COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 56575 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RAYMOND J. MITCHELL : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-227,783 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAMES E. VALENTINE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES E. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 JOHN V. CORRIGAN, J.: Defendant-appellant Raymond J. Mitchell (hereinafter the "appellant") was charged in a five-count indictment with aggra- vated burglary (count one), felonious assault (count two), unlaw- ful possession of dangerous ordnance (count three), possession of criminal tools (count four), and having a weapon while under disability (count five). Counts one and two included an aggra- vated felony specification; counts three through five included a violence specification; and all counts included a firearm specifi- cation. Both the aggravated felony specification and the violence specification stemmed from a 1974 conviction for armed robbery. After a joint jury trial with co-defendant Ronald Lane, not a party to this appeal, the appellant was found guilty of counts one, three, four and five, including specifications. He was found not guilty on count two, felonious assault. The evidence adduced by the state at trial revealed the following facts concerning the incident which led to the appel- lant's convictions: On May 13, 1988 at approximately 12:00 p.m., Kathleen Phillips, her boyfriend Edward Stallworth and her one- year-old son were in their apartment located at 4100 Central Avenue in Cleveland, Ohio. Stallworth, who had worked the night shift, was asleep in the bedroom. Phillips was washing clothes in the - 3 - bathtub when she heard someone tapping on the front door. She went to see who was at the door. As she approached the door she saw the knob turning. She pulled open the door, which was unlocked, thinking it was the neighbor's child at the door. Instead, Phillips found the appellant and Lane standing in the doorway. The appellant pointed a sawed-off shotgun at Phillips' face and told her to back up. Phillips retreated backwards into the apartment. The appellant and Lane then entered the apartment, locking the apartment door behind them. Once inside, the appellant asked Phillips where her man they call "fast Eddie" was and if he drove the Cadillac parked in the front of the house. She told them the appellant was asleep in the bedroom. While the appellant detained Phillips at gunpoint, Lane went into the bedroom. Stallworth was awakened by Lane hitting him in the side of the face with his fist. When Stallworth asked Lane what was going on, Lane told him to get up, which he did. At that point, the appellant came into the bedroom, too. According to Stallworth, the appellant told him he was going to kill him for raping his woman. Lane asked Stallworth if he drove a grey Cadillac. Stallworth said he drove a grey and maroon Ninety-Eight Regency. Lane also asked Stallworth if he was known as "fast Eddie." Stallworth said he was but that he knew of at least two other people in the neighborhood who go by that same name. Lane then told Stallworth he was going with them. Stallworth said he needed his shoes; Lane told Stallworth he did not need shoes where he was going. While - 4 - Stallworth was putting on his shoes, Lane hit him in the head with the butt of the shotgun. After Stallworth finished putting on his shoes, the two men pushed him toward the front door. As they reached the front door, there was a knock on the outside door. The appellant, who was holding the gun, told Stallworth that if he opened the door, he would kill him. Believing he had nothing to lose, Stallworth opened the door. Standing in the hallway were five or six Cuya- hoga Metropolitan Housing Authority ("C.M.H.A.") police officers with their service weapons drawn. Stallworth immediately dove to the floor, and the officers pulled Lane, who was then standing in the doorway, into the hallway. The appellant, who was standing approximately six feet into the apartment from the doorway, was telling the police officers not to shoot. One officer told the appellant to drop his gun. The appellant did not drop his gun. The officer again told him to drop his gun or die. The appellant then dropped his gun. The appellant was searched for weapons, and four 20-gauge shotgun shells were found in his pocket. Also found in his pocket were a can of tuna and an onion. Two 20-gauge shotgun shells were found in one of Lane's pockets. Subsequent to the events of May 13, 1988, Lane's wife, the rape victim, cleared Stallworth as the perpetrator after being shown a photograph of him. - 5 - After the state rested, co-defendant Lane testified in his own behalf. Lane explained the circumstances surrounding the rape of his wife on May 8, 1988 and his search for the rapist, which led him to Stallworth. On May 13, 1988, Lane said he went unarmed to Stallworth's apartment to question him regarding the rape. Lane said Phillips opened the door for him and that against Phillips' wishes, he went into the bedroom where Stallworth was asleep. He woke Stallworth and began questioning him about his car. He said that Stallworth said he would talk to him in the hallway but that he needed to first get his shoes. He said Stallworth then reached under the bed, as if to get his shoes, and pulled out a shotgun. He said a struggle over the gun ensued during which the gun fell to the floor. Lane said he picked up two shells from the floor so Stallworth could not load the gun. He said he then hit Stallworth and attempted to leave but was stopped by C.M.H.A. police. Lane said he does not know the appellant and does not know why he was at Stallworth's apartment. The appellant, testifying in his own behalf, similarly tes- tified that he does not know Lane and that he did not go with him to Stallworth's apartment on May 13, 1988. The appellant said he was in the area looking for a friend who had recently moved into that neighborhood when he heard screams from inside the apartment building where Stallworth lived. Believing there might be a fire inside, the appellant said he followed the screams to Stallworth's apartment. The appellant said the apartment door was open and that - 6 - he went inside and saw Lane and Stallworth struggling over a shotgun which Stallworth was holding. The appellant said he dove to the floor to get out of the way of the shotgun. He said the C.M.H.A. police then arrived and told everyone they were under arrest. The appellant denied that he was holding the shotgun when the C.M.H.A. police arrived. Upon cross-examination, the appellant said while he lay on the floor, he may have picked up the gun, which had fallen to the floor, and some shotgun shells. He said even if he were holding the shotgun, he could not have used it since he was left-handed and was holding it in his right hand. I. Following the jury's guilty verdict, the trial court sen- tenced the appellant on the aggravated burglary count to a term of thirteen to twenty-five years incarceration at the Chillicothe Correctional Institution, with three years actual; two and one- half to five years each on the counts of unlawful possession of a dangerous ordnance and possession of criminal tools; and one and one-half to five years on the count of having a weapon while under a disability. The sentences for unlawful possession of a danger- ous ordnance, possession of criminal tools and having a weapon while under disability were ordered to be served concurrently. The sentences for aggravated burglary and having a weapon while under disability were ordered to be served consecutively. - 7 - The appellant now appeals the trial court's judgment and the corresponding sentences, raising six assignments of error for this court's review. II. The appellant's first assignment of error states: THE OFFENSES OF UNLAWFUL POSSESSION OF DAN- GEROUS ORDNANCE, POSSESSION OF CRIMINAL TOOLS, AND HAVING A WEAPON WHILE UNDER DISABILITY ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE CONTEMPLATION OF R.C. SECTION 2941.25, AND THE SEPARATE CONVICTIONS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY GUARANTEED BY ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The appellant did not object at trial to his conviction and sentences on the basis that the offenses of (1) possession of criminal tools and unlawful possession of a dangerous ordnance, (2) unlawful possession of a dangerous ordnance and having a weapon while under disability and (3) possession of criminal tools and having a weapon while under disability are allied offenses of similar import. In State v. Comen (1990), 50 Ohio St.3d 206, the Ohio Supreme Court determined that the defendant's failure to object to the convictions or sentencing at trial resulted in a waiver of an allied offense claim on appeal. See, also, State v. Burge (1992), 82 Ohio App.3d 244, 249; State v. Luvianos (July 8, 1993), Cuyahoga App. No. 63032, unreported. Thus, the appellant has waived his allied offense argument on appeal, and the first assignment of error is overruled. - 8 - The appellant's second assignment of error states: [APPELLANT'S] RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. The appellant argues he was denied a fair trial by the mis- conduct of the prosecutor. He asserts that the prosecutor engaged in improper cross-examination of him by forcing him to express his opinion as to the truthfulness of the state's witnesses and also by improperly eliciting testimony regarding his post-arrest silence. The conduct of a prosecuting attorney during trial is a ground for reversal or the grant of a new trial if such conduct deprives the defendant of a fair trial. State v. Mauer (1984), 15 Ohio St.3d 239, 266, certiorari denied 472 U.S. 1012. The effect of the prosecutor's conduct must be considered in light of the entire case in order to determine whether the conduct was prejudicial. Id. With regard to the prosecutor's cross-examination of the appellant which required the appellant to express his opinion as to the truthfulness of the state's witnesses, we find nothing in the record indicating that the appellant made a timely objection to this questioning. It is well established that the failure to object to an error in a criminal proceeding precludes the issue from being raised unless it rises to the level of plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 13. An error does not rise to the level of plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. - 9 - Wickline (1990), 50 Ohio St.3d 114, 120. Furthermore, "the plain error rule is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a mani- fest miscarriage of justice." State v. Cooperrider (1983), 4 Ohio St.3d 226, 227. While questions posed by the prosecuting attorney to a defen- dant regarding his opinion about the veracity of another witness are improper, State v. Ferguson (June 4, 1992), Cuyahoga App. No. 60713, unreported, we believe that in the absence of such ques- tions and responses, the jury would have found the appellant guilty beyond a reasonable doubt. Id.; State v. Wickline, supra. This conclusion is buttressed by the fact that during his direct examination, the appellant was repeatedly questioned about the truthfulness of the testimony of the state's witnesses. The appellant also challenges as unconstitutional the prose- cutor's questioning of a police officer regarding the appellant's post-arrest silence. The specific line of questioning at issue is, as follows: Q. Did you have occasion to speak with a Ronald Lane and/or a Raymond Mitchell, on or about that day? A. Yes. *** Q. Okay. And do you recall who you spoke with first? A. Mr. Mitchell. - 10 - Q. Okay. And what was the procedure when speaking with him. What did you say to him first? A. First thing, as a matter of procedure, I advised the defendant of his rights. Would you like me to repeat those? Q. Did he state that he understood his rights as communicated by you? A. Yes. Q. Did you ask him if he was willing to make a statement in connection with his arrest? A. Yes. Q. And what was his reply? A. We're speaking of Mr. -- Q. Mr. Mitchell. A. -- Mitchell. He refused to make a statement. Q. Okay. At that time, what name did he give you? MR. YOUNG: Objection. THE COURT: Overruled. A. He gave the name of Clifford Kincaid. Q. And then he refused to make any further statement; is that correct? A. Correct. Again, the appellant failed to raise a timely objection to the prosecutor's questions regarding his post-arrest silence. Nevertheless, the state concedes on appeal that the above ques- tions were improper. See State v. Ferguson (1983), 5 Ohio St.3d - 11 - 160. Thus, we need only determine whether this line of ques- tioning was harmless beyond a reasonable doubt. Based on our review of the entire record, we believe that in the absence of such questions and responses, the jury would have found the appellant guilty beyond a reasonable doubt. State v. Wickline, supra. The appellant's second assignment of error is overruled. The appellant's third assignment of error states: DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSIS- TANCE WHEN IT FAILED TO OBJECT TO THE COURT'S FAILURE TO GIVE AN INSTRUCTION REGARDING THE PROPER USE OF EVIDENCE OF [APPELLANT'S] PRIOR CONVICTION. The appellant, during cross-examination, admitted that he had been convicted of armed robbery in 1974. The appellant does not dispute that this evidence was properly admitted for two reasons: the prior conviction was an element of the offense of having a weapon while under disability and, because the appellant testified in his own behalf, his credibility was at issue. The appellant does, however, challenge the failure of his trial counsel to request a jury instruction on the proper use of the evidence of the prior conviction. In order to receive a new trial for ineffective assistance of counsel, an appellant must make a two-part showing. First, there must be a demonstration that the attorney's representation fell below "an objective standard of reasonable representation." State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the sylla- - 12 - bus. Second, it must be shown that the attorney's substandard representation resulted in prejudice to the defendant. Id. The same test was previously announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 687. To establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of his trial would have been different. State v. Seiber (1990), 56 Ohio St.3d 4; State v. Tyler (1990), 50 Ohio St.3d 24. In evaluating defense counsel's performance, a strong presumption exists that the assistance which was rendered was effective. Strickland v. Washington, supra. at 689-69. Even assuming, arguendo, that counsel's failure to request a cautionary jury instruction on the proper use of the evidence of the prior conviction fell below an objective standard of reason- ableness, we do not find that counsel's substandard representation resulted in prejudice to the appellant. The appellant argues that he incurred prejudice because the jury "likely" used the information that he had previously been convicted of armed robbery in 1974, instead of the weight of the evidence presented at trial, to convict him of the crimes charged in the indictment. The record, however, does not affirmatively demonstrate that the jury used the information that appellant had been convicted of armed robbery in 1974 improperly. More impor- tantly, the weight of the evidence supports the appellant's con- victions beyond a reasonable doubt. Accordingly, we cannot say - 13 - that but for counsel's error, the result of the appellant's trial would have been different. State v. Seiber, supra. The appellant's third assignment of error is overruled. The appellant's fourth assignment of error states: [APPELLANT'S] RIGHTS UNDER ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION FOR AGGRAVATED BURGLARY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. The appellant argues that there was insufficient evidence to support his conviction for aggravated burglary since the jury found him not guilty of the underlying felony charge of felonious assault. An appellate court's function when reviewing a claim of insufficient evidence was affirmatively set forth by the Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St.3d 259, para- graph two of the syllabus, as follows: [A]n appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Citation omitted.) In order to convict the appellant for aggravated burglary, the state was required to prove that appellant intended to forcefully trespass into Stallworth's apartment with purpose to commit a - 14 - felony, such as felonious assault or attempted felonious assault, on Stallworth or any other occupant of Stallworth's apartment. R.C. 2911.11. However, the state was not required to show that the appellant actually committed the underlying felony. State v. Frazier (1979), 58 Ohio St.2d 253; State v. Balcarcel (Mar. 17, 1994), Cuyahoga App. No. 65941, unreported. After thorough review of the record, we find that the state presented sufficient evidence to support a finding that the appel- lant intended to commit a felonious assault or an attempted felo- nious assault upon the occupants of Stallworth's apartment. We believe that through the testimony of Phillips and Stallworth, the factfinder could have reasonably inferred that the appellant intended to commit a felonious assault or an attempted felonious assault; the fact that they found felonious assault did not occur is irrelevant. Id. The fourth assignment of error is overruled. The appellant's fifth assignment of error states: THE JURY VERDICT FINDING [THE APPELLANT] GUILTY OF AGGRAVATED BURGLARY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court aptly set forth the test to be used by an appellate court when reviewing a claim that a conviction is against the manifest weight of the evidence. The Martin court stated as follows: *** [T]he court, reviewing the entire record, weighs the evidence and all reasonable infer- - 15 - ences, considers the credibility of the wit- nesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest mis- carriage of justice that the conviction must be reversed and a new trial ordered. *** See, Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. A review of the entire record leads this court to conclude that the verdict is not against the weight of the evidence. While there are a few inconsistencies between the testimony of Phillips and Stallworth, there is reliable, credible evidence to support each element of the crime of aggravated burglary beyond a reason- able doubt. We do not believe the jury lost its way. The appellant's fifth assignment of error is overruled. The appellant's sixth assignment of error states: THE TRIAL COURT VIOLATED [THE APPELLANT'S] CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION, WHEN IT PERMITTED THE ARMED, UNIFORMED COURTROOM DEPUTIES TO ESCORT [THE APPELLANT] TO THE WITNESS STAND, GIVING THE JURY THE IMPRESSION HE WAS A DANGEROUS PERSON. The appellant argues that the court, by allowing the two armed, uniformed courtroom deputies to escort him to the witness stand in front of the jury, denied him his right to a fair trial. The appellant insists that the jury could not remain unbiased as the suggestion of the need for an escort was that the appellant was dangerous and not worthy of belief. There is nothing in the record indicating that the appellant made a timely objection to this procedure. It is well established - 16 - that the failure to object to an alleged error in a criminal pro- ceeding precludes the issue from being raised unless it rises to the level of plain error. State v. Underwood, supra. An error does not rise to the level of plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Wickline, supra. Furthermore, "the plain error rule is to be applied with the utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscar- riage of justice." State v. Cooperrider (1983), 4 Ohio St.3d 226, 227. In Holbrook v. Flynn (1986), 475 U.S. 560, 89 L.Ed.2d 525, 106 S. Ct. 1340, the United States Supreme Court held that "the conspicuous, or at least noticeable, deployment of security per- sonnel in a courtroom during trial" is not inherently prejudicial. The Court acknowledged that every defendant is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial. Nonetheless, it also said, "this does not mean, however, that every practice tending to single out the accused from everyone else in the courtroom must be struck down." Id. We cannot find that the use of uniformed deputies to escort the appellant to the witness stand is so inherently prejudicial that the appellant was denied his right to a fair trial. Cf. State v. Houston (July 30, 1992), Cuyahoga App. No. 60552, unreported. - 17 - Further, nothing in the record demonstrates that the appel- lant was actually prejudiced by this procedure employed by the court. The appellant did not request a cautionary instruction on the matter nor did he make an attempt to voir dire the jury as to whether this procedure improperly influenced their verdict. See State v. Stankorb (Dec. 17, 1990), Clermont App. No. 91-1656, unreported. In the absence of any affirmative demonstration of prejudice in the record, we cannot conclude that the trial court committed plain error. The sixth assignment of error is overruled. Judgment affirmed. - 18 - 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 Cuyahoga County Court of Common Pleas 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. JOHN T. PATTON, C.J and ANN DYKE, J. CONCUR JUDGE JOHN V. CORRIGAN* *SITTING BY ASSIGNMENT: John V. Corrigan, retired Judge of the Eighth Appellate District. 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, .