[Cite as State v. Webb,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100487

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

GLENN WEBB DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571827

BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: June 19, 2014 ATTORNEYS FOR APPELLANT

Joseph C. Patituce Catherine R. Meehan Patituce & Associates, L.L.C. 26777 Lorain Road Suite 708 North Olmsted, Ohio 44070

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Christopher D. Schroeder Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, P.J.:

{¶1} Appellant Glenn Webb appeals his conviction for theft in office. For the

reasons stated herein, we affirm the judgment of the trial court.

{¶2} On March 1, 2013, appellant was indicted for one count of theft in office, in

violation of R.C. 2921.41(A)(1), a fourth-degree felony, and four counts of tampering

with records, in violation of R.C. 2913.42(A)(1).

{¶3} At trial, Ronald Tabor, criminal division administrator for the Cleveland

Municipal Court clerk’s office, testified that in response to a meeting with the deputy

chief from the court bailiff’s office, he examined a case file that was found to have

inconsistencies between what was on the journal entry and what was journalized in the

court’s computer. After listening to the audio recording regarding the case, he

discovered that the journalized information did not reflect the fine and costs that were

actually imposed. Rather, the journal entry was changed to show credit for time served

and that the sentence was satisfied. Tabor testified to a number of other cases in which

docket entries were changed to remove a fine that was issued with no money being

collected by the Cleveland Municipal Court. The docket entries were made by the court

journalizer who was assigned to Courtroom 3-C, Aisha Muhammad.

{¶4} Det. Todd Davis of the Intelligence Unit of the Cleveland Police Department

testified to his investigation in the matter. He reviewed approximately 200 random

Cleveland Municipal Court traffic case files. He found 40 of those files to have

discrepancies. Det. Davis met with some of the individuals whose files appeared to have been tampered with and took their statements. He also prepared photo arrays that were

shown to a few of these individuals by a “blind administrator.” None of the individuals

who were shown the photographs identified anyone other than appellant, who had been

the bailiff assigned to Courtroom 3-C, as the person who took their money.

{¶5} Aisha Muhammad, appellant’s codefendant, testified that she and appellant

had cooperated in stealing money from the Cleveland Municipal Court. She testified that

appellant would hand her a file jacket that would have the judgment entry and amount of

the fine scratched out and “DWP” circled for dismissed for want of prosecution. The

scratched-out file was a signal for Muhammad to journalize the case as dismissed for

want of prosecution and close the case or, in at least one case, to reflect “credit for time

served, sentence suspended.” Muhammad would issue a printout showing the case was

dismissed, and then appellant would get the money from the person who was fined and

return to Muhammad with her split of the money. Muhammad testified she and appellant

did this about 20 times, with most instances resulting in a split of $100 or $200 each.

She further testified the total amount stolen was more than $500. Muhammad stated she

never did this with any other bailiffs. She pleaded guilty to one count of tampering with

records, a felony of the fifth degree, and received one year of community control.

{¶6} The two other bailiffs who were assigned to Courtroom 3-C every day were

females. Both testified that other bailiffs would rotate into the courtroom on a daily

basis. Neither had seen any bailiff accept money from a person who was to pay a fine. {¶7} The state called six witnesses who testified to paying money to a male bailiff

who had approached them while they were waiting to pay a fine in the Cleveland

Municipal Court. Three of these witnesses identified appellant from a photo array. All

six witnesses had appeared in Courtroom 3-C and testified that they gave their money to a

male. Appellant was the only male bailiff permanently assigned to that courtroom and

was working in that courtroom on each of the days these witnesses appeared in court.

{¶8} The defense provided testimony from a witness who appeared in Cleveland

Municipal Court for a loud music ticket who claimed he was approached by a female,

gave her money for his ticket and was provided a receipt, and never dealt with a male

bailiff. The defense also provided testimony from a female deputy bailiff who worked in

Courtroom 3-C. Additionally, testimony was provided that handwriting samples were

sent to the Ohio Bureau of Criminal Investigation for analysis, but there was not enough

information that was altered on the files, which involved circled-out markings and scratch

marks, to make a comparison.

{¶9} The trial court denied appellant’s Crim.R. 29 motions. Appellant was found

guilty as charged of theft in office and not guilty of the remaining charges. The trial

court sentenced appellant to three years of probation, imposed a fine of $5,000, and

ordered appellant to pay restitution.

{¶10} Appellant timely filed this appeal. He raises four assignments of error for

our review. Under his first assignment of error, appellant claims he received ineffective

assistance of counsel. {¶11} In order to substantiate a claim of ineffective assistance of counsel, the

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

performance prejudiced the defendant so as to deprive him of a fair trial. State v.

Trimble,

,

,

, citing Strickland v.

Washington,

,

,

(1984). Judicial

scrutiny of defense counsel’s performance must be highly deferential.

.

In Ohio, there is a presumption that a properly licensed attorney is competent. State v.

Calhoun,

,

,

. The defendant has

the burden of proving his counsel rendered ineffective assistance. State v. Perez,

,

,

.

{¶12} Appellant claims his trial counsel was ineffective for withdrawing a motion

to suppress evidence of the identifications made from the photo arrays. He asserts that

the photo arrays were unduly suggestive. He claims that in one of the photo arrays,

appellant was the only individual smiling and was the only individual wearing glasses

despite the witness’s testimony that he told the detective the person who took his money

wore glasses. Appellant also claims this photo array was not shown using a blind

administrator. He argues that in the two other photo arrays shown, appellant was one of

three individuals wearing glasses despite the witnesses’ description of the person they

gave their money to as wearing glasses. Appellant also complains he was the only court

employee shown in any of the photo arrays. Appellant further argues that the photo arrays were not reliable despite their suggestive character because they were remote in

time and the descriptions provided did not match the actual description of appellant.

{¶13} The failure to file a motion to suppress does not constitute ineffective

assistance of counsel per se. State v. Brown,

,

,

. In order to establish ineffective assistance of counsel for failure to file

a motion to suppress, a defendant must establish that there was a basis to suppress the

evidence.

{¶14} In reviewing the admissibility of challenged identification testimony, we

must determine (1) whether the defendant has shown that the identification procedure

used was unduly suggestive; and if so, (2) whether the identification, viewed under the

totality of the circumstances, is reliable despite its suggestive character. State v.

Campbell, 8th Dist. Cuyahoga No. 99807,

.

{¶15} In this case, three of the witnesses were presented photo arrays from which

they identified appellant as the individual to whom they gave their money. Appellant’s

complaint centers on the fact that appellant was smiling and wearing glasses in the photo.

It has been recognized that certain features, such as a hairstyle or baldness, are features

that can easily be changed and that a photo array need not contain individuals of nearly

identical appearance. State v. Sullivan, 10th Dist. Franklin No. 10AP-997,

, ¶ 50. Even more readily changed is a smile or the wearing of glasses.

{¶16} Our review of the photo arrays reflects no significant variations in physical

characteristics of the individuals shown. Each of the photo arrays include men of relatively similar age, race, build, skin tone, facial hair, and photo background. We find

nothing unduly suggestive about the photo arrays. Although appellant also complains

that the witnesses provided descriptions that were not entirely accurate descriptions of

appellant, the differing accounts of features such as height, age, and weight are matters of

perception. Moreover, because the pretrial procedures were not unnecessarily

suggestive, any remaining questions as to the reliability of the identifications go to the

weight of the evidence, not to its admissibility. State v. Howard, 8th Dist. Cuyahoga

No. 100094,

; State v. Wills,

,

(8th Dist. 1997).

{¶17} Appellant also claims that one of the witnesses provided testimony that Det.

Davis was the one to show him the photo array. However, Det. Davis testified that the

photo array was shown to the witness using Det. Jody Remington as a blind administrator.

Consistent therewith, state’s exhibit No. 1 contains Det. Remington’s signature as the

person who administered the lineup.

{¶18} Finally, appellant states that his trial counsel failed to properly

cross-examine a witness regarding his identification testimony. The witness testified that

he saw the person who took his money on several occasions at the courthouse, despite the

fact that appellant had been suspended from the Cleveland Municipal Court at the time.

However, this testimony was elicited on cross-examination, and the witness testified that

on these occasions he saw appellant in the clerk’s office and on the first floor and that

appellant was not wearing his blue bailiff’s shirt. On redirect examination, the witness again stated that he had not seen appellant wearing a bailiff’s uniform during his recent

sightings at the courthouse. It is entirely plausible that appellant could have been at the

courthouse in a nonworking capacity.

{¶19} We are unable to find that counsel’s performance was deficient. Finding no

ineffective assistance of counsel, appellant’s first assignment of error is overruled.

{¶20} Under his second assignment of error, appellant claims the state was

improperly permitted to impeach its own witness. Appellant argues the trial court

allowed the state to read a witness his prior statement made to Det. Davis outside the

presence of the jury under the guise of refreshing the witness’s recollection. Appellant

asserts the state used the statement to impeach the witness’s testimony that he had given

his money to a female.

{¶21} The record reflects that the witness testified that he appeared in the

Cleveland Municipal Court to pay a ticket in June 2010. After appearing before the

judge, he was waiting to pay the ticket. He testified that he was called to the back by a

lady who asked him how much money he brought and that he provided her with money

and asked for a receipt. The witness was unable to recall the amount of money he paid.

The witness was then shown a statement he made to Det. Davis, but indicated he could

not read it without his glasses. The court permitted defense counsel to read the statement

to the witness outside the presence of the jury, with the premise of using the writing to

refresh the witness’s recollection. {¶22} A review of the record reflects that the witness was questioned outside the

presence of the jury. After authenticating the prior statement the witness made to Det.

Davis, the witness indicated he did not recall how much money he stated was given to the

court employee. Because the witness could not read the statement, the state read a

portion of the statement where the witness indicated he was approached by a female who

asked if he brought money and the witness told her he brought $200. Upon refreshing

his memory, the witness testified that $200 was in fact the amount he gave the employee.

The state then asked the witness if he recalled telling the detective that the woman walked

away and that he was approached by someone else. The witness responded that there

were two people involved, one male and one female. After the witness indicated he

could not recall what he told the detective about the male’s involvement, the state read a

portion of the statement where the witness indicated that he gave the $200 to an African

American male bailiff and asked the bailiff for a receipt and that the bailiff indicated it

was “for the lady.” The witness then testified that he may have “twisted” what occurred

and that he knew he was approached by both the female employee and the male

employee. Upon having his memory refreshed, the witness indicated he was waved back

by the female, had a conversation with her about money, and he remembered actually

giving the male the money and asking for a receipt.

{¶23} Upon resuming testimony before the jury, the witness testified that after

appearing before the judge, he was told by a bailiff to stand by a wall; that he was waved

back by a lady and had a conversation with her about how much money he had; and that after she walked off, he was approached by a male bailiff who asked for the money; and

that he gave the male bailiff $200.

{¶24} The admission of evidence is within the sound discretion of the trial court.

State v. Sage,

,

(1987). Furthermore, error may

not be predicated upon a ruling that admits or excludes evidence unless a substantial right

of the party is affected. Evid.R. 103.

{¶25} A party may refresh the recollection of a witness under Evid.R. 612 by

showing him his prior statement while testifying. Under the doctrine of present

recollection refreshed, the witness looks at the prior statement to refresh his memory of

the events, but then proceeds to testify from his present, independent knowledge. State v.

Powell,

,

,

, ¶ 57, citing State v. Scott,

,

(1972). The testimony of the witness whose

memory has been refreshed is the evidence and the content of the statement is not placed

before the jury. Powell at ¶ 57.

{¶26} Here, the witness was unable to remember the amount of money he provided

and the trial court permitted the statement he made to Det. Davis to be used to refresh his

recollection outside the presence of the jury. The witness also testified to a female and a

male being involved, but was unable to recall what he told the detective concerning the

male’s involvement. The witness’s statement was used to refresh his memory. Upon

resuming testimony before the jury, the witness testified from his present memory, which

had been refreshed. {¶27} Our review reflects that the witness’s statement was used to refresh his

recollection pursuant to Evid.R. 612, rather than to impeach the witness with a prior

inconsistent statement. Further, even if the testimony did not fall squarely under Evid.R.

612, we are unable to conclude a substantial right of the accused was affected by the

admission of the testimony. Indeed, there was other evidence presented establishing that

both a male court employee and a female court employee were involved. Aisha

Muhammad testified to her arrangement with appellant. Three witnesses identified

appellant from a photo array and two other witnesses also testified to giving their money

to a male bailiff. Accordingly, appellant’s second assignment of error is overruled.

{¶28} Under his third assignment of error, appellant claims his conviction is not

supported by legally sufficient evidence.

{¶29} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins,

,

,

. In reviewing a sufficiency challenge,

“[t]he 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.” State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶30} Appellant claims there was insufficient evidence to show the value of the

property stolen was greater than $500. Our review reflects that Aisha Muhammad

testified that she and appellant took money “about twenty times,” that each time she took “a couple of hundred dollars,” and that the total amount stolen was more than $500. The

six witnesses who gave their money to appellant testified to the amounts or estimated

amounts paid, which in the aggregate was greater than $500. Additionally, records from

the electronic dockets involving these witnesses reflected that the amount of uncollected

fines and the value stolen from Cleveland Municipal Court was greater than $500. Upon

this evidence, we find any rational trier of fact could have found beyond a reasonable

doubt that the value of property stolen was greater than $500. Appellant’s third

assignment of error is overruled.

{¶31} Under his fourth assignment of error, appellant claims his conviction was

against the manifest weight of the evidence.

{¶32} When reviewing a claim challenging the manifest weight of the evidence,

the court, reviewing the entire record, must 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.

Thompkins,

,

,

. Reversing a

conviction as being against the manifest weight of the evidence should be reserved for

only the exceptional case in which the evidence weighs heavily against the conviction.

A claim that a jury verdict is against the manifest weight of the evidence involves a

separate and distinct test that is much broader than the test for sufficiency. State v.

Drummond,

,

,

, ¶ 193. {¶33} Appellant claims the evidence in this case shows a mistaken identity. He

asserts that the witnesses provided varying descriptions of the individual involved and

none actually described appellant, that one of the state’s witnesses changed his testimony

after indicating he gave his money to a female, and that another witness claimed he saw

the individual who took his money at the courthouse on multiple occasions when

appellant was on suspension.

{¶34} Our review reflects that although varying descriptions were provided by the

witnesses, each witness testified to giving money to a male bailiff and three of the

witnesses identified appellant from a photo array. Testimony was provided that appellant

was the only male bailiff permanently assigned to Courtroom 3-C, and records from the

Cleveland Municipal Court established that appellant was working in that courtroom on

the dates that each of the six witnesses appeared in court. Consistent with these

witnesses’ accounts, Aisha Muhammad testified that appellant would approach people

waiting to pay their fine and take their money. She further testified that appellant would

provide her with an altered file for journalization and that she and appellant split the

money provided.

{¶35} The state presented evidence to establish beyond a reasonable doubt that

appellant, while being a public official, used his office in aid of committing a theft

offense and the amount stolen was over $500 and less than $5,000. The jury, as trier of

fact, heard the testimony and was in the best position to weigh the evidence and assess the

witnesses’ credibility. After examining the entire record, we cannot say that the jury lost its way or created a manifest miscarriage of justice in convicting appellant of theft in

office, a felony of the fourth degree. Appellant’s fourth assignment of error is overruled.

{¶36} Judgment affirmed.

It is ordered that appellee recover from appellant 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. 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.

SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and EILEEN T. GALLAGHER, J., CONCUR