[Cite as Brooklyn v. Woods, 2016-Ohio-1223.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 103120




                                CITY OF BROOKLYN
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   WILLIAM WOODS
                                                      DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                                      Criminal Appeal from the
                                       Parma Municipal Court
                                       Case No. 14CRB03624

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

        RELEASED AND JOURNALIZED: March 24, 2016
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street
2nd Floor
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Hillary Goldberg
Brooklyn City Prosecutor
7619 Memphis Avenue
Brooklyn, Ohio 44144
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, William Woods (“Woods”), appeals from his petty theft

conviction following a bench trial in the Parma Municipal Court. He raises the following

six assignments of error for review:

       1. The appellant was denied his right to counsel as guaranteed to him by
       the Sixth Amendment to the U.S. Constitution, and Article I, Section 10 of
       the Ohio Constitution.

       2. The appellant failed to receive effective assistance of counsel during the
       trial as guaranteed by the Sixth Amendment, and the Ohio Constitution.

       3. The appellant’s convictions are against the manifest weight of the
       evidence.

       4. The evidence was insufficient to convict the appellant of theft.

       5. The appellant was denied due process of law and a fair trial as
       guaranteed to him by the Fifth and Sixth Amendments to the U.S.
       Constitution when the trial court failed to grant a five minute recess to
       allow him to obtain demonstrative evidence to proffer as an exhibit; Article
       I, Section 10 of the Ohio Constitution.

       6. The appellant was denied due process of law, a fair trial, the right to be
       present during a critical stage of the trial, his right to confront evidence
       against him, and his right to a public trial in violation of the Fifth, Sixth,
       and Fourteenth Amendments; and Article I, Sections 10 and 16 of the Ohio
       Constitution.

       {¶2} After careful review of the record and relevant case law, we affirm Woods’s

petty theft conviction.
                           I. Procedural and Factual History

         {¶3} Woods was charged with petty theft in violation of R.C. 2913.02. The

matter proceeded to a bench trial in the Parma Municipal Court where the following facts

were adduced.

         {¶4} In June 2014, Woods entered a Walmart store located in the city of Brooklyn,

Ohio. Walmart asset protection specialists, Shawn Foster (“Foster”) and Celso Dela

Cruz (“Cruz”), testified that they observed Woods enter the store’s electronics department

and place a $99.96 TV wall mount, and a $17.96 electronic accessory into his shopping

cart. Woods then left the electronics department and traveled to a grocery aisle located

on the other side of the store. While he was in the grocery aisle, Foster and Cruz

followed behind Woods at a safe distance and witnessed him peel off the Universal

Product Code (“UPC”) sticker from the less expensive electronic accessory and place it

over the UPC sticker located on the TV wall mount box. According to Cruz, Woods

“left the [electronic accessory box] behind” and proceeded to the check out line. At that

time, the Walmart cashier scanned the UPC sticker located on the TV wall mount box,

and Woods paid $17.96 for the TV wall mount.

         {¶5} Once Foster and Cruz verified with the cashier that Woods only paid $17.96

for the TV wall mount, they stopped him in the vestibule area of the store after he passed

the last point of sale. Following a brief conversation, Woods was escorted to Walmart’s

asset protection office where Woods “admitted to switching the [price] tags” on the two

items.
       {¶6} Foster and Cruz admitted that Walmart’s security cameras did not capture

Woods switch the UPC stickers on video. Cruz explained that although Walmart has

“between 200 and 300” security cameras throughout the store, the cameras are in “fixed”

positions. Cruz testified that, based on these limitations, the security camera located near

the grocery aisle where Woods switched the UPC stickers did not have a sufficient

camera angle to observe Woods’s criminal activity. During the cross-examination of

Cruz, defense counsel attempted to play the surveillance footage taken of Woods while he

was in the electronics department of the store. However, because the prosecutor was

unable to view the video before trial because of technological difficulties, the parties

agreed to mark the video as “heard and submitted” and admitted it into evidence as “Joint

Exhibit A.”

       {¶7} Defense counsel rested without presenting any witnesses.

       {¶8} At the conclusion of trial, the trial court found Woods guilty of petty theft.

The court imposed a $250 fine and sentenced Woods to 180 days in jail with credit for

time served.

       {¶9} Woods now appeals from his conviction.

                                 II. Law and Analysis

       {¶10} For the purposes of judicial clarity, we review several of Woods’s

assignments of error out of order.
                                A. Constitutional Rights

       {¶11} In his first assignment of error, Woods argues the trial court’s decision to

review the security video outside defense counsel’s presence deprived him of his right to

counsel as guaranteed to him by the Sixth Amendment to the U.S. Constitution and

Article I, Section 10 of the Ohio Constitution.

       {¶12} In his sixth assignment of error, Woods argues the trial court’s decision to

review the security video without him present denied him due process of law, a fair trial,

the right to be present during a critical stage of the trial, his right to confront evidence

against him, and his right to a public trial in violation of the Fifth, Sixth, and Fourteenth

Amendments of the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio

Constitution.

       {¶13} Because Woods’s first and sixth assignments of error raise related

arguments, we address them together.

       {¶14} The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution guarantee the right to counsel at all critical stages of a

criminal proceeding. State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d

1033, ¶ 13; Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004)

(“[t]he Sixth Amendment safeguards to an accused who faces incarceration the right to

counsel at all critical stages of the criminal process”).       “[I]n addition to counsel’s

presence at trial, the accused is guaranteed that he need not stand alone against the state at

any stage of the prosecution, formal or informal, in court or out, where counsel’s absence
might derogate from the accused’s right to a fair trial.” (Footnote omitted.) United

States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

       {¶15} Similarly, one of most basic rights reserved by the Confrontation Clause of

the Sixth Amendment is a defendant’s correlative right to be present in the courtroom

during every stage of the trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25

L.Ed.2d 353 (1970). Section 10, Article I of the Ohio Constitution and Crim.R. 43(A)

also require the defendant’s presence.       State v. McCollins, 8th Dist. Cuyahoga No.

95486, 2011-Ohio-2398, ¶ 7, citing Crim.R. 43(A) and the Ohio Constitution, Article I,

Section 10. “[T]he presence of a defendant is a condition of due process to the extent

that a fair and just hearing would be thwarted by his absence, and to that extent only.”

Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934),

overruled on other grounds, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20

L.Ed.2d 491 (1968).

       {¶16} The right to a public trial is guaranteed by the Sixth Amendment to the

United States Constitution and by Section 10, Article I of the Ohio Constitution. State v.

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. The violation of

the right to a public trial is a structural error and is not subject to harmless error analysis.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 50, citing

Waller v. Georgia, 467 U.S. 39, 49-50, 104 S.Ct. 2210, 81 L. Ed.2d 31 (1984), fn. 9.

Before discussing structural error, however, an appellate court must first find that a
constitutional error has occurred. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791,

842 N.E.2d 996, ¶ 55.

       {¶17} Collectively, Woods argues the trial court violated the foregoing

constitutional guarantees by (1) failing to play the surveillance video in open court, and

(2) viewing the surveillance video outside of his presence and the presence of counsel.

Woods maintains that the surveillance video was critical to his defense and that the trial

court’s actions deprived him of a fair trial.

       {¶18} At the trial, defense counsel argued that Woods never placed an electronic

accessory into his shopping cart as suggested by Foster and Cruz. In furtherance of this

theory, defense counsel attempted to rebut Cruz’s testimony that he observed Woods

place the TV wall mount, and an electronic accessory into his shopping cart, by

suggesting that Walmart’s surveillance video only showed Woods place the TV wall

mount into his cart before he left the electronics department.   Relevant to the arguments

raised in his first and sixth assignments of error, the following exchange took place

during defense counsel’s cross-examination of Cruz:

DEFENSE COUNSEL: And does the [surveillance] video show my client selecting one
item or two?

CRUZ: Two.

DEFENSE COUNSEL: Your Honor, if we could show the video.

THE COURT: Do we have it?

PROSECUTOR: Your Honor, I actually went over this with him and we spoke prior to
court and I couldn’t play it, I’ve never seen the video, you saw the video and you said it
doesn’t show anything and I can’t get it to play so we can give it to her and let her play it
and do a heard and submitted if you want but I have absolutely no way of getting my
computer —

DEFENSE COUNSEL: It doesn’t play on a PC, or it doesn’t play on a MAC, it would
play on a PC.

PROSECUTOR: I don’t have it and I’m not bringing it in so if he has a way to show it,
it’s his Exhibit.

THE COURT:       Do we have the actual, do we have the video here?

DEFENSE COUNSEL: I have a copy.

THE COURT: So why don’t we continue with the testimony and then I will, we will do
a heard and submitted — [Defense counsel] I would love to see that video.

PROSECUTOR: Your Honor, we can do both but this is the one that chain of custody
— but you can give yours too.

THE COURT: Let me take both of them okay and that way I can look at both of them
and then make my decision after I see this.

DEFENSE COUNSEL: That’s fine.

THE COURT: Perfect. Thank you. Should we call it Joint Exhibit?

DEFENSE COUNSEL: That’s fine Your Honor.
THE COURT: Okay then I will[.]

       {¶19} In light of the forgoing exchange, we find the trial court did not violate

Woods’s constitutional rights by reviewing the surveillance video outside the presence of

Woods or his counsel. While the decision not to play the video during trial may not

have been the preferred practice, technological difficulties in this case led to the parties’

agreement to mark the video as “heard and submitted” and introduce it into evidence as

“Joint Exhibit A.” Thus, the exhibit was submitted to the court, as the trier of fact, for

consideration during its deliberations.    Under these circumstances, we are unable to
conclude that the time in which the trial court reviewed the video qualified as a “critical

stage” of the proceedings. See State v. Dovala, 9th Dist. Lorain No. 05CA008767,

2007-Ohio-4914 (finding no constitutional violations where the trial court, rather than

playing a videotape during trial, ordered the state to mark it as an exhibit and gave the

tape directly to the jury during deliberations.); People v. Young, 996 N.E.2d 671

(Ill.App.2013), ¶ 24 (“the court’s watching and listening to the DVDs was not a ‘critical

stage’ of defendant’s trial.”); State v. Pacelli, 350 P.3d 1138, 2015 Kan.App. Unpub.

LEXIS 477, * 22 (Kan.App.2015) (“the [trier of fact]’s review of the trial exhibit was not

a critical stage of the proceeding at which [defendant] had a constitutional right to be

present personally or through counsel.”).   See also Rothgery v. Gillespie Cty., Texas, 554

U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), fn. 16 (noting that “critical

stages” include proceedings between an individual and agents of the state that amount to

trial-like confrontations at which counsel would help the accused in coping with legal

problems or meeting the adversary.).

      {¶20} In this case, Woods was present and represented by counsel during all

critical stages of the proceedings, including the portion of trial where defense counsel

relied on the surveillance video to suggest Foster and Cruz’s testimony was unreliable.

The extent to which counsel utilized the video during the trial is more adequately

addressed in a claim of ineffective assistance of counsel, as argued in Woods’s second

assignment of error.
         {¶21} Moreover, although the surveillance video was not shown in open court, the

parties marked it as an exhibit thereby making it a public record available for public

viewing. Dovala at ¶ 12, citing Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854

N.E.2d 1038, at ¶ 55.       Accordingly, the trial court’s recommendation to admit the

surveillance video into evidence without playing it in open court was not a constitutional

error.    Id. at ¶ 13.

         {¶22} Woods’s first and sixth assignments of error are overruled.

                   B. Sufficiency and Manifest Weight of the Evidence

         {¶23} In his third and fourth assignments of error, Woods argues his conviction

was not supported by sufficient evidence and was against the manifest weight of the

evidence.

         {¶24} 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 the crime proven beyond a reasonable doubt.

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

         {¶25} In contrast to a challenge based on sufficiency of the evidence, a manifest

weight challenge attacks the credibility of the evidence presented and questions whether

the state met its burden of persuasion rather than production.   State v. Whitsett, 8th Dist.
Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, at 387. This court

reviews the entire record, weighs the evidence and all reasonable inferences, considers

the witnesses’ credibility and determines 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 at 387, citing State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶26} In conducting such a review, this court remains mindful that the credibility

of the witnesses is primarily for the trier of fact to assess. State v. Bradley, 8th Dist.

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus. Reversal on manifest weight

grounds is reserved for the “‘exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins at 387, quoting Martin at 175.

       {¶27} In this case, Woods was convicted of petty theft in violation of R.C.

2913.02(A)(1), which states, in relevant part:

       No person, with purpose to deprive the owner of property or services, shall
       knowingly obtain or exert control over either the property or services in any
       of the following ways: * * * (3) by deception.

       {¶28} In challenging the sufficiency of the evidence supporting his conviction,

Woods contends the trial court’s finding of guilt improperly “piggybacked” inferences

and relied on speculation. In short, Woods argues the trial court inferred his guilt merely

because he purchased the TV wall mount at a reduced price, without sufficient evidence

that he altered the UPC sticker on the TV wall mount box. We disagree.
        {¶29} In this case, the state presented the testimony of two Walmart asset

protection specialists who testified that they observed Woods remove the UPC sticker

from a less expensive electronic accessory and place it over the UPC sticker located on

the TV wall mount box.

        {¶30} Specifically, Foster testified that he observed Woods place the TV wall

mount, valued at $99.97, and an electronic accessory, valued at $17.96, into his shopping

cart.   Foster followed Woods as he left the electronic department and traveled to a

grocery aisle where Woods “switched the tags for the wall mount and the cheaper

electronics accessory.”   When Woods checked out, Foster “confirmed that [Woods] did

pay a smaller amount for the wall mount than was advertised” before he and Cruz stopped

Woods after he “passed the last point of sale.”   In addition, Foster testified that once he

was escorted to the store’s loss prevention office, Woods “admitted to switching the

stickers” on the two items.

        {¶31} Similarly, Cruz testified that Woods placed a TV wall mount and a cheaper

electronic accessory into his shopping cart. Cruz then observed Woods make his way to

the grocery aisle where he “took the cheaper label and put it on the, over the UPC of the

expensive [TV wall mount], and left the cheaper [electronic accessory] behind.”       Once

Woods purchased the items in his shopping cart, Cruz confirmed with the store cashier

that Woods paid $17.96 for a TV wall mount priced at $99.96.                Based on this

information and his prior observations, Cruz stopped Woods once he passed the last point
of sale and escorted him to the store’s loss prevention office. Cruz testified that Woods

admitted to “switching the UPCs or the stickers” on the two items.

          {¶32} Viewing this evidence in a light most favorable to the prosecution, we find

there was sufficient evidence for the trial court to find all the material elements of the

offense beyond a reasonable doubt.      In our view, the testimony presented at trial did not

require the trial court to stack inferences or rely on speculation.   Instead, the prosecution

presented credible evidence that Woods knowingly deceived Walmart by switching UPC

stickers on its property to obtain a TV wall mount for a lesser amount than it was actually

priced.     See Middleburg Hts. v. Feltes, 8th Dist. Cuyahoga No. 81776, 2003-Ohio-3248.

 Accordingly, Woods’s petty theft conviction is supported by sufficient evidence.

          {¶33} In challenging the weight of the evidence supporting his conviction, Woods

contends that Foster’s and Cruz’s testimony contain numerous inconsistencies and

deficiencies that cast doubt on whether their recollection of the incident was credible.

Woods identifies the following inconsistencies or deficiencies in their testimony (1)

Foster’s varied testimony relating to whether he witnessed Woods discard the electronic

accessory box in the grocery aisle; (2) Cruz’s initial testimony that he did not see what

happened to the electronic accessory box, but subsequent testimony that he saw Woods

leave the box behind; (3) Foster’s testimony that Woods had two bottles of soda in his

shopping cart when he entered the electronics department while the surveillance video

shows his cart was empty; (4) the fact that neither Foster or Cruz testified that Woods

selected a 24-pack of water while he was in the grocery aisle, thereby creating an
“inference that the two witnesses obviously weren’t there at the [grocery] aisle, or paying

close attention to Woods as they claimed”; (5) the size and location of the UPC label on

the TV wall mount box; and (6) Cruz’s confusing testimony concerning whether Woods’s

admission to the theft occurred in the asset protection office, the vestibule area of the

store, or in both locations.

       {¶34} In addition, Woods argues that portions of Foster’s and Cruz’s testimony are

rebutted by the surveillance footage taken of Woods while he was in the electronics

department. As stated, Foster and Cruz testified that they observed Woods place the TV

wall mount and the electronic accessory into his shopping cart before he left the

electronics department.        In contrast, Woods maintains that the surveillance video only

shows him place the TV wall mount into his shopping cart. Thus, Woods maintains that

the surveillance video supports his position that he (1) never picked up an electronic

accessory while he was in the store, (2) did not switch the price tag on the TV wall

mount, and (3) had no knowledge that the TV wall mount contained an incorrect price tag

at the time he purchased the item.

       {¶35} We are mindful that a conviction is not against the manifest weight of the

evidence solely because the jury heard inconsistent or contradictory testimony. State v.

Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th

Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11. The decision whether, and to

what extent, to believe the testimony of a particular witness is “within the peculiar
competence of the factfinder, who has seen and heard the witness.” State v. Johnson,

8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 54.

       {¶36} After careful consideration of the challenged testimony, we find this is not

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

rendering its verdict, the trial court stated that it carefully considered all of the evidence,

including the surveillance video and the testimony provided by Foster and Cruz. The

record reflects that defense counsel spent a considerable amount of time cross-examining

Cruz and Foster on the perceived inconsistences relied upon by Woods in this assignment

of error.   In our view, the challenged portions of the witnesses’ testimony reflected their

vague recollection of certain details of the incident.   They do not, however, cast serious

doubt on Foster and Cruz’s testimony that they observed Woods remove the UPC sticker

from the less expensive electronic accessory and place it over the UPC sticker located on

the TV wall mount.

       {¶37} Moreover, with respect to Woods’s argument that the surveillance video

contradicts Foster’s and Cruz’s testimony, we note that this court has reviewed the

relevant surveillance footage and find that it is not definitive given the limitations of the

camera angle.    The relevant surveillance footage, labeled “Clip_2,” depicts the rear aisle

of the electronics department in Walmart. At approximately 5:56:10 p.m., the video

shows Woods examining the different models of TV wall mounts located on the back

shelf of the store.      His shopping cart appears to be empty at that time.                At

approximately 5:57:10 p.m., Woods, with his back to the camera, picks up a large box and
places it in his shopping cart. At 5:58:30 p.m., Woods briefly walks down a second

electronic aisle that runs perpendicular to the aisle where the TV wall mounts are located.

 Given the position of the security camera, Woods disappears from the video for

approximately ten seconds while he is in the second electronic aisle.              When he

reappears, it is unclear, given the quality of the video footage, whether the electronic

accessory is or is not in Woods’s shopping cart when he exits the electronics department

of the store.   Given the limitations of the surveillance video, we defer to the trial court’s

resolution of the alleged inconsistencies between the video footage and the testimony

provided by Foster and Cruz.

       {¶38} Based on our review of the entire record in this case, weighing the strength

and credibility of the evidence presented and the inferences to be reasonably drawn

therefrom, we are unable to conclude that the trier of fact clearly lost its way and created

such a manifest miscarriage of justice that Woods’s petty theft conviction must be

reversed and a new trial ordered.

       {¶39} Woods’s third and fourth assignments of error are overruled.

                    C. The Trial Court’s Denial of Defense Counsel’s

                                    Request for a Recess

       {¶40} In his fifth assignment of error, Woods argues he was denied due process of

law and a fair trial when the trial court denied defense counsel’s request for a brief recess

in the midst of trial.
       {¶41} The decision whether to grant a continuance is within the “broad, sound

discretion” of the trial court and will not be reversed absent an abuse of discretion. In re

S.C., 8th Dist. Cuyahoga No.102350, 2015-Ohio-2410, ¶ 23.            An abuse of discretion

occurs where the trial court acted unreasonably, arbitrarily, or unconscionably.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶42} In State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), the Ohio

Supreme Court identified certain factors to be considered in determining whether a

continuance is appropriate.   These factors include:

       the length of the delay requested; whether other continuances have been
       requested and received; the inconvenience to litigants, witnesses, opposing
       counsel and the court; whether the requested delay is for legitimate reasons
       or whether it is dilatory, purposeful, or contrived; whether the defendant
       contributed to the circumstance which gives rise to the request for a
       continuance; and other relevant factors, depending on the unique facts of
       each case.

Id. at 67-68.

       {¶43} In this case, defense counsel requested a five-minute recess so that Woods

could retrieve demonstrative evidence from his vehicle.      Defense counsel indicated that

the demonstrative evidence included “the very items that are alleged to have been stolen.”

 Counsel clarified that the items were not the original items actually involved in the

incident, but were “similar” and could assist the court in rendering its verdict.

       {¶44} In this instance, Woods clearly contributed to the circumstance that led to

the requested recess by leaving the items in his vehicle.     Moreover, the trial court was

aware that the items intended to be introduced as demonstrative evidence were not the
original boxes involved in the incident.   Under these circumstances, the court was free to

conclude that the probative value of demonstrative evidence, including the size of the

boxes or location of the UPC stickers, would have been, at the very most, cumulative to

the photograph of the original TV wall mount box, marked exhibit D, and the testimony

provided at trial. Woods has not articulated a basis to suggest otherwise.

       {¶45} Accordingly, the trial court did not abuse its discretion by denying the

requested recess. Further, there is nothing in the record to suggest that Woods was

denied due process of law or the right to a fair trial without the use of the demonstrative

evidence.

       {¶46} Woods’s fifth assignment of error is overruled.

                         D.    Ineffective Assistance of Counsel

       {¶47} In his second assignment of error, Woods argues he received ineffective

assistance of counsel.   The test for ineffective assistance of counsel requires a defendant

to prove “(1) that counsel’s performance was deficient, and (2) that the deficient

performance prejudiced the defendant.” Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing a claim of ineffective assistance of

counsel, we examine whether counsel’s acts or omissions “were outside the wide range of

professionally competent assistance” and “recognize that counsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 690.       To establish the second element, the

defendant must demonstrate that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at

694.   “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Id. at 686.

                 1. Introduction of Evidence Allegedly Not Provided
                        to Defense Counsel During Discovery

       {¶48} Initially, Woods argues defense counsel rendered ineffective assistance of

counsel by failing to request sanctions or seek a continuance when the prosecutor

introduced evidence that had not been provided to defense counsel during discovery.

       {¶49} During Cruz’s direct examination, the prosecutor attempted to introduce the

receipt for purchases made by Woods on the day of the incident.       At that point, defense

counsel informed the trial court that he did not receive the document prior to trial:

       PROSECUTOR: And I’m going to show you —

DEFENSE COUNSEL: For what purpose?               I mean that was never shown to me.

PROSECUTOR: It was in the same packet of everything else you have.

DEFENSE COUNSEL: No you only gave me the two photos that we discussed in the
e-mail.

PROSECUTOR: You have the Walmart, I gave you that.

DEFENSE COUNSEL: You gave me what?

PROSECUTOR: The receipt.

DEFENSE COUNSEL: Yes that was not in there.

PROSECUTOR: It’s fine I don’t need to.
      {¶50} Shortly thereafter, the prosecutor attempted to introduce testimony from Cruz that Woods

had admitted to “switching the tags.” Again, defense counsel objected to the testimony, noting that

while he stipulated to Woods’s “admission to the theft,” he had not received information relating to the

“switching of tags,” either by way of summary of the statement from Cruz or a statement made by

Woods:

      PROSECUTOR: And did you have any discussions with Mr. Woods about the theft?

      CRUZ: Yes

      PROSECUTOR: Or the switching of tags?

      CRUZ: Yes I did.

      DEFENSE COUNSEL: Objection
      THE COURT: Hold please.

      DEFENSE COUNSEL: First of all any discussions relating to specifically the switching
      of tags were never revealed to me Your Honor. Anything beyond this is news to me if
      my client —

      PROSECUTOR: I’m just going on what the report — I’m sorry Your Honor if that’s
      not news to him it’s in the report that he says where it says the Defendant admitted, so
      that’s all, I mean, we’re just going back, I mean that’s part of what he said he did.

      THE COURT: The first witness testified to the same thing?

      DEFENSE COUNSEL: Just to the admission of the theft, that’s it. I’ll stipulate —

      PROSECUTOR: That’s what he did.

      DEFENSE COUNSEL: — there was an admission to the theft but that was it.

      {¶51} Woods contends that because the receipt and a summary of the admission to “switching

the tags” were not provided to defense counsel during the discovery process, defense counsel “should
have asked that the evidence be excluded, or that a reasonable continuance be granted in order to

evaluate the impact of this [new] information.”

             {¶52} Woods correctly states that Crim.R. 16 requires the prosecution to disclose

      any evidence “favorable to the defendant and material to guilt or punishment.”      Crim.R.

      16(B)(5). Under Crim.R. 16(L)(1), if it is brought to the attention of the trial court that a

      party has failed to comply with this discovery rule, the trial court may order or permit the

      discovery, order a continuance, prohibit the party from introducing the material not

      disclosed, or make any other order it deems just under the circumstances. State v.

      Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 66.

             {¶53} With respect to the prosecutor’s attempt to introduce the original receipt of

      Woods’s purchases, the record reflects that defense counsel raised a timely objection that

      ultimately caused the prosecutor to forego its attempt to introduce the receipt and move

      forward with its line of questioning.       Thus, we are unable to conclude that defense

      counsel’s successful objection constituted a deficient performance.    Furthermore, Woods

      has not demonstrated how he was prejudiced by counsel’s failure to request sanctions or a

      continuance pursuant to Crim.R. 16(L)(1), particularly where the challenged exhibit was

      not introduced into evidence, and there was ample testimony relating to the retail value of

      Walmart’s property and the amount Woods actually paid for the TV wall mount.

             {¶54} Moreover, the testimony presented at trial indicated that Cruz’s incident

      report, which defense counsel utilized during his cross-examination of Cruz, contained a

      written statement by Cruz that Woods “admitted to the theft.” While Woods attempts to
make a distinction between the phrases, “admitted to the theft” and “admitted to

switching tags,” we find that defense counsel was provided with sufficient notice of the

admission during the discovery process and that Cruz was permitted to expand upon the

written statements contained in his incident report.     Thus, any request to exclude the

portions of Cruz’s testimony relating to the admissions made to him by Woods would

have proven unsuccessful.      Accordingly, we are unable to conclude that counsel’s

performance fell below an objective standard of reasonableness.

          2. Failure to Bring Demonstrative Evidence into the Courtroom

       {¶55} As discussed in his fifth assignment of error, Woods argues defense counsel

was ineffective for failing to ensure that the demonstrative evidence was available at trial.

 Without addressing the admissibility of the demonstrative evidence, we find there is

nothing in the record to suggest, nor does Woods allege, that the outcome of trial would

have been different had the demonstrative evidence been introduced at trial.

Accordingly, Woods was not prejudiced by defense counsel’s failure to ensure that the

demonstrative evidence was available at trial.

        3. Failure to use the Surveillance Video to Cross-Examine Witnesses

       {¶56} Finally, Woods argues defense counsel was ineffective for failing to use the

surveillance video during the cross-examination of Foster and Cruz.

       {¶57} After careful consideration of the relevant testimony and the surveillance

video, we find Woods was not prejudiced by defense counsel’s failure to use the video

during cross-examination.     We note that defense counsel attempted to use the video
during the cross-examination of Cruz, but was prevented from doing so due to

technological difficulties.   Nevertheless, the video was submitted to the trier of fact as a

joint exhibit, and defense counsel actively argued throughout the remainder of trial that

the contents of the video contradicted Foster’s and Cruz’s testimony and thereby called

their credibility into question. Moreover, the court expressly stated that it considered the

video in reaching its verdict.

       {¶58} Under these circumstances, Woods has not shown how the outcome of the

trial would have been different had counsel used the surveillance video during its

cross-examination of the City’s witnesses.

       {¶59} Woods’s second assignment of error is overruled.

                                       III. Conclusion

       {¶60} Woods’s petty theft conviction was supported by sufficient evidence and

was not against the manifest weight of the evidence. Woods did not receive ineffective

assistance of counsel during his trial. The trial court did not abuse its discretion by

denying defense counsel’s request for a brief recess so that Woods could retrieve

demonstrative evidence from his vehicle. Finally, the trial court did not violate Woods’s

constitutional rights by failing to play the surveillance video in open court or by

reviewing the video outside the presence of Woods and his counsel.

       {¶61} 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 Parma

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. 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.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
