COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72051 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DAVID RAWLS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 30, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-341,281 JUDGMENT : AFFIRMED AND REMANDED : FOR RE-SENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor SHERRY F. McCREARY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL L. BELCHER Attorney at Law 75 Public Square, #910 Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Defendant-appellant David Rawls appeals from his convictions after a jury trial on two counts of aggravated robbery and two counts of kidnapping, all with firearm and aggravated felony specifications. Appellant contends the trial court erred in overruling his motion to suppress evidence, admitting evidence obtained by police officers from his pager, admitting the testimony of one of the witnesses, refusing to recuse one of the jurors during trial, and sentencing him on his convictions. Appellant also argues his convictions are against the manifest weight of the evidence. This court has reviewed the record, finds the trial court's orders were appropriate, and therefore affirms appellant's convictions. Appellant's convictions stem from an incident that took place on the afternoon of Sunday, June 16, 1996. On that day, Peter Thomas, eighteen years old, was working as an employee supervisor at the Marc's Discount Drugstore located on Lakeshore Boulevard in Euclid, Ohio. During the course of his duties, Thomas spent some time helping at a cash register at the front of the store. At that time, he happened to notice a man, later identified as appellant, standing near the pay telephone a short distance away. Thomas recognized appellant because Thomas had already seen appellant at the store several times. On the previous Friday, appellant had attracted Thomas' attention by walking around the store, 1 seeming to be observing something, for nearly three 1Quotes indicate testimony given by a witness at appellant's trial. -3- hours. When Thomas finally questioned appellant about this behavior, appellant stated he was a floor cleaner who was going to be doing some type of business with the store. Thomas had then spoken to his manager about appellant and had been reassured that the matter would be check[ed] into. Thomas also had seen appellant the following day. At that time, appellant was seated in the employees' break room convers- ing with some of Thomas' co-workers and asking questions about the store and about the managers. Thus, upon seeing appellant again on that Sunday, Thomas noticed him briefly. Appellant was dressed in as navy blue outfit, which appeared to be an official's outfit. Thomas' co-worker, Joe Jones III, who was working as the store's greeter that day, also noticed appellant. After using the pay telephone, appellant approached Jones and asked him which store manager was on duty that day. The two had a short conversa- tion, then appellant returned to the telephone. Shortly thereafter, Damian Harris, who worked at the store's customer service counter, took a break. He went to the door to the employees' area, opened it, and entered the short hallway. Just inside was the break room. Harris seated himself at the table. A man in dark clothing, wearing a hat bearing the word police on it, later identified as appellant, entered the room. Harris recognized appellant, having seen him a few days previously in the warehouse area of the store demonstrating how to use the floor cleaning machine. -4- The two greeted each other. Observing a .9 millimeter handgun on appellant's left side of his hip, Harris asked if he was the new security guard. Appellant responded he was a part-time security guard, and he also ran the floors. The two men then had a conversation about commercial floor cleaning. During the con- versation, appellant asked if there was a money room around. As they were speaking, the assistant store manager, Shawn Miller, entered the break room. Appellant introduced himself as the person who was with the new company that was *** going to do [the] floors for the store, stripping and waxing. Miller remembered receiving a company memo the previous evening that the store was changing floor maintenance companies. Appellant stated he knew that Hour Maintenance used to do the floors and that they wanted to do them a lot better. He further requested Miller to show him the store's floor cleaning machine. Miller accompanied appellant to the warehouse area of the store where the machine was located. Miller also paged another store employee, William Bradford Snell, to join them. The three men discussed the machine and the process for a few minutes, then appellant stated he would speak to the store manager concerning the time he would start and would walk the store one more time before leaving. Shortly thereafter, Peter Thomas needed change for one of the cash registers. Thomas took some bills from the drawer, placed them in a bag, then proceeded to the employees' area. When he entered the door, he walked down the short hallway past the break -5- room, stopped in front of the door to the money room, then knocked on it. Sharon Wheeler was working inside the money room that day. Her job consisted of preparing the cash register drawers, receiving the drawers at shift change, counting the money in the drawers, placing the information on ledger sheets, and readying the money for deposit. When Thomas knocked at the locked door of the money room, Wheeler used the peep hole in the door to ascertain who was outside before opening it. Thomas handed Wheeler the bag he carried and informed her he needed change. Wheeler closed the door, took the bills out of the bag and placed the change inside. However, when she looked out again, Thomas had left; therefore, she merely hung the bag on a hook on the back of the door and returned to her duties. Approximately ten minutes later, Wheeler heard another knock at the door. Wheeler expected her visitor to be either Thomas or the employee of the armored company that came to the store to take the deposit to the bank. When she looked out of the door's peep hole, Wheeler saw a man with black clothing and a black hat that said `police' on it. Believing it was the security firm's employee, she opened the door. The visitor immediately grabbed the door and placed a gun at Wheeler's face. He then shoved her back into the room, told her to turn around, covered her mouth with a hand, and pushed the door closed. Wheeler's assailant quickly forced her to the floor. He -6- told her to place her hands behind her, then tied them with a store shirt he had taken from a nearby rack of clothing. The assailant also tied Wheeler's feet together with another shirt. Shortly thereafter, Thomas arrived outside the door to retrieve the change Wheeler had prepared. At his knock, the assailant opened the door, pointed the gun at Thomas and pulled him inside the room. Thomas immediately recognized the assailant as appellant, the man in the outfit he had seen earlier near the pay telephone. Appellant had apparently been putting money into a large plastic bag. Appellant placed the gun at Thomas' head and told him to fill the bag up with money. Thomas obeyed. After he had done so, appellant forced him to the floor alongside Wheeler, tying Thomas' legs with another store shirt. Appellant seized money Thomas had missed; later, it was determined appellant stole over $8000 from the store. At that point, appellant bent to his captives. Appellant used his gun to strike Thomas a blow in the head and then also struck Wheeler four blows in the head. Appellant thereupon fled. As soon as he had left the room, however, Thomas rose to his feet and began hopping after him. As Thomas did so, Wheeler managed to reach over the press the store's panic button located on the floor nearby. Jones was putting the carts up when he saw appellant running from the break room and across the store with a Marc's bag and a Marc's shirt. Jones observed the handle of a gun sticking out -7- of his pocket. He saw appellant exit the store and proceed across the store's parking lot before disappearing behind a building. Thomas hopped out of the employees' area and up to the customer service counter, where Harris aided in untying his legs. One of the other employees dialed 9-1-1. At approximately 3:00 p.m., Euclid Police Officer James Mylott received a call to respond to a robbery in progress at the store. He and his partner arrived there within a minute, as did Det. Joseph Bensi. After the officers determined the perpetrator had escaped, they proceeded to the money room, obtained medical assistance for Wheeler and Thomas, broadcast an initial description of the assailant, and interviewed store employees. From their interviews with Miller and Snell, they obtained the name of the floor maintenance company appellant stated he had been hired to replace. Det. Bensi's partner in the investigation, Det. Robert Pestak, subsequently telephoned Hour Maintenance and learned that a man fitting the description of the gunman had been employed there. The detectives thus obtained appellant's name. Within days, they had assembled a photographic array. The police officers then showed the photographic array to the store employees who stated they had seen the assailant at the store either on the day of the robbery or on one or both of the two prior days. All six of the store employees to whom the photographic array was shown chose appel- lant's picture as that of the man they had seen. -8- Appellant eventually was arrested on June 20, 1996 on a charge of aggravated robbery. As appellant was taken into custody at the Euclid City Jail, Det. Raymond Jorz, who was assisting in the investigation, removed items and over $300 in cash appellant had in his pockets and placed them into evidence. One of the items was a pager. Jorz noticed the pager had six telephone numbers stored in it. He listed them on a piece of paper, then transferred the information to his police report. The following day, Jorz noticed seven additional numbers on the pager. Again, he listed them and then put the information on his police report. Jorz then checked directory sources to determine addresses for the telephone numbers that had been displayed on the pager. One address was on the same street as the one on which appellant lived. The detectives also obtained search warrants for both appellant's home and his car. Although they failed to discover the weapon used in the robbery as a result of the search, the officers found over $2000 in receipts for items appellant had purchased on June 19 and 20, 1996. They further found a 1994 federal tax form issued by Hour Maintenance to appellant and a business card for Wrangler Maintenance Professional Cleaning Services. The business card listed appellant's name and the name of his business partner, Louis M. Rox. It contained two telephone numbers, viz., an office number of 271-5863 and a pager number of 766-2871. On June 27, 1996, appellant waived his preliminary examination in Euclid Municipal Court, and his case was bound over to be heard -9- by the grand jury. Appellant's pager was returned to him by the Euclid police on June 30, 1996. In July, 1996, the investigating officers reviewed the witness statements and noted appellant may have used the pay telephone at the store. They therefore obtained a court order to request Ameritech to do a call search on originating telephone numbers from the store's pay telephone. On July 11, 1996, Ameritech received the court order. David Koehrman, Manager of Corporate Security, accessed the appropriate database, retrieved the information and created a spread sheet of the telephone numbers called from the store pay telephone during the relevant time period on June 16, 1996. On July 16, 1996, Koehrman sent the spread sheet to the detectives. Upon receipt of the document, the detectives noted that at 1:41 p.m. on June 16, 1996, a call was made from the pay telephone at the Marc's store to one of the numbers that had appeared on appellant's pager, viz., the one listed to the address near appellant's home. Exactly ten minutes later, the office number listed on the Wrangler Maintenance business card under the name of subscriber Louis M. Rox was called. On August 5, 1996, the Cuyahoga County Grand Jury issued an indictment against appellant, charging him with two counts of aggravated robbery, R.C. 2911.01, and two counts of kidnapping, R.C. 2905.01. Each count carried a firearm specification and an aggravated felony specification for a previous conviction for -10- aggravated robbery.2 Appellant pleaded not guilty to the charges and retained counsel to represent him. The record reflects during the following months, both appellant and the state filed discovery motions and, in addition, several pretrials were conducted. On January 14, 1997, the trial court held a hearing on appellant's motion to suppress identification evidence. At its conclusion, the trial court overruled the motion. A jury panel was then chosen and, on January 16, 1997, appellant's case proceeded to trial.3 During the state's opening argument, the prosecutor mentioned the fact that the police had obtained telephone numbers from appellant's pager. Although appellant objected at this point of the proceedings and moved for a mistrial, the trial court overruled both his objection and his motion. Thereafter, the state presented the testimony of the investi- gating police officers, the store employees who had seen appellant, the victims, and Koehrman, the Ameritech representative. The state also introduced into evidence some police photographs of the crime scene, items found pursuant to the search warrants, and the Ameritech spread sheet. 2Each count also carried two violence specifications that subsequently were dismissed by the state during trial. 3Prior to the commencement of trial, appellant stipulated to the previous conviction for aggravated robbery contained in the aggravated felony specifications to the indictment. -11- Appellant presented the testimony of three witnesses, viz., an attorney who had represented appellant in a civil action, appel- lant's business partner, Louis Rox, and appellant's mother. Subsequently, the jury found appellant guilty of two counts of aggravated robbery and two counts of kidnapping, all with a firearm specification. The trial court sentenced appellant to terms of incarceration as follows: on count one, fifteen to twenty-five years with the first fifteen years actual, consecutively with three years on the gun specification; on count two, fifteen to twenty-five years consecutively with the term imposed on count one; on counts three and four, ten to twenty-five years concurrently with each other and to the terms imposed on counts one and two. Appellant filed a timely appeal of his convictions; he presents eight assignments of error for this court's review. Appellant's assignments of error are quoted verbatim; they will be addressed in logical order and combined when appropriate. Thus, appellant's fourth assignment of error follows. THE TRIAL COURT ERRED IN OVERRULING THE DEFEN- DANT'S MOTION TO SUPPRESS THE IDENTIFICATION TESTIMONY OF WITNESSES WHERE THE PHOTO ARRAY AND THE TECHNIQUES USED BY LAW ENFORCEMENT WERE UNDULY SUGGESTIVE. Appellant argues the identification procedure followed by the police officers was unnecessarily suggestive of his guilt and, thus, his motion to suppress the evidence obtained therefrom was improperly overruled. -12- Appellant first asserts the officers intimated to the witnesses that the robbery suspect's photograph definitely was included in the array. Appellant further contends his photograph is subtly distinctive because he is wearing a different shirt than that of the other men in the array. Appellant's argument remains unpersuasive. Regarding pretrial identification procedures, the Ohio Supreme Court recently has stated as follows: When a witness has been confronted with a suspect before trial, due process requires a court to suppress an identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances. State v. Waddy (1992), 63 Ohio St.3d 424, 438, 588 N.E.2d 819, 830-831, citing Manson v. Brathwaite (1977), 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140, 155, and Neilv. Biggers (1972), 409 U.S. 188, 196-198, 93 S.Ct. 375, 381-382, 34 L.Ed.2d 401, 410-411. However, no due process viola- tion will be found where an identification does not stem from an impermissibly suggestive confrontation, but is instead the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U.S. 1, 5-6, 90 S.Ct. 1999, 2001, 26 L.Ed.2d 387, 394. State v. Davis (1996), 76 Ohio St.3d 107 at 112. Although appellant asserts the police officers' remarks to the witnesses led the witnesses to believe they would see the robbery suspect's photograph in the array, a review of the relevant tes- timony does not support the assertion. Both detectives testified they merely requested the witnesses to review the photographs for anyone that looks familiar to you. The testimony also reveals that the witnesses knew the detectives were investigating the -13- robbery; a few of them merely assumed the suspect's photograph would be included in the array. Their assumption does not render the officers' actions suggestive. Manson v. Brathwaite (1977), 432 U.S. 98 at 112; see, also, State v. Toles (Sep. 11, 1997), Cuyahoga App. No. 70130, unreported. Moreover, the photographic array, which is included in the record, contains six color photographs of black males of very similar age, build, hairstyle, facial structure and facial hair. The photographs are also similar in exposure and lighting. The clothing the men are wearing is hardly visible. Therefore, appellant's picture is not distinctive. State v. Davis, supra; State v. Butler (1994), 97 Ohio App.3d 322; State v, Wills (June 5, 1997), Cuyahoga App. No. 70988, unreported; State v. Mack (June 11, 1992), Cuyahoga App. No. 60707, unreported; see, also, State v. Green (1990), 67 Ohio App.3d 72. Even if this court accepted appellant's contention that the police procedure and photographic array were both suggestive, appellant cannot demonstrate under a totality of circumstances that the witnesses' identifications were unreliable. State v. Waddy (1992), 63 Ohio St.3d 424 at 438. Each of the witnesses had a face-to-face conversation with appellant, described him to the police with significant accuracy, and was positive in his identifi- cation when selecting appellant's photo from the array only days after the incident. State v. Davis, supra; State v. Butler, supra; State v. Halley (1994), 93 Ohio App.3d 71; State v. Green, supra. -14- Since the record reveals the witnesses' identifications of appellant were neither the result of an impermissibly suggestive confrontation nor unreliable, the trial court did not err in denying appellant's motion to suppress the identification testi- mony. Accordingly, appellant's fourth assignment of error is overruled. Appellant's first and second assignments of error follow: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT DENIED DEFENDANT'S MOTION FOR A MISTRIAL BASED UPON THE FACT THE PROSECUTION WITHHELD RELEVANT DISCOVERABLE EVIDENCE WHICH WAS SUPPRESS- IBLE IN VIOLATION OF CRIMINAL RULES 16(B)(1)(c), 16(B)(1)(f) AND 12(D)(2)? IIA. THE WARRANTLESS SEARCH OF A TELEPHONIC COMMUNICATIONS DEVICE (PAGER), BY POLICE OFFICERS AFTER A DEFENDANT IS IN CUSTODY AND INCARCERATED PENDING TRIAL, IS A VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF OHIO WHICH PROHIBITS UNREASON- ABLE SEARCHES AND SEIZURES. IIB. THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF EVIDENCE WHICH WAS OB- TAINED IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONALLY GUARANTEED RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF OHIO AND WHICH WAS NOT DISCLOSED PRIOR TO COM- MENCEMENT OF TRIAL? -15- In these assignments of error, appellant challenges the trial court's decision to admit the detectives' testimony concerning the numbers that appeared on his pager after he was taken into custody. First, appellant argues the admission of the evidence violated Crim.R. 12(D)(2) and 16(B)(1). He contends that because he was not made aware of the existence of this evidence until opening statements, he could not present a competent defense to its introduction and, further, the prosecutor failed to comply with discovery requirements. He also contends the evidence unfairly corroborated the testimony of the state's witnesses. Crim.R. 12(D)(2) states: (D) Notice by the prosecuting attorney of the intention to use evidence. (2) At the request of the defendant. At the arraignment or as soon thereafter as is prac- ticable the defendant may, in order to raise objections prior to trial under subsection (B)(3), request notice of the prosecuting attorney's intention to use evidence in chief at trial, which evidence the defendant is entitled to discover under Rule 16. (Emphasis added.) Crim.R. 16 states in relevant part the following: RULE 16. Discovery and Inspection * * * (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. * * * (c) Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting -16- attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photo- graphs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prose- cuting attorney as evidence at the trial, or were obtained from or belong to the defendant. * * * (f) Disclosure of evidence favorable to defendant. Upon motion of the defendant before trial the court shall order the prosecuting attorney to disclose to counsel for the de- fendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material either to guilt or punishment. The certification and the perpetuation provisions of sub- section (B)(1)(e) apply to this subsection. * * * (E) Regulation of discovery. * * * (3) Failure to comply. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursu- ant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or pro- hibit the party from introducing in evi- dence the material not disclosed, or it may make such other order as it deems just under the circumstances. (Emphasis added.) -17- Although the record reflects appellant filed his request for evidence on August 16, 1996, the record also reflects the numbers that had appeared on appellant's pager do not fit within the discoverable items listed in Crim.R. 16(B) since they were neither documents, tangible objects, nor evidence favorable to appellant. Rather, the numbers were observed, then written into Det. Jorz' investigative notes, which are not themselves considered to be evidence. State v. Moore (1991), 74 Ohio App.3d 334; State v. Drake (Oct. 28, 1993), Cuyahoga App. Nos. 63964, 63965, unreported. Furthermore, even if Crim.R. 12 and 16 are violated, the trial court is vested with the discretion to admit the evidence at its option. State v. Parson (1983), 6 Ohio St.3d 442; see, also, State v. Wiles (1991), 59 Ohio St.3d 71. The state's failure to provide discoverable material does not constitute grounds for sanction unless defendant demonstrates: (1) the failure was willful; (2) foreknowledgeof the evidence would have benefitted in preparing a defense; or (3) he was prejudiced by admission of the evidence. State v. Scudder (1994), 71 Ohio St.3d 263 at 269; State v. Moore (1988), 40 Ohio St.3d 63; State v. Parson, supra. Appellant cannot meet this test. The record reveals the prosecutor who eventually tried appellant's case was the third one who had handled it. Upon appellant's objection during opening statement, the prosecutor declared he was unaware appellant had not been informed of the evidence. The trial court was in the best position to determine -18- the prosecutor's good faith. See, e.g., State v. Edwards (1976), 49 Ohio St.2d 31. The record also reveals that even after this matter was discussed, appellant was determined to have his day in court. Therefore, his intimation he would have considered a plea bargain if earlier faced with this evidence is less than credible. In this connection, this court notes appellant did not feel it necessary to accept the trial court's offer to grant him a short continuance to more effectively deal with the introduction of the pager evidence. State v. Joseph (1995), 73 Ohio St.3d 450; State v. Braxton (1995), 102 Ohio App.3d 28. Finally, the record also reflects the pager evidence was merely cumulative since the pay telephone records demonstrated calls were made on the day of the incident to numbers with which appellant was familiar. Thus, its admission was not prejudicial. State v. Scudder, supra; State v. Parson, supra; State v. Czajka (1995), 101 Ohio App.3d 564; State v. Watters (1985), 27 Ohio App.3d 186. Appellant further argues the evidence should have been excluded because it was obtained as the result of an unreasonable search and seizure. In considering appellant's argument, this court need not address appellant's underlying premise, viz., he had a legitimate expectation of privacy in the information stored in his pager that was constitutionally protected, since Det. Jorz' actions were reasonable. See, e.g., Rakas v. Illinois (1978), 439 -19- U.S. 128; United States v. Edwards (1974), 415 U.S. 800; Arizona v. Hicks (1987), 480 U.S. 321. Although appellant contends a warrant was required to obtain the information, relying upon, inter alia, United States v. Chadwick(1977), 433 U.S. 1, the circumstances of this case are not analogous. Unlike the footlocker seized by federal agents in Chadwick, since the pager's storage capacity was unknown, the evidence contained in it was at risk of being lost or destroyed before a warrant could be obtained; hence, an exigent circumstance existed that justified an exception to the warrant requirement. Schmerber v. California (1966), 384 U.S. 757; People v. Bullock (1990), 226 Cal.App.3d 380; People v. Samaniego (1994), 25 Cal.App.4th 1717. The information obtained from appellant's pager thus was neither improperly obtained nor improperly withheld from appellant by the prosecutor prior to trial; therefore, the trial court did not err in admitting it. Accordingly, appellant's first and second assignments of error are overruled. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN FAILING TO HAVE THE WITNESS' TESTIMONY DISREGARDED OR ALTERNA- TIVELY, GRANT A MISTRIAL FOR FAILURE TO PRO- DUCE THE WITNESSES (sic.) WRITTEN STATEMENT PURSUANT TO CRIMINAL RULE 16(B)(1)(g). Appellant argues the trial court erred when it permitted the state's witness Joe Jones III to testify. The record reflects that -20- on cross-examination, Jones indicated he had given a statement to the Euclid police on the day of the robbery that had been written down and that Jones had then signed. Defense counsel objected at that point to Jones' testimony, asserting the prosecutor had failed to provide a copy as required by Crim.R. 16(B)(1)(g). The prose- cutor represented no statement existed and, after consulting with the detectives, told the court the Euclid police had taken no statement from Jones, but they thought it likely the store's security personnel may have requested Jones to write something. The trial court at that point excused the jury from the courtroom and held an in camera examination of Jones. In response to both the trial court's and the prosecutor's questions of him, Jones testified as follows: (1) he was at the store when he made the statement; (2) he did not know who the two persons were who took his statements; (3) he believed they were with the police department; and (4) one was in uniform while the other was in a coat and tie. Thereafter, the prosecutor reiterated the detectives' assurances that Jones was not one of the witnesses from whom written statements were obtained during their investigation, but some statements were taken by the loss prevention people from the store. Ultimately, the trial court held Jones could continue to testify. The trial court indicated that defense counsel could mention the absence of a written statement at closing argument with -21- regard to Jones' credibility; thus, it decided a statement actually did not exist. State v. Moore, supra. This court is unable to determine the trial court abused its discretion in this matter since, based upon the record, the trial court reasonably could conclude no violation of Crim.R. 16(B)(1)(g) occurred. Id. Accordingly, appellant's third assignment of error is also overruled. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED IN REFUSING TO RECUSE A JUROR AFTER THE TRIAL HAD BEGUN AND BEFORE DELIBERATIONS UPON DISCOVERY THAT THE JUROR WAS ATTENDING THE CLEVELAND POLICE ACADEMY AT THE TIME AND HAD NOT SHARED THAT INFORMATION WITH THE COURT OR COUNSEL DURING THE VOIR DIRE EXAMINATION. Appellant argues one of the jurors was guilty of misconduct because she failed to tell the trial court she was in the process of becoming a police officer until the state had presented most of its witnesses; therefore, the trial court should have recused her. Appellant's argument is unpersuasive. In analyzing a case of alleged juror misconduct, a trial court must engage in a two-tier inquiry. State v. Taylor (1991), 73 Ohio App.3d 827. First, it must determine whether juror misconduct occurred. State v. Jones (1992), 81 Ohio App.3d 348. If so, it must then determine if the misconduct materially affected the defendant's substantial rights. State v. Hipkins (1982), 69 Ohio St.2d 80; State v. Kehn (1977), 50 Ohio St.2d 11; Marmorstein v. Schuck (1928), 29 Ohio App. 145; State v. Taylor, supra. -22- In this case, the trial court remained unconvinced any misconduct had occurred. During its in camera examination of juror Johnson, the trial court recognized she was not one of the original twelve to whom the trial court addressed its queries about folks being connected to law enforcement ; therefore, [n]obody asked her. Moreover, the trial court took care to ascertain Johnson's impartiality. In response to the question whether her future employment might affect her, Johnson stated it would not at all affect how she might decide appellant's guilt. Johnson further stated she absolutely could be fair and impartial. Finally, appellant declined to ask Johnson any questions. Under these circumstances, this court cannot presume appellant's substantial rights were materially affected by Johnson's failure earlier to mention her law enforcement connection. See, e.g., Lund v. Kline (1938), 133 Ohio St. 317 at 320; Michelson v. Kravitz (1995), 103 Ohio App.3d 301; cf., State v. King (1983), 10 Ohio App.3d 261. For the foregoing reasons, appellant's fifth assignment of error is also overruled. Appellant's seventh assignment of error states; DEFENDANT-APPELLANT'S CONVICTIONS WERE CON- TRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the evidence could not sustain his convic- tions, contending it failed to meet the eight factors set forth in State v. Mattison (1985), 23 Ohio App.3d 10. Initially, it must be noted that the court in Mattison counseled that the eight factors -23- were merely guidelines to be taken into account when weighing evidence. They are not hard and fast rules which must be fol- lowed. Id. The court set forth the test to be utilized when addressing the issue of manifest weight of the evidence in State v. Martin (1983), 20 Ohio App.3d 172 at 175 as follows: There being sufficient evidence to support the conviction as a matter of law, we next con- sider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibil- ity of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- fest miscarriage of justice that the convic- tion must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Thus, a reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks (1991), 61 Ohio St.3d 259. In his argument with respect to this assignment of error, appellant focuses mainly upon Thomas' and the other witnesses' identifications of appellant. The evidence presented in this case demonstrated the following: (1) appellant had been seen in the store by several employees on the Friday and Saturday preceding the -24- robbery and on Sunday, the day of the robbery; (2) on these occa- sions, appellant had conversations with most of those employees; (3) appellant gave the employees a memorable explanation for his continued presence in the store; (4) appellant became familiar with the store's layout and routines; (5) Thomas was one of the employees who had spoken to appellant and recognized appellant immediately when appellant pointed a gun at him, pulled him into the money room, and then bound him; (6) Thomas saw Wheeler already incapacitated, a bag in appellant's hand, and heard appellant taking money from the cashiers' drawers; (7) appellant struck both Thomas and Wheeler in the head with his gun before he fled; (8) the store discovered over $8000 was missing following the robbery; (9) the employees who had seen appellant gave accurate descriptions of him to the police; and (10) the employees' subsequent identifica- tions of appellant as the man they had seen were positive. The testimony of appellant's witnesses, on the other hand, essentially was irrelevant to the issue of the identity of the perpetrator of the crimes. On the basis of the evidence adduced at trial, this court cannot say the jury clearly lost its way when it found appellant guilty of aggravated robbery and kidnapping with gun specifica- tions. State v. Martin, supra; State v. Vasquez (1984), 18 Ohio App.3d 92; State v. Price (1989), 52 Ohio App.3d 49; State v. Mack, supra. Accordingly, appellant's seventh assignment of error is also overruled. -25- Appellant's sixth assignment of error states: THE TRIAL COURT ERRED IN SENTENCING THE DEFEN- DANT CONSECUTIVELY ON THE COUNTS BECAUSE THEY CONSTITUTED ALLIED OFFENSE OF SIMILAR IMPORT. Appellant argues his convictions and sentences for both aggravated robbery and kidnapping charges were improper because they were allied offenses of similar import. Pursuant to R.C. 2941.25(B), a trial court is authorized to convict and sentence a defendant for two or more offenses that have as their origin the same criminal conduct if the offenses (1) were not allied and of a similar import, (2) were committed separately, or (3) were committed with a separate animus as to each offense. Newark v. Vazirani (1990), 48 Ohio St.3d 81, 83; State v. Mughni (1987), 33 Ohio St.3d 65. In State v. Logan (1979), 60 Ohio St.2d 126, the court established the following guidelines to determine whether kidnap- ping and another crime are committed with a separate animus as to each under R.C. 2941.25(B): (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convic- tions; however, where the underlying restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demon- strate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each -26- offense sufficient to support separate convic- tions. Id., at syllabus (emphasis added); see, also, State v. Tinch (1992), 84 Ohio App.3d 111. In this case, appellant confined both Wheeler and Thomas at gunpoint in a room that was kept locked from the inside. Although appellant had control over his captives, he tied Wheeler's hands and legs together with store shirts; appellant also tied Thomas' legs together using the same method. Once appellant had both people thus incapacitated, he finished taking the store's money from the cashiers' drawers. Thereafter, however, prior to escap- ing, appellant bent down and repeatedly struck both of his captives in the head with the gun he carried. As a result, Wheeler suffered a concussion and severe head lacerations, and Thomas also suffered head lacerations. Both victims required medical attention for their injuries. Thus, the restraint of the victims led to an increased risk of harm and was more than incidental to the aggravated robbery. Therefore, the trial court did not err when it determined appellant had a separate animus with respect to each crime. State v. Tinch, supra; State v. Luff (1993), 85 Ohio App.3d 785; State v. Anderson (May 12, 1994), Cuyahoga App. Nos. 65378, 65379, unreported. Appellant's eighth and final assignment of error states: WHETHER THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT FAILED TO GIVE THE DEFENDANT THE OPTION OF CHOOSING WHETHER TO BE SENTENCED UNDER THE LAWS WHICH WERE IN EFFECT ON JUNE 16, 1996, THE DATE OF THE OFFENSE, OR UNDER THE LAWS IN EFFECT ON JANUARY 30, 1997, THE DATE OF SENTENCING? -27- Appellant contends the trial court committed plain error in sentencing him pursuant to the criminal sentencing statutes in effect at the time of the commission of the offenses rather than sentencing him pursuant to Senate Bill 2, which was in effect at the time of sentencing. The disposition of appellant's assignment of error is controlled by the following decisions issued by this court: State v. Dempsey (Nov. 20, 1997), Cuyahoga App. No. 71479, unreported, and Stat e v. Delgado (Apr. 9, 1998), Cuyahoga App. No. 71497, unreported (en banc). Accordingly, appellant's eighth assignment of error is sustained. The matter is remanded to the trial court for resen- tencing in accordance with the penalty provisions contained in S.B. 2. Appellant's convictions are affirmed; however, this cause is remanded for re-sentencing. -28- 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 Cuyahoga County Court of Common Pleas 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. JAMES M. PORTER, P.J. and ANN DYKE, J. CONCUR JUDGE KENNETH A. ROCCO 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 decison 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 .