COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69157 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION LARRY PHELPS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 19, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-296956 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: L. Christopher Frey Randi Ostry Lehoty Assistant County Prosecutors Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Donald Butler 75 Public Square Suite 1111 Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Larry Phelps, is appealing his conviction for aggravated murder, R.C. 2903.01, with a violence specification, aggravated robbery, R.C. 2911.02 and kidnapping, R.C. 2905.01. For the following reasons, we affirm. Appellant's wife, Laura Phelps, testified that in 1985 when the alleged crimes took place, she was working as a prostitute and appellant was her pimp. Appellant also worked as a repo man and operated a karate school. On the evening of August 26, 1985, Laura was working the streets, when she was approached by a male, later identified as the victim, Merle Johnston. Johnston approached her and requested an act of bondage, but did not have any money. Johnston approached her again in the early morning hours of August 27, and then followed Laura as she solicited. Laura drove home and parked her car in the backyard. As she was walking from the backyard to the front door, she noticed the victim's blue car parked on the street in front of her house. She went upstairs to take a bath and smoke marijuana. She went downstairs and saw the same man who solicited her earlier, talking to her husband in the living room. Her husband hit the man with his fist, in the man's shoulder or face. The man tipped over and then got back up. The following morning, Laura took her child to the first day of kindergarten. Later that day, she saw the same individual sitting on the basement floor, leaning against a pole. Appellant -3- told her to stay out of the basement, and that they "were going to give him a ride, drop him off." The man was over six feet tall, and one foot taller than herself. Laura is 5 feet 10. Later, Laura returned to the basement. She observed appellant giving the man a "bear hug" around his chest, and urging him toward the steps. Appellant gave the man a garbage bag, and told the man to tie it around his eyes as a blindfold, which the man did. Laura went upstairs and did not see the victim again. That night, appellant and Laura drove on the highway. Appellant told her they were driving to Cincinnati. Laura was drunk and smoking marijuana. At some point, Laura fell asleep, and woke up when the car was stopped. Appellant was outside of the vehicle. Laura fell asleep again. They returned the next day in the early morning hours. Three weeks later, Laura was working the streets, when Officer Santiago stopped her for making a U-turn. Officer Santiago informed her that the car she was driving belonged to Merle Johnston. Appellant crossed the street and showed Officer Santiago repossession papers for the car. Laura was ticketed for the U- turn and having her license plates on the car. The car was towed several weeks later from the parking lot at Metro Hospital. In 1988, appellant beat Laura, requiring her to receive medical treatment. Laura wanted appellant away from her, so she told Detective Ernie Hayes and Assistant Prosecutor Buelow what happened in 1985. They did not believe her story, which she embellished in hopes of entering the witness protection program. -4- On March 23, 1993, Laura gave a written statement to the police, with her lawyer present. She made some untruthful statements because Detective O'Malley threatened to take her children away and fry her in the electric chair. The untrue portions of her statement include: Laura saw appellant go out to the victim's car and talk to him; when the victim was in the basement she saw appellant hit and punch the victim; the guy dropped to the floor and appellant stated he had to be dropped off before he came to; appellant then hit Laura; the children were in the car during the drive; appellant threatened to kill her; appellant told her to bring the victim home. Both appellant and Laura were indicted for the murder of Merle Johnston. Laura testified that the prosecutors offered her immunity in this case, another murder case, and an arson case, if she would waive the spousal privilege and testify against appellant. The prosecutors also agreed to drop the death penalty specifications against appellant. Laura stated she had been convicted of forgery and uttering. She filed false charges against her husband twice before, but went to court and recanted. On cross-examination, the defense attorney, Mr. Shaughnessy, questioned Laura concerning a 1993 tape recorded phone conversation between himself and Laura. Laura agreed that a transcript of the conversation was accurate. Laura told Shaughnessy that the police showed her a picture of the victim, and she never saw the man in the picture. The person in her home on August 27 was black, while -5- the victim was white. Her entire statement to the police was fictitious. A black man did come to her house on August 27 for a drug deal with appellant. On re-direct, Laura stated that while she was not sure if the man in her home on August 27 was light-skinned black or white, the man was the same man who solicited her for sex. A picture of the victim's vehicle looked like the vehicle she received the ticket in, and the vehicle she saw the victim driving. Veronica Johnston, the victim's mother, testified the victim lived with her in Willoughby Hills. She last spoke to Merle Johnston on August 26, 1985. Several days later, she received a phone call from a black male, asking for Paulette Johnston, Merle's wife. The caller told Veronica Johnston that a check for $1,500 wasn't good. The caller gave his address as a hotel on East 35th and Euclid. After her son's disappearance, she received a credit card statement with a dishonored check for $350 made out to "Larry Phelps". Ned Levi, a friend of the victim's, testified that he had drinks with the victim on August 26-27, from 9 p.m. to 1 a.m. Johnston was intoxicated, but refused Levi's offer of a ride home. Johnston stated, "I'm hunting." Max Condelli, owner of American Leasing testified he leased a blue Oldsmobile Cutlass to Merle Johnston on August 6, 1985. Condelli never used repo men. Lieutenant Dave Paterson of the Willoughby Hills police testified that the Cleveland police notified him that they had -6- located the victim's car and Laura Phelps was driving it. Paterson had the vehicle towed from the MetroHealth parking lot. Larry Phelps told him he was hired by a white man to collect a debt from Merle Johnston, and Johnston gave Phelps the car as collateral. Detective Hayes of the Cleveland Police Department testified that he interviewed Laura Phelps on February 16, 1988 and the case was referred to the Homicide Unit. John Fransen, who was a sergeant in the Homicide Unit, discussed the case with Hayes. As a result, a teletype was sent out through the Pennsylvania State Police, describing the missing victim. Corporal Charles Lewis of the Pennsylvania State Police testified that skeletal remains were found in November, 1988, in a remote rural area near Erie, Pennsylvania. The remains were located ten yards from the road, down a steep hill. A gray plastic bag was around the skull, and a belt was tied around the lower legs. Professor Murray Marks, an anthropologist from the University of Tennessee determined that the skeleton belonged to a white male, age 45-55 years, 5'8" to 5'11". There were fractures in the sternum and ribs, consistent with a very forceful direct blow to the rib cage, such as a kick to the sternum or a "bear hug". The jawbone had a hairline fracture, and there were fractures to the thinbones of the skull. These injuries were consistent with a blow to the jaw underneath the chin. The fractures occurred within two or three weeks before death. -7- Dr. Mertz, a forensic dentist, testified that he received the skull from the Pennsylvania Police. Dr. Mertz discussed the case at a conference with Detective Puskar of the Cleveland Police. As a result, Dr. Mertz matched dental X-rays of Merle Johnston to the skull. Dr. Mertz observed two missing crowns, broken and missing teeth. The teeth had vertical cracks consistent with an extremely forceful blow upwards to the lower jaw. The injuries were not consistent with a fall, and were sustained near the time of death. Detective O'Malley of the Cleveland Police testified that the skeleton was found not far from the highway. He did not threaten Laura Phelps when she made her statement. Dr. Merle Wood, Coroner of Erie County, testified that the cause of death was homicide violence , undetermined origin. The victim was discovered with his legs bound, with a plastic bag on his head and with severe fractures. Dr. Elizabeth Balraj, Coroner of Cuyahoga County, concurred. Dr. Balraj stated that the fractures to the jaw indicate possible damage to the brain and spinal cord that was possibly fatal. The sternum and rib fractures indicated possibly fatal damage to the heart or lungs. The defense presented four witnesses. Carol Savage, principal of Urban Community School testified that there was no Akeesha Phelps in the school's records. Ms. Savage did not look under Laura's maiden name, Dumchas. Valorie Wilson, Shaughnessy's secretary, testified that Laura Phelps called Shaughnessy the evening after the first day of trial. -8- Laura had testified that Shaughnessy contacted her to convince her to invoke the spousal privilege. Laura's supervisor from Second Chance testified Laura was terminated for stealing. Laura testified she was terminated because she was indicted in this case. The supervisor also testified that Laura had a poor reputation for truthfulness. Allen Robinson testified that he used to watch Laura for appellant when Laura worked the streets. When Officer Santiago stopped Laura, she was driving a little blue car. Appellant never spoke to Officer Santiago. Robinson was in jail for grand theft. I. Appellant's first assignment of error states: DEFENDANT-APPELLANT'S CONVICTIONS WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence the trier of fact 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, citing Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, reliable or unreliable, certain or uncertain, conflicting, fragmentary, whether a witness was impeached and whether a witness had an interest in testifying. -9- State v. Mattison (1985), 23 Ohio App.3d 10. However, the credibility of a witness is primarily an issue for the trier of fact, who observed the demeanor of the witness. State v. Antill (1964), 176 Ohio St. 61. A reviewing court will not reverse a jury verdict where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. Appellant contends that there was no credible evidence linking him to kidnapping, murder and robbery of Merle Johnston, because the testimony of Laura Phelps was not credible. Laura Phelps could not identify or describe the victim, and was unsure of the victim's race. However, she was certain the man in her home was the same man who solicited her earlier. Laura also recognized the victim's car. Laura stated that some of the details of her statement to the police were false, but the basic story was true. Laura told Shaughnessy that the entire statement was false. On the stand, she did not contradict herself as to the basic story that a man solicited her, followed her home, appellant hit the man, appellant stated they were going to drop the man off, and appellant and Laura went for an overnight drive. Laura had filed false charges against her husband twice before. Her supervisor testified Laura had a poor reputation for truthfulness. Detective O'Malley contradicted Laura's testimony that O'Malley threatened her, and Laura's supervisor contradicted Laura's statement of why her employment was terminated. -10- Nevertheless, Laura's testimony was corroborated by other evidence. The medical evidence concerning the location of the fractures was consistent with Laura's testimony. A garbage bag was found on the skull of the victim. Due to Laura's interview with Detective Hayes, a bulletin was sent to the Pennsylvania state police. The victim's body was found in Pennsylvania. Laura was in possession of the victim's car. The victim's mother testified to a credit card check of the victim's made out to Larry Phelps. Although the record contains evidence from which a trier of fact could conclude Laura was not credible, a reasonable trier of fact could find Laura was credible. She maintained her basic story, which was corroborated by other evidence. The jury did not lose its way in believing Laura's testimony. There was sufficient, competent, credible evidence to support the convictions. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: PROSECUTORIAL MISCONDUCT DENIED APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Appellant asserts the following conduct of the prosecutor was improper: (1) procuring an indictment based on a fabricated statement, i.e. Laura's March, 1993 statement to the police; (2) overcharging appellant and charging his wife to coerce the wife to testify; (3) the prosecutor presented evidence of appellant's past domestic violence, pimping and drug trafficking; (4) the prosecutor allowed false testimony to go uncorrected. -11- The test for prosecutorial misconduct is whether the prosecutor's remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St.3d 13. Although Laura stated that certain details of the March 1993 statement were false, the statement was, according to Laura, basically true. Nothing on the record showed that appellant was overcharged or that Laura was wrongfully charged. The prosecutor's presentation of other acts evidence was not improper, as will be discussed below. The record does not show the prosecutor allowed false testimony to go uncorrected. The acts of the prosecutor did not amount to misconduct. Additionally, there were no objections on the record to any of the above, so any error is waived, unless it is plain error. Crim.R. 52(B), State v. Gillard (1988), 40 Ohio St.3d 226, 230. It can not be said that absent the above acts, there was a high probability the outcome of the trial would have been different. Cf. State v. Underwood (1983), 3 Ohio St.3d 12. The alleged errors did not rise to the level of plain error, and were waived. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED WHEN IT PERMITTED TESTIMONY OF OTHER CRIMES, ACTS OR WRONGS, ATTRIBUTED TO DEFENDANT- APPELLANT TO BE INTRODUCED OVER OBJECTION AND BY ITS FAILURE TO GIVE A LIMITING INSTRUCTION BOTH DURING THE COURSE OF THE TRIAL AND IN THE GENERAL CHARGE TO THE JURY, THE PURPOSES FOR WHICH EVIDENCE PRESENTED BY THE PROSECUTOR COULD BE USED. -12- On direct examination, Laura Phelps testified that appellant was her pimp, and that appellant beat her. On cross-examination, defense counsel questioned Laura concerning appellant's drug dealing and gambling activities. Evid.R. 404(B) states: Evidence of the other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.) See also R.C. 2945.59. Evid.R. 404(B) contains a non-exclusive list of purposes for which other acts evidence may be admissible. See Staff Notes to Evid.R. 404(B), State v. Stokes (1991), 72 Ohio App.3d 735. In this case, the evidence of domestic violence was introduced to show why Laura Phelps waited three years to report the incidents of August 26-27, 1985 to the police, and why Laura filed false reports against her husband. The fact that appellant was Laura's pimp was essential to Laura's story of the incidents on August 26- 27. The drug and gambling evidence was raised by the defense to show that Laura was really talking about a black man in her home for a drug deal, and the victim was not in her home. Admission of this evidence did not violate Evid.R. 404(B) or R.C. 2945.59. Additionally, there were no objections to this evidence. Any error in admitting the evidence was not plain error. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: -13- DEFENDANT-APPELLANT WAS DENIED THE 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. To establish ineffective assistance of counsel, appellant must show his counsel substantially violated an essential duty and appellant was prejudiced thereby. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, State v. Bradley (1989), 42 Ohio St.3d 136. Counsel is ineffective if his performance falls below an objective standard of reasonableness. Id. Deference is given to the strategic decisions of counsel. Id. To show prejudice, appellant must demonstrate there is a reasonable probability that but for counsel's unprofessional errors, the results of the proceeding would have been different. Id. Appellant asserts his trial counsel was ineffective because he failed to call appellant's employer as a witness. The record gives no indication of the contents of this witness's testimony. Appellant has not shown he was prejudiced for failure to call this witness. Appellant was also not prejudiced by counsel's failure to subpoena the false complaints Laura filed against the appellant. Laura testified as to two false complaints. Counsel questioned Laura Phelps concerning appellant's drug and gambling activities, in an attempt to show that the man in appellant's house was not the victim. Counsel made a reasonable strategic decision and did not violate a substantial duty to appellant. Calling Allen Robinson was also a reasonable strategic decision. Although Robinson discussed appellant's involvement in -14- prostitution, his testimony conflicted with the State's witness, Laura Phelps. The record does not indicate that counsel's failure to request the grand jury transcripts be admitted into evidence was erroneous or prejudicial. Appellant has failed to show that his counsel was ineffective. Accordingly, this assignment of error is overruled. V. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED IN FORCING DEFENDANT-APPELLANT TO PROCEED TO TRIAL WHEN ADVISED PRIOR TO, THE VERDICT THAT APPOINTED COUNSEL HAD NOT COUNSELLED WITH HIM PRIOR TO TRIAL, HAD NOT SUMMONED THE WITNESSES HE HAD REQUESTED, AND WAS ANTAGONISTIC TO DEFENDANT. At a pretrial on May 2, 1995, appellant moved to remove his counsel for irreconcilable differences. Appellant stated his counsel did not do "certain things" appellant asked him to do, did "things" appellant asked him not to do, and allowed the prosecutor too much time to convince his wife to testify. Appellant's counsel stated he was ready to go to trial as scheduled on May 8, 1995. Although counsel had rotator cuff surgery, he was not ill. The trial court denied the motion. Appellant asserts his sixth amendment right to counsel was denied by the trial court's ruling on this motion. As discussed above, appellant has not shown his counsel was ineffective. Appellant asserts the Supreme Court held in Morris v. Slappy (1983), 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 that a defendant is entitled to a "meaningful relationship" with counsel. In fact, -15- the majority in Morris v. Slappy rejected this very proposition. Additionally, the record here does not show the relationship between appellant and his attorney was so poor as to deny appellant a meaningful relationship with counsel. Accordingly, this assignment of error is overruled. VI. Appellant's sixth assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO GRANT DEFENSE COUNSEL'S MOTION UNDER CRIMINAL RULE 29 BECAUSE THE STATE FAILED TO PROVE JURISDICTION OR VENUE BEYOND A REASONABLE DOUBT. R.C. 2901.11 states (A) A person is subject to criminal prosecution and punishment in this state if any of the following occur: (1) He commits an offense under the laws of this state, any element of which takes place in this state; . . . (B) In homicide, the element referred to in division (A)(1) of this section is either the act which causes death, or the physical contact which causes death, or the death itself. If any part of the body of the homicide victim is found in this state, the death is presumed to have occurred in this state. . . . (D) When an offense is committed under the laws of this state, and it appears beyond a reasonable doubt that the offense or any element thereof took place either in Ohio or in another jurisdiction or jurisdictions, but it can not be reasonably determined in which it took place, such offense or element is conclusively presumed to have taken place in this state for purposes of this section. In this case, there was evidence that a blow to the victim's jaw and a bear hug occurred in this State. These actions may have caused the victim's death, according to Dr. Balraj. We believe -16- there was sufficient evidence to show the physical contact causing death occurred in Ohio. If not, then it can not be reasonably determined where the actions causing death took place, so the murder is conclusively presumed to have occurred in Ohio. R.C. 2901.11(D). There was also evidence the kidnapping and robbery occurred in this State. The trial court had subject matter jurisdiction over this case. Appellant waived his right to assert lack of venue by failing to raise the issue before trial commenced. State v. Shrum (1982), 7 Ohio App.3d 244. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -17- 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. SWEENEY, JAMES D., P.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .