COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59906 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RONALD JOHNSON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 27, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-228,316 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Robert M. Ingersoll Assistant Public Defender The Marion Building 1276 West Third Street Room 307 Cleveland, Ohio 44113-1569 -2- NAHRA, P.J.: Ronald Johnson appeals his conviction of aggravated robbery with gun and violence specifications. For the reasons set forth below, we affirm. On May 27, 1988, at about 4:30 p.m., Renee Croskey and Wilhemina Harris were robbed at gunpoint. They were sitting in Harris' car at an Ameritrust bank located at E. 131st and Miles in Cleveland. The robber threatened them with a gun, and took their purses and some jewelry. Both Harris and Croskey testified at trial that they had gotten a good look at the robber; that he was right at Harris' car door; and it was broad daylight. Harris testified that she looked at the robber for seven or eight minutes. About a month later, Harris identified appellant as the robber from an array of photographs. The evening of the robbery, Renee Croskey, David Harris, Wilhemina's son, and Alja Burns went looking for the robber. Croskey testified that they came upon him later, and that he had Wilhemina Harris' checkbook or billfold in his hand. Croskey testified that this item was turned over to police. Harris testified that it was the only item she recovered from the robbery. Croskey and Harris both testified that appellant admitted to robbing Croskey earlier that day. They also testified that he had a small handgun. David Harris testified that he threw the gun over a fence so it would not go off. He testified that he and Burns held appellant until police arrived, and that they did -3- not beat or shoot him. Tests performed on Croskey, Harris and Burns indicated that they had not held or fired a handgun. The handgun was recovered from behind the fence, and testing indicated that it was operable. Appellant, his mother, and a neighbor all testified that appellant washed windows with his mother on the day of the robbery. Appellant and his mother also testified that appellant left home at around 5:00 p.m., and that he lived not far from the scene of the robbery. Appellant testified that he went to visit friends after leaving home. His friend, Robert Bryant, testified that he saw appellant at 6:00 p.m. on that day. Appellant testified that when David Harris, Renee Croskey and Alja Burns stopped him, Croskey told Harris and Burns that appellant was not the one who robbed him. Appellant stated that Harris and Burns stopped him anyway, then kidnapped, beat and shot him. Police officers who arrived at the scene testified that the group appeared to be fighting, and that appellant had abrasions and a gunshot wound. Appellant was indicted on two counts of aggravated robbery with five aggravated felony specifications and a gun specification. After a bench trial, he was found guilty and sentenced. Appellant brought this delayed appeal by leave of court. I. Appellant's first assignment of error reads as follows: -4- RONALD JOHNSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, BY TRIAL COUNSEL'S FAILURE TO INVESTIGATE HIS MATTER FULLY. In State v. Bradley (1989), 42 Ohio St. 3d 136, certiorari denied (1990), U.S. , 110 S. Ct. 3258, paragraphs two and three of the syllabus, the Ohio Supreme Court held as follows: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O. 3d 495, 358 N.E.2d 623; Strickland v. Washington [1983], 466 U.S. 668, followed.) To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Appellant claims that he was denied effective assistance of counsel because defense counsel failed to file a motion to suppress Ms. Harris' identification of appellant from a photo array, and that the array was improper. However, appellant was also identified by the other robbery victim, Renee Croskey. Croskey testified at trial that she got a good look at appellant; that he was only a car-width away from her during the robbery; and that the robbery occurred in broad daylight. Croskey identified appellant as the robber in person on the day of the robbery, and at trial. She also testified that appellant was holding Ms. Harris' billfold of checkbook when she saw him after the robbery. Ms. Harris testified that -5- the billfold or checkbook was the only item stolen that she got back. Croskey's testimony alone constituted substantive and probative evidence of appellant's identification as the robber, even if Ms. Harris' photo identification of appellant had been suppressed. Therefore, there was no reasonable probability that suppression of the identification would have changed the result of the trial, and appellant was not prejudiced by counsel's conduct. Appellant's first assignment of error is without merit. II. Appellant's second assignment of error reads as follows: RONALD JOHNSON'S CONVICTION FOR A FIREARM SPECIFICATION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In State v. Murphy (1990), 49 Ohio St. 3d 206, syllabus, the Ohio Supreme Court held as follows: The state must present evidence beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v. Gaines [1989], 46 Ohio St. 3d 65, 545 N.E.2d 68, modified.) A reviewing court will not reverse a verdict as against the manifest weight of the evidence where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In State v. Martin (1983), 20 Ohio -6- App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: * * * The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra at 175. Moreover, the weight of the evidence and credibility of witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In the Murphy case, see supra, the firearm specification was affirmed based on testimony that the robber pointed a gun at a store clerk and that he said he would kill the clerk if the clerk refused to give him money. Both the clerk and a customer also described the gun as a one- or two-shot silver or chrome derringer. In this case, Wilhemina Harris stated that appellant stuck the gun in her side and asked for her pocketbook. R. 16. She stated that appellant told her to shut up so he would not hurt her. Id. She described the gun as a small black revolver. R. 18. Renee Croskey testified that appellant stuck his gun in the car and asked her and Harris for their purses. R. 55. She stated that he told them that he did not want to shoot them, -7- "don't make him scared". R. 56. She described the gun as a small black and white handgun. R. 55. The Cleveland Police Department also concluded that the gun was operable. R. 166. Pursuant to State v. Murphy, see supra, the trial court reasonably concluded from substantial evidence that the gun was operable. Appellant's second assignment of error is without merit. Affirmed. -8- 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 Common Pleas 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. SPELLACY, J., and *CORRIGAN, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge John V. Corrigan, Retired, Eighth District Court of Appeals.) JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .