COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60856 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN A. ROBINSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 11, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-255773 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES ROBERT M. INGERSOLL Cuyahoga County Prosecutor Public Defender Office 8th Floor Justice Center Room 307 Marion Building 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: John A. Robinson defendant-appellant, hereinafter Appellant timely appeals his convictions for aggravated robbery, felonious assault, and receiving stolen property. For the reasons set forth below, we affirm. This matter was tried to a jury, and the State of Ohio plaintiff-appellee, hereinafter Appellee presented five wit- nesses in its case-in-chief against Appellant. Alanna Faith was the first. She testified that on the night of June 27, 1990, at approximately 11:45 P.M., she arrived at her apartment located at 17533 Madison Avenue in Lakewood, Ohio. As she was entering, she noticed Appellant and another black male later identified as Melvin Curry. Appellant placed his arm over Curry's shoulder and the two men began to walk to the rear of the building. She observed the two males near the trash dumpster of the building. Faith testified that she was returning from a week long business trip in Washington, D.C.; she parked her car; she started to organize her things and to find her keys. As Ms. Faith was turning to get out of her car, she unlocked the door and noticed Appellant standing at the driver's side window. According to Faith's testimony, he was only inches away. Appellant opened the door and pulled Ms. Faith out of her car. Faith's testimony was that she began immediately to fight Appellant, scratching him with her fingernails, and they struggled on the ground for a brief period of time. Faith further testified that Appellant tried to pull her purse off of her shoulder while they were struggling. However, he was not -3- successful until he told her that he was not going to take the purse and Faith relaxed; Appellant then took the purse. As Appellant was getting up from the ground, he slammed Faith's head into the ground causing her to suffer a broken nose, wrist, shoulder and finger. Further, according to Faith's testimony, she sustained a concussion, a deep cut on her leg, and a knee injury that might require surgery. Faith testified in some detail regarding Appellant's appear- ance. She testified that Appellant wore a heather toned tank top, scooped at the neck with black piping, off white gym shorts, white athletic socks, black running shoes, and on his left arm was a hospital supportive brace with velcro closures. Faith was also able to describe the other man, Curry, who she testified was sitting in the driver's seat of a car that was stopped immediately behind hers. Appellant got into the car with Curry. Faith testified that the car was a four-door General Motors car that was not a Cadillac. Faith was unequivocal that Appellant was her attacker. After Appellant and the other man left the scene, Faith was assisted by neighbors and eventually went to the emergency room. The next day Faith met with Detective Fensel of the Lakewood Police Department, who assisted her with a composite drawing of Appellant. The second witness called by Appellee was William Fried, who testified that he and his wife owned a 1986 Pontiac Bonneville in June, 1990. He identified the vehicle that was recovered in the -4- instant case as the car he bought but was in his wife's name. On June 26, 1990, while making deliveries for his business, Fried parked the Pontiac Bonneville behind a building located at 4703 Broadway, however, he left the car running. When he returned, the car had been stolen. In addition, he testified that he did not give permission to anyone, including Appellant or Curry, to borrow his car. He testified also that the police recovered his car on either June 28, 1990 or June 29, 1990. The car was not extensively damaged with the exception of some garbage strewn about the car, some tampering with the radio, and some dents in the right front fender. Appellee called a witness named Joseph Mack. He testified that he was in front of his house on June 28, 1990 when two men drove up in a red Pontiac Bonneville with the same license plate as Fried's stolen car. Mack was sitting on the passenger side of his car attempting to connect an equalizer to his radio. Mack testified that Appellant was one of two men that got out of the Bonneville. Appellant crossed the street and went into Mack's car on the driver's side. According to Mack, Curry asked Mack what he was doing. When Mack told him that he was hooking up a radio, Curry asked to see the equalizer. When Mack refused, Curry pulled out a knife and told Mack that he was taking the equalizer. Afterwards, Curry asked Mack if Mack had any money. Mack told Curry no and to just take the equalizer. At this point, Mack observed Appellant returning from the backyard. When Appellant came from the backyard, he and Curry -5- took off in the Bonneville. He was able to identify the Bonneville from photographs taken and shown to him in court. Mack immediately called 911; after the police arrived, Mack was taken by the police to a garage where he identified Curry. During Mack's cross-examination, he testified that Appellant was the man who went into the backyard and not the man who actually robbed him. He also stated that Appellant was a passenger and that Curry was the person driving the Bonneville. According to Mack's testimony, Appellant did not have anything in his hands when he returned from the backyard. Appellee called David O'Reilly, a Cleveland Police officer, as a witness also. He testified that he received a radio broadcast of a robbery at knife point, with a preliminary description of two black males in a stolen car. O'Reilly and his partner went to East 65th Street and Francis where they spoke with Mr. Mack. Mack gave the officers a complete account of Appellant going in and out of the backyard, Curry robbing him with the knife, and a description of the automobile. O'Reilly received a radio broadcast from another police unit indicating that the suspect vehicle and a man fitting the robbery suspect's description were in sight. O'Reilly and his partner took Mack to the location where the car had been seen. At the location, Mack positively identified the car and Curry. Appellant was not present. O'Reilly found various items of personal property belonging to Alanna Faith. He did not find the knife. -6- The last witness called by Appellee was Detective Fensel of the Lakewood Police Department, who was doing the follow up investigation of the Faith robbery. He interviewed Ms. Faith and assisted her in developing a composite drawing of Appellant. Detective Fensel also created a photo array that included a picture of Appellant for Faith to attempt to identify Appellant. Fensel testified that Faith picked Appellant's photo from the array without hesitation. Fensel testified that the composite drawing was difficult to construct because of the detail with which Faith described him. Appellant asserts three assignments of error in support of his appeal. The first assignment of error states: JOHN ROBINSON WAS DENIED HIS RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY THE INTRODUCTION OF INADMISSIBLE OTHER ACTS EVIDENCE. The inquiry pertaining to the admissibility of "other acts" evidence involves two issues. The first is whether the evidence is properly admissible pursuant to Evid. R. 404(B). The second is whether the probative value of the "other acts" evidence outweighs any undue prejudice to Appellant if admitted. In the case of State v. Matthews (1984), 14 Ohio App. 3d 440, this court enunciated the basic legal principle of other acts evidence. Evidence of other acts is inadmissible to show the defendant's propensity or inclination to commit an offense. It is admissible to prove other relevant facts, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, unless its -7- probative value is substantially outweighed by the danger of unfair prejudice. Id. at Syllabus. Specifically, Evid. R. 404(B) states: (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, or absence of mistake or accident. In State v. Jamison (1990), 49 Ohio St. 3d 182, a recent Ohio Supreme Court case, the Ohio Supreme Court held that other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid. R. 404(B). To be admissible these other acts must tend to show by substantial proof identity or other enumerated purposes under Evid. R. 404(B). Although the standard for admissibility is strict, the other acts need not be the same as or similar to the crime charged. In the instant case, Appellant complains of the admission of witnesses, Mack and O'Reilly, testimony regarding the June 28, 1990 robbery because it was not admissible under Evid. R. 404(B) to prove identity through modus operandi. Appellant states that he was neither indicted nor tried for that robbery. Furthermore, the two robberies were not connected because they occurred on different days, on opposite sides of town, and Mack's robbery involved the use of a weapon. For these reasons, Appellant -8- asserts that O'Reilly and Mack should not have been permitted to testify extensively about Appellant's involvement in the robbery. The testimony of Mack and O'Reilly was admissible pursuant to Evid. R. 404(B). The evidence was probative as to identity and absence of mistake. Hence, we do not agree that the two robberies were not related. The same car was identified as being used in each robbery. The victims of each robbery were in or about his or her car when the robberies occurred; the robberies were less than one day apart. Thus, the evidence regarding June 28, 1990, was properly admissible under Evid. R. 404(B). The inquiry must now turn to whether the probative value of the evidence outweighed any prejudicial effect. The testimony of both Mack and O'Reilly frankly described conduct on the part of Appellant that was relatively benign. According to Mack, Appellant exited the stolen car, never said anything to him, walked into his backyard, and walked out of the backyard and got back into the stolen car. This evidence, while highly probative as to Appellant's identity and presence in the stolen car that was at the scene of the June 27, 1990 robbery, does not implicate him as a participant in the June 28, 1990 robbery and may explain why Appellant was not indicted or tried for the June 28, 1990 robbery. We are not persuaded that the phraseology of questions or collateral comments by counsel in some way implicated Appellant in the June 28, 1990 robbery. This is especially true where the trial court instructs the jury that statements by counsel are not evidence. -9- The testimony regarding the June 28, 1990 robbery was properly admitted pursuant to Evid. R. 404(B). Further, the probative value of this evidence as it pertains to identity and Appellant's presence in the stolen car that was at the scene of the robbery on June 27, 1990, outweighs any prejudice to Appellant. Consequently, the evidence was properly admitted Assignment of error one is overruled. Appellant's second assignment of error states: JOHN ROBINSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY HIS COUNSEL'S FAILURE TO FILE AND ARGUE THE APPROPRIATE PRETRIAL MOTIONS AND BY HIS COUNSEL'S FAILURE TO OBJECT TO IRRELEVANT, PREJUDICIAL TESTIMONY. A. TRIAL COUNSEL FAILED TO OBJECT TO THE INTRODUCTION OF REPEATED AND WHOLLY IMPROPER OTHER ACTS EVIDENCE. For the reasons enumerated in assignment of error one, this sub-issue is not persuasive. The other acts evidence was properly admitted pursuant to 404(B) and thus not objectionable. B. TRIAL COUNSEL FAILED TO REQUEST THE APPROPRIATE LIMITING INSTRUCTION ON THE PROPER USE OF THE OTHER ACTS EVIDENCE. While it is true that Appellant's counsel failed to ask for an appropriate limiting instruction on other acts evidence, the failure to request such an instruction is not the central aspect of the issue. -10- In State v. Long (1978), the Ohio Supreme Court discussed the appropriate analysis of jury instructions under Crim. R. 52(B), plain error. While Long is somewhat different on its facts, the legal principle is applicable to the instant case. In Long, the Supreme Court held that a jury instruction violative of R.C. 2901.05(A) (Burden and degree of proof) does not constitute a plain error or defect under Crim. R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. 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. (Emphasis added.) In the instant case, it cannot be said that but for the failure of the trial court to give a limiting instruction regarding other acts evidence the outcome of the trial would have been different. Ms. Faith was a witness that did not waiver on her very detailed description and ultimate identification of Appellant. Detective Fensel testified that she picked Appellant from the photo array without hesitation. Because of the likely possibility that her eyewitness testimony was relied on by the jury to reach their verdict, we are not prepared to conclude that the outcome of the trial would have been different. Furthermore, if the jury had been instructed that they could only consider the testimony of Mack and O'Reilly for identity purposes exclusively, the result would not necessarily have been different. Mack and -11- O'Reilly did not implicate Appellant in the commission of the June 28, 1990 robbery. (Emphasis added.) Mack's testimony had probative value only with respect to identity since he clearly testified that Appellant did not rob him. C. TRIAL COUNSEL FAILED IN HIS ESSENTIAL DUTY TO REPRESENT JOHN ROBINSON BY HIS FAILURE TO FILE OR ARGUE A MOTION TO SUPPRESS THE EYEWITNESS IDENTIFICATION. The test for ineffective assistance of counsel is embodied in Strickland v. Washington (1984), 466 U.S. 668. The United States Supreme Court held, in Strickland, that a convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction must show first that counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The record, in this case, clearly establishes that the filing of a motion to suppress the eyewitness identification would not have resulted in a different outcome. In ruling on the admissibility of the photos, the trial court stated, "I viewed these photographs before they were presented to the witness at the time, and I found at this point that they were not suggestive, and I think that's the test." -12- Indeed, as Appellant suggests Simmons v. United States (1968), 390 U.S. 377, 384 is dispositive of how to evaluate a photo away. The United States Supreme Court held that identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In light of the trial court's ruling and the rule in Simmons, the filing of the motion would not have resulted in a different outcome. D. TRIAL COUNSEL FAILED TO PRESERVE VALID ISSUES FOR APPEAL. For the reasons enumerated under the previous sub-issues, we find this last argument lacks merit. We, therefore, overrule Appellant's second assignment of error. Appellant's third assignment of error states: JOHN ROBINSON WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR RECEIVING STOLEN PROPERTY WHEN SAID CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. In support of this assignment of error, Appellant argues that his conviction for receiving stolen property was not supported by sufficient evidence because there was no evidence presented that Appellant knew the car was stolen or that he exercised dominion or control over it. Appellant cited State v. Sims (1983), 10 Ohio App. 3d 56 in support of his theory. With respect to the issue of dominion or -13- control, constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession. When the June 27, 1990 robbery took place, Appellant utilized the stolen car as a get away car from the scene. This could arguably be interpreted by a reasonable jury to be the kind of constructive possession tantamount to dominion or control. As to the element of knowledge, the jury could reasonably have given sufficient weight to the circumstantial evidence presented to reasonably conclude that Appellant knew the car was stolen. 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, P.J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .