COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68977 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JASON HOWARD, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 18, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-314816 JUDGMENT : AFFIRMED IN PART AND : VACATED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Richard J. Bombik Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Donald Green Assistant Public Defender 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- NAHRA, J.: Defendant-appellant Jason Howard appeals from his convictions and sentences for violation of R.C. 2903.01(B), aggravated murder, and R.C. 2911.01, aggravated robbery, both with firearm specifications. Appellant's convictions resulted from an incident which occurred in the city of Cleveland on September 22, 1994 at approximately 12:30 a.m. At about 11:00 p.m. that evening, fifteen-year-old Carla Richardson had walked from her house on East 104th Street a short distance to visit friends at a house on East 98th Street near Elwell Avenue. Once there, she saw her boyfriend, Tanner Greer, and his friend, Marvin Rox. Greer's car was parked on the street in front of the house. Richardson and the two men talked and smoked for a while. Eventually, when the three of them became tired of standing, they went to sit in Greer's car. Richardson sat in the front passenger side. Greer climbed into the back seat, and Rox sat in the driver's seat, his head on a pillow resting against the side window. After a few minutes, Richardson saw two people she recognized from the neighborhood walking by the car, viz., Lavelle Eaves, who was the brother of one of Richardson's girlfriends, and Nate Howard, appellant's cousin. Greer suddenly asked to be let out of the car, stating he had to go inside the house to use the bathroom. As Greer went up onto the house's porch, Richardson saw four men running toward the car, converging on it. Richardson again saw -3- that two were Eaves and Howard; moreover, although the other two wore ski masks, she knew them as Eaves' friend Wayne Walker and appellant. All four carried guns. Appellant ran up to the driver's side of the car while his cousin went to the passenger side. Appellant brandished his gun, a .22 caliber rifle, and ordered Rox and Richardson to get out. They obeyed, exiting through the passenger side. 1 When they were outside, Walker told them to "drop down." Rox laid face down on the sidewalk, but Richardson refused. As Walker and Eaves bent to search through Rox's pockets, appellant pointed his gun at Richardson and told her to get down. Instead of obeying, Richardson looked at Eaves. Eaves gave her a signal to leave. Richardson then started walking away. She had walked past about four houses when she heard Walker say "Shoot that nigger." He repeated the order; Richardson turned and heard the guns discharge, one sounding louder than the others. From her vantage point, it appeared that all four of the assailants were firing at Rox, who was still prone face down on the sidewalk. She saw Rox's body jerk with the impact of the bullets. Richardson then ran. Richardson went just up the street to Eaves' house, where she banged on the door until his sister answered. Richardson told the girl her brother had just "killed Marv;" together, they ran back to the scene. They arrived in time to see Greer checking on Rox, then 1 Quoted material is testimony of a witness at appellant's trial. -4- fleeing in his car. Shortly thereafter, an ambulance and the police arrived. Rox was pronounced dead upon arrival at the hospital. The coroner's autopsy was performed later that morning. The coroner found five entrance wounds on Rox's body. A wound to the back of the head was the lethal one since it had "destroyed the brain." The others were "flesh wounds" located on the right side near the armpit, on the back of the right arm, and on the back of the left arm. All of the bullets were recovered from the body; two fragments were also found in the victim's clothing. Although most of the bullets recovered, including the lethal one, were of .380 caliber, the fragment recovered from the left arm was consistent with .22 caliber ammunition. No items of any particular value were found with the body. Police officers examining the scene later that day found numerous spent casings in the vicinity of the body. Two were of .22 caliber. A .22 caliber bullet was also recovered from a nearby house. Richardson and some other witnesses were interviewed by police; a few days later, Richardson gave a statement. As a result of the investigation, a warrant was issued for appellant's arrest. Appellant was arrested at a friend's house on September 26, 1994. After a night in jail, and after twice being informed of his rights, appellant gave a written statement to the police. In his statement, appellant admitted he had agreed with the others to "get" Greer and Rox, who were selling drugs in Eaves' and -5- Walker's territory, "out" of the neighborhood. Appellant admitted the "plan" was to "rob" them, and admitted he carried a .22 caliber rifle during the incident. He also admitted he fired his weapon; however, he stated Eaves was the one who had killed Rox. Appellant stated he had just fired with his eyes closed when he heard the other shots. Appellant was subsequently indicted on three counts as follows: Aggravated murder, R.C. 2903.01(B), with a firearm specification; Aggravated robbery, R.C. 2911.01, with a firearm specification, and having a weapon while under disability, R.C. 2923.13. Appellant entered pleas of not guilty at his arraignment and was assigned counsel. Just prior to his jury trial, however, appellant entered a plea of guilty to having a weapon while under disability, thus removing the charge from the jury's consideration. At appellant's trial, the state presented several witnesses during its case-in-chief, including Richardson, the coroner, and several of the investigating police officers. Appellant testified in his own behalf. Appellant acknowledged his initial participation in the plan to rob Rox and Tanner, but essentially declared events had gotten out of hand, and that he never had any intent to kill anyone. The jury ultimately found appellant guilty of both of the first two counts of the indictment, including the firearm specifications. Following a presentence investigation and report, the trial court sentenced appellant as follows: on count one, three years actual incarceration to be served prior to and -6- consecutive with a term of life imprisonment; on count two, three years actual incarceration to be served prior to and consecutive with a term of ten to twenty-five years; and on count three, a term of one and a half years. The terms were to run concurrently with each other. Appellant has filed a timely appeal. I. Appellant presents three assignments of error for review. Since the arguments pertaining to the second are also pertinent to the first, these two assignments of error are addressed together as follows: I. JASON HOWARD WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN HIS COUNSEL ADMITTED MR. HOWARD'S GUILT TO ALL THE ESSENTIAL ELEMENTS OF THE INDICTMENT DURING CLOSING ARGUMENT AND WHEN COUNSEL FAILED TO OBJECT TO THE JURY INSTRUCTIONS. II. THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY THAT, WHILE THE REQUISITE INTENT TO CAUSE DEATH MAY BE INFERRED, THE INFERENCE IS NON-CONCLUSIVE. Initially, appellant argues his trial counsel was ineffective for two reasons: 1) he conceded his client's guilt on the aggravated robbery charge; and 2) he failed to object to certain portions of the jury instructions. The claim of ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation," and, in addition, prejudice arises -7- from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus; see, also, State v. Lytle (1976), 48 Ohio St.2d 391. The establishment of prejudice requires proof "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, paragraph three of the syllabus. Employing the above test, a court hearing an ineffective assistance of counsel claim must consider the totality of the evidence presented at trial. Bradley, supra, at 142. The burden is on defendant to prove ineffectiveness of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Trial counsel is strongly presumed to have rendered adequate assistance. Id.; see, also, Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Moreover, this court will not second-guess what could be considered to be a matter of trial strategy. Id. With the foregoing principles of law in mind, the record in this case with regard to trial counsel's actions fails to demonstrate counsel's performance fell below an objective standard of reasonableness. With regard to the first illustration offered by appellant to support his argument, in presenting appellant's defense, it is obvious counsel was faced with a daunting task: he was trying to prove appellant's innocence in spite of the facts that an eyewitness saw appellant taking part in the incident with a gun in his hands, and appellant himself admitted his participation in the -8- armed robbery in his statement to the police. Viewing the case as a whole, therefore, the evidence of appellant's guilt was overwhelming. Clearly, counsel determined that under the circumstances and with limited options, the best strategy was to present a defense consistent with appellant's statement and only to the more serious charge of aggravated murder; the focus was thus on appellant's specific intent during the crime and emphasized appellant's "truthfulness" when confronted with the evidence against him. From the transcript of appellant's trial, it can be seen counsel was well-prepared, knowledgeable and well-versed with regard to the matters that were presented at trial. Moreover, his cross-examination of the state's witnesses indicates he was often able to elicit testimony consistent with his theory of the case. Counsel's decision to concede appellant's guilt on only the aggravated robbery charge, hoping the jury would find he lacked the specific intent to kill Rox, was therefore a matter of trial tactics which at this juncture may not be faulted. For these reasons, this court finds State v. Martin (1987), 37 Ohio App.3d 213, upon which appellant relies to support his initial contention, to be inapposite. From a review of the complete record, this court cannot state that counsel's actions in presenting appellant's defense were either inappropriate or prejudicial. State v. McClellan (1994), 93 Ohio App.3d 315; State v. Smith (1991), 75 Ohio App.3d 73; State v. Bell (1990), 70 Ohio App.3d 765. -9- As the court admonished in State v. Hart (1988), 57 Ohio App.3d 4, effective assistance of counsel does not guarantee favorable results. Moreover, a guilty verdict at trial without more does not guarantee an appellant will prevail on appeal when he challenges the professional judgment and tactics of his trial attorney. Id. Appellant next challenges his counsel's failure to object to two portions of the jury instructions. In the alternative, he asserts the jury instructions were so improper as to constitute plain error on the part of the trial court. In considering appellant's argument, this court is mindful that in reviewing jury instructions each instruction must be viewed in the context of the overall charge, not merely judged in artificial isolation. State v. Price (1979), 60 Ohio St.2d 136. Moreover, to constitute plain error, it must be obvious that, "but for the error, the outcome of the trial clearly would have been otherwise." State v. Underwood (1983), 3 Ohio St.3d 12 at the syllabus. Appellant first contends the inclusion of the words "failure to act" in two portions of the instructions led the jury to believe appellant had a duty to take some action to stop the others from shooting Rox in order to be found innocent of complicity in the crimes. This court has reviewed the instruction in context, however, and does not agree. The trial court thoroughly explained the requirement that appellant "actively participate" in the aggravated murder and the -10- aggravated robbery. Thus, appellant cannot demonstrate either that counsel was ineffective for failing to object to this portion of the charge or that the outcome of his trial would have been different but for the instruction. Similarly, although appellant contends the trial court failed 2 to comply with R.C. 2903.01(D), a review of the trial court's instructions in this case fails to support appellant's contention. To comport with R.C. 2903.01(D), the trial court need not specifically state the phrase "the inference is nonconclusive" in its instructions to the jury. State v. Coleman (1988), 37 Ohio St.3d 286, 290. In this case, the jury was properly instructed on the culpable mental state required. See, e.g., State v. Scott (1980), 61 Ohio St.2d 155. Taken as a whole, the instructions do 2 R.C. 2903.01(D) states in pertinent part as follows: (D) No person shall be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another. * * * If a jury in an aggravated murder case is instructed that a person who commits or attempts to commit any offense listed in division (B) of this section may be inferred, because he engaged in a common design with others to commit the offense by force or violence or because the offense and the manner of its commission would be likely to produce death, to have intended to cause the death of any person who is killed during the commission of, attempt to commit, or flight from the commission of or attempt to commit the offense, the jury also shall be instructed that the inference is nonconclusive, that the inference may be considered in determining intent, that it is to consider all evidence introduced by the prosecution to indicate the person's intent and by the person to indicate his lack of intent in determining whether the person specifically intended to cause the death of the person killed, and that the prosecution must prove the specific intent of the person to have caused the death by proof beyond a reasonable doubt. -11- not support a conclusion that the jury could infer a defendant could be presumed guilty of aggravated murder for merely sharing a common purpose in committing the underlying felony. State v. Coleman, supra; State v. Rogers (Mar. 4, 1993), Cuyahoga App. No. 62014, unreported. Therefore, the instructions neither constitute plain error nor support appellant's argument that counsel was deficient. Appellant can neither demonstrate trial counsel's actions fell below an objective standard of reasonable representation nor that he was prejudiced by trial counsel's actions; therefore, appellant has failed to support his claims he was denied his constitutional right to effective assistance of counsel. Furthermore, the trial court committed no error in instructing the jury in this case. Accordingly, appellant's first and second assignments of error are overruled. II. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN SENTENCING JASON HOWARD TO TWO SEPARATE THREE-YEAR TERMS OF ACTUAL INCARCERATION WHEN ONLY ONE THREE-YEAR TERM OF ACTUAL INCARCERATION SHOULD HAVE BEEN IMPOSED FOR THE FIREARM SPECIFICATION. Appellant argues a portion of the sentence imposed upon him was contrary to the mandate of R.C. 2929.71(B). This argument has merit. R.C. 2929.71(B) states: 2929.71 Additional three years of actual incarceration for offenses involving a firearm. -12- (B) If an offender is convicted of, or pleads guilty to, two or more felonies and two or more specifications charging him with having a firearm on or about his person or under his control while committing the felonies, each of the three-year terms of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code, unless any of the felonies were committed as part of the same act or transaction. If any of the felonies were committed as part of the same act or transaction, only one three-year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, or prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code. (Emphasis added.) In this case, the jury convicted appellant of the aggravated robbery and aggravated murder of a single victim. The two crimes committed upon Marvin Rox clearly were committed "within a continuous time sequence, had a common objective, and developed from a single criminal adventure." State v. Carpenter (Jan. 2, 1986), Cuyahoga App. No. 49951, unreported. Thus, only one three- year term of actual incarceration was appropriate. State v. Gregory (1993), 90 Ohio App.3d 124; State v. Moore (1984), 20 Ohio App.3d 75; cf., State v. Wills (1994), 69 Ohio St.3d 690; State v. White (1991), 71 Ohio App.3d 550. Moreover, since a trial court may impose a sentence only in accordance with statutory mandates, the fact that the two three- year terms imposed were to run concurrently does not cure the error. See, e.g., State v. Gaunt (Dec. 29, 1994), Cuyahoga App. -13- No. 66791, unreported, at 9; State v. Law (Apr. 4, 1991), Cuyahoga App. No. 58326, unreported. Therefore, the trial court erred in imposing two separate three-year terms of actual incarceration in this case. Appellant's third assignment of error is accordingly sustained. One of the two three-year terms of actual incarceration to which appellant was sentenced is vacated. In all other respects, appellant's convictions and sentences are affirmed. -14- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 time .