COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73034 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANDREW GEDSON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-338521 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: GINA VILLA (#0042020) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA KOCH WINDHAM (#0055934) The Bevelin House 2913 Clinton Avenue Cleveland, Ohio 44113-2940 SPELLACY, J.: Defendant-appellant Andrew Gedson ( appellant ) appeals from his conviction for felonious assault and aggravated robbery. -2- Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S CRIM.R. 29 MOTION FOR ACQUITTAL ON THE FELONIOUS ASSAULT CHARGE AS FELONIOUS ASSAULT AND AGGRAVATED ROBBERY ARE ALLIED OFFENSES OF SIMILAR IMPORT. II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHT. III. APPELLANT'S FELONIOUS ASSAULT AND AGGRAVATED ROBBERY CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTIONS FOR FELONIOUS ASSAULT AND AGGRAVATED ROBBERY. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. Appellant was indicted for charges of felonious assault and aggravated robbery, both with aggravated felony and firearm specifications. Appellant stipulated to the aggravated felony specifications. The case was tried to a jury and the following testimony was adduced. On May 30, 1995, Randy Williams cashed a $2,048.00 tax refund check. He intended to use the money to purchase an automobile but it was too late in the day to complete the transaction. The following day, May 31, 1995, Williams went to the projects on West 7thStreet to visit a friend. He still had the tax refund money on his person. After Williams left the people with whom he was socializing, he saw appellant. Williams had known appellant for -3- approximately a year and considered appellant to be a friend. Williams asked appellant for a ride. Appellant said he had something to do but would return later and give Williams a ride. Appellant returned two or three hours later. Williams satin the back seat behind appellant. A woman Williams knew as Cassandra was driving. The three left the projects and drove for ten to fifteen minutes when Cassandra stopped the vehicle. Appellant turned around to face Williams. Appellant was holding a nine millimeter Baretta gun and told Williams to drop down and give appellant his money. Williams thought appellant was joking but, when Williams did not give appellant his money, the two began struggling. The two men exited the automobile and continued the altercation. Appellant hit Williams with his hands and with the firearm. Williams managed to get away from appellant and began running. Appellant hit Williams from behind, knocking Williams to the ground. Appellant struck Williams on the head with the pistol more than once. Williams saw appellant's hand in his pocket but eventually lost consciousness from the blows to his head. Williams awoke in the hospital. His right leg was severely injured although Williams had no memory of how the injury occurred. A major artery in his leg had broken and was surgically replaced. Pins and screws were inserted to hold the broken bone in his leg together. The doctors thought the leg would have to be amputated but a second surgery successfully restored circulation in Williams' leg. Williams told his mother what had transpired and identified -4- appellant as the person who robbed him. Williams did not tell a hospital social worker the identity of his attacker. He did inquire about a Victims of Crime program in which he could be reimbursed for his monetary loss. Williams filed a report regarding the incident with the Victims of Crime program in October. During his hospital stay, Williams attended physical therapy. While at one of these sessions, a young woman approached Williams and asked if appellant could speak to Williams. Williams saw appellant standing in the doorway but refused the request. Williams told the woman that appellant could speak to his mother and stepfather who were with him but appellant and the woman left without speaking to either. After this incident, Williams' name was changed on the hospital records to prevent anyone from discovering he was in the hospital. Williams apparently made a police report while in the hospital which identified appellant as the suspect. The police told Williams that he had to make a statement. Williams did not make a statement until the following February. Williams testified he delayed making a statement to police because there was a warrant for his arrest due to an unpaid speeding ticket. In his police statement, Williams averred he waited because of the condition of his leg which hampered his movement. Josephine Williams, the victim's mother, testified she saw her son in the hospital on the day of the incident. His face was quite swollen and badly bruised. Randy Williams' eyes were red. -5- Josephine Williams confirmed her son's testimony that appellant attempted to speak to Randy Williams while he was in the hospital. Defense witness Billy Ward testified that he knew Williams and appellant. In 1995, Ward was in a bar with both men. Williams had just received his income tax refund check and took appellant and Ward out that evening. Ward did not know the exact date this occurred but stated it was not on May 31, 1995. Della Watson testified that she and appellant were dating at the time of the incident. The two left for Toronto, Canada on May 30, 1995, and stayed about five days. She no longer had any receipts to offer as proof of the vacation. The jury convicted appellant of both counts of the indictment. Appellant was acquitted of the firearm specifications. II. In his first assignment of error, appellant contends the trial court erred by not finding aggravated robbery and felonious assault to constitute allied offenses of similar import. Appellant asserts that the state's evidence was that appellant pointed a gun at Williams. While the two struggled, appellant struck Williams with a firearm while placing his hand in Williams' pocket. Appellant argues that based on the evidence adduced at trial, the state relied on the same conduct to support both offenses. R.C. 2941.25 provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. -6- (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 indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In Newark v. Vazirani (1990), 48 Ohio St.3d 81, syllabus, the Supreme Court of Ohio held: Under R.C. 2941.25 a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses. The elements of felonious assault are set forth in R.C. 2903.11: (A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. R.C. 2911.01 governs aggravated robbery. It states: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either -7- of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. In State v. Preston (1986), 23 Ohio St.3d 64, the court held that, under the facts of that case, the commission of aggravated robbery did not automatically result in the commission of felonious assault. Subsequent decisions have expanded the holding of Preston to a general rule. State v. Smalcer (June 4, 1992), Cuyahoga App. No. 60863, unreported. This court specifically has held that felonious assault and aggravated robbery are not allied offenses of similar import. State v. Carter (Jan. 14, 1993), Cuyahoga App. No. 61502, unreported. The commission of one offense will not necessarily constitute the commission of the other. State v. Sowell (May 27, 1993), Cuyahoga App. No. 62601, unreported. In the instant case, the evidence adduced at trial was that appellant inflicted serious physical harm on Williams by striking him repeatedly with a firearm and then causing serious harm to Williams' leg after rendering Williams unconscious. Williams recalled that appellant was reaching into Williams' pocket shortly before or as Williams lost consciousness. This is when the robbery occurred. After robbing Williams, appellant injured Williams' leg to such an extent that amputation was contemplated. -8- Based on the facts of this case and the applicable case law, appellant's convictions for felonious assault and aggravated robbery were not allied offenses of similar import. Appellant's first assignment of error is overruled. III. Appellant's second assignment of error asserts that he did not receive effective assistance of counsel. Appellant's contention is based on the argument that his trial counsel failed to conduct pre- trial investigation and did not object to testimony regarding a police statement Williams made while in the hospital. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. at 694. Appellant contends that the failure of his trial attorney to conduct pre-trial investigation is apparent from the record. Appellant relies on supposed inconsistencies in the testimony of -9- Williams to support his argument. Appellant bases his contention primarily on Williams' testimony that he was struck on the head with appellant's gun and yet the hospital records do not note any injuries to Williams' head. Appellant maintains that his trial counsel did not conduct a pre-trial investigation because this was not brought out at trial. Appellant's trial counsel raised this exact point during closing argument. Therefore, it is apparent from the record that appellant's trial attorney did review Williams' medical record. Williams next asserts that the testimony of Josephine Williams, the mother of the victim, does not stand on its own as Williams did not inform a hospital social worker that appellant was his assailant or make a police statement for nine months. Frankly, appellant's argument makes little sense. Josephine Williams certainly could testify as to her own observations of appellant's condition at the hospital and to her son's identification of appellant as his attacker. Williams' delay in making a police statement was brought out repeatedly at trial as were appellant's other arguments on appeal. Appellant next objects to the prosecution's use of a police report Williams made in the hospital which identified appellant as the perpetrator. Williams was briefly questioned about the report on redirect. The police report was not admitted into evidence. Appellant's counsel did not object to the questioning. Based on the limited testimony regarding the police report, appellant cannot -10- show that the outcome of the trial would have been otherwise if his trial counsel had objected. Appellant's second assignment of error lacks merit. IV. In his third assignment of error, appellant contends that the verdict was against the manifest weight of the evidence. Appellant argues that Williams was not a credible witness as his testimony regarding his injuries is not supported by the medical records and that his version of events is replete with inconsistencies. Appellant further points out that he was acquitted of the firearm specifications which appellant argues proves that the jury did not believe he had a deadly weapon. When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. That Williams' medical records did not reflect injuries to his -11- head was brought out by defense counsel during closing argument and apparently discounted by the jury. It primarily is the province of the jury to determine the facts. Both Williams and his mother testified as to the injuries to Randy Williams' head. Therefore, there was evidence to prove Williams' head injuries. Further, the element of serious physical harm is shown by the severe injuries to Williams' leg. Appellant makes much of the fact that Williams did not know how the injuries to his leg and foot occurred. But the testimony at trial was that Williams lost consciousness prior to the infliction of those injuries. Appellant beat Williams with his fists and by striking Williams with a gun. Williams lost consciousness and awoke in the hospital with injuries to his leg which nearly caused its amputation. It was logical for the jury to infer that the injuries to Williams' leg and foot were caused by appellant after Williams became unconscious. Appellant next asserts that Williams' testimony was inconsistent because he did not know how he and appellant exited the automobile. This point was brought out during trial for the jury's consideration. That Williams would not remember every moment of a struggle by an assailant holding a weapon is highly likely and hardly the sort of inconsistency which tends to show that the jury clearly lost its way and a manifest miscarriage of justice took place. Appellant's third assignment of error is overruled. V. -12- Appellant's fourth assignment of error challenges the sufficiency of the evidence supporting his convictions for felonious assault and aggravated robbery. Appellant contends that because he was acquitted on the firearm specifications, the jury only could have believed that he inflicted serious physical harm and not that he had a deadly weapon on his person. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. The evidence must be viewed in the light most favorable to the prosecution. State v. Jenks (1991), 71 Ohio St.3d 259. It already has been determined in the previous assignment of error that evidence adduced at trial supported the jury's finding of serious physical harm. Certainly when viewing the evidence in the light most favorable to the prosecution, sufficient evidence was admitted at trial to show that Williams sustained serious physical harm. Appellant's fourth assignment of error is meritless. Judgment affirmed. -13- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. 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 KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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 -14- pursuant to App.R. 22(B) 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 .