COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60604 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CLIFFORD C. HOLT : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-255249 JUDGMENT: Affirmed in Part, Reversed in Part, and Remanded for Resentencing. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 2000 Standard Building BRIAN R. McGRAW, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Clifford Holt, was indicted by the Cuyahoga County Grand Jury on July 13, 1990 on a seven-count indictment. Counts one through three charged appellant with Aggravated Robbery, in violation of R.C. 2911.01 and carried firearm and aggravated felony specifications. Appellant was charged with violating R.C. 2925.21, Theft of Drugs, under counts four and five. Count six charged that appellant violated R.C. 2923.13, Having Weapon While Under Disability, and carried firearm and violence specifications. Count seven charged appellant with Possession of Criminal Tools, R.C. 2923.24, and carried a violence specification. Appellant pled not guilty at his arraignment. Trial by jury commenced on August 14, 1990. The jury found appellant guilty of all counts of the indictment. The trial court subsequently sentenced appellant as follows: to three (3) terms of twelve (12) years actual to twenty-five (25) years plus three terms of three (3) years actual incarceration for the firearm specification on counts one, two and three; to two (2) terms of five (5) years actual to twenty-five (25) years on counts four and five; to a term of two (2) years to five (5) years plus three (3) years actual incarceration for the firearm specification on count six; and to a term of two (2) years on count seven. All sentences were to run concurrently except for the four (4) terms of three (3) years actual incarceration for the firearm specifications which ran concurrent to one another but prior to and consecutive with the remaining sentences. - 3 - Appellant appeals his conviction and sentence. A careful review of the record compels affirmance in part, reversal in part and remanding for a new trial. I. The seven-count indictment against appellant stemmed from an incident at French's Pharmacy ("French's") at 26598 Lake Shore Boulevard, Euclid, Ohio on April 12, 1990. On that date, appellant and Wayne Taylor robbed the store. Mia Kovalsky was employed by French's as the store front manager. She opened the store on the date in question at the normal hour of 9:00 a.m. and proceeded with her normal morning routine. She was the only employee present when a black male who wore a leather jacket and leather hat, later identified as Taylor, entered the store between 10:45 a.m. and 10:50 a.m., looked around in the back, purchased a Cleveland Plain Dealer and exited the store. Approximately five minutes later, Taylor, a man in a postal uniform, later identified as appellant, and the owner of French's, Cheh Lin, arrived in the store almost simultaneously. A customer, Val Ogrin, also entered French's without Kovalsky's knowledge. Appellant approached Lin with a small, dark gun at the back of the pharmacy and ordered him along with Ogrin to the ground at gunpoint. Ogrin's wallet, containing $150 to $180 was removed from his possession at some point. Kovalsky was working on the floor of the store when she heard noise from the pharmacy which was located in the back. She discovered that the man in the - 4 - postal uniform, appellant, pointed a gun at Lin. Lin was then instructed to call Kovalsky to join them. She heard the call but ignored the request because she was aware of a robbery in progress and wanted to stall for time. She then pressed the security alarm button which was located underneath the front counter. Taylor informed Kovalsky that a "stick up" was in progress and she was escorted to the back of the store. She was placed on the floor, and tied up with duct tape. Her engagement and wedding rings and another ring were then removed from her hand. Kovalsky recalled that appellant carried a gun continuously. Appellant specifically asked Lin where Dilaudid was stored to which Lin pointed to a drawer labeled "D". The drawer contained both Dilaudid and Demerol, both dangerous drugs in Lin's opinion. Appellant emptied the contents of the drawer into a bag. Appellant then escorted Lin to the front of the store to the cash register. Lin opened the cash register and appellant withdrew $150 to $200 from it and ordered Lin to hand over the money he had in his pocket which totalled approximately $50. A police officer for the City of Euclid, Thomas Hoinski, heard a broadcast that an alarm sounded at French's on April 12, 1990. He responded to the call and parked his traffic vehicle in a parking lot located across from French's. He observed the appellant in his postal uniform exit the store with a postal bag and then Taylor about five seconds later; both men proceeded to a - 5 - back parking lot. Hoinski requested back up and then moved his vehicle so that it blocked the exit of the parking lot. Hoinski continued to observe appellant and Taylor as they approached a vehicle. He and other Euclid police officers moved in and arrested appellant and Taylor. Officer John Drehuse removed a handgun from the waistband of appellant. Lin, Kovalsky and Ogrin identified the weapon as the one used in the robbery. A search of the vehicle in which Taylor sat prior to his arrest, and of appellant and Taylor further revealed the following items: four Plain Dealers dated April 12, 1990; Kovalsky's three rings; money taken from French's, Ogrin and Lin; a roll of silver duct tape; one bottle of Dilaudid; one bottle of Demerol. In the meantime, Officer Ron Sebusch freed Lin, Kovalsky and Ogrin from the back of French's. The gun removed from appellant's waistband did not contain any ammunition. However, Detective Ray Jorz test fired the weapon with positive results. Appellant testified on his own behalf. On April 12, 1990, appellant was high on crack cocaine. He needed money to either purchase more cocaine or to pay his cocaine-related "street" debt of about $1500. Taylor too owed a "street" debt of about $800. Appellant and Taylor thus decided to commit the offense of robbery to reduce the debt. Taylor suggested that they use a fake gun, a rusty pistol in his possession. Appellant was afraid that a rusty pistol would fool no one. They subsequently chose - 6 - to use the weapon which had neither a clip nor bullets. Appellant and Taylor disguised themselves as best they could and committed the offense in French's. Appellant's first assignment of error provides: "I. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY AS TO THE DEFINITION OF THE ELEMENT OF DANGEROUS DRUG, PURSUANT TO R.C. 2925.21 THEREBY DEPRIVING THE APPELLANT HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION." Appellant contends that it was necessary for the state to prove theft of a dangerous drug in order for the jury to find him guilty of R.C. 2925.21. He argues that the trial court's error in failing to instruct the jury as to the definition of dangerous drug precluded the jury from legally returning a guilty verdict. It is well recognized that absent plain error, a party may not assign as error the trial court's failure to give an instruction to the jury unless the party specifically sought an instruction, objected when it was refused, and noted the grounds for that objection. Crim. R. 30 and Crim. R. 52(B). State v. Lockett (1976), 49 Ohio St. 2d 48; State v. Long (1978), 53 Ohio St. 2d 91. See, also, State v. Underwood (1983), 3 Ohio St. 3d 12, paragraph one of the syllabus. Plain error is only recognized "under exceptional circumstances and to prevent a manifest miscarriage of justice." Long, supra, paragraph three of the syllabus. However, a court's failure to instruct on an essential element of the offense may be recognized as plain error. State v. Bridgeman (1977), 51 Ohio App. 2d 105, 113. - 7 - Initially, this court notes that appellant neither requested an instruction on the definition of dangerous drug as to counts four and five nor objected to its omission. Thus, appellant's assignment of error is waived absent a demonstration of plain error. Appellant was charged with two counts of violating R.C. 2925.21(C), which reads as follows: "(C) No person shall obtain any dangerous drug by attempting or committing a theft offense as defined in section 2913.01 of the Revised Code and at the time of such attempt or offense or in fleeing immediately after such attempt or offense 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, or inflict or attempt to inflict serious physical harm on another." Dangerous drug is defined in pertinent part as: "(1) Any drug which *** may be dispensed only upon a prescription; "(2) Any drug which contains a schedule V controlled substance ***; "(3) Any drug intended for administration by injection into the human body other than through a natural orifice of the human body." R.C. 2925.01(C); R.C. 4729.02. The trial court instructed the jury as follows as to the offense of theft of drugs: "The charge of theft of drugs is defined in Ohio Revised Code 2925.21. No person shall obtain any dangerous drug by attempting or committing a theft offense, as defined in section 2913.01 of the Revised code, and at the time of such attempt or offense or in fleeing immediately after such attempt or offense 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 or inflict or attempt to inflict serious harm to another -- on another, rather. - 8 - *** "One, obtain any dangerous drug; two, by attempting or committing a theft offense as defined in section 2913.01; 3A, at the time of such attempt or offense or in fleeing immediately after such attempt or offense have a deadly weapon or dangerous ordnance as defined in section 2923.11 on or about his person or under his control." The evidence introduced at trial clearly supports the jury's finding that Dilaudid and Demerol are dangerous drugs. Lin, the owner of and pharmicist at French's, testified that both Dilaudid and Demerol are narcotic analgesics which can lead to death if taken in excessive dosages. They are also popular on the streets and used by drug addicts. In addition, the Dilaudid and Demerol were not over-the-counter medications as they were stored in drawers in the pharmacy. Therefore, this court fails to find the presence of plain error as we recognize no manifest miscarriage of justice. Appellant's first assignment of error and his first pro se assignment of error are overruled. III. Appellant, in his second pro se assignment of error, asserts that: "II. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO OBJECT TO THE JURY INSTRUCTIONS." Appellant contends that his trial counsel provided ineffective assistance by neglecting to object to the jury charge in two respects. First, he claims that the trial court reduced the state's burden of proof as it related to the firearm - 9 - specification, but counsel offered no objection. Second, appellant refers to counsel's failure to object to the trial court's failure to provide the definition of dangerous drug to the jury. 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.)" In the instant case, appellant was not denied the effective assistance of counsel. His counsel's performance failed to either prejudice appellant or fall below an objective standard of reasonable representation. First, as this court decided in appellant's first assignment of error, the trial court did not commit plain error in not defining "dangerous drug" in its instruction on the offense of theft of drugs. Counsel's failure to object to the instructions as given was not, therefore, prejudicial to appellant. Second, in addition to twice defining the term "reasonable doubt", a portion of the jury charge reads as follows: "Now, a plea of not guilty as so tendered by the accused has, as a matter of law, the effect of placing upon the shoulders of the State of Ohio the burden of proving beyond a reasonable doubt the existence of each and every material allegation and averment of the indictment and each count contained therein. *** - 10 - "When each and every element of the crime or crimes charged against the defendant has not been proven beyond a reasonable doubt by the State, the defendant shall be acquitted. "However, when the State of Ohio has proven each and every element of the crime charged against the defendant, then he shall be found guilty. *** "Now, ladies and gentlemen, the charges contained in each count of the indictment constitute separate and distinct matters. "The defendant may be found guilty of an offense charged in one or more of the counts and not guilty of an offense or offenses charged in the other counts. "The rules of law which are given to you in these instructions apply to each count of the indictment unless it is otherwise specifically stated by the Court." Counsel's performance thus did not fall below an objective standard of reasonable representation by not objecting to the trial court's instruction on the state's burden of proof. The trial court exhaustively explained the concept of reasonable doubt and the state's burden of proof in the charge. Accordingly, appellant's second pro se assignment of error is overruled. IV. Appellant asserts in his second assignment of error and in his first pro se assignment of error that: "II. THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT- APPELLANT TO THREE PENALTIES PURSUANT TO R.C. 2929.71. "I. APPELLANT'S CONVICTIONS AND SENTENCES ON THE FIREARM SPECIFICATIONS ARE ILLEGAL AS A MATTER OF LAW." - 11 - Appellant first contends that regardless of any error in the instructions to the jury regarding the state's burden of proof as to the firearm specification, the state failed to satisfy the necessary burden of proof. He then avers that even if the state met this burden, he was improperly sentenced to three (3) concurrent terms of three (3) years actual incarceration for the firearm specifications attached to the aggravated robbery charges. Appellant argues that since the three aggravated robberies were part of the same act or transaction, he could only be sentenced to one three year enhancement. A mandatory three year sentence is imposed when a defendant commits a felony while in possession of a firearm or having a firearm under his control. R.C. 2929.71. In State v. Murphy (1990), 49 Ohio St. 3d 206, the Supreme Court of Ohio stated: "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, modified.)" The defendant in Murphy entered a store and instructed an employee to give him all the money available. He then removed a gun from his shirt in which it was wrapped and told the employee he would be killed if he refused to hand over the money. The gun was described by two of the state's witnesses as a "one or two- shot silver or chrome Derringer". Murphy, supra, 207-208. The court affirmed defendant's firearm specification and found that, - 12 - under the totality of the circumstances, there was a sufficient indicia of reliability. 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. Moreover, the weight of the evidence and credibility of witnesses are primarily issues to be determined by the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In the case sub judice, we find that under the totality of the circumstances, there was sufficient evidence beyond a reasonable doubt to establish the operability of appellant's gun pursuant to R.C. 2929.71(A) and R.C. 2923.11. Appellant acknowledged that he carried an unloaded old rusty gun but denied that he ever removed the gun from his waistband. Kovalsky, however, testified that appellant held a small, dark silver or dark gray gun when he stood in the pharmacy area of the store. Appellant escorted her to the back of the store with the gun at her back, and instructed her to get down on the floor. Lin testified that while he was preparing a receipt for his customer, Ogrin, appellant approached him. Appellant pointed a small, dark gun at Lin and instructed him to get down on the floor. Lin did not understand what appellant was doing, so he looked at appellant, who then pointed the gun at Lin again and said, "don't do anything foolish". Ogrin testified that he heard something, - 13 - turned and found appellant pointing a gun at him. He was likewise ordered to lay down on the floor at gunpoint. Ogrin described the gun as gray in color and that it looked like a semi-automatic. This court previously determined that the distinction between implicit and explicit harm is insignificant, State v. Mann (Nov. 7, 1991), Cuyahoga App. No. 59046, unreported, and thus, here, we hold that the state presented sufficient evidence to find the gun operable. The next issue presented for review is whether the three convictions were part of the same act or transaction under R.C. 2929.71(B). This statute provides in pertinent part: "(A) The court shall impose a term of actual incarceration of three years in addition to *** an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if both of the following apply: "(1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code; "(2) The offender is also convicted of, or pleads guilty to a specification charging him with having a firearm on or about his person or under his control while committing the felony. *** "(B) *** If any of the felonies were committed as part of the same act or transaction, only one three- year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, and prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code." A defendant "may only be sentenced to one three-year term pursuant to R.C. 2929.71 in addition to the sentences for *** aggravated robberies" if he is charged and convicted of multiple - 14 - counts of aggravated robbery stemming from the same act or transaction. State v. Hughley (1984), 20 Ohio App. 3d 77, paragraph two of the syllabus; see, State v. Moore (1984), 20 Ohio App. 3d 75, paragraph one of the syllabus. The phrase "same act or transaction" is "sufficiently flexible to comprehend any number of criminal offenses so long as such offenses have a logical relationship and are committed within a continuous time sequence". State v. Carpenter (adopting the Second District's definition in State v. Fudge (Mar. 29, 1984), Clark App. No. 1873, unreported); see, also, State v. Patterson (Nov. 13, 1986), Cuyahoga App. No. 51231, unreported. Consideration also should be given to a defendant's motivation. Patterson, supra. Here, the three offenses of aggravated robbery were logically related and committed within a continuous time sequence. This court also notes that the offense of having a weapon under a disability was also logically related and committed within the same continuous time sequence as the aggravated robberies. The trial court thus erred in sentencing appellant to four separate three year terms of actual incarceration rather than to one separate term. Appellant's second assignment of error and his first pro se assignment of error are sustained. V. Appellant, in his third pro se assignment of error, contends that: "III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENSE COUNSEL'S MOTION FOR - 15 - A PSYCHIATRIC EVALUATION OF DEFENDANT'S SANITY AT THE TIME OF THE OFFENSE AND AT THE TIME OF TRIAL." Appellant's trial counsel requested on the first two days of trial that appellant be referred for a psychiatric examination concerning sanity at the time of the robberies. Appellant argues that the trial court abused its discretion in denying the psychiatric examination. Appellant's counsel made it perfectly clear that he felt appellant was competent to stand trial. Consequently, the applicable statute at issue here is R.C. 2945.39, which reads in pertinent part: "(A) If a defendant enters a plea of not guilty by reason of insanity, the court may order one or more, but not more than three, evaluations of the defendant's mental condition at the time of the commission of the offense. ***" (Emphasis added.) Appellant pled not guilty at his arraignment. He never sought to change the plea to not guilty by reason of insanity. The statute was not, therefore, triggered and appellant cannot now invoke it. Moreover, the record reflects that the trial court did not treat appellant's alleged mental problems lightly. The court questioned appellant's counsel and the arresting officers about the appellant's mental condition at the time of arrest. In light of this evidence and the lateness of appellant's request, we find no abuse of discretion in the trial court's decision. Appellant's third pro se assignment of error is overruled. - 16 - Judgment affirmed in part, reversed in part, and remanded for resentencing. - 17 - This cause is affirmed in part, reversed in part, and remanded for resentencing. It is, therefore, considered that each party absorb their own costs. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JAMES D. SWEENEY, J., CONCURS; DYKE, P.J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER 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. .