the protection order and that there was no

testimony that Williams did not wish to speak with Cross. These arguments are without merit.

{¶38} A copy of the temporary protection order was admitted in the trial court. Officer

Lepa testified that a protection order was issued on April 8, 2010, which prohibited Cross from

having any contact, including phone contact, with Williams. He further averred that he had

heard a recording of a jail call where Cross contacted Williams after the protection order was

issued. The recording was then played for the jury. Finally, Williams testified that in one of the

jail calls, Cross told her he was aware that there was a temporary protection order, and admitted

that the two had telephone contact.

{¶39} Accordingly, upon review of the record, we do not conclude that “in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

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

. Cross’ first assignment of error is overruled.

ASSIGNMENT OF ERROR II

“THE TRIAL COURT ERRED IN VIOLATING SEPARATION OF POWERS.”

{¶40} In his second assignment of error, Cross contends that the trial court erred in

violating separation of powers. Because he failed to preserve any objection based on the 13

separation of powers doctrine, Cross has forfeited this issue and we do not reach the merits of his

contentions.

{¶41} “The failure to raise a constitutional issue at the trial level [forfeits] the right to

advance a constitutional argument at the appellate level.” State v. McGinnis, 9th Dist. No.

05CA0061-M,

, citing, e.g., State v. Awan (1986),

,

syllabus. While a defendant who forfeits such an argument still may argue plain error on appeal,

this court will not sua sponte undertake a plain-error analysis if a defendant fails to do so. See

State v. Hairston, 9th Dist. No. 05CA008768,

. Cross has not argued

plain error and we will not create a plain-error argument on his behalf.

{¶42} At trial, Cross argued that the court could not impose a mandatory prison term in

accordance with R.C. 2919.25(D)(5) due to an error in the statute. At the time, the section stated

that “the court shall impose a mandatory prison term on the offender pursuant to division (A)(6)

of this section[.]” The statute, however, had no section (A)(6). The State argued that the

applicable section was instead (D)(6). Cross’ counsel argued that the “offenses shall be strictly

construed against the state, and liberally construed in favor of the accused.” He further argued

that “[w]here there is ambiguity in criminal statutes, doubts must be resolved in favor of the

Defendant.” Counsel sought to have Count 4 dismissed from the indictment. The State argued

that the court has the power to correct the one-character typographical error in the statute. The

trial court denied the defense motion and said that it would “amend” the statute. Counsel made

no objections and made no reference to the doctrine of separation of powers. Because Cross

forfeited this issue on appeal and has not argued plain error, we must conclude that his second

assignment of error lacks merit. Cross’ second assignment of error is overruled. 14

ASSIGNMENT OF ERROR III

“THE TRIAL COURT ERRED IN DETERMINING THAT [CROSS] HAD TO SERVE A MANDATORY PRISON SENTENCE.”

{¶43} In his third assignment of error, Cross reiterates his argument from the second

assignment of error, i.e., that the trial court erred when it interpreted R.C. 2919.25(D)(5) to read

“(D)(6)” as opposed to “(A)(6).” We do not agree.

{¶44} At the time, R.C. 2919.25(D)(5) stated, in pertinent part: “if the offender knew

that the victim of the violation was pregnant at the time of the violation, a violation of division

(A) or (B) of this section is a felony of the fifth degree, and the court shall impose a mandatory

prison term on the offender pursuant to division (A)(6) of this section.” It is clear that the statute

does not contain a section (A)(6), thus, the reference is obviously in error. It was the clear intent

of the General Assembly to impose a mandatory prison term if the offender knew that the victim

was pregnant. In addition, the plain language of the statute states that it is a felony of the fifth

degree. The General Assembly delineated mandatory prison terms in section (D)(6) of the

statute. The only applicable provision of that section is (D)(6)(a), which states: “if the violation

of division (A) or (B) of this section is a felony of the fourth or fifth degree, except as otherwise

provided in division (A)(6)(b) or (c) of this section, the court shall impose a mandatory prison on

the offender of at least six months.” (Emphasis added.) Again, the General Assembly

erroneously referred to “this section” as “(A)(6)” where it was in fact a part of section “(D)(6).”

{¶45} Ordinarily, courts “must presume the legislature means what it says; we cannot

amend statutes to provide what we consider a more logical result.” State v. Virasayachack

(2000),

. However, as courts have noted, “when the terms of the

statute, as written, would never be applicable, and the simple substitution of one character would

result in a term that would always be applicable, we must conclude that the statute contains an 15

obviously typographical error, and we may correct the error and give effect to the obvious intent

of the statue.”

citing Brim v. Rice (1969),

. See also State v. Reineke

(1986),

; State v. O’Bryan,

,

.

{¶46} A court should only undertake the extraordinary task of correcting the express

language of a statute if both the error and the correct result are obvious. Here, it is clear that the

legislature intended that the statute refer to section (D)(6) as opposed to (A)(6). It is noted that

R.C. 2919.25(D)(5) has been amended effective September 17, 2010, to replace “(A)(6)” with

reference to “(D)(6).” While the choice of language by the trial judge was unfortunate, we do

not conclude that it was an attempt to “amend” the statute or overstep judicial powers. The trial

court in effect corrected a typographical error in the statute in order to give effect to the clear

legislative intent. In the case at hand, the trial court correctly imposed the mandatory prison

sentence articulated in section (D)(6). Accordingly, Cross’ third assignment of error is

overruled.

ASSIGNMENT OF ERROR V

“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADMITTING THE 911 ANONYMOUS CALL.”

{¶47} In his fifth assignment of error, Cross contends that the trial court erred in

admitting the 911 call. We do not agree.

{¶48} This Court reviews evidentiary rulings for an abuse of the trial court’s discretion.

State v. Patel, 9th Dist. No. 24030,

. Cross argues that the call was not

relevant, that its prejudicial value substantially outweighed its probative value, and that it was

hearsay in nature. We do not address the merits of these contentions, however, because he has

forfeited the argument based upon Evid.R. 403(A) and did not argue plain error on appeal. 16

{¶49} The law is well settled that failure to contemporaneously object during the

identification of a document and testimony regarding it forfeits appellate review. State v. Gray,

9th Dist. No. 08CA0057,

, at ¶7 (challenge to admission of photographs was

forfeited where defendant “filed a pre-trial motion in limine, but failed to contemporaneously

object during the presentation of and testimony about the photographs[,]” but waited until the

close of the State’s case to object to the admission of documents.) Here, Cross failed to

contemporaneously object during the identification of the 911 tape, the publishing of the tape

before the jury, and testimony regarding it. Instead Cross waited until the close of the State’s

case to raise an objection. Thus, the jury heard both the 911 tape and the testimony concerning

the call.

“[A] motion in limine does not preserve the record on appeal [;] * * * [a]n appellate court need not review the propriety of such an order unless the claimed error is preserved by an objection * * * when the issue is actually reached * * * at trial. The failure to timely advise a trial court of possible error, by objection or otherwise, results in a [forfeiture] of the issue for purposes of appeal.” (Internal citations and quotations omitted.)

{¶50} See, also, State v. Hancock,

,

, at ¶59; State v.

Bethel,

,

, at ¶92 (forfeiture declared where State called a

witness who identified photographs of witness and the defendant together flashing gang signs;

photo was published to the jury, with no objection by defense until the close of the case when

exhibits were offered into evidence). Cross’ challenge occurred at the close of the State’s case,

when the State moved to have its evidence admitted.

{¶51} “By forfeiting the issue for appeal, [Cross] has confined our analysis to an

assertion of plain error.” Gray at ¶7, citing State v. Payne,

,

,

at ¶23; Crim.R. 52(B). “While a defendant who forfeits such an argument still may argue plain

error on appeal, this court will not sua sponte undertake a plain-error analysis if a defendant fails 17

to do so.” (Citation omitted.) Akron v. Lewis,

,

;

App.R. 16(A)(7); App.R. 12(A)(2); Loc.R. 7(B)(7). As Cross did not assert plain error, we will

not undertake such analysis. Accordingly, his fifth assignment of error is overruled.

III.

{¶52} Cross’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

WHITMORE, J. CONCURS 18

BELFANCE, P. J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:

{¶53} I concur in the majority’s resolution of Mr. Cross’ first, second, fourth, and fifth

assignments of error. However, I respectfully dissent from the majority’s resolution of Mr.

Cross’ third assignment of error.

{¶54} At the time of Mr. Cross’ trial and sentencing, R.C. 2919.25(D)(5) provided that

if the victim was pregnant at the time of the violation, the violation required the imposition of a

mandatory prison term pursuant to (A)(6) of R.C. 2919.25. As noted by the majority, the section

does not contain an (A)(6) subsection. The trial court concluded in light of the intent of the

legislature to impose a mandatory prison term, that the trial court would “amend” the section to

read (D)(6) and would impose the prison term that accompanied that subsection. Such action is

not within the power of the courts. Therefore, I would sustain the assignment of error and

remand the matter for the trial court to sentence Mr. Cross under the general felony sentencing

guidelines for a fifth-degree felony.

APPEARANCES:

THOMAS C. LOEPP, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.