COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72532 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : LITRELL CHAPMAN : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Cuyahoga County Common Pleas Court Case No. CR-345622 JUDGMENT: AFFIRMED BUT REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiffs-Appellees: Defendant-Appellant: STEPHANIE TUBBS JONES MARTIN J. KEENAN Cuyahoga County Prosecutor 11510 Buckeye Road RICHARD J. BOMBIK Cleveland, Ohio 44114 MICHAEL A. SULLIVAN Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 O'DONNELL, TERRENCE, J.: Litrell Chapman appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of -2- aggravated murder, aggravated burglary, and aggravated robbery, in connection with the shooting death of David White which occurred during an early morning robbery at his apartment located on Miles Avenue in Cleveland, Ohio. He assigns errors concerning effective assistance of counsel, prosecutorial misconduct, admission of evidence, manifest weight, double jeopardy, and sentencing, and after consideration of these issues and the law involved, we affirm the judgment of the trial court, but remand the case for re- sentencing in accordance with Senate Bill 2. The events here began when Litrell Chapman, Alonzo Quinnie, and Willis McNeal twice attempted to steal money during the early morning hours of May 30, 1996. In connection with the first attempt, Chapman borrowed a Smith & Wesson .38 caliber snub-nosed revolver from Michael Lauderdale, which belonged to Clinton Robinson, and he, Quinnie, and McNeal stole a safe from Chapman's cousin. After meeting Robinson, Timothy Larkin, and Aisha Sparks at the home of Chapman's father, Chapman broke into the safe but found only pennies and some marijuana seeds; as a result of this failed attempt to obtain cash, Chapman suggested that he, Quinnie, and McNeal rob David White. At this point, Chapman then gave McNeal a sawed-off shotgun, and the three men drove to White's apartment where, after unscrewing the bulb in a light fixture above the front door, they kicked open the apartment and kitchen doors, and, as White confronted Chapman in the kitchen, Chapman shot him in the upper left part of his chest near his heart at close range. Following a quick, but unsuccessful, search of the apartment for -3- big money, Chapman ran to his car and drove to his father's house, where he met Aisha Sparks and allegedly went to sleep for the night. McNeal and Quinnie then ran from White's apartment to McNeal's car and drove away. White's girlfriend, Loretta Taylor, who had been hiding in the bedroom closet during the robbery, telephoned police and, upon their investigation, she identified someone other than Chapman as the man who searched her bedroom. The following week, Chapman attended White's funeral and bragged to Timothy Larkin about having committed his first murder; he also asked Aisha Sparks to provide him with an alibi. Cleveland police detectives, who continued this investigation, eventuallyarrested Chapman in November, 1996, based in part on information provided to them by Clinton Robinson and Timothy Larkin; the grand jury subsequently indicted Chapman for aggravated murder, aggravated burglary, and aggravated robbery. The court conducted a jury trial which resulted in guilty verdicts against Chapman on all three counts. The court then sentenced him to serve life imprisonment without parole eligibility for twenty years on the aggravated murder conviction, consecutive with concurrent terms of ten to twenty-five years on the aggravated burglary and aggravated robbery convictions. Chapman now appeals raising seven assignments of error for our review. The first assignment of error states: LITRELL CHAPMAN 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 -4- AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO THE INCLUSION OF A STATEMENT THAT HAD BEEN ORDERED SUPPRESSED. Chapman contends his counsel denied him his right to effective assistance of counsel at trial by failing to object to Detective Michael Beamon's testimony about oral statements Chapman made concerning his alibi and his theory of who killed White--statements which he argues the court had earlier suppressed. The state urges that defense counsel provided Chapman with effective assistance of counsel, because the court did not suppress the oral, custodial statements Chapman made to Detective Beamon. The issue then presented for our review is whether Chapman's defense counsel denied him effective assistance of counsel by failing to object to Detective Beamon's testimony regarding the oral statements. In considering a claim involving ineffective assistance of counsel, the court in Strickland v. Washington (1984), 466 U.S. 668 set forth a two-part test at 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. The record before us reveals that on November 25, 1996, Chapman made oralstatements concerning his alibi and his theory of who killed White; however, on the same day, he later signed a form -5- refusing to make a statement but wrote: I was not there and I don't know what you are talking about. In reviewing the transcript of the hearing regarding the motion to suppress these oral and written statements, the court concluded: On the statement of November 25th, 1996, the alleged written statement is suppressed; * * *. (Emphasis added). The court did not, however, suppress Chapman's oral statements made prior to his written statement. Thus, Chapman has not shown that his counsel, by failing to object to Detective Beamon's testimony, made errors, so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, and, therefore, this element of the Strickland test has not been satisfied. Accordingly, this assignment of error is overruled. The second assignment of error states: LITRELL CHAPMAN'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR WHEN EVIDENCE WAS PRESENTED IN DIRECT CONTENTION OF THE TRIAL COURT'S ORDER NOT TO INCLUDE TESTIMONY REGARDING THE DETAILS OF ARREST. Chapman contends the prosecutor engaged in misconduct by presenting the testimony of Officers Todd Knupsky and Gregory Cook, regarding his resisting arrest and subsequent flight, which, he claims, the court previously ruled inadmissible on a motion in limine. The state urges the prosecutor did not engage in misconduct in -6- offering this testimony because the court did not rule it inadmissible. The issue then presented for our review is whether the prosecutor engaged in misconduct by presenting evidence which Chapman claims the court previously ruled inadmissible. The two-part test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused. See State v. Moore (1998), 81 Ohio St.3d 22; State v. Smith (1984), 14 Ohio St.3d 13. Here, the record reveals that Chapman moved the court in limine to exclude testimony, regarding the officers' attempts to arrest him and his subsequent flight from arrest. In reviewing the transcript, the record reveals the court did not rule this evidence inadmissible, but stated: THE COURT: I'm going to grant his motion in limine and exclude any information about his flight and his arrest. [sic] That does not pertain to the aggravated murder that we're here to determine. * * * THE COURT: So your opening statement should only pertain to the warrant for this alleged aggravated murder, and then his arrest in connection with it. If there is evidence of a flight, there is evidence of a flight [sic], that's clearly admissible here. (Emphasis added). Therefore, the prosecutor did not act improperly by presenting the testimony of the officers, because the court did not rule it inadmissible; thus, the first element of the test for prosecutorial misconduct has not been satisfied. Accordingly, this assignment of error is overruled. The third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICAL ERROR WHEN IT PERMITTED IRRELEVANT EVIDENCE TO BE PRESENTED IN DIRECT CONTENTION OF ITS ORDER NOT TO INCLUDE TESTIMONY REGARDING THE DETAILS OF ARREST AND IN VIOLATION OF EVID.RULES 401, 402 AND 403. Chapman contends the trial court erred when it admitted irrelevant evidence regarding resisting arrest and subsequent flight, citing its prejudicial effect on the jury. The state urges the court properly admitted that evidence, because it is probative of his guilt. The issue then presented for our review is whether the court erred when it admitted the evidence regarding Chapman's resisting arrest and subsequent flight. In State v. Williams (1997), 79 Ohio St.3d 1, the court stated in relevant part at 11: * * *. `It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.' (Citations omitted). Here, the trial court admitted evidence pertaining to Chapman's resisting arrest and flight, which is admissible as evidence of his consciousness of guilt. Accordingly, the trial court did not err concerning this matter, and this assignment of error is overruled. The fourth assignment of error states: THE VERDICTS FINDING LITRELL CHAPMAN GUILTY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Chapman contends his convictions are against the manifest weight of the evidence, urging that because the state's witnesses lacked credibility, it failed to prove his guilt beyond a reasonable doubt. The state urges the cumulative testimony of its witnesses proved guilt beyond a reasonable doubt. The test to determine whether a conviction is against the manifest weight of the evidence is found in State v. Martin (1983), 20 Ohio App.3d 172, at 175: * * *. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed * * *. In this case, the state assumed the burden to prove Chapman's guilt beyond a reasonable doubt in connection with the indictments for aggravated murder, aggravated burglary, and aggravated robbery. R.C. 2903.01 provides the elements of aggravated murder: (B) No person shall purposely cause the death of another while committing or attempting to commit * * * aggravated robbery or robbery, aggravated burglary or burglary * * *. R.C. 2911.11 provides the elements of aggravated burglary: (A) No person, by force * * * shall trespass in an occupied structure * * * with purpose to commit therein any theft offense * * * when -9- any of the following apply: * * * (3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. R.C. 2911.01 provides the elements of aggravated robbery: (A) No person, in attempting or committing a theft offense * * * shall * * *: (1) Have a deadly weapon * * * on or about his person or under his control; * * *. Here, the state presented Clinton Robinson, Timothy Larkin, Aisha Sparks and Willis McNeal, Jr., all of whom provided testimony that on the morning of May 30, 1996, Chapman suggested that he, McNeal, and Quinnie rob David White; that Chapman carried a .38 caliber revolver and gave McNeal a sawed-off shotgun; that Chapman, Quinnie, and McNeal forcibly entered White's apartment with an intent to rob him; that Chapman fatally shot White during the course of the robbery; that Chapman later admitted to Larkin that he killed White, and also tried to convince Sparks to provide him with an alibi. The defense presented only one witness, Loretta Taylor, White's girlfriend who witnessed the shooting. She testified that she did not know the number of men who broke into White's apartment; that she saw one man, not Chapman, in her bedroom; and that she heard a voice in the living room, not Chapman's, asking Where's the big money? After reviewing the entire record and weighing the evidence presented by the state and all reasonable inferences, and considering the credibility of the witnesses, we conclude the jury -10- did not lose its way or create a manifest miscarriage of justice in connection with Chapman's convictions, because it could reasonably have found the witnesses credible, and that the greater amount of credible evidence established Chapman's guilt beyond a reasonable doubt. The fact that Loretta Taylor did not see Chapman or hear his voice after the shooting did not compel the jury to acquit Chapman, because witnesses saw all three men enter White's apartment, and Chapman admitted to Larkin that he killed White. Accordingly, this assignment of error is overruled. The fifth assignment of error states: IN THIS CASE, THE OFFENSES OF AGGRAVATED ROBBERY AND AGGRAVATED BURGLARY ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE CONTEMPLATION OF R.C. 2941.25, AND THE SEPARATE CONVICTIONS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY GUARANTEED BY ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Chapman contends that aggravated robbery and aggravated burglary are allied offenses of similar import and, therefore, his convictions for both offenses constitute a double jeopardy violation. The state urges that aggravated robbery and aggravated burglary are not allied offenses of similar import, because their elements are dissimilar, and Chapman's convictions do not violate double jeopardy. R.C. 2941.25 provides the basis for our analysis of whether aggravated burglary and aggravated robbery are allied offenses of similar import, and whether Chapman's convictions for both offenses -11- constitute a double jeopardy violation. It states in relevant part: (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, * * * the defendant may be convicted of all of them. In State v. Frazier (1979), 58 Ohio St.2d 253, the court held that aggravated robbery and aggravated burglary are not allied offenses of similar import, where the defendant initially committed a burglary by forcing the victim's door open with the intent to take her property, and then subsequently committed a separate offense of robbery by actually taking that property. Following that reasoning, we have concluded that Chapman committed aggravated burglary when he forced his way into White's occupied apartment with the purpose to steal money; and he committed a separate offense of aggravated robbery when he subsequently attempted to steal money, having a firearm in his possession. Therefore, in this case, the offenses of aggravated burglary and aggravated robbery are not allied offenses of similar import, and Chapman's convictions do not constitute a double jeopardy violation. Accordingly, this assignment of error is overruled. The sixth assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO SENTENCE LITRELL CHAPMAN PURSUANT TO SENATE BILL 2. Chapman contends that the trial court committed plain error -12- when it failed to sentence him for aggravated burglary and aggravated robbery in accordance with Senate Bill 2, arguing that although he committed the offenses on May 30, 1996, the court sentenced him after July 1, 1996, the effective date of that bill, and should have applied its provisions. The state concedes this assignment of error, but reserves the right to enforce the trial court's original sentences if the Ohio Supreme Court rules otherwise on this matter. The issue then presented for our review is whether the trial court committed plain error when it failed to sentence Chapman for aggravated burglary and aggravated robbery in accordance with Senate Bill 2. We recognize this issue has been appealed to the Ohio Supreme Court and is presently under consideration by that court. In State v. Delgado (April 9, 1998), Cuyahoga App. No. 71497, unreported, this court held in an en banc decision, that a defendant who commits an offense prior to the effective date of Senate Bill 2, but is sentenced after that date to a term of incarceration, is entitled to be sentenced in accordance with Senate Bill 2. Here, on April 11, 1997, the trial court sentenced Chapman in accordance with the law in effect on the date he committed the offenses, May 30, 1996, which defined aggravated burglary and aggravated robbery as aggravated felonies of the first degree, punishable by a term of ten to twenty-five years incarceration. However, Senate Bill 2 reduced those offenses to first degree felonies, punishable by a term of three to ten years incarceration. -13- We are, therefore, constrained to remand this case for re- sentencing in accordance with Senate Bill 2. The seventh assignment of error states: LITRELL CHAPMAN WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHEN TRIAL COUNSEL FAILED TO OBJECT TO HIS SENTENCE, WHICH WAS ILLEGAL. Chapman urges that, if this court concludes he waived his right to appeal the aggravated burglary and aggravated robbery sentences, because he failed to object to them at trial, then we should further hold his counsel's failure to object to those sentences denied him effective assistance. However, because we have reviewed his previous assignment of error in connection with those sentences, this assignment of error is moot and we are not obligated to consider it. See App.R. 12(A)(1)(c). The judgment of conviction as to all counts is affirmed, but the matter is remanded for sentencing in accordance with State v. Delgado, supra. -14- 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 re-sentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., TIMOTHY E. McMONAGLE, 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 of decision by the .