COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69010/69011 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CORDELL YOUNG : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 22, 1996 CHARACTER OF PROCEEDING Criminal appeals from Court of Common Pleas Case Nos. 313543/316586 JUDGMENT Affirmed in part; vacated in part. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender ROBERT J. CHRISTYSON, JR., ROBERT R. CLARICO, Assistant Asst. Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Cordell Young appeals from his convictions following a jury trial for aggravated murder (R.C. 2903.01), two counts of aggravated robbery (R.C. 2911.01) and having a weapon under disability (R.C. 2923.13). Defendant contends that the convictions were not supported by sufficient evidence, were against the manifest weight of the evidence and he was excessively sentenced for the firearm specifications. Defendant has also filed a pro se brief raising due process assignments of error which we will address. We find merit to the appeal and affirm in part and vacate in part. This case arose out of events transpiring on October 31, 1994, when Joseph Williams was shot to death near the Valley View housing complex. A jury trial was conducted on March 21, 1995. The State's testimony is summarized below. Nicquis Thomas testified that on October 31, 1994, he was walking to the Valley View housing complex with Joseph Williams and Edward Simmons. Thomas was accosted by a male wearing a dark jacket, a hood, a curly "afro" wig, and a ski mask that covered the bottom portion of his face. The masked male grabbed Thomas around the neck and told Williams and Simmons to get on the ground. Simmons ran, and the masked man pulled a handgun and fired one shot in the air. The masked male ordered Williams and Thomas to lean against a car, and searched them. He took five bus tickets from Thomas. - 3 - The masked male asked Williams for money, but Williams told him that he had none. An argument ensued, and Williams was shot once in the chest. Thomas started to run, and as he did, the assailant fired another shot into William's chest. Thomas ran to Simmons' house. Simmons and Thomas returned and found Williams on the ground. Thomas also identified the wig and jacket that the assailant had on which was later found in defendant's house. Edward Simmons testified and generally corroborated Thomas' testimony, but added that he had previously seen the defendant wearing the black mask on three or four occasions. Although he had known defendant for three years, and selected him from a photo array, Simmons nevertheless admitted that he does not know who shot Williams because the assailant was wearing a mask and wig. Yanko Mansaray testified that on October 31, 1994, at 6:10 p.m., he, Kevin Woods and Darnell Phillips were walking up Starkweather Avenue and saw defendant walking with another male. Defendant was wearing a black jacket, a hooded sweatshirt, a brown wig and a mask pulled over his chin. He said he knew the defendant for about six months because they played basketball at the same place. Timika Bohanon, defendant's ex-girlfriend, testified that on October 31, 1994, she went to defendant's house to take her cousin trick or treating. At that time, defendant was wearing black and white tennis shoes, black pants, a black hooded sweater, a black - 4 - curly wig and a black mask which she had bought for him "to keep him warm." That same evening she was told that Williams had been shot. After hearing this news, she took her cousin home and proceeded to her mother's house on Starkweather. She stated as she was walking on Starkweather around seven or eight o'clock, she saw the defendant wearing the same clothes and mask with a Carhart coat on, but without the wig, running up St. Olga Street by Starkweather. She called out his name and defendant turned around in response. Ms. Bohanon further testified that the defendant owned a gun which she described as a small gray revolver. Detective Gary Garisek of the Cleveland Police Department testified that Williams was reportedly shot at 6:35 p.m. Garisek arrived at the scene at 6:40 p.m. with Detective Bornfeld. On November 1, 1994, he received information that defendant may have been involved in the shooting; that he went to defendant's house and was given permission by the mother to search the house; that he found a black Carhart coat, a black afro wig, and a brown afro wig; but he did not find a gun or mask. Dr. Heather Raaf performed the autopsy on Williams and testified that two gunshot wounds to the chest caused his death. Dr. Jeffrey Wagner of the Coroner's Office Trace Evidence Unit testified that Williams' hands contained gunshot residue, which would indicate that he either fired a weapon, or was within a couple feet of a fired weapon; that the wounds to his chest were - 5 - the result of a gunshot from a distance of two to three feet or greater; and defendant's clothing contained no gunshot residue nor blood. Dr. Wagner, however, on re-direct stated that it was "very rare" that nitrates are detectable on the sleeve of the person firing a gun. Three witnesses testified for the defense. John Johnson testified that on October 31, 1994, defendant arrived at Johnson's house at 5:00 p.m.; he was wearing a brown wig, white shirt, brown khaki pants, black and white shoes, and a black Carhart jacket; that at approximately 5:50 p.m., defendant told Johnson that he had to go home to get money to catch the bus to the Youth Center; that Johnson waited five minutes then started toward the bus stop and saw defendant walking down the sidewalk; that he was surprised to see the defendant back so quickly and that the defendant looked "bad," like he had just finished running or something. They then both rode the bus together to the Youth Center. Lee McPherson testified that on October 31, 1994, he was working the front door at the Sara Moll Youth Center and admitted people as they signed in; that defendant arrived with Johnson at 7:05 p.m.; that he was wearing a brown wig; that Messrs. Young and Johnson left the Youth Center at 9:00 p.m. Johnson disputed the above testimony stating that Mr. McPherson was not at the door. Craig Vincent testified that on October 31, 1994, he was also working at the Sara Moll Christian Youth Center watching the door during basketball games from 1:00 p.m. to 11:00 p.m.; that he - 6 - locked the doors at 7:15 p.m. to make sure that none of the teenagers left the building and that Vincent saw defendant at the Youth Center on the basketball court after 7:15 p.m., but he did not remember defendant wearing a wig or mask or carrying a gun. The court denied defense motions for acquittal pursuant to Crim. R. 29 after the State rested, and again at the close of all evidence. The jury returned a verdict of guilty on all counts and specifications. The court denied defense counsel's motion for a new trial. The trial court sentenced defendant Young to a term of incarceration of twenty years to life for aggravated murder, consecutive to three years actual time for the gun specification; five to twenty-five years on two counts of robbery, consecutive to three years actual time for the gun specification and one and one- half to five years on having a weapon under disability, consecutive to three years actual time for the gun specification; all sentences to run concurrently. Further, in Case No. CR-313543, in which he had previously entered a guilty plea, the court sentenced defendant Young to a one year term of incarceration, concurrent with his sentence in Case No. CR-316586. We will address the assignments of error in the order asserted. - 7 - I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. We will treat this as a combined challenge to the sufficiency of the evidence and the weight of the evidence. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 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. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) - 8 - Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. Defendant's basic theory is that Timika Bohanon's testimony was inconsistent and incredible. Defendant cites several examples of contradictions in Bohanon's testimony. However phrased, this argument goes to the credibility of Ms. Bohanon's testimony. Determinations about the credibility of witnesses are primarily for the fact-finder. State v. DeHass (1967), 10 Ohio St.2d 230, 231. If conflicts in the evidence can be resolved differently by reasonable minds, then it is up to the fact-finder - 9 - to determine what actually occurred. See State v. Jenks (1991), 61 Ohio St.3d 259, 279. Ms. Bohanon testified that on October 31, 1994, both before and after the shooting, she saw the defendant in the same clothes, wig and mask that she had bought for him. The second time she saw defendant he was running away from the scene of the shooting and she recognized him, not just from his distinctive shoes, but also because she called his name and he responded. Defendant argues that no one positively identified him as the assailant. The robbery victims and other witnesses testified the shooter was masked and took other measures to conceal his identity. Nevertheless, the testimony is clear as to what the assailant was wearing and also that the defendant was seen in clothes, mask and wig matching the description of the assailant before and after the crime, and close to the area in which it happened. Some of those items of clothing were recovered from the defendant's house the next day. The evidence was both sufficient to establish the elements of the crimes and of sufficient weight to establish that defendant was the masked male who shot Williams. The verdicts were not against the manifest weight of the evidence. Assignment of Error I is overruled. - 10 - II. THE TRIAL COURT ERRED IN SENTENCING CORDELL YOUNG TO THREE SEPARATE THREE-YEAR TERMS OF ACTUAL INCARCERATION WHEN ONLY ONE THREE-YEAR TERM OF ACTUAL INCARCERATION SHOULD HAVE BEEN IMPOSED FOR THE FIREARM SPECIFICATION. Defendant Young was sentenced on three firearm specifications. He was convicted for one count of aggravated murder, two counts of aggravated robbery and one count of having a weapon under a disability, all of which were committed within the same time frame. Defendant was sentenced pursuant to R.C. 2929.71(B) which states: 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 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 terms 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. Defendant contends that at most he should be sentenced to only one firearm specification because the various crimes of which he was convicted resulted from one single, continuous act or transaction. We agree with this conclusion. - 11 - The Ohio Supreme Court has recently defined "transaction" as used in R.C. 2929.71(B) in State v. Wills (1994), 69 Ohio St.3d 690, 691, in the following passage: We hold that the separate robberies of Stone and Thomas were separate transactions within the meaning of R.C. 2929.71(B). When it enacted R.C. 2929.71, the General Assembly intended to separately punish each criminal transaction committed with the assistance of firearms. Each separate criminal transaction performed with the assistance of a firearm is punishable by a mandatory three-year sentence. The language in R.C. 2929.71(B) instructs the courts on how to treat those cases where multiple offenses are committed with the assistance of a firearm by the same defendant. The statute states that separate mandatory sentences are appropriate unless the separate punishable criminal offenses were part of the same transaction or act. This court has never defined the word "transaction" as it is used in R.C. 2929.71(B). To do so, we adopt the test used by the Court of Appeals for Summit County, which defined "transaction" as a "'series of continuous acts bound together by time, space and purpose, and directed toward a single objective.'" State v. Caldwell (Dec. 4, 1991), Summit App. No. 14720, unreported, at 26-27, 1991 WL 259529. By applying this standard to the present case, we conclude that the armed thefts of Stone and Thomas were not part of a series of continuous acts. Wills and his cohorts singled out Stone first, surrounded him, pulled out a gun and then under threat of force robbed him. After completing this task they then targeted Thomas, surrounded him, beat him, pulled out a gun, and then robbed him. Wills should serve no less time because of the coincidental proximity of his two victims. - 12 - Although there were two distinct robberies in the Wills case, we do not find the facts of the instant case fall within the result in Wills. In the instant case, defendant held up Williams, Thomas and Simmons simultaneously. Simmons ran off and escaped. At that, defendant pulled out his gun and fired a shot in the air. Then he ordered Williams and Thomas to lean against a car while he searched them. He took bus tickets from Thomas. He asked Williams for money; he said he had none; an argument ensued and Williams was shot in the chest. This presents a series of continuous acts bound together by time, space and purpose, and directed toward a single objective, i.e., the simultaneous robbery of the two victims. It is not unlike the circumstances in State v. Shaw (Jan. 26, 1989), Cuyahoga App. No. 54978, unreported, where the defendant and an accomplice were robbing a bank when the bank manager happened upon them. The defendants were charged with aggravated robbery, kidnaping, aggravated burglary, felonious assault and possession of criminal tools, all with gun specifications. In finding that the sentencing could only be based on one gun specification, this Court stated at 8-9: Thus, R.C. 2929.71(B) provides that only one three-year term of actual incarceration can be imposed by the trial court where the felonies charged were committed as part of the same act or transaction. This court, with regard to the imposition of multiple three-year terms of actual - 13 - incarceration pursuant to R.C. 2929.71(B) held in State v. Patterson (Nov. 13, 1986), Cuyahoga App. No. 51231, at p. 18, that: "Patterson argues that the trial court should have sentenced him to only one three-year term of actual incarceration instead of three three- year terms of actual incarceration since the murder of Albert Bullock and the attempted murder of Cheryl Bullock and Tommie Gary were part of the 'same act or transaction.' That phrase is not defined in the statute. However, in State v. Carpenter (Jan. 2, 1986), Cuyahoga App. No. 49951, unreported, this Court adopted the definition set forth by the Second District Court of Appeals in State v. Fudge (March 29, 1984), Clark App. No. 1873, unreported, which interpreted the word 'transaction' to be 'sufficiently flexible to comprehend any number of criminal offenses so long as such offenses have a logical relationship and are committed within a continuous time sequence.' Id. at p. 3. Motivation is also a factor to be considered." * * * The trial court erred in sentencing the appellant to four separate three-year terms of actual incarceration. Only one three-year term of actual incarceration may have been imposed by the trial court. We likewise conclude that in the instant case only one three- year term of actual incarceration may be imposed on the gun specification. See, also, State v. Howard (Jan. 18, 1996), Cuyahoga App. No. 68977, unreported. Accordingly, we affirm the gun specification sentence on count one (aggravated murder) and vacate the gun specification sentence imposed on counts two, three and four. Assignment of Error II is sustained. - 14 - Defendant's pro se brief alleges four supplemental assignments of error which we will address in the order asserted. I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION, ART. I, SEC. TEN OF THE OHIO CONSTITUTION, WHICH DENIED APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT. Defendant sets forth several grounds upon which he claims counsel was ineffective. The Ohio Supreme Court in State v. Bradley (1989), 42 Ohio St.3d 136, paragraphs one and two of the syllabus, set forth the standard to be applied by this Court in reviewing an ineffective assistance of counsel claim: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. State v. Lytle (1976), 42 Ohio St.2d 391; Strickland v. Washington (1984), 466 U.S. 668, followed. 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 counsels' error, the result of the trial would have been different. Defendant argues that his trial counsel was ineffective because he should have moved to bifurcate his prior conviction for drug trafficking from the count charging him with having a weapon while under disability. He also claims counsel was ineffective because he stipulated to the defendant's prior conviction at trial. This argument has no merit. A review of the record indicates that - 15 - defense counsel did move to bifurcate the prior conviction from trial and it was denied. Since the bifurcation was denied and defendant had pled guilty to the prior drug offense, defense counsel chose to stipulate to the prior conviction. Counsel chose stipulation rather than going into the prejudicial details of the prior convictions. Trial strategy choices by counsel must be respected. Strickland v. Washington (1983), 466 U.S. 669, 681. Defendant also argues that counsel was ineffective because he failed to ask for a specification regarding when the crime occurred in the bill of particulars. Defendant argues that since he had an alibi of being at the youth center, defense counsel should have requested this information. Since the bill of particulars had the time and date in it, and defense counsel filed a motion of alibi which was granted by the court and evidence of defendant's alibi was presented at trial, defendant was not prejudiced by this failure to request the information. Defendant argues that counsel was ineffective for not objecting to the court's instruction that the prosecution did not have to prove the exact date of the crime, but only had to show it happened reasonably near the date claimed in the indictment. The trial court gave the instruction regarding the date based on 4 OJI 407.10. There was no error. However, even if the court did err, it was not prejudicial as there was no dispute regarding when the crimes occurred. Furthermore, "[a] jury charge must be viewed in the context of the - 16 - overall charge rather than in isolation." State v. Lewis (1993), 67 Ohio St.3d 200, 203. Moreover, the court instructed the jury about defendant's alibi just prior to making this statement and properly instructed the jury that if they were "not convinced beyond a reasonable doubt that defendant was present at the time in question, than you must return a verdict of not guilty." (TR. 325). Defendant also argues that defense counsel was ineffective because he failed to object to the court's instruction that a unanimous verdict was needed and that the juror's should not obstinately stand on their own opinion. A review of the jury charge in its entirety reveals the court properly instructed the jury that it takes a unanimous verdict to find defendant guilty and that the jury should listen to each other's reasoning and arguments while deliberating. Therefore, defense counsel was not ineffective in not objecting to these charges. Defendant finally argues that counsel failed to object to comments made by the prosecution in closing argument. A review of the state's closing argument does not reveal prosecutorial misconduct except for the prosecution's statement that the gunshot residue on the victim's hands was due to him holding his hands near the gun in a position of praying for his life. However, we cannot say given the evidence presented at trial that the verdict would have been different if the prosecution did not make this statement. State v. Smith (1984), 14 Ohio St.3d 13, 15. This assignment of error has no merit and is overruled. - 17 - II. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO BIFURCATE THE SPECIFICATION. Although defendant alleges in his assignment of error caption that the court failed to bifurcate the specification, his argument alleges the court erred in failing to bifurcate his prior conviction from the charge of having a weapon while under disability. This argument has no merit. Where a prior conviction is an element of the offense, it cannot be bifurcated. State v. Wilcox (July 8, 1993), Cuyahoga App. No. 63112, unreported; State v. Ireson (1991), 72 Ohio App.3d 235, 239. This assignment of error is overruled. III. CUMULATIVE EFFECT OF ERRORS COMMITTED, DENIED APPELLANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT. Based on our disposition in the above assignments of error, this assignment of error is moot and need not be addressed. App.R. 12(A)(1)(c). IV. OTHER ERRORS APPEAR IN THE RECORD THAT ARE NOT SPECIFICALLY RAISED AND SET FORTH ON THIS APPEAL BUT CONSTITUTE "PLAIN ERROR" AFFECTING SUBSTANTIAL RIGHTS PURSUANT TO THE OHIO RULES OF CRIMINAL PROCEDURE, RULE 52(B). SEE: ANDERS V. CALIFORNIA, (1996) 386 US 738. This assignment of error has no merit. Pursuant to App.R. 12(A)(2): The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails - 18 - to argue the assignment of error separately in the brief, as required under App.R. 16(A). See, also, North Coast Cookies v. Sweet Temptations (1984), 16 Ohio App.3d 342, 343; Foster v. Board (1977), 53 Ohio App.2d 213, paragraph six of syllabus. This assignment of error is overruled. Judgment affirmed in part and vacated in part. - 19 - It is ordered that appellee and appellant share the costs herein taxed equally. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, 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. JAMES D. SWEENEY, P.J., and DYKE, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .