COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70933 and 70934 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION PATRICK HUNTER : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 17, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-333785 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ERIKA RITT The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender VALERIE R. ARBIE Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 441130-1569 - 2 - O'DONNELL, J.: Patrick Hunter appeals from separate judgments of the common pleas court entered pursuant to a jury verdict finding him guilty in case no. 333785 of aggravated robbery with a firearm specifi- cation and also finding him guilty in case no. 335201 of aggravated robbery and having a weapon while under a disability, both with violence and firearm specifications, arising from Hunter's actions in seizing two motor vehicles from two individuals, on separate occasions, at gunpoint. In case no. 333785, the record reveals that around 6:00 p.m. on New Year's Eve, 1995, Hunter, known to Robert Henderson as "Pleasure Brown," met Henderson at the Greyhound bus terminal in Cleveland, Ohio, and Henderson drove him to the east side. As they approached the intersection of Westchester Avenue and East 102nd Street, Hunter pulled out a .357 caliber revolver and demanded money from Henderson. Henderson and Hunter exited the vehicle, and Hunter fired a shot in the air across Henderson's head demanding the car keys. Henderson gave him the keys and Hunter drove west toward downtown Cleveland. Henderson immediately ran to a telephone booth, called 9-1-1 and reported that he had been robbed at gunpoint. Cleveland police officers Steven Zedella and Mark Mruk responded to that emergency call. Around midnight, two days later, the record in case no. 335201 reveals that Hunter, while hitchhiking along West 25th - 3 - Street in a blizzard, accepted a ride from Michael Normile who agreed to drive him to East 105th Street and Superior Avenue. As they neared the intersection of Rockefeller Boulevard and Superior Avenue, Hunter pulled out a revolver, obtained $35.00 in cash from Normile, ordered him out of the vehicle, and drove it north on East 99th Street towards St. Clair Avenue, leaving Normile on the street corner. Normile ran to a nearby store, telephoned the police and advised them of what had occurred. Officers Alvin Gulley and Pillow responded to Normile's location. The following week, Henderson learned from a friend, David P. Hildebrand, the front desk manager at the Jay Hotel located at 2515 Jay Avenue in Cleveland, Ohio, that Hunter, who occasionally resided at the hotel, may have been the man who robbed him. When Hunter checked into the Jay Hotel, Hildebrand advised Henderson who called the police and, after identifying Hunter as the man who robbed him, police arrested Hunter. A few days later, Normile picked Hunter's photograph from a photo array and identified him as the man who had robbed him at gunpoint. The grand jury indicted Hunter in case no. 333785 for aggravated robbery with a firearm specification and, in case no. 335201, for aggravated robbery with a firearm specification, and two additional violence specifications, one for a prior conviction of aggravated vehicular assault, and a second for having a weapon while under disability. Before trial, the court granted the state's motion to consolidate the two cases for - 4 - trial, but overruled defense counsel's objection to commencing trial with Hunter wearing jail clothes. Also, both counsel stipulated to Hunter's prior conviction for aggravated vehicular assault. The court then conducted a jury trial where Henderson and Normile each identified Hunter in court as the man who robbed them at gunpoint. Officers Zedella and Gulley described their responses to each of the robbery reports. Hildebrand, the manager at the Jay Hotel, explained his role in the identification and arrest of Hunter, and Officer Mitchell testified regarding the arrest of Hunter at the Jay Hotel. Cleveland Police Detective Lori Terrace testified regarding her investigation of the two cases and regarding Normile's identification of Hunter in the photo array she arranged. At the close of the state's evidence, defense counsel moved for acquittal on both cases but the court overruled those motions. In his defense, Hunter, on direct examination, admitted his previous conviction for aggravated vehicular assault, denied he ever met Normile, and stated that Henderson shot him in the leg because of a failed scheme to sell "slum jewelry." On cross- examination, the prosecutor questioned Hunter about his prior convictions, which revealed Hunter's involvement in a high speed chase with police officers that resulted in his conviction for aggravated vehicular assault and an additional conviction for failure to comply with an order of a police officer. The - 5 - prosecutor also cross-examined Hunter regarding his failure, prior to trial, to report to police his claim that Henderson shot him. After the close of all the evidence, the jury returned verdicts finding Hunter guilty in case no. 333785 of aggravated robbery with a firearm specification, and guilty in case no. 335201 of aggravated robbery with a firearm specification and guilty of a prior aggravated felony specification of aggravated vehicular assault and also guilty of having a weapon while under disability, with a prior aggravated felony specification of aggravated vehicular assault, and an additional firearm specification. Hunter now appeals raising five assignments of error and has moved pro se to file a supplemental brief raising four additional assignments of error, but because the first and fourth of these repeat arguments contained in his counsel's brief, we disallowed them. The first assignment of error states: PATRICK HUNTER'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION FOR HAVING A WEAPON WHILE UNDER DISABILITY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. Hunter urges that his prior conviction for aggravated vehicular assault did not place him under disability, that his conviction for having a weapon while under disability is not - 6 - supported by sufficient evidence and, therefore, the court improperly denied his Crim.R. 29 motion in this regard. The state here agrees that the court should have granted his Crim.R. 29 motion on the charge of having a weapon while under disability. Thus, no issue has been presented for our determination. Here, both the state and defense counsel agree that R.C. 2901.01(I), which defines offenses of violence, does not include the offense of aggravated vehicular assault. Therefore, Hunter's prior conviction for aggravated vehicular assault does not constitute a disability and the evidence presented by the state is insufficient as a matter of law to support Hunter's conviction for having a weapon while under disability. Accordingly, the trial court erred in denying the motion for acquittal as to that offense. This matter is therefore remanded to the trial court with instruction to vacate the judgment and sentence for having a weapon while under disability. The second assignment of error states: THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO AN ADDITIONAL THREE YEAR TERM OF ACTUAL INCARCERATION PURSUANT TO R.C. 2929.71 WHEN THE UNDERLYING SENTENCE WAS A DEFINITE TERM RATHER THAN AN INDEFINITE TERM. This assignment of error is moot. The third assignment of error states: PATRICK HUNTER'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES - 7 - CONSTITUTION WAS VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. Hunter alleges prosecutorial misconduct in questioning his involvement in a high speed chase with police officers that resulted in his prior convictions for aggravated vehicular assault and failure to comply with an order of a police officer. The state contends the prosecutor properly questioned Hunter regarding the high speed chase because it formed the basis of Hunter's conviction for failure to comply with an order of a police officer which he failed to disclose on direct examination. The issue then presented for our review is whether the prosecutor's examination regarding the high speed chase constituted prosecutorial misconduct which denied Hunter a fair trial. In considering a claim of prosecutorial misconduct, we look to the established standard used in State v. Pumpelly (1991), 77 Ohio App.3d 470, 481: * * * The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused * * *. The first part of the test requires us to determine whether the prosecutor improperly cross-examined Hunter. Evid.R. 609 permits the state to introduce evidence of Hunter's prior convictions if they are punishable by imprisonment in excess of one year. On cross-examination, Hunter admitted to a prior - 8 - conviction for failure to comply with an order of a police officer which is punishable by imprisonment for eighteen months to five years. Hence, the prosecutor properly sought admission of this prior conviction into evidence. On direct examination, Hunter admitted his prior convictions for aggravated vehicular assault, a drug offense and theft. However, he failed to admit his prior conviction for failure to comply with an order or signal of a police officer. This conviction arose from a high speed chase involving police which ended in a motor vehicle collision and also resulted in his conviction for aggravated vehicular assault. Since Hunter failed to disclose these facts on direct examination, the prosecutor did not improperly examine Hunter and committed no misconduct. Accordingly, this assignment is overruled. The fourth assignment of error states: PATRICK HUNTER WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT GRANTED THE PROSECUTOR'S MOTION FOR CONSOLIDATED TRIALS OVER DEFENSE COUNSEL'S OBJECTION--EACH CASE WAS BASED ON DIFFERENT DATES AND INVOLVED SEPARATE AND DISTINCT CIRCUMSTANCES AND VICTIMS. Hunter alleges the consolidation of his two cases denied him a fair trial because the jury combined the evidence to reach its verdicts. The state contends the consolidation did not deny him a fair trial because the facts of either case could have been introduced in the other case as "other acts" evidence. - 9 - The issue presented for our review is whether the consoli- dation denied Hunter a fair trial. The consolidation of multiple cases is permitted by Crim.R. 13 if the offenses could have been joined in a single indictment. The test for application of this standard is stated in State v. Clements (1994), 98 Ohio App.3d 797, 799: * * * [T]he test of whether two offenses may be charged in the same indictment is whether the two offenses are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. Crim.R. 8. (Emphasis added). As explained in State v. Mills (1992), 62 Ohio St.3d 357, 362, consolidation is proper if the evidence is "* * * simple and direct, so that a jury is capable of segregating the proof required for each offense * * *. Indeed, if the state can meet [this] test, it need not meet the stricter 'other acts' test * * *." The evidence presented in connection with these offenses revealed that on two separate occasions, with a three day time period, Hunter accepted rides to an east side location and at gunpoint robbed the motorists of their vehicles. In accordance with Crim.R. 13, these acts are logically connected or may be part of a course of criminal conduct and could have been brought in the same indictment. Further, the evidence is simple, direct and a jury would be capable of segregating the evidence need to prove each charge. - 10 - Also, the consolidation did not prejudice Hunter since the evidence from either case would have been admissible as "other acts" evidence in the other case had the court conducted separate trials. As the Supreme Court wrote in State v. Lowe (1994), 69 Ohio St.3d 527, 531, "'Other acts' may be introduced to establish the identity of a perpetrator by showing that he has committed similar crimes and that a distinct, identifiable * * * system was used in the commission of the charged offense * * *. To be admissible to prove identity through a certain modus operandi, other-acts evidence must be related to and share common features with the crime in question * * *." In each case, Hunter accepted a ride from a motorist, pointed a revolver at the driver upon reaching his destination, demanded money and the keys and drove away with the car. This demonstrates a distinct, identifiable system by which Hunter commits the crime of aggravated robbery and the evidence in each case shares common features. Accordingly, this assignment of error is not well taken. The fifth assignment of error states: PATRICK HUNTER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND WHEN HIS TRIAL COUNSEL FAILED TO RENEW ITS OBJECTION TO THE TRIAL COURT'S ORDER OF JOINDER OF SEPARATE AND DISTINCT CASES FOR TRIAL. Hunter alleges defense counsel failed to renew his objection to the court's consolidation of the two cases which denied him the effective assistance of counsel. - 11 - The state contends, since the consolidation did not prejudice Hunter, defense counsel's failure to renew his objection did not deny Hunter the effective assistance of counsel. The issue presented for our review is whether defense counsel's failure to renew his objection to the consolidation denied Hunter the effective assistance of counsel. In considering a claim of ineffective assistance of counsel, we apply the two-part test established by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 687: * * * 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 the defendant 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. We first evaluate whether defense counsel's failure to renew his objection to the consolidation of the cases constituted deficient performance. In State v. Owens (1975), 51 Ohio App.2d 132, syllabus 2, the court stated that a motion for severance of consolidated cases " * * * [m]ust be renewed at the close of the state's case or at the conclusion of all the evidence and unless made at that time, is waived." However, although defense counsel should have renewed his objections, we addressed the consolidation in the fourth assignment of error and determined it - 12 - neither prejudiced Hunter nor denied him a fair trial. Applying the Strickland test, we conclude defense counsel did not deny Hunter effective assistance of counsel. Accordingly, this assignment is overruled. We next consider the second and third supplemental pro se assignments of error filed by Hunter. The second supplemental assignment of error states: PATRICK HUNTER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S IMPROPER QUESTIONING OF DEFENDANT'S POST MIRANDA RIGHT OF SILENCE. Hunter alleges that his defense counsel denied his right to effective assistance of counsel by failing to object to the prosecutor's questions and closing argument regarding Hunter's failure to inform police, at the time of arrest and prior to trial, that Henderson shot him in the leg. The state contends the prosecutor's questions and closing argument constituted harmless error and defense counsel's failure to object did not deny Hunter the effective assistance of counsel. The issue presented for our review is whether defense counsel's failure to object to the prosecutor's questions and closing argument denied Hunter the effective assistance of counsel. - 13 - In considering this assignment, we begin with Doyle v. Ohio (1976), 426 U.S. 610, 619, which held "[t]he use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment * * *." Here, the prosecutor erred by asking Hunter why he did not tell police, at any time prior to trial, that Henderson shot him and compounded the error by commenting on Hunter's silence during closing argument. It would have been appropriate for defense counsel to object on these occasions. However, in State v. Rowe (1993), 92 Ohio App.3d 652, 670, the court stated that a Doyle violation does not require a reversal of conviction unless "[t]he statement may be said to have made the difference between appellant's conviction and acquittal * * *." In this case, both of Hunter's victims identified him and testified in open court that he robbed them of their money and cars at gunpoint. We cannot say, given this evidence, that the prosecutor's questions and statements regarding Hunter's failure to inform police that Henderson shot him would have made the difference between conviction and acquittal. Therefore, the Doyle violations do not require a reversal of Hunter's convictions. Applying the Strickland test, we conclude that defense counsel's failure to object to the Doyle violations neither prejudiced Hunter nor denied him a fair trial. Hence, - 14 - defense counsel did not deny Hunter the effective assistance of counsel at trial. Accordingly, this assignment is overruled. The third supplemental assignment of error states: PATRICK HUNTER'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISION OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN HE WAS FORCED TO START TRIAL IN ORANGE JAIL CLOTHING OVER HIS OBJECTION. Hunter alleges the court denied him a fair trial by compelling him to appear for trial wearing orange jail clothing. The state urges that Hunter consented to commence trial in jail clothes and, therefore, waived his right to raise this issue on appeal. The issue presented for our review is whether the court denied Hunter a fair trial by compelling him to appear before the jury on the first day of trial in jail clothes or whether Hunter waived his right to claim this as error on appeal. The transcript, reveals that the court engaged in a colloquy with Hunter and his counsel on two occasions regarding his attire, during which Hunter agreed to commence trial in the orange jail clothes. Also, Hunter and his counsel knew of the trial date, and made unsuccessful efforts to secure street clothing for trial. Because Hunter agreed to proceed to trial wearing jail clothes, he has no justiciable issue on appeal. This assignment of error is overruled. JUDGMENT ACCORDINGLY. - 15 - 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. BLACKMON, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .