State v. James Strmac

• Decision Date: 18 March 1982
• Docket Number: 43745,82-LW-2166
• Parties: State of Ohio PLAINTIFF-APPELLEE, v. James Strmac DEFENDANT-APPELLANT.
• Court: Ohio Court of Appeals

State of Ohio PLAINTIFF-APPELLEE, v. James Strmac DEFENDANT-APPELLANT.

No. 43745.

82-LW-2166 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

March 18, 1982

APPEAL FROM COMMON PLEAS COURT No. CR-58320.

For plaintiff-appellee: John T. Corrigan.

For defendant-appellant: Hyman Friedman (Marillyn Fagan Damelio Kathy L. Moore).

JOURNAL ENTRY AND OPINION

PRYATEL C.J.

This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the aprellant; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:

Defendant-appellant, James Strmac, was indicted on September 2, 1980, for Receiving Stolen Property in violation of R.C. ] 2913.51, Possession of Criminal Tools in violation of R.C. ] 2923.24, Breaking and Intering, in violation of R.C. ] 2911.13 and Grand Theft, in violation of R.C. ] 2913.02.®1¯

Footnote 1 Defendant was originall indicted on the same four counts with co-defendant Clifford Bryant on December 11, 1979. These indictments were nolled on March 31, 1980, and defendant was re-indicted as indicated above.

A jury trial commented on March 13, 1981. Appellant was found guilty of all four counts and was sentenced to a term of two to five years for Receiving Stolen Property and Possession of Criminal Tools, and to a term of two to five years for Breaking and Entering and Grand Theft-the first two terms to run consecutively with the last two.

All four counts against the defendant stemmed from incidents which occurred in the early morning hours of December 3 1979, involving a stolen blue Ford 1977 pick-up truck allegedly used in a break-in at Willis Appliance Store at West 117th Street and Lorain Road in Cleveland, and the theft of a dishwasher from that store.

At trial the following evidence was adduced. Jeffrey Claxson, who resides at 14064 Lorain Avenue, testified that sometime before 5:00 a.m. on December 3, 1979, he reported to police the theft of his 1977 Ford pick-up truck, which he had parked in the lot outside his apartment building. Claxson recovered the vehicle from police four days later with the back smashed in, the rear taillight and ignition missing, and certain "personal effects" gone (Tr. 30). He also identified photographs of his truck shown to him by the prosecutor, and stated that the Gibson (dishwasher) carton shown in the back of the truck in these photographs was not in the truck when he parked it in his lot prior to its theft (Tr. 32).

Donald Willis, whose family operates a chain of appliance stores, stated that the alarm inside the Willis Appliance Store at West 117th Street was activated at 4:06 a.m. on December 3, 1979. He was contacted by Sonitrol (a security agency which conitors businesses for break-ins) and arrived at the store about thirty minutes later, where he made the following observations:

. . . we have an overhead garage door which is an entranceway to a warehouse and it's protected by a metal gate and the gate was smashed down and the garage door was down and the stuff that holds the garage door was down inside the building. (Tr. 37).

The area where this break-in occurred was a back-up area for storage of appliances sold in the store (Tr. 43). A Gibson dishwasher, valued at $170 wholesale and $250 retail, was missing from this storage area. He identified this dishwasher as being the same boxed dishwasher shown in a photograph of the back of the 1977 Ford pick-up truck already identified as Claxson's truck stolen from Claxson's parking lot.

The remaining witnesses for the State were all police officers, each of whom had some involvement with the incident, either prior to or following defendant's arrest, and who recounted their part in the entire episode.

A piece of broken taillight lens which Pt. Nagy stated was a rear taillight belonging to a 1977 Ford (Tr. 83-84) was found inside the store. No fingerprints were found at the scene of the break-in or on the dishwasher box-which Nagy said would be consistent with the use of gloves by the thieves.

Det. Cavett, who responded to the police call from Sonitrol about the break-in at Willis Appliance, went to the scene, where he surveyed the damage. He and his partner then left the scene while monitoring police broadcasts that "earlier a zone car had spotted a blue pick-up truck in the area of Warren Road . . .," that police were chasing this vehicle in the area of West 145th and Lorain, and next that "a patrolman on foot" was "chasing males through yards." When Cavett arrived in the West 125th Street area, the blue truck "had piled into a person's front yard" and two males had been caught and arrested. According to Cavett,

Two males involved gave the names of Terry Black which we later found out to be James Strmac, and Patrick Bryant, which we later found out to be Clifford Bryant. (Tr. 109).

Pt. Darryl Kiraly testified that early on the morning of December 3, 1979, he and his partner were working a plain clothes detail in response to numerous break-ins involving trucks in the area when they received a call of an alarm going off at the Radio Shack on Warren Road. En route to that site, the officers passed "a light blue Ford pick-up truck driving southbound on West 144th" (Tr. 52), in which they observed three males. Kiraly stated that when the males saw the police, they "speeded up", and that soon "the truck accelerated at a high rate of speed . . . and we lost sight of them (the males)" (Tr. 53). The officers then broadcast a description of the truck and its occupants. Kiraly later saw the truck again on West 125th Strees and Lorain, and identified the two males who were arrested in comnection with this incident as "a Bryant and a Terry Black"; moreover, he identified the defendant as the "Terry Black" in question. He further stated that these two males were the same males he had observed earlier riding in the pick-up truck, and that he recognized their clothing (Tr. 59, 61-62).

Early on the morning in question, Pt. Lindsey and his partner were monitoring calls about break-ins on the west side of Cleveland when they heard the call concerning the alarm at Willis Appliance. They then heard the police broadcast to watch for "a blue pick-up truck with three males [who] were involved in the Willis Appliance store" (Tr. 66), shortly after which they spotted the truck containing three white males at West 125 Street and Lorain Road. Their police car gave chase until the truck went over a curb and the three males "jumped out", one from the passenger side and two from the driver's side. Lindsey testified that he chased the two males who exited from the driver's side, until they were apprehended by other police in the area between West 125 and West 126 on Lennett Avenue. As a result "Terry Black" (whom Lindsey identified as the defendant) and "Patrick Bryant" (i.e., Clifford Bryant) were arrested. The third male was not apprehended.

Pt. Haymeyer explained the circumstances leading up to the arrests of "Patrick Bryant" and "Terry Black": while he and his partner were stationed at West 126 and Lennett, he saw two males come around the corner, with Pt. Lindsey giving chase. These males, who were stopped and arrested, were "Terry Black" (who Haymeyer identified as the defendant) and "Patrick Bryant" (i.e. Clifford Bryant).

Police found gloves in one of the yards where the footchase occurred prior to the arrest of these males (Tr. 70). Neither of these males was wearing gloves or had gloves on his person at the time of his arrest, according to Haymeyer (Tr. 100). The State also submitted for the jury's comparison an enlarged photograph of the footprint from a tennis shoe taken from the broken down door at Willis Applicane and an ink replica of the bottom of a tennis shoe which Clifford Bryant was wearing at the time of his arrest.

Pt. Haymeyer testified that defendant and Bryant were interviewed separately after their arrest. With respect to the defendant James Strmac, aka Terry Black,

We interviewed him, and advised his of his constitutional rights and he stated that he understood them and we asked him how he happened to be in that area, and he denied being in the stolen truck, and he denied anything of a break-in, and he said he was in the area.

He told us that him and Patrick Bryant had walked from West 45th Street up Lorain and went to a house of a friend of Patrick Bryant's and went to the house on West 122nd Street.

He stated they were there between 45 minutes and an hour, and when asked where the house was, he didn't remember. When asked who was there, he said there was two females and a male, and when asked their names, he didn't know. (Tr. 111).

With respect to Clifford Bryant, aka Patrick Bryant,

. . . he told us that him and Strmac were together and they took an RTA bus up Lorain and got off at West 117th and Lorain and proceeded to walk to West 122nd Street and they were going to a friend's house, but they never arrived there.

And Strmac said that he arrived there and they were there for 45 minutes. Strmac stated to us that they arrived there and they were there between 45 minutes and an hour.

Q. When they left that friend's house, that's when they were arrested?

A. Yes. (Tr. 112)

Testifying for the defense, Clifford Bryant stated that on the evening of December 2, 1979, his friend the defendant picked up Bryant in his (defendant's) blue Camero, and that the two men were cruising around all night while having some beers. About 4:30 a.m. their car ran out of gas near West 118th Street and Lorain Road. At this point, they saw approaching a...