COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59702 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ERNEST GILBERT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JANUARY 30, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-236277 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: Stephanie Tubbs Jones Patrick E. Talty, Esq. Cuyahoga County Prosecutor Suite 211 The Justice Center 20800 Center Ridge Road 1200 Ontario Street Rocky River, OH 44116-4386 Cleveland, OH 44113 - 2 - PATTON, P.J., On February 8, 1989, the defendant-appellant, Ernest Gilbert ("appellant") was indicted on two counts of felonious assault in violation of R.C. 2903.11. Both counts of the indictment also contained a gun specification and a peace officer specification. The indictment involved alleged criminal conduct which occurred on January 20, 1989 and February 4, 1989. A number of pretrial motions were made by defense counsel including a motion for separation of counts filed on July 21, 1989. The motion was denied by the trial court on December 6, 1989. The case proceeded to trial by jury on March 8, 1990. The following facts were adduced at trial: On January 20, 1989, at approximately 10:00 p.m., Cleveland Police Officer Descisio and his partner were pursuing two suspects on foot. Cleveland Police Detective Charchenko, who was off-duty at the time, saw the officers pursuing the two suspects and joined in the chase. Detective Charchenko pursued the two suspects to a Cleveland Metropolitan Housing Association property located on West 25th Street. At this point it appeared as if the suspects were attempting to gain entrance into one of the apartment units. As DetEctive Charchenko approached the suspects he identified himself as a police officer and exhibited his badge. One of the suspects immediately ran off. The appellant turned around, reached into his waistband and then ran into a parking lot next - 3 - to the apartment building. He ran behind a car, pulled out a chrome-plated gun and fired eight shots toward Detective Charchenko. Detective Charchenko dove behind the same car where he managed to return six shots. Shortly after the shooting started Officer Descisio appeared at the scene. He also fired at the appellant, but the appellant managed to flee behind a gas station and escape. Both Detective Charchenko and Officer Descisio identified the appellant as the individual who was shooting at Detective Charchenko on January 20, 1989. Further, Kim Tatum who lived in the apartments next to the parking lot where the shooting occurred testified that she observed the appellant flee behind the gas station. The following morning Detectives Fransen and Suekric investigated the scene of the incident. They discovered empty nine millimeter casings which were taken into evidence. On February 4, 1989, Richard Coleman was stopped by Cleve- land Police Officer Barrow who suspected the vehicle he was driving may have been stolen. Upon approaching he noticed bullet holes in the side of the vehicle. Coleman indicated that the appellant shot at the car with a chrome nine millimeter automatic when Coleman refused to loan the car to him. Coleman also informed the officer that the appellant resided at 1705 East 85th Street. - 4 - Officer Barrow forwarded the information he received from Coleman, including appellant's address, to his supervisors. Back-up units were dispatched and a number of officers responded to the 1705 East 85th Street address. Officer Barrow and Sgt. Albright proceeded to apartment three at the address. They knocked at the door and were given permission to search the interior of the apartment by the individual who answered the door. As Barrow was entering the hallway he encountered the appellant. Barrow ordered the appellant to halt. In response the appellant reached into his waist, drew a gun and pointed it in the direction of Officer Barrow as the appellant was falling backwards into a bedroom. Officer Barrow fired a shotgun blast which missed the appellant. The appellant then barricaded himself in the bedroom. Other officers arrived in the apartment and after several oral ex- changes the appellant surrendered to the police after relinquish- ing control of a .38 caliber revolver. After appellants arrest the police recovered a live nine millimeter round in the pocket of a jacket that was found in the bedroom where the appellant had barricaded himself. They also found thirty-nine rounds of .38 caliber ammunition in the same coat. In addition, the police found one empty nine millimeter casing near the back porch of the 1705 East 85th Street address. Subsequently, the nine millimeter casing recovered from the 1705 East 85th Street address was compared with the previously - 5 - recovered nine millimeter casings and it was determined by the Scientific Investigation Unit that each was fired from the same gun. On March 13, 1990, the appellant was convicted of two counts of felonious assault as charged in the indictment. Thereafter, on March 15, 1990, the appellant was sentenced to consecutive terms of five to twenty-five years, the minimum term of actual incarceration to be served. In addition, he was required to serve three year terms of actual incarceration on each of the specifications. The instant appeal followed. Appellant's first assignment of error provides: THE TRIAL COURT ABUSED ITS DISCRETION, THEREBY COMMITTING ERROR PREJUDICIAL TO APPELLANT, IN REFUSING TO GRANT SEPARATE TRIALS ON THE TWO COUNTS OF HIS INDICTMENT. Appellant contends the trial court erred in denying his motion for separation of counts involving two incidents which occurred on January 20, 1989 and February 4, 1989. Specifically, appellant argues the cumulative effect of the evidence presented at trial resulted in confusion of the jury and prejudice. Appellant's argument lacks merit. Crim. R. 8(A) establishes the standard for joining offenses and provides: Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions con- - 6 - nected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. We note at the outset that the trial court's joinder was permissible pursuant to Crim. R. 8(A). Each of the incidents involve the appellant's felonious assault of police officers with a gun. As such, they involve offenses of "the same or similar character" and "are based on two or more acts or trans- actions connected together." Further, the fact that the two incidents were separated by approximately two weeks does not by itself prevent joinder. Joinder of offenses is favored because it fosters judicial economy and conserves resources by avoiding duplication inherent in multiple trials. Furthermore, it minimizes the possibility of incongruous results that can occur in successive trials before different juries. State v. Hamblin (1988), 37 Ohio St. 3d 153, 157-58; State v. Dunkins (1983), 10 Ohio App. 3d 72. A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges has the burden of affirmatively establishing that his rights were prejudiced and that the trial court abused its discretion in refusing to separate the charges for trial. State v. Torres (1981), 66 Ohio St. 2d 340. Appellant's fundamental argument is that he was denied a fair trial as a result of the cumulative effect of the evidence. We find no merit in this claim because a jury is believed capable - 7 - of segregating the proof of multiple charges when the evidence as to each of the charges is uncomplicated. Torres, supra, at 343. Further, this court has affirmed convictions which have been challenged because of the joinder of charges where the evidence was "direct and uncomplicated enough to allow the jury to segre- gate the proof." State v. Gilbert (Feb. 11, 1982), Cuyahoga App. No. 43671, unreported, at p. 4. The evidence presented by the state in this case was direct and uncomplicated as well as being presented in a simple and distinct manner so as to permit the jury to segregate the proof. Therefore, appellant was not prejudiced by the court's trial of both charges together. Thus, we conclude the trial court did not abuse its discretion in overruling appellant's motion for separation of counts. Appellant's first assignment of error is without merit and is overruled. Appellant's second assignment of error provides: APPELLANT, ERNEST GILBERT, DID NOT RECEIVE EFFEC- TIVE ASSISTANCE OF COUNSEL IN THAT WITNESSES MADE KNOWN TO COUNSEL BY MR. GILBERT, WHOSE TESTIMONY WOULD HAVE BENEFITED HIM, WERE NOT CALLED TO TESTIFY ON HIS BEHALF. Appellant argues that he was denied effective assistance of counsel by his counsel's failure to subpoena potential witnesses whose testimony would have supported his innocence. Appellant's argument lacks merit. - 8 - In order to substantiate a claim of ineffective assistance of counsel, the appellant must demonstrate that his counsel deprived him of a fair trial. The appellant must demonstrate that: (1) defense counsel's performance at trial was seriously flawed and deficient; and (2) the result of the trial would have been different if defense counsel had provided proper repre- sentation at trial. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St. 3d 136. In evaluating defense counsel's performance, a reviewing court initially presumes that duly licensed counsel performed competently. State v. Lytle (1976), 48 Ohio St. 2d 391, 397. Further, a reviewing court must accord deference to counsel's strategic choices and tactical decisions without the benefit of hindsight. Strickland v. Washington, supra, at 689-90. In his brief on appeal the appellant contends he was denied effective assistance of counsel by his counsel's failure to sub- poena Rose Bradley and four character witnesses. Apparently, Ms. Bradley could have provided an alibi for the other individual identified by the police as the second party involved in the January 20, 1989 incident (See Transcript, p. 602). We note that an attorney's failure to subpoena witnesses is within the realm of "trial tactics" and absent a showing of prejudice does not deny a defendant effective assistance of counsel. State v. Hunt (1984), 20 Ohio App. 3d 310. - 9 - We are not persuaded that the appellant was prejudiced by defense counsel's failure to subpoena Ms. Bradley. Although Ms. Bradley's testimony may have been crucial in the defense of the other individual who was involved in the January 20, 1989 inci- dent, the same is not true for the defense of the appellant. We are not persuaded that the result of appellant's trial would probably have been different had Ms. Bradley testified. Accordingly, we reject appellant's claim that he was denied effective assistance by counsel's failure to subpoena Ms. Brad- ley. Similarly, we reject appellant's claim that he was denied effective assistance by counsel's failure to call character witnesses. Review of the transcript reveals that Detective Char- chenko and Officer Descisio positively identified the appellant as the suspect who had engaged in a shootout with Detective Charchenko on January 20, 1989. In addition, Kim Tatum testified that she witnessed the appellant fleeing the scene of the shootout. As to the second count of the indictment concerning the February 4, 1989 incident, Officer Barrow testified that the appellant drew a gun and pointed it directly at him. Additionally, the police recovered a .38 caliber gun from the appellant surrendered and subsequent tests established that the gun was operable. Furthermore, it was determined that the nine millimeter shell casings found at each scene were fired by the same gun. - 10 - In light of the substantial evidence marshalled against the appellant, we are not persuaded that the result of appellant's trial would probably have been different had the character wit- nesses testified. Accordingly, we reject appellant's claim and find that he was not prejudiced by counsel's failure to call character witnesses. Appellant's second assignment of error is without merit and is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas 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. BLACKMON, J. HARPER, J., CONCUR. PRESIDING JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .