COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71138 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION ROBERT DUKES : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-328312 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender JOHN R. MITCHELL, ESQ. Assistant County Prosecutor ROBERT M. INGERSOLL, ESQ. The Justice Center Assistant Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street Cleveland, Ohio 44113-1513 - 2 - KARPINSKI, J.: Defendant-appellant Robert Dukes appeals from his jury convictions on two counts of assault with violence and peace officer specifications. Defendant complains the prosecution improperly argued to the jury that he was under the influence of PCP (phenyl cyclohexyl piperidine) at the time he committed the offenses. We affirm. Defendant was indicted September 21, 1995, on two counts of felonious assault and two counts of assault against two Cleveland police officers, each with violence and peace officer specifications. The charges arose out of an altercation in the early morning hours of June 28, 1995. Uniformed officers Bobby Rose and John Foster stopped their marked police cruiser to assist two motorists in a disabled vehicle. The officers activated the overhead lights. Shortly thereafter, defendant rapidly approached in his own vehicle and brought it to a screeching halt near the rear of the police cruiser. Officer Foster jumped onto the trunk of the cruiser to avoid being stuck by defendant's vehicle. Defendant exited his vehicle to confront the officers. Apparently mistaking the situation as a traffic stop, defendant ordered the officers to leave the two juvenile motorists alone. The situation deteriorated into a physical altercation and the two officers were unable to subdue defendant. - 3 - Officer Rose made a radio call for assistance and several additional officers responded to the scene. During the struggle Officer Rose sprayed defendant in the face with pepper spray, but defendant was not phased by it and continued to struggle wildly. Officer Foster was inadvertently sprayed with the same spray and disabled. It ultimately took a total of eight or nine police officers to subdue and arrest defendant. Officer Rose suffered two broken ribs. Officer Foster suffered a pulled muscle and other minor injuries. Defendant also bit him on the left biceps. The trial court referred defendant to the court psychiatric clinic to determine his competency to stand trial and sanity at the time of the offenses. The trial court thereafter dismissed the two felonious assault charges before the case proceeded to trial. The prosecution presented testimony from five police officers involved in the incident: Officers Rose, Foster, O'Brien, Cooper and Rudin. During the course of the testimony Officers Rose and O'Brien, a certified EMS driver, testified that defendant appeared to be under the influence of PCP during the incident. The officers stated that, in light of their experience, this chemical influence explained why the pepper spray had no effect on him and why he had such strength and endurance. Defense counsel did not object to this testimony. Defendant's theory was that the police attacked him, but he did not present any evidence. The jury convicted defendant on both counts of assault with violence and peace officer - 4 - specifications. The trial court entered judgment on the jury verdict and sentenced defendant to concurrent indefinite sentences of one and one-half to five years' imprisonment. The trial court suspended this sentence and placed defendant on two years' probation. Defendant, through newly appointed appellate counsel, raises the following two related assignments of error in this delayed appeal: ROBERT DUKES WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BEFORE AN UNBIASED JURY, WHEN BOTH STATE'S WITNESSES AND THE STATE'S CLOSING ARGUMENT MADE REPEATED REFERENCES THAT MR. DUKE'S [SIC] WAS HIGH ON PCP DURING THE INCIDENT, IN VIOLATION OF OHIO'S PROHIBITION AGAINST "OTHER ACTS" EVIDENCE. ROBERT DUKES WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE REPEATED STATEMENTS THAT DUKES WAS HIGH ON PCP DURING THE INCIDENT. These assignments lack merit. Defendant does not challenge the competency of the officers to make the challenged statements concerning his apparent use of PCP, but rather contends the statements constitute inadmissible "other acts" evidence under Evid.R. 404(B). Because trial counsel did not object to the statements, defendant contends alternately that the admission of this evidence constituted "plain error" or resulted from the "ineffective assistance of 1 counsel." 1 The first assignment of error in defendant's brief mentions constitutional provisions. However, defendant's arguments are clearly predicated on Evid.R. 404(B). The text of his brief does not refer to any federal or state constitutional provisions. As in State v. Elliot (1993), 91 Ohio App.3d 763, we decline to engage in a gratuitous discussion of any constitutional (continued...) - 5 - It is well established that challenges to the admissibility of evidence are waived when there is no timely objection or motion to strike the evidence under Evid.R. 103(A)(1) absent plain error. Evid.R. 103(D) and Crim.R. 52(B); State v. Carrion (1992), 84 Ohio App.3d 27, 29-30. The Ohio Supreme Court has repeatedly admonished that notice of plain error should be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, syllabus paragraph three. To establish plain error, the aggrieved party must establish not only the existence of error, but also that without the error the result of trial clearly would have been different. Id. We need not determine whether the trial court committed any error in admitting the challenged statements because the result of trial would not clearly have been different without the 2 information. Five police officers specifically identified defendant and testified that he knowingly caused physical harm to two of the officers. This testimony was corroborated by medical records which objectively established the physical injuries to 1 (...continued) implications concerning the admission of the challenged statement because of defendant's failure to brief these constitutional issues. 2 The prosecution argues that evidence supporting an inference of prior drug use in connection with a crime does not constitute impermissible "other acts" evidence, citing State v. Fluellen (1993), 88 Ohio App.3d 18. We need not make any general pronouncement on this issue, however, because this case involves different factual circumstances than Fluellen and the alternate grounds of lack of prejudice are compelling. - 6 - the two officers. It takes quite a stretch of imagination to argue that the result of the trial would clearly have been different without the challenged statements concerning defendant's use of PCP. To the contrary, error, if any, in this case was harmless beyond a reasonable doubt because of the overwhelming evidence of defendant's guilt. Crim.R. 52(A); State v. Brown (1992), 65 Ohio St.3d 483, 485-486. Defendant's theory of innocence was undermined by the undisputed evidence that he approached the officers on the scene in an unusually aggressive manner. Under the circumstances, there is no reasonable possibility that the challenged statements contributed to defendant's convictions. Id.; State v. Lytle (1976), 48 Ohio St.2d 391, vacated in part on other grounds (1978), 438 U.S. 910. Defendant's newly minted claim of ineffective assistance of trial counsel fails for the same reason. To establish ineffective assistance of trial counsel, defendant must not only prove that trial counsel's performance was seriously deficient, but also that he suffered resulting prejudice. State v. Brooks (1986), 25 Ohio St.3d 144, 147-148; State v. Carrion, supra. Even if trial counsel should have raised this objection at trial, as his newly appointed appellate counsel contends, the result of trial would not have been any different for the reasons set forth above. This court has previously rejected similar twin challenges to alleged "other acts" evidence when cloaked in the garb of - 7 - plain error and ineffective assistance of counsel. E.g., State v. William Matthews, Jr. (Dec. 12, 1991), Cuyahoga App. No. 59467, unreported; State v. Abdul Hasan (Nov. 17, 1991), Cuyahoga App. No. 59480, unreported; accord State v. Carrion, supra. The evidence in the case at bar is even stronger than in those cases. In short, defense counsel did not object at trial because the challenged statements were not "pivotal" as newly appointed counsel contends for the first time on appeal. Moreover, defense counsel obtained a dismissal of the felonious assault charges prior to trial. This dismissal, along with the record, affirmatively demonstrates that counsel was not ineffective. Defendant's two assignments of error are overruled. Judgment affirmed. - 8 - 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 ABOOD*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge Charles D. Abood, Retired, of the Sixth District Court of Appeals, sitting by assignment. 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 .