COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59952 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : VERNON C. WRIGHT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-240066. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edward S. Wade, Jr., Esq. 75 Public Square Building Suite 1210 Cleveland, OH 44113 -2- MATIA, C.J.: Plaintiff-appellant, Vernon Wright, appeals from his conviction for the offenses of aggravated robbery, kidnapping and felonious assault. The appellant, through his appeal, raises the issues of manifest weight of the evidence, ineffective assistance of counsel and prosecutorial misconduct. The appellant's appeal is not well taken. I. THE FACTS A. THE ROBBERY OF JOHN ROSS On May 25, 1989, John Ross exited the Society National Bank located on East 150th Street, Cleveland, Ohio and was attempting to enter his automobile when approached by a female. The female complained about automobile trouble and requested John Ross for a ride to a nearby service station. Upon entering the automobile, the female grabbed the ignition keys from John Ross after which a male, who was not the appellant, entered the automobile and announced, "This is a robbery, I want all your money." The male proceeded to rob John Ross of his personal effects which included money, credit cards and a bank card. The male proceeded to drive John Ross' automobile down East 149th whereupon the appellant, with a beer bottle in his possession, entered the automobile. The appellant then began to strike John Ross in the head with the beer bottle. John Ross was removed from the automobile, further beaten and kicked and finally placed in the trunk of his own automobile. The Cleveland Police, however, did manage to rescue John Ross from the trunk of -3- the automobile and the appellant, along with the additional male and female, were immediately arrested. B. THE INDICTMENT On August 23, 1989, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of kidnapping in violation of R.C. 2905.01, one count of aggravated robbery in violation of R.C. 2911.01 and one count of felonious assault in violation of R.C. 2903.11. C. THE ARRAIGNMENT On August 29, 1989, the appellant was arraigned whereupon a plea of not guilty was entered to all three counts of the indictment. D. THE JURY TRIAL On January 16, 1990, a jury trial was commenced with regard to the three counts of the indictment. On January 19, 1990, the jury found the appellant guilty of one count of kidnapping, guilty of one count of aggravated robbery and also guilty of one count of felonious assault. E. THE SENTENCE OF THE TRIAL COURT On February 7, 1990, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio for a term of ten years to twenty-five years with regard to the offense of kidnapping, a term of incarceration of ten years to twenty-five years with regard to the offense of aggravated robbery and a term of incarceration of eight years to fifteen years with regard to the offense of felonious assault. -4- In addition, the trial court further ordered that the terms of incarceration run consecutive to each other. F. THE DELAYED APPEAL On June 20, 1990, this court granted the appellant leave to file a delayed appeal pursuant to App. R. 5(A). II. THE FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: "THE VERDICT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. A. ISSUE RAISED: CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE The appellant, in his initial assignment of error, argues that he was improperly convicted of the offenses of kidnapping, aggravated robbery and felonious assault. Specifically, the appellant argues that the State of Ohio failed to produce sufficient evidence at trial to support the appellant's conviction. In addition, the appellant argues that his conviction was against the manifest weight of the evidence. The appellant's first assignment of error is not well taken. B. ELEMENTS OF OFFENSE OF KIDNAPPING R.C. 2905.01, which defines the offense of kidnapping, provides that: "(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: -5- "(1) To hold for ransom, or as a shield or hostage; "(2) To facilitate the commission of any felony or flight thereafter; "(3) To terrorize, or to inflict serious physical harm on the victim or another; "(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; "(5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority. "(B) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall knowingly do any of the following, under circumstances which create a substantial risk of serious physical harm to the victim: "(1) Remove another from the place where he is found; "(2) Restrain another of his liberty; "(3) Hold another in a condition of involuntary servitude; ***" C. ELEMENTS OF OFFENSE OF AGGRAVATED ROBBERY R.C. 2911.01, which defines the offense of aggravated robbery, provides that: "(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: "(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; -6- "(2) Inflict, or attempt to inflict, serious physical harm on another. ***" D. ELEMENTS OF OFFENSE OF FELONIOUS ASSAULT R.C. 2903.11, which defines the offense of felonious assault, provides that: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. ***" E. STANDARD OF REVIEW FOR ARGUMENT OF MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE The weight of the evidence adduced at trial and the credibility of all witnesses are primarily a matter for consideration by the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 231. An appellate court cannot reverse the verdict of the trier of fact where there is substantial and credible evidence upon which the trier of fact could reasonably conclude that all of the elements of the charged offenses have been proven beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St. 2d 169. F. APPELLANT'S CONVICTION WAS NOT AGAINST THE MANIFEST WEIGHT OR INSUFFICIENT A review of the evidence and testimony adduced at trial demonstrates that the appellant's conviction for the offenses of kidnapping, aggravated robbery and felonious assault was supported by substantial credible evidence. The evidence and -7- testimony adduced at trial clearly demonstrates that the appellant actively participated in the kidnapping, aggravated robbery and the felonious assault of John Ross. Further review of the record shows that the identification of the appellant by John Ross, the victim, was not suggestive or prejudicial. The identification of the appellant was made with some reasonable degree of certainty. Neil v. Biggers (1972), 409 U.S. 188; State v. Madison (1980), 64 Ohio St. 2d 322; State v. Graves (June 1, 1989), Cuyahoga App. No. 55492, unreported. In addition, viewing the evidence adduced at trial in a light most favorable to the prosecution results in the finding that a rational trier of fact could have found all of the essential elements of the offenses of kidnapping, aggravated robbery and felonious assault. Jackson v. Virginia (1979), 443 U.S. 307; State v. Bridgeman (1978), 55 Ohio St. 2d 261. Thus, the appellant's conviction for the offenses of kidnapping, aggravated robbery and felonious assault was not against the manifest weight of the evidence and was sufficient as a matter of law. The appellant's first assignment of error is not well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION." -8- A. ISSUE RAISED: APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL The appellant, in his second assignment of error, argues that he was denied effective assistance of counsel during the course of trial. Specifically, the appellant argues that he was denied effective assistance of counsel as a result of defense counsel's failure to file the following motions: 1) motion for voir dire of the identification witness; 2) motion to require the state to reveal any agreement entered into between the state and any prosecution witness; and 3) motions to require the election of counts for prosecution. The appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL In order to demonstrate a claim of ineffective assistance of counsel, the appellant must document that the performance of his defense counsel was seriously flawed and deficient and that the result of the appellant's trial would have been different had defense counsel provided proper legal representation. Additionally, the appellant must affirmatively demonstrate that he was prejudiced and denied a fair trial as a result of the conduct of defense counsel. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. This court, when reviewing a claim of ineffective assistance of counsel, must presume that a properly licensed attorney has executed his legal duties in an ethical and competent manner. -9- State v. Smith (1985), 17 Ohio St. 3d 98; Vaughan v. Maxwell (1965), 2 Ohio St. 2d 299. This court must also accord deference to defense counsel's strategic choices made prior to and during the course of trial and cannot examine the strategic choices of defense counsel through hindsight. Strickland v. Washington, supra. C. NEED NOT ALWAYS ADDRESS FIRST PRONG OF STRICKLAND TEST The Supreme Court of Ohio established in State v. Bradley (1989), 42 Ohio St. 3d 136, however, that an initial examination of the performance prong of the Strickland test is not necessary where an appellant cannot demonstrate the prejudicial effect of defense counsel's alleged misconduct. "Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. 'An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981).' Strickland, supra, at 691. To warrant reversal, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, supra, at 694. *** "*** we note Strickland's admonition that it might not always be necessary to engage in an analysis of both counsel's effectiveness and the prejudicial impact of any of counsel's errors: "'Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there -10- is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure the ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.'" Id. at 142. D. APPELLANT HAS FAILED TO DEMONSTRATE PREJUDICE WHICH RESULTED FROM CONDUCT OF DEFENSE COUNSEL A review of the record before this court fails to disclose that the appellant was prejudiced as a result of the legal representation as provided by defense counsel prior to and during the course of trial. The failure of defense counsel to file a motion for voir dire of the identification witness (the victim) or the failure to file a motion to require the state to reveal any agreement entered into between the state and prosecution witness did not effect the outcome of the appellant's trial. In addition, the offenses of kidnapping, aggravated robbery and felonious assault were not allied offenses of similar import in the case sub judice since each offense was committed separate an apart from each other and did not flow from the same conduct. State v. Blankenship (1988), 38 Ohio St. 3d 116; State v. McKinley (1986), 24 Ohio St. 3d 208. -11- Thus, pursuant to the application of Bradley, this court need not address the issue of whether the conduct of defense counsel was flawed and deficient. The failure of the appellant to demonstrate any prejudice as a result of the conduct of defense counsel automatically results in the failure of the claim of ineffective assistance of counsel. The appellant's second assignment of error is not well taken. IV. THE THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: "PROSECUTORIAL MISCONDUCT." A. ISSUE RAISED: PROSECUTORIAL MISCONDUCT DURING TRIAL The appellant, in his third assignment of error, argues that he was denied a fair trial as a result of prosecutorial misconduct which occurred during the course of trial. Specifically, the appellant argues that the cross-examination of the appellant's mother by the prosecutor resulted in prejudicial error which requires a reversal of the appellant's conviction. The appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF PROSECUTORIAL MISCONDUCT The conduct of a prosecutor during the course of trial does not constitute reversible error unless the appellant can demonstrate prejudicial harm. State v. DePew (1988), 38 Ohio St. 3d 275. -12- C. CLAIM OF PROSECUTORIAL MISCONDUCT In the case sub judice, the following cross-examination of the appellant's mother forms the basis of the claim of prosecutorial misconduct: "BY MR. MASON: "Q.I just asked you recently if you knew whether or not Vernon was on welfare back in 1979 and 1980. "A.I told you no. "THE COURT: Is it no you don't know? "THE WITNESS: Not to my knowledge. I didn't know he is on food stamps, your Honor. "THE COURT: All right, she didn't know he was. "Q.You didn't know he was? "A.I said not to my knowledge was he on welfare or getting food stamps. "THE COURT: So she doesn't have any knowledge. "Q.But he was living with you at that time? "A.That's right. "Q.And your husband was working at that time? "A.Yes. "Q.Earning income? "A.No. "Q.Were you on welfare at all at that time? "A.No. -13- "Q.So then if I show you -- "MS. SMITH: Objection. "THE COURT: She doesn't know whether he was on welfare, so, it wouldn't do any good. "MR. MASON: Nothing further." D. CONDUCT OF PROSECUTOR DID NOT PREJUDICE THE APPELLANT A review of the cross-examination of the appellant's mother by the prosecutor fails to disclose the existence of any prejudicial error. The witness, although examined as to the appellant's reliance on the welfare system, stated that she had no knowledge of welfare assistance which was provided to the appellant. In addition, this testimony did not establish or reinforce the theory that the appellant was actively receiving welfare assistance. Clearly, no prejudice befell the appellant as a result of this testimony. Cf. State v. Williams (1983), 6 Ohio St. 3d 281; State v. Collier (1983), 12 Ohio App. 3d 115. Thus, the appellant's third assignment of error is not well taken. Judgment affirmed. -14- 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. DYKE, J. and BLACKMON, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .