COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67370 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLEOTHA ANDREWS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 4, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-299973 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender WILLIAM D. AILER, Assistant ARTHUR A. ELKINS, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street Marion Building, Room 307 Cleveland, Ohio 44113 1276 West Third Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Cleotha Andrews appeals from his conviction for aggravated robbery (R.C. 2911.01) following a jury trial. Defendant contends that the evidence was insufficient to sustain the conviction and he was denied effective assistance of counsel by reason of defense counsel's failure to timely object to inadequate jury instructions. We find no merit to the appeal and affirm. The events leading to defendant's conviction occurred on July 7, 1993, when Leroy Alexander was brutally attacked and robbed of $180 during the early morning hours at Lakeview Terrace Estates in Cleveland. The victim was walking with his son in the area of Lakeview Terrace on the way to visit relatives at another apartment complex when they observed an attack by a gang on another pedestrian. Mr. Alexander, 46 years old, was legally blind in one eye. His son asked for a couple of dollars since he did not want to continue their journey. As the victim was about to hand the money to his son, the boy ran off saying he was going for help. Mr. Alexander continued on his way. As he passed between two parked cars, he was suddenly struck in the head on his blind side and knocked to the ground. His attackers attempted to pry from his hand the money intended for his son. They stretched his arm, stomped his hand, kicked him and finally hit him over the head with a bottle. His good eye was blinded by blood from a large gash in - 3 - his forehead, further impairing his vision. He tried to wipe the blood away and saw a red Lakeview Terrace security van passing by containing three to four security officers. The security van turned around and came back toward him when the attackers fled. The security officers helped him to his feet and an EMS ambulance arrived. He was taken to the hospital and treated. Mr. Alexander was unable to identify his attackers. At the time of the incident, he had approximately $180 in cash in his wallet which was in his back pocket. After the attack, his wallet and the money were gone. He managed, however, to hold onto the two dollars he was going to give his son, despite the attackers' threats and beating. He also testified that, as a result of not having seen his attackers, after he left the hospital, he was read a list of names by a security officer based on that officer's observations of the incident and the attackers. From the list of names, Mr. Alexander recognized the defendant's name, as he used to live in the area about ten years prior and he boxed with defendant a couple of times at the local gym. The security officers testified for the State. On July 7, 1994 at about 2:30 a.m., as they were driving by on Loop Avenue, they witnessed what appeared to be an assault on a male taking place. As a crowd was gathering around the area, they could not see what was actually going on. The officers made a U-turn in their security van and came back to the scene of the attack. - 4 - Two of the officers testified that, as they got closer, they observed two males assaulting Mr. Alexander, who was on the ground. As they approached within about five feet of the attack, one of the attackers fled just before the van stopped. The other male continued his attack until he looked up and saw the officers and he also fled, but not before he hit the victim in the head with a bottle. Two of the officers identified the defendant as the first individual who fled when they approached. One of the officers was able to clearly see the defendant, whom he knew from previous arrests or stops in the area. He also testified that he knew the other assailant who fled after striking the victim over the head with a beer bottle. One of the officers testified that later on that morning he picked the victim up from the hospital, and that Mr. Alexander told him that someone had tried to take his money and this led to a fight. Several days later he transported Mr. Alexander to the Second District to file a police report. The defendant testified in his own behalf. He testified that he and the victim had known each other since the 1970s and went to East Technical High School together; that he knew the victim by the name of "Booney," and he considered himself a friend. Defendant testified that between two and three o'clock in the afternoon of July 7, 1993, Booney came to visit Chucky Jordan's crack house where defendant was living at the time. According to defendant, Booney suggested that they go get some wine towards the purchase of - 5 - which he had two dollars plus change to contribute. Defendant went to freshen up. While he freshened up, Booney apparently went outside and began arguing with Froggy aka Arthur Morgan, the other assailant. He stated that Booney had two dollars in his hand. He also testified that he saw Froggy hit Booney and knock him to the ground. Three other individuals joined in the assault and began beating up on Booney. Defendant said he tried to come to Booney's rescue, but was also attacked, so he ran. He denied robbing Booney. The State presented two rebuttal witnesses: Mr. Alexander (Booney) and Louis Narducci. Mr. Alexander stated that he graduated from East Technical High School in 1967 and never to his recollection attended school with defendant, who was eight years younger. Mr. Narducci, Chief of Security for Lakeview Terrace, testified that the duty roster for that day indicated that the testifying officers were on duty July 7, 1993 and responded at 2:40 a.m., July 7, 1993 to the fight in which Mr. Alexander was assaulted. We will address defendant's assignments of error in the order presented. - 6 - I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF AGGRAVATED ROBBERY IN VIOLATION OF R.C. 2911.01. In State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus, the Ohio Supreme Court set forth the test to be applied by the trial court in such circumstances: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. The essence of this test prevails to the present day. The Supreme Court of Ohio recently described the appellate court's role when reviewing the sufficiency of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Moreover, the weight to be given the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of syllabus. - 7 - There was sufficient evidence for the trier of fact to determine beyond a reasonable doubt that the defendant was guilty of the crime of aggravated robbery. The victim offered testimony that he had two dollars in his hand when he was knocked to the ground and stomped, and that his assailants were trying to pry the money from his hands. He also testified that someone put their foot on his hand that held the money; that his attackers kept saying, "give me the money"; and that $180 in his wallet was missing after the attack. The security officers corroborated the attack; identified the defendant as one of the perpetrators when they arrived on the scene; and that defendant committed a theft offense, or in fleeing immediately after such attempt or offense, inflicted or attempted to inflict serious harm on Mr. Alexander. The evidence, construed in a light most favorable to the State, would permit reasonable minds to find that the essential elements of aggravated robbery were proven beyond a reasonable doubt. This assignment of error is overruled. II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND THE OHIO CONSTITUTION, WHEN TRIAL COUNSEL FAILED TO MAKE A TIMELY CRIM. R. 30 OBJECTION TO THE COURT'S INADEQUATE JURY INSTRUCTION CONCERNING THE DEGREE OF CULPABILITY REQUIRED TO FIND GUILT PURSUANT TO R.C. 2911.01(A)(2). In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel: (1) the defendant - 8 - must show that counsel's representation fell below an objective standard of reasonableness; and (2) the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Seiber (1990), 56 Ohio St.3d 4, 11; State v. Tyler (1990), 50 Ohio St.3d 24, 37-38; State v. Gill (April 29, 1993), Cuyahoga App. No. 62363, unreported. Furthermore, a presumption that a properly licensed attorney executes his duty in an ethical and competent manner must be applied by a reviewing court to any evaluation of a claim of ineffective assistance of counsel. State v. Lytle (1976), 48 Ohio St.2d 391; State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The burden of establishing a claim of ineffective assistance of counsel is on the defendant. State v. Arvantis (1986), 36 Ohio App.3d 213; State v. Harris (Sept. 29, 1994), Cuyahoga App. No. 65681, unreported; State v. Schrader (Sept. 22, 1994), Cuyahoga App. No. 65732, unreported. In the instant case, even assuming, arguendo, that defense counsel failed to raise a timely objection to the jury instruction, that failure alone is not enough to sustain a claim of ineffective assistance of counsel. State v. Holloway (1988), 38 Ohio St.3d 239, 245. Defendant must be able to demonstrate that he was materially prejudiced by his counsel's ineffectiveness. State v. Lytle, supra. - 9 - Defendant argues that the trial court committed plain error in instructing the jury regarding the required mental state for the elements of aggravated robbery. Defendant asserts the trial court failed to instruct the jury that in order to find defendant guilty of R.C. 2911.01(A)(2), it had to find that defendant was reckless in inflicting or attempting to inflict serious physical harm to the victim. Defendant argues that he was thereby prejudiced in that his counsel failed to object to the instructions on this point. Defendant's argument is not persuasive. The trial court instructed the jury in pertinent part, as follows: THE COURT: Before you can find the defendant guilty of aggravated robbery, you must find beyond a reasonable doubt that on or about the 7th day of July, 1993, in Cuyahoga County, Ohio, the defendant knowingly in attempting or committing a theft offense as defined in Section 2913.01 of the Revised Code or in fleeing immediately after such attempt or offense upon Leroy Alexander, Jr., did inflict or attempt to inflict serious physical harm on Leroy Alexander, Jr. * * * The act of inflicting or attempting to inflict serious physical harm on Leroy Alexander, Jr., must have occurred as part of a sequence of the acts leading up to, occurring during or immediately subsequent to the theft. (Tr. 264, 268-269). It cannot be said that the addition of "recklessness" to this charge would have advanced the defendant's cause. As it reads, the State was held to a higher standard of proof than mere recklessness - 10 - in that it was required to show that defendant "knowingly in attempting or committing a theft offense *** did inflict or attempt to inflict serious physical harm on another." Thus, the "knowingly" describes the infliction of harm as well as the theft offense. "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result ***." R.C. 2901.22(B). A person acts recklessly when "he perversely disregards a known risk that his conduct is likely to cause a certain result ***." R.C. 2901.22(C). Thus, the court's charge imposed a higher burden on the State than the addition of recklessness would have. The defendant was not prejudiced. Assignment of Error II is overruled. Judgment affirmed. - 11 - 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 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. NUGENT, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 journalization, at which .