COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67970 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : EARL WILLIAMS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 19, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-303389. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Edward O. Patton, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert M. Ingersoll, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -3- DAVID T. MATIA, P.J.: Earl Williams, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas for the offenses of aggravated robbery, kidnapping and felonious assault. Each count contained aggravated felony, violence and firearm specifications. Defendant-appellant assigns six errors for this court's review. Defendant-appellant's appeal is affirmed in part, reversed in part and remanded for resentencing. I. THE FACTS On October 8, 1993 Mr. Dink Gray, the victim, and Mr. Chad Earnest were driving in the area of Dickens and East 93rd Street in Cleveland, Ohio when they were approached by a man identified only as Tony who told them that William "Eric" Russell wanted to speak with Gray. Gray and Earnest proceeded to Eric Russell's apartment building. Upon arrival, Gray entered the apartment and Earnest remained seated in the passenger seat of Gray's automobile. After entering the apartment, Gray spoke with Russell regarding a touch football team managed by Gray. That day, Gray had collected a large amount of money (approximately $240.00) in order to have lettering placed on the football team jerseys. While Gray and Russell were talking, Earl Williams, defendant-appellant came out of the bathroom and entered the bedroom. As Gray was about to leave the apartment, Earl Williams, defendant-appellant, allegedly came out of the bedroom and pointed an automatic handgun at Gray's head and ordered Gray to lie down on the floor. Earl Williams, defendant-appellant, demanded that Gray -4- turn over any money in his possession and then took the money for the football team jerseys as well as a gold chain and some jewelry belonging to Gray. During the robbery, Earl Williams, defendant- appellant, was not wearing a shirt or shoes but somehow managed to put on a shirt, shoes and a hat before leaving the apartment. At one point after the robbery, Earl Williams, defendant- appellant, told Eric Russell to go outside and call Chad Earnest into the apartment. However, Gray was able to yell a warning to Earnest enabling Earnest to escape. After approximately ten minutes, Earl Williams, defendant- appellant, allowed Gray to get up off the floor and leave the apartment. However, in an attempt to regain possession of his property, Gray pushed his way back into the apartment and chased Earl Williams, defendant-appellant, out of the back door. Gray quickly caught Earl Williams, defendant-appellant, and a fight ensued in which Gray forcibly removed defendant-appellant's shirt, hat and boots. Earl Williams, defendant-appellant, allegedly tossed the handgun he had been carrying to Eric Russell during the ongoing fight and Russell then shot Gray in the leg. Earl Williams, defendant-appellant, and Russell then fled from the scene. Patrolman Dwight Campbell of the Cleveland Police Department observed two black males running from the direction of the shooting. One of the males was observed wearing only a pair of dark colored jeans. Patrolman Campbell called for assistance and began pursuit of the suspects. -5- Patrolman Rick Annable of the Cleveland Police Department eventually apprehended Earl Williams, defendant-appellant, hiding approximately ten feet off the ground in a pine tree. Annable noted that Earl Williams, defendant-appellant, was wearing only dark colored jeans at the time of his apprehension and arrest. In addition, a nine millimeter shell casing was recovered from the scene of the shooting. Eric Russell escaped and remains at large. On October 23, 1993 Gray spoke with Detective R.C. Taylor of the Cleveland Police Department and gave a written statement concerning the events of October 8, 1993. On October 28, 1993 Gray identified Earl Williams, defendant-appellant, from a single photograph shown to him by Detective Taylor. On December 11, 1993 the Cuyahoga County Grand Jury returned a three count indictment against Earl Williams, defendant-appellant. Count one charged defendant-appellant with aggravated robbery, in violation of R.C. 2911.11. Count two charged defendant-appellant with kidnapping, in violation of R.C. 2905.01. Count three charged defendant-appellant with felonious assault, in violation of R.C. 2903.11. Each count contained aggravated felony, violence and firearm specifications. On January 6, 1994 defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all counts contained in the indictment. On April 5, 1994 the trial court conducted an evidentiary hearing on Earl Williams', defendant-appellant's, motion to suppress identification evidence. Defendant-appellant maintained during the hearing that the photo identification procedure utilized -6- by the police was highly suggestive and unreliable. The trial court denied defendant-appellant's motion. On August 3, 1994 a jury trial began in the Cuyahoga County Court of Common Pleas. At trial, Earl Williams, defendant- appellant, testified that he did not participate in any way in the shooting of Dink Gray. Defendant-appellant testified further that the shooting was the result of a drug deal gone bad. Defendant- appellant stated that he fled from the scene of the shooting because he was on probation and did not want to be connected with illegal drugs once the police arrived to investigate. On August 5, 1994 the jury returned a verdict of guilty against defendant-appellant on all three counts contained in the indictment as charged. On counts one and two the trial court sentenced defendant-appellant to serve a term of twelve to twenty-five years in the Lorain Correctional Institution. On count three the trial court imposed a ten to twenty-five year sentence in the Lorain Correctional Institution. The trial court ordered the above sentences to run concurrently. Lastly, the trial court merged the three firearm specification terms into one consecutive three year term of actual incarceration. On September 29, 1994 Earl Williams, defendant-appellant, filed a timely notice of appeal from his conviction and sentence in the trial court. -7- II. FIRST ASSIGNMENT OF ERROR Earl Williams', defendant-appellant's, first assignment of error states: EARL WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN THE TRIAL COURT DID NOT SUPPRESS THE IDENTIFICATION IN THE CASE AT BAR WHICH WAS THE RESULT OF A HIGHLY AND UNNECESSARILY SUGGESTIVE PROCEDURE. A. THE ISSUE RAISED: EYEWITNESS IDENTIFICATIONS Defendant-appellant argues through his first assignment of error that the trial court improperly allowed evidence pertaining to the eyewitness identification of defendant-appellant by Dink Gray, the shooting victim. Specifically, defendant-appellant maintains that the identification procedure utilized by the Cleveland Police Department was unreliable and highly suggestive since the police admittedly showed Dink Gray only one picture of defendant-appellant and no pictures of additional suspects from which to choose. Defendant-appellant maintains further that, before showing Dink Gray the photograph, the police informed Gray that the picture was of a man already in custody as a suspect in the crimes. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR EYEWITNESS IDENTIFICATION When a witness has been confronted with a suspect prior to trial, due process requires a trial court to suppress identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the -8- identification was unreliable under all the circumstances. State v. Waddy (1992), 63 Ohio St.3d 424; Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375; Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243. In Manson v. Brathwaite, supra, the United States Supreme Court stated: The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability. Id. at 106. The critical inquiry is whether under the totality of the circumstances, the eyewitness identification was reliable even though the procedure may have been somewhat suggestive. Neil v. Biggers, supra, 199. Factors which should be considered in determining the reliability of eyewitness identification include: The opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these facts is to be weighed the corrupting effect of the suggestive identification itself. Id. at 200. Accordingly, even if a photographic identification procedure out of which a suspect was selected by a victim was suggestive, the identification itself may still be reliable and not violative of a defendant's due process rights if other factors are present which demonstrate sufficient aspects of reliability. -9- -10- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS In the instant case, Dink Gray, the victim of the shooting had numerous opportunities in which to view defendant-appellant. Gray testified that he first saw defendant-appellant while talking with Eric Russell in Russell's apartment. At this time Gray observed defendant-appellant closely. Gray testified that he also observed defendant-appellant numerous times during the 10 to 15 minute period that defendant-appellant held him at gunpoint. Gray had a third opportunity to view defendant- appellant at close range while both men were struggling before Gray was shot. In addition, Gray had given a full and accurate description of defendant-appellant to the police prior to identifying defendant-appellant's photograph. While it is true that presenting a single photograph of a suspect to a victim may be suggestive, in the instant case, under the totality of the circumstances, the identification of defendant-appellant by Gray was supported by sufficient aspects of reliability so as to be deemed admissible by the trial court. Defendant-appellant's due process rights were not violated by the admission of the identification testimony. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Earl Williams', defendant-appellant's, second assignment of error states: -11- EARL WILLIAMS HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY THE SENTENCES ON HIS KIDNAPPING AND FELONIOUS ASSAULT CONVICTIONS, AS BOTH EXCEED THE STATUTORY LIMITS ESTABLISHED BY THE OHIO REVISED CODE. A. THE ISSUE RAISED: INAPPROPRIATE SENTENCES Defendant-appellant argues through his second assignment of error that the trial court improperly sentenced him to a term of incarceration exceeding the statutory maximum limit set forth by the Ohio Revised Code for second degree aggravated felonies. Specifically, defendant-appellant maintains that he received a sentence appropriate for a first degree aggravated felony. It is defendant-appellant's position that under R.C. 2905.01(C) and R.C. 2903.11(B) kidnapping and felonious assault, as indicted in this case, constitute second degree aggravated felonies. Defendant-appellant's second assignment of error is well taken. B. STANDARD OF REVIEW R.C. 2905.01 provides: (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: (1) To hold for ransom, or as a shield or hostage; (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical harm on the victim or another; -12- (4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against his will; (5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority. (B) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall knowingly do any of the following, under circumstances which create a substantial risk of serious physical harm to the victim: (1) Remove another from the place where he is found; (2) Restrain another of his liberty; (3) Hold another in a condition of involuntary servitude; (C) Whoever violates this section is guilty of kidnapping, an aggravated felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is an aggravated felony of the second degree. R.C. 2903.11 provides: (A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree. -13- R.C. 2929.11(B)(2)(b) states in relevant part: (B) Except as provided in division (D) of this section, section 2929.71, and Chapter 2925, of the Revised Code, terms of imprisonment for felony shall be imposed as follows: * * * (2) For an aggravated felony of the second degree: (b) If the offender has previously been convicted of or pleaded guilty to any aggravated felony of the first, second, or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second, or third degree or to aggravated murder or murder, the minimum term shall be imposed as a term of actual incarceration of eight, nine, ten, eleven, or twelve years, and the maximum term shall be fifteen years. C. THE TRIAL COURT'S SENTENCE WAS ERROR In the case sub judice, a review of the underlying indictment reveals that defendant-appellant was indicted for kidnapping in violation of R.C. 2905.01. The indictment does not contain language that defendant-appellant failed to release the victim in a safe place unharmed; therefore, kidnapping, as indicted, constituted a second degree aggravated felony. A further review of the indictment reveals that defendant-appellant was indicted for felonious assault in violation of R.C. 2903.11. The indictment does not allege that the victim of the felonious assault was a peace officer; therefore, felonious assault, as indicted, constituted a second degree aggravated felony. -14- The trial court sentenced defendant-appellant to a term of incarceration of twelve to twenty-five years on count two of the indictment and ten to twenty-five years on count three of the indictment. Both sentences are clearly inappropriate given the fact that defendant-appellant was convicted of two second degree aggravated felonies for which the appropriate sentence would be eight, nine, ten, eleven or twelve to fifteen years maximum pursuant to R.C. 2929.11(B)(2)(b). Accordingly, the trial court must resentence defendant-appellant in conformity with the mandates set forth in R.C. 2929.11 to a sentence that does not exceed the statutory limit for a second degree aggravated felony. Defendant-appellant's second assignment of error is well taken. IV. THIRD ASSIGNMENT OF ERROR Earl Williams', defendant-appellant's, third assignment of error states: EARL WILLIAMS WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW, WHEN THE TRIAL COURT SENTENCED HIM AS A PUNISHMENT FOR EXERCISING HIS CONSTITUTIONAL RIGHT TO TRIAL. A. THE ISSUE RAISED: WHETHER DEFENDANT-APPELLANT WAS SENTENCED AS PUNISHMENT FOR EXERCISING HIS RIGHT TO TRIAL. Defendant-appellant argues through his third assignment of error that the trial court abused its discretion by sentencing defendant-appellant as punishment for exercising his constitutional right to trial. Specifically, defendant-appellant maintains that the following comments by the trial court clearly -15- demonstrate that he was punished for exercising his right to trial: What the jury also doesn't know, Mr. Williams, is that in order to resolve this case this defendant was offered a plea bargain of only 3 to 15 years and he turned it down. And I said to you, if I am not mistaken, at the time of your decision, if you wanted a trial I would give you a trial but the trial would be over in just a couple days and if you expected any consideration from me that you should show the Court consideration, and you didn't, and you decided to take it to trial. (Tr. 280-281.) Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW R.C. 2929.12 provides: (A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk; the nature and circumstances of the offense; the victim impact statement prepared pursuant to Section 2947.051 [2947.05.1] of the Revised Code, if a victim impact statement is required by that section; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment. (B) The following do not control the court's discretion, but shall be considered in favor of imposing a longer term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: (1) The offender is a repeat or dangerous offender; -16- (2) Regardless of whether the offender knew the age of the victim, the victim of the offense was sixty-five years of age or older, permanently and totally disabled, or less than eighteen years of age at the time of the commission of the offense; (3) The victim of the offense has suffered severe social, psychological, physical, or economic injury as a result of the offense. (C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed; (1) The offense neither caused or threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment. (D) The criteria listed in divisions (B) and (C) of this section do not limit the matters that may be considered in determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed. -17- The standard of review for determining whether the trial court properly considered the sentencing factors set forth in R.C. 2929.12 is abuse of discretion. State v. Paige (Dec. 22, 1994), Cuyahoga App. No. 66743, unreported at p. 8. As stated by the Ohio Supreme Court in Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, the term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. An appellate court is not permitted to set aside a sentence imposed by the trial court absent a clear showing that it abused its discretion. Toledo v. Reasomover (1965), 5 Ohio St.2d 22. C. THE TRIAL COURT DID NOT SENTENCE DEFENDANT-APPELLANT AS A PUNISHMENT FOR EXERCISING HIS RIGHT TO TRIAL. In the case sub judice, a review of the record demonstrates that the trial court took into consideration the factors enumerated in R.C. 2929.12 prior to sentencing defendant- appellant. The trial court questioned defendant-appellant at length regarding defendant-appellant's version of events leading up to and including the shooting of Dink Gray and commented on defendant-appellant's continued denial of responsibility for the crimes. In addition, the trial court noted that defendant- appellant had a prior criminal record for which defendant- appellant had previously served time in the state penitentiary. Accordingly, the record affirmatively shows that defendant- appellant's sentence was based upon considerations set forth in R.C. 2929.12 and not as punishment for exercising his right to -18- trial. The fact that the trial court sentenced defendant- appellant to sentences that exceeded the statutory maximum limit set forth by the Revised Code does not support defendant- appellant's contention that he was sentenced as punishment for proceeding to trial given the fact that the trial court's error was based upon the misconception that defendant-appellant was convicted of at least two first degree aggravated felonies. (See Tr. at p. 275.) While it is true that the trial court's statement regarding defendant-appellant's decision to go to trial may, when taken out of context, tend to demonstrate an improper intent to punish defendant-appellant, a review of the complete sentencing phase of the proceedings does not support defendant-appellant's contention. Accordingly, the trial court did not abuse its discretion in sentencing defendant-appellant. Defendant-appellant's third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Earl Williams', defendant-appellant's, fourth assignment of error states: EARL WILLIAMS HAS BEEN DEPRIVED OF HIS CONSTITUTIONAL RIGHT NOT TO BE PLACED IN JEOPARDY TWO TIMES FOR THE SAME OFFENSE BY HIS CONVICTIONS FOR AGGRAVATED ROBBERY AND KIDNAPPING, WHEN THE TWO CRIMES WERE ALLIED OFFENSES OF SIMILAR IMPORT. A. THE ISSUE RAISED: ALLIED OFFENSES OF SIMILAR IMPORT. -19- Defendant-appellant argues that, under the factual circumstances of this case, kidnapping and aggravated robbery were allied offenses of similar import. Specifically, defendant- appellant maintains that he had only one motive for kidnapping Dink Gray and that motive was so that he could commit the aggravated robbery. Defendant-appellant contends further that since he only had one motive, it was improper for the trial court to convict him of both offenses. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW R.C. 2941.25, which deals with issues of multiple counts and allied offenses of similar import, states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In State v. Parker (1986), 31 Ohio App.3d 128, the Second District Court of Appeals found that kidnapping and robbery are allied offenses of similar import where the restraint of the victim is merely incidental to the crime of robbery. Under such -20- circumstances, it is improper for a trial court to enter a judgment of conviction on the charge of kidnapping. Allied offenses of similar import occur when the offenses and their elements correspond to such a degree that the commission of one offense results in the commission of the other; the state relies on the same conduct to support both offenses; and the commission of both offenses is motivated by the same animus or purpose. State v. Souchey (June 9, 1994), Cuyahoga App. No. 62797, unreported (citations omitted). In State v. Logan (1979), 60 Ohio St.3d 126, the Ohio Supreme Court set forth guidelines in order to determine whether kidnapping and another charged offense constitute allied offenses of similar import. The Supreme Court stated: (a) Where the restrain or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. Id. at syllabus. Absent plain error, a defendant's failure to raise the issue of allied offenses of similar import at the time of his -21- conviction or sentencing constitutes a waiver of the claimed error on appeal. State v. Comen (1990), 50 Ohio St.3d 202, 211; State v. Williams (Dec. 17, 1992), Cuyahoga App. No. 61262, unreported. -22- C. KIDNAPPING AND AGGRAVATED ROBBERY NOT ALLIED OFFENSES OF SIMILAR IMPORT. Under the facts of the instant case, the offenses of kidnapping and aggravated robbery were not allied offenses of similar import since defendant-appellant exhibited a separate animus as to each offense. A review of the record demonstrates that defendant-appellant committed the aggravated robbery fairly soon after Dink Gray had entered Eric Russell's apartment. After defendant-appellant had taken Gray's money and personal possessions the aggravated robbery was completed. At this point, defendant-appellant's motive for confining Dink Gray was no longer robbery. Gray testified that defendant- appellant interrogated him at gunpoint and then attempted to induce Gray's friend Chad Earnest to enter the apartment apparently so that Earnest could also be robbed and confined. Defendant-appellant attempted to tie Gray with a phone cord as well after the aggravated robbery had concluded. Clearly, a separate animus existed for the kidnapping offense. Defendant-appellant's fourth assignment of error is not well taken. VI. FIFTH ASSIGNMENT OF ERROR Earl Williams', defendant-appellant's, fifth assignment of error states: EARL WILLIAMS WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE AN INFORMED AND IMPARTIAL JURY, WHEN THE TRIAL COURT FAILED TO DEFINE AN ESSENTIAL ELEMENT OF THE FIREARM SPECIFICATIONS FOR THE JURY. -23- A. THE ISSUE RAISED: JURY INSTRUCTIONS Defendant-appellant argues through his fifth assignment of error that the trial court failed to instruct the jury on an essential element of the charged crime and therefore, reversal is required. Specifically, defendant-appellant argues that he was convicted of firearm specifications on all three counts contained in the indictment. However, the jury was not instructed as to the statutory definition of a firearm at any time during the instructions. It is defendant-appellant's position that the trial court's failure to properly instruct the jury warrants reversal of defendant-appellant's convictions. Defendant-appellant's fifth assignment of error is not well taken. B. STANDARD OF REVIEW Crim.R. 30(A), which deals with jury instructions in criminal cases, states: (A) Instructions; error; record. At the close of evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies shall be furnished to all other parties at the time of making the requests. The court shall inform counsel of its proposed action on the requests prior to counsel's arguments to the jury and shall give the jury complete instructions after the arguments are completed. The court also may give some or all of its instructions to the jury prior to counsel's arguments. The court need not reduce its instructions to writing. On appeal, a party may not assign as error the giving or the failure to give any -24- instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. Crim.R. 52(B) defines plain error as: (B) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. In State v. Long (1978), 53 Ohio St.2d 91, the Ohio Supreme Court stated in the syllabus that ordinarily, the failure to timely object to a jury instruction violative of R.C. 2905.01(A) constitutes a waiver of any claimed error relative thereto. The court found further that a jury instruction does not constitute plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial would clearly have been different. Lastly, the court stated that notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, only under exceptional circumstances and even then only to prevent a manifest miscarriage of justice. The failure of a trial court to separately and specifically instruct the jury on every essential element of each crime with which an accused is charged does not per se constitute plain error pursuant to Crim.R. 52(B). State v. Adams (1980), 62 Ohio St.2d 151. In order for plain error to apply, severe prejudice to a defendant must be shown which substantially affects that defendant's right to a fair trial. State v. Bridgeman (1977), 51 Ohio App.2d 105. -25- C. TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE DEFINITION OF A FIREARM DOES NOT RISE TO THE LEVEL OF PLAIN ERROR. In the case sub judice, a review of the trial court's instructions to the jury demonstrates that, while the trial court did define deadly weapon pursuant to R.C. 2923.11(A), the trial court failed to instruct the jury as to the definition of a firearm pursuant to R.C. 2923.11(B)(1). However, the trial court's failure to provide a complete instruction on the definition of a firearm does not rise to the level of plain error under the facts of this case. Specifically, defendant-appellant has failed to show or present any evidence to indicate that the outcome of the trial would have been different had the trial court properly instructed the jury. In addition, evidence was presented which clearly demonstrated that a firearm was used during the commission of the offenses at issue and that the firearm was operable. Accordingly, the trial court did not commit plain error by failing to instruct the jury as to the complete definition of a firearm. Defendant-appellant's fifth assignment of error is not well taken. VII. SIXTH ASSIGNMENT OF ERROR Earl Williams', defendant-appellant's, sixth and final assignment of error states: EARL WILLIAMS WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO OBJECT TO HIS MULTIPLE SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT OR TO THE TRIAL -26- COURT'S FAILURE TO DEFINE FIREARM FOR THE JURY. -27- A. THE ISSUE RAISED: EFFECTIVE ASSISTANCE OF COUNSEL Through his final assignment of error, defendant-appellant argues that he was deprived of his right to effective assistance of counsel through his attorney's failure to object to the multiple sentences for allied offenses of similar import and through his attorney's failure to object to the trial court's incomplete jury instruction regarding the definition of a firearm. Defendant-appellant's sixth assignment of error is not well taken. B. STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE OF COUNSEL In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: -28- "When considering an allegation of ineffective assistance of counsel, a two- step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141. -29- C. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Herein, a review of the record fails to disclose that the performance of appellant's defense counsel was seriously flawed and deficient resulting in prejudice to defendant-appellant. As previously indicated in this court's discussion regarding defendant-appellant's fourth assignment of error, kidnapping and aggravated robbery were not allied offenses of similar import under the facts of this case therefore trial counsel's failure to object did not amount to ineffective assistance of counsel. In addition, while it may be true that trial counsel should have objected to the trial court's failure to give a proper definition of a firearm, defendant-appellant has failed to show that the ultimate outcome of the trial would have changed had the objection been made. Therefore, defendant-appellant was not denied effective assistance of counsel and his sixth and final assignment of error is not well taken. Judgment of the trial court is affirmed in part, reversed in part and defendant-appellant is remanded for resentencing consistent with the mandates of this order. -30- This cause is affirmed in part, reversed in part and remanded for resentencing. It is, therefore, considered that said appellant and said appellee equally share the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, J. and KARPINSKI, J., CONCUR. DAVID T. MATIA PRESIDING 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 .