COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60707 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION THOMAS A. MACK : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 11, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-248539 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL J. ERTLE, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: JONATHAN N. GARVER 1404 East Ninth Street Suite 300 Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Defendant appeals from his convictions for aggravated robbery with firearm specifications. The relevant facts follow. On December 19, 1989, defendant was keeping company with Curtis Taylor, a recent acquaintance, at the Valley View Projects in Cleveland, Ohio. Taylor was selling drugs. At approximately two o'clock in the afternoon, the two men went to a nearby super- market. At the supermarket defendant spoke to Burt Green, the store's security guard, while Taylor bought some cigarettes. Thereafter, Green saw Taylor leave and saw defendant leave with another man. Taylor went home for a short time to leave some of his money and rejoined defendant at a friend's house. Taylor and defendant then decided to go to a nearby tavern, the Hotz Valley View Cafe. Defendant and Taylor entered the tavern together at approxi- mately 3:00 p.m. One other patron was there, as was the owner. Defendant and Taylor ordered some beers. After about a half- hour, while the other patron, Robert Hanna, had gone to the restroom, defendant went to the owner of the tavern, Ann Galen, who was standing behind the bar, and asked to buy a cigarette lighter. Mrs. Galen gave him the item and defendant handed her a dollar bill. Mrs. Galen then turned around to obtain change from the cash register. When she turned back toward defendant he jumped over the bar, pushed Mrs. Galen and hit her with a gun he - 3 - held in his hand. Mrs. Galen fell. Defendant then held the gun to Mrs. Galen's head and told her to get up and open the cash register. She obeyed. Defendant thereupon took all the money from the cash register. As the other patron of the tavern, Robert Hanna, emerged from the restroom, both he and Curtis Taylor were ordered by defendant to lie on the floor. When Taylor and Hanna had obeyed defendant's order, defendant bolted the front door and began to close the venetian blinds on the tavern windows. At that point, however, someone knocked on the front door. The person knocking was Richard Barnes, a regular patron of the tavern. After a few moments, defendant unbolted the door, grabbed Mr. Barnes, pulled him in, held the gun to his head and ordered him to lie on the floor with the others. Defendant then pointed the gun at each man in turn as he proceeded to take valuables from them. Mrs. Galen took this opportunity to flee upstairs where her residence was located. Defendant chased her. With defendant in pursuit, Mrs. Galen then ran downstairs and out the back door of the building to the backyard where her German Shepherd dog was tied. Defendant broke off his chase of Mrs. Galen when he saw the dog. He then went back inside the building, unbolted the front door and fled. Mr. Hanna tried to follow, but was unable to keep up with defendant, who then escaped. By this time Mrs. Galen was able to alert a neighbor to the situation but they returned too late to apprehend defendant. - 4 - A police investigation of the incident then began. Mrs. Galen told Det. Kilbane, who investigated the incident, that she had seen defendant once before in her tavern. She also knew Taylor and had spoken with him. Therefore, she told Det. Kilbane that Burt Green, the supermarket security guard, might have some information. Mr. Green was somewhat familiar with defendant's tie to the area and he gave the detective a woman's name with whom Green had seen defendant. From the woman Det. Kilbane then obtained defendant's address and interviewed him concerning the incident. Thereafter, Det. Kilbane assembled a photo array for identification purposes and presented it to Mrs. Galen, asking her if she could identify anyone in the photos. Mrs. Galen selected a photo of defendant and identified him as the man who had robbed her. Defendant was subsequently arrested. After defendant's arrest, Det. Kilbane and the county sheriff's department also conducted a police line-up for identification purposes. Defendant was placed with four other men of similar height and appearance. Mrs. Galen and Messrs. Hanna and Barnes were then each in turn asked if they could identify anyone in the line-up. Mrs. Galen and Mr. Barnes both picked defendant from the line-up as the perpetrator of the robbery. Mr. Hanna could not identify anyone from the line-up. Defendant was subsequently indicted on a four-count indictment for aggravated robbery, R.C. 2911.01. Each count - 5 - contained a firearm specification. Prior to trial defendant filed a motion to suppress identification evidence. After a hearing, the trial court overruled defendant's motion and the case then proceeded to a jury trial. The state presented the testimony of Mr. Barnes, Mrs. Galen, Mr. Hanna, Curtis Taylor, Burt Green and Det. Kilbane. Defendant presented no witnesses and did not testify. The jury found defendant guilty on all four counts as charged in the indictments. Thereafter, the trial court sentenced defendant to a term of ten to twenty-five years on each count to run consecutively and to a term of three years actual incarceration for the gun specification. Defendant filed a delayed notice of appeal from his convictions to this court presenting four assignments of error for review. Defendant's first assignment of error follows: THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS OF LAW BY DENYING HIS MOTION TO SUPPRESS EYEWITNESS IDENTIFICATION TESTIMONY. FOURTEENTH AMENDMENT TO UNITED STATES CONSTITUTION; ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. This assignment of error lacks merit. Defendant argues the witnesses who identified him prior to trial, i.e., Mrs. Galen and Mr. Barnes, had been exposed to impermissibly suggestive pretrial identification procedures and therefore his motion to suppress their identification testimony was improperly denied. This argument is unpersuasive. - 6 - Regarding pretrial identification procedures, the rule has been stated as follows: "*** each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. ***" Simmons v. United States (1968), 390 U.S. 377, 384. State v. Hill (1987), 37 Ohio App. 3d 10; see, also, Kirby v. Illinois (1972), 406 U.S. 682. The Ohio Supreme Court has also stated the following: "It is the likelihood of misidentification which violates a defendant's right to due process. *** The central question is whether under the totality of the circumstances the identification is reliable..." State v. Parker (1990), 53 Ohio St. 3d 82. The photo array in the case sub judice was not so impermis- sibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. The photo array contained five photographs. The photographs consisted of all black males of approximately the same age and facial characteristics. Det. Kilbane testified that he in no way suggested to the witnesses looking at the photo array who should be chosen from the array. Indeed, one witness, Mr. Hanna, was unable to identify defendant from the array. The mere fact that defendant's photograph was lighter in some areas than the other photographs, as defendant - 7 - argues, is not sufficient to find that the identification procedure was impermissibly suggestive. State v. Hill, supra. The court in State v. Hill, supra, stated also that relia- bility of the identification testimony is the "linchpin" in determining its admissibility. The Hill court further stated the following: The United States Supreme Court has set forth five factors that affect the reliability of an identification: "*** [T]he factors to be considered in evalu- ating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. ***" Neil v. Biggers (1972), 409 U.S. 188, 199-200. See, also, Manson, supra, at 114-116. Id. at 14. In the case sub judice, Mrs. Galen testified defendant ordered a beer from her and was in her tavern for about a half hour before the robbery occurred. Moreover, she testified she had seen the defendant in her tavern once before approximately a month before the incident when he came in to "play the lottery machine." She gave Det. Kilbane a description of the suspect prior to defendant's arrest, and picked defendant's photograph out of the photo array "without hesitation." She thereafter also picked defendant out of the police line-up as being the robber. - 8 - Mr. Barnes testified he was "no more than two feet away" from defendant when defendant "snatched" him into the tavern, that the lighting in the tavern was good, and that he "looked right in his [defendant's] face." He further testified he looked at defendant again as defendant was "taking the wallets" of the victims. He also gave a description of defendant to the police prior to defendant's arrest. Mr. Barnes also picked defendant out of the police line-up. Thus, in the case sub judice, the factors favoring reliability of these witnesses' identification testimony are substantial. State v. Parker, supra, paragraph two of the syllabus. Therefore, under the circumstances of the case sub judice, Mrs. Galen's and Mr. Barnes' identification of defendant at trial as the man who had robbed them at gunpoint had suffi- cient indicia of reliability and consequently the trial court did not err in overruling defendant's motion to suppress the identification testimony. Accordingly, defendant's first assignment of error is over- ruled. Defendant's second assignment of error follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING A PROSECUTION WITNESS TO TESTIFY THAT APPELLANT WAS INVOLVED IN TRAFFICKING DRUGS. This assignment of error also lacks merit. Defendant argues that the prosecuting attorney improperly elicited testimony from Curtis Taylor involving defendant in the - 9 - sale of drugs. Defendant contends that although he did not object to this evidence at trial, it was elicited contrary to Evid. R. 404(B) and therefore its introduction constitutes plain error on the part of the trial court. These arguments are unper- suasive. Defendant invokes evid. R. 404(B) in support of this assignment of error, however, that rule is inapplicable to the case sub judice. Evid. R. 404(B) pertains to other crimes which are "so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged." State v. Roe (1989), 41 Ohio St. 3d 18. Curtis Taylor's testimony that earlier in the day defendant and Taylor were selling drugs does not fit into any of the above- mentioned categories, hence, defendant's reliance upon Evid. R. 404(B) is misplaced. Furthermore, defendant did not object to this testimony at trial. Ordinarily, an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St. 2d 112. Defendant herein invokes Crim. R. 52(B) to overcome his failure - 10 - 1 to object to the testimony in the trial court. However, notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St. 2d 91. In the case sub judice it was the defense that asked Taylor on cross-examination what he and defendant were doing the morning of the robbery and which subsequently led to the now- objectionable testimony. Therefore, this testimony was not elicited by the prosecutor, rather, defense counsel "opened the door" to permit entrance of the testimony concerning the sale of drugs into evidence. On direct examination Taylor testified defendant robbed him of $150 at the tavern. He further stated he did not know defendant well; however, they had spent the earlier part of the day together. On cross-examination, defense counsel asked Taylor if defendant had been with him "from 1:00 or so ... until 3:00 o'clock." Taylor responded "yes." The next questions and answers followed: Q. What were you doing between 1:00 and 3:00 o'clock, Curtis? 1 Crim. R. 52(B) states as follows: (B) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. - 11 - A. Between 1:00 and 3:00 o'clock we were in the projects. Q. Selling drugs? A. Yes, sir. Thereafter, on redirect examination, the prosecutor asked Taylor if defendant was with him selling drugs; Taylor answered that defendant wasn't with him but defendant was selling drugs. No objection was made by defense counsel to this testimony. Thus, it is clear from the foregoing that plain error does not exist in the case sub judice. Defense counsel's questions "opened the door" for the admission of this testimony into evidence and defense counsel made no objection to its admission. Furthermore, the admission of improper testimony does not constitute plain error "unless, but for the error, the outcome of the trial clearly would have been otherwise." State v. Long, supra. In view of the overwhelming evidence of defendant's guilt of the crimes charged, the outcome of the trial would have been the same. State v. Williams (1983), 6 Ohio St. 3d 281. Therefore, since there was no "plain error" in the introduction of Taylor's testimony that defendant was selling drugs, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: APPELLANT'S JUDGMENT OF CONVICTION AND SENTENCE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error also lacks merit. - 12 - In State v. Martin (1983), 20 Ohio 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: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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 the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court will not reverse a verdict 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 this assignment of error, defendant focuses not on the failure of proof of the elements of the crime, but rather on the victims' identification of defendant. The defendant contends that the testimony of the state's witnesses linking him to the crime was too weak to support his convictions for the following reasons: (1) the witnesses had been exposed to suggestive - 13 - pretrial identification procedures; (2) Mr. Barnes had impaired eyesight; and (3) Taylor was a convicted drug dealer. Defendant was convicted for a violation of R.C. 2911.01, which states in pertinent part the following: 2911.01 Aggravated robbery. (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; In the case sub judice, the state presented four eyewitnesses to the crime. The evidence thus presented by the state showed the following: (1) three eyewitnesses stated the defendant came with Taylor to the tavern and four eyewitnesses stated defendant threatened them with a gun and took money and valuables from them; (2) three eyewitnesses viewed defendant at close range, two for a substantial period of time; (3) two wit- nesses had "known" defendant prior to the incident; (4) three were able to give accurate descriptions of defendant; (5) two identified defendant in the photo array and the police line-up; and (6) the one witness who could not positively identify defendant nevertheless accurately described his clothing and was placed at the scene of the robbery by the other witnesses. This court cannot say on the basis of this evidence the jury clearly lost its way and created such a manifest miscarriage of justice - 14 - that the conviction must be reversed and a new trial ordered. State v. Vasquez (1984), 18 Ohio App. 3d 92; State v. Price (1989), 52 Ohio App. 3d 49. Accordingly, defendant's third assignment of error is also overruled. Defendant's final assignment of error follows: THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES THAT RESULTED IN AN AGGREGATE MINIMUM TERM OF IMPRISONMENT WHICH EXCEEDS THE STATUTORY LIMIT SET FORTH IN SECTION 2929.41(E)(1), OHIO REV. CODE. This assignment of error has no merit. Defendant argues that by imposing a ten-year sentence on each count to run consecutively, the trial court created an aggregate minimum term of imprisonment exceeding the statutory limit as set forth in R.C. 2929.41(E)(3). R.C. 2929.41(E)(3) states as follows: (E) Consecutive terms of imprisonment imposed shall not exceed: * * * (3) An aggregate minimum term of fifteen years, when the consecutive terms imposed are for felonies other than aggravated murder or murder; However, regarding this statute, the Ohio Supreme Court has stated the following: [W]here a trial court's sentence exceeds the minimum established for consecutive terms, such judgment is not the basis of a reversible error, as the terms of former R.C. 2929.41(E)(2), now (E)(3), are self-executing, automatically operating to limit the aggregate minimum sentenc- ing term to fifteen years. *** Therefore, there is - 15 - no necessity for modification of the consecutive sentences imposed so as to limit the aggregate minimum term to fifteen years because the effects of the statutory scheme in question are self- executing. State v. White (1985), 18 Ohio St. 3d 340; see, also, State v. Silva (Feb. 11, 1991), Stark Cty. App. No. CA-8047, unreported. Accordingly, defendant's final assignment of error is also overruled. Judgment affirmed. - 16 - 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. NAHRA, P.J., and JAMES D. SWEENEY, J., CONCUR JUDGE BLANCHE KRUPANSKY 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .