COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68580 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MICHAEL PERKINS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 2, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-315,875 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor PAUL J. DALEY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO, JR. Attorney at Law 75 Public Square, #1016 Cleveland, Ohio 44113-2098 TIMOTHY E. McMONAGLE, J.: Defendant Michael Perkins appeals from his convictions for aggravated robbery and having a weapon while under disability. For the reasons set forth below, we affirm. On November 10, 1994, defendant was indicted for one count of aggravated robbery, with firearm and prior aggravated felony specifications, and one count of having a weapon while under disability, with firearm and prior aggravated felony specifica- tions. Defendant pleaded not guilty to the charges. On January 25, 1995, defendant moved to dismiss the charge of having a weapon while under disability, asserting that prosecution for this offense was barred by the Double Jeopardy Clause of the Fifth Amendment. Defendant maintained that he had pleaded guilty to possession of an unregistered handgun in the East Cleveland Municipal Court and that the weapon under disability charge "is identical to the charge for which the defendant has already plead." The trial court denied the motion, and the matter then proceeded to trial. For its case, the state presented the testimony of Tanya Tell, Earl Cipriani, Joseph Lucarelli, Isaac Jones and Matthew Balli. Tanya Tell, night manager of Angela Mia's Pizza in East Cleveland, testified that as she was closing the restaurant at - 3 - around midnight on April 20, 1994, defendant ran into the store. According to Tell, defendant approached the window of the service counter, shoved a paper bag through an opening in the window and shouted at her to place the money in the bag. He then pointed a gun at her and told her that he would "blow [her] head off if [she] didn't give him the money." (Tr. 29). Tell placed money into the bag and handed it back to him. He then pushed the gun into the opening and demanded the rest of the money in the drawer. At this time, Tell observed that the gun was little and fit in his hand, but the handle of the weapon was concealed within his sleeve. Tell further testified that she placed the remaining currency in the bag and, as defendant fled, activated an alarm in an adjoining area in the restaurant, then ran to a back room. A second employee reportedly met Tell in the back room and summoned the police. The police made no arrests at this time, however. Tell swore that defendant was the man who had robbed the restaurant, and she identified him in open court. (Tr. 31-32). She then authenticated photographs from the restaurant security system which depicted a man in a plaid shirt reaching into the opening of the counter window. Tell next stated that defendant returned to the restaurant several times after the robbery. The first incident occurred one or two weeks later. At this time, defendant entered the restau- rant, walked the length of the lobby, then left. On another occasion, Tell observed defendant sitting on a brick wall directly - 4 - across the street from the restaurant. And on yet another occa- sion, defendant approached the front door of the restaurant, then left as Tell screamed for help. In the last incident, defendant attempted to enter the restaurant after closing time to pick up a sandwich which had been ordered two or three hours earlier. Tell refused to let him in and placed the sandwich on the back steps of the restaurant. He returned to the front door to pay for the sandwich, but Tell again refused to let him in. Following each of these incidents, defendant fled to an alley which was across the street from the restaurant. Tell stated that she reported the incidents to the police. They did not respond at the restaurant, however, and Tell then contacted her boss. Following the last incident, Tell simply called her boss and reported it to him. Tell later learned that an arrest had been made in connection with this matter. Thereafter, she identified defendant from a photo array and made a written statement. On cross-examination, Tell stated that she was uncertain whether a gun which was recovered from defendant at the time of his arrest was actually the weapon she had seen during the robbery. (Tr. 69). Earl Cipriani, owner of Angela Mia's Pizza, testified that there was a videotape surveillance system at the restaurant and that one of the cameras recorded the front counter area. He stated that the tape from the robbery indicated a time of 11:01 p.m. but - 5 - actually depicted events of 12:01 a.m. because he did not change the time to reflect the beginning of daylight savings time. East Cleveland Police Officer Joseph Lucarelli testified that shortly after midnight on April 20, 1994, he responded to a call regarding an aggravated robbery at Angela Mia's. Lucarelli then spoke with Tell and a second worker and obtained a description of a suspect. Lucarelli also learned that the suspect had been a customer at the restaurant. East Cleveland Police Officer Isaac Jones testified that on September 14, 1994, the owner of Angela Mia's reported seeing the suspect in the area and provided a description of his clothing. Jones subsequently located defendant across the street from the restaurant and frisked him for weapons. At that time, Jones found a .38 caliber handgun in defendant's left front pocket. East Cleveland Police Detective Matthew Balli testified that he conducted a follow-up investigation following defendant's arrest. In this connection, Balli test-fired the weapon recovered from defendant's pocket and determined that it was operable. Balli also presented Tell with a photographic line-up of suspects, and she identified defendant as the perpetrator of the armed robbery. The state next established that in May 1982, defendant plead guilty to a charge of aggravated burglary. Defendant elected to present evidence and proffered the testimony of Eric Reese. Reese testified that in April 1994, he and defendant were staying with Reese's cousin at the Burnett - 6 - Apartment Building directly across the street from Angela Mia's Pizza. He recalled seeing police at the restaurant on the night of the robbery and stated that he and defendant were socializing with friends in the hallway of the apartment at that time. He further stated that shortly before the police arrived at the restaurant, he and defendant purchased beer at a convenient store next to the apartment. Reese also swore that defendant was with him during the entire evening and that defendant did not go to the restaurant at any time. The matter was subsequently submitted to the jury, and defendant was convicted of aggravated robbery, having a weapon while under disability and the specifications. He now appeals and assigns eight errors for our review. I. Defendant-appellant's first assignment of error states: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT NOT TO BE PLACED TWICE IN JEOPARDY WHEN HE WAS SUCCESSIVELY PROSECUTED FOR POSSESSION OF A FIREARM IN THE EAST CLEVELAND MUNICIPAL COURT AND THEREAFTER HAVING A WEAPON UNDER DISABILITY IN THE COMMON PLEAS COURT. In this assignment of error, defendant-appellant complains that his guilty plea to having an unlicensed weapon precluded his conviction for having a weapon while under disability. In State v. Tolbert (1991), 60 Ohio St.3d 89, paragraph one of the syllabus, the supreme court held that in order to determine whether a subsequent prosecution is barred by the Double Jeopardy - 7 - Clause of the Fifth Amendment, a court must first apply the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 304. If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, the subsequent prosecution is barred. Id. The court noted that the Double Jeopardy Clause prohibits succes- sive prosecution for the same criminal act or transaction under two criminal statutes unless each statute requires proof of a fact which the other does not. Id. at 90. The court further noted that in some instances, successive prosecution is also barred where the second prosecution requires relitigation of factual issues already decided in the first prosecution. Id., citing Ashe v. Swenson (1970), 397 U.S. 436 (acquittal on charge of robbing one member of a poker game barred prosecution for robbing other victims where the first verdict was based on doubt that the accused was present at the robbery). In State v. Hines (1987), 39 Ohio App.3d 129, the court held that the elements of having a weapon while under disability and unlawful possession of a dangerous ordnance do not correspond to such a degree that commission of one offense will result in com- mission of the other. The court stated: Facts establishing possession of a dangerous ordnance will not establish having a weapon while under disability in the absence of proof of the additional element required for establishing having a weapon while under dis- ability, i.e., evidence of a disability as defined by R.C. 2923.13(A)(1) through (5). - 8 - Facts establishing having a weapon while under disability will not necessarily establish unlawful possession of a dangerous ordnance because having a weapon while under disability can be established where any firearm or dangerous ordnance is involved, whereas unlawful possession of a dangerous ordnance is proved only by evidence of a dangerous ordnance. "Dangerous ordinance," as it pertains to firearms, is a subclass of "fire- arm." With regard to this matter, it is clear that facts establish- ing possession of an unregistered handgun will not establish having a weapon while under disability as possession of an un-registered handgun can be shown without proving that the defendant-appellant was under legal disability at the time of such possession. The essence of the offense is that the handgun has not been properly registered. Further, the offense of having a weapon while under disability will not establish the offense of possession of an unregistered handgun as the offense of having a weapon while under disability can be shown without regard to whether the weapon is registered. The essence of the offense is that the accused is under legal disability and had a weapon. Accord State v. Rice (1982), 69 Ohio St.2d 422 (The offenses of having a weapon while under disability and carrying a concealed weapon are not allied offenses of similar import). In accordance with the foregoing, defendant-appellant's first assignment of error lacks merit. - 9 - II. Defendant-appellant's second assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ADMITTED INTO EVIDENCE EXHIBIT A, THE GUN. Within this assignment of error, defendant-appellant com- plains that there is no chain of custody to establish that the gun which Det. Balli determined to be operable was, in fact, the same weapon which Officer Jones seized from defendant-appellant at the time of his arrest. A trial court is vested with discretion to allow or disallow a given exhibit. State v. Williams (1983), 4 Ohio St.3d 53. Fur- ther, in establishing a chain of custody of physical evidence, the state is not required to negate all possibilities of substitution or tampering; it need only establish that it is reasonably certain that substitutions, alterations or tampering did not occur. State v. Moore (1973), 47 Ohio App.2d 181, 183. In this instance, Officer Jones testified that after he brought defendant-appellant to the police station for booking, he tagged the gun as evidence, logged it in the gun book and marked it with his name and badge number. Jones then obtained the keys for the gun locker from the officer in charge and placed the weapon in "safe ten," a gun locker for the detective bureau. (Tr. 119). At trial, Jones identified State's Exhibit 8 as the weapon which he had stored in the gun locker. (Tr.118) - 10 - Det. Balli testified that Exhibit 8 was the weapon which he test-fired in connection with his follow-up investigation in this matter. Balli stated that he learned that the weapon was in "safe ten." He then "got the gun, briefed the report, identified the gun, ran it through the computer, test fired it, *** logged it and put it in [the] safe." (Tr. 128) Later, in preparing for trial, Balli retrieved the weapon and brought it to court, where it was later designated State's Exhibit 8. (Tr. 129-130). In accordance with the foregoing, we cannot conclude that the trial court erred in allowing introduction of the gun. The state demonstrated to a reasonable degree of certainty that the weapon seized from defendant-appellant at the time of his arrest was not substituted, tampered with or altered. Defendant-appellant's second assignment of error is over- ruled. III. Defendant-appellant's third assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE COURT DID NOT GIVE FULL AND COMPLETE INSTRUCTIONS TO THE JURY IN THIS CASE. Defendant-appellant next complains that the trial court erred in failing to instruct the jury that defendant-appellant was pre- sumed innocent, in failing to inform the jury that no adverse conclusions could be drawn from defendant-appellant's refusal to - 11 - testify, and in failing to give a special jury instruction regard- ing identification testimony. With regard to an instruction that a defendant is presumed innocent, the United States Supreme Court has stated: In short, the failure to give a requested instruction on the presumption of innocence does not, in and of itself, violate the Con- stitution. Under Taylor [v. Kentucky (1978), 436 U.S. 478], such a failure must be evalu- ated in light of the totality of the circum- stances--including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors--to determine whether the defendant received a constitutionally fair trial. Kentucky v. Wharton (1979), 441 U.S. 786, 789. Accord State v. Reed (Nov. 27, 1991), Wayne App. No. 2643, unreported (no error in trial court's failure to instruct jury regarding presumption of innocence where court provided detailed charge upon prosecution's burden of proving each element of crimes alleged beyond reasonable doubt). In this instance, the trial court did neglect to instruct the jury regarding the presumption of innocence. Nonetheless, the court informed the jury on four occasions that in order to convict the defendant-appellant of the charges, it had to determine that the state proved each element of the offenses beyond a reasonable doubt. (See Tr. 257-258, 260, 264-265). Moreover, there was no improper argument, such as was condemned in Taylor, supra, (re- peated suggestions that petitioner's status as a defendant tended to establish his guilt). Accordingly, under the totality of the - 12 - circumstances, the court's omission did not deprive defendant- appellant of a constitutionally fair trial. This portion of the third assignment of error therefore lacks merit. With regard to the court's failure to give an instruction regarding the fact that the defendant-appellant did not testify, we note that in State v. Fanning (1982), 1 Ohio St.3d 19, paragraph one of the syllabus, the supreme court stated that upon a proper request, a trial court has a mandatory constitutional duty, and a defendant has a right under the privilege against compulsory self- incrimination guaranteed by the Fifth Amendment, to have the judge instruct the jury that the defendant's failure to testify cannot be used for any purpose. In this case, defense counsel did not request an instruction regarding defendant-appellant's failure to testify. Accordingly, there was no duty to provide the instruction. Defendant-appellant urges this court to find plain error in connection with the trial court's failure to provide the instruc- tion. In light of the trial court's repeated references to the state's burden of proof and its explicit statement that, should the state fail to meet its burden, defendant-appellant should be acquitted, we do not find that defendant-appellant was prejudiced, and we therefore do not find plain error. With regard to a special instruction regarding identifica- tion, we note that a model instruction was set forth in United - 13 - States v. Telfaire (D.C. 1972), 469 F.2d 552. In relevant part, the Telfaire instruction provides: Model Special Instructions on Identification One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The government has the burden of proving identity, beyond a rea- sonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reason- able doubt of the accuracy of the identifica- tion of the defendant before you may convict him. If you are not convinced beyond a rea- sonable doubt that the defendant was the per- son who committed the crime, you must find the defendant not guilty. Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In appraising the identification testimony of a witness, you should consider the following: (1) Are you convinced that the witness had the capacity and an adequate oppor- tunity to observe the offender? Whether the witness had an adequate opportu- nity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past. Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made. - 14 - If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed be- tween the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification. Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his tes- timony. I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty. In State v. Guster (1981), 66 Ohio St.2d 266, 270, the supreme court approved the substance of the Telfaire instruction but did not mandate the use of a special instruction regarding identi- fication. Rather, the court determined that the decision to give such an instruction was within the sound discretion of the trial court. Id., at syllabus; accord State v. Caldwell (1984), 19 Ohio App.3d 104, 107. In this matter, the trial court did not give a special in- struction regarding identification, but it did instruct the jury that it was to consider "the reasonableness of [the witness's] - 15 - testimony; the opportunity the person had to see, and hear and know that which he or she testified to; one's accuracy of memory *** so that in applying these tests you can assign to each such weight as you deem that it deserves." (Tr. 260-261). We find that, viewed in its totality, the court's charge alerted the jury of its duty to carefully weigh the reliability of identification testimony and to determine identity beyond a rea- sonable doubt. Accordingly, we find no abuse of discretion in this matter. The third assignment of error is overruled. IV. Defendant-appellant's fourth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE CONFUSING AND CONFLICTING IN- STRUCTIONS CONCERNING THE ELEMENTS OF THE OFFENSE. Here, defendant-appellant complains that the trial court erroneously charged the jury on the offense of aggravated robbery because the court first stated that defendant-appellant had to act "knowingly," then, in summarizing the elements of this offense, left out this term. He also complains that the jury was told that it must determine whether defendant-appellant obtained the proper- ty owned by another with a deadly weapon, and that the indictment set forth culpability in the disjunctive and charged defendant- appellant with "attempting or committing a theft offense *** or in - 16 - fleeing immediately after such attempt or offense upon Tanya Tell, hav[ing] a deadly weapon or dangerous ordnance ****." We note that the trial court instructed the jury as follows: Now, before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 20th of April, 1994, the defendant knowingly obtained and fled immediately after obtaining property owned by another without the consent of the owner of the property, and for the purpose of depriving that restaurant of the property, and that the defendant had a deadly weapon on or about his person or under his control at the time. (Tr. 261). Later, the court "recapped" and, in so doing, did omit the term "knowingly." In State v. Johnson (1983), 10 Ohio App.3d 14, 18-19, the court evaluated such an omission and stated: The trial court did inadvertently leave out the word "knowingly" from the instruction that a prerequisite of finding defendant guilty of aggravated robbery was that he "obtained or attempted to obtain property of some value." However, immediately following this instruction was the limitation "for the purpose of depriving the owner of that property." In other words, the complete instruction is that the defendant could be found guilty only if he obtained or attempted to obtain property belonging to another person for the purpose of depriving the owner of that property. It is improbable that one could have that purpose unless he knowingly obtained or attempted to obtain the property, even though both "purpose" and "knowingly" are expressed in R.C. 2913.02(A). In any event, the error of the trial court does not constitute plain error since it is not of such a nature that the outcome of the trial would clearly have been different had the instruction been proper. See State v. Long (1978), 53 Ohio St.2d 91 [7 O.O.3d 178]. Under the evidence involved in this case, there is little, if any, basis for finding that the persons who obtained the - 17 - property of the victim through the robbery did not do so knowingly. In accordance with the foregoing, this portion of defendant- appellant's fourth assignment of error is overruled. As to the court's failure to instruct in the disjunctive, we note that such omission, by its nature, benefits the defense. See R.C. 2913.02. The fourth assignment of error is overruled. V. Defendant-appellant's fifth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF A FIREARM SPECIFICATION WITH RESPECT TO THE AGGRAVATED ROBBERY COUNT OF THE INDICTMENT. Within this assignment of error, defendant-appellant main- tains that there was no evidence to establish that the firearm produced during the robbery was an operable firearm. In order for a defendant to be convicted of a firearm speci- fication pursuant to R.C. 2929.71, the state must prove beyond a reasonable doubt that the defendant had a firearm which was opera- ble or could easily have been rendered operable at the time of the offense. State v. Gaines (1989), 46 Ohio St.3d 65, syllabus. In State v. Murphy (1990), 49 Ohio St.3d 206, syllabus, the court rejected the contention that direct scientific evidence of opera- bility was essential to a conviction upon the specification. Rather, the court held that operability can be established beyond a - 18 - reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances sur- rounding the crime. The court then found sufficient evidence of operability where the defendant entered a store and announced that it was a holdup, produced a gun which had been wrapped in his shirt, pointed the gun at the witnesses and stated that he would kill the clerk if the clerk did not give him the money and wit- nesses to these events were able to later describe the weapon. Id. 208. In this instance, defendant-appellant ran into the store demanding money, produced a small gun which was partially con- cealed within his sleeve, pointed the gun at Tell and threatened to "blow [her] head off" if she didn't give him the money. (Tr. 29). We find this evidence sufficient to support defendant-appellant's conviction for the firearm specification pursuant to the supreme court's pronouncements in State v. Murphy, supra. Defendant-appellant's fifth assignment of error is overruled. VI. Defendant-appellant's sixth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN A MOTION FOR JUDGMENT OF ACQUITTAL WAS OVER- RULED. Defendant-appellant next asserts that his motion for acquit- tal should have been granted because he was linked to the offenses through an unduly suggestive photographic array and the surveil- lance photographs do not clearly depict the face of the gunman. - 19 - The Supreme Court of Ohio, in State v. Bridgeman (1978), 55 Ohio St.2d 261, established that a trial court shall not grant a Crim.R. 29(A) motion for acquittal where the evidence presented at trial demonstrates that reasonable minds can reach different conclusions with regard to whether the elements of the charged offense have been proved beyond a reasonable doubt. 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. Id., syllabus. With regard to defendant-appellant's assertion that the photographic array presented to Tell was unduly suggestive, we note that where a confrontation is unnecessarily suggestive and conducive to irreparable misidentification, a due process viola- tion is articulated. Stovall v. Denno (1967), 388 U.S. 293, 301. No due process violation will be found, however, where an identi- fication does not stem from an impermissibly suggestive confrontation but is, instead, the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U. S. 1, 5; State v. Moody (1978), 55 Ohio St.2d 64, 67. Thus, it is the defendant-appellant's burden to prove that the procedures were both unnecessarily suggestive and that the testimony was unreliable under the totality of the circumstances. State v. Merrill (1984), 22 Ohio App.3d 119, 121-122. - 20 - In this matter, the evidence presented demonstrated that Tanya Tell clearly observed the face and clothing of the gunman during the robbery and gave a description to Officer Lucarelli shortly afterward. Tell swore that defendant-appellant was the gunman and that she would never forget him. (Tr. 31-32). The evidence further revealed that after the robbery, Tell again recognized defendant- appellant in the area of the restaurant on at least three separate occasions and that she then called the police or her boss to report it. After each of these incidents, and after defendant-appellant had been apprehended by police, Tell identified defendant-appellant from a photographic array of six males, all of whom were of the same race and had short hair and thin mustaches. It is, therefore, clear from the state of the record that Tell's identification of defendant-appellant had its origin in her observations of him at the time of the robbery and that she reli- ably identified him on numerous occasions before the photographic array was displayed. Accordingly, we are unable to conclude that Tell's identification of defendant-appellant was the result of impermissibly suggestive police procedure. Moreover, reasonable minds could conclude from Tell's testi- mony that defendant-appellant was, in fact, the gunman who robbed the restaurant, and the trial court therefore properly denied defendant-appellant's motion for acquittal of this charge. Defendant-appellant's sixth assignment of error is therefore overruled. - 21 - VII. Defendant-appellant's seventh assignment of error states: THE VERDICTS IN THIS CASE ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED ON THAT GROUND. In this assignment of error, defendant-appellant contends that the convictions are against the manifest weight of the evidence because (1) the restaurant employees were unable to identify defendant-appellant when they viewed a book of suspect photo- graphs, (2) Angela Mia's employee Andre Curry did not testify and (3) no physical evidence was obtained. As an initial matter, we note that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 19 Ohio St.2d 230. The duty of this court is to then review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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. State v. Martin (1983), 20 Ohio App.3d 172, 175. Here, Tell credibly, consistently and certainly demonstrated that defendant-appellant committed an aggravated robbery with a weapon at the restaurant. While it was shown that neither Tell nor Curry identified defendant-appellant after viewing a book of - 22 - suspect photographs at the police station, there was evidence that defendant-appellant's photograph would have been contained in the book only if his arrest occurred in East Cleveland. Further, there was testimony that Curry assisted police in preparing a description of the suspect after the robbery (Tr. 108), but he was vacationing in Georgia at the time of the trial. (Tr. 32) Accordingly, these facts do not undermine the state's case. Moreover, although defendant-appellant presented evidence to the contrary, our review of the entire record precludes us from determining that the jury clearly lost its way and created a manifest miscarriage of justice in convicting defendant-appellant. Defendant/appellant's seventh assignment of error is over- ruled. VIII. Defendant-appellant's eighth assignment of error states: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND WAS PREJUDICED BY REASON OF ERRORS AND OMISSIONS IN THIS CASE. Defendant-appellant next complains that he was denied the effective assistance of counsel because (1) there was no probable cause to arrest defendant-appellant and his counsel did not file a motion to suppress; (2) the photographic line-up shown to Tell was unnecessarily suggestive and counsel failed to file a motion to suppress her identification testimony; (3) counsel failed to object - 23 - to the introduction of hearsay; and (4) counsel failed to request a special jury instruction regarding identification. In Strickland v. Washington (1984), 466 U.S. 668, 687, the United States Supreme Court set forth the following two-part test for evaluating claims of ineffective assistance of counsel: First, the appellant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. See, also, State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. In applying this test to the instant matter, we reiterate that Tell's identification of defendant-appellant was not the unreliable result of an impermissibly suggestive photographic array and that the trial court did not err in failing to give a special instruction regarding identification. Since these underlying grounds are without merit, defendant-appellant has failed to meet the deficient performance prong of the Strickland test with regard to contentions two and four. State v. Henderson (1988), 39 Ohio St.3d 24, 33. With regard to contention one, whether defense counsel erred in failing to file a motion to suppress, we note that the Sixth Amendment does not require defense counsel to file a motion to suppress in every instance. Kimmelman v. Morrison (1986), 477 U.S. 365, 384. Moreover, in determining whether there is probable - 24 - cause, evidence within the knowledge of the agent may be considered even though the evidence is not legally competent evidence in a criminal trial, such as hearsay. Draper v. United States (1959), 358 U.S. 307, 311; State v. Sampson (1982), 4 Ohio App.3d 287, 288. In this case, we conclude that there was probable cause to arrest defendant-appellant. It was reported to East Cleveland police that the robbery suspect was in the area of the restaurant wearing a tie-dyed shirt, and Officer Jones determined that defendant- appellant matched this description. With regard to contention four, counsel's failure to object to hearsay statements attributed to employee Andre Curry that he had witnessed the robbery, we note that this evidence was clearly improper. We are unable to conclude that it affected the outcome of the trial, however, since the defense did not dispute that a robbery took place at the restaurant but, instead, asserted that defendant-appellant was elsewhere when it occurred. Accord State v. Rockwell (1992), 80 Ohio App.3d 157, 171 (defense counsel was not ineffective for failing to object to hearsay where evidence did not alter result of trial and counsel did not object as a defense strategy). The eighth assignment of error is overruled. Judgment affirmed. - 25 - 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/appellant'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. LEO M. SPELLACY, P.J. and ANN DYKE, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .