COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70521 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROCHELLE SZAKACS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-321399 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PATRICIA J. SMITH, ESQ. CUYAHOGA COUNTY PROSECUTOR 4403 St. Clair Avenue BY: BLAISE D. THOMAS, ESQ. Cleveland, Ohio 44103 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Rochelle Szakacs brings this delayed appeal to challenge her conviction for robbery with a prior aggravated felony specification. For the reasons set forth below, we affirm. On April 4, 1995, defendant and co-defendants Curtis Fountain, and Leroy Harris were indicted for robbery in connection with the February 1, 1995, attack upon Mark Zelasko. The indictment further alleged that defendant had previously been convicted of attempted robbery in 1989. Defendants pleaded not guilty and the matters proceeded to a joint jury trial on September 18, 1995. The state presented the testimony of Raymond Long, Mark Zelasko, Cleveland Police Officers John Marflak, Jeffrey Traine, William Gonzalez, Christine Oravec, and John Lake. Raymond Long testified that on February 1, 1995, he met a drug dealer named Gerard who took him to the second floor apartment on West 87th Street and Detroit Avenue in order to buy crack cocaine. Gerard, Long, Harris, Fountain, and defendant smoked crack at the apartment. During this time, defendant, Fountain, and Harris joked about having mugged a man earlier that day. Defendant wore a necklace and a ring which she had gotten from the mugging. Long further testified that Gerard borrowed his truck then left the apartment with defendant. Defendant later returned with a $50 bill and said that she had gotten it from a man downstairs and that the man had more money in his back pocket. Fountain - 3 - instructed Long to wait there, then he and Harris ran downstairs. According to Long, defendant looked out a window which had a view to the back parking lot. Long also looked out of the window and saw a man being assaulted in the parking lot. Long recognized Fountain as one of the assailant from the jacket that Fountain had been wearing. Harris' girlfriend, Quintina Smith, who was also present in the apartment suddenly called out to the assailants that police were coming. Long next observed Harris and Fountain re- enter the apartment with things in their coats, and defendant, Harris, and Fountain ran about the apartment hiding things. Long further established that defendant hid somewhere in the apartment and the police arrived a short time later. While alone with one of the officers, Long explained what he had observed. On cross-examination, Long admitted that he was very happy when the police arrived because he had become indebted to Fountain in the amount of $200 for crack, and he was concerned for his safety. He also acknowledged that he has had extensive treatment for psychological problems and was not wearing his glasses at the time he was in the apartment. Mark Zelasko testified that he had been out drinking with a friend on the night of February 1, 1995. Some time after 1:30 a.m., he drove to West 65th Street and Detroit in order to find a prostitute. Defendant waived him down and got into his car. Zelasko showed her that he had money, and defendant agreed to perform act for twenty dollars. She then told Zelasko to follow - 4 - her back to her apartment and she got into a pick-up truck driven by another male. Zelasko followed the pick-up truck to the West 87th Street apartment. Defendant then got out of the vehicle and told Zelasko to drive into the parking lot behind the building and wait for her. Zelasko watched as defendant ascended an exterior staircase and entered a second floor apartment. After Zelasko had waited for defendant for approximately three minutes, three males walked from the front of the apartment building toward his vehicle. They pulled him from his car through the driver's side window, pulled his leather jacket over his head, then beat and kicked him. The men stole $120 from Zelasko, removed the stereo from his car, and cracked the windshield. Zelasko further testified that the police arrived a short time later and found him lying on the ground next to his car. Zelasko explained what had happened and told the officers that defendant had entered a second floor apartment. The police entered the apartment and Zelasko later identified defendant as the woman he had solicited earlier. On cross-examination, Zelasko admitted that he had consumed approximately eleven cans of beer on the night of the attack and that his money was not recovered during the officers' search of the apartment. Cleveland Police Officers John Marflak and Jeffrey Traine testified that they responded to a call that several males were involved in an assault. They found Zelasko on the ground next to - 5 - his vehicle. After speaking to him, the officers requested back- up and were then joined by Officers Oravec and Gonzalez. The officers knocked on the door of the apartment which defendant reportedly entered and Harris gave the officers consent to search for defendant. The officers found Quintina Smith and her children asleep in one of the bedrooms, Fountain lying on a mattress in another room, and Long in the living room. Thereafter, Long spoke with Officers Gonzalez and Marflak. A short time later, Harris and Fountain spoke with Officers Marflak and Traine and stated that they had just bought a car stereo from "Greek." This stereo was later identified by Zelasko. Zelasko also identified cassettes, compact discs, and a car radio face plate which were also found at the apartment. The officers subsequently arrested Harris and Fountain. As they were being taken down the stairs to the police cars, Harris blurted out, "That bitch you are looking for is still in the house." Officer Traine then re-entered the apartment and Quintina Smith directed him to a closet. Traine then found defendant hiding in a pile of filthy clothes which filled the closet. The officer then brought her to the parking lot and Zelasko identified her as the woman he had solicited earlier. The jury found defendant guilty of robbery, and the court found her guilty of the specification. Thereafter, the court sentenced defendant to eleven to fifteen years incarceration. She now appeals and assigns three errors for our review. - 6 - Defendant's first assignment of error states: IT WAS ERROR TO ALLOW OTHER ACT TESTIMONY INTO THE TRIAL WHICH UNFAIRLY PREJUDICED THE APPELLANT. Within this assignment of error, defendant complains that the trial court's introduction of testimony from Raymond Long that Harris, Fountain, and defendant had bragged to him that they had mugged a man earlier in the day deprived her of her right to a fair trial. As an initial matter, Evid. R. 403 vests a trial court with discretion to determine whether the probative value of proffered evidence is substantially outweighed by the danger of prejudice, of confusion of the issues, or of misleading the jury. See State v. Adams (1980), 62 Ohio St.2d 151, 157. Absent an abuse of discretion, a court of appeals should be slow to interfere with an evidentiary ruling of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 265. Further, evidence of previous criminal acts wholly independent of the criminal offense for which a defendant is on trial is inadmissible. State v. Shedrick (1991), 61 Ohio St.3d 331; State v. Thompson (1981), 66 Ohio St.2d 496, 497. Evidence of other acts is inadmissible to show the defendant's propensity or inclination to commit an offense. State v. Curry (1975), 43 Ohio St.2d 66, 68. The only exceptions to the general rule of inadmissibility are set forth in Evid. R. 404(B) and R.C. 2945.59. Evid R. 404(B) states: - 7 - Evidence of 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. Similarly, R.C. 2945.59 states: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. Thus, in order to be admissible, the "other act" evidence must "tend to show," by substantial proof, the defendant's motive, opportunity, intent, preparation, scheme, plan or system in doing an act, knowledge, identity, or absence of mistake or accident. Evid. R. 404(B); R.C. 2945.59; see, also Shedrick, supra, at 337. Applying the foregoing, we are unable to conclude that the trial court erred in allowing introduction of the testimony concerning the robbery earlier in the day. This evidence was clearly not offered to prove the defendant's propensity to commit an offense. Rather, the testimony was offered to demonstrate defendant's scheme and plan with the co-defendants, her knowledge of their activity, and the absence of mistake on her part. Further, evidence that defendant was in possession of property from this earlier incident rendered the testimony extremely probative of defendant's participation in a common plan. We are therefore - 8 - unable to conclude that the trial court abused its discretion in permitting introduction of this testimony. Accord State v. Walker (October 20, 1993), Cuyahoga App. No. 62862, unreported. In State v. Walker, supra, this court stated: [I]f the "other acts" evidence tends to show by substantial proof [of motive, opportunity, intent, plan, preparation, knowledge, identity, or absence of mistake or accident] and when it is relevant to prove the defendant's guilt of the offense in question, the "other acts" evidence may be admissible. State v. Broom ((1988), 40 Ohio St.3d 277, 282; State v. DeMarco (1987), 31 Ohio St.3d 191; State v. Flonnory (1972), 31 Ohio St.2d 124, 126. The trial court applied each of these rules to defendant's pre-trial motion to exclude testimony concerning the Dunson murder. Testimony linking defendant to the Dunson murder was ruled to be admissible. This ruling was proper as the crimes were substantially similar and employed a common plan. See State v. Smith (1990), 49 Ohio St.3d 137. For the foregoing reasons, we conclude that the first assignment of error is without merit. Defendant's second assignment of error states: THE FAILURE OF DEFENSE COUNSEL TO OBJECT TO THE IRRELEVANT AND UNFAIRLY PREJUDICIAL OTHER ACT TESTIMONY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. Defendant next complains that her trial counsel's failure to object to the testimony concerning the alleged other robbery earlier in the day and his denial of her right to testify at trial constituted ineffective assistance of counsel. In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court held that in order to establish a claim of - 9 - ineffective assistance of counsel a defendant must meet the following two-part showing: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that 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." Further, where the asserted error upon which a claim of deficient performance is premised has been rejected by the reviewing court, then the claim of deficient performance will likewise be rejected. See State v. Henderson (1989), 39 Ohio St.3d 24, 33. Applying the foregoing to defendant's contention that her trial counsel was ineffective for failing to object to improper "other act" evidence, this court has in fact determined that the challenged "other act" evidence was not erroneously introduced. Thus, upon this failure of the counsel-performance component to defendant's claim of ineffective assistance of counsel, the claim itself must fail. See, also, State v. Walker, supra, wherein this court determined that the defendant was not denied effective assistance of counsel due to his counsel's failure to object to the introduction of "other act" testimony. This court stated: Defendant now asserts that his counsel's failure to object to the introduction of testimony linking him to crimes other than the Harris and Dunson murders constituted ineffectiveness assistance. The "other acts" tend to show by substantial proof the scheme or plan in which defendant participated, and - 10 - testimony as to them was clearly admissible. This finding is further buttressed by the Supreme Court's ruling in State v. Broom, supra at 182 that: "One recognized method of establishing that the accused committed the offense set forth in the indictment is to show that he has committed similar crimes within a period of time reasonably near to the offense on trial, and that a similar scheme, plan or system was utilized to commit both the offense at issue and the other crimes." ***. We find that defense counsel's failure to object to the introduction of this "other act" testimony was not prejudicial in light of the lower court's ruling on the Dunson testimony, Evid. R. 404(B) and R.C. 2945.59. As to defendant's additional claim that her trial counsel was ineffective for failing to permit her to testify at trial, this court has previously determined that the "naked assertion that defense counsel refused to permit defendant to testify does not amount to ineffective assistance of counsel." See State v. Stevenson (October 17, 1996), Cuyahoga App. No. 70137, unreported, at 7; State v. Young (February 22, 1996), Cuyahoga App. No. 69010, unreported. The Stevenson Court explained: ***[D]efendant must make an overt act which demonstrates to the trial court the accused's desire to testify. *** Nothing in the record suggests that Stevenson wished to testify, or was capable of presenting exculpatory evidence. Indeed, Stevenson's acquiescence in counsel's decision not to place him on the stand precludes his later assertion that his right to testify has been violated. See Butcher, supra. Likewise in this instance, there is no overt manifestation in the record that defendant wished to testify or that she was capable of presenting any exculpatory evidence. Rather, the record demonstrates that defendant acquiesced to her trial attorney's - 11 - decision that she forego testifying. (Tr. 438). We are therefore unable to determine that this decision constituted a serious error which deprived defendant of effective assistance of counsel. The second assignment of error is overruled. Defendant's third assignment of error states: THE VERDICT FINDING THE APPELLANT GUILTY OF ROBBERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Within this assignment of error, defendant asserts that her conviction for robbery is against the manifest weight of the evidence. In evaluating the merit of this assignment of error, we note that in State v. Mattison (1985), 23 Ohio App.3d 10, 14, this court set forth the following factors to be considered by the reviewing court in determining whether a conviction is against the manifest weight of the evidence: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. - 12 - Moreover, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In this instance, the state presented competent, credible, compelling evidence by Long that the co-defendants were involved in a common plan to rob Zelasko whereby defendant determined that he had money, conveyed this fact to Harris and Fountain, and made Zelasko available for the later attack and theft under the ruse of returning to perform a sexual act. In addition, the evidence introduced by the state irrefutably established that Zelasko's property was in the apartment occupied by defendant, Fountain, and Harris. It is also beyond refute that defendant was hiding in a closet of this apartment also occupied by the co-defendants when the police arrived. No opposing evidence was presented. We are therefore unable to conclude that defendant's conviction is against the manifest weight of the evidence. Accord State v. Harris (October 17, 1996), Cuyahoga App. No. 69761, unreported; State v. Fountain (November 7, 1996), Cuyahoga App. No. 70365, unreported. The third assignment of error is overruled. Affirmed. - 13 - 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, C.J., AND ROCCO, J., CONCUR. ANN DYKE 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 .