COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60863 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ALBERT J. SMALCER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 254390 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. BEVERLY J. PYLE, ESQ. CUYAHOGA COUNTY PROSECUTOR ASST. PUBLIC DEFENDER BY: JESSLYN C. WILSON, ESQ. Marion Building, Room 307 ASSISTANT COUNTY PROSECUTOR 1276 West Third Street The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: On August 8, 1990, appellant and his co-defendant were indicted for aggravated robbery with an aggravated felony specification and felonious assault also with an aggravated felony specification. Appellant was found guilty of both charges as tried to the bench. The trial court sentenced him to a minimum term of eleven years of actual incarceration to twenty- five years maximum on the first count. On the second count he was sentenced to a term of four years to fifteen years, to be served concurrently with the sentence given on count one. On Sunday, May 6, 1990, Sylvester Bericic called the Cleveland Police to report that he had been robbed. When the police arrived they found Bericic very upset and disheveled. He appeared to be bleeding from several cuts to his chest and neck. His hand was wrapped in a cloth and bleeding heavily. Bericic related the following events to the police that day and later at appellant's trial when Bericic testified. Bericic is a hair stylist who owns his own shop. He lives above his shop in an apartment. Bericic knew appellant for several months before the robbery and assault. Appellant was one of Bericic's clients and he occasionally borrowed money from Bericic. Appellant was aware that Bericic was looking for an older Cadillac which he could use for parts to restore his own Cadillac. On May 6 appellant called Bericic and told him that he knew where an older Cadillac could be found for $300. Because - 2 - Bericic was not driving his own vehicle, due to a smashed windshield, appellant and his friend, Robert "Rusty" Workman, offered to give Bericic a ride to see the car. Appellant and Workman arrived at Bericic's house about an hour later. Workman asked to use the bathroom. When Bericic went into the bedroom adjacent to the bathroom to see what was taking so long, both men cornered him. Appellant said, "This is it." Bericic did not comprehend the meaning of this statement right away but it was clear when Workman took out a flimsy knife and held it to Bericic's throat. Appellant pulled approximately $370 from Bericic's pants pocket. Bericic then responded to their demand for more money by telling appellant to look in an appointment book in his nightstand. Appellant removed $600 more from the book then ripped the phone out of the wall. Appellant said that they would have to tie him up, indicating the phone cord. Bericic then shoved or hit Workman, who went flying across the room. Bericic ran out of the bedroom but was unsuccessful when he attempted to hold the door closed against his attackers. He claims that he ran to the main entrance to the apartment and pulled a crowbar from his tool box. As Workman came up close behind him, Bericic swung the crowbar at his head but only grazed him. Appellant was then ready to leave but Workman replied, "No. I'm going to get this guy." Workman and Bericic struggled over the knife. Workman stabbed him several times before Bericic grabbed the blade, severely injuring his hand. The blade of the - 3 - knife broke off and Workman then ran. Bericic followed for half a block until he began feeling light headed. He returned home and bandaged his cuts before calling the police. Bericic admitted to the police that he had also planned to buy $50 worth of marijuana from appellant, in addition to accompanying him to view the Cadillac. Appellant testified to a much different version of the facts at his trial. Appellant said that about a week before Bericic called the police, appellant and Workman went to Bericic's house. Bericic gave them $1000 to buy a pound of marijuana for him. Appellant took Bericic's money and gave it to a man named "Speedy" Torres. Speedy went into a bar with the money supposedly to meet his connection, and he has not been seen since. Appellant called Bericic the next day to tell him that he had been ripped off and did not have the $1000 or the marijuana. Bericic told him that he had five days to come up with either the money or the drugs and if appellant did not, Bericic would call the police and tell them that appellant had stolen his money. Appellant claims that Bericic's robbery story is only the threat realized. Appellant appeals from his conviction and makes three assignments of error. I THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 4 - Appellant argues that his conviction is against the manifest weight of the evidence because Bericic's testimony contained numerous inconsistencies. Bericic stated that he had known the appellant only a few months before the assault. Appellant said that he has known Bericic for twenty years. Bericic said that his relationship with the appellant consisted of appellant receiving hair cuts and occasionally borrowing money from him. Appellant said that he has been selling marijuana for Bericic for several months on almost a daily basis. Appellant claims that there was no Cadillac as Bericic had testified because police did not find one, even though they did not look for the car. Appellant claims Bericic must have also been lying about having his phone ripped out of the wall because Bericic testified to calling the police ten minutes later. Bericic also called Robert Workman, "Rick" at one point in the testimony. These inconsistencies are hardly enough to overturn appellant's conviction. Bericic's testimony was inconsistent with appellant's testimony but not inconsistent itself. The trial court was well within its role as trier of fact to believe Bericic's testimony rather than appellant's. As to the alleged inconsistencies regarding the Cadillac, the phone and the use of "Rick" instead of Rusty or Robert, the appellant's argument is baseless. The police never looked for a Cadillac at Bericic's home. Bericic could very well have more than one telephone. Presumably there is one in his beauty shop. - 5 - It is also conceivable that Bericic could have made a mistake in referring to Rusty as Rick. This kind of mistake has no bearing on his credibility as a witness. The standard of review used when an appellant has alleged that his or her conviction is against the manifest weight of the evidence has been set forth by the Ohio Supreme Court: 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172. After reviewing the entire record, considering the credibility of the witnesses and weighing the evidence, this court finds that the trial court did not clearly lose its way, nor was a manifest miscarriage of justice created. The appellant's first assignment of error is overruled. II BECAUSE THE SAME CONTEMPORANEOUS CONDUCT SERVED AS A BASIS FOR APPELLANT'S CONVICTIONS OF AGGRAVATED ROBBERY AND FELONIOUS ASSAULT, AND THE ACTS WERE NOT COMMITTED SEPARATELY OR WITH SEPARATE ANIMUS, THOSE ARE OFFENSES OF - 6 - SIMILAR IMPORT WITHIN THE CONTEMPLATION OF R.C. 2941.25 AND TRIAL COURT ERRED IN CONVICTING APPELLANT OF FELONIOUS ASSAULT. Appellant argues that the trial court erred in permitting convictions for both aggravated robbery and felonious assault because the offenses are allied offenses of similar import within the contemplation of R.C. 2941.25. Appellant argues further that the primary motive of appellant was robbery and if a felonious assault occurred it only occurred to facilitate the robbery attempt. The Ohio Supreme Court has held that this issue is waived if not brought up at trial. State v. Comen (1990), 50 Ohio St. 3d 206. Appellant would have this court find that the trial court committed plain error in allowing both convictions. Appellant argues that if this court does not find plain error, then appellant was denied effective assistance of counsel. Under Crim. R. 52(B) plain errors may be noticed by the reviewing court even though they were not brought to the attention of the court below. This court finds that no plain error was made by the court below in convicting appellant on both charges. Aggravated robbery and felonious assault are not allied offenses of similar import within the contemplation of R.C. 2941.25. The Ohio Supreme Court has given courts guidance as to when two crimes are allied offenses of similar import. This court has set forth a two-tiered test to determine - 7 - whether two crimes with which a defendant is charged are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. State v. Blankenship (1988), 38 Ohio St. 3d 116, 117, citing State v. Mughni (1987), 33 Ohio St. 3d 65, 67; State v. Talley (1985), 18 Ohio St. 3d 152, 153-154; State v. Mitchell (1983), 6 Ohio St. 3d 416, 418; State v. Logan (1979), 60 Ohio St. 2d 126, 128. Under the first step of the test, this court has repeatedly followed the rule as to aggravated robbery and felonious assault as set forth by the Ohio Supreme Court. In State v. Preston (1986), 23 Ohio St. 3d 64 the Supreme Court stated that under the facts of that case the charge of aggravated robbery did not constitute an allied offense of similar import to the charge of felonious assault. When first announced the rule of Preston was clearly limited to that case. However, the subsequent decisions of State v. Higgins (1986), 23 Ohio St. 3d 68 and State v. McKinley (1986), 24 Ohio St. 3d - 8 - 208, expanded the Preston holding to make it a general rule. State v. Edwards (Feb. 7, 1991), Cuyahoga App. Nos. 58002 and 59425, unreported, at p. 28, quoting State v. Jackson (Sept. 10, 1987), Cuyahoga App. No. 52573, unreported; see also, State v. Townes (Dec. 6, 1990), Cuyahoga App. No. 57705, unreported and State v. Colapietro (April 26, 1990), Cuyahoga App. No. 56827, unreported. If the conduct of Workman and appellant is scrutinized, it is clear that a separate animus, or motive, existed as to each crime, contrary to appellant's assertion that the primary motive for both charges was robbery. However, because we find under step one that aggravated robbery and felonious assault are not allied offenses of similar import under Preston, it is unnecessary to proceed to step two of the Blankenship test. If the crimes are not found to be allied offenses of similar import after comparing the elements of the crimes, it is unnecessary to review the appellant's conduct. Appellant argues that he received ineffective assistance of counsel at the trial level. Appellant states in his brief, "But for defense counsel's inexcusable inaction, the State could not have obtained the improper convictions for both aggravated robbery and felonious assault." For appellant to succeed on his claim of ineffective assistance of counsel, he would have to prove that defense counsel's performance had "falled below an objective standard of - 9 - reasonable representation and, in addition, prejudice arises from counsel's performance." State v. Frazier (1991), 61 Ohio St. 3d 247, 254, quoting State v. Bradley (1989), 42 Ohio St. 3d 136, at paragraph two of the syllabus. Appellant's defense counsel's representation did not fall below the standard of objectively reasonable representation because it was reasonable to accept convictions without objection based on two crimes which the Ohio Supreme Court has ruled are not allied offenses of similar import. For these reasons, the trial court did not commit plain error in permitting both convictions to stand. The offenses of aggravated robbery and felonious assault are not allied offenses of similar import. Appellant received effective assistance of counsel at his trial. Appellant's second assignment of error is overruled. III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY SENTENCING MR. SMALCER TO ELEVEN YEARS OF ACTUAL INCARCERATION WITHOUT CONSIDERING THE MITIGATING FACTORS MANDATED BY R.C. 2929.12. Appellant received eleven years of actual incarceration to twenty-five years maximum as his sentence for the aggravated robbery conviction with the aggravated felony specification. Under R.C. 2911.01 aggravated robbery is an aggravated felony of the first degree. R.C. 2929.11(B)(1)(b) allows a court to sentence one convicted of aggravated robbery with an aggravated - 10 - felony specification to a minimum term of actual incarceration of ten, eleven, twelve, thirteen, fourteen or fifteen years to a maximum of twenty-five years. Appellant argues that the trial court abused its sentencing discretion by failing to consider the mitigating factors listed in R.C. 2929.12. Appellant asserts that the trial court must show some evidence in the record indicating that the statutory factors were considered. Appellant also notes that no presentence report was made. Appellant's argument is not well taken. Recently, the Ohio Supreme Court decided this issue. Neither the statute nor the procedures established by this court mandate that a trial court set forth its reasons or specific consideration of the factors listed in R.C. 2929.13. A silent record raises the presumption that the trial court correctly considered the appropriate sentencing criteria. State v. Adams (1988), 37 Ohio St. 3d 295, . . ., paragraph three of the syllabus (applied to R.C. 2929.12, a statute similar to R.C. 2929.13). State v. O'Dell (1989), 45 Ohio St. 3d 140, 147. The record is essentially silent as to whether or not the factors under R.C. 2929.12 were taken into consideration. Therefore, the presumption arises that the appropriate criteria was considered. The fact that the trial court ordered drug treatment for the appellant is an indication that the court considered appellant's own statement to the court that he needed help with his drug problem. - 11 - The fact that no presentence report was ordered or prepared was not addressed by appellant at trial. Appellant may not assert this as an error before this court absent exigent circumstances. Absent a request for a presentence report in accordance with Crim. R. 32.2, no grounds for appeal will lie based on a failure to order the report, except under the most exigent of circumstances. State v. Adams (1988), 37 Ohio St. 3d 295, 297. The trial court did not abuse its discretion in sentencing appellant. The presumption exists that the mitigating factors under R.C. 2929.12 were considered absent positive evidence from the record to the contrary. The fact that no presentence report was prepared is not relevant to this assignment of error. The trial court's sentence given to appellant for aggravated robbery is affirmed. Appellant's third assignment of error is overruled. Judgement affirmed. - 12 - 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. JAMES D. SWEENEY, J., AND BLACKMON, J., CONCUR. PRESIDING JUDGE ANN DYKE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .