COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61194 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHARLES OUTLAW, JR. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-249912 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BRIAN R. McGRAW, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: JERRY MILANO 600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant appeals from his conviction for the following, viz., (1) two counts of aggravated murder, R.C. 2903.01, with the following three specifications: (A) mass murder, (B) felony murder and (C) firearm; (2) attempted murder, R.C. 2903.02 and R.C. 2923.02, with a firearm specification; and (3) two counts of aggravated robbery, R.C. 2911.01, with firearm specifications. The following relevant facts are gleaned from the evidence presented at defendant's trial: On January 11, 1990, Leon Glenn, an admitted drug dealer from Youngstown, Ohio, drove to Cleveland in order to purchase a kilogram of cocaine from Alvin King, from whom Glenn had previ- ously purchased drugs several times. Glenn was driving a blue van and was accompanied by his girlfriend, Shawn Ward, and his 1 cousin and partner, Tony Ross. Glenn and Ross had obtained $28,000 in cash to pay for the drugs and had placed it in a black leather case. Ms. Ward came along for the ride unaware of the purpose of the trip. Upon their arrival in Cleveland Glenn drove to the home of 2 Alvin King. There, Glenn saw defendant, whom Glenn knew as "Alvin's brother" and also as a person who had also been involved 1 The spelling of Ross's first name varies in the indictment and the exhibits submitted as evidence in the trial court. This court will use the ordinary spelling. 2 It was established at trial this was a "duplex" home and defendant was at that time living in the downstairs portion of the house. - 3 - in the prior drug transactions between himself and King. Glenn asked defendant to call King. When King arrived the three went upstairs to King's living room while Ms. Ward and Ross waited in the van. When King, Glenn and defendant were in the home, Glenn informed King he was there "for business." King thereupon made a telephone call; he then told Glenn they had to wait for his sup- plier to call back so Glenn should get the money. Glenn accord- ingly went downstairs to the van, retrieved the black case and took it upstairs to King's living room where the money was counted and then placed in a brown paper grocery bag. Some time later King told Glenn the supplier had called. The two men and defendant then went downstairs and got into the van with Ms. Ward and Ross. Glenn took his place in the driver's seat, Ms. Ward was already in the front passenger seat. Besides the front seat, the van had two other seats, viz., the middle seat next to the sliding side cargo door and a rear seat where Ross was already seated on the driver's side. When King entered the van, he sat in the middle seat next to the sliding side cargo door. Defendant also got into the van and sat in the rear seat next to Ross. In that position, defendant was approximately twelve inches from the sliding side cargo door. The grocery bag containing the money was placed on the floor in front of King. King directed Glenn to East 93rd Street near a school, a location where previous transactions had taken place. By this - 4 - time it was after nightfall. When they arrived, King took the bag of money and exited the van through the sliding side door. Glenn observed King go around the back of the van, "up the street about three or four houses," and then disappear from sight. Approximately twenty-five minutes later King returned and stated that his supplier wasn't there so he had to telephone the suppli- er again. King suggested they go to a nearby bar. When they arrived at the bar, both King and defendant exited the van through the sliding side door. They reappeared about ten minutes later. Upon re-entering the van, King and defendant resumed the seats they occupied previously. King said his supplier was on his way and they should return to the location on East 93rd Street. Accordingly, Glenn drove to the previous location. Glenn again parked his van on East 93rd Street near the schoolyard. This time, when King exited the van he did not take the bag of money. About ten minutes later, and almost simulta- neously, the following events occurred: (1) a shot was heard, apparently from the rear area of the van; (2) the side door of the van slid open; (3) Ms. Ward took cover under her seat; (4) as Glenn looked at the side door he saw King standing outside the van; and (5) Glenn then saw a flash coming from where King stood and felt a bullet strike him in the face near his cheek. Glenn thereupon fell forward onto the steering wheel, wounded, feigning death. Glenn's eyes remained open and he was able to see King - 5 - reach in and grab the bag of money. King and defendant then fled. Glenn "laid there and played dead" for a few moments, then told Ms. Ward to start the motor of the van. Ms. Ward was in a state of hysteria and could not comply, so Glenn managed to start the van himself. Glenn "hollered at" Ross but received no response. Ms. Ward saw Ross slumped in his seat, apparently unconscious. Glenn was able to drive the van to a nearby fire station, where he crashed his vehicle into the front doors of the building. At that point, the firefighters in the station sum- moned the police and began rescue efforts toward the victims of the shooting, viz., Glenn and Ross. Both Glenn and Ross were thereafter transported to the hospital. Prior to his entry into surgery, soon after his arrival at the hospital, Glenn was able to speak briefly to a police officer concerning the shooting and gave a description of King as his assailant. Ross had sustained a gunshot wound to the back of the head; he died two days after the shooting without regaining consciousness. Prior to the transportation of the victims to the hospital, Ms. Ward was questioned by Officer Howard concerning the incident. Ms. Ward at that time agreed to assist the officers in finding the places she and her companions had been since their arrival in Cleveland earlier in the day. Through her descrip- tions, Officer Howard was able to determine the following: (1) - 6 - the location on East 93rd where Glenn had parked; (2) the bar King and defendant had entered; and (3) King's house. When they arrived at King's house, the officers went to the door and spoke with King's mother. Officer Howard asked Mrs. King if she had any "pictures" of her son. Mrs. King gave Officer Howard two photographs and Officer Howard thereupon took the photographs to Ms. Ward, who was waiting in the zone car. Ms. Ward then identified Alvin King as one of the persons who was with her and her companions at the time of the shooting. Ms. Ward failed to identify defendant in one of the photographs; however, the photograph of King with defendant was a "double exposure." Later that evening Ms. Ward gave a written statement to the police concerning the shooting. Ms. Ward gave descriptions of King and defendant but did not know their names. About a week after the shooting Glenn, too, was able to give the police a written statement. Glenn knew defendant only as "Charlie." In pertinent part, Glenn stated the following in his first written statement: He [Alvin King] disapeared [sic] again, and about ten minutes later.[sic] The door of the van flew open. I heard one shot, and it was right as the door flew open, and it caused me to turn around. I then felt something hit my face when I heard another shot. I saw Alvin standing at the door, from where the shots came from, and he reached into the van and he grabbed the brown paper bag with the money. When Al snatched the bag, Charlie [defendant] ran out the door too. * * * - 7 - Q. During this incident you speak of did you see anyone with anytype [sic] of weapons? A. No. Q. Do you know how, TONYIE [sic] LAMAR ROSS got shot? A. I don't know, but when the door flew there was [sic] two quick shots. One of the shots hit me. Q. Did you see Alvin King with a weapon, when he opened the door of the van? A. It happened so fast, I heard the door open, heard two shots, saw him at the door grabbing the brown paper bag with the money. I didn't see no [sic] gun. Approximately one month later, Det. Gray of the Cleveland Police Department assembled a photo "spread" with defendant's photograph included therein. Both Ms. Ward and Glenn at that time identified defendant as Alvin King's companion. Also at that time Glenn gave another short written statement wherein he stated defendant was the one "sitting in the back of the van with Tony." Thereafter, defendant was indicted on the following five counts: (1) aggravated murder of Tony Ross, a purposeful killing with prior calculation and design, R.C. 2903.01(A), with a mass 3 murder specification, a felony murder specification, and a 3 The felony murder specification stated as follows: *** [T]he offense presented above was committed while the offender was committing or attempting to commit or fleeing immediately after committing or attempting to commit Aggravated Robbery and either the offender was the principal offender in the - 8 - firearm specification; (2) aggravated murder of Tony Ross "while committing or attempting to commit *** Aggravated Robbery," R.C. 2903.01(B), with a mass murder specification, a felony murder 4 specification, and a firearm specification; (3) attempted murder of Leon Glenn, R.C. 2903.02 and R.C. 2923.02, with a firearm specification; (4) aggravated robbery of Tony Ross, R.C. 2911.01, with a firearm specification; and (5) aggravated robbery of Leon 5 Glenn, R.C. 2911.01, with a firearm specification. Defendant pleaded not guilty to the charges at his arraignment. Subsequently, defendant was tried by a jury. Following the presentation of all the evidence, defendant was found guilty on 6 all counts. The jury later recommended a sentence of life imprisonment with parole eligibility after twenty years. Thereafter, defendant received the following sentence: three years actual incarceration on the firearm specification to be served consecutive with all counts followed by life imprison- ment with parole eligibility after twenty years on counts one and two, which were merged; and concurrent terms of ten to twenty- commission of the Aggravated Murder, or if not the principal offender, committed the Aggravated Murder with prior calculation and design. 4 See footnote 3. 5 Alvin King was also indicted on charges stemming from the same incident. King was tried separately from defendant and his trial occurred prior to defendant's. 6 Regarding the felony murder specifications of counts one and two, the jury found defendant to be the "principal offender." - 9 - five years on counts three, four and five, to be served consecu- tively to the term on counts one and two. Defendant appeals his conviction by and through counsel with three assignments of error. Defendant also presents an addition- al two assignments of error pro se. Defendant's first assignment of error follows: I. THE PROSECUTOR IMPROPERLY IMPEACHED ITS OWN WITNESS CONTRARY TO OHIO RULE OF EVIDENCE 607, THEREBY DENYING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. This assignment of error is without merit. Defendant argues that the following exchange on direct examination of Ms. Ward "planted" an inference in the jury's mind that Ms. Ward "had previously been able to identify" defendant: Q. Shawn, when you made that statement to the Cleveland police that was a written state- ment, is that correct? A. Yes. Q. You had an opportunity to read that? A. Yes. Q. Prior to coming to Court today have you had an opportunity to read that statement? A. Yes. Q. Okay. Now, having read that statement is there anything different from what you're testifying to today in court? MR. MILANO: Objection. Object to that. THE COURT: Objection sustained. - 10 - (Emphasis added.) Defendant argues that the prosecutor's last question was in direct contravention of Evid. R. 607 and its utterance deprived him of a fair trial. His argument is unpersuasive. Evid. R. 607 states the following: The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admit- ted pursuant to Rules 801(D)(1)(A), 801(D)(2), or 803. Defendant asserts the state was improperly "impeaching" its own witness and that he objected to the prosecutor's question and later moved for a mistrial on that ground. A fair reading of the entire transcript of the case sub judice, however, belies defen- dant's assertion. Initially, it is clear that in asking the question the prosecutor was not attempting to "impeach" Ms. Ward; hence, Evid. R. 607 is inapplicable. Rather, the prosecutor was merely anticipating the cross-examination of Ms. Ward concerning incon- sistencies between her written statement and her direct testi- mony. In her direct testimony prior to that point, Ms. Ward stated that she was unable to clearly identify defendant as the person who fired a weapon during the shooting because she never saw any weapons. Ms. Ward also admitted she was unable to identify - 11 - defendant from the "double exposure" photograph shown to her by Officer Howard the night of the incident. There was, however, a strong inference from Ms. Ward's testimony that it must have been defendant who shot Ross because her memory of the incident was that as she was seated in the front seat, just prior to the van's door sliding open, she heard the first shot "louder than the second shot and it was coming, like, from the back" inside the van. Ms. Ward's written statement, made the night of the inci- dent and later introduced into evidence by defendant, merely states that Ms. Ward heard three shots, that defendant was present during the shooting, and that Ms. Ward did not observe defendant with a weapon. A review of the transcript of the case sub judice reveals the following: (1) the prosecutor immediately went to a differ- ent subject after the trial court sustained defendant's objection to the complained-of question; (2) following Ms. Ward's direct examination, defendant explained to the trial court the grounds for his objection, which was related to discovery, not impeach- ment, viz., the prosecutor failed to tell defense counsel prior to Ms. Ward taking the stand that Ms. Ward now as much as said she was able to identify defendant as Ross's assailant; (3) on cross-examination, defendant questioned Ms. Ward extensively concerning her written statement; (4) on redirect examination Ms. Ward explained the inconsistencies between her written statement and her testimony on direct examination; (5) defendant's motion - 12 - for a mistrial was also based upon the discovery issue; and (6) the trial court found no misconduct on the prosecutor's part related to the discovery issue and denied defendant's motion for a mistrial on that ground. Evid. R. 103(A)(1) requires "a timely objection *** stating the specific ground of objection, if the specific ground was not apparent from the context," in order to predicate error on any related ruling. State v. Stearns (1982), 7 Ohio App.3d 11, 15 (emphasis added). In the case sub judice, the specific ground of defendant's objection was not related to the state's improper "impeachment" of Ms. Ward contrary to Evid. R. 607. Moreover, State v. Miller (1988), 56 Ohio App. 3d 130, at headnote 1 promulgates the following proposition of law: Where a defendant in a criminal trial objects to the testimony of a witness on a particular sub- ject, and then proceeds to cross-examine the witness on such subject, the cross-examination constitutes a waiver of any error in the initial allowance of such testimony. From a review of the record in the case sub judice, it is clear that the prosecutor was not attempting to "impeach" Ms. Ward. Cf., State v. Reed (1981), 65 Ohio St. 2d 117. It is also clear defendant did not object to the prosecutor's question on this ground; hence, his objection was waived. State v. Williams (1977), 51 Ohio St. 2d 112. Furthermore, defendant questioned Ms. Ward concerning her written statement and introduced it into evidence; therefore, he cannot now claim her testimony concerning the written statement was error. State v. Miller, supra. - 13 - For the foregoing reasons, defendant's first assignment of error is not well taken and is, accordingly, overruled. Defendant's second assignment of error follows: II. THE PROSECUTOR'S COMMENTARY ON THE CO-DEFEN- DANT'S CONVICTION ADDRESSED MATTERS OUTSIDE THE EVIDENCE, THEREBY DEPRIVING THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL. This assignment of error lacks merit. Defendant argues that "closing argument on the behalf of the state included ... improper and inflammatory remarks." Defendant further contends these comments constituted prosecutorial miscon- duct severe enough to warrant a reversal of his conviction, citing State v. Smith (1984), 14 Ohio St.3d 13, in support of his contention. Defendant, however, specifically directs this court's attention to only the following comment made by the prosecutor in his closing argument: Let's talk about Alvin first. Alvin came marching in in an orange uniform. And I don't have to tell you what that means. Alvin told you what that means. Alvin's under sentence. He's been convicted of this crime. Alvin told you on the witness stand that he told the identical story to the jury in his case. Now you heard Alvin's story. Clearly if the jury had believed Alvin, the story that he told on this witness stand is the same one he had told. If the jury had be- lieved that story Alvin wouldn't have come in here in an orange uniform. Alvin was convicted because he told that same story and the jury concluded correctly that it was a lie. Generally, conduct of the prosecutor at trial shall not be a ground for error unless the conduct deprives the defendant of a - 14 - fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Vrona (1988), 47 Ohio App.3d 145. Further, the trial court shall afford the prosecutor some latitude and freedom of expres- sion during closing argument. State v. Apanovitch, supra. Therefore, a defendant shall be entitled to a new trial only when a prosecutor makes improper remarks and those remarks substan- tially prejudice the defendant. State v. Smith, supra. The prosecutor's remarks in the case sub judice merely stated the obvious. In the case sub judice, King's conviction was placed in evidence during his testimony. Moreover, the comments made by the prosecutor were made in the context of informing the jury that King's conviction should be weighed in determining his credibility. Generally, a prosecutor may not give his personal opinion concerning the credibility of witnesses. See State v. Smith, supra. However, the prosecutor here merely stated the rule that such convictions may be used to weigh credibility. See Evid. R. 603(A). While such instructions should remain the province of the trial court, the prose- cutor's comments here did not substantially or unfairly prejudice the plaintiff. State v. Henderson (Apr. 26, 1990), Cuyahoga App. No. 56828, unreported. It must also be noted defendant did not object to the prosecutor's comments at trial; hence, he may not now claim this as error. State v. Williams, supra. A review of the record thus fails to indicate the prosecutor's comments in his closing - 15 - argument substantially prejudiced defendant and denied defendant his right to a fair trial. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: III. THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. This assignment of error is also without merit. Defendant argues that based upon the evidence of the case sub judice no reasonable jury could have found him guilty of aggravated murder, attempted murder or aggravated robbery. Rather, all the evidence was consistent only with Alvin King's guilt of the crimes. Defendant's argument is not persuasive. 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 mani- fest 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. State v. Martin, supra, at 175. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for - 16 - 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. The reviewing court must therefore analyze the underlying offenses when considering defendant's argument that his conviction was against the manifest weight of the evidence. R.C. 2903.01(A), Aggravated Murder, states as follows: (A) No person shall purposely, and with prior calculation and design, cause the death of another. R.C. 2903.01(B), Aggravated Murder, states in pertinent part the following: (B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after commit- ting or attempting to commit *** aggravated rob- bery or robbery, ***. R.C. 2903.02, Murder, states the following: (A) No person shall purposely cause the death of another. R.C. 2923.02, Attempt, states as follows: (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpabili- ty for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense. Finally, R.C. 2911.01, Aggravated Robbery, states in perti- nent part the following: - 17 - (A) No person, in attempting or committing a theft offense, *** or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ord- nance, *** on or about his person or under his control; (2) Inflict, or attempt to inflict, serious physical harm on another. The Ohio Supreme Court has repeatedly emphasized the test for prior calculation and design as enunciated in State v. Cotton (1978), 56 Ohio St.2d 8, in paragraph three of the syllabus as follows: Where evidence adduced at trial reveals the pres- ence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified. In the case sub judice, the state presented the testimony of two eyewitnesses to the shooting - Shawn Ward and Leon Glenn. Their testimony was remarkably consistent. Through the testimony of these two witnesses the following facts were established: (1) defendant was involved with King in both previous drug transac- tions between Glenn and King and in the attempted drug transac- tion of January 11, 1990; (2) when King exited the van at the bar defendant followed him; (3) defendant and King were absent approximately ten minutes then returned to the van at the same time; (4) King did not take the money out of the van the second time, contrary to his usual procedure; (5) defendant remained in - 18 - the van and was seated next to Ross on Ross's right; (6) the first shot heard was louder than the second shot and seemed to come from inside the van; (7) the second shot came from outside the van; (8) there was no one else around; (9) Ross was shot on the right side of the back of his head and subsequently died of his wound; (10) Glenn was shot in the face as he looked toward the sliding side door of the van; (11) the bag of money was grabbed immediately after the shots were fired; and (12) both defendant and King then fled the scene. The testimony of Shawn Ward and Leon Glenn was substantially corroborated by their written statements concerning the incident, by the testimony of the police officers who investigated the shooting, and even by defendant's own testimony. Furthermore, the testimony of the forensic experts concerning the wounds sustained by Ross and Glenn and the weapons which caused them was consistent with Ms. Ward's and Glenn's testimony. In short, there was consistent, credible testimony adduced at trial in the case sub judice which supported the jury's conclusion that defendant and King were involved in a plan to shoot and rob the occupants of Glenn's van on the evening of January 11, 1990. State v. Cotton, supra; State v. Price (1989), 52 Ohio App.3d 49. In stating this, the court sub judice is mindful that an appellate court need not subject circumstantial evidence of guilt to a standard of proof other than proof beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259. - 19 - The record in the case sub judice reflects that weighing all the evidence, drawing all the reasonable inferences therefrom and considering the testimony and credibility of the state's wit- nesses and the defendant, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. State v. Martin, supra. Accordingly, defendant's third assignment of error is also overruled. Defendant presents two additional assignments of error pro se. The first follows: I. THE TRIAL COURT COMMITTED PLAIN ERROR UNDER CRIM R 52 (B) AND THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE TRIAL COURT'S INSTRUCTION ON AIDING AND ABETTING, WHICH RELIEVED THE STATE OF OHIO OF ITS BURDEN OF PROOF THAT DEFENDANT-APPELLANT HAD A PURPOSE TO KILL INDEPENDENT OF THAT POSSESSED BY THE ALLEGED ACCOMPLICE. Defendant argues that with regard to the aggravated murder charges the trial court's instructions to the jury on the law of aiding and abetting were plainly improper. Civ. R. 52(B). Defendant asserts the instructions could have led the jury to believe that King's intent to commit the crimes was sufficient to also convict defendant of the crimes. These contentions are not persuasive. Initially, it must be noted that any discussion of this issue is merely academic since the jury expressly found defendant to be the principal offender with regard to the aggravated murder - 20 - charges. In addition, the Supreme Court has stated on many occasions that in order for an unrequested and/or unobjected to jury instruction to rise to the level of plain error, it must appear on the face of the record that not only was error committed but that, except for the error, the result of the trial clearly would have been otherwise and not to consider the error would result in a manifest miscarriage of justice. Crim. R. 52(B); State v. Underwood (1983), 3 Ohio St.3d 12; State v. Cooperrider (1983), 4 Ohio St. 3d 226. Thirdly, instructions to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge. State v. Price (1979), 60 Ohio St.2d 136, paragraph 4 of the syllabus. A review of the record in the case sub judice reveals the trial court carefully instructed the jury several times that it must find defendant had the specific intent to cause the death of Ross to be convicted of aggravated murder. A review of the record in the case sub judice, therefore, fails to demonstrate either that plain error was committed by the trial court or that, but for the complained of instructions, the results of defendant's trial would be different. State v. Cooperrider, supra. Accordingly, defendant's first pro se assignment of error is overruled. Defendant's second pro se assignment of error follows: II. THE DEFENDANT-APPELLANT WAS DENIED THE EFFEC- TIVE ASSISTANCE OF COUNSEL FOR HIS DEFENSE AT TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL - 21 - ON APPEAL OF RIGHT AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. This assignment of error is not well taken. Defendant argues that since there was insufficient evidence to convict him for aggravated robbery of Tony Ross and since his "codefendant was granted a directed verdict of acquittal on the count of the indictment charging the aggravated robbery of the decedent Tony Ross", defendant's trial counsel's failure to specifically direct a Crim. R. 29 motion of acquittal to that count of the indictment demonstrates counsel's ineffectiveness. In concluding his argument, defendant also makes the following assertion: Trial counsel could not reasonably be expected to raise his own ineffectiveness at trial while representing Appellant on the instant direct ap- peal. Thus, Appellant submits that he has been denied the effective assistance of Appellant Coun- sel as well. Defendant's arguments are specious. When considering defendant's allegation of ineffective assistance of counsel, a two-step process is employed as follows: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective stan- dard of reasonable representation and, in addi- tion, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 6232; Strickland v. Washi- ngton [1984], 466 U.S. 668, followed.) To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable proba- bility that were it not for counsel's errors, the result of the trial would have been different. - 22 - State v. Bradley (1989), 42 Ohio St.3d 136, at paragraphs two and three of syllabus. Employing the above test, a court hearing an ineffective assistance of counsel claim must consider the totality of the evidence presented at trial. Bradley, supra, at 142. In the case sub judice, Leon Glenn testified that he and Tony Ross were partners and that both he and Tony Ross had obtained the $28,000 that was subsequently stolen during the shooting. Therefore, there was sufficient evidence to sustain both counts of aggravated robbery. Moreover, defense counsel moved for a judgment of acquittal pursuant to Crim. R. 29 as to all counts of the indictment; his failure to single out one is within the concept of "trial tac- tics." Trial tactics of counsel are virtually unassailable relative to an ineffective assistance of counsel claim. State v. Lytle, supra; State v. Bradley, supra. Moreover, a review of the record in the case sub judice reveals that defendant's counsel was a capable, experienced and zealous trial attorney who was obviously well prepared in his defense of his client. Thus, none of the defendant's arguments demonstrate counsel's performance fell below an objective stan- dard of reasonable representation based on the facts in the case sub judice viewed at the time of trial. State v. Bradley, supra. An accused is entitled to a fair trial, "not a perfect one." - 23 - State v. Williams (1988), 38 Ohio St.3d 346. Defendant, under all the circumstances of the case sub judice, had a fair trial. Furthermore, although defendant argues that he is denied effective assistance of appellate counsel, however, since that argument is based upon his claim that he had ineffective assis- tance of counsel at the trial level and that claim has been rejected, defendant's argument is not sustainable. State v. Murnahan (1992), 63 Ohio St.3d 60. Accordingly, defendant's second pro se assignment of error is also overruled. Defendant's convictions are affirmed. - 24 - 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 HARPER, 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. .